UNITED STATES REPORTS VOLUME 160 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1895 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1896 Copyright, 1896, 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. EDWARD DOUGLASS WHITE, Associate Justice. RUFUS W. PECKHAM, Associate Justice.1 JUDSON HARMON, Attorney General. HOLMES CONRAD, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. 1 Mr. Justice Peckham’s commission is dated December 9, 1895. He took the oath of office in open court, January 6, 1896, and at once took his seat upon the bench. ill TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Allison v. United States..............................203 Ayers, First National Bank of Garnett v. . . . 660 Ballew v. United States...............................187 Bamberger v. Schoolfield..............................149 Bartlett v. Lockwood........................... . 357 Brygger, Keane v......................................276 Carver v. United States...............................553 Central Railroad Company v. Keegan .... 259 Chandler, Spalding v................................ 394 Chappell v. United States ...... 499 Chemical Bank v. City Bank of Portage . . . 646 City Bank of Portage, Chemical Bank u 646 Cœur D’Alene Railway and Navigation Company, Wash- ington and Idaho Railroad Company v. . . 77 Cœur D’Alene Railway and Navigation Company, Wash- ington and Idaho Railroad Company v. . . .101 Davis -v. United States...............................469 Dickson v. Patterson..................................584 Dougherty v. Nevada Bank..............................171 Eldridge v. Trezevant ....... 452 First National Bank of Garnett v. Ayers . . . 660 Fitzgerald, Missouri Pacific Railway Company v. . . 556 Folsom v. United States...............................121 Fuller, United States v...............................593 v vi TABLE OF CONTENTS. Table of Cases Reported. PAGE Gettysburg Electric Railway Company, United States v. .668 Gibney, Interior Construction and Improvement Com- pany v................................................217 Gill v. United States............................... 426 Glover, New Orleans Flour Inspectors v. . . 170 Goldsby, alias Cherokee Bill, v. United States . . 70 Gregory v. Van Ee.....................................643 Haws v. Victoria Copper Alining Company . . . 303 Healey, United States v...............................136 Hickory v. United States..............................408 Hooper, Jacksonville, Mayport, Pablo Railway and Navigation Company v..................................514 In re Keasbey and Mattison Company, Petitioner . 221 In re Sanford Fork and Tool Company, Petitioner . 247 Interior Construction and Improvement Company v. Gibney................................................217 Iowa, Iowa Central Railway Company v. . . . 389 Iowa, Missouri v......................................688 Iowa Central Railway Company v. Iowa . . 389 Jacksonville, Mayport, Pablo Railway and Navigation Company v. Hooper.....................................514 Jersey City and Bergen Railroad Company v. Morgan 288 Johnson v. United States............................ 546 Keane v. Brygger......................................276 Keasbey and Mattison Company, Petitioner, In re . 221 Keegan, Central Railroad Company v.................259 Kelly, Lehigh Mining and Manufacturing Company v. 327 Kirby v. Tallmadge........................... . .379 Kirchoff, Union Mutual Life Insurance Company v. . 374 Kohl v. Lehlback......................................293 Laing v. Rigney.......................................531 Lehigh Mining and Manufacturing Company v. Kelly . 327 Lehigh Valley Railroad Company, McCarty v. . . 110 TABLE OF CONTENTS. vii Table of Cases Reported. PAGB Lehlback, Kohl v.................................... 293 Lockwood, Bartlett v..................................357 McCarty v. Lehigh Valley Railroad Company . .110 Markham v. United States..............................319 Missouri v. Iowa......................................688 Missouri Pacific Railway Company v. Fitzgerald . 556 Moore v. United States................................268 Morgan, Jersey City and Bergen Railroad Company v. 288 Nalle v. Young........................................624 Nevada Bank, Dougherty v..............................171 New Orleans Flour Inspectors v. Glover . . . 170 New York v. United States.............................59S New York, United States v.............................598 Osborn, Washington and Idaho Railroad Company v. . 103 Patterson, Dickson v..................................584 Pierce v. United States...............................355 Pool, Southern Pacific Company v......................438 Rigney, Laing v.......................................531 Sanford Fork and Tool Company, Petitioner, In re . 247 Say ward, United States v.............................493 Schoolfield, Bamberger v. ..... 149 Sewall, Van Wagenen v.................................369 Sioux City and St. Paul Railroad Company v. United States . . .. , , , , # ßgß Southern Pacific Company v. Pool......................438 Spalding v. Chandler ....... 394 Streep v. United States...............................128 Tallmadge, Kirby v. ...... 379 Thornton, United States v.............................ß54 Tomlinson, Whitten v..................................231 viii TABLE OF CONTENTS. Table of Cases Reported. PAGE Townsend v. Vanderwerker................................171 Trezevant, Eldridge v...................................452 Union Mutual Life Insurance Company v. Kirchoff . 374 Union Pacific Railway Company and Western Union Telegraph Company, United States v. . . 1 United States, Allison v. . . . . . . 203 United States, Ballew v.................................187 United States, Carver v. . . .... 553 United States, Chappell v........................ . 499 United States, Davis v..................................468 United States, Folsom v.................................121 United States v. Fuller.................................593 United States v. Gettysburg Electric Railway Company 668 United States, Gill v...................................426 United States, Goldsby, alias Cherokee Bill, v. . . 70 United States v. Healey.................................136 United States, Hickory v................................408 United States, Johnson v................................546 United States, Markham v................................319 United States, Moore v..................................268 United States v. New York...............................598 United States, New York v...............................598 United States, Pierce v.................................355 United States -w. Say ward .............................493 United States, Sioux City and St. Paul Railroad Company v..............................................686 United States, Streep v.................................128 United States v. Thornton..............................* 654 United States v. Union Pacific Railway Company and Western Union Telegraph Company ... 1 United States v. Western Union Telegraph Company and Union Pacific Railway Company .... 53 Vanderwerker, Townsend v................................171 Van Ee, Gregory v.............................643 Van Wagenen v. Sewall...................................369 Victoria Copper Mining Company, Haws v. . . 303 TABLE OF CONTENTS. ix Table of Cases Reported. PAGE Washington and Idaho Railroad Company v. Cœur D’Alene Railway and Navigation Company . 77 Washington and Idaho Railroad Company v. Cœur D’Alene Railway and Navigation Company . . 101 Washington and Idaho Railroad Company v. Osborn . 103 Western Union Telegraph Company and Union Pacific Railway Company, United States v. 53 Whitten v. Tomlinson...............................231 Young, Nalle v.................................... 624 Appendix. I. Amendment to Rules......................693 II. Assignment to Circuits..................694 Index...........................................695 TABLE OF CASES CITED IN OPINIONS. PAGE Ableman v. Booth, 21 How. 506 299 Alford v. Montejo, 28 La. Ann. 593 638 Allen v. Hammond, 11 Pet. 63 527 Allison v. United States, 160 U. S. 203 425 Anderson v. State, 104 Ind. 467 417 Angarica®. Bayard, 127 IT. S. 251 619 Atherton v. Fowler, 96 U. S. 513 317 Atlantic & Pacific Telegraph Co. v. Union Pacific Railway, 1 McCrary, 541 45, 51 Attorney General v. Great Eastern Railway, 5 App. Cas. 473 524 Atwood v. Bearss, 47 Mich. 72 387 Aztec Mining Co. v. Ripley, 10 U. S. App. 383; 151 U. S. 79 125, 126 Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368 263, 265, 267 Bank of United States v: Dandridge, 12 Wheat. 64 522 Banks v. Manchester, 128 U. S. 244 257 Barney v. Baltimore, 6 Wall. 280 335, 349, 353 Barney v. Keokuk, 94 U. S. 324 466, 467 Barry v. Edmunds, 116 U. S. 550 353, 354 Barton v. State, 29 Ark. 68 274 Bass v. Louisiana, 34 La. Ann. 494 465 Bates v. Norcross, 14 Pick. 224 186 Bayonne, The, 159 U. S. 687 507 Belk v. Meagher, 104 U. S. 279 317 Belt, In re, 159 U. S. 95 243 Bergemann v. Backer, 157 U. S. 655 242, 296, 297 Bernstein v. Roth, 145 Ill. 189 653 Bertie®. Walker, 1 Rob. (La.) 431 641 Bigelow, Ex parte, 113 U. S. 328 243 Billings v. United States, 23 C. Cl. J66 610 Blatch v. Archer,» Cowper, 63 383 Bonner, In re, 151 U. S. 242 202 PAGE Book v. Justice Mining Co., 58 Fed. Rep. 106 Börs v. Preston, 111 U. S. 252 Bostwick v. Beach, 103 N. Y. 414 Bostwick®. Brinkerhoff, 106 U. S. 3 Boyce v. Grundy, 3 Pet. 210 Brewer v. Jacobs, 22 Fed. Rep. 217 Brooks v. Missouri, 124 U. S. 394 Brotherton v. People, 75 N. Y. 159 Brown v. Baxter, 146 U. S. 619 Brown v. People, 20 Col. 161 Brown v. State, 52 Ala. 345 Brown v. Sutton, 129 U. S. 238 Brown v. Winnisimmet Co., 11 Allen, 326 Buchanan, In re, 158 U. S. 31 Buckley ,®. State, 62 Miss. 705 Burke v. Maxwell, 81 Penn. St. 139 Burrow v. Scammel, 19 Ch. D. 175 Burrus, In re, 136 U. S. 586 Burt ®. Merchants’ Ins. Co., 106 Mass. 356 Burt v. Panjaud, 99 U. S. 180 Buxton v. Traver, 130 U. S. 232 Caldwell ®. Texas, 137 U. S. 692 California Powder Works ®. Davis, 151 U. S. 389 Campbell ®. People, 16 Ill. 17 Campbell ®. Rankin, 99 U. S. 261 Cancemi v. People, 18 N. Y. 128 Carey v. Houston &c. Railway, 150 U. S. 170 Carite v. Trotrot, 105 U. S. 751 Carper v. Fitzgerald, 121 U. S. 87 Carroll ®. Cockerham, 38 La. Ann. 813 Central Transportation Co. v. Pullman’s Car Co., 139 U. S. 24 xii TABLE OF CASES CITED. PAGE Central Trust Co. v. McGeorge, 151 U., S. 129 220 Chafiee v. Sheen, 34 La. Ann. 684 641 Chambers v. People, 105 Ill. 409 208 Chappell v. United States, 160 U. S. 499 679 Chappell v. Water worth, 155 U. S. 102 514 Chase v. People, 40 Ill. 352 302, 490 Cherokee Nation v. Kansas Rail- way, 135 U. S. 641 510, 679. Christy v. Scott, 14 How. 282 317* City Bank, In re, 153 U. S. 246 256 City Bank v. Hunter, 152 U. S. 512 256 Claassen, In re, 140 U. S. 200 123 Claassen v. United States, 142 U. S. 140 197, 271 Clark v. Keith, 106 U. S. 464 259 Close v. Glenwood Cemetery, 107 U. S. 466 37 Coffin v. United States, 156 U. S. 432 487 Cohens v. Virginia, 6 Wheat. 264 238 Colvin v. Jacksonville, 157 U. S. 368 372, 507 Commonwealth v. Bennett, 118 Mass. 443 275 Commonwealth v. Butterick, 100 Mass. 1 275 Commonwealth«. Darn, 107 Mass. 210 74 Commonwealth v. Eddy, 7 Gray, 583 • 481 Commonwealth v. Heath, 11 Gray, 303 482 Commonwealth v. Hussey, 111 Mass. 432 272 Commonwealth v. Meaney, 151 Mass. 55 74 Commonwealth v. Moulton, 4 Gray, 39 74 Commonwealth v. Pollard, 12 Met. 225 325 Commonwealth v. Pomeroy, Wharton on Homicide, 2d ed. 753, Appx. 483 Commonwealth v. Rogers, 7 Met. (Mass.) 500 481, 485 Commonwealth v. Sawtelle, 11 Cush. 142 274 Commonwealth v. Simpson, 9 Met. 138 274 Commonwealth v. Smart, 6 Gray, 15 272 Commonwealth v. Webster, 5 Cush. .295 383,417 Commonwealth v. Wright, 107 Mass. 403 208 Commonwealth v. York, 9 Met. (Mass.) 93 481 PAGE Commonwealth Bank v. Griffith, 14 Pet. 56 238 Cook v. Hart, 146 U. S. 183 242, 245 Cook v. Rome Brick Co., 98 Ala. 409 167 Cooper v. Bigly, 13 Mich. 463 186 Coosaw Mining Co. v. South Carolina, 144 U. S. 550 52 Cornett v. Williams, 20 Wall. 226 542 Costly v. State, 19 Ga. 614 301 Courtrier v. Hastie, 5 H. L. Cas. 673 527 Crumpton v. United States, 138 U. S. 361 73 Cuddy’s Case, 131 U. S. 280 242 Cunningham v. State, 56 Miss. 269 491 Curran v. Olmstead, 101 Ala. 692 162 Davidson v. Carroll, 20 La. Ann. 199 641 Davidson v. New Orleans, 96 U. S. 97 469 Davis «.Old Colony Railroad, 131 Mass. 258 524, 526 Davis & Rankin Co. «. Barber, 157 U. S. 673 372, 507 De Arnaud «. United States, 151 U. S. 483 617 De Laveaga «. Williams, 5 Sawyer, 573 351 Denton «. Stewart, 1 Cox Ch. Cas. 258 180, 181 Detroit v. Dean, 106 U. S. 537 342 Doolan «. Carr, 125 U. S. 618 94 Doolittle v. Cook, 75 Ill. 354 186 Dorr, Ex parte, 3 How. 103 239 Dove «. State, 3 Heisk. 348 491 Dower «. Richards, 151 U. S. 658 368 Drum v. Stevens, 94 Ind. 181 185 Dubose «. Levee Commissioners, 11 La. Ann. 165 464 Dubuque &c. Railroad, Ex parte, 1 Wall. 69 259 Dunbar «. United States, 156 U. S. 185 326 Duncan, In re, 139 U. S. 449 242 Dupasseur«. Rochereau, 21 Wall. 130 643 Edwards v. Darby, 12 Wheat. 206 141 Ellison v. Moses, 95 Ala. 221 160 Entries «. State, 47 N. J. Law, 140 297 Etheridge «. Sperry, 139 U. S. 267 159 Eureka Co. v. Bailey Co., 11 Wall. 488 521 Eustis «. Bolles, 150 U. S. 361 576 Farmington «. Pillsbury, 114 U. S. 138 341 Ferguson«. Wilson, L. R.2Ch. 77 181 Finn «. United States, 123 U. S. 227 „ • 616, 618 TABLE OF CASES CITED. xiii PAGE First National Bank of Birming- ham v. Smith, 93 Ala. 97 159 Fisk v. Henarie, 142 U. S. 459 583 Fitzgerald v. Fitzgerald &c. Con- struction Co., 41 Neb. 374 577 Fleitas v. Richardson, No. 2, 147 U. S. 550 639 Florence Mining Co. v. Brown, 124 U. S. 385 197 Fonda, Ex parte, 117 U. S. 516 242 Foreman v. Hunter, 59 Iowa, 550 301 Fort Leavenworth Railroad v. Lowe, 114 U. S. 525 510 Frederich, In re, 149 IT. S. 70 198, 242 Frisbie v. Whitney, 9 Wall. 187 108 Frost®. Wenie, 157 U. S. 46 147, 609 Gaines v. Commonwealth, 50 Penn. St. 319 74 Gaines v. Rugg, 148 U. S. 228 256, 259 Galveston &c. Railway v. Gonza- les, 151 U. S. 496 230 Gardiner’s Case, 19 Land Dec. 83 144 Gates v. People, 14 Ill. 433 76 Gibbs v. Consolidated Gas Co., 130 U. S. 396 37 Gillespie v. State, 8 Yerger, 507 301 Glacier Mining Co. v. Willis, 127 U. S. 471 317 Godchaux v. Dicharry’s Succes- sion, 34 La. Ann. 579 638 Gordon v. Caldcleugh, 3 Cranch, 268 238 Grace v. American Central Ins. Co., 109 U. S. 278 337 Gracie v. Palmer, 8 Wheat. 699 220 Grant v. Raymond, 6 Pet. 218 430 Graves v. Corbin, 132 U. S. 571 582 Graves v. State, 45 N. J. Law, 203 ; 45 N. J. Law, 358 296 Greenaway v. Adams, 12 Ves. 395 180 Greenup v. Stoker, 3 Gilm. 202 302 Greenwood v. Freight Co., 105 U. S. 13 37 Greer v. State, 53 Ind. 420 208 Guiteau’s Case, 10 Fed. Rep. 161 492 Gunton®. Carroll, 101 U. S. 426 186 Gupton ®. Gupton, 47 Mo. 37 184 Guykowski v. People, 1 Scam. 476 302 Gwillim®. Stone, 14 Ves. 128 180 Hacker’s Appeal, 121 Penn. St. 192 519 Hallinger v. Davis, 146 U. S. 314 469 Hamilton Gas Light Co. v. Hamil- ton City, 146 U. S. 258 37 Hardin ®. Boyd, 113 U. S. 756 259 Hardin v. Jordan, 140 U. S. 372 468 Harriman, The, 9 Wall. 161 528 Harris v. Elliott, 10 Pet. 25 510 Harris v. McIntyre, 118 Ill. 275 386 PAGE Hartog ®. Memory, 116 U. S. 588 353 Hiatt v. Williams, 72 Mo. 214 184 Hickory v. United States, 151 U. S. 303 409 Hicks ®. United States, 150 U. S. 442 207 Hill ®. People, 26 Mich. 496 76 Hill ®. United States, 149 U. S. 593 514 Hill v. Yates, 12 East, 229 301 Hinckley ®. Morton, 103 U. S. 764 256 Hodges v. Coleman, 76 Ala. 103 163 Hohorst, In re, 150 U. S. 653 229 Hollingsworth ®. Duane, Wall. C. C. 147; 8. C. 4 Dall. 353 300 Holloway v. Queen, 17 Q. B. 317 198 Holyoke Co. ®. Lyman, 15 Wall. 500 37 Hopps ®. People, 31 III. 385 490 Hopt v. Utah, 110 U. S. 574 357 Horner v. United States, 143 U. S. 570 509 Houston v. Moore, 3 Wheat. 433 378 Howard Ins. Co. ®. Halsey, 8 N. Y. 271 186 Hudson v. Parker, 156 U. S. 277 202 Hughes ®. United States, 4 Wall. 232 384 Hume ®. Bowie, 148 U. S. 245 378 Hurst’s Lessee®. McNeil, 1 Wash. C. C. 70 332 Idaho &c. Improvement Co. ®. Bradbury,132 U. S. 509 313 Idlehart v. Crane, 42 Ill. 261 186 Indianapolis &c. Railroad ®. Horst, 93 U. S. 291 514 Interior Construction Co. ®. Gibney, 160 U. S. 217 229, 507 Iowa Loan & Trust Co. v. King, 58 Iowa, 598 386 Isaacs v. United States, 159 U. S. 487 72 Israel v. Arthur, 152 U. S. 355 368 James v. Brown, 11 Mich. 25 186 Jamison v. People, 145 Ill. 357 418 Johnson v. Keith, 117 U. S. 199 378 Johnston®. Jones, 1 Black, 209 74 Jones v. League, 18 How. 76 334 Jones v. Simpson, 116 U. S. 609 163 Jones v. United States, 96 U. S. 24 528 Jugiro, In re, 140 U. S. 291 242 Juryman’s Case, 12 East, 231, n. 301 Kansas & Arkansas Valley Rail- . way v. Waters, 70 Fed. Rep. 28 267 Kempshall ®. Stone, 5 Johns. Ch. 193 181 Ker v. People, 110 Ill. 627 273 Keyes v. Eureka Mining Co., 158 Ü. S. 150 432 King ®. Dowlin, 5 T. R. 311 324, 325 xiv TABLE OF CASES CITED. PAGE Kinnier v. Kinnier, 45 N. Y. 535 543 Knagg’s Case, 9 Land Dec. 49 143 Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 41 92 Kohl v. United States, 91 U. S. 367 510, 513, 679 Lambert v. Barrett, 157 U. S. 697 244 Landes v. Brandt, 10 How. 348 384 Lane & Bodley Co. v. Locke, 150 U. S. 193 432 Lea v. Polk County Copper Co., 21 How. 493 384 Leeds v. Marine Ins. Co., 2 Wheat. 380 ¿57 Leeper v. Texas, 139 U. S. 462 393 Lehigh Co., In re, 156 U. S. 322 219, 372, 507 Leighton v. People, 88 N. Y. 117 74 Lindley v. Martindale, 78 Iowa, 379 386 Little v. Giles, 118 U. S. 596 342 Lodge v. Twell, 135 U. S. 232 378 Logg v. People, 92 Ill. 598 76 Loney, In re, 134 U. S. 372 241 Louisville &c. Railroad v. Letson, 2 How. 497 345 Louisville Gas Co. v. Citizens’ Gas Co., 115 U. S. 683 37 Louisville Water Co. v. Clark, 143 U. S. 1 37 Lovell v. Cragin, 136 U. S. 130 641 Lowenthal v. State, 32 Ala. 589 272 Lower v. Chicago, Burlington &c. Railway, 59 Iowa, 563 100 Ludeling v. Chaffe, 143 U. S. 301 393 Luxton v. North River Bridge Co., 147 U. S. 337 507, 510, 513 Lyde v. Eastern Bengal Railway, 36 Beav. 10 525 McAleer v. United States, 150 U. S. 424 432, 435 McCann®. United States,2 Wyoming, 274 270 McClurg v. Kingsland, 1 How. 202 431, 434 McCormick Co. v. Walthers, 134 U. S. 41 229 McCulloch v. Maryland, 4 Wheat. 316 681 McDonald v. Smalley, 1 Pet. 620 332, 347 McDonough v. O’Niel, 113 Mass. 92 383 McGourkey v. Toledo &c. Rail- way, 146 U. S. 536 378 McKane v. Durston, 153 U. S. 684 297 McLean v. Clapp, 141 U. S. 429 384 McNaghten’s Case, 10 Cl. & Fin. ■ 200 479 Mammoth Mining Co. v. Salt Lake Machine Co., 151 U. S. 447 313 PAGE Marine Ins. Co. v. Hodgson, 6 Cranch, 206 259 Marshall v. Baltimore & Ohio Railroad, 16 How. 314 352 Martin v. Hunter, 1 Wheat. 304 238 Mason v. Pewabic Co., 153 U. S. 361 256 Mattox v. United States, 146 U. S. 140 313, 555 Maxwell’s Lessee v. Levy, 2 Dall. 381 331 Maynard v. Hecht, 151 U. S. 324 372, 507 Meagher v. Minnesota Thresher Mfg. Co., 145 U. S. 608 378 Mercantile Bank v. New York, 121 U. S. 138 666, 667 Mexican Central Railway v. Pink- ney, 149 U. S. 194 ' 514 Miller v. State, 15 Wall. 478 37 Mills v. Green, 159 U. S. 651 170 Missouri v. Andriano, 138 U. S. 496 238, 293 Missouri v. Lewis, 101 U. S. 22 469 Missouri, Kansas &c. Railwav v. Roberts, 152 U. S. 114 405, 407 Monongahela Navigation Co. v. United States, 148 U. S. 312 510, 685 Montgomery v. Hernandez, 12 Wheat. 129 238 Moore v. United States, 150 U. S. 57 73, 77 Moran v. Hagerman, 151 U. S« 329 372, 507 Morey v. Lockhart, 123 U. S. 56 581 Morgan v. Louisiana, 118 U. S. 455 361 Morris v. Gilmer, 129 U. S. 315 340 Morris & Essex Railroad v. Blair, 9 N. J. Eq. 635 100 Mundy ».’Jolliffe, 5 My. & Cr. 167 184 Murray v. McNealy, 86 Ala. 234 164 Nachman®. LeBlanc, 28 La. Ann. 345 641 Nashua &c. Railroad v. Boston &c. Railroad, 5 U. S. App. 97 2Ö6 Neagle, In re, 135 U. S. 1 241 Neale v. Neales, 9 Wall. 1 183, 259 New Brighton Railroad v. Pitts- burg Railroad, 105 Penn. St. 14 99 New England Ins. Co. v. Wood- worth, 111 U. S. 138 228 New York v. Eno, 155 U. S. 89 241, 242 N. Y. & Maryland Railroad v. Winans, 17 How. 30 524 N. Y. & N. E. Railroad ®. Bristol, 151 U. S. 556 37 Nicolson v. Citizens’ Bank, 27 La. Ann. 369 642 TABLE OF CASES CITED. xv PAGE Nishimura Ekiu v. United States, 142 U. S. 651 509 North Noonday Mining Co. v. Orient Mining Co., 1 Fed. Rep. 522 318 Northern Pacific Railroad v. Ham- bly, 154 U. S. 349 265, 267 Noyes v. Hall, 97 U. S. 34 384 O’Brien v. American Dredging Co., 53 N. J. Law, 291 265 O’Connell v. People, 87 N. Y. 377 489 Oelrichs v. Spain, 15 Wall. 211 51 Ohio &c. Railroad v. Wheeler, 1 Black, 286 ‘ 345 Organ’s Case, 20 Land Dec. 406 145 Packer v. Bird, 137 U. S. 661 467 Patterson v, Patterson, 13 Johns. 379 184 Pearce v. Texas, 155 U. S. 311 245 Peck v. School District, 21 Wis. 516 52 Pennock v. Dialogue, 2 Pet. 1 430 Pennsylvania Co., In re, 137 U. S. 451 581,583 Pennsylvania Railroad v. Loco- motive Truck Co., 110 U. S. 490 118 Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1 42 People v. Allen, 5 Denio, 76 272 People v. Beach, 87 N. Y. 508 193 People v. Bogart, 36 Cal. 245 274 People v. Cox, 40 Cal. 275 274 People v. Forsythe, 65 Cal. 101 417 People v. Garbutt, 17 Mich. 9 491 People v. McCann, 16 N. Y. 58 488 People v. McKinney, 10 Mich. 54 275 People v. Powell, 87 Cal. 348. 302 People v. Scoggins, 37 Cal. 676 215 People v. Sherman, 10 Wend. 298 274 People v. Stanley, 47 Cal. 113 417 People v. Tomlinson, 66 Cal. 344 272 People v. Treadwell, 69 Cal. 226 275 People v. Weaver, 100 U. S. 539 664 People v. Wilson, 55 Mich. 506 74 Pepke v. Cronan, 155 U. S. 100 242 Perkins v. Fourniquet, 14 How. 313 255 Peters v. Bain, 133 U. S. 670 159 Phelan v. Brady, 119 N. Y. 587 388 Pillow v. Roberts, 13 How. 472 518, 519 Pittsburgh &c. Railway v. Keo- kuk &c. Bridge Co., 131 U. S. 371 522 Plake v. State, 121 Ind. 433 492 Pointer v. United States, 151 U. S. 396 356 Pollak v. Searcy, 84 Ala. 259 163 Pollock v. Meyer, 96 Ala. 172 159 PAG® Postal Telegraph Co. v. Lathrop, 131 Ill. 575 653 Potter v. N. Y. Central &c. Railroad, 136 N. Y. 77 267 Price v. Indseth, 106 U. S. 546 518 Queen v. Hepburn, 7 Cranch, 290 301 Railroad Co. v. Wiswall, 23 Wall. 507 580 Rankin v. Coar, 46 N. J. Eq. 566 387 Real v. Hollister, 20 Neb. 112 577 Reese's Case, 10 Land Dec. 541 143 Reggel, Ex parte, 114 U. S. 642 245 Regina v. Belaney, Wills on Cir- cumstantial Evidence, 70 418 Regina v. Layton, 4 Cox C. C. 149 479 Regina v. Steele, 12 Cox C. C. 168 555 Regina v. Stokes, 3 Car. & K. 185 479 Removal Cases, 100 U. S. 457 582 Rex v. Bakewell, Russ. & Ry. 35 274 Rex v. Bourne, 7 Ad. & El. 58 198,199 Rex v. Fowler, 5 Car. & P. 592 274 Rex v. Furneaux, Russ. & Ry. 335 274 Rex v. Grove, 1 Moody Cr. Cas. 447 275 Rex v. Prince. 2 Car. & P. 517 274 Rex v. Snowley, 4 Car. & P. 390 274 Rex v. Thorley, 1 Mood. C. C. 343 274 Reynolds». Crawfordsville Bank, 112 U. S. 405 257 Reynolds v. United States, 98 U. S. 145 425 Rice v. Sanger, 144 U. S. 197 378 Richardson v. Stringfellow, 100 Ala. 416 164 Rigney v. Rigney, 127 N. Y. 408 540 Robb v. Connolly, 111 U. S. 624 245, 583 Robberts v. State, 68 Ala. 156 215 Roberts v. Reilly, 116 U. S. 80 134,245 Robertson v. Downing, 127 U. S. 607 141 Roots v. Shields, 1 Wool worth, 340 402 Roswald v. Hobble, 85 Ala. 73 163 Rouse v. Letcher, 156 U. S; 47 645 Royall, Ex parte, 117 U. S. 241 240, 241, 242 Ruch v. New Orleans, 43 La. Ann. 275 465 Russell v. Place, 94 U. S. 606 120 Ryan v. People, 79 N. Y. 593 417 St. Louis & San Francisco Rail- way v. McBride, 141 U. S. 127 220 Scammon v. Kimball, 92 U. S. 362 197 Schillinger v. United States, 155 U. S. 163 549 Schinkel v. Hanewinkel, 19 La. Ann. 260 641 Schollenberger, Ex parte, 96 U. S. 369 220, 228 xvi TABLE OF CASES CITED. PAGE Sexton v. Chicago, 107 Ill. 323 653 Seymour v. Freer, 8 Wall. 202 179 Shaw v. Cooper, 7 Pet. 292 430 Shaw v. Quincy Mining Co., 145 U. S. 444 228, 229 Shields v. Coleman, 157 U. S. 168 219, 372, 373, 508 Shively v. Bowlby, 152 U. S. 1 468 Shoemaker v. United States, 147 U. S. 282 684, 685 Shute v. Keyser, 149 U. S. 649 125 Sibbald v. United States, 12 Pet. 488 255, 256, 259 Siller v. Cooper, 4 Bibb, 90 301 Simmons Creek Coal Co. v. Doran, 142 U. S. 417 384 Sinking Fund Cases, 99 U. S. 700 33, 37, 67 Sioux City Street Railway v. Sioux City, 138 U. S. 98 37 Smith v. Kernochen, 7 How. 198 QQQ QÄQ QKQ Smith v. Kraft, 123 U. S. 436 ’ 164 Smith v. Lyon, 133 U. S. 315 220, 583 Smith v. McWaters, 22 La. Ann. 431 641 Solomons v. United States, 137 U. S. 342 431, 434, 435, 436 Southern Express Co. v. Todd, 12 U. S. App. 351 220 Southern Pacific Co. v. Denton, 146 U. S. 202 220, 228, 229, 514 Sparf v. United States, 156 U. S. 51 357 Spies v. Illinois, 123 U. S. 131 394 Spring Valley Water Works Co. v. Schottler, 110 U. S. 347 37 Starr v. United States, 153 U. S. 614 422, 425 State v. Bartlett, 43 N. H. 224 491 State v. Beeder, 44 La. Ann. 1007 301 State v. Brooks, 92 Mo. 542 417 State v. Bunger, 14 La. Ann. 461 301 State v. Carrick, 16 Nev. 120 275 State v. Cook, 30 Kas. 82 76 State v. Gee, 85 Mo. 647 417 State v. Gillick, 10 Iowa, 98 76 State v. Graves, 19 Md. 351 512 State v. Hayward, 1 Nott & Mc- Cord, 546 325 State v. Huck, 23 Neb. 309 76 State v. Jackson, 27 Kas. 581 301 State v. Johnson, 16 Nevada, 36 208 State v. Munch, 22 Minn. 67 275 State v. Patrick, 3 Jones (N. C.), 443 301 State v. Ring, 29 Minn. 78 275 State v. Ruthven, 58 Iowa, 121 76 State v. Smith, 13 Kas. 274 275 State v. Spencer, 1 Zabr. 196 483 PAGE State v. Stimson, 4 Zabr. (24 N. J. Law) 9 272 State v. Thompson, 42 Ark. 517 274 State v. Thompson, 32 La. Ann. 796 275 State v. Tilghman, 11 Ired. Law, 513 555 State v. Ward, 48 Ark. 36 274 Steuart v. Baltimore, 7 Md. 500 512 Stewart v. Salamon, 94 U. S. 434 ; 97 U. S. 361 259 Stockmeyer v. Tobin, 139 U. S. 176 637 Stokes v. People, 53 N. Y. 164 215 Stone v. South Carolina, 117 U. S. 430 582 Strickland v. Gay, 16 So. Rep. 77 162 Strickland v. Turner, 7 Exch. 208 527 Stringfellow v. Cain, 99 U. S. 610 311, 313, 315 Sullivan v. O’Neal, 66 Tex. 433 183 Supervisors v. Kennicott, 94 U. S. 498 256 Sutton v. Hayden, 62 Mo. 101 184 Swan v. People, 98 Ill. 610 417 Swisher v. Commonwealth, 26 Gratt. 963 555 Texas & Pacific Railway v. Ander- son, 149 U. S. 237 255, 259 Texas & Pacific Railway v. Saun- ders, 151 U. S. 105 220 Texas & Pacific Railway v. Volk, 151 U. S. 73 77 Thomas v. Kennedy, 24 Iowa, 397 385 Thomas v. Railroad Co., 101 U. S. 71 524 Thompson v. United States, 155 U. S. 271 216 Tide Water Canal Co. v. Archer, 9 Gill & Johns. 479 512 Tilton’s Case, 8 Land Dec. 368 142 Titus v. State, 49 N. J. Law, 36 296 Todd v. Gee, 17 Ves. 273 181 Toland v. Sprague, 12 Pet. 300 220 Tomlinson v. Jessup, 15 Wall. 454 37,50 Townsend v. Little, 109 U. S. 504 384 Twiss v. George, 33 Mich. 253 184 Union National Bank v. Bank of Kansas City, 136 U. S. 233 159 Union Pacific Railway«. McDon- ald, 152 U. S. 262 440 United States, In re, 96 N. Y. 227 510 United States v. Alger, 151 U. S. 362 658 United States v. Bornemann, 36 Fed. Rep. 257 275 United States v. Brewer, 139 U. S. 278 197 TABLE OF CASES CITED. xvii PAGE United States v. Carli, 105 U. S. 611 270 United States v. Carpenter, 111 U. S. 347 404, 405 United States v. Cook, 17 Wall. 168 270 United States v. Cruikshank, 92 U. S. 542 270 I United States v. Gale, 109 U. S. 65 302 United States v. Hopewell, 5 U. S. App. 137 513 United States v. Hufimaster, 38 Fed. Rep. 81 494 United States v. Jahn, 155 U. S. 109 509, 513 United States v. Jones, 109 U. S. 513 510 United States v. Lippitt, 100 U. S. 663 617 United States v. Mooney, 116 U. S. 104 230 United States v. North Carolina, 136 U. S. 211 619 United States v. North way, 120 U. S. 327 270 United States v. O’Brian, 3 Dillon, 381 135 United States v. Philbrick, 120 i U. S. 52 141 United States v. Rauscher, 119 U. S. 407 135 United States «. Smith, 4 Day, 121 134 United States v. Union Pacific Railway, 160 U. S. 1 54, 59 Upshur County v. Rich, 135 U. S. 467 513 Utica & Deer Park Bridge Co. v. Iron Commissioners, 101 Ill. 518 653 Van Wagenen v. Sewall, 160 U. S. 369 507 Veatch v. State, 56 Ind. 584 208 Voorhees v. Bank of United States, 10 Pet. 449 543 Walker v. People, 88 N. Y. 81 489 Walker v. Sauvinet, 92 U. S. 90 469 Ware v. Hamilton Shoe Co., 92 Ala. 145 167 PAGE Warren v. Warren, 105 Ill. 568 184 Washington & Georgetown Rail- road, In re, 140 U. S. 91 256, 259 Washington & Idaho Railroad«. Cœur d’Alene Railway, 160 U. S. 77 103 Wassum v. Feeney, 121 Mass. 93 301 Watson v. Bondurant, 21 Wall. 123 643 Watson v. Mahan, 20 Ind. 223 184 Watson v. Sutherland, 5 Wall. 74 51 Webb v. State, 29 O. St. 351 74 Werner v. Charleston, 151 U. S. 360 378 West v. Brashear, 14 Pet. 51 256 Western National Bank v. Arm- strong, 152 U. S. 346 653 Western Union Tel. Co. v. Union Pacific Railway, 3 Fed. Rep, 423 51 Western Union Tel. Co. v. Union Pacific Railway, 3 Fed. Rep. 721 ; S. C. 1 McCrary, 581 30, 51 Wharton’s Case, Yelv. 24 301 Wheeler’s Case, 9 Land Dec. 271 143 White v. Cotzhausen, 129 U. S. 329 159 Whitsitt v. Trustees Presbyterian Church, 110 Ill. 125 184 Whitten v. Tomlinson, 160 U. S. 231 296 Wiggins v. People, 93 U. S. 465 215 Wildenhus’s Case, 120 U. S. 1 242 Williams v. Evans, L. R. 19 Eq. 547 184 Williams v. Nottawa, 104 U. S. 209 340 Williams’s Case, 4 Day, 125 134 Wills v. Stradling, 3 Ves. Jr. 378 184 Wilson, In re, 140 U. S. 575 244 Wood, In re, 140 U. S. 278 242, 244, 303 Wood v. Brady, 150 U. S. 18 171 Wood v. United States, 16 Pet. 342 74 Wylie v. Coxe, 15 How. 415 179 Yosemite Valley Case, 15 Wall. 77 108 Young ». Dumas, 39 Ala. 60 164 Zenor v. Parish of Concordia, 7 La. Ann. 150 464 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1789, Sept. 24, 1 Stat. 73, c. 20 198, 199, 238, 239, 494, 496 1790, April 30, 1 Stat. 112, c. 9 135, 324 1793, Feb. 12, 1 Stat. 302, c. 7... 135 1812, Jan. 11, 2 Stat. 671, c. 14.. 657 1813, Jan. 2, 2 Stat. 789, c. 6.... 598 1820, April 24, 3 Stat. 566, c. 51.. 137 1833, Mar. 2, 4 Stat. 634, c. 57... 239 1841, Sept. 4, 5 Stat. 453, c. 16 137, 138, 402, 407 1842, Aug. 29, 5 Stat. 539, c. 257 239 1847, Mar. 1,9 Stat. 146, c. 32 396,405 1850, Sept. 20, 9 Stat. 466, c. 61.. 138 1850, Sept. 26, 9 Stat. 469, c. 71 398, 399, 404, 406 1852, June 10, 10 Stat. 8, c. 45... 138 1852, Aug. 26, 10 Stat. 35, c. 92 399, 406 1853, Feb. 9,10 Stat. 155, c. 59.. 138 1853, Mar. 3, 10 Stat. 244, c. 143 138 1854, July 17, 10 Stat. 305, c. 84 285, 287 1856, May 15, 11 Stat. 9, c. 28... 138 1856, May 17, 11 Stat. 15, c. 31.. 138 1856, June 3, 11 Stat. 17, c. 41... 138 1856, June 3, 11 Stat. 18, c. 42... 138 1856, June 3, 11 Stat. 20, c. 43... 138 1856, June 3, 11 Stat. 21, c. 44... 138 1856, Aug. 11, 11 Stat. 30, c. 83.. 138 1857, Mar. 3, 11 Stat. 195, c. 99.. 138 1860, June 16, 12 Stat. 41, c. 137 43, 44, 59 1861, July 24, 12 Stat. 272, c. 13.. 595 1861, July 27, 12 Stat. 276, c. 21 600, 605, 606, 620, 621 1862, July 1, 12 Stat. 489, c. 120 3,6, 12, 20, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 42, 43, 46, 47, 49, 50, 54, 55, 58, 59, 60, 67 1863, Mar. 3, 12 Stat. 765, c. 92 616, 618, 619 1863, Mar. 3, 12 Stat. 772, c. 98.. 138 1864, Mar. 14, 13 Stat. 28, c. 31.. 287 PAGE 1864, May 5, 13 Stat. 66, c. 80... 138 1864, May 12, 13 Stat. 72, c. 84.. 138 1864, July 2, 13 Stat 356, c. 216 3, 6, 25, 26, 27, 28, 33, 35, 38, 43, 56, 57, 58, 67 1864, July 2, 13 Stat. 365, c. 217 139 1864, July 2, 13 Stat. 373, c. 220 29, 31, 37, 42, 60 1865, Mar. 3, 13 Stat. 526, c. 105 139 1865, Mar. 3, 13 Stat. 539, c. 124 595 1866, July 4, 14 Stat. 83, c. 165.. 139 1866, July 4, 14 Stat. 87, c. 168.. 139 1866, July 13, 14 Stat. 94, c. 182.. 139 1866, July 23, 14 Stat. 210, c. 212 139 1866, July 24, 14 Stat. 221, c. 230 40, 41, 42, 43, 44, 49, 61, 62 1866, July 25, 14 Stat. 236, e. 241 139 1866, July 25, 14 Stat. 239, c. 242 139 1866, July 27, 14 Stat. 292, c. 278 137 1867, Feb. 5, 14 Stat. 386, c. 28 238, 239 1867, Mar. 2, 14 Stat. 548, c. 189 139 1868, June 25,15 Stat. 75, c. 71.. 606 1869, Mar. 3,15 Stat. 324, c. 127.. 58 1870, May 4, 16 Stat. 94, c. 69... 139 1870, July 15, 16 Stat. 321, c. 294 595, 596 1872, June 1, 17 Stat. 196, c. 255 199 1872, June 8, 17 Stat. 308, c. 335 40 1873, Mar. 3, 17 Stat. 566, c. 234 195, 196 1874, April 7, 18 Stat. 27, c. 80.. 312 1874, June 20, 18 Stat. Ill, e. 331 23, 28 1875, Mar. 3, 18 Stat. 470, c. 137 227, 228, 230, 231, 339, 340, 341, 342, 353, 495, 496, 497, 580 1875, Mar. 3, 18 Stat. 479, c. 144 269 1875, Mar. 3, 18 Stat. 482, c. 152 94, 95, 107, 108, 109, 575 1877, Feb. 27, 19 Stat. 240, c. 69 656 1877, Mar. 3, 19 Stat. 377, c. 107 13 6, 137, 139, 141, 142, 143, 145, 146,. 147, 148, 149 xix. XX TABLE OF STATUTES CITED. PAGE 1878, May 7, 20 Stat. 56, c. 96 57, 67, 69 1879, Mar. 3, 20 Stat. 354, c. 176 200 1880, May 14, 21 Stat. 140, c. 89.. 286 1881, Mar. 3, 21 Stat. 502, c. 138 226 , 227, 228, 230, 231 1882, July 25, 22 Stat. 174, c. 349 322 1883, Mar. 3, 22 Stat. 485, c. 116 605, 608, 613 1884, July 4, 23 Stat. 98, c. 181 195, 196 1885, Mar. 3, 23 Stat. 362, c. 341 550, 551 1885, Mar. 3, 23 Stat. 437, C. 353 244 1885, Mar. 3, 23 Stat. 443, c. 355 125 1887, Mar. 3, 24 Stat. 505, c. 359 605, 610, 616 1887, Mar. 3, 24 Stat. 552, c. 373 219, 228, 340, 496, 497, 580, 581, 583 1888, Aug. 1, 25 Stat. 357, c. 728 511, 514 1888, Aug. 7, 25 Stat. 382, c. 772 3, 4, 6, 20, 34, 35, 36, 38, 48, 50. 51, 53 1888, Aug. 13, 25 Stat. 433, e. 866 219, 220, 228, 229, 231, 340, 496, 498, 580, 581 1889, Feb. 6, 25 Stat. 655, c. 113 201 1889, Mar. 1, 25 Stat. 784, c. 323 124 1890, May 2, 26 Stat. 81, c. 182.. 124 1890, July 3, 26 Stat. 215, c. 356.. 90 1891, Mar. 3, 26 Stat. 826, c. 517 124, 125, 201, 202, 219, 372, 373, 494, 507, 645 1891, Mar. 3, 26 Stat. 851, c. 538 549, 552 1891, Mar. 3, 26 Stat. 1083, c. 548 322, 323 1891, Mar. 3, 26 Stat. 1095, c. 561 143, 144, 145, 147, 148, 149 1893, Mar. 3, 27 Stat. 572, c. 208 679, 684 1894, Aug. 1, 28 Stat. 212, c. 176 596, 597, 598 1894, Aug. 1, 28 Stat. 215, c. 179.. 658 1894, Aug. 18, 28 Stat. 372, c. 301 679, 684 Revised Statutes. § 563 ............................ 495 § 566 .......................... 513 § 629........................ 230, 495 § 648 ............................ 513 § 701 ........................... 200 § 702 ............................ 125 (B.) Statutes of the Alabama. 1887, Laws of 1886-7, p. 102 167 Code, § 1737...................... 162 PAGE Revised Statutes (coni.) § 709 .........200, 238, 292, 582, 583 § 711............................ 230 § 723 ........................... 179 §§ 751, 752 ..................240, 244 § 753........................239, 240 § 754........................240, 242 § 755 ........................... 240 § 761 ........................... 240 § 764 ........................... 244 § 878 ............................ 73 § 882 ........................... 191 § 914............................ 512 §§ 916-918........................ 256 § 1025.......................276, 326 § 1033 ........................... 76 § 1045 ..................133, 134, 135 § 1063 600, 606,607, 608, 609, 610, 612, 613, 614, 615, 616 §§ 1064, 1065..................... 607 § 1069 .......................... 616 § 1091........................... 619 § 1282 .......................... 658 § 1284 .......................... 658 § 1290 ..................656, 657, 659 § 1405.......................596, 597 § 1406 ......................... 596 § 1408 .......................... 596 § 1410........................... 596 § 1556 .......................... 596 § 1569.......................596, 597 § 1579.................. 594, 596, 597 § 1585 .......................... 595 § 2156 .......................... 551 § 2320.......................314, 315 § 2324.......................318, 319 § 2357..139, 141, 142,145, 146, 147 § 2880.......................... 366 § 3964 ........................... 40 § 4658 .......................... 511 § 4660 ......................... 511 § 4744 .......................... 322 § 4745 .......................... 195 § 4783 .......................... 196 § 4792.............361, 363, 364, 366 § 4793 .......................... 366 § 5209 .......................... 123 § 5219 .......................... 664 §§ 5263, 5264 ................40, 61 §§ 5265-5268..................40, 62 § 5278.......................134, 135 § 5308 .......................... 495 § 5392 .......................... 323 § 5396.......................323, 326 § 5485 .......................... 196 »TATES AND TERRITORIES. Connecticut. Gen. Stat. § 962 ................ 246 TABLE OF STATUTES CITED. xxi PAGE Florida. McClell. Dig., p. 276, § 10... 523 Illinois. Rev. Stat. c. 110, § 87 .. .653, 654 § 89 ...... 653 Kansas. Gen. Stat. § 6847.......... 664 § 6851.......... 666 Louisiana. 1870, Sess. Laws Ex. Sess. 1870, 156, No. 71................. 170 1879, Feb. 14, Laws of 1879, 51, No. 33............... 461 1892, June 28, Acts of 1892, 34, No. 23............... 170 Civil Code, art. 661...........463, 464 art. 1790 ........ 642 art. 2130 ........ 641 arts. 2207,2208... 641 art. 2332......... 639 arts. 2334,2335... 639 art. 2337......... 639 art. 2376......... 639 art. 2379.....639, 642 art. 2383 ........ 639 art. 2390 .... 640, 642 art. 2428......... 640 art. 2399 ........ 639 art. 2446 ........ 642 art. 2601-2621... 637 art. 3287 ........ 639 arts. 3311, 3312 .. 639 art. 3319......... 639 arts.3342-3344... 640 art. 3345 640, 641, 642 arts. 3346-3349 640, 641 PAGE Louisiana (cont.) Code of Frac., art. 663......... 637 art. 679.... 638 arts. 683, 684 638 Maryland. 1874, Acts of 1874, c. 395 ... 509 Pub. Gen. Laws 1888, vol. 2, art. 96 .............. 509 Michigan. 1849, April 2, Laws of 1849, No. 255, p. 336 ...... 398 Nebraska. Comp. Stat. 1895, §§ 224, 225 578 New Jersey. 1795, Mar. 6, Paterson’s Laws, 162 .................. 297 1797, Nov. 10, Acts 22d Gen. Ass., 1797, p. 250............ 300 1878, Mar. 12, Supp. Rev. 209 297 1881, Mar. 9, Supp. Rev. 210 298 1894, May 9, Laws of 1894, p. 246 ............... 298 Rev. N. J., 283 ................ 297 532 ............ 300 New York. 1861, April 15, Laws of 1861, p. 634, c. 277 ....... 601, 602 1862, April 12, Laws of 1862, p. 364, c. 192 ....... 602 Pennsylvania. 1874, April 29,1 Pruden’s Dig., p. 335 ............. 344 Utah. 2 Comp. Law, § 3241............. 313 Washington. 1861, Jan. 11, Laws of 1860, p. 16................. 285 (C.) Foreign Statutes. France. Code Napoleon, Arts. 649,650 463 Great Britain. 23 Geo. II, c. 11............. 324 Great Britain (cont.') 7 & 8 Geo. IV, c. 28 ............ 420 11 & 12 Viet., c. 78.............. 198 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1895. sr z-V UNITED STATES U^N^ACIFIC RAILWAY COMPANY AN^W^TE^N UNION TELEGRAPH COMPANY. K<^ APPEAL FROM THE ä^RCUI^ COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 334. Argued October 18,19,1894. —Decided November 18,1895. The objects which Congress sought to accomplish by the act of July 1, 1862, c. 120, 12 Stat. 489, granting a subsidy to aid in the construction of both a railroad and a telegraph line from the Missouri River to the Pacific Ocean, and by the act of July 2, 1864, c. 216, 13 Stat. 356, amendatory thereof, were the construction, the maintenance and the operation of both a railroad and a telegraph line between those two points ; the governmental aid was extended for the purpose of accomplishing all these important results ; and there is nothing in subsequent legislation to indicate a change of this purpose. The provisions in those acts permitting the railroad company to arrange with certain telegraph companies for placing their lines upon and along the route of the railroad, and its branches, did not affect the authority of Congress, under its reserved power, to require the maintenance and operation by the railroad company itself, through its own officers and employés, of a telegraph line over and along its main line and branches. vol. clx—1 2 OCTOBER TERM, 1895. Syllabus. An arrangement between the railroad company and the telegraph company, such as was permitted by, the 19th section of the act of July 1, 1862, and by the fourth section of the act of July 2, 1864, c. 220, known as the Idaho Act, could have no other effect than to relieve the railroad company from any present duty itself to construct a telegraph line to be used under the franchises granted and for the purposes indicated by Congress. No arrangement of the character indicated by Congress could have been made except in view of the possibility of the exercise by Congress of the power reserved to add to, or amend the act that permitted such arrangement. It was not competent for Congress under its reserved power to add to, alter, or amend these acts to impose upon the railroad company duties wholly foreign to the objects for which it was created or for which governmental aid was given, nor, by any alteration or amendment of those acts, destroy rights actually vested, nor disturb transactions fully consummated. With the policy of such legislation the courts have nothing to do. The provision in the act of August 7, 1888, c. 772, 25 Stat. 382, requiring all railroad and telegraph companies to which the United States have granted subsidies, to “ forthwith and henceforward, by and through their own respective corporate officers and employés, maintain and operate, for railroad, governmental, commercial and all other purposes, telegraph lines, and exercise by themselves alone all the telegraph franchises conferred upon them and obligations assumed by them under the acts making the grants,” is a valid exercise of the power reserved by Congress, Since the passage of the act of July 24, 1866, c. 230, the provisions of which were embodied in the Revised Statutes Title LXV, Telegraphs, no railroad company operating a post-road of the United States, over which interstate commerce is carried on, can bind itself, by agreement, to exclude from its roadway any telegraph company, incorporated under the laws of a State, that has accepted the provisions of that act, and desires to use such roadway for its line in such manner as will not interfere with the ordinary travel thereon. The agreement of October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company gave the telegraph company the absolute control of all telegraphic business on the routes of the railway company, and consequently tended to make the act of July 24, 1866, c. 230, 14 Stat. 221, ineffectual and was hostile to the object contemplated by Congress; and, being thus in its essential provisions invalid, it was not binding upon the railway company. The agreements of September 1, 1869, and December 14, 1871, between the Union Pacific Railroad Company and the Atlantic and Pacific Telegraph Company were void. The agreement of July 1, 1887, between the Union Pacific Railway Company and the Western Union Telegraph Company is illegal, not only to the extent it assumes to give to the telegraph company exclusive rights and advantages in respèct of the use of the way of the railroad company for UNITED STATES v. UNION PACIFIC RAILWAY. 3 Opinion of the Court. telegraph purposes, but also because, in effect, it transfers to the telegraph company the telegraphic franchise granted it by the United States, which was not permitted by the acts of Congress defining the obligations of railroad companies that had accepted the bounty of the government. While the United States might proceed by mandamus against the railway company to compel it to perform the duties imposed by its charter, it has the further right, in this suit, to ask the interposition of a court of equity to compel a cancellation of the agreements under which the telegraph company asserts rights inconsistent with the several acts of Congress, and the final decree in such a suit may require the railway company to obey the directions of Congress as given in those acts. This suit was commenced by the United States in the Circuit Court for the District of Nebraska. A decree was there made giving the plaintiff the relief it asked for. 50 Fed. Rep. 28. An appeal was taken to the Circuit Court of Appeals for the Eighth Circuit, where the decree of the Circuit Court was reversed. 19 U. S. App. 531. From that decree the United States took this appeal. The case is stated in the opinion of the court. Mr. Solicitor General Maxwell for appellant. A/a Hush Taggart for the Western Union Telegraph Company, appellee. Mr. John F. Dillon, for the Union Pacific Railway Company, appellee. Mr. John M. Thurston and Mr. Jeremiah M. Wilson were on his brief. Mb. Justice Harlan delivered the opinion of the court. This suit was brought by the United States against the Union Pacific Railway Company and the Western Union Telegraph Company under the authority of the act of Congress of August 7, 1888, c. 772, 25 Stat. 382, supplementary to the act commonly known as the Pacific Railroad act of July 1, 1862, c. 120, 12 Stat. 489, and to the act of July 2, 1864, c. 216, 13 Stat. 356, and other acts amendatory of the act of 1862. By the first section of the above act of 1888, it is provided that all railroad and telegraph companies to which the United States have granted any subsidy in lands or bonds or loan of 4 OCTOBER TERM, 1895. Opinion of the Court. credit for the construction of either railroad or telegraph lines, and which, by the acts incorporating them, or by any amendatory or supplementary act, were required to construct, maintain, or operate telegraph lines, and all companies engaged in operating such railroad or telegraph lines “shall forthwith and henceforward, by and through their own respective corporate officers and employés, maintain, and operate, for railroad, governmental, commercial, and all other purposes, telegraph lines, and exercise by themselves alone all the telegraph franchises conferred upon them and obligations assumed by them under the acts making the grants as aforesaid.” The second section declares that any telegraph company, having accepted the provisions of Title LXV, Telegraphs, of the Revised Statutes, which should extend its line to any station or office of a telegraph line belonging to any one of the railroad or telegraph companies referred to in the first section, shall have the right and shall be allowed “ to connect with the telegraph line of said railroad or telegraph company to which it is extended at the place where their lines may meet, for the prompt and convenient interchange of telegraph business between said companies ; and such railroad and telegraph companies, referred to in the first section of this act, shall so operate their respective telegraph lines as to afford equal facilities to all, without discrimination in favor of or against any person, company, or corporation whatever, and shall receive, deliver, and exchange business with connecting telegraph lines on equal terms, and affording equal facilities, and without discrimination for or against any one of such connecting lines ; and such exchange of business shall be on terms just and equitable.” If any railroad or telegraph company referred to in the first section, or any company operating such railroad or telegraph line, refuses or fails, in whole or in part, to maintain and operate a telegraph line as provided in the act of 1888 and the acts to which it is supplementary, “ for the use of the Government or the public, for commercial and other purposes, without discrimination,” or refuses or fails to make or continue such arrangements for the interchange of business with any connecting telegraph company, then, by the third section, application for UNITED STATES v. UNION PACIFIC RAILWAY. 5 Opinion of the Court. relief may be made to the Interstate Commerce Commission, whose duty it shall be to ascertain the facts, and prescribe such arrangement as will be proper in the particular case. The fourth section is in these words: “ In order to secure and preserve to the United States the full value and benefit of its liens upon all the telegraph lines required to be constructed by and lawfully belonging to said railroad and telegraph companies referred to in the first section of this act, and to have the same possessed, used, and operated in conformity with the provisions of this act and of the several acts to which this act is supplementary, it is hereby made the duty of the Attorney General of the United States, by proper proceedings, to prevent any unlawful interference with the rights and equities of the United States under this act, and under the acts hereinbefore mentioned, and under all acts of Congress relating to such railroads and telegraph lines, and to have legally ascertained and finally adjudicated all alleged rights of all persons and corporations whatever claiming in any manner any control or interest of any kind in any telegraph lines or property, or exclusive rights of way upon the lands of said railroad companies, or any of them, and to have all contracts and provisions of contracts set aside and annulled which have been unlawfully and beyond their powers entered into by said railroad or telegraph companies, or any of them, with any other person, company, or corporation.” The fifth section subjects to fine and imprisonment any officer or agent of a company operating its railroads and telegraph lines who refuses or fails, in such operation and use, to afford and secure equal facilities to the government and the public, or to secure to each of said connecting telegraph lines equal advantages and facilities in the interchange of business, as provided for, without any discrimination whatever for or adverse to the telegraph line of any or either of said connecting companies, or refuses to abide by or perform and carry out within a reasonable time the order or orders of the Interstate Commerce Commission. The party aggrieved may also sue the company, whose officer or agent violates the provisions of the act, for any damages thereby sustained. 6 OCTOBER TERM, 1895. Opinion of the Court. The sixth section makes it the duty of all railroads and telegraph companies to report to the Interstate Commerce Commission in relation to certain matters, and to file with that body copies of all contracts and agreements of every description between it and every other person or corporation in reference to the ownership, possession, maintenance, control, use, or operation of any telegraph lines or property over or upon its rights of way. The defendant, the Union Pacific Railway Company, is a corporation formed by the consolidation (under the authority of the above acts of Congress of July 1, 1862, c. 120, 12 Stat. 489, and July 2, 1864, 13 Stat. c. 216, 356) of the following companies: The Union Pacific Railroad Company, incorporated by the act of July 1, 1862; the Kansas Pacific Railway Company, formerly known as the Union Pacific Railway Company, Eastern Division, which latter company succeeded to the rights and powers of the Leavenworth, Pawnee and Western Railroad Company, a Kansas corporation that accepted the aid provided by the act of July 1, 1862 ; and the Denver Pacific Railway and Telegraph Company, a corporation of Colorado. The present suit proceeds on the ground that the Union Pacific Railway Company is conducting its business under certain contracts and agreements with the Western Union Telegraph Company that are not only repugnant to the provisions of the above act of 1888, but are inconsistent with the rights of the United States, and in violation of the obligations imposed upon the railway company by other acts of Congress. The relief asked was a decree annulling those contracts and agreements and compelling the railway company to maintain and operate telegraph lines on its roadways, as required by the act of 1888. By the final decree of the Circuit Court it was adjudged, among other things, that the following agreements be annulled and held for naught: An agreement of October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company ; Two agreements, one of September 1, 1869, and one of UNITED STATES v. UNION PACIFIC RAILWAY. 7 Opinion of the Court. December 14, 1871, between the Union Pacific Railroad Company and the Atlantic and Pacific Telegraph Company, the rights of the latter company having been acquired, as is claimed, by the Western Union Telegraph Company ; and, An agreement of July 1, 1881, between the Union Pacific Railway Company and the Western Union Telegraph Company. 50 Fed. Rep. 28. It will be well, at this point, to refer to the principal parts of the several agreements that were set aside and annulled by the final decree of the Circuit Court. By the agreement of October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company, the railway company agreed to pay to the telegraph company the cost of the telegraph poles that had been erected by the latter company along the railroad between Wyandotte and Fort Riley, except for such as have been already furnished and erected by said railway company, and also the cost of the wire and insulators for a telegraph line with one wire, between those points, except for such distance as the railroad company had already provided wires and insulators; to furnish and distribute along their road west of Fort Riley, as fast as the same was completed, suitable poles for a first-class telegraph line, and wires and insulators for a telegraph line with one wire; to supply and distribute suitable telegraph poles, as required from time to time ; to repairand renew the line as might be necessary; to transport, free of charge, for the telegraph company all persons engaged in and material required for the construction, reconstruction, working, repairing, and maintaining said telegraph line; and to furnish a suitable telegraph office in the depot at Wyandotte, Kansas, free of charge, and pay one-half of the salary of the operator in such office, or so much thereof as was necessary to save the telegraph company from loss at that office — such operator to be fully qualified to do the business of the railway company, and to be appointed and his salary fixed by the parties to the contract. The railway company further stipulated “ not to transport any persons engaged in or property intended for the construction or repair of any other line of telegraph along their railway, 8 OCTOBER TERM, 1895. Opinion of the Court. except at the usual and regular rates charged by said railway company for passengers and freight, nor give permission to nor make any agreement with any other telegraph company to construct or operate any telegraph line upon the lands or roadway of said railway company, without the consent in writing of the telegraph company. The above agreed to by said railway company so far as it has the right to do so.” The telegraph company agreed, upon its part, that it would erect poles, attach the insulators, and string the wire to be furnished or paid for by the railway company, as provided, as fast as each section of twenty miles of railroad was completed ; that the first wire should belong to the railway company, and be for their use exclusively after the second wire was put up, “ but no commercial or paid business shall be transmitted by the railway company from any station where the telegraph company shall have an office, without the consent of the latter; ” that if the business of the railway company should, in its opinion, require more than one wire, they might appropriate another wire, upon paying to the telegraph company the cost of such wire on the poles, the telegraph company to attach such other wire for the use of the company; that the business of the railway company of every kind, and the family, private, and social messages of its executive officers, should be transmitted without charge between all telegraph stations on the line of said roadway, and between all such stations and St. Louis, and over all other lines in Missouri, Kansas, Colorado, and New Mexico, then owned or controlled, or which might thereafter be owned or controlled, by the telegraph company, provided, so far as said lines in Colorado and New Mexico were concerned, and the road or roads of the Union Pacific Railway Company, Eastern Division, were at the time in process of construction towards Santa Fe or Denver, or both, all such business should be transmitted free of charge over all other lines then or thereafter to be owned or controlled by the telegraph company within the United States, to an amount not exceeding four thousand dollars per annum, with a rebate of one-half of regular tariff charges for all in excess of that amount; that until a second wire was put up, UNITED STATES v. UNION PACIFIC RAILWAY. 