UNITED STATES REPORTS VOLUME 155 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1893 AND OCTOBEB=f®SH95!1894 J. C.^^NÄWfüAVIS REPORTER THE BANKS LAW PUBLISHING CO. 21 MURRAY STREET, NEW YORK 1905 Copyright, 1895, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. HORACE GRAY, Associate Justice. DAVID JOSIAH BREWER, Associate Justice. HENRY BILLINGS BROWN, Associate Justice. GEORGE SHIRAS, Jr., Associate Justice. HOWELL EDMONDS JACKSON, Associate Justice.1 EDWARD DOUGLASS WHITE, Associate Justice. RICHARD OLNEY, Attorney General. LAWRENCE MAXWELL, Jr., Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. 1Mr. Justice Jackson, by reason of illness, heard argument in no case rgued after October 23, 1894. iii TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Adams, Postal Telegraph Cable Company v. . . . 688 Alabama v. Postal Telegraph Cable Company . . 482 Allis v. United States.........................117 Allred, United States v........................591 Alsop w. Riker ........ 448 Alsop, Riker v......... 448 American Loan and Trust Company, Burke v. . . 534 Austin v. United States........................417 Beggs, Wright -y................................54 Blackfeather, Cherokee Nation v. . . . . 218 Blackfeather, United States v. . . . . .180 Bobb v. Jamison................................416 Breakwater, The........................ . . 252 Brimson, Interstate Commerce Commission v. . . 3 Brown, East Lake Land Company v................488 Brown -y. Spilman..............................665 Burke v. American Loan and Trust Company . . 534 California, Hooper v................. . 648 Campbell v. Haverhill..........................610 Cane Creek Township, Massachusetts and Southern Construction Company v. . . . . . 283 Chappell v. Water worth . . . . . .102 Chase v. United States.........................489 Cherokee Nation v. Blackfeather................218 Cherokee Nation v. Journeycake .... 196 Coe, United States v. ..........................76 Conklin, Wehrman v. . 314 Cooper v. Newell............................. 532 ¥ VI table ok Contents. Table of Cases Reported. PASS Coupe v. Royer............................ . . 565 Creager, Potts v...................................597 Cronan, Pepke v....................................100 Cunningham, Lake Superior Ship Canal, Railway and Iron Company v.................................354 Davis v. Schwartz..................................631 Deering v. Winona Harvester Works .... 286 Deland v. Platte County....................... . 221 Dick v. Foraker....................................404 Donahue v. Lake Superior Ship Canal, Railway and Iron Company........................................386 East Lake Land Company v. Brown .... 488 Ellison, Linford -v.............................. 503 Eno, New York v.....................................89 Erhardt v. Schroeder ....... 124 Evansville Bank v. German-American Bank . . 556 Finan, Lake Superior Ship Canal, Railway and Iron Company v......................................385 Foraker, Dick ....... . 404 George H. Hammond Company, Horne u 393 German-American Bank, Evansville Bank v. . . 556 Glover, Indiana ex rel. Stanton v. ..... 513 Greeley v. Lowe............................... . 58 Gunnison, United States ..... . 389 Haverhill, Campbell v. ...... 610 Hedden, Origet v.............................. . 228 Hill, Swan v.......................................394 Holmes, Northern Pacific Railroad Company v. . . 137 Hooper v. California ....... 648 Horne v. George H. Hammond Company . . . 393 In re New York and Porto Rico Steamship Company, Petitioner . ...........................523 TABLE OF CONTENTS. vii Table of Cases Reported. PAGB In re Rice, Petitioner . . . . . ... 396 Indiana ex rel. Stanton v. Glover...................513 Ingraham v. United States ...... 434 Interstate Commerce Commission v. Brimson . . 3 Interstate Transportation Company, Texas and Pacific Railway Company v...............................585 Jahn, United States v. ...... 109 James, McKnight v...................................685 Jamison, Bobb v. ....... 416 Jones, Pennsylvania Railroad Company v. . . . 333 Journeycake, Cherokee Nation v. .... 196 Keep, Warren v......................................265 Keokuk and Hamilton Bridge Company, Pittsburgh, Cincinnati and St. Louis Railway Company v. . 156 Lake Superior Ship Canal, Railway and Iron Company v. Cunningham...................................354 Lake Superior Ship Canal, Railway and Iron Company, Donahue v. ....................................386 Lake Superior Ship Canal, Railway and Iron Company v. Finan . 385 Lamont, United States ex rel. The International Con- tracting Company v..............................303 Lewis v. Pima County.................................54 Linford v. Ellison............................ . 503 Lloyd v. Matthews...................................222 Lowe, Greeley v. . 58 McCabe v. Matthews................................55(<* McKnight v. James...................................685 Magone, Muser v.....................................240 Market Street Cable Railway Company v. Rowley . 621 Massachusetts, Plumley v............................461 Massachusetts and Southern Construction Company v. Cane Creek Township.............................283 Matthews, Lloyd v. ...... 222 viii TABLE OF CONTENTS. Table of Cases Reported. PAGE Matthews, McCabe v............. . . 550 Muser v. Magone . . *...........................240 New York v. Eno ....... 89 New York and Porto Rico Steamship Company, Peti- tioners, In re.................. . ■ . 523 Newell, Cooper v.................................532 Northern Pacific Railroad Company v. Holmes . . 137 Northern Pacific Railroad Company v. O’Brien . . 141 O’Brien, Northern Pacific Railroad Company v. . . 141 Olin v. Timken ........ 141 Origet v. Hedden....................... . 228 Pearce v. Texas..................................311 Pennsylvania Railroad Company v. Jones . . . 333 Pennsylvania Railroad Company v. Stewart . . 333 Pepke v. Cronan..................................100 Pima County, Lewis v..............................54 Pittsburgh, Cincinnati and St. Louis Railway Company v. Keokuk and Hamilton Bridge Qompany . . 156 Platte County, Deland v..........................221 Plumley v. Massachusetts.........................461 Postal Telegraph Cable Company v. Adams . . 688 Postal Telegraph Cable Company v. Alabama, . . 482 Potter v. United States..........................438 Potts v. Creager.................................597 Rice, Petitioner, In re.............° . 396 Riker v. Alsop.................. . . . 448 Riker, Alsop v...............................448 Robb v. Vos.......................................13 Rowley, Market Street Cable Railway Company v. . 621 Royer, Coupe v...................................565 Schillinger v. United States...... 163 Schroeder, Erhardt v.................. 124 Schwartz, Davis v......................... 631 Sherman v. United States . . . . . 673 TABLE OF CONTENTS. ix Table of Cases Reported. PAGE Sipperley v. Smith......................... 86 Smith, Sipperley v.................................86 South Carolina v. Wesley..........................542 Spilman, Brown v..................................665 Stewart, Pennsylvania Railroad Company v. . . 333 Swan v. Hill......................................394 Talbert v. United States............................45 Talbert, United States v............................45 Texas, Pearce v.................../ . . . 311 Texas and Pacific Railway Company v. Interstate Trans- portation Company ....... 585 Thompson v. United States.........................271 Timken, Olin v............................... . 141 United States ex rel. The International Contracting Com- pany v. Lamont ....... 303 United States, Allis v............................117 United States v. Allred...........................591 United States, Austin v...........................417 United States v. Blackfeather.....................180 United States, Chase v. . 489 United States v. Coe...............................76 , United States v. Gunnison . . . . . . 389 United States, Ingraham v.........................434 United States v. Jahn.............................109 United States, Potter -w. ..... . 438 United States, Schillinger w......................163 United States, Sherman v. . . . . . . 673 ! United States v. Talbert...........................45 United States, Talbert v>..........................45 I United States, Thompson v. ..... 271 United States, Westmoreland.......................545 I Vos, Robb v. . 13 Warren v. Keep....................................265 Water worth, Chappell v...........................102 Wehrman v. Conklin................................314 x TABLE OF CONTENTS. Table of Cases Reported. __ _ PAGE Wesley, South'Carolina v............................542 Westmoreland -w. United States......................545 Winona Harvester Works, Deering v. ... 286 Wright v. Beggs.................................. . 54 Wright v. Yuengling..................................47 Yuengling, Wright v..................................4% Index . , ........................703 TABLE OF CASES CITED IN OPINIONS. PAGE Abbotsford, The, 98 U. S. 440 637 Accident Ins. Co. v. Crandal, 120 U. S. 527 612 Adams v. Woods, 2 Cranch, 336 616 Ager v. Murray, 105 U. S. 126 619 Alert, The, 40 Fed. Rep. 836 H9.7 K9R KOq Alert, The, 44 Fed. Rep. 685; 61 Fed. Rep. 113 529 Alexander, In re, 37 Iowa, 454 638 Alexander’s Cotton, 2 Wall. 404 427 Allen v. United States, 26 C. Cl. 445 685 American Construction Co. v. Jacksonville Railway, 148 U. S. 372 403 American F. L. M. Co. v. Benson, 33 Fed. Rep. 456 73 American Ins. Co. v. Canter, 1 Pet. 511 85 Ames v. Holderbaum, 42 Fed. Rep. 341 73 Ames v. Kansas, 111 U. S. 449 487 Anderson v. Dunn, 6 Wheat. 204 5 Anderson v. Watt, 138 U. S. 694 394 Andreae v. Redfield, 98 U. S. 225 620 Anthony v. Louisville & Nashville Railroad, 132 U. S. 172 123 Armstrong v. United States, 13 Wall. 154 425 Arndt v. Griggs, 134 U. S. 316 332, 411 Arrowsmith v. Gleason, 129 U. S. 86 38 Ashcroft v. Walworth, 1 Holmes, 152 619 Asher v. Texas, 128 U. S. 129 653 Ashley v. Ryan, 153 U. S. 436 652, 696 Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31 138 Astiazaran v. Santa Rita Land & f Mining Co., 148 U, S. 80 84 PAGE Atlantic Works v. Brady, 107 U. S. 192 607 Auffinordt v. Hedden, 137 U. S. 310 236, 237, 238, 247 Aulman v. Aulman, 71 Iowa, 124 638, 641 Aurora City v. West, 7 Wall. 82 613 Baker v. Humphrey, 101 U. S. 494 327 Balkam v. Woodstock Iron Co., 154 U. S. 177 614 Baltimore & Potomac Railroad v. Hopkins, 130 U. S. 210 508, 512 Bank of Augusta v. Earle, 13 Pet. 519 652 Bank of the United States v. Bank of Washington, 6 Pet. 8 310 Barbed Wire Patent, 143 U. S. 275 300 Barden v. Northern Pacific Railroad, 154 U. S. 288 375 Barkow v. Sanger, 47 Wis. 500 645 Barney v. Baltimore City, 6 Wall. 280 70 Barney v. Oelrichs, 138 U. S. 529 620 Barton v. White, 144 Mass. 281 619 Battin v. Taggert, 17 How. 74 630 Bauserman v. Blunt, 147 U. S. 647 614 Bean v. Patterson, 122 U. S. 496 638 Bean v. Smith, 2 Mason, 252 328 Beatty’s Administrators v. Burnes’s Administrators, 8 Cranch,98 619 Belden Manufacturing Co. v. Challenge Corn Planter Co., 152 U. S. 100 629 Bell v. Morrison, 1 Pet. 351 617 Bennet v. Musgrove, 2 Ves. Sen. 51 328 Berryman v. Wise, 4 T. R. 366 438 Bischoff v. Wethered, 9 Wall. 812 578, 630 Bissell v. Penrose, 8 How. 317 373 xi xii TABLE OF CASES CITED. PAGE Blake v. Robertson, 94 U. S. 728 268 Blake v. United States, 103 U. S. 227 594 Blease v. Garlington, 92 U. S. 1 84 Blenkinsopp v. Blenkinsopp, 1 De G., M. & G. 495 328 Blennerhassett v. Sherman, 105 U. S. 100 639 Block v. Darling, 140 U. S. 234 123 Bloomington Township v. Na- tional School Furniture Co., 107 Ind. 43 522 Bond v. Brown, 12 How. 254 637 Boone v. Chiles, 10 Pet. 177 84 Boyce v. Grundy, 3 Pet. 210 323 Boyd v. Mill Creek School Town- ship, 114 Ind. 210 519 Brashear v. Mason, 6 How. 92 308 Brewer v. Blougher, 14 Pet. 178 657 Brewster v. Shuler, 37 Fed. Rep. 785 149 Brickill v. City of Hartford, 49 Fed. Rep. 372 613 Brimmer v. Rebman, 138 U. S. 78 469 Britannia, The, 153 U. S. 130 264 Broderick’s Will, 21 Wall. 503 324 Brooklyn, The, 62 Fed. Rep. 759 262 Brown v. American Loan &c. Co., 31 Fed. Rep. 516 541 Brown v. Davis, 116 U. S. 237 52 Brown v. District of Columbia, 130 U. S. 87 608 Brown v. Piper, 91 U. S. 37 607 Brown v. Saratoga Railroad, 18 N. Y. 495 613 Brown v. Vandergrift, 80 Penn. St. 142 670 Buckstaff v. Russell, 151 U. S. 626 235 Burns v. Meyer, 100 U. S. 671 577 Butchers’ Union Co. v. Crescent City Co., Ill U. S. 746 662 Butler v. Chambers, 36 Minn. 69 478 Butler®. Hildreth,5 Met. (Mass.) 49 42 Butterworth v. Hoe, 112 U. S. 50 308 Buzard v. Houston, 119 U. S. 347 328 Cadogan v. Kennett, Cowp. 432 639 Cadwalader v. Zeh, 151 U. S. 171 131 California v. Central Pacific Rail- road Co., 127 U. S. 1 652 California Artificial Stone Paving Co. v. Perine, 7 Sawyer, 190; »S. G. 8 Fed. Rep. 821 180 Campbell v. Wilcox, 10 Wall. 421 613 Carey v. Houston & Texas Rail- way, 150 U. S. 170 116 Carlisle’s Case, 16 Wall. 147 425 Carpenter v. Talbot, 33 Fed. Rep. 537 73 PAGE Carper v. Fitzgerald, 121U. S. 87 687 Carr v. Thompson, 87 N. Y. 160 460 Chapman v. Brewer, 114 U. S. 158 75, 325 Chapman v. Handley, 151 U. S. 443 647 Chappell v. Waterworth, 155 U. S. 102 487, 489 Chase v. Walters, 28 Iowa, 460 638 Chicago & Alton Railroad v. Wig- gins Ferry Co., 119 U. S. 615 227 Clark v. Smith, 13 Pet. 195 75, 324 Clearwater v. Meredith, 1 Wall. 25 613 Clements v. Moore, 6 Wall. 299 639 Cleveland, Cincinnati &c. Rail- way v. Backus, 154 U. S. 439 697 Cliquot’s Champagne, 3 Wall. 114 249 Cocks v. Izard, 7 Wall. 559 38 Coffin v. Ogden, 18 Wall. 120 302 Columbia & Puget Sound Rail- road v. Hawthorne, 144 U. S. 202 612 Columbus, The, Abbott’s Adm. 384 262 Commercial Bank ®. Armstrong, 148 U. S. 50 562, 564 Commissioner of Patents v. Whiteley, 4 Wall. 522 308 Commissioners of Taxing Dist. of Brownsville v. Loague, 129 U. S. 493 308 Commonwealth v. Boutwell, 13 Wall. 526 308 Commonwealth v. Merrill, 8 Allen, 545 274 Commonwealth v. Plumley, 156 Mass. 236 465 Connihan v. Thompson, 111 Mass. 270 43 Conrow v. Little, 115 N. Y. 387 41 Conroy v. Woods, 13 Cal. 626; N. G. 73 Am. Dec. 605 329 Cook v. Castner, 9 Cush. 266 612 Cook v. Hart, 146 U. S. 183 96, 101 Cook County v. Calumet Canal & Dock Co., 138 U. S. 635 228 Cooper, In re, 143 U. S. 472 403 Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727 661 Cooper’s Case, 32 Vermont, 253 5 Corn Planter Patent, 23 Wall. 181 302 Covell v. Heyman, 111 U. S. 176 95 Cox v. Dunham, 4 Halst. Ch. (8 N. J. Eq.) 594 329 Crane v. Price, Webster’s Pat. Cas. 409 607 Crawford v. Neal, 144 U. S. 585 267, 637 Crosby Valve Co. v. Safety Valve Co., 141 U. S. 441 268 TABLE OE CASES CITED. xiii PAGE Crutcher v. Kentucky, 141 U. S. 47 653, 654 Cummings v. National Bank, 101 U. S. 153 75 Davenport v. Cummings, 15 Iowa, 219 645 Davis v. Mercantile Trust Co., 152 U. S. 590 89 De Groot v. United States, 5 Wall. 419 430 Delaware Railroad Tax Case, 18 Wall. 206 652 Dennison v. United States, 25 C. Cl. 304 685 Denny v. Pironi, 141 U. S. 121 394 Dent v. West Virginia, 129 U. S. 114 472 Detroit Free Press Co. v. Board of Auditors, 47 Mich. 135 309 Dickerson v. Colgrove, 100 U. S. 578 327 i Dobson v. Hartford Carpet Co., 114 U. S. 439 268 Dodge v. Griswold, 8 N. H. 425 329 Doolan v. Carr, 125 U. S. 618 374 Downs v. Kissam, 10 How. 102 641 Doyle v. Maguire, 38 Iowa, 410 638 Doyle v. Railway Co., 147 U. S. 413 123 Drexel v. Berney, 122 U. S. 241 327 Ducat v. Chicago, 10 Wall. 410 652 Duer v. Lock Co., 149 U. S. 216 155 Duffield v. Hue, 26 Weekly Notes, 387 673 Duncan, In re, 139 U. S. 449 96 Duncan v. Missouri, 152 U. S. 377 417 Dunlap v. Schofield, 152 U. S. 244 584 Easton v. Salisbury, 21 How. 426 374 Eaves, In re, 30 Fed. Rep. 21 594 Echols v. Hubbard, 7 South. Rep. 817 323 Ellison v. Linford, 7 Utah, 166 507 Estes v. Gunter, 122 U. S. 450 638, 639, 647 Estwick v. Caillaud, 5 T. R. 420 640 Evans v. United States, 153 U. S. 584 446 Exchange, The, 7 Cranch, 116 544 Farwell v. Howard, 26 Iowa, 381 641 Fassett, Petitioner, In re, 142 U. S.479 532 Favorita, The, 8 Blatch. 539; 18 Wall. 598 262 Felton v. United States, 96 U. S. 699 446 Fond du Lac County v. May, 137 U. S. 395 625 Fonda, Ex parte, 117 U. S. 516 95, 101 Frederick, In re, 149 U. S. 70 96 French v. Edwards, 13 Wall. 506 129 PASS Frost v. Spitley, 121 U. S. 552 325, 414, 415 Frost v. Warren, 42 N. Y. 204 645 Furrer v. Ferris, 145 U. S. 132 267, 637 Gable v. Wetherholt, 116 Ill. 313 327 Gage v. Herring, 107 U. S. 640 52 Gage v. Parry, 69 Iowa, 605 641 Gaines v. Thompson, 7 Wall. 347 308 Garner v. Second National Bank, 151 U. S. 420 638 Georgia v. Jesup, 106 U. S. 458 545 Germania Ins. Co. v. Wisconsin, 119 U. S. 473 487 Gibbons v. Ogden, 9 Wheat. 1 479 Gibbons v. United States, 8 Wall. 269 167 Gibson v. Schufeldt, 122 U. S. 27 647 Gilbert v. United States, 8 Wall. 358 310 Glaspell v. Northern Pacific Rail- road, 144 U. S. 211 116, 140 Glenn v. Garth, 147 U. S. 360 227 Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 196 653 Goff«. Rogers, 71 Ind. 459 645 Goodman «. Niblack, 102 U. S. 556 73 Goodyear Dental Vulcanite Co. v. Davis, 102 U. S. 222 609 Gould v. Rees, 15 Wall. 187 52 Gourko«. United States, 153 U. S. 183 278, 283 Graham v. Bayne, 18 How. 60 637 Grand Gulf Railroad v. Marshall, 12 How. 165 228 Grand Trunk Railway v. Cum- mings, 106 U. S. 700 612 Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581 174 Greeley v. Lowe, 155 U. S. 58 411 Gregory v. Bartlett, 55 Ark. 30 412 Grenada County v. Brogden, 112 U. S. 261 657 Griffin v. Thompson, 2 How. 244 595 Grimsley v. State, 116 Ind. 130 522 Grissom v. Moore, 106 Ind. 296 323 Guidet v. Brooklyn, 105 U. S. 550 54 Hall v. Macneale, 107 U. S. 90 54 Halstead v. Grinnan, 152 U. S. 412 461 Hamilton Co. v. Massachusetts, 6 Wall. 632 652 Hammond v. Hopkins, 143 U. S. 224 461 Hanley v. Donoghue, 116 U. S. 1 227 Hanrick v. Hanrick, 153 U. S. 192 488 Hardee v. Wilson, 146 U. S. 179 89 Hart v. United States, 118 U. S. 62 429 xiv TABLE OF CASES CITED, PAG: Hartford Ins. Co. v. Reynolds, 36 Mich. 502 65' Harvey v. Tyler, 2 Wall. 328 12: Harwood v. Railroad Co., 17 Wall. 78 46: Haussknecht v. Claypool, 1 Black, 431 6L Hawley v. Fairbanks, 108 U. S. 543 64' Haycraft v. United States, 22 Wall. 81 421 Hayden v. Oriental Mills, 15 Fed. Rep. 605 61i Hayward v. National Bank, 96 U. S. 611 46] Heald v. Rice, 104 U. S. 737 62t Heintze v. Bentley, 34 N. J. Eq. (7 Stewart) 562 64£ Henderson v. Carbondale Coal &c. Co., 140 U. S. 25 647 Hennen, Ex parte, 13 Pet. 230 591 Hennessy v. Woolworth, 128 U. S. 438 553 Hicks v. Kelsey, 18 Wall. 670 608 Hill v. United States, 149 U. S. 593 168 Hilton v. Merritt, 110 U. S. 97 131, 247 Holbird v. Anderson, 5 T. R. 235 640 Holland v. Challen, 110 U. S. 15 75, 322, 324, 325, 415 Hollister v. Benedict Mfg. Co., 113 U. S. 59 175 Holmes v. Trout, 7 Pet. 171 83 Holt v. Creamer, 34 N. J. Eq. (7 Stewart) 181 639, 645 Holt v. Rogers, 8 Pet. 420 553 Home Ins. Co. v. New York, 134 U. S. 594 652 Honey Creek School Township v. Barnes, 119 Ind. 213 522 Horn Silver Mining Co. v. New York, 143 U. S. 305 696 Hornbuckle v. Toombs, 18 Wall. 648 86 Horne v. George H. Hammond Co., 155 U. S. 393 534 Horner v. Jobs, 2 Beasley (13 N. J. Eq.), 19 327 Horner v. United States, 143 U. S. 570 113 Hotchkiss v. Greenwood, 11 How. 248 608 How v. Union Mut. Life Ins. Co., 80 N. Y. 32 657 Hoyt v. Horne, 145 U. S. 302 295 Huber v. Nelson Manufacturing Co., 148 U. S. 270 147 Hudson, The, 15 Fed. Rep. 162 527 528 Huntington v. Attrill, 146 U. S.’ 657 487 Huntley v. Kingman, 152 U. S. 527 640 Hurlbut v. Schillinger, 130 U. S. 456 180, 268 Hutchinson v. Watkins, 17 Iowa, 475 638 Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291 615 Inglehart v. Stansbury, 151 U. S. 68 89 Insurance Co. v. Bailey, 13 Wall. 616 328 Insurance Co. v. Folsom, 18 Wall. 237 637 Ives v. Hamilton, 92 U. S. 426 295 Jacob’s Case, 98 N. Y. 98 662 James v. Campbell, 104 U. S. 356 173, 175 Jeffersonville School Township v. Litton, 116 Ind. 467 518, 521 John S. Darcy, The, 29 Fed. Rep. 644 262 Johnson v. Waters, 111 U. S. 640 38 Keach, In re, 14 R. I. 571 619 Keil v. West, 21 Fla. 508 75 Kendall v. Stokes, 3 How. 87 308 Keyes v. Grant, 118 U. S. 25 579 Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274 576 Keystone Mfg. Co. v. Adams, 151 U. S. 139 583 Kilbourn v. Thompson, 103 U. S. 168 4 Kimberly v. Arms, 129 U. S. 512 637 Kirby v. Lake Shore &c. Railroad, 120 U. S. 130 460 Kirk v. Hamilton, 102 U. S. 68 327 Klein v. Hoff heimer, 132 U. S. 367 639 Knote v. United States, 10 C. Cl. 397; 95 U. S. 149 427, 428 Knox County Commissioners v. Aspinwall, 24 How. 376 308 Kohn v. Clement, 58 Iowa, 589 641 Koshkonong v. Burton, 104 U. S. 668 615 Lafayette Ins. Co. v. French, 18 How. 404 652 Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96 39 Leavenworth, Lawrence &c. Railroad v. United States, 92 U. S. 733 374 Leisy v. Hardin, 135 U. S. 100 473, 474 Leloup v. Port of Mobile, 127 U. S. 640 653 Lent v. Tillson, 140 U. S. 316 238 License Tax Cases, 5 Wall. 462 466 Littlefield v. Perry, 21 Wall. 205 269 Litton v. Wright School Town- ship, 127 Ind. 81 522 TABLE OE CASES CITED. XV PAGB Logan v. United States, 144 U. S. 263 274 Lombard v. Dows, 66 Iowa, 243 645 Loney, In re, 134 U. S. 372 96 Loom Co. v. Higgins, 105 U. S. 580 302, 608 Loud v. Pomona Land & Water Co., 153 U. S. 564 554 Lynch v. United States, 137 U. S. 280 508 McAllister v. State, 72 Md. 390 476 McAllister v. United States, 141 U. S. 174 85 McBee v. Marietta &c. Railway, 48 Fed. Rep. 243 73 McCall v. California, 136 U. S. 104 653 McCiain v. Ortmayer, 141 U. S. 419 296, 577 McCluny v. Sllliman, 3 Pet. 270 619 McElmoyle v. Cohen, 13 Pet. 312 618 McLish v. Roff, 141 U. S. 661 114 McNichols v. Rubleman, 13 Mo. App. 515 645 Magniac v. Thomson, 7 Pet. 348 638 Magowan v. New York Belting Co., 141 U. S. 332 609 Maine v. Grand Trunk Railway, 142 U. S. 217 652, 699 Manufacturing Co. ■». Cowing, 105 U. S. 253 268 Marbury v. Madison, 1 Cranch, 137 308 Marshall v. Vicksburg, 15 Wall. 146 613 Maryland v. Baldwin, 112 U. S. 490 517 Massachusetts v. West. Un. Tel. Co., 141 U. S. 40 698 Masterson v. Herndon, 10 Wall. 416 89 Mayfield, In re, 141 U. S. 107 548 Mead v. Combs, 19 N. J. Eq. (4 C. E. Green) 112 645 Mellen v. Moline Malleable Iron Works, 131 U. S. 352 73, 411 Merrill v. Monticello, 138 U. S. 673 518 Metcalf v. Watertown, 153 U. S. 371 614, 615 Miller v. Lockwood, 32 N. Y. 293 645 Miller v. Scammon, 52 N. H. 609 329 Miller v. Wood, 116 N. Y. 351 460 Minnesota v. Barber, 136 U. S. 3!3 469 Minter v. Crommelin, 18 How. 87 374 Mrs. Alexander’s Cotton, 2 Wall. 404 427 Mitchel v. United States, 9 Pet. 711 83 Mohawk Bank v. Atwater, 2 Paige, 54 329 PAGE Monitor Mutual Ins. Co. v. Young, 111 Mass. 537 657 Monticello, The, 15 Fed. Rep. 474 262 Moran v. Sturges, 154 U. S. 256 532 More v. Steinbach, 127 U. S. 70 75 Morgan v. United States, 14 Wall. 531 167 Morrison, Ex parte, 147 U. S. 114 531 Morton v. Nebraska, 21 Wall. 660 374 Moulorw. Am. Life Ins. Co., Ill U. S. 335 122 Mowry v. Whitney, 14 Wall. 620 269 Murphy v. Blair, 12 Ind. 184 329 Myrick v. Michigan Central Rail- road Co., 107 U. S. 102 339 New Orleans v. Benjamin, 153 U. S. 411 114 New Orleans v. Steamship Co., 20 Wall. 387 5 New Orleans Gas Co. v. Louisi- ana Light Co., 115 U. S. 650 471 New Orleans Pacific Railway v. Parker, 143 U. S. 42 647 New York v. Eno, 155 U. S. 89 101 N. Y. & Colorado Mining Co. v. Frazer, 130 U. S. 611 123 N. Y. &c. Steamship Co. v. Rum- ball, 21 How. 372 264 N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S. 205 323 Newhall v. Sanger, 92 U. S. 761 374 Noble v. Union River Logging Railroad, 147 U. S. 165 308 Noles v. State, 24 Ala. 672 313 Norfolk & Western Railroad v. Pennsylvania, 136 U. S. 114 653 Norris v. Jackson, 9 Wall. 125 637 Northern Pacific Railroad v. Amato, 144 U. S. 465 116 Northern Pacific Railroad v. Glas- pell, 4 U. S. App. 238 116 Nudd v. Burrows, 91 U. S. 426 615 Ober v. Gallagher, 93 U. S. 199 69 Oelrichs v. Spain, 15 Wall. 211 38 Oregonian Railway v. Oregon Railway, 10 Sawyer, 464 309 Osborn v. Bank of the United States, 9 Wheat. 738 544 Osborn v. United States, 91 U. S. 474 428 Pacific, The, 21 How. 372 264 Pacific Railroad Commission, In re, 32 Fed. Rep. 251 10 Pargoud’s Case, 13 Wall. 156 425 Parker v. Overman, 18 How. 137 324 Parsons, Ex parte, 150 U. S. 150 403 Parsons v. Bedford, 3 Pet. 433 657 Passavant v. United States, 148 U. S. 214 236, 238, 247 Patterson v. Kentucky, 97 U. S. 501 618 xvi TABLE OF CASES CITED. PAGE Paul v. Virginia, 8 Wall. 168 652, 653, 654, 660 Pearce, Ex parte, 32 Tex. Crim. App. 301 312 Pennoyer v. Neff, 95 U. S. 714 38 Pennsylvania Kailroad v. Loco- motive Truck Co., 110 U. S. 490 607 People v. Arenburg, 105 N. Y. 123 475 People v. Daniels, 6 Utah, 288 506,511 People v. Fonda, 62 Mich. 401 96 People v. Marx, 99 N. Y. 377 475 Pervear v. Commonwealth, 5 Wall. 475 466 Phelps v. Oaks, 117 U. S. 236 615 Philadelphia & Southern Steam- ship Co. v. Pennsylvania, 122 U. S. 326 652, 653 Philadelphia Fire Ins. Co. v. New York, 119 U. S. 110 653, 654 Phillipi v. Phillipe, 115 U. S. 151 460 Phoenix Life Ins. Co. v. Kaddin, 120 U. S. 183 123 Pickard v. Pullman Southern Car Co., 117 U. S. 34 653 Pierce v. State, 63 Md. 596 476 Pittsburgh &c. Railway Co. v. Keokuk & Hamilton Bridge Co., 131 U. S. 371 161 Planters’ &c. Bank v. Walker, 7 Ala. 926 329 Pointer v. United States, 151 U. S. 396 437 Powder Co. v. Powder Works, 98 U. S. 126 625 Powell v. Commonwealth, 114 Penn. St. 265 478 Powell Pennsylvania, 127 U. S. 678 467, 662 Pratt v. Carroll, 8 Cranch, 471 553 Presser v. Illinois, 116 U. S. 252 657 Prewit v. Wilson, 103 U. S. 22 638 Provident Institution v. Massa- chusetts, 6 Wall. 611 652 Pulliam v. Newberry, 41 Ala. 168 639 Pullman’s Palace Car Co. v. Penn- sylvania, 141 U. S. 18 698 Rahrer’s Case, 140 U. S. 545 474 Railroad Co. v. Brown, 17 Wall. 445 350 Railroad Co. v. Husen, 95 U. S. 465 468, 478 Railroad Co. v. Manufacturing Co., 16 Wall. 318 339 Railroad Co. v. Penis ton, 18 Wall. 5 652 Railroad Co. v. Pratt, 22 Wall. 123 339 Ratterman v. West. Un. Tel. Co., 127 U. S. 411 698 Reeside v. Walker, 11 How. 272 308 Reggel, Ex parte, 114 U. S. 642 313 PAGE Reg. v. Howard, 1 Moody & Rob. 187 438 Reg. v. Roberts, 14 Cox Cr. Cas. 101 438 Reichart v. Felps, 6 Wall. 160 374 Relief, The, Olcott Adm. 104 262 Rex v. Vereist, 3 Camp. 432 438 Reynolds v. Crawfordsville Bank, 112 U. S. 405 75, 324, 325 Reynolds v. Iron Silver Mining Co., 116 U. S. 687 374 Rice, In re, 155 U. S. 396 531 Richards v. Mackall, 124 U. S. 183 461 Riddle v. Whitehill, 135 U. S. 621 460 Riker v. Alsop, 27 Fed. Rep. 251 456 Robbins v. Shelby County Taxing District, 120 U. S. 489 653 Robert v. Hodges, 16 N. J. Eq. (1 C. E. Green) 299 329 Roberts v. Ryer, 91 U. S. 150 607, 629 Robertson v. Cease, 97 U. S. 646 393 Robertson v. Perkins, 129 ü. S. 233 612 Robinson, Ex parte, 19 Wall. 505 5 Robinson v. Holt, 39 N. H. 557; 8. C. 75 Am. Dec. 233 639 Rowland, Ex parte, 104 U. S. 604 308 Royall, Ex parte, 117 U. S. 241 92, 95, 96 Royer v. Schultz Belting Co., 135 U. S. 319 567, 579 Rubber Co. v. Goodyear, 9 Wall. 788 584 St. Paul & Sioux City Railroad v. Winona & St. Peter Railroad, 112 U. S. 720 387 Sayre v. Fredericks, 1 C. E. Green, (16 N. J. Eq.) 205 689 Schulenberg v. Harriman, 21 Wall. 44 372 Schwed v. Smith, 106 U. S. 188 647 Secretary v. McGarrahan, 9 Wall. 298 308 Sessions v. Romadka, 145 U. S. 29 584 Sheafe v. Sheafe, 40 N. H. 616 329 Shepley v. Cowan, 91 U. S. 330 374 Sheppard v. Iverson, 12 Ala. 97 329 Sherlock v. Alling, 93 U. S- 99 473 Sherman v. Buick, 93 U. S. 209 374 Shields v. Barrow, 17 How. 130 70 Shirras v. Caig, 7 Cranch, 34 645 Shively v. Bowlby, 152 U. S. 1 86 Simmons v. United States, 142 U. S. 148 123, 274 Simmons Creek Coal Co. v. Doran, 142 U. S. 417 329 Sioux City & St. Paul Railroad v. Chicago, Milwaukee &c. Railway, 117 U. S. 406 387 TABLE OF CASES CITED. xvii PAGE Slater v. Maxwell, 6 Wall. 268 38 Smelting Co. v. Kemp, 104 U. S. 636 374 Smith v. Alabama, 124 U. S. 465 472 Smith v. Craft, 123 ü. S. 436 639 Smith v. Goodyear Dental Vul- canite Co., 93 U. S. 486 609 Smith v. Byon, 133 U. S. 315 68, 72 Smith v. Nichols, 21 Wall. 112 54 Smith v. Whitney, 116 U. S. 167 403 Society for Savings v. Coite, 6 Wall. 594 652 South Carolina v. Seymour, 153 U. S. 353 509 Southern White Lead Co. v. Haas, 73 Iowa, 399 640, 641 Speidel v. Henrici, 120 U. S. 377 460 Stafford v. Watson, 41 Ark. 1 416 Stairs v. Peaslee, 18 How. 521 248 Stanley v. Holliday, 30 N. E. Rep. 634 323 Stanley v. Schwalby, 147 ü. S. 508 544 Stanton v. Embrey, 93 U. S. 548 613 Stanton v. Shipley, 27 Fed. Rep. 498 517 State v. Addington, 77 Mo. 110 477 State v. Davis, 2 No. Dak. 461 101 State v. Marshall, 64 N. H. 549 477 State, ex rel. Cohen ®. Hawes, 112 Ind. 323 517,519,521 State ex rel. Cunningham v. Helms, 35 N. E. Rep. 893 520, 522 State Railroad Tax Cases, 92 U. S. 575 652 State Tax on Railway Gross Receipts, 15 Wall. 284 652 Steel v. Smelting Co., 106 U. S. 447 374 Steiner v. Heald, 6 Exch. 607 607 Stephen Morgan, The, 94 U. S. 599 186, 221 Stewart v. Dunham, 115 U. S. 61 639, 647 Stewart v. Mills County Bank, 76 Iowa, 571 638 Stimpson v. Woodman, 10 Wall. « 117 54 Stoddard v. Chambers, 2 How. 284 373 Stone v. Anderson, 6 Foster (26 N. H.), 506 329 Stone v. South Carolina, 117 U. S. 433 487 Stoughtenburgh v. Hennick, 129 U. S. 141 653 Street v. Benner, 20 Fla. 700 75 Sweeny v. Easter, 1 Wall. 166 562 Sweet v. Wright, 57 Iowa, 510 639 Talbert v. United States, 25 C. Cl. 141 461 PAGE Tappan v. Evans, 11 N. H. 311 329 Taylor v. Carryl, 20 How. 583 95 Taylor v. Wendling, 66 Iowa, 562 645 Telegraph Co. v. Texas, 105 U. S. 460 653 Tennessee v. Bank of Commerce, 152 U. S. 454 107, 487, 488 Terhune v. Phillips, 99 U. S. 592 608 Thompson v. Howard, 31 Mich. 309 41 Thompson v. State, 25 Ala. 41 313 Tilghman v. Proctor, 125 U. S. 136 267, 582 Timmons v. Elyton Land Co. 139 U. S. 378 394 Traip v. Gould, 15 Me. (3 Shep-ley) 82 329 Tucker v. Spalding, 13 Wall. 453 578, 607 Twin Lick Oil Co. v. Marbury, 91 U. S. 587 461 Twyne’s Case, 3 Coke, 80 638 Underwood v. Dugan, 139 U. S. 380 333 United States v. Anderson, 9 Wall. 56 421 United States v. Black, 128 U. S. 40 308 United States v. Boyd, 5 How. 29 612 United States v. Carll, 105 U. S. 611 444 United States v. Commissioner, 5 Wall. 563 . 308 United States v. Coombs, 12 Pet. 72 657 United States v. Dewitt, 9 Wall. 41 466 United States v. Eaton, 144 U. S. 677 6, 481 United States v. Great Falls Mfg. Co., 112 U. S. 645 171, 173, 175, 177, 178 United States v. Guthrie, 17 How. 284 308 United States v. Hill, 123 U. S. 681 112 United States v. Hopewell, 5 U. S. App. 137 in United States v. Ingraham, 49 Fed. Rep. 155 436 United States v. Jahn, 155,U. S. 109 531 United States v. Jones, 134 U. S. 483 595 United States v. Klein, 13 Wall. 128 424, 427 United States v. Klingenberg, 153 U. S. 93 117 United States v. Landram, 118 U. S. 81 75 United States v. Lee, 106 U. S. 196 544, 545 xviii TABLE OE CASES CITED. PAGE United States v. McDermott, 140 U. S. 151 595 United States v. McKee, 91 U. S. 442 192 United States v. Northern Pacific Railroad, 152 U. S. 284 372 United States v. Padelford, 9 Wall. 531 422 United States v. Palmer, 128 U. S. 262 169, 175 United States v. Perez, 9 Wheat. 579 274 United States v. Peters, 5 Cranch, 115 544 United States v. Rogers, 4 How. 567 548 United States v. Russell, 13 Wall. 623 170 United States v. Schurz, 102 U. S. 378 308 United States v. Seaman, 17 How. 225 308 United States v. Southern Pacific Railroad, 146 U. S. 570 372 United States v. Van Duzee, 140 U. S. 169 593, 596 United States v. Wilson, 118 U. S. 86 325 Vance v. Campbell, 1 Black, 427 52, 617 Van Patten v. Thompson, 34 N. W. Rep. 763 638, 645 Vicksburg Bank v. .Worrell, 67 Miss. 47 697 Voight v. Wright, 141 U. S. 62 470 Voorhees v. Bank of the United States, 10 Pet. 449 431 Voorhees v. Noye Mfg Co., 151 U. S. 135 138 Walling v. Michigan, 116 U. S. 446 470 Ware v. United States, 4 Wall. 617 501 Waterbury v. Newton, 21 Vroom, (50 N. J. Law,) 534 476 PAGE Water-Meter Co. v. Desper, 101 U. S, 332 52 Webber v. Virginia, 103 U. S. 344 618 Weideman v. State, 56 N. W. Rep. 688 478 Wenona, The, 19 Wall. 41 264 West Brooklyn, The, 45 Fed. Rep. 60; 8. C. 49 Fed. Rep. 688 262 Western Electric Co. v. La Rue, 139 U. S. 601 607 Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530 698, 699 Westmoreland Nat. Gas Co.’s Appeal, 25 Weekly Notes of Cases, 103 670, 671 Wheeler v. Jackson, 137 U. S. 245 615 Wheelwright v. St. Louis, New Orleans &c. Transportation Co., 50 Fed. Rep. 709 73 White v. National Bank, 102 U. S. 658 562 Whitehead v. Shattuck, 138 U. S. 146 325 Wickham v. Miller, 12 Johns. 320 639 Wiggins Ferry Co. v. Ohio & Mississippi Railway, 142 U. S. 396 84 Wilcox v. Jackson, 13 Pet. 498 373 Willard v. Tayloe, 8 Wall. 557 553 Wilson v. Oswego Township, 151 U. S. 56 285 Wiscart v. D’Auchy, 3 Dall. 321 83, 636 Wisconsin v. Pelican Ins. Co., 127 U. S. 265 487 Wood, In re, 140 U. S. 278 96, 101 Wood v. Scott, 55 Iowa, 114 644 Wright v. Bales, 2 Black, 535 617 Wright v. Roseberry, 121 U. S. 488 374 Young v. Martin, 8 Wall. 354 618 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PACT 1789, Sept. 24,1 Stat. 73, c. 20, 68, 69 1790, Aug. 5, 1 Stat. 178, c. 38... 193 1793, Feb. 21, 1 Stat. 318, c. 11... 620 1793, Mar. 2, 1 Stat. 233, c. 22... 594 1796, May 18, 1 Stat. 464, c. 29.. 189 1800, April 17, 2 Stat. 37, c. 25.. 620 1800, May 10, 2 Stat. 73, c. 55... 189 1803, Mar. 3, 2 Stat. 244, c. 40... 83 1819, Feb. 19, 3 Stat. 481, c. 19.. 620 1820, April 24, 3 Stat. 566, c. 51, 189, 190, 191 1825, Mar. 3,4 Stat. 102, c. 64, 500, 501 1832, July 14, 4 Stat. 601, c. 240.. 190 1834, June 30, 4 Stat. 729, c. 161, 548 1839, Feb. 28, 5 Stat. 321, c. 36.. 69 1850, Sept. 9, 9 Stat. 453, c. 51... 505 1855, Feb. 24,10 Stat. 612, c. 122, 166, 168 1856, June 3, 11 Stat. 21, c. 44, 371, 372, 375, 387 1861, Mar. 2, 12 Stat. 220, c. 84.. 500 1862, July 5, 12 Stat. 512, c. 135.. 194 1862, July 17, 12 Stat. 589, c. 195, 428 1863, Mar. 3, 12 Stat. 765, c. 92, 167,419,426, 430 1863, Mar. 3, 12 Stat. 820, c. 120, 420, 421, 424, 425, 426, 430, 432,433 1867, Mar. 2, 14 Stat. 422, c. 145, 421 1868, June 25, 15 Stat. 75, c. 71... 420 1870, May 31, 16 Stat. 140, c. 114, 681 1870, July 8, 16 Stat. 198, c. 230, .... - 582,613,614 1870, July 12,16 Stat. 230, c. 251, -0_0 ,, 422,503 1872, May 29, 17 Stat. 165, c. 233, 214 wl!’ '4Une 17 Stat- 196’ c- 255, 70 1»72, June 5, 17 Stat. 228, c. 310, 216 J®7*» June 23, 18 Stat. 204, c. 455, 176 1875, Mar. 3, 18 Stat. 470, c. 137, 71, 72, 73, 74, 411, 486, 517 B PAGE ) 1878, June 8, 20 Stat. 101, c. 168, 56 J 1882, July 12, 22 Stat. 162, c. 290, 446 ) 1883, Mar. 3, 22 Stat. 485, c. 116, I 429,433 ) 1883, Mar. 3, 22 Stat. 488, c. 121, ) 128, 132, 248, 252 ) 1883, Mar. 3, 22 Stat. 804, c. Ill, 5 ‘ 429, 431, 432, 433 ) 1884, June 26, 23 Stat. 53, c. 121, 390, 391, 392 . 1884, July 7, 23 Stat. 236, c. 334.. 194 . 1885, Mar. 3, 23 Stat. 437, c. 353, > 93, 687 I 1885, Mar. 3, 23 Stat. 443, c. 355, ' 508,509 i 1886, June 19, 24 Stat. 79, c. 421, 390 391 392 i 1886, June 30, 24 Stat. 822, c. 591,’ 46 1886, Aug. 2, 24 Stat. 209, c. 840, 464, 465, 466, 481 1887, Mar. 3, 24 Stat. 505, c. 359, 167, 168, 179, 495, 500 1887, Mar. 3, 24 Stat. 552, c. 373, 107, 486, 517 1888, Aug. 13, 25 Stat. 433, c. 866, 67, 68, 69, 72, 73, 107, 411, 486 1889, Feb. 22, 25 Stat. 676, c. 180, 138 1889, Mar. 1, 25 Stat. 757, c. 317, 214 1889, Mar. 1, 25 Stat. 783, c. 333, 547 1889, Mar. 2, 25 Stat. 980, c. 412 , 214 1889, Mar. 2, 25 Stat. 1008, c. 414, 372, 377, 385, 387, 388 1890, May 2, 26 Stat. 81, c. 182... 547 1890, Aug. 8, 26 Stat. 313, c. 728, 474 1890, Oct. 1, 26 Stat. 636, c. 1249, 195 219 1891, Mar. 3, 26 Stat. 826, c. 517,’ 111, 114, 117 1891, Mar. 3, 26 Stat. 854, c. 539, 76, 84 1892, July 6, 27 Stat. 86, c. 151... 195 six XX TABLE OF STATUTES CITED. PAGE Revised Statutes § 116....................... 97 § 563....................... 91 § 627...................... 594 § 629...................91, 517 § 649.................... 636 § 698....................... 83 § 709...................687, 688 § 711.....................91, 99 § 721........... 614, 615, 617 § 723..............323, 325, 328 §§ 727-728.................. 595 § 737.....................69, 411 § 738..............70, 71, 73, 411 § 739...................69, 71 §§ 740-743...............71, 72 §§ 751-755................... 93 § 761....................... 93 § 764....................... 93 § 905...................... 226 § 914.................. 615, 617 §§ 915-916.................. 618 § 945...................... 595 § 991...................... 618 § 1014..................... 594 § 1024..................... 437 § 1042.........•........... 595 §§ 1090-1091................ 192 § 1778..................... 595 § 1889....................56, 58 §§ 1982-1985................ 595 § 2011..................... 681 § 2012..................... 682 §§ 2016-2018................ 682 § 2021..................... 682 § 2025..................... 682 PAGE § 2026.................680, 684 § 2031.............680, 681, 684 § 2096.................. 192 § 2108.................... 194 § 2146.................547, 548 § 2900.................. 236 § 2901.................... 239 § 2902.................... 248 § 2907.................... 252 § 2930.................130, 238 § 2939........127, 128, 130, 239 § 2949................... 237 § 3011.................... 130 §§ 3232-3241............... 466 § 3243.................... 466 § 3462.................... 595 § 3659.................... 192 § 3679.................... 503 § 3732.................... 500 § 4546.................... 595 § 4900.................583, 585 § 4919.................... 169 § 5003.................... 595 § 5076.................... 595 § 5208................ 445, 447 § 5209................. 92, 99 § 5263.................... 699 §§ 5270-5271............... 595 § 5280.................... 595 § 5328.................... 92 § 5392..................... 97 § 5438................ 436, 437 § 5596.................... 614 § 5599.................... 614 Suppl. Rev. Stat. 2d. ed. c. 840, p. 505....................... 465 (B.) Statutes of the States and Territories. Arizona. Laws of Arizona, 1883, Feb. 21, p. 61, No. 35.....55, 56, 58 Arkansas. 1881, Mar. 12, Stats, of.1881, p. 89, No. 39............. 411 1891, Mar. 26, Stats, of 1891, p. 132, No. 74............ 415 California. Political Code, § 623....... 660 Penal Code, § 649 .......... 659 Indiana. 1883, Mar. 5, Stats. 1883, p. 114, c. 95.........517, 521, 522 Rev. Stat. §§ 6006-6007 518, 519, 521 Iowa. Code, § 2831............. 331 § 2835............. 331 § 3273.............. 322 Kentucky. 1888, Gen. Stats. Ky., p. 546, c.37........................ 227 Massachusetts. 1884, June 2, Mass. Stats. 1884, c. 310, p. 324...... 481 1886, June 23, Mass. Stats. 1886, c. 317, p. 287...... 481 1891, Mar. 10, Mass. Stats. 1891, c. 58, p. 695....... 462 1891, June 11, Mass. Stats. 1891, c. 412, p. 1016..... 481 Public Statutes, c. 56...... 481 Mississippi. Code, 1880, § 585........... 698 §§ 587-589....... 698 § 594............ 698 New York. Code of Civil Procedure, Voorhees’ 5th ed. § 91, p. 69, 460 TABLE OF STATUTES CITED. xxi PAGE New York (coni.). Penal Code, § 511.......... 91 § 515.......... 91 §§ 524-525..... 91 Ohio. Revised Statutes, § 6343...... 226 PAGE bode Island. Pub. Stats. R. I., c. 23, § 9.. 438 tab. 1868, Feb. 13, Laws 1868, p. 8, c. 9.................... 509 1 Comp. Laws Utah, 1888,427 506, 509 < I. OCTOBER TERM, 1893. SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1893. INTERSTATE COMMERCE COMMISSION v. BRIMSON. AV APPEAL FROM THE CIRCUIT ^XURT OFZR^E UNITED STATES FOR THE NOR'n0?N DIS'J^C’f’oF ILLINOIS. No. 883, Argued April 16, 1894. — Warded May 26,„1894. —Dissenting Opinion, filed October 26.J£&. This case is reported an^ resulted in a verdict for the plaintiff o $1120, upon which judgment was entered with costs. From a judgment Glaspell prosecuted a writ of error on the 16th ay ° June, 1891, from this court upon the question of juris-th° Tf his writ of error was pending, July 30, 1891, e efendant, upon alleging errors occurring upon the trial 116 OCTOBER TERM, 1894. Opinion of the Court. on the merits, sued out a writ of error from the Circuit Court of Appeals for the Eighth Circuit and G-laspell filed in that court a motion to dismiss the writ of error on the ground that the court was without jurisdiction for the reason that the action was pending on the writ of error from this court, which was duly issued and served before the writ from the Circuit Court of Appeals was allowed. But the motion to dismiss was overruled, and the cause continued awaiting our decision upon the question of jurisdiction. Northern Pacific Railroad v. Glaspell, 4 U. S. App. 238. This court subsequently.held that the Circuit Court for the District of North Dakota had no jurisdiction, and reversed the judgment, and remanded the case with directions to remand it to the state court. Glaspell v. Northern Pacific Railroad, 144 U. S. 211. In Garey v. Houston db Texas Railway, 150 U. S. 170, it appeared that two appeals had been prayed from the decree by the losing party, one to this court and one to the Circuit Court of Appeals for the Fifth Circuit, which appeals had been severally allowed and duly perfected, but, as we held, for reasons therein given, that we had no jurisdiction, the circumstance became unimportant. In Northern Pacific Railroad v. Amato, 144 U. S. 465, a suit was brought in the Supreme Court of New York against a railroad corporation created by an act of Congress, to recover damages for personal injuries sustained by the plaintiff from the negligence of the defendant, and was removed by the defendant into the Circuit Court of the United States, where a trial was had, which resulted in a verdict and judgment for the plaintiff. The defendant took a writ of error from the Circuit Court of Appeals for the Second Circuit, which affirmed the judgment. On a writ of error taken by the defendant from this court to the Circuit Court of Appeals, a motion was made by the plaintiff to dismiss or affirm; and it was ruled, among other things, that as it did not appear by the record that on the trial in the Circuit Court the defendant made any objection to the jurisdiction of that court, and the petition for removal recognized the jurisdiction, the plaintiff could not be ALLIS v. UNITED STATES. 117 Syllabus. heard to assert, as a ground for the motion to dismiss, that the defendant might have taken a writ of error from this court to the Circuit Court under section five of the said act of 1891, and had, by failing to do so, waived this right. We are of opinion that the Circuit Court of Appeals was in the proper exercise of jurisdiction in certifying the question which it did, and that our jurisdiction to answer it is properly invoked. The decision in United States v. Klingenberg, 153 U. S. 93, covers the case and requires The question certified to he answered in the affirmative, and it is so ordered. ALLIS v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 661. Argued October 23, 1894. — Decided November 12, 1894. When the record in a criminal case brought here by the defendant is meagre, containing only a small portion of the evidence, this court must assume, as the verdict was sustained by the court below, that the testimony was sufficient to establish defendant’s guilt. When a defendant is tried on an indictment charging false entries at different times running through several mouths, it is no error to admit evidence of such acts during the whole period, although he may be found guilty of only one such act. Evidence having been given bearing upon one such alleged false entry, made at a period considerably later than the only one of which the defendant was found guilty, no advantage can be taken by the defendant here of the refusal of the court below to allow a cross question touching such evidence. t is common practice and no error to recall a jury, after they have been in deliberation for a length of time, for the purpose of ascertaining what difficulties they have in the consideration of the case, and of making proper efforts to assist them in their solution, and the time at which such recall shall be made must be left to the discretion of the trial court, ere is nothing in the record to show that the court in this case abused this discretion. Rulings not specifically excepted to below are not reviewable here. 118 OCTOBER TERM, 1894. Opinion of the Court. The rule repeated that in a Federal court the presiding judge may express to the jury his opinion as to the weight of evidence. In making such a statement he is under no obligation to recapitulate all the items of the evidence, nor even all bearing on a single question. On May 13, 1893, the grand jury of the United States for the Western Division of the Eastern District of Arkansas presented an indictment against Horace G. Allis under section 5209 of the Revised Statutes. This section, so far as is material to this case, reads as follows: “Every president . . . of any association . . . who makes any false entry in any book ... of the association . . . with intent ... to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association . . . shall be deemed guilty,” etc. The indictment consisted of twenty-five counts. The defendant pleaded not guilty, and the case came on for trial on November 27, 1893. This trial resulted in a verdict of guilty on the fourteenth count, upon which verdict the defendant was sentenced to imprisonment for the term of five years. The particular charge in that count was the making of an entry in February, 1892, on the books of First National Bank of Little Rock, of which defendant was the president, of the sum of fifty thousand (50,000) dollars to the credit of his individual account. To reverse the judgment and sentence against him, the defendant sued out a writ of error from this court. J/r. John R. Dos Passos and Mr. A. H. Garland, (with whom was Mr. Thomas B. Martin on the brief,) for plaintiff in error. Mr. Assistant Attorney General Conrad for defendants in error. Mb. Justice Bbeweb, after stating the case, delivered the opinion of the court. The meagre record gives us little information as to the merits of this case, and presents but few questions for our con- ALLIS v. UNITED STATES. 119 Opinion of the Court. sideration. As the verdict was sustained by the trial judge, we must assume that the testimony, only a small portion of which is before us, was sufficient to establish the guilt of the defendant, and unless error is disclosed in the special matters presented to our consideration the judgment must be Affirmed. Upon the trial the court, over the objections of the defendant, permitted a witness, from an examination of the books of the bank, to testify to the condition of the defendant’s private account from February to December 1892. It is insisted that this testimony was calculated to prejudice the jury against the defendant; that the items of the entire account were not in issue; that they were not within the scope of the indictment ; and that, therefore, the defendant’s attention had not been called to them and he could not be prepared to defend against them. There are two sufficient answers to these objections: 1st. While the defendant was found guilty only on one, he was being tried on twenty-live counts, which counts charged false entries at different times running from February to December, and therefore testimony was competent as to the condition of his account stretching through the entire time. 2d. The gravamen of this offence is the false entry with intent to injure, defraud, or deceive, and it was competent to show the state of the defendant’s account, not merely at the very day the false entry was made, but also before and after that date, for the purpose of throwing light on the intent with which it was made. Again, a bookkeeper having testified to the making of false entries under the direction of the defendant, was asked on cross-examination whether a report prepared by him in September, in the absence of the defendant from the State, did not contain the identical false entry subsequently found in the December report, the making of which last entry was the offence charged in one of the counts of the indictment. The court refused to permit an answer to this question. As the jury did not find the defendant guilty on that count, and as question related to matters occurring more than six months after the false entry of which he was found guilty, am to an entirely different transaction, it is obvious that the e endant was not prejudiced by the ruling. 120 OCTOBER TERM, 1894. Opinion of the Court. It is further insisted that the court erred in permitting the translation of a cipher telegram from the defendant to be received in evidence and read to the jury. It is sufficient to say, in respect to this matter, that no exceptions were taken to the rulings of the court, and, indeed, no objections were made to the admission of the testimony after all the preliminary proofs had been received. The other errors complained of are in the charge to the jury. It appears from the bill of exceptions that after the jury had been deliberating for several hours on the case, the court called them into the court-room and inquired if they had reached a verdict. On being informed that they had not, the court asked if there was any portion of the charge the rereading of which would be of any assistance to them. To which question the foreman responded that a portion thereof was not fully understood by all of the jury, to wit, that in reference to the weight of the testimony of the witnesses. Thereupon the court reread that portion. It further stated that the jury were at liberty to conduct their deliberations as they chose, but that he would call their attention again to the part of the charge relating to the fourteenth, fifteenth, eighth and ninth counts of the indictment, and proceeded to reread that part. In the portion reread, after a reference to the alleged false credit of $50,000, was this language : “ And if he caused these entries to be made, with what intent did he do so ? If a customer or friend of yours who owed you $40,000 on account should come to you and tell you that he had deposited $50,000 to your credit in the German National Bank of Little Rock, and that he wanted a receipt for the $40,000 that he owed you and wanted a credit for the other $10,000, and you should give him the receipt and the credit, and should subsequently learn that he had never deposited one dollar in that bank for you, with what intent would you conclude he had made these statements? Would you think it was with an honest purpose or with some intent to injure or defraud you ? ” The bill of exceptions also contains other parts of the charge as follows: “ You are not bound to be governed by any state- ALLIS v. UNITED STATES. 121 Opinion of the Court. ment of the evidence made by the court, but if your recollection accords with that of the court you may accept it, and if it differs from it you may be governed by your own memory. It is your exclusive province and duty to determine the issues of fact here presented and the weight and credibility of the testimony of the witnesses, and by your determination of these questions the court will be bound. If in the course of what the court may say to you any expression of opinion should drop as to the disputed issues of fact or the credibility of the testimony of the witnesses, you are not bound by any such expression, but it is your privilege to adopt or disregard it as you may see fit.” “ The court has reviewed the counts of this indictment and called your attention to some of the important evidence in the hope that this might be of some assistance to you in reaching a just verdict. There is much testimony bearing upon many of these counts that has not been called to your attention. You will consider that as carefully and as well as that which has been referred to, and will remember that whatever may have been said by the court, you are the exclusive judges of the questions of fact and of the credibility of the witnesses.” Closing its remarks to the jury at the time of their recall, it said: “ Of course, gentlemen of the jury, you must consider all the other parts of the charge heretofore read to you also. I have simply called your attention to these four counts, thinking possibly I might assist you in arriving at a just conclusion. ‘ The court and jury are here to come to a just and righteous result. No doubt you are as anxious to reach it as am I. ‘ So anxious is the court that, having spent now two weeks ln ^ial of this cause, I am willing to stay here another if ty that means we may be able to reach a just and proper result in this trial. You may retire.” To the charge, of which the only portions preserved in the record are those just referred to, a single exception was taken in the following words: “ The defendant excepts to the action 0 the court in recalling the jury and in arguing the testimony 122 OCTOBER TERM, 1894. Opinion of the Court. and in stating part of the testimony on certain points without stating the entire testimony.” It is now insisted that the court expressed an opinion as to the inference to be drawn from the facts, argued the question of intent to the jury and sought to coerce a verdict. But the exception taken is not sufficient to bring all these matters before us. There is no intimation in the exception that the defendant at the time thought that the court was trying to coerce the jury, or suggested that its language might have such an influence upon them. Evidently the claim of coercion is an afterthought from subsequent study of the record. But it is settled that no such afterthought justifies a reviewing court in reversing the judgment. A party must make every reasonable effort to secure from the trial court correct rulings or such at least as are satisfactory to him before he will be permitted to ask any review by the appellate tribunal ; and to that end he must be distinct and specific in his objections and exceptions. Rule 4 of this court provides : “ The party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts ; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court.” Repeated decisions have emphasized the necessity of a strict adherence to this rule : “ However it might pain us to see injustice perpetuated by a judgment which we are precluded from reviewing by the absence of proper exceptions to the action of the court below, justice itself and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception.” Harvey v. Tyler, 2 Wall. 328, 339. “ If it was intended to save an exception as to distinct propositions embodied in the instructions, the attention of the court should have been directed to the specific points concerning which it was supposed error had been committed. Moulor v. Am. Life Ins. Co., Ill IT. S. 335, 337. “An exception ‘ to all and each part ’ of the charge gave no information whatever as to what was in the mind of the excepting party» ALLIS v. UNITED STATES. 123 Opinion of the Court. and, therefore, gave no opportunity to the trial court to correct any error committed by it.” Block, v. Darling, 140 U. S. 234, 238. See also Phoenix Life Ins. Co. v. Raddin, 120 U. S. 1.83, and cases cited in the opinion; N. Y. de Colorado Mining Co. v. Frazer, 130 U. S. 611; Anthony v. Louisrille & Nashville Railroad, 132 U. S. 172. We see nothing in this case to withdraw it from the scope and control of this rule. The specific matters excepted to are: 1st, the action of the court in recalling the jury; 2d, its arguing the testimony; and 3d, its stating part of the testimony on certain points without stating the entire testimony. It is a familiar practice to recall a jury after they have been in deliberation for any length of time for the purpose of ascertaining what difficulties they have in the consideration of the case, and of making proper efforts to assist them in the solution of those difficulties. It would be startling to have such action held to be error, and error sufficient to reverse a judgment. The time at which such a recall shall be made, if at all, must be left to the sound discretion of the trial court, and there is nothing in the record to show that the court, in the case at the bar, abused this discretion or failed to wait a reasonable time for the consideration of the case by the jury under the charge as already given. So far as “ arguing the testimony ” is concerned, the onlv part of the charge that can be considered as even tending in that direction was that part referring to the question of intent. We see nothing in this of which any just complaint can be made. The illustration given by the court was apt and fair, and if it bore hardly upon the defendant it was only because the transaction, of which he was charged, was one of like character and indicative of the same intent. The illustration was put in the form of a question, and no affirmation was made as to the intent that must be presumed therefrom. ven if it contained an expression of opinion, such expression is permissible in the Federal courts. Simmons v. nited States, 142 U. S. 148; Doyle v. Railway Co., 147 U. S. 124 OCTOBER TERM, 1894. Syllabus. So far as respects the complaint that the court stated part of the testimony on a certain point without stating all, we know of no rule that compels a court to recapitulate all the items of the evidence, nor even all bearing upon a single question. There was no intimation that all the testimony bearing upon any particular point was stated. On the contrary, the plain declaration was that there was other testimony than that mentioned, and the jury were admonished to give that not mentioned as full and careful consideration as that mentioned. So far as the record discloses, the charge of the court and its rulings on the trial were eminently fair and considerate of the rights of the defendant. In none of the matters referred to do we find any error, and therefore, the judgment is Affirmed. ERHARDT v. SCHROEDER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 31. Argued January 24, 25, 1894. — Decided November 12, 1894. It is a general rule that provisions in statutes imposing taxation, though not in terms mandatory, are to be regarded as such if necessary for the substantial protection of the taxpayer. The customs laws, however, give to the complaining importer an ample remedy, only putting him to the inconvenience of seeking it in a legal tribunal. In an action to recover duties alleged to have been illegally exacted, the burden is on the importer to overcome the presumption of a legal collection by proof that their exaction was unlawful. Although the appraisement of goods by customs officers is not ordinarily open to judicial review, that rule does not apply when the value is determined by a classification made by the officer. The provision in Schedule F, of the act of March 3, 1883, c. 121, 22 Stat. 488, 503, imposing a duty upon leaf tobacco, evidently requires that 85 per cent of half leaves are to be of the requisite size and necessary fineness of texture for wrappers, or, in other words, that each of 85 half ERHARDT v. SCHROEDER. 125 Opinion of the Court. leaves out of 100 half leaves must contain a portion sufficiently fine in texture, of the requisite size to make at least one wrapper. The further provision in that schedule, “ of which more than 100 leaves are required to weigh a pound,” refers to whole leaves, in their natural state. The case is stated in the opinion. Mr. Assistant Attorney General Whitney for plaintiff in error. Mr. Edwin, B. Smith, (with whom was JWr. William B. Hill on the brief,) for defendants in error. Me. Justice Shiras delivered the opinion of the court. The defendants in error commenced this action in the Superior Court of the city of New York on May 6, 1889, against Joel B. Erhardt, collector of the port of New York, to recover the sum of $32,040.60, which amount they alleged had been unlawfully exacted from them by that officer as customs duties on leaf tobacco. The case was removed by certiorari into the Circuit Court of the United States for the Southern District of New York, in which court the complaint was filed, and the case proceeded to trial before the court and a jury. As appears by the bill of exceptions, the defendants in error, partners as Schroeder & Bon, on November 5, 1888, imported from Amsterdam and entered at the port of New York, for warehouse, 429 bales of leaf tobacco, described in the invoice as Sumatra tobacco. The protest filed in this case related to 398 of those bales, but on the trial a recovery was abandoned of duties paid on such bales of the invoice as were withdrawn before May 6, 1889, for the reason that those duties had been paid to the predecessor in office of the defendant. On that day, as the bill of exceptions further shows, the importers withdrew from warehouse five bales of the tobacco, upon one of which they paid duty at the rate of 75 cents a pound on 125 pounds of the tobacco in the bale, and 35 cents a pound upon 54 pounds thereof, and upon four of which bales ey paid a duty of 75 cents a pound. On the following day 126 OCTOBER TERM, 1894. Opinion of the Court. they withdrew five more bales, upon all of which they paid duty at the rate of 75 cents a pound. The importers, contending that they should have been compelled to pay but 35 cents a pound on all of the ten bales, asserted that the amount constituting the difference between duties at that rate and at the rate of 75 cents a pound had been exacted from them unlawfully by Erhardt, and that amount, with interest, or $708.12, was sought on the trial to be recovered. The evidence introduced by the importers showed that within ten days after the liquidation of their warehouse entry they had filed with the collector a protest against his decision, assessment, and liquidation of the duties; that within thirty days from the liquidation of the entry they had duly appealed to the Secretary of the Treasury, and that that officer having decided against them on appeal, they had within ninety days after his decision brought suit to recover the duties alleged to have been erroneously exacted. It appeared from the invoice and the testimony of the examiner of tobacco at the appraisers’ stores, called as a witness for the importers, that upon the entry of the tobacco the collector had designated five of the 429 bales for examination at the public stores; that subsequently, upon the request of the appraiser, twenty-five additional bales and no more had been sent to the public stores for examination; that of the plantation lots, about thirteen in number, of which the invoice was composed, four plantation lots, containing respectively ten, twenty-seven, twenty, and ten bales, were represented in the ten bales in controversy; two of these four lots being represented by four bales from each, and two of the four lots by one bale from each ; that among the thirty bales sent to the public stores was one bale from each of the said four plantation lots; that one of the bales there examined was, and that the other three were not, among the ten bales in controversy; and that this one bale belonged to one of the plantation lots containing ten bales, and was the bale upon which the importer paid duty at the rate of 75 cents a pound upon 125 pounds thereof and 35 cents a pound upon 54 pounds thereof, ERHARDT v. SCHROEDER. 127 Opinion of the Court. Other testimony was introduced to show the actual character of the tobacco. On the trial, after all the testimony on both sides had been introduced, the collector moved the court to direct a verdict in his favor on the ground that the importers had not established facts sufficient to constitute a cause of action, which motion was denied. The collector excepted to this ruling, and asked to be allowed to go to the jury generally upon the issues of the case, and upon the court’s refusal of this request the collector asked that the case might go to the jury upon the question whether there had been one package examined of the bales in controversy, claiming that although there was not one bale in ten of the entire invoice sent to the public stores, yet, as there were only ten bales in question, representing four plantation lots, and as four bales representing those ten bales had been actually examined at the public stores, there was a sufficient compliance with the statute. The court refused to submit this question to the jury, to which refusal the collector excepted. The importers then moved for the direction of a verdict in their favor, and the court granted the motion and directed a verdict for them for the sum of $708.12, to which action of the court the collector excepted. Judgment m favor of the importers, for the said amount, was duly entered on June 20, 1890, and subsequently the collector brought the case to this court by a writ of error. The protest filed by the importers contained, among other things, an allegation that there had been no legal appraisal of the tobacco, for the reason that the provisions of section 2939 of the Revised Statutes had not been complied with. That section is as follows : The collector of the port of New York shall not, under any circumstances, direct to be sent for examination and appraisement less than one package of every invoice, and one package at least out of every ten packages of merchandise and a greater number should he, or the appraiser, or any assistant appraiser, deem it necessary. When the Secretary o the Treasury, however, from the character and description 0 ^le merchandise, may be of the opinion that the exam in a- 128 OCTOBER TERM, 1894. Opinion of the Court. tion of a less proportion of packages will amply protect the revenue, he may, by special regulation, direct a less number of packages to be examined.” It seems, from the nature of a part of the evidence introduced on the trial, that the importers contended in the court below that the effect of the examination by the customs officers of less than one bale in ten of the invoice had the effect of invalidating the assessment of the higher tax upon the tobacco, provided for in paragraph 246 of the tariff act of 1883, and made it dutiable at the lower rate, as prescribed in paragraph 247 of that act. The same ground of contention is presented in this court, the collector asserting that the provisions of Rev. Stat. § 2939 are in the nature of instructions to the officers of the customs, intended solely for the protection of the revenue, and, therefore, that no benefit from a violation of the statute could be taken by an importer. The importers insist, on the other hand, that inasmuch as the examination may have the effect of fixing a higher duty upon a given invoice of tobacco than that collectible upon leaf tobacco of the kind more extensively imported, the importer might be injured if the characteristics of the tobacco necessary to justify the exaction of the higher tax were determined by an examination different from that prescribed by § 2939, which enactment, therefore, they believe to be intended as well for the protection of the importer as the government, and hence mandatory. Collateral to the argument upon this point is the discussion by the parties as to whether the incident of the actual examination in this case of one of the ten bales in controversy, and the examination of one bale from each of four plantation lots represented by the ten bales, was equivalent to a substantial compliance with the statute. Whether a statute is mandatory or directory is frequently a question of a great deal of importance to taxpayers, for the reason that errors in taxation are often susceptible of correction only by pointing to the non-observance of some law which, strictly followed by an officer, might have prevented th© errors complained of. The acts of assessors, for instance, ERHARDT v. SCHROEDER. 129 Opinion of the Court. in matters relating to general municipal and state taxation are, if legally performed, usually conclusive upon the taxpayer, unless some means of relief has been provided by the legislature, and often this relief is narrow. Very rarely, if ever, is there power in the judiciary to enter into all the questions affecting the legality of a charge for taxes, and therefore, in general, a statute, even though not in express terms mandatory, is treated as being so if its literal observance might afford substantial protection to the party complaining, and a failure of such observance by an officer is considered to render his act void. French v. Edwards, 13 Wall. 506, 511. In the case of customs duties, however, a party dissatisfied with the classification of imports may apply to the courts to have examined and reviewed everything involving the legality of the demand which has been made upon him by a collector, and statutes containing directions to government officials, as to the manner in which they shall become informed of the dutiable character of merchandise, afford importers an altogether different kind of protection from that just mentioned. At most, a neglect of such provisions operates to no greater disadvantage to a party than to subject him to -the necessity of bringing an action which he might not have felt impelled to bring if the tax had been ascertained in the manner prescribed. The unlawful demand of the duty does not conclude his rights, but, at the most, merely lays upon him, the inconvenience of going before a tribunal in which those rights will be declared. An examination of one package in ten of the merchandise plight have shown to the satisfaction of the collector that the importation was of the character the importer claimed it to be; the examination of one package in fourteen may have given the collector a different impression to the disadvantage °f the importer. But the proceedings do not necessarily end with the collector’s decision, and the importer’s rights are not finally fixed until the character of the goods has been found by a court. The protection of the convenience only of a taxpayer is not °f such a vital nature as to authorize a court to treat a statute VOL. CLV—9 130 OCTOBER TERM, 1894. Opinion of the Court. primarily directed to public officers for their guidance, and the substantial protection of the government, as mandatory, and to consider official acts not in strict conformity with the statute as void. The protection must be substantial, and must be intended as a guard of rights or property. Cooley on Taxation, 215, 216. In this view, it is apparent that the usual presumption of a legal collection is not changed by the circumstances of this case, and that the burden is upon the importer of overcoming this presumption by proof that the exaction of the duties was unlawful. If the dutiable character of the goods in the present case were to be determined by value, the question of the effect of § 2939 might be of consequence to the importers, since in that event the value fixed by the appraisers, under section 2930 Rev. Stat., relating to appeals from appraisements, would be final, unless the appraisement were in some respect unlawful. The question of the value of the goods could not be raised in an action against the collector, and an attack upon the legality of the appraisement, for the purpose of having it declared illegal, and the goods therefore declared dutiable at the value stated in the invoice, would be the only means of redress by a court for an illegal exaction of duties based upon an erroneous valuation. The duty chargeable upon leaf tobacco was not fixed with reference to its value, but to certain prescribed characteristics of size, fineness of texture, and weifit-It seems to have been the practice, under instructions issued by the Secretary of the Treasury, for the appraiser, in addition to ascertaining the value of goods, to ascertain the dutiable qualities of tobacco imported, and this act of the appraiser seems usually to be denominated an appraisement. At least, that word is so used by counsel on both sides of this case. Unless, however, this act of the appraiser is an appraisem^l in the sense of being an ascertainment of value, it would not be just to an importer to regard it as an appraisement in this kind of a case. Section 3011 Rev. Stat, provided that any person who had made payment under protest, and in order to obtain possession ERHARDT v. SCHROEDER. 131 Opinion of the Court. of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, might maintain an action in the nature of an action at law, which should be triable by jury to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. This statute is general in its terms, and is subject to but one qualification, namely, that in the action provided for no question can be raised as to the value of the merchandise, except to show that because of some illegality in the appraisement the value fixed by the appraiser should not be taken as the basis of the duties, but that the duties should therefore be fixed by the invoice. In the case of Hilton v. Merritt^ 110 IT. S. 97, 106, Mr. Justice Woods said, in delivering the opinion of the court: “ Considering the acts of Congress as establishing a system, and giving force to all the sections, its plain and obvious meaning is that the appraisement of the customs officers shall be final, but all other questions relative to the rate and amount of duties may, after the importer has taken the prescribed steps, be reviewed in an action at law to recover duties unlawfully exacted. Questions frequently arise whether an enumerated article belongs to one section or another. ... In determining the rate and amount of duties the value of the merchandise is one factor, the question what schedule it properly falls under is another. . . . Questions relating to the classification of imports and consequently to the rate and amount of duty are open to review in an action at law.” A common instance of the recognition of the right of a party to review, in an action at law, a question of the classification of imports is to be found in cases where there is no dispute as to the character of the merchandise, but the contest ls uPon ^1G name properly applicable to it, in the meaning of a statute. Many such cases are cited in Cadwalader v. Ze\ IT. S. 171, 17g, which case is itself a similar instance. In S . controversies the question to be answered is what the article is. The question is the same where there is no dispute over terms, but as to the qualities or characteristics necessary 132 OCTOBER TERM, 1894. Opinion of the Court. to bring the article within the statutory description. In either case the matter to be decided is the-portion of the act under which the article properly falls, and in all cases, eliminating only the question of the value of the merchandise, the classification may be reviewed in an action at law. We are thus brought to the question of the actual character of the tobacco, with reference to the paragraph under which it was properly dutiable. This question is raised by the following allegation of the protest: “We protest against the estimate of quality of the different grades of said tobacco as made by the appraiser, and the assessment of 75 cents per pound as made by you as unlawful and as not in accordance with the provisions of Schedule F of the act of March 3,1883, c. 121, 22 Stat. 488, 503, claiming said tobacco to be dutiable under said provision at only 35 cents per pound because eighty-five per cent of said tobacco is not of the requisite size and of the necessary fineness to be suitable for wrappers, and less than one hundred leaves are required to weigh a pound.” The provisions of Schedule F of the tariff act of 1883, under which the duties in this case were exacted, were as follows: “ [246.] Leaf tobacco of which eighty-five per cent is of the requisite size and of the necessary fineness of texture to be suitable for wrappers, and of which more than one hundred leaves are required to weigh a pound, if not stemmed, seventy-five cents per pound; if stemmed, one dollar per pound. “ [247.] All other tobacco in leaf, unmanufactured and not stemmed, thirty-five cents per pound.” Diverse views were entertained by the parties concerning the meaning of paragraph [246], the most important of which had reference to the question whether the bale was to be treated as the unit to which the percentage test was to be applied, or whether the characteristics of the tobacco were to be ascertained by examining a number of representative hands, (which are small bundles of leaves fastened together,) and if certain of the examined hands should be found to be dutiable at one rate and the others at a different, the bale , should be assumed to contain tobacco of two different grades, and the duties laid accordingly. ERHARDT v. SCHROEDER. 133 Opinion of the Court. The proper answer to this question seems to depend upon the particular circumstances of a given case. It appears in the testimony on both sides of this case that leaf tobacco is divided into two classes, known as the wrapper class and the filler class. Whether or not a bale of tobacco is of uniform character seems to be easily ascertained. A dealer in leaf tobacco, one of the witnesses for the collector, said: “We never draw [from a bale] less than four hands, and it may run four hands, six hands, eight hands, or ten hands, according as we may find whether the bale has been packed honestly, as we term it, or whether it has been packed mixed. If the first four hands drawn should be entirely uniform, we probably would not draw any more, and in any event we would be hardly likely to draw more than ten hands.” If, then, a bale, or other separate and concrete quantity of leaf tobacco, contained only leaves of such uniformity of character as to be, in their collective form, of one class, the bale, or other separate collection, would be the unit contemplated in the percentage and weight tests of paragraph [246]. On the other hand, if the bale contained tobacco of two classes, the unit would be the ascertained quantity of either class. The leaf tobacco meant by paragraph [246] is, appar-ently, a collection of leaves, or half-leaves, having the similarity caused by the circumstances of their having grown in sod of the same general character, in the same climate, ancl under the same general conditions of moisture or dryness, and by such selection or assortment as it may be customary to inake on the plantation; yet having the differences which, espite the similarity of habitat and environment, are to be ound m all natural products. Congress is, of course, presumed o e familiar with the fact that leaf tobacco is divided into c asses, or is subjected, before being placed in bales, to some [ft of an assortment, and a knowledge of the similarities and erences which are to be found in a collection of leaves of a c ass doubtless furnished the reason for the adoption of the Percentage test. both 1 t°bacco in question in this case, as the evidence on sides shows, was raised in the same country, and was all 134 OCTOBEB TEEM, 1894. Opinion of the Court. of the class known to the trade as wrappers. Therefore, any bales, or, indeed, the whole invoice, if it might conveniently be treated as a whole for the purpose, was just such a unit as was intended by the statute. Any other view of this legislation would make it meaningless, for the very term, “ per cent,” implies an understanding that the tobacco to be taxed, even though of an uniform grade, may contain some leaves possessing and some not possessing the qualifications required for the higher tax. In such a case, if separate hands, taken from a bale containing only leaves of one class, were treated as units, the result might be an inaccurate conclusion. Doubtless in the hands classed as containing tobacco dutiable at the lower rate there would be leaves having all the requisites of the higher grade, while in the hands ascertained to be taxable at the higher rate would be leaves of the lower grade. This might have the effect of making a division of tobacco of one commercial class into two grades with respect to taxation—a division which we do not believe to have been contemplated by the statute. If the character of the tobacco is to be learned from an examination of a representative quantity therefrom, such as ten hands, the hands should be separated and the statutory tests applied to the • general collection of all the representative leaves, irrespective of their casual association in the separate hands. • Examining the evidence in this case, we find that one of the importers gave testimony, based upon an examination of samples from the bales in controversy, tending to show that two of the plantation lots which were represented by five of those bales contained tobacco of which 85 per cent neither of the surface of the leaves nor of the quantity thereof, as estimated by the weight of the bale, was of the requisite size for wrappers; that the other two lots, represented by the other five bales in controversy, contained tobacco of which 85 per cent of the surface, but not 85 per cent of the weight, was suitable for wrappers. He further testified that 85 per cent of the tobacco was suitable for wrappers in respect to fineness of texture. Considered with regard to fitness for wrappers each leaf of ERHARDT v. SCHROEDER. 