Y UNITED STATES REPORTS VOLUME 175 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1899 J. C. DAW^ REPORTS® \ V ft | K THE BANKS LAW PUBLISHING CO. 21 MURRAY STREET, NEW YORK 1900 Copyeight, 1899,1900, THE BANKS LAW PUBLISHING CO. 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. JOHN WILLIAM GRIGGS, Attorney General. JOHN KELVEY RICHARDS, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. Hi TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Abbott v. Tacoma Bank of Commerce .... 409 Addyston Pipe and Steel Company v. United States . 211 Adsit, Malony v. .......................• . 281 Ainsa v. New Mexico and Arizona Railroad Company . 76 Ainsa v. New Mexico and Arizona Railroad Company . 91 Amacker, Northern Pacific Railroad Company v. . . 564 American Oak Leather Company, United States Rubber Company v.........................................728 Anglo-Californian Bank u United States ... 37 Angus v. Irvine...................................725 Appleton Water Works Company v. Central Trust Com- pany of New York .................................724 Arkansas Building and Loan Association v. Madden . 269 Atlantic Lumber Company, L. Bucki and Son Lumber Company v. ....... 724 Bacon v. United States............................726 Bancroft-Whitney Company, Pacific Coast Steamship Company v...................................... .724 Bardes v. Hawarden First National Bank . . . 526 Beach, Hobbs v...................................725 Behlmer, Louisville and Nashville Railroad Company v. 648 Bernheimer, Bryan, as Marshal, v. .... 724 Bienville Water Supply Company v. Mobile . . . 109 Blackburn v. Portland Gold Mining Company . .571 Blake and others, In re . ......................114 Bleecker v. Steamship Kensington .... 726 Board of County Commissioners of the County of Ouray v. Geer...........................................728 vi TABLE OF CONTENTS. Table of Cases Reported. PAGE Bolles v. Outing Company..............................262 Bolles and Company v. County of Perry . . .724 Boucher, Markuson v..............................184 Bradfield v. Roberts..................................291 Brady v. Daly....................................148 Briscoe v. Minah Consolidated Mining Company, Limited 727 British-American Assurance Company of Toronto, Can- ada, v. McElroy.....................................728 Brown v. New Jersey...................................172 Bryan, as Marshal, v. Bernheimer . . . . . 724 Buena Ventura, The '................................ 384 Butler v. United States...............................728 Cambria Iron Company, Carnegie Steel Company, Limited, v.........................................727 Canada Sugar Refining Company v. Insurance Company of North America................................609 Carnegie Steel Company, Limited, v. Cambria Iron Company .......................................... 727 Cedar Point Club, Niles v.............................300 Central Thompson-Houston Company v. Kentucky and Indiana Bridge Company . . . . .726 Central Trust Company of New York, Appleton Water Works Company v. . . . . . . . 724 Chandler v. Pomeroy . . . . . . .726 Chaves, United States v...............................509 Chavez v. United States...............................552 Chicago, Milwaukee and St. Paul Railway Company, Hartford Fire Insurance Company v. * . . . 91 City of Helena, Mills, Receiver, v....................726 Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Narramore................................724 Clifford v. Ruempler, Sheriff.........................723 Cole, Eastern Oregon Land Company v, . 727 Comptroller of New York, Scudder v. . . .32 Conroy, New England Railroad Company v. . . . 323 Converse, Knights Templars and Masons’ Life Indem- nity Company v. ..................726 TABLE OE CONTENTS. vii Table of Cases Reported. PAGE Conway, United States v...............................60 Coudert, Administrator, v. United States . . . 178 County of Perry, Bolles and Company y. 724 Cramer, Singer Manufacturing Company v. . . . 725 Cross, King v........................................396 Cumming v. Richmond County Board of Education . 528 Daly, Brady v........................................148 De la Vergne Refrigerating Machine Company v. German Savings Institution............................40 Domestic and Foreign Missionary Society of the Protes- tant Episcopal Church of the United States^ Holly, v. 725 Eastern Oregon Land Company v. Cole . . . 727 Evans, Missouri, Kansas and Texas Railway Company of Texas v........................................723 Ex parte Blake and others..........................• 114 Fayerweather y. Trustees of Amherst College . . 725 Fidelity and Deposit Company of Maryland, Monongahela Coal Company y.............................727 Fidelity Trust and Safety Vault Company of Louis- ville y. Lawrence County, Tennessee . . . 725 Flippin y. Kimball et al., Receivers.................723 Fordyce et al., Receivers, y. Trigg..................723 Galeton Cotton Mills, Huguley Manufacturing Company y. 726 Geer, Board of County Commissioners of the County of Ouray y...............................................728 German Savings Institution, De la Vergne Refrigerating Machine Company y..................................40 Gleason, United States y.............................588 Guido, The...........................................382 Hain y. Weltus....................................... 728 Hamilton y. Rathbone..................................414 Hartford Fire Insurance Company y. Chicago, Milwaukee and St. Paul Railway Company ... 91 viii TABLE OF CONTENTS. Table of Cases Reported. PAGE Hawarden First National Bank, Bardes v. . . . 526 Hays v. United States.................................248 Helena, City of, Mills, Receiver, v...................726 Hobbs v. Beach........................................725 Holly v. Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States..............................................725 Hoopes, Executrix, Pope v.............................728 Horton v. United States............................ .727 Huguley Manufacturing Company v. Galeton Cotton Mills . . . ............................726 Illinois, Keokuk and Hamilton Bridge Company v. . 626 In re Blake and others, Ex parte......................114 Insurance Company of North America, Canada Sugar Refining Company v. ..................................609 Irvine, Angus v.......................................725 Jones v. Meehan . . . ...................1 Kentucky and Indiana Bridge Company, Central Thompson-Houston Company v...............................726 Keokuk and Hamilton Bridge Company v. Illinois . 626 Kimball et al., Receivers, Flippin v. . . . .723 King v. Cross . .................................396 Knights Templars and Masons’ Life Indemnity Company v. Converse . . . . . . . . 726 L. Bucki and Son Lumber Company v. Atlantic Lumber Company.............................................724 La Abra Silver Mining Company v. United States . 423 Lake Erie and Western Railroad Company, Tullis v. . 348 Lawrence County, Tennessee, Fidelity Trust and Safety Vault Company of Louisville v.........................725 Leland v. National Cash Register Company . . .724 Lola, The.............................................677 Louisville and Nashville Railroad Company v. Behlmer 648 McCormick, Seeberger v................................274 TABLE OF CONTENTS. lx Table of Cases Reported. PAGE McElroy, British-American Assurance Company of Toronto, Canada v............................728 Madden, Arkansas Building and Loan Association v. . 269 Malony v. Adsit ........ 281 Markuson v. Boucher.............................184 Meehan, Jones v..................................1 Mills, Receiver, v. City of Helena..............726 Minah Consolidated Mining Company, Limited, Briscoe v...........................................727 Minch, Zorn and Hines v. Steam Tug Victoria . . 725 Missouri, Kansas and Texas Railway Company of Texas v. Evans.................................* . . 723 Mobile, Bienville Water Supply Company v. . . 109 Monongahela Coal Company v. Fidelity and Deposit Company of Maryland.............................727 Narramore, Cleveland, Cincinnati, Chicago and St. Louis Railway Company u ..............................724 National Cash Register Company, Leland v. . . . 724 New England Railroad Company v. Conroy . . . 323 New Jersey, Brown -y. 172 New Mexico and Arizona Railroad Company, Ainsa v. . 76 New Mexico and Arizona Railroad Company, Ainsa v. . 91 New Orleans v. Stempel ....... 309 New Orleans v. Warner...............................120 New York, The.......................................187 Niles v. Cedar Point Club...........................300 Northern Pacific Railroad Company v. Amacker . .564 Outing Company, Bolles v............................262 Pacific Coast Steamship Company v. Bancroft-Whitney Company.........................................724 Paquete Habana, The.................................677 Patrick v. Underwood................................726 Peabody v. United States............................546 Pedro, The........................................ 354 Pena, United States v........................ . 500 Perry, County of, Bolles and Company -y. 724 X TABLE OF CONTENTS. Table of Cases Reported. PAGE Pomeroy, Chandler v...................................726 Pope v. Hoopes, Executrix.............................728 Portland Gold Mining Company, Blackburn v. . . 571 Rathbone, Hamilton v. . ■.........................414 Real de Dolores del Oro v. United States ... 71 Richmond County Board of Education, Cumming v. . 528 Rio Grande Western Railway Company, Telluride Power Transmission Company v.............................639 Roberts, Bradfield v..............................291 Ruempler, Sheriff, Clifford v...................... .723 Scudder v. Comptroller of New York .... 32 Seeberger v. McCormick............................274 Simms v. Simms....................................162 Simms, Simms v.......................... . . .162 Singer Manufacturing Company v. Cramer . . 725 Smithson, Whitcomb v. . 635 Steam Tug Victoria, Minch, Zorn and Hines v. . . 725 Steamship Kensington, Bleecker v. . . . .726 Stempel, New Orleans v. ..............................309 Tacoma Bank of Commerce, Abbott v. . . . . 409 Telluride Power Transmission Company v. Rio Grande Western Railway Company...............................639 Trigg, Fordyce et al., Receivers, v...................723 Trustees of Amherst College, Fayerweather v. . . 725 Tullis v. Lake Erie and Western Railroad Company . 348 Underwood, Patrick v. 726 United States, Addyston Pipe and Steel Company v. . 211 United States, Anglo-Californian Bank u ... 37 United States, Bacon v............................726 United States, Butler v...........................728 United States v. Chaves...........................509 United States, Chavez v...........................552 United States v. Conway . . . . .60 United States, Coudert, Administrator, -y. 178 United States v. Gleason..........................588 TABLE OE CONTENTS. xi Table of Cases Reported. PAGE United States, Hays v..................................248 United States, Horton v................................727 United States, La Abra Silver Mining Company v. . 423 United States, Peabody v. . . . . . . 546 United States v. Pena ............................... 500 United States, Real de Dolores del Oro v. . . .71 United States, Wilkins v...............................727 United States Rubber Company v. American Oak Leather Company ...................................728 Warner, New Orleans v. ............................... 120 Weltus, Hain u ...... 728 Whitcomb v. Smithson...................................635 Wilkins v. United States...............................727 Index .......................................... 729 TABLE OF CASES CITED IN OPINIONS. PAGE Abbott v. National Bank of Commerce, 20 Wash. 552 411 Ackley School District v. Hall, 106 U. S. 428 502 Adam v. Norris, 103 U. S. 594 70 Adams Co. v. Quincy, 130 Ill. 566 140 Admiral, The, 3 Wall. 603 ' 681 Ainsa v. New Mexico &c. Rail- road, 175 U. S. 76 525 Ainsa v. United States, 161 U. S. 208 85 Alabama Ins. Co. v. Nichols, 109 U. S. 232 169 Allemong v. Simmons, 124 Ind. 199 53 Allgeyer v. Louisiana, 165 U. S. 578 228 Amelia, The, 4 Phila. 417 710 American Construction Co. v. Jacksonville Railway, 148 U. S. 372 681, 683 American Fur Co. v. United States, 2 Pet. 358 265 Amiable Nancy, The, 3 Wheat. 546 680 Anderson v. Rider, 46 Cal. 134 142 Anderson v. United States, 171 U. S. 604 243, 244 Arabian, The, 2 Stu. Vice Ad. 72 201 Ard v. Brandon, 156 U. S. 537 567 Argo, The, 1 Spinks, 375; Spinks’ Prize Cas. 52 366, 388 Ariadne, The, 2 Wheat. 143 368 Astiazaran v. Santa Rita Mining Co., 148 U. S. 80 79,86 Atchison v. Byrnes, 22 Kans. 65 130 Atchison &c. Railroad v. Mat- thews, 174 U. S. 96 101, 353 Atlas, The, 93 U. S. 302 209 Aztec Mining Co. v. Ripley, 151 U. S. 79 ' 166 Babcock v. Chicago &c. Railway, 62 Iowa, 593 104 Backus v. Gould, 7 How. 798 265, 266, 267, 268 PAGE Baird v. Livingston, 1 Rob. (La.) 182 128 Baker v. Grice, 169 U. S. 284 186 Baltimore &c. Railroad v. Bahgh, 149 U. S. 368 327, 336, 338, 343, 346 Baltimore &c. Railroad v. Hop- kins, 130 U. S. 210 413 Bamberger v. Schoolfield, 160 U. S. 149 100 Bank of Augusta v. Earle, 13 Pet. 519 100 Bank of Louisiana- v. Williams, 21 La. Ann. 121 128 Banshee, The, 6 Asp. M. L. Cas. 221 208 Barber v. Barber, 21 How. 582 167 Barber Asphalt Paving Co. v. Gogreve, 41 La. Ann. 251 139 Barron v. Baltimore, 7 Pet. 243 174 Barry v. Edmunds, 116 U. S. 550 574 Bate Refrigerating Co. v. Sulz- berger, 157 U. S. 1 421 Bath Co. v. Amy, 13 Wall. 244 119 Bauserman v. Blunt, 147 U. S. 647 108 Beauprd v. Noyes, 138 U. S. 397 280 Beck v. Flournoy Co., 27 U. S. App. 618 24 Belgenland, The, 114 U. S. 355 197 Bend v. Hoyt, 13 Pet. 263 273 Bennett v. Harkrader, 158 U. S. 441 289 Bennett v. P. & O. Steamship Co., 16 C. B. 29 286 Berard v. Boagni, 30 La. Ann. 1125 147 Bergere v. United States, 168' U. S. 66 259 Bermuda, The, 3 Wall. 514 365, 374 Besel v. New York Central &c. Railroad, 70 N. Y. 171 332 Best v. Polk, 18 Wall. 112 10, 19 Betsey, The, 3 Dall. 6 680 Billinghurst v. Spink Co., 5 S. Dak. 84 319 xiii xiv TABLE OE CASES CITED. PAGE Birkenhead, The, 3 W. Rob. 75 201 Blain v. Irby, 25 Kans. 499 318 Blake v. McClung, 172 U. S. 239 116 Block v. Darling, 140 U. S. 234 169 Blue Jacket v. Johnson Co., 3 Kans. 299 29 Bluefield Banana Co. v. Board of Assessors, 49 La. Ann. 43 314 Borgmeyer v. Idler, 159 U. S. 408 586 Boroscale v. Bosworth, 98 Mass. 34 285 Botiller v. Dominguez, 130 U. S. 238 84 Bowman v. Chicago &c. Railway, 125 U. S. 465 231 Bradbury v. Dickens, 27 Beav. 53 52 Brady v. Daly, 175 U. S. 148 264 Brady v. Daly, 51 U. S. App. 621 152 Branch v. United States, 100 U. S. 673 179, 180, 183 Brewster v. Wakefield, 22 How. 118 147 Briggs v. Parkman, 2 Met. 258; S. C. 37 Am. Dec. 89 403 Britannia, The, 153 U. S. 130 206 Brown v. Anderson, 4 Martin (N. 8.), 416 322 Brown®.Maryland, 12Wheat.419 227 Brown v. New Jersey, 175 U. S. 172 723 Brown v. Steele, 23 Kans. 672 30 Brown v. United States, 8 Cranch, 110 710,715 Brush v. Sabula &c. Railroad, 43 Iowa, 554 104 Bucher v. Cheshire Railroad, 125 U. S. 555 100 Buck v. Colbath, 3 Wall. 334 643 Buel v. Van Ness, 8 Wheat. 312 683 Burgess v. Seligman, 107 U. S. 20 108 Burke v. Bunker Hill Mfg. Co., 46 Fed. Rep. 644 576 Burnhisel®. Firman, 22 Wall. 170 147 Burrus, In re, 136 U. S. 586 167 Bushnell v. Crooke Mining Co., 148 U. S. 682 582, 646 Butler v. Mullen, 100 Mass. 453 405 Buttz v. Northern Pacific Railroad, 119 U. S. 55 8, 568 Cadmus v. Jackson, 52 Penn. St. 295 141 California Bank v. Kennedy, 167 U. S. 362 59 California Ins. Co. v. Union Compress Co., 133 U. S. 387 99 Cambria Iron Co. v. Ashburn, 118 U. S. 54 420 Cammack v. Carpenter, 3 App. D. C. 219 417 Campbell v. Haverhill, 155 U. S. 610 158 PAGE Canter v. American &c. Ins. Co., 3 Pet. 307 268 Carey v. Houston &c. Railway, 150U. S. 170 681 Carroll v. Price, 81 Fed. Rep. 137 290 Catlin v. Hull, 21 Vt. 152 317 Central Pacific Railroad v. California, 162 U. S. 91 632 Central Railroad v. Keegan, 160 U. S. 259 338 Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S. 24; 171 U. S. 138 59, 100 Chambers v. Harrington, 111 U. S. 350 581 Charnock v. Levee Co., 38 La. Ann. 323 139 Chatterton v. Cave, 3 App. Cas. 483 157 Cherokee Nation v. Blackfeather, 155 U. S. 218 268 Cherokee Nation v. Georgia, 5 Pet. 1 8, 10 Cheshire, The, 3 Wall. 231 368 Chicago, Burlington &c. Railroad v. Chicago, 166 U. S. 226 175 Chicago, Kansas &c. Railroad v. Pontius, 157 U. S. 209 351, 352 Chicago, Milwaukee &c. Railway v. Ross, 112 U. S. 377 328, 333, 337, 340, 341, 342, 343, 346, 347 Chicago, Rock Island &c. Rail- way v. Sturm, 174 U. S. 710 399 Chicago, Santa F6 &c. Railroad v. Price, 138 U. S. 185 602 Chinese Exclusion Case, 130 U. Sr 581 460 Chittenden v. Brewster, 2 Wall. 191 268 Choctaw Nation v. United States, 119 U. S. 1 11 Churton v. Douglas, 1 Johns. (Eng.) Ch. 174 52 Cincinnati, New Orleans &c. Railway v. Interstate Commerce Commission, 162 U. S. 184 662, 672 Circassian, The, 2 Wall. 135 365, 374 City Bank of Fort Worth v. Hunter, 152 U. S. 512 117 City of New York, The, 147 U. S. 72 192 Clark v. Killian, 103 U. S. 766 268 Clarke v. Minot, 4 Met. 346 404 Clason v. New Orleans, 46 La. Ann. 1 314 Clements v. Warner, 24 How. 394 567 Clifford v. Heller, 172 U. S. 641 723 Clifford v. Old Colony Railroad, 141 Mass. 564 332 TABLE OF CASES CITED. xv PAGE Clifton v. United States, 4 How. 242 204 Clough v. Curtis, 134 U. S. 361 413 Coburn v. Murray, 2 Me. 336 287 Cohens v. Virginia, 6 Wheat. 264 455 Colorado Central Consolidated Mining Co. v. Turek, 150 U. S. 138 584 Columbia Water Power Co. v. Columbia Railway, 172 U. S. 475 36, 647 Columbian Ins. Co. v. Catlett, 12 Wheat. 394 618 Columbus &c. Railway v. Arnold, 31 Ind. 174; 8. C. 99 Am. Dec. 615 332 Commissioners of the First Drainage District, In re, 27 La. Ann. 20 135 Cook Co. v. Calumet &c. Dock Co., 138 U. S. 635 413, 647 Coombs, petitioner, 127 Mass. 278 24 Cope v. Cope, 137 U. S. 682 168 Correjolles v. Succession of Foucher, 26 La. Ann. 362 139 Covington Stockyards v. Keith, 139 U. S. 128 99 Crespin v. United States, 168 U. S. 208 258, 259, 508, 563 Crews v. Burcham, 1 Black, 356 10, 14, 16 Cromwell v. Sac Co., 96 U. S. 51 147 Cumming v. Mayor, 11 Paige, 596 130 Cutter v. Powell, 2 Sm. Lead. Cas. 1 602 Daly v. Brady, 39 Fed. Rep. 265 149 Daly v. Palmer, 6 Blatch. 256 159 Daly v. Webster, 47 Fed. Rep. 903; 1 U. S. App. 573 150, 158 Daniels v. Tearney, 102 U. S. 415 643 Davenport v. Lamb, 13 Wall. 418 289 Davidson v. New Orleans, 34 La. Ann. 170 134, 135,.137 Davis v. Texas, 139 U. S. 651 174 Debs, In re, 158 U. S. 564 230 Deffeback v. Hawke, 115 U. S. 392 420 De Forest v. Jewett, 88 N. Y. 264 332 De Karov. United States, 5 Wall. 599 550 De la Croix v. Chamberlain, 12 Wheat. 599 79 Delassus v. United States, 9 Pet. 117 79 Delaware, The, 161 U. S. 459 205 Dennick v. Railroad Co., 103 U. S. 11 157 Dent v. Emmeger, 14 Wall. 308 81 Dermott v. Jones, 2 Wall. 1 602 Detroit v. Osborne, 135 U. S. 492 100 PAGE Dewey v. Des Moines, 173 U. S. 193 633 District of Columbia v. Hutton, 143 U. S. 18 685 Doe v. Beardsley, 2 McLean, 417 10 Doe v. City of Mobile, 9 How. 451 647 Doe v. Wilson, 23 How. 457 8, 10, 15, 16 Dole v. Irish, 2 Barb. 639 29 Doolan v. Carr, 125 U. S. 618 68 Dows v. Chicago, 11 Wall. 108 272 Doyle v. Continental Ins. Co., 94 U. S. 535 146 Driggers v. Cassady, 71 Ala. 529 141 Durham v. Seymour, 161 U. S. 235 167 Durousseau v. United States, 6 Cranch, 307 « 685 Dushane v. Benedict, 120 U. S. 630 169 Dwight v. Appleton, 8 Fed. Cas. 143 267 E. A. Packer, The, 140 U. S. 360 203 Eells v. Ross, 29 U. S. App. 59 24 Eilenbecker v. District Court of Plymouth Co., 134 U. S. 31 174 Eilers v. Boatman, 111 U. S. 356 646 Elk v. Wilkins, 112 U. S. 94 10 Elliot v. Swartwout, 10 Pet. 137 273 Elmendorf v. Taylor, 10 Wheat. 152 100 Ely’s Administrator v. United States, 171 U. S. 220 78 England v. Dearborn, 141 Mass. 590 53 Engle v. Chicago, Milwaukee &c. Railway, 77 Iowa, 661 104 Etheridge v. Sperry, 139 U. S. 266 100 Eustis v. Bolles, 150 U. S. 361 280 Express Co. v. Caldwell, 21 Wall. 264 98 Fairfield v. Gallatin Co., 100 U. S. 47 108 Fanita, The, 14 Blatch. 545 204 Farwell v. Boston &c. Railroad, 4 Met. 49; 8. C. 88 Am. Dec. 339 328, 331 Finch v. York Co., 19 Neb. 50 319 First National Bank v. National Exchange Bank, 92 U. S. 122 55 Fisher v. Commissioners of Rush Co., 19 Kans. 414 318 Fisk v. Henarie, 142 U. S. 459 684, 685 Fisk v. Union Pacific Railroad, 6 Blatch. 362 120 Fletcher v. Fuller, 120 U. S. 534 520 Fletcher v. Peck, 6 Cranch, 87 145 Fluker v. Bullard, 2 La. Ann. 338 322 xvi TABLE OF CASES CITED. Fong Yue Ting v. United States, 149 U. S. 698 460 Forsyth v. Hammond, 166 U. S. 506 174 Fox v. Ohio, 5 How. 410 174 Frelinghuysen®. Key, 110 U. S. 63 432, 434, 436, 439, 458, 459, 463 Fremont v. United States, 17 How. 542 84 Friendschaft, The, 4 Wheat. 105 368 Fuentes v. United States, 22 How. 443 258 Fuller v. Hubbard, 6 Cow. 13; S. C. 16 Am. Dec. 423 147 Fulton Bank v. New York &c. Canal Co., 4 Paige, 127 54 Gaines v. Nicholson, 9 How. 356 13 Gandy v. Chicago &c. Railroad, 30 Iowa, 420 103 Gardner®. Michigan Central Railroad, 150 U. S. 349 100 Garrett ®. Chicago &c. Railroad,' 36 Iowa, 121 103 Gasquet ®. Directors, 45 La. Ann. 342 128 Gibbons ®. Ogden, 9 Wheat. 1 227, 228 Gibson ®. Chouteau, 13 Wall. 92 260 Gill ®. Oliver, 11 How. 529 586 Gillis ®. Stinchfleld, 159 U. S. 658 585 Gloucester Ferry Co. ®. Pennsylvania, 114 U. S. 196 241 Gold Washing & Water Co. ®. Keyes, 96 U. S. 199 580 Goldgart ®. People, 106 Ill. 25 317 Gonzales ®. Cunningham, 164 U. S. 612 166 Goodell ®. Jackson, 20 Johns. 693 13 Goodenough Mfg. Co. ®. Rhode Island Horse Shoe Co., 154 U. S. 635 642 Gordon ®. Longest, 16 Pet. 97 118 Gordon ®. Ogden, 3 Pet. 33 680 Gordon ®. United States, 2 Wall. 561; 117 U. S. 697 456 Graff ®. Shannon, 7 Iowa, 508 322 Graham ®. Norton, 15 Wall. 427 118 Grand Trunk Railroad®. Richard- son, 91 U. S. 454 99 Griswold ®. Illinois Central Railroad, 53 N. W. Rep. 295; 90 Iowa, 265 95, 105, 108 Ballinger ®. Davis, 146 U. S. 314 174 Hamilton ®. Rathbone, 9 App. Cas. D. C. 48 416 Hammonia, The, 4 Ben. 515 201 Hans ®. Louisiana, 134 U. S. 1 703 Hardee ®. Wilson, 146 U. S. 179 723 Hardin ®. Boyd, 113 U. S. 756 28 Hardin ®. Jordan, 140 U. S. 371 306 PAGE Harkness ®. Western Union Tel. Co., 73 Iowa, 190 98 Hart, The, 3 Wall. 559 375 Harvey ®. United States, 105 U. S. 671 464, 465 Hastings ®. Farmer, 4 N. Y. 293 29 Havnor ®. New York, 170 U. S. 408 502 Hayes ®. Missouri, 120 U. S. 68 175, 177 Hayes ®. United States, 170 U. S. 637 259, 558, 563 Hays ®. United States, 175 U. S. 248 508, 563 Head Money Cases, 112 U. S. 580 460 Henderson Bridge Co. ®. Hender- son City, 173 U. S. 592 632 Henderson Bridge Co. ®. Ken- tucky, 166 U. S. 150 632 Hermann, The, 4 Blatch. 441 201 Heydon’s Case, 3 Fed. Rep. 76 419 Hilton ®. Guyot, 159 U. S. 113 700 Holden ®. Fitchburg Railroad, 129 Mass. 268 331 Holden ®. Joy, 17 Wall. 211 10, 32 Holden ®. Trust Co., 100 U. S. 72 147 Hook ®. Payne, 14 Wall. 252 132 Hopkins ®. Roseclare Lead Co., 72 Ill. 373 53 Hopkins ®. United States, 171 U. S. 578 243 Horne ®. Smith, 159 U. S. 40 306 Hornsby ®. United States, 10 Wall. 224 257 Hough ®. Western Transporta- tion Co., 1 Biss. 425 120 Hubbard ®. Soby, 146 U. S. 56 683 Hume ®. Bowie, 148 U. S. 245 286 Humphreys ®. McKissock, 140 U. S.304 53 Huntington ®. Attrill, 146 U. S. 657 155 Huntsville, The, 8 Blatch. 228 201 Hurtado ®. California, 110 U. S. 516 175, 176 Insurance Co. ®. Dunham, 11 Wall. 1 684 Interstate Commerce Commission ®. Alabama Midland Railway, 168 U. S. 144 665, 669, 670, 674 Interstate Commerce Commis- sion ®. Brimson, 154 U. S. 447 457 Iowa ®. Illinois, 147 U. S. 1 631 Iowa Central Railway ®. Iowa, 160 U. S. 389 175 Iron Silver Mining Co. w. Camp- bell, 135 U. S. 286 582 James ®. Howell, 41 O. St. 696 306 James Adger, The, 3 Blatch. 515 204 James Watt, The, 2 W. Rob. 270 201 Jefferson, In re, 35 Minn. 215 319 TABLE OF CASES CITED. xvii PAGE. . PAGE Jenks v. Lewis, 3 Mason, 503 681 Jewell v. Porche, 2 La. Ann. 148 82 Johan, The, Edw. Adm. 275 701 John L. Hasbrouck, The, 93 U. S. 405 208 Johnson v. McIntosh, 8 Wheat. 543 8,. 10, 13 Johnson v. Richmond &c. Railroad, 86 Va. 975 v 98 Jones v. United States, 137 U. S. 202 696 Joseph, The, 8 Cranch, 451 366, 373 Jouett v. Erwin, 9 La. Ann. 231 128 Judd v. Ives, 4 Met. 401 403 Juniata, The, 93 U. S. 337 210 Justices v. Murray, 9 Wall. 274 120 Kansas Indians, 5 Wall. 737 11, 29 Keokuk &c. Bridge Co. v. People, 145 Ill. 596 630 Keokuk &c. Bridge Co. v. People, 161 Ill. 132 631 Keokuk &c. Bridge Co. v. People, 161 Ill. 514 631 Keokuk &c. Bridge Co. v. People, 167 Ill. 15 630 Kesee v. Chicago &c. Railroad, 30 Iowa, 78 103 Kidd v. Pearson, 128 U. S. 1 227, 241 Kihlberg v. United States, 97 U. S. 398 605 King v. Cornell, 106 U. S. 395 685 King Iron Bridge Co. v. Otoe Co., 124 U. S. 459 128 Kirtland v. Hotchkiss, 100 U. S. 491 321 Kurtz v. Moffitt, 115 U. S. 487 167 Ladd v. Tudor, 3 Wood*& Min. 325 119 Lake Co. v. Rollins, 130 U. S. 662 419 Lau Ow Bew v. United States, 144 U. S. 47 683 Lavergne v. Elkins, 17 La. 220 82 Lawrence v. Batcheller, 131 Mass. 504 408 Leep v. Railway Co., 58 Ark. 407 351 Leeper v. Texas, 139 U. S. 462 176 Lehigh Valley Coal Co. v. Jones, 86 Penn. St. 432 332 Leland v. Felton, 1 Allen, 531 132 Levy v. Superior Court of San Francisco, 167 U. S. 175 36 Lewis v. Hawkins, 23 Wall. 119 130 Libby v. Clark, 118 U. S. 250 21 Lindsey v. Miller, 6 Pet. 666 260 Liverpool &c. Ins. Co. v. Board of Assessors, 44 La. Ann. 760 313 Liverpool &c. Ins. Co. v. Board of Assessors, 25 So. Rep. 970 315 Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397 29, 98, 197 Lomax v. Pickering, 173 U. S. 26 21 Loudon v. Taxing District, 104 U. S. 771 268 Louisiana v. Pilsbury, 105 U. S. 278 174 Louisiana, The, 21 How. 1 201 Louisville &c. Railroad, In re, 1 Int. C. C. Rep. 31 667 Luco v. United States, 23 How. 515 257 Lynde v. Craney, 95 Mich. 109 287 McCardle, Ex parte, 7 Wall. 506 146 McCormick v. Market Bank, 165 U. S. 538 59, 278 McCoy v. Keokuk &c. Railroad, 44 Iowa, 424 104 McCready v. Virginia, 94 U. S. 391 308 McCullough v. Moss, 5 Den. 567 54 McCummons v. Chicago &c. Railroad, 33 Iowa, 187 103 McElvaine v. Brush, 142 U. S. 155 174 McGuire v. Commonwealth, 3 Wall. 387 643 McKnight v. Calhoun, 36 La. Ann 408 130 McLean Co. v. Bloomington, 106 Hl- 209 139 McLish v. Roff, 141 U. S. 661 528, 681, 684 McStay v. Friedman, 92 U. S. 723 580 Magoun v. Illinois Trust & Sav- ings Bank, 170 U. S. 283 353 Maguire v. Tyler, 8 Wall. 650 81 Marble Co. v. Harvey, 92 Tenn. 116 59 Maria Martin, The, 12 Wall. 31 205, 268 Marquez v. New Orleans, 13 La. Ann. 319 139 Marquis de Somerueles, The, Stew. Adm. (Nova Scotia) 445 709 Martello, The, 153 U. S. 64 201 Martinsburg &c. Railroad v. March, 114 U. S. 549 602 Mary Sandford, The, 3 Ben. 100 201 Mason v. United States, 136 U. S. 581 723 Maxwell Land Grant Case, 121 U. S. 325 67 Mayo v. Foley, 40 Cal. 281 141 Mechanics’ &c. Bank v. Meriden Co., 24 Conn. 159 55 Mendenez v. Holt, 128 U. S. 514 52 Metropolitan Bank v. St. Louis Dispatch Co., 149 U. S. 436 52 Michigan Land & Lumber Co. v. Rust, 168 U. S. 589 309 Milan, The, Lush. 388 210 Milbank v. New York, Lake Erie &c. Railroad, 64 How. Pr. 20 55 xviii TABLE OF CASES CITED. Miller v. Cornwall Railroad, 168 U. S. 131 36 Miller v. Nicholls, 4 Wheat. 311 647 Miller v. Texas, 153 U. S. 535 174 Millett v. Snowden, 17 Fed. Cas. 374 267 Millingar v. Hartupee, 6 Wall. 258 643 Minneapolis &c. Railway v. Beckwith, 129 U. S. 26 101, 353 Minneapolis &c. Railway v. Emmons, 149 U. S. 364 * 101 Minneapolis &c. Railway v. Herrick, 127 U. S. 210 351, 352 Missouri v. Lewis, 101 U. S. 22 175, 177 Missouri v. St. Louis County Court, 47 Mo'. 594 319 Missouri &c. Trust Co. v. Krum-seig, 172 U. S. 351 100 Missouri, Kansas &c. Railway v. McCann, 174 U. S. 580 353 Missouri Pacific Railway v. Fitzgerald, 160 U. S. 556 637 Missouri Pacific Railway v. Humes, 115 U. S. 512 101 Missouri Pacific Railway v. Mac-key, 127 U. S. 205 351, 353 Missouri Pacific Railway v. Nebraska, 164 U. S. 403 99 Mitchel v. United States, 9 Pet. 711 10 Mobile Co. v. Kimball, 102 U. S. 691 227, 231 Montello, The, 11 Wall. 411 194 Moore v. American Transportation Co., 24 How. 1 194 Morgan v. Curtenius, 20 How. 1 108 Morgan v. Louisiana, 118 U. S. 455 231 Mumford v. Hallett, 1 Johns. 433 618 Murdock v. Gurley, 5 Rob. (La.) 457 82 Murdock v. Memphis, 20 Wall. 590 36 Murray v. Charleston, 96 U. S. 432 320 Murray v. Hoboken, 18 How. 272 456 Mussina v. Cavazos, 6 Wall. 355 285 National Bank of Commerce Wade, 84 Fed. Rep. 10 412 Neel v. Hibard, 30 La. Ann. 309 551 New Orleans Draining Co., 11 La. Ann. 338 139 Newton v. Boodle, 3 C. B. 796 286 New York Indians v. United States, 170 U. S. 1 10 Niles v. Anderson, 5 How. (Miss.) 365 20 Nind v. Arthur, 7 Dowl. & Lowndes, 252 286 PAGE Noble v. Union River Logging Railroad, 147 U. S. 165 68 Nor, The, 2 Asp. M. L. Cas. 264 203 Northern Pacific Railroad v. Hambly, 154 U. S. 349 337 Northern Pacific Railroads. Herbert, 116 U. S. 642 334 Northern Pacific Railroad v. Peterson, 162 U. S. 346 338 Northern Pacific Railroad v. Poirier, 167 U. S. 48 340 Northern Pacific Railway v. De Lacey, 174 U. S. 622 568 Nostra Segnora de la Piedad, La, 25 Merlin, Juris., Prise Mar. § 3, art. 1; 5. C. 1 Pistoye & Du-verdy, Prises Mar. 331 691, 695 Noydt Gedacht, The, 2 C. Rob. 137, n. 692 Oakes v. Mase, 165 U. S. 363 340 Ogdensburgh, The, 21 How. 548 201 Ohio v. Frank, 103 U. S. 697 147 Olinde Rodrigues, The, 174 U. S. 510 395 Oliver v. Piatt, 3 How. 333 130 Oregon Railway v. Oregonian Railway, 130 U. S. 1 59 Orient Ins. Co. v. Daggs, 172 U. S. 557 351, 352 Origet v. United States, 125 U. S. 240 287 Osborn v. United States Bank, 9 Wheat. 738 456 Oxley Stave Co. v. Butler Co., 166 U. S. 648 634 Pacific Express Co. v. Seibert, 142 U. S. *339 353 Pacific Telegraph Co. v. O’Connor, 128 U. S. 394 169 Parker v. Ormsby, 141 U. S. 81 680 Parker, Tax Collector, v. Strauss & Co., 49 La. Ann. 1173 315 Patapsco Ins. Co. v. Coulter, 3 Pet. 222 621 Peake v. New Orleans, 139 U. S. 342 122, 126, 129, 132, 134 Pearce v. Madison &c. Railroad, 21 How. 441 58 Pedro, The, 175 U. 8. 354 383, 387 Peirce v. Van Dusen, 47 U. S. App. 339 351, 352 Pennsylvania Co. v. St. Louis, Alton &c. Railroad, 118 U. S. 290 59 People ex rel. v. Smith, 88 N. Y. 576 319 People v. Chicago Gas Trust Co., 130 III. 268 55 People v. Home Ins. Co., 28 Cal. 533 319 People v. Trustees, 48 N. Y, 390 318 TABLE OF CASES CITED. xix PAGE Peralta v. United States 3 Wall. 434 257 Perkins v. Tourniquet, 14 How. 328 118 Perrine v. Slack, 164 U. S. 452 167 Peterhof, The, 5 Wall. 28 375 Philadelphia v. Collector, 5 Wall. 720 273 Phoenix, The, 1 Spinks Ec. & Adm. 306; Spinks’ Prize Cas. 1 363, 367, 388, 392 Phoenix Ins. Co. v. Erie Trans- portation Co., 117 U. S. 312 96, 99 Pickering v. Lomax, 145 U. S. 310 21 Pierce v. Somerset Railway, 171 U. S. 641 280 Pittsburg &c. Railway v. Board of Public Works, 172 U. S. 32 272 Pittsburgh &c. Railroad v. Montgomery, 152 Ind. 1 351 Pittsburgh, Cincinnati &c. Railway v. Keokuk &c. Bridge Co., 131 U. S. 371 59 Platt v. Union Pacific Railroad, 99 U. S. 48 419 Polk’s Lessee v. Wendell, 9 Cranch, 87; 5 Wheat. 293 68 Pollard v. Hagan, 3 How. 212 308 Pope Mfg. Co. v. Gormully, 144 U. S. 224 106 Poppleton ©.Yamhill Co., 18 Ore. 377 319 Potts, In re, 166 U. S. 263 117 Powers v. Chesapeake &c. Rail- way, 169 U. S. 92 637 Prentice v. Northern Pacific Rail- road, 43 Fed. Rep. 270 18 Prentice v. Stearns, 113 U. S. 435 18 Primrose v. Western Union Tel. Co., 154 U. S. 1 98 Printing Co. v. Sampson, L. R. 19 Eq. 462 106 Pritchard v. Norwood, 155 Mass. 539 322 Proctor v. National Bank of the Republic, 152 Mass. 223 408 Pullnaan’s Car Co. ©. Pennsyl- vania, 141 U. S. 18 321 Quebec Steamship Co. ©. Mer- chant, 133 U. S. 375 335 R. H. Stokes, The, 22 How. 48 201 Railey v. Board of Assessors, 44 La. Ann. 765 313 Railroad Co. v. Lockwood, 17 Wall. 357 • 98 Railroad Co. v. Richmond, 19 Wall. 584 227, 233 Railroad Co. v. Schurmeir, 7 < Wall. 272 306 PAGE Railway Companies v. Keokuk Bridge Co., 131 U. S. 371 59 Randall v. Baltimore &c. Railroad, 109 U. S. 478 333 Rathbone v. Hamilton, 4 App. Cas. D. C. 475 416 Redfield v. Parks, 132 U. S. 239 260 Redmond v. Commissioners, 87 N. C. 122 319 Reed v. Carusi, Taney, 72; S. G. 20 Fed. Cas. 431 267 Reggel, Ex parte, 114 U. S. 642 175 Reichart v. Felps, 6 Wall. 160 32 Remington Paper Co. v. Watson, 173 U. S. 443 280 Reynolds v. West, 1 Cal. 322 258 Ricard v. Williams, 7 Wheat. 59 . 260, 521 Richardville v. Thorp, 28 Fed. Rep. 52 30 Richelieu &c. Navigation Co. v. Boston Marine Ins. Co., 136 U. S. 408 197 Richmond v. Dubuque &c. Railroad, 26 Iowa, 191 102 Riddle v. Ratliff, 8 La. Ann. 106 82 Rio Arriba Co. v. United States, 167 U. S. 298 79, 506 Rodemacher v. Milwaukee &c. Railway, 41 Iowa, 297 103 Romie v. Casanova, 91 U. S. 379 579 Rowan v. Runnels, 5 How. 134 108 Rutter v. Shoshone Mining Co., 75 Fed. Rep. 37 576 Ryan v. Carter, 93 U. S. 78 67 Sabariego v. Maverick, 124 U. S. 261 68 St. Louis &c. Railway v. Matthews, 62 Fed. Rep. 907; 165 U. S. 1 101 St. Louis, Iron Mountain &c. Railway v. Paul, 64 Ark. 83 351 St. Louis, Iron Mountain &c. Railway v. Paul, 173 U. S. 404 351 Sanborn, In re, 148 U. S. 222 457 Sanford Fork & Tool Co., In re, 160 U. S. 247 117 Sarony v. Ehrich, 28 Fed. Rep. 79 268 Satterlee v. Matthewson, 2 Pet. 380 647 Savannah Bureau of Freight & Transportation v. Charleston &c. Railway, 7 Int. C. C. Rep. 456 670 Savings Society v. Multnomah Co., 169 U. S. 421 321 Sawyer, In re, 124 U. S. 200 174 School Directors v. Shreveport, 47 La. Ann. 1310 130 Scotia, The, 14 Wall. 170 197, 712 Sea Gull, The, 23 Wall. 165 204 XX TABLE OF CASES CITED. PAGE Sears v. Street Comrs., 53 N. E. Rep. 876 141 Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624 400, 407 Sellers v. Greer, 172 Ill. 549 53 Serrano v. United States, 5 Wall. 451 551 Seska v. Chicago, Milwaukee &c. Railway, 77 Iowa, 137 104 Seymour v. Freer, 8 Wall. 202 130 Sharpe v. Doyle, 102 U. S. 686 643 Shelton v. Platt, 139 U. S. 591 272 Sheppard v. Boggs, 9 Neb. 257 52 Sherman v. Rochester &c. Rail- road, 17 N. Y. 153 332 Shively v. Bo.wlby, 152 U. S. 1 168 Shoshone Mining Co. v. Rutter, 59 U. S. App. 538 576 Shute v. Keyser, 149 U. S. 649 166 Sigournev v. Wetherell, 6 Met. (Mass.) 553 132 Sioux City Railroad v. Trust Co. of North America, 173 U. S. 99 100, 108 Sipperley v. Smith, 155 U. S. 86 723 Small v. Chicago, Rock Island &c. Railroad, 50 Iowa, 338 104 Smith v. Adams, 130 U. S. 167 456 Smith v. Babcock, 3 Sumn. 583 28 Smith v. Eals, 81 Iowa, 235 322 Smith tn Higbee, 12 Vt. 113 261 Smith v. Hurd, 12 Met. (Mass.) 371; S. C. 46 Am. Dec. 690 53 Smith v. Stevens, 10 Wall. 321 13, 19, 32 Smythe v. Fiske, 23 Wall. 374 419 Soon Hing v. Crowley, 113 U. S. 703 146 Southern Pacific Railroad v. United States, 168 U. S. 1 159 Sparks v. Pierce, 115 U. S. 408 260 Spence v. Chicago &c. Railway, 25 Iowa, 139 103 Spies v. Illinois, 123 U. S. 131 174 Springbok, The, 5 Wall. 1 366, 375 Stanley v. Schwalby, 162 U. S. 255 118 Stams v. Hadnot, 42 La. Ann. 366 142 State ex rel. Van Norden v. Mayor, 27 La. Ann. 497 129 State v. Hartford, 50 Conn. 89 140 State tn Weiskittle, 61 Md. 51 287 State Freight Tax, 15 Wall. 232 227 State Tgx on Foreign-held Bonds, 15 Wall. 300 319 Stephen Morgan, The, 94 U. S. 599 268 Stephens v. Choctaw Nation, 174 U. S. 445 10 Stevens v. Gaylord, 11 Mass. 256 132 PAGE Stewart v. Baltimore &c. Railroad, 168 U. S. 445 157 Stockton v. Stanbrough, 3 La. Ann. 390 322 Stokes v. New Jersey Pottery Co., 46 N. J. Law, 237 54 Stoneroad v. Stoneroad, 158 U. S. 240 79 Stratton v. Jarvis, 8 Pet. 4 680, 681 Strother v. Lucas, 12 Pet. 410 79 Stuart v. Boulware, 133 U. S. 78 169 Succession of Farmer, 32 La. Ann. 1037 130 Sumner v. Marcy, 3 Wood & Minot, 105 55 Sunnyside, The, 91 U. S. 208 204,205 Susa, The, 2 C. Rob. 251 704 Swift Co. v. United States, 111 U. S. 22 273 Sykes v. Chadwick, 18 Wall. 141 417 Talbot v. Seeman, 1 Cranch, 1 196 Tameling v. United States Free- hold & Emigration Co., 93 U. S. 644 67, 69, 86 Tappan v. Merchants’ National Bank, 19 Wall. 490 320 Taylor v. Hall, 71 Tex. 213 273 Teresita, The, 5 Wall. 180 179 Teutonia, The, 23 Wall. 77 201 Texas &c. Railway v. Cox, 145 U. S. 593 157 Texas &c. Railway v. Horn, 151 U. S. 110 169 Texas &c. Railway v. Interstate Commerce Commission, 162 U. S. 197 663, 671, 675 Thomas v. Railroad Co., 101 U. S. 71 59, 100 Thompson v. Chicago, St. Paul &c. Railway, 60 Fed. Rep. 773 637 Thompson v. Simmons, 22 La. Ann. 450 128 Thorington v. Montgomery, 147 U. S. 490 174 Thornley v. United States, 113 U. S. 310 419 Thornton v. Schreiber, 124 U. S. 612 265, 267 Tinsley v. Anderson, 171U. S. 101 186 Titus v. Cairo &c. Railroad, 37 N. J. Law, 98 53 Townsend v. Downer, 32 Vt. 183 261 Tracy v. Tuffly, 134 U. S. 206 685 Trafton v. Nouges, 4 Sawyer, 178 576 Trenier v. Stewart, 101 U. S. 797 81 Twitchell v. Commonwealth, 7 Wall. 321 174 Underhill v. Hernandez, 168 U. S. 250 696 Union Bank v. Kansas City Bank, 136 U. S. 223 100 TABLE OF CASES CITED. xxi PAGE Union Pacific Railway v. Chicago, Rock Island &c. Railway, 163 U. S. 564 59 United States ex rel. Boynton v. Blaine, 139 U. S. 306 438, 459 United States v. American Bell Telephone Co., 159 U. S. 548 39 United States v. Arredondo, 6 Pet. 691 82 United States ®. Averill, 130 U. S. 335 420 United States v. Bolton, 23 How. 341 256 United States v. Bowen, 100 U. S. 508 420 United States v. Brooks, 10 How. 442 10, 14 United States v. Cambuston, 20 How. 59 256 United States v. Chaves, 159 U. S. 452 260, 522, 562 United States v. Chaves, 175 U. S. 509 563 United States v. Clarke, 8 Pet. 436 558 United States v. Conway, 175 U. S. 60 75, 525 United States v. Cook, 19 Wall. 591 8 United States v. Cruikshank, 92 U. S. 542 174 United States v. d’Auterieve, 15 How. 14 81 United States v. De Haro, 22 How. 293 260 United States v. Des Moines Navi- gation Co., 142 U. S. 510 146 United States v. E. C. Knight Co., 156 U. S. 1 235, 238, 246 United States v. Freeman, 3 How. 556 419 United States v. Goldenberg, 168 U. S. 95 419, 421 United States v. Hartwell, 6 Wall. 385 265 United States v. Healey, 160 U. S. 136 685 United States v. Hirsch, 100 U. S. 33 419 United States v. Hopewell, 5 U. S. App. 137 38 United States v. Jahn, 155 U. S. 109 38 United States v. Joint Traffic Association, 171 U. S. 505 228 United States v. Kagama, 118 U. S. 375 8, 10 United States v. Knight’s Admrs., 1 Black, 227 258 United States v. Lacher, 134 U. S. 624 420 PAGE United States v. Lynch, 137 U. S. 280 413 United States v. McCullagh, 13 How. 216 81 United States v. New Orleans, 98 U. S. 381 141 United States v. Old Settlers, 148 U. S. 427 146, 465 United States v. Percheman, 7 Pet. 51 79, 82, 558 United States v. Pillerin, 13 How. 9 81 United States v. Reading, 18 How. 1 257 United States v. Reese, 92 U. S. 214 265 United States v. Rider, 163 U. S. 132 528, 684 United States v. Roselius, "15 How. 36 81 United States v. Sandoval, 167 U. S. 278 506 United States v. Sanges, 144 U. S. 310 684 United States v. Santa Fe, 165 U. S. 675 506 United States v. Shanks, 15 Minn. 369 29 United States v. Tynen, 11 Wall. 88 685 United States v. Vallejo, 1 Black, 541 258, 556 United States v. Vigil, 13 Wall. 449 257, 556, 557 United States v. Weil, 29 C. Cl. 523 446 United States v. Wiggins, 14 Pet. 334 83 United States v. Wiltberger, 5 Wheat. 76 265 Utter v. Franklin, 172 U. S. 416 168 Veazie v. Moor, 14 How. 568 194 Velocity, The, L. R. 3 P. C. 44 208 Vidal v. Girard, 2 How. 127 100 Villavaso v. Barthet, 39 La. Ann. 247 146 Viterbo v. Friedlander, 120 U. S. 707 419 Wade v. Travis Co., 174 U. S. 499 108 Wager v. Providence Ins. Co., 150 N. Y. 99 99 Walden v. Skinner, 101 U. S. 577 575 Wallingford®. Burr, 17Neb. 137 52 Walworth Co. Bank v. Farmers’ Loan & Trust Co., 14 Wis. 325 54 Warner®. New Orleans, 167 U*. S. 467 122, 126, 135 Warren ®. Keokuk &c. Railroad, 41 Iowa, 484 103 Waupemanqua ®. Aldrich, 28 Fed. Rep. 489 30 xxii TABLE OF CASES CITED PAGE Weber®. Harbor Commissioners, 18 Wall. 57 260, 308 Webster®. Daly, 163 U. S. 155 150 Wedderburn ®. Wedderburn, 22 Beav. 84 52 Weger ®. Pennsylvania Railroad, 55 Penn. St. 460 332 Welton ®. Missouri, 91 U. S. 275 227 West ®. Chicago &c. Railway, 77 Iowa, 654 104 Western Union Tel. Co. ®. Cook, 15 U. S. App. 445 98 Western Union Tel. Co. ®. James, 162 U. S. 650 231 Western Union Tel. Co. ®. Texas, 105 U. S. 460 98 Wetmore ®. Rymer, 169 U. S. 115 574 Whitney ®. Robertson, 124 U. S. 190 460 Wiggins Perry ®. Ohio &c. Rail- way, 142 U. S. 396 29 Wilcox ®. Ellis, 14 Kans. 588 318 Willett ®. Blandford, 1 Hare, 253 52 Williams ®. Donell, 2 Head, 695 522 Williams ®. Eggleston, 170 U. S; 304 108 PAGE Williams vt Wilson, 4 Sand. Ch. 379 52 Wilson, ex parte, 114 U. S. 417 682 Wilson v. Merry, L. R. 1 H. L. Sc. 326 331 Wilson v. Wall, 6 Wall. 83 32 Wood v. Davis, 18 How. 467 575 Worcester v. Georgia, 6 Pet. 515 8, 11 Worcester Co. v. Worcester, 116 Mass. 193 140 Wormley v. Wormley, 8 Wheat. 421 575 Wray v. Doe, 10 Sm. & Marsh. 452 20 Wright v. Roseberry, 121 U. S. 488 68 Young v. Amy, 171 U. S. 179 169 Young v. Martin, 8 Wall. 354 286 Young Jacob & Johanna, The, 1 C. Rob. 20 690, 692, 693 Zabriskie v. Cleveland, Columbus &c. Railroad, 23 How. 381 59 Zeller’s Lessee v. Eckert, 4 How. 289 130 Zeringue v. Harang, 17 La. 349 551 TABLE OF STATUTES CITED IN OPINIONS (A.) Statutes of the United States. PAGE 1789, Sept. 24, 1 Stat. 81, c. 20 118, 272, 680, 683 1790, July 22, 1 Stat. 138, c. 33.. 9 1793, Mar. 1, 1 Stat. 330, c. 19.. 9 1796, May 19, 1 Stat. 472, c. 30.. 9, 10 1799, Mar. 3, 1 Stat. 746, c. 46.. 10 1802, Mar. 30, 2 Stat. 143, c. 13 10, 12 1802, Apr. 29, 2 Stat. 159, c. 31.. 684 1803, Mar. 3, 2 Stat. 244, c. 40 680, 681 1805, Mar. 2, 2 Stat. 324, c. 26.. 80 1824, Mar. 26, 4 Stat. 52, c. 173.. 80,81' 1831, Feb. 3, 4 Stat. 436, c. 16 265, 266 1834, June 30, 4 Stat. 730, c. 161 12, 13 1844, June 17, 5 Stat. 676, c. 95.. 81 1846, Aug. 6, 9 Stat. 62, c. 90... 183 1850, Sept. 28, 9 Stat. 519, c. 84 303 1851, Mar. 3, 9 Stat. 631, c. 41 83, 84, 550 1851, Mar. 3, 9 Stat. 635, c. 43.. 194 1854, July 22, 10 Stat. 308, c. 103 62, 64, 73, 77, 85, 86, 89, 250 1856, Aug. 18, 11 Stat. 138, c. 169 153 154 1857, Mar. 3, 11 Stat. 249, c. 114 182 1858, Dec. 22, 11 Stat. 374, c. 5 62, 64, 67, 68 1860, May 26, 12 Stat. 21, c. 61.. 18, 19 1861, Mar. 1, 12 Stat. 887, c. 66.. 73 1862, May 20, 12 Stat. 392, c. 75 22 1862, Dec. 25, 12 Stat. 632, c. 4.. 452 1862, Dec. 27, 12 Stat. 633, c. 5.. 452 1862, Dec. 31, 12 Stat. 633, c. 6.. 452 1863, Mar. 3, 12 Stat. 759, c. 86 181, 681 1863, Mar. 3, 12 Stat. 766, c. 92.. 463 Page 1864, Apr. 8, 13 Stat. 43, c. 50.. 296 1864, Apr. 29, 13 Stat. 58, c. 69.. 193 1864, June 3, 13 Stat. 99, c. 106.. 182 1864, June 30, 13 Stat. 308, c. 174 181, 681 1864, July 2, 13 Stat. 365, c. 217 569 1866, July 25, 14 Stat. 244, c. 244 627 1866, Dec. 25, 14 Stat. 374, c. 5 452 1867, Feb. 5, 14 Stat. 386, c. 28.. 683 1867, Mar. 2, 14 Stat. 484, c. 169 420 1868, Dec. 22, 15 Stat. 266, c. 4.. 452 1869, Apr. 10, 16 Stat. 45, c. 23 416, 418, 419, 423 1869, Dec. 23, 16 Stat. 61, c. 4... 452 1869, Dec. 23, 16 Stat. 61, c. 5... 452 1870, July 8, 16 Stat. 198, c. 230 153, 154 1870, July 15, 16 Stat. 304, c. 292 77, 85, 86 1871, Mar. 24, 17 Stat. 1, c. 2... 183 1872, June 1, 17 Stat. 196, c. 255 684 1872, Dec. 24, 17 Stat. 400, c. 12 452 1872, Dec. 24, 17 Stat. 401, c. 13 452 1872, Dec. 24, 17 Stat. 404, c. 14 452 1872, Dec. 24,17 Stat. 404, c. 15 452 1872, Dec. 27, 17 Stat. 404, c. 17 452 1873, Dec. 27, 18 Stat. 529, c. 2.. 452 1873, Dec. 31, 18 Stat. 1, c. 3.... 452 1874, Jan. 3, 18 Stat. 529, c. 4... 452 1874, Dec. 24, 18 Stat. 293, c. 7.. 452 1874, Dec. 28, 18 Stat. 293, c. 8.. 452 1874, Dec. 28, 18 Stat. 293, c. 9.. 452 1874, Dec. 28, 18 Stat. 294, c. 10 452 1874, Dec. 28, 18 Stat. 294, c. 12 452 1875, Feb. 16, 18 Stat. 316, c. 77 680, 684 1875, Mar. 3, 18 Stat. 482, c. 152 643 1875, Dec. 24, 19 Stat. 1, c. 1.... 452 1876, Apr. 21, 19 Stat. 35, c. 72 566, 568, 569 1878, June 18, 20 Stat. 144, c. 262 429, 430, 431, 434, 436, 440 xxiii xxiv TABLE OF STATUTES CITED. PAGE 1879, Dec. 20, 21 Stat. 59, c. 1... 452 1879, Dec. 22, 21 Stat. 59, c. 2... 452 1879, Dec. 24, 21 Stat. 531, c. 3.. 452 1880, June 15, 21 Stat. 237, c. 227 566, 568, 569, 570 1880, Dec. 23, 21 Stat. 311, c. 4.. 452 1880, Dec. 23, 21 Stat. 312, c. 5.. 452 1880, Dec. 23, 21 Stat. 312, c. 6.. 452 1880, Dec. 23, 21 Stat. 312, c. 7.. 452 1880, Dec. 23, 21 Stat. 312, c. 8.. 452 1880, Dec. 23, 21 Stat. 313, c. 9.. 452 1880, Dec. 23, 21 Stat. 313, c. 10 452 1880, Dec. 23, 21 Stat. 601, c. 11 452 1880, Dec. 23, 21 Stat. 601, c. 12 452 1880, Dec. 23, 21 Stat. 602, c. 13 452 1880, Dec. 23, 21 Stat. 602, c. 14 452 1884, May 17, 23 Stat. 84, c. 53 288, 289 1884, Dec. 25, 23 Stat. 615, c. 6 452 1884, Dec. 27, 23 Stat. 280, c. 7 452 1885, Mar. 3, 23 Stat. 438, c. 354 193, 194, 197 1885, Mar. 3, 23 Stat. 443, c. 355 166 1885, Dec. 26, 24 Stat. 653, c. 1.. 452 1885, Dec. 26, 24 Stat. 653, c. 2.. 452 1886, July 30, 24 Stat. 170, c. 818 168 1886, Dec. 23, 24 Stat. 353, c. 9 452 1886, Dec. 23, 24 Stat. 881, c. 10 452 1887, Jan. 3, 24 Stat. 354, c. 11.. 452 1887, Jan. 3, 24 Stat. 354, c. 12.. 452 1887, Jan. 3, 24 Stat. 354, c. 13.. 452 1887, Jan. 3, 24 Stat. 355, c. 14.. 452 1887, Jan. 3, 24 Stat. 356, c. 15.. 452 1887, Jan. 3, 24 Stat. 358, c. 16.. 452 1887, Jan. 3, 24 Stat. 882, c. 17.. 452 1887, Jan. 3, 24 Stat. 882, c. 18.. 452 1887, Jan. 3, 24 Stat. 883, c. 19.. 452 1887, Jan. 3, 24 Stat. 884, c. 20.. 452 1887, Feb. 4, 24 Stat. 379, c. 104 649, 653 1887, Feb. 8, 24 Stat. 390, c. 119 24 1887, Mar. 3, 24 Stat. 505, c. 359 178 1888, Dec. 22, 25 Stat. 638, c. 7.. 452 1888, Dec. 24, 25 Stat. 638, c. 8.. 452 1888, Dec. 24, 25 Stat. 1251, c. 9 452 1888, Dec. 24, 25 Stat. 1251, c. 10 452 1888, Dec. 24, 25 Stat. 1252, c. 11 452 1888, Dec. 24, 25 Stat. 1252, c. 12 452 1888, Dec. 24, 25 Stat. 1252, c. 13 452 1888, Dec. 24, 25 Stat. 1252, c. 14 452 1888, Dec, 24, 25 Stat. 1252, c. 15 452 1888, Dec. 25, 25 Stat. 1253, c. 16 452 1888, Dec. 25, 25 Stat. 1253, c. 17 452 1889, Jan. 1, 25 Stat. 639, c. 18 .. 452 1889, Feb. 25, 25 Stat. 693, c. 236 680, 682 1889, Mar. 2, 25 Stat. 855, c. 382 653 1890, June 10, 26 Stat. 131, c. 407 37, 39 1890, July 2, 26 Stat. 209, c. 647 212 PAGE 1891, Mar. 3, 26 Stat. 826, c. 517 38, 39, 166, 527, 528, 584, 681, 683, 684, 685 1891, Mar. 3, 26 Stat. 854, c. 539 65, 75, 78, 86, 89, 90, 501 1891, Mar. 3, 26 S,tat. 1094, c. 561 289 1892, Dec. 28, 27 Stat. 409, c. 14 425, 440, 443, 446, 451, 452, 455, 459, 460, 461, 462, 463, 464, 465, 499 1892, Dec. 28, 27 Stat. 410, c. 15 452 1892, Dec. 28, 27 Stat. 412, c. 16 452 1893, Mar. 2, 27 Stat. 531, c. 196 342 1894, Dec. 24, 28 Stat. 595, c. 8 452 1894, Dec. 24, 28 Stat. 596, c. 9 452 1894, Dec. 24, 28 Stat. 596, c. 10 452 1894, Dec. 26, 28 Stat. 596, c. 11 452 1894, Dec. 27, 28 Stat. 597, c. 12 452 1894, Dec. 27, 28 Stat. 1022, c. 13 452 1894, Dec. 29, 28 Stat. 599, c. 14 452 1894, Dec. 29, 28 Stat. 599, c. 15 452 1894, Dec. 29, 28 Stat. 1022, c. 16 452 1894, Dec. 29,28 Stat. 1022, c. 17 452 1895, Feb. 8, 28 Stat. 645, c. 64 207 1896, June 1, 29 Stat. 193, c. 303 421, 422 1897, Jan. 20, 29 Stat. 492, c. 68 682 1897, Mar. 3, 29 Stat. 665, c. 387 295 1897, June 4, 30 Stat. 11, c. 2 292 1897, Dec. 29, 30 Stat. 226, c. 3 452 1898, Apr. 25, 30 Stat. 364, c. 189 358, 359, 363, 712 1898, July 1, 30 Stat. 544, c. 541 527 Revised Statutes. § 629.......................... 153 §§ 650-652...................... 684 § 688.......................... 118 § 691.................... 680,684 § 692.................. 680, 681, 684 § 693.......................... 684 § 695.................. 680, 681, 684 § 697.......................... 684 § 702.......................... 166 § 708.......................... 463 § 709. 36, 118, 412, 413, 643, 683 § 716.......................... 119 § 723.......................... 272 § 953.......................... 284 § 997.......................... 502 § 999.......................... 502 § 1012......................... 502 § 1851......................... 168 §§ 1909-1911.................... 166 § 2116.......................... 13 § 2289.......................... 22 § 2291.......................... 22 §§ 2318-2321................... 587 § 2322 ..................... 585, 587 §§ 2323, 2324 .................. 587 § 2325.... 571,572,575,576, 584, 586, 587 TABLE OF STATUTES CITED. xxv PAGE PAGE Rev- Stat, (conf.) Rev. Stat, (conf.) 5 2326 571,575,576,577,581, § 4624..................... 362 583, 584, 586, 587, 588 § 4820...................... 420 § § 2327-2335................ 587 § 4965........262, 264, 265, 267 § 2336 ...................... 585, 587 § 4966 ... 151, 152, 153, 154, § § 2337, 2338 .............. 587 158, 159, 264 § 2339.... 587, 643,644, 645, 647 § 4970.................... 266 §§ 2340-2352....................... 587 § 5136..................... 278 §§ 2395,2396....................... 307 § 5239..................... 412 § 3210 ........................... 182 § 5440.................... 419 § 3593............................ 182 District of Columbia. § 3616............................ 183 Rev. Stat., § 727.. 418, 419, §§ 3617, 3618 ..................... 182 422, 423 §§ 3620,3621 ...................... 182 § 728.. 418,419, § 3642............................ 182 421, 422, 423 § 4233................. 193, 194, 202 §§ 729, 730.. 418, § 4400............................ 195 419,422, 423 § 4412............................ 195 (B.) Statutes of the States and Territories. Alabama. Louisiana (conf.). 1898, Nov. 30, Laws of 1898- 1861, Mar. 1, Laws of 1861, 1899, p. 19, No. 9 .... 113 114 No. 57 ...................... 122, 129 Arizona. 1871, Feb. 24, Laws of 1871, Rev. Stat, of 1887, No. 30 123, 133, 135, 137, §§ 817, 818 ..................... 164 141, 142, 145, 146 § 822........................... 164 1872, Apr. 26, Laws of 1872, § 945........................... 164 No. 73................. 125 § 2114.......................... 163 1876, Feb. 24, Laws of 1876, § 2120.......................... 163 No. 16 123, 124, 131, 133, § 2122.......................... 163 140, 142, 143, 144, 145, 146 tit. 15, c. 20.................... 168 1890, Laws of 1890, p. 121, tit. 34, c. 4................ 163, 168 No. 106.................... 312, 316 Arkansas. Civil Code, 1889, Mar. 25, Laws of 1889, art. 3540 ......... 127, 128 p. 76 .......................... 351 art. 3544 ............. 127, 128 Georgia. art. 3547 ........ 127, 128 1872, Aug. 23, Laws of 1872, Massachusetts. p. 456, No. 339 .. 529, 533, 534 1838, Laws of 1838, c. 163 1877, Feb. 22, Laws of 1877, 402, 403 p. 347, No. 392 ................ 534 Pub. Stat, of 1882, c. 157 Illinois. 401, 402 1857, Feb. 13, Priv. Laws of New Jersey. 1857, p. 576.................... 627 1898, Laws of 1898, p. 894, c. Iowa. 237.......................... 173 1862, Laws of 1862, c. 169.. 102 New York. 1867, Laws of 1867, c. 113.. 104 1848, Laws of 1848, c. 40 Code of 1873, § 1289... 102, 55, 56, 58 103, 104 1853, Laws of 1853, c. 333 § 1308 ....... 104 55, 56 Kansas. 1866, Laws of 1866, c. 838.. 56 1874, Laws of 1874, p. 143, c. 1890, Laws of 1890, c. 564.. 57 93 ............................. 351 1892, Laws of 1892, c. 399 Louisiana. 33, 34, 36 1858, Mar. 18, Laws of 1858, Rev. Stat, of 1889, vol. 3, p. No. 165 ................... 122, 140 1959, c. 18............. 57 1859, Mar. 17, Laws of 1859, North Dakota. No. 191......................... 122 Rev. Stat., § 7605.............. 184 xxvi TABLE OF STATUTES CITED. PAGE Oregon. Hill’s Code, § 318.............. 288 § 3524 ........ 290 Tennessee. 1877, Mar. 19, Laws of 1877, p. 44, c. 31....... 115, 116, 117 Texas. 1889, Apr. 3, Laws of 1889, p. 87, c. 78 ........... 269, 271 PAGE Texas (con?.). 1893, May 11, Laws of 1893, p. 158, c. 102............ 269, 271 1897, Apr. 30, Laws of 1897, p. 140, c. 104 ................ 271 1897, May 15, Laws of 1897, p. 168, c. 120................. 271 (C.) Foreign Statutes. Canada. Rev. Stat, of 1886, vol. 1, c. 79 ..................... 192, 195, 197 Great Britain. 1833, 3 & 4 William IV, c. 15 157 Mexico. 1824, Aug. 18, Reynolds’ Span. & Mex. Law, p. 121 256, 556, 557 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1899. JONES v. MEEHAN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. No. 7. Argued April 27, 28, 1898. —Decided October 30,1899. A good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any 'act of Congress, or any patent from the Executive authority of the United States. The question in every case is whether the terms of the treaty are such as to manifest the intention of the parties to make a present grant to the persons named. A treaty between the United States and an Indian tribe must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians. When the United States, in a treaty with an Indian tribe, and as part of the consideration for the cession by the tribe of a tract of country to the United States, make a reservation to a chief or other member of the tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual, property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation. VOL. CLXXV—1 J. 2 OCTOBER TERM, 1899. Opinion of the Court. The effect of the treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chippewa Indians, by which those bands ceded to the United States all their right, title and interest in a large tract of country, and by which “ there shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of the Thief River for the chief Moose Dung,” was to grant him an alienable title in fee in the quantity of land at the designated place, subject only to its selection in due form, and to the definition of its boundaries by survey and patent. The right of inheritance, at the time of the death of the grantee in 1872, in land granted in fee by the United States by an Indian treaty to a member of an Indian tribe, whose tribal organization was still recognized by the Government of the United States, is controlled by the laws, usages and customs of the tribe, and not by the law of the State in which the land lies, nor by any action of the Secretary of the Interior. The construction of treaties is the peculiar province of the judiciary ; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. The case is stated in the opinion. Mr. James A. Kellogg for appellant. Mr. Cushman K Davis for appellees. Mr. Frank B. Kellogg and Mr. C. A. Severance were with him on the brief. Mr. Justice Gray delivered the opinion of the court. This was a bill in equity, filed in the Circuit Court of the United States for the District of Minnesota, by Patrick Meehan and James Meehan, citizens of Wisconsin, against Ray W. Jones, a citizen of Minnesota, to quiet title in a strip of land ten feet wide along the westerly shore of the Red Lake River, in the county of Polk and State of Minnesota, extending from the northeasterly intersection of the plat of the village of Thief River Falls with the shore at a point near the junction of the two rivers, and being a part of lot 1 in section 34, township 154 and range 43. For convenience, the parties will be designated, throughout this opinion, according to their position in the court below; the Meehans, now appellees, as the plaintiffs; and Jones, now appellant, as the defendant. JONES v. MEEHAN. 3 Opinion of the Court. Each party derived title under the “ reservation of six hundred and forty acres near the mouth of Thief River for the chief Moose Dung” in article 9 of the treaty made at the Old Crossing of Red Lake River in the State of Minnesota, on October 2, 1863, between the United States, by their Commissioners, Alexander Ramsay, a Senator of the United States for the State of Minnesota, and Ashley C. Morrill, agent for the Chippewa Indians, of the one part, and the Red Lake and Pembina bands of Chippewa Indians, by their chiefs, headmen and warriors, of the other part, and afterwards ratified by the Senate, with amendments assented to by the Indians. 13 Stat. 667-671. The material provisions of that treaty were as follows: By article 2, those bands of Chippewas ceded to the United States all their right, title and interest in a large tract of country to the west of Thief River in the State of Minnesota, including all the American valley of the Red River of the North. By article 3, “ In consideration of the foregoing cession, the United States agree to pay to the said Red Lake and Pembina bands of Chippewa Indians the following sums, to wit, twenty thousand dollars per annum for twenty years; the said sum to be distributed among the Chippewa Indians of the said bands in equal amounts per capita.” By article 5, “ To encourage and aid the chiefs of said bands in preserving order, and inducing, by their example and advice, the members of their respective bands to adopt the habits and pursuits of civilized life, there shall be paid to each of the said chiefs annually, out of the annuities of the said bands, a sum not exceeding one hundred and fifty dollars, to be determined by their agents according to their respective merits And for the better promotion of the above objects, a further sum of five hundred dollars shall be paid at the first payment to each of the said chiefs to enable him to build for himself a house.” By article 8, “In further consideration of the foregoing cession, it is hereby agreed that the United States shall grant to each male adult half-breed or mixed-blood who is related 4 OCTOBER TERM, 1899. Opinion of the Court. by blood to the said Chippewas of the said Red Lake or Pembina bands, who has adopted the habits and customs of civilized life, and who is a citizen of the United States, a homestead of one hundred and sixty acres of land, to be selected at his option, within the limits of the tract of country hereby ceded to the United States, on any land not previously occupied by actual settlers or covered by prior grants, the boundaries thereof to be adjusted in conformity with the lines of the official surveys when the same shall be made, and with the laws and regulations of the United States affecting the location and entry of the same.” By one of the amendments made by the Senate, with the assent of the Indians, there was inserted at the end of article 8 the following: “ Provided, that no scrip shall be issued under the provisions of this article, and no assignments shall be made of any right, title or interest at law or in equity until a patent shall issue, and no patent shall be issued until due proof of five years’ actual residence and cultivation, as required by the act entitled (An act to secure homesteads on the public domain.’ ” By article 9 of the treaty, “ Upon the urgent request of the Indians, parties to this treaty, there shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of Thief River for the chief Moose Dung, and a like reservation of six hundred and forty acres for the chief Red Bear on the north side of Pembina River.” Moose Dung or Monsimoh was one of the principal chiefs of the Red Lake band of Chippewa Indians, and his name was the first of the Indian signatures to the treaty, all of which were by marks only. The plaintiffs, against the defendant’s objection, introduced in evidence certified copies of extracts from the journal of the proceedings at the negotiation of the treaty, annexed to the report made by Mr. Ramsay to the Commissioner of Indian Affairs in October, 1863. That journal stated that “Moose Dung, who was really the most influential of all the chiefs, stood at the head of a party embracing the large majority of all the bands who were favorable to and even anxious for JONES v. MEEHAN. 5 Opinion of the Court. a treaty.” It also showed that part of the discussion was as follows: Moose Dung said: “ I have taken the mouth of Thieving River as my inheritance. I do not ask the chiefs here where I shall go. I make my home there. I wanted it for a reservation for myself.” “ I used to think that this was the proper place for me to settle; that it would be an inheritance for my children — where all my children could have enough to live on in the future.” Mr. Ramsay answered: “ Tell him I don’t care anything about the mouth of Thieving River. He can have it if he wants it.” Moose Dung replied: “ I accept of the proposition, because I see that I am going to be raised from want to riches — to be raised to the level of the white man.” “ You and the Government have used every exertion for a great many years to bring about a treaty. I do not want you to exert yourselves in vain. I now give up the tract of country.” The journal further stated that “ at the end of a session of three and a half hours’ duration Moose Dung, who has stood for an hour weighing and deliberating on every separate provision of this treaty, asking for this explanation and that modification, appearing to labor under a serious sense of the great responsibility he was taking, at last touched the pen which was to affix his vicarious sign-manual to the treaty,” and the other chiefs followed his example. The plaintiffs also, against the like objection, introduced testimony of the secretary of the commission, of the official interpreter, and of other persons, Indians as well as white persons, who were present at the negotiations of the treaty, to the same effect. Moose Dung selected as his reservation, under the ninth article of the treaty, six hundred and forty acres, a part of which was lot 1 in section 34, including the strip now in controversy ; and he lived on that land at the mouth of Thief River, and made it his home, and had a log house, a garden and a fish trap there. He died in 1872, before the lands were surveyed, and was succeeded as chief by his eldest son, who had been born at Red Lake in 1828, and who was known to the whites by the name of Moose Dung or Monsimoh, and to the Indians as Mayskokonoyay, meaning “ The one that wears the 6 OCTOBER TERM, 1899. Opinion of the Court. red robes;” and, ever since the making of the treaty, his father and himself, in succession, sustained tribal relations with the Red Lake band of Chippewa Indians, and that band continued to be recognized as an Indian tribe by the Government of the United States. On June 27, 1879, the United States Indian agent at White Earth, Minnesota, wrote to the Commissioner of Indian Affairs at Washington that Moose Dung the younger, the only surviving son of Moose Dung named in the treaty, requested that the land selected by his father might be set aside for his benefit. On July 25,1879, the Commissioner of Indian Affairs answered that Moose Dung the younger should at once locate the desired lands in accordance with the description in the treaty; and that it must be shown to the satisfaction of the Office of Indian Affairs that his father left no other children. On September 10, 1879, the agent replied that “ the heirs of Moose Dung ” had selected the lands (describing them particularly) that had been selected by the elder Moose Dung before his death. On September 30,1879, the Secretary of the Interior, on the recommendation of the Commissioner of Indian Affairs, approved “ the selection made by the heirs of Moose Dung,” and directed the Commissioner of the General Land Office to “ take the necessary steps for the protection of the said lands so reserved for the benefit of those entitled, as contemplated by the treaty stipulations; ” and they were thereupon set apart accordingly, and were designated on all government maps as “ Moose Dung’s reservation.” From the time of this selection Moose Dung the younger lived upon, exercised dominion over, and claimed to own, the land so selected, and cultivated part of it, leased other parts of it for pasturage, and sold sand off it. On November 7, 1891, Moose Dung the younger, describing himself as “ Moose Dung, of Thief River Falls, Polk County, Minnesota,” made a lease to the plaintiffs, for ten years, at an annual rent of twenty-five dollars, of this strip of land and all shore rights for storing logs, erecting piles and booms, and for all purposes connected with lumbering; and he affixed to it his mark and seal, and acknowledged it before a notary public, JONES v. MEEHAN. 7 Opinion of the Court. after its contents had been fully explained to him through an interpreter. On November 10,1891, this lease was recorded in the registry of deeds for the county. The plaintiffs accepted the lease and paid the rent according to its terms; and in 1892 they erected a large saw-mill on the bank of Thief River, a short distance below the strip leased, and entered upon this strip, drove piles and strung booms in the river opposite, and stored logs there, and thenceforth used the strip as one shore of the mill-pond appurtenant to their saw-mill. The land selected by Moose Dung was near the village of Thief River Falls, which, when this lease was made, contained some fifty inhabitants and had no railroad and no important industry, and land there was of little value. But in 1892, after the erection of the plaintiffs’ saw-mill, the Great Northern Railway Company built a railroad to the village, a large settlement sprang up there, and the land increased in value. On July 20, 1894, Moose Dung the younger, describing himself as “ Monsimoh, (commonly bailed Moose Dung,) heir and successor of his father Monsimoh, (also commonly called Moose Dung,)” made a lease of the whole of lot 1 in section 34, and of all appurtenances and riparian rights thereto belonging, for twenty years, to the defendant, at an annual rent of two hundred dollars; and on July 23, 1894, this lease was recorded in the registry of deeds. The defendant, at the time of obtaining this lease, knew of the prior lease and possession of the plaintiffs. On August 4, 1894, Congress passed a joint resolution authorizing the Secretary of the Interior “to approve, if in his discretion he deems the same proper and advisable, and upon such terms as he may impose,” this lease to the defendant. 28 Stat. 1018. On December 27, 1894, the Secretary of the Interior approved this lease, upon condition (to which both the lessor and the lessee assented) that the annual rent should be four hundred dollars, and “ be paid to the agent in charge of the Chippewa Indians in Minnesota, and by him paid to the parties found to be entitled thereto by this Department,” and should be readjusted every five years, and “ the said premises, nor any part thereof, shall not be sublet 8 OCTOBER TERM, 1899. Opinion of the Court. without the written consent of the lessor, his heirs or assigns, and the approval of the Secretary of the Interior.” The Circuit Court held that the reservation in the treaty to the elder Moose Dung was in the nature of a grant of title to him, burdened with no restriction or condition save that of selection and identification; that upon the selection and location the title in the selected lands vested in Moose Dung the younger as his eldest son and successor; that the latter’s lease of November 9, 1891, to the plaintiffs was a valid and subsisting lease of the strip in controversy, and needed no approval by the Secretary of the Interior; that the lease made on July 20, 1894, to the defendant, and- approved by the Secretary of the Interior, was subordinate to the lease to the plaintiffs, and, as against them, conveyed no right to the occupancy dr use of the strip; and that the plaintiffs were entitled to have the rights and privileges under the earlier lease vested and quieted in them as against the claims of the defendant. 70 Fed. Rep. 453. The defendant appealed to this court. The fundamental question in the case is, What was the nature of the title which the elder chief Moose Dung took under the treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chippewa Indians ? Was it a mere right of occupancy, with no power to convey the land except to the United States or by their consent? Or was it substantially a title in fee simple with full power of alienation ? Undoubtedly, the right of the Indian nations or tribes to their lands within the United States was a right of possession or occupancy only; the ultimate title in fee in those lands was in the United States; and the Indian title could not be conveyed by the Indians to any one but the United States, without the consent of the United States. Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1,17; Worcester v. Georgia, 6 Pet. 515, 544; Doe v. Wilson, 23 How. 457, 463 ; United States v. Cook, 19 Wall. 591; United States n. Kagama, 118 U. S. 375, 381; Buttz v. Northern Pacific Bailroad, 119 U. S. 55, 67. In the leading case of Johnson v. McIntosh, (1823) it was therefore held that grants of lands JONES v. MEEHAN. 9 Opinion of the Court. northwest of the river Ohio, made in 1773 and 1775 by the chiefs of certain Indian tribes, constituting the Illinois and the Pinkeshaw nations, to private individuals, conveyed no title which could be recognized in the courts of the United States; and Chief Justice Marshall, in delivering judgment, said: “ The usual mode adopted by the Indians for granting lands to individuals has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated.” 8 Wheat. 598. Accordingly, by several early treaties between the United States of the one part, and the Chippewas and other Indian nations of the other part, the said Indian nations acknowledged themselves to be under the protection of the United States, and of no other sovereign whatever; the United States relinquished and quitclaimed to the said nations respectively all the lands lying within certain limits, to live and hunt upon, and otherwise occupy as they saw fit; but the said nations, or either of them, were not to be at liberty to dispose of those lands, except to the United States. Treaties of January 1, 1785, art. 2; January 9, 1789, art. 3; August 3, 1795, arts. 4, 5; 7 Stat. 16, 29, 52. Soon after the adoption of the Constitution, the same doctrine was repeatedly recognized and enforced by Congress in temporary acts regulating trade and intercourse with the Indian tribes. By the act of July 22, 1790, c. 33, § 4, it was “enacted and declared that no sale of lands made by any Indians, or any nation or tribe of Indians, within the United States, shall be valid, to any person or persons, or to any State, whether having the right of preemption to such lands or not, unless the same shall be made and duly executed at some public treaty held under the authority of the United States.” 1 Stat. 138. In the act of March 1, 1793, c. 19, § 8, the corresponding provision was that “ no purchase or grant of lands, or of any title or claim thereto, from any Indians, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by a treaty or convention entered into pursuant to the Constitution.” 1 Stat. 330. In the acts of May 19, 1796, c. 30, 10 OCTOBER TERM, 1899. Opinion of the Court. § 12, and March 3, 1799, c. 46, § 12, this provision was reenacted, substituting for the words “purchase or grant” the words “ purchase, grant, lease or other conveyance,” and for the words “ any Indians,” in the plural, the words “ any Indian,” in the singular, so as to read: “ No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made 'by treaty or convention entered into pursuant to the Constitution.” 1 Stat. 472, 746. And this language of the temporary acts of 1796 and 1799 was repeated in the first permanent enactment upon the subject, being the act of March 30, 1802, c. 13, § 12. 2 Stat. 143. It is well settled that a good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress, or any patent from the Executive authority of the United States. Johnson v. McIntosh, 8 Wheat, above cited; Mitchel v. United States, 9 Pet. 711, 748; Doe v. Beardsley, 2 McLean, 417, 418; United States v. Brooks, 10 How. 442, 460; Doe v. Wilson, 23 How. 457, 463; Crews v. Burcham, 1 Black, 356; Holden v. Joy, 17 Wall. 211, 247; Best v. Polk, 18 Wall. 112, 116; New York Indians v. United States, 170 U. S. 1. The question in every case is whether the terms of the treaty are such as to manifest the intention of the parties to make a present grant to the persons named. The Indian tribes within the limits of the United States are not foreign nations; though distinct political communities, they are in a dependent condition; and Chief Justice Marshall’s description, that “ they are in a state of pupilage,” and “ their relation to the United States resembles that of a ward to his guardian,” has become more and more appropriate as they have grown less powerful and more dependent. Cherokee Nation v. Georgia, 5 Pet. 1, 17; Elk v. Wilkins, 112 U. S. 94, 99; United States v. Kayama, 118 U. S. 375, 382, 384; Stephens n. Choctaw Nation, 174 U. S. 445, 484. In construing any treaty between the United States and an JONES v. MEEHAN. 11 Opinion of the Court. Indian tribe, it must always (as was pointed out by the counsel for the appellees) be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians. . Worcester n. Georgia, 6 Pet. 515 ; The Kansas Indians, 5 Wall. 737, 760; Choctaw Nation v. United States, 119 U. S. 1, 27, 28. In the case of Worcester v. Georgia, (1832) Chief Justice Marshall, speaking of article 4 of the treaty of Hopewell of November 28,1785, between the United States and the Cherokee Indians, which defined “ the boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States,” (7 Stat. 19,) said: “ There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them.” “ Is it reasonable to suppose that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word ‘ allotted ’ from the words 1 marked out ’ ? ” 6 Pet. 551, 552. And Mr. Justice McLean, concurring, said: “ The language used in treaties with the Indians should never be construed to their prejudice.” “ To contend that the word ‘ allotted,’ in reference to the lands guarantied to the Indians in certain treaties indicates a favor conferred, rather than a right ac- 12 OCTOBER TERM, 1899. Opinion of the Court. knowledged, would, it would seem, to me, do injustice to the understanding of the parties. How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.” 6 Pet. 582. The defendant’s counsel at the argument relied on an opinion given by Chief Justice Taney, when Attorney General, under the following circumstances: By the treaty made at Camp Tippecanoe in the State of Illinois on October 20, 1832, between the United States and the Pottawatomie tribe of Indians of the Prairie and Kankakee, (while the act of March 30, 1802, c. 13, was in force,) that tribe ceded a large tract of land in Illinois to the United States, and it was provided that “from the cession aforesaid the following tracts shall be reserved, to wit,” a certain number of sections to each of particular Indians named. 7 Stat. 378. On September 20, 1833, Attorney General Taney gave an opinion to the Secretary of War that “ these reservations are excepted out of the grant made by the treaty, and did not therefore pass by it; consequently, the title remains as it was before the treaty ; that is to say, the lands reserved are still held under the original Indian title; ” and therefore “ the Indian occupants cannot convey them to individuals, and no valid cession can be made of their interest but to the United States.” 2 Opinions of Attorneys General, 587. But within a year after that opinion was given, and perhaps in consequence thereof, Congress, in framing a new act regulating trade and intercourse with the Indian tribes, omitted the prohibition, contained in former statutes, of purchases or leases from “any Indian,” and put the provision invalidating Indian conveyances in this altered form: “ No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity, in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” Act of June 30, 1834, c. 161, § 12; 4 Stat. 730. The declaration, retained in this act, of the invalidity of purchases and leases “ from any nation or tribe of JONES v. MEEHAN. 13 Opinion of the Court. Indians,” might include a purchase or lease from any Indian acting by authority derived from his tribe only. Johnson v. McIntosh, 8 Wheat. 543, 593; Smith v. Stevens, 10 Wall. 321, 323; Goodell n. Jackson, 20 Johns. 693, 723. But the inference appears to us to be irresistible that Congress did not intend that there should thenceforth be any general restriction upon the alienation by individual Indians of sections of land reserved to them respectively by a treaty with the United States. And this view is confirmed by the reenactment of the provision, in the very words of the act of 1834, in section 2116 of the Revised Statutes, and by the course of decision in this court in a series of opinions which may conveniently be considered in their chronological order. The supplementary articles of September 28, 1830, to the treaty of Dancing Rabbit Creek of September 27, 1830, between the United States and the Choctaw Nation of Indians, making provision for “various Choctaw persons,” used, as synonymous expressions, the phrases “ shall be entitled to a reservation of,” “ is allowed a reservation of,” “ there shall be granted,” “ there is given,” or “ is granted,” sections of land, either including the present residence and improvement of such persons, or to be located on any unimproved and unoccupied land. 7 Stat. 340. In Gaines n. Nicholson, (1850) 9 How. 356, Mr. Justice Nelson, in delivering the opinion of the court, did say of such a reservation: “ It was so much carved out of the territory ceded, and remained to the Indian occupant, as he had never parted with it. He holds, strictly speaking, not under the treaty of cession, but under his original title confirmed by the Government in the act of agreeing to the reservation.” 9 How. 365. But that treaty was made before the act of Congress of 1834; the only question in the case was of the effect of the reservation as against a previous grant of land by Congress to a State for the support of schools; the court had no occasion to define, and did not undertake to define, the exact nature of the title granted or confirmed by the treaty; and the suggestion, in accordance with Attorney General Taney’s opinion, above cited, that the treaty rather confirmed the Indian right than granted a new 14 OCTOBER TERM, 1899. Opinion of the Court. title, can hardly be reconciled with the later judgments of the court, to be presently considered, one of which was delivered by the same learned judge. Crews v. Burcham. 1 Black, 352. In concluding the treaty of July, 1, 1835, between the United States and the Caddo nation of Indians, in Louisiana, supplementary articles were added, by which, after a recital that that nation had in 1801 granted to one Francis Grappe (who was a half-blood Caddo) and to his three sons a league land of each, “ it is agreed ” that Grappe’s legal representatives and his said three sons “ shall have their right to the said four leagues of land reserved to them,.and their heirs and assigns forever. Thei said land to be taken out of the lands ceded to the United States by the said Caddo nations of Indians as expressed in the treaty to which this article is supplementary. And the said four leagues of land shall be laid off in one body,” at a place described, in conformity with the boundaries “ expressed in the original deed of gift ” from the Caddo nation to Grappe and his three sons. 7 Stat. 473. In United States n. Brooks, (1850) 10 How. 442, it was argued for the United States that the effect of this agreement was simply that the Grappes should retain their right, whatever it might be, under the reservation of 1801; and that that reservation was not authorized by the laws then in force there. But it was adjudged that its effect was to vest in the Grappes an absolute title in fee simple, which they might convey to any one; the court, speaking by Mr. Justice Wayne, saying: “ We think that the treaty gave to the Grappes a fee simple title to all the rights which the Caddoes had in these lands, as fully as any patent from the government could make one. The reservation to the Grappes, ‘ their heirs and assigns forever,’ creates as absolute a fee as any subsequent act upon the part of the United States could make. Nothing further was contemplated by the treaty to perfect the title. Brooks being the alienee of the Grappes for the entire reservation, he may hold it against any claim of the United States, as his alienors would have done.” 10 How. 460. In"that case, therefore, an agreement that the persons nanied “ shall have their right” JONES v. MEEHAN. 15 Opinion of the Court. to “ certain lands reserved,” and the lands “ shall be laid off,” was given the same effect as a present grant or patent. It is true that the treaty there in question reserved the right to those persons, “ and their heirs and assigns forever.” But the like construction has since been given to reservations unaccompanied by any words of inheritance. By the first article of a treaty made on the Tippecanoe River in the State of Indiana on October 27, 1832, between the United States and the Pottawatomies of that State and of Michigan Territory, that tribe of Indians ceded their title and interest to lands in Indiana, Illinois and Michigan to the United States. By article.2, “from the cession aforesaid the following reservations are made ” to certain bands of Indians. And by article 3, “ the United States agree to grant to each of the following persons the quantity of land annexed to their names, which lands shall be conveyed to them by patent.” “ The foregoing reservations shall be selected, under the direction of the President of the United States, after the lands shall have been surveyed, and the boundaries to correspond with the public surveys.” 7 Stat. 399-401. In Doe v. Wilson^ (1859) 23 How. 457, it was held, in an action of ejectment, that a warranty deed made by Petchico, (a Pottawatomie chief, one of the persons named in the third article of that treaty,) in February, 1833, to citizens of Indiana, before the lands had been surveyed, or a patent granted, passed a good title as against a deed made by his heirs after the issue of the patent and his death. The court, speaking by Mr. Justice Catron, said: “ The Pottawatomie nation was the owner of the possessory right of the country ceded, and all the subjects of the nation were joint owners of it. The reservees took by the treaty, directly from the nation, the Indian title; and this was the right to occupy, use and enjoy the lands, in common with the United States, until partition was made in the manner prescribed.” This sentence has sometimes been supposed to indicate that by the treaty the reservees took directly from the Indian nation its possessory right only, defined as “the right to occupy, use and enjoy the lands in common with the United States,” But this was qualified by 16 OCTOBER TERM, 1899. Opinion of the Court. the concluding words of the same sentence, 11 until partition was made in the manner prescribed,” that is to say, by the treaty. And the court went on to say, in the most distinct terms : “ The treaty itself converted the reserved sections into individual property. The Indians as a nation reserved no interest in the territory ceded; but, as a part of the consideration for the cession, certain individuals of the nation had conferred on them portions of the land, to which the United States title was either added or promised to be added; and it matters not which, for the purposes of this controversy for possession. The United States held the ultimate title, charged with the right of undisturbed occupancy and perpetual possession in the Indian nation, with the exclusive power in the Government of acquiring the right. Although the Government alone can purchase lands from an Indian nation, it does not follow that, when the rights of the nation are extinguished, an individual of the nation who takes as private owner cannot sell his interest. The Indian title is property, and alienable unless the treaty had prohibited its sale. So far from this being the case in the instance before us, it is manifest that sales of the reserved sections were contemplated, as the lands ceded were forthwith to be surveyed, sold and inhabited by a white population, among whom the Indians could not remain.” 23 How. 463, 464. In Crews v. Burcham^ (1861) 1 Black, 352, a warranty deed made by Francis Besion, another person named in the third article of that treaty, under like circumstances, to one Armstrong, was accordingly held to vest the legal title in him; and the scope and effect of the decision in Doe v. Wilson were clearly brought out in the opinion delivered by Mr. Justice Nelson, as follows: “ It was there held, that the reservation created an equitable interest in the land to be selected under the treaty; that it was the subject of sale and conveyance; that Petchico was competent to convey it; and that his deed, upon the selection of the land and the issue of the patent, operated to vest the title in his grantee. It is true that no title to the particular lands in question could vest in the reservee, or in his grantee, until the location by th§ President, JONES v. MEEHAN. 17 Opinion of the Court. and, perhaps, the issuing of the patent; but the obligation to make the selection as soon as the lands were surveyed, and to issue the patent, is absolute and imperative, and founded upon a valuable and meritorious consideration. The lands reserved constituted a part of the compensation received by the Pottawatomies for the relinquishment of their right of occupancy to the Government. The agreement was one which, if entered into by an individual, a court of chancery would have enforced by compelling the selection of the lands and the conveyance in favor of the reservee, or, in case he had parted with his interest, in favor of his grantees. And the obligation is not the less imperative and binding, because entered into by the Government. The equitable right, therefore, to the lands, in the grantee of Besion, when selected, was perfect; and the only objection of any plausibility is the technical one as to the vesting of the legal title.” “We think it quite clear, if this patent had issued to Besion in his lifetime, the title would have inured to his grantee. The deed to Armstrong recites the reservation to the grantee of the half section under the treaty, and that it was to be located by the President after the lands were surveyed; and then, for a valuable consideration, the grantee conveys all his right and title to the same with a full covenant of warranty. The land is sufficiently identified to which Besion had the equitable title, which was the subject of the grant, to give operation and effect to this covenant on the issuing of the patent, within the meaning of this act of Congress. [Act of May 20,1836, c. 76; 5 Stat. 31.] The act declares the land shall inure to, and become vested in, the assignee, the same as if the patent had issued to the deceased in his lifetime.” “ Some expressions in the opinion delivered in the case of Doe v. Wilson, the first case that came before us arising out of this treaty, were the subject of observations by the learned counsel for the appellant in the argument, but which were founded on a misapprehension of their scope and purport. It was supposed that the court had held that the reservee was a tenant in common with the United States after the treaty of cession and until the survey and patent. It will be seen, however, that the tenancy in common there mentioned VOL. CLXXV—2 18 OCTOBER TERM, 1899. Opinion of the Court. referred to the right to occupy, use and enjoy the land in common with the Government, and had no relation to the legal title.” 1 Black, 356, 357. By those two decisions it was determined that the “ reservations,” created by the treaty with the Pottawatomies of October 27, 1832, in favor of individual Indians, by the words “ the United States agree to grant” to each of them sections of land, “ which lands shall be conveyed to them by patent,” had the effect of granting a present and alienable interest to each. In both those decisions Chief Justice Taney concurred — which is worthy of special notice in view of the different opinion, above cited, which he had given, when Attorney General, upon the effect of similar reservations in a treaty made with another band of Pottawatomies seven days earlier, but promulgated by the President at the same time as this treaty. 7 Stat. 378, 399. And the two decisions were cited and approved by this court, speaking of Mr. Justice Matthews, in Prentice v. Stearns, (1885) 113 U. S. 435, 446, 447. See also the opinion delivered by Mr. Justice Miller in the Circuit Court in Prentice v. Northern Pacific Railroad, (1890) 43 Fed. Rep. 270, 275. In the treaty of June 3, 1825, between the United States and the Kansas nation of Indians, it was provided, by article 6, that from the lands thereby ceded to the United States there should be made reservations of one mile square for each of the half-breeds named; and, by article 11, that “ the said Kansas nation shall never sell, relinquish or in any manner dispose of the lands, herein reserved, to any other nation, person or persons whatever, without the permission of the United States for that purpose first had and obtained.” 7 Stat. 245, 247. The act of Congress of May 26, 1860, c. 61, after reciting that the lands so reserved had been surveyed and allotted to each of the half-breeds in accordance with article 6 of the treaty, enacted that “ all the title, interest and estate of the United States is hereby vested in the said res-ervees, who are now living, to the land reserved, set apart and allotted to them,” and in the heirs of those deceased, “ but nothing herein contained shall be construed to give any JONES v. MEEHAN. 19 Opinion of the Court. force, efficacy or binding effect to any contract, in writing or otherwise, for the sale or disposition of any lands named in this act, heretofore made by any of said reservees or their heirs; ” and it was further enacted that if any of the reservees, or the heirs of any one deceased, should not desire to occupy the lands to which they were entitled by the provisions of this act, the Secretary of the Interior, upon their request, should be authorized to sell the lands for their benefit, and to issue patents to the purchasers. 12 Stat. 21. In Smith v. Stevens, (1870) a deed made by one of those half-breeds, shortly after the passage of that act, without the authority or assent of the Secretary of the Interior, was adjudged by this court, speaking to Mr. Justice Davis, to be void, upon the single ground “ that the statute, having provided the way in which these half-breed lands could be sold, by necessary implication prohibited their sale in any other way.” 10 Wall. 321, 326. By the treaty with the Chickasaws of May 24, 1834, it was agreed, in article 5, that “the following reservations be granted in fee: To heads of families, being Indians or having Indian families,” a certain number of sections of land; and, by article 6, “ also reservations of a section to each shall be granted to ” other members of the tribe, of the age of twenty-one years and upwards, according to a list to be made out by seven chiefs named in the treaty, and filed with the agent, “ upon whose certificate of its believed accuracy the register and receiver shall cause said reservations to be located upon lands fit for cultivation.” 7 Stat. 451, 452. It may be observed that article 6, differing in these respects from article 5, used the future tense, “shall be granted,” and omitted the words “in fee.” Yet in Best v. Polk, (1873) 18 Wall. 112, this court held that the treaty itself conferred a full title upon an Indian to whom lands were reserved by article 6, and, again speaking by Mr. Justice Davis, said: “ Can it be doubted that it was the intention of both parties to the treaty to clothe the reservees with the full title ? If it were not so, there would have been some words of limitation indicating a contrary intention. Instead of this, there is nothing to show that a further grant, or any additional evidence of title, were 20 OCTOBER TERM, 1899. Opinion of the Court. contemplated. Nor was this necessary, for the treaty proceeded on the theory that a grant is as valid by a treaty as by an act of Congress, and does not need a patent to perfect it. We conclude, therefore, that the treaty conferred the title to these reservations, which was complete when the locations were made to identify them.” 18 Wall. 116. “The treaty granted the land, but the location had to be fixed before the grant could become operative. After this was done, the estate became vested and the right to it perfect, as much so as if the grant had been directly executed to the reservee.” 18 Wall. 118. In support of that conclusion, this court cited decisions of the highest court of the State of Mississippi, in which, after quoting the words of article 6 of the treaty, it was said: “ By this language, a title in fee passed to such persons as were above the age of twenty-one. The term ‘ reservation ’ was equivalent to an absolute grant. The title passed as effectually as if a grant had been executed.” “ The treaty has not contemplated a further grant, or other evidence of title — showing conclusively that by the terms used it was intended that a perfect title was thereby intended to be secured. The Indian, then, under whom complainants claim, had in herself an absolute and unconditional title in fee simple. The title was conferred by the treaty ; it was not however perfect until the location was made ; location was necessary to give identity. The location it seems was duly made, and thus the title to the land in controversy was consummated by giving identity to that which was before unlocated.” Niles n. Anderson, (1841) 5 How. (Miss.) 365, 383; Wray v. Doe, (1848) 10 Sm. &. Marsh. 452, 461. In the treaty of June 24, 1862, between the United States and a tribe of Ottawa Indians, article 3 provided as follows: “ It being the wish of said tribe of Ottawas to remunerate several of the chiefs, councilmen and headmen of the tribe for their services to them many years without pay, it is hereby stipulated that five sections of land are reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen and headmen as the members of the tribe shall in full council determine; and it shall be the duty of the Secre- JONES v. MEEHAN. 21 Opinion of the Court. tary of the Interior to issue patents in fee simple of said lands, when located and apportioned, to said Indians.” 12 Stat. 1238. In v. Clark, (1886) 118 U. S. 250, this court, approving and affirming the judgment of the Supreme Court of Kansas, delivered by Mr. Justice Brewer, in 14 Kansas, 435, held that a deed to a white person from one of those chiefs, of land patented to him pursuant to the treaty, but executed before he had become a citizen of the United States, was void, for the single reason that the treaty itself, as construed by the court, expressly provided, in article 7, that no Indian should alien or incumber the land allotted to him until he had, according to the terms of the treaty, become a citizen of the United States. In the Treaty of Prairie du Chien of July 29,1829, between the United States and certain nations of Chippewa, Ottawa and Pottawatomie Indians, article 4, by which “ there shall be granted by the United States” to each of the persons named, being descendants from Indians, sections of land, it was provided that “ the tracts of land herein stipulated to be granted shall never be leased or conveyed by the grantees or their heirs to any persons whatever without the permission of the President of the United States.” 7 Stat. 321. Of course, under such a provision, no alienation could be valid without the approval of the President. Pickering v. Lomax, (1892) 145 U. S. 310; Lomax v. Pickering, (1899) 173 U. S. 26. The clear result of this series of decisions is that when the United States, in a treaty with an Indian tribe, and as part of the consideration for the cession by the tribe of a tract of country to the United States, make a reservation to a chief or other member of the tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation. 22 OCTOBER TERM, 1899. Opinion of the Court. The letters of the Commissioner of Indian Affairs, referred to in the supplemental brief of the defendant, expressing the views entertained in his office at sundry times as to the effect of a reservation in an Indian treaty to particular Indians without words of present grant, or of inheritance, were, for the most part, written before the subject had been considered by this court; and they fall far short of establishing such a uniform practical construction of the term by the Executive Departments as would warrant the court in overruling its own opinions as expressed in the cases above stated. The treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chickasaw Indians, now before the court, contains in itself peculiarly strong evidence that it was intended to vest in the elder chief Moose Dung a full and complete title in the land reserved to him. According to the decisions above cited, such would be the construction of the ninth article, taken by itself, by which “ upon the urgent request of the Indians, parties to this treaty, there shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of Thief River for the chief Moose Dung, and a like’ reservation of six hundred and forty acres for the chief Red Bear on the north side of Pembina River.” And this construction is fortified by other provisions of the treaty, quoted at the beginning of this opinion. By the eighth article, it is “agreed that the United States shall grant. to ” each male adult half-breed or mixed-blood who is related by blood to these Indians, who has adopted the habits and customs of civilized life, and who is a citizen of the United States, a homestead of one hundred and sixty acres, to 'be selected out of the tract ceded, and in conformity with the official surveys when made. That article was amended by the Senate by providing that no scrip should be issued under its provisions, and no assignment should be made of any right, title or interest before the issue of a patent, and no patent should be issued until due proof of five years’ actual residence and cultivation, as required by the homestead act. Act of May 20, 1862, c. 75 ; 12 Stat. 392; Rev. Stat. §§ 2289, 2291. JONES v. MEEHAN. 23 Opinion of the Court. The reservations of four times as much land to each of the chiefs Moose Dung and Red Bear under the ninth article were not made subject, by any provision of the original treaty, or of the Senate amendments, to the condition of adopting the habits and customs of civilized life, or of becoming a citizen of the United States, or of five years’ actual residence and cultivation. But by the fifth article, with the avowed objects “ to encourage and aid the chiefs of said bands in preserving order, and inducing, by their example and advice, the members of their respective bands to adopt the habits and pursuits of civilized life,” each chief was to be paid, not only a certain sum annually out of the annuities payable to the bands by the treaty, but also, at the time of the first payment, a further sum of five hundred dollars “ to enable him to build for himself a house.” The provisions of that article are wholly inconsistent with the theory that the title of the chiefs Moose Dung and Red Bear respectively in the reservation of six hundred and forty acres each, unconditionally set apart for them, was to be less absolute than the title of the half-breeds in their homesteads would be after the conditions of the treaty respecting them had been complied with. The only reasonable construction of all the provisions of the treaty, taken together, is that the ninth article, by which “ there shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of the Thief River for the Chief Moose Dung,” and a reservation of a like quantity of land at another place designated for the chief Red Bear, was intended by the United States, and was understood by the Indians, and took effect, as a present grant to each of these two chiefs of an alienable title in fee in that quantity of land at the designated place, subject only to its selection in due form, and to the definition of its boundaries by survey and patent. Such being in our opinion the construction and effect of the terms of the treaty itself, it is unnecessary to consider the competency of the extrinsic evidence, offered by the plaintiffs, of what took place between the representatives of the parties 24 OCTOBER TERM, 1899. Opinion of the Court. at the negotiations which preceded its execution; for, whether that evidence be admitted or rejected, the conclusion must be the same. Nor is it necessary to consider particularly the argument of the plaintiffs, founded upon the citizenship acquired by Moose Dung the younger under that provision of the act of February 8, 1887, c. 119, § 6, by which “every Indian born within the territorial limits of the United States, to whom allotments shall have been made under the provisions of this act, or under any law or treaty,” is “ declared to be a citizen of the United States, whether said Indian had been or not by birth or otherwise a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the rights of any such Indian to tribal or other property.” ’24 Stat. 390. That provision might not enable individual Indians to alienate lands which were not before alienable. Beck n. Flournoy Co., 27 U. S. App. 618 ; Eells v. Boss, 29 U. S. App. 59; Coombs, petitioner, 127 Mass. 278. But it certainly does not take away a power of alienation conferred by the treaty under which the allotment was made. Another question of importance, fully argued at the bar, is whether Moose Dung the younger inherited all his father’s rights in the reservation. This question is presented by the record in a peculiar aspect. In the amended bill (which is the only one in the record transmitted to this court) the plaintiffs claimed title under the lease made to them by Moose Dung the younger on November 7, 1891, and alleged that at the date of that lease he was the owner in fee simple of the lands in question. In the answer filed January 15, 1895, to that bill, the defendant denied its allegations; and claimed title under the reservation to Moose Dung the elder in the treaty, his selection of lands and the setting apart of them by the Government as such reservation, and the lease executed by Moose Dung the younger, (so the answer alleged, in substantial accord with the form of the lease itself,) “ as his oldest son, heir at law and successor as chief of the Red Lake band of Chippewa Indians,” JONES v. MEEHAN. 25 Opinion of the Court. to the defendant, on July 20, 1894, as afterwards amended and approved by the Secretary of the Interior; and alleged that the Government, ever since its setting apart of the reservation, “ conceded, treated and designated said selection as a reservation which said Moose Dung was entitled to possess and control, subject however to the control of the overseers and agents of the Government of the United States.” The plaintiffs filed a general replication to the answer. The testimony in the case was taken, under order of the court, by a special examiner, before whom (as appears by the record) the following proceedings were had, at the dates mentioned below: On May 21, 1895, the plaintiffs introduced the deposition of John George Morrison, who testified that he was fifty-five, years old, was a Scotch half-breed and had a quarter of Chippewa blood, had lived with the Red Lake band of Chippewa Indians all his life, spoke both English and Chippewa, was a special interpreter at the negotiation of the treaty, and was acquainted with the laws, customs and usages of the Chippewa Indians; and that, according to those laws, customs and usages, a chief like the elder Moose Dung had the right to select a piece of land and to use it as his home, and upon his death his eldest son would inherit all his land, and succeed to his office and powers as chief of the band; and the witness was not cross examined on this point. On June 8,1895, while the defendant was putting in evidence in support of his title as alleged in the answer, “ it was admitted by the complainants’ solicitor that the living chief Monsimoh was the eldest son and successor to all rights of his father under the treaty of October 2, 1863, and the son of the chief Monsimoh who signed that treaty.” On July 15, 1895, the plaintiffs put in evidence the complaint in an action brought by this defendant against them on February 15, 1895, containing an allegation that, upon the death of the old chief Moose Dung, “ his son, Monsimoh, commonly called and known as Moose Dung, survived him and became the sole heir at law and successor of the said Moose Dung, deceased, and thereby succeeded to, has ever since held 26 OCTOBER TERM, 1899. Opinion of the Court. and does now hold all the right, title and interest in and privileges pertaining to said premises, as such heir at law and successor of the said deceased chief Moose Dung.” On July 23 and 24,1895, the defendant introduced testimony of Moose Dung the younger, and of other Indians, showing that his father had two wives, both living at the same time, and left six surviving descendants: three children, (1) Moose Dung the younger, the eldest son by the first wife, (2) a daughter by the first wife, and (3) a daughter by the second wife ; and three grandchildren, (4) a son of a deceased daughter by the first wife, (5) a daughter of a deceased daughter by the first wife, and (6) a son of a deceased son by the second wife. Moose Dung the younger, when so examined as a witness for the defendant^ testified, on cross examination, that he owned the land in question; that his father, when he died, left the land to him alone; and that by the customs of the Red Lake Indians he, upon the death of his father, being his eldest son by his first wife, succeeded him as chief, and was entitled to succeed to all his land; and, being asked, “ Who first spoke to you about these other sisters and children having some interest in the land ? ” answered, “ No one said anything to me about it.” On August 1, 1895, the defendant introduced, against the plaintiffs’ objection that they were incompetent and immaterial, and not within the issues of the case, certified copies, from the records of the Department of the Interior, of certain documents respecting the disposition of $100 deposited with the Indian agent at White Earth, Minnesota, by the defendant, as rent due under the lease to him from Moose Dung the younger, as amended and approved by the Secretary of the Interior, which documents were as follows: 1st. A letter, dated February 4, 1895, from the Commissioner of Indian Affairs to the Indian agent, directing the agent “ to fully investigate the subject as to who are the legal heirs of old chief Moose Dung, for the purpose of ascertaining to whom said rent should be paid; ” to submit all the evidence in the matter in the form of affidavits, with a full report and recommendation ; to per- JONES v. MEEHAN. 27 Opinion of the Court. mit Moose Dung the younger, if he so desired, to be present in person or by attorney at the hearing ; to take his affidavit as part of the evidence; and to hold the money paid by the defendant in the agent’s hands to await the determination of the Commissioner. 2d. The report, dated March 30, 1895, of the Indian agent to the Commissioner of Indian Affairs, enclosing an affidavit, taken on that day, of Moose Dung the younger, stating that he and the two daughters and three grandchildren above mentioned were the only legal heirs of his father, and that they were entitled to share equally with him in the estate, and were all of legal age; affidavits, taken March 5, 1895, of those daughters and grandchildren respectively, stating their relationship and ages, and that they were entitled to share equally with him in the estate; and an affidavit, of the same date, of chiefs and headmen of the tribe to the relationship of the other deponents to Moose Dung the elder, but saying nothing as to their rights of inheritance. Each of these affidavits was signed with the mark of the deponent, and taken by a notary public. The agent reported that he considered this evidence reliable, and had no doubt that these six descendants of the old chief Moose Dung were his only living heirs, and were entitled to share equally in his estate. 3d. A letter, dated April 9, 1895, from the Commissioner of Indian Affairs to the Secretary of the Interior, recommending that these six persons “ be determined to be the heirs of old chief Moose Dung for the purposes of this lease, and that the rents arising from leasing the land granted him by said treaty be divided among them equally.” 4th. A letter, dated April 23,1895, from the Secretary of the Interior to the Commissioner of Indian Affairs, concurring in the recommendation, and returning the papers. 5th. A letter, dated May 4, 1895, from the Commissioner of Indian Affairs to the Indian agent, informing him of the decision of the Secretary of the Interior, and directing him to distribute the proceeds of the lease in his hands in accordance with that decision. The defendant, at the same time, against the like objection, introduced six receipts, dated May 25, 1895, respectively 28 OCTOBER TERM, 1899. Opinion of the Court. signed by the mark of Moose Dung the younger, and of each of the five other descendants of Moose Dung the elder, acknowledging the receipt from the Indian agent of one sixth of $200, “being my share for two quarters rental on lands leased to Ray W. Jones ; ” and a lease, executed July 19, 1895, by Moose Dung the younger and the five other descendants of his father to the defendant, for twenty years from July 20, 1894, of the lot described in the lease to the defendant of that date, the defendant paying rent according to the conditions of that lease, as amended and approved by the Secretary of the Interior. On the coming in of the court on September 3, 1895, the defendant’s solicitor — pursuant to a notice given by him to the plaintiffs’ solicitor on August 3, 1895, after all the evidence in the case had been taken — moved the court for leave to file a supplemental answer, alleging that Moose Dung the younger and the five other descendants of his father, above mentioned, were each entitled to one sixth of the land in controversy; and had, in accordance with the lease made by Moose Dung the younger to the defendant in 1894 and its approval by the Secretary of the Interior, been paid their shares of the rent provided for in that lease and approval; and had likewise themselves executed a lease ratifying and confirming that lease. . On September 9, 1895, the court denied the motion for leave to file the supplemental answer; on September 17, 1895, the cause was argued and submitted ; and on November 9, 1895, the court entered the final decree for the plaintiffs. The present contention of the defendant that the right of the elder Moose Dung in the reservation passed, upon his death, not to his eldest son alone, but to the other children and grandchildren jointly with the eldest son, was clearly inadmissible under the allegations of the original answer. The question whether a supplemental answer should be allowed was a matter within the discretion of the court, largely depending upon the circumstances of the particular case. Hardin v. Boyd, 113 U. S. 756 ; Smith v. Babcock, 3 Sumner, 583. The reasons for denying the motion in this case are JONES v. MEEHAN. 29 Opinion of the Court. not stated in the record. They may have been the late stage of the case at which the motion was made, and a failure to satisfy the court that the facts now attempted to be set up were not known, or, at least, easily accessible, to the defendant or his solicitor long before. But as this court might, even now, if justice appeared to require it, allow an amendment of the pleadings, this part of the case may be more satisfactorily disposed of by considering what the effect of those facts would have been, had they been duly pleaded. Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 447; Wiggins Ferry v. Ohio & Mississippi Railway, 142 U. S. 396, 413, 414. The Department of the Interior appears to have assumed that, upon the death of Moose Dung the elder, in 1872, the title in his land descended by law to his heirs general, and not to his eldest son only. But the elder Chief Moose Dung being a member of an Indian tribe, whose tribal organization was still recognized by the Government of the United States, the right of inheritance in his land, at the time of his death, was controlled by the laws, usages and customs of the tribe, and not by the law of the State of Minnesota, nor by any action of the Secretary of the Interior. In United States v. Shanks, (1870) 15 Minnesota, 369, it was adjudged by the Supreme Court of Minnesota that a probate court of the State had no jurisdiction over the estate of a chief of a tribe of Chippewa Indians, to whom a section of land, to be located by the Secretary of the Interior, had been “granted in fee simple” by the treaty between the United States and that tribe of May 7, 1864, (13 Stat. 693,) and had accordingly been located and a patent therefor issued to him. See also Dole v. Irish, (1848) 2 Barb. 639; Hastings v. Farmer, (1850) 4 N. Y. 293, 294. In one of the cases reported under the name of The Kansas Indians, (1866) 5 Wall. 737, this court, reversing the judgment of the Supreme Court of Kansas in Blue Jacket v. Johnson County, 3 Kansas, 299, held that lands which, pursuant to the treaty of May 10, 1854, between the United States 30 OCTOBER TERM, 1899. Opinion of the Court. and the Shawnee nation of Indians, (10 Stat. 1063,) had been patented to a chief of that nation, were not subject to taxation by the State of Kansas so long as the tribal organization remained and was recognized by the political department of the Government; and Mr. Justice Davis, in delivering judgment, said: “This people have their own customs and laws by which they are governed. Because some of those customs have been abandoned, owing to the proximity of their white neighbors, may be an evidence of the superior influence of our race, but does not tend to prove that their tribal organization is not preserved. There is no evidence in the record to show that the Indians with separate estates have not the same rights in the tribe as those whose estates are held in common.” “As long as the United States recognize their national character, they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of state laws.” 5 Wall. 756, 757. See also the opinion delivered by Judge Woods, with the concurrence of Mr. Justice Harlan, in the Circuit Court, in Waupe-manqua v. Aldrich, (1886) 28 Fed. Rep. 489, 495. Following that decision of this court, it was held by the Supreme Court of Kansas, in an opinion delivered by Mr. Justice Brewer, that land patented to an Indian woman of the Shawnee tribe under the treaty of 1854, descended, upon her death, according to the law of her tribe, and not according to the Kansas statute of descents. Brown n. Steele, (1880) 23 Kansas, 672. In Richar dville v. Thorp, (1886) 28 Fed. Rep. 52, which concerned the inheritance of land patented by the United States to a member of the confederated tribes of Kaskaskia, Peoria, Pinkeshaw and Wea Indians, and in which there was no evidence of any particular law or custom of those tribes, it was held that the rightful heirs of the patentee might maintain their title in the Circuit Court of the United States for the District of Kansas against one claiming under a deed from two of those heirs, approved by the Secretary of the Interior upon a certificate of two chiefs of the tribe that the two grantors were the sole heirs of the patentee; Mr. Justice JONES v. MEEHAN. 31 Opinion of the Court. Brewer, then Circuit Judge, saying that the Secretary of the Interior “had no judicial power to adjudge a forfeiture, to decide questions of inheritance, or to divest the owner of his title without his knowledge or consent.” Upon the evidence contained in this record, it is quite clear that, by the laws, usages and customs of the Chippewa Indians, old Moose Dung’s eldest son and successor as chief inherited the land of his father, to the exclusion of other descendants. Both the half-breed Morrison and the younger Moose Dung, being fully examined on this point, so testified; and there was no direct testimony to the contrary. Morrison had lived with the Red Lake band of Chippewas all his life, spoke their language, and knew their laws, customs and usages; and there is nothing whatever in the case that throws any doubt on the trustworthiness of his testimony. The only matters that can be supposed to lessen the weight of Moose Dung’s testimony are an affidavit, a receipt and a lease, each signed with his mark in 1895, more than three years after the lease to the plaintiffs, and wholly incompetent as independent evidence against them. That affidavit, in which he stated that the two daughters and the three grandchildren were the only legal heirs of his father beside himself and were entitled to share with him in the estate, was procured from him by the Indian agent under direction of the Secretary of the Interior, and, as well as the receipt, was evidently considered by him as mere matter of form with which he was obliged to comply in order to get any part of the rent under the lease of 1894. That it made little impression on his mind is evident from the fact that, when afterwards examined as a witness in this case, in the presence of the counsel for both parties, he testified that no one had ever said anything to him about the daughters and grandchildren having some interest in the land. And it is not without significance that the other chiefs and headmen of the tribe, from whom, under the direction of the Secretary of the Interior, affidavits were likewise obtained to the relationship between old Moose Dung and his six descendants, said nothing, and do not appear to have been asked anything, as to the right of inheritance, or 32 OCTOBER TERM, 1899. Syllabus. as to the laws, customs and usages of the Indians upon that subject. The title to the strip of land in controversy, having been granted by the United States to the elder chief Moose Dung by the treaty itself, and having descended, upon his death, by the laws, customs and usages of the tribe, to his eldest son and successor as chief, Moose Dung the younger, passed by the lease executed by the latter in 1891 to the plaintiffs for the term of that lease; and their rights under that lease could not be divested by any subsequent action of the lessor, or of Congress, or of the Executive Departments. The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. Wilson n. Wall, 6 Wall. 83, 89; Reichart v. Felps, 6 Wall. 160; Smith v. Stevens, 10 Wall. 321, 327; Holden v. Joy, 17 Wall. 211, 247. The Congressional resolution of 1894, and the subsequent proceedings in the Department of the Interior, must therefore be held to be of no effect upon the rights previously acquired by the plaintiffs by the lease to them from the younger chief; and the Decree is affirmed. SCUDDER v. COMPTROLLER OF NEW YORK. ERROR TO THE SURROGATE’S COURT OF THE COUNTY OF NEW YORK, STATE OF NEW YORK. No. 55. Argued October 18,1899. — Decided October 80,1899. A judgment of the highest court of a State, upholding the validity of a tax assessed under a statute of the State, upon money deposited with a trust company in the State by a resident of another State, cannot be reviewed by this court on writ of error upon the ground that the proceedings were repugnant to the Constitution of the United States, when no such ground appears to have been taken by the plaintiff in error, or considered by any court of the State, before the final judgment. SCUDDER v. COMPTROLLER OF NEW YORK. 33 Opinion of the Court. The case is stated in the opinion. Mr. J. CuTbert Palmer for plaintiff in error. Mr. Emmet R. Olcott for defendant in error. Mr. Justice Gray delivered the opinion of the court. This was a proceeding commenced September 27, 1895, in the surrogate’s court, by the comptroller of the city and county of New York, for the taxation of property of John F. Houdayer, deceased, under the statute of New York of 1892, c. 399, entitled “An act in relation to taxable transfers of property,” the material provisions of which were as follows: “ Sec. 1. A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property, in the following cases: “ 1. When the transfer is by will, or by the intestate laws of this State, from any person dying seized or possessed of the property while a resident of the State. “ 2. When the transfer is by will or intestate law, of property within the State, and the decedent was a non-resident of the State at the time of his death.” “Seo. 22. The words ‘estate’ and ‘property,’ as used in this act, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred to those not herein specifically exempted from the provisions of this act, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property or interest therein, whether situated within or without this State, over which this State has any jurisdiction for the purpose of taxation. The word ‘ transfer,’ as used in this act, shall be taken to include the passing of property, or any interest therein, in possession or enjoyment, VOL. CLXXV—3 34 OCTOBER TERM, 1899. Opinion of the Court. present or future, by inheritance, descent, devise, bequest, grant, deed, .bargain, sale or gift, in the manner herein prescribed.” 1 Laws of New York of 1892, pp. 814, 815, 822. The case, as stated by the Court of Appeals, was this: “ On May 21, 1895, John F. Houdayer died intestate at Trenton, New Jersey, where he had resided for a number of years. In 1876 he opened an account with the Farmers’ Loan and Trust Company of the city of New York as trustee under the will of Edward Husson, deceased, in which he made deposits from time to time of moneys belonging to the trust estate, as well as moneys belonging to himself. This continued as an open running account until his death, when the balance on hand was the sum of $73,715, of which $2000 belonged to him as trustee, and the remainder to himself as individual. The appraiser deducted $3500 for the payment of debts and expenses, and included $68,215 in the appraisal, which was affirmed by the surrogate, but reversed by the Supreme Court.” 150 N. Y. 37; 3 N. Y. App. Div. 474. On October 6, 1896, the Court of Appeals reversed the order of the Supreme Court, and affirmed the order of the surrogate. On April 4, 1898, the administrator of Houdayer sued out a writ of error from this court, as against the comptroller, and assigned the following errors: “ First. That the property in question being situated in the State of New Jersey, of which State also the decedent was a resident at the time of his decease, the laws of the State of New York have no application thereto, nor have the courts of New York jurisdiction thereof. “ Second. That by the law, as interpreted by the decision and judgment herein, the legislature of the State of New York attempts to exercise jurisdiction beyond the State, and to affect contracts and rights of a citizen of another State, which are protected by the Constitution and laws of the United States and the judicial power granted to its courts, and violates and interferes with the sovereignty of the State of New Jersey. H Third, That the act of the legislature of the State of New SCUDDER v. COMPTROLLER OF NEW YORK. 35 Opinion of the Court. York, herein referred to, as applied to the facts and circumstances of this case, or the act done under the authority of the State of New York here complained of, is unconstitutional and void as being repugnant to section 10 of article 1 of the Constitution of the United States, in that it impairs the obligation of the contract between a non-resident depositor and the Farmers’ Loan and Trust Company of New York. “ Fourth. That the said act of the legislature, as interpreted by the decision herein, is repugnant to the Fifth Amendment of the Constitution of the United States, which provides that private property shall not be taken for a public use without just compensation. “ Fifth. That the said act of the legislature, as interpreted by the decision herein, is repugnant to section 1 of the Fourteenth Amendment of the Constitution of the United States, by which States are forbidden to deprive citizens of life, liberty or property Without due process of law.” But the difficulty which lies at the threshold of the consideration of this writ of error is that none of the points taken in the assignment of errors appear by the record to have been made in any of the courts of the State. The only statements of the grounds of the administrator’s objections to the proceedings below are these two: 1st. His affidavit filed before the appraiser appointed by the surrogate, averring “ that he objects to such proceedings, and opposes a levy of any such tax upon such amount so on deposit, and claims that said deposit is exempt under the laws and not subject to taxation.” 2d. His appeal to the surrogate from the formal order of assessment, taken “ on the ground that the deposit in the Farmers’ Loan and Trust Company of $71,715, standing at the time of the decedent’s death in his name as trustee, was a chose in action belonging to a non-resi-dent decedent, and not property within this State subject to taxation under the provisions of the act in relation to taxable transfers of property; that the situs of the claim of the decedent against such deposit was at the domicil of the decedent, and not at the domicil of the said depository, and such property being the property of a non-resident decedent, 36 OCTOBER TERM, 1899. Opinion of the Court. and situated out of this State, the same does not fall within the purview of said act.” Both these statements clearly refer to the laws of New York, and not to the Constitution of the United States. And the opinion of the Supreme Court, as well as that of the Court of Appeals, turns upon the question whether the sum due from the Farmers’ Loan and Trust Company of the city of New York to the intestate at the time of his death was “ property within the State,” within the meaning of the statute of 1892. No mention of the Constitution of the United States, or of any provision thereof, by the plaintiff in error, or by the court, is to be found at any stage of the case while it was pending in the courts of the State of New York; and it is impossible, upon this record, to avoid the conclusion that it never occurred to the plaintiff in error to raise a Federal question until after the case had been finally decided against him in the highest court of the State. In order to give this court jurisdiction of a writ of error to review a judgment which the highest court of a State has rendered in favor of the validity of a statute of or an authority exercised under a State, the validity of the statute or authority must have been “ drawn in question ” “ on the ground of their being repugnant to the Constitution, laws or treaties of the United States.” When no such ground has been presented to or considered by the courts of the State, it cannot be said that those courts have disregarded the Constitution of the United States, and this court has no jurisdiction. Rev. Stat. § 709; Murdock v. Memphis, 20 Wall. 590, 633, 634; Levy n. Superior Court of San Francisco, 167 U. S. 175; Miller v. Cornwall Railroad, 168 U. S. 131; Columbia Water Power Co. v. Columbia Railway, 172 U. S. 475, 488, and cases there cited. Writ of error dismissed for want of jurisdiction. ANGLO-CALIFORNIAN BANK u UNITED STATES. 37 Opinion of the Court. ANGLO-CALIFORNIAN BANK v. UNITED STATES. APPTCAT, FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 31. Submitted October 11, 1899. — Decided October 30, 1899. This court has no jurisdiction to review, on appeal, a judgment of a Circuit Court of Appeals, affirming a decree of the Circuit Court below which overrules the decision of a Board of General Appraisers in a port of entry, appointed under the act of June 10, 1890, c. 407, and which sustains as valid, duties levied and collected by the collector of the port into which the goods were imported. The United States was properly made a party defendant in this suit, in this court, in the place of the Secretary of the Treasury. The case is stated in the opinion. Mr. William Pinkney Whyte for appellant. Mr. Assistant Attorney General Hoyt for the United States. Mr. Felix Brannigan was on his brief. Mr. Chief Justice Fuller delivered the opinion of the court. This was a petition filed in the Circuit Court of the United States for the Northern District of California by the Secretary of the Treasury, under the act of June 10, 1890, c. 407, 26 Stat. 131, commonly known as the customs administrative act, for the review of a decision of the Board of General Appraisers in the matter of the classification of certain steel T rails imported at San Francisco by the Bank of California and withdrawn on its authority by the Anglo-Californian Bank, Limited. The duties levied by the collector were paid under protest, and the protest sustained by the Board of General Appraisers. The Circuit Court reversed the decision of the Board, 71 Fed. Rep. 505, and the Anglo-Californian Bank carried the case by appeal to the Circuit Court of Appeals for the Ninth Circuit, which affirmed the decree of the Circuit Court. 48 U. S. App. 27. After an unsuccessful application 38 OCTOBER TERM, 1899. Opinion of the Court. to this court for a writ of certiorari, 166 U. S. 722, the Bank prayed the pending appeal, and the cause, coming on for argument, was submitted on printed briefs. The proceedings were carried on below in the name of the Secretary of the Treasury, but in this court, by agreement, the United States were properly substituted as a party. United; States v. Jahn, 155 U. S. 109; United States v. Hope-well, 5 U. S. App. 137. The judiciary act of March 3, 1891, 26 Stat. 826, c. 517, provides for the review of the final decisions of the Circuit Courts by this court and by the Circuit Courts of Appeals. Section five specifies the classes of cases which may be brought directly to this court, and section six confers appellate jurisdiction in all other cases on the Circuit Courts of Appeals, whose judgments or decrees in certain enumerated classes of cases are made final by the statute. At the same time the section provides that the Circuit Courts of Appeals may certify to this court any questions or propositions of law concerning which instruction is desired for the proper decision of pending cases, and that these may be answered or the whole cause required to be sent up for consideration. And it is also provided that those cases in which the judgments or decrees of the Circuit Courts of Appeals are made final may be required by this court, by certiorari or otherwise, to be certified to it for review and determination. This is not an appeal from the Circuit Court directly to this court, nor does the case fall within either of the classes of cases enumerated in section five, in which such an appeal would lie. No question or proposition of law concerning which the Circuit Court of Appeals desired the advice of this court was certified, and, on the contrary, the decree of the Circuit Court was affirmed by the judgment of the Circuit Court of Appeals with costs. The case is not before us on certiorari, but on appeal, and an appeal does not lie in those cases in which the judgments or decrees of the Circuit Court of Appeals are made final by the statute. Among those cases are cases “ arising under the ANGLO-CALIFORNIAN BANK v. UNITED STATES. 39 Opinion of the Court. revenue laws,” and as this is such a case, the appeal cannot be maintained. It is true that under the act of June 10, 1890, an appeal would lie directly from the Circuit Courts to this court if the Circuit Court should be of opinion that the question involved was of such importance as to require a review of its decision by this court, and that in the order allowing this appeal the Circuit Court of Appeals stated “ that the question involved is of such importance as to require a review of said decision and decree by the Supreme Court of the United States; ” but this is not an appeal from the Circuit Court, and, moreover, the judiciary act of March 3, 1891, prescribes a different rule as to the prosecution of appeals. In United States v. American Bell Telephone Company, 159 U. S. 548, it was held that this court had jurisdiction by appeal over a decree of a Circuit Court of Appeals in a suit brought by the United States in the Circuit Court to cancel a patent for an invention. The argument was pressed that the appeal could not be maintained because the decrees of the Circuit Courts of Appeals were made final by the act in cases “ arising under the patent laws,” and that that was such a case. In view of the fact, however, that the United States instituted the suit as a sovereign in respect of alleged miscarriage in the exercise of one of its functions as such, it was thought that considerations of public policy forbade imputing to Congress the intention to include the case in that category. We observed that actions at law for infringement, and suits in equity for infringement, for interference, and to obtain patents, being brought for the vindication of rights created by the patent laws, were clearly cases arising under those laws, and came strictly within the avowed purpose of the act of March 3, 1891, to relieve this court of that burden of litigation which operated to impede the disposition of cases of peculiar gravity and general importance. But there was nothing in the objects sought to be attained and the mischiefs sought to be remedied by the act which furnished foundation for the belief that Congress intended to place a limitation on our appel- 40 OCTOBER TERM, 1899. Statement of the Case. late jurisdiction in a suit in which the United States were plaintiffs and appellants, and which was brought in effectuation of the superintending authority of the Government over the public interests. We do not think the present appeal comes within the ruling in that case. Appeal, dismissed. DE LA VERGNE REFRIGERATING MACHINE COMPANY v. GERMAN SAVINGS INSTITUTION. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 45. Argued April 7, 11, 1899. — Decided November 30, 1899. Under the laws of the State of New York, providing for the organization of manufacturing corporations, such corporations are not authorized to purchase the stock of a rival corporation, for the purpose of suppressing competition and obtaining the management of such rival. Unless express permission be given to do so, it is not within the general powers of a corporation to purchase stock of other corporations for the purpose of controlling their management. Where an action is brought upon a contract by a corporation to purchase such stock for such purpose, it is a good defence that the corporation was prohibited by statute from entering into it; even though the corporation may be compelled, in an action on quantum meruit, to respond for the benefit actually received. This was a consolidation of eight actions brought by the German Savings Institution and seven other plaintiffs, in the Circuit Court of the city of St. Louis, against the De la Vergne Refrigerating Company and John C. De la Vergne, its president and principal stockholder, personally, for a failure to deliver to plaintiffs certain stock in the Refrigerating Company. Certain personal property was seized upon attachment issued, a forthcoming bond given therefor, and the several actions were afterwards removed to the Circuit Court for the Eastern District of Missouri upon the joint petition of the defendants. In that court the several actions were consolidated and sub- DE LA VERGNE CO. v. GERMAN SAVINGS INST. 41 Argument for Defendants in Error. mitted upon an agreed statement of facts upon which judgment was entered for the defendants. Pending the proceedings in the state court, and on May 12, 1896, John C. De la Vergne died, and on November 5, 1896, his death was suggested to the court, when William C. Richardson, public administrator of the city of St. Louis, entered his appearance, and with his consent an order was entered reviving each of such actions against him. From the judgment so entered in the Circuit Court, a writ of error was taken from the Circuit Court of Appeals, the judgment of the court below reversed, and the cause remanded with directions to grant a new trial. 36 U. S. App. 184. Amended answers were filed in the lower court, much testimony taken, the cause submitted to the court without a jury, and a judgment entered in favor of the plaintiffs for $126,849.96. From this judgment a writ of error was prosecuted by the Refrigerating Company, one of the defendants. The judgment was affirmed by the Court of Appeals by an equal division. 49 IT. S. App. 777. Whereupon the Refrigerating Company applied for and was allowed a writ of certiorari from this court. Mr. Frederick TV Lehmann and Mr. Charles H. Aldrich for plaintiff in error, petitioner. Mr. Charles Nagel was on their brief. Mr. J. M. Wilson and Mr. Leo Rassieur for defendants in error. Mr. Eleneious Smith was on their brief. I. The contract involved in this cause was not ultra vires the De la Vergne Company. (a) The subject-matter of the contract, the thing bargained for and purchased, was not stock of the Consolidated Com-pany, but its tangible assets, its outstanding accounts and its good will, subject to the payments of its debts, and the custody thereof until such payment, by the Illinois assignee. German Savings Institution v. De la Vergne Ref rigerating Machine Co., 36 IT. S. App. 184; & C, 70 Fed. Rep. 146. 42 OCTOBER TERM, 1899. Argument for Defendants in Error. (6) But if stock of the Consolidated Company was the subject-matter of the purchase by the De la Vergne Company, the contract was not ultra vires, because the laws of the State of New York do not prohibit such purchase, as contended by the De la Vergne Company, but on the contrary permit it. Laws N. Y. 1853, c. 331, § 2. Act of June 4. Rev. Stat. N. Y. 1889, Vol. 3, p. 1961; Laws of 1866, c. 838, §§ 3 and 4; Rev. Stat. N. Y. 1889, Vol. 3, p. 1967. II. The contract was not ultra vires as requiring or obligating the De la Vergne Company to increase its capital stock. The contract itself recites that the De la Vergne Company was then considering fhe plan of increasing its stock, and by the contract it was left optional with said company either to make such increase and to pay plaintiffs with such increased issue, or to pay in money. But even if the contract had required such increase and the De la Vergne Company had no power to contract therefor and for the payment in such form, it will nevertheless be compelled to make compensation in some other form; in money. Hitchcock v. Gal/ceston, 96 U. S. 341; Fort Worth City Co. n. Smith Bridge Co., 151 U. S. 294; State Board of Agriculture v. Citizens' Street Railway, 47 Indiana, 407; Morawetz on Corporations, § 86; Missouri Pacific Railway n. Sidell, 35 U. S. App. 152; Bensiek v. Thomas, 27 IT. S. App. 765. III. The contract was not ultra vires the Consolidated Company because it was not a mere combination or coalition for the purpose of creating a monopoly or trust; but was a legitimate business undertaking. Morawetz, § 212; Herriman v. Menzies, 115 California, 16; Allegheny River Oil Creek Co. v. Pennsylvania Trans. Co., 83 Penn. St. 160; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Gasguet v. Crescent City Brg. Co., 49 Fed. Rep. 496 ; Camden and Atlantic City Railroad v. May’s Landing and Egg Harbor Railroad, 48 N. J. Law, 567. IV. The De la Vergne Company’s execution of the contract is fully established. if) The answers denying its executions are not verified, and thereby the execution stands admitted. Rev. Stat. Mo. 1889, sec. 2186. DE LA VERGNE CO. v. GERMAN SAVINGS INST. 43 Argument for Defendants in Error. (5) And such admission, by failure to verify, is not merely with reference to the formal or clerical execution, but includes the admission of substantial execution. Rothschild v. Frensdorf, 21 Missouri App. 318; Smith Purifier Co. n. Rembaugh, 21 Missouri App. 390; Bech <& Pauli Lithographing Co. v. Obert, 54 Missouri App. 240, 246. (c) The testimony furnished by defendants themselves establishes a ratification of the contract by the De la Vergne Company, even if the president had no original authority to execute it. The corporation paid the services and expenses of the experts employed to investigate the affairs of the- Consolidated Company; the directors were acquainted with the execution of the contract and the disbursement of these moneys and made no objection thereto; the by-law of the defendant corporation gives the president unlimited powers to enter into contracts on its behalf; within five days after the contract was executed the defendant company employed the Consolidated Company’s former salesman, took charge of its former New York branch office and entered upon the business of selling machines built upon the Consolidated type or pattern. (^) The agreed statement of facts admits the execution of the contract by both De la Vergne and the De la Vergne Company. V. Where a contract admits of two constructions, one of which results in its validity and the other in its illegality, the former will be adopted. Shore v. 9 Clark & F. 355 ; Noonan v. Bradley, 9 Wall. 394, 407; Ormes v. Dauchy, 82 N. Y. 443; Curtis v. Gokey, 68 N. Y. 300; Sheffield v. Balmer, 52 Missouri, 474; Crittenden v. French, 21 Illinois, 598; 2 Parsons on Contracts, (8th ed.) 168; Jones on Construction of Contracts, §§ 223, 224. VI. Jungenfeld’s executors had power to assign the stock of that estate without an order of court. At common law the legal title to the personalty of the deceased passes to his executor or administrator, who has absolute control and dominion over the same, with power of alienation; and the conveyance of the executor or administrator passes good title to the vendee or assignee. Williams on Executors, (ed. 1859) 44 OCTOBER TERM, 1899. Argument for Defendants in Error. p. 269; Woerner on American Law of Administration, sec. 331; 3 Wait’s Act. & Def., 244, and cases cited ; Downing v. Garner, 1 Missouri, 751; (reprint 537); Makepeace v. Moore, 10 Illinois, (5 Gilm.) 474; McConnell v. Hodson, 1 Illinois, (2 Gilm.) 640 ; Walker n. Craig, 18 Illinois, 116; Thornton v. Mehring, 117 Illinois, 55. In those States where administration acts have been adopted the rule is that an executor or administrator selling personalty without the sanction of the court possessing probate jurisdiction, makes himself answerable for the full value of the property; but his sale is not void — on the contrary his bona fide vendee obtains good title. Administration acts are in aid, not in exclusion, of the common law powers of the legal representative. Schouler’s Executors & Administrators, (2d ed.) § 346; Smith’s Probate Law, (Mass.) Ill; Harth v. Heddlestone, 2 Bay’s Rep. (S. C.) 321; Mead n. Byington, 10 Vermont, 116; Sherman v. Willett, 42 N. Y. 146; Dickson v. Crawley, 112 N. C. 629 ; Minuse v. Cox, 5 Johns. Ch. 441; Wynns v. Alexander, 2 Dev. and B. Eq. Rep. 58. An exception to this rule seems to exist in Missouri with respect to bonds and promissory notes. The cases of Stagg v. Green, 47 Missouri, 500; Stagg v. Linnenfelser, 50 Missouri, 336 ; Chandler n. Stevenson, 68 Missouri, 450 ; Weil v. Jones, 70 Missouri, 560, merely go to this effect and no further. State to use of Wolff v. Berning, 74 Missouri, 87, merely holds that an administrator, de bonis non, may reclaim notes pledged by his predecessor, for his own purposes, with one having notice of that fact and of their true ownership. These were the cases relied on in the lower court by defendants. The Missouri administration act provides that executors or administrators may make compromises with and execute releases to debtors of the estate, upon orders from the probate court. Yet it has been held that a release without such direction or sanction will be good, the executor being personally liable for any loss caused by his lack of due care or prudence. Mosman v. Bender, 80 Missouri, 579; Jacobs v. Jacobs, 99 Missouri, 427. DE LA VERGNE CO. v. GERMAN SAVINGS INST. 45 Argument for Defendants in Error. And to this same effect, this court in Alaclay n. Equit. Life Ass. Soc., 152 U. S. 499. VII. The will of Jungenfeld in express terms authorized his executors “ to sell, convey and transfer any part or portion of my estate if they deem it for the advantage of those interested as legatees.” Their assignment to defendants was therefore effectual, both under the will and by reason of their general legal power. VIII. Executors may convey title to shares in a corporation organized under the laws of a foreign jurisdiction. “ The assignee of stock assigned by a foreign executor may compel the transfer thereof in the courts of the State where the corporation does business.” Middlebrook v. Merchants Bank of New York, 3 Abb. App. Dec. 295 ; Same Case on Appeal, 41 Barb. 481; Luce n. Manchester & Lawrence Railroad, 63 N. H. 588; Brown v. San Francisco Gas Light Co., 58 California, 426; Trecothick v. Austin, 4 Mason’s C. C. Rep. 16. IX. The trustees of Jungenfeld’s minor son also had power to assign and transfer the minor’s stock to defendants. The will gave them general power to “manage, control and invest,” and it was manifestly the intention of the testator to confer upon them the power of sale. Such power need not be granted by express words, but may be inferred where the intention is apparent. 18 Am. & Eng. Enc., “ Powers,” 901 and cases collected ; Danish n. Disbrow, 51 Texas, 235 ; Orr v. O'Brien, 55 Texas, 149. X. There is no presumption of law that one acting in a trust capacity has the right to sell. Persons dealing with a trustee are put on inquiry and are bound to ascertain for themselves the extent of his power, and what title, if any, they will obtain by the trustee’s conveyance. German Savings Institution v. De la Vergne Machine Co., 36 IT. S. App. 184; Duncan v. Jaudon, 15 Wall. 165; Mason v. Wait, 5 Illinois, 127, 135; Brewer v. Christian, 9 Illinois App. 57; Harmon v. Smith, 38 Fed. Rep. 482; Shaw v. Spencer, 100 Mass. 382; Wood’s Appeal, 92 Penn. St. 379. XI. An agreement to transfer or assign stock is sufficiently performed by a delivery or an offer of certificates therefor 46 OCTOBER TERM, 1899. Argument for Defendants in Error. assigned in blank ; Keller v. Eureka Brick Machine Mfg. Co., 43 Missouri App. 84. XII. The suggestion made below by defendants that because the Consolidated Company had assigned all of its property for the benefit of its creditors, and that therefore neither it nor its stockholders possessed any right which could be conveyed by the agreement of April 16, 1891, is without merit. Under the Illinois assignment laws a right of reconveyance from the assignee existed on an adjustment with a majority in number and amount of the creditors; and it was this right or equity which defendants purchased and the agreement expressly so recites. In addition thereto defendants also secured the good will and trade of the Consolidated Company and the express covenant of its stockholders, plaintiffs herein. Defendants got all for which they bargained. XIII. The special finding of facts made by the court below is conclusive on appeal as to the matters found. Stanley v. Albany County, 121 U. S. 535; Allen v. St. Louis Bk., 120 U. S. 20; Republican River Bridge Co. v. Kansas Pacific Railroad, 92 U. S. 315. Where a cause is tried upon waiver of jury and the court makes a special finding of the facts, the only question upon the writ of error is the sufficiency of the facts found to support the judgment. The appellate court will not inquire whether the evidence was sufficient to support the findings. Nor is error in the findings of fact subject to revision, if there was any evidence upon which the findings could be made. Hathaway v. Bank of Cambridge, 134 U. S. 494. And special findings of facts by the court need only state the ultimate facts, not the evidence. Union Silver Mining Co. v. Taylor, 100 U. S. 37. And a refusal of the trial court to find incidental facts, amounting only to evidence bearing upon the ultimate facts to be found, is not a proper subject of review. Hathaway v. Bank of Cambridge, 134 U. S. 494. XIV. The refusal of the trial court where a jury has been waived to give abstract declarations of law, is not error. DE LA VERGNE CO. v. GERMAN SAVINGS INST. 47 Argument for Defendants in Error. Mercantile Mutual Insurance Company v. Folsom, 18 Wall. 237. XV. The contract in question, providing as it did for a distribution of $100,000 to the various plaintiffs, in the proportion in which they held stock in the Consolidated Company, amounted to a promise to each; and each was therefore warranted in bringing a separate action for the proportionate amount due him. A general action would have been improper. Bliss on Code Pleadings, § 3; Taylor v. Coon, 48 N. W. Rep. 123; Finney v. Brant, 19 Missouri, 42; Cross v. Williams, 72 Missouri, 577. XVI. Neither party to a contract can rescind without placing the other in statu quo; nor when sued for the purchase price successfully defend while retaining its benefits. Ger. Savings Institution v. Be la Vergne Ref. Mach. Co., 36 U. S. App. 184, and cases there cited; Story on Sales, § 427; Bigelow on Estoppel, (5th ed.) 552; 3 Wait’s Act. & Def., 483; Mansfield v. Trigg, 113 Mass. 350; Miller n. Tiffany, 1 Wall. 298; Andrews n. Hensler, 6. Wall. 254; Reeves v. Corning, 51 Fed. Rep. 774; Union Nat. Bank v. Matthews, 98 U. S. 621; Washburn Mill Co. v. Bartlett, 54 N. W. Rep. 544. XVII. De la Vergne having entered his general appearance in these causes in his lifetime, upon his death the suits were lawfully revived against the administrator of his estate in Missouri. Sects. 955 and 956, Rev. Stat. IT. S.; sec. 2196,. Rev. Stat. Missouri, 1889, ch. 33, art. 8; sec. 1995, Rev. Stat. Missouri, 1889, ch. 33, art. 1; Gamble v. Daugherty, 71 Missouri, 599. If error was committed in entering judgment de bonis testa-toris against De la Vergne’s administrator, he having failed to appeal or sue out a writ of error, plaintiff in error, De la Vergne Company, cannot avail itself of such error against its co-defendant, nor can such judgment preclude any rights which the defendant company may have against De la Vergne’s estate. They are not adversary parties in the pending suits. McMahan v. Geiger, Missouri, 145; State Bank of St. Louis v. Bartie, 114 Missouri, 276; Price v. Lederer, 33 Missouri App. 426 ; Vol. 12, Aw, and English Enc., p. 83; Century 48 OCTOBER TERM, 1899. Opinion of the Court. Digest, § 3584, § 3589, Infants; § 3590, Principals and Sureties. Mr. Justice Brown, after stating the case as above, delivered the opinion of the court. The principal question in this case is whether, under the laws of New York providing for the organization of manufacturing corporations, such corporations are authorized to purchase the stock of a rival corporation for the purpose of suppressing competition and obtaining the management of such corporation. The facts of the case are substantially as follows: The Consolidated Ice Machine Company (hereinafter referred to as the Consolidated Company) was a corporation organized under the laws of Illinois, and was engaged in the business of manufacturing and selling refrigerating and ice-making machines. The entire amount of issued stock of such corporation was $100,000, held in various proportions by the plaintiffs in this consolidated cause. Having become insolvent, the company, on October 14, 1890, made an assignment under the general laws of Illinois, for the benefit of creditors, to one Jenkins, who, at the date of the contract sued upon, was engaged in winding up its business. The assignment on its face purported to convey to Jenkins and his successors in trust the entire real and personal “property and effects of every kind and description” belonging to the corporation, “ or in which it has any right or interest,” the same being fully and particularly enumerated and described in an inventory, which, however, does not appear in the record. Its assets consisted mainly of a plant for the manufacture of refrigerating and ice-making machines in Chicago; of patent rights, outstanding accounts, and the good will of its business, which appears to have been an extensive one. It is asserted by the plaintiffs, who are stockholders in this company, that the assets exceeded in value the liabilities of the company, and that the company was not in reality insolvent, but had assumed contracts to such an extent that, with its limited capital, it was unable to carry them out, de LA VERGNE CO. v. GERMAN SAVINGS INST. 49 Opinion of the Court. However this may be, subsequently to the assignment, and on April 16,1891, the company itself, by its president as party of the first part, and its stockholders as parties of the second part, entered into an agreement with the De la Vergne Refrigerating Machine Company, a corporation organized under the laws of New York, (hereinafter called the Refrigerating Company,) as party of the third part, and John C. De la Vergne, of the State of New York, president of that company, as party of the fourth part. This agreement is the basis of the action. After reciting that the Refrigerating Company was willing to acquire such right as the Consolidated Company and its stockholders could assign in and to the assets of such company; that under the laws of Illinois the Consolidated Company was not entitled to the possession of its assets in the hands of the assignee until its obligations had been discharged; that the Refrigerating Company was incorporated with a stock of $350,000 when its assets were worth $1,400,000; and that its stockholders were considering a plan of increasing the stock to $2,000,000, of which $1,000,000 was to be turned over to the Consolidated Company under the terms of the agreement: Therefore, in view of these facts, the Consolidated Company and its stockholders covenanted with the Refrigerating Company and its president, De la Vergne, to sell and convey unto the Refrigerating Company all their right, title and interest in and to the assets of the party of the first part, subject to the payment of its obligations, and subject to the custody thereof in the legal custooian, R. E. Jenkins, assignee as aforesaid. The second clause contained a covenant to issue to the stockholders of the Consolidated Company fully paid up stock in the Refrigerating Company to the amount of $100,000 in certain specified proportions to each stockholder. By the fourth clause, the stockholders agreed within ten days from the date of the agreement to assign to De la Vergne, for the benefit of the Refrigerating Company, all stock of the insolvent company which had been issued, and which they guaranteed had been paid in full; and within sixty days thereafter the Refrigerating Company and its president vol. clxxv—4 50 OCTOBER TERM, 1899. Opinion of the Court. agreed to issue and deliver to the stockholders of the Consolidated Company stock in the Refrigerating Company to the amount of $100,000. By the fifth clause, the stockholders in the Consolidated Company covenanted to accept in lieu of the stock of the Refrigerating Company, $100,000 in cash, at the option of De la Vergne, the president of the company. By the seventh clause, the stockholders of the Consolidated Company agreed that for a period of ten years they would not enter into or become engaged in the selling or making of refrigerators or ice machines, directly or indirectly, within the United States, excepting the State of Montana. Within the ten days provided by the agreement, certificates representing one thousand shares of the stock of the Consolidated Company, with written assignments executed by the parties who held the certificates, were delivered to De la Vergne, although ninety-five of these shares were held by P. J. Lingenfelder and Leo Rassieur as executors, and ninety were held by them as trustees under the will of one Jungen-feld, deceased. These shares were assigned by the parties without an order authorizing them to do so from the probate court of St. Louis, in the State of Missouri, in which the estate of Jungenfeld was in the process of administration. Two days after the receipt of these certificates De la Vergne’s attorney wrote to Mr. Rassieur, calling his attention to certain technical defects, which were immediately remedied by suitable instruments of further assurance. No objection was then made that the assignments of the executors and trustees were insufficient for want of an order of the probate court authorizing the same. In the following July demands were several times made by Mr. Rassieur for himself and his associates for the $100,000 in stock or money stipulated by the contract, but no response was received until September, when Mr. Fitch, acting for the Refrigerating Company, announced for the first time that the defendants declined to carry out their part of the contract. The reasons for the refusal do not seem to have been substantial ones. The letter contained an announcement that Mr. de LA VERGNE CO. v. GERMAN SAVINGS INST. 51 Opinion of the Court. De la Vergne’s counsel was ready to return the papers sent to him to whomsoever was legally entitled to their custody. There was no reconveyance to the Consolidated Company of whatever was covered by the contract, the covenant of its stockholders to refrain from transacting business for ten years was never released, and none of the certificates and assignments of stock were ever delivered back. It appeared, however, that in the meantime the Refrigerating Company had secured the former New York office of the Consolidated Company ; had employed its agents in making contracts with former customers of that company, which contracts were taken in the name of such agent. He was, however, furnished with the means by which they were carried out, and assignments were taken from him, which practically secured the good will of the company, although the Chicago assets were allowed to go to sale by the assignee. At this sale Mr. De la Vergne was present and offered for the tangible assets the sum of $25,000. In their answer as amended, defendants set up as justification for a refusal to perform the contract that no assets of the Consolidated Company ever came into the possession of the defendants, since all, including the good will, had been transferred to Jenkins, the assignee, for the benefit of its creditors, and remained in his possession and control until they were disposed of under the direction of the probate court for the benefit of creditors, and that they were insufficient to discharge the liabilities; that the contract sued upon purporting to be executed on behalf of the Refrigerating Company by De la Vergne, its president, was executed without authority; that no benefit of any kind ever accrued to the company under the contract; that the company never received any of the consideration moving to it under the contract; that it never received any of the assets of the Consolidated Company, nor any of the stock; that it never in any manner ratified or approved the contract, but on the contrary rejected the same, and that the plaintiffs well knew at the time of making the contract that De la Vergne had no power or authority to bind the Refrigerating Company; that the defendants notified the plaintiffs that they would not be bound by the contract, and 52 OCTOBER TERM, 1899. Opinion of the Court. that such rejection of the contract was acquiesced in by the plaintiffs, and that relying upon such acquiescence the defendants abandoned all interest in the Consolidated Company; that the contract was in reality for the stock of the Consolidated Company, and that the Refrigerating Company was not authorized by its charter, by the laws of New York or of Illinois, to purchase such stock, and that the agreement was ultra vires', and further, that the Refrigerating Company had no authority to stipulate for an increase in its capital stock, as was attempted under the contract, and that the contract was against public policy and wholly void. 1. The main defence pressed upon our consideration is one which does not seem to have been called to the attention of the Circuit Court, and one upon which the Judges of the Circuit Court of Appeals were equally divided in opinion. It is that the president of the Refrigerating Company had no authority to sign the contract in question, and that the agreement itself was ultra vires the corporation. As the general assignment to Jenkins, executed October 14, 1890, was most sweeping in its terms, and included all the real and personal property and effects of every kind and description belonging to the corporation, or in which it had any right or interest, it was doubtless sufficient to pass the good will of the business, which was an incident either to the premises, to the name of the corporation or to the tangible property with which the business was carried on. Churton v. Douglas, 1 Johns. (Eng.) Chancery, 174, 188; Menendez v. Holt, 128 IT. S. 514; Metropolitan Bank n. St. Louis Dispatch Co., 149 IT. S. 436; Willett v. Blanford, 1 Hare, 253; Wed derburn v. Wedderburn, 22 Beavan, 84 ; Bradbury n. Dickens, 27 Beavan, 53; Williams v. Wilson, 4 Sand. Ch. 379; Shep pard v. Boggs, 9 Nebraska, 257; Wallingford v. Burr, 17 Nebraska, 137. This was evidently the view taken by the assignee, since he subsequently advertised the good will of the business for sale, and sold the same under an order of the court to Clarence A. Knight and Otto C. Butz, who afterward sold the same, including certain of the assets, to John Featherstone’s Sons. DE LA VERGNE CO. v. GERMAN SAVINGS INST. 53 Opinion of the Court. It is difficult, even if the contract were legally executed, to see what assets of value belonging to the Consolidated Company passed to the Refrigerating Company under it, except perhaps the possibility that the assets would prove more than sufficient to pay the debts; or, that a settlement might be effected with a majority in number and amount of the creditors, when, under the laws of Illinois, the assignor would be entitled to a reconveyance and redelivery of the assigned assets. In such case the good will would doubtless return with the other assets to the assignor, i.e. the corporation, but not to the stockholders, and the right to sue for a breach of the contract would belong to the corporation, or its assignee. There was also a covenant that the Consolidated Company would not engage in a similar business within ten years from the date of the contract. The Refrigerating Company, however, did not avail itself of this opportunity to compromise with the creditors of the Consolidated Company, but allowed the assignee to dispose of the assets, which, on a forced sale, lacked $150,000 of being sufficient to pay the debts of the Consolidated Company. In addition to this, however, there was no corporate action taken authorizing any such conveyance by the corporation, and such conveyance would not, under the laws of Illinois which conform in this particular to the general law, be within the power of the stockholders, even though they all signed it, without formal action at a meeting held for that purpose. Sellers v. Greer, 172 Illinois, 549 ; Hopkins v. Roseclare Lead Co., 72 Illinois, 373; Humphreys v. McKissock, 140 U. S. 304, 312; Allemong v. Simmons, 124 Indiana, 199; Smithy. Hurd, 12 Mete. (Mass.) 371, 385 ; England n. Dearborn, 141 Mass. 590; Cook on Stockholders, § 709. It is true that the president of the Consolidated Company assumed to sign the contract as president, and to bind the company, but it is scarcely necessary to say that the president of a corporation has no power as such to make a general conveyance of the assets of the corporation without at least the assent of the board of directors. England v. Dearborn, 141 Mass. 590; Titus v. Cairo de Fulton Railroad, 37 N. J. Law, 54 OCTOBER TERM, 1899. Opinion of the Court. 98, 102 ; McCullough v. Moss, 5 Denio, 567; Fulton Bank v. New York dec. Canal Co., 4 Paige, 127, 134; Walworth County Bank v. Farmers' Loan db Trust Co., 14 Wisconsin, 325; Stokes v. N. J. Pottery Co., 46 N. J. Law, 237; Morawetz on Corp. § 537; 4 Thomp. on Corp. § 4622. The stockholders not only assumed to convey the property of the corporation without title thereto as well as without the requisite authority so to do, but, acting as individuals, they sold “ all their right, title and interest in and to the assets”of the corporation, “ subject to the payment of its obligations, and subject to the custody thereof in the legal custodian, R. E. Jenkins, assignee as aforesaid.” As this transfer was no broader in its terms than those employed in the assignment by the company to Jenkins, and as the stockholders in any event would not have the power to transfer the assets of the corporation, this sale could operate only upon their stock; and that this was the intention is evident from the fourth clause of the contract, by which the stockholders agreed, within ten days from the date of the contract, to assign to De la Vergne all the stock of the Consolidated Company which had been issued, and which they guaranteed had been paid in full, and also by the fact that the certificates for such stock were all assigned by the holders and forwarded to De la Vergne. But again, it is difficult to see what the Refrigerating Company gained by this transfer of stock. Doubtless it gave them the control of the Consolidated Company, but as that company had assigned everything to Jenkins, including the good will, there was nothing left of value in the ownership of the stock. Apparently it could only operate upon the possibility that, by some favorable turn of fortune, the assets might prove more than sufficient to pay the debts, and thus the stock would become of some real value. However this may be, it is quite evident that one of the main objects of the transfer was to get possession of the stock and the right to use the name of the Consolidated Company, assuming that this did not pass to the assignee as part of the good will of the business. But as the powers of corporations, created by legislative act, are limited to such as the act expressly confers, and the DE LA VERGNE CO. v. GERMAN SAVINGS INST. 55 Opinion of the Court. enumeration of these implies the exclusion of all others, it follows that, unless express permission be given to do so, it is not within the general powers of a corporation to purchase the stock of other corporations for the purpose of controlling their management. First National Bank v. National Exchange Bank, 92 IT. S. 122,128; Sumner v. Marcy, 3 Wood & Minot, 105; Morawetz on Corp. sec. 431; 1 Thompson on Corp. § 1102; People v. Chicago Gas Trust Co., 130 Illinois, 268; Milbank n. New York, Lake Erie & Western Bailroad, 64 How. Pr. 20; Mechanics'1 &c. Bank n. Meriden Co., 24 Connecticut, 159. Not only is this true as a general rule, but by the law of the State of New York, under which this corporation was organized, i.e. “ An act to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes,” passed February 17, 1848, it was declared in section eight that “ it shall not be lawful for such company to use any of their funds for the purchase of any stock in any other corporation.” This language is clear and explicit, and evidently covers purchases of stock in other corporations, whether engaged in the same or different business. In this connection, however, our attention is called to an act passed by the legislature of New York, June 7, 1853, (chapter 333,) amendatory of the act of 1848, the second section of which enacts that “ the trustees of such company may purchase mines, manufactories and other property necessary for their business, and issue stock to the amount of the value thereof in payment therefore.” The position of the plaintiffs in this connection is that, under the authority to purchase “other property necessary for their business,” it was competent for manufacturing corporations to purchase the stock of other similar corporations. But we do not so read the act. Its evident object was to permit manufacturing corporations to purchase mines from which they could extract their own ore, or manufactories of raw material, such as pig iron or lumber, which could furnish to them material to be worked up into their own products; and in case such purchases involved a larger outlay than their present resources would 56 OCTOBER TERM, 1899. Opinion of the Court. justify, to issue new stock “ to the amount of the value thereof in payment therefor.” But there is nothing to indicate that the legislature intended to authorize them to purchase the stock of competing corporations, or corporations engaged in other business. It is only property necessary for their own current business they were authorized to purchase. Another act amending the general corporation act of 1848, passed April 28,1866, (chapter 838,) was intended for a similar purpose. By section three it was enacted that “ It shall be lawful for any manufacturing company heretofore or hereafter organized under the provisions of this act or the act hereby amended, to hold stock in the capital of any corporation engaged in the business of mining, manufacturing or transporting such materials as are required in the prosecution of the business of such company, so long as they shall furnish or transport such materials for the use of such company, and for two years thereafter and no longer; and the trustees of such company shall have the same power with respect to the purchase of such stock and issuing stock therefor as are now given by law with respect to the purchase of mines, manufactories and other property necessary to the business of manufacturing companies. But the capital stock of such company shall not be increased without the consent of the owners of two thirds of the stock, to be obtained as provided by sections twenty-one and twenty-two of the act hereby amended.” The object of this act was evidently much the same as that of the prior act of 1853, that is, to enable manufacturing corporations to produce their own ore and manufacture their own raw materials. To meet the exigencies of this statute it is necessary that the company, whose stock is purchased, should at the time of the purchase be engaged in the business of mining, manufacturing or transporting such materials as are required in the prosecution of the business of the purchasing company; and the right is limited to such time as they shall furnish or transport such materials for the use of such company, and for two years thereafter. It clearly has no application to a case where a manufacturing company pur- DE LA VERGNE CO. v. GERMAN SAVINGS INST. 57 Opinion of the Court. chases the stock of an insolvent rival concern which has ceased to do business, and whose stock is bought for the evident purpose of preventing a reorganization, and of obtaining its patronage. In the Revised Statutes of New York of 1889, c. 18, vol. 3, p. 1959, there is also an act, to which our attention is called by a supplemental brief, permitting manufacturing companies to increase or diminish their capital stock to any amount which may be sufficient and proper for the purposes of the corporation, and also to extend their business to any other manufacturing business subject to the provisions of the act. That neither of these acts were intended to give authority to corporations to purchase stock of other corporations engaged in the same business is evident from a subsequent act approved June 7, 1890, to take effect May 1,1891, the fortieth section of which provides that “. . . no corporation shall use any of its funds in the purchase of any stock of its own or any other corporation, unless the same shall have been bona fide pledged, hypothecated or transferred to it, by way of security for, or in satisfaction or part satisfaction of, a debt previously contracted in the course of its business, or shall be purchased by it at sales upon judgments, orders or decrees which shall be obtained for such debts or in the prosecution thereof. Any domestic corporation transacting business in this State, and also in other States or foreign countries, may invest its funds m the stocks, bonds or securities of other corporations owning lands in this State or other States, if dividends have been paid on such stocks continuously for three years immediately before such loans are made, or if the interest on such bonds or securities is not in default, and such stock, bonds and securities shall be continuously of a market value twenty per cent greater than the amount loaned or continued thereon.” Had the former acts given the unlimited authority to purchase insisted upon by the plaintiffs, this act would have been entirely unnecessary, and instead of enlarging the power previously possessed, would have operated as a restriction upon it. That this act of 1890 does not assist the plaintiffs is evident not only from the fact that the act did not take effect 58 OCTOBER TERM, 1899. Opinion of the Court. until after the contract was made, but from the further fact that it merely authorizes corporations to invest their funds in the stocks, bonds or securities of other corporations if dividends have been paid for three years before the loans are made; or if the interest on their securities is not in default, and such securities are worth twenty per cent greater than the amount loaned thereon. This act evidently refers to loans and not to purchases, since the section expressly provides that no corporation shall use its funds in the purchase of any stock, either of its own or any other corporation, unless by way of security for antecedent debts. The truth is, that the legislature of New York, instead of repealing the prohibitory clause in the original act of 1848, concerning the purchase of stock in other corporations, has modified it but slightly, by slow degrees, and in special cases, to enable a manufacturing corporation to control more perfectly its own legitimate business operations, and has thereby manifested the more clearly its intention to preserve the original inhibition. Our conclusion upon this branch of the case is that, as the main, if not the sole, object of the purchase from the plaintiffs was to acquire their stock in the Consolidated Company, such purchase was ultra vires the Refrigerating Company. 2. Is this defence available to the Refrigerating Company ? Whatever doubts might have been once entertained as to the power of corporations to set up the defence of ultra vires to defeat a recovery upon an executed contract, the rule is now well settled, at least in this court, that where the action is brought upon the illegal contract, it is a good defence that the corporation was prohibited by statute from entering into such contract, although in an action upon a quantum meruit it may be compelled to respond for the benefit actually received. The earliest case in which this doctrine is distinctly laid down is that of Pearce v. Madison & Indianapolis Bailroad, 21 How. 441, in which it appears that two railroad companies, which had been consolidated, gave their promissory notes m payment for a steamboat to run in connection with the railroads. It was held that, as there was no authority in the DE LA VERGNE CO. v. GERMAN SAVINGS INST. 59 Opinion of the Court. railroad companies to engage in running steamboats, there could be no recovery on the notes, and that as the plaintiff was not the owner of the boat and had sued upon the notes as an indorsee, there could be no recovery. The same doctrine has been applied to leases ultra vires a corporation, and it has been uniformly held that there could be no recovery upon the lease itself, though there might be in an action for use and occupation of the property. Pittsburgh, Cincinnati dec. Railway v. Keokuk de Hamilton Bridge Co., 131 CT. S. 371, 384; Central Transportation Co. v. Pullman! s Palace Car Co., 139 U. S. 24, 48; S. C., 171 IT. S. 138; McCormick n. Market Bank, 165 IT. S. 538, 550; Thomas v. Railroad Co., 101 U. S. 71; California Bank v. Kennedy, 167 U. S. 362; Marble Co. x. Harvey, 92 Tennessee, 116; Onion Pacific Railway n. Chicago, Rock Island and Pacific Railway Co., 163 IT. S. 564. The doctrine that no recovery can be had upon the contract is based upon the theory that it is for the interest of the public that corporations should not transcend the limits of their charters; that the property of stockholders should not be put to the risk of engagements which they did not undertake ; that if the contract be prohibited by statute every one dealing with the corporation is bound to take notice of the restrictions in its charter, whether such charter be a private act or a general law under which corporations of this class are organized. Zabriskie v. Cleveland, Columbus dec. Railroad, 23 How. 381, 398; Thomas v. Railroad Co., 101 IT. S. 71; Pennsylvania Co. v. St. Louis, Alton d Terre Haute Railroad, 118 IT. S. 290, 630; Oregon Railway Co. v. Oregonian Railway Co., 130 IT. S. 1, 25; Railway Companies n. Keokuk Bridge Co., 131 IT. S. 371, 384. As the action in this case is upon the contract, and as the contract was prohibited by the charter of the Refrigerating Company, there can be no recovery upon it. The difficulty with the position of the plaintiffs in this case is this: If the purchase of the stock was the main object of the contract the consideration was an illegal one, and the promise of the Refrigerating Company to furnish its own 60 OCTOBER TERM, 1899. Syllabus. stock in payment was ultra vires. If, upon the other hand, the object of the contract was to obtain the assets and good will of the Consolidated Company upon payment of its debts, then the promise of the Refrigerating Company to pay the plaintiffs therefor was without consideration, since the assets were the property of the Consolidated Company and not of its stockholders, and anything realized by the sale of such assets belonged to the company or its assignee, and should be devoted first to the payment of its debts. If there were anything of value beyond the control of the stock which passed to the Refrigerating Company under the contract, the assignee could not be dispossessed of it until all the debts were paid or compromised, when it would revert to the corporation but not to the plaintiffs. Their title to sue must rest upon their ownership of the stock, and if the defence of ultra vires be sustained, we know of no theory upon which the plaintiffs can recover. It certainly cannot be true that the plaintiffs can take to themselves the hundred thousand dollars stipulated by this contract and leave creditors of the corporation unpaid to the extent of $150,000. The judgment of the Circuit Court of Appeals and of the Circuit Court must therefore be reversed, and the case remanded to the Circuit Court for the Eastern District of Missouri with directions to grant a new trial. Mk. Justice Brewer and Mr. Justice McKenna dissented. UNITED STATES v. CONWAY. APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS. No. 13. Argued and submitted January 12,1899. —Decided October 30, 1899. The act of Congress of December 22, 1858, 11 Stat. 374, confirming a grant of pueblos to Indians, operated to release to the Indians all the title of the United States to the land covered by it as effectually as if it contained in terms a grant de novo ; and such action of Congress is not subject to judicial review. UNITED STATES v. CONWAY. 61 Statement of the Case. The United States is a proper and necessary party to a suit brought in the Court of Private Land Claims for confirmation of a private land claim, covering pueblos previously so granted to Indians, and can follow the litigation through all the courts that are given jurisdiction of the case. When a title to public land has been confirmed by Congress, it should be respected by the Court of Private Land Claims : but conflicting claimants may resort to the ordinary remedies at law. This was a petition filed by Maria de la Paz Valdez de Conway and twenty-one others in the Court of Private Land Claims for the confirmation of a tract of land known as the Cuyamungue grant, or private land claim, situated in the county of Santa Fe, Territory of New Mexico, and alleged to contain in excess of five thousand acres. It appears from an examination of the expediente, offered in evidence as the basis of the claim, that on January 22,1731, Bernardino de Sena, Tomas de Sena and Luis Lopez presented a petition to Governor Juan Domingo Bustamente to grant them the surplus land in the abandoned pueblo of Cuyamungue as royal, public and uninhabited, and described it as being situated on both sides of the river Tesuque, (formerly Cuyamungue,) and extending from a bluff of the pueblo of Cuyamungue to the hills of the Nambe road. The governor made the grant on the same day, directed the chief alcalde of the new village of Santa Cruz to notify the Indians of the pueblo of Tesuque, the heirs of certain adjoining property owners and all other citizens of the vicinity to show cause, if any they had, why the tract should not be granted to the petitioners, and, if there were no objection, to put them in possession. Such notice having been given, the alcalde on January 22, 1731, put the petitioners in juridical possession of the lands, describing the boundaries; and, after executing such act, returned the proceedings to the governor, by whom they were approved and placed in the royal archives of the city of Santa Fe, testimonio thereof being delivered to the grantees, the original of which is now a part of the archives of the United States in the custody of the surveyor general of the Territory. The grantees, their heirs and assigns, have been in possession 62 OCTOBER TERM, 1899. Statement of the Case. of the land grant up to the present time, a period of one hundred and sixty-four years. The petition further alleged that the claim had been examined and approved by the surveyor general of the Territory, returned by him favorably to Congress with a recommendation that the same be confirmed to the legal representatives of the original petitioners; but that it had never been acted upon by Congress, or the authorities of the United States. The Government made no answer to the petition, but the court proceeded to hear the cause upon petition and proofs under the last clause of section six of the Court of Private Land Claims act, notwithstanding the failure of the Government to file an answer. Petitioners produced certain witnesses to the effect that portions of the land granted had been occupied and cultivated by persons claiming under the original grantees; while the Government showed that Indians of the pueblos of Nambe and Pojoaque had many years before instituted proceedings before the surveyor general of New Mexico under the act of July 22, 1854, for four leagues of land each; that the surveyor general had recommended that the lands thus demanded be granted to them, and Congress had confirmed the grant to each of said pueblos for four leagues as recommended, 11 Stat. 374, c. 5, December 22, 1858; that the grants to said pueblos were surveyed and patents for them issued; that such surveys covered the larger portions of the land of the old pueblo of Cuyamungue, which petitioners alleged were granted to the original grantees in this case. The oral testimony tended to show that the pueblo of Pojoaque had been in existence since 1710, and the pueblo of Nambe from a time immemorial. Upon motion made by the Government and upon the consent of all the parties to the proceeding, it was ordered on October 11, 1895, that these pueblos be made parties, and that the petition of the claimants be deemed amended accordingly. It did not appear that any copy of the petition was served upon these pueblos, or that they appeared or waived service; but the court on October 24, 1885, entered a decree against the United States confirming the entire grant as com- UNITED STATES v. CONWAY. 63 Opinion of the Court. plete and perfect as of the date of the treaty of Guadalupe Hidalgo, in 1848, and further decreed that the confirmation should in no nowise affect the rights of the pueblos of Pojoaque and Nambe, if any they have, as between them and the confirmees under their patents issued by the United States Government. Subsequently to this decree, and on November 9, the Indians of the two pueblos above named entered their appearance, stated that the lands confirmed to the petitioners were almost entirely within the limits of the lands confirmed by the act of Congress to these pueblos, and patented to them, and that while they were made parties defendant to the petition they were never served with process, and had no opportunity of making a defence, and therefore moved the court to vacate the decree of confirmation and allow them to be heard in opposition to the claim. This motion was subsequently, and on December 2, 1896, denied, whereupon the United States appealed to this court. Mr. Matthew G. Reynolds for the United States. Mr. Solicitor General was on his brief. Mr. John K. Knaebel^ for appellees, submitted on his brief. Mb. Justice Brown, after stating the case as above, delivered the opinion of the court. This case involves the proper disposition by the Court of Private Land Claims, under the act of Congress constituting the court, of overlapping grants. The facts are extremely simple: Petitioners derived their title by purchase or inheritance from the original grantees, who held under a royal grant made in 1731 by the then governor of New Mexico, and through which they had been in possession of portions of the land ever since. Their grant had been examined, surveyed and approved by the surveyor general of the United States in 1871, but had never been confirmed by Congress. It was not true, as stated in the petition, however, that “ no person or 64 OCTOBER TERM, 1899. Opinion of the Court. persons, natural or artificial, are in possession of the said land, or any part thereof, or claim the same or any part thereof adversely to your petitioners, or otherwise than by their lease or permission,” since it appears there were two Indian pueblos within the limits of the grant, from a time whence the memory of man and the traditions of the several tribes ran not to the contrary. It was shown that one of them, Pojoaque, had a bell originally cast for its church which bore the date of 1710. These pueblos had instituted proceedings before the surveyor general under the act of July 22, 1854, 10 Stat. 308, for four leagues of land, which he recommended to be granted, and in compliance therewith Congress confirmed a grant to each of said pueblos, which grants were subsequently surveyed and patents issued. 11 Stat. 374. These surveys covered all the land of the abandoned pueblo of Cuyamungue, granted to the petitioners, except about one hundred acres. It was insisted in the court below that the land covered by these patents should be excepted out of the degree of confirmation in this case; but it was held that the pueblos had no just right or claim at the date of the treaty to any part of the land covered by the petitioners’ grant; that the United States acquired no right or interest in the land of a citizen in the ceded territory held by a complete and perfect title at the date of the treaty; that Congress did not undertake to decide who was the rightful owner of the land confirmed to the pueblos, but on the contrary expressly stated that the patents were not to interfere with any prior right to the land which might be held by other parties. Said the court: “ If the petitioners in this case have a complete and perfect title to the land in question under the grant of 1731, it necessarily follows that the pueblos of Nambe and Pojoaque have no right or title to any of the land within the boundaries of such complete and perfect grant. But the decree of this court does not in any way affect the right and title (if any) that the pueblos acquired by their patents from the United States, as between them and petitioners.” The court declined to except out of the decree of confirmation the lands covered by the pueblos’ patents, but did adjudge that the confirmation should in nowise affect the rights of UNITED STATES v. CONWAY. 65 Opinion of the Court. the pueblos as between them and the petitioners under their patents. The case depends largely upon the construction given to the sections and parts of sections of the act of March 3, 1891, c. 539, 26 Stat. 854, constituting the Court of Private Land Claims. By section six the petitioner is required to set forth, among other things, “the name or names of any person or persons in possession of or claiming the same,” (the lands,) “ or any part thereof, otherwise than by the lease or permission of the petitioner ; . . . and a copy of such petition, with a citation to any adverse possessor or claimant, shall ... be served on such possessor or claimant in the ordinary legal manner of serving such process in the proper State or Territory, and in like manner on the attorney of the United States; ” whose duty it is “to enter an appearance, and plead, answer or demur, . . . and in no case shall a decree be entered otherwise than upon full legal proof and hearing.” By section seven the court has “full power to hear and determine all questions in cases before it relative to the title to the land the subject of such case; the extent, location and boundaries thereof, and other matters connected therewith fit and proper to be heard and determined, and by a final decree * to settle and determine the question of the validity of the title and the boundaries of the grant or claim presented for adjudication, . . . and all other questions properly arising between the claimants, or other parties in the case, and the United States.” By section eight, persons claiming lands under a Spanish or Mexican title “ that was complete and perfect at the date when the United States acquired sovereignty therein, shall have the right (but shall not be bound) to apply to said court in the manner in this act provided for in other cases for confirmation of such title; ” but the confirmation of such title “ shall be for so much land only as such perfect title shall be found to cover, always excepting any part of such land that shall Aaw been disposed of by the United States, and always subject to and not to affect any conflicting private interests, rights or vol. clxxv—5 66 OCTOBER TERM, 1899. Opinion of the Court. claims held or claimed adversely to any such claim or title, or adversely to the holder of any such claim or title. And no confirmation of claims or titles in this section mentioned shall have any effect other or further than as a release of all claim of title by the United States; and no private right of any person, as between himself and other claimants or persons in respect of any such lands, shall be in any manner affected thereby.” It was under this section that the petition in this case was presented and a “ complete and perfect title ” claimed. By section thirteen, defining the character of claims that shall be allowed as those 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,” it is provided in the second subdivision that “ no claim shall be allowed that shall interfere with, or overthrow, any just or unextinguished Indian title or right to any land or place;” and by subdivision four, that “no claim shall be allowed for any land the right to which has hitherto been lawfully acted upon or decided by Congress or under its authority.” Subdivision five provided: “ No proceeding, decree or act under this act shall conclude or affect the private rights of persons as between each other, all of which rights shall be preserved and saved to the same effect as if this act had not been passed; but the proceedings, decrees and acts herein provided for shall be conclusive of all rights as between the United States and all persons claiming any interest or right in such land.” Subdivision six provides: “ No confirmation of or decree concerning any claim under this act shall in any manner operate or have effect against the United States otherwise than as a release by the United States of its right and title to the land confirmed, nor shall it operate to make the United States in any manner liable in respect of any such grants, claims or lands, or their disposition, otherwise than as in this act provided.” 1, The decisive question in the case is; Whether the lands UNITED STATES v. CONWAY. 67 Opinion of the Court. confirmed by the act of Congress of December 22, 1858, pursuant to the recommendation of the surveyor general (11 Stat. 374) to the Indian pueblos of Pojoaque and Nambe, should have been excepted from the decree of confirmation ? This act also contains a proviso similar to that contained in the Court of Private Land Claims act, that “this confirmation shall only be construed as a relinquishment of all title and claim of the United States to any of said lands, and shall not affect any adverse valid rights should such exist.” This act operated, then, to release to the Indians all the title of the United States to the land covered by it, and passed the title of the United States as effectually as if it contained in terms a grant de novo. Ryan v. Carter, 93 U. S. 78, 82. Nor is the action of Congress confirming such private land claim subject to judicial review. As was said by this court in Tameling v. United States Freehold <& Emigration Co., 93 U. S. 644, 662: “ No jurisdiction over such claims in New Mexico was conferred upon the courts; but the surveyor general, in the exercise of the authority with which he was invested, decides them in the first instance. The final action on each claim reserved to Congress is, of course, conclusive, and therefore not subject to review in this or any other forum. It is obviously not the duty of this court to sit in judgment upon either the recital of the matters of fact by the surveyor general, or his decision declaring the validity of the grant. They are embodied in his report, which was laid before Congress for its consideration and action.” See also Maxwell Land Grant case, 121 U. S. 325. The Government having thus exhausted its power with reference to the land in dispute by granting all its title as sovereign proprietor to the pueblos, it is difficult to see upon what principle it is called upon to make or confirm another grant to a different person. Nothing can be plainer from the language of the Private Land Claim act than that lands “ that shall have been disposed of by the United States” should be excepted from the decree of confirmation, (sec. 8;) that no claim shall be allowed which shall interfere with or overthrow any just or unextinguished Indian title, (sec. 13;) that no 68 OCTOBER TERM, 1899. Opinion of the Court. claim shall be allowed for any land, the right to which has been lawfully acted upon and decided by Congress, (sec. 13,) and that no proceeding under the act shall conclude or affect the private rights of persons as between each other, (sec. 13). Under these provisions, if the court were to confirm this grant for lands already granted, such confirmation would be void, as nothing is better settled by this court than that a patent issued by the United States to lands which they do not own is a simple nullity. Pollas Lessee v. Wendell, 9 Cranch, 87, 99; 8. C., 5 Wheat. 293 ; Sabariego v. Maverick, 124 U. S. 261,281; Wright v. Roseberry, 121 U. S. 488, 520; Doolan v. Carr, 125 U. S. 618, 625; Noble v. Union River Logging Railroad, 147 U. S. 165, 174. It is true that the act of December 22, 1858, confirming these lands to the pueblos may have been itself void by reason of petitioner’s prior title thereto; but that is a question which is not necessarily involved in this case and upon which we express no opinion. It will occasionally happen that the Government through accident or inadvertence will patent the same land a second time ; but when its attention is called to the fact that the land has been previously patented it cannot patent the same land a second time without virtually stultifying itself. A patent assumes that a patentor has certain rights to convey, and that if those rights have already been conveyed with the knowledge of the grantor, a second patent carries with it a suspicion of a want of good faith. Nor is the confirmation of this patent essential to the protection of the petitioners. The title set forth is one which was complete and perfect at the date of the treaty, and while they had the right, under section eight, they were clearly not bound to apply to the court for a confirmation of such title, but were at liberty to resort to the local courts for its establishment. It is possible that the surveyor general, in recommending the grant of four square leagues to each pueblo, measured from the church as a centre, allowed more than was proper; yet, as he acted according to the opinion at one time prevailing, and as Congress confirmed the grant to that amount, the propriety of such grant cannot be attacked here upon that or UNITED STATES v. CONWAY. 69 Opinion of the Court. any other ground. As was said in the case of Tameling n. U. S. Freehold Co., 93 U. S. 644, 663: “Congress acted upon the claim as recommended for confirmation by the surveyor general. The confirmation being absolute and unconditional, without any limitation as to quantity, we must regard it as effectual and operative for the entire tract.” Nor is this the proper time to adjudicate upon the respective merits of the two titles. We have only to consider whether the Government can properly be called upon to confirm that which it has already confirmed to another party. The Court of Private Land Claims seems to have assumed that the grant by Congress to the pueblos was absolutely void by reason of the fact that the petitioners having a complete and perfect title the United States had nothing to convey. This may be entirely true, but it is not perceived how the petitioners’ title can be aided by the Government divesting itself for a second time of a title which it had already released. The duty of the court under section eight, “ to hear, try and determine the validity of the same ” (the grant) “ and the right of the claimant thereto, its extent, location and boundaries,” is discharged by determining the extent and validity of the grant as between the United States and the grantee, and it is not incumbent upon the Court of Private Land Claims to determine the priority of right as between him ■ and another grantee. Such private rights are carefully preserved in the eighth and thirteenth sections. 2. The appeal in this case was properly taken by the United States. While the Government may have no interest in the result of the litigation, it is a proper and necessary party to the suit, and it would be a strange conclusion to hold that it could not follow the litigation through all the courts that are given jurisdiction of the case. Upon such appeal the Government is at liberty to show that the petitioner is not entitled to a confirmation of his claim. Indeed, an appeal is expressly given by section nine, which enacts that “ the party against whom the court shall in any case decide — the United States in case of. the confirmation of the claim in whole or in part, and the claimant in case of a rejection of a claim in whole 70 OCTOBER TERM, 1899. Opinion of the Court. or in part — shall have the right of appeal to the Supremo Court of the United States.” 3. That the Indian claim or title is a “just and unextinguished ” one within the meaning of section thirteen, subdivision two, of the act is shown by the fact that such title was confirmed by Congress. By the word “ just ” in this connection is meant only a title which is good upon its face, or not manifestly frivolous — not one which shall ultimately turn out to be valid. As already observed, it was not the object of the act to permit private titles to be litigated in the Court of Private Land Claims, (although perhaps this may be done incidentally,) but merely to determine if and to whom the United States ought to release its rights as sovereign proprietor of the soil. As was said by this court in Adam, v. Norris, 103 U. S. 594: “But the United States, in dealing with the parties claiming under Mexican grants lands within the Territory ceded by the treaty of Mexico, never made pretence that it was the owner of them. When, therefore, guided by the action of the tribunals established to pass upon the validity of these alleged grants, the Government issued a patent, it was in the nature of a quitclaim — an admission that the rightful ownership had never been in the United States, but had passed at the time of the cession to the claimant, or to those under whom he claimed. This principle has been more than once clearly announced in this court. The leading cases are Beard v. Federy, 3 Wall. 478; Henshaw v. Bissell, 18 Wall. 268; Miller v. Bale, 92 U. S. 478. “ Such a patent was, therefore, conclusive only as between the United States and the grantee, [and was evidence that, as to them, the claimants had established the validity of the grant.] . . . We do not think, therefore, that if defendant’s survey and patent are based upon a superior Mexican grant, their rights are concluded by the prior survey of the plaintiffs.” We do not wish to be understood as holding that two claimants to the same land may not litigate, as between themselves, which of the two is entitled to a confirmation, and BEAL DE DOLORES DEL ORO v. UNITED STATES. 71 Syllabus. the question thus becomes res adjudicata ; but when the title has once been confirmed by Congress it should be respected by the Court of Private Land Claims as if it were a confirmation by the court itself, and conflicting claimants are at liberty to resort to the ordinary remedies at law or in equity, according to the nature of the claim. The main object of the Court of Private Land Claims is to ascertain and determine whether the land claimed as private property under the treaty is in fact private property, or, on the contrary, is public property. In the latter case, of course, a confirmation is refused; in the former case a confirmation is made if the claimant appears to have, as between himself and the United States, the right to it, but subject to the rights of others who are at liberty to assert their superior title in the local courts. We are therefore of opinion that the decree of confirmation should have excepted the pueblo lands, and such decree is accordingly reversed, and the case remanded for further proceedings in accordance with this opinion. Me. Justice Shibas and Mb. Justice White dissented. REAL DE DOLORES DEL ORO v. UNITED STATES. APPEAL FEOM THE COUBT OF PBTVATE LAND CLAIMS. No. 17. Argued and submitted January 12,1899. —Decided November 80,1899. A claim in the Court of Private Land Claims for land within the limits of a mine grant, which grant has been confirmed by Congress and a patent issued therefor, must be rejected by that court. Section 14 of the act of March 3, 1891, c. 539, 26 Stat. 854, 861, establishing that court, which provides for a personal judgment against the United States in cases where the land decreed to any claimant, under the provisions of the act, shall have been sold or granted by the United States, applies only to cases where such lands have been sold or granted as public lands, for a consideration which equitably belongs to the owner of the land, and not to cases where the Government has merely released its 72 OCTOBER TERM, 1899. Statement of the Case. interest to one apparently holding a good title under a Spanish or Mexican grant, which subsequently turns out to be invalid by reason of an older or better title. This was a petition filed by the town of Real de Dolores del Oro and Guadalupe Montoya against the United States, the New Mexico Mining Company, and a large number of other defendants, for the confirmation of a tract of land containing four square leagues, having for its centre the centre of the old Real de Dolores del Oro — being the church situated therein — with a prayer that the tract may be confirmed to the town, or to the petitioner Montoya in his own right, and in trust for the benefit of the other owners of lands within its limits. The petition set forth in substance that, in the year 1830, the governor of New Mexico founded the town of Real de Dolores del Oro according to the laws of New Mexico; that such town continued its existence from that time to the cession of said territory to the United States, having not less than forty residents, including not less than twenty householders and heads of families; that a church had been erected and maintained, and all of the requirements of the laws of the Republic of Mexico had been observed, and that the town had been fully recognized by public authority; that by virtue of such laws the town, in addition to the several allotments to its inhabitants, became and was entitled under the laws of Mexico to lands for the common use of the town, and in default of a grant for a larger quantity was entitled by law to a tract, including the lands held in severalty, of four square leagues from the centre of the town, namely, the church; that there was no direct evidence or record of such grant to the town ; that the town was not incorporated, but that the petitioner Montoya brought the petition on behalf of the town and himself, and of all other owners of land within the boundaries of the tract, and as the successors in part to the rights and title of the original grantee; that shortly after the acquisition of New Mexico by the United States the town ceased to exercise the powers and functions of a municipal government, or to elect municipal officers; that the tract is REAL DE DOLORES DEL ORO v. UNITED STATES. 73 Statement of the Case. now held and claimed by a large number of persons under such grant, and it is not known that any of the possessors or claimants thereof are adverse to the petitioners, though they are informed that the New Mexico Mining Company claims some title or interest therein by virtue of a private land grant, which is subordinate to their title; that no claim for such tract has ever been submitted to the authorities, and no survey of the tract has ever been made. Subsequently an order was made by the court requiring petitioners to bring before the court, as parties defendant, certain adverse possessors and claimants to portions of the land claimed under what was known as the San Antonio de las Huertas grant, then pending before the court. The United States answered this petition, traversing the petitioners’ allegations as to the origin, existence and right of the town to the grant claimed, and denied generally all the other allegations. The answer further averred that, even if such grant had been made as set forth in the petition, the land claimed thereunder was entirely within the limits of a tract of land known as the Ortiz Mine grant, which, by virtue of the laws, usages and customs, and mining ordinances of Mexico, was on the 28th of December, 1833, made to Jose Francisco Ortiz and Ignacio Cano; that the claim for such land was presented by the successors in interest of the original grantees, to the surveyor general of New Mexico, under the provisions of the act of Congress of July 22, 1854, for his approval. That the surveyor general subsequently approved the claim; transmitted the same to Congress, recommended its confirmation; and that afterwards Congress, by act approved March 1, 1861, confirmed said claim. That subsequently a survey was made by the public authorities, and on May 20, 1876, letters patent for such confirmed grant were duly issued to the New Mexico Mining Company as owner thereof. That such patent included the lands claimed in the petition, and that the action of Congress was and is conclusive and binding upon this court. To the allegation of the answer setting up the Ortiz Mine grant, the petitioners excepted upon the ground that th< 74 OCTOBER TERM, 1890. Opinion of the Court. answer did not allege that the right of the petitioners to said land described in their amended petition had ever been lawfully acted upon or decided by Congress, or under its authority, and that said matter in said amended answer was insufficient in law to constitute a defence. These exceptions were overruled by the court upon the ground that the claims of the petitioners were imperfect at the time the sovereignty and jurisdiction were acquired by the United States, and that it appeared by the answer that the Government had confirmed another grant and patented all the lands included in petitioners’ claim. The petitioners elected to stand upon the exceptions and introduced no evidence; and a decree was thereupon entered to the effect that petitioners’ grant “ was not a perfect and complete grant thereof at or prior to the date of the cession of New Mexico to the United States under and by virtue of the laws, usages and customs of the Republic of Mexico, in force at the alleged date thereof, and that the lands embraced within the said alleged grant to the petitioners lie wholly within the exterior boundaries” of the Ortiz mining grant; . . . “ and that the right to the said land having been thereby lawfully acted upon and decided by Congress, and the Government of the United States having divested itself of the title to said property by the said act of confirmation, and the said patent issued in pursuance thereof, this cause cannot be maintained in this court for the confirmation of the claim of petitioners, alleged in said amended petition.” Whereupon petitioners appealed to this court. J/r. II L. Warren, for appellants, submitted on his brief. Mr. Matthew G. Reynolds for the United States. Solicitor General was on his brief. Me. Justice Brown, after stating the case as above, delivered the opinion of the court. As it appears in this case that these lands were within the limits of the Ortiz Mine grant — which had been confirmed BEAL DE DOLORES DEL ORO v. UNITED STATES. 