9 Opinion of the Court. both parties could use the first wire, the business of the railway company having preference; and if either wire was interrupted or required by the United States, both parties might use the other one as far as practicable, but without delay or charge to the railway company; that the telegraph company should furnish all main batteries required for the efficient working of the telegraph line provided for, and keep the line in good working order, without expense to the railway company, except for the materials which the latter had agreed to supply. Again: That “ the railway company may establish, at their own expense, as many offices as they require, and at all places where the telegraph company has no separate office the employes of the railway company shall, so long as it may not interfere with the business of said railway company, receive, transmit, and deliver such commercial or paid business as may be offered at the tariff rates of the telegraph company, provided such paid business does not amount to enough to pay the expenses of a separate telegraph office, and shall account for and pay over to the latter, monthly, the amount thereof at such rates; and concerning such business, all rules, regulations, and orders of the telegraph company applicable thereto shall be observed; but said railway company shall not be amenable in any way to said telegraph company for the acts or operations of said agents, otherwise than to remedy the difficulty in future;” that each party, at its own expense, should have the right to add as many lines as its business required; that it would perform without charge for the railway company what should be decided by competent authority to be its telegraphic obligations to the Government of the United States; and that a telegraph line should be constructed on the road of the railway company from Leavenworth to Lawrence at such time, between May 31,1867, and September 1, 1868, as that company might decide, and upon the same terms and conditions as that west of Fort Riley. By the agreement of September 1,1869, between the Atlantic and Pacific Telegraph Company and the Union Pacific Railroad Company, the railroad company, in consideration of thirty-three thousand shares of the stock of the telegraph 10 OCTOBER TERM, 1895. Opinion of the Court. company, (for an increase of whose stock the agreement made provision,) demised and leased to that telegraph company “ all its telegraph line, wires, poles, instruments, offices, and other property by it possessed appertaining to the business of telegraphing for the purpose of sending messages and doing a general telegraphic business,” to have and to hold during the whole term of the charter of the telegraph company, and any renewals thereof, subject to the rights of the United States, as set forth in the charter of the railroad company, and on condition that the telegraph company should fully perform all duties that were or might be imposed upon the railroad company by its charter or by the laws of the United States. It was further stipulated in that agreement that the telegraph company should proceed at once, as soon as arrangements were perfected for extending its line to San Francisco, to put two additional wires, fully equipped and furnished, on the poles demised along the whole length of its line; the railroad company to maintain and keep in repair such poles, wires, and equipments at its expense during the period of such demise, until from age or other cause they were required to be renewed, in which case the telegraph company should meet the cost of renewal; that the railroad company should at its own expense employ, during a period of twenty-five years, suitable persons to operate said telegraph at its own stations, other than at Omaha and such other stations as required, for the business of both parties, operators in addition to those needed by the railroad company; that the railroad company should have the right free of expense to the constant and perpetual use of two of the wires when required for its business, and the free use for its business of the whole line of. telegraph, which should then or thereafter belong to or be controlled or operated by the telegraph company, to and from all parts of the United States, for all purposes connected with the management of the road or its business; that the telegraph company should have such preferential privileges and facilities for its business as are usually granted by railroad companies in contracts of connection with telegraph companies; and that the railroad company should “afford all other telegraph com- UNITED STATES v. UNION PACIFIC RAILWAY. 11 Opinion of the Court. panics only such facilities as by law they now are or may hereafter be required to afford as common carriers or otherwise, in which shall not be included the privilege of using hand cars or of stopping trains except at regular stations, or transporting the officers or servants of such companies, except on regular passenger trains at regular rates of fare, or of transporting material for such companies or persons (other than the parties of the first part) except on regular freight trains and at the usual rates of freight, unless the facilities aforesaid, or some of them, shall be required by law to be afforded such companies or persons.” These companies entered into a supplementary agreement on the 14th day of December, 1871, by which the original contract was modified in certain particulars, that need not be set out, and which provided that for all the purposes of both the original and supplementary contract the road of the railroad company “ demised by said original contract shall be deemed and taken to terminate at the junction of the Union Pacific Railroad Company with the Central Pacific Railroad Company, as now established, which junction is at a point about five miles west of Ogden, and all the rights of the parties under said contract and supplement shall be made to conform to this modification.” The agreement between the Western Union Telegraph Company and the Union Pacific Railway Company of July 1, 1881, recites that the former corporation had acquired all the property, rights, and franchises of the Atlantic and Pacific Telegraph Company, and was in possession of and operating a separate line of poles and wires along the main line of the Union Pacific Railway Company between Omaha and Ogden ; that the parties were then, and for some time past had been, operating lines of telegraph along various roads of the railway company, under sundry contracts, thirteen in number, including the above agreements of 1866, 1869, and 1871, and made between the railway company or companies formerly in possession of lines of railroad, then controlled by and forming part of that company, and the Western Union Telegraph Company, or other telegraph companies that had become 12 OCTOBER TERM, 1895. Opinion of the Court. merged into the latter company ; and that it was desirable to terminate existing disputes, and embody the agreement of the parties in one new contract, in lieu of said existing contract. The expressed purpose of this agreement was to provide telegraph facilities for the parties, and to maintain and operate the lines of telegraph along all the railway company’s roads in the most economical manner in the interest of both parties, as well as to fulfil the obligations of the railway company to the Government of the United States and the public, in respect to the telegraphic service required by the act of July 1, 1862, and its amendments. Among other provisions of the above agreement are the following : « Third. The railway company, so far as it legally may, hereby grants and agrees to assure to the telegraph company the exclusive right of way on, along, upon, and under the line, lands, and bridges of the railway company and any extensions and branches thereof, for the construction, maintenance, operation, and use of lines of poles and wires, or either of them, or underground or other system of communication for commercial or public uses or business, with the right to put up from time to time, or cause to be put up or constructed under the provisions of this agreement, such additional wires on its own or the railway company’s poles or such additional lines of poles and wires or either as well on its bridges as on its right of way, or to construct such underground lines as the telegraph company may deem expedient, doing as little damage and causing as little inconvenience to the railway company as is practicable, and the railway company will not transport men or material for the construction or operation of a line of poles and wire or wires or underground or other system of communication in competition with the lines of the telegraph company, party hereto, except at and for the railway company’s regular local rates, nor will it furnish for any competing line any facilities or assistance that it may lawfully withhold, nor stop its trains, nor distribute material therefor at other than regular stations : Provided always, That in protecting and defending the exclusive rights UNITED STATES v. UNION PACIFIC RAILWAY. 13 Opinion of the Court. given by this contract, the telegraph company may use and proceed in the name of the railway company, but shall indemnify and save harmless the railway company from any and all damages, costs, charges, and legal expenses incurred therein or thereby. “Fourth. It is mutually understood and agreed that all of the telegraph lines and wires covered by this contract, whether belonging to or used by the telegraph company or the railway company for the purpose of this contract, as herein provided, shall form part of the general system of the telegraph company. The railway company further agrees that its employes shall transmit over the lines owned, controlled, or operated by the parties hereto, all commercial telegraph business offered at the railway company’s offices, and shall account to the telegraph company exclusively for all of such business and the receipts thereon, as provided herein. No employe of the railway company shall, while in its service, be employed by or have any connection with any other telegraph company than the telegraph company party hereto, and the telegraph company shall have the exclusive right to the occupancy of and connection with the railway company’s depots or station houses for commercial or public telegraph purposes as against any other telegraph company: Provided, That if any person or party, or any officer of the Government, tender a message for transmission over the railway telegraph lines between Council Bluffs and Ogden at any railway telegraph station between those points and require that the service be rendered by the railway company, the operator to whom the same is tendered shall receive and forward the same accordingly at rates to be fixed by the railway company to the point of destination if not beyond its own lines. If the destination of said message be beyond said railway company’s lines, the telegraph company, when receiving the same at the point at which it leaves the said railway lines, may demand the prepayment of tolls for the service of forwarding the message on its own lines: Provided, however, That the local receipts of the railway company on such messages shall be divided between the parties hereto in the same manner and subject to 14 OCTOBER TERM, 1895. Opinion of the Court. the same conditions as provided in the tenth clause of this agreement.” “ Sixth. Each party hereto shall pay one-half of the entire cost of all poles, wires, insulators, tools, and other material used for the maintenance, repair, and renewal or reconstruction of existing lines and wires along all of the railway company’s railroads, and for the construction, maintenance, repair, and renewal or reconstruction of such additional wires or lines of poles and wires as may be required for commercial or railroad telegraph purposes along said railroads, and along future branches or extensions thereof, and along new railroads constructed or acquired by the railway company, until the total number of wires shall amount to three for the exclusive use of each party hereto between Council Bluffs and Ogden, two for the exclusive use of each party hereto between Kansas City and Denver, and one for the exclusive use of each party hereto on all other portions of the railway company’s railroads, branches, and extensions. Each party hereto shall pay the entire cost of the construction, maintenance, repair, and renewal or reconstruction of wires for its exclusive use in excess of the number hereinbefore mentioned. The material of the telegraph company for additional wires to be transported free of charge by the railway company over its own lines, as hereinafter provided. The telegraph company agrees to furnish at its own expense all blanks and stationery for commercial dr other public telegraph business, and all instruments, main and local batteries, and battery material for the operation of its own and the railway company’s wires and offices. . . • “ Seventh. . . . The telegraph company agrees to furnish, free of charge, for the railroad business of the railway company, a direct wire connecting the railway company’s office in Omaha, Nebraska, with its office in Kansas City, Missouri, and with the railway company’s offices at intermediate railroad stations of the railway company along the Missouri River, including Council Bluffs; and the telegraph company will receive, transmit, and deliver, free of charge, at and from its offices at said intermediate stations of the railway company, such messages on the railroad business of the railway company UNITED STATES v. UNION PACIFIC RAILWAY. 15 Opinion of the Court. as may be offered by its agents and officers for points on the railway company’s roads, provided that the telegraph company may use said wire for the transaction of commercial or public telegraph business when not in use for railroad business. “Eighth. All messages of the officers and agents of the railway company pertaining to its railroad business may be transmitted free of charge between all telegraph stations on the lines of its various railroads over wires set apart for railroad business. . . . It is understood and agreed that the free telegraphic service herein provided for is for the transmission of messages concerning the operation and business of the railway company’s railroads, and shall not be extended to messages ordering sleeping car, parlor car, or steamer berths, or other accommodations for customers of the railway companv, the tolls on which messages should properly be chargeable to such customers. “ Ninth. The railway company agrees to transport free of charge over its railroads, upon application of the superintendent or other officer of the telegraph company, all officers of the telegraph company when travelling on its business, and all employés of the telegraph company when travelling on the telegraph company’s business connected with or pertaining to the lines or wires and offices along any of the railway company’s railroads. And the railway company further agrees to transport and distribute free of charge along the line of any and all its railroads all poles and other materials for the construction, maintenance, operation, repair, or reconstruction of the lines and wires covered by this agreement, and of such additional wires or lines of poles and wires as may be erected under and in pursuance of the provisions of this agreement. Also all material and supplies for the establishment, maintenance, and operation of the offices along said railroads, it being understood that no charge shall be made for the transportation of poles or other materials over any of the railway company’s railroads for use on any other of its railroads. “ Tenth. The telegraph company agrees to supply instruments and local batteries and blanks and stationery for commercial telegraph business, as hereinbefore provided at offices 16 OCTOBER TERM, 1895. Opinion of the Court. established and maintained by the railway company. At all telegraph stations of the railway company its employés shall receive, transmit, and deliver such commercial or public messages as may be offered, and shall render to the telegraph company monthly statements of such business and full accounts of all receipts therefrom, and the railway company shall cause all of such receipts to be paid over to the telegraph company monthly. “ As compensation to the railway company for the services herein provided for, the telegraph company agrees to pay or return to the railway company monthly one-half of the cash receipts at telegraph stations maintained and operated by and at the expense of the railway company, tolls on ocean cable messages and tolls for lines of other companies excepted, all of which shall be retained by the telegraph company, it being understood that the railway company shall not be entitled to any portion of the tolls on ocean cable messages or tolls belonging to lines of other companies or to any portion of amounts checked against other offices. . . . “ The railway company agrees that its employés shall not compete with the telegraph company’s offices in the transaction of commercial telegraph business at any point where the telegraph company may now or hereafter have an office separate from the railway company’s office, by cutting rates or by active efforts to divert business from the telegraph company.” “ Twelfth. It is further agreed that the management of the wires, the repairs of all the lines along the railway company’s railroads, and the distribution of all materials for use on said lines, shall be under the supervision and control of a competent superintendent, who shall be appointed, and paid jointly by the parties hereto, and whose salary shall be fixed by mutual agreement, and said superintendent shall be equally the servant of each of the parties hereto, and shall, as far as practicable, protect and harmonize the interest of both parties hereto in the transaction of the railroad and commercial telegraph business along the railway company’s railroads. . . . “ Thirteenth. The railway company shall have the right to the free use of any telegraphic patent rights or new discoveries or inventions that the telegraph company now owns UNITED STATES v. UNION PACIFIC RAILWAY. 17 Opinion of the Court. and uses in its general telegraph business or which it may hereafter own and use as aforesaid, so far as the same may be necessary to properly carry on the business of railread telegraphing on the line of said railroads as provided for herein. “ Fourteenth. The telegraph company hereby promises and agrees to assume and protect the railway company from the payment of all taxes levied and assessed upon the telegraph property belonging to either of the parties to this agreement. “ Fifteenth. The provisions of this agreement shall extend to all railroads and branches or extensions thereof now or hereafter owned or controlled by the railway company, provided, however, that in case the railway company shall hereafter acquire the ownership or control of any railroad, upon which the telegraph company may already have a line of telegraph in operation, the provisions of this contract shall not apply to such railroad and telegraph line without the mutual consent of the parties hereto at the time of such acquisition.” The contract of 1881 was, by its terms, to continue in force for twenty-five years, and existing contracts with other companies, and in respect to other roads, were to be deemed superseded, so long as the last contract was fully observed on the part of the railway company, but to be again in force, for the protection of the Western Union Telegraph Company, in case this contract should not be kept in good faith by the railway company for the full term of twenty-five years. By the decree of the Circuit Court it was further adjudged that the Union Pacific Railway Company “at once put an end to all relations between it and the defendant, the Western Union Telegraph Company, not equally allowed to all other persons or corporations operating, owning, or using the telegraph as a means of communication, and also at once resume possession of its offices, poles, wires, instruments, and all its other property belonging or appertaining to the business of telegraphy along such of its main and branch lines as were aided by the Government under the act of July 1, 1862, and acts amendatory and supplemental thereto, and henceforth, by and through its own corporate officers and employes, maintain and operate, for railroad, governmental, commercial, and VOL. clx—2 18 OCTOBER TERM, 1895. Opinion of the Court. other purposes, such telegraph lines and instruments, and in all ways exercise by itself alone all the telegraph franchises conferred upon it and obligations assumed by it under the several acts granting subsidies in land or bonds or loan of credit to it and to its constituent companies, or the acts amendatory of or supplemental thereto ; and in all cases where the said defendant company has not now adequate facilities to enable it to thus conduct the telegraph business and afford equal facilities to all without discrimination in favor of or against any person, company, or corporation whatever, and to receive, deliver, and exchange business with connecting telegraph lines and all companies desiring to make such connections on equal terms and afford equal facilities to all, and without discrimination for or against any one of such connecting lines and upon just and equitable terms (all of which said defendant is required and directed to at once proceed to do), then said defendant shall at once construct and provide such facilities as are necessary to carry out the provisions of this decree and the several acts of Congress creating or aiding said defendant company or its constituent parts and all acts amendatory and supplemental thereto.” It was further adjudged that the Western Union Telegraph Company “ at once vacate all the offices of said railway company without interference or damage to the same, and without removing, until the further order of this court, any property therefrom or from the line of said railway company which has heretofore been jointly used by the two companies, or the ownership of which is in dispute or is so connected with or mixed with the property of the railway company as to make it difficult of identification, or the removal of which will interrupt or interfere with the discharge of the duties of the defendant railway company, as herein set forth and enjoined ; ” this decree, however, not to be construed as preventing the railway company from leasing to the telegraph company “the right to occupy with its wires, instruments, batteries, and operators, upon reasonable and proper terms, any of its poles along the right of way and space in the depots or stations of the said the Union Pacific Railway Company not required by the railway company for the transaction of its business.” UNITED STATES v. UNION PACIFIC RAILWAY. 19 Opinion of the Court. Sixty days after the entry of the decree were given to make such necessary arrangements, adjustments, and changes as might become necessary by reason of annulling the above agreements, and in order that the provisions of the decree might be carried into effect. And the right was reserved to the telegraph company to apply for and have stated an account between the defendants in respect of the value of the telegraph property along the line of the railway company, the cost of maintenance and profits of the telegraph lines, the amounts contributed thereto by the respective defendants or their assignors or predecessors in title, and all matters affecting the equities of the defendants — the United States to have the right to intervene on such accounting for the protection of its interests and those of the public. 50 Fed. Rep. 28. Upon appeal by the defendants to the United States Circuit Court of Appeals the decree of the Circuit Court was reversed, and the cause remanded with directions to enter a modified decree adjudging, among other things, that the agreement of October 1, 1866, was a lawful and binding contract, and continued in force until it was superseded by the agreement of July 1,1881; that the agreements of September 1,1869, and December 14,1871, were beyond the powers of the Union Pacific Railroad Company, and must be annulled; that the equities arising out of the two last-named agreements were adjusted and settled by the parties interested when they made the contract of July 1, 1881; and, that the last-named agreement was valid ’and binding in all respects, except that the third and fourth paragraphs were null and void to the extent, and only to the extent, that they secured or granted, or were intended to secure and grant, to the "Western Union Telegraph Company any exclusive rights, privileges, or advantages whatsoever. 19 U. S. App. 531; 8. C. 59 Fed. Rep. 813. Before examining the provisions of the agreements that were annulled by the decree of the Circuit Court, it is necessary to ascertain the nature and extent of the obligations imposed upon the Union Pacific Railroad Company and the other constituent companies of the Union Pacific Railway 20 OCTOBER TERM, 1895. Opinion of the Court. Company, in respect of the construction, maintenance, and operation of telegraph lines along the routes of their respective roads. If it be found that the Union Pacific Railway Company, in the exercise of the rights and powers of its constituent companies, was not, prior to the passage of the act of August 7, 1888, under any legal duty, in addition to the construction of a railroad on the routes prescribed, to maintain or operate telegraph lines on or along its roadways, the question will arise, whether it was competent for Congress to require that company, through its own officers and employes exclusively, to maintain or operate telegraph lines on or over its roadways, to be used for railroad, governmental, commercial, and other purposes, and itself alone exercise the telegraph franchises conferred by the acts of Congress. The Union Pacific Railroad Company was created by the above act of Congress of July 1, 1862. 12 Stat. 489, c. 120. Its title indicated that the subsidy granted was to aid in the construction of both a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes. Proceeding under that act, the company began in 1865, and in 1869 completed, the construction of a railroad from Omaha to Ogden, making connection at the latter place with the Central Pacific Railway, extending from Ogden to San Francisco. It also constructed, on the north side of its right of way, a telegraph line between Omaha and Ogden. By the first section of the above act of July 1, 1862, the Union Pacific Railroad Company was authorized and empowered “to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph ” from a named point in the then Territory of Nebraska to the western boundary of Nevada Territory; by the second section, a right of way through the public lands was given “ for the construction of said railroad and telegraph line; ” by the third section, a grant of public lands was made “ for the purpose of aiding in the construction of said railroad and telegraph line ; ” by the fourth section, patents for lands granted were to be issued UNITED STATES v. UNION PACIFIC RAILWAY. 21 Opinion of the Court. upon the certificate of commissioners appointed by the President, when it appeared that forty consecutive miles of the " railroad and telegraph line ” had been completed and equipped in all respects as required, and were ready for the service contemplated by the act; by the fifth section,provision was made for issuing to the company bonds of the United States that should constitute a first mortgage on the whole line of “ the railroad and telegraph, together with the rolling stock” — such bonds to be issued when the commissioners certified to the completion and equipment of forty consecutive miles of “ railroad and telegraph,” in accordance with the provisions of the act; by the sixth section, the grants of land were declared to be made “ upon condition that said company shall pay said bonds at maturity and shall keep said railroad and telegraph line in repair and use, and shall at all times transmit despatches over said telegraph line,” etc.; by the seventh section, the company was required, within one year after the passage of the act, to file its assent to its provisions, and complete said “ railroad and telegraph ” from the point of beginning as provided to the western boundary of Nevada Territory before the first day of July, 1874; and by the eighth section, “ the line of said railroad and telegraph ” was prescribed. The ninth section authorized the Leavenworth, Pawnee and Western Railroad Company — which, prior to January 1,1862, had located its line of road from Leavenworth to Fort Riley — to construct a railroad and telegraph line from the Missouri River, at the mouth of the Kansas River, on the south side thereof, so as to connect with the Pacific Railroad of Missouri at the aforesaid point, on the one hundredth meridian of longitude west of Greenwich, upon “ the same termsand conditions in all respects ” as were provided in the act for the construction of the railroad and telegraph line first mentioned, and to meet and connect with the same at the meridian of longitude named. The same section authorized the Central Pacific Railroad Company, a California corporation, to construct “a railroad and telegraph line” from the Pacific coast, at or near San Francisco or the navigable waters of the Sacramento River, to the eastern boundary of that State, “ upon the same 22 OCTOBER TERM, 1895. Opinion of the Court. terms and conditions, in all respects, as are contained in this act for the construction of said railroad and telegraph t line first mentioned, and to meet and connect with the first-mentioned railroad and telegraph line on the eastern boundary of California.” The tenth section authorized the Kansas and California companies, or either.of them, after completing their roads, to unite upon equal terms with the first-named company in constructing so much of said “ railroad and telegraph line and branch railroads and telegraph lines” in the act mentioned, through the Territories from the State of California to the Missouri River, as shall then remain to be constructed, on the same terms and conditions as provided in relation to the said Union Pacific Railroad Company. And the Hannibal and St. Joseph Railroad, the Pacific Railroad Company of Missouri, and the first-named company, or either of them, on filing their assent to the act, were authorized to unite upon equal terms, with the said Kansas company, in constructing said railroad and telegraph, to said meridian of longitude, with the consent of the said State of Kansas; “and in case said first-named company shall complete its line to the eastern boundary of California before it is completed across said State by the Central Pacific Railroad Company of California, said first-named company is hereby authorized to continue in constructing the same through California, with the consent of said State, upon the terms mentioned in this act, until said roads shall meet and connect, and the whole line of said railroad and telegraph is completed; and the Central Pacific Railroad Company of California, after completing its road across said State, is authorized to continue the construction of said railroad and telegraph through the Territories of the United States to the Missouri River, including the branch roads specified in this act, upon the routes hereinbefore and hereinafter indicated, on the terms and conditions provided in this act in relation to the said Union Pacific Railroad Company, until said roads shall meet and connect, and the whole line of said railroad and branches and telegraph is completed.” By the eleventh section it was provided, in respect of bonds UNITED STATES v. UNION PACIFIC RAILWAY. 23 Opinion of the Court. issued in aid of the construction of the most mountainous and difficult parts of the road, that “ no more than fifty thousand of said bonds shall be issued under this act to aid in constructing the main line of said railroad and telegraph ; ” by the twelfth section, that “ the whole line of said railroad and branches and telegraph shall be operated and used for all purposes of communication, travel, and transportation, so far as the public and Government are concerned, as one connected, continuous line; ” and by the fourteenth section, that the Union Pacific Railroad Company should construct a single line of railroad and telegraph from the western boundary of Iowa, at a point to be designated by the President, so as to form a connection with that company’s line on the said one hundredth meridian of longitude, upon the same terms and conditions prescribed “ for the construction of said railroad and telegraph first mentioned ; ” and whenever a railroad was constructed through Minnesota or Iowa to Sioux City, then the above company should construct a railroad and telegraph line from Sioux City to connect with the Union Pacific Railroad. The fifteenth section declared that any company then or thereafter incorporated should have the right to connect its road with the road and branches provided by the act, at such places and upon such terms as the President might prescribe. But by an act of Congress, passed June 20, 1874, 18 Stat. Ill, c. 331, the following addition was made to this section of the act of July 1, 1862, 12 Stat. 489, 496, c. 120: “And any officer or agent of the companies authorized to construct the aforesaid roads, or of any company engaged in operating either of said roads, who shall refuse to operate and use the road or telegraph under his control, or which he is engaged in operating for all purposes of communication, travel, and transportation, so far as the public and the Government are concerned, as one continuous line, or shall refuse, in such operation and use, to afford and secure to each of said roads equal advantages and facilities as to rates, time, or transportation, without any discrimination of any kind in favor of, or adverse to, the road or business of any or either of said companies, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, 21 OCTOBER TERM, 1895. Opinion of the Court. shall be fined in any sum not exceeding one thousand dollars, and may be imprisoned not less than six months; . . . and it is hereby provided that for all the purposes of said act, and of the acts amendatory thereof, the railway of the Denver Pacific Railway and Telegraph Company shall be deemed and taken to be a part and extension of the road of the Kansas Pacific Railroad, to the point of junction thereof with the road of the Union Pacific Railroad Company at Cheyenne, as provided in the act of March third, eighteen hundred and sixty-nine.” The sixteenth section of the act 'of 1862 further provided that all of the railroad companies mentioned in the act, or any two or more of them, might form themselves into one consolidated company, the latter company to proceed thereafter “ to construct said railroad and branches and telegraph line upon the terms and conditions provided in this act.” The seventeenth section provided that in case said company or companies failed to comply with the terms and conditions of the act “ by not completing the said road and telegraph and branches within a reasonable time, or by not keeping the same in repair and use, but shall permit the same, for an unreasonable time, to remain unfinished, or out of repair, and unfit for use, Congress may pass any act to insure the speedy completion of said road and branches, or put the same in repair and use, and may direct the income of said railroad and telegraph line to be thereafter devoted to the use of the United States, to repay all such expenditures caused by the default and neglect of such company or companies.” The eighteenth section provided that whenever it appeared that “ the net earnings of the entire road and telegraph,” including the amount allowed for services rendered for the United States, after deducting all expenditures, including repairs, and the furnishing, running, and managing of said road, shall exceed ten per centum upon its cost, exclusive of the five per centum to the United States, Congress could reduce the rates of fare thereon, if unreasonable in amount, and fix and establish the same by law. And “ the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and UNITED STATES v. UNION PACIFIC RAILWAY. 25 Opinion of the Court. telegraph line, and keeping the same in working order, and to secure to the Government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may, at any time, having due regard for the rights of said companies named herein, add to, alter, amend, or repeal this act.” The act of July 1,1862, was amended, in various particulars, by the act of July 2,1864, c. 216. 13 Stat. 356. By the tenth section of the latter act the former was so amended that the Union Pacific Railroad Company, the Central Pacific Railroad Company, and other companies authorized to participate in the construction of the proposed lines of road, could “ issue their first mortgage bonds on their respective railroad and telegraph lines to an amount not exceeding the amount of the bonds of the United States,” and “the lien of the United States shall be subordinate to that of the bonds of any or either of said companies, hereby authorized to be issued on their respective roads, property, and equipments,” except as to those provisions of the act of 1862, relating to the transmission of despatches, and the transportation of mails, troops, munitions of war, supplies and public stores of the United States. Section fifteen of the same act was in these words: “That the several companies authorized to construct the aforesaid roads are hereby required to operate and use said roads and telegraph for all purposes of communication, travel, and transportation, so far as the public and the Government are concerned, as one continuous line; and, in such operation and use, to afford and secure to each equal advantages and facilities as to rates, time, and transportation, without any discrimination of any kind in favor of the road or business of any or either of said companies, or adverse to the road or business of any or either of the others, and it shall not be lawful for the proprietors.of any line of telegraph, authorized by this act, or the act amended by this act, to refuse or fail to convey for all persons requiring the transmission of news and messages of like character, on pain of forfeiting to the person injured, for each offence, the sum of one hundred dollars, and such other damage as he may have suffered on account of said refusal or failure, 26 OCTOBER TERM, 1895. Opinion of the Court. to be sued for and recovered in any court of the United States, or of any State or Territory of competent jurisdiction.” The sixteenth section provided that any two or more of the companies authorized to participate in the benefits of that act might at any time unite and consolidate upon such terms and conditions as were not incompatible with such act or the laws of the State or States in which the roads of such companies were, and such consolidated company should be entitled to receive from the Government all the grants, benefits, and immunities that the respective constituent companies were entitled to, subject to all the restrictions imposed upon them. By the twenty-second section it was declared that “ Congress may, at any time, alter, amend, or repeal this act.” In our judgment, it is not difficult to ascertain the intention of Congress in passing the acts of July 1, 1862, and the amendatory act of July 2, 1864, c. 216. The supreme object to be attained was the maintenance and operation of both a railroad and telegraph line from the Missouri River to the Pacific Ocean, and governmental aid was extended in order to accomplish a result so important to the whole country. The authority given to the Union Pacific Railroad Company to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line on that route,- § 1; the grant of public lands/br the purpose of aiding in the construction of said railroad and telegraph line, § 3 ; the direction that patents for lands granted should be issued as each forty consecutive miles of such railroad and telegraph line appeared, upon the certificate of commissioners, appointed by the President, to have been completed and equipped in all respects as required, § 4; the making the bonds of the United States a first mortgage on the whole line of the railroad and telegraph, § 5; the explicit declaration that the grants of public lands were made upon the condition, among others, that the company should keep said railroad and telegraph line in repair and use, and at all times transmit despatches over said telegraph line, § 6 ; the requirement that the company should complete said railroad and telegraph on the route prescribed and within a named time, § 7; the reservation that Congress may at any UNITED STATES v. UNION PACIFIC RAILWAY. 27 Opinion of the Court. time, having due regard to the rights of the companies named, add to, alter, amend, or repeal the act in order that it may better accomplish the object of the government, namely, “to promote the public interest and welfare by the construction of” said railroad and telegraph line, and keep the same in working order, and to secure to the government at all times (but particularly in time of war) “ the use and benefits of the same for postal, military, and other purposes,” § 18; these and other provisions are wholly inconsistent with the idea that the Union Pacific Railroad Company could have fulfilled its obligations to the government by simply constructing a railroad, without making any provision whatever for the construction, maintenance, or operation of a telegraph line, thereby leaving all communication by telegraph, along its route, to the absolute control of private corporations deriving no corporate authority from the National Government, and whose operations would not ordinarily be subjected to national supervision. The same observations are applicable to the Leavenworth, Pawnee and Great Western Railroad Company — afterwards, and successively, as has been stated, the Union Pacific Railway Company, Eastern Division, and the Kansas Pacific Railway Company. That corporation was authorized to construct not simply a railroad, but a railroad and telegraph line, between certain points, upon the same terms and conditions as were prescribed in the act for the construction of a railroad and telegraph line by the Union Pacific Railroad Company. The purpose of Congress, as indicated in the act of 1862, to provide for the construction of telegraph lines by the companies named in it, in connection with their respective railroads, was unchanged at the time of the passage of the amendatory act of July 2, 1864, c. 216. The latter act, as we have seen, gave authority to the companies authorized to participate in the construction of the roads that were to connect the Missouri River with the Pacific Ocean to place a first mortgage on their respective railroads and telegraph lines, and made the mortgage held by the United States subordinate to it. § 10. It did more. It required those companies to operate and use their roads and telegraph for all purposes of communication, 28 OCTOBER TERM, 1895. Opinion of the Court. travel, and transportation, so far as the public and government were concerned, “ as one connected, continuous line,” and without discrimination against either road — a requirement that would not have been made if Congress had not intended that each company receiving aid from the government should itself maintain and operate or control, or should provide for the maintenance, on its own route, and under its own control, of a telegraph line for the accommodation of both the government and the general public. What we have said as to the objects that Congress intended to accomplish by aiding the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean is based upon sections one to eighteen, inclusive, of the act of July 1, 1862, and upon the provisions of the amendatory acts of July 2, 1864, c. 216, and June 20, 1874, 18 Stat. Ill, c. 331. If we look alone to those sections and provisions, the conclusion must be that any company named in the act of 1862, and receiving the aid therein granted by the government, was required itself, and through its own officers and employes, to construct, maintain, and operate both a railroad and telegraph line, and could not assign or transfer to any other corporation its franchises in that regard. But there is a section in the act of 1862 showing that, for the benefit of certain telegraph companies that had already expended large sums in the construction of telegraph lines, Congress was willing, in a named contingency, to relieve the railroad companies receiving governmental aid, from, at least, any present obligation to construct telegraph lines on their respective rights of way. That contingency is indicated in the nineteenth section of the act of 1862, which provides: “That the several railroad companies herein named are authorized to enter into an arrangement with the Pacific Telegraph Company, the Overland Telegraph Company, and the California State Telegraph Company, so that the present line of telegraph between the Missouri River and San Francisco may be moved upon or along the line of said railroad and branches as fast as said roads and branches are built; and if said arrangement be entered into, and the transfer of said tele- UNITED STATES v. UNION PACIFIC RAILWAY. 29 Opinion of the Court. graph line be made in accordance therewith to the line of said railroad and branches, such transfer shall, for all purposes of this act, be held and considered a fulfilment on the part of said railroad companies of the provisions of this act in regard to the construction of said line of telegraph. And, in case of disagreement, said telegraph companies are authorized to remove their line of telegraph along and upon the line of railroad herein contemplated without prejudice to the rights of said railroad companies named herein/’ A similar provision relating to the Union Pacific Railroad Company and the United States Telegraph Company and its associates was embodied in the fourth section of the act of Congress, commonly known as the Idaho act, of July 2, 1864, c. 220,13 Stat. 373, entitled “ An act for increased facilities of telegraph communication between the Atlantic and Pacific States and the Territory of Idaho.” By the latter act the United States Telegraph Company and their associates were authorized to erect a line or lines of magnetic telegraph between the Missouri River and San Francisco on such routes as they might select, to connect with its lines then constructed and being constructed through the States of the Union. It was given the use of such unoccupied land of the United States as was necessary for right of way, and materials, and for the establishing of stations along said line for repairs, not exceeding at any station one quartersection of land, and such stations not to exceed one in fifteen miles on the average of the whole line, unless said lands should be required by the government of the United States for railroad or other purposes. § 1. Under the direction of the President of the United States it was authorized to erect a telegraph line from Fort Hall to Portland, Oregon, and from Fort Hall to Bannock and Virginia City, in the Territory of Idaho, with the same privileges as to the right of way, and so forth, as provided in the first section; the United States to have priority in the use of said lines of telegraph to Oregon and Idaho. § 2. It was authorized to send and receive despatches, on payment of the regular charges for transmission, over any line then or thereafter to be constructed by the 30 OCTOBER TERM, 1895. Opinion of the Court. authority or aid of Congress, to connect with any line or lines authorized or erected by the Russian or English governments, and all despatches received by its line or lines were to be transmitted in the order of their reception, and the answers delivered to the United States Telegraph Company for transmission over their lines to the office whence the original message was sent, whenever so directed by the sender thereof. § 3. By the fourth section it was provided: “The several railroad companies authorized by the act of Congress of July one, eighteen hundred and sixty-two, are authorized to enter into arrangements with the United States Telegraph Company so that the line of telegraph between the Missouri River and San Francisco may be made upon and along the line of said railroads and branches as fast as said roads and branches are built, and if said arrangements be entered into and the transfer of said telegraph line be made in accordance therewith to the line of said railroads and branches, such transfer shall, for all purposes of the act referred to, be held and considered a fulfilment on the part of said railroad companies of the provision of the act in regard to the construction of a telegraph line; and, in case of disagreement, said telegraph company are authorized to remove their line of telegraph along and upon the lines of railroad therein contemplated, without prejudice to the rights of said railroad companies.” Referring to the nineteenth section of the act of 1862, Mr. Justice Miller, in Western Union Tel. Co. v. Union Pacific Railway, 3 Fed. Rep. 721, 728, (1 McCrary, 581, 588,) said: “ The three telegraph companies here spoken of, together constituted, at the time this statute was passed, a continuous line of telegraph from the Missouri River to San Francisco; and it was obvious that the building of another line parallel to that, and not far distant from it, would have a very injurious effect upon the value of the property of those telegraph companies ; and it was to protect those companies and to prevent the injury which would follow from the construction of another line between the same points, over an uninhabited region of country, that Congress provided that, by an arrangement with the railroad company, if those companies should remove their UNITED STATES v. UNION PACIFIC RAILWAY. 31 Opinion of the Court. wires along the line of that road so they could be used both for railroad purposes and the use of the general public, then the obligation of the railroad- company under the act of Congress to build another line should no longer exist.” In reference to the fourth section of the Idaho act, the same eminent Justice said: “It does not admit, in my opinion, of any reasonable doubt that if the United States Telegraph Company mentioned in that statute, or any company which had the same rights and authorities on that subject that that company had, entered into an agreement with the Pacific Railroad Company, or any of its branches built under the authority of the original act of 1862, which secures the proper construction and operation of a line of telegraph along its road for the benefit of the public, that it is absolved from the obligation imposed upon it by the act of 1862, to construct and operate such a telegraph line. It was manifestly the design of this act of 1864 to enable the United States Telegraph Company to become substituted, by a proper arrangement with the Pacific Railroad Company and its branches, to the right to build a telegraph line along the track and right of way of those railroad companies, and thereby to relieve those companies from the obligation to build and operate such a line.”. Id. 727. We concur in these observations as to the scope and effect of the nineteenth section of the act of 1862, and of the like section in the Idaho act of July 2, 1864, c. 220. But it must be observed that the transfer to the roadway of the Union Pacific Railroad of the lines of the telegraph companies, or either of them, named in the nineteenth section of the act of 1862, was not in pursuance of any “arrangement” made with those companies. On the contrary, as stated by counsel, the lines constructed by telegraph companies between Omaha and Ogden, and operated by the Western Union Telegraph Company prior to the actual completion of the railroad between those points, were transferred to the south side of the railroad as the work of railroad construction proceeded, without any arrangement whatever with the railroad company. This was done under that clause in the nineteenth section of the act of 32 OCTOBER TERM, 1895. Opinion of the Court. 1862, providing that “ in case of disagreement said telegraph companies are authorized to remove their line of telegraph along and upon the line of railroad herein contemplated without prejudice to the rights of said railroad companies named herein.” In reference to the telegraph line from Kansas City via Lawrence and Rossville to Denver, the claim is, that a part of it was constructed under some arrangement between the railroad company and Samuel Hallett, contractor ; that the balance was constructed under the contract of October 1,1866, between the Western Union Telegraph Company and the Kansas Pacific Railroad Company, the latter contracting by the name it then used of the Union Pacific Railway Company, Eastern Division ; and that after that date and until 1880, the line of telegraph extending from Kansas City to Denver was operated under the contract of October 1, 1866. It is further claimed that the telegraph line so constructed was accepted by the Government as a substitute for the line which the charter of the railroad company required it to construct, maintain, and operate. If it were true that the telegraph line on the Kansas Pacific branch was constructed on the roadway of the railroad company under such an “ arrangement ” with the railroad company as was contemplated or permitted by the fourth section of the Idaho act, and that the Government, by not declaring to the contrary, is to be deemed to have accepted the construction by the telegraph companies of a line on the south side of the right of way of the Union Pacific Railroad as equivalent to an “ arrangement ” allowed by the nineteenth section of the act of 1862, the question would remain whether such arrangements, even if legal in all respects when made, so tied the hands of the Government that it could not, at a subsequent date, in execution of the purposes of Congress, require the railroad company, by its own officers and employés exclusively, to maintain or operate telegraph lines for railroad, governmental, and commercial purposes, on and over its roads, for the construction of which the aid of the United States was. accepted. We have seen that the object of giving governmental aid to the corporations named in the act of 1862 was to promote the UNITED STATES v. UNION PACIFIC RAILWAY. 33 Opinion of the Court. public interest and welfare by the construction and operation of a railroad and telegraph line, to the use and benefit of which the Government should be entitled at all times, particularly in time of war, for postal, military, and other purposes ; and that “ the better to accomplish ” that object Congress reserved the power, capable of being exercised at any time, of adding to, altering, amending, or repealing such act, having “ due regard to the rights ” of the companies named in it; and that by the act of 1864, c. 216, the several companies authorized to construct the roads named were required to operate and use their roads and telegraph for all purposes of communication, travel, and transportation as one connected, continuous line, affordino* equal advantages and facilities as to rates, time, and transportation, without discrimination against other companies, or against persons requiring the transmission of news and messages. No express limitation is imposed upon the exercise of the power so reserved, except that the act of 1862 required that due regard be had to the rights of the railroad companies that accepted its provisions. But, looking at the entire act, it is clear that there was no purpose to interfere with the authority of Congress to enact such laws, by way of addition to or alteration of existing legislation, as were necessary or conducive to the attainment of the public objects sought to be attained. Indeed, the words in the act of 1862, “ due regard for the rights of said companies named therein,” suggest only such restrictions as the law, without such words, would imply. It would not be competent for Congress, under the guise of altering and amending the act in question, to impose upon the railroad company duties wholly foreign to the objects for which it was created or for which governmental aid was given. Neither could it, by such alteration or amendment, destroy rights actually vested, nor disturb transactions fully consummated. We may here, not inappropriately, repeat what was said in the Sinking Fund Cases, 99 U. S. 700, 718, 719, 720, that “this power has a limit,” and “cannot be used to take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to possession of contracts lawfully made,” Again, vol. clx—3 34 OCTOBER TERM, 1895. Opinion of the Court. in the same case : “ The United States cannot, any more than a State, interfere with private rights, except for legitimate governmental purposes. They are not included within the constitutional prohibition which prevents States from passing laws impairing the obligation of contracts, but equally with the States they are prohibited from depriving persons or corporations of property without due process of law. They cannot legislate back to themselves, without making compensation, the lands they have given this corporation to aid in the construction of its railroad. Neither can they by legislation compel the corporation to discharge its obligations in respect to the subsidy bonds otherwise than according to the terms of the contract already made in that connection. The United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a State or a municipality or a citizen. No change can be made in the title created by the grant of the lands, or in the contract for the subsidy bonds, without the consent of the corporation. All this is indisputable.” But it cannot be doubted that the act of 1888 is within the general scope, and consistent with the objects, of the previous statutes relating to railroad and telegraphic communication between the Missouri River and the Pacific Ocean. If Congress concluded — and we must assume, from the provisions of the act of 1862, that it did conclude — that the public interests and the general welfare would be promoted if the railroad company, accepting national aid, should exercise through its own officers and employés exclusively, the telegraphic franchises granted to it, it is difficult to perceive how legislation designed to enforce such a policy can be held to be wanting in due regard to the rights of such company. It may be that Congress passed the act of 1888 because, in its judgment, the rights of the Government and of the public, in the matter of telegraphic communication, could be fully secured or effectively guarded only by means of telegraph lines maintained and operated by a corporation deriving its power from the General Government, and subject, in respect UNITED STATES v. UNION PACIFIC RAILWAY. 