135 Opinion of the Court. tobacco is divided, by what is called the stem, into two distinct portions. It is matter of common knowledge, that, in making wrappers, the stem is not used, but is removed, with the result of dividing the leaf into separate pieces. From these pieces only are wrappers made, and their size and fine-ness of texture determine their suitability for wrappers, for if one piece is of insufficient size it cannot be aided in usefulness as a wrapper by the portion on the other side of the stem. If tobacco is imported with the stems removed, each piece or side, as it appears to be called by dealers and manufacturers, would of necessity be treated as independent, for there would be no means of knowing with certainty what parts were originally together in one leaf. In applying the test of size, therefore, the size of either side of the leaf is to be looked to, and the evident requirement of the statute is that eighty-five per cent of half-leaves, or eighty-five out of a hundred, are to be of the requisite size and necessary fineness of texture for wrappers. In other words, each of eighty-five half-leaves out of a hundred half-leaves must contain a portion, sufficiently fine in texture, of the requisite size to make at least one wrapper. Eighty-five per cent of the surface of the single leaf is not intended, for in that view any single leaf large enough for a wrapper would be, in respect to size, one hundred per cent or entirely of the requisite size for wrapper purposes, or, if one wrapper could not be made from it, the leaf would have, as to size, no percentage of suitability. Hence any leaf would be required to be treated simply as fit or unfit, one hundred per cent suitable in size or not suitable at all, and no general percentage test would be applicable. The importers call attention to their testimony to the effect that in none of the four lots mentioned by them was there dghty-five per cent of the weight of the tobacco suitable for wrappers, and suggest that “ as the commodity was bought, so d, and dutied by the pound, the weight must be the test o which the percentage rule applies.” There is a practical o jection to this view, however, which renders it not accep-a e. It might often happen that a half-leaf which was suitable, according to the required test, would be joined, in 136 OCTOBER TERM, 1894. Opinion of the Court. an unstemmed leaf, to one which was unsuitable, in which case the weight of the respective parts could not be ascertained. The most natural interpretation of the paragraph in question is to consider eighty-five per cent of half-leaves, or suitable half-leaves eighty-five in number out of half-leaves one hundred in number as the requirement, and to regard the proportion of the weight of the suitable half-leaves to the weight of all the leaves as immaterial. A further requirement of the act is that the leaves of the collection must be of such average lightness that more than one hundred are required to weigh a pound; that is to say, if the collection should weigh 160 pounds it must contain more than 16,000 leaves; or if some smaller collection, taken as representative of the whole, such as ten hands, should weigh four pounds, this representative collection must contain more than 400 leaves. Here we are not to have in view, as in the other test, the separate parts of the leaves, for the language of the act expressly provides for the condition that “ 100 leaves are required to weigh a pound.” The word leaves plainly means leaves in their natural state, or whole leaves. Assuming that the importers, in testifying concerning the size and fineness of texture of tobacco, had in mind the proper test when speaking of the percentage of the surface suitable for wrappers, we must take their evidence to mean that only five of the ten bales in controversy contained tobacco of which less than eighty-five per cent fulfilled, as to the size and fineness of texture, the.demands of paragraph 246. It would seem, therefore, that the court below was in error in directing a verdict for the importers, and that the judgment of that court ought to be reversed, and the case remanded with directions to set aside the verdict, and to order a new trial, in order that a jury may pass upon the real character of the tobacco contained in the ten bales withdrawn by the importers. Judgment reversed. Mr. Justice Brewer did not sit at the argument or take part in the decision. NORTHERN PACIFIC RAILROAD v. HOLMES. 1J7 Opinion of the Court. NORTHERN PACIFIC RAILROAD COMPANY v. HOLMES. ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON. No. 64. Argued November 9,1894. — Decided November 12, 1894. This court has no jurisdiction to review a judgment of the Supreme Court of the State of Washington, denying a petition for a rehearing which had been presented to the Supreme Court of the Territory of Washington touching a cause therein decided, and had been transferred to the Supreme Court of the State under the provisions of the act of February 22, 1889, c. 180, 25 Stat. 676, admitting that State to the Union. Motion to dismiss. The case is stated in the opinion. ■J/r. W. R. Andrews for the motion. Mr. A. H. Garland, and Mr. James McNaught opposing. Mr. Chief Justice Fuller delivered the opinion of the court. James Holmes recovered judgment in the District Court of the Fourth Judicial District of the Territory of Washington against the Northern Pacific Railroad Company; the railroad company prosecuted an appeal therefrom to the Supreme Court of the Territory, and the judgment was affirmed by that court on February 2, 1888. Thereupon, and on the same day, the Supreme Court of the Territory, on the application of plaintiff in error, entered an order granting it leave to file a petition for rehearing on or before July 17, 1888, giving S1xty days after the determination of the petition within which to perfect proceedings upon appeal in the event that the petition should be denied, and staying all proceedings and witholding a remittitur pending the filing and determination of t e petition and for sixty days thereafter. The State of Washington was admitted into the Union ovember 11, 1889, and on March 8, 1890, an order was en-Ofcd by the Supreme Court of the State, reciting the affirm- 138 OCTOBER TERM, 1894. Opinion of the Court. ance of the judgment by the Supreme Court of the Territory and the order of that court of February 2, 1888, and further, that “ the said petition having been filed within the time provided by the order of said court and having been pending undetermined at the time of the admission of the State of Washington and the organization of this, the Supreme Court of the State, and this court having directed the defendant in error to answer said petition, the said answer having been filed within the time provided by said order, and said petition and answer having been taken under advisement by this court, now, on this 8th day of March, a.d. 1890, the court being fully advised in the premises, denies said petition for rehearing; to which ruling and judgment, as well as the judgment of the Supreme Court of said Territory affirming the judgment of said District Court, plaintiff in error, by its counsel, excepts, and said exception is allowed.” And it was ordered “ that a writ of error to the Supreme Court of the United States to the judgment of the Supreme Court of the Territory of Washington, now a record of this court, and to the judgment, order, and ruling of this court upon the petition for rehearing, be and hereby is allowed.” Supersedeas bond was given and approved, a writ of error issued, and citation signed and served. It is well settled that if a motion or petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Aspen Mining and Smelting Co. v. Billings, 150 U. S. 31, 36; Voorhees v. #0^ Mf'g Go., 151 U. S. 135. Under sections 22 and 23 of the act of Congress of February 22, 1889, c. 180, providing for the admission of the State of Washington into the Union, (25 Stat. 676, 682, 683, printed in the margin,1) this petition, which was pending in the 1 “ Sec. 22. That all cases of appeal or writ of error heretofore prosecuted and now pendingin the Supreme Court of the United States upon any record from the Supreme Court of either of the Territories mentioned in this act, NORTHERN PACIFIC RAILROAD v. HOLMES. 139 Opinion of the Court. Supreme Court of the Territory at the time of the admission of the State, became a matter over which the state court had or that may hereafter lawfully be prosecuted upon any record from either of said courts, may be heard and determined by said Supreme Court of the United States. And the mandate of execution or of further proceedings shall be directed by the Supreme Court of the United States to the Circuit or District Court hereby established within the State succeeding the Territory from which such record is or may be pending, or to the Supreme Court of such State, as the nature of the case may require. . . . And each of the Circuit, District, and state Courts, herein named, shall, respectively, be the successor of the Supreme Court of the Territory, as to all such cases arising within the limits embraced within the jurisdiction of such courts respectively with full power to proceed with the same, and award mesne or final process therein; and that from all judgments and decrees of the Supreme Court of either of the Territories mentioned in this act, in any case arising within the limits of any of the proposed States prior to admission, the parties to such judgments shall have the same right to prosecute appeals and writs of error to the Supreme Court of the United States as they shall have had by law prior to the admission of said State into the Union. “ Sec. 23. That in respect to all cases, proceedings, and matters now pending in the Supreme or District Courts of either of the Territories mentioned in this act at the time of the admission into the Union of either of the States mentioned in this act, and arising within the limits of any such State, whereof the Circuit or District Courts by this act established might have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases, the said Circuit and District Courts, respectively, shall be the successors of said Supreme and District Courts of said Territory; and in respect to all other cases, proceedings, and matters pending in the Supreme or District Courts of any of the Territories mentioned in this act at the time of the admission of such Territory into the Union, arising within the limits of said proposed State, the courts established by such State shall, respectively, be the successors of said Supreme and District Territorial Courts; and all the files, records, indictments, and proceedings relating to any such cases, shall be transferred to such Circuit, District, and state Courts, respectively, and the same shall be proceeded with therein in due course of law; but no writ, action, indictment, cause, or proceeding now pending, or that prior to the admission of any of the States mentioned in this act, shall be pending, in any territorial court in any of the Territories mentioned in this act, shall abate by the admission of any such State into the Union, but the same shall be transferred and proceeded with in the proper United States Circuit, istrict or state court, as the case may be: Provided, however, That in all civil actions, causes, and proceedings, in which the United States is not a Party, transfers shall not be made to the Circuit and District Courts of the 140 OCTOBER TERM, 1894. Opinion of the Court. jurisdiction. The court took jurisdiction, and might, in its exercise, have granted a rehearing and reversed the judgment, but, upon consideration, both parties presenting their views, saw fit to refuse the rehearing, and thereby to confirm the action of the Supreme Court of the Territory in affirming the judgment. It was then that the judgment took final effect for the purposes of the writ of error, and plaintiff in error so regarded it. But plaintiff in error could not take the writ to the Supreme Court of the Territory, for when that court ceased to exist, a petition for rehearing was pending, which, after the admission, could not be disposed of by that court, and which plaintiff in error did not deem expedient to withdraw or abandon. And if the petition and the case could have been transferred to the Circuit Court of the United States because plaintiff in error was a corporation created by the United States, Glaspell v. Northern Pacific Railroad, 144 U. S. 211, that could only have been done upon request, and no request to that effect was preferred. On the contrary, plaintiff in error elected to continue the jurisdiction of the cause in the Supreme Court of the State, and as no Federal question was involved and the judgment could not take effect so far as a review of it on error was concerned until after the state court acted, and only through that action, the writ of error cannot be maintained. Moreover, the judgment of the Supreme Court of the Territory was rendered February 2, 1888, and the writ of error was not brought until more than two years thereafter, and, therefore, too late, unless the time of the pendency of the petition in that court were deducted, which is quite inadmissible in view of the fact that the petition remained pending notwithstanding the admission of the State had terminated the existence of the court in which it was originallv filed. The result is that the writ of error must be Dismissed. United States, except upon written request of one of the parties to such action or proceeding filed in the proper court; and in the absence of such request such cases shall be proceeded with in the proper state courts.” OLIN v. TIMKEN. 141 Statement of the Case. Northern Pacific Railroad Company v. O’Brien. Error to the Supreme Court of the State of Washington. No. 65. Argued November 9, 1894. — Decided November 12, 1894. The Chief Justice : This case falls within that just decided, and, for the reasons there given, the writ of error must be Dismissed. Mr. Reese H. Voorhees for the motion to dismiss. Mr. A. H. Garland, with whom were Mr. James McNaught and Mr. H. J. May, opposing. OLIN v. TIMKEN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. No. 36. Argued October 12,15,1894. — Decided November 19,1894. The fifth claim in reissued letters patent No. 9542, granted January 25 1881, to Joseph Tilton and Rufus M. Stivers for a spring for vehicles, on the surrender of letters patent No. 157,430, dated December 1, 1874, is an expansion of the invention described in the original patent, and the reissue is thus invalidated. Letters patent No. 197,689, granted November 27, 1877, to Henry Timken for improvement in carriage springs, are void for want of patentable novelty in the invention so patented. Letters patent No. 239,850, granted April 5, 1881, to Cyrus W. Saladee for an improvement in spring-supports for vehicles, wagon-seats, etc., relate to a device which was anticipated by another invention made more than two years prior to the application for that patent, and reduced to practice prior to that application, and by other inventions named in the opinion of the court, and are void for want of patentable novelty. This was a bill in equity, filed by Henry Timken in the Circuit Court of the United States for the Southern District of Ohio against Thomas D. Olin and Edwin D. Olin to restrain the infringement of three letters patent, namely, No. 197,689, granted to Henry Timken, November 27, 1877, for improvement in “ carriage springs ; ” No. 239,850 to C. W. Saladee, pril 5, 1881, for “ road wagon; ” reissue patent No. 9542, 142 OCTOBER TERM, 1894. Opinion of the Court. granted January 25,1881, being a reissue of patent No. 157,430, to Tilton and Stivers for improvement in “ springs for vehicles,” dated December 1, 1874. Complainant charged that these patents were capable of conjoint use with each other, and that defendants infringed them all. The answer set up want of patentability; anticipation; prior public use; noninfringement ; that defendants had the right to manufacture the vehicle springs they made, under a patent, No. 246,571, granted to W. H. Stickle, August 30, 1881, reissued to the defendant Thomas D. Olin, August 21, 1883, as reissue No. 10,372, and which patent was owned by the defendants; also that the Tilton and Stivers’ reissue was utterly void, because not issued for the same invention as the original patent, and for inventions not shown or described therein. The Circuit Court held the patents valid, and that the defendants infringed the single claims of the Timken and Saladee patents, and the third, fourth, and fifth claims of the Tilton and Stivers’ patent, and entered a decree enjoining defendants and referring the cause to a master for an account, which resulted in a final decree for damages to the amount of $27,897.75, and defendants appealed. The opinion will be found in 37 Fed. Rep. 205. Mr. George J. Murray for appellants. Mr. William, M. Eccles for appellee. Mb. Chief Justice Fuller, after stating the case, delivered the opinion of the court. Appellants manufactured no buggies or vehicles of any kind, but purchased and made springs which were fitted on wooden bars to be attached to the vehicles, and sold such spring bars in the market and to manufacturers of vehicles. The claims of the three patents, on which appellee’s suit was based, were to combinations relating to side-bar buggies and wagons, the side-bar gear and buggy body being elements of each combination. These patents are as follows: OLIN v. TIMKEN. 143 Opinion of the Court. 1. No. 197,689, declared to be for “ improvement in carriage springs,” was granted to Henry Timken, November 27, 1877, upon application filed October 27,1877. The drawings consisted of three figures: (1) a side view of a wagon body with a spring attached; (2) a bottom view of a wagon showing the spring; and (3) “ a sectional end view thereof.” The latter figure is as follows: The specification states : “ My invention relates to buggy and wagon springs; and it consists in the attachment of springs to the bottom of the body at the sides, and crossing the bottom of the body, and connecting with the side bars on the opposite sides of the body, as will be hereinafter more fully set forth. “ The annexed drawing, to which reference is made, fully illustrates my invention. “A represents the hind axle, and A' the front axle, the latter having the usual head-block B. The hind axle A and head-block B are connected by side bars CO, in the usual manner. D represents the body of the vehicle. “ The body D is connected to the side bars CC by means of two springs, GG, composed of one or more plates near each end. These springs are fastened to the under side of the body 0 at opposite sides. The springs then cross each other, and their ends are pivoted or hinged in clips II, fastened to the opposite side bars, as shown. “By this construction and arrangement of the springs I secure length of springs and elasticity of motion, and at the same time hanging the body low. 144 OCTOBER TERM, 1894. Opinion of the Court. “What I claim as new, and desire to secure by letters patent, is — « In combination with the side bars CO and body D, the springs GG, attached to the under side of the body at opposite sides, then crossing each other, and connected to the side bars on opposite sides, substantially as herein set forth.” 2. No.'9542, reissue, dated January 25, 1881, upon application filed November 27, 1880, being a reissue of patent No. 157,430 to Tilton and Stivers, for springs for vehicles, dated December 4, 1874, upon application filed November 25, 1874. The specification of the original patent read thus: “ The object of the present invention is to provide springs designed especially for buggies, carriages, and other light vehicles, which shall obviate all rocking motion of the body supported thereon, and cause the latter to be always maintained in a horizontal position when moving up or down, or when in a stationary position. “The invention consists in the employment of two independent crossed-leaf metal springs, the ends of which are rigidly secured to the opposite ends of the cross-bar supporting the vehicle-body, each spring being formed or provided with a socket, and the two sockets meeting each other at the centre of the body-supporting bar, so as to enable an axis or pivot bolt to be passed through both sockets, for enabling the springs to turn thereon when the body is elevated or depressed. The invention further consists in securing a bearing and reenforcing plate of metal to the under side of the body-supporting bar, said plate being provided with pendent flanges at both ends, to serve as bearing-points for the ends of the springs, in order to prevent any lateral movement of the same, and to serve, in connection with fastening-bolts, to securely hold the springs in place. * * * * * “ It is well known that elliptic or semi-elliptic springs, secured to the centre of the cross-bar supporting a carriagebody, will permit the same to rock from side to side, which is objectionable for various reasons. “ I propose to maintain a buggy, carriage, and other vehicle OLIN v. TIMKEN 145 Opinion of the Court. body always in a horizontal position in respect to the springs and running-gear, and this is accomplished by employing a pair of springs, AA, which may properly be termed sections of semi-elliptic springs. The springs are arranged to cross each other at the centre of the cross-bar B, upon which the carriage-body is placed, and their elevated or upper ends are permanently secured at the opposite ends of said cross-bars by means of bolts and nuts a. Each spring is provided with a socket, c, at the crossing point, and through said sockets, which are thus brought in line with each other, an axis or pivot bolt, D, is passed. A nut, 5, is applied to the screw-threaded projecting end of the bolt for securing the same in place. Each spring is generally formed of two or more leaves — a long lower leaf and a shorter upper leaf — this construction being resorted to in order to obtain greater strength, and to enable the socket C to be more readily formed.” ***** The claims were as follows: “ 1. The combination of two springs, each composed of one or more leaves, and hinged together at their crossing point, and provided with an eye at one end to connect with the side sills of the running-gear, and at the other end connected with the cross-bar for supporting the body of the vehicle, substantially as described. “2. The two leaf-springs, each provided with a socket at their crossing point, in combination with a pivot or axis bolt, substantially as described. 3. The combination of two springs side by side, and connected together, with the side sills and cross-bar, for supporting the body in a horizontal position between the side sills, substantially as described. 4. The reenforcing and bearing plate I, having end flanges, ln combination with the body-supporting bar and the connected cross-springs, substantially as described.” (( he specification was amended in the reissue by substituting cross-piece attached to the body,” for “ cross-bar supporting e vehicle body,” « the body-supporting bar,” or “ bar supporting the body; ” and also by inserting after the word vo?.. clv—io 146 OCTOBER TERM, 1894. Opinion of the Court. “spring,” in the line reading “each spring being formed or provided with a socket,” the word “ preferably,” and after the words “ spring is,” in the line reading “ each spring is provided with a socket, Pet. 8, certain payments had been made to the first bank upon a decision by the court below, with notice that the payer intended to take the case to the Supreme Court of the United States, and would expect the payee, the Bank of the United States, to refund the money if that court should reverse the decision of the court below, and hold that it was not due. The court said: “No notice whatever could change the rights of the parties so as to make the Bank of the United States responsible to refund the money.” The whole case of this relator is covered by Gilbert v. United States, 8 Wall. 358, in which this court, through Mr. Justice Miller, said: “ If the claimants had any objection to the provisions of the contract they signed, they should have refused to make it. Having made it and executed it, their mouths are closed against any denial that it superseded all previous arrangements.” The claim that the purpose of the mandamus which is here asked is not to determine the existence of a contract, or of rights arising thereunder, but only to require the furnishing of evidence, simply changes the form of the contention without affecting its real merits. If, as we have shown, there is no duty resting upon the Secretary to enter into the contract here claimed, necessarily there can be no duty on his part to put into the hands of the relator evidence of the contract having been entered into. Judgment affirmed. PEARCE v. TEXAS. 311 Opinion of the Court. PEARCE v. TEXAS. ERROR TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS. No. 596. Submitted November 19,1894.—Decided December 10,1894. P. being arrested in Texas on a requisition from the governor of Alabama for his extradition for trial in Alabama on an indictment for embezzlement and larceny, sought his discharge through a writ of habeas corpus on the ground of the invalidity of the indictment under the laws of Alabama. The Court of Criminal Appeals of Texas decided that, as it appeared that P. was charged by an indictment in Alabama with the commission of an offence there, and that all the other prerequisites for his extradition had been complied with, he should be extradited, leaving the courts of Alabama to decide whether the indictment was sufficient, and whether the statute of that State was in violation of the Constitution of the United States. Held, that this decision did not deny to P. any right secured to him by the Constitution and laws of the United States, and did not erroneously dispose of a Federal question. Motion to dismiss or affirm. The case is stated in the opinion. Mr. William L. Martin, Attorney General of the State of Alabama, for the motion. No one opposing. Mr. Chief Justice Fuller delivered the opinion of the court. George A. Pearce was arrested in the State of Texas on an executive warrant issued by the governor of that State, upon the requisition of the governor of the State of Alabama, to be delivered up to the State of Alabama to answer two indictments against him in the city court of Mobile, Alabama, each charging him with embezzlement and grand larceny; and while in the custody of the agent of the State of Alabama to be transported to Mobile for trial upon said indictments he sued out a writ of habeas corpus before the judge of the 42d district of 312 OCTOBER TERM, 1894. Opinion of the Court. the State of Texas, praying, for the reasons therein stated, to be discharged. On the hearing of the petition the district judge refused to discharge Pearce, and remanded him to the custody of the agent. Pearce thereupon appealed to the Court of Criminal Appeals of the State of Texas, the court of last resort in criminal matters, where the judgment below was affirmed. 32 Tex. Crim. App. 301. The grounds on which the relator contended that he was entitled to be discharged were, as stated by the Court of Appeals, that the indictments were insufficient to authorize his extradition, because it was not alleged therein that the offences were committed in the State of Alabama, and in violation of her laws; that the indictments were wholly void in that no time or place were laid therein, and it did not appear where the offences were committed, nor that they were not long since barred. Relator further showed that he had been a citizen of Texas for more than three years, and that his whereabouts were known to interested parties in Alabama, this proof being made under the statute of limitations, presumably of Texas, as it did not appear how long the offences were committed prior to the February term, 1889, of the Mobile city court, at which term the indictments were found, nor what was the statute of limitations in Alabama, if any, for embezzlement and theft. The relator did not deny that he was a fugitive from justice within the rule on that subject or raise any issue thereon. The record showed the requisition made by the governor of Alabama; copies of the indictments duly certified; the warrant of the governor of Texas; and in effect the relator relied for his discharge entirely upon the invalidity of the indictments. The District Judge certified that, on the hearing below, he had examined the laws of the State of Alabama, and found the indictments sufficient thereunder, or “ at least not void.” An opinion was filed in the Court of Appeals by Simkins, J., in which it was held that any indictment which, under the laws of the demanding State, sufficiently charges the crime, will sustain a requisition even though insufficient under the laws of the asylum State; that in this case there was no question as to the nature of the crimes charged, and that they were PEARCE v. TEXAS. 313 Opinion of the Court. offences against the laws of Alabama ; that indictments dispensing with the allegations of time and venue in conformity with the code of Alabama had been sustained by judicial decision in that State, Noles v. State, 24 Alabama, 672; Thompson v. State, 25 Alabama, 41 ; and were not necessarily fatally defective in every State of the Union, whatever its statutes or forms of proceeding. The majority of the court did not concur in all the propositions stated in the opinion, but expressed their views as follows: “We desire to modify certain propositions stated in the opinion of Judge Simkins. It is intimated, if not stated directly, that the relator would have the right to show by proper evidence that the indictment in substance was not sufficient under the laws of the demanding State. Our position upon this question is that if it reasonably appears upon the trial of the habeas corpus that the relator is charged by indictment in the demanding State, whether the indictment be sufficient or not under the law of that State, the court trying the habeas corpus case will not discharge the relator because of substantial defects in the indictment under the laws of the demanding State. To require this would entail upon the court an investigation of the sufficiency of the indictment in the demanding State, when the true rule is that if it appears to the court that he is charged by an indictment with an offence, all other prerequisites being complied with, the applicant should be extradited. We are not discussing the character of such proof ; this must be made by a certified copy of the indictment, etc.” It was not disputed that the indictments were in substantial conformity with the statute of Alabama in that behalf, and their sufficiency as a matter of technical pleading would not be inquired into on habeas corpus. Ex parte Reggel, 114 U. S. 642. Nor was there any contention as to the proper demand having been made by the executive authority of the State from whence the petitioner had departed, or in respect of the discharge of the duty imposed by the Constitution and laws of the United States on the executive authority of the asylum State to cause the surrender. The question resolved itself, therefore, into one of the validity of the statute on the ground 314 OCTOBER TERM, 1894. Syllabus. of its repugnancy to the Constitution, and the Court of Appeals declined to decide in favor of its validity. And if it could be said upon the record that any right under the Constitution had been specially set up and claimed by plaintiff in error at the proper time and in the proper way, the state court did not decide against such right, for the denial of the right depended upon a decision in favor of the validity of the statute. What the state court did was to leave the question as to whether the statute was in violation of the Constitution of the United States, and the indictments insufficient accordingly, to the demanding State. Its action in that regard simply remitted to the courts of Alabama the duty of protecting the accused in the enjoyment of his constitutional rights, and if any of those rights should be denied him, which is not to be presumed, he could then seek his remedy in this court. We cannot discover that the Court of Appeals, in declining to pass upon the question raised in advance of the courts of Alabama, denied to plaintiff in error any right secured to him by the Constitution and laws of the United States, or that the court in announcing that conclusion erroneously disposed of a Federal question. Judgment affirmed. WEHRMAN v. CONKLIN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA. No. 45. Argued October 31,1894. — Decided December 10,1894. The general principles of equity jurisprudence, as administered in this country and in England, permit a bill to quiet title to be filed only by a party in possession, against a defendant who has been ineffectually seeking to establish a legal title by repeated actions of ejectment; and as a prerequisite to such bill it was necessary that the title of the plaintiff should have been established by at least one successful trial at law. The statutes of Iowa, (Code, § 3273,) having enlarged the jurisdiction of the courts of equity of that State by providing that “ an action to determine and quiet title to real property may be brought by any one having or WEHRMAN v. CONKLIN. 315 Syllabus. claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession,” such enlarged jurisdiction, if sought to be enforced in a Federal court, sitting within the State, can only be exercised subject to the constitutional provision entitling parties to a trial by jury, and to the provision in Rev. Stat., § 723, prohibiting suits in equity where a plain, complete and adequate remedy may be had at law. In December, 1859, the land, the subject of controversy in this suit, was patented to A. W. In the same month it was conveyed by A. W. and his wife to F. W. In January, 1861, G. caused it to be attached as the property of A. W. in an action founded upon a judgment obtained against him in a court in Wisconsin, which case proceeded to judgment against A. W. in September, 1861. Prior to levy of execution in that case, G., in a suit in equity against A. W. and F. W., obtained a decree declaring the deed to be void and ordering the land to be sold in satisfaction of the judgment at law. Levy was made, the land was sold, and the sheriff made a deed conveying the property to G., who entered into possession, paid taxes, and in 1881, 1882, and 1884 conveyed the lands to C., who entered into possession and made valuable improvements upon them. For thirty years the taxes have been paid by C. and his privies in estate. F. W. having set up a claim to the property by reason of alleged irregularities in the proceedings by which G. acquired title, and having commenced an action in ejectment to enforce that claim, C. filed this bill in equity setting up the foregoing facts, averring that the deed by A. W. to F. W. was a cloud upon his title, and praying for a stay of the action of ejectment, for an injunction against further proceedings at law, and for a decree that C. held the lands free and clear from all claims of F. W. A demurrer was interposed setting up among other things that the writ of attachment was not attested by the seal of the court; that no service of summons or notice was had upon A. W. in the State of Iowa; and other matters named in the opinion. The demurrer being overruled, answer was made, and a final decree was made in plaintiff’s favor. Held, (1) That the plaintiff had no adequate remedy at law, and the Circuit Court consequently had jurisdiction in equity; (2) That if no action in ejectment had been begun at law, the long con- tinued adverse possession of the plaintiff, and the equitable title set up in the bill would have been a sufficient basis for the maintenance of the suit; (3) That, where title to real property is concerned, equity has a con- current jurisdiction, which affords more complete relief than can be obtained in a court of law; (4) That the bill was in the nature of a judgment creditor’s bill, setting up defects of title, against which they had a right to ask relief from a court of equity; (5) That it was immaterial whether the defects in the title of G. were well founded or not; (6) That the absence of the seal did not invalidate the writ. 316 OCTOBER TERM, 1894. Statement of the Case. This was a bill in equity brought by the appellees, Conklin and wife, to enjoin the plaintiff, Wehrman, from prosecuting an action of ejectment in the court below, against the appellees, to recover possession of the lands in controversy. The bill, which was filed by T. B. Conklin and E. F. Conklin, whose Christian names are not given, but who appear from subsequent allegations to be husband and wife, set forth that they were the “ absolute owners ” of the property, which had been purchased of the United States on June 9, 1857, by one Adolph Wehrman, who received a patent therefor on December 1, 1859. Afterwards, and on December 17, 1859, Adolph Wehrman and wife conveyed the land in controversy with other lands — about 2060 acres in all — by deed of warranty, to the defendant Frederick Wehrman for an expressed consideration of $3000. This deed was recorded in the proper office for the county of Woodbury, to which the county of O’Brien, wherein the lands were situated, was then attached for judicial purposes. The bill further alleged that on January 14, 1861, a copartnership known as Greeley, Gale & Co. began an action at law, aided by an attachment in the District Court of O’Brien County, upon a judgment rendered by the Circuit Court of Pierce County in the State of Wisconsin, against Adolph Wehrman, which judgment was based upon notes given prior to the date of the conveyance of said lands to the defendant by Adolph Wehrman. Such judgment was rendered after personal service upon Adolph Wehrman in the State of Wisconsin. A writ of attachment was issued by the clerk of the District Court of O’Brien County, and levied upon the lands in question, and notice personally served upon the defendant in the State of Wisconsin, although no service of summons or notice appears to have been had in the State of Iowa. At the time the writ of attachment was issued there was no time fixed by law for holding the term of the District Court in O’Brien County, though subsequently the judge appointed a term to be held on the 3d day of June, 1861, to which day the writ of attachment was actually made returnable. The venue of the cause having been changed to the county of WEHRMA.N v. CONKLIN. 317 Statement of the Case. Woodbury, on September 17, 1861, a judgment was rendered by the District Court of that county against the defendant Wehrman for $1809.40 damages and costs, and the lands “ described in the writ of attachment ” were ordered to be sold in satisfaction thereof. A certified copy of this judgment was filed in the District Court of O’Brien County. Afterwards, and prior to the June term of 1862, Greeley, Gale & Co. commenced a suit in equity in the District Court of O’Brien County, against Adolph Wehrman and wife -and Frederick Wehrman, for the purpose of setting aside and cancelling the deed from Adolph Wehrman and wife to Frederick Wehrman, as fraudulent and void against the creditors of the former, and subjecting the lands described in this deed to the payment and satisfaction of their judgment against Wehrman. The plaintiffs averred that they were unable to set out the proceedings in such suit for the reason that they had become lost and destroyed, but that there was personal service upon the defendants in the State of Wisconsin ; that, subsequently, and at the June term of 1862, a decree was rendered by default declaring the deed to be fraudulent and void, and ordering the lands to be sold in satisfaction of the judgment rendered by the District Court of Woodbury County, and the proceeds to be applied to the payment of such judgment ; that an execution was subsequently, and on June 16, 1862, issued from the District Court of Woodbury County, directed to the sheriff of O’Brien County, by virtue of which the sheriff levied upon the lands described in the writ of attachment, and sold the same on July 31, 1862, to Carlos S. Greeley, one of the members of the firm of Greeley, Gale & Co., who thereupon acknowledged satisfaction of the judgment ; and that on December 31, 1864, the land not being redeemed, the sheriff executed to Greeley a sheriff’s deed, which was filed, whereby Carlos S. Greeley became the absolute owner of the land. That he subsequently acquired a tax title to such lands for the taxes of 1858 and 1859, and that said lands by conveyances from Greeley in 1881,1882, and 1884, became the property of Conklin, who took immediate possession and has since been j© 318 OCTOBER TERM, 1894. Statement of the Case. full, open, notorious, and adverse possession of the same. That the plaintiffs and their grantors paid all the taxes upon such lands for thirty years, and have made valuable improvements by putting some six hundred acres under cultivation, by the erection of substantial buildings and fences, digging wells and otherwise improving the premises. That such improvements have been made at an expense of $1000 and in full reliance upon their title being good and valid. That in the meantime defendant has never asserted any right or title to the premises, or notified plaintiff of his interest in the same. That Wehrman never asserted any claim to the premises, until the land became valuable by reason of the plaintiffs’ expenditures; had never paid any taxes upon the property, and, though having actual knowledge of the proceedings taken by Greeley, Gale & Co. to subject the land to the payment of their judgment, for more than twenty-seven years took no steps to have the records corrected, or asserted any claim, or notified purchasers of such claim, until his action at law was commenced. The bill further averred the conveyance by Adolph Wehrman to be a cloud upon their title, and, being in actual possession and occupancy of the land, they prayed that the action in ejectment be stayed until the determination as to their rights to the land, and that Wehrman be enjoined from further proceedings at law. Defendant interposed a demurrer to the bill for the want of jurisdiction and of equity, which was overruled; and he thereupon answered setting up certain defects in the proceedings under which Greeley, Gale & Co. sold the land upon execution, and by virtue of which proceedings plaintiffs claimed to have acquired a title, viz.: (1) that the writ of attachment was not attested by the seal of the court in which the action was brought; (2) that no service of summons or notice was had upon the defendant Adolph Wehrman in the State of Iowa; (3) that such notice as was given described the action as having been brought upon a judgment rendered May 12, 1860, when in fact the judgment was rendered September 12, 1860, and judgment was taken upon the attachment proceedings upon a judgment so rendered September 12, 1860; WEHRMAN v. CONKLIN. 319 Argument for Appellant. (4) that the writ of attachment was made returnable at a term commencing on June 3, 1861, when in fact the commencement of that term was not fixed until more than a month after the writ was issued; (5) that a change of venue was ordered from O’Brien County to Woodbury County, and the papers sent there without having been in any manner certified or verified by the seal of the court in which the suit was brought; (6) that the judgment was in personam, and ordered the property “ described in the writ of attachment ” to be sold to satisfy the same, when in fact no property was described in the writ, but only in the return of the officer endorsed thereon; (7) that in the subsequent equity suit to subject the lands to the payment of this judgment, there was no personal service or notice of process upon the appellant, Frederick Wehrman, in the State of Wisconsin; (8) that the tax deed was defective, inasmuch as the taxes on the lands for 1858 and 1859 were payable by law to the treasurer of Woodbury County, whereas the tax deed shows that the treasurer of O’Brien County attempted to sell the lands for taxes and give a tax deed. The case was argued upon pleadings and proofs, and the court made a final decree in which the adverse claims of the defendant Wehrman were adjudged to be invalid and groundless, the complainants decreed to be the true and lawful owners of the land, and their title to be quieted against the claims of the defendant, who was perpetually enjoined from setting up the same; and further, that defendant be enjoined from further proceedings at law. From this decree defendant appealed to this court. The opinion of the court upon demurrer is found in 38 Fed. Rep. 874, and upon final hearing in 43 Fed. Rep. 12. Jfr. Charles A. Clark for appellant, to the question of equitable jurisdiction, said: Wehrman brought his action at law, to recover possession of the lands in controversy. He claims by a strictly legal title. Conklin claims by a strictly legal title. Appellant was entitled to a trial by jury to determine the validity of his title 320 OCTOBER TERM, 1894. Argument for Appellant. and that of Conklin. Equity has no jurisdiction to deprive him of this right. Lewis v. Cocks, 23 Wall. 466; Fussell v. Gregg, 113 IT. S. 550; Killian n. Ebbinghaus, 110 IT. S. 568 ; Kipp v. Babin, 19 How. 271; Grand Chute v. Wi/negar, 15 Wall. 373; Whitehead n. Shattuck, 138 U. S. 146. It will be observed that these decisions proceed upon the ground that both parties have a constitutional right to trial by jury. The party out of possession, who brings his action at law to eject his adversary and try the question of legal title to the real estate, is as much entitled to the right of trial by jury as the party in possession, who also claims under a legal title. Both parties to this controversy claim that they hold the legal title to the land. If Conklin holds such legal title by virtue of the sheriff’s deed or his tax deed, under which he claims, he has an adequate and complete remedy at law, by asserting and maintaining such legal title in the action at law brought against him by Wehrman. If, however, the pretended equitable estoppel which he sets up is requisite to the establishment of his title or right to possession of the land, he can prove and establish that equitable estoppel as a defence in the action at law, as well as he can assert it as a foundation for his suit in equity. Such is the established doctrine of this court. Dickerson v. Golgrove, 100 U. S. 578; Kirk v. Hamilton, 102 IT. S. 68; Bacon v. Northwestern Ins. Co., 131 IT. S. 258. So far as any question of equitable estoppel is concerned, therefore, Conklin had an adequate and complete remedy at law, by asserting and proving such estoppel as a defence to the action in ejectment. It is also settled law that the equitable jurisdiction of Federal courts can be neither enlarged nor diminished by state legislation. Such was the decision of this court in a case cited supra, where the statutes of Iowa authorized a suit in equity on a legal title against a party in the possession of real estate. Whitehead v. Shattuck, 138 IT. S. 146. See also Mississippi Mills v. Cohn, 150 IT. S. 202; Payne v. Hook, 7 Wall. 425; McConahy Wright, 121 IT. S. 205; Scott v. Neel/y, 140 IT. S. WEHRMAN v. CONKLIN. 321 Opinion of the Court. 106; Gates n. Allen, 149 U. S. 451; Swan Land <& Cattle Co. v. Frank, 148 U. S. 612. Mr. Ernest C. Herrick for appellees. Mr. Justice Brown, after stating the case, delivered the opinion of the court. This is a bill in equity not only to stay an action in ejectment at law, but to remove a cloud cast upon Conklin’s title to the lands in question, created by a deed from Adolph Wehrman to Frederick Wehrman, appellant and defendant in the bill, and to quiet their own title thereto. 1. Defendant’s principal contention is that equity has no jurisdiction of the case, for the reason that the contest concerns the legal title only, and that plaintiffs have a plain, adequate, and complete remedy at law. It is undisputed that Carlos S. Greeley, a member of the firm of Greeley, Gale & Co., bought the lands in question at a sheriff’s sale which took place on July 31,1862, and that for about twenty years thereafter, when the lands were sold to Conklin, he paid the taxes upon the land. That the Conklins upon their purchase of the several parcels took immediate possession, and that they have since been in full, open, and adverse possession and occupancy of the same; have made large and valuable improvements thereon by putting some six hundred acres under cultivation, and by erecting substantial buildings and fences, digging wells and otherwise improving the premises, making the same more valuable, and have expended a thousand dollars in such improvements in good faith, and full reliance upon such title being good and valid. That the defendant during such time, and for more than twenty-seven years, had never done any act or taken any step to have the records corrected or to assert any claim on his part to such lands, or to notify purchasers of his interest in the same until he began his action of ejectment. The general principles of equity jurisprudence, as administered both in this country and in England, permit a bill to quiet title to be filed only by a party in possession against a vol. clv—21 322 OCTOBER TERM, 1894. Opinion of the Court. defendant, who has been ineffectually seeking to establish a legal title by repeated actions of ejectment, and as a prerequisite to such bill it was necessary that the title of the plaintiff should have been established by at least one successful trial at law. Pomeroy’s Equity Jurisprudence, sections 253, 1394, and 1396. At common law a party might by successive fictitious demises bring as many actions of ejectment as he chose, and a bill to quiet title was only permitted for the purpose of preventing the party in possession being annoyed by repeated and vexatious actions. The jurisdiction was in fact only another exercise of the familiar power of a court of equity to prevent a multiplicity of suits by bills of peace. A statement of the underlying principles of such bills is found in the opinion of this court in Holland v. Challen, 110 U. S. 15, 19, in which it is said: “ To entitle the plaintiff to relief in such cases the concurrence of three particulars was essential: He must have been in possession of the property; he must have been disturbed in its possession by repeated actions at law; and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief could be afforded against vexatious litigation and the irreparable mischief which it entailed.” This method of adjusting titles by bill in equity proved so convenient, that in many of the States statutes have been passed extending the jurisdiction of a court of equity to all cases where a party in possession, and sometimes out of possession, seeks to clear up his title and remove any cloud caused by an outstanding deed or lien which he claims to be invalid, and the existence of which is a threat against his peaceable occupation of the land, and an obstacle to its sale. The inability of a court of law to afford relief was a strong argument in favor of extending the jurisdiction of a court of equity to this class of cases. The statute of Iowa, upon which this bill is based, is an example of this legislation, and provides (sec. 3273) that “ an WEHRMAN v. CONKLIN. 323 Opinion of the Court. action to determine and quiet title to real property may be brought by any one having, or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession.” It will be observed that this statute enlarges the jurisdiction of courts of equity in the following particulars: 1. It does not require that plaintiff should have been annoyed or threatened by repeated actions of ejectment. 2. It dispenses with the necessity of his title having been previously established at law. 3. The bill may be filed by a party having an equitable as well as a legal title. Grissom v. Moore, 106 Indiana, 296; Stanley n. Holliday, 30 N. E. Rep. 634; Echols v. Hubbard, 1 South. Rep. 817. 4. In some States it is not even necessary that plaintiff should be in possession of the land at the time of filing the bill. These statutes have generally been held to be within the constitutional power of the legislature; but the question still remains, to what extent will they be enforced in the Federal courts, and how far are they subservient to the constitutional provision entitling parties to a trial by jury, and to the express provision of Revised Statutes, section 723, inhibiting suits in equity in any case where a plain, complete, and adequate remedy may be had at law. These provisions are obligatory at all times and under all circumstances, and are applicable to every form of action, the laws of the several States to the contrary notwithstanding. Section 723 has never been regarded, however, as anything more than declaratory of the existing law, Boyce v. Grundy, 3 Pet. 210, and as was said in N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S. 205, 210, “ was intended to emphasize the rule, and to impress it upon the attention of the courts.” It was not intended to restrict the ancient jurisdiction of courts of equity, or to prohibit their exercise of a concurrent jurisdiction with courts of law in cases where such concurrent jurisdiction had been previously upheld. The question of enforcing these state statutes was first con- 324 OCTOBER TERM, 1894. Opinion of the Court. sidered in Clark v. Smith, 13 Pet. 195, in which a bill was filed by a party in possession to compel the defendant to release a pretended title to certain lands claimed by him under patents from the State of Kentucky. The conveyance asked by the bill was sought to be in conformity with the provisions of an act of the assembly of Kentucky giving jurisdiction to courts of equity in such cases. It was held that the legislature “ having created a right, and having at the same time prescribed the remedy to enforce it, if the remedy prescribed is consistent with the ordinary modes of procedure on the chancery side of the Federal courts, no reason exists why it should not be pursued in the same form as in the state courts. On the contrary, propriety and convenience suggest that the practice should not materially differ, where titles to land are the subjects of investigation.” This case was cited and approved in Parker v. Overman, 18 How. 137, where a proceeding under a statute of Arkansas, prescribing a special remedy for the confirmation of sales of land by a sheriff, was held to be enforceable in the Federal courts. In Holland v. Challen, 110 IT. S. 15, the principle of this case was extended to one of wild land, of which neither plaintiff nor defendant was in possession. Plaintiff claimed under a tax title, and the property was described in the bill as unoccupied, wild, and uncultivated land. The question was elaborately examined, and the jurisdiction sustained upon the ground that an enlargement of equitable rights by state statutes may be administered in the Federal courts as well as in the courts of the State, citing Clark v. Smith, and the case of Brodericks Will, 21 Wall. 503, 520. The case was treated as one where the plaintiff had no remedy at law against the defendant, who claimed an adverse interest in the prefnises. In delivering’the opinion, however, it was intimated, page 25, that if a suit were brought in the Federal court under the Nebraska statute, against a party in possession, “there would be force in the objection that a legal controversy was withdrawn from a court of law ; but that is not this case, nor is it of such case we are speaking.” Another step in the same direction was taken in Reynolds v. Crawfordsville Bank, 112 WEHRMAN v. CONKLIN. 325 Opinion of the Court. U. S. 405, in which a bill was sustained upon an equitable title, although it would appear from the report of the case that such title was not fortified by an actual possession; and in Chapman v. Brewer, 114 U. S. 158, a similar suit was upheld under a statute of Michigan permitting bills to quiet title to be filed by any person in possession. Subsequent cases, however, denied the power of the Federal courts to afford relief under such statutes where the complainant was not in possession of the land, and in Whitehead v. Shattuck, 138 U. S. 146, particularly, it was held that, where the proceeding is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law. “ The right which in this case the plaintiff wishes to assert is his title to certain real property; and the remedy which he wishes to obtain is its possession and enjoyment; and in a contest over the title both parties have a constitutional right to call for a jury.” The case of Holland v. Challen was distinguished as one where neither party was in possession of the property, and it was further said that in the case of Reynolds v. Crawfordsville Bank the question did not arise as to whether the plaintiff had a remedy at law, but whether a suit to remove the cloud mentioned would lie in a Federal court. The case of United, States v. Wilson, 118 IT. S. 86, was really to the same effect, though not cited in Whitehead v. Shattuck. See also Frost v. Spitley, 121 U. S. 552. But nothing was said in either of these to disturb the harmony of the previous cases. The real question, then, to be determined in this case is, whether the plaintiffs have an adequate remedy at law. If they have, then section 723 is controlling, and, notwithstanding a local practice under the code, where no discrimination is made between actions at law and in equity, may authorize such suit, the Federal courts will not entertain the bill, but will remit the parties to their remedy at law. The bill under consideration alleges the plaintiffs to be the “ absolute owners” of the premises, and then sets forth certain proceedings by which it is alleged they became such; but it is claimed and substantially admitted in the bill that, by reason of certain 326 OCTOBER TERM, 1894. Opinion of the Court. irregularities in these proceedings, it is doubtful whether the legal title ever became vested in the plaintiffs. The bill then sets up the long possession of the plaintiffs and their grantors, large outlays by them in improvements upon the land, the practical adandonment of the same by the defendant, all of which, it is claimed, constitute an estoppel in pais. Plaintiffs also rely upon the laches of Wehrman in bringing the action in ejectment, and allege a failure to bring his suit within the period prescribed by the statute of limitations. It is entirely clear that, if no action in ejectment had been begun at law, the long-continued adverse possession of the plaintiffs, and the equitable title set up in the bill, would have been a sufficient basis for the maintenance of the suit; and it is not easy to see why the commencement of such action should place them in a worse position than they were in before or oust them of their remedy in equity. If the only contest in this case were as to whether the legal title to these lands was in the plaintiffs or defendant, it may be that a court of law would be the only proper forum for the settlement of this dispute; but the plaintiffs further claim that, by reason of certain defects in the proceedings by which they acquired title, such title is doubtful at law; but that the long delay of the plaintiff at law in the assertion of his rights, establishes a defence of laches, and his failure to set up his title, and his long acquiescence in the Conklins’ possession of the lands, estop him from proceeding either at law or in equity to oust them. It is scarcely necessary to say that complainants cannot avail themselves as a matter of law of the laches of the plaintiff in the ejectment suit. Though a good defence in equity, laches is no defence at law. If the plaintiff at law has brought his action within the period fixed by the statute of limitations, no court can deprive him of his right to proceed. If the statute limits him to twenty years, and he brings his action after the lapse of nineteen years and eleven months, he is as much entitled as matter of law to maintain it, as though he had brought it the day after his cause of action accrued, though such delay may properly be considered by the jury in connec- WEHRMAN v. CONKLIN. 327 Opinion of the Court. tion with other facts tending to show an estoppel. As was said by Chancellor Green in Homer v. Jobs, 2 Beasley, (13 N. J. Eq.,) 19, 23 : “Nor can the staleness of the claim, or the lapse of time, or the statute of limitations, avail the complainant. The defendant is asking no relief at the hands of this court. He was seeking to enforce his legal rights in a court of law. The complainant is here asking the aid of this court. It is the claim of the complainant, not the title of the defendant, to which the equitable defence of a stale claim is applicable. No lapse of time can avail the complainant, unless it be a part of the defendant’s title under the statute of limitations. This defence will avail the defendant at law as well as in equity, and constitutes no ground for enjoining proceedings at law.” Had Wehrman seen fit to resort to a court of equity in assertion of his rights, undoubtedly the defendants to such suit might have interposed the defence of laches, but it is quite a different question whether it could be made the basis of a bill. It may, however, be considered as one of the facts of the case tending to show an estoppel. Undoubtedly the facts set forth in this bill are such as tend to show an equitable estoppel on the part of Wehrman, and this court did hold in a very carefully considered opinion in Dickerson n. Colgrove, 100 U. S. 578, that an estoppel in pais was an available defence to an action at law. This case was cited and applied in Baker v. Humphrey, 101 U. S. 494; in Kirk v. Hamilton, 102 U. S. 68; and in Drexel v. Berney, 122 U. S. 241; although, in the last case, the bill was supported upon the ground that a resort to a court of equity in the particular case was necessary in order to make the estoppel available. As was said by Mr. Justice Matthews: “ All that can properly be said is, that in order to justify a resort to a court of equity, it is necessary to show some ground of equity other than the estoppel itself, whereby the party entitled to the benefit of it is prevented from making it available in a court of law.” To the same effect is Gable v. Wetherholt, 116 Illinois, 313. But even if it be assumed that the facts relied upon as constituting an equitable estoppel in this case might be laid before 328 OCTOBER TERM, 1894. Opinion of the Court. a jury in a common law action, and if established operate as a defence, yet it does not necessarily follow that a bill in equity will not also lie to cancel the outstanding deed from Adolph to Frederick Wehrman as fraudulent, or at least as unavail-able under the peculiar circumstances of the case. There is a class of cases which hold that where there is actual fraud no remedy at law is complete and adequate, except that which removes the fraudulent title. As early as 1750, it was held by Lord Chancellor Hardwicke, in Bennet v. Musgrove, 2 Ves. Sen. 51, that a bill would lie by an execution creditor to set aside a fraudulent conveyance, whether he could recover at law or not. Objection having been made to the bill upon the ground that the remedy at law was complete, the Lord Chancellor observed: “But be it as it may, whether he could recover or not, he is entitled to come into this court; the distinction in this court being, where a subsequent purchaser for valuable consideration would recover the estate, and set aside or get the better of a precedent voluntary conveyance, if that conveyance was fairly made without actual fraud, the court will say, take your remedy at law; but wherever the conveyance is attended with actual fraud, though they might go to law by ejectment, and recover the possession, they may come into this court to set aside that conveyance; which is a distinction between actual and presumed fraud from its being merely a conveyance.” This is still the law in England. Blenkinsopp v. Blenkinsopp, 1 De G., M. & G. 495. The leading case in the Federal courts upon this point is Bean v. Smith, 2 Mason, 252, in which Mr. Justice Story held that, notwithstanding the restrictive clause of the judiciary act, Rev. Stat. § 723, a judgment creditor might file a bill in equity against his debtor to set aside a fraudulent conveyance, since there is not, in the proper sense of the term, a plain, adequate, and complete remedy at law. While, in view of our decisions in Insuramce Company v. Bailey, 13 Wall. 616, and Buzard v. Houston, 119 U. S. 347, there may be a doubt whether this remedy is available in personal actions, the law is well settled that where title to real property is concerned, equity has a concurrent jurisdiction, WEHKMAN v. CONKLIN. 329 Opinion of the Court. because it may not only enjoin an action at law, but may order a cancellation of the fraudulent conveyance, and prohibit the bringing of further suits at law upon the fraudulent title, and thus afford a more complete relief than is possible in a court of law. Dodge v. Griswold, 8 N. H. 425; Tappan v. Evans, 11 N. H. 311; Sheafe v. Sheafe, 40 N. H. 516; Miller v. Scammon, 52 N. H. 609; Traip v. Gould, 15 Maine, (3 Shepley,) 82 ; Cox v. Dunham, 4 Halst. Ch., (8 N. J. Eq.,) 594; Sheppard v. Iverson, 12 Alabama, 97 ; Planter^ dec. Dank v. Walker, 1 Alabama, 926 ; Murphy v. Blair, 12 Indiana, 184; Mohawk Bank v. Atwater, 2 Paige, 54; 2 Pom. Eq. Juris. § 1415. When analyzed, the bill under consideration is really in the nature of a judgment creditor’s bill filed by the plaintiffs, who claim that they have acquired, by successive assignments from the original creditors, a lien upon certain lands which the debtor has conveyed in fraud of the original creditors. There are also, it is true, the additional reasons that the plaintiffs have long been in possession of the land; that the records of the case, through which the original purchaser at the execution sale claimed to have acquired the legal title to the lands, have been lost, and that their title, though perfectly good in equity, may be technically insufficient at law. In such case they have a right to call upon a court of equity for relief against such defects. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 449; Stone v. Anderson, 6 Foster, (26 N. H.,) 506; Conroy v. Woods, 13 California, 626; Robert v. Hodges, 16 N. J. Eq. (1 C. E. Green) 299. 2. Upon the merits, the case presents no difficulty whatever. We do not find it necessary to examine in detail the several defects, which are claimed to invalidate the proceedings under which Greeley finally became the purchaser of the land in question, since we are all of the opinion that the plaintiffs are entitled to a decree, whether these proceedings vested a legal title in Greeley or not. Greeley, Gale & Co. had a legal claim against Adolph Wehrman upon a judgment lawfully obtained against him in Wisconsin. Upon the basis of this judgment they brought suit against him in Iowa, sued out a writ of attachment, and levied it upon the lands in question. 330 OCTOBER TERM, 1894. Opinion of the Court. Admitting that the writ was not impressed with such a seal as the law required, it was not, under the circumstances, void upon that ground. O’Brien County was not organized as an independent county until February 6, 1860. The writ was issued January 14, 1861. The county offices being evidently not yet in a complete working condition, the clerk affixed an ordinary private seal or scroll to the writ, with a statement that no seal had yet been procured. Granting that a failure to use an engraved seal actually provided would avoid the writ, certainly the clerk was entitled to a reasonable time to procure such seal. In the meantime, however, the rights of suitors and of the public ought not to be prejudiced by the lack of one. The whole civil and criminal business of the county ought not to come to a stop simply through the failure of its officers to provide it with a seal. As was justly observed by the learned judge of the Circuit Court: “ The only purpose of the seal is to authenticate the issuance of the writ. May not such authentication be furnished in other ways, if for any reason the court is without an engraved seal for a time ? Suppose that to-day the engraved seal of O’Brien County should be destroyed or stolen, must all the judicial proceedings therein be brought to a standstill, awaiting the procurement of another engraved seal? Would not this be subverting substance to mere form ? Would it not be permissible for the court to continue the issuance of writs of attachment and execution, having attached thereto a scroll as a seal, the writ on its face showing the reason thereof ? ” While the clerk does not seem to have used any great diligence in procuring a seal, his laches in that particular cannot be made the subject of inquiry here. The fact that no engraved seal had been procured is a sufficient excuse for the purpose of the case. The sheriff, by virtue of this writ, made a levy upon the lands in question, endorsed such levy upon the writ, and caused personal notice to be served upon the defendant Wehrman in the State of Wisconsin, January 25, 1861. It is also true that the petition for the attachment described the judgment sued upon as having been rendered on May 12, WEHRMAN v. CONKLIN. 331 Opinion of the Court. 1860, when in fact it was not rendered until September 12; that the writ was made returnable upon a day which had not been fixed as the first day of the next term of the court, though it was subsequently fixed upon that day; and that, in changing the venue of the action to Woodbury County, the transcript of the record was sent to such county without being certified by the seal of the court in which the suit was brought. While these might have been good defences to the action, if seasonably interposed, they do not render the writ and all the proceedings thereunder void. Indeed, it is at least doubtful whether, if no notice at all had been served upon Wehrman, the lien of the attachment would have thereby been lost. The object of the notice is to apprise the defendant of the commencement of the suit, and to call him in to defend and prevent the plaintiff from obtaining judgment if he can. The object of the writ, which is issued ex parte, is to enable the plaintiff to obtain a lien upon the land, which may be subsequently enforced by a sale upon execution, if judgment be obtained. If notice were actually served upon the defendant in Wisconsin, as claimed, it is difficult to see why the judgment subsequently entered up was not valid as against the land attached, though of course not against the defendant in personam. Whether the subsequent proceeding by bill to set aside the deed from Adolph to Frederick Wehrman was invalid or not, it is unnecessary to inquire. The attachment and subsequent long continued possession thereunder vested an interest in the present plaintiffs which was amply sufficient as a basis for this bill. If, as is claimed, the decree in the chancery court was void because no personal service was obtained upon defendant Wehrman within the State of Iowa, there is greater reason why jurisdiction of the present bill should not be declined, since the object of this bill is practically the same as the other, viz., to obtain the benefit of the attachment proceedings. If personal service were obtained in the State of Wisconsin, we see no objection to the decree as rendered, since the Code of Iowa, sections 2831 and 2835, permit personal service or service by publication upon defendants out of the jurisdiction “ in an action for the sale of real property under 332 OCTOBER TERM, 1894. Opinion of the Court. a mortgage lien or other incumbrance or charge; ” and such statutes have been upheld by this court. Arndt v. Griggs, 134 U. S. 316. If no proper service were obtained, then we are able to do in this suit what was ineffectually attempted there. The salient and decisive facts of this case are that Greeley, Gale & Co. obtained, or at least attempted to obtain, a lien upon this land by virtue of their attachment; that personal service of such proceeding was made upon Adolph. Wehrman in the State of Wisconsin, January 25, 1861; that they went through the form of obtaining a judgment against these lands, and selling them upon execution; that Greeley purchased these lands upon such sale, paid taxes thereon, acquired tax titles thereto, and subsequently sold the same, and that plaintiffs in this suit became the purchasers; that they immediately took possession of the same; and that they and their grantors have been in open, notorious, and undisturbed possession for twenty-seven years; have built a house and other buildings, and made other improvements thereon; that Frederick Wehrman, the defendant herein, took title to these lands December 17, 1859, the very day that suit was originally begun against Adolph ; that the deed was made to him under circumstances fending strongly to show that it was intended as a fraud upon the creditors of Adolph Wehrman; that he took no steps to assert his title or right of possession to these lands, but practically abandoned the same until, by the increase of population and the settlement of the country, they had become of material value. Whether he had actual notice of the chancery suit or not, it is highly improbable that if he had been a bona, fide purchaser of these lands, lying in another State, for which he had paid, or agreed to pay, $3000, (almost double their actual value,) he would have taken no steps for nearly thirty years to assert his right thereto. Particularly is this so in view of the fact that he was only an ordinary day laborer at the time he took the deed, having only a few farming implements and a meagre supply of household goods, and, as one of the witnesses expressed it, could not have borrowed without security one-tenth of the sum he was purported to have paid for the property. PENNSYLVANIA RAILROAD CO. v. JONES. 333 Syllabus. Evidently he was not a man to invest $3000 in wild lands and turn his back upon them for twenty-seven years. As was said by this court in Underwood v. Dugan, 139 U. S. 380, 384, “ ownership of property implies two things — first, attention to it; second, a discharge of all obligations, of taxation or otherwise, to the State which protects it. When it appears that one who now asserts a title to property, arising more than the lifetime of a generation ago, has during all these years neglected the property, and made no claim of title thereto, a reasonable presumption is that, whatever may be apparent on the face of the instrument supposed to create the title, were the full facts known, facts which cannot now be known by reason of the death of the parties to the transaction, it would be disclosed that no title was in fact obtained; or, if that be not true, that he considered the property of such little value that he abandoned it to the State which was protecting it.” Considering all the facts of this case, it is not a matter of surprise that, when charged in this bill with having received his deed without consideration, and with intent to defraud the creditors of his brother Adolph, the defendant should not have been called to testify in relation to the transaction. In short, it would be difficult to conceive of a clearer case of estoppel in pais. The decree of the court is therefore Affirmed. PENNSYLVANIA RAILROAD COMPANY v. JONES. PENNSYLVANIA RAILROAD COMPANY v. STEWART. error to THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Nos. 40, 41. Argued October 26, 29, 1894.—Decided December 10, 1894. It is the duty of a railroad company, running its trains in connection with other lines, and taking passengers and freight for transportation to points upon connecting lines, to carry them safely to the end of its own 334 OCTOBER TERM, 1894. Counsel for Parties. line, and there deliver them to the next carrier in the route beyond, and, in the absence of a special agreement to extend its liability beyond its own lines, such liability will not attach ; and such agreement will not be inferred from doubtful expressions or loose language, but it must be established by clear and satisfactory evidence. The evidence in this case is reviewed, and it is held not to establish a special undertaking by the Pennsylvania Railroad Company that the plaintiffs should be safely carried in the train of the Virginia Midland Railway Company, while proceeding along the road of the Alexandria and Washington Railroad Company, between the cities of Alexandria and Washington; but that there was evidence which would warrant a jury in finding that the Baltimore and Potomac Railroad Company, the Alexandria and Washington Railroad Company, and the Alexandria and Fredericksburg Railway Company had made such a special undertaking, and were jointly liable to the plaintiffs under it. An advertisement by a railroad company that it runs or connects with trains of another company, so as to form through lines, without breaking bulk or transferring passengers, does not tend to show a contract between the companies to share profits and losses. When a railroad for which a receiver has been appointed is practically managed and controlled by the agents and employés of the company, and the receiver’s function as to business with connecting lines is restricted to the receipt of its share of the net earnings, and a passenger who receives an injury while being transported upon it to a connecting line, brings an action against the company and other connecting lines to recover damages therefor, there is no error in instructing the jury that if they shall find the company guilty of negligence their verdict will be against it. In this case the Alexandria and Fredericksburg Railway Company further set up that at the time of the happening of the injury causing the damages sued for, the road was in the hands of mortgage trustees, and that it therefore was not then a common carrier. Held, there was evidence which justified the court in submitting the question of the exclusive possession by the trustees to the jury, and that there was no error in instructing the jury that in order to acquit the company from responsibility, it should be shown that the management and operation of the road was conducted by the trustees, to the entire exclusion of the company, its officers and board of directors, and' that this fact was notorious and qould be presumed to be known to the public. The case is stated in the opinion. Mr. Enoch Totten for plaintiffs in error. Mr. W. L. Cole and Mr. William A. Cook for defendants in error. PENNSYLVANIA RAILROAD CO. v. JONES. 335 Opinion of the Court. Mb. Justice Shibas delivered the opinion of the court. These were suits brought in the Supreme Court of the District of Columbia, and tried at special term, in July, 1885, based upon allegations of personal injuries received by the plaintiffs while in the performance of their duties as railway postal clerks on the mail route which extended from Charlotte, N. C., to "Washington, D. C. The cases were tried together, and each of the plaintiffs obtained a. verdict and judgment, entered May 3,1890, against all of the defendants except the Virginia Midland Railway Company. The other defendants, namely, the Pennsylvania Railroad Company, the Baltimore and Potomac Railroad Company, the Alexandria and Fredericksburg Railway Company, and the Alexandria and Washington Railroad Company, appealed to said court in general term, where the judgment of the special term was affirmed, and afterwards they caused the cases to be brought here on writs of error. The undisputed facts in the cases are substantially as follows: About four miles from Washington, at a place known as Four-mile Run, the tracks of the Alexandria and Washington railroad were laid through a short tunnel or culvert under a canal. This culvert was not of sufficient width to permit trains to pass each other therein, and the double tracks, which extended over the whole line, closely interlaced in the culvert, and for a short distance from each end thereof, but each track remained practically unbroken and independent, so that in passing this point it was not necessary that a train on either track should stop, provided no other train was upon or about to be upon this portion of the road where the tracks converged. In or near this culvert, at about 10 o’clock on the night of the 19th of February, 1885, while the plaintiffs were engaged in the performance of their duties as postal clerks in a car attached to a north-bound passenger train of the Virginia Midland Railway Company, a collision occurred upon the interlaced tracks, between that train and a fast-freight train of the Alexandria and Fredericksburg Railway Company, bound south, which resulted in the death of four persons and in serious injuries to each of the plaintiffs. 336 OCTOBER TERM, 1894. Opinion of the Court. The essential allegations of both declarations filed by the plaintiffs were that all of the defendant companies were en gaged, as common carriers, in the transportation of passengers, persons, and freight upon and along the several lines of the railroads belonging to them, and along the line, among others, of the Alexandria and Washington Railroad Company, under an arrangement or contract for their common benefit, by which they were interested jointly in the running and management of their roads, and that through the negligence of the defendant companies the collision occurred which, caused the injuries complained of. The defendants all appeared to the action and severally put in pleas of not guilty, and afterwards, upon leave granted by the court, each company filed an additional plea averring that “ it was not at the time of the alleged injury and never was a common carrier of passengers and freight in manner and form as in said declaration alleged.” A large amount of evidence was put in on behalf of the plaintiffs for the purpose of sustaining their allegations of negligence on the part of employés of one or more of the defendant companies, and to show that the roads owned by those companies were operated in connection with each other on joint account, or that there was such community of interests among them as would make all of them liable for the acts of agents or employés of one. The Virginia Midland Railway Company introduced evidence which tended to prove that its road extended no farther north than Alexandria, and that its trains were run over the roads of the other companies under an arraftgement by which it paid certain prices per passenger and per ton of freight for the running privileges given it, and by which it was required to admit on board its north-bound trains at Alexandria an agent of the company or companies which controlled the road north of that place, who had therefrom the exclusive direction of the trains. It appeared, however, that although such agent was on the passenger train in question, employés of the Virginia Midland Railway Company performed the actual work of controlling the train, PENNSYLVANIA RAILROAD CO. v. JONES. 