UNITED STATES REPORTS VOLUME 189 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1902 CHARLES HENRY BUTLER THÉ^AN(K^AwAb LT SHING CO. 21 ^TORBAY SQ&EET, NEW YORK 1903 Copyright, 1903. BY 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. DAVID JOSIAH BREWER, Associate Justice. HENRF BILLINGS BROWN, Associate Justice. EDWARD DOUGLASS WHITE, Associate Justice. RUFUS W. PECKHAM, Associate Justice. JOSEPH McKENNA, Associate Justice. OLIVER WENDELL HOLMES, Associate Justice. WILLIAM R. DAY,* Associate Justice. PHILANDER CHASE KNOX, Attorney Generar. JOHN KELVEY RICHARDS,! Solicitor General. HENRY MARTYN HOYT,! Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. * Appointed March 2, 1903, in place of George Shiras, Jr., Associate Justice, resigned February 23, 1903. t Resigned March 16, 1903. t Appointed March 16, 1903, in place of John K. Richards resigned. JUSTICES BY WHOM THE OPINIONS IN THIS VOLUME WERE RENDERED. The Chief Justice. Brill v. Peckham Motor Truck and Wheel Co., 57. Hennessy v. May, 35 (Memo.). Hennessy v. Moise, 35 (Memo.). Hennessy v. Richardson Drug Company, 25. In re Key, 84. Jaquith v. Alden, 78. Kennedy Company v. Argonaut Company, 1. Kirwan v. Murphy, 35. Kokomo Fence Machine Company v. Kitselman, 8. Mexican Central Railway Co. v. Duthie, 76. Tennessee v. Condon, 64. Union and Planters’ Bank v. Memphis, 71. Mr. Justice Harlan. Giles v. Harris, 493 (dissent). Japanese Immigrant Case, The, 86. Oregon and California Railroad Co. v. United States, 103, 116 (2 cases). Mr. Justice Brewer. Bell v. Commonwealth Title Insurance and Trust Co., 131. De Cambra v. Rogers, 119. Eastern Building and Loan Association v. Williamson, 122. Fidelity and Deposit Co. v. L. Bucki & Son Lumber Co., 135. Giles v. Harris, 488 (dissent). McClung v. Penny, 143. Missouri Pacific Railway Co. v. United States, 284 (dissent). Sawyer v. Piper, 154. Winebrenner v. Forney, 148. Mr. Justice Brown. Davis and Farnum Manufacturing Co. v. Los Angeles, 207. Glidden v. Harrington, 255. Nashua Savings Bank v. Anglo-American Company, 221. Osceola, The, 158. Rankin v. Fidelity Insurance, Trust and Safe Deposit Co., 242. V vi OCTOBER TERM, 1902. Justices by whom the opinions in this volume were rendered. Roanoke, The, 185. San José Land and Water Co. v. San José Ranch Co., 177. Sena v. United States, 233, 504. United States v. Nix, 199. Wiser v. Lawler, 260. Mr. Justice White. Farmers’ and Merchants’ Insurance Co. v. Dobney, 301. Jaquith v. Alden, 83 (dissent). Missouri Pacific Railway Co. v. United States, 274. Onondaga Nation v. Thacher, 306. Potter v. Hall, 292. Mr. Justice Peckham. Finney v. Guy, 335. Foster v. Pryor, 325. Sexton v. California, 319. Shurtleff v. United States, 311. Texas and Pacific Railway Co. v. Carlin, 354. Thayer v. Spratt, 346. Mr. Justice McKenna. Chattanooga National Building and Loan Association v. Denson, 408. Conemaugh, The, 363. Detroit, Fort Wayne and Belle Isle Railway v. Osborn, 383. Gordon v. Randle, 417. Jaquith v. Alden, 83 (dissent). United States v. Mission Rock Company, 391. Zane v. Hamilton County, 370. Mr. Justice Holmes. Brownfield v. South Carolina, 426. Giles v. Harris, 475. Knoxville Water Company v. Knoxville, 434. National Bank and Loan Company v. Carr, 426. National Bank and Loan Company v. Petrie, 423. Paquete Habana, The, 453. Pardee v. Aldridge, 429. Pullman Company v. Adams, 420. San Diego Land and Town Company v. Jasper, 439. Southern Pacific Railway Co. v. United States, 447. Texas and Pacific Railway Co. v. Behymer, 468. United States v. Barnett, 474. United States v. Sweet, 471. TABLE OF CONTENTS. TABLE OF CASES REPORTED. Adams, Pullman Company v........................... Alden, Jaquith v................................... Aldridge, Pardee v................................. Anglo-American Land, Mortgage and Agency Company, Nashua Savings Bank v. . . . . Antonio Suarez, United States v.................... Antonio y Paco, United States v.................... Argonaut Mining Company, Kennedy Mining and Mill- ing Company -y................................. Bank of Commerce v. Wiltsie........................ Barnett, United States v........................... Bauendahl v. Bernheimer ...... Behymer, Texas and Pacific Railway Company v. . Bell v. Commonwealth Title Insurance and Trust Company ............................................. Bernheimer, Bauendahl v............................ Billingslea v. Kansas City Southern Railway Company . Binns, Illinois ex rel. Rayburn -y. . Board of Street Commissioners of the City of Boston, Lawrence v. ..... . Board of Street Commissioners of the City of Boston, Sears v. ..... Bowring, Steamship Ely v. ......................... Brill v. Peckham Motor Truck and Wheel Company Brownfield v. South Carolina....................... Buston v. Pennsylvania Railroad Company . California, Sexton v. . . . . Capdevielle v. United States ex rel. Kilpatrick vii PAGE 420 78 429 221 453 453 1 505 474 513 468 131 513 515 506 516 515 514 57 426 511 319 510 viii TABLE OF CONTENTS. Table of Cases Reported. Carlin, Texas and Pacific Railway Company v. Carnegie Steel Company, Limited, Witherow -y. Carr, National Bank and Loan Company y. Central Trust Company, Julian v. . Chamberlain y. Peoria, Decatur and Evansville Railway Company ........................................... Chattanooga National Building and Loan Association v. Denson............................................. Chicago Hydraulic Press Brick Company, Kimbell v. Ching v. United States............................. Church, Nester v................................... Clarke v. Northampton.............................. Cleveland, Cincinnati, Chicago and’ St. Louis Railway Company v. Clyde................................... Clyde, Cleveland, Cincinnati, Chicago and St. Louis Railway Company v...................................... Coler, Wilkes County v............................. Commonwealth Insurance and Trust Company, Bell v. . Condon, Tennessee v........ Conemaugh, The................................. Continental Trust Company, Contracting and Building Company v...................................... Contracting and Building Company v. Continental Trust Company............................................ Creed and Cripple Creek Mining and Milling Company v. Uinta Tunnel, Mining and Transportation Company .............................................. Cuatro de Settembre, United States v. ... . Davis and Farnum Manufacturing Company v. Los Angeles ................................. De Baca v. United States . . . De Cambra v. Rogers................................ Denson, Chattanooga National Building and Loan Association v.......... Detroit, Fort Wayne and Belle Isle Railway v. Osborn . Dimmick v. United States........................... Dobney, Farmers’ and Merchants’ Insurance Company v. PAGE 354 516 426 511 517 408 512 509 505 513 516 516 511 131 64 363 514 514 511 453 207 505 119 408 383 509 301 TABLE OF CONTENTS. ix Table of Cases Reported. PAGE Doherty v. Vermont...................................514 Down man v. German Insurance Company . . .513 Duthie, Mexican Central Railway Company, Limited, v. 76 Eastern Building and Loan Association v. Williamson . 122 Engracia, United States v............................453 Emsheimer v. New Orleans.............................511 Erie and Western Transportation Company, Union Steam- boat Company v. ...... . 363 Espana, United States v..............................453 Eufaula Cotton Oil Company v. Stillwell & Bierce and Smith-Vaile Company ...... 509 Farmers’ and Merchants’ Insurance Company v; Dobney 301 Ferguson v. Helliesen................................510 Fernandito, United States v....................... . 453 Fidelity and Deposit Company v. L. Bucki & Son Lumber Company..........................................135 Fidelity Insurance, Trust and Safe Deposit Company, Rankin v. ..................................... 242 Finney v. Guy........................................... Fisher, Yamataya v. ..................................86 Fitzpatrick, Second National Bank v..................508 Forney, Winebrenner v................................... Foster v. Pryor ••..... 325 German Insurance Company, Downman v. . . .513 Giles v. Harris ........ 475 Given v. Times-Republican Printing Company . . . 513 Glenn, Moss v........................................... Glidden v. Harrington ...... 255 Gombret, Lyon v..................................... 508 Gordon v. Randle.................................... 417 Guy, Finney -y.......................................... Hall, Potter v. . . . . . . gc)« Hamilton County, Zane v............................. 379 Harrington, Glidden v..............................* 255 Harris, Giles v.......................• . . X TABLE OF CONTENTS. Table of Cases Reported. £AGE Hegeman v. Springer 505 Helliesen, Ferguson v...........................510 Heman, Schulte v................................507 Hennessy v. May..................................35 Hennessy v. Moise................................35 Hennessy v. Richardson Drug Company .... 25 Hitchcock, United States ex ret. Phillips -y. . . . 507 Home Insurance Company, Virginia-Carolina Chemical Company v...................................517 Hume -y. United States..........................510 Hutchins, Lamson v..............................514 Illinois ex ret. Rayburn u Binns................506 In re Key........................................84 Jackson, Mexican National Railroad Company u . . 512 Japanese Immigrant Case, The.....................86 Jaquith -y. Alden................................78 Jasper, San Diego Land and Town Company -y. . . 439 Julian -y. Central Trust Company................511 Kansas City Southern Railway Company, Billingslea -y. 515 Kennedy Mining and Milling Company v. Argonaut Min- ing Company...................................1 Key, In re ......... 84 Kilpatrick, United States ex rel., Capdevielle v. . . 510 Kimbell v. Chicago Hydraulic Press Brick Company . 512 Kirwan w. Murphy ................................35 Kitselman, Kokomo Fence Machine Company -y. .8 Knoxville, Knoxville Water Company -y. ... 434 Knoxville Water Company v. Knoxville . . . 434 Kokomo Fence Machine Company v. Kitselman . . 8 L. Bucki & Son Lumber Company, Fidelity and Deposit Company -y. ....... . 135 Lamson v. Hutchins..............................514 Lawler, Wiser v. . ............................. 260 Lawrence v. Board of Street Commissioners of the City of Boston...................................516 TABLE OF CON TENTS. xi Table of Cases Reported. PAGE Liverpool, Brazil and River Plate Steam Navigation Company, Limited, Steamship Eagle Point v. . . .510 Lola, United States v...........................453 Los Angeles, Davis and Farnum Manufacturing Com- pany v......................................207 Louisville and Nashville Railroad Company, Wright v. . 512 Lyon v. Gombret.................................508 McCarthy v. McCarthy.................................515 McCarthy, McCarthy -v...........................515 McClung v. Penny ........ 143 McKeon, New York, New Haven and Hartford Railroad , Company v..................................508 McKinley, Van Buren v........ 516 May, Hennessy v..................................35 Memphis, Union and Planters’ Bank v. ... . 71 Mexican Central Railway Company, Limited, v. Duthie . 76 Mexican National Railroad Company v. Jackson . . 512 Mission Rock Company, United States v. . . .391 Missouri Pacific Railway Company v. United States . 274 Moise, Hennessy v................................35 Moore v. Southern Railway Company .... 513 Moss v. Glenn...................................... Mullins, United States v........................513 Murphy, Kirwan v................................... Nashua Savings Bank v. Anglo-American Land, Mort- gage and Agency Company ..... 221 National Bank and Loan Company v. Carr . . . 426 National Bank and Loan Company v. Petrie . . 423 National Railway Publication Company, United States ex rel. Payne v. . . .' . 512 Nester v. Church ..... 505 New Orleans, Emsheimer u . . . . 5H New York, New Haven and Hartford Railroad Company v. McKeon.................................. 50g Nix u United States.................... ’ * 199 Nix, United States v.................[ [ ' jag xii TABLE OF CONTENTS. Table of Cases Reported. Northampton, Clarke v................................ O’Brien v. Shine..................................... Olcott, Witherspoon v................................ Onondaga Nation v. Thacher........................... Oregon and California Railroad Company v. United States. No. 1......................... Oregon and California Railroad Company v. United States. No. 2 ...................................... Oriente, United States v. ........................... Osborn, Detroit, Fort Wayne and Belle Isle Railway v. . Osceola, The...................... Paquete Habana, The........................ Paquete Habana, United States v. . Pardee v. Aldridge.................................. Payne v. United States ex rel. National Railway Publication Company........................................ Payne v. United States ex rel. Railway List Company Peckham Motor Truck and Wheel Company, Brill v. Peoria, Decatur and Evansville Railway Company, Chamberlain v. . ........................ Pennsylvania Railroad Company, Buston y. . . . Penny, McClung v. ................................... Petrie, National Bank and Loan Company v. Phillips, United States ex rel., v. Hitchcock Phillips, United States ex rel., v. Ware . . . . Piper, Sawyer v...................................... Poder de Dios, United States -y...................... Potter v. Hall ...................................... Pryor, Foster v. .................................... Pullman Company v. Adams............................. Railway List Company, United States ex rel. Payne v. Randle, Gordon v........................ Rankin v. Fidelity Insurance, Trust and Safe Deposit Company............................................. Rayburn, Illinois ex rel., Binns v................... page 513 516 509 306 103 116 453 383 158 453 453 429 512 512 57 517 511 143 423 507 507 154 453 292 325 420 512 417 242 506 TABLE OF CONTENTS. xiii Table of Cases Reported. PAGE Richardson Drug Company, Hennessy v. ... 25 Roanoke, The................................... 185 Rogers, De Cambra v..............................119 San Diego Land and Town Company v. Jasper . . 439 San José Land and Water Company v. San José Ranch Company ......... 177 San José Ranch Company, San José Land and Water Company v. ....... . 177 Santiago Apostol, United States v. .... 453 Sawyer v. Piper..................................154 Schooner Expresso v. United States...............515 Schooner Gibara Habana v. United States . . . 515 Schulte v. Heman............................ ' . 507 Sears v. Board of Street Commissioners of the City of Boston.......................................515 Second National Bank v. Fitzpatrick . . . . 508 Sena v. United States........................ 233 504 Severità, United States v. ......................453 Sexton v. California.............................319 Shine, O’Brien v.................................... Shurtleff v. United States.......................311 South Carolina, Brownfield v. . . . . . . 426 Southern Pacific Railroad Company v. United States . 447 Southern Railway Company, Moore v. . . . . 513 Spratt, Thayer v.................................... Springer, Hegeman v................................. Steamship Eagle Point v. Liverpool, Brazil and River Plate Steam Navigation Company, Limited . . 510 Steamship Ely v. Bowring ...... 514 Stillwell & Bierce and Smith-Vaile Company, Eufaula Cotton Oil Company v...... . 509 Sweet, United States v.............................. Tennessee v. Condon ...... 64 Texas and Pacific Railway Company v. Behymer . . 468 Texas and Pacific Railway Company v. Carlin . , 354 Thacher, Onondaga Nation v.......................306 xiv TABLE OF CONTENTS. Table of Cases Reported. PAGE Thayer v. Spratt.................................... 346 Times-Republican Printing Company, Given v. . .513 Uinta Tunnel, Mining and Transportation Company, Creed and Cripple Creek Mining and Milling Company v............................................511 Union and Planters’ Bank v. Memphis . ... 71 Union Steamboat Company -y. Erie and Western Trans-portation Company.................................363 United States ex rel. Kilpatrick, Capedevielle v. . . 510 United States ex rel. National Railway Publication Company, Payne -y.................................512 United States ex rel. Phillips v. Hitchcock . . . 507 United States ex rel. Phillips v. Ware .... 507 United States ex rel. Railway List Company, Payne v. . 512 United States w. Antonio Suarez.......................453 United States v. Antonio y Paco.......................453 United States v. Barnett ....... 474 United States, Ching v....................... . . 509 United States v. Cuatro de Settembre .... 453 United States, De Baca v..............................505 United States, Dimmick -y.............................509 United States v. Engracia.............................453 United States v. Espana...............................453 United States v. Fernandito...........................453 United States, Hume v. . 510 United States v. Lola.................................453 United States v. Mission Rock Company . . . 391 United States, Missouri Pacific Railway Company v. .274 United States v. Mullins..............................513 United States -y. Nix.................................199 United States, Nix -y.................................199 United States, Oregon and California Railroad Company v. No. 1..........................................103 United States, Oregon and California Railroad Company v. No. 2..........................................116 United States v. Oriente..............................453 United States -y. Paquete Habana......................453 TABLE OF CONTENTS. xv Table of Cases Reported. PAGE United States v. Poder de Dios........................453 United States v. Santiago Apostol.....................453 United States, Schooner Expresso v. . . . .515 United States, Schooner Gibara Habana v. . . . 515 United States, Sena v............................ 233, 504 United States v. Severità ............................453 United States, Shurtleff v.......................... 311 United States, Southern Pacific Railroad Company v. . 447 United States v. Sweet................................471 Van Buren v. McKinley.................................516 Vermont, Doherty v....................................514 Virginia-Carolina Chemical Company v. Home Insur- ance Company.................................... 517 Ware, United States ex rei. Phillips v................507 White v. Wright.......................................507 Wilkes County v. Coler................................511 Williamson, Eastern Building and Loan Association v. . 122 Wiltsie, Bank of Commerce v. ..... 505 Winebrenner v. Forney ....... 148 Winston v. Winston....................................506 Winston, Winston v....................................5QQ Wiser v. Lawler.......................................260 Witherow v. Carnegie Steel Company, Limited . . 516 Witherspoon v. Olcott.................................509 Wright v. Louisville and Nashville Railroad Company . 512 Wright, White -y......................................507 Yamataya v. Fisher ....... 86 Zane v. Hamilton County ...... 370 Index 519 TABLE OF CASES CITED IN OPINIONS. PAGE A. Heaton, The, 43 Fed. Rep. 592 174 Agincourt, The, 1 Hagg. Adm. 271 171 Aldridge v. Pardee, 24 Tex. Civ. App. 254 431 Allen v. Georgia, 166 U. S. 138 259 Allen v. Walsh, 25 Minn. 543 341, 344 Amalia, The, 34 L. J. Adm. 21 467 American Construction Co. v. Jacksonville Ry., 148 U. S. 372 85 American Sugar Refining Co. v. New Orleans, 181 U. S. 277 73, 74 Ames v. Swett, 33 Me. 479 195 Anderson ». Philadelphia Ware- house Co., Ill U. S. 479 248, 252 Andrews v. Andrews, 188 U. S. 14 507 Andrews v. Mockford, 1896,1 Q. B. D. 372 264 Anglo-American Co. v. Dyer, 181 Mass. 593 232 Anvil Mining Co. v. Humble, 153 U. S. 540 142 Ard v. Brandon, 156 U. S. 537 114 Argonaut Mining Co. v. Kennedy Mining & Milling Co., 131 Cal. 15 2 Arivaca, Land & Cattle Co. v. United States, 184 U. S. 649 238 Arrowsmith v. Harmoning, 118 U. S; 194 509 Atlantic, The, Abbott’s Adm. 451 173 Ayers ». Watson, 113 U. S. 595 500 Bailey v. Birkenhead &c. Ry., 12 Beav. 433 230 Baker v. Grice, 169 U. S. 284 506 Baltimore &c. R. R. v. Hopkins, 130 U. S. 210 508 Banholzer v. New York Life Ins. Co., 178 U. S. 402 126 Bank v. Memphis, 101 Tenn. 154 75 Bank v. Tennessee, 104 U. S. 493 75 Bank of Commerce, In re, 153 Ind. 460 506 PAGE Bank of Commerce v. Tennessee, 161 U. S. 134 74 Bardon v. Northern Pacific R. R. , 145 U. S. 535 452 Barney v. Winona &c. R. R., 117 U. S. 228 113 Barrows v. Downs, 9 R. I. 446 228 Beard v. Union &c. Publishing Co., 71 Ala. 60 413 Bedford v. Eastern Building & Loan Assn., 181 U. S. 227 416, 417 Belfast, The, 7 Wall. 624 194 Bell v. Bell, 181 U. S. 175 507 Bell v. Commonwealth Title Ins. & Trust Co., 110 Fed. Rep. 828; 183 U. S. 699 132 Belleville &c. R. R. v. Gregory, 15 Ill. 20 382, 383 Bement v. National Harrow Co., 186 U. S. 70 353 Ben Flint, The, 1 Abb. U. S. 126; S. C., 1 Biss. 562 173 Biggs v. McBride, 17 Ore. 640 314 Blake v. United States, 103 U. S. 227 315 Bleistein v. Donaldson Co., 188 U. S. 239 505 Blythe v. Hinckley, 173 U. S. 501 489 Blythe Co. v. Blythe, 172 U. S. 644 489 Boring v. Griffith, 1 Heisk. 456 70 Bowden v. Johnson, 107 U. S. 251 246 Brady v. Williams, 23 L. D. 533; 25 L. D. 55; 25 L. D. 402 154 Brant v. Virginia Coal & Iron Co., 93 U. S. 326 271 Brig George, The, 1 Sumner, 151 172 Brig Whitaker, 1 Sprague, 229 195 Brill v. Peckham Motor Truck Co., 105 Fed. Rep. 626; 108 Fed. Rep. 267; 110 Fed. Rep. 377; 183 U. S. 698 58 Brill v. Third Avenue R. R., 103 Fed. Rep. 289 57, 58 Brinckerhoff v. Lansing, 4 Johns. Ch. 65 271 xvii xviii TABLE OF CASES CITED. PAGE Brown v. Bradish Johnson, 1 Woods, 301 173 Brown v. Hitchcock, 173 U. S. 473 54 Brown v. Keene, 8 Pet. 115 501 Brown v. McGran, 14 Pet. 479 253 Brown v. Overton, 1 Sprague, 462 173 Brown ». Shannon, 20 How. 55 499 Browne v. Turner, 176 Mass. 9 438 Bucher ®. Cheshire R. R., 125 U. S. 555 228 Building & Loan Assn. v. Ebaugh, 185 U. S. 114 123, 125 Building & Loan Assn. v. Price, 169 U. S. 45 489 Burfenning ®. Chicago &c. Ry., 163 U. S. 321 122 Burns, In re, 20 L. D. 28; 20 L. D. 295; 23 L. D. 430 53 Buron v. Denman, 2 Exch. 167 465 Burst v. Jackson, 10 Barb. 219 195 Butler v. Gage, 138 U. S. 52 506 Cagle v. Mendenhall, 20 L. D. 446; 26 L. D. 177 153 Calhoun v. Violet, 173 U. S. 60 296 Cambridge v. Railroad Commis- sioners, 153 Mass. 161 440 Cameron v. United States, 146 U. S. 533 508 Canada Southern Ry. v. Gebhard, 109 U. S. 527 230 Carey v. Williams, 79 Fed. Rep. 906 252 Carrick v. Lamar, 116 U. S. 423 56 Carter v. Texas, 177 U. S. 442 427 Castillo v. McConnico, 168 U. S. 674 505, 506 Cedar Rapids R. R. v. Herring, 110 U. S. 27 113 Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S. 24 425 Chadwick ». Kelly, 187 U. S. 540 507 Chapin v. Bourne, 8 Cal. 294 405 Chapman v. Barney, 129 U. S. 677 501 Chappell v. United States, 160 U. S. 499 216 Cherokee Nation v. Journeycake, 155 U. S. 196 152 Chicago &c. R. R. v. Wiggins Ferry Co., 108 U. S. 18 75 Chicago &c. R. R. v. Wiggins Ferry Co., 1.19 U. S. 615 125, 128 Chisholm ». Georgia, 2 Dall. 419 34 Chubb v. Upton, 95 U. S. 665 232 Church ». Hubbart, 2 Cranch, 187 228 Churchill v. Crease, 5 Bing. 177 205 PAGE Chusan, The, 2 Story, 455 194, 196 Cincinnati Gas Co. v. Western Siemens Co., 152 U. S. 200 142 City v. Babcock, 3 Wall. 240 231 City of Alexandria, The, 17 Fed. Rep. 390 172, 173, 174 City Ry. v. Citizens’ R. R., 166 U. S. 557 217 Clark v. Herington, 186 U. S. 206 452 Commander-in-Chief, The, 1 Wall. 43 466 Commonwealth v. Slifer, 25 Pa. St. 23 314 Concord First Nat. Bank v. Hawkins, 174 U. S. 364 426 Conde v. York, 168 U. S. 642 424 Condon v. Maloney, 108 Tenn. 82 67, 68 Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S. 250 228 Connolly v. Union Sewer Pipe Co., 184 U. S. 540 425 Cooley v. Board of Wardens, 12 How. 299 197 Cooper v. Newell, 173 U. S. 555 75 Corbus v. Alaska Co., 187 U. S. 455 220 Couch v. Steel, 3 El. & Bl. 402 175 Coy, In re, 127 U. S. 731 491 Crespin ». United States, 168 U. S. 208 240 Croucher v. Oakman, 3 Allen, 185 173 Cruickshank v. Bidwell, 176 U. S. 73 54, 56 Crutcher v. Kentucky, 141 U. S. 47 422 Curnutt v. Jones, 21 L. D. 40 299 Daley v. People’s Building &c. Assn., 172 Mass. 533 127 Davidson v. New Orleans, 96 U. S. 97 258, 509 Davis &c. Mfg. Co. v. Los An- geles, 115 Fed. Rep. 537 209 Debs, In re, 158 U. S. 564 288 Degant v. Michael, 2 Ind. 396 198 Dejarnett ». Haynes, 23 Miss. 600 220 Dempsey v. Chambers, 154 Mass. 330 465 Denson v. Chattanooga National Building & Loan Assn., 107 Fed. Rep. 777 409 Derry v. Peek, 14 App. Cas. 337 444 Detroit v. Detroit Citizens’ Street Ry., 184 U. S. 368 437 Detroit, Ft. Wayne &c. Ry. ». Commissioner, 127 Mich. 219 386 Dickson v. Wyman, 111 Fed. Rep. 726 79, 83 Dodge ». Woolsey, 18 How. 331 220 Donnell v. Kittrell, 15 L. D. 580 299 TABLE OF CASES CITED. xix PAGE Dow ». Beidelman, 125 U. S. 680 443 Dower ». Richards, 151 IT. S. 658 232 Dreyer ». Illinois, 187 U. S. 71 506 Dudley v. Collier & Pinckard, 87 Ala. 431 413 Dullam ». Willson, 53 Mich. 392 314 Dupasseur v. Rochereau, 21 Wall. 130 431 East Tennessee, Virginia &c. Ry. v. Interstate Commerce » Comm., 181 U. S. 1 288 Eastern Building & Loan Assn. ».Williamson, 189 U. S. 122 342 Easton v. Iowa, 188 U. S. 220 198 Edith, The, 94 U. S. 518 194 Edith Godden, The, 23 Fed. Rep. 43 173 Egan v. Hart, 165 U. S. 188 180, 353 Eldridge v. Cowell, 4 Cal. 80 405 Emery ». Berry, 28 N. H. 473 229 Ennis v. Smith, 14 How. 400 125 Erie R. R. v. Purdy, 185 U. S. 148 506 Eustis ». Bolles, 150 IT. S. 361 508 Fagin v. Connoly, 25 Mo. 94 253 Fallbrook Irrigation District v. Bradley, 164 U. S. 112 507 Farmers’ &c. Bank ». Dearing, 91 U. S. 29 198 Farmers’ &c. Ins. Co. v. Dobney, 62 Neb. 213 304 Farrington v. Tennessee, 95 U. S. 679 75 Farrior v. New England Mort- gage Security Co., 88 Ala. 275 414 Fidelity & Deposit Co. ». L. Bucki &c. Lumber Co., 109 Fed. Rep. 393 ; 48 C. C. A. 436; 184 U. S. 698 135, 136 Finney ». Guy, 106 Wis. 256 336 First Nat. Bank of Allentown v. Hoch, 89 Penn. St. 324 425 First Nat. Bank of Charlotte'». Nat. Exchange Bank of Balti- more, 92 U. S. 122 424 Fisk, Ex parte, 113 U. S. 713 228 Fitts ». McGhee, 172 U. S. 516 217 Flint & Pere Marquette R. R. ». Detroit &c. R. R., 64 Mich. 350 388 Flying Scud, The, 6 Wall. 263 466 Fok Yung Yo ». United States, 185 U. S. 296 97, 98 rong Yue Ting ». United States, 149 U. S. 698 97, 100 * ox ”• Ohio, 5 How. 410 323 Frank and Willie, The, 45 Fed. Rep. 494 174 Frazer». Bigelow Carpet Co., 141 Mass. 126 467 French ». Barber Asphalt Pavinsr Co., 181 U. S. 324 507 PAGE Fresno Canal & Irrigation Co. ». Park, 129 Cal. 437 445 Fritts ». Palmer, 132 U. S. 282 415, 416 Gaines ». Thompson, 7 Wall. 347 55 Gans ». Ellison, 114 Fed. Rep. 734 83 Gardner ». Bonestell, 180 U. S. 362 122, 353 General Smith, The, 4 Wheat. 438 193, 194 Generes ». Campbell, 11 Wall. 193 232 Georgia R. R. & Banking Co. ». Smith, 128 U. S. 174 436 Gibson ». Chouteau, 8 Wall. 314 180 Gildersleeve ». New Mexico Min- ing Co., 161 U. S. 573 241 Gillis ». Stinchfield, 159 U. S. 658 508 Ginn ». New England Mortgage Security Co., 92 Ala. 135 414 Glen, The, Blatch. Pr. Cas. 375 466 Glenn ». Garth, 147 U. S. 360 125 Gluckstein ». Barnes, 1900, App. Cas. 240 265 Glynn ». Central R. R., 175 Mass. 510 471 Gonzales ». De Funiak Havana Tobacco Co., 41 Fla. 471 136 Gormley ». Bunyan, 138 U. S. 623 157 Grace Girdler, The, 6 Wall. 441 500 Grapeshot, The, 9 Wall. 129 193 Great Western Tel. Co.». Purdy, 162 U. S. 329 231 Green ». Mills, 69 Fed. Rep. 852 485, 486 Gregg ». Von Phul, 1 Wall. 274 270 Grinnell ». Railroad Co., 103 U. S. 739 113 Groff ». Miller, 30 Wash. Law Rep. 434 85 Gross ». United States Mortgage Co., 108 U. S. 477 180 Guaranty Savings Bank ». Bladow, 176 U. S. 448 351 Hagar ». Reclamation District, 111 U. S. 701 258 Hale ». Allinson, 188 U. S. 56 54, 338, 340, 341, 344, 345 Hall ». Costello, 48 N. H. 176 228 Hall ». De Cuir, 95 U. S. 485 197 Ham ». Boston, 142 Mass. 90 314 Hamblin ». Western Land Co., 147 U. S. 531 156 Hancock National Bank ». Far- num, 176 U. S. 640 345 Hanley ». Donoghue, 116 U. S. 1 128 Hans ». Louisiana, 134 U. S. 1 488 XX table of cases cited. PAGE Hansen v. Boyd, 161 U. S. 397 231 Hanson v. Davidson, 73 Minn. 454 344, 345 Hardee v. Wilson, 146 U. S. 179 85 Harden v. Gordon, 2 Mason, 541 172 Harkrader v. Wadley, 172 U. S. 148 217 Harper v. New Brig, Gilpin, 536 195 Harrington v. Glidden, 179 Mass. 486 255 Hart v. Stribling, 25 Fla. 435 136 Haseltine v. Bank, 183 U. S. 130 507, 508 Hawes v. Oakland, 104 U. S. 450 220 Hawkins v. Glenn, 131 IT. S. 319 246 Hawley v. Diller, 178 U. S. 476 351 352 Hayes v. United States, 170 U. S. 637 240 Hays v. United States, 175 U. S. 248 240 Hayward v. Leeson, 176 Mass. 310 265 Heckman v. Swett, 99 Cal. 303 406, 407 Hedley v. Pinkney &c. Steamship Co., 7 Asp. M. L. C. 135; 1894, App. Ca. 222 171, 175 Hernan v. Schulte, 166 Mo. 409 507 Henderson v. Smith, 28 L. D. 303 300 Hennen, Ex parte, 13 Pet. 230 315 Hensley v. Waner, 24 L. D. 92 300 Hewitt v. Schultz, 180 U. S. 139 110 Higgins v, Adams, 18 L. D. 598 299 Higgins v. Fidelity Trust Co., 108 Fed. Rep. 475 245 Hill, Ex parte, 38 Ala. 429 198 Hill v. Epley, 31 Pa. St. 331 271 Hitch v. United States, 66 Fed. Rep. 937 201 Holladay v. Frisbie, 15 Cal. 630 405 Holt v. Indiana Mfg. Co., 176 U. S. 68 485, 495, 496, 497, 502 Horne v. Hammond Co., 155 U. S. 393 77 Horner ». United States, No. 2, 143 U. S. 570 216 Houston ®. Moore, 5 Wheat. 1 323 . Howard r. Stillwell &c. Mfg. Co., 139 U. S. 199 142 Howarth v. Lombard, 175 Mass. 570 232 Hubbard v. Weare, 79 Iowa, 678 265 Hubbell v. Denison, 20 Wend. 181 195 Hume v. United States, 132 U. S. 406 54 Huntington v. Laidley, 176 U. S. 668 490 Hyman v. Read, 13 Cal. 445 405 PAGE Illinois Central R. R. v. Illinois, 146 U. S. 387 406 Insurance Co. v. Kirchoff, 160 U. S. 374 507 Insurance Co. v. Mettler, 185 U. S. 308 304,305 Insurance Co. v. Warren, 181 U. S. 73 304, 305 Interstate Commerce Comm. v. Baltimore &c. R. R., 145 U. S. 263 290 J. E. Rumbell, The, 148 U. S. 1 194 Jack v. Martin, 12 Wend. 311 198 Jacobs v. Boards of Supervisors, 100 Cal. 121 440 Janvrin, Petitioner, 174 Mass. 514 440 Jaquith v. Alden, 118 Fed. Rep. 270 79 Jenkins v. Neff, 186 U. S. 230 353 Johnson r. Drew, 171 U. S. 93 122 Johnson v. New York Life Ins. Co., 187 U. S. 491 126, 340 Johnson v. People, 83 Ill. 431 381 Jones v. Black, 48 Ala. 540 220 Jones v. Maffet, 5 S. & R. 523 228 Julia Fowler, The, 49 Fed. Rep. 277 174 Kalleck v. Deering, 161 Mass. 469 174 Kalorama, The, 10 Wall. 204 193 Kansas Pacific v. Atchison R. R., 112 U. S. 414 113 Kate, The, 56 Fed. Rep. 614 196 Kaukauna Co. v. Green Bay &c. Canal Co., 142 U. S. 254 387 Kentucky Railroad Tax Cases, 115 U. S. 321 259, 260 Key v. Roberts, 30 Wash. Law Rep. 436 85 Kimball v. Rosenham Co., 114 Fed. Rep. 85 83 King Portland, 184 U. S. 61 259 King Bridge Co. v. Otoe Co., 120 U. S. 226 500 Kingman v. Graham, 51 Wis. 232 271 Kirwan v. Murphy, 83 Fed. Rep. 275; 170 U. S. 205; 109 Fed. Rep. 354 39, 43 Kitselman v. Kokomo Fence Ma- chine Co., 108 Fed. Rep. 632 9, 12 Knights Templars’ &c. Indem- nity Co. v. Jarman, 187 U. S. 197 130 Knouff v. Thompson, 16 Pa. St. 357 . 271 Knowlton v. Supervisors, 9 Wis. 410 334 Knoxville v. Knoxville Water Co., 107 Tenn. 647 435 TABLE OF CASES CITED. xxi PAGE Knoxville Water Co. v. Knox- ville, 189 U. S. 434 443 Labuan, The, Blatch. Pr. Cas. 165 466 Lacon v. Higgins, 3 Starkie, 178 229 Laing ®. Rigney, 160 U. S. 531 127 Lake Front Case, 146 U. S. 387 406 Lamar r. Browne, 92 U. S. 187 465 Lancashire Ins. Co. v. Bush, 60 Neb. 116 303 Landes v. Perkins, 12 Mo. 238 240 Leddy v. Gibson, 11 Ct. Sess. Cases, 3d ser. 304 172 Leeds &c. Theatres, In re, 1902, 2 Ch. Div. 809 265 Lem Moon Sing v. United States, 158 U. S. 538 97, 98, 100 Lent v. Tillson, 140 U. S. 316 259 Lincoln v. Claflin, 7 Wall. 132 467 Lincoln v. Power, 151 U. S. 436 469 Litchfield ®. Register, 9 Wall. 575 54 Little v. Barreme, 2 Cr. 170 465 Little Rock &c. Ry. ®. Worthen, 120 U. S. 97 509 Lively, The, 1 Gall. 315 467 Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397 228 Livingston v. Maryland Ins. Co., 6 Cranch, 274 125 Lloyd v. Matthews, 155 U. S. 222 125, 126, 128 Loeb v. Trustees, 179 U. S. 472 74 Logan Co. Nat. Bank v. Towns- end, 139 U. S. 67 424 Lola, The, 175 U. S. 677 464 Lottawanna, The, 21 Wall. 558 _ . . 169, 194 Louisville &c. Ry. v. Mississippi, 133 U. S. 587 198 Lowther Castle, The, 1 Hagg. Adm. 384 171 Lynch v. Clarke, 1 Sand. Ch. t 58L 198 Lyndhurst, The, 48 Fed. Rep. 839 194, i9ß Lyon v. Gombert, 63 Neb. 630 ’ 508 McAllister v. United States, 141 U. S. 174 . gig McClung r. Penny, 11 Okla. 447 144 McCormick v. Market Bank, 165 U. S. 538 424 McCormick v. Sullivant, • 10 Wheat. 192 465 McCulloch v. Maryland, 4 Wheat. 016 jgg Macdonald v. Morrill, 154 Mass. McKeon v. New York, New Ha- ven &c. R. R_, 53 Atl. Rep. 656 509 PAGE Mackin v. Boston &c. R. R., 135 Mass. 201 471 McMullen v. United States, 146 U. S. 360 203, 206 McNiel v. Holbrook, 12 Pet. 84 228 Madison . 120 Smith ». McKay, 161 U. S. 355 Ryan ». Bindley, 1 Wall. 66 228 486, 489 yan ». Railroad Co., 99 U. S. Smith ». Mississippi, 162 U. S. qQ„ „ „ 112, 452 592 428 Rpn QRir°’’In re’ 9 Am’ Bank- Smith ». Morse, 2 Cal. 524 405 St taL’J k a. t> « Smith ». Steamer Eastern Rail- TT 4 rJo&C’ R‘ R* ”• Steele’ 167 road, 1 Curtis, 253 195 St t öy I5? Smith ». Strother, 68 Cal. 194 440 St* • T,he’ 1 Black, 522 194 Smith ». Townsend, 148 U. S. 490 181 TT (taSÄJ>ght Co- Sk Pau1’ 153, 296, 297, 298 St Pmii » ttt. 217 South Carolina ». Seymour, 153 119 TT Winona K- U. S. 353 508 San nuL. in „ H2 Southern Pacific Co. ». Denton, X? TJlu?e Co- Souther, 146 U. S. 202 78 706-eii9wP^1^ ’104 BeP’ Southern Pacific R. R. ». Moore, 706; 112 Fed. Rep. 228 445 11 L. D. 534 452 xxiv TABLE OF CASES CITED. PAGE PAGE Southern Pacific R. R. v. United States, 109 Fed. Rep. 913 448 Southern Pacific R. R. v. United States, 168 U. S. 1 452 Southern Pacific R. R. v. United States, 183 U. S. 519 450 Southwick v. Clyde, 6 Blackf. 148 195 Spring Valley Water Works v. San Francisco, 82 Cal. 286 440 Spring Valley Water Works v. Schottler, 110 U. S. 347 440 Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551 218 Squire v. 100 Tons of Iron, 2 Ben. 21 195 State eaj rel. Curry v. Wright, 5 Heisk. 612 69 State v. Bank, 95 Tenn. 221 75 State v. Brownfield, 60 S. C. 509 427 State v. Campbell, 8 Lea, 74 68 State v. Clarke, 25 N. J. Law, 54 205 State v. Hawkins, 44 O. St. 98 314 State v. Hunter, 94 N. C. 829 206 State v. Lewis, 113 N. C. 622 206 State v. Lindsey, 103 Tenn. 625 70 State v. McConnell, 3 Lea, 332 70 State v. Maloney, 92 Tenn. 62 70 State v. Manuel, 4 Dev. & Bat. 20 34 State v. Pike, 15 N. H. 83 198 Straker v. Hartland, 2 Hem. & Mil. 570 467 Streitwolf v. Streitwolf, 181 U. S. 179 507 Stuart v. Easton, 156 U. S. 46 34 Stuart v. Hayden, 169 U. S. 1 246 Sturges v. Crowninshield, 4 ' Wheat. 122 197 Sullivan v. Davis, 29 Kan. 28 271 Sullivan v. Sullivan Timber Co., 103 Ala. 371 414 Sulphine v. Dunbar, 55 Miss. 255 271 Sumner v. Seaton, 47 N. J. Eq. 103 271 Supervisors of Schuyler Co. v. People ex rel. R. I. &c. R. R., 25 Ill. 181 382 Swafford v. Templeton, 185 U. S. 487 485, 492, 498 Sweringen v. St. Louis, 185 U. S. 38 431 Sybil, The, Blatch. Pr. Cas. 615 466 Sylph, The, L. R. 2 Ad. & Ec. 24 176 Talbot v. Seeman, 1 Cranch, 1 125 Tarpey ». Madsen, 178 U. S. 215 114 Taylor v. Underhill, 40 Cal. 473 406 Telluride Power Transmission Co. v. Rio Grande Western Ry., 187 U. S. 569 311 Tennessee v. Condon, 189 U. S. 64 441 Texas &c. Ry. v. Archibald, 170 U. S. 665 470 Texas &c. Ry. ». Behymer, 112 Fed. Rep. 35 469 Texas &c. Ry. v. Carlin, 111 Fed. Rep. 777 354 Texas Pacific R. R. & Southern Pacific R. R., 4 L. D. 215 451 Theta, The, 1894, P. D. 280 177 Thomas v. Gay, 169 U. S. 264 329, 333 Thompson v. St. Nicholas Nat. Bank, 146 U. S. 240 426 Thornton v. United States, 27 C. Cl. 342 472 Tipton v. Maloney, 23 L. D. 186 300 Titan, The, 23 Fed. Rep. 413 174 Townsend v. Little, 109 U. S. 504 205 Travel Pay, In re, 5 Dec. Comp. Treas. 113 472 Tremaine r. Hitchcock, 23 Wall. 518 78 Tucker v. McKay, 164 U. S. 701 489 Tullock v. Mulvane, 184 U. S. 497 137 Turner ». Bank of North Amer- ica, 4 Dall. 8 501 Turpin v. Lemon, 187 U. S. 51 220, 259 Twycross v. Grant, 2 C. P. D. 469 444 Tyler v. Court of Registration, 179 U. S. 405 220 Uhla, The, L. R. 2 Ad. & Ec. 29 176 Union &c. Bank v. Memphis, 111 Fed. Rep. 561 73, 76 Union Steamboat Co., Ex parte, 178 U. S. 317 364, 366 United States v. Beebe, 127 U. S. 338 104 United States v. Budd, 144 U. S. 154 350 United States v. Colton Marble & Lime Co., 146 U. S. 615 181, 449 United States v. Delespine, 15 Pet. 319 _ 238 United States ». Finnell, 185 U. S. 236 203, 473 United States v. Johnson, 124 U. S. 236 473 United States v. Jones, 134 U. S. 483 205 United States v. Lynch, 137U. S. 280 508 United States ». Martinez, 184 U. S. 441 241 United States». Miranda, 16 Pet. 5 153 238 TABLE OF CASES CITED. xxv PAGE PAGE United States v. Moore, 12 How. Weber v. Commissioners, 18 209 241 Wall. 57 404 United States v. Missouri &c. Webster v. Upton, 91 U. S. 65 232 Ry., 141 U. S. 360 104 Weckler v. First Nat. Bank of United States ®. Missouri Pacific Hagerstown, 42 Md. 581 425 Ry., 65 Fed. Rep. 903 275 Welch v. Butler, 21 L. D. 369 153 United States v. Oregon &c. R. Wellington, In re, 16 Pick. 87 220 R., 164 U. S. 526 239 Wheeler v. Miller, 16 Cal. 125 406 United States v. Oregon &c. R. Wheeler®. New York &c. ,R. R., R. , 176 U. S. 28 105 178 U. S. 321 509 United States v. Patrick, 73 Fed. Whitaker, The, 1 Sprague, 282 195 Rep. 800 231 Whiteside v. Brawley, 152 Mass. United States ®. Pendell, 185 133 425 U. S. 189 239 Whiteside v. United States, 93 United States v. Pitman, 147 U. U. S. 247 54 S. 669 203 Whiting v. Price, 172 Mass. 240 444 United States v. Ring, 3 How. Whitman v. Oxford National 773 238 Bank, 176 U. S. 559 345 United States®. San Jacinto Tin Whitmeyer, In re, 3 Dec. Co., 125 U. S. 273 104 Comp. Treas. 397 472 United States®. Southern Pacific Whitney ®. Spratt, 25 Wash. 62 347 R. R., 94 Fed. Rep. 427 448 Wiggins ®. United States, 3 C. Cl. United States ®. Southern Pacific 412 465 R. R., 146 U. S. 570 180, 450, 451 Wiley ®. Sinkler, 179 U. S. 58 United States ®. Thornton, 160 485, 491, 492, 498 U. S. 654 472 Willard’s Appeal, 4 R. I. 597 314 United States ®. Wong Kim Ark, Williams ®. Norris, 12 Wheat. 117 180 169 U. S. 649 34 Williamson ®. Eastern Building United States ®. Yamasaka, 100 & Loan Assn., 62 S. C. 390 123 Fed. Rep. 404 99 Williamson Co. ®. Perkins, 39 S. Upton ®. Tribilcock, 91 U. S. 45 232 W. Rep. 347 70 Vance v. Campbell, 1 Black, 427 228 Wilson ®. North Carolina, 169 U. Vera Cruz, The, 9 P. D. 96 177 S. 586 157 Viele®. Judson, 82 N. Y. 32 272 Winebrenner ®. Forney, 11 Okla. Villalobos ®. United States, 10 565 148 How. 541 238 Wisconsin R. R. ®. Price Co., 133 Vought ®. Eastern Building & U. S. 496 113 Loan Assn., 172 N. Y. 508 128 Wiser v. Lawler, 62Pac. Rep. 695 261 Wabash Ry. ®. McDaniels, 107 Wiswall ®. Sampson, 14 How. 52 433 U. S. 454 470 Wittich ®. O’Neal, 22 Fla. 592 137 Wagoner ®. Evans, 170 U. S. 588 332 Wong Wing ®. United States, 163 Walker ®. United States, 4 Wall. U. S. 228 97 „ 163 499 Yarbrough, Ex parte, 110 U. S. Walworth ®. Kneeland, 15 How. 651 491 348 424 Zane ®. Hamilton Co., 104 Fed. Weber, In re, 3 Dec. Comp. Rep. 63 380 Treas. 640 472 TABLE OF STATUTES CITED IN OPINIONS. (A) Statutes of the United States. PAGE 1799, Mar. 3, 1 Stat. 755, c. 48 473 1802, Mar. 16, 2 Stat. 137, c. 9 473 1808, Apr. 12, 2 Stat. 483, c. 43 473 1812, Jan. 11, 2 Stat. 674, c. 14 473 1813, Jan. 29, 2 Stat. 796, c. 16 473 1815, Mar. 3, 3 Stat. 225, c. 79 473 1854, July 22, 10 Stat. 308, c. 103 241 1861, July 22, 12 Stat. 269, c. 9 473 1861, July 29, 12 Stat. 280, c. 24 473 1864, Feb. 13, 13 Stat. 575, c. 10 466 1864, June 20, 13 Stat. 145, c. 145 473 1864, July 1, 13 Stat. 333, c. 194 407 1864, July 2, 13 Stat. 365, c. 217 110, 111 1866, July 13, 14 Stat. 92, c. 176 315 1866, July 25, 14 Stat. 239, c. 242 105, 106, 107, 108, 109, 111, 112, 115, 117 1866, July 26, 14 Stat. 251, c. 262 3. 4, 5, 183 1866, July 26, 14 Stat. 292, c. 278 180 1866, July 27, 14 Stat. 292, c. 278 178, 449, 450 1870, May 4, 16 Stat. 94, c. 69 117 1870, July 7, 16 Stat. 649, c. 219 466 1870, July 7, 16 Stat. 649, c. 220 466 1870, July 8, 16 Stat. 650, c. 231 466 1870, July 8, 16 Stat. 650, c. 232 466 1870, July 8, 16 Stat. 651, c. 234 466 1871, Mar. 3, 16 Stat. 573, c. 122 178, 180, 448 1871, Apr. 20, 17 Stat. 13, c. 22 495 1872, May 10, 17 Stat. 91, c. 152 4, 5 1875, Feb. 22, 18 Stat. 333, c. 95 201, 205 187a, Mar. 3, 18 Stat. 470, c. 137 495 1876, June 30, 19 Stat. 64, c. 156 250 1877, Feb. 27, 19 Stat. 243, c. 69 472 1878, June 3, 20 Stat. 89, c. 151 347, 348, 350, 352, 353 PAGE 1880, May 14, 21 Stat. 140, c. 89 111, 115 1881, Mar. 3, 21 Stat. 502, c. 138 33 1885, Feb. 28, 23 Stat. 337, c. 265 451 1885, Mar. 3, 23 Stat. 443, c. 355 508 1886, July 6, 24 Stat. 123, c. 637 180 1886, July 30, 24 Stat. 170, c. 818 328, 335 1887, Feb. 4, 24 Stat. 379, c. 104 275 1887, Feb. 23, 24 Stat. 414, c. 220 94 1887, Mar. 3, 24 Stat. 552, c. 373 494,495, 503 1887, Mar. 3, 24 Stat. 556, c. 376 103, 104, 179, 182, 184 1888, Aug. 1, 25 Stat. 357, c. 729 131 1888, Aug. 13, 25 Stat. 433, c. 866 34, 485, 494, 495, 496, 497, 503 1888, Oct. 19, 25 Stat. 566, c. 1210 94 99 1889, Mar. 1, 25 Stat. 757, c. 317 297 1889, Mar. 2, 25 Stat. 855, c. 382 291 1889, Mar. 2, 25 Stat. 980, c. 412 297, 298 1890, May 2, 26 Stat. 81, c. 182 203, 326, 328, 329, 335 1890, June 10, 26 Stat. 131, c. 407 312, 313 1891, Mar. 3, 26 Stat. 826, c. 517 33, 34, 73, 192, 485, 486, 489, 497, 503 1891, Mar. 3, 26 Stat. 854, c. 539 240 1891, Mar. 3, 26 Stat. 1084, c. 551 87, 94, 95, 96, 99 1893, Feb. 9, 27 Stat. 434, c. 74 508 1893, Mar. 3, 27 Stat. 612, c. 209 149, 152 1894, Aug. 18, 28 Stat. 372, c. 301 96, 201, 204 1896, Mar. 16, 29 Stat. 63, c. 59 473 1898, July 1, 30 Stat. 544, c. 541 80 xxvii xxviii TABLE OF STATUTES CITED. PAGE PAGE 1900, June 7, 31 Stat. 708, c. 860 473, 474 1901, Feb. 8, 31 Stat. 762, c. 342 473 1901, Mar. 3, 31 Stat. 1189, c. 854 85, 508 1902, June 30, 32 Stat. 520, c. 1329 85 1903, Feb. 19, 32 Stat. 847, c. 708 283, 284 Revised Statutes. § 629....321, 324, 484, 494, 495, 497, 503 § 709..............179, 303,309 § 711...................321, 324 § 721................... 228 § 828...................131, 133 § 829........... 201,202,204 § 905.................... 75 § 954.................... 77 § 1289................... 472 Revised Statutes (cont.). § 1290.................. 474 § 1979....484, 485, 486, 487, 494, 496, 497, 503 §§ 2395-2397................ 52 § 3392......... 320, 321, 323, 324 § 4618.................... 465 § 4630................. 465 § 5143 ................... 244 § 5151.................243, 246 § 5205 ................... 250 § 5234 .................. 246 § 5328.................324, 325 § 5484.............321, 323, 324 District of Columbia. Code of 1901, § 82............. 85 § 226................... 85 §§ 233,234............... 85 (B.) Statutes of the States and Territories. Alabama. Code of 1896, § 1316........ 409 § 1318.................... 409 § 1319.................... 410 California. 1851, Mar. 26, Laws of 1851, p. 307, c. 41............. 405 1870, Apr. 4, Laws of 1869- 1870, p. 801, c. 536 ..... 404 1885, Mar. 12, Laws of 1885, p. 95, c. 115............. 439 1897, Mar. 2, Laws of 1897, p. 49, c. 54 ............. 445 Code Civ. Proc. § 738....... 180 Penai Code, §§ 518, 519..... 322 Florida. Mississippi. Code of 1892, § 3317 ...... 421 § 3387................... 421 Nebraska. 1899, Mar. 22, Laws of 1899, p. 260, c. 48.......... 302 Comp. Stat. c. 43, §§ 43-45.. 302 Oklahoma. McClellan’s Dig. p. 345, § 21 136 Illinois. 1869, Mar. 10, 3 Priv. Laws 1895, Mar. 5, Laws of 1895, p. 215.. .326, 327, 328, 329, 330, 332, 333 1897, Mar. 12, Laws of 1897, p. 124....................... 332 1899, Mar. 10, Laws of 1899, p. 218.. .327, 328, 329, 330, 331, 332, 335 Rev. Stat, of 1893, § 1562... 144 § 4805....................... 144 Tennessee. of 1869, p. 238........380, 382 1869, Apr. 16, Pub. Laws of 1869, p. 316.............. 380 Michigan. 1891, June 24, Pub. Laws of 1891, p. 197, No. 156.. .368, 369 1893, May 31, Pub. Laws of 1893, p. 270, No. 171..385, 386 1899, May 25, Pub. Laws of 1899, p. 323, No. 207..... 369 Comp. Laws of 1897, § 4865 368, 369, 370 Rev. Stat, of 1838, tit. 7, c. 6 368, 369, 370 Minnesota. Gen. Stat, of 1878, §§ 5905- 1877, Mar. 27, Laws of 1877, p. 127, c. 104............. 1901, Feb. 8, Laws of 1901, p. 10, c. 8...65, 66, 67, 68, 70 Shannon’s Code of 1896, 1154.......... 5165..... 5167-5169 5175 5176 5180 435 5907..................... 338 § 5911.;................. 338 §§ § §§ § 70 68 68 68 68, 69 68, 69 1897, Gen. Laws of 1897, Sp. Sess. p. 14, c. 6.......... 470 Sayles’ Civ. Stat, of 1897, art. 4560/............... 470 art. 4560(7.............359, 360 art. 4560ft,................35y TABLE OF STATUTES CITED. xxix PAGE Washington. Ballinger’s Code, §§ 5953, 5954...................... 193 PAGE Wisconsin. Rev. Stat, of 1898, § 3348... 175 (C.) Foreign Statutes. Argentine Republic. Code, art. 1174........... 170 Belgium. Code, art. 262............ 170 Brazil. Code, art. 560........... 170 Chili. Code, art. 944............ 170 France. Commercial Code, art. 191.. 170 art. 262.................. 169 art. 263................ 170 Marine Ordinances of Louis XIV, Bk. 3, tit. 4, art. 11 169 Oleron, Laws of, art. 6... 169 Germany. Code, arts. 548, 549...... 170 Great Britain. 1854,17 & 18 Viet. c. 104.... 170 Great Britain (coni.). 1861, 24 Viet. o. 10...... 171, 176 1862, 25 & 26 Viet. c. 89.... 229 1876, 39 & 40 Viet. c. 80 171, 175 Hanse Towns. Laws, art. 39............. 169 Holland. Code, arts. 423, 424...... 170 Italy. Code, art. 363............ 170 Portugal. Code, art. 1469........... 170 Spain. Code, arts. 718, 719...... 170 Partidas, vol. 1, p. 365, No. 50 239 Sweden. Wisbuy, Laws of, art. 18.... 169 & CASES ADJUDGED^ ¿7 IN THE -*\r* Cy 4^ SUPREME COURT OF THE^ITH) which cites with approval United States v. Rhodes, U. S. 28, in which it is said “ all persons born in the a giance of the King are natural born subjects and all perso born in the allegiance of the United States are natura HENNESSY v. RICHARDSON DRUG CO. 27 189 U. S. Argument for Appellants. citizens.” Also citing State v. 4 Dev. & Bat. 20, 24, 26: “ The term citizen in our law is precisely analagous to the term subject in the common law and the change of phraseology has entirely resulted from the change of government. The sovereignty has been transposed from one man to the collective body of the people and a subject of the King is now a citizen the State.” Judge McPherson interprets the words “ citizens or subjects ” as if they read “ citizens and subjects.” While it is true that sometimes the word “ or ” may be changed to “ and ” in interpreting a statute, this is only so where the word a and ” as used would lead to absurd results and would be clearly contrary to the intention of the legislature. Endlich on Statutes, sec. 305. In this case no such necessity exists, as the meaning of the statute is perfectly clear and we venture to say has never before, as to this point, been doubted. II. If it is held by this court that the allegation of the citizenship of complainants was sufficient, it is clear that the burden of proving such allegation to be untrue is on the defendant. This is so even if the objection to the jurisdiction has been properly taken by the defendant. Adams v. Shirk, 117 Fed. Rep. 801, and cases cited. In the case at bar there was no plea to the jurisdiction or pleam abatement, nor was the objection to the jurisdiction raised in the answer. No evidence contradicting the allegation as to the citizenship of appellants was introduced by defendants. The court acted on its own motion. In order to justify is action it must appear from the record that the suit did not involve a controversy of which the court could properly take cogniZance. Act of March 3, 1875, 18 Stat. 472; Morris v. 129 U. S. 315 ; Anderson v. Watt, 138 U. S. 694. th« f°nly in this record bearing on the subject is p a ^en aPPe^ants (page 11) that they reside in to L ’ + ¿ance- Even if the burden were on the complainants nrnnf Vf e. correctness of that allegation as to their citizenship, cient ° residence in France would be prima facie suffi- L SMUm v' * 6 How. 163; Express Company v. 28 OCTOBER TERM, 1902. Argument for Appellants. 189 U. S. Kountze Bros., 8 Wall. 342; Collins v. City of Ashland, 112 Fed. Rep. 175. III. The court erred in assuming to pass on the merits after it had determined the question that it had no jurisdiction and its attempt to do so must be treated as a mere nullity. While we disclaim any intention to argue the merits of this case before this court, we wish to say that it is difficult to see how the court below could have come to any other conclusion but that complainants were entitled to at least an injunction where it finds that the complainants have proved their trade mark beyond question ; and that the defendants have sold goods bearing counterfeit labels, even if such sales were made in good faith. Saxlehner v. Siegel Cooper Co., 179 U. S. 42. In the amended decree the court, while dismissing the bill for lack of the necessary jurisdictional allegations, “ further ” dismisses it on the merits. And in the certificate, while certifying that it has passed on the question of jurisdiction, it states that the merits have also been passed upon. The court had no power both on general principles and in virtue of the express provisions of the statute from which it derives its jurisdiction, to pass on the merits after it had decided that it had no jurisdiction. Its attempt to do so must be treated as an absolute nullity. Taylor v. Mutual Reserve Fund Lif'e Association, 97 Virginia, 60 ; Howa/rd v. Kentucky de Louisville Mutual Ins. Co., 52 Kentucky, 282; Stough v. C. & N. W. R. R- Co., 71 Iowa, 641; Gray v. Dean, 136 Massachusetts, 128 ; Wheeler & Wilson Mfg. Co. v. Whitcomb, 62 New Hampshire, 411. This court has consistently followed the principle here contended for. Minnesota v. Ditchcock, 185 U. S. 373; Mete j v. City of Watertown, 128 U. S. 586. It has repeatedly reversed the decrees of the lower cour dismissing bills upon the merits in cases where such court a no jurisdiction and has directed that the bill should e is missed without prejudice. Barney v. Baltimore City, 6 a • 280 ; Kendig v. Deam, 97 U. S. 423; Parker v. Ormsby,,14 U. S. 81, 83; Lake County Commissioners v. Dudley, 173 • 243. The provision of the statute in virtue of which the court HENNESSY v. RICHARDSON DRUG CO. 29 189 U. S. Argument for Appellants. low acted fully recognizes this principle. The question of the jurisdiction was not raised by the defendants and the sufficiency of the jurisdictional allegations was riot challenged by them. The court acted of its own motion. The statute giving it such power expressly says that if in “ any suit commenced in the Circuit Court ... it shall appear to the satisfaction of said Circuit Court at any time after such suit has been brought or removed thereto that such suit does not really and substantially involve the dispute or controversy properly within the jurisdiction of said Circuit Court ... the said Circuit Court shall proceed no further hut shall dismiss the suit.” Act of March 3, 1875, chap. 137, sec. 5. This provision has by numerous adjudications by this court been held a salutary one and that it is the duty of the Circuit Court to exercise their power under it in proper cases. Williams v. Nottawa, 104 U. S. 209 ; Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282. It has further been held that the action of the Circuit Court is reviewable by this court under the act of March 3, 1891, chap. 517, sec. 5. Wetmore v. Rymer, 169 U. S. 115; Huntington v. Laidley, 176 U. S. 668; United States v. John, 155 U. S. 109. Nor can any life be injected into such attempted finding on the merits by the decision of this court that the court below had jurisdiction. The purpose of the statute, as we argued, is that the question of jurisdiction, if its existence is denied by t e court below, should be settled before the merits are touched. The complainants, when they appealed on the jurisdictional question to this court, as was their duty and right, could not, even if they had wished to, have appealed to the Circuit Court ppeals on the merits, because the statute does not permit 661 V°TkPPealS in the same case- McLish v- Roff, 141 u. S. had a right to treat such decision as a nullity. If any e e°t were given to it because t'he court below improperly follied atSKWn jurisdiction’ would follow that although they hv fiT i t e onty course °Pen to them, they might be deprived hlvn llaPiSe -°f tlme °f the right Siven to them by statute to of A 6 ^eC1S1On 011 the reviewed by the Circuit Court 30 OCTOBER TERM, 1902. Argument for Appellants. 189 U. S. IV. On the point suggested on the argument, whether it was sufficient to allege that the value of the trade mark sought to be protected exceeded $2000, or whether there should have been an allegation that the amount of the damage done by the acts of the defendants exceeded that sum, the following cases and text writers sustain the contention of the appellants, and pass upon this exact point. Symonds v. Greene, 28 Fed. Rep. 834; Hennessy v. Herrman, 89 Fed. Rep. 669; Foster on Federal Practice, § 16, p. 51. See also Hopkins on Unfair Trade, p. 216. While this court is not bound by any of these decisions, it is submitted that they are based on correct principles and are supported by the decisions of this court. They are merely an application of the general rule, approved by this court, that in an action for an injunction jurisdiction is determined by the value of the right to be protected and by the values of the object to be gained. Mississippi & Missouri R. R. Co. v. Ward, 2 Black, 485 ; Market Co. v. Hoffmann, 101 U. S. 112. See also Humes v. City off Ft. Smith, 93 Fed. Rep. 862; Delaware (& Lackawanna R. R. Co. v. Frank, 110 Fed. Rep. 689. It appears from the pleadings in this case that the right to the trade mark itself was put in issue by the defendants, and that the right of the complainants to enjoy and protect their trade mark, if they have any—without which it would be valueless—is challenged by charging them with the most atrocious frauds. It is clear, therefore, that the matter in dispute, the value o which determines the jurisdiction of the court, is the trade mark itself and the right to its enjoyment. Even, therefore, if, in a case such as was suggested on the argument, where only one bottle was sold, there might be some doubt whether an allegation that the trade mark was worth more than $20 would be sufficient, if, on the coming in of the answer, it appeared that there was no denial of the right of complainants their trade mark, but that the only question to be litigate was whether or not defendant had made such sale, such dou t can not exist in this case, where the defendant challenges t e rig of complainants to their trade mark and their right to enjoy HENNESSY v. RICHARDSON DRUG CO. 31 189 U. S. Argument for Appellee. and protect it, without which it would be valueless, where the protection of such right is the object of the suit and where the injury and damage to complainants, were the contention of defendants to prevail, would be the loss of such trade mark, the value of which is alleged to exceed $2000. Mr. Charles F. Tuttle for appellee. The certificate contains matters other than questions of jurisdiction. The so-called certificate does not contain a single, definite, clear, specific question of jurisdiction. It is so broad as to require a search of the record by this court to ascertain what particular question of jurisdiction was involved. This court will not make such a search, nor follow counsel in such a search. If this court will make such a search no particular, specific and definite question of jurisdiction will be found. No mere suggestion that the jurisdiction of the court was in issue will answer. Proceedings to this court were here dismissed for lack of a proper presentation of a single, precise, specific question of jurisdiction in the following cases and they are favorably decisive of all the above contentions: Maynard v. Hecht, 151 IT. S. 324; Moran v. Hagerman, 151 U. S. 329 ; In re Lehigh Co., 6 . S. 322 , Sheilds v. Colman, 157 IT. S. 168 ; Interior Con- V* ^bney, U- S- 5 Va/n Wagenen v. SewaTl, too U. S. 369 ; Chappell n. United States, 160 U.S. 499; Davis 668 676 162 8* 290 ’ H^ti/ngton N' Laidley, 176 IT. S. The first point made in the brief of appellants is that « the urcint Court erred in holding that the jurisdictional facts as If6 C0,mpainants’ citizenship were not properly alleged.” HAni jU,C questi°n arose on the trial it is not properly presented m this court. r J r thit°JVeVeri a searcfi the record be made, it will be found thp h ° SUC *|Ues^on was the real and substantial ground of considered^ assignment for that reason should not be If, however, the assignment be considered it may be observed 32 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. that the jurisdictional facts as to the alienage of complainants and their alleged partnership are not properly pleaded. Stuart v. Easton, 156 U. S. 46 The second point made in the brief of appellants that “ the court erred in holding that it was incumbent upon the complainants to prove the allegation of citizenship,” like the first point, is not properly presented for determination by this court. It does not appear that the point was of controlling force in the trial court and should not be considered. But if considered it will be found untenable, for the reason that, under the Code of Nebraska, the answer takes the place of all pleas, whether general or special, in abatement or to the merits and the general denial of appellee’s answer put in issue appellants’ jurisdictional averments. Roberts v. Lewis, 144 U. S. 653. The third assignment of error in appellants’ brief that the court erred in passing upon the merits of the case is not within the field of this appeal. It does not involve any question touching the jurisdiction of the Circuit Court. The assignment is one not contemplated by the act granting the right of appeal from Circuit Courts direct to this court. The evidence before the trial court is not preserved in proper form and is not before this court in any form. The errors, if any, were without prejudice. The decree rests upon an independent ground, broad enough to maintain it, in which no question of jurisdiction was in vol v The decree is grounded upon the merits of the cause. e evidence is not before this court. The opinion not being properly authenticated is no part of the record. No complaint is made that on the evidence the bill should not have been is missed. The merits of the controversy appearing to have been fully heard and determined against the appellants the decree therefore rests upon questions of fact and principles of law in dependent of and not involving a determination of jurisdictional questions. Mr. Chief Justice Fuller delivered the opinion of the court. This was a bill alleging that complainants were “all of Cog- HENNESSY v. RICHARDSON DRUG CO. 33 189 U. S. Opinion of the Court. nac in France, and citizens , of the Republic of France,” and that defendant was a citizen of Nebraska, and a resident of the judicial district thereof ; that complainants owned and employed a certain trade mark for Hennessy brandy, (which they produced, bottled and sold,) of a value exceeding two thousand dollars, which trade mark had been properly registered in the Patent Office under the act of-Congress of March 3, 1881; and that defendant was selling an imitation “ Hennessy brandy,” using facsimiles of complainants’ trade name, devices and labels. Injunction, profits, and damages were prayed for. The case was brought to issue, heard on pleadings and proofs, and dismissed, it being held that the court had no jurisdiction because “complainants’ citizenship or alienage is not alleged, as required; ” and also that the case was with defendant on the merits. The decree stated among other things : “ And the court finds that neither the bill, nor the bill as amended nor the evidence shows the citizenship of complainants, or any of them so as to confer jurisdiction upon this court. And the court further finds with and for the defendants and against the complainants on the evidence, and that the bill as amended is without equity. And for both and all reasons hereinbefore recited,” the bill was dismissed. The court then granted a certificate in these words: “It is certified that the question of jurisdiction referred to in the opinion was passed upon—but that the case was also determine upon its merits. The question of jurisdiction set forth m the opinion filed herein together with the question of the ’nents of the case is hereby certified to the Supreme Court, all ot which are shown by the decree and the opinion.” of tR1 a?Peal was ^ken directly to this court under the first Be classes of cases enumerated in section five of the judici-^arck a»d we are shut up to the considera-stand°tk f Question of jurisdiction alone. We do not under-l • a i.e amount in controversy was treated below as Maroh oC!)earing. *n resPect of that question. The act of amnnni ’• ’ Prov^es f°r jurisdiction “ without regard to the in controversy,” and the averment here was that the vob. cixxxix—3 34 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. value of the trade mark exceeded two thousand dollars. The point, however, was not relied on, and we confine ourselves to the question of jurisdiction as dependent on citizenship. By the Constitution, the judicial power of the United States extends to controversies between citizens of a State, “ and foreign States, citizens or subjects.” And by statute, Circuit Courts of the United States have original cognizance of all suitsofa civil nature, at common law or in equity, in which there is “ a controversy between citizens of a State and foreign States, citizens, or subjects.” 25 Stat. 433, c. 866. In Stua/rt v. Easton, 156 U. S. 46, it was held that by the description of plaintiff as “ a citizen of London, England,” the fact that he was a subject of the British Crown was not made affirmatively to appear as required; but, in the case at bar, complainants described themselves as “ all of Cognac in France, and citizens of the Republic of France,” and this was sufficient. No averment of alienage was necessary. It is true that by section 6 of the judiciary act of March 3, 1891, the judgments and decrees of the Circuit Courts of Appeals were made final in cases, among others, in which the jurisdiction was dependent entirely on the opposite parties to the suit or controversy being citizens of different States, or “ aliens and citizens of the United States.” But the word “aliens” as there used embraces subjects or citizens of foreign countries, and not merely persons resident in this country, who owe allegiance to another. An the language of the Constitution and of the act determining the jurisdiction of the Circuit Courts is explicit. In Chisholm n. Georgia, 2 Dallas, 419, 456, Mr. Justice Wilson said that under the Constitution of the United States t ere are citizens, but no subjects. ‘ Citizens of the United States. ‘Citizens of another State.’ ‘Citizens of different States. State or citizen thereof.’ The term, subject, occurs, in e , once in the instrument; but to mark the contrast strong y, e epithet ‘ foreign ’ is prefixed.” The Supreme Court of North Carolina in State n. ManMb, Dev. & Bat. 20, 26, (quoted in United States v. Wong Kvm Ar , 169 U. S. 649,) said: “ The term ‘ citizen,’ as understood in our law, is precisely analogous to the term ‘ subject in the commo KIR WAN v. MURPHY. 35 189 U. S. Syllabus. law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a ‘ subject of the King ’ is now ‘ a citizen of the State.’ ” In that view the people of France are properly described as citizens of that Republic. As complainants were citizens of a foreign State and defendant was a citizen of Nebraska, as affirmatively appeared from the pleadings, no issue of fact arising in that regard, the Circuit Court had jurisdiction. Decree reversed and cause remanded for rehearing on the merits. Hennessy v. Moise, No. 204. Hennessy v. May, No. 205. Mr. Chief Justice Fuller. These cases must take the same course as that just decided, and the same decrees will be entered. KIRWAN v. MURPHY. appeal from the circuit court of appeals for the eighth CIRCUIT. No. 161. Argued January 30,1903.—Decided April 6,1903. EVaenn/ m^kinF °f a S°vernment survey, which could be made without so f,m^.ena ’n^ury to sod or timber, involved a trespass, it would be of a “gl .1Ve and temPorary a character as to lack such elements of irrep-will a kn WOtdd furnish the basis for equity interposition. Nor pevgonJd ° ^eaCe he Where the legal remedy is adequate, and where the assert ra UeC+ y ,1“terested are n°t made parties, are not numerous, and assert separate rights. ThsmweTin th? °f PU?HC landS iS VeSted in the Land department, and subordinate ffi regard CannOt be divested by the fraudulent action of a Ute. The on eCer OUtside of bis authority and in violation of the stat-so is in the noUt/58?^^61 correct nor make surveys. The power to do partinent must ° 1 departraent of the government, and the Land De-ust primarily determine what are public lands subject to sur- 36 189 U. S. OCTOBER TERM, 1902. Statement of the Case. vey and to disposal, and as it is possessed of this power in general, its exercise of jurisdiction cannot be questioned by the courts before it has taken final action. A bill in equity cannot be maintained to enjoin the officers of the Land Department from surveying land which years before had been omitted from an alleged survey, the complainants having purchased lands under such alleged survey, which did not include that in question. The remedy for any infringement of complainant’s rights is at law after the administrative action of the government has been concluded. Murphy and others filed their bill of complaint in the United States Circuit Court for the District of Minnesota against Kir-wan, as United States surveyor general for that district, and Thomas H. Croswell, as deputy surveyor, to enjoin them from surveying, by direction of the Commissioner of the General Land Office, certain lands claimed by the Land Department to be unsurveyed public lands of the United States. Complainants alleged that they owned lots 1, 2 and 3 of section 2; lots 1 and 2 of section 3; lots 1 and 8 and parts of lots 6 and 7 of section 4; and certain described parts of sections 9, 10 and 11, in township 57 north, range 17 west, fourth principal meridian, Minnesota, deriving title thereto through mesne conveyances and patents from the government; that the land was surveyed by Henry S. Howe in June, 1876, and record of the survey and field notes were approved by the surveyor general August 7, 1876, and a plat therefrom was by him duly made and submitted to the Commissioner of the General Land Office; that complaint was filed against the accuracy and good faith of the survey, which the Commissioner dismissed, and June 11, 1879, approved the survey and plat, which were duly filed and are the only survey and plat of the township ever made or adopted by the government, and according to them the government sold and disposed of all the land in the township; that the survey, field notes and plat were incorrect, and did not accurately show the location and subdivisions of the land and water of the township, for that Cedar Island Lake is smaller than delineated, and several of the complainants’ fractional lots are larger, and others are smaller, than shown on the plat; tha complainants purchased said lands for value as extending to the lake upon an estimate of the timber thereon without knowledge KIRWAN v. MURPHY. 37 189 U. S. Statement of the Case. of the inaccuracy or fraud of the survey; that the principal consideration inducing such purchase was that the land bordered on the lake and they owned other timber lands, the timber from which could be brought to market by floating through the lake and its outlet down the St. Louis River, then the only means of transport; that in 1892, five certain settlers, knowing com plain a.nt,s’ rights and claims, petitioned for a survey of said lands, which the surveyor general recommended to the Com-mi si on er of the General Land Office should be allowed, but the petition was disallowed, whereupon on appeal to the Secretary of the Interior such proceedings were thereafter had that in October, 1895, the Commissioner of the General Land Office directed the United States surveyor general of the district of Minnesota to make a resurvey, which order was ratified and confirmed in November, 1896 ; that the contract for the resurvey of said land had been let by the surveyor general to Croswell and the survey was about to commence. The bill averred that “by a new survey of said lands your orators will be put to great and vexatious litigation in making proof of their title in actions against parties who are wholly irresponsible; that a very large amount of the timber standing as aforesaid on the land of your orators and owned by them will be destroyed in the making of such proposed survey and the remainder thereof exposed to damage by fire by reason of said resurvey and your orators will be thereby irreparably injured.” The prayer was that the “ surveror general, his agents, attorneys, solicitors, and servants may be restrained by the order and injunction of this honorable court from entering into any contract for the survey of the lands herein described, or from surveying the same, or from taking any action for a survey of said lands or any part thereof, and that boundaries of said lands of your orators may be defined and set out in the decree and order of this honorable court and that all necessary direction may be given them for that purpose and to establish the boundaries of said lands, and that your orators may be protected in t e use and enjoyment of such lands so owned by them as aforesaid extending to and including the shores of said Cedar Island 38 OCTOBER TERM, 1902. Statement of the Case. 189 ft 8. Lake and to the center of said lake, and that said defendant and his successors in office may be perpetually enjoined from letting said contract for the survey of said land or any part thereof, and from surveying the same or any part thereof, and that your orators may have such other and further relief as to this court may seem meet.” Argument was had on the application for a temporary injunction and the matter taken under advisement, whereupon defendants filed their joint answer to the bill. Defendants admitted the making of a contract of survey of the unsurveyed lands in these sections lying between Howe’s purported meander line and Cedar Lake; that in 1876 a contract was made with Howe for the survey of the township, and that he returned the field notes of a pretended survey from which a plat was made and approved, but defendants averred that Howe surveyed only the exterior lines of the township, and in fact made no subdivision thereof, nor surveyed the lands within it; that his field notes were false, fraudulent and fictitious, and the plat made therefrom was false and incorrect; they admitted that the survey and plat were approved by the Commissioner of the General Land Office after complaint to him of its inaccuracy, but not until after withdrawal of the charge of inaccuracy by the person making it. They admitted that an exhibit attached to the bill was a true copy of such approved plat; they denied that all of the lands were disposed of by the government, and alleged that about 1200 acres in these sections were never disposed of and were still unsurveyed, lying between Cedar Lake and the lots described, all of which unsurveyed land is the land referred to, and is by the plat made from Howe’s field notes indicated as part of Cedar Island Lake; they allege that no lots conveyed to the complainants were smaller than shown on the plats; that the true relative size of the lake to that shown in the plat was that shown on an exhibit attached, and that the land between the lake and the boundary line of the fractional lots was 1200 acres of unsurveyed government land as referred to; defendants denied the good faith of complainants and alleged complainants’ full participation in the contest proceedings resulting in the decision and order for the survey KIR WAN v. MURPHY. 39 189 U. S. Statement of the Case. of these lands, and that the Commissioner and the Secretary of the Interior had full jurisdiction to pass on the question and to make the decision and order. The answer denied that the timber on complainants’ land would be destroyed or damaged in making such survey, and denied every averment of the bill except as in the answer averred or denied. The Circuit Court granted the preliminary injunction, and its order was affirmed by the Circuit Court of Appeals for the Eighth Circuit. 83 Fed. Rep. 275. An appeal was taken to this court and dismissed. 170 U. S. 205. The cause then went to final hearing, and the Circuit Court found the facts as follows : “ 1. On or about April 26, 1876, a contract for the survey of all lands in township 57 north, of range 17 west, in Saint Louis County, Minnesota, was made by the government of the United States with one Henry S. Howe, as a deputy surveyor of the United States, and thereafter said Howe made and filed what purported to be field notes of a survey of said township, from which a purported official plat of said township was thereafter made and approved by the surveyor general of the United States for the District of Minnesota and by the Commissioner of the General Land Office, of which plat Exhibit A attached to the bill of complaint is a substantially correct copy. “2. There is no evidence, nor any marks upon the ground, to indicate that any actual survey of said township 57 was ever made by said Howe, as required by his said contract, and by the rules and regulations of the General Land Office, or at all, yon t e running and due marking of the exterior boundary hnes of said township, where the section, quarter, and other postsand markings established by him are and always have en clear, distinct, and readily found and traced. There is evidence on the ground that section lines were ever run by aCr°iSS Said townshiP’ or section corner posts or quar-north w r °P Set by him’ a coraer P^t at the in thA wSt/°rnvr °f SeCti°n thirty-six <36) and a quarter post no evident °f SeCtion thirty-six (36)> and there is no^evidence that witness trees were ever blazed or marked by 40 OCTOBER TERM, 1902. Statement of the Case. 189 U. 8. “ 3. Cedar Island Lake is a navigable, deep, and permanent body of water, fed principally by springs, having an area of about nine hundred (900) acres, instead of about eighteen hundred (1800) acres as described in the field notes of Howe and shown on said official plat of said township. Instead of the shores of said lake being low and swampy as stated in said field notes, the banks are generally high and sloping lands, suitable for agriculture, extending around the lake, and support a good growth of pine and other forest trees large enough for lumbering, such as will not grow in water. The condition was the same in 1876, and no material part of the land surrounding the lake is accretion. Southerly and westerly of said Cedar Island Lake are five other deep, navigable, and permanent lakes in the same township, none of which are shown by the field notes of Howe’s survey or upon said government official plat of said township, and all of which have, since the making of said official plat, been sold and patented by the government as land according to said plat. “ 4. There is no evidence upon the ground that any meander line of said Cedar Island Lake was ever surveyed by said Howe, or any meander posts placed by him about said lake, except one where the north line of said township encounters said lake. And the outlet of said lake is at a different place from that described in said field notes and shown upon said official plat. After the making of the said survey and plat and before its approval, complaints touching the accuracy thereof were made to the Commissioner of the General Land Office, but on t e withdrawal of such complaints the said survey and plat were approved. . ., « 5. The land lying between the actual water line ot saia Cedar Island Lake and the meander line of that lake, as delineated on said official plat of said township, comprises t e an in controversy in this suit, and is the same land directe to e surveyed by the Commissioner of the General Land Office a referred to in the surveyor’s contract, which is attac as Exhibit A to the answer in this suit, being therein descn e as ‘ the public lands situate in secs. 2,'3, 4, 9, 10, and 11, in own ship No. 57 N., R. 17 W., of the 4th principal meridian, lying klRWAN r. MUBPHY. 41 189 U. S. Statement of the Case. between the “ old meander boundary of Cedar Island Lake,” as given by the original field notes of Henry S. Howe, U. S. deputy surveyor, approved by the surveyor general of Minnesota, Aug. 19, 1876, and the shore line of said Cedar Island Lake.’ “ 6. Prior to the commencement of this suit the United States has sold, and by its patents has conveyed to the purchaser, according to said official plat made from said Howe survey, all the land in said township 57, as the same appeared upon said plat; to which plat all of said patents expressly referred; it being then and still the only government plat of said township. “ 7. The complainants are the grantees and owners by mesne conveyances from the patentees of the record title to the following-described fractional lots in said township, to wit: Lots one (1), two (2), three (3), in section two (2); lots one (1) and two (2), in section three (3); lots one (1) and eight (8), and portions of lots three (3), five (5), and six (6), in section four (4); lots one (1), two (2), three (3), and four (4), in section nine (9); lots one (1), two (2), three (3), and four (4), in section ten (10); and lot three (3) in section eleven (11), being the same lands which are more particularly described in complainants’ bill; and each of which fractional lots appearand are represented on said official plat as bounded by and upon said Cedar Island Lake. 8. So far as appears none of the patentees of said lands had any notice or knowledge of any fraud or misconduct on the part of said Howe in or about the making of said survey and field notes, and all were purchasers in good faith of said lands. 9. Complainants purchased said fractional lots of land of t e patentees or their grantees for the pine timber thereon, and the convenience of landing the same in the said Cedar Island a e, to be driven to the place of manufacture; and before sue purchase, in the year 1883, caused said lands to be ex-p ore and examined by an experienced timber estimator, who a ma ing such examination used, as is customary in such cases, a copy of said official plat of said township which did a'e uPon if in any statement of the acreage or amount of 42 OCTOBER TERM, 1902. Statement of the Case. 189 u. S land in any of the subdivisions; and who reported to the complainants his estimate of the amount of pine timber on said lands, and the general character of said land, and the riparian character thereof as bounded upon said Cedar Island Lake; but did not discover or report any fraud or error in the survey of said township, or any error or mistake in the said official plat. And the said complainants purchased, paid for and took conveyances of said lands in good faith, and without any notice or knowledge of any such fraud, error, or mistake. “ 10. The other permanent lakes in said township, not shown upon such official plat, but appearing thereon as land, and since sold and patented by the government as land according to such official plat, include areas equal to the area of said Cedar Island Lake; and portions of such lakes were purchased by complainants as land with their other purchases in said township. “11. The survey sought to be restrained in this suit was ordered by the Commissioner of the General Land Office, upon the direction of the Secretary of the Interior, in a proceeding instituted by certain settlers upon the land in controversy; of which proceedings the complainants had due notice, and in which they appeared.” And the Circuit Court decreed : “ That the complainants are the grantees and owners, by mesne conveyances from the patentees, of the title of record and, in fact, to the following-described fractional lots, situate in township fifty-seven (57) north-range seventeen (17) west, in the county of St. Louis, State of Minnesota, to wit: ” [Here follows description of lots,] “ being the same lands which are more particularly described in the complainants’ bill of complaint herein ; and that said above-described fractional lots extend to and are bounded by and upon the actual waters of Cedar Island Lake. “ It is further ordered, adjudged, and decreed that the defendants have no jurisdiction or authority to meddle with said lands or to make the survey complained of in the bill of complaint herein; and “ It is further ordered, adjudged, and decreed that the in- KIRWAN v. MURPHY. 43 189 U. S. Argument for Appellees. junction heretofore issued in this cause be and the same is hereby made perpetual, and that the said defendants and their successors, representatives, and assigns be and they are hereby severally and perpetually restrained and enjoined from surveying or causing to be surveyed the lands hereinbefore described, or any part thereof.” And for costs. Appeal was then taken to the Circuit Court of Appeals and the decree affirmed. 109 Fed. Rep. 354. Thereupon the case was brought to this court. The following drawing taken from petitioners’ brief sufficiently illustrates the situation: Jfr. Assistant Attorney General Van Devanter for appellants, r. Assistant Attorney Webster was with him on the brief. j/ç VV and M. n. Stanford, with whom T Th Lucliett was on the brief, for appellees. Mob » n oeff ” o.6 tbe Patents to the plat makes the plat as ooi/raM ? he>patent as U would be had the Plat been in-orporated into and made, in fact, a part of the patent itself. 44 OCTOBER TERM, 1902. 189 U. S. Argument for Appellees. By the plat designating the lots as bounded by the lake showing the lake to be the boundary of the lots, the effect to be given to the patent is the same as it would be if the description of the lots in the patent had in express language said that the lots extend to and are bounded by the shore of the lake. The lake is thus made a designated natural object constituting a boundary of the lots. It is a boundary monument of the lots. Lincoln v. Wilder, 29 Maine, 169; Erskine v. Moulton, 66 Maine, 276 ; Davis v. Rainsford, 17 Massachusetts, 207; Whitman v. Boston <& Marine R. R. Co., 3 Allen, 133,139; Boston Water Power Co. v. Boston, 127 Massachusetts, 374; Morga/n v. Moore, 3 Gray, 319, 321, 322; Murdock n. Chapman, 9 Gray, 156 ; Rodgers v. Parker, 9 Gray, 445; Fox v. Union Sugar Refinery, 109 Massachusetts, 292; Parker v. Bennett, 11 Allen, 388 ; Masterson v. Monroe, 105 California, 431 ; Cragin n. Powell, 128 U. S. 691. In the patents by which these lots in question are conveyed by the United States there is no description of the lands other than by reference to the plat. Under the above authorities, the description by the plat is to have the same effect as though the language of the patent in terms stated that the lake is a boundary of the lots. II. The patents, by reference to the plat, having described the lands as extending to and bounded by the lake, conveyed all the land within the descriptions, and the United States is estopped to deny that the lots extend to and are bounded by the lake. Thomas v. Poole, 1 Gray, 83; Parker n. Smith, 1 Massachusetts, 411, 415; O'Linda v. Lothrop,^ Pick. 292; Rodgers v. Parker, 9 Gray, 445; Fox v. Union Sugar Refinery, 109 Massachusetts, 292; Farnsworth v. Taylor, 9 Gray, 162 ; Stetson v. Dow, 16 Gray, 372 ; Lunt v. Holland, 14 Mass ^0 ~[ J 149 Estoppel applies against the United States as it applies un^ like circumstances against a private person. As un er above authorities a private person conveying the lands y re erence to such plat would be estopped to deny that t e extended to and was bounded by the lake, so is t e States estopped to deny the same facts. Lindsey n. Hawes, KIRWAN v. MURPHY. 45 189 U. S. Argument for Appellees. Black, 554, 560; Woodruff v. Trapnall, 10 Howard, 190, 207; Branson v. Wirth, 17 Wall. 32, 42 ; Clark v. United States, 95 U. S. 539,544 ; Pengra v. Munz, 29 Fed. Rep. 830,836 ; Hough v. Buchanan, 27 Fed. Rep. 328, 331 ; Indiana v. Milk, 11 Fed. Rep. 389,396, 397 ; United States v. Military Road Co., 41 Fed. Rep. 493, 501 ; United States v. McLaughlin, 30 Fed. Rep. 147, 161, 162; Commonwealth v. Philadelphia dec. Turnpike Co., 153 Pa. St. 47 ; State v. Janesville Water Power Co., 92 Wisconsin, 496 ; Michigan v. F. <& P. M. R. R. Co., 89 Michigan, 481 ; Michigan v. Jackson, L. & S. R. Co., 69 'Fed. Rep. 116, 120, 121, 123 ; Commonwealth v. Heirs of Andre, 3 Pick. 224 ; Menard's Heirs v. Massey, 8 How. 293, 313, 314. Under the above authorities, the United States, in a suit brought in its behalf, would be estopped to deny that Cedar Island Lake was the boundary of the lots conveyed by the patents. III. The descriptions of these fractional lots contained in the patents, being lots as they appear by their numbers, and by their boundaries designated on the plat, and the lake itself being made the boundary, the boundary by the lake thus made governs the description, notwithstanding no courses, distances, nor computed contents correspond with such boundary. This is clearly decided by the following cases, even though it may be found that no survey of the lots had in fact been made. v* Pryor s Lessee, 7 Wheat. 7 ; McIver’s Lessee v. « er, 9 Cranch, 173, 179 ; Preston's Heirs v. Rowmar, 6 Wheat. 580 ; Higueras v. United States, 5 Wall. 827, 835, 836 ; Morrow v. Whitney, 95 U. S. 551 ; County of St. Clair v. Lao-'t-ngston, 23 Wall. 46, 62, 63 ; Murdock v. Chapman, 9 Gray, 156 ; B^hop v. Morgan, 82 Illinois, 351 ; Shufeldt v. Spaulding, 37 Wisconsin, 662, 668; Core y. White, 20 Wisconsin, 425, 432; Craves y Fisher, 5 Maine, 69; Horne y. Smnth, 159 U. S. 40 ; Bi^s v. Cedar Point Club, 175 U. S. 300. hant116#3^^’ ?^ese meandered lines are lines which course the s ot navigable streams or other navigable waters. Hence, survTarST?-StmCtly from the field notes and the Plat that the it Th°r’K1Ce’Stopped his surveys at this “ marsh ” as he called ese surveys were approved and a plat prepared, which 46 189 U. 8. OCTOBER TERM, 1902. Argument for Appellees. 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. By the plat in the case which is now before the court, the meander line is fixed upon the shore of the lake, and the lake is delineated and named on the plat. The intention plainly expressed by the patent and plat is that the meander line and shore of the lake coincide, and that the lake itself is the boundary of the land conveyed. In this manner the lake is made the boundary of the land within the decisions in Horne v. Smith, and Niles v. Cedar Point Club, because the plat shows that the lake is intended as the boundary. IV. Defendants contend that a patent of unsurveyed lands conveys no title, and that, therefore, no title passed from the United States to the lands in controversy, because it was not, in fact, surveyed by Deputy Surveyor Henry S. Howe, and cite to sustain this position the expression of the court in the case of Horne v. Smith, 159 U. S. 40. That case does not hold, as claimed by defendants’ counsel, that land which is not surveyed cannot pass by patent. See also Mitchell v. Smale, 140 U. S. 406 ; Railroad Co. v. Schur-meir, 7 Wall. 272. V. The patents having included the lands in controversy within the descriptions of the lands conveyed, the validity of the patents cannot be questioned in this suit. 1st. If there was mistake or fraud in the issue of the patents, it can be corrected only7 by a suit brought by the United States, which shall set forth the facts which constitute the basis or ground for such correction. The survey of the public lands is vested in the Land Department, and it is within the jurisdiction of that department to determine when the lands have been properly surveyed, so that a patent may be issued for them. The action of the Land Department upon this subject is judicial, and is “ unassailable, except by a direct proceeding for its KIRWAN v. MURPHY. 47 189 U S. Argument for Appellees. correction or annulment.” Smelting Co. v. Kent, 104 IT. S. 636, 640 ; United States n. Minor, 114 U. S. 233, 241, 243; Moffat v. United States, 112 U. S. 24, 30; United States v. Schurz, 102 U. S. 378, 396; United States v. Stone, 2 Wall. 525, 535; Erhardt v. Nogaboom, 115 U. S.. 67; Johnson v. Towsley, 13 Wall. 72, 83; Noble v. Union River Logging R. R. , 147 U. S. 165, 175; Bishop of Nesqually v. Gibbon, 158 U. S. 155,166,167. To assail these patents on the ground of fraud, or to correct them in respect to the lands in controversy, the suit would have to be instituted by the United States, since the controversy would be between it and the complainants, no other parties having obtained any claim to the lands from the United States. United States n. San Jacinto Tin Co., 125 U. S. 273. The complainants cannot bring suit against the United States in this court, or elsewhere, to establish the complainants’ title to the lands. They must rest upon the patents for their title until the United States sees fit to attack the patents. United States v. Schurz, 102 U. S. 378, 404. The United States has not appeared in this suit, and the court had no jurisdiction to bring it into the case, and no decree which may be made will be of any effect against the United States. The attack upon the validity of the patents by the defence in this suit is a collateral attack, and is not available to the defence. 2d. In the suit instituted by the United States, to avoid or correct the patent on the ground of the alleged false character of the field notes and plat, the complainants would have the right to set up as their defence an estoppel against the United States. The authorities above cited establish that the defence of estoppel would be available in such suit to the complainants. 3d. The complainants would also be in position to defend against the United States in such suit upon the ground of their being bona fide purchasers of the lands, and in such suit the United States would be required by its pleading to state 48 OCTOBER TERM, 1902. Argument for Appellees. 189 U. S. clearly the facts upon which the charge of fraud or mistake was based, and the burden would be upon it to sustain the charge by clear and convincing proofs, even though to do so would require the proof of the negative. A preponderance of the evidence merely would not sustain it. Maxwell Land Grant Case, 121 U. S. 325, 379, 381 ; Colorado Coal Co. v. United States, 123 U. S. 307, 313, 314; United States v. Burlington de. B. B. Co., 98 U. S. 334, 342; United States n. California Land Co., 148 U. S. 31, 40; United States n. Winona &c. R. R. Co., 165 U. S. 463, 478; 67 Fed. Rep. 948, 960. VI. The court has jurisdiction to enjoin the acts of the defendants in making a survey of the lands. 1st. The survey is made under such a contract that the lands in controversy may be treated as government lands, open for homestead or other claims, or for purchase, under the laws governing the disposition of the government lands. These proceedings of survey, field notes, and plat, will constitute a cloud upon the complainants’ title to the land. Under the general equity powers of the Federal courts, they have jurisdiction to quiet title to lands in favor of the party in possession, having the title, against a party not in possession, who sets up a claim to the land which constitutes a cloud upon the possessors’ title. Peirsoll v. Elliott, 6 Pet. 95; 1A& Conihay v. Wright, 121 U. S. 201; Frost v. Spitley, 121 U- 8» 552; United States n. Wilson, 118 U. S. 86. The reason why the general jurisdiction of courts of equity is limited to cases in which the complainants are in possession of the lands is, that, if not in possession they have an adequate remedy at law by ejectment; the further reason applicable to the Federal courts is that the right to trial by jury is preserv in those courts in all cases in which the conditions are such that the matter in controversy may be tried in a suit at law by a jury. In those States where, by statute, a right is given to a par y to maintain a suit in equity to quiet title to land owned bynn, which is vacant or unoccupied, that right may be enforc ® the Federal courts. The right is held to be the creation, y statute, of an equitable right, which right, by reason of t e e* KIRWAN v. MURPHY. 49 189 U. S. Argument for Appellees. fendant not being in possession, cannot be tried in an action at law; there is therefore no infringement in such case of the right to trial by jury. Ciarle, v. Smith, 13 Pet. 195; Hollamd v. Challen, 110 U. S. 15, 20-25; Reynolds v. Crawfordsville Bank, 112 U. S. 405, 410, 411; United States v. Wilson, 118 U. S. 86; Rich v. Braxton, 158 U. S. 375, 405; Dick v. Foraker, 155 U. S. 404, 414, 415; Greeley n. Lowe, 155 U. S. 58, 75; Cowley v. Northern Pac. R. R. Co., 159 U. S. 569, 582, 583; Sm/yth n. Ames, 169 U. S. 466, 517. The statutes of the State of Minnesota provide as follows: “ Sec. 2. Action to Determine Adverse Claims. An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein, or lien upon the same, adverse to him, for the purpose of determining such adverse claim, estate, lien, or interest; and any person having or claiming title to vacant or unoccupied real estate may bring an action against any person claiming an estate or interest therein adverse to him, for the purpose of determining such adverse claim, and of the rights of the parties, respectively.” Stat. Minnesota, 1878, c 75, § 2, p. 814. This statute of Minnesota is substan-ia y t e same as the statute of Indiana, referred to in the case of Reynolds v. Crawfordsville Bank. Under this statute, e Circuit Court in which this suit was brought, sitting in Minnesota has jurisdiction to remove the cloud from the com-p amante title to the lands in controversy, which lands, in re-wl 6 Par^es to tois suit, are vacant and unoccupied. elnnd r ere courts in equity have jurisdiction to remove a hv i • r°T- t0 ^an(^s’ they have jurisdiction to prevent, and "iU.nCtl°n’ the Proceedings for the creation of a cloud, timet. IHiahin"0!1 .CaS®.ÍS the charaoter a Ml ; tee of 5 PiUge’ 493> 501> 502 i OaOey v. The Trus- 6 Paig°’ 262 : °’Sare v- Downing, 130 Tuoher ill n V? PemM v- « Pet. 95 ; Sharon v. &aÜA538,54A; V- ^um„. 504 ; . R. Co. v. Cheyenne, 113 U. S. 516, 526, 527. vol. clxxxix—4 50 OCTOBER TERM, 1902. Argument for Appellees. 189 U. S. The right to maintain suit and prevent the creation of a cloud upon the title in case of vacant or unoccupied lands is clearly within the intent and purpose of the statute of Minnesota, and would be enforced in the courts of that State. But the jurisdiction of the courts, either State or Federal, does not depend in such case upon the state statute. Remedy to prevent the wrong or injury threatened or intended by the proceedings to create a cloud upon the title exists in equity, because the only effective remedy is by injunction to stay the proceedings. The right to trial by jury is not invaded, since there is no opportunity at law to try the controversy. 3d. In order that the complainants be remitted to their remedy at law, it must appear that such remedy is plain and adequate in the sense that it is “ as practical and efficient to the ends of justice, and its prompt administration as the remedy in equity,” and the circumstances of the case must determine whether there is such remedy at law. Boyce v. Grundy, 3 Pet. 210, 215; Watson v. Sutherland, 5 Wall. 74,78; Payne v. Hook, 7 Wall. 425,430 ; United States n. Union Pac. R. R. Co., 160 U. S. 1, 51; Oelrichs v. Spain, 15 Wall. 211, 228; McConihay n. Wright, 121 U. S. 201, 205, 206; Holland v. Challen, 110 U. S. 15, 24. If the proceedings sought to be enjoined in this case are allowed to be completed the inevitable result will be various claims made for the lands as government lands. The very object of the survey is to open lands to such claimants, and in order that the complainants defend and maintain their title a multiplicity of suits will be the result. No action at law is adequate to the complainants’ protection. Under these conditions the court will enjoin the acts of the defendants to prevent a multiplicity of suits. Pomeroy, Eq. secs. 243, 245, 267, 268 ; Livingston v. Livingston, 6 Johns. Chy. 497; DeForest v. Thompson, 40 Fed. Rep. 375 (opinion J Judge Jackson, Mr. Justice Harlan concurring); Oslorne v. Wisconsin Cent. R. Co., 43 Fed. Rep. 824 (opinion by Mr. Justice Harlan); Crews v. Burcham, 1 Black, 352, 358; Lov/ism &c. R. Co. v. Ohio &c. Co., 57 Fed. Rep. 42; Hew York <&• KIRWAN v. MURPHY. 51 189 U. S. Argument for Appellees. R. Co. v. Schuyler, 17 N. Y. 592; Supervisors v. Deyoe, 77 N. Y. 219. 4th. To make the intended survey of the lands it would be necessary to cut down a considerable quantity of the pine timber standing upon the lands, and by the cutting of such timber, the remainder of the valuable pine timber would be exposed to destruction by fire. An irreparable injury is threatened. It is an undisputed fact that the chief value of the lands in controversy consists in the pine timber standing upon them. It is a fact of common knowledge that the felling of timber in the pine forests in the northern States is a source of special and great danger to the remaining pine timber standing upon the lands. Fires are easily kindled, and there is constant likelihood of their being kindled, in the dry tops and refuse of the fallen trees; having gained force from the quantity of refuse the fires spread rapidly and for long distances. The standing timber is not destroyed by being burned up, but the heat about the roots of the trees kills the trees and destroys their value. The cutting of the timber by the defendants will not be confined to one place, but will be along the different lines running through the forests upon which the survey is made. In this manner an exposure to the danger of fire will be made to large portions of the lands. The court has jurisdiction, by injunction, to prevent the cut* ^m^er and the threatened danger of its destruction. Wdson v. City of Mineral Point, 39 Wisconsin, 160; Butman v. ames, 34 Minnesota, 547; Smith v. Roc, 59 Vermont, 232; West ± otnt Iron Co. v. Reymert, 45 N. Y. 703; Camp n. Dixon, & Co., 112 Georgia, 872; Erhardt v. Boaro, 113 U. S. r „ PaG- R' R Go- v- 61 Fed. Rep. 231; Oologah Co. n. McCaleb, 68 Fed. Rep. 86 ; Buskwk v. King, 72 Fed. Rep. 22; Dimick v. Shaw, 94 Fed. Rep. 266. ti f V16 defendants are acting under the direc- no t e Land Department does not deprive the court of juris* on to restrain acts done by them which are injurious to the mp ainants, and which are unlawful acts. havi 6 k States to the lands in controversy § een conveyed by the patents under which the complain- 62 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S ants obtained that title, the Land Department has no authority, either upon the ground of fraud, or mistake in the survey of the lands, to interfere with the complainants’ title, or ownership or possession of the lands. The defendants have no more right to enter upon the lands to resurvey them than they have to enter upon and resurvey any lands owned by private parties. Before any entry can be made upon the lands by them, under a claim that they are government lands, the patents must be set aside, or declared void by the court in a suit instituted for that purpose on the part of the United States. This position is clearly maintained by the decisions of this court. Moore v. Robbins, 96 U. S. 530; Cragin v. Powell, 128 U. S. 691, 699, 700; United States v. Schurz, 102 U. S. 378,401, 402; Steel n. Smelting Co., 106 U. S. 447; Widdicombe v. Coders, 124 U. S. 400; Hardin v. Jordan, 140 U. S. 371, 401; Noble v. Union Hirer Logging Railroad, 147 U. S. 165, 175; Michigan La/nd <& Lumber Co. v. Rust, 168 U. S. 589; McCormick Machine Co. v. Aultman, 169 U. S. 606; United States^. San Jacinto Tin Co., 125 U. S. 273, 282; United States n. Winona & St. Peters R. Co., 67 Fed. Rep. 948, 959 (Court of Appeals). The defendants, in attempting to survey the lands, are acting without right and without lawful authority from any source. Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. The bill prayed for injunction and the establishment of the boundaries of complainants’ lands. The decree granted a perpetual injunction, and, describing the fractional lots, adjudged that they “ extend to and are bounded by and upon the actual waters of Cedar Island Lake.” The deflection of the lines required by the decree is indicated on the diagram. Sections 2395, 2396 and 2397 of the Revised Statutes specify the manner of making surveys of public lands, and prescri the rules by which the form and boundaries of the tracts are determined. In this case no survey was in fact made, no meander line was in fact run, and no body of water in KIEW AN v. MURPHY. 53 189 U. S. Opinion of the Court. existed near the false meander line indicated. The line purporting to delimit the lake was from one mile to a quarter of a mile from the lake, and ran over high agricultural land, covered with ancient trees, which could not have grown in water. The theory of the decree is that the government is estopped by the pretended survey and plat to deny that these lots were bounded by the lake. The Land Department must necessarily consider and determine what are public lands, what lands have been surveyed, what are to be surveyed, what have been disposed of, what remain to be disposed of, and what are reserved. The department has held that the land lying between the alleged meander line and the lake, some 1200 acres, is government land, and has ordered it to be surveyed. In re Burns, 20 L. Dec. 28, 295; 23 L. Dec. 430. The execution of that order was restrained by the preliminary injunction herein, and that has been made perpetual by the decree. We are confronted on the threshold with two objections to t e maintenance of this bill, namely, the want of jurisdiction in equity, and the want of jurisdiction thus to interfere with executive administration. Eqmty jurisdiction was invoked on the ground of lack of a equate remedy at law in that irreparable injury in the destruction of timber and exposure to fire by the survey, and multiplicity of suits were threatened. i i •] *)Ur T“™ complainants failed to make out a case of hvQ1'7 o lrreparable injury. The township was resurveyed siirvOC0Un y Surve^or 1893 ; defendant Croswell has made lakn /8 i, 6 t°wnship, locating the actual meanders of the “with^ 6 t^ilicd that this survey could be made by him hewnni? an^{“aterial iniur>y to the soil or timberand that Plainant have t° cut very much valuable timber.” Ifcom-tionaH^h °Wners10f the 859-38 acres contained in their fracacres Ivin Gkame throuSh that ownership owners of the 1202 survey wonllbttWken those.lots and the lake, the proposed the element Ut & fu^itive and temporary trespass, lacking anc as tot mischief’ and of such ^g continu ce as to become a nuisance. 54 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. And bills of peace will not lie where the legal remedy is otherwise adequate, and where the persons directly interested are not made parties, are not numerous, and assert separate and independent rights. Hale v. Alli/nson, 188 U. S. 56; Cruick shank v. Bidwell, 176 U. S. 73. But, in the next place, was the Circuit Court justified in thus arresting the action of the Land Department in proceeding with a survey under the circumstances ? In other words, can the Land Department be stayed in the discharge of a duty, not ministerial, but involving the exercise of judgment and discretion, on the ground that its jurisdiction has been lost by estoppel? We do not think so, and hold that complainants’ contention that they are entitled to bound upon the lake involves a legal right, which cannot be properly passed on until after the department has acted. Having participated in the proceedings before the department, complainants, after survey was ordered, obtained this injunction against further administrative action, on the ground of absolute want of power, and not of error in its exercise. The administration of the public lands is vested in the Land Department, and its power in that regard cannot be divested by the fraudulent action of a subordinate officer, outside of his authority, and in violation of the statute. ~Whiteside v. UnM States, 93 U. S. 247; Hoff at v. United States, 112 U. 8. 24; Hume v. United States, 132 U. S. 406, 414. The courts can neither correct nor make surveys. The power to do so is reposed in the political department of the government, and the Land Department, charged with the duty of surveying the public domain, must primarily determine what are public lands subject to survey and disposal under the public land laws. Possessed of the power, in general, its exercise of jurisdiction cannot be questioned by the courts before it has taken final action. Brown v. Hitchcock, 173 U. S. 473. In Litcl>field v. The Register and Receiver, 9 Wall. 57 , Litchfield sought an injunction to restrain the register and re ceiver of the United States land office at Fort Dodge, Iowa, from entertaining and acting upon applications made to them to prove preemptions to certain lands which lay within t e KIRWAN v. MURPHY. 55 189 U S. Opinion of the Court. land district for which they were respectively register and receiver. The bill averred that complainant was the legal owner of the lands; that they were not public lands, and were in no manner subject to sale or preemption by the government or its officers. The bill was dismissed for want of jurisdiction in equity, and this court affirmed the decree. Mr. Justice Miller said: “The principle has been so repeatedly decided in this court, that the judiciary cannot interfere either by mandamus or injunction with executive officers such as the respondents here, in the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion, that it would seem to be useless to repeat it here.” Gaines v. Thompson, \ Wall. 347; The Secretary v. McGarrahan, 9 Wall. 298. It was held that the fact that complainant asserted himself to be the owner of the tract of land, which the officers were treating as public lands, did not take the case out of that rule, where it was the duty of these officers to determine, upon all the facts before them, whether the land was open to preemption or sale; and further, that if the court could entertain jurisdiction, the persons asserting the right of preemption would be necessary parties to the suit. Mr. Justice Miller farther said: “After the land officers shall have disposed of the question, if any legal right of plaintiff has been invaded, he may seek redress in the courts. He insists that he now has the legal title. If the Land Department finally decides in his favor, he is not injured. If they give patents to the applicants for preemption, the courts can then in the appropriate proceeding determine who has the better title or right.” And: “ It appears on its face, that the register and receiver have no real interest in the matter, but that persons not named are asserting before them the legal right to preempt these ands. These persons are the real parties whose interests are to be affected, and whose claim of right is adverse to plaintiff, f the court should hear the case, and enjoin perpetually the register and receiver from entertaining their applications, they ave no further remedy. That is the initial point of establish 56 OCTOBER TERRI, 1902. Opinion of the Court. 189 V. S. ing their right, and in this mode a valuable and recognized right may be wholly defeated and destroyed, without the possibility of a hearing on the part of the party interested. This is not a case in which the land officers represent these claimants. They have no such duty to perform.” The case has been frequently cited, and in, among others, Carrick v. Lamar, 116 IT. S.423, an application to the Supreme Court of the District of Columbia for a mandamus to the Secretary of the Interior to order the survey of an island in the Mississippi River, opposite the city of St. Louis, by an alleged settler thereon, who averred that he had applied to the department for a survey of the island, so that it might be brought into the market, and that on the hearing of the application the city contended that the island had been surveyed and set apart to it, under certain acts of Congress, which he denied, because, as he insisted, the island surveyed was then located above this island. The court refused to grant the writ, and its judgment was affirmed, this court holding that the question how far the title of the city to the island was affected by its being carried down river by the action of the current, required consideration and judgment on the part of the Secretary. Noble n. Union River Logging Company, 147 U. S. 165, is not to the contrary, for that was a case where the executive department had confessedly finally acted, and then attempted to resume jurisdiction, and an injunction was sustained. But the government raised no point as to the form of the remedy; deprivation of a vested legal right of property, acquired before any suggestion that it could be taken away, was threatened; and it appeared that the only remedy was through equity interposition. Cruickshank v. Bidwell, 176 IT. S. 73, 80. In this case, whether the lands lying between the alleged meander line and the lake were public lands, or not, was for the Land Department to determine in the first instance, and if error was committed, this is not the way to correct it. In our judgment the Circuit Court should not have taken jurisdiction, and therefore the Decree of the Circuit Court of Appeals is reversed, t decree of the Circuit Court is also reversed, and the remanded to that court with a direction to dismiss the ÌJRlLt V. péckHaM Motor TRUCK cò. 189 U. S. Statement of the Case. BRILL v. PECKHAM MOTOR TRUCK AND WHEEL COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 181. Argued March 2, 3,1903.—Decided April 6,1903. Where in a patent case a preliminary injunction has been granted by a Circuit Court on the strength of a previous adjudication by the same court over the same patent, the case involving questions of fact in respect of anticipation and infringement, and not being ripe for final hearing, it is error for the Circuit Court of Appeals on an appeal from the interlocutory order to direct a dismissal of the bill. Mast Foos Company v. Stover Manufacturing Company, 177 U. S. 485, applied. This was a bill in equity filed in the Circuit Court of the United States for the Southern District of New York by John A. Brill and The J. G. Brill Company against The Peckham Motor Truck and Wheel Company and others, praying for injunction and accounting for infringement of letters patent No. 478,218, for an improvement in car trucks, issued July 5, 1892. he J. G. Brill Company was a manufacturer of street cars and trucks at Philadelphia, and The Peckham Motor Truck and eel Company was a manufacturer of trucks at Kingston, New York. s The bill was filed October 15, 1900, and a motion for pre-lniIldrvV injunction on behalf of complainants on claims one 0 t 1Z° pa^en^ su^ was Beard by Judge Lacombe on ant-'« \ 1000, on affidavits previously served by complain- • thlnC U lng ^le recor(l an adjudication in the Circuit Court whi h +kSe v' Avenue liailroad Company, in mqp opinion of Judge Shipman was filed July 9, 1900. 193 Fed. Rep. 289. ^^idavits at the hearing, which had been Parent! °l er an^ wBi°h complainants had ap- Thp