35 Opinion of the Court. of the general conduct of its affairs, to national supervision and control. If such considerations induced the passage of the act of 1888, can the validity of that legislation be made to turn upon the inquiry by the courts whether the policy inaugurated by Congress was best for the public interests? Can it be said that the act of 1888 is not germane or related to the objects for the attainment of which the aid of the Government was bestowed, as indicated in the act of 1862? These questions must be answered in the negative. We have nothing to do with the wisdom or policy of legislation. The discretion of Congress in such matters cannot be controlled by the judiciary, nor can the courts disregard an act of legislation merely upon the ground that the public interests would, in their judgment, have been best subserved by leaving telegraphic communications, along the route of railroads constructed with national aid, under the domination of private corporations organized under state authority. We can consider only the question of legislative power. If the power existed to enact the statute of 1888, the duty of the courts is to give full effect to the will of Congress. No other position can be taken without attributing to the judiciary an authority to revise the action of the legislative branch of the Government that it does not possess, and which the established principles of our Government forbid it to exercise. The contention that the act of 1888 did not have due regard to the rights of the railroad company is based upon that provision in the act of 1862 (§ 19), and a similar provision in the act of 1864 (§ 4), which permitted the railroad company to make an “arrangement” with certain telegraph companies to place their lines upon and along the route of the railroad and branches — such transfer to be held and considered, for all the purposes of the act, a fulfilment on the part of said railroad companies of the provisions of the act “ in regard to the construction of said lines of telegraph;” But such an arrange--men^ accompanied by the transfer of telegraph lines constructed by telegraph companies to the roadway of the railroad company, had no other effect than to relieve the railroad company from any present duty itself to construct a telegraph 36 OCTOBER TERM, 1895. Opinion of the Court. line to be used under the franchises granted and for the purposes indicated by Congress. It did not affect the authority of Congress, under its reserved power, to require the railroad company itself to maintain or operate in the future, by its officers and employes alone, telegraph lines on its main road and branches. Indeed, no arrangement of the character specified could have been made, except in full view of the power reserved to add to, alter, or amend the act that permitted it. Although, as just stated, that power could not have been exercised, so as to divest either the railroad company or the telegraph company of property already acquired, or to disturb or annul any transaction fully consummated, while such arrangement was in force, it was competent for Congress to make such additions to, or such alterations or amendments of, previous statutes, as would secure the maintenance or operation by the railroad company, through its own officers and employes, of a telegraph line over and along its main line and branches. It is of no consequence that such legislation may defeat the purpose contemplated by the parties to an arrangement of the character described ; for they contracted, and could only have contracted, in view of the possible exercise by Congress of the power expressly reserved by it. If we should hold the addition made by the act of 1888 to the act of 1862, and the acts amendatory thereof, to be beyond the power of Congress, it would be difficult, if not impossible, to prescribe the lines within which the national legislature must keep, and beyond which it may not pass, when exerting its reserved power of adding to, altering, or amending statutes and charters of incorporation. We have, therefore, considered the question before us just as if a contract or arrangement, between the railroad and a telegraph company, for the construction by the latter of a telegraph line on the route of the former, expressly recited the provision of the act of 1862, by which Congress reserved the power, to be exerted at any time, to add to, amend, or repeal the act which authorized such contract or arrangement. In this view, it must be held that by its reservation of authority to add to, alter, amend, or repeal the acts in question, UNITED STATES v. UNION PACIFIC KAILWAY. 37 Opinion of the Court. whenever it chose so to do, Congress, subject to the limitation that rights actually vested or transactions fully consummated could not be disturbed, intended to keep within its control the entire subject of railroad and telegraphic communication between the Missouri River and the Pacific Ocean, through the agency of corporations created by it, or that had accepted the bounty of the Government. It was never intended that the railroad companies, accepting such bounty, should be able, by any contract or arrangement with telegraph companies, to discharge themselves, for all time and beyond the authority of Congress otherwise to provide, from the obligation to exercise, by their officers and agents exclusively, the telegraphic franchises received by them from the National Government. These principles are fully supported by former decisions, in which this court has determined the scope and effect of constitutional or statutory provisions that reserved to the legislature granting charters of incorporation, or enacting statutes under which private rights might be acquired, the power to alter, amend, or repeal such charters or statutes. Tomlinson v. Jessup, 15 Wall. 454, 457, 458; Miller v. State, 15 Wall. 478; Holyoke Company v. Lyman, 15 Wall. 500; Sinking Fund Cases, 99 U. S. 700, 720, 721; Greenwood v. Freight Co., 105 U. S. 13, 21; Close v. Glenwood Cemetery, 107 U. S. 466, 476; Spring Valley Water Works Co. v. Schottler, 110 U. S. 347,352; Louisville Gas Co. v. Citizens’ Gas Co., 115 U. S. 683, 696; Gibbs v. Consolidated Gas Co., 130 U. S. 396, 408; Sioux City Street Railway v. Sioux City, 138 U. S. 98, 108; Louisville Water Co. v. Clark, 143 U. S. 1, 12, 14; Ham-ilton Gas Light Co. v. Llamilton City, 146 U. S. 258, 270; IL Y. de N. E. Railroad v. Bristol, 151 U. S. 556, 567. What has been said in reference to the effect of the reservation in the act of 1862 of the right of adding to, altering, amending, or repealing its provisions, is applicable to the fourth section of the Idaho act of July 2, 1864, which permitted the several railroad companies referred to in the act of 1862 to make an arrangement with the United States Telegraph Company, such as was permitted by the nineteenth section of the act of 1862 to be made with the telegraph companies therein 38 OCTOBER TERM, 1895. Opinion of the Court. named. The fourth section of the Idaho act was, in legal effect, nothing more than an amendment or enlargement of the nineteenth section of the act of 1862, by adding the name of another telegraph company t.o those mentioned in the latter section. It was suggested in argument that the objects of the act of 1862 could be fully accomplished by means of a telegraph company, incorporated by one of the States, and which, by placing its lines on the route of the railroad, could meet all the demands, as well of the railroad company, as of the Government and the general public. But this suggestion can have no weight in the present inquiry. For if, as intimated, the execution of the act of 1888 will result in no real good to the general public, and may even be injurious to the pecuniary interests which the Government has in the Union Pacific Railway and its branches, that is a question of public policy, with which the judiciary is not concerned, and the responsibility for which is with another branch of the Government. We perceive no escape from the conclusion that it is entirely competent for Congress to add to, alter, or amend the acts of 1862 and 1864, so as to require the Union Pacific Railway Company, possessing the rights and powers of its constituent companies, to maintain and operate, by and through its own officers and employes, telegraph lines, for railroad, governmental, commercial, and other purposes, and to exercise itself and alone all the telegraphic franchises conferred upon it. It is enjoying the bounty of the Government subject to the condition, among others, that it will perform these duties whenever so required by Congress. It becomes necessary now to determine in what respects the agreements of 1866,1869,1871, and 1881, if kept and performed by the defendants, are inconsistent with the rights of the United States, and whether, by their necessary operation, they will interfere with the performance by the Union Pacific Railway Company of the duty imposed upon it by the act of 1888. Looking first at the agreement of October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company, it will be seen that the Western Union Telegraph Company does not, in that agree- UNITED STATES v. UNION PACIFIC RAILWAY. 39 Opinion of the Court. ment, expressly undertake to meet the obligations imposed by the Pacific Railroad acts upon the railroad companies named in them, of constructing, maintaining, and operating both a railroad and telegraph line, on their respective routes, for the use equally of the Government and the public. It does undertake to perform, without charge to the railway company, what should be “ decided by competent authority ” to be the telegraphic obligations of the railroad company to the Government. § 10. Whom the parties regarded as competent to decide as to the nature and extent of such obligations, does not appear from the agreement. The effect of this stipulation, as between the railway company and the telegraph company, was to excuse the latter from performing any services for the Government, until competent authority decided that such service was due from the former. But passing this point, as one not controlling in the case, it is evident that the effect, if not the object, of the agreement was to give the telegraph company the absolute control of all telegraphic business on the route of the Union Pacific Railway Company, Eastern Division. The provision that the railway company should transport for the telegraph company, free of charge, all the persons engaged, and material required, in the construction, repairing, and maintaining the telegraph line for which the agreement provided, while exacting from other telegraph companies, for persons engaged and for property intended to be used, in building a telegraph line on the railway company’s roadway, the usual rates for passengers and freight, §§ 4, 5 ; the stipulation that the railway company should not give permission to another telegraph company to construct or operate any telegraph line upon the lands or roadway of the railway com-pany, without the consent in writing of the telegraph com-pany, § 5; the provision that the railway company should not, without the consent of the telegraph company, transmit commercial or paid business from any station where the latter had an office; and the provision that the railway company should account for and pay over to the telegraph company, at the tariff rates established by the latter, all sums received by 40 OCTOBER TERM, 1895. Opinion of the Court. the railway company for messages sent from points where the telegraph company had no separate office, if such sums were not sufficient to meet the expenses of a separate, telegraph office, § 8 — these provisions, to say nothing of others, all plainly indicate that the object of the agreement was to grant to the Western Union Telegraph Company, as against all other telegraph companies, the exclusive right to control the railway company’s roadway for telegraphic purposes, so far as that could be done without interfering with the ordinary operations of the railway company. This agreement of October 1, 1866, enabling the Western Union Telegraph Company to exclude all other telegraph corporations from the roadway of the railway company, if not void as against public policy, independently of specific statutory provisions, was inconsistent with the act of Congress of July 24, 1866, 14 Stat. 221, c. 230, entitled “ An act to aid in the construction of telegraph lines, and to secure to the Government the use of the same for postal, military, and other purposes.” The substantial provisions of this statute have been preserved in sections 5263 to 5268, inclusive, of the Revised Statutes. By the act of June 8, 1872, 17 Stat. c. 335, pp. 308, 309, reproduced in section 3964 of the Revised Statutes, all the waters of the United States, during the time the mail is carried thereon, and all railroads or parts of railroads in operation, are post roads. And by the above statute of 1866 Congress declared that any telegraph company then organized, or which might thereafter be organized, under the laws of any State of the Union should have the right to construct, maintain, and operate lines of telegraph through or over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which had been or might thereafter be declared such by act of Congress, and over, under, or across the navigable streams of the United States ; the lines of telegraph to be so constructed and maintained as not to obstruct the navigation of streams and waters, or interfere with the ordinary travel on military or post roads. « And any of said companies,” the act declared, “ shall have the right to take and use from such public lands the necessary UNITED STATES v. UNION PACIFIC RAILWAY. 41 Opinion of the Court. stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may preempt and use such portion of the unoccupied public lands, subject to preemption through which its said lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.” The remaining sections of that act were as follows: “ § 2. That telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster General. § 3. That the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association, or person : Provided, however, The United States may at any time, after the expiration of five years from the date of the passage of this act, for postal, military, and other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be Selected by the Postmaster General of the United States, two by the company interested, and one by the four so previously selected. § 4. That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Postmaster General of the United States of the restrictions and obligations required by this act.” It is clear that the essential part of the agreement of 1866 is prohibited by this act of July 24,1866. As that act gave every telegraph company, organized under state laws, and accepting its provisions, the right to erect its poles and wires upon the post roads of the United States, the agreement of the Union Pacific Railway Company, Eastern Division, that it would not permit, except with the consent of the Western Union Telegraph Company, other telegraph companies to use its road wav, 42 OCTOBER TERM, 1895. Opinion of the Court. directly tended to make the act of July 24, 1866, ineffectual, and was, therefore, hostile to the object contemplated by Congress. Pensacola Tel. Co. n. Western Union Tel. Co., 96 U. S. 1, 11. The railway company operating one of the post roads of the United States, over which interstate commerce was carried on, could not, at least after the passage of that act, grant to any one or more^ telegraph companies the exclusive right to use its roadway for telegraphic purposes. But it is contended that the agreement of 1866 was authorized by the Idaho act of 1864. That act, as we have said, authorized the several railroad companies, named in the act of July 1, 1862, to enter into an “arrangement” with the “United States Telegraph Company” for the transfer of its telegraph line to the roadways of the railroad company, and declared that such transfer, when made, should, for all the purposes of the act of 1862, “be held and considered a fulfilment, on the part of said railroad companies, of the provisions of this act in regard to the construction of a telegraph line.” We have already determined that the Idaho act did not affect the power that Congress reserved, of adding to, alter-in^. amending, or repealing the original and amendatorv acts. It is now to be examined as to its bearing upon the validity of the agreement of October 1, 1866. If the Western Union Telegraph Company became the successor in right and power of the United States Telegraph Company, and entitled to make any arrangement with the railroad company that its predecessor could legally have made — and such is the claim of the Western Union Telegraph Company — the question, nevertheless, remains, whether the fourth section of the Idaho act authorized any “ arrangement” to be made by the Union Pacific Bailway Company, Eastern Division, with the United States Telegraph Company, in conflict with the previous act of July 24, 1866. This question is not, in our judgment, difficult of solution. The purpose of the fourth section of the Idaho act is quite apparent. Its effect was, as we have heretofore said, to relieve each of the railroad companies named in the act of 1862 from UNITED STATES v. UNION PACIFIC RAILWAY. 43 Opinion of the Court. way present obligation to construct a telegraph line on its roadway, by means of an “arrangement” with the United States Telegraph Company for the construction of such a line. But no arrangement could be legally made under that act which tended, in any degree, to defeat the great objects of the act of 1862, and the act amendatory thereof, of July 2, 1864, c. 216. The act of 1862 did not authorize the railroad company to agree that it would not itself, at some future time, construct and operate a telegraph line for the use of the Government and the people. Nor did it, in terms or by implication, repeal or modify the clause in that act by which Congress ex* pressly reserved the power to add to, alter, amend, or repeal, the latter act, having due regard to the rights of the railway companies named in it. Certainly, it could never be held that a due regard to the rights of either the railroad company or of any corporation claiming under it required that the Government, charged by the Constitution with the duty of regulating interstate commerce, should permit the railroad company receiving national aid to invest a corporation, not deriving its authority from the United States, with the exclusive right to enjoy its roadway — a national highway — for purposes of telegraphic communication between the States. Even if the act of July 24, 1866, had never been passed, we ought not to construe the Idaho act as permitting the railway company to bind itself by agreement to give to one telegraph company a monopoly of the use of its roadway for telegraphic purposes. In none of the acts of Congress, having for their object the establishing of communication by railroad and telegraph between the Missouri River and the Pacific Ocean, is there to be found anything indicating a purpose to allow the post roads of the United States, particularly those aided by the Government, to fall, for all the purposes of telegraphic communication, under the exclusive control of one or more telegraph corporations. On the contrary, as early as the act of June 16, 1860, c. 137, “to facilitate communication between the Atlantic and Pacific States by electric telegraph,” it was declared that nothing in that act contained should confer “ any exclusive right to construct a telegraph to the Pacific, 41 OCTOBER TERM, 1895. Opinion of the Court. or debar the Government of the United States from granting from time to time, similar franchises and privileges to other parties.” 12 Stat. 41. If, however, it be contended that this is not the correct interpretation of the Idaho act, upon what ground can it be claimed that any arrangement could be made under the Idaho act, after the passage of the act of July 24, 1866, that was inconsistent with the latter act ? Can it be said that, after the passage of the act of 1866, and while it was in force, a railway company, operating a post road of the United States, could, by any form of agreement, exclude from its roadway a telegraph company which had accepted the provisions of that act? These questions can be answered only in one way, namely, that every railroad company operating a post road of the United States, over which commerce among the States is carried on, was inhibited, after the act of July 24, 1866, took effect, from making any agreement inconsistent with its provisions or that tended to defeat its operation. The object of that act was not only to promote and secure the interests of the Government, but to obtain, for the benefit of the people of the entire country, every advantage, in the matter of communication by telegraph, which might come from competition between corporations of different States. It was very far from the intention of Congress, by any legislation, to so exert its power as to enable one telegraph corporation, Federal or state, to acquire exclusive rights over any post road, especially one for the construction of which the aid of the United States had been given, and the use of which was, to some extent, under the control of the National Government. We are, consequently, of opinion that the agreement of October 1, 1866, was, in its essential provisions, invalid and not binding upon the railway company. In reference to the agreements of 1869 and 1871 between the Union Pacific Railroad Company and the Atlantic and Pacific Telegraph Company, but little need be said to show that they were void. By those agreements the former corporation demised and leased to the telegraph company, to whose rights, it may be assumed, the Western Union Telegraph Company sue- UNITED STATES v. UNION PACIFIC RAILWAY. 45 Opinion of the Court. needed, all the telegraph lines, wires, poles, instruments, offices, and other property appertaining to telegraph business, that were possessed by the railroad company. These agreements were annulled by the Circuit Court, and it was likewise so adjudged by the Circuit Court of Appeals. The same conclusion had been previously announced by Judge McCrary in Atlantic and Pacific Telegraph Co. v. Union Pacific Railway Co., 1 McCrary, 541, 547. That able judge well said: “I conclude that the charter of the Union Pacific Railroad Company devolved upon it the duty of constructing, operating and maintaining a line of telegraph for commercial and other purposes, and that this is in its nature a public duty. I am further of the opinion that, by the provisions of the contract of September 1, I860, and of December 20,1871, the railroad company undertook to lease or alienate property which was necessary to the performance of this duty. The consideration for these contracts is declared to be ‘ the demise of their telegraph lines, property and good will, and of the rights and privileges, in the manner hereinafter specified,’ etc.; and the property demised by the railroad company is £ all its telegraphic lines, wires, poles, instruments, offices, and all other property by it possessed, appertaining to the business of telegraphing, for the purpose of sending messages and doing a general telegraph business.’ The lessee was to hold during the whole term of the charter of the railroad company and any renewal thereof. There is inserted a stipulation that the lessee shall perform all the duties imposed or that may be imposed upon the railroad company by their charter or by the laws of the United States. But, as already intimated, I do not think this latter clause makes the contract good. The railroad company was not at liberty to transfer to others those important duties and trusts which it, for a large consideration and for a great public purpose, had undertaken to perform. It certainly could not divest itself of these powers and duties, and devolve them upon the plaintiff, without express authority from Congress.” Again : “ But if the contracts in question are not ultra vires by reason of the transfer of property necessary to the performance, by the railroad company, of its public duties, they are so because 46 OCTOBER TERM, 1895. Opinion of the Court. they attempt to transfer certain franchises of the said company. The right to operate a telegraph line, and to fix and to collect tolls for the use of the same, is, to say the least, the most valuable part of the franchise conferred by Congress upon the railroad company, as a telegraph company. This right is alienated by a clear and unequivocal assignment or transfer from the railroad company to the plaintiff. Without discussing other features of the contracts, I am compelled to hold that this feature is alone sufficient to render them in excess of the corporate power of the company.” We now come to the important contract of July 1,1881, between the Western Union Telegraph Company and the Union Pacific Railway Company. As that contract is too lengthy to be inserted at large in the body of this opinion, we have, in our statement of the case, given such of its provisions as appear to relate directly to the issues presented by the pleadings. We have seen that the contract of July 1,1881, was annulled by the original decree of the Circuit Court, but was upheld by the Circuit Court of Appeals, except as to the third and fourth paragraphs, which were adjudged by that court to be null and void to the extent that they secured and granted, or were intended to secure or grant, to the Western Union Telegraph Company any exclusive rights, privileges, or advantages whatsoever. Much said in this opinion touching the agreements of 1866, 1869, and 1871, is applicable to that of 1881, and need not be here repeated. We have no difficulty in holding that the latter was invalid in the particulars named in the final decree of the Circuit Court of Appeals. But that agreement is illegal, not simply to the extent that it assumes to give to the Western Union Telegraph Company exclusive rights and advantages in respect of the use of the way of the railroad company for telegraph business; but it is also illegal because, in effect, it transfers to the Western Union Telegraph Company the telegraphic franchise granted it by the Government of the United States. The duty to maintain and operate a telegraph line between the points specified in the act of 1862 was committed by Congress to certain corporations which it named, and neither they, nor any corporation into which they were UNITED STATES v. UNION PACIFIC RAILWAY. 47 Opinion of the Court. merged, could, without the consent of Congress, invest a state corporation with exclusive telegraphic privileges on the line of the roads it then owned or thereafter acquired. The United States was not bound to look to the Western Union Telegraph Company for the discharge of the duties the performance of which, in consideration of the aid received from the Government, the Union Pacific Railroad Company, and other named companies, undertook to discharge for the benefit of the United States and of the public. No agreement with the telegraph company, to which the assent of the Government was not given, could take from the railroad company its right at any time to itself maintain and operate the telegraph line required by the act of 1862 for the use of the Government and of the public, nor impair the power of Congress to require the performance by the railroad company itself of the duties imposed by that act. As to the object of the provisions of the agreement of 1881, the Circuit Court, speaking by Mr. Justice Brewer, properly said : “ They mean that the telegraphic business and the telegraphic franchise, in the sense we have defined it, should be exercised by the Western Union Telegraph Company, and that no other company, railway or telegraph, should touch it. The purpose was — a purpose disclosed by every section and line of the contract — that the public and commercial use of the telegraph wires should belong to the Western Union Company, leaving to the railroad company only so much of the telegraph wires as was necessary for its own business.” Again : “ So it is that the lessons of experience support and establish the construction placed upon the contract of 1881, to the effect that the telegraphic franchise, as a franchise of independent, public, and commercial transportation, was intended to be and was transferred by the railway company to the Western Union Company, leaving only to the former so much use of telegraph wire as would facilitate and further its own railroad business.” That the purpose of the agreement of 1881 was to transfer to the Western Union Telegraph Company the telegraphic franchises granted by the United States, was asserted by that company in a bill filed by it (a copy of which is made a part 48 OCTOBER TERM, 1895. Opinion of the Court. of the present record) to prevent the Union Pacific Railway Company from complying with the mandate of the act of August 7, 1888. In that bill it was claimed that the parties stipulated in the contract of 1881 that the telegraph company “ might render to the Government and to the public such telegraph service as by the law of its creation it was bound to perform.” And the telegraph company stated, in the same bill, that it had come about under that agreement, and through the growth of the railroad business, that the railroad company had “ no wires on which it can do a general telegraph business, all those devoted to its railroad business being overburdened therewith.” Again, in the same bill: “ The said wires used by the defendant in the operation of its road are not equal to its necessities in that behalf, and it is impossible for it to do any business for the public or other companies on said wires without seriously interfering with and impeding the operation of its engines, cars, and trains, and if it undertake to do so it will be under the necessity of using your orator’s five wires, or some of them. Upon your orator’s said wires is carried on almost the entire transcontinental business of the Union; nor can your orator submit to any interference therewith by the defendant or any other party without seriously impeding and disarranging that business to its great loss and the public inconvenience.” In addition to this, it may be stated that the telegraph superintendent of the railway company testified in this case that it would not be practicable to operate the wires used by the railroad company “ for general commercial business without seriously interfering with the railroad business, and the railroad company’s wires would be inadequate to carry any additional business.” This inquiry need not be further extended, except to observe that there would be no occasion to make the Western Union Telegraph Company a defendant in this suit, and it would not have any standing in court to complain of the act of August 7, 1888, if it did not claim that the construction, or the maintenance and operation by the railway company, through its own employes, of a distinct telegraph line on the route of its road, for the use of the Government and of the public, was in violation of the contract it had made with the railroad company. UNITED STATES v. UNION PACIFIC RAILWAY. 49 Opinion of the Court. The fundamental question, therefore, is whether such a contract was permitted by the acts of Congress defining the obligations of railroad companies that had accepted the bounty of the Government. For the reasons we have given in the discussion of other parts of this case, we answer this question in the negative. Such a contract is not authorized by the fourth section of the Idaho act, or by the like section (19th) of the act of 1862. The “arrangements” authorized by those acts were not such as to admit of a contract that would disable the railroad company from entering upon the construction and maintenance itself of a telegraph line for the accommodation of the Government and of the public, or that would prevent the United States from requiring the railroad company to maintain and operate a telegraph line to be entirely controlled by itself, and which would be wholly independent of any telegraph line operated by corporations created under the laws of a State. And we may add what has been said in reference to the prior agreements of 1866, 1869, and 1871, namely, that no railroad company, operating a post road of the United States, over which interstate commerce is carried on, can, consistently with the act of July 24, 1866, bind itself, by agreement, to exclude from its roadway any telegraph company, incorporated under the laws of a State, which accepts the provisions of that act, and desires to use such roadway for its line in such manner as will not interfere with the ordinary travel thereon. On behalf of the telegraph company it is contended that it was beyond the power of Congress to so legislate as “ to impair the contracts, first, that between the United States and the several companies mentioned in the act of 1862; and, second, those between the railway company and this defendant.” We perceive no ground on which this contention can properly rest. It has already been fully examined. As we have seen, Congress in the act of 1862 expressly reserved the power not only to alter, amend, or repeal that act, but to add to its provisions. To what has already been said as to the power of Congress, under this reserved power, we may add, that the object of such reservation is to enable the legislative VOL. CLX—4 50 OCTOBER TERM, 1895. Opinion of the Court. department to protect the public interests, and “ to preserve to the State control over its contract with , the corporators,, which without that provision would be irrepealable and protected from any measure affecting its obligation.” Tomlinson v. Jessup, 15 Wall. 454, 457, 458. Another contention of the telegraph company is that for any failure or refusal by the railway company to comply with sections one and two of the act of August 7,1888, the remedy of the United States is an action at law by mandamus, and that equity is without jurisdiction to enforce a compliance with those sections. It cannot be doubted that the Government could lawfully proceed by mandamus against the railway company for the purpose simply of compelling it to perform any duty imposed by its charter or by statute. But that remedy would not afford the United States the full relief to which it is entitled. Here are agreements between the railway company and the telegraph company that are wholly inconsistent with the present claims of the Government. Until cancelled — because inconsistent with the act of 1888, and prejudicial to the rights of the Government and the public — by a decree to which the telegraph company is a party, those agreements constitute an obstacle in the way of the enforcement of that act, and the protection of those rights. In a mandamus proceeding by the Government against the railway company, the telegraph company could not properly be made a defendant, and no judgment in mandamus, as between the United States and the railway company, would conclude the rights of the telegraph company. The United States is certainly entitled to the interposition of equity for the cancellation of the agreements under which the telegraph company asserts rights inconsistent with the act of 1862 and the acts amendatory thereof, as well as with the act of 1888. Jurisdiction in equity being acquired for that purpose, the court, in order to avoid a multiplicity of suits, can proceed to a decree that will settle all matters in dispute between the United States, the railway company, and the telegraph company which relate to the general subject of telegraphic communication between the UNITED STATES v. UNION PACIFIC RAILWAY. 51 Opinion of the Court. , points named by Congress. Consequently a decree cancelling the agreements of 1866, 1869, 1871, and 1881, by reason of their being in the way of the full performance by the railway company of the duties imposed by the act of 1888, may also require the railway company to obey the directions of Congress as given in the last named act. v Indeed, in a proceeding by mandamus instituted against the railway company alone, it might be objected that a court of competent jurisdiction, in a suit brought by the telegraph company against the railroad company, had enjoined the latter, as between it and the telegraph company, from disregarding the agreement of 1881. Atlantic & Pacific TeL Co. v. Union Pacific Railway, 1 McCrary, 541; Western Union Telegraph Co. v. Union Pacific Railway, 3 Fed. Rep. 423; Same v. Same, 3 Fed. Rep. 721. It is true that the United States, with leave of court, might have intervened in that suit. But it was not bound to do so. It was entitled to institute its own suit, and bring before the court both companies, to the end that its rights might be declared and enforced by a comprehensive decree against both defendants. In Boyce v. Grundy, 3 Pet. 210, 215, this court said: “ It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” The circumstances of each case must determine the application of the rule. Watson v. Sutherland, 5 Wall. 74, 79. In Oelrichs v. Spain, 15 Wall. 211, 228, an objection was raised that the remedy at law was ample. The court, observing that the remedy at law was not as effectual as in equity, said, among other things, that a “direct proceeding in equity will save time, expense, and a multiplicity of suits, and settle finally the rights of all concerned in one litigation.” The final order in a proceeding by mandamus against the railway company would not conclude the rights of the telegraph company. Nor would a suit in equity by the telegraph company against the railway company conclude the rights of the United States. But a suit in equity by the United States against both companies for the purpose of an- 52 OCTOBER TERM, 1895. Opinion of the Court. nulling the agreements under which the telegraph company claims rights adverse to the United States, can embrace all the matters in controversy and authorize a comprehensive decree that will terminate all disputes among the parties as to such matters. Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 567. These principles are abundantly sustained by the authorities. In 1 Pomeroy’s Equity Jurisprudence, § 181, many adjudged cases are cited in support of the proposition that “if the controversy contains any equitable feature or requires any purely equitable relief which would belong to the exclusive jurisdiction, or involves any matter pertaining to the concurrent jurisdiction, by means of which a court of equity would acquire, as it were, a partial cognizance of it, the court may go on to a complete adjudication, and may thus establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority.” This principle was applied in Peck v. School Diet. &c., 21 Wisconsin, 516, 523. That was a suit to set aside a contract made by the officers of a municipality. The court held that the contract should be set aside, and the question arose whether the decree might not go farther and prevent the collection of the taxes assessed and levied for the purposes of the contract adjudged to be illegal. It was held that as the taxes were levied in order to carry the illegal contract into effect, their collection could be stayed as a proper subsidiary ground of relief, upon the principle that the jurisdiction of the court having once rightfully attached, it should be made effectual for all the purposes of complete relief. “ The court,” it was said, “ will not annul the contract and at the same time permit the officers of the district to collect the taxes to be afterwards recovered back by a multiplicity of suits at law.” We are of opinion that the Circuit Court properly adjudged that equity had jurisdiction to give full relief in respect of all matters in issue between the United States and the defendant companies. We perceive no substantial error in the decree passed by the Circuit Court. There are some minor provisions in each UNITED STATES v. WESTERN UNION TEL. CO. 53 Syllabus. * of the contracts annulled by it which may not be regarded as in themselves beyond the power of the contracting parties, nor inconsistent either with the duties enjoined upon the railway company by the act of 1888 or with the rights of the United States. But they are of so little practical importance, and are so inter woven with, and so difficult to be separated from, the provisions found to.be illegal and to stand in the way of the due execution of the act of Congress, that the Circuit Court properly adjudged that the contracts referred to should be set aside and annulled. The decree of the Circuit Court of Appeals of January 29, 1894, is reversed and set aside, and the decree of the Circuit Court of October 11, 1892, is affirmed. It is further adjudged by this court that the Circuit Court make a supplemental decree, enlarging the period within which the defendants may make such arrangements, adjustments, and changes as shall become necessary by reason of the annulling of the contracts of October 1, 1866, September 1, 1869, December 14, 1871, and July 1, 1881, and to carry out the provisions of the final decree of that court. Reversed. Mr. Justice Brewer took no part in the hearing or decision of this case on the present appeal. UNITED STATES v. WESTERN UNION TELEGRAPH COMPANY AND UNION PACIFIC RAILWAY COMPANY. error to the circuit court of the united states for the SOUTHERN DISTRICT OF NEW YORK. No. 19. Argued December 18, 1894. — Decided November 18, 1895. Although the United States was entitled to retain and apply, as directed by Congress, all sums due from the Government, on account of the use by the Telegraph Company, for public business, of the telegraph line con- 51 OCTOBER TERM, 1895. Opinion of the Court. structed by the Union Pacific Railway Company, the entire absence of proof as to the extent to which that line was, in fact, so used, renders it impossible to ascertain the amount improperly paid to, and without right retained by, tlie Telegraph Company, and subsequently divided between it and the Railroad Company. The case is stated in the opinion. Mr. Solicitor General Maxwell for plaintiff in error. Mr. Rusk Taggart for defendants in error. Mr. Justice Harlan delivered the opinion of the court. This action was brought by the United States to recover from the defendants in error the sum of $12,495.62,- which amount, it is alleged, was paid to the Western Union Telegraph Company on account of telegraph messages transmitted for the Government, after July 1, 1881, over telegraph lines operated by that company on and over the route of the Union Pacific Railway, and was wrongfully divided between the two defendants in disregard of the rights of the United States. The general ground upon which the Government rests this claim is that the sums paid by it on account of such messages were set apart for specific purposes by the acts of Congress under which the Union Pacific Railroad Company, the predecessor of the Union Pacific Railway Company, received the aid of the United States for the construction and maintenance of its railroad and telegraph lines. Pursuant to the direction of the Circuit Court a verdict was returned for the defendants, and judgment was rendered in their favor. The relations between the United States and the defendant company are fully shown in the opinion just rendered in the case of the United States v. Union Pacific Railway Company, et al., 160 U. S. 1. In order, however, that the issue in the present case may be readily understood without frequently recurring to that opinion, it is necessary to restate some of the facts disclosed in the former case. The Union Pacific Railroad Company was incorporated by the act of Congress of July 1, 1862, passed to aid in the con- UNITED STATES v. WESTERN UNION TEL. CO. 55 Opinion of the Court. straction of a railroad and telegraph line between the Missouri River and the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes. 12 Stat. 489, c. 120. That act granted to the company a right of way through the public domain for the construction of a railroad and telegraph, and, in aid of such construction granted also every alternate odd-numbered section of public land, not mineral, to the amount of five alternate sections per mile, within the limits of ten miles on each side of the road, and which had not been sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim had not attached. §§ 1, 2, 3, 4. For the purposes mentioned, the Secretary of the Treasury was required, upon the written certificate, by commissioners appointed by the President, of the completion and equipment of each forty consecutive miles of railroad and telegraph, as prescribed by the act, to issue to the company bonds of the United States for a named amount. And to secure the repayment to the United States of any bonds so issued and delivered, with the interest thereon paid by the United States, such issue and delivery were declared to constitute, ipso facto, a first mortgage on the whole line of the railroad and telegraph, together with the rolling stock, fixtures, and property of every kind belonging to the companv. § 5. By the sixth section of that act it was provided that “the grants aforesaid are made upon condition that said company shall pay said bonds at maturity, and shall keep said railroad and telegraph line in repair and use, and shall at all times transmit despatches over said telegraph line, and transport mails, troops, and munitions of war, supplies, and public stores upon said railroad for the Government, whenever required to do so by any Department thereof, and that the Government shall at all times have the preference in the use of the same for all the purposes aforesaid (at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service); and all compensation for services rendered for the Government shall be applied to the payment 56 OCTOBER TERM. 1895. Opinion of the Court. of said bonds and interest until the whole amount is fully paid. Said company may also pay the United States, wholly or in part, in the same or other bonds, Treasury notes, or other evidences of debt against the United States, to be allowed at par; and after said road is completed, until said bonds and interest are paid, at least five per centum of the net earnings of said road shall also be annually applied to the payment thereof.” The nineteenth section was in these words: “ The several railroad companies herein named are authorized to enter into an arrangement with the Pacific Telegraph Company, the Overland Telegraph Company, and the California State Telegraph Company, so that the present line of telegraph between the Missouri River and San Francisco may be moved upon or along- the line of said railroad and branches as fast as said roads and branches are built; and if said arrangement be entered into, and the transfer of said telegraph line be made in accordance therewith to the line of said railroad and branches, such transfer shall, for all purposes of this act, be held and considered a fulfilment on the part of said railroad companies of the provisions of this act in regard to the construction of said line of telegraph. And, in case of disagreement, said telegraph companies are authorized to remove their line of telegraph along and upon the line of railroad herein contemplated without prejudice to the rights of said railroad companies named herein.” This act also provided that the better to accomplish its object, “ namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the Government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may, at any time, having due regard for the rights of said companies named herein, add to, alter, amend, or repeal this act.” § 18. This act was amended by an act approved July 2,1864. 13 Stat. 356, c. 216. The latter act contained additional grants of lands and UNITED STATES v. WESTERN UNION TEL. CO. 57 Opinion of the Court. bonds, and by its fifth section provided that only “ one-half ” of the compensation for services rendered for the Government by the companies named in the act “ shall be required to be applied to the payment of the bonds issued by the Government in aid of the construction of said roads.” By the fifteenth section of that act the several companies authorized to construct the roads named were required “ to operate and use said roads and telegraph for all purposes of communication, travel, and transportation, so far as the public and the Government are concerned, as one continuous line ; and, in such operation and use, to afford and secure to each equal advantages and facilities as to rates, time, and transportation, without any discrimination of any kind in favor of the road or business of any or either of said companies, or adverse to the road or business of any or either of the others,” etc. 13 Stat. 356,358, 362. By an act approved May 7, 1878, known as the Thurman Act, 20 Stat. 56, c. 96, § 2, it was provided that “ the whole amount of compensation which may, from time to time, be due to said several railroad companies respectively for services rendered for the Government shall be retained by the United States, one-half thereof to be presently applied to the liquidation of the interest paid and to be paid by the United States upon the bonds so issued by it as aforesaid, to each of said corporations severally, and the other half thereof to be turned into the sinking fund hereinafter provided, for the uses therein mentioned.” The same act made it the dutv of the Attorney General of the United States to enforce, by proper proceeding, against the said several railroad companies, respectively or jointly, or against either of them, and others, “all the rights of the United States under this act and under the acts hereinbefore mentioned, and under any other act of Congress or right of the United States j and in any suit or proceeding already commenced, or that inay be hereafter commenced, against any of said companies, either alone or with other parties, in respect of matters arising under this act, or under the acts or rights hereinbefore mentioned or referred to, it shall be the duty of the court to determine the very right of the matter without regard to matters of form, 58 OCTOBER TERM, 1895. Opinion of the Court. joinder of parties, .multifariousness, or other matters not affecting the substantial rights and duties arising out of the matters and acts hereinbefore stated and referred to.” § 10. In 1865 the Union Pacific Railroad Company began to construct its road, and, in 1869, completed its main line from Omaha to Ogden. It also constructed a separate telegraph line on the north side of its right of way from a point at or near Omaha to Ogden. The Leavenworth, Pawnee and Western Railway Company, a corporation of Kansas, referred to in the ninth section of the act of 1862, and in the twelfth section of the act of 1864, c. 216 — and which at the date of the latter act was known as the Union Pacific Railway Company, Eastern Division, 12 Stat. 493, 13 Stat. 361, began, in 1865, to construct, and, in 1870, completed, a railroad from Kansas City to Denver, connecting at the latter point under the authority of an act of Congress, 15 Stat. 324, c. 127, with the Denver Pacific Rail-road and Telegraph Company, a corporation of Colorado, whose road extended from Denver to Cheyenne. In 1880, these three companies — the Union Pacific Railway Company, Eastern Division, having previously changed its name to that of Kansas Pacific Railway Company — consolidated their lines, property, and franchises, and became the Union Pacific Railway Company, a defendant in this action. As operated, at the time this action was brought, the Union Pacific Railway extended from a point at or near Council Bluffs to Ogden, and from Kansas City, by the way of Denver, to Cheyenne. The entire line from a point at or near Omaha to Ogden, and the line from Kansas City to Boaz, between Kansas City and Denver, was aided by the United States by grants of lands and by bonds; the line from Boaz to Denver, and from Denver to Cheyenne, by grants of land alone. The United States has never been reimbursed in full for the interest paid on these bonds, and if in this action the Government should recover the whole sum claimed by it, a large deficit would still remain over and above all payments made or credits given. UNITED STATES v. WESTERN UNION TEL. CO. 59 Opinion of the Court. On the 16th day of June, 1860, Congress passed an act to “facilitate communication between the Atlantic and Pacific States by electric telegraph.” 12 Stat. 41, c. 137. At the date of that act, the Western Union Telegraph Company owmed or operated lines extending eastward and southward from St. Joseph to Washington, New Orleans, New York, and other principal cities of the United States. Under the act of 1860, the Pacific Telegraph Company and the California State Telegraph Company began in 1861 to construct, and prior to 1863 had completed and put in operation, a telegraph line from St. Joseph, Missouri, by way of Omaha and Salt Lake City, to San Francisco, upon substantially the route afterwards adopted by the Union Pacific Railroad Company for its road between Omaha and Ogden. Proceeding under the nineteenth section of the act of July 1, 1862, above quoted, the Pacific Telegraph Company and the California State Telegraph Company transferred their lines from their prior location and reconstructed them upon the south side of the right of way of the Union Pacific Railroad Company, as rapidly as the latter constructed its road between Omaha and Ogden, and those companies or the Western Union Telegraph Company have ever since operated and maintained those lines. But this transfer was made without any arrangement with the railroad company, but under that provision of the act of 1862 declaring that, in case of disagreement, the telegraph companies “are authorized to remove their line of telegraph along and upon the line” of the railroad, without prejudice to the rights of the railroad companies named in that act. § 19. In 1864 the Pacific Telegraph Company was consolidated with, and in 1867 the California State Telegraph Company was leased to, the Western Union Telegraph Company. On the 1st day of September, 1869, the Union Pacific Railroad Company leased its line of telegraph to the Atlantic and Pacific Telegraph Company by an agreement of that date, which was supplemented by an agreement entered into on the 20th day of December, 1871. Under those agreements, which were examined in the case of United States v. Union Pacific 60 OCTOBER TERM, 1895. Opinion of the Court. Railway Company et al., just decided, the Atlantic and Pacific Telegraph Company operated the railroad telegraph lines until about February 1, 1881, when it was merged into the Western Union Telegraph Company by consolidation. Prior to July 2, 1864, the United States Telegraph Company began the construction of a telegraph line from Wyandotte, Kansas, westward, and was constructing it at the time the Leavenworth, Pawnee and Western Railroad Company began to build its road; and, under the act of July 2, 1864, known as the Idaho act, entitled “ An act for increased facilities for telegraph communication between the Atlantic and Pacific States and the Territory of Idaho,” 13 Stat. 373, c. 220, it removed its constructed line and located the same upon the right of way of the Leavenworth, Pawnee and Western Railroad Company, and continued to build and operate its line as the construction of that road progressed. This Idaho act authorized the several railroad companies named in the act of July 1, 1862, to enter into arrangements with the United States Telegraph Company, so that the line of telegraph between the Missouri River and San Francisco could be made upon and along the line of said railroad and branches as fast as that road and branches were built. If such arrangements were entered into, and the transfer of the telegraph line was made, in accordance therewith, to the line of the railroads and branches, such transfer should, for all purposes of the act referred to, be held and considered a fulfilment on the part of the railroad companies of the provisions of the act in regard to the construction of a telegraph line ; and in case of disagreement the telegraph company was authorized to remove its line of telegraph along and upon the line of railroad therein contemplated, without prejudice to the rights of the railroad companies. § 4. On the 27th day of February, 1866, the United States Telegraph Company transferred its telegraph lines, and the right to extend the same, to the Western Union Telegraph Company, and the latter built a telegraph line along the railroad last named, as fast as that road was constructed, and on October 1, 1866, the latter company, and the railroad company UNITED STATES v. WESTERN UNION TEL. CO. 61 Opinion of the Court. under the name of the Union Pacific Railway Company, Eastern Division, entered into an agreement pursuant to which that telegraph line was completed to Denver. The Leavenworth, Pawnee and Western Railroad Company constructed no line of telegraph along its road, but received the compensation prescribed by the several acts of Congress for the full performance of the conditions of those acts, namely, land and bonds for the road from Kansas City to Boaz, and lands for the road from Boaz to Denver. In Title LXV of the Revised Statutes will be found, substantially, all the provisions of the act of July 24,1866, entitled “ An act to aid in the construction of telegraph lines, and to secure to the Government the use of the same for postal, military, and other purposes,” 14 Stat. 221, c. 230, as well as some of the provisions of other acts relating to the same general subject. Those provisions are as follows: “§5263. Any telegraph company now organized, or which may hereafter be organized, under the laws of any State, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States, which have been or may hereafter be declared such by law, and over, under, or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. “§ 5264. Any telegraph company organized under the laws of any State shall have the right to take and use from the public lands through which its lines of telegraph may pass, the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of its lines of telegraph, and may preempt and use such portion of the unoccupied public lands subject to preemption through which their lines of telegraph may be located as may be necessary for their stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.” 