VG - 4 J'75~ UNITED STATES REPORTS VOLUME 169 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1897 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1898 Copyright, 1898, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief 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. JOSEPH McKENNA, Associate Justice.1 JOHN WILLIAM GRIGGS, Attorney General.2 JOHN KELVEY RICHARDS, Solicitor General.3 JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. 1 Mr. McKenna was appointed Associate Justice in the place of Mr. Justice Field, resigned. His commission is dated January 21, 1898. On the 26th of January, 1898, he took the oath of office in open court, and at once took his seat upon the bench. 2 Mr. Griggs’s commission is dated January 25, 1898. He was appointed in the place of Mr. McKenna, appointed Associate Justice. On the 21st of February, 1898, he was presented to the court, and his commission was ordered to be recorded. 3 Mr. Conrad having resigned, Mr. Richards was commissioned July 1, 1897, and qualified on the 9th of the same July. iii TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Ames, Smyth v.................................466 Ashley, Board of Supervisors of the County of Presque Isle v. ........ 736 Aultman, Holder v..............................81 Austin, Baker v.....................................294 Backus v. Fort Street Union Depot Company . . 557 Baker v. Austin...............................294 Baker v. Cummings.............................189 Baker v. Finley...............................294 Baker v. Grice................................284 Baker v. Hawkins .............................294 Baltimore and Ohio Railroad Company, Hetzel v. . 26 Barker, Smiley v............................ 736 Barrett v. United States (No. 1)..............218 Barrett u United States (No. 2)...............231 Behlmer, Louisville and Nashville Railroad Company v. 644 Beley v. Naphtaly.............................353 Belt, Magruder v........................... . 737 Benjamin v. New Orleans.......................161 Bernardin, United States ex'r el., v. Butterworth . . 600 Blackman, Dull v. ............................243 Board of Supervisors of the County of Presque Isle v. Ashley........................................736 Boardman, Applicant on behalf of Durrant, In re . 39 Bosworth, Receiver, v. Terminal Railroad Association of St. Louis.....................................736 Bowdoin College, Merritt v. ..................551 Brown v. Marion National Bank.................416 Buckstaff v. Russell & Company................737 v vi TABLE OF CONTENTS. Table of Cases Reported. PAGE Building and Loan Association of Dakota v. Price . 45 o Burnham, Post v............................. . 735 Butterworth, United States ex rel. Bernardin v. . . 600 Carroll, Trustee, v. Goldschmidt . . . . . 735 Central National Bank v. Stevens....................432 Cessna v. United States . . . . . . .165 Chandos, Warren v...................................734 Chappell v. Stewart ....... 733 Chesapeake and Ohio Bail way Company, Powers v. . 92 Chicago, Milwaukee and St. Paul Bailway Company v. Solan................................................133 Cox, Meyer v.........................................735 Cummings, Baker v....................................189 Darragh v. II. Wetter Manufacturing Company . . 735 De La Vergne Befrigerating Machine Company v. German Savings Institution..........................73/1 Dillingham, Moran v.................................737 Dodge v. Menasha Wood Split Pulley Company . . 738 Dodge v. Strasburger................................737 Dull v. Blackman....................................243 Eastern Trust and Banking Company, Willis v. . . 295 Eaton, United States v..............................331 Fenwick Hall Company v. Town of Old Saybrook . 734 Finley, Baker v.....................................294 Fletcher, Fulton v. . . . . . . .735 Fort Street Union Depot Company, Backus v. . . 557 Fulton v. Fletcher..................................735 Garlinger, United States v..........................316 Gay v. Thomas.......................................264 Gay, Thomas v.......................................264 German Savings Institution, De La Vergne Befrigerating Machine Company v....................................736 Goldschmidt, Carroll, Trustee, v....................735 TABLE OF CONTENTS. vii Table of Cases Reported. PAGE Gray, National Safe Deposit, Savings and Trust Company v...........................................737 Grice, Baker v. .....................................284 Gruetter v. Stuart . . . . . . . 1 Guarantee Company of North America v. Mechanics’ Savings Bank and Trust Company .... 736 H. Wetter Manufacturing Company, Darragh v. . . 735 Haber, Missouri, Kansas and Texas Railway Company v. 613 Hammond v. Horton....................................734 Harding v. Minneapolis Northern Railway Company . 737 Hardy, Holden v. (No. 1).............................366 Hardy, Holden v. (No. 2).............................366 Hawkins, Baker v................................... 294 Hayden, Stuart v.......................................1 Hetzel v. Baltimore and Ohio Railroad Company . 26 Higginson, Smyth v...................................466 Holden v. Hardy (No. 1)..............................366 Holden v. Hardy (No. 2)..............................366 Holder v. Aultman.....................................81 Horton, Hammond v....................................734 In re Boardman, Applicant on behalf of Durrant . . 39 Jordan, McDonnell v..................................734 Kemp, United States and Comanche Indians v. . . 733 Kengla, Levis v......................................234 Kirchoff, Union Mutual Life Insurance Company v. . 103 Klumpp, United States v..............................209 Levis v. Kengla......................................234 Logan County v. United States........................255 Louisville, United States v..........................249 Louisville and Nashville Railroad Company v. Behlmer 644 Louisville and Nashville Railroad Company, Richardson -y...........................................128 Louisville, New Albany and Chicago Railroad Company, Pope, Receiver, v................................737 viii TABLE OE CONTENTS. Table of Cases Reported. PAGE McDonnell v. Jordan..................................734 Magruder v. Belt . . . . i 737 Marion National Bank, Brown v........................416 Mechanics’ Savings Bank and Trust Company, Guarantee Company of North America v...................736 Meech, Smithsonian Institution v.....................398 Menasha Wood Split Pulley Company, Dodge v. . . 738 Merritt v. Bowdoin College...........................551 Meyer v. Cox.........................................735 Minneapolis Northern Railway Company, Harding v. . 737 Minnesota Railway Transfer Company, Wetzel v. . . 237 Missouri, Kansas and Texas Railway Company v. Haber 613 Moran v. Dillingham..................................737 Multnomah County, Savings and Loan Society v. . . 421 Mutual Life Insurance Company of New York, Ritter v. 139 Naphtaly, Beley v....................................353 Naphtaly, Smith v....................................365 National Safe Deposit, Savings and Trust Company v. Gray.................................................737 New Orleans, Benjamin v...............................161 North Carolina, Wilson v.............................586 North Carolina, Wilson v. >...........................600 Old Saybrook, Town of, Fenwick Hall Company v. . 734 Paine, Williams v.....................................55 Passavant, United States v. . . . . . .16 Payne v. Robertson....................................323 Pope, Receiver, v. Louisville, New Albany and Chicago Railroad Company......................................737 Post v. Burnham.......................................735 Powers v. Chesapeake and Ohio Railway Company . 92 Price, Building and Loan Association of Dakota v. . 45 R. A. Patterson Tobacco Company, Richmond and Alleghany Railroad Company v.........................311 Reliance Marine Insurance Company, Limited, Washburn & Moen Manufacturing Company v. . . 736 TABLE OF CONTENTS. ix Table of Cases Reported. PAGE Richardson v. Louisville and Nashville Railroad Company .............................................128 Richmond and Alleghany Railroad Company v. R. A. Patterson Tobacco Company............................311 Ritter v. Mutual Life Insurance Company of New York 130 Robertson, Payne v. •.........................323 Russell & Company, Buckstafif v......................737 Rymer, Wetmore v.....................................115 Sage, Assignee, Swenson v. . . . . . 733 Savings and Loan Society v. Multnomah County . . 421 Smiley v. Barker.....................................736 Smith v. Naphtaly....................................365 Smith, Smyth v.......................................466 Smithsonian Institution v. Meech.....................308 Smyth v. Ames........................................466 Smyth v. Higginson...................................466 Smyth v. Smith.......................................466 Solan, Chicago, Milwaukee and St. Paul Railway Company v............................................133 Stevens, Central National Bank v.....................432 Stewart, Chappell v................................ 733. Strasburger, Dodge v.................................737 Stuart, Gruetter v. ........ 1 Stuart v. Hayden.......................................1 Swenson v. Sage, Assignee............................733 Terminal Railroad Association of St. Louis, Bosworth, Receiver, v.......................................736 Thomas v. Gay........................................264 Thomas, Gay v........................................264 Town of Old Saybrook, Fenwick Hall Company v. . 734 Union Mutual Life Insurance Company v. Kirchoff . 103 United States ex rd. Bernardin u Butterworth . . 600 United States, Barrett u (No. 1).....................218 United States, Barrett v. (No. 2)....................231 U nited States, Cessna v.............................165 X TABLE OF CONTENTS. Table of Cases Reported. PAGE United States u Eaton...............................331 United States v. Garlinger...........................316 United States v. Klumpp..............................209 United States, Logan County v........................255 United States v. Louisville..........................249 United States v. Passavant . .........................16 United States v. Wong Kim Ark........................649 United States and Comanche Indians v. Kemp . . 733 Warren v. Chandos....................................734 Washburn & Moen Manufacturing Company v. Reliance Marine Insurance Company, Limited . . . 736 Wetmore v. Rymer.....................................115 Wetzel v. Minnesota Railway Transfer Company . .237 Williams v. Paine . . . . . . . . 55 Willis v. Eastern Trust and Banking Company . . 295 Wilson v. North Carolina.............................586 Wilson v. North Carolina ...... 600 Wong Kim Ark, United States v. . . . . . 649 Appendix I. Assignments to Circuits...................739 II . Costs in Circuit Courts of Appeals . . .740 Index..............................................743 TABLE OF CASES CITED IN OPINIONS. PAGE Accident Ins. Co. v. Crandal, 120 U. S. 527 149 Adair v. Adair, 22 Ore. 115 426 Adams Express Co. v. Ohio State Auditor, 166 U. S. 185 274 Ah Yup, In re, 5 Sawyer, 155 702 Ainslie v. Martin, 9 Mass. 454 713 Alabama Ins. Co. v. Lott, 54 Ala. 499 425 Allen v. Georgia, 166 U.S. 138 593 Allgeyer v. Louisiana, 165 U. S. 578 391 Alsberryv. Hawkins, 9 Dana, 177 713 Ames v. Union Pacific Railway, 64 Fed. Rep. 165 528 Amesbury Nail Factory Co. v. Weed, 17 Mass. 53 280 Amicable Society v. Bolland, 4 Bligh (N. S.), 194 158 Amy v. Supervisors, 11 Wall. 136 465 Anderson v. Baxter, 4 Ore. 105 426 Anderson v. Strauss, 98 Ill. 485 310 Andrew v. Trinity Hall, 9 Yes. 525 414 Andrews v. Swartz, 156 U. S. 272 44 Anne, The, 3 Wheat. 435 679 Appeal Tax Court v. Rice, 50 Md. 302 425 Arapahoe v. Cutter, 3 Colo. 349 431 Arrowsmith v. Harmoning, 118 U. S. 194 383 Arthurs v. Hart, 17 How. 6 119 Augusta Bank v. Augusta, 36 Me. 255 425 Ayers v. Watson, 113 U. S. 594 98 Badger v. Cusimano, 130 U. S. 39 21 Baiz, In re, 135 U. S. 403 679 Baker v. Nachtrieb, 19 How. 126 322 Ballew v. United States, 160 U. S. 187 352 Baltimore &c. Railroad v. Baugh, 149 U. S. 368 137 Baltimore &c. Railroad v. Burns, 124 U. S. 165 98 PAGE Bank v. Partee, 99 U. S. 325 75 Barber v. Harris, 6 Mackey, 586 300 Barber v. Schell, 107 U. S. 617 216 Barbier v. Connolly, 113 U. S. 27 383, 398 Bardon v. Land &c. Improvement Co., 157 U. S. 327 516 Barnes v. Michigan Air Line, 65 Mich. 251 585 Barry v. Edmunds, 116 U. S. 550 118, 120, 122, 123 Bascomb v. Davis, 56 Cal. 152 361 Bauman v. Ross, 167 U. S. 548 569 Bayonne, The, 159 U. S. 687 555 Beall v. Schley, 2 Gill, 181; 8. C. 41 Am. Dec. 415 414 Bedford v. Burton, 106 U. S. 338 75 Bein v. Heath, 6 How. 228 75 Bender v. Pennsylvania Co., 148 U. S. 502 734 Benjamin v. Benjamin, 5 N. Y. 383 303 Benny v. O’Brien, 58 N. J. Law, 36 693 Bergemann v. Backer, 157 U. S. 655 44 Bernardin v. Seymour, 10 App. D. C. 294 601 Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284 149 Birch v. Wright, 1 T. R. 378 302, 303 Birdseye v. Schaeffer, 140 U. S. 117 98 Block v. Morrison, 112 Mo. 343 734 Boom Co. v. Patterson, 98 U. S. 403 568 Borradaile v. Hunter, 5 Man. & Gr. 639 155 Bowman v. Chicago &c. Railway, 125 U. S. 465 643 Boyd ». Thayer, 143 U. S. 135 673 Boyd ». United States, 116 U. S. 616 654 Bradwell ». State, 16 Wall. 130 383 Britton’s Appeal, 45 Penn. St. 172 429 xi xii TABLE OF CASES CITED. PAGE Brobst v. Brock, 10 Wall. 519 430 Broderick’s Will, 21 Wall. 503 516 Buck v. Colbath, 3 Wall. 334 461 Budd v. New York, 143 U. S. 517 524 Burfenning v. Chicago &c. Rail- way, 163 U. S. 321 356 Burgess v. Seligman, 107 U. S. 20 137 Bush v. Kentucky, 107 U. S 110 383 Cadwalader v. Zeh, 151 U. S. 171 216 Cahn v. Seeberger, 30 Fed. Rep. 425 212 Calvin’s Case, 7 Rep. 1; & C. 2 How. St. Tr. 559 656, 659, 669, 670, 682, 693, 694 Carey v. Houston &c. Railway, 161 U. S. 115 735 Carlisle v. United States, 16 Wall. 147 686, 694 Carpenter v. Strange, 141 U. S. 87 247 Car roll®. Ballance, 26 Ill. 9; S. C. 79 Am. Dec. 354 309 Carson v. Dunham, 121 U. S. 421 101 Castillo v. McConnico, 168 U. S. 674 734, 735 Cates v. Allen, 149 U. S. 451 517 Chae Chan Ping®. United States, 130 U. S. 581 686, 699 Chanute City ®. Trader, 132 U. S. 210 132 Chappell ®. United States, 160 U. S. 499 555 Charlotte, Columbia &c. Railroad ®. Gibbes, 142 U. S. 386 522 Charming Betsy, The, 2 Cranch, 64 658 Cherokee Nation ®. Georgia, 5 Pet. 1 683 Cherokee Nation ®. Southern Kansas Railway, 135 U. S. 641 544, 568 Cherokee Tobacco, The, 11 Wall. 616 271 Chicago &c. Railway ®. Ohle, 117 U. S. 123 121 Chicago &c. Railway ®. Solan, 169 U. S. 133 315, 627 Chicago &c. Railway®. Wellman, 143 U. S. 339 524 Chicago, Burlington &c. Railroad v. Chicago, 166 U. S. 226 525, 565, 576, 578, 622, 639 Chicago, Burlington &c. Railroad ®. Skupa, 16 Neb. 341 308 Chicago Life Ins. Co. ®. Needles, 113 U. S. 574 622 Chicago, Milwaukee &c. Railway ®. Minnesota, 134 U. S. 418 523 Chicot Co. ®. Sherwood, 148 U. S. 529 517 Chin King, Exporte, 13 Sawyer, 333 697 PAGE Chirac ®. Chirac, 2 Wheat. 259 701 Chv Lung ®. Freeman, 92 U. S. 275 383 Clement ®. Bennett, 70 Me. 207 308 Coe ®. Errol, 116 U. S. 517 427 Cohens ®. Virginia, 6 Wheat. 264 679 Colman ®. Packard, 16 Mass. 39 310 Colvin ®. Jacksonville, 158 U. S. 456 555 Comins v. Township of Harris- ville, 45 Mich. 442 278 Commissioners ®. Chicago &c. Railroad, 90 Mich. 385 585 Commissioners ®. Chicago &c. Railroad, 91 Mich. 291 583, 585 Commissioners ®. Moesta, 91 Mich. 149 583 Commissioners ®. Sellew, 99 U. S. 624 604 Common Council ®. Assessors, 91 Mich. 78 428 Commonwealth ®. Alger, 7 Cush. 53 392 Commonwealth ®. Bonnell, 8 Phila. 534 394 Commonwealth ®. Conyngham, 66 Penn. St. 99 395 Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 395 Compania de Navigacion ®. Brauer, 168 U. S. 104 14, 135 Conard ®. Atlantic Ins. Co., 1 Pet. 386 428 Connecticut Life Ins. Co. ®. Lathrop, 111 U. S. 612 149 Connell ®. Smiley, 156 U. S. 335 97,98 Conqueror, The, 166 U. S. 110 648 Conrad ®. Waples, 96 U. S. 279 75 Converse, In re, 137 U. S. 624 383 Cooke®. Turner, 14 Sim. 493 413 Cotton v. Wood, 25 Iowa, 43 410 Covington &c. Turnpike Road Co. v. Sandford, 164 U. S. 578 525, 545 Cowles v. Mercer Co., 7 Wall. 118 517 Cowley ®. Northern Pacific Rail- road, 159 U. S. 569 517 Crawford ®. Linn Co., 11 Ore. 482 426 Crehore v. Ohio &c. Railway, 131 U. S. 240 101 Crescent City Live Stock Co. ®. Butchers’ Union, 120 U. S. 141 460 Crowley v. Christensen, 137 U. S. 86 393 Dakin ®. Allen, 8 Cush. 33 305 Daniels ®. Hilgard, 77 Ill. 640 394 Darcy ®. Darcy, 51 N. J. Law, 140 428 TABLE OF CASES CITED. xjü PAGE Davenport v. Mississippi &c. Rail- road, 12 Iowa, 539 431 Davidson v. New Orleans, 96 U. S. 97 384, 390, 392 Davis v. Gray, 16 Wall. 203 517 Davis v. Hemenway, 27 Vt. 589 308 Davis v. United States, 165 U. S. 373 149 De Arnaud v. United States, 151 U. S. 483 322 De Geer v. Stone, 22 Ch. D. 243 669, 670, 671 Deputron ». Young, 134 U. S. 241 118, 120, 123 Detroit v. Brennan, 93 Mich. 338 584 Devoe Manufacturing Co., In re, 108 U. S. 401 221 Dibble v. Bellingham Bay Land Co., 163 U. S. 63 735 Dick ». Foraker, 155 U. S. 404 516 Doe ». Jones, 4 T. R. 300 656, 659, 670 Douglas ». Kentucky, 168 U. S. 488 393 Dow ». Beidelman, 125 U. S. 680 523 Dravo ». Fabel, 132 U. S. 487 14 Dred Scott ». Sandford, 19 How. 393 662, 676, 716 Driesbach ». National Bank, 104 U. S. 52 419 Drummond’s Case, 2 Knapp, 295 672 Duke of Marlborough, In re, L. R. 2 Ch. Div. 1894, 133 411 Duncan ». Missouri, 152 U. S. 377 385 Dundee Mortgage Co. ». Parrish, 11 Sawyer, 92 426 Dundee Mortgage Co. ». School District, 10 Sawyer, 52 426, 427 Dunning ». Finson, 46 Me. 546 308 Durant ». Lexington Coal Mining Co., 97 Mo. 62 395 Edrington». Jefferson, 111 U. S. 770 98, 103 Egan ». Hart, 165 U. S. 188 565 Ekin ». United States, 142 U. S. 651 43 Elk ». Wilkins, 112 U. S. 94 676, 680, 682, 722, 724 Ellenwood ». Marietta Chair Co., 158 U. S. 105 246 Equitable Building & Loan Association ». Vance, 27 S. E. Rep. 274 F 54 Erhardt ». Schroeder, 155 U. S. „ • 21 Erie Railroad ». Pennsylvania, 158 U. S. 431 273 Eustis ». Bolles, 150 U. S. 361 734, 735 Evertson ». Sutton, 5 Wend. 281 ; 8. C. 21 Am. Dec. 217 303 PAGE Exchange, The, 7 Cranch, 116 683, 686, 687 Farmers’ &c. Bank ». Hoagland, 7 Fed. Rep. 159 420 Farmington ». Pillsbury, 114 U. S. 138 119 Fauntleroy’s Case, 4 Bligh (N. S.), 194 158 Felix v. Patrick, 145 U. S. 317 242 Fifty Associates ». Howland, 11 Met. 99 306 Firemen’s Ins. Co. ». Commonwealth, 137 Mass. 80 428 Fiske ». Bigelow, 2 McArthur, 427 302 Fitch ». Weber, 6 Hare, 51 712 Flagg ». Flagg, 11 Pick. 475 310 Flannigan ». Young, 2 Harr. & McH. 38 f,7 Fleming ». Page, 9 How. 603 710 Fong Yue Ting ». United States, 149 U. S. 698 694, 699, 702, 731 Foster ». Kansas, 112 U. S. 201 594, 599 Freedman’s Saving Co. ». Shep- herd, 127 U. S. 494 310 Freeman ». Howe, 24 How. 450 461 Gardner ». Ward, 2 Mass. 244 663 Gee Fook Sing». United States, 7 U. S. App. 27 697 Gee Hop, In re, 71 Fed. Rep. 274 702 Georges Creek Co. ». Detmold, 1 Md. 225 302 Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174 523 Gerrish v. Mason, 4 Gray, 432 306 Gibbons ». Ogden, 9 Wheat. 1 626, 627 Gibson ». Mississippi, 162 U. S. 565 383 Giozza ». Tiernan, 148 U. S. 657 393 Gittings ». Crawford, Taney, 1 679 Gladson ». Minnesota, 166 U. S. 427 138 Goldgart ». People, 106 Ill. 25 425 Grand Rapids ». Bennett, 106 Mich. 528 585 Grand Rapids &c. Railroad ». Chesebro, 74 Mich. 466 584 Grand Rapids &c. Railroad ». Railroad, 58 Mich. 641 585 Grand Rapids Railroad ». Weiden, 70 Mich. 295 584 Grant ». Jones, 39 O. St. 506 431 Gray ». Jordan, 87 Me. 140 411 Gray ». Stiles, 49 Pac. Rep. 1083 283, 284 Greer ». Wilbar, 72 No. Car. 592 308 Gulf, Colorado &c. Railway ». Ellis, 165 U. S. 150 522 Gurnee ». Patrick Co., 137 U. S. 141 98 xiv TABLE OF CASES CITED. PAGE Haigh v. Kaye, L. B. 7 Ch. App. 469 408 Hall v. De Cuir, 95 U. S. 485 642 Hallinger v. Davis, 146 U. S. 314 385 Hamblin v. Western Land Co., 147 U. S. 531 595 Hammond v. Connecticut Mutual Life Ins. Co., 150 U. S. 633 734 Hammond v. Gordon, 93 Mo. 223 734 Hammond v. Horton, 37 S. W. Bep. 825 734 Hammond v. Johnston, 93 Mo. 198 734 Hammond v. Johnston, 142 U. S. 73 734 Harrell v. Beall, 17 Wall. 590 237 Harris v. Barber, 129 U. S. 366 300 Hart v. Pennsylvania Bailroad, 112 U. S. 331 135 Hart v. Sansom, 110 U. S. 151 248 Hartman v. Keystone Ins. Co., 21 Penn. St. 466 155 Hartog v. Memory, 116 U. S. 588 118 Hastings v. Pratt, 8 Cush. 121 305 Hatch v. Mutual Life Ins. Co., 120 Mass. 550 157 Hayes v. Missouri, 120 IT. S. 68 384 Henderson Bridge Co. v. Kentucky, 166 U. S. 150 274 Hennington v. Georgia, 163 IT. S. 299 138, 627 Hilliard v. Griffin, 33 N. W. Bep. 156 278 Hogan v. Kurtz, 94 U. S. 773 311 Holden v. Minnesota, 137 U. S. 483 385 Holladay v. Daily, 19 Wall. 606 68 Holland v. Challen, 110 U. S. 15 516 Holland v. Silver Bow Commissioners, 15 Montana, 460 431 Hollingsworth v. McDonald, 2 Harr. & Johns. 230; & C. 3 Am. Dec. 545 67 Hough v. Bailway Co., 100 U. S. 213 137 Hovey v. Elliott, 167 IT. S. 409 594 Hoyt v. United States, 10 How. 108 321 Hudson v. White, 17 B. I. 519 411 Hughes v. Edwards, 9 Wheat. 489 311 Hukill v. Mansfield &c. Bailroad, 72 Fed. Bep. 745 97 Hurtado v. California, 110 U. S. 516 384, 387, 388 Hutchins v. King, 1 Wall. 53 428 lasigi v. Van De Carr, 166 U. S. 391 43 Inglis v. Sailors’ Snug Harbor, 3 Pet. 99 659, 660, 682 PAGE Insurance Co. v. Davis, 95 U. S. 425 70, 72, 73 Insurance Co. v. Bodel, 95 U. S. 232 149 Interstate Commerce Commission v. Atchison, Topeka &c. Bailroad, 149 U. S. 264 647 Isaacs v. United States, 159 U. S. 487 575 Isaacson v. Durant, 17 Q. B. D. 54 663 Jackson v. Allen, 132 U. S. 27 101 Jackson v. Moncrief, 5 Wend. 26 76 Jamieson v. Bruce, 6 Gill & Johns. 72; S. C. 26 Am. Dec. 557 310 Jennings v. Webb, 20 D. C. 317 301 Jones v. League, 18 How. 76 120 Kansas City &c. Bailroad v. Daughtry, 138 U. S. 298 98 Keller v. Kunkel, 46 Md. 565 409 Kelly v. Pittsburg, 104 U. S. 78 278 Kemmler, In re, 136 U. S. 436 385 Kemper v. McClelland, 19 O. 308 278 Kennard v. Louisiana, 92 U. S. 480 384, 594, 595 Kershaw v. Kelsey, 100 Mass. 561 72 Kidd v. Pearson, 128 U. S. 1 393 Kilham v. Ward, 2 Mass. 236 663 Kimmish v. Ball, 129 U. S. 217 630 Kirtland v. Hotchkiss, 42 Conn. 426; 100 U. S. 491 431 Kohl v. Lehlback, 160 U. S. 293 44 Ku Klux Cases, So. Car. Ku Klux Trials, 8 225 Lake Shore &c. Bailway v. Prentice, 147 U. S. 101 137 Larned v. Clarke, 8 Cush. 29 305, 309, 310 Latrobe v. Baltimore, 19 Md. 13 431 Lau Ow Bew v. United States, 144 U. S. 47 694 Lawrence v. Heister, 3 Harr. & Johns. 371 68 Lawton v. Steele, .152 U. S. 133 392 Lehigh Mining Co. v. Kelly, 160 U. S. 327 118 Lem Moon Sing v. United States, 158 U. S. 538 694, 699, 700 Levy v. McCartee, 6 Pet. 102 662 Life Ins. Co. v. Terry, 15 Wall. 580 149, 154, 156 Lincoln Co. v. Luning, 133 U. S. 529 517 Litchfield Coal Co. v. Taylor, 81 Ill. 590 394 Little v. Giles, 118 U. S. 596 97 Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397 135 Livingston®. Livingston, 2 Johns. Ch. 537 409 TABLE OF CASES CITED. xv Llano Cattle Co. v. Faught, 5 S. W. Rep. 494 278 Logan v. United States, 144 U. S. 263 221 Loney, In re, 134 U. S. 372 291 Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 566 Look Tin Sing, In re, 10 Sawyer, 353 697, 724 Loring v. Bartlett, 4 D. C. App. 1 302 Louisville&c. Railroad». Wange- lin, 132 U. S. 599 97 I Lows v. Telford, 1 App. Cas. 414 309 Luchs v. Jones, 1 McArthur, 345 302 Ludlam v. Ludlam, 26 N. Y. 356 669, 674 Lynch v. Clarke, 1 Sandf. Ch. 583 664, 669, 674 Lyon v. United States, 8 U. S. App. 409 217 McBroom v. Scottish Mortgage &c. Investment Co., 153 U. S. 318 420 McCombs v. Wallace, 66 No. Car. 481 308 McConihay v. Wright, 121 U. S. 201 516 McCreery v. Somerville, 9 Wheat. 354 661, 662 McCulloch». Maryland, 4 Wheat. 316 427 McKenna v. Fisk, 1 How. 241 90 McLish v. Roff, 141 U. S. 661 646 McMillen v. Anderson, 95 U. S. 37 384 Mager v. Grima, 8 How. 490 277 Maltby v. Reading &c. Railroad, 52 Penn. St. 140 429 Manchester &c. Railway v. Swan, 111U. S. 379 98 Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121 149 Mansfield v. Excelsior Refining Co., 135 U. S. 326 106 Marchant v. Pennsylvania Railroad, 153 U. S. 380 575 Maricopa &c. Railroad». Arizona, 156 U. S. 347 273, 275, 277 Marshall ». Holmes, 141 U. S. 589 463 Martin ». Baltimore &c. Railroad, 151 U. S. 673 98, 101 Medley, In re, 134 U. S. 160 385 Merchants’ &c. Bank ». Pennsyl- vania, 167 U. S. 461 566 Merritt v.. Bowdoin College, 167 U. S. 745 6 555 Metropolitan National Bank ». St. Louis Dispatch Co., 149 U. S. 436 206 । PAGE Metropolitan Railroad v. Moore, 121 U. S. 558 308 Michigan Land & Lumber Co. v. Rust, 168 U. S. 589 365 I Milner ». Freeman, 40 Ark. 62 411 Minor ». Happersett, 21 Wall. 162 383, 654, 655, 680, 724 Mississippi Mills ». Cohn, 150 U. S. 202 517 Missouri v. Lewis, 101 U. S. 22 387 Missouri Pacific Railway ». Fitzgerald, 160 U. S. 556 98 Missouri Railway ». Mackey, 127 U. S. 205 385 Moore ». United States, 91 U. S. 270 654 Moore ». Woolsey, 4 Ell. & Bl. 243 160 Moran ». Sturges, 154 U. S. 256 461 More wood ». Enequist, 23 How. 491 14 Morris v. Gilmer, 129 U. S. 315 118, 120 Morrison ». Bowman, 29 Cal. 337 414 Moss ». Gallimore, 1 Doug. 279 303, 309, 310 Mostyn ». Fabrigas, Cowp. 161 90 Mullett’s Administratrix». United States, 150 U. S. 566 321 Mumford». Sewell, 11 Ore. 67 426 Murphy ». United States, 68 Fed. Rep. 908; 38 U. S. App. 467 210 Murray ». McCarty, 2 Munf. 393 713 Murray’s Lessees ». Hoboken Land Co., 18 How. 272 390 Muser ». Magone, 155 U. S. 240 21, 23 Mutual Life Ins. Co. ». Snyder, 93 U. S. 393 * 575 Myrick ». Michigan Central Railroad, 107 U. S. 102 137 Nashville &c. Railway». Alabama, 128 U. S. 96 138, 633, 642 National Bank ». Case, 99 U. S. 628 7 Neagle, In re, 135 U. S. 1 291 Neal ». Delaware, 103 U. S. 370 383, 676 Necklace ». West, 33 Ark. 682 308 Nelson Lumber Co. ». Loraine, 22 Fed. Rep. 54 282 New Orleans ». Benjamin, 153 U. S. 411 162 New York Life Insurance Co. ». Statham, 93 U. S. 24 72 New York Mutual Life Ins. Co. ». Armstrong, 117 U. S. 591 156 New York, New Haven &c. Railroad ». New York, 165 U. S. 628 138, 627, 633, 642 Nightingale ». Barens, 47 Wis. 389 308 Nishimura Ekiu ». United States, 149 U. S. 698 699 xvi TABLE OF CASES CITED. PAGE Noble v. Union River Logging Railroad, 147 U. S. 165 364 Northern Pacific Railroad v. Austin, 135 U. S. 315 98, 99 Oberteuffer v. Robertson, 116 U. S. 499 21 Ogden v. Brown, 33 Penn. St. 247’ 76 Olcott v. Supervisors, 16 Wall. 678 544 Osborn v. United States Bank, 9 Wheat. 738 703 Oxley Stave Co. v. Butler Co., 166 U. S. 648 110, 733, 734 Paine v. Central Vermont Railroad, 118 U. S. 152 137 Parker v. Ormsby, 141 U. S. 81 163 Patterson v. Kentucky, 97 U. S. 501 633 Pauly v. State Loan & Trust Co., 165 U. S. 606 7 Payne v. Hook, 7 Wall. 425 516 Pearsall v. Supervisors, 74 Mich. 558 585 Peck v. Jenness, 7 How. 612 460, 463 Penn Insurance Co. v. Austin, 168 U. S. 685 89 Pennock v. Dialogue, 2 Pet. 1 307 Pennoyer v. McConnaughy, 140 U. S. 1 519 Pennsylvania Co., In re, 137 U. S. 451 98 People v. Commissioners of Taxes, 91 N. Y. 593 282 People v. Durrant, 50 Pac. Rep. 1070 44 People v. Eastman, 25 Cal. 601 431 People v. Simpson, 28 N. Y. 55 304 People v. Smith, 88 N. Y. 576 428, 431 Persons v. Persons, 25 N. J. Eq. 250 411 Phillips v. Swank, 120 Penn. St. 76 76 Philpin v. McCarty, 24 Kan. 393 278 Pirie v. Tvedt, 115 U. S. 41 97 Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429 274 Poppleton v. Yamhill Co., 18 Ore. 377 426 Post v. United States, 161 U. S. 583 221 Préfet du Nord v. Lebeau, Journal du Palais, 1863, 312 668 Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18 427 Quock Ting v. United States, 140 U. S. 417 696 Radich v. Hutchins, 95 U. S. 210 686 Railroad Commission Cases, 116 U. S. 307 523 Railroad Co. v. Husen, 95 U. S. 465 628, 635 PAGE Railroad Co. v. Lockwood, 17 Wall. 357 135, 137 Randall v. Kreiger, 23 Wall. 137 79 Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362 517, 524 Reagan v. Mercantile Trust Co., 154 U. S. 413 520 'Reed v. Elwell, 46 Me. 270 308 Removal Cases, 100 U. S. 457 103 Rich v. Braxton, 158 U. S. 375 516 Richard v. Southwestern Build- ing & Loan Association, 21 So. Rep. 643 54 Richardson v. Sullivan’s Execu- tors, 20 So. Rep. 815 132 Richmond v. Irons, 121 U. S. 27 8 Richmond &c. Railroad v. Patter- son Tobacco Co., 169 U. S. 311 627 Riggs v. Johnson Co., 6 Wall. 166 460, 464 Riggs v. Palmer, 115 N. Y. 506 360 Rio Grande Railroad v. Gomila, 132 U. S. 478 461 Roach v. Cosine, 9 Wend. 227 303 Robertson v. Frank Brothers Co., 132 U. S. 17 21 Robinson v. Leflore, 59 Miss. 148 409 Romero v. United States, 1 Wall. 721 355 Romie v. Casanova, 91 U. S. 379 734 Rosencrans v. United States, 165 U. S. 257 221 Royall, Ex parte, 117 U. S. 241 290 St. Louis &c. Railway v. Gill, 156 U. S. 649 525 San Francisco v. Itsell, 133 U. S. 65 733 Santa Clara Co. v. Southern Pa- cific Railroad, 118 U. S. 394 522 Saunders v. Lambert, 7 Gray, 484 420 Savings & Loan Society v. Mult- nomah Co., 60 Fed. Rep. 31 426 Sawyer v. Hanson, 24 Me. 542 308 Sayward v. Denny, 158 U. S. 180 622, 733 Schoenfeld v. Hendricks, 152 U. S. 691 21 Scott v. Donald, 165 U. S. 58 519 Scott v. Neely, 140 U. S. 106 517 Seamans v. Temple Co., 105 Mich. 400 91 Secretary v. McGarrahan, 9 Wall. 298 602 Seeberger v. Cahn, 137 U. S. 95 213 215 Sellwood v. Gray, 11 Ore. 534 426 Semple v. Bank of British Co- lumbia, 5 Sawyer, 88 * 426 Shanks v. Dupont, 3 Pet. 242 660, 707 Shedden v. Patrick, 1 Macq. 535 670 Sherlock v. Alling, 93 U. S. 99 632 TABLE OF CASES CITED. xvii PAGE Sherman v. Sherman, 20 D. C. Rep. 330 409 Shibuya Jugiro, In re, 140 U. S. 291 44 Shields v. Coleman, 157 U. S. 168 119, 461, 462 Ship Marcellus, The, 1 Black, 414 14 Shutte v. Thompson, 15 Wall. 151 575 Simpson v. Ammons, 1 Binney, 175; /S'. O'. 2 Am. Dec. 425 430 Sims v. Humphrey, 4 Denio, 185 303 Sinking Fund Cases, 99 U. S. 700 544 Sinnot v. Davenport, 22 How. 227 623, 626 Slaughterhouse Cases, 16 Wall. 36 382, 676, 679, 723, 724, 727 Sloane v. Anderson, 117 U. S. 275 97 Smith v. Alabama, 124 U. S. 465 137, 138, 633, 642, 654, 655 Smith v. McKay 161 U. S. 355 46, 96 Smith v. Townsend, 148 U. S. 490 327 Snyder v. Mt. Sterling National Bank, 94 Ky. 231 420, 421 Soon Hing v. Crowley, 113 U. S. 703 383, 398 Spies v. Illinois, 123 U. S. 131 43 State v. Ah Chew, 16 Nev. 50 697 State v. Earl, 1 Nev. 394 431 State v. Manuel, 4 Dev. & Bat. 20 664 State v. New Lindell Hotel Co., 9 Mo. App. 450 282 State v. Runyon, 41 N. J. Law, 98 428 State v. Smith, 68 Miss. 79 431 State Railroad Tax Cases, 92 U. S. 575 427 State Tax on Foreign-held Bonds, 15 Wall. 300 428 Stedman v. Bland, 4 Ired. Law, 296 420 Steele v. Bond, 28 Minn. 267 „ 308, 309 Stevens v. Lincoln, 7 Met. 525 420 Stone v. Mississippi, 101 U. S.814 393 Strauder v. West Virginia, 100 U. S. 303 383, 676 Stuart v. Hayden, 169 U. S. 1 198 Sullivan v. Richardson, 33 Fla. 1 132 Supreme Commandery v. Ains- worth, 71 Ala. 436 157 Sweet v. Rechel, 159 U. S. 380 568 Tappan v. Merchants’ Bank, 19 Wall. 490 427 Teal v. Walker, 111 U. S. 242 m „ 310,426 lexas &c. Railway v. Volk, 151 U. S. 73 575 Thelusson v. Smith, 2 Wheat. 396 428 PAGE Thompson v. Marshall, 21 Ores 171 426 Thompson v. United States, 103 U. S. 480 603 Thomson v. Pacific Railroad, 9 Wall. 579 521 .Thorpe v. Rutland &c. Railroad, 27 Vt. 140; 8. C. 62 Am. Dec. 625 629 Thredgill v. Pintard, 12 How. 24 363 Tindal v. Wesley, 167 U. S. 204 519 Toland v. Sprague, 12 Pet. 300 221 Toledo &c. Railway v. Detroit &c. Railroad, 62 Mich. 564 585 Torrence v. Shedd, 144 U. S. 527 97 Travellers’ Ins. Co. v. McConkey, 127 U. S. 661 144 Tryon v, Munson, 77 Penn. St. 250 431 Tucker v. Oxley, 5 Cranch, 34 307 Tyler, In re, 149 U. S. 164 519 Tyler v. Campbell, 106 U. S. 322 237 Udny v. Udny, L. R. 1 H. L. Sc. 441 656, 718 Union Mutual Life Ins. Co. v. Kirchoff, 160 U. S. 374 107, 735 Union Pacific Railroad v. Peniston, 18 Wall. 5 277, 521 United States ex rel. Crawford v. Addison, 22 How. 174 598 United States v. Boutwell, 17 Wall. 604 602, 604 United States v. Bradley, 10 Pet. 343 346, 347, 348 United States v. Butler, 1 Hughes, 457 229 United States v. Chandler, 122 U. S. 643 604 United States v. Child, 12 Wall. 232 322 United States v. Flanders, 112 U. S. 88 348 United States v. Hodson, 10 Wall. 395 361 United States v. Hooe, 3 Cranch, 73 428 United States v. Jones, 109 U. S. 513 568 United States v. Jordan, 113 U. S. 418 255 United States v. Kaufman, 96 U. S. 567 253, 257 United States v. Kellar, 11 Bissell, 314 673 United States v. Kenworthy, 28 U. S. App. 450 24 United States v. King, 147 U. S. 676 321 United States v. Klingenberg, 153 U. S. 93 20 xviii TABLE OE CASES CITED. PAGE United States v. Lacher, 134 U. S. 624 227 United States v. Le Baron, 19 How. 73 347, 348 United States v. Linn, 15 Pet. 290 346, 348 United States v. Lochren, 164 U. S. 701 604 United States v. Louisville, 169 U. S. 249 256, 260 United States v. Martin, 94 U. S. 400 322 United States». Mosby, 133 U. S. 273 349, 350 United States v. Nourse, 9 Pet. 8 465 United States v. Peralta, 19 How. 343 179 United States v. Railroad Co., 17 Wall. 322 250, 256 United States v. Rhodes, 1 Abb. U. S. 28 662 United States v. Rice, 4 Wheat. 246 683 United States v. Santa Fe, 165 U. S. 675 178 United States v. Savings Bank, 104 U. S. 728 253, 257 United States v. Stone, 2 Wall. 525 364,365 United States v. Union Pacific Railway, 160 U. S. 1 519 United States Trust Co. v. O’Brien, 143 N. Y. 284 37 Utah &c. Railway v. Fisher, 116 U. S. 28 273, 275, 277 Van Ness v. Hyatt, 13 Pet. 294 304, 310 Van Ness v. Pacard, 2 Pet. 137 709 Vicksburg &c. Railroad v. Put- nam, 118 U. S. 545 152 Virginia, Ex parte, 100 U. S. 339 383, 676 Virginia v. Rives, 100 U. S. 313 383 Walker v. Sauvinet, 92 U. S. 90 384, 595 Wall, Ex parte, 107 U. S. 265 384 Walsh-Serrant ». Walsh-Serrant, 3 Journal du Palais, 384 ; S. C. 8 Merlin, Jurisprudence (5th ed.), Domicile, § 13 666 Walston ». Nevin, 128 U. S. 578 384 Warax ». Cincinnati &c. Railway, 72 Fed. Rep. 637 97 PAGE Warner ». Texas &c. Railway, 164 U. S. 418 308 Warner Valley Stock Co. ». Smith, 165 U. S. 28 604 Waterman ». Mackenzie, 138 U. S. 252 429 Watson ». Dundee Mortgage Co., 12 Ore. 474 426 Watson ». Mercer, 8 Pet. 88 79 Webster ». Luther, 163 U. S. 331 363 Webster’s Lessees ». Hall, 2 Harr. & McH. 19 ; S. C. 1 Am. Dec. 370 67 Werner ». Charleston, 151 U. S. 360 735 West ». West, 8 Paige, 433 673 Western Union Tel. Co. ». James, 162 U. S. 650 138, 634, 642 Wheaton ». Peters, 8 Pet. 591 709 Whiting ». Bancroft, 1 Story, 560 212 Whitten ». Tomlinson, 160 U. S. 231 89, 290 Whitwell ». Harris, 106 Mass. 532 306 Wildenhus’s Case, 120 U. S. 1 686 Williams ». Nottawa, 104 U. S. 209 118, 120 Willson ». Black Bird Creek Marsh Co., 2 Pet. 245 622 Wilson, Ex parte, 114 U. S. 417 654 Winona &c. Railroad ». Barney, 113 U. S. 618 361 Wisconsin Central Railroad ». United States, 164 U. S. 190 257, 259 Witherspoon ». Duncan, 4 Wall. 210 277 Witmer’s Appeal, 45 Penn. St. 455; N. C. 84 Am. Dec. 505 429 Wong Kim Ark, In re, 71 Fed. Rep. 382 697 Wong Wing». United States, 163 U. S. 228 694, 699 Wood ». Rabe, 96 N. Y. 414 408 Wy Shing, In re, 13 Sawyer, 530 697 Yick Wo ». Hopkins, 118 U. S. 356 383, 392, 398, 694, 696 Young ». Merchants’ Ins. Co., 29 Fed. Rep. 273 229 Youngman ». Elmira &c. Railroad, 65 Penn. St. 278 430 Yung Sing Hee, In re, 13 Sawyer, 482 697 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1789, Sept. 24, 1 Stat. 73, c. 20 163, 221, 222 1790, Mar. 26, 1 Stat. 103, c. 3 672, 673, 687, 701 1790, June 4,1 Stat. 126, c. 17... 222 1790, June 23, 1 Stat. 128, c. 21 222 1795, Jan. 29, 1 Stat. 414, c. 20 672, 673, 687, 701, 711, 712 1798, June 18, 1 Stat. 566, c. 54 672, 687 1802, Apr. 14, 2 Stat. 153, c. 28 672, 673, 674, 687, 701 1804, Mar. 26, 2 Stat. 292, c. 47 672, 701 1816,Mar.22,3 Stat. 258, c.32..687, 701 1816, Apr. 27, 3 Stat. 310, c. 107 213 1820, Apr. 24, 3 Stat. 566, c. 51.. 354 1823, Feb. 21, 3 Stat. 726, c. 11 222, 223, 228 1824, May 22, 4 Stat. 25, c. 136.. 213 1824, May 25, 4 Stat. 34, c. 145 223, 224 1824, May 26, 4 Stat. 69, c. 186.. 701 1825, Mar. 3, 4 Stat. 124, c. 78... 223 1826, May 4, 4 Stat. 160, c. 37... 223 1828, May 19, 4 Stat. 270, c. 55... 213 1828, May 24, 4 Stat. 310, c. 116 687, 701 1829, Feb. 24, 4 Stat. 335, c. 19.. 223 1832, July 14, 4 Stat. 583, c. 227 213 1842, Aug. 23, 5 Stat. 508, c. 183 321 1842, Aug. 30, 5 Stat. 548, c. 270 213 1845, Mar. 1, 5 Stat. 730, c. 39... 223 1846, July 30, 9 Stat. 42, c. 74 213, 216 1847, Feb. 11, 9 Stat. 123, c. 8... 237 1851, Mar. 3, 9 Stat. 631, c. 41 357, 358, 362 1852, Mar. 30, 10 Stat. 61, c. 106 632 1855, Feb. 10, 10 Stat. 604, c. 71 672, 674, 687, 689, 692 1856, Aug. 16, 11 Stat. 43, c. 119 223, 224 .1856, Aug. 18, 11 Stat. 52, c. 127 343 1862, July 1, 12 Stat. 489, c. 120 519, 521, 1862, July 14, 12 Stat. 543, c. 163 1862, July 15, 12 Stat. 576, c. 178 1862, July 17, 12 Stat. 589, c. 189 1863, Feb. 25, 12 Stat. 665, c. 58 1863, Mar. 3, 12 Stat. 794, c. 100 1863, Mar. 3, 12 Stat. 808, c. 116 1864, June 3, 13 Stat. 99, c. 106.. 1864, June 17, 13 Stat. 136, c. 133 1864, June 30, 13 Stat. 202, c. 171 1864, June 30, 13 Stat. 223, c. 173 249, 258, 260, 1864, July 2, 13 Stat. 372, c. 218 1864, July 4, 13 Stat. 383, c. 243 299, 300, 304, 306, 307, 1865, Mar. 3, 13 Stat. 531, c. 110 1865, Mar. 3, 13 Stat. 534, c. 115 1866, Apr. 9, 14 Stat. 27, c. 31 674, 675,681, 688, 692, 707,719. 1866, June 15, 14 Stat. 66, c. 124 1866, June 27, 14 Stat. 74, c. 140 1866, July-13, 14 Stat. 98, c. 184 1866, July 23, 14 Stat. 209, c. 210 1866, July 23, 14 Stat. 218, c. 219 354, 356, 357, 358, 360, 361, 1867, Mar. 2, 14 Stat. 559, c. 197 1868, July 27, 15 Stat. 223, c. 249 704, 1869, Apr. 10, 16 Stat. 44, c. 22.. 1870, May 31, 16 Stat. 144, c. 114 1870, July 1, 16 Stat. 179, c. 186 224, 1870, July 14, 16 Stat. 256, c. 254 1870, July 15, 16 Stat. 335, c. 296 1872, June 5, 17 Stat. 228, c. 310 1875, Feb. 18, 18 Stat. 318, c. 80 1875, Mar. 3, 18 Stat. 470, c. 137 117, 119, 120, 555, 1876, Feb. 1, 19 Stat. 2, c. 6..... 1877, Mar. 2, 19 Stat. 268, c. 82 1882, May 6, 22 Stat. 58, c. 126 650, xix PAGE 522 213 224 75 418 224 358 418 358 213 263 358 308 60 358 695, ,721 635 227 258 224 363 213 713 224 695 225 701 269 270 702 556 336 227 702 XX TABLE OF STATUTES CITED. PAGE 1883, Feb. 26, 22 Stat. 424, c. 56 345 1883, Mar. 3, 22 Stat. 488, c. 121 213 1884, May 29, 23 Stat. 31, C. 60 618, 619, 622 1884, July 5, 23 Stat. 115, c. 220 650 1887, Feb. 4, 24 Stat. 379, c. 104 645 1887, Mar. 3, 24 Stat. 552, c. 373 100, 117, 162 1888, July 18, 25 Stat. 328, c. 677 622 1888, Aug. 13, 25 Stat. 433, c. 866 . 52, 100, 117, 162, 163 1888, Sept. 13, 25 Stat. 476, c. 1015............................... 650 1888, Oct 1, 25 Stat. 504, c. 1064 650 1889, Feb. 6, 25 Stat. 655, c. 113 229 1889, Feb. 9, 25 Stat. 659, c. 122 622 1889, Feb. 25, 25 Stat. 693, c. 236 117, 118 1889, Mar. 1, 25 Stat. 757, c. 317 328 1889, Mar. 2, 25 Stat. 835, c. 373 622 1889, Mar. 2, 25 Stat. 855, c. 382 645 1889, Mar. 2, 25 Stat. 980, c. 412 323, 326, 328 1890, Apr. 26, 26 Stat. 71, c. 165 229 1890, May 2, 26 Stat. 81, c. 182.. 270 1890, May 9, 26 Stat. 105, c. 200 214, 215 1890, May 14, 26 Stat. 109, c. 207 325 1890, June 10, 26 Stat. 131, c. 407 19, 21 1890, June 16, 26 Stat. 157, c. 424 250, 252, 253, 254 1890, Oct. 1, 26 Stat. 567, c. 1244 210, 212, 214, 215, 216, 217 1891, Feb. 28, 26 Stat. 794, c. 383 272 1891, Mar. 3, 26 Stat. 826, c. 517 46, 87, 88, 96, 118, 163, 556, 557, 646, 647, 648 1891, Mar. 3, 26 Stat. 854, c. 539 176 1891, Mar. 3, 26 Stat. 862, c. 540 251, 253, 254, 255 1891, Mar. 3, 26 Stat. 1044; c. 544 618, 637 1892, May 5, 27 Stat. 25, c. 60... 650 1893, Feb. 24, 27 Stat. 474, c. 157 297 1893, Feb. 25, 27 Stat. 477, c. 165 251, 252, 253, 254, 255, 256, 257, 258, 259 1894, Aug. 18, 28 Stat. 390, c.301 650 1894, Aug. 27, 28 Stat. 509, c. 349 210, 211, 212, 214, 215, 216, 217 1896, May 28, 29 Stat. 140, c. 252 230 1897, Mar. 3, 29 Stat. 692, c. 390 298 1897, July 24, 30 Stat. 151, c. 11 215 Revised Statutes. §§ 530,531......................... 225 § 546 .........................225, 228 §§ 551, 552................... 225 § 563 ............................ 226 § 571 .........................226, 229 § 572 ............................ 226 PAGE Rev. Stat, {cont.} § 604.......................... 226 § 608 .......................226, 229 § 629 ............................ 227 § 658 ........................... 226 § 707 ............................ 352 § 709 .......................Ill, 115 § 761.............................. 43 § 767 ............................ 226 § 776 ............................ 226 § 817..............................232 §§ 1037, 1038 ................232, 233 § 1674 ......................336, 343 § 1693 ........................... 716 § 1695 ........................... 336 § 1698 ........................... 346 § 1703 ........................... 337 § 1709 ........................... 351 § 1738 .......................... 345 § 1745 ........................... 351 § 1764 ........................... 320 § 1765 ........................... 321 § 1977 ........................... 695 § 1992............................ 720 § 1993 ....672, 674, 687, 714, 722 § 1999 ......................704, 713 § 2000 ........................... 714 § 2165 ......................672, 687 §§ 2167, 2168...................... 722 § 2169 ........................... 702 § 2172 ............672, 687, 714, 722 § 2304 ........................... 363 § 2306 ........................... 363 § 2733 ...................... 320, 321 §§ 3010,3011........................ 21 § 3220 ...................... 250, 258 § 3228 ......................250, 259 § 3738 ........................... 322 § 4130 ........................... 336 § 5139............................ 6 § 5151........................2, 6, 14 § 5152.............................. 8 § 5197............................ 417 § 5198...................417, 418, 419 § 5234.............................. 2 § 5258 ..................618, 637, 638 § 5440 ......................218, 231 § 5480 ........................... 218 District of Columbia. Comp. Laws, c. 23, §§8,9.. 407 c. 42, § 6 .... 206 c. 48, § 1 .... 311 c. 55, § 10 ... 311 Rev. Stat., § 480.................. 36 TABLE OF STATUTES CITED. xxi (B.) Statutes of the States and Territories. PAGE Arkansas. Dig. Stat, of 1894, p. 1149, c. 109 ............... 394 California. 1872, Mar. 16, Laws of 1871- 1872, c. 305 ..................... 394 1874, Mar. 27, Laws of 1873- 1874, c. 498 ..................... 394 1881, Mar. 14, Laws of 1881, c. 72 ................. 394 1893, Mar. 8, Laws of 1893, c. 74 ................. 394 Penal Code, § 1227 ........... 40 § 1243 ........... 40 Colorado. Mills’ Anno. Stat., vol. 3 sup., c. 85 ................. 394 Connecticut. Gen. Stat, of 1888, §§ 2263-2272................... 394 §§ 2645-2647 ..................... 394 Illinois. Rev. Stat, of 1889, p. 980 ... 394 Indiana. Thornton’s Stat, of 1897, p. 1652, c. 98 ....... 394 Iowa. 1866, Laws of 1866, c. 113... 136 Code of 1873, § 1308 .... 134, 136 § 4059..........630 Kansas. 1881, Laws of 1881, c. 161 .. 616 1884, Laws of 1884, c. 2.... 616 1884, Laws of 1884, c. 4.... 616 1884, Laws of 1884, c. 5.... 616 1885, Laws of 1885, c. 191.. 622 1891, Laws of 1891, c. 201.. 616 Gen. Stat, of 1897, vol. 2, p. 761, c. 139.................... 616 pp. 813-824 ...................... 394 Kentucky. Barbour & Carroll’s Stat., p. 951, c. 88.......... 394 Maine. Rev. Stat, of 1857, c. 94.... 308 Maryland. 1715, 1 Kilty’s Laws, c. 23... 206 1715, 1 Kilty’s Laws, c. 47.. 64 1752, 1 Kilty’s Laws, c. 8... 64 1766, 1 Kilty’s Laws, c. 14.. 64 1785, 1 Kilty’s Laws, c. 80.. 605 Massachusetts. 1891, May 21, Laws of 1891, c. 350................ 394 1892, Mar. 19, Laws of 1892, c. 83 ................. 394 1892, Apr. 25, Laws of 1892, c. 210................. 394 PAGE Mass, (cont.) 1892, June 8, Laws of 1892, c. 352 ................. 394 1892, June 11, Laws of 1892, c. 357 ................. 394 1893, June 3, Laws of 1893, c. 406 ................. 394 1894, June 22, Laws of 1894, c. 508 ................. 394 1895, Mar. 16, Laws of 1895, c. 129 ................. 394 Rev. Stat, of 1836, c. 104 304, 306 Gen. Stat, of 1860, c. 137 306, 307 Michigan. 1855, Feb. 12, Laws of 1855, No. 82.................... 559 1881, June 9, Laws of 1881, No. 224. .................. 559 1891, Laws of 1891, c. 182.. 84 1893, Laws of 1893, c. 79 84, 88 Howell’s Stat., § 3461 ...... 558 § 3466...559, 575 § 3467...559, 560 § 3468..559, 560, 576, 577 § 4331 ...... 92 § 4354 ...... 92 § 8136....... 92 Nebraska. § 92090..... 394 1887, Sess. Laws of 1887, c. 60 ......................470 1893, Apr. 12, Laws of 1893, c. 24....470, 471, 534, 535, 536, 537, 539, 543, 547, 550 Comp. Stat., of 1893, c. 72, art. 8.............. 470 art. 12........................... 470 Rev. Stat., c. 72, art. 5...... 470 art. 8......470 New Jersey. Gen. Stat., vol. 2, p. 1900 ... .394 New York. 1820, Laws of 1820, c. 194 .. 303 1879, May 21, Laws of 1879, c. 347 ................ 153 Birdseye’s Stat., vol. 2, p. 2069................ 394 Rev. Stat., vol. 2, pt. 3, c. 8, tit. 10, § 28 ......... 303 North Carolina. 1891, Laws of 1891, c. 320 .... . 586, 591 Oklahoma. 1895, Mar. 5, Sess. Laws of 1895, c. 43...265, 268, 272, 275, 276, 283 xxii TABLE OF STATUTES CITED. PAGE Oklahoma (coni.). Comp, Stat, of 1893, c. 70, art. 2, § 13 ...............265 Oregon. 1880, Oct, 25, Laws of 1880, p. 52...................... 425 1882, Oct. 26, Laws of 1882, p. 64.........422, 423, 424, 425 Gen. Laws of 1843-1872, S S9S 19ft Hills’ Anno, Code, § 326.... 426 § 2730... 424 §§ 2735-2738... 424 § 2752... 425 §§ 2753- 2756... 424 PAGE Pennsylvania. 1881, May 11, Laws of 1881, p. 20, No. 23 ...........143, 144 Brightly’s Pardon’s Dig., sup. of 1885-1887, p. 2241 394 Texas. 1889, Mar, 30, Gen. Laws of 1889, c. 117 ................285, 288 Utah. 1896, Mar, 30, Sess. Laws of 1896, p, 219, c. 72 ............ 380 Virginia. Code of 1887, § 1295............. 313 (C.) Foreign Statutes. China. Staunton’s Penal Code, § 255 726 Great Britain. 1343,17 Edw. Ill......... 668, 669 1350, 25 Edw. III.. 668, 669, 670, 714 1606, 3 Jac. I, c. 4......... 711 1677, 29 Car. II, c. 6........ 671 1700, 11 & 12 Will. Ill, c. 6 661, 662 1708, 7 Anne, c. 5........671, 714 i Great Britain (coni.). 1731, 4 Geo. II, c. 21.... 663, 671 1773, 13 Geo. Ill, c. 21. .663, 671 1833, 3 & 4 Will. IV, c. 74 .. 64 1870, 33 Viet., c. 14............ 667 Mexico. 1823, Jan. 4, Rockwell’s Spanish Laws, p. 617.. 170 177, 181, 182, 184 1824, Aug. 18, Rockwell’s Spanish Laws, p. 451........ 177 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1897. STUART V. HAYDEN. GRUETTER v. STUART. APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. Nos. 151,160. Argued December 9, 10, 1897. —Decided January 10,1898. One who holds shares of national bank stocky- the bank being at the time insolvent — cannot escape the ind&idualjMoility imposed by the statute by transferring his stock with_|ntent t«i having reason to believe, at tM^ time bank, that it is insolvent qX^ooutzfi? fail ^avoid that liability, knowing or the^yansfer on the books of the A transfer with such inte^Xnd u^her sucV circumstances, is a fraud upon the creditors of the bjQik, an^nay b^freated by the receiver as inoperative between the transferí^* and^hnself, and the former held liable as a shareholder without i^rereno^&o the financial condition of the transferee. . ... O* cP . . The right of creditors of a national bank to look to the individual liability of shareholders, to the extent indicated by the statute, for its contracts, debts and engagements, attaches when the bank becomes insolvent ; and the shareholder cannot, by transferring his stock, compel creditors to surrender this security as to him, and force the receiver and creditors to look to the person to whom his stock has been transferred. If the bank be solvent at the time of the transfer, that is, able to meet its existing contracts, debts and engagements, the motive with which the 2 OCTOBER TERM, 1897. Opinion of the Court. transfer is made is immaterial, as a transfer under such circumstances does not impair the security given to creditors; but if the bank be insolvent, the receiver may, without suing the transferee and litigating the question of his liability, look to every shareholder who, knowing or having reason to know, at the time, that the bank was insolvent, got rid of his stock in order to escape the individual liability to which the statute subjected him. Whether, the bank being in fact insolvent, the transferrer is liable to be treated as a shareholder in respect of its existing contracts, debts and engagements, if he believed in good faith, at the time of the transfer, that the bank was solvent — not decided; although he may be so treated, even when acting in good faith, if the transfer is to one who is financially irresponsible. Where the Circuit Court and the Circuit Court of Appeals agree as to what facts are established by the evidence, this court will not take a different view, unless it clearly appears that the facts are otherwise. The case is stated in the opinion. Mr. C. C. Flansburg for Stuart. Mr. G. M. Lambertson for Hayden. Mr. Amasa Cobb, Mr. A. E. Harvey and Mr. F. M. Hall were on his brief. Mr. John H. Ames for Gruetter. Mr. Justice Harlan delivered the opinion of the court. On the 6th day of February, 1893, the Comptroller of the Currency appointed a receiver of the Capital National Bank of Lincoln, Nebraska, which had a nominal capital of three hundred thousand dollars. The bank had shortly before suspended business, and upon due examination had been found to be insolvent. Subsequently, June 10, 1893, that officer — having first determined that in order to pay the debts of the bank it was necessary to enforce the individual liability of shareholders as prescribed in sections 5151 and 5234 of the Revised Statutes — made an assessment for three hundred thousand dollars, to be paid by shareholders equally and ratably on or before July 10, 1893. Of this assessment and requisition Stuart had proper notice. STUART v. HAYDEN. 3 Opinion of the Court. In execution of this order the receiver brought the present action against Stuart. Stuart became the owner of one hundred shares of the stock of the Capital National Bank in 1884, and of fifty additional shares in 1886. Substantially from the time of becoming a shareholder he was one of the directors of the bank, and a member of its finance committee, and acted in both capacities until about December 16,1892. On the last named day, Gruetter & Joers, dealers in furniture at Lincoln, sold to Stuart certain real property in that city for $67,500, upon which there was at the time a mortgage for $30,000 bearing interest at the rate of six per cent per annum. The terms of the contract were that Stuart should assume the mortgaffe debt, deliver to Gruetter & Joers his stock in the Capital National Bank as of the value of $18,000, meet the taxes on the property, which then amounted to $250, and pay the balance of the price in cash; Gruetter & Joers to take a lease of the real estate for ten years, at $6000 per year. At the time of this agreement, Stuart paid $1000 to bind the bargain. On the 22d day of December, 1892, Gruetter & Joers made their deed to Stuart for the real estate; and Stuart delivered to them his certificates of shares of stock, having signed the blank forms of powers of attorney endorsed thereon, and paid the balance of the agreed price in cash, the taxes on the property and the interest that had accrued on the mortgage. On the 3d day of January, 1893, the certificates of stock, with the blank powers of attorney endorsed thereon, were returned to the bank, and new certificates were issued to Gruetter & Joers. The bank closed its doors within less than three weeks after the stock was transferred on its books to Gruetter & Joers, its total assets being about $900,000, and total liabilities $1,463,013.17. Its bills receivable on hand were $519,600, of which $58,596.82 were good, $141,393.27 were doubtful, and $319,611.90 were worthless. Its bills receivable not on hand amounted to $141,000, of which only $10,000 were worth anything. 4 OCTOBER TERM, 1897. Opinion of the Court. The original bill was against Stuart alone. But a demurrer for want of parties having been sustained, an amended bill was filed against Stuart, Gruetter and Joers. The amended bill alleged in substance that, at the time of the transaction between Stuart and Gruetter & Joers, the former was fully advised of the failing condition and insolvency of the bank, and transferred his stock to them in anticipation of its early failure and the necessary enforcement of the liability of shareholders for the benefit of creditors, and with the intent to evade such liability and to defraud the creditors of the bank. The relief sought was a decree setting aside the transfers of stock, and adjudging that Stuart was liable as a shareholder of the bank under the assessment made by the Comptroller of the Currency. It was further alleged by the receiver that Gruetter & Joers were, at the time of the transfer to them of Stuart’s stock, pecuniarily irresponsible persons, from whom the amount of such assessment upon each share of the stock so owned and held by Stuart could not be made by legal process or otherwise. Stuart in his answer insisted that the sale to Gruetter & Joers was an ordinary business transaction, and denied that he had, at the time of his purchase from Gruetter & Joers, any knowledge whatever of the condition of the bank, or that he knew that the bank was then insolvent, or that he expected it to fail; that, on the contrary, he believed it to be perfectly solvent, and sold and transferred his stock without any thought of the enforcement of his liability as a shareholder, and without any intention to evade such liability or to defraud the bank’s creditors. . Gruetter & Joers answered, and averred that Stuart made the transfer of stock to them with full knowledge of the failing condition and insolvency of the bank, in anticipation of its approaching suspension and with the intent to defraud the bank, its depositors and creditors, of the security afforded by law to such depositors and creditors, and render it impossible to enforce his liability as a shareholder; also, that Stuart, with the knowledge and intent stated, represented and warranted to them that the bank was in a safe and solvent STUART v. HAYDEN. 5 Opinion of the Court. condition, and that its stock was reasonably worth $125 per share, or $18,000 in all. They also filed a cross-bill against the receiver and Stuart, in which the relief sought was a decree declaring the transfer of the stock standing in the name of Stuart to be fraudulent and void as against them, as well as against the receiver and the creditors of the bank, and adjudging that Stuart make full restitution to them of the amount at which such stock was received on the contract for the purchase of the real property sold and conveyed to him. The decree in the Circuit Court recited — though not in the form of a finding of facts — that on and prior to January 3, 1893, Stuart was the owner of and had standing in his name upon the books of the bank the shares of stock above mentioned; that on or about December 16, 1892, and for more than eight years prior to that date, he was a member of the Board of Directors and of the finance committee of the bank; that on both of the above dates he had knowledge of its then existing insolvency; that at the time of the transfer of the stock he represented to Gruetter & Joers that the bank was in a solvent and prosperous condition, and that such representation was made for the purpose of inducing them to purchase the stock, and of evading and escaping his liability as a shareholder for an assessment thereon. It was then ordered, adjudged and decreed that the sale, assignment and transfer of the one hundred and fifty shares of stock of the Capital National Bank was wholly void as against the receiver and Gruetter & Joers; that the sale, assignment and transfer be set aside, cancelled and held for naught; that the stock be reinstated upon the books of the bank in the name of Stuart, who was declared to be the holder and owner thereof; that Stuart, within twenty days from the date of the decree, pay to the receiver the full amount of the assessment against the stock, and that the receiver recover from him the sum of fifteen thousand dollars, together with interest at the rate of seven per cent per annum, from the 10th day of July, 1893, being in the aggregate the sum of sixteen thousand eight hundred seventy-five and dollars; that Stuart, 6 OCTOBER TERM, 1897. Opinion of the Court. within twenty days from the date of the decree, make full restitution and payment to Gruetter & Joers of the amount of the purchase price of the stock, to wit, the sum of eighteen thousand dollars, together with interest thereon at the rate of seven per cent per annum, from the third day of January, 1893, being in the aggregate the sum of twenty thousand nine hundred and five dollars; that Gruetter & Joers be relieved from all liability to the receiver for and on account of any assessment on the stock, and in case Stuart neglected to pay each of the aforesaid sums of money, together with the costs of the suit, to be taxed by the clerk, that execution should issue therefor. Upon appeal to the Circuit Court of Appeals the decree was reversed, without costs to either party, and the cause was remanded with instructions to enter a decree declaring the transfer of stock from Stuart to Gruetter & Joers to be fraudulent and voidable as to the receiver of the bank; that the receiver recover of Stuart the assessment made upon him, with costs; and that Gruetter & Joers were not entitled to relief against Stuart in this suit, and their cross-bill should be dismissed with costs to Stuart. 36 U. S. App. 462. In the opinion of that court it is stated that the evidence justified the conclusion reached by the Circuit Court as to the facts. From the decree of the Circuit Court of Appeals the present appeals have been prosecuted. The shares of the capital stock of a national bank are transferable on its books in such manner as may be prescribed by the by-laws or articles of the association, and every one becoming a shareholder by such transfer succeeds, in proportion to his shares, to all the rights and liabilities of the prior holder. Rev. Stat. § 5139. It is also provided by statute that “the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in sdch shares.” Rev. Stat. § 5151. STUART v. HAYDEN. 7 Opinion of the Court. The principal inquiry in this case is whether Stuart transferred his stock to Gruetter & Joers in order to escape the liability imposed by statute upon shareholders of national banking associations. His contention is that if the transfer was absolute and to persons who were at the time solvent and able to respond to an assessment upon the shares, the motive with which the transfer was made is of no consequence. This construction of the statute seems to find some support • in the general language used in a few cases. But it will be found upon examination that those cases were dealt with upon the basis that the facts therein showed not only an intent upon the part of the shareholder to escape liability by transferring his stock, but that the transfer was either colorable or to a person who was financially irresponsible at the time of such transfer. There is no case in which this court has held that the intent with which the shareholder got rid of his stock was of no consequence; certainly, no case in which the intent was held to be immaterial, when coupled with knowledge or reasonable belief upon the part of the transferrer that the bank was insolvent or in a failing con-' dition. In National Bank v. Case, 99 U. S. 628, 631, 632, this court, speaking by Mr. Justice Strong, said that while a shareholder of the stock of a corporation has, generally, a right to transfer his shares, and thereby disconnect himself from the corporation, and from responsibility on account of it, there were limits to that right; that it is not every transfer that releases a stockholder from his responsibility as such ; and that “ a transfer for the mere purpose of avoiding his liability to the company or its creditors is fraudulent and void, and be remains still liable.” And in Pauly v. State Loan and Trust Company, 165 U. S. 606, 619, where the previous cases in this court were reviewed, it was held to have been established that “ if the real owner of the shares [of a national banking association] transfers them to another person, or causes them to be placed on the books of the association in the name of another person, with the intent simply to evade the responsibility imposed by section 5151 on shareholders of national banking 8 OCTOBER TERM, 1897. Opinion of the Court. associations, such owner may be treated, for the purposes of that section, as a shareholder, and liable as therein prescribed.” The safety of a national banking association, so far as its creditors are concerned, depends largely upon the security given by the statutory provision entitling creditors to look to the individual liability of shareholders, including the liability of the estates and funds in the hands of executors, guardians and trustees holding shares of national bank stock. § 5152. One who holds such shares — the bank being at the time insolvent— cannot escape the individual liability imposed by the statute by transferring his stock with intent simply to avoid that liability, knowing or having reason to believe, at the time of the transfer on the books of the bank, Richmond, v. Irons, 121 U. S. 27, 58, that it is insolvent or about to fail. A transfer with such intent and under such circumstances, is a fraud upon the creditors of the bank, and may be treated by the receiver as inoperative between the transferrer and himself, and the former held liable as a shareholder without reference to the financial condition of the transferee. The right of creditors of a national bank to look to the individual liability of shareholders, to the extent indicated by the statute, for its contracts, debts and engagements, attaches when the bank becomes insolvent, and the shareholder cannot, by transferring his stock, require creditors to surrender this security as to him, and compel the receiver and creditors to look to the person to whom his stock has been transferred. This court has said that “ the individual liability of the stockholders is an essential element in the contract by which the stockholders became members of the corporation. It is voluntarily entered into by subscribing for and accepting shares of stock. Its obligation becomes a part of every contract, debt and engagement of the bank itself, as much so as if they were made directly by the stockholder instead of by the corporation. There is nothing in the statute to indicate that the obligation arising upon these undertakings and promises should not have the same force and effect, and be as binding in all respects, as any other contracts of the individual stockholders.” Richmond v. Irons, 121 U. S. 27, 55, 56. If the bank be sol- STUART v. HAYDEN. 9 Opinion of the Court. vent at the time of the transfer, that is, able to meet its existing contracts, debts and engagements, the motive with which the transfer is made is, of course, immaterial. But if the bank be insolvent, the receiver may, at least, without suing the transferee and litigating the question of his liability, look to those shareholders who, knowing or having reason to know, at the time, that the bank was insolvent, got rid of their stock in order to escape the individual liability to which the statute subjected them. Whether—the bank being in fact insolvent — the transferrer is liable to be treated as a shareholder, in respect of its existing contracts, debts and engagements if he believed in good faith, at the time of transfer, that the bank was solvent, is a question which, in the view we take of the present case, need not be discussed; although he may be so treated, even when acting in good faith, if the transfer is to one who is financially irresponsible. The intent with which an act was done may be proved by the declarations of the party concerned, or by facts and circumstances from which the existence of the intent may be reasonably inferred. Stuart, both in his answer and as a witness in his own behalf, denies that the sale of his stock was with the view of escaping his liability as a shareholder. He states, also, that it was an ordinary business transaction, and so far from knowing at the time that the bank was insolvent, he believed it to be solvent and able to meet its liabilities of every kind. But the contention of the receiver was sustained by the proof in the cause. It was in evidence that Stuart, for some time previous to the sale of his stock, had been dissatisfied with the conduct of Mosher, the president of the bank. In addition to the latter’s duties as president he wras in enterprises that required much attention, and which must have interfered with the proper supervision of the affairs of the bank. He was connected with a manufacturing company, an insurance company and a gas company; was interested in a company engaged in the making of staves in Arkansas; was in the skating rink business, and also in the baseball business. In addition, he had a penitentiary con- 10 OCTOBER TERM, 1897. Opinion of the Court. tract, and was a legislative lobbyist. All this was well known to Stuart when he sold his stock to Gruetter & Joers. Before that transaction, he had received an “intimation” that the next general dividend would be passed. He also had information that a large amount of the bank’s money was “ locked up ” in real estate, and invested in worthless securities. And he was in a position to ascertain, with at least reasonable certainty, the condition of the bank at or before the sale of his stock to Gruetter & Joers. As a director he signed each of the reports made to the Comptroller of the Currency of the condition of the bank at the close of business on September 25, 1891, December 2, 1891, March 1, 1892, May 17, 1892, and September 30, 1892. He did not sign the report of December 9, 1892. In addition, his membership of the finance committee of the bank gave him peculiar facilities to ascertain how the bank’s money was being used •by its president. And that he had information that made him somewhat uneasy about the condition of the bank, and its management by Mosher, is shown by his own testimony as well as by his declarations to witnesses, whose intelligence and truthfulness are not impeached by anything in the record, except the denial by Stuart that he said just what those witnesses testified that he did say. Nor is this negatived by the circumstance that Stuart and his wife had each $1250 on deposit in the bank at the time its doors were closed. That may be accounted for by the fact, admitted by him, that he did not expect the bank to fail so soon. When the bank failed, Mrs. King, the wife of Dr. S. H. King, had $26,105.80 on deposit there. The first intimation she received of the failure was a statement in a morning paper that the bank had closed its doors. She hurried to the residence of Stuart to ascertain what was the matter with the bank. Her account of the interview with him was as follows: “ 1 told him the Doctor had sent me there for him to tell me about the bank, what the condition had been, and if there was anything wrong, and he sat down, and in his good, quiet way told me he did not like the way the bank had been doing for a long time. He said he did not like their going into the STUART v. HAYDEN. 11 Opinion of the Court. Western Manufacturing Company business, and he said he had a talk with Mr. Mosher about it, and he said he did not like the Arkansas business, and I asked him what that was, and he said it was a stave business, and he said he did not know of any loss of money in it, but he did not like it, and he said from that they went into the skating rink business, and he said then he felt mad, and he said this is not banking, and I told them so, and then he said, when they went into the baseball business, I said it must be stopped; that we must stop that and do a banking business, and not run after these outside affairs, and, as near as I can give it, he said they were mad, but he told them if they did not stop that kind of business he would get out. Q. Who do you mean by them ? A. Mosher and Outcalt [the cashier]; and he said one of them swore very badly and used bad language, and he said particularly Mosher, and at this time I said that the Doctor has gone to see Mosher about it, and he said if he has not gone you tell him to go to Outcalt, because he can get the truth out of Outcalt better than Mosher. And I said, Professor, [Stuart] what is the condition of the bank ? Why is it closed ? He says I have known for quite a while they had some bad debts, such as very poor paper there, amounting to about $136,000, and he says, I did not like the way they were doing. They could not do outside business and that too, and I did not like it. And, of course, anybody who knows Professor Stuart knows that would not be the way of his doing business, and he said he was in hopes they would tide it over, and he said they had some very poor paper, and he spoke of some land in a different county, and at that Mrs. Stuart came in, and he says, you know I have sold out — which I had not known — and he said, well, he had traded his stock for the Gruetter building a short time before. At this juncture Mrs. Stuart came into the room, and she says, ‘ It don’t let you out from being responsible, does it? How long has it been?’ Oh, no, he says, and then he spoke about the board of directors.” Being asked to state any further conversation she had with Stuart the same morning in reference to the bank and its condition, the witness proceeded : “ He went on and told me 12 OCTOBER TERM, 1897. Opinion of the Court. about it, he said he had not liked the management of the bank, and felt anxious about it, and I asked him how long, and he said a long time; and he went on and repeated again what he said before about going off into side business and said he did not like their not being able to declare a dividend, and I asked him this question. I asked him why the bank was not closed in the condition it was, and asked him if he did not know that the bank’s capital was impaired, and he said that it was : still he did not know he said about having the bank closed. And I asked if the bank had been closed we could have gotten something out of the bank, and he said he was in hopes they could tide it over, and Mrs. Stuart says, Professor, you did not expect this so soon.” Henry Gerner, a witness for the plaintiff, and a stockholder in the bank, stated that he had a conversation with Stuart before the failure of the bank as to the sale of his stock to Gruetter & doers. Being asked to state that conversation, he said: “Well, one afternoon I met the Professor, which was an almost daily occurrence, if I did not see him in the bank I met him on the street, and we passed the compliments of the day and some remarks, and one day in one of our conversations and talks he told me that, he was contemplating making a real estate deal. I said ‘ yes,’ ‘ yes ’ he says he had a proposition made him to purchase the Gruetter block down here, and it was a trade, and he said if he made the trade at all, it would be trading his bank stock and some money and assuming their liabilities, their obligations, a mortgage on the building for $30,000. I told him I thought it was rather an exorbitant price for the property ; that I did not consider the building worth any such money, to which he responded that they were going to make a very good lease ; they would take it for ten years — a ten years’ lease on the premises at a rental of $6000 a year. I told him I did not think it was possible for those men in the business to pay any such rent, it was too risky. Well, the Professor replied, we have to take some risk. Well, I said, I should rather, if I was in your place, hold my stock and my interest in the bank. I think it is better or STUART v. HAYDEN. 13 Opinion of the Court. safer. He said he did not like the way they were doing business, he did not like the style, and a large share of the bank’s capital was tied up in real estate and there was no prospect of dividends, and he preferred to do his own business and manage his own affairs. That is all there was to that conversation. Q. Did you have any subsequent conversation with him about the matter? A. Well, yes. 1 guess it was after he made the trade, either he told me about it or I took occasion to remark, I see you made that trade, Professor. Yes, he says, I did; he says, as I told you before I don’t like Mosher and Outcalt’s ways of doing business, and I shall prefer to manage my own affairs hereafter. Q. Did he, in any conversation you had with him, say anything about the amount of the capital stock of the bank that was tied up in real estate? A. Yes, some 130 or 140 thousand dollars, about 140,000 he said was tied up. Q. Do you remember about the time when the last dividend of the bank was returned ? A. It was a dividend of four per cent declared in July, 1892; that is the last dividend I was credited with. Q. Did you have any talk with the respondent, A. P. 8. Stuart, as to whether a dividend would be returned the first of January, 1893, or for the close of the year 1892 ? A. Well, only this, the Professor told me that in all probability there would be no dividend declared in January, owing to the fact that a large amount of the bank’s capital was tied up in real estate, and until the amount was reduced and property converted into cash the bank could not pay any dividend.” His cross-examination was as follows: “Q. You say, Mr. Gerner, that he said he did not like the way that Mosher and Outcalt did the business. Did he give you in detail the management of that business he objected to, or was that the sum total of his remarks, that he did not like the way they did business ? A. He says, oh, yes, he made comments on Mosher’s being in so many things and having so many irons in the fire and paying too much attention to outside matters. As to Outcalt, I do not know whether the Professor made any comments on his conduct or not. Q. And the reason he gave you at that time for getting out was because he wanted 14 OCTOBER TERM, 1897. Opinion of the Court. to manage his own business, and he did not like the way they managed the business ? A. He did not like the way they conducted the business.” Without referring to other facts and circumstances disclosed by the record, it is sufficient to say that the Circuit Court was justified by the evidence in finding that Stuart, with knowledge of the insolvency of the bank, or at all events with such knowledge of facts as reasonably justified the belief that insolvency existed or was impending, sold and transferred his stock with the intent to escape the individual liability which the statute imposed upon shareholders of national banks for their contracts, debts and engagements. And the bank having been, in fact, insolvent at the time of the transfer of his stock — which fact is not disputed — he remained, notwithstanding such transfer, and as between the receiver and himself, a shareholder, subject to the individual liability imposed by section 5151. We will add, that as the Circuit Court and the Circuit Court of Appeals agreed as to what were the ultimate facts established by the evidence, this court should accept their view as to the facts unless it clearly appeared that they erred as to the effect of the evidence. Mor ewood v. Enequist, 23 How. 491; The Ship Marcellus, 1 Black, 414, 417; Dravo v. Fabel, 132 U. S. 487, 490; Compania de Navigation v. Brauer, 168 U. S. 104, 123. In reference to the appeal by Gruetter & Joers but little need be said. The Circuit Court of Appeals correctly held that the cross-bill of Gruetter & Joers attempted to bring into this suit a new and independent controversy, in which the receiver of the bank had no interest, and which could be determined upon facts not material to the issue between the original plaintiff and Stuart. The Circuit Court of Appeals also held the cross suit to be objectionable upon additional and, we think, entirely sufficient grounds. Judge Sanborn, speaking for that court, said: “ The supposed crossbill utterly fails to state a case for rescission, because it does not show that Gruetter & Joers ever returned to Stuart the nineteen thousand five hundred dollars in cash which they received from this trade, or that they ever released Stuart STUART v. HAYDEN. 15 Opinion of the Court. from his agreement to pay the mortgage of thirty thousand dollars upon the property they conveyed. They could not rescind this trade and recover back that which they gave in exchange, or any part of it, while they retained at least forty-nine thousand five hundred dollars in value that they had received from it. The proof, if it were possible, is more fatal to them than the pleading. The record discloses the fact that they made their election and chose to affirmatively ratify this transaction more than a year before they filed this bill for its rescission. It shows that on January 23, 1893, they brought an action at law against Stuart in one of the courts in the State of Nebraska to recover of him damages to the amount of eighteen thousand dollars for his fraudulent misrepresentation of the value of this stock at the time of the trade. This was in effect an action for a part of the purchase price of the real estate which they had conveyed, although it was in form an action for deceit. It could be brought and maintained on the ground that the sale or trade of the real estate was valid and its title was vested in Stuart, and on no other theory. That suit is still pending. It was a distinct and affirmative ratification of the transfer of this stock and the conveyance of the real estate, after full knowledge of all the facts, and it barred Gruetter & Joers of all right to rescind the trade thereafter. The result is that all that portion of the decree which grants to Gruetter & Joers any relief against the appellant Stuart was wrong:.” The decree of the Court of Appeals is affirmed, hut without prejudice to the prosecution of any claim that Gruetter & Joers may have against Stuart arising out of the transactions between them. 16 OCTOBER TERM, 1897. Statement of the Case. UNITED STATES v. PASSAVANT. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 129. Argued December 1, 1897. — Decided January 3, 1898. In proceedings brought before the board of general appraisers by protests under § 14 of the Customs Administrative Act of June 10, 1890, c. 407, 26 Stat. 131, to review decisions of a collector of customs upon entries, the board has jurisdiction to inquire into and impeach the dutiable valuation reported to the collector by the appraiser upon which the collector assessed the rate of duty to which the merchandise was subject. The “ German duty,” which is a tax imposed by the German Government on merchandise when sold by manufacturers for consumption or sale in the markets of Germany, but is remitted by that Government when the goods are purchased in bond or consigned while in bond for exportation to a foreign country, was lawfully included by the appraiser in his estimate of the dutiable value of the importation in question in this case. This case came to this court on the following certificate from the United States Circuit Court of Appeals for the Second Circuit: “ A judgment or decree of the Circuit Court of the United States for the Southern District of New York having been made and entered on the 30th day of January, 1895, by which it was ordered, adjudged and decreed that there is no error in certain proceedings before the board of United States general appraisers in this cause, and that their decision therein be, and the same hereby is, in all things affirmed ; and an appeal having been taken from said judgment or decree to this court by the above-named appellants, and the cause having come on for hearing and argument in this court, certain questions of law arose concerning which this court desires the instructions of the Supreme Court of the United States for the proper decision of said cause. “ The facts from which said questions arise are herewith submitted and certified as follows : “ 1. Certain merchandise, consisting of cotton velvets, was imported from the empire of Germany into the port of New UNITED STATES v. PASSAVANT. 17 Statement of the Case. York by the appellees in various steamers between May 22, 1891, and March 13, 1892, and was entered at the custom house and appraised by the appraiser. “ 2. The merchandise was originally imported into Germany in the gray, and was subjected to processes of dyeing and finishing, and was put in bond in that country. “ 3. The collector classified the merchandise for duty under paragraph 350 of the tariff act of October 1, 1890, at 20 per centum ad valorem and 14 cents per square yard, and assessed the said rates of duty upon the dutiable value of the merchandise decided by the appraiser and reported by him to the collector. “ 4. The merchandise was of a description provided for eo nomine in said paragraph 350, and was properly classified for duty under that section. “ 5. The invoices stated certain prices as the net invoice value of this merchandise. The invoices stated also certain additional sums, under the heading ‘ German duty.’ “ 6. This German duty is a tax which is imposed by the German Government on the merchandise when it is sold by the manufacturers thereof for consumption or sale in the markets of Germany, but when the merchandise is purchased in bond, or consigned while in bond, for exportation to a foreign country, this duty is remitted by the German Government, and is called 4 bonification of tax,’ as distinguished from being refunded as a rebate. “ 7. This German duty or tax is the amount of the duty levied by the German tariff upon the goods when consumed in Germany. It is collected when the finished product goes into consumption in Germany, but is remitted when the finished product is sold in bond for exportation. “ 8. The merchandise can be purchased in bond for exportation in the principal markets of Germany at the net invoice prices and without paying the so-called German duty. The merchandise involved in this action was so ^purchased for exportation. “ 9. In estimating and appraising the actual market value and wholesale price of such merchandise at the time of ex- VOL. CL XIX—2 18 OCTOBER TERM, 1897. Statement of the Case. portation to the United States in the principal markets of the country from whence imported, the appraiser decided that the dutiable value of such merchandise equalled the sum of the net invoice value and the German duty added together, and reported to the collector this decision as to the dutiable value of the merchandise appraised. “ 10. In estimating this dutiable value the local appraiser added as an element of dutiable value to the net invoice value these amounts specified in the invoices and entries under the name of ‘ German duty.’ Such amounts have been included by the importers in their entries under duress, to avoid threatened penalties under the law. “11. The importers did not call for any reappraisement of the merchandise, but within ten days after the liquidation by the collector of each entry, and the assessment by him of the rates of duty aforesaid upon the dutiable valuation so reported to him by the appraiser, filed protests under section 14 of the act of June 10, 1890, against the decisions of the collector, of wrhich the following protest is one, to which the others are similar: [Here followed the protest.] “ 12. The board of United States general appraisers, acting upon said protests, reversed the decisions of the collector on the ground that the so-called German duty was not a lawful element of dutiable value. “ 13. Thereupon the collector applied to the Circuit Court of the United States for the Southern District of New York by petition praying for review of said decision by the board, pursuant to section 15 of the act of June 10, 1890, and the said Circuit Court upon said petition ordered the board of United States general appraisers to return to the Circuit Court the record and the evidence taken by them, together with a certified statement of the facts involved in the case and their decision thereon, and the said board of general appraisers thereafter made such return; and the Circuit Court affirmed the decision of the board as aforesaid. “ 14. It is admitted that Frederick S. Passavant, Karl Kotzenberg, William Sandhagen, Heinrich Meyer, Arthur W. UNITED STATES v. PASSAVANT. 19 Opinion of the Court. Watson and Oscar Passavant, the importers, are the persons composing the firm of Passavant & Company. “Upon the foregoing facts this court, for the proper decision of said cause, desires instruction upon the questions of law following: “(1) In proceedings brought before the board of general appraisers by protests, under section fourteen (14) of the act of June 10, 1890, to review the collector’s decisions upon the entries in this case, had the board jurisdiction to inquire into and impeach the dutiable valuation so reported to the collector by the appraiser, as above stated, and upon which the collector assessed the rate of duty to which the merchandise was law-fully subject ? “(2) If the first question is answered in the affirmative, was the ‘ German duty ’ lawfully included by the appraiser in his estimate of dutiable value ? ” Mr. Solicitor General for the United States. Mr. Edwin B. Smith for Passavant. Mr. Chief Justice Fuller, after stating the case as above, delivered the opinion of the court. The thirteenth section of the Customs Administrative Act of June 10, 1890, c. 407, 26 Stat. 131, relates solely to the appraisement of imported merchandise, and declares that the decision of the board of general appraisers, when invoked as provided, “ shall be final and conclusive as to the dutiable value of. such merchandise,” and directs the collector to ascertain, fix and liquidate the rate and amount of duties to be paid on such merchandise, and the dutiable costs and charges thereon. Section 14 provides that the decision of the collector as to the “ rate and amount of duties, . . . including all dutiable costs and charges, and as to all fees and exactions of whatever character, except duties on tonnage, shall be final and conclusive,” unless the importer protests and appeals to 20 OCTOBER TERM, 1897. Opinion of the Court. the board of general appraisers. This section clearly allows and provides for an appeal by the importer from the decision of the collector, as to both rate and amount of duties, as well as dutiable costs and charges, and as to all fees and exactions. By section .15 it is provided that “ if the importer, . . . or the collector . . . shall be dissatisfied with the decision of the board of general appraisers, as provided for in section 14 of this act, as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, they or either of them, may . . . apply to the Circuit Court . . . for review of the questions of law and fact involved in such decision.” In United States v. Klingenberg, 153 U. S. 93, 102, it was said by Mr. Justice Jackson, speaking for the court: “The right of review by the Circuit Court is coextensive with the right of appeal to the board, as to all matters except the dutiable value of the imported merchandise, as to which the decision of the board of general appraisers is by section 13 made conclusive. Now, by section 14 of the act, if the decision of the collector imposes an excessive amount of duties, under an improper construction of the law, the importer may take an appeal to the board of general appraisers, whose decision on such questions is not made conclusive as it is in respect of the dutiable value of the merchandise, and not being conclusive, it is subject to review under the express provisions of section 15.” The purpose of section 13 is to afford the importer or collector the right to call for a reappraisement by a general appraiser or a board of general appraisers, to review the decision of the local appraiser or a general appraiser as to the correct amount of the dutiable value of the merchandise, and is distinct and separate from the remedy by protest. Under section 7 the collector is to determine for himself the question of what is the invoice value of the goods, and, in doing this, he may add such charges as he considers to be dutiable, but his decision in this respect is not in the nature of an appraisement, and may be attacked by protest. And UNITED STATES v. PASSAVANT. 21 Opinion of the Court. while the general rule is that the valuation is conclusive upon all parties, nevertheless the appraisement is subject to be impeached where the appraiser or collector has proceeded on a wrong principle contrary to law or has transcended the powers conferred by statute. Oberteuffer v. Robertson, 116 U. S. 499 ; Badger n. Cusimano, 130 U. S. 39; Robertson v. Frank Brothers Company, 132 U. S. 17; Erhardt v. Schroeder, 155 U. S. 124; Closer v. Mag one, 155 U. S. 240. These decisions were made under prior similar legislation as to the finality of the appraisement, and when an action against the collector was provided by section 3011 of the Revised Statutes as the remedy for an illegal exaction of duties. Section 3011 was repealed by the act of June 10, 1890, and in Schoenfeld v. Hendricks, 152 U. S. 691, it was held that such an action could not be maintained, as it was not authorized by statute, and would not lie at common law because the money was required to be paid into the Treasury by section 3010 ; so that the importers were remitted, to the remedies provided in the latter act. Whether the dutiable value in this case was erroneously increased by the unauthorized addition of an independent item to the market value, as asserted by the importers, was a question of law, and properly carried to the board of general appraisers by protest and appeal. We think that section 14 furnishes the means of redress for illegal action, and that the board of general appraisers has the same power under this section to inquire into the legality of an assessment as it has under section 13 to see whether or not the valuation is excessive or insufficient through an error of judgment. The first question must, therefore, be answered in the affirmative. By section 19 of the act it is provided “ that whenever imported merchandise is subject to an ad valorem rate of duty, or to a duty based upon or regulated in any manner by the value thereof, the duty shall be assessed upon the actual market value or wholesale price of such merchandise as bought and sold in usual wholesale quantities, at the time of 22 OCTOBER TERM, 1897. Opinion of the Court. exportation to the United States, in the principal markets of the country from whence imported, and in the condition in which such merchandise is there bought and sold for exportation to the United States, or consigned to the United States for sale, including the value of all cartons, cases, crates, boxes, sacks and coverings of any kind, and all other costs, charges and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States, . . . ” By section 10 it is made the duty of the appraisers “ by all reasonable ways and means in his or their power to ascertain, estimate and appraise (any invoice or affidavit thereto or statement of cost or of cost of production to the contrary notwithstanding) the actual market value and wholesale price of the merchandise at the time of exportation. to the United States, in the principal markets of the country whence the same has been imported, and the number of yards, parcels or quantities, and actual market value or wholesale price of every of them, as the case may require.” Was the action of the appraiser lawful in treating the so-called German duty as an element of value in determining the actual market value or wholesale price of these cotton velvets, at the time of exportation, in the principal markets of Germany ? What was to be ascertained was the actual market value or wholesale price of the merchandise as bought and sold in usual wholesale quantities at the time of exportation, in the principal markets of the country from whence imported. This market value or price was the price in Germany and not the price after leaving that country, and the act does not contemplate two prices or two market values. The certificate of facts states that the German duty is imposed on merchandise when “ sold by the manufacturers thereof for consumption or sale in the markets of Germany and “is collected when the finished product goes into consumption in Germany.” As the tax accrues when the manufacturer sells, his wholesale price includes it, and the purchaser who buys these cotton velvets in wholesale quantities in the German markets pays a price covering the tax, UNITED STATES v. PASSAVANT. 