which would make his dulv m January’1902- of said officers were ficLnd legaUy/leKcted and inducted into their respective of-qScaZTj. and Up to the time of tho to W^m th/u t0 Wit’ °n March 2’1901’ ^tinned emolument« exercise the ^notions and receive the Th^T pertaming to ^id offices.” General A st^hiVer? an act of the the governor Z ° State of Tennessee was approved by a board of pubh^rZd “ An to create and working of nnhr COmjnissloners’to regulate the laying out population of not 1^° th State’ counties having a under the Federal than Y0>000 and not more than 90,000, n . year 1900> or vol. clxxxix—-5 provide a niethod for the management 66 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. and control of county workhouses in counties coming under the provisions of this act.” That in pursuance of the act, the governor of Tennessee, on February 16, 1901, appointed Stephen P. Condon, James Rich and T. T. McMillan as the board of public road commissioners ; that Condon was appointed superintendent of public roads, and the other two associate members of the road commission ; that the governor had issued to defendants commissions as such public road commissioners ; and that they gave bond and qualified March 2, 1901, “ and are now attempting to perform the duties of the said offices.” That defendants had in fact ousted the pike commissioners, the workhouse commissioners and superintendent from their respective positions, and deprived them of their privileges and powers ; and that H. C. Anderson had been elected by defendants manager of the workhouse. Complainants further represented that the act of February 8, 1901, was in plain violation of the constitution of the State of Tennessee ; illegal, null and void ; and “ not effective to deprive the said parties of the several offices aforesaid, to which they were regularly elected, or of the rights, powers, privileges and emoluments thereof,” and that defendants “ are unlawfully holding and exercising said offices of public road commissioners and superintendent of roads and associate members, and that they are usurpers of said offices.” The prayer was (1) for process ; (2) “ that the said defendants may be enjoined from holding the said offices of public road commissioners or superintendent of public roads or associate members of said road commission, or manager of the workhouse, or from exercising any of the powers and rights which the said act of February 8, 1901, attempts to confer upon them, and that they may be enjoined from receiving any of the emoluments appertaining to the said offices under and by virtue of the said unconstitutional and void act, and that upon final hearing said injunction may be made perpetual ; (3) that the defendants be required to execute a bond to indemnify and hold harmless ; (4) “ that upon final hearing a decree may be rendered declaring that the said act of Febru TENNESSEE v. CONDON. 67 189 IT. S. Opinion of the Court. ary 8, 1901, is unconstitutional, null and void, and that the same confers no right upon the defendants, and that the defendants are not entitled to exercise any of the powers and privileges therein contained, or to enjoy any of the rights and emoluments therein given to them, and that they be required to surrender same and turn over all the powers, property and privileges thereof to the rightful owners aforesaid ; ” (5) and for general relief. On March 21, 1901, an application for injunction was denied, and on March 23d the bill was amended by striking out the third clause of the prayer. Defendants filed a demurrer March 29, 1901, which, on the next day, was sustained and the bill dismissed. The case was then carried to the Court of Chancery Appeals, and it was there contended, on errors assigned, that the act of February 8, 1901, was invalid because in violation of the Fourteenth Amendment to the Constitution of the United States as well as of the state constitution. The Court of Chancery Appeals affirmed the judgment of the chancellor, August 29, 1901, and an appeal was prosecuted to the Supreme Court of the State, where it was again alleged in the assignment of errors that the act in question was in violation of the state constitution and of the Fourteenth Amendment. The Supreme Court held, on November 15, 1901, that the statute was not in violation of either, and affirmed the decrees of the chancellor and of the Court of Chancery Appeals. 108 Tennessee, 82. Thereupon a writ of error was sued out from this court, and the record was filed and the cause docketed December 10,1901. No motion was made to advance the case, and it came on for argument and was argued March 12 and 13,1903. Mr. G. W. Pickle for plaintiffs in error. Mr. J. W. Green was with him on the brief. Jfr. Joshua W. Caldwell for defendants in error. Mr. wrles T. Cates, Jr., was with him on the brief. Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. 68 OCTOBER TERM, 1902. Opinion of the Court. js9 U. 8 This was a proceeding under provisions of the Code of Tennessee authorizing a bill in equity to be filed “ whenever any person unlawfully holds or exercises any public office or franchise within this State.” Shannon’s Tenn. Code, (1896) § 5165, cl. 1 ; § 5167. By sections 5168 and 5169 it is provided that the suit may be brought “ by the attorney general for the district or county, when directed so to do by the General Assembly, or by the governor and attorney general of the State concurring;” or “ on the information of any person, upon such person giving security for the costs ; ” when the attorney general for the district or county may institute the proceeding without direction. State v. Campbell, 8 Lea, 74, 75. Such was this suit, which was not brought by direction of the General Assembly, or of the governor and attorney general of the State ; but was instituted at the instance of persons superseded in public office by an act of the General Assembly (approved by the governor and carried into effect by him) which they charged was unconstitutional. Acts 1901, c. 8. The question of constitutionality had been raised in an application for mandatory injunction to compel the county judge to approve the bonds of the persons appointed commissioners under the act, the writ had been awarded and obeyed, and the decree was affirmed and the act sustained by the Supreme Court at the same time that the decree in this case, subsequently brought, was affirmed. Condon n. Maloney, 108 Tennessee, 75, 82. But the Supreme Court also ruled in the prior case that as the writ had been obeyed, it had spent its force, so that even if they differed with the chancellor as to the use of the particular process, an objection therein urged, a reversal of his decree “ could not undo what had been done,” and to enter it, “ woul be an idle ceremony.” . In the circumstances this case assumed the aspect of a ci contest between individuals, and not of a prerogative writ to correct usurpation of office. Sections 5175, 5176, 5177 and 5180 are as follows : “ 5175. Whenever the action is brought against a person or usurping an office, in addition to the other allegations, 6 TENNESSEE v. CONDON. 69 189 U. S. Opinion of the Court. name of the person rightfully entitled to the office, with a statement of his right thereto, may be added, and the trial should, if practicable, determine the right of the contesting parties. « 5176. If judgment is rendered in favor of such claimant, the court may order the defendant to deliver to him, upon his qualifying as required by law, all books and papers belonging to the office in his (defendant’s) custody, or under his control, and such claimant may thereupon proceed to exercise the functions of the office. “5177. Such claimant, in this event, may also, at any time within one year thereafter, bring suit against the defendant, and recover the damages he has sustained by reason of the act of the defendant.” “5180. When a defendant, whether a natural person or a corporation, is adjudged guilty of usurping, unlawfully holding, or exercising any office or franchise, judgment shall be rendered that such defendant be excluded from the office or franchise, and that he pay the costs.” In State ex rd. Curry v. Wright, 5 Heiskell, 612, it was held that the bond given in case of appeal in an action for usurpation of office need be only for costs, and the court, after referring to sections 5176, 5177 and 5180, (by the prior numbers,) said: “ These provisions are specific and clear that the matter in contest to be decided is the usurpation of the office or franchise; and the judgment, exclusion from that office or franchise; and the money judgment to be given is for costs, and the damages, rf any have accrued, are provided for in another suit to be brought within a year after the judgment. “ The provision, ‘ that the suit will be conducted as other suits in equity,’ only means that it shall be conducted as such a suit, to the attainment of the results above indicated, but cannot be eld to include an inquiry into the damages sustained.” The present case was argued March 12 and 13, and it appears on the face of the bill that the terms of office of all the reators, except the county judge, expired before that day. d this was true as to him because we find, by reference to 70 OCTOBER TERM, 1902. Opinion of the Court. ¡gg U. S. Articles VI and VII of the constitution of Tennessee, and State v. Maloney, 92 Tennessee, 62, that his then term of office as county judge terminated in 1902. As to the defendants the bill shows that defendant Anderson was merely a subordinate appointee of his co-defendants, and that they had been appointed by the governor commissioners under the act of February 8, 1901. That act provided for the appointment of three commissioners, to “ hold their offices until the next general election of county officers, when their successors shall be elected by the people, and every two (2) years thereafter said offices shall be filled by popular election.” The next general election of county officers referred to was held, according to section 1154 of the Code, in August, 1902, so that these commissioners were appointed to serve until that date, and their temporary commissions then terminated. We cannot assume that relators, who were originally elected by the county court, would hold over, and manifestly the provisional title of defendants has determined. It follows that the relief as prayed cannot now be granted. There are cases in quo warranto in which judgment of ouster has been entered although the term of the person lawfully entitled had expired, and also where informations have been retained, when the statute provided for fine or damages, but here the proceeding cannot now be maintained as on behalf of the public, and considered, as counsel insists it should be, as merely a contest between two sets of officials and not between the State and its officials, the state courts would be at libeity to treat it as abated, and the mere matter of costs cann^ availed of to sustain jurisdiction. See Boring v. Grijjit , 1 HeiskeH, 456, 461 ; State v. McConnell, 3 Lea, 332; »■ son County v. Perkins, 39 S. W. Rep. 347; State v. Lin sey, 103 Tennessee, 625, 635. . . Doubtless the question of the validity of the act of 190 is o importance, but it has been upheld by the highest ju icia tribunal of the State of Tennessee as consistent with t e s a constitution, and it affects only the citizens of that State. If we were to hold that the act could be subjected to e of the Fourteenth Amendment and that it could not stan UNION & PLANTERS’ BANK v. MEMPHIS. 71 189 U. S. Syllabus. test, we should do nothing more than reverse the decree below and remand the cause, and as such a judgment would be ineffectual, we must decline to intimate any opinion on the subject. “ The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.” Mr. Justice Gray, Kills v. Green, 159 U. S. 651, 653. We think this writ of error comes within the rule thus declared, and it is therefore Dismissed without costs to either party. UNION AND PLANTERS’ BANK u MEMPHIS. SAME v. SAME. APPEALS EROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH RCUI1 AND FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE. Nos. 67,221. Submitted March 20,1903.—Decided April 13,1903. CircuhTonT °f CltlzenshiP does not exist and the jurisdiction of the under the c lest» sole!y on the ground that the cause of action arose court XTt rftheUDited States’ anaPPeal lies directly to this shouldT L 7. 5 °f the Judiciai’y Act of 1891, and if an appeal decree Xi™t * t0 CirCUit Court of APPea’s and there go to of want of inU1-.JV1,lreverse decree, noton the merits, but by reason Judiciary Act 008917* 7 ^7 C°Urt‘ ** ** nOt the intention of the 1891 to allow two appeals in cases of that description. 189 U.S. OCTOBER TERM, 1902. Statement of the Case. The doctrine of res judicata under the decisions of the highest court of Tennessee is not applicable to taxes for years other than those under consideration in the particular case. The effect of a prior judgment of a state court as res judicata is a question of state, and not of Federal, law. Where a former judgment pleaded has no force or effect in the state courts of Tennessee as exempting a corporation from certain taxes other than as a bar to the identical taxes litigated in that suit, the courts of the United States can accord it no greater efficacy. The Union and Planters’ Bank of Memphis was incorporated under a charter granted by the General Assembly of the State of Tennessee in 1858, which contained the following provision: “ That said company shall pay an annual tax of one half of one per cent on each share of stock subscribed, which shall be in lieu of all other taxes.” The corporation was located in the city of Memphis, Shelby County, Tennessee, and that city, pursuant to an act of the legislature of Tennessee, assessed an ad valorem tax for the year 1899, for municipal purposes, on the capital stock of the bank. The bank, thereupon, filed its bill in the Circuit Court of the United States for the Western Division of the Western District of Tennessee, in which it was alleged that the law under which the assessment was made impaired the obligation of the contract created by the abovequoted clause of the charter. The bill further averred that in a former litigation between the bank and the city, wherein it was sought to enforce a municipal assessment of taxes on the capital stock of the bank for the years 1888, 1889 and 1890, it was adjudged by the Supreme Court of Tennessee that by the provision aforesaid the capital stock of the corporation was exempt from all general taxation. The record and judgment m that suit were set out in full, and pleaded as a final judicial e termination of the bank’s exemption from the payment of valorem taxes on its capital stock; and it was averred that t e judgment so pleaded was based on the identical claim of exemption now asserted, and on identically the same facts and con tions under which this assessment was made. The prayer was that the assessment be cancelled an com plainant be declared to be exempt from the payment to t e ci y of ad valorem taxes on its capital stock. UNION & PLANTERS* BANK v. MEMPHIS. 189 U. S. Opinion of the Court. 73 Defendants demurred, and the demurrer was sustained and the bill dismissed, November 6, 1900, whereupon complainant prayed and perfected an appeal to, and also took a writ of error from, the United States Circuit Court of Appeals for the Sixth Circuit, and the case was docketed there on or about November 27,1900. On February 11, 1901, complainant prayed and was granted an appeal from the decree of the Circuit Court directly to this court, the record was filed here, March 23, 1901, and the case is now No. 67. The case in the Circuit Court of Appeals was heard June 10, 1901, and the decree below was affirmed October 21, 1901. Ill Fed. Rep. 561. Thereupon complainant, appellant in that court, prosecuted an appeal from its decree to this court, and the case was docketed here January 13, 1902, and is now No. 221. Both cases were submitted, as one case, on printed briefs. Jir. William, H. Carroll and Mr. Tim, E. Cooper for appellant. Jfr. Lake E. Wright and Mr. John H. Watkins for appellees. Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. Diversity of citizenship did not exist, and the jurisdiction of t e Circuit Court rested solely on the ground that the cause of action arose under the Constitution of the United States. The appeal lay directly to this court under section five of the u iciary Act of March 3, 1891, and not to the Circuit Court o ppeals. American Sugar Refining Company v. New r (ms, 181 u. S. 277. Nevertheless an appeal having been prosecuted to the latter court and having there gone to decree, an appeal was allowed to this court because the judgment was o ma e final in that court by section six of the act. But the eing here, and the jurisdiction of the Circuit Court having 74 189 U.S. OCTOBER TERM, 1902. Opinion of the Court. depended on the sole ground that it arose under the Constitution, we are constrained to reverse the decree of the Circuit Court of Appeals, not on the merits, but by reason of the want of jurisdiction in that court. If this were not so, the right to two appeals would exist in every similar case notwithstanding, as we have repeatedly held, that such was not the intention of the act. Robinson v. Caldwelkl, 165 U. S. 359; loeb v. Trustee, 179 U. S. 472; American Sugar Refining Company v. Aew Orleans, supra. In Poilman's Palace Car Company v. Cent/rdl Transporta-tion Company, 171 IT. S. 138, an appeal was taken to this court and also to the Circuit Court of Appeals, and a motion was made in each court to dismiss the appeal, whereupon, by reason of the circumstances, we granted a writ of certiorari and brought up the record from the latter court before it had proceeded to decree. The question as to which was the correct route to reach this court became immaterial, and we disposed of the case on its merits. But in the present case the Circuit Court of Appeals went to decree, and we are obliged to deal with the appeal therefrom, in doing which the jurisdiction of that court necessarily comes under review. The questions on the merits are, however, presented for disposition on the direct appeal from the Circuit Court. In Shelby County v. Union and Planters' Bank, 161 U. S. 149, (1895,) it was decided that the capital stock of the bank was not exempt from ad valorem taxation by the provision of the charter in question and was liable to be taxed as the State might determine. Bank of Commerce v. Tennessee, 161 U. S. 134. But the bank objects that notwithstanding this court has thus held that the exemption asserted does not exist, it must nevertheless be recognized, in this case, as existing, because it was so determined by the judgment pleaded as res judicata. T e judgment thus relied on as a bar to this assessment is repo in Memphis v. Union and Pla/nters1 Bank, 91 Tennessee, 5 , (1892,) which involved the assessment of municipal taxes, or the years 1887 to 1891 inclusive, on the capital stock of t- e bank, and a privilege tax for the years 1889,1890 and 1 UNION & PLANTERS’ BANK v. MEMPHIS. 75 189 U. S. Opinion of the Court. The Supreme Court of Tennessee there held in deference to the supposed scope of the decisions of this court in Farrington v. Tennessee, 95 U. S. 679, (1877,) and in Bank v. Tennessee, 104 U. S. 493, (1881,) that the bank was exempted by the charter from being assessed by the State, county, or municipality, for any taxes except as specified. In Bank v. Memphis, 101 Tennessee, 154, (1898,) the conclusion announced in Shelby County v. Bank, 161 U. S. 149, was followed, and it was held to be the settled rule in Tennessee that the plea of res judicata is only applicable to the taxes actually in litigation, and is not conclusive in respect to taxes assessed for other and subsequent years. State v. Bank, 95 Tennessee, 221, 231. As the judgment relied on as res judicata was not so regarded in Shelby County v. Bank, it could not be properly so regarded in the present case; but, apart from that, it is enough that in Tennessee the doctrine of res judicata is not applicable to taxes for years other than those under consideration in the particular case, inasmuch as what effect a judgment of a state court shall ave as res judicata is a question of state or local law, and the taxes involved in this suit are taxes for years other than those involved in the prior adjudication. Phoenix Fire and Marine Insurance Company v. Tennessee, 161 U. S. 174. In New Orleans v. Citizens' Bank, 167 U. S. 371, referred to y appellant s counsel, no claim was made that the judgment re on would not have been res judicata in the state courts, and attention was particularly called to the fact that the rule ouisiana was in accord with the conception of res judicata expounded in that case. s the judgment pleaded had no force or effect in the Ten-C1our^s. °^ier than as a bar to the identical taxes rn t e suit, the courts of the United States can accord calf, efficacy- v. Newell, 173 U. S. 555; Met-v 153 U- 8- 671; Chicago & Alton R. R. Co. • Ferry Co., 108 U. S. 18; Rev. Stat. § 905. and 1S^10n over the alleged exemption has been protracted, hiffhfiHt^-k6018!0118 ^aVe ^een ren^ere(l in this court and in the “8 nbunal of Tennessee in respect of it. They are re 76 OCTOB ER TERM, 1902. Opinion of the Court. 189 U. S, viewed by Lurton, J., in the Circuit Court of Appeals, 111 Fed. Rep. 561. Decree of the Circuit Court in No. 67 affirmed. Decree of the Circuit Court of Appeals in No. 221 reversed with a direction to dismiss the appeal a/nd writ of error. MEXICAN CENTRAL RAILWAY COMPANY, LIMITED, v. DUTHIE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS. No. 336. Submitted March 23, 1903—Decided April 13, 1903. Under section 954, Rev. Stat., the Circuit Court has power in its discretion to allow plaintiff to amend his petition after judgment has been entered in his favor, but while the court still has control of the record, and it is not an abuse of such discretion to permit an amendment setting up plaintiff’s citizenship, the fact being established and residence only having been pleaded, and where it appears that had the amendment not been made as it was the Circuit Court of Appeals would have been constrained to reverse and remand with leave to make the amendment. The case is stated in the opinion of the court. Mr. Aldis B. Browne, Mr. Alexander Britton and Mr. Eben Richa/rds for plaintiff in error. Mr. Leigh Clark for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court. Duthie brought suit for the recovery of damages for person injuries in the Circuit Court of the United States f°r t e Western District of Texas against the Mexican Central I ai way Company, Limited ; and in his original complaint averre that he “ resides in El Paso, in El Paso County, State of Texas, MEXICAN CENTRAL RAILWAY v. DUTHIE. 77 189 U. S. Opinion of the Court. in the Western District of said State; ” and that defendant was a citizen of the State of Massachusetts. The cause was tried before a jury and resulted in a verdict and judgment thereon April 10,1902. The record shows “ that no further proceedings were had in said cause after the entry of said judgment until, to wit, the 17th day of April, 1902, on which day plaintiff filed his motion asking leave to amend his petition,” to the effect “that leave be granted him to now amend his said original and first amended petition by inserting therein the following : ‘ And is a citizen of said State and of the United States of America,’ after the allegation made in said pleading ‘ that plaintiff resides in El Paso, in El Paso County, State of Texas.’ ” In support of the motion plaintiff stated under oath “ that he is now and was at the date of the filing of his original petition herein, and was on the 22d day of July, 1901, the date of his injuries, a Iona fide citizen of the United States of America and of the State of Texas.” The court granted leave to so amend and defendant excepted. Thereupon defendant applied to the court to certify to this court the question of jurisdiction to amend, and to retain the judgment after such amendment; and a certificate was accordingly granted. If the complaint or petition had remained as it was originally ramed, and the case had then been carried to the Circuit Court 0 Appeals, that court would have been constrained to reverse e judgment and remand the cause for a new trial, with leave to amend. Hetealf v. Watertown, 128 U. S. 586; Horne v. Hammond Company, 155 U. S. 393. But plaintiff, discovering the defect in the averment before e case had passed from the jurisdiction of the Circuit Court, in f6 Stained leave to amend, and made the amend-ei1 • o that the only question is whether the Circuit Court power to allow the amendment. thp f ,sec^011 of the Revised Statutes it was provided that to a jC°Ur^ might “ at any time permit either of the parties pnnri^en any defect in the process or pleadings, upon such scribe*”118 S^a^’ *n discretion and by its rules, pre-contrni S^nce the trial court in the present case still had 0 e record, it had jurisdiction to act, and we may 78 189 U. S. OCTOBER TERM, 1902. Statement of the Case. add that we do not perceive that there was any abuse of discretion in permitting the amendment in the circumstances disclosed. Mexican Central Railway Company v. Pinkney} 149 U. S. 194, 201; Tremaine v. Hitchcock, 23 Wall. 518. If the statutes of Texas forbade such an amendment, the law of the United States must govern. Phelps v. Oaks, 117 U. 8. 236; Southern Pacific Company v. Denton, 146 U. 8. 202. The suggestion that defendant was cut off from trying the fact as to plaintiff’s citizenship is without merit. The record does not disclose that defendant sought to contest plaintiff’s affidavit, and for aught that appears the fact may have been conceded. Judgment affirmed. JAQUITH v. ALDEN. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIE8T CIRCUIT. No. 516. Submitted January 12,1903.—Decided April 27,1903. Payments on a running account, in the usual course of business, by a person whose property had actually become insufficient to pay his debts, where new sales succeeded payments and the net result was to increase his estate, and the seller had no knowledge or notice of the insolvency and no reason to believe an intention to prefer, are not preferences, which must be surrendered as a condition to the allowance of proof of claim, under the bankruptcy act of 1898. Pirie v. Chicago Title and Trust Company, 182 U. S. 438, in which the deci sion proceeded on the finding of facts made pursuant to clause o General Orders in Bankruptcy, XXXVI, distinguished. F. N. Woodward et al. filed their petition in bankruptcy and were adjudicated bankrupts November 26, 1901. They a become insolvent August 15, and on that day were not in debted to G. Edwin Alden, who, afterwards, in ignorance of the insolvency, made sales to Woodward et cd. and receiv payments from them therefor in the regular course of business, JAQUITH v. ALDEN. 79 189 U. S. Opinion of the Court. and without any idea or intention on the part of Alden of obtaining a preference thereby, the sales and payments being as follows: “ Sales. “Aug. 17, 1901. 28, “ Rubber Il . . $289 46 . . 657 89 Sept. 30, “ (( . . 644 28 Oct. 18, « ii . . 535 99 Oct. 18, « Cartage 50 31, “ Asbestine. . . 10 40 “ Payments. “ Sept. 4,1901. Payment of bill Aug. 17 . . $289 46 28, “ “ “ « 28 . . . 657 89 Oct. 29, « “ “ « Sept. 30 . . . 644 28 The merchandise sold Woodward et al. was manufactured by them, and the result of the transactions was to increase their estate in value. Alden petitioned to be allowed to prove his claim of $546.89. The referee disallowed the claim unless at least the amount of $633.88 was surrendered to the estate. The District Judge reversed the judgment of the referee and allowed the claim, an the decree of the District Court was affirmed by the Cir- Court Appeals, 118 Fed. Rep. 270, on the authority of u son v. Wyman, 111 Fed. Rep. 726. Thereupon an appeal o is court was allowed and a certificate granted under section 25, 5, 2. Mr. H. J. Jaquith, appellant, se. ^gene Johnson, Mr. Arthur T. Johnson and Mr. AhynzoR. Weed for appellee. mpnt ' PpIEF Justice Fuller, after making the foregoing statement, delivered the opinion of the court. acts found established that on August 15 the aggregate 80 OCTOBER TERM, 1902. Opinion of the Court. jgg p g °f th® property of the bankrupts was not, at a fair valuation sufficient in amount to pay their debts, but that Alden was ignorant of this, and in good faith and in the regular course of business sold material to the bankrupts, and received payment therefor, several times between August 15 and November 26, when the petition was filed, on which day the amount of $546.89 for material delivered shortly before had not been paid. All the material so sold to them was manufactured by the bankrupts and increased their estate in value. The question is whether the payments made to Alden (or either of them) were preferences within section 60 of the bankruptcy act of 1898, which must be surrendered under section 57^, before his claim could be allowed. Provisions of the act bearing on the subject are given below.* 1 1 “ Section la. The words and phrases used in this act and in proceedings pursuant hereto shall, unless the same be inconsistent with the context, be construed as follows.: . . . (9) ‘creditor1 shall include any one who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy; (10) ‘date of bankruptcy,’ or ‘time of bankruptcy,1 or ‘ commencement of proceedings,'or ‘bankruptcy,1 with reference to time, shall mean the date when the petition was filed; (11) ‘debt1 shall include any debt, demand, or claim provable in ‘bankruptcy’; . . . (15) a person shall be deemed insolvent within the provisions of this act whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, with intent to defraud, hinder or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts.” “ Sec. 3a. Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged such pre • erence; or (4) made a general assignment for the benefit of his creditors, or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground.” “ Sec. 60a. A person shall be deemed to have given a preference if, being 81 189 U. S. JAQUITH v. ALDEN. Opinion of the Court. In Pirie v. Chicago Title db Trust Company, 182 U. S. 438, the Circuit Court of Appeals for the Seventh Circuit had affirmed an order of the District Court for the Northern District of Illinois, rejecting a claim of Carson, Pirie and Company against the estate of Frank Brothers, bankrupts, and the case was then brought to this court on findings of fact and conclusions of law of the Circuit Court of Appeals made and filed “pursuant to the requirements of subdivision 3, Rule 36 of General Orders in Bankruptcy.” The three first of the findings were as follows: “First. That on February 11, 1899, August Frank, Joseph Frank and Louis Frank, trading as Frank Brothers, were duly adjudged bankrupts. “ Second. That for a long time prior thereto appellants carried on dealings with the said bankrupt firm, said dealings consisting of a sale by said appellants to said Frank Brothers of goods, wares and merchandise amounting to the total sum of $4403.77. • Third. That said appellants in the regular and ordinary insolvent, he has procured or suffered a judgment to be entered against !mse in favor of any person, or made a transfer of any of his property, an e effect of the enforcement of such judgment or transfer will be to a e any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. fore th f a bankruPt shall have given a preference within four months be-thp adh a-'n? a or after the filing of the petition and before his a Jnft-10n’ and the person receivinS it, or to be benefited thereby, or was in JT “f therein’ sba11 have had reasonable cause to believe that it tee and h 6 leieby g've a preference, it shall be voidable by the trus- “ c If 6 niap recover the property or its value from such person. the debtor ^CHltOr liaa been preferred, and afterwards in good faith gives becomes a nar/Tn1^ witbout security of any kind for property which maining unnaid°t J6 debt01’8 estates, the amount of such new credit re-off against th« & 16 the adjudication in bankruptcy may be set “Sec. S’?« amo'|ln.fc wbicb would otherwise be recoverable from him.” not be allowpd *1° aims creditors who have received preferences shall “Sec. 68a In n^SS SUcb creditors shall surrender their preferences.” estate of a bankr^ ®ase8 °t mutual debts or mutual credits between the debt shall be set off* & creditor the account shall be stated and one or paid.” against the other, and the balance only shall be allowed VOL. CLXXXIX—6 82 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. course of business, and within four months prior to the adjudication in bankruptcy herein, did collect and receive from said bankrupts as partial payment of said account for such goods, wares and merchandise so sold and delivered to said Frank Brothers, the sum of $1336.79, leaving a balance due, owing and unpaid, amounting to $3093.98.” It was further found that at the time this payment was made Frank Brothers were hopelessly insolvent to their knowledge; but that Carson, Pirie and Company had no knowledge of such insolvency nor had reasonable cause to believe that it existed, nor did they have reasonable cause to believe that the bankrupts by the payment intended thereby to give a preference; and that they had refused to surrender to the trustee the amount of the payment made to them by the bankrupts as a condition of the allowance of their claim. Upon the facts the Circuit Court of Appeals concluded as matter of law that the payment made “at the time and in the manner above shown, constituted a preference, and that by reason of the failure and refusal of Carson, Pirie and Company to surrender the preference they were not entitled to prove their claim. The judgment below was affirmed by this court, and it was held that a payment of money was a transfer of property, an when made on an antecedent debt by an insolvent was a pre-erence within section 60a, although the creditor was ignorant of the insolvency and had no reasonable cause to believe that a preference was intended. The estate of the insolvent, as it ex isted at the date of the insolvency, was diminished by the pay ment, and the creditor who received it was enabled to obtain a greater percentage of his debt than any other of the ere itors of the same class. , In the present case all the rubber was sold and e^e,e after the bankrupts’ property had actually become insu cie to pay their debts, and their estate was increased in va thereby to an amount in excess of the payments ma e. account was a running account, and the effect of the pay me was to keep it alive by the extension of new credits, wi net result of a gain to the estate of $546.89, and a oss o seller of tha,t ajnount less such dividends as the es a e p JAQUITH v. ALDEN. 83 189 U. S. Justices White and McKenna, dissenting. pay. In these circumstances the payments were no more preferences than if the purchases had been for cash, and, as parts of one continuous bona fide transaction, the law does not demand the segregation of the purchases into independent items so as to create distinct preexisting debts, thereby putting the seller in the same class as creditors already so situated, and impressing payments with the character of the acquisition of a greater percentage of a total indebtedness thus made up. We do not think the slight variation in the dates of sales and payments affords sufficient ground for the distinction put forward by counsel between the payments of September 4 and 28 and the payment of October 29 (which he concedes should be upheld) in their relation to the rubber furnished August 17 and 28 and September 30. All the material was sold and delivered after August 15, and neither of the items can properly be singled out as constituting outstanding indebtedness, payment of which operated as a preference. The facts as found in Pirie v. Trust Company were so entirely different from those existing here that this case is not controlled by that. In view of similar vital differences it has been held by the Circuit Court of Appeals for the First Circuit, Dwkson v. Wyman, 111 Fed. Rep. 726 ; Second Circuit, In re Sagor and Brother, 9 Am. Bank. Rep. 361 ; Third Circuit, (jansN. Ellison, 114 Fed. Rep. 734; Eighth Circuit, Kimball v. osenham Company, 114 Fed. Rep. 85, that payments on a running account, where new sales succeed payments and the ne result is to increase the value of the estate, do not constitute preferential transfers under section 60a. Judgment affirmed. Mr. Justice White and Mr. Justice McKenna, not being • ° COncur the reasons by which the court in the opinion r/ • ann°^nced distinguishes this case from that of Pirie v. trollT^ • Trust Co., and deeming the latter case con-troUmg m this, dissent. 84 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. In re KEY. ORIGINAL. No. 13. Argued April 6, 1903.—Decided April 27,1903. Judgment before a justice of the peace of the District of Columbia against Key and Scott, and appeal to the Supreme Court of the District with a Guaranty Company as surety on the undertaking on appeal. Judgment in the latter court in favor of Scott, and against Key and the Guaranty Company. Appeal to the Court of Appeals by Key alone without summons and severance or any equivalent, and motion to dismiss for want of parties, and want of jurisdiction of such an appeal. Dismissed on the latter ground in accordance with previous ruling. 'Held: That an application to this court for a writ of mandamus to the Court of Appeals to reinstate the appeal and decide the case on the merits must be denied. The case is stated in the opinion of the court. Hr. Frederic D. HcKenney for petitioner. Hr. Henry P-Blair and Hr. John Spalding Flannery were on the brief. Hr. William C. Prentiss for respondents. Mr. Chief Justice Fuller delivered the opinion of the court. William F. Roberts brought an action against J. S. Barton Key and James P. Scott, in February, 1901, before a justice of the peace of the District of Columbia, and recovered judgment for $196.30, whereupon Key and Scott carried the case by appeal to the Supreme Court of the District of Columbia1, giving an undertaking on appeal with the United States Fidelity and Guaranty Company as surety. The case was tried in t e District Supreme Court and resulted in a judgment in favor o Scott and against Key and the Guaranty Company. From this judgment Key alone prosecuted an appeal to the Cour o Appeals of the District of Columbia, without summons an severance or any equivalent. Roberts moved to dismiss on wo In re KEY. 85 189 U. S. Opinion of the Court. grounds: (1) The want of parties, Mason v. United States, 136 U. S. 581; Ha/rdee v. Wilson, 146 U. S. 179; (2) That the Court of Appeals had no jurisdiction on appeal from the judgment of the court below in such cases. The Court of Appeals had held in Groff v. Miller, 30 Wash. Law Rep. 434, that such an appeal could not be maintained, and accordingly dismissed the appeal in this case on the second ground. 30 Wash. Law Rep. 436. Key then applied to this court for leave to file a petition for mandamus requiring the Court of Appeals to reinstate the appeal and proceed to a hearing and determination of the same on the merits. Leave was granted, and due return has been made to a rule entered on the petition thereupon filed. The case could not have been brought here on appeal or writ of error. Code Dist. Col. § 233. And no application for certiorari was made under § 234. Act of March 3, 1901, 31 Stat. 1189, c. 854. The controversy in respect of appeals to the Court of Appeals from judgments in the Supreme Court of the District in cases appealed from justices of the peace, raised under sections 82 and 226 of the act of 1901, was not only disposed of by the Court of Appeals in Groff v. Miller, but determined by the repeal of section 82 by the act of June 30, 1902. 32 Stat. 520, c. 1329. The writ of mandamus cannot be used to perform the office of an appeal or writ of error, and does not lie to review a final judgment or decree sustaining a plea to the jurisdiction, even if no appeal or writ of error is given by law. It is not granted m doubtful cases, or where there is another adequate remedy, and whether it shall go or not usually rests in the sound discretion of the court. If sometimes demandable ex débito justitioe, i is certainly not on a record like this. American -Construction Company v. Jacksonville Railway Company, 148 U. S. 372, 379 ; In Te Petitioner, 155 U. S. 396, 403 ; High on Extr. Remedies, 3d ed. §9. Tested by these well settled principles, The rule must be discharged and the petition dismissed. 86 OCTOBER TERM, 1902. 189 U. & Syllabus. THE JAPANESE IMMIGRANT CASE.1 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOB THE DISTRICT OF WASHINGTON. No. 171. Argued February 24,1903.—Decided April 6,1903. 1. As the existing treaty with Japan expressly excepts from its operation any regulation, relating to police and public security, and as the various acts of Congress forbidding aliens of whatever country to enter the United States who are paupers or persons likely to become a public charge, are regulations for police and public security, aliens from Japan of the prohibited class have no right to enter or reside in the United States. Queer«, Whether, even in the absence of such a provision in the treaty, the “full liberty to enter, reside,” etc., clause refers to that class in either country who from habits or conditions are the object of police regulations designed to protect the general public against contact with dangerous or improper persons. 2. It has been firmly established by numerous decisions of this court that it is within the constitutional power of Congress to exclude aliens of a particular race from the United States; prescribe the terms and conditions upon which certain classes may come to this country; establish regulations for sending out of the country such aliens as come here in violation of law; and commit the enforcement of such provisions, conditions and regulations to executive officers, without judicial intervention. 3. An administrative officer, when executing the provisions of a statu involving the liberty of persons, may not disregard the fundamental principles of due process of law as understood at the time of the adoption of t e Constitution. Nor is it competent for any executive officer, at any tm® within the year limited by the statute, to arbitrarily cause an alien w o has entered the country, and has become subject in all respects to its JU risdiction, and a part of its population, although illegally here, to bear rested and deported without giving such alien an opportunity, appiopn ate to the case, to be heard upon the questions involving his right to and remain in the United States. Where, however, the alien had notice, although not a formal one, the cou cannot interfere with the executive officers conducting it. The o tions of the alien to the form of the investigation could have been pi sented to the officer having primary control of the case, or by an aP^ to the Secretary of the Treasury, and the action of the executive o ce is not subject to judicial review. 1 Docket title—Yamytaya v. Fisher. THE JAPANESE IMMIGRANT CASE. Si 189 U. S. Statement of the Case. This case presents some questions arising under the act of Congress relating to the exclusion of certain classes of alien immigrants. On the 11th day of July, 1901, appellant, a subject of Japan, landed at the port of Seattle, Washington; and on or about July 15, 1901, the appellee, an Immigrant Inspector of the United States, having instituted an investigation into the circumstances of her entering the United States, decided that she came here in violation of law, in that she was a pauper and a person likely to become a public charge—aliens of that class being excluded altogether from this country by the act of March 3,1891, 26 Stat. 1084, c. 551. The evidence obtained by the Inspector was transmitted to the Secretary of the Treasury, who, under date of July 23,1901, issued a warrant addressed to the Immigrant Inspector at Seattle, reciting that the appellant had come into the United States contrary to the provisions of the above act of 1891, and ordering that she be taken into custody and returned to Japan at the expense of the vessel importing her. The Inspector being about to execute this warrant, an application was presented in behalf of the appellant to the District Court of the United States for the District of Washington, Northern Division, for a writ of habeas corpus. The application alleged thaf the imprisonment of the petitioner was unlawful, and that she did not come here in violation of the act of 1891 or of any other law of the United States relating to the exclusion of aliens. The writ having been issued, a return was made by the Inspector stating that he had found upon due investigation and t e admissions of the appellant that she was a pauper and a person likely to become a pubic charge, and had “surreptitiously, clandestinely, unlawfully and without any authority, come into the United States; ” that “in pursuance of said testimony, admissions of the petitioner, Kaoru Yamataya, evidence, acts and circumstances,” he had decided that she had no right e within the territory of the United States and was a proper person for deportation; all which he (reported to the proper officers of the Government, who confirmed his decision, 88 OCTOBER TERM, 1902. Argument for Appellant. 189 U. 8. and thereupon the Secretary of the Treasury issued his warrant requiring the deportation of the appellant. That warrant was produced and made part of the return. The return of the Inspector was traversed, the traverse admitting that the Inspector had investigated the case of the petitioner and had made a finding that she had illegally come into this country, but alleging that the investigation was a “ pretended ” and an inadequate one; that she did not understand the English language and did not know at the time that such investigation was with a view to her deportation from the country; and that the investigation was carried on without her having the assistance of counsel or friends or an opportunity to show that she was not a pauper or likely to become a public charge. The traverse alleged that the petitioner was not in the United States in violation of law. A demurrer to the traverse was sustained, the writ of habeas corpus was dismissed, and the appellant was remanded to the custody of the Inspector. From that order the present appeal was prosecuted. Mr. Vere Goldtliwaite, with whom Mr. Harold Preston and Mr. Walter A. Keene were on the brief, for the appellant. This appeal raises the question of the constitutionality of the act of March 3, 1891, in relation to immigration and the importation of aliens under contract or agreement to perform labor, 26 Stat. 1084, and also involves the application of the Fifth Amendment to the Constitution of the United States to the facts presented by the record. We contend : 1. The provisions of the act of 1891 giving to inspection officers plenary power over the classes of aliens therein referred to, should be construed to extend only to aliens who have not effected an entrance into the United States. 2. The act of 1891 is unconstitutional. 3. Appellant is being deprived of her liberty without due process of law. I. The lower court followed United States v. Yamasalca^ 100 Fed. Rep. 404, but the facts in the case at bar clearly distinguish it therefrom. It is not. necessary for us on this appea to go so far as to contend that the Constitution requires that THE JAPANESE IMMIGRANT CASE. 89 189 U. S. Argument for Appellant. an alien shall have a “ judicial trial before a court ” before he may be deported ; but the question here presented is whether an alien who does not belong to any of the prohibited classes, who has lawfully entered the United States and is entitled to remain therein, may be arrested by a ministerial officer and deported, without notice of any investigation against him or opportunity to be heard in any form of proceeding whatsoever. Is it not entirely clear from the plain reading of this statute that Congress intended to make a distinction between aliens who had not and those who had effected a landing in the United States ? If no such distinction was intended, why did Congress use language which has and can be given no other meaning ? While a Japanese subject remains on board a Japanese vessel he is, in contemplation of law, on Japanese territory. When he lands on American soil he is subject to our laws and entitled to the protection of our Constitution. The word “ person ” as used in the Constitution includes aliens as well as citizens. Re AA Fong, 3 Sawyer, 144 ; Re Parrott, 1 Fed. Rep. 481; Ho Ah Kow v. Funan, 5 Sawyer, 552; Fong Yue Ting n. United States, 149 U. S. 698. Under the treaty between the United States and Japan, November 22,1894, and sec. 1977, Rev. Stat., when an alien of Japan effects a landing and is found dwelling in this country, he has, so far as concerns his life and liberty, all the rights of an American citizen. In recognition of this fact, Congress, w ien giving certain arbitrary powers to inspection officers, limited the exercise of these powers to the case of aliens who had not effected a landing. !• The act of 1891, above referred to, is unconstitutional, in that it operates to deprive appellant of her liberty without due process of law. While it may be difficult, if not impossible, to frame a definition of due process of law, it is nevertheless easy to point out certain requisites which must always be found in order to constitute due process of law, and foremost among these is the requirement that a person shall have notice and an opportunity ° e eard in any proceeding affecting his rights. Holden n. way, 169 U, S. 366; Greene n. Briggs, 1 Curtis, 311; Scott 90 OCTOBER TERM, 1902. 189 US. Argument for Appellant. v. Toledo.) 36 Fed. Rep. 385; Railroad Tax Cases, 13 Fed. Rep. 722; Myers n. Shields, 61 Fed. Rep. 713; Railway Co. n. Iowa, 160 U. S. 389 ; Hovey v. Elliott, 167 U. S. 409 ; Me Veig/i v. United States, 11 Wall. 259 ; Charles v. City of Marion, 98 Fed, Rep. 166; Stuart v. Palmer, 74 N. Y. 183; 2 Kent’s Comm. 13; Hagar n. Reclamation District, 111 U. S. 708. It is useless to multiply authorities upon this proposition; but we content ourselves with the statement that in the wilderness of authority upon this subject not one case can be found holding that where a person’s liberty is involved notice and an opportunity to be heard is not necessary in order to constitute due process of law. As the act of 1891 fails to provide for the giving of notice to or an opportunity to be heard by the persons whose right to liberty are thereby affected, the same is, therefore, unconstitutional and void. III. Whatever may be the ruling of this court as to the constitutionality of the act of 1891, it is contended by appellant that she is, as appears by the record, being deprived of her liberty in violation of the Fifth Amendment to the Constitution of the United States, in that she was not given any notice or The authorities hereinbefore cited sus-Here is a person found dwelling within V7A LUv L'lllLCU UiatVOj All V1ACDV OUU H CIO --- opportunity to be heard in the proceeding in which her right to liberty was tried, tain this contention. the United States ; she is arrested and imprisoned by a ministerial officer ; she is not permitted to see her friends or to consult with her attorneys; she is unable to speak or understan our language, and is ignorant of the cause of her imprisonment, and ignorant of the fact that any investigation is being made concerning her right to liberty. The officer does not give her any notice of the proceedings nor any opportunity to be hear, but goes about secretly collecting evidence against her, con sidering only such evidence as when unexplained, will sui 18 purpose. He takes advantage of her ignorance of our an guage and makes her give unintentional answers to questions which she does not understand. He states that he is ho mg her to appear as a witness in a criminal case against ano e party, thus deceiving her attorneys as to his intention. s THE JAPANESE IMMIGRANT CASE. 91 189 U. S. Argument for Appellant. result of the investigation made by this ministerial officer in his combined capacity of prosecutor, judge and jury, he makes a finding against appellant. Thereafter he removes his decision to a higher tribunal, to wit, the Secretary of Immigration, and has it there affirmed. From here he takes another appeal to the Secretary of the Treasury and has his decision again affirmed, and a warrant of deportation issued. Of all these proceedings appellant is ignorant. A few hours before the sailing of the vessel upon which it was intended by respondent to deport her, it is by chance learned that such a step is contemplated. It is confidently asserted that our records will be searched in vain for authorities sustaining such a proceeding, and its only parallel must be sought for in the history of the times antedating Magna Charta. Will the highest court of the land hold this proceeding to be due process of law ? It seems to us that to do so would be to strike a blow at the very foundation of free government. The appellant has, by treaty between our Government and the Empire of Japan, all the rights accorded by us to the citizens and subjects of the most favored nation. If respondent has the power which he has assumed to exercise with reference to appellant, then he may exercise the same power with reference to a citizen or subject of Great Britain, of Germany or of any other nation. By sec-1977, Rev. Stat., as above stated, appellant has, so far as any questions involved in this appeal is concerned, the same rights as an American citizen. Yick Wo v. Hopkins. 118 U. S. 369. It is pleaded that appellant failed to prosecute any appeal rom the decision of appellee, and is for that reason precluded om having such decision reviewed in any other manner, since . e act provides that the decision of inspection officers touching the right of an alien to land shall be final unless appeal be taken to the Secretary of the Treasury. t appears from the record not only that appellant was not given any notice of the proceedings taken against her, or any opportunity to be heard thereat, but that she had no knowl-ge whatever that an investigation had been conducted, that a nding had been made, or that the same had been carried to 92 OCTOBER TERM, 1902. Argument for Appellee. 189 U. S, the Secretary of the Treasury and there affirmed, until long after such steps had been taken and the Secretary had issued his warrant of deportation, and she was, within the space of a few hours’ time, to be deported. Can it be urged before this court that under such circumstances appellant’s only means of redress was by appeal to the Secretary of the Treasury after the Secretary had himself heard and decided the matter against her and issued his warrant of deportation, that by failing to appeal from a decision of which she had absolutely no knowledge, or means of knowledge, she is thereby forever deprived of her rights ? It is believed that the only precedent which appellee can find for such a contention is that which history records of the ruler who posted his decrees so high that his subjects were unable to read them, yet enforced strict compliance therewith. J/r. Assistant Attorney General Hoyt for the appellee. The law provides (act of March 3, 1891, 26 Stat. 1084) that all paupers or persons likely to become a public charge shall be excluded from the United States. The law provides among other things for the inspection of alien immigrants upon their arrival; that all aliens who may unlawfully come into the United States shall be sent back on the vessel by which they arrive, if practicable ; and that any alien who comes into the United States in violation of law may be returned at any time within a year. In the present case the girl came into the United States m violation of law if she was a pauper or likely to become a public charge, and so she was found to be by the inspector who investigated the case and whose decision, under the act o August 18, 1894, was final unless reversed on appeal to the Secretary of the Treasury. The general theory of habeas corpus submits only a na re question of law upon admitted facts. Necessarily, when t e instance court takes such action as in this case, the meaning i that the official obedience to the law and orderly process su ciently appear; that the action was with warrant of law, ea' ing the mere naked question of constitutionality; and there or that the counter allegations or matters of confession and avoi 93 THE JAPANESE IMMIGRANT CASE. 189 U. S. Argument for Appellee. ance have been regarded by the instance court as untrue, or not sufficiently appearing, or immaterial. The present case was necessarily ruled below by the Ya/ma-saka case, 100 Fed. Rep. 404. That decision held flatly that an alien landing surreptitiously may, writhin a year, be arrested and deported by the Secretary of the Treasury without judicial proceeding before a court. Counsel does not demand a court, but makes the old plea, familiar in all such cases, that here was an arbitrary arrest by a ministerial officer, and deportation without notice, hearing or due and just investigation. But the ministerial officer has been clothed with authority to determine and act, and this court has, in numerous cases, decided that the executive determination is final. Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698; Lem Noon Sing v. United States, 158 U. S. 538; Wong Wing v. United States, 163 U. S. 228 ; Fdk Yung Yo v. United States, 185 U. S. 296. Where the charge is that of delusive investigation and unfair and arbitrary decision, the court will not interfere. The presumption is that the result is proper. Lee Lung v. Patterson, 186 U. S. 193. The act of 1891 does not deprive persons of life, liberty or property without due process of law. Congress has the right to expel as well as to exclude aliens. Deportation merely enforces the withholding of the privilege of coming or remaining ere, which Congress has denied in its sovereign capacity for reasons of policy, founded in national self-protection. The authorities cited by counsel are wholly inapplicable, ey relate to taxing laws, property rights, state charges, and assessments of various kinds, without due notice and proceed-lngs. The court has held time and again that the executive proceeding in these cases is due process of law, and that the exc usion and expulsion of aliens are the exercise of constitu-ional power. Nishimura Ekiu v. United States, 142 U. S. 651. u icial statements as to property and liberty under entirely erent circumstances do not remotely affect the present case, o ong as the national policy and law as to immigration stand, ere is no reason for opposing argument. lhe treaty with Japan of 1894, Art. I, 29 Stat. 848, is nec 94 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. essarily subject to the special exceptions and qualifications of our immigration laws relative to excluded classes of aliens. Mk. Justice Harlan, after making the foregoing statement, delivered the opinion of the court. It will conduce to a clear understanding of the questions to be determined if we recall certain legislation of Congress relating to the exclusion of aliens from the United States, and to the treaty of 1894 between Japan and the United States. By the Deficiency Appropriation Act of October 19, 1888, c. 1210, it was provided that the act of February 23,1887, c. 220, amendatory of the act prohibiting the importation and immigration of foreigners and aliens under contract or agreement to perform labor in the United States, its Territories, and the District of Columbia, 24 Stat. 414, be so amended “ as to authorize the Secretary of the Treasury, in case he shall be satisfied that an immigrant has been allowed to land contrary to the prohibition of that law, to cause such immigrant within period of one year after landing or entry, to be taken into custody and returned to the country from whence he came, at the expense of the owner of the importing vessel, or, if he entered from an adjoining country, at the expense of the person previously contracting for the services.” 25 Stat. 566. By the first section of the act of Congress of March 3,1891, c. 551, amendatory of the various acts relating to immigration and importation of aliens under contract or agreement to perform labor, it was provided : “ That the following classes of aliens shall be excluded from admission into the United States, in accordance with the existing acts regulating immigration, other than those concerning Chinese laborers: All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been' convicted of a felony or o er infamous crime or misdemeanor involving moral turpitu e, polygamists, and also any person whose ticket or passage paid for with the money of another or who is assisted byot ers to come, unless it is affirmatively and satisfactorily shown on THE JAPANESE IMMIGRANT CASE. 95 189 U. S. , Opinion of the Court. special inquiry that such person does not belong to one of the foregoing excluded classes, or to the class of contract laborers excluded by the act of February twenty-sixth, eighteen hundred and eighty-five, (23 Stat. 332.) . . . ” 26 Stat. 1084. By the eighth section of that act it was provided : “ That upon the arrival by water at any place within the United States of any alien immigrants it shall be the duty of the commanding officer and the agents of the steam or sailing vessel by which they came to report the name, nationality, last residence, and destination of every such alien, before any of them are landed, to the proper inspection officers, who shall thereupon go or send competent assistants on board such vessel and there inspect all such aliens, or the inspection officers may order a temporary removal of such aliens for examination at a designated time and place, and then and there detain them until a thorough inspection is made. . . . The inspection officers and their assistants shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record. During such inspection after temporary removal the superintendent shall cause such aliens to be properly housed, fed, and cared for, and also, in his discretion, such as are delayed in proceeding to their destination after inspection. All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be na unless appeal be taken to the superintendent of immigra-f°a’, W^,ose actæn be subject to review by the Secretary 0 6 reasury. It shall be the duty of the aforesaid officers th >ag^S such vessel to adopt due precautions to prevent th6 any a^en immigrant at any place or time other offiD deSignated by inspection officers, and any such a£ent or Person in charge of such vessel who shall imin^ nowin^ or negligently land or permit to land any alien tu .lgrant.at any place or time other than that designated by and °®cers’ sllall be deemed guilty of a misdemeanor orbv* • by a fine not exceeding one thousand dollars, both ^°nmen^. ^°r a term n°i; exceeding one year, or by uc fine and imprisonment, , , , ” Stat, 1085, 96 189 U.S. OCTOBER TERM, 1902. Opinion of the Court. By the tenth section it is provided that “ all aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in.” The eleventh section of the same act provided: “ That any alien who shall come into the United States in violation of law may be returned as by law provided, at any time within one year thereafter, at the expense of the person or persons, vessel, transportation company, or corporation bringing such alien into the United States, and if that cannot be done, then at the expense of the United States; and any alien who becomes a public charge within one year after his arrival in the United States from causes existing prior to his landing therein shall be deemed to have come in violation of law and shall be returned as afore- said.” 26 Stat. 1084. In the Sundry Civil Appropriation Act of August 18, 1894, c. 301, was the following provision: “ In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury.” 28 Stat. 372,390. Then came the treaty between the United States and the Empire of Japan, concluded November 23,1894, and proclaimed March 21, 1895, and which by its terms was to go into operation July 17, 1899. By the first article of that treaty it was provided: “ The citizens or subjects of each of the two high contracting parties shall have full liberty to enter, travel or resi e in any part of the territories of the other contracting party, and shall enjoy full and perfect protection for their persons an property.” 29 Stat. 848. But by the second article it was declared: “ It is, however, understood that the stipulations contained in this and the preceding article do not in any way affect the laws, ordinances and regulations with regard to t the immigration of laborers, police and public security w w are in force or which may hereafter be enacted in either o two countries.” 29 Stat. 849. 1. From the above acts of Congress it appears that among THE JAPANESE IMMIGRANT CASE. 97 189 U. S. Opinion of the Court. I the aliens forbidden to enter the United States are those, of | whatever country, who are “ paupers or persons likely to be-I come a public charge.” We are of opinion that aliens of that I class have not been given by the trbaty with Japan full liberty to enter or reside in the United States; for that instrument expressly excepts from its operation any ordinance or regulation relating to “ police and public security.” A statute excluding paupers or persons likely to become a public charge is manifestly one of police and public security. Aside from that I specific exception, we should not be inclined to hold that the provision in the treaty with Japan that the citizens or subjects of each of the two countries should have “ full liberty to enter, travel or reside in any part of the territories of the other contracting party,” has any reference to that class, in either country, who from their habits or condition are ordinarily or properly the object of police regulations designed to protect the general public against contact with dangerous or improper persons. 2. The constitutionality of the legislation in question, in its general aspects, is no longer open to discussion in this court. That Congress may exclude aliens of a particular race from the United States; prescribe the terms and conditions upon which certain classes of aliens may come to this country ; establish regulations for sending out of the country such aliens as come ere in violation of law; and commit the enforcement of such provisions, conditions and regulations exclusively to executive t* judicial intervention, are principles firmly es- rr ,1S derisions of this court. Nishimura Ekiu v. uTn States, 142 U. 8. 651 j Fong Yue TingN. United States, U. 8. 698; Lem Moon Sing v. United States, 158 U. S. 538; /W v. United States, 163 U. S. 228; Fok Yung Yo v. United States, 185 U. S. 296, 305. th^ Nishimiira?s case the court said: “The supervision of hvV misslou aliens into the United States may be entrusted ffpn °^ress rither to the Department of State, having the of th r?anagement foreign relations, or to the Department rejenlV reaSUr^’ charged with the enforcement of the laws guiatmg foreign commerce; and Congress has often passed VOL. CLXXXIX—7 98 189 U.S. OCTOBER TERM, 1902. Opinion of the Court. acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs and to inspectors acting under their authority.” After observing that Congress, if it saw fit, could authorize the courts to investigate and ascertain the facts on which depended the right of the alien to land, this court proceeded : “ But, on the other hand, the final determination of those facts may be entrusted by Congress to executive officers ; and in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to reexamine or controvert the sufficiency of the evidence on which he acted. Martini. Mott, 12 Wheat. 19, 31; Philadelphia eft Trenton Railroad v. Stump son, 14 Pet. 448, 458; Benson v. McMahon, 127 U. S. 457 ; In re Oteiza, 136 U. S. 330. It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the National Government. As to sue persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. Murray v. Hoboken Co., 18 How. 272; Hdten v. Merritt, 110 U. S. 97.” In Lem Moon Sing's case it was said : “ The power of gress to exclude aliens altogether from the United States, or prescribe the terms and conditions upon which they way come to this country, and to have its declared policy in that regar enforced exclusively through executive officers, without ju ici^ intervention, is settled by our previous adjudications. D in Fok Yung Yds case, the latest one in this court, it w said : “ Congressional action has placed the final deterwwa io of the right of admission in executive officers, without ju THE JAPANESE IMMIGRANT CASE. 99 189 U. S. Opinion of the Court. intervention, and this has been for many years the recognized and declared policy of the country.” What was the extent of the authority of the executive officers of the Government over the petitioner after she landed ? As has been seen, the Secretary of the Treasury, under the above act of October 19, 1888, c. 1210, was authorized, within one year after an alien of the excluded class entered the country, to cause him to be taken into custody and returned to the country whence he came. Substantially the same power was conferred by the act of March 3, 1891, c. 551, by the eleventh section of which it is provided that the alien immigrant may be sent out of the country, “ as provided by law,” at any time within the year after his illegally coming into the United States. Taking all its enactments together, it is clear that Congress did not intend that the mere admission of an alien, or his mere entering the country, should place him at all times thereafter entirely beyond the control or authority of the executive officers of the Government. On the contrary, if the Secretary of the Treasury became satisfied that the immigrant had been allowed to land contrary to the prohibition of that law, then he could at any time within a year after the landing cause the immigrant to be taken into custody and deported. The immigrant must e taken to have entered subject to the condition that he might e sent out of the country by order of the proper executive 0 cer if within a year he was found to have been wrongfully admitted into or had illegally entered the United States. These 'ere substantially the views expressed by the Circuit Court of iAnr\ f°r Circuit in United States v. Yamasaka, 100 Fed. Rep. 404. al/d ^^ded, however, that in respect of an alien who has hem an(tod it is consistent with the acts of Congress that depoTh'6 ^ePOr^e(^ without previous notice of any purpose to by / lm’ an<^ ^ut any opportunity on his part to show with t^e^en^ evidence before the executive officers charged in viol +• eXecu^on the acts of Congress, that he is not here provisf 10f ^aW ’ that the deportation of an alien without °n or such a notice and for an opportunity to be heard OCTOBER TERM, 1902. 189 U.S, Opinion of the Court. muoMstsLeuL wim ins uue proves» ui raw required oy me xx T?ifthn^fcendment of the Constitution. Leaving on one side the question whether an alien can rightfully invoke the due process clause of the Constitution who has entered the country clandestinely, and who has been here for too brief a period to have become, in any real sense, a part of our population, before his right to remain is disputed, we have to say that the rigid construction of the acts of Congress suggested by the appellant are not justified. Those acts do not necessarily exclude opportunity to the immigrant to be beard, when such opportunity is of right. It was held in Yunaji Lessee v. Hoboken Land eft Improvement Co., 18 How. 272,280, 281, 283, that “ though ‘ due process of law ’ generally implies and includes actor, reus, Judea;, regular allegations, opportunity to answer and a trial according to some course of judicial proceedings, yet this is not universally true; ” and that “ though, generally, both public and private wrong are redressed through • judicial action, there are more summary extra-judicial remedies for both.” Hence, it was decided in that case to be consistent with due process of law for Congress to provide summary means to compel revenue officers—and in case of default, their sureties—to pay such balances of the public money as might be in their hands. Now, it has been settled that the power to exclude or expel aliens belonged to the political department of the Government, and that the order of an executive officer, inyes with the power to determine finally the facts upon which an alien’s right to enter this country, or remain in it, depen e, was “ due process of law, and no other tribunal, unless express y authorized by law to do so, was at liberty to reexamine t e evidence on which he acted, or to controvert its sufficiency Fong Yue Ting v. United States, 149 U. S. 698, 713; imura Ekiu v. United States, 142 U. S. 651, 659; Lm Sing v. United States, 158 U. S. 538, 547. But this corn* never held, nor must we now be understood as holding, a administrative officers, when executing the provisions 0 *8. ute involving the liberty of persons, may disregard the » mental principles that inhere in “due process of law understood at the time of the adoption of the Consti u 1 THE JAPANESE IMMIGRANT CASE. 101 189 U. S. Opinion of the Court. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends—not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore, it is not competent for the Secretary of the Treasury or any executive officer, at any time within the year limited by the statute, arbitrarily to cause an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized. This is the reasonable construction of the acts of Congress here in question, and they need not be otherwise interpreted. In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution. An act of Congress must be taken to be constitutional unless the contrary plainly and palpably appears. The words here used do not require an interpretation that would invest executive or administrative officers with the absolute, arbitrary power implied in the contention of the appellant. Besides, t e record now before us shows that the appellant had notice, a t ough not a formal one, of the investigation instituted for t e purpose of ascertaining whether she was illegally in this country. The traverse to the return made by the Immigration nspector shows upon its face that she was before that officer pen ing the investigation of her right to be in the United tes, and made answers to questions propounded to her. It th s^e P^ea(Is a want of knowledge of our language ; at s e did not understand the nature and import of the ques-10118 propounded to her; that the investigation made was a 102 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. “ pretended ” one; and that she did not, at the time, know that the investigation had reference to her being deported from the country. These considerations cannot justify the intervention of the courts. They could have been presented to the officer having primary control of such a case, as well as upon an appeal to the Secretary of the Treasury, who had power to order another investigation if that course was demanded by law or by the ends of justice. It is not to be assumed that either would have refused a second or fuller investigation, if a proper application and showing for one had been made by or for the appellant. Whether further investigation should have been ordered was for the officers, charged with the execution of the statutes, to determine, ject to judicial review. Their action in that regard is not sub- . ________ _______ Suffice it to say, it does not appear that appellant was denied an opportunity to be heard. And as no appeal was taken to the Secretary from the decision of the Immigration Inspector, that decision was final and conclusive. If the appellant’s want of knowledge of the English language put her at some disadvantage in the investigation conducted by that officer, that was her misfortune, and consti tutes no reason, under the acts of Congress, or under any rue of law, for the intervention of the court by habeas corpus. e perceive no ground for such intervention—none for the conten tion that due process of law was denied to appellant. The judgment is „ , J 6 Affirmed. Mr. Justice Brewer and Mr. Justice Peckham dissented. OREGON &c. R. R. v. UNITED STATES. No. 1. 103 189 U. S. Opinion of the Court. OREGON AND CALIFORNIA RAILROAD COMPANY -y. UNITED STATES. No. 1. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 186. Argued March 4, 1903.—Decided April 6,1903. In a suit brought under the act of Congress of March 3, 1887, c. 376, to compel the reconveyance of lands covered by patent issued February 20, 1893 on the ground that it included land to which there were adverse claims of settlers to the land on which they respectively resided and which the United States now claimed for them, Held: (1) That under the land grant acts the railroad company did not acquire and could not have acquired an interest in specific sections of land within the indemnity limits specified in the grant before their actual and approved selection undei’ the direction of the Secretary of the Interior, prior to the date of occupancy by the respective settlers. (2) No right of the railroad company attaches or can attach to specific lands within indemnity limits until there is a selection under the . T,dlrectl0n or with the approval of the Secretary of the Interior. J e rights which bona fide occupancy gave to the settler under the act of 1866 are not defeated by a mere selection afterwards of the land by the railroad company—the settler having, after the lands were surveyed, promptly taken the necessary steps to protect his rights under the homestead law. In such case, the entry made under these laws relates back to the date of the settlement of the lands. ) cannot be claimed that all the lands within the indemnity limits were requited to supply deficits, when there had been no adjust-en and determination of the amount of lieu lands required prior 0 his bona fide occupancy of the land. The case is stated in the opinion of the court. Maxwell Evarts for appellant. Assistant Attorney Russell for appellee. Justice Harlan delivered the opinion of the court. y act of Congress of March 3, 1887, c. 376, it was pro- 104 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. vided that if, at the completion of the adjustments of land grants thereby directed to be made, or sooner, it appeared that lands had been from any cause erroneously certified or patented to or for any company claiming by, through or under grant from the United. States to aid in the construction of a railroad, it should be the duty of the Secretary of the Interior to thereupon demand from such company a relinquishment or reconveyance to the United States of all such lands, whether within granted or indemnity limits; and if the company did not reconvey within ninety days after demand made, it should thereupon be the duty of the Attorney General to commence and prosecute in the proper courts the necessary proceedings to cancel the patents, certification or other evidence of title theretofore issued for the lands, and to restore the title thereof to the United States. 24 Stat. 556, c. 376. In United States n. Missouri dec. Railway, 141 U. S. 360, 380, 382—which was an action brought by the United States after the passage of the above statute to have certain patents for land cancelled—this court, after observing that as to some of the lands the United States appeared to have a direct interest in them, said : “ As to others, it is under an obligation to claimants under the homestead and preemption laws to un o the wrong alleged to have been done by its officers, in violation of law, by removing the cloud cast upon its title, by the patents in question, and thereby enable it to properly administer these lands, and to give clear title to those whose rights, under t ose laws, may be superior to those of the railway company, suit, therefore, to obtain a decree annulling the patents in ques tion, so far as it is proper to do so, was required by the u y the Government owed as well to the public as to the indivi ua who acquired rights, which the patents, if allowed to stan , may defeat or embarrass.” Reference was made in that . United States v. San Jacinto Tin Co., 125 U. 8. 273, , which it was held that the United States could sue to se as^ a patent improperly issued, where it appeared that there was obligation on the part of the United States to the pu c, o any individual, or where it had any interest of its own, > to United States v. Be Joe, 127 U. S. 338, 342, in w ic OREGON &c. R. R. r. UNITED STATES. No. 1. 105 189 U. S. Opinion of the Court. held that patents procured by fraud could be cancelled at the suit of the United States where that was necessary to be done in order that it might fulfill its obligations to others. The court then observed: “ These principles equally apply where patents have been issued by mistake, and they are specially applicable where, as in the present case, a multiplicity of suits, each one depending upon the same facts and upon the same questions of law, can be avoided, and where a comprehensive decree, covering all contested rights, would accomplish the substantial ends of justice.” See also United States v. Oregon dec. Railroad Co., 116 U. S. 28. In this state of the law, the present suit was brought by the United States against the Oregon and California Railroad Company in order to obtain a decree cancelling certain patents for lands, which, it was alleged, had been illegally and by mistake issued in the name of the United States to that company, which succeeded to the rights of the Oregon Central Railroad Company. The case was heard upon a stipulation as to evidence, from which the following facts appear: By the act of Congress of July 25, 1866, c. 242,14 Stat. 239, the California and Oregon Railroad Company, and such company organized under the laws of Oregon as the Legislature of the latter State designated, were authorized to locate, construct and maintain a railroad and telegraph line between Portland, regon, and the Central Pacific Railroad Company in California. or the purpose of aiding in the construction of that line, ongress granted to those companies, their successors and assigns, every alternate odd-numbered section of public lands, not minera, to the amount of twenty sections per mile, (ten on each of th ° ra^roa(^ Bne. But the act provided that when any “to h ^ernate sections or parts of sections should be found setil aVe ^.een ¿5rante 1893, the Commissioner of the Land Oince and the Secretary of the Interior having approved the ections made by the railroad company, a patent was issued conveying to it all the lands in dispute. But when the company s ists were approved neither the Commissioner nor the ecre ary had any knowledge of the adverse claims of the above wl-T’S,,° tbe Janc*s upon which they respectively resided, and ich the United States now claims for them. the n t €„27th day of October, 1893, the land grant made by being still unadjusted, the Commissioner of the of th i T ^emandcd of the railroad company a reconveyance an covered by the patent of 1893 upon the ground 110 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. that the patent to it had been erroneously issued. The company refused to reconvey, and claims to be the owner of such lands. Hence the present suit to have that patent cancelled. The Circuit Court, upon final hearing, found the equities of the case to be with the United States, and a decree was entered cancelling the patent issued to the Oregon and California Railroad Company. That decree was affirmed by the Circuit Court of Appeals, 109 Fed. Rep. 514. 1. Some of the questions referred to in argument as bearing upon the issues presented by the record have been determined by decisions of this court rendered since this litigation commenced. In Hewitt n. Schultz, 180 U. S. 139, which related to the grant of lands made to the Northern Pacific Railroad Company, by the act of July 2, 1864, c. 217, 13 Stat. 365, this court accepted the construction of that act as adopted and adhered to by the Land Department, and held that the Secretary of the Interior had no power, simply upon the definite location of the Northern Pacific Railroad, to withdraw from the operation of the preemption and homestead laws lands within the indemnity limits of the road as defined by Congress. Northern Pacific Railroad Co. v. Miller, 7 L. D. 100, 125; Northern Pacific Railroad Co. v. Domis, 19 L. D. 87, 90. In the present case, the line of the railroad, opposite to which are the lands here in dispute, was definitely located in 1870, while (with the exception of one tract, about which the railroad company makes no question) the lands in dispute were not settled upon until after that year. We have seen that upon acceptance of the map o definite location the Secretary of the Interior, according to t e stipulated facts, made an order (which was duly received at e local land office) withdrawing all the odd-numbered sections within thirty miles on each side of the road shown on the map of survey and definite location, from sale or location, preenip tion or homestead entry. That withdrawal included t e numbered sections in the indemnity limits, within w 10 . lands in dispute were situated. We hold on the aut °rl X Hewitt n. Schultz that it was beyond the power of the Secret» y to make such an order in respect of lands within the in emn OREGON &c. R. R. v. UNITED STATES. No. 1. Ill 189 U. S. Opinion of the Court. limits of the grant made by the act of 1866. The reasoning in that case, touching this proposition, applies to the case now before us. In 1887 the Secretary, as if to remove the apparent obstacle placed in the way of preemption and homestead settlers created by the order of 1870, made an order revoking the previous one of withdrawal so far as it related to indemnity limits, and declaring the odd-numbered sections lying within the entire indemnity limits of the grant restored to the public domain and subject to preemption and homestead entry, as well as to the provisions of the act of 1866. We need not discuss here the question of the power of the Secretary of the Interior to revoke an order of withdrawal once legally made, notice whereof had been given at the local land office. It is sufficient to say that the railroad company did not by the order of 1870, relating to lands within the indemnity limits, acquire an interest in any particular odd-numbered sections within those limits; nor did that order prevent the bona fide occupancy by settlers of odd-numbered sections within such limits up to the time of the approval of selections made by the railroad company of lieu lands to supply any deficit in the place limits. In Nelson v. Northern Pacific Railway, 188 U. S. 108, deci ed at the present term of the court, it was held that the act o 1864 making a land grant to the Northern Pacific Railroad Company, and the act of May 14, 1880, c. 89, for the relief of se ers on the public lands, recognized the right at any time prior to definite location to settle upon the unsurveyed public an s embraced by the grant of 1864, notwithstanding there o as, at the time, in existence an order of withdrawal, based y upon a map of general route not issued pursuant to any aJ^GSS irecti°n Congress; provided such settlement was int«.0??4111 res^dence 011 the land, in good faith, with the benefit°n Par^ ^ie settler to avail himself of the veved § Th* ° ^°.mes^ead law as soon as the lands were sur-erLi /T5 decision rested mainly on the ground that Con-«Af+iGn ed ac^ 1864 to protect the right of bona ^eptedbef°re the railroad comPany had, hy an Dartinni P Ot definite location, obtained a vested interest in Particular odd-numbered sections granted. 112 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. These principles are applicable to the present case if, as contended by the United States, the railroad company did not acquire, and could not have acquired, an interest in specific sections of lands within the indemnity limits before their actual and approved selection, under the direction of the Secretary prior to the date of occupancy by the respective settlers. 2. We have seen, from the stipulated facts, that it was not until 1892 that the railroad company made its selection of lands within the indemnity limits to supply deficiencies in its place or granted limits. But this occurred after each one of the entrymen, whose rights the Government is now seeking to protect, had made his settlement with the intention to follow it up by a Iona fide entry under the homestead laws. In other words, the lands were “occupied by homestead settlers” (to use the words of the granting act of 1866) at the time they were selected by the railroad company. Now, it has long been settled that while a railroad company, after its definite location, acquires an interest in the odd-numbered sections within its place or granted limits—which interest relates bac to the date of the granting act—the rule is otherwise as to lands within indemnity limits. As to lands of the latter class, the company acquires no interest in any specific sections unt a selection is made with the approval of the Land Department; and then its right relates to the date of the selection. n nothing stands in the way of a disposition of indemnity lan s, prior to selection, as Congress may choose to make. In !/an v. Railroad Company, 99 U. S. 382, which was a contest as to lands within the indemnity limits, this court said: t within the secondary or indemnity territory where that e ciency was to be supplied. The railroad company had no an could not have any claim to it until specially selec as was, for that purpose.” And the reason given was that w the road was located and the maps were made, the rl& the company to the odd sections first named became -fixed and absolute. With respect to the ‘ lieu lan s, as are called, the right was only a float, and attached D°nner cific tracts until the selection was actually made in t e m prescribed.” In St. Paul Railroad v. Winona RadroM, OREGON &c. R. R. v. UNITED STATES. No. 1. 113 189 U. S. Opinion of the Coui’t. U. S. 720, 731, the court, referring to this principle, said: “ The reason of this is that, as no vested right can attach to the lands in place—the odd-numbered sections within six miles of each side of the road—until these sections are ascertained and identified by a legal location of the road, so in regard to the lands to be selected within a still larger limit, their identification cannot be known until the selection is made. It may be a long time after the line of the road is located before it is ascertained how many sections, or parts of sections, within the primary limits have been lost by sale or preemption. It may be still longer before a selection is made to supply this loss.” After observing that twenty years expired in that case after the location of the road before any selection of lieu lands was made, the court added: “Was there a vested right in this company, during all this time, to have not only these lands, but all the other odd sections within the twenty-mile limits on each side of the line of the road, await its pleasure ? Had the settlers in that populous region no right to buy of the Government because the company might choose to take them, or might, after all this delay, find out that they were necessary to make up deficiencies in other quarters ? How long were such lands to be withheld from market, and withdrawn from taxation, and forbidden to cultivation? ” To the same effect are the following cases: Grinnell v. Railroad Co., 103 U. S. 739; Cedar Rapids Railroad v. Herring, 110 U. S. 27; Kansas flw/w y. Atchison Railroad, 112 U. S. 414, 421; Sioux City &c. Railroad v. Chicago &c. Railroad, 117 IT. S. 406, 408; v. Winona &c. Railroad, 117 U.S. 228, 232 ; Wiscon, n Railroad v. Price County, 133 U. S. 496, 508, 513; Nelson th a™ Railway, above cited. Having regard to e a ju ged cases, it is to be taken as established that, unless road1*"186 eXPress^T declared by Congress, no right of the rail-indemC°?1Prn^ a^ac^es or can attach to specific lands within or whS lra*tS unt^ there is a selection under the direction 0 -r #e aPProval of the Secretary. (exc contended that as the selection by the company eP as to the tract which was occupied in 1869, before any vol. clxxxix—8 114 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. selection by the company of lieu lands) was prior to the application by the respective settlers for entry under the homestead laws, its right to the lands in question was superior to that asserted by the settlers. This view is completely met by the fact that the settler, by prior occupancy in good faith, could avail himself of the homestead acts whenever, by an official survey, the way is opened by the Government for him to do so, and by the fact that, within ninety days after these lands were surveyed, he filed in the proper office his application to enter them under the homestead laws of the United States. He moved with due diligence to protect and perfect the right acquired by his occupancy of the land with the intention to avail himself of the benefit of those laws. That right was not to be affected or impaired by the fact that the lands were not surveyed at the date of occupancy. Nelson v. Northern Pacific Bailway, above cited; Ard v. Brandon, 156 U. S. 537, 543; Tarpey v. Madsen, 178 U. S. 215, 219. In the Ard case the court said: “ The law deals tenderly with one who, in good faith, goes upon the public lands, with a view of making a home thereon. If he does all that the statute prescribes as the condition of acquiring rights, the law protects him in those rights, and does not make their continued existence depend alone upon the question whether or no he takes an appeal from an adverse decision of the officers charged with the duty of acting upon his application.” In the Tarpey case it was said that the right of one who has actually occupied [public lands], with an intent to make a homestead or preemption entry, cannot be defeated by the mere lack of a place in which to make a recor o his intent; ” that if a settler was in possession before definite location, “ with a view of entering it as a homestead or pre emption claim, and wras simply deprived of his ability to ma e his entry or declaratory statement by the lack of a loca an office, he could undoubtedly, when such office was estabhs > have made his entry or declaratory statement in such way as to protect his rights.” So, if the condition of the lands, unsurveyed, prevents the making by a l)ona fide occupan o proper application of record to enter them under the homes ea laws his rights will not be lost, if, after the lands are survey , OREGON &c. R. R. v. UNITED STATES. No. 1. 115 189 U. S. Opinion of the Court. he applied in due time to enter the lands under those laws. And such has been held to be the object and effect of the act of May 14, 1880, c. 89, 21 Stat. 140. We could not otherwise adjudge in this case without holding that the mere selection of the lands by the railroad company displaced or destroyed the rights of a bona fide settler arising from previous occupancy with the intention of making the required homestead entry whenever he was permitted to do so. We cannot so hold. We adjudge that the rights which bona fide occupancy gave to the settler under the act of 1866 are not defeated by a mere selection afterwards of the lands by the railroad company—the settler having, after the lands were surveyed, promptly taken the necessary steps to protect his rights under the homestead laws. And in such case, the entry made under those laws, relates back to the date of settlement on the lands. It was so substantially held in Nelson n. Northern Pacific Railway, above cited. 4. It is also said that all the lands within the indemnity limits were required to supply the deficit in place limits arising from t e disposition prior to definite location by sale and otherwise of lands within the granted limits. But the extent to which ieu lands could be required to supply such deficit in place lands cou not be properly or legally determined until there was an a justment of the grant of lands in respect of place limits. In any event, no such adjustment having taken place prior to the ate o the settler’s bona fide occupancy, his rights, based upon sac occupancy, would not be affected by the fact, subsequently appearing, in whatever way, that all the odd-numbered sections in1 ]ln indemnity limits were needed to supply deficiencies ° P a^e ™its. • At the time the settler went upon the land, in th° h 5ma^e h°ine and to perfect his title under the i °mesf^ad ^aws’ ^iere was nothing of record that stood in unt lT^0 8 to occupy the lands and to remain thereon stead la\C°U^ Per^ect tfis title by formal entry under the home-thev were made in the argument of the case, but y nee not be specially noticed, as what we have said re- 116 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. quires, independently of those points, an affirmance of the decree of the Circuit Court and the Circuit Court of Appeals. The decree is Affirmed. Mr. Justice Brewer took no part in the disposition of this case. OREGON AND CALIFORNIA RAILROAD COMPANY v. UNITED STATES. No. 2. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 187. Argued March 4,1903.—Decided April 6,1903. On the authority of the preceding case, Held, that where a duly qualified entryman made a bona fide settlement upon lands within the indemnity limit of the grant made by act of Congress of May 4, 1870, with the in tention, whenever the way was opened by a survey, to enter the lan under the homestead laws, his rights were superior to those acquired, or that could have been acquired, by the railroad company under any se ection by it of indemnity lands made after the date of such settlement The case is stated in the opinion of the court. Air. Afaxwell Evarts for appellant. Air. Assistant Attorney Russell for appellee. Mr. Justice Harlan delivered the opinion of the court. The controlling question in this case is whether the States in 1893 erroneously issued to the Oregon and Railroad Company, which succeeded to the rights of the rego^ Central Railroad Company, a patent for certain an Oregon. . , These lands are without the place and within the in e OREGON &c. R. R. v. UNITED STATES. No. 2. 117 189 U. S. Opinion of the Court. limits of the grant made by the act of Congress of May 4,1870, c. 69, granting lands to aid in the construction of a railroad and telegraph line from Portland to Astoria and McMinnville in the State of Oregon. 16 Stat. 94. The provisions of this act were substantially the same as those of the act of July 25, 1866, referred to in Oregon and California Railroad Company v. United States^ case No. 186, just decided, except that the act of 1870 contains a provision not found in the act of 1866, to wit: “ That the Commissioner of the General Land Office shall cause the lands along the line of the said railroad to be surveyed with all convenient speed.” The line of the proposed road was definitely fixed and a plat thereof filed in the office of the Secretary of the Interior. On the 16th day of February, 1872, the first twenty miles of the contemplated railroad were completed from Portland to a point near Forest Grove, in Oregon, and on the 23d of June, 1876, the road to the Yamhill River, near McMinnville, was completed, but it has never Keen constructed to Astoria, Oregon. The final plat and survey of the township, in which the lands in dispute are situated, was not filed and approved until July 27, 1893; and on that day the company’s list of selections of nds, which included the lands in question, were duly approved. r Prior to the year 1893, to wit, on the 12th day of January, 91, Joseph H. Elison, a duly qualified entryman under the laws 0 e United States, settled upon the lands in dispute with the m ntion in good faith of “ homesteading the same,” and since a ate he has continuously resided upon, cultivated and im-pro\ c them; and within ninety days from the date of the filing e township plat of survey he made application for “ filing a homestead ” covering these lands. he selections by the company having been approved by the fnm’ a patent was issued to the Oregon and Cali- snJT :T-d Company on October 15, 1895. But it was is-Secr °U^ any knowledge at the time on the part of the Piio6 ar^- °r ^le ^enerai Land Office of the adverse claim of F°n, arising from his occupancy of the land. or e reasons stated in the opinion just delivered in case 118 OCTOBER TERM, 1902. Opinion of the Court. 18ÔU.8. No. 186, we hold that, in virtue of Elison’s bona fide settlement upon the lands in dispute in 1891, with the intention, whenever the way was opened by a survey, to enter the lands under the homestead laws, his rights were superior to those acquired or that could have been acquired by the railroad company under any selection by it of indemnity lands made after the date of such settlement. The company’s selection did not displace or defeat the right which the settler acquired by his settlement made previously in good faith with the intention to avail himself of the benefits of the homestead laws within due time after the lands were surveyed. The railroad company rests its claim to have a superior right to these lands on the ground in part of long delay by the Commissioner of the Land Office in having them surveyed, although it frequently requested the survey to be made. There is nothing of substance in this contention. The statute, it is true, required the lands to be surveyed with all “ convenient speed.” But the question as to the precise time the lands should be surveyed was exclusively for the Land Office to determine; audit was to be determined with reference to all the facts and circumstances connected with the surveying of the public lands under the direction of the Land Department. We cannot say from the record that the Land Office, in the matter of the surveying of the particular lands here in dispute, did not act with convenient speed. Besides, the railroad company accepted the grant of Congress subject to the possibility of delay in the surveying, as well as to the power of the Land Office to determine when the lands should be surveyed. The action or non-action of the Land Department in such a matter cannot be control! by the judiciary, unless perhaps in a case in which it appear , beyond question, that its refusal to order the survey was mere y arbitrary and without any real excuse. It may be that in sue a case the Commissioner could be compelled by judicial process to discharge the duty imposed upon him by statute. But upon that point we need not express a decided opinion, for no sue case is presented by the record before us. The allegation i the defendant’s plea is simply that the Commissioner neglec to perform his duty in the matter of the surveying. But De CAMERA r. ROGERS, 119 189 V. S. Statement of the Case, facts constituting such alleged neglect are not stated, Besides, we may observe that since the right of the settler attached in virtue of his bona fide occupancy of these lands before the railroad company made its selection, that right could not be displaced by reason of any delay or negligence upon the part of the Commissioner to cause a survey of the lands. The act contains no provision that requires a contrary view. The court must determine the rights of the settler according to the facts as they existed at the time his occupancy in good faith began. The statute does not otherwise declare. In that view, as already suggested, the settler’s right was superior to any right acquired by the company, after the date of his occupancy, in virtue of its selection of these lands to supply a deficiency in the place limits. Upon the authority of the case just decided, the decree of the Circuit Court of Appeals must be Affirmed. Mr. J ustice Brewer took no part in the disposition of this case. De CAMBRA v. ROGERS. ERROR to THE SUPREME COURT OF THE STATE OF CALIFORNIA. No. 170. Argued and submitted February 24,1903.—Decided March 16,1903. the *nary contest between two applicants for preemption, in which fav ° f618 th6 ^an<^ Department have decided upon the testimony in one and against the other, the decision of the Land Department When1« c°ns Of fact iS conclusive upon the courts. the co° t ecr?tary the Interior has made a decision in such a contest tion ami v nOt entertaiu au inquiry as to the extent of his investiga-he roQ k the points decided, or as to the methods by which “e reached his determination. holdpr^P/i l Hannah Rogers and Frank J. Rogers, 0 t e legal title to a tract of land in Alameda County, 120 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. commenced in the Superior Court of that county an action in ejectment against Manuel S. De Cambra and others. The defendants answered with a general denial, and, as authorized by the practice in California, De Cambra filed a cross complaint in equity, alleging that the plaintiffs had obtained the legal title wrongfully and held it in trust for him, and prayed a decree quieting his title to the land. A demurrer to this cross complaint was sustained, and upon a trial of the action a judgment was rendered in favor of the plaintiffs, which judgment was affirmed by the Supreme Court of California, 132 California, 502, and thereupon this writ of error was sued out. Submitted by Jfr. J. C. Bates for plaintiff in error. Argued by Mr. Franklin H. Mackey for defendants in error. Me. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. The only question presehted arises on the demurrer to the cross complaint. That cross complaint averred that in 1867 De Cambra purchased from one Hewett Steele the premises in controversy, with other adjoining lands, all of which were enclosed with fences and well-known exterior boundaries; that he entered into actual possession thereof, and has ever since continuously resided thereon; that in 1871 he sold an undivided half interest in the tract to Enos J. Rogers, the husband o Hannah and the father of Frank J. Rogers; that at that time the land was supposed to be a portion of a Mexican grant, an was within its exterior boundaries; that on August 10,187, the final official survey disclosed that there were more t an three leagues of land within the exterior boundaries of sal grant, and thereupon a part thereof, including the land in con troversy, was restored by the United States to the public o-main; that De Cambra and Rogers, w’ho were brothers-in aw, agreed upon a division of the land excluded from the grant an restored to the public domain, De Cambra to take one Por^’ and that the tract in controversy, and Rogers the other, De CAMBRA v. ROGERS. 