62 OCTOBER TERM, 1895. Opinion of the Court. Section. 5265 forbids the transfer by any company to any other corporation, association, or person of the rights granted by the act of July 24, 1866, or by the above title. 5266. Telegrams between the several Departments of the Government and their officers and agents, in their transmission over the lines of any telegraph company to which has been given the right of way, timber, or station lands from the public domain shall have priority over all other business, at such rates as the Postmaster General shall annually fix. And no part of any appropriation for the several Departments of the Government shall be paid to any company which neglects or refuses to transmit such telegrams in accordance with the provisions of this section. “ § 5267. The United States may, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all companies acting under the provisions of the act of July 24, 1866, or under this title, at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster General of the United States, two by the company interested, and one by the four so previously selected.” Section 5268 provides that “ before any telegraph company shall exercise any of the powers or privileges conferred by law such company shall file their written acceptance with the Postmaster General of the restrictions and obligations required by law.” On the 7th of June, 1867, the Western Union Telegraph Company formally accepted the provisions of the act of July 24, 1866,'and since about January 1, 1873, the compensation it was entitled to receive for sending messages for the Government has been fixed by the Postmaster General. The Union Pacific Railway Company never accepted the provisions of the act of July 24, 1866, as to its telegraph line. On the 1st day of July, 1881, the Western Union Telegraph Company and the Union Pacific Railway Company entered into an agreement, under which the former operated all the telegraph lines named in it, and the provisions of which have been, and at the date this action was brought were being, carried out by both parties. UNITED STATES v. WESTERN UNION TEL. CO. 63 Opinion of the Court. The preamble of that agreement recites that it was made “ for the purpose of providing telegraphic facilities for the parties hereto, and of maintaining and operating the lines of telegraph along the railway company’s railroads in the most economical manner in the interest of both parties and for the purpose of fulfilling the obligations of the railway company to the Government of the United States and the public in respect to the telegraphic service required by the act of Congress of July 1, 1862, and the amendments thereto.” All the telegraph lines and wires covered by the agreement* belonging to or used by either party, were, for the purposes of the contract, to “ form part of the general system of the telegraph company ; ” and the railway company was to be protected by the telegraph company from the payment of all taxes levied and assessed upon the telegraph property belonging to either party. This agreement, by its terms, extended to all railroads and branches or extensions, then or thereafter owned or controlled by the railroad company, except railroads that might be subsequently acquired, on which the telegraph company already had a line in operation ; and to such roads the agreement was not to apply, except by mutual consent of the parties. The third paragraph of this agreement provided that “ the railway company, so far as it legally may, hereby grants and agrees to assure to the telegraph company the exclusive right of way on, along, upon and under the line, lands and bridges of the railway company and any extensions and branches thereof, for the construction, maintenance, operation, and use of lines of poles and wires, or either of them, or underground or other system of communication for commercial or public uses or business, with the right to put up from time to time or cause to be put up or constructed under the provisions of this agreement, such additional wires on its own or the railway company’s poles or such additional lines of poles and wires, or either, as well on its bridges as on its right of way, or to construct such underground lines as the telegraph company may deem expedient, doing as little damage and causing as little inconvenience to the railway company as is 64 OCTOBER TERM, 1895. Opinion of the Court. practicable, and the railway company will not transport men or material for the construction or operation of a line of poles and wire or wires or underground or other system of communication in competition with the lines of the telegraph company, party hereto, except at and for the railway company’s regular local rates, nor will it furnish for any competing line any facilities or assistance that it may lawfully withhold, nor stop its trains, nor distribute material therefor at any other than regular stations.” By article four of the agreement it was provided that the employés of the railway company “shall transmit over the lines owned, controlled, or operated by the parties hereto, all commercial telegraph business offered at the railway company’s offices, and shall account to the telegraph company exclusively for all of such business and the receipts thereon, as provided herein ; ” that “ the telegraph company shall have the exclusive right to the occupancy of the railway company’s depots or station-houses for commercial or public telegraph purposes as against any other telegraph company ; ” and “ that if any person or party, or any officer of the Government, tender a message for transmission over the railway telegraph lines between Council Bluffs and Ogden at any railway telegraph station between those points and require that the service be rendered by the railway company, the operator to whom the same is tendered shall receive and forward the same accordingly, at rates to be fixed by the railway company, to the point of destination if not beyond its own lines. . . . Provided, however, That the local receipts of the railway company on such message shall be divided between the parties hereto in the same manner and subject to the same conditions as provided in the tenth clause of this agreement.” The tenth clause provided that “ at all telegraph stations of the railway company its employés shall receive, transmit, and deliver such commercial or public messages as may be offered, and shall render to the telegraph company monthly statements of such business, and full accounts of all receipts therefrom, and the railway company shall cause all of such receipts to be paid over to the telegraph company monthly ; ” and the telegraph UNITED STATES u WESTERN UNION TEL. CO. 65 Opinion of the Court. company agreed “ to return to the railway company monthly one-half of the cash receipts at telegraph stations maintained and operated by and at the expense of the railway company.” The telegraph company agreed to furnish at its own expense all blanks and stationery for commercial or public telegraph business, and all instruments, main and local batteries and battery material for the operation of its own and the railway company’s wires and offices. It is also covenanted to save the railway company harmless and indemnify it against loss or damage from neglect or failure in the transmission or delivery of messages “ for any person doing business with said telegraph company, or on account of any other public or commercial telegraph business ” for which the railway company was to account. No record was kept of business done under this agreement of 1881, and the parties have stipulated, that “ it is now impossible to prove over what particular wire or wires the messages set out in the plaintiff’s bill of particulars were actually transmitted, but a part were sent over what, prior to 1881, were the wires of the railroad company, and the balance over the wires owned by the telegraph company.” Since the contract of 1881, the telegraph company and the railway company have not maintained distinct offices or employed different sets of telegraph operators except at some of the larger towns and cities, where the Western Union Telegraph Company has, in addition, established separate offices for the transaction of commercial business away from the line of the railway, but the offices have been in common and the same set of operators have done the work required by both the telegraph company and the railway company. In the agreed statement of facts it appears that “the amount of messages set out in the plaintiff’s bill of particulars correctly states the date of each message therein set forth; the sender of the same, and from what point to what point the same was transmitted by the Western Union Telegraph Company; the amount collected by the Western Union Telegraph Company for the transmission of the same; the proportionate amount of the whole sum thus paid to the Western Union VOL. CLX—5 66 OCTOBER TERM, 1895. Opinion of the Court. Telegraph Company which was for the bonded portion of the telegraph lines along the railways of the Union Pacific Railway Company, such sum being such proportionate amount of the whole amount paid as the distance along the bonded portion of the telegraph along said line or lines of railway bears fo the whole distance the message was transmitted from the point of origin to the point of destination; that the compensation for each of the messages was computed and paid for as one entire service and at the then ruling rate for such entire distance fixed by the Postmaster General of the United States, in accordance with section 5266 of the Revised Statutes of the United States; all of said messages were delivered to the Western Union Telegraph Company by the agent or officer of the Government sending the same, written upon the Western Union Telegraph Company’s blanks, and directed to the receiver of such message at the point of destination and without any direction to transmit the same over the bonded portion of the line of telegraph of the Union Pacific Railway Company for the whole or any part of the distance,but it was known to the Western Union Telegraph Company, from the character of the said messages, that they were from one officer or agent of the Government to another. That at all the times the said messages were thus transmitted by the Western Union Telegraph Company at the rates annually fixed by the Postmaster General of the United States, the ordinary rates, known as commercial rates, charged to other persons for transmitting like messages for the same distances were very much in excess of the rates fixed by the Postmaster General; that the ordinary or commercial rate upon the bonded portions of the lines of telegraph situated along the lines of railway of the Union Pacific Railway Company was likewise very much in excess of the rates fixed by the Postmaster General of the United States during the period covered by the account in this action. That as to a large number of messages included in said bill of particulars and known as Signal Service reports, the same were transmitted under special arrangement and differently from other classes of messages, upon what were known as ‘ circuits,’ with ‘ drops at all places receiving the said Signal Service reports. The UNITED STATES v. WESTERN UNION TEL. CO. 67 Opinion of the Court. method of doing said business was as follows: As many places as the Chief Signal Service Officer desired should receive the said Signal Service report were connected upon one continuous line of telegraph called a ‘circuit,’ and the said reports were then sent over this wire, and at each point where said reports were received an operator took the said reports; each of said points thus receiving the report being called a ‘ drop,’ and all of said points receiving the said reports at the same time; that by reason of this method of sending reports, a specially low rate was made therefor, the said rate being fixed by the Postmaster General in the circulars issued annually, and upon the basis of amount of matter and number of drops, and extent of circuits. That the circuits for the transmission of said Signal Service reports were made up between the points named in the account in this action, and included intermediate points or drops in each case; that the amount sought to be recovered in this action is such proportionate amount of the whole amount paid as the distance along the bonded portion of the telegraph lines upon the said line or lines of railway bears to the whole distance over which such messages or reports were sent.” Such is the case made by the record now before the court. It is clear, under the acts of 1862, 1864, and 1878, that the Government was'entitled to retain, and to apply as directed by Congress, all sums due on account of services rendered in its behalf, by any railroad company named in those acts, that had received the aid of the United States in the construction of its railroad and telegraph lines. All such sums were set apart by Congress for the payment of the principal and interest of any bonds delivered by the United States to such company. The Government could, therefore, have retained and applied, as in the acts of Congress required, all sums due from it on account of messages sent or received by it over the telegraph line constructed by the Union Pacific Railroad Company. Sinking Fund cases, 99 U. S. 700. No agreement between that company and the Western Union Telegraph Company, transferring to the latter the control of the tele- 68 OCTOBER TERM, 1895. Opinion of the Court. graph line constructed by the railroad company, could affect the rights of the United States. If it distinctly appeared that the amount sued for was only the aggregate of sums originally due from the United States, on account of public messages passing over the telegraph lines constructed by the Union Pacific Railroad Company, we should have no difficulty in sustaining the present claim of the Government. But no such state of case is presented by the record. It does not even appear that the Government, prior to the period covering the account in suit, requested the telegraph company to so keep its books as to show what messages sent or received on public business were transmitted over the telegraph line constructed by the railroad company on its route. Nor does it appear that any such account was. kept by the Government. It is agreed to be now impossible to show over what particular wire or wires — whether those belonging to the Western Union Telegraph Company or those belonging to the Union Pacific Railway Company — the messages set out in the Government’s bill of particulars were, in fact, transmitted. Nothing more definite appears than that “a part”—how much cannot be now known — were sent over the wires originally established by the railroad company, and “ the balance ” — how much cannot be shown — over the wires owned by the telegraph company. It is because of the impossibility of now distinguishing between these two classes of messages, that this action proceeds,, and can only proceed, upon the theory that the length which the telegraph line, constructed Jy the railroad company, bears to the entire distance, in whatever part of the United States, from the point of origin of a telegraph message to the point of its destination, measures the proportion which might have been rightfully retained by the Government of the entire sum earned by the telegraph company for transmitting and delivering such messages. According to this theory, the presumption must be indulged that every message delivered to the telegraph company for transmission, and which passed over the whole or some part UNITED STATES v. WESTERN UNION TEL. CO. 69 Opinion of the Court. of the general route of the Union Pacific Railway, passed over the telegraph line constructed on the north side of that route by the railroad company, but operated by the telegraph company, rather than over the line, on the south side of that route, owned by the telegraph company. No such presumption can be justified upon any principle of right or justice. The telegraph company had a line of its own on the right of way of the railway company, with the consent of the United States. It accepted the provisions of the act of Congress giving the Postmaster General authority to fix the rates to be charged for any business transacted for the Government. But it neither expressly nor impliedly agreed that, when no directions in the matter were given by the representative of the Government, it would transmit all messages, on behalf of the Government, from or to points on either side of the route of the Union Pacific Railway, over the telegraph line constructed by the railroad company, rather than over the line owned by itself. In the absence of such directions, the telegraph company was at liberty to send such messages over its own line at the rates established by the Postmaster General. If it did so, the Government was probably benefited rather than injured; for the rates fixed by the Postmaster General were less than the ordinary rates, known as commercial rates, charged against private persons, and which the railway company, by its charter, was entitled to charge for public messages sent over its telegraph line. If, in the absence of any direction not to do so, the telegraph company actually used, for ¿he purpose of transmitting a public message, the line constructed by the railroad company, there can be no doubt that the sum due therefor could be retained by the United States and applied as indicated in the act of 1878; for the telegraph company, notwithstanding the agreement of July 1, 1881, would be bound to take notice of the fact that that telegraph line was constructed with the aid of the Govern-ment, and that its earnings on account of public business were dedicated by Congress to specific purposes. It results that, although the United States was entitled to retain and apply, as directed by Congress, all sums due from 70 OCTOBER TERM, 1895. Statement of the Case. the Government, on account of the use by the telegraph company, for public business, of the telegraph line »constructed by the railroad company, the entire absence of proof as to the extent to which that line was, in fact, so used, renders it impossible to ascertain the amount improperly paid to, and without right retained by, the telegraph company, and subsequently divided between it and the railroad company. Upon this ground, we adjudge that the court below did not err in directing a verdict for the defendants. The judgment is Affirmed. GOLDSBY, alias Cherokee £¡11, v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 620. Submitted October 21, 1895. —Decided December 2, 1895. There is nothing in this case to take it out of the ruling in Isaacs v. United States, 159 U. S. 487, that an application for a continuance is not ordinarily subject to review by this court. In the trial of a person accused of crime the exercise by the trial court of its discretion to direct or refuse to direct witnesses for the defendant to be summoned at the expense of the United States is not subject to review by this court. Moore v. United States, 150 U. S. 57, 61, affirmed and applied to a question raised in this case. While it is competent, if a proper foundation has been laid, to impeach a witness by proving statements made by him, that cannot be done by proving statements made by another person, not a witness in the case. It is within the discretion of the trial court to allow the introduction of evidence, obviously rebuttal, even if it should have been more properly introduced in the opening, and, in the absence of gross abuse, its exercise of this discretion is not reviewable. Rev. Stat. § 1033 does not require notice to be given of the names of witnesses, called in rebuttal. If the defendant in a criminal case wishes specific charges as to the weight to be attached, in law to testimony introduced to establish an alibi, he may ask the court to give them; and, if he fails to do so, the failure by the court to give such instruction cannot be assigned as error. The plaintiff was indicted on the 8th of February, 1895, GOLDSBY v. UNITED STATES. 71 Statement of the Case. for the murder of Ernest Melton, a white man and not an Indian. The crime was charged to have been committed at the “ Cherokee Nation in the Indian country on the 18th day of November, 18y4.” Prior to empanelling the jury on the 23d of February, 1895, the accused filed two affidavits for continuance until the next term of court. The first, filed on the 12th of February, 1895, based on the ground that for some time prior to the finding of the indictment the defendant had been in jail, was sick, and unable properly to prepare his defence, and that he was informed if further time were given him, there were witnesses, whose names were not disclosed in the application, who could be produced to establish that he was not guilty as charged. This was overruled. The second was filed on the 22d day of February, upon the ground that four witnesses, whom the court had allowed to be summoned at government expense, were not in attendance, and that there were others, whose names were given, who could prove his innocence, and who could be produced if the case were continued until the next term of court; the affidavit made no statement that the four witnesses had been actually found at the places indicated, and gave no reason for their non-attendance, and asked no compulsory process to secure it. Before the trial the accused filed three requests for leave to summon a number of witnesses at government expense. The first was made on the 12th of February, and asked for twenty-five ; the affidavit made by the accused gave the names of the witnesses and the substance of what was expected to be proven by them. The court allowed fifteen. Of the ten witnesses disallowed, two were government witnesses, and were already summoned ; seven were the wives of witnesses whom the court ordered summoned, the affidavit stating that the husband and wife were relied on to prove the same fact; the other witness disallowed, the affidavit disclosed, was also relied on simply to corroborate the testimony of some of the witnesses who were allowed. The second request was made on the 16th of February, asking for six witnesses, all of whom were ordered to be summoned. The third request was made on the 19th of February for two additional witnesses, one Harris and wife. 72 OCTOBER TERM, 1895. Opinion of the Court. This application was refused, both being government witnesses. On the trial the uncontradicted testimony on behalf of the government was that at about noon, on the day stated, two men robbed a store at a town in the Indian Territory, and that during the course of the robbery the murder was committed by one of those engaged therein. The testimony for the prosecution tended to identify the accused not only as having been one of the robbers, but also as being the one by whom the murder was committed. The testimony for the defence tended to disprove that of the government, which identified the accused, and tended, moreover, by proof of an alibi, to demonstrate the impossibility of the offence having been committed by him. There was a verdict of guilty as charged. The defendant brought the case by error here. Mr. William M. Cravens for plaintiff in error. Mr. Assistant Attorney General Whitney for defendant in error. Me. Justice White, after stating the case, delivered the opinion of the court. There are fourteen assignments of error. Two address themselves to the refusal of the court to grant the applications for continuance; three to the action of the court in denying the request to summon certain witnesses at government ex pense; four relate to rulings of the court, admitting or rejecting testimony; and, finally, five to errors asserted to have been committed by the court in its charge to the jury. We will consider these various matters under their respective headings. In a recent case we said : “ That the action of a trial court upon an application for continuance is purely a matter of discretion not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question.” Isaacs v. United States, 159 U. S. 487, and authorities there cited. We can see nothing in the action on the applications for continu- GOLDSBY v. UNITED STATES. 73 Opinion of the Court. ance, which we have recited in the statement of facts, to take it out of the control of this rule. The contention at bar that because there had been no preliminary examination of the accused, he was thereby deprived of his constitutional guarantee to be confronted by the witnesses, by mere statement demonstrates its error. There was likewise no error in the action of the court in relation to the various requests to summon witnesses at government expense; on the contrary, the fullest latitude was allowed the accused. Were it otherwise, the right to summon witnesses at the expense of the government is by the statute, Rev. Stat. § 878, left to the discretion of the trial court, and the exercise of such discretion is not reviewable here. Crumpton v. United States, 138 U. S. 361, 364. There was proof showing that at the time of the robbery a watch charm had been taken by the accused from one of the persons present in the house which was robbed. This charm was produced by a witness for the prosecution, who testified that it had been given him by one Verdigris Kid, whom the testimony tended to show had participated in the robbery ; that this giving of the charm to the witness had taken place in the presence of the accused; that at the time it was given the fact of the robbery was talked of by the accused, he saying: “ That he had made a little hold up and got about one hundred and sixty-four dollars as well as I remember, and that he had shot a fellow, I believe.” To the introduction of the watch charm objection was made. We think it was clearly admissible and came directly under the rule announced in Moore v. United States, 150 U. S. 57, 61. John Schufeldt, the son of the man whose store was robbed, in his testimony on behalf of the government, identified the accused not only as one of the robbers but also as the one by whom the murder was committed. He was asked, on cross-examination, whether he had heard his father, in the presence of a Mr. John Rose, say that the robbers were, one an Indian,and the other a white man. He answered that he did not recollect hearing him make such a statement. On the opening of the defendant’s case, Schufeldt was recalled for further cross-examination, and the question was again asked 74 OCTOBER TERM, 1895. Opinion of the Court. him, he replying to the same effect, thereupon the defence put Rose upon the stand to testify to the conversation had by him with the father of Schufeldt in his (John Schufeldt’s) presence, the father not being a witness in the cause. On objection the testimony was excluded on the ground, that whilst it would be competent if the proper foundation had been laid to impeach the witness, by proving statements made by him, it was incompetent to affect his credibility by proving statements made by another person, not a witness in the case. The ruling was manifestly correct. The government called a witness in rebuttal, who was examined as to the presence of the defendant at a particular place, at a particular time, to rebut testimony which had been offered by the defendant to prove the alibi upon which he relied. This testimony was objected to on the ground that the proof was not proper rebuttal. The court ruled that it was, and allowed the witness to testify. It was obviously rebuttal testimony; however, if it should have been more properly introduced in the opening, it was purely within the sound judicial discretion of the trial court to allow it, which discretion, in the absence of gross abuse, is not reviewable here. Wood v. United States, 16 Pet. 342, 361; Johnston v. Jones, 1 Black, 209, 227; Commonwealth v. Moulton, 4. Gray, 39; Commonwealth v. Dam, 107 Mass. 210; Commonwealth v. Meaney, 151 Mass. 55; Gaines v. Commonwealth, 50 Penn. St. 319; Leighton v. People, 88 N. Y. 117; People v. Wilson, 55 Michigan, 506, 515; Webb v. State, 29 Ohio St. 351; Wharton’s Criminal Pleading and Practice, § 566; 1 Thompson on Trials, § 346, and authorities there cited. During the course of defendant’s evidence, and before he had closed his case, testimony was elicited on the subject of the defendant’s hat, the purpose of which tended to disprove some of the identifying evidence given on the opening of the case. When this was adduced the prosecuting officer notified the defence that he would be obliged to call in rebuttal one Heck Thomas. At a subsequent period in the trial Heck Thomas was sworn. As he was about to testify objection was made, as follows: GOLDSBY v. UNITED STATES. 75 Opinion of the Court. “Counsel for defendant: We were going to object to Mr. Thomas being sworn. We now object to his being examined as a witness, on the ground that under the statute the defendant is required to have forty-eight hours’ notice of witnesses to be used by the government, and we have had no notice of an intention to use Mr. Thomas as a witness. “ The Court: The court has always held if it is in rebuttal it is absolutely impossible to give the defendant notice of the witness. If that is the rule, that we have to give forty-eight hours’ notice to the defendant of witnesses to be used in rebuttal, it would simply amount to a defeat of justice and a defeat of a trial altogether. The reason of the rule is very manifest, but when it comes to facts that are purely in rebuttal no notice can be given, because it is impossible. “Counsel for defendant: Of course I understand the position of the court, but we simply want to discharge what we thought our duty in this matter, and we except to any statement of what the witness will prove, and we except to the use of the witness. We do not think it is competent either in chief or rebuttal, and therefore we waive an exception to the whole pleading. “ The Assistant District Attorney: The facts I want to establish by Mr. Thomas are about these: That he, in attempting to capture the defendant, had a fight with him on the 16th of November. A witness for the defendant was on the stand and the court remembers what he says about the time he saw the defendant, a week after the Frank Daniel fight. We propose to show the date of that fight, which will be the 16th of November, and also as to the kind of hat the defendant was wearing, and that he had at that time a wire cutter in his possession. “ Counsel for defendant: The wire cutter part would certainly not be rebuttal. “The Assistant District Attorney: Yes, it is, because they have introduced evidence to show that this country was covered with wire fences.” Conceding that the facts as to which the witness was called to testify were matters of rebuttal, the absence of the notice 76 OCTOBER TERM, 1895. Opinion of the Court. required, Rev. § Stat. 1033, did not disqualify him. The provision of the statute is that “ when any person is indicted for treason, a copy of the indictment and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment, . . . shall be delivered to him at least three entire days before he is tried for the same.” The next sentence in the section makes the foregoing applicable to capital •cases, but reduces the time to two entire days before the trial. The words “ for proving the indictment,” and the connection in which they are used, clearly refer to the witnesses relied upon by the prosecution to establish the charge made by the indictment. They do not extend to such witnesses as may be rendered necessary for rebuttal purposes resulting from the testimony introduced by the accused in his defence. Indeed, that they do not apply to rebuttal is obvious from the very nature of things, for if they did, as was well said by the trial judge, it would be impossible to conduct any trial. Upon state statutes containing analogous provisions the authorities are free from doubt. State v. Gillick, 10 Iowa, 98; State v. Ruthven, 58 Iowa, 121; State n. Huckins, 23 Nebraska, 309; Gates n. The People, 14 Illinois, 433; Logg v. The People, 92 Illinois, 598; State n. Cook, 30 Kansas, 82 ; Hill v. The People, 26 Michigan, 496. That the testimony, as to the hat, sought to be elicited from the witness Thomas was purely rebuttal is equally clear. This is also the case with regard to the testimony as to the wire cutter. The defence in its attempt to make out the alibi introduced testimony tending to show that the defendant at a given time was many miles from the place of the murder, and that by the public road he could not have had time to reach this point, and have been present at the killing. In order to prove that he could not have reached there by any other more direct route than the public road, one of his witnesses had testified that the country was covered with wire fences. It was competent to show in rebuttal of this statement that the accused was in possession of a wire cutter, by which the jury could deduce that it was possible for him to travel across the •country by cutting the fences. Of course the weight to be WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 77 Syllabus. attached to the proof was a matter for the jury, but it was clearly rebuttal testimony, and its admissibility as such is covered by the ruling in Moore n. United States, ubi supra. The four errors assigned as to the charge of the court do. not complain of the charge intrinsically but are based upon the assumption that, although correct, it was misleading and tended to cause the jury to disregard the testimony offered by the defendant to establish an alibi. But the charge in substance instructed the jury to consider all the evidence and all the circumstances of the case, and if a reasonable doubt existed to acquit. If the accused wished specific charges as to the weight in law to be attached to testimony introduced to establish an alibi, it was his privilege to request the court to give them. No such request was made, and, therefore, the assignments of error are without merit. Texas & Pacific Railway v. Volk, 151 U. S. 73, 78. Affirmed. WASHINGTON & IDAHO RAILROAD COMPANY v. CŒUR D’ALENE RAILWAY AND NAVIGATION COMPANY. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 585. Argued November 18,14,1895. — Decided December 2,1895. An action commenced May 27, 1889, in the District Court of the Territory of Idaho, before the admission of Idaho as a State, by a corporation organized under the laws of Washington Territory, against a corporation organized under the laws of Montana Territory, and against a railroad company organized under the laws of the United States, upon which latter company service had been made and filed, was, after the admission of Idaho as a State, removable to the Circuit Court of the United States for that circuit both upon the ground of diversity of citizenship of the territorial corporations, and upon the ground that the railroad company was incorporated under a law of the United States ; and, so far as the latter ground of removal is concerned, it is not affected by the fact that the railroad company afterwards ceased to take an active part in the case, as the jurisdictional question must be determined by the record at the time of the transfer. The provision in the act of March 3, 1875, c. 152, 18 Stat. 482, granting the 78 OCTOBER TERM, 1895. Statement of the Case. right of way through the public lands of the United States to any railroad duly organized under the laws of any State or Territory, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, plainly means that no corporation can acquire a right of way upon a line not described in its charter, or articles of incorporation. When a court of law is construing an instrument, whether a public law or a private contract, it is legitimate, if two constructions are fairly possible, to adopt that one which equity would favor. On May 15, 1889, the Washington and Idaho Railroad Company, describing itself as a corporation duly organized under the laws of Washington Territory, brought an action of ejectment in the District Court of the First Judicial District of the Territory of Idaho against the Cœur d’Alene Railway and Navigation Company, as a corporation duly organized under the laws of Montana Territory and the Northern Pacific Railroad Company, as a corporation duly organized under the laws of the United States. The complainant alleged that, on the 10th day of July, 1887, the plaintiff was lawfully possessed, as owner in fee simple, of a certain tract of land situated in Shoshone County, Idaho Territory, being the right of way of plaintiff’s railroad, consisting of a strip of land two hundred feet in width and about four thousand feet in length ; that the defendant, the Cœur d’Alene Railway and Navigation Company, on the 1st day of August, 1887, entered into possession of the demanded premises, and ousted and ejected the plaintiff therefrom; that the defendant, the Northern Pacific Railroad Company, claimed to be in possession of said premises as a tenant of the Cœur d’Alene Railway and Navigation Company, and was actually in the possession of said premises at the time of the institution of the suit ; that the value of the rents, issues, and profits of the said premises while the plaintiff was excluded therefrom is five thousand dollars ; that the plaintiff was still the owner in fee simple and entitled to the possession of said premises ; and plaintiff demanded judgment against the said defendants for the possession of the demanded premises, and for the sufti of six thousand dollars as damages. A writ of summons against the defendants was sued out WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 79 Statement of the Case. and, on the 27th day of May, 1889, was returned as served on the said defendants, by the delivery of a copy thereof to their authorized agent. On May 31, 1889, the separate answer of the Cœur d’Alene Railway and Navigation Company was filed, denying the plaintiff’s title, and claiming that defendant had, in good faith, and without any knowledge that the plaintiff claimed any interest therein, entered into possession of the described land and, in the belief that it was the owner thereof, had constructed thereon its railroad and its depot, at an expense exceeding seven thousand dollars ; that the plaintiff knew that the defendant was constructing its railroad and depot as aforesaid, and permitted the same to be done without making any claim to said premises, wherefore defendant claimed judgment that the plaintiff should take nothing by the action; that the plaintiff should be declared to be estopped from claiming title to said premises ; and that the defendant should have such other and further relief as should be just and equitable. On the 3d day of July, 1890, by virtue of an act of Congress of that date, the said Territory of Idaho became a State ; and on August 27, 1890, the defendants filed a petition in the District Court of the First Judicial District of the State of Idaho, praying for the removal of said case to the Circuit Court of the United States, Ninth Circuit, in and for the District of Idaho ; and the case was so proceeded in that, on December 6, 1892, a final judgment was entered, adjudging that the plaintiff, the Washington and Idaho Railroad Company, should take nothing by the action, and that the defendant, the Cœur d’Alene Railway and Navigation Company, should have judgment against the said plaintiff for its costs. The trial in the Circuit Court was by the court, a jury having been waived by both parties. The court made the following findings of facts : “First. That on the 6th day of July, 1886, the defendant, the Cœur d’Alene Railway and Navigation Company, filed its articles of incorporation in the office of the secretary of the Territory (now State) of Montana, and also filed in the office of the county clerk and recorder of the county of Lewis 80 OCTOBER TERM, 1895. Statement of the Case. and Clarke, in said Territory, a certified copy of its said articles of incorporation, which articles of incorporation are, in words and figures, following, to wit : “ ‘ Territory of Montana, ) County of Lewis and Clarke, I ‘“We, Daniel C. Corbin, Samuel T. Hauser, Anton H. Holter, of the city of Helena, in the county of Lewis and Clarke, Territory of Montana ; Stephen S. Glidden, of Spokane Falls, Washington Territory; James F. Wardner, of Wardner, in the Territory of Idaho ; James Monaghan, of Cœur d’Alene. Idaho Territory ; and Alfred M. Esler, of said Helena, Montana, do by these presents, pursuant to and in conformity with article 3 of chapter 15 of the Revised Statutes of Montana, entitled “ railroad corporations,” and all acts supplemental thereto or amendatory thereof, associate ourselves together and form a corporation for the purpose of locating, constructing, maintaining, and operating railroads in the Territories of Montana and Idaho, and to that end we do hereby certify as follows : “ ‘ First. The name of such corporation by which it shall be known shall be “ The Cœur d’Alene Railway and Navigation Company.” “ ‘ Second. The termini of said railroad are to be located in the county of Missoula, Territory of Montana, and in the counties of Kootenai and Shoshone, in the Territory of Idaho, and, if said corporation shall so determine, termini may also-be located in the county of Nez Perces, in said Territory of Idaho ; said railroad shall pass through said counties of Missoula, Kootenai, and Shoshone, and if said corporation shall so determine, then said railroad shall also pass through said county of Nez Perces, and the general route of said railroad shall be as follows : Commencing at or near the town of Thompson’s Falls, in said county of Missoula, or at some convenient point between said Thompson’s Falls and the western boundary line of said Territory of Montana ; thence running westerly or southwesterly to that certain tributary of Cœur d’Alene River known as the South Fork ; thence down the South Fork and Cœur d’Alene River to Old Mission, connecting with steamboats or other water craft, to be owned and WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 81 Statement of the Case. operated by said corporation, said steamboats or other craft to ply between said Old Mission and the town of Cœur d’Alene ; and, if said corporation shall so determine, then said railroad shall again commence at said town of Cœur d’Alene, and run northwesterly to Rathdrum, in said county of Kootenai, or such point on the line of the Northern Pacific railroad between Rathdrum and the western boundary of Idaho Territory as said corporation may hereafter determine, with the right and privilege, if said corporation shall see proper, to run a branch or extension of said road in a southerly direction from said Shoshone County to the said county of Nez Perces; said steamboats or other water craft between the points in that behalf above specified to be used in connection with and as constituting a part of said railroad. “ ‘ Third. The amount of capital stock necessary to construct such roads, including said connections, is five hundred thousand dollars, divided into five thousand shares of one hundred dollars each. “ ‘ Fourth. The principal place of business of said corporation in the Territory of Montana shall be at Helena, in the county of Lewis and Clarke, and principal place of business of said corporation in the Territory of Idaho shall, until otherwise fixed by the board of directors of said corporation, be at Cœur d’Alene, in the said county of Kootenai.’ “ Second. That the line of route of the railroad of the said Cœur d’Alene Railway and Navigation Company, as described in said article of incorporation, passes over and includes the ground in controversy in this action. “Third. That on the 20th day of July, 1886, the defendant, the Cœur d’Alene Railway and Navigation Company, filed in the office of the Secretary of the Interior, at Washington, D- C., a certified copy of its said articles of incorporation, and proofs of its organization under the laws of the Territory (now State) of Montana, which certified copy of articles of incorporation and proofs of organization were duly approved on that day by the honorable Secretary of the Interior. “Fourth. That in the summer and fall of 1886 the de- VOL. clx—6 82 OCTOBER TERM, 1895. Statement of the Case. fendant, the Cœur d’Alene Railway and Navigation Company, constructed its railroad over said line of route as described in said articles of incorporation, from the said Old Mission up the main Cœur d’Alene River to the town of Kingston, and thence up the South Fork of the Cœur d’Alene River to the town of Wardner Junction, a distance of about fourteen miles ; and that in the month of October, 1886, the said defendant, the Cœur d’Alene Railway and Navigation Company, for the purpose of extending its line of railroad, caused a survey to be made for its said line of railroad from said Wardner Junction, up the said fork of the Cœur d’Alene River, over the line described in its said articles of incorporation, through the towns of Wallace and Mullen, and marked the centre line of said road upon the ground by planting stakes at each station at one hundred feet, and at such other points as there were angles in the line, so that the line of route of said road could be readily traced upon the ground, and that the said surveying and marking of said line was completed on the 31st day of October, 1886. That in making said survey the engineers of said Cœur d’Alene Railway and Navigation Company ran three lines through said town of Wallace, called lines ‘A,’ ‘ B,’ and ‘ C,’ said lines ‘ A ’ and ‘ B ’ both being on the south side of the South Fork of the Cœur d’Alene River, and the said line ‘ C ’ being on the north side of said river, and being the line upon which the railroad of the Cœur d’Alene Railway and Navigation Company was afterwards constructed, and upon the ground now in controversy in this action. That in the month October, 1886, and about one week after the commencement of the said survey by the engineers of the said Cœur d’Alene Railway and Navigation Company, W. H. Burrage, an engineer, with a party of assistants claiming to be acting for the plaintiff, commenced surveying a line of route for a railroad from near the town of Wardner, up the South Fork of the Cœur d’Alene River, to the said town of Mullen, and that, in making said survey, the said Burrage and the party assisting him were several days and several miles behind the engineers surveying for the defendant, the Cœur d’Alene Railway and Navigation Company ; and that in surveying their WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 83 Statement of the Case. line through the town of Wallace, said Burrage surveyed the same on the north side of said river and over the ground in controversy ; and that said Burrage and party also marked their line in a similar manner to what the engineers of the Cœur d’Alene Railway and Navigation Company had done, and that said Burrage and party completed their survey on the 5th day of November, 1886, and that said portion of said line run by said Burrage over the ground in controversy was run on the 28th day of October, 1886, and that said line ‘ C ’ run by the engineers of the said Cœur d’Alene Railway and Navigation Company over the land in controversy was run on the 29th day of October, 1886 ; and that all of the parts of the line of the Cœur d’Alene Railway and Navigation Company, except said line ‘ C,’ were run and marked prior to the line run by the said Burrage, said line ‘ C ’ being run by the engineers of the Cœur d’Alene Railway and Navigation Company as an amendment after they had completed the survey to the town of Mullen. “Fifth. That in the summer and fall of 1887 the defendant, the Cœur d’Alene Railway and Navigation Company, extended its road from the town of Wardner Junction over its line of survey, a point about one mile east of the town of Wallace, and over said line ‘ C,’ the ground in controversy in this action, through the town of Wallace; and at all times thereafter, up to and at the time of the commencement of this action, occupied and used the same as a railroad and for railroad purposes ; and at the time of the commencement of this action had its roadbed and track, and side tracks and depot thereon, and was using the same exclusively for railroad purposes. “ Sixth. That at all the times above mentioned the lands in controversy, and all other lands along the line of said railroad of the defendant, the Cœur d’Alene Railway and Navigation Company, as described in its articles of incorporation, were unsurveyed public lands of the United States. “Seventh. That on the 7th day of July, 1886, the articles of incorporation of the plaintiff, the Washington and Idaho Railroad Company, were filed in the office of the secretary of the Territory (now State) of Washington ; that by said articles 84 OCTOBER TERM, 1895. Statement of the Case. of incorporation so filed the plaintiff was authorized to construct a railroad from the town of Farmington, in Washington Territory, by the most practical route in general northerly direction, to a point at or near the town of Spokane Falls (now Spokane), in said Washington Territory, together with the following branch lines tributary thereto : From a junction with the said main line at the forks of Hangman Creek, near Lone Pine, in said Washington Territory, in a general northeastern direction, across the Cœur d’Alene Indian reservation, to a point near the mouth of St. Joseph’s River on Cœur d’Alene Lake ; thence in a northerly direction along the east side of Cœur d’Alene Lake to the Cœur d’Alene River ; thence in a general easterly direction to Cœur d’Alene River; thence in a general easterly direction to Cœur d’Alene mission; thence in a southeasterly direction, by the valley of the South Fork of the Cœur d’Alene River to Wardner, in Idaho Territory. Second. From a junction with said main line, at or near the town of Spangle, in Washington Territory, in a generally northeasterly direction, to a point on Cœur d’Alene Lake, about five miles north of the mouth of the Cœur d’Alene River, in said Idaho Territory, and to maintain and operate such railroads and telegraph lines and branches thereof, carry freight and passengers thereon, and receive tolls therefor. “Eighth. That the said line of railroad, as described in the said articles of incorporation of the plaintiff, nor any of the branches thereof, did not cover or include the ground in controversy, or any part thereof, or of the valley of the South Fork of the Cœur d’Alene River adjacent thereto; that the eastern terminus of the said branch of railroad running in the direction of the town of Wallace, as described in said articles, was at the town of Wardner, a distance of about fifteen miles westerly from the town of Wallace and from the land in controversy herein. “ Ninth. That afterwards, to wit, on the 10th day of November, 1886, and after the completion of said survey by said Burrage, and the said survey by the engineers of the defendant, the Cœur d’Alene Railway and Navigation Company, over the premises in controversy herein, the plaintiff filed in WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 85 Statement of the Case. the office of the secretary of the Territory (now State) of Washington supplemental articles of incorporation, which supplemental articles of incorporation provided for a branch line of its railroad from the town of Milo (which is near Wardner), in Shoshone County, Idaho, following the South Fork of the Cœur d’Alene River to the town of Mullen, in said Territory, a distance of about twenty miles, which extension would pass over the premises in controversy. “Tenth. That on the 22d day of December, 1886, the plaintiff filed in the office of the Secretary of the Interior at Washington, D. C., a copy of its said articles of incorporation and a copy of the statute of the Territory of Washington under which the plaintiff’s incorporation was made and proof of its organization. “ Eleventh. That from the time of the making of the said survey by said Burrage over the land in controversy, on the 28th day of October, 1886, until long after the completion of the railroad, side tracks, and depot of the defendant, the Cœur d’Alene Railway and Navigation Company, upon the ground in controversy, neither the said Burrage nor the plaintiff, nor any person for them or either of them, ever made any other survey or did any other act upon the premises in controversy or took any possession thereof ; and that the first act done by said Burrage or the plaintiff upon said premises thereafter was the survey made thereon in the year 1888 by the plaintiff; and that at that time the railroad and the side track and depot of the defendant, the Cœur d’Alene Railway and Navigation Company, was fully constructed thereon, and had been so constructed, and thereon, since the fall of 1887, and the defendant, the Cœur d’Alene Railway and Navigation Company, was in full and complete operation and possession thereof and of the grounds in controversy herein. “Twelfth. That the public surveys of the government were not extended over the land through which said surveys were made until in the month of July, 1891. “ Thirteenth. That on the 9th day of November, 1886, the defendant, the Cœur d’Alene Railway and Navigation Company, filed in the United States land office at Cœur d’Aleire, 86 OCTOBER TERM, 1895. Argument for Plaintiff in Error. Idaho, a map or profile of that portion of its railroad running through the town of Wallace, which was approved by the Secretary of the Interior December 3, 1886, and that upon said map or profile said line ‘ B,’ through said town of Wallace, was platted as the line of route of said road; that line ‘ 0 ’ was in fact and intended to be a definite line of location thereof, but that said line ‘ B ’ was so platted by a mistake, and that said mistake was not discovered until after the completion of said railroad and side track and depot upon and over the ground in controversy herein, and that the filing of said plat, showing said road to run over said line ‘ B,’ was not done for the purpose of in any manner deceiving the plaintiff or any one else, but was done by a mistake as aforesaid, and that the plaintiff was not in any manner misled or prejudiced by the filing of said plat or by said mistake.” The case was taken, by a writ of error, to the Circuit Court of Appeals for the Ninth Circuit, where the judgment of the Circuit Court was, on February 12, 1894, affirmed. 