23 Opinion of the Court. and that is the price for the merchandise when bought and sold in those markets. Doubtless, to encourage exportation and the introduction of German goods into other markets, the German Government could remit or refund the tax, pay a bonus, or allow a drawback. And it is found that in respect of these goods when “ purchased in bond, or consigned while in bond, for exportation to a foreign country, this duty is remitted by the German Government, and is called ‘ bonification of tax,’ as distinguished from being refunded as a rebate.” The use of the word “ bonification ” does not change the character of this remission. It is a special advantage extended by government in aid of manufactures and trade, having the same effect as a bonus or drawback. To use one of the definitions of drawback, it is “ a device resorted to for enabling a commodity affected by taxes to be exported and sold in the foreign market on the same terms as if it had not been taxed at all.” But the laws of this country in the assessment of duties proceed upon the market value in the exporting country and not upon that market value less subh remission or amelioration as that country chooses to allow in accordance with its own views of public policy. Muser v. Mag one, 155 U. S. 240, is quite in point. In that case the appraisement was attacked on the ground that certain items or elements of value had been illegally added to and included in the dutiable value. The imported goods were cotton embroideries. The cloth was purchased in the gray by the importers at Manchester; sent to St. Gall, Switzerland, where the embroideries were finished; and thence exported to the United States. The importers owned the plant at St. Gall. The entered value of the goods was raised by the appraisers, and the importers protested for the reasons that commissions and non-dutiable charges had been illegally included in the market value; that the goods should have been appraised at their actual market value when in the gray, adding the cost of finishing and laundering them ; and on other grounds; the protest being particularly directed to the 24 OCTOBER TERM, 1897. Opinion of the Court. alleged illegality of the valuation because one of the constituent elements of the value as found was illegally included. The appraisement was held conclusive in the absence of fraud, and this court, among other things, said: “ The question was not whether through the special advantages which Muser Brothers enjoyed, the actual cost to them may have been less than what was decided to be the actual dutiable value of their goods, for the latter was determined by the general market value and wholesale price of all goods of the same description. . . . “ The issue made by the protest was that the valuation was illegal because including certain specified incidental expenses, (one or more of them,) as for designs, salary of buyer, clerk hire, rent, interest and percentage on aggregate cost. Upon the theory of an ascertainable market value at St. Gall, these were matters to be considered and in a sense included, but not in the sense of substantive items independent of market value, added thereto to make dutiable value. . . . The course of business at St. Gall in respect of these embroideries was peculiar, and to reach a result, in estimating the value, required the consideration of many elements making up the amount which actually represented the pecuniary basis of transactions. How these various elements impressed the general appraiser, and what grounds influenced or controlled his mental processes, were matters in respect of "which he could not be interrogated, since his decision, when approved by the collector, was final and could not be reviewed and the verdict of a jury substituted. . . . The adjudication was of true market value, and did not consist in taking market value and adding the cost and charges specified in section 2907 in order to get at dutiable value.” United States v. Kemvorthy, 28 U. S. App. 450. As the question in this case was what, was the general market value and wholesale price of cotton velvets, as bought and sold in the principal markets of Germany, the fact that the German duty was not in fact paid on such goods when exported is immaterial. Exoneration from its payment was a mere special advantage extended by the German Govern- UNITED STATES v. PASSAVANT. 25 Dissenting Opinion: Brown, Peckham, JJ. ment, as we have said, in promotion of manufactures and commerce. The appraiser found, as matter of fact, that the market value in Germany was equal to the invoice price plus the home duty, but he did not therefore include that item as a substantive item independent of the market value, and add it thereto to make dutiable value, though in ascertaining the market value in Germany he properly recognized the fact that that duty formed part of the purchase price in the markets of that country. The second question must also be answered in the affirmative. The answers indicated above will be so certified. Mr. Justice Brown, with whom concurred Mr. Justice Peckham, dissenting. I concur in the opinion of the court that the first question requires an affirmative answer, but I think that the second question should be answered in the negative. In estimating the dutiable value of goods the collector added to the net invoice value what is known as the German duty, which was never paid, and which formed no part of the “ market value or wholesale price” of these goods. It does not appear what proportion of this class of goods was imported into Germany for exportation, as distinguished from those imported for consumption, but it clearly appears that there were two entirely distinct and separate prices: one of which was paid for the goods for exportation, and the other for consumption. It seems a great hardship that the defendants, Passavant & Company, should be charged with a price which they did not pay and which was no part of the value of the goods as they were purchased by them in Germany. If there be, in fact, two wholesale prices for these goods in the same markets, I know of no reason why the collector should not recognize this fact and charge the importer with that one of the wholesale prices which he actually paid, and for which others under the same circumstances could obtain the goods. The construction given to the statute by the court is unneces- 26 OCTOBER TERM, 189T. Syllabus. sary, and the effect is to increase the cost of the article to the consumer by adding to the price the amount of a tax in fact not paid by the importer. For aught that appears in this record, the sales for exportation may have been ten times as great as those for domestic consumption, and we do not understand why the prices realized in the latter sales should be arbitrarily selected by the Government as the actual market value or wholesale price of the articles. HETZEL v. BALTIMORE & OHIO RAILROAD COMPANY. ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 110. Argued November 9,1897. —Decided January 3,1898. This was an action to recover damages for injury done to certain land in the city of Washington by reason of the illegal occupation by a railroad company of the street on which the land abutted. The land constituted original lot one in square 630, and long prior to the action it had been subdivided between the owners, and a plat thereof recorded. In the partition it was provided that the alleys marked on the plat were exclusively for the sole benefit and use of the sub-lots, should be private and under the control of all owners of property thereon, and that, except as provided, could not be closed unless by common consent. Before the action was brought the plaintiff' had become the owner of the fee of all the sub-lots constituting original lot one. Held, (1) If the plaintiff did not own all of original lot one, she was entitled to recover damages for any injury done to such part of it as she did own; (2) The plaintiff, being the owner of all the sub-lots, was entitled, under the deed, to close the alleys altogether; and therefore it was error to instruct the jury that she could not have conveyed a good title to the land marked on the plat as alleys ; (3) The plaintiff was entitled to recover such damages as were equivalent to or would fairly compensate her for the injury done to her land by the defendant. Absolute certainty as to damages in such cases is impossible. All that the law requires is that such damages be allowed as, in the judgment of fair men, directly and naturally resulted from the injury for which suit is brought. What the plaintiff was entitled to was reasonable compensation for the wrongs done to her. HETZEL v. BALTIMORE & OHIO RAILROAD. 27 Opinion of the Court. The case is stated in the opinion. J/r. Frank IK. Hackett and Mr. Walter D. Davidge for plaintiff in error. Mr. George E. Hamilton for defendant in error. Mr. M. J. Colbert was on his brief. Mr. Justice Harlan delivered the opinion of the court. This action was brought by the plaintiff in error to recover damages alleged to have been sustained in consequence of the unlawful obstruction by the defendant in error of D street in the city of Washington. The jury having been instructed that the plaintiff could not recover anything more than nominal damages, returned a verdict for one cent; and for that amount judgment was entered in her favor, but without costs. And that judgment was affirmed in the Court of Appeals of the District. The declaration alleged that the plaintiff was seized in fee of a certain lot of land on the corner of D and North Capitol streets in the city of Washington, “being lot numbered one, in square six hundred and thirty;” and that the defendant on the 24th day of April, 1873, and thereafter at divers other times, had wrongfully, unlawfully and injuriously obstructed that street, by placing thereon freight cars, in large numbers, and suffering the same to remain unreasonably long ; by loading and unloading freight in the street; by using the street for the general purposes of a freight yard; by blocking the way with wagons and carts for the loading and unloading of freight — the result being that the plaintiff, as well as the public, was prevented from passing and repassing on D street, and more particularly from using that portion of it on which plaintiff’s lot abuts to gain access to or exit from her land; and that the defendant still obstructs the street in the manner stated, whereby it has “ materially and seriously diminished the value of said land and prevented the plaintiff from selling the same, though she tried so to do.” 28 OCTOBER TERM, 1897. Opinion of the Court. The plaintiff brought a suit in April, 1873, to recover damages for this obstruction, and obtained a judgment, which was paid. The present suit covers the period of three years from April, 1873. The declaration in the two suits was the same, except that in the present action the declaration contains the additional words “ and prevented the plaintiff from selling the same, though she tried so to do.” In the present action the defendant pleaded : 1. Not guilty. 2. That the plaintiff’s alleged cause of action did not accrue within three years before the institution of this suit. 3. That the plaintiff ought not to have or maintain her suit, because at a former term of the court she recovered judgment against the defendant in the sum of $843.86 in a suit at law for the same identical cause of action, which judgment was satisfied. Upon these pleas issue was joined in the usual form. The bill of exceptions states that it was undisputed that the plaintiff owned unimproved land at the corner of D street northwest and North Capitol street in the city of Washington; that along the side of her premises, about where the sidewalk would be, the defendant maintained and used a railroad track for receiving and delivering freight; that the track stopped on D street, being a siding ; that the street was occupied by freight cars on the track, and carts were backed against the cars, so that access to the plaintiff’s premises on the street was destroyed. It was conceded that the track was maintained on the street without authority of law. At the trial below the plaintiff testified that she owned the entire lot numbered one, in square 630; was joint owner with Judge Wylie in some 28,000 feet, but became sole owner in 1872; had not used the land since January, 1870, it being impossible to get upon it; had tried to sell it, but without success, persons wishing to buy saying that the position of the railroad rendered it useless to them; that there was no access to the land from D street except on foot; that the occupancy of the street by freight cars and the loading and unloading of freight was continuous during the entire period covered by HETZEL v. BALTIMORE & OHIO BAILROAD. 29 Opinion of the Court. the present suit; that during this period she made every possible effort to sell the land, having instructed real estate agents to sell or get an offer for purchase. She testified that the property was directed to be sold in any way that the agents could sell it, “ to sell it or lease it or in any way to get people to build upon it; ” and that she authorized its sale, as one lot, but “never confined them to selling the whole.” On cross-examination she said: “ Of course, I gave them the whole lot to sell, but I did not forbid them to sell any part, and my instructions were to make some disposition of it, so that it could be utilized in some way; to lease it or sell it, in whole or in part, or in any way. I always told them I wanted to sell or lease the whole or any part of it, in order to get buildings put up on the front of it.” The plaintiff introduced the testimony of certain real estate agents who had been authorized to sell the property, to the effect that the street was obstructed; that they took persons there to buy, who objected to purchasing because of the D street track; that they could readily have sold the lot for a certain price per foot, but for the obstruction of the track. She also produced the evidence “ of experts as to the value of the land with the D street track there and with that track removed.” It further appeared that an offer made for a part of the lot on the corner of D street was declined by the plaintiff because she did not choose to sell off a part, and two persons who had been authorized as agents to sell the property testified that they were instructed to sell lot one as an entirety, and were not permitted to sell in parcels. The defendant put in evidence the record of conveyances disclosing the title, and tending to prove that the plaintiff and Judge Wylie had owned as tenants in common since 1855 all of original lot one except 35 feet 10 inches by a depth of 120 feet, which the latter owned in severalty; and that in December, 1871, they subdivided their holding into lots numbered from 1 to 11, with alleys, according to a plat dated January, 1872, which was put in evidence. The plat here referred to was as follows: 30 OCTOBER TERM, 1897. Opinion of the Court. Upon this plat were recorded the following words: “This is to certify that we have subdivided that part of lot 1 in square No. 630, owned jointly by us, into the lots as.laid down in the above plat as lots 1 to 11, both inclusive, with the alleys for their accommodation, which alleys are exclusively for the sole benefit and use of said lots.” At the time of this subdivision Judge Wylie and the plaintiff executed a deed of partition which gave sub-lots 1 to 5 inclusive in severalty to the plaintiff, and sub-lots from 6 to 11 inclusive to Judge Wylie in severalty, but did not convey the fee in the alleys. In January, 1872, Wylie conveyed to Tyler, and Tyler to the plaintiff, sub-lots 6 to 11 and that portion of original lot one (35 feet 10 inches front) just mentioned as not having been held by plaintiff and Wylie in common, but did not convey the alleys as such. Those deeds read: “ Lots 6, 7, 8, 9,10,11, being subdivisions of lot one, in square HETZEL v. BALTIMORE & OHIO RAILROAD. 31 Opinion of the Court. No. six hundred and thirty, on the ground plan of said city, according to the metes and bounds, covenants and conditions set forth and described in the deed of partition, dated December 28,1871, entered into by and between Andrew Wylie and Mary C. his wife, and the said Margaret Hetzel, and recorded, with plat of subdivision annexed thereto; . . . also all that part of said lot one in said square No. six hundred and thirty, at the northeast corner thereof, fronting on North Capitol street thirty-five feet and ten inches by a depth of one hundred twenty feet, together with all the improvements, ways, easements, rights, privileges and appurtenances to the same belonging or in anywise appertaining, and all the remainders, reversions, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the said party of the first part of, in, to or out of the said piece or parcel of land and premises.” The partition deed above referred to contained the following among other clauses: “ And the said parties Andrew Wylie and Margaret Hetzel do and each of them doth hereby mutually covenant and agree to and with each other as follows : That the said Margaret Hetzel, her heirs and assigns, shall have the right to erect any structure or building from lot number one on D street north over or across the alley entering from that street on condition that an open space of ten feet in width and twelve feet in height shall at all times be kept clear for ingress and egress for the use of the other lots in the rear bounding on the alleys and area as designated in said plan. Also that the said Andrew Wylie, his heirs and assigns, being owner or owners of lots eight, nine and eleven in said plan, and of the above-mentioned part of said lot one in said square not embraced in this partition, but owned at present by the said Wylie as his own individual property, fronting 35|| feet on North Capitol street by 120 in depth, may at any time in their discretion close the ten-foot alley running northward from the main area in the rear of lots eight and nine. Also that the owner or owners of lots four and five shall have the like privilege to close the five-foot 32 OCTOBER TERM, 1897. Opinion of the Court. alley along the rear of lot five and part of lot six so far as the main area aforesaid. Also that all these alleys and area shall be private and to be under the control of all owners of property touching thereon, and except as hereinbefore otherwise provided shall never be closed unless by common consent, and the owners thereof and of each of said lots shall at all times contribute their and each of their joint and equitable proportions of all proper and necessary charges for paving the said alleys and area and keeping the same in proper condition by means of drains, sewers or otherwise, and the same are to be for the exclusive use of said owners. And the parties hereto have annexed to this deed and made it part of the same for illustration and reference, a copy of the aforesaid plan of their subdivision. In testimony whereof,” etc. The railroad company also introduced testimony tending to prove that since 1872 the property had been assessed for taxes and that taxes were paid upon it as subdivided into lots from 1 to 11. This is substantially all the evidence set forth in the bill of exceptions. The plaintiff presented several requests for instruction, among which were the following: “ The jury are instructed that if they shall find that the property in question was rendered unsalable by reason of the alleged nuisance, and, further, that the plaintiff in good faith was trying to sell it, an allowable method for them to estimate the measure of damages is to ascertain what the plaintiff might have obtained for the property with the obstruction there and what she might have obtained for it with the obstruction removed, and allow her the legal rate of interest — that is, six per cent — on the difference for so long a period, not exceeding three years, as the jury shall be satisfied that she was so continuing her efforts to sell it. “ If you shall find for the plaintiff, then having ascertained a sum you think would on the 24th day of April, 1876, have compensated the plaintiff, you are allowed in your discretion to add interest, not exceeding six per centum, upon that sum from that date, provided you shall think that such sum with- HETZEL v. BALTIMORE & OHIO RAILROAD. 33 Opinion of the Court. out interest is not a fair compensation for all the loss you find that the plaintiff has sustained. “ If the jury shall find that the defendant so obstructed the access to and egress from the plaintiff’s land that she could not use the same as such property is generally used, then the jury are at liberty to allow such damages as they shall find have resulted from the act of the defendant, irrespective of any attempt made by the plaintiff to sell the same.” Each of these instructions was refused, and to that action of the court the plaintiff at the time duly excepted. Thereupon, the bill of exceptions states,“ the court instructed the jury that the plaintiff offered her property for sale as a whole, and undertook to sell it as lot one ; that the action was for damages for her not being able to sell lot one ; that the testimony showed that even if she had received an offer for lot one she could not consummate the sale, because she did not own the fee in the alleys. This being so, and the defendant’s counsel conceding that the structure was illegal, the court instructed the jury that the plaintiff could not recover anything more than nominal damages, and thereupon instructed the jury to find for the plaintiff for one cent damages, which was done.” 1. In the opinion of the Court of Appeals it is said that there was not a particle of evidence in the record as to the salable or rental value of the land without reference to the existence of the nuisance complained of, and that such facts were essential to be ascertained in order to furnish a basis for estimating the damages. It is clear however that there was evidence before the jury “as to the value of the land with the D street track thereon and with that track removed.” It is so expressly stated in the bill of exceptions. The amounts given by the witnesses when testifying as to value were not set out in the bill of exceptions for the reason, we infer, that the real contest was as to questions of law arising upon the instructions asked by the plaintiff and the ruling of the court that the plaintiff could recover only nominal damages. The bill of exceptions was evidently prepared with reference to those questions. It must, therefore, be assumed, upon the VOL. CLXIX—3 34 OCTOBER TERM, 1897. Opinion of the Court. record, that there was evidence as to value upon which the plaintiff was entitled to go to the jury, unless she was precluded by some principle of law from recovering anything more than nominal damages. 2. The Court of Appeals, after observing that the instructions asked by the plaintiff were founded upon the assumption of injury to her in respect of all the lots contained in the subdivision of original lot one, and did not propound any proper or exact rule for estimating damages, said: “ But, apart from all this, the evidence upon which the prayers were founded showed a state of case quite different from that set out in the declaration. It is not upon the evidence alone, but upon the pleadings and the evidence applicable to the pleadings, that the plaintiff can in any case recover, and the one must consist with the other. The declaration here, as we have seen, proceeds as for an injury to the entire original lot, without any reference or respect to the subdivision of that lot, and that the lots made of the subdivision are separate and distinct parcels of ground, fully recognized and provided for by law; and entirely ignores the fact that the plaintiff never was in reality seized in severalty of the original lot one, as it existed before the subdivision, and as declared upon in the declaration. The proof produced by the defendant, showing how lot one was originally held, and how it had been subdivided and partitioned, and how title to all the lots was acquired by the plaintiff, and their relation to each other and the streets upon which they abut, entirely negatives and refutes the case presented in the declaration, and the right of the plaintiff to recover thereon.” Undoubtedly, the declaration claims damages for the injury done to the entire original lot numbered one in square six hundred and thirty. It appears that when this action was brought the plaintiff owned all the sub-lots which, with the alleys as marked on the plat of 1872, constituted original lot one. If the railroad company, by its illegal use of D street, had done injury to the land, or any part thereof, within the exterior boundaries of original lot one, we are unable to perceive why damages might not be recovered in this action HETZEL v. BALTIMORE & OHIO RAILROAD. 35 Opinion of the Court. with respect to such part as, in fact, the plaintiff owned, although she may have claimed to own more than belonged to her. In estimating the damages, the jury could take into consideration the subdivision of original lot one, and eliminate from their calculation any sub-lot belonging to the plaintiff that was not damaged in salable or rental value by the nuisance in question. So, if the plaintiff did not own the alleys marked on the plat, that fact could be given proper weight in estimating the damages she was entitled to recover; that is, if damages were claimed in respect of more land than belonged to the plaintiff, the recovery could have been limited to the injury done to the part that she did own. 3. The jury "were instructed that the testimony showed that the plaintiff offered her property for sale as a whole, and undertook to sell it as a whole. This was error, for the instruction implied that the plaintiff had not put her property on the market except as a whole; whereas the bill of exceptions shows that while there was evidence tending to prove that she wished or preferred to sell it as a whole, there was also evidence that the plaintiff authorized her land to be sold in parcels or as a whole, indeed, “ in any way.” 4. The jury were also erroneously instructed that the action was for damages by reason of the plaintiff not being able to sell lot one, and that, according to the testimony, “if she received an offer for lot one she could not consummate the sale because she did not own the fee in the alleys.” In the first place, the action was for damages for the injury done to the value of the plaintiff’s land, and the unnecessary recital in the declaration that she had tried to sell did not convert the action into one only for damages for not being able to consummate a particular sale. If the salable or rental value of the land was substantially or materially diminished by the defendant’s illegal use of D street, she would be entitled to recover without proving that, on a specific occasion, she tried to sell, but failed to effect a sale. In the second place, the plaintiff’s right to damages for material injury done to the land owned by her would not have been defeated even if it were true that she did not own the fee in the alleys. If the 36 OCTOBER TERM, 189T. Opinion of the Court. alleys had been dedicated to public use, so as to be beyond the control of those owning the abutting lots, plaintiff would nevertheless have been entitled to recover in this action for any substantial diminution in the value of her land, or of any part thereof, arising from the nuisance in question. Apart from this, we do not perceive why she might not have passed, by deed, the fee of the ground marked on the plat as alleys. By the Revised Statutes of the District of Columbia it is provided that “ the ways, alleys, or passages, laid out or expressed on any plat or subdivision, shall be and remain to the public, or subject to the uses declared by the person making such subdivision, at all times under the same police regulations as the alleys laid off by the Commissioners on division with the original proprietors.” Rev. Stat. D. C. § 480. What were the uses, in respect of these alleys, as declared by the persons who made the subdivision of lot one? Upon the plat of the subdivision it is declared that the alleys “ are exclusively for the sole benefit and use of said lots.” And the deed of partition between Wylie and Hetzel expressly provides that “ all these alleys and area shall be private and to be under the control of all owners of property thereon; ” that except as provided they “ shall never be closed unless by common consent,” and that “ the same are to be for the exclusive use of said owners.” Now, when the plaintiff became the owner of all the sub-lots of original lot one, is it to be doubted that she could have closed the alleys altogether and have conveyed a good title to all the land constituting the original lot one ? If this be so, it was error to instruct the jury that she could not have made a good title in fee to the entire original lot as one body of land, including the alleys on which the respective sub-lots abutted. 5. It results from what has been said that the trial court erred in instructing the jury that the plaintiff could recover nothing more than nominal damages. In our opinion, she was entitled to recover such damages as were equivalent to the injury done to her by the defendant’s inexcusable and persistent occupation and use of a public street in violation of law and in disregard of her rights as an owner of adjacent HETZEL v. BALTIMORE & OHIO RAILROAD. 37 Opinion of the Court. property. At the trial of the first case brought by the plaintiff against the railroad company on account of this nuisance, Judge Hagner instructed the jury that they might ascertain from the evidence what, in the absence of the D street track, would be the fair value of the property in its unimproved condition during the time covered by the declaration; and if they found that the property during that period remained in that condition by reason of the track maintained and used by the defendant, then they might allow such sum as was equal to six per cent interest on such value, if they believed that the loss of revenue was caused wholly by the track, or a lesser sum proportionate to the effect which the maintenance and the use of the track had in causing the lot to lie unproductive. This was substantially the proposition of law embodied in one of the instructions asked by the plaintiff. What was the plaintiff’s land reasonably worth, during the period covered by the declaration, if D street had not been occupied and used by the railroad company in the manner disclosed by the evidence ? In the absence of the defendant’s track was there a reasonable certainty that it could have been used or sold? If so, for what purpose could it have been profitably used, or for what sum could it have been sold ? Was it reasonably certain that neither the original lot nor any sub-lot could have been used or sold while the street was obstructed by the defendant’s track ? These were all proper inquiries by the jury in determining what damages were equivalent to, or would fairly compensate the plaintiff for, the injury done. Of course, in such inquiries, absolute certainty as to the damages sustained is in many cases impossible. All that the law requires is that such damages be allowed as, in the judgment of fair men, directly and naturally resulted from the injury for which suit is brought. This is the rule which obtains in civil actions for damages. They have their foundation in the idea of just compensation for wrongs done. In United States Trust Company v. O' Brien, 143 N. Y. 284, 287-289 — which was an action for damages for the breach of certain covenants contained in a lease — Mr. Justice Peck- 38 OCTOBER TERM, 1897. Opinion of the Court. ham, speaking for the Court of Appeals of New York, when a member of that court, said: “ It is clear, and so it has been held in many cases, that the rule of damages should not depend upon the form of the action. In all civil actions the law gives or endeavors to give a just indemnity for the wrong which has been done to the plaintiff, and whether the act was of the kind designated as a tort or one consisting of a breach of a contract, is on the question of damages an irrelevant inquiry. As was said by Rapallo, J., in Baker v. Drake, 53 N. Y. 211, 220, the inquiry is what is an adequate indemnity to the party injured, and the answer cannot be affected by the form of the action in which he seeks his remedy.” Again: “ In using the words ‘ uncertain, speculative and contingent,’ for the purpose of excluding that kind of damage, it is not meant to assert that the loss sustained must be proved with the certainty of a mathematical demonstration to have been the necessary result of the breach of covenant by the defendant. The plaintiff is not bound to show to a certainty that excludes the possibility of a doubt that the loss to him resulted from the action of the defendant in violating his agreement. In many cases such proof cannot be given, and yet there might be a reasonable certainty founded upon inferences legitimately and properly deducible from the evidence that the plaintiff’s loss was not only in fact occasioned by the defendant’s violation of his covenant, but that such loss was the natural and proximate result of such violation. Certainty to reasonable intent is necessary, and the meaning of that language is that the loss or damage must be so far removed from speculation or doubt as to create in the minds of intelligent and reasonable men the belief that it was most likely to follow from the breach of the contract and was a probable and direct result thereof. Such a result would be regarded as having been within the contemplation of the parties and as being the natural accompaniment and the proximate result of the violation of the contract. . • • The proof may sometimes be rather difficult upon the question whether the damage was the just or proximate result of the breach of the covenant. In such case it does not In re BOARDMAN, Applicant on behalf of Durrant. 39 Syllabus. come with very good grace from the defendant to insist upon the most specific and certain proof as to the cause and the amount of the damage when he .has himself been guilty of a most inexcusable violation of the covenants which were inserted for the very purpose of preventing the result which has come about.” We are of opinion that the Court of Appeals erred in affirming the judgment of the Supreme Court of the District. The judgment is reversed, and the cause is remanded, with directions for a new trial in the Supreme Court of the District and for further proceedings consistent with this opinion. In re BOARDMAN, Applicant on behalf of Durrant. ORIGINAL. No number. Presented and denied, January 7,1898. Application for leave to file a petition for a writ of habeas corpus will be denied if it be apparent that the only result, if the writ were issued, would be the remanding of the petitioner. The action of a Circuit Court in refusing an appeal from a final order dismissing a petition for habeas corpus and denying the writ cannot be revised by this court on habeas corpus. The fact that, when an appeal from a final order of a Circuit Court, denying a writ of habeas corpus and dismissing the petition therefor of a person confined under state authority, has been prosecuted to this court and the order affirmed, the state court proceeds to direct sentence of death to be enforced before the issue of the mandate from this court, does not justify the interposition of this court by the writ of habeas corpus. Where the statutes of a State provide that execution under a sentence of death shall not be stayed by an appeal to the highest tribunal of the State unless a certificate of probable cause be granted as provided, and such certificate has been refused, and application for supersedeas denied, this court cannot interfere on habeas corpus on the ground, if Federal questions were raised on such appeal, that thereby the party condemned is deprived of the privilege or immunity of suing out a writ of error from this court. The case is stated in the opinion. 40 OCTOBER TERM, 1897. Opinion of the Court. Mr. Louis P. Boardman in person for petitioner. No one opposing. Me. Chief Justice Fuller delivered the opinion of the court. Application was made on behalf of Durrant, held in custody by the warden of the State’s prison at San Quentin, California, for execution to-day, under sentence of death, for leave to file a petition for the writ of habeas corpus. The petition in support of general allegations that Durrant was confined under proceedings in contravention of the Constitution and laws of the United States, set forth, in hac verba, two petitions for the writ presented on Durrant’s behalf to the Circuit Court of the United States for the Ninth Circuit and Northern District of California, on November 11 and December 31, 1897, respectively; and the action of that court in respect thereof. The averments of these petitions must be considered in the light of sections 1227 and 1243 of the Penal Code of California, which read as follows: “ § 1227. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction is had, on the application of the district attorney of the county in which the conviction is had, must order the defendant to be brought before it, or if he is at large, a warrant for apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reasons exist against the execution of the judgment, must make an order that the warden of the state prison to whom the sheriff is directed to deliver the defendant shall execute the judgment at a specified time. The warden must execute the judgment accordingly.” “ § 1243. An appeal to the Supreme Court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the Supreme Court, In re BOARDMAN, Applicant on behalf of Durrant. 41 Opinion of the Court. that, in his opinion, there is probable cause for the appeal, but not otherwise.” It was alleged in the petition of November 11, that, theretofore, Durrant had been found guilty of murder in the first degree in the Superior Court of the city and county of San Francisco; that judgment had been rendered on the verdict, and he had been sentenced to death; that an appeal had been taken from that judgment to the Supreme Court of California, and the judgment affirmed. See 48 Pac. Rep. 75. That on April 10, 1897, the Superior Court rendered a second judgment against Durrant, from which he took an appeal to the state Supreme Court, raising Federal questions thereon, and that that appeal was still pending and undetermined. That on June 2, 1897, application had been made by Durrant to said Circuit Court of the United States for a writ of habeas corpus, which application was denied, and from that order an appeal was duly taken and perfected to the Supreme Court of the United States, but that no mandate showing the determination of that appeal had been filed in the Circuit Court, yet, nevertheless, judgment was entered by the Superior Court, November 10, sentencing Durrant to be executed Friday, November 12, though that court was Without authentic or official information that said appeal had been considered or determined in the Supreme Court of the United States. Hence it was charged that the judgment of the Superior Court of November 10 was null and void; and also because of the pendency of the appeal from the alleged judgment of April 10, 1897. It was further averred that the Circuit Court on the eleventh of November denied the writ and dismissed the petition ; that from this order petitioner prayed an appeal, presenting a notice of appeal, assignment of errors, citation and bond for costs; and that the Circuit Court refused to allow an appeal, or to permit the papers to be filed, and neither of its judges would approve the bond, nor sign the citation. The petition of December 31 reiterated in substance the allegations of the previous application, and insisted that by 42 OCTOBER TERM, 1897. Opinion of the Court. reason thereof an appeal from the final order of the Circuit Court of November 11 was actually pending in the Supreme Court of the United States, and suspended further proceedings, against Durrant, but that, nevertheless, the Superior Court on December 15, 1897, though without authority and contrary to the Constitution and laws of the United States, entered an order directing the execution of Durrant on January 7, 1898; that from this order Durrant had prosecuted an appeal to the Supreme Court of California, which was still pending and undetermined ; and that the judge of the Superior Court and the justices of the Supreme Court had refused to grant a certificate of probable cause, so that the proceedings below were not stayed by said appeal. That Federal questions had been raised before the Superior Court and that the disposition thereof was brought under review by the appeal to the Supreme Court, and that if the order of December 15 were carried into effect, petitioner would be deprived of the right to prosecute a writ of error from the Supreme Court of the United States to the final judgment of the Supreme Court of California in respect of such Federal questions; as was true also of the appeal from the judgment of April 10, 1897. Some other matters were put forward in the petitions, but these were not insisted on at the bar, and were so evidently destitute of merit as to require no observations. The contention here practically rested on these grounds: First. That the judgment of the Superior Court on the tenth of November, was void because the mandate of this court on the appeal from the final order of the Circuit Court of June 2 had not been sent down; and that although the Circuit Court denied an appeal from its final order refusing the writ and dismissing the petition of November 11, still the appeal should be regarded as duly perfected, and that for that reason, or because the Circuit Court could not arbitrarily defeat such appeal, petitioner was entitled through the interposition of this court by the issue of the writ applied for to be placed in the same position as if the appeal had been granted. Second. That as the appeals from the judgments of April In re BOARDMAN, Applicant on behalf of Durrant. 43 Opinion of the Court. 10 and of December 15 involved Federal questions and were still pending in the state Supreme Court, the execution of the sentence in accordance with the state statutes would deprive petitioner of the right, privilege and immunity of suing out writs of error from this court to revise the final judgments of that court when entered on those appeals. The rule was laid down in Spies n. Illinois, 123 U. S. 131, that when application is made to this court for the allowance of a writ of error to the highest court of a State, the writ will not be allowed if it appear from the face of the record that the decision of the Federal question which is complained of was so clearly right as not to require argument. And the same rule governs an application to us for the writ of habeas corpus, which must be denied, if it be apparent that the only result, if the writ were issued, would be the remanding of the petitioner to custody, for the object of the writ is to ascertain whether the prisoner applying for it can legally be detained, and it is the duty of the court, justice or judge, granting the writ, on hearing, “ to dispose of the party as law and justice may require.” Rev. Stat. § 761; lasigi v. Van De Carr, 166 U. S. 391; Ekiu v. United States, 142 U. S. 651. The action of the Circuit Court in refusing to grant the appeal from its final order of the 11th of November, on the petition then presented, and in declining to entertain the petition of December 31, cannot be revised on this application, and the inquiry really is whether these petitions furnish any ground for the conclusion that if the writ were granted the prisoner’s detention would be found illegal. As it appears on the face of the record that the judgment of November 10 was superseded and that petitioner is held for execution under the judgment of December 15, it manifestly follows that we could not enlarge the prisoner as unlawfully detained on the ground that if the Circuit Court had allowed an appeal from its final order of November 11, further proceedings below would have been stayed until that appeal was disposed of. Nor could we hold that that final order was erroneous because the judgment of November 10 was entered in the 44 OCTOBER TERM, 1897. Opinion of the Court. absence of our mandate on the affirmance of the final order of the Circuit Court of June 2, 1897. The judgment of this court affirming that order was rendered, as we know from our own records, November 8 (see 168 U. S. 705), and we have decided that if the state court after judgment here proceeds before our mandate issues, its action, though not to be commended, is not void. In re Shibuya Jugiro, 140 U. S. 291. In this instance the state trial court did so proceed, but, in the due and orderly administration of justice, its judgment was superseded by the Supreme Court of the State, which, it is proper to note, granted the certificate of probable cause on the principal ground that the lower court could not exercise jurisdiction to fix a day for the execution of sentence against defendant, in the absence of authentic and official evidence of the disposal of the appeal to this court. People v. Durrant, 50 Pac. Rep. 1070. In respect of the alleged abridgment of petitioner’s privilege or immunity to sue out writs of error from this court to revise the final judgments of the state Supreme Court on appeals therein pending, and particularly the appeal from the judgment of the Superior Court of December 15, which, it was argued, raised Federal questions, it is sufficient to say that it was for the trial judge or the Supreme Court of California to determine whether or not the judgments complained of should be stayed or superseded, and with such determination it is not our province through this writ to interfere, nor do the statutory provisions in that behalf, in themselves, involve any infraction of the Constitution or laws of the United States. Kohl v. Lehlback, 160 U. S. 293; Bergemann n. Backer, 157 U. S. 655; Andrews v. Swartz, 156 U. S. 272. All the averments in the papers, as well as a petition for a writ of error, which had been previously presented to some of our number and denied, as was admitted, and the suggestions urged at the bar, have been duly considered, with the result that the court is unanimously of opinion that if the writ should be awarded, it would be its duty on the return thereto to remand the petitioner. The application is, therefore, Denied. BUILDING AND LOAN ASSOCIATION V. PRICE. 45 Opinion of the Court. BUILDING AND LOAN ASSOCIATION OF DAKOTA v. PRICE. appeal from the circuit court of the united states foe THE NORTHERN DISTRICT OF TEXAS. No. 158. Submitted December 9, 1897. — Decided January 10,1898. The court below having dismissed the bill in this case on the ground that it had no jurisdiction, as the matter in dispute was determined not to exceed $2000 exclusive of interest and costs, this court examines the bill at length in its opinion, and holds that upon the face of the pleading the matter in dispute is sufficient to give the court below jurisdiction, and remands the case for further proceedings, without determining any of the other questions on the merits. The case is stated in the opinion. Mr. J. H. Hauser and Mr. C. W. Starling for appellant. Mr. IF. S. Simkins and Mr. T. E. Conn for appellees. Mr. Justice Peckham delivered the opinion of the court. The appellants herein commenced this action against the defendants in the Circuit Court of the United States for the Northern District of Texas, the complaint in which was filed on the 3d of October, 1895. The defendants demurred on the ground that the court had no jurisdiction of the several subjects-matter set forth in the complaint, one of the objections being that the matter in dispute did not exceed $2000 exclusive of interest and costs. The cau$e was heard in the Circuit Court, the demurrer was sustained, and the bill dismissed with costs and without prejudice, for want of jurisdiction of the subject-matter in controversy. The complainant appealed to this court, which appeal was allowed and granted solely upon the question of the jurisdiction of the Circuit Court, and that question alone 46 OCTOBER TERM, 1897. Opinion of the Court. has been certified. Whether the bill shows facts sufficient to invoke the consideration of a court of equity is not such a question of jurisdiction as is referred to in the Judiciary Act of March 3, 1891, c. 517, and we have therefore no concern with that question. 26 Stat. 826, § 5; Smith v. McKay, 161 U. S. 355. The decision of the only question before us depends upon whether the allegations contained in the bill of complaint show the matter in dispute to be of sufficient value to give the Circuit Court jurisdiction. The appellant was incorporated under the laws of the State of South Dakota, and has its principal place of business in the •city of Aberdeen, in that State. The action was brought for the purpose of recovering the amount of an alleged debt, damages and costs against the defendants Price, Rothschild and Miller, and for a decree of foreclosure against the defendants H. M. Price and W. B. Luna, under a certain mortgage and vendor’s lien on the premises described therein. The bill alleges, among other things, that on the first of January, 1890, one Jacob Rothschild applied for membership in the complainant’s association and subscribed for forty shares of its capital stock, which application was accepted, and on that day a certificate for forty shares of the capital stock was issued and delivered to him, and he paid the application or subscription fee due thereon, and the stock was accepted and received by him upon the terms and conditions therein set forth, and he thereupon became a member of the association and the holder and owner of forty shares of its capital stock. The bill then proceeds as follows: “ 3d. Your orator further shows that on or about the said first day of January, 1890, the said Jacob Rothschild, being then and there a stockholder in your orator and entitled under the rules, regulations and by-laws to make application for an advancement on his said stock, made his application to your orator for an advancement of two thousand dollars in anticipation of the maturity value of his said forty shares of stock, and in competition with other bidders for the funds of your BUILDING AND LOAN ASSOCIATION V. PRICE. 47 Opinion of the Court. -orator bid as a premium for the privilege of obtaining such advancement the sum of fifty dollars per share and offered as security for the continued payment for the monthly dues on said forty shares of stock and the interest on said advancement the real estate hereinafter described; and your orator further shows that said application and bid were made in .accordance with the rules, regulations and by-laws of said association, and were duly accepted and approved by your orator’s board of directors, and the advancement applied for was duly made, and the amount due thereon was duly paid to the said Jacob Rothschild; that said advancement was made by your orator on the faith and in the expectation that the said Rothschild would, according to his agreement, continue the monthly payment on his said forty shares of stock until such stock should have become fully matured and of the value of one hundred dollars per share. “ 4th. Your orator further shows that on or about the first day of February, 1890, the said Jacob Rothschild and the defendant, Bertha Rothschild, for and in consideration of the advancement so made and for the purpose of securing the continued payment of the monthly dues on said stock, made, executed and delivered to your orator, and thereby promised and agreed to comply with the terms of a bond, of which the following is substantially a copy: “‘Know all men by these presents, that Jacob Rothschild and Bertha Rothschild, his wife, of the county of Dallas, and State of Texas, are held and firmly bound unto the Building and Loan Association of Dakota, of the city of Aberdeen, and State of South Dakota, in the sum of four thousand ($4000) dollars, lawful money of the United States of America, to be paid to the said association, its certain attorney, successors or assigns, at its home office in Aberdeen, South Dakota, to which payment, well and truly to be made, we bind ourselves and our heirs, executors and administrators, jointly and severally, firmly by these presents. “ ‘ Sealed with our seals, and dated at Aberdeen, South Dakota, this first day of February, one thousand eight hundred and ninety. 48 OCTOBER TERM, 1897. Opinion of the Court. 1 The condition of this obligation is such that, whereas, said Jacob Rothschild has bid, in accordance with the by-laws of said association, the sum of two thousand ($2000) dollars, as and for a premium for the advancement to him by said association of two thousand dollars, by way of anticipation of the value, at their maturity, of forty shares of the capital stock of said association, now owned by said Jacob Rothschild and, whereas, said association has this day advanced to said Jacob Rothschild the sum of two thousand dollars, in consideration of said premium, and by way of said anticipation: “ ‘ Now, therefore, if the above bounden Jacob Rothschild and Bertha Rothschild, their heirs, executors and administrators, or any of them, shall well and truly pay or cause to be paid unto the said association, its certain attorney, successors or assigns, at its home office, on or before nine years from date hereof, the just sum of four thousand dollars as aforesaid, together with interest on two thousand dollars, at the rate of six per cent per annum, from the first day of February, a.d. 1890, until paid, payable monthly in advance; or shall well and truly pay, or cause to be paid, unto said association, its certain attorney, successor or assigns, at its said home office, the sum of twenty-four and dollars on the first day of each and every month hereafter, as and for the monthly dues on said forty shares of capital stock of said association now owned by the said Jacob Rothschild, and by him hereby sold, assigned, transferred and set over to said association as security for the faithful performance of this bond, and shall also well and truly pay, or cause to be paid, all instalments of interest aforesaid, and all fines which become due on the said stock, without any fraud or further delay, until said stock becomes fully paid in and of the value of one hundred dollars per share, and shall then surrender said stock to said association; then, and in either of such cases, the above obligation to be void, otherwise of full force and virtue. “ ‘ Provided, however, and it is hereby expressly agreed, that if, at any time, default shall be made in the payment of said interest, or the said monthly dues on said stock, for the space BUILDING AND LOAN ASSOCIATION v. PRICE. 49 Opinion of the Court. of six months after the same, or any part thereof, shall have become due, or if the taxes and assessments on the property mortgaged to secure the faithful performance of this bond be not paid when due, or if the insurance policy or policies on the said mortgaged property be allowed to expire without renewal, then, and in either or any such case, the whole principal sum aforesaid shall, at the election of said association, its successors or assigns, immediately thereupon become due and payable, and the sum of four thousand dollars, less whatever sum has been paid said association, as and for the monthly dues on said forty shares of said capital stock, at the time of said default, may be enforced and recovered at once as liquidated damages, together with and in addition to, all interest and fines then due, and all costs and disbursements, including said taxes, insurance and assessments, which have been paid by said association, anything hereinbefore contained to the contrary notwithstanding. “ ‘ Jacob Rothschild. [Seal.] “ ‘ Bertha Rothschild. [Seal.] “ ‘ Signed, sealed and delivered in presence of — «‘W. L. Hall. ‘“0. S. Crysler.’ “5th. Your orator would further show that, on the first day of February, 1890, the said Jacob Rothschild and the defendant Bertha Rothschild, in order to better secure your orator for the money advanced by your orator as aforesaid and in all their agreements, obligations and contracts as aforesaid, made, executed and delivered to your orator their certain mortgage or deed of trust, with power of sale, in which Charles S. Crysler was made trustee on the following described tract or lot of land, situated in the city of Dallas, county of Ballas, and State of Texas, and more particularly described as follows: (Here follows description of property.) ‘6th. Your orator would further show that it is recited in said deed of trust, among other things, that the said Jacob Rothschild is a member of the Building and Loan Association VOL. CLXIX—4 50 OCTOBER TERM, 1897. Opinion of the Court. of Dakota, and is the owner of forty shares of the capital stock thereof, the monthly payments of which amount to $24.00; and it is further recited that said deed of trust is given for the purpose of securing the aforesaid bond, the nature of which bond is fully set forth in said deed of trust. “7th. Your orator would further show that it is stipulated in said deed of trust that if the said defendants shall well and truly pay or cause to be paid the sum of four thousand dollars, together with the interest above specified, within the time and in the manner as in said bond specified, or shall pay or cause to be paid, at the home office of said association, the instalments of interest as they become due on said stock, until said stock becomes fully paid in and of the value of one hundred dollars per share, and before any of said instalments of interest or monthly payments shall have been past due for a period of sixty (60) days, and shall then surrender said stock to said association in payment of said bond, and shall pay the taxes and assessments and shall keep and perform all and every of the conditions of said bond, then this deed shall be void and the property hereinbefore conveyed shall be released at the cost of the parties executing the said bond, but otherwise to continue in full force and effect; but if default be made in the payment of said sum or sums of money or any instalment of interest thereon or of any monthly payment of stock for the period of sixty (60) days after the same shall be due, or any part of either, or in the payment of taxes at the time or times specified for payment, or in any condition in said deed of trust contained, then or in either or any such case the whole principal sum or sums secured by this trust deed and the interest thereon accrued up to the time — such default shall, at the election of your orator, its successors or assigns, or its or their agent, become thereupon due and payable immediately upon said default. Whereupon the trustee in said trust deed is authorized and empowered to sell said premises in accordance with the stipulations contained in said instrument, and with the proceeds of said sale to pay the expenses of sale and all sums of money due by the terms of said bonds so in default, with all interest due thereon, and all taxes, if any, due to said association. BUILDING AND LOAN ASSOCIATION V. PRICE. 51 Opinion of the Court. “8th. Your orator further shows that said forty shares of stock have not been withdrawn, nor have they matured or become of the par value of one hundred dollars per share; that subsequent to the execution, delivery and record of the aforesaid deed of trust the said Jacob Rothschild and Bertha Rothschild conveyed the aforesaid premises to the defendant Sophia Miller, who, as a part of the purchase price for said premises, assumed and agreed to pay the said bond in the sum of four thousand dollars, secured by the aforesaid deed of trust lien, retaining a vendor’s lien in said deed of conveyance to secure the payment of the aforesaid sum of four thousand dollars; that subsequently the said Sophia Miller conveyed said premises in like manner to the defendant M. S. Price as her separate property, who, as a part of the purchase price therefor, assumed and agreed to pay said bond secured by said deed of trust lien, said Sophia Miller retaining a vendor’s lien for the payment thereof and for the payment of other portions of the purchase money, by virtue of which she may claim some interest in the aforesaid premises; that W. B. Luna also claims some interest in the aforesaid premises, which interest, if any, is subsequent and inferior to that of your orators. “ Your orator further alleges that it is now the owner and holder of the said bond and deed of trust. Your orator further shows that the said defendants have not paid said principal sum of $4000, nor any part thereof; that the said defendants have not continually paid the monthly dues on said forty shares of stock, nor the monthly instalments of interest as provided in said bond, but that defendants have paid no part of said dues or interest except the sum of twelve hundred dollars ($1200) as and for the said monthly dues for the month of February, 1890, to and including the month of March, 1894, and the further sum of $500 as and for the interest, as in said bond provided, for the month of February, 1890, to and including the month of March, 1894. “Your orator further shows that default has been made in the payment of the monthly dues on said forty shares of stock and the monthly instalments of interest on said ad- 52 OCTOBER TERM, 1897. Opinion of the Court. vancement; that more than six months have elapsed since the first monthly instalment of interest and dues so in default became due and payable, and your orator elects to declare the whole sum named in and secured by said bond and deed of trust to be immediately due and payable. “ 9th. Your orator further shows that there is now due and. owing your orator from Bertha Rothschild, Sophia Miller, H. M. and M. S. Price under and by virtue of the terms of said bond the sum of four thousand dollars, ($4000,) less the sum of twelve hundred dollars, ($1200,) paid to your orator as the monthly dues on said forty shares of capital stock at the time of the aforesaid default, aggregating $2800, together with and in addition to interest on two thousand dollars, at the rate of six per cent per annum, from April 1, 1894.” The complainant then prays for a de.cree against defendants for the amount of the above-named debt, damages and costs, and for a decree of foreclosure of the mortgage above set forth. We think upon the face of this pleading the matter in dispute exceeds the amount of two thousand dollars, exclusive of interest and costs. Act of August 13,1888, 25 Stat. 433, c. 866. The by-laws of the complainant are not made a part of the bill and they cannot be referred to for the purpose of aiding or marring the pleading itself. In truth, they are not in the record, and we are. ignorant of their contents, except as some matters set forth in the bill are alleged to be in conformity with certain of their provisions. Nor can the inference be indulged, on a question of jurisdictional amount, that the whole scheme is a mere cover to conceal an usurious exaction of interest for the loan of a sum of money not exceeding in any event $2000. No such legal inference arises from the facts stated in the bill. On the contrary, it appears on the face of the bill that the company was duly incorporated by legislative act; that Rothschild, the original owner of the stock, applied for membership in the company, subscribed for forty shares thereof, and promised to pay for it in the manner stated. We cannot assume, as a matter of legal inference, BUILDING AND LOAN ASSOCIATION V. PRICE. 53 Opinion of the Court. that the circumstances set forth in the bill constitute a cover for usury, and we must take those allegations as they are made .and assume their truth for the purpose of our decision. The bill showsan application to complainant for an advance of $2000 in anticipation of the maturity value of the shares of stock owned by Rothschild; that the application was granted and the advance applied for duly made and the amount paid to Rothschild, and that it was made on the faith and in the expectation that he would, according to his agreement, continue the monthly payments on his stock until it became fully matured and of the value of one hundred dollars per share. The bond given as part security for the repayment of this advance contains distinct contracts. The obligor agreed to pay in nine years from the date thereof $4000, and interest on $2000 at six per cent from February, 1890, until paid, the interest being payable monthly in advance ; or, instead of this payment, he agreed to pay $24 on the first of every month at the home office of the company as monthly dues, being at the rate of sixty cents per month on each share, there being forty shares of stock, and he agreed to continue these payments until the stock became fully paid up and of the value of $100 per share, when he was to surrender it to the company, and he agreed also to pay the interest as stated above. We cannot assume, as against the allegations contained in the bill, that the payment of these monthly dues upon the contract was pursuant to an agreement to pay interest on the loan, and that such payment was merely another name for interest. It is alleged to be separate and distinct from that, and it is set up as a material portion of the obligation of the borrower who, by subscribing for the shares and being accepted, etc., thereby became a shareholder and entitled to dividends and profits coming to the shares he held. Upon default in either of these distinct obligations, to pay interest and to also pay his monthly dues, the whole sum at the option of the association became due less whatever sum had been paid it as the monthly dues at the time the default might be •enforced. The bill here shows that there had been a default 54 OCTOBER TERM, 1897. Opinion of the Court. for six months, and that there was due from defendants at commencement of suit the sum of four thousand dollars less the sum of twelve hundred dollars of monthly dues which had been paid up to and including March, 1894, leaving due the sum of $2800, together with and in addition to the interest on $2000, at the rate of six per cent per annum, from April, 1894. The matter in dispute, therefore, is not merely $2000 money loaned, together with the interest on that sum, but the claim on the part of the complainant is for the payment of the principal sum above stated, which exceeds the sum of $2000, exclusive of interest and costs. All these facts are admitted by the demurrer. The nature of this association is not very clearly set forth in the bill, but it is probably not materially different from those which have been incorporated to a great extent in many different States, and referred to generally in Endlich in his work on Building Associations. A question somewhat similar to this has been decided in Richard v. Southwestern Building & Loan Association, 21 S. R. 643, (49 La. Ann.,) where it was held that a loan of this nature was not to be treated as usurious, for the reason that the payments supposed to constitute the usury were by the terms of the contract made upon the stock debt and not upon the loan. To the same effect is Equitable Building & Loan Association v. Vance, 27 S. E. Rep. 274, Supreme Court of South Carolina, May, 1897. The stock is not, as is claimed by counsel for appellee, a mere fiction. It is issued, it is to be assumed on this appeal, in accordance with the provisions of the charter of the com-plainantj and the owners of it are entitled to share in the profits of the corporation, which it is supposed it will be enabled to make during its existence, and his position of shareholder is entirely separate from his position of borrower from the company. Without determining any of these questions on the merits, we think the matter in dispute was within the jurisdiction of the Circuit Court, and we therefore reverse the judgment WILLIAMS V. PAINE. 55 Statement of the Case. dismissing the bill, and remand the case to the Circuit Court with directions to take such further proceedings as may be in conformity with this opinion. Reversed. WILLIAMS v. PAINE. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 114. Argued November 29, 80,1897. —Decided January 10, 1897. Under the laws of Maryland, which were in force in the District of Columbia in 1859, it was competent for a married woman, outside of the District, to execute, with her husband, a power of attorney to convey her lands therein, which, when acknowledged by her according to the statute relating to the acknowledgment by married women of deeds conveying their real property in the District, thereby became a valid and sufficient instrument to authorize the conveyance by attorney; and the first section of the act of March 3, 1865, c. 110, 13 Stat. 531, contains a clear legislative recognition of the right to execute such power. Such a power of attorney, executed in one of the Northern States before the civil war by a married woman then residing there, was not revoked by the fact that when that war broke out she and her husband removed to the Southern States, where he entered the Confederate service, and where she resided to the close of the war. When the purchase money for land sold under such a power is received by the principal, to permit her heirs after her death to repudiate the transaction, on the ground that the power of attorney had been revoked by the war, would be in conflict with every principle of equity and fair dealing. A majority of the court think that the deed made under the power of attorney which is in controversy in this suit, and which is printed at length in the Statement of the Case, below, was in the nature of a conveyance of the legal title, though defectively executed, and that it came within the provisions of the act of March 3, 1865, and its defective execution was thereby cured. By this disposition of the whole case upon the merits the court is not to be considered as deciding that parties situated as the plaintiffs were in this case, out of possession, can maintain an action for partition. The appellants herein brought this suit in the Supreme Court of the District of Columbia for the purpose of obtaining 56 OCTOBER TERM, 1897. Statement of the Case. partition of certain lands in the city of Washington, known as square 53 of the ground plan of that city. Upon the trial it appeared that the common source of title was one George W. Peter, who, in January, 1837, conveyed the premises to Henry Huntt and Benjamin Ogle Tayloe as tenants in common. Mr. Huntt died in 1838 intestate, leaving two daughters, Fannie and Mary, and a son named George Gibson Huntt, to whom his undivided interest in these lands descended. Fannie married an officer in the United States Army named Gibson, and Mary married an officer in that army named Robert Ransom, Jr. In May, 1859, Lieutenant Ransom was stationed at Carlisle Barracks in Pennsylvania, and at that time he and his wife executed and acknowledged a power of attorney to the brother of Mrs. Ransom, to convey their interest in the land, the material part of which power reads as follows: “Know all men by these presents, whereas Lieut. Robert Ransom, Jr., of the United States Army, and Mary his wife in right of the said Mary are seized in fee-simple as tenants in common, with the sister and brother of the said Mary, to wit, Fanny Huntt and George Gibson Huntt and with B. 0. Tayloe of certain lots of ground in the city of Washington in the District of Columbia, which are described as folldws: [Describing among others the lots in question.] To provide for the contingency of our absence we, the said Robert Ransom, Jr., and Mary my wife, do by these presents constitute and appoint and in our place put and depute the said George Gibson Huntt, of Washington city aforesaid, to be our true and lawful attorney in fact for us, and in our name place and stead to control, manage, grant, bargain and sell, and in that event convey all our right, title and interest in and to the said lots and square of ground or any part or parts thereof, or to join in and for us and in our name to sign any proceedings in partition of the said lots and square, or to appear for us in court for that purpose; and in regard to the said real estate to do, execute and perform every act and thing necessary to be done as fully and amply as we might or could do if personally pres- WILLIAMS V. PAINE. 57 Statement of the Case. ^ent, and we do hereby ratify and confirm all and whatsoever our said attorney in fact may legally do in the premises. “ In witness whereof we, the said parties to these presents, have hereunto set our hands and seals this twenty-third day CIRCUIT. Ko. 142. Argued December 3, 6,1897. —Decided January 17,1898. This was an action on six policies of insurance, all alike (except as to the amount of insurance), and in the following form: “ In consideration of the application for this policy, which is hereby made a part of this contract, the Mutual Life Insurance Company of New York promises to pay at its home office in the city of New York, unto William M. Runk, of Philadelphia, in the county of Philadelphia, State of Pennsylvania, his executors, administrators or assigns, twenty thousand dollars, upon acceptance of satisfactory proofs at its home office of the death of the said William M. Runk during the continuance of this policy, upon the following condition, and subject to the provisions, requirements and benefits stated on the back of this policy, which are hereby referred to and made part hereof. The annual premium of seven hundred and eighty-two dollars shall be paid in advance on the delivery of this policy, and thereafter to the company, at its home office in the city of New York, on the tenth day of November in every year during the continuance of this contract. In witness whereof,” etc. The principal defence was that the assured, when in sound mind, deliberately and intentionally took his own life, whereby the event insured against — his death — was precipitated. One' of the issues was the sanity or insanity of the assured when he committed self-destruction. Held, (l) If the assured understood what he was doing, and the consequences of his act or acts, to himself as well as to others — in other words, if he understood, as a man of sound mind would, the consequences to follow from his contemplated suicide, to himself, his character, his family and others, and was able to comprehend the wrongfulness of what he was about to do, as a sane man would, then he is to be regarded as sane; (2) In the case of fire insurance it is well settled that although a policy, in the usual form, indemnifying against loss by fire, may cover a loss attributable merely to the negligence or carelessness of the insured, unaffected by fraud or design, it will not cover a destruction of the property by the wilful act of the assured himself in setting fire to it, not for the purpose of avoiding a peril of a worse kind but with the intention of simply effecting its destruction; (3) Much more should it be held that it is not contemplated by a policy taken out by the person whose life is insured and stipulating for 140 OCTOBER TERM, 1897. Opinion of the Court. the payment of a named sum to himself, his executors, administrators or assigns, that the company should be liable, if his death was intentionally caused by himself when in sound mind. When the policy is silent as to suicide, it is to be taken that the subject of the insurance, that is, the life of thè assured, shall not be intentionally and directly, with whatever motive, destroyed by him when in sound mind. To hold otherwise is to say that the occurrence of the event upon the happening of which the company undertook to pay, was intended to be left to his option. That view is against the very essence of the contract ; (4) A contract, the tendency of which is to endanger the public interests or injuriously affect the public good,-or which is subversive of sound morality, ought never to receive the sanction of a court of justice or be made the foundation of its judgment; (5) If, therefore, a policy — taken out by the person whose life is insured, and in which the sum named is made payable to himself, his executors, administrators or assigns — expressly provided for the payment of the sum stipulated when or if the assured, in sound mind, took his own life, the contract, even if not prohibited by statute, would be held to be against public policy, in that it tempted or encouraged the assured to commit suicide in order to make provision forthose dependent upon him, or to whom he was indebted. The case is not different in principle, if the policy be silent as to suicide, and the event insured, the death of the assured, is brought about by his wilful, deliberate act when in sound mind. The case is stated in the opinion. Mr. Richard C. Dale and Mr. George Tucker Bispham for plaintiff in error. Mr. John Hampton Barnes was on their brief. Mr. John G. Johnson for defendant in error. Mr. Charles P. Sherman and Mr. Edward Lyman Short were on his brief. Mr. J usTicE Harlan delivered the opinion of the court. This action was brought against the Mutual Life Insurance Company of New York on six policies of life insurance, each bearing date November 10, 1891, one for $20,000, one for $15,000, and four for $10,000 each. There was a verdict in its favor, upon which judgment was entered, and that judgment was affirmed in the Circuit Court of Appeals. 28 U. 8. App. 612. RITTER V. MUTUAL LIFE INSURANCE CO. 141 Opinion of the Court. The policies were all alike except as to the amount of insurance, and were in the following form: “ In consideration of the application for this policy, which is hereby made a part of this contract, the Mutual Life Insurance Company of New York promises to pay at its home office in the city of New York, unto William M. Bunk, of Philadelphia, in the county of Philadelphia, State of Pennsylvania, his executors, administrators or assigns, twenty thousand dollars, upon acceptance of satisfactory proofs at its home office of the death of the said William M. Bunk during the continuance of this policy, upon the following condition, and subject to the provisions, requirements and benefits stated on the back of this policy, which are hereby referred to and made part hereof. The annual premium of seven hundred and eighty-two dollars shall be paid in advance on the delivery of this policy, and thereafter to the company, at its home office in the city of New York, on the tenth day of November in every year during the continuance of this contract. In witness whereof,” etc. The “provisions, requirements and benefits’’thus made part of the policy will be referred to hereafter. The assured died October 5, 1892, all premiums falling due previous to his death having been paid. It is not disputed that he took his own life. In the affidavit of defence filed by the insurance company, it is stated that at or about the time of the execution of the policies in suit, Bunk held policies upon his life to the extent of $315,000 issued to him by other companies; that during the year 1892 he effected additional insurance to a considerable amount, the total amount at or about the time of his death being $500,000; that prior to taking the additional insurance of $200,000, he was indebted in a very large amount by reason of the improper use of moneys entrusted to him in a fiduciary and in a quasi-fiduciary capacity; that he was without resources of his own sufficient to meet the amount of that indebtedness; that he was confronted with the fear of being convicted of breach of trust, and was desirous to protect pecuniarily those whom he had injured ; that he deliberately determined to commit suicide for the purpose of escaping the 142 OCTOBER TERM, 1897. Opinion of the Court. necessity of meeting those whose confidence had been betrayed, and with the intention, through moneys expected to be paid on his policies of insurance, to liquidate wholly or in part the debts owing by him; that he deliberately and intentionally took his life, being at the time in sound mind and in the full possession of his mental faculties; and that his suicide was not the result of nor occasioned by mental unsoundness, but was the act of a man mentally and morally able to understand all the consequences thereof. The affidavit of defence also contained the following statements : “ The policies of insurance sued upon contain a reference to the application therefor, which is made a part of the contract of insurance. A copy of this application is hereto attached, which, it is prayed, may be taken as a part of this affidavit. Under the advice of counsel the defendant avers that this application is a part of said contract, and that the contract of insurance was a contract made in the State of New York, and to be interpreted by, and in accordance with, the laws of that State. “ The policies of insurance sued upon were delivered to the said Bunk upon the faith of an independent contract entered into by him, embodied in the said application, to the effect that if such policies should be granted, he, the said Runk, did, ‘ warrant and agree . . . that I will not die by my own act, whether sane or insane, during the said period of two years ’ —said period of two years dating from the 6th day of November, 1891. “ The said Runk did, within the period of two years, commit a breach of said contract by killing himself, as has been before stated, in the way and manner above recited. By reason of the breach of said contract, and only by reason of such breach, the policy of insurance matured, and damages occasioned by such breach are equivalent in amount to that demanded under the policies.” Each of the applications for policies signed by the assured and attached to the affidavit of defence contained the following: RITTER v. MUTUAL LIFE INSURANCE CO. 143 Opinion of the Court. 111 hereby warrant and agree . . . not to engage in any ¡specially hazardous occupation or employment during the next two years following the date of issue of the policy for which application is hereby made, and also not to engage in any military or naval service, in time of war, during the continuance of the policy, without first obtaining permission from this company; I also warrant and agree that I will not die by my own act, whether sane or insane, during the said period of two years.” At the trial below the defendant offered in evidence Bunk’s application for insurance. This was objected to on the ground that the application was not attached to the policy, and under an act of the General Assembly of Pennsylvania approved May 11, 1881, could not, for that reason, be considered as part of the contract, or be admitted in evidence. The defendant, by counsel, stated at the time that the paper was not offered for the purpose of making it as an “ application ” part of the contract, but to prove that an independent, collateral, contemporaneous agreement was entered into by which Bunk stipulated that he would not die by his own act, whether sane or insane, during the period of two years. The objection to this evidence was sustained, Judge Butler, who presided at the trial in the Circuit Court, observing: “ The representation or statement or agreement, call it by whatever name you choose, is in my estimation a part of the application for insurance, and it constitutes a condition on which the policy was applied for and obtained, as much so as any representation contained in the paper itself, and it is therefore by the statute excluded by reason of the fact that a copy was not attached to the policy. . . . The statute intended that the policy shall exhibit on its face, or the policy in connection with whatever it refers to shall exhibit to the insured the conditions on which he holds the policy. The object of this would be to limit the policy of insurance, to qualify it, to make it available only in case the party lived up to this contract.” The statute of Pennsylvania to which reference was made is in these words: “ That all life and fire insurance policies upon the lives or property of persons within this Common- 144 OCTOBER TERM, 1897. Opinion of the Court. wealth, whether issued by companies organized under the laws of this State, or by foreign companies doing business therein, which contain any reference to the application of the insured or the constitution, by-laws or other rules of the company, either as forming part of the policy or contract between the parties thereto, or having any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application, as signed by the applicant and the bylaws referred to; and, unless so attached and accompanying the policy, no such application, constitution or by-laws shall be received in evidence, in any controversy between the parties to, or interested in, the said policy, nor shall such application or by-laws be considered a part of the policy or contract between such parties.” Laws of Pennsylvania, 1881, No. 23, p. 20. Whether the Circuit Court erred in excluding the application which, by the terms of the contract, constituted the consideration of the company’s promise to pay, is a question that need not be considered. If error was committed in this particular, it was one for the benefit of the plaintiff in the action; for, if the application had been admitted in evidence as part of the contract of insurance, the agreement and warranty of the assured not to die by his own act, whether sane or insane, within two years from the date of the policy, would have precluded any judgment against the insurance company. Traveller^ Ins. Co. v. McConkey y 127 U. S. 661, 666. Upon this writ of error therefore we must assume that the contract of insurance contained no such agreement or warranty by the assured, nor any express condition avoiding the policy in case of suicide. Besides, the defendant does not insist that this court should determine the rights of the parties upon the basis that the application of Runk constituted part of the contract of insurance. It may be added that we do not wish to be understood as expressing any opinion upon the question whether the Circuit Court erred either in its construction of the Pennsylvania statute of 1881, or in applying that statute to the policies here in suit. At the trial in the Circuit Court, the plaintiff submitted the following points: RITTER v. MUTUAL LIFE INSURANCE CO. 145 Opinion of the Court. 1. The evidence was not sufficient to warrant the jur/ in finding that the deceased entered into the contracts of insurance evidenced by the policies sued upon with the intention of defrauding the company. 2. The evidence was not sufficient to warrant the jury in finding that the deceased entered into the contracts of insurance with the intention of committing suicide. 3. The evidence upon the part of the defendant did not warrant any inference of fact constituting a defence in law to the plaintiff’s right to recover the amount due upon the policies. 4. The mere fact that the insured committed suicide did not, standing alone, avoid the policies, there being no condition in them to that effect. 5. If one whose life is insured intentionally kills himself when his reasoning faculties are so far impaired by insanity that he is unable to understand the moral character of his act, even if he does understand its physical nature, consequence and effect, such self-destruction will not of itself prevent recovery upon the policies. The company submitted the following points as the basis of instructions to the jury : 1. There could be no recovery by the estate of a dead man of the amount of policies of insurance upon his life, if he takes his own life designedly, whilst of sound mind. 2. If the jury found that Bunk committed suicide when he was of sound mind, being morally and mentally conscious of the act he was about to commit, of its consequences, and of its nature, with the deliberate intent to secure to his estate and to his creditors, the amount of the policies sued upon, there could be no recovery. 3. If the jury found that Bunk obtained the policies of insurance sued upon at a time when he was insolvent and an embezzler, with the intent thereby to secure, in case of his death, from the defendant, a fund with which to pay those to whom he was indebted, and whose property he had embezzled, and subsequently committed suicide, whilst of sound mind, with the deliberate intent to carry out this scheme, there could be no recovery. VOL. CLXIX—io 146 OCTOBER TERM, 1897. Opinion of the Court. 4. The defendant was entitled to set off the loss occasioned by the failure of Bunk to keep his agreement not to die by his own hand within two years of the date thereof; and the amount of this loss cannot be less than that of the policies sued upon. The court disaffirmed the plaintiff’s first, second and third points without comment. It disaffirmed the plaintiff’s fourth point relating to the effect upon the rights of the assured of suicide standing alone, and affirmed the defendant’s first point relating to the same matter. The plaintiff’s fifth point was affirmed, the court, however, accompanying its affirmance of that point with some observations to be presently referred to. It will be observed that the plaintiff’s first and second points assumed that the evidence was not sufficient to warrant a finding that the assured entered into the contracts of insurance with the intention either to defraud the company or to commit suicide. The court rightly refused to so instruct the jury. When the last policies were taken out by Bunk he was carrying insurance on his life for an amount large enough to require annual premiums of about $12,000. His income, so far as the record shows, was inadequate to meet such a burden. And yet, in 1891, he largely increased the insurance on his life, and added about $8000 to the sum to be paid annually for premiums. Besides these facts, it appeared that on the day before his death he avowed that his debts must be paid, and that they could only be paid with his life. That avowal was in a letter written to his partner, in which he said that he had deceived the latter, and could only pay his debts with his life. That letter concluded : “ This is a sad ending of a promising life, but I deserve all the punishment I may get, only I feel my debts must be paid. This sacrifice will do it, and only this. I was faithful until two years ago. Forgive me. Don’t publish this.” On the same day he wrote to his aunt, to whom he was indebted in a large sum, saying, among other things: “ Forgive me for the disgrace I bring upon you, but it is the only way I can pay my indebtedness to you.” In addition, he left for the guidance of his executor a memoran- RITTEB v. MUTUAL LIFE INSURANCE CO. 147 Opinion of the Court. dum of his business affairs, prepared just before his death, and which tended to show that he was at that time entirely himself. In view of these and other facts established by.the evidence, the court did not err in disaffirming the first and second of plaintiff’s points. We may add that, under the charge to the jury, it became unnecessary for them to inquire whether the policies were taken out with the intention of defrauding the insurance company or of committing suicide. The court said to the jury: “What constitutes insanity, in the sense in which we are using the term, has been described to you, and need not be repeated. If this man understood the consequences and effects of what he was doing or contemplating, to himself and to others, if he understood the wrongfulness of it, as a sane man would, then he was sane, so far as we have occasion to consider the subject; otherwise he was not. Here the insured committed suicide, and, as the evidence shows, did it for the purpose, as expressed in his communication to the executor of his will, as well as in letters written to his aunt and his partner, of enabling the executor to recover on the policies, and use the money to pay his obligations. I therefore charge you that if he was in a sane condition of mind at the time, as I have described, able to understand the moral character and consequences of his act, his suicide is a defence to this suit. The only question, therefore, for consideration is this question of sanity. There is nothing else in the case. That he committed suicide, and committed it with a view to the collection of this money from the insurance companies and having it applied to the payment of his obligations, is not controverted, and not controvertible. It is shown by his own declaration, possibly not verbal, but written. The only question, therefore, is whether or not he was in a sane condition of mind, or whether his mind was so impaired that he could not, as I have described, properly comprehend and understand the character and consequences of the act he was about to commit. In the absence of evidence on the subject he must be presumed to have been sane. The presumption of sanity is not overthrown by the act of committing suicide. Suicide 148 OCTOBER TERM, 1897. Opinion of the Court. may be used as evidence of insanity, but standing alone it is not sufficient to establish it. . . . If you find him to have been insane, as I have described, your verdict will be for the plaintiff. Otherwise it will be for the defendant.” It thus appears that the case was placed before the jury upon the single issue as to the alleged insanity of the assured at the time he committed suicide, and with a direction to find for the plaintiff if the assured was insane at that time, and for the company if he was then of sound mind. Assuming that the jury obeyed the instructions of the court, their verdict must be taken as finding that the assured was not insane at the time he took his life. We must then inquire whether the observations of the trial court on the subject of insanity were liable to objection. We have seen that the plaintiff asked the court to instruct the jury that if the assured intentionally killed himself when his reasoning faculties were so far impaired by insanity that he was unable to understand the moral character of his act, even if he did understand its physical nature, consequence and effect, such self-destruction would not of itself prevent recovery upon the policies. This was the only instruction asked by the plaintiff which undertook to define insanity, and, as before stated, it was given by the court. But in giving it the court said: “We must understand what is meant and intended by the term ‘ moral character of his act.’ It is a point which has been used by the courts, and is correctly inserted in the term; but it is a term which might be misunderstood. We are not to enter the domain of metaphysics in determining what constitutes insanity, so far as the subject is involved in this case. If Mr. Bunk understood what he was doing, and the consequences of his act or acts, to himself as well as to others — in other words, if he understood, as a man of sound mind would, the consequences to follow from his contemplated suicide, to himself, his character, his family and others, and was able to comprehend the wrongfulness of what he was about to do, as a sane man would—then he is to be regarded by you as sane. Otherwise he' is not.” Substantially the same obser- BITTER v. MUTUAL LIFE INSURANCE CO. 149 Opinion of the Court. rations were made in that part of the charge, which is above given. The plaintiff insists that the definition of insanity, as given by the trial court, was much narrower than was required or permitted by the decisions of this court. It is said that the impairment not only of the moral vision but also of the will, leaving the deceased in a condition of inability to resist the impulse of self-destruction, has been accepted by this court as describing a phase of insanity or mental unsoundness. One of the cases to which the plaintiff referred in support of this view is Davis v. United States, 165 U. S. 373, 378, which was a prosecution for murder. It was there held that the accused was not prejudiced by the following instruction given to the jury: “ The term ‘ insanity ’ as used in this defence means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing; or where, though conscious of it and able to distinguish between right and wrong, and know that the act is wrong, yet his will, by which I mean the governing power of his mind, has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.” This was substantially what had been held by this court in previous cases. Life Ins. Co. v. Terry, 15 Wall. 580; Bigelow v. Berit shire Life Ins. Co., 93 U. S. 284; Insurance Co. v. Rodel, 95 U. S. 232; Manhattan Life Lns. Co. v. Broughton, 109 U. S. 121; Connecticut Life Ins. Co. v. Lathrop, 111 U. S. 612; Accident Lns. Co. v. Crandal, 120 U. S. 527. In Terry's case, above cited, — which was an action upon a life policy declaring the policy void if the assured died by his own hand, — it became necessary to instruct the jury on the subject of insanity. The court said: “We hold the rule on the question before us to be this: If the assured, being in the possession of his ordinary reasoning faculties, from anger, pnde, jealousy or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary 150 OCTOBER TERM, 1897. Opinion of the Court. act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.” Recurring to the ruling of the court in the present case, it is not perceived that the plaintiff had any ground to complain that its definition of insanity was too strict or too narrow. His fifth point, in general terms, defined insanity as being a condition in which the reasoning faculties are so far impaired that the person alleged to be insane when committing selfdestruction was unable to understand the moral nature of his act, even if he understood its physical nature. This definition was not rejected. On the contrary, it was accepted, the court at the time making some observations deemed necessary to show what, in law, was meant by the words “ moral nature of his act.” By those observations, the jury were informed that if the assured understood what he was doing, and the consequences of his act or acts to himself and to others — that is, if he understood, as a man of sound mind would, the consequences to follow from his contemplated suicide, to himself, his character, his family and others, and was able to comprehend the wrongfulness of what he was about to do, as a sane man would — then he was to be regarded as sane; otherwise, not. It is suggested that the attention of the jury should have been brought specifically or more directly to the fact that unsoundness of mind exists when there is an impulse to take life which weakened mental and moral powers cannot withstand — a condition in which there is no continued existence of a governing will strong enough to resist the tendency to self-destruction. But the words of the charge, although of a general character, substantially embodied these views. The court stated the principal elements of a condition of sanity as contrasted with insanity. What it said was certainly as specific as the instruction asked by the plaintiff. If the plain- BITTER v. MUTUAL LIFE INSURANCE CO. 151 Opinion of the Court. tiff desired a more extended definition of insanity than was given, his wishes, in that respect, should have been made known. The court having affirmed his view of what was evidence of insanity, and such affirmance having been accompanied by observations that brought out with more distinctness and fulness what was meant by the words “ moral character of his act,” the plaintiff has no ground to complain; for nothing said by the court upon the question of insanity was erroneous in law or inconsistent with that which the plaintiff asked to be embodied in the charge. No error of law having been committed in respect of the issue as to the insanity of the assured, it is to be taken as the result of the verdict that he was of sound mind when he took his life. This brings us to the question whether the insurance company was liable — assuming that it was not a part of the contract enforceable in Pennsylvania, that the assured should “ not die by his own act whether sane or insane,” within two years from the date of the policy. It is contended that the court erred in saying to the jury, as in effect it did, that intentional self-destruction, the assured being of sound mind, is in itself a defence to an action upon a life policy, even if such policy does not, in express words, declare that it shall be void in the event of self-destruction when the assured is in sound mind. But is it not an implied condition of such a policy that the assured will not purposely, when in sound mind, take his own life, but will leave the event of his death to depend upon some cause other than wilful, deliberate self-destruction? Looking at the nature and object of life insurance, can it be supposed to be within the contemplation of either party to the contract that the company shall be liable upon its promise to pay, where the assured, in sound mind, by destroying his own life, intentionally precipitates the event upon the happening of which such liability was to arise? Life insurance imports a mutual agreement, whereby the insurer, in consideration of the payment by the assured of a named sum annually or at certain times, stipulates to pay a 152 OCTOBER TERM, 1897. Opinion of the Court. larger sum at the death of the assured. The company takes into consideration, among other things, the age and health of the parents and relatives of the applicant for insurance, together with his own age, course of life, habits and present physical condition; and the premium exacted from the assured is determined by the probable duration of his life, calculated upon the basis of past experience in the business of insurance. The results of that experience are disclosed by standard life and annuity tables showing at any age the probable duration of life. These tables are deemed of such value that they may be admitted in evidence for the purpose of assisting the jury in an action for personal injury, in which it is necessary to ascertain the compensation the plaintiff is entitled to recover for the loss of what he might have earned in his trade or profession but for such injury. Vicks-burg d? Meridian Railroad v. Putnam, 118 U. S. 545, 554. If a person should apply for a policy expressly providing that the company should pay the sum named if or in the event the assured, at any time during the continuance of the contract, committed self-destruction, being at the time of sound mind, it is reasonably certain that the application would be instantly rejected. It is impossible , to suppose that an application of that character would be granted. If experience justifies this view, it would follow that a policy stipulating generally for the payment of the sum named in it upon the death of the assured, should not be interpreted as intended to cover the event of death caused directly and intentionally by self-destruction whilst the assured was in sound mind, but only death occurring in the ordinary course of his life. That the parties to the contract did not contemplate insurance against death caused by deliberate, intentional selfdestruction when the assured was in sound mind, is apparent from the “ provisions, requirements and benefits ” referred to in and made part of the policy. They show that the policy was issued on the twenty-year distribution plan, and was to be credited with its distributive share of surplus apportioned at the expiration of twenty years from the date of issue; that, after three full annual premiums were paid, the company RITTER v. MUTUAL LIFE INSURANCE CO. 153 Opinion of the Court. would, upon the legal surrender of the policy, before default in the payment of any premium, or within six months thereafter, issue a non-participating policy for a paid up insurance, payable as provided, for the amount required by the provisions of the New York statute of May 21,1879, Laws of New York, c. 347; that the assured was entitled to surrender the policy at the end of the first period of twenty years “ and the full reserve computed by the American table of mortality, and four per cent interest, and the surplus, as defined above, will be paid therefor in cash; ” that if the assured surrendered the policy the total cash value at the option of the policy holder should be applied “to the purchase of an annuity for life, according to the published rates of the company at the time of surrender;” that after two years from the date of the policy the only conditions that should be binding on the holder of the policy were that “he shall pay the premiums at the time and place and in the manner stipulated in the policy, and that the requirements of the company as to age, and military or naval service in time of war shall be observed ; ” that in all other respects, if the policy matured after the expiration of two years, the payment of the sum insured should not be disputed; and that the party whose life was insured should always wear a suitable truss. These provisions of the contract tend to show that the death referred to in the policy was a death occurring in the ordinary course of the life of the assured, and not by his own violent act designed to bring about that event. In the case of fire insurance it is well settled that although a policy, in the usual form, indemnifying against loss by fire, may cover a loss attributable merely to the negligence or carelessness of the insured, unaffected by fraud or design, it will not cover a destruction of the property by the wilful act of the assured himself in setting fire to it, not for the purpose of avoiding a peril of a worse kind but with the intention of simply effecting its destruction. Much more should it be held that it is not contemplated by a policy taken out by the person whose life is insured and stipulating for the payment of a named sum to himself, his executors, administrators or assigns, 154 OCTOBER TERM, 1897. Opinion of the Court. that the company should be liable, if his death was intentionally caused by himself when in sound mind. When the policy is silent as to suicide, it is to be taken that the subject of the insurance, that is, the life of the assured, shall not be intentionally and directly, with whatever motive, destroyed by him when in sound mind. To hold otherwise is to say that the occurrence of the event upon the happening of which the company undertook to pay, was intended to be left to his option. That view is against the very essence of the contract. There is another consideration supporting the contention that death intentionally caused by the act of the assured when in sound mind—the policy being silent as to suicide — is not to be deemed to have been within the contemplation of the parties; that is, that a different view would attribute to them a purpose to make a contract that could not be enforced without injury to the public. A contract, the tendency of which is to endanger the public interests or injuriously affect the public good, or which is subversive of sound morality, ought never to receive the sanction of a court of justice or be made the foundation of its judgment. If, therefore, a policy — taken out by the person whose life is insured, and in which the sum named is made payable to himself, his executors, administrators or assigns — expressly provided for the payment of the sum stipulated when or if the assured, in sound mind, took his own life, the contract, even if not prohibited by statute, would be held to be against public policy, in that it tempted or encouraged the assured to commit suicide in order to make provision for those dependent upon him, or to whom he was indebted. Is the case any different in principle if such a policy is silent as to suicide, and the event insured against — the death of the assured — is brought about by his wilful, deliberate act when in sound mind? Light will be thrown on this question by some of the adjudged cases, having more or less bearing upon the precise point now before this court for determination. The plaintiff insists that the question just stated is answered in the affirmative by the opinion in Life Ins. Co. v. Terry, BITTER v. MUTUAL LIFE INSURANCE CO. 155 Opinion of the Court. 15 Wall. 580. As before stated, that was an action upon a life policy, containing the condition that it should be void if the assured should “ die by his own hand; ” and the controlling question was whether the condition embraced the case of an assured who committed self-destruction at a time when his reasoning faculties were so far impaired that he was unable to comprehend the moral character, the general nature, consequences and effect of the act he was about to commit, or when he was .impelled thereto by an insane impulse which he had not the power to resist. There was no question in that case as to the effect upon the rights of the parties of intentional self-destruction, where the policy contained no provision as to suicide. In the course of the review of the adjudged cases reference was made in the opinion of this court to Borradaile n. Hunter, 5 Mann. & Gr. 639, and also to Hartman v. Keystone Ins. Co., 21 Penn. St. 466, 479. In the former case it appeared that the assured threw himself into the Thames and was drowned, and the jury found that he voluntarily threw himself into the water, knowing at the time that he should thereby destroy his life, and intending thereby to do so, but at the time of committing the act he was not capable of judging between right and wrong. The question was as to the liability of the insurance company on a policy issued to the assured containing a clause or proviso that the policy should be void if “ the assured should die by his own hands, or by the hands of justice, or in consequence of a duel.” Maule, Erskine and Coltman, JJ., held that the company was not liable, while Tindall, C. J., was of the opinion that the proviso embraced cases of felonious suicide only, and not cases of self-destruction whilst the assured was under the influence of frenzy, delusion or insanity. In the latter case it appeared that the assured committed selfdestruction by taking arsenic. The Supreme Court of Pennsylvania held that there could be no recovery, Chief Justice Black saying: “ The conditions of the policy are, that it shall be null and void ‘if the assured shall die by his own hand, in or in consequence of a duel, or by the hands of justice,’ etc. The plaintiff argues that the first clause here quoted 156 OCTOBER TERM, 1897. Opinion of the Court. does not embrace a suicide committed by swallowing arsenic. Where parties have put their contracts in writing their rights are fixed by it. But the contract is what they meant it to be, and when we can ascertain their meaning from the words they have used, we must give it effect. One rule of interpretation is, that we must never attribute an absurd intent if a sensible one can be extracted from the writing. No absurdity could be greater than a stipulation against suicide in a duel. The words ‘ die by his own hand,’ must, therefore, be disconnected from those which follow. Standing alone, they mean any sort of suicide. Besides this, the court was very plainly right in charging that if no such condition had been inserted in the policy, a man who commits suicide is guilty of such a fraud upon the insurers of his life that his representatives cannot recover for that reason alone.” Mr. Justice Hunt, delivering the opinion in Terry's case, made an observation in relation to the two cases just cited which is supposed to be favorable to the plaintiff’s contention. He said: “In Hartman v. Keystone Ins. Co. the doctrine of BorradaiU v. Hunter was adopted, with the confessedly unsound addition that suicide would avoid a policy although there was no condition to that effect in the policy.” This observation of the learned justice was irrelevant to the case before the court, and cannot be regarded as determining the point in judgment. If it was meant there could be a recovery by the personal representative of an assured who took out the policy, and who, in sound mind, took his own life — the policy being silent in reference to suicide — we cannot concur in that view. In N. Y. Hut. Life Ins. Co. v. Armstrong, 117 IT. S. 591, 600, which was an action by the assignee of a life policy, the defence, in part, being that the assignee murdered the assured in order to get the benefit of the policy, Mr. Justice Field, speaking for this court, said: “ Independently of any proof of the motives of Hunter [the assignee] in obtaining the policy, and even assuming that they were just and proper, he forfeited all rights under it, when, to secure its immediate payment, he murdered the assured. It would be a reproach to RITTER v. MUTUAL LIFE INSURANCE CO. 157 Opinion of the Court. the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that be had wilfully fired.” In Hatch v. Mutual Life Ins. Co., 120 Mass. 550, 552, it appears that a policy of insurance on the life of a married woman provided that “ if the said person whose life is hereby insured shall die by her own act or hand, whether sane or insane, the policy should be null and void.’1 It was in proof that the assured died by reason of a miscarriage produced by an illegal operation performed upon and voluntarily submitted to by her with intent to cause an abortion, and without any justifiable medical reason for such an operation. The court, observing that this voluntary act on the part of the assured was condemned alike by the laws of nature and by the laws of all civilized States, and was known by the assured to be dangerous to life, said : “ We are of opinion that no recovery can be had in this case, because the act on the part of the assured causing death was of such a character that public policy would preclude the defendant from insuring her against its consequences ; for we can have no question that a contract to insure a woman against the risk of her dying under or in consequence of an illegal operation for abortion would be contrary to public policy, and could not be enforced in the courts of this Commonwealth.” The report of the case shows that it was decided without reference to the questions raised by the special clauses of the policy. The subject was considered by the Supreme Court of Alabama in Supreme Commandery &c. v. Ainsworth, 7i Alabama, 436, 446. Chief Justice Brickell, delivering the unanimous judgment of that court, said: “In all contracts of insurance, there is an implied understanding or agreement that the risks insured against are such as the thing insured, whether it is property, or health, or life, is usually subject to, and the assured cannot voluntarily and intentionally vary them. Upon principles of public policy and morals, the fraud, or the criminal misconduct of the assured is, in contracts of marine or of fire insurance, an 158 OCTOBER TERM, 1897. Opinion of the Court. implied exception to the liability of the insurer. Waters v. Merchant^ Louisville Ins. Co., 11 Pet. 213 ; Citizens'1 Ins. Co. v. Harsh, 41 Penn. St. 386; Chandler v. Worcester Hut. Fire Ins. Co., 3 Cush. 328. Death, the risk of life insurance, the event upon which the insurance money is payable, is certain of occurrence; the uncertainty of the time of its occurrence is the material element and consideration of the contract. It cannot be in the contemplation of the parties, that the assured, by his own criminal act, shall deprive the contract of its material element; shall vary and enlarge the risk, and hasten the day of payment of the insurance money. The doctrine asserted in Fauntleroy1 s case, that death by the hands of public justice, the punishment for the commission of crime, avoids a contract of life insurance, though it is not so expressed in the contract, has not, so far as we have examined, been questioned, though the case itself may have led to the very general introduction of the exception into policies. The same considerations and reasoning which support the doctrine seem to lead, of necessity, to the conclusion, that voluntary, criminal self-destruction, suicide, as defined at common law, should be implied as an exception to the liability of the insurer, or, rather, as not within the risks contemplated by the parties, reluctant as the courts may be to introduce by construction or implication exceptions into such contracts, which usually contain special exceptions.” Again: “ The fair and just interpretation of a contract of life insurance, made with the assured, is, that the risk is of death proceeding from other causes than the voluntary act of the assured, producing, or intended to produce it;” and that “the extinction of life by disease, or by accident, not suicide, voluntary and intentional, by the assured, while in his senses, is the risk intended; and it is not intended that, without the hazard of loss, the assured may safely commit crime.” In support of the general proposition that the law will not enforce contracts and agreements that are against the public good, and, therefore, are forbidden by public policy, reference is often made to the case of The .Amicable Society &c. v. Bolland, 4 Bligh, N. S. 194, 211, known as Fauntleroy's case. r BITTER v. MUTUAL LIFE INSURANCE CO. 159 Opinion of the Court. That was an action by assignees in bankruptcy to secure the amount due on a policy of insurance stipulating for the payment of a certain sum, upon the death of Fauntleroy, to his executors, administrators or assigns. The assured was convicted of forgery, and for that offence was executed. The Lord Chancellor, after observing that the question was whether the parties representing and claiming under one who effects insurance upon his life, and afterwards commits a capital felony, for which he was tried and executed, could recover the amount named in the policy, said : “ It appears to me that this resolves itself into a very plain and simple consideration. Suppose that in the policy itself this risk had been insured against: that is, that the party insuring had agreed to pay a sum of money year by year, upon condition, that in the event of his committing a capital felony, and being tried, convicted and executed for that felony, his assignees shall receive a certain sum of money — is it possible that such a contract could be sustained ? Is it not void upon the plainest principles of public policy ? Would not such a contract (if available) take away one of those restraints operating on the minds of men against the commission of crimes ? namely, the interest we have in the welfare and prosperity of our connections? Now, if a policy of that description, with such a form of condition inserted in it in express terms, cannot, on grounds of public policy, be sustained, how is it to be contended that in a policy expressed in such terms as the present, and after the events which have happened, that we can sustain such a claim ? Can we, in considering this policy, give to it the effect of that insertion, which if expressed in terms would have rendered the policy, as far as that condition went at least, altogether void ? ” Referring to that case, Bunyon in his work on Life Insurance says: “ It would render those natural affections which make every man desirous of providing for his family, an inducement to crime; for the case may be well supposed of a person insuring his life for that purpose, with the intention of committing suicide. For a policy, moreover, to remain in force when death arose from any such cause would be a fraud 160 OCTOBER TERM, 1897. Opinion of the Court. upon the insurers, for a man’s estate would thereby benefit by his own felonious act. Hence the rule of law when there is no condition whatever, but in that case, if the suicide or selfdestruction takes place when the assured is insane and not accountable for his acts, the rule arising from public policy does not apply, and his representatives are entitled to the policy money.” 3d ed. p. 96; 2d ed. p. 72. In Moore v. Woolsey, 4 Ell. & Bl. 243, 254, in which the question was as to the rights of an assignee under a policy providing that if the assured should die by duelling or by his own hand, or the hand of justice, it should be void as to the personal representative of the assured, Lord Campbell, C. J., said that, “ if a man insures his life for a year, and commits suicide within the year, his executors cannot recover on the policy, as the owner of a ship who insures her for a year cannot recover upon the policy if within the year he causes her to be sunk: a stipulation that, in either case, upon such an event the policy should give a right of action, would be void.” For the reasons we have stated, it must be held that the death of the assured, William M. Bunk, if directly and intentionally caused by himself, when in sound mind, was not a risk intended to be covered, or which could legally have been covered, by the policies in suit. The case presents other questions, but they are of minor importance, and do not affect the substantial rights of the parties. We perceive no error of law in the record, and the judgment is Affirmed. Mr. Justice Peckham did not take part in the consideration or decision of this case. BENJAMIN v. NEW ORLEANS. 161 Opinion of the Court. BENJAMIN v. NEW ORLEANS. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 188. Argued January 10, 1898. — Decided January 81, 1898. After the answers of this court to the questions of the Circuit Court of Appeals in this case, reported in New Orleans v. Benjamin, 153 U. S. 411, Benjamin amended his bill in the Circuit Court by inserting an averment that “each of said persons in whose favor said claims accrued and to whom said certificates were issued, are now, and were on the 9th day of February, 1891, citizens respectively of States other than the State of Louisiana, and competent as such citizens to maintain suit in this honorable court against the defendants for the recovery of said indebtedness, represented by said certificates, if no assignment or transfer thereof had been made.” The city demurred on the ground that the case was not one of equitable cognizance, and that the amendment was insufficient to show jurisdiction. This demurrer was sustained in the Circuit Court, and the Circuit Court of Appeals affirmed its decree because the necessary diversity of citizenship was not affirmatively shown. Held, that this judgment of the Circuit Court of Appeals was final, and could not be appealed from. The case is stated in the opinion. Mr. J. D. Rouse for appellant. Mr. William, Grant was on his brief. Mr. Branch K. Miller for appellees. Mr. Chief Justice Fuller delivered the opinion of the court. This was a bill filed by Henry W. Benjamin, “ an alien and a subject of the Kingdom of Great Britain,” on February 9, 1891, in the Circuit Court of the United States for the Eastern District of Louisiana, “ against the city of New Orleans, a municipal corporation, created by the laws of the State of Louisiana and a citizen of said State; the city of Kenner, also a municipal corporation created by the laws of and a citizen of said State ; the Police Jury of the Parish of Jefferson and VOL. CLXIX—11 162 OCTOBER TERM, 1897. Opinion of the Court. the Police Jury of the Parish of St. Bernard, political corporations created by the laws of and citizens of said State,” seeking to collect, in the manner and on the grounds therein set forth, certain Metropolitan Police warrants or certificates. The defendants other than the city of New Orleans seem to have dropped out in the course of the proceedings. The jurisdiction of the Circuit Court was attacked by defendant but was maintained, and a decree entered in favor of complainant, from which defendant appealed to the Circuit Court of Appeals for the Fifth Circuit, whereupon that court certified certain questions to this court, by the answers to which it was determined that no such dispute or controversy arose in the case as gave jurisdiction to the Circuit Court without regard to the diverse citizenship of the parties, and that as the suit was, under the pleadings, a suit to recover the contents of choses in action within the meaning of the judiciary acts of 1887 and 1888, by the assignee thereof, and it did not appear that it could have been brought in that court by the assignors, the jurisdiction of the Circuit Court could not be maintained on the ground of diverse citizenship. New Orleans n. Benjamin^ 153 U. S. 411. On receipt of the answers certified from this court, the Circuit Court of Appeals reversed the decree of the Circuit Court and ordered that court to dismiss the bill, unless by amendment its jurisdiction could be made affirmatively to appear. Thereupon complainant amended the bill by inserting the following: “ And your orator avers that each of said persons in whose favor said claims accrued and to whom said certificates were issued, are now, and were on the 9th day of February, 1891, citizens respectively of States other than the State of Louisiana, and competent as such citizens to maintain suit in this honorable court against the defendants for the recovery of said indebtedness, represented by said certificates, if no assignment or transfer thereof had been made.” The city of New Orleans demurred for the reasons that the case was not one of equitable cognizance, and that the amendment was insufficient to show jurisdiction. The Circuit Court sustained the demurrer on both grounds and dismissed the BENJAMIN v. NEW ORLEANS. 163 Opinion of the Court. bill, (71 Fed. Rep. 758,) whereupon the cause was taken to the Circuit Court of Appeals, which affirmed the decree because the necessary diversity of citizenship was not affirmatively shown. 41 U. S. App. 178. The case was not brought here directly from the Circuit Court of the United States on the question of the jurisdiction of that court as such, nor did the Circuit Court of Appeals, when the case came before it for the second time, certify any question on which it desired our instruction. On the contrary, this is an appeal from a judgment of the Circuit Court of Appeals affirming the decree of the Circuit Court, and the inquiry at once presents itself as to our jurisdiction to entertain such appeal. By the sixth section of the judiciary act of March 3, 1891, the judgments or decrees of the Circuit Courts of Appeals are made final in certain classes of cases, and, among others, “ in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy, being aliens and citizens of the United States, or citizens of different States.” This case confessedly did not belong to either of the other classes, and if it fell within the class just mentioned, this appeal will not lie. The judicial power extends to controversies between citizens of different States; and between citizens of a State and citizens or subjects of foreign States; but from the judiciary act of 1789 to the act of August 13, 1888, it has been provided in substance, (the differences being immaterial here,) that no Circuit Court shall “ have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any as-signee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made.” And, to avoid the operation of this limitation, it is necessary in such cases that the record should show that the suit could have been maintained in the Circuit Court in the name of the assignor. Parker v. Ormsby, 141 U. S. 81. 164 OCTOBER TERM, 1897. Opinion of the Court. As this suit stood, after it had been determined that the jurisdiction of the Circuit Court could not be invoked on the ground that the cause of action arose under the Constitution or laws of the United States, the jurisdiction rested on the fact that the complainant was an alien and the defendant a citizen of Louisiana, although, by reason of the restriction, it was also essential that it should appear that complainant’s assignors might have brought suit in the Circuit Court if they had not assigned their claims. But the jurisdiction was none the less dependent on diverse citizenship as between complainant and defendant because it might be defeated if complainant did not bring himself within the restriction. The diverse citizenship of the assignors of the claims was not another ground of jurisdiction than the diverse citizenship of complainant and defendant, and the sixth section, in referring to cases in which the jurisdiction is dependent entirely on diverse citizenship between the opposite parties to the suit or controversy, refers to cases where no other distinct ground of jurisdiction is relied on. It frequently happens that more than one ground is set up as between the same parties, and also separate and different grounds in respect of one or more of several parties. We think the case, within the intent and meaning of that section, clearly belongs to the class in which the judgments and decrees of the Circuit Court of Appeals are made final. Appeal dismissed. Mr. Justice White took no part in the consideration and decision of this case. CESSNA V. UNITED STATES. 165 Statement of the Case. CESSNA v. UNITED STATES. APPEAL FROM THE COUET OF PBIVATE LAND CLAIMS. No. 78. Argued and submitted January 4,1898. —Decided February 21,1898. The decision of the Court of Private Land Claims that the ayuntamiento of El Paso had no power to make a grant, like the one in controversy in this case, entirely outside of the four square leagues supposed to belong to El Paso, and that even if it had such power, the conditions of the alleged grant were never performed by the grantee, and therefore that he acquired no title to the property, was correct. On January 9, 1893, the appellants as plaintiffs filed their petition in the Court of Private Land Claims, praying that their title to a tract of land in the Territory of New Mexico, and near to the city of El Paso, Texas, be confirmed. The plaintiffs named as defendants, besides the United States, the unknown owners of the Dona Ana Bend Colony, Mesilla Colony and Bracito Grants. The United States as well as certain individuals representing themselves to be the owners of these grants appeared and answered. Thereafter a trial was had, and on June 26, 1895, the court entered a decree, finding that the plaintiffs’ claim of a land grant had not been sustained by satisfactory proof, and dismissing the petition. From such decree the plaintiffs brought this appeal. The facts disclosed by the record, and about which there is little dispute, were substantially as follows: In April, 1823, one Doctor John Heath, or Juan Gid, as his name is written in the Spanish, petitioned the ayuntamiento or general council of El Paso for a grant of a tract of land, which petition was acted upon by the ayuntamiento, and a tract five leagues square was granted to him.» This petition was in these words: Dr. Don Juan Gid, citizen of the United States of North merica, in the best legal form allowed by law, appears efore your honorable body and states: That, not having received up to date any answer to the communication of ecember last of last year, which I presented to the former 166 OCTOBER TERM, 1897. Statement of the Case. ayuntamiento, the predecessor of your honorable body, which (communication), approved in all its parts, was forwarded to His Imperial Majesty by the same, for which reason and because of the increase (ampleacion) of the power which is given to your honorable body by the law of colonization which was issued by the National Instituent Assembly (Junta) of the Empire on the 3d of January of the present year. For these reasons I again have recourse through this, repeating my request to your honorable body, adding that I offer to bring for the settlement of the land of El Bracito, which I ask may be given to me, thirty families of Christian Catholics, and among them blacksmiths, gunsmiths, silversmiths, carpenters, tailors, shoemakers, saddlers, architects, mathematicians, chemists, mineralogists, surgeons, doctors of medicine, and to establish a hospital with its corresponding drug store and proper stock therein, with the necessary instruments for all operations; also to build a warehouse supplied with all kinds of merchandise for wholesale; the necessary machines for the manufacture of cotton and cloth goods, another for the manufacture of gunpowder, offering, until payment of the expense of transportation, to furnish the amount of this article all this jurisdiction may need at the very low price of one dollar per pound; it being first class for the use of arms ; with the understanding that in all the said trades there shall be admitted for instruction the youths whose parents may see fit to dedicate them thereto; the children of this country (suelo) having the preference thereto, “ In view of what has been said and because, for establishing the said machinery, utilizing the farms, grazing stock and for the other field interests, it is indispensable that it have the extension which is necessary therefor, it behooves me to demonstrate to your honorable body that the land which may be assigned to me, limiting me to the smallest amount, be at least enough for (sea lo menos para) an hacienda, and that said designation be made for me on both sides, that is to say, that it be on both sides of El Bracito, because the said land being broken it is necessary to leave out various portions of it. I also propose to your honorable body that, until time CESSNA V. UNITED STATES. 167 Statement of the Case. permits whatever else may be desirable, this settlement be attached to the parish of this jurisdiction : likewise that the pasture and woodlands be common, with the same privilege as other people of this locality : recommending that it be without prejudice to those farms (sementeras), and that the petitioner be the person to whom is entrusted the distribution of said lands, he being considered the legitimate justice of said families. “ Candor of mind being what I most appreciate, and to join myself with my brethren, the faithful inhabitants of this Empire, living always in the simple peace, in order to dispel all rumors of hatred, I ask your honors that, you being pleased, and in order that the said law of colonization be executed in all its parts, notice of this, my petition, be given to the individuals of this jurisdiction, in order that all these gentlemen who like may better or equal it with a view to the right of preference, in which act your honorable body, to whom is entrusted the power of father of this country (patria), will weigh at their true value, the incalculable benefits that result from my petition whereupon, far from seeking means to deprive it thereof, it would be encouraged in every way to procure their increase. “Wherefore, I ask and petition your honorable body to be pleased to accede to what I petition, being pleased to pardon the fault that this my petition is not upon paper of the proper seal, for there is none in this place, I being ready to pay the fees that belong to the national treasury. I protest that I do not act in bad faith, and the necessary, etc. “ Paso, April 7th, 1823. “Juan Gid.” Certain proceedings were had upon this petition, which it is unnecessary to mention in detail. On April 22 this order was made by the ayuntamiento: “ This ayuntamiento having on this day received that which by its order was to be executed by the commission appointed from its midst to do the surveying that was to be done in the land of El Bracito, this being five leagues in each direction, 168 OCTOBER TERM, 1897. Statement of the Case. the whole of it composing an 1 hacienda,’ according to article 5 of the colonization plan ; which land was granted by this ayuntamiento to Don Juan Gid for the purpose of settlement as stated afterwards, and he being satisfied with what was done in all its parts by the said commission, it was entered as a minute in due witness thereof the president and other members of which that is composed signing it before me, the secretary, to which I certify. José Ygnacio Rascon, José Morales, José Maria Belarde, José Francisco Carbajal, Juan Maria Barela, Antonio Prudencio, José Maria García, Saturnino Aguiar, José Manuel García, Lorenzo Provencio, José Albares. “ Juan Maeia Ponce De Leon, Secretary” And on the 25th the following : “ The present expediente in which there has been granted to Don Juan Gid, Anglo-American of the United States, the lands of El Bracito for settlement being considered by this ayuntamiento as closed, proceed to what is to be done under the tariff in force in this ayuntamiento and by its secretary that Juan Gid may know what fees he is to pay for what has been done therein placing the original in the archive as a perpetual testimony, but nevertheless to this shall be sent, together with a certified copy, by the first mail or safe-conduct to the governor of this province for his superior information ; another of the same kind being given to the party in interest for his protection. And by the present order the president and members of this corporation so determined and signed it, before me, the secretary, to which I certify. José Ygnacio Rascon, José Morales, José Maria Belarde, José Francisco Carbajal, Saturnino Aguiar, José Manuel García, Lorenzo Provencio. “Juan Maeia Ponce De Leon, Secretary'' il It is a copy of the original expediente which on petition of Don Juan Gid was made in order to grant to him for settlement the land of El Bracito, in accordance with the colonization plan, together with what is afterward stated : which original remains accordingly in the archive, to which I certify. “Juan Maeia Ponce De Leon, Secretary, [eubeic.] CESSNA V. UNITED STATES. 169 Statement of the Case. A copy of these proceedings was sent to the governor of the province, and the following action was taken by the provincial deputation : “In the session of the 17th of the present month the acting governor of this province, Captain José Antonio Vizcarra, presented to this deputation the reports which your honorable body makes to him in an undated official communication which said chief received ; and he also presented another official letter, dated the 26th of last April, accompanied by a copy of the proceedings had by your honorable body in giving to the foreigner Mr. John Heath, at the Bracito, possession of land belonging to the people of that jurisdiction. “ The deputation in the same session resolved to express to your honorable body the surprise it felt at the violent and mistaken procedure with which you conducted yourselves in giving land to foreigners, not only with prejudice to the inhabitants of that jurisdiction, but also in violation of the same law of which your honorable body availed itself in order to carry into effect the possession referred to, thus opening the door to the continual complaints of its people: this deputation refraining from making other observations to your honorable body, on account of the colonization law, which was the moving cause in the concession of the Bracito land to the said Heath having been repealed ; but proceeding to direct your honorable body that, in order not to make itself responsible for damages which the foreigner might claim if he should introduce into this province the families that he offers to bring, it should notify the said Heath, through the plenipotentiary of the United States resident in New Mexico, or in some other manner which it may deem more prompt and effective, that the possession which has been given to him at the Bracito, belonging to that jurisdiction of El Paso, was through a mistaken opinion and wrong understanding in relation to the colonization law already repealed. “And I communicate it to you by direction of the said deputation, with the understanding that I shall communicate to you the decision that may be arrived at when the petition 170 OCTOBER TERM, 1897. Statement of the Case. of Mr. Albo and the other persons of that town shall have been discussed, your honorable body notifying me of the receipt of and compliance with these instructions. “ God preserve your honorable body many years. “ Santa Fe, June 19^ 1823, the third year of independence and the second of liberty. “Francisco Javier Chavez, [scroll.] “Juan Bautista Vigil, [scroll.] “ Deputy Secretary ? It does not appear that notice of this action of the provincial deputation was at the time communicated to Heath, for soon after the final order of the ayuntamiento he returned to this country and to the State of Missouri, of which State he had theretofore been a citizen, made a disposition of his property, and collected a body of colonists, with whom, in the year 1824, he proceeded to El Paso, with a view of taking possession of this tract of land. Instead of being permitted to occupy the tract, he was banished from the country, forced to abandon the property that he had brought with him, and sent back to the United States a bankrupt. He returned to Missouri, where he lived until he died, in the year 1851. Petitioners claim under him. The national colonization law of January 4, 1823, under which these proceedings were had, is, so far as it can have any application to the present case, translated by Rockwell (Rockwell’s Spanish Laws, p. 617) as follows: “Art. 1. The government of the Mexican nation will protect the liberty, property and civil rights of all foreigners, who profess the Roman Catholic apostolic religion, the established religion of the Empire. “ Art. 2. To facilitate their establishment, the executive will distribute lands to them, under the conditions and terms herein expressed. “Art. 3. The empresarios, by whom is understood those who introduce at least two hundred families, shall previously contract with the executive, and inform it what branch of industry they propose to follow, the property or resources they CESSNA V. UNITED STATES. 171 Statement of the Case. intend to introduce for that purpo.se; and any other particulars they may deem necessary, in order that with this necessary information, the executive may designate the province to which they must direct themselves; the lands which they can occupy with the right of property, and the other circumstances which may be considered necessary. “ Art. 4. Families who emigrate, not included in a contract, shall immediately present themselves to the ayuntamiento of the place where they wish to settle, in order that this body, in conformity with the instructions of the executive, may designate the lands corresponding to them, agreeably to the industry which they may establish. “ Art. 5. The measurement of land shall be the following: Establishing the vara at three geometrical feet, a straight line of five thousand varas shall be a league; a square, each of whose sides shall be one league, shall be called a sitio; and this shall be the unity of counting one, two or more sitios; five sitios shall compose one hacienda.” “Art. 7. One labor shall be composed of one million square varas, that is to say, one thousand varas on each side, which measurement shall be the unity for counting one, two or more labors. These labors can be divided into halves and quarters, but not less. “ Art. 8. To the colonists, whose occupation is farming, there cannot be given less than one labor, and to those whose occupation is stock raising, there cannot be given less than one sitio. “ Art. 9. The government of itself or by means of the authorities authorized for that purpose, can augment said portions of land as may be deemed proper, agreeably to the conditions and circumstances of the colonists. Art. 10. Establishments made under the former government which are now pending, shall be regulated by this law m all matters that may occur, but those that are finished shall remain in that state. Art. 11. As one of the principal objects of laws in free governments ought to be to approximate, so far as is possible, to an equal distribution of property, the government, taking 172 OCTOBER TERM, 1897. Statement of the Case. into consideration the provisions of this law, will adopt measures for dividing out the lands, which may have accumulated in large portions, in the hands of individuals or corporations and which are not cultivated, indemnifying the proprietors for the just price of such lands to be fixed by appraisers.” “Art. 19. To each empresario, who introduces and establishes families in any of the provinces designated for colonization, there shall be granted at the rate of three haciendas and two labors, for each two hundred families so introduced by him, but he will lose the right of property over said lands should he not have populated and cultivated them in twelve years from the date of the concession. The premium cannot exceed nine haciendas and six labors, whatever may be the number of families he introduces. “ Art. 20. At the end of twenty years the proprietor of the lands, acquired in virtue of the foregoing article, must alienate two thirds part of said lands, either by sale, donation, or in any other manner he pleases. The law authorizes him to hold in full property and dominion one third part. “ Art. 21. The two foregoing articles are to be understood as governing the contracts made within six months, as after that time, counting from the day of the promulgation of this law, the executive can diminish the premium as it may deem proper, giving an account thereof to Congress, with such information as may be deemed necessary. “ Art. 22. The date of the concessions for lands constitutes an inviolable law for the right of property and legal ownership ; should any one through error, or by subsequent concession, occupy land belonging to another, he shall have no right to it, further than a preference in case of sale, at the current price. “ Art. 23. If, after two years from the date of concession, the colonist should not have cultivated his land, the right of property shall be. considered as renounced, in which case the respective ayuntamiento can grant it to another. “ Art. 24. During the first six years from the date of the concession the colonists shall not pay tithes, duties on their produce, nor any contribution under whatever name it may be called. CESSNA V. UNITED STATES. 173 Statement of the Case. « Art. 25. The next six years from the same date they shall pay half tithes, and the half of the contributions, whether direct or indirect, that are paid by the other citizens of the empire. After this time they shall in all things relating to taxes and contributions, be placed on the same footing with the other citizens.” « Art. 29. Every person shall be free to leave the empire, and can alienate the lands over which he may have acquired the right of property, agreeably to the tenor of this law, and he can likewise take away from the country all his property, by paying the duties established by law.” There is a dispute as to the proper translation of section 4, the original of which is : “ Art. 4. Las familias que por si mismas vengan á establecerse, se presentarán immediatamente al respectivo Ayuntamiento del lugar en que quieran radicarse, para que conforme á las órdenes con que se hallen del Gobierno se les designe por aquel cuerpo el terreno que les corresponda según la industria que van á plantear ; ” and a translation thereof, as furnished by Mr. Tipton, a special agent and Spanish expert of the Department of Justice in the office of the United States attorney for the Court of Private Land Claims, is : “ Art. 4. The families who come of themselves to settle shall present themselves immediately to the respective ayuntamiento of the place at which they desire to establish themselves in order that, in conformity with the orders which they have from the executive, there be designated to them by that body the lands to which they are entitled according to the industry which they are going to undertake.” At the time of the enactment of this colonization law Itur-bide was the Emperor of Mexico. Soon thereafter a revolution followed. He abdicated March 20, 1823, and his banishment was ordered by a decree of the Constituent Congress of Mexico, April 23, in these words : The Sovereign Constituent Congress of Mexico, in the session of yesterday, decreed the following : 1. That the coronation of Agustin de Iturbide being an 174 OCTOBER TERM, 1897. Statement of the Case. act of violence and of force, and void in law, there is no occasion to discuss the abdication he makes of the crown. “2. Consequently, it also declares as void the hereditary succession and the titles that have emanated from the coronation ; and that all the acts of the late government, from the 19th of May to the 29th of March last, are illegal, but subject to revision by the present Congress for their confirmation or revocation. “ 3. The supreme executive authority will cause the prompt departure of Agustin de Iturbide from the territory of the nation.” Article 10 of the original draft of the treaty of Guadalupe Hidalgo, as agreed upon between the commissioners representing- this Government and Mexico, was as follows : “ Art. 10. All grants of land made by the Mexican Government, or by the competent authorities in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States, shall be respected as valid to the same extent that the same grants would be valid if the said territories had remained within the limits of Mexico. But the grantees of land in Texas, put in possession thereof, who, by reason of the circumstances of the country since the beginning of the troubles between Texas and the Mexican Government, may have been prevented from fulfilling all the conditions of their grants, shall be under the obligation to fulfil the said conditions within the periods limited within the same, respectively ; such periods to be now counted from the date of the exchange of ratifications of this treaty ; in default of which the said grants shall not be obligatory upon the State of Texas in virtue of the stipulations contained in this article. The foregoing stipulation in regard to grantees of land in Texas is extended to all grantees of land in the territories aforesaid elsewhere than in Texas, put in possession under such grants; and in default of the fulfilment of the conditions of any such grant within the new period, which, as above stipulated, begins with the day of the exchange of ratifications of this treaty, the same shall be null and void.” (Message of the President of the United States, transmitting papers relative to the treaty CESSNA V. UNITED STATES. 175 Statement of the Case. of Guadalupe Hidalgo, Feb. 8, 1849, Ex. Doc. 50, H. R. 30th Cong., 2d Sess. p. 17.) That article, however, was stricken out by the Senate of the United States, and in the message of President Polk the reasons for its rejection are stated in the following language (lb. 32): “The objection to the tenth article of the original treaty was not that it protected legitimate titles, which our laws would have equally protected without it, but that it most unjustly attempted to resuscitate grants which had become mere nullities, by allowing the grantees the same period after the exchange of the ratifications of the treaty, to which they had been originally entitled after the date of their grants, for the purpose of performing the conditions on which they had been made. In submitting the treaty to the Senate I had recommended the rejection of this article. That portion of it in regard to lands in Texas did not receive a single vote in the Senate. This information was communicated by the letter of the Secretary of State to the Minister of Foreign Affairs of Mexico, and was in possession of the Mexican Government during the whole period the treaty was before the Mexican Congress, and the article itself was reprobated in that letter in the strongest terms. Besides, our commissioners to Mexico had been instructed ‘ that neither the President nor the Senate of the United States can ever consent to ratify any treaty containing the tenth article of the treaty of Guadalupe Hidalgo in favor of grantees of land in Texas or elsewhere.’ And again, ‘should the Mexican Government persist in retaining this article, then all prospect of immediate peace is ended, and of this you may give them an absolute assurance.’ ” And in the treaty as ratified, 9 Stat. 922, were left the following provisions which guarantee only the rights of Mexicans to property belonging to them in the territory (9 Stat. $29, art. 8): “ Mexicans now established in territories previously belong-ing to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove 176 OCTOBER TERM, 1897. Counsel for Appellants. at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax or charge whatever. . . . In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.” The act creating the Court of Private Land Claims, (Act of March 3, 1891, c. 539, 26 Stat. 854,) provides in section 13, 26 Stat. 860: “ First. No claim shall be allowed that shall not appear to be upon a title lawfully and regularly derived from the government of Spain or Mexico, or from any of the States of the republic of Mexico having lawful authority to make grants of land, and one that if not then complete and perfect at the date of the acquisition of the territory by the United States, the claimant would have had a lawful right to make perfect had the territory not been acquired by the United States, and that the United States are bound, upon the principles of public law or by the provisions of the treaty of cession, to respect and permit to become complete and perfect if the same was not at said date already complete and perfect.” The eighth subdivision of the same section also contains this limitation: “No concession, grant or other authority to acquire land made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it shall appear that every such condition or requirement was performed within the time and in the manner stated in any such concession, grant or other authority to acquire land.” Mr. Robert Rae and Mr. J. B. Cessna for appellants. Mr-T. B. Catron was on their brief. CESSNA v. UNITED STATES. 177 Opinion of the Court. Mr. Solicitor General, Mr. Special Assistant Attorney General Reynolds and Mr. Frank Springer for appellees submitted on their brief. Mk. Justice Beewee, after stating the case, delivered the opinion of the court. The Court of Private Land Claims was of the opinion that the ayuntamiento or town council had no power to make a grant such as this of a tract entirely outside the four square leagues supposed to belong to the town; and, secondly, that even if it had such power the conditions of the alleged grant were never performed by Heath, and therefore he acquired no title to the property. The colonization law of January 4, 1823, was in force only a short time, having been suspended by the decree of April 11, 1823, and superseded by the law of August 18,1824. Few proceedings were had under it, and therefore its true meaning cannot be considered as determined by any settled usage of the Mexican authorities. Indeed, counsel for appellants, with all their industry, have been able to find but one other grant made or attempted to be made under its authority. It is, to say the least, difficult to discern in this law any warrant for an original grant by the ayuntamiento. Article 2 provides that “the executive will distribute lands.” This is in accord with the settled policy of the old Spanish law, which reserved to the king the power of granting lands. Doubtless this power was often exercised under the directions of the king by subordinate officials, but full control was retained by him. So here the executive retains the control of the distribution of lands. It is true the article provides that such distribution shall be “ under the conditionsand terms herein expressed,” but that simply means the conditions and terms under which the executive will act. Article 3 refers to grants to empre-sarios, and that specifically declares that they “shall previously contract with the executive,” who will “ designate the province to which they must direct themselves; the lands which they can occupy.” It is said that Heath does not come VOL. CLXIX—12 178 OCTOBER TERM, 1897. Opinion of the Court. within the terms of this article because he did not propose to introduce at least two hundred families, and this contention is doubtless correct. Article 4, upon which the plaintiffs specially rely, makes provision for families who emigrate “ not included in a contract,” evidently referring thereby to the empresario contracts specified in the preceding section. Such families are directed to “ present themselves to the ayuntamiento of the place where they wish to settle, in order that this body, in conformity with the instructions of the executive, may designate the lands corresponding to them, agreeably to the industry which they may establish.” Accepting the contention of plaintiffs that Heath comes within the scope of this article, we note these limitations: The emigrating families are to present themselves to the ayuntamiento of the “ place where they wish to settle,” not the ayuntamiento of the town nearest to the land upon which they wish to settle. The natural meaning of this is that when families desire to settle within the limits of a town they shall present themselves to the ayuntamiento of that town for a designation of the lands they may occupy. It would be strange to find that a town council was empowered to grant lands outside the limits of the town and anywhere within the territory or department in which it was situated, while it is not strange to find that council authorized to locate emigrants upon those vacant lands not exceeding four leagues square which, according to Spanish and Mexican custom, were ordinarily appurtenant and subject to the jurisdiction of the town. We do not mean to intimate that El Paso in fact possessed a territory of four square leagues over which it had jurisdiction, although that seems to have been the opinion of the Court of Private Land Claims, for it said: “ El Paso, like other Spanish towns, is presumed to have had a grant of four square leagues of land, and the ayuntamiento had the power to make allotments of land within the four leagues so granted.” This matter was considered in United States v. Santa Fs, 165 U. S. 675, 699, and the conclusion was reached after full examination that it was not true under the Spanish law that every town was entitled to a grant of four leagues square, the CESSNA V. UNITED STATES. 179 Opinion of the Court. court saying: “The inference to be deduced from all these documents supports the theory that under the Spanish laws, as found in the recopilación, all towns were not entitled by operation of law to four square leagues, but that at a late date the Spanish officials had adopted the theory that four square leagues was the normal quantity which might be designated as the limits of the new pueblos to be thereafter created.” Still it was undoubtedly true that by special grant or contract many towns did have such an area of contiguous and dependent territory, and it would seem that this article gave the ayuntamiento authority to designate such portion of those lands as it deemed suitable to the industry which the emigrating families proposed to undertake. We notice another limitation in this article, and that is that the designation by the ayuntamiento' is to be made “ in conformity with the instructions of the executive.” This contemplates, as preliminary to the action of the ayuntamiento, some instructions from the executive, either general or special. Within the letter of this provision the executive might, in a given case, authorize the ayuntamiento of a particular town to designate lands outside of the town lands proper for emigrating families; but surely in this article there is no general grant of power to every town council to give away lands anywhere within the territory or department without any previous instructions or directions from the executive. Neither is the power contended for to be found in article 23, which simply authorizes the ayuntamiento, in case any colonist shall fail to cultivate the land which has been given him, to regrant the same tract to another. It might well be that the ayuntamiento should have power after the lapse of a grant to regrant the same tract to another party. But it does not follow therefrom that the power to regrant lapsed lands implies a power to make an original grant. Neither is the plaintiffs’ case helped by the assertion that the fact of a grant presumes the power to make it. Counsel quote from United States v. Peralta, 19 How. 343, 347: “The presumption arising from the grant itself makes prima facie 180 OCTOBER TERM, 1897. Opinion of the Court. evidence of the power of the officer making it, and throws the burden of proof on the party denying it.” Whatever may be the scope of this proposition, we find in these proceedings a distinct declaration that the town council regarded its action as only preliminary, and requiring for finality the approval of the government. In the first resolution passed by the ayuntamiento on the petition of Dr. Heath it is recited: “ 1. That, saving the superior determination of the government to which this shall be given, his proposals and petition are admitted, and when he presents himself, the land he asks for shall be assigned to him in these terms : The head (toma) of the Bracito shall be the central point of the square of said ‘ hacienda; ’ that is to say, two and a half leagues in a straight line up the river, and two and a half leagues down the river, the same being observed in the sides that form the square.” And in the letter transmitting the proceedings to the governor it is said: “ The imitative circumstances of the new settlers and the fact that this corporation has no municipal ordinances regulating the distribution of land that may be useful and beneficial in promoting settlement, agriculture, arts, etc., place this corporation under the necessity of making known to your superiority the resolution, that your excellency may be pleased to dictate whatever may be your pleasure in the matter, whether it be by yourself or after consulting the most excellent provincial deputation.” And again — “ In order to avoid jealousies among 'private individuals and interests of some breeders of stock who generally are prejudicial to these in the development of agriculture, and arts, it is observed that this jurisdiction is just beginning, and at the same time gets poorer and poorer if it is not given or provided with industries and arts, and in order to have them in its territory a means therefor is that adopted by virtue of article 4, inasmuch as to reject it, difficulties would hereafter arise both because of the scarcity in the national exchequer and the poverty of these residents, for whom this ayunta- CESSNA V. UNITED STATES. 181 Opinion of the Court. ■miento, to which it very closely belongs to look out for their happiness, has without delay, put in operation the franchise of the law; this corporation stating, nevertheless, that if it has erred in anything, the concession has been made subject to the superior determination. * * * * * “This ayuntamiento has found it convenient and worthy of public confidence to bring all of the foregoing before your excellency and the most excellent provincial deputation, that you may, in view thereof, order what may be just and convenient to remove uncertainties and to proceed with certainty in every matter, which is what is desired.” So that the ayuntamiento assuming to act declared specifically that it did so “ subject to the superior determination,” and submitted its action to the governor of the province. Further, on the receipt of this communication by the acting governor, it was presented to the provincial deputation, which expressly disapproved the proposed grant, and directed that notice of its disapproval should be promptly communicated to Dr. Heath. The language of the resolution passed by the provincial deputation is clear. It declares that the action taken by the ayuntamiento was not only with prejudice to the inhabitants of that jurisdiction, but also in violation of law. It is true that it does not point out wherein the violation of law consists, and refrains from further observations on account of the repeal of the colonization law, but it does direct the ayuntamiento to give notice to Heath, through the United States minister, or in some other manner, that the possession given to him was “ through a mistaken opinion and wrong understanding in relation to the colonization law already repealed,” and that this notice should be given in order to prevent any claim for damages in case Dr. Heath should introduce into the province the families that he had offered to bring. Even if the disapproval had been based solely on the fact that the colonization law of 1823 had been repealed, that would have been sufficient, for whatever might be adjudged the power of the ayuntamiento, and although it might have made a grant without reference to the provincial depu- 182 OCTOBER TERM, 1897. Opinion of the Court. tation or the governor of the province, yet, for reasons which to it were satisfactory, it expressly declared that the grant was subject to their approval, and in case that approval was withheld, of course the grant never became operative. The other case to which counsel refer, in which the ayuntamiento assumed to act under the law of 1823, instead of supporting the contention that it had absolute power in the matter, tends in the other direction, and supports the opposite contention, for in that, as in this, it referred its action for approval to the governor of the province. That case was of a grant of a tract on the left side of the Rio Grande, made to Don José Lerma by this same ayuntamiento of El Paso, the proceedings in respect to which were introduced in evidence. They show that upon the petition of Lerma, on August 23, 1823, the ayuntamiento passed a resolution declaring that it deemed it proper to make the grant, but adding: “ Let all that has been done be brought to the knowledge of the most excellent deputation of Chihuahua in order that it may approve this grant, if it be its superior pleasure.” In pursuance of this resolution the application was presented to the deputation of Chihuahua, which on October 10, 1823, approved the proposed grant in the following words: “Agreeably to the resolution of the enlightened council of the town of El Paso, this most excellent deputation have deemed it proper to approve the grant of all the lands, woods and ‘sierras’ applied for by the resident Don José Lerma, it being of advantage to the nation to open fields and to form settlements resulting in public utility, that enlightened council being ordered to appoint a commission that shall proceed to survey these lands and to give possession to the party interested, in the name of the supreme powers of the nation, of the lands, ‘ sierras,’ woods and pasturages applied for by him on the left side of the Rio Bravo del Norte.” On the receipt of such approval on October 30, 1823, the ayuntamiento proceeded to pass this resolution: “ Having received the foregoing application and approbation of the most excellent provincial deputation of Chihuahua to granting and putting the resident Don José Lerma in pos- CESSNA V. UNITED STATES. 183 Opinion of the Court. session of the unimproved lands, woods, pasturages and ‘ sierras ’ for which he made application for the purpose of settling on the line of the Rio Bravo del Norte and on the left side from opposite the ‘ Ojo del Toro,’ or be it the ‘ Sierra de todos Santos,’ to the ‘ Sierra Blanca,’ the enlightened council of this town, in compliance with the order of said most excellent deputation, resolved to appoint a commission of respectable and honorable persons who shall proceed to survey and delineate those lands and to put said Don José Lerma in possession thereof.” It also appointed a commission to set off the tract to Lerma. On December 12, 1823, on the report of that commission, it entered the following order : “ The land grant applied for by the resident Don José Lerma being approved by the enlightened council and by the most excellent provincial deputation of the city of Chihuahua, as is evidenced by the foregoing proceedings carried on by the president of the appointed commission, who is also the president of this corporation, let this record be referred to its secretary for taxation of the per diem and writing therein, according to the tariff in force in this council, in order that the party interested may be informed of the fees he must pay.” Even this action did not seem to resolve all doubts as to the validity of this grant, for, in a petition presented by Lerma to the constitutional governor of the State of Chihuahua in 1828, he set forth the action of the ayuntamiento and the provincial deputation in 1823, and the delivery to him of the tract, and then, after alleging that the subsequent ayuntamiento refused to acknowledge the validity of the grant, added : “ In these terms he appeals to your excellency, praying that he be recognized in his rights of ownership of the lands which belonged to him, confirming him in his said property, which was granted to him in order that a settlement be formed in said lands, and that the council of the town of El Paso be notified accordingly. I pray for justice and make the necessary protestation at Paso del Norte, May 12, 1828.” w Upon such petition the following action was taken : To the president of the council of the town of El Paso del Norte: 184 OCTOBER TERM, 189T. Opinion of the Court. “ The decree or title of possession 'ordered to be given by the provincial deputation and the council Of El Paso del Norte in the year 1823, whereby fifty leagues of land on the left side of the Rio Bravo were granted to Don José Lerma, has been ratified and confirmed by the second constitutional congress of this State in consideration of distinguished military services rendered to the Republic by the retired lieutenant, José Lerma: “ Therefore, this government considers that the land transferred by the granted bounty is an exclusive property of the said Lerma, ratifying it in all its parts. The council of El Paso del Norte will act accordingly. God and liberty. “Chihuahua, June 30, 1828.” This order of the governor, as will be seen, did not rest the validity of the grant upon the action of the ayuntamiento, or even upon its action as approved by the provincial deputation, but recited that the title had been ratified and confirmed by the second constitutional congress of the State. So that the only other case in which, as said by counsel, action was taken under this law of 1823 by any ayuntamiento clearly shows that it did not understand that it had absolute power, but that its proceedings required approval by the provincial deputation, or some higher authority. The Court of Private Land Claims was right in its conclusions that no final grant had ever been made to Doctor Heath of the tract in controversy. But it is unnecessary to rest the case upon this alone, for even if the ayuntamiento had full and final jurisdiction in the premises and had made an absolute and unconditional grant— one beyond the power of any superior authority to disapprove and annul, still we think the judgment of the Court of Private Land Claims was right, because, as indisputably appears from the evidence, when Doctor Heath came with his colonists to take possession of the tract, the Mexican authorities repudiated the alleged grant, denied his rights and practically drove him from the country. Not only that, but, as the record shows, the Mexican government thereafter granted to other parties large portions of the same tract. The disavowal, repudiation, expulsion and subsequent grants were in no respect the irregular acts of a mere mob or other unauthorized parties. They CESSNA v. UNITED STATES. 185 Opinion of the Court. •were the deliberate official proceedings of the duly constituted authorities of the Mexican government. This repudiation commenced in 1824 and continued until the cession of territory to the United States, under the treaty of Guadalupe Hidalgo. During all those years, so far as the record shows, no action was taken by Doctor Heath to enforce his claim or recover damages from the government of Mexico for the alleged wrongs done him. Neither were any proceedings taken by him, or those claiming under him, from the treaty of cession until the presentation of this petition before the Court of Private Land Claims. In other words, for seventy years (more than twenty of which the land was within the dominion of the government of Mexico) this claim was permitted to lie dormant. Other people have passed into possession of parts, at least, of the tract, and are occupying it under subsequent grants from that government. Twice during this lapse of time was provision made for an adjustment of claims of citizens of the United States against the government of Mexico. On April 11, 1839, a convention was entered into between the two nations referring to four commissioners all claims of citizens of the United States against Mexico which had been presented to this government for consideration. 8 Stat. 526. And again, in the treaty of Guadalupe Hidalgo, there was a further provision of like nature. 9 Stat. 922. Article 14 of that treaty released the Mexican government in these words: “The United States do furthermore discharge the Mexican republic from all claims of citizens of the United States, not heretofore decided against the Mexican government, which may have arisen previously to the date of the signature of this treaty; which discharge shall be final and perpetual, whether the said claims be rejected or be allowed by the board of commissioners provided for in the following article, and whatever shall be the total amount of those allowed.” The fifteenth article, which created the commission, directed that it should be guided and governed by the principles and rules of decisions prescribed by the first and fifth articles of a prior unratified convention, and in the first of those articles it was provided — 186 OCTOBER TERM, 1897. Opinion of the Court. “ The said commissioners, thus appointed, shall, in the presence of each other, take an oath to examine and decide impartially the claims submitted to them, and which may lawfully be considered, according to the proofs which shall be presented, the principles of right and justice, the law of nations, and the treaties between the two republics.” So that if Doctor Heath had any claim against the Mexican government on account of being deprived of this alleged grant he could, by a presentation of it under one or the other of these treaties, have received full compensation. The fact that he made no claim is persuasive evidence that he did not understand that what had taken place amounted to a complete grant. Further, when the United States received this territory under the treaty of Guadalupe Hidalgo they refused to recognize as still valid and enforceable all grants which had been assumed to be made prior thereto by the Mexican authorities. Article 10 as proposed by the commissioners was rejected by this government and stricken out from the treaty. That article not only contemplated binding this government to respect all grants which would have been recognized as valid by the government of Mexico if no cession had been made, but also proposed to give to grantees who had failed to perforin the conditions of their grants, and whose failure to perform might be deemed to have avoided the grants, further time to perform the conditions. By the rejection of this article this government distinctly declared that it did not propose to recognize any grants which were not at the time of the treaty of cession recognized by the Mexican government as valid or any whose conditions, either precedent or subsequent, had not been fully performed. In this respect the action taken was in harmony with the general rule of international law. It is the duty of a nation receiving a cession of territory to respect all rights of property as those rights were recognized by the nation making the cession, but it is no part of its duty to right the wrongs which the grantor nation may have theretofore committed upon every individual. There may be an exception when the dis- CESSNA V. UNITED STATES. 187 Opinion of the Court. possession and wrong of the grantor nation were so recently before the cession that the individual may not have had time to appeal to the courts or authorities of that nation for redress. In such a case perhaps the duty will rest upon the grantee nation, but such possible exception has no application to the present case and in no manner abridges the general rule that among the burdens assumed by the nation receiving the cession is not the obligation to right wrongs which have for many years theretofore been persisted in by the grantor nation. Because Mexico had more than twenty years before the cession forcibly taken from Doctor Heath land that was rightfully his and given part or all of it to other persons it does not follow that when the United States accepted the cession they came under obligations to do that which Mexico had failed to do, place Doctor Heath in possession and restore to him the land of which he had been thus wrongfully deprived. Such action if taken might well expose this government to just claims for compensation in behalf of the subsequent grantees of Mexico, who apparently took no personal part in the wrongs done to Heath. Doctor Heath may have had a claim against Mexico for those wrongs, but he failed to prosecute his claim in the way prescribed, and he cannot now make his failure to pursue such prescribed way a reason for enforcing a title which that nation had refused to recognize. So long as Mexico repudiated his claim to this tract his only recourse was by direct appeal or through the intervention of this government to seek compensation for the property of which he had been deprived. When this government accepted the cession of the territory it did not thereby assume an obligation to satisfy any pecuniary demands which he as an individual may have had against the Mexican government. In other words, it took that territory bound to respect all rights of property which the Mexican government respected, but under no obligations to right the wrongs which that government had theretofore committed. But even if there were an obligation on the part of this government, either under the general rules of international law or the terms of the treaty of cession, to recognize plain- 188 OCTOBER TERM, 1897. Opinion of the Court. tiffs’ claim to this particular tract, yet the time, manner and conditions of enforcing it would depend upon the will of Congress. And in creating the Court of Private Land Claims Congress has prescribed the character of claims which that court may determine and the conditions which must attach to any claim which it may enforce. This claim, even if the grant in its inception was valid, was not one which it was within the province of the Court of Private Land Claims to approve and confirm. The eighth clause of section 13 forbids the confirmation of a grant made upon any condition or requirement, either antecedent or subsequent, unless it appears that such condition and requirement had been performed within the time and in the manner stated in the grant. That certain conditions or requirements were attached to this grant is evident from a perusal of the application and the order. That they were not performed is admitted by plaintiffs. Their contention is that performance was prevented by the Mexican authorities, and having been prevented it should be considered that performance was waived and the title had become absolute. Whatever may be said as to the duty of this government to treat a condition whose performance was prevented by the Mexican authorities as a condition performed does not detract from the proposition that the Court of Private Land Claims is not vested with such power. It is a mere creature of statute with prescribed and limited powers. It has no general equity jurisdiction. It can confirm a grant made upon condition only when such condition was performed. It is not under the statute at liberty to treat anything as equivalent to performance. Cases in which there was no performance of the conditions of the grant are cases which must be considered as reserved by Congress for further action on its part. So that under the terms of the act creating the Court of Private Land Claims, even if there were no other objections to the proceedings, the admitted fact tha the conditions and requirements of this grant were never performed is sufficient to justify the ruling of the court in dismissing the petition. Of course, the observations above made may not be app i- BAKER V. CUMMINGS. 189 Statement of the Case. cable to a case in which the Mexican government had subsequently to the original grant and prior to the cession waived the performance of the conditions. For as it had power in the first instance to make the grant without conditions, its action in subsequently waiving or removing such conditions, was equivalent to an original grant without conditions. We have not deemed it necessary to consider the matter of limitations and laches. That this is an old claim is evident, seventy years having elapsed between its inception and its prosecution. Whether it must also be adjudged a stale claim and beyond judicial recognition need not be determined. The other reasons presented for its rejection are sufficient. We see no error in the proceedings, and the judgment is Affirmed. BAKER v. CUMMINGS. APPEAL EROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 189. Argued January 14, 17,1898. — Decided February 21,1898. Stuart v. Hayden, 169 U. S. 1, affirmed to the point that when two courts have reached the same conclusion on a question of fact, their finding will not be disturbed unless it be clear that their conclusion was erroneous. Metropolitan National Bank v. St. Louis Dispatch Co., 149 U. S. 436, affirmed to the point that courts of equity, in cases of concurrent jurisdiction, consider themselves bound by the statutes of limitation which govern actions at law. In this case the court arrives at the conclusion, on the evidence, that if the false representations as to the earned fees were made by Baker as alleged, there was entire knowledge thereof by Cummings more than three years before the filing of his bill, which is the time in which an action at law for such a cause is barred in the District of Columbia, and that the conduct of Cummings, in permitting Baker to go on and prosecute the claims as if they were his own, debars him from proceeding in a court of equity; but in so holding the court must not be considered as intimating that it concludes that there was either clear and convincing proof, or even a preponderance of proof, that the sale was as claimed by Cummings. This suit was commenced by appellee Cummings on Febru- 190 OCTOBER TERM, 1897. Statement of the Case. ary 1, 1890, by a bill filed on the equity side of the Supreme Court of the District of Columbia against Baker, the appellant. In substance, the bill set forth the formation about the year 1874 of a partnership between Cummings and Baker for the practice of law in the city of Washington ; that the expenses were to be borne and the profits shared equally between the partners ; that the firm some years thereafter became attorneys for the collection of claims against the United States in favor of certain inspectors of customs for arrears of pay claimed to be due them. It alleged that on September 6, 1886, Cummings sold to Baker all his interest in the fees earned but not then divided, and those yet to be earned from such claims, and that there was consequently a dissolution of the partnership as to these matters, but that it continued as to all other business until September, 1889, when the partnership was dissolved. The object of the bill was to procure a cancellation and annulment of the sale of the fees in inspector cases made as above stated and of the written instrument of assignment by which it was evidenced, on the ground of false representations claimed to have been made by Baker to Cummings in the negotiations for the sale, which representations were averred to have brought about the consent to the sale and the execution of the assignment to carry out the same. The fraud specified was, in substance, this: That Baker had misrepresented the amount of the fees then actually earned by the firm and undivided between the partners on the inspectors’ claims, for which appropriations had then been made by Congress, by stating to Cummings that the then earned fees only equalled about $20,000, when in truth and in fact they were, to the knowledge of Baker, about $32,000; that as to the future claims then in the hands of the firm but not then allowed by the Treasury Department or appropriated for by Congress, Baker had knowingly largely understated the amount thereof by representing them to be only $80,000, when in fact they then amounted to about $275,000. The relief prayed was an annulment of the sale; a full settlement of the partnership affairs, treating the fees in the inspector cases as being a part of the partnership assets; and in aid of the final settlement which BAKER V. CUMMINGS. 191 Statement of the Case. was asked, there was also a prayer that Baker be enjoined from prosecuting an action instituted by him against Cummings, in December, 1889, to recover $2712.81 and interest, it being averred that Baker’s right to this amount was involved in a settlement of the entire partnership affairs. The answer of Baker denied that there had been any fraud practised upon Cummings in the purchase of his interest in the fees in the inspector cases, and the alleged misrepresentations as to both classes of fees, whether earned or to be earned, was expressly denied. The averment, that the complainant had sold his interest in the fees on a basis of his ownership of one half therein, was directly traversed, and on the contrary it was alleged that the assignment resulted from the following circumstances and had been made upon these conditions : That the existence of claims by inspectors of customs against the Government had been discovered by Baker, and that he had procured the business of prosecuting them for the firm for a compensation, in most cases, of twenty-five per cent of the sum collected, and had substantially by his own labors pressed them to a successful issue, and that the result of his exertions had been to earn for the partnership a considerable sum of money, which had been, prior to 1886, divided between the partners equally; that during the course of the business Cummings had given little or no attention to the inspectors’ claims, but on the contrary had neglected not only these claims, but the partnership affairs generally; that, in consequence of these facts, for months prior to September, 1886, Baker had determined to put an end to the partnership, and had so informed Cummings; that for the purpose of preventing this dissolution and securing a continued association with him (Baker) in business, which Cummings desired, an agreement had been entered into between the partners that Cummings, instead of taking an equal interest in the earnings of the firm from the inspectors’ cases, should dispose of his rights therein on the basis of his having only a one-third instead of a one-half interest; that on this agreement, as to the proportion in which the partners should be entitled to the fees, and Cummings’s judgment of the future result of claims unallowed and unap- 192 OCTOBER TERM, 1897. Statement of the Case. propriated for, which were in their very nature largely conjectural, the sale was made for a consideration of $15,000 cash to be paid by Baker to Cummings, the latter to retain in addition the full amount of all fees due to him for his services as assignee of an insolvent banking firm, which latter amount, without the release, it was averred, would have been an asset of the partnership, and was estimated to equal $10,000, of which Baker’s share would have been one half. The answer, moreover, averred that at the time of the sale Cummings had full information of the condition of the business in the inspector cases and dealt with his eyes open; that as a partner he was not only familiar with the general manner in which the business was conducted, but also, about two weeks prior to the sale, he received from Baker papers and documents which fully informed him of the exact condition of the claims, his interest in which it was proposed to sell, the papers and documents in question having been handed to Cummings during the pendency of the negotiations in order that he might ascertain the precise situation. In addition, the answer averred that immediately after the sale, and before Cummings had cashed a check for $15,000, given him by Baker in payment of the amount of the purchase price, Cummings was put in possession of papers and documents which were acted upon by him, and which, if any fraudulent representation had been made in relation to the sale, fully informed him of the fact in ample time to have protected his interest: and although this full information was given him, before the purchase price was collected, Cummings made no pretence of any deceit practised upon him, or made any complaint as to the contract, but continued in the partnership as a member of the firm as to other business, and that the first complaint which was made by him of any unfairness in the transaction was nearly three years after the sale, and then only after Baker had insisted upon payment to him by Cummings of a sum which Baker claimed was due him, and had moreover expressed his unalterable intention to dissolve the partnership. The defence of the bar of the statute of limitations was specially pleaded. BAKER v. CUMMINGS. 