337 Opinion of the Court. The evidence on the part of the other defendants was directed mainly to showing that at the time of the collision the road of the Alexandria and Washington Railroad Company and the franchises necessary for its operation were in the hands of a receiver, appointed by the Circuit Court of the United States for the Eastern District of Virginia ; that the company had no rolling stock, but that the receiver permitted other roads to use its tracks under certain agreements which had been made between that company and other companies before his appointment ; and that the business of the Alexandria and Fredericksburg Railway Company was being carried on by trustees who were possessed of the property and franchises of this company by virtue of a deed of trust executed by it on June 1,1866, to secure the payment of the principal and interest of certain of its first-mortgage bonds. Many exceptions were taken by the defendants during the trial to the admission and rejection of evidence, to the refusal of the court to give the jury certain instructions proposed by them, and to the giving of other instructions against their objections. These exceptions constitute the grounds of the assignments of error. The suits were brought against the Pennsylvania Railroad Company, a corporation organized under the laws of the State of Pennsylvania ; the Baltimore and Potomac Railroad Company, a corporation organized under the laws of the State of Maryland and acts of the Congress of the United States ; the Alexandria and Washington Railroad Company, the Virginia Midland Railway Company, and the Alexandria and Fredericksburg Railway Company, which three last-mentioned companies were corporations organized under the laws of the State of Virginia. The theory upon which the plaintiffs proceeded, in including these five companies in the actions, was thus expressed in the declarations : “For that heretofore, to wit, on the 19th day of February, 1885, and prior thereto, the said defendants were engaged as common carriers in the transportation of passengers, persons, and freight upon and along the several lines of railroad be- voj.. clv—2? 338 OCTOBER TERM, 1894. Opinion of the Court. longing to said companies, and, among others, along the line of the road of the said Alexandria and Washington Railroad Company, running between the cities of Alexandria and Washington, under an arrangement or contract for their common benefit, the full and exact terms of which are unknown to this plaintiff, and by which they were jointly interested in the running and management of the said railroads.” The Pennsylvania Railroad Company filed a plea of not guilty, and a special plea that said company “ was not, at the time of the alleged injury, and never was, a common carrier of passengers and freight, in manner and form as in said declaration alleged.” After the testimony was closed on both sides the counsel of the Pennsylvania Railroad Company moved the court to instruct the jury that, upon the pleadings and evidence, the said company was entitled to a verdict in its favor. To the refusal of the court to grant such instruction, exception was duly taken, and that action of the court is here assigned for error. As it is not pretended that there was not evidence sufficient to warrant the jury in finding that the plaintiffs’ injuries were caused by carelessness in the management of one or both of the trains, our inquiry must be directed to the other issue, that is, whether it was shown, by competent evidence, that the Pennsylvania Railroad Company was engaged, at the time of the accident, as a common carrier in the transportation of freight and passengers along the line of the road of the Alexandria and Washington Railroad Company, running between the cities of Alexandria and Washington, under an arrangement or contract with the other companies defendant for their common benefit, and by which they were jointly interested in the running and management of said railroad. It is conceded, or sufficiently appears in the evidence, that the running and management of the road of the Alexandria and Washington Railroad Company were not within the scope of the ordinary powers of the Pennsylvania Railroad Company as a corporation of the State of Pennsylvania. To render the latter company responsible for what might take place on a PENNSYLVANIA RAILROAD CO. v. JONES. 339 Opinion of the Court. railroad in another State some contract or arrangement to that effect must be made to appear. It is also disclosed by the evidence that neither of the trains, by whose mismanagement the accident was caused, was a train belonging to the Pennsylvania Railroad Company, and that the men in charge were not in the immediate employ of that company. The general principles applicable to the present inquiry are well settled, and have frequently been declared by this court. In Railroad Co. v. Manufacturing Co., 16 Wall. 318, 324, it was said: “ It is the duty of the carrier, in the absence of any special contract, to carry safely to the end of his line and to deliver to the next carrier in the route beyond. This rule of liability is adopted generally by the courts in this country,” and “is in itself so just and reasonable that we do not hesitate to give it our sanction.” And in Railroad Co. v. Pratt, 22 Wall. 123, 129, it was said: “ The fair result of the American cases limits the carrier’s liability as such, when no special contract is made, to his own line.” These cases were followed in Myrick v. Michigan Central Railroad Co., 107 U. S. 102, 107, and it was there said: “ In the absence of a special agreement to extend the carrier’s liability beyond his own route, such liability will not attach, and the agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence.” Was there shown, then, in the present case, a special contract or undertaking by the Pennsylvania Railroad Company that the plaintiffs should be safely carried in the train of the Virginia Midland Railway Company, while proceeding along the road of the Alexandria and Washington Railroad Company, between the cities of Alexandria and Washington ? There was no attempt to show any such contract or agreement between these plaintiffs and the Pennsylvania Railroad Company. The liability of the latter is sought to be found in an alleged existing agreement between that company and the other companies defendant, whereby the said companies were “ jointly interested in the running and management of said railroads,” 340 OCTOBER TERM, 1894. Opinion of the Court. Moreover, it was not claimed that this alleged agreement was in writing or was to be found in any resolution of the board of the Pennsylvania Kailroad Company. Indeed, the averment of the declaration was that “ the full and exact terms of the alleged contract were unknown to the plaintiffs.” The right of recovery in this case against the Pennsylvania Railroad Company was rested by the plaintiffs entirely upon supposed business relations existing, at the time of the accident, between the railroad companies defendant. It is necessary, therefore, that they should point to evidence satisfactorily establishing the existence and nature of those business relations. A careful consideration of the evidence appearing in the record has failed to satisfy us that there existed a contract or agreement between these railroad companies upon which liability on the part of the Pennsylvania Railroad Company can be based. Let us briefly consider the particulars of the evidence relied on by the plaintiffs. The annual reports to the stockholders of the Pennsylvania Railroad Company were put in evidence. That of March 2, 1885, contained the following statement: “The board herewith submit their report for 1884, with such data relating to the lines controlled by your company as will.give you a clear understanding of their physical and financial condition.” Also the following: “ The Baltimore and Potomac Railroad connects your line with Washington and the South.” And from the report of March, 1886, the following quotation was cited: “ The board herewith submits its report for the year 1885, with such data as relate to the lines embraced in your system as will give you a clear understanding of their physical and financial condition.” It was also shown by said report that the Pennsylvania Railroad Company owned, on December 31, 1885, $1,000,000 of the bonds of the Alexandria and Fredericksburg Railway Company, and $2,000,000 of the bonds of the Baltimore and Potomac Railroad Company, and 60,852 shares of the Balti- PENNSYLVANIA BAILROAD CO. v. JONES. 341 Opinion of the Court. more and Potomac Bailroad Company’s stock, and 217,819 shares of the stock of the Philadelphia, Wilmington and Baltimore Bailroad Company. A railroad map showing a continuous line of railroad between Philadelphia and Quantico, with letters signifying that the roads embraced therein were the Philadelphia, Wilmington and Baltimore, the Baltimore and Potomac, the Alexandria and Washington, and the Alexandria and Fredericksburg Companies, was put in evidence. It was also proved that a ticket issued by the Pennsylvania Railroad Company was sold in Baltimore, at the office of the Northern Central Bailroad Company, on account of the Alexandria and Fredericksburg Bail way Company, and it was likewise proved that the Pennsylvania Bailroad Company owned stock in the Alexandria and Washington and the Alexandria and Fredericksburg Bailway Companies, and that some persons who were officers of the Pennsylvania Bailroad Company were likewise officers of these companies. It was also shown that the employes of the Baltimore and Potomac, the Alexandria and Washington, and the Alexandria and Fredericksburg roads were paid from a pay-car, whose brakeman and conductor wore a blue uniform with silver buttons, which was said to be the uniform of the Pennsylvania Bailroad Company. Newspaper advertisements were put in evidence, calling the attention of the travelling public to the Great Pennsylvania Route to the Northwest and the Southwest, and it was shown that James B. Wood was general passenger agent, and Charles E. Pugh general manager, of the Pennsylvania Bailroad Company, stationed at Washington; and it likewise appeared that they occupied similar positions in the Philadelphia, Wilmington and Baltimore, the Baltimore and Potomac, Alexandria and Washington, and the Alexandria and Fredericksburg companies. John S. Barbour testified that he had acted for some years as president and receiver of the Virginia Midland Bailway Company, his official relations with that company ceasing in the latter part of 1884. His testimony was to the effect that he had made arrangements for the running of the trains of the 342 OCTOBER TERM, 1894. Opinion of the Court. Midland Railway Company over the road between Alexandria and Washington. He says that there was no contract ever signed, but that his conversations were with officers of the Pennsylvania Railroad Company, particularly naming Mr. Scott and Mr. Roberts, the latter being president of both the Pennsylvania Railroad Company and the Alexandria and Fredericksburg Railway Company; that the Pennsylvania authorities were running the Baltimore and Potomac, and a through line from New York to Quantico; that the Midland Railway Company was to pay 35 cents for each passenger and so much on freight for each carload or by the ton ; that the Midland Railway Company used their own rolling stock and crews. He further stated that he would not say to whom or to what companies his company paid compensation for the use of the road, and that his recollection of the details of the agreement was indistinct, as it was made in 1876. On cross-examination he stated that his company settled accounts with the officers of the Baltimore and Potomac Railroad Company or those of the Alexandria and Fredericksburg Railway Company. The plaintiffs further gave evidence to show that on the arrivals of the trains of the Virginia Midland Railway Company at Alexandria they were turned over to the authorities operating said roads between that place and Washington, and run between those two points both ways under the absolute control of the last-named parties, who had the right to and did place a pilot in charge of said trains to run the same between those points ; that said pilots were sometimes employés of the Baltimore and Potomac Railroad Company, and sometimes of the Alexandria and Fredericksburg Railway Company ; that all other persons engaged in running said Virginia Midland trains were employés of the last-named company ; that the pilot who took charge of the Virginia Midland train on which plaintiffs were, on the 19th day of February, 1885, when it arrived at Alexandria, and under whose direction and control it was at the time and place of the accident, was Charles F. Bennett, whose uniform was such as is worn by the employés of the Pennsylvania Railroad Company, except that on the buttons were the letters “ B & P,” and whose name PENNSYLVANIA RAILROAD CO. v. JONES. 343 Opinion of the Court. was on the pay-rolls of, and he was paid by, the Alexandria and Fredericksburg Railway Company. In connection with the foregoing there was evidence, proceeding partly from both parties, tending to show that the mails over said route between Alexandria and Washington were carried, not under any express contract, but under the general statutes, and the arrangement of the government for carrying all mails, either through or local, between Washington and Alexandria, was with the Alexandria and Washington Railroad Company, and that road was paid for transporting for the quarter beginning January 1 and ending March 31, 1885, by drafts or checks, and that no other railroad was paid by the United States for conveying mails between said points; that said sum so paid was divided among the Alexandria and Washington, Alexandria and Fredericksburg, and the Baltimore and Potomac Railroad Companies; that about the time of said collision, and for some time prior thereto, both freight and passenger trains passed over the road between Alexandria and Washington, some of them hauled by engines marked B. and P., some of them marked A. and F., and some passenger trains marked B. and P.; that the compensation paid by the Virginia Midland Railway Company for the privilege of running its trains between Washington and Alexandria was 35 cents per passenger and $4 per carload of freight, which was paid by it periodically to J. S. Lieb, the treasurer of the Alexandria and Washington, Alexandria and Fredericksburg, and Baltimore and Potomac Railroad Companies. The plaintiffs further showed that the Pennsylvania Railroad Company paid consignees for goods destroyed in the collision, and then made demand upon Wilkins, the receiver of the Alexandria and Washington Railroad Company, for reimbursement, and claimed this fact as admission that the Pennsylvania Railroad Company was a common carrier of these goods at the time and place of destruction. The foregoing is a condensed statement of the evidence relied on as establishing such a relation between the railroad companies, owning the roads and managing the trains at the 344 OCTOBER TERM, 1894. Opinion of the Court. time and place of collision, and the Pennsylvania Railroad Company, as to make the latter responsible to the plaintiffs for their injuries. Some of this evidence was objected to by the counsel of the Pennsylvania Railroad Company as incompetent for the purpose for which it was offered. But we do not deem it necessary to critically examine these objections. Taking the plaintiffs’ evidence as a whole, and supplementing it with such facts, favorable to them, as appear in the defendants’ evidence, we are unable to see that a case was made out as against the Pennsylvania Railroad Company. That the Pennsylvania Railroad Company owned stock and bonds of some of the other companies defendant did not tend to show a partnership or agreement to run the roads of the latter on common account. Such ownership rather went to explain why some of the officers of the Pennsylvania Railroad Company held official positions in the other companies, and to show why their officers were consulted about the arrangement made between the Alexandria and Washington, the Alexandria and Fredericksburg, the Baltimore and Potomac Railroad Companies, and the Virginia Midland Railway Company, for the use by the latter of the roads of the former between the cities of Alexandria and Washington, as testified to by J. S. Barbour, and also explains the references made in the reports of the Pennsylvania Railroad Company to these roads as connecting with their system. That the Pennsylvania Railroad Company paid consignees for goods destroyed in the collision, may justify an inference that there was some agreement between the owners of the goods and the Pennsylvania Railroad Company that the latter should be responsible for the goods beyond their own line, but, in that event, the responsibility arose out of such contract, and not out of a contract between the railroad companies. It was, indeed, contended that the act of the Pennsylvania Railroad Company in demanding reimbursement from the Alexandria and Washington Railroad Company for a proportion of such payment is indicative of an existing arrangement between the companies for dividing such losses. PENNSYLVANIA RAILROAD CO. v. JONES. 345 Opinion of the Court. But an examination of the evidence, in this particular, plainly shows that, though the words “ proportion due ” appear at the head of the column stating the amount demanded, yet that the actual demand was for the entire loss, and not for a part or proportion thereof. Such a demand, therefore, is evidence that no agreement existed for a participation in losses. That the Pennsylvania Railroad Company advertised that it ran trains, or connected with trains of other companies, so as to form through lines, without breaking bulk or transferring passengers, did not tend to show any contract or agreement between the companies to share profits and losses. Nor was there evidence, in the present case, that there was any actual participation by the Pennsylvania Railroad Company in the earnings of the other companies which used the road between the cities of Alexandria and Washington. On the contrary, the evidence affirmatively showed that such earnings, including what was paid by the United States for the transportation of mails, were divided between the other companies, and went, none of them, to the Pennsylvania Railroad Company. Without dwelling longer on this feature of the case, our conclusion is, that the Pennsylvania Railroad Company was entitled to the peremptory instruction asked for in its favor. Our views respecting the exceptions urged on behalf of the other plaintiffs in error are briefly expressed as follows: There was evidence from which the jury might properly infer that the railroad between the cities of Alexandria and Washington was managed and controlled for the common use of the Baltimore and Potomac Railroad Company, (owning that portion of the route that lies between Washington and the south end of the Long Bridge,) the Alexandria and Washington Railroad Company, (owning that portion between the south end of the Long Bridge and St. Asaph’s Junction,) and the Alexandria and Fredericksburg Railway Company (owning the line between St. Asaph’s Junction and Alexandria); that the gross earnings of these companies, derived from this line between Alexandria and Washington, including what the Virginia Midland Railway Company paid for the privilege of running its trains over these tracks and what was received for transportation of mails, 346 OCTOBER TERM, 1894. Opinion of the Court. went into the hands of a common treasurer, and were by him, after paying operating expenses, divided among the three companies, according to some rule, not very definitely shown, but apparently in proportion to the miles of track of each road; that the operating and accounting officers of the three companies were the same; that the freight train in question was, at the time of the collision, on that portion of the road which belonged to the Alexandria and Washington Railroad Company; that the engineer and fireman were employes of the Baltimore and Potomac Railroad Company; that the engine was that of the Alexandria and Fredericksburg Railway Company; that the conductor and brakemen were employes of that company; and that the passenger train was in charge of a pilot employed and paid by the three companies, in pursuance of an arrangement to that effect. Such a state of facts would, we think, warrant a finding of joint liability of these three companies to the plaintiffs, unless certain facts put in evidence by the Alexandria and Washington Railroad Company and by the Alexandria and Fredericksburg Railway Company exonerate them respectively from such liability. The Alexandria and Washington Railroad Company filed a plea of not guilty, and likewise a plea denying that said company was, at the time of the alleged injury, a common carrier of passengers and freight in manner and form as in the declaration alleged. In support of the issues thus formed, the Alexandria and Washington Railroad Company put in evidence a record of the Circuit Court of the United States for the Eastern District of Virginia, showing that in a suit of Alexander Hay against said company, on January 19, 1882, George C. Wilkins was appointed receiver of said company, and was directed, after giving bond, to take possession of the railroad, tracks, engines, and property, real and personal, to the company belonging, and to run and operate said railroad for the carriage of freight and passengers, and to make from time to time all needful and proper traffic arrangements with other roads for the exchange of business; and it was further thereby ordered that PENNSYLVANIA RAILROAD CO. v. JONES. 347 Opinion of the Court. said receiver should, as soon as may be, make and file with the clerk of the court an inventory of all the real and personal property that came into his possession as receiver. The said defendant further gave evidence tending to show that said receiver, on the 19th day of June, 1882, took possession of said railroad in pursuance of said decree, and had exclusively held possession and operated and maintained said railroad until after the 19th day of February, 1885 ; that the inventory of property received by him, which was put in evidence, disclosed, among other things, a single track from Duke Street in Alexandria to St. Asaph’s Junction, and a double track from the said junction to the south end of the Long Bridge, with sidings, bridges, etc. The evidence further tended to show that said company had no cars, engines, or rolling stock when the receiver took possession, and that none was acquired afterwards; that the receiver made all his returns of money received to the said Circuit Court, and that such moneys were carried through certain arrangements existing with the Baltimore and Potomac Bailroad Company, the Virginia Midland Railway Company, and with DuBarry and Green, trustees of the Alexandria and Fredericksburg Bail way Company; that under this arrangement the gross receipts of the operation of the route between Alexandria and Washington went into the hands of J. S. Lieb, treasurer, and through a common auditor the net proceeds were distributed pro rata, and to the receiver was paid the pro rata share of the Alexandria and Washington road. Thereupon the Alexandria and Washington Bailroad Company moved the court to instruct the jury that said company was, upon the pleadings and evidence, entitled to a verdict in its favor, and also moved the court to instruct the jury that if they were satisfied from the evidence that all the property of the Alexandria and Washington Bailroad Company was, at the time of the accident, in the exclusive control of George C. Wilkins, the receiver thereof, appointed by the Circuit Court of the United States, the verdict must be in favor of the Alexandria and Washington Bailroad Company. Both these prayers for instructions were refused by the court, 348 OCTOBER TERM, 1894. Opinion of the Court. and the case was submitted to the jury under instructions, whose validity is brought before us by the bills of exception. The plaintiffs, to overcome this evidence on behalf of the Alexandria and Washington Railroad Company, put in evidence a report made to the board of public works of the State of Virginia, signed and sworn to by John S. Lieb, treasurer, and H. H. Carter, superintendent of the Alexandria and Washington Railroad Company, for the year 1885. In this report nothing is said about an existing receivership, and there are statements of expenses in repairing engines and tenders, and in paying conductors, engineers, and firemen. It was also shown that at a meeting of the board of directors of the Alexandria and Washington Railroad Company, held in Philadelphia on November 27, 1876, John S. Lieb was appointed agent to receive and receipt for moneys due or to become due the company for transportation of mails between Washington and Alexandria; and that the warrants on the United States Treasury, in payment for carrying the mail between Alexandria and Washington for the quarter ending March 31, 1885, were made payable to the order of John S. Lieb, agent of the Alexandria and Washington Railroad Company. It also was made to appear, by the testimony of Wilkins, the receiver, that he did not make the arrangement by which the trains of the Virginia Midland Railway Company, of the Alexandria and Fredericksburg Railway Company, and of the Baltimore and Potomac Railroad Company ran over the road of the Alexandria and Washington Railroad Company, but that he found an arrangement under which this was done when he was appointed, and he permitted it to continue ; that he sold no tickets over the Alexandria and Washington railroad; that the Alexandria and Washington railroad had no rolling stock or employés in his employment or control as receiver; that he did not know which of the said companies, the Alexandria and Fredericksburg, furnished the rolling stock and employés to run the local trains over the Alexandria and Washington railroad while he was receiver. Upon the issue thus formed by the pleadings and evidence, the court below instructed the jury as follows : PENNSYLVANIA RAILROAD CO. v. JONES. 349 Opinion of the Court. “The Alexandria and Washington Railroad Company makes the plea that it was not a common carrier on the road at the time and place of the accident in question, because, they say, the road between Alexandria and Washington was at the time under the control of a receiver theretofore duly appointed. It is not disputed that Mr. Wilkins had been appointed receiver, and held his office at the time of the accident. The question now is whether he alone is liable for injuries received on the road by reason of negligence, or whether the Alexandria and Washington Railroad Company is not liable, notwithstanding the receivership. “If you find from the evidence that the Alexandria and Washington Railroad- Company was carrying the United States mail between Alexandria and Washington, and the plaintiffs were in charge thereof as postal clerks, duly commissioned and designated by the United States for that duty, and the Alexandria and Washington Railroad Company was paid by the United States by drafts payable to the order of the agent of that company appointed by its board of directors to receive the same, and that the freight and passenger trains, which collided and caused the injury to the plaintiffs, were running over said road under an arrangement made by the parties in control of said road prior to the appointment of the receiver of said road, and if when the receiver was appointed he continued in office as superintendent, general manager, and treasurer, the same persons as had heretofore discharged the duties of these positions, and if the business of this railroad, so far as was known to the public, was continued in the same way, so far as the general public could know, as before, and was so conducted at the time of the accident, and the only substantial duty that the receiver discharged was to receive the net earnins-s of the road from the treasurer and to account therefor to the court by which he was appointed, then if you shall find that the Alexandria and Washington Railroad Company was guilty of negligence, from the evidence and under the instructions of the court, your verdict will be against it, and for the plaintiffs. “But if you are satisfied that the business on the Alex- 350 OCTOBER TERM, 1894. Opinion of the Court. andria and Washington Railroad, so far as the interests of the Alexandria and Washington Railroad Company were concerned, was conducted by the receiver after his appointment, and to the time of the collision, in his own name and in such manner that it could be generally known by the public that he and not the company conducted the business and controlled the road and its management, and that he did so to the entire exclusion of any control or participation by the Alexandria and Washington Railroad Company, its officers and board of directors, then your verdict should be for the Washington and Alexandria Railroad Company.” We do not think that the court erred in admitting evidence tending to show that, practically, the road was managed and controlled by the agents alid employés of the company, and that the receiver’s functions were restricted to the receipt of its share of the net earnings, and, with such evidence before the jury, we do not perceive any substantial error in the instructions given to the jury. It could not be safely said that, in no case, evidence should be received to show that a receiver contented himself with receiving a share of the net earnings of a railroad which he permitted to be managed by the officers and employés of the company owning the road, in connection with those of other companies having a common interest. A similar question was decided by this court in the case of Railroad Company v. Brown, 17 Wall. 445, 450. There a railroad was run on the joint account of lessees on the Virginia end of the road, and of the receiver on the end in the District. A suit was brought against the railroad company by a passenger, who recovered a verdict and judgment. It was urged in this court, in pursuance of exceptions duly taken, that the railroad company was not liable for anything done while the road was operated by the lessees and the receiver, and it was said through Mr. Justice Davis : “ It is the accepted doctrine in this country that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the State by a voluntary surrender of its road into the hands of PENNSYLVANIA RAILROAD CO. u JONES. 351 Opinion of the Court. lessees. The operation of the road by the lessees does not change the relations of the original company to the public. It is argued, however, that this rule is not applicable where the proceeding, instead of being voluntary, is compulsory, as in the case of the transfer of possession to a receiver by a decree of a court of competent jurisdiction. Whether this be so or not, we are not called upon to decide, because it has never been held that the company is relieved from liability unless the possession of the receiver is exclusive, and the servants of the road wholly employed and controlled by him. In this case the possession was not exclusive, nor were the servants subject to the receiver’s order alone. On the contrary, the road was run on the joint account of the lessees and the receiver, and the servants employed and controlled by them jointly. Both were, therefore, alike responsible for the act complained of, and if so, the original company is also responsible, for the servants under such an employment, in legal contemplation, are as much the servants of the company as of the lessees and receiver.” Nor is it apparent that, in the present case, it is at all important to the receiver or to the company whether the one or the other was made nominal defendant. Upon the theory of the plaintiffs’ case that there was a joint liability on the part of the companies defendant for losses incurred in the management of the road, it would seem to make no difference whether the1 share or proportion of the loss chargeable to the Alex andria and Washington railroad is deducted by the common treasurer from the share of the net earnings coming to the receiver, as is now the case, or should be deducted by the latter as part of his expenses, as would have been the case if he, as receiver, had been sued, instead of the company. A special plea was likewise filed by the Alexandria and Fredericksburg Railway Company, claiming immunity, because their railroad was, at the time of the collision, in the possession and control of trustees. Under this plea it was shown that the company, on June 1, 1886, executed a deed of trust to secure payment of the principal and interest of bonds to the amount of one million of 352 OCTOBER TERM, 1894. Opinion of the Court. dollars, and that DuBarry and Green were trustees, under the provisions of said deed and of certain orders of the county court of Alexandria County, in the State of Virginia. There was also evidence given tending to show that the said trustees took possession of said road on December 6, 1872, and all of its property, and held, used, and operated the same up to and beyond the time of the said collision, and that, at the time of said collision, the said Alexandria and Fredericksburg Railway Company had in its possession no cars, engines, or rolling stock, and that the trustees in possession under said deed of trust, as aforesaid, did, in January, 1875, appoint George C. Wilkins superintendent of said Alexandria and Fredericksburg railway and property, and that said Wilkins had exclusive possession and management of the road. On the part of the plaintiffs it was shown that the Alexandria and Fredericksburg Railway Company made a report to the board of public works of the State of Virginia for the year of 1885, sworn to by the president and general superintendent of the company, in which there is no reference to the alleged possession by trustees, but it does contain detailed statements of the property of the company, including cars and engines, and of the number of passengers and tons of freight carried, and of the various expenditures on account of repairs. It was further shown that the engine that hauled the freight train that figured in the collision belonged to the Alexandria and Fredericksburg Railway Company. The Alexandria and Fredericksburg Railway Company requested the court to charge the jury that if they should find that the property of the company was in the exclusive possession and control of the trustees, and that the company did not, by its servants, agents, or otherwise, exercise any authority or control over the road between St. Asaph’s Junction and Alexandria, after the receiver of the Alexandria and Washington Railroad Company took possession of that line, the verdict must be for the Alexandria and Fredericksburg Railway Company. The court instructed the jury as follows: PENNSYLVANIA RAILROAD CO. v. JONES. 353 . Opinion of the Court. “The Alexandria and Fredericksburg Railway Company also pleads that it was not a common carrier on the road when the accident occurred, in addition to the plea of not guilty, and upon this trial it supports this plea by showing that its road, at the time of the accident and for some time before, had been in the possession of trustees, by virtue of the provisions of a deed of trust executed by the company to secure its indebtedness, the condition of which had been broken by the maturity and non-payment of the debt so secured. “In order that the Alexandria and Fredericksburg Company be acquitted- from responsibility for this reason, it should, in any event, appear that, in fact, the business of management and operation of the road was conducted by the trustees to the entire exclusion of the company, its officers, and board of directors, and that this was so notoriously so that the fact may well be presumed to be known to the public. Besides, it should appear that the trustees were not appointed by the procuration or assent of the railroad company, for, if so, the trustees would be as much the agents of the company as of the grantees in the trust deed. The Supreme Court of Appeals of the State of Virginia, in an action brought against the Alexandria and Fredericksburg Railway Company for personal injuries resulting from negligence on the road while in the possession of trustees by virtue of a deed of trust, under conditions precisely similar to those shown in this case, held that ‘no provision is found in the charter of the defendant company, or the general railroad law of Virginia, which will authorize the company to transfer to trustees or to mortgagees, under the deed of trust given as a mere incumbrance and security, the right and legal capacity to step into the shoes of the company, and assume and exercise indefinitely the franchises, rights, and privileges of the company, so as to give the company exemption and immunity from responsibility for all injuries inflicted by the operation of the road by trustees.’ I quote this language for convenience and accuracy, and adopt it, and give it to you as the law in this case. It follows that the Alexandria and VOL. CLV—23 354 OCTOBER TERM, 1894. Syllabus. Fredericksburg Company cannot be excused from liability because of any possession shown in trustees.” An examination of the trust deed discloses a provision that the trustees, in case of default for a period of ninety days, and on the request in writing of the holders of the bonds, might take possession of the railroad and appoint agents to conduct its affairs; and it was claimed that the court might presume that the possession of the trustees, relied on to defeat the suit against the company, was in pursuance of that provision. However this may be, we think that there was evidence which justified the court in submitting the question of the exclusive possession by the trustees to the- jury, and that the instructions given were not erroneous in any substantial particular. The observations already made respecting the similar claim on behalf of the receiver of the Alexandria and Washington Railroad Company are applicable here, but need not be repeated. Judgment of the general term of the Supreme Court of the District of Columbia reversed, and case remanded to that court with directions to set aside the j udgment of the special term, and to permit the plaintiff s to elect to become nonsuit as against the Pennsylvania Railroad Company, and take judgment on the verdict against the other defendants, and, if they do not so elect, then to set aside the verdict and order a new trial generally. LAKE SUPERIOR SHIP CANAL, RAILWAY AND IRON COMPANY v. CUNNINGHAM. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN. No. 49. Argued November 2, 5,1894. — Decided December 10,1894. The grant of public lands to Michigan in the act of June 3, 1856, c. 44, 11 Stat. 21, to aid in the construction of “railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the two last named places to the Wisconsin state line,” was a grant in præsenti, whica upon the filing of the map of definite location, November 30, 185,, LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 355 Syllabus. operated to withdraw the lands from public domain open to settlement by individuals ; and the provision in the act for forfeiture of the grant if the road should not be completed within ten years was a condition subsequent, which could only be enforced by the United States. That act contemplated separate railroads from Ontonagon to the state line and from Marquette to the state line, and was so regarded and treated by the State of Michigan. Prior to the act of March 2,1889, c. 414,25 Stat. 1008, no legislative or judicial proceeding was taken by the United States, looking to a forfeiture of the Ontonagon grant ; no act or resolution was passed by the legislature of Michigan retransferring it to the United States; and the conveyance executed by the Governor of Michigan, August 14, 1870, assuming to formally release it to the United States, was beyond the scope of his powers and void. As general terms in a subsequent Congressional grant are always held not to include lands embraced within the terms of a prior grant, and as by the filing of the map of definite location of the railroad, and the certification of the lands to the State, the lands granted by the act of June 3, 1856, had become identified and separated from the public domain before the passage of the act of March 3, 1865, c. 202, 13 Stat. 519, granting lands to Michigan to aid in the construction of a ship canal, the State acquired no title to such lands through the latter act, and whether they were or were not returned to the United States was not a question of fact, but one of law, depending upon the construction to be given to the resolution of the legislature of Michigan of February 21, 1867. At the time of the passage of the act of March 2, 1889, c. 414, 25 Stat. 1008, forfeiting to the United States the title to the lands granted to Michigan by the act of June .3, 1856, neither the plaintiff nor the defendant had any title to the tract in controversy in this action, but, like other lands within the Ontonagon grant, it belonged to the State of Michigan, subject to forfeiture by the United States ; and, construing that act, it is Held, (1) That § 1 grants nothing to and withdraws nothing from the parties; (2) That the provision in § 2 as to the rights of the Portage Lake Canal Company and the Ontonagon and Brule River Railroad Company means simply that neither forfeiture nor confirmation nor any other provision in the act shall be construed as a final settlement of all the claims of those companies or their grantees; (3) That the provision in § 2 as to prejudicing any right of forfeiture or recovery of the United States should not be construed as denying the confirmation granted by § 3; (4) That the provision in § 2 touching the rights of persons claim- ing adversely to those companies or their assigns under the laws of the United States means that the confirmation to them shall not be taken as an attempt to invalidate any legal or equitable rights as against such companies; (5) That the term “ public land laws ” in § 3 refers to any laws of Con- gress, special or general, by which public land was disposed of; 356 OCTOBER TERM, 1894. Statement of the Case. (6) That the phrase “ where the consideration received therefor is still retained by the government ” is satisfied whenever the conditions of the attempted conveyance have been fully complied with, and apply to a homestead claim as well as to a preemption claim; (7) That the proviso as to “ original cash purchasers ” is not to be taken as implying that the confirmation only extends to cash purchasers, but as also making further limitations as to some of those in whose behalf the confirmation was proposed; (8) That it was the evident intent of Congress that in all cases of con- flict between a selection in aid of the canal grant and the claims of a settler, the confirmation should depend upon the state of things on the 1st of May, 1888; (9) That the words “ homestead claim,” as used in this act, include cases in which the claimant was, on the 1st of May, 1888, in the actual occupation of the land with a view of making a homestead of it, whether he had or had not made a formal application at the local land office; (10) That the defendant in error Cunningham in No. 49, who was on the 1st of May, 1888, in the occupation of the tract claimed by him, was, within the terms of the confirmatory act, a bona fide claimant of a homestead; but the defendant in error Finan in No. 50, not being in such occupation at that date, was not entitled to the benefit of the act. This was an action commenced by the plaintiff in error, plaintiff below, in the Circuit Court of the United States for the Western District of Michigan, on July 17,1888, to recover the possession of the southwest quarter of section 25, township 44 north, range 36 west. Upon the first trial a verdict was returned in favor of the plaintiff. In conformity with the opinion of Mr. Justice Jackson, then Circuit Judge, 44 Fed. Rep. 819, a new trial was granted, which, on July 26, 1890, resulted in a verdict under instructions of the court in favor of the defendant, upon which verdict judgment was rendered. To reverse that judgment this writ of error was brought. The plaintiff claimed title by virtue of certain land grants made by Congress, to the State of Michigan, to aid in the construction of a canal, and a confirmation by an act of Congress of March 2, 1889. The defendant insisted that no title passed by the canal grants because the land had theretofore been granted by Congress to aid in the construction of a railroad ; that he entered upon the land with a view of preemption, and that his right of preemption was confirmed by the same LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 357 Statement of the Case. act of Congress of March 2,1889. The facts in respect to the respective railroad and canal grants are as follows: On June 3, 1856, Congress passed an act, c. 43, 11 Stat. 20, granting to the State of Wisconsin to aid in the construction of a railroad “ from Fond du Lac on Lake Winnebago northerly to the state line ” every alternate section of land designated by odd numbers for six sections in width on each side of the road ; and on the same date it passed another act, c. 44, 11 Stat. 21, making a similar grant to the State of Michigan to aid in the construction of several railroads, among them being “railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the two last named places to the Wisconsin state line.” This grant was in the ordinary form of a grant in prcvsentl, the language being : “ That there be and hereby is granted to the State of Michigan, to aid,” etc. The act also provided in section 1, “that the lands hereby granted shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever; ” in section 3, “ that the said lands hereby granted to the said State, shall be subject to the disposal of the legislature thereof, for the purposes aforesaid and no other; ” and in section 4, that “if any of said roads is not completed within ten years no further sales shall be made, and the lands unsold shall revert to the United States.” Apparently, Congress contemplated among other things the construction of a railroad northerly from Fond du Lac to the line between Wisconsin and the northern peninsula of Michigan, and thence in two branches to Marquette and Ontonagon, on the Lake Superior shore. On February 14, 1857, an act passed the Michigan legislature (Laws of 1857, 346, No. 126) accepting this grant, and transferring to the Marquette and State Line Railroad Company (hereinafter called the Marquette Company) and the Ontonagon and State Line Railroad Company, (hereinafter called the Ontonagon Company,) two corporations created under the laws of the State of Michigan, so much respectively of said grant as was intended to aid in the construction of the road 358 OCTOBER TERM, 1891. Statement of the Case. between Marquette and the state line and that between Ontonagon and the state line. The language of the act making the transfer is emphatic as to the division between the two companies. It reads: “In like manner all the lands, franchises, rights, powers, and privileges which are or may be granted and conferred, in pursuance of said act of Congress, to aid in the construction of a railroad from Marquette to the Wisconsin state line, be, and the same are hereby vested fully and completely in the Marquette and State Line Railroad Company; in like manner all the lands, franchises, rights, powers, and privileges, which are or may be granted and conferred in pursuance of said act of Congress, to aid in the construction of a railroad from Ontonagon to the Wisconsin state line, are hereby vested fully and completely in the Ontonagon and State Line Railroad Company.” By the same act a board of control was created to supervise the disposition of the granted lands, and in section 11 it was provided that on the failure by the respective companies to construct their lines of road, or any part thereof, in the time and manner required, the “said board of control shall have the power, and it is hereby made their duty, to declare said lands, so far as they have not been sold in good faith, forfeited to the State, and said board of control are hereby required to confer said lands upon some other competent party, under the general regulations and restrictions of this act.” The grant to the State of Wisconsin was conferred by its legislature upon the Chicago, St. Paul and Fond du Lac Railroad Company, an Illinois and Wisconsin corporation, and on March 27, 1857, that corporation was consolidated with the Marquette Company and the Ontonagon Company, the consolidated company taking the name of the Chicago, St. Paul and Fond du Lac Railroad Company. No question is made as to the validity of this consolidation. Neither the Ontonagon nor the Marquette Company filed any map of location, but the consolidated company (hereinafter called the Fond du Lac Company) on November 30, 1857, filed in the General Land Office twro maps of definite location, one of the Wiscon- LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 359 Statement of the Case. sin part of its road, and the other of the Michigan portion. On the latter the roads from Marquette and Ontonagon were located so as to unite some live or -six miles above the Wisconsin state line, so that the two maps together showed a single continuous line from Fond du Lac through Wisconsin and to a point in Michigan five or six miles above the state line, where it separated into two branches, one going to Marquette and the other to Ontonagon. The Fond du Lac Company built no road — at least none in Michigan. On April 6,1857, it executed a mortgage covering all its property, including the land grants in Michigan and Wisconsin. Subsequently, foreclosure proceedings were had, and by proper conveyances all the title of the Fond du Lac Company passed to the Chicago and Northwestern Railway Company, the last conveyance being executed on July 1, 1859. On December 12, 1861, the Interior Department certified to the State of Michigan certain lands along the lines of these roads in satisfaction of the grants made by the act of June 3, 1856. These lands were certified in four lists : one, of lands within the six-mile limits of the Ontonagon and State Line branch, (clear). This list included 142,430^- acres, and among the lands so certified was the tract in controversy in this case. On March 4, 1861, the legislature of the State of Michigan, contemplating a change of route from Marquette to the Wisconsin state line, passed an act, (Laws of Mich. 1861, 123, No. 90,) the preamble and first section of which are as follows: “Whereas, the Marquette and State line railroad company have heretofore consolidated with the Chicago, St. Paul and Fond du Lac railroad company, of Wisconsin, and said company having become insolvent, and all its property in Wisconsin transferred to another company: And whereas, The most practicable route for a railroad connecting Lake Superior with the system of railroads in Wisconsin, should be located on a different route from the one heretofore partially selected, namely: from Marquette to the mouth of the Menominee River; therefore, “Seo. 1. The People of the State of Michigan enact, That for the purpose of placing the aforesaid lands, franchises, rights, 360 OCTOBER TERM, 1894. Statement of the Case. powers and privileges, which are or may be granted in pursuance of said act of Congress, approved June third, eighteen hundred and fifty-six, to aid in the construction of a railroad from Marquette to the Wisconsin state line, near the mouth of the Menominee River, in a position to encourage the early construction of said road, do hereby repeal so much of section two of ■ An act to repeal section twenty of an act disposing of certain lands for railroad purposes, approved February fourteenth, eighteen hundred and fifty-seven,’ approved February fifteenth, eighteen hundred and fifty-nine, as relates to the extension of the time to complete the first section of twenty miles of the Marquette and state line railroad, or any other act amendatory thereto, and do hereby place the same in charge of the board of control, who shall have power, and [it] is hereby made their duty, to confer said lands, franchises, rights, powers and privileges upon some other competent party or company under the general regulation and restrictions of an act disposing of certain grants of land made to the State of Michigan for railroad purposes by an act of Congress, approved June third, eighteen hdndred and fifty-six, and approved February fourteenth, eighteen hundred and fiftyseven, and all acts amendatory thereto.” Nothing was said in this act about the Ontonagon Company or the road from Ontonagon to the state line. In order to carry into effect this contemplated change of route, the Chicago and Northwestern Railway Company promoted the formation of the Peninsula Railroad Company, a corporation organized under the laws of the State of Michigan, and on April 24, 1862, the Peninsula Company applied to the Michigan board of control to transfer to it the land grant theretofore bestowed by the State upon the Marquette Company, which application was endorsed by the Chicago and Northwestern Railway Company, whereupon the board of control made the following order: “ It is now ordered by this board that all the lands, franchises, rights, powers, and privileges which are or may be granted in pursuance of said act of Congress approved June 3, 1856, to aid in the construction of a railroad from Marquette to the Wisconsin state line, be, and the same are hereby, conferred LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 361 Statement of the Case. upon the said Peninsula Railroad Company, under the regulations and restrictions of an act approved February 14, 1857, entitled ‘ An act disposing of certain grants of land made to the State of Michigan for railroad purposes by act of Congress approved June 3, 1856,’ and of all acts amendatory thereto.” And at the same time it passed a resolution, the material portion of which is as follows: “ Resolved, That this board of control of railroad land grants for the State of Michigan do hereby recommend and request that Congress do authorize the relocation of the lands granted for the purposes of the line of road from Marquette to the Wisconsin state line so as to conform to the new line that shall be surveyed and adopted by the said Peninsula Railroad Company, terminating at the mouth of the Menominee River, and to the same effect and extent as if such grant had been originally intended to embrace the route so designated and the same had been originally conferred upon said Peninsula Railroad Company.” On July 5, 1862, evidently with a view to carry out the wish of the State of Michigan, as expressed in the act of March 4, 1861, and the resolution of the board of control, Congress passed a joint resolution, No. 38, 12 Stat. 620, whose first section is in these words: '''Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the words ‘Wisconsin state line,’ in the first section of an act entitled ‘An act making a grant of lands to the State of Michigan, in alternate sections, to aid in the construction of railroads in said State,’ approved June third, eighteen hundred and fifty-six, shall, without forfeiture to said State or its assigns of any rights or benefits under said act, or exemption from any of the conditions or obligations imposed thereby, be construed to authorize the location of the line of railroad provided for in said act from Marquette, on Lake Superior, to the Wisconsin state line, upon any eligible route, from the township of Marquette aforesaid, to a point on the Wisconsin state line, near the mouth of the Menominee River, and touching at favorable points on Green Bay, with a view of 362 OCTOBER TERM, 1894. Statement of the Case. securing a railroad available for military purposes from Green Bay to the waters of Lake Superior. And the line of railroad as now located in pursuance of said act from Marquette to the Wisconsin state line, according to the records of the General Land Office, is hereby authorized to be changed so as to conform to the route above indicated; which line, when surveyed and the maps and plans thereof filed in the proper office, as required under said act of June third, eighteen hundred and fifty-six, shall confer the same rights upon and benefits to the State of Michigan and its assigns in said new line, as though the same had been originally located under said act.” Sections 4 and 5, so far as they bear upon any question in this case, are as follows: “ Sec. 4. And be it further resolved. That the even sections of public lands reserved to the United States by the aforesaid act of June third, eighteen hundred and fifty-six, along the originally located route of the Marquette and Wisconsin State Line Railroad Company, except where such sections shall fall within six miles of the new line of road so as aforesaid proposed to be located, and along which no railroad has been constructed, shall hereafter be subject to sale at one dollar and twenty-five cents per acre. “ Sec. 5. And be it f urther resolved, That upon the filing in the General Land Office of the lists of said railroad lands, in whole or in part, as now selected and certified in the General Land Office, with the certificate of the governor of the State of Michigan, under the seal of the State, that said State and its assigns surrender all claims to the lands, as aforesaid, set forth and described in the lists thereof thus certified, and that the same have never been pledged or sold or in anywise encumbered, then the State of Michigan or its assigns shall be entitled to receive a like quantity of land, selected in like manner, upon the new line of road as thus surrendered upon the first line, and to the extent of six sections per mile in the aggregate for every mile of the new line, according to the general provisions of the act of June third, eighteen hundred and fifty-six.” LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 363 Statement of the Case. Prior to this time, and on April 25, 1862, Congress had authorized a relocation of the line in the State of Wisconsin so as to connect with the proposed line from Marquette southward, contemplated by the act of March 4, 1861, of the State of Michigan. 12 Stat. 618, No. 30. On March 18, 1863, in the legislation of the State of Michigan, appears an act, (Laws of Mich. 1863, 186, No. 127,) the first section of which is as follows: “ Sec. 1. The People of the State of Michigan enact, That the grant of lands conferred by the board of control upon the Peninsula railroad company, under authority of an act approved March fourth, eighteen hundred and sixty-one, and upon the relocated route authorized for military purposes by resolution of Congress approved July fifth, eighteen hundred and sixty-two, is hereby confirmed unto the said Peninsula railroad company: Provided, It shall construct the railroad referred to according to the requirements of the act and resolution of Congress herein referred to.” On May 3, 1863, the Peninsula Company executed a relinquishment to the United States. This relinquishment, after reciting the forfeiture of the grant to the Marquette Company and its bestowal on the Peninsula Company, and the contemplated change of route, reads: “ Now, therefore, the said Peninsula Railroad Company, in consideration of the premises and in consideration that the United States will cause or permit the relocation of said land grant so as to conform to said new line under the provisions of said resolution and the acts aforesaid, do hereby release and surrender to the United States of America all right, claim, and interest in and to so much of the lands heretofore located on the original proposed line of the Marquette and State Line Railroad, from Marquette to the Brule River, in township forty-two (42) north of range thirty-five (35) west, sufficient to cover one hundred and sixty-one thousand one hundred and four and thirty-eight one-hundredths acres (161,104.38) of land as approved by certificate thereof filed in the General Land Office of the United States on the 12th day of December, 1861, which the said Peninsula Railroad Company may 364 OCTOBER TERM, 1894. Statement of the Case. have acquired under the grant and location aforesaid and the transfer thereof to said company as lie between the mouth of the Brule River and the township line, between ranges numbers twenty-eight and twenty-nine west of the meridian of Michigan.” On February 21, 1867, the legislature of Michigan passed a joint resolution (1 Laws of Michigan, 1867, 317) in words following: “ Whereas, By act of Congress, approved June third, eighteen hundred and fifty-six, there was made, among other grants to this State, a grant of land to aid in the construction of a railroad from Marquette to the Wisconsin state line; and whereas, by joint resolution of Congress, approved July fifth, eighteen hundred and sixty-two, a change of the route of said road was authorized, and in fact has been made; and whereas, the company have executed a release of said land to the governor; therefore, “ Resolved hy the Senate and House of Representatives of the State of Michigan, That the governor be and he is hereby authorized to execute and file the certificate of non-incum-brance and surrender to the United States of the land on the original line of said railroad, required by said joint resolution.” On January 31, 1868, a further release was executed by the Chicago and Northwestern Railway Company, with which the Peninsula Company had theretofore consolidated, which release commences with this recital: “Whereas by act of Congress of the United States, approved on the third day of June, a.d. 1856, entitled ‘A bill making a grant of lands to the State of Michigan in alternate sections to aid in the construction of railroads in said State,’ every alternate section of land designated by odd numbers for six sections in width on each side of said roads, was granted to said State of Michigan to aid in the construction of railroads from Marquette to the Wisconsin state line.” And then, after reciting various acts and resolutions of Congress and the State of Michigan, hereinbefore referred to, proceeds as follows: LAKE SUPERIOR &u. (JU. v. CUNNINGHAM. 365 Statement of the Case. “ And whereas lists of said railroad lands granted by said act of 1856 to aid in the construction of said railroad from Marquette to the Wisconsin state line, as the same was originally located, have been filed in the General Land Office : “ Now, therefore, the said Chicago and Northwestern Railway Company, in consideration of the premises, does hereby remise, release, and forever quitclaim unto the said State of Michigan, and its assigns forever all the right, title, and interest it now has or has ever had in and to the following pieces or parcels of land situate, lying, and being in the said State of Michigan, and conveyed and certified to said State in accordance with the several acts of Congress hereinbefore specifically referred to — that is to say : (Here follow the descriptions of lands embraced in three of the lists hereinbefore mentioned, to wit : First, the lands within the six-miles clear limits of the railroad from Marquette to the Wisconsin state line, containing 112,145.38 acres; second, lists of lands within the six-miles limits of the lines of railroad from Ontonagon to the state line, and from Marquette to the state line, where they intersect and cross each other, containing 41,649.25 acres ; third, list of lands within the six-miles limits of the line of railroad from Ontonagon to the Wisconsin state line, and the Marquette and Ontonagon railroad, where they intersect and cross each other, containing 32,305.93 acres.) ” None of the lands within the “ clear ” limits of the road from Ontonagon to the state line were included in this release. On May 1, 1868, the governor of the State of Michigan executed to the United States a release of the same lands by an instrument containing substantially the same recitals. These releases seem to have been forwarded by the solicitor of the Chicago and Northwestern Railway Company to the Commissioner of the General Land Office at Washington, who answered on July 13,1868, acknowledging the receipt and approving the releases as good for the lands described therein, but adding this reference to the lands within the “clear” limits of the Ontonagon road : “ I have to invite your attention to a list of lands, embracing 142,430.23 acres, certified to the State December 21, 1861, for the branch line to Ontonagon, which 366 OCTOBER TERM, 1894. Statement of the Case. are omitted in the aforesaid release. The state and railroad company are requested to execute a similar release for said lands, which will complete the whole matter for both branches.” Some correspondence followed between the commissioner and the solicitor, and, the list having been furnished by the former to the latter, the Chicago and Northwestern Railway Company, on June 17,1870, executed a formal release of these lands to the State of Michigan. This instrument in its recitals referred to the various acts and resolutions of the State of Michigan and the United States mentioned in the former releases, and recited that this was also made in consideration thereof. Thereafter, and on August 14,1870, the governor of the State of Michigan likewise executed a formal release of the same lands to the United States. On May 29, 1873, the Commissioner of the General Land Office gave notice to the officers of the local land office that these last-named lands were restored to the public domain, but on July 30 following countermanded by telegraph such order of restoration. The telegram was sent upon the receipt of a letter from the then governor of the State of Michigan, notifying the Land Department that the release executed by the former governor of the lands within the “ clear ” limits of the Ontonagon and State Line road was unauthorized and void, because not within the scope of the resolution passed by the legislature, and also claiming that the lands still belonged to the State. On March 11, 1878, the Commissioner of the General Land Office addressed a letter to the Secretary of the Interior, which was by him referred to Congress, calling attention to the condition of this grant. After stating the facts in the case, the commissioner closes his letter in these words : “ Upon an examination of the case it appears, in my opinion, that my predecessor erred in demanding deeds of relinquishment of the lands granted for the Ontonagon and State Line Railroad Company from the Chicago and Northwestern Railroad Company and the governor of Michigan, as there does not appear to have been any action taken either by the board of control or the state legislature to transfer the grant originally made for the Ontonagon and State Line railroad to LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 367 Statement of the Case. the said Chicago and Northwestern Railroad Company or to authorize the governor of Michigan to make such a deed, and the title to said lands appears to be in the State of Michigan, under the original grant per act of June 3, 1856, and the subsequent approval made thereunder, as stated in the enclosed letter of Governor Bagley, except such portion thereof as has since been granted to the Marquette and Ontonagon Railroad Company. “ In view of the fact that the railroad from Ontonagon to the Wisconsin state line has not been built, and of the terms of the granting act of 1856, and the confirmatory act of the Michigan legislature of February 14,1857, the grant originally made for said road became liable to reversion more than ten years since, and in view of the further fact that neither the state legislature nor the board of control have ever conferred the said grant upon any other party or parties, and that at present there is no party or corporation in esse proposing to build a railroad upon this line, I would respectfully recommend that the attention of Congress be called to the present status of these lands with a view to such action as may be necessary to restore the same to market.” On September 10, 1880, the Ontonagon and Brule River Railroad Company was organized under the laws of the State of Michigan, and on September 17, 1880, the board of control of the State passed a resolution declaring the grant to the Ontonagon Company forfeited, and bestowing it upon the Ontonagon and Brule River Railroad Company, which grant was accepted by the directors of that company on October 25. It appears that this company built about twenty miles of road from Ontonagon south, but never completed the road to the state line, nor opposite the land in controversy, nor did it ever receive any of the lands embraced in the grant. The narration thus far develops the title of the land in controversy so far as it is determined by the railroad grant legislation, and action taken thereunder. Turning now to the canal land grant legislation, the following is its history: On March 3, 1865, Congress passed an act, c. 202, 13 Stat. 519, giving to the State of Michigan authority to locate and con- 368 OCTOBER TERM, 1894. Statement of the Case. struct a ship canal through the neck of land between Lake Superior and Portage Lake, and granting in aid thereof “ two hundred thousand acres of public lands, to be selected in subdivisions agreeably to the United States survey, by an agent or agents appointed by the governor of said State, subject to the approval of the Secretary of the Interior, from any lands in the upper peninsula of said State, subject to private entry: Provided, That said selections shall be made from alternate and odd-numbered sections of land nearest the location of said canal in said upper peninsula, not otherwise appropriated, and not from lands designated by the United States as ‘mineral’ before the passage of this act, nor from lands to which the rights of preemption or homestead have attached.” This was a grant in proesenti, the language being: “ That there be, and hereby is, granted to the said State of Michigan.” The fifth section of the act provided that if the work was not completed within two years, the lands granted should revert to the United States. On March 18, 1865, the legislature of the State of Michigan accepted this grant, and conferred it upon the Portage Lake and Lake Superior Ship Canal Company. Laws of Michigan, 1865, No. 216, 474. On July 3, 1866, Congress passed another act, making an additional grant of 200,000 acres, 14 Stat. 81, the language of which act is as follows: “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and hereby is, granted to the State of Michigan, to aid in the building of a harbor and ship canal at Portage Lake, Keweenaw Point, Lake Superior, in addition to a former grant for that purpose, approved March the third, eighteen hundred and sixty-five, two hundred thousand acres of land in the upper peninsula of the State of Michigan, and from land to which the right of homestead or preemption has not attached: Provided, That one hundred and fifty thousand acres of said lands shall be selected from alternate odd-numbered sections, and fifty thousand acres from even-numbered sections of the lands of the United States. Said grant of lands shall inure to the use and benefit of the Portage Lake and Lake Superior LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 369 Statement of the Case. Ship Canal Company, in accordance with an act of the legislature of the State of Michigan, conferring the land granted to the said State, by the act herein referred to, on said company: And provided further. That the time allowed for the completion of said work and the right of reversion to the United States, under the said act of Congress, approved March the third, eighteen hundred and sixty-five, be extended three additional years: And provided further, That no lands designated by the United States as ‘mineral’ before the passage of this act shall be included within this grant.” The canal was completed and the final certificate of completion given by the governor on June 25,1875. Prior thereto, and on July 1, 1865, the canal company executed a mortgage of the lands embraced in the first grant; on July 1, 1868, a second mortgage, covering the lands included within the second grant; and on July 1, 1870, a third mortgage, covering all defendant’s property. By foreclosure proceedings the title to all this property became vested in the plaintiff in error. An agent on the part of the State was duly appointed to make the selection of lands covered by these two grants. Among the lands selected by him was the tract in controversy, which was, in 1871 and after the second release executed by the governor of the State of Michigan, certified by the Land Department to the State in part satisfaction of the canal grant. This tract was from 1880 to 1888 assessed to the plaintiff for state, county, township and other taxes, and such taxes, amounting in the aggregate to $187.26, paid by it. On March 12, 1888, the defendant settled upon the tract in controversy, and has ever since continued in possession. On May 25, 1888, he applied to the local land office to enter the lands under the preemption law, stating in his application that he had lived with his family on the land since the 28th of March prior. This application was rejected on the ground that the land had been selected and certified to the State of Michigan in satisfaction of the canal grant. On March 2, 1889, Congress passed an act, c. 414, 25 Stat. 1008? the material portions of which are as follows ; VOL. CLV—24 370 OCTOBER TERM, 1894. Statement of the Case. “ Sec. 1. That there is hereby forfeited to the United States, and the United States hereby resumes the title thereto, all lands heretofore granted to the State of Michigan by virtue of an act entitled ‘ An act making a grant of alternate sections of the public lands to the State of Michigan to aid in the construction of certain railroads in said State and for other purposes,’ which took effect June third, eighteen hundred and fifty-six, which are opposite to and coterminous with the uncompleted portion of any railroad, to aid in ’ the construction of which said lands were granted or applied, and all such lands are hereby declared to be a part of the public domain. . . . “ Sec. 2. That nothing . . . And provided further, That this act shall not be construed to prejudice any right of the Portage Lake Canal Company, or the Ontonagon and Brule River Railroad Company, or any person claiming under them, to apply hereafter to the courts or to Congress for any legal or equitable relief to which they may now be entitled, nor to prejudice any right of forfeiture, as hereby declared, or recovery of the United States in respect of any of the lands claimed by said companies, nor to the prejudice of the right of any person claiming adversely to said companies or their assigns, under the laws of the United States. “ Sec. 3. That in all cases when any of the lands forfeited by the first section of this act, or when any lands relinquished to, or for any cause resumed by, the United States from grants for railroad purposes, heretofore made to the State of Michigan, have heretofore been disposed of by the proper officers of the United States or under state selections in Michigan, confirmed by the Secretary of the Interior, under color of the public land laws, where the consideration received therefor is still retained by the government, the right and title of all persons holding or claiming under such disposals shall be, and is hereby confirmed: Provided, however, That where the original cash purchasers are the present owners this act shall be operative to confirm the title only of such said cash purchasers as the Secretary of the Interior shall be satisfied have purchased without fraud and in the belief that they were thereby obtaining valid title from the United States. That nothing LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 371 Opinion of the Court. herein contained shall be construed to confirm any sales or entries of lands, or any tract in any such state selection, upon which there were bona fide preemption or homestead claims on the first day of May, eighteen hundred and eighty-eight, arising or asserted by actual occupation of the land under color of the laws of the United States, and all such preemption and homestead claims are hereby confirmed. “Sec. 4. That no lands declared forfeited to the United States by this act shall inure to the benefit of any State or corporation to which lands may have been granted by Congress except as herein otherwise provided; nor shall this act be construed to enlarge the area of land originally covered by any such grant, or to waive or release in any way any right of the United States now existing to have any other lands granted by them, as recited in the first section, forfeited for any failure, past or future, to comply with the conditions of the grant. Nor shall the moiety of the lands granted to any railroad company on account of a main and a branch line appertaining to uncompleted road, and hereby forfeited, within the conflicting limits of the grants for such main and branch lines, when but one of such lines has been completed, inure, by virtue of the forfeiture hereby declared, to the benefit of the completed line.” Mr. John F. Dillon, (with whom was Mr. Daniel U. Ball on the brief,) for plaintiff in error. Mr. Don M. Dickinson for defendant in error. Mr. Justice Bbewer delivered the opinion of the court. The act of June 3, 1856, was a grant in proesenti, and when by the filing of the map of definite location the particular tracts were identified, the title to those lands was vested in the State of Michigan, to be disposed of by it in aid of the construction of a railroad between Ontonagon and the Wisconsin Stateline. The lands were withdrawn from the public domain, and no longer open to settlement by individuals for preemp- 372 OCTOBER TERM, 189.4. Opinion of the Court. tion or other purposes. Although there was a provision for the forfeiture of the lands if the road was not completed within ten years, such provision was a condition subsequent, which could be enforced only by the original grantor, the United States. And until, in some appropriate method, it asserted its right of forfeiture, the title remained in the State of Michigan or the corporations upon which, from time to time, it conferred the benefit of the grant. Schulenberg v. Harriman, 21 Wall. 44; United States v. Southern Pacific Railroad, 146 U. S. 570; United States v. Northern Pacific Railroad, 152 U. S. 284. The case of Schulenberg v. Harriman is exactly in point. In that case was considered a land grant to the State of Wisconsin — a grant with a provision for forfeiture of the lands on a failure to construct the road. After a full consideration of the question, Mr. Justice Field, delivering the opinion of the court, summed up the result in these words : “ In the present case no action has been taken either by legislation or judicial proceedings to enforce a forfeiture of the estate granted by the acts of 1856 and 1864. The title remains, therefore, in the State as completely as it existed on the day when the title by location of the route of the railroad acquired precision and became attached to the adjoining alternate sections.” Again, the grant made by the act of June 3, 1856, to the State of Michigan contemplated separate railroads from Ontonagon to the state line, and from Marquette to the state line. This is obvious from the language of the act. The legislature of the State of Michigan treated it as such, and conferred the grant on two separate corporations. And this distinction has since been recognized again and again, both by the State and United States, down to and including the confirmatory act of Congress of March 2, 1889, in which the “ Ontonagon and Brule River Railroad Company ” is mentioned as one of the companies whose rights were not to be prejudiced by the forfeiture. Prior to the act of Congress of March 2, 1889, there was on the part of the United States no legislative or judicial proceeding looking to a forfeiture of these lands, or a retransfer LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 373 Opinion of the Court. of them to the United States. Up to that time, therefore, they remained the property of the State of Michigan, to be used by it in aid of the construction of a railroad between Ontonagon and the Wisconsin state line. Whatever changes were made by the State as to the beneficiary of such grant, whatever releases may have been executed by any such beneficiary to the State, they in no manner operated to retransfer the lands to the United States. It is true that the governor of the State at one time executed a formal release of them to the United States, but such release was beyond his power. The only authority which he had in the matter was that conferred by the resolution of the legislature of the State of Michigan of February 21, 1867, which described other lands. Indeed, the instrument which the governor executed, in terms referred to that legislation as his authority, so that no one, after examination, could have been misled. Further, the grant to the State of Michigan was to aid in the construction of a railroad. Affirmatively, it was declared in the acts of Congress that the lands should be applied by the State to no other purpose. Even if there had been no such express declaration, such a limitation would be implied from the declaration of Congress that it was granted for the given purpose. As the State of Michigan had no power to appropriate these lands to any other purposes, certainly no act of any executive officer of the State could accomplish that which the State itself had no power to do. The railroad grant, the filing of the map of definite location, and the certification of the lands to the State were all before the canal grant, so that at that time these lands were identified, separated from the public domain, appropriated to a particular purpose, and not to be considered as within the scope of any subsequent grant by Congress, unless in terms made so. General terms in a subsequent grant are always held to not include lands embraced within the terms of the prior grant. Even a patent may be declared void if issued for lands theretofore reserved from sale. This is the settled rule of this court. Wilcox v. Jackson, 13 Pet. 498; Stoddard v. Chambers, 2 How. 284; Bissell v. Penrose, 8 How. 374 OCTOBER TERM, 1894. Opinion of the Court. 