121 189 U. S Opinion of the Court. thereupon they went to the local land office to file their applications for entry; that De Cambra, being unable to read or write, and understanding the English language very imperfectly, trusted to Rogers to prepare the preemption papers; that Rogers knowingly and fraudulently prepared the papers so as to make De Cambra an applicant for land upon which there was no dwelling house or other improvement, and only a small part of which was in his possession and three fourths of which was thoroughly worthless, Rogers himself filing a preemption claim for the land which it had been agreed should be entered by De Cambra, the land which was his homestead and upon which his improvements had been made; that De Cambra did not discover this until December 29, 1883; that thereupon he made the proper application at the land office for this land; that a contest ensued, which was finally decided by the Secretary of the Interior in favor of Rogers, and the land patented to the plaintiffs, his widow and son. The cross complaint further averred that although the decision apparently rendered by the Secretary of the Interior was signed by him, yet in fact for want of time and opportunity the Secretary had not read or heard read the evidence in the contested case, and simply signed his name to a report prepared by one of the clerks in the department. This cross complaint states no question of law decided in these contest proceedings in the Land Department adversely to e Cambra. Indeed, the grounds of the decision are not dis-c osed. There is no copy of the testimony given on the contest. It appears that De Cambra offered testimony showing ls qualifications, settlement, occupation, etc., and it is stated at some evidence was given in support of the Rogers application. It is alleged that the land officers came to their con-c usion by the misconstruction of the evidence submitted to em and the misapplication of the law to the evidence, and in vio ation of the just and equitable rights and claims of Manuel S. f 6 r|a^ra F°r ^hat appears, the officers may have oun t e facts to be just the contrary to the averments in the r°ss complaint; and if they misapplied any rule of law to the s imony we are not advised of the rule they misapplied or 122 OCTOBER TERM. 1902. Syllabus. 189 U. 8. how they misapplied it. As it appears affirmatively that, before the contest, De Cambra was informed of the nature of the wrongs he alleges were perpetrated upon him by Rogers, it may be presumed that evidence was offered by both parties upon that question, and that it was decided adversely to his contention. Under those circumstances nothing is shown except an ordinary contest between two applicants for preemption, in which the land officers upon the testimony decided in favor of one and against the other. But it is well settled that the decision of the Land Department upon questions of fact is conclusive in the courts. Burfenning v. Chicago &c. Bailway, 163 U. S. 321, 323, and cases cited; Johnson v. Drew, 171U. S. 93, 99; Gardner v. Bonestell, 180 U. S. 362. It is hardly necessary to say that when a decision has been made by the Secretary of the Interior, courts will not entertain an inquiry as to the extent of his investigation and knowledge of the points decided, or as to the methods by which he reached his determination. These are the only Federal questions presented, and their decision was unquestionably correct. The judgment of the Supreme Court of California is Affirmed. EASTERN BUILDING AND LOAN ASSOCIATION®. WILLIAMSON. ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLIN No. 152. Argued January 28,1903.—Decided March 23,1903. Courts of one State do not take judicial notice of the laws of anot^1 Droved whether written or unwritten. Statutes and decisions mus as facts, but when proved their construction and meaning ai consideration and judgment of the court, and the fact t a an of the enacting State has testified without contradiction as struction of a law of that State does not conclude the cou its duty to find as a fact that such was the true construe ion. EASTERN BUILDING &c. ASSN. v. WILLIAMSON. 123 189 U. 8. Statement of the Case. While this court does not take judicial notice of the decisions of the courts of one State in a case coming from the courts of another State, it may properly refer to the opinion of the highest court of a State as to the construction of a statute of that State when such statute is involved in a case before this court and this applies to a decision rendered after the judgment appealed from was rendered. The construction given by the Supreme Court of South Carolina and by the Court of Appeals of New York to the building and loan law of New York to the effect that it does not relieve a building and loan association from an obligation to pay the full par value of certificates at a date stated therein whether earned or not commends itself to this court as a correct construction thereof. This action was commenced on January 12, 1898, in the Circuit Court of Darlington County, South Carolina, by Bright Williamson against the Eastern Building and Loan Association of Syracuse, New York, to recover the face value of twenty-five shares of stock in the defendant association, less a sum theretofore borrowed by the plaintiff from the association. Judgment in his favor for the full amount claimed was ren-ered in the trial, affirmed by the Supreme Court of the State, 62 S. C. 390, and thence brought here on this writ of error. The case is similar to that of the same plaintiff in error n. augh, 185 U. S. 114. Here, as there, the stock certificates contained an absolute promise to pay « the sum of one hundred o ars for each of said shares at the end of seventy-eight mont s from the date hereof.” Here, as there, circulars were s own to the plaintiff to induce his subscription, one of which contained this statement : “ For the investor. Mt?8 association issues three classes of certificates, desig-„ 6 las^men^ paid-up and fully paid. All of which are guaranteed to mature in 6^-years. ‘ «p^T^ secure(i by mortgages on real estate. “Pii St°Ck doubles in 6| years. « Pa*d ceri'ifi°ates guaranteed. uarterly dividends, 7 per cent per annum. H “ For the borrower. This association has no auction sales. 124 OCTOBER TERM, 1902. Statement of the Case. 189U.S. “No bidding for loans. “ And a definite time for repaying a loan.” Another, the following: “ Only association giving investor and borrower definite maturity contract in 78 months. Only association issuing definite contracts.” The defendant pleaded that there was no absolute promise to pay at the end of seventy-eight months, but only an estimate of the time at which the stock would mature ; that an absolute promise to pay at the end of seventy-eight months was inconsistent with the nature of the corporation as a mutual company and against the provisions of its charter and by-laws, and also illegal by the laws of New York under which the company was incorporated. On the trial before a jury, defendant, in support of its answer, introduced the charter and by-laws of the company, the statutes of New York under which it was incorporated, certain decisions of the courts of that State, and the testimony of the assistant secretary and actuary of the defendant that the shares of stock had not, in fact, matured ; also the deposition of its general at torney, who, after affirming his familiarity with the law of that State regarding building and loan associations, of which, as he said, he had made a special study, testified that, under the e-fendant’s articles of incorporation and by-laws, and the laws and decisions of New York, the heretofore referred to clause in the certificate of stock “is not to be construed or held as a guaranty period of maturity, but, on the other hand, an es mated period,” and that the association is not required to pay the face value of the certificates until “ the amount paid y plaintiff on his shares of stock, augmented by the earnings ap portioned and credited thereto, equal the par value. P® this testimony the defendant asked the court to charge t e ] that full faith and credit must be given to the laws o York, as construed by its courts, and that by reason “ under the terms of the contract of membership, an e tract of loan, by-laws and charter, the transaction betweei plaintiff and defendant does not terminate merely upon m a fixed number of payments, but only when the dues EASTERN BUILDING &c. ASSN. v. WILLIAMSON. 125 189 U. S. Opinion of the Court. him, with the profits apportioned to his shares, make them equal their par value of $100.00 per share.” Other instructions of a similar nature, or looking to the same result, were also asked, but all were refused. Jfr. William Hepburn Russell for plaintiff in error. Mr. William Beverly Winslow and Mr. D. A. Pierce were with him on the brief. Hr. H. E. Young for defendant in error. Mr. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. The Federal question presented arises on the contention that the South Carolina courts did not give “ full faith and credit • . . to the public acts, records and judicial proceedings” of the State of New York, as required by section 1, article IV, of the Constitution of the United States. Courts of one State do not take judicial notice of the laws of another State, whether written or unwritten. They must be prewed as facts. Talbot v. Seeman, 1 Cranch, 1,38 ; Livingston NN Maryland Insurance Co., 6 Cranch, 274 ; Ennis v. Smith, 14 How. 400, 426 ; Pierce v. Indseth, 106 U. S. 546, 551 ; Chi-& Alton Railroad v. Wiggins Ferry Co., 119 U. S. 615, Lloyd v. Matthews, 155 U. S. 222 ; Building & Loan As-wciation v. Ebaugh, 185 U. S. 114,121 ; Nashua Savings Bank, v. Anglo-American Co., post, p. 221. The law of New 1 ork was so proved in this case, and the con-n ion is that it was not rightly construed by the South Caro-fo the law of New York which entered into and C0n^ra°t sued on was not given by those that E the Same f°rCe aDd effeCt that ifc had in NeVV Y°rk’ and Stat ence rights secured by the Constitution of the United the S °u 6 error were denied. If it appeared that sinu 1 ° k'arokna courts, without questioning the validity, wnnJ construed a statute of New York, no Federal question be presented. Glenn v. Garth, 147 U. S. 360 ; Lloyd v. 126 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. NLatthews, 155 U. S. 222; Banholzer v. New York Life Insurance Co., 178 U. S. 402; Johnson v. New York Life Ins. Co., 187 U. S. 491. But it is contended that the construction of the New York statutes as applicable to this contract was shown by the decisions of the courts of that State and the opinion of one learned in its laws; that there was no contradictory testimony, and, therefore, it was the duty of the South Carolina courts to find as a fact that such was the true construction. The promise to pay one hundred dollars at the end of seventyeight months is plain and unambiguous. It is a positive promise to pay at a fixed time. The circulars presented by the company to the plaintiff as an inducement for his subscription only emphasize the certainty of the promise. So, if the inquiry were limited to the mere language of the promise and the representations which led up to it, but one decision was possible. It is said that the promise made in the certificate is expressly based upon “ full compliance with the terms, conditions and by-laws printed on the front and back of this certificate; ” that one of the conditions expressed on the face of the certificate is: “The shareholder agrees to pay, or cause to be paid, a monthly installment of seventy-five cents on each share namedin this contract, the same to be paid on or before the last Saturday of each month until such share matures or is withdrawnthat it contained this further stipulation : “Payable in the manner and upon the conditions set forth in said terms, conditions and by-laws hereto attached,” and that these matters thus referre to had the effect of changing the absolute promise to a condi tional one* All these were received in evidence, and when so received it became a matter of judicial construction to deter mine whether they had such effect, and that was a question which, nothing else being shown, was for the consideration o the courts in which the litigation was pending. In like man ner, after the decisions of the courts of New 1 ork were rece1^ in evidence, their meaning and scope became matters for same consideration. While statutes and decisions of other Sta are facts to be proved, yet when proved their construction an meaning are for the consideration and judgment of the cour s EASTERN BUILDING &c. ASSN. v. WILLIAMSON. 127 189 U. S. Opinion of the Court. in which they have'been proved. Nor is the rule changed by the testimony given in the deposition of defendant’s counsel, for, as he states, his opinion is based on the statutes, the articles of incorporation and the decisions admitted in evidence, together with similar decisions of other States under like statutes, articles of incorporation and by-laws. No witness can conclude a court by his opinion of the construction and meaning of statutes and decisions already in evidence. Laing v. Rigney, 160 U. S. 531. The duty of the court to construe and decide remains the same. It must be remembered that the effort here made is to change the obligations which the defendant apparently assumed by the issue to plaintiff of its certificates of stock, and to justify such change by its articles of incorporation, the | statutes of the State of New York under which it was created, and the decisions of the courts of that State. There is no suggestion of any peculiar local law in New York independent of that created by these articles and statutes and shown by its decisions, and their effect upon the terms of the contract was a matter for judicial construction by the courts of South Carolina. That the defendant so understood the matter is apparent from the instructions it asked. The conclusion reached by the courts of South Carolina that the articles of incorporation and by-laws and the statutes of New York did not alter the apparent meaning of the contract was correct. The absolute promise was not so inconsistent with the articles of incorporation or by-laws as to be void. The bylaws at the time of making this contract contained no such provision as appears in Daley v. Peoples Building &c. Association, 172 Massachusetts, 533. There the provision was that whenever the dues paid and dividends declared shall equal the par value of the shares held by any shareholder, said shares of stock shall be canceled,” and the shareholder “ shall be entitled to receive . . . the par value of the shares named, . . . 311 no more.” Here “ all shareholders shall pay or cause to be paid a monthly instalment of seventy-five cents on each share named in their certificate, until the same shall be fully paid.” rticle 14, section 14. But in sections 21 and 22 of the same ic e are these provisions for a different mode and amount of payment; 128 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. “ Sec. 21. And it is hereby expressly agreed between all shareholders and this association, that a payment of one hundred dollars per share, named in their certificate, that has been in force till maturity shall be accepted as full payment of all claims on their certificate or against this association. “ Sec. 22. Paid-up and non-assessable stock may be issued and sold at the price of fifty dollars per share, payable on date of issue. Any parties holding such paid-up stock, wanting to withdraw the same before maturity, may do so and receive six per cent annual interest from the date of issue of said stock.” Neither was the promise ultra vires the corporation. We are saved from the necessity of an extended discussion of these questions by a recent opinion of the Court of Appeals of New York in the case of Vought v. this defendant, Eastern Building c& Loan Association, decided December 2, 1902,172 N. Y. 508. It is true that the decision was not offered in evidence on the trial of this case in the South Carolina court. It had not then been announced. And it is also true that we do not take judicial notice of the decisions of the courts of one State in a case coming to us from the courts of another. Hanley v. Donoghue, 116 IT. S. 1, 6; Chicago & Alton Railroad n. Wiggins Ferry Co., 119 U. S. 615-622; Lloyd v. Hatthews, 155 U. S. 222, 227. But nevertheless we may properly refer to the opinion as a construction of the law, and the views therein expressed not only commend themselves to our judgment as intrinsically sound, but also, as the views of the law of New York entertained by the justices of its highest court, have a peculiar and persuasive appropriateness. Referring to the contention that the terms0 the articles of incorporation were inconsistent with the a lute promise contained in this certificate that court said: “ In other words, the defendant’s contention is that t ose provisions were sufficient to change an absolute promise to pay into a conditional one dependent upon the success of ^,en,.L prise. We find nothing in these provisions which would jus J any such conclusion. The provision in paragraph one t plaintiff should pay until the share is paid or withdrawn, is ® tirely consistent with the agreement for absolute paymen the shares by the defendant at the time named, as by i 00 EASTERN BUILDING &c. ASSN. v. WILLIAMSON. 129 189 U. S. Opinion of the Court. tract it agreed that the plaintiff’s shares should mature at that time.” Again, referring to the contention that the absolute promise contained in such certificate was ultra vires the corporation, it observed : “We deem it unnecessary at this time to determine whether the defendant was authorized by that statute to enter into such contracts, for if we assume that the making of them was in excess of the express 'power conferred upon the corporation by that statute, still, as the contracts involved no moral turpitude and did not offend any express statute, they were not illegal in a sense that would prevent the maintenance of an action thereon. It is now well settled that a corporation cannot avail itself of the defence of ultra vires when the contract has been, in good faith, fully performed by the other party, and the corporation has had the benefit of the performance and of the contract. As has been said, corporations, like natural persons, have power and capacity to do wrong. They may, in their contracts and dealings, break over the restraints imposed upon them by their charters ; and when they do so their exemption from liability cannot be claimed on the mere ground that they have no attributes nor facilities which render it possible for them thus to act. While they have no right to violate their charters, yet they have capacity to do so, and are bound by their acts where a repudiation of them would result in manifest wrong to innocent parties, and especially where the offender alleges its own wrong to avoid a just responsibility. It may be that while a contract remains unexecuted upon both sides, a corporation is not estopped to say in its defence that it had not the power to make the contract sought to be enforced, yet when it becomes executed by the other party, it is estopped from asserting its ou n wrong and cannot be excused from payment upon the plea t t the contract was beyond its power. Bissell v. Mich. So. No. Ind. B. B. Cos., 22 N. Y. 258 ; Whitney Arms Co. v. 63 N. Y. 62 ; Bider Life Baft Co. v. Boach, M N. Y. Holmes, Booth & Haydens n. Willard, 125 N. Y. 15, 80 ; wy of Buffalo v. Balcom, 134 N. Y. 532 ; Bath Gas L. Co, N, VOL. CLXXXIX—9 130 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. Claffy, 151 N. Y. 24; Moss v. Cohen, 158 N. Y. 240,249; Hannon v. Siegel-Cooper Co., 167 N. Y. 244.” We deem it unnecessary to add any observations of our own to these satisfactory declarations of the law of New York. A single matter remains to be noticed. It is contended that the contract evidenced by the certificates was changed by a loan subsequently obtained by the plaintiff from the defendant upon the security of the shares—a loan obtained after the bylaws had been amended to make, as alleged, more clear the obligations assumed by the issue of share certificates. That amendment is found in section 3, article 8, which as amended reads: “ Seo. 3. Installment stock shall mature and be payable when the dues paid thereon with the profits apportioned and credited thereto shall equal one hundred dollars per share. Paid-up stock shall mature and be payable when the dues thereon with the profits apportioned and credited thereto in excess of any cash dividends, if any, that may be paid, shall equal one hundred dollars per share; and unless otherwise provided all other stock shall be payable as provided by the by-laws or certificates of shares.” But it is not shown that there was any express agreement between the parties to change the terms of the original contract ; the amendment was clearly prospective in its operation, Knights Templars' de M. L. Indemnity Co. v. Jarman, 187 IT. S. 197; and we are unable to perceive that the mere borrowing or the promise to return the money so borrowed had in themselves any effect upon the prior contract. We see no error in the record, and the judgment of the Supreme Court of South Carolina is AjlTTMd- Mr. Justice Harlan and Mr. Justice White concurred in the result. BELL v. COMMONWEALTH TITLE INS. CO. 131 189 U. S. Statement of the Case. BELL v. COMMONWEALTH TITLE INSURANCE AND TRUST COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 191. Submitted March 10, 1903.—Decided April 6,1903. Under section 828, Rev. Stat., and section 2 of the act of August 1,1888, a corporation engaged in the business of insuring titles to real estate has the right, during office hours, to inspect and examine the indices and cross indices of the judgment records kept by the clerks of the Circuit and District Courts when such inspection and examination relate to current and depending transactions and are made at such times and under such circumstances that they do not interfere with the clerk or his assistant in the discharge of their duties or with the exercise of the right of other persons to have access to such indices and cross indices. By section 828, Rev. Stat., clerks of the Circuit and District Courts are allowed certain fees for searching records for judgments, decrees, etc., and certifying the results of such searches. In the same section is this provision : “ All books in the offices of the clerks of the Circuit and District Courts, containing the docket or minute of the judgments, or decrees thereof, shall, during office hours, be open to the inspection of any person desiring to examine the same, without any fees or charge therefor.” Section 2 of the act of August 1, 1888, 25 Stat. 357, reads: “The clerks of the several courts of the United States shall prepare and keep in their respective offices complete and convenient indices and cross indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspection and examination of the public.” On December 28, 1896, the Commonwealth Title Insurance aml Trust Company commenced a suit in the Circuit Court of the United States for the Eastern District of Pennsylvania against Samuel Bell, clerk of that court. The company is engaged in the business of insuring titles to real estate, making 132 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. searches for liens and incumbrances upon the same, and issuing certificates in respect thereto, and sought a decree giving to it access to the judgment indices and cross indices kept by the clerk. The case proceeded to a decree as follows : “ And now this sixteenth day of January, 1901, this case having come on to be heard upon pleadings and proofs, and having been argued by counsel, it is ordered, decreed and adjudged that the respondent shall permit the properly authorized representatives of the complainant to inspect and examine the judgment indices and cross indices kept by the respondent, as clerk of the Circuit Court of the United States for the Eastern District of Pennsylvania, in such way and manner as will enable the complainant to prosecute its business as insurer of titles, but subject to the following restrictions : “ The inspection and examination must in each instance relate and be confined to a transaction or transactions which at the time being shall be current or depending ; and such inspection and examination shall be made only at such times and under such circumstances as will not interfere with the respondent or his assistants in the discharge of their duties or with the exercise of the right of other persons to have access to said indices and cross indices.” ( This decree was affirmed on September 27, 1901, by the Circuit Court of Appeals. 110 Fed. Rep. 828. On Decembers of the same year the case was brought here on certiorari. 183 U. S. 699. J/r. Solicitor General Richards and J/r. Assistant Attorney General Beck for petitioner. ALr. John G. Johnson for respondent. Mb. Justice Bbeweb, after making the foregoing statement, delivered the opinion of the court. The question presented is to what extent a company engag in the business of examining titles and certifying thereto may have access to and use the indices and cross indices o BELL v. COMMONWEALTH TITLE INS. CO. 133 189 U. S. Opinion of the Court. judgment records prepared by the clerks of United States courts. The statute declares that they “ shall at all times be open to the inspection and examination of the public.” This company as one of the public has a right to this inspection and examination. It has no monopoly therein and cannot interfere with the clerk or his assistants in the discharge of their duties, or with the equal rights of other persons to such inspection and examination. But this limitation is expressly provided for by the second of the two restrictions imposed in the decree. Under this decree the clerk, as custodian, can make such reasonable regulations as will secure to him and his assistants full use of all the books and records of his office—which, of course, is a primary matter to be considered—and also will guard against any tampering with or injury to those books and records, and at the same time give to the plaintiff and others access to the indices. From the testimony it is clear that there can be no difficulty on the score of time or otherwise in affording to this company and all others interested every proper facility for inspection and examination. Indeed, it is not contended that there is any trouble in that direction. But the contention is that the office of clerk is not a salaried office; that he is paid by fees; that the fees for searches and certificates thereof have amounted to a very considerable sum, and in this office have resulted in a surplus above the maximum of compensation allowed by law to the clerk, which has gone into the Treasury of the United States, whereas if this plaintiff and other like companies situated in Philadelphia, which are' monopolizing the business of examinations of title, should be permitted to make their own inspection and examination of ese indices, a large part of the fees hitherto received by the cer will be lost, his maximum of compensation will not be reac ed, and there will be no surplus to be paid into the reasury of the United States. It is insisted that although by . e terms of section 828 the judgment records are open to the *-on of any person without any fee or charge therefor, in^e3reSSj (^rec^no ^le preparation of the indices and cross e ices and that they should be open to the inspection and ‘imination of the public, did not add thereto “ without any 134 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. fee or charge therefor,” and thus manifested its intent that they should not be so used as to interfere with the fees theretofore received by the clerk. We cannot so interpret the statute. If these indices were intended merely for the convenience of the clerk and to facilitate his work, the making of them would undoubtedly have been left to his discretion. The convenience of the public and assistance to those interested in the judgments were obviously in the thought of Congress, for it declared that they should be open to the inspection and examination of the public. Very likely, at the time of the passage of the act, the monopolizing of the business of examining titles by one or two corporations was not contemplated. The work was scattered among the separate members of the bar, each one for his own client examining the title to property in which such client was interested. But if Congress provided and intended to provide that one, interested in the title to real estate and desiring an examination of judgment liens thereon, should, either by himself or agent, have access to these indices, that intent and that provision are not changed by the fact that the business has passed from the many to a few. The same right of inspection exists whether one is examining only the title to a single piece of real estate or the titles to a hundred. The inspection is an assistance to the examination of titles, and obviously Congress intended that these indices should be open to the inspection o those rightfully making such examinations. Whether parties have a right to make copies in full of these indices is not a question before us, for the decree carefu y limits the right of inspection to a transaction or transactions at the time current or depending. So that all that this p am tiff is allowed by this decree is an inspection and examination of these indices, so far as may be necessary to assist in examination of a title for which it is then employed. We see no error in the decree, and it is FIDELITY CO. v. BUCKI CO. Statement of the Case. 135 189 U. S. FIDELITY AND DEPOSIT COMPANY v. L. BUCKI & SON LUMBER COMPANY. CEETIOEARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 220. Argued March 20, 1903.—Decided April 6,1903. Where it has been declared by the highest court of a State that liability for counsel fees is a part of the obligation assumed by the obligor in an attachment bond, such liability should be enforced in every court in which an action on such bond is brought. Where a liability can be enforced in the state court in which an action is originally brought that liability cannot be taken away by removing the case to a Federal court. Whereas the result of an attachment against a lumber company there was an interruption of business for a certain time, and the plaintiff in the action thereafter refused to deliver materials to the lumber company, the sureties on the attachment bond are liable for the damages directly attributable to attachment, but not for any of the damages caused by the plaintiff’s failure to deliver materials or for the reflection on the credit of the lumber company by the bringing of the action in which the attached bond was given. A postponement or continuance is largely within the discretion of the court, and unless such discretion is shown to have been abused there is no ground for reversal in a refusal to postpone. On October 1, 1897, the Atlantic Lumber Company commenced two actions at law in the Circuit Court of Duval County, Florida, against The L. Bucki & Son Lumber Company. In each of these actions a writ of attachment was issued, The Fidelity and Deposit Company of Maryland being the surety on the attachment bonds. Both of the attachments were dissolved. Soon after such dissolution the Bucki Company brought the present action against The Fidelity Company upon the attachment bonds. The action was commenced in t e Circuit Court of Duval County, Florida, but subsequently removed to the United States Circuit Court for the Southern istrict of Florida. On a trial in that court the Bucki Com-Fvny Stained a judgment which by the Court of Appeals of e if th Circuit was modified, and as modified affirmed. 109 136 OCTOBER TERM, 1902. Opinion of the Court. 189 {J, g( Fed. Rep. 393 ; 48 C. C. A. 436. Subsequently thereto each of the parties obtained a writ of certiorari from this court. 184 U. S. 698. JZ>. Richard H. Liggett for The Fidelity and Deposit Company. Mr. Winfield Liggett was with him on the brief. Mr. H. Bisbee for The L. Bucki & Son Lumber Company. Mr. George C. Bedell was with him on the brief. Me. Justice Bbewer, after making the foregoing statement, delivered the opinion of the court. The principal question arises in the claim to recover counsel fees incurred in securing the dissolution of the attachments. The reasonable value of such fees was specially found by the jury to have been $7500. The Circuit Court refused to include this in its judgment, but the Court of Appeals ruled otherwise, and ordered judgment for that sum in addition to the amount of the general verdict. By the law of Florida counsel fees incurred in securing the dissolution of an attachment are recoverable in actions upon attachment bonds. This was distinctly ruled in Gonzales v. Re Funiak Ha/oana Tobacco Company, 41 Florida, 471, in which the second headnote recites that “ attorney’s fees and other expenses incurred in relation to the attachment, or in procuring its dissolution, are properly allowed as elements of damage in actions upon attachment bonds.” And this is conclusive, for by McClellan’s Dig. 345, sec. 21, it is provided that “ the judges of the Supreme Court of this State shall, in deciding cases, prepare and make a syllabus or statement of the points and principles intended to be decided by the court, which shall be published in the reports in lieu of that usually prepare by the reporter.” Ha/rt, Ex., et al. v. Stribling et ux., 25 Florida, 435. It is true, as contended by counsel, that the case in 41 Florida was not decided until after the bonds sued on in this case had been executed, but the decision declares the law of t e State, and that, in the absence of statutes affecting the ques- FIDELITY CO. v. BUCKI CO. 137 189 U. S. Opinion of the Court. tion, must be taken to have been always the law. And in its opinion the court refers as authority, among other cases, to BicA v. O'Neal, 22 Florida, 592, 599, (decided in 1886,) in which it was held that “ in a suit on the bond given to obtain a temporary injunction, counsel fees incurred by the defendant in the suit to dissolve such injunction are damages that may be recovered if covered by language of the bond.” In the opinion in that case the court, while conceding that other appellate courts had ruled differently, (among them this court in Oelrichs v. Spain, 15 Wall. 211,) declined to follow such ruling, and said: “ It seems just and right that where a party asks the interposition of the power of the courts, in advance of a trial of the merits of the cause, to deprive the defendant of some right or privilege claimed by him, even though temporarily, that if on investigation it is found that the plaintiff had no just right either in the law or the facts to justify him in asking and obtaining from the court such a harsh and drastic exercise of its authority, he should indemnify the defendant in the language of his bond for ‘ all damages he might sustain,’ and that reasonable counsel fees necessary to the recovering of such injunction are properly a part of his damage.” The promise in the bonds sued on here is like that referred to in the language just quoted, and was “ to pay all costs and amages which the said L. Bucki Lumber Company may sustain in consequence of it, the said Atlantic Company’s improper y suing out said attachment.” Liability for these counsel ees being, as declared by its highest court, a part of the obligation assumed by the obligor in an attachment bond given in e courts of Florida, should be enforced in every court in which an action on such a bond is brought. This action was commenced in a Circuit Court of the State, and if it had proceeded w^v/k ^u^raen^ unquestionably a liability for counsel fees ^°U ave been sustained, and it cannot be that by removing 1^7^77 ^e(^era^ c°urt such liability has been taken away, a bo ?d V ~^u^vane^ 184 IT. S. 497, 505, we held that when a .n a<^ ^een given in a case pending in the Federal court an action was thereafter brought in the state court on such 138 189 U.S. OCTOBER TERM, 1902. Opinion of the Court. bond, the rule of liability was that existing in the Federal court in which the bond was given, and said : “ It is clear that if it be true that the bond given in a Federal court of equity on the granting of an injunction is not to be construed with reference to the rules of law applicable to such bonds in such court, then there can be no certain general rule by which to determine the liability of the obligors upon the bond. Their responsibility would be one thing in a court of the United States and a different thing in the courts of the var rious States, which would imply that the parties did not contract with reference to any definite rule of liability.” See also Missouri, Kansas &c. Railway Company v. Elliott, 184 U. S. 530. In reference to the other alleged errors, the Court of Appeals, without referring to them in particular, said, “onthe fullest consideration of the whole case we conclude that the record presents no error on the part of the trial judge for which the judgment should be reversed.” We do not wonder at this observation of the Court of Appeals, as we find from the record that the plaintiff filed in that court thirty-seven assignments of error covering seventeen printed pages, and the defendant thirty-nine such assignments. It may be true, as the Scriptures have it, that “ in the multitude of counsellors there is safety,” but it is also true that in a multitude of assignments of error there is danger. Perhaps it is well to first briefly outline the case and the testimony. Prior to October, 1897, the Atlantic Company had under contract been engaged in furnishing the Bucki Company with logs with which to operate its sawmills, at the rate o 2,000,000 feet per month. It canceled its contract on account of an alleged breach of the Bucki Company and brought the two actions at law, one for $200,000 damages, resulting fr®m such breach, and the other for $9980.80, claimed to be due or logs delivered, and in these actions sued out the two attac ments. They were levied upon the mill plant, the logs, him r> and all other personal property of the Bucki Company. 16 the personal property was taken into possession by the s en , the mill was a fixture, a part of the realty, and the writs i FIDELITY CO. v. BUCKI CO. 139 189 U. S. Opinion of the Court. not operate to dispossess the Bucki Company therefrom, but simply established a lien upon it. By forthcoming bonds the personal property was, after a few days, released, and subsequently the attachments were dissolved. On the trial the plaintiff was permitted to show the extent of its mill plant, the amount of business it had been doing in prior years, the net profits of such business during the nine or ten months preceding the levy of the attachments, the orders and contracts which it had on hand for timber and lumber, an alleged increase in the price of timber in the year succeeding the levy; there was testimony bearing upon the question of its ability to get logs elsewhere, the means of transporting them to its plant, and the existence of negotations for a loan of money secured by the material it then had on hand. There was evidence also tending to show the financial condition of the company, its default in certain payments and efforts it made to utilize its property subsequently to the attachments. After all the testimony had been presented the defendant made a motion in writing to exclude a number of items thereof from the consideration of the jury, upon which motion the court ruled as follows: ‘This cause coming on to be heard on a motion of the defendant s attorney to exclude certain testimony from the jury, and it being considered that under the testimony introduced, any amages arising from the consideration of injury to credit or oss of profits would be too remote, uncertain and speculative, it is therefore ordered that this motion be granted as to the estunony relating to the cost of manufacturing lumber and the supp y of timber lands ; all testimony to the damage to credit, oss o profits and all evidence relative to the market prices of am er subsequent to the attachment. That in regard to the pro ts plaintiff’s mill had been making prior to October 1,1897, e retained and considered only for the purpose of determining tfa6 aC,nal ^araa»es suffered during the time the operation of e P11 was suspended on account of the attachment and the 0 10n oe denied in all other respects.” And m making this ruling it said: finin 11 01<^er *s ma(^e at this time only for the purpose of confs e argument to the jury upon these lines. I am fully 140 OCTOBER TERM, 1902. Opinion of the Court. 189 JJ, S. satisfied in my own mind that damages from the loss of profits arising from the subsequent or future business which might possibly have been carried on is under the evidence too remote and speculative for the testimony to go to the jury. Some courts have held that every fact should go to the jury to be considered, but the United States courts have uniformly held that where the testimony7- is such that any reasonable man, or any reasonable court could view it in but one light, the court may exclude it from the jury. In this matter I have admitted the testimony, but I fail to find that there is such evidence of damage from loss of future profits as should go to the jury. If there was no combination of circumstances other than the attachment ; had a third party7 come in and levied an attachment and stopped the business, and there had been no suspension save by the attachment, then there might have been such testimony as would prove a loss of profits; but in this case the particular circumstances, the suspension of the contract for the delivery of logs and the bringing of the two common law suits, so changed the circumstances that there is no certainty that there could have been any profit. “ Every author of authority referred to, even by the plaintiffs attorney, says there must be some certainty. “Now the certainty of profits here depends upon this: It is claimed that on account of these attachments the plaintiffs credit was injured; that had it not been for the attachments, money could have been borrowed, timber land or stumpage could have been procured, logs could have been procured profitably7 ; if logs could have been procured profitably, lumber could have been manufactured and marketed profitably. Now, between the borrowing of the money and the marketing of the lumber there are so many uncertainties that the court canno say that there is sufficient to justify the jury in finding perhaps large damages against the defendant in this case on account o loss of credit and profit—from the levying of the attachments. The plaintiff excepted on the ground of an invasion of the province of the jury, and because it was, as it alleged, misl by the rulings of the court in admitting such testimony, an therefore failed to introduce other testimony which it claim FIDELITY CO. v. BUCKI CO. 141 189 U. S. Opinion of the Court. to possess and which upon another theory would have tended to show the damages it had sustained. Because it was so misled it also filed a motion to discharge the jury and postpone the trial of the case, which motion was denied and the case submitted to the jury. Many instructions were asked by counsel on both sides looking to the question of damages and exceptions were taken to the refusal of the court to give those instructions. In its general charge the court said: “ The only question is a clear-cut question ; it is how much damages did the Bucki Company suffer. This question becomes more difficult by reason of facts and circumstances attending the writs of attachment. At the time the writs of attachment were levied there were two common law suits commenced, both of which have been terminated. That is one attending circumstance. The other is that the Atlantic Lumber Company cancelled its contract or considered it cancelled. That is, the Atlantic Company refused and ceased to deliver any more logs to the Bucki Company. So that the three combining circumstances, the levy of the writs of attachment, the ceasing to furnish logs and the common law suits unite in being the cause for subsequent suffering of damage by the Bucki Company. ******* But in this case the attachment did not cause the stoppage of the furnishing of logs, nor did the issuing of the attachment cause the institution of the common law suits. ******** I have therefore, as you have seen in the course of the case, granted a motion to exclude from your consideration all testimony as to damages for loss of credit and all testimony as to a profits the Bucki Company might have made in the future procuring capital, in procuring lands, in procuring logging P ants and procuring logs, at a profit, and so manufacturing lumber therefrom at a profit. « T xi * * * * * * * * be ere^ore instruct you gentlemen that the damage must J^n ned to the damages suffered by the detention of the °r t e time being; those damages that have arisen by the 142 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. detention, of and taking the mill properties from the possession of the plaintiff.” Without further quotations, enough appears to show the general scope of the rulings of the court in reference to the measure of damages, and even conceding that its action, as said by the Court of Appeals, “ is, in several particulars, subject to the criticism which is levelled at it by some of the other numerous assignments of error,” we are of opinion that there was no such substantial error as justifies a reversal of the judgment. That there may be such certainty of profits as in some actions for breach of contract will justify their recovery is undoubtedly true. Howard v. Stillwell & Bierce Manufacturing Company, 139 IT. S. 199, 206; Cincinnati Gas Company v. Western Siemens Company, 152 U. S. 200; Anvil Mining Company v. Humble, 153 U. S. 540, 549. If this action had been one by the Bucki Company against the Atlantic Company to recover damages for a breach of its contract to deliver logs, the inquiry as to profits might have been broader than was permitted in the present case. But, as pointed out in the charge of the court, the failure of the Atlantic Company to further deliver logs was not caused by or the direct result of the attachments. By signing these bonds the surety did not agree to become responsible for all the damages which the Bucki Company might sustain by every act of the Atlantic Company, but simply that it would be responsible for the damages resulting directly from the attachments. The direct result of the attachments was the placing of a lien upon the realty, and for a certain time interrupting the Bucki Company’s business by taking possession of its personal property, and the damages wnic resulted directly from these alone were the damages which t e surety company agreed to become responsible for. The co very properly admitted in evidence, and permitted the jury consider the net profits which had been earned from the carr^ ing on of the business in the few months prior, not as in an of itself constituting the measure of damages, but as ten mg to show what damages the Bucki Company sustained by ® brief interruption of its business. When the lien on the re was ended and the personal property restored, the atttac men mcclung v. penny. 143 189 U. S. Syllabus. had spent their force and the surety company became responsible for all the damages attributable directly to the attachments. The failure to further deliver logs, and the reflection on the credit of the Bucki Company by the bringing of the actions may also have damaged or added to the damages of the Bucki Company, but such result was not due to the attachments. The Atlantic Company and not the surety company was the party responsible therefor. Neither can we see that there was error in refusing to discharge the jury and postpone the trial. A postponement or continuance is largely within the discretion of the trial court, and unless that discretion is shown to have been abused there is no sufficient ground for reversal. It does not appear that any witness had been discharged or any books or documents in possession of the counsel sent away during the trial, and there was no offer then and there to present further testimony. It does not seem to us that the Bucki Company was prejudiced by the ruling of the court in this respect. The liability for counsel fees and the true measure of damages are the main questions in the case. This latter question was presented in different forms and with various limitations, but we think the rulings of the trial court thereon were substantially correct. We see no error in the record which justifies a reversal of the judgment, and it is Affirmed. McCLUNG v. PENNY. error to THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA. No. 384. Argued March 6,1903.—Decided AprU 6,1903. It must appear that this court has jurisdiction of the case before it can inquire whether the territorial court has committed any error in its decision or in permitting the action to be maintained, and such jurisdiction oes not exist if the value of that which is in controversy does not exceed $5000. 144 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. Where it appears that the matter in dispute is only the possession of certain public land for which a contested entry has been made and it is clear from the facts that such possession is worth much less than $5000, the judgment of the territorial court will not be reviewed. The relinquishment of rights under a homestead or preemption entry opens the land to entry by another; and a second entryman may, if there has b.een no contest, perfect a title, but if the records show that there has been a contest and the successful contestant relinquishes, a party subsequently entering the land is charged with notice of the equitable rights of the unsuccessful contestant which can be enforced whenever the title passes from the government. This was an action of forcible entry and detainer, commenced by Penny, the defendant in error, in the Probate Court of Kay County, Oklahoma Territory, a court adjudged by the Supreme Court of the Territory to have jurisdiction in such actions by virtue of sec. 4805, art. 13, chap. 67, and sec. 1562, art. 15, chap. 18, Rev. Stat. 1893. A judgment for the plaintiff was affirmed by the Supreme Court of the Territory, 11 Oklahoma, 474, and thereupon the case was brought here on a writ of error. The testimony on the trial developed these facts: The parties contested in the Land Department the right to enter the tract in controversy as a homestead. The plaintiff’s contention was sustained, and he was permitted to make entry. Having received the homestead certificate, he commenced this action. Mr. S. H. Harris for plaintiff in error. Mr. J. J. Darling-ton was with him on the brief. Mr. A. G. C. Bierer for defendant in error. Mr. Frank Bale and Mr. C. W. Ransom were with him on the brief. Mr. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. The defendant in error has filed a motion to dismiss the wr^ of error for want of jurisdiction, on the ground that t e of the matter in controversy does not exceed $5000, an support thereof has filed the affidavits of himself an McClung v. penny. 145 189 u. s. Opinion of the Court. others that the reasonable rental value of the land is not more than $620 per annum. The plaintiff in error contends that the matter in dispute is in fact not the possession of the land but the ownership, and at the time the writ of error was allowed he filed the affidavits of four persons, one his counsel, who testified that the action involved both the possession and the ownership of the lands, that the matter in controversy exceeded in value the sum of $6000, that the value consisted in the right of possession and power to relinquish to the government the homestead entry; the others, who stated that the value of such relinquishment was $8000 or $8500. The record shows that in the answer was this averment: “ That said land with the improvements of the defendant thereon is reasonably worth and the relinquishment thereof could be sold for the sum of $5000; that this defendant demands the right to remain in possession of said land by virtue of her vested interest therein, and as against the claims of said plaintiff under his void and unlawful homestead entry, in order to protect the limited title which defendant has acquired in said land, and to acquire a perfect legal title therein, under and by virtue of the laws of the United States ; ” and also that on the trial she testified that the value of the land was $5000. In her answer she set up facts which she insisted showed that she had an equitable right to t e land, and averred that she intended as soon as the patent was issued to the plaintiff to begin an action in the proper court to have the same declared a title in trust for her benefit, an asserted that by reason thereof an action of forcible entry an etainer could not be maintained against her. The Su-th6?1^.^0111*^ Territory’ affirming the judgment, held ate matter in controversy was simply the right of posses-S10“Th't Cl°sed °pinion in these words : 18 W C(°Urt case Kelley v. Dykes, 10 Oklahoma, ^,says. When the matter was finally decided by the Land he^orh1611^ an^ a jUi^merU rendered in favor of the plaintiff, to the possession of the premises was completed.’ Ar- Co‘ v- 64 Pac. Rep. 43 ; Wideman v. Tay-itifi ^C" 615* The entire theory of this action is that pure y possessory. That it deals with the possessory rights vol. clxxxix——10 146 189 U.S. OCTOBER TERM, 1902. Opinion of the Court. and not the ultimate rights of the parties. Questions other than the immediate rights of the parties cannot be litigated in such action. If the party desires to have an adjudication on her right to a resulting trust in the land, she must resort to another forum, and another form of action.” Affidavits on the motion to dismiss show the value of possession to be not more than $640 per annum. Her own allegation in the answer is that the land and the relinquishment thereof were reasonably worth $5000. Her testimony on the trial, and there was none other, was that the land was worth $5000. Affidavits of witnesses assert that the ownership was in controversy and that the value of that ownership with the right of relinquishment was in excess of $5000. Upon these facts we think the motion to dismiss should be sustained. The matter in dispute being only the possession, clearly the value of that possession was but a few hundred dollars. Even if the title had been in controversy, the record up to the time of the decision of the Supreme Court showed that there was not exceeding $5000 in controversy. The Supreme Court held that the matter in dispute was only the right of possession, and that right of possession was all that it decided. If the question of title was involved an action of forcible entry and detainer could not have been maintained, and the Probate Court had no jurisdiction of an action of ejectment. But before we can inquire whether the Supreme Court committed any error in its decision it must appear that we have jurisdiction of the case. Now whether the Supreme Court erred in permitting this forcible entry action to be maintained involves an inquiry whether it erred in permitting an action to be maintaine in respect to something whose value is less than $5000. If t which alone could be in contest in the action and which alone was determined by the judgment is of a value less than $500 , then it is beyond our jurisdiction to inquire Avhether the court erred in permitting the action to be maintained. Further, neither of the four witnesses whose affidavits were filed to secure the writ of error testified directly to the va ue of the land, and while they said that the value of the felinquis ment was from $6000 to $8500, yet clearly the value of a re- McClung v. penny. 147 189 U. S. Opinion of the Court. linquishment cannot be greater than that of the land itself. But what is the relinquishment to which these witnesses refer ? When one has made a homestead or preemption entry he may file in the land office a relinquishment of all rights obtained thereby, and if he does so the land becomes open to entry by another. If there has been no contest and the land records are free from any other claim than that which is relinquished, the second entryman may perfect a title. But if the records of the land office show that there has been a contest, and the successful contestant makes a relinquishment, a third party entering the land is charged with notice of the equitable rights of the unsuccessful contestant; and if, as a matter of law, those rights are entitled to protection, they can be enforced whenever the legal title has passed from the government. In other words, the relinquishment operates only against the party making the relinquishment and does not destroy any adverse rights of which there is in the land office an existing record. The plaintiff, although possession be obtained by him through this forcible entry and detainer action, cannot, by thereafter relinquishing his entry, and permitting some one else to make an entry, destroy the equitable rights, if any, which defendant possesses. Hence, as a relinquishment will not deprive the defendant of her equitable rights, and simply substitutes one party for another in any legal proceedings which she may hereafter institute to assert those rights, it is clear that it cannot have any such value as is ascribed to it in these affidavits. The writ of error is Dismissed. 148 OCTOBER TERM, 1902. 189 U. S. Counsel for Parties. WINEBRENNER v. FORNEY. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA. No. 409. Argued March 6,1903.—Decided April 6, 1903. Where there is a seeming contradiction between two clauses in a proclamation opening lands for settlement, the first clause being a special description of a strip of land, and the second being found in a portion of the proclamation defining the purposes for which the strip is made, the first clause is entitled to preference. The strip of land referred to in the President’s proclamation of August 19, 1893, “ one hundred feet in width around and immediately within the outer boundaries of the entire tract of country to be opened to settlement,” ran around and immediately within the outer boundaries of the body of lands opened for settlement, and not around the outer boundaries of the entire tract specified in the cession and relinquishment of the Cherokee Indians. The appellee holds the government patent to the southwest quarter of section 19, township 26 north, range 1 east, of the Indian meridian in Kay County, Oklahoma Territory. The appellant claimed an equitable right to the land and brought this suit to have the defendant declared a trustee of the title for his benefit. A demurrer to a second amended petition was sustained by the trial court and a decree entered dismissing the suit. This decree was affirmed by the Supreme Court of the Territory, 11 Oklahoma, 565, and from that decision this appeal was taken. The tract is within that portion of the Cherokee Outlet opened to settlement by the President’s proclamation of August 19, 1893, and the only question as agreed by counsel on both sides, is whether appellee was disqualified by reason of beuig within prohibited limits on September 16,1893, the day on whic by the President’s proclamation the land was opened for settlement. J/r. & H. Harris for appellant. Mr. J. J. Darlington was with him on the brief. Mr. A. G. (J. Bier er for appellee. Mr. Frank Dale was with him on the brief. WINEBRENNER v. FORNEY. 149 189 U. S. Opinion of the Court. Mr. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. The President’s proclamation, after reciting that the Cherokee Nation of Indians had “ ceded, conveyed, transferred, relinquished and surrendered all its title, claim and interest of every kind and character in and to that part of the Indian Territory bounded on the west by the one hundredth degree (100°) of west longitude; on the north by the State of Kansas; on the east by the ninety-sixth degree (96°) of west longitude; and on the south by the Creek Nation, the Territory of Oklahoma and the Cheyenne and Arapahoe reservation created or defined by executive order dated August tenth, eighteen hundred and sixty-nine; ” and also that Congress had passed an act authorizing the President of the United States to open to settlement any or all lands included in such cession not allotted or reserved, declared that on September 16, 1893, the lands so acquired would be open to settlement, saving and excepting certain specified tracts and portions, including in the latter the Osage, the Kansas, the Ponca, the Otoe and Missouri reservations. The diagram on the following page shows in a general way the land first above described as ceded and relinquished by the Cherokee Indians, the land opened to settlement, and the excepted reservations. The proclamation declared that the land should, be opened to settlement “ under the terms of and subject to all the conditions, imitations, reservations, and restrictions contained in said agreements, the statutes above specified, the laws of the United tates applicable thereto and the conditions prescribed by this proclamation.’’ The act of 1893, 27 Stat. 640, 643, which is °ne of the statutes referred to, contained this provision: of 0 Person shall be permitted to occupy or enter upon any ? e lands herein referred to, except in the manner prescribed J1 6 Proc^ama^on the President opening the same to ement; and any person otherwise occupying or entering pon any of said lands shall forfeit all right to acquire any of dir ^he Secretary of the Interior shall, under the incc»C 1’)n ^>res^en^j prescribe rules and regulations, not onsistent with this act, for the occupation and settlement of 150 OCTOBER TERM, 1902. Opinion of the Court. 189 U.S. WINEBRENNER v. FORNEY. 151 189 U. S. Opinion of the Court. said lands, to be incorporated in the proclamation of the President, which shall be issued at least twenty days before the time fixed for the opening of said lands. And in the President’s proclamation it was declared: “ Said lands so to be opened as herein proclaimed, shall be entered upon and occupied only in the manner and under the provisions following, to wit: “ A strip of land, one hundred feet in width, around and immediately within the outer boundaries of- the entire tract of country, to be opened to settlement under this proclamation, is hereby temporarily set apart for the following purposes and uses, viz.: “ Said strip, the inner boundary of which shall be one hundred feet from the exterior boundary of the country known as the Cherokee Outlet, shall be opened to occupancy in advance of the day and hour named for the opening of said country, by persons expecting and intending to make settlement pursuant to this proclamation. Such occupancy shall not be regarded as trespass, or in violation of this proclamation, or of the law under which it is made; nor shall any settlement rights be gained thereby.” The defendant was on the day named, September 16, 1893, within the limits of the Ponca reservation, and from such reservation went into the territory, opened the settlement, and made his homestead entry. The contention of the plaintiff is that the strip is to be taken as extending around the outer boundaries of the entire tract specified in the cession and relinquishment of the Cherokee Indians, while the contention of the defendant is that it is to be considered as simply around the outer boundaries of the tract opened to settlement. If the contention of the plaintiff is correct the strip on the north, west and south would be immediately contiguous to the land opened to settlement, while on the east it wTould be a distance of many miles therefrom. If the contention of the defendant is correct it would on all sides be contiguous to such land. There is a manifest equity in the latter contention, especially when we consider the great multitude (according to reports 100,000 and over) who at the 152 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. appointed time surrounded this tract with a view of entering the same and obtaining homesteads. And such we think is the true construction of the proclamation. The strip is described as “ around and immediately within the outer boundaries of the entire tract of country, to be opened to settlement under this proclamation.” If this were all there would be no doubt. The doubt arises from subsequent words, “ said strip, the inner boundary of which shall be 100 feet from the exterior boundary of the country known as the Cherokee Outlet.” It is contended that what was known as the Cherokee Outlet extended from the ninety-sixth to the one hundredth degree of longitude and included the three or four Indian reservations east of the tract opened to settlement. Undoubtedly this entire tract was originally the Cherokee Outlet. Cherokee Nation v. Journey cake, 155 U. S. 196, 206, and treaties cited. It was originally set apart for the use of the Cherokees as a sort of appurtenance to the 7,000,000 acres specifically granted as their reservation. Subsequently, by various treaties, portions of it were withdrawn from the Cherokees’ possession and set apart as reservations for the various tribes named. Still the entire territory was commonly known as the Cherokee Outlet, and was referred to as such in the act of 1893, which ratified the settlement and relinquishment by the Cherokees and authorized the opening to settlement of such portions of the land so ceded and relinquished as the President should determine. There is thus a seeming contradiction between the two clauses of the proclamation. But the first is used in special description of the strip, while the second clause is found in that portion of the proclamation which defines the purposes for which the strip is to be used. As between the two clauses, therefore, the first is entitled to preference, as at that time the attention of the writer must be supposed to have been directed to the location of the strip. But there are other reasons which make more clear the true construction. In addition to the equi y referred to heretofore these matters may be noticed: If the strip was within. the tract to be opened to settlement it was public land, and the President might well set that apart or temporary occupancy by those who were designing to go in 0 WINEBRENNER v. FORNEY. 153 189 U. S. Opinion of the Court. the body of lands to be opened to settlement, whereas if the contention of the plaintiff is correct the President would be setting apart a strip 100 feet in width through lands reserved to certain Indian tribes and allowing a temporary occupancy thereof. We do not mean to deny the power of the President, but it is more reasonable to suppose that he was setting apart a strip of the public domain than a strip of Indian reservations for such temporary occupancy. Further, the last sentence in the paragraph from which the second clause is taken says that the occupancy of the strip “ shall not be regarded as trespass, or in violation of this proclamation, or of the law under which it is made; nor shall any settlement rights be gained thereby” —language which is apt if it described a portion of the larger body of the public domain to be opened to settlement and not apt if it referred to a portion of Indian reservations. The significance of the description “ around and immediately within the outer boundaries of the entire tract of country, to be opened to settlement,” is found in the purpose to prevent any one from being upon a railroad right of way running through the tract or upon any of the separate quarter sections or sections reserved by the proclamation for school and county purposes within the limits of the entire body. Smith v. Townsend, 148 U. S. 490; Payne v. Robertson, 169 U. S. 323. Our conclusions, therefore, are that the contention of the defendant is correct, and that the strip was one which ran around and immediately within the outer boundaries of the entire body of lands opened to settlement. ,Such conclusion is in accord with the rulings of the Land Department. It is true that at or about the time of the opening of the land to settlement there were one or two contradictory orders and dispatches sent out from that department, but these were simply responses to requests for information and made without any hearing from parties interested adversely, and it is also true that in the subsequent consideration ° the question there were some differences of opinion between successive Secretaries of the Interior, but the final conclusions were in harmony with the views we have expressed. Cagle v. Mendenhall, 20 L. D. 446 ; 26 L. D. 177 ; Welch n. Butler, 21 154 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. L. D. 369 ; Brady v. Williams, 23 L. D. 533 ; 25 L. D. 55 ; 25 L. D. 402. The judgment of the Supreme Court of Oklahama is Affirmed. Mr. Justice White and Me. Justice Peckham dissented. SAWYER v. PIPER. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 225. Argued April 6, 7, 1903.—Decided April 27,1903. The mere averment of the existence of a Federal question is not sufficient to give this court jurisdiction, but as held in Hamblin v. Western Land Company, 147 U. S. 531, a real, and not a fictitious, Federal question is essential to the jurisdiction of this court over the .judgments of state courts. Where the only Federal question alleged is that the refusal of the state court to allow the plaintiff in error to file a supplementary answer in a suit, in which foreclosure and sale had been decreed and sustaine by the highest court of the State, was a taking of property without due process of law, and a denial of the equal protection of the laws, and the trial court does not appear to have abused its discretion, there is no re Federal question involved and the writ of error will be dismissed. On April 27, 1897, Daniel S. Piper, the defendant in error, commenced a suit in the District Court of Steele County, Minnesota, against the plaintiffs in error and L. C. Woodman. T e complaint alleged the ownership by the Sawyers of a tract containing 790 acres, upon which were several mortgages, allo them fully set forth and all belonging to the plaintiff. It also averred an agreement, made on February 19, 1895, by the terms of which the Sawyers were to pay plaintiff the sum of $20,40 , with, in addition, monthly payments of $100 ; that the Sawyer® were to convey the land to plaintiff; that he should execute a deed to them, the deed to be placed in escrow in the han s o Woodman, the other defendant, and to be delivered to t em on full payment of the sums named ; with a proviso that upon SAWYER v. PIPER. 155 189 U. S. Statement of the Case. failure of the Sawyers to make payment of the $20,400, with the monthly additions of $100, all their rights under the contract should cease and determine. The complaint further alleged a failure to make the monthly payments. The prayer was for a judgment of strict foreclosure of the contract unless redeemed within a year by the payment of the amount due with interest, or, in the alternative, if the court should deem it inequitable to adjudge a strict foreclosure, that the contract and all the mortgages be foreclosed by the sale of the mortgaged premises, and for such other and further relief as should seem just and equitable. The defendant Woodman, who held the deed in escrow, made no defence. The Sawyers answered, admitting the allegations of the complaint in respect to the mortgages and contract, and alleged that by such contract the amount due the plaintiff was fixed at $20,400, which included interest upon all the mortgages up to February 19, 1895. They also averred that the plaintiff had commenced in the same court an action of ejectment, which was still pending, and therefore this action should be abated. In his reply the plaintiff admitted the commencement of the action of ejectment, but alleged that it had been dismissed prior to this suit. On the trial the Sawyers offered the plaintiff a decree of foreclosure for the $20,400, named in the contract, and all unpaid monthly payments, which offer was declined. The court thereupon found the facts in respect to the mortgages and agreement as alleged in the complaint ; ruled that such agreement did not extinguish by merger or otherwise the several mortgages, and that the plaintiff was entitled to foreclosure of each of the mortsras’es for the amount due thereon, and rendered judgment of foreclosure and sale accordingly. The case was taken to the Supreme Court of the State, which held, 73 Minnesota, 332, that the prior mortgages were merged in the agreement, which created an equitable mortgage on the land, and remanded the case with instructions to the court below to determine the amount due upon such equitable mortgage and amend its findings of fact and conclusions of law accordingly. On the second trial, the Sawyers applied for leave to file a supplementary answer, setting forth their offer on the first trial to let judgment and decree be entered for the fore 156 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. closure of the equitable mortgage and the refusal of the plaintiff to accept such offer, and asserting that thereby the plaintiff had waived the lien of such equitable mortgage and precluded himself from foreclosing the same; and further, that a judgment in plaintiff’s favor foreclosing said lien for any sum would deprive them of property without due process of law and deny to them the equal protection of the laws. The court declined to permit the filing of such supplementary answer, amended its findings of fact and conclusions of law, so as to show that the defendants had defaulted in the monthly payments referred to, and that therefore the equitable mortgage had become due, and entered a decree of foreclosure thereof and for the sale of the mortgaged premises. This decree was taken to the Supreme Court and affirmed, 78 Minnesota, 221, and thereupon this writ of error was sued out. Joseph A. Sawyer for plaintiffs in error. Mr. S- IF. Childs was on the brief. Mr. Robert Taylor for defendant in error. Mr. Frank F Kellogg, Mr. Wesley A. Sperry and Mr. Lewis L. Wheelock were on the brief. Mr. J ursTicE Brewer, after making the foregoing statement, delivered the opinion of the court. In their application for leave to file a supplementary answer the plaintiffs in error averred that to render a decree foreclosing the equitable mortgage would, under the circumstances, be a taking of property without due process of law and denying to them the equal protection of the laws, and claimed “ the protection guaranteed to all citizens of the United States by t e provisions of section 10 of Article I of the Constitution of t e United States and of section 1 of the Fourteenth Amendmen to the Constitution of the United States.” While they t us asserted the existence of a Federal question, yet it is wellsett that the mere averment of such a question is not sufficient, said in Hamblin v. Western Land Company, 147 U. S. 531, SAWYER v. PIPER. 157 189 U. S. Opinion of the Court. “ A real, and not a fictitious, Federal question is essential to the jurisdiction of this court over the judgments of state courts. Millinger v. Hartupee, 6 Wall. 258; New Orleans v. New Orleans Water Works Co., 142 U. S. 79, 87. In the latter case it was said that ‘ the bare averment of a Federal question is not in all cases sufficient. It must not be wholly without foundation. There must be at least color of ground for such averment, otherwise a Federal question might be set up in almost any case, and the jurisdiction of this court invoked simply for the purpose of delay.’ ” See also Wilson v. North Carolina, 169 IT. S. 586; St. Joseph Grand Island Railroad Co. v. Steele, 167 IT. S. 659 ; New Orleans Waterworks Co. v. Louisiana, 185 IT. S. 336. We think this case comes within that rule. Rulings in respect to the amendment of pleadings are largely within the discretion of the trial court, and unless a gross abuse of that discretion is shown there is no ground for reversal. Gormley v. Bumjan, 138 IT. S. 623. Here the trial court refused to permit any amendment of the pleadings, for a supplementary answer is substantially such an amendment. We cannot see that the trial court abused its discretion, even if that were a Federal question and properly before us for consideration. All the facts m reference to the original mortgages and the agreement were set forth m full in the original complaint, and relief was asked in the alternative—either a strict foreclosure of the agreement, or, if that were deemed inequitable, a foreclosure of the original mortgages. The defendants in their answer set up all their efences to plaintiff’s claim of relief upon the facts stated in the complaint. That at the hearing they offered to consent to a ecree of foreclosure of the equitable mortgage created by the agreement (which offer was declined by the plaintiff) did not pay the debt or release the property from the liens. Debts are cot paid nor liens cancelled in that way. A defendant cannot y o ering on a trial to consent to a judgment or decree for a part of the claim sued on, prevent the plaintiff from subse-quen y obtaining the judgment or decree demanded by the ac s o the case, although it be that which had been offered also declined. All the facts were before the trial court as 158 OCTOBER TERM, 1902. 189 U. S. Syllabus. well as the Supreme Court, and the decision was that which right and justice demanded. There is no merit in the defence which was sought to be interposed, and certainly nothing which calls upon this court to interfere with the decision of the state court. The writ of error is Dismmed. THE OSCEOLA. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 98. Argued December 2,1902.—Decided March 2,1903. 1. The law both in England and America is settled as to the following propositions: (1) That a vessel and her owners are liable, in case a seaman falls sick or is wounded in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued. (2) That the vessel and her owners are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supp y and keep in order the proper appliances appurtenant to such ship. (3) That all the members of the crew, except perhaps the master, are, as between themselves, fellow servants, and hence seamen cannot re cover for injuries sustained through the negligence of another member of the crew beyond the expense of their maintenance an cure. (4-) That the seaman is not allowed to recover an indemnity for the neg ligence of the master, or any member of the crew, but is entit e to maintenance and cure, whether the injuries were receive rom negligence or accident. ,. 2. Section 3348, Rev. Stat, of 1898 of Wisconsin, providing that every s ip> boat or vessel used in navigating the waters of that State shall be ia for all damages arising from injuries done to persons or property t er® and that the claim therefor shall constitute a lien upon such ship,, or vessel, is confined to cases where the damage is done by those in c a of a ship, with the ship as the “offending thing.” Cases o am* done on board the ship are not, within the meaning of the act, a done by the ship. Such statute does not create a lien which can THE OSCEOLA. 159 189 U. S. Statement of the Case. forced in rem for injuries received by a seaman by the falling of a gangway, resulting as alleged from the master negligently ordering the same to be hoisted while a head wind was blowing. This was a libel in rem filed in the District Court for the Eastern District of Wisconsin, in admiralty, against the propeller Osceola, to recover damages for a personal injury sustained by one Patrick Shea, a seaman on board the vessel, through the negligence of the master. The case resulted in a decree for the libellant, from which an appeal was taken by the owners to the Circuit Court of Appeals, which certified to this court certain questions arising upon the following statement of facts : “ The owners had supplied the vessel with a movable derrick for the purpose of raising the gangways of the vessel when in port, in order to discharge cargo. The appliance was in every respect fit and suitable for the purpose for which it was intended and furnished to be used, and at the time of the injury was in good repair and condition. The gangways which were to be raised by the derrick were each about ten feet long lengthwise of the ship, about seven feet high and weighed about 1050 pounds. In the month of December, 1896, the vessel was on a voyage bound for the port of Milwaukee, and when within three miles of that port, and while in the open lake, the master of the vessel ordered the forward port gangway to be hoisted by means of the derrick, in order that the vessel might be ready to discharge cargo immediately upon arrival at her dock. At this time the vessel was proceeding at the rate of eleven miles an hour' against a head wind of eight miles an hour. Under the supervision of the mate, the crew, including t e appellee Patrick Shea, who was one of the crew, proceeded to execute the order of the master. The derrick was set in place to raise the gangway. As soon as the gangway was swung clear of the vessel, the front end was caught by the ''»id and turned outward broadside to the wind, and by the orce of the wind was pushed aft and pulled the derrick over, " ich in falling struck and injured the libellant. The negligence, if any there was, consisted solely in the order of the master that the derrick should be used and that the gangway 160 OCTOBER. TERM, 1902. Argument for Appellants. 189 U. S. should be hoisted while the vessel was yet in the open sea when the operation might be impeded and interfered with by the wind. The mate and the crew in executing the orders of the master of the vessel acted in all respects properly, and were guilty of no negligence in, the performance of the work. The libel charged negligence upon the owners of the vessel in ‘ requiring and permitting the work of unshipping said gangway to be done while the said vessel was at sea and running against the wind.’ The owners were not present upon the vessel, nor was the master a part owner of the vessel. It is contended that the vessel and its owners are liable for every improvident or negligent order of the captain in the course of the navigation or management of the vessel.” The questions of law upon which that court desired the advice and instruction of the Supreme Court are— “First. Whether the vessel is responsible for injuries happening to one of the crew by reason of an improvident and negligent order of the master in respect of the navigation and management of the vessel. “ Second. Whether in the navigation and management of a vessel, the master of the vessel and the crew are fellow servants. “ Third. Whether as a matter of law the vessel or its owners are liable to the appellee, Patrick Shea, who was one of the crew of the vessel, for the injury sustained by him by reason o the improvident and negligent order of the master of the vesse in ordering and directing the hoisting of the gangway at t e time and under the circumstances declared ; that is to say, on the assumption that the order so made was improvident an negligent.” JTr. C. H. Van Alstine for appellants. A proceeding in rem in the admiralty, is a proceeding to giv effect to a maritime lien and such a lien must alwaj s exis form the basis of such a proceeding. Beane v. The » 2 Curt. 72; The Bock Island Bridge, 6 Wall. 213; The•-sair, 145 U. S. 335, 347; The Yankee Blade, 19 How. 82, , The Glide, 167 U. S. 606, 612. • a does The maritime lien then is but an incident, a security, an THE OSCEOLA. 161 189 U. S. Argument for Appellants. not exist in favor of one to whom the owner of the vessel is not liable in personam founded upon some maritime contract or tort connected with the vessel. It necessarily follows that the vessel is not responsible unless appellants are liable in personam to appellee under some law, maritime or state, for the damages caused by the negligent order of the master, and such law gave him a lien upon the vessel as security for the payment of his damages. The maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. The Lottawanna, 21 Wall. 558. See the Laws of Oleron relating to seamen, Art. 6 ; Appendix to 30 Fed. Cas. p. 1174; the Laws of Wisbuy, Art. 18; Appendix to 30 Fed. Cas. p. 1191; the Laws of Hanse Towns, Art. 39 ; Appendix to 30 Fed. Cas. p. 1200; the Marine Ordinances of Louis XIV, sections 11 and 12, title Fourth; Appendix to 30 Fed. Cas. p. 1209. The substance of these laws, to the effect that if a seaman be wounded in the service of the ship or fall sick during the voyage, he shall be paid his wages and cured at the charge of the ship, has been adopted in this country, The Alexandria, 17 Fed. Rep. 390, but these laws are insufficient to give appellee a lien upon the vessel for damages based on mental and physical pain and loss of earning capacity. The court cannot make the law, it can only declare it. If, within its proper scope, any change is desired in its rules, other than those of procedure, it must be made by the legislative department. The Lottawanna, 21 Wall. 576. As the maritime law of this country is silent in respect to the claim made in the libel, and as the case must be decided according to law, it is evident that the court must—if it has the right so to do apply the municipal law, for as we have already seen it cannot extend the maritime law beyond its established limits. As, however, the appellee resorted to a libel in rem, the court !s bound by the maritime law. Homer Ramsdell Trans. Co. v. Compagnie Gen. Trans., 182 IL S. 406; The City of Nor-walk, 55 Fed. Rep. 107. y the maritime law of this country the liability of the ves-vol. clxxxix—11 162 OCTOBER TERM, 1902. Argument for Appellants. 189 U. 8. sel owner, in cases like the present, is limited to medical and surgical attendance, and wages to the end of the voyage. While there are some reported cases in admiralty, holding that a seaman injured in the service of the ship by the negligence of the master, has a cause of action to recover damages from the owner for such personal injury, there is no reported case holding that he has a lien upon the vessel, and the cases holding the owner liable in persona m are rested on the common law, as that law was understood by the courts deciding them. Prior to the decision of Ross v. Railway Company, 112 U. S. 377, decided December 8, 1884, and overruled in Railway Company v. Conroy, 175 U. S. 323, there is no reported case in the Federal courts of a suit by a seaman against a vessel, or its owners, to recover damages for a personal injury caused by the negligence of the master in the navigation or management of the vessel, excepting Daub v. Railway Company, 18 Fed. Rep. 625. As to fellow servant relations, see The Titan & The SiUs, 23 Fed. Rep. 313; The A. Heaton, 43 Fed. Rep. 592; The Sachen, 42 Fed. Rep. 66; McCullough?s Adm. v. N. T., etc., Steamboat Co., 20 U. S. App. 570; Quin v. Lighterage Co., 23 Fed. Rep. 363; Olsen v. Navigation Co., 44 C. C. A. 51, which were cases decided according to the common law. See also Quebec Steamship Co. v. Merchant, 133 U. S. 375; Homer Ramsdell Co. v. LaCompagnie Gen. Trans., supra’, Railway Co. v. CW«/, 175 U. S. 323; Hedley n. S. S. Co., 1 L. R. Q. B. 58; Halleck, n. Deering, 161 Massachusetts, 469; Gabrrelson v. Waydell, 135 N. Y. 1. As the suit at bar is in rem, it must be decided under the maritime law and under that law the liability of the owner of a vessel in cases like the present is limited to medical and surgical attendance and wages to the end of the voyage. Bu if the court has the right to apply to this case any part of the municipal law, sound reason and natural justice requires only that the owner of the vessel shall be bound to use reasonab e care to furnish a seaworthy vessel, sufficient and safe appliances, and sufficient and competent seamen and officers, and that t e law of assumption of risk should be applied to the seamen. The master of a vessel, it is true, is vested with considera e THE OSCEOLA. 163 Igg u g. Argument for Appellants. power over the seamen, but he has not the power exercised by masters under ancient maritime law. He has, however, power to compel obedience by the seamen to his orders issued in the navigation and management of the vessel, by forfeiture of wages and imprisonment. Rev. Stat. sec. 4596. But whatever power the master has, he is invested with it Try the maritime, law, not by the owner of the vessel. The most reasonable and proper construction of the Wisconsin statute makes it apply to cases where the ship itself, and not one of its appliances, directly produces the damage as the last link in the chain of events commencing with negligence or misconduct in the navigation of the vessel as the first or proximate cause, and it is submitted that such is the construction due to this statute. The Federal courts enforce liens, created by state statutes, upon vessels, when such statutes are not in conflict with the laws and usages of the United States, because, and only because, the lien touches a subject within the constitutional jurisdiction of the Federal courts, and it necessarily follows that they cannot go beyond the state or municipal law creating the cause of action and lien. Bigelow v. Anderson's Adm., 34 U. S. App. 261, 273; The City of Nor walk, 55 Fed. Rep. 98; Sherlock v. AUing, 93 U. S. 104; The Corsair, 145 U. S. 347. Where a cause of action depends upon general law, the Federal courts are not bound by the state decisions. Baltimore As Ohio R. R. Co. v. Baugh, 149 U. S. 368, 370. By the common law of Wisconsin the master is not liable to his servant for a personal injury caused by the negligence of a fellow servant, and whether the relation of fellow servants exists, in a given case, is not to be determined by the rank or grade of the offending servant, but by the nature of the act in the performance of which the injury was inflicted, without regard to the rank of the offending servant. If the negligence of the servant causing the injury was in respect to an act that the aw implies a contract duty on the part of the master to per-°rin, and the offending servant has been charged by the master with the performance of that act, then such servant is an agent of the master, but as to all other acts he is a fellow serv 164 OCTOBER TERM, 1902. Argument for Appellee. 189 U. S, ant of the servant injured. Dwyer v. Am. Ex. Co., 82 Wisconsin, 307; Stutz v. Armour, 84 Wisconsin, 623; Cadden v. Am. Steel Barge Co., 88 Wisconsin, 409; Hartford v. Railway Co., 91 Wisconsin, 374; Klochinski v. Shores Lumber Ci?., 93 Wisconsin, 417; McMahon v. Ida Mining Co., 95 Wisconsin, 308; Albrecht v. Railway Co., 108 Wisconsin, 530, 538; Wiskie v. The Montello Granite Co., Ill Wisconsin, 443, and cases cited. The rule in Wisconsin is that all servants charged by the master with the duty of furnishing another servant with a place to work, or with appliances to work with, or with fellow servants, is an agent of the master for those purposes, but in every other case all servants of a common master, engaged in the same general undertaking, are fellow servants. None of the Wisconsin cases cited involve maritime torts; there are, however, two such cases closely, at least, analogous in their facts, in which different conclusions were reached. See Matthews v. Case, 61 Wisconsin, 491; Thompson v. Herman, 47 Wisconsin, 602. Mr. John H Roemer for appellee. As this case is in rem unless a lien exists by virtue of the statute of Wisconsin or by the maritime law, or unless appellants have waived the objection by appearing personally, giving an undertaking for the release of the vessel and litigating upon the merits, the action cannot be maintained. The sovereignty of the State of Wisconsin extends to the center of Lake Michigan, and its laws so far as they do not conflict with the laws of the United States passed in the regulation of commerce and navigation, are operative within the boundaries of that State. If a state statute gives a right of action touching a su ject of maritime nature, the admiralty can administer the law by a proceeding in rem, if the statute grants a lien, or va pf sonam, no lien being granted. The Corsair, 145 U. S. 33 , Bigelow n. Nickerson, 70 Fed. Rep. 113. Sec. 3348, Wisconsin Statutes of 1898, provides that for all damages arising from injuries done to persons or proper y by such ship, boat or vessel, a lien is given which may en forced by proceeding in admiralty, etc. THE OSCEOLA. 165 189 U. S. Argument for Appellee. Whether this statute creates any new cause of action or merely deals with causes already maintainable at common law or in admiralty has never yet been determined by judicial construction. If the statute merely applies to causes in personam already maintainable under the statute, the common, or the maritime law, it is effective to create liens in all cases within its scope, and such liens may be enforced by proceeding in rem in admiralty. Mendell v. The Martin White, Hoff. Op. 450 ; Case No. 9419 Fed. Cases ; The J. E. Rumbell, 148 U. S. 1 ; The Oregon, 45 Fed. Rep. 62 ; The Oregon, 158 U. S. 186 ; The Ji F. Warner, 22 Fed. Rep. 342. The subjects of admiralty jurisdiction include “all affairs relating to mariners, whether ship officers or common mariners, their rights and privileges respectively ; their office and duty ; their wages ; their offences, whether by wilfulness, casualty, ignorance, negligence or insufficiency, with their punishments.” Chamberlain v. Chandler, 3 Mason, 242. The rule of the English courts that unless the owner is liable at common law the vessel cannot be held in admiralty, has been rejected in this country. Homer Ramsdell Transportation Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406. As to jurisdiction in cases of marine torts, see The Mariana Flora, 11 Wheat. 54 ; The Pdlm/yra, 12 Wheat. 1 ; The Explorer, 20 Fed. Rep. 135 ; The Wanderer, 20 Fed. Rep. 140 ; The Max Morris, 24 Fed. Rep. 860 ; The Max Morris, 28 Fed. Rep. 881 ; Steamer Max Morris v. Curry, 137 U. S. 1. If it should be determined that the proceeding should have been commenced in personam and not in rem, the question cannot be raised at this time. Betts, Adm. Pr. 99 ; The Zeno-bia, 1 Abb. Adm. 48 ; Roberts v. Huntsville, 3 Woods, 386 ; The Union, 4 Blatchf. 90 ; The White Squall, 4 Blatchf. 103 ; Monte A., 12 Fed. Rep. 331 ; The Williamette, 70 Fed. ^P- 874 ; Leathers v. Blessing, 105 U. S. 626 ; Chamberlaji/n v. W, 21 How. 554 ; The Charles Morgan, 115 U. S. 69 ; 2 brown’s Civil & Adm. Law, p. 400 ; The Warren, 2 Ben. 498 ; Ae Bilboa, Lush. 149. There is a conflict of opinion as to whether or not the vessel 166 OCTOBER TERM, 1902. 189 U.S. Argument for Appellee. and its owners are liable in admiralty for the negligence of the master in the management and navigation of the ship, proximately causing injury to an ordinary seaman; that the vessel and its owners are responsible in such cases is supported by the better reasoning. Peterson v. The Chandos, 4 Fed. Rep. 645 ; The Clatsop Chief, 8 Fed. Rep. 163 ; The Titan, 23 Fed. Rep. 413 ; The A. Heaton, 43 Fed. Rep. 592, and cases cited; The Julia Fowler, 49 Fed. Rep. 277 ; The Frank and Willie, 45 Fed. Rep. 494; McCullough'1 s Admx. v. Steamboat Co.,% U. S. App. 570 ; 61 Fed. Rep. 364 ; Chicago, M. & St. P. R-Co. v. Ross, 112 U. S. 377 ; Leathers v. Blessing, 105 U. 8.626; The St. Lawrence, 1 Notes, Cas. Adm. & Ecc. 556, 566; 14 Jur. 534; Keating v. Pac. St. Whaling Co., 21 Washington, 415; The Miami, 93 Fed. Rep. 218 ; Oleson v. Oregon, C. & N. Co., 104 Fed. Rep. 574. Passengers have often maintained libels, as well against the ship carrying them as against other ships, for personal injuries caused by negligence for which the owners of the ship libelled were responsible. The New World, 16 How. 469; The Washington, 9 Wall. 513 ; The Juniata, 93 U. S. 337; The City of Panama, 101 U. S. 453, 462. The sixteenth rule in admiralty, which directs that “ in all suits for an assault or beating upon the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only,” does not a ect libels for negligence. Leddy v. Gibson, 11 Ct. Sess. Cas. ( ser.) 304, distinguished. No reason can be assigned why te owners of a vessel should be held less liable to a seaman for t e negligence of the master in a court of admiralty than in a cour of common law. Courts of admiralty have always consi ere seamen as peculiarly entitled to their protection. Seamen may recover their wages by libel in personam against eit er owners or the master, or by libel in rem against the ship. pard v. Taylor, 5 Pet. 675, 711; Bronde v. ATawn, ’ Temple n. Turner, 123 Massachusetts, 125,128; Ru e 1 miralty. Their lien on the ship or its proceeds takes prec ence of all other claims, except, perhaps, claims for sa va°gei) for damages by collision owing to the fault of their s ip-Adm. sec. 69, and cases cited ; Norwich Co. v. Wrig , THE OSCEOLA. 167 189 U. S. Argument for Appellee. 104,122. A seaman, taken sick or injured or disabled in the service of the ship, has the right to receive his wages to the end of the voyage, and to be cured at the ship’s expense. Harden v. Gordon, 2 Mason, 541 ;• The George, 1 Sumner, 151; Reed v. Canfield, 1 Sumner, 195 ; Sherwood v. Hall, 3 Sumner, 127. The cases relied upon by claimants, that the master of the vessel and the appellee were fellow servants, are common law cases and can be distinguished from this. Gabrielson v. Waydell, 135 N. W. 1; Hedley v. Pimkney <& Sons S. S. Co., 1 L. R. Q. B. 58; Kelleck v. Deering, 161 Massachusetts, 469; Matthews v. Case, 61 Wisconsin, 491, distinguished and see the only case in which the precise point in question has been squarely raised and decided, Thompson v. Hermann, 47 Wisconsin, 602, and numerous cases cited. See also Railway Co. v. Conroy, 175 U. S. 323 ; Union Pacific Ry. Co. v. Fort, 17 Wall. 553; Railway Co. v. Ross, 112 U. S. 377. But to the general rule there are certain well defined exceptions, recognized by both state and Federal courts, some of which are applicable to the case at bar. Where a master abdicates from control and management of his business, and puts the whole powrer of superintendence into other hands, he necessarily has one or more vice principals. Any person to whom is committed under such circumstances the entire control of all the servants, including the power to hire and discharge, is a vice principal for whose negligence in the matter of the control of the servants, and the management of the business, the master is liable to the servants. Sherman & Redfield on Negligence (5th ed.), secs. 230, 233, and cases cited; Railway Co. v. Ross, 112 U. S. 377; Railway Co. v. Baugh, 149 IT. S. 364; Railway Co. v. Peterson, 162 U. S. 347; Railway Co. v. Keegan, 160 U. S. 259; Railwaxj Co v. Conroy, 175 U. S. 323 ; Crispin v_ Babbitt, 81 N. Y. 516; 20 Am. & Eng. Ency. of Law, 147; Johnson v. First National Bank, 79 Wisconsin, 414. See the following cases as to fellow servants or vice principal: arrison v. Railroad Co., 77 Michigan, 409; Malcolm v. Ful- 152 Massachusetts, 428 ; Carlson v. N. W. Telephone Ex-c ange Co., 63 Minnesota, 428 ; Tailor v. Railway Co., 121 In 168 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. diana, 124; Railway Co. v. May, 108 Illinois, 288; Gormky v. Vulcan Iron Works, 61 Missouri, 492; Smith v. Wabash Railway Co., 92 Missouri, 366; Schroeder v. Railway Go., 108 Missouri, 322; Lasky v. Railway Co., 83 Maine, 461; Patton v. Railway Co., 96 North Carolina, 455; McGovern n. Bailway Co., 123 New York, 281; Eldredge v. Steamship Co., 134 New York, 187; Railroad Co. v. Fort, 17 Wallace, 553; Borgman v. Railway Co., 41 Fed. Rep. 667; Thompson v. Railway Co, 14 Fed. Rep. 564. The analogies of the general rule of the municipal law exempting the master from liability for injury to a servant caused by the negligence of a fellow servant, do not apply to the master of a vessel and ordinary seamen when the vessel is at sea. One of the purposes for which the master is employed is to exercise authority and control over the crew in the management and navigation of the ship; in the exercise of that authority and control he is the representative of the owners and not the fellow servant of the crew. Me. Justice Brown, after making the foregoing statement, delivered the opinion of the court. In the view we take of this case we find it necessary to express an opinion only upon the first and third questions, which are in substance whether the vessel was liable in rem to one of the crew by reason of the improvident and negligent order of the master in directing the hoisting of the gangway for the discharge of cargo, before the arrival of the vessel at her dock, and during a heavy wind. As this is a libel in rem it is unnecessary to determine whether the owners would be liable to an action in personam, either in admiralty or at common law, although cases upon this subject are not wholly irrelevant. 1. If the rulings of the District Court were correct, that the vessel was liable in rem for these injuries, such liability must be founded either upon the general admiralty law or upon a local statute of the State within which the accident occurred. As the admiralty law upon the subject must be gathered from the accepted practice of courts of admiralty, both at home and abroad, we are bound in answering this question to examine THE OSCEOLA.. 169 189 U. S. Opinion of the Court. the sources of this law and its administration in the courts of civilized countries, and to apply it, so far as it is consonant with our own usages and principles, or, as Mr. Justice Bradley observed in The Tottawanna, 21 Wall. 558, “ having regard to our own legal history, Constitution, legislation, usages, and adjudications.” By Article VI of the Rules of Oleron, sailors injured by their own misconduct could only be cured at their own expense, and might be discharged’; “ but if, by the master’s order and commands, any of the ship’s company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in that case they shall be cured and provided for at the cost and charges of the said ship.” By Article 18 of the Laws of Wisbuy, “a mariner being ashore in the master’s or the ship’s service, if he should happen to be wounded, he shall be maintained and cured at the charge of the ship,” with a further provision that, if he be injured by his own recklessness, he may be discharged and obliged to refund what he has received. Practically the same provision is found in Article 39 of the Laws of the Hanse Towns; in the Marine Ordinances of Louis XIV, Book III, Title 4, Article 11; and in a Treatise upon the Sea Laws, published in 2 Pet. Admiralty Decisions. In neither of these ancient codes does there appear to be any distinction between injuries received accidentally or by negligence, nor does it appear that t e seaman is to be indemnified beyond his wages and the expenses of his maintenance and cure. We are also left in the , r 1 including this item, as above charged, were ap-the acennn« a When the accounts so approved were submitted to disallowed ?ng °fficers’ a11 the charges for travel included in that item were act of Anm + 10T un<^er tbe provisions of the sundry civil appropriation Xlt Z8t 18L T’ 28 Stat- 372-416> -Wch made it the duty of the mar-or the nearest- a- antS ^efore nearest Circuit Court commissioner hearing commitm*3^ °fficer bavin" jurisdiction under existing laws, for a ing officers allow 4a^’n^ bad ^or trial. Subsequently the account-After suit wa h claimant of this item twenty-seven dollars. in respect to tlT u°U^ couit’tbe claimant’s deposition was taken thousand four h.! he proved that, of his own knowledge, eleven Portation of said'** 1 tllirty_tllree miles were traveled in the trans-the travel he cnni^180?1618’. deput*es and guards. As to the remainder of had been nerform testify of bis own knowledge, because that travel e y certain of his deputies who were not then in the 202 189 U.S. OCTOBER TERM, 1902. Opinion of the Court. However equitable the charge may have been in this particular case, there is no authority of law for its allowance. There is, however, a special provision in the last clause of sec. 829, by which “ in all cases where mileage is allowed to the marshal he may elect to receive the same or his actual travelling expenses, to be proved on his oath, to the satisfaction of the court.” This seems to contemplate the very contingency which arose in this case, of a number of miles actually and necessarily travelled in excess of the direct route from the place where the process was returned to the place of service. It reimburses the marshal his expenses but denies him a profit upon them. This item must be disallowed. (2.) Item 10. “ For attendance of the marshal at court by deputy, 20 days at $5 per day, $100.” The fact that it did not appear whether business was transacted in court on these days, or whether the judge was present in court, was immaterial, in Territory, and who, he supposed, were in Alaska or the Philippine Islands. The depositions of those deputies were not taken. No other evidence was offered by the claimant to establish the number of miles actually traveled than the approval of the District Court for Oklahoma and his own deposition subsequently taken, as above stated. If the approval of his account by said District Court is competent evidence to establish the number of miles actually traveled, this court finds the ultimate fact that he travele 51,355 miles. If such approval of the District Court is incompetent to establish the number of miles actually traveled, this court finds that the number of miles so traveled was 11,433 in the transportation of prisoners, deputies and guards, as before set forth. Item 16. For service of a capias and transportation (mileage) of a deputy, prisoner and guard. The capias was issued by the clerk of the Unite States District Court at Topeka, Kansas, on an indictment found by t e grand jury at Topeka. The capias was received by the claimant in & homa City and was executed by arresting the prisoner named in the capias, who was transported to the United States District Court at Wichita, The claimant charged six cents a mile for going sixty-two miles, rom Oklahoma City to Perry, to serve the writ, $2 for the service of the wr^, and ten cents per mile each for the deputy, prisoner and guard foi 11 mi e $33.30, from Perry, Oklahoma, to Wichita, Kansas, and one meal for prisoner, 75 cents, making a total of $39.77. . Item 24. For actual expenses for transporting a prisoner from Pr field, Ohio, to the penitentiary at Brooklyn, New York, under a warran^ commitment. The warrant of commitment was issued at the marshal transported the prisoner on that warrant to Spring e » ' soa UNITED STATES v. NIX. i89 U. S. Opinion of the Court. view of the fact that the court was opened for business by order of the judge. United States v. Finnell, 185 U. S. 236 ; JTc-Mullen v. United States, 146 U. S. 360. For aught that appears, the attendance may have been under the circumstances in which a similar charge was allowed in United States v. Pitman, 147 U. S. 669. Where the court is opened for business by order of the judge, it is the duty of the marshal to attend, and there is no reason why he should not receive his per diem therefor as if the judge were actually present. This claim is not contested by the government, and should be allowed. (3.) Item 12, for the transportation of prisoners arrested under warrants issued by United States commissioners, involves two questions: first, whether travel should have been charged from the place of arrest to the nearest Circuit Court commissioner, or to the office of the commissioner nearest to the place where the crimes with which the prisoners were charged were committed ; second, whether, assuming the position of the claimant in this particular to be correct, as matter of law, there was sufficient evidence of the number of miles travelled to entitle him to the charge of $5135.50. By “ An act to provide a temporary government for the Territory of Oklahoma,” 26 Stat. 81, a certain portion of the Indian Territory was set off as a territorial government under the where the prisoner was temporarily detained as a witness for the United States in a counterfeiting case. The prisoner having been discharged as a witness in that case at Springfield the marshal continued his transportation from Springfield to New York city on the original warrant of commitment. The prisoner, with a deputy and guard, arrived in New York city too late for the prisoner to be received at the Brooklyn penitentiary on the day of arrival in New York, and he escaped from the custody of the deputy on the night of the same day while they were going to supper in the hotel where they were stopping. The marshal made every effort to retake the prisoner and failed, $90.50. Conclusion of Law. Upon the foregoing findings of fact the court decides, as a conclusion of aw, that the claimant recover judgment of and from the United States in the sum of one hundred and eight dollars and ninety-five cents ($108.95) on items 2 and 16 of Finding III. All other items disallowed. 