193 Opinion of the Court. At the hearing a decree was entered for complainant, and a reference was made to an auditor to state the accounts between the parties. Pending the hearing on such reference, an appeal from the interlocutory decree was prosecuted to the Court of Appeals of the District of Columbia, where a judgment of affirmance was rendered. 4 App. D. C. 230. Subsequently, on confirmation of the report of the auditor, a final decree was entered in favor of the complainant for the sum of $32,772.14, with interest thereon from the 1st day of July, 1895, until paid, in which sum was embraced a credit to Baker of the items claimed by him in his action at law against Cummings. From this final decree an appeal was taken to the Court of Appeals for the District, by which it was affirmed. 8 App. D. C. 515. This appeal was then taken. J/r. 8. R. Bond and Mr. George F. Edmunds for appellant. Mr. Franklin H. Mackey for appellee. Mk. Justice White, after making the foregoing statement, delivered the opinion of the court. Before approaching a discussion of the issues which we deem it necessary to pass upon in order to conclude the controversy which the record presents, it will subserve the purpose of clearness of statement to give a brief outline of the proof as to matters about which there is no substantial controversy and to point to the controverted question, thus eliminating from view irrelevant contentions, and concentrating the attention on the material issues. 1. The existence of the partnership was established as alleged, and the fact that the claims of the inspectors had been unearthed by Baker, and had been mainly secured by him for the firm on a contingent fee of twenty-five per cent, and had been almost exclusively prosecuted by him, was established beyond question. That Cummings had not given any great attention to the business for several years, and that Baker was dissatisfied therewith and had threatened to dis- VOL. CLXIX—13 194 OCTOBER TERM, 1897. Opinion of the Court. solve the partnership many months before September, 1886, though not explicitly admitted by Cummings, was also conclusively established. 2. The sale of Cummings’s interest in the inspector fees, both earned and unearned, for a consideration which embraced a cash payment of $15,000, was also established beyond dispute. That in the negotiations which preceded the sale Cummings contemplated something besides a mere division between himself and Baker in equal proportions of the rights of each in and to the fees, was also indisputably proven. This is testified to by Cummings himself as follows: “I said, ‘Mr. Baker, I make you this proposition: I will take one half fees in all the cases in which we have powers of attorney and contracts prior to the 1st of January, 1886, or I will take one third of all the fees in all the cases (leaving him two thirds), or I will take $15,000, as you offer, according to what you think is the best for me.’ ” Undoubtedly, also, the proof establishes that when the sale was made the fees for cases allowed and appropriated for, then undivided, amounted to about $32,000, and that the claims subsequently allowed and appropriated for largely exceeded $80,000. From these conceded facts there arises a grave contention; Cummings claiming that, as he was entitled to an equal share of the fees, he was led, by the misrepresentations of Baker, into making a seeming sale of his interest, receiving as a consideration virtually nothing but his own money; Baker, on the other hand, contending that the transaction between the parties did not contemplate a mere division of their interest, but a sale by Cummings of his rights on the basis of his being entitled only to a one-third interest in the fees, in order to obtain a continuance of the partnership as to other matters, and that the sum of $15,000 and the right of Cummings to retain the assignee’s fees before referred to, was fixed by Cummings, from his knowledge of the business and his investigations made at the time, as a fair equivalent for his agreed one-third right as above stated. 3. Nor does any real dispute exist as to the fact that when the active negotiations for the sale begun, papers were banded BAKER V. CUMMINGS. 195 Opinion of the Court. Cummings by Baker, from which an understanding of the state of the whole business could have been derived; that these papers were taken home by Cummings and retained for several weeks until just before the sale was consummated. Whilst as to these facts there is no conflict in the proof, there is a controversy as to whether it was established that Cummings examined the papers carefully so as to put himself in possession of the information which might have been obtained from them; Cummings claiming that the papers were of such a confused nature that he could have arrived at an accurate knowledge only by inquiry, labor and investigation, which he did not make, as he preferred to rely upon Baker’s special acquaintance with the status of the claims. Baker, on the other hand, claiming that he had no greater information than was accessible to Cummings, and that the latter dealt on the faith of his own knowledge and estimate, and not upon information derived from or representations made by Baker personally. 4. The proof also establishes, and there is no contention on the subject, that on the evening of the sale or the morning of the day following, Baker left the city of Washington for the State of New Hampshire; that he left Cummings in the office, and before going placed in his hands a document known in the record as Exhibit H. M. B., No. 3, to enable Cummings to look after any matters in the inspector cases which might require attention during his (Baker’s) absence; that at the same time Baker left with Cummings the bank deposit book of Baker, with his check book containing signed and unfilled checks to be used as occasion required in the making of remittances or payments in the inspector cases; that Cummings acted upon this authority and made deposits of drafts collected from the Government, drew checks for amounts due claimants, and made entries indicating these latter facts upon the schedule in question ; that at the time of Baker’s departure Cummings had not cashed the check given him by Baker as the consideration for the sale, and that Cummings cancelled it, and on different occasions filled up three of the signed checks left by Baker, for the sum of $5000 each, and collected 196 OCTOBER TERM, 1897. Opinion of the Court. the same, thus acquiring the consideration referred to. The proof further established that Baker remained absent for nearly a month, and on his return found Cummings in the office as usual; that they continued thereafter to occupy the same office, and that no complaint was made by Cummings as to the fairness of the sale until nearly three years thereafter, at which time Baker was pressing a claim against Cummings, and had told him that he was going to dissolve the partnership. The controverted issue arising from the foregoing unquestioned facts is this: Cummings claims that he did not derive knowledge of the fraud he complains of from the matters just stated ; whilst Baker asserts that if the fraud in the purchase complained of by Cummings had existed, full knowledge thereof was conveyed to Cummings by the facts above stated, and that the silence of the latter and his inaction for years, and until Baker had made claim for money and stated his intention to dissolve partnership, not only establishes the want of foundation for Cummings’s assertion that there was misrepresentation and fraud in the sale, but also makes clear the fact that the right to make such claim was barred, both by limitations and laches, when the demand of Cummings was actually preferred. It results from the foregoing that the facts as to the controverted matters are embraced in a narrow compass, and that the whole case really resolves itself into two issues: 1st. Does the proof establish that the purchase and sale in question was as claimed by Cummings, or as asserted by Baker? In that question is necessarily embraced the further one of whether Cummings, at the time of the sale, had actual knowledge of the fraudulent representations claimed to have been made by Baker. This is, in terms, included, because it would be impossible in reason to declare that one had been deluded or deceived by misrepresentations into entering into a contract if he had actual knowledge when the contract was made that the alleged inducing representations were false. 2d. Conceding that Cummings was misled by the fraudulent representations of Baker as alleged, did he immediately after the BAKER v. CUMMINGS. 197 Opinion of the Court. sale, and before the collection, by him of the cash consideration of the sale, discover that the representations were untrue, and thereby become aware that he had been grossly deceived and defrauded, and did he, with such knowledge, say nothing, about the matter, collect the cash consideration, remain silent, and continue in partnership with Baker, occupying the same office for years, and only assert that he had been deceived when a dissolution of the partnership was threatened and he was pressed to pay a sum which Baker claimed Cummings owed him ? This latter inquiry assumes a twofold aspect, for although in the bill, in the opinions below, and in the argument at bar, the efficient misrepresentation, which it is asserted rendered the assignment void, was the fraudulent statement as to the sum of the fees on the claims then allowed and appropriated for, nevertheless it is also, as we have seen, asserted in the bill and contended in argument that there was a misrepresentation as to the pending claims not yet acted upon by the department, and which were then unappropriated for by Congress. We will defer an examination of the testimony as to the existence of the fraud and misrepresentation complained of until we have passed on the charge that, if there was fraud and misrepresentation, Cummings had full knowledge thereof immediately after the sale. We adopt this order of consideration because if it be found that such was the case, the question whether the fraud originally existed will become immaterial, in view of the defences of limitation and laches. Moreover, in reviewing the question of knowledge, we will do so in the order stated, that is, first, discovery of the alleged fraud and misrepresentation as to the amount of fees collected and in process of collection from claims appropriated for at the time of the sale; and, second, discovery of the misrepresentation as to the amount of pending claims from which further fees were expected. Here, also, it is to be premised that if the first proposition be found to be well taken, an examination of the second will be wholly unnecessary. This, obviously, is the case, for as the statute of limitations began to run from the time when suit might have been brought to annul the sale, it 198 OCTOBER TERM, 1897. Opinion of the Court. results that the discovery of the falsity of any material and fraudulent representation by which the sale had been induced, gave rise to the right to commence an action to rescind, and therefore fixed the period when the statute of limitations commenced its course. I. — Did the schedules left with Cummings the day after the sale, when Baker went off to New Hampshire, and which remained in the custody of Cummings and were practically under his control, convey to Cummings full knowledge that he had been grossly deceived as to the amount of fees collected, as alleged by him, if his statement that such false representation had been made was true, and did he remain silent for three years thereafter ? In entering upon an analysis of the evidence upon this particular subject, we shall be governed by the principle determined by this court in numerous cases — of which Stuart v. Hayden, 169 U. S. 1, decided at the present term, is the last expression — that when two courts have reached the same conclusion on a question of fact, their finding will not be disturbed unless it be clear that their conclusion was erroneous. To determine whether Cummings knew immediately after the sale, and before he had collected the price thereof, whether misrepresentations had been made to him and fraud practised upon him as to fees from cases then appropriated for, it is, of course, essential to see clearly what were the misrepresentations asserted to have been made, and what was the fraud claimed to have been perpetrated. They were, as alleged in the bill, that Baker, with a knowledge that the fees from the claims allowed and appropriated for were $32,000, had concealed the fact from Cummings, and represented that such fees were only equal to $20,000 or thereabouts. It is obvious then that the fraudulent representation alleged was not as to the amount of the claims allowed and appropriated for upon which the fee of twenty-five per cent was to be calculated, but as to the sum of the fees to arise from the calculation. And this is unmistakably established by the testimony of Cummings in his examination on the 29th of February, 1892, where he said, in describing the representation made by Baker to him: BAKER V. CUMMINGS. 199 Opinion of the Court. « I asked Mr. Baker how many fees there were that were due us in cases that had been adjudicated and for which appropriation had been made, and which were then in the process of collection, and he said about $20,000, or not more than $22,000. I was somewhat surprised at that, and 1 so expressed my surprise to him; he said that our fees in some of those cases were not as much as usual; some only about 10, 15 or 20 per cent.” It is not reasonable to infer that surprise could have arisen as to the amount of fees if there had been no antecedent knowledge of the sum of the claims on which the fees were to be calculated. The fact that Cummings had approximate general knowledge of the amount of the claims is not only shown by the particular statement just cited, but by his declaration that he observed when appropriations were made, knew at the time that the appropriation of August, 1886, had been made, and also knew that practically all of the inspector cases were controlled by his firm. As all the fees earned which were embraced in the sale arose from claims covered by the appropriation made in August, 1886, it follows that these statements by Cummings and his admitted knowledge of the August appropriation taken together leave no doubt that Cummings was fully informed as to the sum of the claims from which the earned fees arose. Indeed, the possibility of any other view of the testimony is removed by a statement of Cummings subsequently made, and to which we shall hereafter more fully refer, in which he plainly says that he knew that the gross amount coming in on the basis of the usual compensation was $32,000, and supposed that the reduced amount arose from charges against it. Now, then, the issue of fact to be determined is this: Could it have been possible for Cummings to have received the schedule in question on the morning after the sale, to have dealt with it, to have made entries on it at various times, without being informed that the fees of the firm were not less than 25 per cent in a sufficient number of cases to have justified any belief whatever that the sum of the fees was reduced from $32,000 to $20,000 ? The schedule left in his hands by 200 OCTOBER TERM, 1897. Opinion of the Court. Baker contained seven sheets. In one column was the name of the claimant, in another the total allowance, in a third the fee, in a fourth the amount of the remittance to the claimant, in a fifth the date of the remittance, in a sixth whether remitted by check, in a seventh the number of the check, and in an eighth column the date of the check. The amount of the aggregate fees appearing on each sheet was added up and stated at the bottom of the column. With such total stated, the only act required to ascertain the aggregate amount of all the fees was to sum the footing of the sheets. And yet the want of knowledge by Cummings of the fraud is predicated upon the proposition that although these sheets were in his hands for nearly a month, while he was dealing with them making entries on them, he was so careless as never even to make the addition which would have conveyed to him absolute knowledge of the fact that the fraud had been committed. But even the addition was not necessary, for if the fraudulent misrepresentation was made, it was not, as we have seen, as to the gross amount, but as to the net fees to be realized from the gross amount, that is, that the diminished amount arose from the fact that in the cases on the schedule the firm was getting less than 25 per cent. But on the sheets, in the column of fees immediately next to the column of amount allowed, the sum of the fee in each case was stated, and no eye could even casually look at the schedule without observing that nearly all the fees were stated therein at the rate of 25 per cent, and not at a diminished rate. However, to hold that Cummings did not derive knowledge from the schedule, the reasoning must go yet further. Out of 106 names on the schedule, there were only five where the fees stated were less than 25 per cent, and in four of these five cases the fact that the fee was a reduced percentage was made evident by the statement expressed in figures immediately opposite the name of the claimant, giving the exact percentage upon which the fee was calculated. The mind, then, is driven to the conclusion that the testimony beyond doubt establishes that Cummings knew immediately after the sale and before he collected the price that Baker had made to him a gross and wilful misrepresentation, if the BAKER v. CUMMINGS. 201 Opinion of the Court. statement was made by Baker to which Cummings testifies, and which he asserts operated to induce him to part with his interest. Overwhelming as is the proof that the schedule conveyed to Cummings the knowledge of the fraud if it had been perpetrated, such fact is unquestionably shown by Cummings’s further testimony. At a subsequent stage of his examination when he was questioned on the subject and his possession of the schedule had been developed, he frankly admitted that his possession of the schedule and his dealings with it had informed him that Baker’s representation which he swore had been made about the diminished percentage was untrue, but that he had on such discovery lulled himself into security by the belief that there must have been another reason for Baker’s statement of the reduction in the amount of fees, that is, the large sums which Baker might have had to pay out to other attorneys, and presumably under this belief he remained silent. We extract a question and answer bearing on this subject: “Q. Now, then, your check was paid in that way. When did you first obtain any knowledge as to the amount of claims which had been collected by Baker upon the first class of cases — I allude to the class of cases in which he said there were from $20,000 to $22,000 in fees, the cases in which appropriation had already been made; and you may also state at the same time when you first discovered in regard to the other class of cases in which no appropriation had been made —when you first discovered the amount? “A. The amount of the claims that had been adjudicated and which'were in the process of collection I discovered, of course, within a day or two after Mr. Baker had delivered me the schedules, and I continued the collections, because these schedules contained the name, the amount, the fee and all the data pertaining to each case, and it was hard for me to reconcile the amount of fees that he said and the amount of fees that were on the schedule, and I know often we had to pay out a large amount of our fees to other attorneys, as I frequently had paid one half of a fee to a local attorney to work 202 OCTOBER TERM, 189T. Opinion of the Court. up the evidence, and I had supposed the great diminution of these fees from what I supposed, viz., $32,000, in the vicinity of $30,000, was owing to the division with other lawyers. It has been my habit in a number of cases — I write down my ideas of things, and on that occasion I sat down and I made a private memorandum for myself, giving my impressions of the matter, wondering as to whether I had done the best or not and wondering if the facts were — ” However unreasonable may be this explanation, and however natural is the inference that, if Cummings had discovered that his partner had made a gross misstatement to him and defrauded him, he would not have completed the sale by collecting the consideration, but would have called his attention to the facts when the partner returned a month after, need not be discussed since the reason given by Cummings for his conduct is rendered wholly nugatory by another consideration, which is this: The seventh of the sheets left in the custody of Cummings contained a statement of the sums to be paid to other attorneys by the firm on the claims mentioned in the schedule. The form of this sheet was slightly different from that of the others. It showed the name of the attorney to whom the fee was due, in the next column in what case the fee was due, in the third column the date of the remittance of the fee, in the fourth column whether remitted by check, and in the fifth the date of the check. Now, if, as demonstrated by the proof and as admitted by Cummings himself in his second statement, his dealings with and relations to the schedule conveyed to him knowledge that there was no truth in Baker’s supposed representation as to reduced percentages coming to the firm, how in reason can it be denied that knowledge that the amount could not have been materially reduced by fees paid to other attorneys must have also been conveyed to him when the schedule plainly showed the fact as to the amounts to be paid other attorneys and that they aggregated less than $1500. Indeed, it is justly to be inferred from the testimony that, as the facts shown by the schedule were developed and Cummings’s memory was refreshed by the examination thereof, his mental condition changed, and he reached the BAKER V. CUMMINGS. 203 Opinion of the Court. conclusion that he had been previously mistaken in saying that although the schedule had informed him of the amount, he had been lulled into security, since he subsequently swore that the schedules gave him no information whatever, because he did not look at them at all. His statement to this effect is as follows : “When Mr. Baker handed me that paper and called my attention to the fact that all had not been collected, and that quite a number of payments were still to be made, I simply put it in my desk ; I paid no attention to it, because I considered the trade was made. I had nothing to do with it, but simply took that paper, and when a power of attorney would come in with power to cash the draft I would make the proper entry, but it never came into my head that there was anything wrong about it. I considered that I had sold out to Mr. Baker for a fair consideration. I had no idea that I was being paid with my own money.” So, also, on cross-examination in rebuttal, the following question was asked and answer given by complainant: “ Q. Mr. Cummings, you have stated that Exhibit H. M. B., No. 3, (the schedule we have been referring to,) in answer to a question by Mr. Claughton, was in your possession, and that you paid no attention to it and put it aside. You did not take enough interest in it to go over it and see what it was ? “A. The transaction was closed, as I supposed.” Again, after being cross-examined at some length and being called upon to explain his delay in instituting the present proceedings, and after he had stated that in 1886 he knew of the fact of the appropriation in August of that year by Congress, he was asked to state if he had discovered any facts in 1888 in relation to the appropriation of 1886 which he did not have in 1886. The reply was : “A. I knew no more about the standing of the appropriations of 1886 for these cases and of the settlements thereunder for two years after those settlements were made; in other words, I had no knowledge of the appropriation of 1886 until my suspicions were aroused in 1888. I supposed it was all fair and square. 204 OCTOBER TERM, 1897. Opinion of the Court. “ I don’t know that I learned anything in 1888 of consequence about the appropriation of 1886, but it was only when the three appropriations, amounting to about $240,000 in 1888, instead of the $80,000 as was represented to me, that I began to inquire into the matter, and my knowledge of the appropriation of 1886 and of the fees thereunder was gained by taking the appropriation of 1886 and going into the First Auditor’s Office and seeing what drafts were delivered to Mr. Baker or Cummings, or Cummings and Baker, under the appropriation of 1886. When I had gotten the list of those drafts I got the correct amount of them. “ I think it was in the fall or winter of 1888 or 1889 when I got the list. I did not get a list; I made a list and I went back to my office and I took the Treasury executive document containing the allowances of those cases, and I estimated, as far as I could, and I believe that I am correct, that Mr. Baker received $135,000 on the claims of 1886. “ I don’t remember now that I knew anything about the appropriation of 1886, intervening between 1886 and 1888, though I may have done so, but I do not remember it.” But the “ list ” referred to did not give him as much information as was contained in the schedule which was handed to him immediately after the sale, and which he had in his sole custody for more than three weeks. Nor can the statement of the witness that the schedule was not looked at, overcome the inherent probabilities as to the knowledge which must have been conveyed, in view of their contents, of the length of time they were in Cummings’s possession, of his entries thereon and dealings therewith, and, above all, his previous sworn statement. In other words, the last statement that knowledge was not conveyed by the schedule cannot be taken as true without repudiating the previous declaration that the schedule had given the knowledge, but that its so doing did not excite suspicion, for a reason which the schedules themselves show could not have existed. From the record we infer that this result must have produced an impression on the mind of Cummings, for, later on m his examination, when his attention was called to the fact that BAKER V. CUMMINGS. 205 Opinion of the Court. if he had been deceived by Baker as to the sum of the fees when the sale was made, he could not have escaped discover-ino- it when the schedules were handed him after the sale, O • • ■ he again changed his position and declared that he did not then take any action because the discovery of the misrepresentation as to the amount of the fees earned had not excited his suspicions, because of the immateriality of such misrepresentations. “ A. I am not going to give ideas, but simply facts. My whole idea as to whether I had made a poor trade’ or not had nothing to do with the amount of fees received in 1886, but solely and entirely on account of the future business that would come in ; when Mr. Baker had told me that there was only $75,000 or $80,000 more of cases, out of which there would be a possible $20,000 of fees, I did not know whether that was correct or not, and, as I stated, I could not tell, but time alone would tell.” The situation, then, is this : Looking at the case, as made by the testimony of Cummings, it is impossible to avoid reaching two conclusions; 1st, that Cummings knew the exact condition of the earned fees shortly after the sale, and knew also that he had been grossly deceived if his statement of the transaction was the true one, and that with this full information lie collected the price of the sale and remained quiescent for three years without complaining and without attempting to have the wrong rectified ; 2d, that this conduct on his part is first attributed to one cause, and then to another and conflicting one. When both of these explanations are shown by the proof to be untrue, then the matter is finally explained by him by the statement that on the discovery of the facts he so acted, because he attached no importance whatever to the amount of the fees earned at the time of the sale, and considered that he had not been defrauded by the untrue representations which he asserted had been made in reference thereto. But the bill of complaint, as we have seen, proceeds, and the judgments below rested, upon the theory that the representation as to the amount of the earned fees at the time of the sale was the most material ground for rescinding the contract. 206 OCTOBER TERM, 1897. Opinion of the Court. Our conclusion is, that the evidence not only clearly but beyond all question or dispute overwhelmingly shows that if the false representations as to the earned fees were made as alleged, there was entire knowledge thereof by Cummings. And, for reasons heretofore stated, this conclusion renders unnecessary any inquiry into the question of when Cummings discovered the falsity of the alleged representations as to the amount of pending claims. The question which arises is: Can Cummings invoke the aid of a court of equity to afford him the relief which he seeks ? A negative answer is compelled by a consideration of the most elementary principles. As said in Metropolitan National Bank v. St. Louis Dispatch Co., 149 U. S. 436, 448: “ Courts of equity, in cases of concurrent jurisdiction, consider themselves bound by the statutes of limitation which govern actions at law.” That Cummings might at his election have pursued a remedy for the alleged fraud in a court of law is obvious. And it is equally clear that such remedy at law, by action on the case predicated on the facts as to deceit and fraud, which are alleged in the bill now before us, would have been barred in three years from the discovery of the fraud under the Statutes of Limitation of Maryland of 1715, c. 23, § 2, in force in the District of Columbia. 1 Kilty’s Statutes, 111; Comp. Laws Dist. Col., c. 42, § 6, p. 360. It hence follows, irrespective of the equitable doctrine of laches, that the relief which the bill seeks to obtain ought not to be allowed by a court of equity. Apart, however, from the bar of the statute of limitations, the facts as to the full knowledge of the fraud, if any existed, by Cummings more than three years before the filing of his bill, and his conduct after he obtained it, his permitting Baker to go on and prosecute the claims as if they were his own, debars Cummings from invoking a court of conscience to put him in a much better position than he could possibly have occupied if he had spoken and asserted his rights in due season. There cannot be a doubt that the right existed in Baker to have dissolved the partnership at any time. If this right on his part had been exercised, Cummings would not have been BAKER v. CUMMINGS. 207 Opinion of the Court. in a position to have availed himself of the labors of Baker in prosecuting the future claims to a successful culmination, and would not therefore have been a participant in the profits aris-ino- therefrom. If with a full knowledge of the fraud Cummings chose to remain silent, to permit Baker to go on with the prosecution of the claims, to incur the expenditure of time and labor not only in the cases in which he was successful but in the cases in which he failed, Cummings cannot in conscience be allowed to reap the rewards which he could not possibly have obtained had he spoken with reasonable promptness, when the knowledge of the fraud if it existed was brought home to him in the most pointed and unequivocal way. These broad considerations of equity and justice were not applied below because it was deemed that the occasion for their enforcement had not arisen, for two reasons: First, because it was thought that even if Cummings discovered the fraud in ample time to have availed himself of his rights, he was lulled into not doing so by his faith and confidence in Baker and his disinclination to believe that Baker had perpetrated so gross a fraud upon him. Second, because it was said as Cummings’s share of the earned fees, upon the theory of a half and half division, was equal to the price which he received, there was no consideration for the sale, and the transaction was wholly void, hence there was no room for the application either of the statute of limitations or the doctrine of laches. In other words, that the partnership continued as to the inspector claims just as if no sale had been made. And the doctrine was carried to its logical outcome, since the judgment below awarded to Cummings a share in the fees earned by Baker, from contracts not under the control of the firm at the time of the sale of the interest in the inspector cases, but which were acquired by Baker thereafter. But neither of these views meets our approbation. The first is completely answered by the fact that the analysis of the evidence which we have made conclusively establishes that if the fraud was perpetrated as alleged, the fullest knowledge was conveyed to Cummings more than three years before he brought his suit. Under this state of facts the 208 OCTOBER TERM, 1897. Opinion of the Court. reasoning comes then to this, that there is no doctrine, either of limitation or of laches, applicable to a case of alleged fraud even although the party obtains almost at once full knowledge thereof, if he choose without due reason to affirm that he did not act because he was unwilling to believe his own senses. Reduced to its ultimate deduction, the proposition maintains this doctrine, that if one against whom a fraud has been perpetrated and who thereafter is in all respects fully informed of its nature and extent, chooses not to act, his so electing may continue indefinitely, provided only he declares not that he did not know, but that knowing he did not believe. The second proposition, conceding arguendo the facts are as it assumed them to be, that is, that the price was paid Cummings from his own money, leads in reason to an equally impossible result, since its consequence is substantially to affirm that neither limitation nor laches can be applied in equity when from a given view of the proof it is considered that a fraud has been committed of such a nature as to avoid a contract. That this is the logical outcome of the proposition is shown by its application to the case under consideration. Whether or not Cummings was paid by his own money depends upon an analysis of the facts and a finding as to their preponderance. If the theory of Baker be true that the contract contemplated a division between the partners as to the claims in question, not upon the basis of one half each, but upon the basis of two thirds to Baker and one third to Cummings, because the claims had been largely realized by the efforts of Baker, and because, as a consideration for so dividing, Baker agreed as to other business to continue the partnership with Cummings when otherwise he would have dissolved, there can be no pretence for the claim that Cummings was paid with his own money. To say, then, that Cummings was paid by his own money necessitates deciding that the fraud was established as alleged by Cummings. But the principle by which the bar of the statute of limitations is enforced by a court of equity and upon which the doctrine of laches rests is that equitable powers will not be exercised to discover whether one has been wronged when, with full UNITED STATES v. KLUMPP. 209 Syllabus. knowledge of the alleged wrong, he has allowed the bar of the statute of limitations to arise, and has slept upon his rights until such a situation has arisen as to render it inequitable to afford him relief. By the effect of the proposition referred to these principles are subverted, and a new doctrine arises which may be thus stated: A court of equity will not grant relief against fraud where the one against whom the fraud has been committed has, after its discovery, allowed the bar of the statute of limitations to be accomplished, unless there has been fraud, and if there has been such fraud neither laches nor limitation can ever apply. Because we rest our conclusions upon the application of the bar of the statute and the laches of Cummings, we must not be considered as intimating that we- conclude that there was either clear and convincing proof, or even a preponderance of proof, that the sale was as claimed by Cummings. It follows that the decree of the Court of Appeals of the District of Columbia must be reversed, and the cause be remanded to that court, with directions to set aside the decree of the Supreme Court of the District of Columbia, and to remand the cause to that court with instructions to dismiss the bill, and it is so ordered. UNITED STATES v. KLUMPP.1 CERTIORARI TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 159. Argued January 20, 1898. —Decided February 21, 1898. In paragraph 297 of the tariff act of August 27, 1894, c. 349, 28 Stat. 509, providing that“ the reduction of the rates of duty herein provided for manufactures of wool shall take effect January first, eighteen hundred and ninety-five,” the words “ manufactures of wool ” had relation j;o the raw material out of which the articles were made, and, as the material of worsted dress goods was wool, such goods fell within the paragraph. 1 The docket title of this case is “ The United States, Appellant, v. Alexander Murphy & Co.” VOL. CLXIX—14 210 OCTOBER TERM, 1897. Statement of the Case. On the thirtieth day of August, a.d. 1894, John F. Klumpp and others, doing business as a partnership under the name of Alexander Murphy & Co., imported into New York certain merchandise consisting of women’s and children’s dress goods composed of worsted. The collector classified this merchandise and assessed it for duty under paragraph 395 of the tariff act of October 1, 1890, c. 1244, 26 Stat. 567, at twelve cents per square yard and fifty per cent ad valorem. The importers protested, claiming the goods to be dutiable under paragraph 283 of the tariff act of August 27, 1894, c. 349, 28 Stat. 509, at forty per cent, or fifty per cent ad valorem, according to the value per pound. The Board of General Appraisers overruled the protest (G. A. 2769), and the importers carried the matter to the Circuit Court, which reversed the decision of the Board of General Appraisers. Murphy v. United States, 68 Fed. Rep. 908. On an appeal to the Circuit Court of Appeals for the Second Circuit, the decision of the Circuit Court was affirmed. Murphy v. United States, 38 U. S. App. 467. The case was then brought here on certiorari. It was admitted below “ that the classification of the merchandise by the collector was worsted dress goods, at twelve cents per square yard and fifty per cent ad valorem under schedule K, paragraph 395 of the tariff act of October 1, 1890.” And “ that the merchandise in controversy is worsted dress goods, made from the fleece of the sheep, which has been combed and spun into worsted yarn, and is not composed of the hair of the camel, goat, alpaca or other animal than sheep.” Paragraph 395 of Schedule K of the act of October 1,1890, entitled “Wool and Manufactures of Wool,” read: “On women’s and children’s dress goods, coat linings, Italian cloth, bunting, and goods of similar description or character composed wholly or in part of wool, worsted, the hair of the camel, goat, alpaca or other animals, and not specially provided for in this act, the duty shall be twelve cents per square yard, and in addition thereto fifty per centum ad valorem: Provided, That on all such goods weighing over four ounces per square yard the duty per pound shall be four times the duty imposed UNITED STATES v. KLUMPP. 211 Opinion of the Court. by this act on a pound of unwashed wool of the first class, and in addition thereto fifty per centum ad valorem.” Paragraph 283 of Schedule K of the act of August 27,1894, c. 349, entitled “Wool and Manufactures of Wool,” provided : “ On women’s and children’s dress goods, coat linings, Italian cloth, bunting or goods of similar description or character, and on all manufactures, composed wholly or in part of wool, worsted, the hair of the camel, goat, alpaca or other animals, including such as have india rubber as a component material, and not specially provided for in this act, valued at not over fifty cents per pound, forty per centum ad valorem; valued at more than fifty cents per pound, fifty per centum ad valorem.” Paragraphs 280 to 286, inclusive, under this schedule, provided for duties on articles made, or composed, “ wholly or in part of wool, worsted or the hair of the camel, goat, alpaca or other animals,” except that paragraph 282, which referred to blankets, etc., omitted the word “ worsted.” Paragraphs 287 to 296, inclusive, related to carpets, mats, etc., and the concluding paragraph of the schedule read: “297. The reduction of the rates of duty herein provided for manufactures of wool shall take effect January first, eighteen hundred and ninety-five.” Paragraph 685, one of the paragraphs of the free list, was as follows: “ 685. All wool of the sheep, hair of the camel, goat, alpaca and other like. animals, and all wool and hair on the skin, noils, yarn waste, card waste, bur waste, slubbing waste, roving waste, ring waste and all waste, or rags composed wholly or in part of wool, all the foregoing not otherwise herein provided for.” ^.r. Solicitor General for appellant. IK Wickham Smith for appellees. Mr. Charles Curie was on his brief. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. Women’s and children’s dress goods, “composed wholly or 212 OCTOBER TERM, 1897. Opinion of the Court. in part of wool, worsted, the hair of the camel, goat, alpaca or other animals,” were dutiable under paragraph 395 of the act of October 1,1890, at twelve cents per square yard and fifty per cent ad valorem; under paragraph 283 of the act of August 27, 1894, at forty or fifty per cent ad valorem, according to value’. But by paragraph 297, the reduction of the rates of duty on “ manufactures of wrool ” was not to take effect until January 1, 1895. And if that paragraph applied to worsted dress goods for women and children, then the collector was right, and the judgment must be reversed. Was it intended that the words “ manufactures of wool,” as used in this paragraph, should include or exclude worsted goods ? Worsted goods are made out of wool, and are necessarily a manufacture of wool. The Century Dictionary defines “ worsted ” as a noun : “ A variety, of woollen yarn or thread, spun from long-staple wool which has been combed, and in the spinning is twisted harder than is usual;” and as an adjective: “ Consisting of worsted; made of worsted yarn; as worsted stockings.” “Worsted is but wool, spun and twisted in a particular manner,” said Mr. Justice Story, in Whiting v. Bancroft, 1 Story, 560. And in Cahn v. Seeberger, 30 Fed. Rep. 425, it was found by Judge Blodgett that: “Worsted is made by combing long fibred wools so that the fibres usually lie or are arranged alongside each other, while wool is treated by carding it so as to interlock the fibres with each other.” As between worsted yarns and woollen yarns the Encyclopaedia Britannica says that the fundamental distinction “rests in the crossing and interlacing of the fibres in preparing woollen yarn, — an operation confined to this alone among all textiles, while for worsted yarn the fibres are treated, as in the case of all other textile materials, by processes designed to bring them into a smooth, parallel relationship with each other.” Vol. 24, p. 658. Although through the introduction of improved processes of manufacture, it gradually became possible to comb shorter and finer varieties of wool, and thus to manufacture worsted UNITED STATES v. KLUMPP. 213 Opinion of the Court. goods of higher grade and better quality, approximating worsted to woollen goods, and removing the reason for any distinction between them in the matter of duties, the tariff laws prior to May 9, 1890, made a distinction in that respect between woollen and worsted goods, resting on the difference in the process of manufacture; but the raw material was, of course, always the same, namely, wool. By the tariff acts of April 27, 1816, c. 107, 3 Stat. 310; of May 22,1824, c. 136, 4 Stat. 25; May 19, 1828, c. 55, 4 Stat. 270; July 14, 1832, c. 227, 4 Stat. 583; August 30, 1842, c. 270, 5 Stat. 548, worsted stuff goods were recognized as manufactures of wool. By the acts of July 30,1846, c. 74, 9 Stat. 42; March 2,1861, 12 Stat. 252, Res. 15 ; July 14, 1862, c. 163,12 Stat. 543; June 30,1864, c. 171, 13 Stat. 202; March 2,1867, c. 197, 14 Stat. 559; March 3, 1883, c. 121, 22 Stat. 488, “manufactures of wool not otherwise provided for,” were separated from “ manufactures of worsteds not otherwise provided for,” and distinct duties levied on each, while from 1861 distinct duties were levied on articles specifically described, whether manufactured of wool or worsted. In Seeberger n. Cahn, 137 U. S. 95, 97, it was held that cloths popularly known as diagonals, and in trade as worsteds, were subject to duty under the act of March 3, 1883, as manufactures of worsted and not as manufactures of wool, the ground of decision being thus stated by Mr. Justice Gray delivering the opinion of the court: “ In the interpretation of the customs acts, nothing is better settled than that words are to receive their commercial meaning ; and that when goods of a particular kind, which would otherwise be comprehended in a class, are subjected to a distinct rate of duty from that imposed upon the class generally, they are taken out of that class for the purpose of the assessment of duties. “Of the two successive paragraphs in the customs act of 1883, upon which the parties respectively rely, the first imposes a certain scale of duties on ‘ all manufactures of wool of every description, made wholly or in part of wool, not spe- 214 OCTOBER TERM, 1897. Opinion of the Court. cially enumerated or provided for in this act; ’ and the second imposes a lower scale of duties on ‘ all manufactures of every description, composed wholly or in part of worsted.’ . . “ Though worsted is doubtless a product of wool, and might in some aspects be considered a manufacture of wool, yet manufactures of worsted being subjected by the second paragraph to different duties from those imposed by the first paragraph on manufactures of wool, it necessarily follows that a manufacture of worsted cannot be considered as a manufacture of wool, within the meaning of this statute.” This decision was announced November 17, 1890, but the controversy had been pending for a long time in the courts, and on May 9, 1890, an act was passed, “providing for the classification of worsted cloths as woollens,” by enacting: “ That the Secretary of the Treasury be, and he hereby is, authorized and directed to classify as woollen cloths all imports of worsted cloth, whether known under the name of worsted cloth or under the name of worsteds or diagonals or otherwise.” 26 Stat. 105, c. 200. And since that date no distinction for customs purposes between woollens and worsteds has been recognized by Congress. By the act of October 1, 1890, the same duties were levied upon worsted and woollen goods. Paragraphs 375 to 387 divided all wools, hair of the camel, goat, alpaca and other like animals into three classes, and levied certain duties on each class. Paragraphs 391 to 398 provided for certain duties on described articles, whether made wholly or in part of “ wool, worsted, the hair of the camel, goat, alpaca or other animals.” By the act of August 27, 1894, wool was put on the free list (par. 685)j and the paragraphs of the act of October 1,1890, classifying wools and levying duties on the different classes, were omitted. Paragraphs 280 to 286, inclusive, of Schedule K of this act prescribed duties on certain enumerated articles, whether composed wholly or in part of wool, worsted, the hair of the camel, goat, alpaca or other animal. There was no distinction made by either of these acts be- UNITED STATES v. KLUMPP. 215 Opinion of the Court. tween manufactures of wool and manufactures of worsted for the purposes of duty, and the word “worsted” seems to have been used out of abundant caution and as conducive to greater certainty. The act of July 24, 1897, commonly known as the Dingley act, omits the repetition of the words “ wool, worsted, hair of the camel, goat, alpaca and other animals,” and uses the single word “ wool.” Paragraph 383 provides: “ Whenever, in any schedule of this act, the word ‘ wool ’ is used in connection with a manufactured article of which it is a component material, it shall be held to include wool or hair of the sheep, camel, goat, alpaca or other animal, whether manufactured by the woollen, worsted, felt or any other process.” 30 Stat. 151, c. 11. Manifestly the distinction on which the decision in See-berger v. Cahn turned was done away with by the acts of October 1,1890, and August 27, 1894, as well as by that of May 9, 1890, and there certainly is no imperative ground for its reinstatement by technical construction. The reason for the postponing of the taking effect of the reduction of duties obviously had nothing to do with the process of manufacture, but related to the material of which the goods were composed, which material had been relieved from duty by paragraph 685 of the act. Congress undoubtedly concluded that the manufacturers of goods from wool had laid in a large stock of material, which equitably they should be allowed a reasonable time to work off, and that there was probably on hand a large stock of goods, to dispose of which reasonable time should be allowed, rather than that the large dealers should be induced to bring in foreign goods at a cost which involved ruinous competition ; while at the same time the wool growers ought to have their original market until they could adjust themselves to the new condition of things. The specific rate was compensatory, and, when stricken out, and the duty on raw material abolished, a postponement was provided for in order to avoid injustice. But the reason for postponing the reduction on manufact- 216 OCTOBER TERM, 1897. Opinion of the Court. ures of wool, which, on the face of the act, we think properly imputable to Congress, is as applicable to worsted goods as to any other goods fabricated from wool. It will be perceived that the acts of 1890 and 1894 did not levy a duty on “ worsted dress goods,” eo nomine, nor on worsted dress goods by commercial designation, nor on worsted dress goods as distinguished from woollen dress goods ; but a duty on dress goods, whether made of “ wool, worsted, the hair of the camel, goat, alpaca or other animals.” The description is addressed to the quality and material of the goods, namely, women’s and children’s dress goods, made of wool, worsted, etc. The principle then that the special designation of pn article by its commercial meaning should prevail over general terms used in the same or a later act, has no application. In Barber v. Schell, 107 U. S. 617, the words “cotton laces, cotton insertings,” etc., used in the act of 1846, were held to be designations of articles by special description of quality and material, and the general provision of 1857, transferring to Schedule C “ all manufactures composed wholly of cotton, which are bleached, printed or dyed,” whereby a different duty was imposed on such goods, was held to apply. Mr. Justice Blatchford said : “The designations qualified by the word ‘ cotton ’ in the act of 1846 are designations of articles by special description, as contra-distinguished from descriptions by a commercial name or a name of trade. They are designations of quality and material.” Cadwalader v. Zeh, 151 U. S. 171, 178. It is argued that the same reasoning which brings worsted goods within the words “ manufactures of wool,” would also compel the inclusion of goods composed of the hair of the camel and other animals, confessedly not covered by the phrase. Doubtless wool considered as the sheep’s coat might be said to be the sheep’s hair, and fleeces of the hair of the Angora goat, the Llama, the Alpaca, and other like animals, might be called their wool. In the Encyclopaedia Britannica, (9th ed. vol. 24, p. 653,) under the title of “ Wool and Woollen Manu- UNITED STATES v. KLUMPP. 217 Opinion of the Court. factures,” it is said : “Wool is a modified form of hair, dis-tino-uished by its slender, soft and wavy or curly structure, and by the highly imbricated or serrated surface of its filaments. The numerous varieties of the sheep are the most characteristic, as they are also by far the most important, producers of wool; but the sheep is by no means the only animal which yields wool employed for industrial purposes. The alpaca and other allied fibres obtained from the alpaca and its congeners in South America, the mohair yielded by the Angora goat and the soft, woolly hair of the camel are all wools of much industrial importance, while the most costly wool in the world is that yielded by the Cashmere goat of the Himalayan Mountains. At what point indeed it can be said that an animal fibre ceases to be hair and becomes wool it is impossible to determine, because in every characteristic the one class by imperceptible gradations merges into the other, so that a continuous chain can be formed from the finest and softest merino to the rigid bristles of the wild boar.” G. A. 2834; Lyon v. United States, 8 U. S. App. 409, 413. But the acts of 1890 and 1894, as well as prior tariff acts, distinguished the wool of the sheep from the hair of the camel, goat and other like animals, as raw materials. And there is nothing in this record from which to conclude that Congress felt obliged to make concessions by way of alleviating the effect of the act of 1894 on the production of the hair of the camel, the goat, the alpaca, and so on, in this country, or on manufactures thereof. We think that the words “ manufactures of wool,” in paragraph 297, had relation to the raw material out of which the articles were made, and that as the material of worsted dress goods was wool, such goods fell within the paragraph. Judgment of the Circuit Court of Appeals reversed; judgment of the Circuit Court also reversed, and the cause remanded to that court with a direction to affirm, the decision of the Board of General Appraisers. 218 OCTOBER TERM, 1897. Statement of the Case. BARRETT v. UNITED STATES (No. 1). ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA. Argued January 21,1898. — Decided February 21,1898. When a bill of exceptions does not contain the evidence, it is impossible for this court to know the ground on which the trial court proceeded in overruling a motion on the evidence to compel the district attorney to elect, and an exception in that regard will not be considered. In December, 1894, when the proceedings took place which are questioned in this case, there were not two judicial districts in the State of South Carolina, to the territorial limits of each of which the jurisdiction of the Circuit Court of the United States was confined. , The legislation on this subject from the commencement of the Government reviewed. Barrett was indicted, with others, as stated in the caption of the transcript of the record, “ at a Circuit Court of the United States for the Fourth Circuit in and for the District of South Carolina, begun and holden at Columbia in the district aforesaid, on the fourth Monday in November, 1894, before the Honorable Wm. H. Brawley, United States Judge for the District of South Carolina, holding said Circuit Court according to the form of the act of Congress in such cases made and provided,” for conspiracy to commit an offence against the United States, under sections 5440 and 5480 of the Revised Statutes, and, having been duly tried, was found guilty, and sentenced to imprisonment and fine. To review this judgment, this writ of error was prosecuted. The indictment commenced as follows: “ United States of America, I To wit; In the Circait Oourt. District of South Carolina, ) “ At a stated term of the Circuit Court of the United States for the District of South Carolina, begun and holden at Columbia, within and for the district aforesaid, on the fourth Monday of November, in the year of our Lord one thousand eight hundred and ninety-four, the jurors of the United States of America within and for the district aforesaid upon their BARRETT v. UNITED STATES (No. 1). 219 Statement of the Case. oaths respectively do present that Charles P. Barrett, [and others naming them,] together with divers other evil-disposed persons to the jurors aforesaid unknown, late of the district aforesaid, on the first day of July, in the year of our Lord one thousand eight hundred and ninety-two, at Spartanburg, in the State of South Carolina aforesaid, in the district aforesaid and within the jurisdiction of this court, being persons of evil minds and dispositions, wickedly devising and intending to commit the offence against the United States hereinafter set forth, fraudulently, maliciously and unlawfully did combine, conspire, confederate and agree together between and among themselves to commit against the United States this offence — etc., etc.” Certain exceptions were taken to the action of the court in refusing to sustain a challenge to the array of both grand and petit jurors on the ground that they were drawn from both the eastern and western districts of South Carolina, when the alleged offence was charged in the indictment to have been committed in the county of Spartanburg in the western district of said State; to the order of the court overruling defendant’s dexnurrer to the indictment on the ground that the offence was charged to have been committed in the county of Spartanburg, in the State of South Carolina, the same being in the western district of said State, although the indictment was found in the city of Columbia in the county of Richland in the eastern district thereof; to the refusal of the court to sustain defendant’s plea to the jurisdiction on the ground that, although the alleged offence was charged to have been committed in the county of Spartanburg, the same being in the western district of South Carolina, the trial was sought to be had in the city of Columbia in the county of Richland, in the eastern district of said State; to the denial by the court of defendant’s motion that the district attorney be required to elect on which one of several conspiracies disclosed by the evidence to have been committed, if any, he would ask for a conviction ; and to the refusal of the court to arrest judgment because the grand jurors who found the indictment and the petit jurors who found the verdict were drawn from the west- 220 OCTOBER TERM, 1897. Opinion of the Court. ern and eastern districts of South Carolina, although the offence was alleged to have been committed in the county of Spartanburg in the western district; because the indictment was found in the county of Richland in the eastern district at a time not authorized by law for the sitting of the United States court for the western district, and because the trial was had in the county of Richland in the eastern district for an offence committed in the western district. Mr. Charles C. Lancaster for plaintiff in error. Mr. Assistant Attorney General Boyd for defendant in error. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. As to the action of the court overruling defendant’s motion on the evidence to compel the district attorney to elect, the bill of exceptions does not contain the evidence, and it is impossible for this court to know the ground on which the Circuit Court proceeded. The exception in that regard need not therefore be considered. In respect of the other exceptions, they all present the same objection in different forms, namely, that the State of South Carolina was divided into two judicial districts, and that an indictment could not be lawfully found in the Circuit Court of the United States held in the eastern district or a trial be therein had, for a criminal offence committed in the western district. The Constitution provides that the trial of crimes shall be had in the State “ where the crime shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed,” Art. Ill, § 2, cl. 3; and by Amendment VI, that “ in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, BARBETT v. UNITED STATES (No. 1). 221 Opinion of the Court. which district shall have been previously ascertained by law.” This indictment was found December 3; the trial had December 6 to 11; and the defendant sentenced December 12, 1894, in the Circuit Court in session at Columbia. Were there at that time two judicial districts in South Carolina within the intent and meaning of the Constitution and the acts of Congress in that behalf ? The circuit court of each judicial district sits within and for that district; and its jurisdiction as a general rule is bounded by its local limits. Toland n. Sprague, 12 Pet. 300, 328; Devoe Manufacturing Company, Petitioner, 108 U. S. 401. At the same time courts may be required to be held at different places in a judicial district, and prosecutions for offences committed in certain counties may be required to be tried, and writs and recognizances to be returned at each place, but this does not affect the power of the grand jury sitting at either place to present indictments for offences committed anywhere within the district. Logan n. United States, 144 U. S. 263. As to where trials shall be had in a judicial district depends entirely on the legislation upon the subject. Rosencrans v. United States, 165 U. S. 257; Post n. United States, 161 U. S. 583. By the judiciary act of September 24, 1789, c. 20, the then United States were divided into thirteen districts, of which New Hampshire, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Georgia and South Carolina each constituted one district, called by the name of the State, as for instance, “ South Carolina district; ” while a part of the State of Massachusetts was erected into a district “ called Maine district,” and a part of the State of Virginia into a district “ called Kentucky district,” the remaining part of the State of Massachusetts being made a district “ called Massachusetts district,” and the State of Virginia, except so much thereof as was thereby made the district of Kentucky, a district “called Virginia district.” 1 Stat. 73. The plan was to make each of the States a judicial district, and to direct the appointment of a judge, a clerk to be ap- 222 OCTOBER TERM, 1897. Opinion of the Court. pointed by him, a district attorney and a marshal, for each district. But that part of Massachusetts now constituting the State of Maine and that part of the State of Virginia now forming the State of Kentucky were erected into independent districts under the names of “ Maine District ” and “ Kentucky District,” and the district court established in each was invested with the powers of a Circuit Court. By the fourth section these districts, “ except those of Maine and Kentucky,” were divided into three circuits, called the eastern, the middle and the southern circuits; and it was provided that circuit courts should be held “ in each district of said circuits,” by two of the justices of -the Supreme Court and “ the district judge of such districts.” North Carolina having ratified the Constitution, November 21, 1789, Congress by the act of June 4, 1790, c. 17,1 Stat. 126, gave effect to the judiciary act of 1789 in that State, erecting it into a district to be called “North Carolina district,” establishing a district court with one judge, and annexing the district to the Southern circuit. Rhode Island having ratified the Constitution, May 29, 1790, a similar act to give effect to the judiciary act was passed June 23,1790, c. 21,1 Stat. 128, by which Rhode Island was annexed to the Eastern circuit. From the first, then, district courts have been, in exceptional instances, vested with Circuit Court jurisdiction. On February 21, 1823, an act was passed, c. 11, entitled “ An act to divide the State of South Carolina into two judicial districts,” as follows: “ That the State of South Carolina be, and the same is hereby divided into two districts, in manner following, that is to say: the districts of Lancaster, Chester, York, Union, Spartanburg, Greenville, Pendleton, Abbeville, Edgefield, Newberry, Laurens and Fairfield; shall compose one district, to be called the western district, and the residue of the State shall form one other district to be called the eastern district. And the terms of the said district court, for the eastern district, shall be held at Charleston, at such times as they are now directed by law to be holden. An for the trial of all such criminal and civil causes, as are by law BARRETT v. UNITED STATES (No. 1). Opinion of the Court. 223 cognizable in the district courts of the United States which may hereafter arise or be prosecuted, or sued, within the said western district, there shall be one annual session of the said district court holden at Laurens court-house, to begin on the second Monday in May in each year; to be holden by the district judge of the United States of the State of South Carolina; and he is hereby authorized and directed to hold such other special sessions as may be necessary for the despatch of the causes in the said court, at such time or times as he may deem expedient, and may adjourn such special sessions to any other time previous to a stated session.” 3 Stat. 726. By an act approved May 25, 1824, c. 145, entitled “ An act to alter the times of holding the Circuit and District Courts of the United States for the district of South Carolina,” 4 Stat. 34, it was provided that the Circuit Court “ for the district of South Carolina” should annually be held “at Charleston on the second Tuesday of April; and at Columbia on the third Tuesday of November,” etc.; and that “ the times of holding the district court of the United States at Laurens court-house, South Carolina, shall be so altered that the said court shall hereafter convene on the Tuesday next ensuing after the adjournment of the Circuit Court of the United States at Columbia.” On March 3, 1825, this act was amended by providing that “the Circuit Court for the district of South Carolina at Columbia, South Carolina, shall commence on the fourth Tuesday of November, annually.” 4 Stat. 124, c. 78. By an act of May 4, 1826, c. 37, the sessions of the Circuit Court “for the District of South Carolina” were again changed, 4 Stat. 160; and again February 24, 1829, c. 19, 4 Stat. 335. By the act of March 1, 1845, 5 Stat. 730, c. 39, it was provided, referring to the Circuit Court, “ that the spring term of said court shall be held in and for the district of South Carolina at Charleston, on the Wednesday preceding the fourth Monday of March.” By an act approved August 16, 1856, c. 119, entitled “An 224 OCTOBER TERM, 1897. Opinion of the Court. act to alter the time for holding the district court in South Carolina, and for other purposes,” 11 Stat. 43, it was provided that so much of the act of May 25, 1824, as provided “for holding the District Court of the United States at Laurens court-house, South Carolina, on the Tuesday next ensuing after the adjournment of the Circuit Court of the United States at Columbia, be and the same is hereby repealed; and that in place thereof the said court shall be held at Greenville courthouse, South Carolina, on the first Monday in August in each year.” And it was further provided that the jurors for said court, grand as well as petit, should be drawn “ from the inhabitants of Greenville district, South Carolina,” except that the jurors for the first term of the court should be drawn at “ the term of the district court to be holden in the city of Charleston; ” and further that “ the said district court for Greenville, in addition to the ordinary jurisdiction and powers of a District Court of the United States, shall have jurisdiction of all causes (except appeals and writs of error) which now are or may be hereafter made cognizable in a Circuit Court of the United States, and shall proceed in the same manner as a Circuit Court.” The act of July 15, 1862, c. 178, 12 Stat. 576, provided that “ the districts of South Carolina, Georgia, Alabama, Mississippi and Florida, shall constitute the fifth circuit; ” and repealed the act or acts which vested circuit court powers in the district courts for the districts of Texas, Florida, Wisconsin, Minnesota, Iowa and Kansas; while by the act of March 3, 1863, c. 100, 12 Stat. 794, the districts of California and Oregon were constituted the tenth circuit; and so much of any act or acts as vested in the district courts for California and Oregon the power and jurisdiction of circuit courts was repealed. By the act of July 23, 1866, c. 210, 14 Stat. 209, it was provided that “ the districts of Maryland, West Virginia, Virginia, North Carolina and South Carolina shall constitute the fourth circuit.” The act of April 10, 1869, c. 22, 16 Stat. 44, authorized the appointment of a circuit judge “for each of the nine existing judicial circuits;” but that act, by the act of July 1,184O, c. BARRETT v. UNITED STATES (No. 1). Opinion of the Court. 225 186 was not to be construed “ to require a circuit court to be held in any judicial district in which a circuit court was not required to be held by previously existing law.” 16 Stat. 179. In the Ku Klux Cases, tried in the Circuit Court at Columbia in the fall of 1871, before Circuit Judge Bond and District Judoe Bryan, Mr. Reverdy Johnson objected to the issue of a venire to summon additional grand and petit jurors “ from the body of the district ” embracing the whole State, though he admitted that “ it is true that the circuit court has jurisdiction, as a court, over the entire district of South Carolina.” The court ruled that so far as the circuit court was concerned there was but one district in South Carolina. South Carolina Ku Klux Trials, pp. 8, 9, 10. The Revised Statutes were adopted June 22, 1874, (the second edition being published in 1878,).and contain the following sections: “Sec. 530. The United States shall be divided into judicial districts as follows: “Sec. 531. The States of California, Connecticut, Delaware, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, Oregon, Rhode Island, Vermont and West Virginia, each, constitute one judicial district.” “ Sec. 546. The State of South Carolina is divided into two districts, which shall be called the eastern and western districts of the district of South Carolina. The western district includes the counties of Lancaster, Chester, York, Union, Spartan-burg, Greenville, Pendleton, Abbeville, Edgefield, Newberry, Laurens and Fairfield, as they existed February 21, 1823. The eastern district includes the residue of said State.” “Sec. 551. A district judge shall be appointed for each district, except in the cases hereinafter provided. Every such judge shall reside in the district for which he is appointed, . . . “ Sec. 552. There shall be appointed in each of the States of Alabama, Georgia, Mississippi, South Carolina and Tennessee, one district judge, who shall be district judge for each of the districts included in the State for which he is appointed, and shall reside within some one of the said districts. . . .” VOL. CLXIX—15 226 OCTOBER TERM, 1897. Opinion of the Court. “ Sec. 571. The district courts for the western district of Arkansas, the eastern district of Arkansas at Helena, the northern district of Mississippi, the western district of South Carolina and the district of West Virginia, shall have in addition to the ordinary jurisdiction of district courts, jurisdiction of all causes, except appeals and writs of error, which are cognizable in a circuit court, and shall proceed therein in the same manner as a circuit court. “ Sec. 572. The regular terms of the district courts shall be held at the times and places following: ... In the eastern district of South Carolina, at Charleston, on the first Monday in January, May, July and October. In the western district, at Greenville, on the first Monday in August.” “ Sec. 604. The judicial districts of the United States are divided into nine circuits as follows: . . . Fourth. The Fourth Circuit includes the districts of Maryland, Virginia, West Virginia, North Carolina and South Carolina. . . .” “ Sec. 608. Circuit courts are established as follows: One for the three districts of Alabama, one for the eastern district of Arkansas, one for the southern district of Mississippi and one for each district in the States not herein named; and shall be called the circuit courts for the districts for which they are established.” “ Sec. 658. The regular terms of the circuit courts shall be held in each year, at the times and places following. . . : In the district of South Carolina, at Charleston, on the first Monday in April; and at Columbia, on the fourth Monday in November.” “ Sec. 767. There shall be appointed in each district, except in the middle district of Alabama, and the northern district of Georgia, and the western district of South Carolina, a person learned in the law, to act as attorney for the United States in such district. . . . The district attorney of the eastern district of South Carolina shall perform the duties of district attorney for the western district of said State.” Section 776 makes similar provision as to United States marshals for said districts. “ Sec. 563. The district courts shall have jurisdiction as follows: BABRETT v. UNITED STATES (No. 1). Opinion of the Court. 227 “First. Of all crimes and offences cognizable under the authority of the United States, committed within their respective districts, . . . the punishment of which is not capital. . . • “ Sec. 629. The circuit courts shall have original jurisdiction as follows: . . . Exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where it is or may be otherwise provided by law, and concurrent jurisdiction with the district courts of crimes and offences cognizable therein.” The Revised Statutes were compiled under an act of June 27,1866, c. 140, providing “ for the revision and consolidation of the statute laws of the United States,” 14 Stat. 74, the appointment of three commissioners being thereby authorized to accomplish the work. These commissioners were directed to arrange the statutes and parts of statutes “under titles, chapters and sections, or other suitable divisions and subdivisions, with headnotes briefly expressive of the matter contained in such divisions; also with side notes so drawn as to point to the contents of the text and with references to the original text from which each section is compiled.” By the act of March 2, 1877, c. 82, 19 Stat. 268, the preparation and publication of a new edition of the Revised Statutes was provided for, the work to be done by a single commissioner, who was required to add to the marginal references made in the previous revision. In United States v. Lacher, 134 U. S. 624, 626, we said : “ If there be any ambiguity in section 5467, inasmuch as it is a section of the Revised Statutes, which are merely a compilation of the statutes of the United States, revised, simplified, arranged and consolidated, resort may be had to the original statute from which this section was taken to ascertain what, if any, change of phraseology there is and whether such change should be construed as changing the law. United States v. Bowen, 100 U. S. 508, 513; United States v. Hirsch, 100 U. S. 33; Myer n. Car Company, 102 U- 8. 1, 11. Ami is saij that this is especially so where the act authorizing the revision directs marginal references 228 OCTOBER TERM, 1897. Opinion of the Court. as is the case here. 19 Stat. c. 82, § 2, p. 268; Endlich on Int. Statutes, § 51.” Section 546 appears under “Title XIII. The Judiciary. Chapter one. Judicial Districts; ” and the cross-reference in the margin is to the act of “ 21 Feb. 1823, c. 11, § 1, v. 3 p. 726.” When, then, Congress enacted this section it seems to have construed the act of 1823, not as dividing the State into two judicial districts, as indicated in the title of the act, but into two districts in the sense of geographical divisions, which is in harmony with the language used in the body of the act. At all events, the phraseology of section 546 is only consistent with the conclusion that the State constituted but one judicial district, containing two divisions, which were “ called the eastern and western districts of the district of South Carolina.” And it should be remembered that there was, during all this time, (and this has prevailed from thence hitherto,) but one judge, one attorney and one marshal for the district of South Carolina. It is said that in the first draft of the commission to revise the statutes, the commissioners recommended the adoption of a section corresponding to section 546, in this language: “The district of South Carolina is divided into two divisions, which will be called the eastern and western divisions of the district of South Carolina. The western division includes the counties of Lancaster, etc., as they existed February 21, 1823. The eastern division includes the residue of said State.” And it is argued that because section 546 was couched in its present language, notwithstanding the recommendation, that it therefore follows that Congress intended to divide the State into two judicial districts. We cannot concur in that view. While the use of the word “ division ” might have been more felicitous, yet we think the meaning of the statute was sufficiently plain, and that it would be inadmissible to recur to the draft of the commissioners to create a doubt where none existed. Moreover, it would be a much greater stretch of construction to say that because Congress did not see fit to use the word “ division,” therefore it should be held that the BARRETT v. UNITED STATES (No. 1). Opinion of the Court. 229 words actually employed, “of the district of South Carolina,” were inadvertently inserted, and should be rejected altogether. It should be noted that by section 608 Circuit Courts were established for each district in the States not therein named, the States specified being Alabama, Arkansas and Mississippi and yet that by section 571 certain district courts, including that for the western district of South Carolina, retained circuit court powers. Nevertheless, it was held by Chief Justice Waite, sitting with Judge Bond in the Circuit Court in 1877: “ As to the question of the jurisdiction of this court throughout the entire State of South Carolina, we decide, for the purposes of this trial, in favor of the jurisdiction. This is in accordance with the uniform practice of the court, without objection from any quarter, for nearly half a century.” United States n. Butler, 1 Hughes, 457, 463. And in 1886, it was said by Simonton, J., holding the Circuit Court: “All parts of the State of South Carolina are within the jurisdiction of this court. Its process runs all through the State. It does not know, in the sense which affects its jurisdiction, either the eastern or western district.” Young v. Merchant^ Ins. Co., 29 Fed. R.ep. 273, 275. However we are relieved from considering the effect upon the jurisdiction of a Circuit Court having jurisdiction throughout a State, constituting a single judicial district, of a part of the district being subjected to the jurisdiction of the district court clothed with circuit court powers, as the act of February 6, 1889, c. 113, 25 Stat. 655, in terms “established a circuit court of the United States in and for the western district of Arkansas, the northern district of Mississippi and the western district of South Carolina, respectively, as the said districts are now constituted by law ; ” and withdrew circuit court powers from said district courts. By the act of April 26, 1890, c. 165, 26 Stat. 71, it was provided that there should be “ four regular terms of the Circuit Court of the United States for the District of South Carolina in each year, as follows: In the city of Greenville on the 230 OCTOBER TERM, 1897. Opinion of the Court. first Monday of February and on the first Monday in August; in the city of Charleston on the first Monday of April; and in the city of Columbia on the fourth Monday of November;” and that “ the office of the clerk of said court shall be kept in the cities of Charleston and of Greenville, and the clerk shall reside in one of the said cities and shall have a deputy in the other.” And although the act then went on to prescribe terms “ of the District Courts for the Eastern District of South Carolina,” and “of the District Court in the Western District of South Carolina,” we think the operation of the prior sections was not thereby affected. It may be added that in the legislative, executive and judicial appropriation act of May 28, 1896, c. 252, §§ 7, 9, appropriations were made for the salaries (among others) of the United States district attorney “ for the eastern and western districts of the district of South Carolina,” and of the United States marshal “ for the eastern and western districts of the district of South Carolina.” 29 Stat. 140. From this review of the statutes we are unable to arrive at any other conclusion than that in 1894, when these proceedings were had, there were not two judicial districts in the State of South Carolina, to the territorial limits of each of which the jurisdiction of the Circuit Court was confined; and that the exceptions in this.regard must be held not to have been well taken. It is also suggested in the brief for plaintiff in error that error supervened in that the record does not affirmatively show the issue of the venire for the grand and petit juries; nor that the defendant was arraigned; nor that he was personally present when the verdict was rendered and sentence pronounced. But the record does show that the indictment was duly returned ; that motions to quash the indictment and the venire of grand and petit juries were made and overruled; that the defendant pleaded “ not guilty ” to said indictment; that the trial came on on that issue, and a petit jury was duly empanelled and sworn; that trial was had and a verdict of guilty returned, and sentence thereon entered; and that no exceptions BARRETT v. UNITED STATES (No. 2). 231 Opinion of the Court. were saved to any of these proceedings other than the exceptions before mentioned. The result is that the judgment must be Affirmed. BARRETT v. UNITED STATES (No. 2). ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF SOUTH CAROLINA. No. 175. Argued January 21, 1898.— Decided February 21,1898. It having been decided in Barrett v. United States, ante, 218, that the State of South Carolina constitutes but one judicial district, it follows that the indictment in this case was properly remitted to the next session of the District Court of that district. The case is stated in the opinion. Mr. Charles C. Lancaster for plaintiff in error. Mr. Assistant Attorney General Boyd for defendants in error. Mr. Chief Justice Fuller delivered the opinion of the court. This was an indictment for conspiracy under section 5440 of the Revised Statutes, found by the grand jury “ in the Circuit Court of the United States for the District of South Carolina begun and holden at Columbia within and for the district aforesaid, on the fourth Monday of November, in the year of our Lord one thousand eight hundred and ninety-four,” andon motion of the “United States attorney for the District of South Carolina,” was by the Circuit Court, January 30,1895, by order entered on its minutes, “ remitted from the Circuit Court of the United States for the district of South Carolina to the district court of the United States for the western district of South Carolina.” 232 OCTOBER TERM, 1897. Opinion of the Court. At the February term, 1895, of the District Court held at Greenville, in the western district, the District Judge presiding, the defendant pleaded not guilty; the cause was tried, defendant was found guilty, and, thereupon, was sentenced to imprisonment and fine. From this judgment a writ of error was prosecuted to this court. On the trial defendant raised certain objections presented by exceptions, which are enumerated in a bill of exceptions; by demurrer that the indictment was found in the eastern district of South Carolina, although the crime was charged to have been committed in the western district; by preliminary plea, “ that the jurors of the grand jury by whom the indictment was found were drawn, summoned and empanelled from both the eastern and western districts of South Carolina, instead of from the western district of said State alone; ” that the indictment was found in the circuit court of the United States for South Carolina, held in the city of Columbia, in the eastern district of said State, and was remitted to the district court for the western district of said State; by motion on the close of the testimony for the United States, “ that the attorney for the United States be required to elect on which one of the conspiracies he would ask for a conviction,” that is, of several distinct conspiracies, which the evidence tended to show; by motion in arrest that the grand jurors, who found the indictment, were drawn, summoned and empanelled from both the districts when the crime was charged to have been committed in one of them; that the indictment was found in the eastern district at a time when there was no law authorizing the “ holding any court of the United States for the western district of South Carolina; ” because the indictment was remitted “ not to the district court of the United States for the eastern district of South Carolina, but to the district court of the western district of said State.” The court overruled all these objections, in whatever form presented, and defendant excepted. Sections 817, 1037 and 1038 of the Revised Statutes are as follows: . “ Sec. 817. The grand and petit jurors for the district BARRETT v. UNITED STATES (No. 2). Opinion of the Court. 233 court sitting in the western district of South Carolina, shall be drawn from the inhabitants of said district who are liable, according to the laws of said State, to do jury duty in the courts thereof; and all jurors shall be drawn during the sitting of the court for the next succeeding term.” “ Sec. 1037. Whenever the district attorney deems it necessary, any circuit court may, by order entered on its minutes, remit any indictment pending therein to the next session of the district court of the same district, where the offence charged in the indictment is cognizable by the said district court. And in like manner any district court may remit to the next session of the circuit court of the same district any indictment pending in the said district court. . . . “Sec. 1038. Any district court may, by order entered on its minutes, remit any indictment pending therein to the next session of the circuit court for the same district, when, in the opinion of such district court, difficult and important questions of law are involved in the case ; and thereupon the proceedings in such case shall be the same in the circuit court as if such indictment had been originally found and presented therein.” No objection was raised that the petit jury by which defendant was tried was not, and it was conceded at the bar that it was, in fact, drawn from the inhabitants of the western district of the district of South Carolina, and no complaint is preferred in that regard. We have just decided that the.State of South Carolina constitutes but one judicial district, and, this being so, the indictment was properly remitted, in accordance with section 1037, to the next session of the district court of that district, begun and holden on the first Monday of February, 1895, in the western district of the district. All other questions have been disposed of adversely to plaintiff in error in the preceding case. Judgment affirmed. 231 OCTOBER TERM, 1897. Opinion of the Court. LEVIS v. KENGLA. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 173. Argued January 11,12,1898. —Decided February 21,1898. Decree affirmed on a question of fact only. The case is stated in the opinion. Mr. Henry E. Davis for appellant. Mr. H. B. Moulton was on his brief. Mr. J. Holdsworth Gordon for appellees. Mr. Justice Gray delivered the opinion of the court. This was a bill in equity, filed by the mortgagor of land in the District of Columbia, more than fifteen years after the sale and conveyance of the land under a power in the mortgage, to redeem the land and to enforce a trust therein. The Supreme Court of the District of Columbia, after a hearing upon pleadings and proofs, dismissed the bill; and its decree was affirmed by the Court of Appeals. 8 App. D. C. 230. The plaintiff appealed to this court. The following facts were either admitted or clearly proved: Philip Levis, being the owner of the land, on October 29, 1875, made a first mortgage thereof to trustees to secure the payment of his note to one Clokey for $2000, payable in three years with interest at the annual rate of ten per cent; and on May 13, 1876, made a second mortgage to one Weaver, as trustee, to secure the payment of a promissory note to Charles R. Kengla and George M. Kengla for $300, payable in one year, with like interest. Under this second mortgage, default having been made in the payment of the $300 note, the land was advertised for sale “ subject to a prior trust of $2000; and on October 29, 1877, was accordingly sold by auction, and was bought by the two Kenglas for the sum of $1000, LEVIS v. KENGLA. 