317; Minter v. Crommelin, 18 How. 87; Easton v. Salisbury, 21 How. 426; Reichart v. Felps, 6 Wall. 160; Morton v. Nebraska, 21 Wall. 660; Shepley v. Cowan, 91 U. S. 330; Leavenworth, Lawrence &c. Railroad v. United States, 92 U. S. 733; Newhall v. Sanger, 92 U. S. 761; Sherman v. Buick, 93 U. S. 209; Smelting Co. n. Kemp, 104 U. S. 636; Steel v. Smelting Co., 106 U. S. 447; Reynolds v. Lron Silver Mining Co., 116 U. S. 687; Wright v. Roseberry, 121 U. S. 488; Doolan v. Carr, 125 U. S. 618. From these cases we make these two quotations, as clearly setting forth the law applicable to this question. In Smelting Company v. Kemp (supra) it was said, p. 641: “ Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed.” And in Doolan v. Carr, p. 624: “There is no question as to the principle that where the officers of the government have issued 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 actions 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 conveyance 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 been withdrawn from that control at the time they undertook to exercise such authority, then their act was void — void for want of power in them to act on the subject-matter of the patent, not merely voidable.” LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 375 Opinion of the Court. Counsel for plaintiff in error cite several cases in which, power having been given to the Secretary of the Interior to determine a question of fact, his determination thereof, as expressed by the issue of a patent, was held conclusive. The latest of those cases is Barden v. Northern Pacific Railroad^ 154 U. S. 288, in which the rule was thus stated, p. 327: “ It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the Land Department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack.” That case fully illustrates the extent to which the rule goes. The grant to the Northern Pacific was of lands “non-min-eral,” and it was held that it was a question of fact whether lands were mineral or non-mineral, and that question of fact was for the determination of the Land Department, and when determined by it, conclusively settled. But those cases are not pertinent, for here there was no question of fact to be determined. Long prior to any legislation respecting the canal grant the lands granted to the Ontonagon Company had been identified and set apart. The record thereof was in the office of the Land Department. By that identification and certification those lands were absolutely separated from the public domain, and as fully removed from the control of the Land Department as though they had been already patented to the State. And whether those lands were or were not returned to the United States, and released from the burden of that grant, was not a question of fact, but one of law, and depended upon the construction to be given to the resolution of the State of Michigan of February 21, 1867. Much reliance is placed by counsel in brief and argument upon the “obvious intent” and the “general understanding.” It is said that, as indicated by the provisions of the two acts of June 3, 1856, the original plan was the construction of a 376 OCTOBER TERM, 1894. Opinion of the Court. main line from Fond du Lac northerly to the state line, and thence in two branches to Marquette and Ontonagon, on Lake Superior; that when this plan was changed, and the route from Fond du Lac to the state line abandoned and a new route farther eastward substituted in its place, it was to be expected that the original branches would likewise be changed to something to connect with the new main line; that it cannot be supposed that Congress would contemplate the building of a road from Ontonagon southerly to the Wisconsin state line, with no connections at that place with any other road, and that hence, although only the Marquette line is mentioned in the resolutions of Congress and of the state legislature as abandoned, etc., both the Marquette and Ontonagon branches must have been intended. It is insisted that all parties, the railroad companies, the State, and the Land Department of the United States, so understood the scope of the resolutions, and acted upon that understanding. But it does not follow, because the main line in Wisconsin was moved eastward, that Congress deemed it unwise or unnecessary to attempt to reach the waters of Lake Superior at Ontonagon. It may have supposed that the aid already granted to the Ontonagon line, and which it did not in terms disturb, was sub ficient to insure its construction to a junction with the new main line; or, it may have thought that a line simply opening that part of the State of Michigan to the waters of Lake Superior deserved Congressional aid. In the original act granting aid to the State of Michigan four lines or roads are named in a single sentence. When Congress, by subsequent legislation, selects one only of those lines, and relocates that, it is going very far to say that Congress must have intended to abandon one or all of the other three, and to withdraw the aid which it had granted for their construction. Neither can it be said that there has been any “ general understanding.” True, the Northwestern Railway Company, when called upon, executed to the State a release of its interest in the lands granted to aid in the building of the Ontonagon line, but that might well be because it had no thought of constructing any such line, and had no desire to hold on to a grant which it did LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 377 Opinion of the Court. not intend to use. It may be conceded that there has been some confusion in the rulings of the department, and in the action of the state officials. Nevertheless there has been no uniform interpretation of the condition of things as is claimed by counsel. On the contrary, there were frequent assertions of right by the State ; efforts by it to utilize the grant to the Ontonagon Company in the construction of the proposed road. It cannot be said that there has been general acquiescence in one interpretation. So, after all, as there is no pretence of any proceeding in the way of forfeiture by the United States prior to the act of March 2, 1889, the question must depend upon the scope and effect of the action of the legislature of the State of Michigan; and that, as we have seen, only contemplated a release of the grant so far as it was to aid in the construction of the Marquette and State Line road. It follows from these considerations that at the time of the passage of the act of March 2, 1889, neither the plaintiff nor defendant had any right or title to the tract in controversy. It, like other lands within the Ontonagon grant, belonged to the State of Michigan, to be disposed of by that State only in aid of the construction of a railroad, and subject to forfeiture by the United States for failure to construct the road. We come, therefore, to the final question, and that is, the true construction of the act of March 2, 1889. The first section simply declares a forfeiture of the lands opposite to and coterminous with the uncompleted portion of any railroad in aid of which the grant of 1856 was made. So far as the parties to this controversy are concerned, that is the whole significance of the section. As to them it grants nothing and withdraws nothing. And as at the time of the passage of the act neither settler nor company had any right or title to the lands, if this were the only section it would operate simply to resume the title to the United States, clear the lands of all pretence of adverse claims, and add them to the public domain, to be thereafter disposed of as other public lands are disposed of. The second and third sections are the troublesome parts of the act, and it must be conceded that the true construction is not altogether obvious, and yet when 378 OCTOBER TERM, 1894. Opinion of the Court. the situation as it existed and as it was known to Congress is considered, the meaning can be satisfactorily discerned. Some of the lands had been selected and certified to the State of Michigan by the officers of the Land Department in part satisfaction of the canal grant. Some were occupied by settlers claiming the right of preemption and homestead, and of these some were lands which had been selected and certified to the State. Possibly some were claimed by the State, or individuals under the Swamp Land Act, or other acts of Congress. Congress knew that these lands, the title to which it was purposing to resume discharged of all right on the part of the State of Michigan to use them in aid of the construction of a railroad, were already subject to other and conflicting claims, of no legal validity, yet of a character justifying consideration. Under those circumstances, with the view of securing an equitable adjustment of these conflicting claims, it enacted the second and third sections of this act. It will be more convenient to consider the third section first. That recognizes that certain of these lands had “ heretofore been disposed of by the proper officers of the United States or under state selections in Michigan confirmed by the Secretary of the Interior, under color of the public land laws,” and declares that if the “consideration received therefor is still retained by the government,” the title of the lands thus disposed of “ shall be and is hereby confirmed.” Now, there had been, as appears, state selections in Michigan of a portion of these lands for the canal company, which selections had been confirmed by the Secretary of the Interior, and such selections were made under color of the acts of Congress making the canal grant. This makes a case apparently within the scope of the confirmation. But this is denied, because, first, the selections were under color of special grants to aid in the construction of the canal, and not under color of the general laws in respect to the disposal of public lands; and, secondly, because the government received no consideration therefor, and of course cannot be said to still retain that which it never received. This view is, as is claimed, also supported by the proviso immediately following, to wit, “ that LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 379 Opinion of the Court. where the original cash purchasers are the present owners,” etc., as though the confirmation was intended to apply to those only who had paid money to the government, and in that way had obtained a claim of title to the lands. There is some force to this contention, but we think it places too narrow a construction upon the language. It does not appear from this record, except inferentially from a letter of the Commissioner of the General Land Office, that there were any selections of lands within the railroad grant made by the State otherwise than in attempted satisfaction of the canal grant, and we are not aware of any act of Congress granting lands to the State of Michigan for any purpose, cash considerations for which were to be paid by the State, or received by the general government; while it does appear that the attention of Congress was called to the fact that selections had been made by the State and confirmed by the. Secretary of the Interior of lands within this railroad grant for the purpose of satisfying the canal grant. The language must be understood as intended by Congress to be applicable to the state of facts as it existed and was known to exist, and not to a state of facts which did not and could not exist. Hence the term “ public land laws,” fairly construed, refers not simply to the statutes making general disposition of the public domain, but to any laws of Congress, special or general, by which public lands were disposed of. So the phrase, “ where the consideration received therefor is still retained by the government,” is satisfied whenever the conditions of the attempted conveyances have been fully complied with. Thus, if any of the lands had been disposed of by the proper officers of the government to individuals under the homestead laws, it could properly be held that the consideration received for such conveyances was still retained by the government, although, in fact, no money had been paid ; for the consideration which the government had provided for the conveyance of such lands was the actual occupation by the homesteader for the specified period. It will be difficult to discover any equitable reason why a preemption claim should be confirmed and a homestead claim disallowed. In like manner, where a 380 OCTOBER TERM, 1894. Opinion of the Court. grant was made to the State in aid of the construction of some work of a public or quasi-public character, the construction of the work is the consideration of the grant, and when that is accomplished the consideration is received and retained by the government. Here it appears from the testimony that the canal was completed, and, therefore, the consideration of the grant was received and retained by the government. Any other construction than this would leave the provision as to state selections in Michigan, confirmed by the Secretary of the Interior, without significance. So, also, the proviso as to original cash purchasers is not to be taken as implying that the confirmation only extends to cash purchases, but, as making a further limitation as to some of those in whose behalf the confirmation is proposed, to wit, those who were cash purchasers and are still owners, the limitation being that as to them the act shall be operative only when, as is said, the Secretary of the Interior shall be satisfied that they purchased without fraud, and in the belief that they were obtaining valuable title from the United States. In other words, the rule of bona fades was applied to lands still held by the original cash purchaser. This, by implication, excluded from its operation lands held by proper conveyances without notice from the original purchasers. And this is the ordinary limit of the application of the rule of bona fades. It was, doubtless, deemed unnecessary to make a like provision as to state selections because fraud could not be imputed to the State. This construction, and this alone, gives operative force to all the clauses of this confirmatory clause as applied to the actual facts of the case, and should be received as the true construction. By this confirmatory clause, therefore, the title of the canal company was confirmed as to the lands selected and certified, with the approval of the Secretary of the Interior, in satisfaction of the canal grant. The only limitation upon this confirmation is found in the closing sentence of that section. That provides that this confirmation shall not extend to any tracts “ upon which there were bona fide preemption or homestead claims on the first day of May, 1888, arising or asserted by actual occupation of LAKE SUPERIOR &c. CO. v. CUNNINGHAM. 381 Opinion of the Court. the land under color of the laws of the United States, and all such preemption and homestead claims are hereby confirmed.” Evidently, the intent of Congress was that in all cases of a conflict between a selection in aid of the canal grant and the claims of any settler, the confirmation should depend upon the state of things existing at a named date, to wit, May 1, 1888, that date being about ten months prior to the passage of the act. If at that time there were no bona fide preemption or homestead claims upon any particular tract the title of the canal company was confirmed. If, on the other hand, there was then a bona fide preemption or homestead claim, arising or asserted by actual occupation of the land under color of the laws of the United States, such preemption or homestead claim was to have preference, and was confirmed. It was the purpose to not leave open to dispute between the parties any question as to the relative equities of their claims, but to fix a precise time, and to describe with particularity the conditions which must exist at that time in order to give the one priority over the other. As there could be no valid transfer of a preemption or homestead claim, it was unnecessa ry to distinguish between such claimants and their grantees as was previously done in respect to cash purchasers. The claim of any settler coming within the scope of this clause was declared by it prior to the claim of the canal company, and was also as against the United States confirmed. So that, in any dispute which in this case arises, we must look to the condition of things on the 1st of May, 1888, in order to determine whether the defendant’s homestead claim or the certification to the canal company was confirmed. Before passing to an inquiry as to this question of fact, it is necessary to refer to those provisions of section 2 which, it is insisted, are inconsistent with that confirmation of the canal selections which we have seen was the purpose of the fore part of section 3. Section 2, after clauses which have no bearing upon this question, names three distinct matters, which it is said are not to be construed as prejudiced by “this act.” First, “ any right of the Portage Lake Canal Company, or the Ontonagon and Brule Bi ver Bailroad Company, or any person 382 OCTOBER TERM, 1894. Opinion of the Court. claiming under them to apply hereafter to the courts or to Congress for any legal or equitable relief to which they may now be entitled.” It will be borne in mind that it is “this act ” — not the forfeiture, not the confirmation, nor any separate provision of the act, but the act as a whole, including therein both forfeiture and confirmation, which is not to work any prejudice. Obviously the clause quoted does not exclude the idea of some confirmation, but means simply that neither forfeiture nor confirmation, nor any other provision in the act, shall be construed as a final settlement of all the claims, legal and equitable, of the companies or their grantees. If, for instance, the canal company, accepting the confirmation provided by section 3, should fail of getting all the lands selected and certified to it, and so receiving the full amount of the grant, (as from the conclusion we have reached in this particular case it seems that it does,) then its acceptance is not to be taken as an estoppel against any subsequent claim to Congress for the deficiency caused thereby. So if, between any of the parties affected by this confirmation, there should be controversies in which on the part of one or the other there were any legal or equitable claims not arising out of this confirmatory legislation of Congress, they were not to be precluded from litigating such claims in the courts. In other words, the confirmation is in such a case to be regarded as nothing but a confirmation, and without further effect or significance. The second matter which the act was not to prejudice was “ any right of forfeiture, as hereby declared, or recovery of the United States in respect of any of the lands claimed by said companies.” The meaning of this clause is not so clear. A reasonable construction is that all the provisions in the act, including both the forfeiture and the special confirmation named in section three, are not to prejudice any right of recovery which the United States may have as against any lands claimed by the companies. That is, if there be any lands within the scope of the original railroad grant of 1856, to which any or either of these companies make any claims, and which are not clearly protected by the confirmation men- LAKE SUPERIOR &c. CO. V. CUNNINGHAM. 383 Opinion of the Court. tioned in the third section, the full rights of the government in respect to such lands may be enforced irrespective of such section. While the language is a little obscure, it ought not to be construed as denying the confirmation which seems to be granted by the third section, and those words in that, which are reasonably clear in their meaning, should not be overthrown by language of doubtful import like this. The only other construction would exclude the companies named from any benefit of the confirmatory provisions. This construction would, of course, compel an affirmance of this judgment as showing that the plaintiff had no title to the land, and was, therefore, in no position to question the defendant’s possession. The third matter is that the act shall not be construed “ to the prejudice of the right of any person claiming adversely to said companies or their assigns, under the laws of the United States.” This means that the confirmation to the companies shall not be taken as an attempt to invalidate any legal or equitable rights of any one as against such companies. If anything had happened through contract, or otherwise, giving to the individual a legal or an equitable claim as against the companies, such legal or equitable right was not to be affected by anything in this act. But that, so far from conflicting with the idea of a confirmation, rather assumes that there is one, and aims to determine its effect rather than deny its existence. There is, therefore, nothing in any of' these provisions to overthrow the construction given to the third section, or which conflicts with the confirmation therein provided. We pass, therefore, finally to the question of fact in respect to the defendant’s homestead claim. It appears that he entered upon the lands in March, 1888, but did not attempt to make an entry in the land office until May 25, 1888. While the term “ homestead claim ” is sometimes used to denote the mere formal application at the local land office, obviously this is not the purport of the term as used in this section, for it is defined by the succeeding words, “ arising or asserted by actual occupation of the land.” This obviously includes cases in which the party was, on tue 1st of May, 1888, in the actual 384 OCTOBER TERM, 1894. Opinion of the Court. occupation of the land, with a view of making a homestead of it under the laws of the United States. But it is said by the counsel for the company that it was not a bona fide homestead claim because at the time the defendant entered upon the land he understood that it was a part of a railroad grant. The testimony of the defendant is all that there is bearing upon the question of bona fides. And while it appears from his testimony that he understood at the time of his entry that it was land embraced within a railroad land grant, he also testifies that he expected that the grant would be removed and that he could then enter the land, and that he went there for the purpose of making it a home. Now, it may be true as a general proposition that a man cannot move upon land which he knows belongs to another and establish a bona fide claim by such wrongful entry, but we do not think that that rule is applicable to the case at bar. The sense in which “bonafide” is used in this clause is indicated by the provision in the one preceding as to cash purchasers. Their purchases were to be protected if made “ without fraud and in the belief that they were thereby obtaining valid title from the United States.” It does not appear that he knew the exact condition of the outstanding claims. If he did, he knew that this railroad grant had been outstanding thirty-two years, that the land was to be restored to the government if the road was not completed within ten years, and that twenty-two years had passed since the time fixed by Congress for the completion of the road, and nothing had been done. His expectation was (and under the circumstances not an unreasonable one) that Congress would at some near time interfere to remove all this outstanding claim. Under those circumstances, and in expectation of such removal, he enters upon the land. Can it be said that this entry and occupation was with a view of depriving anybody of title, or that it was, as against the company, a wrongful entry? If the construction contended for were accepted, it would exclude from the benefit of the act any settler upon these lands who knew that the land he entered upon was within the railroad grant. But legislation respecting public LAKE SUPERIOR &c. CO. v. FINAN. 385 Opinion of the Court. lands is to be construed favorably to the actual settler, and the construction contended for by the canal company seems to us too narrow. If a party entering upon a tract, although he knew that it was within the limits of an old railroad grant, did so under the honest belief and expectation that that grant, if not technically extinguished by lapse of time, had remained so long unappropriated by any beneficiary that Congress would shortly resume it, and in that belief determined to make for himself a home thereon, with a view of perfecting his title under the land laws of the United States when the forfeiture should be finally declared, it must be held, we think, that he is, within the terms of this confirmatory act, a bona fide claimant of a homestead. The ruling of the Circuit Court was correct, and the judgment in favor of the defendant is Affirmed. Lake Superior Ship Canal, Railway and Iron Company v. Finan. Error to the Circuit Court of the United States for the Western District of Michigan. No. 50. Argued November 2, 5, 1894. Decided December 10, 1894. Mr. Justice Brewer. This case differs from the preceding, in that the action was commenced March 21, 1889, and that Finan, the defendant, did not enter upon the tract in controversy until after the 1st of May, 1888. His entry and occupation gave him no rights to the land, because it was embraced within the railroad grant of 1856. He took nothing under the confirmatory act of 1889, because he was not a bona fide claimant or in actual occupation on the 1st of May, 1888. The land was selected and certified to the State for the benefit of the canal company, and was within the scope of the confirmation to the company by the act of 1889. The title of the company was, therefore, perfect as against him. The judgment of the Circuit Court must, therefore, be Reversed, and the case remanded for a new trial. Mr. John F. Dillon for plaintiff in error. Mr. Don M. Dickinson for defendant in error. VOL. CLV—25 386 OCTOBER TERM, 1894. Opinion of the Court. DONAHUE v. LAKE SUPERIOR SHIP CANAL, RAILWAY AND IRON COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN. No. 51. Argued November 2, 5, 1894. — Decided December 10, 1894. This case is governed by the rule laid down in Lake Superior Canal &c. Co. v. Cunningham, ante, 354; but, as the land in controversy is near the crossing of two lines that had received separate grants, it is further subject to the rule that where two lines of road are aided by land grants made by the same act, and the lines of those roads cross or intersect, the lands within the “ place ” limits of both at the crossing or intersection do not pass to either company in preference to the other, no matter which line may be first located, or built, but pass in equal undivided moieties to each. The case is stated in the opinion. Mr. Don M. Dickinson for plaintiff in error. Mr. John F. Dillon, (with whom was Mr. Daniel H. Ball on the brief,) for defendant in error. Mr. Justice Brewer delivered the opinion of the court. The land in controversy in this case, as that in controversy in the two prior cases, is a tract which was certified to the State of Michigan on December 12, 1861, as part of the railroad grant, and afterwards, in 1871, again certified to the State in part satisfaction of the canal grant. Donahue, the plaintiff in error, entered upon the land in February, 1883, and has ever since remained in possession. He entered with the view of preempting, and made his first application under the preemption laws on April 11, 1883. His application was rejected by the local office, from which rejection he appealed to the Commissioner of the General Land Office, and the appeal is still pending in the department. His entry and occupation were such as within the opinion in the Cunningham DONAHUE v. LAKE SUPERIOR CANAL &c. CO. 387 Opinion of the Court. case made him a bona fide claimant, and entitled to the benefit of the confirmation granted by the closing sentence in section three of the act of March 2, 1889. The tract was not, however, within the “clear” six-miles limits of the Ontonagon and State Line road, but was near the crossing of the Ontonagon and the Marquette lines, and within six miles of each, and was part of the 41,649.25 acres certified on December 10, 1861, by the Land Office, in a separate list to the State, which list was, as appears from the statement of facts in the Cunningham case, included in the release, made on January 31, 1868, by the Chicago and Northwestern Railway Company to the State, and that, on May 1, 1868, by the governor of the State to the United States. On that ground it was held by the Circuit Court that the lands at the time of the second certification to the State, to wit, that in satisfaction of the canal grant, were wholly released from the operation of the railroad grant, and were subject to selection and certification for the benefit of the canal company, and that such selection and certification operated to pass to it a full title — a title which could not be defeated by any subsequent entry by the defendant for either homestead or preemption. The case turns, therefore, on the effect of the releases to the State and by it to the United States. By the original act of June 3, 1856, grants of land were made in aid of the construction of two roads, one from Marquette to the state line, and one from Ontonagon to the state line. These grants were bestowed by the State of Michigan, separately, on the Marquette and Ontonagon Companies. The rule is that where two lines of road are aided by land grants made by the same act, and the lines of those roads cross or intersect, the lands within the “ place ” limits of both at the crossing or intersection do not pass to either company m preference to the other, no matter which line may be first located, or road built, but pass in equal undivided moieties to each. St. Paul dk Sioux City Railroad v. Winona de St. Peter Railroad, 112 U. S. 720; Sioux City *& St. Paul Railroad v. Chicago, Milwaukee dec. Railway, 117 U. S. 406. This rule was evidently in the mind of Congress when it passed the con- 388 OCTOBEE TERM, 1894. Opinion of the Court. firmatory act of 1889, for in the last sentence of section four there is a provision that a moiety forfeited on account of the non-completion of one main or branch line should not inure to the benefit of the completed line. When, therefore, the roads from Marquette and Ontonagon respectively to the state line were duly located, the lands within six miles of both at the intersection became appropriated in equal undivided moieties to aid in the construction of each. The fact of the consolidation of the Marquette and the Ontonagon Companies with the Fond du Lac Company, and the further fact that the map of definite location was prepared and filed by the consolidated company, in no manner affect this rule of appropriation. The lands were granted by the United States to the State for the accomplishment of specified purposes, and those purposes could not be defeated by the State, or by any corporations, beneficiaries under the State. It may be that the release of the Chicago and Northwestern Railway Company, at that time the beneficial owner of both the Marquette and the Ontonagon grants, operated to relinquish to the State of Michigan the title to all the lands within such grants; but the only release authorized by the legislature of the State of Michigan was of the lands granted to aid in the construction of the road from Marquette to the Wisconsin state line. This authorized no giving up of the grant in aid of the construction of the road from Ontonagon to the state line, and as that held an undivided moiety of the lands at the crossing, to that extent at least, it still remained after all the releases. It may be a novel condition which resulted, in that it left the State and the United States joint owners, each holding the title to an undivided moiety of this body of lands, and it may be that further evidence may place the case in a different attitude; but on the record as it now stands, it would seem that the plaintiff and the defendant were each the owners of an undivided half of the land in controversy. Inasmuch, therefore, as the Circuit Court erred in adjudging to the canal company the full title to the land, its judgment must be Reversed, and the case remanded for a new trial. UNITED STATES v. GUNNISON. 389 Opinion of the Court. UNITED STATES v. GUNNISON. APPEAL FROM THE COURT OF CLAIMS. No. 484. Submitted December 8, 1894. —Decided December 17,1894. G. was a shipping commissioner at Mobile from June, 1889, to February, 1890. In November, 1889, the Secretary of the Treasury notified him that his compensation would thereafter be at a sum not exceeding $100 in any one month, and that no pay additional to that compensation would be allowed him for his services. In December, 1889, January, 1890, and February, 1890, each, he rendered an account claiming $25 in each month for salary of a clerk, payment of which being refused, he brought this action. Held, that he was not entitled to recover. t The appellee sued in the court below to recover certain fees and clerk hire which he claimed to be due for services rendered as shipping commissioner at the port of Mobile from June 18, 1889, to February, 1890. The claim was for $1607 and costs. There was judgment below in his favor for $75, being $25 a month for clerk hire during the months of December, 1889, and January and February, 1890. From this judgment the United States appealed. Mr. Assistant Attorney General Dodge and Mr. Samuel A. Putnam for appellants. Mr. George A. King for appellee. Mr. Justice White delivered the opinion of the court. The findings of fact in the court below were as follows : “ I. The claimant was a shipping commissioner at the port of Mobile, Ala. “During thè term of his service he made a detailed report monthly to the Secretary of the Treasury of his services and the fees provided by law, with a full, exact, and itemized account of receipts and expenditures. “For the months of December, 1889, and January and February, 1890, his returns were as follows : 300 OCTOBER TERM, 1894. Opinion of the Court. December, 1889, paid salary of clerk, $25... Fees provided by law. $262 75 January, 1890, paid salary of clerk, $25 311 75 February, 1890, paid salary of clerk, $25.... 284 50 “ On each of said accounts the Secretary made and signed the following endorsement: “ ‘ Approved in the sum of one hundred dollars, ($100,) and respectfully referred to the First Auditor, who will please state an account in favor of the U. S. shipping commissioner for the amount found due, payable from the appropriation for “ Salaries, shipping service.” “‘The services enumerated within appear to have been necessarily rendered.’ “ The account was stated by the Auditor, admitted and certified by the Comptroller, and paid to claimant in accordance therewith, except that the services of the clerk were wholly omitted from the account. “ II. Previously to that time the Secretary of the Treasury had fixed the compensation of said claimant not to exceed the sum of $100 a month by a letter addressed to him, as follows: “‘Washington, D. C., November 23, 1889. “ ‘ U. S. Shipping Commissioner, Nobile, Ala. “ ‘ Sir : From and after the 1st proximo the compensation allowed you under section 1 of the act of June 19, 1886, will not exceed the sum of one hundred dollars ($100) in any one month. If the services performed by you in any month do not warrant the payment of one hundred dollars under the existing regulations, your compensation for that month will remain as heretofore fixed. No pay additional to the monthly compensation herein mentioned will be allowed for your services as shipping commissioner. “ ‘ Respectfully yours, “ ‘ C. S. Fairchild, Secretary I ” The law governing the compensation of shipping commissioners is found in the Act of June 26, 1884, c. 121, § 27, 23 Stat. 53, 59, and of June 19, 1886, c. 421, § 1, 24 Stat. 79. By UNITED STATES v. GUNNISON. 391 Opinion of the Court. the first of these statutes (that of June, 1884) it is provided that— “ Shipping commissioners shall monthly render a full, exact, and itemized account of their receipts and expenditures to the Secretary of the Treasury, who shall determine their compensation, and shall, from time to time, determine the number and compensation of the clerks appointed by such commissioner, with the approval of the Secretary of the Treasury, subject to the limitations now fixed by law.” And also that — “All fees of shipping commissioners shall be paid into the Treasury of the United States, and shall constitute a fund which shall be used under the direction of the Secretary of the Treasury to pay the compensation of said commissioners and their clerks, and such other expenses as he may find necessary to insure the proper administration of their duties.” By the second statute (June 19, 1886) it is provided that — “ Shipping commissioners who are paid wholly or partly by fees shall make a detailed report of such services and the fees provided by law to the Secretary of the Treasury, under such regulations as that officer may prescribe ; and the Secretary of the Treasury shall allow and pay from any money in the Treasury, not otherwise appropriated, said officers such compensation for said services as each would have received prior to the passage of this act ; also such compensation to clerks of shipping commissioners aS would have been paid them had this act not passed: Provided, That such services have, in the opinion of the Secretary of the Treasury, been necessarily rendered.” We think it clear that the right of a shipping commissioner to employ clerks under these provisions depends on the sanction of the Secretary of the Treasury. Ihdeed, the act of 1884 expressly so says. The act of 1886, while making some changes as to the method of compensating the commissioners, specifically provides that the clerks of such commissioners shall receive such compensation as would have been paid to them if that act had not passed. If the last act did not repeal the act of 1884, the plaintiff could not recover without 392 OCTOBER TERM, 1894. Opinion of the Court. the endorsement of the Secretary of the Treasury, since that act gives him the right to determine the number and the compensation of clerks to be appointed by the commissioner. If the act of 1884 was repealed by the act of 1886, the plaintiff was equally without the right to recover clerk hire, because under the act of 1886 the amount of compensation to be paid to the commissioner or his clerk depends altogether on the judgment of the Secretary of the Treasury, who is required by that act to certify that such services appeared to have been necessarily rendered. The Secretary formally notified the shipping commissioner in November, 1889, previous to the month for which clerk hire was claimed, that his compensation would be limited to $100 per month, and that no additional compensation would be allowed. When the vouchers were presented, including the items of clerk hire, the Secretary approved them only for $100 per month. This allowance necessarily excluded the clerk hire. The court below based its ruling upon the fact that, in approving the vouchers up to the amount of $100, the Secretary made the statement that “ the services enumerated appear to have been necessarily rendered.” But this language of the Secretary was that which the statute required him to use in affixing his approval. As he only approved up to $100, which excluded the clerk’s pay, the language must necessarily be applied only to the services which he approved, and not to those which he disapproved. To hold otherwise would be to say that, although the Secretary rejected the items for clerk hire, he yet approved them. The error below results from considering the Secretary’s certificate as referring to other services than those which he approved. Judgment reversed, and case remanded with directions to render judgment for the United States. HORNE v. GEORGE H. HAMMOND CO. 393 Opinion of the Court. HOBNE v. GEORGE H. HAMMOND COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 86. Argued November 20, 21,1894. —Decided December 17, 1894. When the transcript of the record does not show that the Circuit Court had jurisdiction of a suit, where jurisdiction depends upon citizenship, and counsel, upon their attention being called to the matter, furnish nothing of record to supply the defect, the judgment must be reversed at the costs of the plaintiff in error, and the cause remanded to the Circuit Court for further proceedings. The case is stated in the opinion. Mr. Eugene P. Carver, (with whom was Mr. Robert M. Morse on the brief,) for plaintiff in error. Mr. George Putnam for defendant in error. The Chief Justice : The title of this cause describes plaintiff in error as “ of Chelsea in said district,” and the decedent as “ late of Chelsea,” and the defendant as “ a corporation organized under the laws of the State of Michigan.” The writ and the original declaration do not .appear in the record. The amended declaration commences thus: “ Plaintiff says that she is the widow of the late Granville P. Horne of Chelsea, Suffolk County, Commonwealth of Massachusetts, and that she was duly appointed by the probate court of Suffolk County administratrix of his estate.” As the transcript of the record does not show that the Circuit Court had jurisdiction of the suit, which depended upon the citizenship of the parties, and as counsel, upon having their attention called to the matter, have furnished nothing of record which would supply the defect, the judgment must be reversed at the costs of plaintiff in error, and the cause be remanded to the Circuit Court for further proceedings. Rob- 394 OCTOBER TERM, 1894. Statement of the Case. ertson v. Cease, 97 U. S. 646, 649; Anderson v. Watt, 138 U. S. 694, 702; Timmons v. Elyton Land Co., 139 U. S. 378; Denny v. Pironi, 141 U. S. 121. Reversed and ordered accordingly. SWAN v. HILL. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA. No. 101. Submitted December 4, 1894. —Decided December 17,1894. It was not error in the Supreme Court of the Territory of Arizona to dismiss an appeal when the appeal bond was without obligees, and not conditioned according to law. This was an action brought by John Hill, A. B. Wild, S. B. Curtis and Samuel Summers, in the District Court of Cochise County, against H. C. Herrick and others, including the Boston Mining and Reduction Company, to establish plaintiff’s alleged prior right to the use of the waters of the San Pedro River for irrigation purposes, and to restrain defendants in respect thereof. The defendant company having, previously to the commencement of the action, conveyed its property to Swan, trustee, the latter was made a defendant, as were numerous others averred to be interested in the use of the waters of the river. The case was tried by the court, a jury being waived, and resulted in certain findings of fact and a decree adjudging priority of right to the waters of the river; first, to two of the defendants; second, to plaintiffs; third, fourth and fifth, to various named defendants, respectively; and that the defendant company, and those claiming under it, or the trustee, were entitled to none of the waters for purposes of irrigation as against any of the parties until the other rights as established were satisfied. The cause was dismissed as against many defendants without prejudice. Motion for new trial was made and overruled, and Swan, trustee, appealed to the Supreme Court of the Territory, and tendered a paper as and SWAN v. HILL. 395 Statement of the Case. for a bond which was approved and filed by the clerk of the court, and was, omitting the signatures, as follows : “ In the District Court of the First Judicial District of the Territory of Arizona in and for the County of Cochise. “ John Hill et al., Plaintiffs, I TT . . , . , . , ’ I Undertaking for costs and H. C. Herrick et al., Defendants. j damages on appeal. “ Whereas, Robert T. Swan, trustee, one of the defendants in the above-entitled action, is about to appeal to the Supreme Court of the Territory of Arizona from a judgment and decree rendered against him in said action, in the said District Court, and in favor of the plaintiff, to the effect that he, the said defendant, represents a corporation which, under its charter, cannot take the waters of the San Pedro River for the irrigation and cultivation of its lands, and for costs of suit, taxed at $-----, and entered on the 21st day of October, a.d. 1889: “ Now, therefore, in consideration of the premises, and of such appeal, we, the undersigned residents of the county of Cochise and Territory of Arizona, do hereby jointly and severally undertake and promise, on the part of the appellant, that the said appellant will pay all damages and costs which may be awarded against him on the appeal, not exceeding three hundred dollars, to which amount we acknowledge ourselves jointly and severally bound. Witness our hands and seals this 16th day of November, 1889.” The appeal was docketed in the Supreme Court and contin-ued to an adjourned term, when a motion to dismiss it, because, among other reasons, the appeal bond did not comply with the statute of Arizona in that behalf, was made. Section 859 of the Revised Statutes of Arizona provided : “ The appellant or plaintiff in error, as the case may be, shall execute a bond, with two or more good and sufficient sureties, to be approved by the clerk, payable to the appellee or defendant in error, in a sum at least double the probable amount of the costs of the suit of both the appellate court and the court below, to be fixed by the clerk, conditioned that such appel- 396 OCTOBER TERM, 1894. Syllabus. lant or plaintiff in error shall prosecute his appeal or writ of error with effect, and shall pay all the costs which have accrued in the court below, or which may accrue in the appellate court.” Rev. Stat. Arizona, 1887, c. 20. The motion was sustained upon that ground, the appeal dismissed with costs, and Swan, trustee, brought the case to this court. Mr. A. T. Britton and Mr. A. B. Browne for appellant. No appearance for appellees. The Chief Justice : The alleged bond had no obligees, and was not conditioned according to law. No application to file a sufficient bond was made. The Supreme Court of Arizona did not err in dismissing the appeal, and its judgment is Affirmed. In re RICE, Petitioner. ORIGINAL. No number. Submitted December 3,1894. — Decided December 17,1894. A party is entitled to a writ of prohibition as a matter of right where it appears that the court whose action is sought to be prohibited had clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, and that he objected to the jurisdiction at the outset, and has no other remedy. But where there is another remedy, by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary; and it is not obligatory where the case has gone to sentence, and the want of jurisdiction does not appear on the face of the proceedings. A writ of mandamus cannot be issued to compel the court below to decide a matter before it in a particular way, or to review its judical action had in the exercise of legitimate jurisdiction. A writ of mandamus cannot be used to perform the office of an appeal or writ of error, even if no appeal or writ of error is given by law. The fact that, in the administration of the assets of an insolvent corporation in the custody of receivers, summary proceedings are resorted to, does IN RE RICE, Petitioner. •397 Statement of the Case. not, in itself , affect the jurisdiction of the Circuit Court, as having proceeded in excess of its powers, and, where notice has been given and hearing had, the result cannot properly be interfered with by mandamus. Receivers of the Philadelphia and Reading Railroad and Philadelphia and Reading Coal and Iron Companies were appointed February 20,1893, by the Circuit Court for the Eastern District of Pennsylvania, upon a bill for foreclosure filed by a holder of third preference income bonds of those companies. Leave was subsequently granted the receivers to issue certificates for the purpose of paying wages and other preferred claims. The receivers and the railroad company filed a petition September 25, 1894, for authority to enter into an agreement for the partial readjustment of the affairs of the Philadelphia and Reading Railroad and Coal and Iron Companies, and to make the payments therein provided, if the plan were carried into effect. The Circuit Court ordered that the petition should be heard on October 15, 1894, at ten o’clock a.m., and that notice of the hearing should be given by advertisement in newspapers published in New York, Philadelphia, and in the London Times. At the time appointed the hearing was begun, but could not be completed by reason of the pressure of trial business, and the court suggested that, to avoid delay and in relief of counsel, some of whom were not residents of Philadelphia, the petition might be referred to a special master, and that the arguments in the master’s office might be stenographically reported, and would be considered on the coming in of the master’s report as if they had been made in court. This suggestion was accepted, and thereupon the order of reference was made, and the master subsequently filed his report, including the arguments as taken down at length. Application was made for a further hearing which was denied, the report of the master confirmed, and the order prayed for in the petition entered. The report of the master stated that the companies “ have outstanding prior general mortgage bonds, amounting to 844,491,188.77, bearing four per cent interest, maturing semiannually, January and July 1st, which for the past eighteen months is in arrear and unpaid. The receivers, under an order 398* OCTOBER TERM, 1894. Statement of the Case. made July 6th, 1893, authorizing them ’ to issue receivers’ certificates, have issued them to the amount of $3,640,000: The Philadelphia and Reading Railroad Company also owe other general, well-secured indebtedness to the amount of $3,843,000, and further indebtedness, with interest, aggregating $7,533,000, for necessary equipment, for which a large part of the value thereof has been paid, leaving a valuable equity of the company therein over the said debt therefor. The receivers, upon the payment of the said secured general indebtedness, will have $10,000,000 of 5 per cent collateral trust gold bonds of the Philadelphia and Reading Railroad Company, secured by stocks and bonds of its associated companies, which are a valuable and necessary part of its system, to dispose of for payment of the said classes of indebtedness, which, by reason of priority of liens, or value of securities pledged therefor, are entitled to a preference in the disposition of the proceeds of the said collateral trust bonds, over other indebtedness of the company. Some of the said general mortgage bondholders have combined to enforce foreclosure of their mortgage, under due legal proceedings.” The report then set forth the proposed plan of readjustment which, in brief, provided for the purchase of the overdue and maturing coupons of the general mortgage bonds of the Philadelphia and Reading Railroad Company and an extension of the time of payment for ten years from the date of each purchase, and for the sale of ten million five per cent collateral trust bonds to the stockholders and junior bondholders of the company at par. Such stockholders and bondholders as were unable or unwilling to purchase the bonds at par were given the privilege of making a cash contribution, by way of a gift, of three million dollars, and in that event a syndicate had been formed to take and pay for the bonds the sum of seven million dollars. In case the plan should become effective, and only upon that condition, the receivers were to pay the purchasers of the coupons, who were to extend them for ten years, a commission of two and one-half per cent, and to the purchasers of the collateral trust bonds a like commission of two and one-half per cent. If the plan IN BE RICE, Petitioner. 399 Statement of the Case. were carried into effect, the company would obtain an extension upon its general mortgage bonds of ten years, and sell ten million of its collateral trust bonds at par, for whether the stockholders and junior security holders purchased and paid for the bonds themselves at par, or the syndicate should take them at seventy per cent and the stockholders and junior bondholders paid the remaining thirty per cent as a cash donation, the result would be the same. The plan also provided for the creation of a voting trust whereby the right of the stockholders to elect six managers and the president under the charter of the company was distributed among the general mortgage bondholders, the income bondholders, and the stockholders, under a system of registration of the bonds. The readjustment agreement was to be taken in connection with a previous agreement between the general mortgage bondholders in respect of foreclosure, and it is averred that since the order complained of was entered, sufficient of the general mortgage bonds have been deposited to enable foreclosure to go forward if the readjustment plan should fail, and reorganization to be reached in that way. The master said: “ In any event, whether of success of the scheme, or of foreclosure, because of the priority of the lien of the coupons and interest of the general mortgage bonds, and the receivers’ certificates and the salvage of the securities pledged for the secured indebtedness and of the equipment, the debts which are proposed to be paid out of the said moneys to be raised, would be payable out of the proceeds of the collateral trust bonds and their security, in preference to the income mortgage bondholders, unsecured general indebtedness and stockholders. The coupons of the general mortgage bonds carry 6 per cent interest from their maturity. Too small a part of those bonds are registered to warrant a discrimination against the small amount of interest thereon, which will not carry interest from maturity. The counsel for the receivers state that the equipment and the other well-secured obligations proposed to be paid also carry 6 per cent interest. The collateral trust bonds proposed to 400 OCTOBER TERM, 1894. Statement of the Case. be sold carry 5 per cent interest. No substantial offer of better prices for the assets proposed to be sold in this plan was made, much less in the mode required by courts from parties opposing the consummation of judicial sales, in security for a substantial better price.” The master found that the commissions provided for were not unreasonable ; that it was not probable that, under a foreclosure, the collateral trust bonds or their security would produce more; that it was the duty of the receivers to pay or provide for the interest upon the general mortgage bonds to avoid foreclosure; that an investigation of the causes of the fact that the receivers had not the means to pay the present default upon the general mortgage interest, or the other pressing indebtedness, would not aid in the consideration of the present duty of the court and receivers; that the action asked of the court was entirely for the administration of certain assets in the receivers’ hands for the payment of pressing debts, and the authority to the receivers and company was to be granted contingently upon the subsequent approval of the security’ holders and stockholders, all the parties in interest ; that under the petition there was no question of rival plans of organization; that there was no other scheme pending to avoid the impending foreclosure; and that the receivers were not acting or asking for authority otherwise than with strict impartiality to the several interests involved, while the refusal of the prayer of the petition “ would aid its opponents in depriving the whole body of the rest of the security holders and stockholders, of the opportunity of approving and consummating the scheme.” He concluded that the granting of the prayer of the petition would not probably be misunderstood by the parties in interest, and even if it were, that fact, or that they would thereby authorize foreclosure, if the plan proved unsuccessful, should not prevent the action of the court otherwise proper ; that although the plan disposed of a large amount of the assets, this was not unadvisable, as it also disposed of a commercially equal amount of indebtedness, which would in any event absorb the proceeds of those, or an equal amount of other assets; that any lien not before the IN RE RICE, Petitioner. 401 Statement of the Case. court or charter rights would not be affected without the consent of those interested, “ unless of a very small minority, whose rights would be necessarily entirely protected in the usual manner in such cases; ” “ that the provisions for commissions are only an element of the net price to be obtained for the assets to be disposed of, and do not impair the obligation of the income mortgages ; ” that certain provisions of the plan for a voting trust were not invalid and furnished no ground of objection to the granting of the prayer; and that a full accounting or statement of all the affairs of the company was not necessary for the proper consideration of the questions involved. The Circuit Court, in granting the application and entering the order prayed for, observed: “The order now to be made does not approve the proposed plan of reorganization, nor is either approval or disapproval thereof to be implied from it. The question of the wisdom and expediency of adopting any such scheme is for solution and determination by the persons interested, and no attempt to coerce their judgment or control their action should be made either by the court or the receivers. But nothing of that sort is involved in the authority now asked and given. It imposes no constraint, but leaves those who have the right to accept or to reject the plan referred to wholly free to do the one or the other, as they may see fit. It sanctions the raising of money by rightful means upon reasonable terms and for proper objects, and it is not a valid ground of objection to it that it also renders feasible, in case of due acceptance, the only reorganization project which is known to exist. The receivers should not enlist on either side in conflicts amongst those interested in the property they have in charge, but the neutrality, which it is their duty to observe, is not departed from by facilitating any plan which may be proposed for the general benefit, provided, that to all alike, and with regard to every plan advanced in good faith, the same facilities be indifferently accorded ; and the court, whilst it will not pass upon the comparative merits of rival schemes of reorganization, will regard with satisfaction any and every legitimate effort to terminate this receivership.” vol. clv—26 402 OCTOBER TERM, 1894. Opinion of the Court. The petitioner subsequently made application to the Circuit Court to set aside the decretal order upon the receivers’ and companies’ petition, and for leave to file a demurrer, plea, and answer to that petition; and that if the demurrer or plea should be overruled, a reference be had, and evidence adduced for and against the proposed action, and for a stay in the meantime ; and, in the alternative, that the decretal order be opened with leave to petitioner to file, nunc pro tunc, such demurrer, plea, or answer, and with leave to file, nunc pro tunc, exceptions to the master’s report upon the ground that such proceedings had been had and decree made without regard to the rules and regulations of practice; and for general relief ; which application the Circuit Court denied. Petitioner thereupon applied to this court for leave to file a petition for a writ of prohibition to prohibit the Circuit Judge from further proceeding upon the petition of the receivers, and from enforcing or carrying out the decree thereunder; and for a writ of mandamus directing the Circuit Judge to cause securities, deposited under the proposed plan, to be returned to their owners, and to restore the parties to their original positions, or to vacate the decree and require the parties in interest to be brought in, and thereafter to proceed according to the rules and forms of law for such cases made and provided. Mr. Nathan Bijur for petitioner. Mr. Thomas Hart, Jr., and Mr. Samuel Dickson, opposing. Mb. Chief Justice Fuller, after stating the case, delivered the opinion of the court. Without discussing the various matters urged upon our attention by counsel for the petitioner, it is sufficient to say that we are of opinion that the leave asked for cannot be granted. 1. Where it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset and has no other remedy is entitled to a writ of prohibition as a matter IN RE RICE, Petitioner. 403 Opinion of the Court. of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a . stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory where the case has gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings. Smith v. Whitney, 116 U. S. 167, 173 ; In re (Hooper, 143 IT. S. 472, 495. Tested by these rules, we are clear that a proper case is not made for awarding the writ of prohibition. 2. The writ of mandamus cannot be issued to compel the court below to decide a matter before it in a particular way, or to review its judicial action had in the exercise of legitimate jurisdiction. The writ cannot be used to perform the office of an appeal or writ of error, even if no appeal or writ of error is given by law. American Construction Company v. Jacksonville Railway, 148 IT. S. 372, 379. The Circuit Court has proceeded to judgment in the premises, and we cannot revise and reverse its decision by resort to this writ in the manner proposed, nor can we command it to adjudicate upon the rights of parties not before it, by directing it to cause securities which may have been deposited to be returned to their owners, and to restore the parties to their original positions. Still less can we direct the hearing of further argument, because counsel may .consider that the opportunity for the expression of his views and the presentation of objections has not been as ample as in his opinion should have been afforded. The mere fact that, in the administration of the assets of an insolvent corporation in the custody of receivers, summary proceedings are resorted to, does not in itself affect the jurisdiction of the Circuit Court as having proceeded in excess of its powers, and, where notice has been given and hearing had, the result cannot properly be interfered with by mandamus. Ex parte Parsons, 150 IT. S. 150. We perceive no ground for the extraordinary interposition of this court by the issue of either of the writs applied for. Leave denied. 404 OCTOBER TERM, 1894. Statement of the Case. DICK v. FORAKER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 89. Submitted November 15, 1894. — Decided December 17,1894. The Circuit Court of the United States for the Eastern District of Arkansas has jurisdiction of a suit in equity, brought by a citizen of Ohio against a citizen of Illinois, to remove a cloud from the title to real estate situated in that district. Without the statutory notice required by the Arkansas statute of March 12,1881, No. 39, in proceedings for the fixing of tax liens for unpaid taxes upon lands in the State, and the sale of the lands for the non-payment thereof, the court can take no jurisdiction, and all proceedings therein are void; and the fact that the State appeared in such a suit where that notice had not been given, did not give the court jurisdiction, or render the sale valid. The appellee, a citizen of the State of Ohio, brought his complaint in the Circuit Court of the United States for the Eastern District of Arkansas against the appellant, a citizen of the State of Illinois. The bill sought to remove a cloud from a title held by complainant, and charged, in substance, that under an act of the legislature of Arkansas, approved March 12, 1881, and an act amendatory thereof, approved March 22, 1881, a decree was rendered in the Ashley County circuit court, directing the sale of certain lands, for the purpose of realizing taxes due upon them. That under this decree a sale was made on September 15, 1884, by a commissioner of the court; that at said sale the complainant became a purchaser of the property, a description of which was given in the bill. That the proceedings, as well as the sale, were in accordance with the statute. That the lands thus purchased were not redeemed as prescribed by law, and accordingly the court ordered the commissioner to execute a deed therefor, which the commissioner did on May 15, 1887, and the deed was recorded in the proper office. That after this purchase the defendant (appellant here) purchased through the commis- DICK v. FORAKER. 405 Statement of the Case. sioner of lands of the State of Arkansas the said lands from the State, as forfeited for the non-payment of taxes; that the commissioner wrongfully and without authority of law, and in disregard of the rights of complainant, executed deeds for the lands to the defendant, which deeds were recorded, and, taken all together, purport to convey all of the land purchased by the complainant under the previous sale to him ; that the deeds thus executed to the defendant, while they convey no title, constitute a cloud upon the complainant’s title, and their appearance upon the record impairs the value of his property. The bill, moreover, averred that the land was vacant and in the actual possession of neither complainant nor defendant. The prayer of the bill was that the deeds made to the defendant be cancelled, and that the complainant’s title to said land be quieted as against the defendant and all claimants under him. The defendant demurred to the jurisdiction of the court, and upon the overruling of his demurrer answered, averring the validity of the sale made him by the commissioner of lands, and claiming that the sales to the complainant under the proceedings in the Ashley County court were absolutely void, because there was no law authorizing them, because the court had no jurisdiction of the subject-matter, and because of fatal irregularities in the proceedings themselves. The court below decreed in favor of the complainant. From this decree the cause was brought here on appeal. The defendant’s title is derived from_a sale made by the commissioner of lands of the State of Arkansas, treating the lands as forfeited to the State, this sale having been made subsequent to the proceedings upon which the complainant relied as his muniment of title. The statutory provisions authorizing the proceedings upon which complainant’s title rests are found in the Laws of Arkansas of 1881, page 89, Act of March 12, 1881, No. 39, and read as follows: “ Sec. 1. That hereafter any citizen of this State, who shall give security for cost, may file a complaint in equity in the name of the State in the court having equity jurisdiction in the county in which the lands lie, setting forth that taxes are 406 OCTOBER TERM, 1894. Statement of the Case. due on lands to be therein described, or that for any reason lands lying in the county have not been assessed for any one or more years, and praying that a lien may be fixed on such lands, by a decree of the court, for such unpaid taxes, and that the lands may be sold for the non-payment thereof. The county court of any county may direct such complaint to be filed in the name of the county ; and when it shall be filed in pursuance of such direction, it shall be prosecuted by the attorney for the county, or by some attorney to be retained for that purpose. . . . “ Seo. 2. On filing of such complaint, the clerk of the court shall enter on the record an order, which may be in the following form: “ ‘ State of Arkansas on relation of-------, plaintiff, v. Cer- tain lands on which taxes are alleged to be due, defendant. “1 Now, on this day came said plaintiff, and files here in court his complaint, in which he sets forth that there are certain taxes due on the following lands: [Here insert description of the lands.] “ ‘ Now, therefore, all persons having any right or interest in said lands, or any of them, are required to appear in this court within forty days from this date, then and there to show cause, if any they can, why a lien shall not be declared on said lands for unpaid taxes, and why said lands shall not be sold for non-payment thereof.’ “ Sec. 3. The clerk of said court shall at once cause a copy of said order to be published for two insertions in some newspaper published in the county, and, if there is no newspaper published in the county, he shall cause a copy of said order to be posted at the door of the court-house of the county, or of the room in which the court is held, and such publication shall be taken to be notice to all the world of the contents of the complaint filed as aforesaid, and of the proceedings had under it. “ Sec. 5. At the end of the forty days mentioned in section 2 of this act, the clerk shall enter upon the record a decree pro confesso, covering all lands named in the complaint, regarding which no answer has been filed, which order may be in the following form: DICK v. FORAKER. 407 Statement of the Case. “ ‘ State of Arkansas on the relation of----, plaintiff, -y. Certain lands on which taxes are alleged to be due, defendant. “‘It appearing that the order herein made, requiring the owners of the lands in this suit to appear and show cause, if any they could, why a lien should not be declared on certain lands, named in the complaint herein, has been duly published in the manner required by statute, and that no answer has been put in as to the following tracts or parcels of land, that is to say: [Here describe the lands.] “ ‘ It is now, therefore, ordered that the complaint be taken as true and confessed as to said lands above described.’ ” In order to make out his case, the complainant offered the record of the proceedings in the Ashley County circuit court, from which his title took its origin. The record as offered is in a very imperfect state, but it appears therefrom that on May 4,1884, on the relation of W. H. Arnold, a bill was filed, which, after setting out the above provisions of Arkansas law, substantially averred that upon certain lands described in an exhibit annexed, certain taxes had been extended which were past due, and other taxes had been extended which were unauthorized by law; that in pursuance of a warrant for the collection of taxes on these lands, the collector had demanded both the lawful and the unlawful taxes, and neither were paid, and the lands were returned as delinquent, and were forfeited and sold to the State for the taxes for which they had been respectively so returned; that the forfeiture and sale to the State were void, because unlawful taxes had been extended against the land, and also on account of many other irregularities.; that hence the State of Arkansas had no valid title to any of the tracts, but, notwithstanding this fact, the state land commissioner had conveyed part of the land standing in the name of the State to such persons as had applied to purchase, and would convey the balance thereof unless the forfeiture was annulled. This complaint as printed in the record is not complete. It contains no prayer, but the following memorandum is at the foot thereof: 408 OCTOBER TERM, 1894. Statement of the Case. “(Here the lower part of the complaint having become worn out and destroyed, it is impossible to furnish a copy of the same or the signature to the same.) The complaint was regularly filed, but it is also worn too much to be copied. — Clerk.” Annexed to the bill is a list of lands, containing among others, those which are claimed by the complainant. There is also the following entry in the record: “ No order appointing G. W. Norman and J. W. Van Gilder masters in chancery found on record, and below will be found the docket entry of the same made on the judge’s docket, to wit: “ Made 9th day of February, 1884, to wit: “George W. Norman and J. W. Van Gilder appointed masters in chancery to extend the taxes on said land before the next term of the court. “ Report of Masters in Chancery. “ June 2, 1884. “ To the Honorable Circuit Court of Ashley County: “ The undersigned, masters in chancery, appointed to extend the taxes in the case now pending in said court on the relation of W. H. Arnold w.. Certain Lands upon which it is alleged taxes are due, beg leave to report that they have discharged said duty as follows, by consent of parties representing the State, the county, and the attorneys who brought the suit against said lands: “The taxes, penalties, and costs were fixed at 15 cents per acre. Of this amount four cents is to be paid to the county, two cents to the State, and the balance appropriated to expenses as follows: The attorneys, 3200 dollars; to clerk, 2500 dollars; to printer, 1250 dollars; to com’r, 1000; to masters in chancery, 1000, and the excess that may be realized above these amounts be distributed to the State and county in proportion to two to one in favor of the county. “ In making the extension aforesaid, we were of the opinion that the said six cents per acre about covered the average of taxes due on said lands, as the alleged forfeitures occurred at different periods of time. DICK r. FORAKER. 409 Statement of the Case. “We further report that we are fully satisfied that a sale of the lands embraced in this report thus returned to the tax books, the settling of disputed titles, etc., will inure to the benefit of the entire community; and we further report that we find certain lands marked on the bill were claimed by parties who have made to us satisfactory showing that the said lands were improperly thereon, and that said parties claimed that the taxes thereon had been paid, and that the title of the State to certain other lands was good. “ In each of said cases we have dismissed said lands, and we desire the record in this case should show said fact of dismissal. “John W. Van Gilder. . “ Geo. W. Norman. “Filed June 2, 1884. “ E. L. Thomson, CVlc, “ By Jackson, D. CP It is to be inferred, of course, that the masters here named were regularly appointed. On June 2, 1894, the following was entered of record: “It appearing that the order herein made requiring the owners of the lands in this suit to appear and show cause, if any they could, why a lien should not be declared on certain lands named in the complaint herein, has been duly published in the manner required by statute, and that no answer has been put in as to the following tracts or parcels of land — that is to say : [Here follows a description of the land.] “ And it further appearing that the creditor of the State, the relator, the prosecuting attorney of the 10th judicial district, and the judge of the county of Ashley have appeared and consented that a decree should go against the above-described lands for the taxes, penalty, and costs assessed against them as fixed by the master’s report filed herein, it is therefore ordered, adjudged, and decreed that the amount of taxes, penalty, and costs above set forth are due on said lands, and that a lien for said taxes, penalty, and costs on said lands be fixed 410 OCTOBER TERM, 1894. Opinion of the Court. by this decree; and it is further ordered that, if said sum of money so adjudged against said lands shall not be paid within twenty days from the 3d day of June, 1884, the said lands shall be sold by a commissioner to be appointed by the chancellor, on the notice and’at the place prescribed bylaw; and it is further ordered that Thos. S. Stilwell be, and he is hereby, appointed as special commissioner of this court, and that, having made the publication required by law, said commissioner proceed to expose the said lands for sale on Monday the 21st day of July, 1884, at the court-house door, in the town of Hamburg, and that said sale continue from day to day till all of said lands be sold: Provided, That said lands are not to be sold for an amount less than the taxes, penalty, and costs herein assessed against each of said tracts of said lands, and that he report his action herein to the next term of this court. It is further ordered that upon sale aforesaid said commissioner pay the fees and costs as follows, viz.: “ To the attorneys, thirty-twTo hundred and fifty (3250) dollars ; to the clerk, twenty-five hundred (2500) dollars; to the printer, twelve hundred and fifty (1250) dollars; to commissioner, one thousand (1000) dollars, and to the masters, one thousand (1000) dollars ; and if enough of said — are not sold to pay the above sums, that the commissioner pay pro rata” The execution of this order was postponed by direction of the court, but on September 14, 1884, the lands claimed by complainant were adjudicated to him, and on May 14, 1887, upon the expiration of the period allowed for the redemption, the commissioner made to complainant a deed, which was approved by the court. Mr. W. L. Terry for appellant. J/r. D. W. Jones for appellee. Mr. Justice White, after stating the case, delivered the opinion of the court. The suit was one to remove a cloud from the title to real estate situated in the district where the suit was brought. DICK v. FORAKER. 411 Opinion of the Court. The defendant was a citizen of another State. The case was obviously within the jurisdiction of the court. Revised Statutes, § 738; Act of March 3, 1875, c. 137, § 8, 18 Stat. 470; Act of August 13, 1888, c. 866, § 5, 25 Stat. 433; Mellen v. Moline Malleable Iron Wbr&s, 131 U. S. 352; Arndt v. Griggs, 134 U. S. 316 ; Greeley v. Lowe, ante, 58. The contention is that the law giving jurisdiction, as against a person not a citizen of the district where suit is brought to remove a cloud from the title to real estate, situated therein, applies only to cases where there are two or more defendants, at least one of whom must be found in the district where the suit is brought; that the jurisdiction exists to entertain a suit, like the one before us, where there are two or more defendants, but not where there is only one. It was admitted that this contention is unsound as applied to Rev. Stat. § 738, but it is insisted that the point is well taken in consequence of a change resulting from the reenactment of Rev. Stat. § 738, to be found in section 8 of the act of March 3, 1875. The Revised Statutes gave the right to bring such a suit where “ any defendant” resided out of the district. The act of 1875 gives the right “where one or more” may so reside. We see no force in this argument, which in effect eliminates the word “ one ” from the statute and replaces it by the word “ two,” thus causing it to read “two or more,” instead of “one or more.” The suggestion that as the words “ one or more,” in section 737, Rev. Stat, contemplated a controversy in which two or more defendants would be involved, therefore the words “one or more” mean the same in the Act of 1875, is fallacious. Section 737 provides for a case where there are “ several defendants ” and “ one or more ” may be outside of the district; the Act of 1875, on the contrary, provides for a case where “ one or more of the defendants ” may be outside of the district, the difference between the two being that which exists between “ one or more of several ” and “ one or more.” The demurrer was, therefore, correctly overruled. The act of the Arkansas legislature which we have cited provides that on the filing of the complaint with the clerk, an 412 OCTOBER TERM, 1894. Opinion of the Court. order shall be entered on the record, notifying all persons having any right or interest in the. lands sought to be sold to appear within forty days, and show cause why a lien should not be declared on said land for unpaid taxes, and why said land should not be sold for non-payment thereof. The act directs the clerk to cause a copy of this order to be inserted twice, in a newspaper published in the county, and if there be no such newspaper to post a copy at the court-house door. It further declares that such publication shall be taken to be notice to all the world of the contents of the complaint. These are the only provisions made in the act for notice to the land owner. The proceedings leading up to the tax sale, as they appear on the record before us, do not include the required notice nor any order therefor, nor is it shown that any such notice was put on record in the course of the tax sale proceedings. It is true that the order directing the sale recites: “ It appearing that the order herein made requiring the owners of the land in this suit to appear and show cause, if any they could, why a lien should not be declared on certain land, has been duly published in the manner required by statute,” etc. This indirect reference to the notice is the only record evidence that such a notice was made, put on record, or published. In Gregory v. Bartlett, 55 Arkansas, 30, 33, the Supreme Court of that State, having before it a case in which the notice required by law under the terms of the second section was not properly given, said: “Without the statutory notice, therefore, there can be no jurisdiction. If the clerk makes the warning order, as the second section of the act requires, but fails to publish or post it, and that fact appears in the judgment record, there could be no justifiable pretence of jurisdiction. If he publishes the statutory warning without first making the order required by section 2, the question is, does he make a legal publication ? In other words, is he authorized by the statute to make publication when there is no previous order of record ? If he is not so authorized, then the publication is without authority and is not legal notice to the owner of the land. . . . When this requirement of the statute is complied with, it furnishes to the DICK v. FORAKER. 