204 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. name of Oklahoma. By section 9 the judicial power of the Territory was vested in certain courts, and the usual executive and judicial offices created. By section 10, “ persons charged with any offence or crime in the Territory of Oklahoma, and for whose arrest a warrant has been issued, may be arrested by the United States marshal or any of his deputies, wherever found in said Territory, but in all cases the accused shall be taken, for preliminary examination, before a United States commissioner, or a justice of the peace of the county, whose office is nearest to the place where the offence or crime is committed. All offences committed in said Territory, if committed within any organized county, shall be prosecuted and tried within said county.” By section 28, “ the Constitution and all the laws of the United States not locally inapplicable shall, except so far as modified by this act, have the same force and effect as elsewhere within the United States.” This is the act upon which the claimant relies for his right to travel, while, upon the other hand, the government contends that this act was repealed by a general act of August 18,1894, 28 Stat. 372, making appropriations for sundry civil expenses for the year 1895, one of the clauses of which, under the head of “ Judicial,” provides that “ it shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offence, to take the defendant e-fore the nearest Circuit Court commissioner or the nearest ju i cial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial, and the officer or magis trate issuing the warrant shall attach thereto a certified copy o the complaint, . . . and no mileage shall be allowe any officer violating the provisions hereof.” The object of this statute was manifestly to amend Rev. a • sec. 829, which provided that the mileage of the marsha or transportation of prisoners should be computed from the p ace where the process was served to the place where it w as returne This statute provides that he shall be taken to the Circuit ou^ commissioner nearest the place of arrest, regardless o t e by whom the warrant was issued. Inasmuch as the ater is a general one, applicable to marshals generally throug UNITED STATES r. NIX. 205 189 U. S. Opinion of the Court. the country, we do not think it was intended to repeal or interfere with the former act, providing specially for persons charged with any offence or crime in the Territory of Oklahoma, and that in all cases, whether the crime was committed against the Territory or the general government, the accused shall be taken before a commissioner, whose office is nearest to the place where the offence or crime was committed. The rule of statutory construction is well settled that a general act is not to be construed as applying to cases covered by a prior special act upon the same subject. On this principle we held in Townsend v. Little, 109 U. S. 504, that special and general statutory provisions may subsist together, the former qualifying the latter. See also Churchill v. Crease, 5 Bing. 177; Mag one v. King, 51 Fed. Rep. 525, and cases cited ; State v. Clarice, 25 N. J. Law, 54. It would seem that this construction works no particular hardship upon the government, since in all cases where the criminal is unable to give bail he is required to be ultimately transported for trial to the county wherein the crime was committed. The second question connected with this item is whether the marshal produced sufficient evidence of the number of miles travelled. His claim was for 51,350 miles at ten cents per mile. He was unable to prove, of his own knowledge, more than 11,433 miles. As to the remainder he could not testify of his own knowledge, because that travel had been performed by certain of his deputies who were not then in the Territory, and who, he supposed, were in Alaska or the Philippine Islands. The depositions of those deputies were not taken. He showed, however, t at his accounts had been allowed by the district judge. That was sufficient to cast upon the government the burden of showing any error of fact in his account. United States v. Jones, U- S. 483. In that case we held that the approval of the commissioner’s account by a Circuit Court of the United States, under the act of February 22, 1875, 18 Stat. 333, was prima j(une evidence of the correctness of the items of that account, 5 m the absence of clear and unquestionable proof of mis-c on the part of the court, it should be conclusive. We 206 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. adhere to that view. It would be an insupportable burden upon the officers of courts if, every time a question was made before the accounting officers of the Treasury of the correctness of their account, they were required to produce affirmative evidence of every item. This was evidently not contemplated by the statute. Notwithstanding this, however, there is no doubt that the account may be impeached for error of law. McMullen n. United States, 146 U. S. 360. This item should have been allowed in full, less the amount paid. (4.) Item 24, for actual expenses in transporting a prisoner from Springfield, Ohio, to the penitentiary at Brooklyn, New York, under a warrant of commitment, is the only other one contested. The prisoner with a deputy and guard arrived in New York too late for the prisoner to be received at the Brooklyn penitentiary on the same day, and that night he escaped from the custody of the deputy while they were going to supper in the hotel where they were staying. As there is no finding, either by the district judge in approving his accounts or by the Court of Claims of due diligence on the part of the officer to prevent the escape, the item was properly disallowed. The presumption is that he escaped by negligence. State v. Hunter, 94 N. C. 829 ; State v. Lewis, 113 N. C. 622; Shattuck v. State, 51 Mississippi, 575. The judgment of the Court of Claims will therefore be versed and the case remanded to that court for fwt proceedings in conformity with this opinion. DAVIS & FARN UM MFG. CO. c. LOS ANGELES. ÜüT 189 U. S. Statement of the Case. DAVIS AND FARNUM MANUFACTURING COMPANY v. LOS ANGELES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA. No. 507. Submitted January 13, 1903.—Decided March 2,1903. 1. Where a bill is based not only upon diversity of citizenship, but also upon the alleged unconstitutionality of municipal ordinances as impairing the obligation of a contract, an appeal lies to this court and the whole case is opened for consideration. Where a statute delegates powers to a city, the ordinances of the municipality are the acts of the State, and their unconstitutionality is the unconstitutionality of a state law within the meaning of sec. 5 of the Circuit Court of Appeals act. 2. A court of equity has no general power to enjoin or stay criminal proceedings unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there, or to prohibit the invasion of the rights of property or the enforcement of an unconstitutional law. In re Sawyer, 124 U. S. 200. One who has contracted to deliver gas machinery to a gas and fuel company has no standing in a court of equity to restrain a city from enforcing an ordinance prohibiting the erection of gas works within a portion of the city in which the erection of gas works was not prohibited when the contract was made, on the ground that such ordinances are repugnant to t e Federal Constitution as impairing the obligation of a contract, it not appearing that the plaintiff has any contract with the city or that the gas and fuel company would not, or could not, by reason of insolvency, respond to its claim under the contract. This was a bill in equity filed in the Circuit Court for the outhern District of California by appellant, a citizen of Massa-c usetts, to restrain the city of Los Angeles and its officers rom enforcing certain municipal ordinances, prohibiting the erection or maintenance of gas tanks or reservoirs within certain portions of the city. The gravamen of the bill was that on September 1, 1901, ^aro me W. Dobbins made a contract with the Valley Gas and Ue, omPany, a California corporation, to build certain gas or for her, including all things necessary for the manu- 208 OCTOBER TERM, 1902. 189 U.S. Statement of the Case. factlire, recovery and storage of gas, on lands thereafter to be designated; that on September 17 the appellant made a contract with the Gas and Fuel Company to erect upon Mrs. Dobbins’ premises a water tank and gas holder, having a capacity of 100,000 cubic feet of gas, and that immediately thereafter it constructed and prepared the material and machinery necessary for the erection of the tank and gas holder, and shipped the same to Los Angeles; that on September 28, Mrs. Dobbins purchased certain lands in Los Angeles, which were within the limits wherein it was lawful to erect gas works as described in a municipal ordinance adopted August 26,1901, and on November 1 applied to the board of fire commissioners for a permit to erect such gas works; that on November 22, her petition came on for hearing before the fire commissioners, and after proof had been made that all provisions of prior ordinances had been complied with, the matter was duly considered, and finally resulted, November 29, in a vote to grant a permit to erect and maintain the gas works. That upon the 22d day of November, Mrs. Dobbins’ contractors began at once to lay the foundation for said works at a cost of upwards of $2500, when on November 25, the city adopted an ordinance, amending that of August 26, 1901, including her property in the prohibited territory for the erection or maintenance of gas works, which ordinance, however, seems to ave proved defective, and subsequently in February, 1902, cause certain of the employés of the Gas and Fuel Company to be ar rested, charging them with a violation of this ordinance. Su se quently under new proceedings certain employés of the p ain were arrested and the work stopped. , Another ordinance was passed on March 3,1902, also amen ing that of August 26, 1901, and other arrests were ma e o the employés for a violation of this ordinance. It was aver that the gas works are in an uncompleted condition, e^P^se the elements and in danger of being destroyed, and t a a the aforesaid ordinances were adopted by the common coui at the instigation of the Los Angeles Light Company, w has enjoyed a monopoly of the gas business for the as years. DAVIS & FARNUM MFG. CO. v. LOS ANGELES. 209 189 U. S. Argument for Appellant. A demurrer was filed to this bill by the city for want of equity and of jurisdiction, which was sustained by the court, and the bill dismissed, 115 Fed. Rep. 537, apparently upon the ground that a court of chancery has no power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there. Whereupon an appeal was taken to this court. Jfr. Henry T. Helm, Mr. Lynn Helm, Mr. Edward C. Bailey, Mr. Henry T. Lee and Mr. J. R. Scott for appellant. I. As the foundation of this action lies in the invalidity of the ordinances of November 25, 1901, and of March 3, 1902, adopted by the city council of the city of Los Angeles, alleged in the bill of complaint to be in contravention of the provisions of the Constitution of the United States, an appeal lies directly from the Circuit Court to this court, and this court having jurisdiction of this case for the purpose of determining whether such ordinances are in contravention of the Constitution of the nited States, there exists the power in this court to consider aU other questions arising on the record. Act of March 3, 91, chapter 517, section 5 ; 26 Statutes at Large, 826; Hcrr^r v. United States, 143 U. S. 570 ; Chappell v. United 17*Ln S’ Columbia Township Trustees, • S. 472, 478 ; Penn Mutual Life Tnsurance Company n. 168 U. S. 685, 695. I* ordinances in question of the city of Los Angeles eir f3 d exerc^se by the city of the legislative powers del-ga e to it by the State, and were, therefore, by legal intend-en the equivalent of laws enacted by the State itself. City ^ay Company v. Citizens’ Street Railroad Company, 166 u' s' 142’ 148 ’ Qastyht Company v. St. Paul, 181 thp nr r^'e or^nance °f November 25, 1901, was repealed by same ,!\nanCe °f March 3’ 1902‘ The ordinances are on the subieet matter> The latter ordinance covers the whole Am A- pla ^le earlier and will repeal the former. 23 iv T.ng’ ncy’of Law’485- e ordinance of March 3, 1902, is invalid for the rea-vol. clxxxix—14 210 OCTOBER TERM, 1902. Argument for Appellant. 189 U. S. son that it is in violation of the Constitution of the United States in that it impairs the obligation of the contract between appellant and the Valley Gas and Fuel Company to erect and construct the water tank and gas holder upon the premises of Caroline W. Dobbins. Farrington v. Tennessee, 95 U. S. 679; Sturges v. Crowninshield, 4 Wheat. 122; Detroit v. Detroit Citizens’ Street Rail/road Co., 184 U. S. 368. V. The ordinance of March 3, 1902, is invalid for the reason that it is in violation of the vested rights acquired by Caroline W. Dobbins, the employer of the appellant, by virtue of the purchase by her of lands within the limits of the district within which it was lawful to erect gas works, by the terms of the ordinance adopted August 26, 1901, and by virtue of the permit granted to her by the board of fire commissioners of the city of Los Angeles on the 22d day of November, 1901, under the existing “ building and fire ordinance ” of the city of Los Angeles. (a) The rights acquired by Caroline W. Dobbins, the employer of the appellant, were vested rights. Calder v. Dull, 3 Dall. 394; Farrington v. 95 U. S. 679; Steamship Co. v. Jolijfe, 2 Wall. 457; Worth n. Cransen, 7 How. 118; Classen n. Chesapeake Guano Co., 31 Atl. Rep. (Maryland) 808; Roberts v. Brooks, 71 Fed. Rep. 914; Baltimore Trust Co. v. Baltimore, 64 Fed. Rep. 153 ; Levis v. City of Newton, 75 Fed. Rep. 884 ; Cleveland City Railroad Co. v. City of Cleveland, 94 Fed. Rep. 385 ; City Railway Company v. Citizens’ Street Dail-road Co., 166 U. S. 562. (5) The appellant, as the contractor, doing the work for ar oline W. Dobbins under her permit granted to her by the boa of fire commissioners, was entitled to the benefit and protection of the vested rights which she had acquired by virtue o legislative authority. Reagan v. Farmers' Loan & Trust o., 154 U. S. 362, 393. . VI. The ordinance of March 3, 1902, adopted by the city council of the city of Los Angeles is invalid and void as eprw ing the appellant of property without due process of law. y of Chicago v. Netcher, 183 Illinois, 104; Frorer v. People, DAVIS & F ARNUM MFG. CO. v. LOS ANGELES. 211 189 U. S. Argument for Appellant. Illinois, 171; Ramsey n. People, 142 Illinois, 380; Braceville Coal Co. v. People, 147 Illinois, 66; Cooley, Const. Lim. *393. VIL The ordinance of March 3, 1902, is not within the police power, nor is it a proper police regulation. (a) The determination by the legislative body of what is a proper exercise of the police power is not final or conclusive, but is subject to the supervision of the courts. People v. Budd, 117 N. Y. 1; Lawton v. Steele, 152 U. S. 133 ; Brandon on the Fourteenth Amendment, p. 172. (ó) The police power has reference to those things which affect the public health, the public safety, the public comfort, or the public morals. Noel v. People, 187 Illinois, 587; State v. Donaldson, 41 Minnesota, 74; City of Indianapolis n. Consumer# Gas Trust Company, 39 N. E. Rep. (Indiana) 433; Barthet v. of New Orleans, 24 Fed. Rep. 564; City of Buffalo v. Chadeayne, 31 N. E. Rep. (N. Y.) 443; New Orlea/ns Gas Company v. Louisiana Light Company, 115 IT. S. 650 ; Walla Walla City v. Walla Walla Water Company, 172 IT. S. 115. Also citing and distinguishing Beer Company v. Massachusetts, 97 IT. S. 25; Fertilizing Company v. Hyde Park, 97 IT. S. 659; v. Mississippi, 101 IT. S. 814; Slaughter House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City Live-Stock Landing o., Ill U. S. 746; Ex parte Lacey, 108 California, 326; Ba/r-bwr v. Connolly, 113 IT. S. 27; Kno&ville v. Bird, 12 Lea, 121; avenport v. City of Richmond, 81 Virginia, 636. VUL This ordinance is invalid because it is an attempt on e part of the city council of the city of Los Angeles to define an make that a nuisance which is not a nuisance per se. Gas works are neither in their erection nor maintenance a nuisance per se, and it is not within the power of the city council of the city of Los Angeles to pass an ordinance making a a nuisance which is not a nuisance per se, nor could such a ec aration make it a nuisance unless it in fact had that charac-560 K °rlean8 Gas Co- Louisiana Light Co., 115 IT. S. V;Lates v. Milwaukee, 10 Wall. 497; C., R. I. & P. R. R. 66 • HIíhoís, 25,44; Everett v. Council Bluffs, 46 Iowa, v Th^0^ Lee, 96 California, 354; County of Los Angeles ollywood Cemetery Association, 124 California, 344; 212 OCTOBER TERM, 1902. Argument for Appellant. 189 U. S. Grossman v. Oakland, 36 L. R. A. (Oregon) 593; Stockton laundry Case, 31 Fed. Rep. 680; In re Hong Walt, 82 Fed. Rep. 623; Ex parte Whitall, 98 California, 73; Wood on Nuisances, sec. 744. (J) The power granted in the city charter to abate nuisances does not give power to prevent except in those cases of nuisances per se ; and those things which only become nuisances because of the method of their operation cannot be prevented and stopped under the power to abate until it has been demonstrated they are nuisances. Lakeview v. Letz, 44 Illinois, 81, 83. The charter of the city of Los Angeles is a general law of the State of California. Charter of the City of Los Angeles, Statutes of California, 1889, p. 455. There is no reservation of power in the charter. (c) The provision of section eleven, Article XI, of the constitution of the State of California, as follows: “ That any county, city or township may make and enforce within its jurisdiction all such local police, sanitary and other regulations as are not in conflict with general laws,” is not a grant of police power. It is simply an extension to counties, cities and towns of the right to exercise powers that are inherent in the legislature as the representative of the people; but it is in no sense an enlargement of that power. Ex parte Campbell, 74 California, 20 ; Ex pa/rte Roach, 104 California, 272. IX. The ordinance of March 3, 1902, is invalid and is in violation of the provisions of the Constitution of the United States prohibiting any State from making or enforcing any law which shall abridge the privileges or immunities of citizens o the United States. It is invalid as being in violation of the rights of the plain tiff to engage in and conduct a lawful business of erecting gas works in the city of Los Angeles. Brandon on the Fourteen Amendment, p. 65 ; Corfield v. Coryell, 4 Wash. C. C. 371. (a) The business of erecting or maintaining a gas wor is a lawful occupation. New Orleans Gas Company v. Loni8M>na> Light Co., 115 U. S. 650, 658, 669 ; Constitution of the State o California, Article XI, sec. 19 ; Ex parte Johnston, 69 Pac. P 973; People v. Stevens, 62 California, 209, DAVIS & BARNUM MFG. CO. v. tOS ANGRLRS. 21S 189 U. S. Argument for Appellant. (J) A municipality has not the power or right to impose additional burdens or terms or conditions to the exercise of rights created by the sovereign authority of the State in its constitution. Restrictions in the exercise of these rights are not regulations, and at least impair if they do not deny the exercise of the right. Township of Summit v. N. Y. N. J. Td. Co., 57 N. J. Eq. 123; City of Atlanta v. Cate City Gas-light Co,. 71 Georgia, 106; Michigan Telephone Company v. City of Benton Harbor, 121 Michigan, 512; Wisconsin Telephone Company v. City of Oshkosh, 62 W isconsin, 32; Appeal of Pittsburg, 115 Pennsylvania, 4; Borough of Millvale v. Evergreen Railway Co., 131 Pennsylvania, 1; Harrisburg City Pass. R. R. Co. v. City of Harrisburg, 149 Pennsylvania, 465 ; State v. Flad, 23 Mo. App. 185; Hodges v. Telegraph Co., 72 Mississippi, 910. The ordinance is also invalid as being unreasonable. X. A court of equity has power to restrain by injunction a municipality from instituting criminal proceedings when such criminal prosecutions are threatened under color of an invalid ordinance for the purpose of compelling the relinquishment of a property right. Central Trust Compa/ny v. Citizens' St. R. Co., 80 Fed. Rep. 225; S. C., 82 Fed. Rep. 1; Reagan v. Trust Co., 154 U. S. 362; Southern Express Co. v. Ma/yor, etc., of Ensley, 116 Fed. Rep. 756; Lottery Co. v. Fitzpatrick, 3 Woods, 222; Fed. Cases No. 8541; Springhead Spinning Compa/ny v. Riley, L. R. 6 Eq. 588; Osborn v. United States Ba/nk, 3 Wheat. 738; Wood v. City of Brooklyn, 14 Barb. 425; Manhattan Iron Works v. French, 12 Abbott’s N. C. 446; Rushville v. Rushville Natural Gas Co., 132 Indiana, 575; Davis v. Fasig, Indiana, 271; Platte de D. Canal <& Milling Co. v. Lee, Mayor, 29 Pac. Rep. (Colo.) 1036; Smith v. Bangs, 15 Illinois, ’ ^a^Qr °f R(Eti,aiore v. Radecke, 49 Maryland, 218; Cape May & L. R. Co. v. City of Cape May, 35 N. J. Eq. 409; Los ngeles Cit/y Water Co. v. Cit/y of Los Angeles, 103 Fed. Rep. 711; City of Atlanta v. Gate City Gaslight Co., 71 Georgia, 196; dy of Austin v. Austin City Cemetery Association, 28 S. W. ep. (Texas) 528; Port Mobile v. Louisville & N. Railway ®°. Itep. (Alabama) 106 ; Smyth v. Ames, 169 U. S. 466, 214 OCTOBER TERM, 1902. 189 Ü. S. Argument for Appellee. 517; Detroit v. Detroit Citizens'1 Street Railway Co., 184 U. S. 368, 378; Vicksburg Water Works v. Vicksburg, 185 U. S. 65,82. Citing also contra, opinion of Honorable Olin Wellborn, District Judge, in the case at bar, appearing in the record, reported : Danis de Rarnum Manufacturing Co. v. City of Los Angeles, 115 Fed. Rep. 537. Citing and distinguishing, Ex parte Sawyer, 124 U. S. 200; Suess V. Noble, 31 Fed. Rep. 855; J/. Schandler Bottling Co. v. Welch, 45 Fed. Rep. 283; Minneapolis Brewing Co. v. McGillivray, 104 Fed. Rep. 272. XI. The plaintiff has no remedy against the defendant for damages for the wrongful arrest of its employes or for the destruction of its business and property rights. Stedmani. Sa/n Francisco, 63 California, 193; Chope v. Eureka, 78 California, 508; Doeg v. Cook, 126 California, 213. XII. It is not enough that the plaintiff has a remedy at law. It must be as efficient and as prompt in its administration as the remedy in equity. Boyce v. Grundy., 3 Peters, 377; Walla Walla City n. Walla Walla Water Co., 172 IT. 8.1,12; Insurance Co. v. Bailey, 13 Wall. 616,621; Eilbourn v. bun derland, 130 IT. S. 505, 514; Tyler n. Savage, 143 U. 8. 79, 95; 2 Story, Eq. sec. 928. Mr. Albert H. Crutcher, Mr. W. B. Mathews, Mr. Le Compti Davis and Mr. J. R. Rush for appellee. I. A court of equity has no power to interfere with the en forcement of criminal laws. Ex parte Sawyer, 124 U. 8. 20 , 225 ; Suess v. Noble, 31 Fed. Rep. 855 ; Hemsley v. Myers, 45 Fed. Rep. 286; Fitts v. McGhee, 172 IT. S. 528; Minneapolis Brewing Co. v. McGillivray, 104 Fed. Rep. 259. II. A bill in equity will not lie to restrain prosecutions unde a municipal ordinance upon the mere ground of its allege validity. City of Denver v. Beede, 54 Pac. Rep. 62 ; dens of St. Peter’s Episcopal Church v. Town of Wasiwy , 13 S. E. Rep. 700; State v. Wood, 56 S. W. Rep. 477; CngW v. Dahmer, 21 L. R. A. 84; Wolfe v. Burke, 56 . • ’ Wallack v. Society, 67 N. Y. 28; West v. Mayor, 10 Paige, , of Bainbridge v. Reynolds, 111 Georgia, 758; Patterson, 34 S. E. Rep. (Georgia, 1900) 600. DAVIS & FARNUM MFG. CO. r. LOS ANGELES. 215 189 U. S* Argument for Appellee. III. The cases relied upon by appellant are not in point, oi* have been overruled. Stone v. Mississippi, 101 IT. S. 814; Fitts v. McGhee, 172 IT. S. 528 ; Hemsley v. Myers, 45 Fed. Rep. 283 ; Davis Far num Mfgt Co. v. City of Los Angeles, 115 Fed. Rep. 537, and cases therein cited. IV. The enactment of ordinance No. 7029 (New Series) is fully within the police powers delegated to the city of Los Angeles by the State. Constitution of California, Art. XI, sec. 11; Charter of Los Angeles, Art. I, sec. 2 ; Art. Ill, secs. 27-40; Stats. 1889, p. 458; Dillon Municipal Corporations, 4th ed. vol. 1, secs. 141, 400 ; Butcher £ Union, etc., v. Crescent City, 111 U. S. 746; Slaughter House Cases, 16 Wall. 62. V. The city of Los Angeles, under its police power, was authorized to enact and enforce ordinance No. 7029, irrespective of the question as to whether or not gas works are a nuisance per se. Ex parte Schrader, 33 California, 283 ; Ex pa/rte Lacy, 108 California, 326; Ex pa/rte Heilbron, 65 California, 609 ; Canfield v. United States, 167IT.S.518; Crowley v. Christensen, 137 U. S. 87; Barbier v. Connolly, 113 IT. S. 27; Hing v. Crowley, 113 IT. S. 703 ; Cleveland v. Gaslight, etc., 20 N. J. Eq. 201; Dillon Mun. Corp. 4th ed. vol. 1, pp. 216, 472; Ex parte Byrd, 4 Am. St. Rep. 328; Welch v. Hotchkiss, 12 Am. Rep. 385; Cronin v. People, 37 Am. Rep. 564; Milne v. Davidson, 16 Am. Dec. 189; Milwaukee v. Gross, 91 Am. Dec. 472; Tiedeman Police Powers, vol. 2, p. 740. VI. The court in determining the validity of this ordinance can take into consideration only the face of the ordinance and such facts as the court takes judicial cognizance of. Powell v. Commonwealth of Pennsylvania, 127 IT. S. 678, and cases therein cited. VII. A municipality cannot give, grant, barter away or part with its right to exercise the police power delegated to it by the State. Cooley Cons. Lim. 6th ed. p. 341; Russell Police owers, p. 88 ; Dawenport v. City of Richmond, 81 Virginia, 636; Newton v. City of Galveston, 13 S. W. Rep. 368; Butch-Unions. Crescent City, 111 IT. S. 746; Northwestern Fertiliz-ln9 Co. v. Hyde Park, 97 IT. S. 659. VIII. All interests in property and rights in contracts, 216 OCTOBER TERM, 1902. Opinion of the Court. 189 ft, g, whether vested or not, are acquired and held by individualsand corporations subject to the right of the State and municipality to exercise their “ police po.wer ” for the protection of the lives, health, safety and comfort of their citizens. 2 Story Cons, sec. 1954; Cooley Cons. Lim. 6th ed. 707; Mugler v. Kansas, 123 U. S; 669 ; Com. v Alger, 7 Cush. 96; Corporation of Knox-mile v. Bird, 12 B. J. Lea, 121; City of Salem v. Maynes, 123 Massachusetts, 372 ; City of New Orleans n. Stafford, 21 Am. Rep. 563; Barbier v. Connolly, 113 U. S. 27; Cleveland v. dir izens* Gas Light Co., 20 N. J. Eq. 206. IX. The allegations in appellant’s bill, as to the unreasonableness of this ordinance, are not sufficient to justify this court in declaring the ordinance void on the ground that it is unreasonable. Barbier v. Connolly, 113 U. S. 27; Hing v. Crowley, 113 U. S. 703; Slack v. Jacob, 8 W. Va. 612; Waltman v. Philadelphia, 33 Pa. St. 212; Munn v. Illinois, 94 U. S. 113; D ar nelly v. Cabanns, 52 Georgia, 212; Wells v. Mayor, 43 Georgia, 67; State v. Schlenker, 51 L. R. A. 351; People v. Cipperly, 4 N. E. Rep. 108; In re Wilshire, 103 Fed. Rep. 620; City of New tony. Joyce, 166 Massachusetts, 83; Harmony- City of Lewiston, 46 Am. St. Rep. 893; Cooley Cons. Lim. 5th ed. 222. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. 1. As the bill in this case is based not only upon diversity of citizenship, but upon the alleged unconstitutionality of the municipal ordinances of November 25,1901, and March 3,1902, as impairing the obligation of Mrs. Dobbins’ contract with the city under prior ordinances, an appeal lies directly to this court, and upon such appeal the whole case is opened for consideration. Horner v. United States, No. 2, 143 U. S. 570; Chappell v. United States, 160 U. S. 499. The State having delegated certain powers to the city, the ordinances of the municipal authorities in this particular are the acts of the State through one of its properly constituted instrumentalities, and their unconstitutionality is the unconstitutionality of a state law within the bAVlS & EARNUM MEG. CO. LOS ANGELES. gl? 189 U. S. Opinion of the Court. meaning of section 5 of the Circuit Court of Appeals act. City Railway Co. n. Citizens’ R. R. Co., 166 U. S. 557; Penn Mutual Life Insurance Co. v. Austin, 168 U. S. 685, 694 ; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142, 148. 2. The court below did not pass upon the validity of these ordinances, but came to the conclusion that a bill in equity would not lie to restrain their enforcement, and in this aspect we shall discuss the case. As the only method employed for the enforcement of these ordinances was by criminal proceedings, it follows that the prayer of the bill to enjoin the city from enforcing these ordinances, or prevent plaintiff from carrying out its work, must be construed as demanding the discontinuance of such criminal proceedings as were already pending, and inhibiting the institution of others of a similar character. That a court of equity has no general power to enjoin or stay criminal proceedings unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there, or to prohibit the invasion of the rights of property by the enforcement of an unconstitutional law, was so fully considered and settled in an elaborate opinion by Mr. Justice Gray, In re Sawyer, 124 U. S. 200, that no further reference to prior authorities is deemed necessary, and we have little more to do than to consider whether there is anything exceptional in the case under consideration to take it out of the general rule. The plaintiff in the case of Sawyer sought to restrain the mayor and committee of a city in Nebraska from removing a city officer under charges filed against him for malfeasance in office. This was held to fall within the general ni e and not within the exception. The general rule that a Circuit Court of the United States, sitting as a court of equity, cannot stay by injunction proceedings pending in a state court to enforce the criminal laws of sue tate, was applied in Rarhrader v. Wadley, 172 U. S. 148, a case where the plaintiff sought to enjoin proceedings agamst im for the embezzlement of the assets of a bank; and ^fitts v. McGhee, 172 U. S. 516, to a suit brought by the re-rest61*-0 vc ra'^roat^ a8a™t the attorney general of the State to i*am im from instituting or prosecuting criminal proceed 218 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. ings to enforce against the plaintiff the provisions of a state law reducing the tolls, which had been exacted of the public by the railroad, of which the plaintiff was receiver. This was held to be in reality a suit against the State to enjoin the institution of criminal proceedings, and hence within the general rule. See also Prout v. Starr, 188 U. S. 537. Plaintiff seeks to maintain its bill under the exception above noted, wherein, in a few cases, an injunction has been allowed to issue to restrain an invasion of rights of property by the enforcement of an unconstitutional law, where such enforcement would result in irreparable damages to the plaintiff. It cites in that regard the case of Reagan v. Farmer^ Loan (& Trust Co., 154 U. S. 362, in which, under a law of Texas giving express authority to a railroad company or other party in interest to bring suit against the railroad commissioners of that State, a bill was sustained against such commission to restrain the enforcement of unreasonable and unjust rates, and in the opinion a few instances were cited where bills were sustained against officers of the State, who, under color of an unconstitutional statute, were committing acts of wrong and injury to the rights and property of the plaintiff acquired under a contract wit the State. It would seem that, if there were jurisdiction in a court of equity to enjoin the invasion of property rights throug the instrumentality of an unconstitutional law, that jurisdiction would not be ousted by the fact that the State had chosen to assert its power to enforce such law by indictment or ot er criminal proceeding. Springhead Spanning Co. v. Riley, 6 Eq. 551, 558. . In order to determine the exact property rights at sta e the case under consideration it should be borne in min a this is not a bill by Mrs. Dobbins, the owner of the land and o^ the proposed gas works, to enjoin the city from interfering wi carrying out the permit she had obtained to erect t ese ga works, nor by the Valley Gas and Fuel Company, wit w she had made a contract to erect these works; but y * ®l contractor, which had made a contract with the Gas an Company to erect for it, and upon premises to be designa e Mrs. Dobbins, a water tank and gas holder; and, wit ou DAVIS & FARNUM MFG. CO. v. LOS ANGELES. 219 189 U. S. Opinion of the Court. alleging that the Gas and Fuel Company had refused to carry out its contract, or pay to plaintiff damages, or that Mrs. Dobbins had refused to settle any claim the Gas and Fuel Company might have against her, seeks to enjoin the city of Los Angeles in the assumed right of Mrs. Dobbins from interfering with its servantsand employés, and from preventing plaintiff from carrying out the work of erecting the water tank and gas holder, and also to desist and refrain from enforcing its ordinances. It sets up no contract of its own with the city which the municipal ordinances have impaired, but a contract of the city with Mrs. Dobbins, to which it was no party, in which it had no direct interest, and that, too, without averring that the Gas and Fuel Company was insolvent, or unable to respond to its claim for damages. It proceeds wholly upon the assumption that the revocation of Mrs. Dobbins’ license will operate injuriously to it, and that it cannot obtain a full and adequate remedy at law by an action against the Gas and Fuel Company upon its contract to pay the price agreed upon between them. It is true the bill is based upon the theory that plaintiff would suffer great and irreparable loss by the interference of the city and by the exposed condition of the works, and that the refusal of an injunction would result in innumerable actions at law and a multiplicity of suits, which would have to be instituted at great expense and without the possibility of recovering indemnity. We are not, however, bound by this allegation, when the acts set forth in the bill show that, if the plaintiff be entitled to a remedy at all, it has an action against the Gas and Fuel ompany, which is presumed at least to be able to respond in amages for all such as plaintiff may have suffered by the interruption of the contract. Whether the Gas and Fuel Company in such action could defend upon the ground that the municipality had forbidden the prosecution of the work, might epen somewhat upon the terms of the contract, and upon the pg of the Gas and Fuel Company to take advantage of the it r er?nce city* As to this we express no opinion. It me t e employés of the plaintiff were arrested, but that fact one wrought no legal injury to the plaintiff, since if it were P evented from any cause for which the Gas and Fuel Com- 220 180 tJ. 8. OCTOBER TERM, 1901 Opinion of the Court. pany were chargeable, it might bring an action for damages against that company, with which alone its contract was made, and recover such damages as it could prove to have sustained. It is true that in a number of cases bills have been sustained by one or more stockholders in a corporation against the corporation and other parties, to restrain the enforcement of an unconstitutional law against the corporation itself, but it has always been held, and general equity rule 94 requires, that such bill must contain an allegation under oath that the suit is not a collusive one to confer on a court of the United States jurisdiction, and must also contain an allegation that the directorsofa corporation have refused to institute the proceedings themselves in the name of such corporation, and the efforts of the plaintiff to secure such action on the part of the directors, and the cause of his failure to obtain it. Dodge v. Woolsey, 18 How. 331; Hawes v. Oakland, 104 IT. S. 450; Corbus v. Alaska Co., 187 U. S. 455. This rule, however, has no application to sub-contractors who stand in no position to enforce the right of their immediate contractors, such as was the Gas and Fuel Company, or of the owner of the property who had agreed with such immediate contractors to do the work. The plaintiff in this case stands practically in the position of one who seeks to take advantage of the unconstitutionality of a law in which it has only an indirect interest, and by the enforcement of which it has suffered no legal injury. In this it stands much in the position of the plaintiff in Tyler v. Court of Registration, 179 U. S. 405, and in Turpin v. Lemon, 187 IT. S. 51; In re Wellington, 16 Pick. 87,96; Sinclair v. Jackson, 8 Cow. 543; Jones v. Black, 48 Alabama, 540; Shehane v. Bailey, 110 Alabama, 308; Dejarnett v. Ilaynes, 23 Mississippi, 600. In this connection, also, the appellant cites the case of Reagan v. Farmers’ Loan <& Trust Co., 154 IT. S. 362, 393, in w we held that the trustee of the bondholders of a railway corporation could maintain a suit against the state railway coinmis^ sion to restrain the enforcement of unreasonable and unjus rates. The case, however, was put upon the express groun that the bondholders were the equitable and the bene cm owners of the property of the corporation, and in that capaci NASHUA SAVINGS BANK v. ANGLO-AMERICAN CO. 221 189 U. S. Syllabus. might “ invoke the judgment of the Federal courts as to whether the contract rights created by the charter, and of which it is thus the beneficial owner, are violated by subsequent acts of the State in limitation of the right to collect tolls.” In that case the bondholders were not only the beneficial owners of the property, but a reduction of the tolls might have resulted in the practical destruction of their securities, and unless the bill were maintained they were practically remediless. The case has but a remote analogy to the one under consideration. As the appellant has shown no legal interest in this litigation, and no lack of a complete and adequate remedy at law, it results that the bill was properly dismissed, and the decree of the court below is therefore Affirmed. NASHUA SAVINGS BANK n regard to the authentication of foreign statutes applies not only to statutes of the States but to the decisions of their highest courts. e Circuit Court of the United States, sitting in New Hampshire, may receive as evidence, when attached to the deposition of the manager of a corporation, who is an attorney and solicitor of the Supreme Court of udicature in England of thirty years’ standing, intimately acquainted * the English Corporation Laws, what purport to be the copies of the aws under which such corporation was organized, and which he testifies were issued by authority, being printed by Her Majesty’s printer, and as such are by law receivable in evidence without further proof, in the 2 d°mestic courts of Great Britain. y subscribing to the stock in a foreign corporation, the subscriber sub-^6C,8 the laws of such foreign country in respect to the powers an o ligations of such corporation, and if the statute under which the 222 189 U. S. OCTOBER TERM, 1902. Argument for Petitioner. corporation is organized and the by-laws of the corporation provide that the directors may from time to time make such calls as they think fit upon members for all moneys unpaid on shares of stock, it is not necessary for the declaration to contain averments either as to the conditions upon which the corporation can make assessments or that the assessments sued for were necessary. There is a presumption of good faith attaching to foreign as well as to domestic corporations. Variances between the allegation and proof must be taken when the evidence is offered, and if such evidence be sufficient to support the verdict the defect in the declaration is cured. Where the bill of exceptions contains nothing to indicate that the call for assessments was not properly made and does not show that it contains all the evidence, this court is at liberty, if the circumstances of the case require it, to infer that ther e was other evidence to support the verdict The sufficiency of evidence cannot be reviewed on writ of error. 3. Where it appears by the articles of association that the remedy by forfeiture and sale for non-payment of assessments is cumulative, such remedy is not a bar to an action at law for the debt, and such sale or forfeiture is not a condition precedent to the right to recover the assessments. 4. Where the statute under which a corporation is organized provides that moneys payable in pursuance of the articles of the company shall be deemed a debt due by such member, it is not necessary to prove an express promise to pay an assessment. This was an action by the defendant in error, a British corporation, in the Circuit Court for the District of New Hampshire, against the Nashua Savings Bank, a New Hampshire corporation, to recover an assessment made by such corporation in pursuance of its charter and by-laws, upon defendant’s subscription to a thousand shares of its stock. The case was tried before the Circuit Judge and a jury, and resulted in a verdict for the plaintiff by direction of the court, and a judgment against the bank in the sum of $7131.10, which was affirmed on writ of error by the Circuit Court of Appeals. 108 Fed. Rep. 764. A/r. «7. . Frank W. Clancy for appellant. Jfr. H. S. Clancy was on the brief. J/r. Special Assista/nt Matthew G. Reynolds for the United States. Mr. Solicitor General Richards, Mr. Special Assistant Attorney Pope and Mr. Ward L. Bartlett were on the brief. Mr. James W. Vroom was on a brief for defendant Prince. Me. Justice Beown, after making the foregoing statement, delivered the opinion of the court. The petition of Leyba, upon which the grant was originally made, and which is the material document in this case, an is in the Spanish language, is thus translated in the record: “City of Santa Fe, May 24, 1728, before the governor and captain general of this kingdom, there was presented this peti tion with its contents: “ Joseph de Leyba, resident of the city of Santa Fe, appear before your excellency in due legal form, and state that in ac cordance with the royal ordinance of his Royal Majesty, enter a piece of land and wood, vacant and unsettled, enoug for half & fancy a of corn-planting land, somewhat more or ess, which is bounded on the east by the San Marcos road, on SENA v. UNITED STATES. 235 189 U. S. Opinion of the Court. south by an arroyo called Cuesta del Oregano; on the west by land of Juan Garcia de las Rivas, and on the north by lands of Captain Sebastian de Vargas. “ Therefore, I ask and pray, your excellency be pleased to make me in the name of His Majesty, a grant for the said piece of land, for myself and my children, heirs and successors, and that the act of royal possession be executed to me whereby I will receive benefit and favor as well as justice which I seek. And I swear in due form that this my petition is not made in malice and as it may be necessary, etc. “Joseph de Leyba.” Annexed thereto is the grant of the governor and captain general of the province, with the condition that the grantees settle the land within the term prescribed by the royal ordinances, and a direction to the alcalde to put the party in possession. Following this is the report of the chief alcalde of the city of Santa Fé, that having taken witnesses and “ inspected the lands and woods prayed for by the said petitioner,” he put him in royal possession by performing the customary ceremonies of livery of seizin. There are two disputed propositions connected with this petition of Leyba’s : (1) As to the quantity of land granted ; (2) as to its boundaries. It is admitted by both parties that the above translation from the record of the quantity of the land granted as a piece of land and wood, vacant and unsettled, enough for ^■fanega of corn-planting land, somewhat more or less,” is incorrect, the original Spanish being as follows: “Registro un aso de trerras y monte, yermo y despdblado, que code media Jonega de maiz de sembradura, poco mas ô menos?' b argument ^ie government is that the quantity covered y e grant was only enough land to plant half a. fanega of n, a ittle more or less, and that as a fa/nega de maiz is a easure of corn which will plant 8.82 acres, half of a fomega « jU tmeasurej 4.41 acres ; the government translation being tledre^S^er a ^ece an(l woods, uncultivated and unset- ’ at will contain half a fanega de maiz de sembradura, a 236 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. little more or less.” The inference from this is that all that was conveyed was a piece of land that “ will contain” enough for half a fenega of maiz. Claimant’s translation, however, of the words “ que cabe ” is that it is a tract of land that “ contains ” within its outer boundaries half &fanega of corn, that is, of land capable of cultivation. The probabilities, aside from the fact that the word “cabe” is a verb of the present tense, favor the construction of the claimant, as the words “ lands and woods ” would hardly be used as descriptive of a tract of four and one half acres. In addition to that, however, the description of quantity is wholly inconsistent with the boundaries, (hereafter stated,) which evidently contemplated a large tract of land, according to the Spanish and Mexican customs of making grants to settle. Indeed, a grant of four and one half acres of land at a distance from any town, city or settlement is so rare that the presumptions are all against it. If the boundaries were defined with accuracy, we should have very little difficulty in holding that they would not be controlled by the vague description of “a parcel of land and woods, uncultivated and unsettled, which includes half &fanega of corn-planting land.” This is the more apparent by an inspection of the subsequent documents, which include a will of Simon de Leyba, son of the grantee, of the year 1783, giving the boundaries of the tract, and a deed of Salvador Antonio de Leyba, grandson of José, to his son in 1834, also describing the lands by similar boundaries. Indeed, none of the subsequent documents make any reference whatever to the h alf fan ega of corn-planting land. The will a so contains a bequest of live stock and farming tools seeming y appurtenant to the ranch and greatly in excess of what won naturally belong to a tract of four and a half acres. . 2. The difficulty, however, is with the description ° e boundaries themselves, which is : “ On the east by the San nx. cos road ; on the south by an arroy o called Cuesta del Oregan ; on the west by land of Juan Garcia de las Rivas, and on north by lands of Captain Sebastian de Vargas.” In t e wi of Simon de Leyba of 1783 the boundaries are the same up the south and east, and on the north “ the road w m g SENA v. UNITED STATES. 237 189 U. S. Opinion of the Court. towards Pecos from the Cerillos, or lands of Captain Sebastian de Vargas,” and on the west “ with the lands of the old Pueblo of the Cienega.” The land is described in substantially the same terms in the deed of 1834. The description of the lands on the east side as bounded by the San Marcos road is clearly defined. The description of the north boundary as the road from Pecos to the Cerrillos is also defined with somewhat less certainty, the lands of Sebastian de Vargas having been located, surveyed and confirmed several miles to the east of the Leyba grant; but upon the west and south the boundaries, even as sworn to orally by witnesses, are so uncertain as to afford little guide to a surveyor in attempting to locate the tract. The west boundary, which is described in the grant as “ the lands of Juan Garcia de las Rivas,” is described in the will of 1783 as “ the lands of the old Pueblo of the Cienega.” While there is some evidence from the archives that the father of Garcia de las Rivas, in 1701, owned a piece of land somewhere west of the Leyba tract, known even then as the old Pueblo of la Cienega, there is nothing to show the east boundary of the Pueblo, and consequently the west boundary of the Leyba tract, he south boundary, said to be “ an arroyo called Cuesta del regano, it seems to be impossible to locate with any degree °. Ce’’tainty> though it was probably near the Coyote Spring, at ,W ic the only house built upon this tract appears to have been ocated. This house long since fell into ruins, and there is no evi ence that it has been occupied since the last owner of the grant, Juan Angel de Leyba, was supposed to have been killed the Indians in 1839. he evidence of possession subsequent to the grant does not m °fC in tbe boundaries, since the land, like ad°S Jr t i*1 Spanish-American territories, was not of a kind as th a.we^ defined, actual and adverse possession, such tion a th CU^ivated land. Tbe most favorable view for petitions r CaU taken of this evidence is that possession of a entip6 T a ^ytain field of arable land may be referable to the when th^ invaded within the boundaries of the grant; but of a h 6 .oundaries themselves are indefinite, the possession ouse is of no value in fixing the boundaries. A grant too 238 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. indefinite to be located and never fixed by any survey, is void as against the United States. As was observed in United State» x. Delespine, of a Spanish grant in Florida, 15 Pet. 319, 335, “ the public domain cannot be granted by the courts.” They may locate the boundaries fixed by grant, but the boundaries must be so fixed as to admit of a survey. United States v. Jfi-randa, 16 Pet. 153, 160; United States x. Ring, 3 How. 773; Villalobos v. United States, 10 How. 541 ; Arivaca Land and Cattle Co. v. United States, 184 U. S. 649, 652. The grant was made and possession was given to the grantee in 1728. Nothing being shown to the contrary, we presume that the possession continued until 1783, the date of the will of Simon de Leyba, to his son Salvador Antonio de Leyba, “whom I recognize as my sole heir.” The next item of interest tending to show possession is the deed of Salvador Antonio de Leyba in 1834 to his son Juan Angel de Leyba, who are both described as residents of the city of Santa Fé, wherein the same boundaries are also given, although the land is called “ the rancho of the Coyote Spring, with its houses and corrals, together with the grant in which the said ranch is situated, which was given to my grandfather by the King of Spain May 25, 1728.” Juan Angel appears to have been killed by Indians a few years after this deed was made, but it seems to have been uncertain whether he was in actual possession of the tract. To rebut the case made by the claimant the government o ■ fered in evidence the depositions of several residents of t at neighborhood, who swore that they had never heard of t e José de Leyba grant, or its boundaries. Objection was ma e to the reading of these depositions upon the ground that t e witnesses named were present in court, and might be swoni orally. It is unnecessary to determine whether the court err in admitting the depositions under such circumstances, m view of the vague and unsatisfactory evidence on behalf of the c aim ant of the boundaries and possession of this tract. Admitting that the documents introduced afforde a su cient presumption of a continued possession from 1738 to there was no evidence of the occupation of the lan J t of member of the Leyba family subsequent to 1839. T is ac SENA v. UNITED STATES. 239 189 U. S. Opinion of the Court. a total absence of any claim to the land made by the last heirs of the occupant, and that the house was allowed to fall into ruins, is strong evidence either that the land was abandoned as not worth cultivating or that a residence there had become too dangerous by reason of the presence of hostile Indians. In this connection the court below found that “ the evidence as to the settlement and occupation of the tract purporting to have been granted, continuity of possession, cultivation, residence, improvement, claim of ownership, notoriety of the grant and knowledge of the existence in the community or by the oldest inhabitants now living, is so vague, contradictory and uncertain as to be almost wholly wanting.” In the absence of clear evidence to the contrary we deem it our duty to adopt the opinion of the court below in that particular. United States v. Pendell, 185 U. S. 189,197. While in construing these Spanish grants, owing to the loose manner in which they were made, and the boundaries described, we have been extremely liberal, still we are bound to consider that grants of this description, as of all others, must be construed favorably to the government, and the grantee is bound to show not only the grant itself but that the boundaries were fixed with reasonable certainty. Slidell v. Grand jean, 111 U. S. 412, 437; United States v. Oregon dec. P. P., 164 U. S. 526, 539. 3. But conceding that an experienced surveyor, acquainted with the land in that neighborhood, might locate the boundaries of this tract, there is a still more serious difficulty in the evidence of abandonment and the laches of the claimant, which defences may properly be considered together. Under our Anglo-Saxon system of jurisprudence, questions of the abandonment of land by the owner rarely arise, since they are usually sold to a purchaser or to the State for taxes ; but the Spanish aw recognizes distinctly the right to abandonment. It is stated 111.1 Partidas, Law 50, p. 365, that “if a man be dissatisfied with his immovable estate and abandons it, immediately he departs from it corporally, with an intention that it shall be no onger his, it will become the property of him who first enters ereon. See also Hall’s Mexican Law, § 1489. The same principle is stated by Escriche, Title “ Abandono de eosas: ” 240 189 ü. S. OCTOBER TERM, 1902. Opinion of the Court. “ If an owner voluntarily abandons a thing, whether personal or real, with intent no longer to count it in the number of his possessions, because it is useless or burdensome, or for mere caprice, he loses his ownership, and the first who occupies it makes it his.” We are also referred by counsel to a law of the Departmental Council of New Mexico enacted in 1831, which declares that “ every individual who abandons the land upon which he has settled and which he acquired by grant, with the intention of establishing himself elsewhere to live there, and does not leave some one to take bis place in ordinary labor, shall lose the real property he had acquired.” See also Landes v. Perkins, 12 Missouri, 238, 256; Sideck n. Duran, 67 Texas, 256. As there is no testimony tending to show that the Leybas ever sought to resume possession of the land after the death of Juan Angel in 1839, there was at least a presumption of abandonment. Not only is there no evidence tending to show possession of the land by representatives of the original grantee since 1839, but for sixty years thereafter there was no attempt made to assert title thereto. By section 7 of the Private Land Claims act, 26 Stat. 854, “ all proceedings ” therein “ shall be conducted as near as may be according to the practice of the courts of equity of the United States,” and by section 13 no claim shall be allowed upon an imperfect title unless “the claimant would have had a lawful right to make it perfect ha the territory not been acquired by the United States,’ an it is one “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. W ie it is true that we have held that evidence of possession since the date of the treaty cannot be regarded as an element going to make up a title, Crespin v. United States, 168 IL S. 5 Hayes v. United States, ITO U. S. 637, 653; Hays v. United States, 175 U. S. 248, 259, it does not follow that abandonmen of the land and failure to assert a title since the treaty may not operate as a bar. It is clear that, in the establishmen a title as of a certain date, possession subsequent to that a SENA v. UNITED STATES. 241 189 U. S. Opinion of the Court. is of no value ; but considering the title to have been sufficient as of that date, failure to assert such title within a reasonable time thereafter opens the case to the defence of laches. In United States v. Moore, 12 How. 209, it was said of a Spanish grant in Louisiana: “We are called on to decide in this case according to the rules governing a court of equity, and are bound to give due weight to lapse of time. The party was under no disability, and slept on his rights, as he now claims them, for nearly fifty years, without taking a single step. He makes no excuse for his long delay, and cannot now get relief by having his title completed. No case has come within our experience, where the obscurity and antiquity of the transaction more forcibly than in the present case, required a court of equity to bar a complainant on legal presumptions founded on lapse of time; and where the bar should take the place of individual belief.” To the same effect are Gildersleeve v. Mew Mexico Mining Co., 161 U. S. 573, and United States v. Martinez, 184 U. S. 441. There are facts connected with this case which render the doctrine of laches peculiarly applicable. This land passed into the possession of the United States under the treaty with Mexico of 1848. Possession of the land had then been abandoned by the descendants of the grantees for at least nine years, and probably longer. In 1854, six years after the treaty, a surveyor general was appointed for New Mexico, 10 Stat. 308, whose duty it was to ascertain the origin, nature, character and existence of all claims to lands under the laws, usages and customs of Spain and Mexico, and report to Congress with a view of confirming bona fide grants, and giving full effect to the treaty. No action appears to have been taken before him to ascertain the validity or boundaries of this grant, although the act seems to have remained in force until 1891, when the Court of Private Land Claims was created. The public land surveys were extended over the tract in 1861 ; homestead and other entries were made, improvements established, patents secured, mines opened and developed, but no attempt made to assert the rights of the grantee or his descendants. The Court of Private Land Claims was established in 1891, and all persons having imper-VOL. CLXXXIX—16 242 OCTOBER TERM, 1902. Syllabus. 189 U. 8. feet titles were required to present them within two years, and all having perfect titles had the right, but were not bound, to apply to that court for confirmation of such title. It was not until 1899 that the petition in this case was filed by a person who appears, in 1895, to have found lineal descendants of the original grantee, from whom he had secured deeds of this abandoned grant, the very existence of which seems to have been forgotten. If this be considered an imperfect grant, the right to file it expired years ago; if it be a perfect grant, as now claimed, we see no reason why the owner may not prosecute his claim in the territorial courts. Without expressing an opinion as to whether this was a perfect or imperfect grant within the meaning of the law, or whether the boundaries might not still be ascertained by a survey, we are satisfied that it is one which the Court of Private Land Claims could not be called upon to confirm, and that, if for no other reason, the petition should be dismissed upon the ground of laches. The decree of the court below is therefore (See note on page 504.) RANKIN v. FIDELITY INSURANCE, TRUST AND SAFE DEPOSIT COMPANY. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 178. Argued February 26, 27, 1903.—Decided April 6,1903. The following propositions may be considered as settled in regar o liability of shareholders of national banks under section 5151, ev. 1. Liability may be established by allowing one’s name to appear books of the corporation as owner, though in fact he be only a p e Nor can the real owner exonerate himself from responsibility yrna colorable transfer of the stock, with the understanding that at ns it shall be retransferred. . .Q 2. Stockholders of record are liable for unpaid installments, t long they may have parted with their stock, or held it for others. 3. A mere pledgee, however, who receives from his debtor a 1 shares, surrenders the certificate to the bank and takes out new RANKIN v. FIDELITY TRUST CO. 243 189 U. S. Statement of the Case. his own name, in which he is described as “pledgee,” and holds them afterwards in good faith, and as collateral security for the payment of his debt, is not subject to personal liability as a shareholder. But it is otherwise, if he allow his name to appear on the book as owner, or being the owner, makes a colorable transfer of the stock. Where it was shown that a trust company loaned on shares of a then solvent and dividend paying national bank, and accepted its stock as collateral, and subsequently the pledgor failed, and the trust company caused the stock to be transferred to one of its employes, paid an assessment subsequently levied upon the stock, and charged it to the pledgor, and frequently wrote to ascertain if there was any market for the stock, stating that it was held as collateral, Held, that although the construction of written instruments is one for the court, where the case turns upon the proper conclusions to be drawn from a series of letters, particularly of a commercial character taken in connection with other facts and circumstances, it is one which is properly referred to a jury, and as this case really turned upon the actual ownership of the shares, such question of ownership was properly left to the jury as one of fact. Held, that the pledgee is not bound by statements made without its knowledge by the assignees of the pledgors upon the schedules of liability to the effect that the pledgee had converted the stock. This was an action at law by the receiver of the Keystone National Bank of Erie, Pennsylvania, against the defendant company, as the actual owner and holder of 172J shares of the capital stock of the bank, standing upon its books in the name o one William W. Hand, to recover an assessment upon the s ai eholders of one hundred per cent made by the Comptroller °f the Currency pursuant to Rev. Stat. sec. 5151. The facts of the case are substantially as follows: On No-vem er 15,1890, Delamater & Co., a banking firm of Meadville, a., orrowed $15,000 of defendant company, in renewal of prior oans, giving therefor their note for sixty days, and as co aeral security deposited 230 shares of the capital stock of eystone N ational Bank of the par value of $100 per share, the name of the individual members of the firm, were valued at the time at par, $23,000; the bank PaiJ111 gj00^ cre(^^5 and for twenty-seven years had regularly certifiant WaS ^en Payi^’ semi'annual dividends. With its Ca. e!.°^ sto°k thus deposited, powers of attorney signed the ln,lv^ua^ ^°Nlers of the stock were also delivered to e en ant. These documents empowered the defendant to standing in The shares 244 OCTOBER TERM, 1902. 189 U.S. Statement of the Case. transfer the shares—the name of the transferee and the attorney being blank. Twenty days thereafter, and on December 5, 1890, Delamater & Co. failed and made a general assignment for the benefit of their creditors, and on December 17, defendant having received notice of the assignment, wrote to the assignees declining to renew the note, but offering to anticipate its payment and return the collaterals. It seems the assets of Delamater & Co. were insufficient for this purpose. On January 10, 1891, defendant sent to the Keystone National Bank of Erie the original certificates, deposited as collateral, and requested the bank to transfer the shares to William W. Hand, a clerk in the employ of the defendant. Three days later, and on January 13, the bank paid a semiannual dividend of two per cent, but it does not appear who received this dividend, which proved to be the last one paid by the bank. The transfer was made on the books of the bank, and new certificates issued in the name of Hand, dated January 15,1891, and were transmitted by the bank to the company, which acknowledged receipt of the stock, and stated that it would like to have a bid for the stock “ if you know of a purchaser.” Hand signed the transfer in blank on the bac o these certificates, and in that form they were retained by t e defendant. There was no receipt for the certificates except a memorandum in the handwriting of the clerk on the stu o the stock book : “ Sent to the Fidelity Insurance, Trust an Safe Deposit Company, Philadelphia, Penn., 1 /IT/ 91- Fourteen months thereafter, and on March 16,1892, the omp troller of the Currency, finding that the capital of tlie was impaired, ordered an assessment of twenty-five per ce the capital stock to make good the deficiency. The assessm upon these shares amounted to $5750. This amount by the defendant and charged on its books to Delamater as an additional advance. Its cheque was sent to tie an a letter signed by Mr. Hand. „ j On December 22, 1892, pursuant to Rev. Stat. sec. 51.> with the approval of the Comptroller of the Currency’ ’ qq ital stock of the bank was reduced from $250,000 to $ > RANKIN v. FIDELITY TRUST CO. 245 189 U. S. Statement of the Case. divided into 1500 shares of $100 each. Thereupon, and on January 24, 1893, the defendant sent to the bank the certificates for 230 shares, and on February 7 received the certificates in the name of Hand, for 172^ shares, being the reduced number. Hand signed a transfer in blank on the back of the certificates, and in that form they remained in the possession of the defendant. On March 20, 1894, the vice president of the defendant company addressed a letter to the bank stating that the company held 172^ shares of the stock registered in the name of W. W. Hand, and requesting a copy of their last statement and any other information regarding the business of the bank, and as to whether there were any sales of stock, saying “We would like to sell our holdings if marketable.” No reply being received to this letter, the defendant company repeated its substance in another letter of April 4, stating that as we have a loan of $22,000 depending upon the value of 172£ shares, we desire the above information.” Several other letters were written to the same purport. On June 29, 1897, the Keystone National Bank closed its oors, on July 26 the Comptroller of the Currency appointed a receiver, and on November 3 ordered an assessment of one un red per cent on the stockholders. Whereupon this action was brought to recover an assessment of $17,250 on the shares registered in the name of Hand. The case was tried before a jury, and the question submitted o em whether before this Keystone National Bank failed, e e endant company—the Fidelity Trust Company of this J was the real owner of these shares of stock, or whether had01^111116^ b.e pledgee of the stock; whether the stock ecome theirs in the sense in which we use in ordinary nle(]C d 6 W0I>d owner,or whether it had been continued to be n. them as collateral security for the payment of the note which has been offered in evidence.” the dT ^d6 i§SUe submitted the jury returned a verdict for takenV^k9"11^*UPOn which judgment was entered, and the case court affl e jlrc^ Court of Appeals upon writ of error. That court affirmed the judgment. 108 Fedf Rep. 475. 246 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. J/r. Asa IF. Waters for plaintiff in error. Mr. Rickard C. Dale for defendant in error. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. There being but little conflict in the testimony as to the actual facts, the question really is whether the court should have submitted the case to the jury, or instructed a verdict for the plaintiff. By Rev. Stat. sec. 5151, “the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares; ” and by sec. 5234, the receiver may, upon order of the proper court, enforce this individual liability. Most of the cases arising under this section have turned upon the question whether defendant was in fact the owner of the shares. In this connection the following propositions maj be considered as settled : 1. That liability may be established by allowing one’s name to appear upon the books of the corporation as owner, thoUg, in fact he be only a pledgee. Pullman v. Tipton, 96 IT. S- 32 . Nor can the real owner exonerate himself from responsi 11 y by making a colorable transfer of the stock, with the un er standing that at his request it shall be retransferred. Bank v. Case, 99 U. S. 628; Bowden v. Johnson, 107 U.S. 2a 5 Stuart v. Hayden, 169 U. S. 1. . . 2. Stockholders of record are liable for unpaid insta men though in fact they may have parted with their stock, or it for others. Hawkins v. Glenn, 131 U. S. 319. . htora 3. A mere pledgee, however, who receives from his e transfer of shares, surrenders the certificate to the an _ takes out new ones in his own name, in which he is esc as “pledgee,” and holds them afterwards in good faith, a 246 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. J/y. Asa TK. Waters for plaintiff in error. Mr. Richard C. Dale for defendant in error. Me. Justice Beown, after making the foregoing statement, delivered the opinion of the court. There being but little conflict in the testimony as to the actual facts, the question really is whether the court should have submitted the case to the jury, or instructed a verdict for the plaintiff. By Rev. Stat. sec. 5151, “ the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares;” and by sec. 5234, the receiver may, upon order of the proper court, enforce this individual liability. Most of the cases arising under this section have turned upon the question whether defendant was in fact the owner of the shares. In this connection the following propositions may e considered as settled: 1. That liability may be established by allowing one s name to appear upon the books of the corporation as owner, in fact he be only a pledgee. Pullman v. Upton, 96 U. • • Nor can the real owner exonerate himself from responsi 11 y by making a colorable transfer of the stock, with the un standing that at his request it shall be retransferred. . Bank v. Case, 99 U. S. 628; Bowden v. Johnson, 107 U.b.iJ» , Stuart v. Hayden, 169 U. S. 1. . 2. Stockholders of record are liable for unpaid ins m j though in fact they may have parted with their stoc , or it for others. Hawkins v. Glenn, 131 IT. S. 319. & 3. A mere pledgee, however, who receives from transfer of shares, surrenders the certificate to the an takes out new ones in his own name, in which he> is esi as “ pledgee,” and holds them afterwards in goo ai , 248 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. colorable. There was also the further fact that the Crescent City Bank was in a failing condition when the transfer to Waldo was made, and there was no reasonable doubt that the defendant Germania Bank knew it, and made the transfer to escape responsibility. In the present case the stock was never transferred to the defendant, and the transfer to Hand took place within two months of the time of the original pledge, when the Keystone Bank was supposed to be perfectly solvent, and remained so for more than a year thereafter when the assessment of twenty-five per cent was made, the bank continuing in business until June 29, 1897, more than six years after the transfer to Hand. In Anderson v. Philadelphia Warehouse Co., Ill U. S. 479, the law as laid down in the prior case was somewhat relaxed, and a tendency manifested to look more closely at the equities. In that case Blumer & Co. borrowed a sum of money from the defendant, and as security for the loan transferred 450 shares of stock of the First National Bank of Allentown standing in the name of one Kern, a partner in the firm of Blumer & Co., on the books of the bank, and had a new certificate issued in the name of one Henry, president of the defendant warehouse company. The fact of the transfer of this stock to its president was brought to the attention of the directors of the warehouse company, who deemed it inadvisable to have the stock stand in the name of the president, and it was therefore transferred to one McCloskey, a porter in the employ of the company, an irresponsible. McCloskey never had possession of the certi cate, and at the request of the warehouse company, gave ® power of attorney for the sale and transfer of the stock, an shortly thereafter died. The stock was subsequently transfert to one Ferris, another employé, also irresponsible. Dividen were regularly paid on this stock to Kern, and the warehouse company never acted as a shareholder. It was held > there was no evidence of fraud or bad faith ; as the ware ouse company was never the owner of the stock, and never hel itee out as such ; never consented to a transfer of stock on the oo s ; never claimed dividends, or acted as a shareholder, or ever pretended to be anything but a mere pledgee, it was not a RANKIN v. FIDELITY TRUST CO. 249 189 U. S. Opinion of the Court. Said the court: “The creditors were put in no worse position by the transfers that were made than they would have been if the stock had remained in the name of Kern or Blumer & Co. who were always the real owners.” It was held that, as the defendant promptly declined to allow itself to stand as a registered shareholder, because it was unwilling to incur the liability such a registry would impose, and asked that the transfer be made to McCloskey, from that time the case stood precisely as it would, if the transfer had been originally made to him instead of to Henry, the president of the company. “ All this was done in good faith, when the bank was in good credit and paying large dividends, and years before its failure or even its embarrassment.” The case differs from this only in the fact that here there was some evidence (enough to go to the jury) that defendant had held itself out as the owner of the shares. In Pauly v. State Loan c& Trust Co., 165 U. S. 606, the stock which was delivered to the defendant as collateral security was reissued, and new certificates issued to the defendant as “ pledgee.” It was held that, as the stock book gave information that the defendant held the stock as pledgee only, it was not liable to an assessment. See also Robinson v. South. Nat. Bank, 180 U. S. 295; Nat. Park Bank v. Harmon, 79 Fed. Rep. 891; & C., 172 U. S. 644. There is no doubt whatever that the defendant originally took blank transfers of the certificates of stock in question as security for its loan to the Delamaters ; that at that time the stock was worth its face value, $23,000 ; had paid dividends or twenty-seven years prior thereto, and was in good credit. °c arge the defendant with liability as a shareholder it must e made to appear that it had either become the owner of the s ares in fact, or had held itself out to be the owner, and thereby es opped itself to deny its liability as such. ., ,e C^an^e in ^8 attitude toward the stock took place bv th0 “ a^er the original pledge, and was caused da ai^Ure the Delamaters, which occurred within twenty ■ JS,a i°an was made. The change consisted in send-Q ,.ac > January 10, 1891, the original certificates, and re-s lng t e bank to transfer the shares to Hand, which was 250 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. done. Defendant evidently did not then intend to become the owner of the stock, as immediately after receiving notice of the failure of the Delamaters the vice president of the company addressed a note to them, or their assignees, calling attention to the note and the pledge of the stock, and saying that if they were prepared to anticipate the payment of the note and have the collateral returned, they would be glad to so arrange it; and in a further letter of May 5, 1891, to the Delamaters, he notified them that the note was secured by the Keystone Bank stock, and “if we cannot secure payment for the note and interest, I have to notify you that we shall proceed to sell the collateral at auction.” It also appears that on July 7, 1892, the vice president of the company addressed a letter to the auditor of the Delamater estate, notifying him of their claim against that estate upon the note for $15,000, and stating that the company held the shares of the Keystone Bank as collateral for the loan. Thereafter, and on March 30,1893, the company received a dividend of $795.60, to which it was undoubtedly entitled as pledgee. Even so late as 1894 the vice president of the defendant company addressed a note to the Keystone Bank, requesting in formation regarding their business; whether there had been any sales of the stock and at what price, and saying that as we have a loan of $22,000 depending upon the value of 1 a shares, we desire the above information.” It is true that t e defendant in 1892 paid an assessment of $5750 upon this stoc , but the amount was charged to the Delamaters as an additiona advance, and was evidently paid to save its interest in the s c from forfeiture. Rev. Stat. sec. 5205 as amended in 18 , Stat. 64. It is not easy to see how the defendant cou av done otherwise than it did without prejudice to its own no , as well as to the rights of the assignees of the pledgors. It is also evident that the assignees of the Delamaters rea the interest of the defendant in the stock as a mere p e > since in their account filed in the Court of Common e Crawford County, July 13,1896, they charge themse account as.follows : “-Equities in stocks and bonds, p le S of collateral on loan unadjusted, as follows : (a) $23,0 , s RANKIN v. FIDELITY TRUST CO. 251 189 U. S. Opinion of the Court. the Keystone National Bank of Erie, pledged for a loan of $15,000, appraised at $8000.” Proof was offered that in this account the assignees had made another entry, “ said stock having been converted by the holder of the note, and said stock having been assessed to the amount of 25 per cent of its face value, did not sell for enough to pay the debt for which it was pledged.” This memorandum was excluded, and properly so, by the court below, inasmuch as it was a mere assertion of fact made by these assignees without the knowledge of the defendant. The company could not be bound by a statement thus made by these assignees without its knowledge or acquiescence. Again, it was obviously untrue, as the stock had never been sold. Evidently all that was intended by the word “ converted” was that the stock was not worth enough “ to pay the debt for which it was pledged.” There can be no doubt that defendant would have been willing at any time to surrender the stock upon payment of the debt, and that it retained it simply because it was forced to do so. It is also true that a number of letters were written during the time the defendant held possession of its certificates, in which it made inquiries as to the value of the stock, the number of sales made, and spoke of itself as holding or owning the stock which it desired to sell, and that Hand once or twice voted the shares by proxy; but the bank clearly could not ave been misled, as the nature of such ownership was shown in the letter of April 4, 1894, in which they spoke of a loan of $22,000 depending upon the value of 1721 shares, and repeatedly thereafter, and as late as April, 1897, said they were anxious to sell this stock “ to close an account ” for which it was collateral. If such representations had been made either by a formal entry upon the books of the bank or to the public, or to any “ could have been prejudiced by them, defendant might th h d be estopped, but as they were made to officers of d f T* ’ w^° un(^erstood perfectly the capacity in which the e en ant retained the stock, it was properly held to be a question for the jury. Plaintiff also offered to show in the stock ledger of the 252 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. bank over the name of W. W. Hand, in an account opened with him at the request of the defendant, a pencil memorandum at the top of the page in these words: “ Fidelity Trust and Safe Deposit Company, Philadelphia.” As it does not appear who made this memorandum, when or for what purpose it was made, or what it was intended to indicate, it was properly excluded from the consideration of the jury. It was probably explanatory of the fact that correspondence with regard to Hand’s account was kept up with the defendant company. It had no tendency, however, to show anything inconsistent with defendant’s position as pledgee of the stock. As the stock stood in Hand’s name, the entry had no tendency to prove ownership in another. Carey v. Williams, 79 Fed. Rep. 906; Sigua Iron Co. v. Greene, 104 Fed. Rep. 854. The fact that the certificates were put in the name of Hand, though calculated upon its face to awaken suspicion, wrought no material change in the situation. If defendant were in fact the owner of the shares, it could not avoid liability by listing them in the name of another. National Bank v. Case, 99 U. S. 628. If it were the pledgee, it had the option of listing these shares in its own name as pledgee, Pauly v. State Loan Trust Co., 165 IT. S. 606 ; or in the name of another and irresponsible party, even though this were done for the purpose of avoiding liability, Anderson v. Philadelphia Warehouse Co., Ill U. S. 479. The creditors were not injured, since if the exact truth had appeared upon the face of the certificates, by registering the shares as pledgee, they would have had no recourse against the defendant. Upon the other hand, if defendant had really owned the shares, it would have been a fraud to list them in the name of Hand. Perhaps it wo have been less open to criticism to have listed them in its own name as pledgee, but as its failure to do so under the theory o the defendant that it was in fact the pledgee, misled no one, i should not be held liable for what was done in good faith an with no intent to defraud. The case then really turned upon the actual ownership o t e shares, and this question was properly left to the jury as on fact. Although the construction of written instruments is one RANKIN v. FIDELITY TRUST CO. 253 189 U. S. Opinion of the Court. for the court, where the case turns upon the proper conclusions to be drawn from a series of letters, particularly of a commercial character, taken in connection with other facts and circumstances, it is one which is properly referred to a jury. Brown v. McGran, 14 Pet. 479. In that case it was said by Mr. Justice Story that “ there certainly are cases, in which, from the different senses of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury, for the purpose of carrying into effect the real intention of the parties. This is especially applicable to cases of commercial correspondence, where the real objects, and intentions, and agreements of the parties, are often to be arrived at only by allusions to circumstances which are but imperfectly developed.” This case is specially applicable to the one under consideration, inasmuch as plaintiff relies chiefly upon the fact that defendant, in its correspondence with the bank, spoke of itself as owning or holding the shares standing in the name of Hand. Under the circumstances, it is entirely possible that the word owner ” may have been used in its ordinary sense, or as representing a pledgee upon whom the ownership of the shares had been cast by the failure of the pledgor, and the depreciation of the value of the shares to an amount insufficient to pay the note. It can hardly be possible that the statute was intended to impose a liability upon a pledgee, who had taken the shares as collateral security and, through the failure of the p edgors, had been forced against its will into the position of ownership. Such a result might operate to destroy altogether e possibility of raising money upon the deposit of national ank shares as collateral. See also Fagin v. Connoly, 25 Missouri, 94; Prather v. Ross, 17 Indiana, 495 ; Roberts v. Bonaparte, 73 Maryland, 191; Macdonald n. Morrill, 154 Massachusetts, 270. th CaSe C0U^ onty have been withdrawn from the jury upon e tieory that, taking all the testimony together, there could th y\°ne reasonable interpretation put upon the conduct of e e endant with respect to these certificates. Such, in our pinion, is not the case. The fact undoubtedly was that the 254 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. defendant did not intend to impose upon itself the statutory liability of a shareholder, and considering that it had not only lost its original debt of $15,000 (less a small dividend) by the failure of the Delamaters, as well as the additional assessment of $5750 paid to save the shares from forfeiture, that there was no evidence of fraud or double dealing in its conduct, and that its liability was purely a technical one, it was not unnatural for the jury to require that such liability should be clearly established, before imposing upon it an additional burden of $17,250, for which it had received no possible consideration. Some stress is laid by the plaintiff upon the fact that neither the Delamaters nor their assignees ever gave their consent to the transfer of the stock to Hand, but as the power of attorney originally given upon the deposit of the stock expressly authorized such transfer, and the rights of the defendant could only be protected in that way, there is no force in the objection, particularly in view of the fact that neither the Delamaters nor their assignees complained of such transfer. Being an act which it was authorized to take as pledgee, it cannot be made reponsi-ble as owner therefor. There was no error in the action of the Court of Appeals, and its judgment is therefore Affirmed. Mr. Justice Harlan dissented. GLIDDEN v. HARRINGTON. 255 189 U. S. Statement of the Case. GLIDDEN v. HARRINGTON. ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS. No. 199. Argued March 12,1903.—Decided April 6,1903. Although this court has never had occasion to determine exactly what the Fourteenth Amendment required in the assessment of ordinary annual taxes upon personal property, such proceedings should be construed with the utmost liberality and while notice may be required at some stage of the proceedings such notice need not be personal, but may be given by publication or by posting notices in public places. Such notices must be suitable and it is only where the proceedings are arbitrary, oppressive or unjust that they are declared to be not due process of law. The statute of Massachusetts which requires that all personal estate within or without the Commonwealth shall be assessed to the owner; that personal property held in trust, the income of which is payable to another person, shall be assessed to the trustee in the city or town in which such other person resides, if within the Commonwealth; and if he resides out of the Commonwealth, shall be assessed in the place where the trustee resides; that the assessors before making the assessment shall give notice by posting in some public place or places; that in case the taxpayer shall fail to make returns they shall ascertain as nearly as possible the particulars of the estate and estimated value, which shall be conclusive upon the owner unless he can show a reasonable excuse for omitting to make the return; also making provision for an application to the assessors for an abatement of taxes and for an appeal to the county commissioners, does not deprive taxpayers of their property without due process of law. person residing in Massachusetts and holding property in trust has the same opportunity to show that he held no property in trust as he has in regard to his individual property, and it is as much his duty to disclose it as though it were individual property. This was an action brought in the Superior Court of Middle-sex County by Harrington, collector of taxes for the city of w ell, to recover a tax upon personal property, assessed upon the defendant as trustee, for the year 1889. he case resulted in a verdict for the plaintiff, which was carried by exceptions to the Supreme Judicial Court, where the exceptions were ordered overruled, 179 Massachusetts, 486, and e case rem&nded to the Superior Court, in which judgment was entered. ’ 256 OCTOBER TERM, 1902. Opinion of the Court. 189 U. 8. J/r. Harvey N. Shepard for plaintiff in error. Mr. George F. Richardson for defendant in error. J/r. Francis TF. Qua and Mr. William A. Hogan were with him on the brief. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. This case involves the question whether the proceedings taken to enforce this tax deprived the defendant Glidden of his property without due process of law, within the meaning of the Fourteenth Amendment. The facts of the case are substantially that a resolution for the assessment of taxes for the year 1889 was passed by the municipal council of Lowell, and approved by the mayor on March 22 of that year; and it "was ordered that a copy of the resolution be furnished to the assessors on or before April 1. Before proceeding to make the assessment, the assessors, in the latter part of April, gave proper notice to the inhabitants of the city, by posting in public places in the several wards of said city, notifications that they were about to assess taxes, and requiring the inhabitants to bring into the assessor’s office on or before June 15 of that year true lists of their polls and person estates not exempt from taxation. Two members of the board of assessors were appoin a committee “ to inquire into telephone matters for taxation. The committee “ advised that a suitable person be sent to bany to look up matters in that direction,” which comnn tee was authorized by the board to use its discretion in the mat r The expert employed by the committee to look up ^el^n,C<^ porations reported stock of the Erie Telegraph and e ep o Company held by individuals in Lowell, and mentione se^ trustees, one of whom was the defendant. On July the board “ voted to tax (assess) the directors of the rie » graph and Telephone Company as trustees There were $1,600,000 held by ten trustees, of v 1C fendant was one. No list of personal estate held in rus GLIDDEN v. HARRINGTON. 25T 189 U. S. Opinion of the Court. been or was submitted by defendant. The tax bill, as trustee, was delivered personally to the defendant about September first. About two months after such assessment, September 10, the warrant for the collection of the taxes was put in the hands of the collector. On February 24, 1890, defendant filed a statement to the effect that, although he was informed that certain shares of stock stood in his name as trustee, he was not the owner of the shares and not taxable therefor, and thereupon made application as trustee for an abatement, upon which application a number of hearings were had. But before the proceedings were determined this action was brought by a succeeding collector. Upon the trial in the Superior Court it appeared that the defendant was assessed as trustee upon certain shares of three telephone companies, which the assessors understood were held by him in trust for the Erie Telegraph and Telephone Company. The basis of valuation adopted by the assessors was the market price of the shares of this latter company. Defendant offered evidence tending to show that at the time of the assessment he owned no personal property whatever as trustee; that said shares were owned by the Erie Telegraph and Telephone Company and were in its possession and control, although they stood in his name ; and further evidence tending to show that said property was not taxable to him, and was not within t e jurisdiction of the assessors or of the State. This evidence was excluded by the court, which ruled that the only questions or the jury were “ whether the assessors ascertained as nearly as possible the particulars of the estate held by the defendant as trustee, for the purpose of making this assessment, and w et er, having obtained those particulars, they estimated sue property at its just value according to their best judgment, information and belief.” The court held the validity of the tax to depend upon the ues ion whether the assessors had jurisdiction to make the tantSSlfeV found that the defendant was an inhabi- ° 0WeU and had taxable personal property there, it ought that he was within the jurisdiction of the as-VOL. CLXXXIX—IT 258 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. sessors, and that it made no difference whether such property was all held by him individually, or partly as individual and partly as trustee, inasmuch as it was all a personal tax. The court, having held that the proceedings conformed to the state statute, and that defendant’s only remedy was the statutory proceeding for abatement, it only remains for us to consider whether these proceedings constitute due process of law within the Fourteenth Amendment. This was not a special assessment, but the ordinary annual tax upon personal property. The act requires that all personal estate, within or without the Commonwealth, shall be assessed to the owner ; that personal property held in trust, the income of which is payable to another person, shall be assessed to the trustee in the city or town in which such other person resides, if within the Commonwealth; and if he resides out of the Commonwealth shall be assessed in the place where the trustee resides. Before making the assessment the assessors shall give notice by posting in some public place or places; that in case the taxpayer shall fail to make return, they shall ascertain, as nearly as possible, the particulars of the estate and estimate its just value, which shall be conclusive upon the owner, unless he can show a reasonable excuse for omitting to ma e his return. Provision is also made for an application to t e assessors for an abatement of taxes, and for an appeal to t e county commissioners in case of a refusal of the assessors o abate the tax. These proceedings are amply sufficient to constitute ue process of law. Although, with respect to this class of taxes, we ave never had occasion to determine exactly what the Fourteen Amendment required, we have held that the proceedings s °u be construed with the utmost liberality, and while a notice n^y be required at some stage of the proceedings such notice n not be personal, but may be given by publication or y Pos ° notices in public places. It can only be said that sue no^ shall be given as are suitable in a given case, and it is where the proceedings are arbitrary, oppressive or v they are declared to be not due process of law. New Orleans, 96 U. S. 97; Sagar v. Reclamation DvW, GLIDDEN v. HARRINGTON. Opinion of the Court. 259 189 ü. S. Pittsburgh dec. v. Georgia, 166 Simon N. Craft, U. S. 701; Paulsen v. Portland, 149. U. S. 30 ; Railway Co. v. Backus, 154 U. S. 421; Allen U. S. 138; King v. Portland, 184 U. S. 61; 182 U. S. 427; Turpin v. Lemon, 187 U. S. 51. In the Kentucky Bailroad Taw cases, 115 U. S. 321, it was held that a state statute for the assessment of taxes, which gave notice of the proposed assessment to the owner by requiring him at a time named to present a statement of his property, with an estimate of its value, which fixed time and place for public sessions of other officers, at which this statement and estimate were to be considered, where the party interested had a right to be present and to be heard, and which gave him opportunity to judicially contest the validity of the proceedings, was due process of law within the Fourteenth Amendment. In Lent v. Tillson, 140 IT. S. 316, it was held that in a case of a special assessment for widening streets, publication in a newspaper was sufficient notice to property owners interested. The complaint in this case is based upon the proposition thus stated by plaintiff : That it is not due process of law for a State “ to compel a man, who holds no property in trust and makes no return to the assessors, to pay a tax assessed against him as such trustee, without opportunity to show that he held no property in trust.” This proposition, however, assumes that no opportunity was given the defendant to show that he held no property in trust, when the fact was that public notice was given the inhabitants to produce before the assessors a list of their personal estates, among which there was specified by the statute personal property held in trust. Defendant did not choose to comply with that notice by submitting a list of the property held by him in trust, although he subsequently made application for abatement, upon which application a number of earings were had. Upon his failure to make his returns the assessors did the only thing they could do: ascertain as nearly as possible the particulars of the personal estate and estimate i at what they believed its just value. If defendant held per-Soni^ Property as trustee it was as much his duty to disclose it th1 k had been individual property, and his contention now, at e had no reason to anticipate that he would be taxed for 260 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. property held in trust, because he held none, is met by the fact that he applied for an abatement of this tax, and that, after several hearings upon the case, it was refused him. Kentucky Railroad Tax Cases, 115 U. S. 321, 335. There was nothing in the proceedings of which the plaintiff had any right to complain as a violation of the Fourteenth Amendment, and the judgment of the Superior Court is therefore Affirmed. Me. Justice White, not having heard the argument, took no part in the decision of this case. WISER v. LAWLER. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA. No. 174. Argued February 25, 26,1903.—Decided April 27,1903. Promoters of mining enterprises, in the preparation of prospectuses, are bound to consider the effect that would be produced upon an oidinary mind by the statements contained in them, and in estimating the probability of persons being misled by them, the court may take into consi eration not only the facts stated, but the facts suppressed. Vendors of mining properties are not responsible for false statements ma e in prospectuses issued by a mining company to whom the piopei les been sold, unless they knew or connived in such statements, oi werei ac tive in putting them in circulation. While they may have known prospectuses were being issued, they were under no obligation ty*™ them, or contradict their statements or promises, or interfeie wi circulation or distribution. , ishtc If their title be of record, they are not bound to give notice o t en i in the property to the purchasers of stock, or to refuse the mone upon their contract of sale when it is tendered them. tunity To constitute an estoppel by silence there must not only be an °ty^.aDce but an obligation to speak, and the purchase must have been in upon the conduct of the party sought to be estopped. eCord, is A person holding a deed of property which he has placed upon r not ordinarily bound to disclose his title to persons contemp chasing, or making improvements upon the land, unless deceptive, or accompanied by an intention to defrau . This was a complaint in the nature of a bill in equity fi le the District Court of Yavapai County, Arizona, by appe WISER v. LAWLER. 261 189 U. S. Statement of the Case. for themselves and all others interested, against John Lawler and Edward W. Wells, principal defendants, and the Seven Stars Gold Mining Company, The Industrial Mining and Guaranty Company and John Griffin, receiver of such companies, to adjudge Lawler and Wells to be estopped from disputing the title of the Seven Stars Company to certain mining properties, and to decree such properties to belong to that company, and for an account of the proceeds of all ore taken from the mines and received by defendants Lawler and Wells, or, in the alternative, for a money decree against them for the aggregate amount paid by plaintiffs and others for stock in the company, upon the representations contained in certain prospectuses and maps, by which the plaintiffs were induced to purchase stock in such company, and for a confirmation of the title to the property in such defendants. The cause came on for hearing upon the pleadings, and at first resulted in an interlocutory decree in favor of the plaintiffs, with an order for an accounting by defendants. The case was then referred to a master to report the number of shares in the Seven Stars Company subscribed and paid for, and to ascertain the amount paid to defendants Lawler and Wells on account of the purchase price of the property. This was finally fixed at the sum of $180,139.82, which was held to be a lien, and the property was ordered sold in satisfaction thereof. A new trial was subsequently granted, upon the hearing of which, upon pleadings and evidence, it was held that plaintiffs were entitled to no relief, and the complaint was dismissed, and an appeal taken to the Supreme Court of Arizona, which affirmed the decree of dismissal. 62 Pac. Rep. 695. The Supreme Court made a finding of facts in sixty-four paragraphs, which is quite too long to be reproduced here, but which may be summarized as follows: n May, 1892, the defendants Lawler and Wells were the “ 'inr title to a collection of mines known as the 1 side Group,” the muniments of such title being of record n e county recorder’s office of Yavapai County. awler and Wells offered these mines for sale at $450,000 ’ and on May 12 one Warner visited the mines and con 262 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. tracted for their purchase for $450,000, paying $20,000 in cash, the remainder to be paid in installments in accordance with the terms of an escrow agreement entered into between Lawler and Wells and one Cowland. This agreement provided, among other things, that a deed conveying the mines to Cowland be held in escrow by the Bank of Arizona and be delivered upon paying the full sum of $450,000 ; and that upon the failure of the payments the deed should be redelivered to Lawler and Wellsand all payments be forfeited. Cowland agreed that all moneys paid by him should belong to Lawler and Wells and should be retained by them as liquidated damages accruing from the failure to pay for the property, and Lawler and Wells be released from any obligation to convey the property. It was further agreed that Cowland might take possession of the property, develop and operate it, the proceeds to be paid to the vendors and credited upon the purchase price; that Lawler and Wells should, nevertheless, remain in legal possession of the property until full payment, but should not work it or interfere with its operation by Cowland. It was further agreed that, should Cowland fail to make any payments, all improvements on the property and ore taken therefrom should be t e property of Lawler and W ells. A deed of the property w as¡executed to Cowland and placed in escrow as above stated. ar ner was the real party in interest and Cowland only his agent. On June 14, Warner and Cowland, with some others, incorporated the Industrial Mining and Guaranty Company for e purpose of handling mines and buying and selling stoc , which company Cowland delivered a written assignment o his interest in the escrow agreement, as well as a dee o mining properties with a covenant of warranty against inc brances. The new company assumed all the co\enan Cowland in the escrow agreement, to make the pay therein stipulated, and to procure the escrow deed t eni hands of the Bank of Arizona. Possession of t e pro was delivered to the new company with full knowledge part of the terms of the escrow agreement. The comp mained in possession until October 1,1892. On August 15, 1892, Warner and several others inco p WISER v. LAWLER. 263 189 U.S. Opinion of the Court. the Seven Stars Gold Mining Company under the laws of New Jersey, of which certain persons, including one of the plaintiffs, were elected directors. About the same time the Guaranty Company offered to sell and convey all its interests in certain mining properties, including a part of those described in the escrow agreement, to the Seven Stars Company, upon receiving 12,800,000 in cash of stock of such company. On October 1 the Guaranty Company placed the Seven Stars Company in possession of the Hillside Group, with full knowledge on the part of the latter of the terms of the escrow agreement. The Guaranty Company, as the agent of the Seven Stars Company, issued in September, 1892, a prospectus, known as the American prospectus, to promote the sale of the stock of the Seven Stars Company, 300,000 of which prospectuses, accompanied by a map and an application for subscription to stock, were circulated throughout the United States. In October, 1892, the Guaranty Company directed the issuing of an English prospectus, which was never circulated, but another, issued without the authority of the Guaranty Company or the Seven Stars Company, was prepared, supervised and circulated by Cowland. The descriptive matter in this prospectus was obtained from data furnished by the officers of the Guaranty Company. The circulation of this prospectus amounted to 80,000 copies, and accompanying each copy was a map and application for subscription to stock; but neither Lawler nor Wells had any knowledge or information that this prospectus had been or was being circulated in Eng-and, or had any knowledge of its contents until some time in ctober, 1893. The further material facts are set forth in the opinion. Afr. JT lants. Gallagher and J/r. G. W. Kretzinger for appel- ATr. William G. Scarring Mr. II. C. McDougal for appel-ees. Mr. E. L. Scarritt was on the brief. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. The principal defendants to this suit are Lawler and Wells, 264 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. (hereinafter termed “ the defendants”) and the case turns upon their complicity in and responsibility for the contents of the prospectuses, which are full of exaggerated and delusive statements, and were undoubtedly a gross fraud upon persons who took stock upon the faith of their exuberant promises. Indeed, they were of such a character as to create surprise that intelligent investors should have believed their statements to be true. The representation upon which the greatest reliance is placed is that contained in the American prospectus; that “ the titles are unquestionable, to the Seven Stars, Hillside, Happy Jack and other mines, being held under United States patents;” and in the English prospectus, that “ the mines owned by the company are situated in the Eureka mining district, Yavapai County, Arizona,” and that “ the title is indefeasible, being United States patents to five claims, together with several locations as easements.” Attached to these prospectuses was a map entitled “Mapof the group of mines belonging to the Seven Stars Gold Mining Company.” It is true that there is neither in the prospectuses nor in the map a distinct assertion that the legal title to the properties mentioned was vested in the Seven Stars Company; but we think that no one can read them without inferring and believing that the Seven Stars was the owner of these properties, and that the net proceeds of their operation would be distributed in dividends to stockholders. As they were circulated as an inducement to take stock in the enterprises, we are boun to interpret them by the effect they would produce upon an ordinary mind. Andrews v. Mockford, (1896) 1 Q« B. D- ■ They were, however, even more damaging in their omissions than in their statements. No mention was made of the ac that the title to these properties stood in the names of Law er and Wells ; no allusion to the Cowland agreement, with its pro-visions for forfeiture, nor to the fact that the only interest o the company was an equitable right to the properties after e sum of $450,000 had been realized from the profits and pai defendants. In estimating the probability of subscribers eing misled by these prospectuses we may take into consideration no only the facts stated, but the facts suppressed. ffw ru WISER v. LAWLER. 265 189 U. S. Opinion of the Court. wick &c. Co. v. Muggerldge, 1 Drewry & Smale, 363. They are entitled to know the cons as well as the pros. Gluckstein v. Barnes, (1900) App. Cas. 240; Hubbard n. Weare, 79 Iowa, 678; Hayward v. Leeson, 176 Massachusetts, 310; In re Leeds and Hanley Theatres, (1902) 2 Ch. Div. 809. It does not appear, however, that these defendants were promoters or interested in the organization of the Guaranty Company, or the Seven Stars Company, or in the sale of the capital stock of such companies, although they knew that Warner’s intention was to incorporate a company, and, to use the language of one of the defendants, “ work it for all there was in it.” As they were not concerned in the methods used to procure subscriptions to stock, or in the statements made in the prospectuses, it is difficult to see how they can be held responsible, unless they are made so by the fact that they knew and connived in the misstatements as to the title of the com pany. But while they might have known that the prospectuses were being issued, they were under no obligation to read them or contradict their exaggerated statements and promises. In their agreement with Cowland they had stipulated that he, or his assignee, should explore, work and operate the property, and they could not have failed to know that this would be done through a company organized for that purpose. Such company would be anthorized to issue prospectuses and obtain subscriptions to stock as best it could, and clearly defendants were not bound to supervise its methods in doing so, or render themselves responsible for statements made by the company, provided they did not indorse them. There were no relations between them and the purchasers of the capital stock, and no duty on their part to interfere with the circulation and distribution of the prospectuses and maps, or to inform the subscribers person-a ly that they were the owners of the legal title to the prop-er y. They had the right to rely, so far as respected these companies and their stockholders, upon the fact that their title was of record, and was notice of their rights to every one who contemplated taking stock in the company. e testimony bearing upon the complicity of Lawler and e 8 the preparation of these prospectuses and maps is 266 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. such as amounts rather to a suspicion that they may have known and approved of their contents, than to positive proof that they received their indorsement. Of course, if it were shown that they were put forth by them personally with knowledge upon their part of their contents, and of the falsity of their statements, and that they were issued as a basis of obtaining subscriptions to stock, they would be justly held liable as participants in the fraud ; but the mere fact that they turned over the organization of the company to other parties who would pursue the usual course of issuing prospectuses for the purpose of raising subscriptions, would not, of itself, charge them with the duty of examining and verifying their statements. The facts principally relied upon are that the defendants caused to be delivered to Mr. Rickard, an agent of Cowland, a report previously made upon the mines, known as the Blauvelt report, together with a map of the underground workings of the mines, known as the Blauvelt map, as well as copies of the smelter and milling returns of ores shipped from the mines, known as the “ smelters’ returns.” It is not found, however, that these documents were false in any particular, except the map, which was prepared by one Brodie, without the knowledge of thé defendants, but was seen by defendant Lawler hanging in the office of the companies in New York, and vas entitled “ Plat of the Hillside and adjoining claims,” although it appears that afterwards, without the knowledge of Lawler, these entitling words were changed, before the maps were distributed, to the words “ Map of group of mines belonging to the Seven Stars Gold Mining Company.” It thus appears that when Lawler saw this map it contained no words indicative o ownership in the Seven Stars Company. It also appeared ta in August of the same year defendant Wells visited the o ce of the Guaranty Company in New York, and while there an interview with Warner, president of both companies, u the evidence does not show that anything was said to e about the plans of the companies, or the issue and circulation of a prospectus ; although Lawler became aware of the fact the prospectus was being prepared for circulation, and or WISER v. LAWLER. 