235 Opinion of the Court. subject to the first mortgage for $2000. The plaintiff remained in possession of the land for about a year after the sale, and then removed upon notice from the Kenglas to quit, and they have ever since remained in possession. On January 17,1878, Weaver, as trustee under the second mortgage, conveyed the land to the Kenglas, in accordance with the terms of the sale, and received from them the price of $1000. On May 26, 1879, the Kenglas, with the knowledge of Levis, sold and conveyed part of the land to one Hume for the sum of $2756.89. Levis never claimed any interest in the land, after the conveyance to the Kenglas on January 17, 1878, until he filed the original bill in this case against them on March 29, 1893. In the bill, the plaintiff alleged that, when the land was put up for sale by auction on October 29, 1877, there being present no bidders nor any persons interested in the purchase of the property except the defendants, the threatened sale was objected to by the plaintiff, and was only permitted to be made, without protest, upon an oral statement by the defendants that they only desired to obtain out of the property the amount of the incumbrances thereon, and that, if he would permit them to go through the form of a sale, they would take and hold the property for his benefit, and would reconvey it to him, or so much thereof as was left after sufficient had been sold to satisfy their claim, together with the costs of the sale; whereupon, relying upon their promise, he suffered an informal sale of the property to be made to them by the trustee. The defendants, answering under oath, denied that, at any time before the sale to them, there was any understanding, agreement or suggestion, of any kind whatsoever, between them and the plaintiff, to impeach or qualify the absolute purchase of the property by them for their own use and benefit; and alleged that, after that sale, the plaintiff informed them that he believed he could obtain a purchaser for the property at a greater price; that, wishing the plaintiff to obtain as much as possible out of the property, they informed him that if he could obtain such purchaser within two weeks 236 OCTOBER TERM, 1897. Opinion of the Court. from the day of sale, they would convey the property to such purchaser, and turn over to the plaintiff the increased price obtained; that the plaintiff endeavored to obtain such purchaser, but finally came to them and informed them that he had failed to find a purchaser; whereupon they obtained a deed from the trustee. Upon a careful consideration of the conflicting testimony introduced at the hearing, this court fully concurs in one of the positions taken by the Court of Appeals, and stated in its opinion as follows: “ The complainant has not established his case by any such preponderance of testimony as is required by the rules of law to overthrow the title of the defendants. On the contrary, the preponderance of testimony is wholly against him. It is unreasonable to suppose that the defendants, having a good security as it stood, would have converted themselves into permanent trustees for an indefinite period for the sole and exclusive benefit of the complainant, the latter never at any time concerning himself with the payment of interest or taxes, or the care of the property in any way, for fifteen years. To establish such an arrangement as this, very positive and satisfactory evidence would be required; and without going into any examination of the testimony, it is sufficient for us here to say that, in our opinion, the testimony wholly fails to establish any such arrangement, or any arrangement whatever upon which a court of equity would be justified in acting. It would seem to be a conclusive answer to the complainant’s pretensions, that when, within a year after the sale, and when they deemed their indulgence to him to have reached its legitimate limit, they gave him notice to quit the premises, and thereby plainly intimated to him that they regarded any interest which he might have had in the premises as at an end, he submitted to the notice, without protest, and acquiesced in his exclusion from the property. This conduct, coupled with his utter disregard thereafter of any liability, either in regard to the property or in regard to the indebtedness, is wholly inconsistent with the existence of any such trust arrangement as that which he claims to have been made between him and the defendants.” 8 App. D. C. 237. WETZEL v. MINNESOTA RAILWAY COMPANY. 237 Statement of the Case. This view being decisive of the case, it becomes unnecessary to consider the defence of laches, or that of the statute of frauds; and a discussion of the testimony in detail could be of no value as a precedent, and would serve no useful purpose. Harrell v. Beall, 17 Wall. 590; Tyler v. Campbell, 106 U. S. 322. Decree affirmed. WETZEL v. MINNESOTA RAILWAY TRANSFER COMPANY. ♦ APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 94. Argued January 25,1898. —Decided February 21,1898. The decree of the Circuit Court, affirmed by the Circuit Court of Appeals, dismissing the bill in this case on the ground of laches was correct, and that decree is affirmed. This was a bill in equity filed in the United States Circuit Court for the District of Minnesota, by the widow (since remarried) and heirs at law of George W. Remsen against the Minnesota Railway Transfer Company, and over two hundred other defendants, to establish title to one hundred and sixty acres of land situate within the corporate limits of the city of St. Paul, which the complainants contended was held in trust for them by the defendants. The land was estimated to be of the value of over one million dollars. The facts of the case are substantially as follows : George W. Remsen was a private in Company K, Third Regiment, United States Infantry, and served in the Mexican war. By virtue of his enlistment as a soldier he became entitled, under section 9 of the act of Congress of February 11, 1847, c. 8, 9 Stat. 123, to locate a quarter section of government land, subject to private entry, under the regulations and restrictions established by the Commissioner of the General Land Office. This section further provided that in case of the death of 238 OCTOBER TERM, 1897. Statement of the Case. the soldier his right under the act should descend to his widow and minor children ; and, further, that in the event of the issuance of a land warrant to the minor children of a deceased soldier “ then the legally constituted guardian of such minor children shall, in conjunction with such of the children, if any, as may be of full age, upon being duly authorized by the orphans’ or other court having probate jurisdiction, have power to sell and dispose of such certificate or warrant for the benefit of those interested.” Remsen died in the military service in October, 1847, and thereafter a land warrant was issued on September 30, 1848, to “ Elizabeth Remsen, widow, Harriet A. Remsen, Mary Ann Remsen, John W. Remsen, Elizabeth Remsen arid George W. A. Remsen, children, heirs at law, of George W. Remsen, deceased.” On October 6, 1848, Mrs. Remsen qualified as guardian of all the minor children of Remsen, (except Harriet A., who was then seventeen years of age,) before the orphans’ court for the county of Philadelphia, Pennsylvania. The land warrant issued to the widow and minor children of Remsen was never located by any or either of them, but was sold and assigned on October 11, 1848, to one Nathan C. D. Taylor, of St. Croix County, Territory of Minnesota, who subsequently located it upon the land in controversy and to whom a patent was issued by the Government on March 20,1850, and from whom all the defendants in this case, directly or indirectly, claim title. The sale and assignment of the warrant were made without an order authorizing or confirming it, so far as appears, of the orphans’ court appointing Mrs. Remsen as guardian, and were consummated by Mrs. Remsen, acting in her own right and as the guardian of the minor children, with whom was joined Harriet A. Remsen. It was contended by the complainants in the Circuit Court, as well as in the Circuit Court of Appeals, that the sale and assignment of the land warrant to Taylor were utterly void as to the interests of all the minor children of George W. Remsen, other than Harriet A., who joined in the assignment, because the sale and assignment made by the mother as guar- WETZEL v. MINNESOTA RAILWAY COMPANY. 239 Opinion of the Court. dian was not authorized by any order or decree of the orphans’ court of the county of Philadelphia. The Circuit Court dismissed the bill on the ground of laches. 56 Fed. Rep. 919. Upon appeal that decree was affirmed by the Circuit Court of Appeals for the Eighth Circuit. 27 U. 8. App. 5M. Whereupon the complainants appealed to this court. Mr. Ernest Howard Hunter and Mr. John IK Hinsdale for appellants. Mr. Cushman K. Davis for appellees. Mr. Frank B. Kellogg and Mr. C. A. Severance were on his brief. Mr. Justice Brown, after stating the case, delivered the opinion of the court. The Circuit Court dismissed this bill on the ground of laches, and the Circuit Court of Appeals affirmed its action. There can be no doubt whatever of the • correctness of this conclusion. Indeed, a stronger case for the application of the doctrine of laches can scarcely be imagined. The warrant, which was issued in 1848, entitled the widow and minor children of Remsen to a grant of one hundred and sixty acres of public lands. This warrant was never located by the persons to whom it was issued, who appeared to have lived in Philadelphia, and to have been in straitened circumstances. The warrant was sold by them in 1848 to Nathan C. D. Taylor, and there is nothing to show that it did not realize for the widow and heirs its market value. Indeed, the Court of Appeals found that it was sold for its full value, and the widow testified that the proceeds were applied to the support of her-»self and the minor children of the deceased soldier. No fraud in the transaction was alleged or proved. Nothing appears to impeach the validity of the sale, except the fact that the widow, who had been appointed guardian of all the minor children, except the eldest, did not procure the consent of the orphans’ court in Philadelphia to make the sale, as required by the 240 OCTOBER TERM, 1897. Opinion of the Court. statute. This was doubtless a technical defect; but it did not show that the warrant was not actually transferred by the widow, acting for herself and her children, (except one who consented in her own behalf,) or that they did not receive full consideration for such transfer. It is true that the locator and his grantees in possession may have been in law chargeable with the knowledge that an order of the orphans’ court was never obtained ; but in view of the fact that the widow and heirs of Remsen lived in Philadelphia, a thousand miles from St. Paul, it is scarcely a matter of surprise that they did not investigate this subject with that care which they probably would have exercised had that court been more accessible. Particularly is this so, when it is considered that the officers of the land department, subsequently and after a full review of the facts, decided the warrant to have been properly transferred to Taylor, and issued a patent to him. It was not the foresight of the widow or heirs of Remsen which caused this warrant to be located upon lands so near to the thriving city of St. Paul, but that of Taylor, who appears to have been a resident of Minnesota; and this suit is a manifest attempt of the complainants to take to themselves the benefit of his action, in which they did not participate and of which they were entirely ignorant for over thirty years after the location had been made. Conceding that the minors were not affected by laches until they became of age, it appears that the youngest of them reached his majority in 1863, at which time the lands were worth about $1500. Then, if not before, the exercise of diligence became incumbent upon them. It was their duty to have informed themselves and to have acted. It is scarcely possible that they should not have known that their father was a soldier in the Mexican war, and they were chargeable by law with knowledge of the fact that he was entitled to a land warrant. If they did not know this as a matter of fact it was because their mother and eldest sister had failed to inform them of it; and it is inequitable to charge upon the defendants the entire consequences of this ignorance. WETZEL v. MINNESOTA RAILWAY COMPANY. 241 Opinion of the Court. Knowledge of the transfer seems to have finally come to them, not through any exertion of their own to inform themselves of the facts, but by an accidental meeting with a lawyer from Minnesota, who had in some way, probably by an examination of the title, become cognizant of the defect in the transfer. It was a mere matter of chance when they would be informed of the defect in the defendants’ title, or whether it would ever come to their knowledge at all. To permit them now, after a lapse of forty-four years from the time the warrant was issued, and of thirty years from the time the youngest child became of age, to impeach the transaction, would be an act of the most flagrant injustice to the present holders of the property. This property, which was probably not worth more than one or two hundred dollars at the time of the location of the land warrant, is now estimated to be worth at least a million, and is covered, or partly covered, by houses and business blocks. In the forty-four years that have elapsed since the warrant was issued these lands have been platted and sold in lots to purchasers, who were probably ignorant in fact, if not in law, of any defect in the title, and relied upon the validity of the transfer from the widow and heirs of Remsen and upon the patent from the United States, which appears to have been regularly issued after an examination of all the facts attending the granting, transfer and location of the land warrant by the officers of the land department. While the fact that the complainants were ignorant of the defect in the title and were without means to prosecute an investigation into the facts may properly be considered by the court, it does not mitigate the hardship to the defendants of unsettling these titles. If the complainant may put forward these excuses for delay after thirty years, there is no reason why they may not allege the same as an excuse after a lapse of sixty. The truth is, there must be some limit of time within which these excuses shall be available, or titles might forever be insecure. The interests of public order and tranquillity demand that parties shall acquaint themselves with their rights within a reasonable time, and although this time may be extended by their actual ignorance, or want of means, it is by no means illimitable. VOL. CLXIX—16 242 OCTOBER TERM, 1897. Opinion of the Court. If any authority were needed for the action of the courts below in dismissing the bill upon the ground of laches, it would be found in Felix v. Patrick, 145 U. S. 317. In that case a half-breed woman, belonging to the Sioux nation, received in 1857 a certificate of land scrip, issued under the then existing law, which provided that no “ transfer or conveyance of any of said certificates shall be valid.” Notwithstanding this provision the woman sold the scrip and executed a blank power of attorney, also a quitclaim deed in blank, in which the name of the attorney, the description of the land and the name of the grantee were afterwards filled in by the grantee, who had caused the papers to be executed. The grantee thereafter located a tract of land, and subsequently Congress confirmed his title to the same. The half-breed was ignorant of all these facts until 1887. In 1888, she having died in the meantime, her representatives filed a bill in equity against the grantee, charging him with having fraudulently obtained the power of attorney and the quitclaim deed, but failing to state when and how the frauds were discovered. It was held that as the bill did not state the time when the frauds were discovered, so that the court might clearly see whether they could have been discovered before, the bill was fatally defective; and, that under the circumstances, it would be inequitable to disturb the title of the defendants, who held adversely as against the halfbreed woman, and not by virtue of the power of attorney or quitclaim deed, which passed no title, or by the confirmatory act of Congress which granted no additional rights. Upon the facts disclosed in this record, it is entirely clear that the decree of the court below was correct, and it is therefore Affirmed. DULL v. BLACKMAN. 243 Syllabus. DULL v. BLACKMAN. ERROR TO THE SUPREME COURT OF THE STATE OF IOWA. No. 192. Argued January 18, 19,1898. —Decided February 21, 1898. On June 25, 1889, plaintiff in error, Daniel Dull, being the owner of the tract of land in controversy, conveyed the same by warranty deed executed by himself and wife to John E. Blackman. Blackman, on August 2, 1889, made a deed of the same land to George F. Wright as security formoneys to be advanced by Wright. On the 29th of February, 1892, Blackman commenced this suit in the District Court of Pottawattamie County, Iowa, to compel a reconveyance by Wright on the ground of his failure to advance any money. Prior thereto, and on January 30, 1892, Blackman had executed a deed of the land to Edward Phelan, which conveyance was at first conditional but by agreement signed by the parties on September 15, 1892, was made absolute. On the 17th of September, 1892, Phelan filed his petition of intervention, setting forth his rights in the matter under the deed of January 30 and the agreement of September 15, and also making plaintiffs in error and others defendants, alleging that they claimed certain interests in the property, and praying a decree quieting his title as against all. On January 24, 1893, plaintiff’s counsel withdrew his appearance for Blackman, and, upon his application, was allowed to prosecute the action in the name of Blackman for and in behalf of Phelan, the intervenor. On February 2, 1893, the plaintiffs in error appeared in the suit and filed an answer denying all the allegations in plaintiff’s petition and in the petition of intervention. On the 15th of that month they filed an amended answer and a cross petition, in which they set up that Blackman had obtained his deed from them by certain false representations, and that a suit was pending in the Supreme Court of the State of New York, in which Daniel Dull was plaintiff, and Blackman, Wright, Phelan and others were defendants, in which the same issues were made and the same relief sought as in the case at bar. On May 29 they filed an amendment to their answer and cross petition setting forth that the case pending in the Supreme Court of New York had gone to decree, and attached a copy of that decree. The suit in the Supreme Court of the State of New York was commenced on the 3d of November, 1892. Blackman was served personally within the limits of that State, but the other defendants therein, Wright, helan and Duffle their counsel, were served only by delivering to them in Omaha, Nebraska, a copy of the complaint and summons. No appearance was made by them, notwithstanding which the decree was entered against them as against Blackman, and was a decree establishing the title of Daniel Dull, setting aside the deed made by him and his wife to lackman, and enjoining the several defendants from further prosecut- 214 OCTOBER TERM, 1897. Statement of the Case. ing the action in the Iowa court. After certain other pleadino's and amendments thereto had been made the case in the District Court of Pottawattamie County, Iowa, came on for hearing, and upon the testimony that court entered a decree quieting Phelan’s title to the land as against any and all other parties to the suit, subject, however, to certain mortgage interests which were recognized and protected, but which are not in any way pertinent to this controversy between Dull and wife and the defendants in error. On appeal to the Supreme Court of the State such decree was, on January 21, 1896, affirmed. Held, that the decree of the Supreme Court of Iowa was right, and that it should be affirmed. The facts in this case are as follows: On June 25, 1889, plaintiff in error, Daniel Dull, being the owner of the tract of land in controversy, conveyed the same by warranty deed executed by himself and wife to John E. Blackman. Blackman, on August 2, 1889, made a deed of the same land to George F. Wright as security for moneys to be advanced by Wright. On the 29th of February, 1892, Blackman com-meficed this suit in the District Court of Pottawattamie County, Iowa, to compel a reconveyance by Wright on the ground of his failure to advance any money. Prior thereto, and on January 30, 1892, Blackman had executed a deed of the land to Edward Phelan, which conveyance was at first conditional but by agreement signed by the parties on September 15, 1892, was made absolute. On the 17th of September, 1892, Phelan filed his petition of intervention, setting forth his rights in the matter under the deed of January 30 and the agreement of September 15, and also making plaintiffs in error and others defendants, alleging that they claimed certain interests in the property, and praying a decree quieting his title as against all. On January 24, 1893, plaintiff’s counsel withdrew his appearance for Blackman, and, upon his application, wras allowed to prosecute the action in the name of Blackman for and in behalf of Phelan, the intervenor. On February 2, 1893, the plaintiffs in error appeared in the suit and filed an answer denying all the allegations in plaintiffs petition and in the petition of intervention. On the 15th of that month they filed an amended answer and a cross petition, in which they set up that Blackman had obtained his deed from them by certain false representations, and that a suit DULL v. BLACKMAN. 245 Opinion of the Court. was pending in the Supreme Court of the State of New York, in which Daniel Dull was plaintiff, and Blackman, Wright, Phelan and others were defendants, in which the same issues were made and the same relief sought as in the case at bar. On May 29 they filed an amendment to their answer and cross petition setting forth that the case pending in the Supreme Court of New York had gone to decree, and attached a copy of that decree. The suit in the Supreme Court of the State of New York was commenced on the 3d of November, 1892. Blackman was served personally within the limits of that State, but the other defendants therein, Wright, Phelan and Duffie their counsel, were served only by delivering to them in Omaha, Nebraska, a copy of the complaint and summons. No appearance was made by them. Notwithstanding which the decree was entered against them as against Blackman, and was a decree establishing the title of Daniel Dull, setting aside the deed made by him and his wife to Blackman, and enjoining the several defendants from further prosecuting the action in the Iowa court. After certain other pleadings and amendments thereto had been made the case in the District Court of Pottawattamie County, Iowa, came on for hearing, and upon the testimony that court entered a decree quieting Phelan’s title to the land as against any and all other parties to the suit, subject, however, to certain mortgage interests which were recognized and protected, but which are not in any way pertinent to this controversy between Dull and wife and the defendants in error. On appeal to the Supreme Court of the State such decree was, on January 21, 1896, affirmed, from which judgment of affirmance plaintiffs in error have brought the case here. Mr. Alfred G. Safford and Hr. Isaac N. Flickinger for plaintiffs in error. Hr. Omri F. Hibbard was on their brief. Mr. Winfield S. Strawn for defendants in error. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. 246 OCTOBER TERM, 1897. Opinion of the Court. The contention of the plaintiffs in error, and in it is the only question of a Federal nature presented by the record is that the courts in Iowa did not give that full faith and credit to the decree rendered in the Supreme Court of the State of New York to which under the Constitution of the United States it was entitled. From the foregoing statement of facts it appears clearly that although the suit in the Iowa court was originally commenced by Blackman, and though his name was, under the practice prevailing in Iowa, never dropped from the title of the case, it was by reason of the intervention of Phelan and the orders of the court simply prosecuted in his name for the benefit of Phelan, the intervenor; that this intervention of Phelan, and bis petition in support thereof, making the plaintiffs in error and others defendants thereto, was filed on the 17th of September, 1892, nearly two months before the commencement of the suit in New York. It also appears that while Blackman, Phelan, Wright and others were named as parties defendant to the suit in New York, Blackman was the only one served within the territorial jurisdiction, and the only one appearing in that court. The other defendants were attempted to be brought in by service of summons in the State of Nebraska, and never entered any appearance in the suit. It is true the decree in the Supreme Court of the State of New York was entered before the trial of this case in the District Court of Iowa, and the record of the proceedings in the New York court was in evidence at the trial in the Iowa court. It further appears from the findings of fact made by the trial court in Iowa, and sustained by the Supreme Court of that State, that the entire right and title had passed from Blackman to Phelan in September, 1892, nearly two months before the commencement of the suit in New York. Upon these facts we remark that as the land, the subjectmatter of this controversy, was situate in Iowa, litigation in respect to its title belonged properly to the courts within that State, Ellenwood v. Marietta Chair Co., 158 U. S. 105, 107, although if all the parties interested in thé land were brought personally before a court of another State, its decree would be DULL v. BLACKMAN. 247 Opinion of the Court. conclusive upon them and thus in effect determine the title. The suit in New York was one purely in personam. Any decree therein bound simply the parties before the court and their privies, and did not operate directly upon the lands. As said by this court in Carpenter n. Strange, 141 U. S. 87,105: “ The real estate was situated in Tennessee and governed by the law of its situs, and while by means of its power over the person of a party a court of equity may in a proper case compel him to act in relation to property not within its jurisdiction, its decree does not operate directly upon the property nor affect the title, but is made effectual through the coercion of the defendant, as, for instance, by directing a deed to be executed or cancelled by or on behalf of the party. The court has no ‘ inherent power, by the mere force of its decree, to annul a deed or to establish a title.’ ” In that suit the only party defendant subject to the jurisdiction of the court was Blackman. The other parties were not served with process within the limits of the State of New York and never entered any appearance in the case. The service attempted to be made by delivering a copy of the summons to them in the State of Nebraska was ineffectual to bring them within the jurisdiction of that court. “ Where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a nonresident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the nonresident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability. Pennoyer v. Neff, 95 U. S. 714, 727. “ Such a decree, being in personam merely, can only be supported, against a person who is not a citizen or resident of the 248 OCTOBER TERM, 1897. Opinion of the Court. State in which it is rendered, by actual service upon him within its jurisdiction.” Hart v. Sansom, 110 U. S. 151, 155. We remark again that while a judgment or decree bindsnot merely the party or parties subject to the jurisdiction of the court but also those in privity with them, yet that rule does not avail the plaintiffs in error, for Phelan acquired his rights prior to the institution of the suit in New York and was therefore not privy to that judgment. “ It is well understood, though not usually stated in express terms in works upon the subject, that no one is privy to a judgment whose succession to the rights of property thereby affected, occurred previously to the institution of the suit. A tenant in possession prior to the commencement of an action of ejectment cannot therefore be lawfully dispossessed by the judgment unless made a party to the suit. ... No grantee can be bound by any judgment in an action commenced against his grantor subsequent to the grant, otherwise a man having no interest in property could defeat the estate of the true owner. The foreclosure of a mortgage, or of any other lien, is wholly inoperative upon the rights of any person not a party to the suit, whether such person is a grantee, judgment creditor, attachment creditor, or other lienholder.” Freeman on Judgments, (1st ed.,) § 162. As Phelan was not brought within the jurisdiction of the New York court, and as the suit in that court was instituted nearly two months after he had acquired full title to the real estate, the decree of that court did not bind him as a party, nor bind him as in privity with Blackman, his grantor. The Supreme Court of Iowa did not err in so holding. The decree is Affirmed. UNITED STATES u LOUISVILLE. 249 Statement of the Case. UNITED STATES v. LOUISVILLE.1 APPEAL FROM THE COURT OF CLAIMS. No. 105. Argued January 5, 6, 1898. —Decided February 21, 1898. The act of March 3, 1891, c. 540, providing for the payment to the city of Louisville of the amount found due under the act of June 16, 1890, c. 424, was in the nature of a judgment, final in its character, and subject to no appeal, and the duties of the officers of the Government thereafter charged with the payment of the moneys appropriated by that act were not discretionary, and were limited to the clerical functions of making payment as directed by the act. By the act of February 25, 1893, c. 165, making provision for the payment of further and other claims of the same character, Congress did not intend to in anywise open the transactions which had been closed by the payment of the moneys directed in the act of 1891. This is an appeal from a judgment of the Court of Claims in favor of the city of Louisville, based upon a petition filed in that court for the recovery of seventeen thousand and some odd dollars, alleged to be due the city from the Government on account of taxes improperly collected. It appears that between the years 1862 and 1872 the city of Louisville, Kentucky, owned a large amount of bonds and stock of the Louisville and Nashville Railroad Company, upon which the company paid interest and declared cash dividends, retaining, however, during most of the time an undistributed surplus. Under the internal revenue law, § 122, act of June 30,1864, c. 173,13 Stat. 223, 284, in force during this period, the company paid taxes to the United States upon its gross receipts, its undistributed surplus, the interest payable on its bonds, and its cash dividends. The taxes paid on interest and dividends were deducted from the amounts due as interest and dividends, so that the revenues of the city of Louisville accruing from these sources were diminished to the extent of such deductions; JThe docket title of this case is “ The United States, Appellant, v. The Commissioners of the Sinking Fund of the City of Louisville, and the City of Louisville.” 250 OCTOBER TERM, 1897. Statement of the Case. but these deductions were not known to the Commissioners of the Sinking Fund of the city until the time had expired for an application to the Government to be repaid the taxes so deducted. In 1872, in the case of United States v. Railroad Company, 17 Wall. 322, this court decided that a tax under the above-named section 122 of the internal revenue act, upon the interest on bonds issued by a railroad company, was a tax upon the creditor and not upon the corporation paying it, and that a municipal corporation, being a portion of the sovereign power of a State, was not subject to taxation by Congress upon its municipal revenues. The time for making application for repayment of the taxes thus illegally obtained having passed, Rev. Stat. §§ 3220, 3228, resort was had to Congress, which enacted the statute approved June 16,1890, c. 424, 26 Stat. 157. The statute authorized and required the Secretary of the Treasury and.the Commissioner of Internal Revenue “to audit and adjust the claim of the board of sinking fund commissioners of the city of Louisville, Kentucky, for internal revenue taxes on dividends on shares of stock owned by said board for said city of Louisville in the Louisville and Nashville Railroad Company, to the extent such taxes were deducted from any dividends due and payable to said board, and to pass upon said claim and render judgment thereon, in the same manner and with the same effect as if said claim had been presented and prosecuted within the time fixed and limited by law.” Pursuant to the provisions of this act, the city of Louisville presented to the proper officers of the Treasury Department its claim to recover taxes to the amount of $65,578.32, of which the officers allowed $42,514.03, the latter sum being made up, as stated, of two items, one of $24,801.14, taxes which had been deducted from cash dividends, and $17,712.89, taxes which had been deducted from surplus profits which, on the 17th of November, 1867, had been set apart by resolution of the board of directors of the railroad company as the basis of a stock dividend, which was directed to be distributed in February, 1868. The amount of $42,514.03, having been UNITED STATES v. LOUISVILLE. 251 Statement of the Case. audited and allowed, was reported by the Secretary of the Treasury to Congress for its action, there being no appropriation from which the money awarded the city could be paid. Under the act of March 3, 1891, c. 540, being an appropriation to supply deficiencies, 26 Stat. 862, at 867, Congress provided as follows: “ Payment to city of Louisville, Kentucky : For payment to the city of Louisville, Kentucky, the amount found due, under the act of Congress approved June 16, 1890, and reported to Congress in House Executive Document No. 260, of the present session, $42,514.03.” The amount thus appropriated was duly paid to the city, as directed by Congress. Subsequently another application was made to Congress, and that body passed the act approved February 25, 1893, 27 Stat. 477, a copy of which is set forth in the margin.1 Under this act the city of Louisville applied to the proper officers of the Government for a further refund of $34,667.80 on account of taxes claimed to have been illegally exacted. One item in this last-named claim, amounting to $3008.40, 1 “Chap. 165. An act for the benefit of the State of Kentucky, Logan and Simpson Counties, and of Louisville, Kentucky, and of Sumner and Davidson Counties, Tennessee. “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, be, and he is hereby, authorized and required to audit and adjust the claims of the Sinking Fund Commissioners of the State of Kentucky, of Logan and Simpson Counties in said State, of the city of Louisville, Kentucky, and of Sumner and Davidson Counties, Tennessee, for internal revenue taxes collected on railroad dividends on stock and on interest on railroad bonds owned by said counties and city, respectively, in the Louisville and Nashville Railroad Company, and of said State for internal revenue taxes collected and interest on railroad bonds of the railroad from Louisville to Lexington and on dividends on stock of said railroads owned by said State, and due and payable to said Boards of Sinking Fund Commissioners, respectively, and to said State, counties and city, to the extent that such taxes were deducted from any dividends or interest due and payable to such boards, respectively, and which have not been heretofore refunded, and for this purpose any statute of limitations to the contrary notwithstanding, sections nine hun-dred and eighty-nine, thirty-two hundred and twenty, thirty-two hundred and twenty-six, thirty-two hundred and twenty-seven, and thirty-two hun 252 OCTOBER TERM, 1897. Counsel for Appellants. the appellants insist was for taxes collected by the Government from the railroad company upon its undistributed surplus in 1868 and 1871, and that this item had been included in the claim presented in 1890, but had not been allowed because, as stated in the determination made by the Commissioner of Internal Revenue, the act of June 16, 1890, under which the application for refunding was made, limited an adjustment of the claim “ to the extent that such taxes were deducted from any dividends due and payable, and did not direct the adjustment of the claim to the extent that taxes were deducted from interest or gross receipts.” The Acting Commissioner of Internal Revenue audited and adjusted the claim made under the act of 1893, at its full amount, and as incidental to such audit and adjustment he assumed to reexamine the claim allowed in 1891. The result of such reexamination of the latter claim was a reduction to the extent of $3548.89, which sum was deducted from the amount allowed under the act of 1893, reducing it to the sum of $31,359.02. When the claim reached the First Comptroller a further sum of $17,633.85 was deducted by him, which consisted principally of the amount allowed and paid in 1891 for taxes on surplus, which left a balance payable to the city of $13,725.17, for which sum the Comptroller directed a draft to be issued. To recover the amount thus deducted from the claim as audited and allowed under the act of 1893, the city of Louisville commenced this proceeding in the Court of Claims, which rendered judgment in its favor for the amount demanded. The Government brought the case here for review. JZr. Charles C. Binney for appellants. Mr. Assistant Attorney General Pradt was on his brief. dred and twenty-eight of the United States Revised Statutes are hereby made applicable and available with the force and effect, as if protest and demand for payment had been made within the time prescribed by said sections; and the amounts, when ascertained, as aforesaid and not heretofore refunded, shall be paid out of the permanent annual appropriation provi e for similar claims allowed within the present fiscal year. “ Approved February 25, 1893.” UNITED STATES v. LOUISVILLE. Opinion of the Court. 253 Mr. Alphonso Hart for appellees. Air. Fontaine T. Fox was on his brief. Me. Justice Peckham, after stating the facts, delivered the opinion of the court. The claim here made is that the officers of the Government committed an error in auditing and allowing the amount paid in 1891 for taxes on surplus, as those taxes, it is said, were not referred to in the act of 1890 and should not have been reported to Congress or ordered paid by it, and that the power to review this action (if not previously existing) was created by the act of 1893, above set forth. We think the judgment of the Court of Claims is right. By the payment under the act of 1891 the questions involved were ended. It was not only an auditing and allowance by the proper officers of the Treasury of a claim over which they had jurisdiction, but the amount was paid under the direct commandment of an act of Congress specifically appropriating the particular sum reported to it as due to the city of Louisville and for the payment of which the authority of Congress was needed. Laying for a moment the act of 1893 out of view, it seems clear to us that there was no power on the part of the officers of the Treasury to reexamine the correctness of the claim paid by virtue of the act of 1891, or to reverse that action on the ground that a mistake of law had been made in the decision reported to Congress upon which it passed the act last named. The officers who acted under the statute of 1890 (the Secretary of the Treasury and the Commissioner of Internal Revenue) performed their duties in examining, auditing and allowing the claim as they thought the facts and the law required. It was not the case of an allowance of an ordinary claim against the Government by an ordinary accounting officer, any more than was the case of United States v. Kaufman, 96 U. S. 567, 570, or that of United States v. Savings Bank, 104 U. S. 728. When the decision of these officials was by the Secretary of the Treasury reported to Congress and an appropriation made 254 OCTOBER TERM, 1'897. Opinion of the Court. by that body in 1891 of the specific sum mentioned in the report, with directions to pay the amount thus appropriated to the city of Louisville, the time for examination had passed, and it was the duty of the proper officers of the Government to pay the money as directed by the statute. We also think the subsequent statute of 1893 gave no right to the Treasury officers to interfere with or in any manner to review the action of the Government under the statutes of 1890 and 1891. It may be true that a small portion of the claim made by the city under the act of 1893 had theretofore been made under the act of 1890, but that portion had then been rejected and, of course, never audited, allowed or paid. Because a small sum which had once been rejected was included in the principal claim made by the city in 1893, no sort of foundation was thereby laid for the assertion of a right on the part of the Government to review and, in substance, reverse the prior action of the Treasury Department in allowing a claim which had been thereafter affirmed by Congress with a substantial direction to pay the amount thereof, and which had been paid accordingly. The authority given by the act of 1893 required the officers therein named to audit and adjust the claims of the city of Louisville for internal revenue taxes to the extent that such taxes were deducted from any dividends or interest due and payable to the city and which had not been theretofore refunded, and for this purpose the statute of limitations was repealed and certain sections of the Revised Statutes were made applicable, and the amounts, when ascertained and not theretofore refunded, were directed to be paid out of the permanent annual appropriation provided for similar claims allowed within the present fiscal year (1893). We think this provision gave no jurisdiction to interfere with or to review the action of the Treasury officials under the act of 1890, or the action of Congress in enacting the statute of 1891. The act of 1891 was in the nature of a judgment, final in its character, and subject to no appeal, and the duties of the officers of the Government thereafter charged with the payment of the moneys appropriated by that act were not discretionary, LOGAN COUNTY v. UNITED STATES. Counsel for Parties. 255 and were limited to the clerical functions of making payment, as directed by the act. United States v. Jordan, 113 U. S. 418. It cannot be possible that Congress had the least intention when making provision for the payment of other and further claims of the same character, to in anywise open the transactions which had been closed by the payment of the moneys directed by the act of 1891. We have no doubt whatever that if Congress had any such intention it would have made it clear by the use of far different language from that which is contained in the act of 1893. It would have said, in so many words, that, in proceeding under the statute of 1893, the officers named therein should examine into the correctness of the decisions arrived at in 1890 and 1891. The judgment of the Court of Claims was right, and it should, therefore, be Affirmed. LOGAN COUNTY v. UNITED STATES.1 APPEAL FROM THE COURT OF CLAIMS. No. 167. Argued January 5, 6, 1898. — Decided February 21, 1898. Where a railroad company pays a tax on its undistributed surplus under the internal revenue act of June 30, 1864, c. 173, 13 Stat. 223, it is thereby paying a tax upon its own property, and such payment cannot be regarded as a payment of a tax upon a stock dividend thereafter declared by the company. The case is stated in the opinion. Mr. Charles C. Binney for appellants. Mr. Assistant Attorney General Pradt was on his brief. Mr. Alphonso Hart for appellees. Mr. Fontaine T. Fox was on his brief. 1 The docket title of this case is “ The Commissioners of the Sinking Fund of Logan County and the County of Logan, Kentucky, Appellants, v. The United States.” 256 OCTOBER TERM, 1897. Opinion of the Court. Mr. Justice Peckham delivered the opinion of the court. This application was made to recover taxes heretofore paid, and, like the one in the preceding case, it is based upon the statement that the tax could not be imposed as against the county of Logan, because it was a municipal corporation, and not subject to taxation by Congress upon its municipal revenues. United States v. Railroad Company, 17 Wall. 322. Therefore, if it appear that the railroad company has deducted from the dividend due the county the amount of any tax paid to the Government on a stock dividend issued by the company, the appellants are entitled to recover. The facts are quite simple. On the 14th of March, 1894, the appellants filed their petition in the Court of Claims for the refunding of taxes which they claimed to be entitled to under the act of February 25,1893, c. 165, 27 Stat. 477. The act is set out in full in the margin in the preceding case of United States v. City of Louisville, ante, p. 249. The claim made herein was for internal revenue taxes alleged to have been illegally assessed, and amounting to the sum of $17,606.14. Under the provisions of the statute above cited the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, audited and adjusted this claim at the sum of $15,397.75, and in due course of procedure it came to the Comptroller of the Treasury, who directed a warrant to issue for the sum of but $9533.54 (the total amount withheld from the county on account of taxes on cash dividends), and he refused to include in the warrant the sum of $5864.21, being the balance of the $15,397.75 which had been audited and adjusted as above mentioned, because, as the Comptroller held, the claim for taxes paid on account of stock dividends was illegal and unauthorized, and this suit is brought to recover the sum which was rejected by the Comptroller, and which he refused to pay. The Court of Claims gave judgment in favor of the Government and dismissed the petition of claimants, who have appealed to this court from the judgment of dismissal. The point first made by the counsel for the claimants is LOGAN COUNTY v. UNITED STATES. 257 Opinion of the Court. that the audit and adjustment made by the Commissioner of Internal Revenue, and approved by the Secretary of the Treasury, under the act of Congress of 25th of February, 1893, was an award having all the force of a judgment which could not be questioned either by the Comptroller of the Treasury or by the courts, except for fraud or mistake. The cases of United States N. Kaufman, 96 U. S. 567, and United States v. Savings Bank, 104 U. S. 728, are cited for the purpose of showing the conclusiveness of the action of the officers above named. All that those cases hold is, that where in a case somewhat similar to this the claim had been allowed by the officers named in the statute, “ the allowance may be used as the basis of an action against the United States in the Court of Claims, where it will \)vprima facie evidence of the amount that is due, and put on the Government the burden of showing fraud or mistake. This burden is not overcome by proving that some other officer in the subsequent progress of the claim through the department declined to do what the law or Treasury regulations required of him before payment-could be obtained. The fact of fraud or mistake must be established by competent evidence, the same as any other fact in issue. An allowance by the commissioner in this class of cases is not the simple passing of an ordinary claim by an ordinary accounting officer, but a statement of accounts by one having authority for that purpose under an act of Congress.” United States v. Savings Bank, 104 U. S. 728, at 733. The question of the conclusiveness of the action of the officers of the Government under their general powers is also referred to in Wisconsin Central Railroad v. United States, 164 U. S. 190, and it is there held that the Government is not bound by the act of its officers in making an unauthorized payment under misconstruction of the law. However, the act of the Commissioner of Internal Revenue and the Secretary of the Treasury in approving the claim may be assumed to prima facie evidence that the amount so approved by them was due the claimant from the Government, and the burden therefore rested upon the Government of showing that the allowance of VOL. CLXIX—17 258 OCTOBER TERM, 1897. Opinion of the Court. the amount claimed in this proceeding was made through a mistake on the part of those officials. Unless this mistake is made apparent by the findings of the court below, its judgment in refusing to give effect to the allowance of the Commissioner of Internal Revenue, approved by the Secretary of the Treasury, might have to be reversed. If, however, the 'findings show that those officials did make a mistake in allowing that portion of the claim made which is now in suit, the judgment of the court below, so far as this point is concerned, must be affirmed. The defence made by the Government upon the merits is based on the provisions of the statute of 1893, and upon the allegations that the findings of the court below substantially show there were no taxes paid upon any stock dividends declared in 1867 or 1868. It is added that the claim on the part of the county of Logan was not in reality for any taxes actually paid on “ dividends in scrip ” or “ stock dividends ” issued to appellants, but that it was for a certain proportion of the taxes paid by the railroad company on that part of its profits which were not distributed in dividends, and which in fact constituted what the internal revenue acts of 1864 and 1866 called “profits carried to the account of any fund or used for construction,” and which funds were taxable under those acts, as the property of the corporation. Counsel insists that a tax upon undistributed profits in the treasury or belonging to the corporation is like a tax on gross earnings, a tax on the corporation on account of its own property, and not to be thereafter recovered by this claimant, either under the act of 1893 or under those sections of the United Stages Revised Statutes therein alluded to. It must be remembered that the Court of Claims under the act of 1893 was simply given jurisdiction to examine a claim which was otherwise barred by the statute of limitations. The act gave no other right and created no claim against the Government not otherwise existing. The right of recovery for an illegal tax had been provided for by the Revised Statutes of the United States, section 3220, and that remedy could have been pursued for two years after the payment o LOGAN COUNTY v. UNITED STATES. 259 Opinion of the Court. any such tax. Rev. Stat. § 3228. In this case the time thu^ limited had expired, and the act of 1893 was passed for the purpose of setting aside the bar of the then existing statute. The rio-ht to demand the refunding of the money in dispute must depend therefore upon the question whether any tax on a stock dividend had been collected from the company by the Government, and a proportionate amount thereof deducted by the company from the dividend otherwise due the county. No deduction of any tax from the scrip dividend due to the claimant was ever made in terms. It is sought to be inferred from the fact that a prior payment of a tax by the company on its undistributed surplus had thereby diminished that fund by the amount of the tax, and that a stock dividend must be assumed to represent profits not distributed in cash dividends, and that the claimant would have received more stock if the profits had not been diminished by the payment of the tax from which it is said a municipal corporation was exempt under the decision of the Supreme Court in the case of Wisconsin Central Railroad v. United States, above cited. Of course, the payment of the tax diminished the profits of the company by just that amount. But, at the time when it was paid, the full amount thereof was due the Government from the company itself, and not one penny could properly have been deducted from the amount of the tax by reason of the fact that a municipal corporation owned a certain amount of the stock of the company. All taxes which were levied on the property of the company were payable in their full amount by the company, and not a dollar could be legally deducted from such tax on account of the character of any owners of its stock. Consequently, when a stock dividend is declared, the fact that the directors might have chosen to declare a larger one if it had not been for the payment of the taxes the company had made on its own property, is entirely immaterial, bo is the fact, if it be a fact, that the total stock dividend was reduced by the amount which the company had theretofore paid as a tax upon its undistributed surplus. There is no finding of the court below which in terms shows that the tax in question here was ever paid on a “ stock ” or 260 OCTOBER TERM, 1897. Opinion of the Court. « scrip ” dividend. All that appears is that a stock dividend of forty per cent on its capital was declared by the railroad company by a resolution adopted on the 16th of November, 1867, which provided that the stock should be issued on February 10, 1868. The court below did find that prior to the passage of the act of February 25, 1893, certain proceedings had theretofore taken place in the Treasury Department relative to the same taxes paid by the same railroad company. (The court in this finding referred to the proceedings in regard to the claim made by the city of Louisville for a return of taxes, under the circumstances detailed in that case, just decided, ante, p. 249, and which are therein set forth.) The court then set forth in this case the finding made in the Louisville case, and in that case, after speaking of the fact that cash dividends had been declared upon the stock of the railroad company, and that there existed a large amount of undistributed surplus in the treasury of the railroad company, the finding continued : “ These cash dividends and the undistributed surplus which was converted into stock or scrip dividends were held by the officers of the Government to be subject to taxation, and taxes were assessed and collected according to the terms of the statute in force at the time of the respective collections.” Taking all the facts as found by the court below, it appears that the only tax paid was paid on the undistributed surplus of the company while it remained such surplus in its hands and while it was a portion of its own property, as much so as anything else owned by it, and that thereafter the company declared a stock dividend of forty per cent upon its old capital. By the provisions of the internal revenue act of 1864, section 122, a stock dividend was subject to a tax of five per cent. So far as material the section provides: “ That any railroad . . . that may have declared any dividend in scrip, or money due or payable to its stockholders, as part of the earnings, profits, income or gains of such company, an all profits of such company carried to the account of any fun , LOGAN COUNTY v. UNITED STATES. 261 Opinion of the Court. or used for construction, shall be subject to and pay a duty of five per centum on the amount of all such interest, or coupons, dividends or profits, whenever the same shall be payable; and said companies are hereby authorized to deduct and withhold from all payments, on account of any interest, or coupons and dividends due and payable as aforesaid, the duty of five per centum,” etc. Under this plain provision of the statute it is perfectly clear that the stock dividend in question was a proper subject^ of taxation. But, as already mentioned, there is no finding that any such tax has been paid, and, of course, none that any deduction on its account was ever made from any dividend due the county. On the contrary, from the findings that have been made, it appears that the only tax which has been paid was paid by the railroad company upon its undistributed surplus at a time when such fund was its own absolute property. That fact, taken in connection with the declaration of the dividend of forty per cent upon the amount of the capital of the railroad company, does not show a payment of the tax on the stock dividend declared under the resolution mentioned. It is plain that this surplus fund, which, at the time it was taxed, belonged to the company, was not distributed to the stockholders, nor was it converted into stock by reason of the stock dividend. If it had been a cash dividend sufficiently large in amount to cover the surplus, then the payment of the dividend would have affected the distribution of the fund. But no distribution could take place by any stock dividend. Such a dividend distributed nothing but stock, which made the stockholder neither richer nor poorer than he was before it was issued. Although the court finds that the undistributed surplus of the railroad company was held by the officers of the Government to be subject to taxation, and taxes were assessed and collected according to the terms of the statute in force at the time of the respective collections, yet such fact does not advance us a step in the direction of showing that any duties were paid on the stock dividend. The tax or duties had been 262 OCTOBER TERM, 1897. Opinion of the Court. paid by the company on a fund which then belonged to it Unless payment of the tax on this undistributed surplus was in substance a payment of the five per cent tax on the stock dividend, then there is no finding that any such payment was ever made. That payment cannot be so regarded because the tax on the undistributed surplus was a tax upon the property of the company and was paid as such by the company, and if the amount thereof were deducted by the company from its subsequent stock dividend, that would be an act of the company, and would not render the prior payment of the tax on the undistributed surplus improper even with regard to Logan County. Otherwise all payments of taxes made by a company upon its own property would be subject to a deduction proportioned to the amount of its stock held by States or other corporations of a municipal character. The adoption of the resolution for a stock dividend, together with the issue of the stock, could have absolutely no effect upon the undistributed surplus fund, so far as any distribution thereof was concerned. The shareholder got no more interest in or right to that fund than he had before, and the prior payment of the tax upon it did not thereby decrease the amount of the forty per cent dividend upon the old capital by a penny. And yet it is only upon the payment of the tax which the company made on its property, in the shape of its undistributed surplus, that the claimants can by this record found their claim to recover their proportion of such tax. If allowed, then the claimant could, upon the same reasoning, recover its proportion of every tax paid by the company upon any other of its property, unless the statute of limitations applied. If the company in fact reduced its stock dividend by the amount of the tax which it had previously paid on the surplus fund belonging to it, such fact gives no support to the claim of the county to recover from the Government an amount of a perfectly legal tax. And as before stated, the proof really is that there was no other payment of a tax than one upon the surplus as the property of the company. An effort is made to show that this payment of a duty or tax on the undistributed fund might be treated as a payment LOGAN COUNTY v. UNITED STATES. 263 Opinion of the Court. of such duty or tax on the stock dividend, under the proviso contained in section 121 of the statute of 1864, which reads: «Prowled, That when any dividend is made which includes any part of the surplus or contingent fund of any . . . railroad company, which has been assessed and the duty paid thereon, the amount of duty so paid on that portion of the surplus or contingent fund may be deducted from the duty on such dividend.” It is perfectly apparent that this proviso includes only cash dividends. It is a dividend which is to include for distribution any part of the surplus or contingent fund of a railroad or other company. How can a stock dividend distribute a fund ? As already remarked, a stock dividend distributes nothing but stock. Hence, there is no sense in applying the statute to a case where no distribution of a fund is made and where the fact of a double payment on the fund cannot arise. The proviso clearly refers to a case where a surplus has already paid duty and where subsequently to that time it is distributed to the shareholders. Under such circumstances that portion of the dividend which has thus once paid its duty of five per cent is not to be taxed again when distributed to the shareholders. But so long as there is no distribution, the tax paid on the surplus as surplus and which belonged to the corporation when the tax was paid, is not to be credited on or deducted from a subsequent tax upon a stock dividend which does not distribute the surplus nor in any manner change its ownership. We agree, therefore, with the opinion of the court below, and we hold that where a railroad company pays a tax on its undistributed surplus under the act of 1864, it is thereby paying a tax upon its own property, and that such payment cannot be regarded as a payment of the tax upon a stock dividend thereafter declared by the railroad company. The judgment of the Court of Claims should, therefore, be Affirmed. 264 OCTOBER TERM, 1897. Statement of the Case. THOMAS v. GAY. GAY v. THOMAS. APPEALS FROM THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA. Nos. 287, 489. Argued and submitted October 21, 22,1897. —Decided February 21, 1898. The act of the legislature of the Territory of Oklahoma of March 5,1895, c. 43, which provided that “when any cattle are kept or grazed or any other personal property is situated in any unorganized country, district or reservation of this Territory, such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes,” was a legitimate exercise of the Territory’s power of taxation, and, when enforced in the taxation of cattle belonging to persons not resident in the Territory grazing upon Indian reservations therein, does not violate the Constitution of the United States. The Supreme Court of the Territory in this case sustained the authority of the board of equalization to increase the assessment or valuation, and in a subsequent case decided the other way. In view of the fact that the judgment in this case is reversed, and the case remanded for further proceedings, this court declines to pass upon the question. These are cross-appeals from the Supreme Court of the Territory of Oklahoma. The facts, as stated in the opinion of the court below, were as follows: The appellants are non-residents of the Territory of Oklahoma and owners of large herds of cattle that were kept and grazed, during a portion of the year 1895, in parts of the Osage Indian reservation in this Territory. The appellees are the board of county commissioners, treasurer and sheriff of Kay County, Oklahoma Territory. On the third Monday in February, 1894, the Supreme Court of the Territory of Oklahoma, by an order entered on the journals of said court, attached to said county of Kay, for judicial purposes, all the Kaw or Kansas Indian reservation and all of the Osage Indian reservation north of the township line dividing townships 25 and 26 north. All of said reservations so attached to said Kay County for judicial purposes by such THOMAS v. GAY. 265 Statement of the Case. order are without the boundaries of said Kay County as established by the governor and are not within the boundaries of any organized county of this Territory. Said territory so attached to said county of Kay for judicial purposes is comprised wholly of lands owned and occupied by Indian tribes, and consists principally of wild, unimproved and unallotted lands used for grazing purposes; that plaintiffs in error during the year 1895 and during the month of April of said year drove, transported and shipped to the ranges and pastures in that part of said Osage Indian reservation attached to said Kay County for judicial purposes, as aforesaid, large herds and numbers of cattle, which were taken to said reservation in pursuance and by virtue and authority of certain leases to plaintiffs in error for grazing purposes made by the Osage tribal government under the supervision of the agent in charge of said tribe and upon the ratification and approval of the Commissioner of Indian Affairs and of the Secretary of the Interior, and said cattle of said plaintiffs in error were on the first day of May kept and grazed on that part of said Indian reservation attached to said Kay County for judicial purposes, as aforesaid. By an act approved March 5, 1895, c. 43, the legislative assembly of the Territory of Oklahoma amended section 13, article 2, chapter 70, of the Oklahoma Statutes relating to revenue, so that the same reads as follows: “ That when any cattle are kept or grazed or any other personal property is situated in any unorganized country, district or reservation of this Territory, such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes,” and authorized the board of county commissioners of the organized county or counties to which such unorganized country, district or reservation is attached to appoint a special assessor each year, whose duty it should be to assess such property, and conferred upon such special assessor all the powers and required him to perform all the duties of a township assessor. The assessor so provided for was required to begin and perform his duties between the first day of April and the 25th day of May of each year and 266 OCTOBER TERM, 1897. Statèment of the Case. to complete his duties and return his tax lists on or before June 1, and the property therein authorized to be assessed, it was provided, should be valued as of May 1, each year. In pursuance of the provisions of said act the county commissioners of said Kay County did duly appoint a special assessor for the year 1895 to assess such cattle as were kept and grazed and any other personal property situated in the unorganized country and parts of Indian reservations attached to said Kay County for judicial purposes, and said special assessor did, by virtue of said appointment, assess all the personal property in the territory so attached to the county of Kay for judicial purposes, including all of the cattle of the said appellants kept and grazed in said reservation on the first day of May, 1895. The said special assessor assessed the property of these appellants so located on said territory attached to said county of Kay for judicial purposes, as aforesaid, and returned the same upon an assessment roll at the total valuation of $760,469; that thereafter the said sum was, by the clerk of said county, carried into the aggregate assessment for said county, and by him certified to the auditor of the Territory ; that the Territorial board of equalization in acting upon the various assessments of the various counties as certified to said board raised the aggregate valuation of the property returned for taxation upon the tax rolls of said county of Kay thirty-five per cent, and the county clerk for said county carried out the raised valuation so certified to him by said Territorial board of equalization against the property of these appellants and made the aggregate valuation of such property $1,026,634. Thereafter the Territorial board of equalization levied and duly certified to the county clerk of the county of Kay tax levies for Territorial purposes for the year 1895 as follows: General revenue, three mills on the dollar; university fund, one half mill on the dollar; normal school fund, one half mill on the dollar; bond interest fund, one half mill on the dollar; board of education fund, one half mill on the dollar. The board of county commissioners for the county of Kay made the following levies for the year 1895: for salaries, five • THOMAS v. GAY. 267 Statement of the Case. mills on the dollar ; for contingent expenses, three mills on the dollar; for sinking fund, one and one half mills on the dollar; for court expenses, two and one half mills on the dollar ; for county supplies, three mills on the dollar ; for road and bridge fund, two mills on the dollar ; for poor fund of said county, one mill on the dollar ; for county school fund of said county, one mill on the dollar. The county clerk of said county of Kay carried the valuation of the property of these plaintiffs in error upon the tax rolls of said county, and against the same extended the levies as a foresaid, and charged against the property of these plaintiffs in error in the aggregate the sum of $26,174.16. Before these taxes became delinquent, plaintiffs in error began to remove or attempted to remove their respective property from the territory attached to Kay County for judicial purposes and beyond the limits of Oklahoma Territory. The treasurer of said Kay County issued tax warrants for the several amounts of taxes levied against thé property of each of said plaintiffs in error, and delivered the same to the sheriff of said county for execution ; said sheriff seized certain property of each of appellants by virtue of such tax warrants. The appellants filed their several petitions in the District Court of Kay County, and, on application, obtained injunctions restraining the appellees from making any further attempt to collect such taxes. Afterwards, on motion, the several actions were consolidated into one. To the petition filed in such consolidated action the defendants in error filed a general demurrer. At the hearing, the District Court sustained the demurrer in part and overruled it in part, holding that all of the levies made for Territorial purposes and the county xevy for court expenses were valid, and as to those levies the injunction was dissolved, and as to all of the other county levies such injunctions were made perpetual. From that part of the order and judgment of the court, dissolving the injunction as to the Territorial taxes and the one county fund levy, plaintiffs appealed. From that part perpetuating the injunction as to all of the county levies, except that for court expenses, the defendants appealed and filed their cross-petitions 268 OCTOBER TERM, 1897. Opinion of the Court. in error, and the case was taken to the Supreme Court of the Territory. In that court the judgment of the District Court was affirmed. Three of the four judges, who sat in the case, agreed in holding that the taxes levied for territorial and court expense funds were valid; two were of opinion that the balance of the taxes were unauthorized; one was of opinion that all the taxes were validly levied, and the fourth judge dissented in toto. From that judgment of the Supreme Court of the Territory both parties appealed to this court. Mr. Henry E. Asp and Mr. John W. Shartel for Gay. Mr. J. F. King for Thomas and others, county commissioners, submitted on their brief. Mr. Jeremiah M. Wilson and Mr. O. F. Goddard filed a brief on behalf of other owners of cattle grazing on the reservations. Mr. II. S. Cunningham filed a brief on behalf of the Territory. Me. Justice Shieas, after stating the case, delivered the opinion of the court. It is claimed that the legislative assembly of the Territory of Oklahoma was without power to enact the law of March 5, 1895, providing for the taxing of cattle grazing upon the Indian reservations under leases granted by the Indians, because, both before and since the creation of said Territory, exclusive jurisdiction over said Indians and their lands, and over all matters in any way affecting them, or in which they are interested, is in the United States. It is, indeed, true that the lands in question, constituting the reservations of the Osage and Kansas Indians, are portions of lands previously granted by patent of the United States, in pursuance of the treaty of May 6,1828, 7 Stat. 311, and of the treaty of December 29, 1835, 7 Stat. 478, to the Cherokee THOMAS v. GAY. 269 Opinion of the Court. Nation of Indians, and that it was provided, in those treaties, that the lands so granted should not, without the consent of the Indians, at any future time be “ included within the territorial limits or jurisdiction of any State or Territory.” In the subsequent treaty with the Cherokees of July 19, 1866, 14 Stat. 799, 804, it was stipulated that the United States might “settle friendly Indians in any part of the Cherokee country west of the 96th degree, to be taken in a compact form, in quantity not exceeding 160 acres for each member of each of said tribes thus to be settled, the boundaries of each of said districts to be distinctly marked, and the land conveyed in fee simple to each of said tribes, . . said land to be paid for to the Cherokee Nation, at such price as may be agreed upon between the said parties in interest, subject to the approval of the President.” On the 26th of June, 1866, a treaty was made with the Osage Indians, 14 Stat. 687, wherein it was provided that a large part of the reservation then occupied by that tribe in Kansas was sold outright to the Government for a, certain sum of money, and by article 16 of said treaty it was provided that “If said Indians should agree to remove from the State of Kansas and settle on land to be provided for them by the United States in the Indian Territory, on such terms as may be agreed upon between the United States and the Indian tribes now residing in said Territory, or any of them, then the diminished reservation shall be disposed of by the United States in the same manner and for the same purposes as hereinbefore provided in relation to said trust lands, except that fifty per cent of the proceeds of the sale of said diminished reserve may be used by the United States in the purchase of lands for a suitable home for said Indians in said, Indian Territory.” * On July 15, 1870, 16 Stat. 335, Congress passed an act, providing, in substance, that whenever the Osages should agree thereto, in such manner as the President should prescribe, said Indians should be removed from their said diminished reservation in the State of Kansas to the lands to be provided or them in the Indian Territory, “to consist of a tract of land 270 OCTOBER TERM, 1897. Opinion of the Court. in compact form, equal in quantity to 160 acres for each member of tribe, to be paid for out of the proceeds of the sales of their lands in the State of Kansas; ” and subsequently the Osages were established upon their present reservation, and the Cherokees were paid therefor the sum of $1,650,600; and by an act approved June 5, 1872, 17 Stat. 228, Congress confirmed this reservation in said Cherokee country. The history of the transfer of the so-called Kaw or Kansas Indians from their reservation in the State of Kansas to lands bought from the Cherokee Nation, constituting their present reservation, was similar to that of the Osages, and calls for no special narration. In 1883, sufficient money having been realized from the sales to pay for said lands, a deed was duly executed by the Cherokees conveying all their rights and title in and to the United States for the use of the said Osage and Kansas Indians, which deed is recorded in volume 6 of the Indian Deeds in the office of the Commissioner of Indian Affairs in the Department of the Interior. It is alleged that, by no subsequent treaty, have either the Cherokee or the Osage or Kansas Indians consented that the lands here in question should be included within the limits or jurisdiction of the Territory of Oklahoma; and it is accordingly now contended that under the provision contained in the Cherokee treaties, the lands therein designated should never be embraced within the limits of a Territory or State without the consent of said Indians, the exemption or right thereby created runs with the land, subject to which said lands, or any part thereof, could be conveyed to other Indians, and is not a right belonging solely to the Cherokees, which ceased to exist when the ownership of the Cherokees therein terminated. Whether, without express stipulation to that effect, the right granted by treaty to the Cherokee Nation, to be exempt, as to their lands, from inclusion within the limits of any Territory or State, passed with the grant of a portion of such lands to the Osage and Kansas Indians, we need not consider, because, even if such were the law, it is conceded that the United States have, by the act of May 2, 1890, 26 Stat. 81, THOMAS v. GAY. 271 Opinion of the Court. creating the Territory of Oklahoma, included these Osage and Kansas Indian lands within the geographical limits of said Territory. It is well settled that an act of Congress may supersede a prior treaty, and that any questions that may arise are beyond the sphere of judicial cognizance, and must be met by the political department of the Government. “ It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty. Foster v. Neilson, 2 Pet. 253, 314; Taylor v. Morton, 2 Curtis, 454. “ In the cases referred to, these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful observance, cannot be more obligatory. . . . In the case under consideration the act of Congress must prevail as if the treaty wrere not an element to be considered.” The Cherokee Tobacco, 11 Wall. 616. That was a case where an act of Congress extended the revenue laws as respected tobacco over the Indian territories, regardless of provisions in prior treaties that exempted tobacco raised by Indians on their reservations. The grant of legislative power to the Territory of Oklahoma, contained in the sixth section of the organic act, was as follows: “ The legislative power of the Territory shall extend to all rightful subjects of legislation, not inconsistent with the Constitution and laws of the United States, but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed on the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents, nor shall 272 OCTOBER TERM, 1897. Opinion of the Court. any law be passed impairing the right to private property, nor shall any unequal discrimination be made in taxing different kinds of property, but all property subject to taxation shall be taxed in proportion to its value.” With the Indian reservations brought, by valid legislation, within the limits of the Territory, and with the broad grant of legislative power contained in the section just quoted, we are next to consider objections urged to the validity of the act of the territorial assembly, approved March 5, 1895, wherein it provides that “ when any cattle are kept or grazed, or any other personal property is situated in any unorganized country, district or reservation of this Territory, such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes.” Our attention is called to the following provision contained in the first section of the organic act: “ Nothing in this act shall be construed to impair any right now pertaining to any Indians or Indian tribe in said Territory under the laws, agreements and treaties of the United States, or to impair the rights of persons or property pertaining to said Indians, or to affect the authority of the United States to make any regulation or to make any law respecting said Indians, their lands, property or other rights, which it would have been competent to make or enact if this act had not been passed.” And also to section 3 of the act of February 28,1891, c. 383, 26 Stat. 794, as follows : “ Where lands are occupied by Indians, who have bought and paid for the same, and which lands are not needed for farming or agricultural purposes, and are not desired for individual allotments, the same may be leased by authority of the council, speaking for such Indians, for a period not to exceed five years for grazing or ten years for mining purposes, in such quantities and upon such terms and conditions as the agent in charge of such reservation may recommend, subject to the approval of the Secretary of the Interior.” And the contention is that, irrespective of the question whether said lands are, by the treaties, excluded from the THOMAS v. GAY. 273 Opinion of the Court. limits and jurisdiction of the Territory of Oklahoma, the taxation of cattle located for grazing purposes upon the reservations, under leases duly authorized by act of Congress, is a violation of the rights of the Indians and an invasion of the jurisdiction and control of the United States over them and their lands. As to that portion of the argument which claims that, even if the Indians were not interested in any way in the property taxed, the territorial authorities would have no right to tax the property of others than Indians located upon these reservations, it is sufficient to cite the cases of Utah & Northern Railway v. Fisher, 116 U. S. 28, and Maricopa & Phoenix Railroad v. Arizona, 156 U. S. 347, in which it was held that the property of railway companies traversing Indian reservations are subject to taxation by the States and Territories in which such reservations are located. But it is urged that the Indians are directly and vitally interested in the property sought to be taxed, and that their rights of property and person are seriously affected by the legislation complained of; that the money contracted to be paid for the privilege of grazing is paid to the Indians as a tribe, and is used and expended by them for their own purposes, and that if, by reason of this taxation, the conditions existing at the time the leases were executed were changed, or could be changed by the legislature of Oklahoma at its pleasure, the value of the lands for such purposes would fluctuate or be destroyed altogether according to such conditions. But it is obvious that a tax put upon the cattle of the lessees is too remote and indirect to be deemed a tax upon the lands or privileges of the Indians. A similar contention was urged in the case of Erie Railroad v. Pennsylvania, 158 U. S. 431. There the State of Pennsylvania had imposed a tax upon a railroad, situated within the borders of that State, but leased to another railroad company engaged in carrying on interstate commerce, and this tax was measured by a reference to the amount of the tolls received by the lessor company from the lessee company. It was claimed that the imposition of a tax on tolls might lead to increasing them in an effort to throw VOL. CLXIX—18 274 OCTOBER TERM, 1897. Opinion of the Court. their burthen on the carrying company, and thus, in effect, become a tax or charge upon interstate commerce. But this court held that such a tax upon tolls was too indirect and remote to be regarded as a tax or burthen on interstate commerce. A similar view was taken in the case of Henderson Bridge Co. v. Kentucky, 166 U. S. 150, where a tax imposed by the State of Kentucky on the intangible property of a company which owned and maintained a bridge over a river between two States was contended to be objectionable as constituting a burthen upon interstate commerce, but it was held that the fact that the tax in question was to some extent affected by the amount of the tolls received, and therefore might be supposed to increase the rate of tolls and thus be a burthen on interstate commerce, was too remote and incidental to make it a tax on the business transacted. Adams Express Co. v. Ohio State Auditor, 166 U. S. 185. The suggestion that such a tax on the cattle constitutes a tax on the lands within the reasoning in the case of PoUock v. Farmers' Loan and Trust Co., 157 U. S. 429, is purely fanciful. The holding there was that a tax on rents derived from lands was substantially a tax on the lands. To make the present case a similar one the tax should have been levied on the rents received by the Indians, and not on the cattle belonging to third parties. It is further contended that this tax law of the Territory of Oklahoma, in so far as it affects the Indian reservations, is in conflict with the constitutional power of Congress to regulate commerce with the Indian tribes. It is said to interfere with, or impose a servitude upon, a lawful commercial intercourse with the Indians, over which Congress has absolute control, and in the exercise of which control it has enacted the statute authorizing the leasing by the Indians of their unoccupied lands for grazing purposes. The unlimited power of Congress to deal with the Indians, their property and commercial transactions, so long as they keep up their tribal organizations, may be conceded; but it is not perceived that local taxation, by a State or Territory, of property of others than Indians would be an interference with THOMAS v. GAY. 275 Opinion of the Court. Congressional power. It was decided in Utah & Northern Railway v. Fisher, 116 U. S. 28, that the lands and railroad of a railway company within the limits of the Fort Hill Indian reservation in the Territory of Idaho was lawfully subject to territorial taxation, which might be enforced within the exterior boundaries of the reservation by proper process. The question was similarly decided in Maricopa ci? Phoenix Bail-road v. Arizona Territory, 156 U. S. 347. The taxes in question here were not imposed on the business of grazing, or on the rents received by the Indians, but on the cattle as property of the lessees, and, as we have heretofore said that as such a tax is too remote and indirect to be deemed a tax or burthen on interstate commerce, so is it too remote and indirect to be regarded as an interference with the legislative power of Congress. These views sufficiently dispose of the objections urged against the power of the legislative assembly of Oklahoma to pass laws taxing property within the limits of the Indian reservations and belonging to persons not Indians. We must now consider the objections made to the mode in which that power was exercised in the act of March 5, 1895. The most fundamental of these objections is found in the assertion that, so far as non-resident owners of cattle grazing within the Indian reservations are concerned, it is taxation without representation, and that such persons derive no benefit from the expenditure of the moneys accruing from the tax. The organic act, as we have already seen, extends the exterior boundary of the Territory around these Indian reservations. It also provided for the division of the Territory into council and representative districts, and for the election of a legislative assembly and of a delegate to Congress. The Indian reservations were not included within any of the council or representative districts. The act provided that there should be seven counties, and fixed the county seats, and under the authority of the act the governor established the boundaries of these counties. The legislature was authorized to change the boundaries of the original counties, but was not given author-ity to include these Indian reservations, or any lands not then 276 OCTOBER TERM, 1897. Opinion of the Court. open to settlement in any of the counties. By section nine it was provided that the Territory should be divided into three judicial districts ; that the Supreme Court should define such judicial districts; and that the territory not embraced in organized counties should be attached, for judicial purposes, to such organized county or counties as the Supreme Court should determine. In May, 1890, the Supreme Court made an order attaching the several Indian reservations to certain organized counties for judicial purposes, and by an order on February 3,1894, attached the reservations in question in this case to Kay County for judicial purposes. As already stated, by the act of March 5, 1895, it was provided that when any cattle are kept or grazed or any other personal property is situated in any unorganized country, district or reservation, such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes ; and provision was made for the appointment of a special assessor for such unorganized country, district or reservation. Under this condition of affairs it is contended that the taxing power cannot be lawfully exerted as respects property within these reservations. It is said that those to be affected by the tax have no voice in the election of the legislature to make the laws by which they are to be governed; that they have no school facilities for their children; that they cannot organize towns, so as to have the benefit of the police and sanitary laws of the Territory; that the officers of Kay County have no authority to expend any portion of the moneys raised by this taxation in improving roads within the Indian reservation; that they cannot participate in the election of the territorial delegate; and that they are not benefited by the taxes appropriated for salary fund, contingent expense fund, sinking fund, road and bridge fund, poor fund, etc. Undoubtedly there are general principles, familiar to our systems of state and Federal government, that the people who pay taxes imposed by laws are entitled to have a voice in the election of those who pass the laws, and that taxes must be assessed and collected for public purposes, and that the duty THOMAS v. GAY. 277 Opinion of the Court. or obligation to pay taxes by the individual is founded in his participation in the benefits arising from their expenditure. But these principles, as practically administered, do not mean that no person, man, woman or child, resident or non-resident, shall be taxed, unless he was represented by some one for whom he had actually voted, nor do they mean that no man’s property can be taxed unless some benefit to him personally can be pointed out. Thus it has been held that personal allegiance has no necessary connection with the right of taxation ; an alien may be taxed as well as a citizen. Mager v. Grima, 8 How. 490; 'Witherspoon v. Duncan, 4 Wall. 210. So, likewise, it is settled law that the property, both real and personal, of non-residents may be lawfully subjected to the tax laws of the State in which they are situated. The specific objection made to the validity of these taxes as imposed on personal property located in unorganized countries or in the reservations does not seem to us to be well founded. We have already cited the cases of Utah <& Northern Railway Company v. Fisher, 116 U. S. 28, and Maricopa & Phoenix Railroad v. Arizona, 156 U. S. 347, wherein territorial tax laws were held to have a valid operation over property lying within Indian reservations. Union Pac. Railroad v. Peniston, 18 Wall. 5, 37, was a case where unorganized country was attached by law to an organized county for judicial and revenue purposes, and the law was sustained, as appears in the decision delivered by Mr. Justice Strong, as follows: “ It remains only to notice one other position taken by the complainants. It is that if the act of the State under which the tax was laid be constitutional in its application to their property within Lincoln County, the property outside of Lincoln County is not lawfully taxable by the authorities of that county under the laws of the State. To this we are unable to give our assent. By the statutes of Nebraska the unorganized territory west of Lincoln County, and the unorganized country of Cheyenne, are attached to the county of Lincoln for judicial and revenue purposes. The authorities of that county, therefore, were the proper authorities to levy the tax upon the property thus placed under their charge for revenue purposes.” 278 OCTOBER TERM, 1897. Opinion of the Court. In Llano Cattle Co. v. Faught, 5 S. W. Rep. 494 (Texas), the case was that an unorganized country was attached by law to the organized county of Scurry for judicial purposes. The officers of Scurry County assessed and levied county taxes upon the cattle of the plaintiff, a foreign corporation, kept in the unorganized country, and it was held that the unorganized country, being in effect a part of the county to which it was so attached, the collection of taxes on such personalty of a nonresident may be enforced by the tax collector of the latter county. We are referred to similar decisions in Kansas: Phil-pin v. McCarty, 24 Kansas, 393 ; in Ohio: Kemper v. McClelland, 19 Ohio, 308; in Iowa: Hilliard v. Griffin, 33 N. W. Rep. 156; in Michigan : Comins v. Township of Harrisville, 45 Michigan, 442. It is further contended that, while the taxes assessed for territorial and court expense funds may be valid, yet that the balance of the taxes, levied for county purposes and expended within the geographical limits of Kay County, are unauthorized, for the reason that the people on these reservations are not interested in such taxes, and receive no benefit from their expenditure. But, as it seems to us, it cannot be maintained that those plaintiffs whose cattle are within the protection of the laws of Oklahoma receive no benefit from the expenditures in Kay County. Certainly they have some advantage in the improvement of the roads within that county, when they journey to and from the towns and settlements in the organized county. They are interested in the prevalence of law and order in the communities adjacent to their property, and in the provision made for the care of the poor and insane. It is to be presumed that they have a right to send their children to the schools in the organized county. The cases, both state and Federal, are numerous in which it has been held that taxes, otherwise lawful, are not invalidated by the allegation, or even the fact, that the resulting benefits are unequally shared. In Kelly v. Pittsburg, 104 IT. S. 78, the complaint was that certain water, street, gas, school and other taxes were unlawfully assessed against the property of the plaintiff, which, THOMAS v. GAY. 279 Opinion of the Court. though lying within city limits, were not benefited by such taxes; but this court, affirming the Supreme Court of Pennsylvania, said: “ We are unable to see that the taxes levied on this property were not for a public use. Taxes for schools, for the support of the poor, for protection against fire, and for waterworks are the specific taxes found in the list complained of. We think it will not be denied by any one that these are public purposes in which the whole community have an interest, and for which, by common consent, property owners everywhere in this country are taxed. There are items styled city tax and city buildings which, in the absence of any explanation, we must suppose to be for the good government of the city, and for the construction of such buildings as are necessary for municipal purposes. ... It may be true that the plaintiff does not receive the same amount of benefit from some or any of these taxes as do citizens living in the heart of the city. It is probably true, from the evidence found in this record, that his tax bears a very unjust relation to the benefits received as compared with its amount. But who can adjust with precise accuracy the amount which each individual in an organized civil community shall contribute to sustain it, or can insure in this respect absolute equality of burthens and fairness in their distribution among those who must bear them ? “We cannot say judicially that the plaintiff received no benefit from the city organization. These streets, if they do not penetrate his farm, lead to it. The waterworks will probably reach him some day, and may be near enough to him ®ow to serve him on some occasion. The schools may receive his children, and in this regard he can be in no worse condition than those living in the city who have no children, and yet who pay for the support of the schools. Every man in a county, a town, a city or a State is deeply interested in the education of the children of the community, because his peace and quiet, his happiness and prosperity, are largely dependent upon the intelligence and moral training which it is the object of public schools to supply to the children of his neighbors and associates, if he has none himself.” 