15 U. S. App. 359. On February 4, 1895, by a writ of error of that date, the case was brought to this court. Mr. A. A. Hoehling, Jr., and Mr. Samuel Shelldbarger, (with whom were Mr. IF IF. Cotton and Mr. Jeremiah M. Wilson on the brief,) for plaintiff in error, said, upon the question of jurisdiction : I. The fact that the Northern Pacific Company united with the Coeur d’Alene Company in making the motion for the removal of the case to the Circuit Court of the United States did not make the Northern Pacific Company a party in the case. Parrott v. Alabama Gold Life Ins. Co., 5 Fed. Rep. 391; Atchinson v. Morris, 11 Fed. Rep. 582 ; Miner v. Markham, 28 Fed. Rep. 387; Perkins v. Uendryx, 40 Fed. Rep. 657; Golden v. Morning News Co., 42 Fed. Rep. 112 ; Clews v. Woodstock Iron Co., 44 Fed. Rep. 31; Reif snider n. American c&c. Publishing Co., 45 Fed. Rep. 433; Rentlif v. London dec. Finance Corporation, 44 Fed. Rep. 667; Tailman n. Baltimore de Ohio Railroad, 45 Fed. Rep. 156. WASH. & IDAHO R’D v. CCEUR D’ALENE R’Y. 87 Argument for Plaintiff in Error. II. The United States Circuit Court for the District of Idaho had no jurisdiction to enter up judgment herein against the plaintiff in error and in favor of the defendant in error. Under the language of this act, the Federal courts created by the act became the successors of the territorial courts only in regard to the class of cases of which the Federal courts might have had jurisdiction had such courts been in existence at the time of the commencement of the action. Johnson n. Bunker Hill Mining Co., 46 Fed. Rep. 417; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673; Strasburger v. Beecher, 44 Fed. Rep. 209. Two things are necessary to give a court of the United States jurisdiction over any particular action: First, the action itself must be within the jurisdiction of the court; and second, the jurisdictional facts must affirmatively appear in the record. It is not enough for the court to see from the evidence, or know as a matter of fact, that it has jurisdiction; but such jurisdiction must actually appear by suitable allegations in the pleadings or in the petition for removal, and unless such jurisdiction affirmatively appears, then it is the duty of the court to dismiss the action, although such jurisdiction may actually exist. Insurance Co. v. Pechner, 95 U. S. 183; Robertson v. Cease, 97 U. S. 646; Swan v. Manchester, Coldwater &c. Railway, 111 U. S. 379; Parker n. Ormsby, 141 U. S. 81, 83; Crehore v. Ohio Jo Mississippi Railway, 131 U. S. 240; Gold Washing Co. v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105. The effect of § 18 of the Idaho enabling act was to confer jurisdiction on the state courts of all civil actions in which the United States was not a party, unless a proper written request showing the jurisdiction of the United States court was filed in the proper court, as required by the act. On familiar principles, such request for transfer, in order to oust the state court of jurisdiction and confer jurisdiction upon the United States court, must necessarily show that the United States court might have had jurisdiction of the action had such court existed at the time of the commencement of such case, as well as jurisdiction at the time when the action was 88 OCTOBER TERM, 1895. Argument for Plaintiff in Error. undertaken to be transferred. Johnson v. Bunker Hill Mining Co., 46 Fed. Rep. 417; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673; Strasburger v. Beecher, 44 Fed. Rep. 209. Such request cannot be amended in the United States court; and a failure to properly allege therein the necessary jurisdictional facts is fatal to the jurisdiction of this court and of the court below. Crchore v. Ohio <& Mississippi Bailway, 131 U. S. 240; Stevens n. Nichols, 130 U. S. 230; Gold Washing Co. v. Keyes, 96 U. S. 199. The two grounds of jurisdiction suggested by the petition for removal, namely, diverse citizenship and the corporate character of the Northern Pacific Railroad Company, are the only grounds of jurisdiction anywhere hinted at throughout the entire record. Upon these grounds alone was the state court sought to be deprived of the jurisdiction conferred upon it over this action by the enabling act. Unless the jurisdictional facts above mentioned actually existed and are sufficiently stated, then no transfer took place, and the court below is without jurisdiction. III. The court below had no jurisdiction by reason of the Federal character of the Northern Pacific Company. Under the enabling act no action could be transferred unless “ pending ” at the time of the transfer. Glaspell v. Northern Pacific Railroad, 144 U. S. 211. This action was not pending against the Northern Pacific Company at the time of the admission of Idaho into the Union. The Federal charter to a corporation can only give rise to a Federal question when the corporation is an actual party to the suit, actively present, and actively engaged in the litigation. Pacific Removal Cases, 115 U. S. 1; Metcalf n. Water-town, 128 U. S. 586. It is only when an act of Congress is directly brought into consideration in an action that the cause can be said to arise under such act. Gold Washing Company v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105; Shreveport n. Coe, 129 U. S. 36, 41. Jurisdiction will not be entertained in an action, even where the petition for removal states a clear Federal question, if the WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 89 Argument for Plaintiff in Error. party at the time of filing such, petition enters a special appearance for the purpose of setting aside the sèrvice of summons made in the state court. Germania Ins. Co. v. Wisconsin, 119 U. S. 473. The only Federal question alleged in the petition for removal, or shown by the pleadings, was that suggested by the incorporation of the Northern Pacific Company ; and when it appeared that that company never appeared, and that no service was made on it, that question disappeared. IV. Diverse citizenship furnishes no ground for jurisdiction. A corporation is a citizen, resident, and inhabitant of the State or Territory which creates it, and cannot become such in another State or Territory, by doing business in it. Shaw v. Quincy Mining Co., 145 U. S. 444 ; Southern Pacific Co. v. Denton, 146 U. S. 202. At the time of the commencement of this action, the Washington and Idaho Railroad Company was therefore a resident, citizen, and inhabitant of the Territory of Washington, and the Cœur d’Alene Railway and Navigation Company was a resident, citizen, and inhabitant of the Territory of Montana ; and no suit either by or against either of such corporations could have been removed, transferred, or commenced in a Federal court on the ground of diverse citizenship. New Orleans v. Winter, 1 Wheaton, 91 ; Railway Company v. Swan, 111 U. S. 381 ; Johnson v. Bunker Hill &c. Co., 46 Fed. Rep. 417 ; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673 ; Strasburger v. Beecher, 44 Fed. Rep. 209. V. The record in this action nowhere shows jurisdiction in the Circuit Court for the District of Idaho. Jurisdiction must affirmatively appear in the record. Parker v. Ormsby, 141 U. S. 81, 83; Gold Washing Co. v. Keyes, 96 U. S. 199. Such jurisdiction must not only affirmatively appear to exist at the time of the admission of Idaho into the Union as a State, but also must be shown affirmatively to have existed at the time the action was commenced. This is plainly required by the language of the act. Strasburger v. Beecher, 44 Fed. Rep. 209 ; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673. 90 OCTOBER TERM, 1895. Opinion of the Court. Here no Federal question is alleged with sufficient accuracy in the petition or elsewhere in the record, to have authorized the court below to have entertained jurisdiction of this action. Gold Washing Company v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105, 109; Theurkauf v. Ireland, 27 Fed. Rep. 769; Austin v. Gagan, 39 Fed. Rep. 626. Mr. A. B. Browne, (with whom was Mr. A. T. Britton on the brief,) for defendants in error. Me. Justice Shibas, after stating the case, delivered the opinion of the court. We are to answer the questions that arise on this record in the light of the findings of fact made by the Circuit Court to which no exceptions were taken. Those questions are two — first, had the Circuit Court jurisdiction to entertain the action? and, if so, second, did the title set up by the plaintiff company show a right of possession of the land in dispute as against the title of the defendants? It is claimed by the plaintiff in error that as, at the time when the action was originally brought in the District Court of the Territory of Idaho, the Washington and Idaho Railroad Company, the plaintiff, was a corporation organized under the laws of Washington Territory, and the Coeur d’Alene Railway and Navigation Company, defendant, was a corporation organized under the laws of Montana Territory, and as the Northern Pacific Railroad Company was not really a party to the action, there was no right to remove the cause from the state court, whose jurisdiction over the case had attached under the terms of the act of July 3, 1890, c. 356, 26 Stat. 215, providing for the admission of Idaho into the Union. The argument is based on the language of the eighteenth section of that act, wherein it is provided that “ in respect to all cases, proceedings, and matters now pending in the Supreme or District Courts ot the said Territory at the time of the admission into the Union of the State of Idaho, and arising within the limits of such State, whereof the Circuit or District Courts by this act. WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 91 Opinion of the Court. 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 said Territory at the time of the admission of such Territory into the Union, arising within the limits of said 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 the State shall be pending, in any territorial court in said Territory, shall abate by the admission of such State into the Union, but the same shall be transferred and proceeded with in the proper United States Circuit, District, 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 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.” This language is interpreted by the plaintiff in error to mean that no case can be transferred to the Federal courts if the parties to-it could not have gone into such courts at the time the action was brought, if such courts had then actually existed ; and the contention is that, as at the time of the commencement of this action, the Washington and Idaho Railroad Company was a resident, citizen, and inhabitant of the Territory of Washington, and the Cœur d’Alene Railway and Navigation Company was a resident, citizen, and inhabitant of the Territory of Montana, no suit either by or against either of such corporations could have been removed, transferred, or 92 OCTOBER TERM, 1895. Opinion of the Court. commenced in a Federal court on the ground of diverse citizenship. It should be observed that, while it is true that Montana and Washington were in a* territorial condition when this suit was brought, they both had become States, the former on the 8th, the latter on the 11th, of November, 1889, 26 Stat. 1551, 1553, before the filing of the petition for removal. A similar question was presented in Koenigsberger v. Richmond Silver Mining Company, 158 U. S. 41. That was a case where, at the time of the bringing of the action in a District Court of the Territory of Dakota, the plaintiff was a citizen of such Territory, and, when the Territory became a State under a statute in terms precisely similar to those of the statute we are now considering, the cause was transferred to the Circuit Court of the United States, and it was there contended, as it is here,, that the Circuit Court could not acquire jurisdiction of the case by reason of the diversity of citizenship between the parties, because at the time of the commencement of the case the plaintiff was a citizen of a Territory. The subject was carefully considered and the conclusion reached was thus expressed in the language of Mr. Justice Gray: “ Upon the whole matter, the reasonable conclusion appears to us to be that Congress, by the description ‘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,’ intended to designate cases of which those courts might have had jurisdiction under the laws of the United States, had those courts, like the other Circuit and District Courts of the United States generally, existed, at the time in question, in a State of the Union, whose inhabitants consequently were citizens of that State. According to that hypothesis, the plaintiff would have been a citizen of the State of South Dakota, and the defendant a citizen of the State of New York, at the time of the commencement of the action, and the Circuit Court of the United States would have had jurisdiction by reason of such diversity of citizenship. The case was, therefore, rightly WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 93 Opinion of the Court. transferred, at the written request of the defendant, upon the admission of the State of South Dakota into the Union, to the Circuit Court of the United States.” This view sufficiently disposes of the objection made in this case to the jurisdiction of the Circuit Court of the United States, so far as that jurisdiction depended on adverse citizenship. The Circuit Court of Appeals maintained the jurisdiction of the Circuit Court, on the ground that there was a Federal question involved in the fact that the Northern Pacific Railroad Company, a corporation created by the laws of the United States, was a party to the action. We agree with that court in regarding such a fact as conferring jurisdiction on the Circuit Court. But it is urged that the fact did not exist — that the Northern Pacific Railroad was not a party to the action. This contention is, we think, disposed of by the record itself. That discloses that the original suit was brought against the Northern Pacific Railroad Company as well as against the Coeur d’Alene Railway and Navigation Company j, that the summons included both of said defendants ; that the complaint alleged that the Northern Pacific Railroad Company was in actual possession of the premises in dispute as a tenant of the Cœur d’Alene Railway and Navigation Company. The return of the summons alleged that service had been made upon both defendants. The petition for the removal or transfer of the case was joined in by the Northern Pacific Railroad Company, and in that petition it was not alleged that the latter company objected to the summons, or for any reason, to the jurisdiction of the court, but alleged that the controversy was between citizens of different States, and that the suit was of a civil nature arising under the laws of the United States. Upon the face of the record as it existed at the time of the removal, consisting of the writ, the return of service, the complaint, and the petition for such removal, it was, therefore, plain that the Northern Pacific Railroad Company, as a corporation created by the laws of the United States, was a party both nominally and actively. It is true that the subsequent 94 OCTOBER TERM, 1895. Opinion of the Court. record discloses that the Circuit Court, in rendering its opinion and judgment, speaks of the Northern Pacific Railroad Company as not having been served and as not appearing in the action. But, as was well said by the Circuit Court of Appeals, when dealing with this contention, “ it cannot be said that the Northern Pacific Railroad Company was not an actual party to the litigation. It was not only made a party, but it was a proper party. It was the party in possession of the premises sought to be recovered by the action of ejectment. . . . At the time when the cause was removed the return of service was on file, but no default had been taken against the Northern Pacific Railroad Company, and no disposition had been made of the plaintiff’s controversy against it; that defendant, in presenting its petition for removal to the Circuit Court, declared itself to be one of the defendants to the case, and recited the fact that the cause was pending in the state court, and was properly within the jurisdiction of the Circuit Court of the United States.” Whatever reason, therefore, the Circuit Court may have had for speaking of the Northern Pacific Railroad Company as a party not served and not appearing, it is incontrovertible, as against the record, that it was served, and whether served or not, it entered a general appearance by joining in the petition for removal. That it may have subsequently ceased to take an active part in the case is immaterial. The jurisdictional question must be determined by the record at the time of the transfer of the case. Whether conflicting claims of railroad companies, under the right-of-way act of Congress, March 3, 1875, would give a Circuit Court of the United States jurisdiction independently of citizenship, under the doctrine of Doolan v. Carr, 125 U. S. 618, 620, we do not find it necessary to consider. If, then, the case fell within the jurisdiction of the Circuit Court, we have next to inquire whether that jurisdiction was properly exercised. The controversy was between two railroad companies, one organized under the laws of Washington Territory, the other organized under the laws of Montana Territory, and was as WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 95 Opinion of the Court. to the right of possession of a tract of land situated in Shoshone County, in the Territory of Idaho, and over which each company claimed a right of way under the act of March 3, 1875, c. 152, 18 Stat. 482, entitled “An act granting to railroads the right of way through the public lands of the United States.” This act provides that “ the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any State or Territory . . . which shall have filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road.” It was affirmatively found by the Circuit Court that the Cœur d’Alene Railway and Navigation Company, on the 6th day of July, 1886, filed its articles of incorporation in the office of the secretary of the Territory of Montana, and also filed in the office of the county clerk and recorder of the county of Lewis and Clarke, in said Territory, a certified copy of its said articles of incorporation ; that the line of route of the railroad of the said company, as described in said articles of incorporation, passed over and included the land in controversy ; that on the 20th day of July, 1886, the said company filed in the office of the Secretary of the Interior at Washington, D. C., a certified copy of its articles of incorporation and proofs of its organization under the laws of the Territory of Montana, which certified copy of articles of incorporation and proofs of organization were duly approved on that day by the Secretary of the Interior ; that in the summer and fall of 1886 the said company constructed its railroad over said line of railroad, as described in said articles of incorporation, from the Old Mission up the main Cœur d’Alene River to the town of Kingston, and thence up the South Fork of the Cœur d’Alene River to the town of Wardner Junction, a distance of about fourteen miles ; that in the month of October, 1886, the said company, for the purpose of extending its line of railroad, caused a survey to be made for its said line of railroad from said Wardner Junction up the said fork of the Cœur d’Alene River, over the 96 OCTOBER TERM, 1895. Opinion of the Court. line described in its said articles of incorporation, through the towns of Wallace and Mullen, and marked the centre line of said road upon the ground by planting stakes at each station at one hundred feet, and at such other points as there were angles in the line, so that the line of route of said road could be readily traced upon the ground ; that the. said surveying and marking of said line was completed on the 31st day of October, 1886 ; that in making said survey the engineers of said company ran three lines through said town of Wallace,, called lines “ A,” “ B,” and “ C ” — the two former being on the south and line “ 0 ” being on the north side of said river, the latter being the line upon which the railroad of said company was afterwards constructed, and upon the ground in controversy in this action ; that in the summer and fall of 1887 the said company extended its road from the town of Wardner Junction over its line of survey, a point about one mile east of the town of Wallace, and over said line “C,” the ground in controversy, through the town of Wallace, and at all times thereafter, up to and at the time of the commencement of this action, occupied and used the same as a railroad and for railroad purposes, and at the time of the commencement of this action had its roadbed, track, side tracks and depot thereon, and was using the same exclusively for railroad purposes ; and that at all times above mentioned the lands in controversy, and all other lands along the line of said railroad of the Cœur d’Alene Railway and Navigation Company, as described in its articles of incorporation, were unsurveyed public lands of the United States. If these facts stood unaffected by other evidence, the title of the Cœur d’Alene Railway and Navigation Company to the land in controversy would be clear. It was, however, shown that on the 9th day of November, 1886, ten days after the completion of the survey of the three lines “ A,” “ B,” and “ 0,” the said company filed in the United States land office at Cœur d’Alene, Idaho, a map or profile which was, December 3, 1886, approved by the Secretary of the Interior, and that on this map the line “ B ” through the town of Wallace was platted as the line of the said railroad. WASH. & IDAHO R’D v. CCEUR D’ALENE R’Y. 97 Opinion of the Court. As already stated, in the fall of 1887 the company constructed its railroad upon line “ C ” and across the land in controversy. But no amendment of the said map was made, nor was any approval of the Secretary of the Interior obtained to any new map covering line “ C.” The plaintiff contends that the effect of the filing and approval of the map line “ B ” was to vest in the said company a right of way one hundred feet wide on each side of the centre line of its road, as indicated upon said map, which right could not be changed without the consent of the granting power first had and obtained. Regarding this question as one entirely between the Coeur d’Alene Railway and Navigation Company and the United States, it should be observed that the act of Congress, under which both parties claim the land in question, by its fourth section provides that, in case of unsurveyed lands of the United States, as these were, the plat need not be filed until twelve months after a survey thereof. It is, however, said that while the company might not have been required under the act to file its map at the time such filing was made, yet it had the right to do so under certain regulations of the Secretary of the Interior, in force during the period of this controversy, and that when such map was approved by the Secretary the company had secured the benefit of the act upon the line there shown, and could not thereafter alter the same. We agree with the Circuit Court of Appeals in thinking that, so far as the United States are concerned, there is nothing in the act forbidding a railroad company, having adopted one line of survey along the route provided for in its articles of incorporation, and having filed a plat thereof, to subsequently, and within the time allowed it by law for so doing, adopt another route, and that no reason is apparent why, instead of filing a second plat, it may not construct the road on the line surveyed and adopted, so long as the rights of others have not intervened. Such an actual construction and appropriation of one line would preclude the company from asserting any claim to the other lines, and hence the contention that, by running several lines through unsurveyed lands, the company sought to obtain more than the VOL. CLX—7 98 OCTOBER TERM, 1895. Opinion of the Court. statute gave, namely, one right of way, is met by the fact that it claimed and constructed but one line. If the United States could not, and do not, complain, there is no foundation for the plaintiff company to do so, as it was found by the trial court that the platting of line “ B,” instead of line “ C,” was through a mistake, and that such mistake was not discovered until after the completion of the defendant’s railroad and depot over and upon the ground in controversy, and that the filing of the plat showing line “ B ” was not done for the purpose of, in any manner, deceiving the plaintiff or any one else, and that the plaintiff was not, in any manner, misled or prejudiced by the filing of said plat or by said mistake. Even if the Coeur d’Alene Railway and Navigation Company was duly organized as a railroad company, and, as such, was entitled to construct and maintain its road over the land in controversy, without being estopped by having filed an inaccurate map, still the plaintiff contends that the right of way in question belongs to it by virtue of a prior survey made on its behalf. The facts relevant to this contention are that the articles of incorporation, under which the plaintiff claims the land in controversy, were not filed in the office of the secretary of the Territory of Washington till the 10th day of November, 1886, and that a copy of such articles and proof of organization were not filed in the office of the Secretary of the Interior till December 22, 1886. It was, indeed, shown and found that, on October 28, 1886, W. H. Burrage, claiming to be acting for the plaintiff, surveyed a line up the Coeur d’Alene River, through the town of Wallace, and over the ground in controversy, which was the line described in the articles of incorporation subsequently filed by the plaintiff company in the offices of the secretary of the Territory and of the Secretary of the Interior. The conclusion of the courts below, on this state of facts, was that at the time of the making of said survey by W. H. Burrage over the lands in controversy, on October 28,1886, the plaintiff was not a corporation organized for the purpose of constructing, or authorized to construct, a railroad over the WASH. & IDAHO R’D v. CŒUR D’ALENE R’Y. 99 Opinion of the Court. land in controversy ; was not authorized to take possession of the said premises, or to locate a line of railroad thereon ; and that the said survey on October 28, 1886, conferred no right whatever on it, the plaintiff, as against the defendant, the Cœur d’Alene Railway and Navigation Company. The argument on behalf of the plaintiff is that when, on December 22, 1886, the Washington and Idaho Railroad Company had filed its articles of incorporation and proof of organization in the office of the Secretary of Interior at Washington, D. C., it had a right to adopt the survey previously made by Burrage, as and for the location of its route under the general right-of-way act, and that w,hen it so adopted said survey it related back to the date when the survey was made. We are unable to accept such a view of the law, but concur in the conclusion of the court below that the language of the act of Congress, under which both parties claim, wherein it provides that “ the right of way through the public lands of the United States is hereby granted to any railroad company duly authorized under the laws of any State or Territory, which shall file with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, to the extent of a hundred feet on each side of the central line of said road,” plainly means that no corporation can acquire a right of way upon any line not described in its charter or in its articles of incorporation ; that it necessarily follows that no initiatory step can be taken to secure such right of way by the survey upon the ground or otherwise ; that until the power to build the road upon the surveyed line was in a proper manner assumed by or conferred upon the plaintiff company, its acts of making surveys were of no avail ; and that, so far as the conflicting rights of the parties to this controversy are concerned, the status of the plaintiff is the same as if its survey of October 28, 1886, had not been made. The case of New Brighton Railroad Co. v. Pittsburg Rail-roa^ Co., 105 Penn. St. 14, was, like the present, one of a contest between two railroad companies for a right of way, and where the effect of a survey of a line before the legal organization of the company had to be considered ; and it was held that 100 OCTOBER TERM, 1895. Opinion of the Court. surveying, locating, and designating, by proper marks, the prop erty to be taken Clfer rajtroad purposes, cannot be done by the projectors of a No. 3050. Wade R. Young, her husband. ' “ In this case a regular trial was had after issue joined, and the law and the evidence being in favor of the plaintiff and against the defendant, it is ordered, adjudged, and decreed that there be judgment of separation, dissolving the community of acquets and gains between the plaintiff, Mrs. Bethia F. Liddell, and the defendant, Wade R. Young, and that the said plaintiff do have and recover judgment against the defendant for the sum of $7500, seven thousand five hundred dollars, with a recognition of her mortgage on the property described in the petition, and that the same be sold to satisfy said judgment and costs. “Thus done, read, and signed in open court this 9th day of July, 1881. Wade H. Hough, “ Judge Sth District” This was certified to by the clerk of the ninth district court as “ a true and correct copy of original judgment rendered in suit of ‘Bethia F. Liddell vs. Wade R. Young, her husband,’ as the same appears on file and of record in my office in mortgage book ‘ O,’ page 649 et seq., on June 5, 1882.” On the same day the intervening petition was filed, Young filed what was entitled an “opposition to confirmation of sale,” in which it was alleged that plaintiffs had attempted to proceed according to the practice of the courts of Louisiana, and in doing so had violated the rules and practice prescribed in the conduct of equity cases in the Circuit Court; that there was a want of parties; that there existed a prior incumbrance on the property fully equal to or exceeding its value, and that by the laws of Louisiana no valid sale of the property could be made for a price not exceeding the amount of such prior incumbrance. He then set forth the mortgage of 1868 in favor of Miss Eliza H. Young, to secure the $11,250 note; the transaction between Mrs. Metcalfe, his wife and him- 631 OCTOBER TERM, 1895. Statement of the Case. self of 1876; the judgment of 1881 in favor of his wife for $7500; the renunciation by his wife of her prior right of mortgage in favor of Nalle & Co.; and the execution of the mort-gage to Nalle & Co. to secure the payment of his note for $1632.61, with interest at eight per cent until paid; and charged the renunciation to have been invalid. The rendition of decree in favor of Nalle & Co. against defendant for the foreclosure of their mortgage; the issue of final process in execution of the decree, and the proceedings and sale thereunder, were rehearsed at length, as in the intervening petition; and it was averred that his wife’s mortgage was a first incumbrance, and that no sale or adjudication could be made to a purchaser for less than the amount of the mortgage. It was further alleged that the marshal in the second advertisement of the property for sale on twelve months’ credit required the purchaser out of the price to deduct and pay in cash an amount for printing, marshal’s fees, and clerk’s fees, as well as taxes due on the property, and that much the largest amount required to be paid was claimed by Nalle & Co., or one of them, for taxes alleged to have been paid by them or him on the property, the legality of which was contested by defendant and by his wife; that this requirement was an oppressive and unjust act towards the mortgagor, and deterred a purchaser with whom defendant had arranged to buy; and other irregularities were set forth. As to the claim of the payment of taxes for the years 1882, 1883, 1884, and 1885, and as to the taxes pretended to be due for the year 1886, the payment of which the marshal made a condition precedent to the accepting of any bid, no taxes were due and no necessity existed for the payment thereof, and that Nalle & Co. acquired no rights by such payment and subrogation, and thereupon the grounds on which the illegality was charged were given at considerable length. Defendant prayed that the sale be not confirmed and be set aside; that his wife be made or allowed to become a party to the suit; that a reference be made to a master to settle the priority of liens; that the renunciation of his wife be declared invalid, and her mortgage for $7500 and interest be decreed the NALLE v. YOUNG. 635 Statement of the Case. first lien on the property and prior in rank to Nalle & Co.; that the revenue acts of Louisiana for the years 1880, 1882, 1884, and 1886 be decreed unconstitutional, null, and void, and the inscription of the mortgage to secure the taxes be erased as a cloud, and for general relief. And he further prayed that, if it be determined that the sale was a valid sale, he might be allowed to redeem by paying to complainants the amount of the debt, interest, and costs,, and such other sums as might be found to be legally due. Defendant also filed what he styled a cross-bill against the marshal, Mrs. Mary Nalle, and her husband Golson, and Nalle & Co., alleging the sale of the property by the marshal and the acceptance of the bid of Mrs. Mary Nalle, notwithstanding a written protest by defendant against the acceptance of any bid not exceeding $7500, the amount of the prior incumbrance ; that the marshal attempted to transfer the possession of the property to Nalle & Co., or Mrs. Mary Nalle for them, by giving complainants’ solicitor an order to take such possession; and that the marshal and Mrs. Mary Nalle were now seeking to evict defendant from the possession of his property, and were trespassing thereon, all of which was without color of right; that the marshal had no power to pass the title to Mrs. Nalle until the oppositions to the sale had been tried and determined and the sale confirmed, and that, even if he had, the sale was absolutely null and void because the amount of the bid did not exceed the amount of the prior special mortgage ; ¿nd prayed for an injunction, whereupon a restraining order was issued, and subsequently a writ of injunction. Nalle & Co. demurred to the petition of intervention, and moved to dismiss the opposition and dissolve the injunction. The motion was denied and the demurrer overruled. Thereupon Nalle & Co. answered the intervening petition of Mrs. Young and the cross-bill and opposition to confirmation of sale of Wade R. Young, alleging that Mrs. Young was, at the time of the erasure and cancellation of her alleged mortgage, to wit, June 1, 1882, a citizen of the State of Mississippi, and as such sui juris in every respect, having, under the laws of said State, full capacity as a feme sole to make any contract 636 OCTOBER TERM, 1895. Opinion of the Court. whatever; denying that Wade R. Young moved his family to the State of Mississippi in 1876 with the intention of retaining, or that he did retain, either an actual or constructive domicil in the State of Louisiana; averring that the alleged agreement between Mrs. B. F. Young and Mrs. Metcalfe and Wade R. Young, under date of December, 1876, was null and void for reasons given; and that Mrs. Young and Wade R. Young were in equity and good conscience estopped from setting* up her alleged mortgage. Wade R. Young and his wife filed a replication to the answer of Nalle & Co. and others “to the cross-bill and intervening petition.” The case came on to be heard “upon the cross-bill and opposition to the confirmation of the sale and the intervening petition ” and the various papers heretofore referred to were offered in evidence as well as sundry depositions, and “ generally everything of record in the suit.” On June 9, 1890, the court entered a decree, whereby it was “ ordered, adjudged, and decreed that the sale of the mortgaged property made by the marshal, in pursuance and execution of the foreclosure decree, be set aside, cancelled, and avoided. And it is further ordered, adjudged, and decreed that the attempted renunciation by the intervening petitioner, Mrs. Bethia F. Young, of her special mortgage on the property, was and is invalid and of no effect, and that said mortgage be recognized as the first mortgage on the property, superior in rank to the mortgage of the plaintiffs, E. Nalle & Co., and entitled to be paid by preference. And it is further ordered that the plaintiffs, E. Nalle & Co., pay the costs of the sale and of these proceedings.” From this decree Nalle & Co. and Mrs. Mary Golson, as purchaser, appealed to this court. Mr. Charles J. Boatner for appellants. Mr. Wade R. Young for himself and Mrs. Young, defendants in error. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. NALLE v. YOUNG. 637 Opinion of the Court. The proceedings in the state court were ordinary and not executory, and in the Circuit Court the petition stood as a bill in equity to foreclose a mortgage. The decree of November 6,1886, was a final decree, and the execution may be regarded as the equivalent of a direction to a master or commissioner to make sale in the enforcement thereof. Under the civil code and code of practice of Louisiana judicial sales are conducted by the sheriff or other public officer in the manner minutely described, and adjudicated to the purchaser, who thereupon becomes the owner of the article adjudged. Civil Code, Art. 2601 to Art. 2621; Code of Prac. 663 et seq. But in an equity foreclosure in a Circuit Court, while the requirements of the state law should be complied with and the forms of proceeding pursued as nearly as practicable, it is proper for the officer who makes the sale to make a report or return to the court for confirmation. Resistance to such confirmation may be made, under circumstances, and this sometimes results in the setting aside of the sale and an order for a resale. But the scope of these pleadings was much wider. To the confirmation of the sale the defendant, indeed, interposed objections, waiving any formal report for confirmation, but they were not passed upon by the Circuit Court independently of defendant’s alleged cross-bill and the petition of Mrs. Young in intervention and these papers may all be considered together, as they were by the Circuit Court, and so treated they constituted in effect an independent suit brought by Young and his wife to set aside the sale and have the alleged mortgage of the wife declared the prior incumbrance and enforced ; or for redemption. The objections in respect of alleged irregularities in the conduct of the sale, or the invalidity of certain taxes and the requirement of their payment, need not be considered, as they are not sustained by the record, and mere informalities or irregularities in a judicial sale in Louisiana do not constitute a sufficient ground for setting it aside. Stockmeyer v. Tobin, 139 U. S. 176. The principal objection to the sale was the insufficiency of the bid at which the property was disposed of, and that objection will be first examined. 638 OCTOBER TERM, 1895. Opinion of the Court. Under Articles 679, 683, and 684 of the code of practice of Louisiana, when there exists a special conventional mortgage or privilege on the property put up for sale, the property is sold subject thereto, and the purchaser pays to the officer so much of the price as exceeds “the amount of the privileges and special mortgages to which such property is subject;” and, in case of sale on twelve months’ credit, if there exist on the property any privileges or special mortgage, in favor of other persons than the judgment creditor, and who are preferred to him, the purchaser is entitled to retain in his hands out of the price the amount required to satisfy the privileged debts and special hypothecations to which the property sold was subject, but is bound to give his obligation for the surplus of the purchase money, if there be any, and subscribe his obligation at twelve months’ credit, with security ; but if the price offered is not sufficient to discharge the privileges and mortgages existing on the property, having a preference over the judgment creditor, there shall be no adjudication, and other property, if there be any, shall be seized. If, therefore, the mortgage claimed by Mrs. Young was conventional or special, and had been properly recorded and not legally renounced, and it was prior to that of Malle & Co., no sale of the mortgaged property could be made under the junior incumbrance of the latter, unless the price bid was sufficient to discharge the prior lien. But if the prior mortgage was legal or judicial, this requirement did not apply, and the property passed to the purchaser subject to the payment of the prior lien. Alford v. Montejo, 28 La. Ann. 593; God-chaux v. Dicharry's Succession, 34 La. Ann. 579. The Circuit Court held that the mortgage asserted by Mrs. Young was a special mortgage, which took precedence over that of Nalle & Co.; that her renunciation was void, and, the price bid not being sufficient to discharge this prior special mortgage, that the sale could not be confirmed and must be set aside. By the civil code, the partnership or community of acquets and gains exists between husband and wife by operation of law, unless otherwise stipulated in the contract. The separate NALLE v. YOUNG. 639 Opinion of the Court. property of the wife is that which she “ brings into the marriage, or acquires during the marriage by inheritance or by donation made to her particularly,” and “is divided into dotal and extra dotal. Dotal property is that which the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Extra dotal property, otherwise called paraphernal property, is that which forms no part of the dowry.” Fleitas v. Richardson, No. 2, 147 U. S. 550. 553; Arts. 2332, 2399, 2334, 2335. By Article 2337, “by dowry is meant the effects which the wife brings to the husband to support the expenses of the marriage.” Article 2383 declares : “ All property, which is not declared to be brought in marriage by the wife, or to be given to her in consideration of the marriage or to belong to her at the time of the marriage, is paraphernal.” Mrs. Young claimed an indebtedness on the part of her husband to her, arising from his having received the proceeds of a life insurance policy on the life of her father in her favor for $5000, and the additional sum of $2500, being an amount which came to her from her father’s estate, and was received by him. This was paraphernal property. The wife has a legal mortgage on the property of her husband “for the restitution or reimbursement of her paraphernal property.” Art. 3319. “ Conventional mortgage is that which depends on covenants. Legal mortgage is that which is created by operation of law. Judicial mortgage is that which results from judgments.” Art. 3287. A legal mortgage results by operation of law, and “no legal mortgage shall exist, except in the cases determined by the present code.” Arts. 3311, 3312. Art. 2376 declares that the wife has a legal mortgage on the property of her husband for the restitution of her dowry as well as for the replacement of her dotal effects; and by Art. 2379 it is provided that, during the marriage, the husband may, with the consent of his wife, “be authorized by the judge, with the advice of five of the nearest relations of the wife, or friends, for want of relations, to mortgage, spe- 640 OCTOBER TERM, 1895. Opinion of the Court. cially for the preservation of his wife’s rights, the immovables which he shall designate; and then, the surplus of his property shall be free from any legal mortgage in favor of his wife; ” while Art. 2390 is as follows: “ The wife may alienate her paraphernal property with the authorization of her husband, or in case of refusal or absence of the husband, with the authorization of the judge; but should it be proved that the husband has received the amount of the paraphernal property thus alienated by his wife, or otherwise disposed of the same for his individual interest, the wife shall have a legal mortgage on all the property of her husband for the reimbursing of the same. The husband may release the mass of his property from this legal mortgage, by executing a special mortgage in the manner required in the preceding section, for dotal effects.” Thus it appears that a legal mortgage on all the husband’s property exists until a special mortgage is executed according to the foregoing provisions, and the law does not contemplate a legal and a special mortgage existing at the same time. And the legal mortgage of the wife to affect third persons must be recorded in the office of mortgages for the parish where the property lies. Arts. 3342 to 3349. Mrs. Young must either stand upon her legal mortgage resulting from the receipt of her paraphernal property, and recognized by the judgment of July 9, 1881, decreeing a separation of property, or a judicial mortgage arising from that judgment, or on the contract between herself and Mrs. Metcalfe, by which Mrs. Metcalfe purported to transfer to her an indebtedness due by Wade R. Young, secured on the property in controversy. If her mortgage be legal or judicial, its existence would not be a bar to the confirmation of a sale for an amount insufficient to satisfy it; and, moreover, it could not rank the special conventional mortgage of Nalle & Co., because it was not recorded until subsequently. It is, indeed, insisted that it was altogether invalid under Art. 2428 : “ The separation of property, although decreed by a court of justice, is null, if it has not been executed by the payment of the rights and claims of the wife, made to appear NALLE v. YOUNG. 641 Opinion of the Court. by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-interrupted suit to obtain payment.” Chaffee n. Sheen, 34 La. Ann. 684, 690; Nachman v. Le Blanc, 28 La. Ann. 345, 346; Bertie v. Walker, 1 Rob. (La.) 431, 432. But this becomes immaterial, as whatever rights, if any, might be claimed under it, it could have no effect as against Nalle & Co. for want of record. According to Arts. 3345 and 3349, all mortgages, whether conventional, legal or judicial, are required to be recorded as provided, and the preservation of the legal mortgage or privilege in favor of a married woman depends on the record of the evidence of her mortgage or privilege in the mortgage book of the parish where the property is situated; and that evidence, if not by written instrument, must consist of “ a written statement, under oath, made by the married woman, or her husband, or any other person having knowledge of the facts, setting forth the amount due to the wife, and detailing all the facts and circumstances on which her claim is based.” There was no such evidence as last named here, and no such inscription until after the mortgage to Nalle & Co. had been given and registered. Lovell v. Cragin, 136 U. S. 130, 149. The transaction between Mrs. Metcalfe, Young, and Mrs. Young appears to have been that Mrs. Metcalfe being indebted to Young, and Young indebted to Mrs. Metcalfe, the respective debts were discharged by agreement and compensated each other, but that it was agreed that Young’s indebtedness to Mrs. Metcalfe should be kept alive for the benefit of Mrs. Young, upon the consideration on Mrs. Young’s part of the release of her paraphernal claims against her husband. Compensation had, however, taken place and the two debts were reciprocally extinguished. Arts. 2130, 2207, 2208. This was the necessary effect by operation of law, and when the principal obligation was discharged the mortgage fell with it and would not be revived though the indebtedness were reacknowledged in favor of another. Smith v. Mg Waters, 22 La. Ann. 431, 432; Davidson v. Carroll, 20 La. Ann. 199; Schinkel v. Hanewinkel, 19 La. Ann. 260. Again, contracts between husband and wife are forbidden VOL. CLX—41 642 OCTOBER TERM, 1895. Opinion of the Court. in Louisiana except as specified. Contracts of sale between them “ can take place only in the three following cases: 1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights. 2. When the transfer made by the husband to his wife, even though not separated, as a legitimate cause, as the replacing of her dotal or other effects alienated. 3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.” Arts. 1790, 2446 ; Carroll v. Cockerham, 38 La. Ann. 813,824. This transaction was an attempt to extinguish the wife’s general mortgage by the transfer of the special mortgage of a third party, satisfied by the act as between the immediate parties thereto, and if it could be done at all, it could only be when taking place in accordance with Articles 2379 and 2390, and recorded as required by Article 3345 ; and, as already seen, these articles were not complied with. But were this otherwise, the judgment of 1881 did not recognize her alleged special mortgage, which recognition was evidently not prayed for, and recognized only her legal mortgage in complete disregard of her special mortgage if she had had any. The rendition of judgment for all her paraphernal claims without any recognition of a special conventional mortgage to secure them would seem to have concluded the fact that none such then existed, or at least furnishes such persuasive proof thereof as must be controlling on this record. Nicolson v. Citizens' Bank, 27 La. Ann. 369. Conceding, then, that the renunciation by Mrs. Young in favor of Nalle & Co. was ineffectual, her legal or judicial mortgage, if outstanding, was nevertheless subordinate to their mortgage and not entitled to precedence. In the jurisprudence of Louisiana, and under the statutes of that State, the right of redemption from a decree in foreclosure does not obtain. If a prior mortgage exists, the prior mortgagee is not a necessary party, and purchasers take subject to the prior lien. If there be a subsequent mortgage, the prior mortgage containing the pact de non alienando as Nalle & Co.’s mortgage GREGORY v. VAN EE. 643 Statement of the Case. did, the mortgagee therein need not be made a party, but must take notice of the proceedings to enforce the prior mortgage at his peril. He may, however, apply to set aside the sale on proper grounds. Dupasseur v. Rochereau, 21 Wall. 130; Watson v. Bondurant, 21 Wall. 123; Carite v. Trotrot, 105 U. S. 751.. As heretofore noticed, Mrs. Young and her husband prayed for redemption, which is not, in any foreclosure case, allowable as such; while so far as their pleadings are regarded as seeking the setting aside of the sale and for a resale, we find no adequate grounds for according that relief. The decree of June 9, 1890, is reversed with costs ’ and the cause remanded to the Circuit Court with instructions to enter a decree overruling the objections to the sale of July 30, 1887; dissolving the injunction j adjudicating the property to Mrs. Mary Nolle, wife of Eustis F. Golson, and ordering the delivery of possession to her. GREGORY v. VAN EE. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 601. Submitted December 23, 1895. — Decided January 27,1896. If the decree of a Circuit Court of Appeals is final under the sixth section of the judiciary act of March 3, 1891, a decree upon an intervention in the same suit must be regarded as equally so; and even if the decree on such proceedings may be in itself independent of the controversy between the original parties, yet if the proceedings are entertained in the Circuit Court because of its possession of the subject of the ancillary or supplemental application, the disposition of the latter must partake of the finality of the main decree, and cannot be brought here on the theory that the Circuit Court exercised jurisdiction independently of the ground of jurisdiction which was originally invoked as giving cognizance to that court as a court of the United States. Gregory, a citizen of Illinois, filed his bill in the Supreme Judicial Court of Massachusetts, December 16, 1884, against 644 OCTOBER TERM, 1895. Statement of the Case. Frederick A. Pike, a citizen of Maine, and William C. N. Swift, a citizen of Massachusetts, to recover two certain non-negotiable promissory notes made by Swift, held by Pike, and alleged by Gregory to be his property. This suit was afterwards removed on Gregory’s petition to the Circuit Court on the sole ground of the diverse citizenship of the parties. Pending the suit the notes were collected, and the proceeds transferred to the registry in the cause. On the petition of Swift and John C. Kemp Van Ee, who claimed to be interested in the notes, Van Ee was made a party defendant by order of court, against Gregory’s objection, and filed a crossbill. Butterfield was made a defendant on the application of himself and Swift, and filed a cross-bill, and Talbot, attorney for Pike and his estate, filed a petition for attorney’s fees. Pike died, and his executrix, Mary H. Pike, was made a party. The Circuit Court dismissed the cross-bill of Butterfield and decreed payments out of the fund in favor of Mrs. Pike and Van Ee. From this decree separate appeals were taken, by Gregory as against Mrs. Pike, and as against Van Ee; by Talbot; and by Butterfield, to the Circuit Court of Appeals for the First Circuit and went to judgment there. The opinion of that court gives a clear idea of a somewhat confused record. 67 Fed. Rep. 687. The Court of Appeals concurred with the disposition of the case by the Circuit Court as to Mrs. Pike and Butterfield, but awarded relief to Talbot; and held that Van Ee was improperly made a party defendant, that his cross-bill was unauthorized and should be dismissed, but that it could be properly treated as an intervening petition, and, so treating it, that he was entitled thereon to the relief accorded by the Circuit Court. The case was remanded to the Circuit Court with directions to enter a final decree, modifying the original decree in the particulars pointed out. From the decree of the Circuit Court of Appeals separate appeals to this court were prayed by Gregory and allowed, as against Van Ee, Mary H. Pike, and Talbot, which appeals were separately docketed here as Nos. 601, 602, and 603. The appeals in Nos. 602 and 603, those against Mrs. Pike and Talbot, were dismissed November 25, and a motion to dismiss the appeal against Van Ee, No. 601, is now made. GREGORY v. VAN EE. 645 Opinion of the Court. Mr. Russell Gray for the motion. Mr. E. J. Phelps and Mr. F. A. Brooks opposing. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of court. The jurisdiction of the Circuit Court in the suit of Gregory against Pike and Swift rested on the fact that the controversy therein was between citizens of different States, and this was the sole ground on which Gregory removed the cause from the state court to the Circuit Court. The fund was in the Circuit Court because realized out of and substituted for the subject of contention in that suit, and Van Ee recovered on his intervening petition what he claimed to be his share of that fund. In Rouse n. Letcher, 156 U. S. 47, we held that if the decree of a Circuit Court of Appeals is final under the sixth section of the judiciary act of March 3, 1891, a decree upon an intervention in the same suit must be regarded as equally so because the intervention is entertained in virtue of jurisdiction in the Circuit Court already subsisting. It was pointed out that where property is in the actual possession of the Circuit Court, this draws to it the right to decide upon conflicting claims for its ultimate possession and control, and that where assets are in the course of administration all persons entitled to participate may come in under the jurisdiction acquired between the original parties, by ancillary or supplemental proceedings, even though jurisdiction in the Circuit Court would be lacking if such proceedings had been independently prosecuted; that the exercise of the power of disposition by a Circuit Court of the United States over such an intervention is the exercise of power invoked at the institution of the main suit; and that it is to that point of time that the inquiry as to the jurisdiction of the Circuit Court must necessarily be referred. Therefore, that, if the decree in the main suit were final, decrees in accessory and subordinate proceedings would be also final, and appeals therefrom could not be sustained. 646 OCTOBER TERM, 1895. Syllabus. The Circuit Courts of the United States have cognizance of suits as provided by the acts of Congress, and when their jurisdiction as Federal courts has attached, they possess and exercise all the powers of courts of superior general jurisdiction. Accordingly they entertain and dispose of interventions and the like on familiar and recognized principles of general law and practice, but the ground on which their jurisdiction as courts of the United States rests is to be found in the statutes, and to that source must always be attributed. Manifestly, the decree in the main suit cannot be revised through an appeal from a decree on ancillary or supplemental proceedings, thus accomplishing indirectly what could not be done directly. And even if the decree on such proceedings may be in itself independent of the controversy between the original parties, yet if the proceedings are entertained in the Circuit Court because of its possession of the subject of the ancillary or supplemental application, the disposition of the latter must partake of the finality of the main decree, and cannot be brought here on the theory that the Circuit Court exercised jurisdiction independently of the ground of jurisdiction which was originally invoked as giving cognizance to that court as a court of the United States. Appeal dismissed. CHEMICAL BANK v. CITY BANK OF PORTAGE. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. No. 736. Submitted January 7, 1896. — Decided January 27,1896. By authority of the directors of a national bank in Chicago, which had acquired some of its own stock, the individual note of its cashier, secured by a pledge of that stock was, through a broker in Portage, sold to a bank there. The note not being paid at maturity the Portage Bank sued the Chicago Bank in assumpsit,„declaring specially on the note, which it alleged was made by the bank in the cashier’s name, and also setting out the common counts. The bank set up that the purchase of its own stock was illegal and that money borrowed to pay a debt con- CHEMICAL BANK v. CITY BANK OE PORTAGE. 647 Statement of the Case. tracted for that purpose was equally forbidden by Rev. Stat. § 5201. The trial court was requested by the Chicago Bank to rule several propositions of law, and declined to do so. Judgment was then entered for the Portage Bank. The Supreme Court of the State of Illinois held that the Portage Bank was entitled to recover under the common counts, and that it was not necessary to consider whether the trial court had ruled correctly on the propositions of law submitted to it. Held, that that court, in rendering such judgment, denied no title, right, privilege, or immunity specially set up or claimed under the laws of the United States, and that the writ of error must be dismissed. This was an action of assumpsit brought by the City Bank of Portage against the Chemical National Bank of Chicago, in the Superior Court of Cook County, Illinois. The declaration contained a special count upon a note signed by C. E. Bradep, which it was alleged was made by defendant in that name; and the common counts. The defendant pleaded the general issue and a plea denying the execution of the note described in the special count. A jury was waived and the cause submitted to the court for trial. Under the practice act of Illinois, where a trial is by the court, either party may “submit to the court written propositions to be held as law in the decision of the case,'1 upon which the court shall write ‘refused’ or ‘held,’ as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court.” Rev. Stat. Ill. c. 110, § 42; 2 Starr & Curt. 1808. Defendant requested the court to hold as law in the decision of the case the eight propositions given in the margin.1 11. If the court fln’ds from the evidence that some of the directors of the Chemical National Bank of Chicago were desirous of purchasing shares of the capital stock of said bank for themselves, individually; that in pursuance of such desire they instructed the president of said bank to purchase such an amount of said shares of stock not exceeding $100,000 par value, as might be offered at par, stating to him that they would take the stock so purchased at different times as their money came in; that in pursuance of such instruction the president of said bank caused a broker to purchase fifty shares of said capital stock, and in payment for said stock one Hopkins, assistant cashier of said bank, gave to said broker his individual note for the purchase price of said stock, payable on demand; that thereafter, payment of said note being demanded of said Hopkins, the pres- 648 OCTOBER TERM, 1895. Statement of the Case. Of these the court refused to hold propositions numbered one, two, three, four, six, and eight, and also proposition numbered six “ if it appears that the bank, its officers knowing the facts, used the money; ” and defendant excepted. The court held propositions numbered five and seven. The issues were found in favor of plaintiff, and judgment entered on the finding, and, the case having been taken to the Appellate Court for the first district of Illinois, the judgment of the Superior Court was affirmed. 55 Ill. App. 251. And this judgment of the Appellate Court was affirmed by the Supreme Court of the State on appeal. 156 Illinois, 149. Thereupon a writ erf error from this court was sued out. There was evidence tending to show that in 1893 the Chemical National Bank had taken some of its own stock in pay-ident and cashier of said bank paid said note out of the moneys of said bank, and thereupon it was arranged by and between the president, the cashier, and the assistant cashier, that the cashier, Braden, should execute his individual note for $5000 to a broker; that fifty shares of said stock so purchased should be transferred upon the books of the bank to said Braden, and attached to said note to be given to said broker as collateral security; that said broker should procure said note to be discounted, and that the money realized by discounting said note should be paid into the moneys of the bank to replace the money of the bank used in paying the Hopkins note, and that in pursuance of such arrangement said Braden gave the note in controversy, and the same was discounted and the proceeds were deposited with the moneys of the Chemical National Bank of Chicago, then the court should find that said note was the individual note of said Braden, and not the note of the defendant, and should find the issues in favor of the defendant. 2. If the court believes the testimony given by J. O. Curry in this case to be true and to be a correct statement of the circumstances connected with the execution by Braden of the note sued on, then the court must find the issues joined in favor of the defendant. 3. Although the court may believe the testimony of Braden to be true, yet his testimony with all inferences that may be justifiably drawn therefrom in favor of the plaintiff does not justify a finding in favor of the plaintiff. 4. The fact that the money realized upon the note in suit was received by the Chemical National Bank of Chicago does not make said Chemical National Bank of Chicago liable upon said note; and this is true notwithstanding it was agreed by and between Curry, Braden, and Hopkins that the note should be treated as a note of the Chemical National Bank of Chicago and paid by it. CHEMICAL BANK v. CITY BANK OF PORTAGE. £49 Statement of the Case. ' ment of a debt ; that Hopkins, assistant cashier, had given to a firm of brokers his note payable on call, secured by part of this stock as collateral ; that the brokers procured the money on the note and paid it to the bank, the assistant cashier not getting any of it; and that after the note had run fifteen days the holders called it in and it was paid out of the moneys of the bank. It was then agreed between Curry, president, Braden, cashier, and Hopkins, assistant cashier, that the bank should raise five thousand dollars through a broker in Minneapolis, by giving a note in Braden’s name, payable to the broker and with the stock as collateral, and that, as the bank was to have the money, the note should be the bank’s obligation and be paid by it. In carrying out this arrangement the note in suit was given, being signed by Braden in his own name and not as cashier, and made 5. A national banking association is prohibited by law from purchasing shares of its own capital stock unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith. 6. The purchase by officers of a national banking association of shares of its own capital stock unless such purchase is necessary to prevent loss upon a debt previously contracted in good faith, cannot be regarded as a transaction of the association itself unless expressly authorized by its board of directors and a note executed by an officer in his own individual name for the purpose of borrowing money to make such a purchase cannot be regarded as the note of the association unless recognized as such by its board of directors and unless the lender parted with his money upop the faith of the liability of the association. 7. There is no evidence in this case legally sufficient to justify a finding that the plaintiff at the time it accepted the note in controversy and advanced money on the same had any knowledge whatever that Braden was not the real principal or that it advanced any money on the note upon the faith of any supposed liability of the defendant upon said note. 8. Although a corporation may be held liable upon a contract that is ultra vires or prohibited by law, when such contract has been fully executed by the other party, yet where such contract has been entered into by an officer of the corporation in his own individual name, and the other party, at the time he performed the same on his part, had no knowledge that the same was for the benefit of the corporation and did not part with any money or property on the faith of the liability of the corporation upon the contract, but, on the contrary, executed the contract on his part in reliance solely upon the individual liability of such officer, such other party cannot enforce such contract against the corporation as an undisclosed principal 650 OCTOBER TERM, 1895. Statement of the Case. payable to the Minneapolis broker; and fifty shares of the stock held by the bank were issued in Braden’s name and attached to the note as collateral. Braden did not own this stock; received none of the money; and had no personal interest in the transaction. The note was sent to the broker at Minneapolis, who endorsed it without recourse, procured the money from the City Bank of Portage, and sent it to the Chemical National Bank. He advanced no money on the note either to Braden or the bank; did not owe Braden anything; and the note was given by Braden to him purely as a means of raising money for the bank. There was also evidence that the board of directors of the Chemical National Bank, at a meeting thereof, had authorized the president to buy stock of the bank when offered for sale at par up to $100,000, agreeing to take it as soon as they could, but that no entry of this authority was made on the bank’s records; that the money obtained on Hopkins’ note was used in making such a purchase; and that the stock which was annexed to the Hop-kins note and to that in suit was a part of the stock purchased under these circumstances, and not part of that taken by the bank upon a debt; of all which the City Bank of Portage had no notice. The defence was that the purchase by the bank of its own stock was illegal; that it was equally illegal for the bank to borrow money to replace money paid out in making such a purchase; that that was what this transaction amounted to; and that plaintiff could not recover because the money was obtained and used for a purpose forbidden by section 5201 of the Revised Statutes of the United States, which is as follows : “No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase j shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale; or, in default thereof, a receiver may be appointed to close up the business of the CHEMICAL BANK v. CITY BANK OF PORTAGE. 651 Statement of the Case. association, according to section fifty-two hundred and thirty-four.” The Supreme Court held that the plaintiff was entitled to recover under the common counts; that it was unimportant to consider whether the Superior Court ruled correctly on the propositions of law requested on behalf of defendant since they all related to the right of recovery on the note ; and the court said: “Curry, president of the Chemical National Bank, was called as a witness, and it may be inferred from his evidence, although he does not state the fact, that the bank stock procured by the bank was not taken in on a debt, but was purchased. Conceding that the Chemical National Bank purchased fifty shares of its own stock, contrary to the provisions of the national banking act, does that unlawful act so pollute the transaction between plaintiff and defendant, under which plaintiff loaned its money, that the defendant may keep the money and the plaintiff bear the loss ? If the facts were as claimed by counsel, they would not defeat a recovery on the part of plaintiff. The purchase of the stock and the borrowing of the money from plaintiff were two distinct transactions. In the purchase of the stock the money used by the defendant in payment was raised on the note of Hopkins, assistant cashier. Afterwards the bank paid the Hopkins note with its own funds, and this ended the transaction so far as the purchase of stock was concerned. After this transaction was ended the bank applied to the plaintiff for a loan of money and obtained it, placing the bank stock previously obtained in the hands of plaintiff as collateral. The plaintiff did not know where, of whom or in what manner the Chemical National Bank had acquired the bank stock turned over as collateral, nor did it know what use that bank would make of the money loaned. Moreover, this money was not loaned by plaintiff to pay for bank stock, and, so far as appears, it was never used for that purpose. So far as appears from the evidence there was nothing illegal in the transaction between plaintiff and defendant which resulted in the loan of $5000.” 652 OCTOBER TERM, 1895. Opinion of the Court. JZ?. Hiram T. Gilbert for plaintiff in error. J/?. Daniel Kent Tenney and Mr. Samuel P. McConnell for defendant in error. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. We are of opinion that the Supreme Court of Illinois in rendering judgment denied no title, right, privilege, or immunity specially set up or claimed by defendant under the laws of the United States, and that this writ of error cannot be maintained. The contention of plaintiff in error is that the state court decided “ either, first, that the cashier, Braden, by virtue of his office, had, under the laws of the United States regulating national banks, implied authority to borrow money in the name of the defendant and bind it to repayment thereof; or, second, that the transaction out of which the discounting of the Braden note arose, which transaction consisted of the original purchase of the fifty shares of the bank’s stock, the giving of the Hopkins note, and the payment thereof out of the moneys of the bank was one which, in law, could be regarded as a transaction of the bank.” And that therefore the state court decided against an immunity from liability expressly set up or claimed by the Chemical National Bank under the laws of the United States. The Appellate Court reviewed the judgment of the Superior Court for errors committed on the trial, and, finding none, affirmed it, and the Supreme Court affirmed the judgment of the Appellate Court; and if no such claims were set up in the trial court, the Supreme Court, in approving the affirmance of its judgment by the Appellate Court, could not be held to have decided against a claim with which the trial court had not been called upon to deal. It does not appear that the immunity from liability was expressly claimed by plaintiff in error in the trial court on the ground that the bank could retain the money because it was obtained by means in excess of the powers of its cashier or other officers. CHEMICAL BANK v. CITY BANK OF PORTAGE. 653 Opinion of the Court. The propositions on which the trial court was asked to rule were manifestly directed to the right of recovery on the note as such, under the special count, and certainly fell far short of a claim of the character suggested as a defence to a recovery under the common counts. Moreover, the question of liability, whatever the authority of these bank officers to borrow this money for the bank, depended upon general principles of law applicable under the particular facts. Western National Bank n. Armstrong, 152 U. S. 346, 352, 353. Nor can we perceive that the Supreme Court denied any immunity from liability claimed as arising out of the purchase by the bank of its own stock other than to prevent loss on previous indebtedness. The decision of the Supreme Court rested on the fact that that purchase of stock and the loaning of the money from the City Bank of Portage were two distinct transactions, and this was a ground broad enough to sustain the judgment without deciding any Federal question at all. It is said that the Supreme Court had no power to decide any controverted question of fact, but we cannot review the decision of that court in that respect, even if the position were well taken; and we do not understand that the Supreine Court did so decide. It is true that, under sections 87 and 89 of the Practice Act, the Supreme Court of Illinois does not reexamine controverted questions of fact, but it nevertheless examines the evidence bearing upon the issues of fact determined to see what principles of law are involved in a controversy, and whether they are properly applied by the trial court. Sexton v. Chicago, 107 Illinois, 323, 326; Postal Telegraph Co. v. Lathrop, 131 Illinois, 575, 580. In this case the Supreme Court recapitulated the evidence as being that on which the trial court rendered judgment in order to disclose the basis of the ruling that plaintiff was entitled to recover. The affirmance by the Appellate Court of the judgment of the trial court without any recital of the facts found conclusively settles all controverted questions of fact necessary to support the judgment. Utica de Deer Park Bridge Co. v. Iron Commissioners, 101 Illinois, 518; Bernstein v. Roth, 145 Illinois, 189. If the Appellate Court disposes of a cause on 654. OCTOBER TERM, 1895. Statement of the Case. a finding of facts different from the finding of the trial court, it is its duty to recite in its final judgment the facts so found, (Rev. Stat. Ill. c. 110, § 87; 2 Starr & Curt. 1842,) but there was no such finding of facts by the Appellate Court here, and it is to be presumed that that court found the facts in the same way as did the trial court. As the Supreme Court proceeded to judgment upon the facts as thus determined, we must accept its view as controlling. Writ of error dismissed. UNITED STATES v. THORNTON. APPEAL FROM THE COURT OF CLAIMS. No. 13S. Submitted December 20, 1895. — Decided January 6,1896. The claimant originally enlisted at Washington in August, 1878, and was discharged at Mare Island, California, November 6, 1886, receiving (under the provisions of Rev. Stat. § 1290, as amended by the act of February 27, 1877,) travel pay and commutation of subsistence from Mare Island to Washington. He did not return to Washington, but November 10, 1886, reënlisted at Mare Island as a private, and in the course of his service was returned to Washington, where, at the expiration of two years and four months, he was discharged at his own request. Held, That, as the service was practically a continuous one, and his second discharge occurred at the place of his original enlistment, he was not entitled to his commutation for travel and subsistence to the place of his second enlistment. The petition in this case set forth that the petitioner enlisted as a private in the marine corps, November 10, 1886, at Mare Island, California, to serve five years, and was discharged March 13,1889, at Washington D. C., by order of the Secretary of the Navy ; that, under the provisions of Rev. Stat. § 1290, he was entitled to receive transportation and subsistence or travel pay and commutation of subsistence from the place of his discharge to that of his enlistment ; that he made written application for the same to the Treasury Department, and was informed that his claim was adjusted and transmitted UNITED STATES v. THORNTON. 655 Statement of the Case. to the Second Comptroller, who declined to allow the case, on the ground that he was discharged at his own request before the expiration of his term of enlistment. The case having been heard before the Court of Claims, that court upon the evidence found the following facts: 1. The claimant enlisted at the age of 13 years 1 month and 3 days, in the marine corps of the United States, at Washington, D. C., on August 29, 1878, for a term of 7 years 10 months and 27 days, and was then “ bound to learn music ” in said corps. April 17, 1880, he was rated as a drummer. November 6, 1886, he was discharged from the service at Mare Island, California, as a drummer. November 10, 1886, he reenlisted at Mare Island, California, as a private in said corps for a term of fi ve years. On March 13, 1889, before the expiration of the last-mentioned term of enlistment, Thornton, as a private in said corps, was, at his own request, and not by way of punishment for an offence, discharged from service at the Marine Barracks, Washington, D. C., by direction of the Secretary of the Navy. The claimant was settled with in full for all pay and allowances except transportation and subsistence in kind, or, in lieu thereof, travel pay and commutation of subsistence, from Washington, D. C., the place of his discharge, to Mare Island, California, the place where he had reenlisted. And when he was discharged, at the end of his term of enlistment, he received travel pay and commutation of subsistence computed at the rate of one day for every twenty miles of the distance from Mare Island, California, to Washington, D. C. 2. The travel pay and commutation of subsistence of a private in the marine corps when discharged in the third year of his second term of enlistment, and when he is allowed the same, are stated by the proper accounting officers of the Treasury Department to be one day’s pay at 60 cents per day, and one ration commuted at 30 cents for each twenty miles of the distance from place of discharge to place of last enlistment; and in the settlement of accounts they adopt 3136 miles as the distance from Washington, D. C., to Mare Island, California. 656 OCTOBER TERM, 1895. Opinion of the Court. According to this practice the travel pay and commutation of subsistence on such a discharge would be for — 157 days’ pay, at 60 cents........................................ $94 20 157 rations, at 30 cents........................................... 47 10 Total........................................... $141 30 3. Under a long-standing construction by the accounting officers of the Treasury Department of the law embraced in section 1290 of the Revised Statutes, it has been the practice to refuse travel pay and commutation of subsistence to enlisted men from the place of their discharge to the place of enlistment, when they have been discharged at their own request prior to the expiration of their term of enlistment. The only exception'made under this practice is when an enlisted man is discharged at his own request after twenty years of faithful service. (Army Regulations, 1863, par. 163.) 4. Before bringing suit here the claimant presented the claim set forth in his petition to the proper accounting officers of the Treasury Department, and it was disallowed in accordance with the practice mentioned in finding 3. The court also found as a conclusion of law, that the claimant was entitled to recover of the defendants the sum of one hundred and forty-one dollars and thirty cents ($141.30), for which amount judgment was entered, -and the government appealed. J/r. Assistant Attorney General Dodge for appellants. Air. Robert Thornton, appellee, submitted on the record. Me. Justice Brown delivered the opinion of the court. By Rev. Stat. § 1290, as amended by the act of February 27, 1877, c. 69, 19 Stat. 240, 244, “ when a soldier is discharged from the service, except by way of punishment for an offence, he shall be allowed transportation and subsistence from the place of his discharge to the place of his enlistment, enrolment, or original muster into the service. The Government may furnish the same in kind, but in case it shall not do so, he shall be allowed travel pay and commutation of subsistence, for such time as may be sufficient for him to travel from the place of discharge to the place of his enlistment, en- UNITED STATES v. THORNTON. 657 Opinion of the Court. rolment, or original muster into the service, computed at the rate of one day for every twenty miles.” The case was disposed of in the court below as one depending solely upon the question whether a soldier, who is discharged from the service by his own consent, shall, under the above section, be allowed the transportation and subsistence therein provided for. We do not find it necessary to express an opinion upon this question, as there is another point apparently not called to the attention of the Court of Claims, upon which we think the case must be reversed. The transportation provided for is “ from the place of his discharge to the place of his enlistment, enrolment or original muster into the service.” Claimant was originally enlisted at Washington in August, 1878, and was discharged at Mare Island, California, November 6, 1886, receiving, under the provisions of the above section, travel pay and commutation of subsistence from Mare Island to Washington. He did not return to Washington, however, but on the fourth day thereafter (November 10) reenlisted at Mare Island as a private, and in the course of his service was returned toWashington, where, at the expiration of two years and four months, he was discharged at his own request, and now claims transportation and commutation of subsistence from Washington to Mare Island as the place of his enlistment, amounting to $141.30. The result is that, notwithstanding his original enlistment and final discharge were both at Washington, he receives $282.60 for travel arid subsistence twice across the continent without ever having, so far as it appears, expended a dollar or travelled a mile. These allowances are both of them presumptively for expenses actually incurred, as is evident from the provision that they may be furnished in kind, and are designed to reimburse the soldier for all necessary outlays of returning to the place of his enlistment, which is treated as presumptively his home. Indeed, the law of January 11,1812, c. 14, originally provided, 2 Stat. 671, 674, that the travel and subsistence should be allowed from the place of discharge to the place of residence of the claimant. By Bev. Stat., however, § 1290, Congress sub-VOL. clx—42 658 OCTOBER TERM, 1895. Opinion of the Court. stituted for place of residence the expression “ place of enlistment, enrolment or original muster into the service,” the purpose of which was, doubtless, to protect the government against the soldier choosing a distant place for his assumed residence and recovering a large mileage, to which he was not justly entitled. The presumption, however, that these allowances are for expenses actually incurred is not absolutely conclusive, and if it be shown that the soldier cannot possibly intend to incur the expense for which the allowance is made, or for some other reason he is not within the spirit of the act, he is not entitled to the allowance. His claim, therefore, should be based upon something more than a mere technicality. If, for example, petitioner’s discharge and reenlistment at Mare Island had been cotemporaneous acts, he would clearly not have been entitled to travel and subsistence to Washington; and such we understand to have been the practice of the Department. So, if such discharge and reenlistment were so near together that they constituted, practically, a continuous service, we think the second enlistment may be treated as a reenlistment, and if the soldier be returned to the place of his original enlistment and there discharged, he would not be entitled to an allowance for travel and subsistence. In the case of United States v. Alger, 151 U. S. 362; 152 U. S. 384, where an officer resigned one day, and was appointed to a higher grade the next day, it was held that, for the purpose of computing longevity pay, he was to be considered as having been engaged in a continuous service. Bounties to private soldiers, in the form of increased pay after five years’ service, are allowed by Rev. Stat. § 1282 and § 1284, to those who reenlist within one month (since extended to three months, act of August 1, 1894, c. 179, § 3, 28 Stat. 215, 216) after having been honorably discharged. This would seem to indicate an intention on the part of Congress to regard a reenlistment within thirty days as practically a continuous service for the purpose of additional pay, though not necessarily so for the purposes of transportation and subsistence. In this case we are able to take judicial notice of the fact UNITED STATES v. THORNTON. 659 Opinion of the Court. that claimant could not possibly have travelled from Mare Island to Washington and back, within the four days which elapsed between his discharge and his reenlistment, and hence, if he intended to reenlist, that he received there an allowance to which he was not justly entitled, and, as the second discharge is at the place of his original enlistment, he is not entitled to another mileage across the continent. It will, perhaps, not be just to say of the claimant that the interval which elapsed between his discharge as a drummer and his reenlistment as a private at Mare Island, was for the purpose of drawing transportation and subsistence to Washington, but the case at least suggests that possibility. Nor do we undertake to say that the paymaster was not fully justified in paying the claimant his transportation and subsistence when originally discharged at Mare Island, since it was manifestly impossible for him to know whether the claimant intended to reenlist or not; but under the circumstances we think the service should be treated as a continuous one. Indeed, it is somewhat doubtful whether this is not specially provided for by § 1290, which allows transportation and subsistence from the place of his discharge “to the place of his enlistment, enrolment, or original muster into the service.” If the word “original” preceded the word “enlistment” this construction would be freer from doubt, but the section as it reads certainly lends support to the theory that the allowances were not intended as a mere bounty. Whether the claimant should be recharged, after his reenlistment, with the travel and subsistence allowed him on his first discharge raises a question which is not presented by the record in this case, and upon which we do not feel warranted in expressing an opinion. Other considerations may have a bearing upon this question, which do not enter into the present controversy. If, for instance, the claimant did not intend to reenlist when first discharged, but subsequently changed his mind, it does not necessarily follow that he should be recharged these allowances, if the government chose to reenlist him. The question at issue concerns only the propriety of the second claim and not of the first allowance. The case 660 OCTOBER TERM, 1895. Statement of the Case. is a somewhat exceptional one, and all that we decide is that, where the service is practically a continuous one, and the soldier’s second discharge occurs at the place of his original enlistment, he is not entitled to his commutation for travel and subsistence to the place of his second enlistment. The judgment of the Court of Claims is, therefore, Reversed, and the case remanded with directions to dismiss the petition. FIRST NATIONAL BANK OF GARNETT v. AYERS. EEEOE TO THE SUPBEME COUET OF THE STATE OF KANSAS. No. 446. Submitted January 7,1896. — Decided January 27, 1896. The single fact that the statutes of Kansas regulating the assessment and taxation of shares in national banks permit some debts to be deducted from some moneyed capital, but not from that which is invested in the shares of national banks, is not sufficient to show that the amount of moneyed capital in the State of Kansas from which debts may be deducted, as compared with the moneyed capital invested in shares of national banks, is so large and substantial as to amount to an illegal discrimination against national bank shareholders, in violation of the provisions of Kev. Stat. § 5219. This was a writ of error to the Supreme Court of Kansas to review a judgment of that court affirming the judgment of the District Court of Anderson County, which was in favor of the defendants, and for costs against plaintiff. The action was brought to restrain the defendants from levying upon the property of the plaintiff in error for the purpose of collecting a warrant, issued for the collection of taxes upon the stockholders of the bank on the ground that certain deductions claimed on the part of some of the stockholders from the assessment upon their shares of stock were not allowed them, as they claimed they should have been, under the statutes of the United States. The petition of the plaintiff in error stated the facts upon FIRST NATIONAL BANK OF GARNETT v. AYERS. 661 Statement of the Case. which it was alleged the cause of action arose, and the defendants voluntarily entered appearance in the cause, and thereupon an agreement was signed by the parties to the action setting forth the facts upon which the case was to be tried. The material portion of the agreement set forth that the plaintiff was a corporation organized under the laws of the United States, with its office at the city of Garnett, Anderson County, Kansas. The defendant Ayers was sheriff of the county of Anderson during all the time mentioned in the complaint, and the defendant Hargrave during such time was treasurer of that county. The plaintiff was a national bank with a capital stock of $75,000, divided into 750 shares of the par value of $100 each; the actual value of such shares of stock was $100 per share on the first day of March, 1890. On the day last named certain stockholders, named in the statement, were justly indebted and owed in good faith the several sums of money set opposite their respective names in plaintiff’s petition. These debts were not owing to any person, company or corporation as depositors in any bank or banking association, or any person or firm engaged in the business of banking in Kansas or elsewhere, nor were they debts owing on account of any of the things named in the Kansas statute hereinafter alluded to. The stockholders owing such debts duly complied with the statutes of Kansas in asking to be allowed to deduct from the value of their stock the amount of the debts which they were justly owing in good faith, as above stated. This was refused by the proper authorities, and an assessment was made against the named stockholders of the plaintiff without allowing any such deductions as claimed, and the taxes so levied on the stock held by the stockholders amounted to the sum of about $2000. The debts of the stockholders were all of the kind and character that could be deducted from “credits” under the statutes of Kansas, and due and legal demand was made to have such debts deducted from the value of the stock, which was refused. The debts were justly due and owing on the first of March, 1890, and no part of them had been deducted from the “ credits ” at any time or place during that year. The plaintiff paid the taxes assessed against its stockholders who did not 662 OCTOBER TERM, 1895. Statement of the Case. claim any deductions, and the only taxes remaining due were those assessed against the named stockholders who claimed deductions for their debts, as above stated. Other facts were agreed upon which it is not necessary to mention for the purpose of discussing the question involved in this case. Several statutes of the State of Kansas are set forth, the first being the one which permits an action of this kind to be brought for the purpose of enjoining an illegal levy of any tax, charge, or assessment. Section 6847, General Statutes of Kansas, (to be found in vol. 2 of those laws,) defines the different terms used in the chapter on taxation. In this section the term “ credit ” is defined as follows: “ The term ‘ credit ’ when used in this act shall mean and include every demand for money, labor, or other valuable thing, whether due or to become due, but not secured by lien on real estate.” Section 6851 of the same General Statutes permits a deduction of debts from “ credits.” That part of the section bearing upon this subject is as follows: “Debts owing in good faith by any person, company or corporation may be deducted from the gross amount of credits belonging to such person, company or corporation : Provided, Such debts are not owing to any person, company or corporation as depositors in any bank or banking association, or with any person or firm engaged in the business of banking in this State or elsewhere; and the person, company or corporation making out the statement of personal property to be given to the assessor, claiming deductions herein provided for, shall set forth both the amount and nature of the credits, and the amount and nature of his debts sought to be deducted; but no person, company or corporation shall be entitled to any deduction on account of any bond, note or obligation given to any mutual insurance company, or deferred payment, or loan for a policy of life insurance, nor on account of any unpaid subscription to any religious, literary, scientific or benevolent institution or society : Provided, That in deducting debts from credits no debt shall be deducted where said debt was created by a loan on government bonds or other taxable securities.” FIRST NATIONAL BANK OF GARNETT v. AYERS. 663 Statement of the Case. Section 1, chapter 84, of the Session Laws of Kansas for 1891 provides for the taxation of bank stock, and is as follows: “ Section 1. That section 6868 of the General Statutes of 1889 be amended as follows: Sec. 6868. Stockholders in banks and banking associations and loan and investment companies, organized under the laws of this State or the United States, shall be assessed and taxed on the true value of their shares of stock in the city or township where such banks, banking associations, loan or investment companies are located; and the president, cashier or other managing officer thereof shall, under oath, return to the assessor on demand a list of the names of the stockholders and amount and value of stock held by each, together with the value of any undivided profit or surplus; and said banks, banking associations, loan or investment companies shall pay the tax assessed upon said stock and undivided profits or surplus, and shall have a lien thereon until the same is satisfied: Provided, That if from any causes the taxes levied upon the stock of any banking association, loan or investment company shall not be paid by said corporation, the property of the individual stockholders shall be held liable therefor: Provided further, That if any portion of the capital stock of any bank or banking association or loan or investment company shall be invested in real estate, and said corporation shall hold a title in fee sim-ple thereto, the assessed value of said real estate shall be deducted from the original assessment of the paid-up capital stock of said corporation, and said real estate shall be assessed as other lands or lots: And provided further, That banking stock or loan and investment company stock or capital shall not be assessed at any higher rate than other property : And provided further, That the provisions of this act shall apply to all mutual, fire and life insurance companies or associations having assets, accumulations, money or credits, and doing business under the laws of this State: And provided further, That such assets, money, and credits, held and under the control of such mutual fire and life insurance companies or associations, shall be subject to assessment and taxation.” 664 OCTOBER TERM, 1895. Opinion of the Court. These are the only sections of the Kansas statute that the plaintiff in error claims have any bearing upon this case, and counsel for plaintiff in error states that the only really important question herein is the right of stockholders of a national bank to treat their stock therein as a credit from which they may be allowed to deduct the debts which they are owing in good faith. Upon the above agreed statement of facts the court, after due consideration, found generally for the defendants, and entered judgment in their favor for the costs of this action against the plaintiff, to which finding and judgment of the court plaintiff at the time duly excepted. The plaintiff also filed its motion for a new trial, which motion was by the court overruled, and duly excepted to by plaintiff. The summons in error issued from the Supreme Court of Kansas was duly served, and the record removed into that court for review, where, after argument, the judgment of the court below was affirmed with costs. 53 Kansas, 463, upon the opinion in Dutton v. Bank &c., 53 Kansas, 440. The plaintiff thereupon sued out a writ of error from this court, directed to the Supreme Court of Kansas, and the record is now here for review. Mr. J. TP. Gleed for plaintiff in error. Mr. Abraham Bergen and Mr. C. T. Richardson for defendants in error. Mr. Justice Peckham, after stating the case, delivered the opinion of the court. By the decision of the Supreme Court of Kansas, section 6847, General Statutes of that State, defining the word “ credit ” as used in the chapter providing for the assessment and collection of taxes, was held not to include shares of stock in a national or state bank, and the owners of such shares were held to have no right under that statute to deduct from the assessed value of their shares the amount of their debts. This court is bound by the interpretation given to the Kansas statute by the Supreme Court of that State, People v. Weaver> FIRST NATIONAL BANK OF GARNETT v. AYERS. 665 Opinion of the Court. 100 IT. S. 539, 541, and the only question that remains to be decided by us is whether, under that construction, the statute is in conflict with section 5219 of the Revised Statutes of the United States, which provides as follows: “Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares in assessing taxes imposed by authority of the State within which the association is located, but the legislature of each State may determine and direct the manner and place of taxing all the shares of national banking associations located within the State, subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, and that the shares of any national banking association owned by non-residents of any State shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county or municipal taxes to the same extent, according to its value, as other real property is taxed.” The plaintiff in error claimed that an illegal discrimination was made against the holders of national bank stock, because the statute of the State of Kansas permits certain kinds of debts owing in good faith by any person, company or corporation to be deducted from the gross amount of credits belonging to such person, company or corporation in listing their property for taxation, while owners of shares of stock in national banks are not allowed to deduct their indebtedness from the value of their shares of stock, and for that reason the plaintiff says that the Kansas statute is in conflict with the above cited section 5219 of the statutes of the United States. It will be seen that the term “ credit,” when used in the Kansas statute, is defined by that statute to mean and include every demand for money, labor or other valuable thing, whether due or to become due, but not secured by a lien on real estate ; and it is only from such credits, so defined, that the class of debts named in the statute and owing in good faith by any person, company or corporation may be 666 OCTOBER TERM, 1895. Opinion of the Court. deducted. There is no proof in the case as to the proportion which credits, from which such debts may be deducted, bear to the whole amount of the credits owned in the State, nor is there any proof as to what proportion the entire credits owned in the State bear to other moneyed capital owned therein. Debts owing to any person, company or corporation as depositors in any bank or banking association, or with any person or firm engaged in the business of banking in Kansas or elsewhere, cannot be deducted; and no person, company or corporation is entitled to any deduction on account of any bond, note or obligation given to any mutual insurance company, or deferred payment or loan for a policy of life insurance; nor on account of any unpaid subscriptions to any religious, literary, scientific or benevolent institution or society; nor can any debt be deducted from credits where the debt was created by a loan on government bonds or other taxable securities. (Section 6851, General Statutes of Kansas.) It is thus seen that there is a very large and important class of what is termed moneyed capital from which no deductions are permitted on account of debts. The statute treats shares of stock in a national bank upon a perfect equality and in the same way as shares of stock in a state bank for the purpose of assessment and taxation. In Mercantile Bank v. Nevo York, 121 U. S. 138, it was held that the main purpose of Congress in fixing limits to taxation on investments in shares of national banks was to render it impossible for a State in levying such a tax to create and foster an unequal and unfriendly competition by favoring state institutions or individuals carrying on a similar business and operations and investments of a like character. Mr. Jus-tice Matthews, in delivering the opinion of the court in the above cited case, gave an exhaustive review of the cases which had been decided in this court up to that time, under this section of the United States statute, and it is evident from the opinion and decision of the court in that case that the intent of the United States statute was to prevent an unjust discrimination against the moneyed capital invested m shares of national banks, by rendering it “ impossible for the FIRST NATIONAL BANK OF GARNETT v. AYERS. 667 Opinion of the Court. State in levying a tax on such shares to create and foster an unequal and unfriendly competition by favoring institutions or individuals carrying on a similar business and operations and investments of a like character.” Mercantile Bank case, supra, 155. . From the record in this case it is wholly impossible to determine that there is any discrimination against the holders of national bank stock. In order to come to a decision in favor of the plaintiff in error it would be necessary for this court to take what counsel for plaintiff calls judicial notice of what is claimed to be a fact, viz., that the amount of moneyed capital in the State of Kansas from which debts may be deducted, as compared with the moneyed capital invested in shares of national banks, was so large and substantial as to amount to an illegal discrimination against national bank shareholders. This we cannot do. There is no proof whatever upon the subject. The state court has itself determined from its own knowledge that the credits from which debts may be deducted do not constitute a large or even material part of the moneyed capital of the State, and, on the contrary, that court says that debts secured by liens on real estate, money invested in corporate stocks of all kinds and descriptions, including railroad, banking, insurance, loan and trust companies, and all the multifarious forms of moneyed securities, moneys on deposit subject to call, and other forms of invested capital, constitute the great bulk of the moneyed capital in that State, and from all such moneyed capital no deduction for debts is allowed. As the record appears there is no fact of which the court can take judicial notice. The relative proportions in which the moneyed capital of the State of Kansas is invested in the various kinds of securities to be therein found, this court cannot judicially know. When proof shall be made regarding that matter, it may then be determined intelligently whether, within the case of The Mercantile Bank, supra, there has been a real discrimination against the holders of national bank shares and hence a violation of the above cited act of Congress. The single fact that the statute of Kansas per- 668 OCTOBER TERM, 1895. Syllabus. mits some debts to be deducted from some moneyed capital, but not from that which is invested in the shares of national banks, is not sufficient to show such violation. The judgment must be Affirmed. UNITED STATES v. GETTYSBURG ELECTRIC RAILWAY COMPANY. SAME v. SAME.1 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE EASTERN DISTRICT OF PENNSYLVANIA. Nos. 599, 629. Argued January 8, 9,1896. — Decided January 27, 1896. An appropriation by Congress for continuing the work of surveying, locating, and preserving the lines of battle at Gettysburg, Pennsylvania, and for purchasing, opening, constructing, and improving avenues along the portions occupied by the various commands of the armies of the Potomac and Northern Virginia on that field, and for fencing the same; and for the purchase, at private sale or by condemnation, of such parcels of land as the Secretary of War may deem necessary for the sites of tablets, and for the construction of the said avenues; for determining the leading tactical positions and properly marking the same with tablets of batteries, regiments, brigades, divisions, corps, and other organizations, with reference to the study and correct understanding of the battle, each tablet bearing a brief historical legend, compiled without praise and without censure, is an appropriation for a public use, for which the United States may, in the exercise of its right of eminent domain, condemn and take the necessary lands of individuals and corporations, situated within that State, including lands occupied by a railroad company. Any act of Congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, and which is germane to and intimately connected with and appropriate to the exercise of some one or all of the powers granted by Congress, must be valid, and the proposed use in this case comes within such description. 