75 Opinion of the Court. by Congress, and a patent therefor issued to the principal defendant — it follows, without adverting to other defences, that under the opinion in United States v. Conway, just decided, the claim was properly rejected. Nor can the petition be sustained for an indemnity under section fourteen of the Private Land Claim act, as no such claim is made by the petition. We are also of opinion that section 14 of the act of March 3, 1891, c. 539, 26 Stat. 854, (printed in full in margin,1) which provides for a personal judgment against the United States in cases where the land decreed to any claimant, under the provisions of the act, shall have been sold or granted by the United States, applies only to cases where such lands have been sold or granted as public lands, for a consideration which equitably belongs to the owner of the land, and not to cases where the Government has merely released its interest to one apparently holding a .good title under a Spanish or Mexican grant, which subsequently turns out to be invalid by reason of an older’or better title. In the one case there is a moral obligation on the part of the Government to protect the real owner. In the other, there is a mere quitclaim of its rights to one who apparently has a better title thereto. There is no warranty, direct or indirect, that the title is a valid one, and no reason why the Government should be called upon to protect it. This was the ruling of the Court 1 Sec. 14. That if in any case it shall appear that the lands or any part thereof decreed to any claimant under the provisions of this act shall have been sold or granted by the United States to any other person, such title from the United States to such other person shall remain valid notwithstanding such decree, and upon proof being made to the satisfaction of said court of such sale or grant and the value of the lands so sold or granted, such court shall render judgment in favor of such claimant against the United States for the reasonable value of said lands so sold or granted, exclusive of betterments, not exceeding one dollar and twenty-five cents per acre for such lands; and such judgment, when found, shall be a charge on the Treasury of the United States. Either party deeming himself aggrieved by such judgment may appeal in the same manner as provided herein in cases of confirmation of a Spanish or Mexican grant. For the purpose of ascertaining the value and amount of such lands surveys may be ordered by the court, and proof taken before the court, or by a commissioner appointed for that purpose by the court. 76 OCTOBER TERM, 1899. Opinion of the Court of Private Land Claims in a prior case, and we think it is correct. The decree of the court below is therefore Affirmed. Mb. Justice Shibas and Me. Justice White dissented. AINSA v. NEW MEXICO AND ARIZONA RAILROAD COMPANY. appeal feom the supbeme couet of the teeeitoey of abizona. No. 1. Submitted March 8,16,1897. —Decided October 13,1899. Since the act of Congress of March 3, 1891, c. 539, establishing the Court of Private Land Claims, the courts of the Territory of Arizona have jurisdiction, as between private parties, to determine whether a title under a Mexican grant, which has not been confirmed or rejected by, and is not pending before Congress, and which is asserted to have been complete and perfect by the law prevailing in New Mexico before the cession of the country to the United States, was complete and perfect before the cession. The case is stated in the opinion. Air. Rochester Ford for Ainsa. Air. Solicitor General and Air. Alatthew G. Reynolds for the United States. Me. Justice Geay delivered the opinion of the court. This was a complaint, filed June 1, 1892, in a district court of the Territory of Arizona and county of Pima, by Santiago Ainsa, administrator with the will annexed of Frank Ely, against the New Mexico and Arizona Railroad Company, to quiet the plaintiff’s title in a tract of land in that county, known as the rancho San Jose de Sonoita, under a grant made by the Mexican Government to Leon Herreros on AINSA v. NEW MEXICO & ARIZONA RAILROAD. 77 Opinion of the Court. May 15, 1825, which, was alleged to have vested a complete and perfect title in fee in the grantee. • The defendant denied the plaintiff’s title; and asserted a right of way over the land under condemnation proceedings against persons who had entered thereon as preemption or homestead settlers, claiming that it was public land of the United States. The parties waived a trial by jury, and submitted the case to the judgment of the court upon an agreed statement of facts, which set forth what was admitted to be a correct translation of the “ title deeds of a grant of one sitio, and three fourths of another sitio, surveyed on behalf of Don Leon Herreros, resident of Tubac, situated in a place called San Jose de Sonoita” — consisting of the petition of Herreros to the intendente of the province of Sonora and Sinaloa; an order of the intendente for an official survey and valuation of the land; its survey and location by metes and bounds; the delivery of juridical possession to Herreros; a valuation of the land; a reference of the expediente to the promoter fiscal for examination, and his report recommending a sale by auction; a sale by auction to Herreros, after due publication of notice; the intendente’s approval of the proceedings; payment by Herreros of the amount of the valuation, with fees and costs; a grant to him by the commissary general in the usual form; and a record of the grant in the Mexican archives. It was agreed that these papers were executed and delivered according to their purport, and that the plaintiff was the vendee and assignee of all the right, title and interest of Herreros. It was also agreed that a petition for the confirmation by Congress, under the acts of July 22, 1854, c. 103, § 8, (10 Stat. 309,) and July 15,1870, c. 292, § 1, (16 Stat. 304,) of the Mexican grant, was filed on December 29, 1879, in the office of the United States surveyor general for the Territory of A rizona, but was never acted on by Congress; and that, at the time of the commencement of this suit, no proceedings for the confirmation of the grant were pending before Congress, or before any surveyor general of the United States, or before the Court 78 OCTOBER TERM, 1899. Opinion of the Court. of Private Land Claims created by the act of March 3,1891, c. 539. 26 Stat. 854.- It was also agreed that, before the commencement of this suit, certain persons named had entered upon the several tracts of the granted land, as preemption or homestead settlers, claiming them to be public lands of the United States; and that thereafter, and before the commencement of this suit, the defendant, by condemnation proceedings against, and mesne conveyances from, those persons, acquired and now claimed a right of way through those tracts and within the limits of the grant. The parties further stipulated that “ this statement of facts is for the purpose of this suit only, and nothing herein agreed upon shall be taken as admitted for or against either of the parties hereto in any other proceeding whatever.” The district court held that it had no jurisdiction, because the plaintiff claimed title under a Mexican grant which had not been confirmed by Congress, and therefore dismissed the suit; and its judgment was affirmed by the Supreme Court of the Territory. 36 Pacific Reporter, 213. The plaintiff appealed to this court. The case was originally submitted to this court upon a brief for the appellant only, without any opposing brief. But it was afterwards submitted anew upon the appellant’s brief, as well as a brief which the court allowed to be filed in behalf of the United States, because of their interest in the question involved, and of their being a party to a suit, involving the validity of the same Mexican grant, brought by the United States against this appellant in the Court of Private Land Claims, and since decided by this court and reported. Ely's Administrator v. United States, (1898) 171 U. S. 220. The question of jurisdiction presented by the record depends upon the effect of the treaty between the United States and Mexico of December 30,1853, (known as the Gadsden treaty,) and of the acts of Congress above cited ; and may be conveniently approached by first referring to the decisions of this court under various treaties by which the United States have acquired territory from France, Spain and Mexico. AINSA v. NEW MEXICO & ARIZONA RAILROAD. 79 Opinion of the Court. Private rights of property in land lying within a territory ceded by one independent nation to another by a treaty between them are not affected by the change of sovereignty and jurisdiction; and are entitled to protection, whether they are complete and absolute titles, or merely equitable interests needing some further act of the government to perfect the legal title. The duty of securing such rights, and of fulfilling the obligations imposed upon the United States by the treaty, belongs to the political department; and Congress may either itself discharge that duty, or delegate its performance to a strictly judicial tribunal or to a board of commissioners. United States n. Percheman, (1833) 7 Pet. 51, 86, 87; DeLassus v. United States, (1835) 9 Pet. 117,133; Strother n. Lucas, (1838) 12 Pet. 410, 438; Astiazaran v. Santa Rita Mining Co., (1893) 148 U. S. 80-82, and cases there cited; Stoneroad n. Stoneroad, (1895) 158 U. S. 240, 248; Rio Arriba Co. v. United States, (1897) 167 U. S. 298, 309. As was said by this court, speaking by Mr. Justice Trimble, in a leading case: “It may be admitted that the United States were bound, in good faith, by the terms of the treaty of cession by which they acquired the Floridas, to confirm such concessions as had been made by warrants of survey; yet it would not follow that the legal title would be perfected until confirmation. The Government of the United States has throughout acted upon a different principle in relation to these inchoate rights, in all its acquisitions of territory, whether from Spain or France. Whilst the Government has admitted its obligation to confirm such inchoate rights or concessions as had been fairly made, it has maintained that the legal title remained in the United States until, by some act of confirmation, it was passed or relinquished to the claimants. It has maintained its right to prescribe the forms and manner of proceeding in order to obtain a confirmation, and its right to establish tribunals to investigate and pronounce upon their fairness and validity.” De la Croix v. Chamberlain, (1827) 12 Wheat. 599, 601. Even grants which were complete at the time of the cession may be required by Congress to have their genuineness and their extent established by proceedings in a particular manner before 80 OCTOBER TERM, 1899. Opinion of the Court. they can be held to be valid. But where no such proceedings are expressly required by Congress, the recognition of grants of this class in the treaty itself is sufficient to give them full effect. The treaty of April 30, 1803, between the United States and the French Republic, by which the Province of Louisiana was ceded to the United States, provided, in article 3, as follows : “ The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion they profess.” 8 Stat. 202. By the act of March .2, 1805, c. 26, § 1, it was provided that persons who before October 1, 1800, being of full age and actually inhabiting and cultivating lands within the territories ceded by that treaty, had obtained a “ duly registered warrant or order of survey ” from the Spanish or French Government while in possession of those territories, should “be confirmed in their claims in the same manner as if their titles had been completed.” Section 4 provided that before March 1, 1806, persons claiming lands by virtue of a completed grant might file it, and persons claiming under an incomplete title should file all papers relating to it, with the register of the local land office. And by section 8, commissioners were to be appointed by the President with power to hear evidence and to decide in a summary way upon the validity of the claims, and to report to Congress all claims confirmed or rejected, and with the latter the evidence adduced in their support. 2 Stat. 324-327. The act of March 26, 1824, c. 173, enacted that it should il be lawful for any person ” claiming lands in the State of Missouri “by virtue of any French or Spanish grant, concession, warrant or order of survey, legally made, granted or issued by the proper authorities ” before March 10, 1804, “and which was protected or secured by the treaty” aforesaid “ and which might have been perfected into a complete title, under and in conformity to the laws, usages and cus- AINSA v. NEW MEXICO & ARIZONA RAILROAD. 81 Opinion of the Court. toms, under the government under which the same originated, had not the sovereignty of the country been transferred to the United States,” to present a petition, within two years from the passage of the act, to the District Court of the United States for the District of Missouri, for the confirmation of such claim; that court was given authority to hear evidence and pass upon the claim; and from its decision an appeal might be taken within a year to this court. 4 Stat. 52. The provisions of that act were extended to the States of Louisiana and Arkansas, and to parts of Mississippi and Alabama, by the act of June 17, 1844, c. 95, § 1. 5 Stat. 676. Under those statutes, it was uniformly held by this court that the jurisdiction of the District Court of the United States was limited to suits by persons, who had only an inchoate and equitable title, to obtain an absolute and legal one; and did not extend to a title which was complete and perfect when the treaty took effect; and the reason of those decisions, as declared by Chief Justice Taney speaking for the whole court, was that such a title “ is protected by the treaty, and is independent of any legislation by Congress, and requires no proceeding in a court of the United States to give it validity.” United States v. Pillerin, (1851) 13 How. 9; United States v. McCullagh, (1851) 13 How. 216. So in United States v. d'Auterieve, (1853) 15 How. 14, Mr. Justice Nelson, delivering the opinion of the majority of the court, said that the title of the petitioners, “ if still a subsisting one in them, is a complete and perfect one, and consequently not within the first section of that act [of 1844] which confers the jurisdiction upon this court. The place to litigate it is in the local jurisdiction of the State, by the common-law action of ejectment, or such other action as may be provided for the trial of the legal titles to real estate.” 15 How. 23, 24. And Mr. Justice Curtis and three other dissenting justices concurred in the judgment on that ground only. 15 How. 29. See also United States v. Roselius, (1853) 15 How. 36, 38; Maguire v. Tyler, (1869) 8 Wall. 650, 652; Dent v. Emmeger, (1871) 14 Wall. 308, 312; Trenier v. Stewart, (1879) 101 U. S. 797, 802. And the courts of the State of Louisiana habitually exercised jurisdiction to VOL. 6LXXV—6 82 OCTOBER TERM, 1899. Opinion of the Court. try and determine such titles. Lavergne v. El'kins, (1841) 17 Louisiana, 220, 230; Murdock v. Gurley, (1843) 5 Rob. (La.) 457, 466; Jewell v. Porche, (1847) 2 La. Ann. 148; Riddle v. Ratliff, (1853) 8 La. Ann. 106. The treaty of February 22, 1819, by which the King of Spain ceded East and West Florida to the United States, provided, in article 8, as follows: “ All the grants of land made before the 24th of January, 1818, by his Catholic Majesty, or by his lawful authorities, in the said territories ceded by his Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty.” 8 Stat. 258. In United States v. Percheman, (1833) 7 Pet. 51, this court, speaking by Chief Justice Marshall, said: “ A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The King cedes that only which belonged to him. Lands he had previously granted were not his tc cede. Neither party could so understand the cession. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world.” “ This article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction, which would impair that security further than its positive words require, would seem to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old; and those titles, so far at least as they were consummate, might be asserted in the courts of the United States, independently of this article.” 7 Pet. 86, 87. And it was accordingly held that a Spanish grant which was complete before the date mentioned in the treaty was confirmed by the treaty itself, needed no confirmation by Congress, and was not impaired by its rejection by the commissioners appointed by the President under authority of Congress to examine claims to lands in Florida. See also United States v. Arredondo, (1832) AINSA v. NEW MEXICO & ARIZONA RAILROAD. 83 Opinion of the Court. 6 Pet. 691; United States n. Wiggins, (1840) 14 Pet. 334, 349. The treaty of Guadalupe Hidalgo of February 2, 1848, by which the United States acquired California, as well as much of the present Territories of New Mexico and Arizona, from Mexico, provides, in article 8, that the property of Mexicans within the territory ceded “shall be inviolably respected,” and they and their heirs and grantees “ shall enjoy, with respect to it, guaranties equally ample as if the same belonged to citizens of the United States;” and, in article 9, that “ Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution ; and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.” 9 Stat. 929, 930. By the act of March 3, 1851, c. 41, entitled “An act to ascertain and settle private land claims in the State of California,” it was provided, in section 8, that “ each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government,” should present the same to commissioners, to be appointed by the President under the first section of the act; and, by subsequent sections, that the commissioners should decide upon the validity of each claim, and certify their decision, within thirty days, to the District Court of the United States; that the District Court, on the petition of either the claimant or the United States, might review the decision of the commissioners ; that an appeal might be taken from the decision of the District Court to this court; that any final decision should be conclusive between the claimant and the United States only, and should not affect third parties, unless they should intervene in the District Court, for which provision was made; 84 OCTOBER TERM, 1899. Opinion of the Court. and that “ all lands, the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held and considered as part of the public domain of the United States.” 9 Stat. 631-633. This court held that this provision included perfect as well as inchoate titles, and that consequently no suit could be maintained in a court of the State of California on any Spanish title whatsoever, if it had not been presented to the commissioners in accordance with the act of Congress. Botiller v. Dominguez, (1889) 130 U. S. 238, 252-254, and cases there cited. As was observed by Chief Justice Taney, in Fremont v. United States, (1854) 17 How. 542, 553, 554, and repeated by Mr. Justice Miller, in Botiller v. Dominguez, above cited, “ The eighth section embraces not only inchoate or equitable titles, but legal titles also; and requires them all to undergo examination, and to be passed upon by the court.” “ In this respect it differs from the act of 1824, under which the claims in Louisiana and Florida were decided. The jurisdiction of the court, in these cases, was confined to inchoate equitable titles, which required some other act of the Government to vest in the party the legal title or full ownership. If he claimed to have obtained from either of the former governments a full and perfect title, he was left to assert it in the ordinary forms of law, upon the documents under which he claimed.” The treaty of December 30, 1853, (known as the Gadsden treaty,) by which the Mexican Republic ceded to the United States additional territory now within the Territories of New Mexico and Arizona, including the land in controversy in this case, provides, in article 5, that all the provisions of the eighth and ninth articles of the treaty of Guadalupe Hidalgo shall apply to the territory thus ceded, “ and to all the rights of persons and property, both civil and ecclesiastical, within the same, as fully and as effectually as if the said articles were herein again recited and set forth; ” and, in article 6, that “ no grants of land within the territory ceded,” bearing date since September 25, 1853, “will be considered valid or be recognized by the United States, or will any grants made AINSA V. NEW MEXICO & ARIZONA RAILROAD. 85 Opinion of the Court. previously be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico.” 10 Stat. 1035. This last clause has been held by this court to require an authentic survey and final determination of the location and boundaries of the claim. Ainsa v. United States, (1895) 161 IT. S. 208, 222. But in the case at bar the plaintiff set up a completed grant, surveyed and located by definite boundaries long before September 25, 1853. The act of Congress of July 22, 1854, c. 103, provided for the appointment of surveyor general for New Mexico, (which then included what is now the Territory of Arizona,) and, by section 8, made it his duty, “ under such instructions as may be given by the Secretary of the Interior, to ascertain the origin, nature, character and extent of all claims to lands under the laws, usages and customs of Spain and Mexico; ” authorized him, for this purpose, to issue notices, summon witnesses, administer oaths and do all other necessary acts; and directed that he should make a full report, according to a form to be prescribed by the Secretary of the Interior, “on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo of 1848, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same, under the laws, usages and customs of the country before its cession to the United States;” that his report should “be laid before Congress, for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty of 1848and that, “until the final action of Congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by the Government.” 10 Stat. 308, 309. And by the Sundry Civil Appropriation Act of July 15, 1870, c. 292, it was enacted that the surveyor general of the Territory of Arizona, as to lands in that territory, should have all the powers conferred and perform all the duties enjoined upon the surveyor general of New Mexico by the act of 1854; and that his report should be laid before Congress, for such action thereon as should be deemed just and proper. 16 Stat. 304. 86 OCTOBER TERM, 1899. Opinion of the Court. Under those provisions of the acts of 1854 and 1870, it was held by this court that a claim reported by the surveyor general to Congress, and which had been confirmed by Congress, or upon which Congress had not acted, was not within the jurisdiction of the ordinary courts of justice. Tameling v. United States Freehold Co., (1876) 93 U. S. 644; Astiazaran v. Santa Rita Mining Co., 148 U. S. 80, above cited. But this court has never decided the question whether a claim under a Mexican grant, which was complete and perfect before the treaty of Guadalupe Hidalgo took effect, and no claim for which was pending either before the surveyor general or before Congress, could be asserted in the ordinary courts of justice while those provisions of the acts of 1854 and 1870 were in force. Nor is it necessary now to consider that question, because those provisions have been superseded and repealed by the act of March 3, 1891, c. 539, establishing the Court of Private Land Claims. 26 Stat. 854. By section 6 of this act, “ it shall and may be lawful for any person or persons or corporation, or their legal representatives, claiming lands within the limits of the territory derived by the United States from the Republic of Mexico, and now embraced within the territories of New Mexico, Arizona or Utah, or within the States of Nevada, Colorado or Wyoming, by virtue of any such Spanish or Mexican grant, concession, warrant or survey as the United States are bound to recognize and confirm by virtue of the treaties of cession of said country by Mexico to the United States, which at the date of the passage of this act have not been confirmed by act of Congress, or otherwise finally decided upon by lawful authority, and which are not already complete and perfect, in every such case to present a petition in writing to the said court,” which is authorized, after notice to any adverse possessor or occupant, and to the attorney for the United States, and full legal proof and hearing, to enter a decree confirming or rejecting the claim. By section 7, “ all proceedings subsequent to the filing of said petition shall be conducted as near as may be according to the practice of the courts of equity of the United States; AINSA v. NEW MEXICO & ARIZONA RAILROAD. 87 Opinion of the Court. and the court is authorized “ to hear and determine all questions arising in cases before it, relative to the title to the land the subject of such case, the extent, location and boundaries thereof, and other matters connected therewith fit and proper to be heard and determined, and by a final decree to settle and determine the question of the validity of the title and the boundaries of the grant or claim presented for adjudication, according to the law of nations,” the stipulations of the treaties between the United States and Mexico of 1848 and 1853, “ and the laws and ordinances of the government from which it is alleged to have been derived, and all other questions properly arising between the claimants or other parties in the case and the United States.” By section 8, “ any person or corporation claiming lands in any of the States or Territories mentioned in this act under a title, derived from the Spanish or Mexican government, that was complete and perfect at the date when the United States acquired sovereignty therein, shall have the right (but shall not be bound) to apply to said court, in the manner in this act provided for other cases, for a confirmation of such title; and on such application said court shall proceed to hear, try and determine the validity of the same, and the right of the claimant thereto, its extent, location and boundaries, in the same manner and with the same powers as in other cases in this act mentioned.” “And no confirmation of claims or titles in this section mentioned shall have any effect other or further than as a release of all claim of title by the United States; and no private right of any person, as between himself and other claimants or persons, in respect of any such lands, shall be in any manner affected thereby.” That section further provides that the United States may “ file in said court a petition against the holder or possessor of any claim or land in any of the States or Territories mentioned in this act, who shall not have voluntarily come in under the provisions of this act, stating in substance that the title of such holder or possessor is open to question, or stating in substance that the boundaries of any such land, the claimant or possessor to or of which has not brought the matter into court, 88 OCTOBER TERM, 1899. Opinion of the Court- are open to question, and praying that the title to any such land, or the boundaries thereof, if the title be admitted, be settled and adjudicated; and thereupon the court shall, on notice to such claimant or possessor as it shall deem reasonable, proceed to hear, try and determine the questions stated in such petition or arising in the matter, and determine the matter according to law, justice and the provisions of this act, but subject to all lawful rights adverse to such claimant or possessor, as between such claimant and possessor and any other claimant or possessor.” By section 9, either party against whom the Court of Private Claims decides may appeal to this court. By section 13, all the foregoing proceedings and rights are to be conducted and decided subject to several provisions, among which are the following: “ 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.” “ Fourth. No claim shall be allowed for any land the right to which has hitherto been lawfully acted upon and decided by Congress, or under its authority. “ Fifth. No proceeding, decree or act under this act shall conclude or affect the private rights of persons as between each other, all of which rights shall be reserved and saved to the same effect as if this act had not been passed; but the proceedings, decrees and acts herein provided for shall be conclusive of all rights as between the United States and all persons claiming any interest or right in such lands.” “ Eighth. No concession, grant or other authority to acquire AINSA v. NEW MEXICO & ARIZONA RAILROAD. 89 Opinion of the Court. land, made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it shall appear that every such condition and requirement was performed within the time and in the manner stated in any such concession, grant or other authority to acquire land.” The only authority given by this act to the surveyor general of a Territory or State is by section 10, which requires him, after a final decree of confirmation by the Court of Private Land Claims, and under the direction of the Commissioner of the General Land Office, to make a survey and return it to said commissioner, by whom it is to be transmitted to that court for its approval or correction. And section 15 expressly repeals section 8 of the act of July 22, 1854, “ and all acts amendatory or in extension thereof, or supplementary thereto, and all acts or parts of acts inconsistent with the provisions of this act.” The effect of these provisions of the act of 1891 is, that all prior acts of Congress providing for the assertion, whether in a judicial tribunal or before a surveyor general and Congress, of either complete or incomplete Mexican grants, are repealed, except as to claims previously acted upon and decided by Congress or under its authority; that all incomplete claims against the United States, coming within the provisions of the act, must be presented to the Court of Private Land Claims; that any one claiming land under a Mexican grant, which was complete and perfect at the time of the cession of sovereignty, “shall have the right (but shall not be bound) to apply to said court,” as in cases of incomplete grants; that the United States, however, may file a petition in that court “ against the holder or possessor of any claim or land,” which would doubtless include titles claimed to be complete, as well as those which were incomplete, at the time of the cession; and that all decisions under this act shall be conclusive between the claimants and the United States only, and shall not affect the private rights of any person, as between himself and any other claimant. In short, the United States, at their election, may have the validity of any Mexican grant, whether complete or incom- 90 OCTOBER TERM, 1899. Opinion of the Court. plete, determined by the Court of Private Land Claims, so far as concerns the interest of the United States; and proceedings to establish against the United States private titles claimed under incomplete Mexican grants are within the exclusive jurisdiction of that court; but the private holder of any complete and perfect Mexican grant may, but is not obliged to, have its validity as against the United States determined by that court; and no rights of private persons, as between themselves, can be determined by proceedings under this act. The result is that the United States, by the act of 1891, have prescribed and defined the only method by which grants incomplete before the cession can be completed and made binding upon the United States ; but have neither made it obligatory upon the owner of a title complete and perfect before the cession to resort to this method, nor declared that his title shall not be valid if he does not do so. A grant of land in New Mexico, which was complete and perfect before the cession of New Mexico to the United States, is in the same position as was a like grant in Louisiana or in Florida, and is not in the position of one under the peculiar acts of Congress in relation to California; and may be asserted, as against any adverse private claimant, in the ordinary courts of justice. In the present case, the Mexican grant in question being asserted by the plaintiff to have been complete and perfect by the law prevailing in New Mexico before the cession of the country of the United States; and it being agreed that this grant had neither been confirmed nor rejected by Congress, and that no proceedings for its confirmation were pending before Congress or before the surveyor general at the time of the commencement of this suit; this court, for the reasons above stated, is of opinion that the courts of the Territory of Arizona had jurisdiction, as between these parties, to determine whether the grant was complete and perfect before the cession by Mexico to the United States. Those courts having held otherwise, The judgment of the Supreme Court of the Territory of Aw HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 91 Syllabus. zona, affirming the judgment of the district court of Pima County, is reversed, and the case remanded for further proceedings. Mb. Chief Justice Fuller dissented. In No. 2, Ainsa v. New Mexico and Arizona Railroad Company, a similar case submitted by the same counsel at the same time, judgment was likewise reversed, Mr. Chief Justice Fuller dissenting. HARTFORD FIRE INSURANCE COMPANY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. CERTIORARI to the circuit court of appeals foe the eighth CIRCUIT. No. 5. Argued November 11,12,1897. — Decided November 6,1899. Questions of public policy, as affecting the liability for acts done, or upon contracts made and to be performed, within one of the States of the Union — when not controlled by the Constitution, laws or treaties of the United States, or by the principles of the commercial or mercantile law or of general jurisprudence, of national or universal application — are governed by the law of the State, as expressed in its own constitution and statutes, or declared by its highest court. A lease to a commercial partnership from a railroad corporation of a strip of its land by the side of its track in the State of Iowa, for the purpose of erecting and maintaining a cold storage warehouse thereon, contained an agreement that the corporation should not be liable to the partnership for any damage to the building or contents, by Are from the locomotive engines of the corporation, although owing to its negligence. At the trial of an action brought in the Circuit Court of the United States by the partnership against the corporation to recover for damage to the building and contents by Are from its locomotive engines, owing to its negligence, under a statute of the State making any railroad corporation liable for damage to property of others by Are from its locomotive engines, the plaintiff contended that the agreement was void as against public policy. It appeared that, since this lease, the highest court of the State, in an action between other parties, had at Arst held a like agreement to be void as against public policy, but, upon a rehearing, had reversed 92 OCTOBER TERM, 1899. Opinion of the Court. its opinion, and entered final judgment affirming the validity of the agreement ; and it also appeared that its final decision was not inconsistent with its decision or opinion in any other case. Held, that the question of the validity of the agreement was one of statutory and local law, and not of the commercial law, or of general jurisprudence ; and that the final decision of the state court thereon was rightly followed by the Circuit Court of the United States. The case is stated in the opinion. Mr. Charles A. Clark and Mr. Richard W. Barger for plaintiffs in error and petitioners. Mr. Charles B. Keeler and Mr. George R. Peck for defendants in error and respondents. Me. Justice Geay delivered the opinion of the court. This was an action brought May 10, 1893, in the district court of Jones County in the State of Iowa, against the Chicago, Milwaukee and St. Paul Railway Company, a railroad corporation of Wisconsin, by seven fire insurance companies, corporations of other States, to recover for the loss by fire, owing to the defendant’s negligence, of a warehouse and goods, belonging to the partnership of Simpson, McIntire & Company, and insured by the plaintiffs,, who had paid the loss. The petition alleged that on November 11, 1892, and long before, the partnership was doing business at Monticello in that county, and there owned a cold storage warehouse, situated upon railroad ground by the side of the railway track of the defendant in Monticello, and containing a valuable stock of butter and eggs; that on that day the defendant, while running its engines and cars on its railway track alongside of the warehouse, negligently set’fire to and destroyed the warehouse and its contents to the value of $27,118; that at the time of the fire the partnership held policies of insurance against fire on this property from each of the plaintiffs, and was afterwards paid by them, under those policies, the aggregate sum of $23,450; and that the plaintiffs thereby HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 93 Opinion of the Court. became, to that extent, subrogated to the partnership’s right against the defendant, and were entitled to judgment against it for the sum so paid, with interest. The defendant, on May 23, 1893, removed the case into the Circuit Court of the United States for the District of Iowa, and in that court, on September 12, 1893, filed an answer, admitting that the parties to the action were corporations, and that the partnership was doing business at Monticello, as alleged, but denying all the other allegations of the petition. On April 2,1894, by leave of court, an amended answer was filed, alleging that the land on which the warehouse stood belonged to the defendant as part of its depot grounds at Monticello; and that the sole right and occupancy of the partnership therein were by virtue of an indenture of lease, dated February 1, 1890, executed by the defendant and by the partnership, under which the partnership entered into and thenceforth occupied the land, and which was set forth in the answer, and was as follows: The defendant leased the land, (describing it by metes and bounds, showing it to be a strip, one hundred and thirty feet long and fifty-five feet wide, part of its depot grounds, and by the side of its track,) to the partnership, “ to hold for the term of one year from the date hereof, for the purpose of erecting and maintaining thereon a cold storage warehouse, the said lessee yielding and paying therefor the annual rent of five dollars in advance: and upon the express condition that the said railway company, its successors and assigns, shall be exempt and released, and said parties of the second part, for themselves and for their heirs, executors and administrators and assigns, do hereby expressly release them, from all liability or damage by reason of any injury to or destruction of any building or buildings now on, or which may hereafter be placed on, said premises, or of the fixtures, appurtenances or other personal property remaining inside or outside of said buildings, by fire occasioned or originated by sparks or burning coal from the locomotives, or from any damage done by trains or cars running off the track, or from carelessness or negligence of employes or agents of said railway com- 94 OCTOBER TERM, 1899. Opinion of the Court. pany; and further, that the said parties of the second part will in no way obstruct or interfere with the track of said railway company in using said premises. “And the parties of the second part agree to keep said premises in as good repair and condition as the same are in at the commencement of said term; to pay, as the same become due and payable, all taxes and assessments, general and special, that may be levied or assessed thereon during the time they remain in possession thereof; and to quit and surrender said premises at the expiration of said term, on demand of said railway company; and, in case such demand shall not be made at the expiration of said term, to pay said rent, at the rate and in the instalments aforesaid, as long as they remain in possession thereof; and that they will not underlease said premises without the written consent of said railway company. “ And said parties of the second part further agree to quit and surrender said premises at any time before the expiration of said first-mentioned term, or at any time when default shall be made in the payment of said rent or taxes as aforesaid, within thirty days after demand of said railway company; and that upon the expiration of said thirty days, it shall be lawful for said railway company to expel them therefrom. “ The parties of the second part may (and hereby agree that they will, if said railway company shall so require,) remove from said premises, within thirty days after any termination of this lease, all structures owned or placed thereon by them.” The amended answer concluded by alleging “ that from the first day of February, 1890, down to and including the time of said fire, Simpson, McIntire & Company remained in possession and occupancy of said premises under the terms and conditions of said original lease, and not otherwise; and were and continued to be tenants holding over under the lease aforesaid, and subject to all its provisions; and that, as to the alleged destruction by fire of the building and property mentioned m the plaintiffs’ petition, all such risks, and the loss therefrom, were assumed by said Simpson, McIntire & Company, and this defendant company was released therefrom, as one of the HARTFORD INS. CO. v. CHICAGO &c. BAILWAY. 95 Opinion of the Court. express conditions of said lease- and occupancy, and plaintiffs cannot now recover therefor. Wherefore the defendant prays judgment herein.” The plaintiffs demurred to the amended answer, on the ground that the stipulation in the lease, by which it was sought to exonerate the defendant from loss by fire caused by the negligence of itself or its servants, was void as against public policy. At the argument of the demurrer in the Circuit Court of the United States at April term 1894, before Judge Shiras, (as is shown by his opinion copied in the record, and printed in 62 Fed. Rep. 904,) it appeared that a case between other parties, involving the question at issue in this case, was then pending before the Supreme Court of the State of Iowa, under the following circumstances: In that case, entitled Griswold v. Illinois Central Railroad, that court, on October 19, 1892, (by an opinion reported only in 53 Northwestern Reporter, 295,) had held a similar stipulation to be void as against public policy; but, on February 3, 1894, upon a rehearing, had held to the contrary, and had sustained the validity of the stipulation, two judges dissenting. 90 Iowa, 265. A second petition for rehearing was then filed, and was still pending in that court. Under those circumstances, Judge Shiras suspended action on the demurrer, awaiting the final decision of the Supreme Court of the State. That court afterwards denied the second petition for rehearing, thereby finally affirming the validity of the stipulation; and thereupon Judge Shiras, at September term 1894, overruled the demurrer, and, the plaintiffs declining to plead further, rendered judgment for the defendant. That judgment was unanimously affirmed by the Circuit Court of Appeals, upon the ground that the stipulation was valid, and was not against public policy; Judges Sanborn and Thayer, however, expressing the opinion (Judge Caldwell nonconcurring in this respect) that the decision of the state court was not conclusive upon this question. 36 U. S. App. 152. The plaintiffs thereupon applied for and obtained this writ of certiorari. 96 OCTOBER TERM, 1899. Opinion of the Court. This action against a railroad corporation, for the loss by fire, owing to its negligence in running its engines and trains, of a cold storage warehouse and the goods therein, owned by a commercial partnership, is brought by insurers of the property, who had paid to the partnership the greater part of the loss, and whose right, thereby acquired by way of subrogation, to recover against the railroad company to the extent of the amount so paid, is but the same right that the partnership had. Phcenix Ins. Co. v. Erie Transportation Co., 117 U. 8. 312. It is important, therefore, in the first place, to ascertain exactly what were the relations between the railroad company and the partnership. The warehouse stood upon a strip of land, belonging to the railroad company, by the side of its track, and part of its depot grounds at Monticello in the State of Iowa. The sole right of the partnership in that strip was by virtue of an indenture of lease thereof, dated February 1, 1890, by which the railroad company leased it to the partnership for a year from that date, “ for the purpose of erecting and maintaining thereon a cold storage warehouse,” at an annual rent of five dollars payable in advance, “ and upon the express condition that the said railway company, its successors and assigns, shall be exempt and released,” and the lessees “dohereby expressly release them,” from all liability or damage by reason of any destruction or injury of buildings then upon or afterwards placed on the land, or of personal property inside or outside of those buildings, “ by fire occasioned or originated by sparks or burning coal from the locomotives, or from any damage done by trains or cars running off the track, or from the carelessness or negligence of employes or agents of said railway company ; ” and the lessees covenanted in no way to obstruct or interfere with the track of the railroad company. The rest of the indenture consisted of covenants of the lessees to keep the premises in repair; to pay the rent and taxes so long as they remained in possession ; to surrender possession to the lessor, at the expiration of the term, if then demanded, or, before its expiration, or on default in payment of rent or taxes, HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 97 Opinion of the Court. within thirty days after demand; and not to underlease without the lessor’s consent; with a further agreement that the lessees might, and, if required by the lessor, would, remove from the premises, within thirty days after any termination of the lease, all structures owned or placed thereon by them. The indenture, in short, is a lease by the railroad company of a strip of its land by the side of its track to the partnership, for the purpose of erecting and maintaining a cold storage warehouse thereon, for one year and for such longer time as the lessee may be permitted by the lessor to remain in possession ; and contains no further agreements, other than those usual between lessor and lessee, except a covenant of the lessee not to obstruct or interfere with the railroad track of the lessor; and an express condition of the lease, and covenant of the lessee, that the lessor shall not be liable to the lessee for any damage to the building or to personal property in or about it, by fire from the lessor’s locomotive engines, or by trains or cars running off the railroad track, although owing to the negligence of the lessor or its servants. The indenture contains no stipulation concerning, or even any mention of, any transportation of goods over the railroad, or any relation of the railroad company as a common carrier to the lessee or to the public ; and there is nothing in the record to show that such a relation existed between the railroad company and the lessee, or that the warehouse was built or maintained for the benefit of the public, or of the railroad corporation, or of any one but the partnership. The decision of the case turns upon the question whether the provision of this indenture, by which the railroad company is not to be liable for damage to the property by fire from its locomotive engines, owing to the negligence of itself or its servants, is void as against public policy. The plaintiffs’ counsel at the argument much relied on the cases in which similar provisions in the contracts of common carriers, or of telegraph companies, have been held to be void. , It is settled by the decisions of this court that a provision, ln a contract between a railroad corporation and the owner VOL. CLXXV—7 98 OCTOBER TERM, 1899. Opinion of the Court. of goods received by it as a common carrier, that it shall not be liable to him for any loss or injury of the goods by the negligence of itself or its servants, is contrary to public policy, and must be held to be void in the courts of the United States, without regard to the decisions of the courts of the State in which the question arises. But the reasons on which those decisions are founded are, that such a question is one of the general mercantile law; that the liability of a common carrier is created by the common law, and not by contract; that to use due care and diligence in carrying goods intrusted to him is an essential duty of his employment, which he cannot throw off; that a common carrier is under an obligation to the public to carry all goods offered to be carried, within the scope and capacity of the business which he has held himself out to the public as doing; and that, in making special contracts for the carriage of such goods, the carrier and the customer do not stand on equal terms. Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool Steam Co. n. Phenix Ins. Co., 129 U. S. 397, 439-442, and other cases there cited. Although a telegraph company is not a common carrier, yet its relation with senders of messages over its lines is of a commercial nature, and contracts that the company shall not be liable for the negligence of its servants, are affected, in some degree, by similar considerations. Express Co. v. Caldwell, 21 Wall. 264, 269 ; Western Union Tel. Co. n. Texas, 105 U. S. 460, 464; Primrose v. Western Union Tel. Co., 154 U. S. 1; Western Union Tel. Co. v. Cook, 15 U. S. App. 445; Harkness v. Western Union Tel. Co., 73 Iowa, 190. The plaintiffs further insisted that the same reasons apply universally, and should be held to defeat all contracts by which a party undertakes to put another at the mercy of his own faulty conduct. But the only authorities cited which sup-port this proposition are a general statement in Cooley on Torts, 687, and an obiter dictum in Johnson v. Richmond & Danville Railroad, 86 Virginia, 975, 978 ; and it is certainly too sweeping. Even a common carrier may obtain insurance against losses occasioned by the negligence of himself or of HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 99 Opinion of the Court. his servants, or may, by stipulation with the owner of goods carried, have the benefit of such insurance procured thereon by such owner. Phoenix Ins. Co. v. Erie Transportation Co., 117 U. S. 312; California Ins. Co. v. Union Compress Co., 133 U. S. 387, 414; Wager v. Providence Ins. Co., 150 U. S. 99. A railroad corporation holds its station grounds, railroad tracks and right of way, for the public use for which it is incorporated, yet as its private property, and to be occupied by itself or by others, in the manner which it may consider best fitted to promote, or not to interfere with, the public use. It may, in its discretion, permit them to be occupied by others with structures convenient for the receiving and delivering of freight upon its railroad, so long as a free and safe passage is left for the carriage of freight and passengers. Grand Trunk, Railroad v. Richardson, 91 U. S. 454. And it must provide reasonable means and facilities for receiving goods offered by the public to be transported over its road. Covington Stock-yards v. Keith, 139 U. S. 128. But it is not obliged, and cannot even be compelled by statute, against its will, to permit private persons or partnerships to erect and maintain elevators, warehouses or similar structures, for their own benefit, upon the land of the railroad company. ILissouri Pacific Railway v. Nebraska, 164 U. S. 403. In the case at bar, no one had the right to put a warehouse or other building upon the land of the railroad corporation without its consent; and the corporation was under no obligation to the public, or to the partnership, to permit the latter to do so. In granting and receiving the license from the corporation to the partnership to place and maintain a cold storage warehouse upon a strip of such land by the side of the railroad track, and in erecting the warehouse thereon, both parties knew that its proximity to the track must increase the risk of damages, whether by accident or by negligence, to the warehouse and its contents, by fire set by sparks from the locomotive engines, or by trains or cars running off the track. The principal consideration, expressed in their contract, for the license to build and maintain the warehouse on this strip 100 ^TOBER TERM, 1899. Cqv Opinion of the Court. o^^d, stipulation exempting the railroad company ^^m l^fHity kpthe licensee for any such damages: And the publi^iad i^^nterest in the question which of the parties to thO^>ntra<5^should be ultimately responsible for such damages JoSproperty placed on the land of the corporation by its con-^rent only. The case is wholly different from those, cited by the plaintiffs, in which a lease by a railroad corporation, transferring its entire property and franchises to another corporation, and thus undertaking to disable itself from performing all the duties to the public imposed upon it by its charter, has been held to be ultra vires, and therefore void — as in Thomas v. Railroad Co., 101 U. S. 71, and in Central Transportation Co. v. Pullman's Car Co., 139 IT. S. 24, and 171 U. S. 138. Questions of public policy, as affecting the liability for acts done, or upon contracts made and to be performed, within one of the States of the Union — when not controlled by the Constitution, laws or treaties of the United States, or by the principles of the commercial or mercantile law or of general jurisprudence, of national or universal application — are governed by the law of the State, as expressed in its own constitution and statutes, or declared by its highest court. Elmendorf v. Taylor, 10 Wheat. 152, 159; Bank of Augusta v. Earle, 13 Pet. 519, 594; Vidal n. Girard, 2 How. 127, 197; Bucher v. Cheshire Railroad, 125 U. S. 555, 58 lr 584; Detroit v. Osborne, 135 U. S. 492, 498, 499 ; Union Bank v. Kansas City Bank, 136 U. S. 223, 235 ; Etheridge v. Sperry, 139 U. S. 266, 276, 277; Ga/rdner v. Michigan Central Railroad, 150 U. S. 349, 357; Bamberger n. Schoolfield, 160 U. S. 149, 159; Missouri &c. Trust Co. v. Krumseig, 172 U. S. 351; Sioux City Railroad v. Trust Co. of North America, 173 U. S. 99. The validity of the agreement now in controversy does not depend upon the Constitution, laws or treaties of the United States, or upon any principle of the commercial or mercantile law, or of general jurisprudence. Generally speaking, the right of a railroad corporation to build its road, and to run its locomotive engines and cars thereon, within any State, is derived from the legislature of HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 101 Opinion of the Court. the State; and it is within the undisputed powers of that legislature-to prescribe the precautions that the corporation shall take to guard against injuries to the property of others by the running of its trains; as well as the measure of its liability in case such injuries happen. Among the most familiar instances of the exercise of this power are statutes requiring a railroad corporation to erect fences between its road and adjoining lands, and subjecting it to either single or double damages for any injury to cattle or other animals caused by its neglect to do so; Missouri Pacific Railway v. Humes, 115 U. S. 512; Minneapolis & St. Louis Railway v. Beckwith, 129 U. S. 26; Same v. Emmons, 149 U. S. 364 ; and statutes making a railroad corporation liable, for damages to property of others from fire set by sparks from its locomotive engines, either independently of negligence on its part, or in case of such negligence only. St. Louis & San Francisco Railway v. Matthews, 165 U. S. 1; Atchison &c. Railroad n. Matthews, 174 U. S. 96. As was well said by the Circuit Court, in the case at bar, in a passage quoted by this court in St. Louis & San Francisco Railway v. Matthews, just cited: “ The right to use the agencies of fire and steam in the movement of railway trains in Iowa is derived from the legislation of the State; and it certainly cannot be denied that it is for the State to determine what safeguards must be used to prevent the escape of fire, and to define the extent of the liability for fires resulting from the operations of trains by means of steam locomotives. This is a matter within state control. The legislation of the State determines the width of the right of way used by the companies. The State may require the companies to keep the right of way free from combustible material. It may require the depot and other buildings used by the company to be of stone, brick or other like material, when built in cities, or in close proximity to other buildings. The State, by legislation, may establish the extent of the liability of railway companies for damages resulting from fires caused in the operation of the roads.” 62 Fed. Rep. 907; 165 U. S. 17. The statutes and decisions of the State of Iowa, so far as 102 OCTOBER TERM, 1899. Opinion of the Court. they have been brought to our notice, that throw any light upon the present case, are the following : In Richmond v. Dubuque & Sioux City Railroad, (1868) 26 Iowa, 191, the railroad company leased a piece of ground at its eastern terminus on the bank of the Mississippi River to an elevator company; and it was agreed between them that the elevator company should maintain an elevator building thereon, and should receive and discharge for the railroad company at certain rates, all grain brought over the railroad, shipped primarily to points beyond or other than Dubuque, and should have the handling of all such grain ; and that the railroad company, during the lease, would not itself erect, or lease or grant to any other party the right to erect, a similar building in Dubuque. The railroad company, being sued on the agreement, contended that it was in contravention of sound public policy, as giving to the elevator company a monopoly of all the through grain brought over the railroad. But the Supreme Court of Iowa held the agreement to be valid, and, in the course of its opinion, said: “ The elevator is mainly a means or instrumentality for loading and unloading grain into and out of cars, boats, barges or other vehicles, and, incidentally, for storing the same; it is in no just sense a connecting line of transit or connecting common carrier to the defendants’ lines.” 26 Iowa, 197. “The power of courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt.” 26 Iowa, 202. The statute of Iowa of 1862, c. 169, § 6, (substantially reenacted in the code of 1873, § 1289,) provided that “ any railroad company hereafter running or operating its road in this State, and failing to fence such roads on either or both sides thereof, against live stock running at large, at all points where said roads have the right to fence, shall be absolutely liable to the owner of any live stock injured, killed or destroyed by reason of the want of such fence or fences as aforesaid, for the value of the property so injured, killed or destroyed unless the injury complained of is occasioned by the wilful act of the HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 103 Opinion of the Court. owner or his agent;” that, “in order to recover, it shall only be necessary for the owner of the property to prove the injury or destruction complained of; ” and that, if the company should neglect to pay for thirty days after notice and affidavit, the owner might recover double damages. Under that statute it was held to be no defence that the stock was unlawfully running at large, if not by the wilful act of the owner or his agent. Spence v. Chicago & Northwestern, Railway, (1868) 25 Iowa, 139. But where the owner of land had agreed to maintain a fence between it and the railroad, the court, while holding that persons not in privity of estate with him might still recover, said that it could not be doubted that he and his privies were estopped by his agreement to maintain an action against the company under that statute. Warren v. Keokuk & Des Moines Railroad, (1875) 41 Iowa, 484, 486. Upon the question of the liability of a railroad corporation for damage done to the property of others by fire from its locomotive engines, in the absence of any contract between the parties, the course of legislation and decision in Iowa was as follows: Before any statute upon the subject, the corporation was held not to be liable, without proof of negligence on its part, or if the plaintiff’s own negligence contributed to the loss. Kesee n. Chicago c& Northwestern Railroad, (1870) 30 Iowa, 78; Gandy v. Same, (1870) 30 Iowa, 420; McCum-mons v. Same, (1871) 33 Iowa, 187; Garrett v. Same, (1872) 36 Iowa, 121. Thereupon the legislature amended the section above cited by adding a provision that “ any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway; and such damage may be recovered by the party damaged, in the same manner as set forth in this section in regard to stock, except to double damages.” Code of 1873, § 1289. This amendment was at first assumed to impose an absolute liability upon the corporation, independently of its negligence, and was held to be constitutional. Rodemacher n. Milwaukee de St. Paul Railway, (1875) 41 Iowa, 297. But it was afterwards settled, upon a consideration of the whole section, that the effect of the amendment was only to change the burden of proof in actions 104 OCTOBER TERM, 1899. Opinion of the Court. for damages by fire; that the fact that the fire was set out or caused by operating the railway was qxAj prima facie evidence of negligence on the part of the company; and that such negligence need not be alleged. Small v. Chicago, Rock Island & Pacific Rail/road, (1879) 50 Iowa, 338; Babcock v. Chicago & Northwestern Railway, (1883) 62 Iowa, 593; Seska v. Chicago, Milwaukee <& St. Paul Railway, (1889) 77 Iowa, 137; Engle n. Same, (1889) 77 Iowa, 661. It was also held that, by virtue of the statute, contributory negligence on the part of the plaintiff was no defence to such an action. West v. Chicago & Northwestern Railway, (1889) 77 Iowa, 654; Engle's case, just cited. The Code of Iowa of 1873, in § 1308, reenacting the statute of Iowa in 1867, c. 113, provided that “ no contract, receipt, rule or regulation shall exempt any corporation, engaged in transporting persons or property, by railway, from liability of a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule or regulation been made or entered into.” That statute was rigidly enforced by the Supreme Court of Iowa in suits against railroad corporations as carriers. Brush v. Sabula dec. Railroad, (1876) 43 Iowa, 554; McCoy v. Keokuk do Des Moines Railroad, (1876) 44 Iowa, 424. But no intimation that it applied to them in any other relation was ever made by that court before the execution of the agreement in question in the case at bar. To recapitulate: Before February 1, 1890, the date of this agreement, the Supreme Court of Iowa had declared that an elevator erected by another party by agreement with a railroad company upon the land of the latter was in no just sense a connecting line of transit, or a connecting common carrier, with the line of the railroad; and that the power of the courts to declare a contract void for being in contravention of public policy should be exercised only in cases free from doubt. That court, in 1875, when construing section 1289 of the Code of 1873, had declared that an action under the first part of that section, which makes a railroad corporation, failing to fence its road wherever it had a right to do so, absolutely liable to an action by the owner of any. live stock killed or injured by HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 105 Opinion of the Court. the want of such fencing, could not be maintained by an owner of adjoining land who had agreed with the railroad company to maintain the fence at the place in question. , And that court had never expressed any opinion upon the effect of such an agreement as is now pleaded upon an action against a railroad company, under the latter part of that section, for damages by fire caused by the negligence of its servants in operating its railway. After this agreement was made, and before this action was begun, a similar agreement was brought before the courts of the State of Iowa, in the case of Griswold v. Illinois Central Railroad, which arose under a contract substantially similar to that now before us, except in containing covenants by the lessee to put in immediate use and to maintain a good and substantial elevator, coal sheds and lumber yard on the premises; to ship all grain, coal and lumber that he can control by the lessor’s railroad ; and to “ transact the business for which said buildings are erected and designed at fair and reasonable rates, and in a prompt and careful manner, so that neither the company nor the public will be prejudiced by reason of the said lessee dealing unfairly or negligently in their behalf, or in the transaction of the business connected with the grain, coal and lumber buildings so erected as aforesaid.” A district court of the State having upheld the validity of the contract, and rendered judgment for the defendant, the plaintiff appealed to the Supreme Court of the State. That court, at the first hearing, expressed an opinion that the stipulation in the contract, exempting the railroad company from liability to the lessee for damages by fire negligently set by its locomotive engines to such buildings, was void as against public policy; and among the grounds on which that opinion was placed were that the covenants just quoted, and the prospect for business which the existence and use of those buildings held out to the railroad company, “ were no doubt the controlling consideration which induced it to execute the lease,” and that “the lease itself fully recognizes an interest of the public in its subject-matter.” 53 Northwestern eporter, 295, 297. It does not clearly appear what that opin- 106 OCTOBER TERM, 1899. Opinion of the Court. ion would have been, but for those covenants, no equivalent for which is to be found in the lease now before us. But that court granted a rehearing, and on February 3, 1894, after further arguments, and, by a majority of the judges, reversed its former opinion, affirmed the judgment of the district court, and held the stipulation in question to be valid. 90 Iowa, 265. Its course of reasoning may be shown by quoting some passages of the opinion. In the first place, it was said : “ Public policy is variable — the very reverse of that which is the policy of the public at one time may become public policy at another; hence no fixed rule can be given by which to determine what is public policy. The authorities all agree that a contract is not void as against public policy, unless it is injurious to the interests of the public, or contravenes some established interest of society.” So far, the opinion is in precise accord with the opinion of this court in Pope Manufacturing Co. v. GormuUy, 144 U. S. 224, 233. The Iowa court then quoted with approval the saying of Sir George Jessel, M. R., in Printing Co. v. Sampson, L. R. 19 Eq. 462, 465 : “ It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into fairly and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider — that you are not lightly to interfere with this freedom of contract.” The court went on to say: “ The defendant owed no duty to the public to exercise care with respect to its own buildings situate on its right of way, and incurred no liability for their negligent burning, unless the fire spread beyond its own premises. The operation of a railway increases the danger from fire to property situated on the premises of its owner, where he has the right to have it, and hence the provision of section 1289 making the corporation operating the railway HARTFORD INS. CO. v. CHICAGO &c. RAILWAY. 107 Opinion of the Court. absolutely liable for all damages by fire that is negligently set out or caused by the operation of the railway. As to such property, the railway company owes to the public the duty of care, and the public has an interest in the performance of that duty. Therefore a contract that exempts from that duty to the public would be injurious to the public interests, and against public policy. The plaintiff Griswold’s buildings were not upon his own premises, nor where he had a right to have them, independent of the defendant; they were upon the right of way, where they could only be by its permission. In granting the permission, and in placing the buildings there, both parties knew of the increased hazard of the location from fire communicated either through accident or negligence in the operation of the road. They knew that the defendant corporation could only act through its officers, agents and employes, and that these might be negligent in the performance of their duties.” “ This is not a question whether, under section 1289, the defendant would be liable to Griswold for negligently communicating fire to this property in the absence of a contract to the contrary; but it is whether the public has any interest that this contract contravenes. It seems to us now quite clear that, as these buildings could only be placed upon the defendant’s right of way by its consent, and were so placed upon the premises, and on the conditions expressed in the lease, the public had no interest therein, under said section 1289 or otherwise, that would be injured by giving effect to the agreement in question. Much as the public may have been interested in the convenience of such a place of business, it had no interest as to who should carry the hazard incident to that property being located as it was.” “ Upon further consideration we are of the opinion that this contract was not made by the defendant in its capacity as a common carrier, and that the provision of section 1308 is not applicable.” “ After a careful review of the case, we reach the conclusion that the public had no interest in the clause of the contract in question, that its enforcement works no injury to any interest of the public, and that the judgment of the district court should be affirmed.” 108 OCTOBER TERM, 1899. Opinion of the Court. A’ second petition for rehearing was then filed, and that case had not been finally decided by the Supreme Court of Iowa when the present case came before the Circuit Court of the United States at April term 1894. The Circuit Court thereupon suspended judgment in this case; and at September term 1894 — the state court having meanwhile denied the second petition for a rehearing, and thereby finally affirmed the validity of the stipulation — followed the final decision of that court, and gave judgment for the defendant. 62 Fed. Rep. 904. The first opinion of the Supreme Court of the State of Iowa in the case of Griswold v. Illinois Central Railroad was delivered after the agreement now in question was made. The final decision in that case, reversing the former opinion, was made after repeated arguments and full consideration; was nowise inconsistent, to say the least, with the decision or the opinion of that court in any other case ; and was rendered before the case at bar was decided in the Circuit Court of the United States. Under such circumstances, that decision, being upon a question of statutory and local law, was rightly followed by the Circuit Court. Rowan v. Runnels, 5 How. 134, 139; Morgan v. Curtenius, 20 How. 1; Fairfield v. Gallatin County, 100 U. S. 47, 52; Burgess v. Seligman, 107 U. S. 20, 35; Bauserman v. Blunt, 147 U. S. 647, 653—656, and cases there cited; Williams v. Eggleston, 170 U. S. 304, 311; Sioux City Railroad v. Trust Company of North America, 173 U. S. 99; Wade v. Travis County, 174 IT. 8. 499. The judgment of the Circuit Court of Appeals, affirming the judgment of the Circuit Court, is therefore affirmed. BIENVILLE WATER SUPPLY CO. v. MOBILE. 109 Counsel for Parties. BIENVILLE WATER SUPPLY COMPANY v. MOBILE. APPEAL from the circuit court of the united states for the SOUTHERN DISTRICT OF ALABAMA. No. 868. Submitted October 10, 1899. —Decided November 6,1899. The Bienville Water Supply Company was a corporation organized under the laws of Alabama, and was authorized thereby to build water works in Mobile and to use the streets of that city for water purposes. The city and that company were authorized to contract together for the purpose of supplying the city with water. In the contract made between them under this authority there was no express provision for furnishing the inhabitants of the city with water, and no stipulation by the company that it would do so, though it was clear that the parties contemplated that the company would contract with the inhabitants to supply them with water for domestic purposes. The city was also authorized by the legislature to build or otherwise acquire water works of its own to supply water to itself and its inhabitants for the extinguishment of fires, and for sanitary and domestic purposes, and in its contract with the Bienville Company the city did not agree not to do so. It did agree to pay the company monthly for a certain number of hydrants supplied by it, but there was no averment on the part of the company that the city had repudiated said obligation or refused to make such stipulated payments, or intended to do so. The company filed a bill in equity against the city to enjoin it from making or carrying out any other contract for supplying water to its inhabitants, or for constructing a system of water works for that purpose during the continuance of said contracts and from building or acquiring a system of water works to bring water into the city during such continuance. To this bill the city demurred. The bill was dismissed. Appeal being taken to this court, a motion was made to dismiss it, joined with a motion to affirm. Held, that as there were no facts averred showing that the city had violated, was violating, or intended to violate its contracts with the Bienville Company, and as there was no legislation to that end, the bill was properly dismissed in the court below; and as there was color for the motion in this court to dismiss, the motion to affirm would be sustained. Motion to dismiss or affirm. The case is stated in the opinion. B. B. Boone and Mr. E. L. Bussell for the motion. D. P. Bestor and Mr. B. H. Clarite opposing. 110 OCTOBER TERM, 1899. Opinion of the Court. Mk. Chief Justice Fuller delivered the opinion of the court. This was a bill in equity filed in the Circuit Court of the United States for the Southern District of Alabama by the Bienville Water Supply Company against the city of Mobile and its mayor to enjoin defendants from making or carrying out any contract for supplying water to the inhabitants of the city or for constructing a system of water works for that purpose during the continuance of certain contracts between complainant and the city, made parts of the bill, and from building or acquiring a system of water works to bring water into the city during such continuance. The parties were all citizens of Alabama, but complainant invoked the jurisdiction of the Circuit Court on the ground that the case was one arising under the Constitution of the United States, in that the contracts between it and the city were violated and impaired in the premises. Defendants demurred, assigning special causes, among which were the following: “ (1) Because said bill, taken in connection with Exhibits ‘A’ and ‘ B,’ made a part thereof, shows that no contract was made between the city of Mobile and the Bienville Water Supply Company as to the rates to be charged the inhabitants of said city for water, but that said contract merely fixed a maximum rate that said water company was to charge the inhabitants of said city of Mobile. “(2) Because said bill of complaint shows that said city of Mobile was specially authorized and empowered by its charter and by the act of the general assembly of Alabama approved November 30, 1898, (and of which said act this court will take judicial notice,) to buy or to build, erect and maintain, and to operate water works for the supply of its inhabitants with water, and for the extinguishment of fires, and for sanitary, domestic and other purposes. “ (3) Because there is nothing shown or alleged in said bill of complaint and in said Exhibits ‘A’ and 1B,’ made a part thereof, which precludes or estops the city of Mobile from BIENVILLE WATER SUPPLY CO. v. MOBILE. Ill Opinion of the Court. buying, building, erecting, maintaining and operating a system of water works. “ (4) Because said Exhibits ‘A’ and ‘ B,’ made a part of said bill of complaint, show that the only obligation resting upon and binding upon said city of Mobile is that it shall pay to said Bienville Water Supply Company the sum of fifty dollars ($50.00) each per annum, payments to be made monthly, for two hundred and sixty fire hydrants placed on the streets of said city by said water supply company until the expiration of said contract on July 1, a.d. 1900, and it is not alleged or charged in said bill of complaint that the city of Mobile has or intends to repudiate its obligation to pay for said two hundred and sixty fire hydrants at the rate of fifty dollars each per annum, payments to be made monthly.” “ (8) Because said bill of complaint fails to allege any facts which show that the city of Mobile has or intends to do or commit any act which will impair the said contract between the city of Mobile and the Bienville Water Supply Company, and which said contract is made a part of the bill of complaint. “ (9) Because it is shown upon the face of said bill of complaint that the city of Mobile did not grant the complainant the franchise to lay its said water mains and pipes in the city of Mobile, but that it was done by the general assembly of Alabama, and from which it appears that said city of Mobile had no lawful authority to grant or to enter into a contract with complainant, conferring thereby the exclusive right or privilege of supplying water to the inhabitants of said city of Mobile.” The court sustained the demurrer on the foregoing grounds and gave complainant fifteen days in which to amend, and, no amendment having been made, dismissed the bill. From that decree an appeal to this court was allowed and perfected, and motions to dismiss or affirm submitted. The opinion of the Circuit Court, Toulmin, J., is reported 95 Fed. Rep. 539, and states the facts appearing from the bill, and pertinent legislation, in substance, correctly, as follows: Complainant was a corporation chartered by the legislature of Alabama for the purpose, among other things, of supplying 112 OCTOBER TERM, 1899. Opinion of the Court. water to the city of Mobile, a municipal corporation of the State, and its inhabitants, and was authorized to construct the needed canals, ditches, pipes, aqueducts, etc., best suited for the purpose, and was “ charged with the duty of introducing into the port of Mobile (city) such supply of pure water as the domestic, sanitary and municipal wants thereof may require.” Accordingly complainant laid mains and pipes in the streets of the city and established hydrants and fire plugs therein and built a reservoir and erected pumps connecting with such mains and pipes at large expense to itself; and used the property to supply the city and its inhabitants with water. August 15, 1888, complainant entered into a contract with the city to furnish for its use 260 fire hydrants, and to furnish water for fire service of a certain number of streams and pressure, and further agreed that the city should have the unrestricted use of the hydrants for such fire purposes and the free use of water for all municipal buildings, and that the company would not charge a greater or higher rate for water for domestic use than that specified in the contract. In consideration of complainant’s stipulations, the city agreed to pay complainant for the use of the hydrants, monthly, at the rate of $50 a hydrant per annum, during the continuance of the contract, which was for a term of six years. April 14,1891, the contract was changed in some particulars and the term extended to twelve years. These two contracts were annexed to the bill and marked Exhibits “ A ” and “ B.” The bill averred that complainant had complied and was complying with all the obligations and requirements of the contract on his part, and that the city had violated and was violating the contract in that it had bought and taken possession of a water works plant, and was now operating the same, selling water to customers and cutting rates below those fixed in the contract, and actually competing in the business of selling and furnishing water to its inhabitants, and that it had taken away some of complainant’s customers, thereby decreasing its income. And .further, that the city was building another system of water works to supply itself and its inhabitants with water, and that it claimed the right so to do under BIENVILLE WATER SUPPLY CO. v. MOBILE. 113 Opinion of the Court. the provisions of its charter and an act of the legislature of Alabama of November 30, 1898. The charter provided that the city might contract for, build, purchase or otherwise acquire public works subject to the approval of a majority vote of the citizens of Mobile at a special election called therefor, and in July, 1897, such an election was held, and a majority of the votes cast were in favor of the city contracting for or otherwise acquiring water works to be owned and operated by the city and the issuing of bonds to pay for the same. The act of November 30, 1898, authorized the issuing of bonds for that purpose. It was further averred that acting under and by virtue of the power granted by the charter and the act of November 30, the city had entered into a contract to have a system of water works built, and that the building of the same was now going on, and that it had made a contract with certain persons to take said bonds, who had already taken and paid for a part of them. Complainant contended that the city had no legal right to impair the value of its plant and to destroy or diminish its income therefrom, which would be the effect of the city’s action in building water works and furnishing water to its inhabitants, and it was averred that defendant was insolvent, and that the only way complainant could protect itself was through the interposition of a court of equity. It was not asserted by complainant that it had been granted an exclusive franchise to furnish water to the city and its inhabitants, but that under the contracts the city had no right to furnish water to other persons or to build or acquire a system of water works to supply water to itself and its inhabitants, and that to do this was a violation thereof. The Circuit Court observed that the city of Mobile granted complainant no rights or privileges whatever, but that the legislature of the State granted it the right to build water works and to use the streets of the city for water purposes, and authorized complainant and the city to contract together for the purpose of supplying the city with water. The contract was made, but there was no express provision in it for furnishing the inhabitants with water and no stipulation by complainant that it would do so, though it was clear that the VOL. CLXXV—8 114 OCTOBER TERM, 1899. Syllabus. parties contemplated that complainant would contract with the inhabitants to supply them with water for domestic purposes, since it was stipulated that complainant should not charge for water so supplied higher rates than those specified therein. On the other hand, the city was authorized and empowered by its charter and the act of the legislature of November 30, 1898, to build or otherwise acquire water works of its own to supply water to itself and its inhabitants for the extinguishment of fires and for sanitary and domestic purposes, and the city in its contracts with complainant did not agree not to do so. It did agree to pay complainant for a certain number of hydrants erected and supplied by it, and to make the payments monthly, but there was no averment that the city had by act or word repudiated its obligation or failed or refused to make the payments stipulated for, or that it intended to do so. In short, there were no facts averred showing that the city had violated, was violating, or intended to violate, its contracts with complainant, and there was no legislation to that end. Such being the state of the case, the Circuit Court did not err in dismissing the bill, and as there was color for the motion to dismiss, the motion to affirm will be sustained. Decree affirmed. In re BLAKE AND OTHERS, Ex parte. No number, original. Application for leave presented October 30,1899. — Denied November 13,1899. Blake v. McClung, 172 U. S. 239, (which case was brought here by writ of error to the Supreme Court of the State of Tennessee,) having been remanded to that court, and the mandate having gone down, the counsel of Blake and others moved for the entry of a decree placing them in the same class and on exact equality with the Tennessee creditors in respect to the distribution of the assets of the insolvent company among its creditors; but this the state Supreme Court declined to do, and entered a decree that Blake and others were entitled to participate in the assets on the basis of a broad distribution of the assets of the corporation among all In re BLAKE AND OTHERS, Ex parte. Statement of the Case. 115 of its creditors without preference or priority, as though the act of 1877 had not been passed; that there should be a computation of the aggregate indebtedness due from the corporation to its creditors of every class wherever residing, whereupon Blake and others should be paid the percentage and proportion found to be due to them on that basis; and that the residue of the estate of the insolvent company should be applied, first to the payment of the indebtedness due to the creditors of the corporation residing in Tennessee as provided in section five of the act of 1877, and then pro rata to the payment of the debts of the alien and non-resident creditors of said corporation other than Blake and others. To this decree Blake and others duly excepted, but, insisting that that court had not complied with the mandate of this court, applied for leave to file a petition for mandamus to compel such compliance. Held that, without inquiring whether the conclusions of the Supreme Court of Tennessee were or were not in harmony with the views expressed by this court, the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error and not by mandamus, the remedy on error being not only entirely adequate, and open to be sought unrestrained by the amount involved, but, in respect of dealing with state tribunals, being manifestly the proper remedy. The Embreeville Freehold, Land, Iron and Railway Company, Limited, was a corporation organized under the laws of Great Britain and Ireland for mining and manufacturing purposes, carrying on business in the State of Tennessee, as authorized by a law of that State of March 19, 1877. The fifth section of the act gave priority in the distribution of assets to resident creditors of the State. The company having become insolvent, McClung and others filed an original creditors’ bill in the proper court, asking the appointment of a receiver and the administration of the affairs of the company as an insolvent corporation. The case resulted in a final decree by the Supreme Court of Tennessee adjudging that the Tennessee creditors were entitled, under said section, to priority in the distribution of the assets over simple contract creditors of other states and countries. Among the creditors affected were C. G. Blake and Rogers, Brown and Company, citizens of the State of Ohio, and the Hull Coal and Coke Company, a corporation of Virginia, who, being dissatisfied, sued out a writ of error from this court. And it was held, reversing the decree of the state Supreme Court, that the fifth section of the act of 1877, in so far as it gave priority to 116 OCTOBER TERM, 1899. Statement of the Case. Tennessee creditors over creditors of the same class of other States of the Union, was in violation of the second section of the fourth article of the Constitution, providing that “ the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States; ” but it was also ruled that a corporation created under the laws of another State was not a “ citizen” within the meaning of this clause. Blake v. McClung, 172 U. S/239, 258, 261. In the opinion, among other things, it was said: “We adjudge that when the general property and assets of a private corporation, lawfully doing business in a State, are in course of administration by the courts of such State, creditors who are citizens of other States are entitled, under the Constitution of the United States, to stand upon the same plane with creditors of like class who are citizens of such State, and cannot be denied equality of right simply because they do not reside in that State, but are citizens residing in other States of the Union.” The judgment was in these terms: “ The final judgment of the Supreme Court of Tennessee must be affirmed as to the Hull Coal and Coke Company, because it did not deny to that corporation any right, privilege or immunity secured to it by the Constitution of the United States. As to the other plaintiffs in error, citizens of Ohio, the judgment must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion ; and it is so ordered.” The mandate having gone down, the counsel of Blake and Rogers, ’Brown and Company moved for the entry of a decree placing them in the same class and on exact equality with the Tennessee creditors in respect to the distribution of the assets of the insolvent company among its creditors, but this the state Supreme Court declined to do, and entered a decree that Blake and Rogers, Brown and Company were entitled to participate in the assets on the basis of a broad distribution of the assets of the corporation among all of its creditors without preference or priority, as though the act of 1877 had not been passed ; that there should be a computation of the aggregate indebtedness due from the corporation to its creditors of every In re BLAKE AND OTHERS, Ex parte. Opinion of the Court. 117 class wherever residing, whereupon Blake and Rogers, Brown and Company should be paid the percentage and proportion found to be due to them on that basis; and that the residue of the estate of the insolvent company should be applied first to the payment of the indebtedness due to the creditors of the corporation residing in Tennessee as provided in section five of the act of 1877, and then pro rata to the payment of the debts of the alien and non-resident creditors of said corporation other than Blake and Rogers, Brown and Company. Beard, J., dissented. 52 S. W. Rep. 1001. To this decree Blake and Rogers, Brown and Company duly excepted, but, insisting that that court had not complied with the mandate of this court, applied for leave to file a petition for mandamus to compel such compliance. Mr. Heber J. May and Mr. Tully R. Cornicle filed a brief for petitioners. Mr. S. C. Williams and Mr. John W. Green were allowed to file a brief in opposition. Me. Chief Justice Fullee, after making the above statement of the case, delivered the opinion of the court. The writ of mandamus cannot be issued to compel a judicial tribunal to decide a matter within its discretion in a particular way, or to review its judicial action had in the exercise of legitimate jurisdiction, nor be used to perform the office of an appeal or writ of error. And it only lies, as a general rule, where there is no other adequate remedy. As respects the Federal courts, it is well settled that where the mandate leaves nothing to the judgment or discretion of the court below, and that court mistakes or misconstrues the decree or judgment of this court and does not give full effect-to the mandate, its action may be controlled, either upon a new appeal or writ of error if involving a sufficient amount, or by writ of mandamus to execute the mandate of this court. City Bank of Fort orth n. Hunter, 152 U. S. 512; In re Sanford Fork and Tool Company, 160 U. S. 247; In re Potts, 166 U. S. 263. 118 OCTOBER TERM, 1899. Opinion of the Court. Nevertheless, without inquiring whether the conclusions of the Supreme Court of Tennessee were or were not in harmony with the views expressed by this court, we are of opinion that the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error and not by mandamus. The remedy on error is not only entirely adequate and open to be sought unrestrained by the amount involved, but in respect of dealing with state tribunals is manifestly the proper remedy. That it is adequate under § 709 of the Revised Statutes is clear. Stanley n. Schwalby, 162 U. S. 255, a case on a second writ of error to the state court, in which the statutes and decisions bearing on the subject are fully considered. And that it should be resorted to when the action of the state courts is complained of is equally plain. Assuming that the question of the form of the proceeding which this court might adopt to enforce the execution of its own mandates in the courts of the United States is one of practice merely, and either mode might be pursued, as ruled by Mr. Chief Justice Taney in Perkins v. Fourniquet, 14 How. 328, 330, we think the summary character of the proceeding by mandamus renders it inappropriate in respect of the courts of another jurisdiction. By the thirteenth section of the judiciary act of September 24,1789, c. 20,1 Stat. 81, this court was clothed with the power to issue “writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States; ” and this was carried forward into § 688 of the Revised Statutes. And it was ruled in Graham n. Norton, 15 Wall. 427, that “ this express authority to issue writs of mandamus to National courts and officers has always been held to exclude authority to issue these writs to state courts and officers; ” excepting “ where they have been issued as process to enforce judgments.” In Gordon v. Longest, 16 Pet. 97, which was a writ of error to review the action of a state court wrongfully refusing to remove a case into the Circuit Court, Mr. Justice McLean intimated that mandamus might lie to compel action by the state court, but the remark was purely obiter and cannot be regarded as authoritative. In re BLAKE AND OTHERS, Ex parte. Opinion of the Court. 119 By the fourteenth section of the judiciary act, Circuit Courts were vested with power “ to issue writs of scire facias, . . . and all other writs not specially provided for by statute, which may be necessary to the exercise of their respective jurisdictions, and agreeable to the principles and usages of law; ” which was reenacted as section 716 of the Revised Statutes. In Bath County v. Amy, 13 Wall. 244, it was held that the Circuit Courts had no power to issue writs of mandamus to state courts, by way of original proceeding, and where the writ was neither necessary nor ancillary to any jurisdiction which the court then had. But our attention has been called to no case in which this court has exercised jurisdiction by mandamus under circumstances similar to those supposed to exist here; while there are cases in the Circuit Courts which illustrate the propriety of declining to do so. In Ladd v. Tudor, 3 Wood. & Min. 325, 332, which was an application for a mandamus to compel a state court to remove a cause to the Circuit Court, Mr. Justice Woodbury said : “Some doubt might exist, whether a mandamus to a state court from this tribunal organized under another government, was a proper remedy. It has been settled that a state court cannot issue a mandamus to an officer of the United States. McClung v. Silliman, 6 Wheat. 598. In 16 Pet. 97 the remedy was by a writ of error to reverse the first judgment in the state court. And where another remedy lies, a mandamus is held to be improper. 10 Johns. 484. But Cooke, 160, seems to countenance the present cause. Brown v. Crippin, 4 Hen. & M. 173, quoted in some of the digests for it, seems, on examination, to be a case of a mandamus by the highest state court to the common pleas in the same State, to remove such a case, and not one from a court of the United States. . . In McIntire v. Wood, 7 Cranch, 504, it was held that a mandamus did not lie from the Circuit Court to an officer of the United States; and though that speaks generally of the power of this court to issue it in order to sustain its jurisdiction, and the decision in Cooke rests on that power of superior courts to enforce their jurisdiction over inferior ones by man- 120 OCTOBER TERM, 1899. Syllabus. damus, yet it is very questionable whether a case like the present ought to be considered within that principle. It is a correct principle between inferior and superior courts of the same government, but difficult to be upheld between courts established by separate governments. If necessary to decide on this, it might require more grave consideration before sustaining it in cases like this, because being a mode of redress very likely to lead to jealousies and collisions between the States and General Government of a character anything but desirable.” The Justices n. Murray, 9 Wall. 274, was a writ of error to the Circuit Court for the Southern District of New York from a judgment for a peremptory mandamus rendered against the justices of the Supreme Court of New York for the Third District to remove a cause, but Mr. Justice Nelson stated in a note on page 276, that: “ The alternative and peremptory mandamus against the Supreme Court of New York was allowed by consent of the counsel for the defendants, with a view to present the question raised and decided in the case. The Circuit Court had refused to issue it against the court, and issued it only against the clerk. This is stated to prevent the case from being cited as an authority for the power, and without intending to express any opinion on this subject.” And see Hough v. Western Transportation Company, 1 Bissell, 425, Drummond, J.; Fish v. Union Pacific Railroad Company, 6 Blatchford, 362, Blatchford, J.; High on Extr. Remedies, Third Edition, § 227 et seg., and cases cited. Leave to file petition denied. NEW ORLEANS v. WARNER. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 172. Argued March 13,1899. —Decided November 13, 1899. Following the decisions of the Supreme Court of Louisiana, this court holds that the drainage warrants of the city of New Orleans, in question in this case, being neither bills of exchange, nor promissory notes, nor notes pay- NEW ORLEANS v. WARNER. 121 Syllabus. able to order or bearer, nor effects negotiable by indorsement or delivery, are not included within the terms of Article 3540 of the Civil Code of Louisiana, prescribing certain actions therein named; and are not prescribed by the statutes of that State. The city of New Orleans, having voluntarily assumed the obligations of a trustee with respect to the fund to be raised by the collection of drainage assessments, cannot set up the prescription contained in Article 3547 of the Code against an application which, as such trustee, it had undertaken and had failed to perform — the rule being well settled that, in an action by a cestui que trust against an express trustee, the statute of limitations has no application, and no length of time is a bar. It is immaterial whether the assessments against the city itself for the drainage of public property were reduced to judgments or not: by reducing its own claim to judgment, it neither ceased to be debtor nor trustee. The judgment and decree in Peake v. New Orleans, 139 U. S. 342, cannot be considered as a controlling authority in this case, the facts being different, as shown in the opinion of the court in this case; and it would be inequitable to permit the city to set up that decision as an excuse for its failure to collect these assessments. A judgment for taxes does not differ from any other judgment in respect to its conclusiveness, and the city of New Orleans cannot, after the lapse of more than twenty years, question its liability upon the judgments against it for the amount of these assessments. It was the intention of the amendment of 1874 to the constitution of Louisiana, limiting the power of New Orleans to contract debts thereafter, to validate the issues of drainage warrants, some of which are questioned in this suit, not only for the work done, but for the property purchased by the city, in case it should elect to do the work itself. The fact that the city chose in 1876 to pay for property which Van Norden bought from the Ship Canal Company in 1872 six times as much as he then paid for it, is one that cannot be considered here; as, from the decision in Fletcher v. Peck, 6 Cranch, 87, to the present time this court has uniformly refused to inquire into the motives of legislative bodies. The objection that the decree finds the city a debtor to the complainant in the amount of the warrants is more apparent than real, since it also declares that he is entitled to be paid out of the drainage assessments, refers it to a master to state an account of such assessments, and provides for an absolute decree against the city only if the fund established by the accounting shall be sufiicient, and for a pro rata decree if such fund be r not sufficient to pay all the warrant holders in full. The liability of the city to pay interest was conditioned upon the presentation of the warrants and the indorsement upon them of the date of such presentation; but the commencement of suit was a sufficient demand o charge the defendant the interest from that day, at the rate specified in the contract. 122 OCTOBER TERM, 1899. Statement of the Case. This was a bill in equity filed November 26, 1894, in the Circuit Court for the Eastern District of Louisiana by John G. Warner, a citizen of the State of New York, on behalf of himself and all other parties holding obligations of the same nature and kind as himself, to charge the city of New Orleans as the debtor of specific taxes, averred to have been levied by lawful authority, for the payment of certain warrants issued for the purchase of a drainage plant and franchise, the collection of which was made the duty of petitioner by statutes hereinafter set forth. A liability on the part of the city was averred as a result of a contract alleged to have been broken by it, and a disregard and violation of duties imposed upon it by statute, as to the prosecution of the work of drainage, and the collection of assessments therefor. The facts of the case are so fully set forth in the cases of Peake v. New Orleans, 139 U. S. 342, and Warner v. New Orleans, 167 U. S. 467, that a succinct statement of such facts, taken largely from the opinion of the Circuit Court of Appeals, is all that is deemed necessary here. By an act approved March 18, 1858, the legislature of Louisiana provided for a system of draining certain lands within the city of New Orleans and elsewhere, which was to be carried out by boards of commissioners appointed for the three districts into which the territory was divided. The act further provided for plans of the work to be prepared by the commissioners, for assessments to be levied upon the lands benefited, and for the entry of judgments decreeing the lands to be subject to a lien for such amount as might be assessed. By a supplemental act, approved March 17,1859, the boards of commissioners were authorized to borrow money to carry on the work, and to issue bonds therefor. It was contemplated that the money should be raised at once for the payment of the work, in anticipation of the collection of the assessments. By an act approved March 1, 1861, the prior acts were amended by providing for a summary mode of collecting the assessments, authorizing the commissioners to apply to certain courts for the approval and homologation of the assessment rolls, which approval and homologation the act declared NEW ORLEANS v. WARNER. 123 Statement of the Case. “shall be a judgment against the property assessed and the owners thereof, upon which execution may issue in the ordinary mode of proceeding.” The commissioners made plans of the work proposed to be done, including therein the streets, squares and public places within the several districts, as the property of the city of New Orleans, and from time to time judgments were rendered charging these public places, as well as private property, with the amounts that had been assessed for drainage purposes. The city was named as the owner of these public places in the tableaux, and judgments were rendered against it as such owner for sums amounting in the several districts to $719,926.63. On February 24, 1871, the legislature passed an act entitled “ An act to provide for the drainage of New Orleans.” This act abolished the several boards of drainage commissioners, transferred their assets to the Board of Administrators of the city of New Orleans, subrogated this board to all the rights, powers and facilities then possessed by the commissioners, directed it to collect the balance due on the assessments as shown by the books of the drainage districts, “ which said assessments are hereby confirmed and made exigible at such time and in such manner as the Board of Administrators may designate.” It further authorized the Mississippi and Mexican Gulf Ship Canal Company to undertake the work of draining the city, required the Board of Administrators to place all collections of drainage assessments to the credit of such company and hold the same as a fund to be applied to the drainage of New Orleans and Carrollton. Under these and the prior acts, assessments were made and reduced to judgment against the city on the area of the streets and other public places within the drainage districts, to the amount of $696,349.30, and against private persons to the amount of $1,003,342.98, of which about $330,000 have been collected from private property in cash and drainage warrants, leaving outstanding at the date of the filing of the bill in this case uncollected assessments to the amount of $1,469,714.47, of which the city owes $696,349.30. By an act passed February 24, 1876, after more than two 124 OCTOBER TERM, 1899. Statement of the Case. thirds of the drainage system had been completed, the city of New Orleans was authorized to purchase, if the common council deemed it advisable, the property and franchises of the Ship Canal Company or its transferee, including all tools, implements, machines, boats and apparatus belonging to said company or its transferee, on a valuation to be fixed by appraisers to be appointed by the common council, the amount to be paid in warrants drawn against the drainage assessments. It further provided that the city should have exclusive control of all the powers and franchises granted to the Ship Canal Company, and should alone have the power to do all the drainage work required to be paid for by assessment upon property or from the city treasury. Meantime, however, the Ship Canal Company, having become embarrassed, on May 22, 1872, assigned all its rights to Warren Van Norden. Acting under the authority of this act of February 24, 1876, the city accepted the option, appointed an appraiser of the property of the Ship Canal Company, and authorized the mayor to purchase of said company, or its transferee, all its property, and to stipulate for a full settlement of all its claims for damages. Thereupon the mayor entered into a contract with the Canal Company and with Van Norden, its transferee, for the purchase of their property and the relinquishment of all their claims for damages, for the sum of $300,000, payable in drainage warrants. In this contract of sale the city covenanted and agreed “ that the existing rights and powers of the holders of drainage warrants, under the civil acts of the legislature of this State relative to drainage and drainage assessments, shall remain unimpaired, and that the drainage tax and assessment shall be administered, collected and paid ” in the manner and under certain terms specified, and that “ the collection of drainage assessments shall be assigned to an officer, who shall be selected by the said W. Van Norden and be confirmed by the city council.” The city further agreed “ not to obstruct or impede, but, on the contrary, to facilitate, by all lawful means, the collection of the drainage assessments as provided by law, until said warrants have been fully paid, NEW ORLEANS v. WARNER. 125 Statement of the Case. it being well understood by and between the said parties hereto that collections of drainage assessments shall not be diverted from the liquidation of said warrants and expenses as hereinabove provided for, under any pretext whatsoever, until the full and final payment of the same.” The bill, after reciting these facts, averred in substance that upon acquiring the drainage plant and franchises of the canal company the city abandoned all drainage work and suffered the dredge boats and machinery purchased as above stated to decay and become valueless, and that, by reason of the city’s failure to complete the drainage and benefit the lands, the courts have refused to enforce the collection of the assessments ; that, having thus abandoned all drainage work, the city, by its ordinances and by a proclamation of the mayor, then advised property holders not to pay the assessments, and that, in consequence of these ordinances and said proclamation and the decisions of the courts, the drainage assessments became practically valueless and uncollectible. The bill further averred that the city had issued bonds in exchange for drainage warrants given for work done prior to the sale, under the authority of the act of the legislature of 1872, to an amount in excess of all the drainage assessments, which it will claim operated as a discharge of its liability, as assessee of the streets, etc., and of all liability it may have incurred by any dereliction of duty in regard to the assessments against private property, but that this claim was not made known to Van Norden at the time of the purchase, and that he would not have parted with his property for a consideration payable out of drainage assessments, if he had known that such claim would be set up to defeat the payment of the price. The bill closed with a prayer for an accounting of the drainage fund, including the amounts due by the city and the application thereof to the payment of the complainant’s warrants and those held by others similarly situated who might come in and avail themselves of the benefits of the bill. To this bill the defendant demurred for want of jurisdiction and of equity, and because the matters sought to be litigated had been decided adversely to complainant’s pretensions by 126 OCTOBER TERM, 1899. Statement of the Case. the Circuit Court in the case of Peaice n. New Orleans, and by the Supreme Court on appeal in the same case, 139 IL 8. 342. This demurrer was sustained, the bill dismissed by the Circuit Court, and the case carried to the Circuit Court of Appeals for the Fifth Circuit. That court, being in doubt as to the application of the Peaice case, certified to this court the questions: First, whether the city, under the warranties, expressed and implied, contained in the contract of sale of June 7, 1876, by which it acquired the property and franchise from Warren Van Norden, was estopped from pleading against the complainant the issuance of bonds to retire $1,672,105.21 of drainage warrants, issued prior to said sale, as a discharge of its obligation to account for drainage funds collected on private property, and as a discharge of its own liability to that fund as assessee of the streets and squares; and, second, whether the decision in Peaice v. New Orleans should be held to apply to the facts of this case and operate to defeat complainant’s action. The first of these questions this court answered in the affirmative ; the second it declined to answer. Warner v. New Orleans, 167 U. S. 467. Thereupon the Court of Appeals held that the city was estopped from pleading the issue of the bonds, and that the Peaice case did not necessarily apply to the facts of this case, nor operate to defeat the plaintiff’s action. The decree of the Circuit Court sustaining the demurrer was reversed, and the case remanded with instructions to proceed to a decision upon the merits. 52 U. S. App. 348. The case subsequently went to a hearing upon the pleadings and proofs in the Circuit Court, and resulted in a decree dismissing the bill. Thereupon an appeal was taken to the Circuit Court of Appeals, which reversed the decree of the Circuit Court and remanded the case to that court with directions to enter a decree that the city was indebted to Warner in $6000 with eight per cent interest from June 6, 1876, to be paid out of the drainage assessments set forth in the bill; that such assessments, including those against the city, as the owner of its streets and squares, constituted a trust fund in NEW ORLEANS v. WARNER. 127 Opinion of the Court. the hands of the city for the purpose of paying complainant and other holders of the same class of warrants, and that the case be referred to a master to state an account. Whereupon the city applied for and obtained a writ of certiorari from this court. Mr. Branch K. Miller for the city of New Orleans. Mr. Samuel M. Gilmore was on his brief. Mr. Wheeler H. Peckham for Warner. Mr. Richard De Gray filed a brief for same. Mr. J. D. Rouse and Mr. William Gra/nt also filed a brief for same. Me. Justice Brown, after making the above Statement of the Case, delivered the opinion of the court. Nineteen assignments of error were filed in this case, but we shall only notice such as were pressed upon our attention in the oral arguments or in the briefs of counsel. 1. That this suit was, at the institution thereof, prescribed by the statutes of Louisiana. In this connection reference is made to Articles 3540, 3544 and 3547 of the Civil Code. Article 3540 provides that “actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by five years,” etc. Even though it could be assumed in this case that this bill was an “ action on ” these drainage warrants, we think they do not fall within the description of either of the instruments specified in Article 3540. These warrants are in the form of an order, drawn by the Administrator of Accounts upon the Aministrator of Finance, directing him to pay to the order of W. Van Norden, transferee of the Mississippi and Mexican Gulf Ship Canal Company, a certain amount “ out of any funds in the city treasury to the credit of said company.” They also contain the following memorandum: “ This warrant is issued in accordance with the provisions of Act 30 of the session of the General Assembly of the State of Louisiana, held in the year 128 OCTOBER TERM, 1899. Opinion of the Court. 1871, and the Administrator of Finance, on presentation to him of this warrant, will pay the same in cash, in case there be any funds in the city treasury to the credit of the said Mississippi and Mexican Gulf Ship Canal Company; but should there not be sufficient funds to cash this warrant then the Administrator of Finance is required to indorse upon the same the date of its presentation, and this warrant shall bear interest at the rate of eight per cent per annum from and after the date of such presentation and indorsement until paid.” This instrument is neither a bill of exchange, a promissory note, a note payable to order or bearer, nor an effect negotiable by indorsement or delivery. The construction given to Article 3540 by the Supreme Court of Louisiana confines it to unconditional promises to pay a fixed sum of money on a day certain, whether the obligation be negotiable under the law merchant or not. Conditional obligations which lack these essential characteristics do not come within its provisions. Baird v. Livingston, 1 Rob. (La.) 182; Bank of Louisiana v. Williams, 21 La. Ann. 121; Thompson v. Simmons, 22 La. Ann. 450; Jouett n. Erwin, 9 La. Ann. 231; Gasquet v. Directors, 45 La. Ann. 342; King Iron Bridge Co. v. Otoe County, 124 U. S. 459. As these warrants were not only payable out of a particular fund to the credit of the Canal Company, but were only payable when there were funds to the credit of such company, we think it entirely clear that they are not included within the terms of Article 3540. We are also referred to Article 3544, prescribing, “ingeneral, all personal actions, except those before enumerated,” by ten years, and to Article 3547, which enacts that “ all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgments. Provided, however, that any party interested in any judgment may have the same revived at any time before it is prescribed,” etc., in which case it “ shall continue in full force for ten years from the date of the order of court reviving the same.” This latter article is NEW ORLEANS v. WARNER. 129 Opinion of the Court. supposed to be applicable to the homologation of the several assessment rolls against the city as well as against private parties, which, under the act of March 1, 1861, were declared to be judgments against the property assessed and the owners thereof, upon which execution might issue in the ordinary mode of proceeding. These homologations or judgments were rendered at the suit of the commissioners of the drainage district, or the city itself, at various times from 1861 to 1875. But we think a decisive answer to the argument upon both these articles is found in the contract of June 7, 1876, wherein the city purchased of Van Norden the drainage plant, and contracted “ not to obstruct or impede, but, on the contrary, to facilitate, by all lawful means, the collection of the drainage assessments as provided by law until said warrants have been fully paid, it being well understood and agreed by said parties thereto that collections of drainage assessments shall not be diverted from the liquidation of said warrants and expenses as hereinabove provided for, under any pretext whatsoever, until full and final payment of the same.” In respect to this we adhere to the opinion pronounced by us when this case was first before this court, that the city in respect to this purchase acted voluntarily; that it was not, as had been held, in the former case of Pealie v. New Orleans, 139 U. S. 342, with respect to other warrants, a compulsory trustee, but a voluntary contractor; that as the fund was to be partly created by the performance by the city of a statutory duty, it could not deliberately abandon that duty, or take active steps to prevent the further creation of the fund, and then plead a prior issue of bonds as a reason for evading liability upon the warrants. As the city had paid for the property m warrants drawn upon a particular fund, it was under an implied obligation to do whatever was reasonable and fair to make that fund good. Certainly it could not so act as to prevent the fund being made good, and then require the vendor to look to the fund and not to itself. The duty of the city to collect these assessments was affirmed in State ex rel. Van Norden v. The Mayor etc., 27 La, Ann, 497. See VOL. CLXXV—9 130 OCTOBER TERM, 1899. Opinion of the Court. also Cumming v. The Mayor, 11 Paige, 596; Atchison v. Byrnes, 22 Kansas, 65. Having thus voluntarily assumed the obligations of a trustee with respect to this fund, it cannot now set up the statute of limitations against an obligation, which, as such trustee, it had undertaken and failed to perform. The rule is well settled that in actions by cestuis qui trust against an express trustee, the statute of limitations has no application, and no length of time is a bar. While that relation continues, and until a distinct repudiation of the trust by the trustee, the possession of one is the possession of the other, and there is no adverse relation between them. Perry on Trusts, § 863. In Oli/ver v. Piatt, 3 How. 333, 411, it is said that “ the mere lapse of time constitutes of itself no bar to the enforcement of a subsisting trust; and time begins to run against a trust only from the time when it is openly disavowed by the trustee, who insists upon an adverse right and interest, which is fully and unequivocally made known to the cestui que trust” To set the statute in motion the relation of the parties must be hostile, and so long as their interests are common, or their relations fiduciary, as in the case of landlord and tenant, guardian and ward, vendor and vendee, tenants in common, or trustee and cestuis qui trust, the statute does not begin to run. Zeller’s Lessee v. Eckert, 4 How. 289; Seymour v. Freer, 8 Wall. 202; Lewis v. Hawkins, 23 Wall. 119. This doctrine has been applied in Louisiana in favor of an administratrix having claims against the estate, in which it is held that, as she cannot sue the estate, the statute will not run against her on her claims against the estate, so long as she is administratrix. Succession of Farmer, 32 La. Ann. 1037; McEnight v. Calhoun, 36 La. Ann. 408. A like ruling was made with respect to taxes levied for a particular purpose, as to which the city was held to be a trustee, in School Directors v. Shreveport, 47 La. Ann. 1310. This trust has never been repudiated by the city. In fact, one of the defences set up in the answer was that the city had applied itself with great diligence, and to the full extent of its ability, to improve and make serviceable the drainage work NEW ORLEANS v. WARNER. 131 Opinion of the Court. and to proceed with the collection of drainage taxes, and did all in its power to prosecute the collection of the same, extending the drainage work on its regular tax bills, which were asserted and claimed in every account filed in the courts by administrators, executors, syndics and. other persons exercising like authority. By these modes and others, collections were made and accounted for. Indeed, the whole gist of the answer is that the city has executed its trust faithfully, so far as it was possible to do so, by collecting assessments against private persons, but has not accounted for taxes assessed against itself, because it is not legally responsible therefor. There is no claim throughout the answer that the city disavowed the trust. At the time the assessment rolls were homologated and the judgments against the city were rendered, there was no claim made that the city was not responsible, or that the public grounds, streets and squares were not assessable for these improvements ; and in so far as the collection of these judgments is concerned, the city stood in the same relation of trustee to the warrant holders which it did with respect to the assessments upon private property. The argument that the city repudiated its trust by the abandonment of the work of drainage in 1876, is untenable. Indeed, by the very act of February 24, 1876, under which the city was authorized to purchase the Canal Company’s plant, the city was given exclusive control of all the rights, powers and franchises formerly invested in the Canal Company, and authorized to do all the drainage work required to be paid for by assessments upon property, or from the city treasury. What was this purchase made for if not to continue the drainage work? It can scarcely be supposed that the city purchased this plant with a view of discontinuing such work. If it were abandoned at that time it might readily be supposed that such abandonment was temporary, and that the purchase was made in good faith, and for the purpose for which it should have been purchased, namely, the prosecution of tho work. We deem it entirely immaterial whether the assessments 132 OCTOBER TERM, 1899. Opinion of the Court. against the city for the drainage of public property were reduced to judgments or not. When put in this form they were none the less obligations of the city — debts which it owed to the drainage fund—was bound to treat as assets collected, and such as were held by it as trustee for the benefit of the warrant holders. Perry on Trusts, § 440 ; Stevens v. Gaylord, 11 Mass. 256 ; Sigourney v. Wetherell, 6 Met. (Mass.) 553, 557; Leland v. Felton, 1 Allen, 531, 533. The debts of private owners it agreed to use due diligence to collect, and as to these it was a trustee. Its own debts it was bound to pay, and as to these it was equally a trustee. By reducing its own claim to judgment it neither ceased to be debtor nor trustee. 2. A defence of res adjudicata, not.noticed by the court below, is set up as arising from the decree of the Circuit Court, affirmed by this court in the case of Peake v. New Orleans, 139 U. S. 342. This plea is based upon the fact that in that case one James Jackson appeared by intervening petition as the holder of eight purchase warrants, identical in character with those sued upon by the complainant — part of those given in payment of the purchase price of the drainage plant from the Canal Company and Van Norden; that the decree in the Peake case was a dismissal of complainant’s bill and of all intervening petitions, and that the decree upon the warrants sued upon by Jackson was decisive of the whole series of purchase warrants. It is a sufficient reply to this plea to say that the complainant Warner was neither a party nor a privy to this litigation, and that the decree was binding only upon Peake and such others as actually intervened. Hook v. Payne, 14 Wall. 252. Indeed, the attempt to identify these warrants with those which were made the basis of Jackson’s intervention was evidently an afterthought, as the city in its answer, while setting up the decree in the Peake case, makes no mention "whatever of the intervening petition of Jackson, and relies upon the final decree of this court, 139 IT. S. 342, which turns only upon defences applicable to the Peake claim. But the case so far from being res adjudicata of this is not even a decisive authority. The complainant Peake was a holder of warrants issued to the Mississippi and Mexican Gulf NEW ORLEANS v. WARNER. 133 Opinion of the Court. Ship Canal Company under the act of February 24, 1871, which authorized the Canal Company to undertake the drainage work, required the boards of drainage commissioners to transfer to the Board of Administrators all their assets, and required the latter to collect the drainage assessments and place them to the credit of the Canal Company. This court held that, under this act, the city, though a trustee, was a compulsory trustee and its obligations strictly statutory — such as placed upon the city only a limited responsibility for that which the Board of Administrators might do or omit to do; that it had been denuded by the legislature of all freedom of action; that it had no choice of contractor or price; that neither the property to be taxed nor the means or method of collecting its assessments were intrusted to its discretion, and that by providing an officer for the collection of the assessments it had discharged its duty in that particular. In the intervening petition of Jackson he avers that he is the holder of eight warrants, similar to those described in the bill of Peake, upon which he had obtained judgment; and it is only by looking at the original petition on the law side of the court that it appears that these warrants were issued in favor of Van Norden, transferee of the Ship Canal Company, and that they were indorsed by him. They were evidently treated by this court as standing upon the same footing as the Peake warrants. But however this may be, the whole opinion of this court is based upon the Peake warrants, which, as before said, were not purchase warrants at all, and no allusion is made in that opinion to the Jackson intervention. In the case under consideration the complainant bases his suit upon $6000 of warrants given for the purchase of the drainage plant. The obligations of the city with respect to these are measured, not by the act of 1871, but by the act of February 24, 1876, authorizing such purchase, and by the contract of sale, wherein the city agrees to facilitate by all lawful means the collection of the drainage assessments, and to apply the same to the liquidation of these warrants. In respect to these warrants we held, when this case was first before this court, 167 U. S. 467, 477, that the city acted vol- 134 OCTOBER TERM, 1899. Opinion of the Court. untarily ; that it was not, in reference to these warrants, as it was to those in the Peake case, a compulsory trustee, but a voluntary contractor; and that it could not, when purchasing property and contracting to pay for it out of a particular fund, and issuing warrants therefor payable out of such fund, deliberately abandon that duty, take steps to prevent the further creation of the fund, and plead in defence to a liability on the warrants that it had, prior to the purchase, paid off obligations theretofore created against the fund. For these reasons we hold that there is not only no room for a plea of res adjudicata, but that the Peake case is not to be considered as a controlling authority. 3. The gravamen of the bill is that, after the purchase of the drainage plant, the city became possessed of the sole power of completing the system of drainage, that it became its duty to do so or to establish some other system; but that from the very date of the purchase the city ceased all work, sold some of the boats and machinery purchased, diverted the proceeds of taxes to other purposes than that of the payment of drainage warrants, allowed other boats to rdt and sink, and also permitted the canal dug by the company to fill up with sediment. Further, that the city did nothing to enforce payment and collection of the drainage taxes, but adopted an ordinance advising drainage taxpayers not to pay, whereby, by reason of her conduct in abandoning her system of drainage, the Supreme Court of Louisiana in Davidson v. New Orleans, 34 La. Ann. 170, decided that such taxes could not be enforced and collected. That by this and other means it destroyed the drainage fund, until now the same has become unenforceable and worthless to the holders of the warrants. In this connection the city averred in its answer that it had performed its full duty in relation to the collection of assessments against private property, but admits that the proclamation referred to in the bill advising property owners not to pay drainage assessments was issued by the mayor under authority of an ordinance of the city. It further alleged that the drai nage plans made by the Canal Company were so defective that their completion would have been of no benefit to the property NEW ORLEANS v. WARNER. 135 Opinion of the Court. attempted to be drained; that the work done under them was also defective and of no value, and that for these reasons the city was justified in suspending the further prosecution of the work, which resulted in the decision of the Supreme Court in the case of Davidson v. The City of New Orleans, 34 La. Ann. 170, declaring judgments for drainage assessments void for failure of consideration, and that this decision had become the settled rule of law in the State, rendering further collections impossible; but that, notwithstanding this decision, the city had constantly and at all times endeavored in every way possible to realize the assessments; and the city filed an account showing the collections made in 1871 to June 20, 1891, inclusive, and the disposition thereof, as a sufficient compliance with its duty as trustee. The answer further set up and pleaded that the city had discharged itself from all liability for drainage taxes which it had collected, or ought to have collected, for the benefit of the warrant holders, by the issue and delivery of bonds to the amount of $1,672,105.21 to take up drainage warrants issued under the act of 1871, all of which were used and applied at various times between May 10, 1872, and December 31, 1874, to the redemption of drainage warrants. That the city is estopped to plead the issue of bonds as a discharge of its obligation to the holders of these purchase warrants, was settled upon the prior hearing of this case. Warner v. New Orleans, 167 LT. S. 467, 477. In this connection we said: “ That one who purchases property, contracting to pay for it out of a particular fund, and issues warrants therefor payable out of that fund — a fund yet partially to be created, and created by the performance by him of a statutory duty — cannot deliberately abandon that duty, take active steps to prevent the further creation of the fund, and then, there being nothing in the fund, plead in defence to a liability on the warrants drawn on that fund, that it had prior to the purchase paid off obligations theretofore created against the fund.” Prior to the purchase of the Ship Canal Company’s plant from Van Norden, the legality of these drainage assessments had been affirmed by the Supreme Court of Louisiana. In the matter of the Commissioners of the Nir st Draining District, 136 OCTOBER TERM, 1899. Opinion of the Court. 27 La. Ann. 20. This was a proceeding by the City Board of Commissioners praying for the homologation of certain assessment rolls for drainage taxes, to which opposition was made upon different grounds. The court, however, sustained the assessments, and, in the opinion, remarked that “ the State in ordering the draining, is exercising sovereign power, and can, of course, direct or authorize the work to be done in such way and compensation made on such terms as in its discretion may seem best, restrained only by the fundamental principles upon which the government is to be conducted, and we find nothing in them inhibiting the State from having the means provided for such a work, in the way it is done in the present system of drainage in the city of New Orleans. On this question we see no room for judicial interference with the discretion of the State, and we think the existing laws authorize the collection sought herein to be enforced.” So far then, as the law is concerned, there would seem to have been no doubt of the validity of these assessments, had the city continued the work and lived up to the obligations of its contract with Van Norden. With reference to its alleged neglect in this particular the Court of Appeals found that all the facts averred in the bill had either been admitted by the answer, or abundantly established by evidence. When the city purchased the drainage plant it seems to have been in good condition, and although the work had been about two thirds completed, the city not only abandoned the work but proceeded to disqualify itself from undertaking it. In April, 1878, an ordinance was adopted instructing the Administrator to advertise the dredge boats for sale. Although this does not seem to have been carried out, another ordinance was adopted in July requiring three boats, which were then in bad condition, to be broken up and the material stored. Subsequently, and in April, 1881, the mayor was authorized to issue and did issue a proclamation advising the people not to pay their drainage taxes until the question was decided by the Supreme Court, although the validity of these taxes had been determined in the case above cited. This expected decision was delivered in March, 1882, NEW ORLEANS v. WARNER. 137 Opinion of the Court. in the case of Davidson v. City of New Orleans, 34 La. Ann. 170, in which the court found that, owing to the fact that plaintiff derived no benefit from the contemplated drainage, the abandonment of all drainage work, the disposal of all drainage apparatus, the impotency of the city to resume the enterprise, and the fact that the property assessed was worth but one tenth of the amount claimed, the taxes could not be collected. The prior case was cited, and the decision put upon the ground that “ causes, occurring subsequently to the rendition of judgments, may render their execution illegal and inequitable, and violative of rights not within the contemplation of the court when the judgment was rendered, and not intended to be foreclosed thereby. . . . Here would be a failure of the only possible consideration of such judgments, and it could not be doubted that such failure would furnish just ground to enjoin their execution.” But the court did not hold that the city itself could set up this defence — its own dereliction of duty. We do not appreciate the equity of now permitting the city to set up this decision as an excuse for its failure to collect these assessments, since the decision itself is based upon the fact that the city had been derelict in abandoning the work, and failing to carry out in good faith its contract with Van Norden. The Court of Appeals further found that, so far as the answer attempted to fasten the responsibility for the alleged defects in the drainage plant upon Van Norden, its transferee, as a defence to this action, it was entirely unsupported by the evidence, as counsel for the city very frankly admitted in their argument at the hearing. Under the act of February 24, 1871, authorizing the Ship Canal Company to undertake the work, power was reserved to the City Board of Administrators to designate the location of the canals and levees to be built by the company, subject to certain specifications provided by the act, to build and run all the pumps and drainage machinery necessary to lift the water from the canals into Lake Pontchartrain, and to keep the water in the canals at the proper level for the work of excavation, and at the same time assist the drainage of the adjacent lands. It 138 OCTOBER TERM, 1899. Opinion of the Court. was further made the duty of the City Surveyor to examine the work each month, certify to the Administrators of Accounts the number of cubic yards excavated and the number of yards of levees built, for which warrants were to be drawn upon the Administrators of Finance, and to be paid from the funds to the credit of the Canal Company. In fact, the city by ordinance located these canals, put the matter in charge of the Administrator of Improvements, and, through its officers, exercised supervision over the work. The testimony is that it was done strictly in accordance with the specifications furnished. If, as testified, it was not sufficiently extensive to meet the requirements of the city, or the plant was in any respect defective, such faults were due to the city itself, rather than to the contractors. In this connection the conclusion of the Court of Appeals was that the plan under which the work was done by the Canal Company and its transferee would, if carried out as contemplated, have sufficiently accomplished the drainage of the lands within the several districts to render the assessments available, if the city had kept the work in a serviceable condition, as the law required. Indeed, the fact that the city had abandoned the work, and, so far from facilitating by all lawful means the collection of the drainage assessments as provided by law, not only did nothing in this direction, but advised the taxpayers not to pay such assessments, is really too clear for argument. 4. If the city be not estopped, by consenting to the homologation of the assessment rolls — in other words, consenting to the judgments against itself — to question its liability for the assessments upon its streets, squares and other public places, or by drawing these warrants against the drainage fund, we think the validity of those assessments sufficiently appears from the opinions of the Supreme Court of Louisiana sustaining similar assessments upon public property. The argument is that public property, being exempt from taxation, is also exempt from these assessments; but the authorities have long recognized a distinction between general taxes, which are for the benefit of the public generally, and which in the nature of things the public must directly or indirectly pay, and spe- NEW ORLEANS v. WARNER. 139 Opinion of the Court. cial assessments for the benefit of particular property, which are a charge upon the property benefited. If this be private property, then each owner of such property pays his share; if it be public property, the city pays it as the agent of the entire body of its citizens, who are assumed to have been benefited to that extent. Charnock v. Levee Co., 38 La. Ann. 323. This was apparently the view taken by the Supreme Court of Louisiana in the case of The New Orleans Draining Co., 11 La. Ann. 338, 377, in which it is said of similar assessments that “ the large portion of the expenses which, by this view, is thrown upon the city for the streets, meets in some measure that equity which has been urged upon our consideration, that as this work has been undertaken for the public good, the public ought to bear the charge of it, notwithstanding the benefit of it to the owners of the soil.” In Marquez v. City of New Orleans, 13 La. Ann. 319, property owners upon a certain street refused to pay more than one half of their assessments for paving, upon the ground that the city owned a promenade located in the centre of the street opposite the paved road. It was held that the city should pay one half of the entire cost of paving, upon the ground of its ownership of this public ground. This case was subsequently approved in the similar case of Correjolles v. Succession of Foucher, 26 La. Ann. 362, and in Barber Asphalt Paving Co. v. Gogreve, 41 La. Ann. 251, 259. In the County of McLean v. Bloomington, 106 Illinois, 209, it was also claimed that public property, being expressly exempt from taxes, was also exempt from special assessments. But, said the court, “ we have been too long and too firmly committed to the doctrine that exemption from taxation does not except from special assessments to now admit that it is even debatable. . . . The distinction between taxation and special assessment is also clearly made in our present constitution, and while providing that the General Assembly may exempt the property of the State, counties and municipal corporations from the former, section 3 makes no provision in regard to the latter, but, on the contrary, . . . authorizes the General Assembly to vest the corporate authority of cities, 140 OCTOBER TERM, 1899. Opinion of the Court. towns and villages with power to make local improvements by special assessments without any restriction as to the property to be assessed.” This ruling was followed in Adams County v. Quincy, 130 Illinois, 566; Beach on Pub. Corps. § 1172 The rule is different in Massachusetts, Worcester County n. Worcester, 116 Mass. 193, and perhaps also in Connecticut, State v. Hartford, 50 Conn. 89; but as this is a question of local law, we are bound by the Louisiana cases. There is nothing in the several statutes of Louisiana upon the subject which indicate that private property only was intended to be affected. It is true that by the act of 1858, § 7, the District Court is empowered to decree that each portion of the property situated within the draining limits is subject to a first mortgage, lien and privilege in favor of the Board of Commissioners for such amount as should be assessed upon such property for its proportion of the cost of the draining; and that this was obviously intended not to apply to public property. But while it is doubtless true that public property was not intended to be chargeable with a lien under which it might be sold and title pass to private parties, it by no means follows that the city is not liable, and that in such cases the amount should not be paid out of the treasury. Adams County n. Quincy, 130 Illinois, 566. Indeed, something of this kind seems to have been contemplated in the act of February 24, 1876, § 4, where the city was given the power of doing all the drainage work “ required to be paid for by assessments upon property, or from the city treasury.” This would seem to contemplate that the drainage work applicable to public property was to be paid for by the public out of the municipal treasury. Indeed, it is improbable that, if the cost of draining the streets and public squares was to be included in the proportion which each parcel of private property was to contribute as its share of the expense, no mention was made of this or of the manner in which the liability of each private owner for his proportion of the expense of draining the public property was to be ascertained. That the city was itself liable was evidently the view taken by the city officers when the assessment rolls were homologated. NEW ORLEANS v. WARNER. 141 Opinion of the Court. One thing in this connection is certain. No general system of drainage could be established that did not include streets and public squares as a part of the territory to be drained. Assuming that no provision was made as to how the proportion applicable to public property was to be assessed and paid for, but that elaborate provision was made for the assessment of private property for its proportion of such expense, and for the creation of a lien therefor, enforceable by the courts, what follows? That private property was to be assessed for its contributory portion of a public expense ? Not at all. Private owners may be assumed to be interested in draining their own property, but in the absence of a special provision to that effect there is no presumption that they are also to be called upon to pay that which prima facie belongs to the public. Indeed, in view of a recent decision in Massachusetts, it may well be doubted whether the legislature could impose the cost of draining public property upon private lot owners. Sears n. Street Comrs., 53 N. E. Rep. 876. The expense of keeping streets in order is a public charge, and the same may be said of all other expenses which are for the benefit of the public. It is true that the expense of paving may be assessed upon the adjoining property upon the theory that such property is specially benefited by the improvement, but a special provision is necessary to create such charge. As the Boards of Drainage Commissioners assessed the city for the expense of draining its public property, and the legislature approved all these assessments in the act of February 21,1871, and the city subsequently assented to the homologation of these assessment rolls, except in the first district, and to judgments against itself for the amount of the assessments, it is difficult to see upon what principle it can now after a lapse of more than twenty years raise the question of its liability. We know of no reason why these judgments should not be treated as conclusive. A judgment for taxes does not differ from any other in respect to its conclusiveness. United States v. New Orleans, 98 U. S. 381; Driggers v. Cassady, 71 Alabama, 529,533; Cadmus v. Jackson, 52 Penn. St. 295 ; Freeman on Judgments, § 135; Mayo v. Foley, 40 California, 281; 142 OCTOBER TERM, 1899. Opinion of the Court. Anderson v. Rider, 46 California, 134; Stams v. Hadnot, 42 La. Ann. 366. 5. The only other assignment of error we are required to notice is that the court erred in holding that the constitutional amendment of 1874 (Laws of 1874, page 56, Joint Resolution No. 22), limiting the power of the city of New Orleans to contract debts, was not a complete defence to this suit. This amendment is as follows: “ The city of New Orleans shall not hereafter increase her (its) debt in any manner or form or under any pretext. After the first of January, 1875, no evidence of indebtedness or warrant for the payment of money shall be issued by any officer of said city except against cash actually in the treasury; but this shall not be so construed as to prevent . . . the issue of drainage warrants to the transferee of contract under act No. 30 of 1871, payable only from drainage taxes, and not otherwise.” The argument is that the act of February 24, 1876, authorizing the purchase by the State of the drainage plant and franchise, is null and void, because it had the effect of increasing the debt of the city in violation of the supposed prohibition contained in said constitutional amendment of 1874. At the time this amendment was adopted, the act of February 24,1871, which provides for the drainage of New Orleans, was in force. This act authorized the Ship Canal Company to undertake the drainage of the city under the general direction of the Board of Administrators, and to provide funds for the payment of the work, directed the Boards of Drainage Commissioners to turn over to the Board of Administrators “all moneys, assessments and claims of drainage in their hands,” including all judgments in favor of the commissioners, authorized the Board of Administrators to collect from the holders of property within the draining districts the balance due on the assessments, as shown by the books, “ which said assessments are hereby confirmed and made exigible, at such time and in such manner as the Board of Administrators may designate; provided, that the said board shall collect the said assessments herein authorized in time to NEW ORLEANS v. WARNER. 143 Opinion of the Court. provide for the payment of the warrants to be issued to the said company at the date of their issue,” and place all collections to the credit of the Canal Company for the drainage of the city. The Ship Canal Company, having become embarrassed by the want of funds in the city treasury to pay the drainage warrants, on May 22, 1872, made a contract with Van Norden, by which he agreed to advance to the Canal Company $150,000 to meet the expenses of doing the work, upon condition of being reimbursed out of the warrants and money which might be obtained from the city of New Orleans, and to secure the same the company assigned to him all moneys, profits and benefits that were to be realized by the execution of the work, as well as all certificates and warrants to be received, with authority to collect them. Subsequently, and on November 22, 1872, the company assigned all its property to Van Norden, acknowledging an indebtedness of $161,962.86 for moneys advanced. At the time the constitutional amendment went into effect the work was being carried on by Van Norden under the above contracts with the Ship Canal Company. The assessments, both against the city and individuals, which constitute the debt from which the warrants are to be paid, were all in existence long prior to this amendment, and were reduced to judgments at sundry times from 1861 to 1873. It seems, however, that the city concluded to do this work itself, and applied to the legislature for authority to purchase of Van Norden his drainage plant and to undertake itself to do the drainage work. This authority was granted by the act of February 24, 1876, under which the contract was made with Van Norden to purchase the plant, and to pay therefor the sum of $300,000 in drainage warrants as a consideration for the property, and also in full settlement of all claims for damages which the Canal Company or Van Norden had against the city. To provide for the payment of these warrants the city agreed that the rights of the holders of such warrants should remain unimpaired, and that the drainage taxes should be administered and paid under certain condi-hons, and their collection assigned to an officer to be selected 144 OCTOBER TERM, 1899. Opinion of the Court. by Van Norden, — the city agreeing, as heretofore stated, to put no obstacle in the way of such collections. We think it was the intention of the constitutional amendment to validate the issue of the drainage warrants to the transferee of the contract, not only for the work done but for the property purchased by the city, in case it should elect to do the work itself. The act of 1876 did not so much authorize an increase of the city’s debt as a diversion of the warrants to the purchase of the drainage plant instead of a payment to the transferee for work done. We think the amendment should receive a construction commensurate with the object intended to be accomplished, namely, the drainage of the city, whether such drainage were carried out by Van Norden or by the city itself, and that it should not be limited to such warrants as were to be issued for the work. The debt for the assessments had already been incurred and put in judgment, and the amendment was intended to recognize the existence of such debt, and to provide that the warrants issued in payment of the same should not be treated as within the scope of the amendment. Beyond this, however, these warrants were to be issued not only in payment of the drainage plant but in settlement of Van Norden’s claims against the city for damages connected with the failure of the city to carry out its contract with the Canal Company and Van Norden, which, in view of the fact that the drainage plant had been purchased by him for $50,000, may be assumed to have been the greater part of the consideration. Indeed, it is open to serious consideration whether the reservation of drainage warrants in the constitutional amendment of 1874 was necessary, in view of the fact that the assessments had already been reduced to judgments against the city and the property owners, and that the further issue of drainage warrants was rather in the nature of the payment of a debt already incurred than the creation of a new obligation. There can be no question that the amendment was not designed to impair the validity of a debt already legally incurred, and that if it had attempted that, it would have been hostile to the provision of the Federal Constitution against impairing the obligation of a contract. NEW ORLEANS v. WARNER. 145 Opinion of the Court. 6. It is scarcely necessary to say that the fact that the city chose to pay $300,000 in 1876 for property which Van Norden bought in 1872 from the Ship Canal Company for $50,000, is not one which can be considered here. The act of 1876, authorizing the purchase and the settlement of claims against the city, provided for the appointment of an appraiser to estimate the value of the rights and things to be purchased or settled for. This appraiser was appointed and appraised the dredge boats and machinery at $153,750, being twenty-five per cent less than the original cost. He announced himself as unable to come to a conclusion with reference to the damages claimed. It must be borne in mind that the consideration of $300,000 was fixed upon not only to cover the value of the property of the plant, but the exclusive franchise under the act of 1871, and the claims for damages against the city. It may be that the city made a bad bargain. It may be that it paid far more than the fair value of the property and claims purchased. It may be that the action of the common council was dictated by improper' considerations, though this is rather hinted at than asserted; but from the case of Fletcher v. Peck, 6 Cranch, 87, 130, to the present time we have uniformly refused to inquire into the motives of legislative bodies. In this case Mr. Chief Justice Marshall, speaking for the court, observed: “ That corruption should find its way into the governments of our infant republics, and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would, in any case, be competent, on proceedings instituted by the State itself, to vacate a contract thus formed, and to annul the rights acquired under that contract by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements operating on members of the supreme sovereign power of a State, to the formation of a contract by that power, are exam- VOL. CLXXV—10 146 OCTOBER TERM, 1899. Opinion of the Court. inable in a court of justice. ... If the majority of the legislature be corrupted, it may well be doubted whether it be within the province of the judiciary to control their conduct; and if less than a majority act from impure motives, the principle by which judicial interference would be regulated, is not clearly discerned.” See also Ex parte ELcCardle, 7 Wall. 506, 514; Doyle v. Continental Ins. Co., 94 IT. S. 535; Soon Hing v. Crowley, 113 IT. S. 703; United States v. Old Settlers, 148 U. S. 427, 466 ; United States v. Des Moines Navigation Co., 142 IT. S. 510, 543. This is also the law in Louisiana. Villa-vaso v. Bartket, 39 La. Ann. 247, 258. 7. The objection that the decree finds the city a debtor to the complainant in the amount of the warrants is more apparent than real, since it also declares that he is entitled to be paid out of the drainage assessments, refers it to a master to state an account of such assessments, and provides for an absolute decree against the city only if the fund established by the accounting shall be sufficient, and for &pro rata decree if such fund be not sufficient to pay all the warrant holders in full. There was no error in allowing interest except as to amount. The act of 1876, authorizing the city to purchase the drainage plant, declared that the consideration should be paid in drainage warrants, issued in the same form and manner as those theretofore issued under the act of 1871 for work done. This act of 1871 provided that if there should not be sufficient funds to cash the warrants when issued, the Administrator of Finance was required to indorse upon them the date of presentation, after which such warrants should bear interest at the rate of eight per cent until paid. The warrants also made this provision upon their face. But there was no presentation for payment as the statute and warrants required, and there was no waiver of such presentation. In 1876, it is true, the city abandoned the work, but the whole of complainant’s case rests upon the theory that there was no repudiation of the trust, or of the obligation to do whatever was possible in the collection of the assessments. If, then, the trust continued so as to charge the city as trustee, the obligation of the complainant to take NEW OBLEANS v. WABNER. 147 Opinion of the Court. such measures as were necessary to charge the city with interest also continued. But the liability of the city to pay interest was conditioned upon the presentation of the warrants and the indorsement upon them of the date of such presentation. While refusal to indorse the date, upon a proper presentation of the warrants, would not prevent the collection of interest, there must have been a presentation, or something equivalent thereto, before interest would begin to run. If the city had wholly denied the right of complainant, or distinctly refused to perform its obligation, or had wholly disabled itself from complying with its contract, a different question might have arisen, but the mere abandonment of the work was not sufficient to obviate the necessity of a demand. Berard y. Boagni, 30 La. Ann. 1125. But the commencement of suit was a sufficient demand to charge the defendant the interest from that day, Fuller v. Rvbbard, 6 Cowen, 13, 22, at the rate specified in the contract. It is true, the cases of Brewster v. Wakefield, 22 How. 118; Burnhisel v. Firman, 22 Wall. 170, and Holden v. Trust Co., 100 U. S. 72, hold that, where there is a promise to pay upon a certain day with interest at an exorbitant rate, the creditor is only entitled to interest after that time by operation of law and not by any provision in the contract; although if the local law be different, this court will follow it. Cromwell n. Sac County, 96 U. S. 51, 61; Ohio n. Frank, 103 U. S. 697. These very cases, however, recognize the principle that, if the parties themselves have fixed a rate to be paid up to the time of payment, that rate will be respected. In this case both the statute and the warrants provided that such warrants shall bear interest at the rate of eight per cent “ until paid,” and we are therefore of opinion that complainant is entitled to that rate from November 26, 1894, the date of filing the bill and issuing the subpoena. While this opinion does not cover all the assignments of error, it disposes of all questions raised by counsel in their briefs, and Our conclusion is that the decree of the Court of Appeals be modified in respect of the date from which i/nterest is to 148 OCTOBER TERM, 1899. Statement of the Case. be calculated, and as so modified affirmed, with costs of this court equally divided, and that the case be remanded to the Circuit Court for the Eastern District of Louisiana with a direction to comply with the decree of the Court of Appeals as modified, and it is so ordered. Mr. Justice White and Mr. Justice Peckham did not sit in this case and took no part in its decision. BRADY v. DALY. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 52. Argued October 18, 1899. — Decided. November 20, 1899. Section 4966 of the Revised Statutes, enacting that “any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages, therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just,” is not a penal statute and neither provides for the recovery of a penalty nor a forfeiture. This action, being brought to recover damages for the violation of a dramatic copyright, and not being one to recover either a penalty or a forfeiture, the Circuit Court had jurisdiction of it by virtue of Rev. Stat. § 629, Subdivision 9, which confers upon Circuit Courts jurisdiction of all suits at law or in equity arising under the patent or copyright laws of the United States. In the absence of any Federal statute of limitations, an action like this is limited by the limitation existing for the class of actions to which it belongs in the State where it was brought. The question, as an original one, of how far a copyright of a play protects any particular scene therein from being publicly produced or represented by another, aside from the dialogue contained in the play, is not before the court in this case. There was no election of an inconsistent remedy, which would bar the plaintiff from recovering in this action. This was an action at law brought by Augustin Daly, and prosecuted since his death by the executors of his will, for BRADY v. DALY. 149 Statement of the Case. the violation of a dramatic copyright. In 1867 Daly was the owner of a dramatic composition entitled “Under the Gas Light,” and in that year he took out a copyright therefor in the United States. The play was produced by Daly and his licensees, and became quite popular, and he derived considerable profit from its production by himself and from the royalties he received. The chief value of the play and its popularity depended upon an incident in the third scene of the fourth act, commonly described as the railroad scene, where one of the characters is laid helpless upon a railroad track upon which a railroad train is momentarily expected that will run him down and kill him, and just at the last moment another of the characters contrives to reach the intended victim and drag him from the track as the train rushes in and passes over the spot. After the play was produced, Dion Boucicault prepared a play called “ After Dark,” in which he introduced a railroad scene differing but slightly and only colorably from that which appeared in “ Under the Gas Light.” The plaintiff in error, defendant below, without the consent of Daly, produced and procured to be publicly performed on the stage in divers cities the play “ After Dark,” including the railway scene. On the 20th of May, 1889, Daly brought a suit in equity against the plaintiff in error herein in the Circuit Court of the United States for the Southern District of New York, in which he prayed that the defendant might be perpetually enjoined from the further performance of the play “After Dark,” upon the ground that the performance was an infringement of the copyright of his play “ Under the Gas Light,” and he asked for an accounting for all money and profits received by the defendant in that suit by reason of the performance of the play “ After Dark ” and of the railroad scene therein. The complainant moved for a preliminary injunction, which was denied upon the ground that there was a material variance between the registered title and the published title of Under the Gas Light,” and that therefore the complainant had not a valid copyright. Daly v. Brady, 39 Fed. Rep. 265. After the taking of proofs on the issues joined by the defend- 150 OCTOBER TERM, 1899. Statement of the Case. ant’s answer, the Circuit Court, following the decision of the court upon the motion for an injunction, dismissed the bill with costs. Daly v. Webster, 47 Fed. Rep. 903. An appeal was taken by Daly from this decree to the Circuit Court of Appeals, where it was reversed, and the cause remanded with instructions to enter the usual decree for an accounting and a perpetual injunction, the Circuit Court of Appeals holding that the plaintiff’s copyright was valid, and the railroad scene in his play was itself a dramatic composition and protected by the plaintiff’s copyright, which had been infringed by the defendant in the production of the play “ After Dark,” with the railroad scene therein. Daly v. Webster, 1 U. S. App. 573. The only charge of infringement consisted in the production of that scene. Pursuant to the mandate of the Circuit Court of Appeals, a decree for a perpetual injunction was entered by the Circuit Court, November 5, 1892, and it was referred to a master to take proof of the number of unauthorized performances of the play “ After Dark,” with the railroad scene, which had been given by the defendant. The court did not direct the master, either in the decree or in the order of reference, to ascertain anything in regard to profits; no evidence was offered before him upon that subject, and no finding was made thereon. A final decree in the case, accepting the master’s report and making his findings the findings of the court, was entered on April 1, 1893, but no decree for profits was asked or rendered. Another appeal was taken to the Circuit Court of Appeals, and the decree affirmed, with costs, June 7, 1893. 11 IL 8. App. 791. The mandate of the Circuit Court of Appeals on this second appeal was filed in the Circuit Court, June 14, 1893, and a decree in conformity therewith duly entered. The defendant attempted to obtain a review of the judgment against him by appealing to this court, but his appeal was dismissed for tho reasons stated in Webster v. Daly, 163 U. S. 155. The present action wTas commenced July 14, 1893, by Daly against Brady, the plaintiff in error herein, in the United BRADY v. DALY. 151 Statement of the Case. States Circuit Court for the Southern District of New York, to recover damages for the violation of his copyright, placing their amount at $13,700. The complaint contained two counts, the first making no reference to section 4966 of the Revised Statutes, while the second alleged that the defendant had infringed his copyright in violation of the provisions of that section, and that “ by virtue of the provisions of said act of Congress (the copyright act) and of said section 4966 of the Revised Statutes of the United States, the defendant then and there became liable to pay to said plaintiff the sum of $13,700, lawful money of the U nited States, as damages.” The answer of the defendant denied the infringement and set up various defences which are noticed in the following opinion. A jury trial was waived, and the court found the facts as above stated, and held that the copyright obtained by Daly was good and valid, and covered and protected the railway scene already described; that the acts of the defendant were in disregard of the copyright and of plaintiff’s exclusive rights therein. It was also found by the court that the evidence did not authorize an increase of the damages above the minimum amount provided for by section 4966 of the Revised Statutes, and that it had no power to establish a rule of damages below the minimum amount provided for therein, and that such section should be construed as penal rather than remedial in its character. The only testimony in this action on the hearing before the master as to the number of representations which the defendant Brady had given that were infringements of the plaintiff’s copyright, and upon which a judgment for damages could be based, was the evidence of the defendant in the equity suit above mentioned, and introduced before the master in this action, and such evidence the court decided was inadmissible forthat purpose, upon the ground that evidence obtained from a party by means of judicial proceedings could not be used against him for the enforcement of a penalty; and because of the absence of all legal evidence as to the number of representations the defendant was entitled to judgment, refusing any recovery for damages. 152 OCTOBER TERM, 1899. Opinion of the Court. Subsequently, upon application to the court, the cause was opened and testimony, entirely independent of that of the defendant in the plaintiff’s examination of him in the accounting before the master in the equity suit, was presented as to the number of times the play of “ After Dark ” had been produced by the defendant, with the railroad scene in it, and upon that evidence a finding was made that the plaintiff was entitled to judgment against the defendant of $50 for each performance falling within the period of two years prior to the commencement of the action; that is to say, for 126 performances, or the sum of $6300 with costs. The court restricted the plaintiff’s right to damages to two years because it held that the action was brought to recover a penalty, and that the two years’ statute of limitations applied. The defendant brought the case by writ of error before the Circuit Court of Appeals for the Second Circuit, where the judgment was affirmed, Brady v. Daly, 51 U. S. App. 621, and he then sued out a writ of error from this court, and the case is now here for review. Mr. David Gerber for plaintiff in error. Mr. A. J. Bit-tenhoefer was on his brief. Mr. Stephen H. Olin for defendants in error. Me. Justice Peckham, after stating the facts, delivered the opinion of the court. The first objection made by the plaintiff in error to the judgment in this case is that the Circuit Court had no jurisdiction of the action because it was brought to recover a penalty or forfeiture under section 4966 of the Revised Statutes, and it was contended that the District Courts of the United States have by law exclusive jurisdiction over that class of actions. Whether the District Courts still have exclusive jurisdiction over an action to recover for a forfeiture or a penalty arising from a violation of the copyright act, it is not necessary to BRADY v. DALY. 153 Opinion of the Court. here determine, because we think that section 4966 of the Revised Statutes, upon which this suit is founded, is not a penal statute, and therefore the action in this case is not one to recover either a penalty or a forfeiture, and the Circuit Court had jurisdiction of the action by virtue of section 629 of the Revised Statutes, subdivision 9, which grants jurisdiction to the Circuit Courts “ of all suits at law or in equity arising under the patent or copyright laws of the United States.” Section 4966 of the Revised Statutes reads as follows: “Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just.” The act of August 18, 1856, c. 169, 11 Stat. 138, was the first Federal statute which conferred upon the author or proprietor of any dramatic composition, designed or suited for public representation, “ along with the sole right to print and publish the said composition, the sole right also to act, perform or represent the same, or cause it to be acted, performed or represented on any stage or public place during the whole period for which the copyright is obtained.” The same act further provided that any “manager, actor or other person acting, performing or representing the said composition, without or against the consent of the said author or proprietor, his heirs or assigns, shall be liable for damages to be sued for and recovered by action on the case or other equivalent remedy, with costs of suit in any court of the United States, such damages in all cases to be rated and assessed at such sum not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court having cognizance thereof shall appear to be just.” Section 101, of chapter 230, of the Statutes of July 8, 1870, 16 Stat. 198, 214, reenacted the provision of the act of 1856, 154 OCTOBER TERM, 1899. Opinion of the Court. giving damages to the proprietor of any dramatic composition against any person wrongfully representing the same. Then came the revision of the statutes, and section 4966 embodies the provisions contained in the above mentioned acts of 1856 and 1870, in regard to the recovery of damages. These statutes, it will be perceived, all use the word “ damages” when referring to the wrongful production of a dramatic composition. No word of. forfeiture or penalty is to be found in them on that subject. It is evident that in many cases it would be quite difficult to prove the exact amount of damages which the proprietor of a copyrighted dramatic composition suffered by reason of its unlawful production by another, and yet it is also evident that the statute seeks to provide a remedy for such a wrong and to grant to the proprietor the right to recover the damages which he has sustained therefrom. The idea of the punishment of the wrongdoer is not so much suggested by the language used in the statute as is a desire to provide for the recovery by the proprietor of full compensation from the wrongdoer for the damages such proprietor has sustained from the wrongful act of the latter. In the face of the difficulty of determining the amount of such damage in all cases, the statute provides a minimum sum for a recovery in any case, leaving it open for a larger recovery upon proof of greater damage in those cases where such proof can be made. The statute itself does not speak of punishment or penalties, but refers entirely to damages suffered by the wrongful act. The person wrongfully performing or representing a dramatic composition is, in the words of the statute, “liable for damages therefor.” This means all the damages, that are the direct result of his wrongful act. The further provision in the statute, that those damages shall be at least a certain sum named in the statute itself, does not change the character of the statute and render it a penal instead of a remedial one. The whole recovery is given to the proprietor, and the statute does not provide for a recovery by any other person in case the proprietor himself neglects to sue. It has nothing in the nature BRADY v. DALY. 155 Opinion of the Court. of a qui tam action about it, and we think it provides for the recovery of neither a penalty nor a forfeiture. If, upon the trial of such an action, the court should find from the evidence that the plaintiff had, in fact, sustained a greater amount than the minimum sum of damages provided in the statute, and should direct judgment in his favor for the sum so proved, would that judgment be for a penalty ? On the contrary, it would be. for the actual amount of damages which the evidence showed had been sustained by the plaintiff, and his recovery of that sum would be the recovery provided by the law for the wrong which he had suffered. When the evidence does not warrant a greater than the minimum recovery, the amount named in the statute still constitutes the remedy provided by the law, which plaintiff can pursue. In Huntington v. Attrill, 146 U. S. 657, 667, there is a very full discussion of the meaning of the word “ penal ” when used in reference to the maxim of international law that “The courts of no country execute the penal laws of another.” In the course of the opinion in that case it was stated by Mr. Justice Gray, speaking generally as to what constituted a penal statute, as follows : “ The action of an owner of property against the hundred to recover damages caused by a mob was said by Justices Willes and Buller to be ‘ penal against the hundred, but certainly remedial as to the sufferer.’ Hyde v. Cogan, 2 Doug. 699, 705, 706. A statute giving the right to recover back money lost at gaming, and, if the loser does not sue within a certain time, authorizing a qui tam action to be brought by any other person for threefold the amount, has been held to be remedial as to the loser, though penal as regards the suit by a common informer. Bones v. Booth, 2 W. Bl. 1226; Brandon n. Pate, 2 H. Bl. 308; Grace v. AB Elroy, 1 Allen, 563; Bead v. Stewart, 129 Mass. 407, 410 ; Cole v. Groves, 134 Mass. 471. As said by Mr. Justice Ashhurst in the King’s Bench, and repeated by Mr. Justice Wilde in the Supreme Judicial Court of Massachusetts, ‘ it has been held, in many instances, that where a statute gives accumulative damages to the party grieved, it is not a penal action.’ Woodgate v. 156 OCTOBER TERM, 1899. Opinion of the Court. Knatckbull, 2 T. R. 148, 154; Read n. Chelmsford, 16 Pick. 128, 132. Thus a statute giving to a tenant, ousted without notice, double the yearly value of the premises against the landlord, has been held to be ‘ not like a penal law where a punishment is imposed for a crime,’ but ‘rather as a remedial than a penal law,’ because ‘ the act indeed does give a penalty, but it is to the party grieved.’ Lake v. Smith, 1 Bos. & Pul. (N. R.) 174, 179, 180, 181; Wilkinson v. Colley, 5 Burrow, 2694, 2698. So in an action given by statute to a traveller injured through a defect in a highway, for double damages against the town, it was held unnecessary to aver that the facts constituted an offence, or to conclude against the form of the statute, because, as Chief Justice Shaw said: ‘The action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for neglect or breach of duty operate to a certain extent as punishment, but the distinction is that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages ; but still they are recoverable to his own use, and in form and substance the suit calls for indemnity.’ Reed v. Northfield, 13 Pick. 94, 100, 101.” Where the statute provides in terms, as the one before us does, for a recovery of damages for an act which violates the rights of the plaintiff, and gives the right of action solely to him, the fact that it also provides that such damages shall not be less than a certain sum, and may be more, if proved, does not, as we think, transform it into a penal statute. So a statute which makes a person liable for his wrongful neglect or default by which the death of another person is caused, and which gives a right of action to the administrator for the benefit of the widow and next of kin, to recover damages for the pecuniary injuries resulting from his death, thus altering the common law and imposing a new liability, has been held by this court not to be penal, and to be enforceable in a State other thah the State in which the statute was BRADY v. DALY. 157 Opinion of the Court. passed, and in which the wrongful act and death occurred. Dennick n. Bailroad Company, 103 U. S. 11; Texas & Pacific Bailway n. Cox, 145 U. S. 593; Stewart v. Baltimore Ohio Bailroad, 168 U. S. 445. Although punishment, in a certain and very limited sense, may be the result of the statute before us so far as the wrongdoer is concerned, yet we think it clear such is not its chief purpose, which is the award of damages to the party who had sustained them, and the minimum amount appears to us to have been fixed because of the inherent difficulty of always proving by satisfactory evidence what the amount is which has been actually sustained. The English statute of 3 & 4 William IV, c. 15, entitled, “An act to amend the laws relating to dramatic literary property,” by its second section provides that a person who wrongfully produces and represents a dramatic composition “shall be liable for each and every such representation to the payment of an amount not less than forty shillings, or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be the greater damages, to the author or other proprietor of such production so represented.” c In Chatterton v. Carve, 3 App. Cas. 483, 492, the court in speaking of this provision for damages said that the same “ was no doubt fixed because of the difficulty of proving with definiteness what amount of actual damage had been sustained by perhaps a single performance at a provincial theatre of a work belonging to a plaintiff, whilst at the same time his work might be seriously depreciated if he did not establish his right as against all those who infringed upon it.” This does not look as if that statute were regarded by the English courts as one of a penal nature, but on the contrary as one of a remedial kind providing for the recovery of the damages sustained by the plaintiff, and providing for the recovery of a minimum sum for the reason, as stated by the court, of the difficulty of proving with definiteness in all cases the amount of damages which plaintiff really had suffered. 158 OCTOBER TERM, 1899. Opinion of the Court. The court below was, as is stated in. the opinion, somewhat influenced in its decision of this question by the belief that if this were not a penal statute there was no Federal statute of limitations applicable to it, and said that it could hardly be supposed that it was the intent of Congress to permit such a statutory rate of damages to run without Federal statutory limitation. If there were no such Federal statute, then the state statute would apply. Although not an action to recover a statutory penalty or forfeiture, still, in the absence of any Federal statute of limitations, it would be limited by the limitation existing for the class of actions to which it belongs in the State where the action was brought. Campbell n. Haverhill, 155 U. S. 610, 614. We think the plaintiff in error fails to sustain his first objection to the judgment herein. Another objection made is that section 4966 renders defendant liable only when substantially the whole of a copyrighted play is produced, and not when merely a single incident in one of the acts is represented. In the equity suit between these parties, already referred to, the complainant therein alleged that he had a copyright of the play “ Under the Gas Light,” in which was the railroad scene, which made up the substantial value of the play and the one upon which the profits of the production of the play depended, and that the defendant had infringed upon the complainant’s copyright by producing that same railroad scene in the defendant’s play of “ After Dark.” The answer of the defendant put in issue the existence and validity of complainant’s copyright, denied any infringement whatever, and also raised the question whether there could be any infringement where the only part of plaintiff’s play that was produced was the railroad scene as described. Upon the trial of the issues the complainant succeeded, and obtained a decree which established the validity of his copyright, and determined that the railroad scene in the complainant’s play, apart from the dialogue which accompanied the scene, was a dramatic composition, and entitled to protection under the copyright laws. Daly v. Webster, 1 U S. App- BRADY v. DALY. 159 Opinion of the Court. 573. It determined also that there could be an infringement of the copyright when the only part of plaintiff’s play that was produced was the railroad scene, and that the defendant had in that manner infringed the copyright of the plaintiff. An injunction was decreed and a reference made to the master to ascertain the number of times, etc., that the infringement had occurred. In the opinion of the court, the case of Daly n. Palmer, 6 Blatchford, 256, where the same question arose in regard to the same scene, was referred to and followed. The judgment record in the equity suit was introduced in evidence in this case, and it was conclusive upon the matters which had been in issue in the suit as between these parties, and neither of them can ever again raise such questions between themselves. Southern Pacific Railroad v. United States, 168 IT. S. 1. We have, therefore, the fact conclusively established by that record that this railroad scene was a dramatic composition, protected by the plaintiff’s copyright. The section (4966) of the Revised Statutes covers such a case. Any person publicly performing or representing any dramatic composition protected by copyright, under the circumstances named in that section, is liable for the damages sustained by the proprietor, and as the fact is conclusively established between these parties that the railroad scene is a dramatic composition, and that it is protected by copyright, the statute covers such a case, and makes the plaintiff in error liable for the production of that scene. The question as an original one of how far a copyright of a play protects any particular scene therein from being publicly produced or represented by another, aside from the dialogue contained in the play, is not before us, because the judgment m the equity suit between these same parties establishes the fact of the copyright, and also that the railroad scene is a dramatic composition protected by that copyright. The plaintiff in error also contends that the trial court erred m admitting in evidence the record in the equity suit as proof of the material allegations of the complaint. It does not appear herein that the record in the equity suit was admitted for the purpose stated. The record was admis- 160 OCTOBER TERM, 1899. Opinion of the Court. sible for the purpose of showing the validity of the copyright, and that the railroad scene was a dramatic composition protected by it. The bill of exceptions herein shows that the record was not used for the purpose of proving the number of times the play of “ After Dark ” had been represented containing the railroad scene, nor in any way to show the amount of damages which the plaintiff had sustained by reason of the defendant’s infringement of his copyright. The further objection, that the answer of the defendant in the equity suit was inadmissible for the purpose of proving any admission of the defendant therein which might tend to render him liable for a penalty or forfeiture, becomes immaterial by our holding that the statute under which this action is brought is remedial and not penal. It appears, however, in this record that, although the answer was received as a part of the whole record in the case between these parties in the equity suit, it was not, nor was any evidence given by defendant, used upon the final hearing, in any way whatever, for the purpose of showing any admission on his part, but on the contrary, evidence outside and independent of any admission or evidence of the defendant was produced, and it was with reference wholly to such independent evidence that the recovery was granted. There was no error in this procedure. The plaintiff in error further claimed that the plaintiff below, by first proceeding in equity for an injunction, and incidentally for an accounting of profits, made an election to recover profits, which effectually barred him from a recovery of damages under the statute. The equity action was brought to enjoin the defendant from performing the play of “ After Dark ” with the railroad scene in it, taken from the plaintiff’s play “ Under the G-as Light,” and the injunction was asked for on the ground that plaintiff’s injuries could not be accurately ascertained or computed, and compensation for such injury could not be made by damages, and as a portion of the relief complainant asked that the defendant be decreed to render a full and true account of all money and profits received by him. The decree in that case, however, did not direct the master to ascertain anything in BRADY v. DALY. 161 Opinion of the Court. regard to profits, no evidence was offered upon that subject, no finding was made thereon, and upon the coming in of the master’s report no final judgment or decree for profits was ever asked or rendered. In view of these facts, we think there was no election of an inconsistent remedy by the plaintiff in the action which would bar him from the maintenance of this action for the recovery of damages under the section of the Revised Statutes before referred to. Conceding that he might in the equity suit have recovered profits if there had been an accounting concerning the same, and that a decree for their recovery would be a bar to a proceeding under the statute, yet the plaintiff was not bound to take such remedy; and when in fact he did not take it, and there was no accounting for profits in the equity suit, no decree made in regard to them and no recovery had, we see nothing to prevent the plaintiff in this action from recovering under the statute the damages which he has sustained by reason of the infringement of his copyright by the defendant. Other objections were taken by the plaintiff in error upon questions of evidence which do not call for special consideration. They were properly disposed of by the court below. Our ruling in this case, if it had obtained upon the trial, might have permitted a larger recovery than the plaintiff secured, because the statute upon which the action is founded, not being of a penal character, the two years’ statute of limitations to which the plaintiff was limited in his recovery does not apply. But as the plaintiff did not seek to review the correctness of the decision of the trial court, and contented himself with the recovery actually obtained, his executors have now no cause of complaint on that account and they assert none. Upon a full review of the case, we are of opinion that there was no error committed prejudicial to the plaintiff in error, and the judgment is, therefore, Affirmed, vol. clxxv—11 162 OCTOBER TERM, 1899. Statement of the Case. SIMMS v. SIMMS. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA. No. 16. Submitted October 10,1899. —Decided November 20, 1899. No appeal lies to this court from a decree of the Supreme Court of a Territory granting or refusing a divorce. From a decree of the Supreme Court of a Territory, dismissing the suit of a husband for a divorce, and awarding to the wife alimony and counsel fees, amounting in all to more than the sum of $5000, an appeal lies to this court so far as regards the sum of money. The disclaimer in Barber v. Barber, 21 How. 582, 584, of “ any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to a divorce a vinculo, or to one from bed and board,” has no application to the jurisdiction of the courts of a Territory, or to the appellate jurisdiction of this court over those courts. The statutes of the Territory of Arizona, authorizing any party, in whose favor a judgment for a sum of money has been rendered in a district court of the Territory, to file in that court, or in the Supreme Court of the Territory on appeal, a remittitur or release of part Of the judgment, are applicable to a wife in whose favor a decree for alimony and counsel fees has been made in a suit brought against her by her husband for a divorce; and such a release by her attorneys of record of part of the sum awarded by the district court, if filed and recorded in the Supreme Court of the Territory, while the case is there pending on appeal, is such a substantial and sufficient compliance with the statute (although the release itself is not attested by the clerk and under his seal) as to make it the duty of the court to give effect to the release. When a party who has recovered judgment, in a district court of a Territory, for a sum of money sufficient to sustain the appellate jurisdiction of this court from the Supreme Court of the Territory, exercises a right given by the territorial statutes of remitting, by a release filed and recorded in that court while the case is there pending on appeal, so much of the judgment as will reduce it below the jurisdictional amount, and that court ignores the release and affirms the judgment of the district court, this court, on appeal by the other party, will modify the judgment of the Supreme Court of the Territory so as to stand as a judgment for the reduced sum, and will affirm the judgment as so modified, without considering the merits of the case. The suit was commenced by a complaint filed October 6, 1894, in a district court of the Territory of Arizona, by a bus- SIMMS v. SIMMS. 163 Statement of the Case. band against his wife for a divorce from the bond of matrimony for the cause of desertion on and ever since December 18, 1893. The wife’s answer denied the desertion alleged, and set up desertion by the husband on and ever since December 14, 1893, as well as cruelty on his part. The Revised Statutes of 1887 of the Territory of Arizona, tit. 34, c. 4, vest the jurisdiction of suits for divorce in the district courts of the Territory; and the only provisions thereof touching alimony, counsel fees or costs, are copied in the margin.1 Pending this suit, the wife, by her counsel, moved the court to order the husband to pay her the sum of $5000 as provisional alimony to enable her to employ counsel and defend the suit. The court made no order on the motion until its final decision of the cause upon its merits; and then, on a review of the whole evidence, (which had been taken by a referee and made part of the record,) held that the suit could not be maintained, overruled a motion for a new trial, allowed a bill of exceptions, and by a decree entered June 13, 1896, adjudged that the complaint be dismissed and the issues therein decided in favor of the defendant, and that she recover $750 counsel fees, and $150 a month for her maintenance from December 14, 1893, amounting in all to the sum of $5250, exclusive of costs. On June 30,1896, the husband appealed to the Supreme Court of the Territory, and gave bond to prosecute his appeal. 1 “ 2114. The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest him or herself of the title to separate property.” “ 2120. If the wife, whether complainant or defendant, has not a sufficient income for her maintenance during the pendency of the suit for a divorce, the judge may, either in term time or in vacation, after due notice, allow er a sum for her support in proportion to the means of the husband, until a decree shall be made in the case.” 2122. The court may award costs to the party in whose behalf the sen-ence or decree shall pass, or that each party shall pay his or her own costs, us to the court shall appear reasonable.” 164 OCTOBER TERM, 1899. Statement of the Case. The record of the Supreme Court of Arizona (a copy of which, duly certified by its clerk, was transmitted to this court) stated that on the 11th and 13th days of January, 1897, respectively, each described as “being one of the judicial days of the January term, 1897, of the Supreme Court of Arizona,” orders were made fixing the times of filing briefs. The record then stated that “ on the 26th day of January, 1897, a release of part of the judgment of the lower court for alimony was filed in said court in said cause by said appellee,” and set forth a copy thereof, by which it appeared to have been signed by her attorneys of record, with no other attestation than this -blank form: “ Attest,--------------, Clerk of the Supreme Court of Arizona.” And the release was indorsed by the clerk as filed on that day. By the release so filed and recorded, the wife “ remits, from the judgment for alimony and counsel fees recovered by the said defendant and appellee against the plaintiff and appellant herein in this cause in the district court, all of the said judgment for alimony and counsel fees in excess of the sum of $5000, to wit, the sum of $250.” The provisions of the Revised Statutes of Arizona of 1887, on the subject of the right of a party to remit part of the sum awarded by verdict or judgment, are copied in the margin.1 1 “ 817. Any party in whose favor a verdict or judgment has been rendered [in the district court] may in open court remit any part of such verdict or judgment, and such remitter shall be noted on the docket and entered in the minutes, and execution shall thereafter issue for the balance only of such judgment after deducting the amount remitted. “ 818. Any party may make such remitter in vacation, by executing and filing with the clerk a release in writing, signed by him or his attorney of record, and attested by the clerk with the seal of his office; such release shall constitute a part of the record of the cause, and any execution thereafter issued shall be for the balance only of the judgment after deducting the amount remitted.” “ 822. A remitter” “ made as provided in any of the preceding sections shall, from the making thereof, cure any error in the verdict or judgment by reason of such excess.” “ 945. If in any judgment rendered in the district court there shall be an excess of damages rendered, and, before the plaintiff has entered a release of the same in such court in the manner provided by law, such judgment shall be removed to the Supreme Court, it shall be lawful for the party in whose favor such excess of damages has been rendered to make such re- SIMMS v. SIMMS. 165 Opinion of the Court. On January 30, 1897, the case was submitted on briefs to the Supreme Court of the Territory; and on February 23, 1897, that court affirmed the judgment of the district court for $5250. The husband took an appeal to this court, which has been prosecuted by his executors since his death; and the whole case was submitted to this court on briefs. The appellee moved to dismiss the appeal for want of jurisdiction, “ because the judgment or decree, from which said appeal purports to have been taken, is the judgment or decree of the Supreme Court of one of the Territories of the United States, to wit, the Supreme Court of the Territory of Arizona, affirming a judgment or decree of a district court of said Territory, dismissing a bill for divorce brought by said appellant against said appellee in said district court, and awarding appellee alimony and counsel fees pendente Ute ; and for the further reason that the matter in dispute does not exceed the sum of five thousand dollars, exclusive of costs.” Mr. L. E. Payson for appellants. Mr. W. II. Barnes for appellee. Mr. Justice Gray, after stating the case as above, delivered the opinion of the court. The motion to dismiss this appeal for want of jurisdiction is made upon two grounds? 1st. That the decree appealed from is a decree dismissing a suit for divorce, and awarding to the appellee alimony and counsel fees pending that suit. 2d. That the matter in dispute does not exceed the sum of five thousand dollars, exclusive of costs. The Revised Statutes of the United States conferred on this court jurisdiction, upon writ of error or appeal, to review and lease in the Supreme Court in the same manner as such release is required to be made in the district court; and, upon such release being filed in said Supreme Court, the said court, after revising said judgment, shall proceed to give such judgment as the court below ought to have given if the release had been made and filed therein.” 166 OCTOBER TERM, 1899. Opinion of the Court. reverse or affirm the final judgments and decrees of the Supreme Courts of any Territory except Washington, “ in cases where the value of the matter in dispute,” (or as elsewhere described, “ where the value of the property or the amount in controversy,”) “ to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars,” and, in the Territory of Washington, two thousand dollars ; and also in all cases in any Territory, arising under the Constitution and laws of the United States, or in which the Constitution or a statute or treaty of the United States is brought in question; and in all cases upon writs of habeas corpus involving the question of personal freedom. Rev. Stat. §§ 702, 1909-1911. By the act of March 3,1885, c. 355, except in cases in which is involved the validity of a patent or a copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, “ no appeal or writ of error shall hereafter be allowed from any judgment or decree, in any suit at law or in equity, in the Supreme Court of the District of Columbia, or in the Supreme Court of any of the Territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars.” 23 Stat. 443. This act has not repealed the provision of the Revised Statutes giving an appeal from the Supreme Court of a Territory in cases of habeas corpus. Gonzales v. Cunningham, 164 U. S. 612. The act of March 3, 1891, c. 517, transferring to the Circuit Courts of Appeals the appellate jurisdiction from the Supreme Courts of the Territories in cases founded on diversity of citizenship, or arising under the patent, revenue or criminal laws, or in admiralty, has not otherwise affected the appellate jurisdiction of this court from the territorial courts. 26 Stat. 828, 830; Shute v. Keyser, 149 U. S. 649; Aztec Mining Co. v. Ripley, 151 U. S. 79. Under the existing acts of Congress, therefore, (except in the cases so transferred to the Circuit Courts of Appeals, and in cases of habeas corpus, cases involving the validity of a copyright, and cases depending upon the Constitution or a statute or treaty of the United States — none of which classes SIMMS v. SIMMS. 167 Opinion of the Court. includes the case at bar) the appellate jurisdiction of this court to review and reverse or affirm the final judgments and decrees of the Supreme Court of a Territory includes those cases, and those cases only, at law or in equity, in which “ the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars.” In order to sustain the appellate jurisdiction of this court, under such an enactment, the matter in dispute must have been money, or something the value of which can be estimated in money. Kurtz v. Moffitt, 115 U. S. 487, 495, 496, and cases there cited; Durham v. Seymour, 161 U. S. 235; Perrine v. Slack, 164 U. S. 452. In support of the motion to dismiss this appeal because the decree below concerned divorce and alimony only, the appellee relied on Barber v. Barber, 21 How. 582. In that case, a » majority of this court held that a wife who had obtained against her husband, in the courts of the State of their domicil, a decree, divorcing them from bed and board and awarding alimony to her, might sue the husband for such alimony in a Circuit Court of the United States held in a State in which he had since become domiciled. Mr. Justice Wayne, in delivering judgment, said: “ We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery, or as an incident to a divorce a vinculo, or to one from bed and board.” 21 How. 584. And from that proposition there was no dissent. It may therefore be assumed as indubitable that the Circuit Courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony, whether made in a suit for divorce, or by an original proceeding in equity, before a decree for such alimony in a state court. Within the States of the Union, the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the State, and not to the laws of the United States. In re Burrus, 136 U. S. 586, 593, 594. But those considerations have no application to the jurisdiction of the courts of a Territory, or to the appellate juris- 168 OCTOBER TERM, 1899. Opinion of the Court. diction of this court over those courts. In the Territories of the United States, Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legislative power over all subjects upon which the legislature of a State might legislate within the State; and may, at its discretion, intrust that power to the legislative assembly of a Territory. Shively v. Bowlby^ 152 U. S. 1, 48, and cases cited; Utter n. Franklin^ 172 U. S. 416, 423. In the exercise of this power, Congress has enacted that (with certain restrictions not affecting this case) “ the legislative power of every Territory shall extend to all rightful subjects of legislation, not inconsistent with the Constitution and laws of the United States.” Rev. Stat. § 1851; Act of July 30, 1886, c. 818; 24 Stat. 170. The power so conferred upon a territorial assembly covers the domestic relations, the settlement of estates, and all other matters which, within the limits of a State, are regulated by the laws of the State only. Cope n. Cope, 137 U. S. 682, 684. By the territorial statutes of Arizona, the original jurisdiction of suits for divorce is vested in the district courts of the Territory; and their final judgments in such suits, as in other civil cases, may be reviewed by the Supreme Court of the Territory on writ of error or appeal. Arizona Rev. Stat, of 1887, tit. 34, c. 4; tit. 15, c. 20. As already observed, the motion to dismiss, in the case at bar, is made upon the twofold ground that the decree appealed from is one concerning divorce and alimony only, and that it is for no more than $5000. The decree of the Supreme Court of the Territory in favor of the wife includes the dismissal of the husband’s suit for a divorce from the bond of matrimony, and the award to the wife, upon her motion, of the sum of $5250 for alimony and counsel fees. So far as the question of divorce was concerned, the matter in controversy was the continuance or the dissolution of the status or relation of marriage between the parties, and the decree cannot be reviewed on this appeal; both because that was a matter the value of which could not be estimated m SIMMS v. SIMMS. 169 Opinion of the Court. money; and because the refusal of the divorce involved no matter of law, but mere questions of fact, depending on the evidence, and which this court is not authorized to reexamine. Young n. Amy, 171 U. S. 179. The decree for alimony and counsel fees, although in one sense an incident to the suit for divorce, is a distinct and severable final judgment in favor of the defendant for a sum of money of a sufficient jurisdictional amount, and is therefore good ground of appeal, for the same reason that a judgment for or against the defendant upon a counter claim of like amount would support the appellate jurisdiction. Dushane n. Benedict, 120 U. S. 630, 636; Stuart v. Boulware, 133 U. S. 78; Block n. Darling, 140 U. S. 234. It was argued for the appellee that the decree of the Supreme Court of the Territory in her favor for alimony and counsel fees was not really for more than the sum of $5000, because before that decree was rendered, or the case submitted to that court, she had filed a remittitur of the excess above that sum. But its final judgment, as actually entered, having been for the sum of $5250, the question whether the remittitur was erroneously disregarded touched the question what that court should have done, and not what it actually did; in other words, a question of error, and not of jurisdiction. Had there been no local statute on the subject of remittitur, it would have been within the discretion of the court, before rendering judgment, to allow a remittitur reducing the sum recovered below the amount required to sustain an appeal; and, if the court had done so, and had rendered judgment for the reduced sum, the appeal must have been dismissed. Alabama Ins. Co. v. Nichols, 109 U. S. 232; Pacific Telegraph Co. v. O'Connor, 128 U. S. 394; Texas de Pacific Bailway v. Porn, 151 U. S. 110. The making of a remittitur, in this case, did not depend upon the discretion of the court, but was authorized and regulated by the statutes of the Territory. While the right of appeal to this court from the courts of the Territory is governed by the acts of Congress, the proceedings in the territorial courts at e regulated by the territorial statutes. 