267 189 U. S. Opinion of the Court. purpose of promoting the sale of the stock of the company, and that the Blauvelt report and map were being used in connection with it. In October, 1892, Warner represented to the defendants that he was unable to place the securities he held, in time to meet the payment of that portion of the price falling due November 12, and relying upon his representations and requests defendants agreed to an extension of the time; but on May 8, 1893, the whole scheme so far as Warner was connected with it, collapsed, by his executing a general assignment of his property for the benefit of his creditors. Defendants, learning of this, made a further agreement with Cowland, extending the time for payment under his agreement, receiving as part of the consideration $50,000 par value of the guaranteed capital stock of the Seven Stars Company, and the appointment of Lawler as manager of the mines. In May, 1893, Lawler received notice in writing that remittances on account of the Cowland contract were being made from money derived from the sale of stock of the Seven Stars Company, and in August, 1893, the Chancery Court of New Jersey, in which State the company was incorporated, appointed defendant Griffin receiver of both companies. In September, defendants, as owners of the legal title, and exercising their rights under the original escrow agreement, entered into possession of the group of mines and remained in exclusive possession until September, 1897, when a receiver was appointed by an Arizona court. The most important item of testimony, and one which lies at the basis of this suit, is the fact that the defendants received rom the proceeds of the mines, during their operation by the Seven Stars Company, suras aggregating $47,812.25, and also received from Warner and others, on account of the purchase price 0 the property, $112,339.96. This, however, they had a perfect rig t to do under their contract, unless they were distinctly apprised of the fact that it was fraudulently procured. But the prospectus, map and application were prepared under the supervision of Warner, and the documents framed in accordance with his views. The evidence tends to show that while defendants had nowledge of the preparation and circulation of the prospectus 268 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. and maps, knowledge of the statements and representations contained in them is not brought home to them, nor were they bound to inform themselves as to their contents. There are further findings that defendants, in October, 1892, became aware that the American prospectus was being distributed by the G-uaranty Company, and that they did not at any time protest against its preparation or circulation, or in any way give notice of their rights in the mines to any of the purchasers of the stock of the Seven Stars Company, except as such notice might be imputed to them through the record title in defendants. But it is further found that they did not at the time the subscriptions to the stock were being made, make any representations or communications to any subscriber to said stock ; nor did they have any notice or knowledge that any moneys received by them on account of the purchase price formed a part of the money raised from subscriptions to stock and paid to the Guaranty Company on account of the purchase price—at least not until May 20, 1893, when nearly all the payments had been made. Neither were they interested as promoters or otherwise in the organization of either of the corporations, or in the issue or circulation of the prospectuses, or the sale of the capital stock. Were they bound to refuse the money when it was tendered them ? Even if defendants had knowledge or notice that payments received by them on account of the purchase price were made from moneys raised from subscriptions to stock, there was no impropriety in receiving their money from the proceeds of the sales of the stock, although the contract specified only that they should be entitled to the proceeds of the ore mined. As they had agreed to sell their interests at $450,000, an Cowland had agreed to pay that amount, it may be assume that this was the real value of the properties at that time. This amount defendants had a right to receive before t ey surrendered the deed of the properties, but how it was to e raised wTas no concern of theirs. Granting the provision in t e contract for the forfeiture of all moneys paid, in case the sa e finally fell through, to have been a harsh one, (and in fac was much less harsh than it appeared to be,) it was fully un WISER v. LAWLER. 269 189 U. S. Opinion of the Court. derstood and agreed upon by both parties; and while a bill in equity might not have lain to enforce it, it does not follow that defendants will be compelled to return the money unless they actively participated in the representations under which it was raised. The case would have been stronger if the Cowland agreement had provided distinctly that a mining company should be formed and defendants paid from the proceeds of sales of its stock, but the agreement made no provision how the money should be raised or from what fund it should be paid, except that the proceeds of the operation of the mines and the ores should be at once paid to the defendants and be credited on the agreement. It was not provided, however, that this should be the only source from which the money should be raised. As matter of fact, the Guaranty Company was engaged in promoting sundry mining and industrial enterprises, including the business of the Seven Stars Company ; and during the time the payments were being made, it received and disbursed the sum of $824,142.13, which was deposited in its own name in a common fund in the Continental National Bank, and chequed out by the Guaranty Company in its various business enterprises as required, and, amongst others, to the defendants on account of the Cowland agreement. These cheques, which were generally payable to Cowland, were collected by the payee, the money transmitted to the Bank of Arizona, and p aced to the credit of defendants on account of the purchase price of the property. Between June 15, 1892, and Septem-er 18, 1893, the Guaranty Company paid out for operating expenses, purchase of machinery, purchase price of the Hillside group of mines, dividends and all other expenses, an aggregate sum of $380,295.81—over $100,000 more than the amount of stock^ rece^ve(^ from the sale of the Seven Stars guaranteed d Jhe.Case’ comes to this: Whether the mere fact that fu 60 ^new ^at a prospectus was to be issued; that they rnis e the Blauvelt report, (not shown to be false,) to which that a?Pended a map indicating (though not to their knowledge) e mines belonged to the Seven Stars Company, and that 270 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. they might have informed themselves, if they had chosen to do so, of the contents of the prospectus, and did actually receive a large amount of money without knowing the source from which it came, render them liable as participants in the fraud perpetrated by the circulation of the prospectus ? Putting the case in the most favorable light for the plaintiffs, it was only a case of estoppel by silence. Indeed, it was not even an ordinary case of estoppel by silence, but an estoppel by silence concerning facts of which defendants may have had no actual knowledge. To constitute an estoppel by silence there must be something more than an opportunity to speak. There must be an obligation. This principle applies with peculiar force where the persons to whom notice should be given are unknown. So, too, to constitute an estoppel, either by express representation or by silence, there must not only be a duty to speak, but the purchase must have been made in reliance upon the conduct of the party sought to be estopped ; and the express finding of the court in this case is “ that the subscribers to the capital stock of the Seven Stars Company, in making their several subscriptions therefor and payments thereon, did so without any knowledge of, and without relying on, anything said or done, or omitted to be said or done, in the premises by the said Lawler and Wells, or either of them.” Granting that if these subscribers had known all the defendants knew regarding the title to this property, they would not have subscribed to the stock of the company, it does not follow that defendants W’ore bound to take active steps to inform the public of that which already appeared upon the record. This case does not belong to that class of which Gregg v-Von Phul, 1 Wall. 274, is an example, wherein it was said t a “ if one has a claim against an estate and does not disclose it, but stands by and suffers the estate to be sold and improve , with knowledge that the title has been mistaken, he will no » allowed afterwards to assert his claim against the pure as®r' Such cases are believed to be confined to those where silence is inconsistent with the position subsequently assmn & him, as where he suffers land to be improved while ho ino a unrecorded deed of it. In this case, however, defendants po WISER v. LAWLER. 271 189 U. S. Opinion of the Court. tion was perfectly consistent with their title of record and with the Cowland agreement, which distinctly provided that Cowland or his assignees should enter into possession, develop and work the mines upon their own account, though paying the proceeds to them. But, conceding defendants to have been, apprised of the contents of the prospectus, it would certainly bean exceptional case if a person holding a deed of property which he has placed upon record would be bound to disclose his title to a person contemplating purchasing or making improvements upon the land, or would be estopped from making his claim thereto by mere silence, since he has a right to rely upon the constructive notice given by the record; although the rule would be otherwise in case of positive misrepresentations upon his part. Brant v. Virginia Coal <& Iron Co., 93 U. S. 326,337; Knouffv. Thomp-son, 16 Pa. St. 357 ; Brinckerhoff v. Lansing, 4 Johns. Ch. 65 ; Rice v. Dewey, 54 Barb. 455 ; Kingman Graham, 51 Wisconsin, 232; Sulphine v. Dunba/r, 55 Mississippi, 255; Porter v. Wheeler, 105 Alabama, 451. The authorities also recognize a distinction between mere silence and a deceptive silence accompanied by an intention to defraud, which amounts to a positive beguilement. Sumner v. Seaton, 47 N. J. Eq. 103 ; Hill v. Epley, 31 Pa. St. 331; Markham v. O' Connor, 52 Georgia, 183. For instance, if a mortgagee stood by while a mortgagor wTas selling a piece of property to a person whom the mortgagee knew was purchasing the property upon the supposition that it was unencumbered, he might be estopped by his silence, even though his mortgage were of record. But upon the other hand, if he were merely informed that the mortgagor was endeavor-lng to sell the property as unencumbered, he would clearly be under no obligation to look up the purchaser, or to inform the pu lie generally of the existence of the mortgage. In such case he might safely rely upon the record. No duty to speak arises from the mere fact that a man is aware that another may take an action prejudicial to himself if the real facts are Dot iselosed. Sullivan v. Davis, 29 Kansas, 28. As stated n\ 011 Estoppel, 5th ed., page 596 : “ So long as he is n° rought in contact with the person about to act, and does 272 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. not know who that person may be, he is under no obligation to seek him out, or to stop a transaction which is not due to his own conduct, as the natural and obvious result of it.” It cannot be that A would be estopped by silence with respect to his title to property which B is about to purchase, when he has no knowledge that B contemplates buying and B has no knowledge that A is connected with the property. We know of no case holding that a man is estopped by silence as against the public, or any particular person with whom he has no fiduciary relation. It was said by the Court of Appeals of New York in Vide n. Judson, 82 N. Y. 32, 40, of the cases holding a party to be estopped by his silence: “ In all of them the silence operated as a fraud and actually itself misled. In all there was both the specific opportunity and apparent duty to speak. And, in all, the party maintaining silence knew that some one else was relying upon that silence, and either acting or about to act as he would not have done had the truth been told. These elements are essential to create a duty to speak.” Before holding that defendants are liable by reason of their silence it ought to be made to appear what action they could have taken to prevent the perpetration of the fraud embodied in the prospectus and maps. If they had actually participated in it by circulating these documents, or representing them to be true, the case would have been different; but if they be hel at all it must be by reason of their silence and inaction, when it is not even shown that they were cognizant of the statements contained in them. They may have seen them, but they were not bound to read them, or inform themselves o the truth of their statements, since they were no party to them in any way whatever, and were interested only7 in obtaining payment for their property. But conceding that they were fully apprised of their contents, what action were they bourn to have taken ? They could not give notice to the bun r s of thousands to whom the prospectuses were sent, since t ey were not even apprised of their names or addresses, tice to the company not to send out these prospectuses ''ou have been equally futile, in case the directors chose to isr WISER v. LAWLER. 273 189 U. S. Opinion of the Court. gard it, since they could not control their action, nor could they have sustained a bill for injunction, since they could have shown no personal injury to themselves by reason of the action of the promoters. The difficulty of doing exact justice to the plaintiffs in this case, without also doing an injustice to the defendants, suggests another reason why they should not be charged with liability for the circulation of this prospectus and map without clear proof of their complicity. At the time of the sale of these mining properties their real value must have been unknown. If the mines proved successful they may have been worth millions; if unsuccessful, they would be of little value—perhaps worthless. The amount agreed upon, $450,000, was one which the defendants were willing to take as a compromise, and one which the plaintiffs were willing to pay as a speculation. Each party to the sale took his own chances, and no complaint is made of unfair dealing on either side. In their cross complaint defendants tendered to the court and offered to deliver the deed and possession of the mines upon the payment of the residue due them under the escrow agreement. If the property be now more valuable than the amount agreed to be paid, no reason is apparent why the tender should not have been accepted. If, as appears to be more probable, it is of less value, or wholly valueless, the defendants in refunding the amount paid would not only lose that amount, but all possibility of reselling the mines to other parties, and would thereby assume the risk of an un ortunate speculation, which the whole design of the sale was 0 impose upon the purchasers under the Cowland agreement, name y, the plaintiffs. . In making the purchase the vendees f assume the risk of the mines proving unsuccess- and Z Ven(^ors were evidently unwilling to take this risk, pre erred to take a sum certain for their speculative chances. reffi^tk ecluity the defendants could be called upon to sadcH d e money Paid, it seems unjust that they should also be shortGthW1^1 burden of an unfortunate speculation. In done5 *thCIrcums^arices have so changed that justice cannot be We W1 °yt imposing damages upon the defendants which no within the contemplation of the parties. vol. olxxxix—18 274 OCTOBER TERM, 1902. 189 U. S. Syllabus. If the first alternative prayer of the bill were granted, and it were adjudged that the defendants were estopped from asserting that the Seven Stars Company was not the owner of the mining properties, and adjudging such company to have full title thereto, and that defendants should also repay all the proceeds of ore taken therefrom and received by them, amounting to $47,812.25, it will result that of the $450,000, agreed upon as the price of the property, they would have received but $112,339.96, and would lose $337,660.04, of the amount agreed to be paid. Upon the other hand, if the second alternative prayer were granted, and defendants were adjudged to return the money found due in the first decree of the District Court, namely, $180,139.82, and retake the property, which now appears to be of little value, they would be practically, in either case charged with the entire burden of the venture which it was the express object of the Cowland agreement to avoid. A decree that would bring about this result would savor of punishment to defendants rather than of compensation to plaintiff. We think the plaintiffs have wholly failed to make out such a complicity on the part of the defendants, with the preparation and circulation of these prospectuses, as would make them liable for the losses which the plaintiffs have doubtless sustained. The decree of the court below is, therefore, ’ Affirmed. MISSOURI PACIFIC RAILWAY COMPANY v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHT CIRCUIT. No. 108. Argued January 23, 26,1903.—Decided March 9,1903. Prior to the passage of the act of Congress “ to further regulate com with foreign nations and among the States ” approved Febiuaiy a District Attorney of the United States under the direction o torney General of the United States given in pursuance of a mB)enee by the Interstate Commerce Commission was without powei to co a proceeding in equity against a railroad corporation to lestiai MISSOURI PACIFIC RY. v. UNITED STATES. 275 189 U. S. Statement of the Case. discriminating in its rates between different localities. Held, therefore, that there was error committed below in refusing to sustain a demurrer of a defendant railroad company to a bill filed by a District Attorney of the United States under the circumstances stated. As, however, the act of February 19, 1903, expressly conferred the power which did not theretofore exist and as that act specifically provided that the new remedies which it created should be applicable to all causes then pending, Held, that although the action of the lower court in refusing to sustain the demurrer would be overruled, the case would not be finally disposed of but would be remanded for further proceedings in consonance with the provisions of the act of February 19, 1903. The original bill of complaint in this cause was filed on behalf of the United States against the present appellant in the Circuit Court of the United States for the second division of the District of Kansas on July 26, 1893. To the bill a demurrer was filed and overruled. 65 Fed. Rep. 903. Subsequently exceptions were sustained to an answer, and thereafter an amended answer and a replication were filed. The questions now presented for decision, however, were raised by an amended bill filed on July 19, 1897. In such amended bill it was alleged that the suit was brought on behalf of the United States by the United States attorney for the District of Kansas, by the authority of and under the direction of the Attorney General of the United States, and that such authority and direction had been given in pursuance of a request of the Interstate Commerce Commission of the United States “ that the United States attorney for the District of Kansas be authorized and directed to institute and prosecute all necessary proceedings, egal or equitable, for the enforcement of the provisions of the interstate commerce law against the defendant in relation to the matters herein complained of.” It was further averred in substance that the respondent was subject to the terms and provisions of the act to regulate commerce, 24 Stat. 379, and operated meg of railway between the city of St. Louis in the State of i usouri, and the city of Omaha, in the State of Nebraska, a dis-anceof 501 miles, and between the city of St. Louis and the ji y o Wichita, in the State of Kansas, a distance of 458 miles. was charged that in the transportation of freight between ouis and said cities of Omaha and Wichita the service was 276 OCTOBER TERM, 1902. Argument for Appellant. 189 U. 8. substantially of a like, contemporaneous character, and was made under substantially similar circumstances and conditions but that, notwithstanding such fact, the rates exacted upon shipments of freight between St. Louis and Wichita very much exceeded the rates charged on freight shipped between St. Louis and Omaha. It was averred that the collection of such alleged excessive freight rates or any rate of freight on shipments between St. Louis and Wichita in excess of the rate charged for shipments of freight of a similar character and classification bet ween St. Louis and Omaha, operated an unjust and unreasonable prejudice and disadvantage against the city of Wichita and the localities tributary thereto, and against the shippers of freight between St. Louis and the city of Wichita. Averring that the wrongs complained of “ are remediless in the premises under the ordinary forms and proceedings at law, and are relievable only in a court of equity and in this form of procedure,” the ultimate relief asked was the grant of a perpetual injunction restraining the respondent from continuing to exact a greater rate for transportation of freight of like classification between the city of Wichita and the city of St. Louis than was asked between the city of St. Louis and the city of Omaha. A demurrer was filed to the amended bill upon various grounds, one of which denied the right of the United States to institute the suit. On hearing, the demurrer was overruled, exception was reserved, and, the defendant electing to stand on its demurrer, a final decree was entered granting a perpetual injunction as prayed, and, on appeal, the Circuit Court of Appeals affirmed t e decree, but filed no opinion. An appeal was thereupon allowe . Mr. John F. Dillon, with whom Mr. J. H. Richards, > C. E. Benton, Mr. B. P. Waggener and Mr. Alexander (r. Cochran were on the brief, for appellant. I. The Interstate Commerce Act is a complete code o ^a and rules of procedure, both civil and criminal, governing terstate commerce and radically revolutionizes all prlor P cedure. Aside from private actions at law for damages persons injured (secs. 8, 9), the said act creates new ng MISSOURI PACIFIC RY. v. UNITED STATES. 277 189 U. S. Argument for Appellant. remedies to which all right of redress is limited, and which the general, or common law, so called, did not give. I. C. C. n. B. & 0. R. R. Co., 145 U. S. 263, 275; Express Cases, 117 U. 8. 1; United States ex ret. Morris v. R. R. Co., 40 Fed. Rep. 101; Menacho v. Ward, 27 Fed. Rep. 530; 1. C. C. v. C. N. 0. db T. P. R. Co., 167 U. S. 505. The Interstate Commerce Act is necessarily exclusive as a rule or system of procedure for primary examination into the facts, and in the language of the act for “ the execution and enforcement of its provisions.” Fourth National Rank v. Francklyn, 120 U. S. 747. United States v. Hudson, 7 Cranch, 32; West. Un. Tel. Co. v. Call Pub. Co., 181 U. S. 92, distinguished. II. The Interstate Commerce Act makes special provisions for the remedy by injunction, and such remedy in cases like the present can only be obtained through a previous investigation by the Interstate Commerce Commission. Sections 13 to 16, inclusive, provide a complete plan of procedure, in cases like the present, and in terms and purpose are utterly inconsistent with the right of the United States to bring or maintain the present bill. Before the amendment to § 16 giving the right of recovery at law there existed only the right of equitable relief. Malcoon v. C. &N.W.R. Co., 3 I. C. R. 715. Hitherto uniform course of procedure in cases of this character is against the right to maintain the present suit. An examination of the whole course of the Interstate Commerce Commission will disclose that they have in every single instance, excepting in the case at bar, pursued the course so c early defined by the act, and it is manifest that the commission itself recognizes the procedure we insist upon here. 7. C. C v. N. E. e. Co., 74 Fed. Rep. 70; 5 I. C. R. 650; 7. C. C. V* L. & N. R. Co., 73 Fed. Rep. 409 ; 5 I. C. R. 657. The procedure contended for here is recognized as a condition present to equitable relief. Swift <& Co. v. P. cfe R. R. Co., 58 *ed’ ReP- 858; 4 I. C. R. 633, and Swift & Co. v. P. & R. R. Co; 64 Fed. Rep. 59. These decisions are fatal to the present suit. Also see State ' R- R. Co., 17 Neb. 647; I. C. C. v. Ala. M. R. Co., 168 278 OCTOBER TERM, 1902. Argument for Appellant. 189 U. S. U. S. 174; I. C. C. v. a N. 0. <£ T. P. R. Co., 167 U. 8. 495-506, and cases cited; Texas Pacific R. Co. v. I. C. C., 162 U. S. 204. By reason of its inequality and injustice, the present procedure, if sustained, would deprive the carrier of the right expressly given to “ desist ” or make “ reparation,” etc. See Judge Hook’s decision not yet reported in Vander slice-Lynde Co. v. PLo. P. R. Co., January 7, 1902, United States Circuit Court, Kansas. III. Section 12, upon which the suit here is alleged in the bill to be grounded, does not authorize complainants to bring or the courts to hear the same. The controversy set forth in the bill—namely, whether the rates complained of are discriminatory, as alleged in the bill— is legal and not equitable in its nature, and entitles the defendant, under the Seventh Amendment to the Constitution, to a trial by jury. Said section 12 does not attempt to change or enlarge the jurisdiction of the Circuit Courts in equity, or to authorize a bill in equity, such as the present bill, to determine the reasonableness of rates of discrimination in rates, either in the name of the United States or in that of the commission, and the Circuit Court in equity has no jurisdiction, either generally or under the Interstate Commerce Act, over the particular controversy presented by the bill. The remedy at law by action or by mandamus is adequate. IV. There is no remedy in equity for the case stated in the bill: The Interstate Commerce Act confers no general equity jurisdiction ; on the contrary a resort to an original bill in equity is excluded by the special provisions of the act as to remedies; the remedy by mandamus is adequate. It is an indisputable proposition, in the absence of an express statute, that remedy by bill in equity is not the proper remedy to enforce the performance by a corporation of public duties prescribed by law, and especially to enforce by injunction penal sta utes. Attorney General v. Utica Insurance Company, 2 Jo n* son’s Chancery Rep. 371, decided by Chancellor Kent. See, also, case of People v. Same (quo warranto), 15 Johns. 358; Commonwealth v. Bank, 28 Pennsylvania, 389 {quo warranto), MISSOURI PACIFIC RY. v. UNITED STATES. 279 189 U. S. Argument for Appellant. p. 379 (same matter in equity). Citing and distinguishing, Attorney General v. Rail/road Companies, 35 Wisconsin, 425,1874. The Supreme Court of the United States has always maintained the distinction between mandamus and relief in equity. Their respective functions are distinct. Thus, mandamus and not a bill in equity lies to compel municipalities to levy taxes according to their contract duty. Walkley n. Muscatine, 19 Wall. 167; Heine v. Levee Commissioners, 19 Wall. 655 ; Baric-ley v. Levee Commissioners, 93 U. S. 258; Thompson n. Allen County, 115 U. S. 550; Rosenbaum v. Bauer, 120 U. S. 450; Smith \T. Bourbon County, 127 U. S. 105 ; Butterworth v. United States, 112 U. S. 50. The remedy to compel performance of public duty by corporations is by mandamus and not in equity. The principle is elementary. It is indeed fundamental. To those who recall the nature and extent of the superintending jurisdiction of the Queen’s Bench over all public bodies and corporations, exercised largely by mandamus, and in connection with this the historical development of equity as a supplement and aid to law where the legal remedies were inadequate, the principle is extremely clear. Re Sawyer, 124 U. S. 200, where the general subject is fully considered; Hannewi/rMe v. Georgetown, 15 Wall. 475; Dows n. Chicago, 11 Wall. 108; many cases, Federal and state, are cited in Dillon, Munic. Corp. (4th ed.) secs. 826, 906-908. That the remedy in this case by mandamus is adequate is demonstrable. Tn re Debs, 158 U. S. 564, distinguished. • The Interstate Commerce Act as construed by the courts, aving conferred upon carriers the sole power of making rates, m the absence of any provisions by Congress fixing interstate rates, and it having made the duty of the carriers in making uc rates to take into consideration all of the circumstances an conditions, similar and dissimilar, the schedule or schedules 80 made are presumptively lawful, and the naked allegation an charge in the bill that such rates are unreasonable and iscrinainative, or that there is an undue prejudice under sum ar circumstances and conditions, is not sufficient either to constitute a cause of action or to give the Circuit Court juris-mtion in equity to originally hear and determine the validity 280 OCTOBER TERM, 1902. Argument for Appellee. 189 U. S. of the rates thus fixed. Texas Pacific Ry. Co. v. I. C. C., 162 U. S. 197; 7. C. C. v. Ala. M. R. Co., 168 U. S. 144; 0. N. 0. <& T. P. R. Co. v. I. C. C, 162 U. S. 184-197; T.&P. R. v. I. C. C., 162 U. S. 197-255; 7. C. C. v. Ala. C. M. R. Co., 74 Fed. Rep. 715; 7. C. C. v. C. N. 0. & C. Co. 167, IT. S. 480 ; Parsons v. C. <& N. W. R. Co., 167 U. 447; High on Injunctions, old ed. § 526. Jfr. IF. C. Perry, with whom JZA Assistant Attorney General Beck was on the brief, for appellee. I. The demurrer admits a violation of the law. II. The purpose of the act was to compel equality of treatment, to provide a new remedy and preserve all existing remedies. Interstate Commerce Commission v. Railway, 167 U. S. 479. III. Proceedings before the commission are not exclusive of other remedies. State ex rel. Matoon n. Railroad, 17 Nebraska, 648 ; State ex rel. v. Telephone Co., 17 Nebraska, 126; Lowry v. Railroad, 46 Fed. Rep. 86 ; Railroad v. Railroad, 47 Fed. Rep. 771; Vincent v. Railroad, 49 Illinois, 33; Sutherland Stat. Const, sec. 202; Smith v. Stevens, 10 Wall. 321; United State» v. County of Macon, 99 IT. S. 590 ; Mayor of Nashville n. Railway, 19 Wall. 475 ; Thomas v. TFesii Jersey R. Co., 101 U. S. 52; South v. Maryland, 18 Hun, 402; Hearne v. Insurance Co., 20 Wall. 493; Amy v. City of Salina, 12 Fed. Rep. 414; Oregon Short Line v. R. R. Co., 51 Fed. Rep. 465 ; Osborne v. Railroad, 48 Fed. Rep. 49 ; & C., 52 Fed. Rep. 912; Railway v. Goodrich, 149 IT. S. 680; Kentucky Bridge Co. v. R. R- Co., 37 Fed. Rep. 565; Wright v. United States, 167 U. S. 512; Attorney General v. Railroad Companies, 35 Wisconsin, 425; Coal Company v. Coal Company, 88 Am. Dec. 537 (note); 2 Morawetz on Corporations, sec. 1132; Cumberland Valley R- R-s App-, Penn. St. 227; Sparhawk v. Railroad, 54 Penn. St. 421; State ex rel. v. Saline County Court, 51 Missouri, 350; State e®. r n. Calloway County, 51 Missouri, 395; High on Injunctions, secs. 1303,1304,1554; Interstate Commerce Commission v. R™-way, 167 U. S. 479. # . IV. Even if the commission has exclusive original juris lotion of complaints made by individuals, the rule does not ap MISSOURI PACIFIC RY. v. UNITED STATES. 281 189 U. S. Argument for Appellee. ply to the government. Savings Bank v. United States, 19 Wall. 239; Swearingen v. United States, 11 Gill & J. 373; Commonwealth v. Baldwin, 1 AVatts, 54; United States v. Hoar, I Mason, 314; People v. St. Louis, 5 Gilman,' 351; In re Debs, 158 U. S. 564. V. Section 12 specially authorizes this suit. Sutherland Stat. Const, sec. 240; Wilkinson v. Leland, 2 Pet. 627, 632. VI. Remedies summarized. VII. Cases in which mandatory injunctions have been granted. Great North. B. B. Co. v. B. B. Co., 1 Coll. 507; Earl v. G. N. R. R. Co., 10 Hare, 664; Corning n. Troy Bail. Co., 40 N. Y. 391; Storer v. Great W. B. B. Co., 2 Y. & C. 48; Wilson v. Furnace Co., L. R. 9 Eq. 28; Sanderson v. Cockermouth Co., 11 Beav. 497; Great Nor. Co. v. Manchester Co., 5 De G. & S. 138; Green v. 1IW C. Co., L. R. 13 Eq. 44; Hood v. N. E. Co., L. R. 8 Eq. 666, on appeal; Commonwealth v. Eastern, 103 Massachusetts, 259; Harris v. Cockermouth Co., 3 C. B. N. S. 693; Mariot v. London Co., 1 C. B. N. S. 489; Vincent v. C. de A. R. R. Co., 49 Illinois, 37; District Attorney v. By. Co., 16 Gray, 442; Atty. Gen. v. Boston Wharf Co., 12 Gray, 553; Atty. Gen. v. Lee Co., 104 Massachusetts, 244; Atty. Gen. v. Cohoes Go., 6 Paige, 133 ; Atty. Gen. v. B. B. Co., 1 Stock. 526; Commonwealth v. B. B., 24 Penn. St. 159; Georgetown v. Canal Go., 12 Pet. 98; Atty. Gen. n. Street By. Co., 14 Grant (V. C.) Ch. 673; Commonwealth v. By. Co., 24 Penn. St. 159; Atty. Gen. v. By. Co., 1 D. R. & S. M. 154, 161, 162; Atty. Gen. n. Leicester, 7 Beav. 176. VIII. Equity is equal to every emergency. 2 Red. on Rail, sec. 205; Taylor v. Simon, 4 Myl. & C. 14; More n. Malachy, 1 Myl. & C. 559; Wol/worth v. Holt, 4 Myl. & C. 619-635; Munn v. Illinois, 94 U. S. 113; Chicago (&c. By. Co. v. By. Go., 47 Fed. Rep. 24; Gay v. United States, 138 U. S. 1; Atty. Gen.N. B. B. Compa/nies, 35 Wisconsin, 425. IX. That there may be a remedy at law to persons for damages is no defence to this suit. Atty. Gen. v. B. B. Cos., supra; Suited States v. Baker, 1 Paine, 156 ; 12 United States Digest (first series), p. 745. X. The bill does not plead conclusions of law. The argu- 282 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. ment that the traffic between St. Louis and Omaha, and between St. Louis and Wichita was conducted under similar circumstances and conditions is one of fact, and not of law. Commission v. Railway, 168 U. S. 144 ; Daniell’s Chan. Pl. & Pr. vol. 1, 6th Am. ed., p. 369; Story Equity Pl. sec. 253; Cincinnati, N. O. <& T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 194 ; Interstate Commerce Commission v. Alabama Hid. R. Co., 168 U. S. 144 ; Louisrille & N. R. Co. n. Behlmer, 175 U. S. 648. XI. Although strictly speaking, there is no national common law, and even if carriers have the right at their own risk to make rates which are presumptively lawful, yet these facts do not affect this case. Interstate Commerce Commission v. Ry., 168 U. S. 144. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court. The violation of the act to regulate commerce, complained of in the amended bill, was an asserted discrimination between localities by a common carrier subject to the act, averred to operate an unjust preference or advantage to one locality over another. The right to bring the suit was expressly rested upon a request made by the Interstate Commerce Commission to do so, in order to compel compliance with the provisions of the act to regulate commerce relating to the matters complaine of in the bill. Bearing in mind that, prior to the request of the commission upon which the suit was brought, no hearing was had before the commission concerning the matters of fact complained o, and therefore no finding of fact whatever was made by the commission, and it had issued no order to the carrier to desist from any violation of the law found to exist, after opportunity afforded to it to defend, the question for decision is whether, under such circumstances, the law officers of the United States at the request of the commission were authorized to institu e this suit ? , Testing this question by the law which was in force at e time when the suit was beuun and when it was decided be ow, MISSOURI PACIFIC RY. v. UNITED STATES. 283 189 U. S. Opinion of the Court. we are of the opinion that the authority to bring the suit did not exist. But this is not the case under the law as it now exists, since power to prosecute a suit like the one now under consideration is expressly conferred by an act of Congress adopted since this cause was argued at bar, that is, the act “ To further regulate commerce with foreign nations and among the States,” approved February 19, 1903. By section third of that act it is provided: “ That whenever the Interstate Commerce Commission shall have reasonable ground for belief that any common carrier is engaged in the carriage of passengers or freight traffic between given points at less than the published rates on file, or is committing any discrimination forbidden by law, a petition may be presented alleging such facts to the Circuit Court of the United States sitting in equity having jurisdiction ; and when the act complained of is alleged to have been committed or is being committed in part in more than one judicial district or State, it may be dealt with, inquired of, tried, and determined in either such judicial district or State, whereupon it shall be the duty of the court summarily to inquire into the circumstances, upon such notice and in such manner as the court shall direct and without the formal pleadings and proceedings applicable to ordinary suits in equity. . . And the same section moreover provides as follows: “ It shall be the duty of the several district attorneys of the United States, whenever the Attorney General shall direct, either of his own motion or upon the request of the Interstate Commerce Commission, to institute and prosecute such proceedings, and the proceedings provided for by this act shall not preclude the bringing of suit for the recovery of damages y any party injured, or any other action provided by said act approved February fourth, eighteen hundred and eighty-seven, entitled An act to regulate commerce and the acts amendatory thereof.” Although by the fourth section of the act conflicting laws are repealed, it is provided “ but such repeal shall not affect causes now pending nor rights which have already accrued, but 284 OCTOBER TERM, 1902. Justices Bbewee and Hablak, dissenting. 189 U. 8. such causes shall be prosecuted to a conclusion and such rights enforced in a manner heretofore provided by law [italics ours] and as modified by the provisions of this act.” Nie think the purpose of the latter provision was to cause the new remedies which the statute created to be applicable as far as possible to pending and undetermined proceedings brought, prior to the passage of the act, to enforce the provisions of the act to regulate commerce. In the nature of things it cannot be ascertained from the record whether the railroad company now exacts the rates complained of as being discriminatory and which it was the purpose of the suit to correct; but if it does, of course the power to question the legality of such rates by a suit in equity, brought like the one now here, clearly exists. Under these conditions we think the ends of justice will best be served by reversing the decrees below and remanding the cause to the Circuit Court for such further proceedings as may be consistent with the act to regulate commerce as originally enacted and as subsequently amended, especially with reference to the powers conferred and duties imposed by the act of Congress approved February 19, 1903, heretofore referred to. The decree of the Circuit Court of Appeals is reversed j the decree of the Circuit Court is also reversed, and the cause is remanded to the Circuit Court for further proceedings in conformity with this opinion. Mr. Justice Brown concurs in the result. Mr. Justice Brewer, with whom concurred Mr. Justice Harlan, dissenting. I am unable to concur in either the opinion or the judgmen in this case. I think there was no final decree in the Circuit Court, an that, therefore, the Court of Appeals should have dismisse the appeal. After the cause had been once put in issue by bill, answer and replication, a stipulation was filed as follows. “ Whereas, after joining issue upon the pleadings heretofore filed in the above-entitled suit, to wit, the original bill of com plaint, the demurrer thereto, the original answer, the amen MISSOURI PACIFIC RY. v. UNITED STATES. 285 189 U. S. Justices Brewer and Harlan, dissenting. answer and the replication thereto, it has been determined by all of the parties to, and all of the parties interested in said suit that it is desirable and best that the questions of law arising upon the bill of complaint as amended and a demurrer thereto be first finally adjudicated and put at rest by the Circuit Court of Appeals of the United States and the Supreme Court of the United States; “ Now, therefore, it is hereby agreed and stipulated by and between the above-named complainants, by their solicitors, W. C. Perry and M. Cliggitt, and the above-named defendant, by its solicitors, J. H. Richards and C. E. Benton, that said complainants shall file an amended bill of complaint in said suit, to which said defendant shall file a demurrer, and that, if the court before which said cause is now pending shall overrule said demurrer and allow the relief prayed for in said amended bill of complaint, then said defendant shall proceed to appeal said cause in due course, and that the party, complainants or defendant, against which said Circuit Court of Appeals shall decide adversely, shall, if said party so desires, in due course appeal said cause for final determination to the Supreme Court of the United States. “ And it is further hereby agreed and stipulated that pending said appeal and all the procedure incident thereto the decree and order of said courts, whether it be said Circuit Court of the United States for the District of Kansas, or said Circuit Court of Appeals, or said Supreme Court of the United States, if adverse to said defendant, allowing and decreeing the reliefs and remedies prayed for in said amended bill of complaint, shall be suspended and not enforced against said defendant The Missouri Pacific Railway Company, and when a decision has been rendered in said suit by said Circuit Court of Appeals, or by the Supreme Court of the United States, if the cause is taken to that court, then it is further hereby agreed and stipu-ated that the decision and judgment of either or both of said courts, if adverse to said defendant The Missouri Pacific Railway Company, shall be vacated, set aside and annulled and s all not be regarded as of any force or effect against said deendant The Missouri Pacific Railway Company except so far 286 OCTOB ER TERM, 1902. Justices Brewer and Harlan, dissenting. 189 U. 8. as holding the amended bill to be sufficient, but that said The Missouri Pacific Railway Company shall have the right and shall be permitted to file an answer in said suit, to which said complainants The United States of America shall in due course file a replication thereto, and the issues shall be duly joined and the cause proceed to hearing and determination upon its merits in due course, the intention of this agreement being that the proceedings had upon the demurrer to said amended bill of complaint and the proposed appeal of said suit to a higher court shall in no manner prejudice the right of said defendant to a trial of said suit upon its merits. “ Dated this 16th day of July, 1897. “ W. C. Perky, “ Morris C. Cliggitt, “ Solicitors for Complainant^ On an application made by the complainant, supported by the affidavit of its solicitor, stating that the defendant consented thereto, an order was entered giving the complainant leave to file an amended bill, and also to the defendant, with consent of the complainant, like leave to file a demurrer. An amended bill of complaint and a demurrer thereto were tiled, the demurrer was sustained and, the defendant electing to stand on its demurrer, a decree was entered in behalf of the complainant. A transcript before us shows that all this, from the filing of the stipulation to the entering of the decree, took place on the same day, to wit, July 19. Obviously all subsequently thereto was done in pursuance of the stipulation. That the stipulation was not signed by the solicitors for the defendant is immaterial, as it was for its benefit alone. In the brief for the government in this court, after a statement of preliminary proceedings, it is said : “It being manifest that the great volume of testimony woul have to be taken, and as the defendant had raised the serious question whether the United States could maintain the suit, or had the right, in its own name, and without a preliminary hearing before the Interstate Commerce Commission, to enforce, by injunction, the provisions of the Interstate Commerce MISSOURI PACIFIC RY. v. UNITED STATES. 287 189 U. S. Justices Breweb and Harlan, dissenting. Act which forbid discrimination, it was thought best to finally settle that question. Therefore the stipulation on pages 53-54 was entered into. That stipulation provides for the filing of an amended bill, the levelling of a demurrer thereat, and an appeal or appeals to the United States Circuit Court of Appeals and to this court. The amended bill was filed (pp. 55-60); the defendant demurred (p. 61); the court overruled the demurrer, and the defendant, electing to stand on its demurrer, final decree was entered in favor of the complainant, (pp. 62-73.)” And in the brief for the defendant and appellant it is in like manner said: “ After all this, the parties made the stipulation found on page 53, to the effect that ‘ it is desirable and best that the questions of law arising upon the bill of complaint as amended and a demurrer thereto be first finally adjudicated and put at rest by the Circuit Court of Appeals of the United States and the Supreme Court of the United States,’ which it was stipulated might be done without prejudice to the right of the defendant if it were held that the bill was maintainable to a trial of the suit upon its merits. ‘ lhe amended bill was accordingly filed (Record, pp. 55-60); demurrer thereto was filed (p. 61), and a decree rendered in favor of the complainant.” Now although it may be that the stipulation was not brought into the record by means of a bill of exceptions, and although 1 oes not affirmatively appear that the trial court was made aware of this stipulation, or acted in pursuance thereof, yet as e rai way company brings here a record containing the stipula-enteM ' by counsel for both parties that it was str 616 and subsequent proceedings were had in pur-bv^th^ ° it8 aareements, I think notice should be taken of it coun T ?°Urk indeed, if nothing appeared of record, and ,Se. § °U^ a<^m^ before us that a stipulation had been en-decre lnt° between the parties in respect to the finality of the stinuTt°Ut We not t° a°t on such admission? Can parties courta 6 i Questions of law shall alone be presented to this 5 b at if our decision be one way the case shall there- 288 OCTOBER TERM, 1902. Justices Brewer and Harlan, dissenting. 189 U. S. after proceed in the trial court for an inquiry and decree upon the facts ? I know that the statutes of some States permit the taking of a case to the appellate court upon a ruling made on a demurrer, but we have always held that the decree or judgment must be final before we are called upon to review it. When a case has once been decided by this court no further proceedings can be had in the trial court except upon our direction, whereas here the parties have stipulated that without such direction a new trial may be had. In other words, our decision is not to be final although we affirm the decree. It seems to me that the decree of the Court of Appeals should be reversed and the case remanded to that court with directions to dismiss the appeal. Upon the merits, also, I dissent. The bill is an original bill in behalf of the United States, filed under the direction of the Attorney General, and the fact that the Interstate Commerce Commission requested him to cause this suit to be instituted in no manner adds to or affects the question of the government’s right to maintain it. The commission was not asking the Department of Justice to enforce any of its orders, in which case, as we held in East Tennessee, Virginia & Georgia Railway Company v. Interstate Commerce Commission, 181 U. S. 1, it would become our duty to examine the proceedings had before the commission. This is an independent suit instituted by the government, not to carry into effect any orders of the commission, but to enforce a duty cast upon carriers of interstate commerce, and the right of the government to maintain such a suit does not depend upon the request of any individual or board. The twenty-second section of the act to regulate commerce provides that “ nothing in this act con tained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions o this act are in addition to such remedies.” Every reme y, therefore, that the government or any individual had to com pel the performance by carriers of interstate commerce o legal obligations remains unaffected by that act. We held in In re Debs, 158 U. S. 564, that the United States had a right, even in the absence of a statute specially aut oriz MISSOURI PACIFIC RY. v., UNITED STATES. 289 189 U. S. Justices Brewer and Harlan, dissenting, ing such action, to come into the Federal courts by an original bill to restrain parties from obstructing and interfering with interstate commerce. It seems to me singular that the government can maintain a bill to prevent others from obstructing and interfering with interstate commerce and yet cannot maintain a bill to compel carriers to fully discharge their duties in respect to such commerce. Can it be that the government has power to protect the carriers of interstate commerce and not power to compel them to discharge their duties ? It is said that this is a suit to compel the carrier to refrain from discriminating between places; that there was no common law duty to abstain from such discrimination ; that it is forbidden only by statute. But confessedly it was a common law duty of a carrier to make no unreasonable charges. It is distinctly averred in the amended bill (Rec. 57, 59) : “ And your orators further aver and show unto your honors that said defendant has established and for a long time has maintained and still maintains in force on the line of its railroad between the city of St. Louis and the city of Wichita rates, rules and regulations governing all freight traffic between said cities over the said railroad which are unjust and unreasonable, in this, that said charges for services rendered by said company in the transportation of property and freight of each and every classification between the said city of St. Louis and the city of Wichita is excessive, exorbitant, unreasonable and unjust to the extent and amount that such ratesand charges exceed the rates and charges on the line of said defendant’s railroad between the cities of St. Louis and Omaha, all of which is to the great detriment and hindrance of commerce and trade between the said cities of St. Louis and Wichita, and between the localities to which said cities contribute as a supply point, and to the ir-Sute^6 ^ie an(l to the people of the United * * * * 5jS * * . your orators further aver and show unto your honors at any schedule rates and freight charges for the various s Jpments and classifications hereinbefore set forth between e sa^ cWes of St. Louis and Wichita that are in excess of the vol. clxxxix—19 290 189 U. S. OCTOBER TERM, 1902. Justices Brewer and Harlan, dissenting. tariff schedules and freight charges for shipments of the like kind and class of property between the cities of St. Louis and Omaha are unreasonable, excessive, exorbitant and unjust in and of themselves, and constitute an unreasonable discrimination against Wichita and the localities tributary thereto and the people living therein and against persons shipping freight between the cities of Wichita and St. Louis, and subject such persons and localities to an unjust and unreasonable prejudice and disadvantage.” The truth of these allegations is admitted by the demurrer. The charges for shipments for freight between St. Louis and Wichita are “unreasonable, excessive, exorbitant and unjust in and of themselves.” Surely here is a disregard of what was at common law a plain and recognized duty of the carrier. Further, while at common law a mere difference in the prices charged by the carrier to two shippers respectively might not have been forbidden, yet it may well be doubted whether, if the difference was so great as to amount to an unreasonable discrimination, the rule would not have been otherwise. In Interstate Commerce Commission v. Baltimore <& Ohio R. R, 145 U. S. 263, 275, we said: Prior to the enactment of the act of February 4, 1887, to regulate commerce, commonly known as the Interstate Commerce Act, 24 Stat. 379, c. 104, railway traffic in this country was regulated by the principles of the common law applicable to common carriers, which demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable. It 'vas even doubted whether they were bound to make the same charge to all persons for the same service, Fitchburg R. R-v. Gage, 12 Gray, 393; Baxendale v. Eastern Counties Railway Co., 4 C. B. (N. S.) 63; Great Western Ry. Co. v. Sutton, L .R-4 H. L. 226, 237; Ex parte Benson, 18 S. C. 38; Johnson Pensacola Ry. Co., 16 Florida, 623, though the weight of authority in this country was in favor of an equality of charge to all persons for similar services.” But beyond this the interstate commerce act itself forbids MISSOURI PACIFIC RY. v. UNITED STATES. 291 Justices Brewer and Harlan, dissenting. unjust discrimination, and such discrimination is also clearly and fully set forth in the bill. Can it be that the government is powerless to compel the carriers to discharge their statutory duties? It is nowhere said in the interstate commerce act that this duty or any other duty prescribed by statute is to be enforced only through the action of the commission. On the contrary, as we have seen, it expressly provides that all other remedies are left unaffected by the act, and a duty cast by statute equally with a common law duty may by the very language of the act be enforced in any manner known to the law. Further, the act to regulate commerce, as originally passed, in section 16, required the district attorneys of the United States, under the direction of the Attorney General, to prosecute suits to compel carriers to obey the orders of the commission. If all remedies were to be secured only through action in the first instance by the commission that provision was all that was necessary, but in the amendatory act of 1889, 25 Stat. 855, there was added in section 12 this clause : “ The commission is hereby authorized and required to execute and enforce the provisions of this act ; and, upon the request of the commission, it shall be the duty of any district attorney of the United States to whom the commission may apply to institute in the proper court and to prosecute, under the direction of the Attorney General of the United States, all necessary proceedings for the enforcement of the provisions of this act, and for the punishment of all violations thereof.” Clearly that contemplates just such a case as the present, and when, in the judgment of the commission, it is better that the proceedings should be had primarily in the courts, it may call upon the legal officers of the United States to bring the proper actions. *or these reasons I am compelled to dissent, and I am authored to say that Me. Justice Hablan concurs in this opinion. 292 OCTOBER TERM, 1902. Statement of the Case. 189 U. 8. POTTER v. HALL. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA. No. 168. Submitted February 24,1903.—Decided April 6, 1903. Smith v. Townsend, 148 U. S. 490; Payne v. Robinson, 169 U. S. 323, and Calhoun v. Violet, 173 U. S. 60, decided only that one who, in violation of law, was within the territory in Oklahoma opened for settlement under the act of March 2, 1889, and the President’s proclamation executing the same at the moment of time when the race for land began, was disqualified from entering land. In those cases the question was reserved whether one was disqualified because he had been in the territory prior to the time fixed for its opening, but had retired from the territory and on the day of the opening had made the race for land on an equality with others. Held, therefore, that the court below erred in treating the cases in question as decisive of the question which they reserved. The Land Department charged with the execution of the statute having in many rulings held that prior entry did not disqualify provided the one who had so entered had returned and taken part in the race with the others, unless the prior entry conferred some manifest advantage, which would not otherwise have been possessed, Held, that as this construction of the statute was in accord with the spirit and intent of the act it should not be disregarded by the courts upon the ground that it was in conflict with the mere letter of the statute. The ruling of the Land Department in this particular case that the prior going into the prohibited territory by an entryman who had retired and taken part in the race on an equality with others did not disqualify the entryman, because the prior entry had given him no particular advantage which he would not otherwise have possessed, Held, to be a finding of fact not reviewable by the courts. This case involves conflicting claims to a tract of land in Oklahoma. Potter, the appellant, who was plaintiff below, claiming to be the owner by title derived under the homestead laws of the United States, sued to recover the property. Mrs. Hall, the appellee, the defendant below, by answer and cross petition averred that herself and husband, being duly qualified to enter the land under the homestead laws, were the first to enter upon and occupy it in the year 1889, when it was opened for settlement, and that they had resided on it as their homestead up to the time of the death of the husband, and she thereafter had POTTER v. HALL. 293 189 U. S. Statement of the Case. continued to reside on it as a homestead up to the bringing of the suit. It was alleged that Potter, claiming that he had duly entered upon the land, contested the right of Hall to make entry thereof, on the ground that Hall did not possess the requisite qualifications and had abandoned the land, and that Hall, on the other hand, had contested the right of Potter on the ground that he had unlawfully entered upon the land prior to the time when it was open for settlement in violation of the act of 1889 and the proclamation of the President carrying out the provisions of that act. It was, moreover, alleged that the result of these contests was a recommendation by the local land officers that Hall’s application be approved and that Potter’s be rejected. A copy of the report of the register and receiver was made a part of the cross petition. It was then averred that the Secretary of the Interior, in reviewing the action of the Commissioner of the General Land Office, passing on the recommendation of the register and receiver, had approved the finding of the local officers, but that subsequently the Acting Secretary had reviewed the previous decision of the Secretary, had rejected the claim of Hall and sustained the right of Potter, and that the patent of the United States had issued to Potter in consequence of such decision. The opinion of the Secretary on the first hearing and that on the second were also made part of the cross petition. Charging that the decision of the Secretary in favor of Potter involved error of law reviewable by the court, the prayer of the cross petitioner was that, as the widow of Hall, she be recognized as entitled to make entry of the land; that Potter be adjudged to hold the land under the patent of the United States for her benefit, and that a decree be awarded directing a conveyance. To the cross petition Potter demurred on the ground of no cause of action. The demurrer having een overruled, and Potter declining to plead further, a decree was entered in favor of the defendant Hall, adjudging the land to her and decreeing a conveyance. The Supreme Court of the erritory affirmed the decree. 11 Oklahoma, 173. he material facts found by the Land Department are these: otter entered on the land the 22d of April, 1889, the day upon W lcb it was open for settlement, and continuously maintained 294 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. his residence thereon. Hall first entered upon a part of the land about six months after, that is, in October, 1889. The facts concerning Potter’s entry were stated by the Secretary in his opinion on the first hearing as follows: “ The history of the case and the material facts are set out in the decision appealed from and need not be restated in detail. The tract in question formed a part of the lands in Oklahoma which were opened to settlement at noon on April 22, 1889; shortly before this date Potter had been appointed by the Indian agent of the Cheyenne and Arapahoe agency as assistant chief of police, with instructions to proceed to the east line of the reservation, preserve order and prevent any settlement on the same. The east line of the Cheyenne and Arapahoe reservation is also the west line of the lands opened for settlement as aforesaid, and is within possibly a quarter of a mile from the tract in question. On this morning of April 22, 1889, some three or four hours before the hour of noon, Potter, who it seems was at said line, seeing some freighters camped on the land involved, went thereon to order them off; he then returned to the line, and (at) the hour of noon started in the race for a claim ; he reached the land before any of his competitors, and, as he states, commenced his settlement at one half or one minute after twelve o’clock.” The deduction which the Secretary drew from these facts was thus stated by him: “ In my opinion the facts just stated sustain the conclusion reached by the local officers to the effect that Potter was not qualified to enter the tract in question by going into the territory on the morning of April 22, 1889, before the hour when the lands therein were opened to settlement; he necessarily secured an opportunity to observe the various tracts lying near the line and the ways of reaching them, and this taken in connection with the fact that at the said hour he went directly from the line to the land in question makes it plain in my mind that if he did not previously select the tract of land in dispute, he obtained information that gave him an advantage over rival claim seekers. It follows under the prevailing rulings, Dean v. Simmons, 17 L. D. 526, and cases cited, t t POTTER v. HALL. 295 189 U. S. Opinion of the Court. Potter is not qualified to make entry of land in Oklahoma, and that his application to enter the tract in question must be rejected.” The Acting Secretary, when he came to consider the case on a rehearing or review, whilst accepting the facts concerning Potter’s entry as stated in the previous opinion, drew from them a different conclusion from that which had previously been deduced. He said : “ Accepting this statement as correct, and a reexamination of the record satisfies me of its correctness so far as it goes, I scarcely think the conclusion warranted that he necessarily secured an opportunity to observe the various tracts of land lying near the land and the way of reaching them, so that he obtained information that gave him an advantage over rival claim seekers. He had been employed at the Cheyenne and Arapahoe agency nearby since 1883, and for six years before the opening of the country to settlement he had lived in close proximity to the land in dispute. He had nothing to gain or to learn. Therefore, by the short excursion with which he is charged, and which it cannot be denied, was made in the performance of duty devolved upon him by the orders of the agent who appointed him to the command of the police at that point, he neither gained nor sought advantage, and it was error to hold that under the circumstances of entry into the territory he was disqualified thereby.” Mr. J. If. Sh artel and Mr. J. II. Everest for appellant. Mr. Charles P. Lincoln and Mr. Marie I). Libby for appellee. Mr. Justice White, after making the foregoing statement, elivered the opinion of the court. The Supreme Court of the Territory disregarded the final ac-ion of the Land Department as expressed in the opinion of the cting Secretary on the rehearing, and decreed that Potter e the land in trust for the defendant and appellee on two 296 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. grounds: First, because the final action of the department was held to be a violation of the provisions of the law opening the land in question to settlement; and, second, because, as stated by the court, “We feel less hesitation in reversing the conclusion of the last tribunal of the Land Department ‘ on review,’ not only because the conclusion we now arrive at is that which must necessarily be arrived at upon the facts, (italics ours,) but also because it was the one accepted by the Secretary of the Interior, as well as the Commissioner of the General Land Office.” The conclusion of the court, that the final action of the Land Department was contrary to law, was rested upon what was deemed to be the controlling effect of the rulings in Smith v. Townsend, 148 U. S. 490; Payne v. Robertson, 169 U. S. 323, and Calhoun v. Violet, 173 U. S. 60. But the decisions relied upon do not sustain the conclusion which the court deduced from them. In all three of the cases the only question decided was the validity of an entry made by one who was within the inhibited territory at the time when the land was opened by law for settlement. The cases therefore did not involve whether one who was outside of the territory at the moment of time when the land was opened, lost his right to take part in the race into the territory because at a time previous to that moment, he had been within the territory in ques tion. Indeed, not only was the question which this case presents not embraced within the decisions upon which the court be ow based its conclusion, but it was expressly excluded from t e rulings made in the cases in question. Thus, in Smith v. Townsend, in referring to the statute and the President’s proclamation opening the land for settlement, it was said in the cone u ing passage of the opinion (p. 501): “ It may be said that if this literal and comprehensive meaning is given to these words, it would follow that any one w from in the letter of the statute ; but if at the hour of noon on Apn > when the legal barrier was by the President destroyed, e was in fact outside of the limits of the territory, it may perhaps after March 2 and before April 22, should chance to step the limits of the territory would be forever disqualified a fliOFivin T'lmiTltilpRR Tift WOUld be W it POTTER v. HALL. lgg g Opinion of the Court. said that if within the letter he was not within the spirit of the law and therefore, not disqualified from taking a homestead. Be that as it may-and it will he time enough to consider that question when it is presented-it is enough now to hold that one who was within the territorial limits at the hour ’ April 22, was, within both the letter and the,spirit of the statute, disqualified to take a homestead therein. The court below having then erroneously held that the case was controlled by the previous adjudications of this court, we are called upon to determine the question which was reserved in Smith v. Tmm^nd, that is, whether one who was outside of the legal barrier at twelve o’clock m. on April 22, the day and time when that barrier was removed by operation of law and the terms of the proclamation of the Presidon , was disqualified from participating in the race for the land because prior to that date and within the prohibited period he had been within the territory which was thereafter to be opened or se tlement. The statutes and proclamation of the President y which this question is controlled were fully set out in Smit n. Townsend, supra, and need not be at length restated. Su ce it to say, that the provisions opening the land for settlement, regulating the mode of settlement and the President s proclamation executing these statutes, are found in the act of March 1, 1889, 25 Stat. 757, the act of March 2, 1889, 25 Stat. 980 and 1005, and the proclamation of the President of March 22,1889, 26 Stat. 1546. The first of these acts contained the provision that “ any person who may enter upon any part of said lands in said agreement mentioned prior to the time that the same are opened to settlement by act of Congress shall not be permitted to occupy or to make entry of such lands or lay any claim thereto.” The act of the subsequent day (March 2,1889) contained the following provision : “ But until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this proyi sion shall ever be permitted to enter any of said lands or acquire any right thereto.” The proclamation of the President contained these words. 298 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. “ Warning is hereby again expressly given, that no person entering upon and occupying said lands before said hour of twelve o’clock, noon, of the twenty-second day of April, A. D. eighteen hundred and eighty-nine, hereinbefore fixed, will ever be permitted to enter any of said lands or acquire any rights thereto.” Doubtless, as observed in Smith v. Townsend, a rigorous adherence to the mere letter of these statutes and the terms of the proclamation would exclude every person from the right to enter and occupy land within the prohibited territory, even although such person was outside of the territory, and therefore on an equality with all others if perchance such persons had accidentally or otherwise gone into the prohibited territory between the second day of March and the twenty-second day of April. But it is also true that if the provisions of the statute and proclamation be enforced, not according to their mere letter, but in harmony with the intention which may be fairly deduced from them, a contrary rule would result. Whilst, as held in Smith v. Townsend and the cases referred to which have followed it, obviously the purpose of the statute was to exclude any one from entering land who was within the territory at the period fixed for the opening, it may well be doubted whether the words “ enter upon and occupy,” as used in tbeact of 1889 and in the President’s proclamation, embrace the mere accidental or casual presence in the prohibited territory subsequent to the 2d of March and prior to the 22d of April of one who was outside on the 22d of April, and therefore in a position of substantial equality with others seeking to make the race for the land. The Land Department, charged with the execution of t e act, was early called upon to determine whether one who was outside of the territory at the time of the opening, and too part in the race for land was disqualified because, subsequent to the second of March, and before the opening, he had been wit in the limits. In the case referred to the entryman had, on e 20th of April, crossed the line accidentally and gone two mi es into the territory, but on being informed of the fact, h tired and waited with others on the line until the 22d, the ay POTTER v. HALL. 299 189 U. S. Opinion of the Court. of opening. After considering the terms of the statute the conclusion was reached that an entry of this kind was not within the spirit of the prohibition of the statute, and the entry was confirmed. Donnell v. Kittrell, (1892) 15 L. D. 580. This ruling was followed in Higgins v. Adams, 18 L. D. 598, where it was held that one who had gone into the disputed territory on the morning of the day of the opening for the purpose of watering his team, and who, on completing this object, had returned to the boundary and made a start with the others, did not come within the spirit of the statute. In Curnutt v. Jones, 21 L. D. 40, (1895) the whole subject was elaborately reviewed and many prior cases referred to. Briefly the facts in the case were these: The entryman had resided for several years in the vicinage of the prohibited territory, and had habitually entered therein for the purpose of getting his mail. On the day, however, of the opening he was at the line with others and took part in the race for land. It was held that the prior entry did not deprive him of the right to enter land ; that whether entry prior to the day of the opening affected the right to make entry would depend upon the facts of each particular case, and upon whether, in considering them, it was concluded that the prior entry placed the one who had made it in such a position of advantage over others as to render it unjust and inequitable to allow him to make an entry of land. In summing up the case Mr. Secretary Smith, in his opinion, said: Jones, the defendant in this case, had lived for some time on the border of the territory, within less than a mile from the ine, and almost from the necessity of his situation was familiar with the lands in the immediate vicinity. His information respecting them, and particularly respecting the tract subsequently entered by him, is shown to have been acquired long poor to March 2, 1889, and as was well said in the case of 0 en v. Colds Heirs, supra, (it was impossible to deprive PeoP e who had been over the territory of the knowledge they h* periodical visits to Oklahoma City, ic was at once his post office, his most convenient and ac-haT h ra^way station, and his market town, do not appear to a'e rought him any advantage over other persons seeking lands in the territory.” 300 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. In Tipton n. Maloney, 23 L. D. 186, (1896) it was held that one who within the prohibited period had passed along the highways in the territory was not disqualified for making an entry, provided he was outside of the line on the day of the opening and took part on an equality with others in the effort to secure land. And rulings to the like effect were made in Hensley v. Waner, 24 L. D. 92, and Henderson v. Smith, 28 L. D. 303. The settled rule then applied by the Land Department in the execution of the statute is that one who took part in the race for land on the day of the opening was not prohibited from taking land because of a prior entry into the territory unless it be shown that manifest advantage resulted to the entryman from his previous going into the territory. The rule thus for a long period and consistently enforced must obviously have become the foundation of many rights of property. And as we consider that the rule thus applied in the practical administration of the statute by the officials by law charged with its execution conforms to its intention, we are unwilling to overthrow it by a resort to a narrow and technical construction. It remains only to consider whether error was committed by the department in finally ruling that the entry made by Potter on the morning of the 22d, before he returned to the line to take part in the race, involved error of law reviewable by the courts. But as such entry did not, as a matter of law, preclude Potter’s right to go outside of the territory and take part in the race for land, but depended upon whether, as a matter of fact, he obtained by his previous going into the territory a substantial advantage over others, whic he would not have otherwise possessed, it follows that the fina conclusion of the department that no such advantage result , involved but the finding of an ultimate fact and not a cone u-sion of law, and it is, therefore, not reviewable. If the fac found by the Secretary had no tendency to sustain the conc n sion reached by him it might be that a question of law wou arise, but such is not the case. Indeed, in view of the fin ino that Potter had been for a long period of time living across t e line in close proximity to the land which he entered, and w w was only a quarter of a mile distant from the place where e FARMERS’ &c. INS. CO. v. DOBNEY. 301 189 U. S. Syllabus. race began, and that he reached the land in two minutes from the time when the start was made, it might well be argued that his going into the territory, as stated, had no tendency to establish that he obtained an advantage by reason of acquiring information which he had not previously possessed. But so to say would lead only to the conclusion that as a matter of law the department rightly held that Potter was a qualified entryman. The fact that the final conclusion as to the ultimate facts reached by the department differed from the conception of such ultimate facts entertained by the department in previous stages of the controversy, affords no ground for disregarding the conclusion of ultimate fact finally reached, which was binding between the parties. The judgment of the Supreme Court of the Territory must he reversed, and the cause remanded for further proceedings in accordance with this opinion. FARMERS’ AND MERCHANTS’ INSURANCE COMPANY v. DOBNEY. ERROR to THE SUPREME COURT OF THE STATE OF NEBRASKA. No. 189. Submitted March 9,1903.—Decided April 6,1903. ere the allowance of an attorney’s fee under the provisions of a state statute is the basis of the Federal right asserted, and it appears that one ° the assignments of error relied upon before, and considered and expressly decided by, the highest court of the State was that the statute was unconstitutional and void and in conflict with the Fourteenth Amendment for the want of mutuality and deprived the plaintiff in error of the Se t^ fche law, the motion to dismiss will be denied. tfa1008 c^iaP^er 48 of the laws of Nebraska of 1899, by which court upon rendering judgment for a total loss sued for against an ert^h nCe C°mpany uPon any policy of insurance against loss on real prop-y ®ie’ tornado or lightning shall allow the plaintiff a reasonable of tl>nCR 8 taxed as costs is not repugnant to the equality clause sur 6 Ourteenth Amendment either because it arbitrarily subjects iri-oth41106 COmpan’es t° a liability for such fees when other defendants in er cases are not subjected to such burden, or because the fee is to be 302 OCTOBER TERM, 1902. Opinion of the Court. 189 U. 8. imposed on the insurance companies but not on the insured when the suit is successfully defended, or because the statute arbitrarily distinguishes between different classes of policies allowing the fee in certain cases and not in others. The case is stated in the opinion of the court. J/r. Halleck F. Rose for plaintiff in error. J/r. P. Kinkaid and J/r. J/. F. Harrington for defendant in error. Mr. Justice White delivered the opinion of the court. Having been adjudged to pay the amount of a fire policy written on the dwelling house of the defendant in error, which was totally destroyed by fire, the plaintiff in error prosecutes this writ. The judgment was for $861.40 with interest, costs, and $150 as a reasonable attorney’s fee. This latter amount was fixed under authority conferred on the court by sections 43, 44 and 45 of chapter 43 of the Compiled Statutes of Nebraska, which are a reproduction of chapter 48 of the laws of Nebraska for 1899. The sections in question are reproduced in the margin.1 The allowance of the attorney’s fee is the basis of the Federal right asserted. It is moved to dismiss the writ on the ground that the Federal right was not specially set up 1 Compiled Statutes of Nebraska, chapter 43. Sec. 43. Whenever any policy of insurance shall be written to insure any real property in this State against loss by fire, tornado, or lightning, an the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of the insurance written in such policy shall be taken conclusively to be the true value of the piop-erty insured, and the true amount of loss and measure of damages. Seo. 44. This act shall apply to all policies of insurance hereafter ma e or written upon real property in this State, and also to the renewal, w io shall hereafter be made, of all policies heretofore written in this State, and the contracts made by such policies and renewals shall be construe be contracts made under the laws of this State. Seo. 45. The court, upon rendering judgment against an insurance com pany upon any such policy of insurance shall allow the plaintiff a reason able sum as an attorney’s fee, to be taxed as part of the costs. FARMERS’ &c. INS. CO. v. DOBNEY. 303 189 U. S. Opinion of the Court. below as required by Rev. Stat. 709, or was in any event alleged too late to enable the Supreme Court of Nebraska to consider it. Among the assignments of error contained in the petition in error filed before the hearing in the Supreme Court of Nebraska was the following: “ Section 45 of chapter 43 of the Compiled Statutes, under which the court assumed to allow and order an attorney fee to be taxed, is unconstitutional and void for want of mutuality of the provisions and for excluding defendant from the benefits and privileges thereby given to plaintiff, and for depriving defendant of the equal protection of the laws ; in each of which particulars the said section is in conflict with section 1 of the Fourteenth Amendment to the Constitution of the United States, and in conflict with section 3 of article 1 and section 15 of article 3 of the constitution of Nebraska.” The case was considered by commissioners appointed pursuant to the Nebraska law to aid the Supreme Court of the State in the discharge of its duties. The commission in an elaborate opinion recommended the affirmance of the judgment. In such opinion the assignment of error concerning the attorney’s fee, above quoted, was considered and numerous cases decided by the Supreme Court of Nebraska sustaining its allowance under the statute in question were referred to. It was said in the opinion that the legality of the attorney’s fee “ was not an open question in this State ” because the right to allow the fee had been previously sustained by the Supreme Court of the State in many cases. A passage from the case of La/nca-t i/re Insurance Company n. Bush, 60 Nebraska, 116, expressly eclaring that the statute concerning the allowance of the attorney s fee was consistent both with the Constitution of the nited States and of the State of Nebraska, was approvingly cited, the passage in question being as follows: These decisions are vigorously attacked, but we are convinced, as the result of further investigation of the subject, that iue\are S0Un(^ an(^ should be adhered to. There is nothing in f e,. .°ns^^u^on the United States, or of this State, which °Tb S c^ass^cation of subjects for the purpose of legislation.” e Supreme Court of Nebraska, for the reasons stated in 304 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. the report of the commission, affirmed the judgment. 62 Nebraska, 213. It results that not only was the Federal question relied upon specially called to the attention of the Supreme Court of the State of Nebraska, but it was by that court expressly decided. The grounds upon which the motion to dismiss is predicated are, therefore, without merit, and it is overruled. All the grounds relied upon to demonstrate that the statute allowing a reasonable attorney’s fee in case of the unsuccessful defence of a suit to enforce certain insurance policies is repugnant to the equality clause of the Fourteenth Amendment, are embraced in the following propositions : First, because it arbitrarily subjects insurance companies to a liability for attorney’s fees when other defendants in other classes of cases are not subjected to such burden; second, because whilst the obligation to pay attorney’s fee is imposed on insurance companies in the cases embraced by the statute, no such burden rests on the plaintiff in favor of the insurance companies where the suit on a policy is successfully defended ; and, third, because the statute arbitrarily distinguishes between insurance policies by allowing an attorney’s fee in case of a suit on a policy covering real estate, where the property has been totally destroyed, and excluding the right to such fees in suits to enforce policies on other classes of property or where there has not been a total destruction of the property covered by the insurance. Each and all of these propositions must rest on the assumption that contracts of insurance, generically considered, do not possess such distinctive attributes as to justify their classification separate from other contracts, and that contracts of insurance as between themselves may not be classified separately depending upon the nature of the insurance, the character of the proper} covered, and the extent of the loss which may have supervened. But the unsoundness of these propositions is settled by the previous adjudications of this court. Orient Insurance Company v. Daggs, 172 U. S. 557; Insura/nce Company v. Warren, 1 U. S. 73; Insurance Compa/ny v. Mettler, 185 U. S. 308. n the Orient case, a statute of the State of Missouri, which su jected fire insurance contracts to an exceptional rule, was up- FARMERS’ &c. INS. CO. v. DOBNEY. 305 189 U. S. Opinion of the Court. held, not only on the ground of the right of the State to prescribe the conditions upon which an insurance company should transact business within its borders, but also because the rule in question was the lawful exercise of the power to classify. In the Warren case a like principle was applied to a statute of the State of Ohio establishing a particular regulation as to life insurance companies. In the Mettler case a statute of the State of Texas was sustained, applicable alone to life insurance policies, which authorized the enforcement, not only of a reasonable attorney’s fee, but also of twelve per cent damages after demand in case of the unsuccessful defence of a suit to enforce a life insurance policy. In all three of the cases referred to, therefore, it was necessarily held that insurance contracts were so distinct as to justify legislative classification apart from other contracts or to authorize a classification of insurance contracts so as to subject one character of such contracts when put in one class to one rule and other varieties of such contracts when placed in another class to a different rule. The only claimed distinction between the cases previously decided and the present one is that in this case the classification is made to depend, not alone upon the general character of the contract, but upon the kmd of property insured and the extent of the loss. This it is elaborately argued takes this case out of the rule established y the previous cases and causes the statute to be repugnant to the Fourteenth Amendment. But as the rule settled by the previous cases is that contracts of insurance from their very nature are susceptible of classification, not only apart from o er contracts, but from each other, it must follow, as the esser is included in the greater, that the character of the prop-y insured and the extent of the loss afford reasons for sub-classification. . 11 ¿S’ however, argued that no reason could have existed for ass! ymg losses on real estate separately from losses on other th^erty]’ hy what process of reasoning, it is asked, could ino- tp51S a^ve mhid have discovered the foundation for allow-loss f6 re(?overy a reasonable attorney’s fee in case of a total whe° tb^ eS^a^e ins“red and not permit recovery of such fee e property insured has been only partially destroyed ?■ VOL. clxxxix—20 306 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. The distinction between real and personal property has in all systems of law constantly given rise to different regulations concerning such property. The differences of relation which may arise between the insurer and the insured, depending upon whether the property insured has been only partially damaged or has been totally destroyed, needs but to be suggested. In the one case, the amount of the damage affords possibilities for a reasonable difference of opinion between the parties in adjusting the payment under the policy. In the other, the amount being determined under the statute by the value fixed by both parties in the policy, the question of legal liability under the policy would be, as a general rule, the only matter to be considered in determining whether payment under the contract will be made. Besides, it is obvious that the total destruction of real estate covered by insurance necessarily concerns the homes of many of the people of the State. If in regulating and classifying insurance contracts the legislature took the foregoing considerations into view and provided for them, we cannot say that in doing so it acted arbitrarily and wholly without reason. Affirmed. Mr. Justice Harlan, Mr. Justice Brewer and Mr. Justice Brown dissented. ONONDAGA NATION v. THACHER. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 234. Argued April 8, 9,1903.—Decided April 27,1903. Writ of error dismissed for want of jurisdiction, because no claim of Fed eral right was specially set up or called to the attention of the state cour in any way, and that court did not pass upon or necessarily detei mine any Federal question. This action was originally brought by the Onondaga Nation and Te-has-ha, an Onondaga Indian. Subsequently severa pther Onondaga Indians, one Seneca Indian, a Cayuga Indian ONONDAGA NATION v. TH ACHE R. 307 | 189 U. S. Statement of the Case. I and the University of the State of New York were made additional plaintiffs. The ultimate object of the action was to recover from the defendant four wampum belts, to which defendant asserted ownership by purchase, but which were averred by the plaintiffs to be the property of a league or con- . federacy of Indian tribes, known as the “ Ho-de-no-sau-nee.” | The Onondaga Nation, through an officer selected by it, was averred to be the lawful keeper or custodian of said belts. The league or confederacy referred to was also at one time known as the Iroquois Confederacy, as the Five Nations (consisting of the Mohawk, Onondaga, Seneca, Oneida and Cayuga tribes) and, after the Tuscarora Nation of Indians came into the league, as the Six Nations. By an amendment to the complaint it was alleged that on February 26, 1898, “the Onondaga Nation elected the University of the State of New York to the office of wampum keeper, and by bill of sale sold and transferred to the University of the State of New York all its interest in the said wampums ; ” and the right to the custody of the belts was alleged to be in said University. These wampum belts were thus described : “ One belt of dark wampum beads representing the confederation organization of the Five Nations under Hiawatha; one belt representing the first treaty stipulation between the Six Nations and General George Washington, picturing in wampum beadwork the council house, General Washington, the O-do-ta-ho, or president of the tribes, and thirteen representatives of the colonies ; also two fragments of other belts, one representing the first approach to the Indians of the ‘ people with white faces,’ and the other a narrow belt representing the unity of the Five Nations.” The complaint contained no allusion to the Constitution, treaties or statutes of the United States. In substance the answer contained a recital of the facts connected with the purchase of the belts, and it was asserted that absolute ownership thereof existed in the defendant. The action was tried at a special term of the Supreme Court °f Onondaga County, New York. After the introduction of oral and documentary evidence, the court filed findings of fact 308 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. and conclusions of law. The defendant was found to be the absolute owner of the property in question; the Onondaga ¿Nation was held not to have legal capacity to sue; the University of the State of New York was decided not to have such interest in the subject matter of the action as entitled it to bring an action for the recovery of any or either of the wampum belts; and the individual Indians made parties plaintiff were adjudged not to possess such a community of interest with the members of the various tribes constituting the league or confederacy which it was alleged originally owned the belts, as to permit the maintenance by them of the action. Beyond statements made in testimony or in recitals of historical facts showing that the general government had made treaties with the confederacy of the Six N ations and with certain of the tribes which had composed the confederacy, and that said treaties had been evidenced by the exchange of belts of wampum, there was not contained in the evidence or in the findings referred to, or in the judgment rendered or in the exceptions thereafter filed by the plaintiffs to the findings of the court, any allusion to the Constitution, treaties or statutes of the United States. On appeal the appellate division of the Supreme Court of New York for the fourth judicial department affirmed the judgment of the trial court. An appeal was then taken to the Court of Appeals of the State of New York, and that court affirmed the judgment, 169 N. Y. 584, upon the following per curiam opinion: “We think the judgment appealed from should be affirmed, upon the ground that neither the Onondaga Nation nor the individual Indians named as plaintiffs, had legal capacity to bring and maintain the action. Strong v. Waterman, 11 Paige, 607; Seneca Nation v. Christie, 126 N. Y. 122; Johnson v. Lwy Island R. R. Co., 162 N. Y. 462. “ As to the University of the State of New York, one of the plaintiffs, the finding of fact by the trial judge, ‘ that the University of the State of New York never purchased any or either of the wampum belts mentioned and described in the complaint, and that said University of the State of New York never was selected or “ raised up ” to the position or office of “ wampum ONONDAGA NATION v. THACKER. 309 189 U. S. Opinion of the Court. keeper,” and no official proceedings were ever begun on the part of any of the tribes of Indians which formerly composed said Iroquois Confederacy for the purpose of conferring any such position or office upon said University of the State of New York, assuming that there is or was, at the time of said alleged proceedings, any such official position,’ is supported by evidence, and the judgment having been affirmed at the appellate division, it is, therefore, conclusive upon us.” The record and the proceedings in the cause having been remitted to the Supreme Court of Onondaga County, and the judgment of the Court of Appeals having been made the judgment of the lower court, a writ of error was allowed to review this latter judgment. As-que-sent-wah (Edward Winslow Paige) for plaintiffs in error. Jfr. John A. Delehanty for defendant in error. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court. The jurisdiction of this court to review the judgment complained of is controlled by section 709 of the Revised Statutes. Now, so far as we have been able to ascertain from a careful examination of the record there was not drawn in question in the courts of the State of New York in the case at bar, in any manner, the validity of a treaty or statute of, or an authority exercised under, the United States, and the courts of the State of New York rendered no decision against the validity of any such treaty, statute or authority. Nor is there anything contained in the record to indicate that there was drawn in question in the state courts the validity of any statute of, or the validity of an authority exercised under, a State, and necessarily there was no decision sustaining the validity of any state statute or authority exercised under a State, alleged to be repugnant to the Constitution, treaties or laws of the United States. Neither can we find anything in the record to warrant the con-ention that the plaintiffs in error ever, specially or otherwise, 310 OCTOBER TERM, 1902. 189 U. 8. Opinion of the Court. set up or claimed, in the course of the litigation in the courts of New York, which is under review, any title, right, privilege or immunity under the Constitution, or a treaty or statute of, or commission held or authority exercised under, the United States. There are no formal assignments of error in the record or in the brief of counsel for plaintiffs in error. It is, however, asserted in such brief that a Federal question arises upon the record because of the ruling by the Court of Appeals of the State of New York, that “ there was evidence supporting the finding of fact by the trial judge that the University of the State of New York never purchased any or either of the wampum belts mentioned and described in the complaint, and that said University of the State of New York never was selected or ‘ raised up ’ to the position or office of ‘ wampum keeper,’ and no official proceedings were ever begun on the part of any of the tribes of Indians which formerly composed said Iroquois Confederacy for the purpose of conferring any such position or office upon said University of the State of New York, assuming that there is or was, at the time of said alleged proceedings, any such official position.” Referring to this ruling of the Court of Appeals of New York, counsel for plaintiffs in error say: “ It is plain that this is a holding that the Council of the On-ondagas had no power to select a depositary for the wampums. It is not that the University could not take, could not act and could not sue, but ‘ that it never teas selected, for the position of wampum keeper. As the action of the Council selecting it, or voting its selection, is admitted on the record, this can only mean that the action of the Council of the Onondagas was void as beyond its power, and thus the Federal question is right up, because the case was decided by the Court of Appeals upon that question solely” But, even if the quoted matter is susceptible of the construe tion that it adjudged that the Council of the Onondaga Nation of Indians did not possess the power which it is claimed t ey attempted to exercise in 1898, to select the University State of New York as the depositary for the wampums, it18 not apparent, and no reason has been advanced which ena SHURTLEFF v. UNITED SPATES. 311 189 U. S. Statement of the Case. us to discover how a Federal question can be evolved from the holding referred to which would entitle us to review the judgment below. Certainly, the Court of Appeals of New York did not suppose that a Federal question was lurking in the record presented for its consideration. In any event, as we find that no claim of Federal right was specially set up, or called to the attention of the state court in any way, we are without jurisdiction to review the judgment of the state court. Telluride Power Transmission Co. v. Rio Grande Western Railway Co., 187 IT. S. 569, 580. Writ of error dismissed for want of jurisdiction. SHURTLEFF v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 76. Argued January 20,1903.—Decided April 6,1903. Where Congress creates an office and provides for the removal of the incumbent at any time for inefficiency, neglect of duty, or malfeasance in office, if the removal of the officer is sought to be made for any of those causes he is entitled to notice and a hearing; but if the President removes him without giving him notice and an opportunity to defend himself, it must be presumed that the removal was not made for any of the causes assigned in the statute. In the absence of constitutional or statutory provision the President can, by virtue of his general power of appointment, remove an officer, even though he were appointed by and with the advice and consent of the Senate. This power (assuming, but not deciding, that Congress could deprive the President of the right to exercise it in such a case as this) cannot be taken away by mere inference or implication, and in the absence of plain language in the statute Congress will not be presumed to have taken it away. Under section 12 of the Customs Administrative Act of June 10, 1890, providing for the appointment of general appraisers and their removal y the President for inefficiency, neglect or malfeasance in office, the resident may also remove such officers without any of the causes speci-ed, under his general power of removal. The appellant seeks to review a judgment of the Court of Claims denying his right to be paid the salary pertaining to 312 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. the office of a general appraiser of merchandise and accruing between May 15 and November 1, 1899. The court refused to decree payment of the claim on the ground that he was notone of the appraisers during the time for which he demanded such salary. The facts, as they appear in the findings of the Court of Claims, are that the appellant was nominated on July 17,1890, to be one of the general appraisers of merchandise under the act of June 10, 1890, chapter 407, 26 Stat. 131, and that nomination was consented to on the following day by the Senate, and the appellant was thereupon commissioned to be such general appraiser of merchandise. He accepted that office and took the oath required on July 24, 1890, and remained in such office and was paid the salary attached thereto up to May 15, 1899. On May 3 of that year he received the following communication from the President: “ Executive Mansion, “ Washington, D. C., May 3, 1899. “Sir: Yqu are hereby removed from the office of general appraiser of merchandise, to take effect upon the appointment and qualification of your successor. “ William McKinley.” The appellant never resigned his office nor acquiesced in any attempted removal therefrom, and he was never notified or informed of any charges made against him, either of inefficiency, neglect of duty or malfeasance in office, and he knows of no cause for his removal from the office having been ascertained or assigned by the President. Since May 15, 1899, he has been ready and willing and offered to discharge the.duties of the office, and has not been paid any salary since that date. He has made monthly demand upon the Treasury Department for the salary attaching to the office from May 15 to November 1, and such demand has been refused. On May 12, 1899, an appointment was made during the recess of the Senate to fill the vacancy caused by the removal of the petitioner from his office, and such appointment was to be SHURTLEFF v. UNITED STATES. 313 189 U. S. Opinion of the Court. in effect not longer than to the end of the next session of the Senate of the United States. The appointee under that commission took the oath of office and entered upon the duties thereof on May 12, 1899, and has received pay as such officer beginning on May 19, 1899, up to the present time. On December 15,1899, he was nominated to the Senate and the nomination to that office was confirmed on January 17, 1900, and he was commissioned by the President under the above confirmation on January 22, 1900, and took the oath of office under that appointment on January 26, 1900, and since that time has remained in the office to which he was so appointed. Upon these findings the Court of Claims decided, as a conclusion of law that the appellant was not entitled to recover, and his petition was therefore dismissed. 36 C. 01. 34. Jfr. Edwin B. Smith for appellant. Jfr. Assistant Attorney General Pradt for appellee. Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. The office of general appraiser of merchandise was created by the twelfth section of the act of Congress approved June 10, 1890, commonly called the Customs Administrative Act. 26 Stat. 131,136. The material portion of that section reads as follows: “Sec. 12. That there shall be appointed by the President, by and with the advice and consent of the Senate, nine general appraisers of merchandise, each of whom shall receive a salary of seven thousand dollars a year. Not more than five of such general appraisers shall be appointed from the same political party. They shall not be engaged in any other business, avocation, or employment, and may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office. . . There is, of course, no doubt of the power of Congress to create such an office as is provided for in the above section. Under 314 OCTOBER TERM. 1902. 189 Ü. 8. Opinion of the Court. the provision that the officer might be removed from office at any time for inefficiency, neglect of duty, or malfeasance in office, we are of opinion that if the removal is sought to be made for those causes, or either of them, the officer is entitled to notice and a hearing. Reagan v. United States, 182 U. S. 419, 425. In speaking of causes of removal, Mr. Chief Justice Fuller said in that case : “ The inquiry is therefore whether there were any causes of removal prescribed by law, March 1, 1895, or at the time of the removal. If there were, then the rule would apply that where causes of removal are specified by Constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient.” Various state courts have also held that where an officer may be removed for certain causes, he is entitled to notice and a hearing. See Dullam v. Willson, 53 Michigan, 392,401; P 1878, for the sale of timber lands in Washington Territory and elsew er and that in the purchase of the land they fully complied with the aw of the United States and the rules and regulations of the Land ment; that the applications were allowed and certificates duly issue applied for, and the lands included in the entries were at all times c ’ valuable for timber thereon and at that time unfit for cultivation, a v 4. f i the 13^** that thereafter based upon a misconstruction of the act oi office cancelled the entries on the ground that as the land could e c vated after the removal of the timber it was not subject to entry as berland: THAYER v. SPRATT. 347 189 U. S. Statement of the Case. Z/eii, that the original entries were valid and that the conveyances of the original entrymen passed a good title to their grantee for which he was entitled to a patent from the United States. The plaintiffs in error in December, 1898, brought this action in the state court against the defendant for the purpose of quieting their title to certain land described as section 32 in township 9, etc., situated in Cowlitz County, State of Washington. They obtained judgment in their favor for the northwest and southwest quarters of the section, but the court gave judgment in favor of the defendant for the northeast and the southeast quarters of the same section, and directed that the patents for the two quarters of the section which had been issued on June 25, 1890, to plaintiffs’ grantors should be held by the plaintiffs in trust for the defendant, and that the plaintiffs should execute a proper deed therefor, and in default of such deed of conveyance the decree of the court was to stand and be treated in the place of such deed. The plaintiffs appealed from that portion of the judgment just described to the Supreme Court of the State, where it was affirmed, 25 Washington, 62, and they have brought the case here for review. The northeast and the southeast quarters of the section were entered in the proper land office in Washington under the act of Congress approved June 3, 1878, and entitled “ An act for the sale of timber lands in the States of California, Oregon, Nevada and in Washington Territory.” 20 Stat. 89. These entries were made on May 26, 1883, and the entrymen, after payment for the land by them to the land office and the receipt of a certificate of such payment, and about six months thereafter, assigned and transferred the certificates to the defendant for a valuable consideration paid to them by him. After such trans-ers had been made and a record of the deeds of conveyance d also been made in the records of Cowlitz County, which ^as the proper office, the Land Department informed the regis-er and receiver of the land office at Vancouver, Washington, at action had been suspended upon the entries based upon the report of the special agent regarding the lands, and the departmen directed the register and receiver to give notice to the original entry men of a time and place when and where they 348 OCTOBER TERM, 1902. 189 U. S. Statement of the Case. might be heard, and in default that their entry would be cancelled. The department also stated that it appeared from the report of its special agent that the lands had been transferred by warranty deed of March 13, 1884, to the defendant, and it therefore directed that notice should be given him as the transferee, but for some reason this direction was overlooked and no notice was ever given defendant of the pendency of any proceedings towards the cancellation of the certificates or either of them which had been transferred to him. At the time he purchased the certificates the defendant resided in Alpena, Michigan, and resided there for thirty years, and the deeds to defendant, which were on record, showed his residence to be in that place. The notices by mail to the entrymen were not received, the letters to them being returned as “ uncalled for,” and so it happened that there was no hearing before the Land Department upon the return of the order, and the entry was cancelled in the absence of both of the entrymen and the defendant, the transferee. The action of the department was taken upon the report of one of its inspectors, which was founded, as stated in the report of such inspector, upon the fact that the land was not of the character provided for in the act, for the reason that, although covered by a heavy growth of valuable timber and chiefly valuable as such at that time, yet as it would be fit for cultivation when the timber should be removed, it was on that ground held that the land was not subject to entry under the timber act of 1878, supra. This was the sole and only reason upon which the Land Department rested its action in cancelling the entries and certificates. After their cancellation, certain homestead entries were made upon these two quarter sections by Benjamin L. Hennis for the northeast quarter, and by Ellis Walker for the southeast quarter, patents were issued to them, and the plaintiffs deraign title from those patentees. Upon the trial evidence was given by the defendant as o the character of his ownership; that he purchased the different quarter sections in good faith from each of the parties who THAYER v. SPRATT. 