¿ ç~ UNITED STATES REPORTS VOLUME 191 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBEg^TORM, W CHARLES HENRY BUTLER REPOUTER THE BANKS LAW PUBLISHING CO. 21 MURRAY STREET, NEW YORK 1904 Copyright, 1903,1904, by THE BANKS LAW PUBLISHING COMPANY. 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. HENRY 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 General. HENRY MARTYN HOYT, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Abbeville Electric Light and Power Company, Western Electric Supply Company v. .... . 577 Adams, Armour Packing Company v..................564 yE tn a Life Insurance Company v. Board of Commissioners of Hamilton County, Kansas ..... 572 Aguirre, Ross v. ........ 60 Aitken, Oceanic Steam Navigation Company v. . . 572 Allen v. Pullman’s Palace Car Company . . . 171 Allen, United States ex rel. Regina Music Box Company v. . . . . . . . . . 570 American Association, Treece v...................568 American Bonding and Trust Company v. Baltimore and Ohio Southwestern Railroad Company . . .575 Anglo-American Provision Company v. Davis Provision Company No. 1 ...... . 373 Anglo-American Provision Company v. Davis Provision Company No. 2 ..........................376 Arbuckle v. Blackburn ....... 405 Armour Packing Company v. Adams .... 564 'Arpine v. Valdez ,..............................562 Arthur v. Baron De Hirsch Fund...................570 Atkin v. Kansas................................ 207 Atkinson, Battle v.............................^ 559 Babcock, Toltec Ranch Company -y. . . . . 542 Baltimore and Ohio Southwestern Railroad Company, American Bonding and Trust Company v. . . 575 Baltimore and Potomac Railroad Company v. Landrigan 461 Baron de Hirsch Fund, Arthur v...... 570 Battle w. Atkinson . . . . . , , e 559 v vi TABLE OF CONTENTS. Table of Cases Reported. Beam v. Schwab..................................... Beasley v. Texas and Pacific Railway Company Berwind-White Coal Mining Company v. Martin . Bidwell, Czarnikow, MacDougall and Company (Limited) v.......................................... Bishop, Weltmer v. ....... Black, Supreme Council American Legion of Honor v. . Blackburn, Arbuckle v.............................. Blake, Ex parte.................................... Blount, McGuire v. ...... Board of County Commissioners of the County of Lake v. Schradsky..................................... Board of County Commissioners of Hamilton County, Kansas, JEtna Life Insurance Company v. Boston Tow Boat Company v. Chase Machine Company Boynton, Haggart v............................ . Brislin v. Carnegie Steel Company (Limited) . Bryson v. Ocean Steamship Company . . . . Buffalo Hump Mining Company, Clark v. . . . Buford, Continental National Bank v................ Cable v. United States Life Insurance Company Campbellsville Lumber Company, Hubbert v. Carnegie Steel Company (Limited), Brislin v. Central Trust Company, Warren v. . . . . Chase Machine Company, Boston Tow Boat Company v. Chicago Title and Trust Company, First National Bank v............................................. Chisholm v. Hall................................... Choctaw, Oklahoma and Gulf Railway Company v. Holloway ........ Choctaw, Oklahoma and Gulf Railway Company v. McDade Choctaw, Oklahoma and Gulf Railway Company v. Tennessee........................................ City of Palatka, In re ....... Clapp v. MacFarland ....... Clark v. Buffalo Hump Mining Company PAGE 561 492 569 559 560 568 405 102 573 561 572 572 73 576 570 571 119 288 70 576 568 572 574 571 334 64 326 558 564 571 TABLE OF CONTENTS. vii Table of Cases Reported. PAGE Clayton, Exchange Bank v.............................567 Climax Refining Company, Vacuum Oil Company v. .574 Colorado Postal Telegraph-Cable Company, Union Pacific Railroad Company v. ..... . 577 Columbia Savings and Loan Association, Kinney v. . 78 Comptoir National D’Escompte, State Board of Asses- sors v...........................................388 Cone Export and Commission Company, Kahn v. . . 562 Consolidated Traction Company, Dickinson v. . . 567 Continental National Bank v. Buford .... 119 Cook, Toltec Ranch Company v.........................532 County of Plumas, Wheeler v..........................571 County of Sierra, Flanigan v.........................571 Czarnikow, MacDougall and Company (Limited) v. Bid- well .......................................... 559 Dalles, Portland and Astoria Navigation Company, Jacobsen v............................................575 Davis Provision Company, Anglo-American Provision Company v. No. 1 ...... . 373 Davis Provision Company, Anglo-American Provision Company v. No. 2.................................376 Defiance Water Company v. Defiance .... 184 Defiance, Defiance Water Company v. . . . . 184 Denver and Rio Grande Railroad Company, United States -y.........................................84 Deposit Bank v. Frankfort............................499 De well v. Mix.......................................564 Dexter, Ensenada Estate v. ...... 564 Dickinson v. Consolidated Traction Company . . 567 Dimmick v. United States.............................574 District of Columbia, Moshenvel v. .... 247 District of Columbia, Sinclair v...... 565 Dockery, Missouri v..................................165 Donovan v. Pennsylvania Company .... 571 Douglas Company v. Stone.............................557 Duplan Silk Company, Spencer v...... 526 viii TABLE OF CONTENTS. Table of Cases Reported. Eastern. Trust and Banking Company, Kinney v. . Eastern Trust and Banking Company, Wooster v. . Eccles v. Missouri Pacific Railway Company . Eckington and Soldiers’ Home Railway Company v. Mc- Devitt ........................................ Elder Dempster Shipping (Limited), Pouppirt v. Ensenada Estate v. Dexter.......................... Eshelby v. Watts................................... Exchange Bank v. Clayton........................... Ferrenbach, Mutual Reserve Life Insurance Company v.. First National Bank -v. Chicago Title and Trust Com- pany .......................................... Flanigan v. County of Sierra....................... Fleming, Howard v.................................. Foster, Paine v.................................... Frank, Herold v.................................... Frankfort, Deposit Bank v.......................... French Republic v. Saratoga Vichy Spring Company Gadsden, Schuyler National Bank v.................. Gates v. Parmly . . -....................... Gertgens v. O’Connor ....... Gregg v. Metropolitan Trust Company .... Guaranty Company v. Pressed Brick Company Hageman, Southern Electric Railway Company . Haggart v. Boynton................................. Hall, Chisholm v. . ............................ Hammond, Moore v................................... Hardeman v. Turner................................. Harrison, Hughes v................................. Hawaiian Tramways Company (Limited) v. Honolulu Rapid Transit and Land Company (Limited) . Heinz v. Macfarland................................ Henderson, Supreme Council American Legion of Honor v........................................ Herold -w. Frank................................... PAGE 576 575 563 103 576 664 564 567 569 574 571 126 562 558 499 427 451 557 237 574 416 572 573 571 569 562 575 565 566 568 558 TABLE OF CONTENTS. ix Table of Cases Reported. PAGE Hibben v. Smith................................310 Hocke v. New York Central and Hudson River Railroad Company........................... • • 569 Holden v. Stratton.............................115 Holloway, Choctaw, Oklahoma and Gulf Railway Com- pany v.................................... 334 Honolulu Rapid Transit and Land Company (Limited), Hawaiian Tramways Company (Limited) v. . . 565 Howard v. Fleming ........................... 126 Howard v. North Carolina ...... 126 Howe Scale Company v. Wyckoff ..... 573 Hubbert v. Campbellsville Lumber Company ... VO Hughes v. Harrison ....... 575 Hughes v. Kepley ........ 557 Hughes, Pennsylvania Railroad Company v. . . . 477 Indiana, Smith v...............................138 Jacobsen v. Dalles, Portland and Astoria Navigation Company ........ 575 Jeung Juen Ho v. United States .... 561 Jeung Lin Heung v. United States .... 565 Johnstown Mining Company, In, re . . . . 559 Joins, Ex parte ........ 93 Joplin v. Southwest Missouri Light Company . . 150 Kahn -y. Cone Export and Commission Company . 563 Kansas, Atkin v. ..... . 207 Kansas Eight Hour Law . - . . . . 207 Kauffman, Raeder -y............................567 Keene Five Cent Savings Bank, Reid v. . . . 567 Kepley, Hughes -y. . ....................557 King Bridge Company, Salliotte v...............569 Kinney -y. Columbia Savings and Loan Association . 78 Kinney v. Eastern Trust and Banking Company . .576 Knott, Louisville Trust Company v. ... . 225 La Compagnie Française Des Cables Télégraphiques, Slaughter v. . ....... 574 Lake v. Rush...................................571 X TABLE OE CONTENTS. Table of Cases Reported. PAGE Landrigan, Baltimore & Potomac Bailroad Company v. 461 Leake v. Wittman ...................................566 Louisville Trust Company v. Knott .... 225 MacFarland, Clapp v.................................564 McClung v. Penny....................................576 McDade, Choctaw Oklahoma and Gulf Railway Company v..........................................64 McDevitt, Eckington and Soldiers’ Home Railway Company v.........................................103 McGuire -w. Blount.............................573 McLoughlin v. Rapheal Tuck Company . . . 267 McPherson v. Macfarland........................566 Macalester College v. Minnesota .... 565 Macfarland, Heinz v........ 566 Macfarland, McPherson v........................566 Marye, People’s National Bank v. . . . . 272 Martin, Berwind-White Coal Mining Company v. . . 569 Metropolitan Trust Company, Gregg v. . . .574 Michigan, Van Pelt v. ..............................561 Minnesota, Macalester College v.....................565 Missouri v. Dockery.................................165 Missouri Pacific Railway Company v. Eccles . . 563 Mix, Dewell v.......................................564 Moore v. Hammond....................................569 Morgan, Wright v.....................................55 Mosheuvel v. District of Columbia .... 247 Munson, Reading Company v...........................570 Mutual Life Reserve Insurance Company, Roth v. . 570 Mutual Reserve Life Insurance Company v. Ferrenbach 569 National Surety Company v. United States . . 573 New York and Western Railway Company v. Sims . 441 New York Central and Hudson River Railroad Company, Hocke v. 569 New York, New Haven and Hartford Railroad Company v. Weisberg ....... 558 Nordlingen v. United States.........................575 TABLE OF CONTENTS. xi Table of Cases Reported. PAGE Norfolk and Western Railway Company v. Sins . . 441 North Carolina, Howard v..........................126 Northern Securities Company v. United States . . 555 Ocean Steamship Company, Bryson v. . . .570 Oceanic Steam Navigation Company, Limited, v. Aitkin 572 O’Connor, Gertgens v..............................237 Ohio Coal Company, Whitcomb v. .... 567 Owensboro v. Owensboro Waterworks Company . 358 Owensboro Waterworks Company, Owensboro v. . 358 Paine v. Foster...................................562 Palatka, City of, In re...........................558 Parmly, Gates v. . ....... 557 Pennsylvania Company, Donovan v...................571 Pennsylvania Railroad Company v. Hughes . . 477 Penny, McClung v..................................576 People’s National Bank v. Marye .... 272 Pierson, United States v..........................562 Pouppirt v. Elder Dempster Shipping (Limited) . .576 Powers, Wisconsin and Michigan Railway Company v. 379 Pressed Brick Company, Guaranty Company v. . . 416 Pullman’s Palace Car Company, Allen v. . . . 171 Raeder v. Kauffman................................567 Raphael Tuck Company, McLoughlin v. . . . 267 Reading Company v. Munson.........................570 Regina Music Box Company v. Allen .... 570 Reid v. Keene Five Cent Savings Bank . . . 567 Robert W. Parsons, The ...... 17 Ross v. Aguirre ........ 60 Roth v. Mutual Life Reserve Insurance Company . . 570 Rush, Lake v. ....................................571 Salliotte v. King Bridge Company . . . . .569 Saratoga Vichy Spring Company, French Republic v. . 427 Schradsky v. Board of County Commissioners of the County of Lake................................561 Schuyler National Bank v. Gadsden .... 451 xii TABLE OF CONTENTS. Table of Cases Reported. PAGE Schwab, Beam v. . . . » . . . .561 Searle v. Hereth Company, Warner v. ... 195 Sharp v. United States .......................341 Sierra County, Flanigan v.....................571 St. Clair Steamship Company, Watson v. . . . 573 St. Louis Hay and Grain Company v. United States . 159 Sherborne, Wilcox & Gibbs Sewing Machine Company v. . ...................... 568 Sims, Norfolk and Western Railway Company-w. . . 441 Sinclair v. District of Columbia .... 565 Slaughter v. La Compagnie Française Des Cables Télégraphiques ...............................574 Smith, Hibbin v...............................310 Smith v. Indiana..............................138 Smith (Mrs. Frank S.), Texas Pacific Railway Company v..................................... . 563 Smith (William S.), Texas and Pacific Railway Company v. ........ 563' Southern Electric Railway Company v. Hageman . 572 Southwark, The..................................1 Southwest Missouri Light Company, Joplin v. . . 150 Spencer v. Duplan Silk Company................526 Spreckels v. Wittman......................... . 566 State Board of Assessors v. Comptoir National D’Escompte ...................................388 Stone, Douglas Company v. . ... . 557 Stranahan, Warner, Barnes and Company (Limited) v. . 560 Stratton, Holden -w...........................115 Supreme Council American Legion of Honor v. Black . 568 Supreme Council American Legion of Honor v. Hender- son ......................................568 Tennessee, Choctaw, Oklahoma & Gulf Railway Com- pany v.......... 326 Texas & Pacific Railway Company, Beasley v. . . 492 Texas & Pacific Railway Company v. Smith (Mrs. Frank S.)..................................... 563 Texas & Pacific Railway Company v. Smith (William L.). 563 TABLE OF CONTENTS. xiii Table of Cases Reported. PAGE Tierney, Weston v. . . . . . ■ . .560 Toltec Ranch Company v. Babcock .... 542 Toltec Ranch Company v. Cook ..... 532 Town of Weston v. Tierney . . . . . . 560 Treece v. American Association . . . . . 568 Turner, Hardeman v.........................• . . 562 Union Pacific Railroad Company v. Colorado Postal Telegraph-Cable Company................................577 United States v. Denver & Rio Grande Railroad Company 84 United States, Dimmick v...............................574 United States, Jeung Juen Ho v. . . . . . 561 United States, Jeung Lin Heung, v. . 565 United States, National Surety Company v. . . . 573 United States, Nordlinger v............................575 United States, Northern Securities Company v. . . 555 United States v. Pierson . ■ . . . . . 562 United States ex rel. Regina Music Box Company v. Allen..............................................570 United States, St. Louis Hay and Grain Company v. . 159 United States, Sharp v. . . . 341 United States, United States Fidelity and Guaranty Company y..........................................416 United States, White v. ...... 545 United States, Woey Ho v. . . . . . . 558 United States, Yee Ngoy v..............................563 United States Fidelity and Guaranty Company v. United States ...........................................• 416 United States Life Insurance Company, Cable v. . . 288 Vacuum Oil Company y. Climax Refining Company . 754 Valdez, Arpine v.......................................562 Van Pelt v. Michigan 561 Warner, Barnes & Company (Limited) v. Stranahan . 560 Warner y. Searle and Hereth Company . . .195 Warren y. Central Trust Company .... 568 Watson y. St. Clair Steamship Company . . . 573 xiv TABLE OF CONTENTS. Table of Cases Reported. PAGE Watts, Eshelby -v..................................564 Weisberg, New York, New Haven and Hartford Rail- road Company v.................................558 Weltmer v. Bishop ........ 560 Western Electric Supply Company v. Abbeville Electric Light and Power Company........................577 Weston v. Tierney..................................560 Wheeler v. County of Plumas........................571 Whitcomb v. Ohio Coal Company......................567 White v. United States ............................545 Wilcox & Gibbs Sewing Machine Company v. Sherborne. 568 Wisconsin and Michigan Railway Company v. Powers . 379 Wittman, Leake -y..................................566 Wittman, Spreckels v........ 566 Woey Ho v. United States...........................558 Wooster v. Eastern Trust and Banking Company . 575 Wright v. Morgan . . . . . . .55 Wyckoff, Howe Scale Company -y. .... 573 Yee Ngoy v. United States ...... 563 TABLE OF CASES CITED IN OPINIONS. PAGE PAGE Adams v. Shelbyville, 154 Ind. Barnett v. Denison, 145 U. S. 135 221 467 320 Barron v. Burnside, 121 U. S. jEtna Life Ins. Co. v. Smith, 73 186 306,307 Fed. Rep. 318 306 Bayonne, The, 159 U. S. 687 558 Akers v. Akers, 117 IT. S. 197 81 Beach v. Von Delten, 139 Cal. Alabama, The, 22 Fed. Rep. 449 30 462 63 Alexander v. Merrick, 121 Ill. Beals v. Cone, 188 U. S. 184 485 606 286 Beauvais v. St. Louis, 169 Mo. 500 262 Allen v. Newbury, 21 How. 244 32 Bedford v. Neal, 143 Ind. 425 261 Allgeyer v. Louisiana, 165 U. S. Belfast, The, 7 Wall. 624 578 220 24, 35, 36, 53 American Ins. Co. v. Gibson, 104 Bergmann ». Backer, 157 U. S. Ind. 336 149 655 135 Andrews v. Andrews, 188 IT. S. Bernards Township v. Steb- 14 374 bins, 109 U. S. 341 194 Anglo-Am. &c. Co. r. Davis Pro- Bethel v. Demaret, 10 Wall. 537 486 vision Co., 169 N. Y. 506 373 Bienville &c. Co. v. Mobile, 175 Anglo-Am. &c. Co. v. Davis Pro- U. S. 109; S. C., 186 U. S. 212 158 vision Co., 105 Fed. Rep. 536 377 Birmingham v. Starr, 112 Ala. 98 261 Ankeny v. Clark, 148 U. S. 345 Blackburn v. Portland &c. Co., 538, 539 175 U. S. 571 191 Anthony v. Railroad Company, Blackstone v. Miller, 188 U. S. 162 Mass. 60 350 189 403 Arbuckle v. Blackbum, 113 Fed. Blake v. McClung, 172 U. S. 239 Rep. 616-408; S. C., 191 U. S. 307, 374 405 530 Blythe Co. e. Blythe, 172 U. S. 644 235 Arndt v. Griggs, 134 IT. S. 316 45 Blythe v. Hinckley, 173 IT. S. Ashby’s Case, 60 Kan. 101 220 501 235 Asher v. Texas, 128 IT. S. 129 450 Board of Com’rs v. Justice, 133 Atlas, The, 93 IT. S. 302 32 Ind. 89 ' 324 Austin v. Luey, 21 L. D. 507 245 Board of Com’rs v. Young, 59 Avon, The, 1 Brown’s Ad., 170; Fed. Rep. 96 58 8. C., Fed. Cas. 680 27 Boon v. The Hornet, Crabbe, 426 40 Ayers v. Polsdorfer, 187 IT. S. Borgmeyer v. Idler, 159 U. S. A 585 532 408 527 Aztec Mining Co. v. Ripley, 151 Boyd v. Alabama, 94 IT. S. 645 523 IT. S. 79 195 Boyer, Ex parte, 109 IT. S. 629 Backus v. Fort Street &c. Co., 28, 30 35 169 U. S. 557 45 Bradley v. Bolles, Abbott’s ’ Bacon v. Parker, 137 Mass. 309 164 Ad. Repts. 569 40 Bacon v. Texas, 163 U. S. 207 557 Bradley v. Frankfort, 99 Ind. Bank of Augusta Earle, 13 417 * 324 Pet. 519 375 Braham v. Beachim, 7 Ch. Div. Barden v. Northern Pacific R. 848 436 . n 134 S; 288 538’ 540> 642 Brennan v. Titusville, 153 IT. S. Z». Johnson, 106 Fed. Rep. 452 56 Morgan v. Rogers, 79 Fed. Rep. 577 56,58 Morgan v. Thornhill, 11 Wall. 65 117 Morgan’s Executor v. Gay, 19 Wall. 81 83 Morley v. Lake Shore &c. Ry., 146 U. S. 162 557 Morris v. Gilmer, 129 U. S. 315 194, 195 Morrison v. Hershire, 32 Iowa, 271 287 Mosheuvel «. District of Col., 17 App. D. C. 401 252 Moses Taylor, The, 4 Wall. 411 . 24,36 Mount Pleasant v. Beckwith, 100 U. S. 514 221 Mueller v. Nugent, 180 U. S. 640; 8. C., 184 U. S. 1 119 Muller v. Railway Company, 83 Cal. 240 350 Muller v. District of Columbia, 16 D. C. 286 263 Muse v. Arlington Hotel Co., 168 U. S. 430 530 Mutual Life Ins. Co. v. McGrew, 188 U. S. 291 557, 559 National Bank v. Kimball, 103 U. S. 732 284 Neal ». Delaware, 103 U. S. 370 194 Nelson v. Northern Pacific R. R., 188 U. S. 108 . 538,541 New Hampshire v. Louisiana, 108 U. S. 76 438 TABLE OF CASES CITED. xxi PAGE Newman v. Alvord, 51 N. Y. 189 435 New Orleans v. Benjamin, 153 U. S. 411 191, 194 New Orleans v. Citizens Bank, 167 U. 8. 371 513 New Orleans v. Stempel, 175 U. S, 309 400, 402, 403 New Orleans Water Works Co. v. Louisiana, 185 U. S. 336 557, 561 Newport Light Co. v. Newport, 151 U. S. 527 325 New York Life Ins. Co. v. Cravens, 178 U. S. 389 307 Nichols v. Laurens, 96 Iowa, 388 261 Noonan». Caledonia Mining Co., 121 U. S. 393 69 Norcross v. James, 140 Mass. 188 495, 496 Northern Belle, The, 9 Wall. 526 30 Northern Central Ry. v. Mary- land, 187 U. S. 258 374, 385 Northern Pacific R. R. v. Bab- cock, 154 U. S. 190 68 Northern Pacific R. R. ». Free- man, 174 U. S. 379 474 Northern Pacific R.R. ».Herbert, 116 U. S. 642 68 Northern Pacific R. R. ». Lewis, 162 U. S. 366 90 Northern Pacific R. R. ». Wash- ington, 142 U. S. 492 497, 498 Norwood ». Baker, 172 U. S. 269 326 O’Brien ». Wheelock, 184 U. S. 450 523 O’Connor ». Gertgens, 85 Minn. 481 237, .243 Ohio &c. Ins. Co. ». Debolt, 16 How. 416 517 Oler, The, 2 Hughes, 12; SC., Fed. Cas. 10,485 28 O’Neil ». Vermont, 144 U. S. 323 448, 449 Osborn ». Bank of U. S., 9 Wheat. 738 122 Osborne ». Florida, 164 IT. S. _ 650 180, 181, 182 Owensboro ». Owensboro Water Works Co., 115 Fed. Rep. 318 359 Oxley Stave Co. ». Butler County, 166 U. S. 648 559 Pacific Railroad ». Seely, 45 Mo. 212 497 Pacific Railroad Removal Cases, 115 U. S. 1 ’ 122 Paquete Habana, The, 175 U S 677 558 PAGE Parish ». Municipality, 8 La. Ann. 145 496 Parke ». Seattle, 8 Wash. 78 350 Parker ». Overman, 18 How. 137 82 Parkhurst ». Berdell, 110 N. Y. 386 511 Paul ». Virginia, 8 Wall. 168 374 Peck ». Jennes, 7 How. 612 233 People ». Chicago &c. R. R., 130 Ill. 175 497 People ». Parvin, 74 Cal. 549 63, 64 People’s Ferry Co. ». Beers, 20 How. 393 39 People’s Nat’l Bank v. Marye, 107 Fed. Rep. 570 272 Perrine ». Slack, 164 U. S. 452 558 Petri ». Commercial Bank, 142 IT. S. 644 122, 124 Peyroux ». Howard, 7 Pet. 324 24 Phenix Ins. Co., Ex parte, 118 IT. S. 610 41 Phoenicia, The 90 Fed. Rep. 116 16 Pickard ». Pullman Co., 117 IT. S. 34 178, 183 Pioneer, The, 21 Fed. Rep. 426 30 Pittsburg R. R. ». Loan & Trust Co., 172 U. S. 493 515 Pittsburg &c. Ry.». Backus, 154 IT. S. 421 ' 170 Pitttsburg &c. Ry. v. Seivers, 67 N. E. Rep. 680 261 Planter, The, 7 Pet. 324 24 Plymouth, The, 3 Wall. 20 41 Pomeroy v. Westfield, 154 Mass. 462 260 Pomfrey ». Saratoga Springs, 104 N. Y. 459 206 Poole ». Kermit, 59 N. Y. 554 24 Powers ». Chesapeake &c. Ry. 169 U. S. 92 120 Press Publishing Co. ». Monroe, 164 U. S. 105 527 Propeller Commerce, The, 1 Black, 574 51 Prevost ». Gratz, 6 Wheat. 481 439 Prince Georges County ». Burgess, 61 Md. 29 263 Pullman Co. ». Adams, 189 IT. S. 420 181 Quickstep, The, 9 Wall. 665 32 Railroad Commission Cases, 116 IT. S. 307 370 Rector &c. of Christ Church ». Philadelphia County, 24 How. 300 385 Reese». United States, 9 Wall. 13 423 Reggel, Ex parte, 114 IT. S. 642 45 Reid ». Vanderheyden, 5 Cow. 719 ’ 149 xxii TABLE OF CASES CITED. PAGE Rice, In re, 155 U. S. 396 102 Roach v. Chapman, 22 How. 129 39 Robb v. Connelly, 111 U. S. 624 194 Robbins v. Shelby Taxing Dist., 120 U. S. 489 449 Robertson v. Cease, 97 U. S. 646 83 Rockford &c. R. R. v. Beck- emeier, 72 Ill. 267 113 Rogers v. Burlington, 3 Wall. 654 221 Rogers Park &c. Co. v. Fergus, 180 U. S. 624 371 Rowson v. Atlantic Transport Co., L. R. 1903, 1 K. B. 114 10 Ruggles v. Illinois, 108 U. S. 526 370 Ryder v. Holt, 128 U. S. 525 206 St. Joseph &c. R. R. v. Orr, 8 Kan. 419 350 St. Joseph &c. R. R. v. Ryan, 11 Kan. 602 497 St. Lawrence, The, 1 Black, 522 24 St. Louis Hay Co. 15. United States, 37 C. Cl. 281 161 Salt Co. r. East Saginaw, 13 Wall. 373; S. C., 19 Mich. 259 385 Salt Co. i>. Tarpey, 142 U. S. 241 538, 540, 541 Samples v. Atlanta, 95 Ga. 110 261 Sandwich v. Dolan, 141 Ill. 430 261,262 Santa Ana v. Harlin, 99 Cal. 538 350 Savage v. United States, 92 U. S. 382 163 Saxlehner 15. Eisner, 179 U. S. 19 437, 439 Schaeffer 15. Werling, 188 U. S. 516 276, 321 Schaeffer 15. Werling, 156 Ind. 704 320, 321 Scheid, In re, 104 Fed. Rep. 870 116 Scholten v. St. Louis &c. R. R., 73 S. W. Rep. 915 114 Schuyler Nat’l Banki?. Gadsden, 179 U. S. 384 454 Scott 15. Sandford, 19 How. 393 378 Scott ». Young American, New- berry’s Ad. 101 27 Searle & Hereth Co. 15. Warner, 112 Fed. Rep. 674 198 Seixo 15. Provezende, L. R. 1 Ch. App. 192 436 Shank 15. Smith, 61 N. E. Rep. 932 321 Sharon 15. Tucker, 144 U. S. 533 538 Sharpe». United States, 112Fed. Rep. 893 343 Shelly 15. Guy, 11 Wheat. 361 538 Sheppard 15. Steele, 43 N. Y. 52 25, 39 PAGE Shields 15. Coleman, 157 U. S. 168 236 Shipley 15. Procter, 177 Mass. 498 260 Shook 15. Cohoes, 108 N. Y. 648 261 Shreveport 15. Cole, 129 U. S. 36 191, 194 Sims 15. Norfolk &c. R. R., 130 N. C. 556 443 Skaneateles &c. Co. 15. Skane- ateles, 184 U. S. 354 157 Smith 15. Alabama, 124 U. S. 465 489 Smith 15. Humphrey, 20 Mich. 398 285 Smith 15. McKay, 161 U. S. 355 233, 234, 235 Smith 15. United States, 2 Wall. 219 423 South Boston &c. Co. 15. United States, 118 U. S. 37 163 Southern Pacific R. R. 15. United States, 168 U. S. 1 514 Southwark, The, 104 Fed. Rep. 103; 8. C., 48 C. C. A. 123 3 Southwest Missouri &c. Co. 15. Joplin, 101 Fed. Rep. 23; 8. C., 113 Fed. Rep. 817 151 Spencer 15. Duplan Silk Co., 112 Fed. Rep. 638 527 Spencer 15. Merchant, 125 U. S. 345 323 Spies t). Illinois, 123 U. S. 131 561 Spring Valley Water Works r. Schottler, 110 U. S. 347 322 Stanton 15. Richardson, L. R. 7 C. P. 421 9 State 15. Commissioners, 28 Kan. 431 221 State 15. Howard, 129 N. C. 584 127 State 15. Lake KoenCo., 63 Kan. 394 221 State 15. Smith, 158 Ind. 543- 139 State 15. Stackhouse, 14 So. Car. 417 102 State 15. Talty, 166 Mo. 529 170 State 15. Western Union T. Co., 165 Mo. 502 170 State Bank 15. Knoop, 16 How. 369 221 State Board 15. People, 191 Ill. 528 170 State Railroad Tax Cases, 92 U. S. 575 283, 284 Steffes 15. Lemke, 40 Minn. 27 427 Stephens 15. Cherokee Nation, 174 U. S. 445 100 Steuart 15. Meyer, 54 Md. 454 286 Stevens 15. Nichols, 130 U. S. 230 81 Stockard 15. Morgan, 185 U. S. 27 450 TABLE OF CASES CITED. xxiii PAGE Stone ». Deposit Bank, 174 U. S. 800 504, 524 Stuart v. Easton, 170 U. S. 383 58 Studebaker v. Markley, 7 Ind. App. 368 149 Supervisors v. Stanley, 105 U. S. 305 283 Sylvia, The, 171 U. S. 462 9 Syracuse, The, 12 Wall. 167 32 Taylor r. Carryl, 20 How. 583 233 Telford v. Keystone Lumber Co., 18 L. D. 176; S. C., 19 L. D. 141 245 Texas & Pacific Ry. v. Archi- bald, 170 U. S. 665 68 Texas & Pacific Ry. v. Gentry, 163 U. S. 353 474 Texas & Pacific Ry. v. Marshall, 136-U. S. 393 114, 497 Texas & Pacific Ry. v. Scott, 23 C. C. A. 424 497 Thames, The, 61 Fed. Rep. 1014; S. C., 10 C. C. A. 232 11 Thayer v. Life Association, 112 U. S. 717 83 Thomas Carrol, The, 23 Fed. Rep. 912 28 Thompson b. Boston, 148 Mass. 387 350 Thomas Jefferson, The, 10 Wheat. 428 25 Thompson b. Montgomery, 41 Ch. Div. 35 436 Toltec Ranch Co. v. Babcock, 66 Pac. Rep. 876 544 Toltec Ranch Co. v. Cook, 191 U. S. 532 544 Tomlinson v. Jessup, 15 Wall. 454 386, 387 Town of Weston v. Tierney, 184 U. S. 695 560 Trade-Mark Cases, 100 U. S. 82 202 Travis b. Waters, 12 Johns. 500 149 Tucker v. Ferguson, 22 Wall. 385' , 527 Turner b. Richardson, 180 U. S. 87 557 Turpin v. Lemon, 187 U. S. 51 148 Tyler v. Judges, 179 U. S. 405 148 Union & Planter’s Bank b. Memphis, 189 U. S. 71 517, 523 524 Union Pacific Ry. b. O’Brien, 161 U. S. 451 67,332,338 United States b. American Bell Tel. Co., 167 U. S. 224 438 United States v. American Bond- ing &c. Co., 89 Fed. Rep. 921 426 PAGE United States v. Beebe, 127 U. S. 338 438 United States B. Cook, 19 Wall. 591 91 United States v. Denver & R. G. R. R., 66 Pac. Rep. 550 86 United States v. Des Moines &c. Co., 142 U. S. 510 438 United States b. Fisher, 2 Cr. 358 550 United States v. Freel, 186 U. S. 309 424 United States v. Hazzard, 53 N. Y. App. Div. 410 427 United States v. Hoffman, 4 Wall. 158 102 United States v. Jahn, 155 U. S. 109 377, 378 United States v. More, 3 Cr. 159 236 United States b. Railroad Co., 17 Wall. 322 221 United States v. Sanges, 144 U. S. 310 236 United States v. Thompson, 93 U. S. 586 486 United States v. Winona &c. R. R., 165 U. S. 463 243 United States Life Ins. Co. v. Cable, 98 Fed. Rep. 761; S. C., 39 C. C. A. 264 290 Vicksburg &c. Railroad v. Dennis, 116 U. S. 665 387 Vidal, In re, 179 U. S. 126 102 Virginia v. Reeves, 100 U. S. 313 171 Volunteer, The, 1 Brown’s Ad. 159; S. C., 15 Int. Rev. Rec. 59 30 Wabash Ry. v. McDaniels, 107 U. S. 454 67 Walla Walla v. Water Co., 172 U. S. 1 158 Walling v. Michigan, 116 U. S. 446 450 Walsh v. Central N. Y. &c. Co., 68 N. E. Rep. 146 261 Waters-Pierce Oil Co. v. Texas, 177 U. S. 28 307, 375 Welch v. Cook, 97 U. S. 541 385, 386 Wellington v. Boston &c. Rail- road, 164 Mass. 380 356 Welton v. Missouri, 91 U. S. 275 450 Western Union T. Co. v. Ann Arbor, R. R. 178 U. S. 239 191, 530 Western Union T. Co. v. Taggart, 163 U. S. 1 388 Weston b. Tierney, 184 U. S. 695 560 xxiv TABLE OF CASES CITED. PAGE Weston v. Troy, 139 N. Y. 281 261 Wetmore v. Rymer, 169 U. S. 115 195 White ®. Ohio, 12 Ohio Nisi Prius Dec. 659 415 White v. United States, 37 C. Cl. 365 548 Whitener, In re, 105 Fed. Rep. 180 118 Whitney v. Thacher, 117 Mass. 523 350 Whitton, The, L. R. 1895, P. 301; 8. a, L. R. 1896, P. 42; 8. C., L. R. 1897, A. C. 337 30 Wilder v. Cowles, 100 Mass. 487 93 Wilmington, The, 48 Fed. Rep. 566 . 30 Willard v. Wood, 135 U. S. 309; 8. C.,164U. S. 502 115 Willett v. Rich, 142 Mass. 356 93 PAGE Williams v. Eggleston, 170 U. S. 304 221 Williams». Fears, 179 U. S. 270 220 Willis v. Eastern &c. Co., 167 U. S. 76 559 Wilson v. Lawrence, 82 N. Y. 409 54 Winchester &c. Co. v. Croxton, 98 Ky. 739 371 Wisconsin v. Pelican Ins. Co., 127 U. S. 265 374 Wiswall v. Campbell, 93 U. S. 347 118 Wood v. Fireman’s Ins. Co., 126 Mass. 316 350 Work v. Leathers, 97 U. S. 379 14 Worlds Columbian Exp. Case, 18 U. S. App. 42 233 Wotherspoon v. Currie, L. R. 5 H. L. 508 435 Young v. Atwood, 5 Hun, 234 350 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. page 1789, Sept. 24, 1 Stat. 73, c. 20, 31, 150, 191 1845, Feb. 26,5 Stat. 726, c. 20 31, 34 1857, Mar. 3, 11 Stat. 195, c. 99 238 1862, July 1, 12 Stat. 489, c. 120 533, 544 1864, July 2, 13 Stat. 356, c. 216 533, 544 1865, Mar. 3,13 Stat. 526, c. 105 238 1867, Mar. 2, 14 Stat. 517, c. 176 117, 118 1872, May 21,17 Stat. 140, c. 187 56' 1872, June8,17Stat.339,c.354 85, 90 1875, Mar. 3, 18 Stat. 470, c. 137 122 1877, Mar. 3, 19 Stat. 405, c. 126 85 1878, June 3, 20 Stat. 88, c. 150 90, 91 1881, Mar. 3, 21 Stat. 502, c. 138 202 1882, July 12,22 Stat. 162, c. 290 123, 124, 125 1883, Mar. 3, 22 Stat. 472, c. 97 550 1887, Feb. 4, 24 Stat. 379, c. 104 487 1887, Mar. 3, 24 Stat. 552, c. 373 123, 413 1887, Mar. 3, 24 Stat. 556, c. 376 „ 239, 245, 246 1888, June 19, 25 Stat. 190, c. 419 106 1888, Aug. 13, 25 Stat. 433, c. 866 1o 80, 123, 124, 125, 413 1889, Mar. 2, 25 Stat. 855, c. 382 487 1890, Jan. 25, 26 Stat. 2, c. 3 56 ® Aug' 18> 26 Stat. 315, c. 797 341 wn?’ Apr- 30> 26 Stat. *77, c. 172 107 1891, Mar. 3, 26 Stat. 826, c. 517 119,122, 232, 234, 236, 377, 378, 413, 494 PAGE 1891, Mar. 3, 26 Stat. 1106, c. 565 267 1892, July 5, 27 Stat. 65, c. 143 107 1893, Feb. 13, 27 Stat. 445, c. 105 6 1894, Aug. 13, 28 Stat. 278, c. 280 416, 422 1896, June 10, 29 Stat. 321, c. 398 100 1897, Mar. 3, 29 Stat. 694, c. 392 268, 270 1898, June 28, 30 Stat. 495, c. 517 100 1898, Julyl,30Stat. 591,0.545100, 531 1898, July 1, 30 Stat. 544, c. 541 117, 118, 531, 532 1899, Mar. 3, 30 Stat. 1004, c. 413 548, 549, 551, 552, 553, 554 1902, July 1, 32 Stat. 641, c. 1362 99, 100, 101 Revised Statutes. § 563....................... 36 § 688...................... 102 § 709.........191, 194, 485, 531 § 716.........;........... 102 § 905...................... 374 § 948..................... 82 § 954....................... 82 § 1556..................... 554 § 1977 .................... 377 § 1979..................... 377 § 3744 ................... 163 § 4311...................... 31 § 4520..................... 31 §§ 4937-4947 ............... 202 § 4963 .................. 267 § 4986..................... 117 § 5198..................... 456 § 5219..................... 273 (B.) Statutes of the States and Territories. Arkansas. Sandels & Hill’s Digest of Statutes, c. 47 § 1337.... 120 § 1346.... 121 Mttomia. § 1347.... 121 Code Civ. Proc. §§ 204-211. 61 §§ 241, 242 . 61 California (cont). Laws, 1893, Mar. 3,297, c. 213 61, 62 1893, Mar. 3, Stats. Cal. 297 ...............................62, 63 Illinois. Hurd’s Rev. Stat. c. 73..... 304 XXV xxvi TABLE OF STATUTES CITED. PAGE PAGE Indiana. Missouri. Laws, 1899, Mar. 4, 422, c. Rev. Stat. § 9344....... 170 190 .................... 138 § 9356........ 170 Iowa. Laws, 1891, Apr. 2, p. 60.. 151 Code, 1873, § 1308 ....... 490 1901, Mar. 9, 232.... 170 Kansas. New Mexico. General Statutes (1901). Laws, 1889, Feb. 7,45, c. 26 89 § 3827.................. 207 New York. § 3828 ................. 207 Code of Civil Procedure, § 3829................. 207 § 1780 373 Laws 1891, Mar. 10, 192, c. 114 Title IV. c. 23............... 42 Kentucky. § 3419............... 38 Acts of General Assembly, § 3420............... 42 1866, Feb. 16, 528, c. 624. § 3422............... 43 359, 371 § 3423 43 1878, Mar. 18, Vol. 1, 554, § 3424............... 43 c. 483...............70, 75 § 3425................... 43 1882, Feb. 27. Vol. 1, 558, 1897, May 13, Laws of New c. 306............70,71,75 York, Vol. 1, p. 514, c. 1882, Apr. 11, 385, c. 948 418...................24, 38, 41 359, 371 North Carolina. 1885-1886, May 17, 140, Laws, 1887, Mar. 7, 630, c. c. 590........500,503,504 355..................... 136 508, 509, 510, 513, 520, 1901, Mar. 15,116, c. 9..442 521 522, 523 Ohio. 1892, Nov. 11, c. 503, Bates Statutes (1897), Vol. 504, 509 1, 262, Title III, c. 18.... 414 1893, June 14, 1065, c.222 Vol. 2, 2229, Title V,c. A.. 414 359, 366, 371 Acts, 1884 Mar. 20, 67. .406, 414 Louisiana. Acts, 1890 Apr. 22, 248..406, 414 Acts of General Assembly Tennessee. 1898, July 14, 346, No. 170 399 Shannon’s Code, § 3046..... 183 Rev. Civil Code Laws, 1877, Mar. 16, 26, c. Art. 656 ( 652)........ 496 16 178 Art. 709 ( 705)........ 495 1887, Mar. 26, 5, c. 1.... Art. 718 (714).......... 495 177, 178,179 Art. 728 (724)........ 495 1889, Apr. 8, 247, c. 130. 180,183 Art. 743 ( 739)....... 495 Utah. Code of Practice Revised Statutes, Art. 298 ............... 496 §§ 2856-2872.... 533,537,543 Michigan. Virginia. Public Acts Acts of Assembly, 1873, May 1, 496, No. 198 387 1890, Mar. 6, 205, c. 244, 1893, May 27, 217, No. 129 273, 278 384v.385, 387 1896, Mar. 3, 726, c. 669.. 1897, June 4, 292, No. 228 274, 275, 278 384, 385, 387 Code, § 3208................ 275 (C.) Foreign Statutes. Great Britain. I Great Britain, (coni.) 1854,17 & 18 Viet. c. 104... 31 1861, 24 Viet. c. 10...28, 31 CASES ADJUDGED IM THE I SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1903. THE SOUTHWARK. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 12. Argued March 3,1903.—Decided October 19,1903. Before the passage of the Harter Act, 21 Stat. 445, there was, in the absence of special contract, an absolute warranty, on the part of the shipowner, which did not depend upon his knowwlge or diligence, that the vessel was seaworthy at the beginning^Hthe voyage.KX-*'* Seaworthiness of a vessel engaged mril^ aressed -Ja^at trade relates and extends to the refrigerating neco^ary^for the preservation of the meat during transportat^S" The Harter Act expressly prohibits ^H^inSertionjn bills of lading of any covenant or agreement lessenig£N Weakenimrij^-avoiding the obligation of the owner to use du^^^ence toziraKh the vessel seaworthy and capable of performin^^ter intended*voyage. The “dressed beef clause ” inserted in bills of lading of a vessel engaged in that trade releasing the vessel from damages even though caused by defects in the refrigerating apparatus, whether existing at or prior to the commencement of the voyage is in violation of this provision of the Harter Act and will not relieve the vessel from such liability in the absence of pioof that the owner has used due diligence at the commencement of e voyage to make the vessel including the refrigerating apparatus reasonably fit for the purposes and uses for which it is intended and thus seaworthy. he burden of proof as to the seaworthiness of the vessel at the time of sailing is on the owner. The sudden breakdown of the refrigerating VOL. oxci—1 1 2 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. apparatus within three hours of sailing raises a presumption of unseaworthiness at the time of sailing, independently of the Harter Act. This case originated in a libel in rem filed in the District Court of the United States for the Eastern District of Pennsylvania, to recover for the loss of a quantity of dressed beef, shipped by the libellants on the steamer Southwark, a vessel belonging to the respondent, the International Navigation Company. The meat was required to be kept chilled during the passage, and the ship was engaged in the business of carrying such freight and was fitted with a refrigerating apparatus for the purpose. The meat was received under a bill of lading acknowledging the receipt thereof in apparent good order and condition, and undertaking to deliver the same at Liverpool in like good order and condition. Across the bill of lading there was this printed stipulation: “It is expressly provided that the goods shipped hereunder are absolutely at the risk of the owners in every respect, and that the carrier is responsible for no loss, delay or damage thereto, however arising, including stowage, and all risks of breakdown or injury, however caused, whether to its refrigerator or its machinery, even though arising from defect existing at or previous to the commencement of the voyage; also that in case of the meat becoming, from any cause, in the opinion of the master of the vessel, putrid, dangerous or offensive to the passengers or the crew, it may be thrown overboard or otherwise disposed of without liability to the carrier for the consequent loss.” Upon the arrival of the ship at Liverpool the meat was found to be in bad condition, mouldy and slimy, resulting in a considerable loss to the shipper. The libel -seeks a recovery because the refrigerating apparatus was opt of repair at the time of sailing and was not repaired during the voyage, so that the temperature of the compartment in which the meat was carried could not be reduced to the proper degree for its safe transportation. The answer avers that the Southwark left Philadelphia with THE SOUTHWARK. 3 191 U. S. Argument for Petitioners. the refrigerating apparatus in perfect order after due inspection, and all necessary repairs were duly and promptly made while on the voyage. Upon hearing in the District Court, a decree was entered exonerating the vessel from fault, which decree was affirmed in the Circuit Court of Appeals. 104 Fed Rep. 103; 48 C. C. A. 123. J/r. John F. Lewis, with whom J/?. U. L. Cheney was on the brief, for the petitioners: I. Respondent was guilty of negligence in receiving a cargo of fresh meat and starting upon a transatlantic voyage in midsummer, with the refrigerating machinery in so manifestly unfit a condition, that working for a sufficient time and under such conditions that an efficient machine would have reduced the temperature of the brine to at least 20°, it was only able to reduce the brine temperature to 40°, a figure so high, that it was impossible to obtain even an approximation towards the proper degree in the compartment absolutely necessary for the safe carriage of the meat. II. The “ dressed meat clause ” of the bill of lading did not wipe out all warranty of the initial fitness of the ship to receive the cargo, and of the refrigerating machinery to preserve it. The Maori King, 8 Asp. Mar. C. 65 L. R. 1895 ; 2 Q. B. D. 550, approved in The Prussia, 93 Fed. Rep. 837. See also The Silvia, 171 IT. S. 462 ; Caledonia, 157 U. S. 124; The Carib Prince, 170 U. S. 659; Steele v. State Line, L. R. 3 App. Cas. 72. III. The Harter Act applies to bills of lading issued for fresh meat. The law has been understood to be that there is a warranty of the initial fitness of the vessel in all respects to carry the cargo received. Queensland Nat. JBk. v. P. O. ^>tm. Nav. Co., L. R. 1898, 1 Q. B. 567; Tatter sail v. Nat. 8. & Co., L. R. 12 C. B. Div. 297. The test of seaworthiness is whether the vessel is reasonably nt to carry the cargo which she has undertaken to transport. This is the commonly accepted definition of seaworthiness. The G. R, Booth, 171 U. S. 450 ; The Kensington, 183 IT. S. 4 OCTOBER TERM, 1903. Argument for Appellee. 191 U. S. 263 ; Knott v. Botany Mills, 179 U. S. 71 ; Rowson n. Atlantic Tr. Co., L. R. 1903, K. B. Div. 114. IV. The burden of proof rests on the respondents. Inter. Nav. Co. v. Farr & Bailey, etc., 181 U. S. 218 ; The Prussia, 93 Fed. Rep. 837 ; The Manitou, 116 Fed. Rep. 61 ; The C. JF. Elphicke, 117 Fed. Rep. 279. V. The simple inspection was not due diligence. The Edwin I. Morrison, 153 U. S. 215 ; The Aygi, 93 Fed. Rep. 484 ; The Phoenicia, 90 Fed Rep. 116 ; Switzerland Ins. Co. v. Flamborough, 69 Fed. Rep. 470. Where a vessel soon after leaving port becomes leaky without stress of weather or adequate cause of injury, the presumption is that she was unseaworthy before sailing. Ceballos v. Warren Adams, 74 Fed. Rep. 413 ; S. C, certiorari deniedj 163 U. S. 679 ; Higgie v. American Lloyds, 14 Fed. Rep. 143,147; The Gulnare, 42 Fed. Rep. 861 ; Work v. Leathers, 97 U. S. 379; The Planter, 2 Woods, 490, Fed. Cas. No. 11,207a; Cort v. Insurance Co., 2 Wash. C. C. 375, Fed. Cas. No. 3257 ; Walhs n. Insurance Co., 32 N.Y. 427, 436 ; Pacific Coast S. S. Company n. Bancroft- Whitney Company, 4 Fed. Rep. 196. Mr. N. Dubois Miller, with whom Mr. Howard H. Yocum, Mr. J. Rodman Paul and Messrs. Biddle & Ward were on the brief, for appellee : The concurrent findings of the lower courts that the vessel was fitted with proper refrigerating machinery, duly inspected (i. e., there had been due diligence) ; that the rotting of the meat was due to the breakdowns of the refrigerating machinery after sailing and not to any condition of temperature or of the machinery at the time of sailing ; and that there was no sufficient evidence of negligence on the part of the vessel, will not, under the settled rule of this court, be disturbed. Morewood v. Enequist, 23 How. 495 ; The Marcellus, 1 Black, 417 ; The Hypodame, 6 Wall. 223; The Richmond, 104 U. S. 543 ; Alexander v. Machan, 147 U. S. 72 ; Handy v. United States, 143 U. S. 513 ; Packer v. Lighterage Co., 140 U. S. 360 ; Rae v. The Eclipse, 135 U. S. 599 ; The Gazelle, 128 U. S. 474 ; The THE SOUTHWARK. 5 191 U. S. Argument for Appellee. Maggie J. Smith v. Walker, 123 U. S. 349; Act of April 16,1875, c. 77; The Carib Prince, 170 U. S. 658. The dressed meat clause protected the owner of the vessel, and the exemptions for liability as to the refrigerating apparatus are valid under the Harter Act. The Prussia, 93 Fed. Rep. 837; Savage v. Burnham, 17 N. Y. 561. This is especially so as to damages from putrefaction. Hutchinson on Carriers, § 768a; Carver on Carriers, § 12; Cargo ex Laertes, L. R. 12 Pro. Div. 187; The Carib Prince, 170 U. S. 660; The Caledonia, 157 U. S. 134. The burden of proof is on the shipper. Cla/rk v. Barnwell, 12 How. 272; Carver on Carriers, § 78; Hutchinson on Carriers, § 767; Transportation Co. v. Downer, 11 Wall. 129; The Victory and the Plymoathia/n, 168 U. S. 410; City of Hertford and the Unit, 97 U. S. 323; The Ludwig Hoeberg, 157 U. S. 60 ; The Powhatan, 12 Fed. Rep. 876 ; The Timor, 67 Fed. Rep. 356 ; The Hindoostan, 67 Fed. Rep. 794; The Lennox, 90 Fed. Rep. 308; Oil Co. n. Torpedo Co., 190 Pennsylvania, 350. The Harter Act has been strictly construed by this court. It has been held that the settled principles of law and evidence are not changed or restricted by the operation of the act further than its express terms require. The Irra/waddy, 171 U. S. 187; The Ca/rib Prince, supra; Carver on Carriers by Sea, 3d ed. § 103e. The preservation of meat during a voyage, by the creation of an artificial atmosphere, is an undertaking apart from the duty of a common carrier by sea, and the shipowner’s duty therein is that of a cold storage warehouseman. Wheeler on Modern Law Carriers, 98; Hutchinson on Carriers, § 768a; Carver on Carriers, 12; Wharton on Negligence, § 563; My rick v. Michigan Central, 107 U. S. 102; Michigan Southern &c. v. McDonough, 21 Michigan, 165 ; Cragin n. New York Cent. R. R. Co., 51 N. Y. 61; & P. Carr n. La/ncashire & Yorkshire R- Co.. 7 Exch. 708; York County v. Central R. R., 3 Wall. 107, 112; N. J. Steam Nav. Co. v. Merchants"' Bank, 6 How. 344, 382. A cold storage warehouseman, i. e., a bailee for hire, may 6 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. by contract stipulate for exemption from liability, as in this case from a breakdown of his plant; at least where no negligence is shown. And he may thereby place upon the bailor the burden of proving negligence. Tausig n. Bode Haslett, 54 L. R. A. 774 (Cal.); Holt Co. n. Jordan Company, 25 Ind. App. 314; Farnham v. Camden & Amboy R. Co., 55 Pa. St. 53; Gray v. Bates, 99 Massachusetts, 263 ; Marsh v. Horne, 5 B. & C. 462; Cochran v. Dinsmore, 49 N. Y. 249 ; Story on Bailments, sec. 278. Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court. Before the passage of the act of Congress of February 13, 1893, 27 Stat. 445, c. 105; 3 Comp. Stat. U. S. 2946, known as the Harter Act, it was the settled law of this court that, in the absence of special contract, there was a warranty upon the part of the ship owner that the ship was seaworthy at the beginning of her voyage. The warranty was absolute and did not depend upon the knowledge of the owner or the diligence of his efforts to provide a seaworthy vessel. The Caledonia, 157 U. S. 124; The Edwin I. Morrison, 153 U. S. 199; The Irrawaddy, 171 U. S. 187. After its passage, this act became the rule of law for cases coming within its terms. In section two it is expressly provided that it shall be unlawful for any vessel transporting property or merchandise from or between ports of the United States and foreign ports to insert in any bills of lading or shipping documents any covenant or agreement whereby the obligation of the owner to use due diligence to properly equip, man, provision and outfit said vessel, and to make the vessel seaworthy and capable of performing her intended voyage, shall in anywise be lessened, weakened or avoided. In this connection, Mr. Justice Brown, in speaking of the nature and origin of this law, in the case of The Delaware, 161 U. S. 459, used this language, p. 471: “The act was an outgrowth of THE SOUTHWARK. 7 191 U. S. Opinion of the Court. attempts made in recent years, to limit, as far as possible, the liability of the vessel and her owners, by inserting in bills of lading stipulations against losses arising from unseaworthiness, bad stowage and negligence in navigation, and other forms of liability which have been held by the courts of England, if not of this country, to be valid as contracts and to be respected even when they exempted the ship from the consequences of her own negligence. As decisions were made by the courts from time to time, holding the vessel for nonexcepted liabilities, new clauses were inserted in the bills of lading to meet these decisions until the common law responsibility of carriers by sea had been frittered away to such an extent that several of the leading commercial associations, both in this country and in England, had taken the subject in hand and suggested amendments to the maritime law in line with those embodied in the Harter Act.” This language no doubt had reference to the prohibitive provisions of section two of the act. Section three must be read with section two to effectuate the purpose of the act, and shows an intention upon the part of Congress to relax in certain respects the harshness of the previous rules of obligation upon ship owners, provided the owner shall exercise due diligence to make the vessel seaworthy in all respects, in which event neither the vessel nor the owner shall be liable, among other things, for faults of management or for loss from inherent defect, quality or vice of the thing carried. Of this feature of the law it was said by Mr. Justice Shiras, delivering the opinion of the court in the case of The Irrawaddy, 171 U. S. 187, at pp. 192-193: Plainly the main purposes of the act were to relieve the ship owner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or management of the vessel. . . . Although the foundation of the rule that 8 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. forbade ship owners to contract for exemption from liability for negligence in their agents or employés, was in the decisions of the courts that such contracts were against public policy, it was, nevertheless, competent for Congress to make a change in the standard of duty, and it is plainly the duty of courts to conform in their decisions to the policy so declared.” The effect of this law is not to relieve the owner from the general duty of furnishing a seaworthy ship, but to limit his liability in certain particulars and upon the condition named in the statute. The Carib Prince, 170 U. S. 655. Before the passage of the act, the initial obligation could be limited in certain particulars by special contract not involving negligence of the owner. Since the passage of the act, as to cases coming within its terms, before the owner can have the benefit of the relief provided by section three he must have exercised due diligence to provide a seaworthy vessel capable of performing her intended voyage. Obviously, a cargo of dressed beef to be shipped a long distance is one which, from the inherent quality of the thing carried, is liable to loss, unless properly stowed in rooms artificially chilled for the purpose of preserving it. We proceed to inquire whether the furnishing of a refrigerating apparatus in good order and repair, competent for the purpose required, was within the obligation imposed by the Harter Act as a condition precedent to the enjoyment of the benefits of the act in limiting the owner’s liability as provided therein. Bouvier’s Law Dictionary defines “seaworthiness” to be: “In maritime law, the sufficiency of the vessel in materials, construction, equipment, officers, men and outfit for the trade or service in which it is employed.” And the same author further says: “It can never be settled by positive rules of law how far this obligation of seaworthiness extends in any particular case, for the reason that improvements and changes in the means and modes of navigation frequently require new implements, or new forms of old ones; and these, though not THE SOUTHWARK. 9 191 U. S. Opinion of the Court. necessary at first, become so when there is an established usage that all ships of a certain quality, or those to be sent on certain voyages or used for certain purposes, shall have them.” In the case of The Sylvia, 171 U. S. 462, Mr. Justice Gray said; “The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport.” This is the commonly accepted definition of seaworthiness. As seaworthiness depends not only upon the vessel being staunch and fit to meet the perils of the sea, but upon its character in reference to the particular cargo to be transported, it follows that a vessel must be able to transport the cargo which it is held out as fit to carry or it is not seaworthy in that respect. But for the special appliances furnished by the vessel, perishable cargoes, such as dressed beef, could not be shipped on long voyages in hot weather. The trade of shipping dressed beef abroad has grown constantly in volume, until it has become a most important part of our foreign commerce. For the purpose of properly discharging the duties involved in such transportation, vessels provided with refrigerating apparatus have been put into service and compete with others for this branch of the carrying trade. The owners of such vessels hold them out to shippers and invite their trade upon the representation, actual or implied, that the apparatus provided is fit to receive and carry the meat in proper condition to its destination. For this service freight charges are doubtless made commensurate with the advantage furnished. The shipper has no control over the apparatus. It is under the supervision and care of the vessel owner, inspected and operated by those in his employ. This view is sustained by the English as well as by the American authorities. Maclachlan on the Law of Merchant Shipping, 4th ed. 430, quotes from Stanton v. Richard-son> L. R. 7 0. p. 421, Brett, J.: “It seems to me that the obligation of the ship owner is to supply a ship that is seaworthy in relation to the cargo which he has undertaken to carry. I ¿0 no| think, however, that this proposition com 10 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. pletely expresses his liability, though the proposition I am about to state with regard to such liability in many cases may amount to the same thing only in effect. I think the obligation of the ship owner is to supply a ship reasonably fit to carry the cargo stipulated in the charter party.” In Lyon v. Mells, 5 East, 428, Lord Ellenborough said: “In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board or employing his vessel or lighter for that purpose, it is a term of the contract upon the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public; it is the very foundation and immediate substratum of the contract that it is so; the law presumes a promise to that effect on the part of the carrier without any actual proof; and every reason of sound policy and public convenience requires that it should be so.” In Rowson v. Atlantic Transport Company, L. R. 1903, 1 K. B. 114, butter was shipped on defendant’s ship, New York to London. The bill of lading provided that it should be subject to all the terms and provisions of and all the exemptions from liability contained in the Harter Act. The butter, which was sound when shipped in New York, was delivered in London in a damaged condition. It was carried in certain insulated chambers, connected with the refrigerating apparatus with which the ship was supplied for the purpose of enabling her to carry perishable goods during the summer months. At the time of the shipment these chambers were cooled down to a proper temperature for the reception of the butter, and the refrigerating machinery was in good working order. The damage to the butter was caused by the negligence of the crew in the management of the refrigerating apparatus during the voyage, whereby the chambers were not kept at a sufficiently low temperature. It was contended by defendants that the negligence in the management of the refrigerat- THE SOUTHWARK. 11 191 U. S. Opinion of the Court. ing apparatus was not a fault or error of management within the Harter Act. Kennedy, J., says: “That act gives protection only upon condition of the ship being seaworthy. Now a vessel, which has to carry a cargo which can only be safely carried if its refrigerating machinery is in proper order, is one, which at the present day, according to a series of decisions both in this country and America, cannot properly be regarded as seaworthy unless it has that machinery in proper order. The term seaworthiness is one which was originally, no doubt, used in days when refrigerating apparatus and other modern appliances for the safe carriage of cargo were unknown. In a sense it is obviously not a happy term to use except with regard to that condition of the vessel which enables the owner to avoid exposure of the cargo to the perils of the sea. But the more extended use of the term has come to be well recognized. In the American case of The Thames, 61 Fed. Rep. 1014, in the course of the judgment of the court, it is said: ‘A ship may be seaworthy as to one sort of cargo and unseaworthy as to another.’ When a customary and well-known article of commerce is received on board ship and carried on a voyage, the master guarantees the seaworthiness of his ship for taking charge of that article. As to her cargo, seaworthiness is that quality of a ship which fits it for carrying safely the merchandise which it takes on board. A ship is impliedly warranted to be seaworthy quoad that article, and if damage occurs in consequence of the unfitness of the ship for carrying that article, the ship is liable, and cannot exonerate itself by proving the non sequitur that it is capable of carrying safely and without damage some other article of a different character.” In The Maori King, Law Reports, 1895, 2 Q. B. 550, it was held that a vessel offering to carry frozen meat impliedly warranted that the refrigerating machinery was at the time of shipment fit to carry such cargo in safety. The case of The Thames, from which Judge Kennedy quotes, is reported in 10 C. C. A. 232; >8. C., 61 Fed. Rep. 1014, and 12 191 U. S. OCTOBER TERM, 1903. Opinion of the Court. was decided by the Circuit Court of Appeals for the Fourth Circuit. In that case it was held that the vessel in question was not seaworthy in respect to a cargo of flour which it had undertaken to transport. The further question arises in case of loss, upon whom rests the burden of proof as to the discharge of this initial duty by the ship owner? This question was before the court in the case of The International Navigation Company v. Farr & Bailey Manufacturing Company, 181 U. S. 218, in which the provisions of the Harter Act were under consideration. In the course of the opinion Mr. Chief Justice Fuller said: “We repeat, that even if the loss occurred through the fault or error in management, the exemption cannot be availed of unless the vessel was seaworthy when she sailed or due diligence to make her so had been exercised, and it is for the owner to establish the existence of one or the other of these conditions.” In the District Court, whose judgment was affirmed by the Circuit Court of Appeals, it was held that the burden of proof, in view of the stipulation of the bill of lading in this case, was not upon the carrier but upon the shipper, and that there could only be a recovery in the event that the shipper had shown by satisfactory evidence, negligence upon the part of the carrier. This case was decided before the opinion was delivered in the case of The International Navigation Company v. Farr & Bailey Manufacturing Company, supra, and upon this point is in direct opposition thereto, and fails to give proper weight to the provisions of the act making it incumbent upon the carrier to use due diligence to provide a seaworthy vessel. It is urged that the findings in both the District Court and the Circuit Court of Appeals, that the loss did not arise from want of proper refrigerating apparatus, but was due to a breakdown in the machinery after the voyage was begun, are findings of fact in the courts below which should be held conclusive here. There are observations in the opinions of the learned judges consistent with the view that it was found that THE SOUTHWARK. 13 191 U. S. Opinion of the Court. the loss was due to a breakdown in the machinery after the voyage had begun, and ordinarily such findings as to matters of fact are followed in this court; but the case below was tried upon a theory which ignored the initial duty of the carrier to use due diligence to provide a seaworthy vessel, properly equipped for the purpose intended. The bill of lading was treated as a special contract throwing upon the shipper, if he would recover, the burden of establishing negligence upon the part of the carrier. As we have before stated, the right of the carrier to be exonerated in the respects named in the Harter Act depends upon the exercise of due diligence upon his part in discharging the primary duty of providing a seaworthy vessel. The burden of proof being upon the carrier to show that he has exercised due diligence to provide a seaworthy vessel at the time he received the meat and started upon the voyage, the question arises, was this duty discharged? This due diligence required, said the Chief Justice in delivering the opinion in The International Navigation Company v. Farr & Bailey Manufacturing Company, supra, “ diligence to make the ship in all respects seaworthy, and that, in our judgment, means due diligence upon the part of all the owner’s servants in the use of the equipment before the commencement of the voyage and until it has actually commenced.” An examination of the record convinces us that the respondent did not show by the weight of the testimony that this initial duty had been discharged. The testimony discloses an inspection upon the part of the carrier shortly before the sailing of the vessel, in which by superficial observation no defect in the refrigerating apparatus was discovered, but the testimony also shows that but a short time after the sailing of the ship, within one to three hours, the apparatus broke down, and was repaired, and then broke down again, and during the voyage to Liverpool did not reduce the temperature of the storage room sufficiently to preserve the meat, which was found to be in a very bad condition upon the opening of the refrigerat-mg box at Liverpool. This sudden breakdown when the 14 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. vessel was scarcely out of port would raise the presumption of unseaworthiness at the time of the sailing, making it incumbent upon the vessel owner to prove seaworthiness, and this independently of the provisions of the Harter Act. Work v. Leathers, W! U. S. 379. The practice existed upon the part of vessel owners of taking the temperature of the brine, which was the carrying medium for cooling the storage room, and also of the room itself, and keeping a record thereof. This record, so far as kept, is produced at the instance of the libellant, and it does not disclose that at any time the temperature was sufficiently low to preserve the meat. The machinery for reducing the temperature had been in operation forty-eight hours or more in advance of receiving the meat. The record of the temperature does not seem to have been kept after the machinery for reducing temperature was put into operation up to the time of the sailing of the ship, and that part of the log in evidence tends strongly to show that both before and after the inspection was made the temperature of the commercial box in which the meat was stored was never properly reduced. The refrigerating apparatus in use upon the Southwark was of the compression type, which uses ammonia gas as a refrigerating agent and brine as the circulating medium. The apparatus provides for the compression of the ammonia gas, in which form it is carried to a high degree of heat. It is then carried into pipes and condensed by means of cooling water passed over the pipes, • reducing the gas to a liquid form. The liquid is then carried through a series of coils or pipes, where, being suddenly relieved of pressure, it expands into a gaseous form, absorbing heat from the surrounding objects, and cooling the pipes or coils and brine with which the pipes are brought into contact. This brine being circulated in the pipes, about the commercial room, provided for the reception of the meat, reduces the compartment to a proper degree of temperature for the reception and preservation of the cargo. Whether the room is fit-to receive the meat may be tested by the simple process of THE SOUTHWARK. 15 191 U. S. Opinion of the Court. placing a thermometer therein, taking its temperature. Before the meat is taken on board this temperature should be brought down to from twenty-five to thirty degrees, and should be maintained at a low degree in order to preserve the meat. In the present case, while the inspector did not take the temperature of this room, the depositions of the engineer and the assistant, or refrigerating engineer, were taken aboard, and it appears that the temperature of the room was taken frequently during the seventy-two hours in which these witnesses say the apparatus was being worked before the meat was received. There is no sufficient reason given why a record of these temperatures was not made. The refrigerating engineer says that it was not customary, that there were no orders to that effect, and there was no room in the log for such a record, although it appears a record was kept after the vessel sailed, and from that time throughout the voyage, of the averages of the temperature of the room. In a vague way these men say the room was cooling down all right. It would have been a very easy matter to have established this fact by keeping a record of such observations which would have shown conclusively the temperature of the commercial room. A careful perusal of the testimony tends strongly to the inference that the commercial room was not of a proper temperature, and that the machinery broke down almost before leaving port m an attempt to reduce it to a proper degree. There is some testimony tending to show that the water in the port at Philadelphia, used to cool the pipes, at the time was so warm as to render it difficult to bring down the temperature of the room, but the weight of the testimony is that these refrigerating machines are intended to work and to do work in warmer latitudes and in a higher degree of temperature than was shown to have existed at the time in question. But whether fault can be affirmatively established in this respect it is not necessary to determine. The burden was upon the owner to show by making proper and reasonable tests that the vessel was seaworthy and in a fit condition to receive and 16 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. transport the cargo undertaken to be carried, and if by the failure to adopt such tests and to furnish such proofs th question of the ship’s efficiency is left in doubt, that doub must be resolved against the ship owner and in favor of the shipper. In other words, the vessel owner has not sustained the burden cast upon him to establish the fact that he has used due diligence to furnish a seaworthy vessel, and, between him and the shipper, must bear the loss. The Edwin I. Morrison, 153 U. S. 199, 215; The Phoenicia, 90 Fed. Rep. 116. It is true the inspector said that he discovered no leak of ammonia gas such as was afterward discovered, but he seems to have relied upon external appearances and the lack of evidences of the leaking of the gas rather than upon proper tests of the apparatus and its actual workings. We perceive no reason why such tests should not have been made. We think it was the duty of the carrier to cause them to be applied and determine the working condition of the apparatus before receiving the cargo, which in hot weather and upon a long voyage would surely spoil unless a proper condition of refrigeration was established. The Harter Act, as we understand it, relieves carriers from some of the harsher rules of obligation in force before its passage, but this relief is conditioned upon the discharge of the carrier’s duty to use due diligence to provide that which it holds out to the shipper it is competent to furnish, a seaworthy vessel, duly equipped and provided for the purposes of the voyage. This rule, in our judgment, should not be relaxed by judicial interpretation or construction, and in this case we think the burden imposed by the law upon the carrier of making due proof of the discharge of its duty in this respect was not sustained, and there was error in the courts below in holding otherwise. It is argued that appellees are not claiming the benefit of the Harter Act, but rely upon the contract in the bill of lading to exempt them from liability in the absence of affirmative proof of negligence. To permit the stipulations of this bill of lading to cut down THE ROBERT W. PARSONS. 