413 Opinion of the Court. owner of delinquent lands a means of information which the statute designed he should receive. Searching the records and finding no order for a proceeding against his land, he had a right to presume that none existed. There is nothing in the statute to indicate that the legislature considered the entry of the order upon the record as of any less significance than the publication of it. In a section of the act where a form of a decree to be entered is given, it is made to recite that the order was entered of record as well as that it was published; and the requirement as to publication is that a copy of the record entry shall be published. The order is the sole authority for the publication, and the evidence of it which the statute requires is the record entry. . . . “ The statute does not authorize the clerk to make the order in any manner other than by entry on the record, and authorizes publication of nothing except a copy of the record. To say that the clerk can dispense with the record and make his entry, in the first instance, in a newspaper, would be to disregard a plain provision of the statute and dispense with one of the means the law affords for imparting information to the land owner. But when a statutory provision is plain, and is made to aid in the accomplishment of a useful end, it cannot be treated as merely directory, and so be disregarded. Especially does that rule apply to proceedings where publication is relied upon as a substitute for personal service. Bush v. Visant, 40 Arkansas, 124; Brodie v. Skelton, 11 Arkansas, 120. • . . No process was ever issued in the cause in which the challenged decree was rendered ; the court’s determination of any question was therefore coram non, judice, binding upon no one. . . . The recital of the decree that there was proper notice to the parties in interest is not conclusive of that fact, but must be read in connection with that part of the record which gives, or is required to give, the official evidence of jurisdiction, as prescribed by statute. Boyd n. Roane, 49 Arkansas, 397; Settlemier v. Sullivan, 97 U. S. 444; G alpin v. Page, 18 Wall. 350. “ If such evidence is not required by the statute to be placed upon the record, and the record recites or is silent as to the 414 OCTOBER TERM, 1894. Opinion of the Court. facts necessary to show jurisdiction, their existence will be presumed, but no presumptions are indulged when the evidence is stated upon the record, Boyd v. Roane, 49 Arkansas, 397, or where the statute requires the jurisdictional facts to appear of record and they are not made so to appear.” Thus the Supreme Court of Arkansas, in interpreting a statute of that State, has held that the making of the record entry of the notice required, and also the proof of its publication are indispensable to the validity of proceedings under the statute; that such recorded notice is essential to give jurisdiction to the court, and that where the notice is not of record the proceedings are absolutely void. As we have seen, this record does not show either notice or publication. The appellee, then, seeks to have a cloud removed from his title when he holds no title whatever ; for, of course, it follows that if the court was without jurisdiction the decree by it rendered was utterly void, and the sale, having been made under the decree, was equally vicious and wholly null. The rule in ejectment is that the plaintiff must recover on the strength of his own title, and not on the weakness of the title of his adversary. A like rule obtains in an equitable action to remove a cloud from a title, and title in the complainant is of the essence of the right to relief. In Frost v. Spitley, 121 IT. S. 552, 556, we said: “Under the jurisdiction and practice in equity, independently of statute, the object of a bill to remove a cloud upon title, and to quiet the possession of real estate, is to protect the owner of the legal title from being disturbed in his possession, or harassed by suits in regard to that title; and the bill cannot be maintained without clear proof of both possession and legal title in the plaintiff. Alexander v. Pendleton, 8 Cranch, 462 ; Peirsoll n. Elliott, 6 Pet. 95 ; Orton n. Smith, 18 How. 263; Crews v. Burcham, 1 Black, 352 ; Ward v. Chamberlain, 2 Black, 430. As observed by Mr. Justice Grier in Orton v. Smith, ‘ Those only who have a clear, legal and equitable title to land, connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title.’ 18 How. 265.” The law of Arkansas authorizes a, bill to remove a cloud on DICK v. FORAKER. 415 Opinion of the Court. a title whether or not the complainant be in possession. Act of March 26, 1891, No. 74, Stats, of 1891, 132. By reason of this statute a bill in equity may be maintained in the Circuit Court of the United States by a person not in possession against another who is also out of possession. Holland v. Challen, 110 U. S. 15, 25. But this does not make the complainant’s rights any the less dependent upon title in him nor does it put him in a position to have a cloud removed from a title which has no existence. In Frost v. Spitley, supra, it was said, p. 557: “ A statute of Nebraska authorizes an action to be brought 1 by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.’ Nebraska Stat. Feb. 24, 1873; Rev. Stat. 1873, p. 882. . . . The requisite of the plaintiff’s possession is thus dispensed with, but not the other rules which govern the jurisdiction of courts of equity over such bills. Under that statute, as under the general jurisdiction in equity, it is ‘ the title,’ that is to say, the legal title, to real estate, that is to be quieted against claims of adverse estates or interests. In State v. Sioux City c& Pacific Railroad, the Supreme Court of Nebraska said: ‘ Whatever the rule may be as to a party in actual possession, it is clear that a party not in possession must possess the legal title, in order to maintain the action.’ 7 Nebraska, 357, 376. And in Holland v. Challen, above cited, this court said: ‘ Undoubtedly, as a foundation for the relief sought, the plaintiff must show that he has a legal title to the premises.’ The necessary conclusion is, that Spitley, not having the legal title of the lots in question, cannot maintain his bill for the purpose of removing a cloud on the title.” It is said that the State of Arkansas became a party to the proceedings in the Ashley County court, and is hence bound thereby, and from this is deduced the argument that inasmuch as the defendant derived his title from the State subsequent to the complainant’s purchase, the latter’s title is validated. 41G OCTOBER TERM, 1894. Counsel for the Motion. Stafford v. Watson, 41 Arkansas, 1. But the appearance of the State did not cure the radical defect in the proceedings under which complainant purchased. The notice was essential in order to affect the rights of the owner of the property as against whom the proceedings were initiated and the sale was made. The appearance of the State did not, therefore, give the court jurisdiction or render the sale valid. There are other contentions urged, but they are all covered by what has been already said. They either arise from the erroneous postulate that the complainant’s title is not void, but simply voidable, or are predicated on the equally unsound premise that one having no title can successfully invoke the aid of a court of equity to “ remove a cloud ” from such non-existent title; that is to say, can ask a court to subtract something from nothing. Decree reversed, and case remanded with directions to dismiss the bill. BOBB v. JAMISON. ERROR TO THE SUPREME COURT OK THE STATE OF MISSOURI. No. 267. Submitted December 10,1894. —Decided December 17,1894. Duncan v. Missouri, 152 U. S. 377, affirmed and followed. Motion to dismiss. This cause, after trial below, was argued before the Supreme Court of Missouri, Division No. 2, in banc. The organization of that court is set forth in the statement of facts in Duncan v. Missouri, 152 U. S. 377. After the court had given its opinion and announced its judgment, the plaintiffs in error for the first time raised a Federal question in the cause in a motion for a rehearing. That motion being denied, the case was brought here by writ of error, which writ the defendants in error moved to dismiss. Mr. Thomas J. Howe in support of the motion, AUSTIN v. UNITED STATES. 417 Statement of the Case. Mr. Michael Kinealy, (with whom was Mr. James R. Kinealy on the brief,) opposing. The Chief Justice : The writ of error is dismissed on the authority of Duncan v. Missouri, 152 U. S. 377, and cases cited. Writ of error dismissed. AUSTIN v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 39. Argued October 26, 1894. — Decided December 17, 1894. The act of March 3, 1883, c. Ill, 22 Stat. 804, authorizing the Court of Claims to hear and determine the claims of the successors and representatives of Sterling T. Austin, deceased, for cotton alleged to have been taken from him in Louisiana by the authorities of the United States in 1863,1864, and 1865, “any statute of limitation to the contrary notwithstanding, provided, however, that i.t be shown to the satisfaction of the court that neither Sterling T. Austin, Senior, nor any of his surviving representatives, gave any aid or comfort to the late rebellion, but were throughout the war loyal to the government of the United States,” made the establishment of loyalty in fact, as contradistinguished from innocence in law produced by pardon, a prerequisite to jurisdiction, and the Court of Claims, having found that the claimant was not thus loyal, properly dismissed the petition. Claimant filed a petition in the Court of 'Claims, June 5, 1883, alleging that Sterling T. Austin, of the parish of Carroll, in the State of Louisiana, died in that State July 9,1879; that March 20, a.d. 1883, claimant was duly appointed administratrix of the estate of said decedent, and duly qualified as such; and that her letters of administration were in full force. The petition set up an act of Congress, approved March 3, 1883, c. Ill, 22 Stat. 804, entitled “ An act for the relief of the representatives of Sterling T. Austin, deceased,” which referred the claims of the successors in interest and legal representatives of Sterling T. Austin for cotton taken by the military authorities of the United States during the war to the Court of VOL. CLV—27 418 OCTOBER TERM, 1894. Counsel for Appellant. Claims, to adjust and settle and to render judgment for the net amount realized by the United States therefrom, removing the bar of any statute of limitation, and providing that it be shown to the satisfaction of the court that neither Austin nor any of his surviving representatives “ gave any aid or comfort to the late rebellion, but were throughout the war loyal to the government of the United States.” It was then charged that, in the years 1863,1864, and 1865, the military authorities took from Sterling T. Austin, claimant’s decedent, in the States of Louisiana and Texas, large amounts of cotton; that the United States sold said cotton and realized therefrom various sums, aggregating $367,500, which they appropriated to their own use; that Sterling T. Austin left him surviving a widow and children ; that neither he nor his widow, nor either of his children, “ gave any aid or comfort to the late rebellion, but they and each of them were and was throughout the war loyal to the government of the United States.” Judgment was asked “for the sum of three hundred and sixty-seven thousand five hundred dollars, being the net amount realized by the United States from the sale of the cotton hereinbefore referred to and described.” The averments of the petition were traversed by the United States. The Court of Claims filed findings of fact and a conclusion of law. The court was not satisfied that Sterling T. Austin did not give aid or comfort to the late rebellion, and that he was loyal throughout the war to the government of the United States, and found him disloyal; but the court was satisfied that the surviving representatives did not give any aid and comfort to the late rebellion, but were throughout the war loyal to the government of the United States. The conclusion of law was that “ the court decides upon the foregoing facts that the petition be dismissed.” The opinion of the court, by Weldon, J., will be found in 25 C. Cl. 437. Judgment having been thereupon entered dismissing the petition, claimant appealed to this court. J/r. John C. Fay and Mr. Samuel Shellabarger for appellant. AUSTIN v. UNITED STATES. 419 Opinion of the Court. Mr. Assistant Attorney General Conrad for appellees. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. An act amending the act establishing the Court of Claims was approved March 3, 1863, c. 92, which by its tenth section prescribed a limitation of six years on the prosecution of claims, and in its twelfth section provided “ that in order to authorize the said court to render a judgment in favor of any claimant, if a citizen of the United States, it shall be set forth in the petition that the claimant, and the original and every prior owner thereof where the claim has been assigned, has at all times borne true allegiance to the government of the United States, and whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said government, which allegations may be traversed by the government, and if on the trial such issue shall be decided agajnst the claimant, his petition shall be dismissed.” 12 Stat. 765, 767. On the same day an act was passed authorizing the Secretary of the Treasury to appoint special agents to collect and receive all abandoned or captured property in any State or Territory, or any portion of any State or Territory, of the United States designated as in insurrection, the second section of which required that “ all sales of such property shall be at auction to the highest bidder, and the proceeds thereof shall be paid'into the Treasury of the United States;” and the third section, after making provision for the giving of bonds and the keeping of books, “showing from whom such property was received, the cost of transportation, and proceeds of the sale thereof,” proceeded thus: “ And any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims; and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given any aid or comfort to 420 OCTOBER TERM, 1894. Opinion of the Court. the present rebellion, to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of such property, and any other lawful expenses attending the disposition thereof.” Act of March 3, 1863, c. 120, 12 Stat. 820. By joint resolution, No. 25, approved March 30, 1868, it was resolved “ that all moneys which have been received by any officer or employé of the government, or any department thereof, from sales of captured and abandoned property in the late insurrectionary districts, under or under color of the several acts of Congress providing for the collection and sale of such property, and which have not already been actually covered into the treasury, shall immediately be paid into the treasury of the United States, together with any interest which has been received or accrued thereon.” 15 Stat. 251. June 25, 1868, an act was approved entitled “An act to provide for appeals from the Court of Claims and for other purposes,” allowing an appeal to the Supreme Court of the United States from all final judgments of the Court of Claims adverse to the United States. The third section of this act provided “ that whenever it shall be material in any suit or claim before any court to ascertain whether any person did or did not give any aid or comfort to the late rebellion, the claimant or party asserting the loyalty of any such person to the United States during such rebellion, shall be required to prove affirmatively that such person did, during said rebellion, consistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion ; and the voluntary residence of any such person in any place where, at any time during such residence, the rebel force or organization held sway, shall prima facie evidence that such person did give aid and comfort to such rebellion and to the persons engaged therein.” c. 71, 15 Stat. 75. On the twentieth of August, 1866, the President issued his proclamation declaring the rebellion suppressed throughout the whole of the United States of America. 14 Stat. 814. And that day was recognized as the close of the rebellion by AUSTIN v. UNITED STATES. 421 Opinion of the Court. an act of Congress passed March 2, 1867, 14 Stat. 422, c. 145, and by this court in United States v. Anderson, 9 Wall. 56. July 4, 1868, the President issued a proclamation of pardon and amnesty to all persons who had directly or indirectly participated in the late rebellion, those under indictment for treason or felony excepted, “ for the offence of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights of property, except as to slaves and except, also, as to any property of which any person may have been legally divested under the laws of the United States” (15 Stat. 702); and on December 25, 1868, 15 Stat. 711, a proclamation of universal amnesty, unconditionally and without reservation, to all persons who had directly or indirectly participated in the rebellion, “ with restoration of all rights, privileges and immunities under the Constitution and the laws which have been made in pursuance thereof.” In the case of United States v. Anderson, supra, decided at December term, 1869, it was ruled that it was not necessary, under the Abandoned and Captured Property Act, for a party preferring his claim in the Court of Claims, for the proceeds of property taken and sold under it, to prove in addition to his own loyalty the loyalty of the person from whom he bought the property, it having been purchased by him in good faith and without intent to defraud the government or any one else. Mr. Justice Davis, delivering the opinion of the court, said : “ During the progress of the war it was expected that our forces in the field would capture property, and, as the enemy retreated, that property would remain in the country without apparent ownership, which should be collected and disposed of. In this condition of things Congress acted. While providing for the disposition of this captured and abandoned property, Congress recognized the status of the loyal Southern people, and distinguished between property owned by them, and the property of the disloyal. It was not required to do this, for all the property obtained in this manner could, by proper proceedings, have been appropriated to the necessities of the war. But Congress did not 422 OCTOBER TERM, 1894. Opinion of the Court. think proper to do this. In a spirit of liberality it constituted the government a trustee for so much of this property as belonged to the faithful Southern people, and while directing that all of it should be sold and its proceeds paid into the treasury, gave to this class of persons an opportunity, at any time within two years after the suppression of the rebellion, to bring: their suit in the Court of Claims, and establish their right to the proceeds of that portion of it which they owned, requiring from them nothing but proof of loyalty and ownership.” p. 65. In United States v. Padelf ord, 9 Wall. 531, also decided at December term, 1869, Padelf ord, the owner of the property, had taken the oath, and secured the benefit of the proclamation of pardon issued by President Lincoln, December 8, 1863, 11 Stat. 737, before the property was seized; and it was held that his status as a loyal citizen had been thereby restored, and with it all his rights and property, although he had previously given aid and comfort to the rebellion; and the Chief Justice remarked : “If, in other respects, the petitioner made the proof which, under the act, entitled him to a decree for the proceeds of his property, the law makes the proof of pardon a complete substitute for proof that he gave no aid or comfort to the rebellion.” The act making appropriations for the legislative, executive, and judicial expenses of the government for the year ending June 30, 1871, was passed July 12, 1870, c. 251, 16 Stat. 230, 235, and contained an appropriation of $100,000 for payment of judgments which might be rendered by the Court of Claims, to which a proviso was attached, as follows: “ Provided, That no pardon or amnesty granted by the President, whether general or special, by proclamation or otherwise, nor any acceptance of such pardon or amnesty, nor oath taken, or other act performed in pursuance or as a condition thereof, shall be admissible in evidence on the part of any claimant in the Court of Claims as evidence in support of any claim against the United States, or to establish the standing of any claimant in said court, or his right to bring or maintain suit therein; nor shall any such pardon, amnesty, AUSTIN v. UNITED STATES. 423 Opinion of the Court. acceptance, oath, or other act as aforesaid, heretofore offered or put in evidence on behalf of any claimant in said court, be used or considered by said court, or by the appellate court on appeal from said court, in deciding upon the claim of said claimant, or any appeal therefrom, as any part of the proof to sustain the claim of the claimant, or to entitle him to maintain his action in said Court of Claims, or on appeal therefrom ; but the proof of loyalty required by the twelfth section of the act of March three, eighteen hundred and sixty-three, entitled ‘ An act to amend an act to establish a court for the investigation of claims against the United States,’ approved February twenty-four, eighteen hundred and fifty-five, and by the third section of the act entitled ‘ An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States,’ approved March twelve, eighteen hundred and sixty-three, and by the third section of the act entitled ‘An act to provide for appeals from the Court of Claims, and for other purposes,’ approved June twenty-five, eighteen hundred and sixty-eight, shall be made by proof of the matters required by said sections, respectively, irrespective of the effect of any executive proclamation, pardon, amnesty, or other act of condonation or oblivion. “ And in all cases where judgment shall have been heretofore rendered in the Court of Claims in favor of any claimant on any other proof of loyalty than such as is above required and provided, and which is hereby declared to have been and to be the true intent and meaning of said respective acts, the Supreme Court shall, on appeal, have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdiction : And provided,further, That whenever any pardon shall have heretofore been granted by the President of the United States to any person bringing suit in the Court of Claims for the proceeds of abandoned or captured property under the said act approved March twelve, eighteen hundred and sixty-three, and the acts amendatory of the same, and such pardon shall recite, in substance, that such person took part in the late rebellion against the government of the United States, or was guilty of any act of rebellion against or disloyalty to the 424 OCTOBER TERM, 1894. Opinion of the Court. United States, and such'pardon shall have been accepted in writing, by the person to whom the same issued, without an express disclaimer of and protestation against such fact of guilt contained in such acceptance, such pardon and acceptance shall be taken and deemed in such suit in the said Court of Claims, and on appeal therefrom, conclusive evidence that such person did take part in and give aid and comfort to the late rebellion, and did not maintain true allegiance or consistently adhere to the United States; and on proof of such pardon and acceptance, which proof may be heard summarily on motion or otherwise, the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant.” At December term, 1871, in the case of United States n. Klein, 13 Wall. 128, which was a case decided by the Court of Claims, May 26, 1869, and pending here on appeal filed herein December 11, 1869, this court held, the Chief Justice delivering the opinion, that the Captured and Abandoned Property Act did not confiscate, or in any case absolutely divest, the property of the original owner, even though disloyal, and that by the seizure the government constituted itself a trustee for those who were entitled or whom it should thereafter-wards recognize as entitled; that persons who had faithfully accepted the provisions offered by the proclamation of pardon of December 8, 1863, became entitled to the proceeds of their property thus paid into the treasury, on application within two years from the close of the war; and that the proviso in question was unconstitutional and void, its substance being that an acceptance of a pardon without a disclaimer should be conclusive evidence of the acts pardoned, but should be null and void as evidence of rights conferred by it, both in the Court of Claims and in this court; that the proviso denied to pardons granted by the President the effect which this court had adjudged them to have; that the denial of jurisdiction to this court as well as the Court of Claims was founded solely on the application of a rule of decision, in causes pending, prescribed by Congress, amounting to a rule for the decision of a cause in a particular way; and that the proviso invaded AUSTIN v. UNITED STATES. 425 Opinion of the Court. the powers both of the judicial and executive departments of the government. Mr. Justice Miller and Mr. Justice Bradley dissented, on the ground that, although they agreed that the proviso was unconstitutional, they could not concur in the proposition that under the Captured and Abandoned Property Act there remained “ in the former owner, who had given aid and comfort to the rebellion, any interest whatever in the property or its proceeds when it had been sold and paid into the Treasury or had been converted to the use of the public under that act.” This was followed by Mrs. Armstrong’s Case, 13 Wall. 154, and Par gaud’s Case, 13 Wall. 156. In Carlisle’s Case, 16 Wall. 147, 153, December term, 1872, Mr. Justice Field, speaking for the court, after referring to the foregoing cases, observed : “ After these repeated adjudications, it must be regarded as settled in this court that the pardon of the President, whether granted by special letters or by general proclamation, relieves claimants of the proceeds of captured and abandoned property from the consequences of participation in the rebellion, and from the necessity of establishing their loyalty in order to prosecute their claims. This result follows whether we regard the pardon as effacing the offence, blotting it out, in the language of the cases, as though it had never existed, or regard persons pardoned as necessarily excepted from the general language of the act, which requires claimants to make proof of their adhesion, during the rebellion, to the United States. It is not to be supposed that Congress intended by the general language of the act to encroach upon any of the prerogatives of the President, and especially that benign prerogative of mercy which lies in the pardoning power. It is more reasonable to conclude that claimants, restored to their rights of property, by the pardon of the President, were not in contemplation of Congress in passing the act, and were not intended to be embraced by the requirement in question. All general terms in statutes should be limited in their application, so as not to lead to injustice, oppression, or any unconstitutional operation, if that be possible. It will be presumed that exceptions were intended which would avoid results of that nature.” 426 OCTOBER TERM, 1894. Opinion of the Court. In Hay craft v. United States, 22 Wall. 81, 92, it was held, at October term, 1874, that under the provision of the act of March 12, 1863, that any person claiming to be the owner of captured or abandoned property might “ at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and, on proof . . . that he has never given any aid or comfort to the present rebellion,” receive the proceeds of the sale of such property, a person who had given aid and comfort to the rebellion and who had not been pardoned until after two years from the suppression of the rebellion could not, on then preferring his petition, obtain the benefit of the act, even though in cases generally the limitation of actions in that court was one of six years; that the question was not one of limitation but of jurisdiction, and that the inability of an unpardoned rebel to sue in the Court of Claims did not control the operation of the statute. The court said, through Mr. Chief Justice Waite: “ A sovereign cannot be sued in his own courts, except with his consent. This is an action against the United States in its own Court of Claims. The appellant must, therefore, show that consent has been given to its prosecution. That being done, the jurisdiction of the court is established and he may proceed. Otherwise, not.” The Chief Justice pointed out that the required consent was not contained in the Captured and Abandoned Property Act itself, for the only action there consented to was one to be commenced within two years after the suppression of the rebellion, and that such consent could not be found in the provision of the act of March 3, 1863, reorganizing the Court of Claims, c. 92, 12 Stat. 765, 767, that the court might determine all claims “founded upon . . . any contract express or implied with the government of the United States,” unless there was an implied promise by the United States to pay to every owner of captured or abandoned property, whether loyal or disloyal, the proceeds of his property taken and sold. But that involved the assumption that the Captured and Abandoned Property Act contained an undertaking by the United States, at that time, to receive and hold the property, or its proceeds if sold, AUSTIN v. UNITED STATES. 427 Opinion of the Court. in trust for the use and benefit of the owner, whoever he might be, and that the trust in favor of the owner having then been created, the remedy for its enforcement in the Court of Claims as a contract was restored to a disloyal owner by the operation of the President’s proclamation. Now, the statute was a war measure, and embraced private property abandoned by its owner or liable to capture, and the capture of cotton was legitimate under the circumstances. Mrs. Alexander's Cotton, 2 Wall. 404, 419. As, however, friends as well as foes might suffer in the indiscriminate seizure likely to follow the authority given, it was provided that any owner might, within two years after the suppression of the rebellion, prefer his claim, and upon proof of his ownership and loyalty receive the money realized by the United States. Under the ruling in Klein's case the effect of the act was to provide a reward for submission to the government and the acceptance of amnesty, as well as authority for the seizure of the property, and, according to the doctrine of that case, if a suit was commenced within two years, a pardoned enemy could recover as well as a loyal friend, but the commencement of the suit within the prescribed time was a condition precedent to the ultimate relief. There was no promise, except to such as should commence the suit in time, and upon the trial be in a condition to bring themselves within the requirements of the act. The promise was express and there was no room left for implication. Both the right to persons to demand and receive a restoration of their property taken,'and the remedy by which that right was to be enforced, were created by the same statute, and in such cases the remedy afforded was exclusive of all others. That remedy was the only one of which the Court of Claims, or any other court, had been authorized to take jurisdiction, and as the claimant had neglected to avail himself of that remedy, he was consequently without any, and the Court of Claims was right in concluding that it had no jurisdiction. In Knote v. United States, certain personal property of the claimant had been seized, libelled, condemned, and forfeited by the decree of a District Court, on the ground of his treason, 428 OCTOBER TERM, 1894. Opinion of the Court. and the proceeds paid into the treasury prior to the proclamation of December 25, 1868, after which claimant brought suit for the proceeds, relying on that proclamation, but the Court of Claims, 10 C. CL 397, decided that he was not entitled to recover, and dismissed the petition. The judgment was affirmed by this court at October term, 1877. Knote v. United States, 95 U. S. 149. It was held that the general pardon and amnesty granted by the proclamation of December 25, 1868, did not entitle one receiving their benefits to the proceeds of his property previously condemned and sold under the confiscation act of July 17,1862, after such proceeds had been paid into the treasury of the United States; although a full pardon released the offender from all penalties imposed by the offence pardoned, and restored to him all his civil rights, it did not affect any rights which were vested in others directly by the execution of the judgment for the offence, or which had been acquired by others whilst that judgment was in force. And if the proceeds of the property of the offender had been paid into the treasury, the right to them had so far become vested in the United States that they could only be recovered by him through an act of Congress. Moneys once in the treasury could only be withdrawn by an appropriation by law. Mr. Justice Field, announcing the decision, referred, among other cases, to Oshorn v. United States, 91 U. S. 474, and said: “ An attempt is made by counsel to give some expressions used in the opinion of the court a wider meaning, so as to support the claim here presented; but the language will not sustain the conclusion sought. There was no consideration of the effect of the pardon upon the proceeds of the forfeited property when paid into the Treasury, but only of its effect upon those proceeds whilst under the control of the court in its registry. Any language which seemingly admits of a broader interpretation must be restricted to the facts of the case. There was no intention of expressing any opinion that a pardon could do away with the constitutional requirement as to money in the Treasury; whilst there, it is the property of the United States. . . . The claim here presented rests AUSTIN v. UNITED STATES. 429 Opinion of the Court. upon a supposed implied contract to pay to the claimant the money received as the proceeds of the forfeited property. To constitute such a contract, there must have been some consideration moving to the United States; or they must have received the money, charged with a duty to pay it over; or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake.” In Hart v. United States, 118 U. S. .62, it was decided on appeal from the Court of Claims, (adjudged there June 7, 1880, and, on rehearing, May 16, 1881,) that that court, which had found the claimant to be a person who had “ sustained the late rebellion,” and that the claim accrued before April 13,1861, did not err in deciding that it had no jurisdiction to proceed to judgment, as the payment of such a claim was forbidden by joint resolution No. 46, approved March 2, 1867, 14 Stat. 571; that although before the joint resolution was passed the claimant had received from the President a pardon “ for all offences committed by him arising from participation, direct or implied, in the rebellion,” the pardon did not authorize the payment of the claim, nor did the joint resolution take away anything which the pardon had conferred; and that it was entirely within the competency of Congress to declare that the claims mentioned in the joint resolution should not be paid until the further order of Congress. On the same day that the Austin act was passed, March 3, 1883, an act entitled “ An act to afford assistance and relief to Congress and the executive departments in the investigation of claims and demands against the government,” c. 116, 22 Stat. 485, was approved, of which the fourth section was as follows : “ Sec. 4. In any case of a claim for supplies or stores taken by or furnished to any part of military or naval forces of the United States for their use during the late war for the suppression of the rebellion, the petition shall aver that the person who furnished such supplies or stores, or from whom such supplies or stores were taken, did not give any aid or comfort to said rebellion, but was throughout that war loyal to the government of the United States, and the fact of such loyalty shall be a jurisdictional fact; and unless the said court 430 OCTOBER TERM, 1894. Opinion of the Court. shall, on a preliminary inquiry, find that the person who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the government of the United States throughout said war, the courts shall not have jurisdiction of said cause, but the same shall, without further proceedings, be dismissed.” Twenty years after the passage of the Captured and Abandoned Property Act; nearly fifteen years after the close of the rebellion and the proclamations of amnesty ; twelve years after the decision of Klein’s, Armstrong’s, and Pargoud’s cases; eighteen years after the conversion of the cotton for whose proceeds the suit was brought; fifteen years after the proceeds were covered into the Treasury; and nearly four years after the death of Austin, the act proceeded on was passed. Referring to Austin’s neglect to sue, the Court of Claims remarked : “ This court was open to him until August 20, 1868; ready to adjudicate the claim, in the freshness of the memory of witnesses, then living, and able to testify with absolute certainty. . . . From the facts and circumstances, indicated by the proof, we conclude that the decedent was embarrassed by his inability to establish in this court his adherence to the United States, as required by law ; and from that embarrassment originates his failure to prosecute his case within this jurisdiction.” Loyal or not, he did not bring suit within the time prescribed by either of the acts of 1863, and if disloyal, whether his transgression was obliterated by the proclamation of July 4, or that of December 25, 1868, was not important. Since it cannot be controverted that it is for Congress to determine when and under what circumstances the government may be sued, and that the Court of Claims has the right to entertain jurisdiction of cases against the United Statesand proceed to judgment only by virtue of acts of Congress granting such jurisdiction, and is limited precisely to such cases both in regard to parties and the cause of action as Congress has prescribed, De Groot v. United States, 5 Wall. 419, 431, the inquiry is, whether this suit can be sustained under the act authorizing it to be commenced, on the theory that loyalty in fact was not a condition to the exercise of jurisdiction, and, AUSTIN v. UNI Opinion of on the merits, was rendered ir nesty. The act, c. Ill, 22 Stat. “ That the claims of the succe resentatives of Sterling T. Aust of Carroll, in the State of Louii military and civil authorities of of them, during the years eigh eighteen hundred and sixty-for sixty-five, in the States of Lou: same are hereby, referred to jurisdiction and power in the s such claims, and to render a ji net amount realized by the Ui such cotton as shall appear iron taken by said authorities; and sentatives shall be entitled to re of limitation to the contrary nol ever, That it be shown to the neither Sterling T. Austin, sen representatives gave any aid or but were throughout the war 1< United States.” In Voorhees v. Bank of the I certain acts required to be dor scribed by a proviso, and were h it being stated by Mr. Justice E viso in deeds and laws is to decl not operate, or the authority co unless in the case provided. “ The office of a proviso, gen in Minis v. United States, 15 except something from the en restrain its generalities, or to ex misinterpretation of it, as exten the legislature to be brought wi While we concede that the la invariable meaning to a provis proviso negatived the authori AUSTIN v. UNITED STATES. 431 Opinion of the Court. on the merits, was rendered immaterial by the general amnesty. The act, c. Ill, 22 Stat. 804, reads as follows: “ That the claims of the successors in interest and legal representatives of Sterling T. Austin, deceased, late of the parish of Carroll, in the State of Louisiana, for cotton taken by the military and civil authorities of the United States, or by either of them, during the years eighteen hundred and sixty-three, eighteen hundred and sixty-four, and eighteen hundred and sixty-five, in the States of Louisiana and Texas, be, and the same are hereby, referred to the Court of Claims, with full jurisdiction and power in the said court to adjust and settle such claims, and to render a judgment in said cause for the net amount realized by the United States from the sale of such cotton as shall appear from the evidence to have been so taken by said authorities; and in such action the said representatives shall be entitled to recover as aforesaid, any statute of limitation to the contrary notwithstanding : Provided, however, That it be shown to the satisfaction of the court that neither Sterling T. Austin, senior, nor any of his surviving representatives gave any aid or comfort to the late rebellion, but were throughout the war loyal to the government of the United States.” In Voorhees v. Bank of the United States, 10 Pet. 449, 471, certain acts required to be done previous to a sale were prescribed by a proviso, and were held to be conditions precedent, it being stated by Mr. Justice Baldwin that the effect of a proviso in deeds and laws is to declare that the grant made shall not operate, or the authority conferred shall not be exercised, unless in the case provided. “ The office of a proviso, generally,” said Mr. Justice Story in Minis v. United States, 15 Pet. 423, 445, “ is either to except something from the enacting clause or to qualify or nestrain its generalities, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview.” While we concede that the law does not attach a fixed and invariable meaning to a proviso, we think it clear that this proviso negatived the authority granted beyond the limit 432 OCTOBER TERM, 1894. Opinion of the Court. defined. It operated upon the entire enacting clause, and made loyalty a jurisdictional fact, since the consent to the prosecution of the suit was given upon the condition that that fact should be established. The Court of Claims was vested with jurisdiction to adjust the claim and render judgment, and the representatives of Austin were declared entitled to recover notwithstanding the two-year or the six-year bar, provided Austin were shown to the satisfaction of the court not to have given any aid or comfort to the late rebellion, and to have been loyal throughout the war to the government of the United States, and not otherwise, and the effect of the proviso cannot be confined to the right of recovery merely. Congress in making this requirement in no respect attempted to defeat the operation of the President’s proclamation of fifteen years before, which could not control the power of Congress in the matter of giving or withholding jurisdiction. In declining to bestow jurisdiction in favor of pardoned offenders, whose claims were barred, Congress did not deny its proper constitutional effect to amnesty. To whom the privilege of suit should be accorded was for Congress alone to determine. It is contended that the words in reference to the establishment of loyalty are in substance the same as those used in the third section of the Captured and Abandoned Property Act, and that Congress must be held to have employed them in the Austin act in view of the interpretation of the former act by the decisions of the courts of the United States, and that that interpretation became as much a part of the Austin act as if written out there. If this were so, it would be difficult to assign any reason for the insertion of the proviso so far as Austin was concerned, for it would be made to read, provided, however, that it be shown to the satisfaction of the court that Austin was loyal in fact, although the amnesty proclamations have rendered that immaterial. But it is not so. Undoubtedly Congress framed this act with due regard to the state of decision under the prior act, and hence, instead of making proof of loyalty an integral part of claimant’s case with his ownership of the property and his right to the proceeds, as in the Captured and Abandoned Prop- AUSTIN v. UNITED STATES. 433 Opinion of the Court. erty Act, it made the establishment of loyalty in fact, as contradistinguished from innocence in law produced by pardon, a prerequisite to jurisdiction. Consent to be sued was given only on this condition. Nor do we perceive any ground for imputing the intention to Congress to revive the Captured and Abandoned Property Act for the purposes of this action. This is not the case of the revival of a law by express reenactment, or by the repeal of a repealing clause; and if such had been the intention of Congress, no reason suggests itself why Congress should not have unequivocally said so. Again it is argued that because in the fourth section of the general act of March 3, 1883, the fact of loyalty was stated to be “ a jurisdictional fact,” therefore the proviso of the Austin act should not be construed to have that effect, because, while the same language was used as to the existence of loyalty, its establishment was not in terms expressed to be jurisdictional. But the structure of the two acts was different and required different treatment, and the special act cannot properly be construed as if it were a general act and part of a general system and the change of phraseology in this particular significant. On the contrary, as we have no doubt that the effect of the proviso is such as we have attributed to it, we think the argument for the Government not unreasonable that Congress, in employing the same language in both acts as to the condition of loyalty, did so in effectuation of a common object to be attained by the requirement. As the President’s proclamation could neither give jurisdiction to nor take it away from the Court of Claims, and Congress had the power to determine what classes of persons should be recognized in that court, and over what claims its jurisdiction should be exercised, we are of opinion that the court rightly held it to be its duty to determine as a preliminary question whether the decedent had given any aid or comfort to the late rebellion or was loyal throughout the war to the government of the United States, and, having found that no was not thus loyal, properly dismissed the petition. Judgment affirmed. voj.. clv—28 434 OCTOBER TERM, 1894. Opinion of the Court. INGRAHAM v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND. No. 379. Submitted October 23, 1894. — Decided December 17, 1894. Pointer v. United States, 151 U. S. 396, sustained and applied to the point that it is not error to join distinct offences in one indictment, in separate counts, against the same person. A person who presents to the Third Auditor of the Treasury what purports to be an affidavit before a justice of the peace in support of a fraudulent claim against the Government, is estopped to deny that the document was not an affidavit when presented in evidence in criminal proceedings against him for such fraudulent act. It is not necessary, in the first instance, in order to prove such offence, to produce the commission of the justice, or to introduce other official evidence of his appointment. The case is stated in the opinion. Mr. Charles H. Page and Mr. Franklin P. Owen for plaintiff in error. Mr. Assista/nt Attorney General Whitney for defendants in error. Mr. Justice Harlan delivered the opinion of the court. By the first count of an indictment in the court below it was charged that the plaintiff in error, Royal Ingraham, on the 11th day of December, 1890, within the District of Rhode Island, did knowingly, wilfully and unlawfully make and present and cause to be made and presented for payment and approval to the Third Auditor of the Treasury of the United States of America a claim for payment and reimbursement to him of certain alleged expenses of the last sickness and burial of his mother, Freelove Ingraham, who in her lifetime had been a pensioner of the United States of America under a pension issued to her, and who prior to the above date had died leaving no widower or minor child surviving her; which claim INGRAHAM v. UNITED STATES. 435 Opinion of the Court. it was alleged was false, fraudulent, and fictitious in that it was stated in it that the last sickness of the pensioner continued uninterruptedly from July 21, 1889, to the date of her death on the 19th day of September, a.d. 1890, that he had actually paid to Perry Ingraham and Mary Ingraham for board, nursing, and medicines furnished to the pensioner the sum of three hundred and eighteen dollars, and to one Zylphia Ingraham for services as nurse the sum of one hundred and forty-eight dollars and fifty-seven cents; whereas, the last sickness of the pensioner was of only a few days’ duration, and the defendant had not at the time when he made his claim paid to Perry Ingraham and Mary Ingraham any sum for board, nursing, and medicine so furnished, and to Zylphia Ingraham any sum for services as nurse, he then and there well knowing his claim to be false, fraudulent, and fictitious, and the Third Auditor being then and there authorized to approve and allow it. By a second count in the indictment it was charged that the plaintiff in error on the 11th day of December, 1890, for the purpose of obtaining and aiding to obtain the payment and approval of the above claim, did knowingly, wilfully and unlawfully use and cause to be used a certain false affidavit, to wit, the affidavit of Perry Ingraham and Mary E. Ingraham, subscribed and sworn to on the 9th day of December, a.d. 1890, before Daniel H. Remington, a justice of the peace, he then and there well knowing that said affidavit contained the fraudulent and fictitious statement that on the 1st day of November, 1890, they, Perry Ingraham and MaryJE. Ingraham, received from him the sum of $318 in payment of an account therein stated for board, nursing, and medicine furnished to the pensioner, Freelove Ingraham, in her lifetime; whereas they, or either of them, did not, at any time prior to the making of such affidavit, receive from him any sum in payment of an account for board, nursing or medicine so furnished or for any services rendered to said pensioner. There was evidence before the jury tending to show that the accused presented to the Third Auditor of the Treasury of the United States and used and caused to be used before that officer in the prosecution of his claim against the government 436 OCTOBER TERM, 1894. Opinion of the Court. of the United States a certain paper in the form of and purporting to be an affidavit signed by Perry Ingraham and Mary E. Ingraham, and purporting to be sworn to before Daniel H. Remington as a justice of the peace, and certified to that effect by him. But there was no further testimony tending to show that Remington was duly commissioned and qualified as a justice of the peace and was authorized to administer oaths. Nor does the bill of exceptions state what evidence, relating to other points, was adduced before the jury. At the conclusion of the evidence the prisoner presented several requests for instructions to the jury. These requests were refused, and an exception was properly taken to the action of the court. After a verdict of guilty, and the denial of a motion in arrest of judgment, the defendant was sentenced to one year’s imprisonment at hard labor in the state-prison. 49 Fed. Rep. 155. The indictment in this case was based on section 5438 of the Revised Statutes of the United States. So much of that section as is relevant to this case is in these words: “ Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, . . . every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.” 1. Although each count of the indictment charged a distinct offence, it was not error to embrace both offences in one indictment in separate counts. Such joinder, where two or more acts or transactions are connected together, or are of the same INGRAHAM v. UNITED STATES. 437 Opinion of the Court. class of crimes or offences, is expressly provided for in section 1024 of the Revised Statutes. 'The subject of the joinder of distinct offences in one indictment against the same person was fully examined in Pointer v. United States, 151 U. S. 396, 400. 2. The paper presented by the defendant to the Third Auditor of the Treasury of the United States in support of his claim against the government, purporting to be the affidavit of Perry Ingraham and Mary E. Ingraham, certified by Daniel H. Remington, as a justice of the peace in Rhode Island, was admissible in evidence without formal proof that Remington had been duly commissioned and had duly qualified as a justice of the peace. Even if Remington had not been properly commissioned, or had not qualified so as to entitle him, in law, to discharge the functions of a justice of the peace, the paper presented by the defendant to the Third Auditor of the Treasury for the purpose of obtaining the payment or approval of his claim, being in the form of an affidavit, must, for all the purposes of this prosecution, be taken to be an affidavit. If he knew that the statement in that paper, described in the indictment, was fraudulent or fictitious, he was not the less guilty under the second count, because of the fact, if such was the fact, that Remington had not been duly commissioned as a justice of the peace, and was not, for that reason, entitled to administer the oath certified by him. The essence of the offence charged in the second count was the use by the defendant of a document or writing known by him to contain a fraudulent or fictitious statement made to secure the payment or approval of his claim. He is estopped to deny that the document or writing so used was not what it purports to be, namely, an affidavit. Besides, the contention of the accused could not be sustained even if the word “ affidavit ” in section 5438 were held to imply a declaration or affirmation in writing, sworn to or affirmed before some officer duly appointed and having legal authority to administer oaths or to take affirmations. It is not suggested nor could it be said that Remington, if duly commissioned or appointed a justice of the peace, was without such authority. 438 OCTOBER TERM, 1894. Syllabus. Pub. Stat. R. I. c. 23, § 9. But having acted in that capacity, the presumption will be indulged, nothing to the contrary appearing, that he was duly commissioned or appointed to the office whose functions he exercised. It was not necessary, in the first instance, in order to prove the offence charged, to produce his commission or introduce other official evidence of his appointment. Such is the general rule. It is one of public convenience and of long standing. Berryman v. Wise, 4 T. R. 366; 1 Greenleaf’s Ev. § 92; 1 Bishop’s Or. Pro. § 1130, and authorities cited; 1 Wharton Or. Ev. § 833, and authorities cited; Reg. v. Roberts, 14 Cox Cr. Cas. 101, 103; Reg. v. Howard, 1 Moody & Rob. 187; Rex v. ^erelst, 3 Camp. 432. What has been said meets all the points suggested in the brief of counsel for the plaintiff in error. Judgment affirmed. POTTER v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 531. Argued November 14,15,1894. — Decided December 17, 1894. In an indictment for a statutory offence, while it is doubtless true that it is not always sufficient to use simply the language of the statute in describing the offence, yet, if such language is, according to the natural import of the words, fully descriptive of the offence, then ordinarily it is sufficient. A charge in an indictment that the defendant was president of a national bank, and as such on a day and at a place named unlawfully, knowingly, and wilfully certified a certain cheque, (describing it,) drawn upon the bank, and that the drawer did not then and there have on deposit with the bank an amount of money equal to the amount specified in the cheque, is a sufficient averment of the offence described in Rev. Stat. § 5208, the punishment for which is provided for in the act of July 12, 1882, c. 290, 22 Stat. 162, 166. As it is of the essence of the offence against those acts that the criminal act should have been done wilfully, a person charged with it is entitled to have submitted to the jury, on the question of “wilful” wrongdoing, evidence of an agreement on the part of the officers of the bank that it should be treated as a loan from day to day, secured by ample collater , POTTER v. UNITED STATES. 439 Statement of the Case. and that for the cheque certified each day there was deposited each day an ample amount of cash. In a criminal trial the burden of proof is on the government, and the defendant is entitled to the benefit of a reasonable doubt ; and when testimony contradictory or explanatory is introduced by the defendant, it becomes a part of the burden resting upon the government, to make the case so clear that there is no reasonable doubt as to the inferences and presumptions claimed to flow from the evidence. By section 5208 of the Revised Statutes it is provided that “ it shall be unlawful for any officer, clerk, or agent of any national banking association to certify any cheque drawn upon the association unless the person or company drawing the cheque has on deposit with the association, at the time such cheque is certified, an amount of money equal to the amount specified in such cheque.” No penalty was imposed on the individual for a violation of this section. But on July 12, 1882, c. 290, 22 Stat. 162, 166, it was enacted : “ Seo. 13. That any officer, clerk, or agent of any national banking association who shall wilfully violate the provisions of an act entitled ‘ An act in reference to certifying cheques by national banks,’ approved March third, eighteen hundred and sixty-nine, being section fifty-two hundred and eight of the Revised Statutes of the United States, or who shall resort to any device, or receive any fictitious obligation, direct or collateral, in order to evade the provisions thereof, or who shall certify cheques before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association, shall be deemed guilty of a misdemeanor, and shall,” etc. In May, 1892, the defendant was indicted in the Circuit Court of the United States for the District of Massachusetts for a violation of these sections. The indictment contained eighty-eight counts. By demurrer and nolle the last fortyeight counts were disposed of before the trial, which proceeded upon the first forty. In these forty counts the unlawful certification of five cheques was charged, the first eight counts relating to one cheque, the next eight to another, and so on. The case came on for trial in February, 1893, and resulted in 440 OCTOBER TERM, 1894. Statement of the Case. a verdict of guilty on fifteen counts, three in respect to the certification of each cheque. A motion for a new trial having been overruled, the defendant was sentenced to pay a fine of $1000, and to be imprisoned in jail for the term of sixty days. To reverse this judgment the defendant brought this writ of error. The third count in the indictment, which was one of those upon which the defendant was found guilty, after stating time and venue, and that the defendant was president of the Maverick National Bank and authorized to lawfully certify cheques, charged “that said Potter as such president as aforesaid did then and there, to wit, on said twenty-third day of July, at Boston aforesaid, within said district and within the jurisdiction of this court, unlawfully, knowingly, and wilfully certify a certain cheque, which said cheque was then and there drawn upon said association for the amount of twenty-four hundred and fifty dollars by certain persons, to wit, Irving A. Evans, Austin B. Tobey, and William S. Bliss, copartners, then and there doing business under the firm name and style of Irving A. Evans and Company, and which said cheque was then and there of the tenor following — that is to say: g ‘ Boston, Jul- 23, 1891. $2450. No. 54493. o3 * t £ Maverick National Bank. Pay to the order of Hayward & Townsend $2450, ,S twenty-four hundred & fifty dollars. £ Irving A. Evans & C-.’ by then and there writing, placing, and putting in and upon and across the face of said cheque the words and figures following— that is to say : ‘ Maverick National Bank. Certified Jul- 23, 1891. Pay only through clearing-house. A. P. Potter, Pl (meaning said Asa P. Potter, such president as aforesaid). ‘-------------, Paying Teller.’ POTTER v. UNITED STATES. 441 Statement of the Case. that the said persons, as copartners under the firm name and style as aforesaid, by whom said cheque was then and there drawn as aforesaid, did not then and there, to wit, at the time said cheque was so certified by said Potter as aforesaid, have on deposit with said association an amount of money then and there equal to the amount then and, there specified in said cheque, to wit, the amount of twenty-four hundred and fifty dollars in money, as he, the said Potter, then and there well knew, against the peace and dignity of the said United States and contrary to the form of the statute in such case made and provided.” All the counts upon which the defendant was found guilty, both in respect to this and the other cheques, were, so far as any question is involved in this case, substantially like the one quoted. On the trial the books of the bank were presented, showing that at the time these five cheques were certified the account of Evans & Co. was overdrawn in a large sum — between $100,000 and $200,000. There was testimony tending to show that upon each day that these cheques were certified, and prior thereto, Evans & Co. deposited in cash an amount more than sufficient to cover the certifications. Thereupon, as the bill of exceptions shows — “ The defence called the defendant, Mr. Potter, and offered to prove by him an oral agreement between I. A. Evans & Co. and the Maverick National Bank, in the early part of 1891, before June or July, 1891, that Evans & Co. might have a loan by overdraft limited to $200,000, with interest to be charged daily at the rate of six per cent, against which collateral was to be put up, and further to show that the overdrafts existing in June and July, 1891, were under this agreement, and that collateral was actually deposited and kept against it in the hands of the assistant cashier; that this agreement was communicated to the executive officers of the bank and to a majority of the directors of the bank, who approved it, and this offer was made in connection with the facts that appear in evidence in relation to the books of the bank; also the defence offered another conversation between 442 OCTOBER TERM, 1894. Statement of the Case. Mr. Potter and Mr. Evans in relation to the matter of certification of cheques and deposits connected with this certification, in which Mr. Evans called his attention to the fact that a cheque had been refused certification, and Mr. Potter told Mr. Evans that it was undoubtedly because he had no deposit there. Whereupon Mr. Evans said, ‘ But I have a loan, as I understand it;’ to which Mr. Potter replied substantially, ‘We cannot certify cheques against a loan; if you are going to have certified cheques you must have deposits in the bank to certify them against; ’ and that from that time forward the deposits were in, to Mr. Potter’s knowledge, from day to day after this conversation with Mr. Evans, in which the defence claims that the parties to the conversation understood distinctly that the daily deposits were to be in for the very purpose of certifying cheques. “This whole offer was made by the defence as material matter of substantive defence, as a part of the res gestae and of the transaction, and as specifically bearing upon the question of criminal intent upon the part of the defendant. The facts ‘ that appear in evidence in relation to the books of the bank,’ as referred to in the above offer and in connection with which the offer is made, are heretofore fully stated in this bill of exceptions.” And in pursuance of this offer the defendant asked the witness certain questions, for the purpose of showing a state of facts, as indicated in the offer, but the testimony was rejected, the court saying, in response to an inquiry of counsel as to whether “ a definite agreement ” was ruled out — “Yes, sir ; I rule out anything that does not appear on the books of the bank in connection with this deposit. I think what was on deposit and not on deposit as the case now stands must be determined by what appears on the books of the bank — as this case now stands — and the papers of the bank.” Exceptions were duly taken to the action of the court in this respect. Among other instructions to the jury was the following: “ But, upon some reflection, I have come to the conclusion POTTER v. UNITED STATES. 443 Opinion of the Court. that notwithstanding Evans & Co. may have been overdrawn on the morning of any particular day and during the whole of that day, yet if the bank did in fact receive a special deposit and set aside certain cheques or other moneys and hold them for the purpose of covering the certified cheques, that it would not be any violation of the letter or policy of the statute and would be a defence. But I must say, gentlemen, that I am unable to see in this case any evidence that anything of that sort was done. I am unable to see in the case any evidence — I do not mean to say evidence of what was intended or agreed to be done, which is not essential to this case, but any evidence that as a matter of fact any of these cheques deposited by Evans & Co. did not go into the general deposit account and were not absorbed the instant they passed into the bank. Upon this branch of the case I instruct you the burden of proof is on the defence — not proof beyond a reasonable doubt, but to satisfy you by a preponderance of evidence. If the defence does satisfy you by the preponderance of evidence that there was a segregation in fact appearing upon or shown from the books and papers of the bank — a segregation, a setting apart of certain deposits sufficient to cover the certified cheques and against which the cheques were certified — it is a defence in this case.” To the giving of which instruction the defendant at the time duly excepted. Afr. W. 8 B. Hopkins and Jfr. Henry D. Hyde, (with whom was Mr. William A. Sargent on the brief,) for plaintiff in error. Mr. Assistant Attorney General Conrad for defendants in error. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. The only questions which we deem it material to consider are those presented by the foregoing extracts from the record. The first is, was the indictment sufficient ? It is objected that “ certification,” to constitute an offence 444 OCTOBER TERM, 1894. Opinion of the Court. within the scope of the statute, must be such an act or series of acts as creates a contract binding upon the bank; that a mere writing of the word “ certified ” on a cheque does not, until delivery to some person, have any such effect; and that while an indictment, charging simply in the language of the statute that the defendant wrongfully certified a cheque, might carry an implication that the cheque was not only written upon but also delivered so as to complete the contract included in the word “ certification,” yet here the pleader has limited the scope of those words by a particular statement of what the defendant did, which statement does not include the matter of delivery. Every allegation made in the indictment might, it is said, be satisfied by proof that the defendant, finding on his table a cheque of the form described, wrote the words thereon as charged, and then tore the paper up and threw it in the fire, or disposed of it in some other way so as not to create any obligation against the bank. We think this is placing too narrow a construction on the indictment. The offence charged is a statutory one, and while it is doubtless true that it is not always sufficient to use simply the language of the statute in describing such an offence, United States v. CarU, 105 U. S. 611, yet if such language is, according to the natural import of the words, fully descriptive of the offence, then ordinarily it is sufficient. The word “ certify ” as commonly understood implies that the cheque, upon which the words of certification have been written, has passed from the custody of the bank and into the hands of some other party, and when the charge is that the defendant “ did unlawfully, knowingly and wilfully certify a certain cheque,” the import of that accusation is not simply that he wrote certain words on the face of the cheque, but that he did it in such a manner as to create an obligation of the bank; in such a way as to make an instrument which can properly be called a certified cheque. And the subsequent recital, “by then and there writing, placing, and putting in and upon and across the face of said cheque the words and figures following,” etc., is not to be taken as absolutely limiting the import of the word “ certified ” to the mere act of so POTTER v. UNITED STATES. 445 Opinion of the Court. writing, placing, etc., but as simply descriptive of the form of the certification — of that which he personally did. It was not necessary, to constitute the offence, that he should himself deliver the cheque to some third party outside the bank, or even that he should take any part in such delivery. His offence would be complete if, after he had written the words of certification as stated, with the intent that they should be used to create a contract on the part of the bank, the actual delivery had been made by some clerk or other officer of the bank without his actual knowledge. The full details of the transaction by which the words written by him upon the face of this instrument became operative to make it a “certified cheque ” were matters of evidence rather than of allegation. An unlawful certification is in terms charged, and the form of the writing creating the certification is given. It is generally true as claimed that where an indictment is unnecessarily descriptive, even the unnecessary description must be proved as laid; but that proposition does not seem to be in point, for it is not claimed that the testimony did not show just such a writing as is charged to have been made by the defendant, and surely it cannot be claimed that unnecessary matter of description must be proved otherwise than as it is stated. While there is plausibility in the contention of counsel, yet we think it would be giving an unnecessary strictness to the -language of the indictment to adjudge it insufficient, or to hold that it failed to inform the defendant exactly of what he was accused, or lacked that precision and certainty of description which would enable him to always use a judgment upon it as a bar to any other prosecution; and that, as we all know, is the substantial purpose of a written charge. The next question relates to the admissibility of the testimony which was offered and rejected. The charge is of a wilful violation. That is the language of the statute. Section 5208, Revised Statutes, makes it unlawful for any officer of a national bank to certify a cheque unless the drawer has on deposit at the time an equal amount of money. But this section carries with it no penalty against the wrongdoing 446 OCTOBER TERM, 1894. Opinion of the Court. officer. Section 13 of the act of 1882 imposes the penalty, and imposes it upon one “ who shall wilfully violate,” etc., as well as upon one “who shall resort to any device,” etc., “to evade the provisions of the act; ” “ or who shall certify cheques before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association.” The word “ wilful ” is omitted from the description of offences in the latter part of this section. Its presence in the first cannot be regarded as mere surplusage; it means something. It implies on the part of the officer knowledge and a purpose to do wrong. Something more is required than an act of certification made in excess of the actual deposit, but in ignorance of that fact or without any purpose to evade or disobey the mandates of the law. The significance of the word “ wilful ” in criminal statutes has been considered by this court. In Felton v. United States, (96 IT. S. 699, 702,) it was said: “ Doing or omitting to do a thing knowingly and wilfully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. ‘ The word “ wilfully,”’ says Chief Justice Shaw, ‘in the ordinary sense in which it is used in statutes, means not merely “ voluntarily,” but with a bad purpose.’ 20 Pick. (Mass.) 220. ‘ It is frequently understood,’ says Bishop, ‘as signifying an evil intent without justifiable excuse.’ Crim. Law, vol. 1, § 428.” And later, in the case of Fvans v. United States, 153 IT. S. 584, 594, there was this reference to the words “ wilfully misapplied: ” “ In fact, the gravamen of the offence consists in the evil design with which the misapplication is made, and a count which should omit the words ‘ wilfully,’ etc., and ‘ with intent to defraud,’ would be clearly bad.” Now, it is not disputed that if the overdraft had in form been cancelled on the books of the bank and a note taken for the amount thereof, so that the obligation of Evans & Co. was evidenced only by a note, and not left as an open account, this particular section of the law would not be applicable, and any wrong done by the defendant in making or continuing POTTER v. UNITED STATES. 447 Opinion of the Court. such a loan would have to be punished by proceedings under some other section. If at the opening of the account a note of $200,000 had been discounted and the amount entered to the credit of Evans & Co., the certifications complained of would not have been in violation of this section, because the credit side of the account would always have been in excess of the certifications ; or if, at the close of each day’s business, a note had been taken for the balance due the bank and the open account cancelled, the same result would follow, because each morning before any certification an amount in money was deposited larger than the total certifications of the day. The testimony offered tended to show an agreement on the part of the officers of the bank to treat this overdraft as a loan, drawing interest and secured by collateral, and that such agreement was carried into effect by the deposit of the collateral and the casting up of interest. If the defendant in good faith supposed that this arrangement was the equivalent of a loan by note, and that the indebtedness of Evans & Co. was fully secured by collateral, it seems to us that the jury would have a right to be informed of the fact as -bearing upon the question whether he had “ wilfully ” violated the statute. It cannot be that the guilt or innocence of the defendant under this indictment turns upon the mere matter of bookkeeping. While it is true that care must be taken not to weaken the wholesome provisions of the statutes designed to protect depositors and stockholders against the wrongdoings of banking officials, it is of equal importance that they should not be so construed as to make transactions of such officials,'carried on with the utmost honesty and in a sincere belief that no wrong was being done, criminal offences, and subjecting them to the severe punishments which may be imposed under those statutes. We must not be understood as holding that this testimony established an absolute defence, and that by the form of such an agreement the mandatory terms of section 5208 can be evaded, but only that evidence of a positive agreement upon the part of the officers of the bank that this overdraft account should be practically treated as a loan from day to day, to be and in fact secured by ample collateral — coupled with testi’ 448 OCTOBER TERM, 1894. Syllabus. mony that for the cheques certified each day there was deposited in advance an ample amount of cash — should have been submitted to the jury on the question of “ wilful ” wrongdoing. As “ wilful ” wrong is of the essence of the accusation, testimony bearing directly on the question of wilfulness is of vital importance, and error in rejecting it cannot be regarded otherwise than as material and manifestly prejudicial. The remaining question is in reference to the instruction as to the burden of proof. We think that, so far as respects the particular matter mentioned in the instruction quoted, the rule remains as in other phases of a criminal trial; that the burden of proof is on the government, and the defendant is entitled to the benefit of a reasonable doubt. It may be that certain presumptions follow from the entries in the books, and accompanying testimony introduced by the government. It may also be that those presumptions are conclusive in the absence of contradictory or explanatory testimony, and, in that aspect of the case, that the defendant must introduce something to weaken the otherwise conclusive force of such presumptions ; but whenever testimony thus contradicting or explaining is introduced, it becomes a part of the burden resting upon the government to make the case so clear that there is no reasonable doubt as to the inferences and presumptions claimed to flow from the books or other evidence. Judgment reversed, and new trial ordered. ALSOP v. RIKER. RIKER v. ALSOP. APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Nos. 59, 63. Argued November 8, 1894. — Decided December 10,1894. A court of equity, in the exercise of its inherent power to do justice between parties, will, when justice demands it, refuse relief, even if the ALSOP v. RIKER. 449 Opinion of the Court. time elapsed without suit is less than that prescribed by the statute of limitations. The length of time during which a party neglects the assertion of his rights which must pass in order to show laches in equity, varies with the peculiar circumstances of each case, and is not subject to an arbitrary rule. Halstead v. Grin nan, 152 U. S. 412, affirmed and applied to this point. The facts in this case, detailed in the opinion, disclose such laches on the part of Riker in asserting the rights which he here claims, that a court of equity should refuse to interpose, without inquiry whether the suit can or cannot be excluded from the operation of the statute of limitations of the State of New York. The case is stated in the opinion. Mr. Andrew J. Riker in person for himself. Mr. George W. Wingate for Alsop and for Campbell’s executors. Mr. John M. Bowers, for Whitewright, submitted on his brief. Mr. Justice Harlan delivered the opinion of the court. William H. Aspinwall, Joseph W. Alsop, Edwin Bartlett, David Leavitt, Edward Learned, Samuel W. Comstock, and William A. Booth, holders of construction bonds of the Ohio and Mississippi Railroad Company, Eastern Division, issued to the stockholders and creditors of that corporation on the 15th day of December, 1858, a circular inviting them to unite in adopting an agreement such as was transmitted with the circular. In that circular they expressed the opinion that by the adoption of the proposed agreement the company would be enabled to place its road and property in a condition to command the entire business to which from its location it would be fairly entitled; “ to meet promptly all future demands upon it for interest on its remaining indebtedness; from its net earnings to pay fair dividends upon its stock within a reasonable time; and that all causes for litigation will be removed and the interests of all parties be thereby placed in a safe and reliable position.” VOL. CLV—29 450 OCTOBER TERM, 1894. Opinion of the Court. With the circular was submitted a statement showing that the estimated liabilities of the company, with interest to July 1, 1859, aggregated $18,393,768, of which $2,050,000 were first-mortgage bonds, $258,000 were second-mortgage bonds, $4,242,000 were construction or third-mortgage bonds, part of which were to be used in redeeming and retiring the second-mortgage bonds, and $3,320,000 were income bonds, including scrip certificates. The appellant, Andrew J. Riker, was at that time the holder and owner of nine of the company’s construction bonds. The agreement recited that the subscribers were “ desirous that concessions shall be made by all parties in interest which shall discharge a portion of the indebtedness of said company and thereby assure the prompt payment of all sums which shall become due on the residue thereof, and without prejudice to the proper improvement and maintenance of the road and its appurtenances.” By the first paragraph of the proposed agreement it was provided that subscribers who were owners or legal representatives of legal demands against the company would discharge the same on payment therefor by the company, as follows: For the three coupons that were then, or that should become due, on its first-mortgage bonds, next prior to and including those due July 1, 1859, one-half thereof in money, and one-half thereof in shares of the capital stock of the company at par; for the coupons that were then, or that should become due, on second-mortgage bonds, up to and including those due April 1, 1859, one-half thereof in money, and one-half in shares at par; for the principal of second-mortgage bonds, one-third in shares at par, and the remaining two-thirds in construction bonds at par; for the coupons that were then due or that might become due, on its income bonds, up to and including those due May 1, 1859, together with the principal of such income bonds, in shares at par; for the scrip (certificates convertible into income bonds) issued by the company, in shares at par; for other evidences of indebtedness against the company, as the same were admitted or allowed by its directors, in shares at par — the interest on the above demands, ALSOP v. RIKER. 