349 189 U. S. Statement of the Case. had entered them, and without any agreement in reference to the purchase before final proof, etc., and that he had never heard of the entrymen before he made the purchase from them through his agent, and paid them the sum of $800 for each quarter section, (double the price paid for the land by the entrymen to the government,) and that the total cost of the land, including his expenses paid to his agent and to the parties who made the locations, etc., amounted, as the defendant testified, to about $4400. The defendant on the trial also gave evidence tending to show that the land in question had the finest quality of timber on it, and that in its then existing condition the land was chiefly valuable for timber and would probably run 200,000 feet to the acre. The land would have to be cleared and then it might be cultivated, but it would all have to be cleared first. It was stipulated between the parties, on the trial, that certain papers named and on file in the office of the Commissioner of the General Land Office, and certain exhibits from the land office in Vancouver, in the State of Washington, relating to the proceedings in making the entry for the lands in question by the defendant’s grantors, might be regarded as in evidence in the case and be considered by the court, and the copies of such papers then presented to the court were admitted to be correct, full, true and complete transcripts of all proceedings of the land office at Vancouver, Washington, and of the eneral Land Office, Department of the Interior, Washington, • 0., touching . . . the timber land entry of Frank nntb, for the northeast quarter of section 32 (etc.), and also e timber land entry for the southeast quarter of section 32,” 6 i J^lese PaPers showed that the entrymen for the northeast an the southeast quarters were entitled to enter the lands un-er t e timber act, and that all the necessary facts required by e act and the Land Department officials had been proved by ern to entitle them to enter the specific lands. e finding of the court shows there has never been any dis-va efa/i^0 ac^ual condition of the land, but the entries were na°t 6 certificates cancelled because the Land De- ar ment held the land was not of the kind to be entered un 350 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. der the timber act of 1878, for the reason that, after the timber should be cleared, the land would be good agricultural land. JZ/’. Joseph Simon for plaintiffs in error. Mr. George C. Stout for defendant in error. Mr. John H. Mitchell and Mr. T. U. Ward were on the brief. Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. The decision of the Land Department as to the character of the land in question resulted from an erroneous construction of the timber act of June 3, 1878. There was no dispute as to the actual condition of the land, but the department held that land so situated could not be entered under the timber act. In this construction the department made a legal error. It has been held by this court that the act included lands covered with timber, but which might be made fit for cultivation by removing the timber and working the land. United States v. Budd, 144 U. S. 154. Mr. Justice Brewer, in delivering the opinion of the court in the above case, states as follows: “ Lands are not excluded by the scope of the act because in the future, by large expenditures of money and labor, they may be rendered suitable for cultivation? It is enough that at the time of the purchase they are not, in their then condition, fit therefor. The statute does not refer to the probabilities of the future, but to the facts of the present. Many rocky hill-slopes or stony fields in New England have been, by patient years of gathering up and removing the stones, made fair farming land; but surely no one before the commencement of these labors would have called them fit for c1“' tivation. We do not mean that the mere existence of timber on land brings it within the scope of the act. The significant word in the statute is ‘ chiefly.’ Trees growing on a tract may be so few in number or so small in size as to be easily clear off, or not seriously to affect its present and general fitness or THAYER r. SPRATT. 351 189 U. S. Opinion of the Court. cultivation. So, on the other hand, where a tract is mainly covered with a dense forest, there may be small openings scattered through it susceptible of cultivation. The chief value of the land must be its timber, and that timber must be so extensive and so dense as to render the tract as a whole, in its present state, substantially unfit for cultivation.” The lands in this case are within that description. The evidence shows that the timber was excellent, as good as any in that section of the country. It was as good as any ever examined by the witness, who had had large experience. In fact he said there was none better in that part of the country, and the quantity of the timber was large to the acre, but the land was not especially valuable for cultivation until it had been cleared. Even though the decision of the Land Department was erroneous, yet having been made, and the entries and certificates cancelled, although without notice to defendant, they could not thereafter be used even asprimafacie evidence of the validity of the original entries. It was perfectly easy to have given defendant notice of the proposed cancellation. He resided in Alpena, Michigan, and the deeds showed that fact, and the record shows the department was aware of their existence through the report of its special inspector. There is no hardship or inconvenience, therefore, in holding that, in a case, at least, where the residence is known, the transferee has the right to notice, f not known, a publication of notice ought at least to be made, t seems this is the practice of the Land Department. It has been held in this court, in Guaranty Savings Bank v. 176 U. S. 448, and Hawley v. Diller, 178 U. S. 476, 88, that a cancellation of a certificate of entry was not con-c usn e as against a transferee who had no notice and no oppor-umtj to be heard upon the question of the original validity of u e entry, but that it left the transferee without the right to use t e entry certificate vs, prima facie evidence of the validity t e entry or of his subsequent claim. The transferee is, how-oth ’ 611 tree Prove the validity of the entry by any means er than the certificate. Although the assignment or con-eyance of the certificates djd not transfer the legal title to the 352 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. lands described therein, yet the transferee or grantee thereby became possessed of an equitable interest in the lands which could not be taken from him without some notice. The character of the certificates as a mere means of evidence could be and was destroyed, but the transferee was nevertheless not thereby deprived of his right to show the validity of the former entry. In this case we think he has done so. He proved by his own evidence that he was a fide purchaser of the property for value paid to the entrymen, and that he had no agreement or understanding of any kind with them prior to the time that he purchased the land from them. We do not refer to the bona fide character of the purchase by defendant from the entry men for the purpose of thereby showing the defendant to be entitled to the benefit of that character under section 2 of the timber act of 1878. The reason that he is not so entitled is that by the assignment of the certificates he did not become clothed with the strict legal title to the land, but simply with an equity, and the act does not cover such a case. Hawley v. Diller^ 178 U. S. 476, 487. We refer to the bona fide character of the purchase by defendant, for the purpose only of showing it was without any prior agreement or understanding with the entrymen, and was not in violation of the provisions of the timber act. The stipulation between counsel that the papers on file in the Land Department might be regarded as in evidence and considered by the court, permitted the court to regard those papers as properly introduced in evidence and competent to be considered by it in the further consideration of the case. Those papers show a compliance on the part of the entrymen with all the provisions of the timber act and a valid entry under it in regard to the lands in question. As the entries had not been cancelled for any fraud in fact, but only upon an erroneous interpretation of the law by the department, the evidence of sue error being apparent on the trial, the defendant did all he was required to do in order to show the entries valid, and if the plaintiffs wished to show any fraud in fact, to overcome the case made by the defendant, they were called upon to do so, THAYER v. SPRATT. 353 189 U. S. Opinion of the Court. otherwise, the original proof being sufficient to warrant the issuing of the certificates, that proof would be regarded as sufficient on the trial of this suit. There is not a word of any proof showing any fraudulent act on the part of the entrymen or of their transferee, the defendant herein, and, on the contrary, there is proof of an absence of any fraud and the l)ona fide purpose on the part of the entrymen to properly avail themselves of the act of 1878. But however this may be, we are precluded by the finding of facts in the state court from looking at the evidence upon which such findings may rest. Upon a writ of error to a state court this court has no right to review its decision upon the ground that the finding was against evidence or the weight of evidence. Egan v. Hart, 165 U. S. 188 ; Gardner v. Bonestell, 180 U. S. 362, 370; Bement v. National Harrow Company, 186 U. S. 70, 83; Jenkins v. Neff, 186 U. S. 230, 235. By the findings in this case it appears that the entrymen at the time of making their entries were entitled to purchase the lands under the act of Congress of 1878, and that they duly made such application, duly verified by the oath of the applicants before the register of the land office, and that in the purchase of the land they7 fully complied with the law’s of the United States and the rules and regulations of the Land Department, and that all the requirements of the timber and stone act in regard to making a legal and valid entry and purchase thereunder were fully complied with by the entrymen, and that thereafter the applications were allowed and certificates duly issued as applied for, and the lands included in the entries were at all times chiefly valuable for the timber thereon and at that time unfit for cultivation. It was also found that the action of the land office in cancelling the timber entries was based upon a misconstruction of the act of 1878, and that the department, by reason of such misconstruction, erroneously held that land covered with a heavy growth of valuable timber, if it could be successfully cultivated after the timber wras removed, was not subject to entry as timber land under that act, although the timber on the land might be itself the chief element of the value vol. clxxxix—23 354 OCTOBER TERM, 1902. Statement of the Case. of the land, and the land could not be cultivated at all in its then condition. Upon these findings it is apparent that the defendant showed the validity of the entries by his grantors, and that their conveyances to him passed a good equitable title to the lands in question for which he was entitled to a patent from the United States, and that as such patent was granted to appellants, the defendant was entitled to the relief given him by the judgment. The judgment of the Supreme Court of the State of Washington is therefore Affirmed. TEXAS AND PACIFIC RAILWAY COMPANY v. CARLIN. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 222. Argued March. 20,1903.—Decided April 6, 1903. Where it is the special duty of the foreman of a gang repairing a bridge to see that the track is unobstructed when a train is about to cross, although it may be the duty of the men to keep their tools off the track, it is the foreman’s duty to supervise them, and if, through his negligence, the track is not left unobstructed and one of the gang is injured, such negligence under the statutes of Texas in that regard is that of a viceprincipal and not of a fellow-servant. Where the facts in the case are that the workman was injured by being hi by a spike maul which had been left on the track and which was struc and thrown by the engine, the fact that the foreman himself, who is o some extent an interested witness, testifies that he had looked aong the track and saw no obstruction, is not sufficient to take the ques ion of his negligence away from the jury. The plaintiff in error brings this case here to review the judgment of the United States Circuit Court of Appeals, or the Fifth Circuit, 111 Fed. Rep. 777, affirming the judgment in the Circuit Court for the Northern District of Texas, enter TEXAS & PACIFIC RY. CO. v. CARLIN. 355 189 U. S. Statement of the Case. upon the verdict of a jury in favor of defendant in error on the trial of this action brought by him against the railway company to recover damages for personal injuries. On the trial it appeared that Carlin, the plaintiff below, was in the employment of the railway company in September, 1898, as a bridge carpenter. On that day he, with a number of others forming what is termed the bridge gang, of which George Welsh was foreman, was employed in making some repairs on a bridge near the Aledo water tank, not far from Weatherford, Texas. The bridge was over a creek, and was sixty to sixty-five feet long. The force got to work on the bridge about ten minutes after 8 o’clock in the morning under Welsh, the foreman. The surface of the bridge was plain; the ties were about eight inches apart, and there was nothing on top of them except the rails and the guard-rails, the rails being of ordinary size, and the guard-rails about ten inches from the rails and parallel with them. The guard-rails were eight inches wide and stood four inches above the ties, being let down over the ties about two inches, and were of wood. Some time after the men had been working on the bridge a freight train was seen approaching at the rate of from thirty to forty miles an hour. Within a very few minutes before the train was seen one of the workmen on the bridge had in his hand what is called a spike maul, used for the purpose of driving spikes. The maul was of iron with a handle about three feet long, the hammer eing six, eight or perhaps ten inches in length, and the handle went into the middle of the head, which had a double face, arver was the man who was using the maul a few minutes efore the train came. The maul weighed about ten pounds, t the time Carver was using the maul, he had it out on the n ge with him. A witness for the defendant stated that he a been using the maul on the south side of the bridge for putting up the staging or scaffolding, and when he finished he it t t° sonie one on the top of the bridge, who handed o Carver on the north side of the bridge, to spike on a &race. It was used but ten or fifteen minutes before the pass-k§eb°a ^ra^n’ Carver stated he did not remember where a put the maul when he had finished using it, but he said 356 OCTOBER TERM, 1902. 189 U. S. Statement of the Case. he was always careful to put it out of the way so there would be no accident. He had nailed the last piece of timber on the bridge and got down on the ground and was about ten feet from the plaintiff, and had not been there over three or four minutes when the train passed. The witness saw no other spike maul or hammer there that morning than the one which he used, which was the regular spike maul described by the witness, and which he found after the train passed. The train coming from the west was seen some little distance before it reached the bridge and the people on the bridge got out of its way, and as the train passed over the bridge towards the east the plaintiff, who was standing a short distance from the east end of the bridge, was struck by the spike maul on the leg and was so badly injured that amputation of the leg above the knee was necessary and was performed. The train on its passage across the bridge struck the spike maul and threw it in the direction that the train was going with such force toward the plaintiff as to effect the injury mentioned, although the train was not seen to strike the maul nor was the maul seen to strike the plaintiff. All that is known is that the train passed the bridge, and as it passed the maul struck the plaintiff, and the handle was broken close up to the head. It was customary when workmen were engaged in repairing a bridge for the foreman to see that the bridge was cleared and unobstructed whenever a train was about to pass. It was the duty of the workmen to put their tools out of the way when a train was coming, but it was specially the duty of the foreman to see that the bridge was clear, and “ that was his business and that was what he was for.” Welsh, the foreman of the bridge gang, testified that he had no recollection of seeing any one using the spike maul that morning; that he had een around all parts of the bridge, both on top and underneath it, before the train had passed. He says when he saw the train coming he looked up and down the track to see if every t ring was clear, and did not see anything,and stepped onesided en the train was three or four hundred yards from him. He he had plenty of time if there had been anything on the to have taken it off; that when a man was using tools an o° TEXAS & PACIFIC RY. CO. v. CARLIN. 357 189 U. S. Statement of the Case. through with them he was supposed to take care of them and put them out of the way; that the foreman was liable to be anywhere about the bridge at any time, and could not be depended upon to be at any particular place, but if there were men working on top of the bridge it would be their duty to be on the lookout always, as they must expect a train at any time. He also said that he was foreman, and that as bridge foreman he had employed Carlin and had supervision over him, and had power to employ and discharge him as well as the other bridge men who were working there that morning. The evidence was not disputed that, although it was the business of each workman to see to it that his tools were not in the way of an approaching train, yet that it was particularly the duty of the foreman to see that the bridge was cleared from all obstacles when a train came. This is in substance the evidence submitted to the jury upon the question of the negligence of the defendant. The judge charged that the burden of proof was upon the plaintiff to show that the defendant was negligent and that the plaintiff was injured thereby; that the defendant was bound to exercise ordinary care to furnish a reasonably safe place within which employes could perform their duties; that the foreman of the bridge gang was, under the evidence, the vice-principal of the defendant company, and that the negligence of which the defendant was accused consisted in the failure on the part of the foreman of the bridge gang to use ordinary care o remove or to see and remove the spike maul before the arrival of the train at the bridge. The court also charged that, if the jury believed from the evidence that the spike maul was left on the bridge by a fellowservant of the plaintiff, and that, at the time the train approached, the foreman of the bridge gang was the only person upon the bridge, and that he could, by the exercise of ordinary care, have seen the spike maul and removed it from the track an rom proximity thereto, and if they believed it was on the .rac or within proximity thereto, and if the jury believed that was the duty of the foreman to use such care to see that the rac was clear and no obstructions on it, or so near to it as to 358 189 Ü. S. OCTOBER TERM, 1902. Opinion of the Court. be struck by a passing train, and if the jury believed that the foreman did not use that care, and that the spike maul was struck by the train and hurled against the plaintiff and caused the injuries, and if the jury believed it was the negligence of the foreman in failing to see and remove the spike maul, and if his negligence in that respect was the direct and proximate cause of the injuries sustained by the plaintiff, then the court charged that the plaintiff was entitled to recover, but that if the injury was caused by the negligence of a fellow-servant, and that the foreman in charge of the bridge gang was not guilty of negligence which directly and proximately contributed to the injury of the plaintiff, then the verdict should be for the defendant. The court further charged that the defendant should not be held responsible for the consequences of an act of negligence which could not reasonably be foreseen, and that it was not actionable negligence to fail to do an act when it would not have been anticipated by a man of ordinary care and prudence that such failure to perform the act would result in injury to any one. Various requests to charge were made by counsel for the defendant and refused by the court, not necessary to be here specifically mentioned. The jury, as stated, found a verdict for the plaintiff. Jfn David D. Duncan for plaintiff in error. Mr. John F. Dillon and Mr. Winslow 8. Pierce were on the brief. Mr. F. E. Albright for defendant in error. Mr. E. 0. Orrick and Mr. J. E. Terrell, Jr., were on the brief. Mk. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. Two grounds have been urged upon the court for reversing this judgment and granting a new trial. One was that e negligence of the railway company, if any, was that of a e low-servant, for which it was not liable; and (2) that t ere texas & Pacific by. co. v. ckkltr. 359 189 U. S. Opinion of the Court. was no evidence of the negligence of the foreman, in failing to discover the maul or hammer upon the bridge, sufficient to warrant the jury in finding a verdict for the plaintiff. The right to maintain this action is founded upon a statute of Texas, the material sections of which read as follows : “ Art. 4560^. All persons engaged in the service of any person, receiver, or corporation, controlling or operating a railroad or street railway the line of which shall be situated in whole or in part in this State, who are entrusted by such person, receiver, or corporation with the authority of superintendence, control or command of other servants or employés of such person, receiver, or corporation, or with the authority to direct any other employé in the performance of any duty of such employé, are vice-principals of such person, receiver, or corporation, and are not fellow-servants with their co-employés. “ Art. 4560À. All persons who are engaged in the common service of such person, receiver, or corporation, controlling or operating a railroad or street railway, and who while so employed are in the same grade of employment and are doing the same character of work or service and are working together at the same time and place and at the same piece of work and to a common purpose, are follow-servants with each other. Employés who do not come within the provisions of this article shall not be considered fellow-servants.” Sayles’ Civil Statutes of Texas, 1897. With reference to this statute, counsel for the defendant requested the court to charge the jury that— “Although Welsh, the bridge foreman, may have been, in law, the representative of the company, yet, if they find that the act of examining the track, as the train might be approaching, for the purpose of ascertaining whether or not any obstruction was upon or near it, was a duty that may be expected to be performed by any one of the men, irrespective of his grade or rank ; that is to say, by the foreman and men alike as occasion and circumstances may require ; then, in any such event, the act or duty of Welsh in this respect was one which existed between fellow-servants, and defendant would not be liable for the negligent acts of Welsh in this respect, if any there were.” 360 OCTOBER TERM. 1902. 189 U. S. Opinion of the Court. This charge was refused, and counsel for defendant excepted. The court did charge that the foreman of the bridge gang was, under the evidence, the vice-principal of the defendant company. This charge was duly excepted to by defendant’s counsel. Defendant contends that if the negligence which caused the accident was the failure of the foreman to see the maul or hammer upon the bridge and to remove it, it was not the failure to perform a duty peculiar to him, the foreman, and specially imposed upon him as such foreman within the meaning of article 4560^, because it was a duty resting equally upon all the jnembers of the bridge gang. The testimony in regard to this question leaves no doubt as to the duty of the foreman, although it also appeared that when a man was using tools and got through with them he was supposed to put them out of the way where a train would not strike them, and it was his business to do so. The evidence showed in addition that it was the special business of the foreman to see that the track wras unobstructed on the bridge when a train was about to cross, and that although the men were supposed to see that the track was clear, it was the foreman’s business to supervise them and see that the men left a clear track as the train came on. This was his duty as foreman, and not as follow-workman, and the duty of care on the part of the workmen under him to keep the tools off the track when the train came on the bridge in no degree lessened the duty of the foreman to see that the men under him did as they ought, and that a free and unobstructed track was left for the train. In other words, it was the special duty o the foreman, as such, to see that the men performed their duty. The negligent act of the foreman did not arise in the per formance of the duty of a mere servant, although each servant was under an obligation to be careful, but it was the negligent act of the vice-principal in the performance of his duty as sue As it was the special duty of the foreman to see that the men performed their duty, his neglect so to do was the neglect o a duty which he owed not as fellow-servant but as vice-principa within the statute above cited. Upon the second ground, we are of opinion that there was TEXAS & PACIFIC RY. CO. v. CARLIN. 361 189 U. S. Opinion of the Court. evidence sufficient to go to the jury upon the question of the negligence of the foreman in failing to discover the maul upon the bridge immediately prior to the passage of the train. The foreman himself swears that he did look along the track just prior to the coming of the train, and that he did not see any obstruction on the track and did not see the spike maul in question. Whether he looked or not is under the evidence one of the material facts in the case. He says that he did, but we are of opinion that other facts proved in the case were of such a character as to make it proper to submit the question to the jury. The foreman’s evidence was that of a somewhat interested witness. If the foreman did in fact neglect to perform his duty by looking over the track just prior to the coming of the train for the purpose of seeing that the bridge was clear of obstructions, it might be quite a serious matter for him in his future relations with the company. At any rate, no man is an absolutely disinterested witness where his testimony relates to the question of the performance or non-performance of a duty which he owed on account of the position which he occupied. It was, therefore, a question for the jury as to what measure of credence should be given to his testimony. Of course, the mere absence of evidence that the foreman did his duty would not be equivalent to evidence, direct or circumstantial, that he did not, and it rested with the plaintiff to show negligence of the foreman for which the defendant would be liable. ut there are certain facts proved in this case which we think ren ered it necessary to submit the question of negligence to e JuryJ notwithstanding the testimony of the foreman. We J^Ve here a bridge not more than sixty or sixty-five feet long anopen top bridge, the surface of which was plain. The n^th °r ra^S were the usual distance apart, and there was ing on top of them except the rails themselves. The andTrl 'Vere ^en hmhes from the track and parallel with it, th f St°otl ,UP ab°ut four inches above the ties. There was, of Th to obstruct or prevent the view of the length th r by any one at either end and nothing to prevent anvthSC°X ery maul the glance of the individual were . lng more than casual or formal. The maul could not 362 OCTOBER TERM, 1902. Opinion of the Court. 189 U. 8. have been hidden between the track and the guard-rails so as not to be above the track, for if the maul were lower than the track, the train could not have hit it, as it is perfectly clear that anything lower than the surface of the track could not be struck by the train. So it would seem quite obvious that if any one in the position of the foreman had looked, it would have been possible for him to have discovered this maul if it were there. Was it there? Workmen had been using the maul on the bridge during the morning and a few moments, not more than ten or fifteen minutes, prior to the crossing of the train. The maul was struck by it and hurled with great force, sufficient to break the handle, against the plaintiff, who was standing near the east end of the bridge. The man who was known to have used the maul a few minutes before the arrival of the train says himself that he has no recollection of what he did with it. Now, whether the maul were left exactly on the bridge, or just off the bridge, and so near the track as to be struck by the passing train, it is not necessary to determine, because if it had been left in a position just off the bridge, and yet so near the track as to be struck by the train, the failure of the foreman to see it and have it removed was the same as if it had been on the bridge. The maul being left so that it was struck by the train an hurled against the plaintiff, the failure of the foreman to see it might have been found by the jury to be a negligent failure, and it being his duty to see that the track was kept clear or the passage of trains, that failure was a neglect which was e proximate cause of the injury. To be sure, it wTas neg igence on the part of the servant who left the tool there in t e rs place, but after such negligence had occurred the duty o foreman arose, and he had plenty of time in which to per'0 it, to overlook the bridge where the track was and see t a was no obstruction for the passing train, and his failure o o or looking, to discover the obstruction, thus became t e im diate and proximate cause of the injury which followe . There is no other cause assignable for this injury t an . that the train did strike the maul, and that fact is prove the fact that it was thrown in the direction in whic e was going. Counsel for the defendant admits that t e evi THE CONEMAUGH. 363 189 U. S. Syllabus. shows that fact, but he avers that it does not appear that the maul was in such a position as to convict the foreman of negligence in not discovering it, and as to that fact counsel insists that the negligence of the foreman is disproved by the uncontradicted testimony. The facts already stated rendered it necessary, in our judgment, to submit the question to the jury as to the negligence of the foreman, even although he testified that he looked and did not discover any obstacle on the bridge. These two are the propositions particularly argued before us. We do not see in them any ground for disturbing the verdict of the jury. We have looked at the other exceptions taken in the course of the trial and are of opinion that they do not show any error requiring a reversal of the judgment, and it is, therefore, Affirmed. THE CONEMAUGH.1 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 97. Argued December 1,2,1902.—Decided March 9,1903. 1. In 1*75 U. S. 187, and 178 U. S. 317, this court held that the collision between the Conemaugh and the New York in the Detroit River was the fault of both vessels and judgment was given in favor of the Conemaugh for one half of her damages less one half of the damages of the New York, n this proceeding held, that the New York against which judgments had been entered for damages to the cargo on the Conemaugh could not in this action recoup or set off any part of such damages against, or shift any part of such judgment upon, the owners of the Conemaugh, even though it should result in the New York paying more than fifty per cent of the total loss. •The mandate having provided for interest at the same rate that decrees a* in the courts of the State of Michigan, there was no error in view ? the statutory provisions as to interest in Michigan, in computing the interest at seven per cent per annum. y Docket title Union Steamboat Company, claimant of the Propeller New ’ v. Erie and Western Transportation Company. 364 OCTOBER TERM, 1902. Statement of the Case. 189 U. 8. The facts of this case are fully set out in previous decisions of this court, The New York, 175 U. S. 187; Ex parte Union Steamboat Co., 178 U. S. 317. The steamer Conemaugh, owned by respondents, and the propeller New York, owned by the petitioner, collided in the Detroit River, November 11, 1891. The Conemaugh for herself, and as bailee of her cargo, filed a libel against the New York for the sum of $70,000 damages in the District Court for the Eastern District of Michigan. Subsequently certain underwriters of the cargo of the Conemaugh filed an intervening petition in the cause. Subsequently the owners of the New York filed a cross libel against the Conemaugh for $3000 damages sustained by the New York in the collision. No answer was filed to this cross libel. The District Court held the New York to have been solely in fault, and passed a decree against her. The Circuit Court of Appeals for the Sixth Circuit reversed, the decree of the District Court on the ground that the Conemaugh had been solely in fault, and adjudged that her owners pay the owners of the New York,'petitioners here, the damages sustained by the IS ew York. The case was then brought here by certiorari, and both vessels were pronounced to have been in fault. The decrees o the lower courts were reversed and the damages caused by the collision ordered to be divided. The following is the material part of the judgment and mandate : “ On consideration whereof, it is now ordered, adjudged an decreed by this court that the decree of the said United States Circuit Court of Appeals in the cause be and the same is here j reversed ; the claimant of the Conemaugh and the claimant o the New York each to pay one half of all costs in this cause. “And that the said Erie and Western Transportation om pany recover against the Union Steamboat Company $2 6,. for one half of the costs herein expended, and have execu io therefor. “ And it is further ordered that this cause be and t e J>a is hereby remanded to the District Court of the Unite for the Eastern District of Michigan, with direction to en decree in conformity with the opinion of this court, wi THE CONEMAUGH. 365 189 U. S. Statement of the Case. terest from July 3,1896, until paid, at the same rate per annum that decrees bear in the courts of the State of Michigan.” Upon the return of the case to the District Court that court made its decree in favor of the several intervening underwriters upon the cargo for their respective claims, with interest at seven per cent from July 3,1896. The court also decreed that the owners of the cargo and their underwriters, other than the intervenors, by reason of the collision, sustained damages in the sum of $19,627.67, “for which the said Erie and Western Transportation Company appears in this suit as trustee only.” And it was adjudged and decreed “ that said trustee recover from the said Union Steamboat Company and its surety, in trust, for the said owners of and underwriters on cargo, the aforesaid sum of $19,627.67, with interest thereon at the rate of seven per cent per annum, from July 3,1896, until paid, and that it have execution therefor.” Judgment was also given in favor of the Conemaugh for one half of the damages of that steamer, less one half of the damages of the New 1 ork, with interest. At the hearing in the District Court on the return of the mandate the petitioner “ submitted a decree to the effect that both vessels were in fault for the collision, and that the damages resulting therefrom be equally divided between the Erie and Western Transportation Company, owner of the Conemaugh, and the Union Steamboat Company, owner of the New ork; that such damages amounted in all to the sum of 4,319.49, of which certain intervening underwriters of the cargo were entitled to, and recovered from the steamboat com-Pany, $19,841.56; that the transportation company, as trustees or t e underwriters and owners of the cargo of the Conemaugh, th t ln^erven^nS) suffered damages in the sum of $19,627.67; 5 t\°Wner propeller, it had suffered damages in the m ot $30,508.46, aggregating the sum of $50,136.13 ; that the $50 colnPany recover of the petitioner one half of nJ I A3’leSS one half the sura of $19,841.56, decreed to be paid to the intervening petitioners, etc. to ne e however, declined to enter this decree; refused 1111 t e petitioner to recoup any sum that it might pay 366 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. to the owners or underwriters of the cargo of the Conemaugh, from any sum that was due from the steamboat company for damages sustained by the Conemaugh, so that such company was compelled to pay of the total damages about seventy-six per cent instead of fifty per cent.” 178 U. S. 317, 318. The action of the District Court was affirmed by the Circuit Court of Appeals, 108 Fed. Rep. 102, and the case was then brought here. Jfr. C. E. Kremer for petitioner. J/r. F. C. Harvey and Mr. W. O. Johnson were on the brief. Mr. Harvey D. Goulder for respondent. Mr. 8. H Holding and Mr. F. 8. Masten were on the brief. Mr. Wilkemus Mynderse for intervenors. Mr. F. H. Can-field was on the brief. Mr. Justice McKenna, after making the foregoing statement, delivered the opinion of the court. 1. One main and several subsidiary propositions are asserted by petitioner. The main proposition is that in all cases of collision, if both vessels are in fault, the damages resulting are to be equally divided between the owners of the vessels. The subsidiary propositions are that if one of the offending vessels pay more than half the damages to a third or innocent party she may recoup or set off such excess against any claim for damages which the other vessel may have without bringing in the other vessel as a co-defendant under admiralty rue 59, or filing other pleadings than an answer to the libel. 11 such case it is insisted that all the parties are before the cour . And further, that it is not necessary upon an appeal to the ir cuit Court of Appeals, or to this court, that the pleadings s ow a demand for recoupment—the hearing in both courts being a trial de novo. , The main proposition asserted may be conceded. It was e basis of our decision when the case was here on the first cer io- THE CONEMAUGH. 367 189 U. S. Opinion of the Court. rari and determined the judgment rendered. 175 U. S. 187. And if under some circumstances the other propositions could be applied, (which is not necessary to decide,) they cannot be under the circumstances of this case. The petitioner made no claim for a division of damages upon the original trial of the case. It asserted its own innocence and the entire guilt of the Conemaugh, and submitted that issue for judgment. It sought to escape all liability, not to divide liability, and on the issues hence arising judgments were entered against it, not only for the Conemaugh, but for the cargo owners, some having intervened, others still being represented by the Conemaugh. Petitioner maintained the same attitude in the Circuit Court of Appeals and in this court. After the decision in this court it changed its attitude, and for justification says it had no earlier opportunity to do so. It urges that the decision of the District Court was completely against it; the decision of the Circuit Court completely for it; and that the judgment from which its right of recoupment arose was rendered by this court. But the controversy as presented by the pleadings was not only between the Conemaugh and the New York, but between the latter and cargo, and this court did not disturb the judgment obtained by the cargo owners against the New York. Explaining our decision we said: “ The only questions decided were as to the respective faults of the two vessels, and the claim of the underwriters upon the Conemaugh’s cargo, that they were entitled to a recovery to the full amount of their damages against the New York, notwithstanding the Conemaugh was also in fault for the collision. This claim was sustained, and directions given to enter a decree in conformity to the opinion of this court.” The decree against it, the New York now seeks to shift in part to the owners of the Conemaugh. Indeed, not to shift it, hut virtually to vacate it and put the claims of the cargo owners into controversy with the Conemaugh. This, we think, should not be done. The cargo owners’ judgments were affirmed by t is court, as we have seen, and they are none the less entitled to them under the circumstances of this record, although as to some of them they were represented by the Conemaugh. The 368 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. New York, having been in fault, was responsible to the cargo, and if, as between her and the Conemaugh, she have a claim for recoupment, the way is open to recover it. We think that the District Court rightly construed our mandate. 2. Our mandate directed that a decree be entered “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.” The District Court and the Circuit Court of Appeals found the rate to be seven per cent. This is assigned as error. The statute which provided for interest on judgments and decrees in Michigan at seven per cent was enacted in 1838, and has been carried forward with amendments into the various compilations of the statutes, and appears as section 4865, Compiled Laws of Michigan of 1897. It is as follows: “ Interest may be allowed and received upon all judgments at law, for the recovery of any sums of money, and upon all decrees in chancery for the payment of any sums of money, w’hatever may be the form or cause of action or suit in which such judgment or decree shall be rendered or made; and such interest may be collected on execution, at the rate of seven per centum per annum: Provided, That on a judgment rendered on any written instrument, having a different rate, the interest shall be computed at the rate specified in such instrument, not exceeding ten per centum.” This section, it is insisted by appellants, was repealed by a statute passed in 1891, which statute was entitled “ An act to regulate the interest of money on account, interest on money judgments, verdicts, etc.,” and provided as follows: “Sec. 1. The People of the State of Michigan enact: That the interest of money shall be at the rate of six dollars upon one hundred dollars for a year, and at the same rate for a greater or less sum, and for a longer or shorter time, except that in a cases, it shall be lawful for the parties to stipulate in writing, for the payment of any rate of interest not exceeding eight per cent per annum: Provided, That this act shall not apply existing contracts whether the same be either due, not due, or part due.” THE CONEMAUGH. 369 189 U. S. Opinion of the Court. « Sec. 4. All acts or parts of acts contravening the provisions of this act are hereby repealed.” Subsequently the rate was reduced to five per cent by a statute passed May 25, 1899, which reads as follows: « Sec. 1. That section one of act number one hundred and fifty-six of the Public Acts of eighteen hundred and ninety-one, entitled ‘ An act to regulate the interest of money on account, interest on money, judgments, verdicts, etc., the same being compiler’s section one thousand five hundred ninety-four of volume three of Howell’s Annotated Statutes and section four thousand eight hundred fifty-six of the Compiled Laws of eighteen hundred ninety-seven, be and the same is hereby amended to read as follows : “ Section 1. The People of the State of Michigan enact: That the interest of money shall be at the rate of five dollars upon one hundred dollars for a year, and at the same rate for a greater or less sum, and for a longer or shorter time, except that in all cases it shall be lawful for the parties to stipulate in writing for the payment of any rate of interest, not exceeding seven per cent per annum: Provided^ That this act shall not apply to existing contracts, whether the same be either due, not due or part due.” According to its title the act is one to regulate the interest of money on account and interest on money judgments. Section one, however, provides only “ that the interest of money shall be at the rate of five dollars upon one hundred dollars for a year.” It is urged, however, that section one must take meaning from the title of the act, and that by “ interest of money” is meant “interest of money on account” and “interest on money judgments,” and having that meaning it repeals section 4865, supra. But money on account and money judgments are distinguished in the title, and it is hard to suppose that the former was intended to include the latter in the body of the act. They are distinguished also in the prior statutes. “ Interest of money ” was provided for in section 3 °f the act of 1838 in substantially the same language as in the acts of 1891 and 1899, and, it is certain, that it was not intended thereby to include interest on judgments and decrees. The vol. clxxxix—24 370 OCTOBER TERM, 1902. Argument for Petitioners. 189 U. S. latter were provided for in section eight of the act of 1838, which became section 4865, and as such has been given a place in the compiled laws of the State ever since. If it is anomalous, as urged by counsel and as observed by the Circuit Court of Appeals, for legal interest in the State to be fixed at five per cent, and judgments left to bear seven per cent, we cannot correct the anomaly. Nor can we regard the words “ interest of money ” to have been suddenly given a meaning in 1891 or 1899 different from that which they had borne for over fifty years in the statutes of the State with the intention to work by implication the repeal of a provision with which for the same length of time they were regarded as consistent. Decree affirmed. ZANE v. HAMILTON COUNTY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 115. Argued and submitted December 5, 1902.—Decided April 6,1903. Where the highest court of a State has decided that the act of the legislature under which bonds were issued by a county is unconstitutional an such decision is in conformity with the prior decisions of that court, the bonds, having been illegally issued, do not constitute a contract which is protected by the Constitution of the United States. The case is stated in the opinion of the court. Mr. George A. Sanders for petitioners. I. There was ample legislative authority for the issue of t e bonds and coupons in controversy, under the act of March 1 , 1869. The declaration avers the citizenship of the plaintiff as that of another State. Gives copy of one of the bonds an coupons, and avers the others are of similar tenor and e ec, states when, and for what purpose, the bonds were issued, ra e ZANE v. HAMILTON COUNTY. 371 189 U. S. Argument for Petitioners. of interest, and when and where payable. That they were made, executed and delivered by the duly authorized officials of the defendant county in part payment of a subscription for stock of the St. Louis & Southeastern Railway Company, to that company, or bearer, under and by virtue of the authority of a majority of all the legal voters in said county, by their votes at an election held in said county, pursuant to law, on the 3d day of November, 1868, and also by the authority given by the provisions of certain acts of the General Assembly of the State of Illinois. That they were issued in part payment of a subscription made by said county under and by virtue of the authority aforesaid to the capital stock of said St. Louis & Southeastern Railway Company, the whole subscription of the county being 8200,000. That the bonds were duly registered by the State Auditor November 1, 1871, under the act of April 16,1869. That the plaintiff purchased the bonds and coupons for an investment in the usual course of business for a good and valuable consideration somewhere on or about February 1,1874, and long before there was any default in the payment of the interest or principal of the bonds and without any notice whatever of any supposed want of legislative power, or irregularity in their issue. All these facts are admitted by the general demurrer, and the bonds and coupons must be held valid obligations of the defendant if there was legislative authority for their issue. There can be no doubt that there is ample legislative power in the act of incorporation of the St. Louis & Southeastern Railway Company for the issue of the bonds in question, and especially under section 20 in that act. This construction has been given to this act in a number of cases. II. The act of incorporation of March 10, 1869, was not in violation of the constitution of 1848. Counsel for the defendant strenuously insists that the act has been held in violation °f section 23, article 3, of the Illinois constitution of 1848, which provides that “ no private or local law which may be passed y the General Assembly shall embrace more than one subject and that shall be expressed in the title.” Constitution of Illi-n°is of 1848, section 23, article 3. See Revised Statutes of Illinois, Hurd, 1897, page 39. 372 OCTOBER TERM, 1902. Argument for Petitioners. 189 U. S. The first adjudication concerning this issue of bonds was in a chancery proceeding commenced by the county of Hamilton to restrain and enjoin the levy and collection of taxes to pay interest on these bonds. That case was removed to the Federal court of the Southern District of Illinois, and the bonds were held “ valid, legal and binding obligations of the said county.” This decree was never appealed from, reversed or in any manner set aside or annulled. Later, a decision in an ex parte proceeding (unknown bondholders being served only by newspaper publication) was rendered by the state Supreme Court in the case of The People v. Hamill, 134 Illinois, 666, holding this issue of $200,000 of bonds void for want of legislative power to issue them. That the act of March 10, 1869, was in violation of section 23, article 3 of the constitution of 1848, and therefore conferred no power for their issue; in 1896, the United States Circuit Court of Appeals rendered a decision in the case of A ustin v. Hamilton County, 22 C. C. A. 128; 79 Fed. Rep. 208, in which other bonds and coupons of this issue than those mentioned in the decree of June 5, 1881, were involved, affirming the decision of the court below on the ground that the plaintiff was not a bona fide holder of some of the bonds and coupons involved, having presumably purchased them after a knowledge of the decision of the state Supreme Court in the case of The People v. Hamill, 134 Illinois, 666. And see Franklin County v. German Savings Bank, 142 U. S. 99. The position of the counsel for the defence that the decision in the case of Bolles v. Hamilton County, 20 C. C. A. 401, is res adgudicata, as to the case at bar is untenable. See Woodbury v. City of Shawneetown, 20 C. C. A. 400 ; 74 Fed. Rep. 205. In these decisions the Appellate Court never passed upon t e only question presented under the demurrer in the case at ar, to wit, the constitutionality of the act of March 10,1869, save in the Austin v. Hamilton County case where it sustains decree of the Federal court below of June 5, 1881, when i says, this question equally with others “were determined J the decree.” III. Counsel for the defence insists that there was no aw ZANE v. HAMILTON COUNTY. 373 189 U. S. Argument for Petitioners. granting any power whatever to issue the bonds in controversy in existence when the vote was taken. There is now no question, under the decisions of the Federal courts but that the legislature had power to ratify, confirm and legalize the exercise of any power by public corporations, which it might have authorized in the first instance. Bolles v. Brimweld, 120 U. S. 759; Anderson v. Santa Anna, 116 IT. S. 364; Grenada County n. Brogden, 112 IT. S. 271. IV. The act of March 10,1869, incorporating the St. Louis & Southeastern Railway Company is not unconstitutional by reason of its title; nor is it a local or private act. Illinois Revised Statutes, Hurd’s 1897, article 3, section 23, page 39 ; Unity v. Burrage, 103 IT. S. 447, October term, 1880; Belleville dec. Railroad Company n. Gregory, 15 Illinois, 20; Fireman’s Benevolent Association v. Lounsbury, 21 Illinois, 511; Schuyler County v. People, 25 Illinois, 181; OP Leary v. County of Cook, 28 Illinois, 534; Erlinger v. Boneau, 51 Illinois, 95 ; People v. Brislin, 80 Illinois, 423; Binz n. Weber, 81 Illinois, 288. The act cannot, therefore, be held to be open to the constitutional objection, even under the state court decisions. San Antonio v. Mehaffy, 96 IT. S. 315 ; Jonesboro City n. Cairo <& St. Louis Railroad Co., 100 IT. S. 192; Johnson v. The People, 83 Illinois, 431; Mount Clai/r v. Bamsdell, 107 U. S. 147; Supervisor d ’ & & R' I?’ Illinois, 229; City of Ottawa v. ^ople, 48 Illinois, 223; City of Virden v. Allen, 107 Illinois, 506. Nor is the act of March 10, 1869, a local or private act. ection 21, of the act, Private Laws of Illinois, vol. 3, 1869, is as follows, to wit: “ This act shall be deemed a public act and shall be liberally construed for all purposes therein expressed an declared, and shall be in force from and after its passage.” ee Abbott’s Law Dictionary. Acts creating public corporations are public statutes. Ports-^outh Livery Company v. Watson, 10 Massachusetts, 9 ; Pol-v. McClurken, 42 Illinois, 37; Bumhaum v. Webster, 5 Massachusetts, 266. V. The decision of the state Supreme Court in People n. Ha-5134 Illinois, 666, is not conclusive, and is not the law of the 374 OCTOB EK TERM, 1902. Argument for Respondent. 189 U. S. land, nor of the State of Illinois. Both state and Federal courts were not in accord with it before, and are not since, it was rendered June 16, 1888, as will clearly appear by the above citations. The decisions of the state Supreme Court, as shown above, have been uniformly against the decision rendered in that case. Pana n. Bowler, 107 IT. S. 540; Butz v. City of Museatine, 8 Wall. 575 ; Burgess v. Seligman, 107 IT. S. 33. We admit the rule that no recital can supply the want of legal authority for the execution of the bonds, but insist that the act of March 10, 1869, gave plenary legislative authority for the issue of the bonds and was not repugnant to the constitution of 1848, and that the admitted facts averred in the declaration and the recitals on the bonds are sufficient in law for a l)ona fide holder of the bonds to recover judgment thereon. VI. The equities of this case are all with the plaintiff. It would seem an anomaly in jurisprudence for the courts to hold that a part of an issue of bonds issued at the same time and date, executed and delivered by the same officials, under the same statute, on the same vote, for the same purpose and of the same tenor and effect, should be held valid and a part void, for want of power to issue them. Jfr. J. M. Hamill for respondent. I. The bonds were void on their face. There was no authority of law for issuing these bonds and an examination of the acts referred to on the face of each bond supposed to confer authority will demonstrate that the bonds were issued without authority of law and are void. The Supreme Court of Illinois in The People exrel. Standefe v. Hamill, 134 Illinois, 670, 671, held section 20 of the act m corporating the St. Louis and Southeastern Railway Company to be in violation of article 3 of section 23 of the constitution of 1848, citing, Belleville &c. R. R. Co. v. Gregory, 15 Illinois, 20; City of Virden v. Allen, 107 Illinois, 505; Locl'p J Gaylord, 61 Illinois, 276; Middleport v. ¿Etna Life °' 82 Illinois, 562. „.n The act of April 16,1869, Public Laws of Illinois, 1869, p- ’ ZANE v. HAMILTON COUNTY. 375 189 U. S. Argument for Respondent. the only remaining act recited on the face of the bonds purporting to show authority for issuing them, grants no power or authority to issue bonds, but only provides when such bonds have been issued under authority of law how they shall be paid. It is contended that the recitals in the bonds estopped the defendant from denying their validity and it is claimed that on their face they import a compliance with the law under which they were issued. But counsel have failed to show that there was any law authorizing the issue of the bonds. This court has never intended to decide, and has never decided even where the rights of bona fide holders have been involved, that where the bonds have been issued without legislative authority they are valid and binding against the municipal corporation issuing them. Northern Bank of Toledo v. Porter Township, 110 U. S. 615. This court said in Cohens v. Virginia, 6 Wheat. 264, and in Carroll v. Lessee of Carroll, 16 How. 275, 287, that it was a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which they are used; and see Post v. Supervisors, 105 U.S. 668; Katzenberger v. Aberdeen, 121 IL S. 176; Dixon County v. Field, 111 U. S. 92; McClure v. Township of Oxford, 94 U. S. 432; Crow v. Oxford, 119 IL S. 221; Kelly v. Mil-lan, 127 U. S. 150. If it appears upon the face of the bonds sued on as in this case, that they were issued under a certain act mentioned in the onds and that act is void, the bonds themselves will be void. a^S/n. V' Dayton, 123 U. S. 59; Lippi/ncot v. Town of Pana, llinois, 34; Gaddis v. Richland County, 92 Illinois, 126; v. Town of Lacon, 84 Illinois, 464; Middleport^. ¿Etna Illinois, 564; Marshall v. Sillimon et al., ol Illinois, 223. An examination of every case cited by counsel for plaintiff in error will show that in each of these cases there was legislative u ority given to issue the bonds. These decisions, therefore, ney6 aPl)^ca^on facts in this case. The courts have w^ere i;liere was no legislative power given to w ll(f e ^on^s’ H16 corporation was estopped from denying an of authority. Recitals in bonds issued under legisla 376 OCTOBER TERM, 1902. Argument for Respondent. 189 U. S. tive authority may estop the municipality from disputing their authority as against a Vona fide holder for value, but when the municipal bonds are issued in violation of law, or a constitutional provision, no such estoppel can arise by reason of any recitals contained in the bonds. Lake County v. Rawlins, 130 U. S. 662; Lake County v. Graham, 130 U. S. 674; Sutliffy. Lake County Commissioners, 147 U. S. 230. This court has held that it will abandon its former decision construing a state statute if the state courts have subsequently given to it a different construction. Fairfield v. County of Gallatin, 100 U. S. 54, 55; Green v. NeaVs Lessee, 6 Pet. 291; Sudani v. Williamson, 24 How. 427. The decisions of the highest judicial tribunal of a State are entitled to great and ordinarily decisive weight. Rich v. Mentz Township, 134 U. S. 632; Merizvether v. Muhlenberg County Court, 120 U. S. 354 ; Claybourne County v. Brooks, 111 U. 8. 400, 410. When the construction of the constitution or the statute of a State has been fixed by an unbroken series of decisions of its highest court, the courts of the United States accept and apply it in cases before them. Township of Elmwood v. Mercy, 92 U. S. 289 ; Township of Oakland v. Skinner, 94 U. S. 255; Barnum v. Okolona, 148 U. S. 393; Burgess v. Seligman, 107 U. S. 33; Austin x. Hamilton County, 76 Fed. Rep. 208. II. Bonds issued in violation of constitution are void. Municipal bonds in Illinois, issued since the adoption of the constitution of 1870 as these bonds were, are prima facie invalid, and the burden of proof rests upon the plaintiff to show affirmatively that they were authorized under existing laws by a vote of the people prior to that time. McClure v. Township of Oxford, 94 U. S. 429 ; Buchanan v. Litchfield, 102 U. S. 278 ; German Savings Bank v. Franklin County, 128 U. S. 526; Jackson County v. Brush, 77 Illinois, 59. These bonds were issued in violation of separate section 2 o the constitution of 1870 which went into force July 2, 1870-It is well settled that all negative or prohibitory provisions even in a constitution execute themselves, making void all acts done in violation of such provisions, the same as if in violation ZANE v. HAMILTON COUNTY. 377 189 U. S. Argument for Respondent. of express statutory law. Law n. People, 87 Illinois, 385 ; Fuller v. City of Chicago, 89 Illinois, 282. The bonds on their face bear date October 23, 1871, and therefore every purchaser of them was bound to know that they were issued after the positive prohibition of the constitution had been adopted, preventing every municipality in the State from voting to become a subscriber to the capital stock of any railroad or private corporation. Concord v. Robinson, 121 U. S. 169. The courts concur with ‘ great unanimity in holding that there is no authority in municipal corporations to incur debts or borrow money in order to become subscribers to the capital stock of a railway corporation and that such power must be conferred by express grant. Dillon on Municipal Corporations, 4th ed. vol. 1, sec. 161 ; Kelly v. Milan, 127 IT. S. 139 ; Norton v. Dyersburg, 127 IT. S. 160 ; Wells v. Supervisors, 102 IT. S. 625 ; Lewis v. City of Shreveport, 108 U.. S. 282, 283. If the power to issue bonds in aid of a railway company does not exist, they are void into whosesoe ver’s hands they may come. Dillon on Municipal Corporations, 4th ed. vol. 1, sec. 163 ; Marsh v. Fulton County, 10 Wall. 676; Allen v. Louisia/na, 103 (T. S. 80. A municipality must have affirmative legislative authority to enable it to subscribe to the capital stock of a railroad corporation before its officers can bind the body politic to the payment of bonds purporting to be issued on that account, and 1 it has not such authority the bonds will be void into whosesoever s possession they may come. McClure v. Township of Ox-Frd, 94 IT. S. 432 ; Township of Fast Oakland v. Skinner, 94 . 8. 255 ; Town of Concord v. Portsmouth Savings Bank, 92 u. S. 625. t is claimed that by subsequent ratification the county may ma e legal and valid bonds that, when they "were issued, were ega and void. The legislature never made any attempt to had "5 con^rm or legalize these bonds. Even the legislature with n° POwer ratify and confirm bonds that were issued 1 out authority of law and in violation of the constitution. °n on Municipal Corporations, 4th ed. vol. 1, sec. 463. 378 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. Corporate ratification without authority from the legislature cannot make a municipal bond valid which was void when issued, for want of legislative power to make it. Lewis n. City of Shreveport, 108 ü. S. 282; Marsh v. Fulton County, 10 Wall. 676. The legislature itself cannot confer any power on the county to ratify bonds issued without authority of law and in plain violation of the constitutional prohibition. As no legislative authority or grant of power by the legislature to the county to enable it to subscribe to the capital stock of the railroad company, and issue bonds in payment of such subscription, is shown in the declaration, or on the face of the bonds, there was no power in the county to issue them, and the bonds having been issued after the constitution went into effect, and in plain violation of the constitutional prohibition, the bonds are absolutely void into whosesoever’s hands they may come, and as bonds that are void can create no liability against the county, the demurrer to the declaration was properly sustained. Me. Justice McKenna delivered the opinion of the court. This is an action brought in the United States Circuit Court for the Southern District of Illinois on five coupon bonds which were issued to the St. Louis and Southeastern Railway Com pany, under a statute of the State of Illinois. The petitioner alleges she is a hona fide purchaser of the bonds. A copy o the bonds is inserted in the margin.1 The following is a copy of the coupons attached to the bonds : 1 United States of America. M No. 88. Bond of Hamilton County. . .. Interest seven per cent. Payable semi-annu State of Illinois. . Know all men by these presents, that the county of Hamilton, State of Illinois, acknowledges itself indebted and firmly boun o Louis and Southeastern Railway Company, or bearer, in the su™ gujn thousand dollars, lawful money of the United States of America, w 1 said county for value received promises to pay the said company, ° ZANE v. HAMILTON COUNTY. 379 189 U. S. Opinior of the Court. “ $35.00. $35.00. McLeansboro, Hamilton County, Illinois. January 1, 1872. “ The county of Hamilton, in the State of Illinois, promises to pay the sum of thirty-five dollars on the first day of January, 1892, lawful money of the United States of America, being six months’ interest on bond No. 46 for one thousand dollars, issued on subscription to the St. Louis and Southeastern Railway Company. “Thiscoupon is payable in the city of New York. “ J. W. Marshall, Clerk.” in the city and State of New York, twenty years after date, payable at any time before this bond becomes due after five years at the pleasure of said county of Hamilton, with interest thereon from the date hereof at the rate of seven per cent per annum, payable semi-annually on the first days of January and July in each year, on the presentation and surrender, at the place in said city of New York, where the treasurer of the State of Illinois pays the interest and debt of said State, of the coupons hereto attached as they severally become due. This bond is one of two hundred of like tenor and amount, of same issue, and it is issued under and by virtue of the authority given by a majority of all the legal voters in said county, by their votes, at an election held in said county, pursuant to law, on the third day of November, A. D. 1868, and also by the authority given by the provisions of an act of the general assembly of the State of Illinois, in force March 10, A. D. 1869, entitled “ An act to incorporate the St. Louis and Southeastern Railway Company.” This bond is also issued under the provisions of an act of the general assembly of the State of Illinois, in force April 16, A. D. 1869, entitled An act to fund and provide for the payment of the railroad debts of counties, townships, cities and towns.” This bond is issued in part payment of a subscription made by said county under and by virtue of the authority aforesaid, to the capital stock of the • Louis and Southeastern Railway Company, in the sum of two hundred thousand dollars. In bond, court c eik of said court, in obedience to the order thereof, attesting the same an affixing hereto the seal of the said court, in open court. 0116 court house at McLeansboro, in said county, on this the dd day of October, Anno Domini 1871. t8EAL-] T. B. Steele, County Judge of Hamilton County, Hl. testimony whereof, the said county of Hamilton has executed this i by the county judge of said county under the order of the county of Said COUntv. sisminc his nams hp.rfit.n_ in nn«n nnnrt and hv thfi 380 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. The bonds were a part of an issue of two hundred of like tenor and amount, save as to dates of issue, registration and numbers. There was a general demurrer filed to the declaration, which was sustained, and the case was taken to the Circuit Court of Appeals for the Seventh Circuit. That court affirmed the judgment of the Circuit Court. 104 Fed. Rep. 63. The question presented is the validity of the statute of the State under which the bonds were issued. The Circuit Court of Appeals followed the case of The People ex ret. v. Hamill, 134 Illinois, 666, and (quoting from the case) held that the statute was invalid “ because section 20 of the act mentioned was void, as being in violation of the provision of the constitution of the State, that ‘ no private or local law . . . shall embrace more than one subject, and that shall be expressed in the title.’ ” It was alleged in the declaration and the bonds recited that they were issued under the provisions of an act of the general assembly of the State of Illinois, in force March 10,1869, entitled “ An act to incorporate the St. Louis and Southeastern Railway Company,” and also under the provisions of an act in force April 16$ 1869, entitled “ An act to fund and provide for paying the railroad debts of counties, townships, cities and towns.” The act of April 16,1869, was a mere registration act, and, it is conceded, conferred no authority to issue the bonds. Ample authority, however, it is insisted, was given by the act of March 10, 1869. Sections 15, 16 and 17 provided for the subscription by counties and cities and incorporated towns to the stock of the company, and the terms of issue and payment of the bonds, and sections 20 and 21 provide as follows: “ Seo. 20. And the said company may lease or purchase, upon such terms as may be agreed upon, any other railroad or parts of railroad, either wholly or partially constructed, which may constitute or be adopted as part of their main line; and by sue lease or purchase, they shall acquire and become vested wit all the rights and franchises pertaining to said road or part o road in the right of way, construction, maintenance and work ing thereof. And the county court of Gallatin County is hereby ZANE v. HAMILTON COUNTY. 381 189 U. S. Opinion of the Court. authorized and empowered to subscribe to the capital stock of this company the one hundred thousand dollars, or any part thereof, heretofore voted by a majority of the legal voters of said county to the Shawneetown branch of the Illinois Central Railroad Company. And the county court of Hamilton County is hereby authorized and empowered to subscribe to the capital stock of this company the two hundred thousanddollars, or any part thereof, heretofore voted by a majority of the legal voters of said county to the Shawneetown branch of the Illinois Central Railroad Company. And the county court of Jefferson County is hereby authorized and empowered to subscribe to the capital stock of this company the one hundred thousand dollars, or any part thereof, voted by a majority of the legal voters of said county to the Mount Vernon Railroad Company. And it shall not be necessary to submit the question of making the several subscriptions in this section mentioned to the vote of the legal voters of said respective counties: Provided,"That nothing herein shall be so construed as to prevent either of the counties mentioned in this section subscribing any other or larger amounts to the capital stock of this company than the amounts mentioned in this section. ‘ Sec. 21. This act shall be deemed a public act, and shall be liberally construed for all purposes therein expressed and declared, and shall be in force from and after its passage.” As we have seen, this act was declared by the Supreme Court of the State in The People ex rel. v. Hamill, 134 Illinois, 666, to be in violation of the constitution of the State, and that the bonds issued under it were void. This decision, plaintiff in error contends, is contrary to prior decisions interpreting the constitution of the State, and under the faith of which she purchased the bonds, and she insists that a contract hence arose w ich is protected by the Constitution of the United States. o support the contention a number of decisions are cited, but We o not consider it necessary to review them. The conclu-S10n of plaintiff in error is but a deduction from them, and we need only consider the more direct cases. th n J°hn8on v- People, 83 Illinois, 431, 436, it was decided at the provisions of the constitution, that “ no private or local 382 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. law . . . shall embrace more than one subject, and that shall be expressed in the title,” did not require that the subject of the bill should be specifically and exactly expressed in the title, and it was concluded that when the title calls attention to the subject of the bill, although in general terms, it fulfills the requirement of the constitution. In City of Ottawa v. The People ex rel., 48 Illinois, 233, it was held that the “ adjuncts to the subject are not required to be expressed, or the modus oper-andi.” In The Belleville <&c. Railroad Co. v. Gregory, 15 Illinois, 20, (1853) and Supervisors of Schuyler Co. v. People ex rel. R. 1. da AltonR. R. Co., (1860), 25 Illinois, 181, it was held that a subscription to the stock of a railroad company by a municipal corporation was so far germane to the incorporation of the railroad as not to require specific mention in the title of an act providing for the incorporation of such road. But whatever may be said of the reasoning of those cases, the contention of plaintiff in error goes beyond it. If an incorporation of a railroad and a subscription to its stock are parts of the same subject, the incorporation of one road and the transfer to it of the stock authorized to be taken in another road are certainly not parts of the same subject, more particularly when the subscription to t e stock of the latter depended upon and was based upon the vote of the people of the county. And this the Supreme Court decided in The People ex rel. v. Hamill, supra. It was also decide that the act of 1869 was not a private and local act. The court said: “ It is seen, the act of March 10, 1869, to which reference is made as giving the requisite authority to the county to su scribe for the stock and issue the bonds, is ‘ An act to ^nc^rP°" rate the St. Louis and Southeastern Railroad Company. a is all it purports to be by its title. The constitution of 1 > under which this act was passed, contained a restriction t a^ ‘ no private or local law which may be passed by the gener assembly shall embrace more than one subject, and that s be expressed in the title.’ This is a private or local act, a although the subscribing by counties, etc., to the capita s of the corporation thereby created, is germane to the o Je DETROIT &c. RY. v. OSBORN. 383 189 U.S. Syllabus. expressed in the title, Belleville &c. Railroad Co. v. Gregory, 15 Illinois, 20 ; City of Virden v. Allan, 107 Illinois, 505, the diversion to that corporation of a subscription theretofore authorized by a vote of the people to be made to a different corporation is a wholly different thing. That, it is to be presumed, affects, adversely, the corporation from which the subscription voted is to be diverted, and is, therefore, clearly not germane to the title of the act, and section 20 must therefore be held to have been inhibited by the constitution of 1848, and is for that reason void and of no effect. Lockport v. Gaylord, 61 Illinois, 276 ; Middleport v. Ætna Life Lnsurance Co., 82 Illinois, 562.” It was held in The Belleville <&c. Railroad Co. v. Gregory, supra, that the provision of the constitution of that State could not be evaded by declaring a private act to be a public one. From these views it follows that the bonds of plaintiff in error, having been illegally issued, do not constitute a contract which is protected by the Constitution of the United States. Judgment affirmed. DETROIT, FORT WAYNE AND BELLE ISLE RAILWAY v. OSBORN. ERROR to THE SUPREME COURT OF THE STATE OF MICHIGAN. Argued January 15, 1903.—Decided April 6,1903. ■ Where the plaintiff in error claimed and set up a right under the Constitution of the United States, and the decision of the Supreme Court of the late was tantamount to the denial of that right, there is a Federal 2 question and a motion to dismiss will be denied. nder the laws of the State of Michigan the commissioner of railroads as power to compel a street railroad to install safety appliances in ac-COr ance with law, the cost to be shared between it and a steam railroad ccupying the same street, notwithstanding that the steam road is the 3 The°r °CCUpi6r °nhe street- le is a difference between ordinary vehicles and electric cars which 384 OCTOBER TERM, 1902. 189 U.S. Statement of the Case. the State may, in the exercise of its police power, recognize without denying the company operating the electric cars the equal protection of the laws. Where the objection that a statute does not provide for notice is taken for the first time in this court, and the record shows that there actually was notice given, it is not open to the plaintiff in error to complain that the statute did not provide for such notice. This case involves the legality of an order of the commissioner of railroads of the State of Michigan requiring the plaintiff in error and the Union Terminal Association of Detroit, at their own cost and expense, to maintain and operate safety gates and derailing and signalling appliances at Clark avenue in said city. The order is inserted in the margin.1 1 State of Michigan, ) Office of the Commissioner of Railroads. J In re application of The Common Council of the city of Detroit for additional protection at the Clark avenue crossing of the tracks of the Union Terminal Association in the city of Detroit, county of Wayne, Michigan. Application having been received by the commissioner of railroads from the common council of the city of Detroit, Wayne County, Michigan, for additional protection at the Clark avenue crossing of the tracks of t e Union Terminal Association in said city of Detroit, Wayne County, Michigan; And after a personal inspection of the premises aforesaid, and after hearing representations of the city officials of the city of Detroit, as we as the arguments of the representatives of the said railroad company above named in relation thereto, and having decided after due deliberation t a the public interests required said additional protection at the said cioss- ing; , Now, therefore, by authority vested in me by law, it is hereby or ere That within sixty days from date hereof, you, the said Union Association Railway Company, cause to be constructed and there operated and maintained, safety gates, and derailing and signalling app^ ances to be operated day and night by a watchman from a tower, tower to be constructed at the best point of vision at the said mossing,^ so constructed that the said operator may have plain view of r0. of all trains or cars on both of the respective lines. Derailers sha e , vided and placed in the tracks of the Fort Wayne and Belle Is e 1 ® not less than seventy-five feet from clearance point of crossing, an shall be placed on the tracks of the Union Terminal Association tance of not less than 600 feet from said crossing. Said derai eis a nals to be operated by levers in said tower, and such levers to e P interlocked. DETROIT &c. RY. v. OSBORN. 385 189 U. S. Statement of the Case. The order was made and issued under act 171 of the Public Acts of the State of 1893, section 5 of which provides as follows : “ The commissioner of railroads shall, as soon as possible after the passage of this act, examine the crossings of the tracks of railroads and street railroads then existing, and order such changes made in the manner of such crossings, or such safeguards for protection against accidents to be provided thereat, as in his judgment ought to be so made or provided ; and shall apportion any expense incident thereto between the companies affected as he may deem just and reasonable.” The statute and order are attacked as depriving the plaintiff in error of its property without due process of law, because compliance with the order “ will involve the expenditure of a large sum of money ; first, in the construction of the said safety devices, and if the same are constructed, in the maintenance and repair thereof.” The plaintiff in error is a street railroad company incorporated under the laws of Michigan, and operates a railroad on certain streets of the city of Detroit, including Clark avenue. It succeeded in ownership and operation to a company known as the Fort Street and Elmwood Avenue Railway, which was also a street railway corporation. The latter company was authorized to construct its road on Clark avenue, and under its grant did construct and operate its road thereon. “At the time the track was constructed,” (we quote from the opinion of the Supreme Court of the State,) “ on Clark avenue there was no railroad, or highway, street, lane, or alley, or crossing of any kind, over Clark avenue between Fort street and the River And it is further ordered that cost and expense of the construction, maintenance and operation of said gates, tower and derailing and signalling appliance, shall be borne by the Union Terminal Association and the Fort ayne and Belle Isle Railway Company, equally, share and share alike. 18 appliance to be constructed in accordance with plans to be submitted and approved by the commissioner of railroads within thirty days from a e hereof, and such appliance to be further approved by the commissioner of railroads before being put into use. This order is subject to modification at any time when in the opinion of the commissioner of rail-ro 8 the public safety will be more effectually secured. VOL. CLXXXIX—25 386 189 U.S. OCTOBER TERM, 1902. Opinion of the Court. road. In 1882 or 1883 the Wabash railroad constructed a single track across Clark avenue and across petitioner’s tracks. Up to that time there had been no crossing over Clark avenue between Fort street and the River road of any kind, either that of a railroad, or a public highway, a private way, road, street, or alley. In the year 1893 or thereabouts the Union Station was opened at the corner of Third and Fort streets, in Detroit; and since that time said station has been used jointly by the Wabash, the Detroit, Lansing and Northern, the Flint and Pere Marquette, the Detroit and Lima Northern, and the Canadian Pacific railroads as a terminal point, the tracks over Clark avenue at this point having been increased from one to three to accommodate the increased traffic. These tracks are used as approaches to the Union Station, and incoming and outgoing trains and cars of all the foregoing roads, except the Canadian Pacific Railroad, pass over said tracks. There are thirty-eight regular daily passenger trains crossing Clark avenue upon these tracks. Besides this, the Canadian Pacific uses the station as an eastern terminus, connecting with the other roads for purposes of through east and west traffic.” In 1893, the legislature of the State passed the act hereinbefore set out, and under its authority the defendant in error made the order complained of. The case was submitted upon the petition of relator (plaintiff in error), and the answer of respondent (defendant in error), and the mandamus prayed for denied. 127 Michigan, 219. This writ of error was then sued out. J/z. John (J. Donnelly for plaintiff in error. Mr. Michael Drennan was on the brief. Mr. Fred A. Maynard for defendant in error. Mr. Horace M. Oren, attorney general of the State of Michigan, was on the brief. Mr. Justice McKenna, after making the foregoing statement, delivered the opinion of the court. 1. A motion is made to dismiss the writ of error on t e DETROIT &c. RY. v. OSBORN. 387 189 U. S. Opinion of the Court. ground that the record exhibits no Federal question. The motion is denied. The plaintiff claimed and set up a right under the Constitution of the United States, and the decision of the Supreme Court of the State was tantamount to the denial of that right. Kaukauna Co. v. Green Bay <&c. Canal Co., 142 U. S. 254. 2. The argument of plaintiff in error on the merits is that it was the first to occupy Clark avenue ; that at that time there was no public highway or street crossing at such avenue; that subsequently the steam railroads laid their tracks, the Wabash Railway Company being the first to do so, but installed no safety devices of any kind, “ though it were the junior company ; ” that the tracks on the other railroads were subsequently constructed and are controlled by the Union Terminal Company. It is hence asserted that the plaintiff in error cannot be made liable for any part of the cost of safety devices, because it is the settled constitutional law of Michigan that its occupation constituted no additional burden upon the highway, but is simply a method of using the highway for the purpose of public travel and “ in direct furtherance of the purpose for which the highway was established, that the street railroad company in contemplation of the law bears no different relation to the highway than that of any other person using the highway for the moving of vehicles or for any other method of public or private ravel, and cannot, as between others using the highway for ike purposes, be required alone to bear the expense of installing and maintaining safety devices at steam railroad crossings esigned for the protection of all the traveling public.” nd further, it is also a well established principle of the con-s itutional law of Michigan, that a junior road seeking to cross another cannot shift any portion of the expense of maintaining sa e y devices without compensation, though the senior company did not insist upon the installation of the devices or compensation at the time the tracks of the junior company were instructed. In other words, it is asserted that the dangerous o Q arose and yet arises from the steam railroads, and posed6111 a^°ne can cos^ safGtF devices be legally im- 388 * OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. 3. It is also insisted that the law is unconstitutional because it does not provide for notice. (1) It was conceded by the Supreme Court of the State that it was the law of the State that the compensation for the damages caused by crossing the tracks of a railroad by another railroad or by a highway included the cost of making the highway safe. But the court said : “ An examination of these cases will show they were all cases where it was sought to obtain a right of way either for a railroad across a highway, or for a highway across a railroad, or a crossing for one railroad over the right of way of another ; and none of the cases relate to the question involved here, as to who shall bear the expense of additional safeguards ordered upon roads which have crossed each other for a long period of time.” And besides this element of time, the court said that there were other elements of damage which were either too remote or depended upon the relation of the roads to the State. Both elements are important. The conditions which exist to-day could not have been contemplated years ago, or be the measure of the rights and relations of the respective roads. Those rights and relations were necessarily determined at the time the crossings were made. What could not be foreseen could not have been made a ground of action, and if the growtn o business and population can give rights to either of the bisecting roads it is not clear how the police power of the State can be limited in its control over either of them. The Supreme Court of the State recognized this and fortified its views y Michigan cases. In The Flint & Pere Marquette R. R. Co. v. Detroit & Bay City R. R. Co., 64 Michigan, 350, the court in an elaborate opin I ion expressed the rules of compensation when the right o one road to cross the tracks of another was sought by condemn^ tion proceedings. In that case compensation was claime n only for the use of the crossing, but for the cost of main am ing signals or a crossing system, cost of a watchman, an c stopping trains. These items were rejected. There was uncertainty in the evidence, and the items for maintaining^ nais or the crossing system were disallowed on that gr0 > DETROIT &c. R Y. v. OSBORN. 389 . 189 U. S. Opinion of the Court. but the court pointed out the difference between a “ structural change in the property” for which compensation should be given, and those things which may be required by the legislature in the exercise bf police regulations, as to which the roads “stand upon an equality before the law, and neither can levy tribute upon the other as a compensation for obedi-dience to its requirements.” And such regulations, it was observed, “ are as binding upon an existing road as one newly organized.” The court cited the case of Mass. Cent. R. R. Co. v. Boston, C. (& F. R. R. Co., 121 Massachusetts, 124, where Mr. Justice Gray, then Chief Justice of the Supreme Judicial Court of Massachusetts, expressed the law as follows : “ A railroad corporation, across whose road another railroad or a highway is laid out, has the like right as all individuals or bodies politic and corporate, owning land or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures upon the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. Commonwealth v. Boston M. R. R. Co., 3 Cush. 25, 53 ; Old Colony Railroad Co. v. Plymouth, 14 Gray, 155 ; Gra/nd Junction Railroad Co. v. County Commis-*WM,rs of Middlesex, 14 Gray, 553. But it is not entitled to damages for the interruption and inconvenience occasioned to its business, nor for the increased liability to damages from accidents, nor for increased expense for ringing the bell, nor for the risk of being ordered by the county commissioners, when ln their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing its railroad. Proprietors of Locks and Ca/nals v. Nashua L. R. R. Co., 10 Cush. 385, 392 ; Boston W. Bdilroad Co. v. Old Colony Railroad Co., 12 Cush. 605, 611 ; C., 3 Allen, 142, 146 ; Old Colony Railroad Co. v. Plymouth, U Gray, 155.” t is however contended that a street railway has a different ation to a street than that which a steam railroad has ; that e ormer “ acquires a right to use the same in common with 390 OCTOBER TERM, 1902. Opinion of the Court. 189 U. 8. other members of the traveling public, and is not an additional burden upon the street, but is merely an adaptation of the highway to a particular means of travel, and does not constitute an additional servitude. A railroad is, on the other hand, an additional servitude, and if it is built across a highway, it must do all things necessary to render the highway, for all its legitimate uses, as safe as it was before the railroad was built across it, or would be, if such railroad were not built across it at all.” It may be that this difference is recognized as to abutting property owners or crossing railroads, but it cannot be recognized as limiting or affecting the power of the State to regulate the management of the roads in view of the danger of their operation to the public. Whether electricity be the motive power or steam be the motive power there is enough danger in the operation of either to justify regulation. The record in this case shows that there are thirty-eight daily passenger trains crossing Clark avenue, and that the cars of the plaintiff in error pass every few minutes. It is manifest, as the Supreme Court of the State observed, that the crossing “ is a place of unusual danger, not only to the passengers in the steam cars, but also to the passengers in the electric cars,” and that the danger is caused by both. In such situation the city is surely not powerless to act, nor before acting must it ascertain the exact quantum of damage caused by each road, and by that standard assign the cost of protecting the public. See R^ road Co. v. Street Ry. Co., 89 Maine, 328. It is also objected to the order that it deprives plaintiff in error of the equal protection of the laws. The argument to support this contention is an extension of that which claims that the use of the street by the plaintiff in error “ is mere y an adaptation of the high way to the particular means of trave. And it is deduced that an electric street railway has an equa ity of rights with ordinary vehicles. That we think there.is a difference between ordinary vehicles and cars propelle J electricity, which may be recognized by the State in the exercis of its police power, we have sufficiently indicated. (2) The objection that the statute does not provide for no ice UNITED STATES v. MISSION ROCK CO. 391 189 U. S. Syllabus. seems to be made for the first time in this court. It is not mentioned in the majority opinion nor in the dissenting opinion. It is not particularized in the petition for the writ of error nor in the assignment of errors. In the petition for this writ of error it is recited that the plaintiff in error in its application for mandamus claimed that the order of the railroad commissioners was invalid because it deprived plaintiff in error of its property without due process of law and denied it the equal protection of the laws. And also recited that on the “ issue framed therein said cause went to a final hearing.” The cause was submitted on petition and answer, and the petition alleged ‘that notice was given by respondent to relator and the Union Terminal Association, and the hearing had, at which relator’s representative objected to the making of said order.” It is therefore not open to the plaintiff in error to complain that the statute does not provide for notice. Judgment affirmed. UNITED STATES v. MISSION ROCK COMPANY. error to the circuit court of appeals for the ninth circuit. No. 198. Argued March 11,1903.—Decided April 13,1903. Pro t California upon its admission into the Union acquired absolute p operty in and dominion and sovereignty over, all soils under the tide-title^8 WlthiQ her with the consequent right to dispose of the subieM- °f said soils in such manner as she might deem proper, such n ° v pararnount right of navigation over the waters, so far as foreiffn V'Sr 10n might be re so that the latter can maintain ejectment for the rock. . Ejectment cannot possibly lie to recover lands, the ti e which has been conveyed by the plaintiff subject to an excep tion which is undefined in the grant. The exception was vol UNITED STATES y. MISSION ROCK CO. 403 189 U. S. Opinion of the Court. for uncertainty. Brown v. Allen, 43 Maine, 590; Mooney n. Cooledge, 30 Arkansas, 640; Darling v. Crowell, 6 K. H. 421; Andrews v. Todd, 50 N. H. 565; Waugh v. Richardson, 30 N. C. 470; S. C., 8 Iredell, 470 ; Benny. Hatcher, 81 Virginia, 25 ; Butcher v. CreeTs Heirs, 9 Gratt. 201; Shoenberger v. Lyon, 7 W. & S. 184; Stambaugh v. Hollabaugh, 10 S. & R. 357. We have not entered into a discussion of littoral rights or those of accretion. These are clearly inapplicable, whatever the law may \)Q, first, because the defendant in error is the undoubted owner of the lands surrounding the rocks upon which its predecessor created the area of land now above tidewater, which area is termed “ accretions” by the government’s counsel ; second, because the President has not set apart the “ accretions ” by his order, but only the land containing fourteen one hundredths of an acre known as “ Mission Island ” and the “ small island northeast thereof,” which contains one one hundredth of an acre. Me. Justice McKenna, after stating the case, delivered the opinion of the court. “ It will be observed,” as was said by the Circuit Court of Appeals, “that the judgment of the Circuit Court was not limited to the two rocks or islands embraced in the executive order of January 13, 1899, the one covering fourteen one hun-redths and the other one one hundredth of an acre, but awarded t e government the entire tract of fourteen and sixty-nine one undredths acres, including the warehouses and other improve-nients, constructed by the defendant and its predecessors in in-res^ J he Circuit Court of Appeals confined the recovery ? t ie plaintiff to the rocks proper and awarded the submerged an s to the defendant. The controversy then is, which party as t e title to the latter. The defendant in error is the suc-essor of the rights and title of the California Dry Dock Company, that company being grantee of Henry B. Tichenor, who from^H Patent f°r the lands on Uth of July, 1872, it" ' California, in pursuance of and in conform- y wit an act of the legislature of the State, entitled “ An act 404 OCTOBER TERM, 1902. 189 U.S. Opinion of the Court. to provide for the sale and conveyance of certain submerged lands in the city and county of San Francisco to Henry B. Tich-enor.” Stat. California, 1869-70, p. 801. Had the State the title to convey ? The plaintiff in error, in effect, contests this, and asserts besides a right to the submerged land as an easement appurtenant to the islands. The title and dominion which a State acquires to lands under tidewaters by virtue of her sovereignty received elaborate consideration, exposition and illustration in the case of Shively v. Bowlby^ 152 U. S. 1-58. Prior cases are there collected and quoted, among others, Weber v. Commissioners, 18 Wall. 57, 65. From the latter as follows (and the case concerned tide lands in California): “ Although the title to the soil under the tidewaters of the bay was acquired by the United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future State. Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States, the regulation of which was vested in the general government.” And Mr. Justice Gray said, delivering the opinion of the court in Shively n. Bowl y> “ Each State has dealt with the lands under the tidewaters within its borders according to its own views of justice an policy, reserving its own control over such lands, or gran mg rights therein to individuals or corporations, whether owners of the adjoining upland or not, as it considered for the best in terests of the public.” This right is an attribute of the sovereignty of the a ’ and it follows that in the exercise of the right, as said y Justice Gray, the State may “dispose of its tide lan from any easement of the upland proprietor.” The facts o case emphasized its doctrine, Shively was the owner UNITED STATES v. MISSION ROCK CO. 405 189 U. S. Opinion of the Court. the upland. Bowlby was the grantee of the State of Oregon of the tide lands in front of Shively’s property. The grant was sustained. The sovereignty of California and the rights and powers dependent upon it are as complete as those of other States. How has California chosen to exercise them ? In other words, what is the law of California as to the title and rights of riparian or littoral proprietors in the soil below high water mark? Upon the answer to these question the present litigation must be determined. The title papers of the defendant contain an act of the legislature of the State conveying the lands in controversy in private ownership, and the history of the State shows that the act was in accordance with the policy and practice of the State. The legislature, commencing at the first session after the admission of the State into the Union, made grants of the tide lands to municipalities under conditions which contemplated their being conveyed to and held in private ownership. Among these was the act of March 26, 1851, known as the “Beach and Water Lot Act.” It was entitled “ An act to provide for the disposition of certain property of the State of California.” Section 1 provided that “ all the lots of land situated within the following boundaries according to the survey of the city of San Francisco, and the map or plat of the same now on record in the office of the recorder of the county of San Francisco, are known and designated in this act as the San Francisco each and Water Lots; that is to say, beginning at the point,” etc. Then follows a description by streets, which includes a portion of the bay. Section 2 grants the use and occupation ° f°F ninety-nine years and confirms grants of lands 80 by authority of the ayuntamiento, or town or city council, or y any alcalde of said town or city; and section 4 makes the oundary line described in the first section a permanent water ront of the city. These acts came up for consideration, and e c aracter of the title conveyed was defined in Smith n. ov'8e} 2 California, 524; Eldridge v. Cowell^ 4 California, 80, 87; f pin Bourne, 8 California, 294; Hyman v. Read, 13 Cali-ornia, 445; Holladay v. Frisbie, 15 California, 630, 635; 406 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. Wheeler n. Miller, 16 California, 125 ; City and County of Sm Francisco v. Straut, 84 California, 124. These cases all expressed under varying facts the validity of the title conveyed by the acts of the legislature. They are reviewed in Pacific Gas Imp. Co. n. Ellert, 64 Fed. Rep. 421. In Taylor v. Underhill, 40 California, 473, Mr. Justice Temple said, speaking of lands below high water mark: “ The State can probably sell the land and authorize the purchaser to extend the water front so as to enable him to build upon this land. . . . ” The decisions cover a period of many years and have become a rule of property and the foundation of many titles. As said by Circuit Judge Ross, delivering the opinion of the Circuit Court of Appeals: “ A large and valuable part of the city of San Francisco, extending from the present water front to, in some places, Montgomery street, was at the time of and subsequent to the admission of California into the Union a part of the submerged lands of the bay, but has since been filled in by many hundred grantors under the city and State, who have erected buildings and improvements thereon at costs running into many millions of dollars. All of this was done in aid of commerce, in the upbuilding of a great city upon the bay, and with the encouragement and consent of the general government. There is nothing inconsistent with these views in Shirley Bishop, 67 California, 545 ; People v. Gold Run Ditch and Mining Co., 66 California, 138,151; or in Heckmans. Swett, 99 California, 303. In Shirley v. Bishop there was no question of riparian rights. The defendants attempted, under a franchise from the city of Benicia, to erect a wharf within three feet of the plaintiff’s wharf, and parallel to it for sixty feet in the navigable waters of the straits of Carquinez, and beyond the water front, established by an act of the legislature of the State. The bui ing of the wharf was restrained. The other two cases express the general doctrine that the title of the State to the landsicov ered by navigable waters is held in trust for the public, doctrine is declared in all of the cases. It has a conspicuous illustration in the Lake Front Case, {Illinois Central Railro v. Illinois,} 146 U. S. 387, 463. The doctrine and its limitations UNITED STATES v. MISSION ROCK CO. 407 189 Ü. S. Opinion of the Court. are expressed in Heckmam, v. Swett, 99 California, 309, and in Shively v. Bowlby. The court said in Heckman v. Swett: “ Navigable streams and the shores to ordinary high water mark are held by the State in trust for the public; but qualified rights therein may be granted, so far as they are not inconsistent with, or are in aid of the principal use, viz., for the purposes of navigation.” In other words, the rights granted must be in aid of commerce ; and it is recognized, as we have seen, in judicial decisions and established by practical examples that the conveyance by the State of its title to tide lands to be held in private ownership free from any easement of the upland proprietor, is in aid of commerce, and therefore in strict performance of the State’s trust. See, in addition to the other cases, Oakland v. Oakland Water Front Co., 118 California, 160. 2. A claim was made in the Circuit Court of Appeals by the plaintiff in error under section 5 of the act of Congress of July 1,1864, entitled “An act to expedite the settlement of titles to lands in the State of California.” 13 Stat. 333. By that section the title of the United States to the lands within the corporate limits of the city of San Francisco was relinquished and granted to the city “ for the uses and purposes ” specified in a certain ordinance of the city called the Van Ness ordinance, which ordinance had been ratified by the legisla-ure of the State. Answering and disposing of the contention of the plaintiff in error, the Circuit Court of Appeals said: Those uses and purposes . . . had no relation whatever to t e rocks or islands here in controversy, which were and are ar outside of the pueblo grant of lands claimed by and con-rm e« ^ie ^y*” This is not contested here, but it is urged at the order of President McKinley may be read, not as a reservation under that act, but as an appropriation of Mission s and and the small island southeast thereof, with the shores, contiguous submerged land, and navigable water appurtenant ereto, permanently for naval purposes.” There are two answers to the contention. The order of the President explicitly esignates the islands proper, and besides limits the areas ap-opnated to “fourteen one hundredths of an acre and one one redth of an acre respectively.” At the time the order 4Ó8 OCTOBER TE KM, 1902. 189 Ü. S. Statement of the Case. was made the land in controversy had been reclaimed by the California Dry Dock Company, and upon it were “ extensive warehouses,” which had been built by that company, “and wharves erected for the accommodation of shipping.” The property was so valuable that the plaintiff in error regarded itself damaged by its withholding in the sum of $250,000, and the rental thereof was alleged to be $5000 per annum. It is not conceivable that the President, by his order, intended to appropriate so valuable a property without explicit declaration, or to leave the appropriation to result as “ appurtenant ” to the rocks. Judgment affirmed. CHATTANOOGA NATIONAL BUILDING AND LOAN ASSOCIATION v. DENSON. CERTIORARI TO THE CIRCUIT COURT OK APPEALS FOR THE FIFTH CIRCUIT. No. 206. Submitted March 12,1903.—Decided April 27, 1903. The highest court of Alabama has held that under the constitutional and statutory provisions of that State any act in the exercise of its corporate functions is forbidden to a foreign corporation which has not complie with the constitution and the statute in regard to filing instrument designating agent and place of business, and that contracts resulting from such acts are illegal and cannot be enforced in the courts. Held, that this applied to a building and loan association of Tennessee making a loan in Tennessee secured by certain shares of its own so and also by mortgage on certain real estate in Alabama, and that alt oug the association had complied with certain provisions of the law, t e ac^ that it had not designated an agent as required by the constitution an statutes was a bar to the foreclosure of the mortgage in the cour s o Alabama. Suit to foreclose a mortgage given by the respondents to the petitioner to secure a note for the sum of $5000, given as evi dence of a loan made by petitioner to respondents. T e pe titioner is a building and loan association, and a corporation the State of Tennessee; the respondents are citizens o CHATTANOOGA BUILDING &c. ASSN. v. DENSON. 409 189 U. S. Statement of the Case. bama. One of the defences of respondents is that the transactions were illegal because petitioner had not complied with the laws of Alabama in regard to foreign corporations doing business in the State. This is the only defence with which we are concerned. The Circuit Court rendered a decree foreclosing the mortgage, which was reversed by the Circuit Court of Appeals, and the bill was directed to be dismissed. 107 Fed. Rep. 777. The case was then brought here by certiorari. The constitution of the State of Alabama provides as follows : “ 4. No foreign corporation shall do any business in this State without having at least one known place of business and an authorized agent or agents therein ; and such corporation may be sued in any county where it does business by service of process upon an agent anywhere in this State.” Constitution Alabama, Art. XIV. The material parts of the Code of the State passed in execution of the constitution are as follows: “1316. Foreign corporation must file instrument of writing designating agent and place of business in this State.—Every corporation not organized under the laws of this State shall, before engaging in or transacting any business in this State, file an instrument of writing, under the seal of the corporation and signed officially by the president and secretary thereof, designating at least one known place of business in this State and an authorized agent or agents residing thereat ; and when any such corporation shall abandon or change its place of busmess as designated in such instrument, or shall substitute another agent or agents for the agent or agents designated in such instrument of writing, such corporation shall file a new instrument of writing as herein provided, before transacting any further business in this State.” Code Alabama, 1896. 1318. Unlawful for foreign corporation to transact business m this State before declaration filed ; penalty.—It is unlawful for any foreign corporation to engage in or transact any busi-ess in this State before filing the written instrument provided or in the two preceding sections ; and any such corporation t at engages in or transacts any business in this State without complying with the provisions of the two'preceding sections 410 OCTOBER TERM, 1902. 