17 191 U. 8. Syllabus. the statutory requirements of section two of the Harter Act would be to allow the parties to enforce a contract in violation of the positive terms of the statute. As was said by Mr. Justice White, of somewhat similar provisions in the contract before the court in The Kensington, 183 U. S. 263, 269 : “It is apparent that they are void, since they unequivocally sought to relieve the carrier from the initial duty of furnishing a seaworthy vessel for all neglect in loading or stowing, and indeed for any and every fault of commission or omission on the part of the carrier or his servants.” We think, for the reasons stated, there was error in rendering a decree dismissing the libel, and The decree of the District Court, as well as the judgment of affirmance of the Court of Appeals, will be reversed, and the cause remanded to the District Court with instructions to enter a decree in favor of the libellants. THE ROBERT W. PARSONS. error to the supreme court of the STATE OF NEW YORK. No. 16. Argued March 11,12.—Decided October 26,1903. 1. Although the Erie Canal is wholly within the state of New York, it connects navigable waters and is a great highway of commerce between ports in different states and foreign countries, and is, therefore, a navigable water of the United States within the legitimate scope of the admiralty jurisdiction of the courts of the United States. 2. The enforcement of a lien in rem for repairs made in a port of the State to which it belongs to a canal boat engaged in traffic on the Erie Canal and the Hudson River is wholly within the jurisdiction of the admiralty courts and such lien cannot be enforced by any proceeding m rem in the courts of the State of New York. 3. The contract for making such repairs is a maritime contract and its nature as such is not affected by the fact that the repairs were made in a dry dock or by the fact 4. That the canal boat was engaged in traffic wholly within the State of New York. The Belfast, 7 Wall. 624. VOL. OXCI—2 18 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 U. S. This was a writ of error to review a judgment of the Supreme Court of the State of New York sustaining the jurisdiction of that court to enforce a lien for repairs made by Haines to the canal boat Robert W. Parsons, which was engaged at the time in navigating the Erie Canal and Hudson River. Defense, that the statute of the State of New York, giving a lien for such repairs and providing a remedy for enforcing the same in rem, is unconstitutional, so far as concerns the remedy, and an infringement upon the exclusive jurisdiction of the courts of the United States in admiralty and maritime causes.. A motion to vacate the attachment, issued upon the petition of Haines, upon the ground that the court had no jurisdiction, was denied, an appeal taken to the Appellate Division of the Supreme Court, where the case was argued, and the order of the court below affirmed by a majority of the justices. Matter of Haines, 52 N. Y. App. Div. 550. From the final order of the court, subsequently entered, the owner, Clara Perry, again appealed to the Appellate Division, where the order was affirmed. In re Haines, 57 N. Y. App. Div. 636, and again by the Court of Appeals. In re Haines, 168 N. Y. 586. Whereupon a writ of error was sued out from this court. Mr. Martin Clark for plaintiff in error: I. The original statute of New York for liens on vessels, chap. 482, Laws of 1862, was, so far as it provided for enforcement of maritime claims in rem, held unconstitutional. In re Josephine, 39 N. Y. 19; Brookman v. Hamill, 43 N. Y. 554; The Hine v. Trevor, 4 Wall. 555 ; Voes v. Cockcroft, 44N.Y. 415 ; Poole v. Kermit, 37 N. Y. Super. Ct. 114; The Belfast,7 Wall. 624. Chap. 418, Laws of 1897, chap. XLIX of the General Laws, Art. II, now provides for liens on vessels. The enforcement depends upon whether the contract is maritime or not; if maritime the proceedings are in the United States courts, in other cases in the state courts. This was necessary, as the statute provides for a lien where THE ROBERT VV. PARSONS. 19 191 U. S. Argument for Plaintiff in Error. labor or materials are furnished under a contract for building a boat, which the courts uniformly hold is not a maritime contract, and in such a case it must be enforced in the courts of the State, as a court of admiralty would not have jurisdiction of it. Wilson v. Lawrence, 82 N. Y. 409, p. 411 ; The J. E. Rwmbell, 148 U. S. 1, and cases cited ; The Jefferson, 20 How. 393 ; The Capitol, 22 How. 129 ; Edwards v. Elliott, 21 Wall. 532. So that in determining upon the remedy of the forum, it is necessary to determine first whether or not the contract upon which the lien is based is a maritime contract. If it is, then under the statute, as well as under the authorities, “ it can be enforced only by proceedings in the courts of the United States.” II. That a contract for making repairs upon a boat is a maritime contract is settled beyond question. The General Smith, 4 Wheat. 438 ; The St. Lawrence, 1 Black, 522 ; Pey-roux v. Howard, 1 Peters, 324; The Lottowanna, 21 Wall. 558 ; Admiralty Rule 12 of this court ; The Glide, 167 U. S. 606 ; Ex parte Boyer, 109 U. S. 629. HI. The Appellate Division laid undue stress upon the character of the vessel and did not give due weight to the navigability of the water upon which the boat was employed. Vessels that are vehicles of commerce are within the jurisdiction of admiralty regardless of methods of propulsion. The Montello, 20 Wall. 430 ; The Daniel Ball, 10 Wall. 557 ; The General Cass, 1 Brown’s Adm. 334 ; The E. A. Shores, Jr., 73 Fed. Rep. 342. That a contract is to be performed wholly within a State does not exclude it from the admiralty jurisdiction of the courts of the United States. The admiralty jurisdiction, conferred by the Constitution upon these courts, extends to all contracts of a maritime character to be performed upon navigable waters. The Mary Washington, 1 Abb. U. S. 1, Fed. Cases No. 9229 ; The Belfast, 7 Wall. 624 ; The Leonard, 3 Ben. 263, Fed. Cases No. 8256 ; TJ. S. v. Burlington <& Henderson Co. Ferry Co., 21 Fed. Rep. 331, 336. This rule is followed although the boat was built to navigate 20 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191U. S. the canal, and had no means of locomotion in herself. The E. M. McChesney, 8 Ben. 150, Fed. Cases No. 4463; N. C., 15 Blatch. 183, Fed. Cases No. 4464; The Wilmington, 48 Fed. Rep. 566. IV. The Erie Canal and connecting waters are public navigable waters of the United States over which the Admiralty Court has and exercises jurisdiction. The Thomas Carroll, 23 Fed. Rep. 912; The Ella B., 24 Fed. Rep. 508 ; Maloney v. City of Milwaukee, 1 Fed. Rep., 611; also the Albemarle and Chesapeake Canal, The Olie, 2 Hughes, 12 Fed. Cases No. 10485; the Welland Canal in 1873, The Avon, Brown’s Adm. 170, Fed. Cases No. 680; Scott v. The Young American, Newb. 101, Fed. Cases No. 12549. Admiralty assumes jurisdiction not only over canal boats but also over a dredge and scows. The Alabama, 22 Fed. Rep. 449. A raft of timber, Muntz v. Raft of Timber, 15 Fed. Rep. 555. A steamer of less than five tons burden engaged in carrying freight and passengers upon navigable water, The Pioneer, 21 Fed. Rep. 426. A ferry-boat plying between two parts in the same State in a navigable river, U. S. v. B. & H. Ferry Co., 21 Fed. Rep. 331. A dismantled steamboat being fitted for use as a wharfboat, The Old Natchez, 9 Fed. Rep. 476. A barge without sails or rudder, used for lightering, Disbow v. The. Walsh Bros., 36 Fed. Rep. 607. A bath-house built on boats and designed for transportation, The Public Baths No. 13, 61 Fed. Rep. 692. A contract for the repair of scows used in carrying ballast to or from vessels, Endner v. Greco, 3 Fed. Rep. 411; Benedict’s Adm. §§ 213, 221, 221a; U. S. Rev. Stat. §§ 3, 542. The limitations in Ex parte Boyer, 109 U. S. 629, have no bearing in this case. V. Decisions of this court should be followed as to extent of jurisdiction of Federal courts. Constitution, Art. Ill, § 2; U. S. Rev. Stat. § 863, subd. 8; York v. Conde, 147 U. S. 491- The establishment of admiralty jurisdiction of the United States courts, as now recognized in its full breadth and meaning, was reached by slow degrees, after repeated argument at the bar, and earnest discussion between the members of the THE ROBERT W. PARSONS. 21 191 U. S. Argument for Defendant in Error. court in consultation. The Thomas Jefferson, 10 Wheat. 428 ; Waring v. Clarice, 5 How. 441; The Genesee Chief, 12 How. 443; Allen v. Newbury, 21 How. 244; McGuire v. Card, 21 How. 248 ; The Moses Taylor, 4 Wall. 441; The Hine v. Trevor, 4 Wall. 555 ; The Eagle, 8 Wall. 15; The Daniel Dall, 10 Wall. 557 ; Ins. Co. v. Dunham, 11 Wall. 1; The Lottawanna, 21 Wall. 558 ; Maloney v. City of Milwaukee, 1 Fed. Rep. 611; Ex parte Boyer, 109 U. S. 629 ; Rule 12, Admiralty, U. S. Sup. Ct. adopted 1844, changed December, 1858, May, 1872; Allen v. Newbury, 21 How. 244, and McGuire v. Card, 21 How. 248, overruled by The Belfast, 7 Wall. 624; The Ann Arbor, Fed. Cas. 407 and 408, distinguished. New York cases in Appellate Division opinion and cited by defendant in error are inapplicable. Local decisions cannot abrogate maritime law. Workman v. The Mayor, 179 U. S. 552, 563 ; Benedict’s Admiralty, §§ 313, 313a, 3135. And as to admiralty jurisdiction over liens on canal boats, see Murphy v. Salem, 1 Hun, 140 ; Chisholm v. Nor. Transp. Co., 61 Barb. 363, 388; Bya/n v. Hook, 34 Hun, 185; Wilson v. Lawrence, 82 N. Y. 499. Mr. George F. Thompson for defendant in error : I. Title 4 of chap. 23, New York Code of Civil Procedure, was a reenactment of chap. 482, Laws of 1862, for the enforcement of liens against ships and vessels which had been construed by the courts of that State and held unconstitutional so far as it provided a remedy for the enforcement of a maritime contract, but to be constitutional and effective so far as it related to the enforcement of liens by virtue of ordinary domestic contracts for the furnishing of repairs and supplies to domestic craft, such as boats constructed and used on the inland canals of the State, it being held that these are not maritime contracts within the meaning of the Constitution of the United States. Shepard v. Steele, 43 N. Y. 52 ; Mott v. Lansing, 53 • Y. 554; Poole v. Hermit, 59 N. Y. 555 ; Nelson v. Lawrence, 82 N. Y. 409 ; Brookman v. Hamil, 43 N. Y. 112; Fralich v. Betts, 13 Hun, 632; People's Ferry Co. v. Biers, 20 ow. 393 to 402; Allen v. Newbury, 21 How. 245; The Gen- 22 OCTOBER TERM, J903. Argument for Defendant in Error. 191 U. S. esee Chief, 12 How. 443 ; McGuire v. Card, 21 How. 248; Happy v. Mosher, 48 N. Y. 78; Delaney n. Britt, 51 N. Y. 78 ; In re Haines, 168 H. Y. 586. The admiralty is a maritime court instituted for the purpose of administrating the law of the sea, The Lottawanna, 21 Wall. 567, and the question as to the true limits of maritime law and admiralty jurisdiction is exclusively a judicial question and no state law or act of Congress can make it broader or narrower than the judicial power may determine these limits to be, but what the law is within these limitations, assuming the maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this country, and on such legislation as may have been competent to affect it. It has never before in any case before this court been attempted to confine contracts relating to an absolutely impotent vessel (i. e. one propelled by horse power by means of a rope attached to a team of horses walking on the land) to the exclusive jurisdiction of the admiralty courts. In all previous cases before this court there were involved sea-going ships or vessels plying between foreign countries or engaged in coasting trade between different States and Territories, or steamboats enrolled and licensed and engaged in interstate commerce and able of themselves to travel between ports and places of different States. The question has been discussed in its various phases by this court on several occasions. The St. Lawrence, I Black, 522 ; The Commerce, 1 Black, 578 ; Peyroux n. Howard, 7 Peters, 324 ; The Orleans, 11 Peters, 175 ; The General Smith, 4 Wheat. 438; Waring v. Clark, 5 How. 452; The Lexington, 6 How. 392; The Genesee Chief, 12 How. 443,454; The Magnolia, 20 How. 298 ; The Jefferson, 20 How. 393; Allen v. Newbury, 21 How. 245; McGuire n. Ca/rd, 21 How. 250 ; The Capitol, 22 How. 129 ; Hinev. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 624; The Eagle, 8 Wall. 20 ; The Grape Shot, 9 Wall. 129 ; The Lulu, 10 Wall. 197; The Kalorama, 10 Wall. 205 ; The Custer, 10 Wall. 215 ; Ins. Co. v. Dunham, II Wall. 21; Ex parte McNeal, 13 Wall. 243 ; Edwards v. Elliott, 21 Wall. 532; The Lottawanna, 21 Wall. 558; Ex THE ROBERT W. PARSONS. 23 191 U. S. Opinion of the Court. pa/rte Boyer, 109 U. S. 629 ; In re Garnett, 141 U. S. 1, 8 ; The J. E. Rumbull, 148 U. 8. 1 ; The Glide, 167 U. S. 606 ; Workman v. Mayor, 179 U. S. 553 ; Miller v. Mayor, 109 U. S. 385 ; The General Gass, 1 Brown’s Adm. 334 ; The Daniel Ball, 10 Wall. 557. The Montello, 20 Wall. 430, distinguished as arising under penal laws and the vessels being engaged in interstate commerce. The New York statute simply extends the common law lien, and the jurisdiction of the courts remains unaffected. The principal cases decided by the courts of the State of New York on this subject are the following : Mott v. Lansing, 53 N. Y. 554 ; Poole v. Kermit, 59 N. Y. 555 ; Wilson v. Lawrence, 82 N. Y. 409. A review of these decisions will disclose the fact that none of them are or have been in conflict with the decisions of this court on this subject. Courts of admiralty cannot and do not exercise jurisdiction in any form over what is termed as land contracts and give as a reason for this that these contracts are made on land and to be performed on land. Many of the decisions above cited reiterate this principle and it seems to be well settled, and in this regard this court has been followed by the courts of the State of New York. Peoples Ferry Co. v. Biers, 20 How. 393 and 402 ; Shepard v. Steele, 43 N. Y. 52 ; Brookman v. Rammill, 43 N. Y. 558. The facts show that a contract for repairs was made on land and was performed wholly and entirely on land—in a dry dock in an inland town. There is no reason therefore for refusing admiralty jurisdiction in the above cited cases that does not exist in this case. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. This case raises the question of the construction and constitutionality of the statutes of the State of New York, giving a en f°r repairs upon vessels, and providing for the enforcement of such lien by proceedings in rem. The statute con 24 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. ferring the lien, so far as it is material, is given in the margin.1 It will be noticed that it expressly excludes liens founded upon maritime contracts. That a State may provide for liens in favor of materialmen for necessaries furnished to a vessel in her home port, or in a port of the State to which she belongs, though the contract to furnish the same is a maritime contract, and that such liens can be enforced by proceedings in rem in the District Courts of the United States, is so well settled by a series of cases in this court as to be no longer open to question. The General Smith, 4 Wheat. 438; The Planter (Peyroux v. Howard), 7 Pet. 324; The St. Lawrence, 1 Black, 522. The remedy thus administered by the admiralty court is exclusive. The Moses Taylor, 4 Wall. 411; The Hine n. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 624; The Lottawanna, 21 Wall. 558; Johnson n. Chicago &c. Elevator Co., 119 U. S. 388, 397; The J. E. Rumbell, 148 U. S. 1, 12; The Josephine, 39 N. Y. 19; Brookman n. Hamill, 43 N. Y. 554; Poole v. Kermit, 59 N. Y. 554. If there were any doubts regarding this question they were completely • put to rest by the case of The Glide, 167 U. S. 606, in which it was distinctly held, in an exhaustive opinion by Mr.. Justice Gray, that the enforcement in rem of a lien upon a vessel for 1 Laws of New York (1897), chap. 418, Vol. 1, p. 514 ; May 13, 1897. “ Sec. 30. A debt which is not a lien by the maritime law, and which amounts to fifty dollars or upwards, on a sea-going or ocean-bound vessel, or fifteen dollars or upwards on any other vessel shall be a lien on such vessel, her tackle, apparel and furniture, and shall be preferred to all other liens thereon, except mariner’s wages, if such debt is contracted by the master, owner, charterer, builder or consignee of such ship or vessel, or by the agent of either of them, within this State, for either of the following purposes : “ 1. For work done or material or other articles furnished in this State for or towards the building, repairing, fitting, furnishing or equipping of such vessel.” (The other subdivisions are immaterial.) “ Seo. 35. If a lien, created by virtue of this article, is founded upon a maritime contract, it can be enforced only by proceedings in the courts of the United States, and in any other case, in the courts of this State, in the manner provided by the code of civil procedure.” THE ROBERT W. PARSONS. 25 191 U. S. Opinion of the Court. repairs and supplies furnished in her home port, was exclusively within the admiralty jurisdiction of the courts of the United States. It is equally well established that for causes of action not cognizable in admiralty, either in rem or in personam, the States may not only grant liens, but may provide remedies for their enforcement. Contracts for the building of a ship are the most prominent examples of such as are not maritime in their character, and hence within this rule. The Jefferson, 20 How. 393; The Capitol, 22 How. 129; Edwards v. Elliott, 21 Wall. 532; Johnson v. Chicago &c. Elevator Co., 119 U. S. 388; Sheppard v. Steele, 43 N. Y. 52. It remains to consider whether the contract in this case, which was for repairs furnished to a canalboat in a port of the State to which she belonged, was a maritime contract. If it were, the position of the state courts was wrong. The denial of exclusive jurisdiction on the part of the admiralty court to enforce this lien must rest upon one of two propositions: either because the cause of action arose upon an artificial canal, or because a canalboat is not a ship or vessel contemplated by the maritime law, and within the jurisdiction of the admiralty court. 1. At an early day, and following English precedents, it was held by this court in The Thomas Jefferson, 10 Wheat. 428, that the admiralty courts could not rightfully exercise jurisdiction “except in cases where the service was substantially performed, or to be performed, upon the sea, or upon waters within the ebb and flow of the tide.” The opinion is a brief one by Mr. Justice Story, and contains little more than the announcement of the general principle, and with no attempt to distinguish the English cases. It lacks wholly any display of the abundant learning which ten years before had characterized his celebrated opinion in De Lovio v. Boit, 2 Gall. 398; & C., Fed. Cas. No. 3776. The case was a strong one for the adoption of English precedents, as it concerned a voyage from a port in Kentucky up the Missouri River and back again to 26 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. the same port. It was, however, flatly overruled in The Genesee Chief, 12 How. 443, and the modern doctrine established, to which this court has consistently and invariably adhered, that not the ebb and flow of the tide, but the actual navigability of the waters is the test of jurisdiction. It is true that case arose upon the Great Lakes, but the rule was subsequently extended to cases arising upon the rivers above the tidal effect. Fretz v. Bull, 12 How. 466; The Magnolia, 20 How. 296. In The Daniel Ball, 10 Wall. 557, it was held that Grand River, a navigable water wholly within the State of Michigan, being a stream capable of bearing for a distance of forty miles a steamer of 123 tons burthen, and forming by its junction with Lake Michigan a continuous highway for commerce, both with other States and with foreign countries, was a navigable water of the United States, and the rule was broadly announced that “those rivers must be regarded as public navigable rivers in law, which are navigable in fact,” and that “they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries, in the customary modes in which such commerce is conducted by water.” The same principle was applied in The Montello, 20 Wall. 411, to the Fox River in Wisconsin, although its navigability was interrupted by rapids and falls over which portages were required to be made, and to Chicago River in Escanaba Co. v. Chicago, 107 U. S. 678. See also Miller v. The Mayor, 109 U. S. 385; In re Garnett, 141 U. S. 1, 8. The only distinction between canals and other navigable waters is that they are rendered navigable by artificial means, and sometimes, though by no means always, are wholly within the limits of a particular State. We fail to see, however, that this creates any distinction in principle. They are usually constructed to connect waters navigable by nature, and to THE ROBERT W. PARSONS. 27 191 U. S. Opinion of the Court. avoid the portage of property from one navigable lake or river, to another; or to improve or deepen a natural channel; and they are usually navigated by the same vessels which ply between the naturally navigable waters at either end of the canal. Examples of these are the St. Clair Ship Canal, connecting St. Clair River with the lake of the same name; the St. Mary’s Canal, connecting the waters of Lake Superior with those of Lake Huron; the Illinois and Michigan Canal, connecting the waters of Lake Michigan with the Mississippi River; the Welland Canal, between Lake Ontario and Lake Erie; the Suez Canal, between the Mediterranean and the Red Sea; the Great North Holland Canal, connecting Amsterdam directly with the German Ocean; and the Erie Canal, connecting Lake Erie with the Hudson River. Indeed, most of the harbors upon the lakes and Atlantic coast are made accessible by canals wholly artificial, or by an artificial channel broadening and deepening their natural approaches. Can it be possible that a cause of action which would be maritime, if occurring upon those connected waters, would cease to be maritime if arising upon the connecting waters? Must a collision which would give rise to a suit in admiralty, if occurring upon Lake Ontario, or Lake Erie, be prosecuted at common law, if happening upon the Welland Canal? This question arose in this country in the case of The Avon, 1 Brown’s Ad. 170; $. C., Fed. Cas. 680, in which Judge Emmons, in a carefully considered opinion, took jurisdiction of a collision upon that canal, although it was wholly within British territory. While this was with one exception, Scott v. Young American, Newberry’s Ad. 101, the earliest case in this country, it was no novelty in England, since in The Diana, Lush. 539, Dr. Lushington assumed jurisdiction of a collision between two British vessels in the Great North Holland Canal, rejecting altogether the contention that the legislature did not intend to give the court jurisdiction over matters occurring in foreign territorial waters. This jurisdiction has since been declared in England to extend to collisions between foreign vessels in the Bosphorus, The Mali 28 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. Ivo, L. R. 2 Ad. & Ecc. 356; and in the Scheldt, The Halley, L. R. 2 Priv. Conn. 193. See also The Thomas Carroll, 23 Fed. Rep. 912; The Oler, 2 Hughes, 12; >8. C., Fed.Cas.10,485; The E. M. McChesney, 8 Ben. 150; <8. C., 15 Blatch. 183; Mdlony v. The City of Milwaukee, 1 Fed. Rep. 611; The General Cass, 1 Brown’s Ad. 334; >8. C., Fed. Cas. 5307.- The tidal test was long since abolished by statute in England. 24 Viet, c. 10, May 17, 1861; Marsden on Collisions, 3d ed. 210. Finally, in Ex parte Boyer, 109 U. S. 629, such jurisdiction was held by this court to extend to collisions between two canalboats occurring in the Illinois and Lake Michigan Canal, Mr. Justice Blatchford observing that “navigable water situated as this canal is, used for the purposes for which it is used, a highway for commerce between ports and places in different States, carried on by vessels such as those in question here, is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly within the body of a State and subject to its.ownership and control.” The case is the more noteworthy from the fact that the canal was but sixty feet wide and six feet deep. It has never been overruled or questioned, and must be treated as settling the jurisdiction of the admiralty court over the waters of any artificial canal which is the means of communication between ports and places in different States and Territories. It is not intended here to intimate that if the waters, though navigable, are wholly territorial and used only for local traffic, such, for instance, as the interior lakes of the State of New York, they are to be considered as navigable waters of the United States. The Montello, 20 Wall. 411. In the case under consideration, however, the Erie Canal, though wholly within the State of New York, is a great highway of commerce between ports in different States and foreign countries, and is navigated by vessels which also traverse the waters of Hudson River from the head of navigation to its mouth. 2. But the crucial question involved in this case is whether THE ROBERT' W. PARSONS. 29 191 U. S. Opinion of the Court. the exclusive admiralty and maritime jurisdiction of the Federal courts attaches to canalboats—in other words, whether they are ships or vessels within the meaning of the admiralty law. If it be once conceded, as for the reasons above given we think it must be, that navigable canals used as highways for interstate or foreign commerce are navigable waters of the United States, it would be an anomaly to hold that such jurisdiction did not attach to the only craft used in navigating such canals. It is true that, in the more modern constructions, these canals are made wide and deep enough for the largest vessels; but it so happens that the Erie Canal was built at an early day, and was adapted only for vessels of light draught and peculiar construction. The possibilities of the future were then scarcely foreseen, and even if they had been, the State was too poor to provide for anything beyond the immediate present. For those purposes the canal was amply sufficient, and for twenty years was the principal means of communication with the Northwest, and was not only the highway over which all the merchandise was carried between the Hudson River and the Great Lakes, but was largely used for the transportation of passengers in the great Western immigration which immediately followed its construction. As late as 1850 large and handsomely equipped passenger vessels were run every day at stated hours, and the canal continued to be, even after the building of the railways, a favorite method of communication with the Great Lakes. While these boats were vessels of light draught, and were drawn by animal power, they were from 150 to 300 tons capacity—larger than those out of which arose the maritime law of modern Europe, and much larger than those employed by Columbus and the earlier navigators in their discovery of the new world. It is said by a writer in the Quarterly Review and quoted in Ben. Ad. Practice, sec. 220, that ‘ ‘ the first discoverers of America committed themselves to the unknown ocean in barks, one not above fifteen tons; Forbisher, in two vessels of twenty or twenty-five tons; Sir Humphrey Gilbert, in one of ten tons only.” The ships in 30 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. which the Vikings of Scandinavia invaded England, and ravaged the coasts of western Europe, (specimens of which are still preserved at Christiania,) were open boats, not exceeding 100 feet in length and 16 in breadth, and propelled partly by oars and partly by a single sail. In fact, neither size, form, equipment nor means of propulsion are determinative factors upon the question of jurisdiction, which regards only the purpose for which the craft was constructed, and the business in which it is engaged. The application of this criterion has ruled out the floating dry dock, the floating wharf, the ferry bridge hinged or chained to a wharf, the sailors’ Bethel moored to a wharf, Cope v. Valette Dry Dock Co., 119 U. S. 625; and a gas float moored as a beacon, The Whitton, L. R. 1895, P. 301; >8. C., L. R. 1896, P. 42; 8. C., L. R. 1897, A. C. 337. But it has been held in England to include a fishing coble, a boat of ten tons burthen, twenty-four feet in length, decked forward only, though accustomed to go only twenty miles to sea, and to remain out twelve hours at a time, Ex parte Ferguson, L. R. 6 Q. B. 280; a barge, The Malvina, Lush. 493, affirmed on appeal, Brown & Lush. 57; though not a dumb barge, propelled by oars only, Everard v. Kendall, L. R. 5 C. P. 428; and in America to steamers of five tons burthen, engaged in carrying freight and passengers upon navigable waters, The Pioneer, 21 Fed. Rep. 426; The Ella B., 24 Fed. Rep. 508; The Volunteer, 1 Brown’s Ad. 159, affirmed 15 Int. Rev. Rec. 59; a barge, without sails or rudder, used for transporting grain, The Wilmington, 48 Fed. Rep. 566; a floating elevator, The Hezekiah Baldwin, 8 Ben. 556. See also The Northern Belle, 9 Wall. 526; The Alabama, 22 Fed. Rep. 449; Endner v. Greco, 3 Fed. Rep. 411. Again, in Ex parte Boyer, 109 U. S. 629, this court held the jurisdiction of the admiralty court to extend to a collision between two canalboats of more than twenty tons burthen, one of which was in tow and the other propelled by steam. If the jurisdiction of the admiralty court in the case under consid- THE ROBERT W. PARSONS. 31 191 U. S. Opinion of the Court. eration depends, as it must, upon the facts that the cause of action arose upon the canal, and upon canalboats navigating such canal, the case of Boyer would seem to be decisive of this. So far as the Congress of the United States and the Parliament of England have incidentally spoken upon the subject, they have fixed a criterion of size as to what shall be considered a vessel within the admiralty jurisdiction far below the tonnage of an ordinary canalboat. By the original Judiciary Act of 1789, section nine, 1 Stat. 73, c. 20, jurisdiction was given to the District Courts of all seizures made “on waters which are navigable from the sea by vessels of ten tons or more burthen;” and by the act of February 26, 1845, 5 Stat. c. 20, 726 (now obsolete), The Eagle, 8 Wall. 15, admiralty jurisdiction was given to vessels navigating the Great Lakes and their connecting waters of twenty tons burthen and upwards. By section 4311, Rev. Stat., vessels of twenty tons and upwards, enrolled and licensed, and vessels of less than twenty tons, not enrolled but licensed, shall be deemed vessels of the United States; and by section 4520 all vessels of fifty tons or upwards are required to ship their seamen under written articles. By the English Merchants’ Shipping Act of 1854, the word “ship shall include every description of vessel used in navigation, not propelled by oars;” and a similar description is given of vessels within the admiralty jurisdiction, in the Admiralty Court Act of 1861. It seems, however, to be supposed that the fact that boats engaged in traffic upon the Erie Canal are drawn by horses is sufficient of itself to exclude them from the jurisdiction of the admiralty courts. This, however, is an argument which appeals less to the reason than to the imagination. So long as the vessel is engaged in commerce and navigation it is difficult to see how the jurisdiction of admiralty is affected by its means of propulsion, which may vary in the course of the same voyage, or with new discoveries made in the art of navi-ga ion. Thus, canalboats, upon their arrival at Albany, are at once relieved of their horses, and taken by a steamer in tow 32 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. to New York or Jersey City. To hold that such boats are not within the admiralty jurisdiction of the courts, while on a trip down the Hudson River, would require us to overrule a large number of cases in this court, in which it was assumed by both parties and the court that for damages sustained by collision with other vessels they were entitled to pursue the wrongdoer in courts of admiralty. The Quickstep, 9 Wall. 665; The Syracuse, 12 Wall. 167; The Atlas, 93 U. S. 302; The L. P. Dayton, 120 U. S. 337; The E. A. Packer, 140 U. S. 360. But it would seem like sticking in the bark to hold that a canalboat might recover for a collision while in tow of a tug, but might not recover while in tow of a horse. The case does not raise the question whether hay and oats furnished the horses are necessaries within the meaning of the admiralty law, though a casuist might have difficulty in drawing a distinction between coal and oil furnished to one engine of propulsion and hay and oats to another, or between food furnished to a crew and food furnished to the horses. Replying to the suggestion that, if jurisdiction were sustained of repairs upon a canalboat drawn by horses, it would apply with equal propriety to a blacksmith’s bill for shoeing the horses, it is only necessary to say that, for incidental repairs made on land to articles of a ship’s furniture or machinery, it has never been supposed that a court of admiralty had jurisdiction. Indeed, it would seem extremely doubtful if liens for these trivial bills were intended to be created by the state law. Articles removed from a vessel and repaired or renovated upon land at the shop of the artisan, stand upon quite a different footing from repairs made upon the vessel herself, and are the subject of a possessory lien at common law. The truth is, the present employment of horses is a mere accident, and likely to be changed at any time by an enlarge ment of the canal, now in contemplation, when steam or elec tricity will probably supplant the present methods of loco motion. The modern law of England and America rules out THE ROBERT W. PARSONS. 33 191 U. S. Opinion of the Court. of the admiralty jurisdiction all vessels propelled by oars, simply because they are the smallest class and beneath the dignity of a court of admiralty; but long within the historic period, and for at least seven hundred years, the triremes and quadriremes of the Greek and Roman navies were the largest and most powerful vessels afloat. It is true the amount involved in this case is a small one, but the jurisdiction of the admiralty court has never been determined by the amount, though appeals from the District Court to the Supreme Court were first limited to cases involving $300, subsequently reduced to $50, and finally, by the Court of Appeals act, allowed apparently in all cases regardless of amount. So, also, cases may be brought under the patent and copyright laws, quite irrespective of the amounts involved. 3. As heretofore observed, the exclusive jurisdiction of the admiralty court in this case was attacked upon the grounds, already discussed, that artificial canals and the vessels plying thereon are not within its jurisdiction. A further suggestion, however, is made that the contract in this case was not only made on land but was to be performed on land, and was in fact performed on land. This argument must necessarily rest upon the assumption that repairs put upon a vessel while in dry dock are made upon land. We are unwilling to admit this proposition. A dock is an artificial basin in connection with a harbor, used for the reception of vessels in the taking on or discharging of their cargoes, and provided with gates for preventing the rise and fall of the waters occasioned by the tides, and keeping a uniform level within the docks. A dry dock differs from an ordinary dock only in the fact that it is smaller, and provided with machinery for pumping out the water in order that the vessel may be repaired. All injuries suffered by the hulls of vessels below the water line, by collision or stranding, must necessarily be repaired in a dry dock, to prevent the inflow of water, but it has never been supposed, and 1 is believed the proposition is now for the first time made, t at such repairs were made on land. Had the vessel been vol. cxoi—3 34 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. hauled up by ways upon the land and there repaired a different question might have been presented, as to which we express no opinion; but as all serious repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs. No authorities are cited to this proposition and it is believed none such exist. Suppose, for instance, it were believed that the repairs could be made upon this vessel without going into dry dock, but it was afterward discovered that the injuries were more extensive and that a dry dock were necessary; would a court of admiralty thereby be deprived of jurisdiction? Or, suppose such repairs were made in a floating dry dock, as sometimes happens, would they be considered as made upon land or water? Or, suppose they were made in dry dock upon a seagoing vessel? There is no doubt of the proposition that a dry dock itself is not a subject of salvage service or of admiralty jurisdiction, because it is not used for the purpose of navigation. That was settled in Cope v. Vallette Dry Dock Co., 119 U. S. 625. But the case was put upon the express ground that a dry dock was like a ferry bridge or sailors’ floating meeting house, and was no more used for the purposes of navigation than a wharf or a warehouse projecting into or upon the water. 4. Suggestion is also made that the admiralty jurisdiction of the Federal courts does not extend to contracts for the repair of vessels engaged wholly in commerce within a State. It is true that as late as 1858, in The Fashion (Allen v. Newberry'), 21 How. 244, it was held that, under the act of Congress of 1845, extending jurisdiction of the Federal courts to vessels employed in navigation upon the Great Lakes, between ports and places in different States, it did not extend to the case of a shipment of goods from a port in one State to another port in the same State; and that in the case of The Goliah (McGuire v. Card), 21 How. 248, the same doctrine THE ROBERT W. PARSONS. 35 191 U. S. Opinion of the Court. was extended to a contract for supplies furnished to a vessel engaged in trade between different ports in the State of California. These cases, however, were practically overruled by that of The Belfast, 7 Wall. 624, in which a state statute, similar to the statute of New York involved in this case, for a breach of contract of affreightment between ports in the same State, (Alabama,) was held to be unconstitutional and void, although the shipment was between ports of the same State. The contention was distinctly made (p. 635) that the state court had jurisdiction because the contract of affreightment was between ports and places in the same State, but it was as distinctly disclaimed by the court, and the prior cases practically overruled. So also in Ex parte Boyer, 109 U. S. 629, the doctrine of The Belfast was reiterated and applied to a collision between canalboats, Mr. Justice Blatchford saying: “That it makes no difference as to the jurisdiction of the District Court, that one or the other of the vessels was at the time of the collision on a voyage from one place in the State of Illinois to another place in the same State.” To the same effect are The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 411; The Commerce, 1 Black, 574, and Lord v. Steamship Co., 102 U. S. 541. So, too, in In re Garnett, 141 U. S. 1, the limited liability act was held to be a part of the law of the United States, enforceable upon navigable rivers above tide waters, and applicable to vessels engaged in commerce between ports in the same States. In delivering the opinion Mr. Justice Bradley said (p. 15): In some of the cases it was held distinctly that this jurisdiction does not depend upon the question of foreign or interstate commerce, but also exists where the voyage or con-ract, if maritime in character, is made and is to be performed oily within a single State”—citing all the cases noticed in this opinion. In The E. M. McChesney, 8 Ben. 150, Judge Blatchford, niore recently of this court, sustained a libel against a canaloat for non-delivery of a cargo shipped on a canalboat in 36 OCTOBER TERM, 1903. 191 U.S. Opinion of the Court. Buffalo to be carried to New York. In that case, as in this, it was contended that neither the canal nor the canalboat were subjects of the admiralty jurisdiction. The case is directly in point. It is believed that since the case of The Belfast, 7 Wall. 624, the distinction has never been admitted between contracts concerning vessels engaged in trade between ports of the same and between ports of different States. Of course, nothing herein said is intended to trench upon the common law jurisdiction of the state courts, which is, and always has been, expressly saved to suitors “where the common law is competent to give it.” Rev. Stat. sec. 563, sub. 8. By that law an action will always lie against the master or owner of the vessel, and, if the laws of the State permit it, the vessel may be attached as the property of the defendant in the case. But, as remarked by Mr. Justice Miller in The Hine v. Trevor, 4 Wall. 555, 571: A statute providing that a vessel may be sued and made defendant without any proceeding against the owners, or even mentioning their names, partakes of all the essential features of an admiralty proceeding in rem, of which exclusive jurisdiction is given to the District Courts of the United States. See also The Moses Taylor, 4 Wall. 411, 427, wherein it is said: “The action against the boat by name, authorized by the statute of California, is a proceeding in the nature and with the incidents of a suit in admiralty. The distinguishing and characteristic feature of such suit is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly.” In The Belfast, 7 Wall. 624, a proceeding was taken in a state court in Alabama for the enforcement of a lien for the loss of certain cotton. The statute was, in its essentials, a reproduction of the New York statute under consideration. Plaintiffs contended that, admitting the admiralty courts had jurisdiction, the state courts had concurrent jurisdiction to afford the parties the same remedies. It was held that sta THE ROBERT W. PARSONS. 37 191 U. S. Opinion of the Court. legislatures had no authority to create a maritime lien, or to enforce such a lien by a suit or proceeding in rem, as practiced in the admiralty courts. In all these cases the distinction is sharply drawn between a com mon law action in personam with a concurrent attachment against the goods and chattels of the defendant, subject, of course, to any existing liens, and a proceeding in rem against the vessel as the debtor or “ offending thing,” which is the characteristic of a suit in admiralty. The same distinction is carefully preserved in the general admiralty rules prescribed by this court; rule second declaring that in suits in personam the mesne process may be “by a warrant of arrest of the person of the defendant, with a clause therein that if he cannot be found, to attach his goods and chattels to the amount sued for;” and rule nine, that in suits and proceedings in rem the process shall be by warrant of arrest of the ship, goods or other things to be arrested, with public notice to be given in the newspapers. The former is in strict analogy to a common law proceeding and is a concurrent remedy. The latter is a proceeding distinctively maritime, of which exclusive jurisdiction is given to the admiralty courts. That the New York statute belongs to the latter class is evident from the code, by which, upon written application to a justice of the Supreme Court, a warrant is issued for the seizure of the vessel, and for an order to show cause why it should not be sold to satisfy the lien. The warrant in this case recites “that an application had been made to me . . . for a warrant to enforce a lien against the canalboat or vessel called Rob’t W. Parsons,” and commands the sheriff “to seize and safely keep said canalboat to satisfy said claim ... as above set forth, to be a lien upon said vessel according to law.” The proceeding authorized by the New York statute in question was held to be in the nature of a suit in admiralty in The Josephine, 39 N. Y. 19, and Brookman v. Hamill, 43 N. Y. 554. he proceeding is also similar to that provided by the laws of Massachusetts, which, in the case of The Glide, 167 U. S. 606, 38 OCTOBER TERM, 1903. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. 191U. S. was held to be, as to repairs and supplies in the home port, exclusively within the admiralty jurisdiction of the Federal courts. As section 30 of the New York statute excludes a debt which is not a hen by the maritime law, and Code § 3419, providing for their enforcement, also excludes liens founded upon a maritime contract, we think the state courts were in error in enforcing this Hen, thereby holding that a contract for the repair of a canalboat while lying in the Erie Canal was not a maritime contract, and that the statute so construed is pro tanto unconstitutional. The judgment of the court below must, therefore, be reversed, and the case remanded to the Supreme Court of the State of New York for further proceedings not inconsistent with this opinion. Mr. Justice Brewer, with whom the Chief Justice and Mr. Justice Peckham concurred, dissenting. I am unable to concur in the opinion and judgment in this case, and deem the matter of sufficient importance to justify an expression of my reasons therefor. It is well to understand exactly the facts of the case. Sections 30 and 35 of the Laws of New York, 1897, chap. 418, are quoted in the opinion of the court. By the first a lien is given on a seagoing or oceanbound vessel, if the amount of the debt is $50 or upwards, and on any other vessel if $15 or upwards. And among other things the lien is for work done or material or other articles furnished for the building or repairing of such vessel. By the second the lien, if founded upon a maritime contract, can be enforced only in the United States courts; if not founded upon such a contract, by proceedings in the state courts, in the manner provided by the Code of Civil Procedure. The canalboat, upon which the lien was claimed, was not a seagoing or oceanbound vessel, but engaged in carrying merchandise between Buffalo and other ports within the limits of the State of New York. The statements in two affidavits, THE ROBERT W. PARSONS. 39 191U. S. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. one of the plaintiff and the other the defendant, (the plaintiff being the owner of the claim and the defendant the owner of the boat,) were, by stipulation between the parties, agreed upon as the facts in the case. No question was made of the justice of the claim or the liability of the owner of the boat therefor. The work consisted in “permanent repairs upon the boat,” in this that “a part of one side of said boat was taken out and her cheek plank removed and the side of the boat and the cheek plank were rebuilt into said boat.” The work was done upon dry docks belonging to the plaintiff in the village of Middleport, a village located on the Erie Canal. The boat at the time was on a trip from New York to Buffalo. The value of these permanent repairs was $154.40, and the boat when thus repaired sold for only $155. Further, according to the bill of particulars, 727 feet of lumber, 47 bolts, 165 pounds of spikes and 265 pounds of iron, as well as 334 hours of labor, which, at 10 hours a day, amounted to over 33 days, were used in the work. The size of the canalboat is not given, but from this statement as to the amount and value of the work it is evident that the repairs might well be considered a rebuilding of the boat. Be that as it may, the contract was made on land, to be performed on land, and was in fact performed on land. The plaintiff was a canalboat builder, having dry docks and yards at the village of Middleport, and on these dry docks the work was done. Was this a maritime contract? A contract for building a ship or supplying materials for her construction is not a maritime contract. People's Ferry Co. of Boston v. Beers, 20 How. 393; Roach v. Chapman, 22 How. 129. In the former of these cases the court said (p. 402): “So far from the contract being purely maritime, and touching rights and duties appertaining to navigation (on the ocean or elsewhere), it was a contract made on land, to be performed on land.” So in Sheppard v. Steele, 43 N. Y. 52, 56 : The claim here, is for labor upon the hull of a vessel, while in the process of construction, before launching, while yet on 40 OCTOBER TERM, 1903. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. 191 U.S. the land. This is not a maritime contract. It is one relating to a subject on the land, and it is to be performed on the land. The admiralty courts have no jurisdiction for its enforcement. Foster v. The Richard Busteed, 100 Mass. 409.” That a dry dock is to be considered as land in the maritime law seems to be clear from the decision of this court in Cope v. Vallette Dry Dock Company, 119 U. S. 625, in which it was held that a dry dock was not a subject of salvage service, Mr. Justice Bradley, speaking for the court, saying (p. 627): “A fixed structure, such as this dry dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water.” The dry dock referred to in this case was a floating dock fastened by chains to the bank of the Mississippi River. Whether the dock in this case was likewise fastened by chains or a structure permanently attached to the land does not appear. Certainly it cannot be presumed, for the purpose of reversing the judgments of the state courts, that it was not permanently attached to and as much a part of the land as a bridge or a wharf. In this connection reference may be had to Bradley v. Boltes, Abbott’s Admiralty Reports, 569, in which it was held by Judge Betts that work done upon a vessel in a dry dock in scraping her bottom preparatory to coppering her is not of a maritime character, and that compensation for such labor cannot be recovered in a court of admiralty. Judge Betts says in his opinion that the court had repeatedly held that contracts of that description do not constitute a lien upon vessels which can be enforced in admiralty. In Boon v. Th# Hornet, Crabbe, 426, a canalboat was hauled on shore on the bank of a river where the tide ebbed and flowed, and there repaired. It was held that, although the law of the State gave a lien, the admiralty court would not take cognizance of such a claim. So also where damage is done wholly upon the land a -miralty will not take jurisdiction, although the cause of the THE ROBERT W. PARSONS. 41 191 U. 8. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. damage originated on waters subject to its jurisdiction. The Plymouth, 3 Wall. 20; Ex parte Phenix Insurance Company, 118 U. S. 610; Johnson v. Chicago & Pacific Elevator Company, 119 U. S. 388. Two of these were cases in which fire originating on a vessel communicated to property on land, and the owner of the property attempted to recover in the admiralty courts, but their jurisdiction was denied. The other was where a vessel, while being towed in the Chicago River, struck and damaged a building on the land. For this damage an action was maintained in the state court and the jurisdiction of that court upheld. It would seem to follow from these cases that a contract made on land, to be performed on land, and in fact performed on land, is not subject to admiralty jurisdiction. And, likewise, that a tort resulting in injury to something on the land is also not subject to admiralty jurisdiction, although the tort was on waters subject to such jurisdiction. It is true many cases may be found in which it is stated generally that admiralty has jurisdiction of claims for repairs upon vessels, but evidently that contemplates repairs made while the vessel is in the water. In this connection I notice a statement in the opinion of the court, that “for incidental repairs made on land to articles of a ship’s furniture or machinery it has never been supposed that a court of admiralty had jurisdiction.” But if an engine be taken out of a steam tug and repaired on land, and a court of admiralty has no jurisdiction of the claim for such repairs, has it any more claim when the hull of a canalboat is brought on to the land and the side of it replaced? In each case the contract is one performed on the land, and although having ultimate relation to navigation on the water it is not of itself directly connected with navigation. Further, no objection can of course be made to the New York statutes. Section 30 gives a lien, and no one questions the power of a State to provide for such a lien to be enforced in some court. Section 35 provides that if the lien is founded on a maritime contract it is enforcible only in the courts of the 42 OCTOBER TERM, 1903. Brewer. J., Fuller, C. J., and Peckham, J., dissenting. 191 U. S. United States. Surely that is as far as the most strenuous advocates of an extended admiralty jurisdiction can claim, and it is only in those cases, as the section provides, where the lien is not founded upon a maritime contract, that the state courts may exercise jurisdiction. The state courts of New York, from the trial through the Supreme to the Court of Appeals, have all held that this lien was not founded upon maritime contract. Upon what just ground can this court disturb this finding? If it be a pure question of fact, we have often held that we are bound by the action of the state courts. If it is one partly of fact and partly of law, then surely we ought not, except in the clearest case, to reverse those courts. Still again, it has been repeatedly declared by this court, following the statute, that a claim cognizable in admiralty can be enforced in the state courts by common law remedies. Now, whatever may be the nature of the contract, (the foundation of the hen in this instance,) the only provision in section 35 is that it can be enforced in the manner provided by the Code of Civil Procedure. Turning to the Code of Civil Procedure, we find in Title IV of chapter 23 the provisions for the enforcement of liens on vessels. These provisions are, first, the lienor is to make a written application to a justice of the Supreme Court for a warrant to enforce the lien and to collect the amount thereof, which application must state substantially the same facts as in an ordinary pleading to enforce a mechanic’s lien on buildings. Section 3420. Upon the filing of such application the justice is directed to issue a warrant for the seizure of the vessel, and at the same time to grant an order to show cause why the vessel should not be sold to satisfy the hen. A copy of the order and the application for the warrant must be served personally upon the master or other person in charge of the vessel, “and personally upon the owner and consignee of such vessel if a resident of the State, or if not a resident o the State, by mail addressed to such owner or consignee a his last known place of residence, within ten days after t e THE ROBERT W. PARSONS. 43 191U. S. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. execution of such warrant.” Sections 3422 and 3423. By section 3424, the applicant is also required to give notice in some paper published in the county where the vessel was seized, “ stating the issuance of the warrant, the date thereof, the amount of the claim specified therein, the name of the applicant, and the time and place of the return of the order to show cause.” By section 3425, the owner or consignee, or any other person interested, may appear and contest the claim of the lienor. Subsequent provisions authorize an appeal, as in other civil cases. The record shows that the proceedings had were substantially in accordance with these provisions. The application, called a petition, was filed, setting forth all the facts required, including the name of the owner. An order of sale and an order to show cause were both issued, and the owner appeared in response to such notice. It is true there is in the record no proof of service upon the owner, but the fact of her appearance to contest the application is shown. It is also true that she did not after her appearance contest the amount of the claim, but contented herself with challenging the jurisdiction of the court. But such action on her part does not obviate the fact that the proceedings on behalf of the petitioner were substantially those to collect a civil debt by attachment against the property of the defendant. In this connection reference may be had to The Hine v. Trevor, 4 Wall. 555, in which an Iowa statute was held unconstitutional, but, as said by Mr. Justice Miller, speaking for the court, on page 571, describing the remedy provided for by that statute * The remedy pursued in the Iowa courts, in the case before us, is in no sense a common law remedy. It is a remedy partaking of all the essential features of an admiralty proceeding m rem. The statute provides that the vessel may be sued and ma e defendant without any proceeding against the owners, °r even mentioning their names. That a writ maybe issued an the vessel seized, on filing a petition similar in substance o a libel. That after a notice in the nature of a monition, 44 OCTOBER TERM, 1903. Brewer. J., Fuller,C. J., and Peckham, J., dissenting. 191 U.S. the vessel may be condemned and an order made for her sale, if the liability is established for which she was sued. Such is the general character of the steamboat laws of the Western States.” But in the very same case it was also said by the learned justice: “While the proceeding differs thus from a common law remedy, it is also essentially different from what are in the West called suits by attachment, and in some of the older States foreign attachments. In these cases there is a suit against a personal defendant by name, and because of inability to serve process on him on account of non-residence, or for some other reason mentioned in the various statutes allowing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may be rendered against him. This proceeding may be had against an owner or part owner of a vessel, and his interest thus subjected to sale in a common law court of the State. “Such actions may, also, be maintained in personam against a defendant in the common law courts, as the common law gives; all in consistence with the grant of admiralty powers in the ninth section of the Judiciary Act.” So in the case at bar, we have a proceeding authorized by the statute in which the owner is named, and notice require to be served on him, and notice in fact served, an appearance of the defendant and an opportunity to try the merits of t e claim, as in any other civil action. That a State has full control over the practice and procedure to be pursued in its courts has been often adjudged. ■ in Missouri v. Lewis, 101 U. S. 22, 31, it was said by Justice Bradley, speaking for the court: “We might go still further, and say, with undoubted tru , that there is nothing in the Constitution to prevent any Sta e from adopting any system of laws or judicature it sees fit or all or any part of its territory.” THE ROBERT W. PARSONS. 45 191 U. S. Brewer, J., Fuller, C. J., and Peckham, Jdissenting. Again, in Ex parte Reggel, 114 U. S. 642, 651, Mr. Justice Harlan used these words: “That Commonwealth [Pennsylvania] has the right to establish the forms of pleadings and process to be observed in her own courts, in both civil and criminal cases, subject only to those provisions of the Constitution of the United States involving the protection of life, liberty and property in all the States of the Union.” So Mr. Justice White, speaking for the court, in Iowa Central Railway Company v. Iowa, 160 U. S. 389, 393, declared: “But it is clear that the Fourteenth Amendment in no way undertakes to control the power of a State to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice and affords fair opportunity to be heard belore the issues are decided.” See, also, Chicago, Burlington & Quincy Railroad v. Chicago, 166 U. S. 226; Backus v. Fort Street Union Depot Company, 169 U. S. 557, 570; Brown v. New Jersey, 175 U. S. 172; League v. Texas, 184 U. S. 156,158. But it is said that while this is generally true there is this limitation, that the State cannot, as to claims against vessels, adopt the procedure now obtaining in admiralty cases, or, without actual notice to the owner, seize and sell a vessel in satisfaction of a lien. Of course, it is not necessary to determine that question, because, as I have stated, there was notice to the owner and an appearance by her, and such proceeding was authorized by the statute. But even if it was not so authorized, and was simply a direct proceeding to enforce a lien upon the vessel and sell it in satisfaction thereof, I insist that the state courts may entertain jurisdiction. It was held in Arndt v. Griggs, 134 U. S. 316, that a State may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defendant, eing a non-resident, is only brought into court by publication. The question was discussed at length, the authorities 46 OCTOBER TERM, 1903. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. 191 U. S. reviewed, and the conclusion reached that the State had such jurisdiction over real estate within its limits that it could determine the title without the personal presence of the owner. But has the State any less jurisdiction over personalty situated within its borders than it has over real estate? Upon what theory of state power can it be held that a State may divest a non-resident of his title to real estate and not a nonresident of his title to personal property? There seems to be a contention that there is a peculiar sanctity in the form of admiralty proceedings which excludes the States from resort to them, but the jurisdiction of the admiralty courts does not depend on the form of the procedure. Congress may if it see fit change entirely that procedure. As said by Chief Justice Taney in The Genesee Chief, 12 How. 443, 460: “The Constitution declares that the judicial power of the United States shall extend to 1 all cases of admiralty and maritime jurisdiction.’ But it does not direct that the court shall proceed according to ancient and established forms, or shall adopt any other form or mode of practice. The grant defines the subjects to which the jurisdiction may be extended by Congress. But the extent of the power as well as the mode of proceeding in which that jurisdiction is to be exercised, like the power and practice in all the other courts of the United States, are subject to the regulation of Congress, except where that power is limited by the terms of the Constitution or by necessary implication from its language. In admiralty and maritime cases there is no such limitation as to the mode of proceeding, and Congress may therefore in cases of that description give either party right of trial by jury, or modify the practice of the court in any other respect that it deems more conducive to the administration of justice. Suppose Congress should exercise this power and substitute for the procedure in admiralty courts the common law prac tice, and make it the only method of procedure therein. What would become of the argument that the State cannot reso to the procedure obtaining in admiralty courts for enforcing THE ROBERT W. PARSONS. 47 191 U. S. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. the rights of claimants? Must it then desist from common law remedies because they have been adopted in admiralty and go back to that form of procedure now obtaining in the admiralty courts? Can it be that the power of a State to vest jurisdiction in one of its courts depends upon the form of procedure which it adopts? Why should we be so anxious to drive parties having small claims away from their local courts to courts not infrequently held at a great distance? Why should we be so anxious to force litigants into a court where there is no constitutional right to a trial by jury ? I for one believe that the right of trial by jury is not to be taken away from a claimant unless it be a case coming clearly within the well-established limits of equity and admiralty cases. I do not like to see these provisions which have so long been the boast of our Anglo-Saxon system of procedure frittered away by either legislative or judicial action. Further, it seems a great hardship that a party who has been brought into a court of general jurisdiction, with full opportunity to litigate the claim of the plaintiff, and has carried the case through all the courts of the State without ever disputing its validity, should now obtain a reversal of the entire proceedings when such reversal may operate to prevent the collection of the debt. By section 33 of chapter 418, heretofore referred to, the lien expires at the expiration of twelve months from the time the debt was contracted. Of course, the lien is now gone. The canalboat has very likely sappeared and the owner may be entirely irresponsible. Even if these objections to the opinion and judgment of t e court are wholly without foundation, there is still an-ot er, broader and deeper. I do not believe that under the rue interpretation of the Constitution the admiralty juris-ction of the Federal courts extends to contracts for the repairs of vessels engaged wholly in commerce within a State. recognize the fact that this court has decided in a series of Cases, commencing with The Genesee Chief, 12 How. 443, that 48 OCTOBER TERM, 1903. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. 191 U.S. the admiralty jurisdiction of the Federal courts is not limited by tide waters, as admiralty jurisdiction was understood to be limited both in Great Britain and in this country at the time the Constitution was framed, but extends to all navigable waters of the United States, and I have no disposition to question the correctness of those decisions,, or in any way limit their scope. But what is admiralty? It is the law, not of the water, but of the seas. As said in Edwards on Admiralty Jurisdiction, p. 29: “But its jurisdiction may be said to rest generally on the following considerations: First, the nature of the property to be adjudicated upon; secondly, the question to be decided; thirdly, the origin of the cause; and fourthly, the locality;and these must be of the sea to give the admiralty a jurisdiction.” So also in Edwards v. Elliott, 21 Wall. 532, 553, is this declaration of this court: “Maritime contracts are such as relate to commerce and navigation, and unless a contract to build a ship is to be regarded as a maritime contract, it will hardly be contended that a contract to furnish the materials to be used in accomplishing that object can fall within that category, as the latter is more strictly a contract made on land, and to be performed on land, than the former, and is certainly one stage further removed from any immediate and direct relation to commerce and navigation.” , It grew up out of the fact that the ocean is not the territoria property of any nation, but the common property of all, tha vessels engaged in commerce between the different nations ought, so far as possible, to be subject to a uniform law, an not annoyed by the conflicting local laws and customs of t e several nations which they visit. I do not mean that t e several maritime nations did not establish different rules, or that there is not some dissimilarity in their maritime laws, or as long as each nation is the master of its own territory it may legislate as it sees fit in reference to maritime matters coming within its jurisdiction, and yet this does not abridge the ac 49 THE ROBERT W. PARSONS. 191U. S. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. that admiralty grew up out of the thought of having a common law of the seas. It was well said by Mr. Justice Bradley in The Lottawanna, 21 Wall. 558, 572: “ Perhaps the maritime law is more uniformly followed by commercial nations than the civil and common laws are by those who use them. But, like those laws, however fixed, definite and beneficial the theoretical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have. But the actual maritime law can hardly be said to have a fixed and definite form as to all the subjects which may be embraced within its scope. • Whilst it is true that the great mass of maritime law is the same in all commercial countries, yet, in each country, peculiarities exist either as to some of the rules or in the mode of enforcing them. Especially is this the case on the outside boundaries of the law, where it comes in contact with or shades off into the local or municipal law of the particular country and affects only its own merchants or people in their relations to each other. Whereas, in matters affecting the stranger or foreigner, the commonly received law of the whole commercial world is more assiduously observed—as, in justice, it should be. No one doubts that every nation may adopt its own maritime code. France may adopt one, England another, the United States a third; still, the convenience of the commercial world, bound together, as it is, by mutual relations of trade and intercourse, demands that, in all essential things wherein those relations bring them in contact, there should be a uniform law founded on natural reason and justice. Hence the adoption by all commercial nations (our own included) of the general maritime law as the basis and groundwork of all their maritime regulations. . . . Each State adopts the maritime law, not as a code having any independent or inherent force, pro-pno vigors, but as its own law, with such modifications and Qua ifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption vol, cxoi—4 50 OCTOBER TERM, 1903. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. 191 U.S. it would not be law. And thus it happens that from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common comes to be the common maritime law of the world.” In the opinion of Chief Justice Taney, in The Genesee Chief, 12 How. 443, in which this court for the first time held that the jurisdiction of the admiralty courts extended above tide water, the argument is thus stated (p. 454): “In England, undoubtedly, the writers upon the subject, and the decisions in its courts of admiralty, always speak of the jurisdiction as confined to tide water. And this definition in England was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide; nor any place where a port could be established to carry on trade with a foreign nation, and where vessels could enter or depart with cargoes. In England, therefore, tide water and navigable water are synonymous terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from private ones; and they took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the character of the river. Hence the established doctrine in England, that the admiralty jurisdiction is con fined to the ebb and flow of the tide. In other words, it is confined to public navigable waters. “At the time the Constitution of the United States was adopted, and our courts of admiralty went into operation, t e definition which had been adopted in England was equa y proper here. In the old thirteen States the far greater pa of the navigable waters are tide waters. And in the Sta es which were at that period in any degree commercial, an^ where courts of admiralty were called on to exercise t e jurisdiction, every public river was tide water to the ea of navigation, And, indeed, until the discovery of steam oa s. THE ROBERT W. PARSONS. 51 191 U. S. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. there could be nothing like foreign commerce upon waters with an unchanging current resisting the upward passage. The courts of the United States, therefore, naturally adopted the English mode of defining a public river, and consequently the boundary of admiralty jurisdiction. It measured it by tide water. And that definition having found its way into our courts, became, after a time, the familiar mode of describing a public river, and was repeated, as cases occurred, without particularly examining whether it was as universally applicable in this country as it was in England.” Again, as said by this court, in The Propeller Commerce, 1 Black, 574, 579: “All such waters are, in truth, but arms of the sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself.” Such being the general nature of admiralty, and the jurisdiction of its courts being understood, at the time of the adoption of our Constitution, to relate to the ocean and the arms thereof, with the view of uniformity in respect to international commerce, what was granted to the general government when to its courts was given exclusive jurisdiction over “all cases of admiralty and maritime jurisdiction?” Did it mean that the judicial power of the United States should extend to com roversies respecting contracts and torts concerning every vessel upon all the waters of the several States? It is not preen ed that it did. Take an inland lake, wholly within the nuts of the territory of a State and having no connection t e ocean- The admiralty jurisdiction of the Federal our s oes not extend to contracts or collisions in respect to J U^n,SUch waters- TAe Montello, 11 Wall. 411. But why not admiralty jurisdiction of the United States courts Stat landl°cked waters wholly within the limits of a the W en does extend to waters having connection with JustipCe^r pearly, as shown by the quotation from Chief the us aney s opinion in The Genesee Chief, because since e of steam, foreign commerce may extend into such 52 OCTOBER TERM, 1903. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. 191 U.S. waters, and therefore, the full exercise of the admiralty jurisdiction which concerns the law of the sea requires that that jurisdiction should be co-extensive with waters which may be traversed by oceangoing vessels. It matters not whether such waters are natural or artificial highways, canals or rivers. If they open to the ocean or are connected with the ocean they become, or may become, the highways of ocean commerce, and therefore in order that the admiralty jurisdiction may be fully exercised it was held, and rightfully, in Th Genesee Chief, that it extends to all navigable waters of the United States. Take the case of a landlocked lake within the limits of New York. Unquestionably the State has full jurisdiction over its waters and the vessels traversing them. The admiralty courts of the United States would not assume any jurisdiction. Can it be that if the State of New York constructs a canal by which the waters of that lake are connected with the ocean, it is deprived of its full jurisdiction over those waters and the vessels traversing them? Doubtless to a certain extent and for the purpose of fully effectuating the admiralty jurisdiction of the nation the Federal courts in admiralty would have a certain jurisdiction. Take the case of The Diana, Lush. 539, in which Dr. Lushington assumed jurisdiction over a collision between two British vessels in the Great North Holland Canal. Can it for a moment be supposed that the English admiralty courts would take jurisdiction of a claim for repairs made on a Dutch canalboat in sue canal; or, to bring the case nearer home, would the Brilas admiralty courts take jurisdiction of the claim of this plam tiff for the work done upon the defendant’s canalboat? r would the admiralty courts of the United States take juris diction of a like action brought for repairs done to a canal oa on the canal between Liverpool and Manchester? Cleary these matters are of local significance, and of local sigm cance alone. . . If it be said that the State of New York in the case ci . would, notwithstanding the construction of a canal betwee THE ROBERT W. PARSONS. 53 191 IT. S. Brewer, J., Fuller, C. J., and Peckham, J., dissenting. the hitherto landlocked lake and the ocean, still retain jurisdiction to enforce claims for repairs, but only by proceedings according to the course of the common law, I reply that, while it remained still a landlocked lake with no connection with the ocean, the State of New York, having full jurisdiction, could, as we have seen, resort to any proceeding it saw fit for the enforcement of claims for repairs. It has full control over its own procedure and may change and alter it as it sees fit. Can it be that, having such power before the waters are connected with the ocean, it loses that power by the act of connecting the waters with the ocean, and is deprived of its hitherto unquestioned control over the remedies it chooses to provide? But it is said that given the fact that the admiralty j misdiction of the Federal courts extends to all navigable waters of the United States, and that such jurisdiction is exclusive, it follows that the moment any navigable waters are connected with the ocean the jurisdiction of the Federal courts over those waters becomes exclusive. In this case we touch upon the difference between contracts and torts. As said in The Belfast, 7 Wall. 624, 637: Principal subjects of admiralty jurisdiction are maritime contracts and maritime torts, including captures jure belli, and seizures on water for municipal and revenue forfeitures. (1.) Contracts, claims, or service, purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty. (2.) Torts or injuries committed on navigable waters, of a civi nature, are also cognizable in the admiralty courts. urisdiction in the former case depends upon the nature localit urP°ses defendant’s predecessor in title. A later mayor brought ejectment for this part. Sembl WaS nOt in the Plaintiff- and WaS ^at ft had power to convey the land e ee executed was sufficient so far as the question was open. he case is stated in the opinion of the court. nio’ 4.^.a^e<^ and J/r. Frederick A. Williams for plaintiff m error. 56 OCTOBER TERM, 1903. Opinion of the Court. 191U. 8. Mr. Willard Teller and Mr. Clayton C. Dorsey for defendants in error. Mr. Justice Holmes delivered the opinion of the court. This is an action of ejectment brought in the Colorado state court and removed to the Circuit Court of the United States. The case was tried in the latter court and a verdict and judgment were ordered for the plaintiff on the undisputed facts. On exceptions a judgment was ordered for the defendants by the Circuit Court of Appeals, 106 Fed. Rep. 452, see 79 Fed. Rep. 577, and the case was brought here by writ of error. The defendants claim title under a sale by the city of Denver and a deed executed by the mayor of the city. The plaintiff contends that the act of Congress under which the original patent was granted made the land inalienable, that the patent did not give the city a legal title, that the city had no power to convey, that the alleged authority of the city to the mayor to execute the deed was insufficient, and that the deed did not follow the resolution upon which the defendants rely. The act of Congress, approved May 21, 1872, c. 187,17 Stat 140, was entitled “ An act to enable the city of Denver to purchase certain lands in Colorado for a cemetery,” and it authorized the mayor of the city to enter, at the minimum price, certain lands, including the land in question, “to be held and used for a burial place for said city and vicinity.” The price was paid and a patent was issued purporting to convey to the “mayor in trust for said city and to his successors’ the sai land, not referring to the above act otherwise than by the words “in conformity with the several acts of Congress in sue case made and provided.” This patent was confirmed by an act of Congress approved January 25, 1890, c. 3, 26 Stat. , and the city of Denver was authorized “to vacate the use o the said land, dr any portion thereof, as a cemetery, an o appropriate and use the same or any part thereof for a pu park or grounds.” WRIGHT v. MORGAN. 57 191U. S. Opinion of the Court. After the passage of the first act, Joseph P. Macheboeuf, the Roman Catholic bishop of Denver, made a petition to the mayor and common council of Denver, representing that in 1863 he had purchased a part of the said lands, and that the same had been and was used as a burial place, and asking for a conveyance to him and his successors in office. A committee recommended that the petition be granted, and the council voted to adopt the report. On February 6, 1874, for a stipulated price which was received, a deed was executed by the mayor in the name of the city to Macheboeuf, described as bishop of Colorado, habendum to him, his heirs and assigns, “for the purposes aforesaid.” The land in controversy is a part of the land embraced in this deed, and, never having been used for burial, was conveyed by Macheboeuf to the defendants’ predecessor in title. On the foregoing facts it is sufficiently evident that the plaintiff has no title, and that would be enough to show that the judgment must be affirmed. The action is brought by the present mayor in his own name, not by the city. Furthermore, it also is plain enough that the city did get a title by the patent. The first act of Congress contemplated a purchase by the city, and the patent was to the mayor in trust for the city. This trust was executed by the statute of uses. The second act recites that the city has received and paid for a patent. It is argued that the words in the first act, “to be held and used for a burial place for said city and vicinity,” show a trust more extensive than the city, and therefore prevent the execution of the use. But these words are not m the patent, and if they had any effect only would impose a trust upon the city, they would not prevent the operation o the habendum in the deed. It is suggested that the answer a mits that the title was in the mayor until the conveyance y the city. But this is a mere conclusion of law. The answer sets up the facts in full, and it is apparent that no point was made on the pleadings below. On the contrary, it is said, an is not denied, that after a decision to that effect on de 58 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. murrer, 79 Fed. Rep. 577, it was admitted by the plaintiff that the legal title vested in the city by virtue of the patent of the United States. If the legal title was in the city it was an absolute title. In view of the extreme unwillingness of courts to admit the existence of a common law condition, even when the word condition is used, it needs no argument to show that there was no condition or limitation here. Stuart v. Easton, 170 U. S. 383. Little more needs to be said to show that the act of Congress did not make the land inalienable at common law. We need not consider whether the act could have that effect upon land within a State, when the conveyance was absolute and was made to a citizen or instrumentality of the State; we express no opinion upon the point. It is enough that it did not purport so to restrict the ordinary incidents of title. We should require the clearest expression of such an unusual restriction before we should admit that it was imposed, especially in an ordinary sale for cash. Here the act probably meant no more than to explain the motive for a sale at the minimum price. Board of Commissioners of Mahoning County v. Young, 59 Fed. Rep. 96. The ratified patent said nothing of any restriction or even any trust beyond the one executed in the city. Of course, however, no question of trust is before us. If the city had found it more convenient to convey the land to a cemetery corporation, there is nothing in the statutes or patent which would have prevented it The conveyance to the bishop was essentially similar to the case supposed, except in technical form, and probably was made on grounds of justice that very possibly were considered by Congress. The Catholics had spent money on the land and had used it for a burial ground long before Congress passed the act. If the city got a fee simple absolute, as in our opinion it did, we are not called upon to spend time on the question of its power under the laws of the State or of its action in the premises. These questions were not much argued here. The city had a general power of alienation by charter, and we are not WRIGHT v. MORGAN. 59 191 U. S. Opinion of the Court. prepared to say that the power did not extend to burying grounds. The vote to adopt the report was a sufficient vote to sell, and the question is not open whether there was any informality in the execution of the sale by the mayor rather than by a special commissioner. The supposed error would be corrected by equity if necessary. After the price had been received by the city and the land had been occupied by purchasers for nearly twenty years, the city would not now be allowed to profit by a merely technical mistake. The objection that the deed did not follow the authority is unfounded. Giving Macheboeuf a wrong title had no effect on the grant, and the habendum properly was to him and his heirs, notwithstanding the petition and the intent that the title should follow the office and not the blood of the grantee. Apart from statute the law does not recognize the bishop as a corporation sole, and therefore the land could not be limited to him and his successors. At all events, it was sufficient to give the bishop a fee by the proper words and to leave the official succession to the title to be effected by other means than the limitation in the deed. The petition of Macheboeuf no doubt contemplated that he would take the land for the benefit of his church, and no doubt he did so in fact. But there was nothing which required this intention to be expressed in the deed.—The plaintiff is not concerned with the extent of Machebceuf’s power to convey to secular uses. Judgment of the Circuit Court of Appeals affirmed. 60 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. ROSS v. AGUIRRE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 19. Argued October 14,1903.—Decided November 2,1903. Under the decisions of the highest court of California, an act of legis-ture entitled "An Act to amend sections 204,205,206 and 208 oftheCode of Civil Procedure ” is not void as contrary to the provisions of the Constitution of the State providing that every act of the legislature shall embrace but one subject which shall be expressed in its title. One convicted after indictment by a grand jury impaneled under the provisions of Code as so amended is not deprived of his liberty without due process of law in violation of the Fourteenth Amendment. Appeal from an order denying a writ of habeas corpus. The respondent is the warden of the state prison of the State of California at San Quentin, and holds the petitioner in custody under a judgment of the Superior Court of Sari Luis Obispo County, State of California, in which court he had been indicted, tried and found guilty of the crime of murder and sentenced to be hanged. The petition under review is the second presented to t e Circuit Court. The first was denied on the ground “that application for relief on behalf of said Burt Ross should first made to the courts of the State.” Thereupon a petition was presented to the Supreme Court of the State of California an denied. A writ of error from this court was also deme y the Chief Justice of the Supreme Court of the State, ground of the petition is that the grand jury by w c indictment was found was not selected in accordance vn law, and that therefore his conviction, sentence and com ment do not constitute due process of law, and that e is prived of his liberty in violation of the Fourteenth m ment of the Constitution of the United States. ROSS v. AGUIRRE. 61 191 U. S. Opinion of the 'Court. Mr. W. C. Van Fleet and Mr. W. B. Treadwell for appellant. Mr. U. 8. Webb and Mr. C. N. Post for appellee. Mr. Justice McKenna, after making the foregoing statement of facts, delivered the opinion of the court. By the constitution of the State of California no person can be held for a crime unless on information, after examination and committment by a magistrate, or an indictment by a grand jury. Sec. 8, Constitution of 1879. By sections 204 to 211, inclusive, of the Code of Civil Procedure of the State, (prior to the amendments hereinafter stated,) it was made the duty of each of the Superior Courts of the State to fix by order, the number of grand jurors and trial jurors required for the transaction of business and the trial of causes during the ensuing year; and it was made the duty of the boards of supervisors of the counties, upon the making of said order, to select from the last preceding assessment roll a list of persons competent and suitable to serve as grand jurors, and also a list of persons to serve as trial jurors, and certify said lists, and place the same with the county clerk, who, upon receiving them, was required to file them in his office, “and write down the names contained thereon, on separate pieces of paper, of the same size and appearance, and fold each piece so as to conceal the name thereon,” and “deposit the pieces of paper aving on them the names of the persons selected to serve as grand jurors in a box to be called the ‘grand jury box,’ and t ose haying on them the names of persons selected to serve as trial jurors in a box to be called the ‘trial jury box.’” rand jurors and trial jurors were required to be drawn respectively from these boxes, by lot, by the clerk in the presence and by order of the court. Sections 241 and 242, Code oi Civil Procedure. u ^arc^ 3, 1893, the legislature passed an act entitled n act to amend sections 204, 205, 206 and 208 of the Code 62 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. of Civil Procedure.” Stats. Cal. 1893, p. 297. By this act it is provided that the Superior Court, after making the order stating the number of grand jurors which in its opinion would be required for the business of the court, “ shall select and list the grand jurors required by said order to serve as grand jurors in said Superior Court during the ensuing year.” It was left the duty of the board of supervisors to select a list of trial jurors. The grand jury which indicted the petitioner was selected under this act. Illegally selected, it is contended, because “it is the law of the State of California that an act with only such a title” is void under the constitution of the State, and therefore the sections of the Code of Civil Procedure, the substance of which we have given above, remained the law of the State. For this contention petitioner relies on Lewis v. Dunne, 134 California, 291. The title of the act passed upon in that case is as follows: “An act to revise the Code of Civil Procedure of the State of California by amending certain sections, repealing others and adding certain new sections.” The act was held void under that section of the constitution of the State which provides that “ every act shall embrace but one subject, which subject shall be expressed in its title. . . . No law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be reenacted and published at length as revised or amended.” The decision was rendered upon a petition for mandamus to a judge of t e Superior Court of the city and county of San Francisco, but what action to command does not appear. The petitioner, however, contended that both the title and body of the act showed that the act was intended to be, and was, a revision o the code, and therefore invalid, because the law revised was not “ reenacted and published at length as revised. e court said it could see no sufficient answer to the contention. That contention is not made in the case at bar. The ac^° 1893 reenacted and published at length the sections amen e and is confined to their amendment. But the act passed upon ROSS v. AGUIRRE. 63 191 U. S. Opinion of the Court. in Lewis v. Dunne, was also held void because its title did not express its subject—nor, indeed, any subject. “It is apparent,” the court said, “that the language of the title of the act in question, in and of itself, expresses no subject whatever.” The words “in and of itself” were used to distinguish an expression of the subject by “reference,” and the reference, it was said, was really not to the title of any former act; it was merely to “the Code of Civil Procedure of the State of California.” It was asked “Now, what is the Code of Civil Procedure? It is merely a name given to a large part of the general laws of the State. The part of the great body of our laws which is to be found under that name is not confined to any particular subject or subjects, but includes substantive law, criminal law and legislation that might be properly classed under any category whatever, as well as ‘civil procedure.’” The reference, therefore, was not to one subject but to many, and the revising act dealt, the court said, “with a vast variety of subjects,” many of which were “totally distinct from each other;” and many of them had “no relation to civil procedure, while others were partly procedure and partly substantive law —declaration as to personal and property rights.” These observations are certainly not applicable to the act of 1893. That amends sections 204, 205, 206 and 208 by designating them, and reenacts and publishes them at length. It has but one purpose and contains but one subject. It amends particular sections; it does not revise a whole code. In People v. Parvin, 74 California, 549, an act was considered with the following title: “ An act to amend section 3481 of the Political Code.” The case was not unqualifiedly approved in ■kewis v. Dunne. It was not, however, overruled, and it seems to be an irresistible conclusion from the action of the Supreme ourt of the State in denying the application of petitioner, at act of 1893 was not ruled by Lewis v. Dunne and was not void under the constitution of the State. We accept the conclusion. It has support, if it need any, in In re Beach, on Delten, Auditor of San Joaguin County, 139 California, 64 OCTOBER TERM, 1903. Counsel for Parties. 191 U. S. 462, decided by the Supreme Court of California, June 26,1903, where it was held (we quote from the syllabus) that “the title of an amendatory act which gives the title of the original act in full and the number of the section in its amended form is sufficient.” People v. Parvin, supra, was cited, and it was observed that that case was discussed in Lewis v. Dunne, “and distinguished but not overruled.” And it was also observed that the Parvin case had been approved in Français v. Somps, 92 California, 503. Order affirmed. Mandate forthwith. CHOCTAW, OKLAHOMA AND GULF R. R. CO. v. McDADE. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 26. Submitted October 14,1903.-Decided November 2,1903. It is the duty of a railroad company to use due care to provide a reason ably safe place and safe appliances for the use of workmen in its em ploy. It is obliged to use the same degree of care to provide proper y constructed roadbed, structures and track to be used in the opera ion of the road. /j-rcnnce The servant has a right to assume that the master has used due i ig in providing suitable appliances for the operation of his business does not assume the risk of the employer’s negligence in making provision. „ . j. em- While an employe who continues without objection in his m ploy with knowledge of a defective apparatus assumes t e aza dent to the situation, unless the evidence plainly shows t e ass of the risk, it is a question properly left to the jury. The facts appear in the opinion of the court. Mr. J. W. McLoud for plaintiff in error. Mr. G. T. Fitzhugh for defendant in error. CHOCTAW, OKLAHOMA &c. R. R. CO. v. McDADE. 65 191 U. S. Opinion of the Court. Mr. Justice Day delivered the opinion of the court. This was an action to recover for the death, by wrongful act, of John I. McDade, an employe of the Choctaw, Oklahoma and Gulf Railroad Company. The plaintiff recovered a judgment in the Circuit Court, which was affirmed in the Court of Appeals. 112 Fed. Rep. 888. There was evidence tending to show that McDade, a brake-man in the employ of the company, was killed on the night of August 19, 1900, while engaged in the discharge of his duties as head brakeman on a car in one of the company’s trains. McDade was at his post of duty and when last seen was transmitting a signal from the conductor to the engineer to run past the station of Goodwin, Arkansas, which the train was then approaching. The train passed Goodwin at a rate of from twenty to twenty-five miles an hour. At Goodwin there was a water tank, having attached thereto an iron spout, which, when not in use, hung at an angle from the side of the tank. Shortly after passing Goodwin, McDade was missed from the train, and upon search being instituted, his lantern was found near the place on the car where he was at the time of giving the signal. His body was found at a distance of about six hundred and seventy-five feet beyond the Goodwin tank. There was also testimony tending to show, from the ocation of the waterspout and the injuries upon the head and person of McDade, that he was killed as a result of being struck y the overhanging spout. The car upon which McDade was engaged at the time of the injury was a furniture car, wider Th* h^er ^an averaSe car, and of such size as to make y dangerous to be on top of it at the place it was necessary to be when giving signals, in view of the fact that the pou c eared the car by less than the height of a man above e car when in position to perform the duties required of him. ere was no eyewitness as to the exact manner of the in-ry to McDade, and it is urged that the court below should ave ta en the case from the jury because of the lack of testi-vol. cxci—5 66 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. mony upon this point. It was left to the jury under proper instructions to find whether McDade came to his death in the manner stated in the declaration, and the court distinctly charged that, unless »satisfied of this, there could be no verdict against the railroad company. While the evidence was circumstantial, it was ample, in our opinion, to warrant the submission of this question to the jury under the instructions given. Furniture cars, like the one on which McDade was riding, were received and transported over this road. There is testimony tending to show that a proper construction of the tank and appliances required the spout to hang vertically when not in use, and other testimony to the effect that when hung in this manner it would be difficult, if not impossible, for the fireman to pull down the spout in taking water, and that to hang it at an angle is, at least, a more convenient method of adjustment. Be this as it may, the testimony makes it clear that in the proper construction of this appliance there is no necessity of bringing it so near to the car as to endanger brakemen working thereon. Whether hung at an angle or not, it can be so constructed as to leave such space between it and the top of the car as to make it entirely safe for brakemen in passing. The testimony makes it equally clear that when on the furniture car, McDade, sitting at his post, would be likely to be struck by the spout in passing. It is undoubtedly true that many duties required of employes in the transaction of the business to be carried on by a railroad company are necessarily attended with danger, and can only be prosecuted by means which are hazardous and dangerous to those who see fit to enter into such employment. Where no necessity exists, as in the present case, for the use of dangerous appliances, an where it is a matter requiring only due skill and care to ma e the appliances safe, there is no reason why an employe shou be subjected to dangers wholly unnecessary to the proper operation of the business of the employer. Kelleher, Admr., v. Milwaukee & Northern R. R. Co., 80 Wisconsin, 584, George & Pacific Railway Co, v. Davis, 92 Alabama, 300; 1 Shearman CHOCTAW, OKLAHOMA &c. R. R. CO. v. McDADE. 67 191 U. S. Opinion of the Court. & Redfield on Negligence, 5th edition, section 201, and cases cited. We agree with the Circuit Court of Appeals in affirming the instructions upon this subject given by Judge Hammond to the jury, in which he said:“ It is so simple a task, one so devoid of all exigencies of expense, necessity or convenience, so free of any consideration of skill, except that of the foot rule, and so entirely destitute of any element of choice or selection, that not to make such a construction safe for the brakeman on the trains is a conviction of negligence.” It is the duty of a railroad company to use due care to provide a reasonably safe place and safe appliances for the use of workmen in its employ. It is obliged to use ordinary care to provide properly constructed roadbed, structures and track to be used in the operation of the road. Union Pacific Ry. Co. v. O’Brien, 161 U. 8. 451. The spout might readily have been so constructed and hung as to be safe. As it was maintained it was a constant menace to the lives and limbs of employés whose duties required them, by night and day, to pass the structure. It is a case where the dangerous structure is not justified by the necessity of the situation, and we agree with the judgments in the courts below that its maintenance under the circumstances was negligence upon the part of the railroad company. The court, having left to the jury to find the fact as to whether McDade was killed by the obstruction, did not err in giving instruction that the negligent manner in which e waterspout was maintained was, of itself, a conviction of negligence. The court left to the jury the question of the assumption of upon the part of McDade with instructions which did not recovery he either knew of the danger of collision . ,e wa^ersPout> or> by the observance of ordinary care sum ought to have known of it. The servant as- ter fiS + 6 danSers incident to the business of the mas-100 U ^a^er s negligence. Hough v. Railway Co., ' o. 213; Wabash Ry. Co. v. McDaniels, 107 U. 8. 454; 68 OCTOBER TERM, 1903. Opinion of the Court. 191 U.S. N. P. R. R. Co. v. Herbert, 116 U. S. 642; N. P. R. R. Co. v. Babcock, 154 U. S. 190. The question of assumption of risk is quite apart from that of contributory negligence. The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer’s negligence in performing such duties. The employé is not obliged to pass judgment upon the employer’s methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. This rule is subject to the exception that where a defect is known to the employé, or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus in the face of knowledge and without objection, without assuming the hazard incident to such a situation. In other words, if he knows of a defect, or it is so plainly observable that he may be presumed to know of it, and continues in the master’s employ without objection, he is taken to have made his election to continue in the employ of the master, notwithstanding the defect, and. in such case cannot recover. The charge of the court upon the assumption of risk was more favorable to the plaintiff in error than the law required, as it exonerated the railroad company from fault ’, in the exercise of ordinary care, McDade might have dis covered the danger. Upon this question the true test is not in the exercise of care to discover dangers, but whether t e defect is known or plainly observable by the employé. & Pacific Ry. Co. v. Archibald, 170 U. S. 665. There was testimony tending to show that McDade ha over the part of the road where the Goodwin tank was situa e only a few times, and that part of the trips were made in night season, and also that the furniture cars were of unus^_ height as compared with those generally used in the tion of the business of the company.. Neither the assump of risk nor the contributory negligence of the plainti e was so plainly evident as to require the jury to be instruc CHOCTAW, OKLAHOMA &c. R. R. CO. v. McDADE. 69 191 ü. S. Opinion of the Court. to find against the plaintiff, but, under the facts disclosed, these matters were properly left to the determination of the jury. Numerous exceptions were taken to the refusal of the court to charge in certain respects, but as the charge given was proper and pertinent to the facts and sufficiently comprehensive, it was not error to refuse such requests. The assignments of error as to the admission of testimony were nearly all based upon exceptions general in their character, and under the well-settled rule not reviewable here. Burton n. Driggs, 20 Wall. 125; Noonan v. Caledonia Mining Co., 121 U. S. 393, 398; District of Columbia v. Woodbury, 136 U. S. 450, 462. The one of most gravity is as to the admission of testimony to show that after the accident the waterspout at Goodwin was reconstructed so as to be placed at a point farther removed from passing trains. Evidence having been introduced by the railroad company to show by measurements that the waterspout did not constitute danger to brakemen on passing trains, the court permitted plaintiff below to show that changes had been made which might have an effect upon the subsequent measurements offered in evidence. The jury were told that nothing could be inferred against the defendant company by reason of the fact that after the accident such reconstruction of the spout was made, and that such change had no other bearing upon the issues of the case than to enable the jury to ascertain the value of the measurements offered in evidence. We find no error in the judgment of the Circuit Court of Appeals, and it is Affirmed. 70 OCTOBER TERM, 1903. Statement of the Case. 191 U. 8, HUBBERT v. CAMPBELLSVILLE LUMBER CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 31. Argued October 20, 1903.—Decided November 9,1903. A statute authorizing an issue of municipal bonds was amended by an act increasing the amount authorized and also giving special remedies in addition to, and not in lieu of, those given by the original act, but directing that the bonds “shall on their face stipulate ” that the holders are entitled to the remedies contained in the amending as well as in the original act. The bonds were issued after the amending act was passed, and contained a statement that they were issued in pursuance of the original act and only for the amount authorized thereby. They did not contain any reference to the amending act or stipulation that the holders were entitled to the remedies given thereby. Held, that in the absence of such stipulation the holders were not entitled to the remedies given only by the amending act. On March 18,1878, the general assembly of Kentucky passed an act, vol. 1, p. 554, c. 483, authorizing the county of Taylor to compromise its debts and issue new bonds of the county not exceeding in amount $125,000, and also authorizing the Circuit Court, in case of a judgment on any of such bonds and a refusal by the county within thirty days to levy a tax sufficient to pay it, to make an order based on the last previous assessment levying a tax and appointing a collector. On February 27, 1882, an amendatory act was passed increasing the issuable amount to $150,000, providing that any judgment rendered thereon should constitute a lien on all the real an personal property in the county subject to taxation, and also that, if the court rendering the judgment should be of opinion that such serious obstruction was likely to be offered as woul materially delay the enforcement of the judgment, it shoul refer the matter to a commissioner with instructions to ascer tain and report the amount proportionally necessary for the holders or owners of any such property to pay in order to raise HUBBERT v. CAMPBELLSVILLE LUMBER CO. 71 191 U. S. Argument for Petitioner. promptly a sum sufficient to pay the judgment. Personal judgments were authorized against the parties found to be the owners of property within the limits of the county, to be enforced by executions as other personal judgments. Section 10, vol. 1, c. 306, p. 558, reads as follows: “Sec. 10. The bonds to be issued under the act to which this is an amendment shall, on their face, stipulate that the holders of any of them, or any coupon thereof, shall be entitled to the remedies for the collection of the same herein, and in the act to which this is an amendment, provided for.” Bonds were issued by the county, some of which passed into the possession of the plaintiff, who brought suit and obtained judgment against the county in the Circuit Court of the United States for the District of Kentucky. The bonds did not contain the stipulation referred to in section 10, but did contain the following recital: “This is one of an issue amounting in all to $125,000, authorized by an act of the general assembly of the Commonwealth of Kentucky, approved March 18, 1878.” Each bond also bore the following endorsement: Issued by authority of an act of the general assembly of the State of Kentucky, approved March 18, 1878.” On application for further relief the Circuit Court awarded to the plaintiff the benefit of the special provisions of the amendatory act of 1882, but the Circuit Court of Appeals held that he was not entitled to them. 50 C. C. A. 435; 112 Fed. ep. 718. Thereupon the case was brought here on certiorari. 186 U.S. 485. W. 0. Harris for petitioner: tatutes affording substantially similar remedies for en-rcement of municipal bonds have been sustained in Stansell Wall^66 B°ard’ 18 Fed. Rep. 846; Supervisors v. Rogers, 1 f a ' more recent cases involving local assessments s reets and sewers it is held that notice by publication is ue process of law. Lent v. Tillson, 140 U. S. 316; Paulsen v. 72 OCTOBER TERM, 1903. Argument for Petitioner. 191 U. S. Portland, 149 U. S. 30. In the case at bar it is not disputed that the three weeks’ notice by publication, required by section 5 of the amended act, was properly given. Section 10 of the act was only intended to make the bonds attractive to purchasers and was directory and not mandatory. French v. Edwards, 13 Wall. 506; Lyon v. Alley, 130 U. S. 185; Erhardt v. Schroeder, 155 U. S. 129. Where the ordinary remedies have proved ineffectual to coerce payment of a former issue of bonds the remedy given by this statute was just and as inexpensive as could be devised. There are precedents for this course. Supervisors v. Rogers, 7 Wall. 175; Thompson v. Allen County, 115 U. S. 559; Stansell v. Levee Board, 13 Fed. Rep. 846. As to the question of repeal it is sufficient to say that the remedy afforded by the act was a part of the contract and was beyond the reach of repeal. Seibert v. Lewis, 122 IT. S. 284; Seibert v. United States, 129 U. S. 192. Oshkosh v. Oshkosh, 187 IT. S. 437, distinguished. And see O’ Mahoney v. Bullock, 97 Kentucky, 774; Pearce n. Mason County, 99 Kentucky, 364; Covington v. Highlands, 24 Ky. Law Rep. 433. Sections 1839 and 1840, Kentucky statutes do not work a repeal when sections 465 and 907 are considered. The validity of the tax cannot be affected by the name of the writ or paper under which the officer acts. Turpin v. Lemon, 187 U. S. 51. As to whether plaintiff was real owner of bonds judgments against corporations are conclusive upon their stockholders. Morawetz on Corporations, sec. 619, An gell & Ames, sec. 629. The act of 1882 was not contrary to the Kentucky constitution distributing the powers of the gov ernment. Pennington v. Woolfolk 79 Kentucky, 16, distin guished. The act conferring power upon the county court of assessing delinquent taxes was proper although the cour could levy assessments without such an act. Thompson v. Allen County, 115 U. S. 559; McLean County v. Brent, Kentucky, 254; Baldwin v. Hewitt, 88 Kentucky, 673, a Rapids Co. v. Trustees, 102 Kentucky, 556. HUBBERT v. CAMPBELLSVILLE LUMBER CO. 73 191 U. S. Argument for Respondent. The debt of the county became the debt of the individual citizens. Supervisors v. Rogers, 7 Wall. 175; Stansell v. Levee Board, 13 Fed. Rep. 851; Eames v. Savage, 77 Maine, 212; S. C., 52 Am. Rep. 751; Morawetz, secs. 618, 619; Angell & Ames, sec. 629; United States v. Johnson, 6 Wall. 6. Mr. Ernest Macpherson for respondent: I. Respondent does not oppose the payment by the county of the bonds, nor imposition of just assessments. It objects to proceedings by the county court distributing the assessment unjustly and without respondent being heard. The remedy given in the act is statutory only and a court acting thereunder is limited in its powers by the statute. E. T. Va. & Ga. v. Southern Tel. Co., 112 U. S. 306. A tax not assessed as provided by law cannot be enforced. Cooley on Taxation, 2d ed. 429; East Tenn. &c. v. Morristown, 35 S. W. 771; Clegg n. State, 42 Texas, 609; People v. Cent. Pac. R- R. Co., 83 California, 398. II. The assessments were made in violation of the uniformity and equality provisions of the Kentucky constitution. Const, sec. 171. Holzhauer v. City of Newport, 15 Ky. Law. Rep. 188. A levy in excess of the proportionate amount necessary is unlawful. Porter v. Rockford &c. R. R., 76 Illinois, 564; Commonwealth v. Hamilton Mfg. Co., 12 Allen (Massachusetts), 300. The excessive levies were not by error but by design to compel a few to pay the whole debt. A statute is mandatory which limits the amount of taxes. Cooley on Taxation, 2d ed. 429; Commonwealth v. Savings Bank, 5 Allen, 428; Huse v. Merriam, 2 Greenl. 375; Case v. Dean, 16 Michigan, 12; C. N. • & T. R. R, Co. v. Commonwealth, 81 Kentucky, 509. ■ ,^ue allowance” for delinquencies does not authorize imposition of entire debt on a few taxpayers. Ryerson v. Roorman, 8 N. J. Eq. 705; Rees v. Watertown, 19 Wall. 119. • The published notice was insufficient. Judgment given °n publication can never exceed the relief demanded. Vorce v. age, 44 N. W. Rep. 452. Against a person not named, it V4 OCTOBER TERM, 1903. Argument for Respondent. 191U. S. is a nullity. Hansen v. Klicha, 78 Ill. App. 177. Notice could easily have been given personally. Lot Two n. Swetland, 4 Greene (Iowa), 465; Lentv. Tillson, 140 U. S. 316, 326; Padsen n. City of Portland, 149 U. S. 30, 40. Demand was essential and could not be omitted. United States v. Pacific R. Co., 4 Dillon, 71; Cones v. Wilson, 14 Indiana, 465; Thatcher v. Powell, 6 Wheat. 126. V. Where an affirmative statute directs a thing to be done in a new manner it cannot be done in any other manner. Cooh v. Kelly, 12 Abb. Pr. 35; Commissioners v. Gains, 3 Brew. 396. VI. Purchasers of municipal bonds are bound by the statute therein recited and may not invoke any other statute without bringing themselves within its terms. McClure v. Town of Oxford, 94U.S. 429; Crow v. Oxford, 119 U. S. 215; Gibson v. Dayton, 123 U. S. 59. VII. The act of 1882 had been repealed before this action was commenced. Const, sec. 59; secs. 1839, 1840, Kentucky Statutes; sec. 907, Statutes, does not apply. VIII. The Civil Code of Kentucky, secs. 474 to 477, gives petitioner a complete remedy by mandamus. Elliott v. Kitchen, 14 Bush, 289; Thompson v. Allen County, 115 U. S. 550; League v. Texas, 184 U. S. 156; Seibert v. Lewis, 122 U. S. 192. IX. In absence of actual service of process the personal judgment is void. Graham v.' Sublett, 6 J. J. Marshall, 45, Harris v. Adams, 2 Duvall, 141 ; Berry v. Berry, 6 Bush, 594, Woodside v. Dowell, 13 Ky. Law Rep. 141. X. Respondent had no right to sue not being owner of cou pons but simply a transferee for purposes of obtaining juris diction. County of Lake v. Dudley, ITS U. S. 243. XI. The act of 1882 violated the constitution of Kentucky 97 98* in giving legislative power to the courts. Const, secs. ¿6 ’ Pennington v. Woolfolk, 79 Kentucky, 16; McLean County v-Depont Bank, 81 Kentucky, 254; Slaughter v. Louisville, Kentucky,. 121 ; Cooley on Taxation, 238 ; Cin. &c. R- • v‘ Commonwealth, 81 Kentucky, 497 ; Baldwin v. Shine, 84 en HUBBERT v. CAMPBELLSVILLE LUMBER CO. 75 191 U. S. Opinion of the Court. tucky, 514; Interstate C. C. v. Brimson, 154 U. S. 485. The highest court of the State decides whether the method pursued in tax assessments is legal. Bailey v. Magwire, 22 Wall. 215. The act of 1882 was void under the due process clause of the Fourteenth Amendment and therefore could not be sustained by any state decisions. Mex. Cent. R. R. Co. v. Pinkey, 149 U. S. 194. Appearance or service is necessary to confer jurisdiction. Kendall v. United States, 12 Peters, 524; Harris v. Hardemon, 14 How. 334. XII. The respondent’s motion to set aside the judgment was proper procedure. United States v. Wallace, 46 Fed. Rep. 569. Mr. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. Conceding, without deciding, that both acts of the general assembly of Kentucky were in all respects constitutional and valid, and that the proceedings of the Circuit Court were in strict compliance therewith, we notice only the single question of the effect of the omission from the bonds of the stipulation required by section 10, as well as of any reference to the amendatory act, and are of opinion that the omission is fatal to the special relief provided for in that act. There is nothing in the nature, of things nor in the terms of the two acts which prevents the parties, the county and the recipient of the bonds, from contracting for solely the remedies provided in the original act. The latter act, provided remedies not in lieu of but in addition to those given by the former. ere is nothing on the face of the bonds to indicate that eit er of the parties had in contemplation the provisions of e amendatory act. On the contrary, the bonds in terms s ate that they are of an issue amounting to $125,000, au-orized by the original act. As the amendatory act au-orized the issue of $150,000, and as no reference is made t at act, the language of the bond plainly excludes it as 76 OCTOBER TERM, 1903. Opinion of the Court. 191U. S. the basis of authority, and therefore as plainly implies that the remedies by that act were not contracted for by the county. We need not stop to inquire what would be the effect of a recital on the face of the bonds that they were issued under the authority of the amendatory act, or whether such recital would obviate the necessity of complying with the provisions of section 10, for there is no reference to such act, and the bonds on their face do not purport to be issued under its authority. So that the question is whether the plaintiff, in the absence of any such stipulation as is required by section 10, without any reference in the bonds to the amendatory act, and when they purport to be issued under the authority of the original act, can avail himself of the remedies not provided for by the original and only granted in the amendatory act. Much is said in the opinion of the Court of Appeals as well as in the briefs of counsel as to the difference between a directory and a mandatory provision, the plaintiff claiming that section 10 is simply directory, while the defendant insists that it is mandatory. In that opinion these authorities are cited. “‘By directory provision,’ says Judge Cooley, ‘is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot effectually e exercised without observing them.’ Cooley’s Constitutiona Limitations, star page 74. “Lord Penzance, in Howard v. Bodington, L. R. 2 P. 211, after commenting on the difficulty of gathering any rue from the cases, said: ‘I believe, as far as any rule is concerne, you cannot safely go further than that in each case you mu look to the subject-matter; consider the importance 0 provision that has been disregarded, and the relation o provision to the general object intended to be secure Y act, and upon a review of the case in that aspect decide w e the matter is what is called imperative or directory. Without attempting to state any general rule, if in ee HUBBERT v. CAMPBELLSVILLE LUMBER CO. 77 191 U. S. Opinion of the Court. such exists, for distinguishing between a directory and a mandatory provision, it is sufficient to say that when a statute provides an extraordinary remedy to the holder of bonds containing an express stipulation that he “shall be entitled” to that remedy, it should not be adjudged that he is also entitled to it in the absence of such stipulation, for it is a reasonable presumption that if the county in issuing the bonds intended to contract for such extraordinary remedy it would have complied with the express provisions of the statute and incorporated the stipulation into the bonds. That the authority in this amendatory act to proceed directly against the several owners of property in the county is not an ordinary remedy for the collection of bonds is true of the State of Kentucky and generally of the States of the Union. Indeed, the original act gave something more than the ordinary remedy, and when the amendatory act provides for what it must be conceded is under the circumstances an extraordinary remedy it would seem reasonable to hold that all of the provisions of the statute which grant such remedy should be complied with before it can be considered as contracted for. We are of opinion that the Court of Appeals did not err, and its judgment is Affirmed. Mr. Justice White and Mr. Justice McKenna concur in the result. Mr. Justice Harlan, Mr. Justice Brown and Mr. Justice Peckham dissent. 78 OCTOBER TERM, 1903. Statement of the Case. 191U. S. KINNEY v. COLUMBIA SAVINGS & LOAN ASSOCIATION. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF UTAH. No. 102. Submitted October 13,1903.—Decided November 9, 1903. Petitions and bonds for removal are in the nature of process. Where a petition for removal otherwise sufficient contains a general averment of diverse citizenship with a specific and full averment of defendant’s citizenship and the requisite diverse citizenship of the. plaintiff may also reasonably be inferred from the record, the Circuit Court has power, before any action has been had on the merits in the Federal courts or any steps taken in the state courts after the removal, to permit the petition to be amended by the addition of specific and complete averments of the citizenship of the plaintiff. On August 25, 1899, appellants commenced this suit in the District Court of Salt Lake County, Utah. By it plaintiffs sought an accounting and the cancellation of a deed of trust executed by them to a trustee for the benefit of the defendant. The complaint alleged that “the defendant was and now is a corporation organized and existing under the laws of the State of Colorado.” The deed of trust (copied in the complaint) was executed November 22, 1890, and purports to be “between Antoinette B. Kinney and Clesson S. Kinney, her husband, of the county of Salt Lake and Territory of Utah, parties of the first part; and Clyde J. Eastman” named as trustee. It was executed before a notary public in Salt Lake County. On September 2, 1899, the defendant filed a petition an bond for removal to the Circuit Court of the United States for the District of Utah. That petition alleged: “Your petitioner, The Columbia Savings and Loan Asso ciation, respectfully shows to this honorable court that the matter and amount in dispute in the above-entitled suit ex ceeds, exclusive of interest and costs, the sum or value of two thousand dollars. KINNEY v. COLUMBIA SAVINGS &c. ASSN. 79 191 U. S. Statement of the Case. “That the controversy in said suit is between citizens of different States, and that your petitioner, the defendant in the above-entitled suit, was, at the time of the commencement of the suit, and still is, a resident and a citizen of the city of Denver and State of Colorado.” On November 28, 1899, the plaintiffs filed a motion to remand the cause to the state court on the ground, that “the amount or matter in dispute therein does not, and at the time said cause was removed from the state court, did not, exceed the sum or value of $2,000, exclusive of interest and costs.” On the same day the defendant filed in the Circuit Court an answer and cross complaint, by the latter seeking a foreclosure of the trust deed. In the cross complaint it alleged “ that it is a corporation, organized and existing under the laws of the State of Colorado, and is a citizen of said State, and that complainants herein are citizens and residents of Salt Lake City, State of Utah.” On December 30, 1899, the plaintiffs gave notice of a motion to amend their motion to remand, by adding as a further ground “ that the diverse citizenship of the parties at the time of the commencement of the suit, and at the time of the removal of said cause from the state court, does not appear upon the record.” On January 2,1900, the defendant gave notice of a motion to amend the paragraph heretofore quoted from its cross complaint to read as follows : “ First. That your orator, at the time of the commencement of this suit, was and ever since then, and now is, a corporation organized and existing under and by virtue of the laws of the State of Colorado, and a citizen and resident of the city of Denver and State of .Colorado, and that the said plaintiffs, Antoinette B. Kinney and Clesson S. Kinney, at the time of the commencement of this suit, were, and ever since have been, and still are, citizens of the State of Utah, and resi-ents thereof, residing at the city of Salt Lake in the said State of Utah.” 80 OCTOBER TERM, 1903. Opinion of the Court. 191U. 8. And also notice of a motion to amend the petition for removal by adding this allegation : “ That the plaintiffs, Antoinette B. Kinney and Clesson S. Kinney, and each of them, were, at the time of the commencement of this suit, and still are, citizens and residents of the city of Salt Lake and State of Utah.” On January 6, 1900, the motion to remand was denied, and leave given to amend the petition for removal and the cross complaint. Subsequently the case went to trial in the Circuit Court and a decree was rendered in favor of the defendant for the recovery of $4,003.45 and the foreclosure of the trust deed. From such decree an appeal was allowed to this court upon the single question of jurisdiction. Mr. Charles S. Varian and Mr. Franklin S. Richards for appellants. Mr. J. Norman for appellee. Mr. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. Had the Federal court the power to permit the amendment of the petition for removal ? The suit was removable. Diverse citizenship in fact existed and the amount in controversy was over $2,000. The right to remove existed, but the petition for removal was defective. If it had been sufficient there would have been no need of amendment. The question is whether it was so defective as to be incurable. In ot er words, was the case one in which the court had power to per mit the facts to be stated in order to secure to the defen an the removal to which it had a right ? By section 1 of chap. > 25 Stat. 434, jurisdiction is given to the Circuit Courts o all suits of a civil nature “ where the matter in dispute excee¡s, exclusive of interest and costs, the sum or value of $2, , and “ in which there shall be a controversy between citizen of different States.” By section 2 of the same act any sue suit pending in a state court may be removed into t e i cuit Court of the United States by the defendant or de en an KINNEY v. COLUMBIA SAVINGS &c. ASSN. 81 191 u. S. Opinion of the Court. if non-residents. . The petition for removal, which was duly verified, alleged the existence of just such a suit. True, this court, construing the statute, has held that the difference of citizenship must exist both at the commencement of the suit and at the filing of the petition for removal. Gibson n. Bruce, 108 U. S. 561; Akers v. Akers, 117 U. S. 197; Stevens v. Nichols, 130 U. S. 230. But this does not change the fact that the language of the petition follows that of the statute in stating the existence of that which the statute makes the basis of a right of removal. It is also true that when a record presented to this court fails to show a diversity of citizenship, both when the suit was commenced and when the petition for removal was filed, a reversal has been ordered and the case sent back to the Circuit Court with directions to remand to the state court. Stephens v. Nichols, supra; Crekore v. Ohio dec. Ry. Co., 131 U. S. 240; Jackson v. Allen, 132 U. S. 27; La Confiance Compagnie Anonyme d ’ Assurance v. Hall, 137 U. S. 61; Kellam v. Keith, 144 U. 8. 568; Mattingly v. N. W. Fa. R. R. Co., 158 U. S. 53. In none of these cases does it appear that the defect was noticed in the Circuit Court, and in some not noticed by the parties after the case had reached this court, but action was taken here by virtue of the duty resting on all Federal courts not to entertain jurisdiction, if it does not affirmatively appear. It is also true that in Crghore v. Ohio dec. Ry. Co., supra, t is court was asked to grant leave to the Circuit Court to per-init an amendment of the defective removal proceedings, and e application was denied, but that was after the case had een finally disposed of in the Circuit Court and the insufficiency of the removal papers had been declared by this. Here e application was made shortly after the filing of the removal papers and before any action had been taken in the Circuit and tli amen(^menl was allowed by the Circuit Court, e question now to determine is whether that court had auT^0 such amendment. It is frequently stated that that11 ri.lentS are within the discretion of the trial court, and un ess it appears that the discretion has been abused no error is shown. VOL. cxci—6 82 OCTOBER TERM, 1903. Opinion of the Court. 191 U.S. A petition and bond for removal are in the nature of process. They constitute the process by which the case is transferred from the state to the Federal court. Congress has made ample provision for the amendment of process. Section 948, Rev. Stat., reads: “ Any Circuit or District Court may at any time, in its discretion, and upon such terms as it may deem just, allowan amendment of any process returnable to or before it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues.” And by section 954 it is provided that— “No summons, writ, declaration, return, process, judgment or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed or reversed for any defect or want of form, . . . and may at any time permit either of the parties to amend any defect in the processor pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe.” The question of the power of amendment has been decided by this court in several cases. In Parker v. Overman 18 How. 137, a petition for removal was defective in that it simply alleged residence and not citizenship, but was corrected, over objection, by amendment in the Federal court, and, as said by Mr. Justice Grier (p. 141): “ In the petition to remove this case from the state court, there was not a proper averment as to the citizenship of the plaintiff in error. It alleged that Parker ‘ resided’ in Tennessee and White in Maryland. ‘Citizenship’ and ‘residence are not synonymous terms; but as the record was afterwar s so amended as to show conclusively the citizenship of the par ties, the court below had, and this court has, undoubted juris diction of the case.” In Ca/rson v. Dunham^ 121 IT. S. 421, the application or rc moval was based on two grounds: One, diverse and the other, the existence of a Federal question. legation in respect to the Federal question was genera, a did not state the facts. After the case had been entere in Federal court an answer was filed, stating more fully t e KINNEY v. COLUMBIA SAVINGS &c. ASSN. 83 191 U. S. Opinion of the Court. upon which the existence of a Federal question was based. Mr. Chief Justice Waite, speaking for the court, said, in reference to this answer (p. 427): “ The answer was filed, which, for the purposes of jurisdiction, may fairly be treated as an amendment to the petition for removal, setting forth the facts from which the conclusions there stated were drawn. As an amendment, the answer was germane to the petition, and did no more than set forth in proper form what had before been imperfectly stated.” It is true that this court, on examination of the record, found that no Federal question was even then disclosed, but that does not alter the ruling that an amendment was proper showing the facts upon which the general averment of a Federal question was based. Grace v. American Central Insurance Company, 109 U. S. 278, 285, seems to recognize the right of amendment. The same may be said of Thayer v. Life Association, 112 U. S. 717, 720. Robertson v. Cease, 97 U. S. 646, was a suit originally commenced in the United States Circuit Court. It failed to allege diverse citizenship, but no objection was made in the court below on that ground, and while this court reversed the judgment, it sent the case back with leave to amend the petition in respect to the allegation of citizenship, he case relied upon in the opinion was Horgarts Executor v. 19 Wall. 81, in which the same ruling had been made. ese cases recognize the power of the Circuit Court to permit amendment of pleadings to show diverse citizenship and of removal proceedings where there is a technical defect and ere are averments sufficient to show jurisdiction. e facts here disclosed clearly show a case in which an amen ment was rightfully made. The citizenship of the de-en ant, both at the time the suit was commenced and when stT^ remova^ was filed, was clearly and positively a e . There was a general averment that it was a case of verse citizenship, and, therefore, one in which by the statute wa W.as entfiled to a removal. The trust deed, which fapS * ma^Gr °1? the controversy, showed upon its cut pH k V 6 P^n^s were of Salt Lake County, and was exe-e ore a notary public in that county. The continuance 84 OCTOBER TERM, 1903. Syllabus. 