170 OCTOBER TERM, 1890. Opinion of the Court. The Revised Statutes of the Territory of Arizona contain full and explicit provisions upon this subject, which have been set forth in the statement prefixed to this opinion. They begin by providing that “ any party in whose favor a judgment has been rendered ” in the district court “ may in open court remit any part of such judgment, and such remitter shall be noted on the docket and entered in the minutes.” This provision clearly includes any party, whether plaintiff or defendant, in whose favor a judgment for a sum of money has been rendered; and it is applicable to the case of a wife who has recovered a judgment for alimony and counsel fees. The provision of the next section is equally comprehensive, by which “ any party may make such remitter in vacation, by executing and. filing with the clerk a release in writing, signed by him or his attorney of record, and attested by the clerk with the seal of his office,” and “such release shall constitute a part of the record of the cause.” In whichever of those two ways the remittitur is made, it is provided that “any execution thereafter issued shall be for the balance only of the judgment after deducting the amount remitted,” and that “the remitter shall, from the making thereof, cure any error in the judgment by reason of such excess.” Those statutes, in a subsequent section, provide that “if in any judgment rendered in the district court there shall be an excess of damages rendered, and, before the plaintiff has entered a release of the same in such court in the manner provided by law, such judgment shall be removed to the Supreme Court, it shall be lawful for the party in whose favor such excess of damages has been rendered to make such release in the Supreme Court in the same manner as such release is required to be made in the district court.” This section again, construed together with the earlier sections, clearly authorizes either party, whether plaintiff or defendant, in whose favor a judgment for a sum of money has been rendered in the district court, and who has made no remittitur or release of part thereof in that court, to make the same in the Supreme Court of the Territory. The section concludes by enacting that, “ upon such release Hi SIMMS v. SIMMS. 171 Opinion of the Court. being filed in said Supreme Court, the said court, after revising said judgment, shall proceed to give such judgment as the court below ought to have given if the release had been made and filed therein.” The only departure from the provisions of these statutes in the case at bar, as appearing by the record transmitted to this court, is that the clerk’s attestation upon the defendant’s release or remittitur was a blank form without the clerk’s signature or the seal of his office. But the appellant in his brief, while contending in general terms that the course prescribed by the statute had not been pursued, made no specific objection to the proceedings except that the right to remit was given to the plaintiff only. And in the material parts of the record, as set forth in the brief of the appellee, the attestation to the release appears to have been signed by the clerk and under seal. It is possible that the signature and seal may have been inadvertently omitted in the record transmitted to this court. But, however that may have been, the attestation of a release filed in vacation, like the noting on the docket and entry in the minutes of a remittitur made in open court, was an act to be done by the clerk, and not by the party; its sole object in either case was to verify the act of the party; and when, as in this case, the release was executed by the party’s attorneys of record, and was both filed and recorded in the Supreme Court of the Territory, while the case was pending in that court, we are of opinion that the statute was so substantially and sufficiently complied with as to render the release of part of the judgment below valid, and to make it the duty of that court to give effect to the release, and, according to the express terms of the statute, “ after revising said judgment,” to “ proceed to give such judgment as the court below ought to have given if the release had been made and filed therein.” If that court had duly given effect to the release, and had rendered in other respects the same decree that it has rendered, the case would not have been appealable. This case ls appealable because, and solely because, the’ decree rendered by that court is for a sum of more than $5000. If this court 172 OCTOBER TERM, 1899. Syllabus. were to dismiss the appeal, it could not modify the decree appealed from, and the appellee would retain a decree, not only for $5000, but also for $250 more, which she had legally remitted and released before that decree was rendered. If this court were to reexamine the merits of the case, the appellant would have the full benefit of an appeal which he could not have taken at all, had that court acted rightly in a matter wholly independent of those merits. The just and appropriate way of disposing of the case appears to this court to be to affirm the validity of the release or remittitur which the Supreme Court of the Territory erroneously ignored, to leave the case as if that court had performed its duty in this regard, and, without considering whether there was any other error in the decree for alimony and counsel fees, to order that the Decree of the Supreme Court of the Territory of Arizona for $5250 be modified so as to stand as a decree for $5000, and, as so modified, affirmed, with costs. Mr. Justice White and Mr. Justice Peckham dissented. BROWN v. NEW JERSEY. ERROR TO THE COURT OF OYER AND TERMINER OF HUDSON COUNTY, STATE OF NEW JERSEY. No. 290. Argued October 30,1899. — Decided November 20,1899. Sections 75 and 76, of Chapter 237 of the Laws of New Jersey of 1898, contained the following provisions: “Sec. 75. The Supreme Court, Court of Oyer and Terminer and Court of Quarter Sessions, respectively, or any judge thereof, may on motion in behalf of the State, or defendant in any indictment, order a jury to be struck for the trial thereof, and upon making said order the jury shall be struck, served and returned in the same manner as in case of struck juries ordered in the trial of civil causes, except as herein otherwise provided.” “ Sec. 76. When a rule for a struck jury shall ba entered in any criminal case, the court granting such rule may, on motion of the prosecutor, or of the defendant, or on its own motion, select from the persons qualified to serve as jurors in and BROWN v. NEW JERSEY. Statement of the Case. 173 for the county in which any indictment was found, whether the names of such persons appear on the sheriff’s book of persons qualified to serve as jurors in and for such county or not, ninety-six names, with their places of abode, from which the prosecutor and the defendant shall each strike twenty-four names in the usual way, and the. remaining forty-eight names shall be placed by the sheriff in the box in the presence of the court, and from the names so placed in the box the jury shall be drawn in the usual way.” By sections 80 and 81 it was provided that where there is no struck jury, and the party is on trial for murder, he is entitled to twenty peremptory challenges, and the State to twelve; but in the case of a “struck jury” each party is allowed only five peremptory challenges: Held, (1) That these provisions are not in conflict with the Constitution of the United States; (2) That the highest court of the State of New Jersey having held that they are not in conflict with the constitution of that State, this court is foreclosed on that question by that decision. The plaintiff in error was, on October 5, 1898, in the Court of Oyer and Terminer of Hudson County, New Jersey, found guilty of the crime of murder. On March 6, 1899, the judgment of the Court of Oyer and Terminer was affirmed by the New Jersey Court of Errors and Appeals, and the case being remanded to the trial court, plaintiff in error was, on April 19, 1899, sentenced to be hanged. The jury which tried the case was what is known to the New Jersey statutes as a “ struck jury,” authority for which is found in c. 237, Laws of New Jersey, 1898, p. 894. Sections 75 and 76 read as follows: “Sec. 75. The Supreme Court, Court of Oyer and Terminer and Court of Quarter Sessions, respectively, or any judge thereof, may, on motion in behalf of the State, or defendant in any indictment, order a jury to be struck for the trial thereof, and upon making said order the jury shall be struck, served and returned in the same manner as in case of struck juries ordered in the trial of civil causes, except as herein otherwise provided. Sec. 76. When a rule for a struck jury shall be entered in any criminal case, the court granting such rule may, on motion of the prosecutor, or of the defendant, or on its own motion, select from the persons qualified to serve as jurors in and for 174: OCTOBER TERM, 1899. Opinion of the Court. the county in which any indictment was found, whether the names of such persons appear on the sheriff’s book of persons qualified to serve as jurors in and for such county or not, ninety-six names, with their places of abode, from which the prosecutor and the defendant shall each strike twenty-four names in the usual way, and the remaining forty-eight names shall be placed by the sheriff in the box, in the presence of the court, and from the names so placed in the box the jury shall be drawn in the usual way.” By sections 80 and 81 of that statute, where there is no “struck jury” and the party is on trial for murder, he is entitled to twenty peremptory challenges and the State to twelve, but in the case of a “ struck jury ” each party is allowed only five peremptory challenges. JZr. William D. Daly for plaintiff in error. Mr. Joseph IT. Noonan was with him on the brief. Mr. James S. Erwin for defendant in error. Mb. Justice Brewer, after making the above statement of the case, delivered the opinion of the court. That the statutory provisions for a struck jury are not in conflict with the constitution of New Jersey is for this court foreclosed by the decision of the highest court of the State. Louisiana v. Pilshury, 105 U. S. 278, 294; Hallinger v. Daw, 146 U. S. 314, 319; Forsyth v. Hammond, 166 U. S. 506. The first ten amendments to the Federal Constitution contain no restrictions on the powers of the State, but were intended to operate solely on Federal Government. Barron v. Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410; Twitchell v. Commonwealth, 1 Wall. 321; United States n. Cruikshank, 92 U. S. 542, 552; Spies v. Illinois, 123 U. S. 131; In re Sawyer, 124 U. S. 200, 219; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31; Davis v. Texas, 139 U. 8. 651; McElvaine v. Brush, 142 U. S. 155; Thorington n. Montgomery, 147 U. S. 490; Miller v. Texas, 153 U. S. 535. BROWN v. NEW JERSEY. 175 Opinion of the Court. The State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. Ex parte Reggel, 114 U. S. 642; Iowa Central Railway n. Iowa, 160 U. S. 389; Chicago, Burlington & Quincy Railroad v. Chicago, 166 U. S. 226. “ The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding.” Missouri v. Lewis, 101 U. S. 22, 31. The State is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at the common law. Subject to the limitations heretofore named it may avail itself of the wisdom gathered by the experience of the century to make such changes as may be necessary. For instance, while at the common law an indictment by the grand jury was an essential preliminary to trial for felony, it is within the power of a State to abolish the grand jury entirely and proceed by information. Hurtado v. California, 110 U. S. 516. In providing for a trial by a struck jury, empanelled in accordance with the provisions of the New Jersey statute, no fundamental right of the defendant is trespassed upon. The manner of selection is one calculated to secure an impartial jury, and the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury. “The accused cannot complain if he is still tried by an impartial jury. He can demand nothing more. Northern Pacific Railroad v. Herbert, 116 U. S. 642. The right to challenge is the right to reject, not to select a juror. If from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained.” Hayes v. Missouri, 120 U. S. 68,71. 176 OCTOBER TERM, 1899. Opinion of the Court. Due process and equal protection of the laws are guaranteed by the Fourteenth Amendment, and this amendment operates to restrict the powers of the State, and if trial by a struck jury conflicts with either of these specific provisions it cannot be sustained. A perfectly satisfactory definition of due process may perhaps not be easily stated. In Hurtado v. California, 110 IT. S. 516, 537, Mr. Justice Matthews, after reviewing previous declarations, said: “ It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” In Leeper v. Texas, 139 IT. S. 462,468, Chief Justice Fuller declared “that law in its regular course of administration through courts of justice is due process, and when secured by the law of the State the constitutional requirement is satisfied.” Within any and all definitions trial by a struck jury in the manner prescribed must, when authorized by a statute, valid under the constitution of the State, be adjudged due process. A struck jury was not unknown to the common law, though, as urged by counsel for plaintiff in error, it may never have been resorted to in trials for murder. But if appropriate for and used in criminal trials for certain offences, it could hardly be deemed essentially bad when applied to other offences. It gives the defendant a reasonable opportunity to ascertain the qualifications of proposed jurors, and to protect himself against any supposed prejudices in the mind of any particular individual called as a juror. Whether better or not than any other method, it is certainly a fair and reasonable way of securing an impartial jury, was provided for by the laws of the State, and that is all that due process in this respect requires. It is said that the equal protection of the laws was denied because the defendant was not given the same number of peremptory challenges that be would have had in a trial before an ordinary jury. In the latter case he would have been entitled under the statute to twenty peremptory challenges, but when a struck jury is ordered he. is given only five, BROWN v. NEW JERSEY. 177 Opinion of the Court. But that a State may make different arrangements for trials under different circumstances of even the same class of offences, has been already settled by this court. Thus, in Missouri n. Lewis, 101 U. S. 22, in certain parts of the State an appeal was given from a final judgment of a trial court to the Supreme Court of the State, while in other parts this was denied; and it was held that a State might establish one system of law in one portion of its territory and a different system in another, and that in so doing there wTas no violation of the Fourteenth Amendment. So, in Hayes v. Missouri, 120 U. S. 68, it appeared that a certain number of peremptory challenges was allowed in cities of over 100,000 inhabitants, while a less number was permitted in other portions of the State. It was held that that was no denial of the equal protection of the laws, the court saying, page 71: “ The Fourteenth Amendment to the Constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” It is true that here there is no territorial distribution, but in all cases in which a struck jury is ordered the same number of challenges is permitted, as similarly in all cases in which the trial is by an ordinary jury. Either party, State or defendant, may apply for a struck jury, and the matter is one which is determined by the court in the exercise of a sound discretion. There is no mere arbitrary power in this respect, any more than in the granting or refusing of a continuance. The fact that in one case the plaintiff or defendant is awarded a continuance and in another is refused does not make in either a denial of the equal protection of the laws. That in any given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration on appeal, but it amounts to nothing more. Perceiving no error in the record, the judgment is Affirmed. Mr. JusTicE Harlan concurred in the result. VOL. CLXXV—12 178 OCTOBER TERM, 1899. Opinion of the Court. COUDERT, Administrator, v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 15. Argued October 10,1899. —Decided November 20,1899. Money derived from the sale of a vessel captured in 1863 as a blockade runner, which, pending proceedings in court for condemnation and forfeiture, was deposited by the marshal to await the further order of the court in a national bank which was a special or designated depositary of public moneys, and which deposit was in part lost by reason of the failure of the bank, is not public money of the United States which may be recovered from it under the act of March 3, 1887, c. 359, 24 Stat. 505, generally known as the Tucker Act. The statement of the case will be found in the opinion. ALr. Frederic R. Coudert, Jr., for plaintiff in error. J/a Charles Frederic Adams was on his brief. J/?. Assistant Attorney General Pradt for defendant in error. Mr. Justice McKenna delivered the opinion of the court. The plaintiff bases his right of action on the act of March 3, 1887, c. 359, known as the Tucker Act, 24 Stat. 505, and the following facts: In November, 1863, the United States vessel Granite City seized the Spanish bark Teresita, the property of Raphael Madrazo, in the Gulf of Mexico as a blockade runner. Proceedings were instituted for her condemnation and forfeiture in the District Court for the Eastern District of Louisiana. By order of the court, dated August 23, 1864, she and her cargo were sold by the United States marshal, and the proceeds of the sale, amounting to the sum of $10,359.20, after deducting costs and other charges, were deposited by the marshal in the First National Bank of New Orleans, a special or designated depositary of public moneys of the United States, COUDEBT, Administrator, v. UNITED STATES. 179 Opinion of the Court. to await the further order of the court. Judgment was subsequently rendered in favor of the claimant against the United States, from which the latter appealed to the Supreme Court, obtaining a supersedeas pending the appeal. The judgment was affirmed and restitution of the vessel and cargo directed. The Teresita, 5 Wall. 180. Pending the appeal to the Supreme Court, the bank failed, and a receiver was duly appointed of its assets. In liquidating its affairs the receiver paid Madrazo during his lifetime, and to his representatives after his death, dividends amounting in all to $8183.87, the first payment May 1, 1871, the last on September 28, 1882. Madrazo died in Cuba on the 14th of April, 1877, and on the 20th of September, 1888, ancillary letters of administration were issued in the county of New York to the plaintiff in error. After the payment of September 28, 1882, the receiver had no further funds applicable to the claim. This action was brought September 24, 1888, for the sum of $2175.43, the balance of the proceeds of the sale after deducting the payments made by the receiver. The Circuit Court rendered judgment for the plaintiff for the amount claimed with interest from September 28, 1882. The Circuit Court of Appeals reversed the judgment, 38 U. S. App. 515, and the case was brought here. The contention of plaintiff in error is that the deposit of the proceeds of the sale of the Teresita in the First National Bank of New Orleans, then a depositary of the public moneys of the United States, was a payment into the Treasury of the United States, and hence a receipt thereof by the United States, and,11 consequently, a sum of money equal to the whole of such net proceeds must be held to have become payable to the claimant by the United States under the decree of restitution wholly irrespective of any loss of particular assets of the Treasury through the failure of the bank.” A similar contention was made upon facts very much the same in Branch v. United States, 100 U. S. 673. In that case certain cotton was seized under the Confiscation Act and sold during the progress of a suit for its condemnation by order of 180 OCTOBER TERM, 1899. Opinion of the Court. the court, and the proceeds deposited by the clerk to await the further order of the court in the First National Bank of Selma, Alabama, upon a notification of the Secretary of the Interior that such bank had been designated by the Secretary of the Treasury as a depositary of public money. The suit was dismissed and judgment entered in favor of the defendants for costs. Pending the suit the bank failed, and in the proceedings for winding up its affairs a dividend upon the deposit was paid to the court, and then by order paid over to the claimants. A suit was brought against the United States for the balance of the original deposit upon the ground that the Selma bank was at the time of the deposit a designated depositary of public money and was part of the Treasury of the United States, and that consequently a deposit in it was a payment into the Treasury of the United States, binding the latter to its return if the decision of the court should be against condemnation. To the contention the court answered by Chief Justice Waite: “ The position assumed by the appellants is to our minds wholly untenable. The designated depositaries are intended as places for the deposit of the public moneys of the United States; that is to say, moneys belonging to the United States. No officer of the United States can charge the Government with liability for moneys in his hands not public moneys by depositing them to his own credit in a bank designated as a depositary. In this case, the money deposited belonged for the time being to the court, and was held as a trust fund pending the litigation. The United States claimed it, but their claim was contested. So long as this contest remained undecided, the officers of the Treasury could not control the fund. Although deposited with a bank that was a designated depositary, it was not paid into the Treasury. No one could withdraw it except the court or the clerk, and it was held for the benefit of whomsoever in the end it should be found to belong.” But that case is claimed to be distinguished from the pending one because the Confiscation Act, under which the Branch case was decided, contained no provision for the deposit in the Treasury, pendente lite, of the proceeds of property seized but not yet finally condemned. COUDERT, Administrator, v. UNITED STATES. 181 Opinion of the Court. In other words, the argument is that there was no provision in the Confiscation Act which required a deposit of the proceeds of the sale of property seized, and hence the deposit was the personal act of the officer, neither directed nor authorized by law, and did not charge the United States with responsibility, but that in the pending case, in pursuance of law, the deposit was virtually in the Treasury of the United States and became the property of the United States — “assets of the Treasury” — and subject, as public moneys are subject, to the use of the United States, and that the relation of debtor and creditor was created between the owner of the property sold and the United States. The argument concedes, and necessarily, that there must have been authority or requirement of law for the deposit in this case. Was there such authority or requirement ? It is claimed to have been contained in certain statutes of the United States which enabled the Secretary of the Treasury to designate national banks as public depositaries and by the acts of March 3, 1863, 12 Stat. 759, c. 86, and June 30, 1864, o. 174,13 Stat. 308. The latter acts respectively provided, with some difference of expression and detail, that “ prize property ” may be ordered sold by the court pendente lite, and upon any sale it shall be the duty of the marshal “ forthwith to deposit the gross proceeds of the sale with the Assistant Treasurer of the United States nearest the place of sale, subject to the order of the court in the particular case.” This direction of the statutes was not complied with. Its practical and legal alternative, it is contended, was complied with by a deposit of the proceeds of the sale of the Teresita in the New Orleans bank, then a public depositary, which by such designation became the Treasury of the United States. It is impracticable to quote all the provisions of law in regard to the deposit, keeping and disbursement of the moneys of the United States. They will be found with a reference to the statutes of which they are the reproduction in the Revised Statutes of the United States, Title XL, Public Moneys. It is sufficient to say that places of deposit of the public moneys 182 OCTOBER TERM, 1899. Opinion of the Court. are provided, and the duty of the officers who receive and disburse them. From these provisions it will be seen that the public moneys of the United States are the revenues of the United States from all sources, and the gross amount received must first be paid into the Treasury. (Secs. 3617 and 3618.) They are then subject to the draft of the Treasurer of the United States drawn agreeably to appropriations made by law. (Secs. 3593 and 3642. See also sec. 3210.) From this summary we may more clearly understand the particular provisions of law which were applicable to public depositaries at the time of the deposit in this case. They were contained in the act of March 3, 1857, c. 114,11 Stat. 249, § 3621, Rev. Stat., and in section 45 of the General Banking Act of June 3,1864, c. 106, 13 Stat. 99,113 ; § 3620, Rev. Stat. The first act provided that “every disbursing officer or agent of the United States having any money of the United States intrusted to him for disbursement shall be and is hereby required to deposit the same with the Treasurer of the United States or with some one of the Assistant Treasurers or public depositaries, and draw for the same only in favor of the persons to whom payment is to be made in pursuance of law and instructions; except when payments are to be made in sums under twenty dollars, in which case such disbursing agent may check in his own name, stating that it is to pay small claims.” The second act provided that “all associations under this act, when designated for that purpose by the Secretary of the Treasury, shall be depositaries of public money, except receipts from customs, under such regulations as may be prescribed by the Secretary; they may also be employed as financial agents of the government; and they shall perform all such reasonable duties, as depositaries of public moneys and financial agents of the government, as may be required of them. And the Secretary of the Treasury shall require of the associations thus designated satisfactory security, by the deposit of United States bonds and otherwise, for the safekeeping and prompt payment of the public money deposited with them, and for the faithful performance of their COUDERT, Administrator, v. UNITED STATES. 183 Opinion of the Court. duties as financial agents of the government; Provided, that every association which shall be selected and designated as receiver or depositary of the public money shall take and receive at par all of the national currency bills, by whatever association issued, which have been paid into the government for internal revenue or for loans or stocks.” It was also provided by the act of August 6,1846, sec. 3616, Rev. Stat., “ All marshals, district attorneys and other persons than those mentioned in the preceding section, having public money to pay to the United States, may pay the same to any depositary constituted by or in pursuance of law which may be designated by the Secretary of the Treasury.” It is obvious from these provisions that it was only public money of the United States of which national banks could be made depositaries, and it was therefore only public money which an officer could deposit in them, whether he received it originally or received it to disburse. This is the ruling in the Branch case, and it is clearly applicable to the case at bar. By the seizure of the Teresita the title to her did not change nor the title to the proceeds of her sale, pendente lite. That awaited adjudication, and whatever relations to such proceeds or responsibility for them the United States might have assumed if they had been deposited with an Assistant Treasurer, they did not become public money and subject to the statutes applicable to public money, and authorized to be deposited in a public depositary. It is not without significance that when Congress authorized moneys paid into any court of the United States, or received by the officers thereof, in any cause pending or adjudicated in such court,” to be deposited with a designated depositary, it required it to be done “ in the name and to the credit of such court,” and not to the credit of the United States. Act of March 24, 1871, c. 2, 17 Stat. 1. Judgment affirmed. Note. This case stood on the docket in the name of Charles Coudert as ancillary executor. Just before it was reached for argument, his death was suggested, and the appearance of Paul Fuller as administrator was entered. 184 OCTOBER TERM, 1899. Opinion of the Court. MARKUSON v. BOUCHER. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOE THE DISTRICT OF NORTH DAKOTA. No. 77. Argued and submitted October 27,1899. —Decided November 20, 1899. It is again held that judgments of the state courts in criminal cases should not be reviewed by Federal courts through writs of habeas corpus, but the proper remedy in such case, when it is claimed that some right under the Constitution of the United States has been denied the person convicted, is by writ of error. The statement of the case is in the opinion. Mr. C. D. O'Brien for appellant submitted on his brief. Mr. Edward Winterer for appellee. Mr. Justice McKenna delivered the opinion of the court. On the 3d of January, 1898, the appellant presented a petition to the United States District Court for the District of North Dakota for a writ of habeas corpus. It alleged that the petitioner was confined, and had been since the 7th of December, 1897, in the state penitentiary of North Dakota, under and in pursuance of a “certain pretended commitment” issued by the district court of the fifth judicial district of the State, in and for the county of Barnes, upon a “pretended judgment and sentence” of said court in certain proceedings therein instituted on the relation of the assistant attorney general of the State, and by the terms of said judgment and sentence the petitioner was sentenced to be imprisoned in said state penitentiary for one year. That petitioner appealed to the Supreme Court of the State, which court affirmed “ in all things the said judgment, conviction and sentence,” whereupon he was confined as aforesaid. That the proceedings “ were had and carried on ” under and pursuant to the provisions of section 7605 of the Revised Statutes of the State, and of other statutes of the State. MARKUSON v. BOUCHER. 185 Opinion of the Court. The petition further alleged that the said statutes violated the fifth and sixth articles of the Amendments of the Constitution of the United States, and article 1 of the Fourteenth Amendment, in that they (the statutes) provide for the charging of a citizen with an infamous crime and compel him to answer and be punished therefor without a presentment and indictment of a grand jury; and deprive in a criminal prosecution the right of a trial by an impartial jury of the State and district wherein the crime was committed, and permit a conviction of one accused of crime without being confronted with the witnesses against him; and operate to abridge the privileges and immunities of citizens of the United States and deprive them of liberty and property without due process of law and the equal protection of the laws, in that they provide that in prosecutions thereunder a conviction for the contempt of court may be had without a trial by jury, whereas in all other criminal prosecutions persons accused are entitled to a jury trial; and further, in that under such proceedings a contempt of court is punishable as an infamous crime, whereas in all other proceedings a contempt of court is punishable as a misdemeanor. Petitioner further alleged that he was in “ straightened circumstances, and without means or power to prosecute a writ of error from the Supreme Court of the State to the Supreme Court of the United States, or to employ counsel to present or argue it there, and is informed and believes if he had such means it could not be brought on for hearing before the expiration of his sentence.” A writ of habeas corpus was prayed for and issued. On return and hearing it was discharged, and the petitioner remanded to custody. From the order remanding this appeal was prosecuted, and the petitioner was admitted to bail to await the decision of the appeal. In the brief of appellant’s counsel, and also in that of the attorney general of the State, as well as in oral argument, the constitutional points raised were argued at length. We are not disposed to consider them. We have frequently pronounced against the review by habeas corpus of the judg- 186 OCTOBER TERM, 1899. Opinion of the Court. ments of the state courts in criminal cases, because some right under the Constitution of the United States was alleged to have been denied the person convicted, and have repeatedly decided the proper remedy was by writ of error. It is not necessary to review the cases or to repeat or justify their reasoning. We lately stated the rule and the reasons for it in the cases of Balter v. Grice, 169 U. S. 284, and in Tinsley v. Anderson, 171 U. S. 101, 104. In the latter, passing on an appeal from judgment dismissing a writ of habeas corpus, the Chief Justice said: “ The dismissal by the Circuit Court of the United States of its own writ of habeas corpus was in accordance with the rule, repeatedly laid down by this court, that the Circuit Courts of the United States, while they have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in custody under the authority of a State in violation of the Constitution, a law or a treaty of the United States, yet, except in cases of peculiar urgency, ought not to exercise that jurisdiction by a discharge of the person in advance of a final determination of his case in the courts of the State, and, even after such final determination, will leave him to his remedy to review it by writ of error from this court. Ex parte Royall, 117 U. S. 241; Ex parte Fonda, 117 U. S. 516; In re Frederick, 149 U. S. 70; Peph v. Cronan, 155 U. S. 100; Bergemann n. Backer, 157 IT. 8. 655; Whitten v. Tomlinson, 160 U. S. 231; Baker v. Grice, 169 U. S. 284.” In Baker v. Grice, Mr. Justice Peckham said: “Instead of discharging they [the Federal courts] 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 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 THE NEW YORK. 187 Syllabus. courts of an indictment found under the laws of a State be finally prevented.” The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a State in which the constitutional rights of a prisoner could have been claimed and may be were rightly decided, or if not rightly decided, could be reviewed and redressed by a writ of error from this court. The case at bar presents no circumstances to justify a departure from the rule or to relieve from the application of its reasons. Nor does the question arise what right appellant would have had to petition relief from the District Court if his remedies against the judgment of the state court had ceased to exist. Judgment affirmed. THE NEW YORK.1 CERTIORARI TO THE CIRCUIT COURT OK APPEALS FOR THE SIXTH CIRCUIT. No. 56. Argued October 19, 1899. — Decided November 20, 1899. In 1891, the navigation of steamers upon the Great Lakes and their connecting waters was governed by the Congressional Rules and Regulations of Apiil 29,1864, Rev. Stat. § 4233, and, so far as the manoeuvres of the vessels took place in American waters, by the Supervising Inspectors’ rules in force at that time. The Revised International Regulations of 1885 apply only to vessels navigating the high seas and coast waters of the United States, and not to those navigating the Great Lakes. A court of admiralty may properly take judicial notice of an act of the parliament of Canada regulating the navigation of Canadian waters, passed in 1886, as a law of the sea and of general application. ere a Canadian statute was introduced and treated as evidence by consent of counsel upon a motion for a rehearing in the District Court, °ugh it did not appear of record, and, in obedience to a writ of Tbe docket title of this case is The Erie & Western Transportation Com-York” T^e Uni°n Steamboat Company, claimant of the Propeller “New 188 OCTOBER TERM, 1899. Statement of the Case. certiorari from the Court of Appeals, was certified up to the Court of Appeals by the clerk of the District Court as a true copy of the original act as published, it was held that the Court of Appeals should have treated the act as properly before it, notwithstanding the clerk did not certify it to be a part of the record. The steamer Conemaugh, while descending the Detroit River at night, discovered in her path a long tow, which was rounding to on the American side and was temporarily taking up three fourths of the navigable channel, and starboarded in order to pass between the rear barges and the Canadian channel bank. While proceeding under her starboard wheel, she made the lights of the propeller New York ascending the river. She blew her three signals of two whistles each, to neither of which the New York responded. On discovering the rear barges of the tow, she ported to follow’ them down the river, and upon discovering the New York in dangerous proximity, put her helm hard-a-starboard and her engines at full speed. The New York was at the same time coming up under a port wheel, and struck the Conemaugh on the starboard side and sank her. Held that the Conemaugh was in fault (1) for not stopping when the New York failed to answer her signals; (2) for porting and then starboarding in order to cross the bow of the New York. The New York, while ascending the river, made the lights of the tow, exchanged signals of one whistle with the propeller in charge of it, and ported her wheel to pass between the rear barges and the Canadian channel bank. She heard no signals and did not make out the colored lights of the Conemaugh. As she passed the rear barges she starboarded to resume her course, and struck the Conemaugh as above stated. Held: That she was in fault (1) for an inefficient lookout; (2) for failing to answer the repeated signals of the Conemaugh; and (3) for failure to stop after she made the white light of the Conemaugh, until her course and movements had been satisfactorily ascertained. The fact that the officers of a steamer fail to see the signal lights of an approaching steamer, which are seen by other witnesses in the neighborhood, or to hear the whistles of such steamer which were plainly audible to others, is, unexplained, conclusive evidence of a defective lookout. It is the duty of a steamer receiving signal whistles from an approaching steamer to answer them promptly; but it is also the duty of such approaching steamer, on the failure of the other to answer, to stop until her silence is explained and her course ascertained with certainty. Where the owners of a cargo of a steamer, which has been sunk by collision occasioned by the mutual fault of two colliding steamers, intervene for their interest in a suit instituted by the owners of the carrying vessel against the other, they are entitled to recover full damages against such other vessel, notwithstanding the damages to such vessels are divided as between themselves. This was a libel in admiralty filed by the Erie & Western Transportation Company, owner of the propeller Conemaugh, THE NEW YORK. 189 Statement of the Case. and a cross-libel by the Union Steamboat Company, owner of the propeller New York, against the propeller Conemaugh, to recover damages for a collision between these vessels which occurred between seven and eight o’clock in the evening of October 21, 1891, on the Canadian side of the Detroit River, a short distance below the village of Sandwich in the Province of Ontario, and between what is known as Petite Cote, on the Canadian side, and Smith’s Coal Shutes, on the American side of the river. The river at this point is nearly straight, and flows in a direction about south-southwest. The underwriters of the cargo of the Conemaugh were permitted to intervene to protect their interests. The libel of the Conemaugh averred that she was bound from Milwaukee to Erie, Pennsylvania, with a cargo of about 1800 tons of package freight; that she was proceeding down the river on the American side of mid-channel, “ having hauled some to starboard to avoid some piles driven in the channel,” and known as the Kasota piles, and when half or three quarters of a mile above Smith’s Coal Dock, she received a signal of two blasts from the steamer Burlington, which, with four barges in tow, had gone down the Canadian side of the river, and was then rounding to at the coal dock on the American side, exhibiting her masthead and green lights to the Cone-maugh. Her engine was at once checked, and remained checked until the time of the collision, her helm starboarded, the whistle answered by two blasts, and the propeller hauled out sharply, keeping some distance above the tow, and so directing her course as to pass astern and to the Canadian side of the tow, which was then stretched out in the river toward that side; that the Conemaugh then made the lights of the New York down the river below the tow, and coming up toward the Conemaugh upon such a course that the Cone-maugh would cross the course of the New York before the latter could reach the point of intersection; that the Cone-uiaugh at once blew her a signal of two blasts, notifying the New York that she was so directing her course as to keep well in on the Canadian shore, and to leave the New York to starboard as she should come abreast of the tow. Receiving 190 OCTOBER TERM, 1899. Statement of the Case. no reply thereto, the Conemaugh repeated the signal of two blasts. The New York did not reply to this second signal, whereupon the Conemaugh blew a third signal of two blasts, when the New York, which had all the time been coming rapidly up the river, without replying to any of the Cone-maugh’s signals, turned suddenly and rapidly to starboard, swinging over to the Canadian side; seeing which, the Conemaugh blew alarm whistles and hard-starboarded her helm. But the New York, first swinging rapidly and violently to starboard, and apparently turning some to port before she struck, came on at full speed, struck the Conemaugh on the starboard side abreast the texas, cut deeply into her, and crushed her side. The Conemaugh almost immediately struck the Canadian bank of the river and filled and sank. The answer and cross-libel of the New York averred that she was bound on a voyage from Buffalo to Milwaukee, laden with a cargo of general merchandise; that at the time of the collision she was bound up the Detroit River, and when near the point in said river below where the River Rouge empties into it, a steamer — the Burlington — with a tow of four barges, began to round to from the Canadian side to Smith’s Coal Dock on the American side, exhibiting to the New York her masthead and red side light, as well as the red side lights of the barges in tow. To this the New York blew her a passing signal of one blast, “ at the same time checking her engine and reducing her speed to about four miles an hour, and then porting her helm so as to pass under the stern of the last barge. When the New York had arrived at a point abreast of the last barge in tow, a signal of two whistles was heard, but being unable to see any vessel, and noticing only a white light close on the Canadian bank of the river, this signal of two blasts was not answered, as it seemed to be intended for some other vessel, the New York being then close to the Canadian bank, and there not being room enough for any vessel to safely pass between her and that bank. The New York, therefore, still running slowly, continued on her course so as to go around close to the last barge, and when abreast of her quarter starboarded so as to go close under her stern. THE NEW YORK. 191 Statement of the Case. While passing under the stern of this barge, and not more than ten or twenty feet from her, several short blasts of a propeller, which proved to be the Conemaugh, were heard close at hand, and not more than one hundred feet away. The Conemaugh pursued her course directly across the bows of the New York, which was then swinging under a hard-a-starboard helm. A collision was then inevitable, and there was neither time nor room enough to stop the engine of the New York, and the only way left open to avoid a collision was to continue under headway and to swing clear under a hard-a-starboard helm. This was done. Notwithstanding this the Conemaugh, with considerable headway, continued on her course across the bows of the New York, so that the latter struck her, stem on, on the starboard side, abreast of her forward gangway, and glancing along this side was swung by the Conemaugh nearly alongside.” The New York immediately backed, and offered her assistance to the Conemaugh, but as she was then on the bank she refused the assistance. That no other passing signal was heard from any steamer after the exchange of the signal of one blast with the Burlington, except the signal of two short blasts from the Conemaugh, and that when this was received the New York was close alongside of the last barge heading for the Canadian bank of the river, where no steamer could pass with safety, starboard to starboard. A large amount of testimony was introduced on behalf of the libellant, but none whatever by the claimant. A hearing upon pleading and proofs before the District Court resulted in a decree holding both vessels in fault and dividing the damages, although the District Judge expressed some doubt with regard to the fault of the Conemaugh. 53 Fed. Rep. 553. Libellant soon thereafter moved for a rehearing upon the ground that the rules of the Supervising Inspectors had no application; that the international rules adopted in 1885 governed the case, and asked leave to submit further testimony, and for other reasons. This was granted, and a new decree entered vacating the former decree, and adjudging the New York to have been solely in fault upon the ground that, under 192 OCTOBER TERM, 1899. Statement of the Case. the case of the City of New York, 147 U. S. 72, 85, then recently decided, the fault of the Conemaugh had not been proven with sufficient clearness to justify a division of damages. Thereupon the claimant moved to vacate the decree and for leave to introduce evidence in its own behalf, which was denied. This motion was repeated upon affidavits, and the deposition of the master, second mate and engineer of the New York taken de bene esse under the statute. The motion was however denied; the depositions stricken from the files, and a final decree entered against the New York for the damages and loss to the Conemaugh and her cargo. Thereupon the claimant appealed the cause to the Circuit Court of Appeals, and upon the record being filed in that court, a motion was made by the libellant for an order that the testimony of a witness be taken to prove the Canadian statute in force for regulating the navigation of the waters of the Province of Ontario at the time of the collision, and that a copy of such statute be introduced in the cause. This motion was supported by an affidavit that the Canadian statute was introduced in the District Court, and used and referred to in the arguments upon the rehearing before the District Judge; that such statute was then treated and used as part of the record ; but there was no stenographer present at the time and no minute of such introduction and use of the Canadian statute was preserved in the record. The motion for an order permitting testimony to prove the Canadian statute appears to have been withdrawn, a suggestion of diminution of record substituted and a writ of certiorari asked for and granted to supply such evidence as did not appear in the record. The District Court made return to this writ by an order that the clerk transmit to the Court of Appeals a certified copy of the Canadian statutes governing the navigation of vessels in the waters of Canada during the year 1891. The navigation act of Canada of 1886 was thereupon sent up with a certificate of the clerk of the District Court that “ the papers hereto attached, marked Exhibit A, are a true copy of the Revised Statutes of Canada, 1886, volume 1, chapter 79, entitled ‘ An act respecting the navigation of Canadian waters, a.d. 1886; THE NEW YORK. 193 Opinion of the Court. that I have carefully compared the same with the original act as published, and find the same to be a true copy of such original and of the whole thereof.” That court, however, refused to consider this statute upon the ground that the return of the District Court to the writ contained no certificate that the statute was made a part of the record by being offered and received in evidence, but only a statement by the clerk that “ that which is returned is a correct copy of the Canadian statute as published.” The hearing of the appeal resulted in a reversal of the decree of the District Court, and a remand to that court with directions to dismiss the libel of the Conemaugh upon the ground that she only was in fault. 54 U. S. App. 248. A rehearing was subsequently asked for and denied. 56 U. S. App. 146. Whereupon libellant applied for and was granted a writ of certiorari from this court. Jfr. F. II. Canfield and Hr. Harvey D. Goulder for petitioners. Hr. John C. Shaw was on Mr. Goulder’s brief. Mr. H. C. Wisner and Hr. C. E. Kremer for respondents. Hr. W. 0. Johnson was on their brief. Mr. Justice Brown, after making the above statement of facts, delivered the opinion of the court. This collision took place in October, 1891. The navigation of the two steamers was therefore governed by the Congressional Rules and Regulations Act of April 29, 1864, c. 69, 13 Stat. 58, reproduced in Revised Statutes, section 4233, and, so far at least as the manoeuvres of the respective vessels took place in American waters, by the Supervising Inspectors’ rules in force in 1891. The Revised International Regulations of 1885, act of March 3, 1885, c. 354, 23 Stat. 438, apply only to navigation upon the high seas and in all coast waters of the United States; ” and in section two, repealing prior inconsistent laws, VOL. CLXXV—13 194 OCTOBER TERM, 1899. Opinion of the Court. there is an exception of vessels navigating “ the harbors, lakes and inland waters of the United States.” It is true that in Moore v. The American Transportation Co., 24 How. 1, the limited liability act of 1851, which contained an exception of vessels used “in rivers or inland navigation,” was held, notwithstanding this exception, to apply to vessels navigating the Great Lakes; but the cases are readily distinguishable. In that the exception was “ any canal boat, barge or lighter, or (to) any vessels of any description whatsoever, used in rivers or inland navigation.” It was held that the character of the craft enumerated might “ well serve to indicate to some extent, and with some reason, the class of vessels in the mind of the lawmakers, which are designated by the place where employed.” But the case was really decided upon the ground of the magnitude of the Lakes, their commerce, their vessels and the well-known perils incident to lake navigation. It was thought that such commerce deserved to be placed on the footing of commerce on the ocean, and that “Congress could not have classed it with the business upon rivers, or inland navigation,” in the sense in which we understand these terms. In the present case the exception is specifically of “vessels navigating the harbors, lakes and inland waters of the United States.” If the word “lakes” was not intended to include the Great Lakes it is difficult to see the object of Congress in making use of that word, since nearly all the other navigable lakes, except Lake Champlain, are located within the limits of a single State, and no act was necessary to exempt them, as the power of Congress does not extend to the purely internal or infraterritorial commerce of the country. The Montello, 11 Wall. 411; Veazie v. Moor, 14 How. 568. The question, however, is one of little practical importance in this case, inasmuch as rule 19 of Rev. Stat. § 4233 is word for word the same as article sixteen of the Revised International Rules and Regulations of 1885. Both are as follows: “ If two vessels under steam are crossino> so as to involve risk o of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.” THE NEW YORK. 195 Opinion of the Court. The power of the Supervising Inspectors to adopt rules for the government of steam vessels in passing each other, Rev. Stat. § 4412, is limited by sec. 4400 to steam vessels “navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation.” These rules are pertinent to this case only so far as they make it the duty of vessels to indicate by signals of one or two whistles the course they are about to take, and of the other vessel to answer them, and also, in case of vessels crossing each other, within the meaning of article sixteen, in requiring the obligated vessel to avoid the other by porting and going under her stern. These rules are as follows: Rule II. “ When steamers are approaching each other in an oblique direction (as shown in diagram of the fourth situation) they shall pass to the right of each other as if meeting 4 head and head’ or nearly so, and the signals by whistle shall be given and answered promptly, as in that case specified.” Rule III. 44 If, when steamers are approaching each other, the pilot of either vessel fails to understand the course of the other, whether from signals being given or answered erroneously or from other cause, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam whistle; and after the vessels have approached within half a mile of each other both shall be immediately slowed to a speed barely sufficient for steerage way until the proper signals are given, answered and understood, or until the vessels shall have passed each other.” Rule VI. 44 The signals by the blowing of the steam whistle shall be given and answered by pilots in compliance with these rules, not only when meeting 1 head and head,’ or nearly so, but at all times when passing or meeting at a distance of within half a mile, and whether passing to the starboard or port.” 1. We are of opinion that the Canadian statute of 1886 may properly be considered by us. The question how far this court may take judicial notice of the laws of a foreign country has been the subject of some discussion, and was first considered by this court in the case of 196 OCTOBER TERM, 1899. Opinion of the Court. Talbot v. Seeman, 1 Cranch, 1, 38. That was a case of salvage upon recapture from the French. It became necessary to inquire whether the laws of France were such as to have rendered the condemnation so probable as to create a case of such real danger that her recapture could be considered a meritorious service. To prove this, counsel offered several decrees of the French government, to the reading of which objection was made upon the ground that they were the laws of a foreign nation, and therefore to be proved as facts. In holding that the decree, having been promulgated in the United States as a law of France, was entitled to be read, Mr. Chief Justice Marshall observed “that the laws of a foreign nation, designed only for the direction of its own affairs are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with respect to facts, is limited to the statement made in the court below, cannot be questioned. The real and only question is, whether the public laws of a foreign nation on a subject of common concern to all nations, promulgated by the governing powers of a country, can be noticed as law by a court of admiralty of that country, or must be still further proved as a fact. The negative of this proposition has not been maintained in any of the authorities which have been adduced. On the contrary, several have been quoted, (and such seems to have been the general practice,) in which the marine ordinances of a foreign nation are read as law without being proved as facts. It has been said that this is done by consent; that it is a matter of general convenience not to put parties to the trouble and expense of proving permanent and well-known laws which it js in their power to prove; and this opinion is countenanced by the case cited from Douglas. If it be correct, yet this decree, having been promulgated in the United States as the law of France by the joint act of that Department which is entrusted with foreign intercourse, and of that which is invested with the powers of war, seems to assume the character of notoriety which renders it admissible in our courts.” The same question as applied to the original Rules and THE NEW YORK. 197 Opinion of the Court. Regulations was presented to us in the case of The Scotia, 14 Wall. 170, in which we held that, in view of the fact that these rules and regulations were originally adopted by the British Orders in Council of January 9, 1863, and by Congress in 1864, and had been accepted as obligatory by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we would take judicial notice of them and treat them as laws of the sea and of general obligation. The duty to take judicial notice of these rules was also recognized by this court in The Belgenland, 114 IT. S. 355, 370, in The Richelieu due. Navigation Co. v. Boston Marine Ins. Co., 136 IT. S. 408, 422, and in numerous cases in the lower courts. There is nothing in the case of The Liverpool &c. Steam Co. n. Phoenix Ins. Co., 129 IT. S. 397, in conflict with this. That did not involve a question of general maritime law, but of a statutory exemption from the consequences of negligence in navigation given by a British act of Parliament. We know of no reason why the rule adopted in The Scotia should not be applied to the Revised International Rules and Regulations. They have also been adopted by most, if not all, the nations which gave their assent to the original rules and regulations of 1863, and the reasons which induced this court to take judicial notice of these rules are equally persuasive here. The reference to the Canadian statute of 1886, used in the District Court and printed as a part of the record here, shows it to be, except as to the waters covered by it and as to certain immaterial local regulations, a literal copy of the Congressional act of 1885. But we think that for another reason the act is properly before us. After the case had been appealed to the Circuit Court of Appeals, the libellant moved that court for an order requiring the testimony of a witness to be taken to prove the Canadian statute, and filed in support of this motion affidavits that in the printed record there was no copy of this statute, but that it was introduced in the District Court and used and referred to in the arguments upon the rehearing before the District Judge; that at that time the libellant offered to prove the statute by oral testimony, but that it was then agreed in 198 OCTOBER TERM, 1899. Opinion of the Court. open court between the proctors that the testimony of such witness might be dispensed with, and that the statute then in court might be used without technical proof thereof. No order was made upon this motion, but there was a further suggestion to the court of a diminution of the record in that the Canadian statute, which was introduced and used as evidence in the District Court, did not appear in the record, and a writ of certiorari was granted “ because the transcript of the record in this case does not contain a copy of the Canada statutes governing the navigation of vessels in the waters of Canada during the year 1891, which was introduced in evidence, as alleged.” In obedience to this writ, the clerk of the District Court was ordered to transmit to the Circuit Court of Appeals a certified copy of the Canadian statute. This was done, but the clerk, instead of certifying that it was a part of the record, certified only that he had “ carefully compared the same with the original act as published” (by which we understand as published in the statutes of Canada,) “ and find the same to be a true copy of such original and of the whole thereof.” It thus appears that the Canadian statute had been used in the District Court by consent of counsel, had been treated as part of the record, and that the copy sent up was a true copy of the statute as published. It is true that the clerk did not formally certify it to be a part of the record, but the fact that it had been so treated was established by the affidavit; and the writ of certiorari upon its face recited.the fact that a copy of the statute had been introduced in evidence, as alleged, and required the court below to “ send the record and proceedings, with all things concerning the same, as fully and entirely as they remain of record in said District Court.” In view of these proceedings, we think the Circuit Court of Appeals should have accepted the certified copy of the statute as properly in evidence before it. The only novel feature of this statute, pertinent to this case, is as follows: “ Art. 19. In taking any course authorized or required by these regulations, a steamship under way may indicate that course to any other ship which she has in sight by the follow- THE NEW YORK. 199 Opinion of the Court. ing signals on her steam whistle, that is to say: One short blast to mean 1 I am directing my course to starboard; ’ two short blasts to mean ‘I am directing my course to port;’ three short blasts to mean ‘ I am going at full speed astern.’ The use of these signals is optional; but if they are used, the course of the ship must be in accordance with the signal made.” In this view, the question whether two American vessels running from one American port to another are bound, whenever they cross the boundary line between the United States and Canada, which at this point is the filum aqua of Detroit River, to conform to the navigation laws of Canada, does not arise in this case. Were all the commerce of the lakes carried on in American vessels the question would be less difficult of solution. But as much of this commerce is Canadian, and it is impossible to tell whether an approaching vessel be American or Canadian, an attempt to apply the laws of the United States in all cases might result in confusion and in great injustice to Canadian vessels, in case the rules and regulations of the two countries differed in any material respect. We are saved, however, consideration of these questions by the fact that the signals and the steering rules of the United States and Canada are practically identical. This fact being once established, the duty of vessels of both nations in meeting each other, either upon American or Canadian waters, is easily understood. 2. In judging of the responsibility for this collision, it should be borne in mind that the Burlington and her tow were temporarily occupying from two thirds to three quarters of the navigable channel of the river. The distance between the rear barge and the Canadian bank of the navigable channel is variously estimated, but according to the Court of Appeals was about five hundred feet. It may have been as much as eight hundred feet, but probably was not more than that. The night was clear and starlit, the weather fine, and the collision could scarcely have occurred except by the fault of one or both vessels. The Conemaugh, a steamer of 1609 tons burden, was com- 200 OCTOBER TERM, 1899. Opinion of the Court. ing down the American side of the river at her usual speed of about ten miles an hour, and, when her attention was first called to the obstruction of the Burlington’s tow, was about passing what are known as the Kasota piles, which were in fact the remains of a coffer dam once used in raising the steamer Kasota. They were near mid-channel, though somewhat upon the American side, and about three quarters of a mile above Smith’s Coal Dock. As she was passing these piles, leaving them on her port hand, she received and answered a signal of two blasts from the Burlington, which had come down the river on the Canadian side, and was at that time rounding: to at the coal dock on the American side, her tow of four barges making a crescent or semicircle, the outer arm of which was, as above stated, from five to eight hundred feet from the Canadian bank. The length of the tow was about 2600 feet, the width of the channel about 3000 feet. The Burlington at this time was exhibiting to the Conemaugh her white masthead and her starboard green light. The first barge in tow was also exhibiting her green light, but the others had not rounded to sufficiently to exhibit their colored lights. After exchanging this signal with the Burlington, the wheel of the Conemaugh was put hard-a-star-board, her speed checked, and her course taken across the stream at almost a right angle with her former course. Upon this course she was exhibiting her green light to vessels ascending the river. After she had “picked up” or discovered the rear barge her wheel was steadied, and then ported to follow the tow, which by the force of the current was gradually swinging down stream, and would ultimately round to on the American side, astern of the Burlington. As the Conemaugh steadied her wheel to starboard her watch made out below the tow and about a mile distant the white and red lights of the New York, apparently somewhat on the American side of mid-channel, and promptly signalled her with two blasts of her whistle, indicating that she would pass her to the left. No answer was received from the New York. Under such circumstances it would have been more prudent for the Conemaugh to stop and wait a few minutes, until the THE NEW YOBK. 201 Opinion of the Court. tow had drifted down and left the channel clear below her; but inasmuch as there was a clear space of five hundred feet of navigable water between the last barge and the Canadian bank of the channel, we should hesitate to condemn her for this fault, were there no others contributing more immediately to the collision. Receiving no answer to her first blast, the Conemaugh, when the two steamers were about three quarters of a mile apart, repeated her signal of two blasts — the New York then showing her masthead and both colored lights. Again no reply was made by the New York. The Conemaugh, which had then ported and was heading toward the Canadian shore, and about four points from the direct course down the river, gave a third signal of two blasts, the New York continuing to show all three of her lights, and being apparently close to and between the second and third barges of the tow. The New York made no answer to this third signal. The duty of the Conemaugh at this juncture was plain. She should have stopped her engines after the second signal, and, if necessary to bring her to a complete standstill, have reversed them. Nothing is better settled than that, if a steamer be approaching another vessel which has disregarded her signals, or whose position or movements are uncertain, she is bound to stop until her course be ascertained with certainty. The Louisiana, {Louisiana v. Fisher,} 21 How. 1; The Ogdens-burgh, {Chamberlain v. Ward^) 21 How. 548; The R. H. Stokes, {Nelson v. Leland^ 22 How. 48; The Martello, 153 U. S. 64, 71; The Teutonia, 23 Wall. 77; The James Watt, 2 W. Rob. 270; The Birkenhead, 3 W. Rob. 75; The Hermann, 4 Blatchford, 441; The Huntsville, 8 Blatchford, 228; The Ham-monia, 4 Ben. 515; The Mary Sandford, 3 Ben. 100; The Arabian, 2 Stuart Vice Adm’y, 72. There was peculiar necessity for such action in this case. These vessels were about to meet upon crossing courses, and to pass each other in the narrowest part of the channel. The Conemaugh had three times signalled her wish to take the Canadian side, and pass starboard to starboard. The New York had three times neglected to give her assent to this arrangement. The Cone- 202 OCTOBER TERM, 1899. Opinion of the Court. maugh had construed her failure to reply as an acquiescence in her own signals. The New York might have construed such failure as a refusal to acquiesce. In such a case it was clearly incumbent upon the Conemaugh to stop until the mystery of her silence was explained, and in failing so to do she was guilty of fault. Instead of that, while running under check and under a port helm, she steadied and almost immediately lost the green light of the New York, whereupon she sounded an alarm whistle, put her helm hard-a-starboard, and endeavored to shoot across the bows of the New York. The twro steamers were then upon converging courses and about a quarter of a mile apart. Even then, if the Conemaugh had put her helm hard-a-port and reversed her engines she would probably have avoided a collision, although her final error, being apparently in extremis, perhaps ought not to be attributed to her as a fault. But she kept on her course at full speed, with her helm hard-a-starboard, while the New York came up the river, under a port wheel and at full speed, displaying her masthead and red light to the Conemaugh. Just before the collision the wheel of the New York was starboarded, but too late to avert the blow. She struck the Conemaugh on her starboard side near the gangway, and sank her within ten minutes. The place of the collision seems to have been very near the Canadian bank, and about one thousand feet from and a little upon the port quarter of the Furguson, the stern barge of the Burlington’s tow. The fault of the Conemaugh appears the more flagrant from the fact that the two steamers were crossing vessels within the meaning of rule 19, (Rev. Stat. § 4233,) and that the Conemaugh, having the New York upon her starboard side, was bound to keep out of her way. The supervising inspectors’ rules require that this manoeuvre shall be performed by porting the wheel and passing under the stern of the preferred vessel. But, irrespective of this rule, prudent seamanship ordinarily requires that the obligated vessel shall take a course which, if the preferred vessel perform her own duty, will certainly avoid a collision, viz., port and go astern. If, upon the other hand, she elects to starboard and cross the THE NEW YORK. 203 Opinion of the Court. bows of the other vessel, she incurs the manifest danger of not passing the point of intersection before the preferred vessel strikes her, and is justly considered as assuming the responsibility for the success of her manoeuvre. The E. A. Packer, 140 U. S. 360, 366; The Nor, 2 Asp. M. L. Cases, 264. Of course, there may be such conduct on the part of the favored vessel as would show that she was alone guilty of fault, but the greater safety of porting is so manifest that the circumstances must be quite exceptional to justify a different course. > The failure of the Conemaugh’s manoeuvre in this case only emphasizes her original fault in failing to come to a standstill when her two first signals to the New York were disregarded. The conduct of the Conemaugh, as we shall hereafter show in the navigation of the New York, was not even consistent with her own theory, which was that she would cross the course of the New York and pass down between her and the Canadian bank. Instead of doing so, however, as soon as she had “ picked up ” the stern barges and ascertained their exact location, she ported her helm sufficiently to display to these barges a glimmer of her red light, and as the New York was about the same time starboarding to clear these barges, the result was that neither gave the other sufficient room to pass. These circumstances were most favorable to the collision which almost immediately ensued. J 3. Inasmuch as no witnesses were sworn from the New York we are compelled to judge of the propriety of her manoeuvres from the admissions in her answer and from the other testimony in the case. From these it appears that the propeller, a vessel of 1700 tons, was bound up the river, and, when nearing the point below where the river Rouge empties mto the Detroit just above Smith’s Coal Dock, she descried the Burlington and her tow beginning to round to from the Canadian side of the river to the coal dock on the American side, exhibiting to the New York her masthead and red lights as well as the red side light of the barges in tow. The answer avers that thereupon “ the New York blew a passing signal of °ne blast, at the same time checking her engine and reducing ier speed to about four miles an hour, and then porting her 204 OCTOBER TERM, 1899. Opinion of the Court. helm so as to pass under the stern of the last barge. When the New York had arrived at a point abreast of the last barge in tow, a signal of two whistles was heard, but being unable to see any vessel, and noticing only a white light close on the Canadian bank of the river, the signal of two blasts was not answered, as it seemed to be intended for some other vessel, the New York being then close to the Canadian bank, and there not being room enough for any vessel to safely pass between her and the bank.” If there were no other evidence in the case than these allegations, and the uncontradicted testimony of the Conemaugh that she blew three signals to the New York, none of which were answered, it is sufficient to show the latter to have been guilty of a grievous fault. The night was clear, and there appears to have been no difficulty in seeing the white and colored lights of the Burlington and her tow, and should have been none in seeing the lights of the Conemaugh. No reason is given why the signals of the Conemaugh were not heard, and as the New York was not more than a mile distant from her when her first signal was blown, and considerably less than that when the second signal was blown, her inability to hear them is inexplicable, except upon the theory that no sufficient lookout was maintained, or that such lookout did not attend properly to his duties. Her officers failed conspicuously to see what they ought to have seen or to hear what they ought to have heard. This, unexplained, is conclusive evidence of a defective lookout. The Sea Gull, 23 Wall. 165; The James Adger, 3 Blatchford, 515; The Tanita, 14 Blatchford, 545; The Sunnyside, 91 U. S. 208; Spencer on Collisions, § 175. The force of this presumption of a defective lookout is greatly strengthened by the fact that the claimant did not see fit to put upon the stand the officers and crew of the New York, who certainly would have been able to explain, if any explanation were possible, why the lights of the Conemaugh were not seen and distinguished or her signals heard. It was said by this court in the case of Clifton v. United Statesf How. 242, 246, that “ to withhold testimony which it was in THE NEW YORK. 205 Opinion of the Court. the power of the party to produce in order to rebut a charge against him, where it is not supplied by other equivalent testimony, might be as fatal as positive testimony in support or confirmation of the charge.” If the New York heard the signals, it was her duty to answer them. Beyond this, however, the answer admits that a signal of two whistles was heard, and a white light close on the Canadian bank of the river was noticed, but the signal was not answered, as it seemed to be intended for some other vessel. However, the white light in connection with the whistles could only have been the masthead light of a steam vessel, and as there is no evidence that there was any other vessel coming up the river, the signal could only have been intended for the New York. If she were unable to see the colored lights of the approaching steamer, it was her duty to stop until she made them out, or otherwise determine the identity and course of the approaching vessel. Her only excuse for her omission is that she was the preferred vessel within the nineteenth American and sixteenth Canadian rule, and that by the twenty-third American and twenty-second Canadian rule, it was her duty to keep her course. But the fact, that a steamer is entitled to hold her course does not excuse her from inattention to signals, from answering where an answer is required, or from adopting such precautions as may be necessary to prevent a collision, in case there be a distinct indication that the obligated steamer is about to fail in her duty. As was said in the case of The Sunnyside, 91 U. S. 208, 222: “Cases arise in navigation where a stubborn adherence to a general rule is a culpable fault, for the reason that every navigator ought to know that rules of navigation are ordained not to promote collisions, but to save life and property by preventing such disasters.” See also The Delaware, 161 U. S. 459; The Maria Martin, 12 Wall. 31, 47. Both the Canadian and American codes provide that in construing and obeying these rules, due regard inust be had to all dangers of navigation and to any special circumstance which may exist in any particular case, rendering a departure from them necessary in order to avoid 206 OCTOBER TERM, 1899. Opinion of the Court. immediate danger. There is another rule pertinent in this connection, namely, rule twenty-one, American, and article eighteen, Canadian, that every vessel when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse. That the obligation to observe this rule attached to the New York under the peculiar circumstances of this case is entirely clear. Her attention had been called to the fact that a steamer was coming down the river between the rear barge and the Canadian bank. The channel was narrow, and the descending vessel had signified her intention to starboard her helm and pass the New York to the left. The New York avers in her answer that there was not room enough for any vessel to safely pass between her and the Canadian bank, but notwithstanding this, she kept her course toward that bank, and was thus constantly narrowing the channel through which the Conemaugh signified her intention of passing. She averred that her speed in passing the tow was about four miles an hour, but the District Judge was of opinion that she maintained double that speed until the vessels came together. However this may be, her failure to answer the whistles of the Conemaugh or to stop and reverse, after her white light was seen, was wholly inexcusable, and, under the particular circumstances, cannot be justified by her general duty as a favored vessel to keep her course, or by anything that was said by this court in The Britannia, 153 U. S. 130. The master of a preferred steamer cannot, by blindly adhering to his course, atone for the neglect of other precautions. We do not wish to say that the New York was under any obligation to assent to the proposed arrangement, although m starboarding and passing close to the two rear barges she did in fact take the exact course she would have taken if she had assented. If she had blown one whistle she would have indicated her intention of pursuing her course under her port wheel as the privileged vessel; while if she had blown two whistles she would have starboarded, as she did starboard, and keep as near the rear barges as she safely could. What we do decide is that the duty to answer a signal is as impera- THE NEW YORK. 207 Opinion of the Court. tive as the duty to give one. Not only does the second rule of the Supervising Inspectors require of crossing steamers that “signals by whistles shall be given and answered promptly,” but ordinary prudence demands that an obligated steamer proposing by whistle to deviate from the customary course shall receive an immediate reply, that her wheel may be at once put to starboard or port, as the exigencies of the case may require. A delay of even a few seconds may seriously embarrass her as to the intention of the preferred vessel. This is now made obligatory upon vessels navigating the Great Lakes by the act of February 8, 1895, c. 64, 28 Stat. 645, the twenty-third rule of which declares that “ every steam vessel receiving a signal from another shall promptly respond with the same signal, or as provided in rule twenty-six.” If the New York had promptly answered the Conemaugh’s signals, probably no collision would have occurred. The comments we have made upon the failure of the Conemaugh to stop and reverse are equally pertinent to the case of the New York. If she did not hear the whistles of the Conemaugh, she ought to have heard them; but irrespective of this, there was enough to apprise her of her danger in pursuing her course with unabated speed. She knew that she was about to meet in a narrow channel a steam vessel coming down upon her with the added speed given by a current of two to two and a half miles an hour. She heard her final signal of two blasts as she was passing the last barge, and should have known that if she continued her course a collision would be inevitable, and yet she did not stop or reverse. Her conduct was inexcusable. The lesson that steam vessels must stop their engines in the presence of danger, or even of anticipated danger, is a hard one to learn, but the failure to do so has been the cause of the condemnation of so many vessels that it would seem that these repeated admonitions must ultimately have some effect. We cannot impress upon the masters of steam vessels too insistently the necessity of caution in passing or crossing the course of other vessels in constricted channels. But, assuming the theory of the New York to be true, and 208 OCTOBER TERM, 1899. Opinion of the Court. that as the preferred vessel she was bound to keep her course, under rule nineteen, the fulfilment of her duty in that regard undoubtedly added to the embarrassments of the Conemaugh. It is averred in her answer that after making the white light of the Conemaugh she continued on her course so as to go around close to the last barge, and when abreast of her quarter starboarded, so as to go close under her stern. For this change in her course she relies upon the case of The John L. Hasbrouck, 93 U. S. 405, in which we held that the obligation of a privileged vessel to keep her course does not forbid such necessary variations in her course as will enable her to avoid immediate danger arising from natural obstructions to navigation. In that case a sailing vessel descending the Hudson River at West Point was held to have been excused in changing her course to round a projection at that place, but in this case the New York had still from five to eight hundred feet before her before reaching the Canadian bank. Her original porting was undoubtedly to avoid the tow, but there seems to have been no immediate necessity for her starboarding to pass so close to the rear barges, though we should not condemn her upon this ground. See discussion of this in The Velocity, L. R. 3 P. C. 44; The Banshee, 6 Asp. M. L. C. 221. While the presence of the tow undoubtedly rendered it necessary for the New York to port, and thus to become a crossing vessel, and a preferred vessel under rule nineteen, there was no obstruction to her continuing under her port wheel until she had approached so near the Canadian bank as to make it necessary to turn. The theory of the New York is an inconsistent one—as inconsistent as that of Conemaugh. She argues that she was under no obligation to assent to the signals of the Conemaugh by starboarding her helm. But she did in fact starboard her helm, and now insists that she did this in discharge of her duty as a preferred vessel to resume her course after she had cleared the obstruction. But without deciding that she was in fault for starboarding, her conduct in so doing adds another to the many reasons why she should have indicated to the descending steamer her proposed course. If the Conemaugh THE NEW YORK. 209 Opinion of the Court. recognized the fact that she were the preferred vessel and bound to hold her course, it would naturally confuse her to see the New York suddenly starboarding, exhibit both her colored lights, and point directly toward her, as she must have done. The probable explanation of the course of the New York is that the officer of her deck was so intent upon watching the lights of the barges that he omitted to notice the lights of the Conemaugh until the vessels had approached so near that a collision became extremely probable. The fact that her lights were seen and her signals heard by the crews of the Burlington and her barges and by persons standing upon the coal dock, at a greater distance from the Conemaugh than was the New York, only indicates more clearly that her lookout was either insufficient or incompetent. If he actually saw her and reported her to the officers of the deck, the responsibility is only shifted from the lookout to them. Our conclusions are that the Conemaugh was in fault: For not stopping, when the New York failed to answer her signals; For porting and then starboarding in order to cross the bow of the New York; and the New York : For an inefficient lookout; For failing to answer the repeated signals of the Conemaugh ; and For failure to stop, after she made the white light of the Conemaugh, until her course and movements had been satisfactorily ascertained. 4. The final question arises upon the insistence of the underwriters of the Conemaugh’s cargo, that they are entitled to a recovery to the full amount of their damages against the New York, notwithstanding the Conemaugh may also be in fault for the collision. They are correct in this contention. Indeed, this court has already so decided in the case of The Atlas, 93 IT. S. 302, 315, 317. This was a libel against the tlas by an insurer of the cargo of a canal boat in tow of the steam tug Kate, whereby the canal boat and her cargo were VOL. CLXXV—14 210 OCTOBER TERM, 1899. Opinion of the Court. lost. It was insisted by the claimant that, as the libellant had failed to make the Kate a party, and as both vessels were found to'be in fault for the collision, there could be a recovery of only a moiety of the damages. The case of The Milan, Lush. 388, was confidently relied upon as an authority. This court, however, was of opinion that a plaintiff, who has suffered a loss by the negligence of two parties, was at liberty, both at common law and in admiralty, to sue both wrongdoers or either one of them at his election, and “ it is equally clear, that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his loss. He may proceed against all the wrongdoers jointly, or he may sue them all or any one of them separately. . . . Co-wrongdoers, not parties to the suit, cannot be decreed to pay any portion of the damage adjudged to the libellant, nor is it a question in this case whether the party served may have process to compel the other wrongdoers to appear and respond to the alleged wrongful act.” A like ruling was made in The Juniata, 93 U. S. 337, in which a libel was filed by the United States as owner of the cargo of a flatboat in tow of one of two vessels. The decree of the Court of Appeals is therefore reversed and the case remanded to the District Court for the Eastern District of Michigan for further proceedings in consonance with this opinion. Costs will he divided equally. On the 7 th of December, 1899, this decree was reversed, the claimants of the Conemaugh and the claimants of the Mew York were ordered each to pay one half of all costs in the cause, and the cause was remanded to the District Court of the United States for the Eastern District of Michigan, with directions to enter a decree, in conformity with the opinion of this court, with interest from July 3, 1896, until paid, at the same rate per annum that decrees bear in the courts of the State of Michigan. ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 211 Syllabus. ADDYSTON PIPE AND STEEL COMPANY v. UNITED STATES. APPEAL FROM THE COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 51. Argued April 26, 27, 1899. —Decided December 4,1899. Under the grant of power to Congress, contained in Section 8 of article I of the Constitution, “ to regulate commerce with Foreign Nations and among the several States, and with Indian Tribes,” that body may enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corporations where the natural and direct effect of such a contract shall be, when carried out, to directly and not as a mere incident to other and innocent purposes, regulate to any extent interstate or foreign commerce. The provision in the Constitution regarding the liberty of the citizen is to some extent limited by this commerce clause; and the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and substantially, and not merely indirectly, remotely, incidentally and collaterally, regulate, to a greater or less degree, commerce among the States. Interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different States, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale and exchange of commodities. The power to regulate interstate commerce, and to prescribe the rules by which it shall be governed, is vested in Congress, and when that body has enacted a statute such as the act of July 2, 1890, c. 647, entitled “an act to protect trade and commerce against unlawful restraints and monopolies,” any agreement or combination which directly operates, not alone upon the manufacture, but upon the sale, transportation and delivery of an article of interstate commerce, by preventing or restricting its sale, thereby regulates interstate commerce to that extent, and thus trenches upon the power of the national legislature, and violates the statute. The contracts considered in this case, set forth in the statement of facts and in the opinion of the court, relate to the sale and transportation to other States of specific articles, not incidentally or collaterally, but as a direct and immediate result of the combination entered into by the efendants; and they restrain the manufacturing, purchase, sale or exchange of the manufactured articles among the several States, and enhance their value, and thus come within the provisions of the “ act to protect trade.and commerce against unlawful restraints and monopo- 212 OCTOBER TERM, 1899. Statement of the Case. When the direct, immediate and intended effect of a contract or combination among dealers in a commodity is the enhancement of its price, it amounts to a restraint of trade in the commodity, even though contracts to buy it at the enhanced price are being made. The judgment of the court below, which perpetually enjoined the defendants in the court below from maintaining the combination in cast-iron pipe as described in the petition, and from doing any business under such combination, is too broad, as it applies equally to commerce which is wholly within a State as well as to that which is interstate or international only. Although the jurisdiction of Congress over commerce among the States is full and complete, it is not questioned that it has none over that which is wholly within a State, and therefore none over combinations or agreements so far as they relate to a restraint of such trade or commerce: nor does it acquire any jurisdiction over that part of a combination or agreement which relates to commerce wholly within a State, by reason of the the fact that the combination also covers and regulates commerce which is interstate. This proceeding was commenced in behalf of the United States, under the so-called anti-trust act of Congress, of July 2, 1890, c. 647, 26 Stat. 209. It was undertaken for the purpose of obtaining an injunction perpetually enjoining the six corporations, who were made defendants, and who were engaged in the manufacture, sale and transportation of iron pipe at their respective places of business in the States of their residence, from further acting under or carrying on the combination alleged in the petition to have been entered into between them, and which was stated to be an illegal and unlawful one, under the act above mentioned, because it was in restraint of trade and commerce among the States, etc. The trial court dismissed the petition, 78 Fed. Rep. 712, but upon appeal to the Circuit Court of Appeals the judgment of the court below was reversed with instructions to enter a decree for the United States perpetually enjoining defendants from maintaining the combination in cast-iron pipe as described in the petition, and from doing any business under such combination. 54 U. S. App. 723. The six defendants are The Addyston Pipe and Steel Company of Cincinnati, Ohio; Dennis Long & Company, of Louisville, Kentucky; The Howard-Harrison Iron Company, of Bessemer, Alabama; The Anniston Pipe and Foundry Company, of Anniston, Ala- ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 213 Statement of the Case. bama; The South Pittsburg Pipe Works, of South Pittsburg, Tennessee, and The Chattanooga Foundry and Pipe Works, of Chattanooga, Tennessee; one company being in the State of Ohio, one in Kentucky, two in Alabama and two in Tennessee. The following are in substance the facts upon which the judgment of the Circuit Court of Appeals rested, as stated in the record: It was charged in the petition that on the 28th of December, 1894, the defendants entered into a combination and conspiracy among themselves, by which they agreed that there should be no competition between them in any of the States or Territories mentioned in the agreement, (comprising some thirty-six in all,) in regard to the manufacture and sale of cast-iron pipe, and that in obedience to such agreement and combination, and to carry out the same, the defendants had since that time operated their shops and had been selling and shipping the pipe manufactured by them into other States and Territories, under contracts for the manufacture and sale of such pipe with citizens of such other States and Territories. There was to be a “ bonus ” charged against the manufacture of the pipe, to the extent set forth in the agreements and to be paid as therein stated. The whole agreement was charged to have been entered into in order to enhance the price for the iron pipe dealt in by the defendants. The petition prayed that all pipe sold and transported from one State to another, under the combination and conspiracy described therein, be forfeited to the petitioner and be seized and confiscated in the manner provided by law, and that a decree be entered dissolving the unlawful conspiracy of defendants and perpetually enjoining them from operating under the same and from selling said cast-iron pipe in accordance therewith to be transported from one State into another. The defendants filed a joint and separate demurrer to the petition in so far as it prayed for the confiscation of goods in transit, on the ground that such proceedings under the antitrust act are not to be had in a court of equity, but in a court of law. In addition to the demurrer, the defendants filed a joint and separate answer, in which they admitted the exist- 214 OCTOBER TERM, 1899. Statement of the Case. ence of an association between them for the purpose of avoiding the great losses they would otherwise sustain, due to ruinous competition between defendants, but denied that their association was in restraint of trade, state or interstate, or that it was organized to create a monopoly, and denied that it was a violation of the anti-trust act of Congress. Testimony in the form of affidavits was submitted by petitioner and defendants, and by stipulation it was agreed that the final hearing might be had thereon. From the minutes of the association, a copy of which was put in evidence by the petitioner, it appeared that prior to December 28, 1894, the Anniston Company, the Howard-Harrison Company, the Chattanooga Company and the South Pittsburg Company had been associated as the Southern Associated Pipe Works. Upon that date the Addyston Company and Dennis Long & Co. were admitted to membership, and the following plan was then adopted : “ First. The bonuses on the first 90,000 tons of pipe secured in any territory, 16" and smaller, shall be divided equally among six shops. “Second. The bonuses on the next 75,000 tons, 30" and smaller, sizes to be divided among five shops, South Pittsburg not participating. “ Third. The bonuses of the next 40,000 tons, 36" and smaller, sizes to be divided among four shops, Anniston and South Pittsburg not participating. “ Fourth. The bonus on the next 15,000 tons, consisting of all sizes of pipe, shall be divided among three shops, Chattanooga, South Pittsburg and Anniston not participating. “ The above division is based on the following tonnage of capacity: South Pittsburg.............................15,000 tons. Anniston............................. 30,000 tons. Chattanooga...........................40,000 tons. Bessemer..............................45,000 tons. Louisville............................45,000 tons. Cincinnati............................45,000 tons. ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 215 Statement of the Case. “ When the 220,000 tons have been made and shipped and the bonuses divided as hereafter provided, the auditor shall set aside into a reserve fund all bonuses arising from the excess of shipments over 220,000 tons, and shall divide the same at the end of the year among the respective companies according to the percentage of the excess of tonnage they may have shipped (of the sizes made by them) either in pay or free territory. It is also the intention of this proposition that the bonuses on all pipe larger than 36 inches in diameter shall be divided equally between the Addyston Pipe and Steel Company, Dennis Long & Co. and the Howard-Harrison Company. “It was thereupon resolved: “ First. That this agreement shall last for two years from the date of the signing of same, until December 31, 1896. “Second. On any question coming before the association requiring a vote, it shall take five affirmative votes thereon to carry said question, each member of this association being entitled to but one vote. “ Third. The Addyston Pipe and Steel Company shall handle the business of the gas and water companies of Cincinnati, Ohio, Covington and Newport, Ky., and pay the bonus hereafter mentioned, and the balance of the parties to this agreement shall bid on such work such reasonable prices as they shall dictate. “Fourth. Dennis Long & Company, of Louisville, Ky., shall handle Louisville, Ky., Jeffersonville, Ind., and New Albany, Ind., furnishing all the pipe for gas and water works in above-named cities. “Fifth. The Anniston Pipe and Foundry Company shall handle Anniston, Ala., and Atlanta, Ga., furnishing all pipe for gas and water companies in above-named cities. “Sixth. The Chattanooga Foundry and Pipe Works shall handle Chattanooga, Tenn., and New Orleans, La., furnishing all gas and water pipe in above-named cities. “ Seventh. The Howard-Harrison Iron Company shall handle Bessemer and Birmingham, Ala., and St. Louis, Mo., furnishing all pipe for gas and water companies in the 216 OCTOBER TERM, 1899. Statement of the Case. above-named cities; extra bonus to be put on East St. Louis and Madison, Ill., so as to protect the prices named for St. Louis, Mo. “ Eighth. South Pittsburg Pipe Works shall handle Omaha, Neb., on all sizes required by that city during the year of 1895, conferring with the other companies and cooperating with them; thereafter they shall handle the gas and water companies of Omaha,, Neb., on such sizes as they make. “ Note. — It is understood that all the shops who are members of this association shall handle the business of the gas and water companies of the cities set apart for them, including all sizes of pipe made by them. “The following bonuses were adopted for the different States as named below: All railroad or culvert pipe or pipe for any- drainage or sewerage purposes on 12" and larger sizes shipped into bonus territory shall pay a bonus of $1.00 per ton. On all sizes below 12" and shipped into ‘bonus territory ’ for the purposes above named, there shall be a bonus of $2.00 per ton. List of Bonuses. Alabama........$3 00 S. D............$2 00 Ky.................$2 00 B’gham, Ala.... 2 00 Florida......... 1 00 La................. 3 00 Anniston, Ala... 2 00 Georgia......... 2 00 Miss................4 00 Mobile, Ala.... 1 00 Atlanta, Ga..... 2 00 Mo..................2 00 Arizona Ter.... 3 00 Ga. coast p’ts... 1 00 Montana........ 3 00 California..... 1 00 Idaho........... 2 00 Nebraska........3 00 Colorado....... 2 00 Nev...... ....... 3 00 N. Mex............. 3 00 Ind. Ter....... 3 00 Oklahoma........ 3 00 S. C.......... 1 North C........ 1 00 Wis............. 2 00 Minn............... 2 00 Tenn., east of C’land.......... 2 00 Texas, interior.. 3 00 Tenn., middle and west............ 3 00 Texas coast..... 1 00 Illinois, except Madison and East St. Louis, as previously provided... 2 00 Wyoming........ 4 00 Wash’ton Ter... 1 00 Utah............4 00 Oregon ......... 1 00 Michigan........ 1 50 • Indiana.......2 00 Ohio............ 1 50 West Va......... 1 00 Iowa............2 00 N. D............ 2 00 Kansas........... 2 00 All other territory free. “ On motion of Mr. Llewellyn, the bonuses on all city work as specially reserved shall be $2.00 per ton.” ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 217 Statement of the Case. The States for sale in which bonuses had to be paid into the association were called “ pay ” territory as distinguished from “ free ” territory in which defendants were at liberty to make sales without restriction and without paying any bonus. The by-laws provided for an auditor of the association, whose duty it was to keep account of the business done by each shop both in pay and free territory. On the 1st and 16th of each month he was required to send to each shop “ a statement of all shipments reported in the previous half month, with a balance sheet showing the total amount of the premiums on shipments, the division of the same and debt credit balance of each company.” The system of bonuses as a means of restricting competition and maintaining prices was not successful. A change was therefore made by which prices were to be fixed for each contract by the association, and except in reserved cities, the bidder was determined by competitive bidding of the members, the one agreeing to give the highest bonus for division among the others getting the contract. The plan was embodied in a resolution passed May 27, 1895, in the words following: “ Whereas, the system now in operation in this association of having a fixed bonus on the several States has not in its operation resulted in the advancement in the prices of pipe as was anticipated, except in reserved cities, and some further action is imperatively necessary in order to accomplish the ends for which this association was formed: Therefore, be it resolved, that from and after the first day of June, that all competition on the pipe lettings shall take place among the various pipe shops prior to the said letting. To accomplish this purpose it is proposed that the six competitive shops have a representative board located at some central city to whom all inquiries for pipe shall be referred, and said board shall fix the price at which said pipe shall be sold, and bids taken from the respective shops for the privilege of handling the order, and the party securing the order shall have the protection of all the other shops.” In pursuance of the new plan it was further agreed “that all parties to this association having quotations out shall 218 OCTOBER TERM, 1899. Statement of the Case. notify their customers that the same will be withdrawn by June 1, 1895, if not previously accepted, and upon all business accepted on and after June 1st bonuses shall be fixed by the committee.” At the meeting of December 19, 1895, it was moved and carried that upon all inquiries for prices from “reserved cities ” for pipe required during the year of 1896, prices and bonuses should be fixed at a regular or called meeting of the principals. At the meeting of December 20, 1895, the plan for division of bonuses originally adopted was modified by making the basis the total amounts shipped into “ pay ” territory rather than the totals shipped into “ pay ” and “ free ” territory. To illustrate the mode of doing business the following excerpt from the minutes of the meetings of December 20, 1895, February 14, 1896, and March 13, 1896, is given: “ It was moved to sell the 519 pieces of 20" pipe from Omaha, Neb., for $23.40, delivered. Carried. It was moved that Anniston participate in the bonus and the job be sold over the table. Carried. Pursuant to the motion, the 519 pieces of 20" pipe for Omaha was sold to Bessemer at a premium of $8. “ Moved that ‘ bonus ’ on Anniston’s Atlanta water works contract be fixed at $7.10, provided freight is $1.60 a ton. Carried.” An illustration of the manner in which “ reserved ” cities were dealt with may be seen in the case of a public letting at St. Louis. On February 4,1896, the water department of that city let bids for 2800 tons of pipe. St. Louis was “ reserved ’’ to the Howard-Harrison Company of Bessemer, Alabama. The price was fixed by the association at $24 a ton, and the bonus at $6.50. Before the letting the vice president of this company wrote to the other members of the association under date of January 24, 1896, as follows : “ I write to say that in view of the fact that I do not as yet know what the drayage will be on this pipe, I prefer that if any of you find it necessary to put in a bid without going to St. Louis, please bid not less than $27 for the pipe, and 2j ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 219 Statement of the Case. cents per pound for the specials. I would also like to know as to which of you would find it convenient to have a representative at the letting. It will be necessary to have two outside bidders.” The contract was let to the Howard-Harrison Company of Bessemer, at $24, who allowed the Shickle, Harrison and Howard Company, a pipe company of St. Louis, not in the association, but having the same president as the Howard-Harrison Company of Bessemer, to fill part of the order. The only other bidders were the Addyston Pipe and Steel Company, and Dennis Long & Co., the former bidding $24.37 and the latter $24.57. The evidence shows that the Chattanooga foundry could have furnished this pipe, delivered in St. Louis, at from $17 to $18, and could have made a profit on it at that price. The record is full of instances of a similar kind, in which, after the successful bidder had been fixed by the “auction pool,” or had been fixed by the arrangement as to “reserve” cities, the other defendants put in bids at the public letting as high as the selected bidder requested, in order to give the appearance of active competition between defendants. In January, 1896, after the auction pool had been in operation for more than six months, the Chattanooga Company wrote a letter to its representative in the central committee. The letter is dated January 2, 1896, and is as follows: “ Dear Sir : Referring to our policy for 1896, in bidding on pipe, we have had this matter under consideration for some time past, and from the information obtained from Mr. Thornton’s statement as to the amount of business done last year in pay territory and from estimates that we have made for business, that will come into that territory for 1896, we have been able to determine to what point we could bid on work and take contracts, and if bonus is forced above this point, let it go and take the bonus. We note from your letter of yesterday that you have sized up the situation in its essential points, and it agrees exactly with our ideas on the subject. It is useless to argue that Howard-Harrison Iron Co., 220 OCTOBER TERM, 1899. Statement of the Case. Cincinnati, and other shops, who have been bidding bonuses of $6 or $8 per ton, can come out and make any money if they continue to bid such bonus. In the case of the Howard-Harrison Iron Co., people on Jacksonville, Fla. The truth of the business is they are losing money at the prices they bid for this work. If they take the contract at $19 delivered, it will only net $16 at the shop after they have paid back the bonus of $4.75; if they should continue to buy all the pipe that goes up to such figures as they have paid for Jacksonville and other points, they would wreck their shop in a few months. However, they of course calculate this bonus will be returned to them on work taken by other shops. We are very much pleased with the bonus that has been paid and we only hope they will keep it up as it is only money in our pockets. As long as there is no money to us let them make the pipe, as we shall continue to do so. “ For the present you will adopt the following basis: “ On 16" and under standard weights, $14.25 at shop. “ On 18" and 36" standard weights, $13. il On 16" and under light weights, $14.50 to $14.75 at shop. “That is, you will bid all over $13, $14.25 and $14.50 on wrork. If we get work at these prices it will be satisfactory. If the others run bonus above this point let them take it, as it will be more money to us to take the bonus. “We note Mr. Thornton’s report of average premiums from June 1st to December, that the average was $3.63. The average bonuses that are prevailing to-day are $7 to $8. We cannot expect this to continue, and we think your estimate of $6 ton average bonus is high — as we do not believe the premiums of ’96 will average that price, unless there is a decided change for the better in business. We find there were sold and shipped into pay territory from January 1, 1895, to date, including the 40,000 tons of old business that did not pay a bonus, about 188,000 tons, and we think a very conservative estimate of shipments into this territory will amount to fully 200,000 this year; more than that, probably overrun 240,000 tons, from the fact that the city of Chicago and several other places that annually use large quantities of pipe were not in the market ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 221 Statement of the Case. last year, or last season, from the fact that they were out of funds. On the basis as given you above, if the demand should reach 220,000 tons, which would give us our entire 40,000 tons, provided we did no business, then the association would pay us the average 4 bonus,’ which might be from $3.50 to $5 on our 40,000. If we cannot secure business in 4 pay territory ’ at paying prices, we think we will be able to dispose of our output in 4 free territory,’ and of course make some profit on that. 44 At the prices that Howard-Harrison people paid for Jacksonville, Des Plaines and one or two other points, they are losing from $2.50 to $3 per ton, that is, provided 4 bonuses ’ would not be returned to them. Therefore when business goes at a loss, we are willing that other shops make it.” Another letter was written by the same company pending a trouble over a letting at Atlanta. The Anniston Company to whom Atlanta had been 44 reserved ” made its bid so high ($24) that a Philadelphia pipe firm, R. D. Wood & Co., had been able to underbid the Anniston Company in spite of difference in freights. All the bids had been rejected as too high, and upon a second letting Anniston’s bid was $1.25 a ton less, and the job was awarded to it. The charge was then made by Atlanta persons that there was a 44 trust ” or “combine.” This was vigorously denied. The letter of the Chattanooga Company evoked by this difficulty was dated February 25, 1896, and reads as follows: 44 Gentlemen : We are in receipt of a carbon copy of your favor of the 24th instant to F. B. Nichols, V. P., in reference to Atlanta, Ga. We certainly regret that the matter has assumed its present shape, and that R. D. Wood & Company should make a lower bid by one dollar a ton than the southern shops. You know we have always been opposed to special customers and 4 reserved cities,’ we do not think that it is the right principle and we believe if the present association continues, that all special customers and 4 reserved cities ’ should he wiped out; there is no good reason why we should be allowed to handle New Orleans, you Atlanta, Howard-Har- 222 OCTOBER TERM, 1899. Statement of the Case. rison Iron Co., St. Louis, or South Pittsburg, Omaha. We are not in the business to award special privileges to any foundry, and we believe that the result would be more benefit to all concerned if all business was made competitive. It is hardly right, and we believe if you will think over the matter carefully you will concede it, for us to be put into a position of being unable to make prices or furnish pipe for the city of Atlanta, when we have always heretofore had a large share of their trade. We cannot explain our position to the Atlanta people and we consider it is detrimental to our business, and think no combination should have the power to force us into such a position. The same argument will apply with you as to New Orleans, St. Louis and other places. We think this matter should be considered seriously and some action taken that will result in reestablishing ourselves (I mean the four southern shops) in the confidence of the Atlanta people. Wistar, R. D. Wood & Company’s man, has no doubt told them all about our association, or as much as he could guess, and has worked up a very bitter feeling against us. The very fact that you have been protected and have had all their business for the past two years is proof to them that such a ‘ combination ’ exists, and they state that if they find out positively that we are working together, they will never receive a bid from any one of us again. We cannot afford to leave these people under that impression, and something ought to be done that would disprove Mr. Wistar’s statement to them. We believe that all business ought to be competitive. The fact that certain shops have certain cities ‘reserved’ is all based upon mere sentiment, and no good reason exists why it should be so. We believe that, as a general thing, we have had our prices entirely too high, and especially do we believe this has been the case as to prices in ‘reserved cities.’ The prices made at St. Louis and Atlanta are entirely out of all reason, and the result has been and always will be, when high prices are named, to create a bad feeling and an agitation against the. ‘combination.’ There is no reason why Atlanta, New Orleans, St. Louis or Omaha should be made to pay higher prices for their pipe than other places near ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 223 Statement of the Case. them, who do not use anything like the amount of pipe and whose trade is not as desirable for many other reasons. There is no sentiment existing with us in reference to Atlanta, as we would as soon sell our pipe anywhere else, only as stated above, it is wrong in principle that we should be forced to give up Atlanta or any other point for no good reason that we know of.” It appears quite clearly from the prices at which the Chattanooga and the South Pittsburg Companies offered pipe in “ free ” territory that any price which would net them from $13 to $15 a ton at their foundries would give them a profit. Pipe was freely offered by the defendants in “ free ” territory more than five hundred miles from their foundries at less prices than their representative boards fixed prices for jobs let in cities in “pay” territory nearer to defendants’ foundries by three hundred miles or more. The defendants adduced many affidavits of a formal type, chiefly from persons who had been buying pipe from defendants and other companies, who testified in a general way that the prices at which the pipe had been offered by defendants all over the country had been reasonable, but in not one of the affidavits was any attempt made to give figures as to cost of production and freight, and in not a single case were the specific instances shown by the evidence for the petitioner disputed. There was some evidence as to the capacity of the defendants’ mills. The division of bonuses was based on an aggregate yearly output of 220,000 tons, but there are averments in the answer that indicate that this was not a statement of the actual limit of capacity, but was only taken as a standard of restricted output upon which to calculate an equitable division of bonuses. Nowhere in the large mass of affidavits is there any statement of the per diem capacity of the defendants’ mills. Taking their aggregate capacity, however, as 220,000 tons, that of the other mills in the “ pay ” territory was 170,500 tons, and that of the mills in the “ free ” territory was 348,000 tons, according to the affidavit of the chief officer of one of the defendants. Of the non-association mills in the 224 OCTOBER TERM, 1899. Statement of the Case. “ pay ” territory one was at Pueblo, Colorado, another was in the state penitentiary at Waco, Texas, and a third in Oregon. Their aggregate annual capacity was 45,500 tons. Another non-association mill was the Shickle, Howard-Harrison mill of St. Louis, Missouri, with a capacity of 12,000 tons. John W. Harrison, who was president of this company, was also president of the Howard-Harrison mill at Bessemer, Alabama, which was a member of the association, and it appears that an order taken by the Bessemer mill at St. Louis was partly filled by the St. Louis mill. The other mills in the “pay” territory were one at Columbus, Ohio, with an annual capacity of 30,000 tons, one at Cleveland, Ohio, of 60,000 tons, one at New Comerstown, in northeastern Ohio, of 8000 tons, and one at Detroit, Michigan, of 15,000 tons, and their aggregate annual capacity was 113,000 tons. In the “free” territory there was one mill in eastern Virginia with an annual capacity of 16,000 tons, four mills in eastern Pennsylvania with a capacity of 87,000 tons, three mills in New Jersey with a capacity of 210,000 tons, and two mills at New York, one at Utica and another at Buffalo, with an aggregate capacity of 35,000 tons. The evidence was scanty as to rates of freight upon iron pipes, but enough appeared to show that the advantage in freight rates which the defendants had over the large pipe foundries in New York, eastern Pennsylvania and New Jersey in bidding on contracts to deliver pipe in nearly all of the “ pay ” territory varied from $2.00 to $6.00 a ton, according to the location. The defendants filed the affidavits of their managing officers, in which they stated generally that the object of their association was not to raise prices beyond what was reasonable, but only to prevent ruinous competition between defendants which would have carried prices far below a reasonable point; that the bonuses charged were not exorbitant profits and additions to a reasonable price, but they were deductions from a reasonable price in the nature of a penalty or burden intended to curb the natural disposition of each member to get all the business possible and more than his due proportion ; that the prices fixed by the association were always reasonable and ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 225 Argument for Appellants. were always fixed, as they must have been, with reference to the very active competition of other pipe manufacturers for every job; that the reason why they sold pipe at so much cheaper rates in the “ free” territory than in the “ pay” territory was because they were willing to sell at a loss to keep their mills going rather than to stop them ; that the prices at a city like St. Louis, in which the specifications were detailed and precise, were higher because pipe had to be made especially for the job and they could not use stock on hand. Mr. Frank Spurlock (with whom was Mr. Foster V. Brown on his brief) and Mr. John W. Warrington for appellants, cited in their briefs: Printing and Numerical Beg. Co. v. Sampson, L. R. 19 Eq. 462, 465; Bousillon v. Rousillon, 14 Ch. Div. 351, 365; National Benefit Co. v. Union Hospital Co., 45 Minnesota, 272; Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64, 68; Oakdale Manufacturing Co. v. Garst, 18 R. I. 484; Tode v. Gross, 127 N. Y. 480; Shrainka v. Scharringhausen, 8 Mo. App. 522; Beal v. Chase, 31 Michigan, 490; Dolph v. Troy Laundry Machinery Co., 28 Fed. Rep. 553; & C., 138 U. S. 617; Kellogg v. Larkin, 3 Pinney, (Winconsin,) 123; Dueber Watch Case Manufacturing Co. v. E. Howard Watch cfe Clock Co., 35 U. S. App. 16; Central Shade Boiler Co. v. Cushman, 143 Mass. 353; Diamond Match Co. v. Boeber, 106 N. Y. 473; Leslie n. Lorillard, 110 N. Y. 519; Gibbs v. Baltimore Gas Co., 130 U. S. 396; Ended States v. Trans Missouri Freight Asdn, 166 U. S. 290; Eastman v. Clark, 53 N. H. 276; Mayrant v. Marston, 67^ Alabama, 453; Fay n. Davidson, 13 Minnesota, 523; Wickens v. Evans, 3 Younge & Jervis, 318; Nat. Benefit Co. v. Union Hospital Co., 45 Minnesota, 272; Hubbard v. Miller, Michigan, 15; Bobbins v. Shelby County Taxing District, 120 U. S. 489; Emert v. Missouri, 156 U. S. 296; Asher v. Texas, 128 U. S. 129; Stoutenburgh v. Hennick, 129 U. S. 141; Brennan v. Titusville, 153 U. S. 289, 307; Hopkins v, nited States, 171 U. S. 578; Bohn Manufacturing Co. v, Eollis, 54 Minnesota, 223; United States v. E. C. Knight Co., 156 U. S. 1; Brown n. Maryland, 12 Wheat. 419; State VOL. CLXXV—15 226 OCTOBER TERM, 1899. Opinion of the Court. Freight Tax case, 15 Wallace, 232; Coe n. Errol, 116 IT. S. 517; Kidd v. Pearson, 128 U. S. 1; Welton n. Missouri, 91 U. S. 275 ; In re Greene, 52 Fed. Rep. 104; Paul n. Virginia, 8 Wall. 168; Civil Rights cases, 109 IT. S. 3; In re Dels, 158 U. S. 564; ■ Scudder v. Union Natd Bank, 91 U. S. 406; United States n. De Witt, 9 Wall. 41; License Tax cases, 5 Wall. 462; In re Rahrer, 140 IT. S. 545; Patterson v. Kentucky, 97 IT. 8. 501; Barron v. Baltimore, 1 Pet. 243; Monongahela Nam. Co. v. United States, 148 IT. S. 312; Munn v. Illinois, 94 IT. 8. 113; Budd v. New York, 143 U. S. 517; United States v. Joint Traffic Association, 171 IT. S. 505; Anderson v. United States, 171 U. S. 604; N. Y., Lake Eide <& Western Railroad n. Pennsylvania, 158 U. S. 431; Pittsburgh & Southern Coal Co. v. Bates, 156 U. S. 577; Adams Express Co. v. Ohio, 165 IT. 8. 194; S. C., 166 IT. S. 185; Brennan v. Titusville, 153 IT. 8. 289; Pettibone v. United States, 148 IT. S. 197; Powell v. Pennsylvania, 127 IT. S. 678 ; Railroad Co. v. Richmond, 19 Wall. 584; Munn v. Illinois, 94 IT. S. 113; Dow v. Beidelman, 125 IT. S. 680; Budd v. New York, 143 IT. S. 517; Packet Co. v. Keokuk, 95 U. S. 80; Allgeyer v. Louisiana, 165 IT. S. 578; Butchers’ Union Co. v. Crescent City Co., Ill IT. S. 746; Boyd v. United States, 116 IT. S. 616. Mr. Solicitor General for the United States. Mr. Justice Peckham, after stating the case, delivered the opinion of the court. The foregoing statement, which has been mainly taken from that preceding the opinion of Circuit Judge Taft, delivered in this case in the Circuit Court of Appeals, comprises, as we think, all that is essential to the discussion of the questions arising in this case, and we believe the statement to be fully borne out as to the facts, by the evidence set forth in the record. Assuming, for the purpose of the argument, that the contract in question herein does directly and substantially operate as a restraint upon and as a regulation of interstate commerce, jt is yet insisted by the appellants at the threshold of the ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 227 Opinion of the Court. inquiry that by the true construction of the Constitution, the power of Congress to regulate interstate commerce is limited to its protection from acts of interference by state legislation or by means of regulations made under the authority of the State by some political subdivision thereof, including also Congressional power over common carriers, elevator, gas and water companies, for reasons stated to be peculiar to such carriers and companies, but that it does not include the general power to interfere with or prohibit private contracts between, citizens, even though such contracts have interstate commerce for their object, and result in a direct and substantial obstruction to or regulation of that commerce. This argument is founded upon the assertion that the reason for vesting in Congress the power to regulate commerce was to insure uniformity of regulation against conflicting and discriminating state legislation; and the further assertion that the Constitution guarantees liberty of private contract to the citizen at least upon commercial subjects, and to that extent the guaranty operates as a limitation on the power of Congress to regulate commerce. Some remarks are quoted from the opinions of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, and Brown v. Maryland, 12 Wheat. 419, and from the opinions of other justices of this court in the cases of The State Freight Tax, 15 Wall. 232, 275 ; Railroad Company v. Richmond, 19 Wall. 584, 589; Welton v. Missouri, 91 U. S. 275, 280; Mobile County v. Kimball, 102 U. S. 691, 697, and Kidd v. Pearson, 128 U. S. 1, 21, all of which are to the effect that the object of vesting in Congress the power to regulate interstate commerce was to insure uniformity of regulation against conflicting and discriminating state legislation. The further remark is quoted from Railroad Company v. Richmond, supra, that the power of Congress to regulate commerce was never intended to be exercised so as to interfere with private contracts not designed at the time they were made to create impediments to such commerce. It is added that the proof herein shows that the contract in this case was not so designed. It is undoubtedly true that among the reasons, if not the 228 OCTOBER TERM, 1899. Opinion of the Court. strongest reason, for placing the power in Congress to regulate interstate commerce, was that which is stated in the extracts from the opinions of the court in the cases above cited. The reasons which may have caused the framers of the Constitution to repose the power to regulate interstate commerce in Congress do not, however, affect or limit the extent of the power itself. In Gibbons v. Ogden, {supra,} the power was declared to be complete in itself, and to acknowledge no limitations other than are prescribed by the Constitution. ITnder this grant of power to Congress, that body, in our judgment, may enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corporations where the natural and direct effect of such a contract will be, when carried out, to directly, and not as a mere incident to other and innocent purposes, regulate to any substantial extent interstate commerce. (And when we speak of interstate we also include in our meaning foreign commerce.) We do not assent to the correctness of the proposition that the constitutional guaranty of liberty to the individual to enter into private contracts limits the power of Congress and prevents it from legislating upon the subject of contracts of the class mentioned. The power to regulate interstate commerce is, as stated by Chief Justice Marshall, full and complete in Congress, and there is no limitation in the grant of the power which excludes private contracts of the nature in question from the jurisdiction of that body. Nor is any such limitation contained in that other clause of the Constitution which provides that no person shall be deprived of life, liberty or property without due process of law. It has been held that the word “ liberty,” as used in the Constitution, was not to. be confined to the mere liberty of person, but included, among others, a right to enter into certain classes of contracts for the purpose of enabling the citizen to carry on his business. AUgeyer Louisiana, 165 IT. S. 578; United States v. Joint Traffic Association, 171 IT. S. 505, 572. But it has never been, and in our opinion ought not to be, held that the word included ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 229 Opinion of the Court. the right of an individual to enter into private contracts upon all subjects, no matter what their nature and wholly irrespective (among other things) of the fact that they would, if performed, result in the regulation of interstate commerce and in the violation of an act of Congress upon that subject. The provision in the Constitution does not, as we believe, exclude Congress from legislating with regard to contracts of the above nature while in the exercise of its constitutional right to regulate commerce among the States. On the contrary, we think the provision regarding the liberty of the citizen is, to some extent, limited by the commerce^clause of the Constitution, and that the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and substantially, and not merely indirectly, remotely, incidentally and collaterally, regulate to a greater or less degree commerce among the States. We cannot so enlarge the scope of the language of the Constitution regarding the liberty of the citizen as to hold that it includes or that it was intended to include a right to make a contract which in fact restrained and regulated interstate commerce, notwithstanding Congress, proceeding under the constitutional provision giving to it the power to regulate that commerce, had prohibited such contracts. While unfriendly or discriminating legislation of the several States may have been the chief cause for granting to Congress the sole power to regulate interstate commerce, yet we fail to find in the language of the grant any such limitation of that power as would exclude Congress from legislating on the subject and prohibiting those private contracts which would directly and substantially, and not as a mere incident, regulate interstate commerce. If certain kinds of private contracts do directly, as already stated, limit or restrain, and hence regulate interstate com-merce, why should not the power of Congress reach those contracts just the same as if the legislation of some State had enacted the provisions contained in them ? The private contracts may in truth be as far reaching in their effect upon 230 OCTOBER TERM, 1899. Opinion of the Court. interstate commerce as would the legislation of a single State of the same character. In the Delis case, 158 IT. S. 564, it was said by Mr. Justice Brewer, speaking for the court: “ It is curious to note the fact that in a large proportion of the cases in respect to interstate commerce brought to this court the question presented was of the validity of state legislation in its bearing upon interstate commerce, and the uniform course of decision has been to declare that it is not within the competency of a State to legislate in such a manner as to obstruct interstate commerce. If a State, with its recognized power of sovereignty, is impotent to obstruct interstate commerce, can it be that any mere voluntary association of individuals within the limits of that State has a power which the State itself does not possess ? ” What sound reason can be given why Congress should have the power to interfere in the case of the State, and yet have none in the case of the individual ? Commerce is the important subject of consideration, and anything which directly obstructs and thus regulates that commerce which is carried on among the States, whether it is state legislation or private contracts between individuals or corporations, should be subject to the power of Congress in the regulation of that commerce. The power of Congress over this subject seems to us much more important and necessary than the liberty of the citizen to enter into contracts of the nature above mentioned, free from the control of Congress, because the direct results of such contracts might be the regulation of commerce among the States, possibly quite as effectually as if a State had passed a statute of like tenor as the contract. The liberty of contract in such case would be nothing more than the liberty of doing that which would result in the regulation, to some extent, of a subject which from its general and great importance has been granted to Congress as the proper representative of the nation at large. Regulation, to any substantial extent, of such a subject by any other power than that of Congress, after Congress has itself acted thereon, even ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 231 Opinion of the Court. though such regulation is effected by means of private contracts between individuals or corporations, is illegal, and we are unaware of any reason why it is not as objectionable when attempted by individuals as by the State itself. In both cases it is an attempt to regulate a subject which, for the purpose of regulation, has been, with some exceptions, such as are stated in Mobile County v. Kimball, 102 U. S. 691, 697; Morgan v. Louisiana, 118 IT. S. 455, 465; Bowman v. Chicago & M W. Railway, 125 U. S. 465; Western Union Telegraph Co. n. James, 162 IT. S. 650, 655, exclusively granted to Congress; and it is essential to the proper execution of that power that Congress should have jurisdiction as much in the one case as in the other. It is, indeed, urged that to include private contracts of this description within the grant of this power to Congress is to take from the States their own power over the subject, and to interfere with the liberty of the individual in a manner and to an extent never contemplated by the framers of the Constitution, and not fairly justified by any language used in that instrument. If Congress has not the power to legislate upon the subject of contracts of the kind mentioned, because the constitutional provision as to the liberty of the citizen limits, to that extent, its power to regulate interstate commerce, then it would seem to follow that the several States have that power, although such contracts relate to interstate commerce, and, more or less, regulate it, If neither Congress nor the state legislatures have such power, then we are brought to the somewhat extraordinary position that there is no authority, state or national, which can legislate upon t e subject of or prohibit such contracts. This cannot be the case. 1 it should be held that Congress has no power and the state legislatures have full and complete authority to thus ar regulate interstate commerce by means of their control over private contracts between individuals or corporations, en the legislation of the different States might and probably ^ou d differ in regard to the matter, according to what each a e might regard as its own particular interest. One State 232 OCTOBER TERM, 1899. Opinion of the Court. might condemn all kinds of contracts of the class described, while another might permit the making of all of them, while still another mignt permit some and prohibit others, and thus great confusion would ensue, and it would be difficult in many cases to know just what law was applicable to any particular contract regarding and regulating interstate commerce. At the same time contracts might be made between individuals or corporations of such extent and magnitude as to seriously affect commerce among the States. These consequences would seemingly necessarily follow if it were decided that the state legislatures had control over the subject to the extent mentioned. It is true, so far as we are informed, that no state legislature has heretofore authorized by affirmative legislation the making of contracts upon the matter of interstate commerce of the nature now under discussion. Nor has it, in terms, condemned them. The reason why no state legislation upon the subject has been enacted has probably been because it was supposed to be a subject over which state legislatures had no jurisdiction. If it should be decided that they have, then the course of legislation of the different States on this subject would probably be as varied as we have already indicated. On the other hand, if it be true that in no event could a state legislature enact a law affirmatively authorizing such contracts, (even if Congress had no jurisdiction over the subject,) because in so doing it would to a greater or less extent itself thereby, though indirectly, regulate interstate commerce, then the question whether such contracts were legal without legislative sanction would depend upon the decisions of the various state courts having jurisdiction in the cases, and in that event, as the same question might arise in different States, there would be great probability of inconsistent and contradictory decisions among the courts of the different States, and that, too, upon questions of contracts amounting to the regulation of interstate commerce. It is true that under our system of government there are numerous subjects over whic the States have exclusive jurisdiction, resulting in the enact- ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 233 Opinion of the Court. ment of different laws upon the same subject in various States, and also in varying and inconsistent judicial judgments in the different States upon the same subject. That condition has never been regarded as an end in itself desirable. It undoubtedly results in some confusion as to the law applicable to the particular case, and in many instances thereby increases the cost and renders doubtful the result of the litigation arising under such circumstances. They are results and the necessary accompaniment of the division of sovereignty between the States on the one hand and the Federal Government on the other, and yet the enormous and inestimable benefits arising from the existence of separate, independent and sovereign States have completely submerged the comparatively minor evils of inconsistent judgments and different laws upon many of the subjects over which the States have exclusive jurisdiction. But upon the matter of interstate and foreign commerce and the proper regulation thereof, the subject being not alone national but international in its character, the great importance of having but one source for the law which regulates that commerce throughout the length and breadth of the land cannot in our opinion be overestimated. Each State in that event would have complete jurisdiction over the commerce which was wholly within its own borders, while the jurisdiction of Congress, under the provisions of the Constitution, over interstate commerce would be paramount, and would include therein jurisdiction over contracts of the nature we have been discussing. The remark in Railroad Company v. Richmond, (supra,) that it was never intended that the power of Congress should be exercised so as to interfere with private contracts not designed at the time they were made to create impediments to interstate commerce, when read in connection with the facts stated in the report, is entirely sound. It therein appears that a contract had been made between the parties, as to the erection of an elevator and the business to be done by it, which contract was valid when made. Subsequently Congress passed acts relating to the construction of bridges over rivers and streams and authorizing railroads to carry pas- 234 OCTOBER TERM, 189$. Opinion of the Court. sengers on their way from one State to another. The railroad company becoming tired of its contract with the elevator company, desired to take advantage of this legislation and contended that under it, the contract which it had theretofore made with the elevator company became void as an obstacle to or a regulation of commerce. The court held that contracts which were valid when made continue valid and capable of enforcement, so long, at least, as peace lasts between the governments of the contracting parties, notwithstanding a change in the condition of business which originally led to their creating. It was then added that it never was intended that the power of Congress should be exercised so as to interfere with private contracts not designed at the time they were made to create impediments to interstate commerce. There is no intimation in this remark that Congress has no power to legislate regarding those contracts which do directly regulate and restrain interstate commerce. The inference is quite the reverse, and it is plain that the case assumes if private contracts when entered into do directly interfere with and regulate interstate commerce, Congress had power to condemn them. If the necessary, direct and immediate effect of the contract be to violate an act of Congress and also to o restrain and regulate interstate commerce, it is manifestly immaterial whether the design to so regulate was or was not in existence when the contract was entered into. In such case the design does not constitute the material thing. The fact of a direct and substantial regulation is the important part of the contract, and that regulation existing, it is unimportant that it was not designed. Where the contract affects interstate commerce only incidentally and not directly, the fact that it was not designed or intended to affect such commerce is' simply an additional reason for holding the contract valid and not touched by the act of Congress. Otherwise the design prompting the execution of a contract pertaining to and directly affecting, and more or less regulating, interstate commerce is of no importance. We conclude that the plain language of the grant to Congress of power to regulate commerce among the several ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 235 Opinion of the Court. States includes power to legislate upon the subject of those contracts in respect to interstate or foreign commerce which directly affect and regulate that commerce, and we can find no reasonable ground for asserting that the constitutional provision as to the liberty of the individual limits the extent of that power as claimed by the appellants. We therefore think the appellants have failed in their contention upon this branch of subject. We are thus brought to the question whether the contract or combination proved in this case is one which is either a direct restraint ora regulation of commerce among the several States or with foreign nations contrary to the act of Congress. It is objected on the part of the appellants that even if it affected interstate commerce the contract or combination was only a reasonable restraint upon a ruinous competition among themselves, and was formed only for the purpose of protecting the parties thereto in securing prices for their product that were fair and reasonable to themselves and the public. It is further objected that the agreement does not come within the act because it is not one which amounts to a regulation of interstate commerce, as it has no direct bearing upon or relation to that commerce, but that on the contrary the case herein involves the same principles which were under consideration in United States v. E. C. Knight Company, 156 U. S. 1, and, in accordance with that decision, the bill should be dismissed. Referring to the first of these objections to the maintenance of this proceeding, we are of opinion that the agreement or combination was not one which simply secured for its members fair and reasonable prices for the article dealt in by them. Even if the objection thus set up would, if well founded in fact, constitute a defence, we agree with the Circuit Court of Appeals in its statement of the special facts upon this branch of the case and with its opinion thereon as set forth by Circuit Judge Taft, as follows : ‘ The defendants being manufacturers and vendors of cast-iron pipe entered into a combination to raise the prices for pipe for all the States west and south of New York, Pennsylvania 236 OCTOBER TERM, 1899. Opinion of the Court. and Virginia, constituting considerably more than three quarters of the territory of the United States, and significantly called by the associates ‘ pay ’ territory. Their joint annual output was 220,000 tons. The total capacity of all the other cast-iron pipe manufacturers in the ‘ pay ’ territory was 170,500 tons. Of this, 45,000 tons was the capacity of mills in Texas, Colorado and Oregon, so far removed from that part of the ‘ pay ’ territory where the demand was considerable that necessary freight rates excluded them from the possibility of competing, and 12,000 tons was the possible annual capacity of a mill at St. Louis, which was practically under the same management as that of one of the defendants’ mills. Of the remainder of the mills in ‘ pay ’ territory and outside of the combination, one was at Columbus, Ohio, two in northern Ohio, and one in Michigan. Their aggregate possible annual capacity was about one half the usual annual output of the defendants’ mills. They were, it will be observed, at the extreme northern end of the ‘pay’ territory, while the defendants’ mills at Cincinnati, Louisville, Chattanooga and South Pittsburg, and Anniston and Bessemer were grouped much nearer to the centre of the ‘ pay ’ territory. The freight upon cast-iron pipe amounts to a considerable percentage of the price at which manufacturers can deliver it at any great distance from the place of manufacture. Within the margin of the freight per ton which Eastern manufacturers would have to pay to deliver pipe in ‘pay’ territory, the defendants, by controlling two thirds of the output in ‘ pay ’ territory, were practically able to fix prices. The competition of the Ohio and Michigan mills of course somewhat affected their power in this respect in the northern part of the ‘pay’ territory, but the further south the place of delivery was to be, the more complete the monopoly over the trade which the defendants were able to exercise, within the limits already described. Much evidence is adduced upon affidavit to prove that defendants had no power arbitrarily to fix prices and that they were always obliged to meet competition. To the extent that they could not impose prices on the public in excess of the cost price of pipe with freight from the Atlan- ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 237 Opinion of the Court. tic seaboard added, this is true, but within that limit they could fix prices as they chose. The most cogent evidence that they had this power is the fact everywhere apparent in the record that they exercised it. The details of the way in which it was maintained are somewhat obscured by the manner in which the proof was adduced in the court below upon affidavits solely, and without the clarifying effect of cross-examination, but quite enough appears to leave no doubt of the ultimate fact. “ The defendants were by their combination therefore able to deprive the public in a large territory of the advantages otherwise accruing to them from the proximity of defendants’ pipe factories and, by keeping prices just low enough to prevent competition by Eastern manufacturers, to compel the public to pay an increase over what the price would have been if fixed by competition between defendants, nearly equal to the advantage in freight rates enjoyed by defendants over Eastern competitors. The defendants acquired this power by voluntarily agreeing to sell only at prices fixed by their committee and by allowing the highest bidder at the secret 1 auction pool ’ to become the lowest bidder of them at the public letting. Now, the restraint thus imposed on themselves was only partial. It did not cover the United States. There was not a complete monopoly. It was tempered by the fear of competition and it affected only a part of the price. But this certainly does not take the contract of association out of the annulling effect of the rule against monopolies. In United States v. E. C. Knight Company, 156 U. S. 1, 16, Chief Justice Fuller, in speaking for the court, said: ‘ Again all the authorities agree that in order to vitiate a contract or combination, it is not essential that its result should be a complete monopoly ; it is sufficient if it really tends to that end and to deprive the public of the advantages which flow from free competition. ’ “ It has been earnestly pressed upon us that the prices at which the cast-iron pipe was sold in ‘pay’ territory were reasonable. A great many affidavits of purchasers of pipe in ‘ pay ’ territory, all drawn by the same hand or from the same model, are produced, in which the affiants say that in their 238 OCTOBER TERM, 1899. Opinion of the Court. opinion the prices at which pipe has been sold by defendants have been reasonable. We do not think the issue an important one, because, as already stated, we do not think that at common law there is any question of reasonableness open to the courts with reference to such a contract. Its tendency was certainly to give defendants the power to charge unreasonable prices, had they chosen to do so. But if it were important we should unhesitatingly find that the prices charged in the instances which were in evidence were unreasonable. The letters from the manager of the Chattanooga foundry written to the other defendants and discussing the prices fixed by the association, do not leave the slightest doubt upon this point, and outweigh the perfunctory affidavits produced by the defendants. The cost of producing pipe at Chattanooga, together with a reasonable profit, did not exceed $15 a ton. It could have been delivered at Atlanta at $17 to $18 a ton, and yet the lowest price which that foundry was permitted by the rules of the association to bid was $24.25. The same thing was true all through 4 pay ’ territory to a greater or less degree, and especially at4 reserved ’ cities.” The facts thus set forth show conclusively that the effect of the combination was to enhance prices beyond a sum which was reasonable, and therefore the first objection above set forth need not be further noticed. We are also of opinion that the direct effect of the agreement or combination is to regulate interstate commerce; and the case is therefore not covered by that of United States v. A. C. Knight Company, supra. It was there held that although the American Sugar Refining Company, by means of the combination referred to, had obtained a practical monopoly of the business of manufacturing sugar, yet the act of Congress did not touch the case, because the conibination only related to manufacture and not to commerce among the States or with foreign nations. The plain distinction between manufacture and commerce was pointed out, and it was observed that a contract or combination which directly related to manufacture only was not brought within the purview of the act, although as an indirect and incidental result of such combina- ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 239 Opinion of the Court. tion commerce among the States might be thereafter somewhat affected. Mr. Chief Justice Fuller, in delivering the opinion of the court, spoke of the distinction between the two subjects, and said: “ The argument is that the power to control the manufacture of refined sugar is a monopoly over a necessity of life, to the enjoyment of which by a large part of the population of the United States interstate commerce is indispensable, and that, therefore, the General Government, in the exercise of the power to regulate commerce, may repress such monopoly directly and set aside the instruments which have created it. “ Doubtless, the power to control the manufacture of a given thing involves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture and is not a part of it. * * * * * “ It will be perceived how far reaching the proposition is that the power of dealing with a monopoly directly may be exercised by the General Government whenever interstate or international commerce may be ultimately affected. The regulation of commerce applies to the subjects of commerce and not to matters of internal police. Contracts to buy, sell or exchange goods to be transported among the several States, the transportation and its instrumentalities, and articles bought, sold or exchanged for the purposes of such transit among the States, or put in the way of transit, may be regulated, but this is because they form part of interstate trade or commerce. The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce. ***** “ There was nothing in the proofs to indicate any intention to put a restraint upon trade or commerce, and the fact, as we 240 OCTOBER TERM, 1899. Opinion of the Court. have seen, that trade or commerce might be indirectly affected, was not enough to entitle complainants to a decree.” The direct purpose of the combination in the Knight case was the control of the manufacture of sugar. There was no combination or agreement, in terms, regarding the future disposition of the manufactured article; nothing looking to a transaction in the nature of interstate commerce. The probable intention on the part of the manufacturer of the sugar to thereafter dispose of it by sending it to some market in another State, was held to be immaterial and not to alter the character of the combination. The various cases which had been decided in this court relating to the subject of interstate commerce, and to the difference between that and the manufacture of commodities, and also the police power of the States as affected by the commerce clause of the Constitution, were adverted to, and the case was decided upon the principle that a combination simply to control manufacture was not a violation of the act of Congress, because such a contract or combination did not directly control or affect interstate commerce, but that contracts for the sale and trans-portation to other States of specific articles were proper subjects for regulation because they did form part of such commerce. We think the case now before us involves contracts of the nature last above mentioned, not incidentally or collaterally, but as a direct and immediate result of the combination engaged in by the defendants. While no particular contract regarding the furnishing of pipe and the price for which it should be furnished was in the contemplation of the parties to the combination at the time of its formation, yet it was their intention, as it was the purpose of the combination, to directly and by means of such combination increase the price for which all contracts for the delivery of pipe within the territory above described should be made, and the latter result was to be achieved by abolishing all competition between the parties to the combination. The direct and immediate result of the combination was therefore necessarily a restraint upon interstate commerce in respect of ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 241 Opinion of the Court. cles manufactured by any of the parties to it to be transported beyond the State in which they were made. The defendants by reason of this combination and agreement could only send their goods out of the State in which they were manufactured for sale and delivery in another State, upon the terms and pursuant to the provisions of such combination. As pertinently asked by the court below, was not this a direct restraint upon interstate commerce in those goods ? If dealers in any commodity agreed among themselves that any particular territory bounded by state lines should be furnished with such commodity by certain members only of the combination, and the others would abstain from business in that territory, would not such agreement be regarded as one in restraint of interstate trade ? If the price of the commodity were thereby enhanced, (as it naturally would be,) the character of the agreement would be still more clearly one in restraint of trade. Is there any substantial difference where, by agreement among themselves, the parties choose one of their number to make a bid for the supply of the pipe for delivery in another State, and agree that all the'other bids shall be for a larger sum, thus practically restricting all but the member agreed upon from any attempt to supply the demand for the pipe or to enter into competition for the business? Does not an agreement or combination of that kind restrain interstate trade, and when Congress has acted by the passage of a statute like the one under consideration, does not such a contract clearly violate that statute ? As has frequently been said, interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different States, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale and exchange of commodities. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196-203; Kidd v. Pearson, 128 IT. S. 1, 20. If, therefore, an agreement or combination directly restrains not alone the manufacture, but the purchase, sale or exchange of the manufactured commodity among the several States, it is brought within the provisions of the statute. The power to regulate VOL. CLXXV—16 242 OCTOBER TERM, 1899. Opinion of the Court. such commerce, that is, the power to prescribe the rules by which it shall be governed is vested in Congress, and when Congress has enacted a statute such as the one in question, any agreement or combination which directly operates, not alone upon the manufacture, but upon the sale, transportation and delivery of an article of interstate commerce, by preventing or restricting its sale, etc., thereby regulates interstate commerce to that extent and to the same extent trenches upon the power of the national legislature and violates the statute. We think it plain that this contract or combination effects that result. The defendants allege, and it is true, that their business is not like a factory manufacturing an article of a certain kind for which there is at all times a demand, and which is manufactured without any regard to a particular sale or for a particular customer. In this respect as in many others the business differs radically from the sugar refiners. The business of defendants is carried on by obtaining particular contracts for the sale, transportation and delivery of iron pipe of a certain description, quality and strength, differing in different contracts as the intended use may differ. These contracts are, generally speaking, obtained at a public letting, at which there are many competitors, and the contract bid for includes, in its terms, the sale of the pipe and its delivery at the place desired, the cost of transportation being included in the purchase price of the pipe. The contract is one for the sale and delivery of a certain kind of pipe, and it is not generally essential to its performance that it should be manufactured for that particular contract, although sometimes it may be. If the successful bidder had on hand iron pipe of the kind specified, or if he could procure it by purchase, he could m most cases deliver such pipe in fulfilment of his contract just the same as if he manufactured the pipe subsequently to the making of the contract and for the specific purpose of its performance. It is the sale and delivery, of a certain kind and quality of pipe, and not the manufacture, which is the material portion of the contract, and a sale for delivery beyond the State makes the transaction a part of interstate commerce. Municipal corporations and gas, railroad and water companies ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 243 Opinion of the Court. are among the chief customers for the pipe, and when they desire the article they give notice of the kind and quality, size, strength and purpose for which the pipe is desired, and announce that they will receive proposals for furnishing the same at the place indicated by them. Into this contest (and irrespective of the reserved cities) the defendants enter, not in truth as competitors, but under an agreement or combination among themselves which eliminates all competition between them for the contract, and permits one of their number to make his own bid and requires the others to bid over him. In certain sections of the country the defendants would have, by reason of their situation, such an advantage over all other competitors that there would practically be no chance for any other than one of their number to obtain the contract, unless the price bid was so exorbitant as to give others not so favorably situated an opportunity to snatch it from their hands. Under these circumstances, the agreement or combination of the defendants, entered into for that purpose and to directly obtain that desired result, would inevitably and necessarily give to the defendant, who was agreed upon among themselves to make the lowest bid, the contract desired and at a higher price than otherwise would have been obtained, and all the other parties to the combination would, by virtue of its terms, be restricted from an attempt to obtain the contract. The combination thus had a direct, immediate and intended relation to and effect upon the subsequent contract to sell and deliver the pipe. It was to obtain that particular and specific result that the combination was formed, and but for the restriction the resulting high prices for the pipe would not have been obtained. It is useless for the defendants to say they did not intend to regulate or affect interstate commerce. They intended to make the very combination and agreement which they in fact did make, and they must be held to have intended (if in such case intention is of the least importance) the necessary and direct result of their agreement. The cases of Hopkins n. United States, 171 U. S. 578, and v. United States, 171 U. S. 604, are not relevant. In the Hopkins case it was held that the business of the mem- 244 OCTOBER TERM, 1899. Opinion of the Court. bers of the Kansas City Live Stock Exchange was not interstate commerce, and hence the act of Congress did not affect them; while in the Anderson case it was held that whether the members of the Traders’ Live Stock Exchange were or were not engaged in the business of interstate commerce, was immaterial, as the agreement proved was not in restraint of trade, and did not regulate such commerce. It was said that when it is seen that the agreement entered into does not directly relate to and act upon and embrace interstate commerce, and that it was executed for another and entirely different purpose, and that it was calculated to attain it, the agreement would be upheld, if its effect upon that commerce were only indirect and incidental. The agreement involved in that case was held to be of such a character. The case we have here is of an entirely different nature, and is not covered or affected by the decisions cited. It is also urged that as but one contract would be awarded for the work proposed at any place, and therefore only one person would secure it by virtue of being the lowest bidder, the selection by defendants of one of their number to make the lowest bid as among themselves could not operate as any restraint of trade; that the combination or agreement operated only to make a selection of that one who should have the contract by being the lowest bidder, and it did not in the most remote degree itself limit the number or extent of contracts, and therefore could not operate to restrain interstate trade. This takes no heed of the purpose and effect of the combination to restrain the action of the parties to it so that there shall be no competition among them to obtain the contract for themselves. We have no doubt that where the direct and immediate effect of a contract or combination among particular dealers in a commodity is to destroy competition between them and others, so that the parties to the contract or combination may obtain increased prices for themselves, such contract or combination amounts to a restraint of trade in the commodity, even though contracts to buy such commodity at the enhanced price are continually being made. Total suppression of the ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 245 Opinion of the Court. trade in the commodity is not necessary in order to render the combination one in restraint of trade. It is the effect of the combination in limiting and restricting the right of each of the members to transact business in the ordinary way, as well as its effect upon the volume or extent of the dealing in. the commodity, that is regarded. All the facts and circumstances are, however, to be considered in order to determine the fundamental question — whether the necessary effect of the combination is to restrain interstate commerce. If iron pipe cost one hundred dollars a ton instead of the prices which the record shows were paid for it, no one, we think, would contend that the trade in it would amount to as much as if the lower prices prevailed. The higher price would operate as a direct restraint upon the trade, and therefore any contract or combination which enhanced the price might in some degree restrain the trade in the article. It is not material that the combination did not prevent the letting of any particular contract. Such was not its purpose. On the contrary, the more contracts to be let the better for the combination. It was formed not for the object of preventing the letting of contracts, but to restrain the parties to it from competing for contracts, and thereby to enhance the prices to be obtained for the pipe dealt in by those parties. And when by reason of the combination a particular contract may have been obtained for one of the parties thereto, but at a higher price than would otherwise have been paid, the charge that the combination was one in restraint of trade is not answered by the statement that the particular contract was in truth obtained and not prevented. The parties to such a combination might realize more profit by the higher prices they would secure than they could earn by doing more work at a much less price. The question is as to the effect of such combination upon the trade in the article, and if that effect be to destroy competition and thus advance the price, the combination is one in restraint of trade. Decisions regarding the validity of taxation by or under state authority, involving sometimes the question of the point of time that an article intended for transportation beyond the 246 OCTOBER TERM, 1899. Opinion of the Court. State ceases to be governed exclusively by the domestic law and begins to be governed and protected by the national law of commercial regulation, are not of very close application here. The commodity may not have commenced its journey and so may still be completely within the jurisdiction of the State for purposes of state taxation, and yet at that same time the commodity may have been sold for delivery in another State. Any combination among dealers in that kind of commodity, which in its direct and immediate effect, forecloses all competition and enhances the purchase price for which such commodity would otherwise be delivered at its destination in another State, would in our opinion be one in restraint of trade or commerce among the States, even though the article to be transported and delivered in another State were still taxable at its place of manufacture. It is said that a particular business must be distinguished from its mere subjects, and from the instruments by which the business is carried on; that in most cases of a large manufacturing company it could only be carried on by shipping products from one State to another, and that the business of such an establishment would be related to interstate commerce only incidentally and indirectly. This proposition we are not called upon to deny. It is not, however, relevant. Where the contract is for the sale of the article and for its delivery in another State, the transaction is one of interstate commerce, although the vendor may have also agreed to manufacture it in order to fulfil his contract of sale. In such case a combination of this character would be properly called a combination in restraint of interstate commerce, and not one relating only to manufacture. It is almost needless to add that we do not hold that every private enterprise which may be carried on chiefly or in part by means of interstate shipments is therefore to be regarded as so related to interstate commerce as to come within the regulating power of Congress. Such enterprises may be of the same nature as the manufacturing of refined sugar in the Knight case — that is, the parties may be engaged as manufacturers of a commodity which they thereafter intend at ADDYSTON PIPE & STEEL CO. v. UNITED STATES. 247 Opinion of the Court. some time to sell, and possibly to sell in another State; but such sale we have already held is an incident to and not the direct result of the manufacture, and so is not a regulation of or an illegal interference with interstate commerce. That principle is not affected by anything herein decided. The views above expressed lead generally to an affirmance of the judgment of the Court of Appeals. In one aspect, however, that judgment is too broad in its terms — the injunction is too absolute in its directions — as it may be construed as applying equally to commerce wholly within a State as well as to that which is interstate or international only. This was probably an inadvertence merely. Although the jurisdiction of Congress over commerce among the States is full and complete, it is not questioned that it has none over that which is wholly within a State, and therefore none over combinations or agreements so far as they relate to a restraint of such trade or commerce. It does not acquire any jurisdiction over that part of a combination or agreement which relates to commerce wholly within a State, by reason of the fact that the combination also covers and regulates commerce which is interstate. The latter it can regulate, while the former is subject alone to the jurisdiction of the State. The combination herein described covers both commerce which is wholly within a State and also that which is interstate. In regard to such of these defendants as might reside and carry on business in the same State where the pipe provided for in any particular contract was to be delivered, the sale, transportation and delivery of the pipe by them under that contract would be a transaction wholly within the State, and the statute would not be applicable to them in that case. They might make any combination they chose with reference to the proposed contract, although it should happen that some non-resident of the State eventually obtained it. The fact that the proposal called for the delivery of pipe ln the same State where some of the defendants resided and carried on their business would be sufficient, so far as the act of Congress is concerned, to permit those defendants to combine as they might choose, in regard to the proposed contract 248 OCTOBER TERM, 1899. Statement of the Case. for the delivery of the pipe, and that right would not be affected by the fact that the contract might be subsequently awarded to some one outside the State as the lowest bidder. In brief, their right to combine in regard to a proposal for pipe deliverable in their own State could not be reached by the Federal power derived from the commerce clause in the Constitution. To the extent that the present decree includes in its scope the enjoining of defendants thus situated from combining in regard to contracts for selling pipe in their own State, it is modified, and limited to that portion of the combination or agreement which is interstate in its character. As thus modified, the decree is Affirmed. HAYS v. UNITED STATES. APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS. No. 19. Argued October 10,1899. — Decided December 4,1899. Under the laws of Mexico prior to 1848, an alcalde had no power to make a grant of public lands. Where petitioner produced oral testimony tending to show a grant of lands by the governor of New Mexico, and an order upon the alcalde to put the grantee in possession; and also gave evidence tending to show that these documents were afterwards lost or destroyed, and at the same time produced a grant by the alcalde in which no reference whatever was made to a prior grant by the governor, it was held that the grant of the alcalde was inconsistent upon its face with the alleged grant by the governor, and with the other circumstances in the case, and that the claim was properly rejected by the Court of Private Land Claims. Possession to land since the treaty of Guadalupe Hidalgo, in 1848, will not of itself give a valid title to land ; nor will it create the presumption of a valid grant where a void grant appears to have been made; or in case the surrounding circumstances are incompatible with the existence of a valid grant. This was a suit instituted by the appellant in the Court of Private Land Claims for the confirmation of a grant of land situate in the county of San Miguel, New Mexico, known as HAYS v. UNITED STATES. 249 Statement of the Case. the “Apache Springs,” or “Ojo del Apache” grant, and alleged to contain eleven square leagues, or 47,743 square acres. The amended petition alleged, substantially, that prior to June 2, 1842, Manuel Armijo, then governor of New Mexico, granted the tract in question to Venturo Trujillo, in accordance with his petition for the same, and by decree directed the constitutional alcalde of the demarcation of San Miguel del Bado to place the petitioner in possession; that said alcalde subsequently made return that he had placed the petitioner in juridical possession of the lands as directed, and that this return with the original papers were duly deposited in the archives of New Mexico. Petitioner further alleged that he had neither the original of said petition, nor a copy thereof, nor the decree of the governor, nor the return of the alcalde, in his possession; and that neither of them is in the possession of the surveyor general of New Mexico; but he alleged that the archives of New Mexico, previous to the occupation of the Territory by the United States, and for some time thereafter, were kept carelessly, and many of the papers and documents, including those therein mentioned, were lost and destroyed ; and prayed that he might be permitted to give secondary evidence of the petition, decree and order of the governor, and of the return of the alcalde. He further alleged that on July 2, 1842, Damasio Salazar, a justice of the peace of the demarcation of San Miguel del Bado, now embraced within the limits of the county of San Miguel, acting in conformity with the laws and customs of Mexico, placed Venturo Trujillo in possession of the tract so granted; that he entered into such possession and occupied the same for about four years from July, 1842, and that, by sundry mesne conveyances from him to parties who continued such possession, the petitioner, by virtue of the original grant and these mesne conveyances, now claims the ownership of the wThole of said tract; and that ever since the year 1842, and at the present time, the said grantee, Venturo Trujillo, and his legal representatives and those claiming under him and them, have held, claimed, used and 250 OCTOBER TERM, 1899. Counsel for Parties. occupied, owned and grazed upon, peaceably and notoriously, the whole of said lands. That no survey of the tract has ever been made ; that petitioner cannot state the amount, but that it does not exceed eleven leagues; that one Taylor, who was then the owner of the grant and one of the mesne grantees, made application to the surveyor general of New Mexico for the approval of said grant under the law of July 22,1854, which was rejected December 19, 1872, upon the ground that the grant was made by a justice of the peace, who, under the laws of New Mexico, had no power to make a grant of lands ; that subsequently, and upon September 22,1873, application was made to the surveyor general to reopen the application for confirmation, and to receive new testimony which had been discovered. The application was granted, so far as to permit the new testimony to be introduced, and the depositions of Guadalupe Miranda, secretary of New Mexico during the adminstration of Governor Armijo, and of Rafael Aragon, secretary of Damasio Salazar, the constitutional alcalde who placed Trujillo in possession, were taken and made a part of the petition. The application was again rejected by the surveyor general upon the ground that the depositions being based entirely upon memory were insufficient to establish a grant by the governor ; that Miranda and Aragon are now dead; that the grant has, since July, 1842, remained in the possession of the grantee and his assigns, and has been generally recognized. No question was made with regard to the intermediate conveyances to the petitioner or of the other formal allegations bringing the case within- the provisions of the act establishing the Court of Private Land Claims. The case was tried by the court upon the pleadings and evidence, the claim rejected, and the petition dismissed by a majority of the court. Petitioner thereupon appealed to this court. J/y. T. B. Catron for appellant. Mr. William, H. Pope for appellee. Mr. Solicitor General and Mr. Matthew G. Reynolds were on his brief. HAYS v. UNITED STATES. 251 Opinion of the Court. Mr. Justice Brown, after making the above statement of the case, delivered the opinion of the court. The only documentary evidence of title which appears in the record is the following translation of a grant purporting to have been signed by Damasio Salazar, described therein as a justice of the peace. In the original Spanish he is described as Jues de pas (paz) and subsequently as “ alcalde ”; “ Translation. Seal fourth. (Seal.) One fourth real. For the years eighteen hundred and forty and eighteen hundred and forty-one. “In this second demarcation San Miguel de Bado, on the second day of the month of July of the present year eighteen hundred and forty-two, before me citizen Damasio Salazar, justice of the peace of said precinct, personally present appeared citizen Bentura Trujillo, citizen and resident of the first demarcation, soliciting the place and land commonly called the Ojito del Apache, to establish, in company with his children, a farm on which he believes he will have the means necessary for the support of a large family, and to give tithes (illegible) and the holy church their corresponding portions, and I, said alcalde finding the petition to be a just one and acting in conformity with the supreme decrees, have made him said donation in the name of God and the supreme Mexican nation, so that as a good compatriot he may make use of it, observing the requirements which our laws provide, under the condition and restrictions that if he does not provide a protection to prevent the damages which may result to him, he is under obligation to bear them, it being commons and pasture grounds of the inhabitants of this precinct; and the boundaries corresponding to said grant are on the north the mesa; on the south the old road to Los Chupaines; on the east the Mesa de los Chupaines; and on the west the hills bordering on Canoncito de la Lagunita; and in order that this foregoing instrument may have the force and validity by law required the aforesaid Trujillo requested me 252 OCTOBER TERM, 1899. Opinion of the Court. to interpose my authority and judicial decree, and I, the said justice, declared that I would interpose, and did interpose, as far as I am authorized by law, those of my attendants signing with me with whom I act by appointment, for the notorious lack of a notary public, there being none of any kind in this department. In form of law, to all of which I certify. Damasio Salazar. Attending: Rafal. Aragon. Attending: Salvador Gonzales. “ And it is given on this ante-stamped paper, there being none of the proper stamp. Salazar.” 1. The theory of the petitioner is that, some time prior to the date of this document, there was a grant by Governor Armijo to Venturo Trujillo, in accordance with his petition, and that the governor by his decree directed Salazar, the alcalde, to deliver to the petitioner juridical possession of the land; that said alcalde afterwards made return to the effect that he had done so, and that these documents were deposited in the archives of New Mexico, but were subsequently, and about the time of the occupation of the territory by the United States, lost and destroyed. In support of this theory he produced the deposition of Guadalupe Miranda, secretary of the Territory of New Mexico during the administration of Governor Armijo, taken November, 1873, to the effect that he was acquainted with Trujillo, and remembered that, about the year 1841 or 1842, he petitioned the governor for this grant of land; that the governor granted the petition, issued a decree to that effect, and directed the constitutional alcalde to place him in possession, “ which said decree he signed as governor of the territory, and I signed the same along with him as secretary of said territory; ” that the alcalde subsequently made return that he had placed the petitioner in possession, in obedience to the decree of the governor, and that these papers were duly deposited in the archives of New Mexico and remained under the charge of deponent as public records, he being at that time the legal custodian, and that HAYS v. UNITED STATES. 253 Opinion of the Court. from this time Trujillo was considered and reputed as the lawful owner and possessor of the lands by the people in general, as well as by the territorial authorities. Petitioner also produced the deposition of Rafael Aragon, taken about the same time, a man seventy-seven years of age and a laborer by occupation, who testified that the grant was made to Trujillo and his children in the year 1841 by the Alcalde Damasio Salazar; that witness was at the time the secretary of the alcalde, wrote the grant, and that the same was made under and by virtue of an order of the governor. In his own words he says: “The order referred to was a written one addressed to said Alcalde Salazar through Guadalupe Miranda, secretary of state of the government, and was of about this tenor, to wit: I am directed by his excellency the governor to say to you that upon the receipt hereof you will proceed to the place called the Ojito del Apache and will there place the petitioner, Ventura Trujillo, in possession of that land. Salazar was addressed in this communication as the alcalde of the second demarcation of San Miguel, and the communication was deposited among the archives of the alcalde’s office. The directions of the order were carried out by the alcalde by placing Trujillo in possession of the land, and the alcalde then reported to Secretary Miranda that the governor’s order had been duly executed. Salazar went upon the spot in company with Trujillo and placed the latter in possession by pointing out and designating to him the boundaries of the tract. Trujillo went upon the land to occupy it, I think, in July, 1842. He occupied the place four years, having built upon it a small house, constructed some small tanks, and planted some ground. He was succeeded on the place by Juan Lucero, he by Jesus Casados, and he by John L. Taylor, here present.” Francisco Trujillo also testified that his father, who was Ventura Trujillo, had brought a very rich woman from the Comanches, and after that, the Mexican government made this grant to his father, and that there was an order signed by the government (governor) with a man to go and deliver the land to his father. That he knows the order was signed by 254 OCTOBER TERM, 1899. Opinion of the Court. Governor Armijo, and declared (directed) Damasio Salazar to go and deliver the land. That the land was delivered in the year 1842. That he was present when it was delivered by Salazar and Rafael Aragon, his secretary, and that a communication was signed stating that it had been delivered. He also states that he heard Salazar say, in respect to the order of the governor, that the order was to deliver the land to his father, and then he says that Damasio Salazar sent a communication to General Armijo, stating that the land had been delivered. That his father and Damasio Salazar both told him that it had been sent. Upon the other hand, however, an inspection of the document signed by Salazar shows no reference whatever to a grant made by the governor or any order made by the governor directing him to put the grantee in juridical possession, although in making the grant he purports to be acting “ in conformity with the supreme decrees,” which means nothing more than he is acting in conformity with the laws of the land. The grant certifies that Trujillo personally appeared before him, solicited the land as a farm for the support of a large family, and that he, the alcalde, “ finding the petition to be a just one, and acting in conformity with the supreme decrees, have made him said donation in the name of God and the supreme Mexican nation, so that as a good compatriot he may make good use of it,” under certain conditions, and “ in order that this foregoing instrument may have the force and validity by law required, the aforesaid Trujillo has requested me to interpose my authority and judicial decree, and I, the said justice, declared that I would interpose, and did interpose, as far as I am authorized by law.” Not only is there no reference to a decree of the governor, but it is doubtful whether the instrument was intended as an absolute grant of the land or anything more than a usufruct, as the donation is made “ so that as a good compatriot he may make use of it,” the land being declared to be “ commons and pasture grounds of the inhabitants of this precinct.” Indeed, it is doubtful whether the reference in the petition to a grant of the governor was not an afterthought, inasmuch HAYS v. UNITED STATES. 255 Opinion of the Court. as in a petition made by John L. Taylor (then claimant of his tract) to the surveyor general of New Mexico, about the year 1870, the following allegation is made as to the title: “Your petitioner would further state that said grant of land was duly made according to law and the usage and customs of the laws of New Mexico on the second day of July, eighteen hundred and forty-two (1842) by one Damasio Salazar, a justice of peace in the said county of San Miguel del Bado, to one J. C. Ventura Trujillo, a resident of said county of San Miguel del Bado.” No reference was made in this petition to a grant by the governor. This petition having been rejected by the surveyor general, upon the ground that an alcalde had no power to make donation of vacant public lands, Taylor, in 1873, applied for a rehearing upon the ground of the newly discovered evidence of Miranda and Aragon to the effect that the governor had made such grant. The petition was again (December 19, 1872,) denied, “the matter being now before Congress.” It further appeared and was stipulated that a certain index made by Antonio B. Vigil, completed in the year 1851, and entitled “ A general index of all documents of the Government of Spain and Mexico up to the year 1846,” contained no mention of any grant of the Ojo del Apache tract. Upon the whole, we think it extremely improbable that, if a grant had been made by the governor, no reference whatever should have been made to it by the alcalde, who, upon the theory of the petitioner, was acting merely as the right hand of the governor in putting Trujillo into possession. The document is not in the usual form of a return to an order of a governor to put a grantee into juridical possession of the land, of which the reports and records of this court show many examples, but of an attempt by an alcalde to make a grant himself upon the petition of an applicant. But if the governor had already made the grant why should the alcalde undertake to make one, or state the reasons why in his opinion it should be made ? He does not pretend to be acting pursuant to a decree of the governor, and makes no mention of a delivery of juridical 256 OCTOBER TERM, 1899. Opinion of the Court. possession, by going upon the premises with the petitioner, pointing out the boundaries, plucking grass, or throwing stones, taking the grantee by the hand and leading him over the lands, or of any of the formalities which, under the Spanish and Mexican customs, were observed by the officer delivering possession. The document is such an one as the governor might have been expected to execute, but by no means such as to show that the alcalde intended to deliver juridical possession. In short, he assumed to do that which he had no right to do, and carefully omitted to do that for which he had complete legal authority. When we consider what was required to be done under the regulations for the colonization of the Territories of Mexico, made November 21, 1828, (Reynolds’ Span. & Mex. Law, 141,) in pursuance of the act of the Mexican Congress of August 18, 1824, (Reynolds, 121,) and the practice of the officers in that connection, the failure to conform to the recognized methods of disposing of public lands becomes still more important. These regulations are stated in United States v. Cambuston, 20 How. 59, and United States v. Bolton, 23 How. 341, and required — 1. That the governor of the Territory should be empowered to grant vacant lands for the purposes of cultivation (Reg. No. 1, Reynolds, 141); 2. That a petition should be addressed to the governor, describing the applicant by name, country and profession, and, as distinctly as possible, the land requested (Reg. No. 2); 3. That the governor should proceed to obtain the necessary information with regard to the land and the petitioner, and whether there be any objection to making the grant (Reg. No. 3); 4. That, if the governor accede to the petition, he shall make a grant, describing the boundaries of the land, to serve as a title to the party interested, and refer it to a subordinate officer, such as an alcalde, to make delivery of juridical possession (Reg. No. 8, Hall’s Mex. Law, sec. 511); 5. A return by such officer to the governor that he accompanied the petitioner to the lands and delivered possession to HAYS v. UNITED STATES. 257 Opinion of the Court. him with the usual formalities observed for the investiture of title; 6. That these papers should be placed of record in the archives of the Territory, and that a copy, or testimonio, be delivered to the petitioner. Whether the grant of the governor required the approval of the Departmental Assembly, or Territorial Deputation, is not a question which arises in this case. Eeg. 5, 6, 7, Hall’s Mex. Law, sec. 580; United States v. Reading, 18 How. 1, 7; Hornsby v. United States, 10 Wall. 224; United States v. Vigil, 13 Wall. 449. Not a single one of these formalities appears to have been observed, but we are left to infer from the testimony of two or three witnesses, who swore to their recollection of what took place thirty years before, that some of them were in fact observed. When we consider that this testimony is contradicted, or at least rendered exceedingly improbable by the only document which the petitioner is now able to produce, we must admit that oral testimony of this kind forms a very uncertain basis upon which to sustain a grant of lands. As we said with respect to a somewhat similar state of facts connected with an alleged grant of land in California, Luco v. United States, 23 How. 515, 543 : “It may be received as a general rule of decision, that no grant of land purporting to have issued from the late government of California should be received as genuine by the courts of the United States, unless it be found noted in the registers, or the expediente, or some part of it be found on file among the archives, where other and genuine grants of the same year are found; and that owing to the weakness of memory with regard to the dates of grants signed by them, the testimony of the late officers of that government cannot be received to supply or contradict the public records, or establish a title of which there is no trace to be found in the public archives.” In the case of Peralta v. United States, 3 Wall. 434, it was said that written documentary evidence, no matter how7 formal and complete, or how well supported by the testimony of witnesses, if coming from private hands, is insufficient to establish a Mexican grant if there be nothing in the public records to von. clxxv—17 258 OCTOBER TERM, 1899. Opinion of the Court. show that such evidence ever existed. But it was intimated that, if the claimant can show to the satisfaction of the court that the grant had been made in conformity to law and recorded, and that the record has been lost or destroyed, he will then be permitted to give secondary evidence of its contents. See also Fuentes v. United States, 22 How. 443; United States v. Knight? s Admrs., 1 Black, 227; United States v. Vallejo, 1 Black, 541. In this case, however, the same uncertainty which exists with regard to a grant having been made by the governor, necessarily attends the fact as to whether it was ever recorded, and as no testimonio was ever delivered to the grantee, it must be held that the existence of the grant has not been proved. That a justice of the peace, or an alcalde, had no power to make a grant of public lands is evident from the character of his office, which appears to have been analogous to that of an ordinary justice of the peace, (Decree of July 22, 1833, Reynolds, 170, 176,) and from the failure to find any evidence in the laws of Spain or Mexico that such power existed. Indeed, such want of power is admitted by the petitioner. See Reynolds v. TJW, 1 California, 322; Crespin v. United States, 168 U. S. 208, 213. 2. In further support of his petition, the depositions of several witnesses were introduced in evidence tending to show that the tract in question had been occupied by the original grantee and those claiming under him ever since the date of the alleged grant, and, indeed, for some years previous thereto. Upon the other hand, oral evidence was introduced by the Government to the effect that the land in question had never been occupied by the original grantee, but that he and his family lived at the time of his death, and for many years prior thereto, several miles distant from the land in question. While Trujillo had been upon the land in 1842, he made no improvements thereon, and after remaining a few days left the premises with the remark that the document, for which he paid three dollars to Salazar, was worth more than the whole grant; also that the property at that time, and for years subsequent to the possession by the Government of the HAYS v. UNITED STATES. 259 Opinion of the Court. United States, had been used as common pasturing ground for the people of the vicinity, the alleged grantee or his representatives making no claim to be the owner thereof. That it should be used for pasturage by the neighboring inhabitants is certainly consistent with the alleged grant, which describes the lands as “commons and pasture grounds of the inhabitants of this precinct,” and there is nothing upon the face of the grant indicating that this right of pasturage was intended to be taken away. The grantee was apparently to be allowed to establish a farm there for the support of his family, but there is no intimation that he was to have the power to exclude the inhabitants from their customary use of such tract as commons and pasture grounds. Indeed, giving the fullest credence to his testimony, there is little or nothing to indicate that the possession of the grantee, under the alleged grant, was characterized by the notoriety, openness and exclusive character necessary to make out a title by adverse possession. In addition to this, however, the possession did not begin until 1842, and at the date of the treaty of Guadalupe Hidalgo, in 1848, such possession had not lasted for more than six or seven years. In other words, the claim had not become “ complete and perfect at the date of the treaty, nor one that claimant would have had a lawful right to make perfect had the territory not been acquired by the United States,” within the meaning of the Court of Private Land Claims act. In Crespin v. United States, 168 U. S. 208, the plaintiffs claimed under a grant alleged to have been made in 1840, by a prefect, and also by adverse possession since that time. We held, however, that the language of the act creating the Court of Private Land Claims, above quoted, “ would preclude the idea that possession since the date of the treaty, however exclusive and notorious, could be regarded as an element going to make up a perfect title. There was no evidence of more than six or eight years’ possession prior to the date of the treaty, and this, under any construction of the Spanish or Mexican laws, would be insufficient to constitute a title against the sovereign.” See also Bergere v. United States, 168 U. S. 66, 77; Hayes v. 260 OCTOBER TERM, 1899. Opinion of the Court. United States, 170 U. 8. 637, 649, 653. In this last case it is said: “ As the ordinary prescription could not apply, and as the necessary time for the extraordinary prescription under the Spanish law had not run at the time of the acquisition of the territory by the United States, and as, clearly, whatever may have been the rule as to the operation of prescription against the Spanish or Mexican Governments, it did not run after the treaty against the United States, it follows that the claim of prescription is without foundation.” It would seem to follow from the general principle of law, so often asserted, that the statute of limitations does not run against the Government, that no length of possession since the treaty of 1848 would of itself give a valid title to land. How far the long-continued possession prior to the date of the treaty would be operative against the Spanish or Mexican Governments, is a question which does not arise in this case, where the possession did not exceed six years. See Lindsey n. Miller, 6 Pet. 666; Gibson v. Chouteau, 13 Wall. 92; Weber v. Harbor Commissioners, 18 Wall. 57, 70; Sparks n. Pierce, 115 U. S. 408; Redfield v. Parks, 132 U. S. 239. In United States n. De Haro, 22 How. 293, there was a grant made in 1843 by Governor Alvarado of California, and, with a possession of sixteen years thereafter, was held to be sufficient presumption of a legal grant, but there was no requirement as above stated with regard to the Court of Private Land Claims act. In United States v. Chaves, 159 U. S. 452, there was evidence of an original grant in 1833 by the Government of Hew Mexico, although the original records had been lost. The grant was proved by secondary evidence, and a possession of sixty years thereunder, and it was held that a legal grant might be presumed upon proof of adverse possession for twenty years, the court observing: “ Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record.” The doctrine at the foundation of that case is thus stated by Mr. Justice Story in Ricard v. Williams, 7 Wheat. 59, HAYS v. UNITED STATES. 261 Opinion of the Court. 109: “ A grant of land may as well be presumed as a grant of a fishery, or of common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difiiculty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. They may, therefore, be encountered and rebutted by contrary presumptions; and can never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant; a fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, it is the policy of courts of law to limit the presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies it constitutes, ordinarily, a sufficient title or defence, independently of any presumption of a grant, and therefore it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may as well be made in the one case as in the other; and where the other circumstances are very cogent and full, there is no absolute bar against the presumption of a grant, within a period short of the statute of limitations.” But this presumption is subject to the limitation that where title is claimed from a deed which is shown to be void, it will not be presumed that there was an independent grant, Smith n. Higbee, 12 Vermont, 113, or where surrounding circumstances are inconsistent with the theory of a grant. Townsend v. Downer, 32 Vermont, 183. The substance of this doctrine is that lapse of time may be treated as helping out the presumption of a grant, but where a void grant is shown, it affords no presumption that another valid grant was made. Nor does such presumption arise if the surrounding circumstances are incompatible with the existence of a grant. In the case under consideration we 262 OCTOBER TERM, 1899. Statement of the Case. cannot find any evidence which justifies us in believing that a legal grant can have been made, and under those circumstances we cannot consider possession since the date of the treaty as dispensing with the requirement that the title, if not perfect at that time, was one which the claimant would have had a lawful right to make perfect, had the territory not been acquired by the United States. In the view we have taken of this case, it becomes unnecessary to consider whether Governor Armijo had power or authority to make a grant of public* lands without the assent of the territorial deputation or departmental assembly. The judgment of the court below must therefore be Affirmed. BOLLES u OUTING COMPANY. ERROR TO CIRCUIT COURT OF APPEALS FOE THE SECOND CIRCUIT. No. 47. Submitted October 16,1899. — Decided December 4,1899. In an action under Rev. Stat. § 4965 to recover a penalty of one dollar for every copy of an engraving or photograph infringing the copyright of another, the plaintiff’s recovery is limited to copies actually found in the possession of the defendant, and does not extend to copies already sold and put in circulation. A party who does not take out a writ of error will not be heard to complain of adverse rulings in the court below. This was an action begun April 18, 1894, by Charles E. Bolles, a resident of the city of Brooklyn, New York, for the penalty provided for the infringement of the copyright of a photograph, by Rev. Stat. sec. 4965. This section enacts that “ if any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving or photograph, . . . as provided by this chapter, shall, within the time limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish BOLLES v. OUTING COMPANY. 263 Statement of the Case. or import, either in whole or in part, or . . . shall sell or expose to sale, any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession,” etc. In August, 1893, plaintiff made a photograph of the yacht “ Vigilant ” under full sail, and copyrighted the same under the title “ Vigilant, No. 4.” The copyright stamp on the photograph was made by impressing at the lower end of the righthand corner of the photographs the words “ Copyright 93, by Bolles, Brooklyn,” Bolles being the trademark name used by the plaintiff. Defendant made a photogravure of this photograph, and published it November, 1893, in a magazine published by it in New York known by the name of “ The Outing.” Defendant had no permission to use or copy the photograph. One copy of this number of The Outing was purchased of the defendant by an employe of the plaintiff for the sum of twenty-five cents. On the first trial in the Circuit Court the action was dismissed upon the ground that the copyright stamp on the photograph was insufficient notice of the copyright, because the year was not given in full, nor the full name of the owner. Thereupon plaintiff sued out a writ of error from the Circuit Court of Appeals, which held that the copyright stamp was sufficient, but sustained the trial court in its exclusion of certain evidence offered as to the number of copies found in the possession of the defendant. 77 Fed. Rep. 966. Upon the new trial the same evidence as to the number of copies of the infringement found in the possession of the defendant was excluded, and a verdict directed for plaintiff for one dollar penalty for the one copy bought by plaintiff’s employe from the defendant. Plaintiff moved for a new trial because of the refusal of the court to permit him to prove the the number of copies which had been in the defendant’s possession at any time within the two years previous to the com-niencement of the suit. Upon his motion being denied, he 264 OCTOBER TERM, 1899. Opinion of the Court. again sued out a writ of error from the Circuit Court of Appeals, which affirmed the judgment. Whereupon plaintiff sued out a writ of error from this court. Mr. George E. Waldo for plaintiff in error. Mr. John R. Abney for defendant in error. Me. Justice Beown, after stating the case, delivered the opinion of the court. Whether the court erred in excluding the evidence offered by the plaintiff tending to show the number of copies of the issue of The Outing, containing a reproduction of the plaintiff’s photograph, which had been printed and delivered to the defendant at any time within two years prior to the commencement of this action, is the sole question presented by the assignments of error. This is an action to recover a penalty of one dollar for every copy of the plaintiff’s photograph, and is based upon Revised Statutes, section 4965, which declares that any person offending against its provisions “ shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported or exposed for sale, . . . one half thereof to the proprietor and the other half to the use of the United States.” This, is clearly a penal statute in that it fixes a single and arbitrary measure of recompense to the plaintiff, irrespective of the damages actually sustained by him, or of the profits realized by the defendant; and in the further provision that one half of the amount recovered shall be to the use of the United States. It makes no pretence of awarding damages, and simply imposes a forfeiture of a specified sum. In this respect it differs wholly from the following section (4966) recently considered by us in Brady n. Daly, ante, 148, which made a person performing or representing any copyrighted dramatic composition “liable for damages therefor, BOLLES v. OUTING COMPANY. 265 Opinion of the Court. . . . to be assessed at such sum, not less than $100 for the first and $50 for every subsequent performance, as to the court shall appear to be just.” There the award was of damages, and a minimum sum was fixed apparently to cover cases where it was impossible to estimate such damages; but there was no limit to the amount which might be awarded if, in the opinion of the court, it were just to increase the minimum. The idea suggested by the learned judge who delivered the opinion of the court, that as it would be difficult to prove the exact amount of damages suffered by reason of the unlawful representation, the statute provided a minimum sum, leaving it open for a larger recovery upon proof of greater damages, has no application to the section under consideration, where the plaintiff can recover no greater nor less damages than the penalty provided by the section. The penal character of the act is further emphasized by the fact that the plaintiff apparently recovers a moiety for the use of the United States, though perhaps this is not beyond a doubt suggested in Thornton v. Schreiber, 124 U. S. 612. The act of 1831, for which this act is a substitute, and of the sixth section, of which section 4965 is a substantial copy, was said by this court in Backus v. Gould, 7 How. 798, 811, to give a qui tam action for the sum forfeited. The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed as it reads, and the words of the statute given their full meaning ; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice. United States v. Hartwell, 6 Wall. 385; United States v. Wiltberger, 5 Wheat. 