189 U. S. Statement of the Case. shall, for each offence, forfeit and pay to the State the sum of one thousand dollars. “ 1319. Unlawful to act as agent of foreign corporation before such declaration is filed ; penalty.—It is unlawful for any person to act as agent or transact, any business, directly or indirectly, in this State, for or on behalf of any foreign corporation which has not designated a known place of business in this State and an authorized agent or agents residing thereat, as required in this article ; and any person so doing shall, for each offence, forfeit and pay to the State the sum of five hundred dollars.” Code Alabama, 1896. There was no point made on the by-laws of the association, and by agreement they were omitted from the record on appeal to the Circuit Court of Appeals and are also omitted here. And it was also stipulated “ that the complainant is a corporation chartered and organized under and in accordance with the public statutes of the State of Tennessee, authorizing the creation of corporations for carrying on the business of building and loan associations ; that its principal office and place of business is, and was at the time the loan involved in this case was made, and has ever since continuously been, in the city of Chattanooga, State of Tennessee ; and that the loan to defendant, William H. Denson, involved in this case was made in accordance with the power and authority conferred on complainant by its charter, and in the manner prescribed by its by-laws.” The note executed by respondents was as follows : “ $5000.00. Chattanooga, Tennessee, June 10, 1895. “ On or before nine years from date I promise to pay the Chattanooga National Building and Loan Association, at its home office, Chattanooga, Tennessee, five thousand dollars with interest on the sum of twenty-five hundred dollars, at the rate of six per cent per annum, payable monthly. 5|S***HS*** “ It is further understood that this note is made with reference to and under the laws of the State of Tennessee, and i paid before seven years from this date such rebate from the pre mium included herein will be allowed as the board of directors of said association shall deem equitable.” CHATTANOOGA BUILDING &c. ASSN. v. DENSON. 411 189 U. S. Statement of the Case. The omitted part recited that the note was for money borrowed on fifty shares of stock, and expressed certain conditions of the non-payment of the note when due, or the non-payment of premiums or assessments; and also expressed the right of petitioner in case of such non-payments to collect the debt though not due and to foreclose the mortgage. The mortgage covered lots in the city of Gadsden, Elowah County, State of Alabama. It repeated the note and its conditions and contained others. The facts connected with the execution of the note and mortgage are stated by the Circuit Court of Appeals as follows: “ The complainant below, the Chattanooga National Building and Loan Association, is, and was at the time the loan to Mr. Denson was made, a corporation under the laws of the State of Tennessee, with its principal office in the city of Chattanooga, in that State. Among its corporate functions was the authorization, and, so far as we are advised, its sole business was, to loan its funds to its stockholders on real estate security. It had no local office or agent in Alabama, but it had a traveling agent, whose business it was to solicit subscriptions to its stock, and to obtain applications for loans, and submit the same to the ome office of the association at Chattanooga. On the 25th of April, 1895, appellant Denson, who was a resident of Gadsden, Alabama, on the suggestion and at the so icitation of the agent, signed at that place a written applica-ion for fifty shares of stock in the association, complainant ® ow, appellee in this court. This application was forwarded y t e agent to whom Mr. Denson delivered it to the home t ^’,where stock was issued, and returned to the agent, .. hi'11 ^e^vere(^ to Mr. Denson. On the same day on 10 he applied for his stock, Mr. Denson signed a written J Plication to the association for a loan of $2500 on fifty shares for th° h6 h!l<^ aPPbed tor. He offered a premium of $2500 his e °an’_ an(t proposed to secure the loan and premium, if real^t 1Ca^On sb°uld be granted, by a mortgage on certain of ffi68 Gosden, Alabama, which he represented to be com 6 V.al?e ab of about $9000. This application was ac- panie by the report of two parties, selected by the associa 412 OCTOBER TERM, 1902. Statement of the Case. 189 U. S. tion, fixing the value of the property which Denson proposed to mortgage at $8000, and the certificate of an attorney, also selected by the association, with reference to the condition of the title. This application was forwarded by the agent to the home office in Chattanooga, where it was submitted, along with other applications, to the board of directors, by whom the application was granted, and the loan directed to be made in accordance with the charter and by-laws of the association. Thereupon a note and deed of trust were prepared at the home office, and were sent to the agent by whom Mr. Denson’s application had been taken and forwarded ; and at the same time the check of the association on the Chattanooga National Bank of Chattanooga, Tennessee, in favor of W. H. Denson, for the sum of $2367.50, was sent to one D. P. Goodhue, of Gadsden, with instructions to him to deliver said check to Mr. Denson when he should have executed and delivered the note and deed of trust. Upon the execution of the note and deed of trust by Denson and wife, and the delivery of the same to the agent, all at Gadsden, Alabama, the agent delivered to Denson the check for $2367.50, directing him to present the same to the First National Bank of Gadsden, which w7ould pay the same. The check was presented to the said bank, and the face thereof paid over to Denson, as the cashier said, c under an understanding with the said Building and Loan Association, and that the Chattanooga National Bank, on which the check was drawn, would pay the same on presentation.’ ” And the following testimony of the secretary of the association was quoted: “ At the time the loan to defendant Denson was made, complainant association had been for some time soliciting subscriptions to stock and receiving applications for loans in the Sta e of Alabama, and had paid a tax or license fee required under the laws of the State of Alabama for foreign corporations proposing to do business in that State ; and complainant’s officers supposed and understood that the payment of this fee or ax was the only condition with which it wzas necessary for t enl to comply in order to be entitled to do business in that Sta^c. Subsequently, however, and some months after the loan to CHATTANOOGA BUILDING &c. ASSN. v. DENSON. 413 189 U. S. Opinion of the Court. fendant Denson was made, complainant was informed by an attorney in the State of Alabama that the Alabama statutes required foreign corporations doing business in Alabama to designate a local agent on whom process against the association could be served, and also a local place of business in that State. Thereupon complainant promptly designated such local agent and place of business, and continued up to the second of October, 1899, to pay the license tax or fee required of non-resident corporations doing business in Alabama, and to keep a local agent and place of business in that State.” Mr. Robert Pritchard and JMr. T. B. Sizer for petitioner. Mr. Oscar W. Underwood and JMr. William H. Denson for respondents. Mr. Justice McKenna, after making the foregoing statement, delivered the opinion of the court. The question presented by the case is, did the loan made by petitioner and the taking for security the note and mortgage under the circumstances presented by the record constitute a doing of business in the State, within the meaning of the constitution and laws of the State ? It was said by the Supreme Court of Alabama, Beard v. The Union de. Avnet ican Publishing Company, 71 Alabama, 60, that to constitute a doing of business within the State “ there must be a doing of some of the works, or an exercise of some of the functions, for which the corporation was created.” It was held, however, that receiving a subscription to a newspaper, or collecting the money therefor was not doing business m t e State “ within the principle.” In a subsequent case, u ley v. Collier <& Pinckard, 87 Alabama, 431, the court announced that “ a loan or borrowing of money by or from ” a foreign corporation is a doing of business within the State, and ls an unlawful act, subjecting both the agents and company °a eavy penalty.” The provisions of the statute prescribing not'1 ^eS Were consi(Iered, and their effect was declared to be on y to punish offenders against the statute but to render 414 OCTOBER TERM, 1902. Opinion of the Court. 189 U. 8. their contracts void. Many cases were cited in support of the conclusion as a proper deduction from the imposition of the penalties. And the principle was applied to make illegal a contract with an agent for services rendered in procuring a loan for the use of the corporation. In Fa/rrior n. New England Mortgage Security Co., 88 Alabama, 275, it was said that the constitution prohibited the making of a single contract or the doing of a single act of business by a foreign corporation in the exercise of a corporate function, as well as the engaging in or carrying on its business generally. To the same effect are Mullens v. American Freehold Land Mortgage Co., 88 Alabama, 280; Ginn v. New England Mortgage Security Co., 92 Alabama, 135; Sullivan v. Sullivan Timber Co., 103 Alabama, 371. These cases constitute an interpretation of the constitutional and statutory provisions, and clearly hold that any act in the exercise of corporate functions is forbidden to a foreign corporation which has not complied with the constitution and statute, and that the contracts hence resulting are illegal and cannot be enforced in the courts. The petitioner is a building and loan association. Its corporate purpose is to lend money to its stockholders. The respondent Denson was one of its stockholders, and manifestly, regarding the essence of the transactions between them, they constituted a doing of business within the State of Alabama. But, it is insisted, that on account of the form and terms of the instruments and by operation of law the loans must be re garded as having been made in Tennessee. It is said. e note and mortgage were drawn in Tennessee, and by their ex press terms were payable there. The note is dated on its ace at Chattanooga, Tennessee, and expressly stipulates that it made with reference to and under the laws of Tennessee. And further, that the petitioner’s part of all the transactions was performed in the State of Tennessee, w and only acts which the borrower was required to do as a condition pre edent to the loan of the money to him were performed in bama.” It is hence deduced that the business done mus regarded as having been done in Tennessee. CHATTANOOGA BUILDING &c. ASSN. v. DENSON. 415 189 U. S. Opinion of the Court. Counsel has discussed at some length the situs of contracts and by the law of what place their obligation is determined. We think, however, that the discussion is not relevant. It withdraws our consideration from the constitution and statute of Alabama ; and, it is manifest, the contention based upon it, if yielded to, would defeat their purpose. The prohibition is directed to the doing of any business in the State in the exercise of corporate functions ; and there can be no doubt that petitioner considered that it was exercising such functions in the State. Its secretary testified that “ at the time the loan to defendant Denson was made complainant association had been for some time soliciting subscriptions to stock and receiving applications for loans in the State of Alabama, and had paid a tax or license fee required under the laws of the State of Alabama for foreign corporations proposing to do business in that State, and complainant’s officers supposed and understood that the payment of this fee or tax was the only condition with which it was necessary for them to comply in order to be entitled to do business in that State.” The application of Denson was presumably solicited as other applications were, and if what was done in pursuance of it did not constitute doing business io the State, the effect would be, as expressed by the Circuit Court of Appeals, that petitioner “ and other foreign associa-10ns engaged in the same business of loaning money on real security, may safely flood the State of Alabama with soliciting agents, make all the negotiations for loans, take real estate securities therefor, and fully transact all other business pertain-lng to their corporate functions as though incorporated therein, and yet neither be obliged to have a known place of business or any authorized agent within the State, nor pay any license ax or fee, as required of non-resident corporations doing business therein.” fp^he case of Fritts n. Palmer^ 132 U. S. 282, does not relieve fTi? e.e^ec^ the Alabama decisions and from the necessity 0 owing them. The action was ejectment to recover certain ^ea property in Colorado. The title of one of the parties was - trough the Comstock Mining Company, a Missouri cor-ra ion, which, before its purchase of the property, had been çi)- 416 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. gaged in the prosecution of its mining business in the State, but it had not complied with the constitution and statutes of the State prescribing the terms upon which foreign corporations might do business in the State. The constitutional provision was substantially like that of Alabama, but the statutes were materially different, and, besides, there had been no decision of the Supreme Court of Colorado interpreting the statutes. The only penalty expressed in the statutes was the imposition of personal liability upon the officers, agents and stockholders of the corporation for any and all contracts made within the State during the time the corporation was in default. It was held that the fair implication was that “ in the judgment of the legislature of Colorado, this penalty was ample to effect the object of the statutes.” And it was said that it was not for the judiciary, at the instance of or for the benefit of private parties, to forfeit property which had been- conveyed to the corporation and by it to others. Fritts v. Palmer, therefore, was but the interpretation of a particular statute, and there is not a word in it which denies or questions the power of a State to make void the contracts of a foreign corporation which is doing business in the State in violation of its laws. It is urged by petitioner that it thought it had complied with the law of Alabama, and it was not an intentional offender against it, and, therefore, should not be “ repelled from court. But the latter consequence has been decided to result from non-compliance with the statute, and we cannot grant an exemption from it. The statute makes no distinction between an inadvert ent and a conscious violation of its provisions, and a familiar legal maxim precludes a defence based on that distinction. or can the payment of the license fee be urged as a justification for omitting to comply with the statute. Such payment was one condition to be performed by a foreign corporation, t e designation of a known place of business and an authorize agent was another, and was of so much importance as to e en joined by the constitution of the State. It is contended that this case cannot be distinguishe m Bedford v. Eastern Building & Loan Association, 181 227, and must be ruled by that case. GORDON v. RANDLE. 417 189 U. S. Opinion of the Court. We think there is a marked distinction. In the Bedford case the contract was legally entered into and was entitled to be enforced. In the case at bar the contract was made in violation of the statute of Alabama, and it cannot, therefore, claim the protection given to the contract in the other case. Decree affirmed. Me. Justice Harlan dissents. GORDON v. RANDLE. EEEOE TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 229. Argued April 7, 1903.—Decided April 27,1903. Under the rules of the Supreme Court of the District of Columbia, the January terms begin on the first Tuesday of January. The effect of January 1 being a holiday, when it falls on Tuesday, is not to prolong an October term which ends on December 31, and postpone the commencement of the January term until January 8, but only to postpone the exercise by the court of its duties until the following day. It is too late, therefore, after January 1, to make a motion to prolong the October term, which motion under the rules must be made before the end of that term. The rule prolonging the term is to be exercised when invoked; there is no duty imposed upon the court to prolong the term of its own motion. The case is stated in the opinion of the court. Mr. S. Herbert Giesy for plaintiff in error. Mr. Holmes Conrad was on the brief. r‘ J. J. Darlington for defendant in error. • Justice McKenna delivered the opinion of the court. The purpose of this writ is to review an order of the Court ppeals of the District of Columbia, made March 12, 1901, a petition for mandamus to require Andrew C. Bradley, t. at time an Associate Justice of the Supreme Court of the strict of Columbia, to settle a bill of exceptions. vol. clxxxix—27 418 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. The plaintiff in error brought suit against defendant in error, in the Supreme Court of the District of Columbia, on the 20th day of April, 1897, to recover the sum of $5900, on several causes of action. They need not be described nor the defences which were interposed to them. It is enough to say that upon the issues made a verdict resulted for defendant in error, on the 16th of November, 1900. On December 14, 1900, a motion for new trial was made by plaintiff and denied by the court, and judgment entered on the verdict. The plaintiff prayed for and was allowed an appeal to the Court of Appeals of the District. The case was tried and judgment entered at October term, 1900, which expired December 31, 1900, unless it had been continued, and this resulted, it is contended, from the following proceedings: On the 7th day of January, 1901, the plaintiff through his attorney deposited with the clerk fifty dollars in lieu of a bond on appeal, and moved the court that October term be prolonged by adjournment in order to prepare a bill of exceptions. The motion was overruled on the ground that October term had ended on the 31st of December, 1900. Notice was given by the attorney for the plaintiff that he would present the “ bill of exceptions to the court for settlement before Justice Bradley in the Circuit Court number 2.” The bill was presented in pursuance of the notice, but Justice Bradley declined to settle the bill on the ground that October term had not been prolonged. The petition now under review was then presented to the Court of Appeals praying “ that the writ of mandamus may issue, requiring Andrew C. Bradley, an Associate Justice o the Supreme Court of the District of Columbia, to settle the bill of exceptions in this cause.” The petition was dismiss The rule of the court in regard to bills of exceptions is as follows: , “Sec. 2. The bill of exceptions must be settled before t e close of the term, which may be prolonged by adjournment in order to prepare it, but not longer than thirty-eight ays, exclusive of Sundays, save in case of a trial begun during term but not concluded until after the expiration of the term, GORDON v. RANDLE. 419 189 U. S. Opinion of the Court. in which case the trial justice may extend the term in his discretion in order to prepare a bill of exceptions.” The case presents some anomalies. The mandamus was prayed against Justice Bradley for refusing to act officially, but the citation in error was directed to Arthur E. Randle, and he alone is defendant in error here. He was a party in the original cause, but not a party in the proceedings for mandamus. Making him a party here is attempted to be justified by the death of Justice Bradley and the action of the Court of Appeals in not entertaining the petition for mandamus. The immediate answer would seem to be that mandamus is itself an action, and can only, like other actions, be prosecuted against the parties to it, and that one of two effects resulted from the death of Justice Bradley, either the action abated or could only be continued against the person who succeeded to his office and duty. But passing this, we think the main contention of plaintiff in error is untenable. The argument of plaintiff is that the purpose of the rule was to allow thirty-eight days for the settlement of bills of exceptions, and to afford time to do so the rule provided that the term might be prolonged by adjournment, and the duty of prolonging the term was imposed on the court. We do not so interpret the rule. It provided the means for parties to secure the necessary time to present bills of exceptions. The court was not required to anticipate the intention of parties. Its duty under the rule, like its other duties, was to be exercised when invoked. But it is also insisted that a motion to prolong the term was made in time. The argument to support this is that October term did not end on the 31st of December, 1900, but continued until the 7th of January, 1901, because by Rule 3 of the Supreme Court of the District of Columbia the January terms °f the Circuit Court commence on the first Tuesdays in January, and that the first Tuesday of January, 1901, fell on the first of January, which, being a holiday, and therefore, as it is insisted, a dies non, the term did not commence until the folowing Tuesday, the 8th of January. We cannot concur in o contention. The term commenced on the first of January 420 OCTOBER TERM, 1901. 189 U. S. Opinion of the Court. and the only effect of the holiday was to deprive the court of the power of doing any business and to discharge those who had been required to attend until the succeeding day, when the general duties and powers of the court could be legally exercised. It follows, therefore, that there was no error in refusing to settle the bill of exceptions, and the petition for mandamus was properly denied. Order affirmed. PULLMAN COMPANY v. ADAMS. ERROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI. No. 138. Argued and submitted December 19,1902.—Decided March 2,1903. By sections 3317, 3387 of the Mississippi Code of 1892, a tax is imposed “on each sleeping and palace car company carrying passengers from one point to another within the State, one hundred dollars, and twenty-five cents per mile for each mile of railroad track [in the State] over which the company runs its cars.” Section 195 of the state constitution declares sleeping car companies to be common carriers. On the assump tion that such companies would be held free to abandon the business taxed if they see fit, the tax is not void as an interference with comtneice between the States. Crutcher v. Kentucky, 141 U. S. 47, distinguishe , Osborne v. Florida, 164 U. S. 650, followed. The case is stated in the opinion of the court. Argued by Mr. William Burry for plaintiff in error. Jfr* J. Runnells was on the brief. Submitted by J/r. Marcellus Green, Mr. W. R. Harper and Mr. W. H. Potter for defendant in error. Mr. Justice Holmes delivered the opinion of the court. This is an action for taxes brought by the revenue a^eD^e the State of Mississippi against the Pullman Company, defendant in due form raised the objection that the tax PULLMAN CO. v. ADAMS. 421 189 U. S. Opinion of the Court. was void as an interference with commerce between the States. Judgment was given for the plaintiff in the local state court, and the judgment was affirmed by the Supreme Court of the State. 78 Mississippi, 814. The case then was brought here by writ of error. The tax in question was imposed by the following sections of the Mississippi Code of 1892 : “ § 3317. A tax on privileges is levied as follows, to wit: . . . § 3387. Sleeping car companies: On each sleeping and palace-car company carrying passengers from one point to another within the State, one hundred dollars, and twenty-five cents per mile for each mile of railroad-track over which the company« runs its cars.” We assume that the last words mean what afterwards was expressed by an amendment, “ over which the company runs its cars in this State.” The Pullman Company is an Illinois corporation. Its sleeping cars were carried by various railroad companies, and all of them were carried into the State from another State, or out of the State to another State, or both. But such cars in their passage also carried passengers from point to point within the State, and a specific fare was collected by the servants of the Pullman Company. The company attempted by pleas and by an offer of evidence to bring before the court the fact that its receipts from this class of passengers did not equal the expenses chargeable against such receipts. It contended that these facts would show that the business within the State was merely a burden on its commerce between the States, while at the same time, it argued, it was compelled to assume that burden by § 195 of the state constitution, which declares sleeping car companies to be common carriers and subject to liability as such. The pleas were held bad on demurrer, the evidence was rejected, and the jury was instructed to find for the plaintiff on the facts a mitted. These rulings and the refusal of the court to declare e above mentioned § 3387 unconstitutional are the errors assigned. to C^ause state constitution referred to were held impose the obligation supposed and to be valid, we assume 'nt out discussion that the tax would be invalid. For then it 422 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. would seem to be true that the state constitution and the statute combined would impose a burden on commerce between the States analogous to that which was held bad in Crutcher v. Kentucky, 141 IT. S. 47. On the other hand, if the Pullman Company, whether called a common carrier or not, had the right to choose between what points it would carry, and therefore to give up the carriage of passengers from one point to another within the State, the case is governed by Osborne v. Florida, 164 U. S. 650. The company cannot complain of being taxed for the privilege of doing a local business which it is free to renounce. Both parties agree that the tax is a privilege tax. As the validity of the tax is thus bound up with the effect of the section of the state constitution, we think that the Pullman Company was entitled to know how it stood under the latter, and that a judgment against it could not be justified by reasoning which leaves that point obscure. We are somewhat em-barrased in dealing with the case, because we are not quite certain whether we rightly interpret the intimations upon the subject in the judgment under review. If the constitution of Mississippi should be read as imposing an obligation to take local passengers, the question for us might be which, if not both, the clause of the constitution or the tax act, is invalid. But we assume that the opinion of the Supreme Court of Mississippi intends to meet the difficulty frankly, and when it says that the argument against the tax drawn from the above interpretation of the constitution is fallacious, we take it as meaning that no such interpretation will be attempted in the future, and we take it so the more readily that we can see no ground for a different view. If we are right in our understanding the judgmen of the Supreme Court was correct for the reason sufficient y stated above. Judgment affirmed. NAT. BANK & LOAN CO. v. PETRIE. 423 189 U. S. Opinion of the Court. NATIONAL BANK AND LOAN COMPANY 152 Massachusetts, 133,134, and there-re may be subject to the same defences as an action brought upon the contract. Weckler v. First National Bank agerstown, 42 Maryland, 581, 595, 597, seems to have been 426 OCTOBER TERM, 1902. Syllabus. 189 U. S. an action of this character in respect of a sale on commission by the bank. We express no opinion as to an action of that kind. See Thompson v. Saint Nicholas National Bank, 146 U. S. 240, 251; Concord First National Bank v. Hawkins, 174 U. S. 364. But when a right is claimed to repudiate it, the party who denies the right is the one who relies upon the contract, and that party must take it as it was made. The record discloses no error reexaminable here. Judgment affirmed. Me. Justice McKenna took no part in the consideration and disposition of this case. National Bank and Loan Company v. Care. No. 165. Argued with No. 166 and by the same counsel. Mr. J ustice Holmes : This case is similar in substance, pleading and argument to the foregoing, with the additional fact that the president of the bank acted as the confidential adviser of the defendant in error and did not reveal to her that the bonds belonged to the bank or that he was on both sides of the transaction and interested against her. As soon as she found out that the bank was the seller she repudiated the sale. Judgment affirmed. BROWNFIELD v. SOUTH CAROLINA. ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA. No. 172. Argued February 25,1903.—Decided March 9,1903. Where a negro moves to quash an indictment on the ground that he is denied the equal protection of the laws and his civil rights under t e Constitution and the laws of the United States by the exclusion of negroes from the grand jury, but the record does not show that he proved or o fered to prove the truth of the allegations on which the motion was base > this court cannot interfere with the judgment. BROWNFIELD v. SOUTH CAROLINA. 427 189 U. S. Opinion of the Court. The case is stated in the opinion of the court. Mr. J. L. Mitchell and Mr. W. J. Whipper for plaintiff in error. Mr. E. M. Hewlett was with them on the brief. Mr. John S. Wilson and Mr. W H Townsend for defendant in error. Mr. Justice Holmes delivered the opinion of the court. This case comes here by writ of error to the Supreme Court of South Carolina. The plaintiff in error has been convicted of murder, and the error alleged is that the grand jury was composed wholly of white persons, and that all negroes, although constituting four fifths of the population and of the registered voters of the county, were excluded on account of their race and color. The plaintiff in error is a negro, and he says that in this way he has been denied the equal protection of the laws and of the civil rights guaranteed to him by the Constitution and laws of the United States. Ca/rter v. Texas, 177 U. S. 442. The case was taken to the Supreme Court of the State by appeal and the judgment of the trial court was affirmed. 60 S. C. 509. We have stated the error which is alleged. The trouble with the case is that we are not warranted in assuming that the allegations are true. The record contains an agreed statement called a brief, in which it appears that the defendant below ®ade a motion to quash on the grounds stated, and in which it is said that the defendant offered to introduce testimony to support these grounds. But this agreed statement is “ signed with relation to case as settled by judge.” It appears that the parties agreed that the judge before whom the case was tried should make a statement as to his rulings upon the motion to quash e indictment, and also as to the motion to challenge the arrays grand and petit jurors in the case, and also as to requests to c arge, and such statement shall be the agreed statement for f e purposes of this appeal.” The challenge of the array re-crred to was upon the same grounds as the motion to quash. 428 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. In pursuance of this agreement the judge made a statement of the grounds on which he overruled the motion. “ Because the statement of facts set out in the grounds for quashing the same, did not appear from the records or otherwise. . . . In the absence of any showing to the contrary, I was bound to assume that the jury commissioners had done their duty.” The foregoing language is quite inconsistent with there having been an offer to prove the allegations of the motion, as is the further fact that the record discloses no exception to the supposed refusal to hear evidence offered to that end. If these considerations were not enough, we have, in addition, the absence of any suggestion of a refusal to admit evidence in the reasons for appeal to the Supreme Court, and the statement of the Supreme Court that it was not contended at the hearing of the appeal that there was any offer to introduce testimony on the point “other than the offer therein made.” The last words refer, we assume, to the concluding words of the motion: “All of which the defendant is ready to verify.” Upon the whole record we are compelled to infer that the statement that the defendant offered to introduce evidence was inserted in the so-called brief by his counsel, but was not agreed to except so far as it might be confirmed by the statement of the judge, and that he did not confirm it. We see no ground for the suggestion that this fact was outside the matters submitted to the judge, and therefore must be taken to have been admitted. Evidently that was not the understanding on the part of the State. It is suggested that the allegations of the motion to quash not having been controverted and having been support by the affidavit of the defendant, must be taken to be true. But a motion, although reduced to writing, is not a pleading, and does not require a written answer. It appears from t e grounds on which the judge decided it, apart from anything else, that the allegations were controverted, and under sue circumstances it was necessary for the defendant to ma ea attempt to introduce evidence. The formal words o motion were not enough. Smith v. Mississippi, 162 U. • ’ 601. . e f q nth A provisional objection is made to the constitution o o PARDEE v. ALDRIDGE. 429 189 U. S. Opinion of the Court. Carolina, in case it should be held to exclude negroes from the jury. But the ground of the motion was not that negroes were excluded by an invalid constitutional provision, but that they were excluded in the administration of the law, although they were qualified under it to serve. The case involves questions of the gravest character, but we must deal with it according to the record, and the record discloses no wrong. Judgment affirmed. Mr. Justice McKenna took no part in the consideration and disposition of this case. PARDEE v. ALDRIDGE. ERROR TO THE COURT OF CIVIL APPEALS FOR THE FIFTH SUPREME JU- DICIAL DISTRICT OF THE STATE OF TEXAS. No. 137. Argued January 19, 20,1903.—Decided March 16,1903. Where a railroad company mortgages its road including all appurtenances and appendages of said railroad, and the property of said company now acquired, or which may be acquired, used for and pertaining to the operation of said railroad, a sale under such mortgage does not include property acquired by the company after the mortgage for the purpose of subdivision and sale; and it is a question for a jury to determine, whether the land so purchased was to be used for and pertaining to the operation of the railroad or not. A. suit to foreclose a mortgage is not a proceeding in rem which will bind persons who are not parties thereto, and the fact that the decree covered the property in question does not conclude strangers to the suit. The case is stated in the opinion of the court. Maxwell Evarts for plaintiffs in error. Mr. R. S. Lovett was on the brief. Mr. IF. J. Moroney for defendants in error. Mr. Justice Holmes delivered the opinion of the court. This is an action of trespass to try title to land brought by 430 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. Aldridge and others, trustees, against Pardee and others, the plaintiffs in error. The only parcels here in controversy are two tracts, known as the Hughes and Slaughter tract and the Mays tract. Both parties claim title under the Texas Trunk Railroad Company. Pardee claims under the foreclosure of a mortgage made by the railroad company and some incidental proceedings. Aldridge claims under a sale outside of the mortgage. The question in the case is whether the mortgage embraced these tracts. Although it may not be necessary, we will state the title on each side a little more in detail before discussing the questions of law. On March 22, 1880, the Texas Trunk Railroad Company mortgaged its road, “including all appurtenances and appendages of said railroad, and the property of said company now acquired or which may be acquired, in the State of Texas, used for and pertaining to the operation of said railroad.” This was to secure bonds. Later in the same year, although the deed wTas dated earlier, the Hughes and Slaughter tract was conveyed to the railroad. The Mays tract was conveyed the next year. On January 31, 1883, there was a decree of foreclosure on the mortgage in the United States Circuit Court, and there was a sale on the first of the following May. The purchasers organized a new company, under the old charter, but a distinct organization, as permitted by the local law. In 1885 the property of the second company was sold by the sheriff, on execution following a judgment in the state court, and also by the United States- marshal, under an order of sale for failure to pay certain sums as provided in the original foreclosure proceedings. The same persons purchased at both sa es and organized a third company, still under the old charter. On August 30, 1888, the third company made a mortgage ot the railroad. A bill to foreclose this was filed in the Unite States court on September 4, 1891, a decree of foreclosure was made in 1895, and Pardee, the plaintiff in error, purchase a the sale, for the benefit of himself and C. P• Hunting om Thus it will be seen that the title of the plaintiffs in error e pends, as we said, on the question whether the original mor gage embraced the land in suit. PARDEE v. ALDRIDGE. 431 189 U. S. Opinion of the Court. Before the first foreclosure, but after the execution of the mortgage, suits were begun against the first corporation, and in 1887 a judgment was rendered against it in one of them. On this judgment executions were issued and the parcels of land in suit were sold to the trustee for Downs and his associates, the defendants in error. The trustee brought a suit to try title against the trustees and surviving directors of the first company and a receiver of the third company, and got judgment on April 7, 1898. The defendant directors and trustees also executed a deed to him, and he afterwards conveyed to the present trustees for Downs. If the first mortgage embraced the land, Downs got no rights, but except for that question and one other to be mentioned, his title is not in controversy here, and we do not go into it in detail. The trial court gave judgment for Pardee and Huntington as to the tracts in question, but the judgment was reversed by the Court of Civil Appeals, and final judgment was entered in that court in favor of the trustees for Downs. 24 Tex. Civ. App. 254. A writ of error was refused by the Supreme Court of the State. The case is brought here by writ of error on the ground that due effect was denied to decrees of the United States court. Du-passeur v. Rocltereau, 21 Wall. 130. See Sweringen v. St. Louis, 85 U. 8. 38, 41. As we are of opinion that the judgment of the Court of Appeals was right, it is less important than otherwise it would be to discuss the grounds upon which we think t at there is jurisdiction, and we shall proceed at once to the merits of the case. f the disputed parcels of land came under the mortgage w en they were acquired, they did so as “ property used for an pertaining to the operation of said railroad.” At the trial cvi ence was taken on the question whether these parcels were USe or did pertain to such operation. The defendants in error disclaimed to the extent of a right of way one hundred rT feet on each side of the center line of the rail- rl there vvas testimony that the company, when itpur-ase ? intended, after using what was necessary for tracks on lamp68] 8^e’ OU^ ^fie res^ Hughes and Slaughter 111 ots and sell them to the employes of the road. So as 432 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. to the Mays tract; what was needed was taken for tracks and to get sand, and the rest was to be cut up into lots. Both parcels were returned each year for taxation as “ lands and town lots . . . exclusive of right of way and depot grounds,” in the inventory of the company. The judge instructed the jury to return findings on two special issues to the following effect: As to the Hughes and Slaughter land, the intention of the company was to put there the main track, part of the sheds, and whatever switches and side tracks should be necessary to the operation of the road, and if they did not occupy all of the land to sell lots on the eastern side to its employes. The land was was not cut up and no lots were sold. The company built its main track on the west side, a Y extending eastwardly across the land to beyond its centre, and a small house, used as a ticket office and car shed. This was the only land the road owned in Dallas when it terminated, and if it had been constructed and operated properly it would have needed as much as twenty-five acres (the size of the tract) for terminal purposes. As to the Mays tract, the intention was as above stated. The main track was built across it on the east, and a spur track was built to reach the sand. It would be necessary to use sand properly to construct and operate the road. The foregoing findings were merely the result of rulings on the evidence. But the jury found, on other special issues submitted to them, that all but one hundred feet off the west boundary of the Hughes and Slaughter tract was acquired for the above stated purpose of subdivision and sale, that any use of the rest of the land in connection with the operation of t e railroad, except the hundred feet, was only of a temporary character, and that there was no such use of the rest of the lan except of so much as was occupied by the Y. There was e\ dence that the company expected to use another tract for ter minal purposes, although it never got the deed. The jury ther found that no part of the Hughes and Slaughter rac above what was disclaimed was necessary for the construe io , equipment or operation of the railroad when the first mor ga^ was foreclosed. Also, they found that all of the Mays ^ac^re acquired for the purpose of subdivision and sale. s PARDEE v. ALDRIDGE. 433 189 U. S. Opinion of the Court. was evidence warranting these findings, and as the findings dealt with pure matters of fact, which it was the province of the jury to determine, so far as there was a conflict between them and those which were made under instructions, those which expressed the free judgment of the jury would prevail. We have no concern with the arguments which are urged here in favor of different conclusions. It is enough that there was some evidence to support the free findings of the jury, and that being so, those findings establish the facts, as was held by the Court of Appeals. On the findings which we have recited the land in dispute was not property used for and pertaining to the operation of said railroad, and the ruling of the Court of Appeals was right. Some point is made of the disclaimer, which is said to have been arbitrary in amount and not based on evidence. But a party may disclaim what he likes, in advance of the evidence, and is not bound to give reasons for his course. One matter remains to be mentioned. A receiver appointed in the second foreclosure suit brought a bill in equity in the United States court against certain persons who had purchased the land in question on other execution sales. One ground of the bill was that the property was subject to the, mortgage, and on July 16,1895, it was so decreed. It is argued that although the trustees for Downs were not parties to this bill, they in some way were affected by the decree, that the proceeding was in rem, and that the decree brought the property into the custody of the court so as to invalidate the sale. Wiswall v. Sampson, 14 How. 52. But a suit in equity is not a proceeding in rem properly so-called. It does not purport to summon or invite, by notice or otherwise, all the world to come in, so far as there are any adverse interests. It is more personal even than the common law, and works out its decrees by orders the defendants. Of course, the adjudication in such a suit does not conclude strangers. As to the decree bringing the property into the custody of the court in such sense as to invalidate the sales under which Downs claims, the receiver being a eceiver of the mortgaged property only, and there being no rep-esentative of the equity of redemption or of Downs’s interest vol. clxxxix—28 434 OCTOBER TERM, 1902. Syllabus. 189 U. S. before the court, it is not to be presumed that any act was done inconsistent with outstanding rights as now established, or that the receiver was put in possession of property which was not embraced in the mortgage. The receiver was in possession of the road, and his right to the portion of the land over which the railroad ran is not disputed, but it does not appear that he held the residue under an adverse claim, or at all. Although declaring his right to the residue to be paramount to a third person, the court left all others free to assert their claims. There is nothing to show that the mode in which the trustees for Downs asserted their rights was unlawful or void. Probably nothing was done under the suit in equity beyond the entering of the decree on July 16, 1895. The principal sale took place before that date. Judgment affirmed. Mr. Justice White and Mr. Justice Peckham dissented. KNOXVILLE WATER COMPANY v. KNOXVILLE. ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE. No. 212. Argued March 13,1903.—Decided March 23,1903. The Knoxville Water Company was incorporated to construct waterwor s near Knoxville with power to contract with the city and inhabitants or a supply of water and “ to charge such price for the same as may agreed upon between said company and said parties;” the genera a^ under which the company was incorporated provided that it shou no^ interfere with or impair the police or general powers of the municip authorities, and they should have power by ordinance to legulate price of water supplied by such company. The company in 1 tracted for an exclusive privilege for thirty years to constiuctwor s,^ after fifteen years to convey to the city at a price to be agree u^. fixed by appraisal, and to “ supply private consumers at not exce five cents per hundred gallons.” Subsequently the city passe a nance reducing the price of water to private consuméis below In an action to enforce penalties for overcharging the later late, Held, that there was no contract on the part of the city to per KNOXVILLE WATER CO. v. KNOXVILLE. 435 189 U. S. Opinion of the Court. charge named therein; and that the charter having been accepted subject to the provision of the general act reserving the power in the municipal authorities to regulate the price of water, the subsequent ordinance was not void either as impairing the obligation of a contract, or as depriving the company of its property without due process of law. The case is stated in the opinion of the court. J/r. Charles T. Cates, Jr., for plaintiff in error. JZr. Heber J. Hay was with him on the brief. Hr. G. IF. Pickle for defendant in error. Mr. J. W. Culton was with him on the brief. Mr. Justice Holmes delivered the opinion of the court. This is a complaint for a penalty against the Knoxville Water Company for charging and collecting water rates in excess of the rates fixed by the ordinances of the city of Knoxville. The water company pleaded that the ordinances relied on violated the obligation of contracts between the city and itself, and deprived it of its property and liberty without due process of law, and so was contrary to the Constitution of the United States. The case was tried on appeal before a single judge, who made a special finding of facts, on which the Supreme Court of the State entered a final judgment for the plaintiff. 107 Tennessee, 647. The company then brought the constitutional questions here by writ of error. The water company was incorporated in Tennessee in 1882 to construct waterworks in or near Knoxville, with power to contract with the city and inhabitants for the supply of water, and ° charge such prices for the same as may be agreed upon be-ween said company and said parties.” This incorporation Ms under a general act which provides as follows: “ And this ct is in no wTay to interfere with or impair the police or general powers of the corporate authorities of such city, town or aoe5 and such corporate authorities shall have power by or-mance to regulate the price of water supplied by such company. Acts of 1877, c. 104, § 2. In the same year, 1882, the C0BaPany made a contract with the city by which it agreed to 436 OCTOBER TERM, 1902. 189 U. 8. Opinion of the Court. construct its works and to furnish water, the city gave the company exclusive privileges for thirty years and agreed to make certain payments, etc., and it was mutually agreed, among other things, that, after fifteen years, the city should have the right to purchase the works at a price to be fixed by appraisers if not agreed upon. The contract contained three distinct parts, first, the promises of the company ; next, those of the city; and last, the mutual undertakings. In the first part the company undertook as follows: “ Said company will supply private consumers with water at a rate not to exceed five cents per one hundred gallons,” subject to an immaterial proviso. These are the words relied on by the company. They are assumed to contain an implied undertaking on the part of the city not to interfere with the company in establishing rates within the contract limits. After the contract was made the company built its works and furnished water. Later it took over contracts between two other concerns and neighboring towns and consolidated with one of the other concerns, which was a corporation. The towns on their side were made a part of Knoxville and the whole water supply was brought under the original contract. But these facts do not alter or affect the present case and need not be stated in detail. The company went on furnishing water and charging rates within the contract limit, to the satisfaction of the city, it may be assumed, until within a year or two, when the city passed an ordinance which cuts down the rates which the company had been charging, and asserts its right to charge. The trouble at the bottom of the company’s case is that the supposed promise of the city on which it is founded does no exist. If such a promise had been intended it was far too important to be left to implication. In form the words of this part of the instrument are the words of the company alone. They occur in the part of the contract which sets forth t e company’s undertakings, not in the part devoted to the prom ises of the city or in that which contains the still later mutua agreements. See Georgia Railroad <& Banking Co. v. ’ 128 U. S. 174; Ragan v. Aiken, 9 Lea, 609. They are words KNOXVILLE WATER CO. v. KNOXVILLE. 437 189 U. S. Opinion of the Court. of a company which was notified by the act which called it into being of the power expressly conferred upon the city “ by ordinance to regulate the price of water ” which the company might supply. People who have accepted, as experience shows that people will accept, a charter subject to such liabilities cannot complain of them or repudiate them, nor can the company which they have formed. Rockport Water Co. v. Rockport, 161 Massachusetts, 279. This consideration answers a portion of the company’s argument as to its rights under the Fourteenth Amendment, and makes it unnecessary to consider whether the regulation of water rates is properly to be classed as a police power. It also reinforces our interpretation of the instrument upon which the company founds its claim. We do not mean that under other circumstances words which on their face only express a limit might not embody a contract more extensive than their literal meaning. Detroit n. Detroit Citizens' Street Ry. Co., 184 U. S. 368. But in that case the rate was fixed by an ordinance which was the language of the city, the ordinance was under a statute which declared that the rates should be established by agreement between the city and the railway company, and neither statute nor ordinance reserved a power to the city to alter rates. In the present case it seems to us impossible to suppose, that any power to contract which the city may have had was intended to be exercised in such a way as to displace the municipal power expressly reserved or given by the general law under which the water company was created. It would require stronger words than those used here to raise the question whether, under the statutes in force, the city could do it if it tried. The contracts fixing prices authorized by the statute were contracts between the company and its customers, not, as in the case of the railway company, a single contract between the company and the city, and were subject to the power to regulate them given to the city by the same statute. We assume that the charter of the city authorized it to contract, but it was not so specific as the statute which we have quoted, and added nothing to the power conferred by that law. With the construction which we give the contract between t e company and the city the argument that the obligation of 438 OCTOBER TERM, 1902. Opinion of the Court. 189 U. 8. that contract is impaired must fall. It is argued here that the reduction of rates is not reasonable, and is or may be taking a first step towards a compulsory purchase of the company’s plant at an unfairly low. pried, by cutting down its value. We may assume with the Supreme Court of Tennessee that if rates were reduced unreasonably a judicial remedy would be found. We may assume further that an attempt to affect the price of the company’s plant in that way, if the city should elect to purchase, would not be allowed to succeed. But no such questions are before us. There is no evidence and no presumption that the ordinance rates were unreasonable or were fixed with sinister intent. The judgment of the Supreme Court of Tennessee states that the question was not considered by it, and is expressed to be without prejudice to later litigation concerning the reasonableness of the rates. If the question is open here it is open only in form, and no error is shown. A part of the argument was directed against the validity of the ordinance because of a failure to notify an aiderman who was out of the State, but we see no sufficient ground for undertaking to revise the judgment of the state court on that point. Some argument was attempted as to the ordinance impairing the obligation of the contracts between the company and its consumers. But such contracts, of course, were made by it subject to whatever power the city possessed to modify rates. The company could not take away that power by making sue contracts. New Orleans x. New Orleans Water Works Co., 14 U. S. 79, 91, 92; Browne v. Turner, 176 Massachusetts, 9,1 • The contracts recognize the possibility of change, as the agree ment is to pay for the water in accordance with the rates no\ or hereafter in force.” This constitutional objection hardly is open on the pleadings, but we have given the company e benefit of the doubt so far as to consider it. We discover no error in the record, and the judgment of the Supreme Court o Tennessee must be affirmed. , Judgment affirmed. Mt?,. Justice White, Mr. Justice McKenna, and Mr. Day, not having been present at the argument, took no par , the decision of the case. SAN DIEGO LAND & TOWN CO. v. JASPER. 439 189 U. S. Opinion of the Court. SAN DIEGO LAND AND TOWN COMPANY v. JASPER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA. No. 193. Argued March,10,1903.—Decided April 6, 1903. In this action it was held that the rates for water fixed by a board of supervisors under the statute of California of March 12, 1885, did not amount to a taking of the water company’s property without due process of law. The case is stated in the opinion of the court. Jfr. John D. Works for appellant. Mr. Bradner W. Lee and Jfr. Louis B. Works were on the brief. Mr. A. Haines for appellees. Mr. T. L. Lewis was on the brief. Mr. Justice Holmes delivered the opinion of the court. This is a bill in equity brought in the Circuit Court against the board of supervisors of San Diego County and others for the purpose of having certain water rates which have been fixed by the board declared void. It is alleged that the rates are so low as to amount to a taking of the plaintiff’s property without due process of law. The Circuit Court decided that it did hot appear that the rates would have that effect and dismissed the bill, whereupon the plaintiff appealed to this court. By a statute of California approved March 12, 1885, the oard of supervisors of the counties are to fix the maximum water rates in cases like the present. They are authorized to proceed to a hearing upon a petition of twenty-five inhabitants who are taxpayers, and the rates when fixed are to be binding or not less than one year. Subject to that limitation they may 440 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. be reestablished or abrogated upon a similar petition or a petition of the water company subjected to the regulation. The rate was fixed in this case upon a petition of twenty-five taxpayers. The present bill made the petitioners parties as well as the board, and alleged that they were not water takers, but were induced to petition by the consumers, in order that the latter might not admit that any rates other than those originally fixed by the company could be established by any one. The petitioners, after a demurrer by them to the bill was overruled, failed to answer and the bill was taken pro confesso as against them. On these facts, before coming to the merits, the appellant contends that this bill should be dismissed. It says that the only parties in interest have made default and thatthe ordinance regulating the rates was procured by a fraud upon the supervisors, with the consequence, we suppose it to be intended, that the ordinance should be set aside on that ground without going further into the case. The preliminary objections may be disposed of in a few words. The default of the petitioner is relied upon as the ground of expressions in one or two cases here and elsewhere, that the duties of the supervisors are judicial in their nature. Spring Valley Water Works v. Schottler, 110 U. 8. 347, 354; Jacobs v. Board of Supervisors, 100 California, 121, 130. The conclusion drawn is that when the original plaintiffs disappear the case is at an end. We need not stop to consider to what extent or for what purposes the proceedings before the supervisors properly m ay be termed judicial. See further San Dwgo Band <& Town Co. v. National City, 174 U. S. 739, 750; Cambridge v. Railroad Commissioners, 153 Massachusetts, 161,170. It is obvious that they are not so in such a sense as to do the appellant any good. The petitioners did not complain of injury to any private interest of theirs. They had none. They appeared on behalf of the public only and asked purely legislative action in the form of a general rule for the future to govern the public at large. San Diego Land c& Town Co. v. Nations City, ubi supra ; Spring Valley Water Works v. San Francisco, 82 California, 286; Smith v. Strother, 68 California, 194; vrin, Petitioner, 174 Massachusetts, 514. As soon as sue a SAN DIEGO LAND & TOWN CO. v. JASPER. 441 189 U. S. Opinion of the Court. rule was established, if not as soon as a hearing was begun, the petitioners were merged in the public affected by the rule. The present bill is an independent proceeding to have the ordinance declared void. In such a case the body making the regulation is the usual, proper and sufficient party respondent, and the default of those who set the original proceedings in motion is immaterial, so long as it defends the case. The charge that there was a fraud practiced on the board hardly deserves mention, except for the undue warmth with which it has been pressed. There are no allegations in the bill sufficient to open the question. The board is here adhering to and defending its action, professing still to be satisfied. 'There is no indication of its fraud or attempt at fraud. The course adopted was adopted for reasons which appear on the face of the bill, the situation was made plain at the hearing before the supervisors, and we see no evidence that the parties did more than exercise their legal rights. Coming now to the merits, the first thing to be noticed is that the ordinance complained of took effect in November, 1897, and that after a year from that date the appellant was free to apply for a modification of the rates. It did not do so. There is no allegation or suggestion that the board is corrupt or that it purposes and intends, without regard to evidence, to adhere to unjust rates so as to destroy or impair the value of the appellant’s works. Under such circumstances the question arises whether this is much more than a moot case, in view of the principles adverted to in Tennessee v. Condon, ante, p. 64, or at least whether the appellant should not be required to exhaust its other remedies before coming into court. In any event, the limited effect of the ordinance must be taken into account when we are called on to declare it “ such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.” San Diego Land <& mon Co. v. National City, 174 U. S. 739, 754. In a case like is we do not feel bound to reexamine and weigh all the evidence, although we have done so, or to proceed according to our 442 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. independent opinion as to what were proper rates. It is enough if we cannot say that it was impossible for a fair-minded board to come to the result which was reached. The scheme of the California statute is as follows: The board is to estimate the value of the property actually used and useful in furnishing the water, and the annual reasonable expenses, including the cost of repairs, management, and operating the works. The cost of permanent improvements is not to be included under this last head, but “ when accomplished shall be included in the present cost and cash value of such work.” Then the board is to adjust the rates so that the net receipts and profits of the water company shall be not less than six nor more than eighteen per cent upon the said value of the used and useful property. The board in this case estimated the value of the plant to be $350,000, and the returns at the rates fixed to be $34,442, or six per cent on the value and the expenses necessary to maintain and operate the plant, which were found to be $13,442. The main object of attack is the valuation of the plant. It no longer is open to dispute that under the Constitution “ what the company is entitled to demand, in order that it may have just compensation, is a fair return upon the reasonable value of the property at the time it is being used for the public.” San Diego Land <& Town Co. n. National City, 174 IT. S. 739, 757 That is decided, and is decided as against the contention that you are to take the actual cost of the plant, annual depreciation, etc., and to allow a fair profit on that footing over and above expenses. We see no reason to doubt that the California statute means the same thing. Yet the only evidence in favor o a higher value in the present case, is the original cost of the or <, seemingly inflated by improper charges to that account an y injudicious expenditures, (being the cost to another c0™Pa.^ which sold out on foreclosure to the appellant,) couple wi a recurrence to testimony as to the rapid depreciation 0 pipes. In this way the appellant makes the value over a mi dollars. No doubt cost may be considered, and will have mo^ or less importance according to circumstances. In the Pres SAN DIEGO LAND & TOWN CO. v JASPER. 443 189 U. S. Opinion of the Court. case it is evident for reasons some of which will appear in a moment that it has very little importance indeed. The property of the company and its predecessor consisted not only of the waterworks, but of a large amount of land. On the evidence the waterworks may be estimated at about a quarter of the total value. The earlier company was unable to raise the money it needed. Its bonds for $500,000, secured by mortgage, were not worth more than 95, and an attempt to raise a further loan on mortgage failed. The whole amount that the market and interested stockholders were willing to lend on all the security it could offer was $650,500. The company was put into the hands of a receiver, who issued some certificates, which, we infer, were made a paramount lien. Then, by arrangement with the stockholders who were willing to go on, the mortgage was foreclosed and all the property was sold to those stockholders for the nominal sum of $889,163.33, which was equal to the amount of outstanding certificates and bonds, and was paid by turning them in. This was in 1897, a few months before the passage of the ordinance complained of. The purchasers organized the present corporation, and the above-mentioned sum is the cost of the land and waterworks to it. The appellant protests that this is not a fair value for the property of the company. We doubt whether it is not a liberal allowance. The officers of the two companies at the time thought that they got more than they could have got in any other way. But at all events, it is decided that the price is evidence, we might say more important evidence than the original cost. Dow v. Beidelman, 125 U. S. 680. If the supervisors were convinced by it we certainly could not say, as matter of law, that they were wrong. Of course, as we indicated the other day in Knoxville Water Co. v. Knoxville, ante, p. 434, if an attempt had been made to cut down values by the reduction 0 rates the courts would know how to meet it. But there is nothing of that sort in this case. The valuation of property for the purposes of taxation may not be technical evidence in a court of law, yet it may be con-si ered in coming to a decision whether the action of the supervisors was unfair, especially if, as was testified, it was sworn 444 189 Ü. S. OCTOBER TERM, 1902. Opinion of the Court. to by the officers of the company. The total valuation for 1897 was somewhat less than the price got at the sale, and that of the plant was $155,000. Another circumstance was adverted to by the Circuit Court which we may mention. Whether the facts were stated with perfect accuracy or the reasoning from them was absolutely correct we need not stop to consider. The only question for us is whether it came to a right result. In reaching its conclusion the Circuit Court mentioned the drought from which that part of the country has suffered since the passage of this ordinance. At about that time the supply began to fall off. In December of the following year the reservoir was empty. The appellant asks us to take judicial notice that the rainfall has not been sufficient for the past five years to fill the storage reservoir of any large water company supplying water for irrigation in Southern California, but contends that the fact is immateral to the point before us. » Of course it is hard to answer the proposition that value expressed in money depends on what people think at the time, That determines what they will give for the thing, and whether they think rightly or wrongly, if they or some of them will give a certain price for it, that is its value then. Nevertheless, it has been held, under some circumstances, even in ordinary suits, that when events have corrected the prophecy of the public, the facts may be shown and a more correct valuation adopted. Twycross v. Grant, 2 C. P. D. 469, 544; Peek v. Perry, Ch. D. 541, 591 (not reversed on this point by 14 App. Cas. 337); Whiting v. Price, 172 Massachusetts, 240. See National Bank of Commerce v. New Bedford, 175 Massachusetts, 257, 262. We think that upon the question before us subsequent events may be considered. The facts mentioned would tend to depreciate the market value of the plant, and very much depreciate the value of the services rendered to consumers during the year when the ordinance necessarily was in force. This consideration is the only answer that needs to be made to elaborate calculations by the appellant of the worth of the serv ices to consumers, beyond adding that it does not appear t a SAN DIEGO LAND & TOWN CO. v. JASPER. 445 189 U. S. Opinion of the Court. the supervisors did not give them what little weight they deserve upon the issues which the supervisors had to decide. It is said that, if the drought is considered, the way in which it was met by digging wells and pumping also ought to be taken into account. That, however, was the private affair of the companv. It was a voluntary act for which additional charges were made, and has little or no bearing on the issue, less even than the drought, to which we do not attribute much. It seems, however, that soon after the first year consumers, in order to get pumped water, contracted to pay ordinance rates and an extra charge, by a voluntary arrangement with the company, and for all we know that voluntary arrangement may be going on to this day, and may be one reason why the company has not applied to have the rates revised. If the price paid by the present company for all the property was the fair value, the evidence available, such as the proportion between the valuations of the different parts by the company, the proportion between the assessment and taxation of the different parts and the testimony of an expert, indicates that the supervisors were liberal in valuing the plant at $350,000. Indeed, the proportion adopted is not a principal point of complaint. A subordinate complaint is made, however, that the rates will not yield a net income of six per cent, even upon the valuation adopted. The counsel for the appellees contends, on the other hand, that that valuation was a good deal too high, that too much was allowed under the head of expenses, that the supervisors should have taken into account income from domestic rates, and finally sets up a claim that goes to the bottom of the whole assessment. By an amendment of the California statute, approved March 2, 1897, the act is not to invalidate or to interfere with contract easements for the flow and use of water. It is contended that the owners of water rights described in Osborne v. San Diego Land de Town Co., 178 U. S. 22, which i is said now have been decided to be valid, {Fresno Canal rrigation Co. v. Park, 129 California, 437; San Diego Flume v. Souther, 90 Fed. Rep. 164; 104 Fed. Rep. 706 ; 112 Fed. ep. 228,) are entitled to water upon merely paying their share of 446 189 U. S. OCTOBER TERM, 1902. Opinion of the Court. the expenses, and that all the water takers have water rights. We shall say nothing on these points. We will say a word about the opposite contention of the appellant, that there should have been allowance for depreciation over and above the allowance for repairs. From a constitutional point of view we see no sufficient evidence that the allowance for six per cent on the value set by the supervisors, in addition to what was allowed for repairs, is confiscatory. On the other hand, if the claim is made under the statute, although that would be no ground for bringing the case to this court, it has been decided by the Supreme Court of California that the statute warrants no such claim. Redlands, Lugonia & Crafton Domestic Water Co. v. Redlands, 121 California, 312,313. We go no further into detail. We do not sit as a general appellate board of revision for all rates and taxes in the United States. We stop with considering whether it clearly appears that the Constitution of the United States has been infringed, together with such collateral questions as may be incidental to our jurisdiction over that one. From this point of view there is only one other matter to be mentioned. The supervisors in determining the rates assumed that the amount of water available for outside irrigation, apart from the amount used and paid for by National City, was enough for a little over 6000 acres, and on that point there is no serious dispute. Then they fixed the rates as if the company supplied this 6000 acres, although such was not the fact. Of course, the amount actually received for the water actually furnished was correspondingly less than the receipts as estimated by the supervisors upon their assumption. If there were no force in any of the arguments for the appellees which we have passed by, the result of this mode of estimate might be that the appellant did not get six per cent on the total value of its plant. But here again we have to distinguish between constitution and statute. If a plant is built, as probably this was, for a larger area than i finds itself able to supply, or, apart from that, if it does not, as yet, have the customers contemplated, neither justice nor the Constitution requires that, say, two thirds of the contemplate SOUTHERN PACIFIC R. R. v. UNITED STATES. 447 189 U. S. Syllabus. number should pay a full return. The only ground for such a claim is the statute taken strictly according to its letter. But when a case is brought here on a constitutional ground which wholly fails, we certainly shall not be astute to support it upon another which we could not consider apart from the failing foundation, and which has nothing to commend it but the letter of the law. The statute of California no doubt was contemplating the case of waterworks fully occupied within the area which they intended to supply. It hardly can have meant that a system constructed for six thousand acres should have a full return upon its value from five hundred, if those were all that it supplied. At all events we will not be the first to say so. If necessary to avoid that result we should assume that only a proportionate part of the system was actually used and useful within the meaning of the statute. Upon the whole case we are unable to say that the Circuit Court should have declared the rates confiscatory. They are the rates which were fixed by the original company at the start, with prophecies, which the purchasers who believed them think amounted to a contract, that they never would be higher. If the original company embarked upon a great speculation which has not turned out as expected, more modest valuations are a result to which it must make up its mind. Decree affirmed. SOUTHERN PACIFIC RAILROAD COMPANY u UNITED STATES. APPEAL FROM the circuit court of appeals foe the ninth CIRCUIT. No. 190. Argued March 9,10, 1903.—Decided April 6,1903. Southhe aCt °f March 3’ 1871 ’ C> 122’ 16 Stat" 573’ the riShts of the u lern Pacific Railroad Company were subordinate to those of the as acific Railroad Company. When the Texas Pacific grant was 448 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. declared forfeited by the act of February 28, 1885, the forfeiture did not vest the Southern Pacific with the lands forfeited but the forfeiture enured to the benefit of the United States. The case is stated in the opinion of the court. Mr. Maxwell Evarts and Mr. L. E. Payson for appellants. Mr. Special Attorney Joseph H. Call for appellee. Mr. Justice Holmes delivered the opinion of the court. This is a bill to quiet title brought by the United States against the plaintiff in error. It comes here by appeal from a decree of the United States Circuit Court of Appeals, 109 Fed. Rep. 913, affirming a decree of the Circuit Court, 94 Fed. Rep. 427, in favor of the United States. The United States claims under forfeiture of a grant made to the Texas Pacific Railroad Company in its charter, and the Southern Pacific Railroad Company under words in the same charter which are construed to make an incidental grant to it. The principal land in controversy is land within the place limits of the Southern Pacific under the said grant and within the twenty mile limit of the Texas Pacific, being land situated where the road of the former company and the contemplated track of the Texas Pacific met at Yuma on the Colorado River in the southeastern corner of California. The United States contends that this land was ex- cepted from the Southern Pacific grant. The charter is the act of March 3, 1871, c. 122, 16 Stat. 573. By § 9 it grants to the Texas Pacific by words in the present tense “ ten alternate sections of land per mile on each side o said railroad in California, where the same shall not have been sold, reserved, or otherwise disposed of by the United States, etc. By § 12, “ said company, within two years after the pas sage of this act, shall designate the general route of its sai road, as near as may be, and shall file a map of the same in Department of the Interior; and when the map is so filed, t e Secretary of the Interior, immediately thereafter, shall cause the lands within forty miles on each side of said designa SOUTHERN PACIFIC R. R. v. UNITED STATES. 449 189 U. S. Opinion of the Court. route within the Territories, and twenty miles within the State of California, to be withdrawn from preemption, private entry, and sale.” The Texas Pacific filed its map of general route in August, 1871, and in October, 1871, the Secretary of the Interior withdrew the odd sections according to the statute, including the land in question. By § 23 of this same charter, for the purpose of connecting the Texas Pacific Railroad with San Francisco, the Southern Pacific was authorized to construct a line to the Texas Pacific road at or near the Colorado River, “ with the same rights, grants, and privileges, and subject to the same limitations,” etc., as in the act of July 27,1866, “ Provided, however, That this section shall in no way affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company or any other railroad company.” It was decided in United States v. Colton Marble and Lime Co., 146 U. S. 615, that this proviso excluded the indemnity lands of the Atlantic and Pacific road and that the Southern Pacific took nothing in them, even after a forfeiture of the Atlantic and Pacific grant. But it is said that the Atlantic and Pacific had filed a definite location, and it is contended on several grounds that there is not a similar exception in this case. In the first place, it is denied that the Texas Pacific is included under the words last quoted: “ or any other railroad company.” But we think it too plain for extended argument that it is included by those words. It was called into being and was an “ other railroad ” at the moment when the proviso took effect. In fact, it was the only other railroad, so far as has been suggested to us, to which the words could apply. It received a grant for its main line, while that to the Southern Pacific was for a branch. By the contemplated junction of the latter with the former there would arise a conflict for which k was proper to provide, and natural to provide as the statute did. Next it is said that the Texas Pacific had no prospective nghts at the moment when the act was passed, and that is said to be the moment when her priorities were fixed. We cannot take the words of the proviso so narrowly. The Atlantic V°L- clxxxix—29 450 OCTOBER TERM, 1902. 189 U. S. Opinion of the Coui’t. and Pacific had not fixed its definite location when the act was passed, and yet in the decision which we have cited its indemnity lands were held excepted from the Southern Pacific grant. See United States v. Southern Pacific P. P., 146 U.S.570, 573; Southern Pacific Pailroad v. United States, 183 U. 8. 519, 522. As to the phrase “ prospective rights,” no doubt it is inartificial. The adjective changes the very nature of the substantive. A prospective right is not yet a right. It is only an expectation having a certain intensity of reasonableness. But it is plain, for instance, that when the lands were withdrawn along the general route of the Texas Pacific under § 12, that road had a prospective right to the whole of its place lands which the Southern Pacific could not affect by anything which it might do later. The statute is not governed by the ordinary rule as to contemporaneous grants. The Southern Pacific was not intended or allowed to interfere with what the Texas Pacific misfiit take, o The strength of the appellant’s case is in a somewhat attenuated line of reasoning. The Texas Pacific act refers to the act of July 27, 1866, for the rights conferred on the Southern Pacific. c. 278, 14 Stat. 292. The last mentioned statute is an act incorporating the Atlantic and Pacific Railroad Company. By § 18 the Southern Pacific is authorized to connect with the Atlantic and Pacific and is to have similar grants of land with that company. By § 6 there is a provision for the withdrawal of lands along the general route of the Atlantic and Pacific somewhat like that which has been mentioned as contained m § 12 of the Texas Pacific charter. It may be argued that it is implied by § 18 of the Atlantic and Pacific charter that there is to be a similar withdrawal of the land there granted to the Southern Pacific, and that this implied provision is carried oyer by a further implication to the grant to the Southern Paci c in § 23 of the Texas Pacific charter. The Southern Paci c filed the location of its general route in April, 1871, before t e filing by the Texas Pacific, and as the grant to the Texas Pacific by § 9 was only of lands not sold, reserved or otherwise disposed of by the United States, it may be said that the S°u ern Pacific has got a preference, much as the Texas ra SOUTHERN PACIFIC R. R. v. UNITED STATES. 451 189 U. S. Opinion of the Court. would have got one had the Southern Pacific done nothing before the Texas Pacific filed the location of its general route. It must be admitted that if this argument is correct in its premises it puts a good deal of a strain on the proviso in favor of the prospective rights of the Texas Pacific. For at the time when the Southern Pacific filed the location of its general route the prospective rights of the Texas Pacific were not determined otherwise than by its incorporation and the indications and promises in its charter. Nevertheless we are of opinion that the argument cannot prevail. It is only by a stretch that the provision for withdrawal of lands along the general route of the Atlantic and Pacific could be extended to the grant to the Southern Pacific in the Texas Pacific charter, and if it be so extended it is such a remote and probably unconsidered consequence of a reference to a reference that it cannot be allowed to outweigh the plain intent of the proviso in § 23, reinforced by the express arrangement for withdrawal in favor of the Texas Pacific in § 9. Assuming that proviso to refer to the Texas Pacific, it indicates a plain intent to except from the grant to the Southern Pacific the land that in the natural course of events would be covered by the location of the former road. The conflict of interests naturally would be limited to the point of connection at Yuma. There might be no other. As to that and, the plain object of the proviso was to avoid a race of diligence by giving priority to the main line of the chartered road over the connecting branch. Our decision is in accord with 1 e settled construction and practice in the Department of the nterior following a ruling of the late Mr. Justice Lamar when ’ecretary of the Interior. Texas Pacific Railroad and Southern Tadfic Railroad, 4 L. D. 215. P ^eXas Pacific grant was declared forfeited by the act of , e J’uary 28, 1885, c. 265,23 Stat. 337, and this forfeiture enured n benefit of the United States. United States v. Southern ^fic Railroad, 146 U. S. 570. It is argued further, however, that if the Southern Pacific did not get the lands in ques-^on under its primary grant, it may take a part of them as in-^an(^s’ is sa^ that the company has a right to take eni or that purpose if the status of the lands at the time of 452 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. selection permits it. Ryan n. Railroad Co., 99 U. S. 382. That contention seems to be disposed of by Southern Pacific Rail/road v. United States, 168 U. S. 1, 47, 66, and the practice of the Land Department for many years has been inconsistent with it. Southern Pacific Railroad v. Moore, 11 L. D. 534; Moore v. Kellogg, 17 L. D. 391; Smead v. Southern Pacific Railroad, 29 L. D. 135. When it is decided that the company got no title to the land within its twenty mile limit, it would be contrary to the intimations of the cases to allow it to take the adjoining strip outside under a claim of indemnity. See Bardon v. Northern Pacific Railroad, 145 U. S. 535, 545; Clark v. Herington, 186 U. S. 206. It is not clear that the language of the statute does not forbid it. The indemnity to the Atlantic and Pacific, by § 3 of its charter adopted for the Southern Pacific by § 18, is to be other lands “ in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers.” It might be argued that the last quoted words dispose of the matter. Without going into further reasons for our decision, we are of opinion that the decree appealed from was right. We deal only with the questions argued in this court. Decree affirmed. Mr. Justice Brewer and Mr. Justice Day took no part in the decision of this case. 453 189 U. S. THE PAQUETE HABANA. Argument for the United States. THE PAQUETE HABANA. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA. Nos. 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589* Argued March 19, 1903.—Decided April 6,1903. This court having decided in The Paquete Habana, 175 U. S. 677, that certain fishing smacks engaged in coast fishing for the daily market were not liable to capture, and ordered that the proceeds of vessels and cargoes be restored to the claimants with compensatory and not punitive damages and costs, and it appearing that the damages allowed were excessive, the cases were remanded to the District Court for further proceedings. Under the circumstances of this case the decree should be entered against the United States and not against the captors individually. The case is stated in the opinion of the court. Nr. Solicitor General Hoyt for the United States. The court is free to weigh and settle the facts here uncon-trolled by subordinate findings. The inquiry is whether the court is satisfied by the whole evidence. The Vigilantia, 1 Rob. 1 ; The Soglasie, Spinks, 104 ; The Carlos F. Boses, 177 U. S. 655. The Vigilantia and The Soglasie exhibit the reasonable doubt of courts respecting the certificates of national Magistrates presumably complaisant toward their countrymen. Early cases in this court show that the court handles such awards with great freedom, allowing some items and rejecting others, in the exercise of its discretion. The Apollon, 9 Wheat. 362; The Lively, 1 Gall. 315 ; The Charming Betsy, 2 Cr. 64; Maley y. Shattuck, 3 Cr. 458 ; The Amiable Nancy, 3 Wheat. 546. The claims are excessive and unconscionable, and the evi-J^e i'1 support of them unsatisfactory and inconclusive. The No. 578. Uniied States v. The Paquete Habana ; No. 579. Same v. The No. 580. Same v. The Poder de Dios ; No. 581. Same v. The Antonio L aco ; No. 582. Same v. The Engracia ; No. 583. Same v. The Severità ; 70, 584. Same v. The Antonio Suarez ; No. 585. Same v. The Fernandito ; 0-586. Same v. The Oriente ; No. 587. Same v. The Espana ; No. 588. Same v- -Tfee Cuatro de Settembre ; No. 589. Same v. The Santiago Apostol. 454 OCTOBER TERM, 1902. Argument for the United States. witnesses are in the highest degree interested, and the inference of a combination of interest throughout the casesis irresistible. The reappearance of the same witnesses and claimants in different cases, and the corporate relations shown suggest that the ownership of these boats and the handling of their catch constituted a sort of Havana “ fishing trust.” The interrogatories called for candid and complete answers. Forgetfulness, failure to keep books, the omission to furnish bills of sale, statements about documents which the documents do not support— these things find no excuse in the form of the interrogatories. It was for the claimants to support their claims absolutely and completely. The harbor master’s certificate is given as to all the vessels on the same day, long after the final condemnation below, appraising them as of the same date prior to the war. That officer admittedly acts as an expert appointed by the two firms chiefly' interested to appraise the value of their respective fishing smacks. His testimony and certificate should not be accepted as a veritable and reasonable statement of the value of the vessels. Sufficient appears fairly to require the court to reject the exaggerated claims, and, indeed, sufficient appears to enable the court, justly and understandingly to fix the point between the prices realized at the government sale and the amounts claimed, which will give restitutio in integrum. If the court thinks that a satisfactory basis of readjustment and settlement is not yet before it, then we submit that the cases should go back to the court below for further inquiry. As to the naval captors’ liability, The Ostsee, Spinks, U4, fully reviews the principles and authorities. The captors seize at their peril; they7 take the burden and the risk along with the possible benefits. The only question is whether t e claimants are in fact entitled to restitution with damages an costs. The Ostsee decided that captors are liable; that they may afterwards be indemnified at the expense of the pu . makes no difference in the rule. They7 cannot be so in em fled by means of a judgment against the United States, for Congress to relieve them. The cases in this court, ur^ . v. The Charming Betsy, 2 Cr. 64 ; v. Barreme, 2 Or. > Maley v. Shattuck, 3 Cr. 458, show that the seizors have THE PAQUETE HABANA. 455 189 U. S. Argument for the United States. ways been held liable for restitution in value. The distinctions and qualifications as to government exemptions from liability, The Siren, 1 Wall. 162, speak for themselves and do not comprehend the present cases. The same remark is true of The Nuestra Señora de Regla, 108 U. S. 96, in which the reduction of the claim is significant, and the original hearing is instructive on the general doctrine of the government exemption from liability in the courts. The Government by its commission and war instructions authorizes capture, but does not thereby adopt the acts of its officers as its own, or condone their errors, or assume the liability arising upon their wrongful acts, however “ pure in intention ” the wrong may be. Such an idea is flatly contrary to all the principles of government exemption from suit and responsibility for the acts of its officers and agents except so far as it has expressly made itself liable.. The Government grants prize rights to captors, and libels on behalf of captors and itself. The Government may restore, even after libel filed, at any time before condemnation ; that fact would give disappointed captors no claim against the Government. If the executive should determine to recognize a diplomatic claim (which may be interposed after condemnation) that does not summon the captors to respond. Equally, if there is a judicial decree of restitution with damages and costs, that does not call upon the Government to respond because it files the libel and is the formal party plaintiff. The “ captors,” that is, the actual commander of the offending vessel representing all of his subordinates, must meet the responsibility of the illegal act of seizure. Mistaken practice in the lower courts or inferences from par-icular acts of Congress granting indemnity cannot avail to overturn an established rule. As in England the appeal for relief is to Crown or Parliament, here it is to Congress. The courts cannot recognize that appeal by giving judgment against e United States, even if it should be a nugatory judgment not subject to execution. We urge with conviction that any award to claimants here must rest upon the various naval cap-tors and not upon the United States. 456 OCTOBER TERM, 1902. Argument for Claimants. 189 U. S. J/a e7. Parker Kirlin for claimants. I. No sufficient ground for the reversal of the decree is shown, so far as the quantum of the damages is concerned. 1. There is no serious dispute as to the principle on which the damages are to be assessed. The claimants are entitled to “ fair indemnity for the losses sustained by the seizure.” The Nuestra Señora de Regla, 17 Wall. 29, 31. The owners of the vessels- being Cubans, and the vessels having been seized in Cuban waters when about to enter Cuban ports, the damages are naturally to be measured with reference to the value of the vessels and property in Cuba rather than in the United States. Rates v. Clark, 95 U. S. 204,210. The damages to be awarded should be equivalent to the injury sustained. The Lively, 1 Gallison, 315; Hetzel v. Baltimore Ohio Ry. ,169 U. 8. 26. This principle is impliedly recognized in the mandates issued under the previous decision, which provided that the damages should be “ compensatory.” The assessment of the damages was referred by consent to the commissioner. His conclusions, therefore, will not be disturbed, unless they are clearly in conflict with the weight of the evidence. The Elton, 83 Fed. Rep. 519,520; Kimberley v. Arms Co., 121 U. S. 512, 524; Davis v. Schwartz, 155 U. S. 631, 636; Crawford v. Neill, 144 U. S. 585, 596; Furrer v. Ferris, 145 U. S. 131. Even if the reference had not been made on consent, the conclusions of the commissioner on matters of fact would still be entitled to much weight. Tilghman v. Proctor, 125 U. S. 136,149. The District Judge heard argument on the libellant’s exceptions to the report, and, after consideration, overruled them and confirmed the report. The case comes before the court, therefore, with the concurrent finding of the commissioner and the court in favor of the claimants. Under these circumstances the court should decline to interfere with the amoun of the decrees, unless manifest error appears. The Ship MW' cellus, 1 Black, 414; The Conqueror, 166 U. S. 110, 136. 2. The evidence produced on the part of the claimants con sisted of the depositions of the owners of the vessels and of t e harbor master in the port of Havana in relation to the value THE PAQtfETE HaEaNA. 45? 189 U. S. Argument for Claimants. of the vessels, and. of certain disinterested fish merchants as to the value of the fish. The evidence of the libellant consisted, for the most part, of the depositions of witnesses who did not profess to have any acquaintance with the value of fishing vessel propertv. The commissioner heard some of the witnesses for the Government, but accepted the evidence of the claimants’ witnesses as more accurate and reliable. It is contrary to the practice of the court to reverse a decree where both courts below have concurred in the decision of questions of fact, and the result arrived at depends on the number or credibility of witnesses. The Richrnond, 103 U. S. 540, 543. 3. The exceptions to the commissioner’s report are insufficient to raise any question as to the amount of the damages. The exceptions were: “First, that the amount allowed as compensatory damages for the following vessels, and each of them, is excessive and not sustained by the evidence; ” and, “ Second, that the value of each of said vessels ... as ascertained by the commissioner is contrary to the evidence.” No suggestion was made as to the amount which the United States attorney thought the evidence would justify as an allowance for compensatory damages. Exceptions expressed in almost identical terms were held to be insufficient in The Com-mander-in-Chief 1 Wall. 43, 50. 4. The status of the claimants does not affect their right to receive full compensation. Even if the claimants were technically in the position of enemies at the time of the captures, the court has, nevertheless, determined that their property was entitled to exemption from capture. In awarding compensation, therefore, the property is to be dealt with in the same manner us the property of friends. If its value was enhanced by reason of the war, that fact would not be material in measuring the damages except as showing the values current at the time when the right to compensation accrued. The right to compensation has been determined, and the damages are to be measured by the value of the property at the time of the capture, with interest and costs. If that value was enhanced by the military or naval operations of our Government, the claimants are, never 458 OCTOBER TERM, 1902. Argument for Claimants. 189 U. S. theless, entitled to be paid at the enhanced amounts; for they represented the value which the property would have possessed, and at which, presumably, it could have been disposed of, but for the unlawful capture and condemnation. These observations apply alike to the valuations of the vessels, and to the current price for the fish, at the time of the capture, as to which there is no dispute. 5. There was no error in the award of interest, or the rate at which it was allowed. No question on that subject, however, is properly before the court. There was no exception to the report of the commissioner as to the rate of interest, or as to the propriety of allowing it. Nor is there any assignment of error to the final decrees on this subject. Without any exception or assignment of error on the subject, no question relating to interest appears to be before the court. The Commander-in-Chief, 1 Wall. 43. Interest has always been allowed in cases of this class, not only against private captors, but against the United States. The Apollon, 9 Wheat. 362, 376, 379, 380; The Charming Betsy, 2 Cranch, 64, 125 ; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 3 Wheat. 546, 562, 563; The Nuestra Señora ele Regla, 108 ü. S. 92, 104. The records in the cases of The Labuan, Blatchford’s Prize Cases, 165; The Glen, Blatchford’s Prize Cases, 375 ; The Sybil, Blatchford’s Prize Cases, 615, show awards of interest against the United States and the captors jointly. The allowance of interest was within the fair scope of the mandates as a part of the “compensatory damages ” to be recovered. In allowing the legal rate of eight per cent, which prevails by statute in the Southern District of Florida, the court followed the practice which is sanctioned by this court. Texas Pacific Ry. Co. v. Anderson, 149 U. S. 237, 242; The Cone-, maugh, ante, p. 363; Huey v. Macon Co., 35 Fed. Rep. 431; 1 Sedgwick on Damages, 8th ed. sec. 339. There can be no presumption that the rate of interest in Cuba, during or im mediately following the war, when financial conditions were, notoriously, in an extremely unsettled condition, was e TSE FAQUETE SABANA. 459 189 U. S. Argument for Claimants. than the legal rate prevailing in the district in which the final decrees in these cases were entered. II. The District Judge committed no error in deciding that the compensatory damages awarded to the claimants under the mandate of this court were payable by the United States. 1. It appears to have been determined by the previous decision of the court that the compensatory damages awarded are to be paid by the U nited States. It would seem that the only parties to these causes are the United States on the one hand, and the claimants of the vessels on the other. Section 4618 of the Revised Statutes provides that “upon receiving the report of the prize master directed by the preceding section, the attorney of the United States for the District shall immediately file a libel against such prize property, and shall forthwith obtain a warrant from the court directing the marshal to take it into his custody, and shall proceed diligently to obtain a condemnation and distribution thereof.” Section 4630 provides that “ the net proceeds of all property condemned as prize shall, when the prize was of superior or equal force to the vessel or vessels making the capture, be decreed to the captors; and when of inferior force, one half shall be decreed to the United States and the other half to the captors.” In pursuance of these provisions libels were filed by the United States, through its attorney for the Southern District of Florida, in all the cases, and in the original decrees of condemnation it was “ ordered, adjudged and decreed that the said s^oop . . . and cargo are condemned and forfeited to the United States as lawful prize of war.” Certain naval officers filed their depositions in the cases, claiming shares of the prize money. Any intervention of this character, however, is permissible only after final decree of condemnation, and is authorized only for the purpose of enabling the court to make distribution of the proceeds of the prize. Rev. Stat. §§ 4631,4634. It seems oubtful, to say the least, that claims to distributive shares of that portion of the prize money which, under the statutes, falls to the captors, make the officers who present them parties to the cause. 460 OCTOBER .TERM, 1902. Argument for Claimants. 189 Ü. S. The parties who were before this court on the previous appeal were, therefore, the claimants of the vessels on one side, and the United States on the other. As between those parties the court decreed in each case that “ the decree of the District Court be reversed and the proceeds of the sale of the vessels, together with the proceeds of any sale of her cargo, be restored to the claimants with damages and costs.” The Paquete Habana, 175 U. S. 677, 714. On a subsequent day the court on motion of the Solicitor General, ordered “ that the decree be so modified as to direct that the damages to be allowed shall be compensatory only and not punitive.” 175 U. S. 677, 721. This is the judgment of the court between the only parties who were before it. The plain effect of the decision appears to be that the court determined that the compensatory damages to be recovered by the claimants were to be paid by the United States. This determination must be taken as final and conclusive throughout the subsequent stages of the litigation. The Nuestra Señora de Regla, 108 U. S. 92, 100; Ciarle v. Keith, 106 U. S. 464; Supervisors v. Kennicott, 94 U. S. 499; The Lady Pike, 96 U. S. 461. No motion was made to amend the mandate so as to provide, if it had been competent to do so, that the judgment should be against the captors as well as the United States, or that it should be against the captors alone. In the absence of such an amendment the District Court had no power or authority to enter any decree, except against the libellant of record. In re Potts, 166 U. S. 263, 265, 267-268. 2. If it be considered that the court below had authority, m executing the mandate, to enter a decree against the captors alone, or against the United States and the captors jointly, it was, nevertheless, justified by the practice and by precedent in entering decrees against the United States alone, as was done. It is the settled practice in prize cases, where restitution is ordered with damages, to assess and award the damages in t e original cause against the libellants therein. This was done without question in cases that arose prior o 1861. The Cha/rming Betsy, 2 Cranch, 64; The Amiab 6 THE PAQUETE HABANA. 461 189 U. S. Argument for Claimants. Nancy, 3 Wheat. 354 ; The Apollon, 9 Wheat. 362. The rule was recognized by Congress in the act concerning letters of marque, prizes and prize goods, passed June 26, 1812. 2 Stat. 759, 761. Since the enactment of the prize acts of August 6, 1861, 12 Stat. 319; March 3,1863, 12 Stat. 759 ; and June 23,1864; Rev. Stat. §§ 4613, 4652, it has been the practice to file all libels in prize causes in the name of the United States. No case has been found in which the United States appears as libellant and damages for unlawful capture have been awarded against the naval captors. On the contrary, the practice, since 1861, has been to award the damages against the United States alone, or, in cases where the captors have intervened before condemnation and asked to be made co-libellants, against the United States and the naval captors jointly. The records on file in a number of cases in the District Court for the Southern District of New York in which the United States was libellant and the captors intervened and joined in the prayer for condemnation, show that judgment was entered jointly against the United States and the captors in the following form: “ It is ordered and adjudged . . . that final judgment be, and the same is hereby, rendered in the above cause in favor of the claimants of said vessels and cargo against the libellants and captors for the sum of $ The Glen, Blatchf. Prize Cases, 375, final decree entered by Betts, J., October 24, 1863 ; The Labua/n, Blatchf. Prize Cases, 165, final decree entered by Benedict, J., March 25, 1868 ; The Sybil, Blatchf. Prize Cases, 615, final decree entered byBlatch-f°rd, J., March 2,1868. In all these cases Congress passed appropriations to pay the decrees. 13 Stat. 575; 16 Stat. 649 ; 16 Stat. 650. Judgment was directed against the United States alone in The Nuestra Señora de Regla, 108 U. S. 92. The liability of the United States in such cases appears to be recognized by implication in Rev. Stat. § 4640. 3. The United States, by entering the forum as an actor, and prosecuting to condemnation, for its own and its agents’ joint Use, vessels whose unlawful capture it had ratified and con 462 OCTOBER TERM, 1902. Argument for Claimants. 189 U. S. firmed, has submitted itself voluntarily to the jurisdiction of the court, and is bound, under the universal practice in prize causes, to compensate the claimants for their loss. These are not actions of tort against the United States. They are mere claims for the restitution of property which the Government has unlawfully taken from private individuals. The principle involved is that property which one has wrongfully taken shall be returned, or if, by the procurement of the wrongdoer, it cannot be returned in specie, its value should be returned. If the Government had taken the vessels and applied them to its own use, instead of procuring them to be condemned and sold, without legal right, there could be no question that it would be bound to return them, or their value. United States v. Russell, 13 Wall. 623; Clark v. United States, 95 U. S. 539. It may be that this is the principle which underlies the decision in The Nuestra Señora de Regla, 108 U. S. 92. Nor could there be any question of the right of the prize court to order the United States to restore the vessels, if they still remained in specie and were subject to its control. It would appear to be an extreme refinement of principle which would deprive the court of jurisdiction to determine that the United States should refund the value of the property unlawfully taken, simply because it is now beyond the power of the Government, solely in consequence of its own action, to return the vessels themselves. No claims are made against the Government, beyond the value of the property against which it proceeded and which it caused to be condemned. They are, in substance, merely claims for restitution. Properly speaking, they are not affirmative demands against the Government for damages arising ex delicto-The authorities, in which the immunity of the United States from tort actions is asserted, appear to have no real application to these controversies. . . The court, in previous decisions, has recognized the liab i V of the Government to the extent of the value of the proper y involved, where it has voluntarily submitted itself to the jur^ diction of the court as a plaintiff against such property. THE PAQUETE HABANA. 463 189 U. S. Opinion of the Court. Siren, 7 Wall. 152, 154, 159; Carr v. The United States, 98 U. S. 436, 438; Clark v. Barnard, 108 U. S. 436, 448; Cunningham v. R. R. Co., 109 U. S. 446, 452; The Nuestra Señora de Regla, 17 Wall. 29 ; 108 U. S. 92. The English courts also recognize the principle that a sovereign otherwise exempt from suit, may subject itself to judgment in a cross-suit, if it invokes the jurisdiction of the court as a plaintiff. The Newbattle, 10 Prob. Div. 33, 35 ; King of Spain v. Hallet, 2 Bligh (N. S.), 31, 57. 