280 OCTOBER TERM, 1897. Opinion of the Court. It is no objection to a tax that the party required to pay it derives no benefit from the particular burthen ; e.g. a tax for school purposes levied upon a manufacturing corporation. But, in truth, benefits always flow from the appropriation of public moneys to such purposes, which corporations in common with national persons receive in the additional security to their property and profits. Amesbury Nail Factory Co. v. Weed, 17 Mass. 53. In Cooley on Taxation, 16, the result of a wide examination of the cases is thus stated: “ If it were practicable to do so, the taxes levied by any government ought to be apportioned among the people according to the benefit which each receives from the protection the Government affords him ; but this is manifestly impossible. The value of life and liberty, and of the social and family rights and privileges cannot be measured by any pecuniary standard; and by the general consent of civilized nations, income or the sources of income are almost universally made the basis upon which the ordinary taxes are estimated. This is upon the assumption, never wholly true in point of fact, but sufficiently near the truth for the practical operations of Government, that the benefit received from the Government is in proportion to the property held, or the revenue enjoyed under its protection ; and though this can never be arrived at with accuracy, through the operation of any general rule, and would not be wholly just if it could be, experience has given us no better standard, and it is applied in a great variety of forms, and with more or less approximation to justice and equality. But, as before stated, other considerations are always admisible ; what is aimed at is, not taxes strictly just, but such taxes as will best subserve the general welfare of the political society.” The fact that the taxes in question are levied on personal property only and thus exempt real property is urged as an objection to the validity of the act. It is claimed that such an exemption operates as an unjust discrimination. As the owners of the cattle taxed own no real estate within the Indian reservation, this objection, if sound, would render THOMAS v. GAY. 281 Opinion of the Court. it impossible to tax the cattle at all. But it is the usual course in tax laws to treat personal property as one class and real estate as another, and it has never been supposed that such classification created an illegal discrimination, because there might be some persons who owned only personal property, and others who owned property of both classes. Again, it is complained that this law violates the principle of uniformity, and operates as an unjust discrimination, because it provides for an assessment of cattle, kept and grazed on the Indian reservations, at a different time from that provided for the assessment of personal property, including cattle, in the organized country. It is not unusual for tax laws to authorize the assessment of different classes of property at different dates, and even of the same classes of property in different localities at different dates. Such matters of regulation must be supposed to be within the power of the State or Territory, and to have their reasons in special facts known to the legislature. We are informed that the revenue laws of Oklahoma provide that real estate shall be valued for taxation on the first day of January, and personal property in the organized counties on the first day of February of each year, and the personal property upon the reservations on May 1. The gravamen of the complaint is that cattle are fatter and more valuable on May 1 than on February 1, and hence there is an inequality in the assessments. On the other hand, it is claimed that if the cattle on the reservations were to be valued for taxation in February, the larger part would escape taxation, as they are not driven to the reservations till April. A similar objection was urged against the validity of a tax law of the State of Wisconsin, wherein April 1 was fixed as the date for assessing saw logs belonging to non-residents and May 1 for assessing saw logs of residents. The court said : “ It is claimed that this law violates the principle of uniformity in providing for an assessment of the logs of a nonresident at a different time than that provided in the case of residents; that for the same reason it discriminates unjustly against non-residents. But I am of opinion that the case 282 OCTOBER TERM, 1897, Opinion of the Court. does not come within either of these principles. . . . The legislature was aware that the logs of non-residents as well as resident owners were liable to be floated out of the State in the month of April.” Nelson Lumber Co. v. Loraine (Ct. Ct. of U. S. for Dist. of Wisconsin), 22 Fed. Rep. 54. In Missouri a statute was held valid which provided that real property should be assessed every two years in all counties outside of St. Louis, and that all property in the city of St. Louis should be assessed every year, for state and municipal taxes, and this although in the particular case it was shown that this difference in the time of the assessments made a considerable difference in the amount of the taxes. State v. New Lindell Hotel Co., 9 Mo. App. 450. A law providing different times for assessments for state taxes in the State of New York was held to be legal. People v. Commissioners of Taxes, 91 N. Y. 593. Several other provisions of the act in question are pointed to as creating discriminations against taxpayers whose property is in the unorganized district and reservations, such as these; that city and township assessors are required to be residents and qualified voters in the township or city where elected, but there is no such requirement imposed on the special assessor appointed by the board of county commissioners to assess the personal property in the reservations and unorganized districts; that the several township and city assessors are required to meet at the county seat and agree upon an equal cash basis of valuation of all property that they may be called upon to assess, but in this matter the special assessors do not participate; that the township assessor, clerk and treasurer are a township board of equalization, and the mayor, city clerk and city assessor are a city board of equalization, but that, in the case of the unorganized districts and reservations, the board of county commissioners act as a board of equalization, etc. Without undertaking to enumerate all the instances in which there is some difference of procedure in respect to property assessed within the organized counties and property assessed in the unorganized districts and reservations, or to THOMAS v. GAY. 283 Opinion of the Court. consider minutely the several objections that are urged to such differences, we do not perceive that the questions suggested are for the courts. Clearly these are matters of detail within the legislative discretion. It is the lawmaking power which is to determine all questions of discretion or policy in ordering and apportioning taxes; which must make all the necessary rules and regulations, and decide upon the agencies by means of which the taxes shall be collected. When, as may sometimes happen, the legislature transcends its functions and enacts, in the guise of a tax law, a law whereby the property of the citizen is confiscated, or taken for private purposes, the judiciary has the right and duty to interpose. But such a case is not presented by this record. These views dispose of the objections urged against the validity of the act of March 5, 1895, and leave only for consideration error assigned to the action of the territorial board of equalization in adding thirty-five per cent to the assessment or valuation made by the officer or officers to whom the duty to make the assessment is by the statute expressly committed. It is alleged that this order by the board of equalization was unauthorized and void. We learn from the opinion of the Supreme Court of Oklahoma in the present case that this question of the power of the territorial board of equalization to raise the valuation of the properties to be taxed had been, in the previous case of Wallace v. Bullen, decided affirmatively, and that such decision was followed in the present case. We are informed, however, by the brief filed in behalf of the petitioners that subsequently, on September 3,1897, in the case of Gray v. Stiles, 49 Pac. Rep. 1083, the subject was again considered ahd an opposite conclusion reached. It is also asserted in said brief that the question is one of general importance, and that a final decision of it may affect the validity of municipal obligations heretofore issued in the Territory. Such allegations disclose that there are parties not represented before us whose interests are involved in the inquiry. The case was heard in the trial court on a demurrer to the 284 OCTOBER TERM, 1897. Syllabus. petition, and the question of the validity of the action of the board of equalization in raising the assessed values throughout the Territory was put by the Supreme Court, without discussion, on its previous decision in the case of Wallace v. Bullen. Wq are also informed by the briefs that the case just mentioned is now pending before the Supreme Court on an order for a rehearing. Whether the facts pertaining to the action of the board of equalization in this particular were the same in Gray v. Stiles as those in this case, we cannot say from this record. In such circumstances, we think it would be premature for this court to determine the question. As, for the reasons before given, the judgment of the Supreme Court must be reversed, that court will have an opportunity to deal with this question, if it think fit, upon a rehearing. The judgment of the Supreme Court of Oklahoma is accordingly reversed, and the cause is remanded with directions to proceed in conformity with this opinion. BAKER v. GRICE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE NORTHERN DISTRICT OF TEXAS. No. 336. Argued January 26, 1898.—Decided February 21,1898. While Circuit Courts of the United States have jurisdiction, under the circumstances set forth in the statement of the case (below), to issue a writ of habeas corpus, yet those courts ought not to exercise that jurisdiction, by the discharge of a prisoner, unless in cases of peculiar urgency, but should leave the prisoner to be dealt with by the courts of the State; and even after a final determination of the case by those courts should ordinarily leave the prisoner to his remedy by writ of error from this court. Upon the facts appearing in this case no sufficient case was made out or the exercise of the jurisdiction of the Circuit Court by the issue o a BÄKER v. GRICE. 285 Statement of the Case. writ of habeas corpus to take the prisoner out of the custody of the state court. It is the rule of courts, both state and Federal, not to decide constitutional questions until the necessity for such decision arises in the record before . the court. This appeal is from an order of the United States Circuit Court for the Northern District of Texas, made upon a return to a writ of habeas corpus, issued by that court to inquire into the cause for the detention of the petitioner, William Grice, who, it was alleged, was unlawfully restrained of his liberty by and held in the custody of J. W. Baker, the sheriff of McLennan County, Texas. After a hearing, the Circuit Court, on the 22d of February, 1897, discharged the petitioner. 79 Fed. Rep. 627. The petition for the writ was filed on the 9th of December, 1896, and therein the petitioner, among other things, made the following allegations: That he was unlawfully restrained of his liberty by the sheriff of McLennan County, Texas, having been surrendered by his sureties under a recognizance which he had theretofore given; that he was detained by the sheriff under an indictment preferred against him and other citizens of the United States on the 21st of November, 1894. The indictment charged that William Grice, E. T. Hathaway and several others, named in the indictment, unlawfully combined and engaged among themselves and with others, who were unknown to the grand jury, in a conspiracy against trade, and that they had created a trust by a combination of their capital, skill and acts for the purpose of creating and carrying out restrictions in trade. The indictment was based upon an act passed by the legislature of Texas on the 30th of March, 1889, which is generally known and described as the anti-trust act of that State.. When the indictment was presented, the defendants (including the petitioner herein) were arrested and brought before the proper court and entered into a recognizance conditioned for their appearance in court from day to day and term to term to answer the indictment. On the 2d of December, 1895, the case was regularly called, and the defendants, pursuant to the provisions of the code of crim- 286 OCTOBER TERM, 1897. Statement of the Case. inal procedure of the State of Texas, announced a severance and thereupon E. T. Hathaway, one of the defendants named in the indictment, was placed on trial to answer the charges contained therein. Before proceeding to trial on the merits,, he in effect demurred to the indictment on the ground, among others, that the above named act of the State of Texas was a violation of the Federal Constitution, for reasons which he stated. The demurrer was overruled and the trial of the cause was then proceeded with, and on the 12th of December, 1895, a verdict of guilty as charged in the indictment was rendered, and the jury assessed defendant’s punishment at a fine of $50. Hathaway duly took proceedings for the purpose of obtaining a review by the Court of Criminal Appeals of the State of Texas of the various matters raised by the demurrer and in the course of his trial. Under the law of Texas, one who is convicted of a felony, although the punishment imposed is only a fine, is still necessarily subjected to confinement in the jail pending the determination of any appeal which he may take, and under that provision the defendant Hathaway was subjected to confinement in jail pending the determination of his appeal. It was argued in the Court of Criminal Appeals on the 29th day of January, 1896, and was not decided until the 24th day of June, 1896, leaving the defendant Hathaway in the meantime incarcerated in the McLennan County jail. On the last mentioned day the Court of Criminal Appeals decided the case, but did not pass upon the constitutionality of the act under which the indictment was framed, although that question had been raised in the court below and presented to the appellate court on the argument of the appeal. The court decided the appeal upon another ground, which the petitioner herein calls a technical ground of pleading, the court holding that because the indictment presented failed to charge Hathaway with knowingly carrying out as agent the stipulations, purposes, prices, etc., under the alleged conspiracy, the admission of evidence to that effect over the objection of the defendant was unwarranted in law, and the conviction was therefore invalid. The appellate court there- BAKER v. GRICE. 287 Statement of the Case. upon reversed the judgment and remanded the cause for a trial de novo. Since the rendition of this judgment two terms of the criminal court in the proper county have been held, one of which was drawing near its close at the time that the petitioner filed his petition, December 9, 1896, and the petitioner then makes this allegation: that “While this petitioner, together with his co-defendants who have been arrested and placed in recognizance, have stood ready and anxious for trial upon said indictment, yet said case has not even been called by the court for trial, nor has said cause been set for trial, but the same has been permitted to remain upon the docket of said court, subjecting this petitioner and his co-defendants not only to the shame and contumely of an indictment for felony, but denying to him and his co-defendants the right to be heard in his defence in said court as a citizen of the United States, and whereby this petitioner, as well as his co-defendants, are without remedy in the state courts of Texas for the assertion and vindication of their rights under the Constitution of the United States.” It is then shown in the petition that on the 24th of November, 1896, Hathaway, one of his co-de-fendants, procured from the Circuit Court of the United States a writ of habeas corpus, requiring the sheriff of McLennan County, who then had him in custody, to produce the body of said Hathaway, and that the writ was served upon the sheriff, who made return that he held his prisoner under the indictment above mentioned. A hearing before the court was then set for the 7th of December, 1896, and notice thereof was given to the sheriff and prosecuting officers of the county of McLennan, advising them of the proceedings and of the time when the matter would be inquired into. On the 7th of December, the state court dismissed the indictment and prosecution as against Hathaway, leaving the same to stand unimpaired as to the petitioner herein and his co-defendants. This action on the part of the state court, the petitioner charges, was for the purpose of defeating the jurisdiction of the United States court upon the writ of habeas corpus, which had then been issued, 288 OCTOBER TERM, 1897. Statement of the Case. and to thereby prevent that court from passing upon the constitutional rights of said Hathaway. After this discharge by the state court, the sheriff made return, setting up that fact and that he claimed no further right or custody over the relator. The petitioner then avers that the act in question violates the Constitution of the United States for the reasons which he names, and that by reason of the premises “ he is without remedy for the assertion and vindication of his rights as a citizen of the United States under the Constitution thereof; that he has stood under indictment for felony, charged with the violation of said alleged statute of the State of Texas, approved March 30, 1889, for the period of two years without being afforded an opportunity by the state courts of Texas for the assertion of his rights, as aforesaid, as a citizen of the United States. Your petitioner believes, and so avers, that it is the purpose and intent of the state authorities of the State of Texas to prevent, if possible, any appeal by this petitioner to the courts of the United States for the vindication of his rights as aforesaid as a citizen of the United States. In view of the premises herein recited and without the interposition of this honorable court for his due protection and the due conservation of his rights, as a citizen of the United States, he is practically remediless by an appeal in regular course or otherwise.” The petitioner, therefore, asked for a writ of habeas corpus in order that he might be discharged from custody. The writ having been duly served, the sheriff made return showing that he held the petitioner by virtue of a writ issued upon the indictment, and he further alleged that the authorities had been anxious and ready to accord all the defendants under the indictment that speedy trial which they were guaranteed under the constitution and the laws of the State of Texas; that the delay had come in great part from the action of the defendants; that at the first term of court after the indictment was presented, the case was set down for trial on the 14th of March, and was thereafter continued by agreement between the State and the defendants; that at the succeeding BAKER V. GRICE. 289 Statement of the Case. September term the case was set down for trial on October 4, and on that day it was postponed upon motion of the defendants and set down for the November term, to be tried on the 2d of December, 1895, and that when the cause was called on that day the defendants, including the petitioner, claimed a severance, to which they were entitled under the laws of Texas, and forced the State to try Hathaway alone, thereby avoiding and defeating a trial of the petitioner herein. The sheriff further returned that the purpose of the petitioner and his co-defendants was, as he believed, to defeat the jurisdiction of the courts of Texas in the administration of its laws; and that the relator and his co-defendants had agreed among themselves to have their several sureties surrender them into the custody of the sheriff, and that by their own acts and at their own request and by their own procurement the sureties of petitioner and his co-defendants did surrender them, and on the day of the surrender and contemporaneously with it a writ of habeas corpus from the Circuit Court was served upon the sheriff, commanding him to produce before the court instanter the body of petitioner. Attached to the return were the affidavits of the sureties of the petitioner, in which they said in substance that the petitioner wanted them to surrender him to the sheriff on the day named, and that by his request they went to the lawyer’s office and met the petitioner and accompanied him to the office of the sheriff, where they surrendered him to the sheriff. The petitioner filed a replication which was in substance an admission of the truth of many of the allegations made in the return and the accompanying affidavits, but denied their materiality, and claimed that they furnished no answer to the allegations of the petitioner, as contained in his petition. The relator did deny that he had conspired or confederated for the purpose of defeating the jurisdiction of the courts of Texas or the administration of its laws; on the contrary, he alleged that for two years he and his co-defendants had submitted to the jurisdiction of the courts of Texas for the purpose of trial, and that when it became evident to the petitioner and his co-defendants that a trial was not to be had except at some VOL. CLXIX—19 290 OCTOBER TERM, 1897. Opinion of the Court. indefinite period in the future, if ever, then the petitioner “as a citizen of the United States proceeded to exercise his rights as such citizen and to call upon the courts of the United States to vindicate his rights as he was entitled under the Constitution and laws of the United States, and not for the purpose of defeating the jurisdiction of said courts of Texas, but for the purposes as indicated.” After hearing the parties, the Circuit Court decided that a proper case had been made out for its interference by virtue of the writ of habeas corpus, and thereupon held that the statute of tlie State of Texas called the anti-trust law was a violation of the Constitution of the United States, and, consequently, void. The court, therefore, discharged the petitioner, and from that order this appeal has been taken. Mr. M. M. Crane for appellant. Mr. George Clark and Mr. Joseph II. Choate for appellees. Mr. John D. Johnson and Mr. D. C. Bolinger were on Mr. Clark's brief. Mr. S. C. T. Dodd was on Mr. Choate's brief. Mr. Justice Peckham, after stating the case, delivered the opinion of the court. The court below had jurisdiction to issue the writ and to decide the questions which were argued before it. Ex parte Boy all, 117 U. S. 241; Whitten v. Tomlinson, 160 U. S. 231. In the latter case most of the prior authorities are mentioned. From these cases it clearly appears, as the settled and proper procedure, that while Circuit Courts of the United States have jurisdiction, under the circumstances set forth in the foregoing statement, to issue the writ of habeas corpus, yet those courts ought not to exercise that jurisdiction by the discharge of a prisoner unless in cases of peculiar urgency, and that instead of discharging they will leave the prisoner to be dealt with by the courts of the State; that after a final determination of the case by the state court, the Federal courts will even then generally leave the petitioner to his remedy by writ of BAKER v. GRICE. 291 Opinion of the Court. error from this court. The reason for this course is apparent. It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued. Such are the cases In re Loney, 134 IT. S. 372, and In re Neagle, 135 IT. S. 1, but the reasons for the interference of the Federal court in each of those cases wTere extraordinary, and presented what this court regarded as such exceptional facts as to justify the interference of the Federal tribunal. Unless this case be of such an exceptional nature, we ought not to encourage the interference of the Federal court below with the regular course of justice in the state court. The ground for the discharge of the petitioner in this case, as given by the court below, was because of the opinion of that court that the anti-trust law of the State of Texas violated the Constitution of the United States, and was therefore void. The question of the validity of that act of course exists whether the case be in the state court or a hearing transferred to the Federal court by virtue of the writ of habeas corpus. It is the duty of the state court, as much as it is that of the Federal courts, when the question of the validity of a state statute is necessarily involved as being in alleged violation of any provision of the Federal Constitution, to decide that question, and to hold the law void if it violate that instrument. But the state court is not bound to decide the constitutional question when there are other grounds for reversing a conviction under the law, upon pain of having its omission furnish a ground for Federal interference. The special circumstances creating what the court below regarded as a necessity for its immediate action, and which made the case one of urgency, are stated in the opinion of the court rendered in discharging the prisoner. 292 OCTOBER TERM, 1897. Opinion of the Court. The first circumstance stated is that the Court of Criminal Appeals did not decide, when it had the opportunity, the question of the constitutionality of the act in question, and that that court, while deciding it was unnecessary to pass upon the constitutional questions raised, “ referred favorably to the decisions of the Supreme Court of the State in which the antitrust law had been sustained in this regard.” It is matter of common occurrence — indeed, it is almost the undeviating rule of the courts, both state and Federal — not to decide constitutional questions until the necessity for such decision arises in the record before the court. This court has followed that practice from the foundation of the Government, and we can see no reason for just criticism upon the action of the state court in refusing to decide the question of the constitutionality of this act, when, at the same time, it held in substance that there was no evidence upon which to sustain the conviction of the defendant upon the indictment then before it, and that therefore the judgment should be reversed. In granting a new trial, it cannot properly be urged that the court failed to fulfil its duty towards the defendant in any degree whatever, because it did not decide the constitutional question as desired by him. The decision of the case was upon such a ground that the probability was that no conviction of the defendant could thereafter be had under that indictment. When the judgment of conviction was reversed the defendant Hathaway gave bail, and remained at large until the proceedings for his discharge were taken some six months after the judgment of reversal had been given. Criticism is also made upon the fact that the state court did not discharge Hathaway after the decision upon his appeal until the Circuit Court issued the writ of habeas corpus some six months thereafter. It does not appear that Hathaway had applied to have his case tried, nor to be discharged from the indictment by reason of the decision granting him a new trial. However that may be, Hathaway’s case was finished by his actual discharge, and it has no further bearing upon the action of the state court in this case. It is also said that since the trial of Hathaway and the BAKER V. GRICE. 293 Opinion of the Court. granting of a new trial to him the case of the petitioner has not been called for trial, and that two terms of court since the granting of a new trial to Hathaway had come and the second one was about expiring at the time when the petitioner filed his petition in the Circuit Court for this writ. Here again there is no allegation and no proof that any attempt had been made on the part of this petitioner to obtain a trial in the state court or that he had been refused such trial by that court upon any application which he made. It is the simple case of a failure to call the indictment for trial, the petitioner being in the meantime bn bail and making no effort to obtain a trial and evincing no desire by way of a demand that a trial in his case should be had. We do not say that a refusal to try a person who is on bail can furnish any foundation for a resort to the Federal courts, even in cases in which a trial may involve Federal questions, but in this case no refusal is shown. A mere omission to move the case for trial (the party being on bail) is all that is set up, coupled with the assertion that defendant was eager and anxious for trial, but showing no action whatever on his part which might render such anxiety and eagerness known to the state authorities. It was also stated that the petitioner could expect little better results on a trial of his case in the state court than obtained upon the trial in the Hathaway case. We think this statement is entirely without proof or even probability. The petitioner was indicted as one of several defendants under the same statute, and it is claimed that those of them mentioned in the indictment who resided in Texas were situated similarly to Hathaway. The probability, therefore, would be exceedingly strong that if the petitioner were tried upon the indictment found against him he would have to be acquitted by direction of the court for lack of evidence, under the decision of the Criminal Court of Appeals in Hathaway’s case. We are of opinion that neither one of the grounds taken by the court below nor all combined furnish any reason for the discharge of petitioner upon the writ issued by that court. The surrender of the petitioner by his bail at his request and 291 OCTOBER TERM, 1897. Opinion of the Court. his consequent imprisonment furnishes in itself no ground of urgency for the interference of a Federal court. The imprisonment is entirely voluntary, and while the surrender by his bondsmen may be good for the purpose of avoiding any technical objection to the issuing of the writ founded upon the fact that the petitioner was on bail, yet the fact of imprisonment under such circumstances adds nothing to the strength of his case as calling for the interposition of the Federal court. This whole case is clearly nothing but an attempt to obtain the interference of a court of the United States when no extraordinary or peculiar circumstances exist in favor of such interference. Upon the facts appearing herein, we think no sufficient case was made out for the exercise of the jurisdiction of the Circuit Court. We come to this decision irrespective of the question of the validity of the state statute and without passing upon the same or expressing any opinion in regard thereto. If this application had been made subsequently to a trial of the petitioner in the state court and his conviction upon such trial under a holding by that court that the law was constitutional, and where an appeal from such judgment of conviction merely imposing a fine could not be had, excepting upon the condition of the defendant’s imprisonment until the hearing and decision of the appeal, a different question would be presented and one which is not decided in this case, and upon which we do not now express any opinion. The order of the Circuit Court for the Northern District of Texas must he reversed, and the case rem anded to that court with instructions to set aside the order discharging the prisoner, and to enter an order remanding him to the custody of the sheriff. In Baker v. Austin, No. 337; Baker v. Hawkins, No. 338; and Baker v. Finley, No. 339, involving the same question and argued with this case, the same order is made. WILLIS v. EASTERN TRUST AND BANKING CO. 295 Statement of the Case. WILLIS v. EASTERN TRUST AND BANKING COMPANY. CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 383. Submitted October 18, 1897. —Decided February 21, 1898. A summary process to recover possession of land, under the landlord and tenant act of the District of Columbia, (Rev. Stat. D. C. c. 19,) can be maintained only when the conventional relation of landlord and tenant exists or has existed between the parties; and cannot be maintained by a mortgagee against his mortgagor in possession after breach of condition of the mortgage, although the mortgage contains a provision that until default the mortgagor shall be permitted to possess and enjoy the premises, and to take and use the rents and profits thereof, “ in the same manner, to the same extent, and with the same effect, as if this deed had not been made.” This was a summary process to recover possession of land in the city of Washington, under section 684 of the Revised Statutes of the District of Columbia, commenced September IT, 1894, by complaint before a justice of the peace, by the Eastern Trust and Banking Company against Edward M. Willis and William G. Johnson, each of whom pleaded title in Johnson; and the case was thereupon certified to tho Supreme Court of the District of Columbia. In accordance with a general rule of that court, requiring the plaintiff, in such a process, to file “a declaration making demand for the possession of the premises, with a description thereof, as in ejectment,” the plaintiff filed a declaration, demanding possession of the land, describing it by metes and bounds, and alleging that the defendants entered thereon, and unlawfully ejected the plaintiff therefrom, and unlawfully detained the same from the plaintiff. The parties submitted the case to the determination of the court, without a jury, upon an agreed statement of facts, in substance as follows’: The plaintiff was a corporation organized under a charter granted by the legislature of the State of Maine, by which it 296 OCTOBER TERM, 1897. Statement of the Case. was located at the city of Bangor in the county of Penobscot, and was authorized to establish agencies elsewhere in that State. Johnson was sued as assignee of the American Ice Company, a corporation of Maine, and doing business at Bangor and also at the city of Washington; and Willis was sued as the tenant or lessee of Johnson. On December 2, 1889, by an indenture, in the nature of a mortgage, executed in Maine, and duly recorded in that State and in the District of Columbia, the American Ice Company conveyed to the Eastern Trust and Banking Company, “ and its successors, in trust, with full power of succession to and enjoyment of the franchises of the corporation, all its real estate, wharves, icehouses, boarding-house, stables, boilers, elevator and machinery, situated in the town of Hampden in said county of Penobscot, and in the city of Washington in the District of Columbia, together with all and singular the privileges and appurtenances thereto belonging,” to secure the payment of bonds of the ice company to the amount of $40,000, payable to the trust company at its office in Bangor in equal instalments of $5000 each, in three, four, five, six, seven, eight, nine and ten years after date, with interest. The deed provided, among other things, as follows: First. “ Until default shall be made in the payment of the principal or interest of said bonds or some of them, or in the maintenance of insurance, or in the payment of taxes or assessments as herein provided, or until default shall be made in respect to something by these presents required to be done by said party of the first part, the American Ice Company shall be permitted and suffered to possess, manage, develop, operate and enjoy the plant and property herein conveyed, and intended so to be, and to take and use the income, rents, issues and profits thereof, in the same manner, to the same extent, and with the same effect, as if this deed had not been made.” Second. If the ice company shall pay the principal and interest, and do all other things required to be done on its part, this deed shall be void. But if any default shall be made, and shall continue for ninety days, the whole amount of the bonds, principal and interest, shall be deemed immediately due and WILLIS v. EASTERN TRUST AND BANKING CO. 297 Statement of the Case. payable, “ and it shall be lawful for the trustee to enter into or upon the premises and property hereby granted, or intended so to be, and to take possession of the whole or any part thereof,” and to sell and dispose of the same by public auction in Bangor, giving notice, as therein required, in newspapers published in Bangor and in Washington, and “in its own name, or in the name of the American Ice Company, to make, execute, acknowledge and deliver to the purchaser or purchasers at such sale a good and sufficient deed or deeds of conveyance of the property so sold ; and any sale made as aforesaid shall be a perpetual bar, both at law and in equity, against the American Ice Company, and all persons claiming by, through or under it, from claiming the property, rights, interestsand franchises so sold, or any interest therein.” The proceeds of the sale, after payment of expenses, shall be paid over ratably to the bondholders, and the remainder, if any, to the ice company. Third. “ The.foregoing provision for a sale under the power aforesaid is cumulative with the ordinary remedy of foreclosure by entry or suit therefor; and the trustee hereunder may, upon default being made as aforesaid, institute and carry out proceedings to foreclose this mortgage or deed of trust, by suit or otherwise, in such manner as may be authorized by law for the foreclosure of mortgages of real estate. And the American Ice Company hereby waives any and all rights of sale or redemption, now or hereafter provided by the statutes of Maine or of the United States.” The bonds were duly issued, as recited in the mortgage, and were delivered to and held by purchasers for value in the regular course of business. The first instalment of the bonds, and all interest which fell due on or before December 1, 1892, were paid. The rest of the bonded debt, and the interest thereon, were never paid, and were due and payable at the time of the commencement of this suit. On October 13, 1893, the ice company executed to Johnson an assignment of all its property for the benefit of its creditors, under the act of Congress of February 24, 1893, c. 157. 27 Stat. 474. Johnson accepted the assignment, and assumed 298 OCTOBER TERM, 1897. Counsel for Parties. the duties of assignee; and as such, on January 29, 1894, executed to Willis a lease in .writing of all the ice company’s real estate in the city of Washington, for one year from that date, at a monthly rent of $130. After the default which took place on December 1, 1893, had continued more than ninety days, a majority of the bondholders directed the trust company to proceed in the execution of the trust. In pursuance of that direction, and of the power contained in the mortgage, the trust company advertised and exposed the whole mortgaged property for sale by auction at Bangor on May 4, 1894. The sale was adjourned until September 8, 1894, when the property was sold, and was purchased by a committee of the bondholders, and for their benefit. The terms of the sale have not yet been complied with, nor any deed made to the purchasers, it being understood and agreed between them and the trustee, at the time of the sale, that the trustee should first obtain possession of the property. The trust company, on July 30, 1894, caused a thirty days’ notice to quit to be served on Johnson and on Willis; and on September 17, 1894, commenced this suit to recover possession of the property by causing a seven days’ summons to be issued to each of them by a justice of the peace of the District of Columbia; and thereupon subsequent proceedings took place as above stated. Upon the agreed statement of facts, the Supreme Court of the District of Columbia gave judgment for the defendants. The plaintiff appealed to the Court of Appeals, which reversed the judgment, and remanded the case with directions to enter judgment for the plaintiff. 6 App. D. C. 375. The defendants sued out a writ of error from this court, which was dismissed for want of jurisdiction. 167 U. S. 76. They then obtained from this court this writ of certiorari to the Court of Appeals, under the act of March 3,1897, c. 390. 29 Stat. 692; 167 U. S. 746. Mr. Calderon Carlisle and Mr. William G. Johnson for Willis and Johnson. Mr. B. F. Leighton for the Trust and Banking Company. WILLIS v. EASTERN TRUST AND BANKING CO. 299 Opinion of the Court. Mk. Justice Gray, after stating the case, delivered the opinion of the court. Sections 680-691 of the Revised Statutes of the District of Columbia, contained in chapter 19, entitled “Landlord and Tenant,” are a reenactment of the act of Congress of July 4, 1864, c. 243, entitled “ An act to regulate proceedings in cases between landlord and tenants in the District of Columbia.” 13 Stat. 383. By sections 681 and 682, (reenacting section 1 of the act of 1864,) “a tenancy at will shall not arise or be created without an express contract or letting to that effect, and all occupation, possession or holding of any messuage or real estate, without express contract or lease, or by such contract or lease the terms of which have expired, shall be deemed and held to be tenancies by sufferance;” and “all estates at will and sufferance may be determined by a notice in writing to quit of thirty days.” By section 684, (reenacting section 2 of the act of 1864,) “ when forcible entry is made, or when a peaceable entry is made and the possession unlawfully held by force, or when possession is held without right, after the estate is determined by the terms of the lease by its own limitation, or by notice to quit, or otherwise,” then, “ on written complaint, on oath, of the person entitled to the premises, to a justice of the peace, charging such forcible entry or detainer of real estate, a summons may be issued to a proper officer, commanding the person complained of to appear and show cause why judgment should not be rendered against him.” The statute further provides as follows: The summons shall be served at least seven days before the appearance of the party complained of. If it appears by default, or upon trial, that the plaintiff is entitled to the possession of the premises, he shall have judgment and execution for the possession and costs; if the plaintiff fails to prove his right to possession, the defendant shall have judgment and execution for his costs. If, upon trial, the defendant pleads title in himself, or in another person under whom he claims the premises, the case is 300 OCTOBER TERM, 1897. Opinion of the Court. to be certified to the Supreme Court of the District of Columbia, and each party is to recognize to the other, the defendant “ to pay all intervening damages and costs and reasonable intervening rent for the premises,” and the plaintiff to enter the suit and to pay all costs adjudged against him. An appeal to the same court may be taken by either party against whom judgment is rendered by the justice of the peace. Rev. Stat. D. C. §§ 685-689; Act of July 4,1864, c. 243, §§ 2-4; 13 Stat. 383, 384. This plaintiff is the mortgagee of land in the District of Columbia, under a deed of trust to secure the payment of certain bonds, in instalments payable in successive years, with interest; and providing that until default the mortgagor shall be permitted to possess and enjoy the property, and to take and use the income, rents, issues and profits thereof, “ in the same manner, to the same extent and to the same effect, as if this deed had not been made; ” but that, if any default be made, and be continued ninety days, the trustee may enter upon the property, and sell the same by public auction, or may pursue the ordinary remedy of foreclosure by entry or suit, as authorized by law. . The mortgagor assigned the property to an assignee for the benefit of creditors; the assignee made a lease in writing thereof for a year at a monthly rent; default was made and continued for ninety days; and the mortgagee, after giving the assignee and his lessee thirty days’ notice to quit, instituted this process against them* to recover possession under the landlord and tenant act of the District of Columbia. The principal question presented by the record is whether, in a case like this, where there has been neither forcible entry nor detainer by force, a mortgagee entitled to possession after condition broken is within the scope and effect of the statute. In Barber v. Harris, (1888) 6 Mackey, 586, affirmed by this court in Harris n. Barber, (1889) 129 U. S. 366, cited in support of the judgment below, this question was not and could not be decided. That case arose upon a writ of certiorari to a justice of the peace, by which his judgment for WILLIS v. EASTERN TRUST AND BANKING CO. 301 Opinion of the Court. possession under the statute was sought to be set aside upon allegations that the plaintiff was a purchaser at a sale under a mortgage, and the conventional relation of landlord and tenant did not exist between the parties, and therefore the justice of the peace had no jurisdiction. The ground on which both the Supreme Court of the District of Columbia and this court declined to set aside the judgment of the justice of the peace was, that the existence of the relation of landlord and tenant between the parties, and the jurisdiction of the justice of the peace over the case, were sufficiently shown by general allegations in the complaint that the plaintiff was entitled to the possession of the premises, and that they were detained from him and held without right by the defendant, tenant thereof by the sufferance of the plaintiff, and whose tenancy and estate therein had been determined by thirty days’ notice to quit; and that these allegations could not be contradicted upon that writ of certiorari. See 6 Mackey, 594, 595; 129 U. S. 368, 371. In Jennings v. 17^5, (1892) 20 D. C. 317, 322, in which it was decided that one tenant in common could not maintain this form of proceeding against his co-tenant, Justice Cox, speaking for Justices Hagner and James, as well as for himself, said: “ There seems to be a little misapprehension of the nature of this proceeding. While our rule requires the plaintiff to file a declaration, as in ejectment, that does not convert the proceeding into an action of ejectment at all, in which the plaintiff recovers upon the strength of his title. In this proceeding, unless he establishes the relation of landlord between himself and the defendant, no matter what the form of declaration is, he is not entitled to recover. I have always held that at special term, and that is the opinion that we entertain now. It is still a landlord and tenant proceeding.” In two earlier cases, a purchaser at a sale under a deed of trust in the nature of a mortgage had been declared, by the Supreme Court of the District of Columbia in general term, to be entitled to maintain this proceeding against the mortgagor, who had remained in possession without the plaintiff’s consent, and had been served with a thirty days’ notice to quit. 302 OCTOBER TERM, 1897. Opinion of the Court. But in the first of those cases this was wholly obiter dictum the appeal to the general term being dismissed because the judgment in special term was final; and in the other case no question appears to have been raised upon the construction of the statute. Luchs v. Jones, (1874) 1 McArthur, 345 ; Fiskes. Bigelow, (1876) 2 McArthur, 427. Afterwards, in Loring n. Bartlett, (1894) 4 App. D. C. 1, the Court of Appeals, speaking by Chief Justice Alvey, reversing a judgment of the Supreme Court of the District of Columbia, and quoting from Birch v. Wright, 1 T. R. 378, 382, 383, refrained from expressing a definite opinion upon the question “ whether the simple and ordinary relation of mortgagor and mortgagee involves the relation of landlord and tenant by implication of law, within the meaning and sense of . the statute;” and maintained the suit, solely upon the ground that a provision, in a trust deed to secure the payment of promissory notes, by which the mortgagee and her heirs and assigns were to be permitted “ to use and occupy the said described premises, and the rents, issues and profits thereof to take, have and apply, to and for her and their sole use and benefit, until default be made in the payment of said notes or any of them,” constituted a re-demise from the mortgagee to the mortgagor, which would support a proceeding under the statute. The cases relied on in support of that decision were Georges Creek Co. v. Detmold, 1 Maryland, 225, 236, and some English cases, all of which were ordinary actions of ejectment, and none of them under statutes like that now in question. The decision in Loring v. Bartlett was followed by the Court of Appeals in the present case, without further discussion. 6 App. D. C. 375, 383. Upon full consideration of the terms of the act of Congress, and in view of the existing state of the law in this country at the time of its passage, this court is unable to concur in the conclusion of the Court of Appeals. The common saying that a mortgagor in possession is tenant at will to the mortgagee has been often recognized to be a most unsafe guide in defining the relation of mortgagee and WILLIS v. EASTERN TRUST AND BANKING CO. 303 Opinion of the Court. mortgagor, or in construing statutes authorizing landlords to recover possession against their tenants by summary process before a justice of the peace. In Moss v. Gallimore, (1779) Lord Mansfield said: “ A mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is only so quodam modo. Nothing is more apt to confound than a simile. When the court, or counsel, call a mortgagor a tenant at will, it is barely a comparison. He is like a tenant at will. The mortgagor receives the rent by a tacit agreement with the mortgagee, but the mort-gagee may put an end to this agreement when he pleases.” 1 Doug. 279, 282, 283. And in Birch v. Wright, (1786) Mr. Justice Buller said: “ He is not a tenant at will, because he is not entitled to the growing crops after the will is determined. He is not considered as tenant at will in those proceedings which are in daily use between a mortgagor and mortgagee; I mean in ejectments brought for the recovery of the mortgaged lands.” 1 T. R. 378, 383. Under early statutes of the State of New York, providing that any tenant at will, or at sufferance, or for years, holding over without permission of his landlord after the expiration of his term, or after default in the payment of rent, might be removed from the possession upon a proceeding commenced by the landlord before a justice of the peace, it was constantly held by the Supreme Court of the State that a mortgagee could not maintain this process against a mortgagor in possession ; and Chief Justice Savage said that for some purposes, indeed, the mortgagor, after condition broken, was considered as tenant to the mortgagee; but that the statute “ was clearly designed to afford a speedy remedy where the conventional relation of landlord and tenant existed, and not where that relation is created by operation of law; ” and “ the legislature never intended that the mortgagee should have a right to proceed under this statute to obtain possession of the mortgaged premises after forfeiture.” N. Y. Stat, of 1820, c. 194; 2 Rev. Stat, of 1828, pt. 3, c. 8, tit. 10, §§ 28 & seq ; Evertson v. Sutton, (1830) 5 Wend. 281, 284; Roach v. Cosine, (1832) 9 Wend. 227, 231, 232; Sims v. Humphrey, (1847) 4 Denio, 185, 187; Ben- 304 OCTOBER TERM, 1897. Opinion of the Court. jamin v. Benjamin, (1851) 5 N. Y. 383, 388; People v. Simpson, (1863) 28 N. Y. 55, 56. It is true, as has been heretofore observed by this court, that in the State of New York the courts of law had, by a gradual progress, adopted the views of courts of equity in relation to mortgages, and considered the mortgagor, whilst in possession and before foreclosure, as the real owner, except as against the mortgagee, and as having the right of possession, even as against the mortgagee; whereas by the law of Maryland, prevailing in the District of Columbia, the legal estate is considered as vested in the mortgagee, and, as soon as the estate in mortgage is created, the mortgagee may enter into possession, though he seldom avails himself of that right. Van Ness v. Hyatt, 13 Pet. 294, 299. But the mortgagee has been equally held not to be entitled to maintain against the mortgagor a summary landlord and tenant process in States where, as in New England, the mortgagee is held to be the owner of the legal title. 1 Jones on Mortgages, § 58. The Revised Statutes of Massachusetts of 1836, c. 104, §§ 2, 4-9, contained provisions very similar to those of §§ 2-4 of the act of Congress of July 4, 1864, as to the cases in which and the persons by and against whom, the proceedings might be instituted, the service of summons, the form of judgment, and the removal of the case, by certificate or by appeal, into a court of record. In that chapter of the Massachusetts statutes of 1836, section 2 was as follows: “ When any forcible entry shall be made, or when an entry shall be made in a peaceable manner, and the possession shall be unlawfully held by force, and also when the lessee of any lands or tenements, or any person holding under such lessee, shall hold possession of the demised premises, without right, after the determination of the lease, either by its own limitation, or by a notice to quit, as provided in the sixtieth chapter,” (section 26 of which provided that estates at will might be terminated by either party by notice of three months, or by the landlord by fourteen days’ notice in case of non-payment of rent,) “ the person entitled to the premises may WILLIS v. EASTERN TRUST AND BANKING CO. 305 Opinion of the Court. be restored to the possession thereof, in the manner hereinafter provided.” And by section 4, “ the person entitled to the possession of the premises ” might obtain from a justice of the peace a summons to answer to a complaint charging the defendant with being in possession of the land in question, and holding it unlawfully and against the right of the plaintiff. It was the settled construction of that statute by the Supreme Judicial Court of Massachusetts, that a mortgagee, even after he had entered for the purpose of foreclosure, could not maintain an action against his mortgagor to recover possession of the mortgaged premises. “ Whilst the parties stood in the relation of mortgagor and mortgagee,” said Chief Justice Shaw, “ the defendant was not lessee, within the meaning of this statute. A mortgagor in possession is sometimes, in a loose sense, said to be tenant at will to the mortgagee. But he is not liable to rent, or to account for rents and profits; these he holds to his own use. He is like a tenant at will, because the mortgagee may enter upon the estate at his will, if he can do so peaceably, when not restrained by covenant.” Larned v. Clarke, (1851) 8 Cush. 29, 31. And again : “ The present statute contemplates three cases in which this process will lie : 1. Forcible entry ; 2. Forcible detainer; 3. A tenant holding against his landlord, either (1) after the determination of a lease by its own limitation ; or (2) after the expiration of a notice to quit duly given ; or (3) after a notice of fourteen days, for non-payment of rent. In the present case, the proof shows no forcible entry, no forcible detainer, no holding over of a tenant of demised premises. These are the only cases contemplated in this statute in which this summary process will lie. Although, in a loose sense, a mortgagor in possession is said to be tenant at will of the mortgagee, yet he is not within the reason or the letter of the Revised Statutes, c. 104, § 2. He is not lessee, or holding under a lessee, or holding demised premises without right, after the determination of the lease. The remedies of a mortgagee are altogether of a different character, clearly marked out by law.” Hastings n. Pratt, (1851) 8 Cush. 121, 123. See also Dakin v. VOL. CLXIX—20 306 OCTOBER TERM, 1897. Opinion of the Court. Allen, (1851) 8 Cush. 33 ; Gerrish v. Mason, (1855) 4 Gray, 432. In chapter 137 of the General Statutes of Massachusetts of 1860, the provisions of the Revised Statutes of 1836, above mentioned, were substantially reenacted, section 2 being put in the following form : “ When a forcible entry is made, or when a peaceable entry is made and the possession unlawfully held by force, or when the lessee of land or tenements, or a person holding under such lessee, holds possession without right, after the determination of the lease by its own limitation, or by notice to quit, or otherwise, the person entitled to the premises may be restored to the possession in the manner hereinafter provided.” The words “or otherwise” were apparently added in that section, because of its having been decided, under the earlier statute, that “ the determination of the lease by its own limitation ” did not include its determination by the lessor’s entry for breach of a condition in the lease. Fifty Associates v. Howland, (1846) 11 Met. 99 ; Whitwell v.-Harris, (1871) 106 Mass. 532. By section 5 of the statute of 1860, “ the person entitled to the possession of the premises” may obtain from a justice of the peace a summons “to answer to the complaint of the plaintiff, for that the defendant is in possession of the lands,” “ which he holds unlawfully and against the right of the plaintiff.” The provision, above quoted, of the statute of 1860, which defines the circumstances under which this summary process may be commenced before a justice of the peace, is almost exactly like the corresponding provision of the act of Congress of 1864, as will appear by putting the two together, with those words of the Massachusetts statute which have been omitted in the act of Congress printed in italics, and the words added in the act of Congress enclosed in brackets, as follows: “ When a forcible entry is made, or when a peaceable entry is made and the possession unlawfully held by force, or when the lessee of land or tenements, or a person holding under such lessee, holds possession [is held] without right, after the determination [estate is determined by the terms] of the lease by its own limitation, or by notice to quit, or otherwise.” WILLIS v. EASTERN TRUST AND BANKING CO. 307 Opinion of the Court. This provision, as incorporated in the act of Congress, though somewhat condensed in form, is essentially in the same words, and of precisely the same meaning, as the provision of the statutei of Massachusetts. While it omits the words “ the lessee of land or tenements, or a person holding under such lessee,” it still, like the Massachusetts statute, (in cases where there is neither forcible entry nor forcible detainer,) is restricted to cases in which “the lease” has been determined, and differs in this respect from the provision in the first section of the act of Congress, which defines tenancies by sufferance. The statute of Massachusetts and the act of Congress resemble each other in many other respects. Each authorizes “ the person entitled to the premises” to recover possession by complaint to a justice of the peace. Each authorizes the complaint to be in general terms; in Massachusetts, alleging that the defendant is in possession of the land, and holds it unlawfully and against the right of the plaintiff; in the District of Columbia, “charging a forcible entry or detainer of real estate.” Each requires the summons to be served seven days before appearance. The provisions as to the form of the judgment of the justice of the peace for either party are exactly alike in both statutes. Each statute provides that, when the title is put in issue, the case may be certified to a court of record; that from any judgment of the justice of the peace an appeal may be taken by either party to that court; and that upon such removal, either by certificate or by the defendant’s appeal, the defendant shall recognize to the plaintiff, with sufficient sureties, to pay intervening rent and damages. Mass. Gen. Stat, of 1860, c. 137, §§ 6-10; Act of Congress of July 4, 1864, c. 243, §§ 2-4; Rev. Stat. D. C. §§ 684-689. The resemblance between the provisions of the Massachusetts statute of 1860 and of the act of Congress of 1864 is so remarkable, that it is evident that the latter were taken from the former. This being so, the known and settled construction, which those statutes had received in Massachusetts before the original enactment of the act of Congress, must be considered as having been adopted by Congress with the text thus expounded. Tucker v. Oxley, 5 Cranch, 34,42; Pennock v. 308 OCTOBER TERM, 1897. Opinion of the Conrt. Dialogue, 2 Pet. 1, 18; Metropolitan Railroad v. Moore, 121 U. S. 558, 572; Warner v. Texas & Pacific Railway, 164 U. 8. 418, 423. In Metropolitan Railroad v. Moore, just cited, where provisions of statutes of New York, regulating judicial procedure, had been incorporated by Congress, in substantially the same language, in the legislation concerning the District of Columbia, it was held that Congress must be presumed to have adopted those provisions as then understood in New York and already construed by the courts of that State, and not as affected by the previous practice in Maryland or in the courts of the District of Columbia. Before the passage of the act of Congress of 1864, the Supreme Judicial Court of Maine had held that a mortgagee could not proceed against his mortgagor under a statute of that State, the leading sections of which provided that “ a process of forcible entry and detainer may be commenced against a disseizor, who has not acquired any claim by possession and improvement; and against a tenant holding under a written lease or contract, or person holding under such tenant, at the expiration or forfeiture of the term, without notice;” “ and against a tenant at will, whose tenancy has been terminated ” by notice to quit, in which last case “ the tenant shall be liable to the process aforesaid without further notice, and without proof of any relation of landlord and tenant.” Maine Rev. Stat, of 1857, c. 94; Reed v. Elwell, (1858) 46 Maine, 270, 278, 279; Dunning v. Finson, (1859) 46 Maine, 546, 553. See also Sawyer v. Hanson, (1845) 24 Maine, 542; Clementi-Bennett, (1879) 70 Maine, 207. Similar opinions have been expressed in cases arising m other States under statutes differing in language, but having the same general purpose. Davis v. Hemenway, (1855) 27 Vermont, 589; McCombs v. Wallace, (1872) 66 No. Car. 481; Greer v. Wilbar, (1875) 72 No. Car. 592; Necklace v. West, (1878) 33 Arkansas, 682; Nightingale v. Barens, (1879) 47 Wisconsin, 389; Steele v. Bond, (1881) 28 Minnesota, 267, Chicago, Burlington de Quincy Railroad v. Skupa, (1884) 16 Nebraska, 341. We have not been referred to, and are not aware of, a single case in any State in which a summary WILLIS v. EASTERN TRUST AND BANKING CO. 309 Opinion of the Court. process of this kind has been maintained by a mortgagee against his mortgagor, unless specifically given by distinct provision in the statute. The view which has been generally, if not universally, entertained by the courts of the several States upon this subject has been well expressed by the Supreme Court of Minnesota in Steele v. Bond, above cited, as follows: “The act concerning forcible entries and unlawful detainers, so far as it affords a remedy for landlords against tenants who unlawfully detain the premises after a default in the payment of the rent, or the expiration of the term, must be construed as similar acts have always been construed, by the courts of other States, to apply only to the conventional relation of landlord and tenant. It was not intended as a substitute for the action of ejectment, nor to afford means of enforcing agreements to surrender possession of real estate, where either that relation does not exist or has not existed. The foundation fact upon which the jurisdiction rests is that the tenant is in possession of the land in consequence and by virtue of that relation, and unlawfully withholds possession after a default in the performance of the terms upon which he entered, or after his term has expired.” 28 Minnesota, 273. Considering the terms of the act of Congress, the settled construction, before the passage of that act, of the statute of Massachusetts from which it appears to have been taken, and the general course of decision in this country under statutes on the same subject, the reasonable conclusion is that, in order to sustain this form of proceeding, the conventional relation of landlord and tenant must exist or have existed between the parties. A mortgagee holds no such relation to a mortgagor in possession. The mortgagor, though loosely called a tenant at will of the mortgagee, is such in no other sense than that his possession may be put an end to whenever the mortgagee pleases. Lord Mansfield, in Moss v. Gallimore, 1 Doug. 279, 283; Lord Selborne, in Lows v. Telford, 1 App. Cas. 414, 426; Shaw, C. J., in Larned v. Clarice, 8 Cush. 29, 31; Carroll v. Ballance, 26 Illinois, 9, 19. The mortgagee may take possession 310 OCTOBER TERM, 1897. Opinion of the Court. at any time; but, so long as there has been no breach of condition of the mortgage, this right is rarely exercised, and the mortgagor is usually permitted, by oral or tacit agreement with the mortgagee, or by express stipulation in the mortgage, to remain in possession. 2 BL Com. 158; Moss v. Gallimore, above cited; Colman v. Packard, 16 Mass. 39; Flagg v. Flagg, 11 Pick. 475, 477; Jamieson v. Bruce, 6 Gill & Johns. 72, 75; Van Ness v. Hyatt, 13 Pet. 294, 299. Until the mortgagee takes actual possession, the mortgagor is not liable, without an express covenant to that effect, to pay rent, and is entitled to take the rents and profits to his own use. Teal v. Walker, 111 U. S. 242, 248-251, and cases cited; Freedman's Saving Co. v. Shepherd, 127 U. S. 494, 502; Larned v. Clarke, above cited. When the mortgagor remains in possession with the assent of the mortgagee, without formal agreement, no one would think of saying that there was a lease from the mortgagee to the mortgagor, or that the relation of landlord and tenant existed between them. An express stipulation in the mortgage, that the mortgagor may remain in possession until breach of condition, is intended merely to put in definite and binding form the understanding of the parties as to the exercise of their rights as mortgagor and mortgagee, and not to create between them a distinct relation of tenant and landlord. Anderson v. Strauss, 98 Illinois, 485. That such was the understanding and intention of the parties to the deed of trust in this case is apparent from its terms, by which the American Ice Company mortgages all its real estate, wharves, icehouses and other buildings and machinery; and it is provided that, until default, the mortgagor “ shall be permitted and suffered to possess, manage, develop, operate and enjoy the plant and property herein conveyed, and intended so to be, and to take and use the income, rents, issues and profits thereof, in the same manner, to the same extent, and with the same effect, as if this deed had not been made.” The result is, that the plaintiff is not entitled to maintain this process, but must be left, so far as the aid of a court of RICHMOND &c. RAILROAD CO. v. TOBACCO CO. 311 Counsel for Plaintiff in Error. justice is requisite to secure the rights conferred by the mortgage, to the appropriate remedy of a writ of ejectment, or a bill of foreclosure. Comp. Stat. D. C. c. 48, § 1 ; c. 55, § 10 ; Hogan v. Kurtz, 94 U. S. 773 ; Hughes n. Edwards, 9 Wheat. 489. Judgment of the Court of Appeals reversed, and case remanded with directions to affirm the judgment of the Supreme Court of the District of Columbia. RICHMOND AND ALLEGHANY RAILROAD COMPANY v. R. A. PATTERSON TOBACCO COMPANY. ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA. No. 172. Submitted January 4,1898. —Decided February 21,1898. Section 1295 of the Virginia Code of 1887, enacting that “ when a common carrier accepts for transportation anything, directed to a point of destination beyond the terminus of his own line or route, he shall be deemed thereby to assume an obligation for its safe carriage to such point of destination, unless, at the time of such acceptance, such carrier be released or exempted from such liability by contract in writing signed by the owner or his agent ; and, although there be such contract in writing, if such thing be lost or injured, such common carrier shall himself be liable therefor, unless, within a reasonable time after demand made, he shall give satisfactory proof to the consignor that the loss or injury did not occur while the thing was in his charge ” does not attempt to substantially regulate or control contracts as to interstate shipments, but simply establishes a rule of evidence, ordaining the character of proof by which a carrier may show that, although it received goods for transportation beyond its own line, nevertheless, by agreement, its liability was limited to its own line ; and it does not conflict with the provisions of the Constitution of the United States, touching interstate commerce. The case is stated in the opinion. Hr. H. T. Wickham and Mr. Henry Taylor, Jr., for plaintiff in error. 312 OCTOBER TERM, 1897. Opinion of the Court. Mr. A. W. Patterson for defendant in error. Mr. Justice White delivered the opinion of the court. In August, 1888, the Patterson Tobacco Company delivered to the Richmond and Alleghany Railroad, which was then in the hands of receivers, a lot of tobacco consigned to Mann and Levy, Bayou Sara, Louisiana. On receiving the tobacco the railroad issued a bill of lading whereby it was expressly stipulated that it should only be liable for the transportation of the goods over its own line, and beyond this was to be responsible solely as a forwarder, that is to say, that all its obligations should be discharged if it safely carried the goods over its own road, and delivered them to a connecting carrier. The limitations on this subject in the bill of lading were full and clear, and there is no question that if the rights of the parties are to be measured by the terms of the bill of lading, the carrier was not liable for a loss happening beyond its line. When this shipment was made there was no law of the State of Virginia forbidding or purporting to forbid a carrier, in receiving goods for interstate shipment, from restricting its liability in accordance with the tenor of the bill of lading in question. In fact, the Supreme Court of Appeals of Virginia in this case expressly held that the Virginia law sanctions a contract made by a carrier to that effect. The bill of lading for the tobacco, issued as above stated, was not signed by the shipper, although at the time the freight was received and when the bill was issued the Code of Virginia contained the following provision: “ When a common carrier accepts for transportation anything directed to a point of destination beyond the terminus of his own line or route, he shall be deemed thereby to assume an obligation for its safe carriage to such point of destination, unless, at the time of such acceptance, such carrier be released or exempted from such liability by contract in writing signed by the owner or his agent; and, although there be such contract in writing, if such thing be lost or injured, such common carrier shall himself be liable therefor, unless, within a reasonable time after demand made, he shall give satisfactory proof RICHMOND &c. RAILROAD CO. v. TOBACCO CO. 313 Opinion of the Court. to the consignor that the loss or injury did not occur while the thing was in his charge.” Sec. 1295, Virginia Code of 1887. The tobacco not having been delivered to the consignees, the shippers sued the Richmond and Alleghany Railroad for the value thereof, on the assumption that the railroad was responsible as a common carrier for the non-delivery. The corporation relied for its defence on the contract embodied in the bill of lading, and on the fact that the tobacco had been duly transferred to a connecting carrier, and was thereafter lost. The case was submitted to the trial court on an agreed statement, admitting the receipt of the goods, the issue of the bill of lading, the fact that it was not signed by the shipper, and the loss of the tobacco beyond the lines of the defendant. The plaintiff rested on the statute above quoted, and the defendant company on its claim that the statute was a regulation of interstate commerce, and therefore in conflict with the Constitution of the United States. The trial court held the railroad liable, and from a judgment of the Supreme Court of Appeals of the State of Virginia, affirming its action, this writ of error is prosecuted. The Supreme Court of Appeals of Virginia in its able opinion, and the counsel of both parties at bar conceded, that an attempt on the part of a State to prohibit a carrier, as to an interstate shipment, from limiting its liability to its own lines would be a regulation of interstate commerce, and therefore void. We shall, therefore, not examine this question, but shall proceed to a consideration of the case without expressing any opinion upon it. It is manifest that the statute of the State of Virginia in question does not attempt to substantially regulate or control contracts as to interstate shipments, but simply establishes a rule of evidence ordaining the character of proof by which a carrier may show that, although it received goods for transportation beyond its own line, nevertheless, by agreement, its liability was limited to its own line. That this is the sole purpose of the statute seems too plain for anything but statement. It leaves the carrier free to make such limitation as to liability on an interstate shipment beyond its own line as it may deem proper, provided only the 314 OCTOBER TERM, 1897. Opinion of the Court. evidence of the contract is in writing and signed by the shipper. The distinction between a law which forbids a contract to be made and one which simply requires the contract when made to be embodied in a particular form is as obvious as is the difference between the sum of the obligations of a contract and the mere instrument by which their existence may be manifested. The contract is the concrete result of the meeting of the minds of the contracting parties. The evidence thereof is but the instrument by which the fact that the will of the parties did meet is shown. The failure to bear this plain distinction in mind is the fallacy which is involved in all the contentions which are pressed by the plaintiff in error. It is of course elementary that, where the object of a contract is the transportation of articles of commerce from one State to another, no power is left in the States to burden or forbid it; but this does not imply that, because such want of power obtains, there is also no authority on the part of the several States to create rules of evidence governing the form in which such contracts when entered into within their borders may be made, at least, until Congress, by general legislation, has undertaken to govern the subject. But it is said, although the learned court below announced as an abstract principle that under the law of Virginia a carrier was free, when receiving an interstate shipment, to limit his liability to his own line, the conclusion reached by the court was inconsistent with this ruling, and, in effect, substantially repudiated its correctness. The line of reasoning by which this proposition is supported is this: If there had been no statute, it is said, the court admitted that the terms of the bill of lading would have exempted the carrier from liability beyond its own line, but by applying the statute to the bill of lading it did not so exempt the carrier, therefore the statute was so enforced as to prevent the carrier from contracting, and hence its application negatived the power to contract for such exemption. But the inconsequence is in the argument of the plaintiff in error and not in the reasoning or the conclusion of the court. The inadequacy of the bill of lading to protect the carrier from liability beyond RICHMOND &c. RAILROAD CO. v. TOBACCO CO. 315 Opinion of the Court. its own line resulted, it is true, from the statute, but not because the statute forbade the carrier from contracting so as to limit his liability, but because the contract which he did make was not in the form required by law, and therefore was not evidence that there was such a contract. Indeed, the entire argument upon which it is asserted that error was committed by the court below, but manifests in varying forms of statement the fallacy already noticed, that is, it comes from obscuring the difference between substance and form, between a power to contract and the asserted right in availing of the authority, to disregard the requisites essential to show a valid contract, and this confusion of thought also marks the difference between the case now presented and the very many adjudged cases cited by the plaintiff in error in support of its proposition. Of course, in a latitudinarian sense any restriction as to the evidence of a contract, relating to interstate commerce, may be said to be a limitation on the contract itself. But this remote effect, resulting from the lawful exercise by a State of its power to determine the form in which contracts may be proven, does not amount to a regulation of interstate commerce. The principle on this subject has been often stated by this court, and, indeed, has been quite recently so fully reviewed and applied that further elaboration becomes unnecessary. In the case of Chicago &c. Railway Co. v. Solan, 169 U. S. 133, 137, 138, it was said: “ They are not in themselves regulations of interstate commerce, although they control in some degree the conduct and liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the State to regulate the relative rights and duties of all persons and corporations within its limits. “ Such are the grounds upon which it has been held to be within the power of the State to require the engineers and. other persons engaged in the driving or management of all railroad trains passing through the State to submit to an 316 OCTOBER TERM, 1897. Syllabus. examination by a local board as to their fitness for their positions, or to prescribe the mode of heating passenger cars in such trains. Smith v. Alabama, 124 U. S. 465 ; Nashville &c. Railway v. Alabama, 128 U. S. 96; New York, New Haven & Hartford Railroad v. New York, 165 U. S. 628. See also Western Union Telegraph Co. v. James, 162 U. S. 650; Hen-nington v. Georgia, 163 U. S. 299; Gladson v. Minnesota, 166 U. S. 427.” These views dispose of the substantial questions which the case presents, for the contention which arises on the concluding sentences of the statute, imposing upon a carrier a duty where the loss has not happened on the carrier’s own line to inform the shipper of this fact, is but a regulation manifestly within the power of the State to adopt. Affirmed. UNITED STATES v. GARLINGER. APPEAL FROM THE COURT OF CLAIMS. No. 166. Argued January 4, 5, 1898. —Decided February 21, 1898. Article 420 of the Treasury Regulations, providing that night watchmen shall be divided into two watches as nearly as possible, both watches to perform duty every night, and empowering the surveyor of the port to make such changes in the division of the watches as he may deem expedient, and to appoint the hours of duty for different watches; and that when it is necessary to assign a night watchman to a vessel, or to any other all night charge, the night watchman so assigned must remain on the vessel or on his charge until relieved, and will be excused from performing duty the following night, does not authorize the payment of an extra day’s work to a night watchman so employed during the whole night, and again put upon duty in the following night. It is not possible for the Secretary of the Treasury, by passing regulations, to divide a day’s service into parts, and to attach to each part the pay for a full day’s work. Where payments for work done in Government employ are made frequently and through a considerable period of time, and are received without objection or protest, and where there is no pretence of fraud or of circumstances constituting duress, it is legitimate to infer that such pay- UNITED STATES v. GABLINGER. 317 Statement of the Case. ments were made and received on the understanding of both parties that they were made in full ; and such a presumption is much strengthened if the employé waits two years after the expiration of his service before making any demand for further compensation. This was an action brought by Dixon N. Garlinger, in the Court of Claims, against the United States, wherein he sought to recover for alleged extra service rendered by him while in the employ of the United States. The trial court found the facts to be as follows : I. The claimant, a citizen of the United States, was appointed, by the collector of the port of Baltimore, a night inspector in the customs service at Baltimore in 1882. He took the oath of office and entered upon the discharge of the duties of night inspector of customs on April 1, 1882, and continued in office until August 25, 1886, a period of 1608 days. II. During the above-named period the claimant was paid for 1608 days, of which 1353 payments were for night service when he was present rendering actual service, and 255 were for night service when he was absent and off duty. III. During the 1353 days of night service the claimant was required to perform duty as night inspector from sunset to sunrise and until relieved by the day inspector, the length of the night service consequently varying, and sometimes extending from 5 p.m. of one day until 10 a.m. of the succeeding day. During this time the claimant was not allowed to be off duty on the succeeding night, after having been on duty two watches, except in the 255 instances set forth in Finding II, when he was off duty and received pay. That is to say, he performed the duties of both the first and second watch on 1098 nights without additional compensation and without being allowed to be off duty on any alternate night. IV. The petition not having been filed until August 24,1888, 144 days of the number last above stated, are barred by the statute of limitations, leaving 954 days as the subject of the present suit. V. The claimant objected to his superior officer, the sur-veyor of the port, against his being required to perform the duties of both watches in one night without being excused 318 OCTOBER TERM, 1897. Statement of the Case. from the performance of duty on the following night, and he subsequently remonstrated at various times. VI. At the time of his entering the service as night inspector he was furnished by his superior officers with a copy of the regulations promulgated by the Secretary of the Treasury for his governance and defining his duties. It was customary for the surveyor of the port to furnish such regulations to inspectors and others at the time of their entering the customs service. The regulations hereinafter quoted were among those so given to the claimant. VII. The laws and regulations for the government of officers of customs under the superintendence and direction of surveyor of ports, 1877, were issued by the Secretary of the Treasury to the custom-house authorities of all ports, including the port of Baltimore, and were in operation in all of the principal ports, except Baltimore, in which the practice of the port at the time of the claimant’s appointment was not, and had not been, in accordance with the requirement of the regulations making two night watches and relieving the first watch at midnight. There the surveyor of the port had always required the night inspectors to serve from sunset to sunrise. VIII. The following are among the regulations given to the claimant when he entered the service, above referred to: “ Art. 420. The night watchmen shall be divided into two watches, as nearly equal as possible, both watches to perform duty every night. The surveyor of the port will, however, make such changes in the division of the watches as he may deem expedient, and will appoint the hours of duty for the different watches. “ Whenever it is necessary to assign a night watchman to a vessel, or to any other ‘ all-night ’ charge, the night watchman so assigned must remain on the vessel, or on his charge, until relieved, and he will be excused from performing any duty the following night. “Night watchmen must not quit their charge on being relieved without making their presence personally known to UNITED STATES v. GARLINGER. 319 Opinion of the Court. the officer relieving them. Night watchmen, when on duty, must wear their official badge.” Upon the foregoing findings of fact, the court decided, as a conclusion of law, that the claimant was entitled to recover $2862. Mr. George Hines Gorman for appellants. Mr. Assistant Attorney General Pradt was on his brief. Mr. F. P. Dewees and Mr. L. T. Michener for appellee. Mr. IF. IK. Dudley and Mr. R. R. MacMahon were on their brief. Mr. Justice Shiras delivered the opinion of the court. Dixon N. Garlinger, the plaintiff in the court below, was employed by the collector of the port of Baltimore, as a night inspector in the customs service, from April 1, 1882, till August 25, 1886. For his services he was entitled to be paid three dollars per day for each day’s work actually performed; and it is a conceded fact that he was so paid for each and every day he was in the service. Two years after he ceased to be so employed he brought this action, claiming to recover additional compensation, and recovered a judgment for the sum of $2862. The plaintiff based his claim for additional pay upon two grounds, viz., that by the Laws and Regulations for the Government of Officers of Customs under the superintendence and ,direction of Surveyors of Ports, issued in 1877 by the Secretary of the Treasury, it was, among other things, provided as follows: “ The night watchmen shall be divided into two watches, as nearly equal as possible, both watches to perform duty every night. The surveyor of the port will, however, make such changes in the division of the watches as he may deem expedient, and will appoint the hours of duty for the different watches. Whenever it is necessary to assign a night watchman to a vessel, or to any other ‘ all-night ’ charge, the nignt watchman so assigned must remain on the vessel, or 320 OCTOBER TERM, 1897. Opinion of the Court. on his charge, until relieved, and he will be excused from performing any duty the following night;” and that, in disregard of this regulation, and of his objections and remonstrances, he was required to perform the duties of both watches in some nights, without being excused from the performance of duty on the following nights. It is contended that, from these facts, the law will imply a contract between the claimant and the United States, whereby the former will be entitled to be paid for both watches, as if they constituted two days’ service. On the part of the United States it is claimed that the regulation quoted did not constitute an express contract of employment between the parties ; that the facts negative any notion of an implied promise to pay any additional sum beyond the statutory rate of three dollars per day; that, even if a breach of contract were shown, no recovery could be had beyond the sum already paid; that there is no obligation on the United States because such a regulation, if it is to receive the construction placed upon it by the court below, is in conflict with the law, and, therefore, null and void; that the construction placed upon the regulation by the court is erroneous ; that the regulations of 1877 were repealed and ceased to be in force at any time after March 24, 1883, by reason of subsequent regulations, which should have been applied by the court below. Section 2733 of the Revised Statutes, under the authority of which the claimant was employed, was as follows: “ Each inspector shall receive, for every day he shall be actually employed in aid of the customs, three dollars; and for every other person that the collector may find it necessary or expedient to employ, as occasional inspector, or in any other way in aid of the revenue, a like sum, when actually so employed, not exceeding three dollars for every day so employed.” Section 1764 of the Revised Statutes provides that “No allowance or compensation shall be made ... for any extra service whatever which any officer or clerk may be required to perform, unless expressly authorized by law; UNITED STATES v. GABLINGEB. 321 Opinion of the Court. and section 1765, that “ No officer in any branch of the public service or any other person whose salary, pay or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance or compensation in any form whatever from the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states it is for such additional pay, extra allowance or compensation.” Of these provisions, while they were part of the act of August 23, 1842, c. 183, 5 Stat. 508, and before they were carried into the Revised Statutes, it was said by this court, in Hoyt v. United States, 10 How. 108, 141 : “ It [this statute] cuts up by the roots those claims by public officers for extra compensation, on the ground of extra services. There , is no discretion left in any officer or tribunal to make the allowance, unless it is authorized by some law of Congress. The prohibition is general, and applies to all public officers, or quasi public officers, who have a fixed compensation.” Many cases to the same effect, construing these provisions, are collected in United States v. King, 147 U. S. 676, and in MuUettis Administratrix v. United States, 150 U. S. 566, 570, where it was said that, “ obviously, the purpose of Congress, as disclosed by these sections, was that every officer or regular employé of the government should be limited in his compensation to such salary or fees as were by law specifically attached to his office or employment. 4 Extras,’ which are such a fruitful subject of disputes in private contracts, were to be eliminated from the public service.” We are unable to accept the contention that it was competent for the Secretary of the Treasury, by passing regulations, dividing a day’s service into parts, to attach to each part the pay for a full day’s work. By the word 44 day ” in section 2733, Congress evidently meant the calendar day; and the purpose of Congress in prescribing the pay of three dollars for every day, and in forbidding any allowance or compensation for extra services, would be defeated if the regulation in question were to be construed as providing that a period of twenty-four hours might be so divided as to justify two or more payments, VOL. CLXIX—21 322 OCTOBER TERM, 1897. Opinion of the Court. to the same person, of the amount fixed for the daily compensation. Nor do we think that such a construction can be properly given to the regulation in question. Nothing is said therein of double pay in case the officer serves both watches. In such a case, the provision is that he will be excused from performing any duty the following night. This express provision negatives the inference that if he serves an all-night watch he will be entitled to double pay, and it certainly does not afford a ground on which to base an implied contract for full pay for both watches. United States v. Martin, 94 U. S. 400, does not help this claimant’s case, for there the court was construing a statute of Congress declaring that eight hours should constitute a day’s work for all laborers, workmen and mechanics. Rev. Stat, sect 3738. It is not pretended that the present claimant falls within the provisions of that statute. He stands only on the regulation already quoted, and which must be interpreted in such a way as to consist with the statutes mentioned. It is not found that the claimant himself ever demanded, during the period of his service, the compensation he now seeks. What he complained of was that, after he had performed an all-night service, he was not excused from duty the following night. He was not employed for any specific period, and was at liberty to quit the service if he thought the duties too onerous. He, however, elected to remain during the period above mentioned, and to receive the compensation awarded him by the collector, without any protest as to its insufficiency. It may be fairly presumed that the collector, in paying, and the claimant, in accepting, the money paid, supposed that the payments were in full. Such a course of conduct, we think, brings this claimant within the principle of well-settled cases, that the receipt of payment, purporting to be in full, where there is no fraud or coercion, cannot afterwards be repudiated as insufficient. Baker N.Nachtrieb, 19 How. 126 ; United States v. Child, 12 Wall. 232; De Arnaud n. United States, 151 IT. S. 483. Such a principle is especially applicable to the transactions of the government, whose expenditures are met by legislative PAYNE v. ROBERTSON. 