76, 95; American Fur Co. v. United States, 2 Pet. 358; United States v. Reese, 92 U. S. 214. The language of this section when examined seems hardly susceptible of two interpretations, unless certain words which are not found there are treated as interpolated. It forfeits to the proprietor of the pirated publication all the plates on which the same shall be copied, and every sheet thereof, either 266 OCTOBER TERM, 1899. Opinion of the Court. copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession. No remedy is provided by the act, although by section 4970 a bill in equity will lie for an injunction; but the provision for a forfeiture of the plates and of the copies seems to contemplate an action in the nature of replevin for their seizure, and in addition to the confiscation of the copies, for a recovery of one dollar for every copy so seized or found in the possession of the defendant. While the forfeiture is not limited as to the number of the copies, it is limited to such as are found in, and not simply traced to, the possession of the defendant. Congress may have been perfectly willing to impose a forfeiture of one dollar for every such copy, and have been reluctant to impose it upon the thousands of such copies that may have previously been put in circulation. The construction contended for would permit an author to lie by during the two years allowed him for bringing suit, permit another to publish the work during that time, and then recover for every copy so published. Not only this, but as the penalty is imposed upon any person who engraves, copies, prints, publishes or sells a copy, not only the publisher, but the printer and bookseller might be liable for every copy traced to his possession. Indeed, the defendant might be made liable for every copy traced to his possession, even though he destroyed the whole edition for the purpose of relieving himself from the penalty. This case is clearly controlled by that of Backus n. Gould, 7 How. 798. This was an action of debt brought by Gould and Banks to recover penalties incurred by the invasion of plaintiffs’ copyright in twelve volumes of law reports. Defendant insisted that plaintiff could only recover for such sheets as were proved to have been found in his possession, either printing or printed, published or exposed for sale. Plaintiffs insisted, as the plaintiff does here, that they were entitled to recover for every sheet which had been published, or procured to be published, by the defendant, whether the same were proved to have been found in the defendant’s possession or not. The language of the forfeiting clause, section six of the act of February 3, 1831, c. 16, 4 Stat. 436, 437, was that BOLLES v. OUTING COMPANY. 267 Opinion of the Court. “such offender shall forfeit every copy of such book to the person legally, at the time, entitled to the copyright thereof; and shall also forfeit and pay fifty cents for every such sheet which may be found in his possession, . . . one moiety thereof to such legal owner of the copyright aforesaid, and the other to the United States.” The recovery was held to be limited to the sheets in the possession of the defendant, and an instruction that he was liable for every sheet which he had published, or procured to be published, was held to be erroneous. That case was decided in 1849, and must be regarded as overruling anything to be found to the contrary in Reed v. Carusi, Taney Dec. 72; S. C., 20 Fed. Cases, 431, decided by Chief Justice Taney in 1845; Dwight v. Appleton, 8 Fed. Cases, 143, decided in 1843, and Millett v. Snowden, 17 Fed. Cases, 374, decided in 1844. The case of Thornton v. Schreiber, 124 U. S. 612, was a qui tarn action brought against Thornton under section 4965 for the unlawful reproduction of a certain copyrighted photograph. The case turned upon the fact whether the sheets were found in the possession of the defendant. They were actually found in the store of Sharpless & Sons, wholesale dealers in dry goods, were used by pasting them upon parcels of dry goods, and were their property. Thornton was employed for the purchase of goods sold by the firm, and he appears to have gotten up the plate, ordered fifteen thousand copies to be made, which were subsequently delivered to Sharpless & Sons, who paid for them. Attempt was made to establish the fact that Thornton had the possession of these prints, by showing that he was the man who first conceived the idea .of getting them up and using them in the business of the firm. It was held that Thornton could not be considered to have held possession of them, but that an action of replevin could have been sustained against the firm, and that they were the proper parties to be made defendants. The same argument was made as in Backus v. Gould, that the words, “found in his possession,” meant simply that, where the sheets are ascertained by the finding of the jury to have 268 OCTOBER TERM, 1899. Opinion of the Court. been at any time in the possession of the defendant, the forfeiture attached; but it was held that the only possession defendant had was that of Sharpless & Sons, and that he held them merely as their employe, subject always to their order and control. While Backus n. Gould is not cited in the opinion, the case is a distinct affirmance of that. See also Sarony v. EhricK, 28 Fed. Rep. 79. Had Congress designed the extended meaning claimed for these words “ found in his possession,” it would naturally have used the expression “found or traced to his possession,” or “ found to be, or to have been, in his possession.” It is only by interpolating words of this purport that the statute can receive the construction claimed. We concur with the learned judge who spoke for the Court of Appeals that the words “ found in his possession ” aptly refer to a finding for the purposes of forfeiture and condemnation. “ The remedy by forfeiture and condemnation is only appropriate in a case where the property can be seized upon process, and where, as here, the forfeiture declared is against property of the ‘ offender ’ is only appropriate when it can be seized in his hands.” Two other defences are interposed which go to the recovery of even the small judgment of one dollar and costs, and which, if sustained, would require the judgment of the court below to be reversed, and ultimately a verdict for the defendant. First, that the notice of the copyright, imprinted on the photograph, did not fill the requirements of the statute; and, second, that the copyright claimed by Bolles is not sanctioned by the Constitution. It is sufficient to say of these that the defendant did not take out a writ of error, and cannot now be heard to complain of any adverse rulings in the court below. Canter v. American &c. Ins. Co., 3 Pet. 307, 318; Chittenden v. Brewster, 2 Wall. 191; The Ilaria Martin, 12 Wall. 31,40; The Stephen Morgan, 94 U. S. 599; Clark v. Killian, 103 U. S. 766; Loudon v. Taxing District, 104 U. S. 771; Cherokee Nation n. Blackfeather, 155 U. S. 218. The judgment of the court below is Affirmed. Mr. Justice White concurred in the result. ARKANSAS BUILDING ASSOCIATION v. MADDEN. 269 Statement of the Case. ARKANSAS BUILDING AND LOAN ASSOCIATION v. MADDEN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS. No. 68. Submitted October 26,1899. — Decided December 4,1899. The collection of taxes under the authority of a State will not be enjoined by a court of the United States on the sole ground that the tax is illegal; but it must appear that the party taxed has no adequate remedy by the ordinary processes of the law, and that there are special circumstances bringing the case within some recognized head of equity jurisdiction. In Texas the law is established that when a person, by the compulsion of the color of legal process, or of seizure of his person or goods, pays money unlawfully demanded, he may recover it back. Inasmuch as the bill in this case contains nothing to indicate inability on the one hand to pay the franchise tax in question, or, on the other, to respond in judgment if it were found to have been illegally exacted, and sets up no special circumstances justifying the exercise of equity jurisdiction other than consequences which complainant can easily avert without loss or injury, the court holds that the bill cannot be sustained. By an act of the State of Texas approved April 3, 1889, (Laws Tex. 1889, c. 78, p. 87,) foreign corporations for pecuniary profit, with some exceptions not material here, desiring to do business in the State of Texas were required to file with the secretary of state a duly certified copy of their articles of incorporation and obtain a permit to transact business in the State, paying a fee therefor, the permit not to be issued for a period longer than ten years from the date of the filing. By an act approved May 11, 1893, (Laws 1893, c. 102, § 5, p. 158,) it was provided “ that each and every private domestic corporation heretofore chartered or that may be hereafter chartered under the laws of this State, and each and every foreign corporation that has received or may hereafter receive a permit to do business under the laws of this State, in this State, shall pay to the secretary of state, annually, on or before the first day of May, a franchise tax of ten dollars. Any such corporation which shall fail to pay the tax pro- 270 OCTOBER TERM, 1899. Statement of the Case. vided for in this section shall, because of such failure, forfeit their charter.” Section 17 of Article I of the constitution of Texas, ratified February 17, 1876, provided: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured, by a deposit of money ; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the legislature or created under its authority shall be subject to the control thereof.” And Article VIII: “ Section 1. Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law. The legislature may impose a poll tax. It may also impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing any business in this State. It may also tax incomes of both natural persons and corporations, other than municipal, except that persons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax; . . . “ Sec. 2. All occupation taxes shall be equal and uniform, upon the same class of subjects within the limits of the authority levying the tax; . . . ” “ Sec. 4. The pow’er to tax corporations and corporate prop-perty shall not be surrendered or suspended by act of the legislature by any contract or grant to which the State shall be a party.” “ Sec. 17. The specification of the objects and subjects of taxation shall not deprive the legislature of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this constitution.” In July, 1896, the Arkansas Building and Loan Association, ARKANSAS BUILDING ASSOCIATION v. MADDEN. 271 Statement of the Case. a corporation, of the State of Arkansas, filed its charter with the secretary of the State of Texas, and paid the fee required by the act of 1889, as well as the franchise tax of ten dollars required to be paid by the act of 1893, and received a permit to carry on its business in Texas for ten years. The provisions of the acts of 1889 and 1893 were carried into the Revised Statutes of the State of Texas of 1895. By an act approved April 30, 1897, (Laws Tex. 1897, c. 104, p. 140,) and an act approved May 15, 1897, (Laws Tex. 1897, c. 120, p. 168,) these provisions were amended so as among other things to increase the annual franchise tax theretofore required, to graduate it according to the capital stock of the corporation, to provide that the failure to pay it should work a forfeiture of the right to do business in the State, and that the secretary of state should declare such forfeiture. The taxes imposed by these amendments were less upon domestic corporations than upon foreign corporations. Thereafter the Arkansas Building and Loan Association offered to pay the secretary of state the ten dollars required by the prior law as the franchise tax for the ensuing year, but the secretary refused to accept that sum and to give to the company the franchise tax receipt therefor, and demanded the larger sum required by the law of 1897t which amounted to two hundred and five dollars. The company then filed a bill in the Circuit Court of the United States for the Western District of Texas against the secretary of state of Texas, setting up the foregoing facts, and charging that the act of 1897 was void because in contravention of the constitution of Texas, and of the commerce clause of the Constitution of the United States and of the Fourteenth Amendment to that instrument, and praying an injunction against the secretary of state restraining him from the collection of said alleged illegal tax, and from declaring complainant’s permit and right to do business in the State forfeited by failure to pay the tax, and for general relief. To this bill defendant demurred, assigning as grounds that it set up no cause of action; that it disclosed that complainant had an adequate remedy at law; and that it showed that 272 OCTOBER TERM, 1899. Opinion of the Court. the demand made of complainant was “ in compliance with a valid existing law of the State of Texas.” The Circuit Court held that the law was valid and dismissed the bill. Mr. F. F. Albright, Mr. L. A. Smith and Mr. Drew Pruit for appellant. Mr. M. M. Crane, Attorney General of the State of Texas, and Mr. T. A. Fuller for appellee. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The rule is that the collection of taxes under state authority will not be enjoined by a court of the United States on the sole ground that the tax is illegal, but it must appear that the party taxed has no adequate remedy by the ordinary processes of the law, and that there are special circumstances bringing the case within some recognized head of equity jurisdiction. Pittsburg &c. Railway v. Board of Public Worhs, 172 U. S. 32; Shelton n. Platt, 139 U. S. 591; Dows v ^Chicago, 11 Wall. 108, 112. In Dows v. Chicago, which has been frequently cited with approval, it was said by Mr. Justice Field, speaking for the court: “ The party of whom an illegal tax is collected has ordinarily ample remedy, either by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights.” These decisions are in harmony with the sixteenth section of the judiciary act of 1789, now section 723 of the Revised Statutes, which declared the rule as then, and still existing, ARKANSAS BUILDING ASSOCIATION v. MADDEN. 273 Opinion of the Court. that “ suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law.” And on principle, the interference of the courts of the United States by injunction with the collection of state taxes, or with state administration of matters of internal police, can only be justified in a plain case not otherwise remediable. The grievance complained of in this case is that the Arkansas corporation entered on the transaction of business in Texas at a time when the annual franchise or license tax was ten dollars, and that it is now required to pay two hundred and five dollars, by a subsequent law, which, it alleges, is unconstitutional. The penalty denounced on failure to pay is the forfeiture of the right to do business in the State, and complainant averred that if that forfeiture were declared it would be subjected to irreparable injury and a multiplicity of suits. It is on these grounds of equity interposition that the aid of the Circuit Court was sought to restrain the discharge by a state officer of duties imposed on him by the law of the State and to adjudicate as to the validity of that law. But the bill of complaint did not set forth any facts tending to show that complainant could not escape the forfeiture by payment of the two hundred and five dollars under protest, and recover back the money so paid if the law should be held void. We assume that the payment would, under the circumstances detailed, be compulsory and not voluntary, and no reason is perceived why the rule permitting recovery back would not apply. That rule as applicable here is that an action will lie for money paid, under compulsion, or an illegal demand, the person making it being notified that his right to do so is con tested. Elliot v. Swartwout, 10 Pet. 137; Bend v. Hoyt, 13 Pet. 263; Philadelphia n. Collector, 5 Wall. 720, 731; Swift Company v. United States, 111 U. S. 22. The principle is thus stated by Gaines, J., in Taylor n. Hall, 71 Texas, 213: “ The law is established that when a person, by the compul- VOL. CLXXV—18 274 OCTOBER TERM, 1899. Syllabus. sion of the color of legal process, or of seizure of his person or goods, pays money unlawfully demanded, he may recover it back.” The fact that the defendant is a state official is not in itself a defence, and our attention has been called to no statute of Texas which substitutes any other for the common law rule. Inasmuch as the bill contains nothing to indicate inability on the one hand to pay the franchise tax in question, or on the other, to respond in judgment if it were found to have been illegally exacted, and sets up no special circumstances justifying the exercise of equity jurisdiction other than consequences which complainant can easily avert, without loss or injury, we are of opinion that it cannot be sustained. It is quite possible that in cases of this sort the validity of a law may be more conveniently tested, by the party denying it, by a bill in equity than by an action at law; but considerations of that character, while they may explain, do not justify, resort to that mode of proceeding. Decree modified to a dismissal without prejudice, and as so modified affirmed. SEEBERGER v. McCORMICK. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. No. 822. Submitted October 16, 1899. — Decided December 4, 1899. The contention, even if formally made, that plaintiffs in error were seeking to avail themselves of some right or immunity under the Constitution or laws of the United States, does not give this court jurisdiction to review the judgment of the Supreme Court of a State, where that judgment was based upon a doctrine of general law, sufficient of itself to determine the case. It having been decided in McCormick v. Market Bank, 165 U. S. 538, that the contract of lease there in suit was void, the plaintiff in error in that case commenced this action in a state court in Illinois to recover from citizens of that State the rent for the property which had been intended to be leased to the bank by the void lease, on the ground that they had SEEBERGER v. McCORMICK. 275 Statement of the Case. falsely assumed corporate authority to make the void lease. Such proceedings were had in the state courts that judgment was finally rendered by the Supreme Court of that State in McCormick’s favor. Held, that the question whether the plaintiffs in error rendered themselves liable to McCormick by reason of their false assumption of corporate authority was one of general law, and not one to be solved by reference to any law, statutory or constitutional, of the United States; and that, as no Federal question was in form presented to or passed upon by the state Supreme Court, and because its judgment was based upon matter of general and not Federal law, this court was without jurisdiction to review it. This was an action brought in a state court of Illinois in which Leonard J. McCormick sought to hold Seeberger and others as partners for an alleged false assumption of power as a national banking association. On January 31, 1893, articles of association were signed and an organization certificate was signed and acknowledged by nine citizens of Illinois, and both were transmitted to the Comptroller of Currency, as required by the Revised Statutes of the United States, for the purpose of making them a national banking association at Chicago by the name of the Market National Bank. At a meeting of the directors of the bank, chosen by the stockholders, and named in the articles of association, a president and cashier were duly elected, and the directors caused a seal to be made for the bank. On February 9, 1893, the president, pursuant to a resolution of the directors, signed and sealed with the corporate seal a lease in writing from Leander J. McCormick to the bank of certain offices in Chicago, “ to be used and occupied by said Market National Bank as a banking office, and for no other purpose,” for the term of five years from May 1,1893, at a yearly rent of $13,000. By an agreement made part of the lease, McCormick was to make certain alterations and repairs at his own expense; either party might cancel the lease on May 1 of any year y giving ninety days’ notice in writing; and no rent was to e charged until the bank took possession. On April 12, 893, the parties made a supplemental agreement, by which cCormick was to make further alterations, the bank pay-^g half the cost thereof. All the alterations and repairs were ma e by McCormick as agreed ; the cost, paid by him, of the 276 OCTOBER TERM, 1899. Statement of the Case. alterations of April 12, 1893, being $2475. On June 22,1893, the president and cashier, in the name of the bank, took possession of the demised premises, and put in the fixtures and furniture, blank books and stationery, necessary to carry on a banking business, and they were not removed until April 30, 1895. Of the whole capital stock of $1,000,000, called for in the articles of association, but $331,594 was ever paid in; and the bank was never authorized by the Comptroller of the Currency to commence, and never did commence, the business of banking. The officers of the bank, from time to time, corresponded with McCormick, using letter heads, with the name, location and place of business of the bank and the names of the officers printed thereon, and signing in their official capacity. On August 15, 1893, the officers of the bank informed McCormick that the bank had never been authorized to commence the business of banking, and had no power to enter into the lease, and had abandoned all further proceedings, and offered to surrender the lease. McCormick refused to accept the surrender, and on September 20, 1893, the president caused the key of the office to be left on the desk of McCormick’s agent, he refusing to accept it. On October 4,1893, the parties agreed in writing that, without prejudice to the rights of either, McCormick should take possession of the premises, and endeavor to lease them and to collect the rent thereof. He made every effort to obtain a tenant accordingly, but was unable to do so. On January 3, 1895, McCormick gave written notice to the president of the bank of his intention to terminate the lease in May, 1895, in accordance with its terms. The cashier paid the rent, according to the lease, until July 22, 1893; but the bank refused to pay any rent subsequently accruing, and never paid its half of the cost of the alterations made under the agreement of April 12, 1893. Thereupon McCormick brought an action against the Market National Bank on July 17, 1895, in the Superior Court of Cook County, Illinois, claiming that he was entitled to recover judgment, at the rate agreed upon in the lease, from July 22, 1893, up to May 1, 1895, and for half of the SEEBERGER v. McCORMICK. 277 Counsel for Parties. cost of changing and repairing the premises. That court refused to hold that McCormick could recover upon the lease as a valid contract, but gave judgment in his favor for the rent from July 22 to August 15, 1893, and for half the cost of the alterations, with interest, amounting in all to the sum of $2548.85. This judgment was affirmed on successive appeals of McCormick, by the Appellate Court and by the Supreme Court of Illinois. 61 Ill. App. 33; 162 Illinois, 100. Thereupon McCormick sued out a writ of error and brought the case to the Supreme Court of the United States, where the judgment of the Illinois courts was affirmed. 165 U. S. 538. On November 19, 1895, McCormick brought an action in the Superior Court of Cook County, Illinois, against Anthony F. Seeberger and fifteen persons, as copartners doing business in Chicago, Illinois, under the firm name and style of The Market National Bank of Chicago. The defendants were officers, directors and shareholders of the Market National Bank, and in this action McCormick sought to hold them personally for the balance of the rent due under the terms of the lease. The Superior Court rendered judgment for the defendants. McCormick appealed, and the Appellate Court of Illinois reversed the judgment, “found the facts as set forth in the stipulation in the record,” and entered judgment against the defendants, and assessed the damages at the amount of the rent stipulated in the lease from August 15, 1893, to May 1, 1895, to wit, $22,208.33. The defendants then took the case to the Supreme Court of Illinois, which affirmed the judgment of the Appellate Court. Thereupon the defendants sued out a writ of error and brought the case to this court; and on October 16, 1899, a motion was made and submitted by the defendant in error to dismiss the writ of error on the alleged ground that no Federal question, sufficient to give this court jurisdiction to review the decision of the state court, was shown by the record. Mr. Hiram T. Gilbert for plaintiff in error. Mr. A. M. Pence, Mr.. George A. Carpenter and Mr. Shirty T. High for defendant in error. 278 OCTOBER TERM, 1899. Opinion of the Court. Mb. Justice Shibas, after making the above statement of the case, delivered the opinion of the court. In the suit brought by McCormick against the Market National Bank of Chicago it was held by the Supreme Court of Illinois that the contract of lease sued on was not incidental and necessarily preliminary to the organization of the corporation, and therefore, by virtue of section 5136 of the Revised Statutes, having been executed by the defendant before being authorized by the Comptroller of the Currency to commence the business of banking, did not bind the defendant. That decision being arrived at upon a consideration of the legal import of a statute of the United States, was plainly one involving a Federal question. But it was contended that this court had no jurisdiction to review the action of the state court, because its decision was in favor, in respect to the Federal statute, of the party who had set up and claimed an immunity under it. It was, however, clearly shown by this court that, as the defendants had relied on the statutory prohibition to transact any business until it had been authorized by the Comptroller of the Currency to commence the business of banking, and as the plaintiff had relied on the exception out of that prohibition, that is, had claimed that the lease was “ incidental and necessarily preliminary to the organization,” and as the decision was against the plaintiff on the latter contention, it was, therefore, a decision against a right claimed by him under a statute of the United States and reviewable by this court on writ of error. McCormick v. Market Bank, 165 U. S. 538, 546. McCormick’s recovery in that action having been restricted to rent for the time of the bank’s actual occupancy of the premises, he brought the present suit against the persons who had taken part in the proposed organization of the bank, charging them as partners doing business in the firm name and style of the Market National Bank of Chicago. He recovered a judgment in the Appellate Court of Illinois. That judgment has been affirmed by the Supreme Court of Illinois, and the case is now before us on a writ of error to the judgment o the state Supreme Court. SEEBERGER v. McCORMICK. 279 Opinion of the Court. The theory upon which this action was maintained in the state courts can be best made to appear by a quotation from the opinion of the Supreme Court: “ The principle is one of agency, and that plaintiffs in error, as the agents of the corporation in making the contract of the lease, by necessary implication asserted to the lessor that they were in fact authorized to cause the lease to be executed by the corporation. Where the contract is made in good faith and both parties are fully cognizant of the facts, and the mistake is one of law only, the result of which is to exonerate the principal from liability, because the agent had no lawful authority to make the contract, it is clear that the agent cannot be held liable, either ex contractu or ex delicto. “ The Appellate Court was authorized to find, and doubtless did find, that this was not such a case. These directors were charged with knowledge that they had not taken the necessary steps to obtain, and had not obtained, the certificate of the Comptroller necessary to confer power to make the lease, and it was a fair inference for the Appellate Court to draw from the agreed facts that McCormick did not know of this omission until August 15,-1893, several months after the lease was executed and after possession of the premises had been taken by the lessee under it. The stipulation also showed that the plaintiffs in error cancelled their articles of association in July, but remained in possession of the premises until the 15th day of August. They had by resolution authorized and directed the execution of the lease, and there can be no doubt of the legal sufficiency of the evidence to establish an implied warranty on their part of their authority to enter into the lease on behalf of the corporation, if such implied warranty is in law a sufficient ground on which to make them liable to respond in damages to McCormick for a breach of such warranty. . . u We are of opinion that upon both principle and authority such an action can be maintained. Indeed, the fraud, if any, arises out of the contractual relations which the parties have assumed. The express contract purporting to bind the principal may be void, but if the agent has given his warranty, 280 OCTOBER TERM, 1899. Opinion of the Court. express or implied, that he is authorized by his principal to execute that contract when he has no such authority, we know of no principle in law or logic which would prevent the other party from recovering for the breach of such warranty where injury has been sustained by such breach.” Did such a state of facts and law present a Federal question ? Certainly there was no formal allegation in the assignments of error to the judgment of the appellate court that the plaintiffs in error were claiming any immunity under the laws or Constitution of the United States; nor is there any allusion, however distant, in the opinion of the Supreme Court, to any such question. And surely the fact that the defendants had proposed, but had failed, to effect an organization as a banking association under the laws of the United States, did not bestow a Federal character upon their transactions. By withdrawing from their futile attempt to create a corporation under the statutes of the United States, these individual defendants must be deemed to have renounced any right, title or immunity they might have possessed under such organization had it been perfected. It has been frequently held that the contention, even if formally made, that plaintiffs in error were seeking to avail themselves of some right or immunity under the Constitution or laws of the United States does not give us jurisdiction to review the judgment of the Supreme Court of a State where that judgment was based upon a doctrine of general law sufficient of itself to determine the case. Beaupre v. Noyes, 138 U. S. 397; Eustis n. Bolles, 150 U. S. 361; Pierce v. Somerset Railway, 171 U. S. 641; Remington Paper Co. v. Watson, 173 U. S. 443. We think that the question whether the plaintiffs in error rendered themselves liable to McCormick by reason of their false assumption of corporate authority was one of general law, and not one to be solved by reference to any law, statutory or constitutional, of the United States. As well, then, because no Federal question was in form presented to or passed upon by the Supreme Court of Illinois, as because the judgment of that court was based upon matter of general and not Federal law, we are unable to see that we have MALONY v. ADSIT. 281 Statement of the Case. jurisdiction to review that judgment; and the writ of error is accordingly Dismissed. MALONY v. ADSIT. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ALASKA. No. 67. Argued October 25, 26,1899. — Decided December 4, 1899. Allowing and signing a bill of exceptions is a judicial act, which can only be performed by the judge who sat at the trial; and section 953 of the Revised Statutes is intended to provide and does provide that no bill of exceptions can be deemed sufficiently authenticated, unless signed by the judge who sat at the trial, or by the presiding judge if more than one sat. This action being an action of ejectment, the provision in § 3524 of the Oregon Code with regard to actions for forcible entry and detainer have no application to it. In May, 1896, Ohlin H. Adsit filed a complaint against John F. Malony in the United States District Court for the District of Alaska, to recover possession of the undivided one half of a tract of land in the town of Juneau, District of Alaska. The complaint averred that on the 29th day of April, 1891, and for more than nine years prior thereto, the plaintiff and his grantors were the owners by right of prior occupancy and actual possession, of the land in question, and that plaintiff was entitled to the possession thereof; that one James Weim was the owner of the other undivided one half part of said land; that on or about the 29th day of April, 1891, the defendant and his grantor, without right or title so to do, entered thereon, and ousted and ejected the plaintiff and his grantors therefrom, and from thence hitherto have wrongfully withheld possession from the plaintiff. The plaintiff prayed judgment for the recovery of the possession of an undivided one half part or interest of, in and to the whole of the described premises, and for his costs and disbursements in the action. 282 OCTOBER TERM, 1899. Statement of the Case- On June 8, 1896, the defendant demurred to the complaint, on the alleged ground that the same did not state facts sufficient to constitute a cause of action. On October 9, 1896, the court overruled the demurrer, and gave leave to the defendant to file an answer. An answer and replication thereto were filed. The case was tried August 10, 1897, before Arthur K. Delany, District Judge, a jury having been waived. Judge Delany made the following findings of facts and conclusions of law: “This cause having been regularly called for trial before the court — a jury trial having been expressly waived by stipulation in open court of the respective parties appearing herein — Johnson & Heid appeared as attorneys for the plaintiff and John F. Malony, the defendant herein, appeared in proper person ; and the court having heard the proofs of the respective parties and considered the same and the records and papers in the cause and the arguments of the respective attorneys thereon, and the cause having been submitted to the court for its decision, the court now finds the following facts: “I. That on the 19th day of April, 1881, the plaintiff and his grantors entered into actual possession of all that certain lot, piece or parcel of land described in the complaint as lot numbered four (4), in block numbered four (4), in the town of Juneau, District of Alaska, according to the plat and survey of said town of Juneau made by one G. C. Hanus, accepted and adopted in the year 1881 by the citizens of the town formerly known as Rockwell, but now Juneau, Alaska, said lot being situated on the corner of Second and Franklin streets, in said town of Juneau, claiming said lot, piece or parcel of land in their own right; and the said plaintiff and his grantors have, ever since the date last aforesaid, occupied, used and possessed said lot or piece or parcel of land, having erected a substantial frame or wooden building or structure thereon, using and claiming the same in their own right from that date to the present time adversely to all the world, and especially as against the defendant. “ II. That the plaintiff is the owner of an undivided one half (|) part or interest of, in and to said lot No. 4, in said MALONY v. ADSIT. 283 Statement of the Case. block No. 4, hereinbefore described, and that the whole of said lot, piece or parcel of land in the complaint described lies within the said town of Juneau, Alaska. “ III. That on or about the 29th day of April, 1891, the defendant, without right or title so to do, entered on and upon said described lot, piece or parcel of land in the complaint described, and ousted and ejected the plaintiff and his grantors therefrom, and from thence hitherto has wrongfully withheld the possession thereof from the said plaintiff. “ As conclusions of law from the foregoing facts the court now hereby finds and decides: “ 1. That the plaintiff is the owner and entitled to the possession of an undivided one half part or interest of, in and to said lot, piece or parcel of land as the same is described in the complaint on file herein as against the defendant and all persons claiming or to claim the same or any part of said right or interest of the plaintiff in and to said lot, piece or parcel of land under him, the said defendant, and that the defendant has no right, title or interest in or to said land or any part thereof. “ 2. That the plaintiff is entitled to a judgment, as prayed for in his complaint, for the recovery of the possession of an undivided one half part or interest of, in and to said lot No. 4, in said block No. 4, in said town of Juneau, against said defendant and all persons claiming or to claim the same, or any part thereof under or through the said defendant. “ 3. That the plaintiff is entitled to a judgment for costs, to be taxed herein, against the defendant. “And judgment is hereby ordered to be entered accordingly.” On August 11, 1897, a motion for a new trial was made and overruled. Judgment for the plaintiff was duly entered, and on September 20, 1897, the plaintiff was put in possession of the premises in dispute, in pursuance of a writ of possession allowed by Charles S. Johnson, Judge of the United States District Court, who had succeeded Arthur R. Delany to that office. On September 6, 1897, the defendant gave notice of an 284 OCTOBER TERM, 1899. Opinion of the Court. appeal to the United States Circuit Court of Appeals for the Ninth Circuit. On January 4, 1898, the defendant, acting on a decision of the Supreme Court of the United States, wherein it was held that such causes were not appealable to the Circuit Court of Appeals, but that appeals in such cases should be prosecuted to the Supreme Court of the United States, prayed for an appeal to this court, which was on said day allowed as prayed for by Judge Johnson. On January 4, 1898, a bill of exceptions was filed, to which was appended a statement, signed by the respective counsel, that the bill of exceptions was correct and in accordance with the proceedings had in the trial of the cause; and the record discloses that, on said 4th of January, 1898, the bill of exceptions was settled and allowed by Judge Johnson. Mr. L. T. Michener for appellant. Mr. IF. IF. Dudley and Mr. Osca/r Foote were on his brief. Mr. 8. M. Stockslager for appellee. Mr. George C. Heard was on his brief. Mr. Justice Shiras, after stating the case, delivered the opinion of the court. An inspection of this record discloses that the bill of exceptions was not settled, allowed and signed by the judge who tried the case, but by his successor in office, several months after the trial. It is settled that allowing and signing a bill of exceptions is a judicial act, which can only be performed by the judge who sat at the trial. What took place at the trial, and is a proper subject of exception, can only be judicially known by the judge who has acted in that capacity. Such knowledge cannot be brought to a judge who did not participate in the trial or to a judge who has succeeded to a judge who did, by what purports to be a bill of exceptions, but which has not been signed and allowed by the trial judge. Section 953 of the Revised Statutes is as follows: u k bill MALONY v. ADSIT. 285 Opinion of the Court. of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat at the trial of the cause, without any seal of court or judge being annexed thereto.” We understand this enactment to mean that no bill of exceptions can be deemed sufficiently authenticated unless signed by the judge who sat at the trial, or by the presiding judge if more than one sat. In Mussina v. Cavazos, 6 Wall. 355, 363, after the case had been elaborately argued on the merits, it was discovered by the court that the bill of exceptions had not been either signed or sealed by the judge below. Thereupon the court delivered the following opinion: “ Whatever might be our opinion of the exceptions which appear in the record, if they were presented in such a way that we could consider them, we find them beyond our reach. The bill of exceptions, or what purports to be a bill of exceptions, covering more than three hundred and fifty pages of the printed record, is neither signed nor sealed by the judge who tried the cause; and there is nothing which shows that it was submitted to him or in any way received his sanction. We are therefore constrained to affirm the judgment.” Boroscale v. Bosworth, a case reported in 98 Mass. 34, presented a somewhat similar question. There a judge of the trial court took a bill of exceptions that had been substantially agreed on by the parties and duly filed, to examine whether the statement of his rulings was correct, with the understanding that if correct he should allow the bill. However, the judge retained the bill without allowing it for more than a year, and resigned his office without having done so. Afterwards, in such circumstances, a motion was made for a new trial in the trial court, and allowed. To the ruling which allowed a new trial the plaintiffs took an exception and carried the case to the Supreme Judicial Court. That court refused to disturb the order of the court below awarding a new trial, and held that where it appears to the court that a party has been deprived, without his fault, of a right 286 OCTOBER TERM, 1899. Opinion of the Court. or remedy which the law gives him, it would generally be held a legal reason for granting a new trial. The court cited the English cases of Nind v. Arthur, 1 Dowl. & Lowndes, 252, where upon the death of Mr. Justice Coltman, before allowing a bill of exceptions which had been presented to him, a new trial was granted ; also Bennett v. P. & 0. Steamship Company, 16 C. B. 29, where the settling of a bill of exceptions having been delayed by the appointment of Chief Justice Wilde as Lord Chancellor, and afterwards by reason of his inflrm health all hope of it having been lost, a new trial was granted by the trial court. Also the case of Newton v. Boodle, 3 C. B. 796, where the death of Chief Justice Tindal prevented the sealing of a bill of exceptions, without laches of the excepting party, was regarded as good ground for a motion for a new trial. The rationale of these cases evidently was that the court of errors could not consider a bill of exceptions that had not been signed by the judge who tried the case, and that such failure or omission could not be supplied by agreement of the parties, but that the only remedy was to be found in a motion for a new trial. Those cases were cited with approval by this court in Rume v. Bowie, 148 U. S. 245, where it was held that where the judge presiding at the trial of a cause in the Supreme Court of the District of Columbia at circuit dies without having settled a bill of exceptions, it is in order for a motion to be made to set aside the verdict and order a new trial, and that, where such an order is made by the court in general term, it is not a final judgment from which an appeal may be taken to this court. It is true that there Js a rule of the Supreme Court of the District of Columbia which provides that in case the judge is unable to settle the bill of exceptions and counsel cannot settle it by agreement a new trial shall be granted, and that this court regarded that rule as applying to the case in hand, and that hence a new trial was a matter of course. In Young v. Martin, 8 Wall. 354, where the exceptions were noted by the clerk of the trial court and so appeared MALONY v. ADSIT. 287 Opinion of the Court. in the record, it was held that “ to be of any avail exceptions must not only be drawn up so as to present distinctly the ruling of the court upon the points raised, but they must be signed and sealed by the presiding judge. Unless so signed and sealed they do not constitute any part of the record which can be considered by an appellate court.” In Origet v. United States, 125 U. S. 240, 243, the record contained a paper headed “ Bill of Exceptions.” At the foot of the paper appeared the following : “ Allowed and ordered on file, Nov. 22, ’83. A. B.” And it was held, “ This cannot be regarded as a proper signature by the judge to a bill of exceptions, nor can the paper be regarded for the purposes of review as a bill of exceptions. . . . Sec. 953 of the Revised Statutes merely dispensed with the seal. The necessity for the signature still remains. We cannot regard the initials ‘ A. B.’ as the signature of the judge, or as a sufficient authentication of the bill of exceptions, or as sufficient evidence of its allowance by the judge or court. Therefore the questions purporting to be raised by the paper cannot be considered.” In State v. Weiskittle, 61 Maryland, 51, it was said : “ In this State it is not admissible for another judge to pass upon the correctness of his predecessor’s ruling in such a case. The new trial will go as a matter of course.” It certainly cannot be contended that if the trial judge is able officially to sign the bill of exceptions, it would be competent for the counsel to dispense with his action, and rely upon an agreed statement of the facts and law of the case as tried. Nor can they agree that another than the trial judge may perform his functions in that regard. In Lynde v. Craney, 95 Michigan, 109, it was said that the practice of stipulating a bill of exceptions without the sanction of the judge cannot be commended; and if such fact be brought to the attention of the court before the argument of the case, the appeal will be dismissed. In Coburn n. Murray, 2 Maine, 336, it was held that a bill unauthenticated by the trial judge cannot be given validity by consent of counsel. 288 OCTOBER TERM, 1899. Opinion of the Court. We are referred to no decision of this court on the precise question whether counsel can stipulate the correctness of a bill of exceptions not signed by the trial judge. But we think that on principle this cannot be done, and we regard the cases just cited as sound statements of the law. Accordingly, our conclusion is that the errors of the trial court alleged in the bill of exceptions, unauthenticated by the signature of the judge who sat at the trial, cannot be considered by us. The defendant’s demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, having been overruled, and the defendant not having elected to stand on his demurrer, but having availed himself of the leave of the court to file an answer, and his several objections to the admission of evidence at the trial not having been brought before us by a proper bill of exceptions, all that is left for us to consider is whether, on the facts found by the court below, the plaintiff was entitled to judgment. Those facts, briefly stated, were that the plaintiff and his grantors on April 19, 1881, entered into actual possession of the land in dispute; put substantial improvements thereon; and continued in possession, under claim of right, and adversely against the defendant and all others, till on April 29,1891, the defendant, without right or title so to do, entered upon the said land, and ejected the plaintiff therefrom ; that the plaintiff was the owner of an undivided one half part or interest of, in and to said land in the complaint described, and that the defendant wrongfully withheld the same from him. From the findings the court drew the conclusions of law that the plaintiff was entitled to recover possession of the said land in dispute, being the undivided one half part or interest of, in and to said lot Ko. 4, in said block Ko. 4, in said town of Juneau, against said defendant and all persons claiming under him, and to recover a judgment for said possession and for costs. The appellant now contends that, under section 318 of Hill’s Oregon Code, (which by the act of May 17,1884 — 23 Stat. 84 — was made applicable to Alaska, and which is in the follow- MALONY v. ADSIT. 289 Opinion of the Court. ing terms: “ The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him, to his damage such sum as may be therein claimed,”) the plaintiff failed to plead the nature of his estate in the property, whether it be in fee, for life or for a term of years. Without stopping to consider whether the defendant could be heard to again raise a question that had been decided against him on his demurrer to the complaint, we think that the objection is not a sound one. The plaintiff alleged, and the court has found, that for more than nine years prior to April 29,1891, he and his grantors were the owners by right of prior occupancy and actual possession of the land in dispute. In the condition of things in Alaska under the act of May 17,1884, c. 53, 23 Stat. 24, providing a civil government for Alaska, and under the twelfth section of the act of March 3, 1891, c. 561, 26 Stat. 1094, 1100, the only titles that could be held were those arising by reason of possession and continued possession, which might ultimately ripen into a fee simple title under letters patent issued to such prior claimant when Congress might so provide by extending the general land laws or otherwise. Davenport v. Lamb, 13 Wall. 418. In Bennett v. Harkrader, 158 U. S. 441, 447, brought to this court by a writ of error to the District Court of the United States for the District of Alaska, it was said by Mr. Justice Brewer, in disposing of a somewhat similar objection : “ Where the complaint alleges that the plaintiff is entitled to the possession of certain described property, which is unlawfully detained by the defendant, and the possession of which the plaintiff prays to recover, a general verdict for the plaintiff is a finding that he is entitled to the possession of all the property described in the complaint. Again, in this action, brought under a special statute of the United States in support of an adverse claim, but one estate is involved in the controversy. No title in fee is or can be established. That remains in the United States, and the only question presented is the priority of right to pur-vol. clxxv — 19 290 OCTOBER TERM, 1899 Opinion of the Court. chase the fee. Hence the inapplicability of a statute regulating generally actions for the recovery of real estate, in which actions different kinds of title may be sufficient to sustain the right of recovery. It would be purely surplusage to find in terms a priority of the right to purchase when that is the only question which can be litigated in such statutory action.” This principle applies more strongly to the present case, in which the real nature of the plaintiff’s estate in the property is truly alleged as ownership by right of prior occupancy and actual possession, and was so found to be by the trial court. The same view of the nature of a title to a lot in a townsite in Alaska, under these acts of Congress, was expressed by the District Court of the United States for the District of Alaska, in the case of Carroll n. Price, 81 Fed. Rep. 137. As, then, the only kind of estate that could be held was that of possession, it was sufficient for the plaintiff to allege that his was of that nature. It is next contended on behalf of the plaintiff in error that, even if the complaint should be held otherwise sufficient, yet the action must fail because coming within section 3524, Hill’s Oregon Code, which is as follows: “ In an action to recover the possession of any land, tenement or other real property, where the entry is forcible, or where the possession is unlawfully held by force, the merits of the title shall not be inquired into; and three years’ quiet possession of the premises immediately preceding the commencement of such action by the party in possession, or those under whom he holds, may be pleaded in bar thereof, unless the estate of such party is ended.” It is argued that, as the complaint was filed in the court below May 25, 1896, more than five years from the day of entry alleged in the complaint, and as the defendant pleaded in bar of the action the three years’ quiet possession of the premises immediately preceding its commencement, the defendant is entitled to a judgment of reversal. If this were indeed an action in forcible entry and detainer, and as the complaint shows on its face that the defendant’s possession was longer than three years prior to the commence- BRADFIELD v. ROBERTS. 291 Syllabus. went of the action, then the defendant was entitled to have had his demurrer sustained. But he did not stand on his demurrer, but availed himself of the court’s leave to answer; and hence it might well be questioned whether it was competent for him to again raise in his answer a question already ruled against him under his demurrer. But this it is unnecessary to consider, because it is altogether clear that, on the complaint and the facts found, this was not an action for a forcible entry and detainer, under the section of the Oregon Code pleaded by the defendant, but was an action of ejectment to which the statute pleaded did not apply. The judgment of the District Court of the United States for the District of Alaska is Affirmed. BRADFIELD v. ROBERTS. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 76. Argued October 27, 1899.—Decided December 4,1899. The Providence Hospital of the city of Washington was incorporated by the act of Congress of August 7, 1864, c. 50, 13 Stat. 43, which gave to it “ full power and all the rights of opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the said corporation.” By the act of March 3, 1897, c. 387, 29 Stat. 665, making appropriations for the District of Columbia, an appropriation of $30,000 was made for two isolating buildings, to be constructed in the discretion of the Commissioners of the District, on the grounds of two hospitals, and to be operated as a part of such hospitals. Under that authority the Commissioners made an agreement with the Providence Hospital, which was a private hospital, in charge of sisters of the Roman Catholic Church, for the construction of an isolating building or ward on the hospital grounds, and for the receipt therein of poor patients sent there by the Commissioners, and for payments by the District on that account to the hospital. Held, that the agreement was one which it was within the power of the Commissioners to make; and that it did not conflict with the provision in Article I of the Amendments to the Constitution that “ Congress shall make no law respecting an establishment of religion.” 292 OCTOBER TERM, 1899. Statement of the Case. This was a suit in equity, brought by the appellant to enjoin the defendant from paying any moneys to the directors of Providence Hospital in the city of Washington, under an agreement entered into between the Commissioners of the District of Columbia and the directors of the hospital, by virtue of the authority of an act of Congress, because of the alleged invalidity of the agreement for the reasons stated in the bill of complaint. In that bill complainant represents that he is a citizen and taxpayer of the United States and a resident of the District of Columbia, that the defendant is the Treasurer of the United States, and the object of the suit is to enjoin him from paying to or on account of Providence Hospital, in the city of Washington, District of Columbia, any moneys belonging to the United States, by virtue of a contract between the Surgeon General of the Army and the directors of that hospital, or by virtue of an agreement between the Commissioners of the District of Columbia and such directors, under the authority of an appropriation contained in the sundry civil appropriation bill for the District of Columbia, approved June 4, 1897. Complainant further alleged in his bill: “ That the said Providence Hospital is a private eleemosynary corporation, and that to the best of the complainant’s knowledge and belief it is composed of members of a monastic order or sisterhood of the Roman Catholic Church, and is conducted under the auspices of said church; that the title to its property is vested in the ‘ Sisters of Charity of Emmitsburg, Maryland ; ’ that it was incorporated by a special act of Congress approved April 8, 1864, whereby, in addition to the usual powers of bodies corporate and politic, it was invested specially with ‘ full power and all the rights of opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of said corporation.’ “ That in view of the sectarian character of said Providence Hospital and the specific and limited object of its creation, the said contract between the same and the Surgeon General of the Army and also the said agreement between the same and BRADFIELD v. ROBERTS. 293 Statement of the Case. the Commissioners of the District of Columbia are unauthorized by law, and, moreover, involve a principle and a*precedent for the appropriation of the funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that Congress shall make no law respecting a religious establishment, and also a precedent for giving to religious societies a legal agency in carrying into effect a public and civil duty which would, if once established, speedily obliterate the essential distinction between civil and religious functions. “ That the complainant and all other citizens and taxpayers of the United States are injured by reason of the said contract and the said agreement, in virtue whereof the public funds are being used and pledged for the advancement and support of a private and sectarian corporation, and that they will suffer irreparable damage if the same are allowed to be carried into full effect by means of payments made through or by the said defendant out of the Treasury of the United States, contrary to the Constitution and declared policy of the Government.” The agreement above mentioned, between the Commissioners of the District of Columbia and' the directors of Providence Hospital, is annexed to the bill, and is as follows : “ Articles of agreement entered into this sixteenth day of August, in the year of our Lord one thousand eight hundred and ninety-seven, by and between the Commissioners of the District of Columbia and the directors of Providence Hospital, a body corporate in said District, whereby it is agreed on the part of the Commissioners of the District of Columbia — “That they will erect on the grounds of said hospital an isolating building or ward for the treatment of minor contagious diseases, said building or ward to be erected without expense to said hospital, except such as it may elect, but to be paid out of an appropriation for that purpose contained in the District appropriation bill approved March 3, 1897, on plans to be furnished by the said Commissioners, and approved by the health officer of the District of Columbia, and that when the said building or ward is fully completed it shall be turned 294 OCTOBER TERM, 1899. Statement of the Case. over to the officers of Providence Hospital, subject to the following provisions: “ First. That two thirds of the entire capacity of said isolating building or ward shall be reserved for the use of such poor patients as shall be sent there by the Commissioners of the District from time to time through the proper officers. For each such patient said Commissioners and their successors in office are to pay at the rate of two hundred and fifty dollars ($250) per annum, for such a time as such patient may be in the hospital, subject to annual appropriations by Congress. “ Second. That persons able to pay for treatment may make such arrangements for entering the said building or ward as shall be determined by those in charge thereof, and such persons will pay the said Providence Hospital reasonable compensation for such treatment, to be fixed by the hospital authorities, but such persons shall have the privilege of selecting their own physicians and nurses, and in case physicians and nurses are selected other than those assigned by the hospital, it shall be at the expense of the patient making the request. “ And said Providence Hospital agrees to always maintain a neutral zone of forty (40) feet around said isolating building or ward and grounds connected therewith to which patients of said ward have access. “ As witness the signatures and seals of John W. Ross, John B. Wight and Edward Burr, acting Commissioners of the District of Columbia, and the corporate seal of the said The Directors of Providence Hospital and the signature of president thereof, this sixteenth day of August, a.d. 1897.” The contract, if any, between the'directors and the Surgeon General of the Army is not set forth in the bill, and the contents or conditions thereof do not in any way appear. The defendant demurred to the bill on the ground that the complainant had not in and by his bill shown any right or title to maintain the same; also upon*the further ground that the complainant had not stated such a case as entitled him to the relief thereby prayed or any relief as against the defendant. BRADFIELD v. ROBERTS. 295 Opinion of the Court. Complainant joined issue upon the demurrer, and at a term of the Supreme Court of the District of Columbia the demurrer was overruled and the injunction granted as prayed for. 26 Wash. Law Kep. 84. Upon appeal to the Court of Appeals of the District the judgment was reversed, and the case remanded to the Supreme Court, with directions to dismiss the bill. 12 App. D. C. 453. Whereupon the complainant appealed to this court. Mr. Joseph Bradfield, appellant, in person for appellant. Mr. Assistant Attorney General Hoyt for appellee. Mr. Attorney General was on his brief. Me. Justice Peckham, after stating the facts, delivered the opinion of the court. Passing the various objections made to the maintenance of this suit on account of an alleged defect of parties, and also in regard to the character in which the complainant sues, merely that of a citizen and taxpayer of the United States and a resident of the District of Columbia, we come to the main question as to the validity of the agreement between the Commissioners of the District and the directors of the hospital, founded upon the appropriation contained in the act of Congress, the contention being that the agreement if carried out would result in an appropriation by Congress of money to a religious society, thereby violating the constitutional provision which forbids Congress from passing any law respecting an establishment of religion. Art. I of the Amendments to Constitution. The appropriation is to be found in the general appropriation act for the government of the District of Columbia, approved March 3, 1897, c. 387, 29 Stat. 665, 679. It reads: “ For two isolating buildings, to be constructed, in the discretion of the Commissioners of the District of Columbia, on the grounds of two hospitals, and to be operated as a part of such hospitals, thirty thousand dollars.” Acting under the 296 OCTOBER TERM, 1899. Opinion of the Court. authority of this appropriation the Commissioners entered into the agreement in question. As the bill alleges that Providence Hospital was incorporated by an act of Congress, approved April 8, 1864, c. 50, 13 Stat. 43, and assumes to give some of its provisions, the act thus referred to is substantially made a part of the bill, and it is therefore set forth in the margin.1 The act shows that the individuals named therein and their successors in office were incorporated under the .name of “ The Directors of Providence Hospital,” with power to 1An Act to incorporate Providence Hospital of the City of Washington, District of Columbia. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Lucy Gwynn, Teresa Angela Costello, Sarah McDonald, Mary E. Spalding and Mary Carroll, and their successors in office, are hereby made, declared and constituted a corporation and body politic, in law and in fact, under the name and style of the directors of Providence Hospital, and by that name they shall be and are hereby made capable in law to sue and be sued, to plead and be impleaded, in any court within the county of Washington, in the District of Columbia; to have and use a common seal, and to alter or amend the same at pleasure; to have, purchase, receive, possess and enjoy any estate in lands, tenements, annuities, goods, chattels, .moneys or effects, and to grant, devise or dispose of the same in such manner as they may deem most for the interest of the hospital: Provided, That the real estate held by said corporation shall not exceed in value the sum of one hundred and fifty thousand dollars. Sec. 2. And be it further enacted, That the said corporation and body politic shall have full power to appoint from their own body a president and such other officers as they may deem necessary for the purposes of their creation; and in case of the death, resignation or refusal to serve, of any of their number, the remaining members shall elect and appoint other persons in lieu of those whose places may have been vacated; and the said corporation shall have full power and all the rights of opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the said corporation. Sec. 3. And be it further enacted, That the said corporation shall also have and enjoy full power and authority to make such by-laws, rules and regulations, as may be necessary for the general accomplishment of the objects of said hospital: Provided, That they be not inconsistent with the laws in force in the District of Columbia: And provided, further, That this act shall be liable to be amended, altered or repealed, at the pleasure of Congress. BRADFIELD v. ROBERTS. 297 Opinion of the Court. receive, hold and convey personal and real property, as provided in its first section. By the second section the corporation was granted “full power and all the rights of opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the said corporation.” The third section gave it full power to make such by-laws, rules and regulations that might be necessary for the general accomplishment of the objects of the hospital, not inconsistent with the laws in force in the District of Columbia. Nothing is said about religion or about the religious faith of the incorporators of this institution in the act of incorporation. It is simply the ordinary case of the incorporation of a hospital for the purposes for which such an institution is generally conducted. It is claimed that the allegation in the complainant’s bill, that the said “ Providence Hospital is a private eleemosynary corporation, and that to the best of complainant’s knowledge and belief it is composed of members of a monastic order or sisterhood of the Roman Catholic Church, and is conducted under the auspices of said church ; that the title to its property is vested in the Sisters of Charity of Emmitsburg, Maryland,” renders the agreement void for the reason therein stated, which is that Congress has no power to make “a law respecting a religious establishment,” a phrase which is not synonymous with that used in the Constitution, which prohibits the passage of a law “ respecting an establishment of religion.” If we were to assume, for the purpose of this question only, that under this appropriation an agreement with a religious corporation of the tenor of this agreement would be invalid, as resulting indirectly in the passage of an act respecting an establishment of religion, we are unable to see that the complainant in his bill shows that the corporation is of the kind described, but on the contrary he has clearly shown that it is not. The above-mentioned allegations in the complainant’s bill do not change the legal character of the corporation or render on that account a religious or sectarian body. Assuming 298 OCTOBER TERM, 1899. Opinion of the Court. that the hospital is a private eleemosynary corporation, .the fact that its members, according to the belief of the complainant^ are members of a monastic order or sisterhood of the Roman Catholic Church, and the further fact that the hospital is conducted under the auspices of said church, are wholly immaterial, as is also the allegation regarding the title to its property. The statute provides as to its property and makes no provision for its being held by any one other than itself. The facts above stated do not in the least change the legal character of the hospital, or make a religious corporation out of a purely secular one as constituted by the law of its being. Whether the individuals who compose the corporation under its charter happen to be all Roman Catholics, or all Methodists, or Presbyterians, or Unitarians, or members of any other religious organization, or of no organization at all, is of not the slightest consequence with reference to the law of its incorporation, nor can the individual beliefs upon religious matters of the various incorporators be inquired into. Nor is it material that the hospital may be conducted under the auspices of the Roman Catholic Church. To be conducted under the auspices is to be conducted under the influence or patronage of that church. The meaning of the allegation is that the church exercises great and perhaps controlling influence over the management of the hospital. It must, however, be managed pursuant to the law of its being. That the influence of any particular church may be powerful over the members of a non-sectarian and secular corporation, incorporated for a certain defined purpose and with clearly stated powers, is surely not sufficient to convert such a corporation into a religious or sectarian body. That fact does not alter the legal character of the corporation, which is incorporated under an act of Congress, and its powers, duties and character are to be solely measured by the charter under which it alone has any legal existence. There is no allegation that its hospital work is confined to members of that church or that in its management the hospital has been conducted so as to violate its charter in the smallest degree. It is simply the case of a secular corporation being managed by people BRADFIELD v. ROBERTS. 299 Opinion of the Court. who hold to the doctrines of the Roman Catholic Church, but who nevertheless are managing the corporation according to the law under which it exists. The charter itself does not limit the exercise of its corporate powers to* the members of any particular religious denomination, but on the contrary those powers are to be exercised in favor of any one seeking the ministrations of that kind of an institution. All that can be said of the corporation itself is that it has been incorporated by an act of Congress, and for its legal powers and duties that act must be exclusively referred to. As stated in the opinion of the Court of Appeals, this corporation “ is not declared the trustee of any church or religious society. Its property is to be acquired in its own name and for its own purposes; that property and its business are to be managed in its own way, subject to no visitation, supervision or control by any ecclesiastical authority whatever, but only to that of the Government which created it. In respect then of its creation, organization, management and ownership of property it is an ordinary private corporation whose rights are determinable by the law of the land, and the religious opinions of whose members are not subjects of inquiry.” It is not contended that Congress has no power in the District to appropriate money for the purpose expressed in the appropriation, and it is not doubted that it has power to authorize the Commissioners of the District of Columbia to enter into a contract with the trustees of an incorporated hospital for the purposes mentioned in the agreement in this case, and the only objection set up is the alleged “ sectarian character of the hospital and the specific and limited object of its creation.” The other allegations in complainant’s bill are simply statements of his opinion in regard to the results necessarily flowing from the appropriation in question when connected with the agreement mentioned. The act of Congress, however, shows there is nothing sectarian in the corporation, and “ the specific and limited object of its creation ” is the opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as 300 OCTOBER TERM, 1899. Statement of the Case. may place themselves under the treatment and care of the corporation. To make the agreement was within the discretion of the Commissioners, and was a fair exercise thereof. The right reserved in the third section of the charter to amend, alter or repeal the act leaves full power in Congress to remedy any abuse of the charter privileges. Without adverting to any other objections to the maintenance of this suit, it is plain that complainant wholly fails to set forth a cause of action, and the bill was properly dismissed by the Court of Appeals, and its decree will, therefore, be Affirmed. NILES v. CEDAR POINT CLUB. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 80. Argued November 16,17,1899. —Decided December 4,1899. Generally, in public surveys, a meander line is a line which courses the banks of navigable streams or other navigable waters ; but in this case it distinctly appears from the field notes and the plat, that the deputy surveyor by whom it was surveyed in 1834 and 1835, and whose acts were approved by the surveyor general, stopped his surveys at what he called a marsh, which intervened between the point where he stopped and the waters of Lake Erie, and thus limited the land which the United States * in 1844, following that survey, patented to the person under whom the appellant claims, and thus excluded the marsh, leaving to subsequent measurements the actual determination of the line of separation between the lands thus patented, and those which the Government did not propose to convey. One receiving a patent will not ordinarily be heard to insist that by reason of an error on the part of a surveyor, more land was bought than was paid for, or than the Government was offering for sale. This marsh was properly held not to be regarded as land continuously submerged. This controversy is between two claimants to land, one holding a patent therefor from the United States and the other claiming it by virtue of its contiguity to other land for which NILES v. CEDAR POINT CLUB. 301 Statement of the Case. . a United States patent was held. A statement of facts was agreed upon by the parties, and that statement, with some slight additional testimony, formed the basis of a decree in the Circuit Court in favor of the plaintiff, which was affirmed by the Court of Appeals, 54 U. S. App. 668, to review which last decision this appeal was taken. The facts are these: In the years 1834 and 1835 Ambrose Rice, a deputy surveyor, surveyed and subdivided into sections and quarter sections fractional township 9 south, in range 9 east, and townships 9 and 10 south, in range 10 east, the same being situated in the northern part of Ohio and adjacent to Lake Erie. From his field notes, duly certified to the surveyor general of that land district, the latter prepared a correct plat of the townships, showing the subdivisions thereof, and marking all the actual survey lines and the corners designated by said survey. By the field notes and plat certain sections appear to be fractional, the line on the north being meandered in a general direction from the northwest to the southeast. The tract to the north of this line was described as “ flag marsh ” and “ impassable marsh and water.” Paragraphs 4, 5 and 6 of said agreed statement of facts are as follows: “ 4. Said plat showed the northerly line of the mainland portion of said survey, a line with its intersection of each township and section line, evidenced by a post placed at such intersection, as the said line was actually surveyed and marked as shown by said certified field notes, beginning on the west line of section 19, in town 9 south, range 9 east, and thence running in a general easterly and southerly, but meandering and tortuous course to and across the south line of section 11, in town 10 south, range 10 east. “ 5. The said plat showed the said line of said survey from the west line of said township to a point 2 chains easterly from its intersection of the line between sections 21 and 22 in town 9, range 9, to be the shore of Maumee Bay ; and from that point southerly and easterly the plat shows this line on the northerly and easterly sides of fractional sections 22, 27, 26 and 25 in town 9, range 9, sections 30, 31 and 32 in town 9, range 10, and sections 4, 9, 10 and 11 in town 10, range 10, to be the boundary 302 OCTOBER TERM, 1899. Statement of the Case. of what is called the ‘ flag marsh ’ and ‘ impassable marsh and water.’ “ 6. As shown in and upon said original plat, somewhat east of north from the point where this line of the survey crosses the north and south quarter line through section twenty-two, town 9, range 9, and about a mile and a half from it, began an island called Cedar Island. This extended northerly for more than half a mile, and then southeasterly to a point opposite the said line along the northerly side of section 25 in said township. A short distance southeast of this another island began and extended southeasterly beyond the north line of section 5, in town 10, range 10, projected easterly. Then there was a narrow inlet. A third island began on the easterly side of this inlet, and extended southeasterly almost to what would be the east line of section 11, town 10, range 10. Between these islands and the tortuous line above described was the space designated ‘flag marsh’ and ‘impassable marsh and water.’ No surveyed lines other than the township lines crossed either the intervening marsh or the islands. The’north western island was named ‘ Cedar ’ and was the largest. The plat showed it as containing 53.83 acres, all in town 9, range 9. The one next east of it was marked as ‘ Sandy Island.’ The plat showed that 7.52 acres of it were in town 9, range 9; 28.49 acres in town 9, range 10, and 1.18 acres in town 10, range 10. The southeastern island was marked as ‘Crane Island,’ containing; 18.38 acres, all in town 10, range 10. From the northwest end of Cedar Island to the southeast end of Crane Island was about nine and one half miles. Norman Strait separated Cedar and Sandy islands. Lily Strait lay between Sandy and Crane, and Crane Creek entered the lake at the east end of Crane Island. “ The field notes on the plat showed that the circumference of each island was surveyed or meandered. The plat and marginal field notes also show that the southerly edge of the ‘ flag marsh,’ ‘ impassable marsh and water ’ was surveyed, and that the lines of the fractional sections southerly of the said marsh and water were identical with the southerly edge of the marsh. The computed areas of the fractional sections and of their respective subdivisions, as shown upon the said plat, con- NILES v. CEDAR POINT CLUB. 303 Statement of the Case. formed to the area included within the said surveyed lines, and did not nor any thereof include any part of either marsh, water or islands.” In July, 1844, patents for several of these fractional sections facing on this marsh were issued to Margaret Bailey, under whom the appellant claims. The patents each recite the number of acres granted, and each states that the tract is a fractional section “ according to the official plat of the survey of said lands returned to the General Land Office by the surveyor general, which said tract has been purchased by the said Margaret Bailey.” In 1852 the State of Ohio applied under the Swamp Land Act of September 28, 1850, c. 84, 9 Stat. 519, for several thousand acres of lands within the State, among them these marsh lands. This application was, so far as these lands are concerned, rejected by the land department, the official minute on the application being “not swamp and nearly all sold.” In 1881 John B. Marston, under instruction from the General Land Office, surveyed and subdivided into sections and quarter sections the area marked upon the surveyor general’s plat, above referred to, as “ flag marsh ” and “ impassable marsh and water.” The field notes of this survey were returned to the General Land Office and approved, and a plat made, as required. Thereafter the lands thus surveyed and platted were patented by the United States, and the title so conveyed passed by subsequent deeds to the plaintiff below, appellee here. Disclosing the condition of these lands, paragraphs 16 and 17 of the statement of facts are as follows: “ 16. At the time of the making of the survey by Ambrose Rice the waters of Lake Erie were above their ordinary stage, and there was more than the usual volume of water standing upon the land in controversy herein and flowing to and upon the same from the large bodies of land now in Ottawa, Wood and Lucas counties, respectively, having their drainage to and through the said premises in controversy herein. 17. The general character, description and condition of the said land surveyed by said Marston was by him correctly set forth under the title ‘ General Description ’ in the field 304 OCTOBER TERM, 1899. Statement of the Case. notes of the said survey so as aforesaid by him certified to the Commissioner of the General Land Office. “ That concerning the portion of said survey in town 9 south, range 9 east, reciting, to wit: “ ‘ The surface of that part of this fractional township, comprised in this survey, is covered with a deep marsh of grass, canes or reeds, wild rice, etc. Many parts of it, particularly in the south and west parts, are mown for a kind of coarse hay. Other parts are filled with bogs and pond holes that do not dry in summer. It receives the natural drainage from the woods on the south and west, which, without any well-defined channel, finds its way across the marsh to the lake. Again, in heavy gales of wind it is subject to inundations from the lake, which, upon the subsidence of the gale or change of direction in the wind, slowly finds its way out again into the lake. It is bounded along the lake by a sand beach averaging 1 chain in width and 3 feet in height.’ “ That concerning the portion of said survey in town 9 south, range 10 east, reciting, to wit: “ ‘ The surface of this fractional township is covered with a deep marsh of grass, canes or reeds, wild rice, etc. Much of the south part can be mown for marsh hay, being in a measure drained by a canal that has been constructed in the township south. Other parts are filled with bogs and pond holes that do not dry in summer. It receives the drainage from woods on the south and west, which spreads over the entire surface and without any positive channel finds its way to the lake. “ ‘ Again the township is subject to inundations from the lake during heavy gales of wind, which, upon the termination of the gale or a change in the direction of the wind, slowly finds its way back into the lake. This fractional township is bounded on the northeast by Lake Erie; between the lake and the marsh proper is a sand beach, averaging 3 feet high and 1 chain in width, generally covered with bushes and small trees of oak, poplar, willow and cottonwood.’ “ That concerning the portion of said survey in town 10 south, range 10 east, reciting, to wit; NILES v. CEDAR POINT CLUB. 305 Opinion of the Court. “‘ The descripton for this township must necessarily be similar to that of the two preceding townships. The surface of that part of the township comprised in this survey is one large swampy marsh land, generally very wet and boggy. Its surface is covered with grass, canes, (or joint grass,) wild rice and such like marsh productions, reaching to a heio-ht of ten or more feet. Some parts, especially on sections 10 and 11, can be pastured, but the larger portion is filled with bogs and pond holes, connected by narrow and tortuous channels. “‘It receives the drainage from the woods on the south and west and is subject to inundations from the lake. On the prevalence of strong southwest winds this water flows from the marsh into the lake, and upon the occurrence of northeast winds the lake floods the marsh. The principal outlets and inlets are Crane Creek and Ward’s Canal. This canal is an improvement made by C. B. Ward, of Detroit, Michigan, on section 4, and running across section 5 for the purpose of getting vessels and ship timber from his shipyard on section 5. It is built without locks and is really only a great ditch. Water-way, 50 feet; depth, 7 feet. The buildings (or sheds) at the fishing stations 4 and 11 are the only other improvements. “ ‘ A comparison of the survey made by Ambrose Rice in 1834 and 1835 with that made by John B. Marston in 1881 indicates that Sandy and Crane Islands washed somewhat shoreward during the period intervening between the making of said respective surveys.’ ” Mr. Henry T. Niles for appellant. Mr. Frank C. Dougherty was on his brief. Mr. Thomas Emery for appellee. Mr. Justice Brewer, after making the above statement of t ie case, delivered the opinion of the court. But little can be added to the opinion of the Court of ppeals, whose conclusions we approve. The meander line VOL. CLXXV—20 306 OCTOBER TERM, 1899. Opinion of the Court. run by surveyor Rice along the northern borders of the tracts patented to Margaret Bailey may not have been strictly a line of boundary, Railroad Company v. Schurmeir, 7 Wall. 272; Hardin v. Jordan, 140 U. S. 371, 380; Horne v. Smith, 159 U. S. 40; but it indicated that there was something which had stopped the survey, which limited the area of the land which the United States was proposing to convey, and left to subsequent measurements the actual determination of the line of separation between the land conveyed and that which the Government did not propose to convey. Generally, these meandered lines are lines which course the banks of navigable streams or other navigable waters. Here, it appears distinctly from the field notes and the plat that the surveyor, Rice, stopped his surveys at this “ marsh ” as he called it. These surveys were approved and a plat prepared, which was based upon the surveys and field notes, and showed the limits of the tracts which were for sale. The patents, referring in terms to the survey and plat, clearly disclose that the Government was not intending to and did not convey any land which was a part of the marsh. “ The patent itself does not contain all the particulars of the survey, but the grant of the lands is recited to be according to the official plat of the survey of said lands, returned to the General Land Office by the surveyor general, thereby adopting the plat as a part of the instrument.” Hardin v. Jordan, supra. In James v. Howell, 41 Ohio State, 696, 707, the Supreme Court of Ohio, speaking of these very patents and this marsh, said: “The ‘meander’ line along the southerly border of the marsh was, in fact, intended to be the boundary line of the fractional sections.” It may be that surveyor Rice erred in not extending his surveys into this marsh, but his error does not enlarge the title conveyed by the patents to the surveyed fractional sections. The United States sold only the fractional sections, received only pay therefor, an amount fixed by the number of acres conveyed, and one receiving a patent will not ordinarily be heard to insist that by reason of an error on the part of the surveyor more land was bought than was paid for, or than the Government was offering for sale. NILES v. CEDAR POINT CLUB. 307 Opinion of the Court. It may be true that under his contract, the requirements of the statute and the regulations of the land department, Rice should have extended his surveys to the shores of Lake Erie, but he did not do it; he stopped at the borders of this marsh, and the land department in effect approved his action. He evidently thought that the marsh was to be treated as a body of water, a conclusion not unwarranted in view of the finding of excessive high water at that time, but a conclusion which other findings show was not correct. And it may be remarked in passing that the letter of the statute would not limit the surveys to the shores of the lake, for section 2395 Rev. Stat, declares that surveys shall be by running lines at right angles “so as to form townships of six miles square, unless where the line of an Indian reservation or of tracts of land heretofore surveyed or patented, or the course of navigable rivers, may render this impracticable; and in that case this rule must be departed from no further than such particular circumstances require.” But Lake Erie is not an Indian reservation, nor a tract of land heretofore surveyed and patented, nor a navigable river. It is true section 2396, which provides how the boundaries and contents of the several sections, half sections and quarter sections of the public lands of the United States shall be ascertained, says, after stating the rule where all the corners are established, that “ in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary lines shall be ascertained by running from the established corners due north and south or east and west lines, as the case may be, to the water course, Indian boundary line, or other external boundary of such fractional township.” If this recognizes any other external boundary than that which is indicated in section 2395, it does not prescribe what that external boundary shall be; and if the land department treats either a marsh or a lake as such external boundary, who can declare that its action is void ? It is impossible to hold that the lower courts erred in the conclusion that this marsh was not to be regarded as land 308 OCTOBER TERM, 1899. Opinion of the Court. continuously submerged, either under Lake Erie, a navigable lake, and in that case belonging to the State of Ohio, Pollard v. Hagan, 3 How. 212; Weber v. Harbor Commissioners, 18 Wall. 57; McCready v. Virginia, 94 U. S. 391, or under a pond or other similar body of non-navigable inland waters, and therefore generally the property of riparian owners. It was called a marsh by Rice, the first surveyor, is so styled on the plat, and the conditions as disclosed by the agreed statement indicate that it was a body of low swampy land, partly boggy and partly dry, sometimes subject to inundations from Lake Erie or the overflow of the adjacent streams, but not permanently covered with water. Of course, if the fractional sections patented to Margaret Bailey did not border on some body of water there were no riparian rights, and if the conclusion of the trial court that this marsh was land (for swamp and boggy land is to be treated as land) was correct, then whatever changes may have come to the marsh — whether it became more or less subject to overflow — would not alter the fact that the rights of Margaret Bailey, the patentee, were limited to the very lands which were conveyed to her, and for which she paid, and did not extend over the meander line into the territory north. But, it is urged, that the fact that a meandered line was run amounts to a determination by the land department that the surveyed fractional sections bordered upon a body of water, navigable or non-navigable, and that, therefore, the purchaser of these fractional sections was entitled to riparian rights; and this in face of the express declaration of the field notes and plat, that that which was lying beyond the surveyed sections was “flag marsh,” or “impassable marsh and water. But there is no such magic in a meandered line. All that can be said of it is that it is an irregular line which bounds a body of» land, and beyond that boundary there may be found forest or prairie, land or water, Government or Indian reservation. With respect to the contention that the character of this marsh, as it was found to have been, shows that it should have passed to the State of Ohio under the Swamp Land Act, NEW ORLEANS v. STEMPEL. 309 Syllabus. it is enough to say that the State of Ohio applied for it as such, that the application was denied, that this denial was made in 1852, that the land was never patented to the State, and without such patent no fee ever passed, Michigan Land and Lumber Co. v. Rust, 168 U. S. 589, that subsequently the land department treated it as land subject to its control, as public land of the United States, had it surveyed, sold and patented. Whatever claims the State of Ohio may have cannot be litigated in this suit. The legal title passed by the patent to the appellee’s grantors, and that title is certainly good as against a stranger with no equities. We see no error in the decree, and it is Affirmed. NEW ORLEANS v. STEMPEL. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. No. 65. Argued October 25,1899. — Decided December 4,1899. Section 7 of Chapter 106 of the Louisiana Statutes of 1890, after declaring “ that it is made the duty of the tax assessors throughout the State to place upon the assessment list all property subject to taxation,” contained the following provision: “ This shall apply with equal force to any person or persons representing in this State business interests that may claim a domicil elsewhere, the intent and purpose being that no non-resident, either by himself or through any agent, shall transact business here without paying to the State a corresponding tax with that exacted of its own citizens; and all bills receivable, obligations or credits arising from the business done in this State are hereby declared assessable within this State, and at the business domicil of said nonresident, his agent or representative.” The defendant in error who was domiciled in the city of New York was the owner of credits which were evidenced by notes largely secured by mortgages on real estate in New Orleans; and these notes and mortgages were in the city of New Orleans, in possession of an agent of the defendant in error, who collected the interest and principal as it became due and deposited the same in a bank in New Orleans to her credit. Held, that under the act of 1890, as interpreted by the Supreme Court of the State, this property in the hands of 310 OCTOBER TERM, 1899. Statement of the Case. the agent was subject to taxation in New Orleans, and that such taxation did not infringe any right secured by the Federal Constitution. Conceding as matter of fact that the assessment in this case was technically in the wrong name, the error is not one that will justify equitable relief by injunction. Under the issue presented by the pleadings no question of overvaluation was before the court. The rule in such a case is that the Federal courts follow the construction placed upon the statute by the state courts, and in advance of such construction they should not declare property beyond the scope of the statute and exempt from taxation unless it is clear that such is the fact. It is well settled that bank bills and municipal bonds are in such a concrete tangible form that they are subject to taxation where found, irrespective of the domicil of the owner; are subject to levy and sale on execution, and to seizure and delivery under replevin; notes and mortgages are of the same nature. This case came on appeal from the Circuit Court of the United States for the Eastern District of Louisiana. It is a suit brought by the appellee to restrain the collection of taxes levied upon certain personal property which she claims was exempt from taxation. The important facts are these: The plaintiff, as well as the infants whose guardian she is, and for whose benefit she brings this suit, are residents of the State of New York, in which State she has been duly appointed the guardian of their estates. The infants inherited certain property from their grandfather, a resident of Louisiana, whose estate was duly settled in the proper court of that State. By regular proceedings these infants had been adjudged his legal heirs, and she, as guardian, had been put in possession of their property thus inherited. The order of the court, in this respect, was rendered February 14, 1896, and the taxes which were sought to be restrained were those for that year. The assessment, as appears by the assessment roll, was in the name of “ the estate of D. C. McCan; ” was of 815,000, “ money in possession, on deposit, or in hand,” and of $800,000, “ money loaned on interest, all credits and all bills receivable, for money loaned or advanced, or for goods sold; and all credits of any and every description.” The principal contentions o the plaintiff were: First, that included within this persona property was some $228,000 of bonds of the State of Louisiana, NEW ORLEANS v. STEMPEL. 311 Opinion of the Court. taxation of which by the State or any of its municipalities was void, as impairing the obligation of a contract made by the State. Second, that the situs of the loans and credits was in New York, the place of residence of the guardian and wards, and, therefore, being loans and credits without the State of Louisiana they were not subject to taxation therein. Mr. F. C. Zacha/rie for appellants. Mr. J. J. McLoughlin was on his brief. Mr. E. Howard McCaleb for appellee. Mr. Justice Brewer, after making the above statement, delivered the opinion of the court. A preliminary question made by the plaintiff is that she had applied to have the assessment in the name of the estate of D. C. McCan stricken off on the ground that the administration of the estate had been finally closed and the property put into the possession of the heirs, which application was denied ; that, therefore, the assessment was in the wrong name and could not be sustained. We are of the opinion, however, that there was no error in the ruling of the Circuit Court in this respect, for, conceding.that as a matter of fact the assessment was technically in the wrong name, the error is not one that will justify the equitable relief by injunction. The important question is whether the property was subject to taxation. With regard to the contention that certain bonds were included in the assessment which were not subject to taxation on account of the supposed contract of the State of Louisiana, it is sufficient to say that the assessment does not purport to include any bonds. The assessment roll is prepared so as to show in separate columns the different kinds of property included in the assessment. One column is entitled “bonds of all kinds, specifying each kind and their value,” and under this heading there is no mention of any property. So, while it would seem probable from the testimony as to the amount of personal property belonging to the estate that 312 OCTOBER TERM, 1899. Opinion of the Court. the assessor may have in fact included the bonds, yet upon the face of the record the only assessment is of credits and money. It may be a case of overvaluation of assessable property, but under the issue presented by the pleadings that question was not before the court. Under the circumstances disclosed by the testimony, were the money and credits subject to taxation ? It appears that these credits were evidenced by notes largely secured by mortgages on real estate in New Orleans; that these notes and mortgages were in the city of New Orleans, in possession of an agent of the plaintiff, who collected the interest' and principal as it became due and deposited the same in a bank in New Orleans to the credit of the plaintiff. The question, therefore, is distinctly presented whether, because the owners were domiciled in the State of New York, 4he moneys so deposited in a bank within the limits of the State of Louisiana, and the notes secured by mortgages situated and held as above described, were free from taxation in the latter State. Of course, there must be statutory warrant for such taxation, for if the legislature omits any property from the list of taxables the courts are not authorized to correct the omission and adjudge the omitted property to be subject to taxation. We need not extend our inquiries back of the year 1890, for in that year the legislature passed an act amending the revenue statutes of prior years, and the questions, therefore, are whether under that statute, as interpreted by the Supreme Court, these properties were subject to taxation, and, if so subjected, whether any rights secured by the Federal Constitution were thereby infringed. That act is Chapter 106 of the Statutes of 1890,-(Acts La. 1890, 121). Section 1 enumerates among the property subject to taxation “all rights, credits, bonds and securities of all kinds, promissory notes, open accounts and other obligations; all cash.” Section 7 (p. 124), after declaring “ that it is made the duty of the tax assessors throughout the State to place upon the assessment list all property subject to taxation,” closes with this provision: NEW ORLEANS v. STEMPEL. 313 Opinion of the Court. “And this shall apply with equal force to any person or persons representing in this State business interests that may claim a domicil elsewhere, the intent and purpose being that no non-resident, either by himself or through any agent, shall transact business here without paying to the State a corresponding tax with that exacted of its own citizens; and all bills receivable, obligations or credits arising from the business done in this State are hereby declared assessable within this State, and at the business domicil of said non-resident, his agent or representative.” This statute came before the Supreme Court in Liverpool &c. Insurance Co. v. Board of Assessors, 44 La. Ann. 760, where the question was whether a foreign insurance company could be taxed for the amount of the premiums due from its insured living in Louisiana, and it was held that those premiums were simply credits and therefore not taxable, the court saying (page 765): “We are dealing exclusively with the question of credits as assessed, and we hold as decided in 41 La. Ann. 645,1015, ‘ that debts have their situs at the domicil of the creditor,’ because debts are property and have a value, which is inseparable from the creditor, and because the State has no greater power or jurisdiction to tax debts due to non-resident creditors than it has to tax any other personal property of such non-residents which is not situated in the State.” The same proposition was affirmed in the succeeding case, Bailey v. Board of Assessors, 44 La. Ann. 765, the court, however, calling attention to this distinction (page 770): “There is no doubt of the legislative power to modify the rule of comity, mobilia personam sequuntur, in many respects. Movables having an actual situs in the State may be taxed there, though the owner be domiciled elsewhere. Even debts may assume such concrete form in the evidences thereof that they may be similarly subjected when such evidences are situated in the State, as in the case of bank notes, public securities, and, possibly, of negotiable promissory notes, bills of exchange or bonds. “ But as to mere ordinary debts, reduced to no such concrete 314 OCTOBER TERM, 1899. Opinion of the Court. forms, they are not capable of acquiring any situs distinct from the domicil of the creditor, and no legislative power exists to change that situs so far as non-resident creditors are concerned. As said by the Supreme Court of the United States: ‘ To call debts property of the debtors is simply to misuse terms. All the property there can be in the nature of things, in debts, belongs to the creditors to whom they are payable, and follows their domicil wherever that may be. Their debts can have no locality separate from the parties to whom they are due.’ State Tax on Foreign-held Bonds, 15 Wall. 300.” In Clason v. New Orleans, 46 La. Ann. 1, 5, the court affirmed the same proposition in respect to a deposit in a bank to the credit of the non-resident, saying: “We cannot distinguish between the debt due to the plaintiffs by a bank as arising from a deposit to the credit of the firm in money, and that due to it from any other cause.” This decision was, however, qualified in Bluefield Banana Company v. Board of Assessors, 49 La. Ann. 43, the court there saying that the decision rested upon the special facts of that case; that there was really no general deposit, but that the local bank was simply a medium through which the funds of the nonresident kept at the place of his residence were drawn against for the purpose of making payments in Louisana, and in this latter case it was held that, where a non-resident had an agent in New Orleans who disposed of the property of his principal as it was forwarded in the course of business and deposited the proceeds thereof in bank to the credit of his principal, the sum thus deposited was subject to taxation. This is the language of the court after its reference to the Clason case (supra, page 48): “ The case is different here. The foreign corporation had an agent here, where it received and where it sold fruit and received the price for the same. Part of the proceeds were withheld in the hands of the agents for purposes incidental to the prosecution of its business, and part deposited to the credit of the company, subject to the check of its local agent. Also for the prosecution of its business here, and for such other purposes as the company might direct it to be applied to. The company NEW ORLEANS v. STEMPEL. 315 Opinion of the Court. transacted business in New Orleans precisely as did resident business men and firms. It received all the advantages to be derived from the state and city governments which residents received, and we see no reason why it should not be taxed, as claimed in this proceeding, unless there be insuperable legal objections in the way. We find a statute of the State, which by its terms brings them under the operation of state and city taxation, and we are bound to give effect to its provisions unless they be in derogation of the Constitution. The unconstitutionality of the act is not pleaded, and we, of ourselves, see no unconstitutional features in it. The rule mobilia sequuntur personam is a fiction of the law, not resting of itself upon any constitutional foundation, and which gives way before express laws, destroying it in any given case where constitutional requirements themselves do not stand in the way.” This was reaffirmed in Parlier, Tax Collector, v. Strauss <& Co., 49 La. Ann. 1173, in which the court says (page 1175): “The revenue act, in entire accordance with the conceded extent of the taxing power, taxes the movable property of a foreigner. We cannot hold that cash thus liable to taxation is exempted, because for convenience it is deposited in bank and checked on by the owner. It would be a strain to apply to the deposited cash the exemption from taxation accorded to debts in their ordinary significance, due to the foreign creditor.” The last case to which our attention has been called is that of Li/oerpool dec. Insurance Company v. Board of Assessors, 51 La. Ann. p. —; 25 S. Rep. 970. In that case the court reaffirmed its prior rulings that “ a debt due to a non-resident (still in non-concrete form) has its situs at the domicil of the creditor, and not at the domicil of the debtor,” and therefore is not subject to taxation by the State which is the latter’s domicil. At the same time it observed, in its discussion of the question, that the law requiring debts to be assessed for taxation “ was intended for all such debts as are evidenced by note or by mortgage, or that are in such other concrete form as to render it possible to subject them to taxation under the present laws. No attempt has been made since the cited decisions 316 OCTOBER TERM, 1899. Opinion of the Court. were rendered to localize ‘ debts ’ or ‘ open accounts ’ such as those upon which the taxes are now claimed.” From this review of the decisions of the Supreme Court of the State it is obvious that moneys, such as those referred to, collected as interest and principal of notes, mortgages and other securities kept within the State and deposited in one of the banks of the State for use or reinvestment, are taxable under the act of 1890. They are property arising from business done in the State; they were tangible property when received by the agent of the plaintiffs, and as such subject to taxation, and their taxability was not, as the court holds, lost by their mere deposit in a bank. It is true that when deposited the moneys became the property of the bank, and for most purposes the relation of debtor and creditor arose between the bank and the depositor; yet as evidently the moneys were to be kept in the State for reinvestment or other use they remained still subject to taxation, according to the decision in 49 La. Ann. 43. With regard to the notes and mortgages, it may be conceded that there is no express decision of the Supreme Court to the effect that they were taxable under the law of 1890, yet the reasoning of that court in several cases and its declarations, although perhaps only dicta, show that clearly in its judgment they had a local situs within the State, and were by the statute of 1890 subject to taxation. When the question is whether property is exempt from taxation, and that exemption depends alone on a true construction of a statute of the State, the Federal courts should be slow to declare an exemption in advance of any decision by the courts of the State. The rule in such a case is that the Federal courts follow the construction placed upon the statute by the state courts, and in advance of such construction they should not declare property beyond the scope of the statute and exempt from taxation unless it is clear that such is the fact. In other words, they should not release any property within the State from its liability to state taxation unless it is obvious that the statutes of the State warrant such exemption, or unless the mandates of the Federal Constitution compel it. NEW ORLEANS v. STEMPEL. 317 Opinion of the Court. If we look to the decisions of other States we find the frequent ruling that when an indebtedness has taken a concrete form and become evidenced by note, bill, mortgage or other written instrument, and that written instrument evidencing the indebtedness is left within the State in the hands of an agent of the non-resident owner, to be by him used for the purposes of collection and deposit or reinvestment within the State, its taxable situs is in the State. See Catlin n. Hull, 21 Vermont, 152, in which the rule was thus announced (pages 159,161): “ It is undoubtedly true that, by the generally acknowledged principles of public law, personal chattels follow the person of the owner, and that, upon his death, they are to be distributed according to the law of his domicil; and in general, any conveyance of chattels, good by the law of his own domicil, will be good elsewhere. But this rule is merely a legal fiction, adopted from considerations of general convenience and policy, for the benefit of commerce and to enable persons to dispose of their property, at their decease, agreeably to their wishes, without being embarrassed by their want of knowledge in relation to the laws of the country, where the same is situated. But even this doctrine is to be received and understood with this limitation, that there is no positive law of the country, where the property is in fact, which contravenes the law of his domicil; for if there is, the law of the owner’s domicil must yield to the law of the State, where the property is in fact situate.” * * * * * “We are not only satisfied that this method of taxation is well founded in principle and upon authority, but we think it entirely just and equitable that, if persons residing abroad bring their property and invest it in this State, for the purpose of deriving profit from its use and employment here, and thus avail themselves of the benefits and advantages of our laws for the protection of their property, their property should yield its due proportion towards the support of the government, which thus protects it.” In Goldgart v. People, 106 Illinois, 25, 28, the court said: 318 OCTOBER TERM, 1899. Opinion of the Court. “ If the owner is absent, but the credits are in fact here, in the hands of an agent, for renewal or collection, with the view of reloaning the money by the agent as a permanent business, they have a situs here for the purpose of taxation, and there is jurisdiction over the thing.” In Wilcox v. Ellis, 14 Kansas, 588, the power of the State to tax a citizen and resident of Kansas, on money due him in Illinois, evidenced by a note, which was left in Illinois for collection, was denied, the court saying, (603) after referring to the maxim, mobilia sequuntur personam: “ This maxim is at most only a legal fiction; and Blackstone, speaking of legal fictions, says, ‘this maxim is invariably observed, that no fiction shall extend to work an injury, its proper operation being to prevent a mischief, or remedy an inconvenience that might result from the general rule of law.’ 3 Blackstone Com. 43. Now as the State of Illinois and not Kansas must furnish the plaintiff with all the remedies that he may have for the enforcement of all his rights connected with said notes, debts, etc., it would seem more just, if said debt is to be taxed at all, that the State of Illinois and not Kansas should tax it, and that we should not resort to legal fictions to give the State of Kansas the right to tax it.” The same doctrine was affirmed in Fisher n. Commissioners of Rush County, 19 Kansas, 414, and again in Blain v. Irby, 25 Kansas, 499, 501, in which the court said, referring to promissory notes: “ They have such an independent situs that they may be taxed where they are situated.” The decisions of the highest courts of New York, in which State these plaintiffs reside, are to the same effect. In People v. Trustees, 48 N. Y. 390, 397, the court said: “ That the furniture in the mansion and the money in the bank were, under these provisions, properly assessable to the relators is not seriously disputed. And I am unable to see why the money due upon the land contracts must not be assessed in the same way. The debts due upon these contracts are personal estate, the same as if they were due upon notes or bonds; and such personal estate may be said to exist where the obligations for payment are held. Notes, bonds and other contracts for the NEW ORLEANS v. STEMPEL. 319 Opinion of the Court. payment of money have always been regarded and treated in the law as personal property. They represent the debts secured by them. They are the subject of larceny, and a transfer of them transfers the debt. If this kind of property does not exist where the obligation is held, where does it exist? It certainly does not exist where the debtor may be and follow his person. And while, for some purposes in the law, by legal fiction, it follows the person of the creditor and exists where he may be, yet it has been settled that, for the purpose of taxation, this legal fiction does not, to the full extent, apply, and that such property belonging to a non-resident creditor may be taxed in the place where the obligations are held by his agent. Hoyt v. Commissioners of Taxes, 23 N. Y. 238; The People n. Gardner, 51 Barb. 352; Catlin v. Hull, 21 Vermont, 152.” This proposition was reaffirmed in People ex rel. v. Smith, 88 N. Y. 576, in which the Court of Appeals of that State held that a resident of New York was not liable to taxation on moneys loaned in the States of Wisconsin and Minnesota on notes and mortgages, which notes and mortgages were held in those States for collection of principal and interest and reinvestment of the funds, it appearing that property so situated within the limits of those States was there subject to taxation. See also Missouri v. St Louis County Court, 47 Missouri, 594, 600; People v. Home Insurance Company, 28 California, 533; Billing-hurst n. Spink County, 5 S. Dak. 84, 98; In re Jefferson, 35 Minn. 215; Poppleton v. Yamhill County, 18 Oregon, 377; Redmond v. Commissioners, 87 N. C. 122 ; Finch v. York County, 19 Nebraska, 50. With reference to the decisions of this court it may be said that there has never been any denial of the power of a State to tax securities situated as these are, while there have been frequent recognitions of its power to separate for purposes of taxation the situs of personal property from the domicil of the owner. In State Tax on Foreign-held Bonds, 15 Wall. 300, it was held that while the taxing power of the State may extend to property within its territorial limits, it cannot to that which is outside those limits, and therefore that bonds issued by a railroad company, although secured by a mortgage on property 320 OCTOBER TERM, 1899. Opinion of the Court. within the State, were not subject to taxation while in the possession of their owners who were non-residents, the court saying : " We are clear that the tax cannot be sustained; that the bonds, being held by non-residents of the State, are only property in their hands, and that they are thus beyond the jurisdiction of the taxing power of the State.” But in the same case, on page 323, the court declared : “ It is undoubtedly true that the actual situs of personal property which has a visible and tangible existence, and not the domicil of its owner, will, in many cases, determine the State in which it may be taxed. The same thing is true of public securities consisting of state bonds and bonds of municipal bodies, and circulating notes of banking institutions; the former, by general usage, have acquired the character of, and are treated as, property in the place where they are found, though removed from the domicil of the owner; the latter are treated and pass as money wherever they are. But other personal property, consisting of bonds, mortgages and debts generally, has no situs independent of the domicil of the owner, and certainly can have none where the instruments, as in the present case, constituting the evidences of debt, are not separated from the possession of the owners.” This last sentence, properly construed, is not to be taken as a denial of the power of the legislature to establish an independent situs for bonds and mortgages when those properties are not in the possession of the owner, but simply that the fiction of law, so often referred to, declares their situs to be that of the domicil of the owner, a declaration which the legislature has no power to disturb when in fact they are in his possession. It was held in that case that a statute requiring the railroad company, the obligor in such bonds, to pay the state tax, and authorizing it to deduct the amount of such taxation from the interest due by the terms of the bond, was as to non-residents a law impairing the obligation of contracts. The same proposition was affirmed in Murray v. Charleston, 96 U. S. 432, where the city of Charleston attempted to tax its obligations held by non-residents of the State. In Tappan v. Merchant^ National Bank, 19 Wall. 490, the ruling was that although shares of stock in national banks were in a cer- NEW ORLEANS v. STEMPEL. 321 Opinion of the Court. tain sense intangible and incorporeal personal property, the law might separate them from the persons of their owners for purposes of taxation, and give them a situs of their own. See also Pullman's Car Company n. Pennsylvania, 141 U. S. 18, 22, where the question of the separation of personal property from the person of the owner for purposes of taxation was discussed at length. As also the case of Savings Society v. Multnomah County, 169 U. S. 421, 427, in which a statute of Oregon taxing the interest of a mortgagee in real estate was adjudged valid, although the owner of the mortgage was a nonresident. Nor is there anything in the case of Kirtland n. Hotchkiss, 100 U. S. 491, conflicting with these decisions. It was there held that a State might tax one of its citizens on bonds belonging to him, although such bonds were secured by mortgage on real estate situated in another State. It was assumed that the situs of such intangible property as a debt evidenced by bond was at the domicil of the owner. There was no legislation attempting to set aside that ordinary rule in respect to the matter of situs. On the contrary, the legislature of the State of Connecticut, from which the case came, plainly reaffirmed the rule, and the court in its opinion summed up the case in these words (p. 499): “ Whether the State of Connecticut shall measure the contribution which persons resident within its jurisdiction shall make by way of taxes, in return for the protection it affords them, by the value of the credits, choses in action, bonds or stocks which they may own (other than such as are exempted or protected from taxation under the Constitution and laws of the United States) is a matter which concerns only the people of that State, with which the Federal Government cannot rightfully interfere.” This matter of situs may be regarded in another aspect. In the absence of statute, bills and notes are treated as choses in action and are not subject to levy and sale on execution, but by the statutes of many States they are made so subject to seizure and sale, as any tangible personal property. 1 Freeman on Executions, sec. 112; 4 Am. & Eng. E. of L. 2d ed. 282; 11 Am. & Eng. E. of L. 2d ed. 623. Among the States referred to in these authorities as having statutes warranting VOL. clxxv—21 322 OCTOBER TERM, 1899. Opinion of the Court. such levy and sale are California, Indiana, Kentucky, New York, Tennessee, Iowa and Louisiana. Brown v. Anderson, 4 Martin, [N. S.] 416, affirmed the rightfulness of such a levy and sale. In Flulcer v. Bullard, 2 La. Ann. 338, it was held that if a note was not taken into the actual possession of the sheriff a sale by him on an execution conveyed no title on the purchaser, the court saying: “ In the case of Simpson v. Allain it was held that, in order to make a valid seizure of tangible property, it is necessary that the sheriff should take the property levied upon into actual possession. 7 Rob. 504. In the case of Gobeau n. The New Orleans de Nashville Bailroad Company, the same doctrine is still more distinctly announced. The court there says: ‘From all the different provisions of our laws above referred to, can it be controverted that, in order to have them carried into effect, the sheriff must necessarily take the property seized into his possession? This is the essence of the seizure. It cannot exist without such possession.’ 6 Rob. 348. It is clear, under these authorities, that the sheriff effected no seizure of the note in controversy, and consequently his subsequent adjudication of it conferred no title on Bailey.” The same doctrine was reaffirmed in Stockton v. Stanbrough, 3 La. Ann. 390. Now if property can have such a situs within the State as to be subject to seizure and sale on execution, it would seem to follow that the State has power to establish a like situs within the State for purposes of taxation. It has also been held that a note may be made the subject of seizure and delivery in a replevin suit. Graff v. Shannon, 7 Iowa, 508; Smith v. Eals, 81 Iowa, 235; Pritchard v. Norwood, 155 Mass. 539. It is well settled that bank bills and municipal bonds are in such a concrete tangible form that they are subject to taxation where found, irrespective of the domicil of the owner; are subject to levy and sale on execution, and to seizure and delivery under replevin; and yet they are but promises to pay — evidences of existing indebtedness. Notes and morgtages are of the same nature; and while they may not have become so generally recognized as tangible personal property, yet they NEW ENGLAND RAILROAD CO. v. CONROY. 323 Syllabus. have such a concrete form that we see no reason why a State may not declare that if found within its limits they shall be subject to taxation. It follows from these considerations that The decree of the Circuit Court must he reversed and the case reman ded for further proceedings. Mr. Justice Harlan and Mr. Justice White dissented. NEW ENGLAND RAILROAD COMPANY v. CONROY. CERTIFICATE from the circuit court of appeals for the FIRST CIRCUIT. No. 42. Argued April 8, 4,1899. —Decided December 4,1899. The negligence of a conductor of a freight train is the negligence of a fellow servant of a brakeman on the same train, who was killed by an accident occurring through that negligence. The negligence of such conductor is not the negligence of the vice or substituted principal or representative of the railroad company running the train, and for which that corporation is responsible. The general rule of law is that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. An employer is not liable for an injury to one employ^ occasioned by the negligence of another engaged in the same general undertaking; it is not necessary that the servants should be engaged in the same operation or particular work; it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and accord-’ngly, in the present case, upon the facts stated, the conductor and the mjured brakeman are to be considered fellow servants within the rule. While the opinion in Chicago, Milwaukee & St. Paul Railroad Co. v. Ross, 112 U. S. 377, contains a lucid exposition of many of the established rules regulating the relations between masters and servants, and particularly 324 OCTOBER TERM, 1899. Statement of the Case. as respects the duties of railroad companies to their various employes, it went too far in holding that a conductor of a freight train is, ipso facto, a vice principal of the company; and in so far as it is to be understood as laying down, as a rule of law to govern in the trial of actions against railroad companies, that the conductor, merely from his position as such, is a vice principal, whose negligence is that of the company, it must be deemed to have been overruled, in effect if not in terms, in the subsequent case of Baltimore & Ohio Bailroad v. Baugh, 149 U. S. 368. This was an action against a railroad corporation by a brakeman in its employ to recover damages for a personal injury caused by the negligence of the conductor of one of its trains. The facts in this case, as stated in the certificate of the Circuit Court of Appeals, were as follows: “ On the fifteenth day of December, 1894, a freight train of the defendant company, drawn by a steam locomotive, and carrying an engineer, a fireman, three brakemen and a conductor, set out from Worcester, in the Commonwealth of Massachusetts, for the city of Providence, in the State of Rhode Island. The train, which consisted of the locomotive and tender, thirteen or fourteen freight cars, and a caboose car, was heavily loaded with freight. The train left Worcester at about 7.15 p.m. and proceeded on its way without accident, until when at a point on the railroad in the State of Rhode Island, away from telegraphic communication and not at a station, and distant from Providence about sixteen miles, the engineer discovered by the motion and behavior of the locomotive that the train had broken apart. He immediately gave signals with the whistle to indicate to the trainmen upon the rear portion of the train that it was broken off, and continued to repeat those signals, which consisted of three rapid blasts of the whistle with very brief intervals between the different threes, while the locomotive and the one car which remained connected ran three quarters of a mile. The locomotive with the connected car ran about two and three quarters miles when the engineer, not being able to see anything of the separated part of the train, and supposing that his signals had been heard and its advance stopped, slowed up the engine preparatory to sending the fireman back NEW ENGLAND RAILROAD CO. v. CONROY. 325 Statement of the Case. with the lantern and to take steps for restoring the connection of the parts of the train. Before speed had been so reduced that the fireman could alight from the train, the rear portion was discovered close at hand and approaching at great speed. The fireman gave notice of this fact and a signal for the locomotive to go ahead, but before it could gain speed to get away a collision between the two parts of the train took place, and one Gregory, a brakeman, who was on the top of the car still attached to the engine, was thrown from the car by the shock and instantly killed. “ The three brakemen on the train were a head, a middle, and a rear brakeman. Gregory was the head brakeman, and at once, on discovery of the separation of the train, went to the top of the only car left with the engine. The conductor and the middle and rear brakemen had been riding in the caboose car at the rear end of the train, and did not hear the warning signals which the engineer gave with the whistle, nor know that the train had broken until the collision, but remained all the time in the caboose. The night was cold and clear. The accident was near midnight. “The negligence complained of consisted in the alleged failure of the conductor in control of the men and in charge of the train, in view of the character of the night, the character of the road in respect to grades and curves, the speed at which the train was run, and the liability of the train to part asunder at that place, to properly watch and supervise its movements, and the fact that he, in the full knowledge that the rear and middle brakemen were in the caboose, away from their brakes, permitted them to remain there, and failed to order them to the brakes.” The jury were instructed: “ The conductor of the train, under the rules laid down by the rules of the Supreme Court of the United States, is in a peculiar and special condition. The conductor of the train, as I understand the theory of the rule of the Supreme Court of the United States, is, in a certain sense, between stations, at least, is in a certain sense like the master of a ship on a voyage; he is beyond the reach of orders when running his train between stations; and there- 326 OCTOBER TERM, 1899. Opinion of the Court. fore as a matter of necessity, as a matter of public policy, I suppose, he must be held to stand in the place of the corporation itself. . . . If you find in this particular case, from the evidence in the case and such common knowledge as jurymen are entitled to use, that by the rules of this road . . . the conductor gave directions to the people who worked on the train, gave directions to start the train, gave directions to stop the train, gave directions as to the location and position of the different men on the train, and also had the general management of the train and control over it when running between stations, then I say to you, gentlemen, that he for this case represents the company, and if injuries resulted from his negligent acts the company is responsible.” The jury returned a verdict for the plaintiff, and assessed damages in the sum of four thousand two hundred and fifty dollars. The defendant brought the case by writ of error to the United States Circuit Court of Appeals for the First Circuit. And, upon consideration of the case, after full argument, the judges of that court desired the instructions of the Supreme Court upon the following questions of law arising on the facts as before stated : 1st. Whether the negligence of the conductor was the negligence of a fellow servant of the deceased brakeman ? 2d. Whether the negligence of the conductor was the negligence of its vice or substituted principal or representative, for which the corporation is responsible ? Mr. Frank A. Farnham for plaintiff in error. Mr. James E. Cotter for defendant in error. Mr. Justice Shiras, after making the above statement, delivered the opinion of the court. It may be doubted whether the questions of law presented to us are really raised by the facts as certified. No facts are stated from which the jury might have found that, at the NEW ENGLAND BAILROAD CO. v. CONROY. 327 Opinion of the Court. time and place of the accident, there was any special reason why the brakemen should have been ordered by the conductor to take their places at the brakes, and therefore it is by no means evident that there was any dereliction of duty on the part of the conductor. Nor is it clear that the negligence of the conductor, if negligence it was, in permitting the brakemen to ride in the caboose, was the proximate cause of Gregory’s injuries. When the train parted the engineer had charge and control of the locomotive and attached cars, and it would seem to have been his duty, as it was within his power, to have prevented the subsequent collision of the detached parts. And, in that event, the case would be ruled by Baltimore <& Ohio Railroad Co. v. Baugh, 149 U. S. 368, where it was held that the engineer and fireman of a locomotive engine,* running alone on a railroad and without any train attached, are fellow servants, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former. However, waiving these suggestions, and proceeding on the assumptions of the courts below that it was the duty of the conductor, at the time and place of the accident, to have the brake-men on the top of the cars where they could apply the hand brakes, and that his failure to do so was the proximate cause of the injury to the plaintiff’s intestate resulting from the subsequent collision of the detached portions of the train, we meet the question, Would, in such a state of facts, the company be liable to the injured brakeman for the negligence of the conductor? There is a general rule of law, established by a great preponderance of judicial authority in the English and in the state and Federal courts, that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. But there have been conflicting views expressed in the application of this rule in cases where the employer is a railroad company, or other large organization, employing a number of servants engaged in distinct and separate departments of service ; and our present inquiry is whether the relation between 328 OCTOBER TERM, 1899. Opinion of the Court. the conductor and the brakeman of a freight train is that of fellow servants, within the rule, or whether the conductor is to be deemed a vice principal, representing the railroad company in such a sense that his negligence is that of the company, the common employer. Unless we are constrained to accept and follow the decision of this court in the case of Chicago, Milwaukee & St. Paul Railway Co. n. Ross, 112 U. S. 377, we have no hesitation in holding, both upon principle and authority, that the employer is not liable for an injury to one employe occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and that, accordingly, in the present case, upon the facts stated, the conductor and the injured brakeman are to be considered fellow servants within the rule. We shall refer to a few of the authorities which establish these principles. Farwell v. Boston & Worcester Railroad, 4 Met. 49, is the leading case in Massachusetts. The question was thus stated by Chief Justice Shaw: “This is an action of new impression in our courts, and involves a principle of great importance. It presents a case, where two persons are in the service and employment of one company, whose business it is to construct and maintain a railroad, and to employ their trains of cars to carry persons and merchandise for hire. They are appointed and employed by the same company to perform separate duties and services, all tending to the accomplishment of one and the same purpose — that of the safe and rapid transmission of the trains; and they are paid for their respective services according to the nature of their respective duties, and the labor and skill required for their proper performance. The question is, NEW ENGLAND RAILROAD CO. v. CONROY. 329 Opinion of the Court. whether, for damages sustained by one of the persons so employed, by means of the carelessness and negligence of another, the party injured has a remedy against the common employer.” After discussing the principles of law and reason applicable to the case, the Chief Justice proceeded: “ In applying these principles to the present case, it appears that the plaintiff was employed by the defendants as an engineer, at the rate of wages usually paid in that employment, being a higher rate than the plaintiff had before received as a machinist. It was a voluntary undertaking on his part, with a full knowledge of the risks incident to the employment, and the loss was sustained by means of an ordinary casualty, caused by the negligence of another servant of the company. Under these circumstances the loss must be deemed to be the result of a pure accident, like those to which all men, in all employments, and at all times, are more or less exposed ; and, like similar losses from accidental causes, it must rest where it first fell, unless the plaintiff has a remedy against the person actually in default; of which we give no opinion. “ It was strongly pressed in the argument, that although this might be so, where two or more servants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security; yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another. But we think this is founded upon a supposed distinction on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same and the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how 330 OCTOBER TERM, 1899. Opinion of the Court. near or how distant must they be to be in the same or different departments ? In a blacksmith’s shop persons working in the same building at different fires may be quite independent of each other, though only a few feet distance. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet from each other and beyond the reach of sight and voice, and yet acting together. “ Besides, it appears to us, that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability, because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer; but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand toward him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow servant does not depend exclusively upon the consideration, that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liability, when it does not arise from express or implied contract, or from a responsibility created by law to third persons and strangers, for the negligence of a servant. . . . The responsibility which one is under for the negligence of his servant, in the conduct of his business, toward third persons, is founded on another and distinct principle from that of implied contract, and stands on its own reasons of policy. The same reasons of policy, we think, limit this responsibility to the case of strangers, for whose security alone it is established. Like considerations of policy and general expediency forbid the extension of the principle, so far as to warrant a servant in maintaining an action against his employer for an indemnity which we think was not contemplated in the nature and terms of the employment, and which, if established, would not conduce to the general good.” NEW ENGLAND RAILROAD CO. v. CONROY. 331 Opinion of the Court. In Holden v. Fitchburg Railroad Co., 129 Mass. 268, which was a case in which damages were claimed by a person employed to act as a laborer in the removal of a mass of earth overhanging the defendant’s railroad, on the alleged ground of negligence on the part of a roadmaster who had charge of that portion of the railroad, the case of Farwell v. B. de W. Railroad, 4 Met. 49, was followed; and it was held, on principles established in that and subsequent cases, that it makes no difference that the servant whose negligence causes the injury is a submanager or foreman, of higher grade or greater authority than the plaintiff; and, in discussing the cases, Chief Justice Gray cited the case of Wilson v. Merry, L. R. 1 H. L. Sc. 326,332, 334, 335, 336, and some of the observations made by the justices who delivered judgments therein in the House of Lords. Thus Lord Chancellor Cairns said: “ The master is not and cannot be liable to his servant unless there be negligence on the part of the master in that in which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business.” “But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence, this is not the negligence of the master.” Lord Co-lonsay said : “ I think that there are duties incumbent on our masters with reference to the safety of laborers in mines and factories, on the fulfilment of which the laborers are entitled to rely, and for the failure in which the master may be responsible. A total neglect to provide any system of ventilation for the mine may be of that character. Culpable negligence in supervision, if the master takes the supervision on himself, or, where he devolves it on others, the heedless selection of unskilful or incompetent persons for the duty; or the failure to provide or supply the means of providing proper machinery or materials may furnish ground of liability.” 332 OCTOBER TERM, 1899. Opinion of the Court. And see likewise the case of Clifford v. Old Colony Railroad, 141 Mass. 564, in which it was held that a section hand in the employ of a railroad corporation cannot maintain an action against the corporation for personal injuries caused by a collision between a hand car on which he was at work and an engine of a train run by servants of the corporation if the accident was occasioned by the negligence of the section boss and the engineer of the train. In Sherman n. Rochester & Syracuse Railroad, 17 N. Y. 153, it was held by the New York Court of Appeals that a servant who sustains an injury from the negligence of a superior agent engaged in the same general business, can maintain no action against their common employer, although he was subject to the control of such superior agent, and that, accordingly, a brake-man upon a railroad whose duty it is not to apply the brakes except when directed by the engineer or conductor cannot maintain an action against their common employer for an injury resulting from the culpable speed at which the engineer and conductor ran the train. And this appears to be the settled doctrine in the State of New York. Besel v. N. Y. C. & H. R. Railroad, 70 N. Y. 171, 173; Re Forest v. Jewett, 88 N. Y. 264. The Supreme Court of Pennsylvania has held, in numerous cases, and it is settled law in that State, that a fellow servant, within the meaning of the rule, is any one serving the same master, and under his control, whether equal, inferior or superior to the injured person in his grade or standing, and the fact that the injured servant was under the control of the servant by whose negligence the injury was caused makes no difference. Weger n. Pennsylvania Railroad Co., 55 Penn. St. 460; Lehigh Valley Coal Co. v. Jones, 86 Penn. St. 432. In Columbus de Indianapolis Central Railway n. Arnold, 31 Indiana, 174, the Supreme Court of Indiana held, reversing some previous cases to the contrary, that it is the duty of a railroad company to use all reasonable care in the proper construction of its road, and in supplying it with the necessary equipment, and in the selection of competent subordinates to supervise, inspect, repair and regulate the machinery, and to regulate and control the operation of the road; and that if NEW ENGLAND RAILROAD CO. v. CONROY. 333 Opinion of the Court. these duties are performed with care by the company, and one of the persons so employed is guilty of negligence by which an injury occurs to another, it is not the negligence of the master, and the company is not responsible. Without following further the history of this subject in the courts of the several States, we may state that, generally, the doctrine there upheld is that of the cases herein previously cited, except in the courts of the States of Ohio, Kentucky and perhaps others, in which the rule seems to obtain that while the master is not liable to his servant for any injury committed by a servant of equal degree in the same sphere of employment, unless some negligence is fixed on the master personally, yet that he is liable for the gross negligence of a servant superior in rank to the person injured, and is also liable for the ordinary negligence of a servant not engaged in the same department of service. Leaving the decisions of the state courts, and coming to those of this court, we find the latter to be in substantial harmony with the current of authority in the state and English courts. From this statement the case of Chicago, Milwaukee St. Paul Railroad v. Ross, 112 IT. S. 377, must, perhaps, be excepted, and to it we shall revert after an examination of our other cases. Randall v. Baltimore & Ohio Railroad, 109 IT. S. 478, was the case of an action in the Circuit Court of the United States for the District of West Virginia against a railroad corporation by a brakeman in its employ for personal injuries received, while working a switch, by being struck by one of its locomotive engines; and it was unanimously held by this court, affirming the court below, that the plaintiff could not recover, although the injury was occasioned by the negligence of the engineman in running his engine too fast, or not giving due notice of its approach. In the course of the opinion, which was pronounced by Mr. Justice Gray, he said : “ The general rule of law is now firmly established that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. This court has not hitherto had 334 OCTOBER TERM, 1899. Opinion of the Court. occasion to decide who are fellow servants within the rule. . . . Nor is it necessary, for the purposes of this case, to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several States; because persons standing in such a relation to one another as did the plaintiff and the engineman of the other train are fellow servants, according to the very great preponderance of judicial authority in this country, as well as the uniform course of decision in the House of Lords, and in the English and Irish courts, as is clearly shown by the cases cited in the margin. They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object — the moving of the trains.” Northern Pacific Railroad v. Herbert, 116 U. S. 642, was a case wherein it appeared'that a brakeman suffered an injury by reason of the fact that the brakes which he was called upon to apply were broken and out of order, and it was held, per Mr. Justice Field, that it was the duty of the company to furnish sufficient and safe materials, machinery or other means by which service is to be performed, and to keep them in repair and order, and that as this duty had not been fulfilled the plaintiff was entitled to recover. There was another question in that case as to the import and effect of a statute of Dakota, in which Territory the accident took place, providing that “an employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employe,” and that “ an employer must, in all cases, indemnify his employ^ for losses caused by the former s want of ordinary care.” It was held, by a majority of the court, that these provisions NEW ENGLAND RAILROAD CO. v. CONROY. 335 Opinion of the Court. of the Dakota code expressed the general law that an employer is responsible for the injury to his employes caused by his own want of ordinary care; that his selection of defective machinery, which is to be moved by steam power, is of itself evidence of a want of ordinary care, and allowing it to remain out of repair, when its condition is brought to his notice, or by proper inspection might be known, is culpable negligence; that the cars, in that case, had been defective for years; that the brakes were all worn out, and their condition had been called to the attention of the yard master, who had control of them while in the yard, and might have been ascertained, upon proper inspection, by the officer or agent of the company charged with the duty of keeping them in repair, yet nothing was done to repair either brakes or cars; that, in such circumstances, the company had not exercised ordinary care to keep the cars and brakes in good condition; and that, therefore, under the provisions of the statute, the company was bound to indemnify the plaintiff. The minority of the court considered that the case was governed by the local statute, and that the statute, properly construed, relieved the employer, under the facts of the case, from liability to the injured employ^. They declined to express any opinion upon the question of liability apart from the statute. Quebec Steamship Co. v. Merchant, 133 U. S. 375, was an action brought in the Circuit Court of the United States for the Southern District of New York by one Merchant, who was employed as a stewardess of the steamship Bermuda, belonging to the defendant company. It appeared that the ship’s company consisted of thirty-two persons, divided into three classes of servants, called three departments — the deck department, the engineers’ department, and the steward’s department. The captain, the first and second officers, the purser, the carpenter and the sailors were in the deck department; the engineers, the firemen and the stokers were in the engineers’ department; the steward, the waiters, the cooks, the porter and the stewardess were in the steward’s department. At the close of the evidence the defendant’s counsel requested the court to charge the jury to find a verdict for the defendant on the ground that the injury sustained by the plaintiff was occasioned, if there was 336 OCTOBER TERM, 1899. Opinion of the Court. any negligence, by the negligence of a fellow servant. This the court refused to do. There was a verdict for the plaintiff, and the case was brought to this court. Here it was contended that, as the carpenter whose negligence was alleged as the cause of the accident, was in the deck department, and the stewardess in the steward’s department, those were different departments in such a sense that the carpenter was not a fellow servant with the stewardess. But Mr. Justice Blatchford, speaking for the entire court, said: “ The injuries to the plaintiff were caused solely by the negligence of one or the other of two fellow servants who were in a common employment with her, and there was no violation or omission of duty on the part of the employer contributing to such injuries. Neither of her fellow servants stood in such relation to her or to the work done by her, and in the course of which her injuries were sustained, as to make his negligence that of the employer. The case, therefore, falls within the well settled rule, as to which it is unnecessary to cite cases, which exempts an employer from liability for injuries to a servant by another servant, and does not fall within any exception to that rule which destroys the exemption of the employer when his own negligence contributes to the injury, or when the other servant occupies such a relation to the injured party or to his employment, in the course of which her injury was received, as to make the negligence of such servant the negligence of the employer.” The next notable case is that of Baltimore & Ohio Bailroad v. Baugh, 149 U. S. 368, in which it was held that an engineer and fireman of a locomotive, running alone and without any train attached, were fellow servants of the company, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former. In the course of the opinion Mr. Justice Brewer said: “It may safely be said that this court has never recognized the proposition that the mere control of one servant over another in doing a particular piece of work destroys the relation of fellow servants and puts an end to the master’s liability. On the contrary, all the cases proceed on the ground of some NEW ENGLAND RAILROAD CO. v. CONROY. 337 Opinion of the Court. breach of positive duty resting upon the master, or upon the idea of superintendence or control of a department. It has ever been affirmed that the employe assumes the ordinary risks incident to the service; and, as we have seen, it is as obvious that there is risk from the negligence of one in immediate control as from one simply a coworker. That the running of an engine by itself is not a separate branch of service seems perfectly clear. The fact is, all the locomotive engines of a railroad company are in the one department, the operating department; and those employed in running them, whether as engineers or firemen, are engaged in a common employment and are fellow servants.” We shall have occasion to revert to this case when we come to consider the decision in Chicago, Milwaukee dr St. Paul Railroad v. Ross. In Northern Pacific Railroad v. Hanibly, 154 U. S. 349, it was held that a common day laborer in the employ of a railroad company, who, while working for the company under the order and direction of a section boss or foreman, on a culvert on the line of the company’s road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company’s road, is a fellow servant with such engineer and such conductor, in such a sense as exempts the railroad company from liability for the injury so inflicted ; and Mr. Justice Brown, in delivering the opinion of the court, observed : “ To hold the principal liable whenever there are gradations of rank, between the person receiving and the person causing the injury, or whenever they are employed in different departments of the same general service, would result in frittering away the whole doctrine of fellow service. Cases arising between persons engaged together in the same identical service, as, for instance, between brakemen of the same train, or two seamen on the same ship, are comparatively rare. In a large majority of cases there is some distinction either in respect to grade of service, or in the nature of the employments. Courts, however, have been reluctant to recognize these distinctions unless the superiority of the person causing vol. clxxv—22 838 OCTOBER TERM, 1899. Opinion of the Court. the injury was such as to put him rather in the category of principal than of agent, as, for example, the superintendent of a factory or railway, and the employments were so far different that, although paid by the same master, the two servants were brought no further in contact with each other than as if they had been employed by different principals.” In Central Railroad Co. v. Keegan, 160 U. S. 259, Baltimore & Ohio Railroad Co. v. Baugh was approved and followed in respect to its statement as to what constitutes a vice-principal. In Northern Pacific Railroad Co. n. Peterson, 162 U. 8. 346, an action had been brought in the Circuit Court of the United States for the District of Minnesota by Peterson to recover damages against the railroad company, alleged to have been caused by the negligence of the foreman of a gang of laborers, engaged in putting in repair sections of the railroad. The foreman had power to hire and discharge the hands who composed the gang, and had exclusive charge of their direction and management in all matters connected with their employment. The plaintiff recovered a verdict, and the judgment of the Circuit Court thereon was affirmed by the Circuit Court of Appeals of the Eighth Circuit. The cause was brought to this court, and the judgments of the courts below were reversed. The opinion of this court was by Mr. Justice Peckham, in which he reviewed the authorities, and expressed the following conclusions: “ The general rule is, that those entering into the service of a common master become thereby engaged in a common service and are fellow servants, and, prima facie, the common master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow servant. There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasona- NEW ENGLAND RAILROAD CO. v. CONROY. 339 Opinion of the Court. bly safe and competent men to perform their respective duties, and it has been held in many States that the master owes the further duty of adopting and promulgating safe and proper rules for the conduct of his business, including the government of the machinery and the running of trains on a railroad track. If the master be neglectful in any of these matters it is a neglect of a duty which he personally owes to his employes, and if the employe suffer damage on account thereof, the master is liable. If, instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect of that other, which, in such case, is not the neglect of a fellow servant, no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform as such. . . . The rule is that, in order to form an exception to the general law of non-liability, the person whose neglect caused the injury must be one who was clothed with the control and management of a distinct department, and not a mere separate piece of work in one of the branches of service in a department. This distinction is a plain one, and not subject to any great embarrassment in determining the fact in any particular case. “When the business of the master or employer is of such great and diversified extent that it naturally and necessarily separates itself into departments of service, the individuals placed by the master in charge of these separate branches and departments of service, and given entire and absolute control therein, may properly be considered, with respect to employes under them, vice-principals and representatives of the master as fully and as completely as if the entire business of the master were placed by him under one superintendent. . . . This boss of a small gang of ten or fifteen men, engaged in making repairs upon the road wherever they might be necessary, over a distance of three sections, aiding and assisting the regular gang of workmen upon each section, as occasion demanded, was not such a superintendent of a separate department, nor was he in control of such a distinct branch of the work of the master, as would be necessary to 340 OCTOBER TERM, 1899. Opinion of the Court. render the master liable to a coemploye for his neglect. He was in fact, as well as in law, a fellow workman; he went with the gang to the place of work in the morning, stayed there with them during the day, superintended their work, giving directions in regard to it, and returned home with them in the evening, acting as a part of the crew of the hand car upon which they rode. The mere fact, if it be a fact, that he did not actually handle a shovel or a pick, is an unimportant matter. Where more than one man is engaged in doing any particular work, it becomes almost a necessity that one should be boss and the other subordinate, but both are nevertheless fellow workmen.” The last case we shall refer to is that of Oakes v. Mase, 165 U. S. 363, where it was declared to be the settled law of this court that the relation of fellow servants exists between an engineer, operating a locomotive on one train, and the conductor on another train on the same road; and Northern Pacific Railroad v. Poirier, 167 U. S. 48, where it was held that a brakeman on a regular train of a railroad and the conductor of a wild train, on the same road, are fellow servants, and the railroad company is not responsible for injuries happening to the former by reason of a collision of the two trains, caused by the negligence of the latter and by his disregard of the rules of the company. Without attempting to educe from these cases a rule applicable to all possible circumstances, we think that we are warranted»by them in holding in the present case that, in the absence of evidence of special and unusual powers having been conferred upon the conductor of the freight train, he, the engineer, and the brakemen, must be deemed to have been fellow servants within the meaning of the rule which exempts the railroad company, their common employer, from liability to one of them for injuries caused by the negligence of another. This conclusion is certainly sound unless we are constrained to hold otherwise by the decision in Chicago, Milwaukee & St. Paul Railroad v. Ross, already referred to. That was a case wherein an action was maintained, brought by a locomo- NEW ENGLAND RAILROAD CO. v. CONROY. 341 Opinion of the Court. tive engineer to recover damages received in a collision caused by the negligence of the conductor of the train; and it must be admitted that the reasoning employed by Mr. Justice Field, in his opinion expressing the views of a majority of the court, and the conclusion reached by him, cannot be reconciled with the other decisions of this court hereinbefore cited. We do not think that it would be proper to pass by the case without comment, nor yet to attempt to distinguish it by considerations so narrow as to leave the courts below in uncertainty as to the doctrine of this court on a subject so important and of such frequent recurrence. The case in hand exemplifies the perplexity caused by the Ross case. The trial court gave effect to it as establishing the proposition that the conductor of an ordinary freight train, with no other powers than those assumed to belong to such an employe by virtue of such a position, is a vice-principal, against whose negligence the company is bound to indemnify all the other employes on the train. Yet it is evident that the judges of the Circuit Court of Appeals did not find themselves able to either accept or reject such a proposition, as they have certified it to us as one on which they desire our instructions. Such a course plainly evinces doubts whether, in view of the decisions both before and since, the case of Chicago, Milwaukee c& /St. Paul Railroad v. Ross furnishes a safe and approved rule to guide the trial courts. While the opinion in the Ross case contains a lucid exposition of many of the established rules regulating the relations between masters and servants, and particularly as respects the duties of railroad companies to their various employes, we think it went too far in holding that a conductor of a freight tram is, ipso facto, a vice-principal of the company. An inspection of the opinion shows that that conclusion was based upon certain assumptions, not borne out by the evidence in the case, as to the powers and duties of conductors of freight trains. Thus it was said : “We know from the manner in which railroads are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and man- 342 OCTOBER TERM, 1899. Opinion of the Court. agement of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the terms is he a fellow servant with the fireman, the brakemen, the porters and the engineer; the latter are fellow servants in the running of the train under his direction; as to them and the train, he stands in the place of and represents the corporation.” We think these statements attribute duties and powers to conductors of freight trains much greater than ordinarily exist. Several of the instances of control assigned to the conductor really belong to the engineer, who, as railroads are now operated, is a much more important functionary in the actual movements of the train, when in motion, than the conductor. It is his hand that regulates the application of the brakes that control the speed of the train, and in doing so he acts upon his own knowledge and observation, and not upon orders of the conductor. Particularly has this become the case since the introduction of the air train-brake system. We can take notice of the act of March 2, 1893, c. 196, 27 Stat. 531, which enacted “ that it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power-driving wheel brake and appliances for operating the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train-brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand-brake for that purpose.” We do not refer to this statute as directly applicable to the case in hand, but as a legislative recognition of the dominant position of the engineer. Cases are cited in the opinion in the Hoss case in which it has been held by the Supreme Court of Ohio and by the Court of Appeals of Kentucky that railroad companies are responsible for negligence of conductors to other employes. NEW ENGLAND RAILROAD CO. v. CONROY. 343 Opinion of the Court. But those courts do not accept the ordinary rule exempting the master from liability to a servant for the negligent conduct of his fellows. At least, they do not apply such a rule to the extent that this and other courts have done. They hold that no service is common that does not admit a common participation, and no servants are fellow servants when one is placed in control over the other. In so far as the decision in the case of Ross is to be understood as laying it down, as a rule of law to govern in the trial of actions against railroad companies, that the conductor, merely from his position as such, is a vice-principal, whose negligence is that of the company, it must be deemed to have been overruled, in effect if not in terms, in the subsequent case of Baltimore & Ohio Railroad n. Baugh, before cited. There Mr. Justice Brewer, in commenting upon the proposition applied in the Ross case, that the conductor of a train has the control and management of a distinct department, said: “But the danger from the negligence of one specially in charge of the particular work is as obvious and as great as that of those who are simply coworkers with him in it. Each is equally with the other an ordinary risk of the employment. If he is paid for the one, he is paid for the other; if he assumes the one, he assumes the other. Therefore, so far as the matter of the master’s exemption from liability depends upon whether the negligence is one of the ordinary risks of the employment, and, thus, assumed by the employe, it includes all coworkers to the same end, whether in control or not. But if the fact that the risk is or is not obvious does not control, what test or rule is there which determines ? Rightfully this, there must be some personal wrong on the part of the master, some breach of positive duty on his part. If he discharges all that may be called positive duty, and is himself guilty of no neglect, it would seem as though he was absolved from all responsibility, and that the party who caused the injury should be himself alone responsible. It may be said that this is only passing rom one difficulty to another, as it leaves still to be settled what is positive duty and what is personal neglect; and yet if we analyze thes^matters a little, there will appear less diffi- 344 OCTOBER TERM, 1899. Opinion of the Court. culty in the question. Obviously, a breach of positive duty is personal neglect; and the question in any given case is, therefore, what is the positive duty of the master ? He certainly owes the duty of taking fair and reasonable precautions to surround his employe with fit and careful coworkers, and the employe has a right to rely on his discharge of this duty. If the master is careless in the matter of employing a servant, it is his personal neglect; and if without proper care in inquiring as to his competency he does employ an incompetent person, the fact that he has an incompetent, and therefore an improper employe is a matter of his personal wrong, and owing to his personal neglect. And if the negligence of this incompetent servant works injury to a co-servant, is it not obvious that the master’s omission of duty enters directly and properly into the question of responsibility ? If, on the other hand, the master has taken all reasonable precautions to inquire into the competency of one proposing to enter into his service, and as the result of such reasonable inquiry is satisfied that the employe is fit and competent, can it be said that the master has neglected anything, that he has omitted any personal duty ? And this notwithstanding that after the servant has been employed it shall be disclosed that he was incompetent and unfit? If he has done all that reasonable care requires to inquire into the competency of his servant, is any neglect imputable to him? No human inquiry, no possible precaution, is sufficient to absolutely determine in advance whether a party under certain exigencies will or will not do a negligent act. So it is not possible for the master, take whatsoever pains he may, to secure employes who will never be guilty of any negligence. Indeed, is there any man who does not sometimes do a negligent act ? Neither is it possible for the master, with any ordinary and reasonable care, always to secure competent and fit servants. He may be mistaken, notwithstanding the reasonable precautions he has taken. Therefore, that a servant proves to be unfit and incompetent, or that in any given exigency he is guilty of a negligent act resulting in injury to a fellow servant, does not of itself prove any omission of care on the part of the master in his employment; and NEW ENGLAND RAILROAD CO. v. CONROY. 345 Opinion of the Court. it is only when there is such omission of care that the master can be said to be guilty of personal wrong in placing or continuing such servant in his employ, or has done or omitted aught justifying the placing upon him responsibility for such employe’s negligence. “Again, a master employing a servant impliedly engages with him that the place in which he is to work and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools and the machinery, than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools and the machinery, owes a positive duty to his employe in respect thereto. That positive duty does not go to the extent of a guarantee of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employ^ by whom that safety is secured or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employ^, or the latter’s right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore it will be seen that the question turns rather on the character of the act than on the relations of the employes to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor. But it may be asked, is not the duty of seeing that competent and fit persons are in charge of any particular work as positive as that of providing 346 OCTOBER TERM, 1899. Opinion of the Court. safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken in providing such safe place and machinery, and so the former is as fully discharged, when reasonable precautions have been taken to place fit and competent persons in charge. Neither duty carries with it an absolute guaranty. Each is satisfied with reasonable effort and precaution.” Accordingly, the conclusion reached was that, although the party injured was a fireman, who was subject to the orders and control of the engineer, in the absence of any conductor, there was no liability on the company for negligence of the ad interim conductor. That this reasoning and conclusion were inconsistent with those in the Ross case is not only apparent on comparing them, but further appears in the dissenting opinion in The Baugh case of Mr. Justice Field, who was the author of the opinion in the case of Ross. He said : “ The opinion of the majority not only limits and narrows the doctrine of the Ross case, but, in effect, denies, even with the limitations placed by them upon it, the correctness of its general doctrine, and asserts that the risks which an employ^ of a company assumes from the service which he undertakes is from the negligence of one in immediate control, as well as from a coworker, and that there is no superintending agency for which a corporation is liable, unless it extends to an entire department of service. A conclusion is thus reached that the company is not responsible in the present case for injuries received by the fireman from the negligent acts of the conductor of the engine. . . . The principle in the Ross case covers this case, and requires, in my opinion, a judgment of affirmance.” So likewise Mr. Chief Justice Fuller dissented in The Baugh case for the express reason that, in his opinion, the case came within the rule laid down in Chicago, Milwaukee & St. Paul Railroad v. Ross. To conclude, and not to subject ourselves to our own previous criticism, of proceeding upon assumptions not founded on NEW ENGLAND RAILROAD CO. v. CONROY. 347 Dissenting Opinion: Harlan, J. the evidence in the case, we shall content ourselves by saying that, upon the facts stated and certified to us by the Judges of the Circuit Court of Appeals, we cannot, as a matter of law based upon those facts and upon such common knowledge as we, as a court, can be supposed to possses, hold a conductor of a freight train to be a vice-principal within any safe definition of that relation. Accordingly we answer the first guestion put to us in the affirmative, and the second guestion in the negative. Mr. Justice Harlan dissenting. I concurred in the opinion and judgment of this court in Chicago <& Milwaukee Railroad v. Ross, 112 U. S. 377, and do not now perceive any sound reason why the principles announced in that case should not be sustained. In my judgment the conductor of a railroad train is the representative of the company in respect of its management, all the other employes on the train are his subordinates in matters involved in such management, and for injury received by any one of those subordinates during the management of the train by reason of the negligence of the conductor the railroad company should be held responsible. As the conductor commands the movements of the train and has general control over the employes connected with its operation, the company represented by him ought to be held responsible for his negligence resulting in injury to other employes discharging their duties under his immediate orders. If in such case the conductor be not a vice-principal, it is difficult to say who among the officers or agents of a corporation sued by one of its employes for personal injuries ought to be regarded as belonging to that class. Having these views, I am compelled to withhold my assent from the opinion and judgment in this case. 348 OCTOBER TERM, 1899. Statement of the Case. TULLIS v. LAKE ERIE AND WESTERN RAIL- ROAD COMPANY. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOE THE SEVENTH CIRCUIT. No. 71. Argued and submitted October 26, 27, 1899.—Decided December 11, 1899. The following provisions in the first section of the act of the legislature of Indiana approved by the Governor of that State on the 4th day of March, 1893, viz.: “ That every railroad or other corporation, except municipal, operating in this State, shall be liable for damages for personal injury suffered by any employ^ while m its service, the employs so injured being in the exercise of due care and diligence, in the following cases: First. When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools and machinery connected with, or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition: Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employs at the time of the injury was bound to conform, and did conform: Third. Where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf: Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round house, locomotive engine or train upon a railway, or where such injury was caused by the negligence of any person, coemployS or fellow servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, coemployfi or fellow servant at the time acting in the place and performing the duty of the corporation in that behalf, and the person so injured obeying or conforming to the order of some superior at the time of such injury, having the authority to direct; that nothing herein shall be construed to abridge the liability of the corporation under existing laws,” as they are construed and applied by the Supreme Court of that State, are not invalid, and do not violate the Fourteenth Amendment to the Constitution of the United States. This case came to this court on the following certificate of the United States Circuit Court of Appeals for the Seventh Circuit: TULLIS v. LAKE ERIE & WESTERN RAILROAD. 349 Statement of the Case. “ In this case, duly argued and submitted to this court, there arises a question of law concerning which this court desires the instruction of the Supreme Court of the United States. The action was brought by the plaintiff in error to recover damages for an injury suffered while in the employment of the defendant in error, caused by a negligent act of a fellow servant, for which the defendant in error is alleged to be responsible by force of an act of the legislature of Indiana approved by the Governor of the State March 4, 1893. The first section of the act reads as follows: “ ‘ 1. That every railroad or other corporation, except municipal, operating in this State, shall be liable in damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: “‘First. When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools and machinery connected with or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition. “ ‘ Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform. “ ‘ Third. Where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf. “ ‘ Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round house, locomotive engine or train upon a railway, or where such injury was caused by the negligence of any person, coemploye, or fellow servant engaged in the same common service in any of the several departments of the 350 OCTOBER TERM, 1899. Opinion of the Court. service of any such corporation, the said person, coemploye or fellow servant, at the time acting in the place, and performing the duty of the corporation in that behalf, and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having the authority to direct; but nothing herein shall be construed to abridge the liability of the corporation under existing laws.’ “ For the entire act reference is made to Session Laws of 1893, page 294, Burns’ Annotated Indiana Statutes, Revision of 1894, paragraphs 7083 to 7087, inclusive. “The Lake Erie and Western Railroad Company is a corporation of the State of Illinois owning and operating a railroad extending from Peoria, Illinois, into and through the State of Indiana. It is contended that the statute referred to is invalid because inconsistent with.the Fourteenth Amendment of the Constitution of the United States. If it be invalid the declaration shows no cause of action, and the errors alleged to have been committed at the trial become immaterial. The opinion of this court is that material error was committed at the trial for which the judgment below should be reversed if the statute mentioned is valid, and that if the statute mentioned is invalid the judgment should be affirmed. The question whether that statute is valid or violates the Fourteenth Amendment of the Constitution of the United States the court hereby orders certified and submitted to the Supreme Court of the United States for its proper decision.” Mr. IF. H. H. Miller for Lake Erie & Western Railroad. Mr. J. B. Elam and Mr. J. B. Cockrum were on his brief. Mr. Addison C. Harris, for Tullis, submitted on his brief. Mr. Chief Justice Fuller delivered the opinion of the court. The contention is that the act referred to is in conflict with the Fourteenth Amendment because it denies the equal protection of the laws to the corporations to which it is applicable. TULLIS v. LAKE ERIE & WESTERN RAILROAD. 351 Opinion of the Court. In Pittsburgh &c. Railroad Company v. Montgomery, 152 Indiana, 1, the statute in question was held valid as to railroad companies, and it was also held that objection to its validity could not be made by such companies on the ground that it embraced all corporations except municipal, and that there were some corporations whose business would not bring them within the reason of the classification. In announcing the latter conclusion the court ruled in effect that the act was capable of severance; that its relation to railroad corporations was not essentially and inseparably connected in substance with its relation to other corporations; and that, therefore, whether it was constitutional or not as to other corporations, it might be sustained as to railroad corporations. In Leep v. Railway Company, 58 Arkansas, 407, and St. Louis, Iron Mountain <&c. Railway v. Paul, 64 Arkansas, 83, an act of Arkansas of March 25, 1889, was held unconstitutional by the Supreme Court of that State so far as affecting natural persons, and sustained in respect of corporations; and in St. Louis, Iron Mountain &c. Railway v. Paul, 173 U. S. 404, that view of the act was accepted by this court because that court had so decided. Considering this statute as applying to railroad corporations only, we think it cannot be regarded as in conflict with the Fourteenth Amendment. Missouri Pacific Railway v. Mackey, 127 U. S. 205; Minneapolis & St. Louis Railway v. Herrick, 127 U. S. 210; Chicago, Kansas &c. Railroad v. Pontius, 157 U. S. 209; Peirce v. Van Dusen, 47 U. S. App. 339; Orient Insurance Co. v. Daggs, 172 U. S. 557. In Missouri Railway v. Mackey, the validity of a statute of Kansas of 1874 providing that “every railroad company organized or doing business in this State shall be liable for all damages done to any employ^ of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employes to any person sustaining such damage,” was involved, and it was held that it did not deny to railroad companies the equal protection of the laws. Mr. Justice Field said: “ The hazardous character of the business of operating a railway would seem to call for 352 OCTOBER TERM, 1899. Opinion of the Court. special legislation with respect to railroad corporations, having for its object the protection of their employes as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employes, and no objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination. It meets a particular necessity, and all railroad corporations are, without distinction, made subject to the same liabilities. As said by the court below, it is simply a question of legislative discretion whether the same liability shall be applied to carriers by canal and stage coaches and to persons and corporations using steam in manufactories.” In Minneapolis &g. Railway v. Herrick, the same conclusion was reached in respect of a law of the State of Iowa, that “every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employes of the corporation, and in consequence of the wilful wrongs, wThether commission or omission, of such agents, engineers or other employes, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding.” In Chicago &c. Railroad v. Pontius, a bridge carpenter, employed by a railroad company, who was injured through the negligence of employes of the company while assisting in loading timber, taken from the false work used in constructing a bridge, on a car for transportation to another point on the company’s road, was held to .be an employ^ of the company within the meaning of the statute of Kansas, and the validity of that act was again affirmed. In Peirce n. Van Dusen, a similar statute of the State of Ohio applying to railroad companies was upheld by the Circuit Court of Appeals for the Sixth Circuit, Mr. Justice Harlan delivering the opinion of the court. In Orient Insurance Company v. Daggs, in which an act of the State of Missouri in respect of policies of insurance TULLIS v. LAKE ERIE & WESTERN RAILROAD. 353 Opinion of the Court. against loss or damage by fire was drawn in question, the objection that the statute discriminated between fire insurance companies and companies engaged in other kinds of insurance was overruled, and it was said that the power of the State to distinguish, select and classify objects of legislation necessarily had a wide range of discretion; that it was sufficient to satisfy the demands of the Constitution if the classification were practical and not palpably arbitrary, and that the classification of the Missouri statute was not objectionable in view of the differences between fire insurance and other insurance. Railroad Company n. Mackey and Railroad Company v. Beckwith were cited and approved. And see Magoun v. III. Trust and Savings Bank, 170 U. S. 283 ; Pacific Express Co. v. Seibert, 142 U. S. 339; Atchison, Topeka &c. Railroad v. Matthews, 174 U. S. 96. By reason of the particular phraseology of the act under consideration it is earnestly contended that the decisions sustaining the validity of the statutes of Kansas, Iowa and Ohio are not in point, and that this statute of Indiana classified railroad companies arbitrarily by name and not with regard to the nature of the business in which they were engaged, but the Supreme Court of the State in the case cited has held otherwise as to the proper interpretation of the act, and has treated it as practically the same as the statutes of the States referred to. Indeed the Iowa statute is quoted from, and the case of Beckwith, as well as that of Mackey, relied on as decisive in the premises. As remarked in Missouri, Kansas <&c. Railway v. McCann, 174 U. S. 580, 586, the contention calls on this court to disregard the interpretation given to a state statute by the court of last resort of the State, and, by an adverse construction, to decide that the state law is repugnant to the Constitution of the United States. “ But the elementary rule is that this court accepts the interpretation of a statute of a State affixed to it by the court of last resort thereof.” This being an action brought by Tullis to recover damages for an injury suffered while in the employment of the railroad company, caused by the negligent act of a fellow servos. clxxv—23 354 OCTOBER TERM, 1899. Syllabus. vant, for which the company was alleged to be responsible by force of the act, we answer the question propounded that The statute as construed and applied by the Supreme Court of Indiana is not invalid and does not violate the Fourteenth Amendment to the Constitution of the United States. Certificate accordingly. THE PEDRO. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOE THE SOUTHERN DISTRICT OF FLORIDA. No. 115. Argued November 2, 8,1899. —Decided December 11, 1899. On the 20th of April, 1898, a joint resolution of Congress was approved by the President declaring that the people of Cuba are, and of right ought to be, free and independent. On the same day the Minister of Spain at Washington demanded his passport, and the diplomatic relations of Spain with the United States were terminated. On the 22d of the same April a blockade of a part of the coast of Cuba was instituted. On the 23d of the same month, in a proclamation of the Queen Regent of Spain it was declared that a state of war was existing between Spain and the United States. On the 26th of the same month the President issued a proclamation, declaring that a state of war existed between the United States and Spain, the fourth and fifth articles of which proclamation were as follows: “4. Spanish merchant vessels in any ports or places within the United States shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; Provided, that nothing herein contained shall apply to the Spanish vessels having on board any officers in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government.” “5. Any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place and to discharge her cargo, and afterwards forthwith to depart without molestation; and any such vessel, if met at Sea by any United States ship, shall be permitted to continue her voy- THE PEDRO. 355 Statement of the Case. age to any port not blockaded.” The Pedro was built in England, sailed under the British flag till 1887, and then was transferred to a Spanish corporation, and sailed under the Spanish flag. Sailing from Antwerp she arrived at Havana with a cargo April 17, 1898. She remained there five days, discharged her cargo and left for Santiago April 22. At 6 o’clock on that evening, when about 15 miles east of the Morro, and 5 miles north of the Cuban coast, she was captured by the New York, of the blockading fleet, sent to Key West, and there libelled and condemned. Held, (1) That the language of the proclamation was plain, and not open to interpretation; (2) That the Pedro did not come within Article 4 of the proclamation ; nor within Article 5 ; nor within the reasons usually assigned for exemption from capture ; (3) That it must be assumed that she was advised of the strained relations between the United States and Spain; (4) That being owned by a Spanish corporation, having a Spanish registry, and sailing under a Spanish flag and a Spanish license, and being officered and manned by Spaniards, she must be deemed to be a Spanish ship, although she was insured against risks of war by British underwriters — that fact being immaterial. This was an appeal from a decree of the District Court of the United States for the Southern District of Florida condemning the steamer Pedro as lawful prize of war on a libel filed April 23, 1898. April 20, 1898, the President approved the following joint resolution: “ First. That the people of the Island of Cuba are, and of right ought to be, free and independent. “Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the Island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters. “Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect. “ Fourth, That the United States hereby disclaims any dis- 356 OCTOBER TERM, 1899. Statement of the Case. position or intention to exercise sovereignty, jurisdiction or control over said Island except for the pacification thereof, and ■asserts its determination, when that is accomplished, to leave the government and control of the Island to its people.” 30 Stat. 738. On the same day, the Minister of Spain to the United States requested and obtained his passports; the text of the resolution was cabled to the Minister of the United States at Madrid; and the Secretary of State by separate dispatch directed him to communicate the resolution to the Government of Spain with the formal demand of the United States therein made, and the notification that, in the absence of a response by April 23, the President would proceed without further notice to use the power and authority enjoined and conferred upon him. April 21, the Minister of the United States at Madrid acknowledged the receipt of the Secretary’s dispatch that morning, but saying that before he had communicated it he had been notified by the Minister of Foreign Affairs of Spain that diplomatic relations were broken off between the two countries, and that he had accordingly asked for his passports. The letter from the Minister of Foreign Affairs of Spain referred to was as follows: “ In compliance with a painful duty I have the honor to inform Your Excellency that the President having approved a resolution of both Chambers of the United States, which in denying the legitimate sovereignty of Spain and threatening an immediate armed intervention in Cuba, is equivalent to an evident declaration of war, the Government of His Majesty has ordered its Minister in Washington to withdraw without loss of time from the North American territory, with all the personnel of the Legation. By this act the diplomatic relations which previously existed between the two countries are broken off, all official communications between their respective representatives ceasing, and I hasten to communicate this to Your Excellency in order that on your part you may make such dispositions as seem suitable. I beg Your Excellency to acknowledge the receipt of this note at such time as you deem THE PEDRO. 357 Statement of the Case. proper, and I avail myself of this opportunity to reiterate to you the assurances of my distinguished consideration.” The Secretary of the Navy at once gave instructions to the commander in chief of the North Atlantic Squadron to “ immediately institute a blockade of the North coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west; also, if in your opinion your force warrants, the port of Cienfuegos, on the south side of the island. . . . It is believed that this blockade will cut off Havana almost entirely from receiving supplies from the outside. . . . The Department does not wish the defences of Havana to be bombarded or attacked by your squadron.” April 22, Admiral Sampson, in command, instituted the blockade and on that day the President issued the following proclamation: “Whereas, by a joint resolution passed by the Congress and approved April 20, 1898, and communicated to the Government of Spain, it was demanded that said Government at once relinquish its authority and government in the Island of Cuba, and withdraw its land and naval forces from Cuba and Cuban waters; and the President of the United States was directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States to such extent as might be necessary to carry said resolution into effect; and “ Whereas, in carrying into effect said resolution, the President of the United States deems it necessary to set on foot and maintain a blockade of the North coast of Cuba, including all ports on said coast between Cardenas and Bahia Honda and the port of Cienfuegos on the South coast of Cuba: “Now, therefore, I, William McKinley, President of the United States, in order to enforce, the said resolution, do hereby declare and proclaim that the United States of America have instituted, and will maintain a blockade of the North coast of Cuba, including ports on said coast between Cardenas and Bahia Honda and the port of Cienfuegos on the 358 OCTOBER TERM, 1899. Statement of the Case. South coast of Cuba, aforesaid, in pursuance of the laws of the United States and the law of nations applicable to such cases. An efficient force will be posted so as to prevent the entrance and exit of vessels from the ports aforesaid. Any neutral vessel approaching any of said ports, or attempting to leave the same, without notice or knowledge of the establishment of such blockade, will be duly warned by the Commander of the blockading forces, who will indorse on her register the fact, and the date, of such warning, where such indorsement was made; and if the same vessel shall again attempt to enter any blockaded port, she will be captured and sent to the nearest convenient port for such proceedings against her and her cargo as prize, as may be deemed advisable. “ Neutral vessels lying in any of said ports at the time of the establishment of such blockade will be allowed thirty days to issue therefrom.” 30 Stat. 1769. April 23 the Queen Regent of Spain issued a decree, in which, among other things, it was stated: “ Article I. The state of war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the protocol of the 12th January, 1877, and all other agreements, compacts and conventions that have been in force up to the present between the two countries. “ Art. II. A term of five days from the date of the publication of the present royal decree in the Madrid Gazette is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart.” April 25, in response to a message from the President, Congress passed the following act, which was thereupon duly and at once approved: “ First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninety-eight, including said day, between the United States of America and the Kingdom of Spain. “ Second. That the President of the United States be, and THE PEDRO. 359 Statement of the Case. he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this act into effect.” 30 Stat. 364. April 26 the President issued a further proclamation, as follows: “ Whereas, By an act of Congress, approved April 25, 1898, it is declared that war exists, and that war has existed since the 21st day of April, A.D. 1898, including said day, between the United States of America and the Kingdom of Spain; and “ Whereas, It being desirable that such war should be conducted upon principles in harmony with the nresent views of nations and sanctioned by their recent practiOt, it has already been announced that the policy of this Government will be not to resort to privateering, but to adhere to ;he rules of the declaration of Paris: “Now, therefore, I, William McKinley, President of the United States of America, by virtue of the power vested in me by the Constitution and the laws, do hereby declare and proclaim : “ 1. The neutral flag covers enemy’s goods, with the exception of contraband of war. “ 2. Neutral goods, not contraband of war, are not liable to confiscation under the enemy’s flag. “ 3. Blockades in order to be binding must be effective. “4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21,1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea, by any United States ship, shall be permitted to continue their voyage, if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; Provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for the voyage), or any other article 360 OCTOBER TERM, 1899. Statement of the Case. prohibited or contraband of war, or any dispatch of or to the Spanish Government. “ 5. Any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded. “ 6. The right of search is to be exercised with strict regard for the rights of neutrals, and the voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade.” 30 Stat. 1770. The steamship Pedro was built at Newcastle, England, in 1883, and, until 1887, sailed under British registry and the name of Lilburn Tower. In the latter year her name was changed to The Pedro, and she was transferred to La Com-pania La Flecha, a Spanish corporation of Bilboa, Spain, and registered at that port in its name, and on October 4, 1887, obtained a royal patent from the Crown of Spain, which was issued to her as the property of the company. Thereafter she sailed under the Spanish flag and was officered and manned by Spaniards, though she was engaged in the transportation of cargo for hire as a merchant vessel under the management of G. H. Fletcher and Company of Liverpool. Her voyages began in Europe where she took cargo for Cuban ports, from which ports on discharge she proceeded to ports of the United States, where she took cargo for a port of discharge in Europe, the round trip occupying about three months. Between March 20 and March 25, 1898, she took on board at Antwerp, Belgium, some 2000 tons of cargo for Havana, Santiago de Cuba, and Cienfuegos, Cuba, of which 1700 tons was rice and the rest, hardware, empty bottles, paper, cement and general cargo. On March 18,1898, she was chartered to the firm of Keyser and Company, being described in the charter party as “ now loading in Antwerp for Cuba,” to proceed to Pensacola, Flor- THE PEDRO. 361 Statement of the Case. ida, or Ship Island, Mississippi, “ with all convenient speed,” to load a cargo of lumber for Rotterdam or Antwerp. The charter party provided that “ should the vessel not be in all respects ready for cargo at her loading place on or before the 18th of May, 1898, charterers or their agents have the option of cancelling this charter. If required by charterers, lay days are not to commence at loading port before the 5th of May, 1898.” Among the ship’s papers was a bill of health issued by the consul of the United States at Antwerp, March 24, which described her as “ engaged in Atlantic trade, and plies between Antwerp, Cuba and the United States.” The bill of health concluded as follows: “I certify that the vessel has complied with the rules and regulations made under the act of February 15,1893, and that the vessel leaves this port bound for Pensacola, in the United States of America, via Havana, Santiago & Cienfuegos.” The steamer’s freight list on the voyage to Cuban ports was valued at about $7000, stated to be barely sufficient to cover the expenses of receiving, transporting and delivering that cargo, and the charter hire on the contemplated voyage from Pensacola or Ship Island to Rotterdam would have been about $25,000. The steamer arrived at Havana on April 17, and remained there for five days, discharging about sixteen hundred tons of her cargo, and taking on some twenty tons of general merchandise for Santiago. On April 22, at about half after three o clock in the afternoon, she left Havana for Santiago, and at six o’clock, when about fifteen miles east of the Morro, at the entrance of Havana harbor, and five miles north of the Cuban coast, was captured by the cruiser New York, one of the blockading fleet, and sent to Key W est in charge of a prize crew. There she was libelled on April 23. In due course, proofs in preparatories which embraced the ship’s papers and the depositions of her master and first officer, were taken. The master appeared in behalf of the owners and made claim to the vessel, and moved the court for leave to take further proofs, presenting with the motion his test affidavit. In the affidavit it was alleged that, although a majority of the stock of La Compania La Flecha was registered in 362 OCTOBER TERM, 1899. Counsel for Parties. the names of Spanish subjects and only a minority in the names of British subjects, (members of the firm of G. II. Fletcher and Company,) one of the latter had possession of all the certificates of stock, which under the charter of the company established the ownership thereof, whereby he was the “ sole beneficial owner of the said steamer Pedro.” And further that the steamer was transferred from the British to the Spanish registry solely for commercial reasons, “there being discriminations in favor of vessels carrying the Spanish flag in respect of commerce with the colonies of Spain, in consideration of dues paid by such steamers to the government of Spain,” but that it was the intention of the British stockholders to withdraw her from the Spanish registry and from under the Spanish flag, and restore her to the British registry and the flag of Great Britain whenever the trade might be disturbed. It was also alleged that the steamer was insured “ against all perils and adventures, including the risks of war, for her full value by underwriters of Lloyds, London, and by insurance companies organized and existing under and pursuant to the laws of Great Britain, and that if the said vessel should be condemned as prize by this court the loss will rest upon and be borne by the said English underwriters.” The motion was denied, the cause heard on the pleadings and the proofs taken in preparatorio, and a decree of condemnation entered. Subsequently the Secretary of the Navy elected to take the vessel for the use of the United States pursuant to section 4624 of the Revised Statutes. By order of court she was duly appraised and delivered to the Navy Department, and the amount of her appraised value deposited with the Assistant Treasurer of the United States at New York, subject to the order of the District Court. From the decree of condemnation an appeal was prosecuted to this court. Mr. Wilhelmus Mynderse for Bonet, claimant, appellant. Mr. James H. Hayden for captors. Mr. Joseph K-Gammon was on his brief. THE PEDRO. 363 Opinion of the Court. Mr. Assistant Attorney General Hoyt filed a brief for the United States. Me. Chief Justice Fuller delivered the opinion of the court. When, on the twenty-second day of April, this Spanish steamer sailed from Havana, the United States and Spain were at war. Congress had adopted a resolution, April 20, demanding “ that the Government of Spain at once relinquish its authority and government in the Island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters,” and directing and empowering the President “to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect.” Time was given by the Executive until April 23 for Spain to signify compliance with the demand, but the Spanish Government at once, on April 21, recognized the resolution as “ an evident declaration of war,” and diplomatic relations were broken off. Blockade had been proclaimed April 22, and put into effective operation at Havana, and, immediately thereupon, elsewhere, under the proclamation. And by the act of Congress of April 25, it ’was declared that war had existed since the twenty-first day of April. Being an enemy’s vessel, the Pedro was liable to capture as lawful prize unless exempted therefrom by the terms of the proclamation of April 26. If that document in its bearing on this case could be regarded as ambiguous, a liberal construction might be indulged in, and it is urged that such liberality should in any event be accorded in view of the traditional policy of this Government in respect of the exemption of private property at sea during war. In The Phoenix, 1 Spinks Eccl. & Adm. Rep. 306, 310; Spinks’ Prize Cases, 1, 6, Dr. Lushington said in reference to the relaxation of belligerent rights by official action : “ If the words of the document are capable of two constructions, then 364 OCTOBER TERM, 1899. Opinion of the Court. I am clearly of opinion that the one most favorable to the belligerent party, in whose favor the document is issued, ought to be adopted; but the court must bear in mind that its province is not/ws dare, butyls dicere ; and I must again refer to the principle which I have often enunciated in this court, verbis plane expresses omnino standum est.” As applicable here, the meaning of the language used appears to us plain, and the proclamation not open to interpretation, since none is needed; nor are we justified in expanding executive action by construction because of the diplomatic attitude of this Government in respect of the exemption of all property, not contraband, of citizens and subjects of nations at war with each other, an exemption which has not as yet been adopted into the law of nations. It may be that the hardships incident to the contrary view will finally be found so destitute of corresponding advantage as to lead to the general acceptance of the doctrine so long unsuccessfully advocated by our statesmen and publicists, in diminution of the evils of war, but we must apply the law as it is, and not the law as they have contended it should be. The Pedro did not come within the fourth article of the proclamation, for she was in Havana, a port of the enemy, on April 21, and not “ in any port or place within the United States.” She sailed from Havana for Santiago, another port of the enemy, on April 22, was captured that day, and reached * Key West on April 23 as a prize of war. The suggestion that she was thus brought within the exemption requires no remark. Nor did the fifth article of the proclamation exempt the Pedro. That article provided that “any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place and to discharge her cargo, and afterwards forthwith to depart without molestation.” The Pedro remained in the harbor of Havana from the 17th until the 22d of April. We think it must be assumed that she was advised of the strained relations between the United States and Spain, and the imminency of hostilities. At all events, THE PEDRO. 365 Opinion of the Court. she did not leave Havana until the day after that designated by Congress and the President as the day on which war actually began, and which was also so regarded by the Government of Spain. She had no cargo to be discharged at any port or place in the United States, but had cargo for Santiago and Cienfuegos, Cuban ports held by the Spanish forces, and she cleared, not for Pensacola, but for Santiago. She was not within the letter of the proclamation, nor within the reasons usually assigned for the exemption as pointed out in the opinion of the District Judge, 87 Fed. Rep. 927. She had not left a foreign port in ignorance of the perilous condition of affairs, and innocently taking a course which would subject her to our power by entering one of our ports. Neither was she bringing cargo to this country for the increase of our resources, or the convenience of our citizens. On the contrary, she was sailing from one port to another port of the enemy, and all the cargo she had on board was destined for the enemy’s ports. Not only this, but she took on cargo at Havana for Santiago, and was captured while thus actually trading from one enemy port to another enemy port, being herself an enemy vessel. In these circumstances the fact that the Pedro was under contract to ultimately proceed, after concluding her visits to the Spanish ports, to a port of the United States, to there load for Europe, did not bring her within the exemption of the proclamation. The doctrine as to continuity of voyage as laid down by this court in the cases cited by appellant has no application. In The Circassian, 2 Wall. 135, it was ruled that the intent to violate a blockade, found as a ‘fact, was not disproved by evidence of a purpose to call at a neutral port, not reached at time of capture, with ulterior destination to the blockaded port. In The Bermuda, 3 Wall. 514, the actual destination to a belligerent port, whether ulterior or direct, was held to determine the character of the transaction as a whole; that transhipment could not change the effect of the pursuit of a common object by a common plan ; and that if the cargo was contraband its condemnation was justified, whether the voyage was to ports blockaded or to ports not blockaded; and so 366 OCTOBER TERM, 1899. Opinion of the Court. as to the vessel in the former case. And in The Springbok, 5 Wall. 1, it was held that an intention to tranship cargo at a neutral port did not save it when destined for a blockaded port; that as to cargo, both in law and intent, the voyage from London to the blockaded port was one voyage, and that the liability attached from the time of sailing if captured during any* part of that voyage. The solution of the question under consideration is not particularly aided by these and like decisions relating to blockade running and the transportation of contraband. In The Joseph, 8 Cranch, 451, the American brig Joseph sailed from Boston with a cargo on freight April 6, 1812, on a voyage to Liverpool, and the north of Europe, and thence directly or indirectly to the United States. She discharged her cargo at Liverpool; then, under British license, she took a cargo from Hull to St. Petersburg, and there received news of the war between the United States and Great Britain. She afterwards sailed from St. Petersburg to London with a cargo consigned to merchants at that port, having delivered which, she sailed for the United States in ballast, and was captured not far from Boston Light, and sent into port for adjudication. Her trading with the enemy rendered her liable to condemnation as prize; but it was contended that the offensive voyage terminated at London, and that she was not taken in delicto. The court held, however, that whether her voyage were considered an entire one from the United States to England, thence to St. Petersburg, and thence to the United States, or as two distinct voyages, the homeward voyage being from St. Petersburg to the United States, with a deviation to London, she was captured during the same voyage in which the offence was committed, though after it was committed, and was still in delicto. The Argo, 1 Spinks, 375; Spinks’ Prize Cases, 52, so much relied on by counsel, was an entirely different case from that presented by this record. The Argo was a vessel belonging to a Russian owner, sailing under Russian colors, and bound on a voyage from Havana to Cork. Her charter party bore date February 7 at Havana, but it was therein stipulated that THE PEDRO. 