4. No error has been assigned to the decision of the court below in awarding the damages against the United States alone, instead of against it and the naval captors jointly. No application was made to the court below for a decree against the libellant and the naval captors jointly. No such application could, properly, have been made, for the reason that the naval captors did not intervene as co-libellants and join in the prayer for condemnation. The Revised Statutes do not contemplate or permit an intervention of that nature. Rev. Stat. §§ 4630, 4631, 4634. The only contention presented by the United States attorney on this subject, was that the decree should be against the naval captors alone. There can be no question it would seem, that the court below rightly decided, on the record as it stood, against that contention. The naval captors had, it is true, taken and brought in the vessel; but their action had been ratified and confirmed by the United States. Under the prize acts, ratification of the captures by the Government, which founded libels thereon, may well be taken as relieving the naval captors from liability, even if they had been before the court as parties. La/mar v. Brown, 92 U. S. 187; Dobree v. Napier, 2 Bing. N. C. 781. Joint decrees against the libellant and the captors would have been of advantage to these claimants, but as the record stood there appeared to be no ground for asking the court to enter them in that form. Me. J ustice Holmes delivered the opinion of the court. These are cases of fishing smacks, which were libelled as 464 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. prize of'war. The proceedings in all the cases are similar and the evidence to a large extent the same. It was decided by this court in two of the cases, Paquete Hdbana and Lola, 175 U. S. 677, that smacks of this sort, engaged as these were, in coast-fishing for the daily market, were not liable to capture, and decrees were ordered that the proceeds of the vessels and cargoes be restored to the claimants, with damages and costs. On motion of the United States it was ordered that the decrees be mod ified so as to direct that the damages should be compensatory only and not punitive. Decrees were entered in each of the above-named cases by the District Court in pursuance of this mandate, and agreements between the United States, the cap-tors and the claimants were filed, that the damages should be charged against the United States or the captors, or apportioned, “as to justice may appertain and as the legal responsibility therefor may appear; ” saving the right to review the decrees as to amount and as to where the ultimate responsibility rested. The papers do not disclose such an agreement in the Cuatro de Settembre, but as the records so far as similar to the first two cases were not printed, we assume that the omission was only in the index, and that it was understood that this case should stand like the rest. The cases were referred to a commissioner to report the amount of damages. He reported his findings and the evidence. The United States excepted to the findings as excessive. The District Court entered decrees against the United States for the amounts, and the United States appealed on the grounds that the decrees should have gone against the captors and not against the Government, and that the damages were excessive and the exceptions to the commissioner’s repot should have been sustained. We do not see how it is possible that a decree should be en tered against the captors. There was no formal intervention by them, and whether a decree can be made against the Unit States or not, it has so far adopted the acts of capture that i would be hard to say that under the circumstances of t ese cases' it has not made those acts its own. It is not dispu e that the United States might have ordered the vessels to e released. It did not do so. The libels were filed by the Uni 465 189 U. S. THE PAQUETE HABANA. Opinion of the Court. States on its own behalf, praying a forfeiture to the United States. The statutes in force seemed to contemplate that form of procedure, Rev. Stat. § 4618, and such has been the practice under them. The libels alleged a capture pursuant to instructions from the President. The captures were by superior force, so that that there was no question that the United States was interested in the proceeds. Rev. Stat. § 4630. The modification of the decrees in regard to damages, on motion by the U nited States, imported a recognition of the interest of the United States in that matter, and its submission to the entry of decrees against it. The agreements to which we have referred had a similar import, although they indicated an awakening to a determination to argue the form of the decree. In the case of Little v. Bárreme, 2 Cr. 170, conversely to this, the United States was not a party and the captor was. All that was decided bearing upon the present point was that instructions from the President did not exonerate the captor from liability to a neutral vessel. As to even that the Chief Justice hesitated. But we are not aware that it is disputed that when the act of a public officer is authorized or has been adopted by the sovereign power, whatever the immunities of the sovereign, the agent thereafter cannot be pursued. Lamar v. Browne, 92 U. S. 187, 199; and as to ratification, Buron v. Denman, 2 Exch. 167, 187, 189; Secretary of State in Council of India v. Kamachee Boye Sahaba, 13 Moo. P. C. 22, 86. See Dempsey v. Chambers, 154 Massachusetts, 330, 332. The principle and authority of Buron n. Denman was recognized and followed by the Court of Claims in Wiggins v. United States, 3 C. Cl. 412, 423. If we are right so far, we think that under the circumstances of this case a decree properly may be entered against the United tales. The former decree of this court remains in force and requires a final decree for damages. Be Potts, 166 U. S. 263, 65; McCormick v. Sullinant, 10 Wheat. 192, 200. The decree ®iust run against the United States if a decree is to be made, n The Buestra Señora de Begla, 108 U. S. 92, 102, the court was of opinion that the United* States had submitted to the juris iction of the court so far as to warrant the ascertainment of amages according to the rules applicable to private persons in vol. clxxxix—30 466 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. like cases. It seems to us that the facts here are not less strong. Decrees in cases which disclose no special circumstances have been recognized by subsequent statutes providing for their payment. Glen, Blatchf. Prize Cases, 375, act of Feb. 13,1864, c. 10, 13 Stat. 575; Ldbuan, Blatchf. Prize Cases, 165, act of July 7, 1870, c. 220, 16 Stat. 649; Sybil, Blatchf. Prize Cases, 615, act of July 8, 1870, c. 231, 16 Stat. 650; Flying Scud, 6 Wall. 263, act of July 7, 1870, c. 219, 16 Stat. 649. See also 16 Stat. 650, c. 232; 651, c. 234. We pass, then, to the other ground of the appeal. With regard to this it is objected that the exceptions to the master’s report are not sufficient to open the question; referring to Commander-in-Chief, 1 Wall. 43, 50. But the objection being the general one that the evidence did not warrant the finding and all the evidence being attached to the report nothing more is needed. On the amount of the damages we are of opinion that further proceedings must be had. We do not forget the weight that is given to the findings of a master or commissioner upon matters of fact. But this weight is largely, although not wholly, due to the opportunity, which we do not share, of seeing the witnesses. So far as the commissioner disregarded the testimony of the witnesses whom he saw we should hesitate to overrule his conclusion, although it seems too absolute on the grounds set forth. But the result reached is based on documentary evidence which is before us, and as to which we have equal opportunities for forming a judgment. It appears to us plain that this evidence was given undue weight. The source from which it comes and the high valuations require that it should betaken with considerable reserve. The commissioner had a right, which he seems to have thought that he did not possess, o chancer the estimates. He adopted the owners’ prices without qualification. The certificate of the harbor master of Havana is dated November 23,1898. It does not purport to be a copy of any earlier record. It is true that he makes his valuation as of March 1, 1898, but he does not say either in the certificate or in his testimony that he made that valuation at that or any o|her date before November 23. We shall not go over e THE PAQUETE HABANA. 467 189 U. S. Opinion of the Court. other evidence in detail. Some at least of the vessels were old. The Paquete Habana, for instance, at least eighteen or twenty years. One half interest was bought in 1892 for $2400. She is valued in 1898 by owners, harbor master and commissioner at S4500. The Lola was purchased “ at a .cheap price,” according to the owner, in 1887. The valuation of some of the other smacks is above the price said to have been paid for them in earlier years. In the case of the Espana it appears that she was about fourteen years old, and cost when built ten thousand dollars. She is valued by the owners and harbor master, agreeing as usual, at $9000. The commissioner adopts this valuation. Yetitappears that, the vessel was resold to the owners for $2500. Whether this price was a fair value or not, and the owners would not give more, the result of the sale was that they had their boat back again. It is apparent, therefore, that their actual loss was only what they had to pay to get it, the loss from detention of the boat and any wear and tear and changes that it had undergone in the meantime. In a case of the present kind it would be going beyond the requirements of justice into the realm of very doubtful technicalities to disregard the fact that the vessel got back because it was due to a subsequent transaction with a stranger. There is some evidence that the same thing happened in some or all of the other cases. See The Lively, 1 Gall. 315, 321. The fish are allowed for at the highest price in Havana during the blockade, which is too high a rate, and interest was charged at eight per cent, there being no reason apparent for c arging more than six if interest was allowed. See Lincoln v. flin, 7 Wall. 132, 139; The Amalia, 34 L. J. Adm. 21; trdker v. Hartland, 2 Hem. & Mil. 570 ; Frazer v. Bigelow arpet Co., 141 Massachusetts, 126. These are details, but they ! °'v what is manifest throughout, that the owners’ demands ave been accepted without discrimination on evidence which °es not justify the result. We think that we have said enough to show that a revision of the findings is necessary. It seems to us better that is revision should take place in the District Court rather than 468 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. be attempted by us. Whether further evidence shall be taken we leave to the parties and to that court. Decrees reversed and cases remanded for further proceeding in accorda/nce with this opinion. TEXAS AND PACIFIC! RAILWAY COMPANY v. BEHYMER. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 224. Argued March 20, April 6,1903.—Decided April 20,1903. In an action for personal injuries sustained by a brakeman by falling from a car, where the claim was based upon negligence in stopping the car suddenly with knowledge of his position and of the slippery condition of the roof of the car, and also upon the projection of a nail in the roof of the cat which increased the danger and contributed to his fall, held, there was no error in the court declining to rule that the chance of such an accident was one of the risks assumed by the plaintiff, or that the question whether the defendant was liable depended on whether the freight train was handled in the usual and ordinary way. It was proper for the cour to leave it to the jury to say whether the train was handled with due care. The case is stated in the opinion of the court. J/r. D. D. Duncan for plaintiff in error. J/a John F. Dillon and Mr. Winslow S. Pierce were on the brief. Mr. Cone Johnson for defendant in error. Mb. Justice Holmes delivered the opinion of the court. This is an action for personal injuries brought by an against a railroad company. It was tried in the Circuit Cour, where the plaintiff had a verdict. It then was taken to Circuit Court of Appeals on a writ of error and bill of excep TEXAS & PACIFIC RY. CO. v. BEHYMER. 469 189 U. S. Opinion of the Court. tions by the company, 112 Fed. Rep. 35, and now is brought here on a further writ of error, the company being a United States corporation. A good deal of the argument for the railroad is devoted to disputing the testimony of the plaintiff below and arguing that the verdict was excessive, but of course we have nothing to do with that. New York, Lake Erie de Western Railroad v. Winter, 143 U. S. 60, 75; Lincoln v. Power, 151 U. S. 436. We must assume the most favorable statement of the plaintiff’s case to be true, unless some particular request for instructions makes it necessary to deal with conflicting evidence. That statement may be made in a few words. Behymer had been in the employ of the company as a brakeman about three months. On February 7,1899, at Big Sandy, in Texas, he was ordered by the conductor of a local freight train to get up on some cars standing on a siding and let off the brakes, so that the engine might move them to the main track and add them to the train. The tops of the cars were covered with ice, as all concerned knew. He obeyed orders; the engine picked up the cars, moved to the main track and stopped suddenly. The cars ran forward to the extent of the slack and back again, as they were moving up hill. The jerk upset Behymer’s balance, the bottom of his trousers caught in a projecting nail in the running board and he was thrown between the cars. It is true that the jury might have drawn a different conclusion from his evidence or have disbelieved it in essential points, but they also were at liberty to find, as they must be taken to have found, that the foregoing statement is rue. The car belonged to another road but was in the charge °f the defendant company, and, according to the statement of the counsel for the plaintiff in error, had been inspected before * e accident, although we should have doubted whether the estimony meant to go so far. Behymer based his claim upon negligence in stopping the cars so suddenly with knowledge of is position and the slippery condition of the roof of the car, an upon the projection of the nail, which increased the danger dn contributed to his fall. It should be added that by a 8 atute of Texas if there was negligence the fact that it was the 470 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. negligence of a fellow servant was not a defence. General Laws, Texas, 1897, Special Session, c. 6, § 1; 2 Sayles, Texas Civil Stat. 1897, art. 4560/*. The fundamental error alleged in the exceptions to the charge is that the court declined to rule that the chance of such an accident as happened was one of the risks that the plaintiff assumed, or that the question whether the defendant was liable for it depended on whether the freight train was handled in the usual and ordinary way. Instead of that, the court left it to the jury to say whether the train was handled with ordinary care, that is, the care that a person of ordinary prudence would use under the same circumstances. This exception needs no discussion. The charge embodied one of the commonplaces of the law. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. Wabash Railway Co. v. McDaniels, 107 IT. S. 454. No doubt a certain amount of bumping and jerking is to be expected on freight trains, and, under ordinary circumstances, cannot be complained of. Yet it can be avoided if necessary, and when the particular and known condition of the train makes a sudden bump obviously dangerous to those known to be on top of the cars, we are not prepared to say that a jury would not be warranted in finding that an easy stop is a duty. If it was negligent to stop as the train did stop, the risk of it was not assumed by the plaintiff. Texas <& Pacific Ry-v-Archibald, 170 IT. S. 665, 672. However, the plaintiff did not rely on the management of the train alone. The projecting nail was another element m his case. The jury were instructed with regard to that, tha, the railroad company was not liable unless there was a nai there improperly projecting, and a reasonable inspection wou have discovered and remedied the defect. The car was in the custody of the company. There is no suggestion that the com pany had not had an opportunity to inspect, and the contrary was assumed by a request for instructions on the part of t e company. Indeed, as wTe have said, its counsel interprets evidence as meaning that the car had been inspected be ore UNITED STATES r. SWEET. 471 189 U. S. . Syllabus. the accident. It is not pressed that there was error on this point. See Mackin v. Boston <& Albany Railroad, 135 Massachusetts, 201 ; Glynn v. Central Railroad., 175 Massachusetts, 510, 512. The jury were instructed properly on the subject of assumption of risks and contributory negligence, and we think it unnecessary to deal more specifically with this part of the case. It was argued that Behymer had aggravated the injury by refusing proper surgical treatment. With regard to this the jury were instructed in substance, but at more length, that it was his duty to submit to all treatment that a reasonably prudent person would have submitted to in order to improve his condition, and that no damages could be allowed which might have been prevented by reasonable care. It is suggested that, as a prudent man, he might have postponed recovery from his injury to recovery of damages. The instructions plainly excluded such a view. The argument hardly is serious. We have examined all the minute criticisms on the rulings and refusals to rule, and discover no error. We deem it unnecessary to answer them in greater detail. Judgment affirmed. UNITED STATES v. SWEET. APPEAL FROM THE COURT OF CLAIMS. No. 236. Argued and submitted April 15,1903.—Decided April 27,1903. An officer of volunteers in the United States Army who tenders his resignation and is honorably discharged is not entitled to travel pay and commutation of subsistence, under Rev. Stat. § 1289, as amended by the act of February 27, 1877, c. 69, 19 Stat. 243, from the place of his discharge to where he was mustered in. his decision is in accord with the settled practice of the War Department and the Treasury which has been to deny these allowances when the officer or soldier is discharged at his own request, for his own pleasure or convenience. The weight of a contemporaneous and long continued construction of a statute by those charged with its execution is well recognized in cases open to reasonable doubt. 472 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. The case is stated in the opinion of the court. Submitted by J/r. Assistant Attorney General Pradt and Mr. Franklin W. Collins for appellant. Argued by J/r. George A. King for appellee. Mr. William B. King was on the brief. Mr. Justice Holmes delivered the opinion of the court. This case comes here by appeal from a judgment of the Court of Claims in favor of the petitioner, Sweet. The petitioner was a second lieutenant of volunteers in the United States Army, tendered his resignation, and was honorably discharged on October 15, 1898. He was mustered into the service at St. Paul, Minnesota, his residence being Minneapolis. The place of his discharge was Camp Meade, Pennsylvania. He was not furnished transportation or subsistence, but returned to bis residence at his own expense, and later brought this petition to recover travel pay and commutation of subsistence under Rev. Stat. § 1289, as amended by the act of February 27, 1877, c. 69, 19 Stat. 243, 244. That section allows the items demanded “ when an officer is discharged from the service, except by way of punishment for an offence. The question whether the statute extends to cases like the present has been before this court twice, but has not been decided authoritatively. In one case the court was equally divided, United States v. Price, Ho. 60, December Term, 1870; S. C., 4 C. Cl. 164. In the other the decision went off upon another point. United States v. Thornton, 160 U. S. 654; S. C., C. CL 342. It is admitted that the settled practice of the War Department and of the Treasury has been to deny the allowances claimed when an officer or soldier is discharged at his own request, for his own pleasure or convenience. Wkitmeyer, Dec. of the Comptroller of the Treasury, 397, 398; Wd>ei,^ Dec. Comp. Treas. 640 ; 5 Dec. Comp. Treas. 113,117; 5 Dec. Comp. Treas. 939, 941 ; Bridges, Second Comptroller’s Letter UNITED STATES v. SWEET. 473 189 U. S. Opinion of the Court. Book, vol. 18, p. 184; Weevil, Second Comptroller’s Letter Book, vol. 26, p. 296. The weight of a contemporaneous and long continued construction of a statute by those charged with its execution is well recognized in cases open to reasonable doubt. United States v. Johnston, 124 U. S. 236, 253 ; United States v. Finnell, 185 U. S. 236, 244. But it is said that in this case the language of the statute admits of no doubt. It is argued that the words “ except by way of punishment for an offence” exclude the implication of other exceptions to the rule. Some force was attributed also to the amendment to the Revised Statutes, which substituted for “ honorably discharged from the service ” the present words “ discharged from the service, except by way of punishment for an offence.” The change, however, is merely a recurrence to the language of the earlier statutes under which the practice of the War Department grew up, so that no particular weight can be given to that. The words “ discharged from the service, except by way of punishment for an offence,” are found in the acts of March 3, 1799, c. 48, § 25, 1 Stat. 755; March 16, 1802, c. 9, § 24, 2 Stat. 137; January 11,1812, c. 14, § 22, 2 Stat. 674; and January 29, 1813, c. 16, § 15, 2 Stat. 796. See further the acts of April 12, 1808, c. 43, §5, 2 Stat. 483; March 3, 1815, c. 79, § 4, 3 Stat. 225; July 22, 1861, c. 9, § 5, 12 Stat. 269 ; July 29,1861, c. 24, 12 Stat. 280; June 20, 1864, c. 145, §8, 13 Stat. 145; March 16, 1896, c. 59, 29 Stat. 63 ; June 7,1900, c. 860, 31 Stat. 708; February 8, 1901, c. 342, 31 Stat. 762. The phrase, honorably discharged,” seems first to have appeared in the evised Statutes, and to have been amended back to the ancient orm in three years. Except for that short intervening time, e allowance of travel pay and commutation of subsistence has gone on under the early words and the practical construction 0 them to which we have referred. th ^°^ows Hle only question is whether the meaning of 1’ h °Dg USed P^rase *s t°° clear f°r almost equally long estab-practice to control. It seems to us not to be so. It is 9m e true that in the military service the word “ discharge ” is e word applied to an order ending the service of an officer at 474 OCTOBER TERM. 1902. Opinion of the Court. 189 U. S. his own request. But in other connections it conveys the notion of a movement beginning with the superior and more or less adverse to the object, as, for instance, when we speak of discharging a servant. Usually it is a slightly discrediting verb. If it is taken in its ordinary meaning here, the exception in case of a discharge by way of punishment raises no difficulty, because a discharge on resignation is not within the meaning of the principal clause. The course of the departments has amounted to no more than interpreting the word in this exact sense. Enlisted men are given similar allowances by § 1290 and the earlier statutes cited. By the act of June 7, 1900, c. 860, 31 Stat. 708, when the Secretary of War, in the exercise of his discretion, has directed the discharge “ of any enlisted men . . . and the orders . . . stated that such enlisted men were entitled to travel pay,” such order is to be sufficient authority for payment of the allowances under § 1290. This recognizes that it is usual to state in the order whether the soldier is entitled to travel pay or not, and seems to accept existing practices as they are. It has no effect upon the cases before us further than as another slight indication of the understanding in the service. But taking everything into account we are not prepared to overturn the long established understanding o the departments charged with the execution of the law. Judgment reversed. United States v. Barnett. No. 235. Argued with No. 236, ante, p. 471, and by the same counsel. Me. Justice Holmes : This is the case of an enlisted man w o makes a claim similar to the above, under Rev. Stat. § 12 > amended. He was discharged on his own application, an order of discharge stated that he was not entitled to trav pav. The foregoing reasoning also governs this case. S Judgment reversed. GILES v. HARRIS. 475 189 U. S. Argument for Appellant. GILES v. HARRIS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA. No. 493. Submitted February, 24,1903.—Decided April 27,1903. A Circuit Court of the United States in Alabama has not jurisdiction of an action in equity brought by a colored man, resident in Alabama, on behalf of himself and other negroes to compel the board of registrars to enroll their names upon the voting lists of the county in which they reside under a constitution alleged to be contrary to the Constitution of the United States. The case is stated in the opinion of the court. Mr. Wilford IT. Smith for appellant. As the facts alleged in the bill of complaint have been admitted by the demurrer, the only question presented for the court’s consideration is, does the bill contain sufficient allegations of matters of fact to raise a Federal question, and, if so, whether the trial court under the law had the power and authority to grant the relief prayed for. The suffrage provisions of the constitution of Alabama are not only unconstitutional and void, but a more high-handed and flagrant case of the nullification of the Fourteenth and Fifteenth Amendments to the Constitution of the United States and repudiation of their solemn guarantees to the negroes of America can never be presented to the courts of the country. If the suffrage provisions of the constitution of Alabama re equally upon the whites and blacks alike, no matter what e standard of property or education required might be, no cause of complaint would be urged here against them ; but t ey sought to restrict the suffrage of the blacks without de-Pllving a single white man of his right to vote. hile the Fourteenth and Fifteenth Amendments do not confer the right of suffrage upon the negro, they contain a so emn guarantee of this nation that no State shall give any 476 OCTOBER TERM, 1902. Argument for Appellant. 189 U. S. preference in this particular to the white citizens over the blacks, or deny the negroes the right to vote, or hinder them in the exercise of the same, because of their race and color and previous condition of servitude, and it is clearly within the equity jurisdiction of the courts of the United States to enforce this solemn guarantee. I. Sec. 1979, Rev. Stat., brought forward from the act of April 20, 1871, provides “ that every person who under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or the immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,” and manifestly confers jurisdiction upon courts of equity to grant relief against the threatened deprivation of rights guaranteed under the Fourteenth and Fifteenth Amendments. Sec. 629, Rev. Stat. cl. 16. Holt v. Indiana Manufacturing Co., 176 U. S. 68. II. This is not a suit brought to enforce a political right, but a civil right guaranteed by the Constitution of the United States. Nor is it sought in this action to control the exercise of any political functions of the State of Alabama, since no State has the right, nor have its officers the right, to deprive any person of the equal protection of the law, or of his right to vote, on account of his race and color or previous condition of servitude. United States n. Reese, 92 U. S. 214; Mills v. Green, 69 Fed. Rep. 852; United States v. Cruikshank, 92 U. S. 542. III. The courts of law are without power to give that efficacious and specific redress in the matter of the enforcement an protection of the rights guaranteed under the Fifteenth Amen ment, because it would be absurd to argue that any money dam age, however large, could in the least degree compensate a negr in Alabama for the deprivation of his right to vote on accoun of his race and color. A court of equity, exercising its remedial principles of specific redress, with its ability to o through forms at the substance and its power to detect an GILES v. HARRIS. 477 189 U. S. Argument for Appellant. expose fraud and conspiracy and cunning and chicanery, can alone grant that relief without which there would be no relief in a case like this. Equity alone has the power to anticipate and prevent a threatened injury where the damage would be insufficient or the wrong irreparable. Ex pa/rte Lennon, 166 U. S. 548 ; Vicksburg Water Works Co. v. Vicksburg, 185 U. S. 65. IV. The Circuit Courts of the United States, sitting in equity, have jurisdiction to enforce and protect the civil rights of a citizen guaranteed by the Fourteenth and Fifteenth Amendments, and this court is not confined to the decision of the question of jurisdiction alone, but should also decide the further question of whether or not the suffrage provisions of the constitution of Alabama are in contravention of the Fourteenth and Fifteenth Amendments to the Constitution of the United States. The act of March 3, 1891, section 5, while it gives the Circuit Court the right to certify the jurisdiction alone to the Supreme Court, does not give the Circuit Court the right by such certification to cut the Supreme Court off from considering other questions which could properly come up on appeal from the Circuit Court. HcLisk v. Roff, 141 U. S. 661 ; Horner v. United States, 143 U. S. 578 ; Holder v. Aultman, Hiller ^•,169 U. S. 81 ; Scott v. Donald, 165 U. S. 58 ; Penn. Hut. Life Ins. Co. v. Austin, 168 U. S. 685 ; Whitten v. Tomlinson, 160 U. S. 231. . . ponce(ling that this court is confined to the question of jurisdiction alone, and is without the power, on this appeal, of considering any other questions involved in the record, it is w oily impossible for the court to separate the question of jurisdiction in this case from the question of whether or not the suffrage provisions of the constitution of Alabama are in contention of the Fourteenth and Fifteenth Amendments to the onstitution of the United States. Indeed, the two questions are one and inseparable. JI- Sec. 180 of art. 8 of the constitution of Alabama, known an administered as the temporary plan, contravenes the Four-cut and Fifteenth Amendments to the Constitution of the mte States, in its purpose, in its language and meaning, and 478 OCTOBER TERM, 1902. Argument for Appellant. 189 U. S. in the way and manner in which it has been carried out and administered by the authorities in the State of Alabama. The speeches in the convention cited in the record show that the purpose the convention had in view in framing the provisions on suffrage and elections was to invent a scheme by which to disfranchise the negroes without disfranchising a single white man in Alabama. Subdivisions 1 and 2 of section 180, fixing qualifications upon persons who served in the war of 1812, and in the war with Mexico and with the Indians, and in the land or naval forces of- the Confederate States, and their descendants, discriminate against the negroes of Alabama, for the reason that it was impossible, owing to their previous condition of servitude, for them to attain to such qualifications. Subdivision 3 is too general, and really describes no qualifications, but simply invests the registrars with unlimited and arbitrary power. If our contention is wrong as to the language and meaning of these subdivisions, still we insist that the administration of said section by all the boards of registrars in the State of Alabama, as shown in the bill and admitted by the demurrer, makes this section unconstitutional and void, because the registrars refused to register qualified negroes for no other reason than their race and color, and required the negroes to produce the testimony of white men as to their qualifications and character, and refused to accept the testimony of colored men, while all white men were registered upon their application without further proof of qualifications than the oath of the applicant. Ah Kow v. Neunan, 5 Sawyer, 560 ; Yick Wo v. Hopkins, 118 U. 8. 356 ; Davies v. McKeeby, 5 Nevada, 369. VII. Section 181 of the constitution of Alabama, known as the permanent plan, contravenes the Fourteenth and Fifteen A mendments to the Constitution of the United States, in its pur pose and object and in its language and meaning, and there ore should be declared null and void and should not be allowe to be enforced. But, conceding that the foregoing argument is untenab e as to the section, it is clearly made unconstitutional und vol W GILES v. HARRIS. 479 189 U. S. Argument for Appellees. the manner of the administration of the temporary plan by the registrars in allowing all white men in the State of Alabama to qualify under the temporary plan, and at the same time refusing to allow nearly all negroes to qualify under the same for no other reason than their race and color, and telling them to come back after the 1st of January, 1903, which is admitted by the demurrer. The State of Alabama, through the registrars, has thus compelled the negroes to look to the permanent plan alone for their qualifications to become electors, which makes the law special class legislation from its inception intended to operate against the negroes of Alabama alone. Jew Ho v. Williamson, 103 Fed. Rep. 10; Yick Wo v. Hopkins, 118 U. S. 356. VIII. Section 186 of the suffrage article of the new constitution of Alabama is obnoxious and repugnant to the Fourteenth and Fifteenth Amendments in that the boards of registrars are given absolute and unlimited power and are clothed with the discretion of judicial officers solely for the purpose of placing the said boards beyond the process of the courts, and of more effectually denying, abridging, and hindering the orator in his right to qualify as an elector, and to vote in the State of Alabama, on the ground of his race and color and previous condition of servitude, and said section is also a part of the scheme to deny and abridge his right to vote in the State of Alabama and the right of his race to vote on account of their race and color and previous condition of servitude. Carter v. Texas, U. S. 442; Ah How v. Neunan, 5 Sawyer, 560; Yick Wo v. Hopkins, 118 U. S. 356. Afr. William A. Gunter for appellees. esides the motion to dismiss, argued below, two questions dvv in thi8 aPPea^ both involving the jurisdiction of the court: ) hether the constitution of the court admits of the cog-®ozance of cases of this class, involving “ the assertion and pro-ction of political rights; ” (2) whether, conceding the first question, such a case is made out as authorizes the exercise of equitable jurisdiction, It is important? for obvious reasons, 480 OCTOBER TERM, 1902. 189 U. S. Argument for Appellees. that the latter question, if possible, be authoritatively settled, and therefore, we discuss it in the first instance. I. The duty and responsibility of prescribing the qualification of state electors, who must select the incumbents of political offices, rests entirely with the state government, with the exception of the restraints imposed by the Fifteenth Amendment of the Constitution of the United States. That provision does not pretend to extend any right, or give any privilege, but by negation provides that the right to vote “ shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.” United States v. Reese, 92 U. S. 214. It is thus plain that the State is at perfect liberty to deny or abridge the right to vote ad libitum, provided it touches no question of race, color or previous condition of servitude. Looking at the provisions of the constitution of Alabama brought into question on this appeal, they can and do challenge the closest scrutiny. It is thus seen that the State gave the right to register as an elector prior to January, 1903, to three classes of male citizens of the State and United States having a certain age and qualification as to residence, viz. : First, soldiers and sailors ; second, their descendants; third, all citizens of good character understanding the duties and obligations of citizenship. It cannot be said, that giving the privilege to soldiers and sailors and their descendants was a denial or Abridgment of the right to vote on account of color, race or previous condition of servitude. These provisions might, and did, in fact, include many citizens of dark color, many of the negro race, and many who had been slaves. The objection, then, if any can be made, must rest on the third provision extending the privilege to all persons of good character understanding the duties and obligations of citizen ship. It is evident that there can be no valid objection to t e terms of this clause. It is clear that persons of the negro iace may have in the highest degree good characters, and un er stand the duties and obligations of citizenship under a repu lican government, and thus that they are not excluded. 11 the other hand, it is equally obvious that white persons are , liable to be excluded as not possessing these qualifications. GILES v. HARRIS. 481 189 U. S. Argument for Appellees. Therefore, the clause is unobjectionable in its terms. Williams v. Mississippi, 170 IL S. 213; Ratcliffe n. Beal, 20 So. Rep. 865. The constitution of Alabama applies, it is admitted, a test which will exclude with many whites, the mass of the negro population from the privilege of voting. Certainly the Constitution of the ITnited States cannot be construed into denying the right of a State to prohibit criminals and ignorant persons of bad character from electing its officers and legislators. It is insisted, however, that this law was passed with the intent to exclude the negro only, and the speeches of members of the Convention are referred to, to give color to the act. The intent of a legislative act can only be gathered from its language. The Convention is responsible only for its collective acts embodied in laws, and not at all for the views of individual members. Fletcher v. Peck, 6 Cranch, 87; Dodge v. Woolsey, 18 How. 371; United States v. Des Moines, 142 IT. S. 545; 1 Notes to IT. S. Rep. 305. II. A court of equity has no jurisdiction of the subject matter involved in this case. The object of this suit is to restrain the operations of the state government for the assertion and vindication of a political right to be an elector. This is not within the province of equity jurisprudence. Green n. Mills, 69 Fed. Rep. 852 ; Mississippi v. Johnson, 4 Wall. 475 ; In re Sawyer, 124 IT. S. 200 ; Fletcher v. Tuttle, 151 Illinois, 41. It is plain that the right to be admitted to registration as an elector, which is sought to be enforced in this case, is purely political and therefore beyond the jurisdiction of a court of equity. If there is such a right in any particular case which is enied, it is supposed that the remedies at law are ample for redress, and, certainly, it is wholly beyond the province of a ourt of equity by its decrees to interfere with the ordinary operations of government as is here proposed. HI. The appeal should be dismissed because it is impossible or the appellate court, if it should decide the case in favor of e plaintiff to grant him any effectual relief. Mills n. Green, 159 IL 8. 651. J vol. clxxxix—31 482 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. Mr. Justice Holmes delivered the opinion of the court. This is a bill in equity brought by a colored man, on behalf of himself “ and on behalf of more than five thousand negroes, citizens of the county of Montgomery, Alabama, similarly situated and circumstanced as himself,” against the board of registrars of that county. The prayer of the bill is in substance that the def endants, may be required to enroll upon the voting lists the name of the plaintiff and of all other qualified members of his race who applied for registration before August 1, 1902, and were refused, and that certain sections of the constitution of Alabama, viz., sections 180, 181, 183, 184,185,186, 187 and 188 of article 8, may be declared contrary to the Fourteenth and Fifteenth Amendments of the Constitution of the United States, and void. The allegations of the bill may be summed up as follows. The plaintiff is subject to none of the disqualifications set forth in the constitution of Alabama and is entitled to vote—entitled, as the bill plainly means, under the constitution as it is. He applied in March, 1902, for registration as a voter, and was refused arbitrarily on the ground of his color, together with large numbers of other duly qualified negroes, while all white men were registered. The same thing was done all over the State. Under section 187 of article 8 of the Alabama constitution persons registered before January 1, 1903, remain electors for life unless they become disqualified by certain crimes, etc., while after that date severer tests come into play which would exclude, perhaps, a large part of the black race. Therefore, by the refusal, the plaintiff and the other negroes excluded were deprived not only of their vote at an election which has taken place since the bill was filed, but of the permanent advantage incident to registration before 1903. The white men general/ are registered for good under the easy test and the black men are likely to be kept out in the future as in the past. This refusal to register the blacks was part of a general scheme to is franchise them, to which the defendants and the State itse , according to the bill, were parties. The defendants acceP® their office for the purpose of carrying out the scheme. GILES v. HARRIS. 483 189 U. S. Opinion of the Court. part taken by the State, that is, by the white population which framed the constitution, consisted in shaping that instrument so as to give opportunity and effect to the wholesale fraud which has been practised. The bill sets forth the material sections of the state constitution, the general plan of which, leaving out details, is as follows : By § 178 of article 8, to entitle a person to vote he must have resided in the State at least two years, in the county one year and in the precinct or ward three months, immediately preceding the election, have paid his poll taxes and have been duly registered as an elector. By § 182, idiots, insane persons and those convicted of certain crimes are disqualified. Subject to the foregoing, by § 180, before 1903 the following male citizens of the State, who are citizens of the United States, were entitled to register, viz.: First. All who had served honorably in the enumerated wars of the United States, including those on either side in the “ war between the States.” Second. All lawful descendants of persons who served honorably in the enumerated wars or in the war of the Revolution. Third. “ All persons who are of good character and who understand the duties and obligations of citizenship under a republican form of government.” As we have said, according to the allegations of the bill this part of the constitution, as practically administered and as intended to be administered, let in all whites and kept out a large part, if not all, of the blacks, and those who were let in retained their right to vote after 1903, when tests which might be too severe for many of the whites as well as the blacks went into effect. By § 181, after anuary 1,1903, only the following persons are entitled to register . First. Those who can read and write any article of the Constitution of the United States in the English language, and who either are physically unable to work or have been regularly engaged in some lawful business for the greater part of the last welve months, and those who are unable to read and write so ely because physically disabled. Second. Owners or hus-ands of owners of forty acres of land in the State, upon w ich they reside, and owners or husbands of owners of real or personal estate in the State assessed for taxation at three 484 OCTOBER TERM, 1902. Opinion of the Court. 189 U. S. hundred dollars or more, if the taxes have been paid unless under contest. By § 183, only persons qualified as electors can take part in any method of party action. By § 184, persons not registered are disqualified from voting. By § 185, an elector whose vote is challenged shall be required to swear that the matter of the challenge is untruq before his vote shall be received. By § 186, the legislature is to provide for registration after January 1, 1903, the qualifications and oath of the registrars are prescribed, the duties of registrars before that date are laid down, and an appeal is given to the county court and Supreme Court if registration is denied. There are further executive details in § 187, together with the above mentioned continuance of the effect of registration before January 1, 1903. By § 188, after the last mentioned date applicants for registration may be examined under oath as to where they have lived for the last five years, the names by which they have been, known, and the names of their employers. This, in brief, is the system which the plaintiff asks to have declared void. Perhaps it should be added to the foregoing statement that the bill was filed in September, 1902, and alleged the plaintiff s desire to vote at an election coming off in November. This election has gone by, so that it is impossible to give specific relief with regard to that. But we are not prepared to dismiss the bill or the appeal on that ground, because to be enabled to cast a vote in that election is not, as in Mills v. Green, 15^ U. S. 651, 657, the whole object of the bill. It is not even the principal object of the relief sought by the plaintiff. The prin-cipal object of that is to obtain the permanent advantages o registration as of a date before 1903. The certificate of the circuit judge raises the single question of the jurisdiction of the court. The plaintiff contends that this jurisdiction is given expressly by Rev. Stat. § 629, cl. , coupled with Rev. Stat. § 1979, which provides that every person who, under color of a state “ statute, ordinance, regn a tion, custom, or usage,” “subjects, or causes to be subjectss, any citizen of the United States or other person within jurisdiction thereof to the deprivation of any rights, privi eges> GILES v. HARRIS. 485 189 U. S. Opinion of the Court. or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” We assume, as was assumed in Holt v. India/na Manufacturing Co., 176 U. S. 68, 72, that § 1979 has not been repealed, and that jurisdiction to enforce its provisions has not been taken away by any later act. But it is suggested that the Circuit Court was right in its ruling that it had no jurisdiction as a court of the United States, because the bill did not aver threatened damage to an amount exceeding two thousand dollars. It is true that by the act of August 13, 1888, c. 866, § 1, 25 Stat. 433, 434, the Circuit Courts are given cognizance of suits of a civil nature, at common law or in equity, arising under the Constitution or laws of the United States, in which the matter in dispute exceeds the sum or value of two thousand dollars. We have recognized, too, that the deprivation of a man’s political and social rights properly may be alleged to involve damage to that amount, capable of estimation in money. Wiley v. Sinkler, 179 U. S. 58; Swafford v. Templeton, 185 U. S. 487. But, assuming that the allegation should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied by amendment, we think it unavailing. The certificate was made alio intuitu. There is no pecuniary limit on appeals to this court under section 5 of the act of 1891, c. 517, 26 Stat. 826, 828, The Paquete Hdbana, 175 U. S. 677, 683, and we do not feel called upon to send the case back to the Circuit Court in order that it might permit the amendment. In Mills v. Green, 159 U. S. 651; S. C., 69 Fed. Rep. 852, no notice was taken of the absence °r an allegation of value in a case like this. We assume further, for the purposes of decision, that § 1979 extends to a deprivation of rights under color of a state constitution, although it might be argued with some force that the enumeration of “ statute, ordinance, regulation, custom, or usage, purposely is confined to inferior sources of law. On these assumptions we are not prepared to say that an action at law eould not be maintained on the facts alleged in the bill. There-ore " e are n°t prepared to say that the decree should be affirmed 486 OCTOBER TERM, 1902. 189 U. S. Opinion of the Court. on the ground that the subject matter is wholly beyond the jurisdiction of the Circuit Court. Smith v. McKay, 161 U. S. 355, 358, 359. Although the certificate relates only to the jurisdiction of that court as a court of the United States, yet, as the ground of the bill is that the constitution of Alabama is in contravention of the Constitution of the United States, the appeal opens the whole case under the act of 1891, c. 517, § 5, 26 Stat. 827. The plaintiff had the right to appeal directly to this court. The certificate was unnecessary to found the jurisdiction of this court, and could not narrow it. As the case properly is here we proceed to consider the substance of the complaint. It seems to us impossible to grant the equitable relief which is asked. It will be observed in the first place that the language of § 1979 does not extend the sphere of equitable jurisdiction in respect of what shall be held an appropriate subject matter for that kind of relief. The words are “ shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” They allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding. The traditional limits of proceedings in equity have not embraced a remedy7 for political wrongs. Green v. MilK 69 Fed. Rep. 852. But we cannot forget that we are dealing with a new and extraordinary situation, and we are unwilling to stop short of the final considerations which seems to us to dispose of the case. The difficulties which we cannot overcome are two, and the first is this: The plaintiff alleges that the whole registration scheme of the Alabama constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But of course he could not maintain a bill for a mere declaration in the air. He does not try to do so, but asks to be registered as a party qualified under the void instrument. If t ®n we accept the conclusion which it is the chief purpose of t e bill to maintain, how can we make the court a party to the un lawful scheme by7 accepting it and adding another voter to i s fraudulent lists ? If a white man came here on the same gen GILES v. HARRIS. 487 189 U. S. Opinion of the Court. eral allegations, admitting his sympathy with the plan, but alleging some special prejudice that had kept him off the list, we hardly should think it necessary to meet him with a reasoned answer. But the relief cannot be varied because we think that in the future the particular plaintiff is likely to try to overthrow the scheme. If we accept the plaintiff’s allegations for the purposes of his case, he cannot complain. We must accept or reject them. It is impossible simply to shut our eyes, put the plaintiff on the lists, be they honest or fraudulent, and leave the determination of the fundamental question for the future. If we have an opinion that the bill is right on its face, or if we are undecided, we are not at liberty to assume it to be wrong for the purposes of decision. It seems to us that unless we are prepared to say that it is wrong, that all its principal allegations are immaterial and that the registration plan of the Alabama constitution is valid, we cannot order the plaintiff’s name to be registered. It is not an answer to say that if all the blacks who are qualified according to the letter of the instrument were registered, the fraud would be cured. In the first place, there is no probability that any way now is open by which more than a few could be registered, but if all could be the difficulty would not be overcome. If the sections of the constitution concerning registration were illegal in their inception, it would be a new doctrine in constitutional law that the original invalidity could be cured by an administration which defeated their intent. We express no opinion as to the alleged fact of their unconstitu-lonality beyond saying that we are not willing to assume that they are valid, in the face of the allegations and main object of the bill, for the purpose of granting the relief which it was necessary to pray in order that that object should be secured. The other difficulty is of a different sort, and strikingly rein-orces the argument that equity cannot undertake now, any niore than it has in the past, to enforce political rights, and a so the suggestion that state constitutions were not left unmen-loned in § 1979 by accident. In determining whether a court 0 equity can take jurisdiction, one of the first questions is what 1 can do to enforce any order that it may make. This is al- 4:88 OCTOBER TERM, 1902. 189 U. S. Justice Brewer, dissenting. leged to be the conspiracy of a State, although the State is not and could not be made a party to the bill. Hans v. Louisiana, 134 IT. S. 1. The Circuit Court has no constitutional power to control its action by any direct means. And if we leave the State out of consideration, the court has as little practical power to deal with the people of the State in a body. The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff’s name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States. Decree affirmed. Mr. Justice Brewer dissenting. I am unable to concur in either the opinion or judgment m this case. The single question is whether the Circuit Court of the United States had jurisdiction. Accepting the statement of facts in the opinion of the majority as sufficiently full, it appears that the plaintiff was entitled to a place on the permanent registry and was denied it by the defendants, the board of registrars in the county in which he lived. No one was allowed to vote who was not registered. He desired to vote at the coming election for representative in Congress. He was deprived of that right by the action of the defendants. Has the Circuit Court jurisdiction to redress such wrong? B 1S conceded that because of the permanence of the registry t e appeal cannot be dismissed under Mills v. Green, 159 U. 651, for if registered on the permanent registry the plaintiff can vote at all future elections. Whether the plaintiff’s remedy was at law or in equity, can GILES v. HARRIS. 489 189 U. S. Justice Brewer, dissenting. not be considered on this appeal. It was so decided in$mVA v. McKay, 161 U. S. 355, the authority of which is not in terms denied in the opinion of the majority, although by the decision it is practically disregarded. The certificate of the trial judge stated that “ the only question considered and decided by the court in dismissing the bill of complaint was, whether upon the bill and demurrer thereto a case is presented of which this court has jurisdiction under the Constitution or laws of the United States.” The act of Congress authorizing appeals directly from the Circuit Courts to this court, 26 Stat. 827, provides that: “ 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.” In Smith v. McKay, we said (p. 358): “ When the requisite citizenship of the parties appears, and the subject matter is such that the Circuit Court is competent to deal with it, the jurisdiction of that court attaches, and whether the court should sustain the complainant’s prayer for equitable relief, or should dismiss the bill with leave to bring an action at law, either would be a valid exercise of jurisdiction. If any error were committed in the exercise of such jurisdiction, it could only be remedied by an appeal to the Circuit Court of Appeals.” See also Tucker v. Me Kay, 164 U. S. 701; Murphy v. Colorado Pa/cing Company, 166 U. S. 719 ; Shepard v. Adams, 168 U. S. 618, 622 ; Building de Loan Association n. Price, 169 U- S. 45, in which we said : The complainant appealed to this court, which appeal was allowed and granted solely upon the question of the jurisdiction of the Circuit Court, and that question alone has been certified, hether the bill shows facts sufficient to invoke the consideration of a court of equity is not such a question of jurisdiction as is referred to in the Judiciary Act of March 3, 1891, c. 517, and we have therefore no concern with that question.” Blythe ^mpamyN. Blythe, 172 U. S. 644; Blythe v. Hinckley, 173 • 501, 506, from which I quote: “ Appeals or writs of error may be taken directly from the Circuit Courts to this court in 490 OCTOBER TERM, 1902. Justice Brewer, dissenting. 189 U. S. cases in which the jurisdiction of those courts is in issue, that is, their jurisdiction as Federal courts, the question alone of jurisdiction being certified to this court. The Circuit Court held that the remedy was at law and not in equity. That conclusion was not a decision that the Circuit Court had no jurisdiction as a court of the United States. ” A still more significant case is Huntington v. Laidley, 176 U. S. 668. In that case proceedings had been had in the courts of the State resulting in a final determination of the controversy. Subsequently this action was commenced in the Federal court, and the final decision of the state courts was pleaded as res judicata. The Circuit Court dismissed the suit for want of jurisdiction, and certified the question to this court. I thought it was sacrificing substance to form to reverse the judgment of dismissal when it was apparent that the controversy had been settled by the decisions in the state court, and, therefore, could not rightfully be relitigated in the Federal court. But this court held that the only question to be considered was that of jurisdiction, saying (p. 679): “ Under the circumstances of this case, the question whether the proceedings in any or all of the suits, at law or in equity, in the state court, afforded a defence—either by way of res adjudir cata, or because of any control acquired by the state court over the subject matter—to this bill in the Circuit Court of the United States, was not a question affecting the jurisdiction of that court, but was a question affecting the merits of the cause, and as such to be tried and determined by that court in the exercise of its jurisdiction. The Circuit Court of the United States cannot, by treating a question of merits as a question of jurisdiction, enable this court, upon a direct appeal on the question of jurisdiction only, to decide the question of merits, except in so far as it bears upon the question whether the court below had or had not jurisdiction of the case. In any aspect of the case, the decree of the Circuit Court of the United States, dismissing t e suit for want of jurisdiction, must be reversed, and the, cause remanded to that court for further proceedings therein. Although the statute and these decisions thus expressly limit the range of inquiry on a certificate of jurisdiction to the ques GILES v. HARRIS. 491 189 U. S. Justice Brewer, dissenting. tion of jurisdiction, is is held that because there is a constitutional question shown in the pleadings, the certificate may be ignored and the entire case presented to this court for consideration. In other words, although the plaintiff, by his method of appeal, following the provisions of the statute, limited the inquiry to the matter of jurisdiction, this court will ignore such limit and treat the case as coming here on a general appeal, which he did not take. This conclusion seems to me to practically destroy the statute and overrule the prior decisions, for the jurisdiction of Federal courts primarily rests on the Constitution of the United States and the extent of their jurisdiction is determined by its provisions. Hence every case coming up on a certificate of jurisdiction may be held to present a constitutional question and be open for full inquiry in respect to all matters involved. Neither can I assent to the proposition that the case presented by the plaintiff’s bill is not strictly a legal one and entitling a party to a judicial hearing and decision. He alleges that he is a citizen of Alabama, entitled to vote ; that he desired to vote at an election for representative in Congress ; that without registration he could not vote, and that registration was wrongfully denied him by the defendants. That many others were similarly treated does not destroy his rights or deprive him of relief in the courts. That such relief will be given has been again and again affirmed in both National and state courts. That the United States Circuit Court has jurisdiction of an action like this seems to me to result inevitably from prior decisions of this court. Without stopping to notice in detail the cases of Eoo parte Siebold, 100 U. S. 371; Aa? parte Yarbrough, HO U. S. 651, and In re Coy, 127 U. S. 731, in which the general jurisdiction of Federal courts over matters involved in t e election of national officers is affirmed, I refer to two recent cases which bear directly upon the present question. Wiley v. wilder, 179 U. S. 58, was an action brought in the Circuit ouit of the United States by the plaintiff to recover damages ? an election board for wilfully rejecting his vote for a mem-er of the House of Representatives. We held that the court nad jurisdiction, and said (p. 64): 492 OCTOBER TERM, 1902. Justice Bbeweb, dissenting. 189 U. S. “ This action is brought against election officers to recover damages for their rejection of the plaintiff’s vote for a member of the House of Representatives of the United States. The complaint, by alleging that the plaintiff was at the time, under the constitution and laws of the State of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the State, shows that the action is brought under the Constitution and laws of the United States. The damages are laid at the sum of $2500. What amount of damages the plaintiff shall recover in such an action is peculiarly appropriate for the determination of a jury, and no opinion of the court upon that subject can justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the Circuit Court. Barry n. Edmunds, 116 U. S. 550; Scott v. Donald, 165 U. S. 58, 89; Vance v. W. A. Vandercook Co., 170 U. 468, 472 ; North American Co. v. Morrison, 178 U. S. 262, 267. The Circuit Court therefore clearly had jurisdiction of this action, and we are brought to the consideration of the other objections presented by the demurrer to the complaint.’ Again, in Swafford v. Templeton, 185 U. S. 487, which, like the former case, was one brought in the Circuit Court of the United States to recover damages for the alleged wrongful refusal by the defendants as election officers to permit the plaintiff to vote at a national election for a member of the House of Representatives, it was held that the court had jurisdiction. Here, too, we said, after referring to v. Sinkler (p. 492): “ It is manifest from the context of the opinion in the case just referred to that the conclusion that the cause was one arising under the Constitution of the United States was predicated on the conception that the action sought the vindication or protection of the right to vote for a member of Congress, a right, as declared in Ex pa/rte Yarbrough, 110 U. S. 655,664, ‘ funda mentally based upon the Constitution of the United States, which created the office of member of Congress, and declare that it should be elective, and pointed out the means of ascer taining who should be electors.’ That is to say, the ruling was that the case was equally one arising under the Constitution oi laws of the United States, whether the illegal act complaine GILES v. HARRIS. 493 189 U. S. Justice Harlan, dissenting. of arose from, a charged violation of some specific provision of the Constitution or laws of the United States, or from the violation of a state law which affected the exercise of the right to vote for a member of Congress, since the Constitution of the United States had adopted, as the qualifications of electors for members of Congress, those prescribed by the State for electors of the most numerous branch of the legislature of the State. It results from what has just been said that the court erred in dismissing the action for want of jurisdiction, since the right which it was claimed had been unlawfully invaded was one in the very nature of things arising under the Constitution and laws of the United States, and that this inhered in the very substance of the claim. It is obvious from an inspection of the certificate that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States.” It seems to me nothing need be added to these decisions, and unless they are to be considered as overruled they are decisive of this case. Mr. Justice Brown also dissents. Mr. Justice Harlan dissenting. By the final judgment in the Circuit Court the bill in this case was dismissed for want of jurisdiction to entertain it and for want of equity; and from that judgment the plaintiffs prayed and were allowed an appeal. Subsequently an order was made by the Circuit Court certifying that the only question considered and decided was whether upon the bill and demurrer a case was presented of 494 OCTOBER TERM, 1902. Justice Harlan, dissenting. 189 U. S. which it had jurisdiction under the Constitution and laws of the United States. Although the case involves questions of considerable importance, it was submitted here without oral argument. Could the Circuit Court take cognizance of this cause consistently with the act of Congress regulating its jurisdiction ? This is naturally the fundamental, if not the only, question in the case. An answer to the question requires a reference to several acts of Congress, including the Judiciary Act of August 13, 1888, correcting that of March 3, 1887. 25 Stat. 433. Section 629 of the Revised Statutes enumerates in subdivisions the cases of which the Circuit Courts of the United States may take original cognizance. In subdivision one of that section the Circuit Courts are given original cognizance “ of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where it is brought and a citizen of another State; ” and m subdivision two, “ of all suits in equity, where the matter, exclusive of costs, exceeds the sum or value of five hundred dollars, and the United States are petitioners.” Rev. Stat. § 629, subdiv. 1 and 2. By the sixteenth subdivision of that section it is declared that the Circuit Courts shall have original cognizance “ of all suits authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regu a tion, custom, or usage of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law providing for equal rights o citizens of the United States, or of all persons within the juris diction of the United States.” The matter in dispute in such suits was not expressly required by the Revised Statutes o have any money value. (( . ., By section 1979 of the Revised Statutes, Title 24, Rights,” it is provided that “ every person who, under color o any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any ci i GILES v. HARRIS. 495 189 U. S. Justice Harlan, dissenting. zen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” It has been said that this section as well as subdivision 16 of section 629 were based upon the first section of the act of April 20, 1871, 17 Stat. 13, c. 22, entitled “ An act to enforce the provisions of the Fourteenth Amendment to the Constitution of the United States, and for other purposes.” Holt v. Indiana Hanuf. Co., 176 U. S. 68,70. Next came the act of March 3, 1875, which provided that “The Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in. equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects; and shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the District Courts of the crimes and offences cognizable therein.” 18 Stat. 470, c-137. That act expressly repealed previous statutes in conflict with its provisions. Then came the act of 1888, correcting that of 1887, and which provides “That the Circuit Courts of the United States s all have original cognizance, concurrent with the courts of e several States, of all suits of a civil nature, at common law ?r 111 eclu^y, where the matter in dispute exceeds, exclusive of Merest and costs, the sum or value of two thousand dollars, arising under the Constitution or laws of the United States, °r Katies made, or which shall be made, under their author 496 OCTOBER TERM, 1902. Justice Harlan, dissenting. 189 U. S. ity, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid.” By that act the conflicting provisions of previous acts were repealed, except in certain particulars, among which were the provisions relating to “any jurisdiction or right mentioned ... in Title twenty-four of the Revised Statutes,” Civil Rights, under which Title § 1979 is found. It is clear that under the act of 1888 a Circuit Court could not take original cognizance of a suit simply because it was one arising under the Constitution or laws of the United States. The value of the matter in dispute in such a case must exceed $2000, exclusive of interest and costs. The bill makes no allegation whatever as to the value of the matter in dispute, although this court, speaking by the Chief Justice, in Holt v. Indiana Manufacturing Company, above cited, after referring to the first section of the Judiciary Act of 1888, said: “ This ” [the question of the value in dispute in cases arising under the Constitution or laws of the United States] “ was carefully considered in United States v. Sayward, 160 U. S. 493, and it was held that the sum or value named was jurisdictional, and that the Circuit Court could not, under the statute, take original cognizance of a case arising under the Constitution or laws of the United States unless the sum or value of the matter in dispute, exclusive of costs and interest, exceeded two thousand dollars. That decision was reaffirmed in Fisliback v. Western Union Telegraph Company, 161 U. 8. 96, 99.” It was added—contrary to the intimation given in the opinion in the present case—that “the conclusion reached is not affected by the fact that the operation of the act of March , 1891, was to do away with any pecuniary limitation on appeas directly from the Circuit Courts to this court. The Paquete GILES v. HARRIS. 497 189 U. S. Justice Harlan, dissenting. Habana, 175 U. S. 677.” Of course, it was not meant by that language that the jurisdiction of the Circuit Courts, so far as the value of the matter in dispute is concerned, was changed as to the cases embraced by the fifth section of the act of 1891. The act of 1891 left the original jurisdiction of the Circuit Courts as established by the act of 1888. 1. It cannot be disputed that the present suit is one arising under the Constitution and laws of the United States, and it is clear that the value of the matter in dispute is made by the statute an essential element in the jurisdiction of the Circuit Court in such a case. But it has been suggested that this suit is also embraced by subdivision 16 of § 629 and § 1979 of the Revised Statutes—which provisions this court assumed, in Holt v. Manufacturing Co., and now assumes, were not repealed by any subsequent statute, and, therefore, that the value of the matter in dispute is of no consequence. But this suggestion overlooks the declaration of the court in that case to the effect that although the above provisions must be assumed to be still (1899) in force, they refer “ to civil rights only.” 176 U. S. 72. In this view, subdivision 16 of § 629 and § 1979 of the Revised Statutes have no bearing upon the present case, if the rights for the protection of which the present suit was brought are political rights, and not civil rights within the meaning of the statutes relating to “ Civil Rights.” Consequently the saving clause in the act of 1888 in respect of any jurisdiction or right mentioned in Title 24 of the Revised Statutes, Civil Rights, becomes immaterial in the present case. Whether this be so or not, the court refrains from declaring that the plaintiff could proceed under subdivision 16 of section 629 or section 1979 of the Revised Statutes, without regard to the value of the matter m dispute. If this court thinks that this suit could be maintained under subdivision 16 of § 629 or under § 1979, or under °th, without regard to the value of the matter in dispute, I submit that it should have been so adjudged. 2. Referring to the suggestion that the act of 1888 gives the Jrcuit Court jurisdiction in all suits at law or equity, in which ® matter in dispute is the sum or value of $2000 and arising Un er ^le Constitution or laws of the United States, and con-VOL. clxxxix—32 498 OCTOBER TERM, 1902. Justice Harlan, dissenting. 189 U. S. ceding that this court in Wiley v. Sinkler, 179 U. S. 57, and Swafford v. Templeton^ 185 U. S. 487, recognized that the deprivation of a man’s political rights (those cases had reference to the elective franchise) may properly be alleged to have the required value in money, the court says : “ Assuming that the allegation [of value] should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied by amendment, we think it unavailing. The certificate was made alio intuitu. There is no pecuniary limit on appeals in this court under section 5 of the act of 1891, c. 517, 26 Stat. 826, 828 ; The Paquete Habana, 175 IT. S. 677, 683, and we do not feel called upon to send the case back to the Circuit Court that it might permit the amendment.” It seems to me that this question as to the value of the matter in dispute was sufficiently raised in the Circuit Court; for the demurrer to the bill was, in part, on the ground that the facts stated did not make a case “ within the jurisdiction of the court.” But, passing that view, I come to a more serious matter. In cases of which a Circuit Court may take original cognizance, the value of the matter in dispute—which is mentioned in the statute in advance of any reference to the nature of the subject of the action—is as essential to jurisdiction as is the nature of the subject of such dispute. And yet the court says that an objection that the record from the Circuit Court does not show an allegation as to value is unavailing here, even if such allegation ought to have been made. That is a new, and I take leave to say a startling, doctrine. Must not this court upon its own motion decline to pass upon, indeed, has this court, strictly speaking, jurisdiction to consider and determine, the merits of a case coming from the Circuit Court, unless it affirmatively appears from the recor that the case is one of which that court could take cognizance . Is not a suit presumably without the jurisdiction of a Circuit Court, unless the record shows it to be one of which that cour may take cognizance ? Is it of any consequence that t e parties did not raise the question of jurisdiction in the Circui Court ? If the record shows nothing more than that the case GILES v. HARRIS. 499 189 U. S. Justice Harlan, dissenting. arises under the Constitution and laws of the United States, and if it does not affirmatively appear, in some appropriate way, that the value of the matter in dispute is up to the required amount, has this court jurisdiction to consider and determine the merits of the case ? Let us look at some of the adjudged cases upon the general subject of the jurisdiction of the Federal courts, and see what the duty of this court is when its own jurisdiction does not affirmatively appear from the record, or when it does not appear that the Circuit Court had jurisdiction. In Sizer v. Many, 16 How. 97, 103, which was an action for the infringement of letters patent: “ The sum taxed being less than $2000 no writ of error will lie under the act of 1789. This act gives no jurisdiction to this court over the judgment of a Circuit Court, where the judgment is for less than that sum. . . . The writ of error must therefore be dismissed for want of jurisdiction.” In Brown v. Shannon, 20 How. 55, 58, which was an action to enforce the specific execution of a contract in relation to the use of a patent right: “ The sum mentioned in the bill . . . being less than $2000, whatever errors may be apparent in the proceedings and decree of the court below, we have yet no power under the act of Congress to revise and correct them, and the appeal must be dismissed.” In Richmond v. City of Milwaukee, 21 How. 80, 82, which was an action to prohibit the conveyance of certain lots: “ There is nothing in the allegations of the parties or in the evidence to show that the value of the lots in question exceeded $2000, nor anything from which it can be inferred. The appeal must therefore be dismissed for want of jurisdiction in this courtP In Pratt v. Fitzhugh, 1 Black, 271, 273, which was a cause in admiralty: “ Without the fact of value being shown on the record, or by evidence aliunde, the court has no jurisdiction.” n v. United States, 4 Wall. 163, 165, which was an ac ion on a judgment for money : “This court has no appellate jurisdiction, except such as is defined by Congress. The act 0 Congress limits this jurisdiction to cases where the matter ln dispute exceeds $2000. We can no more take jurisdiction ere the matter does not exceed than we can where it is less 500 OCTOBER TERM, 1902. Justice Hablan, dissenting. 189 U. S. than that sum. The amount in controversy in the case before us, ascertained in conformity with the settled principles of the court, does not exceed two thousand dollars. We have, therefore, no jurisdiction of the writ of error, and it must be dismissed.” In The Grace Girdler, 6 Wall. 441, which was an appeal in admiralty : “ While it is true that the greater part of the loss fell upon Lockwood as owner of the Ariel, and her belongings, there is nothing in the record which shows that the damage sustained exceeded $2000. And this is essential to jurisdiction.1” In Ayers v. Watson, 113 U. S. 595, 598, which was an action of trespass to try title to land : “ Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed.” These cases relate to the jurisdiction of this court under statutes prescribing a certain amount as essential, upon writ of error or appeal, for the review of judgments rendered in the Circuit Court. Looking now at cases in which the want of jurisdiction in the Circuit Court has been held to preclude this court from going into the merits of the case adjudged, we find in King Bridge Co. v. Otoe County, 120 U. S. 226, which was an action upon county warrants, this language : “ It does not appear that the Circuit Court had jurisdiction of the action. Unless the contrary appears affirmatively from the record, the presumption, upon writ of error or appeal, is that the court below was without jurisdiction.” In Metcalf v. Watertown, 128 U. S. 587, which was an action upon a judgment, and in which case the question was whether an action upon a certain judgment wa barred by limitation, this court said : “We are not, however, at liberty to express any opinion upon the question of limi a tion, if the court, whose judgment has been brought here or review, does not appear, from the record, to have had juris i tion of the case. And whether that court had or had not juris diction, is a question which we must examine and determm , even if the parties forbear to malte it, or consent that the case GILES v. HARRIS. 501 189 U. S. Justice Harlan, dissenting. considered upon its merits.” In Chapman v. Barney, 129 U. S. 677, 681, which was an action for trover : “We are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is presented by the record, and under repeated decisions of this court must be considered.” In Parker v. Ormsby, 141 IT. S. 83 : “ Did the court below have jurisdiction of this case? If jurisdiction did not affirmatively appear, upon the record, it was error to have rendered a decree, whether the guestion of jurisdiction was raised or not in the court below. In the exercise of its power, this court, of its own motion, must deny the jurisdiction of the courts of the United States, in all cases coming before it, upon writ of error or appeal, where such jurisdiction does not affirmatively appear in the record on which it is called to act.” In Mattingly .Northwestern Virginia Railroad, 158 U. S. 53, 57, which was an action to set aside certain conveyances and to foreclose a mortgage: “ Although it does not appear that the question of jurisdiction was raised in the court below by any plea or motion, yet as the record failed to affirmatively show jurisdiction, this court must take notice of the defect.” According to the adjudged cases, "the first inquiry which this court should make as to any case before it from an inferior Federal court is as to its own jurisdiction. If jurisdiction does not appear from the record then the writ of error or appeal should be dismissed. If it is found to have jurisdiction for any purpose, then its next duty is to inquire as to the jurisdiction of the court below. When the latter court does not appear upon the record to have jurisdiction, then the. duty of this court is to reverse the judgment and remand the case to be dismissed for want of jurisdiction. I say “ appear upon the record to have jurisdiction,” because, as we have seen, the presumption is that a cause is without the jurisdiction of a Federal court, unless the contrary affirmatively appears. Turner v. Bank of North Am-8 ; Brown v. Keene, 8 Pet. 115; Ex parte Smith, U. S. 455; Robertson v. Cease, 97 U. S. 646. In Brown v. oene, Chief Justice Marshall said : “ The decisions of this court require that the averment of jurisdiction shall be positive; that e declaration shall state expressly the fact on which jurisdic- 502 OCTOBER TERM, 1902. 189 U. S. Justice Harlan, dissenting. tion depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.” To these cases I will add that of M. C. & L. M. Railway v. Swan, 111 U. S. 379, 382, in which this court said: “ It is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it; and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, ’which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.” In the above case of Holt v. Manufacturing Co., 176 U. 8. 68, which involved a question of the jurisdiction of the Circuit Court, this court said: “ In this, as in all cases, if it appears that the Circuit Court had no jurisdiction, it is the duty of this court to so declare, and enter judgment accordingly These principles have been expressly affirmed by this court in many other cases. And yet, according to the opinion in this case, if objection is not made in the Circuit Court to its jurisdiction, it will be unavailing to raise that question in this court, and we may proceed to determine the merits of the case. Such a doctrine, I repeat, is a new departure. The court, in effect says, that although it may know that the record fails to show a case within the original cognizance of the Circuit Cour , 1 may close its eyes to that fact, and review the case on its mer its. In view of the adjudged cases, I cannot agree that t e failure of parties to raise a question of jurisdiction will relieve this court of its duty to raise it upon its own motion. The con GILES v. HARRIS. 503 189 U. S. Justice Harlan, dissenting. trary view cannot be justified. This court may not assume jurisdiction to do that which it has no authority to do. It will be appropriate to observe that the Circuit Court in effect propounds the question whether it had jurisdiction of this case upon the record before it. That question necessarily involves the inquiry whether subdivision 16 of § 629 and § 1979 of the Revised Statutes were repealed by later acts. But that point is left undecided, the court only assuming that those statutory provisions are still in force, but it does not say whether the suit could be maintained under those sections or under either of them without allegation or proof as to the value of the matter in dispute. Nor does the court distinctly adjudge whether the case is embraced by the act of 1887-8; but simply assuming that the allegation of value should have been made in the bill, it proceeds to consider the case upon its merits. The question of the jurisdiction of the Circuit Court under the acts of Congress, the one certified, is thus left in the air, and the case is examined and disposed of upon its merits just as if jurisdiction of the Circuit Court appeared upon the record. There is no claim that the essential fact of value appears anywhere in the record, either in the bill or otherwise. Consequently, as already said, this court is without power to consider the merits. The court says that the plaintiff had the right to appeal directly to this court under section 5 of the act of 1891, and that the certificate was unnecessary to found the jurisdiction of this court and, could not narrow it. But it does not follow that this court can review the merits of the case, if the Circuit Court does not appear to have had jurisdiction to determine the rights of the parties. My views may be summed up as follows: 1. This case is embraced by that clause of the act of 1887-8, which provides that the Circuit Court shall have original cognizance “ of all suits of a civil nature, . . . where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States.” 2. That the sum or value of the matter in dispute in such cases is jurisdictional under the statute. 3. That us it did not appear from the record, in any way, that the matter 504 OCTOBER TERM, 1902. Order amending Decree. 189 U. S. in dispute exceeded in value the jurisdictional amount, the Circuit Court could not take cognizance of the case or dispose of it upon its merits. 4. That least of all does this court have jurisdiction to determine the merits of this case. 5. That when a case comes here upon a certificate as to the jurisdiction of a Circuit Court, this court may not forbear to decide that question, and determine the merits of the case upon a record which does not show jurisdiction in the Circuit Court. As these are my views as to the jurisdiction of this court, upon this record, I will not formulate and discuss my views upon the merits of this case. But to avoid misapprehension, I may add that my conviction is that upon the facts alleged in the bill (if the record showed a sufficient value of the matter in dispute) the plaintiff is entitled to relief in respect of his right to be registered as a voter. I agree with Me. Justice Bee wee that it is competent for the courts to give relief in such cases as this. Sena v. United States. No. 40. Petition for modification of judgment and for rehearing. June 1, 1903. The opinion of the court in this case is reported ante, p. 233. Me. Justice Beown : It is ordered by the court that the decree of affirmance in this case be amended by adding the following words: “ so far as such decree orders that the petition be dismissed, but without prejudice to such further proceedings as petitioner may be advised to take.” OCTOBER TERM, 1902. 505 189 U. S. Opinions Per Curiam, etc. OPINIONS PER CURIAM, ETC., FROM MARCH 2, TO MAY 3, 1903. No. 169. Fred T. Hegeman et al., etc., Plaintiffs in Error, v. John H. Springer, as Receiver, etc. Error to the United States Circuit Court of Appeals for the Second Circuit. Submitted February 24, 1903. Decided March 2, 1903. Per Curiam. Judgment affirmed with costs, on the authority of Bleistein v. Donaldson Company, 188 U. S. 239, decided at this term; Bobinson v. Belt, 187 U. S. 50, and the case remanded to the Circuit Court of the United States for the Southern District of New York. Mr. Edvca/rd Jacobs for plaintiffs in error. Mr. Chauncey 8. Truax for defendant in error. No. 179. George Nester et al., Plaintiffs in Error, v. Frank E. Church. Error to the Supreme Court of the State of Michigan. Argued February 27, 1903. Decided March 2, 1903. Per Curiam. Dismissed for the want of jurisdiction, on the authority of Castillo v. McConnico, 168 U. S. 674. Mr. Timothy E. Tarsney for plaintiffs in error. Mr. Frank E. Bob-son for defendant in error. No. 402. Amada C. De Baca et al., Administrators, etc., Appellants, v. United States et al. Appeal from the Court of Claims. Submitted February 24, 1903. Decided March 2, 1903. Error being confessed by the appellees, judgment reversed, and cause remanded with directions to proceed therein according to law. Mr. EL C. Burnett for appellants. The Attorney General and Mr. Assistant Attorney General Thomp-son for appellees. No. 196. Bank of Commerce, Plaintiff in Error, v. Charles • Wiltsie, Prosecuting Attorney. Error to the Supreme 506 OCTOBER TERM, 1902. Opinions Per Curiam, etc. 189 U. S. Court of the State of Indiana. Argued March 10, 11, 1903. Decided March 16, 1903. Per Curiam. Dismissed for the want of jurisdiction on the authority of Erie Railroad Company v. Purdy, 185 U. S. 148 ; Mallett v. North Carolina, 181 U. S. 592; Mutual Life Insurance Company v. McGrew, 188 U. S. 291; and cases cited. See 153 Indiana, 460-474. Mr. Augustin Boice for plaintiff in error. Mr. Merrill Moores, Mr. W. L. Taylor and Mr. C. C. Hadley for defendant in error. No. 197. Hunter H. Moss, Jr., Prosecuting Attorney, etc., et al., Appellants, v. Ellis Glenn. Appeal from the Circuit Court of the United States for the Northern District of West Virginia. Argued and submitted March 11, 1903. Decided March 16, 1903. Per Curiam. Final order reversed with costs, and cause remanded with directions to quash the writ of habeas corpus and dismiss the petition. Baker v. Grice, 169 U. S. 284; Markuson v. Boucher, 175 U. S. 184; Minnesota v. Brundage, 180 U. S. 499; Dreyer v. Illinois, 187 U. S. 71. Mr. William, N. Miller and Mr. Hunter H. Moss, Jr., for appellants. Mr. C. C. Cole for appellees. No. 208. People of the State of Illinois on the Relation of George F. Rayburn et al., Plaintiffs in Error, v. Hugh A. Binns et al. Error to the Supreme Court of the State of Illinois. Submitted March 12,1903. Decided March 16,1903. Per Curiam. Dismissed for the want of jurisdiction on the authority of Castillo v. McConnico, 168 U. S. 674; Butler v. Gage, 138 U. S. 52; Erie Railroad Company v. Purdy, 185 U. S. 148. See 192 Illinois, 68. Mr. Edward D. Blinn for plaintiffs in error. No appearance for defendants in error. No. 227. Lillie Winston, Plaintiff in Error, u. Walker Winston. Error to the Supreme Court of the State o ev York. Argued April 7, 1903. Decided April 13, 1903. OCTOBER TERM, 1902. 507 189 U. S. Opinions Per Curiam, etc. Curiam. Judgment affirmed with costs, on the authority of Bell v. Bell, 181 U. S. 175; Streit/wolf v. Streitwolf, 181 U. S. 179; Andrews v. Andrews, 188 U. S. 14. Mr. Eugene Sweeney for plaintiff in error. Mr. Daniel E. Lynch for defendant in error. No. 535. Almond A. White, Plaintiff in Error, v. Sidney L. Wright et al. Error to the Supreme Court of the State of Minnesota. Motion to dismiss submitted April 6, 1903. Decided April 13, 1903. Per Curiam. Dismissed for the want of jurisdiction, on the authority of Haseltine v. Bank, 183 U. S. 130; Insurance Company v. Kirchoff, 160 U. S. 374; Meagher v. Manufacturing Company, 145 U. S. 611. Mr. Orville Binehart for plaintiff in error. Mr. Leon E. Lum and Mr. Jed L. Washburn for defendants in error. No. 242. Frederick D. Schulte et al., Plaintiffs in Error, v. August Heman. Error to the Supreme Court of the State of Missouri. Argued and submitted April 16, 1903. Decided April 20, 1903. Per Curiam. Judgment affirmed with costs, on the authority of Shumate v. Heman, 181 U. S. 402; French v. Barber Asphalt Pawing Company, 181 U. S. 324; Chadwick v. KeTby, 187 U. S. 540 ; Fallbrook Irrigation District v. Bradley, 164 U. S. 112. See Heman v. Schulte, 166 Missouri, 409. Mr. William B. Thompson for plaintiffs in error. Mr. Hickman P. Bodgers for defendant in error. Nos. 249 and 250. United States ex rel. Henry D. Phillips, Plaintiff in Error, v. Eugene F. Ware, Commissioner of Pensions; and Nos. 251 and 322. United States ex rel. Henry D. Phillips, Plaintiff in Error, v. Ethan Allen Hitchcock, secretary of the Interior et al. Error to the Court of Appeals of the District of Columbia. Submitted April 16,1903. Decided April 20, 1903. Per Curiam. Writs of error dis 508 OCTOBER TERM, 1902. Opinions Per Curiam, etc. 189 U. S. missed for the want of jurisdiction. Act of March 3,1901, sec. 233, 31 Stat. 1189, c. 854; act of February 9, 1893, sec. 8, 27 Stat. 434, c. 74; act of March 3, 1885, 23 Stat. 443, c. 355; Baltimore and Potomac Railroad Company n. Hopkins, 130 U. S. 210; United States v. Lynch, 137 U. S. 280; Cameron n. United States, 146 U. S. 533; South Carolina v. Seymour, 153 IT. S. 353. Mr. Henry D. Phillips and Mr. L. R. Walker for plaintiff in error. Mr. Assistant Attorney General Campbell and Mr. F. L. Campbell for defendants in error. No. 357. Mary J. Lyon et al., Plaintiffs in Error, v. Margaret Gombret et al. Error to the Supreme Court of the State of Nebraska. Motions to dismiss or affirm submitted April 6, 1903. Decided April 20, 1903. Per Curiam. Writ of error dismissed for the want of jurisdiction, on the authority of Eustis v. Boltes, 150 IT. S. 361; PierceN. Somerset Railway, 171 U. S. 648; Gillis v. Stinchfield, 159 U. S. 658 ; Missouri Pacific Railway Company v. Fitzgerald, 160 IT. S. 556. See Lyon v. Gombert, 63 Nebreska, 630. Mr. Lionel C. Burr and Mr. Charles L Burr for plaintiffs in error. Mr. J. H. Broody for defendants in error. No. 237. Second National Bank of Richmond, Kentucky, Plaintiff in Error, v. C. N. Fitzpatrick et al. Error to the Court of Appeals of the State of Kentucky. Argued April 15, 1903. Decided April 27, 1903. Per Curiam. Writ of error dismissed for the want of jurisdiction, on the authority of LLaseltine v. Central Bank, 183 IT. S. 130. Mr. J. A. Sullivan for plaintiff in error. No appearance for defendants in error. No. 611. New York, New Haven and Hartford Railroad Company, Plaintiff in Error, v. Patrick McKeon. Error to the Court of Common Pleas of Fairfield County, Connecticut. Motions to dismiss or affirm, submitted April 20, 1903. Decided April 27,1903. Per Curia/m. Judgment affirmed with OCTOBER TERM, 1902. 509 189 U. S. Decisions on Petitions for Writs of Certiorari. costs and interest, on the authority of Wheeler v. New York etc. Railroad Company, 178 U. S. 321; New York and New England Railroad Company v. Bristol, 151 U. S. 556 ; Arrowsmith v. Harmoning, 118 U. S. 194; Little Rock etc. Railway Company v. Worthen, 120 U. S. 97-102; Davidson v. Neio Orleans, 96 U. S. 97, 105. See 53 Atl. Rep. 656. J/r. Arthur AL. ALa/rsh for plaintiff in error. ALr. Stiles Judson, Jr., for defendant in error. Decisions on Petitions for Writs of Certiorari. From March 2 to May 3, 1903. No. 512. Joseph H. Ching, Petitioner, v. United States. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. ALr. George E. Hamilton and ALr. Adrian Posey for petitioner. ALr. Solicitor General Richards for respondent. No.' 573. Eufaula Cotton Oil Company et al., Petitioners, v. Stillwell & Bierce and Smith-Vaile Company. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Afr. William Edgar Simonds for petitioners. Air. E. E. Wood for respondent. No. 577. Philip S. Witherspoon, Petitioner, v. Frederick P. Olcott. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. ALr. W. 0. Davis for petitioner. No appearance for respondent. No. 592. Walter N. Dimmick, Petitioner, v. United States. 510 OCTOBER TERM, 1902. Decisions on Petitions for Writs of Certiorari. 189 U. S. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. Jfr. George D. Collins for petitioner. J/r. Solicitor General Richards for respondent. No. 599. William E. Ferguson et al., etc., Petitioners, v. Enoch Helliesen et al. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. JZr. James J. Macklin and J//'. Le Roy S. Gove for petitioners. Mr. Wilhelmus Mynderse for respondents. No. 608. William J. Hume, Petitioner, v. United States. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. J/>. J. D. Rouse, Mr. William Grant and Mr. H M. Jordan for petitioner. Mr. Solicitor General Richards for respondent. No. 613. Steamship Eagle Point, etc., Petitioner, v. Liverpool, Brazte and River Plate Steam Navigation Company, Limited. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Wilhelmus Mynderse for petitioner. 3/r. Charles C. Burlingham and Mr. Harrington Putnam for respondent. No. 617. Paul Capdevielle, Mayor, etc., et al., Petitioners, v. United States ex rel. D. M. Kilpatrick et al. March 2, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. _>• Frank B. Thomas for petitioners. Mr. J. D. Rouse, Mr-William Grant and Mr. H. M. Jordan for respondents. OCTOBER TERM, 1902. 511 189 U. S. Decisions on Petitions for Writs of Certiorari. No. 247. Board of Commissioners of Wilkes County et al., Petitioners, v. W. N. Coler & Co. March 9, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit granted. Mr. A. C. Avery for petitioners. Mr. John F. Dillon, Mr. Charles Price, Mr. Harry Hubbard and Mr. John M. Dillon for respondents. No. 457. David R. Julian, Sheriff, etc., et al., Petitioners, v. Central Trust Company et al. March 9, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth‘Circuit granted. Mr. A. C. Avery, Mr. Lee S. Overman and Mr. C. A. Mountjoy for petitioners. Mr. Charles Price for respondents. No. 612. Alphonse Emsheimer, Petitioner, v. City of New Orleans. March 9, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. J. D. Rouse, Mr. William Grant and Mr. H. M. Jordan for petitioner. No appearance for respondent. No. 625. Arthur John Buston, Petitioner, v. Pennsylvania Kailroad Company. March 9, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Richard C. Dale, Mr. George W. Pepper and Mr. Samuel Dickson for petitioner. Mr. John G. Johnson and Mr. Frank P. Prichard for respondent. No. 609. Creed and Cripple Creek Mining and Milling Company, Petitioner, v. Uinta Tunnel, Mining and Transportation Company. March 16, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit granted. Mr. Cha/rles 8. Thomas, Mr. Wm. H. Bryant and Mr. H. H. Lee for petitioner. Mr. Charles J. Hughes, Jr., for respondent. 512 OCTOBER TERM, 1902. Decisions on Petitions for Writs of Certiorari. 189 U. S. No. 623. Charles B. Kimbell et al., Petitioners, v. Chicago Hydraulic Press Brick Company et al. March 16, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. JA. Edmund EL. Smalley for petitioners. Mr. Edward Cunningham, Jr., and Mr. Edward C. Eliot for respondents. No. 628. Henry C. Payne, Postmaster General, Plaintiff in Error and Petitioner, v. United States ex rel. National Railway Publication Company. March 16, 1903. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia granted. Mr. Solicitor General Richard* for petitioner. No appearance for respondent. No. 629. Henry C. Payne, Postmaster General, Plaintiff in Error and Petitioner, v. United States ex rel. Railway List Company. March 16, 1903. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia granted. Mr. Solicitor General Richards for petitioner. No appearance for respondent. No. 636. William A. Wright, Comptroller General, Petitioner, r. Louisville and Nashville Railroad Company et al. March 23,1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit granted. Mr. Boykin Wright and Mr. John C. Hart for peti tioner. Mr. Alex. C. King for respondents. No. 638. Mexican National Railroad Company, Pet1 tioner, -y. Niel Jackson. March 23, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appea s for the Fifth Circuit denied. Mr. Thomas W. Dodd for peti tioner. No appearance for respondent. OCTOBER TERM, 1902. 513 189 U. S. Decisions on Petitions for Writs of Certiorari. No. 619. Robert H. Downman et al., Petitioners, v. German Insurance Company of Freeport, III. April 6, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Afr. H. N. Atkinson for petitioners. No appearance for respondent. No. 630. United States, Petitioner, v. Alfred R. Mullins. April 6, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Jfr. Solicitor General Richards for petitioner. Mr. Alexander Pope Humphrey for respondent. No. 633. Weeker Given, Petitioner, v. Times-Republican Printing Company et al. April 6, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. A. A. Lipscomb for petitioner. Mr. A. B. Cummins^ Mr. Wm. W. Dudley and Mr. Louis T. Michener for respondents. No. 631. John R. Clarke, Petitioner, v. Town of Northampton. April 20, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. JZr. Fayette B. Tiffany, Mr. Henry J. Cookinham and Mr. John M. Thurston for petitioner. Mr. Fred. Linus Carroll and Mr. Andrew J. Nellis for respondent. No. 663. Ralph Moore, etc., Petitioner, r. Southern Railway Company. April 20, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Henry H. Ingersoll for petitioner. Hr. A. Henderson and Mr. Leon Jourolmon for respondent. No. 652. H. Bauendahl & Co., Petitioners, v. Jaqob S, vol. clxxxix—33 514 OCTOBER TERM, 1902. Cases Disposed of Without Consideration by the Court. 189 U. S. Bernheimer & Bro. April 27, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. J/r. Adolph G. Wolf for petitioners. Mr. Max J. Kohler for respondents. No. 669. S. Warren Lamson et al., Petitioners, v. Charles F. Hutchins, Executor, etc. April 27, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. Wm. H. Barnum for petitioners. No appearance for respondent. No. 672. The Steamship Ely, etc., Petitioner, -y. William B. Bowring et al. April 27,1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. J. Pa/rker Kirlin and Mr. Charles B. Ilickox for petitioner. JZA Wilhelmus Mynderse for respondents. Cases Disposed of Without Consideration by the Court. From March 2 to May 3, 1903. No. 233. Charles Doherty, Plaintiff in Error, v. State of Vermont. Error to the Supreme Court of the State of Vermont. March 2, 1903. Dismissed, on authority of counsel for plaintiff in error. Mr. Tracy L. Jeffords for plaintiff in error. Mr. C. A. Prout/y for defendant in error. No. 184. Contracting and Building Company of Kentucky, Petitioner, -y. Continental Trust Company. March 4, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit dismissed for the want of prosecution. Mr. Thomas Emery and Mr. John Ford for petitioner. No appearance for respondent. OCTOBER TERM, 1902. 515 189 U. S. Cases Disposed of Without Consideration by the Court. No. 606. Robert H. Billingslea, Petitioner, v. Kansas City Southern Railway Company et al. March 9, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit dismissed, per stipulation. Mr. Presley K. Ewing and Mr. Henry F. Ring for petitioners. Mr. Gardiner Lathrop^ Mr. Thomas R. Morrow and Mr. S. W. Moore for respondents. No. 388. Jeremiah F. McCarthy et al., Plaintiffs in Error and Appellants, v. James F. McCarthy. Error to and appeal from the Court of Appeals of the District of Columbia. March 11,1903. Dismissed, each party to pay its own costs in this court, per stipulation of counsel. Mr. Chapin Brown for plaintiffs in error and appellants. Mr. C. C. Cole and Mr. Vincent A. Sheehy for defendant in error and appellee. No. 283. Joshua M. Sears, Plaintiff in Error, v. Board of Street Commissioners of the City of Boston. Error to the Supreme Judicial Court of the State of Massachusetts. April 6, 1903. Dismissed with costs, per stipulation. Mr. Edward W. Hutchins and Mr. Henry Wheeler for plaintiff in error. Mr. Thomas M. Babson for defendant in error. No. 239. Schooner Gibara Habana, etc., Appellant, v. United States. Appeal from the District Court of the United States for the Southern District of Florida, April 8,1903. Dismissed, pursuant to the tenth rule. Mr. H. A. Herbert and Mr. Benjamin Micou for appellant. The Attorney General tor appellee. No. 240. Schooner Expresso, etc., Appellant, v. United States. Appeal from the District Court of the United States for the Southern District of Florida. April 8,1903. Dismissed, pursuant to the tenth rule. Mr. H. A. Herbert and Mr. 516 OCTOBER TERM, 1902. Cases Disposed of Without Consideration by the Court. 189 U. 8. Benjamin Micou for appellant. The Attorney General for appellee. No. 274. John Lawrence et al., Trustees, etc., Plaintiffs in Error, v. Board of Street Commissioners of the City of Boston. Error to the Supreme Judicial Court of the State of Massachusetts. April 13, 1903. Dismissed with costs, per stipulation. Mr. J. II. Benton, Jr., for plaintiffs in error. Mr. Thomas M. Babson for defendant in error. No. 531. John Lawrence O’Brien, Appellant, v. John H. Shine, United States Marshal, etc. Appeal from the Circuit Court of the United States for the Northern District of California. April 17, 1903. Dismissed with costs, on motion of Mr. John M. Thurston for the appellant. Mr. John M. Thurston for appellant. Mr. Solicitor General Richards and Mr. Morgan H. Beach for appellee. No. 260. V. Van Buren, Plaintiff in Error, v. Margaret U. McKinley. Error to the Supreme Court of the State of Idaho. April 17,1903. Dismissed with costs, pursuant to the tenth rule. Mr. James H. Hawley for plaintiff in error. Mr. Edgar Wilson for defendant in error. No. 270. James P. Witherow, Appellant, v. Carnegie Steel Company, Limited. Appeal from the Circuit Court of the United States for the Southern District of New I'ork. April 23, 1903. Dismissed with costs, pursuant to the tenth rule. Mr. Hector M. Hitchings for appellant. Mr. John R Bennett for appellee. No. 262. Cleveland, Cincinnati, Chicago and St. Lovis OCTOBER TERM, 1902. 517 189 U. 8. Cases Disposed of without Consideration by the Court. Railway Company, Plaintiff in Error, v. Village of Clyde, Ohio. Error to the Supreme Court of the State of Ohio. April 24,1903. Dismissed with costs, on authority of counsel for plaintiff in error. JZ?. John T. Dye for plaintiff in error. Mr. Homer Metzgar and Mr. S. S. Richards for defendant in error. No. 284. Emerson Chamberlain, Appellant, r. Peoria, Decatur and Evansville Railway Company et al. Appeal from the Circuit Court of the United States for the District of Indiana. April 27, 1903. Dismissed per stipulation. Mr. Edward B. Whitney for appellant. Mr. J. M. Dickinson for appellees. No. 281. Virginia-Carolina Chemical Company, Petitioner, v. Home Insurance Company of New York et al. April 27, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit. Dismissed for the want of prosecution. Mr. Henry A. M. Smith for petitioner. Mr. Augustin T. Smythe and Mr. Alex. C. King for respondents. ALLOTMENT OF JUSTICES. SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1902. March 9, 1903. Order : There having been an associate justice of this court appointed since the commencement of this term, it is ordered that the following allotment be made of the Chief Justice and associate justices, agreeably to the act of Congress in such case made and provided, and that such allotment be entered of record, viz : For the First circuit, Oliver Wendell Holmes, associate justice. For the Second circuit, Rufus W. Peckham, associate justice. For the Third circuit, Henry B. Brown, associate justice. For the Fourth circuit, Melville W. Fuller, Chief Justice. For the Fifth circuit, Edward D. White, associate justice. For the Sixth circuit, John M. Harlan, associate justice. For the Seventh circuit, William R. Day, associate justice. For the Eighth circuit, David J. Brewer, associate justice. For the Ninth circuit, Joseph McKenna, associate justice. (518) INDEX, ACTION. 1. Where it appears by the articles of association of a corporation that the remedy by forfeiture and sale for non-payment of assessments on stock is cumulative, such remedy is not a bar to an action at law for the debt, and such sale or forfeiture is not a condition precedent to the right to recover the assessments. Nashua Savings Bank v. Anglo-American Co., 221. 2. Prior to the passage of the act of Congress “ to further regulate com- merce with foreign nations and among the States ” approved February 19, 1903, a District Attorney of the United States under the direction of the Attorney General of the United States given in pursuance of a request made by the Interstate Commerce Commission was without power to commence a proceeding in equity against a railroad corporation to restrain it from discriminating in its rates between different localities. Held, therefore, that there was error committed below in refusing to sustain a demurrer of a defendant railroad company to a bill filed by a District Attorney of the United States under the circumstances stated. As, however, the act of February 19, 1903, expressly conferred the power which did not theretofore exist and as that act specifically provided that the new remedies which it created should be applicable to all causes then pending, Held, that although the action of the lower court in refusing to sustain the demurrer would be overruled, the case would not be finally disposed of but would be remanded for further proceedings in consonance with the provisions of the act of February 19, 1903. Missouri Pacific By. Co. v. United States, 274. 3. A suit to foreclose a mortgage is not a proceeding in rem which will bind persons who are not parties thereto, and the fact that the decree covered the property in question does not conclude strangers to the suit. Pardee v. Aldridge, 429. See Constitutional Law, 4; Maritime Law, 1, 2; Courts, 8; Public Lands, 1; Statutes, 9. ACTS OF CONGRESS. See Action, 2; Practice, 1, 4; Appeal and Writ Public Lands, 1, 2, 8; of Error, 1; Public Officers, 1, 3; Army Officers; Public Records; Bankruptcy; Railroad Land Grants; Executive Powers; Statutes, 3, 4; Jurisdiction, 1, D; Stockholders, 4; Taxation, 2. 519 520 INDEX. ADMIRALTY. See Maritime Law; States, 2; Statutes, 8. ALIENS. As the existing treaty with Japan expressly excepts from its operation any regulation relating to police and public security, and as the various acts of Congress forbidding aliens of whatevei- country to enter the United States who are paupers or persons likely to become a public charge, are regulations for police and public security, aliens from Japan of the prohibited class have no right to enter or reside in the United States. Quaere, Whether, even in the absence of such a provision in the treaty, the “full liberty to enter, reside,” etc., clause refers to that class in either country who from habits or conditions are the object of police regulations designed to protect the general public against contact with dangerous or improper persons. The Japanese Immigrant Case, 86. See Congress ; Executive Officers. APPEAL AND WRIT OF ERROR. 1. Where diversity of citizenship does not exist and the jurisdiction of the Circuit Court rests solely on the ground that the cause of action arose under the Constitution of the United States, an appeal lies directly to this court, under section 5 of the Judiciary Act of 1891, and if an appeal should be presented to the Circuit Court of Appeals and there go to decree, this court will reverse the decree, not on the merits, but by reason of want of jurisdiction in that court. It is not the intention of the Judiciary Act of 1891 to allow two appeals in cases of that description. Union & Planters' Bank v. Memphis, 71. 2. Where a bill is based not only upon diversity of citizenship, but also upon the alleged unconstitutionality of municipal ordinances as impairing the obligation of a contract, an appeal lies to this court and the whole case is opened for consideration. Davis