191U. S, of that situation is to be presumed. The first action taken by the plaintiffs after the removal was a motion to remand, based not on account of any defect in the averments of citizenship but simply in respect to the amount in controversy. A month after filing this motion they sought to amend it by including an objection on account of a defect in the allegations of diverse citizenship, and immediately thereafter the defendant moved to amend the petition for removal so as to make it sufficient in that respect. All these things took place before any action had been had in the Federal court on the merits of the case. It may also be noticed that the state court apparently recognized the removal proceedings as sufficient, for it took no further steps in the case, and hence we need not inquire what would have been the effect of any action taken by it in disregard of the removal. Clearly the plaintiffs were not prejudiced. The case was one which the appellee had a right to remove, and nothing had been done to prejudice the rights of the plaintiffs before the petition for removal was perfected. It seems to us, therefore, that this is a case in which the amendment was properly allowed. The decree of the Circuit Court will be Affirmed. UNITED STATES v. DENVER AND RIO GRANDE RAILROAD COMPANY. ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 20. Argued October 14,1903.—Decided November 9,1903. Where, in an action by the United States against a railroa C 139 U’ S* wo; (hozza v. Tiernan, 148 U. S. 662. 96 OCTOBER TERM, 1903. Argument for Respondents. 191 U. S. This court has jurisdiction to grant a writ of prohibition. § 688, Rev. Stat.; Smith v. Whitney, 116 U. S. 173, and cases cited ; In re Rice, 155 IT. S. 402 \ N. Y. <& Porto Rico S. S. Co., Petitioner, 155 IT. S. 523, 531; In re Cooper, 143 U. S. 472, 495 ; Ex parte Morrison, 147 U. S. 114, 126; UrM States n. Jahn, 155 U. S. 109. The Choctaws and Chickasaws agreed to the original treaty, and the petitioner having become a member of the tribe by judgment, these nations are now estopped from denying his tribal membership. A state like a private citizen may be estopped. People n. Stephens, 71N. Y. 527; Lindsay v. Haws, 2 Black (U. 8.), 554; State v. Milk, 11 Fed. Rep. 389; State v. Flint, 89 Michigan, 481; Sanders v. Hart, 57 Texas, 8; State v. Dint, 18 Missouri, 313; Alexander v. State, 56 Georgia, 478 ; Opinion to Governor, 49 Missouri, 216. The original treaty, though a conveyance to the tribe, amounted to the conveyance to the petitioner of his individual share. Jones v. Meehan, 175 U. S. 1. This question having been decided once, Congress cannot establish another court to pass upon the same question. Stephens case, 174 IT. S. 44o, 492. The Constitution never intended that there should be but one Supreme Court. United States v. (J Grady, 89 IT. 8. 641. Mr. George A. Mansfield, with whom Mr. John F. He-Murray and Mr. Mel/ven Cornish were on the brief, for the respondents, Choctaw and Chickasaw Nations : The legislation creating the Dawes Commission and the Citizenship Court is not unconstitutional. Stephens n. Cherokee Nation, 174 IT. S. 445, 483. In dealing with these Indian questions, the action o e Government is regarded as political and executive in its na ture, and any questions that may arise are beyond the sp ere of judicial cognizance. Thomas v. Gay, 169 U. 8. > United States n. Rickert, 188 U. S. 432, and cases there cited; Lone WolfN. Hitchcock, 187 U. S. 558. . If the petitioner is a member of the Chickasaw Nation, is bound by the act of the nation and cannot be heard to que EX PARTE JOINS. 97 191 U. S. Argument for United States. tion the authority of the court. Delaware Indians n. Cherokee Nation, U. S. Court of Claims, 1903. He has an adequate remedy at law under the act, and so the writ cannot be issued. In re Huguley Nfg. Co., 184 U. S. 297. Nr. Solicitor General Hoyt for the United States: I. No case justifying a writ of prohibition is presented. The decree in the test case authorized by the statute was self-executing, has had its full effect by operation of law, and is now entirely beyond the control of the Citizenship Court. Prior to the filing of this petition a certified copy was delivered to the Dawes Commission. Since filing his petition, the petitioner has transferred his case, as provided by the act, from the United States court having control of the same to the Citizenship Court, thus instituting the very proceedings which apparently he seeks by prohibition to restrain. His real object, however, is to have this court review and set aside the decree of the Citizenship Court in the test case. A writ of prohibition cannot be used to undo that which has been fully and finally completed. United, States v. Hoffman, 4 Wall. 158, citing Hall v. Norwood, Siderfin, 166. A writ of prohibition cannot be made to serve the office of a writ of error. Aa? parte Ferry Co.. 104 U. S. 519, 520. II. The writ would obstruct the action of the political department of the Government. The Citizenship Court, like the awes Commission, is a political agency established by Congress in furtherance of its declared purpose of extinguishing e tri al title to lands in the Indian .Territory, with a view 0 e erection of a State or States of the Union embracing uch lands Act of March 3, 1893, 27 Stat. 645; ^erokee Nation, 174 U. S. 445. The power of Congress to cl er uPon an(l guard the tribal property has been de-are y this court to be political and administrative in its Icp and n°t object to be controlled by the courts. Chero-v. Hitchcock, 187 U. S. 294, 308 ; Lone Wolf v. coc , 187 U. S. 558, 567; In re Cooper, 143 U. S. 472. vol. cxci—7 98 OCTOBER TERM, 1903. Argument for United States. 191U. S. III. A prohibition cannot issue from this court “in cases where there is no appellate power given by law, nor any special authority to issue the writ.” Ex parte Gordon, 1 Black, 503, 506; Foster’s Fed. Prac. vol. 2, sec. 362. The “special authority ” of this court to issue writs of prohibition, Rev. Stat. sec. 688, is limited to the District Courts of the United States when sitting as courts of admiralty. Ex parte Christy, 3 How. 293 ; Ex parte Gordon, 1 Black, 503; Er parte Easton, 95 U. S. 68; Ex parte Ins. Co., 118 U. S. 610. No appellate power has been given “ by law ” to this court over the Citizenship Court whose judgments and decrees are final. The Citizenship Court is not a “ constitutional ” but a “legislative ” court, created by Congress in virtue of the general sovereignty of the United States over all territory within its limits, whether occupied by Indian tribes or not. American Ins. Co. v. Canter, 1 Pet. 321; United States v. Kagama, 118 U. S. 380. It is a special tribunal, created for a particular purpose, and will expire by limitation at a certain time. Not being a “ constitutional ” court, in which the judicial power of the United States under the third article of the Constitution may be vested, and, unlike the regular territorial courts, possessing no general law and equity jurisdiction, the question whether this court can issue a writ of prohibition thereto m the exercise of its “inherent general power ” cannot arise. In re Vidal, 179 U. S. 126. Section 716, Rev. Stat., confers no authority to issue the writ prayed. In re Vidal, supra. IV. The act in question is constitutional. The history of this legislation shows that it was passed by Congress, at the solicitation and with the consent of the Indians concerne , for the purpose of protecting them against fraud and wrong. The argument that it is an attempt on the part of the legis a tive branch of the Government to disturb vested rights by setting aside the final decrees of a court of competent jurisdiction, is fully answered by the opinion of the court in Stephens'-Cherokee Nation, 174 U. S. 445, 478. See also Cherokee Nation v. Hitchcock and Lone Wolf v. Hitchcock, above cite • The decision in the Stephens case was confined entirely to a EX PARTE JOINS. 99 191 U. S. Opinion of the Court. determination of the constitutionality of the legislation of Congress in respect to citizenship and the allotment of lands in the Indian Territory. Assuming, without determining, that the act of June 10, 1896, authorized the United States courts to review de novo the cases appealed from the Dawes Commission,the authority of Congress to authorize such a review was affirmed, and the legislation under consideration declared to be, in general, valid and constitutional. The question of notice was not even mentioned in the opinion in that case. The act of July 1, 1902, therefore, which provides for a specific inquiry by the Citizenship Court into the validity of the methods of procedure adopted by the United States courts in the citizenship cases appealed thereto from the Dawes Commission, and for a review of such cases upon their merits, in no way disturbs the judgment in the Stephens case. It but supplements the action of this court in that case, and merely serves to complete the declared purpose to have “ the very right ” of this controversy determined. Me. Justice Holmes delivered the opinion of the court. This is a petition for a writ of prohibition, and for a writ of certiorari in aid of the same, to the members of the Choctaw and Chickasaw Citizenship Court established by an agreement between the United States and the Choctaw and Chickasaw Nations made on March 21, 1902, and ratified by an abt of Congress of July 1,1902, 32 Stat. 641, c. 1362. By § 31 of the act the two nations were authorized to file a bill in equity in e c°urt to annul, on certain grounds of law, decrees of ni e States courts in the Indian Territory, whereby certain persons were admitted to citizenship in those nations. The was led and a decree was made purporting to annul the th meff eCrees* . ^0 prohibition sought is against giving fur-ofTh6 decree or certifying and delivering a copy earl’6 Same. ^he Dawes Commission, established under an tmi. a being alleged that the provisions of § 31 are con-y o the Constitution of the United States. e acts alleged and not denied may be summed up as fol- 100 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. lows : By the act of Juj?e 10, 1896, c. 398, 29 Stat. 321,339, Congress autl^ized^bmmission to the Five Civilized Tribes of Indians cojAjponlyAalled the Dawes Commission, to hear and determinable rights of persons claiming citizenship in any of those n^^ns,<^yKh an^ppeal to the United States courts in the Terrify. petitioner applied to the commission, and, his appl&^ionc^ing^ffejected, appealed to the United States court, and therein 8, 1898, got a decree in his favor declaring him tomember of the Chickasaw Nation. A bill of review brought by the Chickasaw Nation is pending in the United States* Court of Appeals for the Indian Territory. After the decree, and before the act of 1902, and, for anything to the contrary in the petition, before the decision of this court next to be mentioned, the petitioner entered a tract of Chickasaw land and made improvements costing fifteen thousand dollars. For this he invokes the act of June 28, 1898, c. 517, § 161,30 Stat. 495,505, 507, and he contends that that act, as well as the act of 1902, § 11, gave him a right of property in common with the other members of the tribe. Jones n. Meehan, 175 U. S. 1. On July 1, 1898, an act of Congress granted an appeal from such decrees to this court, c. 545, 30 Stat. 591, and an appeal was taken by the Chickasaw Nation. In May, 1899, it was held by this court that the act was intended to open only the question of the constitutionality of the previous legislation, which was sustained, and that the act of July 1, 1898, was not made invalid by the provision in the earlier statute of 1896 that the judgment of the United States courts on appeal to them should be final. Stephens v. Cherokee Nation, 174 U. 8. 445. The Indian nations, still being dissatisfied, there followed the agreement and the act of 1902 first mentioned in this statement. By § 33 the Choctaw and Chickasaw Citizenship Court was created. By § 32 it was given appellate jurisdiction over all judgments of the courts in the Indian Territory rendere under the above-mentioned act of 1896, admitting persons to citizenship or to enrollment as citizens in any of the sai nations. It is admitted that these sections are valid, but it is EX PARTE JOINS. 101 191 U. S. Opinion of the Court. contended that § 31, upon which the decree rests, is void. By that section it is provided that the Choctaw arid Chickasaw Nations may file a bill in the new court to annul all the said judgments or decrees of the United States courts, on the ground that notice should have been given to both nations, whereas it was given only to one, or on the ground that the proceedings should have been confined to a review of the action of the Dawes Commission on the evidence submitted to that commission, and should not have extended to a trial de novo of the question of citizenship. The suit was to be confined to a determination of these questions of law. In case the judgment or decrees should be annulled, parties deprived of citizenship were empowered to transfer the proceedings in their cases to the Citizenship Court for’ such proceedings as ought to have been had in the United States courts. Several thousand persons being concerned, ten persons admitted to citizenship were to be made defendants and served with process, and there was to be a general notice, also, by publication, with liberty to any person so situated to become a party. A bill was filed, and after proceedings in conformity to the statute a decree was rendered annulling all the said judgments or decrees on both the above grounds. The answer set up that the test case provided for had been decided and judgment entered and certified to the Dawes Commission on January 15, 1903, before the present petition was filed, and that nothing remained to be done by the Citizenship Court. It also alleged as an estoppel that, since filing this petition, this petitioner has instituted a suit by way of appeal, as provided in the act of 1902, to have his rights tried by the court on their merits, and further, that if the petitioner is an n lan he is bound by the vote of his tribe ratifying the agreement sanctioned by said act of 1902. To this answer the pe-1 loner demurred, so that, whether a demurrer was necessary or not, the allegations of the answer are not denied. n these facts the petitioner contends that § 31 is void because it provides for a personal judgment, the annulling of the ecree obtained by him, without personal service, because Congress as no power to annul or to provide for the annulling of 102 October term, 1903. Opinion of the Court. 191 u. S. a judgment of a court of competent jurisdiction not alleged to have been obtained by fraud, and because the annulling of the judgment deprives the petitioner of property rights without due process of law. It is unnecessary to state the objections to the law more in detail, because we are of opinion that the writ must be denied irrespective of these questions. We need not consider whether the jurisdiction of this court to grant a writ of prohibition to the District Courts is confined to cases where those courts are “ proceeding as courts of admiralty and maritime jurisdiction.” Rev. Stat. § 688. Ex parte The City Bank of New Orleans, 3 How. 292, 322 ; Ex parte Gordon, 1 Black, 503; Ex parte Graham, 10 Wall. 541; Ex parte Easton, 95 IT. S. 68. As to the jurisdiction in other cases, whether inherent or under Rev. Stat. § 716, see In re Rice, 155 U. S. 396; In re Huguley Manufacturing Co., 184 U. S. 297; In re Chetwood, 165 IT. 8. 443,462. Again we need not consider whether the Citizenship Court is a court in such a sense as to be subject to prohibition. See In re Vidal, 179 IT. S. 126; Gordon v. United States, 2 Wall. 561; & C. 117 U. S. 697, 702. However these things may be, it is clear that the writ will not issue after the cause is ended, and that the cause in the Citizenship Court was ended before the present application was heard. It is stated correctly by the answer that the act does hot empower the Citizenship Court to do anything in the test case beyond rendering its judgment and certifying the same, as it has done. This being so, there is nothing which this court could prohibit, even if it were of opinion that the petitioner made out a good case on the merits, which we do not intimate. Therefore the writ must be denied. United States v. Hoffma/n, 4 Wall. 158; In re Denton v. Marshall, 1 H. & C. 654,660; State n. Stackhouse, 14 So. Car. 417, 427,428; Brooks x. Warren, 5 Utah, 89. ,, ,. . j Petnhon d'bsr/i'issea. No. , Original. EX PARTE L. L. BLAKE, ET AL. This is a petition like that in Aa? parte Joins, and is gov erned by the decision in that case. . , Motion for leave to file petition deniea. ECKINGTON &c. RY. CO. v. McDEVlTT. 103 191 U. S. Statement of the Case. ECKINGTON AND SOLDIERS’ HOME RAILWAY CO. v. McDEVlTT. ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 9. Argued January 21,1903; resubmitted March 9,1903.—Decided November 16,1903. Plaintiff (below) contracted with defendant street railway company to convey to it a right of way through her land and to pay five hundred dollars in five years, it to construct extension over such right of way and operate same, running cars at certain designated hours. The right of way was conveyed, the note given, the extension constructed and operated for several years, after which the railroad company ceased and refused to mn its cars at the times designated, whereupon, her note being then overdue and unpaid, plaintiff demanded the removal of the tracks which was done. In an action to recover damages for breach of contract the trial court instructed the jury that the measure of damages was the excess, if any, in the market value of the land at the time the defendant entirely ceased to run its cars upon that part of the line which extended to and through the plaintiff’s land with the cars running in accordance with the terms of the contract of the parties in evidence, and the expectation of their continuing so to run in the future, over the market value of the said land at the same time without any cars running on said part of said line and wit out any expectation that they would ever run thereon. eld. That the instruction was not sufficiently guarded and was erroneous. That what might have been made by selling the land at a value enhanced y t e operation of the extension in perpetuity was too dependent on uncertain contingencies to justify peremptorily instructing the jury that the b an^ h^^^ were Pr°bable and contemplated consequences of This was an action brought in the Supreme Court of the Dis-nct of Columbia, August 8, 1894, to recover damages for alleged breach of contract. Plaintiff on April 4, 1889, being the owner of a tract of land in the District of Columbia, containing about twenty-two acres, (with her husband, since deceased,) en ered into an agreement with the Eckington and Soldiers’ Rome Railway Company, which recited: “Whereas the said f Par^ being desirous of securing an extension f TV and Soldiers’ Home Railway from the corner . r and T streets northeast extended, to the east line of mco n avenue in the District of Columbia, through and along 104 OCTOBER TERM, 1903. 191 U. S. Statement of the Case. the following streets, to wit: West on T street to Second street east extended, thence north on the line of said Second street extended to V street extended east in a right line, and thence west on the line of said V street so extended to the east line of Lincoln avenue; and whereas, the said party of the second part has agreed to extend said railway to said Lincoln avenue by the route aforesaid, upon certain conditions hereinafter mentioned;” therefore the McDevitts agreed in consideration of the premises “and of the covenants hereafter mentioned, to be kept and performed” by the railway company, to sell, grant and convey to it, its successors and assigns, “a right of way, sixty feet in width, for the use of the said party of the second part, its successors and assigns forever, through and along the following land belonging to the said Florence McDevitt,” described as “beginning at the southeast corner of the lands of said Florence McDevitt, adjoining the property of George Truesdell known as Eckington, and in the line of Second street east extended northwardly in a right line, and extending thence with uniform width thirty feet on each side of the center of said Second street extended, to a line fifteen feet south of the north line of said V street extended, and thence westerly with the same width on each side of the center of said V street extended, to the east line of Lincoln avenue; ” also to pay to the railway company five hundred dollars five years from the date of the agreement, with interest, to be evidenced by a promissory note. But that the grant was subject to certain “conditions” to wit, that work on the extension should be commenced on or before May 1, 1889, and completed on or before October 1,1889; that the grades should be as described; that the material removed in grading should be delivered on the lands of the McDevitts as directed by them; that the excavation should not excee twenty feet in width at bottom and sixty feet at top; and that “after said extension is completed and opened for traffic, a car shall be run thereon to Lincoln avenue at least once in thirty minutes between 7.30 a. m. and 6 p. m. and at least once a hour to 9 p. m., and one car at 11 p. m.” ECKINGTON &c. RY. CO. v. McDEVITT. 105 191 U. S. Statement of the Case. The extension was completed in the manner and within the time prescribed and opened to traffic, and the five hundred dollar note was given. On December 27, 1889, a deed was executed and delivered to the company by Mr. and Mrs. McDevitt, in form an indenture, but signed and sealed by the McDevitts alone. This conveyed the right of way to the company, “its successors and assigns forever,” with covenants of warranty and further assurance, and it also recited a covenant on the company’s part that the cars should be run as described in the contract. The extension was operated from 1889 to May or June, 1893, when the night cars were taken off. Thereupon, and on June 26, 1893, Mrs. McDevitt filed her bill for specific performance, to which the company set up in its answer, among other things, that the extension had always been a source of great loss, especially in operating at night, and that “ the present management of the road, having been advised that their right to operate said extension over the line of proposed streets without authority from Congress was very doubtful, deemed it wise to suspend such operation until thé question could be definitely settled.” July 9, 1894, the bill was dismissed but “without prejudice to the right of complainant to resort to such remedy at law as she may be advised.” About that time and prior to July 25, 1894, the railway company ceased to operate the extension a together, and it was testified that the attorney of the company, on its behalf, “refused to do anything in the way of carrying out the contract.” On the last named day Mrs. Mc- evitt notified the company, in writing, to forthwith remove rac s from the premises, and that she should bring an ac-or breach of contract. The tracks were accordingly re-ove In the meantime the five hundred dollar note had matured and was not paid. he evidence tended to show that Mrs. McDevitt had caused that ik** k ProPosed subdivision of the land to be made, but ad not been recorded, and that nothing had been 106 OCTOBER TERM, 1903. Statement of the Case. 191 u. S. done in the way of preparing the tract for subdivision and sale by grading; that no streets had been opened through it except as effected by the action of the railway company; that the excavations for the railway tracks were what would be Second and V streets, to which extent plaintiff would be relieved from grading. Evidence was introduced of sales by Mrs. McDevitt of four parcels of the land prior to the removal of the tracks, and tending to show the value of the land with and without the railroad in operation through it. Also that the business depression of 1893 caused declines in value and rendered real estate in the vicinity of this property unsalable until after 1894. Among other instructions the court gave the following: “The jury are instructed that the measure of damages in this case is the excess (if the jury find from the evidence that there was such excess) in the market value of the land at the time that the defendant ceased entirely to run its cars upon that part of its line which extended to and through the plaintiff’s land, with the cars running in accordance with the terms of the contract of the parties in evidence, and the expectation of their continuing to so run in the future, over the market value of the same land at the same time without any cars running on said part of said line and without any expectation that they would ever run thereon.” To the giving of which defendant objected and duly preserved an exception. The jury found a verdict in favor of plaintiff for $15,000, and, motions in arrest and for new trial having been made an overruled, judgment was entered thereon, which was affirme by the Court of Appeals of the District, 18 App. D. C. 497, an this writ of error thereupon sued out. The railway company was a corporation created by an ac of Congress approved June 19, 1888, 25 Stat. 190, c. 41 , “with authority to construct and lay down a single or dou e-track railway, with the necessary switches, turnouts, and ot er mechanical devices and sewer connections necessary to opera e the same by horse, cable or electric power, in the District 0 ECKINGTON &c. RY. CO. v. McDEVITT. 107 191 U. S. Argument for Plaintiff in Error. Columbia through and along the following avenues, streets and highways,” (describing them,) and also a branch as described. The railway was to be laid in the center of the avenues and streets as near as might be, and in the event of a change of grade of any of the streets, avenues or roads occupied it was made the duty of the company, at its own expense, to change its railroad so as to conform to such new grade. The company was to run cars as often as the public convenience might require, in accordance with a time table or schedule which was to be approved by the Commissioners of the District; and was to construct such ticket offices, passenger rooms, etc., at such points on its line as the Commissioners might approve. The government and direction of the affairs of the company were vested in a board of nine directors, who were to choose officers as designated. Congress reserved the right to alter, amend or repeal the act at any time. By an act approved April 30, 1890, 26 Stat. 77, c. 172, amending the charter, the company was authorized to extend its tracks through and along certain streets named, which provided “and also beginning at the present terminus of its Cemetery Branch on the east side of Lincoln avenue, and thence northerly along Lincoln avenue to a point opposite the entrance to Glenwood Cemetery.” By an act approved July 5, 1892, 27 Stat. 65, c. 143, the c arter was further amended by authorizing the extension of rac , and providing “that the tracks of said company on incoln avenue shall be taken up within thirty days from the passage of this act, and the roadway shall be restored to public uses in such manner as the Commissioners of the District of Columbia shall direct.” Mt. Walter L. McDermott and Mr. John Ridout for plaintiff m error: r bv th amages rec°verable on a breach of contract are measured e ac ua loss sustained, provided such loss is what would 108 OCTOBER TERM, 1903. 191 U.S. Argument for Plaintiff in Error. naturally result as the ordinary consequence of the breach or as a consequence which may, under the circumstances, be presumed to have been in the contemplation of both parties as the probable result of a breach.” Hadley v. Baxenddle, 9 Exch. 341, and Horne v. Midland Ry. Co., L. R. 8 C. P. 131; same cases also in 5 Eng. Ruling Cas. 502; 6 id. 617; Howard v. Stillwell & Bierce Co., 139 U. S. 199, 207; Gurley v. McLennan, 28 Wash. Law Rep. 830; M. K. & T. Ry. v. Scott, 15 Kansas, 370; Harvey v. Conn. R. R. Co., 124 Massachusetts, 421; Ward v. Central R. R. Co., 47 N. Y. 29; Ward’s, etc., Co. v. Elkins, 34 Michigan, 439; Mather v. American Express Co., 138 Massachusetts, 55. There was no actual loss sustained by the de- , fendant in error; she still owns the property. W. U. Tel. Co. v. Hall, 124 U. S. 444; Hetzel v. R. R. Co., 6 Mackey, 1. Speculative profits cannot be considered in awarding damages. Rockford &c. Ry. v. Beckemeier, 72 Illinois, 267; Roberts v. N. F. Elevated R. R. Co., 128 N. Y. 499. The effect of the business depression should have been considered in regard to the abandonment of the road. Master tony. Mayor, 7 Hill, 61. It was error to admit the testimony respecting the prices of other and similar property to that in question for the purpose of proving its value. East Pa. R. R. Co. v. Hiester, 40 Pa. St. 53, P. & N. Y. R. R. Co. v. Bunnell, 81 Pa. St. 414; Pa. S.V.R. E Co. v. Ziemer, 124 Pa. St. 560; Montclair R. R. Co. v. Benson, 36 N. J. L. 557; C. P. R. R. Co. v. Pearson, 35 California, 247, 262; Selma R. & D. R. R. Co. v. Keith, 53 Georgia, 178; In re Thompson, 127 N. Y. 463. The agreement and the record in the equity suit should not have been admitted in evidence. T e president of a railroad company has no authority to bind t e company by any agreement except in the ordinary disc arge of the company’s business. Titus v. Cairo R. R-, 37 N. • • 98; Templin v. Chicago Ry., 73 Iowa, 548. The reentry ma e by the defendant in error was an election and excluded her rom a claim for damages. Bradley v. Brigham, 144 Massachuse , 141; Thomas v. Walt, 104 Michigan, 201. ECKINGTON &c. RY. CO. v. McDEVTTT. 109 191 U. S. Argument for Defendant in Error. Mr. A. S. Worthington, Mr. John C. Heald and Mr. Charles L. Frailey for defendant in error. The instruction as to the measure of damages was correct. Hadley v. Baxendale and Horne v. Midland Ry. Co., Hertzel v. B. & 0. R. R. Co., Howard v. Stillwell & Bierce Mfg. Co. Benjamin v. Hilliard, 23 How. 149, 167 ', Primrose v. West. Un. Tel. Co., 154 U. S. 1, distinguished as not applicable in this case; but for rule see 2 Sedgwick, sec. 615; Kidd v. McCormick, 83 N. Y. 391, 397. When a railroad company has contracted with a landowner, in consideration of his allowing the company to construct its line through his land, to build and main-tain a station on or near his property and has failed to carry out its contract, the measure of damages in an action on the contract is the difference between the value of the plaintiffs land with the station and without it. Mobile &c. R. Co. v. Gilmer, 85 Alabama, 422, 436; Louisville &c. R. Co. v. Sumner, 106 Indiana, 55, 61; Houston &c. R. Co. v. Molloy, 64 Texan, 607, 613; Wilson v. Northampton &c. R. Co., L. R. 9 Ch. Ap. 279-285. So, when ornamental or fruit-bearing trees or trees used as a shade for cattle are destroyed, the measure of darn-ages is not the value of the trees, but the difference between the value of the premises with and without the trees. 3 Sedgwick, §933; Chipman v. Hibberd, 6 California, 162; Wallace v. wdall, 18 N. H. 439; Argotsinger v. Vines, 82 N. Y. 308; Van v. Young, 29 Barb. 9, and see cases cited in 6 English ng ases, 617, note on Hadley v. Baxendale; Cadle v. ®- R- Co-’ 44 Iowa’ U- Co. V. Gilder-** 29 Maryland, 154 U. S. 31. Although the actual dam-Tne 8 40 -Some extont uncertain and cannot be follow^ f111? ematically to a cent or a dollar it does not Where if ° encdn.g Party cannot be called to account at all. abrpaph ls ^certain whether any damages would result from but where°fbOn]traCt plaintiff §ets onlY nominal damages; certain th i .age ls clear and the amount of it only un-R, Co L prUi J?V°ked does not aPP!y• Simpson v. L. & N. W. • R. 1 Q. B. D. 274; Wakeman v. Wheeler and Wilson 110 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 U. 8. Manufacturing Co., 101N. Y. 205; Lanahan v. Heaver, 79 Maryland, 413; Blagen v. Thompson, 23 Oregon, 239, 254; 18 L. R. A. 315. The evidence as to value and effect of a railway thereon was properly admitted; witness was competent. Montana Ry. Co.v. Warren, 137 U. S. 348, 353; Hunter v. Burlington R. Co., 84 Iowa, 605; Diedrich v. Northwestern R. R. Co., 47 Wisconsin, 622, 667; Curtin v. R. R. Co., 135 Pa. St. 20; effect of change of grade on value. Dawson v. Pittsburgh, 159 Pa. St. 317; of putting pipe line across. Mewes v. Crescent Pipe Line, 170 Pa. St. 364; depreciation by water taking. Lee v. Springfield Water Co., 176 Pa. St. 223; laying out of highway and street opening. Dwight v. County Commissioners, 11 Cush. 201;£Aaw v. Charlestown, 2 Gray, 107; evidence competent as to effect of structure to be put on part taken on the value of part not taken; Tucker v. Mass. Cen. R. R. Co., 118 Massachusetts, 546; Chandler v. Jamaica Pond Aqueduct, 125 Massachusetts, 544; Baltimore v. Brick Co., 80 Maryland, 458, 472; Ferguson v. Stafford, 33 Indiana, 162; Frankford R. R. Co.v. Windsor, 51 Indiana, 238; Ohio Valley R. Co. v. Kersh, 130 Indiana, 314, evidence as to difference of value before and after railroad or improvement built -held admissible. Everhart v. R. R- Co., 70 Illinois, 347; R. R. Co. v. Henry, 79 Illinois, 294; R. R- Co. v. Mix, 137 Illinois, 141; Hayes v. R. R. Co., 54 Illinois, 373, and parties acquainted with property may give opinions. R. R. Co. v. Stock Yards, 120 Missouri, 541; Smalley v. low R. R. Co., 36 Iowa, 574; and the plaintiff is not confined to mere expert testimony. Pingery v. R. R. Co., 78 Iowa, 4 , Blair v. Charleston, 43 W. Va. 73; R. R- Co. v. Knapp, J Texas, 592, 600; R. R. Co. v. Woods, 31 S. W. Rep. 237, Topeka v. Martineau, 42 Kansas, 388. " . The testimony of witnesses as to value of other lan in neighborhood was competent. Cases on brief of plainti error distinguished,—inapplicable in this case. In re 127 N. Y. 463, overruled in Langdon v. Mayor, 133 N. • » and see Israel v. Manhattan R. R. Co., 158 N. Y. 624, Ro er s N. Y. El. R. R. Co., 128 N. Y. 455, 473; Doyle v. Manhattan ECKINGTON &c. RY. CO. v. McDEVITT. Ill 191 U. S. Opinion of the Court. R. R. Co., 128 N. Y. 488. In District of Columbia courts have recognized custom of giving such evidence as to value of neighboring parcels. Shoemaker v. United States, 147 U. S. 282; Kerr v. South Park Commissioners, 117 U. S. 379, 386. And see also Patterson v. Boom Co., 3 Dillon, 465; Boom Co. v. Patterson, 98 U. S. 403; 10 Eng. & Am. Ency. 2d ed. 1155; Pierce on Railroads, 224; Lewis on Eminent Domain, § 443; Randolph on Eminent Domain, § 236; 1 Greenleaf on Evidence, §14, note 43, p. 91, 16th ed. Evidence as to mere offers for neighboring lands held inadmissible, but admitted as to sales actually made. Davis v. Charles River R. R. Co., 11 Cush. 509; Paine v. Boston, 4 Allen, 168; Sawyer v. Boston, 144 Massachusetts, 470; Roberts v. Boston, 149 Massachusetts, 354; Seattle R. R. Co. v. Gilchrist, 4 Washington, 509; Mayor v. Brick Co., 80 Maryland, 458, 472; Laflin v. Chicago &c. R. R. Co., 33 Fed. Rep. 415, 423; Concord &c. R. R. Co. v. Greely, 23 N. H. 242; Washburn v. Milwaukee &c. R. R. Co., 59 Wisconsin, 364,377; Culbertson &c. Packing Co. v. Chicago, 111 Illinois, 651; Town of Cherokee v. Land Co., 52 Iowa, 279; Wyman's Case, 13 Mete. (Mass.) 316, 326; Gardner v. Brookline, 127 Massachusetts, 52; St. L. &c. R. Co. v. Clark, 121 Missouri, 169. Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. Assuming that the railway company might have lawfully ound itself to construct and operate this piece of road, the question is presented to what compensation in damages plain-briow would be entitled if the company found that the ra c did not justify its further maintenance and ceased to run its cars, or if the public interests required such changes of p J.eS.0^ the road as rendered the abandonment necessary. f amtiff had been reinstated in the possession of her land, rom the encumbrance of the right of way, and had been c arged from the liability to pay the five hundred dollars, as the record stands, it is doubtful if any direct specific 112 OCTOBER TERM, 1903. 191 U.S. Opinion of the Court. damage can properly be held to have been made out. At all events, and conceding that she was entitled to substantial damages for any injurious change of condition, any liability incurred, and any gains prevented, to secure which action had been taken, in reliance on the contract, the instruction as to the measure of damages embraced none of these matters, and was confined to profits only. The transaction was not a sale of the land where the difference between the price agreed and the market value would represent the measure of loss or gain. Restitution having been made of what plaintiff had parted with, how far could she demand to be compensated for prevented gains or anticipated profits? The contract did not purport to bind the company to operate its cars over the extension for any designated period, but, considering its terms in relation to the right of way, the trial court held that it .was bound in perpetuity, and thereupon that if it ceased to do this in whole or in part at any time, she could order the tracks off her premises, and recover the difference between the value of her land with the cars running and with the expectation that they would continue always to run, and the value without the operation of the cars and with no expectation that they would run in the future. The instruction was addressed to differences in market value as affected by the running of the cars, with the element added of expectation of continuance or cessation for all time. As thus put the supposed difference in market values amounte to anticipated profits, and these were not recoverable if de pendent on uncertain and changing contingencies and not in contemplation of both parties as a probable consequence o breach. Howard v. Stillwell and Bierce Manufacturing Co., 1 U. S. 199; Globe Refining Co. v. Landa Cotton Co., 190 U. S. 540. Whether prevented gains or prospective profits are or are no too uncertain and contingent to be regarded as probable an contemplated consequences is always a question of diffic and as in such cases juries are permitted to exercise a wi ECKINGTON &c. RY. CO. v. McDEVITT. 113 191 U. S. Opinion of the Court. discretion in the allowance of damages, great care is required in advising them as to the elements proper to be considered in making up their verdicts. In a case like this, gain prevented is a more accurate term than loss of profits. And it is said in Sedgwick on Damages (8th ed.), vol. 1, p. 250, § 173: “ Where an injured party claims compensation for gain prevented, the amount of loss is always to some extent conjectural; for there is no way of proving that what might have been, would have been. Thus, when the claim is made for compensation for a deprivation of property, it may be that if the property had remained in the owner’s control it would have brought no gain.” Here the evidence tended to show that a financial depression prevailed at the time of the breach, and that all real estate in the particular locality was unsalable. Gains, then, were practically impossible, while on the other hand there was evidence that some years after the breach the depression passed away and real estate rose in value. The books contain many illustrations of the uncertainties which will or may defeat recovery of anticipated profits. In Rockford, R. I. &c. R. R. Co. v. Beckemeier, 72 Illinois, 267, it was held, in a suit against a railroad company for the failure to erect a depot building upon plaintiff’s farm, as agreed, that any supposed damage to the farm on that account, growing out of anticipated increased value, was too remote. In Evans v. Cincinnati, S. & M. R. R. Co., 78 Alabama, 341, a railroad company agreed to locate houses for its hands near P aintiff s land, and it was held that possible loss of profits at s store and mill was too speculative. So in Missouri, Kansas & Texas Railway Co. v. Fort Scott, ansas, 435, where a railroad company failed to perform its agreement to make the city of Fort Scott the terminus of one ivision of its line and erect machine shops there, it was a* an inquiry into the value of real estate and amount usiness, in order to show what profits would have been vol. cxci—8 114 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S, made, was improper; but the city might recover for the value of the buildings to it as taxable property. Scholten v. St. Louis & S. F. R. R. Co., 73 S. W. Rep. 915, is so far in point that it may well be cited, though not decided by a court of last resort. There the St. Louis Court of Appeals held that where a railroad’s agreement to build and maintain a switch for a private property owner did not affect the performance of the railroad’s duties to the public, the railroad was not entitled to allege in an action for illegally destroying the switch, that the contract was void as against public policy; and that as the plaintiff had graded the right of way and furnished the ties, and the agreement did not specify any length of time for the maintenance of the switch, plaintiff was entitled on the destruction of the switch to recover the value of the ties and the cost of grading. Treating the contract as a simple contract, and the refusal to run the cars as a breach which Mrs. McDevitt could accept as finally determining it, we think she could not recover for deprivation of the speculative gains of a remote future. What might have been made by selling the land at a value enhanced by the operation of the tracks in perpetuity was purely problematical and not naturally in contemplation. And the more so in view of the fact that railroad companies, while private corporations, are quasi public agencies engaged in the performance of public duties, and that contracts which prevent them from the discharge of those duties cannot be sustaine • It did not follow that the company, because it possessed the power to construct and operate this extension, could contract to operate it forever in so absolute a sense that damages cou be awarded for the breach of such a contract predicated on the expectation of its perpetual operation. Texas & Pacific ai way Co. v. Marshall, 136 U. S. 393. Again, in this aspect, t e instruction treated the agreement as equivalent to a covenan running with the land, and we are inclined to think that e bearing Mrs. McDevitt’s demand that the tracks be remove , and the accepted and complete surrender of the right o way HOLDEN v. STRATTON. 115 191 U. S. Statement of the Case. * by their removal accordingly, might have had, under all the circumstances, on the question of prospective damages should not have been excluded from the jury. We are of opinion that the instruction as given was erroneous, and as it was definite and peremptory in its terms, and as it cannot be said that the jury were not influenced, and perhaps controlled, by it, we hold the error fatal to the judgment. As there must be a new trial we refrain from discussing the suggestions in respect of the acceptance of the deed by the company, a subject much considered in Willard v. Wood, 135 U. S. 309; £ C., 164 U. S. 502, and the discharge of the alleged covenant, made below, but not pressed in argument here. Reversed and remanded with directions to reverse the judgment of the Supreme Court of the District and order a new trial. Mr. Justice White and Mr. Justice McKenna dissented. HOLDEN v. STRATTON. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 38. Submitted October 22,1903.—Decided November 16, 1903. ppeals to this court from decrees of the Circuit Courts of Appeals revising procee ings of the inferior courts of bankruptcy under section 246 of the bankruptcy law, will not lie. o separate proceedings were commenced in the District ourt of the United States for the District of Washington, on 19’ 1901’ aSa^ns^ D. N. Holden and Lizzie Holden, to e en that each be adjudicated a bankrupt, which were con-so dated, and on the ensuing twenty-fifth of February they th k resPec^ve^y> so adjudicated. The creditors of each of ^bankrupts were the same. hereupon J. A. Stratton was duly elected trustee in bank 116 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S, ruptcy of the estate of each of the bankrupts and qualified as such. The bankrupts, and each of them, applied for exemption in their favor of two certain policies of life insurance in the hands of the trustee. D. N. Holden was insured, and Lizzie Holden was the beneficiary, in both, with the provision that if she should not survive him, payment should be made to his executors, administrators and assigns. The exemption was disallowed by the referee, who reported his action to the court. The bankrupts filed exceptions to the report, and the court on July 16, 1901, set it aside and adjudged the policies to be exempt. Stratton then filed a petition in the Circuit Court of Appeals for the Ninth Circuit for a revision of this order. It was therein alleged among other things that the policies had a present cash surrender value combined of about twenty-two hundred dollars. The Circuit Court of Appeals, accepting the ruling of that court in the previous case of In re Scheid, 104 Fed. Rep. 8/0, held that the policies were not exempt, and decreed a revision of the order of the District Court accordingly. 113 Fed. Rep. 141. From this decree an appeal was prayed to this court and allowed February 12,1902, and the record was filed here April 14, 1902. And subsequently a certificate of a justice of this court was filed herein that in his opinion the determination of the questions involved was essential to a uniform construction o the bankruptcy act throughout the United States. The appeal was submitted on a motion to dismiss, and also on the merits. Mt. George Turner and Mr. P. P• Carroll for appellants. Mr. Frederick Bausman for appellees. Mr. Chief Justice Fuller delivered the opinion of the court. It will be perceived that the jurisdiction of the Circuit C of Appeals was invoked on an original petition un e HOLDEN v. STRATTON. 117 191 U. S. Opinion of the Court. tion 246 of the bankruptcy law, which provides:“ The several Circuit Courts of Appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved.” This supervisory jurisdiction in matter of law was conferred on the Circuit Courts by the act of March 2, 1867, 14 Stat. 517, 518, c. 176, § 2; Rev. Stat. § 4986, and it was settled under that act that appeals to this court did not lie from the decisions of the Circuit Courts in the exercise of that jurisdiction. Morgan v. Thornhill, 11 Wall. 65; Conro v. Crane, 94 U. S. 441. The ruling is decisive here unless the present act elsewhere otherwise provides. But this it does not do, the special and summary character of the revision contemplated being substantially the same as in the prior act, and the provision for appeals not embracing appeals from decrees in revision. Section 25a, 30 Stat. 544, c. 541, July 1, 1898, provides ‘ that appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the Circuit Court of Appeals of the United States, and to the Supreme Court of the Territories, in the following cases, to wit, (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over.” And section 256 for appeals to this court “from any final decision of a Court of Appeals, allowing or rejecting a claim under this act,” where the amount in controversy exceeds the sum of two thousand dollars, and the question involved was one which might have been taken from the highest court of a tate to the Supreme Court of the United States; or where some justice of the Supreme Court certifies that “in his opinion t e determination of the question or questions involved in the a owance or rejection of such claim is essential to a uniform construction of this act throughout the United States.” 118 OCTOBER TERM, 1903. Opinion of the Court. 191U. S. This case was not taken to the Court of Appeals by appeal, as in equity cases, to be reexamined on the facts as well as the law, nor could it have been, for it was not one of the cases enumerated in section 25a. The order of the Circuit Court was not11 a judgment allowing or rejecting a debt or claim of five hundred dollars or over,” or the revising order of the Circuit Court of Appeals, “a final decision, allowing or rejecting a claim,” within the intent and meaning of either subdivision a or b. By section 2, subd. 2, courts of bankruptcy are vested with the power to “allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates;” and section fifty-seven comprehensively covers the subject of the proof and allowance of claims, treating them as moneyed demands. And while the word “ claim” is used in its signification of the demand or assertion of a right in subd. 11 of section 2, in respect of “ all claims of bankrupts to their exemptions,” it is also used in many parts of the act, and, as we think, in section 25, as referring to debts, (which by sub-sec. 11 of section 1 include “any debt, demand or claim provable in bankruptcy,”) presented for proof against estates in bankruptcy. Hutchinson v. Otis, 190 U. S. 552, 555; In re Whitener, 105 Fed. Rep. 180; In re Columbia Real Estate Co., 112 Fed. Rep. 643, 645. The allowance or rejection of a debt or claim is a part of the bankruptcy proceedings, and not an independent suit, and under the act of 1867 it was held that this court had no jurisdiction to review judgments of the Circuit Courts dealing with the action of the District Courts in such allowance or rejection because they were not final. Wiswall v. Campbell,^ U. S. 347; Leggett v. Allen, 110 U. S. 741. The jurisdiction now given is carefully restricted and cannot be expanded e yond the letter of the grant. It is an exception to the genera rule as to appeals and writs of error obtaining from the foun a tion of our judicial system. McLish v. Roff, 141 U. S. 66 . The distinction between steps in bankruptcy proceedings proper and controversies arising out of the settlement of t CONTINENTAL NATIONAL BANK v. BUFORD. 119 191U. S. Syllabus. estates of bankrupts is recognized in sections 23, 24 and 25 of the present act, and the provisions as to revision in matter of law and appeals were framed and must be construed in view of that distinction. Denver First National Bank v. Klug, 186 U. S. 202; Elliott v. Toeppner, 187 U. S. 327, 333, 334. Section 6 of the act of March 3, 1891, has no application, as that refers to cases carried to the Circuit Court of Appeals by appeal or writ of error. But in view of the terms of that act and of the nature of the writ, we have held that under a reasonable construction of subdivision d of section 25, certiorari lies to decrees in revision. Bryan v. Bernheimer, 175 U. S. 724; S. C., 181 U. S. 188; Mueller v. Nugent, 180 U. S. 640; >8. C., 184 U. S. 1; Louisville Trust Co. v. Coming or, 181 U. S. 620; 8. C., 184 U. S. 18. In the case first cited it is pointed out that the Circuit Court of Appeals treated the case as if before it on a petition for revision though it had been carried there by appeal, and we considered the decree as rendered in the exercise of the supervisory power. 181 U. S. 192, 193. Appeal dismissed. CONTINENTAL NATIONAL BANK OF MEMPHIS v. BUFORD. ERROR to the circuit court of appeals FOR the eighth CIRCUIT. No. 60. Argued November 6,1903.—Decided November 16,1903. On error or appeal the first and fundamental question is that record8 court an(l then of the court from which the k comes, and such a question arising on the face of the record cannot be ignored. B ba^k aCtS °r 12, 1882’ March 3’ 1887 and AHg"8* 13> 1888> national acti^8 °r Pu^Poses the jurisdiction of the United States courts in 7 °r a^ns^ them, to be deemed citizens of the States in which they are located. 120 191 U. S. OCTOBER TERM, 1903. Opinion of the Court. An action brought by a national banking association in a circuit court of the United States against citizens of another State, where no ground of jurisdiction appears in the record except diversity of citizenship, is not, owing to the mere fact that the plaintiff is organized under the national banking law, one arising under the laws of United States, and under the Judiciary Act of March 3, 1891, the judgment of the Circuit Court of Appeals is final and, therefore, not subject to review by this court. The facts are stated in the opinion. Mr. Rhea P. Cary for plaintiff in error. Mr. William J. Orr for defendant in error. Mr. Justice Harlan delivered the opinion of the court. Has this court authority to review the judgment of the Circuit Court of Appeals in this case? This question arises upon the face of the record, and cannot be ignored; for, the rule is well established that, “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.” M. C. & L. M. Railway Co. v. Swan, 111 U. S. 379, 382; King Bridge Co. v. Otoe County, 120 U. S. 225; Martin v. Balt. & Ohio R. R. Co., 151 U. S. 673, 690, Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, 98; Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 453. The plaintiff in error, plaintiff below—the Continental National Bank, organized under the acts of Congress, and locate for purposes of business at Memphis, Tennessee alleged in its complaint that the Bank of Mammoth Springs, an Arkansas corporation, was indebted to it in a named sum, and it soug t by this action to hold the defendant liable for the amount o such debt. The action was based upon certain sections of the Statutes of Arkansas, c. 47, Sandels & Hill’s Digest, as follows. 1337. The president and secretary of every corporation organized under the provisions of this act shall annually ma e CONTINENTAL NATIONAL BANK v. BUFORD. 121 191 U. S. Opinion of the Court. a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained, on the 1st day of January or of July next preceding the time of making such certificate, in the following particulars, viz: The amount of capital actually paid in; the cash value of its real estate; the cash value of its personal estate; the cash value of its credits; the amount of its debts; the names and number of shares of each stockholder; which certificate shall be deposited on or before the 15th day of February or of August with the county clerk of the county in which said corporation transacts its business, who shall record the same at length in a book to be kept by him for that purpose.” “ § 1346. The certificates required by sections 1334,1337,1343 and 1344, except certificates òf transfers of stock, shall be made under oath or affirmation by the person subscribing the same ; and if any person shall knowingly swear or affirm falsely as to any material facts, he shall be deemed guilty of perjury, and be punished accordingly. “ § 1347. If the president and secretary of any such corporation shall neglect or refuse to comply with the provisions of section 1337, and to perform the duties required of them respectively, the persons so neglecting or refusing shall jointly and severally be liable to an action founded on this statute, for all debts of such corporation contracted during the period of any such neglect or refusal.” The complaint alleged that during the entire period of his term of office as President of the Bank of Mammoth Springs, that is, from June 9, 1891, to June 9, 1896, the defendant Buford “wholly neglected to comply with the provisions and perform the duties required of him by said sections 1337 and 1346, by making, swearing to and causing to be filed the statement or certificate required thereby.” The defendant demurred to the complaint on various grounds, one being that the plaintiff’s action appeared to be barred by the statute of limitations of Arkansas. The Circuit Court sus-aine the demurrer, it being of opinion that the complaint did 122 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. not show any cause of action; also, that a suit for the debt in question was barred by the statute of limitations of Arkansas. The plaintiff declining to amend, the suit was dismissed. That judgment was affirmed by the Circuit Court of Appeals, 114 Fed. Rep. 290, and from that judgment the present writ of error was prosecuted. By the very terms of the Judiciary Act of March 3,1891,26 Stat. 826, c. 517, the judgment of a Circuit Court of Appeals of the United States is final where the jurisdiction of the Circuit Court depends entirely upon the diverse citizenship of the parties. No ground whatever of jurisdiction in the Circuit Court appears in the complaint or elsewhere in the record, other than diversity in the citizenship of the parties, unless it can be said that by reason alone of the plaintiff bank having been organized under an act of Congress the suit is one arising under the laws of the United States. This, however, could not be said of the present suit, if regard be had to the acts of Congress defining and regulating the jurisdiction of the courts of the United States. The Judiciary Act of March 3, 1875, for the first time, invested the Circuit Courts of the United States, without reference to the citizenship of the parties, with original jurisdiction of all suits of a civil nature at common law or in equity, where the matter in dispute exceeded a prescribed sum, and the suit was one “arising under the Constitution or laws of the United States.” Referring to that statute, this court, in Petri v. Commercial Bank, 142 U. S. 644, 648, said: “ Suits by or against national banks might therefore be brought or removed upon the ground of diverse citizenship, or of subject matter, since as they were created by Congress, and could acquire no rig , make no contract and bring no suit, which was not authorize by a law of the United States, a suit by or against them was necessarily a suit arising under the laws of the United ta es. Osborn v. Bank of the United States, 9 Wheat. 738, £ Manufacturers’ Bank v. Cooper, 120 U. S. 778; Pacific Rai to Removal Cases, 115 U. S. 1. And of course national ban , CONTINENTAL NATIONAL BANK v. BUFORD. 123 191 U. S. Opinion of the Court. well as state banks and individuals, might bring or remove suits otherwise arising under the Constitution, laws or treaties of the United States.” But, in respect of national bank associations, a radical change was introduced by subsequent acts of Congress. By the act of July 12, 1882, c. 290, it was provided: “That the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking associations may be doing business when such suits may be begun: And all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed.” 22 Stat. 162. Then came the Judiciary Act of March 3, 1887, corrected by the act of August 13, 1888, c. 866, and providing (§ 4): “That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the Circuit and District Courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same tate. The provisions of this section shall not be held to affect t e jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer ere°f> or cases for winding up the affairs of any such bank.” 25 Stat. 433. The necessary effect of this legislation was to make national an or PurPoses of suing and being sued in the Circuit our s of the United States, citizens of the States in which ri H respectively l°ca4ed, and to withdraw from them the (Tn-+ mvokethe jurisdiction of the Circuit Courts of the tates simply upon the ground that they were created 124 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. by and exercised their powers under acts of Congress. No other purpose can be imputed to Congress than to effect that result. Of course, notwithstanding the acts of 1882 and 1888, there remained to a national bank, independently of its Federal origin, and as a citizen of the State in which it was located, the right to invoke the original jurisdiction of the Circuit Courts in any suit involving the required amount, and which, by reason of its subject matter, and not by reason simply oi the Federal origin of the bank, was a suit arising under the Constitution or laws of the United States. Petri v. Commerced Bank, 142 U. S. 644, 648. Treating the plaintiff as a citizen of Tennessee, its right to sue the defendant in the Federal court, sitting in Arkansas, was beyond dispute. But, as already suggested, it did not assert any right, privilege or immunity that was dependent in any degree upon the Constitution or laws of the United States. As jurisdiction could not arise merely from the Federal origin of the plaintiff bank, and as no Federal question was involved in the suit, it must be taken that the only ground of jurisdiction in the Circuit Court was the diverse citizenship of the parties. If, apart from the fact that the plaintiff bank was a Federal corporation, the suit had been one arising under the Constitution or laws of the United States, it coul not have been said that the jurisdiction of the Circuit Court depended entirely upon diverse citizenship of the parties, u as no Federal questions, upon which the suit depended, are presented by the record, the judgment of the Circuit Court o Appeals in this case was final, and, therefore, not su jec review by this court. .. . What we have said is, we think, required by the eclsl^n Ex parte Jones, 164 U. S. 691. It appeared in that case a^ judgment for money was recovered in the Circuit Cour o United States for the District of Massachusetts. Bs was paid and subsequently deposited in a national ban . bank having refused to pay over the money, suit was r against it. The suit was dismissed by the Circuit . our the judgment of dismissal was affirmed by the Circuit CONTINENTAL NATIONAL BANK v. BUFORD. 125 191 U. 8. Opinion of the Court. Appeals. The latter court having refused to allow an appeal upon the ground that an appeal was not given by the statute, proceedings by mandamus were instituted to compel it to do so. After referring to the clause in the Judiciary Act of 1888, declaring that national banking associations should be deemed citizens of the States in which they were respectively located, and that the Circuit and District Courts should not have jurisdiction, other than such as they would have in cases between individual citizens of the same States, the court said (p. 693):11 In Leather Mfrs. Bank v. Cooper, 120 U. S. 778, it was held by this court that, under the act of 1882, which was similar in its terms [to that of 1888], an action against a national bank could not be removed to the Federal court, ‘unless a similar suit could be entertained by the same court by or against a state bank in like situation with the national bank. Consequently, so long as the act of 1882 was in force, nothing in the way of jurisdiction could be claimed by a national bank because of the source of its incorporation. A national bank was by that statute placed before the law in this respect the same as a bank not organized under the laws of the United States.’ • . . In this case the original bill averred the complainant to be a citizen of Pennsylvania and the defendant to be a national bank, duly established under the laws of the -United States, having its place of business at Boston, and a citizen of the State of Massachusetts. As the bill was filed after the act of 1888 took effect, it must be deemed to be a suit dependent upon citizenship alone. . . . The petition for mandamus must be denied.” Of course, that suit would not have been so regarded, and the petition would have been granted, if the ederal origin of the bank had been itself ground of jurisdic-mn, independently of the diverse citizenship of the parties. or the reasons stated, the writ of error must be dismissed or want of jurisdiction in this court to review the final order 0 “e Circuit Court of Appeals. Dismissed. 126 OCTOBER TERM, 1903. 191 U.S. Statement of the Case. HOWARD v. FLEMING. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA. HOWARD v. NORTH CAROLINA. ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CARO- LINA. Nos. 44,45. Argued October 27, 1903.—Decided November 16,1903. The decision of the highest court of a State that conspiracy to defraud is a common law offense and as such cognizable in the courts of that State, although there be no statute defining or punishing such a crime, is not a Federal question, nor reviewable by this court. Nor can this court inquire whether the indictment sufficiently charged the offense. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one and where the highest court of a State has sustained the sentences of ten years each, imposed on two men convicted with a third of a conspiracy to defraud, and such punishment does not from the record appear unreasonable considering the nature of the offense, this court will not set Aside the judgment as imposing a cruel and unusual punishment either on the facts or because the other person convicted was only sentenced to seven years. This court will not hold that the omission of the recital of reasons w ic justify the peculiar form of a sentence will invalidate a judgment w ic is warranted by the statute and which has been sustained by the ig est court of the State. . . . ... When the highest court of the State has decided that in a crimina ri is sufficient to charge the jury correctly in reference to reasona e o and that an omission to refer to any presumption of innocence invalidate the proceedings, such an omission cannot be regar e y court as a denial of due process of law. , Where no claim to protection under the Federal constitution was pres to the Supreme Court of the State, a writ of error will not ie ro court even though Federal questions were discussed in the opm the state court. At the June term, 1901, of the Superior Court of Guilfor County, North Carolina, the three parties named as appe^ lants in the first of these cases and as plaintiffs in error m second were indicted, tried and convicted of the crime o con HOWARD v. FLEMING. 127 191 U. S. Argument for Appellants. spiracy. Daly was sentenced to the penitentiary for seven years and Howard and Hawley for ten years each. All appealed to the Supreme Court of the State, by which court the judgment was affirmed, 129 North Carolina, 584, and thereupon the writ of error in the last case was issued. A writ of habeas corpus was also sued out from the Circuit Court of the United States for the Eastern District of North Carolina, directed to the warden of the state prison, which, after hearing, was dismissed, and from such dismissal an appeal was taken to this court; and that is the first of the above cases. Mr. Frank P. Blair, with whom Mr. Leslie A. Gilmore was on the brief, for appellants in No. 44, and plaintiffs in error in No. 45: Habeas corpus proceedings and writ of error may proceed concurrently. Ex parte Frederick, 149 U. S. 70; Whitten v. Tomlinson, 160 U. S. 242; Markuson v. Boucher, 175 U. S. 186; Kohl v. Lehlback, 160 U. S. 293. With respect to the inhibitions of the Fourteenth Amendment, it makes no difference by what branch or instrumentality of the state government they are violated, the Federal courts will protect the citizen of the United States in any event. Chicago, B. & Q. R. R. v. Chicago, 166 U. S. 226; Scott v. Me-Neal,154 U. S. 34. The judgment being in violation of the Constitution is utterly void. The defendants below were denied the equal protection of 1 e laws. The sentence is more severe than any ever in-cted in the State for like offense. For shorter sentences in worse cases see State v. Powell, 121 N. Car. 635; State v. Wil-N- Car. 650; State v. Jackson, 82 N. Car. 565; State n. Malktt, 125 N. Car. 718; N. C., 181 U. S. 589; Rev. Code, 974> U07; Laws, 1870, ch. 103, § 2. e. judgment should have contained a recital in order to ma e it valid to sentence to the penitentiary instead of to the as. By reason of the unequal sentence, Daly being only need to seven years, the appellants were denied equal 128 OCTOBER TERM, 1903. Argument for Appellants. 191U. S. protection of the laws. There were no different degrees of culpability. State v. Jackson, 82 N. Car. 565. The Fourteenth Amendment prohibits a different or higher punishment to be imposed on one than is imposed on all for like offenses. Re Kemmler, 136 U. S. 436; Caldwell v. Texas, 137 U. S. 692; Connolly v. Union & C. Co., 184 U. S. 540. The sentence is 11 cruel and unusual,” within the meaning of the state constitution; and hence discriminates against defendants below. State v. Driver, 78 N. Car. 423. The trial, conviction and sentence were not due process of law. The offense was not a crime by statute of North Carolina. There is no offense of conspiracy under the common law, and there being no law covering this offense, defendants were tried by a mob and not by due process of law. There was no offense—conspiracy to defraud—at common law prior to 1607, the year at which most of our states put the statutory limit of their adoption of the common law. Subsequent to that date English precedents are persuasive merely. Cathcart v. Robinson, 5 Pet. 264; Comm. v. York, 9 Mete. 93; Sen. Spencer in Lambert v. People, 9 Cow. 578, 590; Bowie v. Duval, 1 Gill. & J. 175; Stump v. Napier, 2 Yerg. 45. As to the common law of North Carolina in regard to conspiracies to defraud, the lower court relied on State v. Buchanan, 5 Har. & J. 317, which is an incorrect decision, as is also Comm. v. Judd, 2 Massachusetts, 329. See State n. Rickey, 4 Halst. 293. And see the cases cited in the opinion of the court below. As to rulings of North Carolina courts in regard to common law crimes, see State v. Kessler, 78 N. Car. 469. If there was any such thing as common law conspiracy in North Carolina it had been abolished by statute. Rev. Co e, § 641. State v. Younger, 12 N. Car. 357. A construction in favor of liberty should be adopted if possible. United States v. Wiltberger, 5 Wheat. 76. . In North Carolina the court has always held that a c ea must be by false token, weights or measures, in order to e criminal, State v. Justice, 13 N. Car. 199. Civil injuries HOWARD v. FLEMING. 129 191 U. S. Argument for Appellants. should not be the subjects of criminal prosecutions. Good policy does not require the multiplication of public offenses. State v. Politto, 11 N. Car. 348; State v. Alfred, 84 N. Car. 349; State v. Phifer, 65 N. Car. 321; State v. Burke, 108 N. Car. 750; United States v. Watkins, 3 Cranch C. C. 441. The sentence was not due process of law, because greater than can be inflicted for the offense in any other American judiciary, and also because it was so severe that it raises the presumption that vindictiveness, passion and hatred entered into the judgment. [Numerous state penal laws as to conspiracy and term of punishment are cited in detail, many of them less than ten years.] The sentence is not due process because the people are opposed to judge-made crimes and only tolerate them when followed by mildest punishment. In United States courts, in New Hampshire, Massachusetts, New York, Michigan, Maine, Vermont, Iowa, Kentucky and Pennsylvania it is not a crime to combine to defraud by false pretenses, unless the pretenses consist of false weights, measures or tokens or some other, means criminal in themselves. State v. Parker, 43 N. H. 83; Comm. v. Eastman, 1 Cush. 189; Comm. v. Wallace, 16 Gray, 221; Lambert v. People, 9 Cow. 578; Aiderman v. People, 4 Michigan, 414; People n: Barkelow, 37 Michigan, 455; State v. Mayberry, 48 Maine, 219; State n. Stephens, 30 Iowa, 391; Hartman v. Comm., 5 Barr. 60; Comm. v. Ward, 92 Kentucky, 158 ; State v. Reach, 40 Vermont, 113; United States v. Walsh, 5 Dill. 58. On the other hand the States of Illinois, Maryland, New Jersey and others hold that combination to cheat and defraud by whatever means is criminal. Cole v. People, 84 Illinois, 216; State v. Buchanan, 5 Har. & J. 317; State v. Cole, 10 Vroom, 324. In several of the States conspiracy is defined and the statutes expressly declare that no other combinations shall be eemed criminal. Conspiracies defined, and no combinations other than such are punishable. Arizona, Penal Code, § 3; California, Penal Code (1899), § 182; Minnesota, Genl. Stat. VOL. cxci—9 130 OCTOBER TERM, 1903. 191 U. 8. Argument for Appellants. (1894), § 6424; Montana, Code (1895), Penal Code, §322; New York, Penal Code (1900), §170; North Dakota, Penal Code (1899), § 7039. No crimes except statutory. Common law crimes not punishable. Arizona, Penal Code, § 3; California, Penal Code (1899), § 6; Georgia, there appears to be no common law crimes; Indiana, 1 R. S. Ind. (1901), §237; Montana, Code (1895), § 6; Nebraska, apparently none but statutory offenses; Ohio, no common law offenses, Mitchell v. State, 42 Ohio St. 383; Oklahoma, Stat. (1893), §1838; North Dakota, Penal Code (1899), § 6801; Texas, Penal Code (1895), § 3. New crimes should not be created by the court. Wiltberger's Case, 5 Wheat. 76, 96; United States v. Sheldon, 2 Wheat. 119; United States v. Morris, 14 Peters, 464, 475; The Federalist, No. 62. The trial was not due process because the judge refused to charge on the presumption of innocence. State v. Heaton, 77 N. Car. 505; Coffin v. United States, 156 U. S. 432; Cochrane v. United States, 157 U. S. 286; Kirby v. United States, 174 U. S. 47, 55; Allen v. United States, 164 U. S. 492; Agnew v. United States, 165 U. S. 36. The presumption of innocence is vital and fundamental. Brown v. New Jersey, 175 U. S. 172; In re Kemmler, 136 U. S. 436; Hurtado v. State, 110 U. S. 516. A denial of such a right by any instrumentality of a State is a denial of due process of law. The indictment charges no offense and therefore is not due process of law. An indictment charging a conspiracy to cheat and defraud, without more, is fatally defective; or else so defective that a bill of particulars is matter of right and it is fatal error to refuse it. King y. Gill, 2 B. & Aid. 204, Fex v. Hamilton, 7 C. & P. 448; State v. Parker, 43 N. H. 83; Comm. v. Eastman, 1 Cush. 189; Comm. v. Wallace, 16 Gray, 221, Lambert v. People, 9Cowen, 578; Aldermanv. People,4Michigan, 414; People v. Barkelow, 37 Michigan, 455 ; State v. Stevens, Iowa, 391; Hartman v. Comm., 5 Barr. 60; Witlia^v^^™'1 34 Pa. St. 178; State v. Crowley, 41 Wisconsin, 271; State v. HOWARD v. FLEMING. 131 191 U. S. Argument for Defendant in Error. Cardoza, 11 S. Car. 195; State v. Mayberry, 48 Maine, 219; United States v. Walsh, 5 Dill. 58; Comm. v. Ward, 92 Kentucky, 158; State v. Keach, 40 Vermont, 113. Mr. Robert D. Gilmer, Attorney General of the State of North Carolina, and Mr. Thomas B. Womack for defendant in error: An objection to the jury in North Carolina must be taken by plea in abatement and not by motion to quash and that rule is binding on the court. Torrance v. Florida, 188 U. S. 519; State v. Gardner, 104 N. Car. 739; State v. Wilcox, 104 N. Car. 853; State v. Sharp, 110 N. Car. 604; State v. Fertilizer Co., Ill N. Car. 658; State v. DeGraff, 113 N. Car. 688. An almost similar rule exists in the United States courts. United States v. Gale, 109 U. S. 63; Agnew v. United States, 164 U. 8. 36. The plaintiffs in error were not denied equal protection of the laws in accepting and filing the indictment. Finding of facts by the state courts cannot be reviewed either upon appeal or writ of error. Dower v. Richards, 151 U. S. 663, 668, 669; In re Buchanan, 158 U. S. 31; Bartlett v. Lockwood, 160 U. S. 360; Stanley v. Schwalby, 162 U. S. 278; Noble v. Mitchell, 164 U. S. 373; Israel v. Arthur, 152 U. S. 362. It is for the state court to determine whether or not its statutes are binding under the state constitution, and whether one has received equal protection of the laws of the State in a regular administration of the criminal law. Leeper v. Texas, 139 U. S. 462; O’Neil v. Vermont, 144 U. S. 336. The insufficiency of an indictment is not a Federal question. An erroneous ruling on a defective indictment does not present a Federal question. Bergemann v. Backer, 157 U. S. 655; Central Land Co. v. Laidley, 159 U. S. 112; Gibson v. Mississippi, 162 U. S. 59; In re Boardmen, 169 U. S. 44; Remington Paper Co. v. Watson, 173 U. S. 451; Kohl v. Lehlback, 160 U. S. • Due process of law does not even require an indictment w ere information is provided for. McNulty v. California, 149 U. S. 645; Talton v. Mayes, 163 U. S. 384; Nordstron v. ashington, 164 U. S. 705. The question as to whether or 132 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 U. S. not an indictment charges a crime under the laws of a State does not present a Federal question. Caldwell v. Texas, 137 U. S. 692 ; Davis v. Texas, 139 U. S. 652 ; Bergemann v. Backer, 157 U. S. 656; O’Neil v. Vermont, 144 U. S. 323. The appellants were not denied equal protection of the laws of North Carolina, in that the nisi prius judge did not instruct the jury that they were presumed to be innocent, and that this presumption attended them until it was overcome by positive evidence of guilt. The punishment was not cruel under the Federal constitution as there is no evidence to support the statement that it is more severe than any ever before imposed. No Federal question is presented. Walker v. Vellaraso, 6 Wall. 128; Dower v. Richards, 151 U. S. 663; State v. Mallett, 125 N. Car. 718. This is simply a case of a state court determining the meaning of a state statute and constitution, and where there is nothing obviously violative of the fundamental principles. Lambert v. Barrett, 157 U. S. 697 ; Raezel v. Kirk, 172 U. S. 646, Kohl v. Lehlback, 160 U. S. 296, and other cases cited, supra. The judgment is not void because the punishment is cruel and unusual as defined by the constitution of North Carolina. That is not a Federal question, and as to the contention that the punishment is violative of the Eighth Amendment of the Federal constitution, that Amendment is inapplicable to the States, and applies only to Federal action. O’Neil v. Ver mont, 144 U. S. 323; Barron v. Baltimore, 7 Pet. 243; Peryear v. Massachusetts, 5 Wall. 475 ; Ex parte Kemmler, 136 U. 8.43 , Davis v. Texas, 139 U. S. 651. Whether -there is a common law crime of conspiracy to e fraud cognizable by the courts of North Carolina, is not a Federal question, and the decision of state courts as what are the laws of the State is binding upon the cour of the United States. South Ottawa v. Perkins, 94 • 260, 268; Post v. Kendall County Supervisors, 105 , ‘ 667, Norton v. Shelby County, 118 U. S. 425, 440, I HOWARD v. FLEMING. 133 191 U. S. Argument for Defendant in Error. & G. R. Co. v. Georgia, 98 U. S. 359, 366; Baldwin v. Kansas, 129 U. S. 52, 57. The powers of States in dealing with crime within their borders are not limited by the Fourteenth Amendment except that no State can deprive particular persons or classes of persons of equal and impartial justice under the law ; that law in its regular course of administration through courts of justice is due process, and when secured by the law of the State the constitutional requirement is satisfied. A similar indictment was sustained in State v. Brady, 107 N. Car. 822; State v. Younger, 12 N. C. R. 357. As to cases on common law conspiracy see Caldwell v. Texas, 137 U. S. 691; State v. Buchanan, 5 Har. & J. 317; State v. Burnham, 15 N. H. 396; Commonwealth v. Hunt, 45 Massachusetts, 111; State v. Pulle, 12 Minnesota, 164; United States v. McCord, 72 Fed. Rep. 159; Bishop’s New Criminal Law, § 774, vol. II; State v. Brady, 107 N. C. R. 822; State v. Powell, 121 N. C. R. 635. According to the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined power, to wrong others or to prejudice the rights of the public, is in itself illegal, though nothing be actually done in execution of such conspiracy. Arthur v. Oakes, 63 Fed. Rep. 321. Statutes against conspiracies are merely declaratory of the common law. Farmers Loan and Trust Co. v. Northern Pacific Railroad Co., 60 Fed. Rep. 817; Hawkins’ Pleas of the Crown, ch. 27, sec. 2; Rex v. Eccles, 1 Leach, 274; Chitty Cr. Law, 1139; Archibald Criminal Practice and Pleading, 1829; Queen v. Kendrick, 5 Q- B. D. 49; Crump v. Commonwealth, 84 Virginia, 927; State v. Stewart, 59 Vermont, 273; State v. Donnelson, 32 N. J. L. 151; State v. Glidden, 55 Connecticut, 46; People v. P ether am, 4 Michigan, 252; State v. Burnham, 15 N. H. 403; Commonwealth v. Carlisle, Brightly, 36. It has been held by this court at when state questions have been disposed of by the appropriate state authorities, it is not the province of this court o interfere, and there is no basis for the suggestion of any vio ation of the Constitution of the United States; the denial 134 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S, of due process of law; or deprivation of any right, privilege, or immunity secured to him by the Constitution or laws of the United States. Lambert v. Barrett, 157 U. S. 697; Ballinger v. Davis, 146 U. S. 314; Ex parte Kemmler, 136 U. S. 346; Caldwell v. Texas, 137 U. S. 692; Ex parte Converse, 137 U. S. 624; McNulty v. California, 149 U. S. 645. As to the appeal from the habeas corpus proceeding after a conviction in a state court, the validity of the proceeding will not be inquired into in habeas corpus proceedings, except in cases of peculiar urgency. The proper and usual remedy is by writ of error. Whitten v. Tomlinson, 160 U. S. 238. Except in peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the State; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court. Ex parte Royall, 117 U. S. 241; Ex parte Fonda, 117 U. S. 516; Duncan v. McCall, 139 U. S. 449; Wood v. Brush, 140 U. S. 278; Jugiro v. Brush, 140 U. S. 291; Cook v. Hart, 146 U. S. 183; Ex parte Frederick, 149 U. S. 70; New York v. Eno, 155 U. S. 89,Pepkt v. Cronan, 155 U. S. 100; Bergemann v. Backer, 157 U. S. 655. In re Grice, 79 Fed. Rep. 635, was reversed in Baker v. Grice, 169 U. S. 284. There have been some cases such as In re Loney, 134 U. S. 372; In re Neagle, 135 U. S. 1, but they are exceptional. This case presents no circumstances to justify a departure from the rule. Davis v. Burke, 179 U, S. 399; Minnesota v. Brundage, 180 U. S. 499; Reid v. Jones, 187 U. S. 153; M v. Colorado, 187 U. S. 137. Mr. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. Although these are separate cases, coming from different courts, we shall consider them together, for the same procee ings are challenged in each. HOWARD v. FLEMING. 135 191 U. S. Opinion of the Court. We premise that the trial was had in a state court, and therefore our range of inquiry is not so broad as it would be if it had been in one of the courts of the United States. The highest court of the State has affirmed the validity of the proceedings in that trial, and we may not interfere with its judgment unless some right guaranteed by the Federal constitution was denied and the proper steps taken to preserve for our consideration the question of that denial. The first contention demanding notice is that the indictment charged no crime. As found it contained three counts, but the two latter were abandoned, and therefore the inquiry is limited to the sufficiency of the first. That charged a conspiracy to defraud. There is in North Carolina no statute defining or punishing such a crime, but the Supreme Court held that it was a common law offense, and as such cognizable in the courts of the State. In other words, the Supreme Court decided that a conspiracy to defraud was a crime punishable under the laws of the State, and that the indictment suffi-ciently charged the offense. Whether there be such an offense is not a Federal question, and the decision of the Supreme Court is conclusive upon the matter. Neither are we at liberty to inquire whether the indictment sufficiently charged the offense. Caldwell v. Texas, 137 U. S. 692, 698; Davis v. Texas, 139 U. S. 651, 653; Bergemann v. Backer, 157 U. S. 655. Again, it is contended that the defendants were denied the equal protection of the laws, in that the sentence was more severe than ever before inflicted in North Carolina for a like offense, and was cruel and unusual; in that two were given ten years and the third only seven years’ imprisonment, and a o in that they were sentenced to imprisonment in the peni-entiary instead of to hard labor on the public roads. No case of a similar offense is cited from the judicial reports of orth Carolina, and the Supreme Court in its opinion refers o t e crime as “a fashion of swindling, which has doubtless een little practiced in this State.” That for other offenses, W c may be considered by most, if not all, of a more grievous 136 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. character, less punishments have been inflicted does not make this sentence cruel. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one. Swindling by means of a pretended gold brick is no trifling crime, and a conspiracy to defraud by such means does not commend itself to sympathy or leniency. But it is unnecessary to attempt to lay down any rule for determining exactly what is necessary to render a punishment cruel and unusual or under what circumstances this court will interfere with the decision of a state court in respect thereto. It is enough to refer to In re Kemmler, 136 U. S. 436, in which these questions were discussed, and to say that a sentence of ten years for an offense of the nature disclosed by the testimony, especially after it has been sustained by the Supreme Court of a State, does not seem to us deserving to be called cruel. If the effect of this sentence is to induce like criminals to avoid its territory, North Carolina is to be congratulated, not condemned. Doubtless there were sufficient reasons for giving to one of the conspirators a less term than the others. At any rate, there is no such inequality as will justify us in setting aside the judgment against the two. So far as respects the sentence of the defendants to the penitentiary instead of to work on the public roads, section 4, chap. 355, pp. 630, 631, Laws, N. C., March 7, 1887, in terms warrants it, for that provides that when the judge presiding is satisfied that there is good reason to fear an attempt to release or injure any person convicted of any of the offenses, for which sentences to work on the public roads may be im posed, it shall be lawful for him to sentence to imprisonment in the penitentiary. It is true there is no recital of any sue reason to fear, but we cannot hold in the face of the decision of the Supreme Court of the State that the omission of sue recital invalidates the judgment. Again, it is said that there was not due process, because t e trial judge refused to instruct the jury on the presumption o innocence. He did charge that the guilt of the accused mus HOWARD v. FLEMING. 137 191 U. S. Opinion of the Court. be shown beyond a reasonable doubt, and that on a failure in this respect it was the duty to acquit. He also explained what is meant by the term “ reasonable doubt.” The Supreme Court sustained the charge. Of course, that is a decision of the highest court of the State that in a criminal trial it is sufficient to charge correctly in reference to a reasonable doubt and that an omission to refer to any presumption of innocence does not invalidate the proceedings. In the face of this ruling as to the law of the State, the omission in a state trial of any reference to the presumption of innocence cannot be regarded as a denial of due process of law. These are the principal matters presented by counsel. Some of them were argued elaborately both in brief and orally; especially that in reference to the absence of any statute providing for the punishment of conspiracy, and the alleged absence of any common law offense of that nature. We have not deemed it necessary to review the various authorities, or enter upon any discussion of the matter, because we are of opinion that the decision of the Supreme Court of the State in reference thereto is conclusive upon us. It does not appear that the Federal character of the questions was presented to the Supreme Court of the State, although in the opinions of the Supreme Court the questions themselves were fully discussed. But in the absence of any claim to protection under the Federal Constitution, we are compelled to hold that we have no jurisdiction in the case coming from the Supreme Court of the State, and the writ of error will be » Dismissed. he same questions were presented in the habeas corpus case, and as that comes to us from a Federal Court we have jurisdiction, and in that case the judgment will be Affirmed. The motions in respect to change of custody of the defend- 138 191 U. S. OCTOBER TERM, 1903. Statement of the Case. ants will, in view of the conclusion on the merits of the cases, be denied. Mr. Justice Harlan concurs in the result. SMITH v. INDIANA. ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA. No. 81. Argued October 22, 23,1903.—Decided November 16, 1903. The extent of the power of a public officer to question the constitutionality of a state statute as an excuse for refusing to enforce it is purely a local question. Huntington v. Worthen, 120 U. S. 101. The jurisdiction of this court can only be invoked by a party having a personal interest in the litigation. Where a public officer of a State who has no interest in the controversy except as such officer tests the constitutionality of a state statute purely in the interests of third parties, by a suit in the state courts and a judgment has been rendered against him by the highest court of the State, a writ of error from this court to revise such judgment will not lie. The fact that costs were rendered against him personally in the state court will not give this court jurisdiction in such case. This was a petition filed in the Circuit Court of Marion County by the State, upon the relation of Martha and Benjamin Lewis, against the auditor of Marion County for a writ of mandamus to compel the defendant, in his official capacity, to allow an exemption of a mortgage of $500 upon a lot of land in Indianapolis owned by the relators, and that the same be deducte from the value of such lot. The petition was based upon an act passed by the Gener Assembly March 4, 1899, the first section of which declares: “That any person being the owner of real estate liable for taxa tion within the State of Indiana, and being indebted in any sum, secured by mortgage upon real estate, may have amount of such mortgage indebtedness, not exceeding seven hundred dollars, existing and unpaid upon the first day o SMITH v. INDIANA. 139 191 U. S. Argument for Plaintiff in Error. April of any year, deducted from the assessed valuation of mortgage premises for that year, and the amount of such valuation remaining after such deduction shall have been made shall form the basis for assessment and taxation for said real estate for said year.” An alternative writ having been issued, defendant interposed a general demurrer, which was sustained by the court, and the relators declining to plead further, judgment was entered against them. Upon appeal to the Supreme Court, the action of the court below was reversed, the law held to be constitutional and the cause remanded. 158 Indiana, 543. Thereupon the defendant made formal return to the writ alleging the unconstitutionality of the act, both under the State and Federal Constitutions, to which relators demurred. The demurrer was sustained, and a judgment entered for a peremptory mandamus commanding the defendant to allow the exemption, and to deduct from the assessed valuation of the real estate the amount of the mortgage, $500, and also that relators recover from the defendant their costs, which, however, appear never to have been taxed. This judgment was subsequently affirmed by the Supreme Court upon the authority of its opinion upon the previous appeal, and a writ of error sued out from this court. Mr. Horace E. Smith, with whom Mr. Roscoe 0. Hawkins was on the brief, for plaintiff in error : There is a Federal question ; the Constitution of the United States guarantees to each and every citizen the equal protection of the laws, and prohibits any State from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or which deprives them of life, liberty or property, without due process of law, or which denies to any citizen within its jurisdiction the equal protection of the law. 14th Amendment, U. S. Const. This provision applies to and covers all questions of unequal taxation. Railroad Tax Cases, 13 Fed. Rep. 722, 732; Nash- 140 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191U. S. ville, etc., Ry. v. Taylor, 86 Fed. Rep. 168, 179; Railroad and Telephone Cos. v. Board, 85 Fed. Rep. 302, 303, 317; Fraser v. McConway, 82 Fed. Rep. 257; Davenport v. Cloverport, 72 Fed-Rep. 689; Myers v. Shields, 61 Fed. Rep. 713. The laws require, therefore: 1. That the General Assembly shall provide a law for assessment and taxation; 2. That the law must provide for a uniform and equal rate of assessment and taxation; 3. That such law shall prescribe such regulations as shall secure a just valuation, for taxation, for all property, both real and personal; 4. Excepting such only for (a) municipal, (6) educational, (c) literary, (d) scientific, (e) religious, or (/) charitable purposes, as may be exempted by law, but the provision in the Constitution that “ all property, both real and personal,” shall be taxed, precludes exemption by the Legislature of any property from taxation. Indianapolis v. Sturdevant, 24 Indiana, 391; 25 Am. & Eng. Enc. Law, p. 156, note; Memphis, etc., Ry. Co. v. Gaines, 97 U. S. 697; Trustees M. E. Church v. Ellis, 38 Indiana, 3; Memphis, etc., Ry. Co.n. Gaines, 3 Tenn. Ch. 604; Ellis v. Louisville Ry. Co., 8 Baxt. Tenn. 530; State v. Hannibal, etc., Ry., 75 Missouri, 208; New Orleans v. Lafayette Ins. Co., 28 La. Ann. 756; Chattanooga v.. Nashville, etc., Ry. Co., Lea, Tenn. 651. If the constitutional provision by its terms permits exemption, then, within the limits of its provisions, exemptions may be made by law, by the Legislature, but no exemption can be made outside of the limits specified. State ex rel. Tiemanv. Indianapolis, 69 Indiana,. 375; Chesapeake, etc., Ry. Co. n. x ler, 19 W. Va. 408; Hogg v. Mackay, 28 Oregon, 880; 8W Rep. 779; 19 L. R. A. 77. . Any law exempting either persons or property m strictly construed and it has been settled that this Pr®vlS1^ must be so construed. Trustees M. E. Church v. F w, Indiana, 3, 8; Read v. Yeager, 104 Indiana, 195, Con m Cambridge, 58 Indiana, 130; City of South Bend v. 69 Indiana, 344; State ex rel. v. City of Indianapolis, n ana, 375; Warner v. Curran, 75 Indiana, 309; Orr v. « SMITH v. INDIANA. 141 191 U. S. Argument for Plaintiff in Error. Indiana, 86; Indianapolis v. McLean, 8 Indiana, 328; Indianapolis v. Grand Lodge, 25 Indiana, 518,521; 25 Am. & Eng. Enc. Law, p. 157. The burden is also on him who claims the exemption, 25 Am. & Eng. Enc. Law, p. 159, and his pleading must set out the facts that exempt him. Cairo, etc., Ry. Co. v. Parks, 32 Arkansas, 131; Appeal Tax Cases v. Rice, 50 Maryland, 302, 312. The test in every instance of exemption is the use. Travelers Ins. Co. v. Kent, 151 Indiana, 349, 353; State er rd. Tieman v. Indianapolis, 69 Indiana, 375; 25 Am. & Eng. Enc. Law, pp. 166, note, 167, 168. The act violates both the Constitution of the State of Indiana and the Fourteenth Amendment: 1. The lack of constitutional uniformity and equality in the rate of assessment and taxation; 2. It is a special law for the assessment of taxes for state, county, township and road purposes; 3. It grants to one class of citizens privileges and immunities which, upon the same terms, will not equally apply to all citizens; 4. It exempts from taxation realty not held for municipal, educational, literary, scientific, religious or charitable purposes. This method of valuation is illegal and in violation of the Constitution and rules laid down by the courts. Cooley’s Const. Lim (6th ed.) 608; 2 Kent Com. 231; Bright v. McCulloch, 27 Indiana, 223; Cleveland, etc., R. R. Co. v. Backus, 133 Indiana, 513; Willis v. Crowder, 134 Indiana, 515. The law is special and violative of sec. 2, art. IV, of the state constitution as it discriminates against unincumbered real estate. There is no separate estate in lands mortgaged created by the mortgage. A mortgage conveys no estate in the lands mortgaged, but simply creates a lien. Sec. 1099, Burns, 1901; Reasoner v. Edmunson, 5 Indiana, 393; Francis v. Porter, 7 Indiana, 213; Norton v. Noble, 22 Indiana, 160; Grable v. Mc-Culloh, 27 Indiana, 472; Fletcher v. Holmes, 32 Indiana, 497. he mortgagee class are favored to the exclusion of other ,e tors and this is condemned by the Constitution. Wash-vnqton University v. Rouse, 8 Wall. 444; Knowlton v. Supervisors of Rock Co., 9 Wisconsin, 421; Van Riper v. Pearson, 40 142 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 u. S. N. J. L. 1, 9; State v. Hammar, 42 N. J. L. 435, 440; Randolph v. Wood, 49 N. J. L. 85; Lippman v. The People, 175 Illinois, 101, 106; Ex parte Jentzsch, 32 L. R. A. 664, 665; Darcy v. San José, 104 California, 642; Pasadena v. Stimson, 91 California, 238; Cooley’s Const. Lim. 393, 395; Bank of the State v. Cooper, 2 Yerg. 599; Officer v. Young, 5 Yerg. 320; Griffin v. Cunningham, 20 Grat. 31 ; Arnold v. Kelley, 5 W. Va. 446; Lewis v. W»b, 3 Greenl. 326 ; State v. Ellet, 47 Ohio St. 90 ; State v. Hinman, 65 N. H. 103; State v. Sheriff, 48 Minnesota, 236; Hogg v. Mackay, 23 Oregon, 339 ; State v. Gardner, 58 Ohio St. 599 ; Horn v. Sheridan, 137 Indiana, 128, distinguished. The effect of the act is to exempt from taxation, property not coming within the classes privileged by the state constitution. Any law which indirectly produces an exemption is void. That cannot be accomplished indirectly which the Constitution declares shall not be done directly. Huntington n. Worthen, 120 U. S. 97. The question at issue has already been decided. State v. Indianapolis, 69 Indiana, 367 ; Warner v. Curran, 75 Indiana, 309 ; People v. Eddy, 43 California, 431 ; 5. C., 13 Am. Rep. 143; Hogg v. Mackay, 19 L. R. A. 177; S. C., 31 Pac. Rep. 779. For cases as to absolute inhibition against exemptions not specifically enumerated, see Huntington v. Worthen, 120 U. S. 97; Crawford v. Linn Co., 11 Oregon, 494; Chesapeake & 0. R. R. Co. v. Miller, 19 W. Va. 408; Zanesville v. Richards, 5 Ohio St. 589; People v. McCreery, 34 California, 432; Fletcher v. Oliver, 25 Arkansas, 289; Nashville & K.R.R. Co. n. Wilson Co., 89 Tennessee, 597 ; Barber v. Louisville Board of Trade, 82 Kentucky, 645; Jones v. Mayor, 25 Arkansas, 289; Life 4sso-ciation v. Board of Assessors, 49 Missouri, 512. The state cannot tax mortgages held by non-residents at the locus o te mortgaged property. Such debts must be taxed where t e holder resides. Murray v. Charleston, 96 U. S. 432, Earl, 1 Nevada, 397; Myers v. Seaberger, 45 Ohio St. 23 ; Arapahoe Co. Comrs. v. Cutter, 3 Colorado, 350, Peop Eastman, 25 California, 621 ; State v. Lantz, 53 Marylan , SMITH v. INDIANA. 143 101U. S. Argument for Plaintiff in Error. A debt, for purposes of taxation, is situated at the domicile of the creditor, although secured by mortgage upon real estate situated in another State. This is the general rule. Ex parte Clark, 100 U. S. 401; State Tax on Foreign Held Bonds, 82 U. S. 15; Sells v. Holder, 12 Fed. Rep. 668; San Francisco v. Mackey, 22 Fed. Rep. 602; Cooley on Taxation, 21, 22, 63; 1 Desty on Taxation, p. 62; Foresman v. Byrnes, 68 Indiana, 247; Senour, Treas., v. Ruth, 140 Indiana, 318; Baltimore v. Hussey, 67 Maryland, 112; State v. Vansyckle, 49 N. J. L. 366; State v. Darcy, 2 L. R. A. 350; 51 N. J. L. 140; Bradley v. Bauder, 36 Ohio St. 28; Grant v. Jones, 39 Ohio St. 506; Worthington v. Sebastain, 25 Ohio St. 1; Holland v. Comrs., etc., 27 L. R. A. 797; St. Paul v. Merritt, 7 Minnesota, 258; Liverpool, etc., v. Board, 44 La. Ann. 760; Goldgart v. People, 106 Illinois, 25; People v. Eastman, 25 California, 603; People v. Smith, 88 N. Y. 577; Territory v. Del. Tax List, 24 Pac. Rep. 182 (Arizona); Comm. v. R. R. Co., 27 Gratt. 344; Holland v. Commissioners, 27 L. R. A. 797; Detroit v. Board of Assessors, 91 Michigan, 78, distinguished. The Indiana exemption and deduction statute differs from other exemption statutes in that it deducts a fixed amount for debts. For statutes of other states see Conn. R. S. 1888, § 3854; New Jersey Rev. St. vol. 3, 3298; New York, Birdseye’s R. S. 2d ed. Tax Law, vol. 3, 3094; Michigan, Acts of 1893, p. 288; Illinois, Starr & Curtis, An. Stat. 1896, ch. 120, § 27; Iowa, Code, 1897; Oregon, An. Stats. 2d ed., 1892, § 2752; Kansas, Stats. 1899, §7165; Minnesota, Stats. 1894, § 1526; Nebraska, Stats. 1901, § 4308; Nor. Dakota Stats. 1887, § 1543, clause 6; So. Dakota, R. S. 1896, § 2135; California, Deering’s n‘ Codes & Stats. 1885, § 3650; Washington, Ballinger’s An. Codes & Stats. 1897, § 1657. As to Indiana, see § 6332, Rev. St. 1881, for old act held con-si utional in Florer v. Sheridan, 137 Indiana, 28, and new act 01 1RQ1 7 77 > pp. 199-291. Indiana does not make mortgages ea f°r purposes of taxation as Oregon does and this distin-^ls es &c. Assn. v. Multonomah County, 169 U. S. 421; 144 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 p, g, Crawford v. Linn County, 110 Oregon, 482, and other cases on defendant in error’s brief. The granting of the deduction is the equivalent of giving of a credit for so much tax or the drawing of a warrant and whether the officer has a personal interest in the question, or if the nature of the office is such as to require him to raise it, he may make defense and it is his duty to do so. Denman v. Broderick, 111 California, 97; Norman v. State Board, 93 Kentucky, 537; Von Schmidt v. Wilbur, 105 California, 151; Smith v. Broderick, 107 California, 644. Upon the question of whether a ministerial officer can defend a mandamus case on the ground of the unconstitutionality of a law the cases are in irreconcilable conflict. 19 Enc. Law, p. 764. It is always a question of the particular case. People ex ret. v. Salomon, 54 Illinois, 39, is not a mandamus case at all, but a case involving a contempt proceeding. But, admitting it so holds, yet in People v. Salomon, 46 Illinois, 333; People v. Miner, 46 Illinois, 384; Madison Co. v. People, 58 Illinois, 456; People v. Thompson, 155 Illinois, 451, exactly the opposite doctrine was held. Franklin Co. v. State ex ret., 24 Florida, 55, is exactly contrary to McConihe v. State, 17 Florida, 238, and State v. Hooker, 36 Florida, 358. The State cites twelve cases from eight States, but of these eight States five have also decided the same question the other way; these are Louisiana, Illinois, Nebraska, West Virginia and Florida. The Illinois and Florida cases are cited above. The others are: State v. New Orleans, 42 La. 92; State v. Judge, 5 La. Ann. 756; State v. Moore, 40 Nebraska, 854; State v. Wyoming Co., V! W. Va. 672. But arrayed agains this doctrine are some sixteen state and Federal court ecls^ in the following cases: Hoover.n. McChesney, 81 Fed. ep. > Huntington v. Worthen, 120 U. S. 97,101; State v. Stout, ana, 143; Denman v. Broderick, 111 California, 97, Br . v. Hoke, 101 California, 101; Smith v. Judge, 17 California, Patty v. Colgan, 97 California, 251; Maynard v. Boar , Michigan, 226; Public Schools v, Allegheny Co., 20 arya > SMITH v. INDIANA. 145 191U. S. Argument for Defendant in Error. 449; State v. Baltimore Co.,’29 Maryland, 516; Police Coroners v. Louisville, 3 Bush (Ky.), 597; Auditor v. Hay craft, 14 Bush (Ky.), 384; State v. Medaris, 1 Kansas, 90; Savannah v. State, 4 Georgia, 26; State v. Mason, 153 Missouri, 23; State v. McKenney, 5 Nevada, 194; Humboldt Co. v. Churchill, 6 Nevada, 30; Pell v. Newark, 40 N. J. L. 71; Lakewood Tp. v. Brick Tp., 55 N. J. L. 275; Peafle v. State Board &c., 129 N. Y. 360; McDermott v. Dennie, 6 N. Dak. 278; State v. Mitchell, 31 Ohio St. 5^2; State v. Whitworth, 8 Lea (Tenn.), 594; Williams v. Taylor, 83 Texas, 670; State v. Saux Co., 62 Wisconsin, 376. The true doctrine is that every case stands upon its own facts. Here the auditor, a public officer, is in the attitude of defending the public revenue against dissipation and unlawful credit under an unconstitutional law. This is a case where the auditor not only may but must defend, and upon this very ground. Mr. Cassius C. Hadley, with whom Mr. Charles W. Miller, Attorney General of the State of Indiana, Mr. L. G. Rothschild and Mr. William C. Geake, were on the brief, for defendant in error: The decisions of the highest state court on state constitution and statutes are controlling in the Supreme Court of the United States. The only question in this court is whether the statute conflicts with the Federal constitution. West River Bridge Co. v. Dix, 6 How. 507; Bucher v. Cheshire Railroad, 125 • S. 555; Bell’s Gap Railroad v. Pennsylvania, 134 U. S. 232; evns v. Monson, 151 U. S. 545; Adams Express Co. v. Ohio, ^5^* 194; Long Island Water Supply Co. v. Brooklyn, 166 • • 685, Merchants Bank v. Pennsylvania, 167 U. S. 461; Pasmussen v. Idaho, 181 U. S. 198; Williams v. Parker, 188 U.S. 491. 0 question is presented for the determination of this court. This court will not listen to objections made to the consti-u lonality of a statute by a party whose rights it does not vol. cxci—IQ 146 OCTOBER TERM, 1903. 191 U.S. Argument for Defendant in Error. affect, and who has no interest in defeating it. Cooley’s Const. Lim. 6th ed. 196; Clark v. Kansas City, 176 U. S. 114; Red River Valley Bank v. Craig, 181 U. S. 548; Supervisors v. Stanley, 105 U. S. 305; Lampasas v. Bell, 180 U. S. 27Q; McNultay. Lochridge, 141 U. S. 327; Ludeling v. Chaffe, 143 U. S. 301; Giles v. Little, 134 U. S. 645; Jones v. Black, 48 Alabama, 540; Dejarnette v. Haynes, 23 Mississippi, 600; Dorman v. State, 34 Alabama, 216, 249. In order to give this court jurisdiction to review a judgment of a state court against a title or right set up or claimed under a statute of, or an authority exercised under, the United States, that title or right must be one of the plaintiff in error, and not of a third person only. Owings v. Norwood, 5 Cranch, 344; Montgomery v. Hernandez, 12 Wheat. 129, 132; Henderson v. Tennessee, 10 How. 311; Hale v. Gaines, 22 How. 144, 160; Long v. Converse, 91 U. S. 105, and see as to state courts, Wellington, Petitioner, 16 Pick. 87; Gustavel v. State, 153 Indiana, 613; City of Kansas City v. Union Pac. Ry. Co., 59 Kansas, 427. Plaintiff in error, therefore, has no right to prosecute his writ of error in this court, since he does not show that he has any just cause for complaint. A ministerial officer cannot adjudge a law unconstitutional on the ground that it may affect the rights of others, and refuse to perform his plain duties thereunder, and excuse himself by attacking the constitutionality of the act. Commissioners v. Franklin County, 24 Florida, 55, 63; State v. Shake speare, 41 La. Ann. 156; Bassett v. Barbin, 11 La. Ann. 672, Steele v. Auditor, 47 La. Ann. 1676, 1696; State v. Stevenson, 18 Nebraska, 416, 421; State v. Douglas County, 18 Nebraska, 506; Smyth v. Titcomb, 31 Maine, 272, 286; Tremont 8cAoo District v. Clark, 33 Maine, 82; Wright v. Kelly, 43 Pac. (I a ° 565; State v. Buchanan, 24 W. Va. 362, 383; Thoreson v. aminers, 19 Utah, 18, 31. Plaintiff in error has no standing in this, court, and as n right to invoke the power of this court to aid him *n ,, to obey the law enacted by the legislature, and decree y SMITH v. INDIANA. 141 191 u, S. Argument for Defendant in Error. highest judicial body of his state to be a valid law for his guidance and authority. The only question before this court is whether said act is repugnant to the Fourteenth Amendment of the Federal constitution, and it is clear that it does not abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the law. The State may distinguish, select and classify objects of legislation, and necessarily this power must have a wide range of discretion. Magoun v. Illinois Trust & S. Bank, 170 U. S. 283, 292; Kentucky R. R. Tax Cases, 115 U. S. 321, 337; Railway Co. v. Mackey, 127 U. S. 205; Railway Co. v. Beckwith, 129 U. S. 26; Railway Co. v. Herrick, 127 U. S. 210; Duncan v. Missouri, 152 U. S. 377; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232; Pacific Exp. Co. v. Seibert, 142 U. S. 339, 351. The act does not violate the constitutional rule of uniformity. Edwards v. People, 88 Illinois, 340,347; People v. Barker, 155 N. Y. 330, 342; S. C., 49 N. E. Rep. 940. As to uniformity the state court said that the act in question purports to be a law that is uniform throughout the State, and, as it permits all persons to take advantage of it when their circumstances bring them within its operation, it does not violate that requirement of the constitution. Cleveland, etc., R. Co. v. Backus, 133 Indiana, 513; 18 L. R. A. 729; Pittsburgh, de., R. Co. v. Backus, 133 Indiana, 625; Gilson v. Board, etc., 128 Indiana, 65; 11 L. R. A. 835. As to the exact nature of the obligation and liability of taxes, see Thompson v. McCorkle, 136 Indiana, 484, 501; Blackwell on Tax Titles, 3ded. 547; §§ 8431, 8571, 8590, 8591, ’ ®urn s 8. 190; Abbott v. Edgerton, 53 Indiana, 196. ortgages are defeasible sales, they are more than mere hens. Savings Bank v. Multonomah County, 169 U. S. 421, 428, 429. 148 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. The constitutionality of the exemption law of Indiana was apparently the only question raised by the parties. It was argued elaborately, both in the Circuit and Supreme Court of the State, and was finally affirmed by a majority of the latter court. The power of the county auditor, who is charged by law with the duty of making the assessment, to refuse to allow the relators their exemption upon the ground of the unconstitutionality of the act, does not appear to have been raised in the state courts, and is not noticed in either opinion of the Supreme Court. In fact, the celerity of the proceedings and the admissions of counsel indicate that the suit was begun and carried on for the purpose of testing the constitutionality of the law, and that the litigation was at least not an unfriendly one. We have no doubt of the power of state courts to assume jurisdiction of the case if they choose to do so, although there are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that in his opinion it is repugnant to the Constitution. It is but just to say, however, that the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist. In any event, it is a purely local question, and seems to have been so treated y this court in Huntington v. Worthen, 120 U. S. 97, 101. . Different considerations, however, apply to the jurisdiction of this court, which we have recently held can only be invo e by a party having a personal interest in the litigation, follows that he cannot sue out a writ of error in behalf of t r persons. Tyler v. Judges of Court of Registration, 179 • • 405; Clark v. Kansas City, 176 U. S. 114; Turpin v. Lemon, U. S. 51; Lampasas n. Bell, 180 U. S. 276; Ludelingv- alie> 143 U, S. 301; Giles v. Little, 134 U. S. 645. These authorities SMITH v. INDIANA. 149 191U. S. Opinion of the Court. control the present case. It is evident that the auditor had no personal interest in the litigation. He had certain duties as a public officer to perform. The performance of those duties was of no personal benefit to him. Their non-performance was equally so. He neither gained nor lost anything by invoking the advice of the Supreme Court as to the proper action he should take. He was testing the constitutionality of the law purely in the interest of third persons, viz., the taxpayers, and in this particular the case is analogous to that of Caffrey v. Oklahoma, 177 U. S. 346. We think the interest of an appellant in this court should be a personal and not an official interest, and that the defendant, having sought the advice of the courts of his own State in his official capacity, should be content to abide by their decision. It is true there seems to have been a personal judgment in form against the defendant for costs, the amount of which, however, has never been taxed, and when taxed and paid would probably be reimbursed to him. It was formerly held, under the practice which disqualified interested witnesses, that a liability for costs was sufficient to render a witness incompetent. 1 Greenl. Ev. secs. 401, 402. But it seems to be well settled that even if the fact that costs are awarded against a party, gives him an appealable interest, of which there appears to be considerable doubt, Travis v. Waters, 12 Johns. 500; Reid v. Vanderheyden, 5 Cow. 719, 736, it does not give him an appealable interest in the judgment upon the merits, but limits him to the mere question of costs. Studa-baker v. Markley, 7 Ind. App. 368; Hone v. Schaick, 7 Paige, 221, Card v. Bird, 10 Paige, 426; Cuyler v. Moreland, 6 Paige, <3. If plaintiff in error objected to this judgment for costs he might have moved to modify it in that particular. Not aving done so, his appeal is presumptively from the' judgment on the merits, American Ins. Co. v. Gibson, 104 Indiana, 36,342, and as his individual rights were not affected by such judgment, he is not entitled to an appeal. he fact that the various statutes fixing the jurisdiction of 150 OCTOBER TERM, 1903. Syllabus. 191 p, s. the Circuit Courts of the United States, and of this court, which from the original Judiciary Act of 1789 have, where the amount involved was made the test of jurisdiction, uniformly used the words “exclusive of costs,” would indicate, so far as the Federal courts are concerned, that a mere judgment for costs could not ordinarily be made the basis of an appeal to this court. For the reasons above given, the appellant did not have the requisite interest to maintain this appeal, and it is therefore Dismissed. Mr. Justice Harlan and Mr. Justice White are of opinion that the plaintiff in error was entitled to prosecute the present writ, and that the court should determine the case upon its merits. CITY OF JOPLIN v. SOUTHWEST MISSOURI LIGHT COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No. 32. Argued October 20,1903.—Decided November 16, 1903. Restraints upon governmental agencies will not be readily implied. There are presumptions against the granting of exclusive rights and agains limitations upon the powers of government. By the statute of 1891, cities in Missouri may erect and operate their own electric light plants, or they may grant the right to persons or corpora tions to erect and operate such plants for not exceeding a period of twen y years. The city of Joplin by ordinance adopted subsequent to the s ute, granted such right for twenty years to a corporation whic erec and has ever since operated the plant. The ordinance conf erre ng » exacted obligations, fixed rates and provided for its written accep a and the corporation so accepted it. By a later ordinance t e ci y vided for the issue of bonds to build its own plant. In an action brought by the Light Company to restrain the erec ion o plant during the continuance of the twenty year term, on the S1™*® the ordinance violated the Federal constitution in that it impaire * ligation of the contract existing under the ordinance granting e chise. JOPLIN v. LIGHT COMPANY. 151 191 gt Statement of the Case. Held that as such ordinance did not provide that the city would not erect its own plant no such provision could be implied. Held that the fact that cities could elect under the statute of 1891 either to erect their own plants or grant franchises, could not in case of their election to grant the franchise be construed as an implied contract not to erect their own plants during the period for which the franchise was granted. Bill in equity to restrain the appellant from supplying its inhabitants with incandescent lights or other electric lighting in competition with the appellee. The city of Joplin is a municipality of the State of Missouri; the appellee is a corporation of said State, and the jurisdiction of the Circuit Court was invoked on the ground that the action of the city impaired the obligation of the contract existing between it and the appellee, in violation of the Constitution of the United States, and hence the appeal directly to this court. A preliminary injunction was granted. 101 Fed. Rep. 23. It was made perpetual upon final hearing, and a decree was entered enjoining the city “from supplying or furnishing to the inhabitants, residents or any other person, firm or corporation within said city, or any addition thereto or extension thereof, electric lights, either incandescent or arc, or in any other form or manner, for commercial or private lighting, for and during the full term” of the grant to the predecessors and assignors of appellee, to wit, the term of twenty years from and after October 7, 1891. 113 Fed. Rep; 817. A statute of Missouri, Laws, 1891, April 2, p. 60, authorizes cities to erect, maintain and operate electric light works, to light the streets, and supply the inhabitants with light for their own use, and to establish rates therefor. Or they may, the statute provides, “grant the right to any person or persons or corporation to erect such works . . . upon such terms as may be prescribed by ordinance, provided that such right • • shall not extend for a longer period than twenty years. Subsequently to and jn pursuance of this statute t e city by ordinance, October 7, 1891, granted the right to 152 OCTOBER TERM, 1903. Argument for Appellant. 191 U; g, erect and maintain an electric light plant to certain persons, naming them, their successors and assigns, for a period of twenty years. The plant was erected at considerable expense, and has ever since been maintained and operated. The appellee is the successor of the original grantees. The ordinance conferred rights and exacted obligations, and fixed, besides, the rates to be charged. It also provided for its written acceptance within ten days after its passage and the commencement of the work within sixty days. It was accepted. Subsequently, and on March, 1899, the city, acting in pursuance of and in the manner provided in certain ordinances, issued bonds to the amount of $30,000, “for the purpose of erecting an electrical light plant to be owned, controlled and operated by the city,” and by the means obtained thereby constructed electrical works, erected poles and wires, established a schedule of rates, and entered into the business of commercial electrical lighting in competition with appellee. The bill alleged that the appellee was the owner of real and personal property within the city, which is assessed by the city for municipal taxation, and that appellee is compelled by reason of such taxation "to aid and assist in operating and maintaining defendant’s (the city’s) electric plant and business as a rival and competing one” with appellee’s electrical plant and business. Mr. C. H. Montgomery, with whom Mr. Samuel W. Moore was on the brief, for appellant: The franchise granted in the ordinance was not exclusive nor does it contain any obligation on the part of the municipality not to compete with the owner of the franchise in commercia lighting or otherwise; nor is the use of the streets grante by the franchise an exclusive one. The ordinance amoun to a license to use the streets and that is all. One c aim ing the grant of an exclusive franchise from a municipa 1 y must be able to point out the express terms by which t eex elusive grant is created. The rights of the city and its citizens JOPLIN v. LIGHT COMPANY. 153 191 U S. Argument for Appellee. do not pass by uncertain or ambiguous language or by implication. Where a municipality is vested with certain powers, the law jealously guards their exercise and construes contracts of the nature now under consideration most favorably to the municipality. Bienville Water Co. v. City of Mobile, 95 Fed. Rep. 539; 175 U. S. 1; 186 U. S. 212; Skaneatales Water Warks Co. v. Skaneatales, 184 U. S. 354 ; Pearsall v. Railway Co., 161 U. S. 664; Charles River Bridge v. Warren Bridge, 11 Peters, 420; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142 ; Stein v. Water Co., 141 U. S. 67; New Orleans Water Works Co. v. Rivers, 115 U. S. 674 ; St. Tamany Water Works Co. v. New Orleans Water Works, 120 U. S. 64 ; Hamilton Gas Light Co. v. Hamilton, 146 U. S. 258; Thompson Electric Co. v.City of Newton, 42 Fed. Rep. 723 ; Lewis v. City, 75 Fed. Rep. 884 ; City of Brooklyn, 143 N. Y. 596 ; City of Austin v. Bartholamew, 107 Fed. Rep. 349 ; Newburyport Water Co. v. Newburyport, 103 Fed. Rep. 587. The power of the city of Joplin to erect and operate its own electric light plant and the power to grant to some person or corporation a franchise therefor are concurrent powers. The lower court erred in holding that the city in granting a franchise for the erection of an electric light plant thereby disabled itself from erecting and maintaining one of its own. Skaneatales W. W. Co. v. Skaneatales, supra; The Walla Walla Case, 172 U. S. 1; Los Angeles v. Water Co., 177 U. S. 588, and other cases on brief of defendant in error, distinguished. If the city of Joplin in granting complainant’s franchise thereby disabled itself from erecting an electric light plant of its own, then the lower court was without jurisdiction and should have dismissed the bill. Hamilton Gas Light Co. v. Hamilton, 146 U. S. 258; State v. Hamilton, 47 Ohio St. 52. Mr. J. McD. Trimble and Mr. John A. Eaton for defendant in error and appellee: The statute must be read into the ordinance or contract. Walker v. Whitehead, 16 Wall. 314. 154 OCTOBER TERM, 1903. Argument for Appellee. 191U. S. As to the implied provisions, that the city should not engage in competitive private lighting itself, the only rule for finding the true and entire contract is that the express provisions of the statute and contract shall be first considered, and then what is necessarily implied from such express provisions. Detroit Citizens St. R. R. Co. v. Detroit R. Co., 171 U. S. 48; Los Angeles v. Los Angeles City Water Co., 177 U. S. 558. While all implications, doubts and ambiguities are resolved against the grant or privilege claimed, this rule correctly applies to the grant of the power. When the grant is once conceded, the rule announced in the cases above cited is the settled one. Dillon on Municipal Corporations, 4th ed. §§ 451-459. The law implies duties and obligations in a contract from those which are expressed, and the implied duties and obligations are as much a part of the contract as those expressed. The Union Depot Co. v. The Chicago, K. & N. Ry. Co., 113 Missouri, 213, 1. c. 225; Bishop on Contracts, par. 241; 2 Parsons on Contracts, 6th ed. 514. And see The Walla Walla Case, 177 U. S. 588; Cortv. Lassard, 17 Oregon, 221; 5. C., 17 Am. St. Rep. 720; 22 Pac. Rep. 1054; United States v. Babbit, 1 Black. 55; Winecup v. Hughes, L. R. 6 C. P. 78, 84; Donahue v. Kittrell, 1 Cliff. 144; Massachusetts v. Rhode Island, 12 Peters, 723. In the exercise of its business or proprietary powers, the city of Joplin adopted the ordinance and entered into the contract contained therein. In fixing the maximum charge to be made for the lights, it contracted for the private advantage of t e inhabitants of the city. The purpose of such a contract is not to govern the inhabitants of the city, but to obtain a pn vate benefit for the city itself and its denizens. Illinois rus & Savings Bank v. Arkansas City, 76 Fed. Rep. 271, an cases cited p. 282; Zdbriskie v. R. R. Co., 23 Howard, 381. . The city does not propose to be an ordinary competitor to be an unusual competitor for the avowed purpose o r ceiving enough from its commercial lighting to pay or 1 public lights. JOPLIN v. LIGHT COMPANY. 155 191 U. S. Opinion of the Court. Courts may acquaint themselves with the persons and circumstances that are the subjects of the written agreement and place themselves in the situation of the parties who made the contract; view the circumstances as they viewed them, so as to judge of the meaning of the words, and of the correct application of the language to the thing described. Guarantee Co. v. Mechanics’ Sav. Bank & Tr. Co., 80 Fed. Rep. 766; Goddard v. Foster, 17 Wallace, 123, 143. The following fully support the right to an injunction in this suit: Walla Walla Water Co. v. City of Walla Walla, 60 Fed. Rep. 957; 172 U. S. 1; Westerly Water Works v. Town of Westerly, 75 Fed. Rep. 181; White v. City of Meadville (Pa.), 35 Atl. Rep. 695. A legislative act which impairs the obligation of an existing contract is void, as violative of the contract clause of the Constitution. New Orleans v. Bivers, 115 U. S. 674; St. Tamany Water Works Co. v. New Orleans, 120 U. S. 64; City of Los Angeles v. Los Angeles Water Co., 177 U. S. 558; Detroit v. Railway Co., 184 U. S. 368. Cases on brief of plaintiff in error distinguished. This court has, and the Circuit Court had jurisdiction. Vicksburg Water Works v. Mayor of Vicksburg, 185 U. S. 65; Riverside Ry. Co. v. Riverside, 118 Fed. Rep. 736; St. Paul Gas L. Co. v. St. Paul, 181 U. S. 142; City R. R. Co. v. Citizens’ R. R. Co., 166 U. S. 557. Mr. Justice McKenna, after stating the case, delivered the opinion of the court. The foundation of the suit is that the ordinances of March, 899, and the acts and conduct of the city in entering into competition with the complainant (appellee) impair the obligation of the contract impliedly arising from the ordinance of ctober 7, 1891, and the acceptance thereof by appellee. In o er words, it is contended that under the statute of the ate, which we have quoted, the city was given the power to 156 OCTOBER TERM, 1903. Opinion of the Court. 191 {J, g. construct an electrical plant and erect poles, etc., to “supply private lights for the use of the inhabitants of the city,” or it could grant that right “to any person or persons or corporation” upon such terms as might be prescribed by ordinance. It chose the latter, and granted to the assignors of appellee the right given by the statute and expressed it to be “in consideration of the benefits to be derived therefrom.” And it is hence contended that thereby the city contracted not to build works of its own, and that by doing so it violated section 10 of the Constitution of the United States, which provides that no State shall “pass any law impairing the obligation of a contract,” and also violated that clause of the Fourteenth Amendment of that instrument which provides that no State “shall deprive any person of property without due process of law.” It is by implication from the statute and the ordinance passed under it, not from the explicit expression of either, that the conclusion is deduced that the city is precluded from erecting its own lighting plant, and yet it is conceded that the grant to the appellee is not exclusive. That is, it is conceded the city has not exhausted its power under the statute by the grant held by appellee, but may make another to some other person than the appellee. In other words, that the city may make a competitor to appellee, but cannot itself become such competitor. The strength of the argument urged to support the distinction is in the consideration that competition by the city would be more effective than competition y private persons or corporations—indeed, might be destructive. The city, it is further urged, could be indifferent to profits and could tax its competitor to compensate losses. Butt is speculation and it may be opposed by speculation, and t ere are besides countervailing considerations. The limitation con tended for is upon a governmental agency, and restraints upon that must not be readily implied. The appellee concedes, as we have seen, that it has no exclusive right, and yet con en s for a limitation upon the city which might give it (the appe JOPLIN v. LIGHT COMPANY. 157 191 U. S. Opinion of the Court. lee) a practical monopoly. Others may not seek to compete with it, and if the city cannot, the city is left with a useless potentiality while the appellee exercises and enjoys a practically exclusive right. There are presumptions, we repeat, against the granting of exclusive rights and against limitations upon the powers of government. Many cases illustrate this principle, and some of them were decided in response to contentions similar to those made in the case at bar. In Skaneatales Water Works Co. v. Skaneatales, 184 U. S. 354, the village of Skaneatales, under statutes of the State of New York, granted to the water company the right to construct waterworks, and contracted with it to supply water to the village and its inhabitants for the period of five years. At the expiration of the term of the contract some difference arose about the terms of its continuance, and the village constructed an independent system of waterworks. A suit was brought by the water company to restrain the further construction of the works and their operation, and the company contended that under the statute of the State, by which the village granted to the company its franchises, the village had the election to construct works, or confer such power upon a private company like the water company, and having elected the latter, it impliedly contracted not to construct works of its own. In reply to this contention this court said (p. 363), by Mr. Justice Peckham: There is no implied contract in an ordinary grant of a franchise, such as this, that the grantor will never do any act y which the value of the franchise granted may in the future e reduced. Such a contract would be altogether too far-reaching and important in its possible consequences in the w&y of limitation of the powers of a municipality, even in matters not immediately connected with water, to be left to imp ication. We think none such arise from the facts detailed.” is true there was an element in that case which is not in a e case at bar. The village of Skaneatales had entered into a contract with the water company to take water from the 158 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. company. This contract had expired before the city constructed its works. It was not that contract, however, which was alleged to have been impaired, but that which the water company claimed to have been implied by reason of its organization and incorporation and in pursuance of the application made to and with the consent of the village authorities. The ultimate reliance, therefore, of the water company was that from the grant to it the village impliedly contracted not to construct works of its own. The similarity of the contention with that in the case at bar is apparent. In Bienville Water Supply Company v. Mobile, 175 U. S. 109; 186 U. S. 212, it was again decided that the granting of franchises to private persons to construct waterworks in a city does not preclude the city from afterwards erecting such works and supplying its inhabitants with water. Walla Walla v. Walla Walla Water Co., 172 U. S. 1, is notin opposition to these views. The city of Walla Walla was, by the statute incorporating it, empowered to erect waterworks or to authorize the erection of the same. In pursuance of this power it granted a franchise to the Walla Walla Company and contracted to take water from the company, reserving the right to avoid the contract under certain contingencies. But it was provided that: “Until such contract shall have been so avoided, the city of Walla Walla shall not erect, maintain or become interested in any waterworks except the ones herein referred to, save as hereinafter specified.” The con tract was in force at the time the suit was brought and the water company had substantially complied with all of its terms and conditions. The contract passed upon, therefore, was expressed and explicit. The power to make it was sustaine. In the case at bar restraint upon the power of the appe an city is claimed to be implied by the grant to the appe ee We think, for the reasons stated and upon the authorities ci e, such restraint cannot be implied. . Decree reversed and case remanded with directions to 'i$m the bill. ST. LOUIS HAY &c. CO. v. UNITED STATES. 