367 Opinion of the Court. she should load at Havana or Matanzas, demurrage not to be paid for forty-two running days. She took on sufficient ballast at Havana to keep her safe, and left there in February for Matanzas, where her cargo was begun to be put on board February 28 and was completed, on March 30, and she cleared from that port April 2. March 29, 1854, the British Order in Council printed in the margin1 was issued. Dr. Lushing-ton, adhering to the views he had expressed in The Phoenix, supra, held that the order did not contemplate that the vessel should be laden at the date of sailing and that the voyage was commenced at Havana to end in Great Britain, notwithstanding she took cargo at Matanzas. It was argued that the Pedro was not liable to capture and condemnation because British subjects were the legal owners of some and the equitable owners of the rest of the stock of La Compania La Flecha, and because the vessel was insured against risks of war by British underwriters. But the Pedro was owned by a corporation incorporated under the laws of Spain; had a Spanish registry; was sailing under a Spanish 1 “ Her Majesty, being compelled to declare war against His Imperial Majesty the Emperor of all the Russias, and being desirous to lessen as much as possible the evils thereof is pleased by and with the advice of her Privy Council, to order, and it is hereby ordered, that Russian merchant vessels, in any ports or places within her Majesty’s dominions shall be allowed until the tenth day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places; and that such Russian merchant vessels, if met at sea by any of her Majesty’s ships, shall be permitted to continue their voyage, if on examination of their papers it shall appear that their cargoes were taken on before the expiration of the above term: Provided, that nothing herein contained shall extend to or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any despatch of or to the Russian Government. “ And it is hereby further ordered by her Majesty, by and with the advice of her Privy Council as aforesaid, that any Russian merchant vessel which, prior to the date of this order, shall have sailed from any foreign port bound for any port or place in her Majesty’s dominions, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation; and that any such vessel, if met at sea by any of her Majesty’s ships shall be permitted to continue hey voyage to any port not blockaded,” 368 OCTOBER TERM, 1899. Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. flag and a Spanish license; and was officered and manned by Spaniards. Nothing is better settled than that she must, under such circumstances, be deemed to be a Spanish ship and to be dealt with accordingly. Story on Prize Courts (Pratt’s Ed.) 60, 66, and cases cited. The Friendschaft, 4 Wheat. 105; The Ariadne, 2 Wheat. 143; The Cheshire, 3 Wall. 231; Hall Int. Law, § 169. These stockholders were in no position to deny that when they elected to take the benefit of Spanish navigation laws and the commercial profits to be derived through discriminations thereunder against ships of other nations, they also elected to rely on the protection furnished by the Spanish flag. Nor can the alleged intention to restore the Pedro to British registry, if war rendered the change desirable, be regarded. That had not been done when the Pedro was captured. In conclusion, we are of opinion that the court below did not err in refusing to allow further proofs to be taken. The Spanish ownership was made out, and the facts that the stock of the corporation belonged legally or equitably to British subjects or that the loss of the vessel would be eventually borne by British underwriters were immaterial. Nor was there any doubt as to the movements of the Pedro and the trading in which she was actually engaged. The conclusion reached by the District Court could not have been affected by the further proofs desired to be taken. Decree affirmed. Me. Justice White, with whom concurred Me. Justice Bee wee, Me. Justice Shieas and Me. Justice Peckham, dissenting. The Pedro was a British-built ship, formerly owned and registered in Great Britain. About nine years prior to the 22d day of April, 1898, on which day the ship was captured, she was transferred to a Spanish corporation, took a license from the Spanish Government, and thereafter sailed under the Spanish flag. Prom the time when she thus became THE PEDRO. 369 Dissenting Opinion : White, Brewer, Shiras, Peckham, JJ. a Spanish merchant vessel she followed a course of regular trade by sailing from some port or ports in Europe to some port or ports in the southern part of the United States, touching in so doing at several places in the Island of Cuba. Voyages of this kind were made for about nine years prior to the capture, the vessel usually consuming about three months in both the outward and return voyage, being thus able to make four trips each year between a European port and a port in the United States. On these voyages, as illustrated by the one on which she was engaged when captured, the business secured for the Cuban ports was accessory to the main object of the voyage, which was the procuring of a remunerative cargo in the United States. Prior to the journey to the United States, upon which she was captured, the Pedro had last been at the port of New Orleans in January, 1898, at which time she there paid the tonnage tax imposed by the act of Congress, the payment then made being the fourth for the year beginning March 2, 1897, showing that for the year prior to her capture she had been four times in a port of the United States and paid tonnage at such ports. The Pedro, being in the port of Antwerp in March, 1898, took cargo for Havana, Santiago and Cienfuegos, in the Island of Cuba. Whilst the vessel was thus at Antwerp taking cargo for the Cuban ports in question, she was, on the 18th of March, 1898, through brokers at Liverpool, chartered by W. S. Keyser & Co., a firm of merchants established in Mobile and Pensacola, to proceed to Pensacola or Ship Island in the United States “with all convenient speed” there to take a cargo of lumber to be carried on the return voyage to Rotterdam. The opening clause of the charter described the vessel as now loading in Antwerp for Cuba, and the contract contained the stipulations usual to such agreements. It was provided that the charterers should not be obliged to commence loading the ship at Pensacola .or Ship Island before the 5th of May, but that the loading should be completed in sixteen working days, and that if the vessel did not arrive at her point of destination in the United States on or before the 18th day of May, 1898, the charterers should have the VOL. CLXXV—24 370 OCTOBER TERM, 1899. Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. option of cancelling the contract. Although the vessel had a capacity of about five thousand tons measurement, the cargo which was taken at Antwerp for the Cuban ports was only about two thousand tons, less than half her capacity, and the entire freight on such cargo did not exceed seven thousand dollars, which was barely sufficient to meet the expense of receiving, transporting and delivering. On the other hand, the freight on the lumber to be taken at either the port of Pensacola or Ship Island, at the rates fixed in the charter party, would have amounted to about twenty-five thousand dollars. The ship sailed on her voyage on the 25th of March, 1898. Before doing so she took from the American consul at the port of Antwerp a bill of health as required by the laws of the United States. In this bill of health the vessel was described as one “ engaged in Atlantic trade, and plies between Antwerp, Cuba and the United States;” and the consul besides certified that the “vessel has complied with the rules and regulations made under the act of February the 15th, 1893, and that the vessel leaves this port bound for Pensacola in the United States of America via Havana, Santiago and Cienfuegos.” She arrived at Havana on the 17th of April, 1898, and there discharged about sixteen hundred tons of her cargo. On the 20th of April she received from the steamer Alaya, in the port of Havana, about twenty tons of general cargo destined for Santiago, which the latter vessel had brought from European ports and desired to tranship, the same never having been landed in Cuba. In the afternoon of April the 22d the steamer left Havana in continuance of her voyage. On that morning, in execution of an order received from the President, the American fleet left Key West for the Island of Cuba to establish and enforce a blockade of certain ports in the Island of Cuba which had been proclaimed by the President. The Pedro, some distance outside of the harbor of Havana, met the American fleet and was captured. There is no just foundation, however, for the contention that in leaving the port of Havana the vessel was violating the blockade, for at the time of her sailing the blockade had THE PEDRO. 371 Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. not been established. Indeed, when the capture took place the fleet was on its way to Havana for the very purpose of initiating the blockade ordered by the proclamation of the President. Whilst it is true that subsequently to the 22d of April Congress passed a resolution declaring that war should be considered as having been flagrant as of the date of the 21st of April, that it was not conceived or known when the vessel sailed from Havana on the 22d that a state of war existed is also demonstrated by the proof, which shows that just prior to the sailing of the Pedro from the harbor of Havana an American ship was allowed to depart from that port, and that shortly after the Pedro left an American steamer, which was likewise in the port of Havana, was also permitted to leave. Under this state of fact it seems to me that the Pedro was within the exact requirements of the fifth article of the proclamation of the President of the United States, and hence was not subject to capture and condemnation. The article in question is as follows: “ 5. Any Spanish merchant vessel which prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded.” The theory from which it is deduced that the Pedro was not a Spanish merchant vessel “ which prior to April 21, 1898,” had “ sailed from any foreign port bound for any port or place in the United States,” is not by me understood. She assuredly sailed from Antwerp prior to the 21st of April, 1898; she certainly was bound for a port in the United States, since she was under a charter to American citizens, by the terms of which she was obliged “ to proceed with all convenient speed ” so as to arrive at Pensacola or Ship Island by May 5, 1898, where she was to take on an American cargo to be carried to the port of Rotterdam. The vessel beyond question took a bill of health from the American consul at Antwerp, describing her as one engaged in Atlantic trade, and plying between 372 OCTOBER TERM, 1899. Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. Europe and the United States, and the American consul certified that she was leaving the port of Antwerp bound for Pensacola in the United States via Havana, Santiago and Cienfuegos. Under these conditions she came, in my conception, not only within the letter of the fifth article of the proclamation, but also within its plain intent. The object of the proclamation was to relieve Spanish merchant vessels coming in the regular course of a commercial voyage to our ports from, without warning and without opportunity of returning to a port of safety, being captured and condemned as prize of war in consequence of the breaking out of hostilities subsequent to the inception of the voyage which the vessel was engaged in prosecuting. In this respect the proclamation was but a practical execution of the enlightened policy by which civilized countries, on the breaking out of hostilities, have relieved merchant vessels, coming to one or the other of the belligerent countries, from being subject to capture when, before the happening of war, they had undertaken a lawful voyage in the prosecution of purely commercial duties and relations. The scope of the proclamation is shown by a consideration of the fourth and the fifth clauses together, the one providing for the right of an enemy’s vessel found in a port of the United States at a time covered by the clause, to load cargo and depart without molestation, even although bound to a port of the enemy, and the provision of the fifth article which protects from seizure and condemnation the merchant vessels of the enemy which had sailed bound for any port of the United States prior to the period mentioned in the proclamation. But, it is said, when the Pedro left Havana on the afternoon of the 22d she was not bound for Ship Island or Pensacola in the United States, but was bound for Santiago, therefore she was on a voyage between two ports of the enemy, and was not within the fifth article of the proclamation. This, however, treats the voyage from Havana to Santiago as a new and wholly independent one from that which commenced at Antwerp. It disregards the fact that the vessel had sailed from Antwerp for Pensacola or Ship Island via Havana and the other ports named; it overlooks that the ship was under THE PEDRO. 373 Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. express charter to American citizens, when she left Antwerp, to proceed to Pensacola or Ship Island, and it further ignores the certification by the consul already referred to. To treat the voyage from Havana to Santiago as a new and independent one, moreover, fails to give weight to the proof showing that the touching at the Spanish ports in the Island of Cuba was merely incidental to the main voyage from Antwerp to the United States. It also does not apply the cumulative proof arising from the long and regular course of business in which the ship had been engaged for nine years prior to her capture in making regular trips from ports in Europe to ports in the United States via designated ports in the Island of Cuba. The decisions of this court, also, I think, refute the contention that the ultimate termination of an outward voyage may be disregarded, in order to create a new voyage because of the touching of a vessel at an intermediate port. The rule, consecrated by the previous decisions of this court, according to my understanding, is that the real intention of a vessel as to her outward bound port is the determining factor in concluding whether in consequence of her voyage she is or is not subject to capture as lawful prize. In The Joseph, 8 Cranch, 451, 454, 455, the vessel being a merchant vessel of the United States, with full knowledge of the war (1812) between the United States and England, carried a cargo from St. Petersburg to London. After discharging the cargo at the latter point she started in ballast for New York, her home port, and was captured and proceeded against for the offence of trading with the enemy. The defence was that the voyage had terminated on the arrival of the vessel in London, and that from London to the United States she was on a new voyage, and therefore not subject to capture and condemnation for an offence committed on a previous voyage. The court, through Mr. Justice Washington, said : “It is not denied that if she be taken during the same voyage in which the offence was committed, though after it was committed, she is considered as being still’ in delicto, and subject to confiscation; but it is contended that her voyage ended at London, and that she was on her return embarked 374 OCTOBER TERM, 1899. Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. on a new voyage. This position is directly contrary to the facts in the case. The voyage was an entire one from the United States to England; thence to the north of Europe; and thence, directly or indirectly, to the United States. Even admit that the outward and the homeward voyages could be separated so as to render them two distinct voyages, which is not conceded, still it cannot be denied that the termini of the homeward voyage were St. Petersburg and the United States . . . It was, in short, a voyage from St. Petersburg to the United States by way of London.” In The Circassian, 2 Wall. 135, a vessel sailing from one neutral port directly to another port of the same character was condemned, because it was found that the real and ultimate destination of the ship was a blockaded port in the United States. In The Bermuda, 3 Wall. 514, a vessel with cargo from one neutral port to another neutral port was condemned, as it was held that the real object of the voyage was to transport contraband of war by the vessel from one neutral port to the other with the object and purpose of continuing the transportation from the neutral port, to which the vessel was consigned, into the United States through the lines of a lawfully established blockade, the court deciding that the real purpose and intent as to the ultimate destination of the ship and its contraband cargo should control in determining the legality of the capture. In speaking on the subject, through Mr. Chief Justice Chase, the court said (p. 553): “It makes no difference whether the destination to the rebel port was ulterior or direct; nor could the question of destination be affected by transhipment at Nassau, if transhipment was intended, for that could not break the continuity of transportation of the cargo. The interposition of a neutral port between neutral departure and belligerent destination has always been a favorite resort of contraband carriers and blockade runners. But it never avails them when the ultimate destination is ascertained. A transportation from one point to another remains continuous, so long as intent remains unchanged, no matter what stoppage or transhipment intervene.” THE PEDRO. 375 Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. Applications of this doctrine are contained in the following cases: The Hart, 3 Wall. 559; The Springbok, 5 Wall. 1 ; The Peterhof, 5 Wall. 28. I do not understand that in the opinion of the court now announced the cases just cited have been overruled. They stand, therefore, and must be reconciled with the decision made in this case. This being so,♦the doctrine, from my point of view, may now be thus summed up. Where there is a question as to the condemnation of a vessel as lawful prize, the fact that, between her point of departure and her point of ultimate destination, she has touched or unladen her cargo or a portion thereof at an intermediary port, will not be considered as breaking the continuity of the voyage or as destroying the ulterior destination, and therefore if that destination be unlawful the voyage will be continuous from the point of departure to such ulterior destination, and the vessel will consequently be condemned. These rules are subject to the following exceptions: Where it becomes necessary to disregard the foregoing principles as to ulterior destination they will be given no weight, and the voyage will be treated as having terminated at an intermediary point, and consequently the vessel will be condemned because the voyage was not continuous. The result being, in any event, to subject the vessel to condemnation. It is, however, urged, conceding that the ultimate destination controls, and therefore that the stoppage at the intermediary port was of no consequence, as under the charter party the Pedro was bound to proceed to Pensacola, there to take on a cargo, to be delivered at Rotterdam, even under the doctrine of continuous voyage, her voyage must be treated as continuous from Antwerp via Havana, etc., to Pensacola, thence to Rotterdam; that is to say, the continuous voyage, as manifested by the charter party, was from Antwerp to Rotterdam via Pensacola, hence the ship was never bound for the United States. But this obliterates the manifest distinction between the outward and return voyage, which is apparent in the text of the fifth article of the proclamation. Even conceding that from some points of view the round voyage, that is, both the outward and return trip, should be 376 OCTOBER TERM, 1899. Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. considered as being continuous, such concession cannot in reason be the test for determining whether under the proclamation the vessel was bound for the United States. If it be held that both the inward and the outward voyage are to be taken under the proclamation as the criterion for determining whether a vessel was bound for the United States, it would follow that the proclamation had no relation whatever to any foreign ship, other than such a ship bound to a port of the United States without the intention of departing, that is, with the intention of remaining in the port of the United States. The proclamation, however, provides that the vessels bound for the United States to which it refers “ shall be permitted to enter such port or place, and to discharge her cargo, and afterward forthwith to depart without molestation ; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded.” This plainly distinguishes between the voyage on which the vessel is bound for the port of the United States and the voyage to be undertaken by the vessel from the port of the United States to which she is bound back to her homeward or some other neutral port. To construe the proclamation so as to cause it to embrace only vessels bound for the United States without any purpose of thereafter departing, would exclude from its operation the entire class of vessels it was its purpose to protect from condemnation. The error of such a consideration becomes to my mind plain, especially when it is borne in mind that it is conceded on all sides that the proclamation should receive a liberal construction in favor of the public purpose which it embodies, and against the liability of innocent and unwarned private property to capture and condemnation. It was strenuously argued at bar, and, as I understand the opinion of the court, it is now held, that the Pedro was not embraced within the fifth article of the proclamation because she did not have cargo for the United States. The object of the fifth clause of the proclamation, it was said, was to allow vessels with cargo bound for the United States to be free from capture, because it was the public policy of the United States, on the outbreak of war, to encourage the bringing in THE PEDRO. 377 Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. of cargo. The text of the proclamation does not, however, support this contention. It declares that all vessels which “have sailed from any foreign port bound for any port or place in the United States shall be permitted to enter such port or place . . .” It does not say all vessels which have sailed with cargo, but that all vessels shall be so permitted. True it is that the proclamation also authorizes the vessel thus permitted to enter to discharge her cargo. But the mere adding to the permission to enter, the right to discharge cargo, cannot be taken as denying permission to enter, if there be no cargo to discharge. It cannot in any event be said that the proclamation in plain terms confers the privilege of safe entry only on vessels having cargo; and if it does not, then construction is required, and the rule is that a liberal construction must be applied in order to protect the innocent private vessel from capture and condemnation. This supposed theory of the desire to encourage the bringing in of cargo, upon which it is assumed that the fifth article of the proclamation rests, entirely discards or at least ignores the enlightened moral sense which the proclamation embodies, that is, the duty not to capture without warning merchant vessels bound to our shores previous to the outbreak of war, and substitutes for it what to me seems the sordid motive of a supposed gain to result from incoming cargo. In other words, in its last analysis, the contention that the proclamation contemplates only exempting a vessel from seizure which has cargo for the United States, really asserts that fair dealing and justice are embodied in the proclamation only so far as it was deemed that profit might be derived from being just, and no further. Such an interpretation of the proclamation, however, is refuted by its very terms, since its preamble declares that its object was to mitigate the wrongs of war in accordance with the practice pursued by enlightened and civilized nations. Aside from these considerations, the supposed advantage to be derived from allowing cargo to come in, when considered intrinsically, is without force. Under this theory, two vessels would depart on the same day from a foreign port; one bound to a port in the United States, with 378 OCTOBER TERM, 1899. Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. cargo, under a charter to foreign citizens to convey their goods into this country; the second ship proceeding in ballast under charter to American citizens to proceed to the United States and there take cargo. The argument is that the vessel chartered to the foreigner and containing his goods in the execution of his contract would be exempt from capture, whilst the vessel sailing in order to carry out the contract made with and in favor of an American citizen would be subject to capture. But this contention as to cargo is not only in conflict with the text of the fifth article, but is also at war with another provision of the proclamation — that is, the fourth article. By that article a Spanish vessel found in a port of the United States, as therein stated, is not only allowed to depart,.but is also accorded the privilege of taking on cargo and carrying it either to a neutral port or to a port of the enemy, if not blockaded, up to a stated date without molestation. But the language conferring the privilege of loading cargo contained in the fourth article, whilst really only permissive, must be construed as imperative, if the permissive privilege to discharge cargo in the fifth article be held an imperative one, for no distinction can be drawn between the two. The argument then comes to this, that the public policy of the proclamation deemed the coming in of cargo so important that it provided for the capture of all vessels sailing for ports of the United States prior to the commencement of war, if they did not have cargo, and that the same public policy considered the taking away of cargo from the United States so important that the privilege given in the fourth article to Spanish merchant vessels in our ports to depart could be availed of, provided only they took cargo away from the United States. An interpretation which gives rise to so unreasonable a contradiction seems to me to demonstrate its own unsoundness. But all the considerations which are relied on as justifying the condemnation in this case seem to me to be fully answered by authority. Both the fourth and fifth articles of the proclamation of the President were almost word for word a reproduction of the British Order in Council of March 29, 1854, THE PEDRO. 379 Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. issued at the outbreak of the Crimean war. In order that the identity of the two may be at once apparent they are both reproduced, in juxtaposition, in the margin.1 Under the Order in Council just alluded to, the Argo, a Russian vessel, and therefore a vessel of the enemy, sailed from Havana for Matanzas, Cuba, there to take on cargo for 1 President's Proclamation of April 26,1898 (30 U. S. Statutes at Large, 1770). 4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage, if, on examination of their papers, it shall appear-that their cargoes were taken on board before the expiration of the above term; Provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government. 5. Any Spanish merchant vessel which prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation ; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded. Order in Council, March 29, 1854 (^Spinks Prize Cases, Appendix Ui). Russian merchant vessels, in any ports or places within her Majesty’s dominions, shall be allowed until the tenth day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places; and such Russian merchant vessels, if met at sea by any of her Majesty’s ships, shall be permitted to continue their voyage, if on examination of their papers it shall appear that their cargoes were taken on board before the expiration of the above term; Provided, that nothing herein contained shall extend to or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any dispatch of or to the Russian Government. Any Russian merchant vessel which, prior to the date of this order, shall have sailed from any foreign port bound for any port or place in her Majesty’s dominions, shall be permitted to enter such port or place and to discharge her cargo, and afterward forthwith to depart without molestation; and any such vessel, if met at sea by any of her Majesty’s ships, shall be permitted to continue her voyage to any port not blockaded. 380 OCTOBER TERM, 1899, Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. Great Britain. The departure of the vessel from Havana in ballast was prior to the date fixed by the Order in Council. After arriving at Matanzas she there took on cargo, and sailed from that port for Great Britain, subsequent to the date fixed in the Order in Council. She was captured, and the question of her condemnation was considered and decided by Dr. Lush-ington. It was held that the vessel was protected by the Order in Council, and she was released. Necessarily, under the facts stated, the ultimate end of the outward voyage to Great Britain, and not the intermediary port at which the Argo stopped, controlled ; otherwise she would have been subject to condemnation. This follows, as the order in terms only protected Russian merchant vessels which had sailed prior to the date of the order. As the sailing for Great Britain from Matanzas was subsequent to the order, it necessarily results that the date of sailing relied upon as protecting was the date of the sailing from Havana, and not the subsequent departure from the intermediate port. So,#also, the case necessarily decided that the presence of cargo was not essential to entitle the vessel to protection under the Order in Council, since the vessel sailed in ballast from Havana, and only departed from Matanzas, where the cargo was taken on, after the date of the order, and therefore at a time and under conditions which would not have protected her unless the antecedent conditions existing at the time of the sailing had been considered as determinative. The language of Dr. Lushington, in passing upon the case, is to my mind so persuasive of the issues which arise upon this record, that I quote from it. He said (Spinks’ Prize Cases, p. 53): “ This vessel did sail from the Havannah prior to the date of the Order; she sailed from Matanzas subsequently to the date of the Order. When she left the Havannah she was in ballast bound for Cork, according to the charter party. “ It has been contended that this Order in Council contemplated that the Russian vessel should have been laden at the date of the Order; but I find no words in the Order that would justify my putting so strict a construction upon it; THE PEDRO. 381 Dissenting Opinion: White, Brewer, Shiras, Peckham, JJ. neither do I think that there are any words which impose the necessity of not touching at or taking a cargo at some other port than that where the voyage commenced. For instance, I apprehend that a vessel might have taken in a part of her cargo from one foreign port, having left that port prior to the 29th of March, and taken in another part of the cargo at another foreign port subsequently. “ The real meaning of the Order in Council, according to my view of it, is, that the vessel shall have sailed prior to the 29th of March, on a voyage to end in Great Britain, and I am clearly of opinion that this was one continuous voyage, the commencement of which was at the Havannah, and that the sailing from Havannah prior to March the 29th is a substantial compliance with the terms of the Order.” Some stress was laid in argument, and seems to be given weight in the opinion of the court, to the language of Dr. Lushington referring to the taking on of the cargo. But, clearly, from the text of his opinion, this language was used in relation to the argument presented to him, which was that although a vessel sailing in ballast, without cargo, prior to the date of the Order in Council, was admittedly within its purview, the Argo was not covered by it, because subsequent to the proclamation she took on her cargo at an intermediate port. In meeting this argument the question of cargo was referred to, and the whole purport of the Order was summed up in language which I again quote. It was as follows: “The real meaning of the Order of Council, according to my view of it, is, that the vessel shall have sailed prior to the 29th of March, on a voyage to end in Great Britain, and I am clearly of opinion that this was one continuous voyage, the commencement of which was at the Havannah, and that the sailing from Havannah prior to March the 29th is a substantial compliance with the terms of the Order.” The sailing from Havana, thus decided to have been sufficient, I again remark, was in ballast and without cargo. This construction of the Order in Council, I have said, should be persuasive, indeed, if it should not be held to have been adopted and ratified by the reproduction in the procla- 382 OCTOBER TERM, 1899. Counsel for Parties. mation of the President of the very language of the Order in Council, so many years after that order had been thus construed by the British Admiralty tribunal. Thinking that the condemnation of this ship under the circumstances disclosed by the record will subject innocent private property to condemnation without just cause, will deprive it of the protection afforded by the proclamation of the President, which, according to its terms, but carried out those commendable principles of honesty and humanity, enforced by all civilized nations on the outbreak of war, I am constrained to dissent. THE GUIDO. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA. No. 122. Argued November 3, 1899.— Decided December 11, 1899. This was an appeal from a decree condemning the Guido as prize of war. On the facts, concisely stated in the opinion of the court, it is held following The Pedro, ante 355, that the case was properly disposed of below. The statement of the case will be found in the opinion of the court. Wilhelmus Mynderse for Julian de Ormaechea, claimant and appellant. Mr. Jannes II. Hayden for the captors. Mr. Joseph K. McCammon was with him on the brief. Mr. Assistant Attorney General Hoyt filed a brief for the United States. Mr. George A. King and Mr. William B. King filed a brief for certain captors. THE GUIDO. 383 Opinion of the Court. Mr. Chief Justice Fuller delivered the opinion of the court. This is an appeal from a decree of the District Court of the United States for the Southern District of Florida condemning the steamer Guido as prize of war. The Guido belonged to La Compania La Flecha, a Spanish corporation of Bilboa, Spain, and sailed under Spanish registry and the Spanish flag, having a royal patent from the Crown of Spain, and being officered and manned by Spanish subjects. Her voyage began at Liverpool, whence she proceeded to Santander, Corunna and La Puebla, Spain. At Liverpool and at each of the Spanish ports she took on cargo consisting principally of food supplies, all shipped to Havana and Cuban ports. It had been her custom to carry cargo from Spanish and other European ports to Cuba, and then proceed to some port of the United States for a return cargo of lumber, and it was her intention on this occasion to do this, but she had no charter or specific engagement, so far as appeared, for the continuation of her voyage after discharging in Cuba. It was certified in her bill of health issued at Liverpool “ that the vessel has complied with the rules and regulations made under the act of February 15, 1893, and that the vessel leaves this port bound for a port (unknown) in the United States of America, via Spain & Cuba ports (unknown). ” The steamer cleared from La Puebla for Havana April 10, and was captured April 27 about seventy miles to the eastward of Havana, and sent to Key West in charge of a prize crew. She was there libelled and proofs in prepar atorio were taken. The master appeared on behalf of the owner and asserted claim to the vessel, and moved for leave to take further proofs in respect of matters set forth in his test affidavit therewith filed, which motion was denied. The averments of the affidavit corresponded with those in the case of the Pedro. We are of the opinion that the case was properly disposed of, and the decree of the District Court is Affirmed. Mr. Justice Shiras, Mr. Justice White and Mr. Justice Peckham dissented. 384 OCTOBER TERM, 1899. Syllabus. THE BUENA VENTURA. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA. No. 106. Argued November 1, 2,1899. — Decided December 11,1899. In the fourth clause of the President’s proclamation of April 26,1898, issued after the declaration of war against Spain by Congress, April 25, 1898, it was said: “ 4. Spanish merchant vessels in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places, and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government.” The Buena Ventura, a Spanish vessel, being at Cuba in March, 1898, was chartered to proceed with all convenient speed to Ship Island, Mississippi, and there to take on board a cargo of lumber for Rotterdam. Under this charter she arrived at Ship Island in the latter part o,f March, 1898, and took on a cargo of lumber for Rotterdam. She cleared at the custom house on the 14th of April accordingly, but was detained by low water until April 19, when, between 8 and 9 a.m. she proceeded on her voyage. While so proceeding she was captured by a man of war of the United States about ten miles off the Florida coast. Up to the moment of capture all her officers were ignorant of the existence of a state of war, and the vessel, at the time of her capture, was following the ordinary course of her voyage. After hearing in the District Court of the United States the Buena Ventura was condemned and sold under a decree of court, and the proceeds were deposited to abide the event of an appeal from that decree. Held; (1) That an innocent vessel like the Buena Ventura, which had loaded within a port of the United States, and had sailed therefrom before the commencement of the war, was entitled, under the proclamation, to continue its voyage, that being clearly within the intention of the President, under the liberal construction which, this court is bound to give to that document; (2) That the reversal of the judgment below, condemning the Buena Ventura, should be without costs or damages in her favor; (3) That the moneys arising from the sale of the vessel must be paid to the claimant, deducting only the expenses properly incident to her custody and preservation up to the time of sale. THE BUENA VENTURA. 385 Statement of the Case. During the late war between the United States and Spain, and on May 27, 1898, the District Court of the United States for the Southern District of Florida condemned the steamship Buena Ventura as lawful prize of war, on the ground “that the said steamship Buena Ventura was enemy’s property, and was upon the high seas and not in any port or place of the United States upon the outbreak of the war, and was liable to condemnation and seizure.” It was thereupon ordered that the vessel “ be condemned and forfeited to the United States as lawful prize of war; but it appearing that the cargo of said steamer was the property of neutrals and not contraband and subject to condemnation and forfeiture, it is ordered that said cargo be released and restored to the claimant or the true and lawful owners thereof.” The vessel was captured on April 22, 1898, eight or nine miles from Sand Key light, on the Florida coast, by the United States ship of war Nashville, under the command of a line officer of the United States Navy, was brought into the port of Key West for adjudication, and was condemned upon the answers, given by the master and mate of the steamship, to standing interrogatories in preparatorio^ and upon the documents seized on board the ship by the captors. This evidence showed, that the steamship was a Spanish vessel engaged exclusively in the carrying of cargoes, and that at the time of her capture she was making a voyage under a charter party which had been concluded in Liverpool on March 23, 1898, between the agents of the owners and the agents of the charterers. By this charter party the steamship was described as “now ready to leave Cuba;” and it was agreed upon therein that the vessel should with all convenient speed proceed to Ship Island, Mississippi, and there take on a cargo of lumber, and proceed therewith, as customary, to Rotterdam. The vessel was to be at her loading place and ready for cargo on or before the 10th of April, and if she were not, the charterers had the option of cancelling the charter. Pursuant to this charter party the ship left Cuba and arrived at Ship Island about the 31st of March, and between that time and the 19th of April she had taken on her cargo, and on the VOL. CLXXV—25 386 OCTOBER TERM, 1899. Statement of the Case. latter day had sailed from Ship Island bound for Norfolk, Virginia, to take in bunker coal, the charter party giving the vessel the liberty to stop at any port on the voyage for coal, then to proceed to Rotterdam. After leaving port at Ship Island she proceeded on her voyage to Norfolk, and about half-past seven o’clock on the morning of April 22, while proceeding close to the Florida reefs, was captured as stated. She made no resistance at the time of her capture, there were no military or naval officers on board of her, and she carried no arms or munitions of war. The evidence is undisputed that the vessel, when captured, was proceeding on her voyage to Norfolk. Previous to sailing from Ship Island she was furnished with a bill of health, in which it was stated that she was now “ready to depart from the port of Pascagoula, Mississippi, [which is the customs port of Ship Island,] for Norfolk, Virginia, and other places beyond the sea.” Her manifest showed that she was bound for Norfolk. It is headed “ Coast Manifest,” and after a description of the cargo it continues: “ Permission is hereby granted to said vessel to proceed from this port to Norfolk, in the district of Norfolk and State of Virginia, to lade bunker coal; ” and it was signed and sealed by the deputy collector of Pascagoula, district of Pearl River, Mississippi, on April 14, 1898, and the fees therefor paid. The ship’s clearance was for Norfolk, and contained the same permission to proceed there, to lade bunker coal. There was no evidence which tended to throw any suspicion as to the destination of the vessel. After obtaining all of her papers in the regular way, and having cleared at the custom house on April 14, 1898, she was detained at Ship Island by low water until between eight and nine o’clock a. m. of April 19, 1898, when she sailed over the bar and proceeded on her voyage. In the test affidavit of the master he swore that at all times before the ship’s seizure he and all of his officers were ignorant th^it war existed between Spain and the United States, and the vessel at the time of her capture was following the ordinary course of her voyage, THE BUENA VENTURA. 387 Opinion of the Court. The various proceedings of Congress, proclamations of the President, letters of the Secretary of State, and other public documents connected with occurrences leading up to the breaking out of hostilities between this country and Spain are contained in this record, but are also set forth at sufficient length in the statement of facts contained in the report of the case of The Pedro, ante 355, and it is unnecessary, therefore, to repeat them. After a hearing the District Court on the 27th of May, 1898, condemned the vessel, 87 Fed. Rep. 927, which was sold under the final decree of the court, and her proceeds deposited to abide the event of an appeal, which was then taken on the part of the claimant. Mr. J. Parker Kirlin for appellant. Mr. Assistant Attorney General Hoyt for the United States. Mr. Joseph K. McCammon and Mr. James II. Hayden, for the naval captors, were on Mr. Hoyt’s brief. Mr. George A. King and Mr. William B. King filed a brief for certain captors. Mb. Justice Peckham, after stating the facts as above, delivered the opinion of the court. The Buena Ventura was a Spanish merchant vessel in the peaceful prosecution of her voyage to Norfolk, Virginia, from Ship Island, in the State of Mississippi, when, on the morning of April 22, 1898, she was captured as lawful prize of war, of the existence of which, up to the moment of capture, all her officers were ignorant. She was not violating any blockade, carried neither contraband of war nor any officer in the military or naval service of the enemy, nor any dispatch of or to the Spanish Government, and attempted no resistance when captured. The facts regarding this vessel place her within that class 388 OCTOBER TERM, 1899. Opinion of the Court. which this Government has always desired to treat with great liberality. It is, as we think, historically accurate to say that this Government has always been, in its views, among the most advanced of the Governments of the world in favor of mitigating, as to all non-combatants, the hardships and horrors of war. To accomplish that object it has always advocated those rules which would in most cases do away with the right to capture the private property of an enemy on the high seas. 3 Wharton’s International Law Digest, § 342. The refusal, of this Government to agree to the Declaration of Paris was founded in part upon the refusal of the other Governments to agree to the proposition exempting private property, not contraband, from capture upon the sea. It being plain that merchant vessels of the enemy carrying on innocent commercial enterprises at the time or just prior to the time when hostilities between the two countries broke out, would, in accordance with the later practice of civilized nations, be the subject of liberal treatment by the Executive, it is necessary when his proclamation has been issued, which lays down rules for treatment of merchant vessels, to put upon the words used therein the most liberal and extensive interpretation of which they are capable; and where there are two or more interpretations which possibly might be put upon the language, the one that will be most favorable to the belligerent party, in whose favor the proclamation is issued, ought to be adopted. This is the doctrine of the English courts, as exemplified in The Phoenix, Spink’s Prize Cases, 1, 5, and The Argo, Id. p. 52. It is the doctrine which this court believes to be proper and correct. To ascertain the intention of the Executive we must look to the words which he uses. If the language is plain and clear, and the meaning not open to discussion, there is an end of the matter. If, however, such is not the case, and interpretation or construction must be resorted to for the purpose of ascertaining the precise meaning of the text, it is our duty with reference to this public instrument to make it as broad in its exemptions as is reasonably possible. THE BUENA VENTURA. 389 Opinion of the Court. If inferences must be drawn therefrom in order to render certain the limitations intended, those inferences should be, so far as is possible, in favor of the claimant in behalf of the owners of the vessel. The language to justify an exemption of the vessel must, it is true, be found in the proclamation ; yet if such language fail to state with entire clearness the full extent and scope of such exemption, thereby making it necessary that some interpretation thereof should be given, it is proper to refer to the prior views of the Executive Department of the Government as evidence of its policy regarding the subject. This is not for the purpose of enlarging the natural and ordinary meaning of the words used in the proclamation, but for the purpose of thereby throwing some light upon the intention of the Executive in issuing the instrument and also to aid in the interpretation of the language employed therein, where the extent or scope of that language is not otherwise entirely plain and clear. A reference to the views that have heretofore been announced by the Executive Department is made in 3 Wharton, supra, and it will be found that they are in entire accord with the most liberal spirit for the treatment of non-combatant vessels of the enemy. We come now to the construction of the instrument. It will be seen that Congress on the 25th of April, 1898, declared war against Spain, and in the declaration it is stated that war had existed since the 21st of April preceding. The President on the 26th of April issued his proclamation regarding the principles to be followed in the prosecution of the war. It is dated the day it was issued. The fourth clause thereof may for convenience be here reproduced, as follows: ‘ 4. Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21st, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage, if, upon examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, that nothing herein 390 OCTOBER TERM, 1899. Opinion of the Court. contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy; or any coal (except such as may be necessary7 for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government.” What is included by the words “ Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places”? At what time must these Spanish vessels be “ in any ports or places within the United States ” in order to be exempt from capture? The time is not stated in the proclamation, and therefore the intention of the Executive as to the time must be inferred. It is a case for construction or interpretation of the language employed. That language is open to several possible constructions. It might be said that in describing Spanish merchant vessels in any ports, etc., it was meant to include only those which were in such ports on the day when the proclamation was issued, April 26. Or it might be held (in accordance with the decision of the District Court) to include those that were in such ports on the 21st of April, the day that war commenced, as Congress declared. Or it might be construed so as to include not alone those vessels that were in port on that day, but also those that had sailed therefrom on any day up to and including the 21st of May, the last day of exemption, and were, when captured, continuing their voyage, without regard to the particular date of their departure from port, whether immediately before or subsequently to the commencement of the war or the issuing of the proclamation. The District Judge, before whom several cases were tried together, held that the date of the commencement of the war (April 21) was the date intended by the Executive; that as the proclamation of the 22d of April gave thirty days to neutral vessels found in blockaded ports, it was but reasonable to consider that the same number of days, commencing at the outbreak of the wTar, should be allowed so as to bring it to the 21st of May, the day named; that although a retrospective THE BUENA VENTURA. 391 Opinion of the Court. effect is not usually given to statutes, yet the question always is, what was the intention of the legislature ? He also said that “the intention of the Executive was to fully recognize the recent practice of civilized nations, and not to sanction or permit the seizure of the vessels of the enemy within the harbors of the United States at the time of the commencement of the war, or to permit them to escape from ports to be seized immediately upon entering upon the high seas.” (See preamble to proclamation.) In the Buena Ventura, the case at bar, the District Judge held that her case “ clearly does not come within the language of the proclamation.” It is true the proclamation did not in so many words provide that vessels which had loaded in a port of the United States and sailed therefrom before the commencement of the war should be entitled to continue their voyage, but we think that those vessels are clearly within the intention of the proclamation under the liberal construction we are bound to give to that document. An intention to include vessels of this class in the exemption from capture seems to us a necessary consequence of the language used in the proclamation when interpreted according to the known views of this Government on the subject and which it is to be presumed were the views of the Executive. The vessel when captured had violated no law, she had sailed from Ship Island after having obtained written permission, in accordance with the laws of the United States, to proceed to Norfolk in Virginia, and the permission had been signed by the deputy collector of the port and the fees therefor paid by the ship. She had a cargo of lumber, loaded but a short time before the commencement of the war, and she left the port but forty-eight hours prior to that event. The language of the proclamation certainly does not preclude the exemption of this vessel, and it is not an unnatural or forced construction of the fourth clause to say that it includes this case. The omission of any date in this clause, upon which the vessel must be in a port of the United States, and prior to 392 OCTOBER TERM, 1899. Opinion of the Court. which the exemption would not be allowed, is certainly very strong evidence that such a date was not material, so long as the loading and departure from our ports were accomplished before the expiration of May 21. It is also evident from the language used that the material concern was to fix a time in the future, prior to the expiration of which vessels of the character named might sail from our ports and be exempt from capture. The particular time at which the loading of cargoes and sailing from our ports should be accomplished was obviously unimportant, provided it was prior to the time specified. Whether it was before or after the commencement of the war, would be entirely immaterial. This seems to us to be the intention of the Executive, derived from reading the fourth clause with reference to the general rules of interpretation already spoken of, and we think there is no language in the proclamation which precludes the giving effect to such intention. Its purpose was to protect innocent merchantmen of the enemy who had been trading in our ports from capture, provided they sailed from such ports before a certain named time in the future, and that purpose would be wholly unaffected by the fact of a sailing prior to the war. That fact was immaterial to the scheme of the proclamation, gathered from all its language. We do not assert that the clause would apply to a vessel which had left a port of the United States prior to the commencement of the war and had arrived at a foreign port and there discharged her cargo, and had then left for another foreign port prior to May 21. The instructions to United States ships, contained in the fourth clause, to permit the vessels “ to continue their voyage ” would limit the operation of the clause to those vessels that were still on their original voyage from the United States, and had taken on board their cargo (if any they had) at a port of the United States before the expiration of the term mentioned. The exemption would probably not apply to such a case as The Phoenix, (Spink’s Prize Cases, 1). That case arose out of the English Order in Council, made at the commencement of the Crimean war. The vessel had sailed from an English port in the middle of THE BUENA VENTURA. 393 Opinion of the Court. February, 1854, with a cargo, bound for Copenhagen, and having reached that port and discharged her cargo by the middle of March, she had sailed therefrom on the 10th of April, bound to a foreign port, and was captured on the 12th of April while proceeding on such voyage. The Order in Council was dated the 29th of March, 1854, and provided that “ Russian merchant vessels, in any ports or places within her Majesty’s dominions, shall be allowed until the tenth day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places,” etc. The claim of exemption was made on the ground that the vessel had been in an English port, and although she sailed therefrom in the middle of February to Copenhagen and had there discharged her cargo, before the Order in Council was promulgated, yet it was still urged that she was entitled to exemption from capture. The court held the claim was not well founded, and that it could not by any latitude of construction hold a vessel to have been in an English port on the 29th of March, which on that day was lying in the port of Copenhagen, having at that time discharged the cargo which she had taken from the English port. It is true the court took the view that the vessel must at all events have been in an English port on the 29th of March in order to obtain exemption, and if not there on that day, the vessel did not come within the terms of the order and was not exempt from capture. From the language of the opinion in that case it would seem not only that a vessel departing the day before the 29th of March would not come within the exemption, but that a vessel arriving the day after the 29th, and departing before the 10th of May following, would also fail to do so; that the vessel must have been in an English port on the very day named, and if it departed the day before or arrived the day after, it was not covered by the order. The French Government also, on the outbreak of the Crimean war, decreed a delay of six weeks, beginning on the date of the decree, to Russian merchant vessels in which to leave French ports. Russia issued the same kind of a decree, and other nations have at times made the same provisions. It is 394 OCTOBER TERM, 1899. Opinion of the Court. claimed that they confine the exemption to vessels that are actually within the ports of the nation at the date of issuing the decree or order. We are not inclined to put so narrow a construction upon the language used in this proclamation. The interpretation wrhich we have given to it, while it may be more liberal than the other, is still one which may properly be indulged in. If this vessel, instead of sailing on the 19th, had not sailed until the 21st of April, the court below says she would have been exempt from capture. In truth, she was from her character and her actual employment just as much the subject of liberal treatment, and was as equitably entitled to an exemption when sailing on the 19th, as she would have been had she waited until the 21st. No fact had occurred since her sailing which altered her case in principle from the case of a vessel which had been in port on, though sailing after, the 21st. To attribute an intention on the part of the Executive to exempt a vessel if she sailed on or after the 21st of April, and before the 21st of May, and to refuse such exemption to a vessel in precisely the same situation, only sailing before the 21st, would, as we think, be without reasonable justification. It may safely be affirmed that he never had any such distinction in mind and never intended it to exist. There is nothing in the nature of the two cases calling for a difference in their treatment. They both alike called for precisely the same rule, and if there be language in the clause or proclamation from which an inference can be drawn favorable to the exemption, and none which precludes it, we are bound to hold that the exemption is given. We think the language of the proclamation does permit the inference and that there is none which precludes it. We are aware of no adjudications of our own court as to the meaning to be given to words similar to those contained in the proclamation, and it may be that a step in advance is now taken upon this subject. Where, however, the words are reasonably capable of an interpretation which shall include a vessel of this description in the exemption from capture, we are not averse to adopting it, even though this court may be the first to do so. If the Executive should hereafter be inclined THE BUENA VENTUBA. Opinion of the Court. 395 to take the other view, the language of his proclamation could be so altered as to leave no doubt of that intention, and it would be the duty of this court to be guided and controlled by it. Deciding as we do in regard to the fourth clause, it becomes unnecessary to examine the other grounds for a reversal discussed at the bar. The question of costs then arises. We had occasion in The Olinde Rodrigues, 174 U. S. 510, to examine that question in relation to the existence of probable cause for making the capture. In that case it was held that such probable cause did exist, and although the facts therein proved did not commend the vessel to the favorable consideration of the court, yet upon a careful review of the entire evidence we held that we were not compelled to proceed to the extremity of condemning the vessel. Restitution was, therefore, awarded, but without damages. Payment of the costs and expenses incident to her custody and preservation, and of all costs in the case except the fees of counsel, were imposed upon the ship. In this case, but for the proclamation of April 26, the ship would have been liable to seizure and condemnation as enemy’s property. At the time of seizure, however, (April 22,) that proclamation had not been issued, and hence there was probable cause for her seizure, although the vessel was herself entirely without fault. The subsequent issuing of the proclamation covering the case of a vessel situated as was this one took away the right to condemn which otherwise would have existed. Thus, at the time of seizure, both parties, the capturing and the captured ship, were without fault, and while we reverse the judgment of condemnation and award restitution, we think it should be without damages or costs in favor of the vessel captured. The ship having been sold, the moneys arising from the sale must be paid to the claimant without the deduction of any costs arisi/ng in the proceeding, but after deducting the expenses properly incident to her custody and preservation up to the time of her sale, and it is so ordered. The Chief Justice and Mr. Justice Gray and Mr. Justice McKenna dissented. 396 OCTOBER TERM, 1899. Statement of the Case. KING v. CROSS. ERROR TO THE SUPREME COURT OF THE STATE OF RHODE ISLAND. No. 28. Argued October 12,1899. — Decided December 11, 1899. An attachment regularly made in Rhode Island at the suit of a citizen of Rhode Island, of a debt due from a Rhode Island corporation to a citizen of Massachusetts, the day after the latter had filed in Massachusetts a petition for the benefit of the Massachusetts insolvent laws, but eight days before the publication of notice of the issue of a warrant on that petition, is a valid attachment, and is not dissolved by a subsequent assignment under those laws, notwithstanding the provision thereof dissolving attachments of the property of an insolvent debtor, made within four months before the first publication of such notice, that provision having no extra-territorial effect. The firm of Brown, Steese & Clarke, established in Boston, on the 12th day of August, 1889, filed in the proper court in and for the county of Norfolk, Massachusetts, a petition praying to be allowed to take the benefit of the insolvent laws of the State of Massachusetts. On the day after — that is, on the 13th of August, 1889 — John A. Cross, a citizen of Rhode Island, residing at Providence in that State, commenced suit in Rhode Island against the members of the firm of Brown, Steese & Clarke on two negotiable notes drawn by the firm. The Lippitt Woolen Company and two other Rhode Island corporations carrying on business in that State were served, on the day the suit was filed, with trustee process on the averment that these corporations were indebted to the above named firm. The Lippitt Woolen Company answered under the trustee process, disclosing the sum of its indebtedness. In the insolvency proceedings an assignee was appointed, and he commenced suit in Massachusetts against the Lippitt Woolen Company to recover the debt due by that corporation to the insolvent firm, and against which debt the trustee process had been issued in Rhode Island, and Hiram Leonard, a resident of Massachusetts, and who was indebted to the Lippitt Woolen Company, was made a garnishee. Pending KING v. CROSS. 397 Statement of the Case. these proceedings the assignee sold the claim against the Lippitt Woolen Company and one against another corporation to Theophilus King, a resident of Massachusetts, and he was substituted as plaintiff in the action- in Massachusetts above referred to. The Lippitt Woolen Company pleaded the pendency of the trustee process against it in the Rhode Island court. The Massachusetts court entered judgment in favor of the plaintiff King and against the Lippitt Woolen Company and the garnishee Leonard. The court, however, directed that execution on the judgment be stayed and the parties enter into a stipulation that no execution should issue until the proceedings in the Rhode Island action had been fully determined. Thereupon King was allowed, by the Rhode Island court, to become a party to the action there pending so far as necessary to enable him to assert his title to the indebtedness due by the Lippitt Woolen Company and other corporations to the firm of Brown, Steese & Clarke, which debts were covered by the trustee process previously issued in Rhode Island under the circumstances already stated. In the Rhode Island court both King and the Lippitt Woolen Company pleaded the proceedings under the insolvent laws of Massachusetts, the sale by the assignee to King and. the judgment of the court in Massachusetts, heretofore referred to, and asserted that thereby the title to the indebtedness due by the Lippitt Woolen Company to Brown, Steese & Clarke passed to King, and that such title was superior to any lien supposed to have arisen from the trustee process which had been issued in the Rhode Island action. The court gave judgment in favor of the plaintiff Cross, charging the Lippitt Woolen Company for the amount of the debt due by that corporation to the firm of Brown, Steese & Clarke, as stated in the answer of the Lippitt Woolen Company to the trustee proceedings. The court therefore rejected the claim of title preferred by King, and acquired by him in the insolvency proceedings in Massachusetts, and in effect decided that the trustee process in Rhode Island operated to create a paramount lien on the debt due by the Lippitt Woolen Company, and was 398 OCTOBER TERM, 1899. Opinion of the Court. unaffected by the insolvency proceedings in Massachusetts and the action taken on the subject in the courts of that State. Motions for a new trial upon numerous grounds were filed on behalf of the Lippitt Woolen Company and the claimant King. These motions were heard before the Appellate Division of the Supreme Court of Rhode Island, and that court overruled them. 19 R. I. 220. The case was then brought to this court by writ of error. In substance, the grounds relied on in this court for a reversal are, that at the time of the service of the trustee process the Rhode Island court was wholly wanting in jurisdiction over the defendants in the action, residents of Massachusetts, and over their property, and that by charging the Lippitt Woolen Company as trustee for the benefit of the plaintiff Cross, the tribunal last mentioned failed to give full faith and credit to the judicial proceedings in the insolvency court in Massachusetts. A/?. Charles H. Hanson for plaintiffs in error. Mr. John C. Coombs and Mr. Robert W. Burbank were on his brief. Mr. William R. Tillinghast for defendant in error. Mr. James Tillinghast was on his brief. Me. Justice White, after making the foregoing statement, delivered the opinion of the court. It is first asserted that the judgment of the Supreme Court of the State of Rhode Island was not due process of law, and was in conflict with the Fourteenth Amendment to the Constitution of the United States, because it recognized the right, in a suit brought in Rhode Island against a non-resident defendant, to garnishee the resident debtor of such defendant. It is contended that a judgment rendered by a court against a defendant who is neither within its jurisdiction, by his person or his property, is wholly void, and any attempt to enforce such judgment amounts to a denial of due process of law. The Rhode Island court, it is claimed, had no jurisdiction over the defendant firm because it was a resident of Massachusetts, and KING v. CROSS. 399 Opinion of the Court. it is asserted that such court had no property of the firm within its control upon which to exercise its jurisdiction. True it is the Lippitt Woolen Company, which alone was charged by the judgment, was made a trustee under the Rhode Island process, and was indebted to the Massachusetts firm; but this fact, it is asserted, did not establish that there was any right in Rhode Island to be subjected to the jurisdiction of the courts of that State, for the following reasons: The situs of movable property is at the domicil of the owner of such property, and therefore the situs of the claim or credit held by the Massachusetts firm against the Lippitt Woolen Company was not in Rhode Island, where the Lippitt Woolen Company was resident, but was in Massachusetts, where the creditor firm was established. The contention in substance is that any process of foreign attachment predicated upon the assumed right to levy on debts due to non-residents by persons within the State wherein the process issues is absolutely void, hence a denial of due process of law. We need not enter into a review of the contentions thus presented, since they were all considered by this court at its last term and held to be untenable. Chicago, Hock Island dec. Railway v. Sturm, 174 IT. S. 710. Conceding, however, as a general rule, that jurisdiction as to a non-resident can be acquired by trustee or garnishment process against a resident debtor of a non-resident defendant, it is urged that the facts in this case cause it to be an exception to this general principle. The proceedings in involuntary insolvency were begun in Massachusetts before the commencement of the suit in Rhode Island. The legal effect of the insolvency proceedings, it is asserted, was to vest all the credits of the insolvent in the court of insolvency of Massachusetts, and therefore there could legally be no debt due to the non-resident insolvent in Rhode Island, because that debt by operation of the Massachusetts insolvent proceedings had ceased to be a debt due the firm, and had become a debt controlled by the Massachusetts insolvent court. The debt in Rhode Island originally due to the firm in Massachusetts can pot? it is claimed, be treated as continuing after the insolvency 400 OCTOBER TERM, 1899. Opinion of the Court. proceedings to be due to the firm without refusing to give effect to the proceedings in Massachusetts, and such refusal is therefore asserted to be the necessary result of the judgment of the court of Rhode Island which is before us for review. The contention thus relied upon, it is argued, is not contrary to the settled rule that insolvency proceedings of the several States do not have extra-territorial operation; and it is also asserted that the claim here relied upon is not contrary to the decision of this court in Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624. In that case it was held that a general assignment for the benefit of creditors, made by an insolvent under the insolvent laws of a State, did not operate to exempt tangible property, situated at the time of the insolvent assignment in another State, from seizure in the State where the tangible property was actually situated. This decision, it is claimed, was but an exemplification of the general rule limiting insolvency proceedings of one State to the jurisdiction of that State and depriving them of extra-territorial operation. A mere credit, however, it is asserted, conceding it to be subject to attachment or trustee process at the residence of the debtor, is governed by a different rule from that which controls tangible property. Such credit, the claim is, being at the situs of the domicil of the creditor, passes to the custody of the insolvent court when the insolvent law so provides, and therefore comes under the dominion and control of the insolvent court having jurisdiction of the person of the creditor. As by operation of law the credit from the date of insolvency proceedings at the residence of the creditor ceases to be under his dominion, but, on the contrary, is in gremio legis, the power to levy by garnishee or trustee process on the same at the residence of the debtor is destroyed. But the predicate upon which this contention rests is that the Massachusetts insolvent proceedings operated to deprive the insolvent of all control over his assets prior to or at the time when the suit in Rhode Island was commenced and the trustee process there issued. If this premise is unsound the whole contention is without merit, and therefore the legal proposition deduced from it need not be examined. KING v. CROSS. 401 Opinion of the Court. The statutes of the State of Massachusetts on the subject of insolvency provide: First, for the adjudication by the judge of the court of insolvency upon a voluntary petition ; second, for the issue of a warrant for the sequestration of the effects of a petitioning debtor; third, for publication of a notice of the issue of this warrant; fourth, for a meeting of creditors and the election of an assignee; and, fifth, for an assignment by the judge of the court of insolvency to the assignee so elected. Mass. Pub. Stat. 1882, ch. 157, §§ 16, 17, 24, 40, 44. The forty-sixth section of the act which provides when proceedings under it shall operate to divest the debtor of control over his property is reproduced in the margin.1 Now the petition in insolvency on behalf of the firm of Brown, Steese & Clarke was filed in the court of insolvency on August 12, 1889, a day prior to the commencement by Cross of his action in Rhode Island and the service of the trustee process. The warrant, however, addressed by the Massachusetts insolvent court to the sheriff, directing him as messenger, to' take possession of the estate of the insolvent, was not issued until August 21, 1889, the first publication of notice of the issue of such warrant was made on August 23,1889, and 1 “ Sec. 46. The assignment shall vest in the assignee all the property of the debtor, real and personal, which he could have lawfully sold, assigned or conveyed, or which might have been taken on execution upon a judgment against him, at the time of the first publication of the notice of issuing the warrant in case of voluntary proceedings, and at the time of the first publication of notice -pf the filing of the petition in cases of involuntary proceedings, and shall be effectual, subject to the provisions of the following section, to dissolve any attachment on mesne process made not more than four months prior to the time of the first publication aforesaid. The assignment shall vest in the assignee all debts due to the debtor or any person for his use, and all liens and securities therefor, and all his rights of action for goods or estate, real or personal, and all his rights of redeeming such goods or estate. The assignee may redeem all mortgages, conditional contracts, pledges, and liens of or upon any goods or estate of the debtor, or sell the same subject to such mortgage or other incumbrance, and if a mortgage is foreclosed, pending proceedings in insolvency, and before the appointment of an assignee, or within sixty days thereafter, the assignee, when appointed, may redeem the same at any time within sixty days after the appointment, with remedies similar to those provided by law for the redemption of mortgages before foreclosure.” VOL. CLXXV—26 402 OCTOBER TERM, 1899. Opinion of the Court. the assignment to the assignees elected by the creditors was made by the judge of the insolvency court on September 4,1889. The first question presented then is: At what date was the firm of Brown, Steese & Clarke, by force of the insolvent laws of Massachusetts, divested of the title and control of their personal property, tangible and intangible ? If the Massachusetts insolvent law did not, from the mere fact of filing the petition of insolvency, operate to divest the insolvent of all control of his credits, it is obvious that such control existed in the creditor when the suit was begun in Rhode Island, for the only step taken in the Massachusetts proceedings prior to the commencement of the suit in Rhode Island was the filing of the petition in insolvency. Every other step in the insolvency was taken after the Rhode Island suit was begun, and the trustee process there levied. Now the text of the Massachur setts statute clearly provides that “ the assignment shall vest in the assignee all the property of the debtor, real and personal, which he could have lawfully sold, assigned or conveyed, or which might have been taken on execution upon a judgment against him, at the time of the first publication of the notice of issuing the warrant in case of voluntary proceedings.” The decisions of the Supreme Judicial Court of Massachusetts leave no doubt that up to the first publication of notice of the issuing of the warrant the insolvency proceedings do not divest the insolvent of all control of his assets and credit. We premise, however, before reviewing these decisions, that the portions of the present insolvent statutes of Massachusetts, as contained in chapter 157 of the Public Statutes of 1882, so far as they bear upon the question now under consideration, substantially reproduce the provisions of chapter 163 of the statutes of 1838. We place in the margin a portion of section 5 of the latter act, which, it will be seen, declares the effect of a formal assignment by the judge of the court of insolvency in practically similar language to that contained in section 46 of chapter 157 of the Public Statutes of 1882, already referred to.1 1 “ Sec. 5. The said judge shall, by an instrument under his hand and seal, assign and convey to the person or persons chosen or appointed assignees as aforesaid, all the estate, real and personal, of the debtor, excepting KING v. CROSS. 403 Opinion of the Court. Under the statute of 1838, it was early settled in Massachusetts that the property of an insolvent debtor was not to be regarded as in the custody of the law until the publication of the first notice of the issuance of the warrant, and that until such time the insolvent might bona fide transfer his property, and that it was subject to seizure under judicial process. Thus, in Briggs v. Parkman, (1841) 2 Met. 258, it was held that an assignment, under the statute of 1838, vested in the assignee only the property which the debtor had at the time of the first publication of the notice of the issuing of the warrant against him. In 1842, in Judd n. Ives, 4 Met. 401, on a petition of Judd, an insolvent debtor, asking that proceedings be set aside which had been instituted before a master in chancery under Stat. 1838, c. 163, in considering the question whether the United States bankrupt act which went into operation on the 1st of February, 1842, superseded or suspended the insolvency proceedings referred to, the court, at page 402, said (italics ours) : “ But we are nevertheless of opinion, that this consequence of the act is limited to cases instituted under the insolvent law subsequent to the period when the bankrupt law went into operation, and that it cannot supersede or suspend proceedings rightfully commenced under the insolvent act, prior to the time of its going into operation. The counsel for the such as may be by law exempte’d from attachment, with all his deeds, books and papers relating thereto; which assignment shall vest in the assignees all the property of the debtor, both real and personal, which he could by anyway or means have lawfully sold, assigned or conveyed, or which might have been taken in execution on any judgment against him, at the time of the first publication of the notice of issuing the above mentioned warrant, although the same may then be attached on mesne process as the property of the said debtor; and such assignment shall be effectual to pass all the said estate, and dissolve any such attachment; and the said assignment shall also vest in the said assignees all debts due to the debtor, or to any person for his use, and all liens and securities therefor, and all his rights of action for any goods or estate, real or personal, and all his rights of redeeming any such goods or estate; and the assignees shall have power to redeem all mortgages, conditional contracts, pledges and liens, of or upon any goods or estate of the debtor, or to sell the same, subject to such mortgage or other incumbrance. . . .” 404 OCTOBER TERM, 1899. Opinion of the Court. petitioner admits that it could not, if the property of the insolvent had been actually assigned prior to the first of February, when the bankrupt law went into operation; but he contends, that as the assignment in this case was not actually made until the 7th of February, the whole proceedings were suspended or superseded. Upon consideration, we are of opinion that the proceedings under the commission are not to be thus separated, but that they are to be treated as the parts of one whole; that the assignment not only relates back to the first publication of the notice, and vests all the property of the debtor, both real and personal, in the assignee, but that the debtor is divested of his property, before such assignment, by virtue of the warrant to the messenger and the taking of the property of the debtor into custody, by force of which a qualified property in the estate vests in the messenger, insomuch that no act of the debtor, after the due service and publication of the warrant, can be lawfully done to make any transfer of his property, or to affect the rights of any of his creditors: That the property is, by the act of publication, placed in the custody of the law, in the person of the messenger; and that the judge or master alone can dispose of the same, by the appointment of an assignee to receive it, or by dissolving the process.” In Clarke n. Minot, (1842) 4 Met. 346, in the course of the opinion, the court, in speaking through Chief Justice Shaw, of the time when under the insolvency laws the insolvent debtor was divested of control over his assets, said : “The question then recurs, to what time does this assignment relate back? The statute, sec. 5, thus states it: ‘Which assignment shall vest in the assignee all the property of the debtor, both real and personal, which he could by any way or means have lawfully sold, assigned or conveyed, or which might have been taken on execution on any judgment against him, at the time of the first publication of the notice of issuing the above mentioned warrant.’ This leads directly to the inquiry, what is the time of the first publication thus referred to, and for this we go to the second section. The first section having provided for the issuing of a warrant to a messenger KING v. CROSS. 405 Opinion of the Court. to take possession, etc., the second section provides as follows: ‘The said messenger shall forthwith give public notice, by advertisement, in such newspapers as shall be designated by the judge, and also such personal or other notice to any persons concerned, as the judge shall prescribe.’ “ It seems to have been the obvious policy of the statute, to fix some precise point of time, at which the whole property and effects of the debtor shall be deemed to have passed from him, and vested in the assignees. The legislature appear to have intended that a time should be fixed, before which all transfers and conveyances of property by the debtor, made in good faith, and not intended to give preferences, shall be valid; so of all payments in the ordinary course of business, and transfers of property, made without the concurrence of the owner, as by seizure or levy on execution. ***** “We are now seeking to ascertain and fix the point of time intended by the statute as the time at which all the property of the debtor is changed and his power over it suspended; that point, in other words, prior to which all payments, made by him or to him, all conveyances (not fraudulent) made by him, all seizures, levies and extents of .execution upon his property, shall be held valid, and all those, made after, void. It was competent for the legislature to have fixed any other time, as, for instance, the application to the judge, or the act of the judge in issuing the warrant, or the delivery of the warrant to the messenger. Either of these would have afforded security to the creditors, but might have unjustly interfered with the rights of those who had been dealing with the debtor, in good faith and without notice. The time of first publication was fixed, obviously because that act would, m most cases, afford actual notice to those immediately interested ; and it was intended as constructive notice to all. But no such effect can be attributed to personal notice to one individual.” In Butler n. Mullen, (1868) 100 Mass. 453, the rulings above referred to were reiterated. The syllabus of the case is as follows: 406 OCTOBER TERM, 1899. Opinion of the Court. “ One who has been charged as the trustee of H., by a judgment in the trustee process, and has paid to the judgment creditor, on execution, the sum with which he has been so charged, will not be protected against H.’s assignee in insolvency, if the first publication of the warrant in insolvency against H. was before the rendition of the judgment in the trustee process, though he had no actual notice of H.’s insolvency until after payment.” In delivering the opinion of the court, Hoar, J"., at page 454, said (italics ours): “ The payment by the defendants upon the judgment against them as trustees was a valid payment as against Holbrook, his executors and administrators. (Gen. Sts., c. 142, sec. 37.) But it had no validity against a party whose title intervened before the judgment against them was rendered, and whose title was superior to the attachment by which the fund had been held. Not only does the assignment, when made, relate back to the first publication of the notice in insolvency, and vest all the property of the debtor in the assignee, but before the assignment the debtor is so far divested of his property, by virtue of the issuing of the warrant, that/wm the first publication no transfer or conveyance of it can be made which will have any validity against the assignee. Gen. Sts., c. 118, sec. 44; Clarke v. Minot, 4 Met. 346; Judd v. Ives, lb. 401; Edwards v. Sumner, 4 Cush. 393; Gallup n. Robinson, 11 Gray, 20.” It being thus made patent that there is no merit in the contention that the operation of the Massachusetts insolvent law was to divest the insolvent of all control over his assets from the mere date of the filing of petition in insolvency, but, on the contrary, that the Massachusetts law only produced such effect from the time of the first publication of the notice of issuing the warrant, it follows, as the levy of the trustee process in Rhode Island was prior to the first publication of the warrant, that the whole theory upon which the argument in this case proceeds is fallacious. It is therefore unnecessary to express any opinion on the legal proposition urged upon our attention on an erroneous conception of the Massachusetts KING v. CROSS. 407 Opinion of the Court. law. This becomes evident when it is considered that the case as presented does not involve the power of a Massachusetts court to assert control over a citizen of that State in order to prevent him from prosecuting in Rhode Island an attachment levied by him upon property in Rhode Island, in supposed violation of the laws of Massachusetts. On the contrary, the question here is simply whether a citizen of Rhode Island was prevented in the courts of his own State from levying an attachment upon a debt due by a citizen and resident of Rhode Island to a citizen and resident of Massachusetts because such levy was in conflict with the Massachusetts insolvent statutes. And this, although by the statutes of Massachusetts the debt levied on in Rhode Island by the citizen of the latter State, if such debt had been situate in Massachusetts, would have been subject to the disposition and control of the insolvent. The foregoing considerations would suffice to dispose of the case, but for the fact that it is claimed that as by the Massachusetts statute an assignment by the judge of the insolvent court dissolved attachments made within four months from the first publication aforesaid, therefore, although the trustee process in Rhode Island was issued at a time when the debtor was not divested of control of the claim, nevertheless, by the operation of the Massachusetts law upon the Rhode Island levy, the latter should be dissolved. This contention, however, but asserts that the Massachusetts insolvent statute had, in this particular, an extra-territorial operation, and thereby controlled proceedings validly instituted in Rhode Island. This, however, is in conflict with the elementary doctrine that the insolvent statutes of the respective States do not, to the extent claimed, operate extra-territorially. Security Trust Co. v. Dodd, Mead & Co., supra, and authorities there cited. Indeed, the fact that the provision of the Massachusetts statutes retroactively vacating attachments does not control attachments levied in other States at a time when under the Massachusetts insolvent law the insolvent had not by operation of law been deprived of the dominion and control over his credits, is recognized in the courts of Massachusetts. Thus, in 408 OCTOBER TERM, 1899. Opinion of the Court. Lawrence n. Batcheller, (1881) 131 Mass. 504, assignees in Massachusetts of an insolvent debtor were held not entitled to recover from a creditor of such insolvent, though the creditor was a resident and citizen of Massachusetts, the amount of sums realized through garnishment proceedings in New York, Alabama and Arkansas against persons who were indebted to the Massachusetts insolvent. The garnishment proceedings were instituted before the publication of the warrant, but it was not until after the adjudication in insolvency, and after the assignment by the judge of the court of insolvency to the assignees in insolvency, that the attachment proceedings were prosecuted to final judgment and the collections were made under the trustee process. In the course of the opinion, delivered by Field, J., at pages 506, 508, he said (italics ours): “As the attachments were made prior to the time when the assignment in insolvency took effect, and, having been made in other States, were not dissolved by the proceedings in insolvency in this Commonwealth, and were valid by the laws of the States respectively in which they were made, they must prevail over the assignment, unless the statutes of the Commonwealth make a title so acquired by a citizen of the Commonwealth void or voidable at the election of the assignees in insolvency. * * * * * “ In the case at bar, the title to the credits attached, which passed to the assignees by virtue of the proceedings in insolvency, whether it be regarded as a legal or an equitable title, was a title subject to the attachments. As neither the common law nor our statutes give any right of action on the facts agreed in this case, the assignees cannot maintain their suit if the attachments were properly made.” See also Proctor v. National Bank of the Republic, 152 Mass. 223. Affirmed. ABBOTT v. TACOMA BANK OF COMMERCE. 409 Opinion of the Court. ABBOTT v. TACOMA BANK OF COMMERCE, EKKOB TO THE SUPBEME COUBT OF THE STATE OF WASHINGTON. No. 376. Submitted November 6,1899. — Decided December 11,1899. The plaintiff in error sued the defendants in error in a state court of the State of Washington, to recover damages for a libel alleged to have been contained in the pleadings in a suit against him, instituted by them in the Circuit Court of the United States. The trial court dismissed the action, and its judgment was affirmed by the highest court of the State, which judgment so affirmed, was brought to this court by writ of error. A motion being made to dismiss the action or affirm the judgment below, Held, that there was color for the motion to dismiss, and therefore the motion to affirm could be considered; and as the judgment of the court below did not deprive the plaintiff of any right, privilege or immunity secured by the Constitution or laws of the United States, it should be affirmed. Motion to dismiss or affirm. The case is stated in the opinion. Mr. W. H. Bogle and Mr. Charles Richardson for the motion. Mr. John H. Mitchell and Mr. W. C. Sharpstein, opposing. Mb. Justice Hablan delivered the opinion of the court. The plaintiff in error, Abbott, brought this action in the Superior Court of the State of Washington to recover damages sustained by the plaintiff on account of an alleged libel published against him by the National Bank of Commerce of Tacoma, Washington, and the other individual defendants named. It appears that in 1895 the defendant bank at the instance of the other defendants as its directors and attorneys instituted a suit in the United States Circuit Court for the District of Washington against three of its former directors to recover certain alleged losses on account of loans made by them. The complaint in that suit alleged that Abbott was one of the per- 410 OCTOBER TERM, 1899. Opinion of the Court. sons to whom the loans were made, and among other things charged substantially that he was insolvent when they were made. In the present action Abbott alleged in his complaint that the statements in reference to him and his financial condition in the other suit were defamatory and untrue; that the defendants not only had no reason to believe them to be true, but knew them to be untrue, and that those statements were not pertinent, relevant or material to the bank’s cause of action. The defendants in their answer averred that the language referred to was contained in the complaint filed by the bank and not otherwise; that the court in which that complaint was filed had jurisdiction of the parties and of the subjectmatter of the action; and that the language used was pertinent, relevant and material to the issues, and was in good faith believed by defendants to be true and was true. In his reply the plaintiff, besides denying the averments of the answer, alleged that he was not a party to the action in which that complaint jvas filed, was not bound by any proceedings therein, that his rights cannot be determined in any manner thereby, and that “ any attempt to deprive him of his rights or his property by any process therein or thereunder is contrary to and in violation of the constitution and laws of the State of Washington, , and of section 1 of Article XIV of the Amendments to the Constitution of the United States.” The trial court, on motion for judgment on the pleadings, dismissed the suit upon the ground that the facts stated did not constitute a cause of action and because the matters alleged to be libellous were privileged. This judgment was affirmed by the Supreme Court of Washington. Among other things that court said : “ Whether the Federal court had jurisdiction of the cause in which the pleading was filed, and of the parties thereto, is purely a legal question to be determined from an inspection of the pleading itself. The Federal court overruled a demurrer to the bill which contained the objectionable matter, and we are constrained to hold as did that court that it had jurisdiction. See National Bank ABBOTT v. TACOMA BANK OF COMMERCE. 411 Opinion of the Court. of Commerce v. Wade et al., 84 Fed. Rep. 10. We think it requires no argument to demonstrate that the words complained of were pertinent and material to the cause, and the question to be determined is, were they absolutely privileged, regardless of whether they were true or false, used maliciously or in good faith. The doctrine of privileged communications rests upon public policy,4 which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.’ Bartlett n. Christhilf, 69 Maryland, 219. It cannot be doubted that it is a privilege liable to be abused, and its abuse may lead to great hardships; but to give legal sanction to such suits as the present would, we think, give rise to far greater hardships.” Abbott v. Nat. Bank of Commerce, 20 Washington, 552. Among the errors assigned in this court are that the Supreme Court of Washington erred in affirming the judgment of the Superior Court of Pierce County because the effect of such judgment was to deprive plaintiff in error of his property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States; in holding that the United States Circuit Court for the District of Washington, Western Division, had jurisdiction of the suit brought by the National Bank of Commerce of Tacoma; in holding that the libellous matter contained in the bill of complaint filed in that suit was privileged; and in holding that such matter was pertinent and material to the issue in that suit. This case is now before us upon motion to dismiss the present writ of error for want of jurisdiction in this court, and, that motion failing, to affirm the judgment below on the ground that the question upon which jurisdiction depends is such as not to need further argument. The question whether the Circuit Court of the United States had jurisdiction to entertain the suit brought by the National Bank of Commerce was raised in the action brought by the bank and was decided in its favor — the court holding that the case was one arising under the laws of the United States, in that it involved the question whether or not the action 412 OCTOBER TERM, 1899. Opinion of the Court. could be maintained under section 5239 of the Revised Statutes before the violation of its provisions had been determined by a proper court in a suit brought for that purpose by the Comptroller of the Currency. National Bank of Commerce v. Wade, above cited. That section is as follows: “ § 5239. If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents or servants of the association to violate any of the provisions of this Title, all the rights, privileges and franchises of the association shall be thereby forfeited. Such violation shall, however, be determined and adjudged by a proper Circuit, District or Territorial Court of the United States, in a suit brought for that purpose by the Comptroller of the Currency, in his own name, before the association shall be declared dissolved. And in case of such violation, every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which the association, its shareholders or any other person shall have sustained in consequence of such violation.” The Supreme Court of the State held that the Circuit Court of the United States had authority to entertain the action brought by the bank. But that decision did not bring the case within the clause of the statute giving this court jurisdiction to reexamine a final judgment or decree in the highest court of the State “ where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity.” Rev. Stat. § 709. The Circuit Court of the United States had authority to judicially determine in the case and for the parties before it whether the action brought by the bank was one arising under the laws of the United States. Its authority in that regard was not and could not have been disputed. But to deny that the bank- could bring its action in the Federal court — the bank being located in Washington and the persons sued by it being citizens of that State — was not, within the meaning of section 709, to draw in question “an authority exercised under the United States.” Besides, the decision of the same question by the state court was in sup- ABBOTT v. TACOMA BANK OF COMMERCE. 413 Opinion of the Court. port of the jurisdiction of the Circuit Court of the United States. Where the issue is as to the validity of “ an authority exercised under the United States,” we cannot review its determination by the state court, unless the decision was against the validity of the authority so exercised. As said in Balt. & Potomac Railroad v. Hopkins., 130 U. S. 210, 223, “ the distinction is palpable between a denial of the authority and a denial of a right, title, privilege or immunity claimed under it.” Clough v. Curtis, 134 U. S. 361, 369; United States v. Lynch, 137 U. S. 280, 286; Cook County v. Calumet &c. Canal db Dock Co., 138 U. S. 635, 653. Nor can we sustain the contention that our jurisdiction may rest on the clause of section 709, “or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity.” The authority of the state court to consider and pass upon the question, directly raised in the case before it, as to the jurisdiction of the Circuit Court of the United States on the bank’s suit, was not drawn in question. The contention is only that its decision was erroneous. But this court has jurisdiction under the clause of section 709, “ or where any right, title, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege or immunity specially set up or claimed by either party or authority.” The plaintiff did specially set up and claim that reputation was “property,” and that the ground on which the state court proceeded, namely, that the alleged libellous matter appeared in a pleading and could not be made the basis of an action for damages deprived him of his property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States. It is true, as suggested by plaintiff in error, that a State may not by any of its agencies, legislative, judicial or executive, disregard the prohibitions of that amendment. But even 414 OCTOBER TERM, 1899. Statement of the Case. if reputation could be deemed property within the meaning of the Fourteenth Amendment, the state court did nothing that could be regarded within the meaning of the Constitution, as depriving the plaintiff of his reputation. It only adjudged that the words used in a pleading in another suit could not be made the foundation of an action for damages. If it erred in so declaring, it was an error as to a matter of general law and involved no question of a Federal nature; still less an error which in any legal sense deprived the plaintiff of his reputation. It left his reputation as it was, and only adjudged that he could not proceed against the defendants, and by judgment and execution take their property in violation of what the court deemed to.be the principles of law governing the case. There was, in our opinion, color for the motion to dismiss, and therefore the motion to affirm may be considered; and as the judgment below did not deprive plaintiff of any right, privilege or immunity secured by the Constitution or laws of the United States, it is Affirmed. HAMILTON v. RATHBONE. ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 6. Argued November 15,1899. — Decided December 18,1899; The right given to a married woman by section 728, Revised Statutes of the District of Columbia, “ to devise and bequeath her property,” applies to all her property, and is not limited by the language of a prior act, from which this section was taken, to such as she had not acquired by gift and conveyance from her husband. In the construction of statutes, prior acts may be cited to solve, but not to create an ambiguity. This was an action of ejectment brought in the Supreme Court of the District of Columbia by Grace Abbie B. Rathbone as plaintiff, against Frances Rebecca Hamilton, defendant, to recover an undivided one third interest in a parcel of land of which the defendant Hamilton was then in possession. HAMILTON v. RATHBONE. 415 Statement of the Case. The common source of title was one Abram Elkin, who received his deed on July 31, 1867. He was married to Lucy V. Elkin, April 15, 1863. The plaintiff’s chain of title was as follows: Deed from Abram Elkin and wife to Fred. G. Calvert, April 29, 1872; deed of same date by Fred. G. Calvert and wife to Lucy V. Elkin. These deeds were evidently given to avoid a direct conveyance from husband to wife. Both deeds ran to the grantee, “ his (or her) heirs and assigns, to and for his (or her) and their sole use, benefit and behoof forever.” Lucy V. Elkin died May 3, 1876, leaving her husband, Abram Elkin, and four children: (1) Grace, the plaintiff, subsequently married to Rathbone; (2) Lucy Caroline; (3) Charles Calvert; (4) Harry Lowry, who died in 1885 at the age of nine or ten years. Abram Elkin disappeared in June, 1876, and has not been heard of since. Plaintiff sues for an undivided one third interest as one of the heirs at law of her mother. Defendant’s chain of title was as follows: Lucy V. Elkin, who died May 3, 1876, leaving a will by which she appointed Fred. G. Calvert, her brother, her sole executor. She directed that all her property, real and personal, should be sold, and gave her husband $1000 out of the proceeds of the sale, directing that the residue of such proceeds, after the payment of funeral and other necessary expenses, should be divided equally between her four children. Calvert duly qualified as executor. In February, 1879, as such executor, Calvert sold the land in controversy to the defendant Frances Rebecca Hamilton, and conveyed it to her by a deed (February 20) which recited that the sale had been made under the power conferred upon him by the will. A plea of not guilty having been interposed, the case was tried in the Supreme Court of the District by a jury, and a verdict directed for the defendant. On appeal to the Court of Appeals from the judgment entered upon the verdict so rendered, that court set aside the verdict and remanded the 416 OCTOBER TERM, 1899. Opinion of the Court. case for a new trial. Rathbone v. Hamilton, 4 App. Cases D. C. 475. A second trial was had, and the jury instructed to return a verdict for the plaintiff. From the judgment entered upon this verdict, the defendant appealed to the Court of Appeals, which affirmed the judgment. Hamilton v. Rathbone, 9 App. Cases D. C. 48. Whereupon defendant Hamilton sued out a writ of error from this court. Mr. A. 8. Worthington for plaintiff in error. Mr. A. A. Lipscomb was on his brief. Mr. M. J. Colbert for defendant in error. Mr. H. G. Milams was on his brief. Mr. Justice Brown delivered the opinion of the court. Plaintiff brings ejectment as one of the heirs at law, namely, the eldest of three children, of her mother Lucy V. Elkin, who died May 3, 1876. Defendant relies upon a purchase made by her from the executor of Mrs. Elkin’s will. To establish her title, then, plaintiff is bound to show that the property did not pass under the will of her mother, but descended to her heirs at law. The question whether it did so pass depends upon the construction given to certain acts of Congress then in force, relative to estates of married women. By the act of April 10, 1869, c. 23, 16 Stat. 45, it was enacted: “ That in the District of Columbia the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were feme sole, and shall not be subject to the disposal of her husband, nor be liable for his debts; but such married woman may convey, devise and' bequeath the same, or any interest therein, in the same manner and with like effect as if she were unmarried. “ Sec. 2. And be it further enacted, That any married HAMILTON v. RATHBONE. 417 Opinion of the Court. woman may contract, and sue and be sued in her own name, in all matters having relation to her sole and separate property in the same manner as if she were unmarried ; but neither her husband nor his property shall be bound by any such contract nor liable for any recovery against her in any such suit, but judgment may be enforced by execution against her sole and separate estate in the same manner as if she were sole.” Under the first section, the right of a married woman to dispose of her property as if she were a feme sole does not apply to property acquired by gift or conveyance from her husband. Did the case rest here, there could be no doubt that Mrs. Elkin.took this property from her husband subject to such disabilities as were imposed upon married women by the common law, except so far as the same may have been modified by the statutes of Maryland then in force, Sykes v. Chadwick, 18 Wall. 141, and the fact that she took title through her brother, Fred. G. Calvert, as an intermediary grantee, did not affect the question. Cammack v. Carpenter, 3 App. D. C. 219. The deeds from Abram Elkin to Calvert, and from Calvert to Lucy V. Elkin, were made upon the same day, recorded at the same hour of the same day, and both were for the same nominal consideration of five dollars. Add to this the fact that Calvert was the brother of Mrs. Elkin, and the inference is irresistible that it was intended as a transfer from husband to wife. We concur in the opinion of the Court of Appeals that “assuming the facts to exist as they are stated in the record, there is no escape from the conclusion that the property was acquired by gift or conveyance from the husband, though it was through the brother of the wife of the grantor as mere medium of transfer of title. There is no attempt to show that there was any real pecuniary consideration for the deeds, and the consideration stated in them is purely of a nominal character; and all the facts attending the transaction show beyond doubt that the real purpose and design of the husband was to transfer from himself to his wife the title to the property. The passing the title through a third party in no manner changed the effect of the transfer. Though the agency of a third party was VOL. CLXXV—27 418 OCTOBER TERM, 1899. Opinion of the Court. employed, it was no less in legal effect and contemplation a gift or conveyance from the husband to the wife.” Whether under the common law she held this property as her separate estate with power to devise or otherwise dispose of it, as if she were ^feme sole, is a question which does not arise in view of the statutes then existing, which we think control the case. In the revision of the statutes applicable to the District of Columbia, (passed in 1874,) the above act of 1869 was rearranged and became sections 728 to 730, as follows: “ Sec. 727. In the District the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts. “ Sec. 728. Any married woman may convey, devise and bequeath Aer property, or any interest therein, in the same manner and with like effect as if she were unmarried. “ Sec. 729. Any married woman may contract, and sue and be sued in her own name, in all matters having relation to her sole and separate property, in the same manner as if she were unmarried. “ Sec. 730. Neither the husband nor his property shall be bound by any such contract, made by a married woman, nor liable for any recovery against her in any such suit, but judgment may be enforced by execution against her sole and separate estate in the same manner as if she were unmarried.” The difference between these sections and the former act is noticeable. By the first section of the act of 1869, the absolute right of a married woman over her property is not given with respect to. such property as she has acquired by gift or conveyance from her husband. The final clause of this section reads as follows: “But such married woman may convey, devise and bequeath the same” (that is, her separate property, except as above stated,) “ or any interest therein, in the same manner and with like effect as if she were unmarried.” The fjrst clause of this section is repeated in Rev, Stat, sec. 727, HAMILTON v. RATHBONE. 419 Opinion of the Court. but the second clause is thrown into a separate section (728), which declares that “ any married woman may convey, devise and bequeath her property or any interest therein, in the same manner and with like effect as if she were unmarried.” Literally, this section extends to all her property, and is not limited to the “ same ” property described in section 727, and thus excluding that which she acquired by gift or conveyance from her husband. Under the act of 1869, therefore, the power of a married yvoman to convey, devise and bequeath her property does not extend to such as she acquired by gift or conveyance from her husband, while under section 728 it extends to all her property, however derived. The second section of the act of 1869 likewise reappears without change as sections 729 and 730, and no question is likely to arise with respect to any differences in construction. The decisive question then is whether section 728 is to be construed as an independent act, or whether the plaintiff is at liberty, by referring to the prior act from which it was taken, to show that it was the intention of Congress to limit it to the cases named in such prior act. The general rule is perfectly well settled that, where a statute is of doubtful meaning and susceptible upon its face of two constructions, the court may look into prior and (contemporaneous acts, the reasons which induced the act in question, the mischiefs intended to be remedied, the extraneous circumstances, and the purpose intended to be accomplished by it, to determine its proper construction. But where the act is clear upon its face, and when standing alone it is fairly susceptible of but one construction, that construction must be given to it. Hey-don^s case, 3 Fed. Rep. 76; United States v. Freeman, 3 How. 556; Smythe v. Fiske, 23 Wall. 374; Platt v. Union Pacific Railroad Co., 99 U. S. 48; Thornley v. United States, 113 U. S. 310; Viterbo v. Friedlander, 120 U. S. 707, 724; Lake County v. Hollins, 130 U. S. 662; United States v. Goldenberq. 168 U. S. 95. This rule has been repeatedly applied in the construction of the Revised Statutes. The earliest case is that of United States v. Hirsch, 100 U. S. 33, in which a section (5440), defining 420 OCTOBER TERM, 1899. Opinion of the Court. and punishing conspiracies to defraud generally, was held not to be restricted by the prior act of March 2, 1867, from which the section was taken, which was limited to conspiracies arising under the revenue laws. The question was again elaborately considered in the case of United States n. Bowen, 100 IT. S. 508, in which it is broadly stated that “ when the meaning is plain the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress.” Rev. Stat, section 4820 enacted that “ the fact that one to whom a pension has been granted for wounds or disabilities received in the military service has not contributed to the funds of the Soldiers’ Home, shall not preclude him from admission thereto. But all such pensioners shall surrender their pensions to the Soldiers’ Home during the time they remain there, and voluntarily receive its benefits.” Bowen was the recipient of an invalid pension, but he had contributed to the funds of the Soldiers’ Home, and the question was whether that fact withdrew him from the clause which requires pensioners to surrender their pensions to the home while inmates of it. The section was held to be limited to those (“ such ”) who had not contributed to the funds of the home, although by the act from which the section was taken, all invalid pensioners who accepted the benefit of the home were bound to surrender their pensions to its use while there. The language above quoted was repeated in Cambria Iron Co. v. Ashburn, 118 U. S. 54, the court again holding that, where the meaning of the Revised Statutes is plain, it cannot recur to the original statutes to see if errors were committed in revising them. To the same effect are Deffeback v. Hawke, 115 IT. S. 392; United States v. Averill, 130 U. S. 335; United States n. Lacher, 134 IT. S. 624, in which the court said that if there were an ambiguity in a section of the Revised Statutes, resort might be had to the original act from which the section was taken, to ascertain what, if any, change of phraseology there is, and whether such change should be construed as HAMILTON v. RATHBONE. 421 . Opinion of the Court. changing the law. See also Bate Refrigerating Co. v. Sulz-lerger, 157 U. S. 1; United States v. Goldenberg, 168 U. S. 95. Indeed, the cases are so numerous in this court to the effect that the province of construction lies wholly within the domain of ambiguity, that an extended review of them is quite unnecessary. The whole doctrine applicable to the subject may be summed up in the single observation that prior acts may be resorted to, to solve, but not to create an ambiguity. If section 728 were an original act, there would be no room for construction. It is only by calling in the aid of a prior act that it becomes possible to throw a doubt upon its proper interpretation. The word “property,” used in section 728, includes every right and interest which a person has in lands and chattels, and is broad enough to include everything which one person can own and transfer to another. The main object of the revision was to incorporate all the existing statutes in a single volume, that a person desiring to know the written law upon any subject might learn it by an examination of that volume, without the necessity of referring to prior statutes upon the subject. If the language of the revision be plain upon its face, the person examining it ought to be able to rely upon it. If it be but another volume added to the prior Statutes at Large, the main object of the revision is lost, and no one can be certain of the law without an examination of all previous statutes upon the same subject. As bearing upon the proper construction of this section we are also referred to an act approved June 1, 1896, c. 303, 29 Stat. 193, entitled “ An act to amend the laws of the District of Columbia as to married women, to make parents the natural guardians of their minor children, and for other purposes.” The sections of the act, which are pertinent here, are as follows: “ That the property, real and personal, which any woman in the District of Columbia may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and real, personal or mixed property which shall come to her by descent, devise, purchase or bequest, or the gift of any person, shall be and remain her sole and separate property, notwith- 422 OCTOBER TERM, 1899. Opinion of the Court. standing her marriage, and shall not be subject to the disposal of her husband or liable for his debts, except that such property as shall come to her by gift of her husband shall be subject to, and be liable for, the debts of the husband existing at the time of the gift. “ Seo. 2. That a married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property, and enter into any contract in reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property, and she may, by a promise in writing, expressly make her separate estate liable for necessaries purchased by her or furnished at her request for the family. * * * * * “ Seo. 11. That sections seven hundred and twenty-seven, seven hundred and twenty-nine, and seven hundred and thirty of the Revised Statutes of the United States for the District of Columbia, be and the same are hereby repealed.” It will be observed that, by the first section, all the property of a married woman owned at the time of marriage, or which shall afterwards come to her in any manner or from any person, shall remain her sole and separate property, notwithstanding her marriage, thus enlarging the operation of section 727, which limited it to such as she had not acquired by gift or conveyance from her husband. By the second section power is given to her to bargain, sell and convey her property as if she were a married man, but nothing is said about her power to bequeath it. It will be noticed, however, that while sections 727, 729 and 730 of the Revised Statutes are repealed, no repeal of section 728 is made. Evidently Congress understood section 728 to give to a married woman the power to devise and bequeath her property without limitation, and therefore allowed it to stand. If full effect be not given in this case to section 728 as including all the property of a married woman, one of two results must follow: Either that the law of 1896 changed the construction to be given to section 728, although it did not repeal or modify it; or the construction of that section, contended for by the plaintiff, must pre- la ABRA SILVER MINING CO. v. UNITED STATES. 423 Syllabus. vail, and married women are still under the disabilities of the act of 1869, though that act and sections 727, 729 and 730 which reproduced it are expressly repealed. The more reasonable construction is that Congress understood section 728 to give to a married woman the power to devise and bequeath her property without limitation, and therefore allowed it to stand. Our conclusion is that the property in question passed under the will of Mrs. Elkin. The view we have taken of this subject renders it unnecessary to consider the other questions in the case. The judgment of the Court of Appeals must he reversed, and the case remanded to that court with instructions to reverse the judgment of the Supreme Court of the District of Columbia, and to remand the case to that court with directions to grant a new trial. LA ABRA SILVER MINING COMPANY v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 29. Argued February 20, 21, 23, 1899. —Decided December 11,1899. The Commissioners appointed under the treaty between the United States and Mexico concluded July 4, 1868, and proclaimed February 1, 1869, (15 Stat. 679), having differed in opinion as to the allowance of the claim of the La Abra Silver Mining Company, a New York corporation, against Mexico, the Umpire decided for that company and allowed its claim, amounting, principal and interest, to the sum of $683,041.32. Mexico met some of the instalments of the award and then laid before the United States certain newly discovered evidence which, it contended, showed that the entire claim of the La Abra Company was fictitious and fraudulent. The Secretary of State thereafter withheld the remaining instalments paid by Mexico, and upon examining the new evidence reported to the President that in his judgment the honor of the United States was concerned to inquire whether in submitting the La Abra claim to the Commission its confidence had not been seriously abused, and recommended that Congress exert its plenary authority in respect 424 OCTOBER TERM, 1899. Syllabus. of the disposition of the balance of the funds received from Mexico and remaining in the hands of the United States. Finally, Congress passed the act of December 28, 1892, (27 Stat. 409, c. 14,) by which the Attorney General was directed to bring suit in the name of the United States in the Court of Claims against the La Abra Company and all persons asserting any interest in the award of the Commission to determine whether that award was obtained, as to the whole sum included therein or as to any part thereof, by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the company, or its agents, attorneys or assigns, and if so determined, to bar and foreclose all claim in law or equity on the part of the company, its legal representatives or assigns to the money or any such part thereof received from the Republic of Mexico for or on account of the award. By that act full jurisdiction was conferred on the Court of Claims, with right of appeal to this court, to determine such suit, to make all proper interlocutory and final decrees therein, and to enforce the same by injunction or other final process. The act further authorized the return to Mexico of any moneys paid by it on the award and remaining in the custody of the United States, if the issue of fraud was determined adversely to the company. If the decision was favorable to the company, it was made the duty of the Secretary of State to proceed with the distribution of the funds in his hands. The act of 1892 was presented to the President on December 20. Two days thereafter Congress took a recess until Janu-. ary 4, 1893. The President signed the bill on December 28, 1892. Hdd: (1) That the act of 1892 was not invalid by reason of its having been signed during a recess of Congress. Whether the President can sign a bill after the final adjournment of Congress for the session was not decided; (2) The suit brought by the Attorney General involved rights capable of judicial determination and was a “ case” within the meaning of the clause of the Constitution extending the judicial power of the United States to all cases in law and equity arising under that instrument, the laws of the United States and the treaties made by it or under its authority. The act did not in any wise trench upon the constitutional functions of the President. Nor was it simply ancillary or advisory to him. Whatever decree was rendered by the Court of Claims was, unless reversed, binding and conclusive upon the United States and the defendants; (3) The act was not liable to the objection that it was inconsistent with the principles underlying international arbitration. On the contrary, such legislation is an assurance in the most solemn and binding form that the Government of this country will exert all the power it possesses to enforce good faith upon the part of citizens who, asserting that they have been wronged by the authorities of another country, seek the intervention of their Government to obtain redress; (4) This court was entitled to look at all the evidence in the cause on la ABRA SILVER MINING CO. v. UNITED STATES. 425 Statement of the Case. the issue as to fraud, because the act did not contemplate a special finding by the Court of Claims of the ultimate facts established by the evidence; (5) The question stated in the act of 1892 — whether the award in question “ was obtained as to the whole sum included therein, or as to any part thereof, by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the said La Abra Silver Mining Company, or its agents, attorneys or assigns ” — is answered in the affirmative as to the whole sum included in the award. The questions involved in this case arose from a claim made by the La Abra Silver Mining Company, a New York corporation, for damages alleged to have been sustained in consequence of certain acts and omissions of duty upon the part of official representatives of the Republic of Mexico. The claim was originally the subject of investigation by a Commission organized pursuant to a Convention between the United States of America and the Republic of Mexico concluded July 4, 1868, and proclaimed February 1, 1869. 15 Stat. 679. An award was made by the Commission in relation to this claim, but it has been executed only in part — its full execution having been suspended by legislation in conformity with which the present suit was instituted to ascertain whether the award had been obtained by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the La Abra Company, its agents, attorneys or assigns. Act of December 28, 1892, c. 14, 27 Stat. 409. It will conduce to a clear understanding of the questions to be determined if we state fully the circumstances that led to the organization of the Commission, and show how it came about that a court established by this Government took cognizance of a moneyed demand made by an American corporation against a foreign government. By the above Convention of July 4, 1868, it was provided that all claims on the part of corporations, companies or private individuals, citizens of the United States or of the Republic of Mexico, arising from injuries to their persons or property committed by the authorities of the respective Gov- 426 OCTOBER TERM, 1899. Statement of the Case. ernments and presented to either Government for its interposition with the other since the treaty of Guadalupe Hidalgo of February 2, 1848, and which remained unsettled or did not arise out of any transaction prior to that date, as well as any other claims presented within the time prescribed in the Convention, should be referred to two Commissioners — one to be appointed by the President of the United States by and with the advice and consent of the Senate and the other by the President of the Mexican Republic. The Commissioners were conjointly to investigate and decide the claims presented to their notice in such order and manner as they thought proper, but “ upon such evidence or information only ” as should “ be furnished by or on behalf of their respective Governments.” Where they failed to agree in opinion upon any individual claim, they were to call to their assistance an Umpire, who was to decide upon it finally and without appeal. It was competent for each Government to name one person to attend the Commissioners as its agent, to present and support claims on its behalf and to represent it generally in all matters connected with the investigation. When every case presented had been decided by the Commissioners or the Umpire, the total amount awarded in favor of the citizens of one Government was to be deducted from that awarded to the citizens of the other Government, and the balance to the amount of three hundred thousand dollars was to be paid to the Government in favor of whose citizens the greater sum had been awarded, without interest or any other deduction than that specified in the Convention. The residue was to be paid in annual instalments not to exceed three hundred thousand dollars in any one year until the whole amount had been paid. The contracting parties agreed to consider the result of the proceedings of the Commission as a full, perfect and final settlement of every claim upon either Government arising out of any transaction of a date prior to the ratification of the Convention and to give full effect to the decision of the Commission or the Umpire without objection, evasion or delay; and they further engaged that every such claim whether or not la ABRA SILVER MINING CO. v. UNITED STATES. 427 Statement of the Case. presented to the notice of, made, preferred or laid before the Commission should from and after the conclusion of its proceedings be considered and treated as finally settled, barred and thereafter inadmissible. The Commission was organized in the 'city of Washington and held its first meeting on the 31st day of July, 1869, Mr. William H. Wadsworth and Senor Don Miguel Maria de Zamacona being the Commissioners respectively, and Mr. J. Hubley Ashton and Mr. Caleb Cushing the agents respectively, on behalf of the United States and Mexico. Dr. Francis Lieber the first Umpire having died, he was succeeded by Sir Edward Thornton, who at that time was the British Minister accredited to the Government of the United States at Washington. On the 23d day of February, 1870, Secretary Fish issued a circular referring to the Convention of 1868 and stating that the Department of State deemed it advisable to refer to the Joint Commission all claims of corporations and citizens of this country without special examinations of their merits. He took care to say that the Government thereby expressed no opinion either as to the merits of the claims presented or as to the principles of law to be invoked in their support. The responsibility of deciding questions of fact and law, he observed, rested with the Commissioners. On the 17th day of March, 1870, the La Abra Company gave written notice to the Secretary of State that it claimed from Mexico $1,930,000 “for damages and losses suffered by it in consequence of the violence and outrages committed by the authorities of Mexico against the rights of said company in 1867 and 1868.” It asked for the interposition of the Government of the United States with Mexico for the payment of that demand and requested that its claim and proofs thereafter to be produced be referred to the Commission for settlement. This notice was transmitted by the Secretary to the Commission. Subsequently, June 14, 1870, the Company filed with the Commission a memorial of its claim stating the amount thereof to be $3,000,030. Before the case was finally heard the claim was increased to $3,962,000. 428 OCTOBER TERM, 1899. Statement of the Case. The period within which the Commission was to conclude its labors was from time to time extended by the two Governments. Of the claims presented by the United States there was allowed the sum of $4,125,622.30, while of the claims presented by Mexico the sum of $150,498.41 was allowed. In respect of the claim of the La Abra Company the Commissioners differed in opinion and the case went to the Umpire for consideration. The award of the Umpire, which was made December 27, 1875, embraced the following items as representing the damages sustained by the La Abra Company and to be paid by the Republic of Mexico: (1) On account of subscriptions and sales of stock, $235,000; (2) Money lent and advanced, $64,291.06; (3) Rent, expenses, salaries, law expenses, $42,500; (4) Amount derived from reduced ores, $17,000; (5) Ore extracted from the mines and deposited at the mills, $100,000; in all, $458,791.06. On $358,791.06, the aggregate of the first four items, the Umpire allowed interest from March 20, 1868, at six per cent, and upon $100,000, the fifth item, interest was allowed from March 20, 1869. The total amount of principal and interest allowed was $683,041.32. An application was made to the Umpire by the Government of Mexico for a rehearing of the case, but a rehearing was denied. Subsequently, the Mexican Government without at all dis puting its obligation under the Convention of 1868 to comply with the award placed in the possession of the Secretary of State of the United States certain books, papers and documents which it alleged had been then recently discovered and would show that the claim of the La Abra Company was not only fictitious and fraudulent but had been supported by false and perjured testimony. At that time a large part of the sum awarded to the Company had been paid by Mexico and was in the hands of the Secretary of State. The distribution of the amount received had been delayed by the Secretary acting under the orders of the President to await legislation deemed necessary in order to make good to the fund the amount with which it was chargeable and O o LA ABRA SILVER MINING- CO. v. UNITED STATES. 429 Statement of the Case. also because as stated by the Secretary it was desirable that the form and manner of the reservation from the instalment in hand of the expenses of the Government should first be settled. These difficulties were met by the passage of the act of June 18, 1878, c. 262, 20 Stat. 144. By the first section of that act the Secretary of State was authorized and required to receive all moneys paid by the Mexican Republic under and in pursuance of the Conventions of July 4, 1868, and April 29,1876, and whenever and as often as any instalments should be paid by the Mexican Republic, to distribute the moneys received in ratable proportions among the corporations, companies or private individuals respectively in whose favor awards were made, or to their legal representatives or assigns except as in that act otherwise limited or provided, according to the proportion which the respective awards should bear “ to the whole amount of such moneys then held by him, and to pay the same, without other charge or deduction than is hereinafter provided, to the parties respectively entitled thereto.” By the second section it was provided that “out of any moneys in the Treasury not otherwise appropriated a sufficient sum is hereby appropriated to enable the Secretary of the Treasury to pay to the Secretary of State of the United States, in gold or its equivalent, the equivalent of fifty thousand five hundred and twenty-eight dollars and fifty-seven cents in Mexican gold dollars and ten thousand five hundred and fifty-nine dollars and sixty-seven cents in American gold coin, and eighty-nine thousand four hundred and ten dollars and seventeen cents in United States currency, said sums being the aggregate in said currencies respectively of the awards made under the said Convention of July 4, 1868, in favor of citizens of the Mexican Republic against the United States, and having been deducted from the amount awarded in favor of the citizens of the United States, and payable by Mexico, in'accordance with article four of the said treaty; and that said sums, when paid to the Secretary of State, as aforesaid, shall be regarded as part of the awards made under the said treaty, to be paid or distributed as herein provided.” 430 OCTOBER TERM, 1899. Statement of the Case. The third section made provision for meeting out of the moneys received by the Secretary the expenses of the Commission including contingent expenses paid by the United States as ascertained and determined in pursuance of the provisions of the treaty. The fourth section provided that in the payment of money in virtue of the act to any corporation, company or private individual, the Secretary of State should first deduct and retain or make reservation of such sums, if any, as might be due to the United States from any corporation, company or private individual in whose favor awards were made under the Convention. The fifth section of the act was in these words: “And whereas the Government of Mexico has called the attention of the Government of the United States to the claims hereinafter named with a view to a rehearing, therefore be it enacted, that the President of the United States be, and he is hereby, requested to investigate any charges of fraud presented by the Mexican Government as to the cases hereinafter named, and if he shall be of the opinion that the honor of the United States, the principles of public law, or considerations of justice and equity require that the awards in the cases of Benjamin Weil and La Abra Silver Mining Company, or either of them, should be opened and the cases retried, it shall be lawful for him to withhold payment of said awards, or either of them, until such case or cases shall be retried and decided in such manner as the Governments of the United States and Mexico may agree, or until Congress shall otherwise direct. And in case of such retrial and decision, any moneys paid or to be paid by the Republic of Mexico in respect of said awards respectively shall be held to abide the event, and shall be disposed of accordingly; and the said present awards shall be set aside, modified or affirmed, as may be determined on such retrial: Provided, That nothing herein shall be construed as an expression of any opinion of Congress in respect to the character of said claims, or either of them.” 20 Stat. 144, c. 262. Pursuant to the direction of President Hayes the investi- LA ABRA SILVER MINING CO. v. UNITED STATES. 431 Statement of the Case. gation required by the fifth section of the act of June 28,1878, was made by the Secretary of State. Having reviewed all the proceedings of the Commission, including the testimony originally submitted to it, the supplemental evidence furnished in support of the allegations of fraud as to the Weil and La Abra claims, and the action theretofore taken by the Department of State, Secretary Evarts referred to the contention that in deciding against opening those awards diplomatically and reexamining them by a new international commission, the whole discretion vested in the Executive as a part of the treaty-making power and under the special provisions of the act of Congress was exhausted, and that the payments in the cases referred to should be no longer suspended. He said that a solicitous attention to the rights of the claimants and the duty of the Executive in the premises had confirmed him in the opinion that Congress should determine whether “the honor of the United States” required any further investigation in these cases or either of them, and provide the efficient means of such investigation if thought necessary. After stating the considerations which led him to that conclusion, the Secretary proceeded: “While these considerations led to the conclusion that these cases ought not to be made the subject of a new international commission, I was yet of opinion that ‘the honor of the United States’ was concerned to inquire whether in these cases, submitted by this Government to the Commission, its confidence had been seriously abused, and the Government of Mexico, acting in good faith in accepting a friendly arbitration, had been subjected to heavy pecuniary imposition by fraud and perjury in the maintenance of these claims, or either of them, before the Commission. In furtherance, however, of this opinion, it seemed to me apparent that the Executive discretion under the act of Congress could extend no further than to withhold further payments on the awards until Congress should, by its plenary authority, decide whether such an investigation should be made, and should provide an adequate procedure for its conduct, arid prescribe the consequences which should follow 432 OCTOBER TERM, 1899. Statement of the Case. from its results. Unless Congress should now make this disposition of the matter, and furnish thereby definite instructions to the Department to reserve further payments upon these awards till the conclusion of such investigation, and to take such further order with the same thereafter as Congress might direct, it would appear to be the duty of the Executive to accept these awards, as no longer open to reconsideration, and proceed in the payment of the same pro rata with all other awards under the Convention.” Senate Ex. Doc. No. 150, 49th Cong. 2d Sess. The suggestions of the Secretary having been approved by the President, the first, second and third instalments of the award received from Mexico on account of the claim of the La Abra Company, amounting to $138,565.52, were paid to the representatives of that Company. Payments were subsequently made out of moneys received from Mexico, amounting to $103,117.54, leaving in the possession of the United States on account of the award $403,030.08. After Mr. Arthur became President further distribution of the money received was suspended because of the negotiation of a treaty between the United States and Mexico for a reexamination of the Weil and La Abra cases. This treaty was signed on the 13th day of July, 1882, and was submitted to the Senate for its approval, but after some delay it was rejected by that body. While that treaty was before the Senate, Key, as assignee of part of the Weil claim and the La Abra Company filed separate petitions in the Supreme Court of the District of Columbia for a mandamus upon the Secretary of State compelling him to pay to the petitioners their distributive shares of the sums paid by Mexico in accordance with the terms of the Convention of July 4,1868. In Key’s case the writ asked for was awarded, while in the La Abra case the petition was dismissed. The cases having been brought to this court, the judgment in the Key case was reversed with direction to dismiss the petition and the judgment in the La Abra case was affirmed. Frelinghuysen v. Fey, 110 U. S. 63. Chief Justice Waite, delivering the judgment of this court, LA ABRA SILVER MINING CO. v. UNITED STATES. 433 Statement of the Case. said: “ No nation treats with a citizen of another nation except through his government. The treaty, when made, represents a compact between the governments, and each government holds the other responsible for everything done by their respective citizens under it. The citizens of the United States having claims against Mexico were not parties to this convention. They induced the United States to assume the responsibility of seeking redress for injuries they claimed to have sustained by the conduct of Mexico, and as a means of obtaining such redress the convention was entered into, by which not only claims of citizens of the United States against Mexico were to be adjusted and paid, but those of citizens of Mexico against the United States as well. By the terms of the compact the individual claimants could not themselves submit their claims and proofs to the Commission to be passed upon. Only such claims as were presented to the Governments respectively could be ‘ referred ’ to the Commission, and the Commissioners were not allowed to investigate or decide on any evidence or information except such as was furnished by or on behalf of the Governments. After all the decisions were made and the business of the Commission concluded, the total amount awarded to the citizens of one country was to be deducted from the amount awarded to the citizens of the other, and the balance only paid in money by the government in favor of whose citizens the smaller amount was awarded, and this payment was to be made not to the citizens, but to their government. Thus, while the claims of the individual citizens were to be considered by the Commission in determining amounts, the whole purpose of the Convention was to ascertain how much was due from one government to the other on account of the demands of their respective citizens. As between the United States and Mexico, the awards are final and conclusive until set aside by agreement between the two governments or otherwise. Mexico cannot, under the terms of the treaty, refuse to make the payments at the times agreed on if required by the United States. This she does not now seek to do. Her payments have all been made promptly as they fell due, as far as these records show. vol. clxxv—28 434 OCTOBER TERM, 1899. Statement of the Case. “As to the right of the United States to treat with Mexico for a retrial, we entertain no doubt. Each Government, when it entered into the compact under which the awards were made, relied on the honor and good faith of the other for protection as far as possible against frauds and impositions by the individual claimants. It was for this reason that all claims were excluded from the consideration of the Commission except such as should be referred by the several Governments, and no evidence in support of or against a claim was to be submitted except through or by the Governments. The presentation by a citizen of a fraudulent claim or false testimony for reference to the Commission was an imposition on his own Government, and if that Government afterwards discovered that it had in this way been made an instrument of wrong towards a friendly power, it would be not only its right but its duty to repudiate the act and make reparation as far as possible for the consequences of its neglect if any there had been. International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own government against another for the redress of his personal grievances must necessarily subject himself and his claim to these requirements of international comity. None of the cases cited by counsel are in opposition to this. They all relate to the disposition to be made of the proceeds of international awards after they have passed beyond the reach of the governments and into the hands of private parties. The language of the opinions must be construed in connection with this fact.” Frelinghuysen v. Key, 110 U. S. 63, 71-73. Referring to the act of 1878, and observing that it did not LA ABRA SILVER MINING CO. v. UNITED STATES. 435 Statement of the Case. undertake to set any new limits on the powers of the Executive, the court further said : “ From the beginning to the end it is, in form even, only a request from Congress to the Executive. This is far from making the President, for the time being, a quasi judicial tribunal to hear Mexico and the implicated claimants and determine once for all as between them whether the charges which Mexico makes have been judicially established. In our opinion it would have been just as competent for President Hayes to have instituted the same inquiry without this request as with it, and his action with the statute in force is no more binding on his successor than it would have been without. But his action as reported by him to Congress is not at all inconsistent with what has since been done by President Arthur. He was of opinion that the disputed cases should be further investigated by the United States to ascertain whether this Government has been made the means of enforcing against a friendly power claims of our citizens based upon or exaggerated by fraud, and, by implication at least, he asked Congress to provide him the means 1 of instituting and furnishing methods of investigation which can coerce the production of evidence or compel the examination of parties or witnesses.’ He did report officially that he had grave doubt as to the substantial integrity of the Weil claim and the sincerity of the evidence as to the measure of damages insisted upon and accorded in the case of La Abra Company. The report of Mr. Evarts cannot be read without leaving the conviction that if the means had been afforded, the inquiries which Congress asked for would have been further prosecuted. The concluding paragraph of the report is nothing more than a notification by the President that unless the means are provided, he will consider that the wishes of Congress have been met, and that he will act on such evidence as he has been able to obtain without the help he wants. From the statements in the answer of Secretary Frelinghuysen in the Key case, it appears that further evidence has been found, and that President Arthur, upon this and what was before President Hayes, has become satisfied that the contested decisions should be opened and the claims retried. Consequently, the Presi- 436 OCTOBER TERM, 1899. Statement of the Case. dent, believing that the honor of the United States demands it, has negotiated a new treaty providing for such a reexamination of the claims, and submitted it to the Senate for ratification. Under these circumstances it is, in our opinion, clearly within the discretion of the President to withhold all further payments to the relators until the diplomatic negotiations between the two governments on the subject are finally concluded. That discretion of the Executive Department of the government cannot be controlled by the Judiciary. The United States, when they assumed the responsibility of presenting the claims of their citizens to Mexico for payment, entered into no contract obligations with the claimants to assume their frauds and to collect on their account all that, by their imposition of false testimony, might be given in the awards of the Commission. As between the United States and the claimants, the honesty of the claims is always open to inquiry for the purposes of fair dealing with the government against which, through the United States, a claim has been made.” Frelinghuysen v. Key^ 110 U. S. 63, 74, 76. After the rejection of the treaty negotiated in 1882, President Cleveland in 1886 sent a message to the Senate calling attention to the act of 1878 and asking consideration of the status of the Weil and La Abra claims. By that message Congress was in substance notified that if it did not take some action in the matter the President would proceed to distribute the funds received from Mexico under the award and remaining in the hands of the United States. The matter having been referred to the Senate Committee on Foreign Relations it recommended the passage of a bill providing for a reinvestigation of those claims. The Committee’s report on the subject thus concluded : “ This brief resume of the correspondence between the two Governments shows that Mexico, while observing, in good faith, all her obligations under the Convention, has earnestly and constantly urged upon the United States that these claims wTere fraudulent. This appeal to the spirit of justice cannot be ignored but should be met by a frank and open examination by our own courts of the facts presented by Mexico. These claimants have no vested rights LA ABRA SILVER MINING CO. v. UNITED STATES. 437 Statement of the Case. growing out of these claims which entitle them to come between Mexico and the United States, and to demand the payment of any part of these awards that are the outgrowth of fraud and perjury.” Senate Doc. Report No. 2705, 50th Cong. 2d Sess. No action having been taken by Congress, the subject was again mentioned in a message sent by the President to the. Senate on the 5th of March, 1888, in response to resolutions of that body. The message was accompanied by a report from Mr. Bayard, Secretary of State, in which reference was made to the action of his predecessor. He said: “ It is fair to assume that the rejection by the Senate of the treaty signed by Mr. Frelinghuysen, for an international rehearing of the awards, was in no sense an expression of opinion adverse to their investigation, which Mr. Evarts had recommended. It is rather to be regarded as an approval of the opinion which he also expressed, that the investigation should, under the circumstances, be made by this Government for itself, as a matter affecting solely its own honor. It is a remarkable fact that whenever, since the distribution of the Mexican fund was commenced, the deliberate judgment of the official authorized by Congress to make such distribution has been recorded upon the two awards in question, it has uniformly been to the effect that the evidences that the United States, in presenting the claims, had been made the victim of fraudulent imposition were of such a character as to require investigation by a competent tribunal, possessing appropriate powers for that purpose. . . . The sole question now presented for the decision of this Government is whether the United States will enforce an award upon which the gravest doubts have been cast by its own officers in opinions rendered under express legislative direction, until some competent investigation shall have shown such doubts to be unfounded, or until that branch of the Government competent to provide for such investigation shall have decided that there is no ground therefor.” Senate Doc. Report No. 2705, 50th Cong. 2d Sess. The Secretary recommended that Congress take action providing expressly for the reference of the Weil and La Abra claims to the Court of 438 OCTOBER TERM, 1899. Statement of the Case. Claims or such other court as was deemed proper in order that a competent investigation of the charges of fraud might be made. Pending the consideration of this matter in the Senate the Committee on Foreign Relations examined the evidence alleged to have been discovered by Mexico after the award in question, especially certain letters and copies of letters of the officers and agents of the La Abra Company contained in a letter-impression book that was not before the Commission. The Committee in their report to the Senate on March 1, 1889, among other things said: “ The main allegation in the petition of the La Abra Company presented to the Mixed Commission, to wit, that the Company was dispossessed of its property by the forcible interference of the Mexican authorities, is disproved and shown to have been wholly false, and this mainly by the correspondence of the Company’s own officers and agents; and it appears by the testimony taken by the Committee that the abandonment of the property and the failure of the Company were wholly due to the poverty of the mines and the consequent financial embarrassment of the Company.” After reviewing, in the light of precedent and upon principle, the question of the power of Congress to order a reexamination of the La Abra claim, the Committee concluded its report to the Senate: “ It thus appears that the power of Congress to reopen the La Abra award, and to direct a suit to be brought to judicially determine whether or not it was procured by fraud, has been affirmed by successive Secretaries of State, assumed by Congress in the passage of the act of June 18, 1878, expressly declared by committees of both houses of Congress, and substantially held to exist by the highest judicial tribunal of this Government.” Senate Doc. Report No. 2705, 50th Cong. 2d Sess. Reference should here be made to United States ex rd. Boynton v. Blaine, 139 U. S. 306, 323-326, as announcing principles that affect certain questions arising in the present litigation. That case was commenced on the 23d day of November, 1889, in the Supreme Court of the District of Columbia. Boynton, the relator, as assignee of Weil, sought to la ABRA SILVER MINING CO. v. UNITED STATES. 439 Statement of the Case. compel the Secretary of State to pay certain moneys received under the award made pursuant to the Convention of 1868. The mandamus asked for was refused and the petition of Boynton was dismissed. That judgment was affirmed by this court. The present Chief Justice, delivering the unanimous judgment of the court, declared its adherence to the principles announced in Frelinghuysen v. Key above cited and among other things said: “ As between nations, the proprietary right in respect to those things belonging to private individuals or bodies corporate within a nation’s territorial limits is absolute, and the rights of Weil cannot be regarded as distinct from those of his Government. The Government assumed the responsibility of presenting his claim, and made it its own in seeking redress in respect to it. Under this convention it was the balance that was to be paid, after deducting from what was found in favor of one Government that which was found in favor of the other. So that the moneys paid in liquidation of that balance belonged to the United States, to be increased by appropriation to the extent of the amounts allowed Mexico, and the aggregate to be distributed to the claimants as might be provided.” Again: “ Congress in furnishing the auxiliary legislation needed to carry the results of the convention under consideration into effect, requested the President to so far investigate certain charges of fraud as to determine whether a retrial ought to be had. This inquiry might have resulted in reopening the awards as between the two nations, or in such reexamination in a domestic forum as would demonstrate whether the honor of the United States required a different disposition of the particular amounts in question. The validity and conclusiveness of the awards remained unimpugned so long as they were permitted to stand, and the principle of res judicata could not be invoked against the United States by individual claimants while the controversy raised as to them remained in fieri. In Frelinghuysen v. Key, while conceding the essential value of international arbitration to be dependent upon the certainty and finality of the decision, the court adjudged that this Government need not therefore close its doors against an investigation into the question whether its 440 OCTOBER TERM, 1899. Statement of the Case. influence has been lent in favor of a fraudulent claim. It was held that no applicable rule was so rigid as not to be sufficiently flexible to do justice, and that the extent and character of any obligation to individuals, growing out of a treaty, an award and the receipt of money thereon, were necessarily subject to such modification as circumstances might require. So long as the political branch of the Government had not lost its control over the subject-matter by final action, the claimant was not in a position, as between himself and his Government, to insist on the conclusiveness of the award as to him. And while it is true that for the disposition of the case of Frelinghuysen v. Key it was sufficient that it appeared that diplomatic negotiations were pending which, as the court demonstrated, the act of 1878 in no manner circumscribed, it does not follow that the political department of the Government lost its control because those negotiations failed. On the contrary, that control was expressly reserved, for it was made the duty of the President, if of opinion, that the cases named should be retried, to withhold payment until such retrial could be had in an international tribunal, if the two Governments so agreed, or in a domestic tribunal if Congress so directed, and, at all events, until Congress should otherwise direct. The fact that a difference of views as to whether a retrial should be international or domestic may have arisen and led to delay, or that such difference may have existed on the merits, does not affect the conclusion. The inaction by Congress is not equivalent to a direction by Congress. The political department has not parted with its power over the matter, and the intervention of the judicial department cannot now be invoked.” This brings us in the orderly statement of the history of this dispute to the act of December 28, 1892, c. 14, 27 Stat. 409, amending and enlarging the above act of June 18, 1878. That statute recited that the Secretary of State, after investigating the charge of fraud presented by the Mexican Government as to the case of the La Abra Silver Mining Company, had reported that the honor of the United States required that case to be further investigated by the United States to ascer- la ABRA SILVER MINING CO. v. UNITED STATES. 441 Statement of the Case. tain whether this Government had enforced against a friendly-power claims of its citizens based upon or exaggerated by fraud, but that the executive branch of the Government “ was not furnished -with the means of instituting and pursuing methods of investigation which could coerce the production of evidence or compel the examination of parties and witnesses;” that “the authority for such an investigation must proceed from Congress;” and that the President of the United States had transmitted to Congress the recommendation of the Secretary of State that the case be referred to the Court of Claims, or such other court as might be deemed proper, in order that the charge of fraud made in relation to this claim might be fully investigated. It was therefore enacted : “ That in further execution of the purpose of said act, the Attorney General of the United States be, and he is hereby, authorized and directed to bring a suit or suits in the name of the United States in the Court of Claims against La Abra Silver Mining Company, its successors and assigns, and all persons making any claim to the award or any part thereof in this act mentioned, to determine whether the award made by the United States and Mexican Mixed Commission in respect to the claim of the said La Abra Silver Mining Company was obtained, as to the whole sum included therein, or as to any part thereof, by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the said La Abra Silver Mining Company, or its agents, attorneys or assigns; and, in case it be so determined, to bar and foreclose all claim in law or equity on the part of said La Abra Silver Mining Company, its legal representatives or assigns, to the money, or any such part thereof, received from the Republic of Mexico for or on account of such award; and any defendant to such suit who cannot be found in the District of Columbia shall be notified and required to appear in such suit by publication as the court may direct, in accordance with law, as applicable to cases in equity. “ § 2. That full jurisdiction is hereby conferred on the Court of Claims to hear and determine such suit and to make all interlocutory and final decrees therein, as the evidence may 442 OCTOBER TERM, 1899. Statement of the Case. warrant, according to the principles of equity and justice, and to enforce the same by injunction or any proper final process, and in all respects to proceed in said cause according to law and the rules of said court, so far as the same are applicable. And the Secretary of State shall certify to the said court copies of all proofs admitted by the said Mixed Commission on the original trial of said claim, and the said court shall receive and consider the same in connection with such competent evidence as may be offered by either party to said suit. “ § 3. That an appeal from any final decision in such cause to the Supreme Court of the United States may be taken by either party within ninety days from the rendition of such final decree, under the rules of practice which govern appeals from said court; and the Supreme Court of the United States is hereby authorized to take jurisdiction thereof and decide the same. “ § 4. That in case it shall be finally adjudged in said cause that the award made by said Mixed Commission, so far as it relates to the claim of La Abra Silver Mining Company, was obtained through fraud effectuated by means of false swearing, or other false and fraudulent practices of said Company or its assigns, or by their procurement, and that the said La Abra Silver Mining Company, its legal representatives or assigns, be barred and foreclosed of all claim to the money or any part thereof so paid by the Republic of Mexico for or on account of such award, the President of the United States is hereby authorized to return to said Government any money paid by the Government of Mexico on account of said award, remaining in the custody of the United States, that has not been heretofore distributed to said La Abra Mining Company or its successors and assigns, which such court shall decide that such persons are not entitled, in justice and equity, to receive out of said fund. “ § 5. That, during the pendency of said suit and until the same is decided, it shall not be lawful for the Secretary of State to make any further payments out of said fund, on account of said award, to La Abra Silver Mining Company, LA ABRA SILVER MINING CO. v. UNITED STATES. 443 Statement of the Case. or its legal representatives, attorneys or assigns; and in case it shall be finally adjudged in said cause in either the Court of Claims or in the Supreme Court of the United States that the award made by said Mixed Commission, so far as it relates to the claim of La Abra Silver Mining Company, or any definable and severable part thereof, was not obtained through fraud as aforesaid, then the Secretary of State shall proceed to distribute so much of the said award as shall be found not so obtained through fraud, or the proceeds thereof remaining for distribution, if any, to the persons entitled thereto.” 27 Stat. 409, c. 14. Pursuant to the provisions of that act the Attorney General brought the present suit in the Court of Claims. The defendants are the La Abra Company and numerous individuals who assert some interest in the award made in respect of its claim against Mexico. The relief asked by the United States is indicated by the following paragraph in the bill: “Your orator further shows, that by reason of the premises a controversy has arisen between your orator and the defendants hereinbefore named, the said defendants claiming that it is the duty of your orator to pay over to them the sums by them, the said defendants, claimed respectively from the proceeds of said award now in the possession of your orator, and your orator claiming that it is the right and duty of your orator to have the facts relating to said claim and award inquired of by your honorable court, and if it shall be adjudged by your honorable court that the said award was obtained through fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the said defendant La Abra Silver Mining Company, or its agents, attorneys or assigns, to return the proceeds of said award to the said Republic of Mexico; that the said defendants have made persistent demands upon the Department of State and upon the Congress of your orator for the payment to them of said moneys, and that some of the said defendants have brought suits in the courts of your orator to compel such payment, and that, unless restrained by the judgment and decree of this honorable court, the said defendants will continue to 444 OCTOBER TERM, 1899. Statement of the Case. harass and annoy your orator with such demands and suits. . . . And that the said defendants and each and every one of them may, by the decree of this honorable court, be forever restrained and enjoined from setting up any claim to any part of said award or of the moneys now, as aforesaid, in possession of your orator. And that the said award on the claim of the said defendant La Abra Silver Mining Company may, by the decree of this honorable court, be declared to have been wholly obtained by means of false swearing and other false and fraudulent practices on the part of said defendant company, its agents, attorneys and assigns. And that your orator may have such other and further relief as the nature of your orator’s case may require and as may be agreeable to equity and good conscience.” The La Abra Company and other defendants demurred to the bill on the following grounds: That by the Constitution and laws of the United States the subject-matter of this suit was within the final and exclusive control of the Executive Department of the Government of the United States and not within the jurisdiction of any judicial tribunal; That the questions whether the award of the Commission was obtained by fraud and whether the money received under it and remaining undistributed by the Secretary of State should be returned by the President of the United States could not properly be determined by any municipal court of either of the sovereign parties to the treaty of 1868, but were questions of a diplomatic or political nature determinable only by the Executive Department of the Government; That the United States had not such an interest in the matters and things alleged in the bill as entitled it to maintain this suit or to have the relief asked; That the Government of Mexico was the party pecuniarily interested in this suit, and that by failing to institute and prosecute suit against the alleged wrongdoers in the courts of the United States for the annulment of the award and the recovery of the moneys paid on account thereof, it had been guilty of laches and had forfeited all right to relief in equity; la ABRA SILVER MINING CO. v. UNITED STATES. 445 Statement of the Case. consequently, the United States was not entitled to demand such relief for the benefit of or in the interest of Mexico; That a mixed commission created and acting under and by virtue of such a treaty as that of July 4, 1868, between the United States and Mexico, was recognized by the law of nations and by the Constitution and laws of the United States and was in fact and law a court of exclusive and final jurisdiction, and its award could not be set aside, reopened or vacated by a municipal court of the United States, either in virtue of an act of Congress or otherwise, and that Congress could not grant a new trial in respect of matters so finally determined and concluded by international arbitration under such a treaty; but on the contrary, such an award could, on the part of the United States, be set aside, vacated or reopened only through its treaty-making power; and that the question presented by the bill, whether the award should be reopened or not on the grounds alleged, having been submitted to the treaty-making power and by it decided in the negative was res judicata ; That it appeared on the face of the bill that the question whether the award in favor of the La Abra Company was obtained in whole or part by fraud effectuated by means of false swearing or other corrupt and fraudulent practices was substantially the same question that was tried by the Commissioners, such fraud and fraudulent practices having been charged by the Mexican Agent and Commissioner at the trial; and that that question, on the disagreement of the two Commissioners in respect of the integrity of the witnesses and the credibility and weight of the evidence for and against the claim of the Company, was referred to the Umpire for decision, and having been decided by him was res judicata and could not be reexamined or redetermined by this court; That the act of Congress under which the suit was prosecuted was unconstitutional and inoperative on the further ground that it assumed to direct, control and bind the courts in determining the questions submitted for final adjudication to receive evidence and apply legal principles that were erroneous and wholly inadmissible according to law as administered 446 OCTOBER TERM, 1899. Statement of the Case. in the courts of the United States in like cases, and to prescribe to the court what weight and effect should be given to the evidence and how the court should reach the conclusion that the award was obtained in whole or in part through fraud; That inasmuch and because the questions presented by the bill were of a political and diplomatic nature and not justiciable or fit and proper to be considered and finally determined by a municipal court, Congress could not impose upon the Court of Claims or upon the Supreme Court of the United States or upon the judges thereof, the trial and determination of those questions; That the act of Congress in question was inoperative and void on the further ground that it was never approved by the President of the United States as required by law, the only alleged approval it ever received being on the 28th of December a.d. 1892, when Congress was not in session, both Houses of Congress having adjourned on the 22d of December a.d. 1892 to the 4th of January a.d. 1893; and, That the bill did not state facts sufficient to constitute a cause of action or to authorize the granting of any relief. The demurrer to the bill so far as it involved the jurisdiction of the Court of Claims and the charges of fraud was overruled, the opinion of the court being delivered by Judge Weldon. 29 C. Cl. 432, 484. The question whether the act of December 28, 1892, was so approved by the President as to become a law was determined in favor of the United States, upon the grounds stated in the opinion of the court previously delivered by Judge Nott, now Chief Justice of that court, in United States v. Weil, 29 C. Cl. 523. The case having been prepared on the merits, the Court of Claims upon final hearing found that the award made by the Commission on the claim of the La Abra Company “ was obtained as to the whole sum included therein by fraud effectuated by means of false swearing and other false and fraudulent practices on the part of said Company and its agents;” and it was adjudged that all claims in law and equity on the part of the Company, its legal representatives LA ABRA SILVER MINING CO. v. UNITED STATES. 447 Statement of the Case. and assigns, be forever barred and foreclosed in respect of the money received from the Republic of Mexico for or on account of such award. 32 C. Cl. 462, 520, 521. An elaborate opinion of the Court of Claims, delivered by Judge Weldon, states fully the grounds on which the decree was based. That opinion concludes: “ The court upon an examination of all the testimony, excluding such portions of it as in the opinion of the court are not competent, determines as a conclusion of fact that the La Abra Silver Mining Company did not abandon its mines in Mexico because of the interference of the people of Mexico and the public authorities of the Mexican Government, or either, but on the contrary that it abandoned its mines because they were unproductive and for the want of money to operate and work the same, and that the award made by the United States and the Mexican Mixed Commission in respect to the claim of the said La Abra Silver Mining Company was obtained as to the whole sum included therein by fraud effectuated by means of false swearing and other fraudulent practices upon the part of said company and its agents, and a decree will be entered barring and foreclosing all claim in law and equity on the part of said Company, or its agents, attorneys and assigns, to the money received from the Republic of Mexico for or on account of such award. Having decided that the Company was not compelled to abandon its mines because of the acts of the people of Mexico, unrestrained by the Mexican Government, and that it was not compelled to abandon the mines because of the unlawful interference of the Mexican authorities with the property and business of the Company, it is not necessary to consider the question of the value of the property of the Company at the time of the abandonment.” Chief Justice Nott dissented in part from the judgment. He was of opinion that the first three items in the award of the Umpire, above set forth, should stand, but that the fourth item was fraudulently exaggerated and should be reduced to $420.09, and the fifth, $100,000, rejected altogether as having been utterly overthrown by the evidence. 32 C. Cl. 521, 533. 448 OCTOBER TERM, 1899. Mr. Kennedy’s Argument for La Abra Company. From the judgment of the Court of Claims the present appeal was prosecuted. Mr. Jeremiah M. Wilson for the La Abra Silver Mining Company. Mr. William A. Maury, Special Assistant to the Attorney General, for the United States. Mr. Crammond Kennedy (upon whose brief were Mr. Wilson, Mr. John C. Fay and Mr. E. L. Renick) closed for the La Abra Company. His brief contained the following points, supported by the accompanying citations of cases. I. The Court of Claims has no jurisdiction over this matter, because it is not a “ case ” within the meaning of the Constitution, nor is it a “controversy” to which the United States is a party: citing 5 Wheat. App., Note 1, pp. 16 & 17; Cohens v. Virginia, 6 Wheat. 264; Osborn v. Bank of the United States, 9 Wheat. 738; Georgia v. Stanton, 6 Wall. 50; Cherokee Nation v. Georgia, 5 Pet. 1; Murray v. Hoboken Land & Improvement Co., 18 How. 272; Gordon v. United States, 117 U. S. 697; Chisholm v. Georgia, 2 Dall. 419; Smith n. Adams, 130 U. S. 167; Pennsylvania v. Wheeling Bridge Co., 13 How. 518; Curtner v. United States, 149. U. S. 662, and cases cited; Frelinghuysen n. Key, 110 U. S. 63. II. Neither the Court of Claims nor this court has jurisdiction of the bill, because it seeks to review and reverse the action heretofore taken by the President of the United States in a matter of international concern exclusively within his discretion and control: citing Frelinghuysen n. Key, supra', De Bode v. The Queen, 3 Clark’s H. L. Cas. 459; v. Suffolk Ins. Co., 13 Pet. 415; Milnor v. Metz, 16 Pet. 221; United States v. Diekelman, 92 U. S. 520; Boynton v. Blaine, 139 U. S. 306; Marbury v. Madison, 1 Cranch, 137; Jones v. United States, 137 U. S. 202; Kilbourn n. Thompson, 103 U. S. 168 ; Sinking Fund cases, 99 U. S. 700; Martin v. Mott, 12 Wheat. 19; Luther n. Borden, 7 How. 1; Murray v. Hoboken Land & Improvement Co., 18 How. 272; White n. Hart, LA ABRA SILVER MINING CO. v. UNITED STATES. 449 Mr. Kennedy’s Argument for La Abra Company. 13 Wall. 646; Phillips v. Payne, 92 U. S. 130; United States n. Lee, 106 U. S. 196; Underhill n. Van Cortlandt, 2 Johns. Ch. 339. III. Neither the Court of Claims nor this court has jurisdiction of this suit, because it requires a collateral inquiry to be made into the merits of an international award rendered by a tribunal of exclusive and final jurisdiction; citing Meade v. United States, 9 Wall. 691; Comegys v. Vasse, 1 Pet. 193; Michaels v. Post, 21 Wall. 398; Noble v. Union River Logging Co., 147 U. S. 165; Boynton v. Blaine, 139 U. S. 306; In re Sanborn, 148 U. S. 222. IV. The appellate jurisdiction of this court, if it exists,' involves and requires a review of the facts, citing Harvey v. United States, 105 U. S. 671; United States v. Old Settlers, 148 U. S. 427; In re Neagle, 135 U. S. 1. V. If this appeal is dismissed for want of jurisdiction the decree of the Court of Claims will be null and void, and unavailable for any purpose whatever, citing Ex parte Siebold, 100 U. S. 371; United States n. Yale Todd, reported in a note to United States v. Ferreira, 13 How. 40, 52, 54. VI. The Court of Claims erred in not dismissing the bill when it found as a matter of fact that the Mexican Government, by the exercise of the same diligence which it exercised after the adjournment of the Commission, could have obtained the so-called newly discovered evidence, and used it while the claim was pending before the Commission; citing Western Cherokee Indians v. United States, 21C. Cl. 1; Dexter v. Arnold, 2 Mason, 303 ; Barnett v. Smith, 5 Call, (Virginia) 98; Todd n. Barlow, 2 Johns. Ch. 551; Livingston v. Hubbs, 3 Johns. Ch. 124; Lansing v. Albany Ins. Co., 1 Hopk. Ch. 102; Allen v. Ranney, 1 Conn. 569; Dulin v. Caldwell, 29 Georgia, 362; Elliott v. Adams, 8 Blackf. 103 ; Cook v. McRoberts, 5 Ky. Law Reporter, 764; Aubel v. Ealer, 2 Bin. 582; Plymouth n. Russell Mills, 89 Mass. 438 ; Young v. Keighly, 16 Ves. 349; Poul-lain v. Poullain, 79 Georgia, 11; Kennedy v. Georgia State Bank, 8 How. 586; Life Ins. Co. v. Bangs, 103 U. S. 782; Wood v. Carpenter, 101 U. S. 135 ; Smith v. Clay, 3 Brown Ch. 639; Cooke v. United States, 91 U. S. 389; United States v, VOL. CLXXV—29 450 OCTOBER TERM, 1899. Opinion of the Court. Bank of the Metropolis, 15 Pet. 377; United States v. Hancock, 30 Fed. Rep. 851; United States v. Barker, 12 Wheat. 559; United States v. Ba/nk of the Metropolis, 15 Pet. 377; Pennsylvania v. Wheeling Bridge Co., 13 How. 518. VII. The Court of Claims erred in not dismissing the bill on the ground that its allegations relate solely to issues passed upon by the Mixed Commission when it examined the claim of La Abra Company, and that the so-called newly discovered evidence is merely cumulative upon issues already tried, and does not show, or tend to show, the kind of fraud for which equity will grant relief: citing Ross v. Wood, 70 N. Y. 8; Coltzhausen v. Kerting, 29 Fed. Rep. 828; Moffat v. United States, 112 IT. S. 24; United States v. Flint, 4 Sawyer, 52; Livingston v. Hubbs, 3 Johns. Ch. 124; Southard n. Russell, 16 How. 547. VIII. The Company had1 in the award a vested right of property of which the bill seeks to deprive it without just compensation or without due process of law : citing Gracie v. New York Insurance Co., 8 Johns. 237; Comegys v. Vasse, 1 Pet. 193; Phelps v. McDonald, 99 U. S. 298; Emerson v. Hall, 13 Pet. 409; Milnor v. Metz, 16 Pet. 221; Mayer v. White, 24 How. 317; Bachman v. Lawson, 109 U. S. 659; United States v. Diekelman, 92 IT. S. 520; United States v. Weld, 127 U. S. 51; Williams n. Heard, 140 IT. S. 529; Frelinghuysen v. Key, 110 IT. S. 63; Bank of Columbia v. Okely, 4 Wheat. 235; Giozza v. Tiernan, 148 IT. S. 657; Duncan v. Missouri, 152 IT. S. 377; Missouri Pacific Railway Co. v. Mackey, 127 IT. S. 205; Leeper v. Texas, 139 IT. S. 462; Hurtado v. California, 110 IT. S. 576; Murray v. Hoboken Land de Improvement Co., 18 How. 272. IX. The Court of Claims erred in not dismissing the bill on the ground that the alleged fraud was neither properly charged nor proved by the complainant. Mr. Justice Harlan, after stating the case as above, delivered the opinion of the court. Jn the light of this history of the claim of the La Abra LA ABRA SILVER MINING CO. v. UNITED STATES. 451 Opinion of the Court. Company we proceed to the consideration of such of the principal questions presented in argument as are essential to the disposition of the case. I. If, as insisted by the appellants, the above act of December 28, 1892, was not so approved by the President as to become under the Constitution a law, it would be unnecessary to consider any other question raised by the pleadings; for that act is the only basis of jurisdiction in the Court of Claims to render a judgment that would be conclusive between the parties and which could be reviewed by this court. We must therefore first consider whether that act is liable to the constitutional objection just stated. The ground of this contention is that having met in regular session at the time appointed by law, the first Monday of December, 1892, and having on the 22d day of that month (two days after the presentation of the bill to the President) by the joint action of the two Houses taken a recess to a named day, January 4, 1893, Congress was not actually sitting when the President on the 28th day of December, 1892, by signing it formally approved the act in question. The proposition, plainly stated, is that a bill passed by Congress and duly presented to the President does not become a law if his approval be given on a day when Congress is in recess. This implies that the constitutional power of the President to approve a bill so as to make it a law is absolutely suspended while Congress is in recess for a fixed time. It would follow from this that if both Houses of Congress by their joint or separate action were in recess from some Friday until the succeeding Monday, the President could not exercise that power on the intervening Saturday. Indeed, according to the argument of counsel the President could not effectively approve a bill on any day when one of the Houses, by its own separate action, was legally in recess for that day in order that necessary repairs be made in the room in which its sessions were being held. Yet many public acts and joint resolutions of great importance together with many private acts have been treated as valid and enforceable which were approved by the President during the recesses of Congress covering the 452 OCTOBER TERM, 1899. Opinion of the Court. Christmas holidays. In the margin will be found a reference to some of the more recent of those statutes.1 Do the words of the Constitution, reasonably interpreted, sustain the views advanced for appellant ? That instrument provides: “ The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.” Art. I, § 4. “ Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.” Art. I, § 5. “ Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States; if he approves, he shall sign it, but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on the journal, and proceed to reconsider it. If after such reconsideration two thirds of that 11. Public Acts : 1862, 12 Stat. 632, c. 4; Id. c. 5; Id. c. 6; 1866, 14 Stat. 374, c. 5; 1868, 15 Stat. 266, c. 4; 1869, 16 Stat. 61, c. 4; Id. c. 5; 1872, 17 Stat. 400, c. 12; Id. 401, c. 13; Id. 404, c. 14; Id. c. 15; Id. c. 17; 1873,18 Stat. 1, c. 3; 1874, 18 Stat. 293, c. 7; Id. c. 8; Id. c. 9; Id. 294, c. 10; 1874, 18 Stat. 294, c. 12; 1875, 19 Stat. 1, c. 1; 1879, 21 Stat. 59, c. 1; Id. c. 2; 1880, 21 Stat. 311, c. 4; Id. 312, c. 5; Id. c. 6; Id. c. 7; Id. c. 8; Id. 313, c. 9; Id. c. 10; 1884, 23 Stat. 280, c. 7; 1886, 24 Stat. 353, C. 9; 1887, 24 Stat. 354, c. 11; Id. C. 12; Id. c. 13; Id. 355, c. 14; Id. 356, c. 15; Id. 358, c. 16; 1888, 25 Stat. 638, c. 7; Id. c. 8; 1889, 25 Stat. 639, c. 18; 1892, 27 Stat. 409, c. 14; Id. 410, c. 15; Id. 412, c. 16; 1894, 28 Stat. 595, c. 8; Id. 596, c. 9; Id. c. 10; Id. c. 11; Id. 597, c. 12; Id. 599, c. 14; Id. c. 15; 1897, 30 Stat. 226, c. 3. II. Joint Resolutions : 1869, 16 Stat. 368, No. 5; Id. No. 6; 1872, 17 Stat. 637, No. 1; 1878, 20 Stat. 487, No. 1; Id. No. 2; Id. No. 3; 1883, 23 Stat. 265, No. 3; 1885, 24 Stat. 339, No. 2; Id. No. 3; 1893, 28 Stat. 577, No. 7; 1894, 28 Stat. 967, No. 2. III. Private Acts : 1873,18 Stat. 529, c. 2; 1874, 18 Stat. 529, c. 4; 1879, 21 Stat. 531, c. 3; 1880, 21 Stat. 601, c. 11; Id. c. 12; Id. 602, C. 13; Id. c. 14; 1884, 23 Stat. 615, c. 6; 1885, 24 Stat. 653, c. 1; Id. c. 2; 1886, 24 Stat. 881, c. 10; 1887, 24 Stat. 882, c. 17; Id. c. 18; Id. 883, c. 19; Id. 884, c. 20; 1888, 25 Stat. 1251, c. 9; Id. c. 10; Id. 1252, c. 11; Id. c. 12; Id. c. 13; Id. c. 14; Id. c. 15; Id. 1253, C. 16; Id. C. 17; 1894, 28 Stat. 1022, c. 13; Id. c. 16; Id. c. 17. la ABRA SILVER MINING CO. v. UNITED STATES. 453 Opinion of the Court. House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House, respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return, in which case it shall not be a law.” Art. I, § 7. “ Every order, resolution or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a case of adjournment,) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.” Art. I, § 8. It is said that the approval by the President of a bill passed by Congress is not strictly an executive function, but is legislative in its nature; and this view, it is argued, conclusively shows that his approval can legally occur only on a day when both Houses are actually sitting in the performance of legislative functions. Undoubtedly the President when approving bills passed by Congress may be said to participate in the enactment of laws which the Constitution requires him to execute. But that consideration does not determine the question before us. As the Constitution while authorizing the President to perform certain functions of a limited number that are legislative in their general nature does not restrict the exercise of those functions to the particular days on which the two Houses of Congress are actually sitting in the transaction of public business, the court cannot impose such a restriction upon the Executive. It is made his duty by the Constitution to examine and act upon every bill passed by Congress. The time within which he must approve or dis- 454 OCTOBER TERM, 1899. Opinion of the Court. approve a bill is prescribed. If he approve a bill, it is made his duty to sign it. The Constitution is silent as to the time of his signing, except that his approval of a bill duly presented to him —if the bill is to become a law merely by virtue of such approval —must be manifested by his signature within ten days, Sundays excepted, after the bill has been presented to him. It necessarily results that a bill when so signed becomes from that moment a law. But in order that his refusal or failure to act may not defeat the will of the people, as expressed by Congress, if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him. We perceive nothing in these constitutional provisions making the approval of a bill by the President a nullity if such approval occurs while the two Houses of Congress are in recess for a named time. After a bill has been presented to the President, no further action is required by Congress in respect of that bill unless it be disapproved by him and within the time prescribed by the Constitution be returned for reconsideration. It has properly been the practice of the President to inform Congress by message of his approval of bills, so that the fact may be recorded. But the essential thing to be done in order that a bill may become a law by the approval of the President is that it be signed within the prescribed time after being presented to him. That being done, and as soon as done, whether Congress is informed or not by message from the President of the fact of his approval of it, the bill becomes a law, and is delivered to the Secretary of State as required by law. Much of the argument of counsel seems to rest upon the provision in relation to the final adjournment of Congress for the session, whereby the President is prevented from returning, within the period prescribed by the Constitution, a bill that he disapproves and is unwilling to sign. But the Constitution places the approval and disapproval of bills, as to their becoming laws, upon a different basis. If the President does not approve a bill, he is required within a named time to send it back for consideration. But if by its action, after the la ABRA SILVER MINING CO. v. UNITED STATES. 455 Opinion of the Court. presentation of a bill to the President during the time given him by the Constitution for an examination of its provisions and for approving it by his signature, Congress puts it out of his power to return it, not approved, within that time to the House in which it originated, then the bill falls, and does not become a law. Whether the President can sign a bill after the final adjournment of Congress for the session, is a question not arising in this case, and has not been considered or decided by us. We adjudge — and touching this branch of the case adjudge nothing more — that the act of 1892 having been presented to the President while Congress was sitting and having been signed by him when Congress was in recess for a specified time, but within ten days, Sundays excepted, after it was so presented to him, was effectively approved, and immediately became a law, unless its provisions are repugnant to the Constitution. II. It is said that the present proceeding based on the act of 1892 is not a “case” within the meaning of that clause of the Constitution declaring that the judicial power of the United States shall extend to all cases in law and equity arising under that instrument, the laws of the United States, or treaties made or which shall be made under their authority. Art. Ill, § 2. This Article, as has been adjudged, does not extend the judicial power to every violation of the Constitution that may possibly take place, but only “ to a case in law or equity, in which a right, under such law, is asserted in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the Article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the Constitution to which the judicial power of the United States would extend.” Cohens v. Virginia, 6 Wheat. 264, 405. In the same case, Chief Justice Marshall declared a suit to be the prosecution by a party of some claim, demand or request in a court^of justice for the purpose of being put in possession of a right claimed by him and of which he was deprived. 456 OCTOBER TERM, 1899. Opinion of the Court. Referring to the provision defining the judicial power of the United States, the court in a subsequent case said: “This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws and treaties of the United States, when any question respecting them shall receive such a form that the judicial pow’er is capable of acting on it. That power is capable of acting only when a subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws and treaties of the United States.” Osborn v. United States Bank, 9 Wheat. 738, 819. In Murray n. Hoboken, 18 How. 272, 284, this court said that Congress can neither “ withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination.” But in the same case it was observed by Mr. Justice Curtis, speaking for the court, that “ there are matters involving public rights which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Of like import was the judgment in/Sw^A v. Adams, 130 U. S. 167,173, in which the court said that the terms “cases” and “controversies” in the Constitution embraced “ the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcements of rights, or the prevention, redress or punishment of wrongs.” The principles announced in the above cases are illustrated by the opinion prepared by Chief Justice Taney for the case of Gordon v. United States, 2 Wall. 561, and printed in 117 U. S. 697. That case was brought to this court from the Court of Claims, and related to a demand asserted against the United States. The principal question was whether this^court had jurisdiction to review the final order made in the court LA ABRA SILVER MINING CO. v. UNITED STATES. 457 Opinion of the Court. below. The Chief Justice died before the case was decided and the opinion prepared by him in recess wTas not formally accepted. But if the court approved his views, as it undoubtedly did, the appeal was dismissed upon the ground that Congress could not authorize or require this court to express an opinion on a case in which its judicial power could not be exercised, and when its judgment would not be final and conclusive upon the rights of the parties. “ The award of execution,” Chief Justice Taney said, “is a part, and an essential part, of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award, the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress.” In a more recent case this court dismissed an appeal from a final order made in the Court of Claims in virtue of a particular statute, observing: “ Such a finding is not made obligatory on the department to which it is reported — certainly not so in terms, and not so, as we think, by any necessary implication. We regard the function of the Court of Claims, in such a case, as ancillary and advisory only. The finding or conclusion reached by that court is not enforceable by any process of execution issuing from the court, nor is it made by the statute the final and indisputable basis of action either by the department or by Congress.” In re Sanborn, 148 U. S. 222, 226; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 483. Under the principles established in the cases above cited, the objections urged against the jurisdiction of the Court of Claims and of this court cannot be maintained, if the present proceeding involves a right which in its nature is susceptible of judicial determination, and if the determination of it by 458 OCTOBER TERM, 1899. Opinion of the Court. the Court of Claims and by this court is not simply ancillary or advisory but is the final and indisputable basis of action by the parties. The money in the hands of the Secretary of State was paid to the United States by Mexico pursuant to the award of the Commission. That tribunal dealt only with the two Governments, had no relations with claimants, and could take cognizance only of claims presented by or through the respective governments. No claimant, individual or corporate, was entitled to present any demand or proofs directly to the Commission. No evidence could be considered except such as was furnished by or on behalf of the respective governments. While the claims of individual citizens presented by their respective governments were to be considered by the Commission in determining amounts “ the whole purpose of the convention was to ascertain how much was due from one government to the other on account of the demands of their respective citizens.” And “ each government, when it entered into the compact under which the awards were made, relied on the honor and good faith of the other for protection so far as possible against frauds and impositions by the individual claimants.” Frelinghuysen v. Key, above cited. As between the United States and Mexico, indeed as between the United States and American claimants, the money received from Mexico under the award of the Commission was in strict law the property of the United States, and no claimant could assert or enforce any interest in it so long as the Government legally withheld it from distribution. When the La Abra Company asked the intervention of the United States it did so on the condition imposed by the principles of comity recognized by all civilized nations, that it would act in entire good faith, and not put the government whose aid it sought in the attitude of asserting against the Mexican Republic a fraudulent or fictitious claim; consequently the United States, under its duty to that Republic, was required to withhold any sum awarded and paid on account of the Company’s claim if it appeared that such claim was of that character. As between the United States and the la ABRA SILVER MINING CO. v. UNITED STATES. 459 Opinion of the Court. Company, the honesty or genuineness of the latter’s claim was open to inquiry in some appropriate mode for the purpose of fair dealing with the government against which such claim was made through the United States. We so adjudged in the Key case. The United States assumed the responsibility of presenting the La Abra claim and made it its own in seeking redress from the Mexican Republic. But from such action on its part no contract obligations arose with the La Abra Company “ to assume their frauds and to collect on their account all that, by their imposition of false testimony, might be given in the awards of the Commission.” Boynton v. Blaine, above cited. These considerations make it clear that the act of 1892 is not liable to the objection that it subjected to judicial determination a matter committed by the Constitution to the exclusive control of the President. The subject was one in which Congress had an interest, and in respect to which it could give directions by means of a legislative enactment. Thie question for the determination of which the present suit was directed to be instituted was whether the award made by the Commission in respect to the claim of the La Abra Company was obtained as to the whole sum included therein or as to any part thereof, by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the Company, or its agents, attorneys or assigns. It cannot, we think, be seriously disputed that the question whether fraud has or has not been committed in presenting or prosecuting a demand or claim before a tribunal having authority to allow or disallow it is peculiarly judicial in its nature, and that in ascertaining the facts material in such an inquiry no means are so effectual as those employed by or in a court of justice. The Executive branch of the Government recognized the inadequacy for such an investigation of any means it possessed, and declared that Congress by its “ plenary authority ” ought not only to decide whether such an investigation should be made, but provide an adequate procedure for its conduct and prescribe the consequences to follow therefrom. The suggestion that the question of fraud be committed to the determination of a judicial 460 OCTOBER TERM, 1899. Opinion of the Court. tribunal first came from the Executive branch of the Government. Undoubtedly Congress, having in view the honor of the Government and the relations of this country with Mexico, could have determined the whole question of fraud for itself, and by a statute, approved by the President, or which being disapproved by him was passed by the requisite constitutional vote, have directed the return to Mexico, the other party to the award, of such moneys as had been paid into the hands of the Secretary of State. It is also clear that in the absence of any statute suspending the distribution of such moneys, the President could have ignored the charges of fraud and ordered the distribution to proceed according to the terms of the treaty and the award. But it does not follow that Congress was without power, no distribution having been made, to control the whole matter by plenary legislation. It has been adjudged that Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate. Head Money cases, 112 U. S. 580, 599; 'Whitney v. Robertson, 124 U. S. 190, 194; Chinese Exclusion case, 130 U. S. 581, 600; Fong Yue Ting v. United States, 149 U. S. 698, 721. It is therefore difficult to perceive any ground upon which to question its power to make the distribution of moneys in the hands of the Secretary of State — representing in that matter the United Statesand not simply the President — depend upon the result of a suit by which the United States would be bound and in which the claimants to the fund in question could be heard as parties, and which was to be brought in a court of the United States by its authority, for the purpose of determining whether the La Abra Company, its agents or assigns had been guilty of fraud in the matter of the claim that it procured to be presented to the Commission. The act of 1892 is to be taken as a recognition, so far as the United States is concerned, of the legal right of the Company to receive the moneys in question unless it appeared upon judicial investigation that the LA ABRA SILVER MINING CO. v. UNITED STATES. 461 Opinion of the Court. United. States was entitled, by reason of fraud practised in the interest of that corporation, to withhold such moneys from it. Here then is a matter subjected to judicial inves-tination in respect of which the parties assert rights — the United States insisting upon its right under the principles of international comity to withhold moneys received by it under a treaty on account of a certain claim presented through it before the Commission organized under that treaty in the belief, superinduced by the claimant, that it was an honest demand; the claimant insisting upon its absolute legal right under the treaty and the award of the Commission, independently of any question of fraud, to receive the money and disputing the right of the United States upon any ground to withhold the sum awarded. We entertain no doubt these rights are susceptible of judicial determination within the meaning of the adjudged cases relating to the judicial power of the courts of the United States as distinguished from the powers committed to the Executive branch of the Government. It remains, in our consideration of the question of jurisdiction, to inquire whether the judgment authorized by the act of 1892 to be rendered would be a final, conclusive determination, as between the United States and the defendants, of the rights claimed by them respectively, or only ancillary or advisory. In our opinion the act of Congress authorized a final judgment of the former character and therefore the judgment of the Court of Claims is reviewable by this court in the exercise of its appellate judicial power. If our judgment should be one of affirmance then the La Abra Company, and its legal representatives or assigns are barred of all claim, legal or equitable, to the money received by the United States from the Republic of Mexico on account of the award of the Commission. Such a determination would rest upon the broad ground that the United States in its efforts to protect the alleged rights of an American corporation had been the victim of fraud upon the part of that corporation, its agents or assigns, and was in law relieved from any responsibility to that corporation touching the claim in question 462 OCTOBER TERM, 1899. Opinion of the Court. or the moneys received on account of it. If, on the other hand, this court should find that the charges of fraud were not sustained or were disproved, and reverse the decree of the Court of Claims, then it would become the absolute legal duty of the Secretary of State to proceed in the distribution of the moneys in his hands according to the terms of the award. It was competent for Congress by statute to impose that duty upon him and he could not refuse to obey the mandate of the law. Much was said in argument about the interference by the act of 1892 with the discharge by the President of his constitutional functions in connection with matters involved in the relations between this country and the Republic of Mexico. For reasons already given this contention cannot be sustained. It is without support in anything done or said by the eminent jurists who have presided over the Department of State since the controversy arose as to the integrity of the claim made by the La Abra Company. On the contrary, those officers have uniformly insisted that the authority of Congress was plenary to determine whether the award in respect of those claims was procured by fraud practised on the part of that Company and whether in that event the Company should be barred of any claim to the moneys received from the Republic of Mexico. Upon this question the legislative and executive branches of the Government have acted in perfect harmony. The question arises under the Constitution of the United States and a treaty made by the United States with a foreign country, is judicial in its nature, and one to which the judicial power of the United States is expressly extended. Both branches of the Government were concerned in the enactment subjecting that question to judicial determination, and it cannot properly be said that the President by approving the act of 1892 or by recognizing its binding force surrendered any function belonging to him under the supreme law of the land. It was also said in argument that the act of Congress in some way — not clearly defined by counsel — was inconsistent with the principles underlying international arbitration, a la ABRA SILVER MINING CO. u UNITED STATES. 