1 The docket title of each of these cases was United States v. A certain Tract of Land in Cumberland Township, Adams County, State of Pennsylvania. UNITED STATES u GETTYSBURG ELECTRIC R’Y. 669 Statement of the Case. The mere fact that Congress limits the amount to be appropriated for such purpose does not render invalid the law providing for the taking of the land. The quantity of land which should be taken for such a purpose is a legislative, and not a judicial, question. When land of a railroad company is taken for such purpose, if the part taken by the government is essential to enable the railroad corporation to perform its functions, or if the value of the remaining property is impaired, such facts may enter into the question of the amount of the compensation to be awarded. The court below can, before a new trial, authorize the allegation as to the decision by the Secretary of War upon the necessity of taking the land to be amended, if necessary. These are two writs of error to the Circuit Court of the United States for the Eastern District of Pennsylvania. They involve the same questions. By the act of Congress, approved August 1, 1888, c. 728, 25 Stat. 357, entitled ° An act to authorize condemnation of land for sites of public buildings and for other purposes,” it is provided : “ That in every case in which the Secretary of the Treasury, or any other officer of the Government, has been or hereafter shall be authorized to procure real estate for the erection of a public building or for other public uses, he shall be and hereby is authorized to acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so.” By the act of Congress, approved March 3, 1893, c. 208, 27 Stat. 572, 599, generally called the Sundry Civil Appropriation act, it was provided, among other things, as follows : “ Monuments and Tablets at Gettysburg. For the purpose of preserving the lines of battle at Gettysburg, Pennsylvania, and for properly marking with tablets the positions occupied by the various commands of the armies of the Potomac and of Northern Virginia on that field, and for opening and improving avenues along the positions occupied by troops upon those lines, and for fencing the same, and for determining the leading tactical positions of batteries, regiments, brigades, divisions, corps and other organizations, with reference to the study and correct understanding of the battle, and to mark the same 670 OCTOBER TERM, 1895. Statement of the Case. with suitable tablets, each bearing a brief historical legend, compiled without praise and without censure, the sum of twenty-five thousand dollars, to be expended under the direction of the Secretary of War.” Subsequently to the passage of that act and on the 5th of June, 1894, 28 Stat. 584, a joint resolution of Congress was approved by the President, which, after reciting the passage of the act of 1893, and the appropriation of the sum of $25,000 thereby, contained the further recital that the sum of $50,000 was then under consideration by Congress as an additional appropriation for the same purposes, and that it had been recently decided by the United States court, sitting in Pennsylvania, that authority had not been distinctly given for the acquisition of such land as may be necessary to enable the War Department to execute the purposes declared in the act of 1893, and that there was imminent danger that portions of the battlefield might be irreparably defaced by the construction of a railroad over the same, thereby making impracticable the execution of the provisions of the act of March 3, 1893, it was, therefore, “Resolved, By the Senate and House of Representatives of the United States of America in Congress assembled, that the Secretary of War is authorized to acquire by purchase (or by condemnation) pursuant to the act of August first, eighteen hundred and eighty-eight, such lands, or interest in lands, upon or in the vicinity of said battlefield, as in the judgment of the Secretary of War may be necessary for the complete execution of the act of March third, eighteen hundred and ninety-three: Provided, That no obligation or liability upon the part of the government shall be incurred under this resolution, nor any expenditure made except out of the appropriations already made and to be made during the present session of this Congress.” * A further appropriation of $50,000 was made for this purpose by the act of August 18, 1894, c. 301, 28 Stat. 372, 405, the same session of Congress. Acting under the authority of these various statutes and joint resolution, the United States District Attorney for the Eastern District of Pennsylvania, by direction of the Attorney UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 671 Statement of the Case. General, filed a petition in the name of the United States for the purpose of condemning certain lands therein described, for the objects mentioned in the acts of Congress. The petition in the first case recited the foregoing facts, and also stated the inability to agree with the owners upon the price of the land desired, and asked for the appointment of a jury, according to the law of the State of Pennsylvania in such case provided. The second section of the act of Congress, approved August 1, 1888, above mentioned, provides that the practice, pleadings, forms and modes of proceedings are to conform so far as may be to those existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held. The Gettysburg Electric Railway Company answered this petition, and set up the fact that it was a corporation existing under the laws of Pennsylvania, and that by virtue of its charter it had the power to build its road along a certain portion of the Gettysburg borough limits, described in the answer; that it had acquired as a part of a route of one of the branches of its road, and for the purpose of using the same as a part of its right of way, the tract of land particularly mentioned and described in the petition, and which is the subject of the condemnation proceedings. It alleged that the effect of the condemnation of the strip of ground would be to cut off a particular branch railway or extension belonging to it, and destroy its continuity and prevent its construction and operation. The company further answered that the greater part of the appropriation of $25,000, under the act of March 3, 1893, had already been expended for the purposes stated therein, and that the balance remaining to the credit of the appropriation was less than $10,000. The electric railway company afterwards filed a further or amended answer, and therein set forth that the entire balance remaining unexpended of the appropriation of $25,000, under the act of March 3, 1893, and of $50,000, which had been appropriated by the act approved August 18, 1894, were covered by contracts already made under the authority of the Secretary of War, and that there was not in point of fact, at that time, any part of either appropriation available for the 672 OCTOBER TERM, 1895. Statement of the Case. purpose of paying any judgment which might be recovered by the company in these condemnation proceedings. Evidence was given on the question of the value of the land to be taken, and on the fifth of November, 1894, the jury filed a report awarding the sum of $30,000 as the value of the land proposed to be taken in the first or main proceeding. The Gettysburg Electric Railway Company duly filed exceptions to the award, and on the same day appealed therefrom. The United States also appealed. The case was argued, and in April, 1895, an order was entered that the first and second^ exceptions filed by the defendant be sustained and that the petition of the United States be dismissed. Those two exceptions are as follows: “1. The act of Congress approved August 1, 1888, provides for the acquisition of real estate by the United States by condemnation only for the erection of public buildings or for other public uses. It does not appear in the petition of Ellery P. Ingham, Esq., United States Attorney, that the Secretary of War has been authorized to procure the tract of land mentioned in the fifth paragraph thereof, belonging to the Gettysburg Electric Railway Company, for the erection of a public building or for other public uses. The purposes named for the expenditure of the appropriation in the act of Congress of March 3, 1893, are not such public uses as authorize the condemnation by the United States of the real estate of private persons.” “2. The purpose specified in the sixth paragraph of the said petition, namely, ‘ of preserving the lines of battle,’ ‘ properly marking with tablets the positions occupied,’ and ‘ determining the leading tactical positions of batteries, regiments, brigades, divisions, corps and other organizations with reference to the study and correct understanding of the battle, and to mark the same with suitable tablets,’ are none of them public uses or purposes, authorizing the condemnation by the United States of private property.” The second proceeding was taken for the purpose of condemning a certain other portion of land containing a little over two acres. There was no trial in that matter, but the UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 673 Argument for the Gettysburg Electric Railway Company. case was dismissed, under the motion made by the defendant to quash the proceedings, upon the same grounds stated in the main case. The substance of the holding of the circuit judge was that the intended use of the land was not that kind of a public use for which the United States had the constitutional power to condemn land. The district judge dissented from that view and was of the opinion that the use was public, and that the United States had the power to condemn land for that purpose. Mr. Solicitor General and Mr. Attorney General for the United States. Mr. Thomas Hart, Jr., for the Gettysburg Electric Railway Company. Mr. Charles Heebner was with him on the brief. I. The purposes named in the act of March 3,1893, are not public uses, and the United States are not authorized to condemn private property for them. We concede that the United States have the right to take private property for certain public uses; but, on the other hand, it is well settled that this right cannot be exercised, within the limits of a State, for a purpose which is not incident to some power delegated to the General Government. Kohl v. United States, 91 U. S. 367; Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641; United States v. Box, 94 U. S. 315; Yan Brocklin v. Tennessee, 117 U. S. 151; Shoemaker v. United States, 147 U. S. 282. The question, therefore, for consideration is whether the four purposes named in the act, of 1893, namely: the preservation of the lines of battle; the marking the positions occupied by the various commands; the opening and improving avenues; and the determination of the leading tactical positions, have such relation to the powers granted by the Constitution as to come within the above stated rule. It is to be observed at the outset that the question of the publicity of the use is not at all determined and concluded by the fact that the sovereign itself is the medium of the exercise VOL. CLX—43 674 OCTOBER TERM, 1895. Argument for the Gettysburg Electric Railway Company. of the power. Such a doctrine would simply put it in the power of the government to take for any purpose it chose. The inquiry must always be: What are the objects to be accomplished — not who are the instruments for attaining them. There would be no limitation on the taking of property by the United States if it were conclusively considered that a use was a public one merely because the property was taken directly into the possession of the government. There is in the decisions a good deal of uncertainty and conflict as to the meaning of the words “public use,” two different classes of views existing — one holding that there must be a use or right of use on the part of the public or some limited portion of it, the other holding that the words are equivalent to public benefit, utility, or advantage. It must be remembered that the question is not, for what purposes may the power of eminent domain be properly exercised by a sovereign State in the absence of restriction. The Constitution provides that private property shall not be taken for public uses without just compensation. These words are a limitation, the same in effect as, “ you shall not exercise this power except for public use.” Numerous cases have so held. Harvey v. Thomas, 10 Watts, 63; United States v. Jones, 109 U. S. 513 ; Twelfth Street Market Company's case, 142 Penn. St. 580; Palairet's Appeal, 67 Penn. St. 479; Keeling v. Grifin, 56 Penn. St. 305; West River Bridge Co. v. Dix, 6 How. 507; Memphis Freight Co. v. Memphis, 4 Cold-well, 419; Sholl v. German Coal Co., 118 Illinois, 427; In re Niagara Falls A Whirlpool Railway, 108 N. Y. 375. There is a difference between the powers of the Federal government and the powers of a state government in acquiring land within that State by the exercise of the right of eminent domain. This difference is thus expressed in Cooley’s Constitutional Limitations, 6th ed. page 645: “As under the peculiar American system the protection and regulation of private rights, privileges and immunities in general belong to the state government, and those governments are expected to make provision for the conveniences and necessities which are usually provided for their citizens UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 675 Argument for the Gettysburg Electric Railway Company. through the exercise of the right of eminent domain, the right itself, it would seem, must pertain to those governments also, rather than to the Government of the Nation; and such has been the conclusion of the authorities. In the new territories, however, where the Government of the United States exercises sovereign authority, it possesses, as incident thereto, the right of eminent domain, which it may exercise directly or through the territorial government; but this right passes from the nation to the newly formed State whenever the latter is admitted into the Union. So far, however, as the General Government may deem it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions — as must sometimes be necessary in the case of forts, lighthouses, military posts or roads and other conveniences and necessities of the Government — the General Government may still exercise the authority, as well within the States and within the Territory under its exclusive jurisdiction, and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the Government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other authority.” The adjudicated cases show the character of the use for which the right to take private property has been sustained. Burt v. Merchants’ Ins. Co., 106 Mass. 356, for a postoffice; Kohl v. United States, 91 U. S. 367, for United States Courts; United States v. Jones, 109 U. S. 513, to improve water communication between the Mississippi and Lake Michigan; United States v. Great Falls Manuf. Co., 112 U. S. 645, for supplying Washington with water; In re League Isla/nd, 1 Brewster, 524,. for a navy yard; Gilmer v. Line Point, 18 California, 229, for a fort; Reddall v. Bryan, 14 Maryland, 444, for water works for Washington; Orr v. Quimby, 54 N. H. 590; United States v. Chicago, 7 How. 185, for military purposes. See also Constitution, Art. I., Sec. 8; Fort Leavenworth Railroad v. Lowe, 114 U. S. 525. 676 OCTOBER TERM, 1895. Argument for the Gettysburg Electric Railway Company. The purposes specified in the various acts of Congress authorizing or regulating the taking of private property for public use are national cemeteries, sites for life-saving stations, lighthouses, for improvement of rivers and harbors, for fortifications and coast defences, and Government Printing Office. The present case is none of these. To what authority in Congress is it germane ? The provision for opening and improving avenues need not be considered. Congress has power to provide only for those highways, whether roads, bridges or railroads, which are intended as a means of communication between the States. California v. Central Pacific Railroad, 127 U. S. 1; Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641; Luxton v. North River Bridge Co., 153 IT. S. 525 ; Monongahela Navigation Co. v. United States, 148 U. S. 312. When this case was argued in the court below the objects of the act of 1893 were referred by the learned United States Attorney to Art. I., Sec. 8, of the Constitution empowering Congress “ to levy and collect taxes, duties, imports and excises, to pay the debts and provide for the common defence and general welfare of the United States.” It is quite sufficient, however, to say in the words of the opinion below, that the power to lay and collect taxes is quite distinct from the right to take private property for public use, and that it is not the power of taxation but the right of eminent domain which is here asserted. This matter is to be looked at solely with reference to what the United States proposes to do by the terms of the act under which these proceedings are conducted. The United States has not yet acquired any ground for a national park. The ground is already acquired, to a large extent, by the Gettysburg Battlefield Memorial Association, a corporation of the State of Pennsylvania, but its purposes and acts cannot be used to help out the action of the United States in the proposed condemnation. The government may purchase land and devote it to a great many purposes which it could not be contended would entitle it to condemn the same against the will of the owner. UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 677 Argument for the Gettysburg Electric Railway Company. When, however, it seeks to take private property it can and will be prevented from accomplishing that purpose if the object be not one which it has power to carry out. It is by no means clear, however, that the United States may condemn land in a State for the purpose of a national park. This question was argued and received some consideration in Shoemaker v. United States, 147 U. S. 282, but the decision was expressly rested upon the ground that the place of the exercise of the power was the District of Columbia, over which Congress has exclusive power of legislation. - II. The appropriation for the payment of thé property taken being entirely inadequate, it is submitted that the proviso to the resolution of June 6, 1894, “that no obligation or liability upon the part of the government shall be incurred under this resolution, or any expenditure made except out of the appropriation already made and to be madç during the present session of this Congress,” renders the whole unconstitutional, nugatory, and void. The first act of March 3, 1893, appropriated the sum of $25,000. The act of August 18, 1894, appropriated the sum of $50,000, and this is the total of the appropriations made during the session of Congress at which the resolution of June 6, 1894, was passed. See proviso thereto. By the supplemental answers it appears that the balance to the credit of the first named appropriation was, February, 1895, $2882.17, and the balance to the credit of the other was, as of the same date, $36,000. It further appears, however, by the answers filed March 20, 1895, that the entire balance remaining unexpended of both of the above mentioned appropriations is covered by contracts already made under the authority of the Secretary of War, for purposes for which the said appropriations were made, and that the execution of the said contracts will require the expenditure of the entire balances remaining of both appropriations. The taking of land from a citizen for the use of the United States cannot be constitutional without a provision being 678 OCTOBER TERM, 1895. Argument for the Gettysburg Electric Railway Company. made for a tribunal for the ascertainment of compensation, and for a method by which payment can be enforced by such proper tribunal, or a pledge of public faith being made that a distinct fund should be held by the government for its payment. The settled and fundamental doctrine is thus stated by Chancellor Kent, 2 Com., 12th ed., 339, note/": “The settled and fundamental doctrine is that government has no right to take private property for public purposes without giving a just compensation; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain.” See also Bloodgood v. Mohawk Hudson River Railroad, 18 Wend. 9 ; People n. Hayden, 6 Hill, 359; Loweree v. Newark, 38 N. J. Law, 151; Connecticut River Railroad v. Commissioners, 127 Mass. 50; In re Sedgeley Avenue, 88 Penn. St. 509; Orr v. Quimby, 54 N. H. 590; Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641, 659; United States v. Great Falls Mfg. Co., 112 U. S. 645. In the present case, although the act of 1888 provides a method of ascertaining damages in cases of condemnation by the United States, there is no adequate fund provided for the payment thereof. Upon an ascertainment in the condemnation proceedings of the damage to the Electric Railway Company, it will have to await the pleasure of Congress before it can obtain payment. III. The act of Congress does not authorize the acquisition of a railway in actual operation. The law is settled that only an intention in express terms or shown to exist by necessary implication, will sustain the taking of property already devoted to a public use. General terms such as “ land,” etc., are not sufficient. In West River Bridge Co. v. Dix, 6 How. 507, Justice Woodbury said, page 543, that the right to take a franchise was subject to the limitation “ that it must be in cases where a clear intent is manifested in the laws, that one corporation and its uses shall yield to another, or another public use under UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 679 Opinion of the Court. the supposed superiority of the latter and the necessity of the case.” It must be admitted that in the act of 1893 there is no expression of an intent to take this railway, or any part of it. The government knew of the situation when the act of 1893 was passed. This company had acquired this strip for the purpose of constructing its railway in 1891. The deeds were recorded in February and November, 1892. The United States could have taken the railroad, but it then said nothing on the subject. IV. A part only of the franchise of a railroad company cannot be condemned and taken. The franchise is indivisible. Mr. Justice Peckham, after stating the case, delivered the opinion of the court. The really important question to be determined in these proceedings is, whether the use to which the petitioner desires to put the land described in the petitions is of that kind of public use for which the government of the United States is authorized to condemn land. It has authority to do so whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the Constitution. Kohl v. United States, 91 U. S. 367 ; Cherokee Nation n. Kansas Railway, 135 U. S. 641, 656 ; Chappell v. United States, 160 U. S. 499. Is the proposed use, to which this land is to be put, a public use within this limitation ? The purpose of the use is stated in the first act of Congress, passed on the 3d day of March, 1893, (the appropriation act of 1893,) and is quoted in the above statement of facts. The appropriation act of August 18, 1894, also contained the following: “ For continuing the work of surveying, locating and preserving the lines of battle at Gettysburg, Pennsylvania, and for purchasing, opening, constructing and improving avenues along the portions occupied by the various commands of the armies of the Potomac and Northern Virginia on that field, and for fencing the same ; and for the purchase, at private sale or by condemnation, of such parcels of land as the Sec- 680 OCTOBER TERM, 1895. Opinion of the Court. retary of War may deem necessary for the sites of tablets, and for the construction of the said avenues; for determining the leading tactical positions and properly marking the same with tablets of batteries, regiments, brigades, divisions, corps and other organizations with reference to the study and correct understanding of the battle, each tablet bearing a brief historical legend, compiled without praise and without censure ; fifty thousand dollars, to be expended under the direction of the Secretary of War.” In these acts of Congress and in the joint resolution the intended use of this land is plainly set forth. It is stated in the second volume of Judge Dillon’s work on Municipal Corporations, (4th ed. § 600,) that when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation. Many authorities are cited in the note, and, indeed, the rule commends itself as a rational and proper one. As just compensation, which is the full value of the property taken, is to be paid, and the amount must be raised by taxation where the land is taken by the government itself, there is not much ground to fear any abuse of the power. The responsibility of Congress to the people will generally, if not always, result in a most conservative exercise of the right. It is quite a different view of the question which courts will take when this power is delegated to a private corporation. In that case the presumption that the intended use for which the corporation proposes to take the land is public, is not so strong as where the government intends to use the land itself. In examining an act of Congress it has been frequently said that every intendment is in favor of its constitutionality. Such act is presumed to be valid unless its invalidity is plain and apparent; no presumption of invalidity can be indulged in ; it must be shown clearly and unmistakably. This rule has been stated and followed by this court from the foundation of the government. Upon the question whether the proposed use of this land is a public one, we think there can be no well founded doubt. UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 681 Opinion of the Court. And also, in our judgment, the government has the constitutional power to condemn the land for the proposed use. It is, of course, not necessary that the power of condemnation for such purpose be expressly given by the Constitution. The right to condemn at all is not so given. It results from the powers that are given, and it is implied because of its necessity, or because it is appropriate in exercising those powers. Congress has power to declare war and to create and equip armies and navies. It has the great power of taxation to be exercised for the common defence and general welfare. Having such powers, it has such other and implied ones as are necessary and appropriate for the purpose of carrying the powers expressly given into effect. Any act of Congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, and which is germane to and intimately connected with and appropriate to the exercise of some one or all of the powers granted by Congress must be valid. This proposed use comes within such description. The provision comes within the rule laid down by Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, 421, in these words : “ Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adequate to that end, which are not prohibited but consist with the letter and spirit of the Constitution, are constitutional.” The end to be attained by this proposed use, as provided for by the act of Congress, is legitimate, and lies within the scope of the Constitution. The battle of Gettysburg was one of the great battles of the world. The numbers contained in the opposing armies were great ; the sacrifice of life was dreadful ; while the bravery and, indeed, heroism displayed by both the contending forces rank with the highest exhibition of those qualities ever made by man. The importance of the issue involved in the contest of which this great battle was a part cannot be overestimated. The existence of the government itself and the perpetuity of our institutions depended upon the result. Valuable lessons in the art of war can now be learned 682 OCTOBER TERM, 1895. Opinion of the Court. from an examination of this great battlefield in connection with the history of the events which there took place. Can it be that the government is without power to preserve the land, and properly mark out the various sites upon which this struggle took place? Can it not erect the monuments provided for by these acts of Congress, or even take possession of the field of battle in the name and for the benefit of all the citizens of the country for the present and for the future? Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the Constitution for the purpose of protecting and preserving the whole country. It would be a great object lesson to all who looked upon the land thus cared for, and it would show a proper recognition of the great things that were done there on those momentous days. By this use the government manifests for the benefit of all its citizens the value put upon the services and exertions of the citizen soldiers of that period. Their successful effort to preserve the integrity and solidarity of the great republic of modern times is forcibly impressed upon every one who looks over the field. The value of the sacrifices then freely made is rendered plainer and more durable by the fact that the government of the United States, through its representatives in Congress assembled, appreciates and endeavors to perpetuate it by this most suitable recognition. Such action on the part of Congress touches the heart, and comes home to the imagination of every citizen, and greatly tends to enhance his love and respect for those institutions for which these heroic sacrifices were made. The greater the love of the citizen for the institutions of his country the greater is the dependence properly to be placed upon him for their defence in time of necessity, and it is to such men that the country must look for its safety. The institutions of our country which were saved at this enormous expenditure of life and property ought to and will be regarded with proportionate affection. Here upon this battlefield is one of the proofs of that expenditure, and the sacrifices are rendered more obvious and more easily appreciated when such a battlefield is preserved by the government UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 683 Opinion of the Court. at the public expense. The right to take land for cemeteries for the burial of the deceased soldiers of the country rests on the same footing and is connected with and springs from the same powers of the Constitution. It seems very clear that the government has the right to bury its own soldiers and to see to it that their graves shall not remain unknown or unhonored. No narrow view of the character of this proposed use should be taken. Its national character and importance, we think, are plain. The power to condemn for this purpose need not be plainly and unmistakably deduced from any one of the particularly specified powers. Any number of those powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred. It is needless to enlarge upon the subject, and the determination is arrived at without hesitation that the use intended as set forth in the petition in this proceeding is of that public nature which comes within the constitutional power of Congress to provide for by the condemnation of land. Second. It is objected that the appropriations made by the several acts of Congress had been exhausted when the amended answers were put in, and that the proviso attached to the joint resolution above mentioned, prohibiting any expenditure other than such as might be appropriated in that session of Congress, renders it impossible for the land owner to obtain payment with any certainty for his property that might be taken from him. Although it is set up in the answer of the electric company to the petition filed on the part of the United States, the fact that the fund appropriated has been exhausted does not appear by any evidence contained in either record. So far as this court can see from the record, there is an appropriation amounting to $75,000, for the purpose of obtaining land, a part of which has been found to be worth $30,000, and the other, and much smaller portion, is not valued. The proviso, therefore, would seem to be immaterial, as the appropriations were much larger than the value of the land to be taken. The mere fact that Congress limited the amount to be appropriated for the purposes indicated does not 684 OCTOBER TERM, 1895. Opinion of the Court. render the law providing for the taking of the land invalid. Shoemaker v. United States, 147 U. S. 282, 302. Mr. Justice Shiras, in delivering the opinion of the court in the case cited, said : “ The validity of the law is further challenged because the aggregate amount to be expended in the purchase of land for the park is limited to the amount of $1,200,000. It is said that this is equivalent to condemning the lands and fixing their value by arbitrary enactment. But a glance at the act shows that the property holders are not affected by the limitation. The value of the land is to be agreed upon, or, in the absence of agreement, is to be found by appraisers to be appointed by the court. The intention expressed by Congress, not to go beyond a certain expenditure, cannot be deemed a direction to the appraisers to keep within any given limit in valuing any particular piece of property. It is not unusual for Congress, in making appropriations for the erection of public buildings, including the purchase of sites, to name a sum beyond which expenditure shall not be made, but nobody ever thought that such a limitation had anything to do with what the owners of property should have a right to receive in case proceedings to condemn had to be resorted to.” If it appeared by proof that the appropriation for the purpose indicated had been exhausted before the proceedings had been commenced to take the land in controversy, or during the hearing, then the provision in the joint resolution directing that no obligation or liability upon the part of the government should be incurred or any expenditure made except out of the appropriations already made and to be made during the then session of Congress, would give rise to a very serious question. It is not now presented. Congress has the power, even now, to appropriate moneys for this purpose in addition to that which it appropriated in the two acts of 1893 and 1894. This court cannot, therefore, upon the record as it stands give judgment for the land owner on the ground that the appropriation for the land has been exhausted in other ways, and that Congress prohibited the incurring of any obligation to a greater extent than the moneys then appropriated. Third. Another objection taken in the court below, though UNITED STATES v. GETTYSBURG ELECTRIC R’Y. 685 Opinion of the Court. not decided by that court, but which counsel for defendant in error now urges as an additional ground for the affirmance of the judgment, is that the land proposed to be taken in this proceeding was already devoted to another public use, to wit, that of the railroad company, and that it does not appear that it was the intention of Congress to take land which was devoted to another public use. The defendant in error concedes what is without doubt true, that this is a question of intention simply ; the power of Congress to take land devoted to one public use for another and a different public use upon making just compensation cannot be disputed. Upon looking at the two acts of Congress and the joint resolution of June 6, 1894, above referred to, in the latter of which it is stated, “ There is imminent danger that portions of said battlefield may be irreparably defaced by the construction of a railway over the same, thereby making impracticable the execution of the provisions of the act of March 3, 1893,” we think it is plainly apparent that Congress did intend to take this very land, occupied and used by this company for its railroad. Further elaboration is unnecessary. It is so plain to our minds that extended argument would be unprofitable. Fourth. It is also objected that the exception below is valid, wherein it is stated that all the land of the railroad company ought to be taken, if any were to be taken. The use for which the land is to be taken having been determined to be a public use, the quantity which should be taken is a legislative and not a judicial question. Shoemaker v. United States, 147 U. S. 282, 298. As to the effect of the taking upon the land remaining, that is more a question of the amount of compensation. If the part taken by the government is essential to enable the railroad corporation to perform its functions, or if the value of the remaining property is impaired, such facts might enter into the question of the amount of the compensation to be awarded. Monongahela Nav. Co. v. United States, 148 U. S. 312, 333, 334. Fifth. It is also objected that the petition does not allege that the Secretary of War has decided it to be necessary to take this land. A perusal of the petition shows that the 686 OCTOBER TERM, 1895. Opinion of the Court. allegation therein contained upon this subject is not very clear. It might possibly be regarded as sufficiently alleged in an argumentative kind of way, but it certainly is not as plainly alleged as it ought to be. The petition, however, can be easily amended on application to the court below before further proceedings are taken. This, we think, completes the review of the material questions presented by the record. The first and important question in regard to whether the proposed use is public or not, having been determined in favor of the United States, we are not disposed to take any very technical view of the other questions which might be subject to amendment or to further proof upon the hearing below. The judgment of the Circuit Court in each case must l>e reversed, and the record remitted to that court with directions to grant a new trial in each. SIOUX CITY AND ST. PAUL RAILROAD COMPANY v. UNITED STATES. PETITION FOK REHEARING. Received December 17,1895. — Decided January 13,1896. The court adheres to its opinion and decision in this case, 159 U. S. 349, and corrects an error in statement in it, which does not, in any .degree, affect the conclusions which were there reached. The case is stated in the opinion. Mr. J. H. Swan and Mr. George B. Young for petitioners. Mr. Justice Harlan delivered the opinion of the court. In the opinion of this court, 159 U. S. 349, 367, it was said: “ Upon examination of the certified list of lands, l)ased on the SIOUX CITY & ST. PAUL R’D v. UNITED STATES. 687 Opinion of the Court. diagram, originally furnished by the railroad company to the Secretary of the Interior and transmitted by the General Land Office to the local land office on the 26th of August, 1867, it is found that the actual area of the odd-numbered sections within the place limits of the Sioux City road, excluding odd-numbered sections within the conflicting place limits of the two roads, contained only 247,476.85 acres; and the actual area within the conflicting place limits of the two roads, according to the same diagram, was 70,705.29 acres.” This was not strictly correct. The diagram referred to was prepared in the Department of the Interior, but it was based on the original survey made and furnished by the railroad company. Other sentences in the same connection are subject to the like criticism. But this inaccuracy of statement does not affect in any degree the grounds upon which the court reached the conclusion that the diagram of 1867 should not control, and that the measurement and diagram of 1887 should be taken as* the basis for determining the area of the odd-numbered sections within place limits. None of the other matters mentioned in the petition for a rehearing require special notice. The views therein presented were fully considered by the court before the original opinion was filed. The point now pressed by counsel as to errors in the matter of addition is immaterial, even if it be well taken; for whatever the excess in the quantity of land received by the railroad company, the result, in the present case, will be the same as stated in the opinion, namely, that the railroad company is not entitled to any of the lands here in dispute, whatever may be the aggregate quantity of acres. The application for rehearing is Denied. 688 OCTOBER TERM, 1895. Statement of the Case. MISSOURI v. IOWA. ORIGINAL. No. 10. Original. Submitted December 17, 1895. — Decided February 8,1896. At the request of the parties, this court, after deciding where is the true and proper southern boundary line of the State of Iowa, appoints a commission to find and remark the same with proper and durable monuments. The State of Missouri, through its Attorney General, filed in this court in vacation its bill, in which, after setting forth the former proceedings had herein for the determination of the boundary line between it and the State of Iowa, which are reported in 6 How. 659, and 10 How. 1, it was further said: “ Complainant states that it is highly important to the States of Iowa and Missouri that the question of boundary should be speedily and finally settled; that heretofore the peace of the people of the States of Missouri and Iowa, especially in the county of Mercer, in the former, and the county of Decatur, in the latter, have been seriously disturbed in consequence of frequent conflicts of jurisdiction arising from differences of opinion as to the location of the said state line between said counties. “ Complainant further states that the State of Missouri has no adequate relief at law, and, as the controversy herein involves questions of jurisdiction and sovereignty, it is respectfully prayed that the State of Iowa may be made a defendant in this proceeding, and that she may be permitted to answer the matters and things herein set forth, and upon a final hearing that the northern boundary line of the State of Missouri, it being the boundary line between the complainant and defendant, be by the order and decree of this court ascertained and established; that the rights of possession, jurisdiction, and sovereignty of the State of Missouri to all the territory south of the line heretofore marked and run out by said J. C. Sullivan MISSOURI v. IOWA. 689 Statement of the Case. in 1816, remarked by the commissioners heretofore named in 1850, and approved by the decree of the Supreme Court of the United States rendered as aforesaid, be restored to said State of Missouri, and that said State of Missouri be quieted in her title thereto, and that the defendant, The State of Iowa, be forever enjoined and restrained from disturbing the said State of Missouri, her officers and her citizens, in the full enjoyment and possession of the territory lying south of said line, and that such other and further relief may be granted as the nature of the case may require.” The State of Iowa, by its Attorney General, filed its answer, denying some of the allegations in the bill, admitting others, making further averments on its own part, and concluding : “ Said respondent, with the view to have an ultimate and final decision of the controversy, prays that this answer may also be treated as a cross-bill, and joins in the prayer of said complainant that the said boundary line between said complainant and respondent be, by the order and decree of this court, ascertained and established, and to that end that a commission be appointed, in such manner as to this court shall be deemed proper, to retrace the line traced and marked by the commission of this court in 1850, and as set forth in the decree of this court in the case of State of Missouri v. The State of Iowa, as aforesaid, and that such retracing of such line thus found be by such commissioners marked with fixed and enduring monuments, and that the title of the State of Iowa in and to all land or territory north of the line thus found and marked be forever quieted in the said respondent, and for such other and further relief as equity and good conscience may require.” To this answer the State of Missouri filed replication as follows: “Complainant, for its reply to respondent’s answer herein, states that it is true, as heretofore alleged in complainant’s petition heretofore filed in this cause, that the officers of the State of Iowa are exercising jurisdiction over territory lying south of the boundary line between the States of Missouri and Iowa. VOL. CLX—44 690 OCTOBER TERM, 1895. Opinion of the Court. “Complainant, for further reply to respondent’s answer herein, states that it is necessary, in order that conflicts of jurisdiction should be avoided between said States, that the true boundary line, as heretofore established under a decree of this court by Hendershott and Minor, in 1850, should be reestablished and relocated, and to this end it is asked that the court may enter a decree relocating and reestablishing said line, and that such other and further orders may be made herein as are necessary to effect the same.” The parties further stipulated, each by its Attorney General, as follows: “ It is hereby agreed that the above entitled cause may be submitted to the court on the petition, answer, and reply of the parties hereto, and if to the court it seems proper that a commission of two civil engineers or surveyors may be appointed to retrace the line established and decreed by the Supreme Court of the United States in the case of The State of Missouri v. The State of Iowa, one of such commissioners to be appointed by the State of Missouri and one by the State of Iowa, and if the parties are unable to agree that they may appoint a third, that such commission shall proceed without unnecessary delay and retrace the line as run and located by Hendershott and Minor in 1850 between the 50th and 55th mile-posts on said line, beginning and ending the survey at such points as may be necessary to ascertain the true original line between said mileposts, and, having found said true line, to mark the same by plain and enduring monuments and make report of their said retracing and survey of said line to this court.” Jfr. R. F. Walker, Attorney General of the State of Missouri, for the complainant. Mr. Milton Remley, Attorney General of the State of Iowa, for the respondent. Mr. Chief Justice Fuller, on the 3d of February, 1896, announced that the Court ordered the following decree to be entered in the case. MISSOURI v. IOWA. 691 Opinion of the Court. This cause coming on to be heard on the original bill filed herein by the State of Missouri agaiiist the State of Iowa, the answer thereto by the State of Iowa, and the reply to said answer by the State of Missouri, and the pleadings and stipulations filed herein by counsel for the respective parties having been duly considered, and the decrees heretofore rendered by this court on February 13, 1849, and on January 3, 1851, with the report of commissioners forming part thereof, in a cause then pending before this court between the said States of Missouri and Iowa in regard to the same boundary line now in controversy having been examined : It is, thereupon, this third day of February, a. d. 1896, ordered, adjudged, and decreed, that the true and proper northern boundary line of the State of Missouri and the true and proper southern boundary line of the State of Iowa is the line run, located, marked, and defined by Hendershott and Minor, commissioners of this court, under the order and decree of this court, as set forth in their report annexed to said decree of January 3, 1851. And it appearing further to the court that the proper boundary line between said States, run, located, and established by Hendershott and Minor, as aforesaid, has, between the fiftieth and fifty-fifth mile-posts on the same, become obliterated, and that the monuments originally placed thereon have been destroyed, therefore it is further ordered, adjudged, and decreed that James Harding of the State of Missouri, Peter Dey of the State of Iowa, and Dwight C. Morgan of the State of Illinois, be and they are hereby appointed commissioners to find and remark with proper and durable monuments such portions of said line so run, marked and located by Hendershott and Minor as have become obliterated, especially between the fiftieth and fifty-fifth mileposts on the same, and that they begin and end such survey at such points along said line as will enable them to definitely relocate and redesignate the same. It is further ordered, that the clerk of this court at once forward to the chief magistrate of each of said States and to each of the commissioners designated by this decree a copy of said decree duly authenticated, and that said commissioners 692 OCTOBER TERM, 1895. Opinion of the Court. request the cooperation and assistance of the state authorities in the performance of the duties imposed upon them by this decree, and proceed with all convenient speed to discharge their duty in relocating and remarking such portions of said line as have become obliterated, as herein directed, and make their report thereof and of their proceedings in the premises to this court on or before the first day of May, 1896, together with a complete bill of costs and charges annexed. And it is further ordered that, should either of said commissioners die or refuse to act or be unable to perform the duties required by this decree, while the court is not in session, the Chief Justice is hereby authorized and empowered to appoint another commissioner to supply the vacancy, and he is authorized to act on such information in the premises as may be satisfactory to himself. It is further ordered, that all costs of this proceeding, including not exceeding ten dollars per day for each commissioner, and the other costs incident to the marking and establishment of this line, shall be paid by the States of Missouri and Iowa equally. So ordered. APPENDIX. i. AMENDMENT TO RULES. SUPREME COURT OF THE UNITED STATES. October Term, 1895. Ordered that the 51st Rule of Practice in Admiralty be amended so as to read as follows: 51. When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libellant, and no replication, general or special, shall be filed, unless allowed or directed by the court on proper cause shown. But within such time after the answer is filed as shall be fixed by the district court, either by general rule or by special order, the libellant may amend his libel so as to confess and avoid, or explain or add to, the new matters set forth in the answer; and within such time as may be fixed, in like manner, the defendant shall answer such amendments. (Promulgated January 27,1896.) 693 IL ASSIGNMENT TO CIRCUITS. SUPREME COURT OF THE UNITED STATES. October Term, 1895. ORDER. There having been an Associate Justice of this court appointed since the commencement of this term, it is ordered that the following allotment be made of the Chief Justice and Associate Justices of said court among the Circuits, agreeably to the act of Congress in such case made and provided, and that such allotment be entered of record, viz.: For the First Circuit, Horace Gray, Associate Justice. For the Second Circuit, Rufus W. Peckham, Associate Justice. For the Third Circuit, George Shiras, Jr., Associate Justice. For the Fourth Circuit, Melville W. Fuller, Chief Justice. For the Fifth Circuit, Edward D. White, Associate Justice. For the Sixth Circuit, John M. Harlan, Associate Justice. For the Seventh Circuit, Henry B. Brown, Associate Justice. For the Eighth Circuit, David J. Brewer, Associate Justice. For the Ninth Circuit, Stephen J. Field, Associate Justice. Announced February 3,1896. 694 INDEX. • ALIEN. See Jurisdiction, E, 3. ALIMONY. See Constitutional Law, 7. AMENDMENT. See Practice, 2. APPEAL. See Constitutional Law, 7; Jurisdiction, E, 2. APPEARANCE. See Jurisdiction, B, 3. ARMY OF THE UNITED STATES. See Claims against the United States. ASSIGNMENT OF ERROR. An assignment of error which indicates the subject-matter in the charge to which the exceptions relate with sufficient clearness to enable the court, from a mere inspection of the charge, to ascertain the particular matter referred to, is sufficient. Hickory v. United States, 408. BOUNDARY LINE. At the request of the parties, this court, after deciding where is the true and proper southern boundary line of the State of Iowa, appoints a commission to find and remark the same with proper and durable monuments. Missouri v. Iowa, 688. CASES AFFIRMED. 1. Moore n. United States, 150 U. S. 57, 61, affirmed and applied to a question raised in this case. Goldsby v. United States, 70. 2. Affirmed upon the authority of Washington Idaho Railroad Company 695 696 INDEX. v. Cœur d'Alene Railway Sf Navigation Company, 160 U. S. 77. Washington èç Idaho Railroad Co. N. Cœur d'Alene Railway Navigation Co., 101. 3. Mills v. Green, 159 U. S. 651, affirmed to the point that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for the appellate court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief, the court will not proceed to a formal judgment, but will dismiss the appeal. New Orleans Flour Inspectors v. Glover, 170. 4. Wood v. Brady, 150 U. S. 18, affirmed and applied to this case. Dougherty v. Nevada Bank, 171. See Corporation, 4 ; Criminal Law, 6 ; Estoppel, 4 ; Indictment, 4 ; Jurisdiction, E, 1; Practice, 1. CASES DISTINGUISHED. See Jurisdiction, A, 6. CLAIMS AGAINST THE UNITED STATES. The claimant originally enlisted at Washington in August, 1878, and was discharged at Mare Island, California, November 6, 1886, receiving, (under the provisions of Rev. Stat. § 1290, as amended by the act of February 27, 1877,) travel pay and commutation of subsistence from Mare Island to Washington. He did not return to Washington, but, November 10, 1886, reënlisted at Mare Island as a private, and in the course of his service was returned to Washington, vrhere, at the expiration of two years and four months, he was discharged at his own request. Held, that, as the service was practically a continuous one, and his second discharge occurred at the place of his original enlistment, he was not entitled to his commutation for travel and subsistence to the place of his second enlistment. United Slates v. Thornton, 654. COINAGE. See Jurisdiction, A, 3. CONFESSION. See Evidence, 8. CONSTITUTIONAL LAW. 1. The Fourteenth Amendment to the Constitution in no way undertakes to control the power of a State to determine by what process legal rights may be asserted, or legal obligations be enforced, pro INDEX. 697 vided the method of procedure adopted for these purposes gives rear sonable notice, and affords fair opportunity to be heard, before the issues are decided. Iowa Central Railway Co. v. Iowa, 389. 2. Whether the court of last resort of a State has properly construed its own constitution and laws in determining that a summary process under those laws was applicable to the matter which it adjudged, is purely the decision of a question of state law, binding upon this court. Ib. 3. It is no denial of a right protected by the Constitution of the United States to refuse a jury trial in a civil cause pending in a state court, even though it be clearly erroneous to construe the laws of the State as justifying the refusal. Ib. 4. In Louisiana the constitution and laws of the State, as interpreted by its highest court, permit the taking, without compensation, of land for the construction of a public levee on the Mississippi River, on the ground that the State has, under French laws existing before its transfer to the United States, a servitude on such lands for such a purpose; and they subject a citizen of another State owning such land therein, the title to which was derived from the United States, to the operation of the state law as so interpreted. Held, that there was no error in this so long as the citizen of another State receives the same measure of right as that awarded to citizens of Louisiana in regard to their property similarly situated. Eldridge v. Trezevant, 452. 5. The provisions of the Fourteenth Amendment to the Constitution do not override public rights, existing in the form of servitudes or easements, which are held by the courts of a State to be valid under its constitution and laws. Ib. 6. The act of August 1, 1888, c. 728, authorizing the Secretary of the Treasury, whenever in his opinion it will be necessary or advantageous to the United States, to acquire lands for a light-house by condemnation under judicial proceedings in a court of the United States for the district in which the land is situated, is constitutional. Chappell v. United States, 499. 7. In 1883 R. had his legal residence in New Jersey, but actually lived in New York. His wife resided in New Jersey,, and filed a bill in the Court of Chancery of that State against him for divorce on the ground of adultery. The defendant appeared and answered, denying the allegations in the bill. In 1886 the plaintiff filed a supplemental bill charging other acts of adultery subsequent to the filing of the bill. The court made an order, reciting the appearance and answer of the defendant to the original bill, directing him to appear on a day named and plead to the supplemental bill, and ordering a copy of this order, with a certified copy of the supplemental bill, to be served on him personally, which was done in the city of New York. The defendant did not so appear and answer, and the further proceedings in the case 698 INDEX. resulted in a decree finding the defendant guilty of the acts of adultery charged “ in the said bill of complaint and the supplemental bill thereto,” granting the divorce prayed for, and awarding the plaintiff alimony. The plaintiff commenced an action in a court of the State of New York to recover alimony on this decree, whereupon the defendant, by the solicitor who had appeared for him and filed his answer to the original bill, applied for and obtained from the chancellor in New Jersey an amendment to the decree so as to make it read that the defendant had been guilty of the crime of adultery charged against him in said supplemental bill. The complaint in the New York case set forth the proceedings and decree in the New Jersey case, and alleged that the defendant had accepted the proceedings as valid, and had, after the decree of divorce, married another wife. The defendant answered, denying that the Court of Chancery in New Jersey had any jurisdiction to enter the decree on the supplemental bill, and admitting his second marriage. On the trial of the New York case, the evidence of an attorney and counsellor of the Supreme Court of New Jersey, as an expert, was offered and received to the effect that in his opinion the chancellor erred in taking jurisdiction and proceeding to judgment on the supplemental bill, without service of a new subpoena in the State, or the voluntary appearance of defendant after the filing of the supplemental bill, and that the law of New Jersey did not warrant him in so doing. The trial resulted in a judgment for defendant, which was sustained by the Court of Appeals upon the ground that the law of New Jersey and the practice of its Court of Chancery had been shown by undisputed evidence to be as stated by the expert. Held, (1) That, in the absence of statutory direction or reported decision to the contrary, this court must find the law of New Jersey applicable to this case in the decree of the chancellor, and that the remedy of the defendant, if he felt himself aggrieved, was by appeal; (2) That the opinion of the expert could not control the judgment of the court in this respect; (3) That the New York courts, in dismissing the plaintiff’s complaint, did not give due effect to the provisions of Article IV of the Constitution of the United States, which require that full faith and credit shall be given in each State to the judicial proceedings of every other State. Laing v. Rigney, 531. See Jurisdiction, A, 12. CONTRACT. 1. Impossibility of performing a contract, arising after the making of it, although without any fault on the part of the covenantor, does not discharge him from his liability under it. Jacksonville, Mayport &c. Railway v. Hooper, 514. 2. A lessee of a building who contracts in his lease to keep the leased building insured for the benefit of the lessor during the term at an agreed INDEX. 699 sum, and fails to do so, is liable to the lessor for that amount, if the building is destroyed by fire during the term. lb. See Corporation, 3, 4; Equity, 1, 2, 5; Seal. CORPORATION. 1. By virtue of the act of March 3, 1887, c. 373, as corrected by the act of August 13, 1888, c. 866, a corporation incorporated by a State of the Union cannot be compelled to answer to a suit for infringement of a trade-mark under the act of March 3, 1881, c. 138, in a district in which it is not incorporated and of which the plaintiff is not an inhabitant, although it does business and has a general agent in that district. In re Keasbey & Mattison Co., 221. 2. When no legislative prohibition is shown, it is within the chartered powers of a railroad company to lease and maintain a summer hotel at its seaside terminus, and such power is conferred on railroads in Florida. Jacksonville, Mayport ^c. Railway v. Hooper, 514. 3. The authority of the president of such company to execute in the name of the company a lease to acquire such hotel may be inferred from the facts of his signing, sealing, and delivering the instrument, and of the company’s entering into possession under the lease and exercising acts of ownership and control over the demised premises, even if the minutes of the company fail to disclose such authority expressly given. Ib. 4. The court adheres to the rule laid down in Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, that a contract of a corporation which is ultra vires in the proper sense is not voidable only, but wholly void and of no legal effect; but it further holds that a corporation may also enter into and engage in transactions which are incidental or auxiliary to its main business, which may become necessary, expedient, or profitable in the care and management of the property which it is authorized to hold, under the act by which it is created. Ib. COURT AND JURY. 1. It was not the province of the court to instruct the jury in this case to render a verdict in the plaintiffs’ favor, and had it done so it would have usurped the province of the jury, by determining the proper inference to be drawn from the evidence, and by deciding on which side lay the preponderance of proof. Bamberger v. Schoolfield, 149. 2. When the charge of the trial judge takes the form of animated argument, the liability is great that the propositions of law may become interrupted by digression, and be so intermingled with inferences springing from forensic ardor, that the jury will be left without proper instructions, their province of dealing with the facts invaded, and errors intervene. Allison v. United States, 203. TOO INDEX. 3. There is no error in an instruction to the jury, where the evidence is conflicting, that in coming to a conclusion they should consider the testimony in the light of their own experience and knowledge. Jacksonville, Mayport fyc. Railway v. Hooper, 514. See Criminal Law, 9, 15,16, 17, 18 ; Railroad, 2. COURT OF CLAIMS. See Jurisdiction, E. CRIMINAL LAW. 1. To support an indictment on section 5480 of the Revised Statutes, as amended by the act of March 2, 1880, c. 393, for devising a scheme to sell counterfeit obligations of the United States, by means of communication through the post office, it is unnecessary to prove a scheme to defraud. Streep v. United States, 128. 2. In order to come within the exception of “fleeing from justice,” in section 1045 of the Revised Statutes, concerning the time after the commission of an offence within which an indictment must be found, it is sufficient that there is a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been begun. lb. 3. In order to constitute “ fleeing from justice,” within the meaning of section 1045 of the Revised Statutes, it is not necessary that there should be an intent to avoid the justice of the United States; but it is sufficient that there is an intent to avoid the justice of the State having jurisdiction over the same territory and the same act. lb. 4. For the committing of the offence under Rev. Stat. § 4786, (as amended by the act of July 4, 1884, c. 181, § 4, 23 Stat. 98, 101,) of wrongfully withholding from a pensioner the whole, or any part of the pension due him, an actual withholding of the money before it reaches the hands of the pensioner is essential; and it is not enough that it is fraudulently obtained from him, after it had reached his hands; and that act does not forbid or punish the act of obtaining the money from the pensioner by a false or fraudulent pretence. Ballew v. United States, 187. 