159 191 U. S. Argument for Appellant. ST. LOUIS HAY AND GRAIN CO. v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No 41. Argued October 30, November 2,1903. —Decided November 16,1903. When a void but not illegal contract of sale has been performed on both sides, the vendor cannot recover on a quantum valebat less the amount already paid. The United States bought hay for a camp, providing that the quantity bought be decreased at its option, not exceeding twenty per cent, and if the troops should be wholly or in part withdrawn the contract should become inoperative to the extent of such reduction, and that deliveries were to begin within five days and proceed at daily rates of at least one sixtieth of the amount, or in such quantities and in such times afterward as might be designated by the quartermaster. The troops were withdrawn, orders were delayed beyond sixty days and a little less than the whole amount was ordered. The claimant protested and claimed damages but accepted payment for the whole without reserving any rights at the time. Held that there was no breach of contract by the United States even if it was still open to the claimants to demand damages in case of a breach, and if the setting up of the invalidity of the contract by the United States in answer to the demand would have opened the way to a.quantum valebat. The facts are stated in the opinion of the court. Mr. William E. Harvey and Mr. George A. King, with whom irJFfc B. King were on the brief, for appellant, cited 8» 09, 3744, Rev. Stat., and as to failure to sign contract, r v. United States, 95 U. S. 539; South Boston Iron Co. v. 524 118 U’ S' 37; M°nroe V‘ United States> 184 U. S. • e special contract was void for all purposes and the ppe ants were entitled to the quantum meruit. Filor v. ^ States 9 Wall. 45; Williams v. Bemis, 108 Massachu-tinn ’ n’ an .cases C^e(l- There was no accord and satisfac-5?- ir- bel°W cited Uniied States v. Bostwick, 94 U. S. SUite^r ^Brown> 4 Ct- of Clms- 223; Comstock v. United i 9 Ct. of Clms. 141; Savage v. United States, 92 U, S. 382. 160 OCTOBER TERM, 1903. Argument for United States. 191 u. S. But see contra, City of Memphis v. Brown, 20 Wall. 289; Cumber v. Wane, 1 Smith’s Leading Cases, 7th Am. ed. 595, notes, p. 604; Flockton v. Hall, 14 Q. B. Ad. & El. 380; Hall v. Flockton, 16 Q. B. Ad. & El. 1039. This case is governed by Piatt's Administrator v. United States, 22 Wall. 496; S. C., below, 10 Ct. of Clms. 163; Fire Ins. Assn. v. Wickham, 114 U. S. 564, 577; Baird v. United States, 96 U. S. 430; R. R. Companies v. United States, 104 U. S. 680, 687; S. C., below, 14 Ct. of Clms. 125, 144; 15 Ct. of Clms. 232, 245; Swift Co. v. United States, 105 U. S. 691; 111 U. S. 22; Cape Ann Granite Co. n. United States, 20 Ct. of Clms. 1, 14; The Gibbons and Clark cases, distinguished. In this contract time was of the essence. Hipwell v. Knight, 1 Yonge & Collyer Eq. Exch. 401, 416; Wilson v. Roots, 119 Illinois, 379, 392; Coon v. Spaulding, 47 Michigan, 163; Cameron v. Wells, 30 Vermont, 633; Bydenburg v. Welsh, Baldwin, 331, 338; >8. C., Fed. Cas. No. 1583; Carter v. Phillips, 144 Massachusetts, 100; 8. C., 10 N. E. Rep. 500. This being a government contract it should be construed in accordance with good faith giving neither party an unconscionable advantage of the other. Scott v. United States, 12 Wall. 443; Hume v. United States, 132 U. S. 406; United States v. Bank, 96 U. S. 36. As to measure of damages in such a case, see Monroe v. United States, 35 Ct. of Clms.. 199, affirmed 184 U. S. 524; Murphy v. United States, 13 Ct. of Clms. 372, 380. Mr. Assistant Attorney General Pradt for the United States. It has been held that § 3744, Rev. Stat., is a statute of frauds relating to contracts with the United States. Clark v. Unite States, 95 U. S. 539. And where the contract is executory and is not written it is not enforceable under § 3744, but where t e agreement has been fully executed and the goods delivere and paid for an action cannot be maintained on the quantum meruit. The quantum meruit fendant is in default, could only be resorted to when the de-Galvin v. Prentiss, 45 N, Y. 164; ST. LOUIS HAY &c. CO. v. UNITED STATES. 161 191U. S. Opinion of the Court. v. Railroad Co., 51 N. Y. 583; King v. Brown, 2 Hill (N. Y.), 487; Coughlin v. Knowles, 7 Met. 61. The express contract constitutes a complete defence to an action on the quantum meruit. Stone v. Dennison, 13 Pick. 1; King v. Welcome, 5 Gray, 44; Gillespie v. Battle, 15 Alabama, 276; Williams v. Beemis, 108 Massachusetts, 91. It is a well settled principle that the statute of frauds has no application to an executed agreement. Remington v. Palmer, 62 N. Y. 31; Larson v. Johnson, 78 Wisconsin, 306; House v. Bernheim, 59 Connecticut, 133; McCue v. Smith, 9 Minnesota, 258. Executed contracts although unwritten are valid. Webster v. Lecompte, 74 Maryland, 258; Crane v. Gough, 4 Maryland, 333; Bibb v. Allen, 149 U. S. 497, and cases therein cited. Gibbons v. United States, 2 Ct. of Clms. 421; S. C., 8 Wall. 269, controls this case. Mr. Justice Holmes delivered the opinion of the court. This is an appeal from a judgment of the Court of Claims dismissing the appellant’s petition. 37 C. Clms. 281. The petition alleges a contract by the United States to buy 9,000,000 pounds of hay from the claimant at the rate of sixty-one and one-half cents per hundred weight, a refusal by the Government to take the hay at the rate of one-sixtieth daily, as required by the contract according to the claimant’s interpretation, and a failure to accept two hundred and fifty-five thousand two hundred and ninety-one pounds out of the nine million. The rest, it is admitted, was taken and paid for at contract rates. The claimant seeks compensation for an increased price paid by it, increased cost of transportation and oss of anticipated profits, caused by the delay, all as damages or t e breach of the contract, or, alternatively, the market value of the hay less the amount paid by the United States, ne answer is a general denial. he Court of Claims finds that during the late war with 9 onn mn ac^ver^semen^ was published by a quartermaster for ’ > pounds of hay, among other things, seemingly for vol. oxci—11 5 162 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. use in Camp George H. Thomas, Georgia, and that in connection with it the following information was furnished: “The foregoing are the estimated quantities which will be required but bids will be accepted in whole or in part ... and awards made under accepted bids will provide that the quantities awarded may be increased or decreased at the option of the United States, not exceeding twenty per centum thereof . . . and further, that if the troops should be wholly or in part withdrawn, the awards shall become inoperative to the extent of such reduction. . . . Hay and straw. . . . Deliveries of the supplies to begin within five days from date of award, and proceed at daily rates of at least one-sixtieth of amount, or in such quantities and at such times afterwards, as may be designated by the chief quartermaster,” etc. A bargain was made on these terms on July 12, 1898. Shipments were made, amounting, on August 27, 1898, to 4,685,949 pounds. On August 28 the quartermaster telegraphed to the claimant not to ship any more hay until notified to do so. This suspension of orders was due to the withdrawal of troops. The claimant then had 100 carloads in transit, which it was obliged to sell for what it could get, and protested against the stoppage. At different dates between September 12 and May 18 following the quartermaster telegraphed orders for hay, which were filled. Hay meantime had risen in value and cost the claimant more than it would have cost in the summer. Accordingly the claimant asked to be relieved from delivery, but the quartermaster refused, holding back money due to the claimant as security to compel performance. The claimant went on with deliveries, and in December was asking for orders “on our contract,” on April 27 returned a voucher “ covering hay on our contract,” on May 27 sent a bill of lading and invoice “ordered upon our contract to day, and on June 24, 1899, wrote “we would like to know how soon you expect us to put in the balance of the hay due upon the con tract, as we are anxious to get it all cleaned up.” It wou seem that no hay was ordered after June 13. The claiman ST. LOUIS HAY &c. CO. v. UNITED STATES. 163 191 u. S. Opinion of the Court. delivered the hay and received full payment for it under the contract, without protest or attempt to reserve any rights at that time. The last payment was made on July 24, 1899. On May 11,1899, however, the claimant wrote to the quartermaster, claiming damages on account of the government not taking the hay at the rate of one-sixtieth per day and on June 28, and later, the quartermaster approved the claim.— Although, no doubt, both parties supposed their agreement binding, the Court of Claims held, and it is not disputed, that the contract was within Rev. Stat. § 3744, and not having been “reduced to writing, and signed by the contracting parties with their names at the end thereof,” could not have been sued upon if it had not been performed. Clark v. United States, 95 U. S. 539; South Boston Iron Co. v. United States, 118 U. S. 37. See Monroe v. United States, 184 U. S. 524. It is argued by the claimant on this ground that it is entitled to maintain a quantum valebat. On the facts stated it is evident that the claimant has no case. The invalidity of the contract is immaterial after it has been performed. When a lawful transfer of property is executed it does not matter whether the terms of the execution were void or valid while executory; the transfer cannot be revoked or the terms changed. A promise to make a gift does not bind, but a gift cannot be taken back, and a transfer in pursuance of mutual promises is not made less effectual by those promises or by the fact that money was received in ex-c ange. The contract may be void, as such, but it expresses e terms on which the parties respectively paid their money and delivered their goods. See Savage v. United States, 92 • 382. The proposition does not need to be argued or expained more at length. Of course, different considera-ions would come in if the claimant had been subjected to a nio ive from which it had a right to be free, as, for instance, Cq ] faU or ^uress- But there was nothing which the law ?. recognize as duress, and the suggestion that it was pe-. cu iar y the duty of the officers of the Government to see that 164 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. the contract was put in binding form, is very far from making out an analogy to fraud. The claimant was bound to know the law at its peril. The agent of the United States made no representation, and the claimant in no way purported to submit its judgment to him, if that would have bettered its case. But it is said that this is not the simple case of mutual performance of a void contract, but that the United States, although it has paid the price, has broken the contract in respect of time. It may be said that if the United States, instead of paying for the hay, had set up the invalidity of the contract, the claimant could have sued on a quantum valebat. Clark v. United States, 95 U. S. 539, 542, 543; Bacon v. Parker, 137 Massachusetts, 309, 310, 311. And it might be argued that the same result would follow if the United States, after paying the price, were compelled to rely upon the invalidity of the contract in answer to a claim of damages for a breach. Acceptance of payment by the vendor is not necessarily a waiver of such a claim. Garfield & Proctor Coal Co. v. Fitchburg Railroad, 166 Massachusetts, 119, 123. But we need not consider the questions suggested, because we agree with the Court of Claims that there was no breach. The right to diminish the order and to change the quantities and times was reserved in the fullest and most express terms, and especially with regard to the event which happened, the withdrawal of the troops. Therefore, if, in view of the protest and claim made by the claimant, we should assume that the payment of the contract price did not purport to be in full satisfaction of al claims under the contract, which would be going very far an would be against the findings, still there is no valid claim under it, because the United States has done all that it un er took to do. It is true that hay is an article varying great y in price at different seasons of the year, and that would have been a reason for holding time of the essence, if the contrac had fixed a time; but the contract left the time open, as we have said, and the claimant must be held to the bargain w c it made, although it has been disappointed in reasonable hopes. Judgment afiirmed. MISSOURI v. DOCKERY. 165 191 Ü. S. Argument for Plaintiff in Error. MISSOURI v. DOCKERY. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. No. 180. Argued October 27,1903.—Decided November 16,1903. The rights of an individual under the Fourteenth Amendment turn on the power of the State. A State does not infringe his rights under that amendment by exempting a corporation from a tax either wholly or in part, whether such exemption results from the plain language of a statute or from the conduct of a state official under it. The facts appear in the opinion of the court. Mr. E. P. Johnson, with whom Mr. Frank K. Ryan was on the brief, for plaintiff in error. As to power to issue writs of mandamus and functions of writ, see § 3, Art. VI, Const., and § 4301, R. S. Missouri; State v. Weeks, 93 Missouri, 499; State v. Rombauer, 104 Missouri, 619; State v. Fraker, 166 Missouri, 130, 140; State v. Renick, 157 Missouri, 292, 298; State v. St. Louis, 145 Missouri, 551, 577; State v. Joplin Water Wolrks, 52 Missouri App. 312; 19 Am. & Eng. Enc. 2d ed. 725, and cases cited. Such writ is remedial. State v. Lewis, 76 Missouri, 370* State v. Fraker, 166 Missouri, 130,140; High’s Extraordinary Legal Remedies, 3d ed. sec. 430. It may be addressed to a court or other body or the individuals composing either, or to both of them. St. Louis County v. Sparks, 10 Missouri, 117, 120; State v. Public Schools, 134 Missouri, 296, 297; State v. School Board, 131 issouri, 505, 511; State Board of Equalization v. The People, 1 llinois, 528. The proper mode of testing the sufficiency o an alternative writ of mandamus is by a motion to quash such writ. State v. Cook, 171 Missouri, 348, 354; State v. verett, 52 Missouri, 89, 93. On a motion to quash or a demurrer, all facts sufficiently pleaded are thereby admitted. ate v* Hi99ins, 76 Missouri App. 319, 328; State v. Neville, 166 OCTOBER TERM, 1903. Argument’for Plaintiff in Error. 191 U. S. 110 Missouri, 345; State v. Public Schools, 134 Missouri, 296, 305; State v. Conrad, 147 Missouri, 654, 662; State v. Adam, 161 Missouri, 349, 363. The motion to quash is equivalent to a demurrer and if there is any cause of action stated in the petition the motion should be overruled. §§599,675, R. S. Missouri, 1899; McClurg v. Phillips, 49 Missouri, 315; Alnut v. Leper, 48 Missouri, 319. Irrelevant or redundant matter may be stricken out. §612 R. S; State v. St. Louis, 145 Missouri, 551. The governor of the State is not even ex officio a member of the State Board of Equalization. State v. Walker, 121 Missouri, 162. This is not a suit against a State but against its officers to compel them to exercise a discretion vested in them by its laws. Smyth v. Ames, 169 U. S. 466, 518; Scott v. Donald, 165 U. S. 58, 67; In re Tyler, 149 U. S. 164, 190; Tindal v. Wesley, 167 U. S. 204, 220; Pennoy er v. McConnaughy, 140 U. S. 1, 10. A writ of error or an appeal lies from a judgment awarding or refusing a peremptory writ of mandamus. State v. Riley, 85 Missouri, 156; State v. Lewis, 76 Missouri, 370, 377; State v. Horner, 10 Mo. App. 307, 315; Bastan v. Board of Trustees, 88 Mo. App. 22; Ex parte Skaggs, 19 Missouri, 339; Lewis v. Price, 11 Missouri, 398; Merrill on Mandamus, sec. 306. And a writ or error lies from this court to the Supreme Court of Missouri, on a refusal by the latter to issue such writ. Missouri v. Lewis, 101 U. S. 22. Any citizen and taxpayer is entitled to bring an action in mandamus against a public officer to compel him to perform his official public duty. State v. Public Schools, 134 Missouri, 296, 304; State v. School Board, 131 Missouri, 505, 514; State v. Francis, 95 Missouri, 44; State v. Hoblitzelfy 85 Missouri, 620, 626; State v. Railroad, 86 Missouri, 13. Demand is not necessary. State v. Stucky, 78 Mo. App. 533,54 , People v. Kipley, 171 Illinois, 44, 91; State Board of Equalization v. People, 191 Illinois, 528, 540; State v. Street Ry'C°‘> Washington, 518, 523; State v. Cornwall, 97 Wisconsin, 565; 13 Ency. of Pl. & Pr. 618; High’s Ext. Leg. Rems. 3d ed. sec. 13; Merrill on Mandamus, sec..224. MISSOURI v. DOCKERY. 167 191 u. S. Argument for Plaintiff in Error. Mandamus will lie to compel the Board to reassemble after adjournment and perform the duty it should have, but failed, to perform. State v. Berg, 76 Missouri, 136,143; State v. Trigg, 72 Missouri, 365; State v. Public Schools, 134 Missouri, 296, 304; State v. Stucky, 78 Mo. App. 533, 545; Lowenthal v. The People, 192 Illinois, 222, 232; The People v. Board of Supervisors, 185 Illinois, 288, 292; People v. Schiellien, 95 N. Y. 124, 133; People n. Board of Registration, 17 Michigan, 427; Lewis v. Commissioners, 16 Kansas, 102, 106; State v. Hill, 20 Nebraska, 119. An application made before the day of adjournment would have been premature and properly refused. State v. Associated Press, 159 Missouri, 410, 421; Lowenthal v. The People, 192 Illinois, 222, 232; High’s Ext. Leg. Rems. 3d ed. sec. 12. Besides the writ would not abate, but might go against their successors in office. State v. Walbridge, 153 Missouri, 194, 204; State Board of Equalization v. The People, 191 Illinois, 528, 541. Under the plenary provisions of sec. 9356, R. S. Missouri, 1899, it would not be necessary to reconvene said Board. Mandamus does not lie to control the discretion of a court board of public officers, but to compel its exercise in cases where it was not exercised, or where it was exercised in such a manner as to amount to a virtual refusal to exercise it. State v. Talty, 166 Missouri, 529, 560; State v. St. Louis, 158 Missouri, 505,514; State v. Public Schools, 134 Missouri, 296,311; State v. State Board of Health, 103 Missouri, 22, 29. Mandamus lies to compel an officer to perform his duty, and levy a tax where he fails or refuses to perform it. State v. Tracy, 94 Missouri, 217, State v. Riley, 85 Missouri, 156; State v. Byers, 67 Missouri, 06. Also to compel a State Board of Equalization to assess property. State v. Severance, 55 Missouri, 378, 384; State oard v. People, 191 Illinois, 528, 531; Merrill on Mandamus, sec. 527, and cases cited; Brown v. Oneida County, 103 Wis-congin^ 149; 459 State Board of Equalization, which wil-u y makes an assessment that is grossly inadequate, may be compelled by mandamus to make a valid assessment. State oar v. The People, 191 Illinois, 528, 539; State v. Savage 168 OCTOBER TERM, 1903. Argument for Defendants in Error. 191 u, S, (Neb.), 91 N. W. Rep. 716, 731; Manchester n. Furnald, 71 N. H. 153, 158; Knight v. Thomas, 93 Maine, 494, 500; Brom v. Oneida County, 103 Wisconsin, 149, 159; Railway Co. v. Backus, 154 U. S. 421, 435; Taylor v. Louisville & N. R. Co., 88 Fed. Rep. 350, 373,374. By the averments in the petition and alternative writ, that the Board failed to ascertain and assess the total cash value of said assessable property, or of said corporations but made pretended assessments of the same which were grossly inadequate, fraudulent and not uniform and from twenty-five to forty-eight per cent of the cash value of the property so assessed, as against an assessment of the full cash value of the property of relator, which was a gross abuse of their discretion and an evasion of their positive duty, thereby largely increasing the tax to be paid by relator and all other taxpayers of St. Louis. The case at bar is brought within the rulings of this court denying to persons the equal protection of the laws. Cummings v. National Bank, 101 U. S. 153; Supervisors v. Stanley, 105 U. S. 305; National Bank v. Kimball, 103 U. S. 732; Pittsburgh, etc., Ry. Co. v. Backus, 154 U. S. 421, 435; Kentucky Railroad Tax Cases, 115 U. S. 321, 336; Union Pac. Ry. Co. v. Cheyenne, 113 U. S. 517, 526; Stanley v. Supervisors of Albany, 121 U. S. 535, 548; Tetylor v. Louisville & Nashville Rd. Co., 60 U. S. App. 166, 201; Phila. Fire Assn. v. New York, 119 U. S. 110, 120; New York State v. Barker, 179 U. S. 279, 284. Mr. Edward C. Crow, Attorney General of the State of Missouri, and Mr. Bruce Barnett for defendants in error, submitted: Under Art. 4, § 16, Const, of Missouri and act of March 9,1901, p. 232, respondents, as a state board of equalization, eonstitu e a judicial body vested with discretionary powers, and there e ing no provision made by statute for appeal from their ec sions, their jurisdiction in the matter of assessing proper y exclusive, and no act of this body in such connection is su ject to review by any court. Hagar v. Reclamation wric, MISSOURI v. DOCKERY. 169 191 u, s. Opinion of the Court. Ill U. S. 701, 710; Manchester v. Furnald, 71 N. H. 153; State ex rel. Gottlieb v. Western Union Telegraph Co., 165 Missouri, 502; National Bank v. Kimball, 103 U. S. 732; Stanley v. Supervisors, 121 U. S. 535. Respondents have taken action in the premises; their discretion has been exercised. Relator seeks by mandamus not merely to compel this quasi judicial body to act, but to compel a revision of the finding of said body, that they may arrive at a different result. Mandamus will not lie for such a purpose. This remedy is effective to require such a body to take action, but cannot be used to direct the course which it must pursue or the result which it must reach in the exercise of its discretion. The fact that no provision is made for appeal for writ of error in this case does not justify the court in undertaking to review the finding in a mandamus proceeding. In re Rice, 155 U. S. 396; State Board v. Goggin, 61 N. E. Rep. 339, distinguished. It is not the duty of the board to make any assessment on express companies, it being provided by a statute of the State that in lieu of taxes they pay one and one-fourth per cent of their gross receipts. Rev. Stat. Missouri, 1899, sec. 9400, vol. II, p. 2184. This statute has been declared constitutional, and upheld by this court. Pacific Express Co. v. Seibert, 142 U. S. 339. Mr. Justice Holmes delivered the opinion of the court. This is a writ of error to the Supreme Court of Missouri, upon a judgment quashing an alternative writ of mandamus th S^e b°ard °I equalization. The petition alleges that e oard, instead of assessing the total actual cash value of e taxable property of certain railroad, bridge, telephone, ^e egraph and express companies, made pretended, fraudu-, inadequate and not uniform assessments upon such prop-e y at valuations varying from about a quarter to forty-eight 170 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. per cent of the actual value, except that of the express companies, which they did not assess at all. It alleges that in this way the petitioner will be deprived of his property without due process of law and will be denied the equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution of the United States. The motion to quash denied the jurisdiction of the Supreme Court of Missouri to issue the writ, and also the sufficiency of the grounds on which the writ was allowed. The court sustained the motion without an opinion or statement of reasons. For all that appears, the court may have quashed the writ on grounds of local practice. But if this consideration be laid on one side, it is impossible to say that the board of equalization has not acted with regard to those companies which it has assessed. It has laid a substantial tax upon them. Its judgment is final under the Missouri constitution and statutes. Mo. Const. Art. X, § 18; Rev. Stat. §§ 9344,9356, c. 149, art. 8, March 9, 1901, Stat. 1901, p. 232. If, nevertheless, we assume that mandamus would lie upon a clear case of fraud adequately alleged and proved, State Board of Equalization v. People, 191 Illinois, 528, 539, it would be a strong thing to revise the judgment of the board on the strength of allegations of undervaluations, and the single adjective “fraudulent” without more specific allegations of fact. State v. Western Union Telegraph Co., 165 Missouri, 502, 516, 517; Stale v. Talty, 166 Missouri, 529, 560; Manchester v. Furnaid, 71 N. H. 153, 158; Knight v. Thomas, 93 Maine, 494; Maish n. Arizona, 164 U. S. 599, 611; Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U. S. 421, 434, 438. See Fogg v. Blair, 139 U. S. 118, 127. However this may be, the petitioner admitted at the argument that his own tax was correct, and that he would have had no case under the Fourteenth Amendment if the com panies had been exempted altogether. Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293-295; Connolly Union Sewer Pipe Co., 184 U. S. 540, 562. But his rig s ALLEN v. PULLMAN COMPANY. 171 191 U. S. Syllabus. under that amendment turn on the power of the State, no matter by what organ it acts. Virginia v. Rives, 100 U. S. 313, 318. Therefore, if the Supreme Court of the State construed the statutes as exempting express companies from this tax and substituting another, as it is argued on behalf of the defendants in error that the statutes do, the petitioner cannot complain here. For the legislature could exempt them, and the question whether it has done so or not is for the state courts to decide in their construction of its acts. Furthermore, if the State could grant a total exemption it could grant a partial exemption, and if it has done so, de facto, through its officers, the petitioner cannot come here on an allegation that the officers acted as they did without the authority of the State. That again is for the state court to decide. The petitioner has no case under the Constitution of the United States, and nothing else is open. This is a writ of error to a state court, so that questions under the state constitution and laws cannot be considered as they might be on error to a subordinate court of the United States. Judgment affirmed. ALLEN v. PULLMAN’S PALACE CAR COMPANY. error to the circuit court of the united STATES FOR TTTF, MIDDLE DISTRICT OF TENNESSEE. No. 27. Argued October 16,1903.—Decided November 16,1903. commwX ^,1“P°Se a tax which is *n anY waY a burden upon interstate in infpr«+aL 1 may lmPose a privilege tax upon corporations engaged wholly within °™inerce f°r carrying on that part of their business which is state busing heJaxing State and which tax does not affect their inter-The provisi r or their right to carry it on in that State. car comT 1&W °f the State of Tennessee of 1887, that sleeping per car anH^V ^.us’ness ™ the State pay a certain sum per annum W lc terms applies to cars running through the State OCTOBER TERM, 1903. Statement of the Case. 191 u. S, as well as to those operated wholly within the State, is repugnant to the commerce clause of the Federal Constitution. Pickard v. Pullman Co 117 U. S. 34. The provision of the tax law of the State of Tennessee of 1889, that sleeping car companies pay a tax of $3,000 per annum in lien of all other except ad valorem tax for one or more passengers taken up at one point within the State and delivered at another and transported wholly within the State and which does not refer to or affect the interstate business of the companies, is not repugnant to the commerce clause of the Federal Constitution. Osborne v. Florida, 164 U. S. 650. Such tax will not be regarded as a disguised attempt to tax the privilege of engaging in interstate commerce if, under the laws of the taxing State, it is not compulsory for a corporation engaged in interstate commerce to carry on that part of its business which is wholly within that State. Pullman Co. v. Adams, 189 U. S. 420. This is a writ of error to review the judgment of the Circuit Court for the Middle District of Tennessee in suits brought by the Pullman’s Palace Car Company to recover from the State of Tennessee moneys paid under protest for taxes levied and collected by virtue of certain laws of the State requiring the payment of sums for the years 1887 to 1893, inclusive. These statutes are set forth in the opinion. The cases were tried by the court without the intervention of a jury, and separate findings of fact and law were made. From the findings of fact it appears that the Pullman Company, a sleeping car company, operated its cars in Tennessee under a contract with railroad companies traversing the State. These contracts required the Pullman Company to furnish the cars, keep the same in order, and to hire the porters and conductors. The railroad companies paid the Pullman Company for the privileges afforded, furnishing light, heat and water for the cars, and repairing damages due to accident and casualty. The special finding o facts as to the manner of operation in transporting the cars o the Pullman Company sets forth: During the years 1887 and 1888 the company operated sleeping cars, as follows: A car left Nashville and went to Memp nightly and on this car tickets were sold to passengers from Nashville to Memphis and not beyond. This car remaine m Memphis during the day, returning to Nashville the following ALLEN v. PULLMAN COMPANY. 173 191 n s_ Statement of the Case. night and going no further. The next night, it went from Nashville by way of Chattanooga to Atlanta, Georgia. It remained in Atlanta during the day and returned the next night from Atlanta to Memphis. On the trip from Memphis tickets were sold from Nashville to Atlanta and to intermediate points in the State of Tennessee. On the nights the cars left Nashville for Memphis and Atlanta for Nashville, a car left Memphis for Nashville and another left Nashville for Atlanta, selling tickets from Memphis to Nashville and intermediate points, and no further, and from Atlanta and intermediate points to Nashville and no further. The car from Memphis to Nashville went on the trip to Atlanta before making a return trip to Memphis, and the car making the trip from Atlanta to Nashville went on the trip the following night to Memphis before making a return trip to Atlanta. The same cars were not used continuously in this service, but were changed from time to time, there being four cars performing the service at all times. During the year 1887 the East Tennessee, Virginia and Georgia Railroad Company ran two sleepers of its own, doing a business between Knoxville and Chattanooga, Tennessee. During the years 1889, 1890, 1891, 1892 and 1893 the company has operated sleeping cars between Nashville and Memphis and Atlanta and Nashville, as above set forth. From 1887, continuously, the Pullman Company has operated its cars on the lines of the Nashville, Chattanooga and St. Louis Railway, the Louisville and Nashville Railroad, East Tennessee, Virginia and Georgia Railroad, now the Southern Railway, the Newport News and Mississippi Valley Railroad, Illinois Central Railroad and Cincinnati Southern Railroad, and all other railroads within the State of Tennessee whereon sleeping cars are used, and has taken up, carried and put down passengers within the State. In 1887 sleeping cars were operated during a portion of the year between Nashville and Memphis, and did not pass beyond the limits of the State. It was agreed that, without either party waiving any rights, the plaintiff’s claim would be abated $1,234. 174 OCTOB ER TERM, 1903. Argument for Plaintiff in Error. 191 u. S. The gross receipts of the plaintiff per year from lines running into the State of Tennessee was about five hundred thousand dollars. The gross receipts per year from passengers carried locally in Tennessee was about twenty-five thousand dollars. The cars actually used on all these lines during each year would number over one hundred. Mr. John J. Vertres, with whom Mr. Charles T. Cates, Jr., Attorney General of the State of Tennessee, was on the brief, for plaintiff in error. The only question in the case is a constitutional one— whether Acts 1887, ch. 1, sec. 5; Acts 1889, ch. 130, sec. 5; Acts 1891, Ex. Sess. ch. 25, sec. 5, of the Legislature of the State of Tennessee are in violation of article 1, sec. 8, sub-sec. 3 (the interstate commerce clause), of the Constitution of the United States. The act of 1899 is not inimical to the Federal constitution. As to what is interstate commerce, see Fargo v. Michigan, 121 U. S. 230, 240. The question to be determined, stated in general terms, is this: Where a sleeping-car company does both an interstate and an intra-state business, can a State tax the intra-state business? Or, stated otherwise: Does the fact that a sleeping-car company does an interstate business, as well as a local or intra-state business, deprive the States of the power to tax the local business? Two well settled principles are to be noted. If the State o Tennessee is possessed of the power to impose this privilege tax, the amount of the tax is a question for the Legislature o Tennessee alone to decide. The only concern of this court is with the validity of the tax. All else lies beyond the juris diction which it has. Delaware R. R. Tax, 18 Wall. 231, «• & Pac. R. R. Co., 127 U. S. 141; Home Ins. Co. n. New York, 134 U. S. 594; Weston v. Charleston, 2 Pet. 449, 466; State Tax on Foreign-held Bonds, 15 Wall. 300, 319; Kirtland v. Hotchkiss,. 100 U. S. 499; Street R. R. Co. v. Morrow, 87 Tennessee, 432: ALLEN v. PULLMAN COMPANY. 175 igi u. s. Argument for Plaintiff in Error. Railroad v. Harris, 99 Tennessee, 684,. 709; Jenkins v. Ewin, 8 Heisk. 477. The motives of Legislatures, and the policy, or impolicy of statutes, are things with which courts have nothing to do. Fletcher v. Peck, 6 Cranch, 87; Angle v. Chicago, etc., R. R. Co., 151 U. S. 17; Lynn v. Polk, 8 Lea (Tenn.), 218, 233, 298; Railroad v. Harris, 99 Tennessee, 708. A tax may be imposed by the States upon the local or intrastate branch of a trader’s or company’s business, which is of both an interstate and an intra-state character, so long as it is restricted to the intra-state business, and does not amount to a regulation of the whole. It is permissible for the States to tax personal property employed in interstate commerce like other property within its jurisdiction. Pullman Car Co. v. Penna., 141 U. S. 18, 23; Am. Ref. Transit Co. v. Hall, 174 U. S. 70. Such a tax is a “burden” upon the interstate commerce in which the cars are used, but it is not such a burden as to so interfere that it amounts to a regulation. Massachusetts v. W. U. Tel. Co., 141 U. 8. 40. While taxes affecting interstate business have not been upheld in all cases, this court has said that when the tax was confined to intra-state business the tax was legal. Postal Telegraph Co. v. Charleston, 152 U. S. 692; Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530; Leloup v. Port of Mobile, 127 U. S. 640; Telegraph Co. v. Texas, 105 U. S. 460; Ratterman v. Western Union Telegraph Co., 127 U. S. 411; Western Union Telegraph Co. v. Alabama, 132 U. S. 472; Pacific Express Co. v. Seibert, 142 U. S. 339; Osborne v. Florida, 164 U. S. 650; Maine v. Grand Trunk Ry., 142 U. S. 217. And see following cases in state courts. Railroad v. Harris, 99 lennessee, 685, 710; Osborne v. State, 33 Florida, 162; 5. C., 25 L K. A. 120; 39 Am. St. Rep. 99; State v. French, 109 N. C. 722; wo. ReP‘ 590; New Jersey v. Board, 55 N. J. Law, > • C., 25 L. R. A. 134; W. U. Tel. Co., v. Fremont, 43 Ne-» n ’ R- A- 706; York City v. Chicago, etc., u Nebraska, 578; Ogden City v. Utah, 17 Utah, 76; W. Co, Vi Bright, 90 Virginia, 70; Ala., etc., R. R. v. Besse 176 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 u. S. mer, 113 Alabama, 668; Ohio Express Co. v. Stale, 55 Ohio. St. 69. The court below followed U. S. Express Co. v. Alien, 39 Fed. Rep. 712; >8. C., 139 IT. S. 591, 658; Pickard n. Pullman Co., 117 U. S. 34, but the act of 1875, ch. 130, Code of Tennessee, § 3046, relieves common carriers from being obliged to carry passengers. R. R. Co. v. Katzenberger, 16 Lea, 380. The act of 1887 is not inimical to the Federal Constitution. The presumption is that the legislature intended to enact a law within its powers. Grenada v. Bragden, 112 U. S. 269; Marshall v. Grimes, 4 Mississippi, 27, 31; United States v. Sanges, 48 Fed. Rep. 77, 91. If a statute is fairly susceptible of two constructions, that one will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary to disregard the more usual or apparent import of the language employed. Parsons v. Bradford, 3 Peters, 433; Black on Inter. Laws, 94; Railroad v. Harris, 99 Tennessee, 687, 704; Suth. on Stat. Const, sec. 332, citing cases from fourteen States. In making the distinction between the power over commerce and municipal power, literal adherence to particular nomenclature should not be allowed to control construction, in arriving at the true intention and effect of the state legislation. Postal Tel. Co. v. Adams, 155 IT. S. 700. Tax laws enacted to further public interests should be construed with liberality. Black on Int. Laws, 325; Silver v. Ladd, 7 Wall. 219. It was proper to average the number of cars to be taxe . Am. Refrigerator Co. v. Hall, 174 U. S. 70; Union Refrigerator Co. v. Snyder, 177 U. S. 149. Mr. William Burry, with whom Mr. J. S. Runnells was on the brief, for the defendant in error. Cars running between Nashville and Chattanooga were run interstate because they went out of the State in transit. an ley v. Kansas City R. Co., 187 IT. S. 617. ALLEN v. PULLMAN COMPANY. 177 191 U. S. Opinion of the Court. The tax under the act of 1887 is a privilege and is identical with Pickard v. Pullman Co., 117 U. S. 34. No State can lay a tax on interstate commerce in any form. Lyng v. Michigan, 135 U. S. 166; LeLoup v. Mobile, 127 U. S. 640; Pacific Express v. Seibert, 142 U. S. 350; Maine v. Grand Trunk Ry., 142 U. S. 217; Morgan v. Louisiana, 118 U. S. 455. The tax on intra-state business is illegal as the Pullman Company is a common carrier and is bound to afford accommodations to any one applying therefor. Nevin v. Pullman Co., 106 Illinois, 222; Elliott on Railroads, § 1617; Attorney General v. London &c. Ry. Co., 6 Q. B. Div. 216; Pullman Co. v. Smith, 73 Illinois, 360; Pullman Co. v. Gavin, 93 Tennessee, 53; Pullman Co. v. Pennsylvania, 141 U. S. 25; Adams Express n. Ohio, 165 U. S. 220. State legislation which may operate as a burden on or interfere with interstate commerce is obnoxious to the Federal Constitution. State Freight Tax Case, 15 Wallace, 232,277 ; and other cases already cited ; and as to freedom from taxation given to interstate commerce, see Vance v. Vander cook, 170 U. S. 438; Am. Refrigerator Co. v. Hall, 174 U.S. 70. The license tax seeking to make the business liable if only a single passenger tenders fare for intra-state accommodation is a subterfuge to evade the interstate clause of the Constitution. Crutcher v. Kentucky, 141 U. S. 47, 58; Austin v. Tennessee, 179 U. S. 343; Mugler v. Kansas, 123 U. S. 623, 661; v- Louisiana, 118 U. S. 462; Henderson v. New York, 1 1 " 2^’ 268* tax is not valid because laid upon ocal and domestic, as well as interstate traffic. State Freight lax Case, 15 Wallace, 232, 272. j ?R' jUfiriCE ^AY’ a^er making the foregoing statement, delivered the opinion of the court. in e?TiXeS^^n controversy were levied under certain revenue 188«° h!,St1ate of Teimessee. Those for the years 1887 and provided: “That the rate of taxation on the following VOL. CXCI—12 178 OCTOBER TERM, 1903. Opinion of the Court. 191 jj. g privileges shall be as follows: Sleeping cars: Each company doing business in the State, on each car per annum, $500.” Section eight of the act provided: “That any and all parties, firms or corporations exercising any of the foregoing privileges must pay this tax, as set forth in this act, for the exercise of such privilege, whether they make a business of it or not.” The Tennessee act of 1877, imposing a tax upon the running of sleeping cars, was before this court for consideration in the case of Pickard v. Pullman Co., 117 U. S. 34. That act provided: “That the running or using of sleeping cars or coaches on railroads in Tennessee, not owned by the railroads upon which they are run or used, is declared to be a privilege, and the companies shall be required to pay to the comptroller by the first day of July following fifty dollars ($50) for each and every said cars or coaches used or run over said roads; and if the said privilege tax herein assessed be not paid as aforesaid the comptroller shall enforce the payment of the same by distress warrant.” It was held that the tax was a burden upon interstate commerce and void because of the exclusive power of Congress to regulate commerce between the States. Unless the statute now under consideration can be distinguished from the one then construed, the Pickard case is decisive of the present case. Both taxes were imposed under the power granted by the constitution of Tennessee to lay a privilege tax. This power is held by the Supreme Court of the State to give a wide range of legislative discretion. Any occupation, business, employment or the like, affecting the public, may be classed and taxed as a privilege. K. & 0. Railroad v. Harris, 99 Tennessee, 684. In the act of 1877 the running and using of sleeping cars on railroads in the State, when the cars are not owned by the railroads upon which they are run, is declared to be a privilege. Under the act of 1887, the tax is specifically imposed upon a privilege. Under the act of 1877, the tax imposed was fifty dollars for each car or coach used or run over the road, bn the act of 1887, each company doing business in the State is ALLEN v. PULLMAN COMPANY. 179 191 U. S. Opinion of the Court. required to pay five hundred dollars per annum for the same privilege. The distinction, except in the amount of annual tax exacted, is without substantial difference. Under the earlier act the tax is required for the privilege of running and using sleeping cars on railroads, not owning the cars. In the later act it is exacted for the privilege of doing business in the State. This business consists of running sleeping cars upon railroads not owning the cars and is precisely the privilege to be paid for under the first act, neither more nor less. In neither act is any distinction attempted between local or through cars or carriers of passengers. The railroads upon which the cars are run are lines traversing the State but not confined to its limits. The cars of the Pullman Company run into and beyond the State as well as between points within the State. The act in its terms applies to cars running through the State as well as those whose operation is wholly tnira-state. It applies to all alike, and requires payment for the privilege of running the cars of the company regardless of the fact whether used in interstate traffic or in that which is wholly within the borders of the State. There is no decision of the Supreme Court of Tennessee limiting the act in its operation to ■¿nZra-state traffic. It is true that the comptroller has sought to restrain the operation of the law by imposing the tax for two years upon cars running between Nashville and Memphis and between Nashville and Chattanooga for two years, and fixing one car in each year as the proportion of local business done on interstate cars or two years. But this action does not conclude the State in taxing for other years, and the action taken by the comptroller oes not limit the terms of the law affecting interstate commerce. In LeLoup v. Mobile, 127 U. S. 640, 647, it was sought to recover a penalty imposed upon an agent of the Western Union e egraph Company for failure to pay an annual license tax as.required by an ordinance of Mobile. In the course of the opimon denying the right to exact the license fee, Mr. Justice ra ey said: “But it is urged that a portion of the telegraph 180 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. company’s business is internal to the State of Alabama, and therefore taxable by the State. But that fact does not remove the difficulty. The tax affects the whole business without discrimination. There are sufficient modes in which the internal business, if not already taxed in some other way, may be subject to taxation, without the imposition of a tax which covers the entire operations of the company.” In Osborne v. Florida, 164 U. S. 650, a license tax upon express companies was sustained, in view of the decision of the Supreme Court of that State that it affected only business of the company within the State. The statute now under consideration requires payment of the sum exacted for the privilege of doing any business when the principal thing to be done is interstate traffic. We are not at liberty to read into the statute terms not found therein or necessarily implied, with a view to limiting the tax to local business, which the legislature in the terms of the act impose upon the entire business of the company. We are of opinion that taxes exacted under the act of 1887 are void as an attempt by the State to impose a burden upon interstate commerce. Other considerations apply in the construction of the act of 1889, under which, or acts identical in terms, taxes were collected from 1889 to 1893, inclusive. It provides, p. 247, 266, c. 130, April 8, 1889: “Sec. 4. The rate of taxation on the following privileges shall be as follows, per annum. • • • Sleeping car companies (in lieu of all other taxes except valorem tax). Each company doing business in this State, or one or more passengers taken up at one point in this State an delivered at another point in this State, and transported w o y within the State, per annum, $3,000.” Its terms apply stnc y to business done in the transportation of passengers taken up a one point in the State and transported wholly within the ta e to another point therein. It is not necessary to review numerous cases in this court in which attempts by the a e to control or regulate interstate commerce have been the su ject of consideration. While they show a zealous care to pre- ALLEN v. PULLMAN COMPANY. 181 191U S. Opinion of the Court. serve the exclusive right of Congress to regulate interstate traffic, the corresponding right of the State to tax and control the internal business of the State, although thereby foreign or interstate commerce may be indirectly affected, has been recognized with equal clearness. In the late case of Osborne v. Florida, supra, Mr. Justice Peckham, speaking for the court, said: “It has never been held, however, that when the business of the company, which is wholly within the State, is but a mere incident to its interstate business, such fact would furnish any obstacle to the valid taxation by the State of the business of the company which is entirely local. So long as the regulation as to the license or taxation does not refer to and is not imposed upon the business of the company which is interstate there is no interference with that commerce by the State statute.” Granting that the right exists whereby a State may impose privilege or license fees upon business carried on wholly within the State, it is argued that the tax of three thousand dollars per annum, collected for carrying one or more local passengers on cars operating within the State, is assessed upon traffic which bears such small proportion to the entire business of the company within the State, that it could not have been levied in good faith upon purely local business, and is but a thinly disguised attempt to tax the privilege of interstate traffic. If the payment of this tax was compulsory upon the company before it could do a carrying business within the State, and the burden of its payment, because of the minor character of the domestic traffic, rested mainly upon the receipts from interstate traffic, there would be much force in this objection. Upon this proposition we are unable to distinguish this case from Pullman Co. v. Adams, 189 U. S. 420, decided at the last term, wherein it was held that the privilege tax imposed by the State of Mississippi, upon each car carrying passengers from one point m the State to another therein, was a valid tax, notwithstanding the fact that the company offered to show that its receipts from the carrying of the passengers named did not equal the 182 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. expenses chargeable against such receipts. This conclusion was based upon the right of the company to abandon the business if it saw fit. It was urged that under the constitution of Mississippi the Pullman Company was a common carrier, required to carry passengers, and therefore could not be taxed for the privilege of doing that which it was compelled to do; but in view of a decision of the Supreme Court of Mississippi, sustaining the tax, it was assumed that no such objection existed under the state constitution. Speaking upon this subject, Mr. Justice Holmes, delivering the opinion of the court, said: “If the clause of the state constitution referred to were held to impose the obligation supposed and to be valid, we assume, without discussion, that the tax would be invalid. For then it would seem to be true that the state constitution and the statute combined would impose a burden upon commerce between the States analogous to that which was held bad in Crutcher n. Kentucky, 141 U. 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 in 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.” There is additional reason for holding that the Pullman Company may transact its business in Tennessee without paying this privilege tax and continue its interstate business, dec n ing local business, thereby escaping the attempt to tax it upon business wholly within the State. The statute of Tennessee, enacted in 1875, provides: “The rule of the common law giving a right of action to any person excluded from any hotel, or public means of transportation, or place of amusement, is hereby abrogated; and hereafter no keeper of any hote, or public house, or carrier of passengers for hire, or conductors, drivers or employés of such carrier or keeper, shall be boun , ALLEN v. PULLMAN COMPANY. 183 191 U. S. Opinion of the Court. or under any obligation to entertain, carry, or admit any person whom he shall, for any reason whatsoever, choose not to entertain, carry or admit to his house, hotel, carriage or means of transportation or place of amusement, nor shall any right exist in favor of such person so refused admission, but the right of such keepers of hotels and public houses, carriers of passengers and keepers of places of amusement and their employes to control the access and admission or exclusion of persons to or from their public houses, means of transportation, and places of amusement, shall be as perfect and complete as that of any private person over his private house, carriage or private theatre or place of amusement for his family.” Shannon’s Code, § 3046. Under this act, no carrier is required to admit any passenger to his car or means of transportation. While the Pullman Company may not be technically a common carrier, still we think it comes within the scope and meaning of this act. A sleeping car is obviously a public means of transportation. Under this act, the carrier is not obliged to afford its privileges to those making application therefor. Mr. Justice Blatchford, speaking of the character of the service afforded by sleeping cars, in Pickard v. Pullman Co., 117 U. S. 34, said: “The car was equally a vehicle of transit, as if it had been a car owned by the railroad company, and the special conveniences or comforts furnished to the passenger had been furnished by the railroad company itself.” It follows that a tax imposed upon domestic business, under the circumstances shown, cannot be a burden upon interstate commerce in such sense as will invalidate it. Under the judgment of the court below, the Pullman Company was permitted to recover for license taxes levied under oth acts. In so far as it permitted a recovery for taxes under t e act of 1889 and identical laws of other years, the judgment should be modified. For that purpose, and for further proceedings in accordance with this opinion, the case is remanded to the Circuit Court. 184 OCTOBER TERM, 1903. Statement of the Case. igj p g DEFIANCE WATER COMPANY v. DEFIANCE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. No. 21. Argued April 22,1903.—Decided November 30,1903. The fundamental question of jurisdiction, first, of this court, and then of the court from which the record comes, presents itself on every writ of error and appeal, and must be answered by the court whether propounded by counsel or not. When a suit does not really and substantially involve a dispute or controversy as to the effect or construction of the Constitution or laws of the United States, upon the determination of which the result depends, it is not a suit arising under the Constitution oiT laws; and it must appear on the record, by a statement in legal and logical form, such as is required in good pleading, that the suit is one which does really and substantially involve a dispute or controversy as to a right which depends on the construction of the Constitution or some law or treaty of the United States, before jurisdiction can be maintained on that ground. State courts are competent to decide Federal questions arising before them; it is their duty to do so, and the presumption is that they will do what the Constitution and laws of the United States require. If error intervenes the remedy is found in § 709 of the Revised Statutes, and the Federal courts cannot be called on to interpose in a controversy properly pending in the state courts on the ground that the state court might so decide as to render their final action unconstitutional. The fact that the council of a city has passed a resolution providing for payment of a pending bill of a water company claiming a franchise, with a saving clause against the city, being estopped from denying the existence of contract right, does not give the Circuit Court jurisdiction to maintain an action in equity to enjoin the city from appropriating money in the water fund to the payment of any indebtedness other than the complainant on the ground that such resolution is a law impairing the obligation of a contract within the purview of the Federal Constitution. Where in an action of which the lower court did not have jurisdiction t e bill was dismissed, but not for want of jurisdiction, the decree will be reversed by this court at the cost of appellant who takes nothing by the appeal and remanded to the lower court with instructions to dismiss t e bill for want of jusisdiction. On the fourth day of January, 1898, the city of Defiance, a municipal corporation of the State of Ohio, by its solicitor, filed a bill in equity against the Council of the city of Defiance DEFIANCE WATER CO. v. DEFIANCE. 185 191 IT. S. Statement of the Case. and the Defiance Waterworks Company, in the Court of Common Pleas of Defiance County, Ohio, praying that future payments under an alleged contract of August 17, 1887, between the Council of the City and Bullock & Company, who had subsequently assigned it to the Water Company, for the furnish-ing of water to the city for the term of thirty years from the date of the contract, be enjoined because of the invalidity of said contract, on grounds set forth. A preliminary injunction was granted. The Defiance Water Company thereupon presented its petition and bond for the removal of the case to the Circuit Court of the United States for the Northern District of Ohio, the petition alleging: “That this is a suit of a civil nature in which there is a controversy arising under the Constitution of the United States, in this especially that by means of it, the said plaintiff seeks to abrogate the contract alleged in its suit and to deprive this defendant of its property, the amount alleged in said plaintiff’s petition to be due this defendant, under said contract, without due process of law and without trial by jury; to which end and for which purpose, the said Council of the said city of Defiance have colluded and conspired with the said plaintiff and it is by their said Council’s procurement that the said plaintiff has brought the said suit.” The case was removed, but on January 24, 1898, was remanded by the Circuit Court of the United States to the Court ? vip11011 the same day the Water Company filed \ J „ln Circuit Court of the United States against the city e ance, and the Council of the City of Defiance, and comp ame that complainant was a corporation organized er t e laws of the State of Ohio for the purpose of perating waterworks in the city of Defiance and thereby turmshmg water to the city and to its citizens; that on and brought the suit hereinbefore mentioned, Ano- + i»? amed a preliminary injunction therein; that on en+i+^d « ^be city of Defiance duly passed an ordinance stn r A** ordi.nance to authorize and provide for the con-c ion and maintenance of a system of waterworks in the 186 OCTOBER TERM, 1903. 191U. S. Statement of the Case. city of Defiance, Defiance County, Ohio,” a copy of which ordinance was annexed. The provisions of the ordinance were then set forth to the effect that by its terms the right and privilege for the period of thirty years thereafter was granted to Bullock & Company, their associates, successors and assigns, to locate and operate a system of waterworks in that city, and to use the streets of the city for the purposes thereof; that the city contracted to rent of Bullock & Company a certain number of hydrants and to pay a certain rental therefor; that the city, at the expiration of ten years, was given the right to purchase the system, or, if that was not then done, then at the expiration of five years thereafter. It was averred that the ordinance was accepted by Bullock & Company, and the works were constructed, in the course of which Bullock & Company became indebted, and certain mortgage bonds were issued, which were outstanding and held by certain persons named; that Bullock & Company assigned all their rights and interests to the Defiance Water Company, and the Water Company completed the construction of the works to the entire satisfaction of the city, and the same were accepted March 5, 1889, by resolution. The bill further averred that the city had used the hydrants and was still using them, and that it had paid all of the rentals claimed under the contract down to January 1, 1898, except the sum of $500 due in 1895, to recover which suit had been commenced. It was then alleged that the City Council at its regular meeting, January 7th, 1896, passed an ordinance or resolution in substance rescinding and annulling said contract of the city with the Defiance Water Company, your orator, so far as it had power so to do; and providing by the terms of said ordinance or resolution, by which it should allow the bi of said Water Company for the rents that had accrued to them from the said city for the last half of the year 1895, that t e payment of the said bill should not be ‘ construed or taken to be any acknowledgment of any contract between them an the said city for said water rentals or in any manner imp yW DEFIANCE WATER CO. v. DEFIANCE. 187 191 U. S. Statement of the Case. any actual performance of any alleged contract and that no further payment at the present rate be made to the said company.’ ” The bill then stated that there was due to the Water Company for the last half of the year 1897 the sum of $3,142.50 less $756, which, it was subsequently said, had been paid. And it was charged, on information and belief, that the Council and the several members of it had, ever since the passage of the resolution or ordinance of January 7, A. D. 1896, claimed and repeatedly stated and given out to the public generally, that the city had no such contract as aforesaid for furnishing water to it by the Water Company; and that they had also passed resolutions and ordinances looking toward the construction of waterworks by the city, but nevertheless the city had given no notice of its intention to purchase and had not offered to purchase complainant’s waterworks. And furthermore, that many, if not all, of the members of the Council combined, colluded and confederated together, and with the city solicitor, to procure him to institute the suit before mentioned, and to procure an order of injunction against themselves, the City Council, prohibiting them from paying complainant the amounts due and owing. The bill then averred “that if said order of injunction shall stand and be made perpetual, the said ity and Council of Defiance, said defendants, will thereby eprive your orator of its property without due process of law, an by means of said order of injunction they will confiscate your orator s property and convert it to their own use without payment therefor and without trial by jury, contrary to the provisions of the Constitution of the United States.” And it as urther averred “that the passage of said ordinance or so ution and the attempt thereby to abrogate and annul a,! contract, contravenes the provisions of section 10 of arti- 1 ° 5 ^itution of the United States, in this, that they aws impairing the obligation of their said contract with your orator.” he prayer was that an account might be taken of the amount 188 OCTOBER TERM, 1903. Statement of the Case. igj u. 8 due complainant from the city of Defiance for water rents that may have accrued to it, and that the City and the City Council be decreed and ordered to allow and pay the same; that a provisional or preliminary injunction be issued to restrain defendants from appropriating and diverting the moneys in the water fund to the payment of any other indebtedness than that due complainant; and that on final hearing the Council and the City be perpetually enjoined from thereafter denying the existence of the contract, and abrogating or attempting to abrogate or annul the same; and for general relief. The bill was subsequently amended and a supplemental bill filed. To the bill as amended defendants demurred for want of jurisdiction, among other grounds specially assigned, and the demurrers were overruled. Complainant then filed a supplemental bill, and to the amended and supplemental bills defendants filed a joint plea, with an answer in support thereof, insisting, among other things, that the Court of Common Pleas of Defiance County had jurisdiction in the premises and that the Circuit Court had not. The plea was overruled and defendants answered, May 1, 1899, reserving their rights under their demurrers and plea; asserting the illegality of the alleged contract; insisting that complainant’s bill was an attempt to secure a removal of the case from the state court to the Circuit Court, which had already been determined against complainant ; denying the passage of any resolution or ordinance by the City Council impairing or intended to impair the obligation of any contract with complainant or its assignors; and the performance of any act or the intention to perform any act toward the erection or construction of waterworks by the city, an submitting that the Circuit Court had no jurisdiction of the subject matter and that it ought to refuse to further hear or consider the cause. Defendants attached to their answer, as they did to t eir plea, a copy of the resolution of January 7, 1896, referred to in the bill, and also copies of sundry other ordinances or reso u DEFIANCE WATER CO. v. DEFIANCE. 189 jgj jj g Statement of the Case. tions, and denied that that of January 7, 1896, or any other, had the effect, or was intended to have the effect, of impairing the obligation of the alleged contract with complainant; and insisted that if that, or any other resolution or ordinance, had the scope attributed to it, it was not lawfully passed under the statutes of Ohio; and further, that such resolution or ordinance had been repealed by various subsequent resolutions or ordinances for the payment of rentals to complainant, copies of which were attached. Defendants disclaimed any reliance on or benefit from any or all said resolutions and ordinances as releasing or intending to release the city from the obligation of the alleged contract, or that they served any other purpose than as notice that defendants claimed the ordinance of 1887 was void and illegal from the beginning. Defendants denied combination or collusion in the institution of the suit in the state court, and averred that the city solicitor acted on his own volition. Replication was filed, and evidence taken, and on June 17, 1901, defendants, by leave of court, filed a plea setting up the final decree of the Circuit Court of Defiance County, entered March 15, 1901, in the suit commenced in the Court of Common Pleas, adjudging the alleged contract to be null and void, and perpetually enjoining the city of Defiance and the Defiance Water Company from carrying it out. Replication was filed to this plea, and a transcript of the record in the state courts was put in evidence. This showed that after the case commenced in the Court of Common Pleas was remanded to that court, a demurrer was filed to the petition, was sustained, and the petition dismissed, whereupon the case was carried to the Circuit Court of Defiance County by appeal. In that court the demurrer was overruled, the Water Company answered, the city replied, the case was heard on pleadings and evidence, and a final decree was rendered in favor of the City and against the Water Company and the City Council to the effect a ove stated. The Circuit Court of the United States on hear-^g sustained defendant’s plea and dismissed the bill. From t at decree complainant prosecuted this appeal, which was 190 OCTOBER TERM, 1903. Opinion of the Court. 191 jj § argued in this court, April 22, 1903. Thereafter, and on October 13, counsel for all the parties called the attention of the court to the fact that the case in the Circuit Court of Defiance County had been carried to the Supreme Court of Ohio by the Water Company, and that that court on June 16, 1903, had reversed the decree of said Circuit Court, sustained the demurrer to the petition, and directed it to be dismissed. 