463 Opinion of the Court. mode for the settlement of disputes between sovereign States that is now more than ever before approved by civilized nations. We might well doubt the soundness of any conclusion that could be regarded as weakening or tending to weaken the force that should be attached to the finality of an award made by an international tribunal of arbitration. So far from the act of Congress having any result of that character, the effect of such legislation is to strengthen the principle that an award by a tribunal acting under the joint authority of two countries is conclusive between the governments concerned and must be executed in good faith unless there be ground to impeach the integrity of the tribunal itself. The act of 1892 is a recognition of the principle that “international arbitration must always proceed on the highest principles of national honor and integrity.” Frelinghuysen n. Key, above cited. By that act the United States declares that its citizens shall not through its agency reap the fruits of a fraudulent demand which they had induced it to assert against another country. Such legislation is an assurance in the most solemn and binding form that the Government of this country will exert all the power it possesses to enforce good faith upon the part of citizens who, alleging that they have been wronged by the authorities of another country, seek the intervention of their Government to obtain redress. We hold that the act of 1892 is not unconstitutional upon any of the grounds adverted to; that the Court of Claims had jurisdiction to render the decree in question ; that such decree, unless reversed, is binding upon the parties to this cause; and that this court, in the exercise of its appellate power, has authority to reexamine that decree and make such order or give such direction as may be consistent with law. III. The Court of Claims did not make a finding of facts. It is therefore contended on behalf of the United States that the appeal provided for by the act of 1892 does not authorize a reexamination of the evidence, as in equity cases generally; and that the present case comes within the rule prescribed by this court under the authority of the act of March 3, 1863, 12 Stat. 766, c. 92 ; Rev. Stat. § 708, providing that in connec- 464 OCTOBER TERM. 1899. Opinion of the Court. tion with any final judgment rendered in the Court of Claims there shall be a finding of facts. In its opinion on the demurrer to the bill the Court of Claims said: “ The directions of the statute [the act of 1892] as to the character of the decree seem to be without doubt, and as the court in the trial of the cause is in the exercise of equity powers, it would find no difficulty in entering such a decree as will carry out the purpose of the statute.” 29 C. Cl. 432, 522. In its opinion on the final hearing of the case the court below said.: “ This being a proceeding in equity, this court is not called upon to settle the facts by the finding of ultimate facts for the consideration of the Supreme Court, but the whole record is transmitted to that court, and the case is to be determined in the Supreme Court upon the law as it shall be adjudged and upon the facts as they shall be found by the decision of the Supreme Court. That would be so in a case of this kind arising under the ordinary jurisdiction of the Court of Claims, but it is especially true from the provisions of the statute giving us the special jurisdiction to determine the issues of this proceeding. The statute provides for a decree, and not for a money judgment.” After citing Harvey v. United States, 105 IT. S. 671, the court continued: “All the testimony being before the Supreme Court for the purpose of settling ultimate facts from such testimony, we have confined the limits of this opinion to questions of law, and the determination of the ultimate fact which is, whether the Company was compelled to abandon its mines because of the acts of the people of Mexico and the Mexican authorities.” 32 C. Cl. 462, 515, 516. In our judgment the Court of Claims properly interpreted the act of 1892. While that act does not, in express words, direct the Attorney General to institute a suit “in equity” or declare that this court on appeal should reexamine the entire case on both law and facts, a suit of that character was contemplated when Congress invested the Court of Claims with full jurisdiction to make “all interlocutory and final decrees therein as the evidence may warrant, according to the principles of equity and justice, and to enforce the same by injunc' LA ABRA SILVER MINING CO. v. UNITED STATES. 465 Opinion of the Court. tion or any proper final process,” and gave either party the right to appeal to this court from the final decision within ninety days “ from the rendition of such final decree.” This construction is not inconsistent with the direction that the Court of Claims should in all respects proceed in the suit brought by the Attorney General “ according to law and the rales of said court, so far as the same are applicable,” and that the appeal from its final decree should be taken “ under the rules of practice which govern appeals from said court.” Looking at the words of the act of 1892 and the peculiar nature of the important questions involved in any suit brought under it, we cannot suppose that Congress intended to relieve this court from the responsibility of determining for itself and upon its own view of all the evidence what were the ultimate facts bearing upon the inquiry as to the alleged fraud in bringing about the award in question. The present proceeding, we think, comes within the principle announced in Harvey v. United States, 105 U. S. 671, 691, where it was said that the rule in regard to findings of fact in the Court of Claims had no reference to a case “ of equity jurisdiction conferred in a special case by a special act ” in which “ this court must review the facts and the law as in other cases in equity appealed from other courts.” This principle was approved and applied in United States n. Old Settlers, 148 U. S. 427, 428, 465. We are of opinion that the appeal provided for in the act of 1892 was one under which it is our duty to determine the rights of the parties as in a case in equity. The provision in the act expressly empowering the court below in the event it was found that the award in question was fraudulently obtained as to the whole or any part of the sum included therein by the La Abra Company, to bar and foreclose all claims in law or equity on its part, together with the provision authorizing the court to render such interlocutory and final decrees as the evidence may warrant, according to the principles of equity and justice, and to enforce the same by injunction, imports such jurisdiction in the Court of Claims as may be ordinarily exercised by courts of equity as distinguished from courts of law, VOL. CLXXV—30 466 OCTOBER TERM, 1899. Opinion of the Court. and as entitled that court to send up the entire evidence for examination here. IV. We come now to consider in the light of all the evidence whether the award in question was obtained by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the La Abra Company, its agents, attorneys or assigns. In view of the exceptional character of the case, and that there may be no ground to misapprehend the basis upon which our decree will rest, we deem it appropriate to set forth in this opinion the principal facts bearing on the issue of fraud. In its memorial presented to the Commission through the United States, the La Abra Company referred to the mines in Mexico of which it asserted ownership as being of extraordinary richness and historical interest. It was stated in the memorial that after becoming the proprietor of those mines the Company with all possible dispatch proceeded to the working of them, and to that end sent intelligent agents to Mexico, employed miners, machinists and laborers, purchased mules, equipments, provisions, the best and most improved machinery which were transported on the backs of mules to the mines at heavy cost, and incurred other expenses necessary to the most extensive and successful working of the property; that they expended in the purchase of the mines and in their working the sum of three hundred and three thousand dollars, and as the result of this large expenditure were getting out a large amount of the richest ore and were in the act of realizing the extraordinary profit of a million dollars per annum when, by reason of unfriendly and illegal acts of the Mexican officials, they were compelled to abandon their mines, all their machinery and other property and over a thousand tons of ore obtained by the Company from the mines; that intense prejudice was constantly manifested by the civil and military authorities and by the Mexican populace against all Americans, and especially against those engaged in mining, this prejudice being intensified by the belief that the United States intended to annex Durango, Sinaloa and other States to its territory, and that the La LA ABRA SILVER MINING CO. v. UNITED STATES. 467 Opinion of the Court. Abra Company was assisting in that purpose; that the property of the Company and the persons and the lives of employes were threatened by the authorities and the people, and its superintendent was arrested without having given cause for offence, and fined and imprisoned without trial and without being informed of any offence; that when he applied to the authorities civil and military in Durango and Sinaloa for protection, his request was harshly refused, and acts of violence, encouraged by the authorities, were committed against the property and employes of the Company, which so alarmed the employes that it was impossible to keep them at work; that the authorities repeatedly seized its mule trains loaded with provisions and appropriated the same to their use, and large quantities of ore from the mines were taken from the Company, its employes being deterred by threats from resisting such spoliation; that things finally got to such a pass that an employe of the Company in charge of one of its trains was killed by the Liberal forces and the train seized, and that was made matter of boast by the Mexican officials, and the authorities at San Dimas openly avowed their purpose to drive out all American mining companies and get their property; that the one motive of this persecution was to compel the Company to leave, and thus permit the Mexicans to obtain possession of their valuable property; and that from such persecution, outrages and insecurity it became impossible for the Company to work the mines and they were abandoned as stated, such enforced abandonment utterly ruining the Company. The memorial concluded by alleging that when, the Company acquired the La Abra mines, though they were of immense richness, it was impossible from their neglected state to extract ores except by heavy expenditures; that in connection with the principal mines were buildings of great cost and other permanent structures, but owing to the abandoned condition of the mines they were of no present value; that the large expenditures made by the Company at the mines gave a very great value to them and to the buildings and other permanent structures, and they became and were of the value of 468 OCTOBER TERM, 1899. Opinion of the Court. $1,000,000; that the Company was obliged to abandon one thousand tons of silver ore already extracted, worth $500,000, which it was impossible for them to bring away, and which upon the abandonment of the mines were carried off by the Mexicans and lost to the Company; that when such abandonment occurred the Company was extracting large quantities of ore, and the profits would have been great if it had been permitted to work them ; that the Company estimated its clear annual profits which it could have obtained from the mines at $1,000,000 per annum; that in addition to the expenditures in the mines as aforesaid, the Company had expended $30,000 in conducting its business; and that the mines and the improvements and machinery therein had become wholly lost to the Company, and its losses and damages because of the enforced abandonment were $3,000,030. The memorial also stated that the Company had never received any indemnity for its claim, and its prayer was for an award against the Mexican Government for its damages with interest thereon. It may be here observed that this memorial contained no hint or intimation that the abandonment by the Company of mining operations in Mexico was due in any degree to its inability or failure to supply the money necessary for the development of its property and to meet the expenses of mining operations. That the La Abra Company ceased to work its mines in Mexico and practically abandoned them is undoubtedly true. But is it true that they did so in consequence of violence and outrages committed against it by the public authorities of the Republic of Mexico? The United States insists upon a negative answer to this question. It contends that the Company ceased to work its mines and abandoned its property for reasons wholly disconnected from anything done or omitted to be done by the authorities of Mexico and asserts that the La Abra Company suspended operations in that country not only because of want of funds necessary to develop its property, but because of the belief of stockholders that the mines were not of sufficient value to justify a larger expenditure of money; LA ABRA SILVER MINING CO. v. UNITED STATES. 469 Opinion of the Court. and that it was a pure afterthought to attempt by the agency of the United States to fasten upon Mexico responsibility for the losses incurred by the Company in the abandonment of its mining property. The connection of the La Abra Company with these mines may be briefly stated as follows: In 1865 one Hardy went to the city of New York for the purpose of selling mining property in Mexico which he claimed to own or control and which constitutes part of the property now in question. He there met a person named Garth and exhibited to him some specimens of ore which he stated were taken from that property. Among those whose attention had been called to those mines — precisely at what time or in what way does not appear — was a person named Bartholow. Garth and Bartholow were sent to Mexico by New York capitalists’to examine the mines. They were accompanied by Hardy and were joined by one who was reputed to be a California mining expert, named Griffith. The party arrived at the mines near Tayoltita, Mexico, in June, 1865. In his deposition taken June 22,1874, Bartholow stated that after examining the property several mines with their improvements were purchased from the owners, Don Juan Castillo de Valle and Ygnacio Manjarrez, at the price of $57,000, gold coin. Twenty-two twenty-fourths of the La Abra mine, lying immediately contiguous to the mines purchased from de Valle and Manjarrez, were purchased from Hardy and one Luce, at the price of $22,000, gold coin, In the same deposition Bartholow stated : “ We then reported said purchases, and all the facts exactly as they existed there, to said gentlemen, capitalists, all of whom were intimate acquaintances, and some of them personal friends and relatives of said Garth and myself, and thereupon they formed said Abra Silver Mining Company, and organized the same under the general mining laws of the State of New York, to work said mines in Mexico, which organization was perfected on the eighteenth day of November, 1865, and said mines and haciendas were duly conveyed to said company by said Garth and myself, we being amongst the very largest stockholders of the same. . . . After receiving the legal titles to all of 470 OCTOBER TERM, 1899. Opinion of the Court. said property, as we did, without any reserved interest to said former owners, the said Garth immediately returned to New York, and I proceeded to the city of San Francisco, California, and I there purchased, for and in the name of said Company, as the same had been determined upon by said Garth and myself, a ten-stamp mill, and other machinery and modern appliances for running or working the same at said mines; and I also purchased provisions and supplies of every kind and description, needed by the officers and employes, which could not be purchased to advantage in Mexico, and I shipped the same to the port of Mazatlan, Sinaloa, by steamships and sailing vessels, and from there said machinery and supplies were transported by mule trains, over the mountains of Sinaloa and Durango, to the said hacienda of La Abra Company, San Nicolas, near to Tayoltita, and I commenced, as superintendent, the work of erecting a mill house for said stamp mill, a new hacienda adjoining the old hacienda, San Nicolas, outhouses for officers and employes, and the opening of said mines, with general preparations for carrying on said mining enterprise on a large scale, as was anticipated by said stockholders. In the meantime the said Garth and myself had reported to said stockholders, at New York, our entire action and conduct in the matter of said purchases and preparations, which reports were accepted and fully approved by said stockholders, who, upon the organization of said Company, appointed me as the first superintendent of their said mining operations, and requested me to remain as such superintendent until said works were fairly started, and in successful operation. I had already requested said stockholders, and subsequently the Company, after its organization, to appoint a superintendent to relieve me, as my business in St. Louis was of greater importance to me than my interest in the mining enterprise. My successor was appointed, and relieved me at said mines in the month of May, 1866.” The successor of Bartholow as superintendent in charge of the mining property was Colonel Julian A. De Lagnel, formerly an officer in the Army of the United States. He had had no experience in mining, but was recognized by all — LA ABRA SILVER MINING CO. v. UNITED STATES. 471 Opinion of the Court. and properly, according to the evidence in this record — as a gentleman of integrity and force of character. He left New York for the mines in March, 1866, and arrived there in April of that year. He discharged the duties of superintendent for about one year and until the spring of 1867 and was succeeded by a person named Exall. The latter remained in charge of the mines until about March or April, 1868, when he abandoned the property and returned to New York, and all work at the mines ceased. When Exall left Mexico for New York, the property was placed by him in charge of one Granger. The principal witnesses before the Commission on behalf of the La Abra Company were Bartholow and Exall. The Company did not take the testimony of De Lagnel, giving as a reason for not doing so the impossibility of ascertaining his whereabouts. That excuse is not sustained by the record before us. During the entire period when Bartholow, De Lagnel and Exall were respectively superintendents at the mines, Garth was the executive officer and manager of the affairs of the Company at the city of New York, representing it in all correspondence with the different superintendents. Whatever omissions of duty were fairly chargeable against the Mexican authorities in respect of the Company’s property necessarily occurred after Bartholow took charge at the mines and before Exall returned to New York. During that period of about three years there was a regular correspondence by letter between the respective superintendents and Garth in his capacity as representative of the Company at its chief office in New York. Neither the Commissioners nor the Umpire had those letters before them when the La Abra claim was examined by them. After the award in question, the letter-impression book in which the letters or reports of the superintendents were originally copied was discovered by Mexico and brought by its diplomatic representatives to the attention of the Department of State. Of the identity of that book, as containing the correspondence between the La Abra Silver Mining Company and its several Superintendents at the mines, no doubt can exist although it is insisted that some letters do 472 OCTOBER TERM, 1899. Opinion of the Court. not now appear in the book that were once in it. It was, we suppose, principally the evidence furnished by that correspondence that induced Secretary Evarts to report to the President that the honor of the United States required that the La Abra claim should be further investigated in order to ascertain whether its Government had not been induced to enforce against a friendly power claims of American citizens based upon or exaggerated by fraud and false swearing. That there was before the Commission some evidence which, uncontradicted or unexplained, tended to support the allegations of outrage, violence and neglect of duty on the part of Mexican authorities may be admitted. That evidence came largely from Bartholow and Exalt But it is manifest that the Umpire could not possibly have reached the conclusion he did in respect to the La Abra claim if the letter book, giving detailed accounts from time to time of all that occurred at the mines while in charge of Bartholow, De Lagnel and Exall, had been in evidence when he rendered his decision. The reports made by the Company’s superintendents as to the management of the property and of what occurred at the mines are utterly inconsistent with the statement that the Company’s abandonment of mining operations and of its property was in consequence of the misconduct and violence of the Mexican authorities. Placing this letter book beside the evidence adduced before the Commission and the Umpire by the La Abra Company, it is clear that the material transactions and incidents which the Company’s witnesses before the Commission detailed as establishing the charge against the Mexican authorities were misstated or grossly exaggerated. It now appears that much of the evidence upon which the Commission must have rested its conclusion was wholly without foundation and had its origin in a fraudulent purpose or plan to make it appear that the public authorities of Mexico were chargeable with a responsibility that could not fairly or justly be imputed to them. Let us see how far this general statement is justified by the evidence adduced in the present case when examined in connection with the testimony brought before the Commission. LA ABRA SILVER MINING CO. v. UNITED STATES. 473 Opinion of the Court. In the memorial presented by the Company through the United States the principal specification of the outrages alleged to have been committed by the Mexican authorities was that “ one of the personnel of the Company, in charge of one of its trains, was openly killed by the Liberal forces, and the train seized, and that was made matter of boast by the Mexican oificials, and the authorities at San Dimas openly avowed their purpose to drive out all American mining companies and get their property.” The particular matter here referred to was that of the killing during the superintendency of Bartholow of William Grove, an employe of the Company. We have already referred to the deposition of Bartholow taken June 22, 1874. It seems that prior to that date the Mexican Government had taken the deposition or affidavit of Pio Quinto Nunez and Cepomuceno Manjarrez. Nunez, who resided in the district where the mines were situated, among other things testified “that it is not true that these Americans abandoned their enterprise on account of the acts of Mexican officials, and that it is equally false that either the civil or military authorities, or the inhabitants of the district, made any prejudicial opposition to them, as they have alleged they did; that the deponent has never seen or heard it said that any superintendent was imprisoned, and much less does he believe that such superintendent complained to the civil or military authorities in Durango and Sinaloa, and was denied the protection thus solicited; that he has never known that the authorities have countenanced acts of violence against the interests and employes of the Company; that it is false that the authorities, as the Company allege, took possession of their mules and provisions, and appropriated the same to their own use; that the Company never had any ore taken from them, as they affirm, since that which they took out of their mines still exists, as before stated; nor have their employes ever been threatened by any Mexican with intention to rob them; that the Company has no reason to complain, in any way, against Mexico, because they did not abandon their operations on account of the Mexicans, but because they themselves did not understand how to carry on the work- 474 OCTOBER TERM, 1899. Opinion of the Court. ing of the mines, as is proven by the unproductive manner in which they worked; that this is the cause of their abandonment, and not, as they say, from any want of security; that the reparation, which the Company claims of Mexico, is not founded in justice, because the allegations upon which it is based are false.” Manjarrez, residing in the same district, testified to the same effect. Now, when Bartholow’s deposition was taken in 1874 he was asked whether the statements made by Nunez and Manjarrez and other witnesses for Mexico were true. He answered in the negative, saying they were wholly untrue. In response to an inquiry as to the circumstances of the murder of one of the employes of the Company in charge of mule trains or supplies, he then testified: “ His name was William Grove; he was one of my most valued employes; he was murdered between the town of San Ignacio and Tayoltita; I afterwards recovered his body; it was badly mutilated by gunshot wounds, evidently produced by a volley of musketry. This occurred in January or February, 1866. At the time of the murder Mr. Grove was in the employ of the Abra Company as quartermaster, and was intrusted with the charge of one of our mule trains, used for transportation of supplies. Mr. Grove was murdered by soldiers of the Republican army. The train that was the special charge of Mr. Grove was taken possession of by the military authorities, with its entire outfit and supplies, all of which were totally lost to the Abra Company. The mule trains owned and worked by the Company, at that time, were three in number, aggregating about one hundred and fifty mules; the train so taken was one of the three here mentioned.” This was a very imposing statement in support of the charge in the Company’s memorial as to the murder of one of its employes and the seizure of its property by the Mexican authorities. But the charge had no foundation in fact, if Bartholow’s account of the affair as contained in his report made to the Company when all the circumstances were fresh in his mind was true. In his report to Garth as the representative of the La Abra Company, of March 7,1866, — which la ABRA SILVER MINING CO. v. UNITED STATES. 475 Opinion of the Court. report appears in the letter book above referred to, — he said : “ In my last letter I informed you that one of my employes, Wm. Grove, Esq., formerly of Saline Co., Mo., was missing, and I feared had been waylaid and murdered; since then my worst fears have been realized, for after a search of two weeks his body was found buried in the sand on the bank of the Piastla River, some ten miles above the mouth of Candalaro Creek, near where he had been murdered. At the time of the discovery of the body it was in such an advanced state of decomposition that it was impossible to ascertain the manner in which he had been killed. His mule, pistol and clothing have not yet been found; the mule is, however, likely to turn up, as it had our hacienda brand ‘ U. S. ’ on the left shoulder. These facts were promptly laid before the commander of the Liberal troops at San Ignacio, Senor D. Jesus Vega, who took great interest in the matter and promised to use all the means in his power to discover the murderers and bring them to justice, and he has had arrested and placed in confinement two men charged with the crime, and his soldiers are in pursuit of the third. These we are assured will be tried by court martial, and if found guilty will be summarily executed. Mr. Grove, I think, lost his life by imprudence in talking; he had resided in Mexico for six or seven years, spoke the language quite fluently, and ought to have understood the character of the people. I had nominally purchased a train of pack mules in Mr. Grove’s name and sent him to San Ignacio to obtain a permit for them to pack for me, and a guarantee that they would not be taken by the army; he succeeded in getting these documents and was on his way home to take possession of the mules and start them to packing; he passed the night previous to his death at the house of one Meliton, at Techamate, the place where you will recollect we stopped for dinner on our first trip up, where we had quite a quantity of watermelons. This man Meliton had a bad reputation, was some years ago convicted of murder and robbery and sentenced to be executed, but got clear by bribery. Grove told this man of his purchase of the pack train, and that he was to 476 OCTOBER TERM, 1899. Opinion of the Court. pay $4000 for it, • and was on his way to take possession of it and start it to work, thus leaving the impression that he had this sum of money with him. Now, whilst I do not think that Meliton committed the murder, I have no doubt of his having planned it and arranged for it to be done, and the imprudence of Mr. G. in telling this man the circumstances above mentioned, in my opinion, was the cause which led to his murder, which was effected between Techamate and Tenchuguilita, about midway between the two places.” In a subsequent report to Garth under date of April 10, 1866, he said: “ I wrote you fully in my last letter detailing the circumstances of the murder of William Grove and the finding of his body. Since then the Liberal authorities have taken the matter in hand and arrested one of the murderers at this place. The villain was actually in our employ, doubtless for the purpose of ascertaining when an opportunity should offer to waylay and murder another of our men if the prospect for plunder was sufficient to warrant the risk. When the officers arrested him I had him conveyed to the blacksmith shop and securely ironed. The next day he was conveyed to San Ignacio and thence to Cosala, where he was tried. We failed to convict him for the murder of Grove, but he was convicted for the murder of a woman, whom he killed previously, and sentenced to be shot, and before the execution of the sentence he confessed the murder of Grove, and revealed the names of his two confederates; these two would have been arrested before this but for the expulsion of the Liberals from the country. Now we will have to wait for the Imperialists to put their officers in power before we can act any further in the matter.” These letters were not before the Commission. If they had been, that body could not have attached any importance whatever to the statement in Bartholow’s deposition of 1874 to the effect that the murder of Grove was committed by soldiers of the Republican Army, or to the charge in the Company’s memorial that such murder “was made matter of boast by Mexican officials.” Another of the outrages alleged to have been committed LA ABRA SILVER MINING CO. v. UNITED STATES. 477 Opinion of the Court. by the Mexican authorities and to have resulted in driving the La Abra Company from its property was described in the original evidence as the robbery of Scott, one of its employes. That evidence indicated that the robbery was by the military authorities then in control in the locality of the mines. Referring to “the military authorities of the Republic” under the command of General Corona, Bartholow stated in his deposition of 1874: “One of the employes of the Company, who had been sent to Mazatlan on business, was robbed by said military authorities, near Camacho, in Sinaloa, while on his return from Mazatlan to the Company’s works, of eleven hundred and seventy-eight dollars of the moneys of the Company, which amount never was repaid to the Company, nor was the Company ever indemnified for the same in any way. I recollect the exact amount taken, because I entered the same on the books of the Company, charging the same to the ‘ robbery account,’ where other ‘ prestamos ’ and robberies were entered. The name of this employe who was so robbed of the Company’s money was George Scott, commonly called c Scottie.’ This transaction was nothing less than highway robbery by said troops, and was in addition to the several ‘ prestamos ’ levied and enforced by the military, authorities, which, I have said, ranged from three to six hundred dollars. The amount of cash ‘prestamos,’ so levied and enforced during my said superintendence, amounted to a little more than three thousand dollars, but the value of the mule trains and supplies so taken from the Company by the said military, while I was superintendent, was not less than twenty-five thousand dollars.” The same incident was described in an affidavit made in 1870 by a witness for the Company named Clark, who was a contractor for the Company while Bartholow was in charge of its property. He said that he knew “ of other abuses of said Company by. the military authorities aforesaid; that in the early part of 1866 an employ6 of said Company, whose name, deponent believes, was George Scott, (called ‘ Scottie,’) who was on his way from Mazatlan to the works of the Company in Durango, was met in the road by an armed party of 478 OCTOBER TERM, 1899. Opinion of the Court. the said military between Mazatlan and deponent’s residence in Camacho, and said armed party of troops, of the Republican army of Mexico, did, by force of arms, take from said Scott, or ‘Scottie,’ about twelve hundred out of three thousand dollars in gold coin, ($3000,) Mexican ounces, 187| ounces, which money belonged to said ‘ La Abra Silver Mining Company,’ and was being transported to said Company by the said ‘Scottie,’ who appealed to deponent to visit, with him, the headquarters of the army in that district, and to ask General Guerra to return said money, or to receipt for it, in order that he might have something to return to said company; that deponent did so visit General Guerra’s headquarters with the said ‘ Scottie,’ but was informed by the commanding officer that he could not give up said money. After said Scottie had wasted two or three, days to obtain some kind of acknowledgment of the taking of said money, he became disgusted, and returned to report the facts to his Company at Tayoltita.” How differently this affair was regarded at the time by Bartholow is shown by his report to Garth, to be found in the letter book, under date of April 10, 1866. In that report Bartholow spoke of the difficulties he had met and overcome, and stated that a demand for taxes amounting to three or four thousand dollars had been easily met, after corresponding with the collector of taxes, by the payment of thirty dollars, and that there was no necessity of troubling General Corona with the matter. He proceeded : “ In consequence of the unsettled state of the country and the presence of bands of robbers on and near the roads leading from here to the port, I have had a great deal of trouble to get money from time to time transported to pay my hands and other expenses, and in consequence I was, of course, unwilling to risk any very large sum at one time: yet, when we were getting timber and doing other work which required a great many Mexican laborers, we frequently needed $1000 per week, and of course all that the proceeds of the sales of goods did not supply had to be brought from Mazatlan, but I so managed it that we never had more than from $1500 to $2000 at risk at one time, and all came through safe except in one case. This LA ABRA SILVER MINING CO. v. UNITED STATES. 479 Opinion of the Court. occurred some two weeks ago, when I sent Mr. Scott to San Ignacio to settle our taxes with the authorities. I gave him a check on Messrs. Echeguran, Quintana & Co., for $1000 to bring up. Besides this he had some money outside of this sum which was left after paying the taxes in San Ignacio. He got the money as directed and started out of Mazatlan to overtake a train which was bringing up some supplies for us and Mr. Rice, and when about twenty miles out from the port, near the town of Comacho, six or eight armed men sprang into the road and with their guns levelled upon him forced him to dismount, and robbed him of $1178 in money, his pantaloons and boots (the latter, however, being No. 12, were too large for any of the villains, and were returned). He. immediately informed the nearest commander of the Liberal forces of the fact, who sent for him for the purpose of identifying the robbers. He complied, but could not find them, for the reason that the officer could not find even half his men. I also at the same time opened a correspondence with General Corona through the prefect, Colonel Jesus Vega, at San Ignacio, who by the way is, I think, one of the most perfect gentleman I have met in the country, and I am of the opinion that but for the turn in military affairs which occurred a few days since, we would in some way or other have been reimbursed for the loss, but now I have no hopes whatever, and we may as well charge up $1178 to profit and loss.” Can the statements in that report be reconciled with the declaration in the affidavit of Clark and in the deposition of Bartholow that the robbery of Scott was by the military authorities of the Republic under General Corona? We think not. The affair as described in that letter could never have been made the basis of a finding that would place the responsibility for this robbery upon the public authorities then holding control in Mexico. We now refer to a matter occurring during the superintendency of De Lagnel. It was referred to in argument as the Valdespino forced loan. Alluding to this exaction in his deposition, taken in rebuttal while the case was being prepared for the Commission, and being asked whether it was paid by 480 OCTOBER TERM, 1899. Opinion of the Court. him, and if not by whom, Exall said: “ It is untrue that any part of it was paid by me, voluntarily or otherwise. I was not superintendent until September, 1866, and this loan was made in July, 1866, when Colonel De Lagnel was superintendent, as will be seen by the order addressed by said Valdespino to Colonel De Lagnel, and to the best of my recollection, the whole amount, $1200, was required of and paid by said De Lagnel.” Granger, in whose charge the property was left by Exall in the spring of 1868, made an affidavit in 1870 which the Company used before the Commission in support of the charge that the Mexican authorities had imposed upon it forced loans or prestamos. He said : “ Said Company was also forced to pay ‘prestamos.’ A letter was received by Colonel De Lagnel, superintendent of said Company, from Colonel Valdespino, of the Republican army of Mexico, dated July 27, 1866, and signed ‘Jesus Valdespino,’ which came into my possession as clerk of the Company, and which letter has never, since its receipt, passed out of my possession; and I now present the same to the consul, marked ‘Exhibit Z.’ This letter demands twelve hundred dollars ($1200) from said Company for the support of his forces, under his command. It is needless to say the demand was complied with.” Here we have a distinct assertion by the Company, through its witnesses, that this demand to pay $1200 was met by the Company. The fact was just the reverse, as must have been known to some of the representatives of the Company who were accredited by it to the Commission as witnesses having knowledge of the facts. On the day succeeding the receipt of Valdespino’s letter Colonel De Lagnel wrote to the Gefe Politico of the San Dimas mines as follows: “ In due time reached me your communication of yesterday in regard to a loan or tax which you exact from the residents of the district for the support of the forces of Colonel Valdespino, and having noticed the contents thereof I answer it forthwith. I send you part of the articles I have and which you ask me for, hoping that they be useful and acceptable to you. As regards the cash I am sorry to inform you that it is impossible for me to send you even a little, because I have not here the LA ABBA SILVER MINING CO. v. UNITED STATES. 481 Opinion of the Court. necessary amount to defray my many and constant expenses. I request you to consider that this hacienda has brought the country thousands and thousands of dollars, most of which have been spent among the needy people of this district, and a considerable part in duties paid into the treasury of the district, under whose flag Colonel Valdespino is serving. As it is public and well known, not a single dollar have we received of this sum up to date. I send you two pieces of blue mohair and two pieces of bleached cotton, valued at sixty-five dollars and seventy-five cents, of which amount be pleased to send me the corresponding receipt, in order that it may serve me as a voucher to the Company I have the honor to represent.” At the same time De Lagnel wrote to .Colonel Valdespino: “ Your favor of yesterday informs me of the sad situation in which you find yourself for the lack of resources and of your intention to procure them preparatory to leaving the district. Understanding the great need that you are in and considering, as you yourself state, the many evils that we would suffer if you should bring your forces here, I do all I can to overcome the difficulties, and I have sent to the political chief of the district two pieces of mohair and two of bleached cotton, those being the only things among the necessary things mentioned which I have. It is impossible for me to contribute with money in order to provide you with what you need today. Be pleased to consider that our reducing works are not complete, and therefore unproductive, without reckoning the many expenses that we yet have to make, the proximity of the rainy season, the scarcity of money, and the abnormal political situation, which cannot but cause us serious damages. I am not, therefore, in a condition to accede, as you desire, to the wishes of the political chief, but have sent him what I have, hoping that they be accepted as a token of my good will. I suppose that having contributed with what I can I may, as a matter of course, resume my work without fearing the interruption that would be caused by the arrival of armed forces.” But this is not all the evidence on this point. De Lagnel, under date of July 31, 1866, wrote to Rice, the superintendent of the Company at San Dimas, saying: “ As to the VOL. CLXXV—31 482 OCTOBER TERM, 1899. Opinion of the Court. forced, voluntary (?) loan, it was an impossibility to meet the demand, and I so stated in my note to the prefect.” If any additional evidence were needed to disprove the statement before the Commission that the Company by its agent had met and paid the levy of $1200 by Valdespino to be used in supporting his troops, it is found in De Lagnel’s deposition taken in this cause. His attention being called to the reference in the letter book to this levy or forced loan, he said : “ I received from the civil officer in San Dimas, and also at the same time from Colonel Valdespino, letters, both bearing on the same subject. He had come into the vicinity with a command of cavalry — Liberal cavalry — destitute. The mules were broken down by coming over the mountains. They wanted food and clothing and money, and they wrote to me, saying that they had apportioned it on the two mining companies, the one at San Dimas and the one with which I was connected, levying one quarter upon us, and the other half was to be borne by the citizens. I was advised to comply. They wanted $300, if I recollect right, in money. I didn’t have the money to give them, and didn’t intend to give it even if I had it. ... I sent them a few goods — some stuff they wanted, blankets, and hats. I sent them some goods, cotton goods, and wrote a courteous note to each one of them, expressing regret that I could not comply with their wishes, and stating that we had no money, because the mines had never turned out a dollar. They wrote me an acknowledgment and sent a receipt for the goods and courteous acknowledgments. That was the end of it.” There are many other specific matters discussed in the elaborate briefs of counsel. To consider each of them and show the grounds upon which our conclusions rest would extend this opinion far beyond all proper limits. There were undoubtedly some unpleasant occurrences, such as the affair between Exall and Perez, a local judge, growing out of a misunderstanding by the latter of Exall’s order to him to keep out of a particular room at the mines. But none of those occurrences had any real connection with the abandonment bv the Company of its mining property in Mexico; and as is la ABBA SILVEB MINING CO. v. UNITED STATES. 483 Opinion of the Court. evident from the new proof adduced in this cause, they were described by the Company and its witnesses in the testimony before the Commissioners in such exaggerated terms as to justify the charge of fraud made in the bill filed by the Government. What does the letter-impression book disclose as the real cause of the Company’s abandonment of its mines ? In the reports made by Bartholow, the first superintendent, to Garth of February 6, March 7 and April 10, 1866, no statement is made which even by inference showed that any difficulties were in his way that had their origin in the acts or conduct of the public civil or military authorities of Mexico. On the contrary, one letter shows that he obtained military protection for the mill transported from Mazatlan to the mines, and another one that he had pleasant relations with the civil and military authorities of the locality. Looking next at the reports of De Lagnel, the second superintendent, we find a letter of July 6, 1866, from him to Garth, showing that there was then a heavy outstanding indebtedness against the Company that compelled the superintendent not only to lessen expenditures, but to reduce the working force nearly one half, and pay the workmen for their services one half in cash and one half in goods. Under date of October 8, 1866, De Lagnel wrote: “lam troubled exceedingly that better success has not attended my efforts, but the rainy season has proven a sore trial to my patience and been a serious drawback. I have striven to meet your wishes and expectations, and regret that my success has not been commensurate with my efforts to serve you and discharge my duties. As to sending a successor, I deem it best to tell you now that no money could tempt me to remain in this country longer than next 1st March.” On the 17th of November, 1866, De Lagnel wrote from Mazatlan to Garth: “ Had nothing occurred to interrupt the work, I feel sure that at this time the mill would be in operation, and the proofs at last being developed. Unfortunately, I was unable in September or October to communicate with this place; and the ready money giving out at the hacienda, the workmen (not miners) 484 OCTOBER TERM, 1899. Opinion of the Court. ♦ refused to continue and left, thus bringing the ditch-work to a standstill. ... In the utter impossibility of obtaining aid here, I have, despite the tone of your letters, drawn upon you for the sum of seven thousand dollars. I feel sure that you will experience no greater feeling of annoyance in receiving the intelligence than I do in communicating the fact; but after debating the thing long and carefully, I am satisfied that it is the best course to pursue. Longer delay in executing the work would be most injurious, perhaps fatal. . . . At present the mine is, I may say, bare of metal. A few days before I left metal had been struck again, but in so small a quantity as to forbid much hope.” Under date of January 5, 1867, De Lagnel wrote again to Garth from Mazatlan: “ In your latest letter, the 20 Nov’r, you there informed me that you can meet no further drafts upon you; yet I had already, about the 17 Nov’r, drawn on you as treasurer for the sum of seven thousand dollars. I wrote to you fully by the same mail, and hoped to be able to send the letter via Acapulco, and thus reach you before the draft. In this I was disappointed, and my letters having gone via S. Francisco will reach you at the same time that the d’ft comes in for payment. I trust that, despite what you say, you will find some way to satisfy the draft, for if it goes to protest it will be of incalculable injury to the best interests of the Co. To me the consequences of such a thing would be both mortifying and most embarrassing, but to the Comp’y’s interest they would prove far more serious. It is therefore that I urge upon your serious consideration the interest at stake, and pray that a prompt settlement be given upon presentation.” De Lagnel was again in Mazatlan on February 5, 1867, and on that day wrote to Garth, saying: “ I had hoped, and fully expected, to be able by this time to send forward some return for the outlay incurred by the Company in the prosecution of its enterprise; but am disappointed in not yet having succeeded in bringing on the water in sufficient quantity to drive all the machinery. . . . The supplies laid in during the past year being in great part exhausted, and a new supply LA ABRA SILVER MINING CO. v. UNITED STATES. 485 Opinion of the Court. being absolutely necessary to keep the mines, etc., going, and there being necessity for ready money in order to purchase the requisite supplies, I have drawn upon you for seven thousand five hundred dollars in favor of the Bank of California. This I would not have done had it been possible to do otherwise ; but no assistance can be had in this country. I have satisfied myself on this point, and had only the alternative to stop operations or draw on you.” We come now to the period during which Exall was superintendent. His reports to Garth, as the representative of the Company, and Garth’s letters to him, make it clear that its bankruptcy was all the time imminent, and that the time was near at hand when all work at the mines would be suspended, not because any obstacles were put in the way of the Company by the Mexican authorities, but solely because it was without money to employ in developing the property. The first letter written by Exall shows that the financial situation at the mines was such as to require the utmost economy on the part of the Company’s superintendent. Under date of May 6, 1867, after De Lagnel departed for New York, Exall wrote: “ I have, as far as I think safe, reduced the number of hands at the mines, keeping only a sufficient number to show that they are still being worked. I have a light force in the Christo; no improvement in the metal; a light force in the La Luz; the metal about the same. ... I have discharged a greater portion of the Hacienda hands.” On the 10th of May, 1867, Garth wrote to Exall a letter in which, after expressing the hope that De Lagnel would soon arrive at New York, he said : “The affairs of the Company here are much embarrassed; a few of the directors have advanced all the money to carry on the operations and have been nearly ruined by it, and are not able to afford any further aid from here, and look anxiously to be reimbursed very soon from the products of the mine, and it is hoped that your best energies will be exerted to afford relief.” Again, under date of May 20, 1867, Garth wrote to Exall, and referring to De Lagnel’s draft for $7500 said : “ This draft 486 OCTOBER TERM, 1899. Opinion of the Court. arrived on 2d April last, and was paid by one of the directors of the Company, as it was considered that was surely the last that would be needed, and we expected to return the money by an early remittance of bullion from Mexico. You can judge of our surprise and chagrin, when the last steamer arrived, instead of bringing Colonel De L. with some fruits of our works, a draft for $5000 in gold was presented for payment by Lees & Waller, drawn by De Lagnel, favor Bank California, and dated 10th April last, and of which we had not received any notice or advice whatever, and have not yet received any. As I had so often and fully advised the superintendent of the condition of affairs here and requested him not to draw further, I was much surprised that he did so, and that without giving any notice or reason for so doing. As it was found impossible to raise the means to pay this draft, it was protested and returned unpaid, and you must make some provisions for its payment when it gets back. I do trust that before that date you will have plenty of means to do so. I would now again repeat that I have made every effort possible to raise the money here and have failed, and I have advanced all I can possibly do, and the other directors have done the same; the stockholders will do nothing, and it is probable the Company will have to be sold out and reorganized.” This was followed by a letter from Garth to Exall of date May 30, 1867, in which it was said : “ We wrote to you on the 20th instant, informing you that we had nothing from you or Colonel De Lagnel, but that a draft drawn by Colonel De L. from Mazatlan, 10th April last, had been presented, and there being no funds on hand, and no means here of meeting it, that it was protested and returned not paid; it is hoped by the time it gets back you will be prepared to meet it. Since my last letter Colonel De Lagnel has arrived and made known to us something of the state of things with you. I must confess that we are amazed at the results; it seems to me incredible that every one should have been so deceived in regard to the value of the ore, and I can but still hope that the true process of extracting the silver has not been pursued, and that before this time better results have been attained. ... All ex* la ABRA SILVER MINING CO. v. UNITED STATES. 487 Opinion of the Court. penses must be cut down to the lowest point, and you and Mr. Cullins must try and bring this enterprise into paying condition if the thing is possible — at any rate, no further aid can be rendered from here, and what you need must come from the resources you now have. Neither must you run into debt; cut down expenses to amount you can realize from the mines. I cannot yet say what can be done in the future; no meeting of the stockholders has been held, and nothing done to pay off the debts here, now pressing on the Company. For the present, all I can say is that the whole matter is with you; take care of the interests and property of the Company; don’t get it involved in debt, and advise us fully of what you are doing.” Garth wrote again, June 10, 1867: “We have not heard from you since Colonel De Lagnel left Mexico, but hope that you are well and getting along as well as could be expected. The account that Colonel De L. gave us of the quality of the ores on hand was most unexpected and a fearful blow to our hopes. We trust however that a fuller examination will show better results. We have in previous letters to you and to De Lagnel so fully informed you of the condition of affairs here that it is hardly necessary to say anything further on that subject. There is no money in the treasury, and we have no means of raising any, and a few of us have already advanced all that we can do, and you have been advised that the draft last drawn by De L., on 10th April, was returned protested, and I hope you will be able to take it up when it gets back promptly. Everything now depends upon you and upon your judgment, energy, prudence and good management of the resources in your hands, and we hope you will be able to command success.” So straightened were the circumstances of the Company at that time that it was sued in New York on promissory notes past due, (one of the notes being held by an assignee of Garth,) and it permitted judgment on them by default in July, 1867, for the sum of $53,653.50. Manifestly that suit was institute’d with the consent, if not by the direction, of the officers of the Company who had charge of its affairs in New 488 OCTOBER TERM, 1899. Opinion of the Court. York, who were aware of its financial embarrassments and knew that it must soon suspend business and go into liquidation. By a letter of June 11, 1867, Garth was informed by Exall that he had been compelled to draw on him for $3000. The latter’s letter of July 13, 1867, expressed regret that the draft made by De Lagnel before he left for New York could not be paid, and stated: “ All your previous letters to me were to follow out the instructions given to Colonel De L. I took charge of affairs at a time when the expenditure of money was absolutely necessary to purchase supplies for the rainy season. Colonel De L. left me with only moderate means to buy these various Supplies; pay’t of sundry’bills which were coming due, and pay of the workmen who had accounts of three, four and six months’ standing.” On the 10th of July, 1867, Garth wrote to Exall: “I had this pleasure on 30th May and 10th June last, after the return of Colonel De Lagnel, and we had learned something of the condition of affairs in Mexico. In these, as well as in preceding letters, you were fully advised of the condition of the Company here; that there had been no funds in the treasury for a long time; that appeals had been made in vain for aid to the stockholders, and that the parties here who had made heavy advances to the Company were anxious for its return, and refused to make any further payments; and that the draft for $5000 drawn on me as treasurer by Colonel De Lagnel, on the 10th April last, had been protested and returned to California, and, we suppose, to parties in Mazat-lan who advanced the money on it, and who would have to look to you for payment of same; and we expressed the hope that by that time you would have taken out sufficient money to meet it and all other expenses, and hoped soon to have a remittance of bullion from you to aid in payment of the large indebtedness here. . . . You will see, from all my letters, that no further aid can be given you from here, and that you must rely upon the resources you now have, and which, we think, ought to be ample to pay off the debts and to sustain you in current expenses, which you should cut down to the LA ABRA SILVER MINING CO. u UNITED STATES. 489 Opinion of the Court. lowest possible point. . . . Don’t run into debt or get into difficulty with the authorities, if there are any such things existing; but at the same time be firm in maintaining your rights, and don’t submit to imposition except by force, and then make a legal and formal protest as a citizen of the United States and as an American company duly organized and prosecuting a legitimate business under the protection of the law, and our rights will be protected by our Government.” Garth wrote again on the 20th of July, 1867 : “ The steamer is just starting, and I have only time to say that your letter of the 11th, by private hand, has been rec’d, advising us that you had drawn on me for $3000 gold. In former letters you will have learned the condition of things here, and that there is no money to pay same, and that former dr’ft of De Lagnel has been returned unpaid, and that you were urged to try and get along with what resources you had. These letters, no doubt, reached you in time to prevent your drawing, as no draft has been presented, and we hope by this time there is no necessity for doing so.” Under date of October 6, 1867, Exall wrote to Garth: “ By this steamer I am in receipt of yours of 10th and 20th of July and 10th of August. I was much disappointed that my urgent demand for money was not favorably answered. I have complied with the requests in your various letters in reference to giving you exact information concerning affairs here. I now have to urge you to send me means. I have heretofore been keeping above water by using the stock which I fortunately had on hand ; that is now entirely exhausted. I have neither money, stock or credit. This latter I would not use even if I had it, as in this country it is an individual obligation and no company affair. Now, you must either prepare to lose your property here or send me money to hold it (and that ’speedily) and pay off debts of the concern. I have worked as economically as possible and have cut down expenses to the lowest point. ... I am working the mines with as few hands as possible. What little good metal is taken out amounts to almost nothing. The $5000 draft of De Lagnel’s was sent to a house in this place to be collected, with instruc- 490 OCTOBER TERM, 1899. Opinion of the Court. tions to seize the property in case it was not paid. It troubled me a great deal, and I had much difficulty in warding it off. The concern to whom the draft was sent showed me his instructions and also the original draft. Fortunately for the Company there was a flaw in the draft; De Lagnel failed to sign his position, as superintendent of the La Abra Silver Mining Company; simply signed his name, making it an individual affair. This was the only thing that kept them from seizing the property. I told them they could do nothing with the property here, as the Company were not obligated on the draft. I have exhausted all the ore that I had on hand that was worth working. That which I worked was very poor and the yield small. The La Luz, on the patio, won’t pay to throw it into the river. I have had numerous assays made from all parts of each pile; the returns won’t pay. Amparas are not now granted, and mines are to be held only by working. I am compelled to keep men in mines which yield nothing, merely to hold them. This I can do no longer, as I have nothing to give the men for their labor, and must now take the chances and leave the mines unprotected.” The same letter contains a statement as to the situation which contrasts most strangely with the charge that the Company was prevented from successfully working its mines by the conduct of the Mexican authorities. That statement was: “ By next steamer will send you full statements of past months. The returns from Durango were small. I turned it over to E. P. & Co., as I was owing them. There is no difficulties about authorities, boundaries or anything else concerning the mines and hacienda, provided there is money in hand, and money must be sent. I hope I have urged this point sufficiently so that you may see fit to send me something to hold the mines. I should be sorry to see them lost on this account. Please telegraph me if you intend sending money? I fear that before I can get a reply to this something may have occurred. Of course, Colonel De Lagnel informed you the conditions and terms on which I took charge of affairs here, which was the same that he was getting, and if I had known at the time what difficulties I was going to have in procuring LA ABRA SILVER MINING CO. v. UNITED STATES. 491 Opinion of the Court. means to keep the concern in motion, I would have refused’ on any terms. I am much in need of money, as I wish to use it here. I will, in a month or so, draw on you through Wells, Fargo & Co., San Francisco, for $1500 — please inform me by earliest opportunity that you will meet the draft. . . . I hope that before this reaches you some steps will have been taken to procure means to operate with.” On the 10th of October, 1867, Garth wrote to Exall: “ I am very sorry to say that it is not possible to aid you from here, and that you must rely entirely upon the resources of the mines and mill to keep you going and to relieve you of debts heretofore contracted. It is not possible for us to direct any particular course for you, but only to urge you to try and work along as well as you can, cutting down expenses and avoid embarrassing yourself with debts. The Bank o.f California has again sent Colonel De Lagnel’s draft here for collection, but it was not possible to pay same, and it will have to return to Mexico, and we do hope you will be able to make some satisfactory arrangement to pay it.” Under date of November 17, 1867, Exall wrote to Garth from Mazatlan: “Yours of the 30th September is just at hand, and contrary to my expectations, contains nothing of an encouraging nature. I expected after having previously written so positively in reference to the critical state of affairs with me, that you would have sent me by this mail some means to relieve me from my embarrassing position. I have in former letters laid before you the difficulties under which I was laboring and begged that you would send me means, and was relying much on the present mail, expecting that some notice would have been taken of my urgent demands for assistance to protect the property belonging to the Company. To add to my further embarrassment, Mr. Cullins, whose time expired on the 16th inst. — since my leaving Tayoltita — (I left there on the 10th for this point), intends to commence suit in the courts here for his year’s salary. I am endeavoring to get him to delay proceedings until the arrival of the next steamer (don’t know as yet if I will succeed in getting him to delay), when I hope you will have seen the necessity of acting 492 OCTOBER TEBM, 1899. Opinion of the Court. decidedly and sending means to prosecute the works and pay off the debts of the Company, or abandoning the enterprise at once. Nothing can be done without a further expenditure of money. I am now doing little or nothing in the mines, and will, when I return, discharge the few men who are now at work in them. This I am compelled to do, as I have no money, and my stock is almost entirely exhausted, and I fear if money isn’t very soon sent some of the mines will become open to denouncement. In my last letter I mentioned the amount required for immediate demands, $3000, which must be sent out. By next steamer Mr. Elder, Slone and Cullins, if paid off will sail for San Francisco; if not paid off, suit will be commenced, and as I have no means to defend the case, fear it will go against me. When these parties leave, the hacienda will be left almost entirely alone, there being only myself, Mr. Granger, who I am also owing, and I away most of the time. What you intend doing must be done promptly. Please send me Mr. Cullins’ contract with you. The political state of the country just now is rather discouraging. I hope by the time this reaches you you will have rec’d statement sent. Everything at mines as it was when I last wrote, only more gloomy in appearance on ac’t of not being able to employ the people and put things in operation. Please do something immediately, and inform me as speedily as possible.” Still relief did not come to Exall and he again wrote to Garth from Mazatlan, under date of December 18, 1867, a most urgent letter. It is here given in full: “ I arrived here a few days since. Received by steamer yours of October 10, informing me of your inability to send me the means to operate with and meet my obligations. I have in previous letters expressed the condition of affairs with me, and begged that you would do something. Thus far I have been able to protect your interests here, but affairs have gotten to such a point that I am unable to do so longer without money. Mr. Cullins, who I informed you in a former letter would leave, insisted upon doing so by this steamer. He demands a settlement, otherwise he will immediately commence suit, and had made preparations to do so. To keep the matter from the courts LA ABBA SILVER MINING CO. v. UNITED STATES. 493 Opinion of the Court. I was compelled to borrow money to pay him off. The balance due him, and the amount I had to borrow here, was $1492. He has troubled me a great deal — has been exceedingly unreasonable. On yesterday the agent of the Bank of California informed me that he received the draft by the last steamer (which arrived a few days ago), and would immediately commence legal proceedings, and sent the draft on to the courts here. I am utterly unable to oppose them; first, I have no means, and, again, I am not your agent here, never having received a power of attorney from you, which will be necessary, for I cannot act in these courts without it. The Bank of California----and will do something to recover the amount of the draft before the amount is doubled by the expenses. For God’s sake telegraph to pay them. Matters of this nature once getting in these courts it takes large sums to oppose them. The first steps taken by the courts will be to send some one to the hacienda to see to and secure everything there. This will, of course, stop everything and make it impossible for me to protect your interests. For your own sake in the matter pay them before things go further. My position is extremely embarrassing, and I know not what to do, and will have to be guided entirely by circumstances. I will, of course, do everything in my power, and may have to act in a very cautious manner, and will probably act in a manner which may occasion censure. Now, all I ask of you is to judge my actions justly, and consider my circumstances, and believe I am doing the best for your interests. I am doing nothing at the mines, and have only one person left with me. Please attend to this matter promptly. I am writing very hurriedly, as there is a war steamer just leaving for San Francisco, which will arrive there some days prior to the regular mail. I leave for the mines in a few hours. Attend to this at once and telegraph me.” Exall still failed to hear anything of an encouraging character from the Company. He again wrote most urgently to Garth on the 24th day of January, 1868, as follows: “I came down to meet steamer from San Francisco, in hopes of receiving letters from you; I received none, and now, being entirely 494 OCTOBER TERM, 1899. Opinion of the Court. out of funds and stock, and being sued by agents from Bank of California for the payment, have’to let things take their own course, as I am unable longer to protect your interests here. In previous letters I have given you a full and detailed account of affairs here, and such frequent repetitions I find useless, and will simply state that I am doing nothing whatever at the mines, and cannot until I receive money to operate with. I haven’t means to protest now and they are liable to be denounced at any moment. Some months since I wrote you for titles; the government demanded them; they have not been received. By steamer I sent you a telegram from San Francisco; no reply. The parties I sent the dispatch to in San Francisco sent it on to New York. I am owing considerable and no means of paying. What is your intention ? Is it to let your interests here go to the dogs? You have either to do this or send money out to protect them. If by next steamer I receive no assistance from you, I intend leaving for the East. I will go via San Francisco, will from there telegraph you what further steps I shall take. I have been doing everything in my power to keep the Bank of California from getting possession; thus far have succeeded, but can prevent them no longer, and fear they will eventually have their own way. Mr. Cullins (who is not the man he was represented to be) left by last steamer. I have only one man now; am compelled to keep some one. Please telegraph me in San Francisco, care of Weil & Co., immediately on receipt of this. You can judge by what has been done in New York and send me whether or not I may have left. Please let me know your intentions.” The situation had become financially so discouraging to Exall that he determined to leave the mines and return to New York. So under date of February 26, 1868, he wrote to James Granger, who sometimes called himself Santiago Granger and who was at the mines, this letter: “As circumstances are of such a nature as to compel me to leave for San Francisco, and probably for New York to inquire into the intentions of this company, I place in your hands the care and charge of the affairs of the La Abra S. M. Co.; together with LA ABRA SILVER MINING CO. v. UNITED STATES. 495 Opinion of the Court. its property. You are invested hereby with all power confided to me, of course, acting in all your transactions with an eye to the interests of the Company. This will, to you, should occasion require it, be ample evidence of the right possessed by you to act in their behalf. ” Notwithstanding the execution of this paper, Exall testified in his deposition taken before the Commission in 1874 as follows: “I did not leave said mines, hacienda or property in charge of said Granger, or any other person, nor did I give any charge, control, power or authority of or over the same, or any part of the same, to him, or any one else, and if he, or any other person, has taken charge or control of said mines, hacienda and property, or of any of it, or has sold, used or in any way disposed of any of it, each of such acts was without any power or authority, or right whatever to do so, so far as any act by me or for me, or on my part, as superintendent or otherwise, is concerned.” We also find in the record a letter from Exall, written from New York to Granger under date of May 8, 1868, in which the writer says: “Of course, on the first day of my arrival here, I saw nothing of the Company. The day after I went down and saw Garth. Had a long talk concerning affairs, and, contrary to our expectations, gave me no satisfaction; didn’t seem to intend to do anything more. I have seen him several times, but have got nothing from him of an encouraging nature. He seems disgusted with the enterprise, and, so far as regards himself, intends to do nothing more, or have nothing more to do with it. ... I wish I could send you some means to get along with, knowing you must be having quite a rough time, but am unable. I expected to be paid up here; its not having been done plays the devil with my arrangements.” Among the letters now produced in evidence is one from Granger, written from Tay-oltita under date of August 12, 1868, to Senor Don Remegio Rocha. That letter was in these words: “ I have received the communication calling upon this Company to pay $52.50 each month for taxes imposed by the legislature of the State, and presume it to be correct; but as I am only acting in the absence of the. superintendent, and as there is no money nor 496 OCTOBER TERM, 1899. Opinion of the Court. effects to pay this tax, I beg you to wait until the month of November, at which time said superintendent is to come, and then the sums due by this Company on account of this tax will be paid.” From the above and other evidence in the record it is certain that before the La Abra Company ceased to work the mining property it had become utterly bankrupt, and that its abandonment of all operations at the mines was due to its inability from want of funds to carry them on and to the belief, founded upon the experience of two years and more, that the mines, if not entirely worthless, were not of sufficient value to justify its owners in proceeding further in their development. If the proper working of the mines while Bartholow, De Lagnel and Exall were successively in charge of them was prevented by the acts or omissions of duty on the part of the public authorities of Mexico, surely that fact would have been disclosed by the letters or reports made to the Company by its several superintendents. The demand made during that time by the Company’s representatives in charge of the mines was not for military or civil protection, but for the money needed to develop the property and to meet the debts incurred at the mines during the progress of the work there. We do not doubt that the situation was accurately described by Exall when in the above letter to Garth of October 6, 1867, he reported that “there are no difficulties*about authorities, boundaries or anything else concerning the mines and hacienda, provided there is money on hand, and money must be sent;” and when in his letter of November 17, 1867, he endeavored to impress Garth with “ the necessity of acting decidedly and sending means to prosecute the works and pay off the debts of the Company, or abandoning the enterprise at once.” In that condition of affairs, it is not strange that Exall in the letter of January 24, 1868, just before he left Mexico for New York, wrote to Garth : “I am owing considerable and no means of paying. What is your intention ? Is it to let your interests here go to the dogs? You have either to do this or send money out to protect them.” We have seen that Garth, as the representative of the Company, in LA ABBA SILVER MINING CO. v. UNITED STATES. 497 Opinion of the Court. a letter to Exall, dated July 10,1867, warned him against running into debt and getting into difficulty with the authorities, “ if there are any such things existing; ” “ but,” he continued, “ at the same time be firm in maintaining your rights, and don’t submit to imposition except by force, and then make a legal and formal protest as a citizen of the United States and as an American company duly organized and prosecuting a legitimate business under the protection of the law, and our rights will be protected by our Government.” Now, it does not appear that there was any formal protest before the United States Consul at Mazatlan by any representative of the Company to the effect that the Mexican authorities had so acted or failed in duty as to compel it to abandon its property in Mexico. If the Company’s superintendents had any such view of the situation when they returned to the United States and gave an account of their management of the property, how natural it would have been for the Company, in some formal way, to have promptly brought the whole matter to the attention of the Government of the United States, and sought its aid in order to have justice done to them by the Republic of Mexico. No such course was taken, and we cannot doubt, in view of the evidence adduced after the Commission made its award, in connection with the evidence before that tribunal, that the idea of attributing the losses of the Company to the wrongful conduct of the Mexican authorities never occurred to the Company until after the organization of the Commission, long after the arrival of Exall in New York. In March, 1870, the Company for the first time gave notice to the Department of State that it had any claim against the Republic of Mexico. It then claimed only $1,930,000. A few months later it increased its claim to $3,000,030, and before the Commission concluded its labors it amended its claim and fixed it at $3,962,000. One point in connection with the letter-impression book cannot be passed without notice. It is contended that what passed between Garth and the superintendents in charge of the property, in the form of letters or reports by the latter to the former, was not admissible in evidence against the Com-vol. clxxv—32 498 OCTOBER TERM, 1899. Opinion of the Court. pany. This proposition cannot be sustained. The superintendents placed at the mines were its representatives in charge of the Company’s property. What they did at the locality of the property in and about its management were the acts of the Company, so far as those acts were within the scope of the business intrusted to them. So what they said while engaged in managing and with reference to the management of the property, particularly what they reported to their principal in respect to the condition of the property and their acts in the course of the business, constitute part of the res gestae of the controversy between the parties. The vital inquiry in this cause is whether the Company’s representatives at the mines were prevented by the Mexican authorities from developing and working them, whereby it was forced to abandon the property. Surely, what those representatives said and did or fore bore to do at the mines, bearing upon that inquiry, would have been part of the res gestae and admissible in evidence against the Company. Upon like ground, their written reports or letters to the Company while in charge of the property and in respect of its management are admissible in evidence so far as they bear upon the same inquiry and constitute a part of the res gestae. The rule, we think, is accurately stated by Greenleaf, who, after saying that the act or declaration of each member of a partnership in furtherance of the common object of the association is the act of all, because by the very act of association each one is constituted the agent of all in respect of the common business, says: “ A kindred principle governs in regard to the declarations of agents. The principal constitutes the agent his representative, in the transaction of certain business; whatever therefore the agent does, in the prosecution of that business, is the act of the principal, whom he represents. And ‘ where the acts of the agent will bind the principal, there his representations, declarations and admissions, respecting the subject-matter, will also bind him, if made at the same time, and constituting part of the res gestae. They are of the nature of original evidence, and not of hearsay; the representation or statement of the agent, in such cases, being the ultimate fact to be proved, and not an admission of LA ABBA SILVER MINING CO. v. UNITED STATES. 499 Opinion of the Court. some other fact. But, it must be remembered, that the admission of the agent cannot always be assimilated to the admission of the principal. The party’s own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending et dum ferret opus. It is because it is a verbal act, and part of the res gestae, that it is admissible at all; and therefore it is not necessary to call the agent himself to prove it: but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it; and it follows that where his right to act in the particular matter in question has ceased, the principal can no longer be affected by his declarations, they being mere hearsay.” 1 Greenl. Ev., § 113. See also Story on Agency, § 134. Upon a careful scrutiny of all the evidence we are of opinion that so far from the Mexican Government being legally responsible for the losses falling upon the Company, its investment was without profitable results, because the Company did not have or did not furnish to its superintendents at the mines the funds required for their successful development, and did not find the property to be as valuable as they had supposed. All this is apparent from the reports made from time to time to the Company by its superintendents, duplicate originals of which are to be found in the letter-impression book which was not before the Commission. The identity of that book is1 fully established and the Mexican Republic is not fairly chargeable with negligence in not having discovered it sooner. It is certain that that Government, within a reasonable time after it received the book, delivered it to the Department of State, and called attention to the important and vital facts disclosed by it, so that the United States could take such action as its sense of duty suggested. Our conclusion is that the question stated in the act of 1892 — whether the award in question “was obtained as to the whole sum included therein, or as to any part thereof, by fraud effectuated by means of false swearing or other false 500 OCTOBER TERM, 1899. Syllabus. and fraudulent practices on the part of the said La Abra Silver Mining Company, or its agents, attorneys or assigns” — must be answered in the affirmative as to the whole sum included in the award. That Company placed before the Commission a state of facts that had no existence, and which we are constrained by the evidence to say its principal representatives must have known had no existence, but which being credited by the Commission under the evidence adduced before it brought about the result complained of in the bill. The whole story of losses accruing to that Company by reason of wrongs done by the authorities of Mexico, is, under the evidence, improbable and unfounded. We do not wish to be understood as saying that the Company did not meet with losses on account of its investments in this mining property. But we do adjudge that it had no claim which, upon any principle of law or equity, it was entitled to assert against the Republic of Mexico. The decree below is Affirmed. Me. Justice Geay did not hear the argument on the facts and took no part in their consideration. Me. Justice McKenna took no part in the decision. UNITED STATES u PENA. APPEAL FEOM THE COUET OF PEIVATE LAND CLAIMS. No. 72. Submitted October 27,1899. — Decided December 18,1899. The appeal in this case having been allowed within six months after the receipt by the Attorney General of the statement of the case by the trial attorney, and the action of the trial attorney having been approved by one of the justices of the trial court, there is no sufficient reason for the motion to dismiss, this court having the power under its rules, to notice plain errors, even when not assigned. An appeal from the Court of Private Land Claims can be allowed by one of the Associate Justices of the court. The grant of lands, in this case, set forth at length in the opinion of the court, was a grant in severalty, and not one of a single large tract to UNITED STATES v. PENA. 501 Opinion of the Court. several persons, to be by them held in common, or distributed among each other. This grant, having been made after the signing of the treaty of Guadaloupe Hidalgo, it was not within the power of the alcalde to change it by directing grants to additional persons, not included in the original grant; and the whole proceeding may be ignored, except so far as it indicates those who took title under the original grant, or discloses those who were their successors in interest. The statement of the case is in the opinion of the court. Mr. Attorney General, Mr. Solicitor General and Mr. Matthew G. Reynolds for appellants. Mr. Edward L. Bartlett and Mr. T. B. Catron for appellees. Mr. Justice Brewer delivered the opinion of the court. This case comes from the Court of Private Land Claims, and the first contention of appellees, made on a motion to dismiss the appeal, is that it was not taken in time. The decree was entered December 1, 1896, and the appeal was not allowed until April 14, 1898. Section 9 of the act creating the Court of Private Land Claims, act of March 3, 1891, c. 539, 26 Stat. 854, 858, while giving to either party the right of appeal within six months from the date of the decision, also provides that on the rendition of a judgment confirming any claim it shall be the duty of the attorney of the United States to notify the Attorney General in writing of the judgment, giving a clear statement of the case and the points decided — a statement to be verified by the certificate of the presiding judge of the court; and also that if the Attorney General shall not receive such statement within sixty days next after the rendition of a judgment the right of appeal on the part of the United States shall continue tp exist until six months next after the receipt of the statement. It appears in the record, from the certificate of the judge allowing the appeal, that no such statement was sent to the Attorney General until March 9, 1898, or received by him until March 25, 1898. So, within the letter of the statute, the time for an appeal on the part of the United States had not expired. 502 OCTOBER TERM, 1899. Opinion of the Court. It is also insisted that it is the duty of the United States attorney to give this notice, and that, therefore, his dereliction cannot enlarge the time within which the Government must act if it wishes to appeal. Can he, it is asked, continue indefinitely the right of appeal? In the brief filed by the Government is a statement of the reasons for the delay in giving the notice, but it is unnecessary for us to enter into any examination of the matter. It is enough that it was called to the attention of one of the justices of the trial court, who has, by allowing the appeal, approved the action of the attorney. It is for the party challenging such action to show that it was wrong. A third proposition is that nd assignment of errors is annexed to the transcript, as required by sections 997 and 1012 of the Revised Statutes. But this is not sufficient to compel a dismissal of the appeal. Paragraph 4 of Rule 21 of this court provides that the court may at its option notice a plain error not assigned. Ackley School District n. Hall, 106 U. S. 428. A final contention is that the allowance of appeal was not made by the presiding judge but by one of the associate justices of that court. But the provision of section 9 is that appeals shall be taken in the same manner and upon the same conditions as appeals from the judgments of a Circuit Court of the United States, and by section 999 of the Revised Statutes any Judge of such court has the power to act. The rule is different in cases coming from a state court. Havnor n. New York, 170 U. S. 408. There is no sufficient reason for sustaining the motion to dismiss, and it is denied. Coming now to the merits of the case it is unnecessary, in view of the contentions of the Government to which alone we direct our attention, to consider other than two matters, to the understanding of which a brief statement of facts is necessary. In 1836 Jose Julian Martinez and others made application to the ayuntamiento of Ojo Caliente for a tract of public land, called “ the Petaca.” That body declared its opinion that the grant should be made, and thereupon the governor signed this order: UNITED STATES v. PENA. 503 Opinion of the Court. “ Santa Fe, February 25, 1836. “ Having seen the action of the ayuntamiento of Ojo Caliente of date 22d instant, in which they say there is no objection to granting the applicant and his associates the land mentioned, the former grantees not possessing now any right herein, they having abandoned the same, the alcalde of said place will place those who now apply for the same in possession thereof in the required form and in conformity with the law on the subject, setting forth the general donation, in which shall necessarily be stated the boundaries of said possession, and without prejudice to any third party; also binding the grantees to the obligations prescribed by the laws to acquire title, for which purpose the alcalde shall take charge of the general document of distribution, which shall be for the archives, and he shall give testimonies therefrom, as may be requested of him, on payment of his corresponding fees. “ Perez.” In pursuance of this order the alcalde proceeded to give juridical possession, and this is the report of his action: “For the years one thousand eight hundred and thirty-six and eight hundred and thirty-seven. “ At Santa Cruz del Ojo Caliente, jurisdiction of this name, on the twenty-fifth day of the month of March, one thousand eight hundred and thirty-six, in compliance with the decree of the civil and military governor of the Territory of New Mexico, Alvino Perez, of date February 25th of the same year, in which he directs me to place in possession the petitioners who have applied for the Petaca tract of land, and as is set forth in their petition of date 29th of January of the same year, I proceeded to distribute said land in the presence of the parties interested, giving to each one of those mentioned in the list one hundred and fifty varas in a direct line, designating to them as their boundaries on the south the entrance to the canoncito and lands of Jose Miguel Lucero, on the north the hill commonly called the Tio Ortiz Hill, on the east the creek of the aguaje of the Petaca, and on the 504 OCTOBER TERM, 1899. Opinion of the Court. west the boundary of the Vallecito grant, within which limits the said new grantees were located. Of these I donated only to citizen Felipe Jaquez from the boundary of Vicente Martin to that of Eusebio Chaves, the land being a narrow strip and of little utility ; thereupon I donated to citizen Manuel Lujan two small valleys, which were not measured with the line and reach to the distribution of the said canoncito, ,and I donated to citizen Mariano Pena two small valleys, very narrow, without varying; and, continuing, I donated to citizen Antonio Eluterrio Ortiz, in the same canoncito, a small valley, also without varying; following the same course in the said canoncito, I donated to citizen Jose Francisco Lucero a small valley, also without varying, and to Jose Antonio Lucero another small valley, the boundary thereof being on the south the mouth of the same canoncito, leaving therefor a plaza one hundred and fifty varas, and fifty for women’s gardens and fifty for ingress and egress, there remaining at the mouth of the Canada de la Dorada, for common watering places, one hundred and fifty varas in a direct line, which donation I made in the name of the national sovereignty, in conformity with the law on the subject, the grantees mentioned in the annexed list understanding that the pastures, forests, waters and watering places are in common, and they were further informed that he who fails to occupy and cultivate the land granted within the term of five years, in order to acquire title, the same cannot be by him sold, exchanged, nor alienated, nor will he be admitted in a new settlement; and if any should of their own accord abandon the tract, they remain informed further that they possess no right, such being the requirements of law; and being informed of and agreeing to all this, they received the accepted possession, in virtue of which they plucked up herbs, leaped, cast stones and shouted with joy, saying, God be praised, long live the nation, long live the sovereign congress and the law that governs and protects us, and other manifestations of pleasure, by virtue of which they took possession; and, that it may so appear at all times, I, under this decree, signed this grant and donation with all the authority His Excellency was pleased to confer UNITED STATES v. PENA. 505 Opinion of the Court. upon me for the purpose set forth in the above petition and expressed in said decree attached to the present grant, the witnesses being the citizens Jesus Maria Barela and Jose Maria Barela and Jose Francis Lucero, as properly made. “ Jose Antonio Martinez. “ Jesus Maria Barela. “There was given to Juan de Jesus Jaquez from the boundary of Jose Gabriel Vigil to a pinabete on the north; valid .... (Rubric)” At the close of this follows the list referred to in the report. What was the scope and effect of this grant ? Obviously we think to give to each individual named in the list the particular tract set apart to him. It was a grant in severalty and not one of a single large tract to several persons to be by them held in common or distributed among each other. It matters not that the petition for this grant was in the name of only two or three individuals, for it was not an uncommon thing for one or more to appear as the representatives of a body or a number of persons. The language of the order of the governor seems to contemplate a grant in severalty, for it speaks of “ the general donation, in which shall necessarily be stated the boundaries of said possession.” The outer limits within which the grants are to be made are to be stated, and within those limits the several grantees are to have their possessions. Again, the provisions that “ the alcalde shall take charge of the general document of distribution” and “give testimonies therefrom as may be requested,” carries the same suggestion. The alcalde is to take charge of this general document for filing in the archives, but while holding it he is to give testimonies from it to the several parties who receive grants within the out-boundary limits. But whatever doubts might arise from an examination of the governor’s order, if that was the only document to be considered, the report of the alcalde’s proceedings shows affirmatively that he distributed the lands in the presence 506 OCTOBER TERM, 1899. Opinion of the Court. of the parties interested, “giving to each one one hundred and fifty varas in a direct line.” He evidently understood that he was to distribute this land among certain individuals. He proceeded to do so and gave juridical possession accordingly. Whatever may be thought of his interpretation of the governor’s order, the only juridical possession which is shown to have been given is juridical possession in severalty to the parties named in the list. The original petitioners were never put, so far as the record shows, in juridical possession of the entire tract, and such a grant, if it was so intended, was never made effective by any juridical possession. We think it more in consonance with justice and equity to hold, not that the grant was of an entire tract which never became operative because of a failure to give juridical possession, but that the alcalde rightfully understood it as a grant in severalty, and giving juridical possession vested in the grantees the tracts of which they wTere so placed in possession. United States v. Santa Fe, 165 U. S. 675; United States v. Sandoval, 167 U. S. 278; Rio Arriba Land &c. Co. v. United States, 167 U. S. 298. While the evidence as to the possession subsequent to the action of the alcalde is not very specific or entirely satisfactory, yet we think it is a fair conclusion that the parties did go into possession and continued that possession until the cession by the treaty of Guadaloupe Hidalgo. It is very likely, as suggested, that during the war between Mexico and the United. States the possession was in some respects at least interrupted, but such interruption cannot be adjudged fatal to the validity of the grant. We, therefore, are constrained to hold that this grant should be sustained as a grant in severalty to the individuals named in the list. The other matter which requires notice arises upon these facts: The treaty of Guadaloupe Hidalgo was signed February 2, 1848, ratifications were exchanged May 30, 1848, and proclamation made July 4,1848. By this treaty New Mexico was ceded to the United States, but for some time prior to and during that year our forces were in possession of that territory. In the month of March, 1848, these proceedings UNITED STATES v. PENA. 507 Opinion of the Court. were had. The prefect, upon application, made an order to the alcalde, of which this is a copy: “ In fulfilment of the discharge of your duty you will go to the point of La Petaca to place in possession all the individuals who are noted down in the grant of said possession, which ought to be in the archive under your charge, giving the lots which are found vacant to those persons who ask for them and who are unprovided, the equality in all the possessions, and that they pay you your fees. “Ojo Caliente, March 20, 1848. “ Salvador Lucero (Rubrica.) “ Prefect of Rio Arriba. “To the Alcalde Don Vicente Jaramillo.” In pursuance of this order the alcalde proceeded to make the further distribution, as appears from the following report: “General list, formed at the new possession which they commonly call La Petaca, made to-day, the 27th of March, of the year of our Lord 1848, in conformity to the superior decree of the prefect, Don Salvador Lucero, where he orders me that I place in possession those citizens who justly may have died or are not present; thus it is that, having stopped at the first boundary, which consists of the plaza, upwards, accompanied by the retiring justice, Don Bernardo Valdez, and my clerk, Vicente Abilucea y Cordoba, and all the municipality of citizens, and for the exact fulfilment I stated in a loud voice that I was going to measure the land in the name of the Territory of New Mexico, and that they shall receive that concession in the name of the Constitution of the United States, etc., and that measurement to the parties placed in possession was begun by the retiring justice of the peace, Don Bernardo Valdez, of that which he had donated from the year 1843, and they are the following.” Then follows a list of names, and the report closes in these words: 11 And in order that this may in all time appear, which are 508 OCTOBER TERM, 1899. Opinion of the Court. required by the law, they took possession of it by the authority and in the name of the Territory of New Mexico and respecting the Constitution of the United States, and I, the attending witness, and the retiring justice signing to-day, the day of the above date ut supra. “ Note. — The citizens placed in possession in this grant with 150 varas and with the others who may have more shall have to enjoy them in the name of the Territory of New Mexico and the Constitution of the United States, as this is the authentic disposition of the retiring and new officials, and by superior order there was given and donated to them the said possessions in the regular rule of 150 varas and in a straight line on both sides of the stream. In order that this favor may have the force and validity which the laws cite, we sign and authenticate it with all the powers which are conferred, in order that there may be no change and that it may not be again donated by another justice, except on account of abandonment of five years, or on account of not wishing to work in the fulfilment, benefit, proper, but then through the mayordomo report will be made to this court in order that another may enjoy that which he may reject; and this donation was signed and given to-day, the 27th of March, of the year of our Lord 1848. “Jose Vicente Jaramillo, [scroll.] Justice of the Peace of the County of Rio Arriba. “ Attending: “ Vicente Abilucea. [scroll.] “ Bernardo Valdez, Retiring Justice.” In respect to this it is enough to say that in so far as it was an attempt to create new rights it was beyond the power of the officials who assumed to act. The order of the prefect has a twofold aspect. It directs the alcalde to put in possession those who were named in the original grant, and this may have been within the scope of his authority. But it also attempts to make a grant to additional persons, and this was beyond his power. Crespin v. United States, 168 U. S. 208. Neither could the alcalde make such a grant. Hays v. United UNITED STATES v. CHAVEZ. 509 Statement of the Case. States, ante, 248. Indeed, it may well be doubted whether since the country was in the possession of the United States forces, and a treaty had already been signed, which was shortly thereafter ratified, for the cession of the entire Territory, any Mexican official could by new grants diminish the amount of land which was to become the property of this Government. And of course it goes without saying that no such officials had authority under the Constitution and laws of the United States to grant public lands. This whole proceeding may rightfully be ignored except so far as it indicates those who took title under the original grant, or discloses those who were their successors in interest. Further than this it has no significance. The decree of the Court of Private La/nd Claims will he reversed, and the case remanded with instructions to enter a decree in favor of the original grantees or their successors in interest for the lands granted in severalty. It may he necessary to take further testimony for identifyi/ng such parties, and the trial court is at liberty to take such testimony. UNITED STATES v. CHAVEZ. SAME v. SAME. APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS. Nos. 38, 39. Argued October 16,17, 1899. — Decided December 18,1899. Upon a long and uninterrupted possession of lands in Mexico, beginning long prior to the transfer of the territory in which they are situated to the United States, and continuing after that transfer, the law bases presumptions as sufficient for legal judgment, in favor of the possessor, in the absence of rebutting circumstances, which do not exist in this case. To the land involved in these cases the appellees claimed a complete and perfect title, and petitioned the Court of Private Land Claims under section 8 of the act establishing 510 OCTOBER TERM, 1899. Statement of the Case. the court to so adjudge and confirm it. After due hearing the court did so adjudge, and entered a decree confirming the title to petitioners, from which decree the United States prosecuted this appeal. The basis of the title to the southern portion of the tract (No. 38) is a grant made on the 5th day of November, 1716 to captain Antonio Gutierrez by captain Felix Martinez, the then governor and captain general of New Mexico. The appellees claim to derive from Gutierrez by conveyances and legal succession, and also claim a continuous possession in him, their predecessors in interest, and themselves from the date of the grant to the present time. The course and the conveyance of the title is exhibited by an abstract filed by the claimants in the lower court. It is as follows: “ Abstract of title. “ The claimant is unable to present any direct conveyance from the original grantee or from his heirs with which he is in any way connected. He relies upon the papers contained in archive No. 178 in the office of the surveyor general for New Mexico, to show that the original grantee, Antonio Gutierrez, took possession of the said tract of land and afterwards transferred the same to Diego Padilla, and. that said Diego Padilla conveyed said land to Diego Borrego, who in turn conveyed the same to Nicolas de Chavez, these conveyances being made in the years 1734 and 1736. Claimant files herewith copies and translations in triplicate of said archive No. 178. “ Claimant avers that it appears from archive No. 371, in the office of the surveyor general for New Mexico, that at some time prior to the year 1785 the tract claimed had become the property of Clemente Gutierrez, the said archive No. 371 is a record of proceedings as to the estate of the said Clemente Gutierrez, and claimant files herewith copies and translations in triplicate of so much thereof as shows the inventory of all the real estate belonging to said Clemente Gutierrez and the hijuela given to each of the heirs showing their respective shares of said real estate. UNITED STATES v. CHAVEZ. 511 Statement of the Case. “Claimant relies upon the following described deeds to connect him with the title of said Clemente Gutierrez and through him with the original title to the grant: “ Deed of Jose Lorenzo de la Pena, for himself and his sister Mariana and his brother Jose Rafael de la Pena, to Francisco Xavier Chavez, dated September 20, 1818, for an undivided fifth of the Bosque de los Pinos, bounded on the north by the lands the pueblo of Isleta, on the south by the lands known as those of Los Lentes, on the east by the hills, and on the west by the Rio del Norte, a translation of which deed, made in the year 1855 by the official translator of the office of the surveyor general for New Mexico, is now on file in this court in case No. 64, and triplicate copies thereof are filed herewith. “Deed from Francisco Sarracino, representing his mother, Maria Luisa Gutierrez, one of the children of Clemente Gutierrez, to Francisco Xavier Chavez, for an undivided interest in the ranch of Bosque de los Pinos, bounded on the north by the league of the pueblo of Isleta, on the south by residents of Valencia, on the east the plain, on the west the Rio del Norte, dated October 19, 1821, a translation of which deed, made in the year 1855 by the official translator of the' office of the surveyor general for New Mexico, is now on file in this court in case No. 64, and triplicate copies thereof are filed herewith. “A deed from Juan Nepomuceno Gutierrez and ApoIonia Gutierrez to validate the sale made by their father, Lorenzo Gutierrez, of the portion to which he and Lorenzo Gutierrez were entitled in the Bosque de los Pinos, dated December 27, 1839, a translation of which deed, made by the official translator of the office of the surveyor general of New Mexico in the year 1855, is now on file in this court in case No. 64, and triplicate copies thereof are filed herewith. “ Claimant avers that the originals of the three deeds above described were filed in the office of the surveyor general in 1855, and that they appear to have been withdrawn from that office by J. Bonifacio Chavez on the day of , 187 , and cannot now be found, although the official translations made at that time have been preserved. 512 OCTOBER TERM, 1899. Statement of the Case. “ The said Francisco Xavier Chavez, to whom the said deeds were made, was the grandfather of this claimant, and claimant has inherited from his said grandfather an interest in the property conveyed by said deeds.” A fuller statement of the documentary evidence may be omitted except of the original grant. It was produced from the Spanish archives, and its translation is as follows: “Plaintiff’s Exhibit A. Archive 315. [Translation.] 1716 (1.) No. 449. To the Governor and Captain General: “ I, Captain Antonio Gutierrez, a resident of the town of Albuquerque and a native of this Kingdom, appear before you in due legal form, and I state that, being very much in need of lands on which to plant in order to support my family, and also to the end that my sheep may have room to scatter out, and there being an uncultivated and unoccupied tract of lands below Isleta, apparently at a distance of two leagues, which formerly was held by Cristobal de Tapia, of which tract will you be pleased to make me a grant in the name of His Majesty in the same manner as it was held by said Cristobal de Tapia, and, if you be pleased to grant it to me, will you also order that the real possession be given me, designating to me boundaries and landmarks, in order that no prejudice may result to me in its possession ? “ Wherefore I ask and pray, with due humility, that you will be pleased to make me the grant that I ask for in the name of His Majesty, as one who represents his royal person, and I swear in the name of God our Lord, and by the sign of the Holy Cross, that this my petition is not in bad faith, and whatsoever is necessary, etc. Antonio Gutierrez, [scroll.] “ Note. — I ask and pray that the boundaries belonging to said tract be designated to me — on the north an arroyo.with some cottonwood trees that comes down from the hills, on the south the pueblo of San Clemente, on the east the Del Norte UNITED STATES v. CHAVEZ. 513 Statement of the Case. River, and on the west the hills of the Puerco River; and I swear in due legal form that my petition is not in bad faith, and whatever is necessary. Antonio Gutierrez. [scroll.] Presentation. “ At the town of Santa Fe on the fifth day of the month of November, in the year one thousand seven hundred and sixteen, before me, Captain Felix Martinez, Governor and Captain General of this Kingdom and provinces of New Mexico and castellan of its forces and garrisons for His Majesty, it was presented by the party therein named. Decree and Grant. “ And it having been examined by me, I treated as properly presented in accordance with law, and, in view of the fact that it is His Majesty’s will that his lands should be settled and fortified, in his royal name I make to the petitioner the grant that he asks for, as he describes it, and as Cristobal de Tapia formerly enjoyed it, without prejudice to a third party who may have a better right, and I command Captain Baltazar Romero that as soon as he be notified with this my decree he shall place the petitioner in real possession; and this shall serve him as a . sufficient formal title for his protection, and when these proceedings shall have been had he will transmit this grant and possession to my civil and military secretary in order to make him a certified copy thereof, and that this original petition remain in the said archives; and in witness thereof I sign it with my civil and military secretary. Felix Martinez, [scroll.] Before me, Miguel Tenorio de Alba, [scroll.] Civil and Military Secretary” Archive No. 178 consisted of three instruments. Two of them were respectively entitled an “ instrument of donation,” and of “ real sale,” and were respectively executed on the 7th and 11th of January, 1734, one Don Diego Borrego being grantee in both. The third was a conveyance from Borrego VOL. CLXXV—33 514 OCTOBER TERM, 1899. Statement of the Case. to Don Nicolas Chavez. It is only necessary to quote portions of the first two instruments. From the first as follows: “ In this villa of San Felipe de Albuquerque, on the seventh day of January of the year one thousand seven hundred and thirty-four, before me, Captain Juan Gonzalez Bas, alcalde, mayor and war captain of the said town and its jurisdiction, personally appeared Diego Padilla, whom I certify I know, who, in the presence of two witnesses, said that he gave and did give freely to Don Diego Borrego, to wit, a piece of land which, as will hereinafter more fully appear, he had and possesses by donation, which, in favor of the said Padilla, was made by Captain Antonio Gutierrez, and its boundaries are: On the north, lands of Joaquin Sedillo; on the east, the Rio Grande; on the south, land of the said Diego Padilla, there serving as a landmark on the said boundary, the midway line between the two houses which the said Padilla built near the boundary line of the said donation, and on the west with the boundary line called for in the title papers of the whole tract which the said Padilla has; and as I say of the said lands, he makes gift and donation and conveys his own right, domicil and seign’ory, the said Diego Padilla, with the consent of his wife and children, to the said Don Diego Borrego, without any consideration other than his own will. . . .” From the second the following recital, “ personally appeared before me [the same officer as in the other instrument] Antonio Sedillo, the legitimate son of Joaquin Sedillo, and forced heir of the aforesaid.” And further, that “ he gave and did give in real sale a tract of land down the river and below the pueblo of Isleta. . . . And as I say, the said Antonio Sedillo gives and did give in real sale the said tract, after consultation and with the consent of his mother and brothers and sisters, who gave him authority for the same, because the said Joaquin died in debt, and in order to procure the amount which he owed; and the said Antonio Sedillo acknowledges that the said tract was acquired by his said father in part by grant in the name of His Majesty and in part acquired and held under real sale, as shown by five instruments which he delivered; and the boundaries of the said tract are; On the north, the UNITED STATES v. CHAVEZ. 515 Statement of the Case. line of the league of the Isleta pueblo; on the east the Rio Grande; on the south the twin alamo, called by some the Culebra, and on the west the ridge of the Puerco River; and he says that the said tract he gives to Don Diego Borrego for the price and sum of two hundred dollars. . . .” It will be observed that there are only direct conveyances from the original grantee, Antonio Gutierrez, to Don Diego Borrego, who received the title in 1734. Borrego conveyed to Chavez in 1736. From the latter no transfer is shown to any one, but that the title' passed from him in some way to Clemente Gutierrez prior to 1785 is claimed to be established by what is called the “ proceedings and inventory, division and partition, of the property which he left at his death among his wife and five children, concluded in the year 1785. (Archive No. 371.) ” The description in the inventory is as follows : “ Idem. A ranch below the boundary of the pueblo Isleta, commonly called San Clemente, Barrancas, and Los Pinos, of which they have possession, although there is no title deed of its boundaries, estimated at $1200.” The claimants trace title directly to the widow and children of Clemente Gutierrez. The pueblo of Isleta presented a petition in the court below in which it adopted the allegations of the original petition and joined in the prayer for the confirmation of the validity of the title to the heirs and legal representatives of Antonio Gutierrez. At the close of the testimony counsel for claimant stated, counsel for the government not objecting, that “ it is admitted by the United States to be a fact that the pueblo of Isleta has had open and notorious possession and use of lands on the west side of the Rio Grande along between the boundary of the pueblo and the lands of the Los Lentes as far back as the memory of the oldest man living within the pueblo can extend, and that such possession and use have been claimed to be under a purchase from the heirs of Clemente Gutierrez, of which some documentary evidence has been presented in the paper executed by Lorenzo Gutierrez, dated May 3, 1808, and 516 OCTOBER TERM, 1899. Statement of the Case. that said paper, which is marked ‘ Plaintiff’s Exhibit G,’ and also Plaintiff’s Exhibits H and I, come from the custody and control of the officers of said pueblo, who have had them as far back as memory can extend.” Exhibit G, referred to, is as follows: “ [Translation.] “ Don Lorenzo Gutierrez, captain of militia, commandant in the field, alcade of second election of the town of Albuquerque, its jurisdiction and frontier, etc., etc. “ Whereas the principal men of the pueblo of San Agustin de la Isleta have come before me asking for a deed of conveyance for the lands which, from the boundary of the said pueblo to that of Los Lentes, from south to north, were sold to the said pueblo by my predecessor, Don Mariano de la Pena, from the estate of my mother, Donna Josefa Polonia Baca, of which I am the administrator, of which sale the documentary evidence is in the possession of the alcalde of first election of this said jurisdiction, Don Manuel de Artega, from whom, he being seriously ill, it cannot be obtained until he gets better or dies, and it being probable that it is deposited in the archives under his charge, in order to avoid the repeated petitions of the said men, and knowing that the purchase was really made, I give them the present, which I sign for their security, signing it in order that it may so duly appear, with two assisting witnesses, in this place of Parjarito, on the third day of the month of May of the year one thousand eight hundred and eight. Lorenzo Gutierrez. [Rubric.] “ Assisting witness: Augustin de la Pena. [Rubric.] “ Assisting witness : Manl. Ruvi. [Rubric.] ” The appellees also presented to the Court of Private Land Claims a petition for the confirmation of grant alleged to have been made “ by the proper authorities of the Government of Spain to one Joaquin Sedillo, which land lies immediately south of the lands of the Indian pueblo of Isleta, and was bounded on the north by the line of the league of said pueblo, UNITED STATES v. CHAVEZ. 517 Statement of the Case. on the east by the Rio Grande, on the south by a twin alamo, called by some the alamo de la Culebra, and on the west by the cefa of the Rio Puerco.” This is the northern portion of the tract contained in the decree of confirmation. It was further alleged “ that the original grant papers evidencing the said grant have been lost or destroyed, and cannot now be produced. The fact of the existence of said grant is, however, shown by papers which constitute a portion of the archive 178 in the office of the surveyor general for New Mexico, copies and translations whereof are filed herewith in duplicate.” The matter of the petition constitutes case No. 39 on the docket of this court, which, though separately appealed has been submitted with case No. 38. The lands in each being contiguous—the north boundary in one being the south boundary of the other, and having common claimants and possession, and the title in each being supported in part by the same evidence — the Court of Private Land Claims consolidated them and included their confirmation in the same decree. The petition alleged on information and belief, as to the southern boundary, as the petition in 38 alleged as to the northern boundary of the land therein described, that it “ has been completely destroyed and its location cannot now be identified with certainty, and it is probable that no tradition of its location now exists, for the reason that the said tract of land and the one immediately south thereof had become united in ownership in the hands of one person as early as 1734, as will fully appear by reference to the said archive 178, hereinbefore mentioned.” The archives referred to and the documentary evidence are the same as in No. 38, except there is no grant. The oral evidence of possession was given by the claimant, Francisco Chavez. He testified that he became personally acquainted with the tract of land commonly known as Bosque de los Pinos, in Valencia County, New Mexico, (the tract confirmed to him,) about 1839, and it was then in the possession of a relation of his grandmother. And from the records he 518 OCTOBER TERM, 1899. Opinion of the Court. knew his grandfather died in 1829, and from what he had been told by the family, his grandfather, before the latter’s death, “ possessed it, farmed it, and kept cattle and sheep upon it.” He further testified that since he has known it his father had possession, then his mother, and after her death the heirs, and the possession had never “ in any way been disturbed or encroached upon by other people.” The boundaries of the Bosque de los Pinos he gave as follows: “ On the north, by the Isleta Indian pueblo lands; on the east, by the old river bed ; a stone marks the northeast boundary, and on the south by the town of Peralta; on the west, by the present river.” The river referred to is the Rio Grande del Norte, which at the time of the original grants was their eastern boundary, but which some time subsequently to their date changed its channel. The land between the old and new channels is denominated in the evidence and in the decree of the court as “ Bosque de los Pinos,” and was confirmed to Francisco Chavez. All the rest of the tract was confirmed to the pueblo of Isleta. The sketch on page 519, which was introduced in connection with the testimony of Chavez, shows the relation of the grants, the location of some of the natural objects referred to, and the change in the river bed. Mr. William H. Pope for appellants. Mr. Solicitor General and Mr. Matthew G. Reynolds were on his brief. Mr. Frank W. Clancy for appellees. Mr. Justice McKenna, after making the above statement, delivered the opinion of the court. The title asserted by appellees is deficient in the support of direct evidence. Is the deficiency supplied by the probative force of the possession of the land ? Private ownership of the property with possession is claimed for over one hundred and thirty years before the cession of the territory to the United 520 OCTOBER TERM, 1899. Opinion of the Court. States. A continuous possession is shown from some time prior to 1785, inferentially from 1716. Mexico respected that ownership and possession for the full period of its dominion over New Mexico. Spain respected them for over one hundred years, and at the time of the cession of the sovereignty over the territory to the United States no one questioned them. Succeeding to the power and obligations of those Governments, must the United States do so? This is insisted by their counsel, and yet they have felt and expressed the equities which arise from the circumstances of the case. Whence arise those equities ? That which establishes them may establish title. Upon a long and uninterrupted possession, the law bases presumptions as sufficient for legal judgment, in the absence of rebutting circumstances, as formal instruments, or records, or articulate testimony. Not that formal instruments or records are unnecessary, but it will be presumed that they once existed and have been lost. The inquiry then recurs, do such presumptions arise in this case and do they solve its questions ? Fletcher v. Fuller, 120 U. S. 534, was an action of ejectment. Both parties claimed the land in controversy under one Francis Richardson, who died in 1750; the plaintiffs under his daughter, Abigail Fuller; the defendants under his grandson. The question arose whether a deed could be presumed to have been executed by Abigail Fuller to the grandson or to his father, uniting all interests in him. It was presented in instructions. The defendants asked an instruction that the jury might presume the execution of such a deed to their ancestor in title. The court refused, and instructed the jury as follows: “ Of course, gentlemen, if you find that you can presume a grant, if you find from the testimony that there was a lost deed which passed from Abigail Fuller to Jeremiah Richardson, or to Francis Richardson, and the property was inherited by Jeremiah, so that Jeremiah had a good title to convey to Stephen Jencks, that makes the title of the defendants here complete . . . But, gentlemen, you are to look into the evidence upon this question of a grant, and if the evidence in favor of the presumption is overcome UNITED STATES v. CHAVEZ. 521 Opinion of the Court. by the evidence against such grant, then, of course, you will not presume one. It is a question of testimony.” The defendants requested the court to instruct the jury “ that the presumption they were authorized to make of a lost deed was not necessarily restricted to what may fairly be supposed to have occurred, but rather to what may have occurred, and seems requisite to quiet title in the possessor.” The instruction was refused, and on error to this court it said, through Mr. Justice Field, that the purport of the charge was in effect “ that in order to presume a lost deed the jury must be satisfied that such a deed had in fact actually existed; . . . therein was error. “ In such cases ‘ presumptions,’ as said by Sir William Grant, ‘do not always proceed on a belief that the thing presumed has actually taken place. Grants are frequently presumed, as Lord Mansfield says, Eldridge v. Knott, Cowp. 215, merely for the purpose and from a principle of quieting possession. There is as much occasion for 'presuming conveyances of legal estates, as otherwise titles must forever remain imperfect and in many respects unavailable, when from length of time it has become impossible to discover in whom the legal estate (if outstanding) is actually vested.’ Hillary n. Waller, 12 Ves. 239, 252.” And quoting Mr. Justice Story in Ricard v. Williams, 1 Wheat. 59, 119, “‘a grant of land may as well be presumed as a grant of a fishery, or of common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession.’ It is not necessary, therefore, in the cases mentioned, for the jury, in order to presume a conveyance, to believe that a conveyance was in point of fact executed. It is sufficient if the evidence leads to the conclusion that the conveyance might have been executed, and that its 522 OCTOBER TERM, 1899. Opinion of the Court. existence would be a solution of the difficulties arising from its non-execution.” And, further quoting from the Supreme Court of Tennessee in Williams v. Donell, 2 Head, 695, 697, “ ‘ it is not indispensable, in order to lay a proper foundation for the legal presumption of a grant, to establish a probability of the fact that in reality a grant was ever issued. It will afford a sufficient ground for the presumption to show that, by legal possibility, a grant might have been issued. And this appearing, it may be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law.’ ” These principles were affirmed as applicable to grants of the kind we are considering in United States v. Chaves, 159 U. S. 452. Mr. Justice Shiras, speaking for the court, said: “ Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard n. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi j yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment accompanied by the usual acts of ownership. 1 Greenleaf Ev. § 45. UNITED STATES v. CHAVEZ. 523 Opinion of the Court. . “The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Roman law and the codes founded thereon, Best’s Principles of Evidence, 8 366, and was, therefore, a feature of the Mexican law at the time of the cession.” The application of these principles to the case at bar does not need .many directing words. It is contended by the Government that no juridical possession is shown under the grant to the southern portion of the tract; that there is no grant shown to Sedillo of the northern portion of the tract; that admitting both are shown there is no evidence that the title which Don Diego Borrego received in 1734 was conveyed to Clemente Gutierrez, who was shown to have had the possession claiming title in 1785. To infer all these things, it is argued, is to build presumption on presumption, and carry constructive proof too far. The argument is not formidable. The instances mentioned are of the same kind as those in the cited cases, and the principle of the cases is not limited or satisfied by the presumption of only one step in the title. It requires the presumption of all that may be necessary to the repose of the title — to the absolute assurance and quietude of the possession. Quoting the language of the Supreme Court of Tennessee, approved by this court, it assumes that all “ that might lawfully have been done to perfect the legal title was in fact done and in the form prescribed by law.” And, “ There is hardly a species of act or document, public or private, that will not be presumed in support of possession. Even acts of Parliament may thus be presumed, as also will grants from the crown.” Best on Presumptions, sec. 109. The number of steps presumed does not make the principle different, and whether it would give more strength to rebutting testimony we might be concerned to consider if there was any such testimony. We think there can be but one conclusion in the case. The possession of the land began in wrong or began in right. If in wrong, it must be shown. The maxims of the law declare the other way. Besides it is admitted that the Pueblo of Ise- 524 OCTOBER TERM, 1899. Opinion of the Court. leta has had open and notorious possession as far back as the memory of the oldest living inhabitant can extend, and that it was claimed under the heirs of Clemente Gutierrez, and evidenced by documents which came from the custody and control of the officers who have had them during like memory. Back to Clemente Gutierrez, therefore, a continuous possession is established by admission and by testimony not contradicted. Back beyond the period of living memory and beyond that period the title needs no inquiry for its validity and repose. But there is some documentary evidence coming from a remoter time, and it has been discussed by counsel. We do not think it is necessary to consider it at any length. It consists of the original grant to Antonio Gutierrez, three instruments of conveyance, one reciting the grant to Sedillo, and all asserting ownership and possession of the lands, and an inventory made of the estate of Clemente Gutierrez by the governor of New Mexico, then an official of Spain. The latter was made a judicial record, and the lands mentioned in it distributed among the heirs. It is to this possession that the appellees trace, as we have seen, and the questions which can arise about it — from whom derived and the rightfulness or wrongfulness of it — depend upon principles already sufficiently dis-• cussed. It is enough to say that Clemente Gutierrez died in possession, and his possession was proof of ownership. It is further contended by the Government that the record shows that the appellees do not hold the interests of all of the heirs of Clemente Gutierrez, and that, therefore, the Court of Private Land Claims should have confirmed the grant, “not to the claimants appearing before it, but to the ‘assigns and legal representatives of the original grantee.’ ” And it is urged that “to make a decree in any other form is to ‘ conclude and affect the private rights of persons as between each other,’ and this the statute [of 1891] prohibits.” We do not concur in this view of the statute. By careful distinction it precludes such view. Section. 8 of the statute under which the petitions were presented provides that persons claiming lands under a Spanish or Mexican title “that UNITED STATES v. CHAVEZ. 525 Opinion of the Court. was complete and perfect at the date when the United States acquired sovereignty therein shall have the right (but shall not be bound) to apply to said court in the manner in this act provided for in other cases for confirmation of such title; ” but the confirmation of such title “ shall be for so much land only as such perfect title shall be found to cover, always excepting any part of such land that shall have been disposed of by the United States, and always subject to and not to affect any conflicting private interests, rights or claims held or claimed adversely to any such claim or title, or adversely to the holder of any such claim or title. And no confirmation of claims or titles in this section mentioned shall have any effect other or further than as a release of all claim of title by the United States; and no private right of any person, as between himself and other claimants or persons in respect of any such lands, shall be in any manner affected thereby.” It will be observed that the provision is that from the confirmation there shall be excepted land that shall have been disposed of by the United States. It is, however, made subject to “ conflicting private interests, rights or claims.” The distinction is obvious, and the reason for it equally so. The proceeding is not a litigation between conflicting private interests; it is one against the United States, and determinative only of the title against the United States. To avoid confusion the lands that have been disposed of by the United States are required to be excepted from confirmation. To all other interests and claims the confirmation is made subject. The forum for their determination is the ordinary courts. Ainsa v. Neva Mexico d? Arizona Railroad, ante, 76; and United States v. Conway, ante, 60; both decided at the present term. Decree affirmed. 526 OCTOBER TERM, 1899. Opinion of the Court. BARDES v. HAWARDEN FIRST NATIONAL BANK. CERTIFICATE FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA. No. 429. Submitted December 20,1899. —Decided December 22, 1899. The decision in McLish v. Roff, 141 U. S. 661, that appeals or writs of error in cases in which the jurisdiction of the court was in issue, can only be taken directly to this court after final judgment, and the decision in United States v. Rider, 163 U. S. 132, that review by appeal, writ of error and otherwise must be as prescribed by the judiciary act of March 3, 1891, c. 517, and that the use of a certificate was limited by it to a certificate by the courts below, after final judgment, of questions made as to their own jurisdiction, and to the certificate by the Circuit Courts of Appeals of questions of law, in relation to which the advice of this court is sought as therein provided, are applicable to cases arising under the bankruptcy act of July 1, 1898, c. 541; and, as this case has not gone to judgment, the certificate must be dismissed. The case is stated in the opinion. J/?. Clarence A. Brandenburg, Mr. William F. Lohr, Mr. Henry C. Gardiner, Mr. Frederick W. Lohr, Mr. Deloss C. Shull and Mr. William H. Farnsworth for plaintiff. Mr. John Hutchinson and Mr. William Milchrist for defendant. Mr. Chief Justice Fuller delivered the opinion of the court. This is a certificate from the District Court of the United States for the Northern District of Iowa. It appears therefrom that a bill of complaint was filed in that court sitting in bankruptcy by Bardes, trustee of the estate of Walker, who had been therein adjudged a bankrupt on his own petition, seeking to set aside the transfer of a stock of goods by the bankrupt, and to compel defendants to account for the goods or their proceeds, because the transfer was in fraud of the provisions of the bankruptcy act, and of the creditors of the bank; that defendants interposed a demurrer to BAEDES v. HAWARDEN FIRST NATIONAL BANK. 527 Opinion of the Court. the bill on the ground that the court could not take jurisdiction of the case, and that thereupon it was certified that the court, “ desiring to obtain the opinion and instruction of the Supreme Court of the United States for its guidance in the premises, hereby certifies to the Supreme Court for its consideration and determination the following questions,” and four questions were thereupon propounded. And it was further ordered that the transcript transmitted to this court should contain the bill, the demurrer and the certificate. By the twenty-fourth section of the bankruptcy act of July 1,1898, c. 541, 30 Stat. 544, the Supreme Court of the United States, the Circuit Courts of Appeals, and the Supreme Courts of the Territories were invested with “appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases.” And it was also provided, § 25, d, that “controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof and issue writs of certiorari pursuant to the provisions of the United States laws now in force or such as may be hereafter enacted.” By the fifth section of the judiciary act of March 3, 1891, c. 517, 26 Stat. 826, it was provided that appeals or writs of error might be taken from the District Courts or from the Circuit Courts direct to this court, among other cases, in any case in which the jurisdiction of the court was in issue, but that in such cases the question of jurisdiction alone should be certified from the court below for decision; by the sixth section, that in cases made final in the Circuit Courts of Appeals, those courts might at any time certify to this court any questions or propositions of law concerning which they desired instruction for the proper decision of the cases, and this court might answer the questions, or might require the whole record and cause to be sent up for consideration; and also that in respect of cases so made final, it should be competent for this court to require by certiorari or otherwise any such case to be certified to this court for review and deter- 528 OCTOBER TERM, 1899. Syllabus. mination with the same power and authority as if it had been brought here by appeal or writ of error. It was early held under that act, McLish v. Roff, 141 U. S. 661, that appeals or writs of error in cases in which the jurisdiction of the court was in issue could only be taken directly to this court after final judgment; and subsequently in United States v. Rider, 163 U. S. 132, that review by appeal, writ of error, or otherwise, must be as prescribed by that act, and that the use of certificate was limited by it to the certificate by the courts below, after final judgment, of questions made as to their own jurisdiction, and to the certificate by the Circuit Courts of Appeals of questions of law in relation to which the advice of this court was sought as therein provided. We there held that the act of March 3, 1891, covered the whole subject-matter, and furnished the exclusive rule in respect of appellate jurisdiction, on appeal, writ of error or certificate. The bankruptcy act has made no change in this regard, and as this case has not gone to judgment, the certificate must be Dismissed. CUMMING v. RICHMOND COUNTY BOARD OF EDUCATION. ERROR TO THE SUPERIOR COURT OF RICHMOND COUNTY, GEORGIA. No. 164. Argued October 30,1899.— Decided December 18,1899. The plaintiffs in error complained that the Board of Education used the funds in its hands to assist in maintaining a high school for white children, without providing a similar school for colored children. The substantial relief asked for was an injunction. The state court did not deem the action of the Board of Education in suspending temporarily and for economic reasons the high school for colored children a sufficient reason why the defendant should be restrained by injunction from maintaining an existing high school for white children. It rejected the suggestion that the Board proceeded in bad faith or had abused the discretion with which it was invested by the statute under which it proceeded, or had CUMMING v. BOARD OF EDUCATION. 529 Statement of the Case. acted in hostility to the colored race. Held that under the circumstances disclosed, this court could not say that this action of the state court was, within the meaning of the Fourteenth Amendment, a denial by the State to the plaintiffs and to those associated with them, of the equal protection of the laws, or of any privileges belonging to them as citizens, of the United States. While all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land. The plaintiffs in error, Cumming, Harper and. Ladeveze, citizens of Georgia and persons of color suing on behalf of themselves and all others in like case joining with them, brought this action against the Board of Education of Richmond County and Charles S. Bohler, tax collector. In the petition filed by them it was alleged — That the plaintiffs were residents, property owners and taxpayers of Richmond County, the defendant Board being a corporation created under an act of the General Assembly of Georgia of August 23, 1872, regulating public instruction in that county, empowering the Board to annually levy such tax as it deemed necessary for public school purposes; That on the 10th of July, 1897, the Board levied for that year for the support of primary, intermediate, grammar and high schools in the county, a tax of $45,000, which was then due and being collected; That the petitioners interposed no objections to so much of the tax as was for primary, intermediate and grammar schools, but the tax for the support of the system of high schools was illegal and void for the reason that that system was for the use and benefit of the white population exclusively; That the Board was not authorized by law to levy any tax for the support of a system of high schools in which the colored school population of the county were not given the same educational facilities as were furnished the white school population ; That at least $4500 of the tax of $45,000 was being col- VOL. CLXXV—34 530 OCTOBER TERM, 1899. Statement of the Case. lected and when collected would be used for the support of such system of high schools ; That the Board had on hand the sum of $20,000 or other large sum, the proceeds of prior tax levies, in trust to disburse solely for legal educational purposes in the county, and would receive from the tax levy of 1897 and from other sources large sums in like trust, and that it was the owner and had the custody and control of school fixtures, furniture, educational equipments and appliances generally, holding the same in like trust; and, That although the Board was not authorized bylaw to use any part of such funds or property for the support and maintenance of a system of high schools in which the colored school population were not given the same educational facilities as were furnished for the white school population, it was using such funds and property in the support and maintenance of its existing high school system, the educational advantages of which were restricted wholly to the benefit of the white school population of Richmond County to the entire exclusion of the colored school population, and that by such use of those funds and property a deficiency for educational purposes would inevitably result, to make which good additional taxation would be required. The petitioners also alleged that they were persons of color and parents of children of school age lawfully entitled to the full benefit of any system of high schools organized or maintained by the Board ; that up to the time of the said tax levy and for many years continuously prior thereto, the Board maintained a system of high schools in Richmond County in which the colored school population had the same educational advantages as the white school population, but on July 10, 1897, it withdrew from and denied to the colored school population any participation in the educational facilities of a high school system in the county and had voted to continue to deny to that population any admission to or participation in such educational facilities; and that at the time of such withdrawal and denial the petitioners respectively had children attending the colored high school then existing, but who were CUMMING v. BOARD OF EDUCATION. 531 Statement of the Case. now debarred from participation in the benefits of a public high school education though petitioners were being taxed therefor. They averred that the action of the Board of Education was a denial of the equal protection of the laws secured by the Constitution of the United States, and that it was inequitable, illegal and unconstitutional for the Board to levy upon or for the tax collector to collect from them any tax for the educational purposes of the county, from the benefits of which the petitioners in the persons of their children of school age were excluded and debarred. The petitioners prayed that the tax collector Bohler be enjoined from collecting so much of the tax levy of July 10, 1897, as had been levied for the support of said system of high schools; that the Board be enjoined from using any funds or property then held by it or thereafter to come into its hands for educational purposes in the county for the support, maintenance or operation of that system; and that they have such other and further relief as was equitable and just. The Board of Education demurred to the petition and also filed an answer. It denied that it had established any system of high schools in the county, and averred that it was neither its duty nor had it authority to establish such a system, although it had authority in its discretion to establish high schools at such points in the county as the interest or convenience of the people required; that in pursuance of such authority it had established the Neely High School in 1876, but in 1878 its name was changed to that of the Tubman High School, when Mrs. Emily H. Tubman presented to the Board a large lot and building for the purpose of affording a higher education to the young women of the county, the Richmond Academy affording this benefit and advantage to the male sex; that the demand was urgent for the continuance of the Tubman school by the Board, and it was so accordingly determined, each pupil paying fifteen dollars for tuition per annum and non-residents of the county forty dollars, which was the charge made by the Richmond Academy for Boys; and that the property, the value of which with the fixtures, furniture and appliances was worth not less than $30,000, was 532 OCTOBER TERM, 1899. Statement of the Case. donated by Mrs. Tubman upon the express condition that in the event the Board failed to use the building for a high school the same was to enure instantly to the benefit of the Richmond Academy and the Augusta Free School; That in June, 1876, the Board deemed it wise to give its assistance to the Hephzibah High School, conducted and controlled by the Hephzibah Baptist Association in the village of Hephzibah in the southeastern part of the county, charging and receiving for high school scholars the sum of fifteen dollars per annum; That, in 1880, there being no high school in the county for the colored race, the funds of the Board justifying it, and other schools of lower grade having been established by the local trustees in Augusta sufficient to accommodate the colored children, the Board deemed it wise and proper to establish the Ware High School, charging for each pupil taught therein ten dollars per annum; and That in June, 1897, a special committee appointed by the Board investigated the status of the high schools in the county and ascertained the condition of each, and the committee recommended that, for “purely economic reasons in the education of the negro race,” the Ware High School be discontinued and the City Conference Board requested to open four primary schools in the same building at a cost of about $200 each for the accommodation of those negro children who were annually denied admittance to the schools. The answer of the Board further stated: “ Touching the Ware High School, its friends and the colored patrons thereof were called before the committee, and were heard by the committee with every respect and consideration. They were told the reasons that controlled the committee in its intention to recommend its discontinuance for the present. These were: Because four hundred or more of negro children were being turned away from the primary grades unable to be provided with seats or teachers; because the same means and the same building which were used to teach sixty high school pupils would accommodate two hundred pupils in the rudiments of education; because the Board at this time was not finan- CUMMING v. BOARD OF EDUCATION. 533 Statement of the Case. cially able to erect buildings and employ additional teachers for the large number of colored children who were in need of primary education, and because there were in the city of Augusta at this time three public high schools — the Haines Industrial School, the Walker Baptist Institute and the Payne Institute — each of which were public to the colored people and were charging fees no larger than the Board charged for pupilage in the Ware High School.” After stating that the action of the special committee was approved by the Board, the answer continued: “ At the same time when the vote was taken on the report of the Ware High School it was unanimously resolved that the Board of Education reinstate the said school whenever in their judgment the Board could afford it. Subsequently to the Board’s temporary suspension of the Ware High School a number of colored people petitioned the Board for rescission of this action, among whom were the complainants herein. A full Board was called and convened on the — day of August, and the petitioners were heard and their request fully considered. The Board, after a session and deliberation of over two hours, refused to rescind for the reasons heretofore set out, and said that in their view, until the local trustees — i.e. the City Conference Board — should have furnished a sufficiency of primary schools for the colored population it would be unwise and unconscionable to keep up a high school for sixty pupils and turn away three hundred little negroes who are asking to be taught their alphabet and to read and write. No part of the funds of this Board accrued or accruing and no property appropriated to the education of the negro race has been taken from them. This Board has only applied the same means and the same moneys from one grade of their education to another grade; and in this connection defendant says that the enrolment in the colored school is this year 238 more than the last, the Ware High School building accommodating 188 pupils.” The answer of the Board, referring to the act of 1872, averred that “ section 9 of said act commands the local trustees to provide the same facilities to each race as regards school houses and fixtures, attainments and abilities of teachers 534 OCTOBER TERM, 1899. Statement of the Case. and length of term, but that this section refers only to the schools established by the trustees of each school district under section 6 of said act, and does not apply to schools of higher grade; that section 10 of said act, which empowers this respondent to establish schools of higher grade than those established by the local trustees, ordains their establishment to such as the interest and convenience of the people may in the judgment of this Board require. It admits that on the 10th day of July last it suspended the Ware High School for the reason that in its judgment the interest and convenience of the people did not require it, and that it caused to be established in its stead three primary schools for colored children, and for reasons heretofore in its answer set forth. Whether or not the petitioners at the time of said suspension had children attending the Ware High School this defendant is not advised, but denies that they are debarred from a high school education in this community, since for the same charges as were made by this Board for pupilage in the Ware High School they can find this education in three other colored high schools open to the public in the city of Augusta. Defendants deny the allegations specially pleading that the acts of 1872 and 1877 deny to the colored race equal protection of the law, or that the course and conduct of this Board thereunder is obnoxious to this constitutional inhibition.” The plaintiffs amended their petition, alleging: “ 1st. That ‘ the Payne Institute,’ 1 the Walker Baptist Institute,’ and ‘the Haines Normal and Industrial Institute ’ mentioned in said answer, are purely private and pay educational institutions under sectarian control, and have been in existence for years past and have no connection and never have had any connection whatsoever with the public school system conducted by said Board. 2d. That said Board has no legal right to charge for extending a public high school education to the children of school age of actual residents of said county. 3d. That if a deficiency of means exists for extending a public primary school education to the colored school population of the city of Augusta in said county, said deficiency is due to the illegal action of said Board in appropriating to the white CUMMING v. BOARD OF EDUCATION. 535 Statement of the Case. school population of said city largely more of the public school fund than it is legally entitled to, to the corresponding detriment of the colored school population of said city, and but for such illegal action there would be no such deficiency as said Board avers.” In answer to this amended petition, the Board admitted that the Payne Institute, the Walker Baptist Institute, and the Haines Normal and Industrial Institute mentioned in its answer were private educational institutions under sectarian control and had no connection with the public school system conducted by the defendant Board. But it averred that the impression sought to be conveyed that there was sectarian, denominational teaching in those schools was untrue; that the schools referred to were open to the public generally, and any child of sufficient scholarship and moral character could enter them, whatever his or her religious belief. The Board also asserted its right to charge for tuition in high schools, and .denied that any deficiency of means for extending a public primary school education to the colored school population was due to any action it had taken. The defendant Bohler, the tax collector, demurred to the petition and also filed an answer. The cause having been heard upon the demurrers and pleadings, the court sustained the demurrer of defendant Bohler, and refused to grant any injunction against him as tax collector. But the demurrer of the Board of Education was overruled, and an order was entered restraining the Board from using “ any funds or property now in or hereafter coming into its hands for educational purposes in said county for the support, maintenance or operation of any white high school in said county until said Board shall provide or establish equal facilities in high school education as are now maintained by them for white children for such colored children of high school grade in said county as may desire a high school education or until the further order of the court.” This order was however suspended until the Supreme Court of the State should render its decision in the cause. The plaintiffs did not appeal from the order refusing to 536 OCTOBER TERM, 1899. Mr. Edmunds’ Argument for Plaintiffs in Error. grant an injunction against the tax collector. But the case was carried to the Supreme Court of Georgia by the Board of Education, where the judgment of the Superior Court of Richmond County was reversed upon the ground that it erred in granting an injunction against the Board of Education. And in accordance with that decision the Superior Court upon the return of the cause from the Supreme Court of the State refused the relief asked 'by the plaintiffs and dismissed their petition. The plaintiffs in error complain of the latter order as being in derogation of their rights under the Constitution of the United States. Mr. George F. Edmunds for plaintiffs in error. I. As construed by the Supreme Court of Georgia, the constitution and laws of that State justified the Board of Education in maintaining, at the expense of the plaintiffs, public high schools for white children, and in abolishing and refusing to keep up any similar or equivalent school for the education of colored children. The record shows that the colored high school was necessary for the education of the same class of colored children as that of the white children, for which two public high schools were provided. It shows that there was a sufficient number of colored children receiving the benefits of the colored high school when it was abolished, and that their parents protested against its abolition. It shows that the defendants themselves considered the colored high school necessary by declaring, in connection with their abolition of it, that they would reinstate it “ whenever the Board, in their judgment, could afford it.” II. It may be assumed that the decision of the Georgia Supreme Court, that the constitution and laws of that State warranted the action complained of (whether reviewable here or not) was correct, although it would seem reasonably clear that the opinion of the inferior court was the sound one, unless the constitution and laws of Georgia were designed by their framers to be illusory. III. The question, then, is whether the Board of Education, CUMMING v. BOARD OF EDUCATION. 537 Mr. Edmunds’ Argument for Plaintiffs in Error. under its authority to “ establish schools of higher grade at such points in the county as the interests and convenience of the people may require,” authorized it to establish and maintain the advanced schools for the sole interest of the white children, and to refuse to maintain a similar school for the benefit of the colored children, while (though this makes no difference in principle) the parents of such colored children were being taxed and their money expended to maintain such higher grade white schools ? Although the first section of the eighth article of the constitution of Georgia only made it compulsory that common schools should be established for the elementary branches of an English education, and required the races to be taught separately, the fourth section authorized counties and cities to tax for public schools, and to maintain them out of such taxation. It is under this authority that the public schools in the county of Richmond are carried on. This authorizes the counties and cities to go beyond elementary English education, and to provide, as most civilized States do, for that larger education which teaches not only reading, writing and arithmetic, but those things which lead to the enlargement of mental perceptions, respect for social order, and, indeed, everything that may tend to make the best state of society. It is under this authority that the board of education has undertaken to discriminate distinctly and by name between the two races, and to impose upon one burdens of taxation from which they and their children receive no benefit, for the purpose of giving educational benefits necessary to public interests, to the white children alone. ■ The sole pretence for this discrimination is, as expressly stated by themselves, that they cannot afford it. That is, that all of the public funds applicable to education of the higher grade in the public schools shall be devoted to the benefit of the white children, and none of it applied for the similar education of colored children. The excuse stated being that the Board does not wish to increase taxation which they have the power to impose (then only one fourth of one cent per $100), and that it can make good use of the money that would otherwise be expended in support of a colored high 538 OCTOBER TERM, 1899. Mr. Edmunds’ Argument for Plaintiffs in Error. school, for the elementary education of some colored children for which the common school houses at that time furnished no accommodation. It is not anywhere hinted by the defence that there were not adequate accommodations for all the white children, both in the common and high schools; from which it conclusively follows that the public funds have been devoted to the complete provision for all the white children, when they had not for the colored children. The Board of Education was, under the law as construed, the master of all this. Every provision, therefore, having been made for the full education of the white children, and inadequate provision having been made for the elementary education of the colored children, the Board abolishes the colored high school because it cannot afford to maintain it. This, it is earnestly submitted, is not the reasonable exercise of such discretion as the Board may have lawfully had, or the exercise of any discretion at all. It is the arbitrary denial of the equal protection of the laws to these persons of the colored race. It is believed that all the numerous decisions of this court upon this and analogous subjects are agreeable to the foregoing statement. It is unnecessary to refer to more than a very few of them. In Chicago, Burlington dec. Railroad v. Chicago, 166 U. S. 226, it was held that the prohibitions of the Fourteenth Amendment referred to all the instrumentalities of the State, legislative, executive and judicial, and that if any public officer under a state Government deprives another of any right protected by that amendment he violates the Constitution. In Gulf, Colorado dec. Railroad v. Ellis, 165 U. S. 150, 154, it was declared that constitutional provisions of the character herein questioned should be liberally construed, and that the courts should be watchful to guard against any stealthy encroachments thereon, and that otherwise the protecting clauses of the Fourteenth Amendment would be a mere rope of sand, in no manner restraining state action. It declared that classifications and distinctions could not be made arbitrarily. In this case the discrimination was arbitrary, no matter how good the motive of the Board may possibly have been. If such action can be upheld, the Board will forever be CUMMING v. BOARD OF EDUCATION. 539 Mr. Edmunds’ Argument for Plaintiffs in Error. the sole judge of when it can “afford” to give the colored race the same advantage of public education that they tax them to give to the whites. If there is really any life or spirit in the Fourteenth Amendment, such conduct cannot be upheld. In Yick lib v. Hopkins, 118 U. S. 356, this court said that, in spite of what the state court might have thought about it, it would put upon the ordinances of San Francisco an independent construction, and determine whether the proceedings under them were in conflict with the Constitution of the United States or not. In that case the ordinance vested in a board of supervisors the discretion of granting or withholding their assent to the use of wooden buildings as laundries, and so forth. The state court held that that was a discretion not judicially reviewable. This court denied the proposition, and held that while the ordinance gave absolute power to the board, the power was not confided to it as a discretion of regulation, but was to be exercised at their mere will, and that, so construed, it could not be maintained when exercised so as to produce inequality. This court held that the Fourteenth Amendment required “ not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; ” and. that “ no greater burdens should be laid upon one than are laid upon others in the same calling and condition.” This court held that the principles upon which our Constitution fests do not “mean to leave room for the play and action of purely personal and arbitrary power.” And it held that where the law gives a discretion, that discretion cannot be used, under color of regulating, to subvert or injuriously restrain a right, and that such questions are always open to judicial inquiry. To use the language of this court in that case, the Board has, in the exercise of its authority, applied and administered the law with “ an unequal hand, so as practically to make unjust and unethical discriminations between persons in similar circumstances, material to their rightsand that in such case “ the denial of equal justice is still within the prohibitions of the 540 OCTOBER TERM, 1899. Mr. Edmunds’ Argument for Plaintiffs in Error. Constitution.” The case of Plessy v. Ferguson, 163 U. S. 537, chiefly relied upon by the other side, is entirely consistent with and supports our contention. The case itself determined that a state law requiring separate railway carriages for the two races was valid, if provision were made for equal accommodations for both races, and the case stood upon the solid and indisputable ground that neither race was discriminated against in any particular, and it quoted with approval the opinion of the Court of Appeals of New York, that “ when the Government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized,” and so forth. In Strauder v. West Virginia, 100 U. S. 303, this court held that the Fourteenth Amendment “ was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the General Government in that enjoyment whenever it shall be denied by the States.” The court further said that the words of the amendment, while prohibitory, “contained by necessary implication a positive immunity of right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored— the exemption from legal discriminations implying inferiority in civil society, lessening the security of their rights which others enjoy,” and so forth. IV. It will thus be seen that the fact that the school Board had authority to establish and maintain public high schools at convenient places, and so forth, gives them no authority to establish and maintain public high schools for one race and to refuse to maintain them for the other, when the conditions and necessities for that advanced education existed in one race as well as the other in the place where their authority was to be exercised. These necessities and conditions are by the evidence of the board itself proved to exist. The necessity for the public high schools for the colored children is, I repeat, distinctly confessed, and the only pretence of excuse for abolishing it, as stated by the Board itself, was CUMMING v. BOARD OF EDUCATION. 541 Opinion of the Court. that it could employ the money necessary for its maintenance more advantageously by devoting it to common school purposes, while it could continue to employ all the money necessary to carry on the two white high schools in the same place. The mere statement of the case, in view of what this court has already decided, condemns such conduct, no matter how good the motive or how ethically wise the action of the Board may have been had it not been restrained by the fundamental provisions of the Constitution, although it is not by any means admitted that the motive of the Board was purely in the public interest further than to avoid raising taxes to carry on the colored schools as well as the white ones, and although it is denied that the action was ethically wise. V. In respect of the contention stated in the brief on the other side that Bohler, the tax collector, should have been made a party to this writ of error, it is sufficient to say that the petition as to him was dismissed by the Superior Court at the hearing, and that no appeal was taken by the petitioners. And it appears that when the case was remitted from the Supreme Court of Georgia that only the Board of Education had judgment for its costs, Bohler having disappeared, as before stated. And it further appears that it was only the Board of Education that took exceptions and carried the cause to the Supreme Court of the State. The whole relief sought against Bohler was denied, and the petitioners acquiesced. Bohler therefore ceased to be any longer interested in the cause or a party thereto. His presence as a party was not in any respect essential or proper for that part of the controversy remaining. It may be said with all respect to the learned counsel on the other side that his point as to parties is an imaginary technicality, even if the record does not show a formal dismissal of Bohler. See Gumbel v. Pitkin et als, 113 U. S. 545. Mr. Joseph Gandhi and Mr. Frank II. Miller for defendant in error. Mr. Justice Hart.an, after stating the facts as above, delivered the opinion of the court. 542 OCTOBER TERM, 1899. Opinion of the Court. This writ of error brings up for review a final order made in the Superior Court of Richmond County, Georgia, in conformity to a judgment rendered in the Supreme Court of the State. That order, it is contended, deprived the plaintiffs in error of rights secured to them by the Fourteenth Amendment to the Constitution of the United States. The Supreme Court of Georgia after stating in its opinion that counsel for the petitioners did not point out in his brief what particular paragraph of the Fourteenth Amendment was violated, said: “ If it be the first, he does not point out what clause of that paragraph is violated, whether the privileges or immunities of citizens of the United States are abridged, whether his clients are deprived of life, liberty or property without due process of law, or whether his clients are denied the equal protection of the laws. It is difficult, therefore, for us to determine whether this amendment has been violated. If any authority had been cited, we could from that have determined which paragraph or clause counsel relied upon, but as he has left us in the dark we can only say that in our opinion none of the. clauses of any of the paragraphs of the amendment, under the facts disclosed by the record, are violated by the Board. There is no complaint in the petition that there is any discrimination made in regard to the free common schools of the county. So far as the record discloses, both races have the same facilities and privileges of attending them. The only complaint is that these plaintiffs, being taxpayers, are debarred the privilege of sending their children to a high school which is not a free school, but one where tuition is charged, and that a portion of the school fund, raised by taxation, is appropriated to sustain white high schools to which negroes are not admitted. We think we have shown that it was in the discretion of the Board to establish high schools. It being in their discretion, they could, without a violation of the law or of any constitution, devote a portion of the taxes collected for school purposes to the support of this high school for white girls and to assist a county denominational high school for boys. In our opinion, it is impracticable to distribute taxes equally. The appropn- CUMMING v. BOARD OF EDUCATION. 543 Opinion of the Court. ation of a portion of the taxes for a white girls’ high school is not more discrimination against these colored plaintiffs than it is against many white people in the county. A taxpayer who has boys and no girls of a school age has as much right to complain of the unequal distribution of the taxes to a girls’ high school as have these plaintiffs. The action of the Board appears to us to be more a discrimination as to sex than it does as to race. While the Board appropriates some money to assist a denominational school for white boys and girls, it has never established a high school for white boys, and, if the contention of these plaintiffs is correct, white parents who have boys old enough to attend a high school have as much right to complain as these plaintiffs, if they have not more. Without, therefore, going into an analysis of the different clauses of the Fourteenth Amendment of the Constitution of the United States, we content ourselves by saying that, in our opinion, the action of the Board did not violate any of the provisions of that amendment. It does not abridge the privileges or immunities of citizens of the United States, nor does it deprive any person of life, liberty or property without due process of law, nor does it deny to any person within the State the equal protection of its laws.” The constitution of Georgia provides: “ There shall be a thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expenses of which shall be provided for by taxation or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races. ” Art. 8, § 1. It was said at the argument that the vice in the common school system of Georgia was the requirement that the white and colored children of the State be educated in separate schools. But we need not consider that question in this case. No such issue was made in the pleadings. Indeed, the plaintiffs distinctly state that they have no objection to the tax in question so far as levied for the support of primary, intermediate and grammar schools, in the management of which 544 OCTOBER TERM, 1899. Opinion of the Court. the rule as to the separation of races is enforced. We must dispose of the case as it is presented by the record. The plaintiffs in error complain that the Board of Education used the funds in its hands to assist in maintaining a high school for white children without providing a similar school for colored children. The substantial relief asked is an injunction that would either impair the efficiency of the high school provided for white children or compel the Board to close it. But if that were done, the result would only be to take from white children educational privileges enjoyed by them, without giving to colored children additional opportunities for the education furnished in high schools. The colored school children of the county would not be advanced in the matter of their education by a decree compelling the defendant Board to cease giving support to a high school for white children. The Board had before it the question whether it should maintain, under its control, a high school for about sixty colored children or withhold the benefits of education in primary schools from three hundred children of the same race. It was impossible, the Board believed, to give educational facilities to the three hundred colored children who were unprovided for, if it maintained a separate school for the sixty children who wished to have a high school education. Its decision was in the interest of the greater number of colored children, leaving the smaller number to obtain a high school education in existing private institutions at an expense not beyond that incurred in the high school discontinued by the Board. We are not permitted by the evidence in the record to regard that decision as having been made with any desire or purpose on the part of the Board to discriminate against any of the colored school children of the county on account of their race. But if it be assumed that the Board erred in supposing that its duty was to provide educational facilities for the three hundred colored children who were without an opportunity in primary schools to learn the alphabet and to read and write, rather than to maintain a school for the benefit of the sixty colored children who wished to attend a high CUMMING v. BOARD OF EDUCATION. 545 Opinion of the Court. school, that was not an error which a court of equity should attempt to remedy by an injunction that would compel the Board to withhold all assistance from the high school maintained for white children. If, in some appropriate proceeding instituted directly for that purpose, the plaintiffs had sought to compel the Board of Education, out of the funds in its hands or under its control, to establish and maintain a high school for colored children, and if it appeared that the Board’s refusal to maintain such a school was in fact an abuse of its discretion and in hostility to the colored population because of their race, different questions might have arisen in the state court. The state court did not deem the action of the Board of Education in suspending temporarily and for economic reasons the high school for colored children a sufficient reason why the defendant should be restrained by injunction from maintaining an existing high school for white children. It rejected the suggestion that the Board proceeded in bad faith or had abused the discretion with which it was invested by the statute under which it proceeded or had acted in hostility to the colored race. Under the circumstances disclosed, we cannot say that this action of the state court was, within the meaning of the Fourteenth Amendment, a denial by the State to the plaintiffs and to those associated with them of the equal protection of the laws or of any privileges belonging to them as citizens of the United States. We may add that while all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land. We have here no such case to be determined; and as this view disposes of the only question which this court has jurisdiction to review and decide, the judgment is Affirmed, VOL. CLXXV—35 546 OCTOBER TERM, 1899. Opinion of the Court. PEABODY v. UNITED STATES. APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS. No. 50. Argued October IT, 1899. — Decided January 8, 1900. This court holds in this case that there is no proof of any grant to the petitioner or those under whom he claims, and affirms the judgment of the court below in favor of the United States. The claim of adverse possession (by those under whom the petitioner claims) down to the time of the occupation by the United States, is not sustained by the proof. The statement of facts will be found in the opinion of the court. J/r. #. W. Clancy for appellant. Mr. Matthew G. Reynolds for appellee. Mr. Solicitor General was on his brief. Mr. Justice Peckham delivered the opinion of the court. This is an appeal from a judgment of the Court of Private Land Claims dismissing the petition of the appellant and rejecting his claim to some 114,000 acres of land in the Territory of New Mexico, on the ground that it had not been sustained by satisfactory proof. The petitioner in the . court below in his petition for confirmation of the grant stated that on the 23d of February, 1824, Jose Rafael Samora, a citizen and resident of Ojo Caliente, on behalf of himself and twenty-five other persons, citizens of the Republic of Mexico, and residents of said district in the Territory of New Mexico, presented his petition for a grant to them of the tract therein described and called the Vallecito de Lovato, and the appellant’s petition alleged that the governor granted the prayer, made the grant of land therein asked for, and directed the alcalde to place the grantees in possession, and that on September 22,1824, the alcalde did place the grantees in juridical possession of the land, and executed his certificate thereof, which was presented to and PEABODY v. UNITED STATES. 547 Opinion of the Court. approved by the governor and delivered to the grantee, Jose Rafael Samora, for himself and his associates. Various other facts were set up in the petition to show title in the petitioner, which it is not necessary to state. The answer of the Government put the facts in issue, and the case duly came on for trial. The following papers were put in evidence on the trial by the appellant: (1.) “ Translation of Muniments. “ Hon. constitutional alcalde of Abiquiu, Francisco Trujillo: “I, Jose Rafael Samora, citizen and resident in the district of Ojo Caliente, together with twenty-five individuals of the same district, appear before you with the greatest respect and humility and in due form of law, and state, sir, that there being sufficient land in the Vallecito of Lovato to give us in possession we now ask that in the goodness of your heart you grant us the same, for we have not any place wherein to plant grain for harvesting, whereby we think the others, the residents of said district, will receive no injury. “Wherefore we humbly request your honor, as our protector and as a lover of our country, to grant us said possession, whereby we will receive favor and benefit. “Abiquiu, February 23, 1824. For all those stated. Jose Rafael Samora.” “I do hereby certify that the above is true and the land applied for, public, and I do not recognize those applying for the same as property holders. Francisco Trujillo.” (2.) (Unsigned Order.) “The land applied for by Jose Rafael Samora, together with the twenty-five accompanying individuals in his petition, in virtue of your report, you may proceed to place them in possession, in order that they may not lose time in their labor until the necessary formalities can be had, which cannot be verified at this time, the excellent deputation not being in session to whom the matter pertains. 548 OCTOBER TERM, 1899. Opinion of the Court. “ I charge you to treat those unfortunate persons with consideration on placing them in possession, charging for your labor according to their wants and not more than the fee bill allows. “ God and (liberty). February 27, 1824. (Ko Signature.) “ To the alcalde of Abiquiu.” (3.) The act of possession. This paper is signed by Francisco Trujillo, constitutional alcalde of the proper district, and after declaring that by virtue of the decree of Bartolome Baca, actual political chief of the province, given at Santa Fe on the 27th of February, 1824, on the petition presented by Jose Rafael Samora and his associates, requesting that there be adjudged to them a tract of public land, the alcalde states: “ And having examined the said land and seeing its extent and proportions, the parties interested being present and others who joined them according to the list they presented, and all having agreed among themselves that at no time there should be interruptions or differences among them; ” he thereupon measured off to each one a certain quantity of land and placed them in possession. The alcalde also states that he charged them to endeavor to fortify themselves for their own defence, etc.; and as to the lands of which he then delivered possession, he gave them “ to understand that as new colonists they shall exert themselves, not being authorized to exchange, sell or alienate the same until they shall have acquired title or have sufficient time to do so.” This paper is dated the 22d of September, 1824. It is signed by Francisco Trujillo, but it does not appear when the possession was delivered, the certificate being dated at Abiquiu, which is many miles from the Vallecito, the location of the grant. There was also put in evidence the act of possession in what is called the Petaca grant, dated March 25, 1836, in which it is stated that it is bounded on the west “ by the boundary of the Vallecito grant,” which it is claimed by the appellant is an admission of the existence of the grant in question. PEABODY v. UNITED STATES. 549 Opinion of the Court. Evidence in regard to possession was also introduced. Upon the question whether the papers thus proved showed any grant of lands, the counsel for the Government contended that they did not purport to grant any land or pass any interest therein, but gave only a permissive possession preliminary to a grant which was never obtained. Without discussing the various other objections which were raised against the confirmation of this alleged grant to the petitioner, we are of opinion that the above objection was well taken, and that there was no sufficient evidence of any grant whatever. The petition signed by Samora, in behalf of himself and twenty-five other individuals of the same district, asks that the alcalde may give them possession of the land, as they have no other place wherein to plant grain for harvesting, and they think that the others, the residents of the district, will receive no injury, and therefore they request that the alcalde, as their protector and as a lover of their country, may grant them such possession, etc. At the very commencement, therefore, we find that the petition was not one for the granting of title, but simply one for the granting of possession to land, in order that they might plant their grain for harvesting. Trujillo certifies that the statement in the petition is true and the land applied for is public, and that he does not recognize those applying for the same as property holders. Then comes the unsigned order directing the alcalde of Abiquiu to “ proceed to place them (Samora, with the twenty-five accompanying individuals named in the petition) in possession, in order that they may not lose time in their labor until the necessary formalities can be had, which cannot be verified at this time, the excellent deputation not being in session to whom the matter pertains.” Then the certificate of Trujillo, which is termed by the appellant “ the certificate of the delivery of juridical possession of the lands to the petitioner,” shows on its face that it was not the ordinary delivery of juridical possession under a grant of title to land, but that it was a mere placing of the petitioner in possession under a license of the authorities accompanied by a distinct statement that the peti- 550 OCTOBER TERM, 1899. Opinion of the Court. tioner and his associates were not “authorized to exchange, sell or alienate the lands until they shall have acquired title or have sufficient time to do so.” These three papers, which form the basis of the appellant’s claim of title, fail when examined to show any title whatever in him. There is in these papers no evidence of any grant of title to these lands to Samora or his associates. It may be that he and his associates hoped thereafter to obtain title, but it was certainly not granted by these papers. This unsigned order and the act of possession, when taken together, show that the possession that was delivered and taken was preliminary to the title which was afterwards to be acquired, and there is no proof that such title ever was thereafter obtained. In De Haro v. United States, 5 Wall. 599, 627, the decree of the government was, in that case, held to be a naked license to occupy the land provisionally, and hence was not entitled to confirmation under the act of Congress of March 3,1851. The distinction between the effect of a license to enter upon lands uncoupled with an interest therein,'and a grant of some title, right or interest in lands, is stated by Mr. Justice Davis in that case, in which he said: “ A grant passes some estate of greater or less degree, must be in writing, and is irrevocable unless it contains words of revocation; whereas a license is a personal privilege, can be conferred by parol or in writing, conveys no estate or interest, and is revocable at the pleasure of the party making it.” It is urged that the fact of the possession by Samora and his associates, and their heirs, grantees, etc., down to the time of the American occupation of the country, is strong — if not conclusive—evidence of the making of a grant in accordance with the original claims of those petitioners, and that a grant should therefore be presumed. The possession must be adverse, exclusive and uninterrupted, and inconsistent with the existence of title in another. Its character in this case, however, appears from the papers not to have been adverse to the government, nor to have originated with a claim of title under a grant; and from the time it was delivered up to the time of the American occupation, PEABODY v. UNITED STATES. 551 Opinion of the Court. whatever possession there was, was entirely consistent with that which was given by the above act, a merely permissive occupation, and therefore we cannot presume that it was subsequently changed to that of a possession under a grant, without any evidence of the existence of the grant other than that derived from the papers put in evidence, which show that such possession was permissive or by license only. As is stated in Serrano v. United States, 5 Wall. 451, 461, “ There is no adverse holding here, but the possession was a permissive one, and consistent with the proprietary interests of Spain and Mexico; and the fact that those governments did not terminate the possession, which was a mere tenancy at will, cannot create an equity entitled to confirmation. Serrano held under a license to occupy, and that license could be revoked at any time. The failure to revoke it cannot change the original character of the possession into an adverse one. If Serrano had entered into possession under a claim of right, and had title papers, though imperfect, he might say that the length of his possession entitled him to the favorable consideration of the court. Not so, however, where he had no interest in the land, never applied for any, either to Spain or Mexico, and was content with a permission to occupy it for the purposes of pasturage.” This was the character of the possession of the grantors of the petitioner. Indeed, whilst under the civil law, including the Spanish law, one may prescribe beyond his title, he cannot do so contrary to the title. See Zeringue v. Uarang, 17 La. 349; Neel v. Hibard, 30 La. Ann. 309. One of the difficulties in the petitioner’s case is that the act of possession absolutely negatives the giving of it under a grant passing any interest in the lands. That act stated that those who are placed in possession are not “ authorized to exchange, sell or alienate the same until they shall have acquired title,” etc. A grant, therefore, would not be presumed even upon proof of exclusive and uninterrupted possession, so long as it was entirely consistent with the evidence produced in the case, which shows that it originated in a mere license, and there is no proof from which it can be claimed that its character changed from that of a licensee to that of 552 OCTOBER TERM, 1899. Opinion of the Court. one in possession adversely and under a claim of title by a grant from the Government. The fact that a subsequent grant to other parties of other lands was therein bounded by “ the boundary of the Vallecito grant,” is no evidence of a change of the character of the possession already mentioned. The petitioner being in possession, any particular boundary thereof may very well have been taken as a boundary for a grant to other parties subsequently made of other lands, and the description of the land in the other grant, that it was bounded by the Vallecito grant, is inadequate as proof of the legal existence of that latter grant. Upon the ground that there is no proof of any grant in this case, we are of opinion that the judgment of the Court of Private Land Claims was right, and it is, therefore, Affirmed. CHAVEZ v. UNITED STATES. APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS. No. 14. Argued October 17,18,1899. — Decided December 22,1899. In Mexico, in 1831, a departmental assembly or territorial deputation had no power or authority to make a grant of lands; and the fact that the governor presided at a meeting of the territorial deputation at the time such a grant was made, makes no difference, as the power to make the grant was exclusively in the governor, and the territorial deputation had no jurisdiction in the matter. The statement of the case will be found in the opinion of the court. Mr. Frank W. Clancy for appellant. Mr. Matthew G. Reynolds for appellee. Mr. Solicitor General was on his brief. Mr. Justice Peckham delivered the opinion of the court. This is an appeal from a judgment of the Court of Private Land Claims refusing to confirm the title of the appellant to CHAVEZ v. UNITED STATES. 553 Opinion of the Court. some 5000 acres of land in New Mexico, about one league from the Manzano grant. The title is evidenced by a grant by the territorial deputation of New Mexico, made in 1831, and the first question in the case relates to the authority of that body to make the grant. It is also contended that if the territorial deputation did not have the power to make the grant, and that power rested with the governor of the department, his presence in the territorial deputation as its ex officio president when the grant was made, and, so far as the record shows, his not protesting but acquiescing in its action, was equivalent to and the same as a grant made by himself in his official character as governor. It is further stated that by reason of the action of the governor in writing the letter dated December 22,1831, and hereinafter set forth, that officer ratified and confirmed the grant, and in effect made it his own. It appears from the record that on February 28, 1831, citizen Nerio Antonio Montoya petitioned the honorable corporation of Tome, and asked it that it would append to his petition its own report to the most excellent deputation, so that that body should grant him the land described in the petition. The corporation of Tome, on the 19th of March, 1831, granted the prayer of the petitioner, and adopted a resolution which provided that his petition should “ go before the most excellent territorial deputation, which, as the authority competent, may accede to the donation of the land prayed for by the said petitioner without injuring the pastures and watering places for the passers-by.” The resolution was accordingly forwarded to the territorial deputation, and that body on November 12, 1831, took action as follows: “ (Extract from record of proceedings of the territorial deputation, session of November 12, 1831.) “ The foregoing record having been read and approved, a petition of citizen Nerio Montoya, a resident of Valencia, in which he asks for the donation, for agricultural purposes, of a tract of vacant land in the Manzano within the limits of the Ojo de en Medio as far as the rancheria, was taken up and the 554 OCTOBER TERM, 1809. Opinion of the Court. report of the respectable corporation council of Tome, in which it is set forth that there is no objection to the concession of the said land, having been heard it was ordered that it be granted. ***** “ The session was adjourned. “ Santiago Abreu, President. (Rubric.) “Juan Rafael Ortiz. (Rubric.) “Anto. Jose Martinez. (Rubric.) “Jose Manl. Salazar. (Rubric.) “Teodosio Quintana. • (Rubric.) “ Ramon Abreu, Secretary. (Rubric.) ” In accordance with this action, the following direction by the deputation, signed by its secretary, was given the alcalde of the proper jurisdiction : “ Santa Fe, November 12, 1831. “The honorable the deputation of this territory, having received the report of the constitutional council of Tome, appended to this petition, has resolved in this day’s session to grant the land prayed for by the petitioner, charging the alcalde of said jurisdiction to execute the document that will secure the grantee in the grant hereby made to him. “Abreu, Secretary P The alcalde thereupon executed a document which, after reciting that, “ In obedience to the decree of the most excellent deputation of this territory made under date of November 12 of the current year on the margin of the petition which, under date of February 28, the citizen Nerio Antonio Montoya, resident of this said jurisdiction, presented to this honorable council, and on which petition is recorded the report made by this council, in accordance with which report its excellency has deemed it proper to accede to the petition of Montoya, granting him full and formal possession of the tract he prayed for,” etc., declared that “ Montoya, whenever he may choose or think best to do so, may notify me to proceed with him to the locality to place him in possession of the property CHAVEZ v. UNITED STATES. 655 Opinion of the Court. granted him, with all the customary formality,” etc. This was dated December 7, 1831, and signed by the alcalde. On December 12, in the same year, the same alcalde, “in compliance with the provision made by this most excellent deputation of this territory and the notification given me by the citizen Nerio Antonio Montoya,” proceeded with Montoya to the tract of land granted him and placed him in possession thereof, the act being signed by the alcalde. There was also put in evidence on the trial of the action in the court below, on the question of ratification, the following : “ Office of the Political Chief of New Mexico. “ By your official communication of the 20th instant, I am advised of your having executed the decree of the most excellent deputation granting to the citizen Nerio Antonio Montoya a tract of land. “ But in regard to the inquiry you make of me, as to how much your fee should be, I inform you that I am ignorant in the premises, and that you may, if you choose to do so, put the question to the assessor (asesor), who is the officer to whom it belongs, to advise the justices of first instance in such cases. “ God and Liberty. Santa Fe, December 22,1831. “Jose Antonio Chavez. “To.Aiderman Miguel Olona.” Various mesne conveyances were put in evidence on the trial, showing the transfer to the appellant of whatever title Montoya had to the land described, and it was then admitted that the appellant herein has succeeded to all the rights of the original grantee, if any, in this case. Evidence of possession under this grant was also given. The court below held that the departmental assembly or territorial deputation had no power or authority to make a grant of lands at the time the grant in this case was attempted to be made, and that the fact that the governor may have presided at the meeting at the time the action was taken made no difference, as the power to make the 556 OCTOBER TERM, 1899. Opinion of the Court. grant was exclusively in the governor, and the territorial deputation had no jurisdiction in the matter. The claim was, therefore, rejected. We think that in thus deciding, the court below was right. We refer to some of the cases which show the territorial deputation did not have the power to make a grant, but only the power to subsequently approve it. In United States v. Vallejo, 1 Black, 541, it was held that the Mexican law of 1824 and the regulations of 1828 altered and repealed the Spanish system of disposing of public lands, and that the law and the regulations from the time of their passage were the only laws of Mexico on the subject of granting public lands in the territories. It was also held that the governor did not possess any power to make grants of public lands independently of that conferred by the act of 1824 and the regulations of 1828. Mr. Justice Nelson, who delivered the opinion of the court in that case, refers to the various sections of the law of 1824, and also to the regulations of November, 1828, for the purpose of showing that the governors of the territories were authorized to grant vacant lands within their respective territories with the object of cultivation or settlement, and that the grants made by them to individuals or families were not to be definitively valid without the previous consent of the departmental assembly, and when the grant petitioned for had been definitively made, a patent, signed by the governor, was to be issued, which was to serve as a title to the party. This case did not decide that the territorial deputation could not make a valid grant, because the grant was made by the governor, but the various extracts from the law and regulations indicate very plainly that the authority to initiate a grant of public lands existed in the governor alone and not in the assembly. In United States v. Vigil, 13 Wall. 449, it was held that departmental assemblies (territorial deputations) had no power to make a grant. In his argument, at the bar, counsel for this appellant contended that the territorial deputation had lawful power and CHAVEZ v. UNITED STATES. 557 ‘ Opinion of the Court. authority to make the grant to Montoya, and in order to maintain that proposition stated that it was necessary to discuss the effect of the decision of this court in United States v. Vigil. He claimed that what was said as to the lack of power in the territorial deputation to make a grant was not necessary to the decision of the court in that case, and that such expressions as were therein used regarding the question would not, therefore, constitute a precedent now binding on this court. In Vigil’s case there was a petition to the departmental assembly, through the governor of New Mexico, asking for a grant of land which in fact amounted to over two million acres, the grantees binding themselves, if the grant were made, to construct two wells for the relief and aid of travellers, and to establish two factories for the use of the State, and to protect them from hostile invasion. The governor transmitted the petition to the assembly, but declined to recommend that favorable action should be taken upon it. The assembly, notwithstanding this refusal, granted the tract on January 10, 1846, for the purpose of constructing wells and cultivating the land, etc., and the question was as to the validity of this grant. The opinion was delivered by Mr. Justice Davis, who stated that it had been repeatedly decided by this court that the only laws in force in the territories of Mexico, for the disposition of public lands, with the exception of those relating to missions and towns, were the act of the Mexican congress of 1824 and the regulations of 1828. In the course of his opinion he said: “ These regulations conferred on the governors of the territories, ‘ the political chiefs,’ as they are called, the authority to grant vacant lands, and did not delegate it to the departmental assembly. It is true the grant was not complete until the approval of the assembly, and in this sense the assembly and governor acted concurrently, but the initiative must be taken by the governor. He was required to act in the first instance — to decide whether the petitioner was a fit person to receive the grant, and whether the land itself could be granted without prejudice to the public or individuals. In case the 558 OCTOBER TERM, 1899. Opinion of the Court. information was satisfactory on these points, he was authorized to make the grant, and at the proper time to lay it before the assembly, who were required to give or withhold their consent. They were in this respect an advisory body to the governor, and sustained the same relation to him that the Senate of the United States does to the President in the matter of appointments and treaties.” A subsequent portion of the opinion dealt with the case upon the assumption that the grant had been made by the governor, and even in that case it was said the grant would have been invalid, because it violated the fundamental rule on which the right of donation was placed by the law ; that the essential element of colonization was wanting, and that the number of acres granted was enormously in excess of the maximum quantity grantable under the law. This in nowise affected the prior ground upon which the opinion was based, that the departmental assembly had no power to make the grant. That was the essential and material question directly involved in the case, while the second ground mentioned was based upon an assumption that, even if the governor had made the grant, it would still have been void for the reason stated. The court did not base its decision that the departmental assembly had no power to make the grant because of its enormous extent. It held that the assembly had no power to make any grant, no matter what its size. It is, as we think, a decision covering this case. In Hayes v. United States, 170 U. S. 637, the grant was by the territorial deputation of New Mexico, and it was stated by Mr. Justice White, speaking for the court, that “it cannot be in reason held that a title to land derived from a territory which the territorial authorities did not own, over which they had no power of disposition, was regularly derived from either Spain or Mexico or a State of the Mexican nation.” No presumption that the territorial deputations had authority to make grants can arise from the fact that in some instances those bodies assumed to make them. The case in this respect bears no resemblance to United States v. Pereheman, 7 Pet. 51, 96, or to United States v. Clarice, 8 Pet. 436, 447, 453. In those cases it was not denied that the governor had authority m CHAVEZ v. UNITED STATES. 559 Opinion of the Court. some circumstances to make grants, and it was therefore held that a grant made by him was prima facie evidence that he had not exceeded his power in making it, and that he who denied it took upon himself the burden of showing that the officer by making the grant had transcended the power reposed in him. There is in the case before us no evidence that the territorial deputation had the power in any event to make grants other than the fact that in some instances it assumed to make them. The cases heretofore decided in this court, and some of which have been above referred to, show that such fact is inadequate to prove the existence of the authority. It is, however, urged that the record of the action of the territorial deputation in regard to this grant shows that the governor and ex officio president of the deputation was present when the deputation decided to make the grant as petitioned for, and that his being so present and attesting the action of the deputation was equivalent to the making of the grant himself as governor. We do not think so. He did not assume to make any grant whatever, and certainly none in his character of governor. It does not even appear beyond doubt that he was present when the deputation made the grant. His signature is perfectly consistent with a mere authentication of the previous action of that body. The petition of Montoya was addressed primarily to the corporation of Tome, and he requested that corporation to send his petition, approved by it, to the deputation to make him a grant of the land described in his petition. Acting under that request, the corporation of Tome sent his petition to the “ most excellent territorial deputation,” and asked that body to accede to the donation of the land prayed for. In conformity to the petition, the territorial deputation itself made the grant. The fact that the governor, being ex officio a member of the deputation, signed as president of that body the record of the act of the deputation, is not the equivalent of a grant by him in his official character of governor, nor does such act bear any resemblance to a grant by him. Mo one on reading the record would get the idea that the gov- 560 OCTOBER TERM, 1899. Opinion of the Court. ernor was himself making the grant or that he thereby intended so to do. It does not even show that he was in favor of the grant as made by the deputation. His signing the record constituted nothing more than an authentication of the act of the deputation. It purported to be nothing else. He might have properly signed the record if in fact he had voted against the grant, and had been opposed to the action of the assembly. He might have signed the record as an authentication, and yet have been absent at the time of the action of the assembly. In any event, it was his signature as an ex officio member or presiding officer of the deputation, attesting or perhaps assenting to its action, and it was not his action as governor making a grant in that capacity. The signature by the secretary alone, to the instrument (above set forth, dated November 12, 1831) which recites the previous action of the deputation, and charges the alcalde of the jurisdiction to execute the document which will secure the grantee in the grant, is simply a direction to the alcalde, and has no materiality upon this branch of the case other than as confirming the view that the grant was solely that of the deputation. We cannot hold that when the power was given under the laws of Mexico to the governor to make grants of lands, he in any manner exercised that power or performed an act equivalent to its exercise, by presiding ex officio at a meeting of the territorial deputation which made a grant of lands in conformity to a petition solely addressed to it, and by authenticating as president the action of the deputation in deciding that the grant should be made. The two positions, president of the deputation and governor, are separate and distinct, and the action of a governor merely as president of the deputation, and of the nature above described, is not in any sense and does not purport to be his separate and independent action as governor, making a grant of lands pursuant to a petition addressed to him officially. As governor he might refuse the grant upon a petition addressed to himself, when as president of the deputation he might sign the record authenticating its action in regard to a petition CHAVEZ v. UNITED STATES. 