451 Opinion of the Court. (excepting coupons,) so to be paid, to be made up to the first day of July, 1859, and to be paid in the same manner as the demands to which it related. By the second paragraph it was provided that subscribers being owners or legal representatives of shares of the capital stock of the company, would transfer all their shares to its directors or to such person or persons as the directors should designate and appoint — to be reissued or retransferred to make the above payments, and to return to the subscribers or their legal representatives who transferred their shares such portion as they would be entitled to under the agreement, the residue, if any, to belong to the company. The third paragraph provided that the covenants contained in the above paragraphs were upon the following conditions : 1st. That the owners or legal representatives of all demands or stock paid or transferred should subscribe to and comply with the agreement, or that equivalent concessions be made so that the entire payments contemplated should be made — the company to purchase with any balance of shares remaining after the payments above named, or with other means, fifty thousand dollars of the first-mortgage or construction bonds, and to cancel all the bonds and coupons so paid or purchased, except those necessary for exchange for second-mortgage bonds as aforesaid — so that on the first day of July, 1859, the indebtedness should not exceed $5,000,000, of which not more than $2,050,000 should be represented by first-mortgage bonds, and the residue by construction bonds, with interest running from March 1, 1859. 2d. That the owners of income bonds should have loaned to the company the money required to make the cash part of the above payments, such loan with interest to be repaid at the earliest practicable time, consistent with the proper maintenance of the road. 3d. That the city of Cincinnati should grant such modifications and releases of its demands, contracts, and claims against the company as its directors and the trustees named in the agreement should deem satisfactory. 4th. That the capital stock of the company should not exceed $7,500,000, unless increased by a further reduction of its bonded debt. 452 OCTOBER TERM, 1894. Opinion of the Court. It was further provided that the subscribers should transfer and deliver to the persons named as trustees, their survivors and successors in trust, their several demands, and all evidences thereof, that were contemplated to be discharged or paid for in shares of stock, and all their shares of said capital stock, (with power to transfer,) to be managed by such trustees for the benefit of the subscribers and their legal represents tives in the proportions and upon the terms and conditions specified in the agreement, and should comply with any requirements which the trustees, pursuant to authority, should make. The persons who sent out the above circular, their survivors and successors, were named as trustees under the agreement, a majority of them to have authority to do such acts and things on behalf of the subscribers as they deemed necessary or expedient to carry out the purposes of the agreement which did not impose liability upon a subscriber to pay any money except at his option. The other paragraphs of the agreement prescribed in detail the mode in which the proposed scheme should be executed, and the authority which the designated trustees might exercise. Among other things, it was provided in the proposed agreement that the trustees should issue and deliver certificates equal to the amount of demands admitted or allowed, properly equalizing any differences occasioned by priorities of time in such transfers or deliveries; that the trustees, in their discretion, might purchase for the benefit of the trust, bonds of the company not contemplated to be delivered to them, also other evidences of indebtedness and shares of stock deemed essential or beneficial to the trust and to parties interested therein, and issue certificates in payment therefor; that said certificates should be the only evidence of the interest of subscribers in the property of the trust, which interest was to be such proportion thereof as the amount of any certificate or certificates bore to the amount of all the certificates issued by the trustees; and that when the parties necessary to carry out the provisions of the first three paragraphs of the agree' ALSOP v. RIKER. 453 Opinion of the Court. ment had subscribed and complied with the same, and the trustees were furnished with evidences of the demands to be paid only in part, the trustees should cancel and surrender to the company all evidences of its indebtedness then belonging to the trust. In view of the contingency of a foreclosure of some of the mortgages upon the road and property, it was provided that the trustees might make such arrangements with the trustees named therein, or with the owners of the bonds secured thereby, as, in their opinion, would enable them to protect the interests of the trust without making calls upon subscribers; but failing in this, and if they deemed the trust property insufficient or unavailable for the purchase of the road and property at any sale thereof, then they might, on sixty days’ notice, make calls on owners of certificates for their just proportion of the means necessary for the purpose, provided that any party so called on could, at his option, omit or refuse to pay any portion of any or of all. such calls in the proportion of money or bonds called, in which case the trustees could procure the deficiency from other persons, and issue and deliver certificates for such amounts as they might agree upon. It was further provided, that in the event of the purchase of the road and property by the trustees and the procurement of title and possession, the trustees should transfer the same to the owners or legal representatives of the certificates issued in pursuance of the proposed agreement, according to and on the surrender of their several certificates, and distribute to them severally any other trust property, or the proceeds therefrom, remaining in their hands, such transfer and distribution to be made to each certificate holder in the proportion that the amounts of his certificates shall bear to the whole amount of the certificates outstanding; and, that if any subscriber to the agreement should, directly or indirectly, purchase the whole or any part of the road or property, then every other subscriber, or his legal representative, could at any time thereafter, until sixty days shall have elapsed from service of notice upon him, pay or legally tender to such purchasing subscriber or subscribers such proportion of the purchase money paid by 454 OCTOBER TERM, 1894. Opinion of the Court. him or them as was equal to the amounts of the certificates issued to him or them, and to such other subscribers respectively under the agreement, and he should then be entitled to participate in the ratio the money he paid or tendered should bear to the purchase money. The appellant Riker signed the agreement for three of the nine construction bonds held by him and kept the remaining six in his possession. On the 18th of March, 1859, formal notice was given to the stockholders of the company by the trustees named that only a part of those whose signatures were essential in order to carry out the main purpose of the agreement had signed it, and that the trustees under the authority given them had adopted a resolution that the right to subscribe would cease from and after May 1, 1859, except upon the unanimous consent of the trustees, and that on that day the trustees would determine whether the agreement had been subscribed by a sufficient number for the consummation of the objects contemplated by it. On the 13th day of December, 1860, and at the request of the holders of certificates, the trustees made a statement that was embodied in a circular addressed to creditors and stockholders, showing that the claims surrendered to the trustees under the agreement aggregated at that time $10,549,570.84, for which $182,995.66 was paid in cash and $10,366,575.18 in trust certificates. In the same statement the trustees said: “ The suit instituted by the second-mortgage bondholders is being urged to a decision in the courts of Ohio and Indiana, and a decree of sale will no doubt be obtained in a few weeks at the latest; when it will become necessary for the trustees to exercise the authority given in the agreement of 15th December, 1858, to protect the property of the trust.” By a circular issued by the trustees to creditors and stockholders on the 11th day of July, 1861, the latter were informed that the foreclosure suit instituted by the second-mortgage bondholders had resulted in a decree of sale, and that by the terms of such decree the road could not be sold for less than ALSOP v. RIKER. 455 Opinion of the Court. $1,000,000 subject to the first mortgage of $2,050,000. Creditors and stockholders were also informed by the same circular that the trustees required from them $623,165 in addition to their then available means to enable them to protect the trust by a purchase of the property. The sale under the decree obtained by the holders of second-mortgage bonds was advertised for October 21, 1861. But as no bid was offered equal to the requirements of the decree, the property was not then sold. Subsequently, certain amendments of the trust agreement were made at meetings of the subscribers, which amendments, the trustees claim, were made for the purpose of enabling them to protect the trust by purchasing second-mortgage bonds and holding them for the benefit of the trust. These purchases were made prior to April 17, 1863. During the year 1866 the trustees and the holders of certificates issued under the trust agreement determined to wind up the trust. To that end the trustees, holding second-mortgage bonds for the benefit of the trust, caused the property specified in the decree of foreclosure to be duly re-advertised for sale. The sale was adjourned from time to time, but it finally took place on the 9th of January, 1867, the trustees becoming the purchasers at $1,000,000. A plan of reorganization was adopted by the certificate holders, and the trust agreement was so amended that it could be carried into effect. That plan contemplated the formation of a new corporation to receive from the trustees the property purchased by them, and all other property and rights belonging to the trust. The new corporation was formed by the name of the Ohio and Mississippi Railway Company, and on the 18th day of December, 1867, it took, by regular transfer from the trustees, the trust property held by the latter, including all the property, real and personal, and all the franchises of the old corporation. The object of the present suit is to hold those who were trustees under the agreement of 1858, and who participated in the proceedings under which the Ohio and Mississippi Railway Company acquired the property in question, personally liable to Riker for the amount due on the six construction 456 OCTOBER TERM, 1894. Opinion of the Court. bonds he withheld from the trustees. The theory of the suit is that the agreement of 1858 had in view the protection of all the bonds held by subscribers, those withheld from as well as those delivered to the trustees under that agreement; and, consequently, that the purchase of the property by the trustees for the protection simply of the particular debts covered by the trust agreement was contrary to its object and provisions, and was such a breach of duty upon their part as made them liable to him for the amount due on six construction bonds. The defence, stated generally, was that the trustees held relations of trust to those who subscribed the agreement of 1858 only in respect to the debts for which the subscribers signed; that the plaintiff refused to avail himself of the opportunity to become a party to that agreement in respect to the bonds held by him except the three construction bonds for which he signed; that by the sale under the above decree of foreclosure all the debts of the Ohio and Mississippi Railroad Company that were subordinate in right to the holders of second-mortgage bonds were cut off; and that those who acted from time to time as trustees under the agreement of 1858 had no duty to perform except to represent the subscribers thereto in respect to the parts of claims for which they signed. The defendants also relied upon the statute of limitations barring all claims not accruing within six and ten years, respectively, before the commencement of action. The court below sustained the plaintiff’s demand, and rendered a personal decree for the amount due on his six construction bonds not embraced in the agreement of 1858. The decree was for the aggregate sum of $18,305. Both plaintiff and defendants appealed, the former claiming that a larger amount should have been awarded to him. The grounds upon which the Circuit Court held the plaintiff to be entitled to a decree for the value of his six unsurrendered construction bonds are fully stated in an opinion rendered by the learned Circuit Judge who tried the case. 27 Fed. Rep. 251, 256, 257. “ The concessions to be made by holders of construction bonds,” the court said, “ was the surrender by them of one-third of the principal of their bonds, ALSOP v. RIKER. 457 Opinion of the Court. and the acceptance in lieu thereof of an interest in the trust fund which was to come into the hands of the trustees under the plan of the agreement. Beyond the one-third which they were to surrender they were to have no interest in the trust fund, and their rights were to remain the same as though no agreement had been subscribed ; and the only change effected in their previous relations to the company was that thenceforth they were embarked with the trustees in the common undertaking which the trustees obligated themselves to carry out. By the terms of the agreement the trustees promised to distribute the trust fund which was to be created among the certificate holders according to their respective interests. If they had succeeded in exchanging the claims which had been surrendered to them by creditors for stock of the company, the trust fund which they would have distributed would have been the stock of the company, and the certificate holders would have become stockholders whose rights would have been subordinate to the existing mortgages upon the property. The holders of construction bonds who had surrendered a third of their holdings under the agreement would have occupied the position of stockholders for the amount surrendered, but their rights as bondholders for the unsurrendered two-thirds of their bonds would have remained the same as before.” Again: “ There is not a word in the agreement to indicate that they could purchase the road discharged of the equitable lien of those who had surrendered a portion of their bonds in order that the remaining part should be more safely secured. . . . The trustees did not purchase upon the foreclosure of the second mortgage because a sale of the property was imminent. They did so because a sale, and a purchase by them under such a sale, would afford a convenient method of closing out their trust, and enable them to convey a satisfactory title to the new corporation. Of course they occupy no better position toward the complainant than they would if they bad purchased pursuant to the conditions of the trust. They now insist, as they have insisted all along, that they owe no duty to the complainant, and that no one had any right to share in the proceeds of the trust fund arising under the agreement except 458 OCTOBER TERM, 1894. Opinion of the Court. certificate holders, or in the distribution of the property which they acquired by purchase. It does not follow because the complainant had no interest in the trust fund, and was not entitled to share in its distribution after he had parted with his certificate, that the trustees owed him no duty respecting the unsurrendered two-thirds of his bonds. They undertook to become his trustee for the purpose of protecting, as well as could practically be done, his interest as a secured bondholder of the company, to the extent of two-thirds of his original security, in consideration of his becoming a subscriber to the agreement. ” On the other hand, the contention of the trustees, from the outset, was that the securities received by them and those they purchased were to be held for the exclusive benefit of certificate holders, and that they never became trustees for the plaintiff in respect of the six construction bonds not surrendered by him, and for which no certificate was issued. Whether the view taken by the Circuit Court of the relations between the trustees and the complainant be correct or not, we do not deem it necessary to determine; for, in our judgment, the case must be disposed of without considering that question, namely, upon the ground. tha,t the plaintiff was not entitled to the interposition of equity in his behalf. His bill should have been dismissed without prejudice to an action at law. It is impossible to doubt that he was fully informed of every step taken by the trustees from time to time in the discharge of what they conceived to be their duty to certificate holders. He was not ignorant of the fact that the original agreement of 1858 was amended in important particulars in 1862 and 1863, and that in virtue of the additional powers conferred by those amendments, the trustees, by purchases made prior to April 15, 1863, acquired the second-mortgage bonds and thereby obtained control of the foreclosure suit. In November, 1866, he was present at a meeting of certificate holders and mentioned to Campbell, who became a trustee in 1864, the fact that he held six construction bonds. Campbell replied that he knew nothing about the early workings of the trust, and would inquire into the matter. In ALSOP v. RIKER. 459 Opinion of the Court. January, 1867, the road and its appurtenances were sold, as he well knew, and were purchased by the trustees. And in December, 1867, he presented his six construction bonds to Campbell, the chairman of the trustees, and told him that he, Riker, wanted done for those bonds what was done for them in the agreement — meaning the agreement of December 15, 1858. Campbell, doubtless supposing that Hiker meant to assert some interest in the property, replied to him that the bonds “ were not worth a cent, as they were shut out by the sale ” under the foreclosure decree. He was thus distinctly informed as early as December, 1867, that his claim upon the property acquired by the trustees for the certificate holders was disputed. But he took no steps to vindicate his rights, if any he then had. He was quiescent until December 10,1870, which was nearly four years after the purchase by the trustees and nearly three years after they had conveyed it to a new corporation, the Ohio and Mississippi Railway Company. On that day he served a formal written notice upon Campbell, as chairman of the trustees, that he held and owned the six construction bonds, (describing them,) and demanded that Campbell pay or secure to him the aggregate of principal and interest then due on them — $10,830. Then ensued another period of inaction; for the present suit was not brought until August 7, 1876, more than thirteen years after the trustees purchased the second-mortgage bonds for the benefit of the trust, more than nine years after the purchase of the road, at the foreclosure sale, for the benefit of certificate holders, and nearly nine years after the interview between the plaintiff and Campbell, in which the latter told him that his bonds had been cut off by that sale and were not worth anything. The record discloses no element of fraud or concealment upon the part of the trustees dr of any of them. What they did was done openly and was known or might have been known by the exercise of the slightest diligence upon the part of every one interested in the property of the old corporation. The plaintiff unquestionably knew, or could easily have ascertained, before the trustees bought the property at 460 OCTOBER TERM, 1894. Opinion of the Court. the foreclosure sale — at any rate, before they transferred it to the new corporation — that their purchase would be, and was, exclusively for the benefit of certificate holders interested in the trust. Although his bonds had not then matured, he could have taken steps to prevent any transfer of the property that would impair his equitable rights in it or instituted proper judicial proceedings, of which all would be required to take notice, to have his interest in the property adjudicated. He allowed the trust to be wound up, and postponed any appeal to a court of equity based upon an alleged breach of trust by the trustees, until six out of the seven original trustees had died. His laches cannot be excused upon the ground that the trust assumed by the trustees was express or direct, for it is clearly established that the trustees, as early as December, 1867, denied and repudiated, as the plaintiff knew, the existence of any trust in relation to such of the construction bonds as the plaintiff did not surrender to them. Speidel v. Ilenrici, 120 U. S. 377; Riddle v. Whitehill, 135 U. S. 621; Phillipi v. Phillipe, 115 U. S. 151. We, therefore, incline to think that this suit cannot be excluded from the operation of the statute of limitations of New York prescribing a limitation of six years for an action “ upon a contract, obligation, or liability, express or implied.” N. Y. Civ. Code Pro. in force prior to September 1, 1877; Voorhees’ Code, § 91, 4th ed. ‘86; 5th ed. 69, 70; Miller v. Wood, 116 N. Y. 351; Carr v. Thompson, 87 N. Y. 160 ; Kirby v. Lake Shore c&e. Railroad, 120 U. S. 130, 139. But, without placing our decision upon that ground and independently of the statute of limitations, the case is one m which a court of equity should refuse to interpose because of laches upon the part of appellant in asserting the rights he now claims. Looking at all the circumstances, particularly the nature of the property, good faith demanded that if he intended to question the right of the trustees to acquire, hold, and transfer it for the exclusive benefit of certificate holders, he should have done so by formal proceedings, commenced within a reasonable time after he became cognizant of all the facts. The case is one peculiarly for the application of the PLUMLEY v. MASSACHUSETTS. 461 Syllabus. rule that equity in the exercise of its inherent power to do justice between parties, will, when justice demands it, refuse relief, even if the time elapsed without suit is less than that prescribed by the statute of limitations. Harwood v. Railroad Co., 17 Wall. 78; Twin Lick, Oil Co. v. Marbury, 91 U. S. 587, 592; Hayward v. National Bank, 96 U. S. 611, 616 ; Richards v. Mackall, 124 U. S. 183, 187; Hammond v. Hopkins, 143 U. S. 224, 250. As observed in Halstead v. Grinnan, 152 U. S. 412, 416, “ the length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defence, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them.” The decree is reversed at the costs of the complainant, and the cause remanded with directions to dismiss the bill without prejudice to an action at law. Reversed. PLUMLEY v. MASSACHUSETTS. ERROR TO THE SUPREME JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS. No. 406. Argued April 5, 6,1894. — Decided December 10,1894. The act of August 2, 1886, c. 840, 24 Stat. 209, does not give authority to those who pay the taxes prescribed by it, to engage in the manufacture or sale of oleomargarine in any State which lawfully forbids such manufacture or sale, or to disregard any regulations which a State may lawfully prescribe in reference to that article; and that act was not intended to be, and is not, a regulation of commerce among the States. The statute of Massachusetts of March 10, 1891, c. 58, “ to prevent deception in the manufacture and sale of imitation butter,” in its application to the sales of oleomargarine artificially colored so as to cause it to look like yellow butter and brought into Massachusetts, is not in conflict with 462 OCTOBER TERM, 1894. Opinion of the Court. tlie clause of the Constitution of the United States investing Congress with power to regulate commerce among the several States. Leisy v. Hardin, 135 U. S. 100, 124, is restrained in its application to the case there actually presented for determination, and held not to justify the broad contention that a State is powerless to prevent the sale of articles of food manufactured in or brought from another State, and subjects of traffic or commerce, if their sale may cheat the people into purchasing something they do not intend to buy, and which is wholly different from what its condition and appearance import. The judiciary of the United States should not strike down a legislative enactment of a State, especially if it has direct connection with the social order, the health and the morals of its people, unless such legislation plainly and palpably violates some right granted or secured by the National Constitution, or encroaches upon the authority delegated to the United States for the attainment of objects of national concern. The case is stated in the opinion. Mr. Robert M. Morse, (with whom were Mr. Albert H. Veeder and Mr. William J. Campbell on the brief,) for plaintiff in error. Mr. Albert E. Pillsbury for defendant in error. Mr. Justice Harlan delivered the opinion of the court. Plumley, the plaintiff in error, was convicted in the Municipal Court of Boston upon the charge of having sold in that city on the 6th day of October, 1891, in violation of the law of Massachusetts, a certain article, product and compound known as oleomargarine, made partly of fats, oils and oleaginous substances and compounds thereof, not produced from unadulterated milk or cream but manufactured in imitation of yellow butter produced from pure unadulterated milk and cream. The prosecution was based upon a statute of that Commonwealth approved March 10, 1891, Mass. Stats. 1891, c. 58, p. 695, entitled “ An act to prevent deception in the manufacture and sale of imitation butter.” By that statute it is provided as follows: “ Section 1. No person by himself or his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale or have in his possession with intent to sell, any article, product or compound made wholly or partly out of any PLUMLEY v. MASSACHUSETTS. 463 Opinion of the Court. fat, oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, which shall be in imitation of yellow butter produced from pure unadulterated milk or cream of the same : provided, That nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter. “ Section 2. Whoever violates any of the provisions of section one of this act shall be punished by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment in the house of correction for a term not exceeding one year. “ Section 3. Inspectors of milk shall institute complaints for the violation of the provisions of this act when they have reasonable cause to believe that any of its provisions have been violated ; and on the information of any person who lays before them satisfactory evidence by which to sustain such complaint, said inspectors may enter all places where butter or imitations thereof are stored or kept for sale, and shall also take specimens of suspected butter and imitations thereof and cause them to be analyzed or otherwise satisfactorily tested, the result of which analysis or test they shall record and preserve as evidence ; and a certificate of such result sworn to by the analyzer, shall be admitted in evidence in all prosecutions under this act. The expense of such analysis or test, not exceeding twenty dollars in any one case, may be included in the costs of such prosecutions. Whoever hinders, obstructs, or in any way interferes with any inspector in the performance of his duty shall be punished by a fine of fifty dollars for the first offence, and one hundred dollars for each subsequent offence. “ Section 4. This act shall not be construed to impair or prevent the prosecution and punishment of any violation of laws existing at the time of its passage and committed prior to its taking effect.” The defendant was found guilty of the offence charged. 464 OCTOBER TERM, 1894. Opinion of the Court. The court adjudged that he pay a fine of one hundred dollars and on default thereof stand committed in the common jail of Suffolk County until the fine was paid. Such default having occurred, a writ of commitment was issued under which he was taken for the purpose of imprisoning him in jail until the fine was paid. He sued out a writ of habeas corpus from the Supreme Judicial Court of Massachusetts upon the ground that he was restrained of his liberty in violation of the Constitution and laws of the United States. In his petition for the writ the accused set forth, in substance, that at the time and place charged he offered for sale and sold one package containing ten pounds of oleomargarine, manufactured from pure animal fats or substances and designed to take the place of butter produced from pure, unadulterated milk or cream. He also alleged that the oleomargarine in question was manufactured by a firm of which he was an agent, and the members of which were citizens and residents of Illinois engaged at the city of Chicago in the business of manufacturing that article and shipping it to various cities, towns, and places in Illinois and in other States and there selling the same; and that all oleomargarine manufactured by that firm and by other leading manufacturers was a wholesome, nutritious, palatable article of food, in no way deleterious to the public health or welfare. The petitioner claimed that the statute of Massachusetts was repugnant to the clause of the Constitution providing that the Congress shall have power to regulate commerce among the several States; to the clause declaring that the citizens of each State shall be entitled to all the privileges and immunities of citzens in the several States; to the clause providing that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; to the clause declaring that private property shall not be taken for public purposes; and to the act of Congress of August 2,1886, PLUMLEY v. MASSACHUSETTS. 465 Opinion of the Court. c. 840, entitled “ An act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine.” 24 Stat. 209; Rev. Stat. Suppl. 2d ed. 505. The case was heard before one of the Justices of that court and was reported to the full court on the petition and on the following facts and offer of proof: “ The proceedings are as alleged in the petition. The article sold by the petitioner was the article the sale of which is forbidden by chapter 58 of the acts of 1891. Oleomargarine has naturally a light-yellowish color, but the article sold by the petitioner was artificially colored in imitation of yellow butter. “The allegations concerning the quality or wholesome character of the article sold are not admitted. The petitioner offers to prove the allegations of the petition in respect to the character and qualities of the article, and the Commonwealth objects to such proofs as immaterial, and the petitioner is to have the benefit of his offer if found material. “ It is admitted that the article sold was sent by the manufacturers thereof in the State of Illinois to the petitioner, their agent in Massachusetts, and was sold by him in the original package, and that in respect to the article sold the importers and the petitioners had complied with all the requirements of the act of Congress regulating the sale of oleomargarine, and it was marked and distinguished by all the marks, words, and stamps required of oleomargarine by the laws of this Commonwealth.” It was adjudged that the prisoner be remanded to the custody of the keeper of the common jail to be therein confined, the opinion of that court being that the statute of Massachusetts was not in violation of the Constitution or laws of the United States, and, consequently, that the petitioner was not illegally restrained of his liberty. 156 Mass. 236. The present writ of error brings up that judgment for review. The learned counsel for the appellant states that Congress in the act of August 2, 1886, has legislated fully on the subject of oleomargarine. This may be true so far as the purposes of that act are concerned. But there is no ground tp VOL. CLV—30 466 OCTOBER TERM, 1894. Opinion of the Court. suppose that Congress intended in that enactment to interfere with the exercise by the States of any authority they could rightfully exercise over the sale within their respective limits of the article defined as oleomargarine. The statute imposed certain special taxes upon manufactures of oleomargarine, as well as upon wholesale and retail dealers in that compound. And it is expressly declared (§ 3) that sections 3232 to 3241 inclusive and section 3243 of the Revised Statutes, Title Internal Revenue, “ are, so far as applicable, made to extend to and include and apply to the special taxes ” so imposed, “ and to the persons upon whom they are imposed.” Section 3243 of the Revised Statutes is in these words: “ The payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any State for carrying on the same within such State, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such State or in places prohibited by municipal law ; nor shall the payment of any such tax be held to prohibit any State from placing a duty or tax on the same trade or business, for State or other purposes.” It is manifest that this section was incorporated into the act of August 2, 1886, to make it clear that Congress had no purpose to restrict the power of the States over the subject of the manufacture and sale of oleomargarine within their respective limits. The taxes prescribed by that act were imposed for national purposes, and their imposition did not give authority to those who paid them to engage in the manufacture or sale of oleomargarine in any State which lawfully forbade such manufacture or sale, or to disregard any regulations which a State might lawfully prescribe in reference to that article. License Tax Cases, 5 Wall. 462, 474; Peroewr n. Commonwealth, 5 Wall. 475 ; United States v. Dewitt, 9 Wall. 41. Nor was the act of Congress relating to oleomargarine intended as a regulation of commerce among the States. Its provisions do not have special application to the transfer of oleomargarine from one State of the Union to another. They PLUMLEY v. MASSACHUSETTS. 467 Opinion of the Court. relieve the manufacturer or seller, if he conforms to the regu lations prescribed by Congress or by the Commissioner of Internal Revenue under the authority conferred upon him in that regard, from penalty or punishment so far as the general government is concerned, but they do not interfere with the exercise by the States of any authority they possess of preventing deception or fraud in the sales of property within their respective limits. The vital question in this case is, therefore, unaffected by the act of Congress or by any regulations that have been established in execution of its provisions. That question is, whether, as contended by the petitioner, the statute under examination in its application to sales of oleomargarine brought into Massachusetts from other States is in conflict with the clause of the Constitution of the United States investing Congress with power to regulate commerce among the several States. This is the only question the learned counsel for the petitioner urges upon our attention, and, in view of the decision in Powell v. Pennsylvania, 127 U. S. 678, is the only one that we need consider. It will be observed that the statute of Massachusetts which is alleged to be repugnant to the commerce clause of the Constitution does not prohibit the manufacture or sale of all oleomargarine, but only such as is colored in imitation of yellow butter produced from pure unadulterated milk or cream of such milk. If free from coloration or ingredient that “ causes it to look like butter,” the right to sell it “ in a separate and distinct form, and in such manner as will advise the consumer of its real character,” is neither restricted nor prohibited. It appears, in this case, that oleomargarine, in its natural condition, is of “ a light-yellowish color,” and that the article sold by the accused was artificially colored “ in imitation of yellow butter.” Now, the real object of coloring oleomargarine so as to make it look like genuine butter is that it may appear to be what it is not, and thus induce unwary purchasers, who do not closely scrutinize the label upon the package in which ]t is contained, to buy it as and for butter produced from unadulterated milk or cream from such milk. The suggestion 468 OCTOBER TERM, 1894. Opinion of the Court. that oleomargarine is artificially colored so as to render it more palatable and attractive can only mean that customers are deluded, by such coloration, into believing that they are getting genuine butter. If any one thinks that oleomargarine, not artificially colored so as to cause it to look like butter, is as palatable or as wholesome for purposes of food as pure butter, he is, as already observed, at liberty under the statute of Massachusetts to manufacture it in that State or to sell it there in such manner as to inform the customer of its real character. He is only forbidden to practise, in such matters, a fraud upon the general public. The statute seeks to suppress false pretences and to promote fair dealing in the sale of an article of food. It compels the sale of oleomargarine for what it really is, by preventing its sale for what it is not. Can it be that the Constitution of the United States secures to any one the privilege of manufacturing and selling an article of food in such manner as to induce the mass of people to believe that they are buying something which, in fact, is wholly different from that which is offered for sale ? Does the freedom of commerce among the States demand a recognition of the right to practice, a deception upon the public in the sale of any articles, even those that may have become the subject of trade in different parts of the country ? Several cases in this court were cited in argument to support the contention that the grant of power to Congress to regulate interstate commerce extended to such legislation as that enacted by the Commonwealth of Massachusetts. Let us see whether those cases announce any principle that compels this court to adjudge that the States have surrendered to the general government the power to prevent fraud in the sales of property. Railroad Co. v. Ilusen, 95 U. S. 465,473, involved the validity of a statute of Missouri which was so framed as to prevent the bringing into that State of any Texan, Mexican, or Indian cattle, between March 1 and December 1 in any year, whether free from disease or not, or whether their coming into the State would be injurious to its inhabitants or not. If they were brought into Missouri for the purpose of carrying them PLUMLEY v. MASSACHUSETTS. 469 Opinion of the Court. through that State without unloading them, such burdens and restrictions were imposed as amounted to an exclusion from its limits of any cattle such as those described in the statute. This court held that the Missouri statute was neither a quarantine nor an inspection law ; that its object and effect was to meet at the borders of Missouri a large and common subject of commerce and prohibit its crossing the state line during the larger part of each year, and to obstruct interstate commerce and discriminate between the property of citizens of one State and that of citizens of other States. The statute was, consequently, adjudged to be unconstitutional. Minnesota v. Barber, 136 U. S. 313, 322, involved the validity of a statute of Minnesota which, by its necessary operation, excluded from the markets of that State all fresh beef, veal, mutton, lamb, or pork, in whatever form, and although entirely sound, healthy, and fit for human food, taken from animals slaughtered in other States; and which directly tended to restrict the slaughtering of animals, whose meat was to be sold in Minnesota, to those engaged in such business in that State. The court said : “ If the object of the statute had been to deny altogether to the citizens of other States the privilege of selling, within the limits of Minnesota, for human food, any fresh beef, veal, mutton, lamb, or pork, from animals slaughtered outside of that State, and to compel the people of Minnesota, wishing to buy such meats, either to purchase those taken from animals inspected and slaughtered in the State, or to incur the cost of purchasing them, when desired for their own domestic use, at points beyond the State, that object is attained by the act in question. Our duty to maintain the Constitution will not permit us to shut our eyes to these obvious and necessary results of the Minnesota statute. If this legislation does not make such discrimination against the products and business of other States in favor of the products and business of Minnesota as interferes with and burdens commerce among the several States, it would be difficult to enact legislation that would have that result.” trimmer v. Rehman, 138 U. S. 78, 82, involved the validity 470 OCTOBER TERM, 1894. Opinion of the Court. of a statute of Virginia relating to the sale,’ in that Commonwealth, of unwholesome meat. The statute was held to be unconstitutional as prohibiting, by its necessary operation, the sale in Virginia of beef, veal, or mutton, although entirely wholesome, if from animals slaughtered one hundred miles or over from the place of sale. The court said: “ Undoubtedly, a State may establish regulations for the protection of its people against the sale of unwholesome meats, provided such regulations do not conflict with the powers conferred by the Constitution upon Congress, or infringe rights granted or secured by that instrument. But it may not, under the guise of exerting its police powers, or of enacting inspection laws, make discriminations against the products and industries of some of the States in favor of the products and industries of its own or of other States. The owner of the meats here in question, although they were from animals slaughtered in Illinois, had the right, under the Constitution, to compete in the markets of Virginia upon terms of equality with the owners of like meats from animals slaughtered in Virginia or elsewhere within one hundred miles from the place of sale. Any local regulation which, in terms or by its necessary operation, denies this equality in the markets of the State is, when applied to the people and products or industries of other States, a direct burden upon commerce among the States, and, therefore, void.” This case was followed in Voight n. Wright, 141 U. S. 62, 66, where this court held a statute of Virginia, relating to the inspection of flour brought into that Commonwealth, to be unconstitutional, because it required the inspection of flour from other States, when no such inspection was required of flour manufactured in Virginia. So in Walling v. Michigan, 116 U. S. 446, 459, which involved the validity of a statute of Michigan imposing a tax upon persons not residing or having their principal place of business within the State, but engaged there in the business of selling or soliciting the sale of intoxicating liquors to be shipped into the State from places without it, but not imposing a similar tax upon persons selling or soliciting the sale of intoxicating liquors manufactured in that State. The statute PLUMLEY v. MASSACHUSETTS. 471 Opinion of the Court. was held to be in restraint of interstate commerce, and therefore void. It having been suggested that the tax imposed was an exercise of the police power of the State for the discouragement of the use of intoxicating liquors, and the preservation of the health and morals of the people, this court said: “ This would be a perfect justification of the act if it did not discriminate against the citizens and products of other States in a matter of commerce among the States, and thus usurp one of the prerogatives of the national legislature.” It is obvious that none of the above cases presented the question now before us. Each of them involved the question whether one State could burden interstate commerce by means of discriminations enforced for the benefit of its own products and industries at the expense of the products and industries of other States. It did not become material in any of them to inquire, nor did this court inquire, whether a State, in the exercise of its police powers, may protect the public against the deception and fraud that would be involved in the sale within its limits for purposes of food of a compound that had been so prepared as to make it appear to be what it was not. While in each of those cases it was held that the reserved police powers of the States could not control the prohibitions of the Federal Constitution nor the powers of the government it created, {New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650,) it was distinctly stated that the grant to Congress of authority to regulate foreign and interstate commerce did not involve a surrender by the States of their police powers. If the statute of Massachusetts had been so framed as to be applicable only to oleomargarine manufactured in other States, and which had been made in imitation of pure butter, the case would have been wholly different. But we have seen that it is not of that character, but is aimed at all oleomargarine artificially colored so as to cause it to look like genuine butter and offered for sale in Massachusetts. In none of the above cases is there to be found a suggestion or intimation that the Constitution of the United States took from the States the power of preventing deception and fraud 472 OCTOBER TERM, 1894. Opinion of the Court. in the sale, within their respective limits, of articles in what ever State manufactured, or that that instrument secured to any one the privilege of committing a wrong against society. Referring to the general body of the law, from whatever source derived, existing in each State of the Union and regulating the rights and duties of all within its jurisdiction, even those engaged in interstate commerce, this court, speaking by Mr. Justice Matthews, said in Smith v. Alabama, 124 U. S. 465, 476, that “it was in contemplation of the continued existence of this separate system of law in each State that the Constitution of the United States was framed and ordained with such legislative powers as are therein granted expressly or by reasonable implication.” It was, consequently, held in that case that a State may enact laws and prescribe regulations, applicable to carriers engaged in interstate and foreign commerce, to insure the safety of persons carried by them as well as the safety of persons and things liable to be affected by their acts while they were within the territorial jurisdiction of the State. So, in Dent v. West Virginia, 129 U. S. 114, 122, which involved the validity of a state enactment making it a public offence for any one to practise medicine in West Virginia without complying with certain prescribed conditions, this court, speaking by Mr. Justice Field, said: “ The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as deception and fraud.” If there be any subject over which it would seem the States ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to be surrendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may, indeed, indirectly or incidentally affect trade in such products transported from one State to another State. But that circumstance does not show that laws of the character alluded to are inconsistent with the power of Congress to regulate commerce among the States. PLUMLEY v. MASSACHUSETTS. 473 Opinion of the Court. For, as said by this court in Sherlock n. Alling, 93 U. S. 99, 103: “ In conferring upon Congress the regulation of commerce, it was never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution. . . . And it may be said generally, that the legislation of a State, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only directly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit.” But the case most relied on by the petitioner to support the proposition that oleomargarine, being a recognized article of commerce, may be introduced into a State and there sold in original packages, without any restriction being imposed by the State upon such sale, is Leisy n. Hardin, 135 U. S. 100. The majority of the court in that case held that ardent spirits, distilled liquors, ale and beer, were subjects of exchange, barter, and traffic, and, being articles of commerce, their sale while in the original packages in which they are carried from one State to another State, could not without the assent of Congress be forbidden by the latter State ; that the parties in that case, who took beer from Illinois into Iowa, had the right, under the Constitution of the United States, to sell it in Iowa in such original packages, any statute of that State to the contrary notwithstanding; and that Iowa had no control over such beer until the original packages were broken and the beer in them became mingled in the common mass of property within its limits. “Up to that point of time,” the court said, “ we hold that in the absence of Congressional permission to do so, the State had no power to interfere by seizure, or any other action in prohibition of 474 OCTOBER TERM, 1894. Opinion of the Court. importation and sale by the foreign or non-resident importer.” р. 124. It is sufficient to say of Leisy v. Hardin that it did not in form or in substance present the particular question now under consideration. The article which the majority of the court in that case held could be sold in Iowa in original packages, the statute of that State to the contrary notwithstanding, was beer manufactured in Illinois and shipped to the former State to be there sold in such packages. So far as the record disclosed, and so far as the contentions of the parties were concerned, the article there in question was what it appeared to be, namely, genuine beer, and not a liquid or drink colored artificially so as to cause it to look like beer. The language we have quoted from Leisy v. Hardin must be restrained in its application to the case actually presented for determination, and does not justify the broad contention that a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy and which is wholly different from what its condition and appearance import. At the term succeeding the decision in Leisy v. Hardin, this court in Rohrer’s Case, 140 U. S. 545, 546, sustained the validity of the act of Congress of August 8,1890, с. 728, 26 Stat. 313, known as the Wilson act,£and in the light of the decision in Leisy v. Hardin, said, by the Chief Justice, that “ the power of the State to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity, is a power originally and always belonging to the States, not surrendered by them to the general government nor directly restrained by the Constitution of the United States, and essentially exclusive,” and that “it is not to be doubted that the power to make the ordinary regulations of police remains with the individual States, and cannot be assumed by the national government.” The judgment of the court below is supported by many well-considered cases. PLUMLEY v. MASSACHUSETTS. 475 Opinion of the Court. In People v. Arenburg, 105 N. Y. 123, 129, 130, the precise question now before us came before the Court of Appeals of New York. That court, after referring to its decision in People v. Marx, 99 NT. Y. 377, 385, adjudging a statute of New York relating to the manufacture of oleomargarine to be in violation of the fundamental right and privilege of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, said: “ Assuming, as is claimed, that butter made from animal fat or oil is as wholesome, nutritious, and suitable for food as dairy butter; that it is composed of the same elements and is substantially the same article, except as regards its origin, and that it is cheaper, and that it would be a violation of the constitutional rights and liberties of the people to prohibit them from manufacturing or dealing in it, for the mere purpose of protecting the producers of dairy butter against competition, yet it cannot be claimed that the producers of butter, made from animal fat, or oils, have any constitutional right to resort to devices for the purpose of making their product resemble in appearance the more expensive article known as dairy butter, or that it is beyond the power of the legislature to enact such laws as they may deem necessary to prevent the simulated article* being put upon the market in such a form and manner as to be calculated to deceive.” “If it possesses,” continued the court, “ the merits which are claimed for it, and is innocuous, those making and dealing in it should be protected in the enjoyment of liberty in those respects, but they may legally be required to sell it for and as what it actually is and upon its own merits, and are not entitled to the benefit of any additional market value which may be imparted to it by resorting to artificial means to make it resemble dairy butter in appearance. It may be butter, but it is not butter made from cream, and the difference in cost or market value, if no other, would make it a fraud to pass off one article for the other.” Again : “ The statutory prohibition is aimed at a designed and intentional imitation of dairy butter, in manufacturing the new product, and not at a resemblance in qualities inherent in the articles themselves 476 OCTOBER TERM, 1894. Opinion of the Court. and common to both.” The court, therefore, held that arti-ficial coloring of oleomargarine for the mere purpose of making it resemble dairy butter came within the statutory prohibition against imitation, and “ that such prohibition is within the power of the legislature, and rests upon the same principle which would sustain a prohibition of coloring winter dairy butter for the purpose of enhancing its market price by making it resemble summer dairy butter, should the legislature deem such a prohibition necessary or expedient.” In McAllister v. State, 72 Maryland, 390, the Court of Appeals of Maryland sustained the validity of a statute of that State declaring it unlawful to offer for sale as an article of food an article in imitation and semblance of natural butter. The object of the statute being to protect purchasers against fraud and deception, the power of the legislature, the court said, following the previous decision in Pierce v. State, 63 Maryland, 596, was too plain to be questioned. In Waterbury v. Newton, 21 Vroom, (50 N. J. Law,) 534, 537, the New Jersey Supreme Court sustained the validity of an act that forbade the sale of oleomargarine colored with annotto. In response to the suggestion that oleomargarine colored with annotto was a wholesome article of food, the sale of which could not be prohibited, the court said : “ If the sole basis for this statute were the protection of the public health, this objection would be pertinent, and might require us to consider the delicate questions, whether and how far the judiciary can pass upon the adaptability of the means which the legislature has proposed for the accomplishment of its legitimate ends. But, as already intimated, this provision is not aimed at the protection of the public health. Its object is to secure to dairymen and to the public at large a fuller and fairer enjoyment of their property, by excluding from the market a commodity prepared with a view to deceive those purchasing it. It is not pretended that annotto has any other function in the manufacture of oleomargarine than to make it a counterfeit of butter, which is more generally esteemed, and commands a higher price. That the legislature may repress such counterfeits does not admit, I think, of substantial ques- PLUMLEY v. MASSACHUSETTS. 477 Opinion of the Court. tion. Laws of like character have of late years been frequently assailed before the courts, but always without success.” It was further held by the court that the statute of New Jersey was not repugnant to the clause of the Constitution empowering Congress to regulate commerce among the States, but that the package there in question, and which had been brought from Indiana, became, on its delivery in Jersey City, subject to the laws of New Jersey relating generally to articles of that nature. So in State v,. Marshall, 64 N. H. 549, 551, 552, arising under a statute of New Hampshire relating to the sale of imitation butter, the court said : “ Butter is a necessary article of food, of almost universal consumption; and if an article compounded from cheaper ingredients, which many people would not purchase or use if they knew what it was, can be made so closely to resemble butter that ordinary persons cannot distinguish it from genuine butter, the liability to deception is such that the protection of the public requires those dealing in the article in some way to designate its real character. . . . The prohibition of the statute being directed against imposition in selling or exposing for sale artificial compounds resembling butter in appearance and flavor, and liable to be mistaken for genuine butter, it is no defence that the article sold or exposed for sale is free from impurity and unwholesome ingredients, and healthy and nutritious as an article of food.” In State n. Addington, 77 Missouri, 110, 118, the court, referring to a statute prohibiting the manufacture and sale of oleaginous substances, or compounds of the same, in imitation of dairy products, said : “ The central idea of the statute before us seems very manifest; it was, in our opinion, the prevention of facilities for selling or manufacturing a spurious article of butter, resembling the genuine article so closely in its external appearance as to render it easy to deceive purchasers into buying that which they would not buy but for the deception. The history of legislation on this subject, as well as the phraseology of the act itself, very strongly tends to confirm this view. If this was the purpose of the enact- 478 OCTOBER TERM, 1894. Opinion of the Court. ment now under discussion, we discover nothing in its provisions which enables us, in the light of the authorities, to say that the legislature, when passing the act, exceeded the power confided to that department of the government; and unless we can say this, we cannot hold the act to be anything less than valid.” To the same effect are Powell v. Commonwealth, 114 Penn. St. 265 ; Butler v. Chambers, 36 Minnesota, 69 ; and Weideman v. State, 56 N. W. Rep. (Minnesota) 688. In Railroad Co. v. Husen, above cited, the court, speaking generally, said that the police power of a State extended to the making of regulations “promotive of domestic order, morals, health, and safety.” It was there held, among other things, to be “ within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others,” and that “ the police powers of a State justified the adoption of precautionary measures against social evils,” and the enactment of such laws as would have “immediate connection with the protection of persons and property against the noxious acts of others.” It has therefore been adjudged that the States may legislate to prevent the spread of crime, and may exclude from their limits paupers, convicts, persons likely to become a public charge, and persons afflicted with contagious or infectious diseases. These and other like things having immediate connection with the health, morals, and safety of the people, may be done by the States in the exercise of the right of self-defence. And yet it is supposed that the owners of a com pound which has been put in a condition to cheat the public into believing that it is a particular article of food in daily use and eagerly sought by people in every condition of life, are protected by the Constitution in making a sale of it against the will of the State in which it is offered for sale, because of the circumstance that it is an original package, and has become a subject of ordinary traffic. We are unwilling to accept this view. We are of opinion that it is within the power of a State to exclude from its markets any compound manufactured in another State, which has been artificially colored or adul- PLUMLEY v. MASSACHUSETTS. 479 Opinion of the Court. terated so as to cause it to look like an article of food in general use, and the sale of which may, by reason of such coloration or adulteration, cheat the general public into purchasing that which they may not intend to buy. The Constitution of the United States does not secure to any one the privilege of defrauding the public. The deception against which the statute of Massachusetts is aimed is an offence against society; and the States are as competent to protect their people against such offences or wrongs as they are to protect them against crimes or wrongs of more serious character. And this protection may be given without violating any right secured by the national Constitution, and without infringing the authority of the general government. A State enactment forbidding the sale of deceitful imitations of articles of food in general use among the people does not abridge any privilege secured to citizens of the United States, nor, in any just sense, interfere with the freedom of commerce among the several States. It is legislation which “ can be most advantageously exercised by the States themselves.” Gibbons n. Ogden, 9 Wheat. 1, 203. We are not unmindful of the fact — indeed, this court has often had occasion to observe — that the acknowledged power of the States to protect the morals, the health, and safety of their people by appropriate legislation, sometimes touches, in its exercise, the line separating the respective domains of national and state authority. But in view of the complex system of government which exists in this country, “ presenting,” as this court, speaking by Chief Justice Marshall, has said, “ the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union,” the judiciary of the United States should not strike down a legislative enactment of a State — especially if it has direct connection with the social order, the health, and the morals of its people — unless such legislation plainly and palpably violates some right granted or secured by the national Constitution or encroaches upon the authority dele- 480 OCTOBER TERM, 1894. Dissenting Opinion: Fuller, C.J., Field, Brewer, JJ. gated to the United States for the attainment of objects of national concern. We cannot so adjudge in reference to the statute of Massachusetts, and as the court below correctly held that the plaintiff in error was not restrained of his liberty in violation of the Constitution of the United States, the judgment must be affirmed. Mr. Justice Jackson, now absent, was present at the argument and participated in the decision of this case. He concurs in this opinion. Judgment affirmed. Mr. Chief Justice Fuller, with whom concurred Mr. Justice Field and Mr. Justice Brewer, dissenting. The power vested in Congress to regulate commerce among the several States is the power to prescribe the rule by which that commerce is to be governed, and, as that commerce is national in its character and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the States to do so, it thereby indicates its will that such commerce shall be free and untrammelled. Manifestly, whenever state legislation comes in conflict with that will, it must give way. In whatever language such legislation may be framed, its purpose must be determined by its natural and reasonable effect, and the presumption that it was enacted in good faith cannot control the determination of the question whether it is or is not repugnant to the Constitution of the United States. Upon this record oleomargarine is conceded to be a wholesome, palatable, and nutritious article of food, in no way deleterious to the public health or welfare. It is of the natural color of butter and looks like butter, and is often colored, as butter is, by harmless ingredients, a deeper yellow, to render it more attractive to consumers. The assumption that it is thus colored to make it appear to be a different article, generically, than it is, has no legal basis in this case to rest on. It cannot be denied that oleomargarine is a recognized PLUMLEY v. MASSACHUSETTS. 481 Dissenting Opinion : Fuller, C.J., Field, Brewer, JJ. article of commerce, and moreover, it is regulated as such, for revenue purposes, by the act of Congress of August 2, 1886, c. 840, 24 Stat. 209 ; United States v. Eaton, 144 U. S. 677. The act under consideration prohibits its sale if “ in imitation of yellow butter,” though it may be sold “ in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.” This prohibits its sale in its natural state of light yellow, or when colored a deeper yellow, because in either case it looks like butter. The statute is not limited to imitations made for a fraudulent purpose, that is, intentionally made to deceive. The act of Congress requiring, under penalty, oleomargarine to be sold only in designated packages, marked, stamped, and branded as prescribed, and numerous acts of Massachusetts, minutely providing against deception in that respect, (Pub. Stat. Mass, c. 56; Stats. 1884, c. 310; Stats. 1886, c. 317; Stats. 1891, c. 412,) amply protect the public from the danger of being induced to purchase oleomargarine for butter. The natural and reasonable effect of this statute is to prevent the sale of oleomargarine because it looks like butter. How this resemblance, although it might possibly mislead a purchaser, renders it any the less an article of commerce, it is difficult to see. I deny that a State may exclude from commerce legitimate subjects of commercial dealings because of the possibility that their appearance may deceive purchasers in regard to their qualities. In the language of Knowlton, J., in the dissenting opinion below, I am not “ prepared to hold that no cloth whose fabric is so carded and spun and woven and finished as to give it the appearance of being wholly wool, when in fact it is in part cotton, can be a subject of commercial transactions, or that no jewelry which is not gold, but is made to resemble gold, and no imitations of precious stones, however desirable they may be considered by those who wish to wear them, shall be deemed articles of merchandise in regard to which Congress may make commercial regulations.” VOL. CLV—31 482 OCTOBER TERM, 1894. Statement of the Case. Other illustrations will readily suggest themselves. The concession involves a serious circumscription of the realm of trade and destroys the rule by an unnecessary exception. The right to import, export, or sell oleomargarine in the original package under the regulations prescribed by Congress cannot be inhibited by such legislation as that before us. Fluctuation in decision in respect of so vital a power as that to regulate commerce among the several States, is to be deprecated, and the opinion and judgment in this case seem to me clearly inconsistent with settled principles. I dissent from the opinion and judgment, and am authorized to say that Mr. Justice Field and Mr. Justice Brewer concur with me in so doing. POSTAL TELEGRAPH CABLE COMPANY u ALABAMA. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA. No. 702. Submitted November 19,1894. —Decided December 17,1894. Under the Judiciary Acts of the United States, a suit taken between a State and a citizen or corporation of another State is not a suit between citizens of different States; and the Circuit Court of the United States has no jurisdiction of it, unless it arises under the Constitution, laws, or treaties of the United States. Under the acts of March 3, 1887, c. 373, and August 13, 1888, c. 866, a case (not depending on the citizenship of the parties, nor otherwise specially provided for) cannot be removed from a state court into the Circuit Court of the United States, as one arising under the Constitution, laws, or treaties of the United States, unless that appears by the plaintiff’s statement of his own claim; and, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in the subsequent pleadings. This was an action brought November 4, 1892, in the circuit court of Montgomery County in the State of Alabama, by the State of Alabama against the Postal Telegraph Cable Company, a corporation organized under the laws of the State POSTAL TELEGRAPH CABLE CO. v. ALABAMA. 483 Statement of the Case. of New York, to recover taxes and penalties claimed by the State of Alabama under its statute of February 28, 1889, c. 103. By that statute, it is enacted that “all express and telegraph and sleeping-car companies, doing business between points wholly within this State, and without reference to their interstate business, shall pay in advance on the first day of January, in each year, to the auditor of the State of Alabama, a privilege tax of five hundred dollars, together with one dollar for each mile of telegraph line, or of railroad tracks, on or along which the lines of said companies operate or extend ; and no express or telegraph company, which has paid the privilege tax hereby required, shall be liable to pay any other privilege or other tax in this State, except licenses required by cities and towns, and except upon their real estate, fixtures and other property, which shall be taxed at the same rate as is now levied and collected upon other property in this State: Provided, that all express or telegraph companies, which have heretofore paid their taxes to the State under existing laws, for the year 1889, are hereby exempt from the provisions of this clause for said year : And provided further, that all telegraph companies, whose lines on which business is done wholly within the State do not exceed 150 miles, shall pay, at the same time and in the same manner and for the same purpose, a privilege tax at the rate of one dollar a mile for each mile of railroad along or upon which they operate or do business, and no more: And provided further, that said company, or some agent thereof, shall, when making payment of the tax hereinbefore mentioned, report under oath the mileage of railroad operated by them respectively; and, in default of the payment of said tax, or the making of said report, for sixty days after maturity of said tax, a penalty of double the amount of the same shall be imposed on such defaulting companies.” Acts of Alabama of 1888-89, p. 89. The complaint consisted of three counts, the first of which was as follows: “ The plaintiff, the State of Alabama, claims of the defendant, the Postal Telegraph Company, a foreign corporation, 484 OCTOBER TERM, 1894. Statement of the Case. the sum of fifteen hundred dollars; for that whereas heretofore, to wit, on the first day of January, 1890, and for more than sixty days thereafter, the defendant did engage in the business of a telegraph company between points wholly within the State of Alabama, and did run and operate its lines on or along two hundred and fifty miles of railroad track within the State of Alabama, whereby it became and was the duty of the defendant to pay in advance on the first day of January, 1890, to the auditor of the State of Alabama, a privilege tax of five hundred dollars, together with the further sum of one dollar for each mile of railroad track on or along which the lines of the defendant as such telegraph company did operate or extend, and at the same time to report under oath the mileage of railroad track operated by it within the State of Alabama; and the plaintiff avers that the defendant made default in the payment of said tax, and in the making of said report, for more than sixty days, whereby it became and was and is liable to pay to the plaintiff a penalty in double the amount of said tax, that is to say, a penalty of fifteen hundred dollars, for which plaintiff here sues.” The second and third counts were precisely like the first, except that the second substituted January 1, 1891, for January 1, 1890; and that the third substituted January 1, 1892, and alleged that the defendant operated its lines on or along three hundred and twenty-eight miles of railroad track, and became liable to pay to the plaintiff a penalty of $1656. In December, 1892, the case was removed into the Circuit Court of the United States for the Middle District of Alabama, under the act of Congress of March 3, 1887, c. 373, (24 Stat. 552,) as corrected by the act of August 13, 1888, c. 866, (25 Stat. 433,) upon the petition of the defendant, alleging that it was a corporation organized under the laws of the State of New York in 1886 for the purpose of constructing, owning, using, and operating electric telegraph lines within that State, and extending beyond its limits into and across other States and Territories, for the purpose of commercial and interstate communication by telegraph lines for general public use; that it had its principal executive, financial, and POSTAL TELEGRAPH CABLE CO.* v. ALABAMA. 485 Statement of the Case. accounting offices in the city of New York; that it was “ engaged in the general telegraph business of receiving and sending telegrams over its lines for commercial purposes for the public, between citizens within the State of New York and other States, and across the same to and from other places within other States, and also in sending messages by telegraph communication between the several departments of the government of the United States and their officers and agents at a rate of charges designated and prescribed by the Postmaster General of the United States under the laws of Congress;” that on March 6, 1886, it accepted the provisions of the act of Congress of July 24, 1866, c. 230, (now title 65 of the Revised Statutes,) and in pursuance thereof the Postmaster General of the United States had annually from time to time designated it as one of the telegraph companies to transmit government messages for the United States; that most of its lines were upon the post roads of the United States; that now and during all these times it was a citizen and resident of the State of New York; and “that the said action is a suit of the civil nature at common law, in which the matter in dispute and the interests involved exceed, exclusive of the interests and costs, the sum or value of two thousand dollars; and that the controversy therein arises under the Constitution and laws of the United States and laws of the State of Alabama, and is wholly between citizens of different States, to wit, between your said petitioner, who avers that it was at the time of the bringing of this suit and still is a citizen and resident of the said State of New York, and the said plaintiff, the said State of Alabama, who, your petitioner avers, was then and still is a citizen and resident of the State of Alabama.” In May, 1893, the defendant filed in the Circuit Court of the United States an answer, setting up substantially the same facts as in its petition for removal. In January, 1894, the plaintiff filed an amended complaint, claiming for each of the years 1890,1891, and 1892, a privilege tax of $500, and a penalty of $1816; and the defendant filed an answer, similar to its original answer, and admitting the 486 OCTOBER TERM, 1894. Opinion of the Court. number of miles of telegraph line owned by it within the State. In February, 1894, the parties submitted the case to the judgment of the court upon an agreed statement of facts, in which the facts set up in the answer were admitted. The court thereupon gave judgment for the plaintiff for the sum of $3846.20; and the defendant sued out this writ of error. Hfr. T. Moultrie Mordecai and Mr. P. H. Gadsden for plaintiff in error. Mr. William L. Martin, Attorney General of the State of Alabama, for defendant in error. Mb. Justice Gray, after stating the case, delivered the opinion of the court. By section 1 of the act of Congress of March 3, 1875, c. 137, as amended by the acts of March 3, 1887, c. 373, and August 13, 1888, c. 866, it is enacted that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2000, “ and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority; or in which controversy the United States are plaintiffs or petitioners; or in which there shall be a controversy between citizens of different States ; ” “ or a controversy between citizens of the same State claiming lands under grants of different States; or a controversy between citizens of a State and foreign States, citizens or subjects.” And by section 2, the defendant’s right to remove a suit — whether arising under the Constitution, laws or treaties of the United States, or coming within any other class above enumerated—from a state court into the Circuit Court of the United States, is restricted to suits “ of which the Circuit Courts of the United States are given original jurisdiction by the preceding section. 25 Stat. 434. POSTAL TELEGRAPH CABLE CO. v. ALABAMA. 487 Opinion of the Court. The grounds upon which the present suit was removed from a court of the State of Alabama into the Circuit Court of the United States were that the controversy therein arose under the Constitution and laws of the United States, and that it was wholly between citizens of different States. But the suit was one brought by the State to recover taxes and penalties imposed by its own revenue laws, the jurisdiction over which belongs to its own tribunals, except so far as Congress, in order to secure the supremacy of the national Constitution and laws, has provided for a removal into the courts of the United States. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 290; Huntington v. Attrill, 146 U. S. 657, 672. And the complaint by which the suit was begun did not mention the Constitution or any law of the United States, or claim any right under either. A State is not a citizen. And, under the Judiciary Acts of the United States, it is well settled that a suit between a State and a citizen or a corporation of another State is not between citizens of different States; and that the Circuit Court of the United States has no jurisdiction of it, unless it arises under the Constitution, laws or treaties of the United States. Ames v. Kansas, 111 U. S. 449; Stone v. South Carolina, 117 U. S. 430; Germania Ins. Co. v. Wisconsin, 119 U. S. 473. It is equally well settled that under the provisions, above referred to, of the existing act of Congress, no suit can be removed by a defendant from a state court into the Circuit Court of the United States, as one arising under the Constitution, laws or treaties of the United States, unless the fact that it so arises appears by the plaintiff’s statement of his own claim; and that a deficiency in his statement, in this respect, cannot be supplied by allegations in the petition for removal, or in subsequent pleadings in the case. Tennessee v. Bank of Commerce, 152 U. S. 454; Cha/ppell v. Waterworth, ante, 102. The conclusion is inevitable, that the judgment of the Circuit Court of the United States must be reversed, and the case remanded to that court, with directions to remand it to the state court; and that, the case having been wrongfully 488 OCTOBER TERM, 1894. Statement of the Case. removed into the Circuit Court of the United States by the Postal Telegraph Cable Company, that company must pay the costs in that court, as well as in this court. Tennessee n. Bank of Commerce, above cited; Ilanrick v. Ilanrick, 153 U. S. 192. Judgment reversed accordingly. EAST LAKE LAND COMPANY v. BROWN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ALABAMA. No. 121. Submitted December 14,1894. — Decided December 17, 1894. Chappell v. Waterworth, 155 U. 8. 102, affirmed and applied to the point that, under the acts of March 3, 1887, c. 373, and August 13, 1888, c. 866, a case (not depending on the citizenship of the parties, nor otherwise specially provided for) cannot be removed from a state court into the Circuit Court of the United States, as one arising under the Constitution, laws, or treaties of the United States, unless that appears by the plaintiff’s statement of his own claim ; and if it does not so appear, the want cannot be supplied by any statement in the petition for removal, or in the subsequent pleadings. This action was commenced in the City Court of Birmingham, Alabama. The complaint was as follows: “ The plaintiff sues to recover the following tract of land, the north half of the southwest quarter of section fourteen (14), township seventeen (17), range two (2) west, in Jefferson County, Alabama, of which it was possessed before the commencement of this suit, and after such possession accrued the defendant entered thereupon and unlawfully withholds and detains the same, together with one thousand dollars for the detention thereof. The defendant pleaded “ not guilty,” and petitioned for the removal of the cause to the Circuit Court of the United States on the ground “ that said action was brought by the said East Lake Land Company for the purpose of recovering from petitioner the possession of the N. £ of the S. W. of section 14, township 17, of range 2 west, in Jefferson County, Alabama, of CHASE v. UNITED STATES. 