323 Statement of the Case. appropriations. We do not want to be understood as saying that the mere fact of receiving money in payment will estop a creditor. But where, as in this ease, the payments were made frequently, through a considerable period of time, and were received without objection or protest, and where there is no pretence of fraud, or of circumstances constituting duress, it is legitimate to infer that such payments were made and received on the understanding of both parties that they were in full. Such a presumption is very much strengthened by the lapse of two years before the appellee thought fit to make any demand. These views sufficiently dispose of the case, and render it unnecessary to consider the other contentions urged on behalf of the government. The decree of the Court of Claims is reversed, and the cause is remanded to that court with directions to dismiss the claimants petition. PAYNE v. ROBERTSON. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA. No. 20. Submitted January 17, 1898. — Decided February 28,1898. A deputy marshal of the United States, duly appointed as such prior to the passage of the act of March 2,1889, c. 412, providing for the opening of the Territory of Oklahoma to settlement, and prior to the proclamation of the President of March 23, 1889, fixing the time of the opening of the-lands for settlement, and who entered on said lands and remained there in his official character prior to the day fixed for said opening, was thereby disqualified from making a homestead entry immediately upon the lands being opened for settlement. Payne, the appellant here, filed his bill of complaint in the District Court for the county of Logan and Territory of Oklahoma, First Judicial District, against the present appellees. It was averred in the bill that prior to the passage of the act of Congress of March 2, 1889, providing for opening the Oklahoma lands for settlement, the complainant had been 324 OCTOBER TERM, 1897. Statement of the Case. duly appointed and qualified as a deputy marshal of the United States, and that after the proclamation of the President, on March 23, 1889, declaring that said lands would be open to settlement after noon of the 22d of April, 1889, complainant, in pursuance of orders of his superior officer, the marshal of the United States for the District of Kansas, went into the Territory, to the locality where the United States land office at Guthrie was located, for the purpose of preserving public order. That being rightfully in said Territory and possessed of all the qualifications required by the act of Congress to authorize an entry of lands in such Territory for the purpose of a homestead, complainant, after twelve o’clock noon of said April 22, 1889, settled upon a named quarter section of land, at once commenced digging a well thereon, and claimed the same as his homestead, and that on the next day he duly entered said tract of land at the United States land office in Guthrie, paid the necessary charges and expenses connected with such entry, and thereafter fully complied with all other requirements of the homestead law. Though the bill averred that at the time of his going into the Territory to perform the duties of deputy marshal, complainant “ had formed no purpose or intention in regard to selecting and taking a homestead when said lands should be duly opened to settlement,” nevertheless it was averred elsewhere in the bill, that in reliance on certain opinions and assurances of the Commissioner of the General Land Office and the Secretary of the Interior, claimed to have been communicated to parties similarly situated as was the complainant, to the effect that persons so situated were not disqualified from entering a homestead when the lands became opened to settlement, complainant remained in the Territory and made the settlement in question. It was further averred that, subsequent to such entry and settlement, the defendant Fitzgerald went upon and claimed said tract of land as a homestead, and that other parties, by force and against the notice and warning of the complainant, proceeded to stake off and occupy a large portion thereof as a townsite in violation of law and of the prior superior homestead rights of the complainant. It was also averred PAYNE v. ROBERTSON. 325 Opinion of the Court. that on May 9, 1889, the townsite claimants instituted proceedings in the United States land office at Guthrie, Oklahoma, to obtain a cancellation of the homestead entry of complainant and that ultimately such entry was cancelled, the Secretary of the Interior approving the action of the Commissioner of the General Land Office in ordering such cancellation, on the ground that complainant was disqualified by his presence in the Territory prior to the time fixed in the proclamation of the President, from making the entry. It was further averred that subsequently the Secretary of the Interior, in pursuance of the provision of the act of May 14, 1890, c. 207, appointed the defendants Robertson, Foster and Schnell to prove up and enter the tract of land claimed for a townsite, in trust for the inhabitants of a town to be called East Guthrie, and that after final entry by such trustees a patent of the United States was duly issued to them, which it was claimed vested in said defendants the legal title to the land covered by the patent. In conclusion, complainant averred that he had done all things required by law in order to be entitled to a final patent, and that he was the equitable owner of the land claimed by him; that the Secretary of the Interior had misapplied and misconstrued the law in cancelling the entry of complainant ; and he prayed that the townsite trustees might be divested of the legal title to the tract in question and it be vested in complainant. The bill was demurred to upon various grounds, and the demurrer being sustained a decree was thereupon entered dismissing the bill. On appeal, this decree was affirmed by the Supreme Court of the Territory, and from the decree of affirmance an appeal was taken to this court. Mr. Henry H. Copp, Mr. S. D. Luckett, Mr. John W. Daniel and Mr. Amos Green for appellant. Mr. Solicitor General, Mr. Horace Speed and Mr. Bayard T. Hayner for appellees. Mr. Justice White, after stating the case as above reported, delivered the opinion of the court. 326 OCTOBER TERM, 1897. Opinion of the Court. In sustaining the demurrer the lower courts passed upon but one of the grounds stated therein, namely, that which asserted that the complaint did not set forth a cause of action. This contention went to the merits of the case and called for a decision of the question whether the Secretary of the Interior, upon the facts found by him, properly held that Payne was disqualified from making his alleged entry. As this is the pivotal point in the case and its decision is free from difficulty, we shall confine ourselves, in this opinion, to its consideration. The ruling of the Secretary of the Interior that the settlement made by complainant was invalid is averred in the bill to have been based upon the following finding of facts: “ Ransom Payne made homestead entry for the N. W. | of section nine (9) on April 23, 1889. Said Ransom Payne was a United States deputy marshal, duly appointed prior to the passage of the act of March 2, 1889, (16 C. L. O. 10,11,) providing for the opening of the Territory of Oklahoma to settlement, and prior to the proclamation of the President fixing the day for said opening, and he entered said Territory prior to April 22, and was there at noon of that day in obedience to orders issued by his superior officer, and he was there in the discharge of his official duties. Immediately after 12 o’clock noon of April 22 he went. upon the land in question and commenced to dig a hole in the ground for a well, and as soon as practicable appeared at the local office and made his entry. So far as his age, citizenship, etc., are concerned he was a qualified homestead claimant, and he bases his claim upon his prior settlement.” The statute which it is claimed was misconstrued and misapplied by the Secretary of the Interior in his decision sustaining the cancellation of Payne’s entry, is that portion of section 13 of the Indian appropriation act approved March 2, 1889, c. 412, 25 Stat. 980, 1004, which, after stipulating for the disposal of lands acquired from the Seminole Indians to actual settlers under the homestead laws only, except as therein otherwise provided, declared that “ until said lands are opened for settlement by proclamation of the President, no person PAYNE v. ROBERTSON. 327 Opinion of the Court. shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto.” It was also claimed that the Secretary misconstrued and misapplied the proclamation of the President of date March 23,1889, 26 Stat. 1544, fixing the time for the opening of the lands for settlement, particularly that portion which reads as follows : “Now, therefore, I, Benjamin Harrison, President of the United States, by virtue of the power in me vested by said act of Congress, approved March second, eighteen hundred and eighty-nine, aforesaid, do hereby declare and make known, that so much of the lands, as aforesaid, acquired from or conveyed by the Muscogee (or Creek) Nation of Indians, and from or by the Seminole Nation of Indians, respectively, as is contained within the following-described boundaries, viz. : . . . “ Will, at and after the hour of twelve o’clock, noon, of the twenty-second day of April, next, and not before, be open for settlement, under the terms of, and subject to, all the conditions, limitations and restrictions contained in said act of Congress, approved March second, eighteen hundred and eighty-nine, and the laws of the United States applicable thereto. . . . “Warning is hereby again expressly given, that no person entering upon and occupying said lands before said hour of twelve o’clock, noon, of the twenty-second day of April, a.d. eighteen hundred and eighty-nine, hereinbefore fixed, will ever be permitted to enter any of said lands or acquire any rights thereto ; and that the officers of the United States will be required to strictly enforce the provision of the act of Congress to the above effect.” The question presented is, therefore, solely this: Was the complainant disqualified by reason of his entry into the Territory and his presence there at the hour of the opening of the Territory for settlement, under the circumstances stated in the finding of the Secretary, from making a homestead entry immediately upon the lands being opened for settlement ? This question is governed by the case of Smith v. Townsend, 148 U. S. 490. The point there presented was whether a 328 OCTOBER TERM, 1897. Opinion of the Court. railroad section hand, residing with his family on a railroad right of way within the Territory, and who by reason of his employment and residence was present therein at the hour of noon on April 22, 1889, could immediately thereafter legally enter upon public land adjoining said right of way and claim the same as a homestead. A construction was rendered necessary of the second section of the act of March 1, 1889, c. 317, 25 Stat. 757, 759, ratifying and confirming an agreement with the Muscogee (or Creek) Indians, whereby a large body of their lands, subsequently included in the Territory of Oklahoma, had been ceded to the United States. The section referred to declared the ceded land to be part of the public domain and subject to homestead entry. The concluding sentence of the section read as follows: 11 Any person who may enter upon any part of said lands in said agreement mentioned prior to the time that the same are opened to settlement by act of Congress shall not be permitted to occupy or to make entry of such lands or lay any claim thereto.” A construction was also required of the substantially similar provision contained in the act of March 2, 1889, heretofore quoted, and of the “warning” notice contained in the proclamation of March 23, 1889, which we have also heretofore referred to. To aid in construing these provisions resort was had to the history of the times, in order to ascertain the reason of the statutes as well as their meaning, and the conclusion was deduced (p. 496) that the purpose of the legislative provisions referred to was “ to secure equality between all who desired to establish settlements in that Territory. The language is general and comprehensive: ‘ Any person who may enter upon any part of said lands . . . prior to the time that the same are opened to settlement . . • shall not be permitted to occupy or to make entry of such lands or lay any claim thereto.’ ‘Until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands, or acquire any right thereto.’ No excep- PAYNE v. ROBERTSON. 329 Opinion of the Court. tion is made from the general language of these provisions; and it was evidently the expectation of Congress that they would be enforced in the spirit of equality suggested by the generality of the language.” And, again, at page 500, the court observed: “ The evident intent of Congress was, by this legislation, to put a wall around this entire Territory, and disqualify from the right to acquire, under the homestead laws, any tract within its limits, every one who was not outside of that wall on April 22. When the hour came the wall was thrown down, and it was a race between all outside for the various tracts they might desire to take to themselves as homesteads.” Subsequently, conceding that Smith, the appellant in the case, was lawfully on the right of way of the railroad company, and that he possessed all the qualifications prescribed by the general homestead law, it was said (p. 500 ): “He did not have the qualifications prescribed by this statute; and there is nothing to prevent Congress, when it opens a particular tract for occupation, from placing additional qualifications on those who shall be permitted to take any portion thereof. That is what Congress did in this case. It must be presumed to have known the fact that on this right of way were many persons properly and legally there; it must also have known that many other persons were rightfully in the Territory —Indian agents, deputy 'marshals, mail carriers, and many others; and, if it intended that these parties, thus rightfully within the Territory on the day named, should have special advantage in the entry of tracts they desired for occupancy, it would have been very easy to have said so. The general language used in these sections indicates that it was the intent to make the disqualifications universally absolute. It does not say ‘ any person who may wrongf ully enter,’ etc., but ‘any person who may enter’ — ‘rightfully or wrongfully’ is implied. There are special reasons why it must be believed that Congress intended no relaxation of these disqualifications on the part of those on the company’s right of way, for it is obvious that, when a railroad runs through unoccupied territory like Oklahoma, which on a given day is opened for settle- 330 OCTOBER TERM, 1897. Opinion of the Court. ment, numbers of settlers will immediately pour into it and large cities will shortly grow up along the line of the road ; and it cannot be believed that Congress intended that they who were on this right of way in the employ of the railroad company should have a special advantage of selecting tracts, just outside that right of way, and which would doubtless soon become the sites of towns and cities.” And in concluding its opinion the court held that “ one who was within the territorial limits at the hour of noon of April 22 was, within both the letter and spirit of the statute, disqualified to take a homestead therein.” The reasoning of the opinion to which we have referred is fully applicable to the facts of the case under review ; indeed, the very character of case now presented was referred to in illustration. In accordance with the views there expressed, we must, therefore, hold that as the appellant was within the Territory just prior to, and at the moment of, time when the land first became legally open to settlement, he was disqualified at that time from entering upon and claiming lands therein as a homestead. Manifestly, Congress did not intend that one authorized to enter the Territory in advance of the general public, solely to perform services therein as an employé of the Government, should be at liberty, immediately on the arrival of the hour for opening the Territory to settlement, to assume the status of a private individual and “actual settler,” and make selection of a homestead, thus clearly securing an advantage in selection over those who, obedient to the command of the President, remained without the boundaries until the time had arrived when they might lawfully enter. Affirmed. UNITED STATES v. EATON. 331 Statement of the Case. UNITED STATES v. EATON. APPEAL FROM THE COURT OF CLAIMS. No. 1T4. Submitted January 4,1898. — Decided February 28,1898. Congress has power, under the Constitution, to vest in the President authority to appoint a subordinate officer, called a vice-consul, to be temporarily charged with the duty of performing the functions of the consular office. Thé Revised Statutes confer upon the President full power, in his discretion, to appoint vice-consuls, and fix their compensation, to be paid out of the allowance made by law for the principal consular officer in whose place such appointment shall be made. ,The facts that the minister resident and consul-general at Siam had obtained a leave of absence from the President, and was ill and unable to discharge his duties, and that the vice-consul previously appointed had not qualified, and was absent from Siam, created a temporary vacancy and justified an emergency appointment to fill it. The accounting officers of the Government did not err in treating the salary fixed by law for the joint service of minister resident and consul-general at Siam as indivisible. There was no error in allowing Eaton compensation for a period during which he performed the duties of the office before his official bond was received and approved. A consular officer must account to the Government for fees received by him for administering upon the estates of citizens of the United States, dying within the limits of his jurisdiction. In October, 1890, Sempronius H. Boyd was commissioned as minister resident and consul-general of the United States to Siam; he qualified and proceeded to his post, and was in June, 1892, engaged in the discharge of his official duties. At that time, being seriously ill, Boyd was granted by the President a leave of absence. Before leaving Bangkok, Siam, Boyd, to quote from the findings of fact, “ believing his illness would terminate fatally, and being desirous to protect the interests of the Government during his absence and until the then expected arrival from the United States of Robert M. Boyd, whom Sempronius Boyd desired should act as consul-general, the latter called to his aid Lewis A. Eaton (now a plaintiff herein, who was then a missionary at Bangkok) and asked him 332 OCTOBER TERM, 1897. Statement of the Case. to take charge of the consulate and its archives. Thereupon the following letter, dated June 21, 1892, was written by Boyd : “ U. S. Legation and Consulate-General, “ Bangkok, June 21, 1892. “ Krom Luang Devawongsee Varoprokan, “ Minister for Foreign Affairs : “Monsieur le Ministre: It is with exceeding regret to me to be forced to abandon my diplomatic and consular duties at the court of His Majesty, with the enjoyment, pleasure, comfort and genuine friendship so marked and distinguished, which the representative of the United States fully appreciated and imparted to his Government. “ All the physicians advise me to go soon to a cold climate. The President has wired me to that effect. In 20 or 30 days I may be strong enough for a sea voyage, of which I will avail myself. I am authorized to designate and do designate L. A. Eaton vice-consul-general until I am able to assume. If not incompatible with public affairs, I beg you to so regard him. “ Monsieur le Ministre, I am too weak and feeble to call in person, which I would so much like to have done, and expressed my thanks and that of my Government to the foreign office and attachés. “With assurance of my high consideration, I have the honor to be, Monsieur le Ministre, your obedient servant.” Boyd thereupon administered to Eaton an oath to faithfully discharge the duties of the office of vice-consul-general, etc. The findings state that Boyd believed he had authority for this action. Robert M. Boyd, who is referred to above, was then in the United States, and, although appointed as vice-consul, had not qualified. Sempronius H. Boyd remained in Siam until the 12th day of July, 1892, when he left for the United States, and on his departure he turned over to Eaton, as the representative of the Government of the United States, all the archives and property of the legation. Boyd arrived at his home, in the State of Missouri, on August 27, 1892, and although his leave of absence expired October 26, 1892, he did UNITED STATES v. EATON. 333 Statement of the Case. not, on account of illness, return to his post, but remained at his home, where he died June 22, 1894. Eaton, on the departure of Boyd, was the sole person “ in charge of the interests of the Government at Bangkok, and performed whatever duties were required there of either a minister resident or a consul-general, with the knowledge of the Department of State and with that department’s approval. The department acknowledged his communications and acted upon them as communications from a person authorized to perform the duties of minister resident and consul-general in the emergency then existing.” On “ September 2, 1892, Eaton executed (under instructions from the Department of State) an official bond, calling himself acting consul-general of the United States at Bangkok; this was received at the Department of State and was approved January 3,1893; subsequently, under instructions from the Department of State, dated January 24, 1893, he executed another bond as vice-consul-general of the United States at Bangkok, which was approved by the Secretary of State April 23, 1893. Both of these bonds bore date June 13, 1892, with the knowledge and consent of Eaton’s sureties thereon, and were so dated because of a pencil memorandum on each bond when received in blank by Eaton from the Department of State, directing him to insert the date of his appointment in the blank space reserved for the date.” On November 2, 1892, the Secretary of State wrote Eaton, enclosing him.the commission of Robert Boyd, which had been issued in 1891, as vice-consul at Siam. In February, 1893, Robert Boyd appeared in Siam, and, in accordance with the instructions of the Secretary of State, Eaton introduced him as vice-consul, and on May 18 he qualified, when Eaton’s performance of the duties of the office ceased. The findings below say: “ Eaton rendered to the accounting officers of the Treasury his account for salary for the entire period of his service, in which he charged and claimed one half of the salary of $5000 per annum appropriated for said post of minister resident and consul-general, from July 12, 1892, to October 26, 1892; that is, from the departure of the minister to and including the 334 OCTOBER TERM, 1897. Statement of the Case. date on which the leave of absence for sixty days (excluding transit time) expired, and the full salary at the rate of $5000 per annum from October 27, 1892, to May 17, 1893, inclusive. “ Eaton also rendered with his salary account a return of all fees collected during the entire period of his service, both fees official and unofficial, including fees notarial and fees and fines received in the United States consular court at Bangkok, amounting in all to $245.41. “Eaton also rendered to the Department of State his account of disbursements from the contingent fund of the legation and consulate-general from July 1, 1892, to April 30, 1893, which was there approved. “In the settlement of said accounts by the accounting officers of the Treasury the sum of $5.73, expended by Eaton for candles and lanterns, was suspended for information, which was thereafter furnished, but said sum remains disallowed and unpaid. “ In the settlement of Eaton’s salary accounts by the Treasury the total amount of fees received, to wit, $245.41, was charged to him and covered into the Treasury. The one half salary from July 12, 1892, to October 26, 1892, amounting to $726.90, was suspended for ‘ further information,’ which was thereafter furnished ; but this sum remains unpaid. The full salary from October 27, 1892, to May 17, 1893, amounting to $2792.35, as approved by the Department of State, was allowed and credited. Deducting from this $245 leaves in Eaton’s favor a balance of $2546.94, which was certified to his credit by the First Comptroller December 4, 1893, no part of which has been paid.” It is inferable from the facts found that the amount of compensation which the accounting officers of the Government settled and allowed in favor of Eaton, as above stated, was withheld from him because of a claim advanced by Sempronius H. Boyd to the entire salary as minister resident and consul-general during a part of the time for which a portion of or the whole of the salary had been allowed Eaton. Indeed, on the 16th of June, 1894, Sempronius H. Boyd sued in the court below to recover his full salary as minister resident and consul- UNITED STATES v. EATON. 335 Opinion of the Court. general from July, 1892, to February 11, 1893. Thereupon in December, 1894, Eaton commenced his action to recover the sums embraced in the following items: A. For notarial or unofficial fees charged to him in the settlement of his salary account by report No. 162,708, as aforesaid, as per Exhibit C here- with............................................... $177 41 B. For the item of salary suspended in the settlement of his accounts for salary by report No. 162,708, as aforesaid............................... 726 90 C. For the balance of salary found due to claimant by report No. 162,708, as aforesaid, and certified to his credit................................. 2546 94 D. For item expended for contingent expenses by claimant, and suspended in the settlement of his account therefor by report No. 162,709, as aforesaid............................................ 5 73 $3456 98 The court below consolidated the two cases, and on its finding the facts above recited, rejected the claim of Sempronius H. Boyd, his widow having been substituted as a party plaintiff on his death, and allowed the full amount of the claim sued for by Eaton. From this judgment the United States alone appeals. Mr. Assistant Attorney General Pradt and Mr. Charles IF. Russell for appellants. Mr. John C. Chaney and Mr. John R. Garrison for appellee. Mr. Justice White, after making the foregoing statement of the case, delivered the opinion of the court. The errors relied upon to obtain a reversal rest on three contentions: 1st. That the appointment of Eaton as acting 336 OCTOBER TERM, 1897. Opinion of the Court. vice-consul was without warrant of law, and hence not susceptible of ratification by the State Department. 2d. Even if the appointment was authorized by law, the statute conferring the power was in violation of the Constitution of the United States. 3d. Because, even conceding the appointment to have been valid, the court allowed a sum in excess of the amount which the claimant was legally entitled to recover. We will dispose of these contentions in the order stated. In the third paragraph of section 1674, Revised Statutes, the following definition is found : “ Vice-consuls and vicecommercial agents shall be deemed to denote consular officers, who shall be substituted, temporarily, to fill the places of consuls-general, consuls or commercial agents, when they shall be temporarily absent or relieved from duty.” And this definition by Congress of the nature of a vice-consulship was not changed by the amendment to section 4130 of the Revised Statutes by the act of February 1, 1876, c. 6, 19 Stat. 2, as the obvious purpose of that act was simply to provide that where the words “ minister,” “consul” or “consul-general” were generally used, they should be taken also as embracing the subordinate officers who were to represent the principals in case of absence. In other words, that where a delegation of authority was made to the incumbent of the office, the fact that the name of the principal alone was mentioned should not be considered as excluding the power to exercise such authority by the subordinate and temporary officer, when the lawful occasion for the performance of the duty by him arose. Provision for the appointment and the pay of vice-consuls are found in the following sections of the Revised Statutes : “ Sec. 1695. The President is authorized to define the extent of country to be embraced within any consulate or commercial agency, and to provide for the appointment of vice-consuls, vice-commercial agents, deputy consuls and consular agents, therein, in such manner and under such regulations as he shall deem proper ; but no compensation shall be allowed for the services of any such vice-consul, or vice-commercial agent, beyond nor except out of the allowance made by law for the principal consular officer in whose place such appointment UNITED STATES v. EATON. 337 Opinion of the Court. shall be made. No vice-consul, vice-commercial agent, deputy-consul or consular agent, shall be appointed otherwise than under such regulations as have been or may be prescribed by the President.” “Sec. 1703. Every vice-consul and vice-commercial agent shall be entitled, as compensation for his services as such, to the whole or so much of the compensation of the principal consular officer in whose place he shall be appointed, as shall be determined by the President, and the residue, if any, shall be paid to such principal consular officer ; . . .” The Consular Regulations, promulgated with the approval of the President, contain the rules adopted in execution of the powers expressed in the above provisions. When the appointment in controversy took place, the regulations of 1888 were in force, and in sections 36, 87 and 471 thereof were found the rules governing the appointments of vice-consuls and temporary vice-consuls and the manner of their payment. These sections are as follows : “36. Vice-consuls-general, deputy consuls-general, vice-consuls, deputy consuls, vice-commercial agents, deputy commercial agents and consular agents are appointed by the Secretary of State, usually upon the nomination of the principal consular officer, approved by the consul-general (if the nomination relates to a consulate or commercial agency), or if there be no consul-general, then by the diplomatic representative. If there be no consul-general or diplomatic representative, the nomination should be transmitted directly to the Department of State, as should also the nomination for subordinate officers in Mexico, British India, Manitoba and British Columbia. The nomination for vice-consul-general and deputy consul-general must be submitted to the diplomatic representative for approval, if there be one resident in the country. The privilege of making the nomination for the foregoing subordinate officers must not be construed to limit the authority of the Secretary of State, as provided by law, to appoint these officers without such previous nomination by the prin-cipal officer. The statutory power in this respect is reserved, and it will be exercised in all cases in which the VOL. CLXIX—22 338 OCTOBER TERM, 1897. Opinion of the Court. interests of the service or other public reasons may be deemed to require it.” “ 87. In case a vacancy occurs in the offices both of consul and vice-consul, which requires the appointment of a person to perform temporarily the duties of the consulate, the diplomatic representative has authority to make such appointment, with the consent of the foreign government and in conformity to law and these regulations, immediate notice being given to the Department of State. In those countries, however, where there are consuls-general, to whom the nominations of subordinate officers are required to be submitted for approval, the authority to make such temporary appointments is lodged with them. Immediate notice should be given to the diplomatic representative of the proposed appointment, and, if it can be done within a reasonable time, he should be consulted before the appointment is made. If such a vacancy should occur in a consulate general, the temporary appointment will be made by the diplomatic representative.” “471. The compensation of a vice-consul-general, vice-consul, or a vice-commercial agent is provided for only from that of the principal officer. The rules in respect to his compensation are as follows, viz.: “ 1. In case the principal officer is absent on leave for sixty days or less, in any one calendar year, and does not visit the United States, the vice-consular officer acting in his place is entitled to one half of the compensation of the office from the date of assuming its duties, unless there is an agreement for a different rate, the principal officer receiving the remainder. But after the expiration of the sixty days, or after the expiration of the principal’s leave of absence (if less than sixty days), the vice-consular officer is entitled to the full compensation of the office. “2. If the principal visits the United States on such leave and returns to his post, the foregoing rule will include the time of transit both from and to his post, as explained in paragraph 460. But if the principal does not return to his post, either because of resignation or otherwise, the rule will embrace only the time of absence, not exceeding sixty days, UNITED STATES v. EATON. 339 Opinion of the Court. together with the time of transit from his post to his residence in the United States.” It is plain that the above sections of the Revised Statutes confer upon the President full power, in his discretion, to appoint vice-consuls and fix their compensation ; that they forbid any appointment, except in accordance with the regulations adopted by the President, with a limitation, however, that the compensation of these officers, if appointed, should be solely “ out of the allowance made by law for the principal consular officer in whose place such appointment shall be made.” The regulations just quoted come clearly within the power thus delegated. The legality of the appointment in question is then first to be determined by ascertaining whether it was authorized by the regulations. Before analyzing the text of the regulations their general purpose must be borne in mind. The first section referred to, (36,) lodges the power in the Secretary, of State in all cases to appoint a vice-consul or vice-consul-general. The manifest object of the provision was to prevent the continued performance of consular duties from being interrupted by any temporary cause, such as absence, sickness or even during an interregnum caused by death and before an incumbent could be appointed. This was secured by the designation in advance of a subordinate and temporary official who, in the event of the happening of the foregoing conditions, wTould be present to discharge the duties. Section 87 provided for a condition of affairs not embraced in section 36, that is, for the case where there would arise a temporary inability to perform duty on the part of both the consul and vice-consul. The two provisions together secure an unbroken performance of consular duties by creating the necessary machinery to have within reach one qualified to perform them, free from any vicissitude which might befall either the regular incumbent of the office of consul or the vice appointee. In view of the recognition of Eaton by the State Department and the express approval of his bond as vice-consul, it would result that, at least from the date of the official action of the Secretary of State, he would be entitled to be treated 340 OCTOBER TERM, 1897. Opinion of the Court. as appointed by that officer under section 36. But as the sum of the salary allowed by the court below antedated the approval of the bond, we pretermit this question, and come to consider whether Eaton’s designation was within the regulation for emergency appointments provided in section 87. The first requisite for calling the emergency power into play exacted by this regulation was, that there should be a vacancy in the office both of consul-general and vice-consul. It is clear that the findings establish that there was such vacancy within the meaning of the regulation. The fact that the minister resident and consul-general had obtained a leave of absence from the President, and was sick and unable to discharge his duties, and that the vice-consul previously appointed had not qualified, and was absent from Siam, did not, it is argued, justify an emergency appointment, because these facts did not create a vacancy in the narrower sense of that word. But the vacancy to which regulation 87 relates cannot be construed in a technical sense without doing violence to both the letter and spirit of the statute which authorized the regulation, and without destroying the true relation and harmonious operation of the two rules on the subject expressed in sections 36 and 87. That the statute did not contemplate a merely technical vacancy in the office of a consul-general, before a vice-consul could be appointed, clearly results from the fact that it defines the latter and subordinate officer as one “ who shall be substituted temporarily to fill the places of consuls-general . . . when they shall be temporarily absent or relieved from duty.” The power to make the appointment when the consul-general was only temporarily absent of necessity conveyed authority to do so, although there might be no vacancy in the office but simply an absence of the principal officer. The provision of the statute limiting the pay of the vice-consul or temporary officer out of the pay of the principal official, the incumbent, is also susceptible of but one construction, that is, that the temporary officer could be called upon to discharge the duties, even although there was an incumbent where from absence or other adequate cause he ceased temporarily to perform his duties. Regulation 36, adopted in UNITED STATES v. EATON. 341 Opinion of the Court. , pursuance of the statute and providing for the appointment of vice-consuls simultaneously or concurrently with the appointment of consuls, and regulating their pay, is as clear on this subject as is the statute. As regulation 87 but adds another safeguard to that created by the general terms of 36, by providing for a contingency not contemplated in 36, that is, the case of vacancy in both the consular and vice-consular offices, it follows that the word “vacancy” in 87 imports provision for a condition like unto that contemplated by the law and provided for in 36. Looking at the two regulations together, and taking in view their purpose, it is obvious that the appointment of the temporary officer for which they both provide depended not solely on a technical vacancy, but included a case where there arose a mere absence or inability of the principal and vice-officer to discharge the duties of the consular office. Nor is it true to say that because regulation 87 confers the power to appoint an emergency vice-consul-general “ on the diplomatic representative,” therefore Boyd, who was both minister resident and consul-general, was without authority to make a temporary appointment to the latter office. The argument by which this proposition is supported is as follows: As Boyd filled both offices, if there was inability to discharge the duties of the one, there was also like inability as to the other, and therefore incapacity to designate in one character a temporary officer to fill the duties of the other. The error here lies in assuming that because an official is temporarily prevented from performing the duties of his office thereby he becomes without capacity to make an emergency appointment. There is no essential identity between the two conditions, and it was because of their evident distinction that the regulations caused the existence of one condition, the temporary failure to perform duty, to give rise to the other; that is, the birth of the power to make the temporary appointment. It would lead to an absurd conclusion to construe the regulation as meaning that the very circumstance which generated the power to make the appointment had the necessary effect of preventing the coming into being of the power created. 342 OCTOBER TERM, 1897. Opinion of the Court. If the two offices of minister resident and consul-general be treated as distinct and separate functions, although vested in the same natural person, the authority was clearly in the minister to appoint the vice-consul-general. If, on the other hand, the two functions be considered as indivisible the like result follows, since the mere fact that the officer had obtained a leave or was sick and unable to be present in his office and discharge its duties did not deprive him of the capacity to make a temporary appointment. In its ultimate analysis, the proposition we have just considered substantially maintains that in no case where the duties of the minister resident and consul-general are united in one person can an emergency consul-general be designated under section 87. It would follow that in every such case where leave of absence was granted or sickness arose, and there was no vice-consul-general present, the public interest must inevitably suffer in consequence of the closing of the consular office. But the very purpose of the statute and regulations was to guard against such a contingency. The evil consequences to result from admitting the proposition is conceded, but the result is attributed not to error in the argument, but to a presumed omission in the regulations, which should, it is urged, be corrected, not by judicial construction, but by an amendment or change in the regulations. The error in the proposition, however, cannot be obscured by assigning the consequences which flow from it to a defect in the regulations, when, if a sound rule of interpretation be applied, the supposed omission does not arise. The construction rendered necessary by a consideration of the text of the statute and the regulations, by the remedy intended to be afforded, and the evil which it was their purpose to frustrate, is that the power to designate in case of the absence or the temporary inability of the consul-general was lodged in a superior officer, if there was such officer in the country where the consul discharged his duty, and, if not, on the happening of the conditions contemplated by the rule the officer highest in rank was authorized to make the temporary appointment. Doubtless it was this construction which caused the Department of State to recognize Eaton’s appointment UNITED STATES v. EATON. 343 Opinion of the Court. and the Secretary of State to approve his bond as vice-consulgeneral. The interpretation given to the regulations by the department charged with their execution, and by the official who has the power, with the sanction of the President, to amend them, is entitled to the greatest weight, and we see no reason in this case to doubt its correctness. The claim that Congress was without power to vest in the President the appointment of a subordinate officer called a vice-consul, to be charged with the duty of temporarily performing the functions of the consular office, disregards both the letter and spirit of the Constitution. Although article II, section 2, of the Constitution requires consuls to be appointed by the President “ by and with the advice and consent of the Senate,” the word “ consul” therein does not embrace a subordinate and temporary officer like that of vice-consul as defined in the statute. The appointment of such an officer is within the grant of power expressed in the same section, saying “ but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law or in the heads of departments.” Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered. The manifest purpose of Congress in classifying and defining the grades of consular offices, in the statute to which we have referred, was to so limit the period of duty to be performed by the vice-consuls and thereby to deprive them of the character of consuls in the broader and more permanent sense of that word. A review of the legislation on the subject makes this quite clear. Section 1674, Revised Statutes, took its source in “An Act to regulate the Diplomatic and Consular Systems of the United States,” approved August 18, 1856, c. 127, 11 Stat. 52. Whilst in the earlier periods of the Government, officers known as vice- 344 OCTOBER TERM, 1897. Opinion of the Court. consuls were appointed by the President and confirmed by the Senate, the officials thus designated were not subordinate and temporary, but were permanent and in reality principal officials. 7 Opinions Attorneys Gen. 247; 3 Jefferson’s Writings, 188. During the period, however, whilst the office of vice-consul was considered as an independent and separate function, requiring confirmation by the Senate, where a vacancy in a consular office arose by death of the incumbent, and the duties were discharged by a person who acted temporarily, without any appointment whatever, it would seem that the practice prevailed of paying such officials as de fade officers. In 1832 the Department of State submitted to Mr. Attorney General Taney the question of whether the son of a deceased consul, who had remained in the consular office and discharged its duties, was entitled to the pay of the office. In replying, the Attorney General said : “ If, after the death of Mr. Coxe, his son performed the services, and incurred, the expenses of a residence there, and his acts have been recognized by the Government, I do not perceive why he should not receive the compensation fixed by law for such services. He was de facto consul for the time and the public received the benefit. . . . The practice of the Government sanctions this opinion, as appears by the papers before me; and in several instances similar to this since the law of 1810, the salary has been paid. . . . The public interest requires that the duties of the office should be discharged by some one ; and where, upon the death of the consul, a person who is in possession of the papers of the consulate, enters on the discharge of its duties, and fulfils them to the satisfaction of the Government, I do not perceive why he should not be recognized as consul for the time he acted as such, and performed the services to the public, and if he is so recognized, the law of Congress entitles him to his salary. 2 Opinions Attorneys Gen. 523, 524. The terms of the law and its construction, in practice for more than forty years, sustain the theory that a vice-consul is a mere subordinate official and we do not doubt its correctness. We come, then, to consider the errors assigned as to the UNITED STATES v. EATON. 345 Opinion of the Court. amount of the salary. Prior to February 26, 1883, the consular official at Bangkok was of the third class, and his salary was $3000. At the date mentioned, an appropriation was made for minister resident and consul-general to Siam, $5000. 22 Stat. 424, c. 56. It was on this salary, which was reiterated in subsequent appropriations, that the allowance to Eaton was computed by the accounting officer Of the Treasury, and adjudged by the court below. It is first claimed that as the vice appointment related only to the consul-general’s office and not to that of minister resident, there was error in computing the allowance on the basis of the salary of both offices. Although both the statute and the regulations provide for the payment of the vice official from that of the principal officer, and of this fact Congress presumably had knowledge, yet in no case for the appropriation for the salary of the minister resident and consul-general to Siam has there been an attribution of a portion thereof to one function and another part to the other. On the contrary, Congress has treated the compensation of the two as an indivisible unit. As the duties of the two offices have thus been inseparably blended by Congress, and presumably the performance of the function of one office embraced of necessity the discharge of the duties of the other, we do not think the accounting officers erred in treating the salary fixed for the joint service as indivisible, and in not attempting an apportionment, when Congress had failed to direct that such division be made, or to furnish the method of making it. Indeed, the finding that Eaton executed all the duties of both offices required of him by the State Department, during his temporary tenure, implies that he performed, at the request of the State Department, as consul-general all the functions of minister resident. Thus the facts bring the case directly within Revised Statutes, § 1738, which provides that a consular officer may exercise diplomatic functions in the country to which he is appointed, when there is no officer of the United States empowered to discharge such duties therein, and when the consular officer is “expressly authorized by the President to do so.” Conclusive cogency results from these considerations when it is borne in mind that 346 OCTOBER TERM, 1897. Opinion of the Court. by the treaty between Siam and the United States there was but one diplomatic and consular officer of the United States in Siam, and that by the express terms of one of the later treaties with Siam the word “ consul-general ” of the United States therein used is defined to include any consular officer of the United States in Siam. 23 Stat. 782, 783. It is further argued that as the vice-consul is required by law (Rev. Stat. § 1698) before he enters on the execution of his trust to give bond, that there was error in allowing Eaton compensation for a period prior to the approval of his bond by the Secretary of State on April 3, 1893. The finding by the court below that Eaton entered on the discharge of his duties when designated, at once communicated with the Department of State, and was recognized as consul-general and allowed to perform all the duties of that office, answers this contention. It is settled that statutory provisions of the character of those referred to are directory and not mandatory. In United States v. Bradley, 10 Pet. 343, which was a suit upon a bond given by one Hall as paymaster, it was contended that as the bond required by the statute to be executed before an appointee could enter upon the duties of the office had not been furnished, Hall was not accountable as paymaster for moneys received by him from the Government. The court, however, held otherwise, saying, per Story, J. (p. 365): “ The giving of the bond was a mere ministerial act for the security of the Government, and not a condition precedent to his authority to act as paymaster. Having received the public moneys as paymaster, he must account for them as paymaster.” In United States v. Linn, 15 Pet. 290, suit was brought upon an undertaking executed by Linn as receiver of public moneys, with sureties. A contention was advanced like that made in the Bradley case. The undertaking in question was not executed under seal, while the statute required that the appointee should, before entering upon the duties of the office, execute a “ bond.” In holding the undertaking enforceable as a common law obligation, and answering the claim that it was not valid for want of a consideration, the court, per Thompson, J., said (p. 313): “ The emoluments of the office were the UNITED STATES v. EATON. 347 Opinion of the Court. considerations allowed him. for the execution of the duties of his office; and his appointment and commission entitled him to receive this compensation, whether he gave any security or not. His official rights and duties attached upon his appointment.” And, in referring approvingly to the decision in the Bradley case, and in reiterating the reasoning of the opinion in that case to which we have already alluded, the court said (p. 313): “According to this doctrine, which is undoubtedly sound, Linn was a receiver de jure as well as de facto when the instrument in question was given. And although the law requiring’security was directory to the officers entrusted with taking such security, Linn was under a legal as well as a moral obligation t.o giv.e the security required by law.” At page 314 it was also observed that it was not the mere appointment of Linn as receiver that formed the consideration of the instrument sued upon, but the emoluments and benefits resulting therefrom. It is true, as claimed by counsel for the Government, that in the opinion delivered in the subsequent case of United States v. LeBaron, 19 How. 73, expressions are found which appear inconsistent with those to which we have just , called attention. But the question presented in the LeBaron case was as to the proper construction of the language of a bond which had been given by a Government official, subsequent to his permanent appointment as a deputy postmaster, which bond was executed at the time the appointee was performing the duties of the office under a temporary appointment made (luring a recess of the Senate. Suit having been brought for a breach of the condition of the bond, it was contended that the terms of the instrument stipulated only for liability for the proper performance of the duties of the office under the first appointment. It was held, however, that as the statute required the giving of bond before the appointee could enter upon the execution of the duties of the office, it could not be presumed that the bond was intended to relate back to an earlier date than the time of its acceptance, and that its terms should be given a prospective and not a retrospective operation. In the course of the reasoning on this branch of the 348 OCTOBER TERM, 1897. Opinion of the Court. case general expressions were used to the effect that the appointee could not act and the bond could not take effect until its approval; and in discussing the further contention that the appointee was not in office under the second appointment at the time the bond took effect, because his commission had not been sent to him, and was not actually transmitted until after the death of the President who had made the appointment, it was observed that the acts required by the statute to be performed by the appointee before he could enter on the possession of the office under his appointment were “conditions precedent to the complete investiture of the office; ” and that “ when the person has performed the required conditions, his title to enter on the possession of the office is- also complete.” But this general language must be confined to the precise state of facts with reference to which it was used, and does not warrant the inference that it was intended to overrule the doctrine enunciated in the Bradley and Linn cases, which were not even referred to. Indeed, that this "was not supposed to be the deduction proper to be drawn from the reasoning in the LeBaron case, is shown by the fact that in the later case of United- States v. Flanders, 112 IT. S. 88, the doctrine of the earlier cases was carried to its legitimate result. In the Flanders case, the precise question raised in the case at bar was presented and decided. A collector of internal revenue who was required before entering upon the duties of his office to give bond and who was also required to take an oath before becoming entitled to the salary or emoluments of the office, failed to give bond or take the oath until more than two months after he had been allowed to enter upon the duties of the office. In a suit upon the bond, credit was claimed for compensation for services performed during the period preceding the taking of the oath and giving of bond, and the allowance was resisted by the Government on the ground that under the statutory provisions referred to the right to compensation did not exist. The court, however, held otherwise, saying (p. 91): “ If the collector is appointed, and acts and collects the moneys, and pays them over and accounts for them, and the UNITED STATES v. EATON. 349 Opinion of the Court. Government accepts his services and receives the moneys, his title to the compensation necessarily accrues, unless there is a restriction growing out of the fact that another statute says that he must take the oath ‘ before being entitled to any of the salary or other emoluments ’ of the office. “ But we are of opinion that the statute is satisfied by holding that bis title to receive, or retain, or hold, or appropriate, the commission as compensation, does not arise until he takes and subscribes the oath or affirmation, but that when he does so his compensation is to be computed on moneys collected by him, from the time when, under his appointment, he began to perform services as collector, which the Government accepted, provided he has paid over and accounted for such moneys.” This was evidently the view taken by the State Department, since on January 24, 1893, when the bond was returned for reexecution in another form, Eaton was directed to insert therein the date of his original appointment. These considerations dispose of all the questions presented, except the contention that there was error in awarding to Eaton certain items of fees collected and reported to the Treasury and charged to him, included in which were commissions of $67.91 earned on the settlement of two estates, and the sum of $5.73 disbursed by Eaton for lights upon the birthday of the King of Siam. We need only examine the legality of the two items just mentioned, as the sole objection made to the validity of the others is that Eaton was not entitled to charge them, because he was not lawfully acting as consul-general. It is contended that the fees collected for settlement of estates should not be allowed, because the services were “ official,” and we are referred to paragraph 508, subdivision 69, of the Consular Regulations of 1888, as supporting this.claim. On the part of the appellee, however, it is urged that the point has been held otherwise in United States v. Mosby, 133 U. S. 273, where it is said a similar objection to like charges was decided to be without merit. It was held in the Mosby case that the Court of Claims properly allowed to Mosby — who had been consul at Hong Kong 350 OCTOBER TERM, 1897. Opinion of the Court. from February, 1879, to July, 1885 — the sum of $8.21, as “ five per cent commission on the estate of Alice Evans, May, 1881.” In disposing of the matter the court said (p. 287) that “ this evidently was a fee in the settlement of a private estate, and was properly allowed.” It does not distinctly appear whether the fee there considered was controlled by the Consular Regulations of 1874 or by those of 1881. This is obvious when it is considered that the regulations of 1881 were only promulgated in May of that year. The regulations controlling this case are those of 1888, which in the respect in question are substantially like those of 1881, whilst fees earned prior to May, 1881, were governed by the regulations of 1874, which differed on the subject from those of 1881. Indeed, this difference between the two was referred to in the Mosby case, where it was said (p. 280): “Paragraph 321 of the Regulations of 1874 is as follows: ‘ 321. All acts are to be regarded as “ official services” when the consul is required to use his seal and title officially, or either of them; and the fees received therefor are to be accounted for to the Treasury of the United States.’ It is to be observed that this paragraph used the word ‘ required,’ and does not say that all acts are to be regarded as official services when the consul uses his seal and title officially, or either of them.” * * * * * “ Paragraph 489 of the Regulations of 1881 reads as follows: ‘ 489. All acts or services for which a fee is prescribed in the tariff of fees are to be regarded as official services, and the fees received therefor are to be reported and accounted for to the Treasury of the United States,’ except when otherwise expressly stated therein.” In view of the fact that it is not certain when the fees in question in the Mosby case were earned and of the difference between the Consular Regulations of 1874 and 1881, we shall not inquire into the correctness of the decision in the Mosby case as applied to the precise facts there considered, but will examine the question here presented in the light of the Consular Regulations of 1888 and as one of first impression. UNITED STATES v. EATON. 351 Opinion of the Court. By section 1745 of the Revised Statutes, the President is authorized to prescribe, from time to time, the rates or tariffs of fees to be charged by diplomatic and consular officers for official services, “ and to designate what shall be regarded as official services, besides such as are expressly declared by law.” Section 1709 of the Revised Statutes makes it the “duty” of consuls and vice-consuls to administer upon the personal estate left by any citizen of the United States who shall die within their consulate. The fact that the statute makes it the duty of a consul to administer on personal estates gives rise to the clearest implication that fees for such services were official fees, and the regulations on the subject promulgated by the President clearly support this view. Thus, in the tariff of consular fees contained in paragraph 508 of the Consular Regulations of 1888 it is provided, in item numbered 56, as follows: “ 56. For taking into possession the personal estate of any citizen who shall die within the limits of a consulate, inventorying, selling and finally settling and preparing or transmitting, according to law, the balance due thereon, five per cent on the gross amount of such estate. If part of such estate shall be delivered over before final settlement, two and one half per cent to be charged on the part so delivered over as is not in money, and five per cent on the gross amount of the residue. If among the effects of the deceased are found certificates of foreign stocks, loans or other property, two and one half per cent on the amount thereof. No charge will be made for placing the official seal upon the personal property or effects of such deceased citizen, or for breaking or removing the seals.” And, by paragraph 375 of the same regulations, a consular officer is directed to report to the Treasury Department fees of this character, and if he be a salaried officer to hold the same subject to the order of the department. This decisive provision is besides supplemented by paragraph 501 of the regulations, in which it is declared that “ all acts or services for which a fee is prescribed in the tariff of fees are to be regarded as official services, and the fees charged and received 352 OCTOBER TERM, 1897. Opinion of the Court. therefor are to be reported and accounted for to the Treasury of the United States, except when otherwise expressly stated therein.” As the statute made it the official duty of a consul to administer upon the estates of American citizens dying within the consular district, and the President, by virtue of the power vested in him, has clearly placed such duties in the category of “ official services,” and required the fees earned therefor to be accounted for as “ official fees,” it is pTain that the accounting officer of the Treasury properly charged Eaton with the amount of such fees, and that the Court of Claims erred in its ruling to the contrary. The ground of objection urged to the allowance by the Court of Claims of the item of $5.73 is stated in the brief to be that the disbursement “ was personal or diplomatic and wholly foreign to consular business.” We are unable, however, to say that the Court of Claims erred in its finding in respect to this item, as follows: “ The petty item for lights upon the King’s birthday was approved by the Department of State, and appears to be a charge within the discretion of that department; it is therefore allowed.” It follows from the foregoing considerations that the only error committed by the court below was in treating the fees . for the settlement of estates as unofficial, when they should have been held to be official. But this does not render it necessary to reverse the judgment in its entirety, but only to modify the same. Bev. Stat. sec. 707; Ballew v. United States, 160 U. S. 187. This modification will be effected by deducting from the principal sum of $3456.98, found due by the Court of Claims, $67.91, being the amount of the fees improperly allowed. The judgment of the Court of Claims is therefore modified by reducing the amount thereof to $3389.07, and as so modified it is Affirmed. BELEY v. NAPHTALY. 353 Statement of the Case. BELEY v. NAPHTALY. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 180. Submitted January 5, 1898. —Decided February 28,1898. The patent to the defendant in error does not preclude this court from inquiring into the effect of the act of July 23, 1866, c. 219, “ to quiet land titles in California; ” and the court holds that that act does not require proof of an actual grant from the Mexican authorities to some grantee through whom the title set up is derived; but that the proper officers of the United States had jurisdiction to issue a patent upon being satisfied of the existence of those facts in regard to which it was their province to determine; and that the act Includes those who, in good faith and for a valuable consideration, have purchased land from those who claimed and were thought to be Mexican grantees or assigns, provided they fulfil the other conditions named in the act. The facts in this case do not show, as matter of law, that Millett could not have been a bona fide purchaser of these lands for a valuable consideration ; and whether in fact he were so was a fact to be determined by the Government on the issue of the patent, which precluded further inquiry into that question. A person who was within the statute and had the right to purchase land as provided therein, could assign or convey his right of purchase and his grantee could exercise that right. The rejection by the Secretary of the Interior of the first application made by the defendant in error for a patent, and the subsequent granting of a rehearing and the issuing of a patent thereafter were all acts within his jurisdiction. The defendant in error, who was the plaintiff below, brought this action in the Circuit Court of the United States for the Northern District of California to recover the possession of certain lands described in his complaint; and also the value of the rents, issues and profits thereof. He alleged that he was the owner in fee of the lands in question and entitled to their possession, and that while such owner the defendants wrongfully entered upon the lands and ousted him therefrom, and have since wrongfully withheld from him the possession thereof. He further alleged that he was the owner of the land by virtue of a patent duly and regularly issued to him by the United VOL. CLXIX—23 354 OCTOBER TERM, 1897. Statement of the Case. States in the year 1893, under and in pursuance of the provisions of the act of Congress of April 24, 1820, c. 51, 3 Stat. 566, entitled “ An act making further provision for the sale of the public lands,” and the acts supplemental thereto, and also under the provisions of section 7 of the act of Congress of July 23, 1866, c. 219, entitled “An act to quiet land titles in California,” and that the defendants denied the validity of that patent. The defendants answered, denying the various allegations of the complaint, and the case came to trial without a jury, a jury having been waived by all the parties. The plaintiff put in evidence the patent issued to him from the United States for the land described in the complaint, and proved that while he was in the peaceable and quiet possession of such land the defendants entered upon it and ousted him therefrom, and have ever since detained the land from him. He also proved its rental value. The bill of exceptions contains the following: “ It was then admitted by the defendants’ counsel that at the time of the issuance of the patent hereinbefore described the lands therein and in the complaint described were public lands of the United States, subject to sale under the laws of the United States. It was here conceded by defendants’ counsel that defendants did not propose to connect themselves in any manner or form with the title of the United States to the premises described in the complaint herein, or any part thereof, either by certificate of purchase, patent or anything of the kind. “ The plaintiff then rested.” The plaintiff’s action rests primarily upon section 7 of the statute of the United States, entitled “An act to quiet land titles in California,” approved July 23, 1866. 14 Stat. 218, 220. That section, so far as material, reads as follows: “ Sec. 7. And 1)6 it further enacted. That where persons in good faith, and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and BELEY v. NAPHTALY. 355 Statement of the Case. have used, improved and continued in the actual possession of the same according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts as required in this section, under regulations to be provided by the commissioner of the general land office, joint entries being admissible by coterminous proprietors to such an extent as will enable them to adjust their respective boundaries.” To maintain their defence, the defendants then offered in evidence the application made by the plaintiff to purchase the lands from the United States pursuant to the seventh section above quoted. The application and the accompanying papers were offered for the purpose of showing that there had, in fact, never been any grant from the Mexican government to the Romeros, through whom, as supposed Mexican grantees, the plaintiff below derived his claim, and by reason of which claim he had made application to the land office under the provisions of the seventh section of the above-mentioned act of Congress. The papers offered in evidence by defendants showed that while the country was under Mexican rule the Romeros had taken proceedings to obtain a grant of lands, which included the land in question, from the Mexican government, and that such proceedings had certainly gone as far as a final decree by the governor providing for the making of a grant asked for, but there was no record evidence of any actual grant ever having been made. The facts as to the documentary evidence m the case are fully set forth in the report of the case of Romero v. United States, 1 Wall. 721. The evidence so offered by defendants was objected to on the part of the plaintiff as immaterial, incompetent and irrelevant for the purpose of affecting the validity of the patent under which the plaintiff claimed title to the lands in question. The court sustained the objection and the defendants duly excepted. Thereupon the defendants rested, and the court ordered judgment to be entered in favor of the plaintiff and 356 OCTOBER TERM, 1897. Opinion of the Court. against the defendants for a recovery of the land in accordance with the prayer of the complaint. This judgment was affirmed by the United States Circuit Court of Appeals for the Ninth Circuit, 44 U. S. App. 232, and the case is brought here for review. Mr. Henry F. Crane for plaintiffs in error. Mr. A. T. Britton and Mr. A. B. Browne for defendant in error. Mr. Justice Peckham, after stating the facts, delivered the opinion of the court. I. The defendant in error insists that his patent is conclusive evidence that he is a purchaser within the meaning of the seventh section of the statute above quoted, and that no fraud being alleged, no evidence can be received for the purpose of in any other way invalidating the patent issued to him by the Government of the United States. The patent does not preclude this court from construing the act of 1866, nor does it preclude an inquiry by the court whether the patent was issued without authority or against the expressed will of Congress, as manifested in the statute. Burfenning n. Chicago c&c. Railway, 163 U. S. 321, and cases there cited. If it were so issued, it is the duty of the court to give no weight to it. The proper construction of the act of 1866 is, therefore, the first question to be considered. In order that a person may avail himself of that act, is it necessary that an actual grant from the Mexican authorities to some grantee through whom the title is derived should be proved ? If so, the judgment in favor of the plaintiff in this case must be reversed, as no such grant was proved. We are of opinion, however, that the statute does not require proof of such a grant. .When the United States took possession of that portion of the country in which the lands in question are situated, it is public knowledge that there were many claims made by BELEY v. NAPHTALY. 357 Opinion of the Court. private individuals to lands under alleged grants from the preceding Mexican government. In order to ascertain and settle the questions arising thereunder, Congress, on the 3d of March, 1851, passed an act, c. 41, 9 Stat. 631, in which a commission was constituted and before which claims of that character might be proved. The eighth section provided, “ That each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to the said commissioners when sitting as a board, together with such documentary evidence and testimony of witnesses as the said claimant relies upon in support of such claims; and it shall be the duty of the commissioners, when the case is ready for hearing, to proceed promptly to examine the same upon such evidence and upon the evidence produced in behalf of the United States, and to decide upon the validity of the said claim, and, within thirty days after such decision is rendered, to certify the same, with the reasons on which it is founded, to the district attorney of the United States in and for the district in which such decision shall be rendered.” It will be noticed that the jurisdiction here given was only to decide upon the validity of the claim presented, and if the commission decided that the claims were not valid ones, as derived from the Mexican or Spanish government, it was the duty of the commission to reject them. Provision was made for a review of the decision of the commissioners by the District Court of the district in which the lands claimed were situated, which court, upon such review, was authorized and required “to decide on the validity of such claim,” and an appeal from the decision of the District Court was allowed to be taken to the Supreme Court of the United States. It appeared, from the documents offered in evidence in this action, that the Romeros had presented their claim to this commission, which had rejected it as not being a valid claim, and this rejection had been affirmed by the District Court and by the Supreme Court in the case in the first of Wallace, mentioned above. There must undoubtedly have been, at the time of the enactment of the act of 1866, many cases existing 358 OCTOBER TERM, 1897. Opinion of the Court. in that part of the country, where claims of Vona fide purchasers for value founded upon supposed rights or grants derived from the Mexican or Spanish government had been held to be invalid by the commission appointed under the act of 1851, and where, notwithstanding such decision, the claimants had remained in possession of the lands as originally acquired by them, there being no valid adverse right or title to the lands of which they were in possession, excepting that of the United States. This would have been the natural result arising from the difficulty in making formal and sufficient proof before the commission of valid rights and titles derived from the Mexican or Spanish government. It was only valid claims that the commission had power to allow. Where claims had been made and theretofore adjudged invalid by the Supreme Court of the United States, Congress had, in some instances, by private act, permitted those who were Vona fide purchasers from the claimant whose claim had been adjudged invalid, or from his assigns, to enter the land so purchased according to the lines of the public surveys then provided for, at $1.25 per acre, to the extent to which the lands had been reduced to possession at the time of the adjudication by the Supreme Court. Such is the act, approved March 3, 1863, c. 116, 12 Stat. 808, entitled “An act to grant the right of preemption to certain purchasers of the ‘ Soscol Ranch ’ in the State of California.” See also a similar act, approved June 17, 1864, c. 133, 13 Stat. 136; also the act approved July 2, 1864, c. 218, 13 Stat. 372; also the act approved March 3, 1865, c. 115, 13 Stat. 534. Other acts were also passed by Congress recognizing in effect the equitable rights of parties who were grantees of those who had claimed a right or title under the Mexican or Spanish government, and which right or title had subsequently been held to be invalid by the courts of our own Government. The hardship to be relieved from by these special acts and by the general act of 1866 did not solely exist in the fact that there had been a formal grant from the Mexican authorities, which was in some manner defective, so that no valid claim or right could grow out of such grant, but it also existed when a claimant in possession of land which he BELEY v. NAPHTALY. 359 Opinion of the Court. had Iona fide and for a valuable consideration purchased of one who claimed his right or title from the Mexican or Spanish government by way of a grant therefrom, was nevertheless unable to prove such grant, and as a consequence could not prove any valid title or claim in himself. Whether such invalidity were on account of some defect in the proceeding which resulted in a defective grant or whether it existed by reason of an inability to prove an actual grant was not material, so long as the claim of title actually rested upon what was in good faith supposed to have been a valid claim under the government of Mexico, and so long as there was no valid adverse right or title other than that of the United States. Persons occupying lands which they possessed under such circumstances and by such a claim were entitled to considerate treatment from the Government of the United States. They had in good faith paid a valuable consideration for the land of which they were in possession by virtue of such purchase, and they ought to have the first right to make good their title by purchase from the Government at the lowest price named. The defendants on the trial conceded these lands were, when the patent in this case was issued, public lands of the United States, subject to sale under the laws thereof, and that they did not intend to connect themselves in any manner or form with the title of the United States to the lands in question. There is no proof or offer of any proof in the record tending to show the existence of any adverse valid claim to the land, other than the United States, and the admission just alluded to taken in connection with the absence of such proof shows that when the patent issued there existed in fact no other adverse valid claim upon the land than that of the United States. Those who could not show actual grants from the Mexican government might nevertheless have equities quite as strong in their favor as those who could show an actual grant which was defective. The act of Congress should not be so construed as to except from its remedial provisions those who were without an actual grant while at the same time filling every other requirement of the act, unless the language used therein is open to no other interpretation. 360 OCTOBER TERM, 1897. Opinion of the Court. “ Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view, for qui hoeret in litera, koeret in cortice. In Bacon’s Abridgment, Statutes 1, 5 ; Puffendorf, book 5, chapter 12; Rutherford, pp. 422, 527; and in Smith’s Commentaries, 814, many cases are mentioned where it was held that matters embraced in the general words of statutes, nevertheless were not within the statutes, because it could not have been the intention of the lawmakers that they should be included. They were taken out of the statutes by an equitable construction. ... In some cases the letter of a legislative act is restrained by an equitable construction; in others it is enlarged; in others the construction is contrary to the letter. The equitable construction which restrains the letter of a statute is defined by Aristotle, as frequently quoted, in this manner: ‘¿Equitas est correctio legis generaliter latce qua parti deficit? ” Piggs v. Palmer^ 115 N. Y. 506, 510. Opinion by Earl, J. Construing the act of Congress of 1866 under the circumstances above outlined, and in view of the general rules of construction already stated, we hold that the provisions of the seventh section of that act include such a case as this. The purpose of the act is to quiet titles in California, and, as stated by the court below, it is a remedial statute and one entitled to a liberal construction in order to effect the purpose and object of its enactment. When the act, therefore, speaks of bona fide purchasers for a valuable consideration of lands from Mexican grantees or assigns, which grants have subsequently been rejected, we do not think that the words “grantees” and “ grants ” should have such a rigid and technical construction as to require the actual existence of a formal grant from the government of Mexico, but we are of opinion the act should be construed in accordance with what we conceive to have been its plain purpose, which was to cover the case of those persons who in good faith and for a valuable consideration have purchased lands (and taken and retained their possession) from those who claimed and were supposed to be Mexican grantees, but whose claims had been subsequently rejected. Otherwise, it seems to us clear that the purpose for which this BELEY v. NAPHTALY. 361 Opinion of the Court. seventh section was passed would be so circumscribed as to reduce it to much narrower limits than the known mischief to be remedied called for. The circumstances existing at the time of the passage of this act necessarily lead to the belief that the purpose of its enactment was to remedy (by purchase of the land from the United States at the lowest rate) a defect in a title supposed to have been derived from the Mexican government, where the claimant had in good faith and for a valuable consideration purchased from one who claimed to be a Mexican grantee, or from his assigns, and where there was no adverse claim other than that of the United States. A remedial statute ought not to be so construed as to defeat in part the very purpose of its enactment. United States v. Hodson, 10 Wall. 395. In the case now before us it appears there had been very strong parol evidence of the existence of an actual grant from the Mexican government, but it was not thought to be strong enough to overcome the absence of any record evidence of such a grant. We think that under the statute of 1866 record proof of the existence of a grant was not necessary in order to give the officers of the United States jurisdiction to issue the patent upon being satisfied of the existence of those facts in regard to which it was their province to determine. The act has received the same construction in the Supreme Court of California in the case of Bascomb v. Davis, 56 California, 152. The court there construed it so as to include those who in good faith and for a valuable consideration had purchased lands which were supposed to have been granted by the Mexican government, and who had used, improved and continued in the actual possession of the lands as provided in the act. This construction by the California court is entitled to very high consideration, and especially is this so in a case where the act was directed to a condition of things in existence at the time of its passage and with which the courts of that State would be particularly familiar. In Winona d? St. Peter Railroad v. Barney, 113 U. S. 618, this court construed an act of Congress which alluded to lands granted as aforesaid ” as including lands purporting to have 362 OCTOBER TERM, 1897. Opinion of the Court. been “granted as aforesaid,” and this inclusion was made because the court was satisfied, taking all things into consideration, that such construction was what Congress meant. The court simply carried out that intention by supplying a word not found in the act. For the reasons thus given we think this act includes those persons who in good faith and for a valuable consideration have purchased land from those who claimed and who were thought to be Mexican grantees or assigns, provided they fulfil the other conditions named in the act. II. Coming to the conclusion we have, there is another objection made to the title on the part of the plaintiffs in error. They urge that the statute requires that the person who purchased the land should have made his purchase from the Mexican grantee or his assignee in good faith, and it is stated that as the defendant in error made his purchase from a remote grantee of the Romeros on the 15th of May, 1876, twenty years after the claim had been rejected by the commissioners appointed under the act of 1851, eighteen years after it had been rejected by the United States District Court, and thirteen years after it had been rejected by this court, it was clear as a legal result from these facts that he could not be a purchaser in good faith. It appears however that on the 8th of August, 1859, one S. P. Millett became a grantee and entered into the possession of the lands, used, improved and cultivated them, and continued in the actual possession thereof according to the lines of the original purchase until 1868, and that the defendant in error claims through Millett by several mesne conveyances. Plaintiffs in error object that Millett was not a purchaser in good faith because he did not purchase until October, 1859, before which time the claim of the Romeros had been rejected by the commissioners and by the United States District Court. An appeal from those decisions was pending at the date above mentioned before this court, and it was therein contended that the Romeros had a valid claim under the Mexican government such as should have been recognized by the commissioners and by the District Court, and such as ought to be recognized by BELEY v. NAPHTALY. 363 Opinion of the Court. the Supreme Court. We do not think the facts thus stated show, as matter of law, that Millett could not have been a Iona fide purchaser of these lands for a valuable consideration, and whether in fact he were such bona fide purchaser was a question to be determined by the Government on issuing the patent, and an inquiry into that question of fact is precluded by the patent itself. III. It is also objected that even if Millett were adjudged a purchaser in good faith from a Mexican grantee, he could not convey to another his right under the statute of 1866, but that it was a mere personal privilege which he might exercise topurchase the land at the minimum price established by law. We think that a person who was within the statute and who had the right to purchase land as provided therein was not confined to the actual purchase himself, but that he could assign or convey such right, and that his grantee or assignee, immediate or remote, could, so far as this point is concerned, exercise the same right of purchase which he had before he conveyed or assigned. In Thredgill v. Pintard, 12 How. 24, the court recognized the right of an individual in possession of land and who was entitled to a preemption right therein to convey such right to another. In Webster v. Luther, 163 U. S. 331, it was held that persons entitled under the Revised Statutes, section 2304, to enter a homestead, who may have theretofore entered under the homestead laws a quantity of land less than 160 acres, and who had the right under section 2306 to make an additional entry for the deficiency, could transfer such right by a proper conveyance. In the above cases the general rule of law which discourages all restraints upon alienation was recognized, and the assignment of a right before entry was held valid, one of the reasons for such holding being that there was no restriction against such assignment contained in the act creating the right. Nor is any such restriction to be found in the act of 1866. Upon this question it must be assumed that Millett was a purchaser in good faith. Being such a purchaser he could 364 OCTOBER TERM, 1897. Opinion of the Court. assign his right and title to another, and the rights under such assignment were not affected by the fact that the defendant in error did not purchase his title until many years after the final determination by this court that no formal, actual or valid grant had ever been made by the Mexican government to the Romeros. IV. We are also of opinion that the rejection by the Secretary of the Interior of the first application made by the defendant in error for a patent, and the subsequent granting of a rehearing and the issuing of a patent thereafter by the Secretary, were all acts within the jurisdiction of that officer. The fact that a decision refusing the patent was made by one Secretary of the Interior, and, upon a rehearing, a decision granting the patent was made by another Secretary of the Interior, is not material in a case like this. It is not a personal but an official hearing and decision, and it is made by the Secretary of the Interior as such Secretary, and not by an individual who happens at the time to fill that office, and the application for a rehearing may be made to the successor in office of the person who made the original decision, provided it could have been made to the latter had he remained in office. The Secretary who made the first decision herein, could have granted a rehearing and reversed his former ruling. The case of United States v. Stone, 2 Wall. 525, has no bearing adverse to this proposition. In that case it was stated that a patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially; that if he issues a patent for land reserved from sale by law, such patent is void for want of authority, but that one officer of the land office is not competent to cancel or annul the act of his predecessor; that is a judicial act and requires the judgment of a court. The power to cancel or annul in that case meant the power to annul a patent issued by a predecessor, and this court held no such power existed. The officer originally issuing it would have had no greater power to annul the patent than had bis successor. Neither does Noble v. Union River Logging Railroad, 147 BELEY v. NAPHTALY. 365 Opinion of the Court. {J. S. 165, touch the case. The principle therein decided was in substance the same as in the Stone case, supra. The control of the department necessarily ceased the moment the title passed from the Government. It was not a question whether a successor was able to do the act which the original officer might have done, but it was the announcement of the principle that no officer, after the title had actually passed, had any power over the matter whatever. After the Secretary of the Interior had approved the map as provided for in the act of Congress under which the proceedings were taken by the company, the first section of that act vested the right of way in the company. This was equivalent to a patent, and no revocation could thereafter be permitted. See also Michigan Land (ft Lumber Co. v. Rust, 168 U. S. 589, at 592. We have considered the other questions raised herein but do not think any error was committed in their disposition by the courts below. The judgment of the Circuit Court of Appeals must be Affirmed. Mr. Justice Harlan dissented. Smith v. Naphtaly. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. No. 181. Submitted with No. 180. Mr. Justice Peckham delivered the opinion of the court. In this case, counsel for the appellant concedes that if the court should hold that the sale of the land mentioned in the patent involved in the foregoing case were a valid sale, then the judgment in this case should be affirmed. As we do so hold, the judgment herein is, therefore, Affirmed. Mr. Justice Harlan dissented. Same counsel and same briefs as in No. 180. 366 OCTOBER TERM, 1897. Statement of the Case. HOLDEN v. HARDY (No. 1). HOLDEN v. HARDY (No. 2). ERROR TO THE SUPREME COURT OF THE STATE OF UTAH. Nos. 261, 264. Argued October 21,189T.