561 Opinion of the Court. addressed solely to that body. And it is obvious from the wording of the record that the president of the deputation was not assuming to act as governor upon a petition addressed to himself, but only as the president of the deputation. It might have been that he acquiesced in the assumption by the deputation of the right to make the grant, but his act of signing the record cannot be tortured into a grant or as the equivalent of a grant by himself. It is further urged that there has been what amounts to a grant by the governor by reason of his letter of December 22, 1831, signed by him and above set forth, thus, as is claimed, ratifying the grant of the deputation and making it his own. The only evidence that the person who signed the letter was the governor at that time is the heading of the letter, “ Office of the Political Chief of New Mexico.” It will be also noted that the person signing it is not the same one who signed the record of November 12, 1831, as president of the deputation. But assuming that Chavez was governor in December, 1831, when he signed the letter, he therein simply acknowledged the receipt of the official communication of the alcalde, in which that officer reports that he had executed the decree “ of the most excellent deputation, granting to the citizen Nerio Antonio Montoya a tract of land.” In reply to the question as to how much the alcalde’s fee should be, he answered, that he was ignorant of the premises, and advised the alcalde to put the question to the assessor, the officer to whom it belonged to advise the justices in the first instances in such cases. Now what does the governor ratify by this letter ? Nothing. The contention in favor of the grant, based upon the letter, is, that assuming the governor had power to make the grant, it was his duty when he learned from the report of the alcalde that one had been made by the deputation, and that possession had been delivered under it, to protest against and to deny the power of the deputation to make such grant, and unless he did so, his silence was evidence of the fact that he not only approved the act of the deputation in making the grant, but that he approved it as his own, and that such VOL. CLXXV—86 562 OCTOBER TERM, 1899. Opinion of the Court. approval was the same as if the governor had himself made the grant, and in substance and effect it was his grant. This contention we think is not founded upon any legal principle, and is in itself unreasonable. The writer of the letter is not the same person who signed the record of the proceedings of the deputation. The report of the alcalde gave him the information which, it is true, he may have had before, that the deputation had assumed the power to grant the land. His protest as to the legality of such action would not have altered the fact that it had occurred, while on the other hand his silence might simply be construed as evidence of his unreadiness at that time to dispute, or possibly of his belief in the validity of the action of the deputation. Or his silence might have been simply the result of his approval of the act of the alcalde in obeying the commands of the deputation, while he thought it was not the proper occasion upon which to contest or deny the validity of the grant which the deputation had actually made. Many reasons for his silence might be suggested, but the claim that it equalled in law a positive grant by the governor is, as we think, untenable. While such silence is entirely consistent with other views that might have been held by the governor, it certainly cannot properly be ascribed, as a legal inference from the facts stated, to his desire to make the grant himself, nor could it be said that his desire (if he had it) was the legal equivalent of an actual grant. His knowledge that another body had assumed to make a grant is not equivalent to the making of the grant himself, and he was the person who alone had power to make it. There is nothing in the letter which aids the plaintiff herein. Finally, it distinctly appears that the possession of the parties is insufficient in length of time to prove a valid title. In United States n. Chaves, 159 U. S. 452, the possession was under the claim of a grant made by the governor of New Mexico to the alleged grantees. The grant had been lost, but it had been seen and read by witnesses, and its existence had been proved by evidence sufficient, as was stated in the opm- CHAVEZ v. UNITED STATES. 563 Opinion of the Court. ion, (page 460,) to warrant “ the finding of the court below that the complainant’s title was derived from the Republic of Mexico, and was complete and perfect at the date when the United States acquired sovereignty in the territory of New Mexico, within which the land was situated.” We do not question the correctness of the remarks made by Mr. Justice Shiras in regard to evidence of possession and the presumptions which may under certain circumstances be drawn as to the existence of a grant. We do not deny the right or the duty of a court to presume its existence in a proper case, in order to quiet a title and to give to long continued possession the quality of a rightful possession under a legal title. We recognized and enforced such rule in the case of United States v. Chaves, decided at this term, in which the question is involved. We simply say in this case that the possession was not of a duration long enough to justify any such inference. There is no proof of any valid grant, but on the contrary the evidence offered by the plaintiff himself and upon which he bases the title that he asks the court to confirm, shows the existence of a grant from a body which had no legal power to make it, and which, therefore, conveyed no title whatever to its grantee, and the evidence is, as given by the plaintiff himself, that it was under this grant alone that possession of the lands was taken. We cannot presume (within the time involved in this case) that any other and valid grant was ever made. The possession of the plaintiff and of his grantors up to the time of the treaty of Guadalupe Hidalgo, in 1848, had not been long enough to presume a grant. Or espin v. United States, 168 U. S. 208; Hayes v. United States, 170 U. S. 637, 649, 653 ; Hays v. The United States, ante, 248. The possession subsequently existing, we cannot notice. Same authorities. We think the judgment of the court below should be Affirmed. 564 OCTOBER TERM, 1899. Syllabus. NORTHERN PACIFIC RAILROAD COMPANY v. AMACKER. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 61. Argued October 24,1899. — Decided January 8, 1900. By the act of July 2, 1864, c. 217, a grant of public land was made to the Northern Pacific Railroad Company to aid in the construction of its rail-•road and telegraph line. A small tract of this grant is the subject of this action of ejectment. In October, 1868, one Scott made a preemption declaratory statement regarding this tract, and settled upon it in 1869, but abandoned it in the same year and never returned. In October, 1872, he filed an amended statement excluding the land in controversy. On February 21, 1872, the company filed its map of general route through Montana. On the 22d of April, 1872, the Commissioner of the General Land Office, by direction of the Secretary of the Interior transmitted to the local land office in Montana a diagram showing the location of the road in the district in which the subject of controversy was situated, and directed the withholding from sale or location, preemption or homestead entry, of the odd-numbered sections within forty miles of the general route of the railroad. On May 3, 1872, McLean, a citizen of the United States, duly qualified to enter land, made a homestead entry of the tract in controversy in this case. On May 6, 1872, the diagram and order sent April 22 were received at the local land office and filed there. In the autumn of 1872 McLean placed a small building on the land in which he spent his nights until the spring of 1873 when he removed and never after resided there or made improvements. Proceedings were taken to cancel his entry, and it was cancelled in September, 1879. In July, 1882, the plat of definite location was filed, and the land in controversy is within forty miles of the general route, and within twenty miles of the line of definite location. In August, 1882, McLean died, leaving a will devising this land to his widow, which was duly probated. In March, 1883, McLean’s widow applied, as his widow under the act of June 15, 1880, c. 227, 21 Stat. 237, to purchase the tract. Held: (1) That whatever rights Scott might have acquired by his original declaratory statement, were lost by his amended declaratory statement ; (2) That McLean had all the rights which attached to a valid entry, and might have proceeded under the act of June 15, 1880, c. 227, 21 Stat. 237, to make the purchase thereby authorized; (3) That his widow, having had this tract devised to her by her husband’s will, duly probated, was entitled to purchase the tract as the devisee of her husband, although her application for it was made as his widow. NORTHERN PACIFIC RAILROAD v. AMACKER. 565 Statement of the Case. This was an action of ejectment commenced on May 8,1891, in the Circuit Court of the United States for the District of Montana by the railroad company, plaintiff in error, to recover possession of the south one half of the northwest one quarter of section 17, township 10 north, range 3 west of the principal meridian of Montana. A trial was had, which resulted in a judgment for the plaintiff. 53 Fed. Kep. 48. This judgment was reversed by the Court of Appeals for the Ninth Circuit, 15 U. S. App. 279, and the case remanded for a new trial. The new trial was had before the Circuit Court upon an agreed statement of facts, and resulted in a judgment for the defendants, which judgment was affirmed by the Court of Appeals, and thereupon the plaintiff sued out this writ of error. The important facts are these: On February 21, 1872, the railroad company filed in the office of the Commissioner of the General Land Office its map of general route through the then Territory (now State) of Montana. On April 22, 1872, the Commissioner, by direction of the Secretary of the Interior, transmitted to the local land office in Montana a diagram showing the portion of the line of general route extending through that district, and directed the withholding from sale or location, preemption or homestead entry, the odd-numbered sections within forty miles of such general route. This diagram and order were received and filed in the local office on May 6, 1872. On May 3, 1872, three days before the order was received at the local land office, William McLean, a citizen of the United States and duly qualified to enter the land, made a homestead entry on the tract in controversy. In that fall he moved a small building onto the land and spent his nights there until the spring of 1873, when he married, removed from the premises, and never thereafter resided or made any improvements thereon. Proceedings were taken to cancel his homestead entry, and upon September 11, 1879, it was cancelled. On July 6, 1882, the railroad company filed a plat of the definite location of that portion of its line adjacent to the premises, and thereafter duly constructed its road on that line. The land is within forty miles of the line of general route, and also within twenty miles of the line of definite location and 566 OCTOBER TERM, 1899. Statement of the Case. construction. McLean died in August, 1882, leaving a will by which he devised the tract to his widow. This will was duly admitted to probate. On April 21,1876, Congress passed an act, c. 72,19 Stat. 35, the first section of which is — “Sec. 1. That all preemption and homestead entries, or entries in compliance with any law of the United States, of the public lands, made in good faith, by actual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office, of the district in which such lands are situated, or after their restoration to market by order of the General Land Office, and where the preemption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto.” And on June 15, 1880, it passed another act, c. 227, 21 Stat. 237, the second section of which is — “ That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing may entitle themselves to said lands by paying the government price therefor, and in no case less than one dollar and twenty-five cents per acre, and the amount heretofore paid the Government upon said lands shall be taken as part payment of said price: Provided, this shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws.” On March 15, 1883, the widow of William McLean applied under this last act for the purchase of the tract. Her application was made as widow and not by virtue of any right given by the will of her husband. Her application was contested by the railroad company but sustained by the Commissioner of the General Land Office, and afterwards by the NORTHERN PACIFIC RAILROAD v. AMACKER. 567 Opinion of the Court. Secretary of the Interior, and on his decision a patent was duly issued to her. Whereupon this suit was brought to test the title conveyed by such patent. Mr. James B. Kerr for plaintiff in error. Mr. C. IF. Bunn was on his brief. No appearance for defendant in error. Me. Justice Brewer, after stating the case, delivered the opinion of the court. The contest in this case is between one claiming under a homestead entry and a company claiming under a grant in aid of a railroad. It was long ago said by this court that “ the policy of the Federal Government in favor of settlers upon public lands has been liberal. It recognizes their superior equity to become the purchasers of a limited extent of land, comprehending their improvements, over that of any other person,” Clements v. Warner, 24 How. 394, 397; and in a later case, that “ the law deals tenderly with one who, in good faith, goes upon the public lands, with a view of making a home thereon.” Ard v. Brandon, 156 U. S. 537, 543. There is no real hardship in enforcing this rule, for if the individual seeking to maintain his homestead entry fails by reason of any defect he has no recourse on the Government for the fees he has paid or for any compensation for the time and labor he has expended, while on the other hand the general provision of railroad land grants is to the effect that if the title to any tract within the place limits fails the company may reimburse itself by a selection within the indemnity limits. It is not therefore strange that the rulings of the land department, as well as of the courts, have been uniformly favorable to the individual contesting with a railroad company the right to a particular tract of land. Yet this would never justify an ignoring of the clear rights of the company, for the purpose of Congress in the grant must be recognized and made effective in every case to which the grant applies. 568 OCTOBER TERM, 1899. Opinion of the Court. On October 5, 1868, and prior to the filing of the map of general route, there was, as appears from the agreed statement, a preemption declaratory statement made by William M. Scott. In 1869 he settled upon the tract, built a house and resided in it, but in the fall of that year abandoned the land, moved to Helena, and never returned. On October 14, 1872, he filed an amended preemption declaratory statement wholly excluding the land in controversy and substituting other land. Whatever right Scott may have acquired by his original declaratory statement was clearly lost by his amended declaratory statement. Indeed, it had undoubtedly lapsed long before. Northern Pacific Railway v. De Lacey, 174 U. S. 622. We need, therefore, only concern ourselves with the action of McLean. He did not make his homestead entry prior to the filing of the map of general route, but did before notice thereof was received in the local land office, and it is not disputed by counsel for the railroad company that if he had perfected that entry the act of 1876 would have operated to confirm his title. But the contention is that the act only applies when, as it reads, “the preemption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels;” and it is urged that, as the agreed statement shows that McLean abandoned the land in 1873, and thereafter never complied with the requirements of the homestead law, he was not in a condition to claim any right to the land, because under the law in force at the time he made his original entry the land was not subject to entry, Buttz v. Northern Pacific Railroad, 119 U. S. 55, 72, and he could claim nothing under the act of 1876, because he did not comply with the homestead laws, or file proper proofs of any compliance therewith. In other words, it said that the land was not subject to homestead entry when he entered it, and that his entry was not made valid by the act of 1876; and therefore that the act of 1880 has no application to this case. The writer of this opinion is much impressed with the force of these contentions, but a majority of the court hold that NORTHERN PACIFIC RAILROAD V. AMACKER. 569 Opinion of the Court. they give too much force to the letter of the statutes, and do not carry out their real spirit. They are of opinion that the effect of the act of 1876 was to validate all otherwise regular preemption and homestead entries made prior to the time when the notice of the withdrawal was received at the local land office, although such entries were made after the time when the map of general route was filed in the office of the Secretary of the Interior and the order of withdrawal made; that the withdrawal authorized by the sixth section of the act making the land grant to the Northern Pacific Railway Company (13 Stat. 365, 369) did not vest in the company any title to the lands within the withdrawal limits, but only operated by legislative declaration and subsequent executive action to withdraw those lands from homestead or preemption entries; that the right of the railroad company to any tract only became vested when the line of definite location was filed, and that up to that time Congress had full power to order a cancellation of the withdrawal or to make any disposition of lands within those limits which it saw fit; and that this act of 1876, rightfully construed and in accordance with the spirit of Congressional dealings with individual homesteaders and preemptors, is to be taken as a legislative enactment that no entry was to be considered invalidated by reason of the filing of the map of general route if it was made before notice of the withdrawal was received at the local land office. If this be the true construction of this act, then McLean had all the rights which attached to a valid entry, and might have proceeded under the act of 1880 to make the purchase thereby authorized. Before, however, the act of 1880 was passed his entry had been cancelled by reason of a failure to comply with the requirements of the homestead law in occupation, proofs and payment of the final fees. Indeed, he could not have made the proofs because he had abandoned the land. But the act of 1880 was passed before the railroad was definitely located adjacent to this land, and it was the opinion of the Circuit Court of Appeals, which is approved by a majority of this court, that its effect was to except the tract from the grant 570 OCTOBER TERM, 1899. Opinion of the Court. to the Northern Pacific. That grant was of land to which “the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from preemption or other claims or rights at the time the line of said road is definitely fixed.” Counsel for the railroad company contend that this right of McLean to purchase this tract was no other or different than the right of any duly qualified citizen of the United States to purchase any tract of public lands, and that as this right had not been exercised at the time the line of definite location was fixed, it could not be said that at that time any right had attached. But we think it is not a true construction of the land laws that a specified right given to a limited class to take by purchase particular tracts is in any just sense the equivalent of the general right of all citizens to purchase public lands. It is not a strained but a reasonable construction to hold that Congress by this act of 1880, “ appropriated ” these particular tracts, thus covered by homestead entries, even of an outlawed class, for the benefit of those homesteaders, and that they were no longer to be counted among the public lands of the United States subject to the grant to the railroad company. One other question is presented by counsel for plaintiff in error. The right given by the act of 1880 is to the entrymen and persons to whom their rights have been transferred by “ bona fide instruments in writing.” It is contended that a widow cannot avail herself of the benefit' of that statute because she does not take by any bona fide instrument in writing. It is true that the application to the land office upon which the patent was issued was based upon her right as widow, and it may be questionable whether a widow is within the scope of that act; but the agreed statement of facts shows that McLean by will devised this tract to her, and that the will was duly probated; so that she held a right not simply as widow, but as devisee, taking under a bona fide instrument in writing, and it certainly cannot operate to defeat her right under that instrument that the land department recognized her right as widow. For these reasons the judgment of the Circuit Court of Appeals is Affirmed. BLACKBURN v. PORTLAND GOLD MINING CO. 571 Statement of the Case. BLACKBURN v. PORTLAND GOLD MINING COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. No. 54. Argued and submitted October 18, 1899. —Decided January 8,1900. The provision in Rev. Stat. § 2326 for the trial of adverse claims to a mining patent “ by a court of competent jurisdiction,” does not relate to any particular court, state or Federal; but it was the intention of Congress in this legislation to leave open to suitors all courts competent to determine the question of the right of possession. A controversy between rival claimants under that and the previous section can be properly determined by a state court, if the usual conditions of. Federal jurisdiction do not exist, and the judgment of the Supreme Court of a State in such case cannot he reviewed by this court, simply because the parties were claiming rights under a Federal statute. The court does not undertake to say that no case can arise under this legislation, which turns upon a disputed construction, and therefore presents a question essentially Federal in its nature. This was an action brought on August 27, 1897, in the Circuit Court of the United States for the District of Colorado, by William H. Blackburn, a citizen of the State of Colorado against the Portland Gold Mining Company, a corporation of the State of Iowa, and W. S. Stratton, a citizen of the State of Colorado. It was alleged in the complaint that the amount in dispute in the cause exceeded, exclusive of interest and costs, the sum of two thousand dollars; that the suit was of a civil nature at common law, and arose under the laws of the United States ; that it was an adverse suit, and a suit arising under the provisions of sections 2325 and 2326, Revised Statutes of the United States, and is what is known as a suit in support of an adverse claim; that the defendant, W. S. Stratton, had applied for a patent for a portion of the Fairplay Lode mining claim, survey lot No. 9331, under and by virtue of the provisions of section 2325, and that the plaintiff Blackburn, under and by virtue of section 2326, had filed his adverse claim and protest 512 OCTOBER TERM, 1899. Statement of the Case. against the entry of said portion of said Fairplay claim, upon the ground that a part thereof was held and owned by the plaintiff as a part and parcel of the Eacho Lode mining claim; that said W. S. Stratton, on or about the 4th day of February, 1897, had made application in the United States land office at Pueblo, Colorado, for a patent on said portion of said Fairplay Lode mining claim under said section 2325, and that at the time he made his said application he was not the real owner of said portion of Fairplay Lode mining claim, neither did he have any interest or title whatsoever therein; that long prior to said time the said Stratton had by good and sufficient deed conveyed all his right, title and interest in and to said claim to the Portland Gold Mining Company, defendant, and for .that reason the plaintiff brought this action against the said the Portland Gold Mining Company jointly with said Stratton; that on February 1, 1897, and ever since, the plaintiff was and is the owner of and in actual possession of the Eacho Lode mining claim, 1500 by 300 feet, situate in the Cripple Creek mining district, El Paso County, State of Colorado, and that plaintiff has the legal right to occupy and possess the same by virtue of a full compliance with the local rules and regulations of miners in said mining district and of the laws of the United States and of the State of Colorado, and by preemption, discovery and location thereof as a lode mining claim located on the public domain of the United States; that on February 4, 1897, the defendant wrongfully and unlawfully entered into and upon a parcel of the said Eacho Lode mining claim described as follows, to wit: All that part of said claim which is intersected by the exterior lines of survey No. 9331, known as the Fairplay Lode mining claim, as shown by plat marked B, filed on July 28, 1899, in the land office of the United States at Pueblo, Colorado, with the adverse claim of plaintiff against the entry of said survey lot for patent; that the defendant has ever since wrongfully withheld possession of said parcel of Eacho Lode mining claim from the plaintiff, to his damage in the sum of one thousand dollars; that this suit is brought in support of said adverse claim within thirty days after the filing of said adverse claim, and that plaintiff BLACKBURN v. PORTLAND GOLD MINING CO. 573 Counsel for Parties. has necessarily disbursed and expended the sum of one thousand dollars for plats, abstracts and copies of papers filed in said land office with said adverse claim, and also a reasonable counsel fee, to wit, two hundred dollars for the expense of preparing his said adverse claim. The plaintiff prayed for a judgment that he is the owner and entitled to the possession of and patent, to the abovedescribed parcel of said Eacho Lode mining claim, and for the recovery of the same; for the sum of one thousand dollars damages; for the sum of three hundred dollars expended in behalf of said adverse claim, and for costs of suit. On November 8, 1897, the defendants, The Portland Gold Mining Company and W. S. Stratton, moved the court to dismiss the cause for the following alleged reasons: 1st. That the court has no jurisdiction either of the parties or the subject-matter of said suit: 2d. That both the plaintiff and defendants in said suit are citizens of the State of Colorado, and the same is not one wholly between citizens of different States: 3d. That it does not appear in said complaint that the amount in controversy in said suit is two thousand dollars : 4th. That it appears from said complaint that said suit is one which cannot under the Constitution and statutes of the United States be brought into this court. On December 20, 1897, the court entered judgment dismissing the cause for want of jurisdiction, and signed a bill of exceptions at the request of the plaintiff, and also certified that the said question of jurisdiction of the Circuit Court of the United States was the only one involved in the said cause, and was the sole question upon which said cause was dismissed, and also allowed the present writ of error. Mr. Charles J. Hughes, Jr., for plaintiff in error submitted on his brief. Mr. W. H. Bryant for defendants in error. Mr. C. 8. Thomas and Mr. H. H. Lee were on his brief. 574 OCTOBER TERM, 1899. Opinion of the Court. Mr. Justice Shiras, after stating the case, delivered the opinion of the court. As the court below filed no opinion, we are not distinctly informed upon which of the several grounds alleged the court proceeded in dismissing the cause for want of jurisdiction, and therefore it will be necessary for this court to consider each and all of them. First, then, does the record disclose that the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars ? The allegation in the complaint is “ that the amount in dispute in this cause exceeds, exclusive of interest and costs, the sum of two thousand dollars; ” and it is also made to appear that the matter in dispute is the title to a mining claim, for which, and for damages and expenses amounting to thirteen hundred dollars, the plaintiff demands judgment. The defendants did not think fit to traverse these allegations, but moved to dismiss on the face of the complaint. Upon such a motion, as upon a demurrer, a court will not incline to dismiss for want of jurisdiction unless the facts appearing of record create a legal certainty of that conclusion. Barry v. Edmunds, 116 U. S. 550; Wetmore v. Rymer, 169 U. S. 115. We are not impressed by the criticism that the amount, instead of the matter, in dispute is alleged to have exceeded two thousand dollars. The meaning of such an allegation is clear, and in the absence of any traverse thereof, and of any pretence that, in point of fact, the matter in dispute did not exceed the sum or value of two thousand dollars, we think that the record fairly imports the necessary jurisdictional amount. The next contention, that the Circuit Court could not take jurisdiction because the record did not disclose that the controversy was between citizens of different States, seems to us to have been well founded. The complaint alleged that Stratton, one of the defendants, was a citizen of the same State as the plaintiff. Not only was Stratton named as a party defendant in the complaint, but a summons was sued out against him as such; and the motion to dismiss the complaint was made BLACKBURN V. PORTLAND GOLD MINING CO. 575 Opinion of the Court. in behalf of Stratton as well as of the Portland Gold Mining Company. It is, however, argued that, as it is alleged in the complaint that Stratton had conveyed by deed his interest in the mining claim to the Portland Gold Mining Company, Stratton was a nominal party only, whose presence on the record would not defeat the jurisdiction of the court as between the other parties; and cases are cited in which it has been held that the jurisdiction of the Federal courts will not be defeated by the mere joinder or non-joinder of formal parties. Wormley v. Wormley, 8 Wheat. 421; Wood v. Davis, 18 How. 467; Walden v. Skinner, 101 U. S. 577. But considering the nature of the suit and the relief sought thereby, we are not prepared to hold that Stratton was a purely formal and unnecessary party. It is clear, from the provisions of sections 2325 and 2326, Revised Statutes, that they contemplate a controversy between an applicant for a patent and an adverse claimant. Under the first of these sections Stratton, as the complaint shows, made personal application in the United States land office at Pueblo for a patent. In order, therefore, that a controversy could arise under these sections, Stratton must have complied with the provisions of section 2325 by having located a piece of land and by having filed in the land office an application under oath for a patent, showing compliance, together with a plat and field notes of the claim, made by or under the direction of the United States surveyor general, showing accurately the boundaries of the claim, which shall be distinctly marked by monuments on the ground, and by having posted a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and by filing an affidavit of at least two persons that such notice has been duly posted, and by filing a copy of the notice in the land office. It is quite evident, under these provisions and the allegations of the complaint, that, when Blackburn desired to file an adverse claim, he was informed by the proceedings in the 576 OCTOBER TERM, 1899. Opinion of the Court. land office that Stratton was the applicant for the patent and was asserting his compliance with the statute, and was therefore a proper and necessary party to make defendant. Why he included the Portland Gold Mining Company as a party defendant is not quite evident, but it may be conjectured that he wished to raise some question as to the validity of Stratton’s proceedings in the land office after he had, as alleged, parted with his interest in the claim. However this may be, we are of opinion that Blackburn could not proceed safely and formally to raise an issue by an adverse claim without making the person claiming the patent a party defendant when he instituted his proceedings in court. Nevertheless, even if the Circuit Court could not take jurisdiction of the case because the controversy was not between citizens of different States, it is claimed that the court had jurisdiction because an adverse suit, or suit brought in support of a protest and adverse claim, under the provisions of sections 2325 and 2326 of the Revised Statutes, is a suit aris-ino- under the laws of the United States in such a sense as to o t e confer jurisdiction on a Federal court, regardless of the citizenship of the parties. This presents an important question, one that has been differently answered in the lower courts which have been called upon to decide it. Burke v. The Bunker Hill Man. Co., 46 Fed. Rep. 644 ; Trafton v. Nouges, 4 Sawyer, 178 ; Butter v. Shoshone Mining Co., 75 Fed. Rep. 37; Shoshone Mining Co. v. Rutter, 59 U. S. App. 538. It may be well to quote in full the language of the sections in question: “ Sec. 2325. A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, association or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field notes of the claim or claims in common, made by or under the direction of the United States BLACKBURN v. PORTLAND GOLD MINING CO. 577 Opinion of the Court. surveyor general, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the land office, upon the filing of such application, plat, field notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period. The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyor general that five hundred dollars’ worth of labor has been expended, or improvements made upon the claim, by himself or grantors; that the plat is correct; with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that a plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists ; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. “ Sec. 2326. Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boun- VOt. CLXXV—37 578 OCTOBER TERM, 1899. Opinion of the Court. daries and extent of such adverse claim, and all proceedings, except the publication of notice, and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patent shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever.” The first observation to be made is that Congress did not intend to prescribe jurisdiction in any particular court, state or Federal. “ It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceed- BLACKBURN v, PORTLAND GOLD MINING CO. 579 Opinion of the Court. ings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment.” The natural inference from this language is that the competency of the adjudicating court was not to be determined by the mere fact that the mining claims in controversy consisted of lands the title to which was in the United States. If that fact alone were to be decisive no other than a Federal court would have been mentioned. We think the intention of Congress, in this legislation, was to leave open to suitors all courts competent to determine the question of the right of possession. If the parties to the controversy were citizens of different States, and if the matter in dispute exceeded the sum or value of two thousand dollars, then the claimant might elect to commence proceedings in a Federal or in a state court, because either would be competent to determine the question of the right of possession. But if the usual conditions of Federal jurisdiction did not exist, that is, if there was no adverse citizenship, and if the matter in dispute did not exceed two thousand dollars, then the party claimant could proceed in a state court. This court has frequently been vainly asked to hold that controversies in respect to lands, one of the parties to which had derived his title directly under an act of Congress, for that reason alone presented a Federal question. Thus, in Romie v. Casanova, 91 U. S. 379, which was an action brought to recover the possession of certain lands in the city of San Jose, the question to be determined was, which of two parties had actually obtained a grant of the particular premises in question. The title of the city had originated before the cession of California to the United States. But this court said: “ The title of the city was not questioned. Even if it depended upon the treaty of Guadalupe Hidalgo and the several acts of Congress to ascertain and settle private land claims in California, the case would not be different. Both parties admit that title, and their litigation extends only to the determination of the rights which they have severally acquired under it.” Accordingly the writ of error to the Supreme Court of California was dismissed for want of jurisdiction. 580 OCTOBER TERM, 1899. Opinion of the Court. Again, in McStay v. Friedman, 92 U. S. 723, where, in ejectment for a part of the lands confirmed to the city of San Francisco by an act of Congress, the validity and operative effect of which were not questioned, this court held that it had no jurisdiction to review the judgment of the Supreme Court of California, saying: “ No Federal question was involved in the decision of the Supreme Court. The city title was not drawn in question. The real controversy was as to the transfer of that title to the plaintiffs in error; and this did not depend upon the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States.” Gold Washing and Water Co. v. Keyes, 96 U. S. 199, was a suit in equity in a state court of California, and brought on petition into the Circuit Court of the United States on the allegation that its determination involved the construction of certain laws of the United States affecting rights in public and mineral lands. The Circuit Court remanded the case to the state court on the ground that no real or substantial controversy, properly within the jurisdiction of a Federal court, appeared to be involved. That judgment of the Circuit Court was affirmed by this court in an opinion of Mr. Chief Justice Waite, a portion of which was as follows: “ The attempt to transfer this cause was made under that part of section 2 of the act of 1875, which provides for the removal of suits ‘ arising under the Constitution or laws of the United States.’ In the language of Chief Justice Marshall, a case ‘ may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends upon the construction of either? Cohens v. Yirginm, 6 Wheat. 379. Or when ‘ the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sustained by the opposite construction? Osborn v. Bank of United States, 9 Wheat. 822. * * * * * “In this petition the defendants set forth their ownership, by title derived under the laws of the United States, of certain valuable mines, that can only be worked by the hydraulic process, which necessarily requires the use of the BLACKBURN v. PORTLAND GOLD MINING CO. 581 Opinion of the Court. channels of the river and its tributaries in the manner complained of; and they allege that they claim the right to this use under the provisions of certain specified acts of Congress. They also allege that the action arises under, and that its determination will necessarily involve and require the construction of, the laws of the United States specifically enumerated, as well as the preemption laws. They state no facts to show the right they claim, or to enable the court to see whether it necessarily depends upon the construction of the statutes. . . . The statutes referred to contain many provisions; but the particular provision relied on is nowhere indicated. A cause cannot be removed from a state court simply because, in the course of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. The decision of the case must depend upon that construction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved. . . . Before, therefore, a Circuit Court can be required to retain a cause under this jurisdiction, it must in some form appear upon the record, by a statement of facts, in legal and logical form, such as is required in good pleading, that the suit is one which ‘ really and substantially involves a dispute or controversy ’ as to a right which depends upon the construction or effect of the Constitution, or some law or treaty of the United States.” What is meant by the provision in section 2326, that the question of the right of possession should be determined by a court of competent jurisdiction, was thus spoken of in Cham-^rs v. Harrington, 111 U. S. 350: “ It is apparent that the statute requires a judicial proceeding in a competent court. What is a competent court is not specifically stated, but it undoubtedly means a court of general jurisdiction, whether it be a state court or a Federal court; and, as the very essence of the trial is to determine rights by a regular procedure in such court, after the usual methods, which rights are dependent upon the laws of the United Hates, we see no reason why, if the amount in controversy is 582 OCTOBER TERM, 1899. Opinion of the Court. sufficient in a case tried in a court of the United States, or a proper case is made on a writ of error to a state court, the judgment may not be brought to this court for review, as in other similar cases.” This statement is not inconsistent with the cases herein previously cited, as the right to review the judgment of a state court is said to be limited to a proper case having been made, clearly implying that some Federal question should be involved, and that a mere controversy as to the right of possession would not make such a proper case; for otherwise every case arising under section 2326 would be a proper case. In Iron Silver Mining Co. v. Campbell, 135 U. S. 286, 299, Mr. Justice Miller in discussing the scope of these sections, said: “It is true that there are no very distinctive words declaring what kind of adverse claim is required to be set up as a defence against the party making publication; but throughout the whole of these sections and the original statute from which they were transferred to the Revised Statutes, the words ‘ claim ’ and ‘ claimant ’ are used. This word is, in all legislation of Congress on the subject, used in regard to a claim not yet perfected by a title, from the Government by way of a patent. And the purpose of the statute seems to be that where there are two claimants to the same mine, neither of whom has yet acquired the title from the Government, they shall bring their respective claims to the same property, in the manner prescribed in the statute, before some judicial tribunal located in the neighborhood where the property is, and that the result of this judicial investigation shall govern the action of the officers of the land department in determining which of these claimants shall have the patent, the final evidence of title, from the Government.” The ruling in Bushnell v. Crooke Mining Co., 148 U. S. 682, is directly applicable to the present case. There a writ of error brought to this court a judgment of the Supreme Court of the State of Colorado. The suit was in ejectment brought by the Crooke Mining Company in a state court against Bushnell, to recover possession of a certain portion of the surface BLACKBURN v. PORTLAND GOLD MINING CO. 583 Opinion of the Court. location of a mining claim on Ute Mountain, and grew out of conflicting and interfering locations of mining claims. The claim of the latter was first located, but when the company applied for a patent Bushnell filed an adverse claim to a portion of the same location, and thereafter, under section 2326 of the Revised Statutes, and within the time prescribed therein, commenced his action in the state court. In the complaint it was alleged that the plaintiff was the owner of the Annie Lode mining claim, and that defendants had, at a certain date, entered upon and ever since wrongfully held possession of a part of said claim, specifically described, and that the action was in support of plaintiff’s adverse claim to such portion of the surface location. The question presented on the trial of the controversy arose out of conflicting and interfering locations, and the court gave and refused certain requests to charge the jury, which appear at length in the report of the case in this court. The trial resulted in a verdict and judgment in favor of the plaintiff. An appeal was taken to the Supreme Court of Colorado, which affirmed the judgment of the lower court. The Supreme Court of Colorado rested its judgment upon the general proposition that the trial court had correctly stated to the jury the principal point in controversy, and had left it properly to them to determine, as a matter of fact, what was the course of the conflicting lodes. The case was then brought to this court and was heard on a motion to dismiss the writ or affirm the judgment. Mr. Justice Jackson, in sustaining the motion to dismiss, said: “It is plainly manifest that neither the pleadings nor the instructions given and refused present any Federal question, and an examination of the opinion of the Supreme Court affirming the action of the trial court as to instructions given, as well as to its refusal to give the instructions asked by the defendants below, fails to disclose the presence of any Federal question. It does not appear from the record that any right, privilege or immunity under the Constitution or laws of the United States was specially set up or claimed by the defendant 584 OCTOBER TERM, 1899. Opinion of the Court. below, or that any such right was denied them, or was even passed upon by the Supreme Court of the State, nor does it appear, from anything disclosed in the record, that the necessary effect in law of the judgment was the denial of any right claimed under the laws of the United States. ’ “ The decision of the Supreme Court of Colorado in no way brought into question the validity or even construction of any Federal statute, and it certainly did not deny to the plaintiffs in error any right arising out of the construction of the Federal statutes. It was said by the Chief Justice, in Cook County n. Calumet & Chicago Canal Co., 138 U. S. 635, 653: ‘The validity of a statute is not drawn in question every time rights claimed under such statute are controverted, nor is the validity of an authority every time an act done by such authority is disputed.’ ” Accordingly the writ of error to the Supreme Court of Colorado was dismissed. The legal import of this decision plainly is that a controversy between rival claimants under sections 2325 and 2326 of the Revised Statutes may be properly determined by a state court, and that the judgment of a state Supreme Court, in such a case, cannot be reviewed by this court simply because the parties were claiming rights under the Federal statute. Colorado Central Consolidated Mining Co. v. Turek, 150 U. S. 138, was brought to this court on a writ of error to the Circuit Court of Appeals for the Eighth Circuit. An action of ejectment by Turek against the mining company for possession of a certain lode mining claim had been tried in the Circuit Court of the United States for the District of Colorado, and determined in the plaintiff’s favor. The case was taken by a writ of error to the United States Circuit Court of Appeals for the Eighth Circuit, and the judgment was there affirmed, and thereupon a writ of error was allowed to this court. The case was here heard on a motion to dismiss on the ground that the suit was between citizens of different States, and that, therefore, under the Judiciary Act of March 3, 1891, the judgment of the Circuit Court of Appeals was final. An attempt was made in argument to sustain the right BLACKBURN v. PORTLAND GOLD MINING CO. 585 Opinion of the Court. of this court to take jurisdiction because, although the suit was between citizens of different States, yet that the solution of the disputed ownership depended upon the construction and application of section 2322 of the Revised Statutes, concerning the dip and apex of lodes, and that hence the suit really and substantially involved a controversy only to be determined by reference to the Federal statute. But this contention did not prevail, and the writ of error was dismissed. While it is true that the conclusion reached was mainly put upon the ground that the record did not disclose affirmatively that any distinctive Federal question was involved, yet, as the record did disclose a controversy between claimants arising under a Federal mining statute, it is a necessary implication of the decision that that fact alone did not render the case one of which the Circuit Court could take jurisdiction irrespective of citizenship, but that other and apt allegations were required showing that the controversy was determinable by one of two conflicting constructions of the Federal statute, and not one of mere fact in which the validity of the statute was not drawn into question. A similar principle was involved in Gillis n. Stinchfield, 159 U. S. 658. That was a suit brought in a state court of California and concerned the ownership of a mining claim. The case was brought to this court, and it was claimed that, as the question in dispute could only be determined by an application of sections 2322 and 2336 of the Revised Statutes of the United States, such a state of facts appearing by the record, there was disclosed a Federal question which, of itself, gave this court jurisdiction to review the judgment of the Supreme Court of the State. But a motion to dismiss the writ of error was allowed. It is true that this court put its judgment on the ground that the judgment of the state Supreme Court was based upon an estoppel, deemed by that court to operate against the plaintiff in error upon general principles of law, irrespective of any Federal question. Still the case is authority for the proposition that controversies in respect to titles derived under the mining laws of the United States may be legitimately determined in the state courts, and that to enable 586 OCTOBER TERM, 1899. Opinion of the Court. this court to review the judgment in such a case it must appear not only that the application of a Federal statute was involved, but that the controversy was determined by a construction put upon the statute adverse to the contention of one of the parties. In Borgmeyer v. Idler, 159 U. S. 408, it was held that the mere fact that the matter in controversy in an action is a sum of money received by one of the parties as an award under the treaty of the United States with a foreign power, providing for the submission of claims against that power to arbitration, does not in any way draw in question the validity or construction of that treaty, so as to confer jurisdiction on this court to review the judgment of a Circuit Court of the United States. In this case Gill n. Oliver, 11 How. 529, 545, was cited, in which a writ of error to the Court of Appeals of Maryland was dismissed because, although the matter in dispute was money derived under a treaty with Mexico, yet such a dispute did not involve any question as to the validity or construction of the treaty, Mr. Justice Grier saying: “Both parties claim money in court; and, in order to test the value of their respective assignments they introduce the history of the claim from its origin. The treaty and award are facts in that history. They were before the court, but as facts and not for construction. If A held land under a patent from the United States or a Spanish grant ratified by treaty, and his heirs or assignees dispute as to which have the best title under him, this does not make a case for the jurisdiction of this court under the twenty-fifth section of the judiciary act. If neither the validity nor the construction of the patent or title under the treaty is contested, if both parties claim under it, and the contest arises from some question without or dehors the patent or treaty, it is plainly no case for our interference under this section. That the title originated in such a patent or treaty is a fact in the history of the case incidental to it, but the essential controversy between the parties is without and beyond it.” It should not be overlooked that sections 2325 and 2326 form a part of a general scheme in reference to the mineral BLACKBURN v. PORTLAND GOLD MINING CO. 587 Opinion of the Court. lands of the United States. That scheme is contained in chapter six of the Revised Statutes of the United States, and includes sections from 2318 to 2352. Some light is thrown upon the intention of Congress, in the particular we are now considering, by other provisions than those expressed in sections 2325 and 2326. Thus section 2319 enacts that “ all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several raining districts, so far as the same are applicable and not inconsistent with the laws of the United States.” Section 2324 provides that “the miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim,” etc. Section 2332 enacts that where claimants “ have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto, under this chapter, in the absence of any adverse claim,” etc. Section 2339 provides that “ whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same,” etc. Without undertaking to say that no cases can arise under this legislation which turn upon a disputed construction, and therefore presenting a question essentially Federal in its 588 OCTOBER TERM, 1899. Syllabus. nature, we hold that clearly where a patent is authorized to be issued to the party in possession, the statutes refer the contest to the ordinary tribunals, which are to determine the rights of the parties without any controversy as to the construction of those acts, but are to be guided by the laws, regulations and customs of the mining district in which the lands are situated. In a case, therefore, like the present, where Federal jurisdiction does not arise because the parties are citizens of different States, and where no question is made as to the meaning and construction of the statutes of the United States, the state courts are to be regarded, within the letter and meaning of section 2326, as courts of “ competent jurisdiction to determine the right of possession.” The judgment of the Circuit Court is therefore Affirmed. Mb. Justice McKenna dissented. Mb. Justice Bbown did not sit in this case, and took no part in its decision. UNITED STATES v. GLEASON. APPEAL FEOM THE C0UET OF CLAIMS. No. 59. Argued December 7, 8, 1899.— Decided January 8,1900. The United States, through an officer of Engineers, contracted with the appellees to excavate rock within a fixed time. The contract contained the following provisions among others: “ If, in any event, the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then in either case the party of the first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party or parties (or either of them) of the second part, and upon the giving of such notice all money or reserved percentage due or to become due to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States ; and the party of the first part shall be thereupon author UNITED STATES v. GLEASON. 589 Statement of the Case. ized, if an immediate performance of the work or delivery of the materials be, in his opinion, required by the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised Statutes of the United States ; provided, however, that if the party or parties of the second part shall, by freshet, ice or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work or delivering the materials at the time agreed upon in this contract, such additional time may in writing be allowed him or them for such commencement or completion as, in the judgment of the party of the first part or his successor, shall be just and reasonable; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.” Held that, under a proper construction of this contract, the right or privilege of the contractors, if they failed to complete their work within the time limited, to have a further extension or extensions of time, depended upon the judgment of the engineer in charge when applied to to grant such extension; and that no allegation or finding is shown in this record sufficient to justify the court in setting aside the judgment of the engineer as having been rendered in bad faith, or in any dishonest disregard of the rights of the contracting parties. This appeal is from a decision of the Court of Claims covering two suits in that court, Nos. 17,782 and 17,783, consolidated and heard and decided as one suit, in which judgment was entered for the plaintiffs. The first suit was on a contract entered into August 4, 1885, between Lieutenant Colonel W. E. Merrill, Corps of Engineers, United States Army, for and on behalf of the United States, and John R. Gleason and George W. Gosnell as partners, for the excavation of 110,000 cubic yards, more or less, of rock, in the improvement of the head of the Louisville and Portland Canal at Louisville, Kentucky, which excavation was called, in this litigation, the Upper Work. The second suit was on a contract entered into January 13, 1887, between Major Amos Stickney, of the Engineer Corps of the United States Army, for and on behalf of the United States, and the firm of Gleason & Gosnell, for the excavation of 124,000 cubic yards of earth and 13,000 cubic yards of rock, more or less, for enlarging the basin near the lower end of the same canal, and called herein the Lower Work. 590 OCTOBER TERM, 1899. Statement of the Case. In the first suit, upon findings of fact and law, there was a judgment in favor of the plaintiffs for retained percentage in the sum of $3011.99, and for net profits which they would have made if they had been allowed to complete the work in the sum of $60,537.50. In the second suit there was a judgment for retained percentage in the sum of $2401, and for net profits, if the contract had been carried on to completion, in the sum of $2827.50. The aggregate judgment in the two cases was for the sum of $68,777.99. There was a motion for a new trial, which was overruled, and also for an amendment of the findings of fact, which was granted in part. Thereupon this appeal was taken. The findings of fact in the suit upon the first contract were as follows: “ I. On August 4,1885, Lieutenant Colonel William E. Merrill, Corps of Engineers, United States Army, for and on behalf of the United States, party of the first part, and John R. Gleason and George W. Gosnell, partners, of the second part, entered into the contract and specifications set out in full with and made a part of the petition herein,- whereby the claimants agreed to commence work on or before August 20, 1885, and make ‘ 110,000 cubic yards, more or less, of rock excavation in the enlargement of the Louisville and Portland Canal,’ as therein provided for, at the rate of 85 cents per cubic yard, and to complete the same on or before December 31, 1886. “Said contract further, and among other things, provided that — “ ‘ If, in any event, the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then in either case the party of the first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party or parties (or either of them) of the second part, and upon the giving of such notice all money or reserved per- UNITED STATES v. GLEASON. 591 Statement of the Case. centage due or to become due to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States; and the party of the first part shall be thereupon authorized, if an immediate performance of the work or delivery of the materials be, in his opinion, required by the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised Statutes of the United States; provided, however, that if the party or parties of the second part shall, by freshets, ice or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work or delivering the materials at the time agreed upon in this contract, such additional time may in writing be allowed him or them for such commencement or completion as, in the judgment of the party of the first part or his successor, shall be just and reasonable; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.’ “II. The season from August, 1885, to December 31, 1886, was favorable in the main for the character of work provided for by the contract, though the claimants were compelled by reason of high water and freshets to suspend their operations a number of times, and by reason of these difficulties, coupled with an insufficient force of men and other means necessary for the performance of the work, they only ‘ completed 14 per cent of their entire work ’ during the contract period, 1| per cent of which was done in 1885. “ HI. In consequence of the claimants’ inability to complete the work within the contract period, as aforesaid, they requested an extension of their contract to December 31, 1887, which was granted on conditions stated in a supplemental contract, as follows: “ ‘ Articles of Agreement. “ ‘ Supplemental articles of agreement entered into this 21st day of January, eighteen hundred and eighty-seven (1887), 592 OCTOBER TERM, 1899. Statement of the Case. between Major Amos Stickney, Corps of Engineers, U. S. Army, of the first part, and John R. Gleason and George W. Gosnell, partners, doing business under the firm name of Gleason & Gosnell, of Louisville, of the county of Jefferson, State of Kentucky, of the second part. “‘This agreement witnesseth that the said Major Amos Stickney, for and in behalf of the United States of America, and the said Gleason & Gosnell, for themselves, their heirs, executors and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other as follows: “ ‘ That the time for completing the contract signed by the said Gleason & Gosnell, August 4th (fourth), eighteen hundred and eighty-five (1885), for rock excavation in the enlargement of the Louisville and Portland Canal, be extended to December 31st (thirty-first), eighteen hundred and eighty-seven (1887), upon the following conditions, viz.: “ ‘ First. That the said Gleason & Gosnell shall so arrange their excavation on the line common to sections 2 (two) and 3 (three) as not to interfere with the government work of contractor Molloy or the work of the contractor for the new wall of the said Louisville and Portland Canal. “ ‘ Second. That should the said Gleason & Gosnell fail to employ a sufficient force, not less than three hundred (300) men, or its equivalent in machinery, to finish their work in the required time, then the officer in charge shall be authorized to perform any of the work in his discretion, and deduct the cost from any money due or to become due the said Gleason & Gosnell.’ “ The foregoing agreement was made subject to approval of the Chief of the Engineers, United States Army, and was thereafter duly approved by the acting Secretary of War. “ IV. The claimants not having completed their contract during the year’s extension thereof as aforesaid, they, on December 31, 1887, requested a second extension of said contract to December 31,1888, for the reasons set forth in their communication of that date, which is as follows: UNITED STATES v. GLEASON. 593 Statement of the Case. “ ‘ Louisville, Ky. Dec. 31^, 1887. “ ‘ Major Amos Stickney, “ ‘ Corps of Engineers, U. S. A. “‘Dear Sir: We respectfully ask an extension of time on our contract for enlarging the Louisville and Portland Canal at the head of the Falls of the Ohio River until the 31st of December, 1888, for the following reasons, to wit: “ ‘ There was so much work being done upon railroads during the last year throughout the State that labor was very hard to get. “‘We used every effort to secure the required amount of labor on our contracts, but found it impossible to do so. We even employed agents in New York and other cities to procure and ship labor to us here, and then found it very difficult to hold the labor we obtained, although we paid more than contractors paid for labor on railroads. Besides, the summer season was excessively hot; so very hot, that for sixty to ninety days, in many instances, the men would work only two or three hours a day. “‘We propose to provide not less than ninety cars of the same capacity as those now used, and a sufficient number of carts and teams in addition, if necessary, to move not less than 640 cubic yards (measured in place) of excavated rock per day of ten hours. “‘We propose to build an additional incline for depositing excavated material, the minimum actual working capacity of both inclines to be not less than 640 cars per day of ten hours. “‘We propose to provide, maintain and operate not less than ten steam drills on the work and to provide and operate a sufficient force of men to excavate and handle at least 640 cubic yards of rock (measured in place) per day of ten hours. “ ‘ The method of carrying on the work will be such as will be approved by the officer in charge. “ ‘ When practicable, during the summer season, we propose to provide and operate an adequate force at night. “ ‘ All additional plant will be obtained and available for use by the time rock excavation can be commenced, and we pro- VOL. CLXXV—38 594 OCTOBER TEEM, 1899. Statement of the Case. pose to bear all extra cost to the United States occasioned by the extension of time for completing our contract.’ “ Which letter was forwarded to the Chief of Engineers with the following communication: “ ‘ U. S. Engineer Office, “ ‘ Louisville, Ky., December 31s£, 1887. “ ‘ The Chief of Engineers, U. S. Army, “ ‘ Washington, D. C. “ ‘ General : I have the honor to forward herewith an application of Gleason & Gosnell for the extension of time for completion of their contract on work of excavating for enlargement of the head of the Louisville and Portland Canal. “ ‘ The work of these contractors during the past season has been exceedingly unsatisfactory. Whilst they have had some difficulties to contend with in procuring labor, they have not conducted their work in a manner to produce the best results, and hardly seemed to comprehend the magnitude of their undertaking. “ ‘ After a number of consultations with the contractors and their principal bondsman, I have, however, concluded that the interests of the government will be best served by an extension of time with the provisions which they have inserted in their application. “ ‘ These provisions call for nearly double the plant heretofore used and the adoption of method of work which will be approved by the engineer in charge; also the bearing of all extra expense to the United States occasioned by the extension of time. With these provisions, I believe the engineer officer in charge will be able to push the work more rapidly than if it were relet to other contractors. I therefore recommend that the time for completing of their contract be extended as requested to December 31, 1888, on condition that the provisions in their application are faithfully carried out.’ “ The extension of the time of said contract to December UNITED STATES v. GLEASON. 595 Statement of the Case. 31, 1888, as requested and recommended, was granted and approved by the Chief of Engineers ‘on condition that the provisions in their application are faithfully carried out,’ of which approval the claimants were notified by the following letter: “ ‘ IT. S. Engineer Office, “ ‘ Louisville, Ky., January Sth, 1883. “ ‘ Messrs. Gleason & Gosnell, “ ‘ Louisville, Ky. “ ‘ Sirs : You are hereby notified that the time for completion of your contract for excavation in enlargement of the head of the Louisville and Portland Canal is extended to December 31, 1888, on condition that the provision in your letter of December 31, 1887, a copy of which is inclosed, shall be faithfully carried out. Any failure to carry out these provisions will terminate your contract. “ ‘ Very respectfully, “‘Amos Stickney, “ ‘ Major of Engineers, U. S. A? “V. The rock to be excavated under the contract was in the river bed in an exposed situation, and was exposed to great force of the river when the latter rose to stages above the top of the government cross dam, which cross dam was 5 feet high, measured by the canal gauge. “VI. Before the contract aforesaid was entered into the engineer in charge prepared specifications for the information of bidders, which were exhibited to the claimants, and on the faith of which they entered into the contract. These specifications (7) contained the provision that the contractor ‘ must begin work within twenty days after notification that his bid has been accepted, unless hindered by high water.’ “ They were advised by the ninth specification so exhibited that their contract would provide ‘ that additional time may be allowed to a contractor for beginning or completing his work in cases of delay from freshets, ice or other force or violence of the elements, and by no fault of his or their own.’ “ VIL The condition of the Ohio River was during the sea- 596 OCTOBER TERM, 1899. Statement of the Case. son of 1888, the period of the last extension, unusual and unprecedented for repeated and continued freshets and high water, overflowing the cross dam aforesaid; in consequence of which freshets and high water the working season of 1888, in the Ohio River at Louisville, Ky., was limited to about thirty-five days, mostly in July and August, as will more fully appear from the official monthly report of the defendants’ officers of the progress of the work (known as section 3) from December, 1887, to December, 1888, as follows: “‘December, 1887. “ ‘ On section 3, Gleason & Gosnell, contractors, very little was done in December, except the removal of loose material which had been left above grade and in getting out machinery in anticipation of closing for the season. The water is several feet deep over both sections.’ ***** “‘March, 1888. “ ‘ The stage of the river has prevented any work being done on the contracts of John Molloy, Gleason & Gosnell, and the Salem Stone and Lime Co.’ ***** “ ‘ April, 1888. “‘Ko work has been done.by the contractors on account of high water in the upper section.’ ***** «‘ May, 1888. “ ‘ No excavation has been made by the contractors for the upper sections on account of high water.’ ***** “‘June, 1888. “ ‘ On section 3, Gleason & Gosnell, contractors, a temporary earth dam has been constructed, the pumps started, and drilling on high points of rock begun. The first blasting was done June 30th.’ ***** “‘July, 1888. “ ‘ On section 3, Gleason & Gosnell, contractors, drilling on high points of rock was continued and a temporary dam o UNITED STATES v. GLEASON. 597 Statement of the Case. earth finished. The pit was pumped out and tracks surfaced. The contractors were run out by high water on the 11th instant and have not resumed.’ ***** “‘August, 1888. “ ‘ On section 3, Gleason & Gosnell, contractors, excavation was continued until the 18th of August, on which date the work was flooded by high water.’ ***** “ ‘ September, 1888. “ ‘ On section 3, Gleason & Gosnell, contractors, no work has been done since the contractors were run out by high water in August.’ ***** “ ‘ October, 1888. “‘On section 3, Gleason & Gosnell, contractors, a temporary • earth dam was begun on October 5th. The contractors’ pump was started on October 9th, and on the 11th the river washed away the dam, since which time no work has been done.’ ***** “‘November, 1888. “ ‘ On section 3, Gleason & Gosnell have done no work since October 11th. The river has been over their section since that date.’ ***** “ ‘ December, 1888. “‘No work has been done by the contractors during the month. The contract of Gleason & Gosnell expired on December 31st.’ ***** “ VIII. During the working season of 1888 the claimants were diligent in the prosecution of work embraced in the contract, in preparing therefor, and in endeavoring to exclude the water and freshets of the river. “ They provided for the additional plant mentioned in their application for extension and had it ready for operation at the beginning of the season of 1888. But there was insufficient 598 OCTOBER TERM, 1899. Statement of the Case. working time to complete the work by December 31, 1888, at the rate of 640 cubic yards for each practicable working day of twenty-four hours, and this from no fault of the claimants during the last extension of their said contract. No act or omission of the claimants during the period of the last extension made it impossible to complete the work by December 31, 1888. “ IX. The force of the defendants’ officer in charge of this same work after December 31, 1888, was, by reason of the overflow of the river, compelled to cease the work of excavation, to wit, in 1889 and 1890, at stages of water at from 6.1 to 6.10 feet, and they did not complete the work in three seasons subsequent to 1888. “X. After the working season of 1888 the claimants, through the personal solicitation of their attorneys, Bodley & Simrall, applied to the engineer in charge for an allowance of additional time for the completion of the work agreed upon in the contract so extended for the reason that they had been, by freshets and force and violence of the elements and by no fault of their own, prevented from completing the work at the time agreed upon in the contract, whereupon the engineer in charge refused to allow such additional time. “ The defendants, nor the engineer officer in charge on their behalf, did not annul or terminate the contract as therein provided for by reason of any delay or for any want of faithfulness or diligence on the part of the claimants in the prosecution of the work thereunder during the period of the last extension of said contract, but based his refusal to further extend the contract, because, as he asserted, the claimants had for a number of seasons failed to complete the work within the times agreed upon. “ No judgment or decision was given by said engineer on the question as to whether the (J. R.) claimants were prevented by freshets and force and violence of the elements during the season of 1888 from completing the work agreed upon within the period limited by the last extension of the contract, nor did he find or decide that the claimants were not so prevented. UNITED STATES v. GLEASON. 599 Statement of the Case. “XI. The amount of the reserved 10 per centum under said contract is $3011.99, and has never been paid by the defendants to the claimants. “ XII. The total amount of rock in the area covered by the contract, as finally estimated by the defendants, was 118,935.22 cubic yards, of which the claimants had removed 35,435.22 cubic yards, leaving unremoved at the end of the season of 1888, 83,500 cubic yards. “ XIII. The cost to the claimants of performing this remaining work, 83,500 cubic yards, would have been $1.25 per cubic yard, and their total loss thereon at the contract price therefor would have been 40 cents per cubic yard, or $33,400. “ XIV. Under the specifications (2), made part of the contract and set out in the petition aforesaid, it is provided that ‘ all material excavated under this contract will be the property of the contractor, and must be disposed of in such manner as not to interfere with navigation, of which the engineer in charge shall be the judge. The contractor is forbidden to desposit any excavated material on canal property without permission.’ “ Every yard of solid rock would have produced, by crushing, yards of broken stone, and upon this basis the remaining rock in the area covered by the contract at the end of the season of 1888 would have produced 125,250 cubic yards of broken stone. “XV. The rock, when excavated and crushed, was a valuable commodity, for which there was a ready market in Louisville at $1.25 per cubic yard. “ XVI. The cost to the claimants of crushing and delivering the rock for the market was 50 cents per cubic yard and the net value to the claimants of the crushed and delivered rock was 75 cents per cubic yard, or $93,937.50, less the loss of $33,400, as set forth in Finding XIII, leaving $60,537.50 as the claimants’ net profit under the contract for the remaining work. “XVII. From the foregoing official reports, as well as from the other facts found herein, the court finds the ultimate fact that the condition of the river was as herein set forth; 600 OCTOBER TERM, 1899. Opinion of the Court. and the time remaining for active work, after deducting the time when it was impossible to do work by reason of the high water and freshets, was insufficient for the completion of the work under the contract within the period of extension, and that it was impossible for the claimants to complete the work within the working time thus remaining.” The findings in the second case were substantially similar. Mr. Special Attorney Gorman for appellant. Mr. Assistant Attorney General Pradt was on his brief. Mr. Temple Bodley and Mr. H. N. Low for appellees. Mr. John G. Simrall was on their brief. Mr. Justice Shiras, after stating the case, delivered the opinion of the court. Gleason & Gosnell, a firm of contractors, entered into agreements with officers of the Engineer Corps of the United States Army, acting for and on behalf of the United States, whereby the former undertook to perform certain specified work within a certain specified time. The work specified was not completed within the time fixed, nor at any time. Nevertheless, the contractors claimed in the court below that they were entitled to recover the contract price for the portion of the work which was actually done, and damages for the uncompleted portion, because, as they alleged, they had been prevented, by no fault of their own, but by freshets, ice and other force and violence of the elements from doing the work within the time stipulated, and had been prevented by the officers of the United States, without just cause and contrary to applicable provisions in the contract, from a subsequent completion of the work. The material questions are determinable by a proper construction of the following clauses contained in the contracts: “ If, in any event, the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, UNITED STATES v. GLEASON. 601 Opinion of the Court. in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then in either case the party of the first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party or parties (or either of them) of the second part, and upon the giving of such notice all money or reserved percentage due or to become due to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States; and the party of the first part shall be thereupon authorized, if an immediate performance of the work or delivery of the materials be in his opinion required by the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised Statutes of the United States; provided, however, that if the party or parties of the second part shall, by freshets, ice or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work or delivering the materials at the time agreed upon in this contract, such additional time may in writing be allowed him or them for such commencement or completion as, in the judgment of the party of the first part or his successor, shall be just and reasonable ; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon. “ The contractor must begin work within twenty days after notification that his bid has been accepted, unless hindered by high water; and within thirty days thereafter his working force must consist of at least 200 men, if working by hand, or the equivalent thereof in case excavating machines are used. If, at any time, the working force be reduced to 150 men or less, the engineer in charge shall, have the right to terminate the contract; and in such case the retained percentage shall be forfeited to the United States. 602 OCTOBER TERM, 1899. Opinion of the Court. “ The contract will expire on the 31st day of December, 1886; but the right is reserved to annul the contract in January, 1886, in case forty per cent of the work covered by the same shall not have been completed on or before the 31st day of December, 1885. The annulment of the contract under the provisions of this paragraph will, however, involve no forfeiture of moneys previously earned.” While we are to determine the legal import of these provisions according to their own terms, it may be well to briefly recall certain well-settled rules in this branch of the law. One is that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless his performance is rendered impossible by the act of G-od, the law, or the other party. Difficulties, even if unforeseen, and however great, will not excuse him. If parties have made no provision for a dispensation, the rule of law gives none — nor, in such circumstances, can equity interpose. Dermott v. Jones, 2 Wall. 15 Cutter v. Powell^ 2 Smith’s Leading Cases, 1, 7th Amer. ed. Another rule is, that it is competent for parties to a contract, of the nature of the present one, to make it a term of the contract that the decision of an engineer, or other officer, of all or specified matters of dispute that may arise during the execution of the work shall be final and conclusive, and that, in the absence of fraud or of mistake so gross as to necessarily imply bad faith, such decision will not be subjected to the revisory power of the courts. Martinsburg Jo Potomac Railroad v. March, 114 U.S. 549 ; Chicago, Santa Fe <&c. Railroad v. Price, 138 U. S. 185. We do not understand that these principles are now called into question, but their applicability is denied; and we are called upon to consider a very acute and ingenious argument, successfully urged in the court below, aiming to show that, in the present case, the controverted matter, to wit, whether the contractors were entitled to a further and additional extension of time, was not left to the determination of the engineer in charge of the work, but is open, under the language of the ao-reement and the facts as found, to be inquired into and determined by the court. UNITED STATES v. GLEASON. 603 Opinion of the Court. The material terms of the contract calling for construction are as follows : . “ The said Gleason & Gosnell shall commence work under this contract on or before the twentieth day of August, 1885, and shall complete the same on or before the thirty-first day of December, 1886. . . . Provided, however, that if the party or parties of the second part shall, by freshets, ice or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work or delivering the materials at the time agreed upon in this contract, such additional time may in writing be allowed him or them for such commencement or completion, as, in the judgment of the party of the first part or his successor shall be just and reasonable.” Passing by, for the present, the fact that several extensions of time were granted by the engineer, and having regard only for the above language, what does it mean ? The construction put upon it by the court below was thus expressed : “In the cases at bar the contracts in terms provide that ‘ additional time may in writing be allowed ’ for the completion of the work if prevented therefrom ‘ by freshets, ice or other force or violence of the elements ’ and by no fault of their own; not that such additional time may or may not be allowed as the engineer in charge may determine, but that ‘such additional time may in writing be allowed’ as in his judgment ‘ shall be just and reasonable.’ The language, taken together, leaves no discretion in the officer except in respect of the additional time to be allowed, and even that, the contract provides, ‘ shall be just and reasonable.’ The claimants in effect agreed that no additional time should be allowed them except on condition that they were prevented from the completion of the work (1) by freshets, ice or other force or violence of the elements, and (2) by no fault of their own-; and to hold, when those conditions are present, that it is within the discretion of the engineer in charge to say whether any or no additional time may be allowed would be to eliminate that mutuality essential in conscionable contracts. “ Hence, taking into consideration the circumstances of this 604 OCTOBER TERM, 1899. Opinion of the Court. case, and to effectuate the intention of the parties gathered from the contracts as a whole, we must hold that the word ‘ may ’ should be construed to mean ‘ shall.’ “ As to what additional time would be just and reasonable he, as the engineer officer in charge, was to determine, not by the exercise of arbitrary power, but by the exercise of a just and reasonable judgment; and any additional time thus allowed would have been final.” We cannot accept this exposition of the language as sound. Rather do we interpret it to mean that, as between the United States and the contractors, the latter were to be relieved from their contract obligation to complete the work within the time limited, only if, in the judgment of the engineer in charge, their failure so to do was occasioned by freshets or other force of the elements, and by no fault of their own; and that, if and when, in his judgment, the failure to complete was, in point of fact, due to the extraneous causes, he was also to decide what additional time should be just and reasonable. In other words, the parties agreed that if the contractors should fail to complete their contract within the time stipulated, they should have the benefit of the judgment of the engineer as to whether such failure was the result of their own fault or of forces beyond their control, and, in the latter event, of his judgment as to what extension of time would be just and reasonable. Obviously the object of the provision in question was to prevent the very state of dispute and uncertainty which would be created if the present contention of the contractors were to prevail. In support of its construction the court below points to a difference in the language between the clause respecting materials which provides that “ the decision of the engineer officer in charge as to quantity and quality shall be final,” and that used in the claim under consideration in which it is not said that the judgment of the engineer shall be final. But it is obvious that, from the very nature of the case, the decision of the engineer in the latter case must be final. The contract fixes the time within which the work must be completed, but provides that, in case failure to complete is providential and UNITED STATES v. GLEASON. 605 Opinion of the Court. without fault, such additional time may be allowed as the engineer may judge to be just and reasonable. As, then, his granting of additional time would be final and irrevocable, so his refusal to allow it was necessarily final. The privilege of procuring an extension of time is conditional on the action of the officer, whether he grant or refuse it. By changing the phrase “ such additional time may be allowed ” into the phrase “ such additional time shall be allowed,” the court below substituted for an appeal to the discretion and decision of the officer, an absolute right to have the question of prevention, whether by freshets or by fault, determined by the courts. The fallacy of such reasoning is obvious; and is pointed out in the case of KiMberg v. United States, 97 U. S. 398. That was a case of a contract between the United States and A, for the transportation by him of stores between certain points, provided that the distance should be ascertained and fixed by the chief quartermaster, and that A should be paid for the full quantity of stores delivered by him. It was not said in terms that the action of the chief quartermaster should be conclusive; and the distance, as ascertained and fixed by him, was less than the usual and customary route. It was said by-Mr. Justice Harlan, delivering the opinion of the court: “ The action of the chief quartermaster cannot, therefore, be subjected to the revisory power of the courts without doing violence to the plain words of the contract. Indeed, it is not at all certain that the government would have given its assent to any contract which did not confer upon one of its officers the authority in question. If the contract had not provided distinctly, and in advance of any services performed under it, for the ascertainment of distances upon which transportation was to be paid, disputes might constantly have arisen between the contractor and the government, resulting in vexatious and expensive, and to the contractor oftentimes, ruinous litigation. Hence the provision we have been considering. Be this supposition as it may, it is sufficient that the parties expressly agreed that distances should be ascertained and fixed by the 606 OCTOBER TERM, 1899. Opinion of the Court. chief quartermaster, and in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the appellant as well as upon the government. The contract, being free from ambiguity, no exposition is allowable contrary to the express words of the instrument.” It was further suggested by the court below, and has been vigorously pressed upon us in the argument, that the engineer in charge was improperly influenced in refusing the third extension asked for, by a consideration of delinquencies in previous years, whereas it is claimed that the extended contracts were, in respect of their several dates, new contracts, the performance or non-performance of which did not depend upon anything done or omitted to be done thereunder prior to the last extension. It may be that, by granting the previous extensions, the right of the Government to forfeit the compensation already earned and withheld under the terms of the contract was abandoned. But to say that the engineer in charge, when applied to for a third extension, may not take in view previous delinquencies and the futility of the extensions theretofore granted, seems to us quite unreasonable. He might well think that his duty to the Government and to the public interested in the early completion of the work forbade a further experiment in that direction. An indefinite succession of extensions was surely not within the contemplation of the contract. We do not wish to be understood to say that it would have been competent for the engineer in charge, if in his judgment the contractors had been duly diligent during the period of the last extension and had acted up to the conditions upon which such extension was granted, to have based his refusal for a further extension upon the sole ground that there had been delinquencies during the prior periods of extension. We mean merely to say that, in a bona fide exercise of the discretion conferred upon him, that officer might properly observe the conduct of the contractors through the entire scope of their past action, in deciding what weight to give to their promises as respected the future, and consider UNITED STATES v. GLEASON. 607 Opinion of the Court. whether previous grants of extension had brought forth such efforts on the part of the contractors as the circumstances required. But was it at all the case that the engineer, in refusing the last application for further extension, based such refusal wholly upon a consideration of prior condoned delinquencies ? Even if we cannot take notice of the affidavit of Major Stickney, contained in this record, in which he states that his refusal to grant a further extension was based upon the failure of the contractors to make proper provisions during the period of the last extension for carrying on their work, and that they had not fulfilled the conditions upon which the time had already been extended, we are permitted, and indeed required, in absence of evidence of bad faith on his part, to presume that he acted with due regard to his duty as between the government and the contractors. The fallacy, as we think, in the position of the court below was in assuming that it was competent to go back of the judgment of the engineer, and to revise his action by the views of the court. This, we have seen, could only be done upon allegation and proof of bad faith, or of mistake or negligence so great, so gross, as to justify an inference of bad faith. But in this case we find neither allegation nor proof. The only allegation in the petition which can be pointed to bearing on this subject is as follows: “That on or about December, 1888, the said Major Amos Stickney refused to plaintiffs the extension of time which they requested, and to which they were rightfully entitled under the contract, by reason of being prevented from completing the same within the time limited by the last extension and renewal thereof, by freshets and by the force and violence of the elements and by no fault of their own, and by reason of damages and hindrances from causes within the control of the United States; and the plaintiffs were thereby prevented from completing the work. And the plaintiffs aver and charge that the said refusal of the said Stickney to extend the time for the completion of the contract was wrongful and unjust, and a breach of the contract.” In other words, the plaintiffs allege that they were pre- 608 OCTOBER TERM, 1899. Opinion of the Court. vented from completing their work by force and violence of the elements and not by any fault of their own, and that the judgment of the engineer in refusing an extension was therefore wrongful and unjust. But as they had agreed, in the contract as we haye construed it, that the engineer was to decide whether the failure to complete was due to the force of the elements or to their fault, their allegation now is that the determination of the engineer was wrongful and unjust, because he decided the submitted issue against them. Of course, such an allegation was wholly insufficient on which to base an attempt to upset the judgment of the engineer. But, even if we pass by the insufficiency of the allegation, we perceive no evidence, or finding based on evidence, which would have sustained a stronger and more adequate allegation. Indeed, no evidence whatever would appear to have been offered to sustain a charge of bad faith or gross mistake equivalent thereto. The court below does indeed say, in the twenty-first finding, that “ no judgment or decision was given by said engineer on the question whether the claimants were prevented by freshets and force and violence of the elements during the season of 1888 from completing the work agreed upon within the period limited by the last extension of the contract, nor did he find or decide that the claimants were not so prevented.” But, as it was expressly alleged in the petition, and was found by the court, that, on an application for a further extension because of interruption occasioned by force of elements and not by any fault of the plaintiff, the engineer did refuse to extend, the statement of the court must mean either that it was necessary for the engineer, in order to give efficacy to his decision, to declare in terms that it was based on a finding of fault on the part of the contractors, or that the conclusion of the engineer did not amount to a decision or judgment, within the meaning of the contract, because the court reached a different conclusion. These are propositions of law and not of fact, and we cannot assent to either of them. Without protracting the discussion, our conclusions are that, under a proper construction of the contracts in this case, the CANADA SUGAR REFINING CO. v. INSURANCE CO. 609 Syllabus. right or privilege of the contractors, if they failed to complete their work within the time limited, to have a further extension or extensions of time, depended upon the judgment of the engineer in charge when applied to to grant such extension and that no allegation or finding is shown in this record sufficient to justify the court in setting aside the judgment of the engineer as having been rendered in bad faith, or in any dishonest disregard of the rights of the contracting parties. These views lead to a reversal of the judgment of the court below in so far as it sustains the claim to recover damages for profits expected to inure to the plaintiffs if they had been permitted to complete the work. As no actual damage or loss was definitely shown to have been suffered by the Government by reason of the non-comple-tion of the work, and as no forfeitures were declared at the time of the several extensions, and may therefore be deemed to have been waived, we affirm that portion of the judgment of the court below allowing a recovery for the retained percentages of the compensation for work actually done and accepted. Accordingly the judgment of the Court of Claims is hereby Reversed and the cases are remitted to that court with directions to enter judgment in accordance with this opinion. Mr. Justice Harlan, Mr. Justice Brown and Mr. Justice White do not agree with the construction of the contract on the subject of the power of the engineer officer, and therefore dissent. CANADA SUGAR REFINING COMPANY w. INSURANCE COMPANY OF NORTH AMERICA. certiorari to the circuit court of appeals for the second CIRCUIT. No. 69. Argued October 26,1899. — Decided January 8,1900. Tins is a case where the owners of a cargo of sugar had insured the same in the Atlantic Mutual Insurance Company, on and before April 29, 1893, at and for the sum of $166,145; and had, on April 29, 1893, insured the vol. clxxv—39 610 OCTOBER TERM, 1899. Statement of the Case. profits on the cargo against total loss only in the sum of $15,000 in the Insurance Company of North America. On July 6, 1893, the ship, while on her voyage, stranded on the coast of Newfoundland, became a total loss, and the voyage came to an end. The master, representing all concerned, contracted with local fishermen to give them one half of the sugar they could save. On July 8, 1893, the insurers of the cargo, having been notified of the disaster, took charge and possession of the remnants of the cargo, and purchased from the salvors the portion which, under the agreement with the master, was theirs. The sugar was then transported by a vessel chartered by the insurers, and on their account, to Montreal. The value of the sugar that reached Montreal was about $20,000, and the expenses, salvage charges and the additional freight from Newfoundland to Montreal, paid by the Atlantic Mutual Insurance Company, exceeded $11,000. The insurers on the cargo settled with the refining company as for a total loss under its policy for $166,145, and the sugar saved was turned over to the refining company in part settlement of that sum on the basis of the average pro rata policy valuation. The value of the entire cargo on April 29, 1893, when the insurance on profits was effected, was alleged in the libel and admitted in the answer to have been about $181,000. The insurance company contested its liability upon the policy on profits on the ground, chiefly, that the receipt by the libellant of a portion of the sugars, viz., about $20,000 in value, prevented the loss from being total within the terms of the policy. Held (1) That the saved remnants of the sugar were taken exclusive possession of by the agents of the Atlantic Mutual Insurance Company, were by them forwarded on account of that company to Montreal, and were finally turned over to the Canada Sugar Refining Company, at an agreed valuation, in part payment of the claim of the latter for total loss of cargo; (2) That the facts disclose an actual abandonment by the Canada Sugar Refining Company, to the Atlantic Mutual Insurance Company, and the acceptance by the latter of such abandonment. Owing to the prompt action of the insurance company in taking charge and control of the cargo, and in adopting the agreement of the master with the salvors, it was not necessary for the assured to go through with all the usual forms of an abandonment. Neither of the parties seems to have acted upon the supposition that any other or more formal act of abandonment was necessary; (3) That the libellant is entitled to recover the amount of the profits as valued in the policy. The Canada Sugar Refining Company, a Canadian corporation, on November 27, 1894, filed a libel and complaint in the District Court of the United States for the Southern District of New York against the Insurance Company of CANADA SUGAR REFINING CO. v. INSURANCE CO. 611 Statement of the Case. North America, a Pennsylvania corporation, to recover insurance effected by the libellant with the respondent in the amount of $15,000 on profits on a cargo of sugar shipped on board the British ship John E. Sayre, at and from Iloilo to Montreal, Canada. The respondent answered, the cause came on to be heard upon the pleadings, proceedings and proofs, and resulted, June 15, 1897, in a decree in favor of the libellant for the full amount of the insurance, with interest and costs. The case was taken on appeal to the United States Circuit Court of Appeals, where, on April 23, 1898, a final decree was entered reversing the decree of the District Court, and ordering that the libel be dismissed, with costs in both courts to the appellant. On the libellant’s petition, on May 10, 1898, a writ of certiorari was granted, under which the cause and the record and proceedings therein were removed into this court. The material facts of the case were as follows: On April 29, 1893, the respondent company insured for the libellant’s benefit: “ $15,000 on profits on cargo sugar; against total loss only; valued at sum insured; shipped on board the British ship John E. Sayre at and from Iloilo to Montreal.” At that time the Sayre was at sea prosecuting the voyage. The libellant had 2462 tons of sugars on board of her, amounting in value to $181,000, and had just completed insurance of the sugars to the amount of $166,145 in the Atlantic Mutual, of which insurance the respondent was informed before its insurance on profits was made. In July following the Sayre stranded on the coast of Newfoundland, and all the cargo was lost excepting about 300 tons, which was saved by the aid of salvors, of which one half went to them as their agreed compensation. The agreement was originally made by the master soon after the stranding; but a few days afterwards the agent of the Atlantic Mutual appeared, to whom the master turned over the salvage operations. He confirmed the previous agreement with the salvors; reimbursed to the master the expenses already incurred by him, and thenceforward, with the libellant’s consent and the defendant’s 612 OCTOBER TERM, 1899. Opinion of the Court. knowledge and acquiescence, took the complete control and disposition of the cargo. The agent eventually bought from the salvors the moieties of the sugars allotted to them under the agreement, and then shipped all the sugar saved to the order of the insurers to Montreal. The value of all the suo-ar that reached Montreal was about $20,000, and the expenses and salvage charges paid by the Atlantic Mutual thereon, and the additional freight to Montreal, exceeded $11,000, so that out of the whole cargo worth $181,000 less than $9000 net was saved. The Atlantic Mutual settled with the libellant as for a total loss, under its policy of $166,145, and it turned over the sugars saved in part settlement of that sum, on about the basis of the average pro rata policy valuation. The respondent contested its liability upon the policy on profits on the ground chiefly that the receipt by the libellant of a portion of the sugars, viz., about $20,000 in value, prevents the loss from being “ total ” within the terms of its policy. Mr. Wilhelmus Mynderse for the Sugar Refining Company. Mr. Clifford A. Hand for the Insurance Company. Me. Justice Shibas, after making the above statement, delivered the opinion of the court. The District Court held that, by the stranding of the vessel John E. Sayre, there had been caused, under the provisions of the contract of insurance between the Canada Sugar Refining Company and the Insurance Company of North America, a total loss of profits, and accordingly entered a decree in favor of the libellant for the full amount of the insurance, with interests and costs. 82 Fed. Rep. 757. The Circuit Court of Appeals, being of the opinion that there had not been a total loss of profits within the meaning of the contract, reversed the decree of the District Court, with directions to dismiss the libel. 58 U. S. App. 22. This difference of opinion arose from opposite views of the legal conclusion to be drawn from the evidence of the facts CANADA SUGAR REFINING CO. v. INSURANCE CO. 613 Opinion of the Court. attending the loss of the vessel and its cargo. Did those facts disclose a total loss of the cargo, and, consequently, a total loss of profits ? Or did they disclose that, within the meaning of the contract, a portion of the cargo was delivered to and received by the insured at the port of destination, and that, therefore, there was not a total loss of profits ? On February 10, 1893, the ship John E. Sayre, having on board a cargo of sugar belonging to the Canada Sugar Refining Company, sailed from Iloilo for Montreal. By several contracts of insurance between the refining company and the Atlantic Mutual Insurance Company the latter had insured the former against the loss of the cargo in the sum of $166,145. On April 29,t 1893, the ship being still on her voyage, the refining company entered into a contract with the Insurance Company of North America, of which the material terms were as follows: “This to certify that, on the 29th day of April, 1893, this company insured under policy 117,407, made for Robert Hampson, fifteen thousand and y0^ dollars on profits on cargo sugar against total loss only, valued at sum insured, shipped on board of the Br. ship John E. Sayre at and from Iloilo to Montreal, and the loss, if any, subject to the terms and conditions of the policy, has been made payable to the order of Canada Sugar Refg. Co. Ltd. on surrender of this certificate.” It was provided in the policy referred to in the certificate that “the acts of the insured or assurers, or of their joint or respective agents, in preserving, securing or saving the property insured, in case of damage or disaster, shall not be considered or held to be a waiver or acceptance of abandonment;” and likewise, “it is further agreed that if the said assured shall have made any other insurance upon the premises aforesaid, prior in date to this policy, then this insurance company shall be answerable only for so much of the amount as such prior insurance may be deficient towards fully covering the premises hereby insured, without any deduction for the insolvency of all or any of the underwriters, and shall return the premium upon so much of the sum by them insured as they shall be by such prior insurance exonerated from.” 614 OCTOBER TERM, 1899. Opinion of the Court. It is admitted that notice of the prior insurance was given to the Insurance Company of North America at the time when it entered into its contract with the refining company; nor does it appear that the insurance company, before the libel was filed, claimed that it was exonerated from any portion of its liability by reason of such prior insurance, or ever tendered a return of any part of the premium by reason of any such alleged exoneration. On July 6, 1893, the ship stranded on the coast of Newfoundland, and ultimately became a total wreck. The crew left the vessel, but the master remained, and, in the discharge of his duty as agent of all whom it might concern, made an arrangement with the local fishermen for the saving of cargo by them at one half of what was saved. This resulted in removal from the wreck of a portion of the cargo until July 8, when the work was finally abandoned. On that day an agent of the Atlantic Mutual Insurance Company arrived in the interest of that company. He at once took charge, and relieved the master, who, under instructions of the owner of the vessel, turned over the rescued portion of the cargo to the agent. The previous disbursements made by the master, amounting to $200, were paid to him by the agent of the Atlantic Mutual Insurance Company. The agent thereupon adjusted the claims of the salvors, in pursuance of the agreement made by the master. The portion saved from the wreck weighed about 320 tons, of which about one half was apportioned and set off to the salvors; but nearly all of the sugars so assigned to the salvors were subsequently purchased from them by the agent. The agent likewise paid to the shipowner his ocean freight, and reconditioned the sugars saved from the wreck, placed them in new bags, and then shipped them to Montreal on the coasting steamer Tiber. The total expenditures of the Atlantic Mutual Insurance Company, in respect of the salvage, the care, reconditioning and forwarding of the sugars, amounted to upwards of ten thousand dollars — not including the ocean freight, nor the freight from Newfoundland to Montreal. Thus far, in the history of the transactions, there seems to CANADA SUGAR REFINING CO. v. INSURANCE CO. 615 Opinion of the Court. be a substantial agreement between the statements of the courts below of the facts upon which they based their respective judgments. But we here meet with a difference, which, in the view we take of the case, is of controlling importance. The District Court, in the opinion by Judge Brown, states that the agent of the Atlantic Mutual Insurance Company, after having settled with the master and with the salvors, “shipped all the sugar saved, to the order of the insurers to Montreal;” and that “none of the sugar ever came to the libellant in the ordinary course of the voyage, or through any delivery to the libellant as consignee by the carrier; but only through a delivery by the insurer of cargo, after a practical abandonment to the latter, and through a settlement by the insurer as upon a total loss, in which the sugar was received by the libellant upon an equitable basis in part payment, and as the equivalent of its value in cash, as any other property might have been received.” The Circuit Court of Appeals, in its narration of events, states that “ the master was about to arrange for the transportation to Montreal of the part not going to the salvors, when the Atlantic Mutual Insurance Company, which meantime had been informed of the disaster, intervened and took entire control. That company carried out the agreement made by the master with the salvors, paying them an equivalent in lieu of one half of the sugar saved, and caused the sugar saved to be reconditioned and shipped to Montreal on the steamer Tiber, and delivered upon arrival there to the libellant.” Referring to the pleadings, we find it averred in the libel that the sugar, after having been brought to Montreal by the Atlantic Mutual Insurance Company, “ was received by the libellant on account of and in part payment for the loss sustained by the said libellant, under its insurance with the Atlantic Mutual Insurance Company, and that credit was given therefor to the said Atlantic Mutual Insurance Company in the amount at which the said 325 tons of sugar were insr/red with the said the Atlantic Mutual Insurance Company ; and that the market value of the said 325 tons of 616 OCTOBER TERM, 1899. Opinion of the Court. sugar in Montreal at the time it was received by the libellant was about $20,000.” The responsive allegations of the answer were as follows: “ This respondent further admits and avers, upon information and belief, that from the wreck of said ship John E. Sayre there were forwarded to Montreal, the place of destination, and there delivered to and received by the libellant, about nine thousand nine hundred mats of the said sugar of about three hundred and twenty-five tons’ net weight, and of the value of about twenty thousand dollars,” and “ this respondent, upon information and belief, denies that the sugar so delivered to the libellant was a payment by any underwriter on account of a supposed total loss.” The evidence under this issue, on the part of the libellant, consisted chiefly of the bills of lading, three in number, and dated August 4, 1893, given by the master of the steamer Tiber to Harvey & Co. of St. Johns, N. F., and calling for the delivery of the saved sugar to the Atlantic Mutual Insurance Company at Montreal; and of the testimony of Drummond, of Harvey and of Pike. Drummond testified that he was president of the Canada Sugar Refining Company; that, as such, he made a settlement with a representative of the Atlantic Mutual Insurance Company at Montreal, whereby about three hundred tons of sugar were accepted by the refining company from the Atlantic Insurance Company, at market rates of value, in part payment of the claim of the refining company against the Atlantic Mutual Insurance Company for total loss of cargo ; that the sugar was shipped from Newfoundland to the Atlantic Mutual Insurance Company at Montreal, and, in the opinion of the witness, belonged to the insurance company at the time of the settlement. Harvey testified that he was a member of the firm of Harvey & Co., commission merchants, St. Johns, Newfoundland; that in July and August, 1893, his firm acted for the Atlantic Mutual Insurance Company, under instructions from that company ; that his firm acted through Robert G. Pike as their representative; that the sugar saved from the wreck of the John E. Sayre was forwarded to Montreal to the order of the CANADA SUGAR REFINING CO. v. INSURANCE CO. 617 Opinion of the Court. Atlantic Mutual Insurance Company; that for expenses incurred by his firm in paying the salvors, the master’s expenses, and for storing, weighing, reconditioning and reshipping the sugar, their firm received payment from the Atlantic Mutual Insurance Company in the sum of $10,066.97; that, at no time, either before or after the wreck of the John E. Sayre, did his firm have any connection with or receive any instructions from the Canada Sugar Refining Company, or any of its officers or agents, or with the owners of the John E. Sayre. Pike testified that he was sent by Harvey & Co. to the scene of the wreck; that he there, on July 8, 1893, took entire charge of the sugar that had been saved ; that he settled with the master and with the salvors; that he reconditioned the sugar and shipped it to Montreal, to the Atlantic Mutual Insurance Company; that everything he did was in pursuance of instructions from Harvey & Co., as agents of the Atlantic Mutual Insurance Company of New York; that he never at any time had any communication with the Canada Sugar Refining Company, or their officers or agents. In the absence of any evidence offered under this issue by the Insurance Company of North America, we think it clear that the saved remnants of the sugar were taken exclusive possession of by the agents of the Atlantic Mutual Insurance Company, were by them forwarded on account of that company to Montreal, and were finally turned over to the Canada Sugar Refining Company, at an agreed valuation, in part payment of the claim of the latter for total loss of cargo. It is also evident, as we think, that the facts disclose an actual abandonment by the Canada Sugar Refining Company to the Atlantic Mutual Insurance Company, and the acceptance by the latter of such abandonment. Owing to the prompt action of the insurance company in taking charge and control of the cargo, and in adopting the agreement of the master with the salvors, it was not necessary for the assured to go through with all the usual forms of an abandonment. Neither of the parties seems to have acted upon the supposition that any other or more formal act of abandonment was necessary. 618 OCTOBER TERM, 1899. Opinion of the Court. In Columbian Insurance Co. n. Catlett, 12 Wheat. 394 where the effect of actual abandonment, as dispensing, if accepted, with formal notice, was considered, Justice Story said: “ The latter gives notice of an intention to abandon, because in its terms it includes an actual abandonment. It has a tacit reference to the clause in the policy, and must be deemed as a notice to abandon, and, at the same time, a declaration that it shall operate as an abandonment in the case, as soon as by law it may. In our judgment, it was a continuing act of abandonment, and became absolute at the end of the sixty days. It was an abandonment in prasenti, to take effect in future. Neither the form of the notice, nor the abandonment, is prescribed in the cause. They may be in one or two instruments; they may be in direct terms, or by fair and natural inference. It matters not how they are given or executed; it is sufficient, in point of fact, that they have been given or executed.” “If an abandonment is wanting in any formality the insurer may waive all objection, and they do this by calling for the proof and acting as if the abandonment were altogether sufficient.” (2 Parsons on Maritime Law, 398.) “ The rule dispensing with any particular form of abandonment amounts substantially to the rule that it is sufficient for the assured to signify distinctly that he abandoned, and he could not signify this more distinctly than by claiming a total loss. I therefore conclude that the claiming of a total loss is a sufficient expression of an intention to abandon.” (2 Phillips on Insurance, 387.) As the Canada Sugar Refining Company and the Atlantic Mutual Insurance Company agreed upon an actual abandonment and settled on the basis of a total loss, it is not perceived that, in the absence of any allegation or proof of fraud, the Insurance Company of North America can be heard to raise any question as to the formality of the proceedings. It was suggested, but apparently was not pressed at the argument, that there ought to have been an abandonment to the Insurance Company of North America. In Mumford v. CANADA SUGAR REFINING CO. v. INSURANCE CO. 619 Opinion of the Court. Hallett, 1 Johns. 433, where there were separate contracts of insurance on cargo and on profits, and where it was contended that the assured, by having abandoned the goods to the underwriter, had disabled himself from recovering the insurance on profit, it was said: “But admitting that this is to be regarded as a valued policy, it is said that the assured, by abandoning the cargo to its underwriters, has put it out of the power of the defendant to receive any salvage on the profits, and that, therefore, he has no right to recover in this suit. This is a dilemma which the defendant ought to have foreseen at the time of his subscription. He must have supposed there was a policy on the cargo, which, in case of disaster, would naturally be abandoned to those who had insured it. It is idle to complain of what must have been clearly his own understanding of the contract; nor is it reasonable in him to expect, that, for the purpose of recovering on a small policy on profits, a merchant should, by not abandoning the cargo, forego bis insurance on that subject.” We shall content ourselves in this respect by quoting the conclusion expressed in 2 Phillips on Insurance, sec. 1503 : “ A policy upon expected profits does not seem to offer anything upon which an abandonment can operate, and it does not appear from any speculation, or any judicial opinion, relating to this subject, which has come to my knowledge, that an abandonment of this interest can be of any importance to the underwriters, otherwise than as a notice that a total loss is claimed ; and if this is its only effect, an abandonment is not necessary. . . . Under an abandonment of freight, the underwriters may, in some instances, avail themselves indirectly of what has been done towards earning freight. They may receive the freight pro rata itineris per acti, for the part of the voyage performed previously to the event on account of which the abandonment is made. But not so of profits; there is no profit, or anything like a profit, pro rata itineris per acti, which can be assigned, or proved to be of any value to the insurer. It does not appear, therefore, that an abandonment of profits can be anything more than a nugatory ceremony. ... It has never been hinted that the assured 620 OCTOBER TERM, 1899. Opinion of the Court. can make any claim upon the insurers for the profits on goods abandoned to them, and if he has no such right, he cannot transfer it to the underwriters on profits or to any other persons.” To briefly rehearse the facts, this is a case where the owners of a cargo of sugar had insured the same in the Atlantic Mutual Insurance Company, on and before April 29, 1893, at and for the sum of $166,145; had, on April 29, 1893, insured the profits on the cargo against total loss only in the sum of $15,000 in the Insurance Company of North America; on July 6, 1893, the ship, while on her voyage, stranded on the coast of Newfoundland, became a total loss, and the voyage came to an end; the master, representing all concerned, contracted with local fishermen to give them one half of the sugar they could save; on July 8, 1893, the insurers of the cargo, having been notified of the disaster, took charge and possession of the remnants of the cargo, and purchased from the salvors the portion which, under the agreement with the master, was theirs; the sugar was then transported by a vessel chartered by the insurers, and on their account, to Montreal; the value of the sugar that reached Montreal was about $20,000, and the expenses, salvage charges and the additional freight from Newfoundland to Montreal, paid by the Atlantic Mutual Insurance Company, exceeded $11,000; the insurers on the cargo settled with the refining company as for a total loss under its policy for $166,145, and the sugar saved was turned over to the refining company in part settlement of that sum on the basis of the average pro rata policy valuation. The value of the entire cargo on April 29, 1893, when the insurance on profits was effected, was alleged in the libel and admitted in the answer to have been about $181,000. The error of the Circuit Court of Appeals, as we view the case, was in regarding the portion of the cargo that was saved and paid for by the Atlantic Insurance Company as having been carried to Montreal and there delivered to the refining company as the owner thereof, and as respects which, in that state of facts, the refining company should be deemed to have received profits on a part of the cargo. CANADA SUGAR REFINING CO. v. INSURANCE CO. 621 Opinion of the Court. Without finding it necessary to enter into a discussion of refined distinctions, considered in some of the cases, between an actual and a technical total loss, we think it evident that the refining company would not receive the indemnity for which it bargained and paid unless it is permitted to recover in the present case. By such recovery it will not receive more than will, with what it has received from the Atlantic Mutual Insurance Company, make up its whole loss. It certainly cannot be successfully claimed that, in order to recover, the refining company was bound, in this suit on a valued policy on profits, to put in evidence to show that it would have received profits if the voyage had been completed, and the entire cargo had arrived safely. Such a contention was considered and determined in The Patapsco Ins. Co. v. Coulter, 3 Pet. 222. That was a case where the ship Mary was proceeding on a voyage from Philadelphia to Gibraltar and ulterior ports with a cargo of flour. There was an insurance on profits in the sum of five thousand dollars. While the vessel lay at Gibraltar, before the discharge of her cargo, she and her cargo were totally lost by fire. In an action brought on the policy of insurance on profits in the Circuit Court of the United States for the District of Maryland, the court was asked to instruct the jury that as the assured had offered no evidence that the flour, if delivered and sold at Gibraltar, would have yielded a profit, they were not entitled to recover. The refusal of the court so to charge was approved in this court, in an opinion by Mr. Justice Johnson, from which we quote, as follows: “ The third prayer for instructions is in these words: ‘ That the plaintiffs had offered no evidence that the sales of the flour at Gibraltar would have yielded the plaintiffs a profit, and that, therefore, they were not entitled to recover.’ This was refused, and the question is, whether the defendants were entitled to it, as prayed. “This instruction presents two propositions : 1. That it was necessary to prove loss of profits, otherwise than by the loss of the cargo. 2. That the plaintiff was limited to proof of profits on a sale at Gibraltar. With regard to the second it is clear 622 OCTOBER TERM, 1899. Opinion of the Court. that the instruction was properly refused, for there was nothing in the policy to prevent the assured from proceeding with the original cargo to the Pacific, although the course of trade would have sanctioned him in selling and replacing it. But the first proposition is one of more difficulty. “ Courts of justice have got over their difficulties on the question whether profits are an insurable interest, but how and where that interest must be established by proof, in case of loss, is not well settled. Here again there appears to be a conflict between the British and American decisions. “ The earliest of the British decisions, that of Barclay v. Cowins, 2 East, 544, certainly supports the doctrine that the profits sink with the cargo, or at least that the loss of one is prima facie evidence of the loss of the other, and throws the onus pro-loandi upon the defendant. Such is the intimation of the court, and the recovery was had in that case without proof that profit would have been made had the cargo arrived at the destined port. In the case of Henrickson v. Margetson, 2 East, 549, of which a note was given in that case, the recovery was also had without proofs that the profits would have been made, or any other proof than an interest in and loss of the cargo; and Lord Mansfield seems to have suggested the true ground for dispensing with such proof, to wit, the utter impracticability of making it, without the spirit of prophecy to determine the precise time when the vessel would arrive at her destined port. “ The two subsequent cases which are cited in the elementary books to sustain the contrary doctrine are not full to the point. In that of Hodgson n. Glover, 6 East, 316, there was another question of as great difficulty, to wit, Whether, in a clear case of average loss, the plaintiff could recover as for a total loss, or recover anything without evidence to determine the average. Of the four judges who sat, two decided against the plaintiff, upon the one ground, and two upon the other. “ In the second case, that of Eyre v. Glover, 12 East, 218, although the point was touched upon in argument, yet the court neither expressly affirm nor deny it; it was not the leading question in the cause; and at last judgment is rendered for CANADA SUGAR REFINING CO. v. INSURANCE CO. 623 Opinion of the Court. plaintiff without requiring such proof. But the case of Mumford v. Hallett, 1 Johns. 439, goes further. It was a case of insurance on profits, in which there was no evidence given that profits would have been made upon an arrival, nor was any other loss proved than as an incident to the loss of the goods. On that state of facts, Livingston, Justice, who delivers the opinion of the court, remarks: ‘ It does not follow that a profit will be made if the cargo arrived, yet its loss would give a right to recover on such a policy.’ There were other questions in the case; but, after all were settled, this principle was essential to the plaintiff’s right to recover. In the case of Fosdick v. The Norwich Insurance Company, decided in the Supreme Court of Errors of Connecticut, the question was moved in argument that to justify a recovery the plaintiff must show that profits would have accrued upon safe arrival of the goods; but the language of the court, in expressing their decision, is not so explicit as to enable us to determine whether it was intended to apply as well to the proof of loss as to the insurable interest. Yet the right of the plaintiff to recover being affirmed in that case without other proof than the loss of the goods, it would seem to be an authority for the doctrine that no other was necessary. “ The report furnishes no other proof of loss of profits than what was implied in the loss of the cargo in which the insured had an interest. And on the question of insurable interest, which was the main question in the cause, the Chief Justice asks, ‘ if profits are anything more than an excrescence upon the value of goods beyond the prime cost ? ’ “As to the American cases, Mr. Phillips quotes that of Loomis v. Shaw, (if I understand his language as he meant to use it,) as going farther than the case warrants. 2 Johns. Cas. 36. The court waives the question now under consideration by suggesting that the defendant had waived it by an act of his own. “In the case of Abbott v. Sebor, 3 Johns. Cas. 39, which was a motion for a new trial, the decision turned chiefly on the question whether the court had misdirected the jury in instructing them that the plaintiff must recover the whole 624 OCTOBER TERM, 1899. Opinion of the Court. sum insured on profits or nothing — that is, that he could not recover for an average loss. The question, if proof that profits would have been made had the vessel arrived in safety was necessary to his recovery, was not touched. Yet the right to recover is affirmed in that case, and it does not appear that any proof to that effect had been offered or required beyond the loss of the goods on which the profit was expected. But the authority amounts to no more than an implication. “We must now dispose of the question upon reason and principle; and here it seems difficult to perceive why, if profit be a mere excrescence of the principal, as some judges have said, or an incident to or identified with it as others have said, the loss of the cargo should not carry with it the loss of the profits. This rule has convenience and certainty to recommend it, of which this case presents a striking illustration. Here was a voyage of many thousand miles to be performed; the final profits of which must have been determined by a statement of accounts passing through several changes, some of which might have resulted in loss, some in gain; and in each case the good or ill fortune of the adventure turning on the gain or loss of a day in the voyage. What human calculation or human imagination could have furnished testimony on a fact so speculative and fortuitous? To have required testimony to it would have been subjecting the rights of the plaintiff to mere mockery.” The conclusion thus reached has never been disturbed in this court, and is the prevalent doctrine in the United States. The American rule and the reason for it are thus stated in 2 Phillips on Ins. section 1209: “ Under a policy on the profits of a cargo on a voyage from Philadelphia to the Mediterranean., and thence to South America, valued at $20,000, the ship and cargo were destroyed by fire at Gibraltar. • It' was held {Patapsco Ins. Co. v. Coulter, 3 Pet. 222) that the assured was entitled to recover the whole amount of the valuation against the underwriters, without proving that there would have been any ultimate profit on the voyage, if it had been pursued without interruption or disaster. And this is the prevalent doctrine in the CANADA SUGAR REFINING CO. v. INSURANCE CO. 625 Opinion of the Court. United States. . . . The profit, then, which is the subject of a policy upon this interest is the excess of the value of the subject at the port of destination over its value at the shipping port. It is only in case of loss that the policy is of any avail to the assured, and he wishes that it may avail him in a total as well as partial loss. In the latter case, the loss may be adjusted, under an open policy, on the English doctrine, by ascertaining how much less the profit is than it would have been if the goods had arrived sound. “ But in the case of a total loss by the ship never arriving, it is very difficult to say what the profits would have been had the ship arrived, since it is not possible to determine when she would have arrived; and if this difficulty is got over by assuming some probable time, there must often be a long delay in hearing from a distant port of destination, and learning the state of markets. The prompt return of his capital to the assured in case of loss, which is a very important consideration in insuring, requires a valuation of the profits, in preference to an open policy subject to an adjustment upon the English doctrine of determining the amount by the state of the market at the port of destination. The same difficulty does not arise in case of a loss on goods, which is adjusted on the invoice value. There does not appear to be any way of avoiding this difficulty but by a valuation, and this is felt in practice, since policies on profits are usually valued.” Agreeing, as we do, with the view of the evidence taken by the District Court, to wit, that none of the sugar ever came to the libellant in the ordinary course of the voyage, or through any delivery to the libellant as consignee by the carrier, but only through a delivery by the insurer of cargo, after a practical abandonment to the latter, and through a settlement by the insurer as upon a total loss, in which the sugar was received by the libellant upon an equitable basis in part payment, and as the equivalent of the value in cash, as any other property might have been received, the legal conclusion that we reach is that the libellant is entitled to recover the amount of the profits as valued in the policy. The appellees claim that they took no part in the settlement VOL. CLXXV—40 626 OCTOBER TERM, 1899. Syllabus. between the cargo insurers and the libellant, and the doctrine of res inter alios is invoked. But they had knowledge of the prior insurance, and were bound to know that, in case of disaster, there was the right to abandon. There is evidence that they were informed of what was going on between the other parties concerned. They do not impugn, by allegation or evidence, the fairness and good faith of that transaction, nor do they claim that it was conducted with a view to prejudice them. They plant their defence solely on the proposition of fact that a sound portion of the cargo reached the port of destination in due course, and was there delivered to the libellant as consignee — a proposition of fact, as we have seen, not sustained but refuted by the evidence. Accordingly, the decree of the Circuit Court of Appeals must be Reversed, with costs, and the decree of the District Court for the Southern District of New York is affirmed. KEOKUK AND HAMILTON BRIDGE COMPANY v. ILLINOIS. EBBOB TO THE SUPBEME COUBT OF THE STATE OF ILLINOIS. No. 26. Submitted November 15, 1899. —Decided January 8,1900. The boundary line between the States of Illinois and Iowa is the middle of the main navigable channel of the Mississippi River; but whether in assessing taxes in Illinois on a bridge running from one State to the other, in crossing that bridge the dividing line was improperly located, is a question of fact the finding of which by a state court is not reviewable here. The same may be said concerning the contention as to whether the bridge was assessed at more than its value and not at the same proportion of its value as other property was. The tax on the capital stock was not a tax on franchises conferred by the Federal government, but on those conferred by the State, and as such is not open to objection here. The tax was not a tax on interstate commerce. KEOKUK & HAMILTON BRIDGE CO. v. ILLINOIS. 627 Opinion of the Court. As to the objection that the entire capital stock was assessed by the state board of equalization, it is enough to say that the question that the action of that board was in violation of the Constitution of the United States, except so far as it was claimed to be an interference with interstate commerce, was not raised, and therefore cannot be considered here for the first time. No opinion is intimated on the contention that the judgment was erroneous because the assessment, in effect, included the entire capital stock of plaintiff in error as a consolidated corporation. The case is stated in the opinion of the court. Mr. Walter D. Davidge and Mr. Walter D. Davidge, Jr., for plaintiff in error. Mr. Edward C. Akin and Mr. O. F. Berry for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court. This is a writ of error to review the judgment of the Supreme Court of Illinois affirming a judgment of the county court of Hancock County, in that State, for delinquent taxes assessed against the Keokuk and Hamilton Bridge Company for the year 1894. The Keokuk and Hamilton Bridge Company was incorporated by an act of the general assembly of the State of Illinois in 1857, with power to build, maintain and use a bridge for railroad and other purposes over the Mississippi River from or near the town of Hamilton, in the county of Hancock, to Keokuk, in the State of Iowa, and was authorized to connect the bridge by railroad or otherwise with any railroad or railroads terminating thereat or approximately thereto, and to consolidate with any railroad or other company or companies in Illinois or any other State. A similar corporation was organized under the laws of the State of Iowa, and the two corporations consolidated with the main office at Keokuk. Authority to construct and maintain the bridge was granted the two companies by the act of Congress of July 25, 1866, c. 244,14 Stat. 244. 628 OCTOBER TERM, 1899. Opinion of the Court. The record discloses that the company objected to the assessment of its tangible property as made by the assessor of the township in which the Illinois end of the bridge was situated, and applied to the township board of review for a reduction, protesting that the property was overvalued; “that the Fourteenth Amendment to the Constitution of the United States has been violated, in that equal justice and protection to property of the said bridge company has been denied;” “ that the property assessed and described by the assessor lies partly in the State of Iowa and is not subject to taxation in Illinois; ” etc. The board of review denied the relief asked, and the bridge company appealed to the board of supervisors of Hancock County, which also refused to change the assessment. The collector of Hancock County then applied to the county court, at its May term 1895, for judgment on the delinquent tax list, including the assessment against the bridge company, to which the company filed its objections, rehearsing the proceedings which had been theretofore taken, the objections made, and the evidence adduced. Before a hearing on these objections was had, the parties stipulated that the collector might “insert in his application for judgment the capital stock tax for the year 1894 levied by the state board of equalization against said company,” which was done. The bridge company thereupon filed its objections to any judgment for the capital stock tax, as follows : “ Objections by ‘the Keokuk & Hamilton Bridge Company’ to judgment against its bridge and approach. “ The original objections filed to said May term covering the application as there made. “ The application was amended in June by adding claims for capital stock tax of 1894, $1029.90. “ This objection is to the proposed judgment against said property for said claimed tax on the capital stock of said company — “ 1st. Because said bridge company is a consolidated corporation of the States of Illinois and Iowa, one half m each of said States, and its entire business is that of interstate commerce, and any tax thereon is a tax upon such KEOKUK & HAMILTON BRIDGE CO. v. ILLINOIS. 629 Opinion of the Court. interstate commerce and is without authority of law and void. “2d. Such claimed capital stock tax is levied upon the whole capital stock, when only one half thereof, if any, is assessable in Illinois. “ 3d. The only tax assessable against said property is upon its tangible property in Illinois. “ 4th. Said pretended assessment of capital stock is wholly void because not made in the manner required by law nor according to the rules of the state board of equalization.” Considerable evidence was introduced, including the proceedings of the state board of equalization, from which it appeared that the capital stock of the bridge company was returned at one million dollars; that the total amount of its indebtedness except for current expenses, and excluding from such expenses the amount paid for the purchase or improvement of property, was one million dollars, with unpaid interest thereon amounting to nine hundred thousand dollars; that the assessed valuation of lands and structure was $218,000; and that the state board of equalization placed the valuation for assessment of capital stock at $30,080. The tax on the tangible property was $2708.61, and on the capital stock $1019.17. Judgment was rendered by the county court for those amounts and interest. From this judgment the case was carried on appeal to the Supreme Court, and there affirmed. Among the errors assigned in that court were that “ the court erred in overruling defendant’s (appellant’s) objections to the rendition of judgment of the capital stock tax (so-called) and rendering judgment thereon. Among the reasons for said error are the following: “ a. Said capital stock tax is a tax on personal, not on real, property, and is chargeable only at the place of the main office and place of business of defendant (appellant) — Keokuk, m the State of Iowa — and is made in violation of the rights of defendant (appellant), contrary to the laws regulating commerce between the States and contrary to the Constitution and laws of the United States. “ b. If any part of said capital stock of defendant (appel- 630 OCTOBER TERM, 1899. Opinion of the Court. lant) is taxable in Illinois, it can only be that portion thereof that would correspond to the length of the bridge in Illinois as compared to the whole length of bridge, represented by said capital stock — not exceeding one half of said stock — yet the judgment is rendered for the tax assessed against the whole of the capital stock of defendant (appellant) as though all was located in Illinois; ” that the judgment was against the evidence as to the length of the bridge in Illinois; and that the court ignored the act of Congress fixing the western boundary of Illinois. In the opinion of the Supreme Court of Illinois, Keokuk & Hamilton Bridge Co. v. The People, 167 Illinois, 15, it is said: “ The grounds of reversal are, first, the assessments were fraudulently made; second, the whole of the capital stock is assessed in this State, whereas an undivided half pf it is taxable in Iowa; third, the judgment is upon an assessment upon a part of appellant’s bridge not in the State of Illinois, but in the State of Iowa. The facts upon which the first two grounds are based are substantially the same as those upon which similar objections were urged in cases between the same parties in 145 Ill. 596, and 161 Id. 132 and 514, and are disposed of adversely to the appellant by those decisions.” The last point was disposed of on the ground that the county court was justified on the evidence in finding that no part of the bridge assessed was in the State of Iowa. In Keokuk db Hamilton Bridge Company n. The People, 145 Illinois, 596, it was held that when the middle of a navigable river becomes the boundary line between two States, the middle of the current or channel of commerce will be regarded as the boundary line; that an assessor in Illinois in assessing a bridge over a navigable river forming the boundary of the State for the purpose of taxation, has no right to assess any part of such bridge that is located beyond such boundary line; and that unless the property has been fraudulently assessed more than its fair cash value, the courts cannot interfere with the action of the assessor. The judgment in that case was reversed because the assessor had assessed several hundred KEOKUK & HAMILTON BRIDGE CO. v. ILLINOIS. 631 Opinion of the Court. feet of the bridge as in Hancock County, Illinois, which was located beyond the boundary line of the State. In Keokuk dec. Bridge Co. v. People, 161 Illinois, 132, it was ruled that in fixing the value for taxation the assessor acts judicially, and the courts cannot revise his assessment on the mere ground of erroneous valuation; that on an application for judgment for delinquent taxes, it may be shown that the tax is unauthorized by law, or is assessed on property not subject to taxation, or that the property has been fraudulently assessed at too high a rate; that the capital stock of a corporation formed by the consolidation of corporations of different States is properly taxable in one of said States so far as the corporation of that State is concerned; that the kind of property denominated in the revenue law of Illinois “capital stock” does not mean shares of stock, either separate or in the aggregate, but designates the property of the state corporation subject to taxation, as a homogeneous unit partaking of the nature of personalty, and subject to the burdens imposed on it by the State of its creation. The judgment was reversed because the assessment was illegal in including a certain number of feet of the bridge which was located in the State of Iowa. In Same v. Same, Id. 514, the rulings in the prior case so far as involved were affirmed. The foregoing are the decisions to which reference is made in the opinion of the state Supreme Court in the case before us. The errors assigned in this court are in substance that part of the bridge assessed was in the State of Iowa; that the bridge was assessed at more than its value, and not in the same proportion as other property was assessed; that no part of the capital stock was assessable, because a tax on it was in effect a tax on interstate commerce, and was a tax on franchises conferred by the Federal government; and that the whole of the capital stock was assessed, although one half of the bridge was located in the State of Iowa. 1. In Iowa v. Illinois, 147 U. S. 1, it was adjudged that the boundary line between the two States was “ the middle of the main navigable channel of the Mississippi River.” Where 632 OCTOBER TERM, 1899. Opinion of the Court. that line divided the bridge was a question of fact, and it is not within our province to review the findings of the courts below in regard to the part assessed in Illinois. 2. For the same reason, the contention as to whether the bridge was assessed at more than its value, and not at the same proportion of its value as other property was, need not be considered. Perhaps we may properly add that we perceive no adequate ground to question the conclusion that the county court did not err in declining, on the evidence, to set aside the determinations of the boards of review sustaining the action of the assessor. 3. The tax on the capital stock was not a tax on franchises conferred by the Federal government, but on those conferred by the State, and as such not open to objection. Central Pacific Pailroad v. California, 162 U. S. 91; Henderson Bridge Company v. Kentucky, 166 U. S. 150. Nor was the tax a tax on interstate commerce. This was so ruled in Henderson Bridge Company v. Kentucky, supra. It was there said: “ The company was chartered by the State of Kentucky to build and operate a bridge, and the State could properly include the franchises it had granted in the valuation of the company’s property for taxation. Central Pacific Bailroad Company v. California, 162 IT. S. 91. The regulation of tolls for transportation over the bridge considered in Covington (ft Cincinnati Bridge Company v. Kentucky, 154 U. S. 204, presented an entirely different question. “ Clearly the tax was not a tax on the interstate business carried on over or by means of the bridge, because the bridge company did not transact such business. That business was carried on by the persons and corporations which paid the bridge company tolls for the privilege of using the bridge. 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, is too remote and incidental to make it a tax on the business transacted.” And see Henderson Bridge Company v. Henderson City, 173 U. 8. 592, 622. KEOKUK & HAMILTON BRIDGE CO. v. ILLINOIS. 633 Opinion of the Court. 4. As to the objection that the entire capital stock was assessed by the state board of equalization, it is enough to say that the question that the action of that board was in violation of the Constitution of the United States, except so far as it was claimed to be an interference with interstate commerce, was not raised. The Supreme Court of Illinois had repeatedly sustained the assessment on the whole capital stock as being an assessment on the capital stock of a corporation created by the State of Illinois. But in none of the cases in which the question of the validity of such capital stock assessments arose was the point considered that they were contrary to the Constitution of the United States. In this case, and as to the tangible property, the objection was made that the assessment by the assessor of that tangible property was in contravention of the Fourteenth Amendment. But this was before the township board of review, and the board of supervisors, and had no relation to the assessment of capital stock, which by the laws of Illinois was dealt with solely by the board of equalization. In the county court, the objections made in the township board of review and in the board of supervisors as to the tangible property, were repeated as to that property, but the objections to the assessment on the capital stock were independent of and distinct from those, and raised no question in respect of the Constitution of the United States except that as to interstate commerce. And this was true as to the assignments of error in the state Supreme Court. In Dewey v. Des Moines, 173 U. S. 193, it was held that where a Federal question is raised in the state courts, the party who resorts to this court cannot raise another Federal question, not connected with it, which was not raised in any of the courts below. To justify our taking jurisdiction, the Federal question must be specially set up or claimed in the state court; the party must have the intent to invoke for the protection of his rights the Constitution or some statute or treaty of the United States, and such intention must be declared in some unmis- 634 OCTOBER TERM, 1899. Opinion of the Court. takable manner. Oxley Stave Company v, Butler County, 166 U. S. 648. “ In other words, the court must be able to see clearly from the whole record that a provision of the Constitution or act of Congress is relied upon by the party who brings the writ of error, and that the right thus claimed by him was denied. . . . Although no particular form of words is necessary to be used in order that the Federal question may be said to be involved, within the meaning of the cases on this subject, there yet must be something in the case before the state court which at least would call its attention to the Federal question as one that was relied on by the party, and then, if the decision of the court, while not noticing the question, was such that the judgment was by its necessary effect a denial of the right claimed or referred to, it would be sufficient. It must appear from the record that the right set up or claimed was denied by the judgment, or that such was its necessary effect in law. . . . It is not enough that there may be somewhere hidden in the record a question which, if raised, would be of a Federal nature. Hamilton Company v. Massachusetts, 6 Wall. 632. In order to be available in this court some claim or right must have been asserted in the court below by which it would appear that the party asserting the right founded it in some degree upon the Constitution or laws or treaties of the United States. In such case, if the court below denied the right claimed, it would be enough; or if it did not in terms deny such right, if the necessary effect of its judgment was to deny it, then it would be enough. But the denial, whether expressed or implied, must be of some right or claim founded upon the Constitution or the laws or treaties of the United States which had in some manner been brought to the attention of the court below. The record shows nothing of the kind in this case. A claim or right which has never been made or asserted cannot be said to have been denied by a judgment which does not refer to it. Hamilton Company v. Massachusetts, supra. A point that was never raised cannot be said to have been decided adversely to a party, who never set it up or in any way alluded to it. Nor can it be said that the WHITCOMB v. SMITHSON. 635 Statement of the Case. necessary effect in law of a judgment, which is silent upon the question, is the denial of a claim or right which might have been involved therein, but which in fact was never in any way set up or spoken of.” 173 U. S. 198, 199, 200. We are confined then to the only Federal questions which this record presents, and in disposing of these, as we have, no opinion is intimated on the contention that the judgment was erroneous because the assessment, in effect, included the entire capital stock of plaintiff in error as a consolidated corporation. Judgment affirmed. WHITCOMB v. SMITHSON. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 150. Submitted December 4,1899. —Decided January 8,1900. On the facts, as stated below, it is held that the action of the Circuit Court in remanding the cause after its removal on the first application is not open to revision on this writ of error; and that, as the state court did not err in denying the second application, the motion to affirm must be sustained, as the question of the effect of that remanding order gave color for the motion to dismiss. This was an action brought in the District Court of Ramsay County, Minnesota, by John A. Smithson against the Chicago Great Western Railway Company, and H. F. Whitcomb and Howard Morris, receivers of the Wisconsin Central Company, to recover for personal injuries while he was serving the Chicago Great Western Railway Company as a locomotive fireman, in a collision between the locomotive on which he was at work and another locomotive operated by Whitcomb and Morris, as receivers of the Wisconsin Railway Company, appointed by the United States Circuit Courts for the Eastern District of Wisconsin and the District of Minnesota. The Chicago Great Western Railway Company answered the complaint, and the receivers filed a petition for the removal of the cause into the Circuit Court of the United States for the Dis- 636 OCTOBER TERM, 1899. Statement of the Case. trict of Minnesota setting up diverse citizenship, and that they were officers of the United States courts; that the controversy was separable, and that the railway company was fraudulently made a party for the sole purpose of preventing the removal of the cause. Plaintiff answered the petition and asserted that the company was made party defendant in good faith, and not for that purpose. An order of removal was entered and the cause sent to the Circuit Court, and thereafterwards that court, on hearing on rule to show cause, remanded it to the District Court of Ramsay County. Defendants Whitcomb and Morris being in default, it was stipulated between plaintiff and themselves that in consideration that plaintiff allowed them to answer, plaintiff should have a trial of the cause at the June term, 1896, of the court, and further “in case of a final judgment in said action in favor of said plaintiff against said receivers, that the receivers will not oppose the allowance of the same before the master in chancery.” Whitcomb and Morris thereupon filed their answer. The case came on for trial on the morning of April 20, 1897, when Whitcomb and Morris asked leave to file an amended answer, setting up that the court was without jurisdiction because the cause was pending in the Circuit Court. The application was denied, and said defendants excepted. The trial proceeded, and after the testimony was closed, on April 21, counsel for the Chicago Great Western Railway Company moved that the jury be instructed to return a verdict in behalf of that defendant, which motion the court granted. Thereupon the receivers asked permission to file a petition for removal supplemental to the petition already on file, and proffer of petition and bond being treated as made, the court denied the application, and exception was taken. On the morning of April 22 the court instructed the jury to return a verdict in favor of the Chicago Great Western Railway Company, which was done, and thereupon the case went to the jury, which returned a verdict on April 23 against Whitcomb and Morris as receivers, and assessed plaintiff’s damages. Motion for new trial having been made and overruled, judgment was entered on the verdict, and was subsequently affirmed WHITCOMB v. SMITHSON. 637 Opinion of the Court. by the Supreme Court of Minnesota on appeal. 71 Minnesota, 216. The pending writ of error having been issued, motions to dismiss or affirm were submitted. Mr. John A. Lovely for the motions. Mr. Howard Morris and Mr. Thomas H. Gill opposing. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The action of the Circuit Court in remanding the cause after its removal on the first application is not open to revision on this writ of error. Missouri Pacific Railway v. Fitzgerald, 160 IT. S. 556. And if the state court did not err in denying the second application, the motion to affirm must be sustained, as we think the question of the effect of that remanding order gave color for the motion to dismiss. The record shows that the Circuit Court granted the motion to remand on the authority of Thompson y. Chicago, St. Paul &c. Railway, 60 Fed. Rep. 773, in which case it was ruled that there was no separable controversy; and its judgment covered the question of fact as to the good faith of the joinder. The contention here is that when the trial court determined to direct a verdict in favor of the Chicago Great Western Railway Company, the result was that the case stood as if the receivers had been sole • defendants, and that they then acquired a right of removal which was not concluded by the previous action of the Circuit Court. This might have been so if when the cause was called for trial in the state court plaintiff had discontinued his action against the railway company, and thereby elected to prosecute it against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all the defendants. Powers v. Chesapeake c& Ohio Railway, 169 IT. S. 92. But that is not this case. The joint liability was insisted on here to the close of the trial, and the non-liability of the railway company was ruled in invitum. 638 OCTOBER TERM, 1899. Opinion of the Court. As stated by the Supreme Court of Minnesota, “it was alleged in the complaint that both of these defendants operated locomotives and trains over tracks owned by the Chicago and Northern Pacific Railway Company, in the city of Chicago, and it was on this track that the collision occurred. The negligence alleged on the part of the receivers was in allowing their locomotive to stop and remain standing in the night time at a certain place on their track, and when there was imminent danger of a collision, without giving proper or any signals of having so stopped; while the negligence on the part of the Chicago Great Western Company was alleged to be an omission and failure on its part to adopt or establish proper or any rules for the giving of warning signals by its own or other locomotives or trains while being operated on said track.” The case was prosecuted by plaintiff accordingly, and at the close of the evidence a motion was made to instruct the jury to return a verdict in behalf of the railway company because the evidence did not sustain the allegations of the complaint as to the negligence of that defendant, and the court granted the motion on that ground in view of the rules of the company, which it found “ to amply cover all the contingencies arising in the prosecution of the various duties incident to railroad service at the point.” This was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the cause then removable and thereby to enable the other defendants to prevent plaintiff from taking a verdict against them. The right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried. As we have said the contention that the railway company was fraudulently joined as a defendant had been disposed of by the Circuit Court. But assuming, without deciding, that that contention could have been properly renewed under the circumstances, it is sufficient to say that the record before us does not sustain it. Judgment affirmed- TELLURIDE POWER CO. V. RIO GRANDE &c. R’Y. 639 Statement of the Case. TELLURIDE POWER TRANSMISSION COMPANY u RIO GRANDE WESTERN RAILWAY COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF UTAH. No. 70. Argued December 8,11, 1899.—Decided January 8, 1900. In a case brought up by writ of error from the Supreme Court of a State, it appeared from a supplemental transcript of the record that proceedings for a removal of the case to the Circuit Court of the United States were taken in the court of original jurisdiction, and were denied; but that no question regarding these proceedings was made in the Supreme Court of the State, and the supplemental transcript was not filed in such Supreme Court until after the case had been decided there. Held: that as no certiorari was issued to bring it up, and no motion or order was made for leave to file it, it could not be considered here. By Rev. Stat, section 2339, whenever, “ by priority of possession,” rights to the use of water for mining purposes have vested and accrued, and the same are recognized by local customs and laws, “ the possessors and owners of such vested rights shall be maintained and protected in the same.” Held: that a question of fact, as to which party had priority of possession, was not a Federal question. The jurisdiction of this court in cases brought up by writ of error to a state court does not extend to questions of fact, or of local law, which are merely preliminary to, or the possible basis of, a Federal question. This was a suit brought by the Rio Grande Western Railway Company, a corporation of Utah, in the District Court of the Fourth Judicial District of Utah, against the Telluride Power Transmission Company and two individual defendants, named Nunn and Holbrook, to confirm and quiet the title of the plaintiff company to certain unsurveyed public lands of the United States in the county and State of Utah. The bill of complaint was filed September 12, 1896, and set forth that the railway company was authorized to construct and operate a railway in Provo Canon, Utah, on either of two routes described; that in March, 1896, it commenced the survey and location of a line of railroad through the canon, which line passed over certain tracts of unsurveyed lands of the United States, of which one Murphy was in possession, prior to the survey; that it became the owner of this right of way, 640 OCTOBER TERM, 1899. Statement of the Case. under an act of Congress affirming such rights, subject only to its obligation to pay the occupant the damages to his possessory right, which he subsequently released. The plaintiff further alleged that, while lawfully in possession of the land, the defendants set up an adverse claim, and by threats and force stopped its work and denied its right to use the land for railway purposes. A judgment was demanded that the adverse claim be decreed unfounded; that the right of the plaintiff be confirmed, and the defendants be enjoined from asserting their adverse claim or interfering with the plaintiff’s possession. It would appear from a supplemental transcript of the record filed in the Supreme Court of Utah, after its judgment upon the merits, that, prior to any further action being taken, and on or about December 5, 1896, the defendants, the Telluride Power Transmission Company, and the individual defendant Nunn, filed a petition for a removal of the case to the Circuit Court of the United States, on account of diversity of citizenship, except as to defendant Holbrook, who was charged with having no interest in the controversy, and with being a mere nominal party, and made such for the purpose of ousting the jurisdiction of the Federal court. Upon hearing the arguments of counsel, the petition was denied. After filing an objection to the further exercise of jurisdiction by the state court, the defendants demurred to the bill of complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. No exception was taken by the defendants, who united in an answer, in which it was alleged that the defendant Holbrook had no interest in the subject-matter in controversy. The answer further denied the material allegation of the complaint, as well as the existence of the plaintiff as a corporation, and averred that the greater part of the bed of the canon was unsurveyed public land; that the defendants took possession of a large portion of these lands for the purpose of constructing a reservoir, and of other lands for canals, flumes and small dams, in order to carry out the purpose of the enterprise for which they were chartered; that, in 1894, TELLURIDE POWER CO. V. RIO GRANDE &c. R’Y. 641 Statement of the Case. they entered upon Provo Canon and made surveys for the purpose of ascertaining whether water power could be obtained for the production of electric current, and whether by storage in reservoirs, water could be obtained for agricultural and mining purposes; and that thereafter they took possession of a large part of the public domain, lying in the said canon, including the land in dispute, for the purpose of constructing a reservoir thereon; that, in order to complete this enterprise, they would require the whole of the canon, and that, if the plaintiff or any one else should construct a railroad through the canon, this enterprise would be defeated; that in 1895 they began the construction of a flume, in order to obtain power with which to aid in the construction of a dam eighty-five feet high at Hanging Kock, the latter dam being intended to retain water for power and irrigation purposes; that they made surveys of the contour of the reservoir to be formed by the dam; that in the spring of 1896 they prosecuted the work upon the said surveys and flume; that prior to the plaintiff’s entry into Provo Canon they, the defendants the Telluride Company and Nunn, had entered upon the unoccupied, unsurveyed public land therein, with the purpose of constructing an expensive dam and reservoir; and that, on September 12,1896, when this suit was commenced, and for more than two years prior thereto, they were and had been in actual possession of the land in dispute. The case was tried by the court without a jury. Findings of fact and conclusions of law were made by the court to the effect that the plaintiff had prior possession of the land, and that the adverse claim of the defendants was unfounded. A judgment was thereupon entered in favor of the plaintiff; its title to the lands in question confirmed and quieted; the adverse claim adjudged invalid, and the defendants enjoined from setting up claims or exercising rights adverse to those of the plaintiff. From this judgment, defendants, the Telluride Company and Nunn, took an appeal to the Supreme Court of Utah, which affirmed the judgment of the District Court. Whereupon these defendants sued out a writ of error from this court, assigning, amongst other things, as error, the failure of the vol. clxxv—41 642 OCTOBER TERM, 1899. Opinion of the Court. District Court to remove the case to the Circuit Court of the United States. Mr. Arthur Brown for plaintiffs in error. Mr. H. P. Henderson and Mr. William Story were on his brief. Mr. James H. Hayden for defendant in error. Mr. Joseph K. McCammon and Mr. R. Harkness were on his brief. Mr. Justice Brown delivered the opinion of the court. 1. The question of the removal of the case to the Federal court may be disposed of without difficulty. The facts are that, on January 21, 1898, four months after the case was argued in the Supreme Court, and six weeks after it was decided, there was filed in the Supreme Court of Utah a supplemental transcript containing the original petition for removal to the Circuit Court, the bond of the petitioners, the order of the court denying the petition, and a protest of the defendants against the further exercise of jurisdiction by the state court. But it does not appear how this supplemental record came to be filed. No certiorari was issued to bring it up. No motion was made for leave to file it. No order was entered permitting it to be filed, and for aught that appears, it was procured by some unauthorized person and thrust upon the files without notice to either party, without consultation with the court, and for the purpose of creating a defence which was never called to the attention of the Supreme Court. The transcript, upon which the case was heard in the Supreme Court, was stipulated by the attorneys for the respective parties to be “ a full, correct, true and complete transcript of the proceedings in said cause on appeal, and of all the pleadings in said cause, of all orders on demurrer, of the findings of the court and conclusions therefrom, and of the judgment, and of notice of intention to move for a new trial, and of the notice of appeal, and of the bill of exceptions and statement of motion for new trial.” In short, this supplemental transcript is a mere excrescence. It is scarcely necessary to say that, under such circumstances, it cannot be considered here. Goodenough Mfg. Co. v. Rhode Island Horse Shoe Co., 154 U. S. 635. TELLURIDE POWER CO. V. RIO GRANDE &c. R’Y. 643 Opinion of the Court. 2. If there be any Federal question in the case, it arises from Rev. Stat. sec. 2339, which reads as follows : “ Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed ; but whenever any person, in the construction of any ditch or canal, injures or damages the possession' of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.” It is insisted that the case falls within the first category of cases specified in Rev. Stat. sec. 709, “ where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity.” But the cases in which this clause has been applied are those wherein the validity of a statute, or of an authority exercised by a public official of the United States has been called in question, and not those where a general right is set up under a statute. McGuire n. Commonwealth, 3 Wall. 387 ; Millingar v. Hartupee, 6 Wall. 258; Daniels v. Tearney, 102 U. S. 415; Sharpe v. Doyle, 102 U. S. 686; Buck v. CoTbath, 3 Wall. 334. The use of the word “authority” in the third clause in connection with the word “commission ” favors the theory that a personal authority was intended, and not the assertion of an abstract right created by a statute. We think the case falls more properly within the third clause, as one wherein a title or right is claimed under a statute of the United States. In such case such title or right must be “ specially set up and claimed ” before judgment in the state court. This was not done in- the case under consideration. In its complaint, the plaintiff railway company makes no allusion to this act, but relies upon an act of Congress respecting a right of way for railroads through public lands, act of March 3, 1875, c. 152, 18 Stat. 482, and upon cer- 644 OCTOBER TERM, 1899. Opinion of the Court. tain provisions of the local laws of Utah. The statute is not. set up in the answer of the defendants, who relied upon their priority of possession. So, also, in the thirty-three assignments of error, filed by the defendants in the state Supreme Court, no reference is made to an act of Congress as the basis of their right, and no intimation is made that the District Court erred in the construction or applicability of any such act. In the opinion of the Supreme Court, it is stated that the errors alleged raised the questions, first, whether there was not a statutory forfeiture of the plaintiff’s charter, in consequence of a failure to complete and put its road in operation; second, whether plaintiff had the lawful right to locate its right of way in the canon, and had located it over the land in dispute, and was in actual possession thereof, when defendant interfered; third, whether the law required the plaintiff to file with the register of the land office a profile of its route; and, fourth, whether the defendants made such appropriation, or had such possession of the land in dispute as authorized them to hold it against the plaintiff. After discussing the validity of the plaintiff’s charter, the powers granted by it, and the possession of the plaintiff, the opinion proceeds to consider whether the defendants had any right to the land in dispute, and in this connection finds that they might have obtained a vested right to own unappropriated waters of the Provo River for the purposes specified in their charter, and that such right is recognized and acknowledged by Rev. Stat, sec. 2339 above cited, but professed itself “ unable to find from a preponderance of the evidence in the record, that the defendants, or either of them, had appropriated the land in dispute, and that they were, or that either of them was, in actual possession of it when the plaintiff located its right of way, took actual possession, and engaged in grading it. We cannot regard the plaintiff as a mere intruder on the defendants’ possession, nor can we hold that they had a right to prevent the plaintiff’s employes from grading it and to eject plaintiff from actual possession. It is true that defendants had surveyed for dams and reservoirs at different points on the river, but they had not taken and did not hold actual possession of the land in dispute.” TELLURIDE POWER CO. V. RIO GRANDE &o. R’Y. 645 Opinion of the Court. The petition in error for the first time set up a right and authority under the mining laws of the United States, Rev. Stat. sec. 2339, and charged that the decision of the trial court, as well as of the Supreme Court of the State, was against the authority and validity of the claim of the defendants. The assignments of error turn principally, if not wholly, upon the finding of prior possession on the part of the plaintiff, the refusal of the court to remove the cause, and its ruling' that the plaintiff had the right under its charter to construct the road. From this resume of the proceedings, it is evident that there was no denial to the defendants of any right they may have possessed by virtue of a priority of possession. The statute (Rev. Stat. sec. 2339) provides that “ whenever, by priority of possession, rights to the use of water” for certain purposes “have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions,” the owners of such vested rights “ shall be maintained and protected in the same,” and their right of wray for the construction of ditches and canals acknowledged and confirmed. But in order'to establish any rights under the statute it was incumbent upqn the defendants to prove their priority of possession, or at least to disprove priority on the part of the plaintiff. The question who had acquired this priority of possession was not a Federal question, but a pure question of fact, upon which the decision of the state court was conclusive. No construction was put upon the statute; no question arose under it; but a preliminary question was to be decided before the statute became material, and that was whether defendants were first in possession of the land. Even if priority of possession had been shown, it would still have been necessary to prove that defendants’ right to the use of the water was recognized and acknowledged by the local customs, laws and decisions, all of which were questions of state law. In this connection, an attempt is made to distinguish between the findings of fact and the conclusions of law. Defendants concede that they are bound by the findings of fact upon the subject of possession, but contend that they are not 646 OCTOBER TERM, 1899. Opinion of the Court. bound by the conclusions of law, which are as follows: First, that the plaintiff, prior to the commencement of the suit, had the possession, right of possession, and the inchoate title of the lands described; second, that the defendant company had no power in Utah to engage in generating electric power for sale; third, that defendants never had the title, possession or right of possession, to the lands, or acquired any vested right in accordance with the laws or customs of the country, or any right to flow or otherwise occupy said lands, or prevent the use and occupation thereof by the plaintiff railroad company, and that their adverse claim was unfounded; fourth, that the plaintiff was entitled to judgment. It is quite evident that these findings involved either questions of fact or questions of local law, and that while the finding of the ultimate fact of prior possession may possibly have been a legal conclusion, it was not a Federal question. In this particular the case is covered by Eilers v. Boatman, 111 IL S. 356, which was an action for the settlement of adverse claims to mineral lands. The case turned upon the priority of location, which the court held was a matter of fact, although the court below called it a conclusion of law. The case under consideration in its material aspects resembles that of Bushnell v. Crooke ELining Co., 148 U. S. 682, which was an action of ejectment growing out of conflicting and interfering locations of mining claims. As stated by Mr. Justice Jackson, “ the question presented on the trial of the controversy under the pleadings was purely one of fact, and had reference to the true direction which the Monitor lode or vein took after encountering a fault, obstruction or interruption at a point south of the discovery shaft sunk thereon. . . . After the decision had been rendered by the Supreme Court of the State, a petition for rehearing was presented by the plaintiffs in error, which, for the first time, sought to present a question whether section 2322 of the Revised Statutes gave to the appellants ‘the exclusive right of possession ’ and enjoyment of all other veins or lodes having their apexes within the Monitor’s surface ground.” The court held it to be “ plainly manifest that neither the plead- TELLURIDE POWER CO. V. RIO GRANDE &c. R’Y. 647 Opinion of the Court. ings nor the instructions given and refused present any Federal question, and an examination of the opinion of the Supreme Court affirming the action of the trial court as to instructions given, as well as its refusal to give instructions asked by the defendants below, fails to disclose the presence of any Federal question.” In this connection Mr. Justice Jackson quotes the remark of the Chief Justice in Cook County v. Calumet de Chicago Canal Company, 138 U. S. 635, 653: “ The validity of a statute is not drawn into question every time rights claimed under such statute are controverted, nor is the validity of an authority every time an act done by such authority is disputed.” See also Doe v. City of Mobile, 9 How. 451. The position of the plaintiffs in error is that, as their whole case depended upon the rights asserted by them under section 2339, and that, as the courts decided adversely to the rights claimed by them, there was no necessity of a special reference to that statute, relying in this connection upon such cases as Miller v. Nioholls, 4 Wheat. 311; Satterlee v. Matthewson, 2 Pet. 380, 410, and others cited in Columbia Water Power Co. v. Columbia Electric Street Railway Co., 172 U. S. 475, 488, in which we have held that, if it sufficiently appear from the record that the validity of a state statute was drawn in question as repugnant to the Constitution of the United States and the question was decided, or such decision was necessarily involved in the case, and the case could not have been determined without deciding such question, the fact that it was not in terms specially set up and claimed in the record is not conclusive against a review of the question here. But the difficulty in this case is that, before it could be said that any right or title under a statute of the United States had been denied, it was necessary to establish as a question of fact priority of possession on the part of the Telluride Company, as well as conformity to local customs, laws and decisions. These were local and not Federal questions. The jurisdiction of this court m this class of cases does not extend to questions of fact or of local law, which are merely preliminary to, or the possible basis of, a Federal question. The writ of error must, therefore, be 648 OCTOBER TERM, 1899. Syllabus. LOUISVILLE AND NASHVILLE RAILROAD COM-PANY v. BEHLMER. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 46. Argued April 17, 18, 1899. —Decided January 8,1900. The conceded facts from which it has been assumed in this case, as a matter of law, that the railway carriers were operating “under a common control, management or arrangement for a continuous carriage or shipment ” were as follows: The several carriers transported hay from Memphis under through bills of lading, by continuous carriage, to Summerville and Charleston. The several roads shared in an agreed rate on traffic to Charleston and in a precisely equal in amount rate on traffic to Summerville. On shipments to Summerville, however, there was added to the Charleston rate the amount of the local rate from Charleston to Summerville, the benefit of which additional exaction was solely received by the local road on which Summerville was situated. The contention that under this state of facts the carriers did not constitute a continuous line, bringing them within the control of the Act to regulate Commerce, is no longer open to controversy in this court. In Cincinnati, New Orleans & Texas Pacific Nailway v. Interstate Commerce Commission, 162 U. S. 184, which was decided after this case was before the Commission and the Circuit Court, it was held under a state of facts substantially similar to that here found that the carriers were thereby subject to the Act to regulate Commerce. It is settled by previous decisions that the construction given in this cause by the Interstate Commerce Commission and the Circuit Court of Appeals to the fourth section of the Act to regulate Commerce was erroneous, and hence that both the Interstate Commerce Commission and the Circuit Court of Appeals mistakenly considered, as a matter of law, that competition, however material, arising from carriers who were subject to the Act to regulate Commerce could not be taken into consideration; and likewise that all competition, however substantial, not originating at the initial point of the traffic, was equally as a matter of law excluded from view. What was decided in the previous cases was that under the fourth section of the act substantial competition which materially affected transportation and rates might under the statute be competent to produce dissimilarity of circumstances and conditions, to be taken into consideration by the carrier in charging a greater sum for a lesser than for a longer haul. The meaning of the law was not decided to be that one kind of competition could be considered and not another kind, but that all competition, provided it possessed the attributes of producing a substantial and mate- LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 649 Statement of the Case. rial effect upon traffic and rate making, was proper under the statute to be taken into consideration. It follows that while the carrier may take into consideration the existence of competition as the producing cause of dissimilar circumstances and conditions, his right to do so is governed by the following principles : First: The absolute command of the statute that all rates shall be just and reasonable, and that no undue discrimination be brought about, though, in the nature of things, this latter consideration may in many cases be involved in the determination of whether competition was such as created a substantial dissimilarity of condition. Second: That the competition relied upon be, not artificial or merely conjectural, but material and substantial, thereby operating on the question of traffic and rate making, the right in every event to be only enjoyed with a due regard to the interest of the public, after giving full weight to the benefits to be conferred on the place from whence the traffic moved as well as those to be derived by the locality to which it is to be delivered. This controversy was commenced on December 29, 1892, when Henry W. Behlmer, a resident of Summerville, South Carolina, and a wholesale hay and grain dealer therein, began proceedings, before the Interstate Commerce Commission, under the Act to regulate Commerce, passed February 4, 1887, as amended, to restrain the continuance of acts asserted by him to be a violation of the statute referred to. The petition was filed by Behlmer on his own behalf, and that of the other merchants, residents of Summerville, and the parties complained of were The Memphis and Charleston Railroad Company, The East Tennessee,. Virginia and Georgia Railroad Company, The Georgia Railroad and Banking Company (the owner of a railroad designated as the Georgia Railroad), The South? Carolin a Railway Company, and other companies and individuals, who were averred to be lessees or receivers of some of the above-named companies. All the lines of railroad mentioned were asserted to be members of a combination styled The Southern Railway and Steamship Association. It was averred that the defendants were carriers under a common control, management or arrangement, for continuous carriage, and were engaged in the transportation of passengers and property wholly by railroad, between Memphis in the State of Tennessee and Summerville in the State of South Carolina and through Summerville to Charleston. The distance be- 650 OCTOBER TERM, 1899. Statement of the Case. tween Memphis and Summerville was averred to be 748 miles as follows: Between Memphis and Chattanooga, 310 miles over the Memphis and Charleston Railroad ; between Chattanooga and Atlanta, Georgia, 152 miles over the East Tennessee, Virginia and Georgia Railroad; from Atlanta to Augusta, Georgia, 171 miles over the Georgia Railroad; and from Augusta, Georgia, to Summerville, South Carolina, 115 miles over the South Carolina Railway. The principal subject of complaint was that though Summerville was twenty-two miles west of Charleston and was that distance nearer to Memphis, where the hay and grain shipments originated, yet the defendants exacted from the petitioner and other merchants of Summerville a freight charge of twenty-eight cents per hundred pounds for hay, carried from Memphis to Summerville, while only nineteen cents per hundred pounds were charged for the same article when carried to Charleston, the longer distance. It was averred that the rate of twenty-eight cents to Summerville was made up of the through rate to Charleston, with the addition of the local rate from Charleston to Summerville of nine cents per hundred pounds. It was also alleged that the shipments of hay to Summerville were made over the same line, in the same direction as Charleston, and under substantially similar circumstances and conditions. The freight charges complained of were averred to be in violation of the fourth section of the Act to regulate Commerce, commonly referred to as the long and short haul clause. Besides, it was alleged that the local rate between Summerville and Charleston of nine cents per hundred pounds was excessive and unreasonable, and that such also was the case as regards the charge of twenty-eight cents from Memphis to Summerville, and hence such charges were in violation of the first section of the Act to regulate Commerce. It was also asserted that the discrimination and excessive rates against Summerville existed not only on hay, “ but on all articles of interstate commerce coming to that place, much to the detriment and disadvantage of the town and the business of its merchants.” In their answers certain of the defendants conceded that they were subject to the Act to regulate Commerce, while LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 651 Statement of the Case. others, though admitting that they were common carriers and engaged in the transportation of passengers, wholly by railroad between points in the States of Tennessee and South Carolina, averred that they had no joint through tariff from Memphis to Summerville, and therefore had no “ line ” from Memphis to Summerville, in the sense of the Act to regulate Commerce, and were in consequence not affected by the statute. All the defendants averred that the aggregate freight rate on hay carried from Memphis to Summerville, as well as the local rates from Charleston to Summerville, were just and reasonable. By some of the defendants it was alleged that the transportation of hay from Memphis to Summerville was not done under substantially similar circumstances and conditions as the transportation of like property from Memphis to Charleston, and hence the carriers were justified in making a lesser charge to Charleston than was made to Summerville, the shorter distance. The dissimilarity alleged was asserted to have been caused, first, by the existence between Memphis and Charleston of at least eight competing lines of railroad, and, second, by the competition by sea, on hay and grain, and freight of that class, originating in Chicago, New York and Eastern points, and destined to Charleston via the lakes, canal and ocean, and by part water and part rail. The exact conditions of the competition existing at Charleston because of its situation on the seaboard and consequent relations with many markets other than Memphis, was stated in the joint and several answers of the Louisville and Nashville Railroad Company and the Central Railroad and Banking Company as follows: “ (Second.) Charleston is a port on the Atlantic coast, accessible and easily reached from the ports of Baltimore, Philadelphia, New York, Boston and other Eastern ports from which hay is shipped by water. If the rail lines from Memphis to Charleston charged rates to Charleston as high as the rate to Summerville, although the latter rate is in itself reasonable, no hay would be brought from Memphis to Charleston, but Charleston would be supplied with hay from North Atlantic ports and the railroads would lose the hay business and Memphis would lose a hay market. 652 OCTOBER TERM, 1899. Statement of the Case. “(Third.) The rates on Western produce to Charleston and other coast cities, such as Savannah, Port Royal and Brunswick, are made with a view to actual, existing water competition. Western produce, such as grain, hay, etc., distributed from Chicago, can reach Charleston through the ports of New York, Philadelphia and Baltimore over continuous water routes via the lakes and canal or over combined rail and water routes. “ The all-rail lines, seeking to do business between Chicago and Charleston and other coast cities, are compelled to make their rates approximate those which are offered by the continuous water route or by the combined rail and water routes. The all-rail routes make their rates as much higher as the difference in the service will permit, and those rates are correspondingly adjusted from all Western points, such as Evansville, Cairo, St. Louis, Memphis, etc. At present the all-rail rate from Chicago to Charleston on hay, for instance, is 33c. per 100 lbs.; from St. Louis, 28 c.; from Louisville, Evansville and Cairo, 23 c.; and from Memphis, 19 c. — the route through Memphis offering facilities for the transportation of hay, grain and Western products generally from the States of Missouri, Kansas, Nebraska, etc. “ The rate from Memphis to Charleston on hay is, therefore, forced upon the defendant lines by actual existing water competition and other competition beyond the control of defendant. “The controlling element in said competition is the lake, canal and ocean transportation between Chicago and Charleston ; or the lake transportation from Chicago to Buffalo, or other lake port, thence by rail to New York, thence by ocean to Charleston; or rail transportation from Chicago to Baltimore, Philadelphia or New York, thence by ocean to Charleston.” On the foregoing issues testimony was taken before the Commission, which entered an order requiring the defendants to desist on or before a date named from charging any greater sum in the aggregate for the transportation from Memphis to Summerville of hay, or other commodities carried by them, LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 653 Opinion of the Court. under circumstances and conditions similar to those appearing in the case, than was being charged for such transportation for the longer distance to Charleston. This order, however, stated that it was made without prejudice to the right of the defendants to apply to the Commission for relief under the fourth section of the Act to regulate Commerce. The order not having been obeyed, Behlmer, as authorized by section 5 of the act of March 2,1889, c. 382, 25 Stat. 855, 859, amending section 16 of the original act, filed his complaint in the Circuit Court of the United States for the Fourth Circuit, Eastern District of South Carolina, against the defendants in the proceedings before the Commission and the purchasers, assignees and successors of some of them, praying that the court might enforce compliance with the order of the Commission. By stipulation the testimony taken before the Commission was used at the hearing in the Circuit Court, and by consent certain documentary evidence (consisting of railway agreements, tariffs, reports, etc.) was filed as additional evidence on behalf of the defendants. The case was heard by the Circuit Court, and, on January 22,1896, the bill was ordered to be dismissed. 71 Fed. Rep. 835. The controversy was then taken by appeal to the Circuit Court of Appeals for the Fourth Circuit, and that court reversed the judgment of the Circuit Court, and remanded the cause with instructions to render a decree substantially in accordance with the order made by the Commission. 42. U. S. App. 581. A motion for a rehearing having been denied, the case was then brought to this court. Mr. Edward Baxter for appellants. Mr. Claudian B. Northrop for appellee. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court. The questions which arise on this record involve the consideration of several provisions of the act of February 4, 1887, c, 104, to regulate Commerce. 24 Stat. 379. 654 OCTOBER TERM, 1899. Opinion of the Court. The particular questions at issue and the aspect in which they arise will be best shown by first considering the action of the Commission, then that of the Circuit Court in reviewing the order of that body, and, thirdly, that of the Circuit Court of Appeals in reversing the decree of the Circuit Court. The Commission held, as a matter of fact, that the carriers so conducted their business as to constitute a through line within the meaning of the Commerce Act, and were therefore amenable to its provisions. It did not, however, consider whether the rates to Summerville and Charleston were just and reasonable, because it deemed it unnecessary to do so. The reason for this conclusion was stated as follows: “ If it shall appear in this case that the defendants violate the long and short haul clause of the law by keeping the higher rate to Summerville in force, it will be unnecessary to consider in this report whether the rate to Summerville is in violation of other provisions of the law. In that event the prohibition of the fourth section will afford all the reduction demanded in the complaint.” When it approached the fourth section of the act, the Commission declined to weigh the evidence before it as to the existence of competition, except in so far as to enable it to determine that the evidence established that the competition relied upon by the carriers did not originate at the point of shipment, or if it did arise at such, place it was alone engendered by the presence there of other carriers who were subject to the Commerce Law. This determination of the Commission to restrict its examination of the evidence solely to the extent necessary to enable it to ascertain the source and inherent character and not the materiality and substantiality of the competition, and therefore to exclude wholly from view the latter considerations, was predicated on the conclusion that, as a matter of law, no competition, however great might be its influence on carriage and rate making, could be by the carrier taken into consideration, of his own motion, in determining whether a lesser sum would be charged for the longer than for the shorter haul, if such competition arose from the sources or was wholly of LOUISVILLE &d. RAILROAD CO. v. BEHLMER. 655 Opinion of the Court. the character which it was found by the Commission the proof established the competition relied on to be. That is to say, the Commission concluded, as a matter of law, that it was unnecessary to weigh the facts for the purpose of determining the materiality and extent of the competition, because, however strongly the proof might demonstrate its potency upon traffic and rates, nevertheless it would be without efficacy to give rise to such substantial dissimilarity as would justify the carrier, of his own motion, to charge a lesser rate for the longer than for the shorter haul. Whilst this was held to be the law, at the same time it was decided that the character of competition, which from its very nature was decided to be inadequate to create such legal dissimilarity in the conditions as to justify the carrier, of his own motion, charging a lesser sum for the longer than that for the shorter haul, nevertheless might authorize the Commission to sanction the lesser charge if the facts were presented to the Commission and its previous sanction to making such charge was obtained. Therefore the right of the carrier to prefer to the Commission a request for authority to make the charge complained of, predicated upon the very grounds which were held insufficient to permit the carrier to do so, on his own motion, was fully reserved. The ruling was, then, this, that some kinds of competition, however material and substantial in their operation, were yet inadequate, for the purpose of creating dissimilarity in circumstance and condition, to justify the independent action of the carrier, although the identical conditions of competition might be sufficient to produce such dissimilarity as to justify the Commission, on application made to it for such purpose, to authorize the carrier to charge less for a longer than was exacted for a shorter distance. The Commission said in its report (4 Inters. Com. Rep. 520, 523): “ There is no showing in this proceeding of competition by lines not subject to the Act to regulate Commerce for the carriage of hay from Memphis to Charleston, and the fact that there may be competition for such traffic by lines which are subject to the act, or that hay may be carried to Charleston by various rail and water, or part rail and part water, routes 656 OCTOBER TERM, 1899. Opinion of the Court. from points other than Memphis, does not justify the defendant carriers in departing from the general rule of the fourth section upon their own motion. Such considerations may constitute reasons for applying to the Commission for relief under the proviso clause of that section, but for reasons stated in our decisions of the cases above cited they do not justify carriers in departing from the rule of the fourth section without such a relieving order. Water competition, to justify lower long-haul rates, must exist between the point of shipment and the longer distance point of destination. (James & M. Buggy Co. v. Cincinnati, JT. 0. & T. P. R. R. Co., supra.} One transportation line cannot be said to meet the competition of another transportation line for the carrying trade of any particular locality, unless the latter line could and would perform the service alone if the former did not undertake it. (Chattanooga Board of Trade v. Bast Tennessee, K & G. R. Co., supra.} The competition of markets, or the competition of carrying lines, subject to regulation under the Act to regulate Commerce does not justify carriers in making greater short-haul or lower long-haul charges over the same line without an order issued by the Commission on application therefor and after investigation. (Ga. R. R. Com. v. Clyde 8. 8. Co., 4 Inters. Com. Rep. 120; 5 I. C. C. Rep. 324; and Gerke Brew. Co. n. Louisville & N. R. Co., 4 Inters. Com. Rep. 267; 5 I. C. C-Rep. 596.) ” The Circuit Court held that one of the defendants had not been served with process so as to cause any decree which might be rendered to be conclusive, and, moreover, decided that the proof did not establish that the carriers, in the matter complained of, were under a common control and management for continuous shipment, within the meaning of the act, and, therefore, they were not, as to such carriage, amenable to the provisions of the act. The court, however, proceeded as follows (71 Fed. Rep. 839): “ But if we assume, for the sake of argument, that all the defendants are affected by this charge, does it violate the fourth section of the act above quoted? Judge Cooley, in In re L. & N. R. R. Co., 1 Inters. Com. Rep, 57, says; ‘ The charg- LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 657 Opinion of the Court. ing or receiving greater compensation for the shorter than for the longer haul is sure [seen] to be forbidden only where both are under substantially the same circumstances and conditions. And, therefore, if in any case the carrier, without first obtaining an order of relief, shall depart from the general rule, its so doing will not alone convict it of illegality, since if the circumstances and conditions of the two hauls are dissimilar the statute is not violated.’ This is quoted with approbation by the United States Circuit Court, Southern District California. {Interstate Commerce Commission v. A. T. & S. F. F. Co., 50 Fed. Rep. 295.) “ When, then, may the circumstances and conditions of the two hauls be said to be dissimilar ? Judge Cooley, in the same case, answers this question: ‘Among other things in cases where the circumstances and conditions of the traffic were affected by the element of competition, and where exceptions might be a necessity if the competition were to continue. And water competition was, beyond doubt, especially in view.’ “In the case from 50 Fed. Rep. above cited, this is one of the rubrics: ‘Los Angeles, California, is a.point to which there is active competition in certain kinds of freight between several transcontinental railway lines, direct or by water, via Vancouver and San Francisco; also, by ocean freights, via Aspinwall and the Straits of Magellan, from points east of the Missouri River. And a through rate on the same kind of freight, lower than to San Bernardino, an intermediate noncompetitive point, 60 miles from Los Angeles, on one of the competing railroad lines, is not prohibited by the act, since the circumstances and conditions were substantially dissimilar.’ “ The circumstances of the case at bar are closely like those of the case just quoted. Charleston is a competitive point between all-railroad routes, routes partly by rail and partly by water, and routes all water. If the defendants had not consented with each other to lower the rate, no hay whatever would come from the hay-producing territory tributary to Memphis; and all the southeast Atlantic States would be compelled to rely on other portions of the West, North or Northeast for hay. VOL. CLXXV—42 658 OCTOBER TERM, 1899, Opinion of the Court. “The evidence clearly shows that the rate to Charleston was forced down by this competition. But this is an advantage to all the territory tributary to Charleston, and all stations share in it. No such competition exists at Summerville, a small inland town. If it, and others like it, were permitted to share in the circumstances and conditions surrounding o Charleston and to get the benefit of the competition which Charleston enjoys, and they have not, then, ex necessitate, the South Carolina Railway will be called upon to elect between its through business and its local business, and in this election to give up the former. Thus, all stations on the line of road will pay local freight on hay, and the market, to the extent of imports from Memphis, will be destroyed. The interstate commerce law was intended to promote trade. Such a construction as is now sought would destroy competition, the life of trade.” Subsequently the attention of the Circuit Court was called to the asserted fact that there had been a service on the defendant, as to whom it was stated, in the opinion of the court, there had been no service of process. In a memorandum opinion the court in substance said that, conceding arguendo the correctness of the fact called to its attention, as it would not change the result of the decision, it was unnecessary to further consider it. The Circuit Court of Appeals decided that the Circuit Court had mistakenly held that one of the parties essential to the cause had not been properly served, and that the Circuit Court had also fallen into error in deciding that the carriers in question were not, within the intendment of the Commerce Act, a continuous line for through transportation under a common management and control. When it came to consider the conflicting conclusions of the Commission and the Circuit Court as to the meaning of the fourth section of the act, the court held that the interpretation adopted by the Commission was right, and that upheld by the Circuit Court was wrong. In other words, the Circuit Court of Appeals decided that no competition existing at the place of delivery, however far reaching, or arising at the initial point from the action of other LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 659 Opinion of the Court. carriers who were subject to the control of the act, could justify a carrier in making a greater charge for a shorter than for a longer haul, although such competitive conditions might empower the Commission, on application of the carrier to grant the right to make such charge. The reasons which impelled the Circuit Court of Appeals to the conclusion by it reached are very clearly stated in its opinion, from which a member of the court (Morris, District Judge) dissented. The court said (42 U. S. App. 594): “The decisions of the Interstate Commerce Commission, concerning the proper construction of section 4 of the Interstate Commerce Act, have not been uniformly sustained by the decrees of the courts of the United States in cases instituted for the purpose of enforcing the orders of the Commission concerning that section, and, therefore, prior to the announcement of the opinion of the Supreme Court in the Social Circle case there was much confusion concerning the true meaning of the same. A careful reading of that opinion impels us to the conclusion that the construction given that section by the Interstate Commerce Commission, in a number of cases decided by it prior to such decision, is the proper one. In this connection may be cited the following: The James & Mayer Buggy Co. v. The Cin., O. <& Tex. Pac. R. Co., 3 Inters. Com. Rep. 682; Trammel v. Clyde S. S. Co., 4 Inters. Com. Rep. 120; The Board of Trade of Chattanooga v. East Tenn., V. & G. R. Co., 4 Inters. Com. Rep. 213.” Again: “We adopt the conclusion heretofore announced by the Interstate Commerce Commission (4 Inters. Com. Rep. 520), which is, in substance, that in order to justify the greater charge for the shorter distance because of water competition, the transportation as to which such competition exists must be concerning freight to the longer distance point, which, if not carried to such point by the road giving the rate complained of, could reach that point by water transportation; and also that the competition of one transportation line cannot be said to meet that of another for the carriage of traffic 660 OCTOBER TERM, 1899. Opinion of the Court. from any particular locality, unless one line could perform the service if the other did not. Such, we believe, to be the true meaning of section 4, so far as the point we are now considering is involved. We are also of opinion that the competition claimed by the appellees to exist between the different markets — particularly those of Memphis, Chicago and the North Atlantic ports — to supply the trade of Charleston in the products mentioned, is not in reality the competition that affects rates from a particular locality, but is one that is regulated by the commercial circumstances existing at those points, applicable to business of that character and not connected with the usual conditions under which transportation is conducted, nor does such competition in our judgment create the dissimilar circumstances and conditions referred to in the fourth section of the act now under consideration. And we further hold that competition between carriers subject to the requirements of said act does not produce such substantial dissimilarity in the circumstances and conditions under which transportation is performed as will justify such carriers in making a greater charge for the shorter than for the longer haul, without an order to that effect from the Commission, granted by it as provided for in the proviso to the fourth section.” Approaching, then, a solution of the questions which arise from the report of the Commission and the decisions below rendered, which substantially also embrace the essential matters covered by the assignments of error and the material issues which were urged in the argument at bar, it appears that the propositions involved are threefold. First. Was it correctly decided that the carriers as the result of the arrangements between them constituted, within the purview of the first section of the Act to regulate Commerce, a continuous line, so far at least as regards the shipments between Memphis, Summerville and Charleston ? Second. Was it correctly held by the Commission and decided by the Circuit Court of Appeals, that under the fourth section of the act no competition, however material, unless it arose from certain enumerated sources or was of the inherent character stated by the LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 661 Opinion of the Court. Commission and the Circuit Court of Appeals, could create such dissimilarity of circumstance and condition as would authorize the carrier, of his own motion, to charge a greater rate for a lesser than for a longer distance ? The provisions of the fourth section which are involved in the second proposition are as follows: “ Seo. 4. That it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance: provided, however, that upon application to the Commission appointed under the provisions of this act such common carrier may, in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property ; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act.” Third. If it be concluded that the Commission and the Circuit Court of Appeals erroneously interpreted the fourth section of the act, is the record in such a condition as to justify this court in deciding, as a question of first impression, whether the through rates, complained of, were just and reasonable, and whether, if yes, the proof offered by the carrier established such substantial and material competition, as would support a charge by the carrier, on his own motion, of a lesser rate for the longer than is exacted for the shorter distance ? The first two of the foregoing questions in effect solely involve propositions of law, for, although the essential predicate upon which they rest takes into consideration certain facts, they were not disputed below, and their existence was 662 OCTOBER TERM, 1899. Opinion of .the Court. not denied in the argument at bar. They may be assumed therefore, as being unchallenged for the purpose of the legal questions presented. We come, then, to the immediate consideration of the propositions above referred to in the order stated. 1st. The conceded facts from which it was deduced as a matter of law that the carriers were operating “ under a common control, management or arrangement for a continuous carriage or shipment” were as follows: The several carriers transported hay from Memphis under through bills of lading, by continuous carriage, to Summerville and Charleston. The several roads shared in an agreed rate on traffic to Charleston and in a precisely equal in amount rate on traffic to Summerville. On shipments to Summerville, however, there was added to the Charleston rate the amount of the local rate from Charleston to Summerville, the benefit of which additional exaction was solely received by the local road on which Summerville was situated. The contention that under this state of facts the carriers did not constitute a continuous line, bringing them within the control of the Act to regulate Commerce, is no longer open to controversy in this court. In Gin., W. 0. (& Texas, Pacific Railway v. Interstate Commerce Commission, 162 U. S. 184, decided since the case in hand was before the Commission and the Circuit Court, it was held under a state of facts substantially similar to that here found that the carriers were thereby subject to the Act to regulate Commerce. 2d. It is, as we have said, uncontroverted that all the competition relied on by the carriers, to establish that there was a dissimilarity of circumstance and condition, arose solely from two sources; either that originating at Memphis, the initial point of the traffic, from the presence there of carriers who were subject to the provisions of the Commerce Act, or competition based on the fact that Charleston was connected with or accessible to lines of rail and water communication which brought it in relation with many other places and markets other than Memphis, thereby creating competition between Memphis and Charleston, the claim being that Memphis would have been deprived of the benefits of the Charleston traffic, and Charles- LOUISVILLE &c. RAILROAD CO. u BEHLMER. 663 Opinion of the Court. ton would be also cut off from the Memphis supply if the rates from Memphis to Charleston had not been made lower to meet the competition at Charleston. The construction of the fourth section of the Act to regulate Commerce and the question whether competition which materially operated on traffic and rates was a proper subject to be considered by a carrier in charging a greater rate for the shorter than was asked for the longer distance, on account of the dissimilarity of circumstance and condition produced by such competition, has recently, after elaborate argument and great consideration, been passed upon by this court. In Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, the facts as stated by the court which are pertinent to the legal question now under consideration were briefly as follows (pp. 197-200): “ The Interstate Commerce Commission entered an order directing the railway to forthwith cease and desist from carrying any article of imported traffic shipped from any foreign port through any port of entry of the United States, or any port of entry in a foreign country adjacent to the United States, upon through bills of lading destined to any place within the United States, at any other than upon the inland tariff covering other freight from such port of entry to such place of destination, or at any other than the same rates established in such inland tariff for the carriage of other like kind of freight, in the elements of bulk, weight, value and expense of carriage. . . The railway company refused to obey the order, and a proceeding was initiated by complaint filed in the Circuit Court to compel it to do so. The substance of the answer of the railroad, so far as material to the matter now under review, was thus recited by the court (pp. 205-6): “The answer of the Texas and Pacific Railway Company to the petition of the New York Board of Trade and Transportation before the Interstate Commerce Commission, and the answer of said company to the petition of the Commission filed in the Circuit Court, allege that rates for the transportation of commodities from Liverpool and London, England, to San Francisco, California, are in effect fixed and controlled hy the competition of sailing vessels for the entire distance; 664 OCTOBER TERM, 1899. Opinion of the Court. by steamships and sailing vessels in connection with railroads across the Isthmus of Panama; by steamships and sailing vessels from Europe to New Orleans, connecting there under through arrangements with the Southern Pacific Railway Company to San Francisco: That, unless the defendant company charges substantially the rates specified in its answer, it would be prevented, by reason of the competition aforesaid, from engaging in the carrying and transportation of property and import traffic from Liverpool and London to San Francisco, and would lose the revenue derived by it therefrom, which is considerable, and important and valuable to said company: That the rates charged by it are not to the prejudice or disadvantage of New Orleans, and work no injury to that community, because, if said company is prevented from participating in said traffic, such traffic would move via the other routes and lines aforesaid without benefit to New Orleans, but, on the contrary, to its disadvantage: That the foreign or import traffic is upon orders by persons, firms and corporations in San Francisco and vicinity buying direct of first hands in London, Liverpool and other European markets; and if the order of the Commission should be carried into effect it would not result in discontinuance of that practice or in inducing them to buy in New Orleans in any event: That the result of the order would be to injuriously affect the defendant company in the carriage of articles of foreign imports to Memphis, St. Louis, Kansas City and other Missouri River points. . . .” After stating that the foregoing facts were fully established by the proof and in effect conceded, and after remarking (p. 207) that they 44 would seem to constitute 4 circumstances and conditions ’ worthy of consideration, when carriers are charged with being guilty of unjust discrimination or of giving unreasonable and undue preference or advantage to any person or locality,” the court observed (p. 217): 44 The Commission justified its action wholly upon the construction put by it on the Act to regulate Commerce, as forbidding the Commission to consider the 4 circumstances and conditions ’ attendant upon the foreign traffic as such 4 circum- LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 665 Opinion of the Court. stances and conditions ’ as they are directed in the act to consider. The Commission thought it was constrained by the act to regard foreign and domestic traffic as like kinds of traffic under substantially similar circumstances and conditions, and that the action of the defendant company in procuring through traffic that would, except for the through rates, not reach the port of New Orleans, and in taking its pro rata share of such rates, was an act of ‘ unjust discrimination,’ within the meaning of the act. “ In so construing the act we think the Commission erred.” Later, in recurring to the subject of competition as creating dissimilarity of circumstance and condition, the court said (p. 233): “That among the circumstances and conditions to be considered, as well in the case of traffic originating in foreign ports as in the case of traffic originating within the limits of the United States, competition that affects rates should be considered, and in deciding whether rates and charges made at a low rate to secure foreign freights which would otherwise go by other competitive routes are or are not undue and unjust, the fair interests of the carrier companies and the welfare of the community which is to receive and consume the commodities are to be considered.” In Interstate Commerce Commission x. Alabama Midland Railway, 168 IL S. 144, the controversy was this: A proceeding was commenced to compel a carrier to obey an order of the Commission forbidding the charge of a lesser rate for transportation to Montgomery, the longer distance, than was charged to Troy on the same line, the shorter distance. The nature of the competition relied on by the carriers is fully shown by a statement in the opinion, referring to one of the assignments of error made in the cause. The court said (lb. p. 162): “Errors are likewise assigned to the action of the court in having failed and refused to affirm and enforce the report and opinion of the Commission, wherein it was found and decided, among other things, that the defendants, common carriers which participate in the transportation of class goods to Troy 666 OCTOBER TERM, 1899. Opinion of the Court. from Louisville, St. Louis and Cincinnati, and from New York, Baltimore and other Northeastern points, and the defendants, common carriers which participate in the transportation of phosphate rock from South Carolina and Florida to Troy, and the defendants, common carriers which participate in the transportation of cotton from Troy to the ports of New Orleans, Brunswick, Savannah, Charleston, West Point or Norfolk, as local shipments or for export, have made greater charges, under substantially similar circumstances and conditions, for the shorter distance to or from Troy than for longer distances over the same lines in the same direction, and have unjustly discriminated in rates against Troy, and subjected said place and dealers and shippers therein to undue and unreasonable prejudice and disadvantage in favor of Montgomery, Eufaula, Columbus and other places and localities and dealers and shippers therein, in violation of the provisions of the Act to regulate Commerce.” It will thus be observed that the facts presented were, in legal effect, the equivalent of those arising on this record. The competition which the carrier asserted had created such dissimilarity of circumstance and condition as justified, on its own motion, the lesser charge for the longer than was made for the shorter distance, was competition not only arising by water transportation, but alleged to spring from common carriers who were confessedly subject to the control of the Act. to regulate Commerce. The error which it was asserted the record contained was that such competition had been held, by the lower courts, sufficient to create dissimilar circumstances and conditions, and that the right of the carrier to avail himself of such dissimilarity without the previous assent of the Commission had been also sustained. This court said (pp. 162-3): “Whether competition between lines of transportation to Montgomery, Eufaula and Columbus justifies the giving of those cities a preference or advantage in rates over Troy, and, if so, whether such a state of facts justifies a departure from equality of rates without authority from the Interstate Commerce Commission under the proviso of the fourth section LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 667 Opinion, of the Court. of the act, are questions of construction of the statute, and are to be determined before we reach the question of fact in this case.” Proceeding to the question of law, the construction of the fourth section, which was involved in supporting the interpretation of the Commission, it was stated, as follows: “ It is contended in the brief filed on behalf of the Interstate Commerce Commission that the existence of rival lines of transportation, and consequently, of competition for the traffic, are not facts to be considered ... when determining whether property transported over the same line is carried, ‘ under substantially similar circumstances and conditions ’ as that phrase is found in the fourth section of the act.” The court then examined this question, and after citing from an opinion of Judge Cooley in the matter of In re Louisville de Nashville Railroad, 1 Int. C. 0. Rep. 31, 78, said (p. 164): “ That competition is one of the most obvious and effective circumstances that make the conditions, under which a long and short haul is performed substantially dissimilar, and as such must have been in the contemplation of Congress in the passage of the Act to regulate Commerce, has been held by many of the Circuit Courts. It is sufficient to cite a few of the number: Ex parte Koehler, 31 Fed. Rep. 315; Missouri Pacific Railway v. Texas de Pacific Railway, 31 Fed. Rep. 862; Interstate Commerce Commission v. Atchison, Topeka de. Railroad, 50 Fed. Rep. 295; Same v. New Orleans de Texas Pacific Railroad, 56 Fed. Rep. 925, 943; Behlmer v. Louisville de Nashville Railroad, 71 Fed. Rep. 835; Interstate Commerce Commission v. Louisville da Nashville Railroad, 73 Fed. Rep. 409.” It is to be remarked that among the cases approvingly cited in the passage just quoted will be found the opinion of the Circuit Court in the very case now before us, which opinion was opposed to the construction of the law taken by the Commission and to that announced by the Circuit Court of Appeals in this cause. Referring to the claim that under a correct interpretation of the proviso of the fourth section carriers were not allowed to avail themselves of dissimilar 668 OCTOBER TERM, 1899. Opinion of the Court. circumstances and conditions, arising from competition, without the previous assent of the Commission, the court again cited from an opinion of the Interstate Commerce Commission delivered by Judge Cooley, as follows (pp. 168-169): “ That which the act does not declare unlawful must remain lawful if it was so before, and that which it fails to forbid the carrier is left at liberty to do, without permission of any one. . . . The charging or receiving the greater compensation for the shorter than for the longer haul is seen to be forbidden only when both are under substantially similar circumstances and conditions ; and, therefore, if in any case the carrier, without first obtaining an order of relief, shall depart from the general rule, its doing so will not alone convict it of illegality, since, if the circumstances and conditions of the two hauls are dissimilar, the statute is not violated. . . . Beyond question, the carrier must judge for itself what are the ‘substantially similar circumstances and conditions’ which preclude the special rate, rebate or drawback, which is made unlawful by the second section, since no tribunal is empowered to judge for it until after the carrier has acted, and then only for the purpose of determining whether its action constitutes a violation of law. The carrier judges on peril of the consequences; but the special rate, rebate or drawback which it grants is not illegal when it turns out that the circumstances and conditions were not such as to forbid it; and as Congress clearly intended this, it must also, when using the same words in the fourth section, have intended that the carrier, whose privilege was in the same way limited by them, should in the same way act upon its judgment of the limiting circumstances and conditions.” And the approval of the construction given to the act in the passage from the opinion of Judge Cooley was not left to implication, since the court added (p. 169): “ The view thus expressed has been adopted in several of the Circuit Courts, {Interstate Commerce Commission v. Atchison, Topeka dec. Railroad, 50 Fed. Rep. 295, 300; Same v. Cincinnati, N. 0. de Tex. Pac. Railway, 56 Fed. Rep. 925, 943; BehVmer n. Louisville de Nashville Railroad, 71 Fed. LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 669 Opinion of the Court. Rep. 835, 839;) and we do not think the courts below erred in following it in the present case. We are unable to suppose that Congress intended, by the fourth section and the proviso thereto, to forbid common carriers, in cases where the circumstances and conditions are substantially dissimilar, from making different rates until and unless the Commission shall authorize them so to do.” It is then settled that the construction given in this cause by the Interstate Commerce Commission and the Circuit Court of Appeals to the fourth section of the Act to regulate Commerce was erroneous, and hence that both the Interstate Commerce Commission and the Circuit Court of Appeals mistakenly considered, as a matter of law, that competition, however material, arising from carriers who were subject to the Act to regulate Commerce could not be taken into consideration, and likewise that all competition, however substantial, not originating at the initial point of the traffic, was equally, as a matter of law, excluded from view. It follows that the decree of the Circuit Court must be reversed unless it be the duty of this court to examine the evidence, which was not passed on by the Commission or the Circuit Court of Appeals, for the purpose of ascertaining whether the competition relied on was so substantial and so controlling on traffic and rates as to cause it to produce a dissimilarity of circumstance and condition within the meaning- of the fourth section of the act. A consideration of this subject leads to a solution of the third question which we have previously stated was involved in the cause. In passing, however, it is well to say that both the opinions of this court, just referred to, were announced subsequently to the decision in this case by the Interstate Commerce Commission and by the Circuit Court, and moreover that the opinion of this court in the last cause (the Midland case) was announced after the decision of the Circuit Court of Appeals of the case now here. Indeed, since the decision last referred to, it is not denied that the Interstate Commerce Commission have recognized that the interpretation previously given by it to the fourth section had been decided to be unsound, hence in the practical application of the law, since 670 OCTOBER TERM, 1899. Opinion of the Court. the decision by this court in the Midland case, the construction of the statute which was announced by the Commission in previous cases as well as in this has no longer been applied. 11 Ann. Rep. I. C. C. (1897), pp. 38, 43, 91; 7 I. C. C. Rep., pp. 456, 479, 480; Savannah Bureau of Freight d? Transportation v. Charleston <& Savannah By. Co. et al. Before determining the final question we notice certain contentions pressed in argument, whereby it is asserted that there is such a difference between the legal issues here arising and those which were presented in the cases referred to, that this case should not be controlled by them. In any event, it is argued, the action of the Commission and the Circuit Court of Appeals in this controversy was of such a nature as to render the previous rulings of this court inapposite, and hence it is unnecessary to apply them. Whilst, it is not denied as regards competition arising from other carriers at the place of origin of the traffic, who were subject to the control of the Act to regulate Commerce, that the decision here under review is not in accord with the rulings of this court, such it is claimed is not the case as to competition not originating at the initial point of carriage. From this premise it is argued that it was correctly decided below that substantial and material competition resulting from conditions existing at the point of delivery, such as accessibility of that place to other lines of transportation from other places by rail or water, or both, was, as a matter of law, correctly decided below to be without legal efficacy in producing dissimilarity of circumstances and conditions. In this regard, then, the decree below, it is insisted, was correct. But the facts which were presented in the records passed on by this court, in the cases to which we have referred, do not justify the premise from which this presumed difference is deduced. We do not stop, however, to analyze those facts, because, granting, arguendo, the assumption upon which the suggested distinction is based, we think it is without merit. What was decided in the previous cases was that under the fourth section of the act substantial competition which materially affected transportation and rates might under the statute be competent to produce dissimilarity LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 671 Opinion of the Court. of circumstances and conditions, to be taken into consideration by the carrier in charging a greater sum for a lesser than for a longer haul. The meaning of the law was not decided to be that one kind of competition could be considered and not another kind, but that all competition, provided it possessed the attributes of producing a substantial and material effect upon traffic and rate making, was proper under the statute to be taken into consideration. Indeed, if the distinction contended for were sound it would follow that the greater and more material competition would be without weight in determining whether a dissimilarity of circumstances and conditions existed, whilst the lesser competition would be potential for such purpose. Not only this, but if the distinction be applicable, only that competition which might deflect at the point of origin, the traffic from one carrier to another would be within the purview of that portion of the fourth section now under consideration, and competition which was so great as to absolutely prevent the movement of the traffic, unless the lesser rate was exacted, would be outside of its operation. This would lead to the construction that the statute, in empowering a carrier, under certain competitive conditions, of his own volition, to exact a lesser rate for the longer haul, contemplated only the interest of some particular carrier and not at all the public interest. Whilst the unsoundness of the proposition is thus shown, from the contradiction which inheres in it, the erroneous conception upon which it rests is fully demonstrated in the following excerpt from the opinion in Texas de Pacific Pailway v. Interstate Commerce Commission, supra, 211: “So, too, it could not readily be supposed that Congress intended, when reffulatino; such commerce, to interfere with and interrupt, much less destroy, sources of trade and commerce already existing, nor to overlook the property rights of those who had invested money in the railroads of the country, nor to disregard the interests of the consumers, to furnish whom with merchandise is one of the principal objects of all systems of transportation.” Indeed, in the cases by which the controversy here before 672 OCTOBER TERM, 1899. Opinion of the Court. us is controlled, attention was pointedly called to the fact that in considering the power of the carrier, of his own motion, to charge a lesser sum for the longer haul, not only was the interest of the carrier to be taken into account, but also the interest of the public, especially at the place from which the traffic moved and the place to which it was to be delivered, and to these principles we shall before concluding again advert. The argument upon which it is claimed that even if the legal principles here involved are not to be distinguished from those established by the decisions of this court, nevertheless the decree of the Circuit Court of Appeals should be affirmed, is as follows: The Commission and the Circuit Court of Appeals, it is asserted, although they may have expressed erroneous opinions as to the construction of the statute, yet, ultimately, in substance, decided, as a matter of fact, that the competition was not of sufficient weight to bring about dissimilarity of circumstances and conditions. But this suggestion is without merit. We have shown, in our previous analysis of the action of the Commission and of the views expressed by the Circuit Court of Appeals, that whilst the facts were considered in so far as was necessary to determine that the competition was due only to certain particular causes, the result of the competition was not examined in order to ascertain the substantial materiality of its operation on traffic and rates. And this, because both the Commission and the Circuit Court of Appeals determined that competition of the particular character which they found that relied on to be, as a matter of law, however weighty in its operation on rates, was not legally entitled to be considered in reviewing the action of the carrier. This failure to consider the evidence points to the distinction between this cause and that of Cin., N\ 0. & Texas Pacific Railway n. Interstate Commerce Commission, 162 U. S. 184, upon which reliance is placed. In that case the court, from an examination of the whole record, considered that the result of the action of the Commission and the Circuit Court of Appeals had been substantially to decide not that the character of competition relied on could not be taken LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 673 Opinion of the Court. into view, but that fully weighing and considering it, sufficient proof did not result to show that it was so substantial and so material as to justify deciding that there were dissimilar circumstances and conditions. The judgment below was, because of this view as to such question, affirmed. The court said (p. 194): “ But the question was one of fact, peculiarly within the province of the Commission, whose conclusions have been accepted and approved by the Circuit Court of Appeals, and we find nothing in the record to make it our duty to draw a different conclusion.” If it be again, arguendo, conceded that the state of the record in that case was such that an analysis of the action taken below might have well led the court to a different opinion ; in other words, might have justified it in holding that both the Commission and the Circuit Court of Appeals had rested their conclusions, not on the want of proof as to the claimed competition, but solely on the absence of legal power to assert competition of the character relied on, such concession could have no influence upon the decision of this cause. This follows because the only deduction possible from the proposition would be that the particular case had been decided on a question of fact, when it should have been controlled by a question of law, which would afford no reason for the failure to apply sound principles of law to the facts of this record. It involves a complete non seguitur to assert that because legal principles may not have been applied to a given case, on the assumption that the facts did not render their application necessary, therefore, in future cases, where it was found that the facts brought the controversy within the principles, they should not be applied. It remains only to examine the last question — that is, whether this court, as a matter of first impression, should weigh the evidence for the purpose of ascertaining whether it established such substantial and material competition as justified the carrier in concluding that dissimilarity of circumstance and condition was brought about. If it were true, as asserted in the argument for the appellee, that where the inherent character of the competition was of a nature to be taken into consideration, any competition, however remote VOL. CLXXV—43 674 OCTOBER TERM, 1899. Opinion of the Court. and unsubstantial its influence on rates and traffic, would be sufficient to bring about dissimilarity of circumstances and conditions, the question would be easy of solution, for then to weigh the testimony would involve no serious duty. But this suggestion rests on an entire misconception of the adjudications of this court. In considering the right of a carrier to act on competitive conditions, deemed by him to produce dissimilarity of circumstances and conditions, the court, in Interstate Commerce Commission v. Alabama & Midland Railway, 168 U. S. 173, said: “ But it does not mean that the action of the carriers, in fixing and adjusting the rates in such instances, is not subject to revision by the Commission and the courts, when it is charged that such action has resulted in rates unjust or unreasonable, or in unjust discriminations and preferences.” Again (p. 167) it was said: “In order further to guard against any misapprehension of the scope of our decision it may be well to observe that we do not hold that the mere fact of competition, no matter what its character or extent, necessarily relieves the carrier from the restraints of the third and fourth sections, but only that these sections are not so stringent and imperative as to exclude in all cases the matter of competition from consideration in determining the questions of ‘undue or unreasonable preference or advantage,’ or what are ‘ substantially similar circumstances and conditions.’ The competition may in some cases be such as, having due regard to the interests of the public and of the carrier, ought justly to have effect upon the rates, and in such cases there is no absolute rule which prevents the Commission or the courts from taking that matter into consideration.” It follows that whilst the carrier may take into consideration the existence of competition as the producing cause of dissimilar circumstances and conditions, his right to do so is governed by the following principles: First. The absolute command of the statute that all rates shall be just and reasonable, and that no undue discrimination be brought about, though, in the nature of things, this latter consideration may LOUISVILLE &c. RAILROAD CO. v. BEHLMER. 675 Opinion of the Court. in many cases be involved in the determination of whether competition was such as created a substantial dissimilarity of condition. Second. That the competition relied upon be, not artificial or merely conjectural, but material and substantial, thereby operating on the question of traffic and rate making the right in every event to be only enjoyed with a due regard to the interest of the public, after giving full weight to the benefits to be conferred on the place from whence the traffic moved as well as those to be derived by the locality to which it is to be delivered. If, then, we were to undertake the duty of weighing the evidence, in this record, we would be called upon, as a matter of original action, to investigate all these serious considerations which were shut out from view by the Commission, and were not weighed by the Circuit Court of Appeals, because both the Commission and the court erroneously construed the statute. But the law attributes prima facie effect to the findings of fact made by the Commission, and that body, from the nature of its organization and the duties imposed upon it by the statute, is peculiarly competent to pass upon questions of fact of the character here arising. In Texas & Pacific Railway v. Interstate Commerce Commission^ (ubi supra?) the court found the fact to be that the Commission had failed to consider and give weight to the proof in the record, affecting the question before it, on a mistaken view taken by it of the law, and that on review of the action of the Commission the Circuit Court of Appeals, whilst considering that the legal conclusion of the Commission was wrong, nevertheless proceeded as a matter of original investigation to weigh the testimony and determine the facts flowing from it. The court said (p. 238): “If the Circuit Court of Appeals was of opinion that the Commission in making its order had misconceived the extent of its powers, and if the Circuit Court had erred in affirming the validity of an order made under such misconception, the duty of the Circuit Court of Appeals was to reverse the decree, set aside the order, and remand the cause to the Commission, in order that it might, if it saw fit, proceed therein according to law. The defendant was entitled to have its 676 OCTOBER TERM, 1899. Opinion of the Court. defence considered, in the first instance, at least, by the Commission upon a full consideration of all the circumstances and conditions upon which a legitimate order could be founded. The question whether certain charges were reasonable or otherwise, whether certain discriminations were due or undue, were questions of fact, to be passed upon by the Commission in the light of all facts duly alleged and supported by competent evidence, and it did not comport with the true scheme of the statute that the Circuit Court of Appeals should undertake, of its own motion, to find and pass upon such questions of fact, in a case in the position in which the present one was.” We think these views should be applied in the case now under review. In this case, however, the proceeding to enforce the order of the Commission was initiated by a private individual on behalf of himself and other interested parties not named, and the petitioner in the Circuit Court has died since the argument and submission of the cause in this court. We are of opinion, therefore, that The decree of the Circuit Court of Appeals should be reversed with costs, that the case be remanded to the Circuit Court with instructions to modify its decree adjudging that the order of the Commission be set aside with costs, by providing that the dismissal be without prejudice to the right of a party in interest to apply to the Commission to be substituted in the original proceeding before the Commission in the stead of the deceased petitioner, and that upon such substitution the Commission should proceed, upon the evidence already introduced before it or upon such evidence and any additional evidence which it might allow to be introduced, to hear and determine the matter of controversy in conformity to law. A decree will be entered accordingly, such entry to be made nunc pro tunc as of the date of the submission of the cause in this court. THE PAQUETE HABANA. 677 Syllabus. THE PAQUETE HABANA. THE LOLA. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA. Nos. 895, 396. Argued November 7, 8,1899. — Decided January 8,1900. Under the act of Congress of March 3, 1891, c. 517, this court has jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without any certificate of the District Judge as to the importance of the particular case. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for .their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. At the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. And this rule is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter. At the breaking out of the recent war with Spain, two fishing smacks — the one a sloop, 43 feet long on the keel and of 25 tons burden, and with a crew of three men, and the other a schooner, 51 feet long on the keel and of 35 tons burden, and with a crew of six men — were regularly engaged in fishing on the coast of Cuba, sailing under the Spanish flag, and each owned by a Spanish ^subject, residing in Havana; her crew, who also resided there, had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner; and her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Each vessel left Havana on a coast fishing voyage, and sailed along the coast of Cuba about two hundred miles to the west end of the island; the sloop there fished for twenty-five days in the territorial waters of Spain; and the schooner extended her fishing trip a hundred 678 OCTOBER TERM, 1899. Opinion of the Court. miles farther across the Yucatan Channel, and fished for eight days on the coast of Yucatan. On her return, with her cargo of live fish, along the coast of Cuba, and when near Havana, each was captured by one of the United States blockading squadron. Neither fishing vessel had any arms or ammunition on board; had any knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel; made any attempt to run the blockade, or any resistance at the time of her capture ; nor was there any evidence that she, or her crew, was likely to aid the enemy. Held, that both captures were unlawful, and without probable cause. The cases are stated in the opinion of the court. J/r. J. Parlcer Kirlin for appellants. Mr. Assistant Attorney General Hoyt for the United States. Mr. Joseph K. McCammon and Mr. James H. Hayden filed a brief for the captors. Mr. George A. King and Mr. William B. King filed a brief “ for certain captors.” Mr. Justice Gray delivered the opinion of the court. These are two appeals from decrees of the District Court of the United States for the Southern District of Florida, condemning two fishing vessels and their cargoes as prize of war. Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crevy from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading squadron, she had no knowledge of the existence of the war, or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. The Paquete Habana was a sloop, 43 feet long on the keel, THE PAQUETE HABARA. 679 Opinion of the Court. and of 25 tons burden, and had a crew of three Cubans, including the master, who had a fishing license from the Spanish Government, and no other commission or license. She left Havana March 25, 1898; sailed along the coast of Cuba to Cape San Antonio at the western end of the island, and there fished for twenty-five days, lying between the reefs off the cape, within the territorial waters of Spain; and then started back for Havana, with a cargo of about 40 quintals of live fish. On April, 25, 1898, about two miles off Mariel, and eleven miles from Havana, she was captured by the United States gunboat Castine. The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six Cubans, including the master, and no commission or license. She left Havana April 11, 1898, and proceeded to Campeachy Sound off Yucatan, fished there eight days, and started back for Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by the United States steamship Cincinnati, and was warned not to go into Havana, but was told that she would be allowed to land at Bahia Honda. She then changed her course, and put for Bahia Honda, but on the next morning, when near that port, was captured by the United States steamship Dolphin. Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of each vessel and her cargo as prize of war was there filed on April 27, 1898; a claim was interposed by her master, on behalf of himself and the other members of the crew, and of her owner; evidence was taken, showing the facts above stated; and on May 30, 1898, a final decree of condemnation and sale was entered, “ the court not being satisfied that as a matter of law, without any ordinance, treaty or proclamation, fishing vessels of this class are exempt from seizure.” Each vessel was thereupon sold by auction ; the Paquete Habana for the sum of $490; and the Lola for the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo. It has been suggested, in behalf of the United States, that 680 OCTOBER TERM, 1899. Opinion of the Court. this court has no jurisdiction to hear and determine these appeals, because the matter in dispute in either case does not exceed the sum or value of $2000, and the District Judge has not certified that the adjudication involves a question of general importance. The suggestion is founded on section 695 of the Revised Statutes, which provides that “ an appeal shall be allowed to the Supreme Court from all final decrees of any District Court in prize causes where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars; and shall be allowed, without reference to the matter in dispute, on the certificate of the District Judge that the adjudication involves a question of general importance.” The Judiciary Acts of the United States, for a century after the organization of the Government under the Constitution, did impose pecuniary limits upon appellate jurisdiction. In actions at law and suits in equity, the pecuniary limit of the appellate jurisdiction of this court from the Circuit Courts of the United States was for a long time fixed at $2000. Acts of September 24, 1789, c. 20, § 22 ; 1 Stat. 84; March 3,1803, c. 40; 2 Stat. 244; Gordon v. Ogden, 3 Pet. 33; Rev. Stat. §§ 691, 692. In 1875 it was raised to $5000. Act of February 16, 1875, c. 77, § 3; 18 Stat. 316. And in 1889 this was modified by providing that, where the judgment or decree did not exceed the sum of $5000, this court should have appellate jurisdiction upon the question of the jurisdiction of the Circuit Court, and upon that question only. Act of February 25,1889, c. 236, § 1; 25 Stat. 693; Parker v. Ormsby, 141 U. S. 81. As to cases of admiralty and maritime jurisdiction, including prize causes, the Judiciary Act of 1789, in § 9, vested the original jurisdiction in the District Courts, without regard to the sum or value in controversy; and in § 21, permitted an appeal from them to the Circuit Court where the matter in dispute exceeded the sum or value of $300. 1 Stat. 77, 83; The Betsey, 3 Dall. 6, 16; The Amiable Nancy, 3 Wheat. 546 ; Stratton v. Jarvis, 8 Pet. 4, 11. By the act of March 3, 1803, c. 40, appeals to the Circuit Court were permitted from all final decrees of a District Court where THE PAQUETE HABARA. 681 Opinion of the Court. the matter in dispute exceeded the sum or value of $50; and from the Circuit Courts to this court in all cases “of admiralty and maritime jurisdiction, and of prize or no prize,” in which the matter in dispute exceeded the sum or value of $2000. 2 Stat. 244; Jenks v. Lewis, 3 Mason, 503; Stratton n. Jarvis, above cited ; The Admiral, 3 Wall. 603, 612. The acts of March 3, 1863, c. 86, § 7, and June 30, 1864, c. 174, § 13, provided that appeals from the District Courts in prize causes should lie directly to this court, where the amount in controversy exceeded $2000, “ or on the certificate of the District Judge that the adjudication involves a question of general importance.” 12 Stat. 760; 13 Stat. 310. The provision of the act of 1803, omitting the words, “ and of prize or no prize,” was reenacted in section 692 of the Revised Statutes ; and the provision of the act of 1864, concerning prize causes, was substantially reenacted in section 695 of the Revised Statutes, already quoted. But all this has been changed by the act of March 3, 1891, c. 517, establishing the Circuit Courts of Appeals, and creating a new and complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount involved. 26 Stat. 826. By that act, as this court has declared, the entire appellate jurisdiction from the Circuit and District Courts of the United States was distributed, “ according to the scheme of the act,” between this court and the Circuit Courts of Appeals thereby established, “ by designating the classes of cases ” of which each of these courts was to have final jurisdiction. McLish n. Roff, 141 U. S. 661, 666; American Construction Co. v. Jacksonville Railway, 148 U. S. 372, 382; Carey v. Houston & Texas Railway, 150 U. S4170, 179. The intention of Congress, by the act of 1891, to make the nature of the case, and not the amount in dispute, the test of the appellate jurisdiction of this court from the District and Circuit Courts clearly appears upon examination of the leading provisions of the act. Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter be taken from a District Court 682 OCTOBER TERM, 1899. Opinion of the Court. to a Circuit Court; but that all appeals, by writ of error or otherwise, from the District Courts, “ shall only be subject to review ” in this court, or in the Circuit Court of Appeals, “as is hereinafter provided,” and “ the review, by appeal, by writ of error, or otherwise,” from the Circuit Courts, “shall be had only ” in this court, or in the Circuit Court of Appeals, “ according to the provisions of this act regulating the same.” Section 5 provides that “ appeals or writs of error may be taken from the District Courts, or from the existing Circuit Courts, direct to the Supreme Court, in the following cases:” First. “ In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.” This clause includes “any case,” without regard to amount, in which the jurisdiction of the court below is in issue; and differs in this respect from the act of 1889, above cited. Second. “From the final sentences and decrees in prize causes.” This clause includes the whole class of “the final sentences and decrees in prize causes,” and omits all provisions of former acts regarding amount in controversy, or certificate of a District Judge. Third. “ In cases of conviction of a capital or otherwise infamous crime.” This clause looks to the nature of the crime, and not to the extent of the punishment actually imposed. A crime which might have been punished by imprisonment in a penitentiary is an infamous crime, even if the sentence actually pronounced is of a small fine only. Ex parte Wilson, 114 U. S. 417, 426. Consequently, such a sentence for such a crime was subject to the appellate jurisdiction of this court, under this clause, until this jurisdiction, so far as regards crimes not capital, was transferred to the Circuit Court of Appeals by the act of January 20, 1897, c. 68. 29 Stat. 492. Fourth. “ In any case that involves the construction or application of the Constitution of the United States.” Fifth. “ In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question.’ THE PAQUETE HABANA. 683 Opinion of the Court. Sixth. “ In any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.” Each of these last three clauses, again, includes “ any case ” of the class mentioned. They all relate to what are commonly called Federal questions, and cannot reasonably be construed to have intended that the appellate jurisdiction of this court over such questions should be restricted by any pecuniary limit — especially in their connection with the succeeding sentence of the same section: “ Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a State, nor the construction of the statute providing for review of such cases.” Writs of error from this court to review the judgments of the highest court of a State upon such questions have never been subject to any pecuniary limit. Act of September 24, 1789, c. 20, § 25 ; 1 Stat. 85; Buel v. Van Ness, 8 Wheat. 312; act of February 5, 1867, c. 28, § 2; 14 Stat. 386; Rev. Stat. § 709. By section 6 of the act of 1891, this court is relieved of much of the appellate jurisdiction that it had before; the appellate jurisdiction from the District and Circuit Courts “ in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law,” is vested in the Circuit Court of Appeals; and its decisions in admiralty cases, as well as in cases arising under the criminal laws, and in certain other classes of cases, are made final, except that that court may certify to this court questions of law, and that this court may order up the whole case by writ of certiorari. It is settled that the words “unless otherwise provided by law,” in this section, refer only to provisions of the same act, or of contemporaneous or subsequent acts, and do not include provisions of earlier statutes. Lau Ow Bew v. United States, 144 U. S. 47, 57; Hubbard v. Soby, 146 U. S. 56; American Construction Co. v. Jacksonville Railway, 148 U. S. 372, 383. The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this court or of the Circuit Court of Appeals, from a District or Circuit Court of the United States. The only pecuniary limit imposed is one of 684 OCTOBER TERM, 1899. Opinion of the Court. $1000 upon the appeal to this court of a case which has been once decided on appeal in the Circuit Court of Appeals, and in which the judgment of that court is not made final by section 6 of the act. Section 14 of the act of 1891, after specifically repealing section 691 of the Revised Statutes and section 3 of the act of February 16,1875, further provides that “ all acts and parts of acts relating to appeals or writs of error, inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act, are hereby repealed.” 26 Stat. 829, 830. The object of the specific repeal, as this court has declared, was to get rid of the pecuniary limit in the acts referred to. McLish v. Hoff, 141 U. S. 661, 667. And, although neither section 692 nor section 695 of the Revised Statutes is repealed by name, yet, taking into consideration the general repealing clause, together with the affirmative provisions of the act, the case comes within the reason of the decision in an analogous case, in which this court said: “ The provisions relating to the subject-matter under consideration are, however, so comprehensive, as well as so variant from those of former acts, that we think the intention to substitute the one for the other is necessarily to be inferred and must prevail.” Fisk v. Henarie, 142 U. S. 459, 468. The decision of this court in the recent case of United States v. Rider, 163 U. S. 132, affords an important, if not controlling precedent. From the beginning of this century until the passage of the act of 1891, both in civil and in criminal cases, questions of law, upon which two judges of the Circuit Court were divided in opinion, might be certified by them to this court for decision. Acts of: April 29, 1802, c. 31, § 6; 2 Stat. 159; June 1, 1872, c. 255, § 1; 17 Stat. 196; Rev. Stat. §§ 650-652, 693, 697; Insurance Co. n. Dunham, 11 Wall. 1, 21; United States n. Sanges, 144 U. S. 310, 320. But in United States v. Rider, it was adjudged by this court that the act of 1891 had superseded and repealed the earlier acts authorizing questions of law to be certified from the Circuit Court to this court; and the grounds of that adjudication sufficiently appear by THE PAQUETE HABANA. 685 Opinion of the Court. the statement of the effect of the act of 1891 in two passages of the opinion: “ Appellate jurisdiction was given in all criminal cases by writ of error, either from this court or from the Circuit Courts of Appeals, and in all civil cases by appeal or error, without regard to the amount in controversy,, except as to appeals or writs of error to or from the Circuit Courts of Appeals in cases not made final, as specified in § 6.” “ It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate.” 163 U. S. 138-140. That judgment was thus rested upon two successive propositions : First, that the act of 1891 gives appellate jurisdiction, either to this court or to the Circuit Court of Appeals, in all criminal cases, and in all civil cases “ without regard to the amount in controversy.” Second, that the act, by its terms, its scope and its obvious purpose, “furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate.” As was long ago said by Chief Justice Marshall, “the spirit as well as the letter of a statute must be respected,.and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent.” Durousseau v. United States, 6 Cranch, 307, 314. And it is a well settled rule in the construction of statutes, often affirmed and applied by this court, that, “ even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.” United States v. Tynen, 11 Wall. 88, 92; King n. Cornell, 106 U. S. 395, 396; Tracy v. Tuffly, 134 IL 8. 206, 223; Fisk v. Henarie, 142 U. S. 459, 468; District of Columbia v. Hutton, 143 U. S. 18, 27; United States v. Healey, 160 U. S. 136, 147. We are of opinion that the act of 1891, upon its face, read 686 OCTOBER TERM, 1899. Opinion of the Court. in the light of settled rules of statutory construction, and of the decisions of this court, clearly manifests the intention of Congress to cover the whole subject of the appellate jurisdiction from the District and Circuit Courts of the United States, so far as regards in what cases, as well as to what courts, appeals may be taken, and to supersede and repeal, to this extent, all the provisions of earlier acts of Congress, including those that imposed pecuniary limits upon such jurisdiction; and, as part of the new scheme, to confer upon this court jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without any certificate of the District Judge as to the importance of the particular case. We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were subject to capture , by the armed vessels of the United States during the recent war with Spain. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. . This doctrine, however, has been earnestly contested at the bar; and no complete collection of the instances illustrating it is to be found, so far as we are aware, in a single published work, although many are referred to and discussed by the writers on international law, notably in 2 Ortolan, Regies Internationales et Diplomatie de la Mer, (4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit International, (5th ed.) §§ 2367-2373; in De Boeck, Propriety Priv6e Ennemie sous Pavilion Ennemi, §§ 191-196; and in Hall, International Law, (4th. ed.) § 148. It is therefore worth the while to trace the history of the rule, from the earliest accessible sources, through the increasing recognition of it, with occasional setbacks, to what we may now justly consider as its final establishment in our own country and generally throughout the civilized world. The earliest acts of any government on the subject, men THE PAQUETE HABANA. 687 Opinion of the Court. tioned in the books, either emanated from, or were approved by, a King of England. In 1403 and 1406, Henry IV issued orders to his admirals and other officers, entitled “ Concerning Safety for Fishermen — De Securitate pro Piscatoribus.” By an order of October 26, 1403, reciting that it was made pursuant to a treaty between himself and the King of France; and for the greater safety of the fishermen of either country, and so that they could be, and carry on their industry, the more safely on the sea, and deal with each other in peace; and that the French King had consented that English fishermen should be treated likewise; it was ordained that French fishermen might, during the then pending season for the herring fishery, safely fish for herrings and all other fish, from the harbor of Gravelines and the island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an order of October 5, 1406, he took into his safe conduct, and under his special protection, guardianship and defence, all and singular the fishermen of France, Flanders and Brittany, with their fishing vessels and boats, everywhere on the sea, through and within his dominions, jurisdictions and territories, in regard to their fishery, while sailing, coming and going, and, at their pleasure, freely and lawfully fishing, delaying or proceeding, and returning homeward with their catch of fish, without any molestation or hindrance whatever; and also their fish, nets, and other property and goods soever; and it was therefore ordered that such fishermen should not be interfered with, provided they should comport themselves well and properly, and should not, by color of these presents, do or attempt, or presume to do dr attempt, anything that could prejudice the King, or his kingdom of England, or his subjects. 8 Rymer’s Foedera, 336, 451. The treaty made October 2, 1521, between the Emperor Charles V and Francis I of France, through their ambassadors, recited that a great and fierce war had arisen between them, because of which there had been, both by land and by sea, frequent depredations and incursions on either side, to the grave detriment and intolerable injury of the innocent 688 OCTOBER TERM, 1899. Opinion of the Coyrt. subjects of each; and that a suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy, the fishermen did not dare to go out, whereby the subject of their industry, bestowed by heaven to allay the hunger of the poor, would wholly fail for the year, unless it were otherwise provided — quo fit, ut piscaturm commoditas, ad pauperum levandam famem a codesti numine concessa, ces-sare hoc anno omnino debeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each sovereign, fishing in the sea, or exercising the calling of fishermen, could and might, until the end of the next January, without incurring any attack, depredation, molestation, trouble or hindrance soever, safely and freely, everywhere in the sea, take herrings and every other kind of fish, the existing war by land and sea notwithstanding; and further that, during the time aforesaid, no subject of either sovereign should commit, or attempt or presume to commit, any depredation, force, violence, molestation or vexation, to or upon such fishermen, or their vessels, supplies, equipments, nets and fish, or other goods soever truly appertaining to fishing. The treaty was made at Calais, then an English possession. It recites that the ambassadors of the two sovereigns met there at the earnest request of Henry VIII, and with his countenance, and in the presence of Cardinal Wolsey, his chancellor and representative. And towards the end of the treaty it is agreed that the said King and his said representative, “ by whose means the treaty stands concluded, shall be conservators of the agreements therein, as if thereto by both parties elected and chosen.” 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353. The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. Bynkershoek, Quaestiones Juris Publicm, lib. 1, c. 3; 1 Emerigon des Assurances, c. 4, sect. 9; c. 12, sect. 19, § 8. France, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen. In the compilation entitled Us et Coutumes de la Mer, published by Cleirac in 1661, and in the third part thereof, containing “Maritime or Admiralty Jurisdiction — ^ Jurisdiction de Ify THE PAQUETE HABANA. 689 Opinion of the Court. Marine ou d'Admiraute— as well in time of peace as in time of war,” article 80 is as follows : “ The admiral may in time of war accord fishing truces — tresves pescheresses — to the enemy and to his subjects ; provided that the enemy will likewise accord them to Frenchmen.” Cleirac, 544. Under this article, reference is made to articles 49 and 79 respectively of the French ordinances concerning the Admiralty in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes, 319; 2 Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart’s Chronicles: « Fishermen on the sea, whatever war there were in France and England, never did harm to one another; so they are friends, and help one another at need — Pescheurs sur mer, quelque guerre gui soit en France et Angleterre, jamais ne se firent mat Tun a V autre ; aingois sont amis^ et day dent Tun d V autre au besoin.” The same custom would seem to have prevailed in France until towards the end of the seventeenth century. For example, in 1675, Louis XIV and the States General of Holland, by mutual agreement, granted to Dutch and French fishermen the liberty, undisturbed by their vessels of war, of fishing along the coasts of France, Holland and England. D’Hauterive et De Cussy, Trails de Commerce, pt. 1, vol. 2, p. 278. But by the ordinances of 1681 and 1692 the practice was discontinued, because, Valin says, of the faithless conduct of the enemies of France, who, abusing the good faith with which she had always observed the treaties, habitu-ally carried off her fishermen, while their own fished in safety. 2 Valin sur 1’Ordonnance de la Marine, (1776) 689, 690; 2 Ortolan, 52; De Boeck, § 192. The doctrine which exempts coast fishermen with their vessels and cargoes from capture as prize of war has been familiar to the United States from the time of the War of Independence. On June 5,1779, Louis XVI, our ally in that war, addressed a letter to his admiral, informing him that the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention to that class of his subjects VOL. CLXXV—44 690 OCTOBER TERM, 1899. Opinion of the Court. which devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought that the example which he should give to his enemies, and which could have no other source than the sentiments of humanity which inspired him, would determine them to allow to fishermen the same facilities which he should consent to grant; and that he had therefore given orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish, even if not caught by those vessels; provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with the enemy; and the admiral was directed to communicate the King’s intentions to all officers under his control. By a royal order in council of November 6,1780, the former orders were confirmed; and the capture and ransom, by a French cruiser, of The John and Sarah, an English vessel, coming from Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises, (ed. 1784) 721, 901, 903. Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by which it was “ordered, that all causes of prize of fishing boats or vessels taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under fifty tons burden, and not more than six in number.” Marriott’s Formulary, 4. But by the statements of his successor, and of both French and English writers, it appears that England, as well as France, during the American Revolutionary War, abstained from interfering with the coast fisheries. The Young Jacob and Johanna, 1 C. Rob. 20; 2 Ortolan, 53 ; Hall, § 148. In the treaty of 1785 between the United States and Prussia, article 23, (which was proposed by the American Commissioners, John Adams, Benjamin Franklin and Thomas Jefferson, and is said to have been drawn up by Franklin,) provided that, if war should arise between the contracting parties, “all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers and fishermen, THE PAQUETE HABANA. 691 Opinion of the Court. unarmed and inhabiting unfortified towns, villages or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons; nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted, by the armed force of the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.” 8 Stat. 96; 1 Kent Com. 91 note; Wheaton’s History of the Law of Nations, 306, 308. Here was the clearest exemption from hostile molestation or seizure of the persons, occupations, houses and goods of unarmed fishermen inhabiting unfortified places. The article was repeated in the later treaties between the United States and Prussia of 1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his edition of Wheaton’s International Law, says: “ In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war.” Wheaton’s International Law, (8th ed.) § 345, note 168. Since the United States became a nation, the only serious interruptions, so far as we are informed, of the general recognition of the exemption of coast fishing vessels from hostile capture, arose out of the mutual suspicions and recriminations of England and France during the wars of the French Revolution. In the first years of those wars, England having authorized the capture of French fishermen, a decree of the French National Convention of October 2, 1793, directed the executive power “to protest against this conduct, theretofore without example; to reclaim the fishing boats seized; and, in case of refusal, to resort to reprisals.” But in July, 1796, the Committee of Public Safety ordered the release of English fishermen seized under the former decree, “not considering them as prisoners of war.” La Nostra Segnora de la Piedad, (1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit Commercial, (2d ed.) 266, 267. 692 OCTOBER TERM, 1899. Opinion of the Court. On January 24, 1798, the English Government, by express order, instructed the commanders of its ships to seize French and Dutch fishermen with their boats. 6 Martens, Recueil des Traites, (2d ed.) 505 ; 6 Schoell, Histoire des Traites, 119 • 2 Ortolan, 53. After the promulgation of that order, Lord ■Stowell (then Sir William Scott) in the High Court of Admiralty of England condemned small Dutch fishing vessels as prize of war. In one case, the capture was in April, 1798 and the decree was made November 13, 1798. The Young Jacob and Johanna, 1 C. Rob. 20. In another case, the decree was made August 23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note. For the year 1800, the orders of the English and French governments and the correspondence between them may be found in books already referred to. 6 Martens, 503-512; 6 Schoell, 118-120; 2 Ortolan, 53, 54. The doings for that year may be summed up as follows : On March 27, 1800, the French, government, unwilling to resort to reprisals, reenacted the orders given by Louis XVI in 1780, above mentioned, prohibiting any seizure by the French ships of English fishermen, unless armed, or proved to have made signals to the enemy. On May 30, 1800, the English government, having received notice of that action of the French government, revoked its order of January 24, 1798. But, soon afterwards, the English government complained that French fishing boats had been made into fireboats at Flushing, as well as that the French government had impressed, and had sent to Brest, to serve in its flotilla, French fishermen and their boats, even those whom the English had released on condition of their not serving; and on January 21, 1801, summarily revoked its last order, and again put in force its order of January 24, 1798. On February 16,1801, Napoleon Bonaparte, then First Consul, directed the French commissioner at London to return at once to France, first declaring to the English government that its conduct, “ contrary to all the usages of civilized nations, and to the common law which governs them, even in time of war, gave to the existing war a character of rage and bitterness which destroyed even the relations usual in a loyal war,” and THE PAQUETE HABANA. 693 Opinion of the Court. “ tended only to exasperate the two nations, and to put off the term of peace;” and that the French government, having always made it “a maxim to alleviate as much as possible the evils of war, could not think, on its part, of rendering wretched fishermen victims of a prolongation of hostilities, and would abstain from all reprisals.” On March 16, 1801, the Addington Ministry, having come into power in England, revoked the orders of its predecessors against the French fishermen; maintaining, however, that “the freedom of fishing was nowise founded upon an agreement, but upon a simple concession; ” that “ this concession would be always subordinate to the convenience of the moment,” and that “it was never extended to the great fishery, or to commerce in oysters or in fish.” And the freedom of the coast fisheries was again allowed on both sides. 6 Martens, 514; 6 Schoell, 121; 2 Ortolan, 54; Manning1, Law of Nations, (Amos ed.) 206. Lord Stowell’s judgment in The Young Jacob and Johanna, 1 C. Rob. 20, above cited, was much relied on by the counsel for the United States, and deserves careful consideration. The vessel there condemned is described in the report as “a small Dutch fishing vessel taken April, 1798, on her return from the Dogger bank to Holland; ” and Lord Stowell, in delivering judgment, said: “ In former wars, it has not been usual to make captures of these small fishing vessels; but this rule was a rule of comity only, and not of legal decision; it has prevailed from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. In the present war there has, I presume, been sufficient reason for changing this mode of treatment, and, as they are brought before me for my judgment, they must be referred to the general principles of this court; they fall under the character and description of the last class of cases; that is, of ships constantly and exclusively employed in the enemy’s trade.” And he added: “ It is a farther satisfaction to me in giving this judgment to observe that the facts also bear strong marks of a false and fraudulent transaction.” 694 OCTOBER TEBM, 1899. Opinion of the Court. Both the capture and condemnation were within a year after the order of the English government of January 24, 1798, instructing the commanders of its ships to seize French and Dutch fishing vessels, and before any revocation of that order. Lord Stowell’s judgment shows that his decision was based upon the order of 1798, as well as upon strong evidence of fraud. Nothing more was adjudged in the case. But some expressions in his opinion have been given so much weight by English writers, that it may be well to examine them particularly. The opinion begins by admitting the known custom in former wars not to capture such vessels — adding, however, “ but this was a rule of comity only, and not of legal decision.” Assuming the phrase “legal decision” to have been there used, in the sense in which courts are accustomed to use it, as equivalent to “ judicial decision,” it is true that, so far as appears, there had been no such decision on the point in England. The word “ comity ” was apparently used by Lord Stowell as synonymous with courtesy or good will. But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law. As well said by Sir James Mackintosh: “In the present century a slow and silent, but very substantial mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time, it is raised from the rank of mere usage, and becomes part of the law of nations.” Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360. The French prize tribunals, both before and after Lord Stowell’s decision, took a wholly different view of the general question. In 1780, as already mentioned, an order in council of Louis XVI had declared illegal the capture by a French cruiser of The John and Sarah, an English vessel, coming from Holland, laden with fresh fish. And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of fish, having no more crew than was needed for her management, and for serving the nets, on a trip of several days, had been cap- THE PAQUETE HABANA. 695 Opinion of the Court. tured in April, 1801, by a French cruiser, three leagues off the coast of Portugal, the Council of Prizes held that the capture was contrary to “ the principles of humanity, and the maxims of international law,” and decreed that the vessel, with the fish on board, or the net proceeds of any that had been sold, should be restored to her master. La Nostra Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime, § 3, art. 1, 3; & C. 1 Pistoye et Duverdy, Prises Maritimes, 331; 2 De Cussy, Droit Maritime, 166. The English government, soon afterwards, more than once unqualifiedly prohibited the molestation of fishing vessels employed in catching and bringing to market fresh fish. On May 23, 1806, it was “ ordered in council, that all fishing vessels under Prussian and other colors, and engaged for the purpose of catching fish and conveying them fresh to market, with their crews, cargoes and stores, shall not be molested on their fishing voyages and bringing the same to market; and that no fishing vessels of this description shall hereafter be molested. And the Right Honorable the Lords Commissioners of His Majesty’s Treasury, the Lords Commissioners of the Admiralty and the Judge of the High Court of Admiralty are to give the necessary directions herein as to them may respectively appertain.” 5 C. Rob. 408. Again, in the order in council of May 2, 1810, which directed that “all vessels which shall have cleared out from any port so far under the control of France or her allies as that British vessels may not freely trade thereat, and which are employed in the whale fishery, or other fishery of any description, save as hereinafter excepted, and are returning or destined to return either to the port from whence they cleared, or to any other port or place at which the British flag may not freely trade, shall be captured, and condemned together with their stores and cargoes, as prize to the captors,” there were excepted “ vessels employed in catching and conveying fish fresh to market, such vessels not being fitted or provided for the curing of fish.” Edw. Adm. appx. L. Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote: “It has been usual 696 OCTOBER TERM, 1899. Opinion of the Court. in maritime wars to exempt from capture fishing boats and their cargoes, both from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of civilized nations, has fallen into disuse; and it is remarkable that both France and England mutually reproach each other with that breach of good faith which has finally abolished it.” Wheaton on Captures, c. 2, § 18. This statement clearly exhibits Wheaton’s opinion that the custom had been a general one, as well as that it ought to remain so. His assumption that it had been abolished by the differences between France and England at the close of the last century was hardly justified by the state of things when he wrote, and has not since been borne out. During the wars of the French Empire, as both French and English writers agree, the coast fisheries were left in peace. 2 Ortolan, 54; De Boeck, § 193 ; Hall, § 148. De Boeck quaintly and truly adds, “ and the incidents of 1800 and of 1801 had no morrow — rieurent pas de lendemainP In the war with Mexico in 1846, the United States recognized the exemption of coast fishing boats from capture. In proof of this, counsel have referred to records of the Navy Department, which this court is clearly authorized to consult upon such a question. Jones v. United States, 137 U.S. 202; Underhill v. Hernandez, 168 U. S. 250, 253. By those records it appears that Commodore Conner, commanding the Home Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter from the ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr. Bancroft, the Secretary of the Navy, enclosing a copy of the commodore’s “ instructions to the commanders of the vessels of the Home Squadron, showing the principles to be observed in the blockade of the Mexican ports,” one of which was that “ Mexican boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested; ” and that on June 10, 1846, those instructions were approved by the Navy Department, of which Mr. Bancroft was still the head, and continued to be until he was appointed Minister to THE PAQUETE HABANA. 697 Opinion of the Court. England in September following. Although Commodore Conner’s instructions and the Department’s approval thereof do not appear in any contemporary publication of the Government, they evidently became generally known at the time, or soon after; for it is stated in several treatises on international law (beginning with Ortolan’s second edition, published in 1853) that the United States in the Mexican War permitted the coast fishermen of the enemy to continue the free exercise of their industry. 2 Ortolan, (2d ed.) 49 note; (4th ed.) 55; 4 Calvo, (5th ed.) § 2372; De Boeck, § 194; Hall, (4th ed.) § 148. As qualifying the effect of those statements, the counsel for the United States relied on a proclamation of Commodore Stockton, commanding the Pacific Squadron, dated August 20, 1846, directing officers under his command to proceed immediately to blockade the ports of Mazatlan and San Blas on the west coast of Mexico, and saying to them, “ All neutral vessels that you may find there you will allow twenty days to depart; and you will make the blockade absolute against all vessels, except armed vessels of neutral nations. You will capture all vessels under the Mexican flag that you may be able to take.” Navy Report of 1846, pp. 673, 674. But there is nothing to show that Commodore Stockton intended, or that the Government approved, the capture of coast fishing vessels. On the contrary, General Halleck, in the preface to his work on International Law or Rules Regulating the Intercourse of States in Peace and War, published in 1861, says that he began that work, during the war between the United States and Mexico, “ while serving on the staff of the commander of the Pacific Squadron ” and “ often required to give opinions on questions of international law growing out of the operations of the war.” Had the practice of the blockading squadron on the west coast of Mexico during that war, in regard to fishing vessels, differed from that approved by the Navy Department on the east coast, General Halleck could hardly have failed to mention it, when stating the prevailing doctrine upon the subject as follows : 698 OCTOBER TERM, 1899. Opinion of the Court. “ Fishing boats have also, as a general rule, been exempted from the effects of hostilities. As early as 1521, while war was raging between Charles V and Francis, ambassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was about to commence, the subjects of both belligerents, engaged in this pursuit, should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800, the British and French governments issued formal instructions exempting the fishing boats of each other’s subjects from seizure. This order was subsequently rescinded by the British government, on the alleged ground that some French fishing boats were equipped as gunboats, and that some French fishermen, who had been prisoners in England, had violated their parole not to serve, and had gone to join the French fleet at Brest. Such excuses were evidently mere pretexts, and, after some angry discussions had taken place on the subject, the British restriction was withdrawn, and the freedom of fishing was ag-ain allowed on both sides. French writers consider this exemption as an established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers.” Halleck, (1st ed.) c. 20, § 23. That edition was the only one sent out under the author’s own auspices, except an abridgment, entitled Elements of International Law and the Law of War, which he published in 1866, as he said in the preface, to supply a suitable textbook for instruction upon the subject, “ not only in our colleges, but also in our two great national schools — the Military and Naval Academies.” In that abridgment, the statement as to fishing boats was condensed, as follows: “Fishing boats have also, as a general rule, been exempted from the effects of hostilities. French writers consider this exemption as an established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers.” Halleck’s Elements, c. 20, § 21. In the treaty of peace between the United States and Mex- THE PAQUETE HABANA. 699 Opinion of the Court. ico in 1848 were inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hostile molestation or seizure in time of war of the persons, occupations, houses or goods of fishermen. 9 Stat. 939, 940. Wharton’s Digest of the International Law of the United States, published by authority of Congress in 1886 and 1887, embodies General Halleck’s fuller statement, above quoted, and contains nothing else upon the subject. 3 Whart. Int. Law Dig. § 345, p. 315; 2 Halleck, (Eng. eds. 1873 and 1878) p. 151. France, in the Crimean War in 1854, and in her wars with Austria in 1859 and with Germany in 1870, by general orders, forbade her cruisers to trouble the coast fisheries, or to seize any vessel or boat engaged therein, unless naval or military operations should make it necessary. Calvo, § 2372; Hall, § 148; 2 Ortolan, (4th ed.) 449; 10 Revue de Droit International, (1878) 399. Calvo says that in the Crimean War, “notwithstanding her alliance with France and Italy, England did not follow the same line of conduct, and her cruisers in the Sea of Azof destroyed the fisheries, nets, fishing implements, provisions, boats, and even the cabins, of the inhabitants of the coast.” Calvo, § 2372. And a Russian writer on Prize Law remarks that those depredations, “ having brought ruin on poor fishermen and inoffensive traders, could not but leave a painful impression on the minds of the population, without impairing in the least the resources of the Russian government.” Katche-novsky, (Pratt’s ed.) 148. But the contemporaneous reports of the English naval officers put a different face on the matter, by stating that the destruction in question was part of a military measure, conducted with the cooperation of the French ships, and pursuant to instructions of the English admiral “ to clear the seaboard of all fish stores, all fisheries and mills, on a scale beyond the wants of the neighboring population, and indeed of all things destined to contribute to the maintenance of the enemy’s army in the Crimea; ” and that the property destroyed consisted of large fishing establishments and storehouses of the Russian government, numbers of heavy launches, and enormous quantities of nets and gear, salted fish, corn 700 OCTOBER TERM, 1899. Opinion of the Court. and other provisions, intended for the supply of the Russian army. United Service Journal of 1855, pt. 3, pp. 108-112. Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed in catching and bringing to market fresh fish, no instance has been found in which the exemption from capture of private coast fishing vessels, honestly pursuing their peaceful industry, has been denied by England, or by any other nation. And the Empire of Japan, (the last State admitted into the rank of civilized nations,) by an ordinance promulgated at the beginning of its war with China in August, 1894/ established prize courts, and ordained that “ the following enemy’s vessels are exempt from detention ” — including in the exemption “ boats engaged in coast fisheries,” as well as “ships engaged exclusively on a voyage of scientific discovery, philanthropy or religious mission.” Takahashi, International Law, 11, 178. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113, 163, 164, 214, 215. Wheaton places, among the principal sources of international law, “ Text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.” As to these he forcibly observes: “Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are gen- THE PAQUETE HABANA. 701 Opinion of the Court. erally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.” Wheaton’s International Law, (8th ed.) § 15. Chancellor Kent says: “ In the absence of higher and more-authoritative sanctions, the ordinances of foreign States, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law.” 1 Kent Com. 18. It will be convenient, in the first place, to refer to some leading French treatises on international law, which deal with the question now before us, not as one of the law of France only, but as one determined by the general consent of civilized nations. “ Enemy ships,” say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855, “ are good prize. Kot all, however ; for it results from the unanimous accord of the maritime powers that an exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy, so long as they devote themselves exclusively to fishing.” 1 Pistoye et Duverdy, tit. 6, c. 1, p. 314. De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations — Phases et Causes Celebres du Droit Naritime des Nations — published in 1856, affirms in the clearest language the exemption from capture of fishing boats, saying, in lib. 1, tit. 3, § 36, that “ in time of war the freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle, they are not subject either to capture or to confiscation ; ” and that in lib. 2, c. 20, he will state “several facts and several decisions 702 OCTOBER TERM, 1899. ‘ Opinion of the Court. which prove that the perfect freedom and neutrality of fishing boats are not illusory.” 1 De Cussy, p. 291. And in the chapter referred to, entitled De la Liberte et de la Neutrality Parfaite de la Peche, besides references to the edicts and decisions in France during the French Revolution, is this general statement: “ If one consulted only positive international law ” — Ie droit des gens positif— (by which is evidently meant international law expressed in treaties, decrees or other public acts, as distinguished from what may be implied from custom or usage,) “fishing boats would be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among all European nations frees them from it, and several official declarations have confirmed this privilege in favor of ‘ a class of men whose hard and ill rewarded labor, commonly performed by feeble and aged hands, is so foreign to the operations of war.’ ” 2 De Cussy, 164, 165. Ortolan, in the fourth edition of his Regies Internationales et Diplomatie de la Mer, published in 1864, after stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize, says: “Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these boats, as well as their crews, are free from capture and exempt from all hostilities. The coast fishing industry is, in truth, wholly pacific, and of much less importance, in regard to the national wealth that it may produce, than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who carry it on, among whom women are often seen, may be called the harvesters of the territorial seas, since they confine themselves to gathering in the products thereof; they are for the most part poor families who seek in this calling hardly more than the means of gaining their livelihood.” 2 Ortolan, 51. Again, after observing that there are very few solemn public treaties which make mention of the immunity of fishing boats in time of war, he says: “ From another point of view, the custom which sanctions this immunity is not so general that it can be considered as making an absolute international rule; but it has been so often put in practice, and, besides, it accords so well with the rule in use, in wars on THE PAQUETE HABANA. 703 Opinion of the Court. land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it will doubtless continue to be followed in maritime wars to come.” 2 Ortolan, 55. No international jurist of the present day has a wider or more deserved reputation than Calvo, who, though writing in French, is a citizen of the Argentine Republic, employed in its diplomatic service abroad. In the fifth edition of his great work on international law, published in 1896, he observes, in § 2366, that the international authority of decisions in particular cases by the prize courts of France, of England, and of the United States, is lessened by the fact that the principles on which they are based are largely derived from the internal legislation of each country ; and yet the peculiar character of maritime wars, with other considerations, gives to prize jurisprudence a force and importance reaching beyond the limits of the country in which it has prevailed. He therefore proposes here to group together a number of particular cases proper to serve as precedents for the solution of grave questions of maritime law in regard to the capture of private property as prize of war. Immediately, in § 2367, he goes on to say: “ Notwithstanding the hardships to which maritime wars subject private property, notwithstanding the extent of the recognized rights of belligerents, there are generally exempted, from seizure and capture, fishing vessels.” In the next section he adds: “ This exception is perfectly justiciable — Cette exception est parfaitement justiciable ” — that .is to say, belonging to judicial jurisdiction or cognizance. Littre, Diet. voc. Justiciable; Hans v. Louisiana^ 134 U. S. 1, 15. Calvo then quotes Ortolan’s description, above cited, of the nature of the coast fishing industry; and proceeds to refer, in detail, to some of the French precedents, to the acts of the French and English governments in the times of Louis XVI and of the French Revolution, to the position of the United States in the war with Mexico, and of France in later wars, and to the action of British cruisers in the Crimean War. And he concludes his discussion of the subject, in § 2373, by affirming the exemption of the coast fishery, and pointing out the distinction in this regard between the coast fishery and 704 OCTOBER TERM, 1899. ■ Opinion of the Court. what he calls the great fishery, for cod, whales or seals, as follows: “ The privilege of exemption from capture, which is generally acquired by fishing vessels plying their industry near the coasts, is not extended in any country to ships employed on the high sea in what is called the great fishery, such as that for the cod, for the whale or the sperm whale, or for the seal or sea calf. These ships are, in effect, considered as devoted to operations which are at once commercial and industrial — Ces natives sont en effet consider es comme adonnes a des operations a la fois commerciales et industriellesJ The distinction is generally recognized. 2 Ortolan, 54; De Boeck, § 196; Hall, § 148. See also The Susa, 2 0. Rob. 251; The Johan, Edw. Adm. 275, and appx. L. The modern German books on international law, cited by the counsel for the appellants, treat the custom, by which the vessels and implements of coast fishermen are exempt from seizure and capture, as well established by the practice of nations. Heffter, § 137; 2 Kaltenborn, § 237, p. 480; Blunt-schli, § 667; Perels, § 37, p. 217. De Boeck, in his work on Enemy Private Property under Enemy Flag— de la Propriety Privee Ennemie sous Pavilion Ennemi — published in 1882, and the only continental treatise cited by the counsel for the United States, says in § 191: “ A usage very ancient, if not universal, withdraws from the right of capture enemy vessels engaged in the coast fishery. The reason of this exception is evident; it would have been too hard to snatch from poor fishermen the means of earning their bread.” “ The exemption includes the boats, the fishing implements and the cargo of fish.” Again, in § 195: “It is to be observed that very few treaties sanction in due form this immunity of the coast fishery.” “ There is, then, only a custom. But what is its character ? Is it so fixed and general that it can be raised to the rank of a positive and formal rule of international law ? ” After discussing the statements of other writers, he approves the opinion of Ortolan (as expressed in the last sentence above quoted from his work) and says that, at bottom, it differs by a shade only from that formulated by Calvo and by some of the German jurists, and that “ it is more exact, THE PAQUETE HABANA. 705 Opinion of the Court. without ignoring the imperative character of the humane rule in question — eUe est plus exacte, sans meconnaitre le caractere imp^ratif de la regie d'humanity dont il s^agit.” And, in § 196, he defines the limits of the rule as follows: “ But the immunity of the coast fishery must be limited by the reasons that justify it. The reasons of humanity and of harmlessness — les raisons d}humanity et ddnnocuite — which militate in its favor do not exist in the great fishery, such as the cod fishery; ships engaged in that fishery devote themselves to truly commercial operations, which employ a large number of seamen. And these same reasons cease to be applicable to fishing vessels employed for a warlike purpose, to those which conceal arms, or which exchange signals of intelligence with ships of war; but only those taken in the fact can be rigorously treated; to allow seizure by way of prevention would open the door to every abuse, and would be equivalent to a suppression of the immunity.” Two recent English text-writers, cited at the bar, (influenced by what Lord Stowell said a century since,) hesitate to recognize that the exemption of coast fishing vessels from capture has now become a settled rule of international law. Yet they both admit that there is little real difference in the views, or in the practice, of England and of other maritime nations; and that no civilized nation at the present day would molest coast fishing vessels, so long as they were peaceably pursuing their calling, and there was no danger that they or their crews might be of military use to the enemy. Hall, in § 148 of the fourth edition of his Treatise on International Law, after briefly sketching the history of the positions occupied by France and England at different periods, and by the United States in the Mexican War, goes on to say: “In the foregoing facts there is nothing to show that much real difference has existed in the practice of the maritime countries. England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any State has accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting them as a general rule, and would cap-VOL. CLXXV—45 706 OCTOBER TERM, 1899. Opinion of the Court. ture them so soon as any danger arose that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant them a more distinct exemption.” So T. J. Lawrence, in § 206 of his Principles of International Law, says: “ The difference between the English and the French view is more apparent than real; for no civilized belligerent would now capture the boats of fishermen plying their avocation peaceably in the territorial waters of their own State; and no jurist would seriously argue that their immunity must be respected if they were used for warlike purposes, as were the smacks belonging to the northern ports of France when Great Britain gave the order to capture them in 1800.” But there are writers of various maritime countries, not yet cited, too important to be passed by without notice. Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval and in the colonial service of his country, in his Manual of International Law for the Use of Navies, Colonies and Consulates, published in 1882, writes: “An exception to the usage of capturing enemy’s private vessels at sea is the coast fishery.” “ This principle of immunity from capture of fishing boats is generally adopted by all maritime powers, and in actual warfare they are universally spared so long as they remain harmless.” 2 Ferguson, § 212. Ferdinand Attlmayr, Captain in the Austrian Navy, in his Manual for Naval Officers, published at Vienna in 1872 under the auspices of Admiral Tegetthoff, says: “ Regarding the capture of enemy property, an exception must be mentioned, which is a universal custom. Fishing vessels which belong to the adjacent coast, and whose business yields only a necessary livelihood, are, from considerations of humanity, universally excluded from capture.” 1 Attlmayr, 61. Ignacio de Negrin, First Official of the Spanish Board of Admiralty, in his Elementary Treatise on Maritime International Law, adopted by royal order as a text-book in the Naval Schools of Spain, and published at Madrid in 1873, concludes his chapter “Of the lawfulness of prizes” with these words: “It remains to be added that the custom of all civilized peoples excludes from capture, and from all kind of hostility, the THE PAQUETE HABANA. 707 Opinion of the Court. fishing vessels of the enemy’s coasts, considering this industry as absolutely inoffensive, and deserving, from its hardships and usefulness, of this favorable exception. It has been thus expressed in very many international conventions, so that it can be deemed an incontestable principle of law, at least among enlightened nations.” Negrin, tit. 3, c. 1, § 310. Carlos Testa, Captain in the Portuguese Navy and Professor in the Naval School at Lisbon, in his work on Public International Law, published in French at Paris in 1886, when discussing the general right of capturing enemy ships, says: “ Nevertheless, in this, customary law establishes an exception of immunity in favor of coast fishing vessels. Fishing is so peaceful an industry, and is generally carried on by so poor and so hardworking a class of men, that it is likened, in the territorial waters of the enemy’s country, to the class of husbandmen who gather the fruits of the earth for their livelihood. The examples and practice generally followed establish this humane and beneficent exception as an international rule, and this rule may be considered as adopted by customary law and by all civilized nations.” Testa, pt. 3, c. 2, in 18 Biblio-theque International et Diplomatique, pp. 152, 153. No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore, in the enlarged edition of his exhaustive work on Public International Law, published at Paris in 1885-6, saying: “ The vessels of fishermen have been generally declared exempt from confiscation, because of the eminently peaceful object of their humble industry, and of the principles of equity and humanity. The exemption includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This usage, eminently humane, goes back to very ancient times; and although the immunity of fishery along the coasts may not have been sanctioned by treaties, yet it is considered to-day as so definitely established, that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule of international law, and is generally respected by the nations. Consequently, we shall lay down the following rule : (a) Vessels belonging to citizens of the enemy State, and devoted to fish- 708 OCTOBER TERM, 1899. Opinion of the Court. ing along the coasts, cannot be subject to capture. (J) Such vessels, however, will lose all right of exemption, when employed for a warlike purpose, (c) There may, nevertheless be subjected to capture vessels devoted to the great fishery in the ocean, such as those employed in the whale fishery, or in that for seals or sea calves.” 3 Fiore, § 1421. This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce. This rule of international law is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter. Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Calvo, § 2368. Nor are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous one, should be recognized and declared by a prize court. THE PAQUETE HABANA. 709 Opinion of the Court. By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential. 1 Kent Com. 91, note; Halleck, c. 20, § 22; Calvo, §2376; Hall, § 138. In 1813, while the United States were at war with England, an American vessel, on her voyage from Italy to the United States, was captured by an English ship, and brought into Halifax in Nova Scotia, and, with her cargo, condemned as lawful prize by the Court of Vice Admiralty there. But a petition for the restitution of a case of paintings and engravings, which had been presented to and were owned by the Academy, of Arts in Philadelphia, was granted by Dr. Croke, the judge of that court, who said: “ The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted, amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and protection. They are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species.” And he added that there had been “ innumerable cases of the mutual exercise of this courtesy between nations in former wars.” The Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482. In 1861, during the War of the Rebellion, a similar decision was made, in the District Court of the United States for the Eastern District of Pennsylvania, in regard to two cases of books belonging and consigned to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the custody of the marshal, and restored to the agent of the university, said: “ Though this claimant, as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different 710 OCTOBER TERM, 1899. Opinion of the Court. character. The United States, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to confiscate property captured at sea, of which the proceeds would otherwise increase the wealth of that district. But the United States are not at war with literature in that part of their territory.” He then referred to the decision in Nova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the decree which he was about to pronounce; and he added that, without any such precedents, he should have had no difficulty in liberating these books. The Amelia, 4 Philadelphia, 417. In Brown v. TJnited States, 8 Cranch, 110, there are expressions of Chief Justice Marshall which, taken by themselves, might seem inconsistent with the position above maintained of the duty of a prize court to take judicial notice of a rule of international law, established by the general usage of civilized nations, as to the kind of property subject to capture. But the actual decision in that case, and the leading reasons on which it was based, appear to us rather to confirm our position. The principal question there was whether personal property of a British subject, found on land in the United States at the beginning of the last war with Great Britain, could lawfully be condemned as enemy’s property, on a libel filed by the attorney of the United States, without a positive act of Congress. The conclusion of the court was “ that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war.” 8 Cranch, 129. In showing that the declaration of war did not, of itself, vest the executive with authority to order such property to be confiscated, the Chief Justice relied on the modern usages of nations, saying: “ The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation;” and again: “The modern rule then would seem to be that tangible property THE PAQUETE HABANA. 711 Opinion of the Court. belonging to an enemy, and found in the country at the commencement of war, ought not to be immediately confiscated ; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property.” 8 Cranch, 123, 125. The decision that enemy property on land, which by the modern usage of nations is not subject to capture as prize of war, cannot be condemned by a prize'court, even by direction of the executive, without express authority from Congress, appears to us to repel any inference that coast fishing vessels, which are exempt by the general consent of civilized nations from capture, and which no act of Congress or order of the President has expressly authorized to be taken and confiscated, must be condemned by a prize court, for want of a distinct exemption in a treaty or other public act of the Government. To this subject, in more than one aspect, are singularly applicable the words uttered by Mr. Justice Strong, speaking for this court: “Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinances of maritime States, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single State, which were at first of limited effect, but which, when generally accepted, became of universal obligation.” “This is not giving to the statutes of any nation extra-territorial effect. It is not treating them as general maritime laws; but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact, we think, we may take judicial notice. Foreign municipal laws 712 OCTOBER TERM, 1899. Opinion of the Court. must indeed be proved as facts, but it is not so with the law of nations.” The Scotia, 14 Wall. 170, 187, 188. The position taken by the United States during the recent war with Spain was quite in accord with the rule of international law, now generally recognized by civilized nations, in regard to coast fishing vessels. On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson, commanding the North Atlantic Squadron, to “ immediately institute a blockade of the north coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west.” Bureau of Navigation Report of 1898, appx. 175. The blockade was immediately instituted accordingly. On April 22, the President issued a proclamation, declaring that the United States had instituted and would maintain that blockade, “in pursuance of the laws of the United States, and the law of nations applicable to such cases.” 30 Stat. 1769. And by the act of Congress of April 25, 1898, c. 189, it was declared that the war between the United States and Spain existed on that day, and had existed since and including April 21. 30 Stat. 364. On April 26,1898, the President issued another proclamation, which, after reciting the existence of the war, as declared by Congress, contained this further recital: “ It being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice.” This recital was followed by specific declarations of certain rules for the conduct of the war by sea, making no mention of fishing vessels. 30 Stat. 1770. But the proclamation clearly manifests the general policy of the Government to conduct the war in accordance with the principles of international law sanctioned by the recent practice of nations. On April 28, 1898, (after the capture of the two fishing vessels now in question,) Admiral Sampson telegraphed to the Secretary of the Navy as follows: “ I find that a large number of fishing schooners are attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. They are generally manned by excellent seamen, belonging THE PAQUETE HABANA. Opinion of the Court. 713 to the maritime inscription of Spain, who have already served in the Spanish navy, and who are liable to further service. As these trained men are naval reserves, have a semi-military character, and would be most valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that they should be detained prisoners of war, and that I shpuld be authorized to deliver them to the commanding officer of the army at Key West.” To that communication the Secretary of the Navy, on April 30, 1898, guardedly answered: “ Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be detained.” Bureau of Navigation Report of 1898, appx. 178. The Admiral’s despatch assumed that he was not authorized, without express order, to arrest coast fishermen peaceably pursuing their calling; and the necessary implication and evident intent of the response of the Navy Department were that Spanish coast fishing vessels and their crews should not be interfered with, so long as they neither attempted to violate the blockade, nor were considered likely to aid the enemy. The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden, sailing under the Spanish flag, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba. Her crew consisted of but three men, including the master; and, according to a common usage in coast fisheries, had no interest in the vessel, but were entitled to two thirds of her catch, the other third belonging to her Spanish owner, who, as well as the crew, resided in Havana. On her last voyage, she sailed from Havana along the coast of Cuba, about two hundred miles, and fished for twenty-five days off the cape at the west end of the island, within the territorial waters of Spain; and was going back to Havana, with her cargo of live fish, when she was captured by one of the blockading squadron, on April 25,1898. She had no arms or ammunition on board ; she had no knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel; she made no attempt to run the blockade, and no resistance at the time of the capture; nor was there any evi- 714 OCTOBER TERM, 1899. Opinion of the Court. dence whatever of likelihood that she or her crew would aid the enemy. In the case of the Lola, the only differences in the facts were that she was a schooner of 35 tons burden, and had a crew of six men, including the master; that after leaving Havana, and proceeding some two hundred miles along the coast of Cuba, she went on, about a hundred miles farther, to the coast of Yucatan, and there fished for eight days; and that, on her return, when near Bahia Honda, on the coast of Cuba, she was captured, with her cargo of live fish, on April 27, 1898. These differences afford no ground for distinguishing the two cases. Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return for their toil and enterprise, two thirds of her catch, the other third going to her owner by way of compensation for her use. Each vessel went out from Havana to her fishing ground, and was captured when returning along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the vessels extended her fishing trip across the Yucatan Channel and fished on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the rule of international law. The two vessels and their cargoes were condemned by the District Court as prize of war; the vessels were sold under its decrees; and it does not appear what became of the fresh fish of which their cargoes consisted. Upon the facts proved in either case, it is the duty of this court, sitting as the highest prize court of the United States, and administering the law of nations, to declare and adjudge that the capture was unlawful, and without probable cause; and it is therefore, in each case, Ordered, that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs. THE PAQUETE HABANA. 715 Dissenting Opinion: Fuller, C. J., Harlan, McKenna, JJ. Mb. Chief Justice Fuller, with whom concurred Me. Justice Haelan and Me. Justice McKenna, dissenting. The District Court held these vessels and their cargoes liable because not “ satisfied that as a matter of law, without any ordinance, treaty or proclamation, fishing vessels of this class are exempt from seizure.” This court holds otherwise, not because such exemption is to be found in any treaty, legislation, proclamation or instruction, granting it, but on the ground that the vessels were exempt by reason of an established rule of international law applicable to them, which it is the duty of the court to enforce. I am unable to conclude that there is any such established international rule, or that this court can properly revise action which must be treated as having been taken in the ordinary exercise of discretion in the conduct of war. It cannot be maintained “ that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power.” That position was disallowed in Brown v. The United States, 8 Cranch, 110, 128, and Chief Justice Marshall said : “ This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. The rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary.” The question in that case related to the confiscation of the property of the enemy on land within our own territory, and it was held that property so situated could not be confiscated without an act of Congress. The Chief Justice continued: “Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy property in our country, is a 716 OCTOBER TERM, 1800. Dissenting Opinion: Fuller, C.J., Harlan, McKenna, JJ. question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary.” This case involves the capture of enemy’s property on the sea, and executive action, and if the position that the alleged rule proprio vigore limits the sovereign power in war be rejected, then I understand the contention to be that, by reason of the existence of the rule, the proclamation of April 26 must be read as if it contained the exemption in terms, or the exemption must be allowed because the capture of fishing vessels of this class was not specifically authorized. The preamble to the proclamation stated, it is true, that it was desirable that the war “ should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice,” but the reference was to the intention of the Government “ not to resort to privateering, but to adhere to the rules of the Declaration of Paris; ” and the proclamation spoke for itself. The language of the preamble did not carry the exemption in terms, and the real question is whether it must be allowed because not affirmatively withheld, or, in other words, because such captures were not in terms directed. These records show that the Spanish sloop Paquete Sabana “ was captured as a prize of war by the U. S. S. Castine ” on April 25, and “ was delivered ” by the Castine’s commander “ to Rear Admiral Wm. T. Sampson, (commanding the North Atlantic Squadron,)” and thereupon “ turned over ” to a prize master with instructions to proceed to Key West. And that the Spanish schooner Lola “ was captured as a prize of war by the U. S. S. Dolphin,” April 27, and “ was delivered ” by the Dolphin’s commander “ to Rear Admiral Wm. T. Sampson, (commanding the North Atlantic Squadron,)” and thereupon “ turned over ” to a prize master with instructions to proceed to Key West. THE PAQUETE HABANA. 717 Dissenting Opinion: Fuller, C.J., Harlan, McKenna, JJ. That the vessels were accordingly taken to Key West and there libelled, and that the decrees of condemnation were entered against them May 30. It is impossible to concede that the Admiral ratified these captures in disregard of established international law and the proclamation, or that the President, if he had been of opinion that there was any infraction of law or proclamation, would not have intervened prior to condemnation. The correspondence of April 28, 30, between the Admiral and the Secretary of the Navy, quoted from in the principal opinion, was entirely consistent with the validity of the captures. The question put by the Admiral related to the detention as prisoners of war of the persons manning the fishing schooners “ attempting to get into Havana.” Non-combatants are not so detained except for special reasons. Sailors on board enemy’s trading vessels are made prisoners because of their fitness for immediate use on ships of war. Therefore the Admiral pointed out the value of these fishing seamen to the enemy, and advised their detention. The Secretary replied that if the vessels referred to were “ attempting to violate blockade ” they were subject “ with crew ” to capture, and also that they might be detained if “ considered likely to aid enemy.” The point was whether these crews should be made prisoners of war. Of course they would be liable to be if involved in the guilt of blockade running, and the Secretary agreed that they might be on the other ground in the Admiral’s discretion. All this was in accordance with the rules and usages of international law, with which, whether in peace or war, the naval service has always been necessarily familiar. I come then to examine the proposition “ that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels, with their implements and supplies, 718 OCTOBER TERM, 1899. Dissenting Qpinion: Fuller, C. J., Harlan, McKenna, JJ. cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in of fresh fish, are exempt from capture as prize of war.” This, it is said, is a rule “ which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of treaty or other public act of their own government.” At the same time it is admitted that the alleged exemption does not apply “ to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way; ” and further that the exemption has not “ been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.” It will be perceived that the exceptions reduce the supposed rule to very narrow limits, requiring a careful examination of the facts in order to ascertain its applicability; and the decision appears to me to go altogether too far in respect of dealing with captures directed or ratified by the officer in command. But were these two vessels within the alleged exemption? They were of twenty-five and thirty-five tons burden respectively. They carried large tanks, in which the fish taken were kept alive. They were owned by citizens of Havana, and the owners and the masters and crew were to be compensated by shares of the catch. One of them had been two hundred miles from Havana, off Cape San Antonio, for twenty-five days, and the other for eight days off the coast of Yucatan. They belonged, in short, to the class of fishing or coasting vessels of from five to twenty tons burden, and from twenty tons upwards, which, when licensed or enrolled as prescribed by the Revised Statutes, are declared to be vessels of the United States, and the shares of whose men, when the vessels are employed in fishing, are regulated by statute. They were engaged in what were substantially commercial ventures, and the mere fact that the fish were kept alive by contrivances THE PAQUETE HABANA. 719 Dissenting Opinion: Fuller, C.J., Harlan, McKenna, JJ. for that purpose — a practice of considerable antiquity — did not render them any the less an article of trade than if they had been brought in cured. I do not think that, under the circumstances, the considerations which have operated to mitigate the evils of war in respect of individual harvesters of the soil can properly be invoked on behalf of these hired vessels, as being the implements of like harvesters of the sea. Not only so as to the owners but as to the masters and crews. The principle which exempts the husbandman and his instruments of labor, exempts the industry in which he is engaged, and is not applicable in protection of the continuance of transactions of such character and extent as these. In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right, and it is extended or denied as the exigency is believed to demand. It is, said Sir William Scott, “a rule of comity only, and not of legal decision.” The modern view is thus expressed by Mr. Hall: “ England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any State has accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting them as a general rule, and would capture them so soon as any danger arose that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant them a more distinct exemption.” In the Crimean War, 1854-5, none of the orders in council, in terms, either exempted or included fishing vessels, yet the allied squadrons swept the Sea of Azof of all craft capable of furnishing the means of transportation, and the English admiral in the Gulf of Finland directed the destruction of all Russian coasting vessels, not of sufficient value to be detained as prizes, except “ boats or small craft which may be found empty at anchor, and not trafficking.” It is difficult to conceive of a law of the sea of universal obligation to which Great Britain has not acceded. And I 720 OCTOBER TERM, 1899. Dissenting Opinion: Fuller, C.J., Harlan, McKenna, JJ. am not aware of adequate foundation for imputing to this country the adoption of any other than the English rule. In his Lectures on International Law at the Naval Law College the late Dr. Freeman Snow laid it down that the exemption could not be asserted as a rule of international law. These lectures were edited by Commodore Stockton and published under the direction of the Secretary of the Navy in 1895, and, by that department, in a' second edition, in 1898, so that in addition to the well-known merits of their author they possess the weight to be attributed to the official imprimatur. Neither our treaties nor settled practice are opposed to that conclusion. In view of the circumstances surrounding the breaking out of the Mexican War, Commodore Conner, commanding the Home Squadron, on May 14, 1846, directed his officers, in respect of blockade, not to molest “Mexican boats engaged exclusively in fishing on any part of the coast,” presumably small boats in proximity to the shore; while on the Pacific coast Commodore Stockton in the succeeding August ordered the capture of “ all vessels under the Mexican flag.” The treaties with Prussia of 1785, 1799 and 1828, and of 1848 with Mexico, in exempting fishermen, “unarmed and inhabiting unfortified towns, villages or places,” did not exempt fishing vessels from seizure as prize; and these captures evidence the convictions entertained and acted on in the late war with Spain. It is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo and others are to the contrary. Their lucubrations may be persuasive, but are not authoritative. In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended. THE PAQUETE HABANA. 721 Modification of Decree. Exemptions may be designated in advance, or granted according to circumstances, but carrying on war involves the infliction of the hardships of war at least to the extent that the seizure or destruction of enemy’s property on sea need not be specifically authorized in order to be accomplished. Being of opinion that these vessels were not exempt as matter of law, I am constrained to dissent from the opinion and judgment of the court; and my brothers Harlan and McKenna concur in this dissent. On January 29, 1900, the court, in each case, on motion of the Solicitor General in behalf of the United States, and after argument of counsel thereon, and to secure the carrying out of the opinion and decree according to their true meaning and intent, ordered that the decree be so modified as to direct that the damages to be allowed shall be compensatory only, and not punitive. VOL. CLXXV—46 OCTOBER TERM, 1899. 723 Decisions announced without Opinions. DECISIONS ANNOUNCED WITHOUT OPINIONS DURING THE TIME COVERED BY THIS VOLUME. No. 78. Missouri, Kansas & Texas Railway Company of Texas v. Evans. Error to the United States Circuit Court of Appeals for the Fifth Circuit. Argued October 27, 1899. Decided November 6, 1899. Per Curiam. Dismissed, with costs, on the authority of Mason v. United States, 136 U. S. 581; Hardee v. Wilson, 146 U. S. 179; Sipperley v. Smith, 155 U. S. 86. Mr. James Hagerman and Mr. Joseph M. Bryson for the plaintiff in error. Mr. Bush Taggart and Mr. H. Chilton for the defendant in error. No. 18. Fordyce et al., Receivers, v. Trigg. Error to the Supreme Court of the State of Arkansas. Submitted October 10,1899. Decided December 11,1899. Per Curiam. Dismissed with costs on the authority of Hardee v. Wilson, 146 U. S. 179, and cases cited. Mr. Samuel H. West for the plaintiffs in error. Mr. Oscar D. Scott for the defendant in error. No. 351. Clifford v. Ruempler, Sheriff. Appeal from the Circuit Court of the United States for the District of New Jersey. Submitted December 18, 1899. Decided December 22, 1899. Per Curiam. Order affirmed with costs on the authority of Brown v. New Jersey, 175 U. S. 172 ; Clifford n. Heller, 172 U. S. 641. Mr. John P. Stockton for the appellant. Mr. James S. Erwi/n for the appellee. Decisions on Petitions for Writs of Certiorari. No. 287. Flippin v. Kimball et al., Receivers. Fourth Circuit. Denied October 16, 1899. Mr. Edgar Allen, Mr. Robert Stiles and Mr. A. L. Holladay for petitioner. Mr. R. M. Hughes and Mr. Joseph I. Doran opposing. 724 OCTOBER TERM, 1899. Decisions announced without Opinions. No. 326. Leland v. National Cash Register Company. First Circuit. Denied October 16, 1899. Mr. Frederick P. Fish for petitioners. Mr. Lysander Hill opposing. No. 386. Bolles & Co. v. County of Perry. Seventh Circuit. Denied October 16, 1899. Mr. George A. Sanders for petitioners. Mr. S. P. Wheeler opposing. No. 415. L. Bucki & Son Lumber Company v. Atlantic Lumber Company. Fifth Circuit. Denied October 16, 1899. Mr. H. Bisbee and Mr. J. E. Padgett for petitioner. Mr. R. H. Liggett opposing. No. 417. Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Narramore. Sixth Circuit. Denied October 16, 1899. Mr. Judson Harmon for petitioner. Mr. Charles M. Cist opposing. No. 394. Pacific Coast Steamship Company v. Bancroft-Whitney Company. Ninth Circuit. Granted October 16, 1899. Mr. Thomas B. Reed and Mr. George W. Towle, Jr., for petitioner. No. 270. Appleton Water Works Company v. Central Trust Company of New York. Seventh Circuit. Denied October 23, 1899. Mr. Lyman E. Barnes, Mr. Elmer P. Howe, Mr. Wm. A. Sargent and Mr. Geo. H. Yeaman for petitioners. Mr. B. K. Miller, Jr., opposing. No. 297. Bryan, as Marshal, v. Bernheimer. Fifth Circuit. Granted October 23,1899. Mr. J. D. Rouse, Mr. Wm. Grant and Mr. J. H. Ralston for petitioner. Mr. Thomas H. H. Clark opposing. OCTOBER TERM, 1899. Decisions announced without Opinions. 725 No. 410. Hobbs v. Beach. First Circuit. Granted October 23, 1899. Mr. Samuel T. Fisher for petitioners. Mr. John Dane Jr., opposing. No. 409. Holly v. Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States. Second Circuit. Granted October 23, 1899. Mr. M. K Simpson, Mr. Cephas Brainerd and Mr. John G. Johnson for petitioner. Mr. Julian T. Davies opposing. No. 375. Angus v. Irvine. Ninth Circuit. Denied October 23, 1899. Mr. William M. Pierson and Mr. Garrett W. McEnerney for petitioners. No. 421. Fidelity Trust and Safety Vault Company of Louisville v. Lawrence . County, Tennessee. Sixth Circuit. Denied October 23, 1899. Mr. J. M- Dickinson for petitioner. Mr. Edward H. East opposing. Nos. 423, 424, and 425. Minch, Zorn and Hines v. Steam Tug Victoria. Second Circuit. Denied October 23, 1899. Mr. Robert D. Benedict for petitioners. Mr. James J. Macklin opposing. ____________ No. 420. Fayerweather v. Trustees of Amherst College. Second Circuit. Denied October 30,1899. Mr. Roger M. Sherman and Mr. William Blakie for petitioners. Mr. James L. Bishop, Mr. John E. Parsons and Mr. C. N. Bovee, Jr., opposing. _____________ No. 331. Singer Manufacturing Company v. Cramer. Ninth Circuit. Denied October 30, 1899. Mr. 0. K. Offield, Mr. C. C. Linthicum and Mr. M. A. Wheaton for petitioner. Mr. John H. Miller opposing. 726 OCTOBER TERM, 1899. Decisions announced without Opinions. No. 403. Patrick v. Underwood. Eighth Circuit. Denied October 30, 1899. Mr. Charles J. Greene and Mr. Ralph W. Breckinridge for petitioner. Mr. Charles H. Toll and Mr. D. V. Burns opposing. No. 407. Chandler v. Pomeroy. Third Circuit.. Denied October 30, 1899. Mr. C. C. Bonney for petitioner. Mr. John G. Johnson and Mr. George Baldwin Newell opposing. No. 413. Knights Templars and Masons’ Life Indemnity Company v. Converse. Seventh Circuit. Denied October 30, 1899. Mr. Charles H. Aldrich for petitioner. Mr. John 8. Cooper opposing. No. 414. Bleecker v. Steamship Kensington. Second Circuit. Granted October 30, 1899. Mr. Roger Foster for petitioners. Mr. Henry Galbraith Ward opposing. No. 430. Huguley Manufacturing Company v. Galeton Cotton Mills. Fifth Circuit. Denied October 30, 1899. Mr. E. H. Farrar, Mr. B. F. Jonas, Mr. E. B. Eruttschnitt and Mr. John M. Chilton for petitioners. No. 431. Bacon v. United States. Eighth Circuit. Denied November 6, 1899. Mr. George Sutherland, Mr. Jacob R. Custer and Mr. Lester 0. Goddard for petitioner. No. 334. Mills, Receiver, v. City of Helena. Ninth Circuit. Denied November 6, 1899. Mr. John B. Clayberg and Mr. T. H. Carrier for petitioner. No. 433. Central Thompson-Houston Company v. Kentucky and Indiana Bridge Company. Sixth Circuit. Denied OCTOBER TERM, 1899. Decisions announced without Opinions. 727 November 6, 1899. Mr. James P. Helm and Mr. Helm Bruce for petitioner. Mr. Alexander Pope Humphrey and Mr. George M. Davie opposing. No. 389. Eastern Oregon Land Company v. Cole. Ninth Circuit. Denied November 13, 1899. Mr. James K. Kelly for petitioner. No. 346. Monongahela Coal Company v. Fidelity and Deposit Company of Maryland. Fifth Circuit. Denied November 13, 1899. Mr. TE S. Benedict for petitioner. No. 427. Carnegie Steel Company (Limited) v. Cambria Iron Company. Third Circuit. Granted November 20, 1899. Mr. Thomas B. Reed and Mr. Philander C. Knox for petitioner. Mr. Francis T. Chambers, Mr. James 1. Kay and Mr. Philip T. Dodge opposing. No. 405. Briscoe v. Minah Consolidated Mining Company (Limited). Ninth Circuit. Denied November 20, 1899. Mr. IF. F. Sanders for petitioners. Mr. R. C. Garland and Mr. Wm. IF. Wright, Jr., opposing. No. 441. Horton v. United States. Court of Appeals of the District of Columbia. Denied November 20, 1899. Mr. Tracy L. Jeffords and Mr. Robert W. Wells for petitioner. Mr. Attorney General, Mr. Solicitor General and Mr. A. M. Gould opposing. No. 447. Wilkins v. United States. Court of Appeals of the District of Columbia. Denied November 20, 1899. Mr. J. M. Wilson, Mr. H. E. Davis and Mr. A. A. Hoehling, Jr., for petitioner. Mr. Attorney General and Mr. Solicitor General opposing. 728 OCTOBER TERM, 1899. Decisions announced without Opinions. No. 448. Butlee v. United States. Court of Appeals of the District of Columbia. Denied November 20, 1899. Mr. J. M. Wilson, Mr. H. E. Davis and Mr. A. A. Tloehling, Jr., for petitioner. Mr. Attorney General and Mr. Solicitor General opposing. No. 446. Pope v. Hoopes, Executeix. Third Circuit. Denied December 4, 1899. Mr. V. B. Archer for petitioners. Mr. D. J. Pancoast opposing. No. 436. United States Rubbee Company v. Ameeican Oak Leathee Company. Seventh Circuit. Granted December 11, 1899. Mr. Henry S. Bobbins, Mr. Edward S. Isham and Mr. George A. Follansbee for petitioners. Mr. Jacob Newman, Mr. Frederick A. Smith and Mr. G. W. Northrup, Jr., opposing. No. 465. Boaed of County Commissionees of the County of Oueay v. Geee. Eighth Circuit. Denied December 11, 1899. Mr. Thomas C. Brown and Mr. Lyman 1. Henry for petitioner. Mr. Albert E. Pattison opposing. No. 460. Beitish-Ameeican Assueance Company of To-eonto, Canada, v. McEleoy. Ninth Circuit. Denied December 22, 1899. Mr. James B. Howe and Mr. T. C. Van Ness for petitioner. Mr. Henry P. Blair and Mr. Harold Preston opposing. ______________ No. 473. Hain v. Weltus. Fifth Circuit. Denied December 22, 1899. Mr. Harrington Putnam for petitioner. Mr. Wilhelmus Mynderse opposing. INDEX. ADMIRALTY. 1. In 1891, the navigation of steamers upon the Great Lakes and their connecting waters was governed by the Congressional Rules and Regulations of April 29, 1864, Rev. Stat. § 4233, and, so far as the manoeuvres of the vessels took place in American waters, by the Supervising Inspectors’ rules in force at that time. The New York, 187. 2. The Revised International Regulations of 1885 apply only to vessels navigating the high seas and coast waters of the United States, and not to those navigating the Great Lakes. Ib. 3. A court of admiralty may properly take judicial notice of an act of the parliament of Canada regulating the navigation of Canadian waters, passed in 1886, as a law of the sea and of general application. Ib. 4. Where a Canadian statute was introduced and treated as evidence by consent of counsel upon a motion for a rehearing in the District Court, though it did not appear of record, and, in obedience to a writ of certiorari from the Court of Appeals, was certified up to the Court of Appeals by the clerk of the District Court as a true copy of the original act as published, it was held that the Court of Appeals should have treated the act as properly before it, notwithstanding the clerk did not certify it to be a part of the record. Ib. 5. The steamer Conemaugh, while descending the Detroit River at night, discovered in her path a long tow, which was rounding to on the American side and was temporarily taking up three fourths of the navigable channel, and starboarded in order to pass between the rear barges and the Canadian channel bank. While proceeding under her starboard wheel, she made the lights of the propeller New York ascending the river. She blew her three signals of two whistles each, to neither of which the New York responded. On discovering the rear barges of the tow, she ported to follow them down the river, and upon discovering the New York in dangerous proximity, put her helm hard-a-starboard and her engines at full speed. The New York was at the same time coming up under a port wheel, and struck the Conemaugh on the starboard side and sank her. Held, that the Conemaugh was in fault (1) for not stopping when the New York failed to answer her 729 730 INDEX. signals; (2) for porting and then starboarding in order to cross the bow of the New York. Ib. 6. The New York, while ascending the river, made the lights of the tow, exchanged signals of one whistle with the propeller in charge of it, and ported her wheel to pass between the rear barges and the Canadian channel bank. She heard no signals and did not make out the colored lights of the Conemaugh. As she passed the rear barges she starboarded to resume her course, and struck the Conemaugh as above stated. Held: That she was in fault (1) for an inefficient lookout; (2) for failing to answer the repeated signals of the Conemaugh; and (3) for failure to stop after she made the white light of the Conemaugh, until her course and movements had been satisfactorily ascertained. Ib. 7. The fact that the officers of a steamer fail to see the signal lights of an approaching steamer, which are seen by other witnesses in the neighborhood, or to hear the whistles of such steamer which were plainly audible to others, is, unexplained, conclusive evidence of a defective lookout. Ib. 8. It is the duty of a steamer receiving signal whistles from an approaching steamer to answer them promptly; but it is also the duty of such approaching steamer, on the failure of the other to answer, to stop until her silence is explained and her course ascertained with certainty. Ib. 9. Where the owners of a cargo of a steamer, which has been sunk by collision occasioned by the mutual fault of two colliding steamers, intervene for their interest in a suit instituted by the owners of the carrying vessel against the other, they are entitled to recover full damages against such other vessel, notwithstanding the damages to such vessels are divided as between themselves. Ib. 10. On the 20th of April, 1898, a joint resolution of Congress was approved by the President declaring that the people of Cuba are, and of right ought to be, free and independent. On the same day the Minister of Spain at Washington demanded his passport, and the diplomatic relations of Spain with the United States were terminated. On the 22d of the same April a blockade of a part of the coast of Cuba was instituted. On the 23d of the same month, in a proclamation of the Queen Regent of Spain it was declared that a state of war was existing between Spain and the United States. On the 26th of the same month the President issued a proclamation, declaring that a state of war existed between the United States and Spain, the fourth and fifth articles of which proclamation were as follows: “ 4. Spanish merchant vessels in any ports or places within the United States shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were INDEX. 731 taken on board before the expiration of the above term; Provided, that nothing herein contained shall apply to the Spanish vessels having on board any officers in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government. 5. Any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place and to discharge her cargo, and afterwards forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to , continue her voyage to any port not blockaded.” The Pedro was built in England, sailed under the British flag till 1887, and then was transferred to a Spanish corporation, and sailed under the Spanish flag. Sailing from Antwerp she arrived at Havana with a cargo April 17,1899. She remained there five days, discharged her cargo and left for Santiago April 22. At 6 o’clock on that evening, when about 15 miles east of the Morro, and 5 miles north of the Cuban coast, she was captured by the New York, of the blockading fleet, sent to Key West, and there libelled and condemned. Held, (1) That the language of the proclamation was plain, and not open to interpretation; (2) that the Pedro, not being “ in any port or place within the United States,” but, on the contrary, being in Havana, a port of the enemy, did not come within the fourth article of the proclamation; (3) that it did not come within the fifth article, nor within the reasons usually assigned for exemption; (4) that it must be assumed that she was advised of the strained relations between the United States and Spain; (5) . that being owned by a Spanish corporation, having a Spanish registry, and sailing under a Spanish flag and a Spanish license, and being officered and manned by Spaniards, she must be deemed to be a Spanish ship, although she was insured against risks of war by British underwriters — that fact being immaterial. The Pedro, 354. 11. This was an appeal from a decree condemning the Guido as a prize of war. On the facts, concisely stated in the opinion of the court, it is held, following The Pedro, ante, 354, that the case was properly disposed of below. The Guido, 382. 12. In the fourth clause of the President’s proclamation of April 26, 1898, issued after the declaration of war against Spain by Congress, April 25, 1898, it was said : “ 4. Spanish merchant vessels in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places, and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in 732 INDEX. the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government.” The Buena Ventura, a Spanish vessel, being at Cuba in March, 1898, was chartered to proceed with all convenient speed to Ship Island, Mississippi, and there to take on board a cargo of lumber for Rotterdam. Under this charter she arrived at Ship Island in the latter part of March, 1898, and took on a cargo of lumber for Rotterdam. She cleared at the custom house on the 14th of April for Rotterdam, but was detained by low water until April 19, when, between 8 and 9 a.m., she proceeded on her voyage. While so proceeding she was captured by a man-of-war of the United States about ten miles off the Florida coast. Up to the moment of capture all her officers were ignorant of the existence of a state of war, and the vessel, at the time of her capture, was following the ordinary course of her voyage. After hearing in the District Court of the United States the Buena Ventura was condemned and sold under a decree of court, and the proceeds were deposited to abide the event of an appeal from that decree. Held: (1) That an innocent vessel like the Buena Ventura, which had loaded within a port of the United States, and had sailed therefrom before the commencement of the war, was entitled, under the proclamation, to continue its voyage, that being clearly within the intention of the President, under the liberal construction which this court is bound to give to that document; (2) that the reversal of the judgment below, condemning the Buena Ventura, should be without costs or damages in her favor; (3) that the moneys arising from the sale of the vessel must be paid to the claimant, deducting only the expenses properly incident to her custody and preservation up to the time of sale. The Buena Ventura, 384. 13. At the breaking out of the recent war with Spain, two fishing smacks — the one a sloop, 43 feet long on the keel and of 25 tons burden, and with a crew of three men, and the other a schooner 51 feet long on the keel and of 35 tons burden, and with a crew of six men — were regularly engaged in fishing on the coast of Cuba, sailing under the Spanish flag, and each owned by a Spanish subject, residing in Havana; her crew, who also resided there, had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner; and her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Each vessel left Havana on a coast fishing voyage, and sailed along the coast of Cuba about two hundred miles to the west end of the island; the sloop there fished for twenty-five days in the territorial waters of Spain ; and the schooner extended her fishing trip a hundred miles farther across the Yucatan Channel, and fished for eight days on the coast of Yucatan. On her return, with her cargo of live fish, along the coast of Cuba, and when INDEX. 733 near Havana, each was captured by one of the United States blockading squadron. Neither fishing vessel had any arms or ammunition on board; had any knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel; made any attempt to run the blockade, or any resistance at the time of her capture; nor was there any evidence that she or her crew was likely to aid the enemy. Held, that both captures were unlawful, and without probable cause. The Paquete Habana, 677. See International Law. ATTACHMENT. See Insolvent Laws of States. BANKRUPTCY. The decision in McLish v. Roff, 141 U. S. 651, that appeals or writs of error in cases in which the jurisdiction of the court was in issue, can be taken directly to this court only after final judgment, and the decision in United States v. Rider, 163 U. S. 132, that review by appeal, writ of error and otherwise, must be as prescribed by the judiciary act of March 3, 1891, c. 517, and that the use of a certificate was limited by it to a certificate by the courts below, after final judgment, of questions made as to their own jurisdiction, and to the certificate by the Circuit Court of Appeals of questions of law, in relation to which the advice of this court is sought as therein provided, are applicable to cases arising under the bankruptcy act of July 1, 1898, c. 541; and, as this case has not gone to judgment, the certificate must be dismissed. Bar des v. Hawarden First Nat. Bank, 526. CASES AFFIRMED OR FOLLOWED. See Bankruptcy. CASES MODIFIED OR OVERRULED. See Railroad, 5. CONSTITUTIONAL LAW. A. Or the United States. 1. Questions of public policy, as affecting the liability for acts done, or upon contracts made and to be performed, within one of the States of the Union — when not controlled by the Constitution, laws or treaties of the United States, or by the principles of the commercial or mercantile law or of general jurisprudence, of national or universal application — are governed by the law of the State, as expressed in its own 734 INDEX. constitution and statutes, or declared by its highest court. Hartford Fire Insurance Co. v. Chicago, Milwaukee if St. Paul Railway Co., 91. 2. Sections 75 and 76, of Chapter 237 of the Laws of New Jersey of 1898, contained the following provisions: “ Sec. 75. The Supreme Court, court of oyer and terminer and court of quarter sessions, respectively, or any judge thereof, may on motion in behalf of the State, or defendant in any indictment, order a jury to be struck for the trial thereof, and upon making said order the jury shall be struck, served and returned in the same manner as in case of struck juries ordered in the trial of civil causes, except as herein otherwise provided.” “ Sec. 76. When a rule for a struck jury shall be entered in any criminal case, the court granting such rule may, on motion of the prosecutor, or of the defendant, or on its own motion, select from the persons qualified to serve as jurors in and for the county in which any indictment was found, whether the names of such persons appear on the sheriff’s book of persons qualified to serve as jurors in and for such county or not, ninety-six names, with their places of abode, from which the prosecutor and the defendant shall each strike twenty-four names in the usual way, and the remaining forty-eight names shall be placed by the sheriff in the box in the presence of the court, and from the names so placed in the box the jury shall be drawn in the usual way.” By sections 80 and 81 it was provided that where there is no struck jury, and the party is on trial for murder, he is entitled to twenty peremptory challenges, and the State to twelve; but in the case of a “ struck jury ” each party is allowed only five peremptory challenges. Held: (1) That these provisions are not in conflict with the Constitution of the United States; (2) that the highest court of the State of New Jersey having held that they are not in conflict with the constitution of that State, this court is foreclosed on that question by that decision. Brown v. New Jersey, 172. 3. Under the grant of power to Congress, contained in section 8 of Article I of the Constitution, “to regulate commerce with Foreign Nations and-among the several States, and with Indian Tribes,” that body may enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corporations where the natural and direct effect of such a contract shall be, when carried out, to directly and not as a mere incident to other and innocent purposes, regulate to any extent interstate or foreign commerce. Addyston Pipe if Steel Company v. United States, 211. 4. The provision in the Constitution regarding the liberty of the citizen is to some extent limited by this commerce clause; and the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and substantially, and not merely indirectly, remotely, incidentally and collaterally, regulate, to a greater or less degree, commerce among the States. Ib. INDEX. 735 5. Although the jurisdiction of Congress over commerce among the States is full and complete, it is not questioned that it has none over that which is wholly within a State, and therefore none over combinations or agreements so far as they relate to a restraint of such trade or commerce ; nor does it acquire any jurisdiction over that part of a combination or agreement which relates to commerce wholly within a State, by reason of the fact that the combination also covers and regulates commerce which is interstate, lb. 6. The Providence Hospital of the city of Washington was incorporated by the act of Congress of August 7, 1864, c. 50,13 Stat. 43, which gave to it “ full power and all the rights of opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the said corporation.” By the act of March 3, 1897, c. 387, 29 Stat. 665, making appropriations for the District of Columbia, an appropriation of $30,000 was made for two isolating buildings, to be constructed in the discretion of the Commissioners of the District, on the grounds of two hospitals, and to be operated as a part of such hospitals. Under that authority the Commissioners made an agreement with the Providence Hospital, which was a private hospital, in charge of sisters of the Roman Catholic Church, for the construction of an isolating building or ward on the hospital grounds, and for the receipt therein of poor patients sent there by the Commissioners, and for payments by the District on that account to the hospital. Held, that the agreement was one which it was within the power of the Commissioners to make; and that it did not conflict with the provision in Article I of the Amendments to the Constitution that “Congress shall make no law respecting an establishment of religion.” Bradfield v. Roberts, 291. 7. The following provisions in the first section of the act of the legislature of Indiana approved by the Governor of that State on the 4th day of March, 1893, viz.: “ That every railroad or other corporation, except municipal, operating in this State, shall be liable for damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: First. When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools and machinery connected with, or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person intrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition: Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform: Third. Where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any 736 INDEX. person delegated with the authority of the corporation in that behalf: Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round house, locomotive engine or train upon a railway, or where such injury was caused by the negligence of any person, co-employe or fellow-servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, co-employ£ or fellow-servant at the time acting in the place and performing the duty of the corporation in that behalf, and the person so injured obeying or conforming to the order of some superior at the time of such injury, having the authority to direct; that nothing herein shall be construed to abridge the liability of the corporation under existing laws,” as they are construed and applied by the Supreme Court of that State, are not invalid, and do not violate the Fourteenth Amendment to the Constitution of the United States. Tullis v. Lake Erie Western Railroad Co., 348. 8. The plaintiffs in error complained that the Board of Education used the funds in its hands to assist in maintaining a high school for white children, without providing a similar school for colored children. The substantial relief asked for was an injunction. The state court did not deem the action of the Board of Education in suspending temporarily and for economic reasons the high school for colored children a sufficient reason why the defendant should be restrained by injunction from maintaining an existing high school for white children. It rejected the suggestion that the Board proceeded in bad faith or had abused the discretion with which it was invested by the statute under which it proceeded, or had acted in hostility to the colored race. Held, that under the circumstances disclosed, this court could not say that this action of the state court was, within the meaning of the Fourteenth Amendment, a denial by the State to the plaintiffs and to those associated with them, of the equal protection of the laws, or of any privileges belonging to them as citizens, of the United States. Cumming v. Richmond County Board of Education, 528. 9. While all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land. Lb. See Contract, 1; La Abra Silver Mining Interstate Commerce Company ; Commission ; Tax and Taxation, 2. INDEX. 737 B. Constitution of States. Louisiana. See New Orleans Drainage Assessments. CONTRACT. 1. A lease to a commercial partnership from a railroad corporation of a strip of its land by the side of its track in the State of Iowa, for the purpose of erecting and maintaining a cold storage warehouse thereon, contained an agreement that the corporation should not be liable to the partnership for any damage to the building or contents, by fire from the locomotive engines of the corporation, although owing to its negligence. At the trial of an action brought in the Circuit Court of the United States by the partnership against the corporation to recover for damage to the building and contents by fire from its locomotive engines, owing to its negligence, under a statute of the State making any railroad corporation liable for damage to property of others by fire from its locomotive engines, the plaintiff contended that the agreement was void as against public policy. It appeared that, since this lease, the highest court of the State, in an action between other parties, had at first held a like agreement to be void as against public policy, but, upon a rehearing, had reversed its opinion, and entered final judgment affirming the validity of the agreement; and it also appeared that its final decision was not inconsistent with its decision or opinion in any other case. Held, that the question of the validity of the agreement was one of statutory and local law, and not of the commercial law, or of general jurisprudence; and that the final decision of the state court thereon was rightly followed by the Circuit Court of the United States. Hartford Fire Insurance Co. v. Chicago, Milwaukee St. Paul Railway Co., 91. 2. The United States, through an officer of Engineers, contracted with the appellees to excavate rock within a fixed time. The contract contained the following provisions among others: “ If, in any event, the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then in either case the party of the first part, or his successor legally appointed, shall have power, with the sanction of the chief of Engineers, to annul this contract by giving notice in writing to that effect to the party or parties (or either of them) of the second part, and upon the giving of such notice all money or reserved percentage due or to become due to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States; and the party of the first part shall be thereupon authorized, if an immediate performance of the work or delivery of the materials be, in his opinion, required by vol. clxxv—47 738 INDEX. the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised Statutes of the United States; provided, however, that if the party or parties of the second part shall, by freshet, ice or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work or delivering the materials at the time agreed upon in this contract, such additional time may in writing be allowed him or them for such commencement or completion as, in the judgment of the party of the first part or his successor, shall be just and reasonable; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.” Held, that, under a proper construction of this contract, the right or privilege of the contractors, if they failed to complete their work within the time limited, to have a further extension or extensions of time, depended upon the judgment of the engineer in charge when applied to to grant such extension ; and that no allegation or finding is shown in this record sufficient to justify the court in setting aside the judgment of the engineer as having been rendered in bad faith, or in any dishonest disregard of the rights of the contracting parties. United States v. Gleason, 588. See Jurisdiction, A, 4. COPYRIGHT. 1. Section 4966 of the Revised Statutes, enacting that “ any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just,” is not a penal statute and neither provides for the recovery of a penalty nor a forfeiture. Brady v. Daly, 148. 2. This action, being brought to recover damages for the violation of a dramatic copyright, and not being one to recover either a penalty or a forfeiture, the Circuit Court had jurisdiction of it by virtue of Rev. Stat. § 629, Subdivision 9, which confers upon Circuit Courts jurisdiction of all suits at law or in equity arising under the patent or copyright laws of the United States. Ib. 3. In the absence of any Federal statute of limitations, an action like this is limited by the limitation existing for the class of actions to which it belongs in the State where it was brought. Ib. 4. The question, as an original one, of how far a copyright of a play protects any particular scene therein from being publicly produced or INDEX. 739 represented by another, aside from the dialogue contained in the play, is not before the court in this case. Ib. 5. There was no election of an inconsistent remedy, which would bar the plaintiff from recovering in this action, lb. 6. In an action under Rev. Stat. § 4965 to recover a penalty of one dollar for every copy of an engraving or photograph infringing the copyright of another, the plaintiff’s recovery is limited to copies actually found in the possession of the defendant, and does not extend to copies already sold and put in circulation. Bolles v. Outing Company, 262. CORPORATION. 1. Under the laws of the State of New York, providing for the organization of manufacturing corporations, such corporations are not authorized to purchase the stock of a rival corporation, for the purpose of suppressing competition and obtaining the management of such rival. De La Vergne Co. v. German Savings Institution, 40. 2. Unless express permission be given to do so, it is not within the general powers of a corporation to purchase stock of other corporations for the purpose of controlling their management. Ib. 3. Where an action is brought upon a contract by a corporation to purchase such stock for such purpose, it is a good defence that the corporation was prohibited by statute from entering into it; even though the corporation may be compelled, in an action on quantum meruit, to respond for the benefit actually received. Ib. COURT OF CLAIMS. See La Abra Silver Mining Company, 4. DAMAGES. See Copyright, 6. DISTRICT OF COLUMBIA. The right given to a married woman by section 728, Revised Statutes of the District of Columbia, “to devise and bequeath her property,” applies to all her property, and is not limited by the language of a prior act, from which this section was taken, to such as she had not acquired by gift and conveyance from her husband. Hamilton v. Rathbone, 414. DIVORCE. 1. No appeal lies to this court from a decree of the Supreme Court of a Territory granting or refusing a divorce. Simms v. Simms, 162. 2. From a decree of the Supreme Court of a Territory, dismissing the suit 740 INDEX. of a husband* for a divorce, and awarding to the wife alimony and counsel fees, amounting in all to more than the sum of $5000, an appeal lies to this court so far as regards the sum of money, lb. 3. The disclaimer in Barber v. Barber, 21 How. 582, 584, of “ any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to a divorce a vinculo, or to one from bed and board,” has no application to the jurisdiction of the courts of a Territory, or to the appellate jurisdiction of this court over those courts, lb. 4. The statutes of the Territory of Arizona, authorizing any party, in whose favor a judgment for a sum of money has been rendered in a district court of the Territory, to file in that court, or in the Supreme Court of the Territory on appeal, a remittitur or release of part of the judgment, are applicable to a wife in whose favor a decree for alimony and counsel fees has been made in a suit brought against her by her husband for a divorce; and such a release by her attorneys of record of part of the sum awarded by the district court, if filed and recorded in the .Supreme Court of the Territory, while the case is there pending on appeal, is such a substantial and sufficient compliance with the statute (although the release itself is not attested by the clerk and under his seal) as to make it the duty of the court to give effect to the release. Ib. 5. When a party who has recovered judgment, in a district court of a Territory, for a sum of money sufficient to sustain the appellate jurisdiction of this court from the Supreme Court of the Territory, 'exercises a right given by the territorial statutes of remitting, by a release filed and recorded in that court while the case is there pending on appeal, so much of the judgment as will reduce it below the jurisdictional amount, and that court ignores the release and affirms the judgment of the district court, this court, on appeal by the other party, will modify the judgment of the Supreme Court of the Territory so as to stand as a judgment for the reduced sum, and will affirm the judgment as so modified, without considering the merits of the case. Ib. EJECTMENT. See Practice, 2. EXCEPTION. See Practice, 1. FINDINGS OF FACT. See La Abra Silver Mining Company, 4. INDEX. 741 HABEAS CORPUS. It is again held that judgments of the state courts in criminal cases should not be reviewed by Federal courts through writs of habeas corpus, but the proper remedy in such cases, when it is claimed that some right under the Constitution of the United States has been denied the person convicted, is by writ of error. Markuson v. Boucher, 184. INDIAN. 1. A good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress, or any patent from the Executive authority of the United States. The question in every case is whether the terms of the treaty are such as to manifest the intention of the parties to make a present grant to the persons named. Jones v. Meehan, 1. 2. A treaty between the United States and an Indian tribe must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians. Ib. 3. When the United States, in a treaty with an Indian tribe, and as part of the consideration for the cession by the tribe of a tract of country to the United States, makes a reservation to a chief or other member of the tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation. Ib. 4. The effect of the treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chippewa Indians, by which those bands ceded to the United States all their right, title and interest in a large tract of country, and by which “there shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of the Thief River for the chief Moose Dung,” was to grant him an alienable title in fee in the quantity of land at the designated place, subject only to its selection in due form, and to the definition of its boundaries by survey and patent, lb. 5. The right of inheritance, at the time of the death of the grantee in 1872, in land granted in fee by the United States by an Indian treaty to a member of an Indian tribe, whose tribal organization was still recognized by the Government of the United States, is controlled by the laws, usages and customs of the tribe, and not by the law of the State in which the land lies, nor by any action of the Secretary of the Interior. Ib. 742 INDEX. INHERITANCE, RIGHT OF. See Indian, 5. INSOLVENT LAWS OF STATES. An attachment regularly made in Rhode Island at the suit of a citizen of Rhode Island, of a debt due from a Rhode Island corporation to a citizen of Massachusetts, the day after the latter had filed in Massachusetts a petition for the benefit of the Massachusetts insolvent laws, but eight days before the publication of notice of the issue of a warrant on that petition, is a valid attachment, and is not dissolved by a subsequent assignment under those laws, notwithstanding the provision thereof dissolving attachments of the property of an insolvent debtor, made within four months before the first publication of such notice, that provision having no extra-territorial effect. King v. Cross, 396. INSURANCE. This is a case where the owners of a cargo of sugar had insured the same in the Atlantic Mutual Insurance Company, on and before April 29, 1893, at and for the sum of $166,145; and had, on April 29, 1893, insured the profits on the cargo against total loss only in the sum of $15,000 in the Insurance Company of North America. On July 6, 1893, the ship, while on her voyage, stranded on the coast of Newfoundland, became a total loss, and the voyage came to an end. The master, representing all concerned, contracted with local fishermen to give them one half of the sugar they could save. On July 8,1893, the insurers of the cargo, having been notified of the disaster, took charge and possession of the remnants of the cargo, and purchased from the salvors the portion which, under the agreement with the master, was theirs. The sugar was then transported by a vessel chartered by the insurers, and on their account, to Montreal. The value of the sugar that reached Montreal was about $20,000, and the expenses, salvage charges and the additional freight from Newfoundland to Montreal, paid by the Atlantic Mutual Insurance Company, exceeded $11,000. The insurers on the cargo settled with the refining company as for a total loss under its policy for $166,145, and the sugar saved was turned over to the refining company in part settlement of that sum on the basis of the average pro rata policy valuation. The value of the entire cargo on April 29, 1893, when the insurance on profits was effected, was alleged in the libel and admitted in the answer to have been about $181,000. The insurance company contested its liability upon the policy on profits on the ground, chiefly, that the receipt by the libellant of a portion of the sugars, viz., about $20,000 in value, prevented the loss from being total within the terms of the policy. Held, (1) That the saved remnants of the sugar were INDEX. * 743 taken exclusive possession of by the agents of the Atlantic Mutual Insurance Company, were by them forwarded on account of that company to Montreal, and were finally turned over to the Canada Sugar Refining Company, at an agreed valuation, in part payment of the claim of the latter for total loss of cargo; (2) that the facts disclose an actual abandonment by the Canada Sugar Refining Company, to the Atlantic Mutual Insurance Company, and the acceptance by the latter of such abandonment. Owing to the prompt action of the insurance company in taking charge and control of the cargo, and in adopting the agreement of the master with the salvors, it was not necessary for the assured to go through with all the usual forms of an abandonment. Neither of the parties seems to have acted upon the supposition that any other or more formal act of abandonment was necessary; (3) that the libellant is entitled to recover the amount of the profits as valued in the policy. Canada Sugar Refining Company v. Insurance Company of North America, 609. INTEREST. See New Orleans Drainage Assessments, 9. INTERNATIONAL ARBITRATION. See La Abra Silver Mining Company, 3. INTERNATIONAL LAW. 1. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. The Paquete Habana, 677. 2. At the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. And this rule is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter. Ib. 744 , INDEX. INTERSTATE COMMERCE. 1. Interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different States, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale and exchange of commodities. Addyston Pipe Steel Co. v. United States, 211. 2. The power to regulate interstate commerce, and to prescribe the rules by which it shall be governed, is vested in Congress, and when that body has enacted a statute such as the act of July 2, 1890, c. 647, entitled “an act to protect trade and commerce against unlawful restraints and monopolies,” any agreement or combination which directly operates, not alone upon the manufacture, but upon the sale, transportation and delivery of an article of interstate commerce, by preventing or restricting its sale, thereby regulates interstate commerce to that extent, and thus trenches upon the power of the national legislature, and violates the statute. Ib. 3. The contracts considered in this case, set forth in the statement of facts and in the opinion of the court, relate to the sale and transportation to other States of specific articles, not incidentally or collaterally, but as a direct and immediate result of the combination entered into by the defendants; and they restrain the manufacturing, purchase, sale or exchange of the manufactured articles among the several States, and enhance their value, and thus come within the provisions of the “ act to protect trade and commerce against unlawful restraints and monopolies.” Ib. 4. When the direct, immediate and intended effect of a contract or combination among dealers in a commodity is the enhancement of its price, it amounts to a restraint of trade in the commodity, even though contracts to buy it at the enhanced price are being made. Ib. 5. The judgment of the court below, which perpetually enjoined the defendants in the court below from maintaining the combination in cast-iron pipe as described in the petition, and from doing any business under such combination, is too broad, as it applies equally to commerce which is wholly within a State as well as to that which is interstate or international only. Ib. 6. The conceded facts from which it has been assumed in this case, as a matter of law, that the railway carriers were operating “ under a common control, management or arrangement for a continuous carriage or.shipment” were as follows: The several carriers transported hay from Memphis under through bills of lading, by continuous carriage, to Summerville and Charleston. The several roads shared in an agreed rate on traffic to Charleston and in a precisely equal in amount rate on traffic to Summerville. On shipments to Summerville, however, there was added to the Charleston rate the amount of the local rate from Charleston to Summerville, the benefit of which additional exaction was solely received by the local road on which INDEX. 745 Summerville was situated. The contention that under this state of facts the carriers did not constitute a continuous line, bringing them within the control of the Act to regulate Commerce, is no longer open to controversy in this court. In Cincinnati, New Orleans Texas Pacific Railway v. Interstate Commerce Commission, 162 U. S. 184, which was decided after this case was before the Commission and the Circuit Court, it was held under a state of facts substantially similar to that here found that the carriers were thereby subject to the Act to regulate Commerce. Louisville Nashville Railroad Co. n. Behlmer, 648. 7. It is settled by previous decisions that the construction given in this cause by the Interstate Commerce Commission and the Circuit Court of Appeals to the fourth section of the Act to regulate Commerce was erroneous, and hence that both the Interstate Commerce Commission and the Circuit Court of Appeals mistakenly considered, as a matter of law, that competition, however material, arising from carriers who were subject to the Act to regulate Commerce could not be taken into consideration; and likewise that all competition, however substantial, not originating at the initial point of the traffic, was equally as a matter of law excluded from view. Ib. 8. What was decided in the previous cases was that under the fourth section of the act substantial competition which materially affected transportation and rates might Under the statute be competent to produce dissimilarity of circumstances and conditions, to be taken into consideration by the carrier in charging a greater sum for a lesser than for a longer haul. The meaning of the law was not decided to be that one kind of competition could be considered and not another kind, but that all competition, provided it possessed the attributes of producing a substantial and material effect upon traffic and rate making, was proper under the statute to be taken into consideration. Ib. 9. It follows that while the carrier may take into consideration the existence of competition as the producing cause of dissimilar circumstances and conditions, his right to do so is governed by the following principles : First: The absolute command of the statute that all rates shall be just and reasonable, and that no undue discrimination be brought about, though, in the nature of things, this latter consideration may in many cases be involved in the determination of whether competition was such as created a substantial dissimilarity of condition. Second: That the competition relied upon be, not artificial or merely conjectural, but material and substantial, thereby operating on the question of traffic and rate making, the right in every event to be only enjoyed with a due regard to the interest of the public, after giving full weight to the benefits to be conferred on the place from whence the traffic moved as well as those to be derived by the locality to which it is to be delivered. Ib. See Constitutional Law, 3,4, 5. 746 INDEX. JURISDICTION. A. Jurisdiction of the Supreme Court. 1. A judgment of the highest court of a State, upholding the validity of a tax assessed under a statute of the State, upon money deposited with a trust company in the State by a resident of another State, cannot be reviewed by this court on writ of error upon the ground that the proceedings were repugnant to the Constitution of the United States, when no such ground appears to have been taken by the plaintiff in error, or considered by any court of the State, before the final judgment. Scudder v. New York Comptroller, 32. 2. This court has no jurisdiction to review, on appeal, a judgment of a Circuit Court of Appeals, affirming a decree of the Circuit Court below which overrules the decision of a Board of General Appraisers in a port of entry, appointed under the act of June 10, 1890, c. 407, and which sustains as valid, duties levied and collected by the collector of the port into which the goods were imported. Anglo-Californian Bank v. United States, 37. 3. The United States was properly made a party defendant in this suit, in this court, in place of the Secretary of the Treasury, lb. 4. The Bienville Water Supply Company was a corporation organized under the laws of Alabama, and was authorized thereby to build water works in Mobile, and to use the streets of that city for water purposes. The city and that company were authorized to contract together for the purpose of supplying the city with water. In the contract made between them under this authority there was no express provision for furnishing the inhabitants of the city with water, and no stipulation by the company that it would do so, though it was clear that the parties contemplated that the company would contract with the inhabitants to supply them with water for domestic purposes. The city was also authorized by the legislature to build or otherwise acquire water works of its own to supply water to itself and its inhabitants for the extinguishment of fires, and for sanitary and domestic purposes, and in its contract with the Bienville Company the city did not agree not to do so. It did agree to pay the company monthly for a certain number of hydrants supplied by it, but there was no averment on the part of the company that the city had repudiated said obligation or refused to make such stipulated payments, or intended to do so. The company filed a bill in equity against the city to enjoin it from making or carrying out any other contract for supplying water to its inhabitants, or for constructing a system of water works for that purpose during the continuance of said contracts and from building or acquiring a system of water works to bring water into the city during such continuance. To this bill the city demurred. The bill was dismissed. Appeal being taken to this court, a motion was made to dismiss it, joined with a motion to INDEX. 747 affirm. Held, that as there were no facts averred showing that the city had violated, was violating or intended to violate its contracts with the Bienville Company, and as there was no legislation to that end, the bill was properly dismissed in the court below; and as there was color for the motion in this court to dismiss, the motion to affirm would be sustained. Bienville Water Supply Co. v. Mobile, 109. 5. Blake v. McClung, 172 U. S. 239 (which case was brought here by writ of error to the Supreme Court of the State of Tennessee), having been remanded to that court, and the mandate having gone down, the counsel of Blake and others moved for the entry of a decree placing them in the same class and on exact equality with the Tennessee creditors in respect to the distribution of the assets of the insolvent company among its creditors; but this the state Supreme Court declined to do, and entered a decree that Blake and others were entitled to participate in the assets on the basis of a broad distribution of the assets of the corporation among all of its creditors without preference or priority, as though the act of 1877 had not been passed; that there should be a computation of the aggregate indebtedness due from the corporation to its creditors of every class wherever residing, whereupon Blake and others should be paid the percentage and proportion found to be due to them on that basis; and that the residue of the estate of the insolvent company should be applied, first to the payment of the indebtedness due to the creditors of the corporation residing in Tennessee as provided in section five of the act of 1877, and then pro rata to the payment of the debts of the alien and nonresident creditors of said corporation other than Blake and others. To this decree Blake and others duly excepted, but, insisting that that court had not complied with the mandate of this court, applied for leave to file a petition for mandamus to compel such compliance. Held that, without inquiring whether the conclusions of the Supreme Court of Tennessee were or were not in harmony with the views expressed by this court, the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error and not by mandamus, the remedy on error being not only entirely adequate, and open to be sought unrestrained by the amount involved, but, in respect of dealing with state tribunals, being manifestly the proper remedy. In re Blake et als, 114. 6. A party who does not take out a writ of error will not be heard to complain of adverse rulings in the court below. Bolles v. Outing Company, 262. 7. The contention, even if formally made, that plaintiffs in error were seeking to avail themselves of some right or immunity under the Constitution or laws of the United States, does not give this court jurisdiction to review the judgment of the Supreme Court of a State, where that judgment was based upon a doctrine of general law, sufficient of itself to determine the case. Seeberger n. McCormick, 274. 748 INDEX. 8. It having been decided in McCormick v. Market Bank, 165 U. S. 53b, that the contract1 of lease there in suit was void, the plaintiff in error in that case commenced this action in a state court in Illinois to recover from citizens of that State the rent for the property which had been intended to be leased to the bank by the void lease, on the ground that they had falsely assumed corporate authority to make the void lease. Such proceedings were had in the state courts that judgment was finally rendered by the Supreme Court of that State in McCormick’s favor. Held, that the question whether the plaintiffs in error rendered themselves liable to McCormick by reason of their false assumption of corporate authority was one of general law, and not one to be solved by reference to any law, statutory or constitutional, of the United States; and that, as no Federal question was in form presented to or passed upon by the state Supreme Court, and because its judgment was based upon matter of general and not Federal law, this court was without jurisdiction to review it. Ib. 9. The boundary line between the States of Illinois and Iowa is the middle of the main navigable channel of the Mississippi River; but whether in assessing taxes in Illinois on a bridge running from one State to the other, in crossing that bridge the dividing line was improperly located, is a question of fact the finding of which by a state court is not reviewable here. Keokuk Hamilton Bridge Company v. Illinois, 626. 10. The same may be said concerning the contention as to whether the bridge was assessed at more than its value and not at the same proportion of its value as other property was. Ib. 11. The tax on the capital stock was not a tax on franchises conferred by the Federal government, but on those conferred by the State, and as such is not open to objection here. Ib. 12. The tax was not a tax on interstate commerce. Ib. 13. As to the objection that the entire capital stock was assessed by the state board of equalization, it is enough to say that the question that the action of that board was in violation of the Constitution of the United States, except so far as it was claimed to be an interference with interstate commerce, was not raised, and therefore cannot be considered here for the first time. Ib. 14. No opinion is intimated on the contention that the judgment was erroneous because the assessment, in effect, included the entire capital stock of plaintiff in error as a consolidated corporation, lb. 15. On the facts, as stated below, it is held that the action of the Circuit Court in remanding the cause after its removal on the first application is not open to revision on this writ of error; and that, as the state court did not err in denying the second application, the motion to affirm must be sustained, as the question of the effect of that remanding order gave color for the motion to dismiss. Whitcomb n. Smithson, 635. INDEX. 749 16. In a case brought up by writ of error from the Supreme Court of a State, it appeared from a supplemental transcript of the record that proceedings for a removal of the case to the Circuit Court of the United States were taken in the court of original jurisdiction, and were denied; but that no question regarding these proceedings was made in the Supreme Court of the State, and the supplemental transcript was not filed in such Supreme Court until after the case had been decided there. Held: that as no certiorari was issued to bring it up, and no motion or order was made for leave to file it, it could not be considered here. Telluride Power Transmission Co. v. Rio Grande Western Railway Co., 639. 17. By Rev. Stat, section 2339, whenever, “by priority of possession,” rights to the use of water for mining purposes have vested and accrued, and the same are recognized by local customs and laws, “ the possessors and owners of such vested rights shall be maintained and protected in the same.” Held: that a question of fact, as to which party had priority of possession, was not a Federal question. Ib. 18. The jurisdiction of this court in cases brought up by writ of error to a state court does not extend to questions of fact, or of local law, which are merely preliminary to, or the possible basis of, a Federal question. Ib. 19. Under the act of Congress of March 3, 1891, c. 517, this court has jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without any certificate of the District Judge as to the importance of the particular case. The Paquete Habana, 677. See Bankruptcy; Copyright, 3; Tax and Divorce; Public Land, 21; Taxation. B. Jurisdiction of Circuit Courts of the United States. See Copyright, 2. C. Jurisdiction of District Courts of the United States. See Habeas Corpus. D. Jurisdiction of Territorial Courts. Since the act of Congress of March 3,1891, c. 539, establishing the Court of Private Land Claims, the courts of the Territory of Arizona have jurisdiction, as between private parties, to determine whether a title under a Mexican grant, which has not been confirmed or rejected by, and is not pending before Congress, and which is asserted to have been complete and perfect by the law prevailing in New Mexico before the cession of the country to the United States, was complete and perfect 750 INDEX. before the cession. Ainsa v. New Mexico if Arizona Railroad Co., 76. Y ’’ LA ABRA SILVER MINING COMPANY. 1. The act of December 28, 1892, c. 14, 27 Stat. 409, authorizing and directing the Attorney General to bring suit in the Court of Claims against the La Abra Silver Mining Company, etc., etc., which was signed by the President during a recess of Congress, was not invalid by reason thereof; but it is not decided whether the President can or cannot sign a bill after the final adjournment of Congress for the session. La Abra Silver Mining Co. v. United States, 423. 2. The suit brought by the Attorney General involved rights capable of judicial determination and was a “ case ” within the meaning of the clause of the Constitution extending the judicial power of the United States to all cases in law and equity arising under that instrument, the laws of the United States and the treaties made by it or under its authority. The act did not in any wise trench upon the constitutional functions of the President. Nor was it simply ancillary or advisory to him. Whatever decree was rendered by the Court of Claims was, unless reversed, binding and conclusive upon the United States and the defendants. Ib. 3. The act was not liable to the objection that it was inconsistent with the principles underlying international arbitration. On the contrary, such legislation is an assurance in the most solemn and binding form that the Government of this country will exert all the power it possesses to enforce good faith upon the part of citizens who, asserting that they have been wronged by the authorities of another country, seek the intervention of their Government to obtain redress, lb. 4. This court was entitled to look at all the evidence in the cause on the issue as to fraud, because the act did not contemplate a special finding by the Court of Claims of the ultimate facts established by the evidence. Ib. 5. The question stated in the act of 1892 — whether the award in question was obtained as to the whole sum included therein, or as to any part thereof, by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the said La Abra Silver Mining Company, or its agents, attorneys or assigns — is answered in the affirmative as to the whole sum included in the award, lb. LIBEL. The plaintiff in error sued the defendants in error in a state court of the State of Washington, to recover damages for a libel alleged to have been contained in the pleadings in a suit against him, instituted by them in the Circuit Court of the United States. The trial court dismissed the action, and its judgment was affirmed by the highest court of the INDEX. 751 State, which judgment so affirmed was- brought to this court by writ of error. A motion being made to dismiss the action or affirm the judgment below, Held, that there was color for the motion to dismiss, and therefore the motion to affirm could be considered; and as the judgment of the court below did not deprive the plaintiff of any right, privilege or immunity secured by the Constitution or laws of the United States, it should be affirmed. Abbott v. Tacoma Bank of Commerce, 409. LIMITATION, STATUTES OF. A. Of the United States. See Copyright, 2, 3. B. Of States and Territories. Louisiana. See New Orleans Drainage Assessments, 1, 2, 5. MARRIED WOMAN. See District of Columbia. MASTER AND SERVANT. See Railroad. MINERAL LAND. See Jurisdiction, A, 17; Public Land, 19, 20, 21. MOTION TO DISMISS. See Libel. NEW ORLEANS DRAINAGE ASSESSMENTS. 1. Following the decisions of the Supreme Court of Louisiana, this court holds that the drainage warrants of the city of New Orleans, in question in this case, being neither bills of exchange, nor promissory notes, nor notes payable to order or bearer, nor effects negotiable by indorsement or delivery, are not included within the terms of Article 3540 of the Civil Code of Louisiana, prescribing certain actions therein named; and are not prescribed by the statutes of the State. New Orleans v. Warner, 120. 2. The city of New Orleans, having voluntarily assumed the obligations of a trustee with respect to the fund to be raised by the collection of 752 INDEX. drainage assessments, cannot set up the prescription contained in Article 3547 of the Code against an application which, as such trustee, it had undertaken and had failed to perform — the rule being well settled that, in an action by a cestui que trust against an express trustee, the statute of limitations has no application, and no length of time is a bar. Ib. 3. It is immaterial whether the assessments against the city itself for the drainage of public property were reduced to judgments or not: by reducing its own claim to judgment, it neither ceased to be debtor nor trustee. Ib. 4. The judgment and decree in Peake v. New Orleans, 139 U. S. 342, cannot be considered as a controlling authority in this case, the facts being different, as shown in the opinion of the court in this case; and • it would be inequitable to permit the city to set up that decision as an excuse for its failure to collect these assessments. Ib. 5. A judgment for taxes does not differ from any other judgment in respect to its conclusiveness, and the city of New Orleans cannot, after the lapse of more than twenty years, question its liability upon the judgments against it for the amount of these assessments. Ib. 6. It was the intention of the amendmeqt of 1874 to the constitution of Louisiana, limiting the power of New Orleans to contract debts thereafter, to validate the issues of drainage warrants, some of which are questioned in this suit, not only for the work done, but for the property purchased by the city, in case it should elect to do the work itself, lb. 7. The fact that the city chose in 1876 to pay for property which Van Norden bought from the Ship Canal Company in 1872 six times as much as he then paid for it, is one that cannot be considered here; as, from the decision in Fletcher v. Peck, 6 Cranch, 87, to the present time this court has uniformly refused to inquire into the motives of legislative bodies. Ib. 8. The objection that the decree finds the city a debtor to the complainant in the amount of the warrants is more apparent than real, since it also declares that he is entitled to be paid out of the drainage assessments, refers it to a master to state an account of such assessments, and provides for an absolute decree against the city only if the fund established by the accounting shall be sufficient, and for a pro rata decree if such fund be not sufficient to pay all the warrant holders in full. Ib. 9. The liability of the city to pay interest was conditioned upon the presentation of the warrants and the indorsement upon them of the date of such presentation; but the commencement of suit was a sufficient demand to charge the defendant the interest from that day, at the rate specified in the contract. Ib. INDEX. 753 PRACTICE. 1. Allowing and signing a bill of exceptions is a judicial act, which can only be performed by the judge who sat at the trial; and section 953 of the Revised Statutes is intended to provide and does provide that no bill of exceptions can be deemed sufficiently authenticated, unless signed by the judge who sat at the trial, or by the presiding judge if more than one sat. Malony v. Adsit, 281. 2. This action being an action of ejectment, the provision in § 3524 of the Oregon Code with regard to actions for forcible entry and detainer have no application to it. Ib. 3. The appeal in this case having been allowed within six months after the receipt by the Attorney General of the statement of the case by the trial attorney, and the action of the trial attorney having been approved by one of the justices of the trial court, there is no sufficient reason for the motion to dismiss, this court having the power under its rules to notice plain errors, even when not assigned. United States v. Pena, 500. 4. An appeal from the Court of Private Land Claims can be allowed by one of the Associate Justices of the court. Ib. See Jurisdiction, A, 1; Public Land, 2. PRIZE OF WAR. See Admiralty, 10, 11,12,13. PUBLIC LAND. 1. The act of Congress of December 22,1858, 11 Stat. 374, confirming a grant of pueblos to Indians, operated to release to the Indians all the title of the United States to the land covered by it as effectually as if it contained in terms a grant de novo; and such action of Congress is not subject to judicial review. United States v. Conway, 60. 2. The United States is a proper and necessary party to a suit brought in the Court of Private Land Claims for confirmation of a private land claim, covering pueblos previously so granted to Indians, and can follow the litigation through all the courts that are given jurisdiction of the case. Ib. 3. When a title to public land has been confirmed by Congress, it should be respected by the Court of Private Land Claims; but conflicting claimants may resort to the ordinary remedies at law. Ib. 4. A claim in the Court of Private Land Claims for land within the limits of a mine grant, which grant has been confirmed by Congress and a patent issued therefor, must be rejected by that court. Real de Dolores del Oro'v. United States, 71. 5. Section 14 of the act of March 3, 1891, c. 539, 26 Stat. 854, 861, estab- vol. clxxv—48 754 INDEX. lishing that court, which provides for a personal judgment against the United States m cases where the land decreed to any claimant, under the provisions of the act, shall have been sold or granted by the United States, applies only to cases where such lands have been sold or grafted as public lands, for a consideration which equitably belongs to the owner of the land, and not to cases where the Government has merely released its interest to one apparently holding a good title under a Spanish or Mexican grant, which subsequently turns out to be invalid by reason of an older or better title. Ib. 6. Under the laws of Mexico prior to 1848, an alcalde had no power to make a grant of public lands. Hays n. United States, 248. 7. Where petitioner produced oral testimony tending to show a grant of lands by the governor of New Mexico, and an order upon the alcalde to put the grantee in possession; and also gave evidence, tending to show that these documents were afterwards lost or destroyed, and at the same time produced a grant by the alcalde in which no reference whatever was made to a prior grant by the governor, it was held that the grant of the alcalde was inconsistent upon its face with the alleged grant by the governor, and with the other circumstances in the case, and that the claim was properly rejected by the Court of Private Land Claims. Ib. 8. Possession of land since the treaty of Guadalupe Hidalgo, in 1848, will not of itself give a valid title to land; nor will it create the presumption of a valid grant where a void grant appears to have been made; or in case the surrounding circumstances are incompatible with the existence of a valid grant. Ib. 9. Generally, in public surveys, a meander line is a line which courses the banks of navigable streams or other navigable waters; but in this case it distinctly appears from the field notes and the plat, that the deputy surveyor by whom it was surveyed in 1834 and 1835, and whose acts were approved by the surveyor general, stopped his surveys at what he called a marsh, which intervened between the point where he stopped and the waters of Lake Erie, and thus limited the land which the United States in 1844, following that survey, patented to the person under whom the appellant claims, and thus excluded the marsh, leaving to subsequent measurements the actual determination of the line of separation between the lands thus patented, and those which the Government did not propose to convey. Niles v. Cedar Point Club, 300. 10. One receiving a patent will not ordinarily be heard to insist that by reason of an error on the part of a surveyor, more land was bought than was paid for, or than the Government was offering for sale. Ib. 11. This marsh was properly held not to be regarded as land continuously submerged. Ib. 12. The grant of lands, in-this case, set forth at length in the opinion of the court, was a grant in severalty, and not one of a single large tract INDEX. 755 to several persons, to be by them held in common, or distributed among each other. United States v. Pena, 500. 13. This grant, having been made after the signing of the treaty of Guadalupe Hidalgo, it was not within the power of the alcalde to change it by directing grants to additional persons, not included in the original grant; and the whole proceeding may be ignored, except so far as it indicates those who took title under the original grant, or discloses those who were their successors in interest. Ib. 14. Upon a long and uninterrupted possession of lands in Mexico, beginning long prior to the transfer of the territory in which they are situated to the United States, and continuing after that transfer, the law bases presumptions as sufficient for legal judgment, in favor of the possessor, in the absence of rebutting circumstances, which do not exist in this case. United States v. Chavez, 509. 15. This court holds in this case that there is no proof of any grant to the petitioner or those under whom he claims, and affirms the judgment of the court below in favor of the United States. Peabody v. United States, 546. 16. The claim of adverse possession (by those under whom the petitioner claims) down to the time of the occupation by the United States, is not sustained by the proof. Ib. 17. In Mexico, in 1831, a departmental assembly or territorial deputation had no power or authority to make a grant of lands; and the fact that the governor presided at a meeting of the territorial deputation at the time such a grant was made, makes no difference, as the power to make the grant was exclusively in the governor, and the territorial deputation had no jurisdiction in the matter. Chavez v. United States, 552. 18. By the act of July 2, 1864, c. 217, a grant of public land was made to the Northern Pacific Railroad Company to aid in the construction of its railroad and telegraph line. A small tract of this grant is the subject of this action of ejectment. In October, 1868, one Scott made a preemption declaratory statement regarding this tract, and settled upon it in 1869, but abandoned it in the same year and never returned. In October, 1872, he filed an amended statement excluding the land in controversy. On February 21, 1872, the company filed its map of general route through Montana. On the 22d of April, 1872, the Commissioner of the General Land Office, by direction of the Secretary of the Interior transmitted to the local land office in Montana a diagram showing the location of the road in the district in which the subject of controversy was situated, and directed the withholding from sale or location, preemption or homestead entry, of the odd-numbered sections within forty miles of the general route of the railroad. On May 3, 1872, McLean, a citizen of the United States, duly qualified to enter land, made a homestead entry of the tract in controversy in this case. On May 6, 1872, the diagram and order sent April 22 were received 756 INDEX. at the local land office and filed there. In the autumn of 1872 McLean placed a small building on the land in which he spent his nights until the spring of 1873 when he removed and never after resided there or made improvements. Proceedings were taken to cancel his entry, and it was cancelled in September, 1879. In July, 1882, the plat of definite location was filed, and the land in controversy is within forty miles of the general route, and within twenty miles of the line of definite location. In August, 1882, McLean died, leaving a will devising this land to his widow, which was duly probated. In March, 1883, McLean’s widow applied, as his widow under the act of June 15, 1880, c. 227, 21 Stat. 237, to purchase the tract. Held: (1) That whatever rights Scott might have acquired by his original declaratory statement, were lost by his amended declaratory statement; (2) that McLean had all the rights which attached to a valid entry, and might have proceeded under the act of June 15, 1880, c. 227, 21 Stat. 237, to make the purchase thereby authorized; (3) that his widow, having had this tract devised to her by her husband’s will, duly probated, was entitled to purchase the tract as the devisee of her husband, although her application for it was made as his widow. Northern Pacific Railroad n. Amacker, 564. 19. The provision in Kev. Stat. § 2326 for the trial of adverse claims to a mining patent “by a court of competent jurisdiction,” does not relate to any particular court, state or Federal; but it was the intention of Congress in this legislation to leave open to suitors all courts competent to determine the question of the right of possession. Blackburn v. Portland Gold Mining Co., 571. 20. A controversy between rival claimants under that and the previous section can be properly determined by a state court, if the usual conditions of Federal jurisdiction do not exist, and the judgment of the Supreme Court of a State in such case cannot be reviewed by this court, simply because the parties were claiming rights under a Federal statute. Ib. 21. The court does not undertake to say that no case can arise under this legislation, which turns upon a disputed construction, and therefore presents a question essentially Federal in its nature. Ib. See Indian, 1, 3, 4, 5; Jurisdiction, D. PUBLIC MONEYS OF THE UNITED STATES. Money derived from the sale of a vessel captured in 1863 as a blockade runner, which, pending proceedings in court for condemnation and forfeiture, was deposited by the marshal to await the further order of the court in a national bank which was a special or designated depositary of public moneys, and which deposit was in part lost by reason of the failure of the bank, is not public money of the United States INDEX. 757 which may be recovered from it under the act of March 3,1887, c. 359, 24 Stat. 505, generally known as the Tucker Act. Coudert v. United States, 178. RAILROAD. 1. The negligence of a conductor of a freight train is the negligence of a fellow-servant of a brakeman on the same train, who was killed by an accident occurring through that negligence. New England Railroad Co. v. Conroy, 323. 2. The negligence of such conductor is not the negligence of the vice, or substituted, principal or representative of the railroad company running the train, and for which that corporation is responsible, lb. 3. The general rule of law is that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow-servants in the course of the employment. Ib. 4. An employer is not liable for an injury to one employe occasioned by the negligence of another engaged in the same general undertaking; it is not necessary that the servants should be engaged in the same operation or particular work; it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and accordingly, in the present case, upon the facts stated, the conductor and the injured brakeman are to be considered fellow-servants within the rule. Ib. 5. While the opinion in Chicago, Milwaukee if St. Paul Railroad Co. v. Ross, 112 U. S. 377, contains a lucid exposition of many of the established rules regulating the relations between masters and servants, and particularly as respects the duties of railroad companies to their various employes, it went too far in holding that a conductor of a freight train is, ipso facto, a vice principal of the company; and in so far as it is to be understood as laying down, as a rule of law to govern in the trial of actions against railroad companies, that the conductor, merely from his position as such, is a vice principal, whose negligence is that of the company, it must be deemed to have been overruled, in effect if not in terms, in the subsequent case of Baltimore if Ohio Railroad v. Baugh, 149U. S. 368. Ib. See Contract, 1. STATUTE. A. Construction of. In the construction of statutes, prior acts may be cited to solve, but not to create an ambiguity. Hamilton v. Rathbone, 414. 758 INDEX. B. Statutes of the United States. See Admiralty, 1; Bankruptcy ; Constitutional Law, 6; Copyright, 1, 2, 6; District of Columbia ; Interstate Commerce, 2; Jurisdiction, A, 2, 17,19; D; La Abra Silver Mining Co., 1, 5; • Public Land, 1, 5, 18, 19; Public Moneys of the United States. C. Statutes of States and Territories. Arizona. Indiana. See Divorce, 4. See Constitutional Law, 7. Louisiana. See New Orleans Drainage Assessment, 1,2; Tax and Taxation, 2. Massachusetts. See Insolvent Laws of States. Neto Jersey. See Constitutional Law, A, 2. New York. See Corporation, 1. Oregon. See Practice, 2. Tennessee. See Jurisdiction, A, 5. D. Foreign Statutes. Canada. See Admiralty, 4. Mexico. See Public Land, 6. TAX AND TAXATION. 1. The collection of taxes under the authority of a State will not be enjoined by a court of the United States on the sole ground that the tax is illegal, but it must appear that the party taxed has no adequate remedy by the ordinary processes of the law, and that there are special circumstances bringing the case within some recognized head of equity jurisdiction. Arkansas Building fy Loan Association v. Madden, 269. 2. In Texas the law is established that when a person, by compulsion of the color of legal process, or of seizure of his person or goods, pays money unlawfully demanded, he may recover it back. Ib. 3. Inasmuch as the bill in this case contains nothing to indicate inability on the one hand to pay the franchise tax in question, or, on the other, to respond in judgment if it were found to have been illegally exacted, and sets up no special circumstances justifying the exercise of equity jurisdiction other than consequences which complainant can easily avert without loss or injury, the court holds that the bill cannot be sustained. Ib. 4. Section 7 of Chapter 106 of the Louisiana Statutes of 1890, after declaring “ that it is made the duty of the tax assessors throughout the State to place upon the assessment list all property subject to taxation,” con INDEX. 759 tained the following provision: “ This shall apply with equal force to any person or persons representing in this State business interests that may claim a domicil elsewhere, the intent and purpose being that no non-resident, either by himself or through any agent, shall transact business here without paying to the State a corresponding tax with that exacted of its own citizens; and all bills receivable, obligations or credits arising from the business done in this State are hereby declared assessable within this State, and at the business domicil of said non-resident, his agent or representative.” The defendant in error who was domiciled in the city of New York was the owner of credits which were evidenced by notes largely secured by mortgages on real estate in New Orleans; and these notes and mortgages were in the city of New Orleans, in possession of an agent of the defendant in error, who collected the interest and principal as it became due and deposited the same in a bank in New Orleans to her credit. Held, that under the act of 1890, as interpreted by the Supreme Court of the State, this property in the hands of the agent was subject to taxation in New Orleans, and that such taxation did not infringe any right secured by the Federal Constitution. New Orleans v. Stempel, 309. 5. Conceding, as a matter of fact, that the assessment in this case was technically in the wrong name, the error is not one that will justify equitable relief by injunction. Ib. 6. Under the issue presented by the pleadings no question of overvaluation was before the court. Ib. 7. The rule in such a case is that the Federal courts follow the construction placed upon the statute by the state courts, and in advance of such construction they should not declare property beyond the scope of the statute and exempt from taxation unless it is clear that such is the fact. Ib. 8. It is well settled that bank bills and municipal bonds are in such a concrete tangible form that they are subject to taxation where found, irrespective of the domicil of the owner; are subject to levy and sale on execution, and to seizure and delivery under replevin; notes and mortgages are of the same nature. Ib. See Jurisdiction, A, 9 to 14. TREATY. The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. Jones v. Meehan, 1. See Indian. TRUST AND TRUSTEE. See New Orleans Drainage Assessments, 1, 2, 3.