489 Statement of the Case. which land petitioner was at the beginning of said suit and is now seized and possessed, and that petitioner’s right and title to said land is as a homestead entered by him under the homestead laws of the United States, and for which petitioner holds a certificate of entry under said statutes, and that petitioner’s title and right to said lands arise under the laws of the United States, and that the matter in dispute in this suit exceeds the sum of two thousand dollars, exclusive of costs.” The cause was so removed, and on trial a verdict was had for the defendant, and judgment on the verdict. The cause was brought here by writ of error. Mr. John T. Morgan for plaintiff in error. Mr. D. P. Bestoi for defendant in error. The Chief Justice : The judgment is reversed with costs, and the case remanded with a direction to remand it to the City Court of Birmingham, county of Jefferson, Alabama, on the authority of Chappell v. Waterworth, 155 U. S. 102. Reversed and remanded. CHASE v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 88. Argued November 19,1894. — Decided December 10,1894. Judgments in a District or Circuit Court of the United States in cases brought under the act of March 3, 1887, c. 359, 24 Stat. 505, are not required to be brought here for revision by appeal only, but may be brought by writ of error; but they will be reexamined here only when the record contains a specific finding of facts with the conclusions of law thereon. On the 1st day of May, 1870, the Postmaster General had no authority to contract in writing for the lease of accommodations for a local post office in a building for a term of twenty years. This writ of error brought up a judgment of the Circuit Court of the United States for the District of Indiana, dis- 490 OCTOBER TERM, 1894. Statement of the Case. missing a suit instituted against the United States by the personal representatives of Hiram W. Chase. It appears from the statement of facts made by the court below that on the 17th day of July, 1866, John K Snider leased for a term of ten years a certain lot with the building thereon in Lafayette, Indiana, to be occupied by the United States as a post office ; that the building was so occupied until December, 1869, when it was destroyed by fire; that James Montgomery, previous to the fire, became the owner of the property, and entitled to the benefit of the lease ; that on the •1st day of May, 1870, Montgomery made a lease, in form to the United States represented by the Postmaster General, for the term of twenty years and at an annual rental of $1500, payable in equal quarterly instalments, of certain parts of a building which he covenanted to erect upon the same lot. He also covenanted to supply and keep in repair to the satisfaction of the Postmaster General all boxes and fixtures necessary for a post office in that building. Montgomery erected the required building and the United States took possession of it. On the 15th day of April, 1870, he assigned his interest in the lease to one Tuttle, who, on the 10th of February, 1871, assigned to Chase, the testator of the plaintiff. Subsequently, May 10, 1886, the government, without complaining of any violation of the terms of the lease, vacated the premises and refused to pay rent thereafter. During the occupancy of the premises Chase laid out and pended for furniture, fixtures, and required changes the sum of $2000, and, at the time the premises were vacated, he was engaged in conformity with the request of the postal officers in making other repairs and additions. The present action was brought on the lease to recover the amount due for the unexpired term. The Circuit Court adjudged that the Postmaster General had no authority to execute the lease, and that the government was not liable to suit upon it. For that reason the suit was dismissed. 44 Fed. Rep. 732. That judgment being brought here by writ of error, a motion was made to dismiss the writ, on the ground that there CHASE v. UNITED STATES. 491 Argument in Support of Motion to Dismiss. was no jurisdiction, in this court by writ of error to review the judgment complained of. The hearing of this motion was postponed to the hearing on the merits. Mr. John C. Chaney, for plaintiff in error, (Mr. Addison C. Harris filed the brief for same,) said, on the merits: The Postmaster General had, by virtue of his power “ to establish post offices,” full power to rent, or lease, in short all the power of Congress which had not been taken from him by some negative act of Congress; and the power to lease, while it has been treated as a power “ necessarily implied ” from the power “ to establish,” is something more. It is more correct to call it an “ included ” power than an “ implied” power; but whatever be its correct name, it was a power which reposed in the Postmaster General’s hands at the time he made the lease sued on ; so it was “ authorized by law ” within section 3732 of the Revised Statutes. Ware v. United States, 4 Wall. 617. When it is admitted that the Postmaster General has power to make a lease, it follows that, in the absence of a statute limiting the length of time leases may run, he has plenary power (unless acting in bad faith) to make leases; for, if a court should assume to inquire into the necessity of the lease, m. whether a lease of one, two, five or twenty years was longer than necessary to the proper conduct of the post office in a given place, that would be ipso facto to deny the power, and moreover it would seem impossible to find any basis for the decision of such a question. See McCulloch v. Maryland, 4 Wheat. 316, 423; Jacksonville, Pensacola dec. Railroad v. United States, 118 U. S. 626; Garfielde v. United States, 93 U. 8. 246; Ex parte Jackson, 96 U. S. 727, 732; Ware v. United States, supra. Mr. Assistant Attorney General Dodge, (with whom was Mr. Solicitor General on the brief on the motion to dismiss, and Mr. Assistant Attorney General Conrad on the brief on the merits,) said, on the motion to dismiss: 492 OCTOBER TERM, 1894. Argument in Support of Motion to Dismiss. This case, coming to the court as it does by writ of error, presents the opportunity for an authoritative construction of the appellate provisions of the act of March 3,1887, c. 359, 24 Stat. 505, commonly known as the Tucker Act, and for the decision of the question whether the judgments of Circuit and District Courts under that peculiar jurisdiction should be brought up for review by appeal or by writ of error. This question has grown greatly in importance since the interposition of the Circuit Courts of Appeal as reviewing tribunals. Owing to unfamiliarity of many District Attorneys and Federal judges with the Court of Claims practice, and the inaccessibility of reports of the decisions of that court, the methods adopted in bringing up judgments and records for review and the rulings of the courts thereon vary widely and are extremely confusing. In many cases the right of litigants to review such judgments is jeopardized, and, indeed, entirely defeated. In one Circuit Court of Appeals, appeals are dismissed because no bill of exceptions is settled bringing into the record the various objections and exceptions saved in the course of the trial. In others, both attorneys and court apparently deem it essential that the evidence taken on the trial be embodied in the record. In very many the importance and significance of the findings of fact and conclusions of law are wholly lost sight of by reason of misapprehension as to the proper method of review. In others, appeal is held to be proper. United States v. Fletcher, 60 Fed. Rep. 53; United States v. Yukers, 60 Fed. Rep. 641. The existing statutes for the review of judgments of the Court of Claims reached their present form in the Revised Statutes in 1874, in §§ 707, 708, by the latter of which authority was expressly conferred on the Supreme Court to regulate the method of allowing appeals. By virtue of these statutes certain rules prescribed by the Supreme Court have been, incorporated into and have undoubtedly become a part of the law regulating the appeals; among others Rule I, limiting the review to the purely legal question, what judgment properly results from the facts found by the trial court, thereby elimi- CHASE v. UNITED STATES. 493 Argument in Support of Motion to Dismiss. nating many of the questions usually presented on appeals, but more especially eliminating those matters which are presented by writs of error, and require exceptions to be taken in the trial court and bills of exceptions to be settled to bring them into the record, such as error in the admission or rejection of evidence, or in making findings of fact unsupported by evidence or contrary to the undisputed evidence. The single question so to be considered requires no variation in the method of bringing it up, and therefore an appeal only is provided and no writ of error authorized. United States v. Young, 94 U. S. 258, 259. Under this jurisdiction grew up a well-recognized class of cases known as claims against the United States, distinguished from all other litigations by the character of the defendant, and unaffected by the nature of the transactions out of which they sprang or by considerations as to whether they would have been legal or equitable in their character if between individuals. When in 1887, by the Tucker Act, concurrent jurisdiction over this same class of cases was conferred on Circuit and District Courts, no change took place in the distinctiveness of the class; they remained cases of claims against the United States as before. The statute, § 9, gave to the parties “ the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made. . . . The modes of procedure in claiming and perfecting an appeal or writ of error shall conform in all respects as near as may be to the statutes and rules of court governing appeals and writs of error in like causes.” This court has had occasion to pass upon this portion of the statute but once, viz., in United States n. Davis, 131 U. S. 36. That was an appeal from a judgment in an action of legal, as distinguished from equitable, character, rendered by the District Court of the District of Maryland. This court held that the rights of appeal and writ of error reserved by the Tucker Act were the same as formerly existed from the Court of Claims, and that the words in that act “reserved in the statutes of the United States in that behalf made” meant 494 OCTOBER TERM, 1894. Argument in Support of Motion to Dismiss, reserved with reference to judgments in cases of claims against the United States in the Court of Claims. The statute has received further construction at the hands of Mr. Justice Lamar, sitting at circuit in Strong v. United States, 40 Fed. Rep. 183, So. Dist. Alabama. The logic of the Davis case is there slightly amplified, and it is held that the right to the review of judgments in claims cases in Circuit and District Courts is controlled by the statutes regulating reviews of judgments of the Court of Claims ; in other words, sections 707 and 708, Revised Statutes, are held to be, by the section above quoted, embodied in the Tucker Act, and therefore to constitute and limit the full measure of review to which either party is entitled. This principle applied to the present case is conclusive of the motion to dismiss the writ. Writ of error is not and never was authorized to review judgments of the Court of Claims, and therefore is not available to bring up for review judgments of the Circuit and District Courts rendered in their concurrent jurisdiction over claims cases. Another consideration exists in the long and well-established practice of this court under the Tucker Act to take jurisdiction by appeal from judgments which in case of individual litigants would be reviewable only on writ of error. We cite below all the reviews of judgments of Circuit or District Courts in claims cases upon which this court has passed otherwise than to dismiss either on stipulation or on motion of the appellant or plaintiff in error. They are all appeals, and all except three are actions at law as distinguished from suits in equity. So far as we have been able to discover, no case other than the one at bar has been brought to this court by writ of error, except that of Richard S. Tuthill, which was dismissed in April, 1890, on motion of the government, plaintiff in error, for what reason we have been unable to ascertain. United States v. Davis (Maryland), 131 U. S. 36. Motion to dismiss overruled ; United States v. Barber (Mid. Alabama), 140 U. S. 164, affirmed; United States v. Tuthill (Nor. Illinois). Writ of error dismissed April, 1890, on motion of the plaintiffs in error, 136 U. S. 652; United States v. Jones (Oregon), 131 CHASE v. UNITED STATES. 495 Opinion of the Court. U. S. 1, reversed; United States v. Taubenheimer (Oregon), 131 U. S. 1, reversed ; United States v. Montgomery (Oregon), 131 U. S. 1, reversed; United States v. Barber (Mid. Alabama), 140 U. S. 177, reversed; United States v. Poinier (South Carolina), 140 U. S. 160, reversed; United States v. McDermott (Kentucky), 140 U. S. 151, reversed; United States v. Jones (So. Alabama), 147 U. S. 672, reversed; United States v. Fletcher (E. Arkansas), 147 U. S. 664, reversed; United States v. Faulkner (Mid. Tennessee), 145 U. S. 658, reversed on stipulation ; United States v. Van Duzee (Nor. Iowa), 140 U. S. 169, reversed; United States v. Julian (Mid. Tennessee), 145 U. S. 659, reversed on stipulation; United States v. Taylor (E. Tennessee), 147 U. S. 695, reversed ; United States v. Harmon (Maine), 147 U. S. 268, affirmed; United States v. Carter (E. Tennessee), 140 U. S. 702, reversed on stipulation; United States v. Clough (W. Tennessee), 145 U. 8. 658, dismissed on the government’s motion; United States v. Ewing (E. Tennessee), 140 U. 8. 142, reversed; United States n. Hall (N. Ohio), 147 U. S. 691, reversed; United States v. Pitman (Rhode Island), 147 U. S. 669, affirmed ; United States v. Fitch (W. Michigan), 145 U. S. 658, dismissed on government’s motion; United States v. Bashaw (E. Missouri), 152 U. S. 436, reversed. Mr. Justice Harlan, after stating the case, delivered the opinion of the court. The first question to be considered involves the jurisdiction of this court to review the judgment below upon writ of error. The United States contend that a judgment rendered in a suit brought under the act of March 3, 1887, c. 359, entitled 1 An act to provide for the bringing of suits against the government of the United States,” and commonly known as the Tucker Act, cannot be reexamined here except upon appeal. 24 Stat. 505. So much of that act as can have any bearing upon this case is printed in the margin.1 Sec. 1. That the Court of Claims shall have jurisdiction to hear and etermine the following matters: 496 OCTOBER TERM, 1894. Opinion of the Court. The contention of the government as to the jurisdiction of this court is not well founded. Congress did not intend that First. All claims founded upon the Constitution of the United States, or any law of Congress, except for pensions, or upon any regulation of an Executive Department, or upon any contract expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable: Provided, however, That nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as “ war claims,” or to hear and determine other claims, which have heretofore been rejected, or reported on adversely by any court, department, or commission authorized to hear and determine the same. Second. All set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the government in said court: Provided, That no suit against the government of the United States shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made. Sec. 2. That the District Courts of the United States shall have concurrent jurisdiction with the Court of Claims as to all matters named in the preceding section where the amount of the claim does not exceed one thousand dollars, and the Circuit Courts of the United States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars. All causes brought and tried under the provisions of this act shall be tried by the court without a jury. Sec. 3. That whenever any person shall present his petition to the Court of Claims alleging that he is or has been indebted to the United States as an officer or agent thereof, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal representative of any officer, or agent, or contractor so indebted, or that he, or the person for whom he is such surety, guarantor, or personal representative has held any office or agency under the United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States has arisen and exists, and that he or the person he represents has applied to the proper Department of the Government requesting that the account of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed from the date of such application and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by the United States, said court shall, due notice first being given to the head of said Department and to the Attorney CHASE V. UNITED STATES. 497 Opinion of the Court. cases brought under this act in a District or Circuit Court of the United States, should be brought here by appeal only. General of the United States, proceed to hear the parties and to ascertain the amount, if any, due the United States on said account. The Attorney General shall represent the United States at the hearing of said cause. The court may postpone the same from time to time whenever justice shall require. The judgment of said court or of the Supreme Court of the United States, to which an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The payment of such amount so found due by the court shall discharge such obligation. An action shall accrue to the United States against such principal, or surety, or representative to recover the amount so found due, which may be brought at any time within three years after the final judgment of said court. Unless suit shall be brought within said time, such claim and the claim on the original indebtedness shall be forever barred. Sec. 4. That the jurisdiction of the respective courts of the United States proceeding under this act, including the right of exception and appeal, shall be governed by the law now in force, in so far as the same is applicable and not inconsistent with the provisions of this act; and the course of procedure shall be in accordance with the established rules of said respective courts, and of such additions and modifications thereof as said courts may adopt. Sec. 5. That the plaintiff in any suit brought under the provisions of the second section of this act shall file a petition, duly verified with the clerk of the respective court having jurisdiction of the case, and in the district where the plaintiff resides. Such petition shall set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought to be recovered and praying the court for a judgment or decree upon the facts and law. Sec. 6. That the plaintiff shall cause a copy of his petition filed under the preceding section to be served upon the District Attorney of the United States in the district wherein suit is brought, and shall mail a copy of the same, by registered letter, to the Attorney General of the United States, and shall thereupon cause to be filed with the clerk of the court wherein suit is instituted an affidavit of such service and the mailing of such letter. It shall be the duty of the District Attorney upon whom service of petition is made as aforesaid to appear and defend the interests of the Government in the suit, and within sixty days after the service of petition upon him, unless the time should be extended by order of the court made in the case to file a plea, answer, or demurrer on the part of the Government, and to file a notice of any counter-claim, set-off, claim for damages, or other demand or defence whatsoever of the Government in the premises: Provided, That should the District Attorney neglect or refuse to file the plea, answer, demurrer, or defence, as required, the plaintiff may proceed with the case VOL. clv—32 498 OCTOBER TERM, 1894. Opinion of the Court. Throughout all the provisions relating to actions commenced in those courts there is shown a purpose to preserve the disunder such rules as the court may adopt in the premises; but the plaintiff shall not have judgment or decree for his claim, or any part thereof, unless he shall establish the same by proof satisfactory to the court. Sec. 7. That it shall be the duty of the court to cause a written opinion to be filed, in the cause, setting forth the specific findings by the court of the facts therein and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. If the suit be in equity or admiralty, the court shall proceed with the same according to the rules of such courts. Sec. 8. That in the trial of any suit brought under any of the provisions of this act, no person shall be excluded as a witness because he is a party to or interested in said suit; and any plaintiff or party in interest may be examined as a witness on the part of the Government. Section ten hundred and seventy-nine of the Revised Statutes is hereby repealed. The provisions of section ten hundred and eighty of the Revised Statutes shall apply to cases under this act. Sec. 9. That the plaintiff or the United States, in any suit brought under the provisions of this act, shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the conditions and limitations therein contained. The modes of procedure in claiming and perfecting an appeal or writ of error shall conform in all respects, and as near as may be, to the statutes and rules of court governing appeals and writs of error in like causes. Sec. 10. That when the findings of fact and the law applicable thereto have been filed in any case as provided in section six of this act, and the judgment or decree is adverse to the Government, it shall be the duty of the District Attorney to transmit to the Attorney General of the United States certified copies of all the papers filed in the cause, with a transcript of the testimony taken, the written findings of the court, and his written opinion as to the same; whereupon the Attorney General shall determine and direct whether an appeal or writ of error shall be taken or not; and when so directed the District Attorney shall cause an appeal or writ of error to be perfected in accordance with the terms of the statutes and rules of practice governing the same; Provided, That no appeal or writ of error shall be allowed after six months from the judgment or decree in such suit. From the date of such final judgment or decree interest shall be computed thereon, at the rate of four per centum per annum, until the time when an appropriation is made for the payment of the judgment or decree. Sec. 11. That the Attorney General shall report to Congress, and at the beginning of each session of Congress, the suits under this act in which a final judgment or decree has been rendered, giving the date of each, and a statement of the costs taxed in each case. Sec. 16. That all laws and parts of laws inconsistent with this ac^ ar® hereby repealed CHASE V. UNITED STATES. 499 Opinion of the Court. tinction between cases at law, cases in equity, and cases in admiralty. The phrases “ judgment or decree,” “ right of exception or appeal,” “ equity or admiralty,” “ rights of appeal or writs of error,” and “appeal or writ of error,” taken in connection with the clause in the fourth section relating1 to the jurisdiction of the respective courts of the United States proceeding under the act and providing that “ the course of procedure shall be in accordance with the established rules of said respective courts, and of such additions and modifications thereof as said courts may adopt; ” with that part of section seven which in terms refers to the distinction between cases at law and cases in equity and admiralty, and directs that “ if the suit be in equity or admiralty the court shall proceed with the same according to the rules of such courts; ” with the express recognition in section nine, of the “ same rights of appeal or writs of error” in any suit brought under this act as were reserved in the statutes of the United States in that behalf at the date of the passage of the act; with the requirement, in the same section, that “ the modes of procedure in claiming and perfecting an appeal or writ of error shall conform in all respects, and as near as may be, to the statutes and rules of court governing appeals and writs of error in like causes; ” and with the provision in section ten, making it the duty of the District Attorney, when the Attorney General shall determine “ whether an appeal or writ of error shall be taken or not ” in cases in which “ the judgment or decree ” shall be adverse to the government, to cause “ an appeal or writ of error to be perfected in accordance with the terms of the statutes and rules of practice governing the same; ” these phrases, clauses, and provisions make it, we think, reasonably clear that Congress intended that the final determination of suits brought under this act in a District or Circuit Court of the United States shall be reviewed here upon writ of error, • if the case be one at law, and upon appeal, if the case is one cognizable in equity or in admiralty under the existing statutes regulating the jurisdiction of those courts. But Congress, while recognizing the settled distinction between law, equity, and admiralty, did not intend that the 500 OCTOBER TERM, 1894. Opinion of the Court. records of cases brought against the government under this act should contain all that is required in suits instituted in the courts of the United States under the general statutes regulating their jurisdiction and the modes of procedure therein. Neither the mode of procedure in the Court of Claims, nor the mode in which cases there determined may be brought here for reexamination, were changed by the act of March 3, 1887. But under that act, a judgment of a District or Circuit Court of the United States in an action at law brought against the government, will be reexamined here only when the record contains a specific finding of facts with the conclusions of law thereon. In such cases, this court will only inquire whether the judgment below is supported by the facts thus found. And, we think, it was also the purpose of Congress to require like specific findings or statements of fact and conclusions of law in cases in equity and in admiralty brought under that act in the District and Circuit Courts of the United States, and to restrict our inquiry in such cases, as in actions at law, to the sufficiency of the facts so found or stated to support the final judgment. For the reasons stated the motion to dismiss the writ of error for want of jurisdiction in this court to review, in that mode, the final judgment of the court below is overruled. Was the United States liable upon the written contract of lease which is the foundation of this action ? By the law in force when the lease sued on was executed, it was made the duty of the Postmaster General “ to establish post offices.” By section 3732 of the Revised Statutes it is provided, as did, substantially, the statutes in force when the lease was made, that “ no contract or purchase on behalf of the United States shall be made unless the same is authorized by law, or is under an appropriation adequate to its fulfilment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities ot the current year. Act of March 3, 1825, c. 64, §1,4 Stat. 102; Act of March 2, 1861, c. 84, § 10, 12 Stat. 220. Much stress is placed by counsel for the plaintiff upon the CHASE V. UNITED STATES. 501 Opinion of the Court. clause making it the duty of the Postmaster General to establish post offices; the contention being that the power to establish a post office carries with it authority to lease rooms or a building in which the postmaster may conduct the. business of his office. In support of this position Ware v. United States, 4 Wall. 617, is cited. But that case does not justify any such interpretation of the act of Congress. The question there was as to the power of the Postmaster General to discontinue a post office that had once been established by him under the authority conferred by the act of 1825, 4 Stat. 102, “to establish post offices.” This court, observing that the power to discontinue post offices is incident to the power to establish them, unless there was some provision in the acts of Congress restraining its exercise, said: “Undoubtedly, Congress might discontinue a post office which they had previously established by law, and it is difficult to see why the Postmaster General may not do the same thing when acting under an act of Congress, expressed in the very words of the Constitution from which Congress derives its power.” Again: “Power to establish post offices and post roads is conferred upon Congress, but the policy of the government from the time the general post office was established has been to delegate the power to designate the places where the mail shall be received and delivered to the Postmaster General.” p. 632. There was no issue in that case as to the extent of the authority of the Postmaster General to bind the government by contract for the payment of money or for the lease of a building for a post office. That case did not call for any consideration of the general question, whether the words in the statute, “to establish post offices,” had the full meaning of the same words found in the section of the Constitution enumerating the powers of Congress. Nor is it necessary to determine all that may be done by the Postmaster General under the power “ to establish post offices ” conferred upon that officer; for those words are to be interpreted in connection with the above statutory provision forbidding the making, except in the War and Navy Departments, and in those departments only for certain 502 OCTOBER TERM, 1894. Opinion of the Court. things and under specified conditions, of any contract or purchase on behalf of the United States unless the same be authorized by law, or is under an appropriation adequate to its fulfilment. There is no claim that the lease in question was made under any appropriation whatever, much less one adequate to its fulfilment. So that the only inquiry is, whether the contract of lease was “ authorized by law ” within the meaning of the statute relating to contracts or purchases on behalf of the government. The counsel of the plaintiff contends that a contract of lease on behalf of the United States is authorized by law if made by the Postmaster General for the purpose of procuring rooms or a building for a post office established by him. The same argument would sustain a purchase by the Postmaster General, on behalf of the United States, of a building to be used for a post office so established by that officer. We cannot give our sanction to this interpretation of the statute. It would give the Postmaster General much larger powers than we believe Congress intended to give him. While the Postmaster General, under the. power to establish post offices, may designate the places, that is, the localities, at which the mails are to be received, he cannot bind the United States by any lease or purchase of a building to be used for the purposes of a post office, unless the power to do so is derived from a statute which either expressly or by necessary implication authorizes him to make such lease or purchase. The general authority “ to establish post offices ” does not itself, or without more, necessarily imply authority to bind the United States by a contract to lease or purchase a post-office building, although an appropriation of money to pay for the rent of a post-office building at a named place might give authority to the Postmaster General to lease such building in that locality as he deemed proper for the service, always keeping within the amount so appropriated. So also the power to lease a building to be used as a post office may be implied from a general appropriation of money to pay for rent of post offices in any particular fiscal year or years. We have considered the case in the light of the statutes in LINFORD v. ELLISON. 503 Statement of the Case. force when the lease of May 1, 1870, was executed. Shortly after that date, by the act of July 12,1870, c. 251, § 7, 16 Stat. 251, it was provided that no department of the government should expend, in any one year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the government in any contract for the future payment of money in excess of such appropriations. And that provision is reproduced in section 3679 of the Revised Statutes. We are of opinion that the lease sued on was not authorized by law, and, consequently, no action can be maintained thereon. The judgment is Affirmed. LINFORD -y. ELLISON. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 90. Submitted November 22,1894. — Decided December 17,1894. A judgment of the Supreme Court of the Territory of Utah against the tax collector of a municipal corporation for fifty dollars, the value of property levied on by him for unpaid municipal taxes, rendered on the ground that a municipal corporation, which is a small village but has extensive limits, cannot tax farming lands for municipal purposes lying within the corporate limits but outside of the platted portion of the city and so far removed from the settled portion thereof that the owner would receive no benefits from the municipal government, does not draw in question the validity of the organic law of the Territory or the scope of the authority to legislate conferred upon the territorial legislature by Congress; and as the matter in dispute, exclusive of costs, does not exceed the sum of five thousand dollars, nor involve the validity of a patent, or copyright, or of a treaty, this court is without jurisdiction to review it. This was an action brought by Ephraim P. Ellison in the District Court of the Third Judicial District of the Territory of Utah against James H. Linford, Jr., to recover damages for the conversion of a wagon belonging to plaintiff, which had been levied on by defendant, as tax collector of the city of Kaysville, for unpaid municipal taxes. A jury was waived, and the cause submitted to the court for trial upon an agreed statement of facts. The court held the taxes invalid, and gave judgment in favor of plaintiff for $50 and costs. Defendant prosecuted an appeal to the Supreme Court of the Terri- 504 OCTOBER TERM, 1894. Statement of the Case. tory, which affirmed the judgment, and defendant appealed to this court. The Supreme Court of the Territory filed the following findings of fact: “ First. That the defendant, James H. Linford, Jr., was the legal and acting collector of taxes for the city of Kaysville at the time of the transaction out of which this action arose. “ Second. That the city of Kaysville was a duly and legally organized municipal corporation under the laws of the Territory of Utah, and in pursuance of ordinances duly passed assessed and levied a regular municipal tax for city purposes upon all the premises and property within its corporate limits. “ That, the tax levied upon the property of plaintiff not being paid and having become delinquent, the defendant, in pursuance of authority conferred by the ordinances of the city, levied upon a wagon belonging to the plaintiff of the value of fifty dollars and sold it to satisfy said taxes. “ Third. That the map or plat of the city of Kaysville, which was a part of the record and marked ‘ Exhibit 1,’ correctly shows the boundaries of the city and the location of the several tracts of plaintiff’s land and of his store with reference to the platted and settled portion of the said city, and that the portion of the city which is platted into lots and blocks and marked ‘city lots,’ as shown on said map, correctly shows the thickly settled portions of said city and the only part thereof which is laid off into blocks and lots with streets and alleys. “ Fourth. That plaintiff owns the three tracts of land where his name appears on the map, and that they are agricultural lands, used for farming purposes only, and on which he resides, and that he also owns a store at the point indicated by the letters 1 F. U.’ and ‘ E. P. E.’ at a little place called Layton; that one of said tracts of land is situated a little over half a mile from the nearest part of the platted portion of the city. The second tract is situated about one mile and the third tract about two miles from the platted portion of the city while the store is situated about two miles away, at a little place called Layton, on a county road leading to the city proper, and also on the line of the Utah Central Railroad. “Fifth. That the city of Kaysville was incorporated by LINFORD v. ELLISON. 505 Opinion of the Court. an act of the legislative assembly of Utah Territory passed March 15th, 1868, and contains about six hundred inhabitants in the platted portion thereof, and that it contains within its corporate limits more than twenty-three square miles. “Sixth. It is not shown that the platted and settled portion of the city or what may be termed the city proper is likely to be extended in the direction of plaintiff’s premises, nor that any streets, driveways, or other improvements in that direction are contemplated or are likely to be made, nor that the plaintiff will receive any benefit from the expenditures of the taxes for city purposes.” The cause was submitted on the merits and on a motion to dismiss. Mr. Jdbez G. Sutherland and Mr. Arthur Brown for the motion to dismiss. Mr. J. L. Bawlins opposing. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. By the sixth section of the act establishing a territorial government for Utah, it was enacted “that the legislative power of said Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws passed by the legislative assembly and governor shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect.” Act of September 9,1850, c. 51, 9 Stat. 453. . The seventh section of the charter of Kaysville provided; me city council shall have authority to levy and collect taxes, for city purposes, upon all taxable property real and 506 OCTOBER TERM, 1894. Opinion of the Court. personal, within the limits of the city, not exceeding one-half of one per cent per annum upon- the assessed value thereof; and may enforce the payment of the same to be provided for by ordinance, not repugnant to the Constitution of the United States or to the laws of this Territory.” 1 Comp. Laws Utah, 1888, 427, 429. In People v. Daniels, 6 Utah, 288, 292, 296, the Supreme Court had under consideration certain taxes imposed upon Daniels by a municipal corporation named Moroni City, the seventh section of whose charter was identical with that of Kaysville, and. the question in respect to the legality of the taxation the same as in the case at bar. The Supreme Court of Utah held that the taxation in question could not be sustained, and, among other things, said: “ In the organic act Congress, under restrictions, express or implied, confers upon the territorial legislature authority to legislate with respect to such subjects as concern the people of the Territory. When the authority with respect to the subject is specific, and its extent is clearly defined, the discretion of the legislature within constitutional limitations cannot be questioned; the denial of such discretion would be a denial of the power of Congress; but when the power is given in general terms, and the extent to which it may be exercised upon the subject is not expressly limited and clearly defined in the organic act, then the territorial legislature must exercise its discretion. So far as that discretion is expressly limited by the Constitution or the organic act such limitation must be observed; but when it is not, the legislature must follow the dictates of reason and justice. The law must be reasonable and just, because the court will not presume that Congress intended to authorize the legislature to make an unjust, an unreasonable, an unequal, or an oppressive law. The subjects to which the power of the territorial legislature extends are not specifically described, and their number is limited by the word ‘ rightful.’ A law upon a subject not of that number would be held void. In that case the court would determine that the subject was not within the power of the legislature; and as to the extent to which the legislature may act on a rightful subject, when the LINFORD v. ELLISON. 507 Opinion of the Court. limit is not expressly fixed, the court must ascertain the limit and determine whether the law is within it. . . . Municipal charters, boundaries of cities and villages, and municipal taxation, are rightful subjects of legislation, but the extent of the legislative discretion writh respect to those subjects is not expressly limited ; there must be a reasonable limit, however, to that discretion.” The court applied to the provisions of the organic act in question, conferring power on the legislature, the rule of construction applicable to similar provisions in municipal charters, as laid down in Dillon on Municipal Corporations, (4th ed., § 328,) namely, that what the legislature distinctly says may be done cannot be set aside by the courts because they may deem it to be unreasonable or against sound policy, but where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then an ordinance passed in pursuance thereof must be a reasonable exercise of the power or it will be pronounced invalid. And upon principle and authority the court was of opinion: “First, that municipal taxation should be limited to the range of municipal benefits; second, that lands and their occupants without the range of municipal benefits should not be taxed to aid those within; third, that a law authorizing the assessment of taxes for municipal purposes upon lands or their occupants located beyond the range of municipal benefits is not a rightful subject of legislation; fourth, that taxation for city purposes should be within the bounds indicated by its buildings, or its streets and alleys, or other public improvements, and contiguous or adjacent districts so situated as to authorize a reasonable expectation that they will be benefited by the improvements of the city or protected by its police; that no outside districts should be included when it is apparent and palpable that the benefits of the city to it will only be such as will be received by other districts not included, such as will be common to all neighboring communities.” In the case at bar, (7 Utah, 166,) the Supreme Court declared that it had no reason to doubt the correctness of the former decision, and affirmed the judgment of the District 508 OCTOBER TERM, 1894. Opinion of the Court. Court. And, in accordance with the view that such taxation was not within the power granted, it was ruled that “ a municipal corporation, which is a small village, but having extensive limits, cannot tax farming lands for municipal purposes, lying within the corporate limits but outside of the platted portion of the city, and so far removed from the settled portion of the city that the owner will receive no benefits from the municipal government.” It is thus seen that the decision of the Supreme Court of the territory involved the construction of the organic law and the scope of the authority to legislate conferred upon the Territorial legislature; but that the validity of that authority and of the statute was not drawn in question. In order to give us jurisdiction of this appeal, the matter in dispute exclusive of costs must have exceeded the sum of $5000, or else, without regard to the sum or value in dispute, the validity of a patent or copyright must have been involved, or the validity of a treaty or statute of or an authority exercised under the United States have been drawn in question. Act of March 3, 1885, c. 355, 23 Stat. 443. Confessedly, the matter in dispute here did not reach the requisite pecuniary value, and the validity of no patent or copyright was involved, nor was the validity of a treaty questioned ; and, as just stated, we are of opinion that the validity of no statute of the United States, nor of an authority exercised under the United States, was drawn in question within the intent and meaning of the jurisdictional act. As was observed in Lynch v. United States, 137 U. S. 280, 285: “ The validity of a statute is not drawn in question every time rights claimed under such statute are controverted, nor is the validity of an authority, every time an act done by such authority is disputed. The validity of a statute or the validity of an authority is drawn in question when the existence, or constitutionality, or legality of such statute or authority is denied, and the denial forms the subject of direct inquiry.” In Baltimore <& Potomac Railroad v. Ilopkvxs, 130 U. S. 210, 226, the question in controversy was whether a railroad corporation, authorized by acts of Congress to LINFORD v. ELLISON. 509 Dissenting Opinion: Harlan, J. establish freight stations, and to lay as many tracks as “ its president and board of directors might deem necessary” in the District of Columbia, had the right to occupy a public street for the purposes of a freight yard. It was argued that the validity of an authority, exercised under the United States, to so occupy the public streets, was drawn in question ; but this court held otherwise, and said : “ The validity of the statutes and the validity of authority exercised under them, are, in this instance, one and the same thing; and the ‘validity of a statute,’ as these words are used in this act of Congress, refers to the power of Congress to pass the particular statute at all, and not to mere judicial construction as contradistinguished from a denial of the legislative power.” And see South Carolina v. Seymour, 153 U. S. 353, where the cases are marshalled and applied. The result is that the motion to dismiss must be sustained. Appeal dismissed. Mr. Justice Harlan dissenting. I am of the opinion that this court has jurisdiction to review the judgment below, and, consequently, that the writ of error should not be dismissed. We have jurisdiction to review the judgment or decree of the Supreme Court of a Territory, without regard to the sum or value in dispute in any case in which is drawn in question the validity of ... an authority exercised under the United States.” Act of March 3, 1885, c. 355, 23 Stat. 443. The city of Kaysville, Utah, was incorporated and its territorial limits were defined by an act of the territorial legislature passed February 13, 1868, c. 9, Laws of Utah, 1868, 8; 1 Compiled Laws of Utah, 1888, 427. That act provided that the city council “ shall have authority to levy and collect taxes, for city purposes, upon all taxable property, real and personal, within the limits of the city.” §. 7. Within those limits were the plaintiff’s lands, part of a large body of what are alleged to be merely “ agricultural lands,” outside of the platted part of the city, and upon which, it was contended, taxes for city purposes could not be legally imposed. 510 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. Certain taxes were levied on the plaintiff’s lands by the municipal corporation of Kaysville. The issue in the court of original jurisdiction was as to the liability of those lands for taxes assessed by that corporation under the authority given by the territorial statute. That court found, as conclusions of law, that “ the organization of the city of Kaysville, including large quantities of agricultural lands which, at the time of its organization, could not be benefited by municipal government, was, at the time thereof, illegal and void, and that it now is illegal and void, as to the lands which, cannot by any possibility be benefited by municipal government;” that “to impose tax upon such lands is contrary to that part of the Constitution which provides that private property shall not be taken for public purposes without just compensation;” and that the lands of the plaintiff “being agricultural lands, to tax him would be to take his property without just compensation.” The District Court, therefore, held that the city of Kaysville “ had no authority to tax the lands and property of Mr. Ellison for municipal purposes.” It thus appears that the validity of the authority given by the territorial legislature, acting under the United States, to tax agricultural lands like those belonging to the plaintiff, was directly drawn in question and was passed upon by the court of original jurisdiction. In the Supreme Court of the Territory the judgment was affirmed. It is true that the findings of fact in that court differed in some respects not vital in the present inquiry from those made in the inferior territorial court, but they disclosed the real issue between the parties, and the judgment of the Supreme Court proceeded distinctly upon the ground that a tax upon agricultural lands for city purposes was invalid and void. This appears from the following extract from the opinion of that court: “ The questions involved in this case were fully considered and elaborated by this court in the case of People v. Daniels, 6 Utah, 288; S.C- 22 Pac. Rep. 159. The case involved the validity of a tax on agricultural lands for city purposes, and the tax was declared void. In that case Zane, Ch. J., in delivering the opinion of the court, said that LINFORD v. ELLISON. 511 Dissenting Opinion: Harlan, J. ‘taxation for city purposes should be within the bounds indicated by its buildings or streets or alleys or other public improvements, and contiguous or adjacent districts so situated as to authorize a reasonable expectation that they will be benefited by the improvements of the city or protected by its police; that no outside districts should be included when it is apparent and palpable that the benefits of the city to it will be only such as will be received by other districts not included — such as will be common to all neighboring communities.’ We see no reason to doubt the correctness of that decision, and as it is decisive of the point involved in this case the judgment of the District Court is affirmed.” That the Supreme Court of the Territory passed upon the validity of the territorial statute so far as it authorizes the taxation of agricultural lands for city purposes is made still clearer by an examination of the opinion in People n. Daniels^ the decision in which was followed in the present case. In that case it was adjudged that the taxation of agricultural lands for city purposes was forbidden by the Fifth Amendment of the Constitution which prohibited the taking of private property for public use without just compensation. The court said: “ Inasmuch as it appears from the record in the case that the defendant resides and that his lands are situated outside of Moroni City, as indicated by public or private improvements, and beyond such contiguous or adjacent district as will be benefited by its municipal expenditure, the court holds that the territorial legislature had no power to subject his property to the burden of taxation for the corporate purposes of the city. The judgment of the court below is reversed, and the cause is remanded.” The present case then is this: The legislature of the Territory, exercising whatever authority it has “ under the United States,” passed a statute which embraced certain agricultural lands within the limits of Kaysville, and assumed to authorize that municipal corporation to tax them for city purposes. The action of the corporation and its officers is based upon the territorial statute and is justified, if to be justified at all, only by its provisions. Plainly, therefore, there was “ drawn in ques- 512 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. tion ” the authority of the territorial legislature, acting “ under the United States,” to confer upon a particular municipal corporation the power to tax the lands in question for purely city purposes. No question was presented as to the mere construction of the statute. It is not disputed that the plaintiff’s lands are within the limits of Kaysville as defined by the act of the territorial legislature. It is conceded that the seizure of the plaintiff’s wagon for the taxes on his lands was legal, if the statute of the Territory was constitutional so far as it authorized taxes to be imposed on such lands within the defined limits of Kaysville as were agricultural lands, namely, lands outside of the platted part of the city, which did not receive the benefits of the city government. I submit that there is no disputed question in the case, except that which involves the constitutional power of the territorial legislature, acting under the United States, to authorize the imposition of taxes for city purposes on lands situated as are those of the plaintiff. The facts were agreed and it is apparent that the parties intended to raise no question except as to the validity of the authority exercised by the territorial legislature in empowering the city of Kaysville to tax the lands here in question. These views expressed by me are not at all in conflict with the decision in Baltimore da Potomac Bailroad v. Hopkins, 130 U. S. 210, 226. The validity of the act of Congress referred to in that case was not drawn in question. The issue there was as to whether certain things were within or were authorized by the provisions of that act. The dispute was as to the construction, not the validity, of the act of Congress. I cannot suppose that the Hopkins case would have been determined as it was, if it had appeared that the authority of Congress to pass the act referred to was drawn in question. Here there is drawn in question the validity of a statute of the territorial legislature, acting under the United States, which permitted the taxation of certain kinds of lands for city purposes. It seems to me that if a case in a territorial court turns upon the validity of an act which is authorized by a statute of the territorial legislature deriving its existence and powers from the United States, and if that statute is itself drawn in ques- STATE OF INDIANA v. GLOVER. 513 Statement of the Case. tion as being repugnant to the Constitution of the United States, then we have a case in which is “ drawn in question the validity of ... an authority exercised under the United States.” INDIANA ex rel. STANTON v. GLOVER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 57. Argued and submitted November 6,1894. — Decided January 7,1895. A Circuit Court has jurisdiction of a suit brought in the name of the State in which the circuit is situated, on the relation of a citizen of another State, to enforce the obligations of a bond given by citizens of the State in which the suit is brought for the faithful performance of his duties by a municipal officer of that State. A certificate, made and payable in a State out of a particular fund, and purporting to be the obligation of a municipal corporation existing under public laws and endowed with restricted powers, granted only for special and local purposes of a non-commercial character, is not governed by the law merchant, and is open in the hands of subsequent holders to the same defences as existed against the original payee. The sureties on the bond of the trustee of a municipal township in Indiana are not subjected by the Revised Statutes of that State, §§ 6006, 6007, to liability for the payment of warrants or certificates which, apart from those sections, it was not within the authority of the trustee to execute, or which were fraudulent in themselves. A township trustee in Indiana cannot contract a debt for school supplies unless supplies suitable and reasonably necessary for the township have been actually delivered to and accepted by it. This was an action brought in the name of the State of Indiana on the relation of Walter Stanton, trustee, a citizen of New York, against Arista Glover and four other defendants, citizens of Indiana, on the official bond of said Glover as trustee of Mill Creek township, in the county of Fountain, State of Indiana, the other defendants being sureties on said bond. The complaint was demurred to on the grounds that it did not state facts sufficient to constitute a cause of action and that the court had no jurisdiction of the subject- VOL. CLV—33 514 OCTOBER TERM, 1894. Statement of the Case. matter. The demurrer was sustained, and judgment rendered in favor of defendants, and plaintiff sued out a writ of error. The complaint averred that Glover was elected trustee of the township, April 7, 1884; qualified April 19, and entered upon the discharge of his duties as such, and so continued until some time in the month of August or September, 1885, when he abandoned his office and fled the country; that on April 19, 1884, he executed his bond as such trustee with his codefendants as sureties thereon, a copy of which bond is made part of the complaint, and the first condition expressed therein is that “ the said Arista Glover shall well and faithfully discharge the duties of said office according to law.” The complaint stated facts showing that, under the provisions of law in that behalf, the township trustee had no right to incur any further debt on behalf of his township without first procuring an order from the board of county commissioners allowing him to contract therefor; and averred that in violation of the duties of his office and of the terms of his bond, said Glover executed and delivered to R. B. Pollard certain promissory notes, seven in number, aggregating $5375.76, all of the same form, filed as exhibits and made part of the complaint, and one of which is as follows: “ $772.50. State of Indiana, County of Fountain, “ Trustee’s Office. “ Mill Creek School Township, May VMh, 1885. “ This is to certify that there is now due from this township to R. B. Pollard or order seven hundred & seventy-two & yo°o dollars for school supplies bought for and received by this township and payable out of the special school funds, for which taxes are now levied, at the Citizens’ Bank, at Attica, Indiana, on the 20th day of January, 1887, with interest at 8 per cent per annum on the amount from date till paid, and attorneys’ fees. Arista Glover, “School Trustee of Mill Creek Township” It was further alleged that Glover, “ as such trustee, did not at or prior to the execution of said promissory notes or either STATE OF INDIANA v. GLOVER. 515 Statement of the Case. or any of them, nor at any other time, obtain any order from the board of commissioners of said Fountain County authorizing him to contract any indebtedness for or in the name of said Mill Creek school township, but the execution and delivery of said notes and each and every of them was executed and issued in express violation of the provisions of sections one and two of the act of the general assembly of the State of Indiana, entitled ‘ An act to limit the powers of township trustees in incurring debts and requiring them to designate certain days for transacting township business,’ approved March 11, 1875, the same being sections numbered 6006 and 6007 of the Revised Statutes of the State of Indiana.” The complaint then averred the transfer by Pollard of the notes in blank for value received to certain banks and a trust company, citizens of Rhode Island, and their transfer and delivery to the plaintiff; that subsequent to the endorsements and prior to the institution of the suit, Pollard abandoned his residence and citizenship in the United States and fled beyond the seas; and that plaintiff was unable to state whether Pollard had acquired a citizenship in a foreign country, or of what country; but plaintiff averred that he is not now and was not at the commencement of this action either a resident or citizen of the State of Indiana. In the second paragraph or count of the complaint, plaintiff averred that Glover “ did, in violation of the duties of his office and of the terms and conditions of his bond aforesaid, purchase and obtain from one R. B. Pollard a large amount of goods for the use of the schools of said Mill Creek township, and in payment therefor did execute and deliver to said R. B. Pollard ” the notes (describing them); and that said Glover, “ as such trustee, did not at or prior to the purchase of said goods or the execution and delivery of said promissory notes or either or any of them, nor at any other time, obtain any order from the board of commissioners of said Fountain County authorizing him to contract any indebtedness for or in the name of said Mill Creek school township, but the purchasing of said goods and the execution and delivery of said notes and each and every of them was made in express violation of the pro- 516 OCTOBER TERM, 1894. Counsel for Plaintiff in Error. visions ” of sections 6006 and 6007. Both paragraphs of the complaint were otherwise the same, and the breach alleged was the execution of the notes or certificates in question. Section 6006 of the Revised Statutes of 1881 is : “Whenever it becomes necessary for the trustee of any township in this State to incur on behalf of his township, any debt or debts whose aggregate amount shall be in excess of the fund on hand to which such debt or debts are chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred, such trustee shall first procure an order from the board of county commissioners of the county in which such township is situated, authorizing him to contract such indebtedness.” Section 6007 provided for the manner in which such order of the board of county commissioners should be obtained by the trustee. On March 5, 1883, an act of the legislature of Indiana was approved, entitled “An act touching the duties of township trustees with reference to liquidating and contracting indebtedness of townships in certain cases.” The second section of this act reads as follows : “ And it is further provided that any township trustee, in any county of the State of Indiana, who shall contract any debt in the name or in behalf of any civil or school township of which he may be the trustee, contrary to the provisions of sections one and two of i An act to limit the powers of township trustees in incurring debts, and requiring him to designate certain days for transacting township business,’ approved March 11, 1875, (the same being numbered six thousand and six and six thousand and seven of the Revised Statutes of the State of Indiana,) shall be personally liable, and liable on his official bond, to the holder of any contract or other evidence of such indebtedness, for the amount thereof.” Stats. Ind. 1883, c. 95, p. 114. This act was repealed March 9, 1889, Stats. Ind. 1889, c. 138, p. 278, but was in force at the date of the bond sued on and at the date of the alleged breach thereof. 3/r. J. M. Wilson, Mr. Solomon Claypool, and Mr. William Ketcham for plaintiff in error, submitted on their brief. STATE OF INDIANA v. GLOVER. 517 Opinion of the Court. Jfr. Charles B. Stuart, Mr. Daniel IF. Simms and Mr. Lucas Nebeker for defendant in error Rinn, submitted on their brief. Mr. L. T. Michener (with whom was Mr. W. W. Dudley on the brief,) for defendants in error. Mr. Chief Justice Fuller delivered the opinion of the court. The case must be treated, so far as the jurisdiction of the Circuit Court is concerned, as though Stanton was alone named as plaintiff. Maryland v. Baldwin, 112 IT. S. 490. If the suit could be regarded as founded on the certificates attached to the complaint, there would be a want of jurisdiction, as it does not appear that Pollard could have prosecuted the suit in the Circuit Court, Rev. Stat. § 629; Act of March 3,1875, c. 137, 18 Stat. 470; Act of March 3, 1887, c. 373, 24 Stat. 552, 553; but as the suit is upon the bond, and Stanton and his cestuis que trust were citizens of other States than Indiana, we think the jurisdiction may be maintained. But although the suit is upon the bond, the liability asserted under section two of the act of 1883 is to the holder of the certificates “ for the amount thereof,” and the breach alleged is the execution of the certificates. Such a liability might be transferable to successive holders of the warrant or certificate, but it would seem quite clear that if the liability did not exist in favor of the payee, subsequent holders would stand in no better position. Certificates, like those exhibited in the case at bar, made and payable in Indiana, out of a particular fund, and purporting to be the obligations of a corporation existing under public laws and endowed only with restricted powers granted for special and purely local purposes of a non-commercial character, are not governed by the law merchant, and are open in the hands of subsequent holders to the same defences as existed against the original payee. Stanton v. Shipley, 27 Fed. Rep. 498; State 518 OCTOBER TERM, 1894. Opinion of the Court. ex ret. Cohen v. Hawes, 112 Indiana, 323; Merrill v. Monticello, 138 U. S. 673. The contention is that where an order of the county commissioners is requisite, under sections 6006 and 6007 of the Revised Statutes of Indiana, to empower a township trustee to contract indebtedness, and has not been obtained, the mere fact of the issue of a warrant or certificate by the trustee, in form the warrant or certificate of the township, authorizes the recovery of the amount thereof of the trustee and his sureties by suit on the official bond. We cannot concur in that view. The section in question provides that when the trustee contracts a debt in the name or in behalf of the township, without the proper order of the county commissioners, if required, liability on the official bond is incurred to the holder of the contract or other evidence of such indebtedness. The indebtedness thus referred to is manifestly an indebtedness contracted within the line of official duty and authority for something furnished to or obtained for the township, although in disregard of the provisions of sections 6006 and 6007. The sureties were not subjected to liability by the statute for the payment of warrants or certificates which, apart from those sections, it was not within the authority of the trustee to execute, or which were fraudulent in themselves, but only when persons had in good faith parted with money or property to the township on the strength of the official character of the transaction. Such we understand to be the construction put upon the act by the highest judicial tribunal of Indiana. That court in Jeffersonville School Township v. Litton, 116 Indiana, 467, 475, pointed out that by the first section of the act provision was made for the protection of creditors without actual knowledge of the facts where a township trustee had theretofore undertaken to incur debts without an order of the county commissioners, when such an order was requisite; and that by the second section it was attempted to check further extravagance, and at the same time to save innocent creditors. But a writing purporting to be evidence of such indebtedness could not create it. And, in respect of school supplies, the Supreme Court of Indiana has de- STATE OF INDIANA v. GLOVER. 519 Opinion of the Court. cided “ again and again, that a township trustee has no power, by any form of obligation, to bind the corporation of which he is the agent or trustee by contract for school supplies, unless supplies suitable and reasonably necessary have been actually delivered to and received by the township.” Boyd v. Mill Creek School Township, 114 Indiana, 210. In State v. Hawes, 112 Indiana, 323, the action was brought on the official bond of a trustee to recover for a certificate made to Pollard, purporting to be for school supplies bought and received by the township, it being averred that the same was executed in violation of sections 6006 and 6007. The certificate was in fact issued without any actual consideration, and the Supreme Court said: “ The liability imposed by the act of 1883 requires, as a condition precedent, that the township trustee must have contracted a debt, in the name or in behalf of his township, either civil or school, and the debt must have been contracted in violation of the provisions of sections 6006 and 6007. If, therefore, the transaction in which the certificate had its inception was such as to create no debt, or if the debt created was not within the prohibition of the above-mentioned sections, manifestly the statutory liability has not been incurred by any one. . . . The mere delivery of a piece of paper which imports an obligation to pay money, but which is in. fact no evidence of an actual existing debt, does not constitute the contracting of a debt. It cannot be supposed that it was the purpose of the statute to enable a holder of a contract, or other evidence of indebtedness, issued by a township trustee in the name or in behalf of his township, to hold the trustee personally liable, and liable on his official bond, whether an indebtedness had been in fact contracted or not. A recovery in any case is limited by the statute to the amount of the indebtedness, and not by the amount stipulated in the contract. Hence, given a case in which there is no indebtedness, that is, no one who occupies the situation of a creditor, and there can be no recovery under the statute. Stanton v. Shipley, 27 Fed. Rep. 498. A township trustee cannot contract a debt for school supplies unless supplies suitable and reasonably necessary for the township have been 520 OCTOBER TERM, 1894. Opinion of the Court. actually delivered to, and accepted by, the township. Bloomington School Township v. National School Furnishing Co., 107 Indiana, 43; Reeve School Township v. Dodson, 98 Indiana, 497; Wallis v. Johnson School Township, 75 Indiana, 368. “ Where, therefore, as is the case here, paper purporting to be the obligation of a township has been issued without any consideration whatever, nothing having been given or received therefor, the holder of such paper, whether he be the payee named therein or an assignee, has no right of action under the act of 1883, because the trustee has not, in any legal or equitable sense, contracted a debt. Such paper creates no obligation against any one; it is void. Axt v. Jackson School Township, 90 Indiana, 101. Since township trustees can issue obligations, binding on the township, only in case a debt has been contracted, and since, in any event, paper issued as evidence of an actual indebtedness already incurred by a municipal corporation, which possesses only limited powers, conferred for special and local purposes of a purely non-commer-cial character, is not negotiable according to the law merchant, a subsequent holder of paper issued by a township trustee, can occupy no better ground than that occupied by the person to whom it was issued. . . .• The certificate having been issued in the name and in behalf of the township without power or authority, and not as evidence of any debt contracted by the trustee, it was absolutely void in the hands of the original payee, both as respects the trustee personally and the township, and, being for that reason void in his hands, it was equally invalid in the hands of any subsequent holder.” In State ex ret. Cunningham v. Helms, 35 N. E. Rep. (Indiana,) 893, the action was against Helms and others, sureties on his bond, as trustee of Sugar Creek township, to enforce the liability on such bond, and the complaint averred that Helms, being the trustee of the township, was engaged in erecting a school house suitable for the educational purposes of the township and necessary therefor, and that to complete the build ing it became necessary for him to borrow money and incur an indebtedness on the part of his township ; that in order to obtain money in that behalf, he, as such trustee, and in the STATE OE INDIANA v. GLOVER. 521 Opinion of the Court. name and in the behalf of the township executed a promissory note to the relator, exhibited with the complaint; that thereupon the trustee received the sum represented by the note in money for the purposes aforesaid, and that the loan was made and the fund was received by the trustee for those purposes, but that the trustee, without the knowledge of the plaintiff, appropriated the fund to his own use; that the facts existed bringing the case within sections 6006 and 6007, but the trustee did not at any time procure an order from the board of commissioners of said county, in which the township was situated, authorizing him to contract such indebtedness; and that plaintiff loaned the money to the township in good faith and without any knowledge of the fact that there were no funds in hand or a sufficient amount of funds arising from the current levy to pay the debt so made. The Supreme Court of Indiana held that the note, which was signed “ trustee of Sugar Creek Township, Indiana,” was, under the circumstances, the note of the township and not of the trustee individually; that a municipal or quasi corporation can make in a proper case a promissory note, and thereby bind itself for any debt contracted in the course of its legitimate business, for any expenses incurred in any matter or thing which it is authorized to do, or any matter which is not foreign to the purposes of its creation; that where money is loaned to a township trustee for building a suitable school house, the trustee not then having the funds on hand to complete the same, and the money is applied to such purpose, the school township represented by such trustee and receiving the benefit of such money is liable therefor; that under the averments in the complaint the trustee did contract a debt in the name of and in behalf of his township; that as the complaint charged the violation of sections 6006 and 6007 by the trustee, but that he had secured the money in the name of the township by virtue of and under color of his office, he and his bondsmen were liable under the act of March 5, 1883, for the amount of money so received and converted. Township v. Litton, and State v. Hawes, supra, were cited. It will be perceived that the consideration of the notes was ) 522 OCTOBER TERM, 1894. Opinion of the Court. fully set forth in the pleading; that it appeared therefrom that the indebtedness was contracted in the line of official duty and authority ; and that the money was loaned in good faith. Tested by these principles, the defect in the complaint before us lies in the failure to show that any debt was contracted within the meaning of the act of 1883. The first paragraph contains no averment as to what the certificates were given for. The certificates stated that the sums specified therein were due for “ school supplies ” or “ for maps, charts, and supplies,” “ bought for and received by this township ; ” but the action was upon the official bond and not upon the certificates, and the latter could neither add to nor take from the pleading, and “ to withstand a demurrer the pleading must be good within itself without reference to the writing.” State ex rel. Cunningham v. Helms, supra. If, however, resort were had to the recitals in the certificates to aid the complaint, the paragraph would still be lacking, for it would not appear therefrom that the supplies were suitable and necessary for the township. The second paragraph alleged that the consideration of the certificates was “ a large amount of goods for the use of the schools of said Mill Creek township,” but it was not averred that the goods were suitable and necessary, or were delivered to and received by the township. There was no averment as to value, and it appeared in neither count that school supplies suitable and necessary for the township formed the consideration of the certificates. No basis was laid for the claim that they were taken by the payee in good faith as issued either in virtue, or under color, of office. Grimsley v. State, 116 Indiana, 130; Bloomington Township v. National School Furniture Company, 107 Indiana, 43; Litton v. Wright School Township, 127 Indiana, 81; Honey Creek School Township v. Barnes, 119 Indiana, 213. We do not regard the averments as sufficient under the act of March 5,1883, as interpreted by the Supreme Court of the State. Judgment affirmed. IK RE NEW YORK &c. STEAMSHIP CO., Petitioner. 523 Statement of the Case. In re NEW YORK AND PORTO RICO STEAMSHIP COMPANY, Petitioner. ORIGINAL. No. 8. Original. Submitted December 17,1894. — Decided January 7, 1895. In re Rice, Petitioner, ante, 396, affirmed and applied, to the points: (1) That a party is entitled to a writ of prohibition as a matter of right where it appears that the court whose action is sought to be prohibited had clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, and that he objected to the jurisdiction at the outset, and has no other remedy; (2) That where there is another remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary; and it is not obligatory where the case has gone to sentence, and the want of jurisdiction does not appear on the face of the proceedings. When a District Court has general jurisdiction in admiralty over the subjectmatter and over the parties, it should be allowed to proceed to decision; and if it commits error in entertaining a claimant’s contention against the charterers in the same suit with the libel against the ship, the error may be corrected on appeal. The American Sugar Refining Company and John B. Gossler filed their libel July 22, 1893, in the District Court of the United States for the Southern District of New York, against the British steamship Centurion to recover damages to a consignment of hogsheads of sugar imported from ports in Porto Rico to New York under certain bills of lading. The faults specified as the grounds of the claim were negligent and improper stowage; want of proper care on the part of the master, officers, and crew, or of the agent of the vessel and persons employed by him ; failure to properly clean the hold and bilges for the cargo before loading it; omission to close the hatches between certain molasses, which was stowed in the between-deck, and sugar stowed in the lower hold; negligence on the part of the officers and crew to use the pumps on the voyage. And it was alleged that “ a number of hogsheads of molasses having been broken and others having been shifted, either through stress of weather or improper stowage, their 524 OCTOBER TERM, 1894. Statement of the Case. contents ran down into the lower hold upon the sugar, partly through the hatches and partly through the scuppers; that by reason of such defective condition of the hatches, pumps, bilges, sluiceways, decks, scuppers, and other equipment and appurtenances, and the failure and negligence of the officers and crew or those in charge of her to properly pump the vessel, the molasses and drainage from the sugar collected in the lower hold, washing out part of the sugar from the hogsheads and damaging the remainder.” On the twenty-eighth day of February, 1894, John Blumer & Co., owners and claimants of the Centurion, filed their petition, averring, among other things, that “the Centurion at all the times mentioned in the said libel of the American Sugar Refining Company and John B. Gossler was under a time charter to the New York and Porto Rico Steamship Company, a domestic corporation, by a charter of demise, which provided, amongst other things, that all cargoes should be loaded and stowed by the said charterers, and all work and labor in and about the loading, stowage, and discharging thereof was performed and paid for by the charterers and their servants, the master and officers of said steamship under the charter party having no duties to perform in connection with the loading, stowage, and discharge of the cargo, their functions being limited exclusively to the navigation of the vessel. The cargo in question was loaded by the agents and servants of the said charterers, the New York and Porto Rico Steamship Company, in Porto Rico, under the supervision of their purser and supercargo, who accompanied the vessel, and if there was any negligence in and about the loading, stowage, or care of the said cargo, as alleged in the said libel (which is expressly denied), such improper stowage,negligence, and want of care was on the part of the said servants of the time charterers and not on the part of the master, officers, and crew of said steamship.” And petitioners prayed that process, according to the course of cases in admiralty and maritime jurisdiction, should issue against the New York and Porto Rico Steamship Company, citing it to appear and answer the petition and the libel, and that the court should pronounce against the IN KE NEW YOKK &c. STEAMSHIP CO., Petitioner. 525 Statement of the Case. charterers instead of against the steamship, if the allegations of the libel should be proved and sustained; and for general relief. Citation was ordered to issue and upon the return thereof the charterers appeared “ specially for the purpose of objecting to the jurisdiction of this court,” and moved to set aside the process on the grounds: u 1. That this court has no jurisdiction in admiralty to entertain such petition. 2. That upon the face of said petition it does not set forth any case wherein process ought of right to issue against the said New York and Porto Rico Steamship Company.” The District Court denied the motion to set aside, the District Judffe stating in a memorandum: “ I cannot sustain either of the within objections, and no such inconveniences are made probable as should lead to the disallowance in this instance as a matter of discretion.” The New York and Porto Rico Steamship Company then applied to this court for an order to show cause why a writ of prohibition should not issue prohibiting the District Court from taking jurisdiction of the petition under which that company was brought into the suit of the libellants against the Centurion. Leave having been granted to file the application, and a rule having been entered thereon, the District Judge made his return thereto, submitting: “ That the order and the citation to make the New York and Porto Rico Steamship Company a party defendant were issued because in the libel it was alleged that the damage to the sugars in question arose from different alleged acts of negligence, for some of which, if established, it appeared by the petition of the owners of the Centurion that the New York and Porto Rico Company would be primarily liable and bound to indemnify the shipowners, and for other of said acts of negligence, if proved, the ship would be primarily liable ; and that the presence of the last-named company as a party to the suit was necessary to the due administration of justice in order to avoid a multiplicity of suits; to secure a complete hearing of the subject-matter through the presence of all the parties interested ; to obtain an adjudication which should do justice to each and be binding upon all; to avoid conflicting decisions to which separate suits would be liable 526 OCTOBER TERM, 1894. Statement of the Case. through the different evidence likely to be produced in them when the parties were different, and thus to avoid any possible failure of justice through such causes, and any discredit to the administration thereof; and because the case, though not within the letter, was deemed to be within the spirit of the 59th Rule of the Supreme Court in admiralty, and because the order of this court to bring in the said company as a defendant at once instead of requiring the owners of the Centurion to wait until after a judgment against them before filing an independent libel against the said company in case negligent stowage was established, was, in the absence of any express rule on the subject by the Supreme Court, deemed to be within the limits of the authority of this court, as conferred by section 918 of the Revised Statutes, whereby this court is authorized ‘ to regulate its own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings,’ and also as conferred by the 46th Rule of the Supreme Court in admiralty authorizing the District Court in cases ‘ not provided for by the previous rules ’ to regulate its practice ‘ in such manner as it shall deem most expedient for the due administration of justice in suits in admiralty.’ Of these considerations a fuller statement has been given by this court in the cases of The Hudson, 15 Fed. Rep. 162, and The Alert, 40 Fed. Rep. 836, to which reference is hereby respectfully made. “A further reason for the said order and citation was, that since the promulgation of the said 59th Rule, the constant resort to it in innumerable instances has been found in practice most useful in preventing abuses, and in general extremely satisfactory; and the occasional application of the rule to other cases of negligence or torts, closely analogous to those expressly covered by the 59th Rule, has proved equally conducive to the most speedy and satisfactory distribution of justice. “The motion to set aside the citation was denied for the above reasons, and because in the present instance no incon venience to the said New York and Porto Rico Company was shown or even averred to be likely to arise, such as IN RE NEW YORK &c. STEAMSHIP CO., Petitioner. 527 Opinion of the Court. might lead the court in its discretion to withhold the relief asked for by the defendant shipowners. “I further certify that the following additional pleadings have been filed in said cause, viz., the claimants’ answer to the libel, and the libellants’ answer to the petition, copies of which are hereto annexed ; and that, on the argument of the motion to set aside the additional process, the substance of said claimants’ answer was stated to the court, as the answer to be filed; and that the New York and Porto Rico Steamship Company has not answered, having been given by me until twenty days after the decision on this application for a writ of prohibition, in which to answer.” The answer of claimants thus referred to denied that the loss was ascribable to any act or omission for which the vessel or her owners were liable, but averred that it should be ascribed to perils of the sea; and in the alternative, “that if there was any neglect or default on the part of those engaged in or about the stowage, care or delivery of the cargo, as to which they had no knowledge, such neglect or default was on the part of the said charterers, their agents or servants, for which the claimants and the said steamship should not be held responsible.” Claimants also set up in bar of the suit a decree in favor of libellants under a previous libel. 57 Fed. Rep. 412. That was a case arising on a different consignment of cargo stored in the same hold, on the same voyage, and the charterers, who were brought in as in this case, were held liable to pay the decree. George A. Black for the petitioner. Mr. J. Parker Kirlin opposing. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. In his return to the rule the learned District Judge, in elucidation of the grounds on which his order rested, refers to The Hudson, 15 Fed. Rep. 162, and The Alert, 40 Fed. 528 OCTOBER TERM, 1894. Opinion of the Court. Rep. 836. In The Hudson it was held that where several vessels are alleged to be in fault in causing a collision by which the property of a third person is injured, in a libel by the latter to recover his damages, all the vessels should be proceeded against as defendants to avoid multiplicity of suits, and to enable the damages to be justly apportioned among those liable according to the law in admiralty; and that if in such suit the libellant proceeds against one vessel only, it is competent for the District Court to award its further process in the cause, upon the petition of the vessel sued, for the arrest of the other vessels to answer for their share of the damage. The question of the right to pursue this course was discussed at large by the learned judge and the conclusion reached that it was competent for the District Court in cases not provided for by the rules in admiralty of this court to regulate its own practice and to allow remedies according to the analogies of admiralty procedure as new exigencies arose, which the court might deem necessary for the due administration of justice; and that it was essential and expedient in collision cases in admiralty that the liability of all persons or vessels involved should be determined in a single action rather than in successive independent suits. The decision was announced February 7, 1883, and on March 26, 1883, Rule 59 in admiralty was promulgated by this court. 112 U. S. 743. This rule provided for procedure through. which in a suit against one vessel for damage by collision process might be issued in the same suit against any other vessel charged with contributing to the same collision, or any other party, and for proceedings thereon. In The Alert the District Court decided that in an action in rem against a chartered ship for damage to cargo, the charterers might, on the claimants’ petition showing that the damage arose from the charterers’ fault, be made parties defendant on the analogy of The Hudson, and of Rule 59. Afterwards, the court, having no doubt upon the evidence taken in the case that libellant was entitled to a decree against the Alert, while it did not clear up the dispute between the codefendants, held that the libellant might take IN KE NEW YORK &c. STEAMSHIP CO., Petitioner. 529 Opinion of the Court. a decree against the Alert, and the case be retained for subsequent determination as between the defendants. 44 Fed. Rep. 685. The claimants thereupon appealed to the Circuit Court of Appeals for the Second Circuit, because the District Court had not decided the whole case and determined the rights of all the parties thereto, but the decree of the Circuit Court was affirmed. 61 Fed. Rep. 113. The opinion of the District Judge on the motion to set aside the process against the charterers as unauthorized (40 Fed. Rep. 836) is an able and exhaustive discussion of the question involved. The Alert was sued in rem for damage to cargo by the breaking of her tackle while discharging under a charter, and her owners in their answer averred that the tackle was furnished either by the shipper or by the charterers under a special agreement between them and not by the ship. The learned judge said: “ The papers on which the present order against the charterers was issued show that the contract sued on was the charterers’ contract. The libel is for damages upon the breach of this contract, through a negligent delivery of cargo. The charterers were in possession of the ship; they were the owners pro hac vice • they were the principals in the contract. The bill of lading was their obligation, not that of the master, who protested against such cargo, and no fault appears in the ship or master. The owners of the ship, who have been obliged to interpose as claimants to prevent the sacrifice of their property, and the master, are under no personal responsibility. They are strangers to the contract sued on, and without any certain means of ascertaining the facts, or producing the evidence of them. Upon the case, as thus far presented, if the ship is liable, the charterers are also liable, and bound to indemnify the claimants. Yet the claimants, if defeated in this suit, when they sue the charterers for indemnity may be again defeated through the difference in the proofs; and the libellants, if defeated here, may again sue the charterers. If the charterers admitted their obligation to indemnify the claimants for the results of the present action, or if there were any express contract imposing this voi. CLV—34 530 OCTOBER TERM, 1894. Opinion of the Court. obligation on them, the need of such an order as the present would be less, since notice to the charterers of the pendency of this action, and an opportunity to defend it, would bind them by the result, . . . though this would not prevent the injustice to the shipowners of being compelled to pay the damages on the charterers’ contract before the latter were called on for payment. “The charterers, however, do not admit their liability to indemnify the shipowners. There is no express contract covering the point. The obligation of the charterers to indemnify is directly involved in the question to be tried in this suit, viz., whether charterers agreed to supply the tackle, and depends on the same evidence. The charterers, if not made parties now, might litigate the same question anew in any subsequent suit. . . . Under the former practice in equity, the charterers would be brought in as defendants as a matter of course. Under the present practice in England, since 1873, the introduction of third persons in such cases is in the ordinary course of procedure, even in common law suits.” Many cases under the English Judicature Act were cited, and the practice in countries deriving their procedure from the civil law examined in the light of authority. In the case at bar the bill of lading, under which the cargo described in the libel was transported, was the contract of the New York and Porto Rico Steamship Company and not the contract of the shipowners. It was issued in virtue of authority conferred by the charter party, and the charter party was alleged in the petition to be the basis of the claim made by the shipowners to receive indemnity for any sum they might be compelled to pay by reason of the charterers’ negligence in and about the transportation of the cargo. The District Court had jurisdiction over subject-matter and parties so far as the libel was concerned, and if, after decree thereon against the shipowners, the latter had brought suit against the charterers to recover from them, under the provisions of the charter party, the damages the shipowners had been compelled to pay, or if libellants had originally pro- IN RE NEW YORK &c. STEAMSHIP CO., Petitioner. 531 Opinion of the Court. ceeded against the charterers in personam for breach of the implied or expressed obligations of the bill of lading, the District Court would have had jurisdiction. In this instance, the District Court saw fit to adopt the practice, which would have obtained in equity, of bringing all the parties in and trying the whole matter at once, and we are asked to prohibit that court from so proceeding on the ground of want of jurisdiction thus to implead the charterers. We have recently thus stated the principles applicable to the issue of the writ of prohibition, in In re Rice, ante, 396: “ Where it appears that the court, whose action is sought to be prohibited, has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset and has no other remedy is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory where the case has gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings. Smith v. Whitney, 116 U. S. 167, 173; In re Cooper, 143 U. S. 472, 495.” Without reviewing the action of the District Court on its merits, it certainly cannot be said that that court was clearly without jurisdiction, or that petitioners were without other remedy; for in the event of a decree against them, they could appeal directly to this court on the question of jurisdiction, or to the Circuit Court of Appeals upon the whole case, and that court might certify the question to this court for decision. hxparte Morrison, 147 IT. 8.114,126 ; United States v. Jahn, 155 U. S. 109. And the case is far from being one in which we should regard it as a proper exercise of discretion to interfere with the orderly progress of the suit below by the issue of this writ. The District Court, having general jurisdiction over the subject-matter and over the parties, should be allowed to 532 OCTOBER TERM, 1894. Counsel for Plaintiffs in Error. proceed to decision, and if error has been committed in entertaining the claimants’ contention against the charterers in the same suit with the libel against the ship, it may be corrected on appeal. In re Fas sett, Petitioner, 142 IT. S. 479, 484; Moran v. Sturges, 154 IT. S. 256, 286. Writ of prohibition denied. COOPER v. NEWELL. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS. No. 129. Submitted December 18,1894. — Decided January 7,1895. Horne v. George H. Hammond Go., 155 U. S. 393, affirmed and applied. Trespass to try title. The premises in dispute were alleged in the plaintiff’s petition to be “ of the value of fifty thousand dollars.” The allegations therein respecting the citizenship of the parties were as follows: “ The petition of Stewart Newell, a resident citizen of the city of New Y ork, in the State of New York, hereinafter styled plaintiff, complaining of Eliza Cooper, B. P. Cooper, and Fannie Westrope, all residents of Galveston County, in the State of Texas, and hereinafter styled defendants.” No other allegations on this point were made below, and no question of jurisdiction was raised there. Verdict and judgment for plaintiff. Defendant sued out this writ of error. In his brief, filed in this court, the counsel for the plaintiffs in error said: “We here assign, as ground for reversal, the further error that the court had no jurisdiction of the cause, in that the citizenship of the defendants is not disclosed by the record. The petition complains of defendants 1 all residents of Galveston County, in the State of Texas.’ Nothing further on the subject is reflected by the record.” JZ?. F. Charles Hums for plaintiffs in error, COOPER v. NEWELL. 533 Argument for Defendant in Error. Hr. John Ireland and Hr. A. H. Garland for defendant in error. Hr. Garland, in his brief, said: Counsel for plaintiffs presents here to this court a question which is not raised in the court below, and it is now for the first time in the progress of the case suggested; and that is, that there is no sufficient averment of the citizenship of the defendant below to give the trial court jurisdiction of this cause. It is true that the petition does not state with directness that defendants below were citizens of the State of Texas, but if their citizenship can be sufficiently shown by the record, that will be sufficient. In other words, it is not necessary, in order to give the jurisdiction, that citizenship should absolutely be averred in the petition or declaration. To use the language of the Chief Justice in Railway Co. v. Ramsey, 22 Wall. 322, 328, “ If, therefore, with these papers in the record the jurisdiction would appear, the judgment ought not to have been arrested,” we say, if the papers and proceedings in this record show the citizenship, that would be quite sufficient.” That case has been affirmed and followed by this court in Briges v. Sperry, 95 IT. S. 401; Robertson n. Cease, 97 U. S. 646; and Grace v. American Ins. Co., 109 IT. S. 278. Now to the record : they are averred in the petition to be residents; residence is prima facie evidence of citizenship. Then the averment is distinct that they entered into possession of the land in controversy, ejected Newell therefrom, and are in possession of the land, and withhold it from him. Then they are served with process where they are residents, and they come and appear by attorney and plead to the merits of the case. Ordinarily right here the question would end, and they would not be permitted to raise the point of jurisdiction. Here is an express waiver of the question, and a virtual admission of citizenship. Upon this state of the case, to say no more, it would appear that there was jurisdiction ample and complete. And it is entirely too late, in view of these facts, to insist upon the question here. Gassies v. Ballon, 6 Pet. 761; Express Co. v. Kountze Bros., 8 Wall. 342; Bradstreet v. Thomas, 12 Pet. 59. 534 OCTOBER TERM, 1894. Statement of the Case. The Chief Justice: The judgment is reversed and the cause remanded to the Circuit Court for further proceedings, upon the authority of Horne v. George H. Hammond Company, ante, 393, and cases cited. Reversed. BURKE v. AMERICAN LOAN AND TRUST COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. No. 102. Argued December 4,1894. — Decided January 7,1895. An agreement by a Finance Company to undertake the work of the reorganization of a railway company and the procuring of a loan to it is held to have been executed by it so far as to entitle it to a commission of ten per cent on the par value of the bonds issued by the company, payable in such bonds at par. On January 23, 1887, a decree of foreclosure and sale was entered in the Circuit Court of the United States for the Northern District of Ohio, in the case of The American Loan de Trust Company n. The Toledo, Columbus <& Southern Railway Company a/nd Theophilus P. Brown. In this decree there was a finding that on April 22, 1885, the defendant railway company, owning a line of railway, with appurtenances, extending from Toledo to Findlay, had issued 825 bonds of $1000 each, and secured the same by a trust deed on all its property, and that it had defaulted in the payment of interest on the bonds; and an order for a sale of the property in satisfaction of the debt, principal, and interest. On October 16, 1888, the property was sold for the sum of $600,000 to Stevenson Burke and Charles Hickox, who turned in on their purchase 713 of the outstanding bonds, and at the same time made claim of title to the remaining 112 not m their possession. On February 4,1889, the sale was confirmed, and the dispute as to the ownership of the bonds not surrendered was referred to a special master, who, on March 25,1890, BURKE v. AMERICAN LOAN & TRUST CO. 535 Statement of the Case. reported adversely to the claims thereto of the said purchasers. This report was sustained by the court on December 20, 1890, and a final decree of distribution entered. Pending these proceedings Charles Hickox died, and an order of revivor as to his interest was entered in the name of Charles G. Hickox, his administrator. From the decree the appellants took this appeal. On the hearing in this court the only contention was as to the ownership of 80 of these bonds which had been delivered to the American Finance Company. The dispute as to title grew out of these facts: Prior to April 14, 1884, Theophilus P. Brown was the owner of all the stock except a nominal amount, and of all the first mortgage bonds, amounting to $800,000, of the Toledo and Indianapolis Railway Company. The bonds were held in hypothecation by various persons or corporations to secure the payment of certain obligations of the railway company or of Brown. The railroad had been constructed from Toledo to Findlay, in the State of Ohio, a distance of about 41 miles, but was at the time in the hands of a receiver. There were also sundry lien claims for right of way, lumber, and material. In order to extricate himself and the railway company from the financial embarrassments, and to provide for extending the railroad, he, as party of the first part, on that day entered into a contract with the American Finance Company as party of the second part. The contract provided conditionally for the organization of a new railroad corporation. To this new corporation all the stock, bonds, property, and franchises of the old corporation were to be sold and transferred, and the former was to issue its stock and bonds — of the former $25,000 per mile, and of the latter $20,000 per mile — such stock and bonds to be used in the purchase of the properties of the old corporation, in the payment of its debts and obligations, and in extending the road. The Finance Company was to undertake the work of organization, the settlement of the claims, and the procuring of a loan of from $300,000 to $400,000 111 money, to be secured by the promissory note of the party of the first part, and a pledge of either bonds of the old or the new corporation, the money thus raised to be used 536 OCTOBER TERM, 1894. Statement of the Case. in payment of the debts, and in extension of the road. Articles six, nine, and ten of the contract are as follows : “ Article VI. There is to be allotted and paid to said party of the second part, in consideration of the premises, a commission or compensation of two and one-half per centum on the amount of money raised by said party of the second part for said party of the first part by way of loans or by means of the settlement of the claims and obligations: such commission or compensation to be payable at such time as the money received from such loan or loans shall be paid over to said party of the first part by said party of the second part, or as the existing obligations secured by the pledge of bonds as collateral shall be taken up, and as said liens and other claims shall be paid by said party of the second part, it being understood that the commission mentioned in this article will have been earned by said party of the second part whenever the settlement shall be brought about as result of this agreement. But it is understood and agreed that if and so far as the loan of money shall be obtained, said party of the first part is to have the right of causing the purchase of such claims and liens upon such terms as he may be able to make with the holders thereof, and that whatever discount is saved in such purchase shall inure to the benefit of said party of the first part.” “ Article IX. Said party of the second part is to receive in consideration of the premises a commission or compensation of ten per centum on the face or par value of the bonds and stock issued and to be issued by said railroad companies and negotiated : said ten per centum on said bonds being payable in said bonds at par, or in the net cash proceeds of the sales thereof, at its option, and on said stock in said stock at par: such payments or deliveries to be made from time to time pro rata as any of said bonds shall be negotiated, sold, or exchanged for outstanding liabilities or for property, labor, and materials required by said railroad companies or either of them, or otherwise used or disposed of. “ Article X. In addition to the said ten per centum of stock hereinbefore agreed to be paid to said party of the second BURKE v. AMERICAN LOAN & TRUST CO. 537 Statement of the Case. part as commission, there is to be appropriated and transferred to said party of the second part, as hereinbefore mentioned, in further consideration of the premises and of its undertakings to secure the marketing of said bonds, the forty-five per centum of the capital stock of said new railroad company, the same to be issued and delivered to said party of the second part pro rata, from time to time, as said bonds or any of them shall be negotiated or otherwise disposed of, as provided in paragraph last above written : but the total of said ten per centum commission on stock and bonds shall not exceed ten per centum of the amount issued for each mile of road in the name of the new railroad company.” In pursuance of this agreement the Finance Company made arrangements with Israel B. Mason, of Providence, and Fran-cello G. Jillson, of Woonsocket, in Rhode Island, for a loan of $325,000, but before the loan was actually consummated, and on September 24, 1884, a tripartite agreement was entered into between Brown as party of the first part, the Finance Company as party of the second part, and Mason and Jillson as parties of the third part, which contained these recitals and stipulations: “That whereas an agreement was entered into, under date of April 14, 1884, by and between said parties of the first and second part (copies of which are held by each of the parties hereto) in relation, among other things, to the negotiation undertaken by said party of the second part for said party of the first part of the notes of said party of the first part to the amount of $325,000, and also to the negotiation of $800,000 of the stock and $800,000 of the first mortgage bonds of said Toledo and Indianapolis Railway Company, and said party of the second part has requested said parties of the third part to take said notes on behalf of themselves and associates, and said parties of the 3d part have consented thereto, upon and subject to the terms and conditions herein expressed, and subject to the consummation of all the details to the satisfaction of all the parties hereto: “It is therefore hereby agreed by and between the parties hereto that said terms and conditions are and shall be as follows: 538 OCTOBER TERM, 1894. Statement of the Case. “ 1. Said Brown is to make, endorse, and deliver his several promissory notes in approved form and denominations, payable to his own order within two years from this date, with interest at six per cent per annum from date, said interest to be payable semi-annually, and said notes to be accompanied by first mortgage bonds of said Toledo and Indianapolis Railway Company, at the rate of fifty cents on the dollar as collateral security, said bonds bearing coupons maturing April 1, 1885, all past-due coupons and those maturing October 1, 1884, being first taken off and cancelled. ***** “ 6. A bonus of ten per cent on the amount of oonds pledged as collateral security for the payment of said notes is to be paid to the purchasers of said notes at the time of such purchase, in the first mortgage bonds of said Toledo and Indianapolis Railway Company at par. ***** u 8. The net proceeds of said notes are to be deposited in such bank or trust company as the said Mason and Jillson and said American Finance Company may designate; such deposit to be made for the credit and account of said ‘ American Finance Company, trustee,’ in trust for disbursement by it for the purposes hereinabove expressed. “ 9. All the remainder of said $800,000 of first mortgage bonds of said Toledo and Indianapolis Railway Company over and above the $650,000 of the same pledged to secure the payment of said $325,000 of said notes are hereby appropriated as follows : 1. To the purchasers of said notes their said bonus, amounting to $65,000 thereof, to be distributed among them pro rata according to their respective holdings of said notes. 2. To said American Finance Company $80,000 thereof, in full payment of all its claims for commissions for negotiating said $800,000 of said bonds. 3. To said Brown $5000 thereof; such appropriations and the delivery of said bonds to be made from time to time pro rata as said notes are disposed of.” Provision was also made in this contract for a substitution of the bonds and stock of the new corporation as soon as it BURKE v. AMERICAN LOAN & TRUST CO. 539 Opinion of the Court. should be organized. These contracts were carried into effect, Mason and Jillson receiving the notes of Brown to the amount of $325,000, together with the bonds of the Toledo, Columbus and Southern Railway Company, the new corporation, $650,000 as collateral and $65,000 as bonus. The $80,000 bonds were delivered to the Finance Company. Subsequently Brown, Mason, and Jillson sold out to Burke and Hickox, and transferred to them all the bonds then remaining in their possession, to wit, the 713 surrendered at the time of the purchase. Mr. Stevenson Burke for appellants. Jfr. Benjamin F. Blair for appellee. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. The contention of appellants is that by the contract of April 14, 1884, the Finance Company was to receive a commission of two and one-half per cent upon all moneys obtained by way of loans; that it has been paid such sum; that the ten per cent provided by article nine was to be in compensation for the negotiation of the bonds, and to be paid over to the Finance Company from time to time pro rata as such bonds should be negotiated, sold, or exchanged for outstanding liabilities, or for property, labor, and material; that none were so negotiated, sold, or exchanged, and, therefore, nothing ever became due to the company on account thereof; that the tripartite agreement of September 24, 1884, reaffirms the same stipulation, for it provides that the bonds shall be “ appropriated as follows ... to said American Finance Company $80,000 thereof in full payment of all its claims for commissions for negotiating said $800,000 of said bonds.” We are unable to concur in this construction. Article nine does not limit the ten per cent compensation to the case of bonds “negotiated, sold, or exchanged,” but extends it to those “otherwise used or disposed of;” and $720,000 — that is, all of the $800,000 except the ten per cent received by the 540 OCTOBER TERM, 1894. Opinion of the Court. Finance Company — were used in securing the notes for $325,000, and in payment to Brown. So that it might plausibly be urged that under the terms of the first agreement, taken by itself, the Finance Company had earned the $80,000 of bonds. But we are not limited to the language of the first agreement. The second provides that the $150,000 of bonds remaining after the pledge of the $650,000 to secure the payment of the money borrowed shall be “ appropriated ” as follows : To the purchasers of the notes, a bonus of $65,000; to the Finance Company, $80,000 ; and to Brown, $5000; and at the close of the words of appropriation, and applicable to each of them, is this language: “ Such appropriations and the delivery of said bonds to be made from time to time^ro rata as said notes shall be disposed of.” The notes were all disposed of, and so, within the letter of this stipulation, the time had arrived for the appropriation and delivery of all of the bonds. The purchasers of the notes, as well as Brown, unquestionably took title to the bonds “ appropriated ” to them; why did not the company, the second of the three parties named, in like manner obtain title ? Not only had the time arrived for the “ appropriation ” of these bonds to the Finance Company, but in fact they had been delivered. Each bond carried on its face a proviso that it should not become valid or obligatory until authenticated by the signature of the trustee. As no question is made of the validity of these bonds, it must be assumed that they were thus each duly authenticated. Negotiable bonds — and these were negotiable bonds — may be transferred by the holder to a bona fide purchaser so as to vest in the latter a good title as against all equities between the maker and the original holder, and as a matter of fact the Finance Company did before this controversy appropriate all of these bonds as collateral security for loans made to it, and otherwise. Knowledge that these bonds could be thus used must be assumed, and as there is no pretence that the Finance Company surreptitiously or fraudulently obtained possession, it is a fair inference that they were delivered to it with the understanding on the part of all the parties of its full right to them. BURKE v. AMERICAN LOAN & TRUST CO. 541 Opinion of the Court. There is no full disclosure of all the circumstances under which the several holders received these bonds from the Finance Company, and no testimony to impeach their good faith in the transactions by which they received them. It is, therefore, difficult to see why, even if any doubt existed as to the title of the Finance Company, they are not protected as Iona fide holders. Still, further, the tripartite agreement was, as we have seen, executed on September 24, 1884. Eight days before its execution, and on September 16, the president of the Finance Company wrote to Brown a letter, received by him on the next day, the 17th, in which letter it was stated: “ Our company cannot afford, of course, for the little 2 j per cent commission on the loan only, to use its position and capital to set the road on its feet and take the risk of your death, and any contingency that might otherwise arise, and hence we, and Messrs. Jillson & Mason, are treating the negotiation as a sale of the bonds, but in doing this our company extinguishes all its claims for commissions, so far as the present portion of the road is concerned.” With such statement of the understanding of the Finance Company, Brown signed the tripartite agreement, providing for the appropriation of the $80,000 of bonds to the Finance Company in full payment of all its claims for commissions. It is hard to believe in the light of this letter, that the parties had any other idea than that, at least as soon as the notes were disposed of, the $80,000 should become the property of the Finance Company. Brown v. American Loan <&c. Co., 31 Fed. Rep. 516. Finally, it is found by the master that “ the Finance Company did in fact render important services to T. P. Brown under these agreements in the negotiating of said bonds and negotiating of loans, which enabled T. P. Brown to pay off the claims against the old Toledo and Indianapolis Railroad Company, and thereby secure possession and control of the bonds of said Toledo and Indianapolis Railroad Company which had been hypothecated to various parties to secure the claims for which said company was indebted.” 542 OCTOBER TERM, 1894. Statement. We think that the Circuit Court, in view of all these considerations, did not err in its conclusion, and, therefore, its decree is Affirmed. Mb. Justice Bbown took no part in the decision of this case. SOUTH CAROLINA v. WESLEY. EEBOB TO THE CIBOUIT C0UBT OF THE UNITED STATES FOB THE DISTBI0T OF SOUTH 0AB0LINA. No. 796. Submitted December 10,1894. — Decided January 7, 1895. W. brought an action in the Circuit Court for the District of South Carolina to recover possession of a lot of land. The defendants set up that they held for that State and had no individual rights in the premises. The Attorney General of the State, the day before the cause came on for trial, filed a suggestion that the property in controversy was used by the State for public uses, and, without submitting the rights of the State to the jurisdiction of the court, moved the dismissal of the proceedings for want of jurisdiction. The record did not show that the averments in the suggestion were either proved or admitted. The trial resulted in a verdict and judgment for the plaintiff. After the verdict and before the entry of judgment the court overruled the motion of the Attorney General. The record showed no bill of exceptions to this ruling, but it appeared by agreement of counsel that the motion was overruled and exception taken. The State sued out this writ of error. HM, (1) That the course pursued below as to the suggestion by the Attorney General could not be recognized as regular and sufficient; (2) That as the record did not show that the averments of the sugges- tion were either proved or admitted, the Circuit Court could not properly arrest the proceedings; (3) That as the State was not a party to the record, and refused to sub- mit to the jurisdiction of the court, its writ of error should be dismissed. Reference cannot properly be made to a transcript of record in a case pending in another court, to supply defects in the record of a case in this court. Motion to dismiss. The case is stated in the opinion. SOUTH CAROLINA v. WESLEY. 543 Opinion of the Court. J/r. Robert W. Shand for the motion. Mr. Sa/muel W. Melton opposing. Me. Chief Justice Fuller delivered the opinion of the court. This was an action brought in the Circuit Court of the United States for the District of South Carolina by Edward B. Wesley, a citizen of the State of New York, against J. E. Tindal and J. R. Boyles, citizens of the State of South Carolina, to recover the possession of a certain lot of land situated in the city of Columbia and State of South Carolina. The answer of defendant Tindal comprised a general denial of the allegations of the complaint, and, as a second defence, the averment that the property was in the custody of the defendant as the Secretary of State of the State of South Carolina and that he as an individual had no right, title, interest, or estate to or in the premises of any kind whatsoever. The answer of defendant Boyles, in addition to the general denial, set up that he was engaged in the employment of the Secretary of State in watching, guarding, and taking care of the premises on behalf of the State. The action was brought to trial April 4, 1894, and resulted in a verdict for plaintiff April 7, 1894, upon which judgment for the recovery of possession, and costs, was entered May 7, 1894. On April 3, 1894, the following suggestion was filed: “ And now comes O. W. Buchanan, Attorney General of the State of South Carolina, and suggests to the court and gives it to understand and be informed that the property in controversy in this action is held, occupied, and possessed through its officer and agent charged in behalf of the State of South Carolina with the custody and control of the property by virtue of the statute in such case made and provided and who is custodian of the same for and in the name of the State of South Carolina, which said property is now used by the State of South Carolina for public uses. Wherefore, without submitting the right of the State to the jurisdiction of 544 OCTOBER TERM, 1894. Opinion of the Court. the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, he moves that the complaint in said action be set aside and all the proceedings be stayed and dismissed and for such other orders as may be proper in the premises.” April 16,1894, an order was filed by the Circuit Judge overruling the motion of the Attorney General “ to dismiss the proceedings for want of jurisdiction,” and giving his reasons in that behalf. On the application of the Attorney General of the State of South Carolina, a writ of error to review the order of April 16, 1894, was allowed June 18. It is difficult to deal with such a record as this. The order of April 16 was entered nine days after the return of the. verdict, and apparently no exception was preserved to its entry. What passed upon the trial does not appear, as no bill of exceptions was taken, and it is only by resort to an agreement of counsel, dated July 12, 1894, that it can be ascertained that the Circuit Judge declined upon the trial to accede to the suggestion and that exception was taken. By the same stipulation the charge to the jury is inserted in the record, and we are referred to that for information as to the controversy. We cannot recognize the course pursued in this regard as regular and sufficient. In addition, the record does not show that the averments of the suggestion were either proved or admitted, and it certainly cannot be contended that the Circuit Court ought to have arrested proceedings on a mere suggestion. United States v. Peters, 5 Cranch, 115; The Exchange, 7 Cranch, 116; Osborn n. Bank of the United States, 9 Wheat. 738; United States v. Lee, 106 U. S. 196 ; Stanley v. Schwalby, 147 IT. S. 508. Our attention is called to the transcript of the record in the case of Tindal v. Wesley, pending on error in the Circuit Court of Appeals for the Fourth Circuit, attached to the brief of counsel for the State, but reference cannot properly be had to a transcript of the record in a case pending in another court to supply defects in the record of a case in this court. If we could take notice of it, however, the pendency of that writ of error would afford an additional reason, if WESTMORELAND v. UNITED STATES. 545 Syllabus. were a matter within our discretion, why we ought not to retain the case and affirm the order on the ground of want of error when the record is insufficient to present the question sought to be raised. And, although not discretionary, we are relieved from the necessity of reaching that result. The error assigned is as follows: “ For that his honor erred in not dismissing the case upon the suggestion of the Attorney General of South Carolina that this is really an action against said State, brought without her consent, the defendants denying having possession of the property in suit and claiming to have custody of said property for the said State, said State not being a party to the record, though a party in fact, the alleged cause of action being contractual in its nature, in that whatever rights the plaintiff has are derived from his contract with the State and the property involved in this litigation being claimed by the State.” The State does not complain that it was refused leave to intervene, but that the Circuit Court without the intervention of the State refused merely upon suggestion to dismiss the complaint against the defendants who were sued as individuals. The State was not a party to the record in the Circuit Court and did not become a party by intervention, pro interesse suo or otherwise, but expressly refused to submit its rights to the jurisdiction of the court. This being so, the motion to dismiss may well be sustained on that ground. United States v. Zee, 106 U. S. 196,197; Georgia v. Jesup, 106 U. S. 458. Writ of error dismissed. WESTMORELAND n. UNITED STATES. error to the circuit court of the united states for the EASTERN DISTRICT OF TEXAS. No. 765. Submitted December 10,1894.—Decided January 7,1895. An averment in an indictment for murder that the defendant is “ a white person and not an Indian ” is sufficient to show that he is outside of the first two clauses of Rev. Stat. § 2146. vol. clv—35 546 OCTOBER TERM, 1894. Statement of the Case. An averment in an indictment that the defendant was not a citizen of the Indian Territory will be sustained as a sufficient averment that he does not come within the provisions of article 38 of the treaty of April 28, 1866, with the Choctaws and Chickasaws, 14 Stat. 769, 779, when no challenge of the indictment in this respect is made prior to the trial, and the question is only made by motion in arrest of judgment. A charge in an indictment which charges that the defendant administered to the deceased strychnine and other poisons with the unlawful and felonious intent to take his life, and that so administered they did have the effect of causing death, is sufficient. In charging the causing of death by poisoning, it is unnecessary to aver that the poison was taken into the stomach of the deceased. On June 16,1894, the plaintiff in error was adjudged guilty of the crime of murder by the Circuit Court of the United States for the Eastern District of Texas, and sentenced to be hanged. This sentence has been brought to this court for review by writ of error. The record contains only the indictment, the judgment, and the motion in arrest thereof. The indictment charges — “ That one Thomas Westmoreland, a white person and not an Indian, nor a citizen of the Indian Territory, late of Pickens County, Chickasaw Nation, Indian Territory, in the district and circuit aforesaid, on the fifteenth day of June in the year of our Lord eighteen hundred and ninety-three, in Pickens County, in the Chickasaw Nation, in the Indian Territory, the same being annexed to and constituting a part of the said fifth circuit, and annexed to and constituting a part of the Eastern District of Texas for judicial purposes, and being within the jurisdiction of this court, did unlawfully, fraudulently, and feloniously, and with his malice aforethought, and with certain drugs and poisons, to wit, strychnine and certain poisons to the grand jurors unknown, then and there given and administered by the said Thomas Westmoreland to one Robert Green with the unlawful and felonious intent of the said Thomas Westmoreland then and there to take the life of him, the said Robert Green. “And he, the said Thomas Westmoreland, did then and there, by administering the said poison, as aforesaid, unlawfully, knowingly, and feloniously poison him, the said Robert WESTMORELAND v. UNITED STATES. 547 Opinion of the Court. Green, from the effects of which said poison he, the said Robert Green, did languish, and languishing did then and there die on the fifteenth day of June, a.d. eighteen hundred and ninety-three, and within a year and a day from said date. “And the said grand jurors aforesaid, upon their oaths aforesaid, do say that upon the day aforesaid, at the place aforesaid, with said poison aforesaid, used as aforesaid, and in the manner aforesaid, the said Thomas Westmoreland did unlawfully, feloniously, and with his malice aforethought, kill and murder the said Robert Green. The said Thomas Westmoreland and he, the said Robert Green, being then and there white persons and not Indians, nor citizens of the Indian Territory, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States of America.” JTr. C. L. Herbert for plaintiff in error. Jfr. Assistant Attorney General Whitney for defendants in error. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. It is not denied that the Circuit Court for the Eastern District of Texas has jurisdiction over offences against the laws of the United States committed in that portion of the Indian Territory described in the indictment, Act of March 1, 1889, c. 333, § 17, 18, 25 Stat. 783, 786; but it is insisted that by section 2146, Rev. Stat., such jurisdiction does not “ extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offence in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offences is or may be secured to the Indian tribes respectively,” and that no indictment can be held sufficient which does not expressly negative the exceptions contained in this section. See also the Act of 548 OCTOBER TERM, 1894. Opinion of the Court. May 2, 1890, c. 182, § 30, 26 Stat. 81, 94; In re Mayfield, 141 U. S. 107. The defendant and the deceased are described as « white persons, and not Indians, nor citizens of the Indian Territory.” The first clause in section 2146 is taken from the twenty-fifth section of the Act of June 30, 1834, c. 161, 4 Stat. 729, 733, and it was held in United States n. Royers, 4 How. 567, 573, that adoption into an Indian tribe did not bring the party thus adopted within the scope of such exception, the court saying: “ Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility to the laws of the United States remained unchanged and undiminished. He was still a white man, of the white race, and therefore not within the exception in the act of Congress.” The term “ Indian ” in section 2146 is one descriptive of race, and therefore the defendant, described as a white man and not an Indian, is shown to be outside the first two clauses of section 2146. But it is insisted that article 38 of the treaty with the Choctaws and Chickasaws, of April 28, 1866, 14 Stat. 769, 779, provides that “ every white person who, having married a Choctaw or Chickasaw, resides in the said Choctaw or Chickasaw nation, or who has been adopted by the legislative authorities, is to be deemed a member of said nation, and shall be subject to the laws of the Choctaw and Chickasaw nations according to his domicil, and to prosecution and trial before their tribunals, and to punishment according to their laws m all respects as though he was a native Choctaw or Chickasaw ; ” and that, therefore, the indictment should also negative the conditions of this article. But it is charged that the defendant and the deceased were not “ citizens of the Indian Territory.” Force must be given to this term in the indictment, and while it may be conceded that it is not the most apt to describe citizenship in an Indian tribe, yet it is not an unreasonable construction to hold that it refers to all citizenship which could possibly be acquired in the Indian Territory, including therein citizenship in any Indian tribe domicile within such limits. At least, as no challenge was made o the indictment prior to the trial, and the question was on y WESTMORELAND v. UNITED STATES. 549 Opinion of the Court. raised by motion in arrest, and its, further, that which was intended is obvious, it is fair to rule that any merely technical defect in this language was cured by the verdict. Again, it is objected that the indictment is insufficient in that it fails to allege that the defendant knew that that which he is charged to have administered to the deceased was a deadly poison, and also that the poison was taken into the stomach of the deceased. Neither of these objections is well taken. It is charged that he administered the strychnine and other poisons with the unlawful and felonious intent to take the life of the deceased, and that, so administered, they did have the effect of causing death. It matters not whether he knew the exact character of the strychnine or other poisons. It was murder if he unlawfully and feloniously administered any poison with the design of taking life, and that which he so administered did produce death. At the common law, though it was necessary to allege the kind of poison administered/ nevertheless proof of the use of a different kind of poison was regarded as an immaterial variance. “ If A. be indicted for poisoning of B., it must allege the kind of poison, but if he poisoned B. with another kind of poisoning, yet it maintains the indictment, for the kind of death is the same.” 2 Hale P. 0. 185; 2 Bishop Crim. Pro. §§ 514 and 555. So, also, it is unnecessary to aver that the poison was taken into the stomach of the deceased. The crime woukl be complete if the poison was by hypodermic injection, or otherwise, introduced into the body of the deceased, and affecting the heart, or other organ, caused the death. The indictment need not specify in detail the mode in which the poison affected the body, or the particular organ upon which its operation was had. It is enough to charge that poison was administered, and that such poison, so administered, caused the death. These are all the objections made to the indictment, and as its sufficiency is the only question presented for consideration, it must be held that no error is apparent in the record, and the judgment is Affirmed. 550 OCTOBER TERM, 1894. Statement of the Case. MoCABE v. MATTHEWS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA. No. 109. Argued and submitted December 13, 1894. — Decided January 7,1895. A decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice Seem to demand in view of all the circumstances of the case. A. contracted with B. in writing for the sale to him of a part interest in lands in Florida then worth about $300 to be acquired by B. A. paid B. one dollar, and after that did nothing to assist B. He waited nine years after the contract was made, nearly as much after he had good reason to believe that B. repudiated all liability under it, nearly five years after B. had filed his deed of the property in the public records, two years after he received actual notice of that fact, and then, when the property had reached a value of $15,000, without any tender of money or other consideration filed a bill for specific performance. Held, that the long delay was such laches as forbade a court of equity to interfere. On March 1, 1889, the appellant, as plaintiff, filed in the Circuit Court his bill to compel the specific performance of a contract for the sale of real estate. The defendant demurred to this bill, on» the ground of a lack of equity, which demurrer, on April 13, 1889, was sustained and the bill dismissed. 40 Fed. Rep. 338. From this decree the plaintiff appealed to this court. The facts as disclosed by the bill were that on February 9, 1880, Mrs. F. G. Montgomery, the owner of a tract of land, containing 1635 acres, in Volusia County, State of Florida, entered into a written contract for the conveyance thereof to the defendant Matthews. This contract recited a consideration of one dollar, the receipt whereof was acknowledged, and the further “ consideration of a tract of land situated near Orange Lake, containing five acres, the same to be planted out with five hundred orange stumps and the stumps budded with sweet buds and warranted to grow, and the party of the McCABE v. MATTHEWS. 551 Statement of the Case. second part is to fence the lands and keep the trees from being damaged by stock of any kind,” and provided that the purchase should be at the refusal of the defendant for a period of forty-five days. On February 10 the defendant executed a written instrument, purporting to sell and assign to plaintiff an undivided half interest in the agreement and the land; and thereafter, on the same day, a further contract for the subsequent conveyance of such half interest. This latter instrument was in the following language: “Whereas Frances G. Montgomery, of St. John’s County, Florida, has, on the 9th day of February, 1880, agreed in writing to grant and convey to me by deed all her estate and interest in section 40, in T. 13 S., of R. 32 east, and section 37, in T. 14 S., of R. 32 east, containing 1635 acres, in Volusia County, Florida, subject to my refusal for forty-five days, for the consideration named in her agreement: “Now, therefore, in consideration of the sum of one dollar to me in hand paid by William McCabe, of Tallahassee, Florida, the receipt whereof is hereby acknowledged, of the further sum of one hundred dollars, for which I am to draw upon said William McCabe with my deed to him, his heirs and assigns, for a one-half undivided interest in said lands attached, when I deliver to said Montgomery the deed tb her referred to in said agreement and she makes to me the deed of said lands therein referred to in her said agreement, and of the further sum of fifty dollars to be paid by said William McCabe after the issue of the patent for said lands and the completion of any proceedings founded on said patent, when issued, deemed necessary, in connection with said patent, to fortify the title to said lands and render it more marketable, the expenses connected with which issue and said proceedings connected therewith are to be borne solely by said McCabe, I do hereby sell and assign to said William McCabe, his heirs and assigns, a one-half undivided interest in said agreement of said Montgomery and in said lands so to be conveyed by her to me as aforesaid, and agree to make to the said McCabe, his heirs and assigns, a deed for said interest in said lands and to 552 OCTOBER TERM, 1894. Statement of the Case. attach the same to said draft on him as aforesaid within three months from the date hereof, it being understood that the expenses connected with the claim of one Stephen Snow to said lands or a part of them and all other expenses shall be borne equally by said McCabe and myself as joint equal owners of said lands so to be conveyed as aforesaid. “In witness whereof I hereto set my hand and seal, at Jacksonville, Fla., this 10th day of February, a.d. 1880. “(S’d) J. O. Matthews, [seal.]” Before the expiration of the forty-five days the defendant notified Mrs. Montgomery of the acceptance of the contract. The plaintiff after the execution of his contracts with the defendant went to the county seat of Volusia County for the purpose of investigating the claims of Stephen Snow, said to be in possession of the lands, or a part thereof. In such investigation he expended his time and money, and obtained valuable information concerning the lands and the title thereto, which he communicated to defendant, and shortly thereafter returned to his home in Toronto, Canada, instructing the defendant to send the deed with the draft as provided in the contract. There he attempted to open a correspondence with defendant, but the last letter received from him was dated June 20, 1880, and though plaintiff subsequently wrote several times he received no answer, and finding that defendant so failed to answer, he caused, on December 23, 1880, his contract to be recorded in the office of the clerk of the Circuit Court of that county. Subsequently the defendant procured a deed for the lands- from Mrs. Montgomery, which deed bears date July 1, 1882, and was recorded in the office of the clerk of the Circuit Court of Volusia County on July 14? 1884, and in pursuance of such deed he entered into and has continued in possession. In fraud of plaintiff’s rights, and with the purpose to defraud him, defendant kept the fact of the deed and the possession of the lands a secret from plaintiff, who was not informed thereof until the spring of the year 1887, when he received notice thereof from the clerk of the Circuit Court for Volusia County. Plaintiff thereupon McCABE v. MATTHEWS. 553 Opinion of the Court. obtained an abstract of the title, whereon appeared the deed from Mrs. Montgomery to defendant. As soon as it was practicable thereafter for him to leave his business affairs, and in February, 1888, he went to Florida to take 'steps for asserting his rights, and employed counsel, who at once demanded a conveyance to plaintiff of the undivided half interest, and at the same time notified the defendant of the plaintiff’s readiness to perform his obligations. The bill also alleged that plaintiff had always been ready and willing to comply with all the terms of the contract by him stipulated to be kept and performed, but that the defendant wholly refused and still refuses to comply on his part, and further, on information and belief, that defendant had conveyed or attempted to convey, and mortgaged or attempted to mortgage, certain unknown pieces or parcels of the tract. There was no allegation in the bill of any tender of either of the two sums of one hundred dollars and fifty dollars, stipulated by said contract to be paid by plaintiff to defendant, nor was there any allegation of the present value of the property, but after the entry of the decree of dismissal two affidavits were filed by consent of the defendant, showing the value of the tract as a whole at the date of the decree, April 13,1889, to be over $15,000. Mr. Henry Wise Garnett for appellant. Mr. H. Bisbee for appellee submitted on his brief. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. A decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice seem to demand in view of all the circumstances of the case. Pratt V. Carroll, 8 Cranch, 471; Holt v. Rogers, 8 Pet. 420; Willard v- Tayloe, 8 Wall. 557; Hennessy v. Woolworth, 128 IT. S. 438. Tested by this rule, the decision of the Circuit Court was 554 OCTOBER TERM, 1894. Opinion of the Court. unquestionably correct. There is no averment in the bill of a tender of any money by plaintiff to defendant, and while it may be that the stipulations in the contract of conveyance by defendant and payment by plaintiff are independent covenants, {Loud v. Pomona Land and Water Company, 153 U. S. 564,) and that the obligation of conveyance precedes that of payment, yet the omission of a tender is significant upon the question of how much the plaintiff suffers by reason of a refusal to decree specific performance. The only sum which defendant has received is one dollar, and that is the only definite amount which it is shown the plaintiff has expended. It is true the bill alleges that after the contract he went to the county seat of Volusia County, and expended time and money in obtaining information concerning the title, but how much time and money is not disclosed. In other words, the plaintiff, having invested a dollar in this speculation, waits nine years before he comes into a court of equity to ask a decree for the performance of his contract of purchase. On the other hand, by the agreement between the defendant and Mrs. Montgomery, he was to convey to her a tract of land containing five acres, which he was to plant with five hundred orange stumps, the stumps budded with sweet buds, and guaranteed to grow; to fence the land and keep the trees from being damaged by stock of any kind. By the first instrument executed by the defendant, to wit, the assignment of a half interest in the agreement, the plaintiff' was doubtless under obligation to assume the burden of half the consideration to be paid by defendant to Mrs. Montgomery. The second instrument, the contract to convey, upon which this suit is brought, executed the same day, was apparently in substitution of the assignment, and perhaps made the payment of the $150 the equivalent of such half of the consideration. As the defendant obtained a deed from Mrs. Montgomery, it is to be presumed that he fully complied with the terms of his contract with her; that he conveyed the five acres and performed all the work required thereon. Sue was his investment over against the plaintiff’s one dollar. While plairltiff was not informed by defendant that t e McCABE v. MATTHEWS. 555 Opinion of the Court. latter repudiated the contract, he had the very same year good reason to believe that such was the fact, because his letters to defendant were unanswered; indeed, his suspicions were aroused, and in consequence thereof he caused his contract to be recorded before the close of the year 1880. The deed to defendant was duly recorded in July, 1884, and the plaintiff had actual knowledge of this in the spring of 1887. Notwithstanding all this he waits until March 1, 1889, before filing his bill, and, upon the entry of a decree against him, on April 13, 1889, he waits until March 9, 1891, before taking his appeal to this court. Nowhere on the face of the bill is the value of the property disclosed; nothing to show a value sufficient to give jurisdiction to the Circuit Court, but by the affidavits filed after the decree of dismissal it appears that the entire property was worth at the time of the decree (which was less than a month and a half after the filing of the bill) the sum of $15,000. Great has been the change in the value of the premises I The half interest was worth at the date of his contract, as shown by the stipulated price, but $150, while at the time he brings his suit it is worth $7500. It does not appear that he has done anything towards bringing about such increase of value, and no excuse is shown for his ignorance of the exact condition of affairs, or his inattention to the matter, except his residence in a remote province. So that we have presented the case of one who, investing a dollar in a proposed purchase of lands, and doing nothing to assist his vendor in furnishing the property or performing the work necessary to be furnished and performed by such vendor to acquire the title to the lands, waits nine years after his contract has been entered into, nearly nine years after he has good reason to believe that such vendor repudiates all liability under the contract, nearly five years after notice has been given by such vendor of his acquisition of the title by filing the deed in the public records, two years after he receives actual notice of that fact, and then without the tender of any money, or other consideration, appeals to a court of equity to compel such vendor to deed to him an interest in land worth 556 OCTOBER TERM, 1894. Syllabus. at the time of his contract only $150, and now $7500. It seems to us to be a case of a purely speculative contract on the part of the plaintiff; doing nothing himself, he waits many years to see what the outcome of the purchase by defendant shall be. If such purchase proves a profitable investment, he will demand his share; if unprofitable, he will let it alone. Under those circumstances the long delay is such laches as forbids a court of equity to interfere. The decision of the Circuit Court is right, and it is Affirmed. EVANSVILLE BANK v. GERMAN-AMERICAN BANK. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 85. Argued November 20,1894. —Decided January 7,1895. In June, 1887, the Fidelity Bank of Cincinnati had a contract with the German-American Bank of Peoria “ to credit sight items on any point in the United States east of Illinois, where there are banks, at par; and to make collections on same points ” and “ to credit the same at par when collected.” At that time there also existed an arrangement between the Fidelity Bank and the Bank of Evansville in Indiana for mutual and reciprocal collection business. On the 14th of that month the German-American Bank sent to the Fidelity Bank for collection a sight draft on a firm in Terre Haute, endorsed “ for collection.” On the 16th this draft was forwarded to the Evansville Bank for collection. On the 18th the draft was sent by the Evansville Bank to a bank in Terre Haute for collection, and was collected by the latter bank on the 20th of June. On the morning of the 21st, before banking hours, the Evansville Bank received news of the collection, and after crediting the Fidelity Bank with it, as of June 20th, notified the Fidelity Bank of the payment and of the entry to credit by a letter which was received there on the 22d. On the 20th the Fidelity Bank was, and for ten days before it had been, insolvent. It was not open for business after the 20th, and on the 27th passed into the hands of a receiver. Held, that the Fidelity Bank, though it acquired the mere legal title to the draft, never became its equitable owner ; that the notice on the draft that it was for collection bound all parties into whose hands it came; that thè Evans- EVANSVILLE BANK v. GER.-AMERICAN BANK. 557 Statement of the Case. ville Bank could not by its entry of credit to the Fidelity Bank release itself of its obligation to the German-American Bank; and that the mere fact that news of the condition of the Fidelity Bank had not reached the Evansville Bank at the time it made the entry was immaterial. Commercial Bank of Pennsylvania v. Armstrong, 148 U. S. 50, shown not to conflict with this decision. This case was tried by the court, a jury having been waived. A special finding of facts was made. From this it appears that during the month of June, 1887, the Fidelity National Bank of Cincinnati, Ohio, (hereinafter called the Fidelity Bank,) and the German-American Bank of Peoria, Illinois, (hereinafter called the German-American Bank,) the plaintiff in the court below, were mutually transacting the business of collecting mercantile paper each for the other, and were keeping ledger accounts with each other, under a contract entered into in the month of September, 1886. This contract was made by correspondence, which resulted in an acceptance by the German-American Bank of the following proposition of the Fidelity Bank: “We will credit sight items on any point in the United States east of Illinois, where there are banks, at par; and make collections on same points, which, when paid, will credit at par.” On June 14, 1887, the German-American Bank purchased from the Great Western Distilling Company of Peoria a draft, of which the following is a copy: “Great Western Distilling Co;, Distillers and Refiners of Spirits. “$6926.15. “Peoria, Ills., June 14th, 1887. “At sight pay to the order of Weston Arnold, cashier, sixty-nine hundred twenty-six 15-100 dollars. “J. B. Greenhut, “ Sec. and Treas. “ To Terre Haute Distilling Co., Terre Haute, Ind. “No. 4357.” and on the same day transmitted it to the Fidelity Bank in the following letter: 558 OCTOBER TERM, 1894. Statement of the Case. “Peoria, Ills., June 14th, 1887. “ Ammi Baldwin, Esq., cash., Cin’ti, O. “Dear Sir: Enclosed find for collection and credit items as stated below. Respectfully yours, “Weston Arnold, Cashier. “Return at once if unpaid, giving reasons; protest all paper unless otherwise instructed. “Terre Haute Dist. Co.......No pro........$6926 15.” At the time of its transmission it was endorsed : “Pay Fidelity National Bank of Cincinnati, O., or order, for collection for German-American Nat’l Bank of Peoria, Ills. “ W. Arnold, Cash.” this endorsement being made by a rubber stamp, which had been forwarded to the German-American Bank by the Fidelity Bank. At the time the German-American Bank transmitted this draft to the Fidelity Bank it credited cash with the full amount of said draft and charged the same to the said Fidelity Bank in its ledger account with said bank as a debit against the said Fidelity Bank. Such entries were made in pursuance of the right which the plaintiff claimed to have under its said contract and the custom of bankers, a custom expressly found to exist throughout the United States, to enter, at the time of transmission, sight paper transmitted to the said Fidelity Bank for collection upon its ledger account with the said Fidelity Bank, and were provisional in that the plaintiff at the time of making said entries intended to exercise the right which it also claimed to have under its said contract with the said Fidelity Bank and the like custom of bankers to cancel each of said entries by a counter-entry in case the draft was not paid. The making of such entries was not communicated to the Fidelity Bank. The draft was also before its said transmission to the Fidelity Bank entered on the remittance register of the German-American Bank as remitted to the Fidelity Bank. The German-American Bank never at any time drew drafts EVANSVILLE BANK v. GER.-AMERICAN BANK. 559 Statement of the Case. upon the Fidelity Bank against collections transmitted to it until it had received from the latter notice of payment thereof. Upon the receipt of this draft on June 15,1887, no entry representing it was made by the Fidelity Bank in its general ledger account with the German-American Bank, but only on the collection register. Between the Fidelity Bank and the Old National Bank of Evansville, Indiana, (hereinafter called the Old National Bank,) the defendant in the court below, there then existed an arrangement for mutual and reciprocal collection business, and on June 16 the draft was forwarded by the former to the latter bank with this additional endorsement : “ Pay Old National Bank, Evansville, Ind., cashier, or order, for collection. Please report by this number, 66,923. Fidelity National Bank, Cincinnati, O. Ammi Baldwin, Cashier.” The letter enclosing the draft was in these words: “Cincinnati, 6 | 16, 1887. “Old National Bank,--, cashier, Evansville, Ind. “ Dear Sir: I enclose for collection and credit as below stated. “ Very respectfully yours, “ Ammi Baldwin, Cashier. ***** “Do not hold, but protest against all collections not accepted or paid, unless otherwise instructed by us. Advise by date of letter. Please report collections by numbers.” On June 18 the Old National Bank acknowledged receipt by a postal card as follows: “ Evansville, Ind., June 18th, 1887. “ I have received your favor of the 16th, with stated enclosure. “ Entered for coll. “ Yours respectfully, Henry Reis, Cashier.” No entry was made by it at the time on its ledger account with the Fidelity Bank, but only in its collection register. On June 18 the draft was forwarded to the First National Bank of Terre Haute, received by the latter on June 20, and paid to 560 OCTOBER TERM, 1894. Statement of the Case. it by the Terre Haute Distilling Company on the afternoon of that day between two and three o’clock. On the same afternoon a letter was written by the First National Bank to the Old National Bank, advising the latter of the payment of the draft, and that its amount had been credited to the account of the latter, which letter was posted at about four o’clock of the same afternoon. The letter was received by the Old National Bank at or about eight o’clock on the morning of June 21. During the month of June, 1887, the banking hours of these banks were from nine o’clock in the forenoon continuously until three o’clock in the afternoon, and the letter having been received before banking hours of the 21st, the amount of the draft was, in accordance with its general practice, entered by the Old National Bank in its account with the Fidelity Bank as a credit to the latter as of June 20, 1887. On June 21, 1887, the Old National Bank wrote and mailed to the Fidelity Bank a letter, notifying the latter of the payment of the draft and the entry to its credit. This letter was received by the persons in charge of the Fidelity Bank on June 22. “ On June 20, 1887, and for ten days prior thereto, the Fidelity Bank was insolvent, but neither the German-American Bank, the Old National Bank, nor the First National Bank had knowledge of this fact, nor did either of said banks have knowledge of such fact until after the failure of the Fidelity Bank, as hereinafter stated. On the morning of June 20, 1887, Mr. Eugene Powell, bank examiner, came to the Fidelity Bank for the purpose of making an examination. He did so, to a certain extent. In the afternoon of June 20, 1887, the board of directors of the Fidelity Bank had a meeting at the office of the bank, which continued in session until after the close of banking hours. After the close of banking hours the board of directors adjourned, and immediately thereafter Mr. Powell, as bank examiner, took possession of the Fidelity Bank, and that night had the combination of the safe changed, of which combination he took possession. The Fidelity Bank kept its doors open for the transaction of bank- EVANSVILLE BANK v. GER.-AMERICAN BANK. 561 Statement of the Case. ing business until the close of banking hours on June 20,1887, and transacted such banking business as offered until that time. The board of directors of the Fidelity Bank met early in the morning of June 21, 1887, and about 8.30 o’clock, half an hour before the beginning of bank hours, it was announced to its officers that the bank would not open. The Fidelity Bank did not open for business on June 21, 1887, and has never opened for business since June 20, 1887. “ Mr. Eugene Powell, bank examiner, continued in possession of the Fidelity Bank, after taking possession of it in the manner aforesaid, until June 27, 1887, when Mr. David Armstrong was appointed receiver, which position he held at the beginning of this suit. “No remittance of money or any tangible representative of money representing this draft was ever made by the First National Bank to the Old National Bank or by the Old National Bank to the Fidelity Bank or by the Fidelity Bank or its receiver to the German-American Bank, and the proceeds of this draft never passed between said banks, if at all, otherwise than by the debit and credit entries above mentioned. “ Prior to the institution of this suit the Old National Bank and the First National Bank made a mutual settlement of their collection accounts up to and including the above-mentioned entries representing said draft. The mutual collection accounts between the Old National Bank and the Fidelity Bank have not been settled on account of the insolvency of the Fidelity Bank, but the Old National Bank claims upon such settlement the benefit of the amount of said draft as a debit on its account with the Fidelity Bank. “ On the books of the Fidelity Bank, as they stood at the beginning of this suit, the Fidelity Bank owed the German-American National Bank $17,844.77. On the books of the Fidelity Bank and of the Old National Bank, as they stood at the beginning of this suit, the Fidelity Bank owed the Old National Bank $14,391.57. The above balances are made by debiting the Old National Bank with the amount of said draft and crediting the German-American Bank with the like amount.” VOL. CLV—36 562 OCTOBER TERM, 1894. Opinion of the Court. Upon these facts judgment was entered in favor of the plaintiff for the amount of the draft and interest, to reverse which judgment the defendant brought this writ of error. J/r. Alpheus H. Snow, (with whom was Mr. John M. Butler on the brief,) for plaintiff in error. Jfr. Charles W. Smith, (with whom were Mr. Thomas B. Paxton, Mr. John W. Wa/rrington, and Mr. John S. Duncan on the brief,) for defendant in error. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. The Fidelity Bank did not purchase this draft from the plaintiff, and, although it acquired the mere legal title, never became its equitable owner. It received it as an agent, and the endorsement, “ for collection, for German-American National Bank of Peoria, Illinois,” was notice to it and every subsequent holder that it was forwarded simply for collection. Neither by the express terms of the contract between the plaintiff and the Fidelity Bank, nor by the course of business between them, nor by the custom of bankers, did the receipt of the draft by the Fidelity make it a debtor for the amount thereof, neither would it become such debtor until after collection and possession of the proceeds of the draft, either actually or by settlement of accounts between the parties. Sweeny v. Easter, 1 Wall. 166; White v. National Bank, 102 U. S. 658; Commercial Bank v. Armstrong, 148 U. S. 50. The draft was collected and the proceeds thereof received by the defendant. While it was at first collected by the First National Bank of Terre Haute, yet it was by that bank credited to the defendant, notice of the credit given, and the amount settled between the two banks in the adjustment of their accounts. The case, therefore, is presented of a receipt of the proceeds of the draft by the defendant, a sub-agent or agent of the collector, and the non-receipt of the proceeds by the plaintiff, EVANSVILLE BANK v. GER.-AMERICAN BANK. 563 Opinion of the Court. the owner, and the question is whether the former has discharged itself of liability for the moneys which it has thus received. The contention of the defendant is that it paid the moneys which it received to the party from which it received the draft, to wit, the Fidelity Bank, which was the agent of the owner. It is not pretended that it ever forwarded to the Fidelity Bank the cash therefor, but the claim is that it credited such amount on the account of the Fidelity Bank, the Fidelity being at the time indebted to it, and that this is equivalent to an actual payment of money. The difficulty with this contention is, that, at the time this credit was entered by the defendant, the Fidelity was not in a condition to receive credit or make any settlement; it was insolvent, and in the custody of the officers of the law. The defendant received no notice of the collection by the Terre Haute bank, made no entry on its books, took no other action looking to a settlement with the Fidelity until the morning of the 21st, and it is found not only that the Fidelity had been insolvent for ten days theretofore, but that on the 20th the bank examiner had taken possession — a possession which he maintained until the appointment of the receiver Armstrong. At the time this examiner took possession the business of the bank stopped, and the authority of the directors and officers ceased. They could not thereafter make any settlement with the defendant to the prejudice of the rights of third parties. If on the morning of the 21st the defendant had brought to the Fidelity Bank in cash the amount which it had collected on this draft and tendered it to the officers of the Fidelity Bank in payment of a balance due to such bank, the latter could not have lawfully received that cash for such purpose, so as to relieve the defendant from, its liability to the plaintiff. And, a fortiori, if it could not accomplish this by an actual tender of the money, it cannot by a mere entry on its own books. The only way in which the defendant could, after receiving the amount of this check, discharge itself from liability to the plaintiff was by a payment to the Fidelity Bank, its endorser, at a time when the Fidelity Bank was authorized 564 OCTOBER TERM, 1894. Opinion of the Court. to receive it for the plaintiff, and the authority to so receive it terminated when it stopped business. There is nothing in the case of the Commercial Bank of Pennsylvania v. Armstrong, 148 U. S. 50, which conflicts with this. On the contrary, it was said in that opinion, in reference to a transaction similar to the one before us: “ The plaintiff, then, as principal, could unquestionably have controlled the paper at any time before its payment, and this control extended to such time as the money was received by its agent, the Fidelity.” Language found later in the opinion, upon which the defendant relies, must be understood in relation to the particular facts of that case. Certain drafts had been received by the Fidelity Bank and forwarded for collection to other banks, and by the latter collected. Of these collections some had been made by banks indebted to the Fidelity, and others by banks to whom the Fidelity was indebted, and the amount of such collections credited on their accounts with the Fidelity. The former were paid by such banks to Armstrong, the receiver of the Fidelity, and after its failure. The suit was one brought by the original owner of these drafts against the receiver, to charge the funds in his hands with a trust in respect to all these collections, and it was adjudged that he was such trustee as to the former, and not as to the latter; the former, because the collection had not been completed by the Fidelity before its failure, and, therefore, the amounts thereof subsequently received by the receiver were received for the benefit of the original holder; whilst, as to the latter, the collection by the Fidelity was complete and the original holder stood simply as a general creditor of the Fidelity for such amounts. There was in respect to these latter collections no question as to the precise time at which the transaction between the Fidelity and the collecting banks was completed, and no suggestion that an entry on the books of the Fidelity, or some other act indicating its assent to the action of the collecting banks in crediting the amount, was necessary to complete the settlement. On the contrary, it was assumed that the settlement between COUPE v. ROYER. 565 Syllabus. the Fidelity and its agents was complete at the time of the failure. It is unnecessary, in this case, to consider what would be the rights of the parties if a settlement between the defendant and the Fidelity Bank had been consummated while the latter was actually engaged in business, although in fact insolvent; for, as stated, no action was taken by the defendant until after the Fidelity had stopped business, and was in possession of the officers of the law. The mere fact that news of the condition of the Fidelity had not reached the defendant at the time it made this entry is immaterial. The condition of insolvency was “disclosed” because it was known to the officers of the law, and action had been taken by them in consequence thereof, and that is all that is necessary. We think the conclusions of the Circuit Court were correct, and its judgment is Affirmed. COUPE