5. A general verdict of guilty, where the indictment charges the commission of two crimes, imports of necessity a conviction as to each; and if it appears that there was error as to one and no error as to the other, the judgment below may be reversed here as to the first, and the cause remanded to that court with instructions to enter judgment upon the second count. Ib. 6. When a person indicted for the commission of murder, offers himself at the trial as a witness on his own behalf under the provisions of the act of March 16, 1878, c. 37, 20 Stat. 30, the policy of that enactment should not be defeated by hostile intimations of the trial judge. INDEX. 701 Hicks v. United Slates, 150 U. S. 442, affirmed. Allison v. United States, 203. 7. The defendant in this case having offered himself as a witness in his own behalf, and having testified to circumstances which tended to show that the killing was done in self-defence, the court charged the jury: “ You must have something more tangible, more real, more certain, than that which is a simple declaration of the party who slays, made in your presence by him as a witness, when he is confronted with a charge of murder. All men would say that.” Held, that this was reversible error. Ib. 8. Other statements made by the court to the jury are held to seriously trench on that untrammelled determination of the facts by a jury to which parties accused of the commission of crime are entitled. Ib. 9. What is or what is not an overt demonstration of violence sufficient to justify a resistance which ends in the death of the party making the demonstration varies with the circumstances; and it is for the jury, and not for the judge, passing upon the weight and effect of the evidence, to determine whether the circumstances justified instant action, because of reasonable apprehension of danger. Ib. 10. A count in an indictment which charges that the accused, “ being then and there an assistant, clerk, or employe in or connected with the business or operations of the United States post office in the city of Mobile, in the State of Alabama, did embezzle the sum of sixteen hundred and fifty-two and dollars, money of the United States, of the value of sixteen hundred and fifty-two and dollars, the said money being the personal property of the United States,” is defective in that it does not further allege that such sum came into his possession in that capacity. Moore v. United States, 268. 11. The count having been demurred to, and the demurrer having been overruled, the objection to it is not covered by Rev. Stat. § 1025, and is not cured by verdict. Ib. 12. Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted, or into whose hands it has lawfully come; and it differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while, in larceny, the felonious intent must have existed at the time of the taking. Ib. 13. Acts of concealment by an accused are competent to go to the jury as tending to establish guilt, but they are not to be considered as alone conclusive, or as creating a legal presumption of guilt, but only as circumstances to be considered and weighed in connection with other proof with the same caution and circumspection which their inconclusiveness, when standing alone, requires. Hickory v. United States, 408. 14. The presumption of guilt arising from the flight of the accused is a presumption of fact — not of law—and is merely a circumstance tend 702 INDEX. ing to increase the probability of the defendant’s being the guilty person, which is to be weighed by the jury like any other evidentiary circumstance. Ib. 15. A statement in a charge to the jury that no one who was conscious of • innocence would resort to concealment is substantially an instruction that all men who do so are necessarily guilty, and magnifies and distorts the power of the facts on the subject of the concealment, Ib. 16. The court below charged the jury as to the probative weight which should be attached to the flight of the accused, as follows: “ And not only this, but the law recognizes another proposition as true, and it is that ‘the wicked flee when no man pursueth, but the innocent are as bold as a lion.’ That is a self-evident proposition that has been recognized so often by mankind that we can take it as an axiom and apply it to this case.” Held, that this was tantamount to saying to the jury that flight created a legal presumption of guilt, so strong and so conclusive, that it was the duty of the jury to act on it as axiomatic truth, and as such that it was eiTor. Ib. 17. On these points the charge of the court was neither calm nor impartial, but put every deduction which could be drawn against the accused from the proof of concealment and flight, and omitted or obscured the converse aspect; and in so doing it deprived the jury of the light requisite to the safe use of these facts for the ascertainment of truth. Ib. 18. The plaintiff in error being indicted for the murder of one Wilson, became a witness on his own behalf on his trial. The court charged the jury: “Bearing in mind that he stands before you as an interested witness, while these circumstances are of a character that they cannot be bribed, that cannot be dragged into perjury, they cannot be seduced by bribery into perjury, but they stand as bloody naked facts before you, speaking for Joseph Wilson and justice, in opposition to and confronting this defendant, who stands before you as an interested party; the party who has in this case the largest interest a man can have in any case upon earth.” Held, that such a charge crosses the line which separates the impartial exercise of the judicial function from the region of partisanship where reason is disturbed, passions excited, and prejudices are necessarily called into play. Ib. 19. If it appears, on the trial of a person accused of committing the crime of murder, that the deceased was killed by the accused under circumstances which — nothing else appearing — made a case of murder, the jury cannot properly return a verdict of guilty of the offence, charged if, upon the whole evidence, from whichever side it comes, they have a reasonable doubt whether at the time of killing the accused was mentally competent to distinguish between right and wrong or to understand the nature of the act he was committing. Davis v. United States, 469. 20. No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that INDEX. 703 the evidence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged. Ib. 21. The plaintiff in error was indicted, tried, and convicted of murder by shooting. Among the evidence for the prosecution, admitted under objections and excepted to, were: (1) A declaration in writing by the murdered person, made after the shooting, and, as claimed, under a sense of impending death. This was offered in chief. (2) The statement of a witness, offered in rebuttal, that, on a later day and before her death the murdered person said that her former statement was true. Held, (1) That it was satisfactorily established that the written statement of the victim was made under the impression of almost immediate dissolution, and that it was therefore properly admitted; (2) That, as it did not appear whether at the time when the later statement was made she spoke under the admonition of her approaching end, or anticipated recovery, it was improperly admitted; (3) That the evidence so offered in rebuttal was not legitimate rebutting testimony. Carver v. United States, 553. See Court and Jury, 2; Evidence, 7, 8; Indictment. DEMURRER. See Criminal Law, 11. DIVORCE. See Constitutional Law, 7. EMBEZZLEMENT. See Criminal Law, 12. EMINENT DOMAIN. 1. An appropriation by Congress for continuing the work of surveying, locating, and preserving the lines of battle at Gettysburg, Pennsylvania, and for purchasing, opening, constructing, and improving avenues along the portions occupied by the various commands of the armies of the Potomac and Northern Virginia on that field, and for fencing the same; and for the purchase, at private sale or by condemnation, of such parcels of land as the Secretary of War may deem necessary for the sites of tablets, and for the construction of the said avenues; for determining the leading tactical positions and properly marking the same with tablets of batteries, regiments, brigades, divisions, corps, and other organizations, with reference to the study and correct understanding of the battle, each tablet bearing 704 INDEX. a brief historical legend, compiled without praise and without censure, is an appropriation for a public use, for which the United States may, in the exercise of its right of eminent domain, condemn and take the necessary lands of individuals and corporations, situated within that State, including lands occupied by a railroad company. United States v. Gettysburg Electric Railway Company, 668. 2. Any act of Congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, and which is germane to and intimately connected with and appropriate to the exercise of some one or all of the powers granted by Congress, must be valid, and the proposed use in this case comes within such description. Ib. 3. The mere fact that Congress limits the amount to be appropriated for such purpose does not render invalid the law providing for the taking of the land. Ib. 4. The quantity of land which should be taken for such a purpose is a legislative, and not a judicial, question. Ib. 5. When land of a railroad company is taken for such purpose, if the part taken by the government is essential to enable the railroad corporation to perform its functions, or if the value of the remaining property is impaired, such facts may enter into the question of the amount of the compensation to be awarded. Ib. EQUITY. 1. A court of equity in the District of Columbia may take jurisdiction of a bill brought against the administrator and heirs of an intestate, alleging a verbal agreement between the intestate and the plaintiff by which the plaintiff was to contribute one half of the cost of a tract of land and of a dwelling-house to be erected thereon, and the intestate, after entering on the property, was to convey to him a half interest therein, and setting forth his performance of his part of the agreement, and her repeated recognition of her obligation to perform her part thereof, and her death without having done so after having mortgaged the property for a debt of her own, and praying for an accounting, and a decree directing payment to the plaintiff of one half of the value of the real estate and improvements, and a sale of the same; and the court may decree specific performance of so much of the contract proved as can be enforced, and compensation to the plaintiff in damages for the deficiency. Townsend v. Vanderwerker, 171. 2. While the mere payment of the consideration in money in such case is insufficient to remove the bar of the statute of frauds, such payment, accompanied by an entry of the other party into possession under the contract, is such a part performance as will support a bill like the present one. Ib. INDEX. 705 3. The question of laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but upon whether, under all the circumstances of the particular case, the plaintiff is chargeable with a want of due diligence in failing to institute proceedings earlier; and, under the peculiar circumstances of this case, the bill is not open to the defence of laches, lb. 4. The bill in this case is not open to the charge of multifariousness. Ib. 5. In May, 1885, P., having an opportunity to purchase ten acres of land near Omaha, at a cost of $3600, payable $1250 in cash, the rest on credit, wrote to D. that he could buy the tract for $4800, payable $2500 in cash, the rest on credit, and asked him to join in the purchase. D. assented, sent his $1250 to P., and joined in a mortgage for the balance of the purchase money. In October, 1885, P. wrote to D. that he had sold the ten acres to B. for $6000, $3000 of which were in cash, and enclosed a cheque for $1500, and a deed to B. to be executed by D. in which the consideration was expressed at $6000. This amount was subsequently changed to $10,000 without D.’s knowledge. On the day after receiving the deed, B. reconveyed the property to P. The land was laid out into lots and streets under direction of P., and some of the lots were sold to bona fide purchasers. After the institution of this suit, the remainder was conveyed by P. to one M., for a recited consideration of $19,425. In February, 1887, the deception practised by P. as to the price of the land, and as to the change in the consideration of the deed to B. came to the knowledge of D., who thereupon wrote P., calling upon him to refund the overpayment in the purchase money, and to pay him one half of the increase in the amount of the consideration for the deed to B. P. made no payment, and commenced a correspondence which lasted until D. became possessed of knowledge of the reconveyance by B. to P. This bill in equity was then filed by D., praying for an accounting, and that he be decreed entitled to all the benefits of the original purchase, and that the deed to B., the deed from B. to P., and the deed from P. to M. be declared fraudulent; that P. be required to convey to D. so much of the premises as had not been conveyed to other parties for a valuable consideration; that he account to plaintiff for the sums received from such sales, and that he be restrained from selling other lots. The court below dismissed the bill on' the ground that D. had elected to retain what he had received and to pursue his claim for moneys still due, and could not maintain a suit to set the whole transactions aside. Held, (1) That the plaintiff was entitled to a decree setting aside and annulling the deed purporting to have been executed by P. to M., the deed from B. to P., and the deed to B. from P. and D., leaving the title to the premises in question where it was prior to the execution of the last named deed; such decree to be without prejudice to any valid rights acquired by parties who purchased in good faith from P. while the fee was in him alone; (2) That the cause should be referred to a VOL. CLX—45 706 INDEX. commissioner for an accounting between D. and P. in respect of the sums paid by them, respectively, on the original purchase, as evidenced by the deed of 1885, to P. and D. ; D. in such accounting to have credit for one half of all amounts received by P. on the sales by him of any of the lots into which the ten acres were subdivided, and P. to have credit for any sums paid by him in discharge of taxes or other charges upon the property. Dickson v. Patterson, 584. See Mandate, 1 ; Notice. ESTOPPEL. 1. If, upon the face of a record anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence. McCarty v. Lehigh Valley Railroad Co., 110. 2. An employé, paid by salary or wages, who devises an improved method of doing his work, using the property or labor of his employer to put his invention into practical form, and assenting to the use of such improvements by his employer, cannot entitle himself, by taking out a patent for such invention, to recover a royalty or other compensation for such use. Gill v. United States, 426. 3. A person looking on and assenting to that which he has power'to prevent is precluded from afterwards maintaining an action for damages. Ib. 4. Solomons v. United States, 137 U. S. 342, affirmed and applied to this case. Ib. EVIDENCE. 1. While it is competent, if a proper foundation has been laid, to impeach a witness by proving statements made by him, that cannot be done by proving statements made by another person, not a witness in the case. Goldsby v. United States, 70. 2. It is within the discretion of the trial court to allow the introduction of evidence, obviously rebuttal, even if it should have been more properly introduced in the opening ; and, in the absence of gross abuse, its exercise of this discretion is not reviewable. Ib. 3. Rev. Stat. § 1033 does not require notice to be given of the names of witnesses, called in rebuttal. Ib. 4. If the defendant in a criminal case wishes specific charges as to the weight to be attached in .law to testimony introduced to establish an alibi, he may ask the court to give them ; and, if he fails to do so, the failure by the court to give such instruction cannot be assigned as error. Ib. 5. A certificate by the Commissioner of Pensions that an accompanying paper “ is truly copied from the original in the office of the Commis- INDEX. T07 sioner of Pensions,” taken together with a certificate signed by the Secretary of the Interior and under the seal of that Department, certifying to the official character of the Commissioner of Pensions, is a substantial compliance with the provisions of Rev. Stat. § 882, and authorizes the paper so certified to be admitted in evidence. Ballew v. United States, 187. 6. Sundry exceptions as to the rulings of the court upon the admissibility of testimony considered, and held to be immaterial, or unfounded. Haws v. Victoria Copper Mining Co., 303. 7. Certain testimony held not to prejudice the defendants, but rather tending to bear in their favor, if at all material. Pierce v. United States, 355. 8. Confessions are not rendered inadmissible by the fact that the parties are in custody, provided they are not extorted by inducements or threats. Ib. 9. When one party to an action has in his exclusive possession à knowledge of facts which would tend, if disclosed, to throw light upon the transactions which form the subject of controversy, his failure to offer them in evidence may afford presumptions against him. Kirby v. Tallmadge, 379. See Criminal Law, 13, 14, 21 ; Estoppel, 1 ; Local Law, 3. EXTRADITION. See Habeas Corpus, 3. FLEEING FROM JUSTICE. See Criminal Law, 2, 3. FRAUD. See Equity, 5. FRAUDS, STATUTE OF. See Equity, 2. HABEAS CORPUS. 1. Under section 753 of the Revised Statutes, the courts of the United States have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in jail, in . custody under the authority of a State, in violation of thé Constitution or of a law or treaty of the United States ; but, except in cases of peculiar urgency, will not discharge the prisoner in advance of a final determination of his case in the courts of the State ; and, even after 708 INDEX. such final determination in those courts, will generally leave the petitioner to his remedy by writ of error from this court. Whitten v. Tomlinson, 231. 2. In a petition for a writ of habeas corpus, verified by oath, as required by Rev. Stat. § 754, only distinct and unambiguous allegations of fact, not denied by the return, nor controlled by other evidence, can be assumed to be admitted. Ib. 3. A warrant of extradition of the Governor of a State, issued upon the requisition of the Governor of another State, accompanied by a copy of an indictment, is prima facie evidence, at least, that the accused had been indicted and was a fugitive from justice; and, when the court in which the indictment was found had jurisdiction of the offence, is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the lawfulness of the detention of the prisoner, in the State in which he was indicted, to be inquired into and determined, in the first instance, by the courts of the State, lb. 4. A prisoner in custody under authority of a State will not be discharged by a court of the United States by writ of habeas corpus, because an indictment against him lacked the words “ a true bill,” or was found by the grand jury by mistake or misconception; or because a mittimus issued by a justice of the peace, under a statute of the State, upon application of a surety on a recognizance, and affidavit that the principal intended to abscond, does not conform to that statute. Ib. 5. In a petition for a writ of habeas corpus, verified by the petitioner’s oath as required by Rev. Stat. § 754, facts duly alleged may be taken to be true, unless denied by the return or controlled by other evidence; but ho allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous. Kohl v. Lehlback, 293. 6. General allegations in such a petition that the petitioner is detained in violation of the Constitution and laws of the United States or of the particular State, and is held without due process of law, are averments of conclusions of law, and not of matters of fact. Ib. See Jurisdiction, E, 2. HUSBAND AND WIFE. See Constitutional Law, 7 ; Mortgage; Notice, 1. INDIAN DEPREDATIONS. See Jurisdiction, D. INDIAN RESERVATION. See Public Land, 7. INDEX. 709 INDICTMENT. 1. An indictment for perjury in a deposition made before a special examiner of the pension bureau which charges the oath to have been wilfully and corruptly taken before a named special examiner of the Pension Bureau of the United States, then and there a competent officer, and having lawful authority to administer said oath, is sufficient to inform the accused of the official character and authority of the officer before whom the oath was taken. Markham v. United States, 319. 2. In such an indictment it is not necessary to set forth all the details or facts involved in the issue as to the materiality of the statement, and as to the authority of the Commissioner of Pensions to institute the inquiry in which the deposition of the accused was taken, lb. 3. The provision in Rev. Stat. § 1025 that “ no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant,” is not to be interpreted as dispensing with the requirement in § 5396 that an indictment for perjury must set forth the substance of the offence charged. Ib. 4. An indictment for perjury that does not set forth the substance of the offence will not authorize judgment upon verdict of guilty. Dunbar v. United States, 156 U. S. 185, affirmed. Ib. 5. When two counts in an indictment for murder differ from each other only in stating the manner in which the murder was committed, the question whether the prosecution shall be compelled to elect under which it will proceed is a matter within the discretion of the trial court. Pierce v. United States, 355. See Criminal Law, 1, 10; Habeas Corpus, 3, 4. INSOLVENT DEBTOR. See Local Law, 1 to 7. IOWA. See Boundary Line. JUDGMENT. See Constitutional Law, 7. JURISDICTION. A. Jurisdiction of the Supreme Court of the United States. 1. In the trial of a person accused of crime the exercise by the trial court of its discretion to direct or refuse to direct witnesses for the defend 710 INDEX. ant to be summoned at the expense of the United States is not subject to review by this court. Goldsby v. United States, 70. 2. Where the record shows that the only matter tried and decided in the Circuit Court was a demurrer to a plea to the jurisdiction, and the petition upon which the writ of error was allowed asked only for the review of the judgment that the court had no jurisdiction of the action, the question of jurisdiction alone is sufficiently certified to this court, as required by the act of March 3, 1891, c. 517, § 5. Interior Construction Improvement Co. n. Gibney, 217. 3. In an action brought in a state court against a railroad company for ejecting the plaintiff from a car, the defence was that a silver coin, offered by him in payment of his fare, was so abraded as to be no longer legal tender. The Supreme Court of the State, after referring to the Congressional legislation on the subject, held that, “ so long as a genuine silver coin is worn only by natural abrasion, is not appreciably diminished in weight, and retains the appearance of a coin duly issued from the mint, it is a legal tender for its original value.” The railroad company, although denying the plaintiff’s claim, set up no right under any statute of the United States in reference to the effect of the reduction in weight of silver coin by natural abrasion. Judgment being given for plaintiff, the railroad company sued out a writ of error for its review. Held, that this court was without jurisdiction. Jersey City Bergen Railroad Co. v. Morgan, 288. 4. On an appeal from a judgment of a territorial court, this court is limited to determining whether the facts found are sufficient to sustain the judgment rendered, and to reviewing the rulings of the court on the admission or rejection of testimony, when exceptions thereto have been duly taken. Haws v. Victoria Copper Mining Co., 303. 5. In an action in the state courts of New York against the collector of the port of New York, the health officer of that port, and the owners of warehouses employed for public storage, to recover damages suffered by an importer of rags by reason of their having been ordered to the warehouses by the collector and disinfected there, and detained until the charges for disinfection and storage were paid, a ruling by the highest court of the State that the direction of the collector to send the rags to the storehouses was pursuant to the requirement that they should be disinfected, and was in aid of the health officer in the execution of his official power by the observance of the regulations made by him — that the collector gave no order for their disinfection — that the health officer gave no such order — that the defendants assumed to disinfect them without authority, and hence that their charges were illegal — but that, as the collector had properly sent the goods to the warehouses for such action as the health authorities might see fit to take, the plaintiffs became liable for storage and lighterage, presents no Federal question for review by this court. Bartlett v. Lockwood, 357. INDEX. 711 6. As this appeal was taken long after the act establishing the Circuit Courts of Appeals went into effect, and as there is an entire absence of a certificate of a question of jurisdiction, the appeal is dismissed for want of jurisdiction. In re Lehigh Mining Co., 156 U. S. 322, and Shields v. Coleman, 157 U. S. 628, distinguished from this case. Van Wagenen v. Sewall, 369. 7. Even if an examination of the record would have disclosed a question of jurisdiction, which is very doubtful, this court cannot be required to search the record for it; as it was the object of the fifth section of the act of 1891 to have the question of jurisdiction plainly and distinctly certified, or at least to have it appear so clearly in the decree of the court below that no other question was involved, that no further examination of the record would be necessary. Ib. 8. The decree, to review which this writ of error was sued out, was not a final decree, and this court cannot take jurisdiction. Union Mutual Life Ins. Co. v. Kir choff, 374. 9. The rule is well nigh universal that, if a case be remanded by an appellate court to the court below for further judicial proceedings, in conformity with the opinion of the appellate court, the decree is not final. Ib. 10. This court has nd power to review a decision of a state court that the averments of an answer in a pending case set forth no defence to the plaintiff’s claim. Iowa Central Railway Co. v. Iowa, 389. 11. If a defendant, among other defences, in various forms, and upon several grounds, objects to the jurisdiction of the court, and final judgment is rendered for the plaintiff, and, upon a petition referring to all the proceedings in detail, and asking for a review of all the rulings of the court upon the question of jurisdiction raised in the papers on file, a writ of error is allowed generally, without formally certifying or otherwise specifying a definite question of jurisdiction, no question of jurisdiction is sufficiently certified to this court under the act of March 3, 1891, c. 517, § 5. Chappell v. United States, 499. 12. Upon a writ of error under the act of March 3, 1891, c. 517, § 5, in a case in which the constitutionality of a law of the United States was drawn in question, this court has power to dispose of the whole case, including all questions, whether of jurisdiction or of merits. Ib. 13. If the decree of a Circuit Court of Appeals is final under the sixth section of the judiciary act of March 3, 1891, a decree upon an intervention in the same suit must be regarded as equally so ; and even if the decree on such proceedings may be in itself independent of the controversy between the original parties, yet if the proceedings are entertained in the Circuit Court because of its possession of the subject of the ancillary or supplemental application, the disposition of the latter must partake of the finality of the main decree, and cannot be brought here on the theory that the Circuit Court exercised jurisdiction independently of the ground of jurisdiction which was orig 712 INDEX. inally invoked as giving cognizance to that court as a court of the United States. Gregory n. Van Ee, 643. 14. By authority of the directors of a national bank in Chicago, which had acquired some of its own stock, the individual note of its cashier, secured by a pledge of that stock was, through a broker in Portage, sold to a bank there. The note not being paid at maturity the Portage bank sued the Chicago bank in assumpsit, declaring specially on the note, which it alleged was made by the bank in the cashier’s name, and also setting out the common counts. The bank set up that the purchase of its own stock was illegal and that money borrowed to pay a debt contracted for that purpose was equally forbidden by Rev. Stat. § 5201. The trial court was requested by the Chicago bank to rule several propositions of law, and declined to do so. Judgment was then entered for the Portage bank. The Supreme Court of the State of Illinois held that the Portage bank was entitled to recover under the common counts, and that it was not necessary to consider whether the trial court had ruled correctly on the propositions of law submitted to it. Held, that that court in rendering such judgment, denied no title, right, privilege, or immunity specially set up or claimed under the laws of the United States, and that the writ of error must be dismissed. Chemical Bank v. City Bank of Portage, 646. See Cases Affirmed, 3; New Trial. B. Jurisdiction of Circuit Courts of Appeals. 1. Circuit Courts of Appeals have no jurisdiction over the judgments of territorial courts in capital cases, and in cases of infamous crimes. Folsom v. United States, 121. 2. This construction of the statute is imperative from its language, and is not affected by the fact that convictions for minor offences are reviewable on a second appeal, while convictions for capital and infamous crimes are not so reviewable. Ib. 3. Under the act of March 3,1887, e. 373, as corrected by the act of August 13, 1888, c. 866, a defendant, who enters a general appearance, in an action between citizens of different States, thereby waives the right afterwards to object that he or another defendant is not an inhabitant of the district in which the action is brought. Interior Construction if Improvement Co. v. Gibney, 217. See Jurisdiction, A, 13. C. Jurisdiction of Circuit Courts of the United States. 1. It is established doctrine, to which the court adheres, that the constitutional privilege of a grantee or purchaser of property, being a citizen of one of the States, to invoke the jurisdiction of a Circuit Court of the United States for the protection of his rights as against a citizen INDEX. 713 of another State —the value of the matter in dispute being sufficient for the purpose — cannot be affected or impaired merely because of the motive that induced his grantor to convey, or his vendee to sell and deliver, the property, provided such conveyance or such sale and delivery was a real transaction by which the title passed without the grantor or vendor reserving or having any right or power to compel or require a reconveyance or return to him of the property in question. Lehigh Mining Manufacturing Co. v. Kelly, 327. 2. Citizens of Virginia were in possession of lands in that State, claiming title, to which also a corporation organized under the laws of Virginia had for some years laid claim. In order to transfer the corporation’s title and claim to a citizen of another State, thus giving a Circuit Court of the United States jurisdiction over an action to recover the lands, the stockholders of the Virginia corporation organized themselves into a corporation under the laws of Pennsylvania, and the Virginia corporation then conveyed the lands to the Pennsylvania corporation, and the latter corporation brought this action against the citizens of Virginia to recover possession of the lands. No consideration passed for the transfer. Both corporations still exist. Held, that these facts took this case out of the operation of the established doctrine above stated and made of the transaction a mere device to give jurisdiction to the Circuit Court, and that it was a fraud upon that court, as well as a wrong to the defendants. Ib. 3. Circuit Courts of the United States have jurisdiction of actions in which the United States are plaintiffs, without regard to the value of the matter in dispute. United States v. Sayward, 493. See Corporation, 1; Habeas Corpus, 1; Jurisdiction, A, 13. D. Jurisdiction of the Court of Claims. 1. The act of March 3, 1891, c. 538, 26 Stat. 851, “ to provide for the adjudication and payment of claims arising from Indian depredations,” confers, by § 1, clause 1, no jurisdiction upon the Court of Claims to adjudicate upon such a claim, made by a person who was not a citizen of the United States at the time when the injury was suffered, although he subsequently became so ; nor, by § 1, clause 2, unless the claim was one which, on March 3, 1885, had been examined and allowed by the Department of the Interior or was then pending there for examination. Johnson v. United States, 546. 2. Any claim made against an Executive Department, “ involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any Executive Department in the adjustment of a class of cases, without T14 INDEX. regard to the amount involved in the particular case, or where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States,” may be transmitted to the Court of Claims by the head of such Department under Rev. Stat. § 1063, for final adjudication; provided, such claim be not barred by limitation, and be one of which, by reason of its subject-matter and character, that court could take judicial cognizance at the voluntary suit of the claimant. United States v. New York, 598. 3. Any claim embraced by Rev. Stat. § 1063, without regard to its amount, and whether the claimant consents or not, may be transmitted under the act of March 3, 1883, c. 116, to the Court of Claims by the head of the Executive Department in which it is pending, for a report to such Department of facts and conclusions of law for “its guidance and action.” lb. 4. Any claim embraced by that section may, in the discretion of the Executive Department in which it is pending, and with the express consent of the plaintiff, be transmitted to the Court of Claims, under the act of March 3, 1887, c. 359, without regard to the amount involved, for a report, merely advisory in its character, of facts or conclusions of law. lb. 5. In every case, involving a claim of money, transmitted by the head of an Executive Department to the Court of Claims under the act of March 3, 1883, c. 116, a final judgment or decree may be rendered when it appears to the satisfaction of the court, upon the facts established, that the case is one of which the court, at the time such claim was filed in the Department, could have taken jurisdiction, at the voluntary suit of the claimant, for purposes of final adjudication, lb. 6. Whether the words “ or matter ” in the second section of that act embrace any matters, except those involving the payment of money, and of which the Court of Claims under the statutes regulating its jurisdiction could, at the voluntary suit of the claimant, take cognizance for purposes of final judgment or decree, is not considered, lb. 7. As the claim of the State of New York, the subject of controversy in this case, was presented to the Treasury Department before it was barred by limitation, its transmission by the Secretary of the Treasury to the Court of Claims for adjudication was only a continuation of the original proceeding commenced in that Department in 1862; and the delay by the Department in disposing of the matter before the expiration of six years after the cause of action accrued, could not impair the rights of the State. Ib. 8. The $91,320.84 paid by the State of New York for interest upon its bonds issued in 1861 to defray the expenses to be incurred in raising troops for the national defence was a principal sum which the United States agreed to pay, and not interest within the meaning of the rule prohibiting the allowance of interest accruing upon claims against the United States prior to the rendition of judgment thereon. Ib. INDEX. 715 9. The claim of the State of New York for money paid on account of interest to the commissioners of the Canal Fund, is not one against the United States for interest as such, but is a claim for costs, charges, and expenses properly incurred and paid by the State in aid of the general government, and is embraced by the act of Congress declaring that the States would be indemnified by the general government for money so expended. Ib. E. Jurisdiction of State Courts. 1. It is for the state court, having jurisdiction of the offence charged in a proceeding before it, and of the accused, to determine whether the indictment sufficiently charges the offence of murder in the first degree. Bergemann v. Backer, 157 U. S. 655, affirmed and applied. Kohl v. Lehlback, 293. 2. Independently of constitutional or statutory provisions allowing it, an appeal to a higher court of a State from a judgment of conviction in a lower court is not a matter of absolute right; and as it may be accorded upon such terms as the State thinks proper, the refusal to grant a writ of error or to stay an execution does not warrant a Federal court to interfere in the prisoner’s behalf by writ of habeas corpus, lb. 3. When one of the jury by which a person accused of murder is convicted is an alien, and the accused takes no exception to his acting as a juror and makes no challenge, and on trial is convicted and sentenced, it is for the state court to determine whether the verdict shall be set aside on the ground that he was tried by improper persons, as the disqualification of alienage is only cause of challenge, which may be waived, either voluntarily, or through negligence, or through want of knowledge. lb. JURY TRIAL. See Constitutional Law, 3. LACHES. See Equity, 3. LEASE. See Contract, 2; Corporation, 2, 3. LIGHT-HOUSE. 1. A petition for the condemnation of land for a light-house, filed by the Attorney General upon the application of the Secretary of the Treasury, under the act of August 1, 1888, c. 728, should be in the name of the United States. Chappell v. United States, 499. 716 INDEX. 2. The only trial by jury required in proceedings in a court of the United States for the condemnation of land under the act of August 1, 1888, c. 728, is a trial at the bar of the court upon the question of damages to the owner of the land. Ib. See Constitutional Law, 6. LOCAL LAW. 1. As the controversy below in this case was what is known in the jurisprudence of Alabama as a statutory claim suit, growing out of attachment proceedings, the law of Alabama, as interpreted by the Supreme Court of that State in its rulings, will be followed here. Bamberger v. Schoolfield, 149. 2. Under the law of Alabama a debtor has the right to prefer a creditor, either by paying his debt in money, or by paying it by a sale and transfer of property to the debtor ; and if such sale and transfer are real, and are made in good faith, for a fair price, if they are honestly executed to extinguish the debt and do extinguish it, and contain no reservation of an interest or benefit in favor of the vendor, they are valid, and pass the property to the vendee, even if it further appears that the vendor was insolvent at the time, that the vendee knew that fact, and that, in making the sale the vendor had a fraudulent intent to defraud his other creditors by the preference, and the remaining creditors would, in consequence of the sale, be unable to obtain the payment of their debts. Ib. 3. In such case if the fact of indebtedness, and the fact that the goods were sold in payment thereof at their reasonable fair value are established to the satisfaction of the jury, and if it be contended, in avoidance thereof, that the trade was simulated, and that there was a secret trust or benefit reserved to the debtor, the burden is on the contesting creditor to establish it. Ib. 4. The employment of such a vendor by the vendee in a clerical capacity, and the subsequent transfer of the property by the vendee to the wife of the vendor, though circumstances which may be considered by the jury in determining the validity of the sale and transfer, do not of themselves render them illegal in law. Ib. 5. When a request for instructions presents a supposititious case, for the establishment of which there is no proof of any kind in the case, it should be refused, lb. 6. The second section of the fourteenth article of the constitution of Alabama, and the act of the legislature of that State of February 28, 1887, have been held by the courts of Alabama as not intended to interfere with matters of commerce between the States, and to have no application to transactions such as here under consideration. Ib. 7. There was no error in the instructions as to the bearing on the rights INDEX. TIT of the parties of the letter written by the Memphis firm and the settlement made by the latter after it. lb. District of Columbia. Illinois. Kansas. Louisiana. See Notice, 2, 3. See Jurisdiction, A, 14. See National Bank. See Mortgage. MANDAMUS. See Mandate, 1. MANDATE. 1. When a case has once been decided by this court on appeal, and remanded to the Circuit Court, that court must execute the decree of this court according to the mandate. If it does not, its action maybe controlled, either by a new appeal, or by writ of mandamus; but it may consider and decide any matters left open by the mandate, and its decision of such matters can be reviewed by a new appeal only. The opinion delivered by this court, at the time of rendering its decree, may be consulted to ascertain what was intended by the mandate; and, either upon an application for a writ of mandamus, or upon a new appeal, it is for this court to construe its own mandate. In re Sanford Fork Tool Co., 247. 2. When the Circuit Court, at a hearing upon exceptions to an answer in equity, sustains the exceptions, and (the defendant electing to stand by his answer) enters a final decree for the plaintiff; and this court, upon appeal, orders that decree to be reversed, and the cause remanded for further proceedings not inconsistent with its opinion, the plaintiff is entitled to file a replication, and may be allowed by the Circuit Court to amend his bill. Ib. MARRIED WOMAN. See Constitutional Law, 7; Mortgage ; Notice, 1. MASTER AND SERVANT. See Railroad, 1. MATE. See Officers in the Navy. MINERAL LAND. 1. The decree and complaint, taken together, fully describe and furnish ample means for identification of the property to which the defend 718 INDEX. ant in error was adjudged to be entitled. Haws v. Victoria Copper Mining Co., 303. 2. The contention that the complaint did not aver a discovery of a vein or lode prior to the location under which the plaintiffs in error claim is wholly without merit. Ib. 3. Likewise is the contention without merit that the discovery under which the defendant in error claims was of only one vein. Ib. 4. Possession alone is adequate against a mere intruder or trespasser, without even color of title, and especially so against one who has taken possession by force and violence. Ib. * MISSOURI. See Boundary Line. MORTGAGE. In 1868, Y., a citizen of Louisiana, being then married, mortgaged his interest in certain real estate in that State to E. H., his wife joining in the mortgage. In 1870 the father of Mrs. Y. died, leaving a policy of insurance in her favor. Y. collected this sum and converted it to his own use and the use of the community. In 1876, by a transaction between Y. and the residuary legatee of E. H., who was also indebted to Y., her said indebtedness was discharged, and Y.’s interest in that mortgage was assigned to Mrs. Y. in replacement of her paraphernal moneys and property, so secured and converted by her husband. In 1881 Mrs. Y. became entitled to a further sum, on the final settlement of her father’s estate, which was in like manner received by Y., and converted to his own use and that of the community. In 1881, on the petition of Mrs. Y., filed in 1881 in a suit against her husband for a dissolution of the community and a separation of property, a decree to that effect was made by the state court; and it was further adjudged and decreed that Y. was indebted to Mrs. Y. in the sums so received by him from her father’s estate, with recognition of mortgage on the property described, and the property be sold to satisfy said judgment and costs. In 1882, in order to enable Y. to borrow from N. & Co., Mrs. Y. executed a mandate and power of attorney, authorizing the cancelling and erasure of the mortgage to E. H. What was done under that power was afterwards claimed by Y. and by Mrs. Y. not to amount to such cancellation, and by N. & Co. to be effective. A mortgage to N. & Co. was then executed by Y., and the inscription of Mrs. Y.’s mortgage was then renewed. In 1883 N. & Co. commenced proceedings to foreclose their mortgage, (Mrs. Y. not being made a party to the suit,) and obtained a decree of foreclosure in 1886. The property was duly appraised according to the law of Louisiana, and at the sale no sufficient bid was made. It was then advertised for sale on a credit of twelve INDEX. 719 months. In 1887, Y. notified the marshal that Mrs. Y. had an incumbrance on the property prior to the mortgage to N. & Co., (stating the amount of it,) and that a sale for less than that amount would be invalid. Notwithstanding this notice, a sale was made for a less sum. This sale was attacked by Y. and Mrs. Y. by various proceedings set forth in the opinion of the court, which resulted in a decree setting aside the sale, and adjudging that the attempted renunciation by Mrs. Y. of her special mortgage was invalid, and that that mortgage should be recognized as the first mortgage on the property, superior in rank to the mortgage of N. & Co. Held, (1) That Mrs. Y. must stand upon her legal mortgage, resulting from the receipt of her paraphernal property, and recognized by the judgment of 1881, decreeing a separation of property; or upon a judicial mortgage arising from that judgment; or on the contract between herself and the residuary legatee of E. H.; (2) That if her mortgage be held to be legal or judicial, its existence was not a bar to the confirmation of a sale for an amount insufficient to satisfy it, and that it could not rank the special conventional mortgage of N. & Co.; (3) That by the transaction between the residuary legatee of E. H. and Mrs. Y., the respective debts were discharged by agreement and compensated each other, and when the principal obligation was thus discharged, the mortgage fell with it, and would not be revived, although the indebtedness were reacknowledged; (4) That the decree below should be reversed. Nolle v. Young, 624. MULTIFARIOUSNESS. See Equity, 4. NATIONAL BANK. The single fact that the statutes of Kansas regulating the assessment and taxation of shares in national banks permit some debts to be deducted from some moneyed capital, but not from that which is invested in the shares of national banks, is not sufficient to show that the amount of moneyed capital in the State of Kansas from which debts may be deducted, as compared with the moneyed capital invested in shares of national banks, is so large and substantial as to amount to an illegal discrimination against national bank shareholders, in violation of the provisions of Rev. Stat. § 5219. First National Bank of Garnett v. Ayers, 660. See Jurisdiction, A, 14. NAVY. See Officers in the Navy. NEGLIGENCE. See Railroad, 2, 3. 720 INDEX. NEW TRIAL. This case comes within the general rule that the allowance or refusal of a. new trial rests in the sound discretion of the court to which the application is addressed. Haws v. Victoria Copper Mining Co., 303. NOTICE. 1. Where land is used for the purpose of a home, and is jointly occupied by husband and wife, neither of whom has title by record, a person proposing to purchase is bound to make some inquiry as to their title. Kirby v. Tallmadge, 379. 2. The possession of real estate in the District of Columbia, under apparent claim of ownership, is notice to purchasers of the interest the person in possession has in the fee, whether legal orequitable in its nature, and of all facts which the proposed purchaser might have learned by due inquiry. Ib. 3. The principle applies with peculiar cogency to a case like the present, where the slightest inquiry would have revealed the facts, and where the purchaser deliberately turned his back upon every source of information; and a purchase made under such circumstances does not clothe the vendee with the rights of a bona fide purchaser without notice. Ib. OFFICERS IN THE NAVY. Mates are petty officers, and as such are entitled to rations or commutation therefor. United States v. Fuller, 593. PATENT FOR INVENTION. The inventions claimed in the third and fourth claims of letters patent No. 339,913 dated April 13, 1886, issued to Harry C. McCarty for an improvement in car trucks, if not void for want of novelty, as the application of an old process or machine to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, were inventions of such a limited character as to require a narrow construction; and, being so construed, the letters patent are not infringed by the bolsters used by the appellee. McCarty v. Lehigh Valley Railroad Co., 110. See Estoppel, 2, 3, 4. PENSION. See Criminal Law, 4. PERJURY. See Indictment. INDEX. 721 PRACTICE. 1. There is nothing in this case to take it out of the ruling in Isaacs v. United States, 159 ü. S. 487, that an application for a continuance is not ordinarily subject to review by this court. Goldsby v. United States, 70. 2. The court below can, before a newr trial, authorize the allegation as to the decision by the Secretary of War upon the necessity of taking the land to be amended, if necessary. United States v. Gettysburg Electric Railway Company, 668. 3. The court adheres to its opinion and decision in this case, 159 U. S. 349, and corrects an error of statement in that opinion, which in no way affects the conclusions there reached. Sioux City St. Paul Railroad Co. v. United States, 686. See Assignment of Error; Jurisdiction, B, 3; Criminal Law, 11; Mandate, 1, 2; Evidence, 4; New Trial. Indictment, 5 ; PRESUMPTION. See Evidence, 9. PUBLIC LAND. 1. The provision in the act of March 3, 1875, c. 152, 18 Stat. 482, granting the right of way through the public lands of the United States to any railroad duly organized under the laws of any State or Territory, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, plainly means that no corporation can acquire a right of way upon a line not described in its charter or articles of incorporation. Washington If Idaho Railroad Co. v. Cœur d'Alene Railway if Navigation Co., 77. 2. A railroad company whose road is laid out so as, under the provisions of the act of March 3, 1875, 18 Stat. 482, entitled “ An act granting to railroads the right of way through the public lands of the United States,” to cross a part of such public unsurveyed domain, cannot take part thereof in the actual possession and occupation of a settler, who is entitled to claim a preemption right thereto when the proper time shall come, and who has made improvements on the land so occupied by him, without making proper compensation therefor. Washington if Idaho Railroad Co. v. Osborn, 103. 3. The act of March 3, 1877, c. 107, 19 Stat. 377, providing for the sale of desert lands in certain States and Territories, does not embrace alternate sections, reserved to the United States, along the lines of railroads for the construction of which Congress has made grants of lands. United States v. Healey, 136. VOL. CLX—46 722 INDEX. 4. Cases initiated under that act, but not completed, by final proof, until after the passage of the act of March 3, 1891, c. 561, 26 Stat. 1095, were left by the latter act, as to the price to be paid for the lands entered, to be governed by the law in force at the time the entry was made. lb. 5. A voluntary relinquishment of his entry by a homestead entryman made in 1864 was a relinquishment of his claim to the United States, and operated to restore the land to the public domain. Keane v. Bryg-ger, 276. 6. Prior to 1864 H. made a homestead entry of the land in controversy in this action. In February, 1864, he relinquished his right, title, and interest in the same. In March, 1864, the University Commissioners of Washington Territory, under the act of July 17, 1854, c. 84, selected this as part of the Territory’s. lands for university purposes, and on the 10th day of that month conveyed the tract to R., who, on the 4th of April, 1876, conveyed it to B. Held, that the title so acquired should prevail over a title acquired by homestead entry in October, 1888. Ib. 7. The Indian reservation at Sault Ste. Marie, under the treaty of June 26, 1820, with the Chippewas, continued until extinguished by the treaty of August 2, 1855; and upon the extinguishment of the Indian title at that time the land included in the reservation was made, by § 10 of the act of September 4, 1841, not subject to preemption. Spalding v. Chandler, 394. See Mineral Land; Removal of Causes, 1. RAILROAD. 1. A force of five men, in the night service of a railroad company, was employed in uncoupling from the rear of trains cars which were to be sent elsewhere, and in attaching other cars in their places. The force was under the orders of O., who directed G. what cars to uncouple, and K. what cars to couple. As the train backed down, G. uncoupled a car as directed. K. in walking to the car which was to be attached to the train in its place, caught his foot in a switch and fell across the track. As the train was moving towards him he called out. The engine was stopped, but the rear car, having been uncoupled by G., continued moving on, and passed over him, inflicting severe injuries. K. sued the railroad company to recover damages for the injuries thus received. Held, that K. and O. were fellow-servants, and that the railroad company was not responsible for any negligence of O. in not placing himself at the brake of the uncoupled car. Central Railroad Co. v. Keegan, 259. 2. In an action against a railroad company brought by one of its employes to recover damages for injuries inflicted while on duty, where the evidence is conflicting it is the province of the jury to pass upon the INDEX. 723 questions of negligence; but where the facts are undisputed or clearly preponderant, they are questions of law, for the court. Southern Pacific Company v. Pool, 438. 3. In this case, after a review of the undisputed facts, it is held that there can be no doubt that the injury which formed the ground for this action was the result of the inexcusable negligence of the company’s servant. Ib. See Corporation, 3; Public Land, 1, 2; Jurisdiction, A, 3 ; Removal of Causes ; Union Pacific Railway Company. REAL ESTATE^ See Notice. REASONABLE DOUBT. See Criminal Law, 19, 20. REHEARING. See Practice, 3. REMOVAL OF CAUSES. 1. An action commenced May 27, 1889, in the District Court of the Territory of Idaho, before the admission of Idaho as a State, by a corporation organized under the laws of Washington Territory, against a corporation organized under the laws of Montana Territory, and against a railroad company organized under the laws of the United States, upon which latter company service had been made and filed, was, after the admission of Idaho as a State, removable to the Circuit Court of the United States for that circuit both upon the ground of diversity of citizenship of the territorial corporations, and upon the ground that the railroad company was incorporated under a law of the United States; and, so far as the latter ground of removal is concerned, it is not affected by the fact that the railroad company afterwards ceased to take an active part in the case, as the jurisdictional question must be determined by the record at the time of the transfer. Washington Idaho Railroad Co. n. Cœur d'Alene Railway fy Navigation Co., 77. 2. The decision of the Supreme Court of Nebraska that the Missouri Pacific company could not maintain its claim for damages because its possession had not been disturbed or its title questioned, involved no Federal question ; and where a decision of a state court thus rests on independent ground, not involving a Federal question, and broad enough to maintain the judgment, the writ of error will be dismissed by this court, without considering any Federal, question that may also 724 INDEX. have been presented. Missouri Pacific Railway Company v. Fitzgerald, 556. 3. In deciding adversely to the claim of the plaintiff in error that by reason of the process of garnishment in attachment against the Missouri Pacific company, in the action removed to the Circuit Court from the state court, the Circuit Court acquired exclusive jurisdiction over the moneys due