48 Ohio Law Bulletin, 687. The Supreme Court held that, even if the alleged contract between the City and Bullock & Company were invalid, the cause of action to restrain its performance was barred by statute. Mr. Henry Newbegin and Mr. Robert Newbegin for appellant. Mr. Robert W. Bingham was on the brief. Mr. Fred L. Hay and Mr. Henry B. Harris for appellee. Mr. John P. Cameron was on the brief. Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. The decree of the Circuit Court was based on the decree of the state Circuit Court, which had been reversed by the state Supreme Court, and various suggestions have been made by counsel in respect of the judgment which they think should be rendered here in view of the termination of the litigation in the state courts. But the question of the jurisdiction of the Circuit Court meets us on the threshold, and the disposal of that question disposes of this appeal. Diverse citizenship did not exist, and, unless the case was one arising under the Constitution or laws of the United States, the jurisdiction of the Circuit Court was not properly invoked, and should not have been maintained. We have repeatedly held that “when a suit does not really and substantially involve a dispute or controversy as to the DEFIANCE WATER CO. v. DEFIANCE. 191 U_ S. Opinion of the Court. 191 effect or construction of the Constitution or laws of the United States, upon the determination of which the result depends, it is not a suit arising under the Constitution or laws. And it must appear on the record, by a statement in legal and logical form, such as is required in good pleading, that the suit is one which does really and substantially involve a dispute or controversy as to a right which depends on the construction of the Constitution or some law or treaty of the United States, before jurisdiction can be maintained on this ground.” Western Union Telegraph Co. v. Ann Arbor Railroad Co., 178 U. S. 239; Gold Washing & Water Co. v. Keyes, 96 U. S. 199; Blackburn v. Portland Gold Mining Co., 175 U. S. 571; Shreveport v. Cole, 129 U. S. 36; New Orleans v. Benjamin, 153 U. S. 411, 424. In the case last cited we said: “The judicial power extends to all cases in law and equity arising under the Constitution, but these are cases actually and not potentially arising, and jurisdiction cannot be assumed on mere hypothesis. In this class of cases it is necessary to the exercise of original jurisdiction by the Circuit Court that the cause of action should depend upon the construction and application of the Constitution, and it is readily seen that cases in that predicament must be rare. Ordinarily the question of the repugnancy of a state statute to the impairment clause of the Constitution is to be passed upon by the state courts in the first instance, the presumption being in all cases that they will do what the Constitution and laws of the United States require, Chicago & Alton Railroad Co. v. Wiggins Ferry Co., 108 U. S. 18; and if there be ground for complaint of their decision, the remedy is by writ of error under section 709 of the Revised Statutes. Congress gave its construction to that part of the Constitution by the twenty-fifth section of the judiciary act of 1789, and has adhered to it in subsequent legislation.” Complainant rested its assertion of jurisdiction on two grounds: . That the resolution or ordinance of January 7, 1896, impaired the obligation of the contract created by the ordinance of August 17,1887. 192 OCTOBER TERM, 1903. Opinion of the Court. jgj jj § 2. That if complainants were perpetually enjoined, as prayed in the suit in the state courts, the State would thereby have deprived it of its property without due process of law. 1. The bill did not set forth the resolution or ordinance of January 7, 1896, in extenso, but stated that by its passage the City Council “in substance” rescinded and annulled the contract “so far as it had power so to do,” in that in allowing a bill of the Water Company for accrued rentals it provided that the payment should not be “construed or taken to be any acknowledgment of any contract between them and the said city for said water rentals,” . . . The record shows the resolution, which was as follows: “ Jan’y 7th, 1896. “A resolution to draw warrant in favor of water company for $3,160.00. “Whereas, the Defiance Water Company have submitted a bill to the city council for $3,160, alleged to be due them from said city for water rental for the past six months; and “Whereas, said council are of the opinion that no valid contract exists, or is between said city and said company for the payment of the same; and furthermore, that said bill is, in view of the deplorable inefficiency of the alleged water service, wholly without merit in reason and equity; and “Whereas, the best interests of the city, in their opinion, demand that the present service be discontinued and immediate steps be taken for the purpose of supplying water to said city upon fair and equitable terms: therefore; “Be it resolved, That the city clerk is hereby directed to forthwith draw his warrant on the city treasurer against the water fund of said city for the said sum of $3,160.00, in favor of said Defiance Water Company, in full payment of said bill, provided, however, that if said warrant be accepted by said company, it be taken and accepted by them without thereby in any manner being construed or taken to be any acknowledgment of any contract between them and said city for said water DEFIANCE WATER CO. v. DEFIANCE. 191 U. S. Opinion of the Court. 193 rental, or in any manner implying any actual performance of any alleged contract and that no further payments at the present rate be made to said company. “ Passed Jan. 7th, 1896.” Clearly this resolution was not a law impairing the obligation of the contract. It was merely the allowance of a claim for rentals with a saving clause to prevent estoppel; and the semi-annual payments for 1896, and the first for 1897, were directed by subsequent ordinances to be made without any reservation. And the City not only denies that the resolution (or any other) had or was intended to have the effect now attributed to it, but says that if this had been otherwise the resolution would have been invalid because not passed in accordance with the statutes of Ohio in that behalf. The position of the City as disclosed by the record was, indeed, that no valid contract existed, and it was to test that question that the suit was instituted by the City Solicitor in the Court of Common Pleas, but there was no definitive legislative action taken by the City for the erection of its own waterworks, or otherwise, which was obnoxious to the prohibition of the Federal Constitution. 2. Nor does the contention that if the temporary injunction granted by the Court of Common Pleas should ultimately be made perpetual justify the assumption of jurisdiction because of violation of the Fourteenth Amendment. Litigation in the state courts cannot be dragged into the Federal courts at such a stage, and in such a way. The proposition is wholly untenable that, before the state courts in which a case is properly pending can proceed to adjudication in the regular and orderly administration of justice, the courts of the United States can be called on to interpose on the ground that the state courts might so decide as to render their final action unconstitutional. Moreover the state courts are perfectly competent to decide ederal questions arising before them and it is their duty to vol, çxçi—13 194 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. do so. Robb v. Connolly, 111 U. S. 624, 637; Missouri Pacific Railway Co. v. Fitzgerald, 160 U. S. 556, 583. And, we repeat, the presumption is in all cases that the state courts will do what the Constitution and laws of the United States require. Chicago & Alton Railroad v. Wiggins Ferry Co., 108 U. S. 18; Shreveport v. Cole, 129 U. S. 36; 7Ve«Z v. Delaware, 103 U. S. 370, 389; New Orleans v. Benjamin, 153 U. S. 411, 424. If error supervenes the remedy is found in section 709 of the Revised Statutes. The present case strikingly illustrates the applicability of these well-settled principles. The preliminary injunction was dissolved by the court by which it was granted, and the City’s suit was dismissed by the highest judicial tribunal of the State. We regard this bill as an attempt to evade the discrimination between suits between citizens of the same State and suits between citizens of different States, established by the Constitution and laws of the United States, by bringing into the Circuit Court controversies between citizens of the same State, an evasion which it has been the constant effort of Congress and of this court to prevent, Bernards Township v. Stebbins, 109 U. S. 341, 353; Shreveport v. Cole, 129 U. S. 36, 44; and are of opinion that it should have been dismissed for want of jurisdiction. The fundamental question of jurisdiction, first, of this court, and then of the court from which the record comes, presents itself on every writ of error or appeal, and must be answered by the court, whether propounded by counsel or not. Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379, 382; Metcalf v. Watertown, 128 U. S. 586; Morris v. Gilmer, 129 U. 8. 315; Continental National Bank v. Buford, ante, 119. The Circuit Court having maintained jurisdiction on the ground that the case arose under the Constitution of the United States, and having proceeded to decree, the appea was properly brought directly to this court, and it at once be came our duty to inquire whether the Circuit Court shou WARNER v. SEARLE & HERETH CO. 195 191 u, s. Statement of the Case. have retained the case. Having reached the result that the court erred in so doing, we are vested with the power to direct that conclusion to be carried into effect, and in its exercise we discharge one of our essential functions, the determination of the jurisdiction of the courts below. Morris v. Gilmer, 129 U. S. 315; Wetmore v. Rymer, 169 U. S. 115; Aztec Mining Co. v. Ripley, 151 U. S. 79. The bill was dismissed by the Circuit Court but not for want of jurisdiction, and the decree will be reversed in order that the case may be disposed of on that ground, at the costs of appellant, which takes nothing by its appeal. The decree is reversed at appellant’s costs, and the cause remanded with instructions to dismiss the bill for want of jurisdiction. WARNER v. SEARLE AND HERETH CO. appeal from the court of appeals for the seventh circuit. No. 42. Argued November 2, 3,1903.—Decided November 30,1903. • It is the use without right of the registered trade-mark of another in oreign or Indian commerce that gives jurisdiction to the Federal courts under the act of March 3, 1881. 2. The averments of the bill in this case are treated as sufficiently asserting e use of the registered trade-mark and the alleged imitation in foreign ommerce to found jurisdiction in the Circuit Court under the act as well as on diverse citizenship. t .. 38 n°t appear that the alleged imitation was used in foreign or pah T* C™raerce or on merchandise intended to be transported to a foreign untry, the decree in favor of appellee is affirmed. yiLL*AM R. Warner, a citizen of Pennsylvania, filed this th. afainst The Searle & Hereth Company, a corporation of in TVnd. Gide°n D‘ Searle and others> citizens of Illinois, i • ,e . Court of the United States for the Northern District of Illinois, alleging: 196 OCTOBER TERM, 1903. Statement of the Case. 191 u, g, That complainant “was the sole and exclusive owner and proprietor of, and had used in his business in Philadelphia and in commerce between the United States and foreign countries, and particularly with New South Wales and Victoria, a certain arbitrary and fanciful mark, termed Pancreopepsine, upon bottles and packages containing a certain medicinal preparation,” and had sold large quantities thereof “throughout the United States and in commerce with foreign countries, and particularly in the cities of Philadelphia and Chicago;” and that the public generally had come to recognize packages and bottles so marked as containing the preparation manufactured by complainant. That on December 26, 1882, complainant registered said trade-mark in the Patent Office and obtained a certificate of registration according to law, a copy of which certificate and accompanying statement and declaration was attached. That defendants had, in violation of complainant’s rights, “counterfeited, copied and colorably imitated the trade-mark registered,” and affixed the mark or symbol “to a medicinalpreparation of the same general nature as that manufactured” by complainant, and had so closely imitated complainant’s mark or symbol, and the manner of placing it on bottles and wrappers, that the public had been deceived into believing that the goods of defendants were those of complainant; “and that the said defendants, together and individually, have sold in the Northern District of Illinois, and elsewhere, large quantities of the medicinal preparation intended for the cure of indigestion similar to that manufactured by your orator and contained in packages or bottles marked with the trade-mark or symbol heretofore referred to as belonging solely to your orator, or in such close imitation of your orator’s trade-mark or symbo as has deceived the public and led such public to believe the sai mark or symbol designated the goods manufactured by yo^ orator;” so that complainant’s sales have been lessened, an profits lost. It was further averred that “the public in general, and par WARNER v. SEARLE & HERETU CO. Statement of the Case. 197 191 U. S. ticularly the citizens of the Northern District of Illinois, identify the article by the name, mark or symbol; and that the spurious article manufactured and sold by the defendants associated with the same mark or symbol, or a mark or symbol in close imitation thereof, is a fraud and deception upon such of the citizens of the Northern District of Illinois, and elsewhere, as purchase the same, believing it to be the genuine article manufactured by your orator, and thereby the public generally, and particularly the citizens of the Northern District of Illinois, are damaged and misled.” Complainant prayed for an accounting; for damages; and for injunction. Defendants in their answer, denied that the word “Pan-creopepsine” was a proper subject for registration as a trademark; and charged that “if not deceptive it is purely descriptive, being a mere compound of the ordinary names of the ingredients, or the principal ingredients, contained in the medicinal compound, with the name of one slightly modified, and they deny, on information and belief, that the public have associated the said name with the goods manufactured by the complainant.” They averred that they were engaged in business in Chicago as general manufacturing chemists, and that they had, among other things, “put upon the market a medicinal compound having special merit as an aid of digestion, consisting, aside from the diluent, of nearly forty per cent of pure pancreatin, about fifty per cent of pure pepsin, and a few other ingredients in relatively small proportions; that pancreatin and pepsin are well-known medicinal agents of recognized efficacy in promoting digestion, and have been mixed together for medicinal purposes for nearly or quite thirty years past; that they have designated their compound upon the labels of their bottles and packages ‘Pancro-Pepsin’ in order that the nature of the compound may be expressed and its purpose as a digestive implied by the name; that they have put the said preparation m bottles and sold it upon the market both as a powder and 198 191 U. S. OCTOBER TERM, 1903. Argument for Appellant. in liquid form, the latter being designated (Elixir Pancro-Pepsin. ’ ” Defendants said that in adopting the name they had only followed common usage where it was desired that the name should be generally descriptive of the compound to which it was applied, and that their compound could not be more appropriately designated; and they denied that they had in any manner or way whatsoever copied or colorably imitated complainant’s alleged trade-mark, or that they had at any time misled the public or any member thereof, into supposing that the pancro-pepsin manufactured and sold by them was of complainant’s manufacture, or that any person could have been so misled. And they averred that even if the name 11 Pancreopepsine ” could be the subject of a lawful trademark, which they denied, it had not been infringed by them. Replication was filed, evidence taken, and hearing had. The Circuit Court held that complainant’s contention touching unfair competition was not established, but that the trademark was valid and had been infringed, and granted an injunction. The case was carried to the Circuit Court of Appeals, and William R. Warner, Jr., executor, was made party in place of William R. Warner, deceased. The Circuit Court of Appeals agreed that there was no proof establishing unfair competition ; held that the monopoly claimed could not be sustained; and reversed the decree of the Circuit Court and remanded the cause with directions to dissolve the injunction and dismiss the bill. 112 Fed. Rep. 674. From that decree this appeal was prosecuted, and argued on a motion to dismiss as well as on the merits. Mr. Frank T. Brown, with whom Mr. Samuel E. Darby was on the brief, for appellant: There is a right of appeal to this court. The trade-mark is registered and the appeal to the Circuit Court of Appeals is not made final. The suit does not depend entirely upon common 199 WARNER v. SEARLE & HERETH CO. 191U. S. Argument for Appellant. law trade-mark. The use by defendant of this trade-mark in commerce with foreign nations is a question of merit and not of jurisdiction; the statute requires use by the registrant but not foreign use by infringer. United States v. Steffens, 100 U. S. 82; Watch Co. v. Watch Case Co., 87 0. G. 2323; 94 Fed. Rep. 667 and 179 U. S. 665. The constitutionality of the trade mark act is drawn in question in this suit. A statute merely requiring that on the owner of the trade-mark establishing use in commerce with foreign nations or Indian tribes the counterfeiting of the trade-mark is prohibited, is constitutional as it comes under pars. 3 and 18, § 8, art. I, giving Congress power to regulate commerce and to make all laws necessary to carry its powers into execution. Addyston v. United States, 175 U. S. 211, 228; United States v. Traffic Assn., 171 U. S. 505; Gibbons v. Ogden, 9 Wheaton, 196; Brown v. Maryland, 12 Wheaton, 419. This covers regulation of instrumentalities of such commerce. Hopkins v. United States, 171 U. S. 578. Trademarks are instrumentalities. Trade Mark Cases, 100 U. S. 82; Fulton v. Sillers, 4 Brews. 42, Pennsylvania. * On the merits there is such a resemblance between the trademarks as to deceive a purchaser using ordinary caution. Pophan v. Cole, 66 N. Y. 69; McLain v. Fleming, 96 U. S. 245; 13 0. G. 913; Coleman v. Crump, 70 N. Y. 573; Tea Co. v. Herbert, 7 Eng. Rep. Pat. & Tr. Mk. Cases, 183; Scheuer v. Muller, 74 Fed. Rep. 225; Pans Medicine Co. v. W. H. Hill Co., 102 Fed. Rep. 150; Stuart v. F. H. Stuart Co., 91 Fed. Rep. 243; Pillsbury v. Flour Mills Co., 64 Fed. Rep. 841; Johnson v. Bauer, 82 Fed. Rep. 662; Brown on Trade Marks, 2d ed. ch. 8; Upton on Trade Marks. The defendant’s defense that purchasers cannot be deceived . as to the origin of the goods because they place their name upon the bottle and package has been overruled many times. N. K. Fairbank Co. v. Central Lard Co., 64 Fed. Rep. 136; Battle v. Finlay, 45 Fed. Rep. 796; Roberts v. Sheldon, Fed. Cases No. 11,916, and cases there cited; Sawyer v. Horn, 1 Fed. Rep. 24; Hier v. Abrahams, 82 N. Y. 519; Shaver v. Heller & Merz Co., 200 OCTOBER TERM, 1903. Argument for Appellees. 191 jj, S. 96 0. G. 2229; Vulcan v. Myers, 139 N. Y. 304; Manufacturing Co. v. Trainer, 101 U. S. 51; National Biscuit Co. v. Baker, 95 Fed. Rep. 135. The defendants had notice of their infringement and refused to desist and this makes their continued use constructively fraudulent. Fuller v. Huff, 92 O. G. 1621; Orr Ewing Co. v. Johnston Co., 13 Ch. Div. 434; Marritowic Co. v. William Numsen & Sons, 93 Fed. Rep. 196; Millington v. Fox, 3 My. & C. 338; Coffeen v. Brenton, 4 McLean, 516. The prior adoption is not sustained by the proof. The sale of a few bottles will not constitute a use. The name is not by itself definitively descriptive. See Lactopeptine Cases, Carnrick v. Mackey; Same v. Morson, reported, 1877, Law Journal Notes of Cases, p. 713, and in Sebastian on Trade Marks; Carnrick v. Mackey, decided March, 1877, High Court of Justice, Chancery Division. A name merely descriptive and not definitively descriptive is a valid trade mark. Instances: Bromo Caffeine, Keasby v. Brooklyn Chemical Works, 37 N. E. 476; Momaja, Am. Grocery Co. v. Sloan, 68 Fed. Rep. 539; Cottolene, Fairbank v. Central Lard Co., 64 Fed. Rep. 133; Vitse-Ore, Noel v. Ellis, 86 O. G. 633; Bromo-Quinine, Paris Medicine Co. v. Hill, 102 Fed. Rep. 148; Bromida, Battle Co. v. Finlay, 45 Fed. Rep. 796; Royal, Raymond v. Royal Baking Powder Co., 85 Fed. Rep. 231; Asepsin, Lloyd v. Chemical Co., 25 Wkly. Law Bull. 319; Saponifier, Salt Mfg. Co. v. Meyers, 79 Fed. Rep. 87. Mr. Philip C. Dryenfor th for appellees: This court is, on the face of the pleadings, without jurisdiction. In § 6 of the Court of Appeals act of 1891, the wor “entirely” is of controlling importance and as this is really a case on common law trade-marks, the bill of complaint having been amended to show diverse citizenship, and the statutory amount involved the jurisdiction is really depen en entirely upon diverse citizenship and the judgment of t e Court of Appeals is final. American Sugar Refining Co. v. New Orleans, 181 U. S. 275; Union Pacific Railway Co. v- WARNER v. SEARLE & HERETH CO. 201 191 u. S. Argument for Appellees. Harris, 158 U. S. 326; Howard v. Stewart, 184 U. S. 754; Press Publishing Co. v. Monroe, 164 U. S. 105; Ex parte Chas. F. Jones, 164 U. S. 691; Northern Pacific Co. v. Amato, 144 U. S. 465; Sonnentheil v. Christian Morlein Co., 172 U. S. 401; Third Street & Suburban Railway Co. v. Lewis, 173 U. S. 458; The Colo. Cent. Consol. Mining Co. v. Turck, 150 U. S. 137; Borg-meyer v. Idler, 159 U. S. 407; Benjamin v. New Orleans, 169 U. S. 161. The mere recital in a bill of complaint of the registration of a trade-mark, without any allegation as to complainant’s rights thereunder to use the same in foreign commerce or with Indian tribes, will not suffice to force jurisdiction on this court. Ryder n. Holt, 128 U. S. 525; Browne on Trade Marks, 2d ed. 294; Wrisley v. Soap Co., 90 Fed. Rep. 5; Watch Case Co. v. Watch Co., 94 Fed. Rep. 667; 179 U. S. 365; Schumacher v. Schwencke, 26 Fed. Rep. 818; Trade-Mark Cases, 100 U. S. 82; Luyties v. Hollender, 21 Fed. Rep. 281; 21 Stat, at L. 504, ch. 128, § 11; Paint Co. v. Mfg. Co., 53 Fed. Rep. 493; Glen Cove Co. v. Ludeling, 22 Fed. Rep. 823; Gravely v. Gravely, 42 Fed. Rep. 265; Hennessey v. Braunschweiger, 89 Fed. Rep. 664. The alleged trade-mark was never used in foreign commerce or in commerce with an Indian tribe since the consignments referred to in the declaration for the purpose of obtaining registration, and there is no evidence that the defendants infringed in foreign commerce or with an Indian tribe. The nanie is not a proper trade-mark as it is a mere description. ^Ferro-phosporated” case, Caswell v. Davis, 58 N. Y. 223; ‘‘Air cells,” “fire-board,” Asbestos Mfg. Co. v. Ambler &c. Co., 99 Fed. Rep. 85. See also Rumford Chemical Warks v. Muth, ¿5 Fed. Rep. 524; Canal Co. v. Clark, 13 Wall. 311; Colgan v. anhaser, 35 Fed. Rep. 150; “Cresol,” etc., Soap Co. v. Thomp- 25,Fed. Rep’ 625; Hostetter v- Fries, 17 Fed. Rep. 620; Ji’ n Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 7; Coates v. Thread Co., 149 U. S. 562, 572; “Columbia,” ntl Cov. Alcorn, 150 U. S. 460; “ Pile-Leclanche ” Battery o. v. Electric Co., 23 Fed. Rep. 276; Singer Mfg. Co. v. 202 OCTOBER TERM, 1903. Opinion of the Court. 191 u, S. Stanage, 6 Fed. Rep. 279; Corwin v. Daily, Am. Tr. Mk. Cas. 265; Amoskeag Mfg. Co. v. Spear, Am. Tr. Mk. Cas. 87; Corbin v. Gould, 133 U. S. 308; Brown Chemical Co. v. Heyer, 139 U. S. 540; Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665; Harris v. Stucky, 46 Fed. Rep. 624. Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. In the Trade-Mark Cases, 100 U. S. 82, it was ruled that the act of July 8, 1870, carried forward into sections 4937 to 4947 of the Revised Statutes, was invalid for want of constitutional authority, inasmuch as it was so framed that its provisions were applicable to all commerce, and could not be confined to that which was subject to the control of Congress. But Mr. Justice Miller, speaking for the court, said that the question “whether the trade-mark bears such a relation to commerce in general terms as to bring it within Congressional control, when used or applied to the classes of commerce which fall within that control, is one which, in the present case, ve propose to leave undecided.” That decision was announced at October term, A. D. 1879, and on March 3, 1881, an act was approved entitled An act to authorize the registration of trade-marks and protect the same.” 21 Stat. 502, c. 138. By its first section it was provided that “owners of tra e-marks used in commerce with foreign nations, or with the Indian tribes, provided such owners shall be domiciled in t e United States, or located in any foreign country or tribes which by treaty, convention or law, affords similar privileges to ci i zens of the United States, may obtain registration of sue trade-marks by complying with” certain specified require ments. . , By the second section, the application prescribed y ® first “must, in order to create any right whatever in favor o„ the party filing it, be accompanied by a written declaration, WARNER v. SEARLE & HERETH CO. 203 191 U. S. Opinion of the Court. “that such party has at the time a right to the use of the trademark sought to be registered, and that no other person, firm, or corporation has the right to such use, either in the identical form or in any such near resemblance thereto as might be calculated to deceive; that such trade-mark is used in commerce with foreign nations or Indian tribes, as above indicated; ...” The third section provided that “no alleged trade-mark shall be registered unless the same appear to be lawfully used as such by the applicant in'foreign commerce or commerce with Indian tribes as above mentioned or is within the provision of a treaty, convention, or declaration with a foreign power; nor which is merely the name of the applicant; nor which is identical with a registered or known trade-mark owned by another and appropriated to the same class of merchandise, or which so nearly resembles some other person’s lawful trade-mark as to be likely to cause confusion or mis-take in the mind of the public, or to deceive purchasers.” By the fourth section certificates of registration of trademarks were to be issued, copies of which, and of trade-marks and declarations filed therewith, should be evidence ‘‘in any suit in which such trade-marks shall be brought in controversy; and by section five it was provided that the certificate of registry should remain in force for thirty years from its date, and might be renewed for a like period. Sections seven, ten, eleven and thirteen are as follows: Sue. 7. That registration of a trade-mark shall be prima faae evidence of ownership. Any person who shall reproduce, oun er eit, copy or colorably imitate any trade-mark regis-,re er ac^ and affix the same to merchandise of sub-y.the same descriptive properties as those described n e registration, shall be liable to an action on the case for nf+ta^S °r wrongful use of said trade-mark, at the suit e owner thereof; and the party aggrieved shall also have '71 accordmS to the course of equity to enjoin the g u use of such trade-mark used in foreign commerce or OCTOBER TERM, 19Ô3. Opinion of the Court. 101 tr. s. commerce with Indian, tribes, as aforesaid, and to recover compensation therefor in any court having jurisdiction over the person guilty of such wrongful act; and courts of the United States shall have original and appellate jurisdiction in such cases without regard to the amount in controversy.” “Sec. 10. That nothing in this act shall prevent, lessen, impeach, or avoid any remedy at law or in equity which any party aggrieved by any wrongful use of any trade-mark might have had if the provisions of this act had not been passed. “Sec. 11. That nothing in this act shall be construed as unfavorably affecting a claim to a trade-mark after the term of registration shall have expired; nor to give cognizance to any court of the United States in an action or suit between citizens of the same State, unless the trade-mark in controversy is used on goods intended to be transported to a foreign country, or in lawful commercial intercourse with an Indian tribe.” “Sec. 13. That citizens and residents of this country wishing the protection of trade-marks in any foreign country, the laws of which require registration here as a condition precedent to getting such protection there, may register their trademarks for that purpose as is above allowed to foreigners, and have certificate thereof from the Patent Office.” Obviously the act was passed in view of the decision that the prior act was unconstitutional, and it is, therefore, strictly limited to lawful commerce with foreign nations and with Indian tribes. It is only the trade-mark used in such com merce that is admitted to registry, and it can only be infringe when used in that commerce, without right, by another than its owner. Reading the seventh, tenth and eleventh sections toget er, we find that the registration is prima facie evidence of owner ship; that any person counterfeiting or colorably imitating any trade-mark registered under the act, is liable, in the e eral courts, to an action on the case for damages for, an injunction to restrain, its wrongful use, that is, the use o WARNER v. SEARLE & HERETH CO. 205 191 U. S. Opinion of the Court. simulated mark in foreign commerce or with the Indian tribes ; that the provisions of the act cannot operate to circumscribe any remedy which a party aggrieved by any wrongful use of any trade-mark might otherwise have had; and that the courts of the United States cannot take cognizance of an action on the case or a suit in equity between citizens of the same State, “unless the trade-mark in controversy is used on goods intended to be transported to a foreign country, or in lawful commercial intercourse with an Indian tribe.” Where diverse citizenship exists, and the statutory amount is in controversy, the courts of the United States have jurisdiction, but where those conditions do not exist, jurisdiction can only be maintained when there is interference with commerce with foreign nations or Indian tribes, and it is in such cases that the amount is declared by section 7 to be immaterial. The registered trade-mark must be used in that commerce, and is put in controversy by the use of the counterfeit or imitation on goods intended for such commerce, as prescribed by section 11. We cannot concur in the view that the mere counterfeiting or imitating a registered trade-mark and affixing the same is the ground of the action on the case, in the Federal courts, given by section 7, for it is the wrongful use of the counterfeit or imitation that creates the liability at law and justifies the remedy in equity. And the intent and object of the act forbid a construction that would bring local commerce within its scope. In the present case, diverse citizenship, and requisite amount, existed, and the Circuit Court, therefore, had jurisdiction, but it is argued that the jurisdiction depended entirely on diversity o citizenship, and hence that the decision of the Circuit Court 0 Appeals was final. We think, however, that as infringement of a trade-mark registered under the act was charged, . e averments of the bill, though quite defective, were sufficient to invoke the jurisdiction also on the ground that the 206 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. case arose under a law of the United States, and will not, therefore, dismiss the appeal. The bill was filed in February, 1898, and must be treated as alleging that the trade-mark was then in use in foreign or Indian commerce, although the proofs do not make out that fact after December 26, 1882. The certificate of registry was good for thirty years as matter of evidence, but when it was sought to enjoin the wrongful use it should have been made to appear that the trade-mark was then being used in that commerce, and that that use was interfered with, without right, by defendant. And if the presumption of continuing use in such commerce flows from the registry, nevertheless, to make out infringement, it must appear that the alleged counterfeit or imitation was being used on merchandise intended to be transported to a foreign country or in lawful commercial intercourse with an Indian tribe. We so held, in effect, in Ryder v. Holt, 128 U. S. 525, and we see no reason to depart from that ruling. But the evidence in this record does not show that defendant used the name of its preparation on merchandise intended to be so transported, while the sales proved were sales in the city of Chicago and Northern District of Illinois, and there is nothing to indicate that the preparation was intended to be used in foreign or Indian trade. In short, even if it were assumed that there could be a trademark in the use of the word “ Pancreopepsine,” which would be invaded by the use of the word “Pancro-Pepsin,” the Circuit Court could not, by virtue of the act, enjoin such use because it was not used in the commerce to which the act related. Our conclusion does not require us to consider the question of the constitutionality of the act, which, it may be adde , does not seem to have been raised in the courts below. Decree affirmed. ATKIN v. KANSAS. 207 191 U. S. Statement of the Case. ATKIN v. KANSAS. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. * No. 30. Submitted May 1, 1903.—Decided November 30,1903. Municipal corporations are, in every essential, only auxiliaries of the State for the purposes of local government. They may be created, or, having been created, may be destroyed, or their powers may be restricted, enlarged or withdrawn at the will of the Legislature, subject only to the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed. The building of a highway whether done by the State directly, or by one of its instrumentalities—a municipality—is work of a public, not private, character. It is within the power of a State, as guardian and trustee for its people and having full control of its affairs, to prescribe the conditions upon which it will permit public work to be done on behalf of itself or its municipalities. In the exercise of these powers it may by statute provide that eight hours shall constitute a day’s work for all laborers employed by or on behalf of the State or any of its municipalities and making it unlawful for any one thereafter contracting to do any public work to require or permit any laborer to work longer than eight hours per day except under certain specified conditions and requiring such contractors to pay the current rate of daily wages. And one who after the enactment of such a statute contracts for such public work is not by reason of its provisions deprived o his liberty or his property without due process of law nor denied the equal protection of the laws within the meaning of the Fourteenth Amendment even though it appear that the current rate of wages is based on private work where ten hours constitute a day’s work or that the work in excess of eight hours per day is not dangerous to the health of the laborers, ære, w ether a similar statute applicable to laborers on purely private work would be constitutional, not decided. th^TTS,CaSe inv°lves the validity under the Constitution of e mted States of the statute known as the eight-hour law ° Kansas of 1891, p. 192, c. 114, being sections 3827, 3828 \ h °f the General Statutes of 1901 of that State, h V \e sec^on that act it was provided that “Eight Ws s all constitute a day’s work for all laborers, workmen, 208 OCTOBER TERM, 1903. Statement of the Case. 191 u. S. mechanics or other persons now employed or who may hereafter be employed by or on behalf of the State of Kansas, or by or on behalf of any county, city, township or other municipality of said State, except in cases of extraordinary emergency which may arise in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life: provided, That in all such cases the laborers, workmen, mechanics or other persons so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day’s work: provided further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics and other persons so employed by or on behalf of the State of Kansas, or any county, city, township or other municipality of said State; and laborers, workmen, mechanics and other persons employed by contractors or sub-contractors in the execution of any contract or contracts within the State of Kansas, or within any county, city, township or other municipality thereof, shall be deemed to be employed by or on behalf of the State of Kansas, or of such county, city, township or other municipality thereof.” The second section declared that “ All contracts hereafter made by or on behalf of the State of Kansas, or by or on behalf of any county, city; township, or other municipality of said State, with any corporation, person or persons, for the performance of any work or the furnishing of any material manufactured within the State of Kansas, shall be deemed and considered as made upon the basis of eight hours constituting a day’s work ; and it shall be unlawful for any such corporation, person or persons to require or permit any laborer, workman, mechanic or other person to work more than eight hours per calendar day in doing such work or in furnishing or manu facturing such material, except in the cases and upon t e conditions provided in section 1 of this act.” The third section makes any officer of Kansas, or of any ATKIN v. KANSAS. 209 191U. S. Statement of the Case. county, city, township or municipality of that State, or any person acting under or for such officer, or any contractor with the State, or any county, city, township or other municipality thereof, or other person violating any of the provisions of the act, liable for each offense, and subject to be punished by a fine of not less than $50 nor more than $1,000, or by imprisonment not more than six months, or by both fine and imprisonment, in the discretion of the court. It may be stated that the act exempts existing contracts from its provisions. The present prosecution was under the above act, and was commenced in one of the courts of Kansas. The complaint in its first count charged that Atkin contracted with the municipal corporation of Kansas City to do the labor, and furnish all materials for the construction of a brick pavement upon Quindaro Boulevard, a public street of that city; and having hired one George Reese to shovel and remove dirt in execution of the work, did knowingly, wilfully and unlawfully permit and require him to labor ten hours each calendar day upon said work, there being no extraordinary emergency arising in time of war, nor any necessity for him to labor more than eight hours per day for the protection of property or of human life. The second count contained the same allegations as to the general nature of Atkin’s contract, and charged that he nn-lawfully hired Reese to labor on the basis of ten hours as constituting a day’s work by contracting to pay the current rate o wages, which in that locality was the sum of $1.50 per day, and unlawfully exacted and required of him that he labor ten ours each calendar day in order to be entitled to the current wages of $1.50 per day, there being no extraordinary emergency arising in time of war, nor any necessity for him to labor ore than eight hours for the protection of property or of human life. The defendant moved to quash each count, upon the grounds, among others, that the statute in question, in violation of the vol. cxci—14 210 OCTOBER TERM, 1903. Statement of the Case. 191U. S. first section of the Fourteenth Amendment to the Constitution of the United States, deprived him of his liberty and property without due process of law and denied him the equal protection of the laws. The motion to quash was overruled, and the case was heard upon an agreed statement of facts. It appears from that statement that the parties stipulated, for the purposes of the case, that Kansas City was under a duty to keep its streets and highways in repair, and make all contracts to grade and pave them and for all other public improvements within its limits; that the defendant entered into a contract with the city to construct a pavement on Quindaro Boulevard, a public highway in that city, and employed, among others, one George Reese to perform the labor of shoveling and removing dirt in the prosecution of that work; permitted him to work more than eight hours on each calendar day, although there was no extraordinary emergency arising in time of war, nor any necessity that he or any other person engaged on the work should work more than eight hours for the protection of property or human life; that the agreement with Reese was to pay fifteen cents per hour and no more, the current rate of wages for such work in that locality being $1.50 for ten hours’ labor per day; and that the defendant exacted and required of him that he work ten hours each calendar day in order to be entitled to the current wages of $1.50 per day, that if the contractor had been compelled to pay Reese and other laborers at the rate of $1.50 per day for eight hours work, his compensation would have been diminished by one hundred dollars; that Reese was not compelled, required or requested to work more than eight hours in any one day, u did so voluntarily, and was permitted and allowed to wor ten hours in each calendar day in order to earn $1.50 in a ca endar day; that he was employed at his own solicitation, an entered into the agreement with Atkin freely, and worke a the time and place mentioned in the complaint with the know edge, consent and permission of defendant; that it was not 6 ATKIN v. KANSAS. 211 191 U. S. Statement of the Case. intention, expectation, desire or agreement of Reese or of the defendant that the former should ask, demand or receive the same compensation for eight hours’ work as was paid for ten hours’ work each calendar day to laborers doing the same kind of work for persons having contracts with private persons or corporations; that he was hired and employed without the knowledge or consent of the city, and neither the city nor its officers, had or exercised any control or supervision over him, he being the servant of the defendant and not of the city ; and, that the contract between the defendant and the city did not contain any provision as to the number of hours laborers should work in a calendar day, nor any provision as to their compensation, but left the contractor free as to the means and manner of performing his contract. It was also stipulated that the labor performed by Reese was healthful out-door work, not dangerous, hazardous or in any way injurious to life, limb or health, and could be performed for a period of ten hours during each working day of the week without injury from so doing, and that the labor he was employed to perform, and did perform,11 was in no respect or manner more dangerous to the health or hazardous to life or limb or to the general welfare of the said George Reese or other persons doing such work than the labor performed by persons doing the same kind of or character of work as the employés or [of] contractors having contracts to do the same kind of work for private persons, firms or corporations, or as the servants of private persons, firms or corporations.” It was further stipulated that the work of shoveling and removing dirt in the construction of a pavement was in all respects the same whether the pavement be constructed for a C1 y of other municipality or for a private person, firm or corporation. Such was the case presented for the determination of the trial court. The prosecution resulted in a judgment against the defend-» t, and he was sentenced to pay a fine of fifty dollars on each 212 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 U. g, count of the complaint. Motions in arrest of judgment and for new trial having been denied, the case was taken to the Supreme Court of Kansas, which affirmed the judgment and sustained the validity of the statute. Mr. T. A. Pollock for plaintiff in error: The provisions of the law of 1891 constituting eight hours a day’s work for persons employed by contractors engaged in paving streets for cities and requiring such contractors to pay their employes for eight hours’ work the current rate of wages for ten hours’work, in this case, are in conflict with section 1 of the Fourteenth Amendment to the Constitution of the United States. Such provisions deprive the plaintiff in error of his liberty and property without due process of law. For legal meaning of word “liberty,” see Williams v. Fears, 179 U. S. 270; Allgeyer v. Louisiana, 165 U. S. 578; Butchers’ Union &c. v. Crescent City Live Stock Co., Ill U. S. 746, and see also p.755; Bracewells.People, 147 Illinois, 65; S. C., 35 N. E. Rep. 62; States. Coal Co., 36 W. Va. 856; >8. C., 15 S. E.Rep. 1000. As to due process of law see Holden s. Hardy, 169 U. 8. 366. The provisions also deny the contractor equal protection of the laws. The act is class legislation; it discriminates without reason. It has been held not to apply to contractors for work on penitentiaries or charitable institutions. State s. Martindale, VI Kansas, 147. For purpose of the law, see In re Ashby, 60 Kansas, 106. The Fourteenth Amendment was passed to prevent discriminations and class legislation. The wor s “due process of law” and “equal protection of laws are synonymous with “the law of the land.” They mean a law binding upon every member of the community under similar circumstances. Wally’s Heirs s. Kennedy, 2 Yerg, 554, Ban v. Okely, 4 Wheat. 235;States. Loomis, 115 Missouri, 307 22 S. W. Rep. 351; County of Santa Clara s. R. R. Co., 18 Fed. Rep. 398; Ex parte Virginia, 100 U. S. 339; Barbier s. Conno y, 113 U. S. 27, The power of legislatures to classify subjects oi ATKIN v. KANSAS. 213 191 U. S. Argument for Plaintiff in Error. legislation is conceded but this does not mean arbitrary designation. Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Missouri v. Lewis, 101 U. S. 22, 31. The equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U. S. 356, 369; Duncan v. Missouri, 152 U. S. 377; Hayes v. Missouri, 120 U. S. 350; Gulf &c. R. R. Co. v. Ellis, 165 U. S. 150; State v. Hammer, 42 N. J. L. 438; Appeal of Ayars, 122 Pa. St. 266; N. C., 16 Atl. Rep. 363. The courts determine whether the classification is arbitrary. Pell v. Newark, 40 N. J. L. 79; Connolly v. Pipe Co., supra ; Holden v. Hardy, 169 U. S. 366. Similar labor laws have been held unconstitutional. New York State v. Coler, 166 N.Y. 18; S. C., 59 N. E. Rep. 716; People v. Coler, 67 N. Y. Supp. 701. A municipal corporation in matters affecting its property and private contract rights enjoys practically the same immunity from legislative interference for the benefit of private corporations or individuals as is accorded to business corporations and private citizens. Board of Park Comrs. v. Detroit, 28 Michigan, 228; Citizens’ Sav. & Loan Assn. v. Topeka, 87 U. S. 655; People v. Batchel-lor, supra; Weismer v. Village of Douglas, 64 N. Y. 91; Board, v.Blodgett, 155Illinois, 441; 40N. E. Rep. 1025; Peoples. Orange Co. Road Assn., 66 N. E. 895 ; Ohio, Cleveland v. Clement Bros., 65 N. E. Rep. 885, citing Palmer v. Tingle, 55 Ohio St. 425 ; 45 N. E. Rep. 313; Indiana, Street v. Varney Electrical Supply Co., 67 N. E. 129 ; California, In re Kubach, 85 California, 274; 24 Pac. Rep. 737; Illinois, Fiske v. People, 188 Illinois, 206; 58 N. E. Rep. 985, citing Ritchie v. People, 155 Illinois, 98; 40 N. E. Rep. 1028; United States v. Marshall, 94 .U. S. 400; Washington, Seattle v. Smyth, 22 Washington, 327; 60 Pac. Rep. 1120; Nebraska, Low v. Rees Printing Co., 41 Nebraska, 127; 59 N. W. Rep. 362, citing Trumble v. Trumble, Nebraska, 340; Colorado, In re Morgan, 58 Pac. Rep. 1071; In re Eight Hour Law, 21 Colorado, 29; 39 Pac. Rep. 328; Missouri, State v. Loomis, 155 Missouri, 307; 22 S. W. Rep. 350; Kansas, State v. Haun, 61 Kansas, 146; 59 Pac. Rep. 340. bee Cooley’s Const. Lim. 6th ed. 484. âi4 OCTOBER TERM, 1903. 191 U. S. Argument for Plaintiff in Error. The courts of almost every State in the Union have united in declaring such legislation as is attempted in the act under consideration to be unconstitutional, vicious and void. In addition to the cases heretofore cited, see In re Jacobs, 98 N. Y. 98; People v. Mark, 99 N. Y. 378; People v. Gilson, 109 N. Y. 389 ; Colon v. Lisk, 153 N. Y. 188 ; People v. Hawkins, 157 N. Y. 1 ; People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116; People ex rel. Treat v. Coler, 166 N. Y. 144; Godcharles v. Wige-man, 113 Pennsylvania, 431; 6 Atl. Rep. 354; Bramley v. Norton, 5 Ohio N. P. 183; State v. Goodwill, 33 West Va. 179; 10 S. E. Rep. 285; State v. Fire Creek Co., 33 West Va. 188; 10 S. E. Rep. 288; Ramsey v. People, 142 Illinois, 380; Frorer v. People, 141 Illinois, 171; Braceville Coal Co. v. People, 147 Illinois, 66; 35 N. E. Rep. 62; Ritchie v. People, 155 Illinois, 98; Gillespie v. People, 58 N. W. Rep. 1007 ; In re Preston, 59 N. W. Rep. 109; Commonwealth v. Perry, 155 Massachusetts, 1107; City of Denver v. Bach, 58 Pac. Rep. 1089. The Supreme Court of Kansas followed In re Dalton, 61 Kansas, 257 ; 59 Pac. Rep. 336. In this case as well as in that case there are flagrant errors. The statute is not a mere rule of procedure for the State or its municipalities but affects many persons who are in no sense the agents of the State or its municipalities. The statute was not to prevent cities abusing their power to improve streets and levy taxes, but to reduce the toil of certain laborers without reducing their pay. The State is not a person within the meaning of that word as used in the Fourteenth Amendment. The constitution of Kansas prevents the State from being a party in carrying on any works of internal improvement. As to this see Attorney General v. Pingree, 79 N. W. Rep. (Michigan) 814; People v. Board, 25 Michigan, 152. Employés of contractors are not employés of cities. United States v. Driscoll, 96 U. S. 421. Contracts for paving streets are matters pertaining to cities in their private corporate ca pacity. Commissioners v. Topeka, 39 Kansas, 197; Han v. Ohio Township, 62 Kansas, 318. The duty to repair streets ATKIN v. KANSAS. 215 191 U. S. Argument for Plaintiff in Error. is private, not governmental. Lynn v. Turner, Cowp. 86; Henley v. Lyme Regis, 5 Ring. 91; Jones on Negligence of Mun. Corp. § 58; Livingston v. Thompson, 68 S. W. Rep. 477; O’Rouke v. City of Sioux Falls, 54 N. W. Rep. 1044. In Norwood v. Baker, 172 U. S. 169, it was held that special assessments cannot be levied in excess of special benefits. See Gilmore v. Hentig, 33 Kansas, 156; Mason v. Spencer, 35 Kansas, 512; Newman v. Emporia, 41 Kansas, 583; Atchison v. Price, 45 Kansas, 296. With respect to its private or proprietary rights and interests, a municipal corporation is entitled to the protection of the constitution, like other corporations. City of New Orleans n. New Orleans Water Works Co., 142 U. S. 79; State v. Denny (Indiana), 21 N. E. Rep. 252; Saving Fund Soc’y v. Philadelphia, 31 Pennsylvania, 183; 72 Am. Dec. 730; State v. Fox (Indiana), 63 N. E. Rep. 19; Board of Park Commissioners v. Detroit, 28 Michigan, 240; cited approvingly in Blades v. Board &c. (Michigan), 81 N. W. Rep. 271; Helena Consol. Water Co. n. Steele, 20 Montana, 1; 49 Pac. Rep. 382; People v. Chicago, 51 Illinois, 17; Dillon’s Munc. Cor. 4th ed. 129; article on “The Right to Local Self-Government,” 13 Harv. Law Rev. 441, and cases there cited; Stockwell v. Rutland, 53 At. 132; Peters v. Lindsborg, 40 Kansas, 654; La Clef v. Concordia, 41 Kansas, 323; Caldwell v. Prunelle, 57 Kansas, 511. The legal distinction between municipal corporations proper —cities and quasi corporations has been often recognized and enforced in the State of Kansas. Beach v. Leahy, 11 Kansas, 23, Illinois T. & S. Bank v. Arkansas City, 22 C. C. A. 271; State v. Topeka Water Co., 61 Kansas, 547; State v. Hunter, 38 Kansas, 582. The question as to whether a city in contracting to pave a street is acting in its private capacity, as a representative of its citizens, is a question of general law not dependent upon any constitutional or statutory provision of the State of Kansas. The state court cites People v. Beck, 30 N. Y. Supp. 473, now overruled, and t/nited States v. Martin, 94 U. S. 400. This 216 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191V. S. court is not bound by the decision of the state court, but will determine for itself the law of this case. Olcott v. Supervisors, 16 Wall. 678. The statute may be held void as to cities and their contractors only. It might be held constitutional as to the state and quasi public corporations such as counties, townships and school districts and unconstitutional as to cities. Emporia v. Norton, 13 Kansas, 570. The statute so far as it limits the hours of employment on public works has no relation to the public health, safety or morals and cannot be held valid as a police regulation. People v. Beck, 10 Mise. N. Y. 83; State v. Martindale, 47 Kansas, 147; Holden v. Hardy, 169 U. S. 366, related to a statute passed under constitutional provisions as to health of miners, and People v. Phy je, 136 N. Y. 554; Commonwealth v. Hamilton Mjg. Co., 120 Massachusetts, 383; United States v. Martin, 94 U. S. 400, are not applicable. The plaintiff in error has not waived his right to question the constitutionality of the statute under consideration. He was advised by counsel and contracted under the belief that the statute under consideration was unconstitutional and void. The contract did not contain any stipulation with reference to the hours of labor or the compensation to be paid to laborers. Even if the contract had contained such provisions they would not prevent the plaintiff from attacking the constitutionality of the statute. Cleveland v. Clements Bros., 65 N. E. Rep. 885, People v. Coler, 166 N. Y. 1; Marshall v. Nashville, 71 8. W. Rep. 815; Sweet v. People, 65 N. E. Rep. 1094; People v. Feath erstonhaugh, 64 N. E. Rep. 802. Even if the Legislature had the right to regulate the ours of labor of persons employed by a municipal corporation, nevertheless the statute in question is not justified, because i is as well, an encroachment upon the right of the in wi ua employer and employé to contract as they shall see ’ an the fact that the Legislature has chosen for the execu ion o its unlawful purpose the medium of the state and mlæ*C1E corporations cannot prevent this court from setting asi ATKIN v. KANSAS. 217 191 U. S. Argument for Defendant in Error. statute as an insidious attempt to encroach upon individual rights and liberties. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 126, ancl cases cited; Foster n. Scott, 136 N. Y. 577. Mr. C. C. Coleman, Attorney General of the State of Kansas, and Mr. N. H. Loomis, for defendant in error: For thirteen years this law has been one of the features of state legislation in Kansas. Every city, every county, every municipality, which has let a contract, and every contractor who has made a bid therefor, for public work in Kansas, for thirteen years, has done so with the full knowledge of the law. Every laboring man in the State for so long has known of the advantage to him of employment upon public enterprises carried on under the direct or indirect authority of the State. Whenever assailed the law has received the sanction of the highest courts of the State. In re Ashby, 60 Kansas, 160; In re Dalton, 61 Kansas, 255, 257; The State v. Atkin, 64 Kansas, 174. It is similar to the United States eight hour law upheld in United States v. Martin,94U.S. 400. Appellant’s liberty has not been disturbed. The theory upon which the Supreme Court of Kansas in this and similar cases has proceeded is: First, that the opening, im— provement and maintenance of public highways, the construction of court-houses, the requirements for street and road work, are public governmental functions, for which the State is primarily responsible, and the maintenance and performance of which the sovereign people have the right to require at the ands of the State. State v. Atkin, 64 Kansas, 176; People v. Flagg, 46 N.Y. 401. Second, that cities, counties, and other municipal organiza-ions, in so far as their control of such enterprises is concerned, are ut agencies of the State for carrying out these governmental functions. General Statutes, 1901, § 727, subd. 34; n re Dalton, 61 Kansas, 264, and cases cited; Williams v. Eggleston, 171 U. S. 310; Kelly v. Pittsburg, 104 U. S. 78; For 218 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. syth v. Hammond, 166 U. S. 518; People v. Beck, 10 Mise. N. Y. 77. Third, that contractors with the State or city must make their estimates with reference to the state’s regulations of wages and hours, and doing so are fully protected in their rights. There is no discrimination against appellant. Unless it appears from the law itself, or from the facts of the case at bar, that some discrimination is exercised or exerted against the plaintiff himself, he cannot be heard to say in opposition to the law that the rights of some other person or class of persons are infringed by it. He can only complain if his own rights are offended against. This principle is fundamental. State v. Smiley, 69 Pac. Rep. 199; City v. Railway Co., 59 Kansas, 427 ; Clark v. City, 176 U. S. 114; Supervisors v. Stanley, 105 U. S. 305; Railroad Co. v. Montgomery, 152 Indiana, 1; 74 Am. St. Rep. 302, 311. The paving of a street is a governmental power. Branson v. Philadelphia, 47 Pennsylvania, 329; State v. Commissioners, 28 Kansas, 431. There is no claim made that the statute is enacted peculiarly by virtue of the police power of the State. Mr. Justice Harlan, after making the foregoing statement, delivered the opinion of the court. The case has been stated quite fully, in order that there may be no dispute as to what is involved and what not involved in its determination. No question arises here as to the power of a State, consistently with the Federal Constitution, to make it a criminal offense for an employer in purely private work in which the pub c has no concern, to permit or to require his employés to perform daily labor in excess of a prescribed number of hours. ne phase of that general question was considered in Holden v. Hardy, 169 U. S. 366, in which it was held that the Constitution of the United States did not forbid a State from enacting a statute providing—as did the statute of Utah there invo ve ATKIN v. KANSAS. 219 191 U. S. Opinion of the Court. —that in all underground mines or workings and in smelters and other institutions for the reduction or refining of ores or metals, the period of the employment of workmen should be eight hours per day, except in cases of emergency when life or property is in imminent danger. In respect of that statute, this court said: “The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction or refining of ores or metals. These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employés, and so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the Federal Courts. While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases, generated by the processes of refining or smelting.” As already stated, no such question is presented by the present record; for, the work to which the complaint refers is that performed on behalf of a municipal corporation, not private work for private parties. Whether a similar statute, applied to laborers or employés in purely private work, would be con-s itutional, is a question of very large import, which we have no occasion now to determine or even to consider. ssuming that the statute has application only to labor or work performed by or on behalf of the State, or by or on behalf a municipal corporation, the defendant contends that it is m conflict with the Fourteenth Amendment. He insists that 1 f mendnient guarantees to him the right to pursue any u calling, and to enter into all contracts that are proper, ecessary or essential to the prosecution of such calling; and 220 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. that the statute of Kansas unreasonably interferes with the exercise of that right, thereby denying to him the equal protection of the laws. Allgeyer v. Louisiana, 165 U. S. 578; Williams v. Fears, 179 U. S. 270. In this connection, reference is made by counsel to the judgment of the Supreme Court of Kansas in Ashby’s Case, 60 Kansas, 101,106, in which that court said: “When the eight-hour law was passed the Legislature had under consideration the general subject of the length of a day’s labor, for those engaged on public works at manual labor, without special reference to the purpose or occasion of their employment. The leading idea clearly was to limit the hours of toil of laborers, workmen, mechanics, and other persons in like employments, to eight hours, without reduction of compensation for the day’s services.” “If a statute,” counsel observes, “such as the one under consideration is justifiable, should it not apply to all persons and to all vocations whatsoever? Why should such a law be limited to contractors with the State and its municipalities? . . . Why should the law allow a contractor to agree with a laborer to shovel dirt for ten hours a day in performance of a private contract, and make exactly the same act under similar conditions a misdemeanor when done in the performance of a contract for the construction of a public improvement? Why is the liberty with reference to contracting restricted in the one case and not in the other?” These questions—indeed, the entire argument of defendant s counsel—seem to attach too little consequence to the relation existing between a State and its municipal corporations. Such corporations are the creatures, mere political subdivisions, of the State for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What'they lawfully do of a public character is done under the sanction of the State. They are, in every essential sense, only auxiliaries of the State for the purposes of local government. They may be created, or, having been ATKIN v. KANSAS. 221 191 U. S. Opinion of the Court. created, their powers may be restricted or enlarged, or altogether withdrawn at the will of the Legislature; the authority of the Legislature, when restricting or withdrawing such powers, being subject only to the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed. Rogers v. Burlington, 3 Wall. 654, 663; United States v. Railroad Co., 17 Wall. 322, 328-329; Mount Pleasant v. Beckwith, 100 U. S. 514, 525; State Bank of Ohio v. Knoop, 16 How. 369, 380; Hill v. Memphis, 134 U. S. 198, 203; Barnett v. Denison, 145 U. S. 135,139; Williams v. Eggleston, 170 U. S. 304, 310. In the case last cited we said that “ a municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the State for conducting the affairs of government, and as such it is subject to the control of the Legislature.” It may be observed here that the decisions by the Supreme Court of Kansas are in substantial accord with these principles. That court, in the present case, approved what was said in City of Clinton v. Cedar Rapids & Missouri River R. R. Co., 24 Iowa, 455, 475, in which the Supreme Court of Iowa said: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the Legislature. It breathes into them the. breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the Legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations of the State, and the corporations could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the Legislature.” See also In re Dalton, 61 Kansas, 257; State ex rel. v. Lake Koen Co., 63 Kansas, 394; State ex rel. v. Com’rs of Shawnee Co., 28 Kansas, 431, 433; Mayor &c. v. Groshon, 30 Maryland, 436, 444. The improvement of the Boulevard in question was a work 222 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. of which the State, if it had deemed it proper to do so, could have taken immediate charge by its own agents; for, it is one of the functions of government to provide public highways for the convenience and comfort of the people. Instead of undertaking that work directly, the State invested one of its governmental agencies with power to care for it. Whether done by the State directly or by one of its instrumentalities, the work was of a public, not private, character. If, then, the work upon which the defendant employed Reese was of a public character, it necessarily follows that the statute in question, in its application to those undertaking work for or on behalf of a municipal corporation of the State, does not infringe the personal liberty of any one. It may be that the State, in enacting the statute, intended to give its sanction to the view held by many, that, all things considered, the general welfare of employes, mechanics and workmen, upon whom rest a portion of the burdens of government, will be subserved if labor performed for eight continuous hours was taken to be a full day’s work; that the restriction of a day’s work to that number of hours would promote morality, improve the physical and intellectual condition of laborers and workmen and enable them the better to discharge the duties appertaining to citizenship. We have no occasion here to consider these questions, or to determine upon which side is the sounder reason ; for, whatever may have been the motives controlling the enactment of the statute in question, we can imagine no possible ground to dispute the power of the State to declare that no one undertaking work for it or for one of its municipal agencies, should permit or require an employe on such work to labor in excess of eight hours each day, and to inflict punishment upon those who are embraced by such regulations and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the State. On the contrary, it belongs to the State, as the guardian and trustee for its people, and having control of its affairs, to pre ATKIN V. KANSAS. 