— Decided February 28, 1898. The provisions in the act of March 30, 1896, c. 72, of Utah, providing that “The period of employment of workingmen in all underground mines or workings shall be eight hours per day, except in cases of emergency where life or property is in imminent danger ; ” that ‘ ‘ The period of employment of workingmen in smelters and all other institutions for the reduction or refining of ores or metals shall be eight hours per day, except in cases of emergency where life or property is in imminent danger ; ” and that “Any person, body corporate, agent, manager or employer who shall violate any of the provisions of sections one and two of this act shall be deemed guilty of a misdemeanor,” are a valid exercise of the police power of the State, and do not violate the provisions of the Fourteenth Amendment to the Constitution of the United States by abridging the privileges or immunities of its citizens, or by depriving them of their property, or by denying to them the equal protection of the laws. The cases arising under the Fourteenth Amendment are examined in detail, and are held to demonstrate that, in passing upon the validity of state legislation under it, this court has not failed to recognize the fact that the law is, to a certain extent, a progressive science ; that in some States methods of procedure which, at the time the Constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary ; that restrictions which had formerly been laid upon the conduct of individuals or classes had proved detrimental to their interests; and other classes of persons, particularly those engaged in dangerous or unhealthy employments, have been found to be in need of additional protection: but this power of change is limited by the fundamental principles laid down in the Constitution, to which each member of the Union is bound to accede as a condition of its admission as a State. These were writs of error to review two judgments of the Supreme Court of the State of Utah, denying applications of the plaintiff in error, Holden, for his discharge upon two writs of habeas corpus, and remanding him to the custody of the sheriff of Salt Lake County. The facts in case No. 261 were substantially as follows: On June 20,1896, complaint was made to a justice of the peace of HOLDEN v. HARDY. 367 Statement of the Case. Salt Lake City that the petitioner Holden had unlawfully employed “one John Anderson to work and labor as a miner in the underground workings of the Old Jordan mine in Bingham canon, in the county aforesaid, for the period of ten hours each day ; and said defendant, on the date aforesaid and continuously since said time, has unlawfully required said John Anderson, under and by virtue of said employment, to work and labor in the underground workings of the mine aforesaid, for the period of ten hours each day, and that said employment was not in case of an emergency or where life or property was in imminent danger, contrary,” etc. Defendant Holden, having been arrested upon a warrant issued upon said complaint, admitted the facts set forth therein, but said he was not guilty because he is a native-born citizen of the United States, residing in the State of Utah ; that the said John Anderson voluntarily engaged his services for the hours per day alleged, and that the facts charged did not constitute a crime, because the act of the State of Utah which, creates and defines the supposed offence is repugnant to the Constitution of the United States in these respects: “It deprives the defendant and all employers and employés of the right to make contracts in a lawful way and for lawful purposes ; “It is class legislation, and not equal or uniform in its provisions ; “It deprives the defendant, and employers and employés of the equal protection of the laws; abridges the privileges and immunities of the defendant as a citizen of the United States, and deprives him of his property and liberty without due process of law.” The court, having heard the evidence, found the defendant guilty as charged in the complaint, imposed a fine of fifty dollars and costs, and ordered that the defendant be imprisoned in the county jail for a term of fifty-seven days, or until such fine and costs be paid. Thereupon petitioner sued out a writ or habeas corpus from the Supreme Court of the State, annexing a copy of the proceedings before the justice of the peace, and praying his dis- 368 OCTOBER TERM, 1897. Argument for Plaintiff in Error. charge. The Supreme Court denied his application, and remanded him to the custody of the sheriff, whereupon he sued out this writ of error, assigning the unconstitutionality of the law. In the second case the complaint alleged the unlawful employment by Holden of one William Hooley to work and labor in a certain concentrating mill, the same being an institution for the reduction of ores, for the period of twelve hours per day. The proceedings in this case were precisely the same as in the prior case, and it was admitted that there was no distinction in principle between the two cases. Mr. Jeremiah M. Wilson for plaintiff in error. Mr. C. IF. Bennett, Mr. JR. Harkness, Mr. A. Howat and Mr. W. JU. Bradley were on his brief. In both of these cases is involved the constitutionality of the same statute of Utah, the only difference being that in the first the defendant Holden was convicted of a violation of section one of said act, while in the latter he was prosecuted and convicted under the second section. We will, therefore, consider them together, referring in the following statement to the record in the first case. I. The statute of Utah involved herein is in conflict with the Constitution of the United States, and is not a valid exercise of the police power of the State. Before presenting our views in detail concerning the repugnance of this statute to the Constitution of the United States, and to the various clauses of the Fourteenth Amendment which we think applicable to the matter in controversy, we deem it appropriate to ask the attention of the court, at the outset, to some of the most conspicuous of the authorities bearing upon the general question as to the scope of this police power, and as to the subjects relating to which it may properly be invoked. (aJ\ We have not found in anv of the text-books or cases an authoritative statement defining and limiting the exact HOLDEN v. HARDY. 369 Argument for Plaintiff in Error. scope and range of this power. In fact, this court itself, in the case of Stone v. Mississippi, 101 U. S. 814, has declined to specifically define it; but in the case of New York v. Miln, 11 Pet. 102, 139, will be found probably as concise and comprehensive a general definition of the term as could be given. The court says: “We are aware that it is at all times difficult to define any subject with proper precision and accuracy. If this be so in general, it is emphatically so in relation to a subject so diversified and multifarious as the one which we are now considering [the police power]. If we were to attempt it, we should say that every law came within this description which concerned the welfare of the whole people of a State, or any individual within it; whether it related to their rights or their duties; whether it respected them as men or as citizens of the State; whether in their public or private relations; whether it related to the rights of persons or of property, of the whole people of a State or of any individual within it.” The court, however, is careful to add that this jurisdiction or power can only be exercised where it is not “ surrendered or restrained by the Constitution of the United States.” See also Lake View v. Hose Hill Cemetery Co., 70 Illinois, 191; Commonwealth v. Alger, 7 Cushing, 53, 84; Railroad Company v. Husen, 95 U. S. 465; State v. Noyes, 47 Maine, 189, 211; Thorpe v. Rutland de Burlington Railroad, 27 Vermont, 149; In re Jacobs, 98 N. Y. 98, 107; Austin v. Murray, 16 Pick. 121, 126 ; Watertown v. Mayo, 109 Mass. 315, 319; Coe v. Schultz, 47 Barb. 64; In re Cheesebrough, 78 N. Y. 232. To be valid, legislation enacted for the purpose of promoting the public health, morals or welfare must be of such a character that it will affect and be for the benefit of the whole community, or at least the part of it which is brought into contact with the evils sought to be remedied. Such an enactment must not be so limited in its terms that it can and will, as in the present case, operate upon but one of many classes of employers and employes of the same general description, living and doing business under the same general conditions, even though the occupation in which they are engaged VOL. CLXIX—24 370 OCTOBER TERM, 1897. Argument for Plaintiff in Error. may be injurious to themselves. In other words, it must relate and have reference to the result to the health and welfare of the community of the act or omission or the condition sought to be prevented or remedied, and not to the result of such act or omission to the author or person who is responsible for such condition or engaged in the dangerous or injurious occupation — that is, provided such person is sui juris and does not come within the class of persons (such as women, children, etc.) over which, as has been held in some of the States, the State has the right, to a limited extent, to exercise control for their own good and welfare, and thus indirectly for the welfare of the public. It is, therefore, not within the power of the legislature to prevent persons who are sui juris, and otherwise perfectly competent to contract, from entering into employment and voluntarily making contracts in relation ■ thereto merely because the employment in which they are to engage, although perfectly legal and proper in itself, may be considered by the legislature to be dangerous or injurious to the health of the employé ; and if such right to contract cannot be prevented, it certainly cannot be restricted by the legislature to suit its own ideas of the ability of the employé to stand the physical and mental strain incident to the work. The character of the work to be performed, the number of hours a day in which the employé shall work, and the amount of compensation to be paid therefor are purely and necessarily personal matters between the parties to the contract, and are regulated by the terms thereof and by the will of the employer, influenced by considerations as to the requirements of his business and the condition of the market for his products, etc., and it is clear, as it seems to us, that so long as the employment does not interfere with the rights or health of others, the legislature cannot prevent it or regulate any of its terms. If, for any reason, the condition of the market should become such that there was no sale or demand for the product of an iron mine, for example, and the owner, in consequence of this condition, should find that he was running his business at a loss, it would be ridiculous to say that he would HOLDEN v. HARDY. 371 Argument for Plaintiff in Error. not have a perfect right to lay off some of his hands altogether, or to work them all half time, or arbitrarily to reduce the number of working hours of all to any extent he might think necessary or advisable; and if he could do that, we do not see why he could not, for the purpose of meeting an increased demand for the product of his mines and the competition from other sources, or if for any reason the condition of the market warranted it, increase the number of hours of his workmen to ten or any other number more than eight that they might be willing to work or contract with him for. A case here directly in point is that of In re Jacobs, supra, where the court had under consideration a law of New York prohibiting the manufacture of cigars and the preparation of tobacco in any form in tenement houses, etc. In the opinion the court says: “ To justify this law it would not be sufficient that the use of tobacco may be injurious to some persons, or that its manufacture may be injurious to those who are engaged in its preparation and manufacture j but it would have to be injurious to the public health! (5.) But however this may be, it is well settled that, when relating to business enterprises, the business or occupation at which such regulations are directed must be affected with a “public interest,” and that the regulation must be for the protection or benefit of the public generally, as we have above contended, and not of an individual or segregated class of individuals under the circumstances we have mentioned. This court, in the case of Munn v. Illinois, 94 U. S. 113,126, defines the property that is subject to police regulation as follows: “ Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created.” See also Cooley’s Constitutional Limitations, 476, 720, (4th ed.); Tiedman’s Limitation of Police Powers, §§ 178, 179. 372 OCTOBER TERM, 1897. Argument for Plaintiff in Error. In United States v. Martin, 94 U. S. 400, 403, in which this court was called upon to construe section 3738 of the Revised Statutes, providing that eight hours shall constitute a day’s work for employés of the Government, it was held that said statute was “in the nature of a direction from a principal to his agent that eight hours is deemed to be a proper length of time for a day’s labor, and that his contracts shall be based on that theory,” but the court distinguishes between such a direction and the principle involved in the case at bar, as follows : “ The English statute books are full of assizes of bread and ale, commencing as early as the reign of Henry II., and regulations of labor, and many such are to be found in the statutes of the several States. It is stated by Adam Smith, as the law in his day, that in Sheffield no master cutler or weaver or hatter could have more than two apprentices at a time, and so lately as the 8th George III. an act, which remained unrepealed until 1825, was passed, prohibiting, under severe penalties, all master taylors in London, or within five miles of it, from giving, or their workmen from accepting, more than two shillings seven pence half penny a day, except in the case of general mourning.” Smith’s Wealth of Nations, 125, (6th Oxford edition of 1869.) “A different theory is now almost universally adopted. Principals, so far as the law can give the power, are entitled to employ as many workmen, and at whatever degree of skill, and at whatever price they think fit, and, except in some special cases, as of children or orphans, the hours of labor and the price to be paid are left to the determination of the parties interested. The statute of the United States does not interfere with this principle.” (c) From the foregoing authorities it would seem to result that an enactment of the legislature, made in pursuance of the police power of a State, or a police regulation, must be for the purpose of enforcing a duty and to punish acts or omissions which may be right or wrong according to the time, place or manner of doing them — that is, the exercise of what would otherwise be a right at a time, place or in a manner injurious to the public, is prohibited. A general criminal law is to HOLDEN v. HARDY. 373 Argument for Plaintiff in Error. punish something wrong in itself, without regard to the time, place or manner of doing it, and of course such a law, whether enacted by original or delegated authority, is not a police regulation. • Therefore, the violation of the maxim sic utere tuo ut alienum non Icedas covers every case in which the exercise of the police power would be valid or legitimate; and we think no case of a valid police regulation can be found which will not come under this maxim, and which does not refer to the limitation of the exercise of what, under proper circumstances, would be a right, and only becomes a wrong because of its excessive exercise or consequent injury to the health, welfare or morals of the public. Police regulations are, therefore, not enacted for the purpose of punishing wrongs, as such, but to enforce duties to the public in respect to matters which can only become wrongs sub modo. The right to destroy property to stay a conflagration and in case of war, etc., is also distinguishable, and is based upon the maxim stilus populi, suprema lex. So of the right of eminent domain ; though exercised for a public use, it is based on compensation. In a police regulation, there is only restraint for the public welfare. If the constitution of the State requires the legislature to enact laws respecting the health of miners and others, the law to be valid must relate to the duty of the employer to his employes in the respects we have indicated, and must not interfere with the relation of the parties that rests solely on contract. The present law has no relation to health or safety, either of the public or the persons affected, or, if so, only in a very remote degree; while its direct and principal effect is to interfere with the rights and liberties of the contracting parties. It is apparent that if the police power extends to matters affecting contract relations and in which the public health, etc., is m no way concerned, there is practically no limit to its exercise; and all business conducted in the States, whether of a public, ^wasz'-public or strictly private nature, could be made subject to such laws regulative thereof as the legislatures of 374 OCTOBER TERM, 1897. Argument for Plaintiff in Error. the respective States might see fit to adopt, and the personal liberty of the citizen, secured to him by the Constitution of the United States, would be entirely subverted. (• Ó Ó 1 . • >00 W Q £ O œ W Ó pq £ O œ W W Q Ph £ O co W SMYTH v. AMES. 501 Mr. Woolworth’s Argument for Appellees. These tables show that not one of these roads would have realized the cost of its local business in the three years ending June 30, 1891, 1892 and 1893, had their rates been those fixed by the House Roll 33, except the Fremont, Elkhorn & Missouri Valley in 1891 and in 1893, and the Union Pacific in 1892 and 1893; the Fremont Company would have earned 10.63 per cent in 1891, and in 1893 6.84 per cent; and the Union Pacific 4.06 in 1892, and 1.99 in 1893. Mr. Wool worth also submitted the following as the result of the evidence concerning the values of the properties. The Burlington. Mr. Taylor, the auditor of the company, who in one capacity or another has been in the accounting department ever since the construction of the road was begun, says that the same cost $74,616,523.02, including original construction, betterments, etc. He also says that the mileage of the Burlington is 2253.07, which would give about $33,000 per mile. There is no suggestion in the record that the road was not honestly and economically built. There is no direct proof of present value, but Mr. Taylor says that some of the properties are worth much more now than they were when acquired. Union Pacific. Mr. Morgan was an engineer, called to their assistance by the Paterson Commission, which was charged by Congress with the examination, among other things, of the condition and value of the road. From his report several extracts are made, and one is an estimate of the cost of reproducing the road, which shows the cost per mile to be $26,814. This does not include terminals. Mr. House, who was one of the original corps of engineers, affirms that estimate. Mr. Calvert, who had been at first resident and afterwards chief engineer of the Burlington, in Nebraska, and was superintendent of that road when he testified (1254), says that the cost and value of a road which had become mature by time 502 OCTOBER TERM, 1897. Mr. Woolworth’s Argument for Appellees. and expenditure was from 33| to 50 per cent greater than one just built, which would increase the estimate of Mr. House and Mr. Morgan to from $35,752 to $40,221. To this a large sum should be added for terminals, which Mr. Morgan estimates at $10,000,000 (1150). Mr. House estimates them at $3,973,912 (1643). Either sum swells the cost of reproduction very largely. The Elk Horn & Omaha Roads. The testimony is imperfect as to the present value and costs of these roads, as will be found on examination. It is definite enough for the Omaha terminals but can only be estimated for the rest of the property. II. The provisions of the constitution of the State of Nebraska limit the competency of the legislature to fix railroad rates. Under those provisions, statutory rates must yield, not only cost and compensation the least possible, but in all contingencies cost and a fair profit. III. House Roll 33 is unconstitutional because it attempts to fix and limit the rate which the Union Pacific Railway Company may charge for transportation of freight on its lines between points within the State. That company is within the language of the act, and the Board of Transportation so construes it. The Union Pacific Railroad Company was incorporated by an act of Congress passed in 1862. An act amendatory of the charter was passed in 1864. This act authorized any or all of the companies mentioned therein to consolidate their organizations. (Sec. 16.) Under this authority the Union Pacific Railroad Company, the Kansas Pacific Railway Company, (at one time known as the Leavenworth, Pawnee & Western, and afterwards as the Union Pacific Railroad Company Eastern Division,) and the Denver Pacific Railway and Telegraph Company became consolidated under the name and style of the Union Pacific Railway Company. The object of the incorporation of the company is stated in the original act to be “ to secure the safe and speedy trans- SMYTH v. AMES. 503 Mr. Woolworth’s Argument for Appellees. portation of the mails, troops, munitions of war and public stores” (Sec. 3), and “to promote the public interests and welfare by the construction of said railroad and telegraph 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 benefit of the same for postal, military and other purposes.” (Sec. 18.) The service which the company was required to render to the Government was to “ at all times transmit dispatches 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 purposes aforesaid.” It is too late in the day to take a moment’s time to prove that the States cannot interfere with any of the operations of the General Government. And in administering its affairs that Government may act directly by its own officers, or it may make use of any appropriate agency. In proper cases Congress may create a corporation to render certain services to the Government. At one time it created a bank to be the fiscal agent of the Government, and this court held that such a corporation was a proper means to effect its legitimate objects. McCullough v. Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 738. And such an instrumentality, when once adopted by Congress for such purposes, is in its operations as far beyond any interference by a State as the army or navy or the postoffice. Attempts were made by two several States to tax the operations of the bank, but this court held such attempts futile. In the Pacific Railroad acts of 1862 and 1864 Congress granted to the Central Pacific Company some of the franchises which we have seen it granted to the Union Pacific Company, and the State of California attempted to tax them. This court held that for the State to lay such a tax was “not only derogatory to the dignity of the Federal Government, but was repugnant to its paramount sovereignty.” California v. Pacific Railroad Co., 127 U. S. 1. 504 OCTOBER TERM, 189T. Mr. Carter’s Argument for Appellees. The provisions of House Roll 33 apply to all railroad corporations doing business within the State of Nebraska, and include the Union Pacific, the Chicago, Burlington & Quincy, the Chicago & Northwestern, the Missouri Pacific and the Elkhorn Companies. The Federal corporation not being subject to the jurisdiction of the State in this respect, the result is that the act is unconstitutional and void, ’not only in respect of that company but in its whole scope and reach. It was beyond the competency of the legislature to enact the law in the words of it, and therefore it must fall. IV. This case is within the jurisdiction of the court, whether it be considered as a court of the United States or as a court of equity. Mr. James C. Carter for appellees. Some of the claims asserted in defence of the Nebraska act may be generally stated thus: 1. That railroads are allowed to be built for the public benefit, and must, therefore, be made to subserve the benefit of the people; and that any private interest which may be involved is of secondary importance. 2. That all people having occasion to need the services of a railroad are entitled to them; and that the compensation required of them must be made to depend, not upon what the railroad can afford to render the services for, but upon what they can afford to pay. 3. That while it may be impossible to ascertain what the cost is for any particular service, it is possible to ascertain the average cost of the whole service rendered by a road, and fair to treat this average as the cost of any particular service; and consequently to assume that the cost of each particular service is everywhere the same. 4. That all persons have an equal right to the services of a railroad upon the same,terms, notwithstanding that the actual cost of the service demanded by one may be much greater than that of the same service demanded by another. 5. That in fixing rates the value of the service to the one who demands it is unimportant; but that the one who needs SMYTH v. AMES. 505 Mr. Carter’s Argument for Appellees. it most, and who obtains the greatest benefit from it, should nay no more for it than he who needs it least and obtains the least benefit from it. 6. That the carriage of goods to and from large and compact communities which furnish large amounts of transportation and thus enable the service to be performed at much less cost are not entitled to the benefit of this natural advantage, but that all parts of the State must be put upon an equality. There are many other claims upon which this legislation is defended, but the above are sufficient for the only purpose for which they are now stated, namely, to point out the first necessity of this discussion; namely, a clear understanding of what railroad business really is, and had become, under and in pursuance of the contracts between the public and the railroad companies at the time when this legislation assumed to deal with it. . The leading features of the railroad system of the United States, as it has thus grown up and been established under every sanction of law and public sentiment, are these : (a) That the prices of carriage are everywhere fixed, not by the railroads nor by shippers, but by the same imperious power which fixes the price of all other articles or services, namely, the pressure of competition. Against this determination it is irrelevant to argue justice or injustice; or, to speak more correctly, the decision of this power is always just. We do not complain of the decision in the case of food and clothing. We have no more right to complain of it in the case of the carriage of goods. (6) Railroads charge the highest price they can profitably get, as every one else does who has goods to sell; and in some instances, where they have no competitors other than teams, they may be under the temptation to charge an excessive price. This they could not do permanently, but they might do it temporarily, and before the forces of competition could be brought into play. An excessive price is that indisputably unusual charge for services rendered under similar conditions 506 OCTOBER TERM, 1897. Mr. Carter’s Argument for Appellees. which reasonable men would declare extortionate. Against this danger there are two sufficient protections: (1) A plain regard for self-interest will and does prevent it. Moderate charges yield more profit by the greatly increased business they draw. No railroad could make money by the practice of extortion. A sound policy, perfectly well known to railroad managers, advises them that it is best to tempt and draw out a large traffic by low prices than to try to make a large profit on a small business. (2) No one need pay an excessive charge. The service can be exacted at a reasonable price. It may indeed cost a lawsuit ; but so do all other social and business wrongs. The wrong cannot be very great which does not provoke resistance. The extremely small number of actual contests on this point are good evidence of the fact that this abuse is not frequent or extensive. (c) Railroad rates exhibit great diversity, and the reason of many of them is not apparent to the observer who does not think of the conditions which free competition works out, and of the way in which the railroad system has grown up. The cost of the service in particular cases has little to do with the making of the charge. What necessarily determines the carrier’s conclusion in any case, where he is called upon to say whether he will take new traffic offered at a certain price, is how much, if any, cost in addition to what he is then under he will incur if he takes it. His final aim is to get such an average rate for all his traffic as will yield him a profit. The proportions in which all his customers contribute to that average are settled by causes absolutely beyond either his or their will. A grocer’s customer, who uses much tea and little sugar, would not say to him that he is doing a great injustice by exacting from him a profit of twenty-five per cent on the tea he buys, and at the same time selling his neighbor sugar at a profit of only five per cent. (¿Z) There is a common phrase that railroad rates are arranged so as to “ get all the traffic will bear; ” and this is true, although not in the odious sense which imputes a design to take advantage of supposed necessities in order to SMYTH v. AMES. 507 Mr. Carter’s Argument for Appellees. exact an excessive compensation. In its real meaning it simply indicates to railroad managers the stern necessity which limits them to low rates in order to gain or to save traffic. When, in ways already indicated, they seek to gain traffic by competition with water carriage, they ascertain the rate which it is necessary for them to meet in order to secure it. They mush take this rate or give up the struggle for the business; for it is “ all the traffic will bear.” At points where there is no competition except with other forms of land carriage, and little traffic at that, they fix rates calculated to build up the country and increase business; for such rates are “ all the traffic will bear.” If the great agricultural products are so low that farmers can make nothing by raising them and sending them to a market, the railroad man is obliged to make his rates such that the farmer can make something, or he will cease to attempt to raise such products, and the railroad will lose its chief business. He may find it necessary for his own interest to carry the traffic at actual cost, and sometimes even for less, for this is “ all the traffic will bear.” (0) In saying that railroad business is subject, like ordinary industries, to the stress of competition, we do not express the whole truth. They are peculiarly sensitive to it, and much more than most other industries. Resorting to the just analogy heretofore suggested, that a railroad company may be regarded as the manufacturer and seller of transportation, some peculiarities which distinguish this from other manufactures should be noted. In the first place the expense of manufacturing as compared with the price of the product is much larger than in other industries. In other industries this expense depends very largely upon the amount of business done; but in this it goes on and cannot be greatly reduced when little business is transacted. Again, the commodity produced by railroads, cannot, for want of a sufficient demand, be stored away and kept’ for a better market. If it is not sold to-day, because no fair price can be obtained for it, it can never be sold, and yet a large percentage of its cost which has already been incurred and paid must be lost. 508 OCTOBER TERM, 1897. Mr. Carter’s Argument for Appellees. These conditions put the managers of railroads under the constant spur of a desire to sell what they have on hand so as not to lose the expense it has already cost. Sellers of other goods always have the alternative, when the price is thought too low, of holding on to them with little additional expense for a better market. (/) The operation of the laws of free competition in railroad, as in other business, is not unattended with possible mischiefs, but they are infinitely less than would flow from any attempt to dispense with such laws. These mischiefs, so far as prices are concerned, are really reducible to two: (1) There is a possibility that competing roads may combine in order to prevent or mitigate the effects of competition. This in the case of railroads is an imaginary danger only. The combination may, indeed, be made, and sometimes even be absolutely necessary to prevent self-destruction. But the combination must always find its real interest in an increase of traffic by low rates rather than making a large profit by high rates on a decreased traffic. And should an unwise policy (never followed in present times) tempt the imposition of high rates, it would speedily be baffled by the appearance in the field of new roads and new competitors supplied with capital attracted from other less profitable pursuits. That is to say, competition cannot be really escaped by combination in the large businesses which are open to all. Where nature has limited the supply of a commodity, as in the case of mines producing the necessaries of life, coal, etc., a combination among all the proprietors may be made effective in raising the price. This is the case of true monopolies, which railroads are not. Perhaps a practical unification of ownership of all great trunk lines of railway may be brought about and all existing competitions be thus destroyed, and there might not be boldness enough on the part of other capitalists to prompt them to arrange a struggle with the new giant; as is supposed to be true with the great unified interests of sugar and petroleum. But combination on such a scale is without mischief so far as prices are concerned. Self-interest in such cases can SMYTH v. AMES. 509 Mr. Carter’s Argument for Appellees. be promoted only by tempting an increase of consumption by offering the lowest possible price. (2) The other possible mischief is the conversion of open into secret competition; that is by secretly obtaining traffic by giving to some better terms than to others. This is exhibited in the paying of rebates, or making special private contracts, and thus giving to some advantages not shared by all. Sometimes this practice is entirely proper and hurts no one, indeed benefits all; as in the case where shippers of bulky articles like lumber may be induced to withhold shipments until the winter season, when other traffic is slack, and not send it when the roads are crowded. The case is different, however, when secret bargains are made merely to carry traffic for one shipper at lower rates than for others. This is an unqualified abuse and public and private outrage. It is the last resort in a desperate and deadly competition. All railroad managers abominate it; but there is no rectitude which will not submit to it rather than die. In respect to both these possible mischiefs the law provides protection. Both practices are, when not justified by reasonable and fair purposes, crimes, and punishable as such. It may be said that they are often not easy to be discovered, and therefore, that the criminal law is not a sure safeguard; but this is, to a greater or less degree, the case with all crimes. The fear of punishment will be sufficient to restrain within moderate limits the commission of the offence. It can never become general; and so can never defeat the general beneficent operation of free competition. The present general condition of the law on the questions involved in the present controversy is believed to be as follows: 1. That it is within the scope of the legislative power to establish maximum rates for railroad charges. 2. That this power is not unlimited ; and that the ascertainment and declaration of its limits are within the province of the judicial power. 3. What these limits are is as yet an open question except 510 OCTOBER TERM, 1897. Mr. Carter’s Argument for Appellees. in one particular; namely, the regulations must be reasonable. 4. That they transcend this limit and become unreasonable, whenever they operate so as to take away the property of the railroad companies. 5. What rules or principles must be observed in the framing of maximum rates in order to make them reasonable, other than the one above mentioned, that they must not take away property, is as yet an open question. 6. In particular, the question whether they are not unreasonable, if they impair a contract between the railroad companies and the State, and take away rights resting in contract is an open question. 7. What rights, resting in contract, railroad companies have, as against the State, is an open question. 8. Whether the State can determine by legislation the reasonable value of railroad service as between railroad and shipper, so as to oust, or to cripple, the jurisdiction of the courts to determine, in some form, that reasonable value is an open question. Reagan v. The Farmers1 Loan de Trust Co., 154 U. S. 362; St. Louis & San Francisco Railway v. Gill, 156 U. S. 649. It is believed that the present legislation is clearly shown by the proofs in this case to be invalid within the principles already established by this court. The rates are unreasonable because they take away property without due process of law; and, therefore, it is not necessary to determine either of the points above mentioned as being still open. But, at the same time, it is true that those points are directly raised and involved, and a discussion of them is relevant, and cannot with propriety be passed. I. The business of a common carrier of goods at all times before the introduction of railroads, and ever since, has been the carriage of goods for hire. The law attached to this business the duty on the part of the carrier to carry all goods which any one might require him to carry. It gave him a corresponding right to charge for his services a reasonable compensation. What was in fact a reasonable compensation SMYTH v. AMES. 511 Mr. Carter’s Argument for Appellees. is, from its very nature, a judicial question, and has always been so treated. The carrier had, in addition, the common right of all citizens, to agree with his customer concerning the amount of his reward. In cases of such agreement, the question of reasonableness would necessarily disappear. IL One can become a carrier by railroad only by the permission of the State. What the rights of such a carrier are, as against the State, depend upon the terms of his contract with the State by which he acquires the right. Under our system, which allows all to construct and operate railroads upon the same terms, the contract is made by a public offer, and its acceptance, by performing the consideration. III. The nature of the right gained by the acceptance of such offers is ascertained by the simple inquiry what the offer is. In the case of a railroad, where there are no special conditions or limitations modifying the substance of the offer, (and in general, and in our particular cases, there are none,) the offer is of the right to carry on (with the structure) the business of a common carrier as it is ordinarily carried on. And to whatever conditions, either by way of legislative regulation, or otherwise, that business is ordinarily subject, it becomes subject when acquired by a railroad carrier in the manner above pointed out; and it becomes subject, undoubtedly, to such further governmental regulation as the new instrumentality employed may, in the public interest, reasonably require. IV. In the discussions, judicial as well as forensic, concerning the power of state legislatures to regulate railroad rates and other similar charges, while the existence of the power has been affirmed, the nature of the power, the place to which it is assignable in the just scheme of government, and the conditions under which it may properly be exercised, have not received the attention to which they are entitled. References have been made to certain employments, such as those of millers, bakers, ferrymen, innkeepers, etc., the charges in which have been made from time to time from an early period the subjects of legislative regulation, and it has been impliedly 512 OCTOBER TERM, 1897. Mr. Carter’s Argument for Appellees. accepted as law, that these employments are, under all circumstances, subject to the interference of government, while other employments and businesses are not; but the reasons why this should be. so have not been fully sifted. It is time that this element, which has served as the foundation of the most momentous conclusions, should be scrutinized and measured. We affirm the moderate proposition that the governmental power upon which alone this class of regulations can be defended is the police power. J/unn v. Illinois, 94 U. S. 113,125. V. This is not an exercise of the police power at all, and is therefore a nullity. VI. This legislation is unconstitutional. First, because it takes away the contract rights granted to, and vested in, the railroad companies by the public contracts under which they expended their capital in the construction of their roads. Second, because it immediately takes away the property of those companies without compensation, and without due process of law. Third, because it denies to them the equal protection of the laws. VII. This whole controversy may be made to turn upon another single proposition, based substantially upon the same grounds, but differing in form from those already asserted; namely, the rates established by the act are not maximum rates, such as the legislature had power to establish. VIII. The Nebraska act is invalid and void within the principles now fully recognized by this court for the reason that while on its face it pretends to regulate rates on Nebraska business alone it necessarily affects the business done in other States, and the rates of that business. Rates so regulated are, in very absolute sense, unreasonable. IX. The business of transportation by rail in Nebraska consists in the performance of innumerable distinct items of carriage service for an innumerable number of persons and under every diversity of circumstance affecting the question of reasonable price for the service. It is submitted that the legislature of that State cannot, in any single instance, impose a rate which would preclude the railroad from a recovery before a court and jury of what the court and jury might find SMYTH v. AMES. 513 Mr. Carter’s Argument for Appellees. to be the reasonable value of that service. This act utterly denies that right. X. No one can deny, in view of the uniform decisions of this court, and especially in view of the last one on this subject, that the power of a state legislature to establish rates is not unlimited, but is subject to some sort of review in the courts. Upon any view of the province of the courts this act is invalid. XI. The present condition of the decisions of this court upon the question of the authority of a legislature to establish maximum rates, leaves open for discussion, to say the least, every proposition advanced by me. No judgment of this court is opposed to any of them ; and the manifest tendency of the later decisions is to support them all. XII. When the above questions are properly settled, our law in respect to maximum rates for railroad and other services will be brought into a more consistent form, which will at once secure individual rights and not unduly limit legislative powers; and then the propositions, which I have endeavored to support, will be found to be just. XIII. But without solving any of the questions above asserted as open, and upon the law as now established, the Nebraska act is unconstitutional and invalid for the reason that the rates are so low as to leave no real compensation to the railroads, and amount, therefore, to a taking of property without due process of law, and to a denial to the railroads of the equal protection of the laws. In conclusion Mr. Carter, after reviewing the cases, submitted the following as to the questions decided, and the questions left open. A. Points determined by the lines of decisions. 1. That in the absence of provisions in the charters constituting contracts between the State and the company limiting the legislative power in respect to rates, the legislature has the power to fix maximum rates. 2. That this legislative power is not unlimited, and that it does not extend so far as to permit rates to be established VOL. CLXIX—33 514 OCTOBER TERM, 1897. Mr. Carter’s Argument for Appellees. which will yield no return upon the investment and thus practically destroy the property. 3. That the question of what rates are reasonable, and what are unreasonable, is a judicial and not a legislative question. B. Points left open to discussion. 1. What is the nature of the legitimate power which the legislature may exercise upon the subject of rates ? It was in substance declared, in the opinion in Munn v. Illinois, that it was the police power, but the real character of this power and its limitations were not then, and have not since been, much considered. 2. Where there are no express provisions in the charters respecting the amount of rates or the power to fix them, is there any implied grant of a right to charge reasonable rates? Does not the right to take tolls necessarily imply a power to take tolls to some certain amount or to some amount capable of being made certain ? Can we help saying that it is a right to take reasonable tolls ? 3. Can the court, when declaring that rates cannot be fixed at so low a point as to yield no return, because that wrould be a taking of property, stop at that point ? If taking all profit is a destruction of property, does that destruction begin there? Does it not begin when the profit is reduced to a very small amount ? And, therefore, is it not necessary to fix a point at which destruction begins, and can it be fixed anywhere except at the point of reasonableness ? Tendency of this line of decision. It is very plain that there has been a regular progress thus far, entirely in harmony with constitutional doctrine. It is clearly developed by limiting the decisions to the actual circumstances of the cases decided, and treating the language of opinions with the liberality which a true criticism enjoins. The progress is as follows : 1. The question first presented was whether the legislature had any power whatever to deal with rates. This was decided in the affirmative. SMYTH v. AMES. 515 Opinion of the Court. 2. When the question was made whether provisions in charters not granting the right to specific rates, but permitting companies to fix reasonable rates, a decision was not compelled, because the proofs did not show the statutory rates to be unreasonable. Opinions differed. 3. When the suggestion was first pressed whether those judges who sanctioned the fullest exercise of legislative power would allow no limit to it, some of them, including Waite, C. J., himself, answered that the power did have its limitations; and when the question was first squarely made the majority held that it was limited. 4. When cases have been presented in which it was claimed that the rates were unreasonably low, but not clearly shown to be so, the court has declined to interfere. 5. When cases have been presented where the rates did not allow any substantial return on the capital, it has been unanimously held that the limit had been reached and passed, and the laws were held invalid. 6. The case seems not yet to have arisen where the rates were proved to reduce returns to a clearly unreasonable point, although not taking away all profit. 7. In recent cases the question has been mooted, and repeated in the very last decision, whether there is not an implied right under all charters to reasonable rates. Whenever this question presents itself in a manner not to be avoided, the affirmative will be found to be the only decision to which the foregoing tendencies lead, or which constitutional law can sanction. Mr. Justice Harlan, after stating the case as above reported, delivered the opinion of the court. The first question to be considered is one common to all the cases. While it was not objected at the argument that there had been any departure from the 94th Equity Rule, it was contended that the plaintiffs had an adequate remedy at law, and that the Circuit Court of the United States, sitting in equity, was therefore without jurisdiction. This objection is 516 OCTOBER TERM, 1897. Opinion of the Court. based upon the fifth section of the Nebraska statute authorizing any railroad company to show, in a proper action brought in the Supreme Court of the State, that the rates therein prescribed are unreasonable and unjust and, if that court found such to be the fact, to obtain an order upon the Board of Transportation permitting the rates to be raised to any sum in the discretion of that Board, provided that in no case should they be fixed at a higher sum than was charged by the company on the first day of January, 1893. This section, it is contended, took from the Circuit Court of the United States its equity jurisdiction in respect of the rates prescribed and required the dismissal of the bills. We cannot accept this view of the equity jurisdiction of the Circuit Courts of the United States. The adequacy or inadequacy of a remedy at law for the protection of the rights of one entitled upon any ground to invoke the powers of a Federal court, is not to be conclusively determined by the statutes of the particular State in which suit may be brought. One who is entitled to sue in the Federal Circuit Court may invoke its jurisdiction in equity whenever the established principles and rules of equity permit such a suit in that court; and he cannot be deprived of that right by reason of his being allowed to sue at law in a state court on the same cause of action. It is true that an enlargement of equitable rights arising from the statutes of a State may be administered by the Circuit Courts of the United States. Case of Brodericld s Will, 21 Wall. 503, 520; Holland v. Challen, 110 U. S. 15, 24; Dick n. Foraker, 155 U. S. 404, 415; Bardon v. Land db Biver Imp. Co., 157 U. S. 327, 330; Rich v. Braxton, 158 U. S. 375, 405. But if the case in its essence be one cognizable in equity, the plaintiff—the required value being in dispute — may invoke the equity powers of the proper Circuit Court of the United States whenever jurisdiction attaches by reason of diverse citizenship or upon any other ground of Federal jurisdiction. Payne n. Hook, 7 Wall. 425, 430 ; UcConihay v. Wright, 121 U. S. 201, 205. A party by going into a national court does not, this court has said, lose any right or appropriate remedy of which he SMYTH v. AMES. 517 Opinion of the Court. might have availed himself in the state courts of the same locality; that the wise policy of the Constitution gives him a choice of tribunals. Davis v. Gray, 16 Wall. 203, 221; Cowley v. Northern Pacific Railroad, 159 U. S.-569, 583. So, “ whenever a citizen of a State can go into the courts of a State to defend his property against the illegal acts of its officers, a citizen of another State may invoke the jurisdiction of the Federal courts to maintain a like defence. A State cannot tie up a citizen of another State, having property rights within its territory invaded by unauthorized acts of its own officers, to suits for redress in its own courts.” Reagan v. Farmers* Loan c& Trust Co., 154 U. S. 362, 391; Mississippi Mills v. Cohn, 150 U. S. 202, 204; Cowles v. Mercer Co., 7 Wall. 118; Lincoln County v. Luning, 133 U. S. 529 ; Scott v. Neely, 140 U. S. 106; Chicot County v. Sherwood, 148 U. S. 529; Cates n. Allen, 149 U. S. 451. In these cases the plaintiffs, stockholders in the corporations named, ask a decree enjoining the enforcement of certain rates for transportation upon the ground that the statute prescribing them is repugnant to the Constitution of the United States. Under the principles which in the Federal system distinguish cases in law from those in equity, the Circuit Court of the United States, sitting in equity, can make a comprehensive decree covering the whole ground of controversy and thus avoid the multiplicity of suits that would inevitably arise under the statute. The carrier is made liable not only to individual persons for every act, matter or thing prohibited by the statute, and for every omission to do any act, matter or thing required to be done, but to a fine of from one thousand to five thousand dollars for the first offence, from five thousand to ten thousand dollars for the second offence, from ten thousand to twenty thousand dollars for the third offence, and twenty-five thousand dollars for every subsequent offence. The transactions along the line of any one of these railroads, out of which causes of action might arise under the statute, are so numerous and varied that the interference of equity could well be justified upon the ground that a general decree, according to the prayer of the bills, would avoid a multiplicity 518 OCTOBER TERM, 189?. Opinion of the Court. of suits, and give a remedy more certain and efficacious than could be given in any proceeding instituted against the company in a court of law; for a court of law could only deal with each separate transaction involving the rates to be charged for transportation. The transactions of a single week would expose any company questioning the validity of the statute to a vast number of suits by shippers, to say nothing of the heavy penalties named in the statute. Only a court of equity is competent to meet such an emergency and determine, once for all and without a multiplicity of suits, matters that affect not simply individuals, but the interests of the entire community as involved in the use of a public highway and in the administration of the affairs of the quasi-public corporation by which such highway is maintained. Another question of a preliminary character must be here noticed. The answer of the officers of the State in each case insists that the real party in interest is the State, and that these suits are, in effect, suits against the State, of which the Circuit Court of the United States cannot take jurisdiction consistently with the Eleventh Amendment of the Constitution of the United States. This point is, perhaps, covered by the general assignments of error, but it was not discussed at the bar by the representatives of the State Board. It would therefore be sufficient to say that these are cases of which, so far as the plaintiffs are concerned, the Circuit Court has jurisdiction not only upon the ground of the diverse citizenship or alienage of the parties, but upon the further ground that, as the statute of Nebraska under which the State Board of Transportation proceeds is assailed as being repugnant to rights secured to the plaintiffs by the Constitution of the United States, the cases may be regarded as arising under that instrument. But to prevent misapprehension, we add that, within the meaning of the Eleventh Amendment of the Constitution, the suits are not against the State but against certain individuals charged with the administration of a state enactment, which, it is alleged, cannot be enforced without violating the constitutional rights of the plaintiffs. It is the settled doctrine of this court that a suit against individuals for SMYTH v. AMES. 519 Opinion of the Court. the purpose of preventing them as officers of a State from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the State within the meaning of that Amendment. Pennoyer v. UcConnaugliy, 140 U. 8. 1, 10; In re Tyler, 149 U. S. 164, 190; Scott v. Donald, 165 IT. S. 58, 68; Tindal v. Wesley, 167 U. S. 204, 220. An important question is presented that relates only to the Union Pacific Company. That company is a corporation formed by the consolidation of several companies under the authority of acts of Congress, one of the constituent companies being the Union Pacific Railroad Company incorporated by the act of July 1, 1862, c. 120, 12 Stat. 489. United States v. Union Pacific Railway, 160 U. S. 1, 6. Neither that company nor the Union Pacific Railroad Company is named in the Nebraska statute, but the statute is interpreted by the State Board of Transportation as embracing the present defendant corporation. It is contended that the State is without power to fix or limit the rates that the Union Pacific Company may charge for the transportation of freight on its lines between points within Nebraska. This contention rests: 1. Upon the provisions of the acts of Congress showing that the Union Pacific Railroad Company was created for the accomplishment of national objects, namely, to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores of the United States; 2. Upon the eighteenth section of the above act of July 1, 1862, 12 Stat. 489, 497, c. 120, providing that “ whenever it appears 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 be paid to the United States, Congress may reduce the rates of fare thereon, if unreasonable in amount, and may fix and establish the same by law.” The argument is that Congress by this enactment has reserved to itself exclusive control of rates, interstate and local, to be charged on the Union Pacific Railroad. As this view, if maintained, would require 520 OCTOBER TERM, 1897.« Opinion of the Court. an affirmance of the decree so far as the Union Pacific Company is concerned, whether the Nebraska statute of 1893 be constitutional or not as to the other railroad corporations, it cannot properly be passed without examination. In Reagan v. Mercantile Trust Co., 154 U. S. 413, 416, the question arose whether the Texas and Pacific Railway Company, a corporation organized under the laws of the United States, was subject to the laws of Texas with respect to rates for transportation wholly within that State. The ground upon which exemption from state control was there asserted by the company was that it received all its franchises from Congress, including the franchise to charge and collect tolls. This court, conceding, for the purposes of that case, that Congress had power to remove the corporation in all its operations from state control, held that the act creating it did not show an intention upon the part of Congress to exempt it from the duty to conform to such reasonable rates for local transportation as the State might prescribe, and that the enforcement by the State of reasonable rates for such transportation would not disable the corporation from performing the duties and exercising the powers imposed upon it by Congress. The court said: “ By the act of incorporation Congress authorized the company to build its road through the State of Texas. It knew that, when constructed, a part of its business would be the carrying of persons and property from points within the State to other points also within the State, and that in so doing it would be engaged in a business, control of which is nowhere by the Federal Constitution given to Congress. It must have been known that, in the nature of things, the control of that business would be exercised by the State, and if it deemed that the interests of the nation and the discharge of the duties required on behalf of the nation from this corporation demanded exemption in all things from state control, it would unquestionably have expressed such intention in language whose meaning would be clear. Its silence in this respect is satisfactory assurance that, in so far as this corporation should engage in business wholly within the State, it intended that it should be subjected to the ordinary control SMYTH v. AMES. 521 Opinion of the Court. exercised by the State over such business. Without, therefore, relying at all upon any acceptance by the railroad corporation of the act of the legislature of the State, passed in 1873 in respect to it, we are of opinion that the Texas and Pacific Railway Company is, as to business done wholly within the State, subject to the control of the State in all matters of taxation, rates and other police regulations.” This conclusion, as may be observed from the opinion, was based in part upon the reasoning in Thomson v. Pacific Railroad, 9 Wall. 579, and in Railroad Company v. Peniston, 18 Wall. 5, in which cases it was held that the property of certain railroad companies was not exempt from state taxation by reason alone of the fact that they were organized under acts of Congress for the accomplishment of national objects, and that the imposition of such taxes was not, in a constitutional sense, an obstruction to the exercise of the powers of the General Government, nor an interference with the discharge of the duties required of the companies by their charters. In the present case the question is more difficult of solution by reason of the declaration in the above act of July 1, 1862 (no similar declaration being made in the act incorporating the Texas and Pacific Railway Company), that Congress may reduce the rates of fare on the Union Pacific Railroad if unreasonable in amount, and may fix and establish the same by law whenever the net earnings of the entire road and telegraph, ascertained upon a named basis, should exceed ten per centum upon its cost, exclusive of the five per centum to be paid to the United States. Undoubtedly Congress intended by that act to reserve such power as was necessary to prevent the corporation from exacting rates that were unreasonable. But this is not equivalent to a declaration that the States through which the railroad might be constructed should not regulate rates for transportation begun and completed within their respective limits. It cannot be doubted that the making of rates for transportation by railroad corporations along public highways, 522 OCTOBER TERM, 1897. Opinion of the Court. between points wholly within the limits of a State, is a subject primarily within the control of that State. And it ought not to be supposed that Congress intended that, so long as it forbore to establish rates on the Union Pacific Railroad, the corporation itself could fix such rates for transportation as it saw proper independently of the right of the States through which the road was constructed to prescribe regulations for transportation beginning and ending within their respective limits. On the contrary, the better interpretation of the act of July 1, 1862, is that the question of rates for wholly local business was left under the control of the respective States through which the Union Pacific Railroad might pass, with power reserved to Congress to intervene under certain circumstances and fix the rates that the corporation could reasonably charge and collect. Congress not having exerted this power, we do not think that the national character of the corporation constructing the Union Pacific Railroad stands in the way of a State prescribing rates for transporting property on that road wholly between points within its territory. Until Congress, in the exercise either of the power specifically reserved by the eighteenth section of the act of 1862 or its power under the general reservation made of authority to add to, alter, amend or repeal that act, prescribes rates to be charged by the railroad company, it remains with the States through ■which the road passes to fix rates for transportation beginning and ending within their respective limits. We are now to inquire whether the Nebraska statute is repugnant to the Constitution of the United States. By the Fourteenth Amendment it is provided that no State shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. That corporations are persons within the meaning of this Amendment is now settled. Santa Clara County n. Southern Pacific Railroad, 118 U. S. 394, 396 ; Charlotte, Columbia cfe Augusta Railroad V. Gibbes, 142 U. S. 386, 391; Gulf, Colorado & Santa Fe Railway v. Ellis, 165 U. S. 150,154. What amounts to deprivation of property without due process of law or what is a denial of the equal SMYTH v. AMES. 523 Opinion of the Court. protection of the laws is often difficult to determine, especially where the question relates to the property of a quasi public corporation and the extent to which it may be subjected to public control. But this court, speaking by Chief Justice Waite, has said that, while a State has power to fix the charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by valid contract, or unless what is done amounts to a regulation of foreign or interstate commerce, such power is not without limit; and that, “ under pretence of regulating fares and freights, the State cannot require a railroad corporation to carry persons or property without reward, neither can it do that which in law amounts to the taking of private property for public use without just compensation, or without due process of law.” Railroad Commission Cdses, 116 U. S. 307, 325, 331. This principle was recognized in Dow v. Beidel-man, 125 U. S. 680, 689, and has been reaffirmed in other cases. In Georgia Railroad <& Banking (Jo. v. Smith, 128 U. S. 174, 179, it was said that the power of the State to prescribe the charges of a railroad company for the carriage of persons and merchandise within its limits — in the absence of any provision in the charter of the company constituting a contract vesting it with authority over those matters — was “subject to the limitation that the carriage is not required without reward, or upon conditions amounting to the taking of property for public use without just compensation; and that what is done does not amount to a regulation of foreign or interstate commerce.” In Chicago, Milwaukee & St. Paul Railway v. Minnesota, 134 U. S. 418, 458, it was said: “If the company is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law and in violation of the Constitution of the United States; and in so far as it is thus deprived, while other persons are permitted to receive reasonable profits upon their invested capital, the company is deprived of the equal protec- 524 OCTOBER TERM, 1897. Opinion of the Court. tion of the laws.” In Chicago Grand Trunk Railway v. Wellman, 143 U. S. 339, 344, the court, in answer to the suggestion that the legislature had no authority to prescribe maximum rates for railroad transportation, said that “the legislature has power to fix rates, and the extent of judicial interference is protection against unreasonable rates.” In Budd v. New York, 143 U. S. 517, 547, the court, while sustaining the power of New York by statute to regulate charges to be exacted at grain elevators and warehouses in that State, took care to state, as a result of former decisions, that such power was not one “to destroy or a power to compel the doing of the services without reward, or to take private property for public use without just compensation or without due process of law.” In Reagan v. Farmers' Loan & Trust Co., 154 IT. S. 362, 399, which involved the validity of certain rates for freights and passengers prescribed by a railroad commission established by an act of the legislature of Texas, this court, after referring to the above cases, said : “ These cases all support the proposition that while it is not the province of the courts to enter upon the merely administrative duty of framing a tariff of rates for carriage, it is within the scope of judicial power and a part of judicial duty to restrain anything which, in the form of a regulation of rates, operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property. There is nothing new or strange in this. It has always been a part of the judicial function to determine whether the act of one party (whether that party be a single individual, an organized body or the public as a whole) operates to divest the other party of any rights of person or property. In every constitution is the guarantee against the taking of private property for public purposes without just compensation. The equal protection of the laws which, by the Fourteenth Amendment, no State can deny to the individual, forbids legislation, in whatever form it may be enacted, by which the property of one individual is, without compensation, wrested from him for the benefit of another, or of the SMYTH v. AMES. 525 Opinion of the Court. public. This, as has been often observed, is a government of law, and not a government of men, and it must never be forgotten that under such a government, with its constitutional limitations and guarantees, the forms of law and the machinery of government, with all their reach and power, must in their actual workings stop on the hither side of the unnecessary and uncompensated taking or destruction of any private property, legally acquired and legally held. It was, therefore, within the competency of the Circuit Court of the United States for the Western District of Texas, at the instance of the plaintiff, a citizen of another State, to enter upon an inquiry as to the reasonableness and justice of the rates prescribed by the railroad commission. Indeed, it was in so doing only exercising a power expressly named in the act creating the commission.” So, in St. Louis <& San Francisco Railway v. Gill, 156 U. S. 649, 657, it was said that “ there is a remedy in the courts for relief against legislation establishing a tariff of rates which is so unreasonable as to practically destroy the value of property of companies engaged in the carrying business, and that especially may the courts of the United States treat such a question as a judicial one, and hold such acts of legislation to be in conflict with the Constitution of the United States, as depriving the companies of their property without due process of law, and as depriving them of the equal protection of the laws.” In Covington & Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 584, 594-5, 597, which involved the validity of a state enactment prescribing rates of toll on a turnpike road, the court said : “ A statute which, by its necessary operation, compels a turnpike company, when charging only such tolls as are just to the public, to submit to such further reduction of rates as will prevent it from keeping its road in proper repair, and from earning any dividends whatever for stockholders, is as obnoxious to the Constitution of the United States as would be a similar statute relating to the business of a railroad corporation having authority, under its charter, to collect and receive tolls for passengers and freight.” And in Chicago, Burlington de Quincy Railroad v. Chicago, 526 OCTOBER TERM, 1897. Opinion of the Court. 166 U. S. 226, 241, it was held that “ a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States, and the affirmance of such judgment by the highest court of the State is a denial by that State of a right secured to the owner by that instrument.” In view of the adjudications these principles must be regarded as settled : 1. A railroad corporation is a person within the meaning of the Fourteenth Amendment declaring that no State shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. 2. A state enactment, or regulations made under the authority of a state enactment, establishing rates for the transportation of persons or property by railroad that will not admit of the carrier earning such compensation as under all the circumstances is just to it and to the public, would deprive such carrier of its property without due process of law and deny to it the equal protection of the laws, and would therefore be repugnant to the Fourteenth Amendment of the Constitution of the United States. 3. While rates for the transportation of persons and property within the limits of a State are primarily for its determination, the question whether they are so unreasonably low as to deprive the carrier of its property without such compensation as the Constitution secures, and therefore without due process of law, cannot be so conclusively determined by the legislature of the State or by regulations adopted under its authority, that the matter may not become the subject of judicial inquiry. The cases before us directly present the important question last stated. Before entering upon its examination, it may be observed that the grant to the legislature in the constitution of he- SMYTH v. AMES. 527 Opinion of the Court. braska of the power to establish maximum rates for the transportation of passengers and freight on railroads in that State has reference to “ reasonable” maximum rates. These words strongly imply that it was not intended to give a power to fix maximum rates without regard to their reasonableness. Be this as it may, it cannot be admitted that the power granted may be exerted in derogation of rights secured by the Constitution of the United States, or that the judiciary may not, when its jurisdiction is properly invoked, protect those rights. What are the considerations to which weight must be given when we seek to ascertain the compensation that a railroad company is entitled to receive, and a prohibition upon the receiving of which may be fairly deemed a deprivation by legislative decree of property without due process of law ? Undoubtedly that question could be more easily determined bv a commission composed of persons whose special skill, observation and experience qualifies them to so handle great problems of transportation as to do justice both to the public and to those whose money has been used to construct and maintain highways for the convenience and benefit of the people. But despite the difficulties that confessedly attend the proper solution of such questions, the court cannot shrink from the duty to determine whether it be true, as alleged, that the Nebraska statute invades or destroys rights secured by the supreme law of the land. No one, we take it, will contend that a state enactment is in harmony with that law simply because the legislature of the State has declared such to be the case ; for that would make the state legislature the final judge of the validity of its enactment, although the Constitution of the United States and the laws made in pursuance thereof are the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. Art. VI. The idea that any legislature, state or Federal, can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions. The duty rests upon all courts, Federal and state, when their 528 OCTOBER TERM, 1897. Opinion of the Court. jurisdiction is properly invoked, to see to it that no right secured by the supreme law of the land is impaired or destroyed by legislation. This function and duty of the judiciary distinguishes the American system from all other systems of government. The perpetuity of our institutions and the liberty which is enjoyed under them depend, in no small degree, upon the power given the judiciary to declare null and void all legislation that is clearly repugnant to the supreme law of the land. We turn now to the evidence in the voluminous record before us for the purpose of ascertaining whether — looking at the cases in the light of the facts as they existed when the decrees were rendered — the Nebraska statute, if enforced, would, by its necessary operation, have deprived the companies, whose stockholders and bondholders here complain, of the right to obtain just compensation for the services rendered by them. The first and most important contention of the plaintiffs is that, if the statute had been in force during any one of the three years preceding its passage, the defendant companies would have been compelled to use their property for the public substantially without reward or without the just compensation to which it was entitled. We think this mode of calculation for ascertaining the probable effect of the Nebraska statute upon the railroad companies in question is one that may be properly used. The conclusion reached by the Circuit Court was that the reduction made by the Nebraska statute in the rates for local freight was so unjust and unreasonable as to require a decree staying the enforcement of such rates against the companies named in the bill. Ames v. Union Pacific Railway, 64 Fed. Rep. 165, 189. That conclusion was based largely upon the figures presented by Mr. Dilworth, while he was a secretary of the State Board of Transportation, as well as a defendant and one of the solicitors of the defendants in these causes. He was a principal witness for that Board. His general fairness and his competency to speak of the facts upon which the question before us depends are apparent on the record. He stated that the average reduction made by the statute on all the “commodities of local rates” was 29.50 per cent; and this SMYTH v. AMES. 529 Opinion of the Court. estimate seems to have been accepted by the parties as correct. He estimated that the percentage of operating expenses on local business would exceed the percentage of operating expenses on all business by at least ten per cent, and that it might go as high as twenty per cent or higher. And this view is more than sustained by the evidence of witnesses possessing special knowledge of railroad transportation and of the cost of doing local business as compared with what is called through business. Indeed, one of those witnesses states that the cost of carrying local freight is four times as much as the cost of through freight per ton per mile; another, that the cost of the short haul is “ reasonably double the long haul.” If due regard be had to the testimony — and we have no other basis for our judgment — we are not permitted to place the extra cost of local business at less than ten per cent greater than the percentage of the cost of all business. In answer to questions propounded to him by the defendants constituting the State Board of Transportation, Mr. Dilworth stated that he had prepared himself with an estimate showing the number of tons of freight, commonly spoken of as local freight, hauled on the respective railways in Nebraska, and the amount received by the railway companies by way of tariff on tons of freight hauled, including through as well as local freight, and was qualified to speak as to the amount received by the companies for both passengers and freight within the State, and the reduction that would take place in rates under the statute in question. He presented various tables showing the results of his investigations. One is known as Exhibit 4, and is an “Estimate of local business, and the effect of House Roll 33 ” on the Burlington, St. Paul, Fremont, Union Pacific, Omaha, St. Joseph and Kansas City Companies for the year 1892. Another is called Exhibit 19, and is a like estimate in respect of the same companies for the years 1891 and 1893. Another is known as Exhibit 20, and shows “ Tons carried, tonnage per mile and percentage of expenses for the years ending June 30, 1891,1892 and 1893 (Nebraska).” These exhibits are as follows : VOL. CLXIX—34 530 OCTOBER TERM, 1897. Opinion of the Court. Exhibit “4. Per cent of reduction on all business done in the State by H. E. 83. .044 .047 .047 .022 .022 .030 .011 Total amount realized on all business done in the State. $7,908,242 763,509 2,093,687 5,262,057 1,261,294 287,478 166,653 Amount received for freight hauled in Nebraska including through and local. $5,538,766 472,051 1,495,468 4,284,793 955,626 216,395 125,530 Amount received from passenger business. $2,369,714 263,458 598,219 977,264 305,668 71,083 41,123 Total amount of reduction caused by H. E. 88. $365,175 36,294 99,310 117,487 26,043 8,836 1,889 Total amount received for tons hauled locally. $1,237,884 123,033 336,714 398,262 88,335 31,004 6,630 Average amount received for each ton hauled. $2.15416 1.87089 2.12633 2.06498 1.38026 .63051 .61261 Number of tons hauled locally. 574,653 65,762 158,350 192,865 63,999 39,657 10,823 1892. Burlington Co. . St. Paul Co. . . Premont Co.. . Union Pacific Co. Omaha Co. . . St. Joseph Co. . Kansas City Co. SMYTH V. AMES. Opinion of the Court. sai ci h •H H » «0 « « O Ö Si 'S g 8 g ¿î g S ** 'S S S o 8 CQ Qi °0 ’S ® «5 J g M o' w £> S O 8 £ s Ö co co 0) .£ S 8 95 O e? 95 8 i 'S ® *£ _ S ® CO ° S^'Sco +j o^ » . g a «æpâ 0.2 ” ® • »ogSM i SÏ « b. PhÄ «5_n g,O .05 .044 .036 .015 .025 .024 .018 .042 .045 .041 .020 .019 .027 .015 Total amount received on all business done in the State. $6,264,061 731,734 2,845,825 5,301,108 891,964 264,565 109,783 8,554,920 917,644 3,053,283 5,865,081 1,220,113 362,912 177,491 Amount received from freight carried in Nebraska including local and through. $3,942,078 506,470 1,969,242 3,791,849 580,834 178,529 67,946 5,973,356 650,109 2,237,044 4,313,204 887,616 263,516 135,824 Amount received from passenger business. $2,321,983 225,264 876,583 1,509,331 311,130 86,036 41,837 2,581,564 267,535 816,239 1,551,877 332,497 99,396 41,667 Total amount of reduction caused by H. K. 83. $314,726 37,725 102,780 82,072 22,296 6,245 1,985 366,512 42,049 125,208 122,045 23,753 9,971 2,786 Total amount received per ton [for tons] carried locally. $1,066,871 110,933 348,408 278,211 75,581 21,817 6,732 v 1,242,416 142,542 424,437 413,714 80,519 38,802 9,445 Average amount received per each ton hauled. $1.98 1.72 2.47 1.83 1.23 .87 .77 2.13 1.81 2.26 1.88 1.18 .67 .61 Number of tons hauled locally. 538,824 64,496 141,056 152,028 61,448 25,078 8,743 583,294 78,753 177,804 220,061 68,237 50,452 15,485 . . . d . . . . . . d . . • ° . £ • ° • o O . . o . O O . . Q . o • ° X dS ° 4° d oS . ° 1 £ a § Ü a § | | M co p p Q co W pq æ P P O æ M 532 OCTOBER TERM, 1897. Opinion of the Court. SMYTH v. AMES. 533 Opinion, of the Court. It may be here stated that the words in these exhibits, « number of tons hauled locally,” refer to freight that started and ended in the State ; the words in Exhibit 4, “ amount received for freight hauled in Nebraska, including through and local,” and the like words in Exhibit 19, refer not only to freight starting and ending in the State, but to all freight hauled by the railroad company in Nebraska, regardless of its destination or origin — that is, “freight that begins in the State and goes out of the State, freight that begins out of the State and comes into the State and freight which begins and ends in the State.” The words, “ per cent of reduction on all the business done in the State by House Roll 33,” in Exhibits 4 and 19, mean the percentage of the total amount of all business, passenger and freight, done in the State, whatever its origin or destination, and do not indicate the percentage of reduction on local business when considered alone. It should be stated also that the words, “ percentage of expenses to earnings,” in Exhibit 20, refer to all business, through and local, done by the railroad company within the State. Mr. Dilworth, as we have seen, testified that if the local business alone were considered, the percentage of expenses to earnings upon such business would be at least ten per cent more than the general percentage of expenses to earnings on all business, both through and local. It is important here to note that his estimates are of business from July 1st to the succeeding June 30th. So that when allusion is made presently to his estimates for 1891, 1892 and 1893, it will be understood to refer to the years ending the 30th days of June, 1891, 1892 and 1893, respectively. From July 1,1890, to June 30, 1891, as shown by Exhibit 20, the percentage of expenses to earnings on all business on the Burlington road was 66.24 ; on the St. Paul road, 70.78; on the Fremont road, 49.87; on the Union Pacific road, 68.94; on the Omaha road, 120.26; on the St. Joseph road, 96.44; and on the Kansas City road, 99.54; From July 1, 1891, to June 30, 1892, as shown by the same Exhibit, the percentage of expenses to earnings on all business on the Burlington road was 64.23; on the St. Paul 534 OCTOBER TERM, 1897. Opinion of the Court. road, 65.96; on the Fremont road, 70.71 ; on the Union Pacific road, 56.44; on the Omaha road, 93.12; on the St. Joseph road, 74.23; and on the Kansas City road, 75.19; and, From July 1, 1892, to June 30, 1893, as shown by the same Exhibit, the percentage of expenses to earnings on all business on the Burlington road was 65.51; on the St. Paul road, 64.58; on the Fremont road, 53.66; on the Union Pacific road, 58.51; on the Omaha road, 94.14; on the St. Joseph road, 62.05 ; and on the Kansas City road, 76.50. In view of the reduction of 29.50 in rates prescribed by the statute and of the extra cost of doing local business, as compared with other business, what do these facts show ? Take the case of the Burlington road from July 1, 1890, to June 30, 1891. Looking at the entire business done on it during that period within the limits of the State, we find that the percentage of operating expenses to earnings on all business — which, as stated, does not include the extra cost of local business — was 66.24. Add to this the extra cost of local business, estimated at at least ten per cent, and the result is that, under the rates charged during the period stated, the cost to the Burlington Company of earning $100 would have been $76.24. Now, if the reduction of 29£ per cent made by the act of 1893 had been in force prior to July 1, 1891, the company would have received $70.50 as against $100 for the same service, showing that in that year the operating expenses would have exceeded the earnings by $5.74 in every $100 of the amount actually received by it. By like calculations, it will appear that each of the railroad companies would have conducted its local business at a loss during the periods stated, except that in the year ending June 30, 1891, and in the year ending June 30, 1893, the earnings of the Fremont Company, and in the years ending the 30th days of June, 1892 and 1893, respectively, the earnings of the Union Pacific Company, would have slightly exceeded their operating expenses. Under the rates prescribed by the act of 1893 the cost to the respective companies of local business in Nebraska would have exceeded the earnings for the years ending June 30, SMYTH v. AMES. 535 Opinion of the Court. 1891,1892 and 1893, respectively, in every one hundred dollars of the amount actually received, as follows : To the Burlington Company, by $5.74, $3.73 and $5.01; to the St. Paul Company, by $10.28, $5.46 and $4.08; to the Omaha Company, by $59.76, $32.62 and $33.64; to the St. Joseph Company, by $35.94, $13.73 and $1.55 ; and to the Kansas City Company, by $39.04, $14.69 and $16. The cost to the Union Pacific Company for the year ending June 30, 1891, of its local business, under the rates prescribed by the statute of 1893, would have caused a loss of $8.44 in every one hundred dollars of the amount actually received. In order to show these results at a glance, the table on page 536 is inserted upon the basis of one hundred as representing the amounts actually charged and received by the respective railroad companies for the years given. There are other views of the case suggested by the above exhibits and table which show the same results. In the year ending June 30, 1891, under the rates then in force, the Burlington Company received $1,066,871 for tons carried locally. If the business had been done under the rates prescribed by the act of 1893, it would have received 29| per cent less, that is, only $752,145 or $314,726 less than it did receive. The percentage of expenses to earnings, including the extra cost of local business, was 76.24; that is, it cost $813,382 to earn $1,066,871. So that the difference between $813,382 and $752,145 shows that, if the rates prescribed by the statute of 1893 had been in force during the year ending June 30, 1891, the amount received would have been less than the operating expenses of the Burlington Company by $61,237. ' During the year ending June 30, 1892, the same company received for tons carried locally $1,237,884. If the act of 1893 had been in force, it would have received, because of the reduced rates prescribed by that act, only $872,709 — less by $365,175 than it did receive. The percentage of expenses to earnings, including the extra cost of local business, was 74.23; that is, the $872,709 would have been earned at a cost of $918,881. So that under the rates prescribed by the act 536 OCTOBER TERM, 1897. Opinion of the Court. Name. Cost by percentage of all business. Extra cost of local business. Total cost of local business. Earnings as reduced by act of 1893. Loss. Gain. 1891. Burlington Company . 66.24 10 76.24 70.50 5.74 St. Paul Company . . 70.78 10 80.78 70.50 10.28 Premont Company . . 49.87 10 59.87 70.50 10.63 Union Pacific Company. 68.94 10 78.94 70.50 8.44 Omaha Company. . . 120.26 10 130.26 70.50 59.76 St. Joseph Company 96.44 10 106.44 70.50 35.94 Kansas City Company . 99.54 10 109.54 70.50 39.04 1892. Burlington Company . 64.23 10 74.23 70.50 3.73 St. Paul Company . . 65.96 10 75.96 70.50 5.46 Premont Company . . 70.71 10 80.71 70.50 10.21 Union Pacific Company. 56.44 10 66.44 70.50 4.06 Omaha Company. . . 93.12 10 103.12 70.50 32.62 St. Joseph Company 74.23 10 84.23 70.50 13.73 Kansas City Company . 75.19 10 85.19 70.50 14.69 1893. Burlington Company . 65.51 10 75.51 70.50 5.01 St. Paul Company . . 64.58 10 74.58 70.50 4.08 Fremont Company . . 53.66 10 ' 63.66 70.50 6.84 Union Pacific Company. 58.51 10 68.51 70.50 • . • 1.99 Omaha Company. . . 94.14 10 104.14 70.50 33.64 St. Joseph Company 62.05 10 72.05 70.50 1.55 Kansas City Company . 76.50 10 86.50 70.50 16.00 of 1893 the loss during the period named would have been $46,172. During the year ending June 30, 1893, that company received $1,242,416 for tons carried locally; whereas, under the 29| per cent reduction prescribed by the statute of that year, it would have received only $875,905, that is, less by $366,512 than it did receive. The percentage of its expenses to earnings in that year, including the extra cost of local business, was 75.51; that is, under the statutory rates $875,905 would have been earned at a cost of $938,147; which would have been a loss of $62,243. SMYTH v. AMES. 537 Opinion of the Court. By the same mode of calculation, it will be found that, if the statute of 1893 had been enforced during the years ending the 30th days of June, 1891, 1892 and 1893, respectively, the other companies would have lost, that is, their expenses would have exceeded their earnings during those years by the following amounts: The St. Paul Company, $11,403, $6716 and $5814; the Fremont Company, $34,377 for the year ending June 30, 1892; the Union Pacific Company, $23,480, for the year ending June 30, 1891; the Omaha Company, $45,166, $28,813 and $27,085; the St. Joseph Company, $7840, $4256 and $523; and the Kansas City Company, $2627, $974 and $1510; while the earnings of the Union Pacific Company would have exceeded its expenses for the years ending the 30th days of June, 1892 and 1893, respectively, by $16,170 and $8234; and those of the Fremont Company by $37,037 and $29,036 for the years ending the 30th days of June, 1891 and 1893, respectively. These results will be seen in the table on page 538, based upon the above exhibits, and assuming that 10 per cent was the very lowest amount of the extra cost of business beginning and ending in the State. Counsel for the appellants contend that the railroad companies in Nebraska derived a profit from their local tonnage of nearly 100 per cent over and above operating expenses. This contention is based upon the evidence given by William Randall, freight and ticket agent as well as auditor of the Burlington road in Nebraska, on his first examination as a witness. He then stated that the earnings of the company for the year 1892 — meaning for the year beginning January 1,1892 — upon freight starting and ending within the State were $1,853,036.59, and that the operating expenses, including taxes, on that business were $972,183.70. These figures, counsel say, show that “ there was a clear profit over operating expenses, including taxes, of nearly one hundred per cent on the local business of the Burlington Company in 1892.” But counsel overlook the fact that, upon his second examination, Mr. Randall stated that his first figures were not correct, and that the operating expenses on local business in 1892 were 538 OCTOBER TERM, 1897. Opinion of the Court. Gain. $ 37,037 16,170 29,036 8,234 . Total expense of local business. $ 813,382 89,611 208,591 219,619 98,451 23,221 7,374 918,881 93,455 271,761 264,605 91,090 26,114 5,648 938,147 106,307 270,193 283,435 83,851 24,354 8,169 Amount to be taken out of earnings to pay 10 per cent extra cost of local business. $ 106,687 11,093 34,840 27,821 7,558 2,181 673 123,788 12,303 33,671 39,826 8,833 3,100 663 124,241 14,254 42,443 41,371 8,051 3,380 944 Amount to be deducted to pay expenses (reckoned by per cent of cost of all business). $ 706,695 78,518 173,751 191,798 90,893 21,040 6,701 795,093 81,152 238,090 224,779 82,257 23,014 4,985 813,906 92,053 227,750 242,064 75,800 20,974 7,225 What would have been received under rates fixed by act of 1893. $ 752,145 78,208 245,628 196,139 53,285 15,381 4,747 872,709 86,739 237,384 280,775 62,277 21,858 4,674 875,904 100,493 299,229 291,669 56,766 23,831 6,659 Total amount of reduction by act of 1893, 29J per cent. $314,726 32,725 102,780 82,072 22,296 6,436 1,985 365,175 36,294 99,330 117,487 26,058 9,146 1,955 366,512 42,049 125,208 122,045 23,753 9,971 2,786 Total amount received for tons carried locally. $1,066,871 110,933 348,408 278,211 75,581 21,817 6,732 1,237,884 123,033 336,714 398,262 88,335 31,004 6,630 co ci r- th cs ci HCO H O th «0 th r- co ei' cf to'o co os H