223 191 U. S. Opinion of the Court. scribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities. No court has authority to review its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern. If it be contended to be the right of every one to dispose of his labor upon such terms as he deems best—as undoubtedly it is—and that to make it a criminal offense for a contractor for public work to permit or require his employé to perform labor upon that work in excess of eight hours each day, is in derogation of the liberty both of employés and employer, it is sufficient to answer that no employé is entitled, of absolute right and as a part of his liberty, to perform labor for the State; and no contractor for public work can excuse a violation of his agreement with the State by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do. So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives. We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true—indeed, the public interests imperatively demand—that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question’ in violation of the fundamental law of the Constitution, It cannot be affirmed of 224 OCTOBER TERM, 1903. Opinion of the Court 191 U. S. the statute of Kansas that it is plainly inconsistent with that instrument; indeed its constitutionality is beyond all question. Equally without any foundation upon which to rest is the proposition that the Kansas statute denied to the defendant or to his employé the equal protection of the laws. The rule of conduct prescribed by it applies alike to all who contract to do work on behalf either of the State or of its municipal subdivisions, and alike to all employed to perform labor on such work. Some stress is laid on the fact, stipulated by the parties for the purposes of this case, that the work performed by defendant’s employées not dangerous to life, limb or health, and that daily labor on it for ten hours would not be injurious to him in any way. In the view we take of this case, such considerations are not controlling. We rest our decision upon the broad ground that the work being of a public character, absolutely under the control of the State and its municipal agents acting by its authority, it is for the State to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulations, infringe the personal rights of others ; and that has not been done. The judgment of the Supreme Court of Kansas is Affirmed. The Chief Justice, Mr. Justice Brewer and Mr. Justice Peckham, dissent. LOUISVILLE TRUST CO. v. KNOTT. 225 191 U. S. Statement of the Case. LOUISVILLE TRUST COMPANY v. KNOTT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF KENTUCKY. No 389. Submitted October 13,1903. —Decided November 30,1903. The question of jurisdiction which the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, permits to be certified directly to this court must be one involving the jurisdiction of the Circuit Court as a Federal court, and not simply its general authority as a judicial tribunal to proceed in harmony with established rules of practice governing courts of concurrent jurisdiction as between themselves. Where the Circuit Court has jurisdiction and appoints a receiver the question of jurisdiction under the above act cannot, on the intervention of a receiver appointed by the state court, be decided and certified directly to this court to ascertain whether the Circuit Court or the state court had prior authority over the trust estate involved in the litigation. This court need not consider itself bound as to a question of jurisdiction because it may have exercised jurisdiction in a case where the question might have been raised but passed sub silentio. United States v. More, 3 Cranch, 159, 172. This case arises out of the conflicting claims by the Circuit Court of the United States for the Western District of Kentucky, and the Circuit Court of Jefferson County, Kentucky, Chancery Branch, as to the right to administer the property and affairs of the Evening Post Company, a corporation of Kentucky. The Federal court having possession, by its Receiver, of the property of that company, declined to surrender possession to the Louisville Trust Company, the Receiver appointed by the state court. From the final order dismissing the intervening petition of the latter company, the present appeal was prosecuted. That order stated: “This appeal is granted solely upon the question of jurisdiction over the subject-matter of the trust estate of the Evening Post Company in controversy, and the question of whether this court, or the said Jeffersoii vol. cxci—15 226 OCTOBER TERM, 1903. 191U. S. Statement of the Case. Circuit Court, Chancery Branch, First Division, has prior jurisdiction in [is] the single question upon which this cause is decided as to the said Louisville Trust Company; this court holding that its jurisdiction over the said trust estate of the Evening Post Company is prior and exclusive of the said Jefferson Circuit Court, Chancery Branch, First Division, all of which is hereby certified on the appeal of the said Louisville Trust Company as Receiver, &c., to the Supreme Court of the United States for review as required by law.” It will be more satisfactory and conduce to a clear understanding of the precise grounds upon which our decision must rest if the principal facts in the history of this controversy be stated. On the 30th day of April, 1903, at a meeting of the stockholders of the Post Company, a resolution was adopted—all the stockholders except the owners of forty-eight shares concurring—by which the Columbia Finance and Trust Company was appointed liquidator of that corporation, with authority to conduct its business and affairs for the benefit of stockholders until its property could be sold and possession delivered to the purchaser in accordance with the statute of Kentucky. The liquidator was directed from the proceeds of sale to pay the debts of the corporation, and to distribute any balance remaining among stockholders according to their legal rights. It took immediate possession of all the property, books and papers of the Post Company. On the 10th day of May, 1903, another corporation was organized under the laws of Kentucky. It is referred to in the record as the New Evening Post Company. To that company the liquidator on May 18th, 1903, leased the property and assets of the old company, until a sale should take place. Prior to the making of that instrument, to wit, on May 12th, 1903, the executors and executrix of the estate of W.N. Haldeman commenced a suit in the Jefferson (Kentucky) Circuit Court, Chancery Branch, First Division, against the old Post LOUISVILLE TRUST CO. v. KNOTT. 227 191 U. S. Statement of the Case. Company, the Columbia Finance and Trust Company, Richard W. Knott, J. M. Atherton, John R. Knott, Eugene Q. Knott and Laura G. Boyle—the plaintiffs and the individual defendants being respectively owners of stock in the old company. The object of that suit, as disclosed by the petition, was to obtain a settlement of the accounts of the company and of its liquidator; and to that end the plaintiffs asked a reference of the cause to the commissioner of the court to audit and settle the accounts of the Columbia Finance and Trust Company, and after such auditing and settlement, that the assets of the company be sold, and the proceeds distributed according to law. The plaintiffs further prayed that pending the action and until the final liquidation of the affairs of the old company and the sale of its assets, the court determine whether its affairs should be continued in operation, and if so that the management of the plant be under the direction of the court; further, that a preliminary order be entered, commanding and directing the defendants and each of them to allow the plaintiffs reasonable access to and an examination of the books, papers, documents and affairs of the old company, including all documentary information in connection therewith in the possession of defendants or of either of them. On the 19th of May, 1903, upon due notice, the plaintiffs moved for an order directing the defendants to allow the plaintiffs, their counsel and accountant, reasonable access to and inspection of the books, records and documents of the old company, relating to its assets, liabilities and business affairs. To that motion the defendants objected, and the motion was assigned for hearing on May 23d, 1903. On the day last named the parties appeared, the plaintiffs filed affidavits in support of their motion, and the defendants interposed a demurrer to the petition, as well as filed their several answers. The motion and demurrer were heard in part, and the further hearing of them was postponed until May 25th, 1903. On the latter day, the hearing not being concluded, the cause was postponed until the 30th of May, on which day it was sub 228 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. mitted on the pending motion of plaintiffs, on defendants’ demurrer to the petition, and on a motion of the Columbia Finance and Trust Company, entered on that day, for leave to file an amended and supplemental answer. By an order entered June 4th, 1903, the plaintiffs’ motion, made on the 19th day of May, 1903, was sustained, and the defendants, and each of them, were commanded and directed, until the further orders of the court, to allow and afford the plaintiffs, their attorneys or accountant, during business hours, reasonable access to and an inspection of the books, records and documents of the Post Company, touching its condition and business affairs, and especially touching its assets and liabilities, and the considerations paid or received therefor. The demurrer of the defendants was also overruled, and the objection to the filing of the amended and supplemental answer of the Columbia Finance and Trust Company, trustee, tendered May 30th, 1903, was sustained. While the above motion in the state court was pending, Stuart R. Knott, a citizen of Missouri, and not a party to the suit in the state court, obtained, May 26th, 1903, in the Circuit Court of the United States for the Western District of Kentucky, a judgment against the old company for $6,000 with interest from April 30th, 1903. Upon that judgment execution immediately issued and was returned the next day, May 27th, 1903, “no property found.” And on the latter day the present suit was commenced by him in the Unite States Circuit Court, against the Evening Post Company, Columbia Finance and Trust Company, R. W. Knott, B. • Boyle and E. Q. Knott, each defendant being a citizen of Kentucky. The prayer of the bill was that the court at once appoint a Receiver of all the rights, properties, franchises, books of account, records, documents, choses in action an all other things belonging to the Post Company, forthwit to report what such property is, and what arrangement can be made for the continued publication of said paper unt’ a decree could be entered directing a sale herein; that all proper Louisville trust co. knott. 229 191U. S. Statement of the Case. equitable relief may be had looking to the administration of the estate of the company and the payment of its just debts; and to that end the sale of its property and the bringing of any money produced by such sale into the registry of the court for distribution among creditors. On the 28th day of May, 1903, all the defendants in the suit in the United States Circuit Court assenting thereto, a Receiver of the property and assets of the Post Company was appointed by that court, and the defendants were directed forthwith to deliver to him all such property and assets of every kind and description. That Receiver took immediate possession and, under the authority of the court, entered into a contract with the new company for the publication of the paper until the assets of the old company were sold. The plaintiff in the suit in the state court entered, June 13th, 1903, a formal motion to appoint a Receiver to take charge of and manage the property and affairs of the Post Company; and on June 18th the defendants in that suit appeared and objected to the motion upon the ground that the assets of the company were already in the possession and under the control of a Receiver appointed by the United States Circuit Court in the suit instituted by Stuart R. Knott. This objection was overruled, and the state court, by order entered June 27th, 1903, appointed the Louisville Trust Company receiver, with authority to claim and take possession of the property and assets of the Post Company. By the same order the commissioner of the court was directed to audit, state and settle the accounts of the Columbia Finance and Trust Company as liquidator and trustee of the old Post Company. Subsequently, June 30th, 1903, the state court, by order then entered, directed its Receiver to intervene in the suit instituted in the Federal Court and claim the estate in question for administration and settlement in the state court. The latter court was of the opinion that its jurisdiction to administer the said trust estate first attached, and in order that the relief sought at its hands might be granted it was neces 230 OCTOBER TERM, 1903. Argument for Appellant. 191 U. 8. sary that it have possession and control of the property of the Post Company. Its Receiver was therefore ordered to intervene in the suit pending in the Federal court, claim the trust estate for administration and settlement in the state court, and test the question as to the prior jurisdiction of the state court over the subject matter. Pursuant to that order the Louisville Trust Company intervened in the suit in the Federal court and moved that its Receiver be directed to turn over the property to the Receiver of the state court. This motion was denied, Judge Evans, of the Federal court, accompanying the denial of the motion with an elaborate opinion, Knott v. Evening Post Co., 124 Fed. Rep. 342, which concluded as follows: “First, that the proceedings in the suit in the state court, when given their just effect, had not in any way when this court’s Receiver was appointed, brought into the custody of that court any property of the Evening Post Company, nor could they be regarded as having, in fact, done so even if their scope were measured by the prayer of the plaintiff’s petition, rather than its averments; second, that it was, therefore, open to this court to appoint a Receiver, and thereby judicially seize the property of the company at the instance of a judgment creditor; and, third, that having thus first acquired jurisdiction over the property thus seized, the established principles of law and the plain rights of the judgment creditor demand that this court shall maintain its jurisdiction over it under these circumstances as certainly as it would have abandoned it if the first seizure had been by the state court. It results that the motion of the intervening petitioner must be overruled and denied, and intervening petition dismissed.” Mr. John L. Dodd, Mr. David W. Baird, Mr. J. C. Dodd, Mr. Aaron Kohn and Mr. T. W. Spindle for appellant: The Federal circuit court, sitting at Louisville in the Western District of Kentucky, has no supervisory or revisory power over suits properly instituted and pending in a state LOUISVILLE TRUST CO. v. KNOTT. 231 191 U. S. Opinion of the Court. circuit court of concurrent jurisdiction over the same territory. § 720, U. S. Rev. Stat.; Haines v. Carpenter, 91 U. S. 254; Sargent v. Helbon, 115 U. S. 350; Taylor v. Carryl, 20 How. 595; Wiswall v. Sampson, 114 How. 65; Peck v. Jenness, 7 How. 624; In re Tyler, 149 U. S. 181; Orton v. Smith, 18 How. 266; Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall. 334; Covell v. Hyman, 111 U. S. 182; Gumbel n. Pitkin, 124 U. S. 143; Moran v. Sturgis, 154 U. S. 256; Central Bank v. Stevens, 169 U. S. 432; Shields v. Coleman, 157 U. S. 178; Harkrader v. Wadley, 172 U. S. 148; Farmers Loan Co. v. Lake St. Rd. Co., 177 U. S. 61; Merritt v. Am. Steel Barge Co., 79 Fed. Rep. 231; >8. C., 24 C. C. A. 530; Heidritter v. Oil Cloth Co., 112 U. S. 294, 305; Adams v. Mercantile Trust Co., 66 Fed. Rep. 621; >8. C., 30 U. S. App. 204; S. C., 15 C. C. A. 1; Hatch v. Bancroft, 67 Fed. Rep. 807; Powers v. Blue Grass Bld’g Assn., 86 Fed. Rep. 705. Mr. Alexander P. Humphrey and Mr. James P. Helm for appellee: The lower court did not err in refusing to surrender to the state court the control over assets acquired almost a month before the state court was asked or undertook to appoint a receiver. See cases cited in opinion of the Circuit Court. Amongst them Shields v. Coleman, 157 U. S. 177; Gaylor v. Ft. Wayne &c. R. R., 6 Bissell, 286, 291; Moran v. Sturgis, 154 U. S. 256, 270; High on Receivers, 3d ed. § 50; Compton v. Jesup, 68 Fed. Rep. 263; Dickerman v. Northern Trust Co., 176 U. S. 188. Mr. Justice Harlan, after making the foregoing statement, delivered the opinion of the court. We are of opinion that the judgment of the Circuit Court dismissing the intervening petition of the Louisville Trust Company is not subject to review here upon direct appeal or writ of error to that court. 232 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. By the Judiciary Act of March 3d, 1891, c. 517, 26 Stat. 826, an appeal or a writ of error, as the one or the other mode may be proper, can be taken directly from a Circuit Court to this court in certain specified cases, among which is “any case in which the jurisdiction of the court is in issue;” and “in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.” § 5. In all cases, other than those specified in section five of that act, the Circuit Court of Appeals is given appellate jurisdiction. § 6. The question presented by the certificate of the Circuit Court is not one of jurisdiction, within the meaning of the fifth section of the act of 1891, and the jurisdiction of that court was not “in issue.” There was diversity in the citizenship of the parties to this suit, instituted by Stuart R. Knott as a citizen of Missouri, and no question was raised, or could have been raised, as to the authority of the Circuit Court, as a Federal court, to take cognizance of it. The issue made by the intervening petition of the Louisville Trust Company did not involve the jurisdiction of that court, as a Federal tribunal, to appoint a receiver of the assets and property of the Evening Post Company. What the Circuit Court did in that respect was questioned by the Trust Company, on behalf of the state court, solely upon the ground that the taking by the Federal court of possession of the property and assets of the Post Company—after the state court by the institution of the Haldeman suit had acquired authority to appoint a receiver of such property and assets for administration—was in violation of the rule recognized in courts of equity, whether of Federal or state origin, that “where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court;” that, as the object of the suit m the state court could not be accomplished without possession of the property and assets of the Post Company, the seizure of such property and assets under the order of the Federal court, whereby the state court was prevented from giving any LOUISVILLE TRUST CO. v. KNOTT. 233 191 U. S. Opinion of the Court. effectual relief to the parties before it, was inconsistent with the relations which, upon principles of comity and right, always exist between courts having concurrent jurisdiction over the same subject matter. Peck n. Jenness, 7 How. 612, 624; Taylor v. Carryl, 20 How. 583, 596. In all this there was nothing involving the jurisdiction of the Circuit Court as a Federal tribunal, whose jurisdiction is regulated by acts of Congress. The question of jurisdiction which the statute permits to be certified to this court directly must be one involving the jurisdiction of the Circuit Court as a Federal court, and not simply its general authority as a judicial tribunal to proceed in harmony with established rules of practice governing courts of concurrent jurisdiction as between each other. We think this question was substantially so determined in Smith v. McKay, 161 U. S. 355, 357. That was a suit in equity for an injunction to restrain the defendants from using certain patented machines until they had fully paid the fees they had agreed to pay to the patentee. The defendants moved to dismiss the bill upon the ground that there was a plain, adequate, and complete remedy at law—thus raising only a question of equity jurisdiction. The motion to dismiss was denied. After final decree for the plaintiff, the case was brought directly to this court by appeal, and it was assigned for error that the Circuit Court erred in not dismissing the suit for want of jurisdiction. The position of the appellee in that case was that only questions of Federal jurisdiction could be brought directly here; and that if the Circuit Court had jurisdiction of the parties and of the matters in dispute, the fact that the remedy of the plaintiff was at law, rather than in equity, raised no question of jurisdiction within the meaning of the fifth section of the Judiciary Act of March 3d, 1901, under which the appeal was taken. The court observed that the question had never been directly decided by it, but that it arose in the World*s Cblumbian Exposition case, 18 U. S. App. 42, in which the Circuit Court 234 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. sitting in equity granted an injunction to prevent the opening of the Exposition Grounds to the public on Sunday. That case was taken by appeal to the Circuit Court of Appeals for the Seventh Circuit, and a motion was there made to dismiss the appeal. Chief Justice Fuller, speaking for that court, said: “The appellees have submitted a motion to dismiss the appeal upon the grounds that the jurisdiction of the Circuit Court was in issue; that the case involved the construction or application of the Constitution of the United States; that the constitutionality of laws of the United States was drawn in question therein; that therefore the appeal from a final decree would lie to the Supreme Court of the United States, and not to this court; and hence that this appeal, which is from an interlocutory order, cannot be maintained under the seventh section of the Judiciary Act of March 3d, 1891. We do not understand that the power of the Circuit Court to hear and determine the cause was denied, but that the appellants contended that the United States had not, by their bill, made a case properly cognizable in a court of equity. The objection was the want of equity, and not the want of power. The jurisdiction of the Circuit Court was, therefore, not in issue within the intent and meaning of the act.” Referring to these observations of the Chief Justice, this court in Smith v. McKay said: “We regard this as a sound exposition of the law, and applied to the case now in hand, it demands a dismissal of the appeal, on the ground that the objection was not to the want of power in the Circuit Court to entertain the suit, but to the want of equity in the complainant’s bill. The appellant’s contention in this respect would require us to entertain an appeal from the Circuit Court in every case in equity, in which the defendant should choose to file a demurrer to the bill on the ground that there was a remedy at law. 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 complain- LOUISVILLE TRUST CO. v. KNOTT. 235 191 U. S. Opinion, of the Court. ant’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.” 161 U. S. 355, 358. In principle, the judgment in Smith v. McKay embraces the present case. The issue presented by the intervening petition did not raise any question under the Constitution or statutes of the United States, and depended only upon principles of general law applicable to all courts having concurrent jurisdiction over the same subject matter. We repeat that the jurisdiction of the Circuit Court was not and is not questioned for want of power in that court, as a Federal tribunal, to take possession of the assets and property of the Post Company; only its authority, upon principles of equity and comity, to do that of which complaint was made by the Louisville Trust Company. We do not think that Congress intended that any such question should be the basis of a direct appeal to this court from a Circuit Court. The question again arose in Blythe v. Hinckley, 173 U. S. 501, 506, where this court said: “Appeals or writs of error may be taken directly from the Circuit Courts to this court in 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. Smith v. McKay, 161 U. S. 355; Blythe Co. v. Blythe, 172 U. S. 644. The Circuit Court dismissed the bills on another ground, namely, that the judgments of the state courts could not be reviewed by that court on the reasons put forward. This, also, was not in itself a decision of want of jurisdiction because the Circuit Court was a Federal court, but a decision that the Circuit Court was unable to grant relief because of the judgments rendered by those other courts. If we were to take jurisdiction 236 191 U. 8. OCTOBER TERM, 1900. Opinion of the Court. on this certificate, we could only determine whether the Circuit Court had jurisdiction as a court of the United States, and as the decree rested on no denial of its jurisdiction as such, but was rendered in the exercise of that jurisdiction, it is obvious that this appeal cannot be maintained in that aspect.” It is proper to observe that this court in Shields v. Coleman, 157 U. S. 168, 177, assumed jurisdiction upon direct appeal from a Circuit Court in a case involving the question whether that court had authority to appoint a receiver of property which was at the time in the possession of a receiver appointed by a state court. As the Federal court had, in that case, taken property out of the physical possession of a receiver of the state court, this court expressed its views upon the question whether the possession of the state court should have been disturbed by the Federal court, and it rendered judgment accordingly. But the precise question here presented as to the jurisdiction of this court under the act of 1891, on direct appeal from the Circuit Court, was not there raised or considered. In United States v. More, 3 Cr. 159,172 (1805), it was held that this court was without jurisdiction, under the law as it then was, to review the final judgment of the Circuit Court of the District of Columbia in a criminal case. It was suggested at the bar, in that case, that this court had, in a previous case, exercised appellate jurisdiction in a criminal case. Chief Justice Marshall met that suggestion by saying. “No question was made in that case as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case.” To the same effect, substantially, are United States n. Sanges, 144 U. S. 310, 319, and Cross v. Burke, 146 U.S. 82. . In the circumstances of the present case, and to avoid mis apprehension in the future, we deem it our duty distinctly to declare the true meaning of the word jurisdiction as use m the fifth section of the Judiciary Act of 1891. For the reasons stated, the appeal from the Circuit Cour must be dismissed for want of jurisdiction in this court. It is so ordered. GERTGENS v. O’CONNOR. 237 191U. S. Statement of the Case. GERTGENS v. O’CONNOR. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 65. Argued November 9, 10,1903.—Decided November 30,1903. The decision of the land department in a contest case is conclusive in the courts upon all questions of fact. A patent is a conveyance by the government of the title, and is conclusive in the hands of the patentee as against every individual unable to show a superior right, legal or equitable. The act of March 3, 1887, 24 Stat. 556, is remedial in its nature and, in addition to directing an adjustment with railroad companies of their land grants, provided for securing the equitable rights of parties contracting with the companies, and also those of settlers upon lands within the limits of the grants. The term “bona fide purchaser” found in the act is not used in its technical sense, but only as requiring good faith in the transactions between the railroad companies and parties contracting with them in respect to the lands, One who for a sufficient consideration has obtained an option from a railroad company, giving him the right to purchase within a specified time a large tract of land, and in reliance upon that option has expended money and labor in securing settlers, may be regarded as a “bona fide purchaser” within the scope of the act and entitled to the preferential right of purchase given by section 5. While a settler is favored in law, the equities of others must also be considered; and where he places his improvements upon land with full notice of the superior rights of others thereto, he is not entitled to be regarded as a bona fide settler either within the letter of the statute or within the reach of any reasonable equities. This was an action in ejectment commenced on February 15, 1900, by John P. O’Connor against Jacob Gertgens, in the District Court of the Sixteenth Judicial District of the State of Minnesota, to recover possession of the southwest J of section 9, township 125, range 45 west. The defendant appeared and answered. A trial was had before the court without a jury, resulting in a judgment for the plaintiff, which was, on April 4, 1902, affirmed by the Supreme Court of the State, 85 Minnesota, 481, and thereupon this writ of error was sued out. 238 OCTOBER TERM, 1903. 191U. S. Statement of the Case. The facts are these: The tract was surveyed public land, situate in the county of Traverse, and lying within the twenty-mile indemnity limits of the grant to the St. Paul, Minneapolis and Manitoba Railway Company, as defined by acts of Congress dated respectively March 3, 1857,11 Stat. 195, c. 99, and March 3, 1865, 13 Stat. 526, c. 105. It, with other lands, was withdrawn from settlement and entry under the land laws of the United States by executive withdrawal, dated May 25, 1869. In April, 1885, the tract, being within the indemnity limits, was, with other tracts, selected by the railway company as indemnity for deficiencies claimed to exist within the place limits. There selections were all finally cancelled on October 23, 1896. Prior to April 15, 1891, the land was unoccupied, but at that time the defendant, being fully qualified as a homestead claimant, took possession with a view of claiming it as a homestead under the laws of the United States, has ever since occupied it as his homestead and made improvements thereon of the value of $1,200. He made application at the local land office for a homestead entry but it was refused by the local land officials, and such refusal sustained on appeal by the Commissioner of the General Land Office. The refusal was on the ground that the land was within the twenty-mile indemnity limits of the railway company, and had been selected by the company in 1885, long before the defendant went upon the land. In July, 1880, the railway company entered into a written agreement with the Rev. John Ireland, a citizen of the United States, by which the company gave him the sole and exclusive right and authority to place settlers upon and sell to them all the lands in the counties of Big Stone and Traverse, to which the railway company might be entitled by virtue of the land grants of March 3, 1857, and March 3, 1865, and which were included within the indemnity limits of said grants. This contract expired December 31, 1881. On March 30, 1883, the railway company made a new agreement, which, after referring to the prior contract, contained this stipulation: GERTGENS v. O’CONNOR. 239 191 U. S. Statement of the Case. “Now, therefore, the contract herein referred to having expired on the 31st day of December, A. D. 1881, and the R. R. Co. not yet having acquired title to the lands in question, it is now agreed between the R. R. Co. and the Rev. John Ireland that when title to these lands are acquired by the R. R. Co., and notice of the same is given to Rev. John Ireland, he shall have the privilege and the right at any time within sixty days of date of said notice of purchasing for himself or such parties as he may designate, due regard being had, as stated in supplement to said contract for settlers who may have obtained any claim upon such lands previous to the date of said contract, any or all of the lands included in said contract, not to exceed the amount of 50,000 acres at uniform price of four dollars per acre, ten per centum of all receipts from said lands at the above price to be furthermore paid to the said Rev. John Ireland according as the monies are received by the company, when such lands shall be purchased by Rev. John Ireland or those whom he may designate, the conditions of sale usual with the company-shall be observed or at least the interest upon the purchase money shall be paid from the date of purchase to the fifteenth day of December following, when the usual condition shall be enforced.” This agreement was duly recorded in the office of the register of deeds of Traverse County, Minnesota. On February 8, 1896, Ireland made application to the Land Department for leave to purchase from the government the land in controversy under the provisions of the fifth section of the act of Congress of March 3, 1887, 24 Stat. 556, c. 376. This application was contested by the defendant, but the claim of Ireland was sustained by all the officials of the Land Department, from the local officers up to the Secretary of the Intenor. A patent was thereupon issued to Ireland, from whom the plaintiff obtained a conveyance. The act of March 3, 1887, was an act directing the Secretary of the Interior to just, in accordance with the decisions of the Supreme Court, 240 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. the several railroad land grants made by Congress. Section 5, under which Ireland made his claim, is copied in the margin.1 Mr. S. M. Stockolager and Mr. Thomas Kneeland for plaintiff in error. Mr. George C. Heard and Mr. F. W. Murphy were on the brief. Mr. Edward T. Young and Mr. H. F. Stevens for defendant in error. Mr. Justice Brewer, after making the foregoing statement, delivered the opinion of the court. The patent was issued to Ireland after a contest between him and the defendant, in which the several officials of the Land Department, from the local officers to the Secretary of the Interior, sustained his contention. The decisions of the Land Department in such contest cases are conclusive upon all questions of fact. Burfenning v. Chicago &c. Railway, 163 U. S. 321, 323, and cases cited; Johnson v. Drew, 171 U. S. 93, 99 ; Gardner v. Bonestell, 180 U. S. 362 ; De Cambra v. Rogers, 189 U. S. 119. The patent passed the legal title to Ireland. 1 Sec. 5. That where any said company shall have sold to citizens of the United States, or to persons who have declared their intention to become such citizens, as a part of its grant, lands not conveyed to or for the use of such company, said lands being the numbered sections prescribed in the grant, and being coterminous with the constructed parts of said road, and where the lands so sold are for any reason excepted from the operation of the grant to said company, it shall be lawful for the bona fide purchaser thereof from said company to make payment to the United States for sai lands at the ordinary government price for like lands, and thereupon patents shall issue therefor to the said bona fide purchaser, his heirs or assigns. Provided, That all lands shall be excepted from the provisions of this section which at the date of such sales were in the bona fide occupation of adverse claimants under the preemption or homestead laws of the United States, and whose claims and occupation have not since been voluntarily aban doned, as to which excepted lands the said preemption and homestea claimants shall be permitted to perfect their proofs and entries and receive patents therefor: Provided further, That this section shall not apply to an s settled upon subsequent to the first day of December, eighteen hundred an eighty-two, by persons claiming to enter the same under the settlemen laws of the United States, as to which lands the parties claiming the same as aforesaid shall be entitled to prove up and enter as in other like cases. GERTGENS v. O’CONNOR. 241 191 U. S. Opinion of the Court. It devolved upon the defendant, contesting that title, to show a superior right, legal or equitable, to the land. Both the trial and Supreme Courts of the State decided against the defendant’s claim. We have thus the unanimous conclusions of all the officers of the Land Department of the United States and of the judges of the courts of the State, to whom the question could be presented, in favor of plaintiff’s title. In respect to certain requirements of section 5, under which the Land Department acted there is no question. Ireland was a citizen of the United States. The tract was within the contract made by the company with him in 1883. It had never been conveyed to the company, or for its use. It was an odd-numbered section, within the limits of the grant, and coterminous with a constructed part of the road. It was excepted from the operation of the grant because of a defect in the selection of indemnity lands. All these matters being beyond dispute, there remain open the question whether the land could be deemed to have been sold by the company to Ireland, and whether he was a bona fide purchaser; and, further, conceding that Ireland comes within the provisions of the section, whether the equitable rights of the defendant as a homestead settler are superior. Was there a sale, and was Ireland a bona fide purchaser within the scope of said section? It is contended on the one hand that these are questions of fact concluded by the decisions of the Land Department, and on the other that it is the duty of the court to construe a written instrument, and as the agreement between the company and Ireland was in writing it is a question of law and not of fact whether there was a sale by the company and a purchase by Ireland. Doubtless, whether a transaction evidenced by a written agreement was a real transaction or a sham, whether it was executed with a fraudulent intent or in good faith, may present questions of fact, and in so far as those questions are involved in this case the conclusions of the Land Department are final. We must accept the agreement between the company and Ireland as vol. cxci—16 212 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. genuine, made in good faith, and supported, so far as it can be, by all outside facts, such as a sufficient consideration. It is, however, earnestly contended that there was no sale or purchase; that the company gave only a mere option, which, though binding on it, cast no obligations on Ireland. If he wanted to complete the contract and pay for the land, he might do so. If he did not, he was under no liability to the company. Strictly speaking, this contention is correct. Ireland had made no payment for this land, had made no absolute promise to pay, and it was optional with him whether he took the land or not. And if it be a condition of acquiring a right under this section, that the party claiming must either have paid or promised to pay, then Ireland was not entitled to any benefit therefrom. But we think the section does not compel such construction. We have more than once held that the entire statute was remedial in its nature and must be construed so as to carry out the intent of Congress and secure to the parties the intended relief. Primarily, the purpose was to secure an adjustment of the various land grants in aid of railroads. Much confusion had existed in the construction and administration of those grants. There had been conflicting decisions, and Congress attempted, without displacing vested rights, to do equity to all parties claiming interests in lands within these various grants. It did not purpose to merely define legal rights or prescribe new methods for their enforcement. The courts were competent under the law, as it stood, without additional legislation to preserve such rights. There were three parties whose interests and equities were to be regarded: First, the railway company, the beneficiary of the grant; second, parties who had dealt with the railway company in reference to lands claimed by it to be within the scope of its grant; and, third, parties who had attempted to secure title under the settlement laws of the United States. With reference to the railway company, it is sufficient to say that Congress aimed to limit its acquisition of title to the GERTGENS v. O’CONNOR. 243 191 U. S. Opinion of the Court. amount of land which it had in fact earned by the construction of the road, and prescribed that the adjustment with it should be made in accordance with the rulings of this court; authorized actions to recover any lands improperly conveyed to the company, or, if the company had parted with them, the value thereof in money. As to those who had dealt with the railway company, its evident purpose was to secure to them the lands they had contracted for, in so far as it could be done without trespassing on the rights of settlers. The scope of section 5 is disclosed by its opening words, “where any said company shall have sold.” In case of a sale, certain privileges are given upon certain conditions. Nowhere does it provide as one of those conditions that the company shall have received full, or indeed any, payment. If there is a sale it is sufficient. Why in a remedial statute may not the word include a sale upon conditions, one in which the proposed buyer has an election to accept the company’s promise? The section does not attempt to relieve any one whose transactions with the railway company were not in good faith. The term “bona fide purchaser ” is used in the statute; but, as we pointed out in United States v. Winona &c. Railroad, 165 U. S. 463, 480, 481, not in any technical sense, but simply as demanding good faith in the transactions between the individual and the company. It is true that the parties who, in that case, had dealt with the company had in fact purchased and paid value, and it was unnecessary to consider anything more than the effect of such transactions. But still it was distinctly held that the term “bona fide purchaser” was not intended in any technical sense, but only as one implying good faith. In reference to Ireland’s actions under his contracts with the company, the Supreme Court of the State said (p. 488): Under his first contract with the railroad company, Ireland expended large sums of money and devoted a great deal of time to a colonization enterprise, arid the expenditure and labor was kept up until 1883; large numbers of people being 244 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. thereby induced to settle in a new country tributary to the line of road belonging to the company. “By it the company constituted Ireland its mere agent to make sales of the lands therein scheduled, to receive payment thereon, and to bind it to convey when its title should be perfected, or to return the money paid in case it failed to obtain title. “The agreement of March 30 was wholly different. The agency was at an end. Ireland was given the right to purchase for himself and for others 50,000 acres at a stipulated price per acre, and upon certain terms. The company could not then convey, and when it could was uncertain, and it was agreed that purchasers should not be obliged to pay any part of the purchase price until it was within the power of the company to give good title. This was the construction placed upon the contract by the parties thereto, and it was the rational and proper one. Ireland proceeded under this contract, as he had under the first, to secure purchasers for these lands. They became actual residents, and received contracts for conveyances. He expended much time and large sums of money in the scheme to populate the country in question, and his success was very noticeable.” It is not pretended that what he did under these contracts, including therein his outlays of time and money, were under his last agreement to be accepted by the company as so much payment for the land, but these facts are stated to show the bona fides of the transaction; that it was not an attempt by means of a mere option to facilitate the acquisition of title from the government to the injury of bona fide settlers. On the contrary, Ireland was seeking to bring settlers on these lands, and thus aiding in carrying out the general purpose of the government to transform the vacant public lands into homes. Surely a purpose so in harmony with that of the government and an effort in the way that he pursued to carry that purpose into effect makes a case appealing to the favor able consideration of Congress, and is in its nature essentially GERTGENS v. O’CONNOR. 245 191 U. S. Opinion of the Court. different from a pure speculation in public lands at the expense of bona fide settlers. The rulings of the Land Department have been along the line of a recognition of the fact that attempts in good faith by a party to obtain from a railroad company for. bona fide settlements lands believed to belong to it or expected to be acquired by it, present cases which were intended to be included within the act of 1887, and entitled to its protection. In re Campbell, 12 L. D. 247; Telford n. Keystone Lumber Co., 18 L. D. 176; 19 L. D. 141; Holton v. Rutledge, 20 L. D. 227; Austin v. Luey, 21 L. D. 507. It must be borne in mind that the purpose of section 5 was not relief to the company, but to one dealing with it. Ireland by his contract had obtained rights from the company even if he had not assumed obligations to it. The land was the property of the government, and property to which the company acquired no title, but being within the limits of its grant it had claimed a right and contracted with Ireland as though it had or would receive the title. Section 5 gave to Ireland only a right to purchase this land from the government—a preferential right—paying to the government its price, no portion of which was to pass to the railway company, and gave him that preferential right because of his dealings with the company. He had sought to obtain title to this land from the company. He had made a contract by which, if the company acquired title, he could obtain that title; and Congress, by section 5, simply provided that, having so acted in respect to this land, he should have a preferential right of purchase. The company neither gains nor loses. The government receives its price for the land, and is, therefore, fully protected, and Ireland receives that, in respect to which he certainly has some equitable claim of consideration, a preferential right of purchase. The third party is the settler under the land laws, and we pass to consider his status and rights. A settler is, as has often been said, favored in law, but it does not follow therefrom that he is the only one whose equities are to be consid- 246 OCTOBER TERM, 1908. , Opinion of the Court. 191 U. S. ered. Congress, by section 5, made provision for his protection—such provision as it deemed sufficient. While it gave to purchasers from the railway company a preferential right of purchase it excepted therefrom lands which at the times of such purchase “were in the bona fide occupation of adverse claimants under the preemption or homestead laws of the United States, and whose claims and occupation have not since been voluntarily abandoned.” In other words, it said that no purchaser from the railway company should have a preferential right of purchasing any lands which at the time of his dealings with the railway company were in the hands of a bona fide settler under the laws of the United States, unless such settler should voluntarily abandon his settlement. As between a purchaser from the railway company and a settler on the lands, the settler was given the prior right. But the defendant was not a settler at the time of Ireland’s contract, nor, indeed, until many years thereafter. Neither did he come under the protection of the second proviso, for, although his settlement was after December 1, 1882, it was not until long after the passage of the act. It is well to look further into his equities. It will be borne in mind that he did not go upon the land until April, 1891. The tract was within the indemnity limits of the company s grant, and was, therefore, subject to selection. It had been withdrawn from entry under the land laws, and that fact appeared on the records of the local land office. It had, in fact, been selected by the company, and that selection had not been cancelled. Ireland’s contract of 1883 was of record in the office of the register of deeds of the county, and shown on the books of the company. The defendant applied for leave to enter the lands as a homestead, and was denied such leave by the local land officers on the ground that it was within the twenty-mile indemnity limits of the railway company s grant, and had been selected by the company. He was charged wit knowledge of the act of Congress giving a preferential right o purchase from the government in case the company s tit e MOSHEUVEL v. DISTRICT OF COLUMBIA. 247 191 U. S. Syllabus. should in any way fail. Notwithstanding all this, he remained upon the land and put his improvements on it, and now claims to be entitled to the rights of a bona -fide settler. He does not come within the letter of the statute, nor does he come within the reach of any reasonable equities. He evidently took his chances on the possibility of the company’s failing to obtain title and a subsequent failure of Ireland to insist upon his preferential right of purchase. He went upon the land with full knowledge of all the facts, which showed that he had no right to enter, speculating upon possibilities which have not been realized, and having so speculated he cannot complain if he suffer the consequences which often attend the failure of a speculation. We think the judgment of the Supreme Court of Minnesota was right, and it is Affirmed. MOSHEUVEL v. DISTRICT OF COLUMBIA. ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 6. Argued October 13,1903.—Decided November 30,1903. There is no rule of law in the District of Columbia that where a defect exists in a highway and is known to one who elects to use such highway such election, even if justified by the dictates of ordinary prudence must, as a matter of law, entail the consequences of a want of ordinary care and prudence. Where a hole exists in a sidewalk as the result of negligence on the part of the authorities, and renders ingress and egress from a house more or less dangerous, it is not such contributory negligence per se on the part of an occupant of such house having knowledge of the hole to try to step over it, as had been done on previous occasions, instead of going around it as will justify the direction of a verdict for the defendant. It is for the jury to determine from all the conditions whether the situation of the defect and the hazard to result from an attempt to step over it was so great that plaintiff, with the knowledge of the situation, could not as a reasonably prudent person have elected to step over, instead of going around it. 248 191U. 8. OCTOBER TERM, 1903. Argument for Plaintiffs in Error. The facts are stated in the opinion of the court. Mt. Henry E. Davis and Mr. Charles Cowles Tucker for plaintiffs in error: The Brewer case, 7 App. D. C. 113, which was the authority for dismissing this case is not analogous and if it were the decision in that case is erroneous. See Coffin v. Inhabitants of Palmer, 162 Massachusetts, 192; Maultby v. Leavenworth, 28 Kansas (2d ed.), 531; Huntington v. Breen, T7 Indiana, 29. The lower court adopted the theory that mere knowledge of a defect in the highway will preclude recovery from a municipality for an injury received. In this case the testimony shows that the injury was largely caused by a miscalculation or error of judgment. The authorities are clear that mere error of judgment does not amount to contributory negligence per se, McClain v. Railroad, 116 N. Y. 459, and mere miscalculation as to one’s proximity to the known dangerous part of a highway will not have the effect of establishing conclusively a want of ordinary care. Blood v. Tyngsborough, 103 Massachusetts, 509; Jones v. R. R. Co., 128 U. S. 443. That mere knowledge of a dangerous defect in a sidewalk is sufficient to preclude recovery regardless of circumstances is not the law. Kane v. Northern Central R. Co., 128 U. S. 91; East St. Louis v. Donahue, 77 *111. App. 574, distinguishing Kewanee v. Depew, 80 Illinois, 119, and see Graney v. St. Louis, 141 Missouri, 185; Seybold v. R. R. Co., 18 Ind. App. 390; R. R-Co. v. Crist, 116 Indiana, 446; Corts v. Dist. of Col., 5 Mackey, 286; Clayards v. Dethick, 12 Ad. & Ellis, 439; 64 Eng. Com. Law Rep. 439; Williamsport v. Lisk, 21 Ind. App. 414. One injured upon a street he knew to be dangerous need not show that he exercised extraordinary care while upon such street. Hanlon v. Keokuk, 7 Iowa, 488. A fortiori he is not obliged to keep off from such a street altogether. Rice v. Des Moines, 40 Iowa, 638; Reed v. Northfield, 13 Pick. 94. He may proceed, if consistent with reasonable care to do so; and his negligence is a question for the jury, depending on all the surrounding cir- mosheuvel c. district of Columbia. 249 191 U. S. Argument for Plaintiffs in Error. cumstances. Kelly v. Fon du Lac, 31 Wisconsin, 179. A person having knowledge of a defect or obstruction is bound to use care according to the circumstances to avoid injury. Smith v. Smith, 2 Pick. 621; Thompson v. Bridgewater, 7 Pick. 188; Rindge v. Coleraine, 11 Gray, 157; Crumpton v. Solon, 11 Maine, 335; Jacobs v. Bangor, 16 Maine, 187; Garmon v. Bangor, 38 Maine, 443; Noyes v. Morristown, 1 Vermont, 353; Folsom v. Underhill, 36 Vermont, 580; Koch v. Edgewater, 14 Hun, 544; Nicks v. Marshall, 24 Wisconsin, 139; Earleville v. Carter, 2 Bradw. 34; Craig v. Sedalia, 63 Missouri, 417; Moore v. Shreveport, 3 La. Ann. 645. Accordingly, if the obstruction or defect in the highway is of such a nature that it will be consistent with reasonable care to attempt to pass by it, one using the highway is entitled to make the attempt. Thomas v. Western Union Tel. Co., 100 Massachusetts, 156-158; Fox v. Glastenbury, 29 Connecticut, 204; Baltimore v. Holmes, 39 Maryland, 243; Gilbert v. City of Boston, 139 Massachusetts, 313; Kane v. Nor. Cent. R. R. Co., 128 U. S. 94; Commissioners v. Burgess, 61 Maryland, 31; Commissioners v. Broadwaters, 69 Maryland, 533; Nichols v. Laurens, 96 Iowa, 380; Fitzgerald v. Conn. River Paper Co., 155 Massachusetts, 155; Lyman v. Inhabitants of Amherst, 107 Massachusetts, 339; Elliott on Roads & Streets, 2d ed., sec. 636, and cases cited. For other cases in the different States, see Reed v. Northfield, 13 Pick. 94; Smith v. Lowell, 6 Allen, 39; Snow v. Railroad, 8 Allen, 441, 450; Frost v. Waltham, 12 Allen, 85; Fox v. Sackett, 10 Allen, 535; Mahoney v. Railroad, 104 Massachusetts, 73; Lyman v. Amherst, 107 Massachusetts, 339; Whitaker v. Boylston, 97 Massachusetts, 273; Humphreys v. Armstrong Co., 36 Penna. St. 204; Smith v. St. Joseph, 55 Missouri, 449; Rice v. Des Moines, 40 Iowa, 638; Griffin v. Auburn, 58 N. H. 121; Erd v. St. Paul, 22 Minnesota, 443; Aurora v. Dale, 90 Illinois, 46; Dooley v. Meriden, 44 Connecticut, 118; Turnpike Co. v. Jackson, 86 Indiana, 111, Coates v. Canaan, 51 Vermont, 131; Montgomery v. Night, 72 Alabama, 411; Bullock v. New York, 99 N. Y. 654; Pomfrey 250 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 U. S. v. Saratoga, 104 N. Y. 459; Noble v. Richmond, 31 Gratt. 271. Mere knowledge of a defect in a street will not preclude recovery from injury received. Whitford v. Southbridge, 119 Massachusetts, 564; Stevens v. Walpole, 76 Mo. App. 226; Griffin v. Lewiston, 55 Pac. Rep. 545; Schwingschlegl n. Monroe, 113 Michigan, 683; Frankfort v. Coleman, 19 Ind. App. 373; Boulton v. Columbia, 71 Mo. App. 523; Waltemeyer v. Kansas City, 71 Mo. App. 358, citing Gerdis v. Iron & Foundry Co., 124 Missouri, 347; Taylor v. Springfield, 6 Mo. App. 263; Bouga v. Weave, 109 Michigan, 520; Nichols v. Laurens, 96 Iowa, 388; Albion v. Hetrick, 90 Indiana, 545; Sandwich n. Dolan, 141 Illinois, 430, citing 136 Illinois, 45; 138 Illinois, 465; Gosport v. Evans, 112 Indiana, 133; Columbus v. Strassner, 124 Indiana, 482. “Whether the plaintiff was guilty of negligence in walking upon one part of the sidewalk rather than upon another was ‘ certainly not a question of law, and was properly left to the jury.’” Lincoln v. Power, 151 U. S. 441. Mr. Andrew B. Duvall, with whom Mr. Edward H. Thomas was on the brief, for defendant in error: The only question involved is the right of the court to take the case from the jury on the showing by the plaintiff that her own carelessness directly contributed to the injury sustained by her. One who, knowing the defective condition of a sidewalk, ventures upon it without taking the precaution necessary to prevent a fall, and is injured, cannot recover. Aurora v. Brown, 11 Ill. App. 422; Mayhew v. Burns (Ind.), 2 N. E. Rep. 793; Erie v. Magill, 101 Pa. St. 616; Schaeffer v. Sandusky, 33 Ohio St. 246; Wilson v. Charlestown, 8 Allen, 137; Parkhill v. Brighton, 61 Iowa, 103; Cook v. Johnson, 58 Michigan, 437; Black v. Manistee, 107 Michigan, 60; Grandorf v. District, etc., 113 Michigan, 496; Kelly v. Doody, 116 N. Y. 275; Irion v. City of Saginaw, 79 N. W. Rep. 572. One cannot assume a position of danger and then complain of injury from negligence which could cause no injury except to one in that dangerous MOSHEUVEL v. DISTRICT OF COLUMBIA. 251 191 U. S. Opinion of the Court. position. R. R. Co. v. Jones, 95 U. S. 439 ; R. R. Co. v. Houston, 95 U. S. 697 ; Dist. Col. v. Moulton, 182 U. S. 576, 582. Had the case been submitted to the jury and verdict rendered for plaintiff it would have been the duty of this court to set it aside. Schofield v. Chicago, M. & St. P., 114 U. S. 615, and cases therein cited. Plaintiff knew that the sidewalk was dangerous, and that it was really doubtful whether she could travel upon it without accident; it was therefore not consistent with ordinary care for her to attempt to pass over it, especially as she could take another safe and convenient way to her destination. The plaintiff having preferred to take her chances with the known danger, and having met with the very accident that she had reason to and did expect, she cannot lawfully recover. 7 Am. & Eng. Enc. Law, 2d ed., 454; Wilson v. City of Charlestown, 8 Allen, 137; Boyle v. Borough of Mahanoy City, 187 Pennsylvania, 1 ; City of Erie v. Magill, 101 Pennsylvania, 616; Hesser v. Grafton (W. Va.), 11 S. E. Rep. 211; City of Quincy v. Baker, 81 Illinois, 300; City of Centralia v. Krouse, 64 Illinois, 19; Durkin v. City of Troy, 61 Barb. 437; Schaeffer v. City of Sandusky, 33 Ohio St. 246; Burker v. Town of Covington, 69 Indiana, 33; Town of Boswell v. Wakley, 149 Indiana, 64; City of Bloomington v. Rogers (Ind. Sup.), 36 N. E. Rep. 439; Rogers v. City of Bloomington (Ind. App.), 52 N. E. Rep. 242; Corlett v. City of Leavenworth, 27 Kansas, 673; Wright v. City of St. Cloud (Minn.), 55 N. W. Rep. 819; Gilman v. Deerfield, 15 Gray, 577. Inadvertence does not excuse. Burker v. Covington, supra; Kelly v. Doody, 116 N. Y. 581; McClain v. Brooklyn R. R. Co., 116 N. Y. 465; Bloody. Tynsborough, 103 Massachusetts, 509. Mr. Justice White delivered the opinion of the court. The plaintiffs in error—husband and wife—sued to recover the amount of the damage alleged to have been sustained from a personal injury suffered by the wife as the result of a fall on a sidewalk in the District of Columbia. We shall hereafter refer to the wife as the plaintiff. The fall was alleged 252 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. to have been caused by a hole resulting from an uncovered water-box in the sidewalk, which appliance for a long time had been allowed to be in a dangerous condition through the neglect of the defendant. At the close of the evidence the court instructed a verdict for the defendant on the ground of the contributory neglect of the plaintiff; and, on appeal, the action of the court in so doing was affirmed. 17 App. D. C. 401. It is not contended at bar, if it be found that error was committed in taking the case from the jury because of the contributory neglect of the plaintiff, nevertheless, the judgment should be affirmed because there was no adequate proof to go to the jury on the question of the negligence of the defendant. The sole controversy, hence, is whether the case was rightly taken from the jury, because, as a matter of law, contributory neglect on the part of the plaintiff was demonstrated. Two elements of fact are involved in determining whether the alleged contributory neglect of the plaintiff was a question for the jury or for the court. The first is, what were the undisputed facts; and the second, whether such facts necessarily engender the ultimate inference of fact as to contributory neglect. The elementary law is, that issues of fact are to be decided by the jury. But where the probative facts are undisputed and where all reasonable minds can draw but one inference from them, the question to be determined is one of law for the court. Marande v. Texas & Pacific R. Co., 184 U. S. 173, 186, and cases reviewed and cited. In other words, the principle is that where there is no disputed issue of fact and in reason no controversy as to the inferences to be drawn from the undisputed facts, there can be no real question of fact to be passed on by the jury. Were the facts bearing on the question of contributory negligence undisputed, and if so, could reasonable minds deduce only one inference from them? The court below recited what it deemed to be the undisputed facts concerning the water-box and the events which took place at the time of the fall of the plaintiff on the sidewalk, as follows.„ 17 App. D. C. 405. MOSHEUVEL v. DISTRICT OF COLUMBIA. 253 191 U. S. Opinion of the Court. “The water-box was in the sidewalk at the bottom of three steps which led from a brick-paved landing at the front of the plaintiff’s house; and there was no place of egress from the house to the street other than by these steps. The box was so situated about midway of the steps that, in order to go from the lowest step to the sidewalk, it was necessary to go either to the right or to the left, which it would have been safe to do, or to take an unusually long step, at all events, unusually long for the female plaintiff, in order to step over the box and clear it. It was about four inches square, projecting irregularly above the level of the street, and was without covering of any kind; and its condition was known to the District authorities, for the inspector of plumbing, who had come to the house at the plaintiff’s request to inspect the plumbing, had made some remark to her about it. It was in the same dangerous condition at the time of the commencement of the plaintiff’s occupancy of the house about nine months before the accident, and so remained without change. And it may be added that it was visible from the door of the plaintiff’s house. “It appeared in evidence that a lady had stumbled over the obstruction in the early summer of 1899, and that the plaintiff herself had stumbled over it once before, although, as she testified, she always tried to be careful, and usually went to one side or the other, and not over the box, for which, as she knew, an unusually long stride was necessary. “On the day of the accident mentioned in the declaration the plaintiff was going out to visit a neighbor in an adjacent house. She testified that from the time she left her door, she had the box in view a part of the time, and had it in mind all the time and remembered its dangerous character; but that on this occasion she attempted to step over it, instead of going to one side, did not take a sufficiently long step, and put her foot into the hole and was thrown, with the result that she suffered serious injury. This is the substance of her testimony in the case, which is set out more in detail in the bill of exceptions. But into that detail it is unnecessary for us here to enter,” 254 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. We think the facts thus recited were undisputed, except as regards the statement that it would have taken “an unusually long step, at all events, unusually long for the female plaintiff, in order to step over the box and clear it.” True, a statement to that effect was made by the injured woman while under cross-examination, but she subsequently qualified this by saying that she “judged ” that she would have to take an unusually long step to pass over the box. The defendant, moreover, introduced testimony, as to which there was no dispute, concerning the situation of the water-box and its dimensions, by which it was shown that the north, that is, the outer, side of the water-box was four inches from a line drawn from the tread of the step nearest the sidewalk to the ground. The undisputed testimony, therefore, was not that it would require an unusually long step, or, at all events, one unusually long for plaintiff, to clear the water-box, but that she judged it would require such a step on her part, descending from an elevation, to clear the box, although to do so would have required the making of a step covering but a distance of four inches. Were the undisputed facts as thus corrected of such a nature as to compel every reasonable mind to draw the inference that the plaintiff had been guilty of contributory negligence? To determine the answer proper to be given to this question requires an ascertainment of the extent of the care which the law exacted under the conditions shown by the undisputed facts in the case. The extent of the legal duty which the court below deemed rested upon the plaintiff must be ascertained from the following and only passage referring to the subject contained in its opinion, p. 406: “The case is in some respects a very meritorious case. The injured plaintiff has stated the circumstances most fairly and honestly, and her testimony is worthy of all commendation. She was almost lured to her injury by the continued neglect of the District to remove the dangerous obstruction, whic MOSHEUVEL v. DISTRICT OF COLUMBIA. 255 191 U. S. Opinion of the Court. was only one specimen of many such obstructions occurring to the common knowledge of all citizens in the streets and highways of this city, and which could be removed by reasonably careful inspection and at a greatly less cost than the amount of any one verdict against the District that has been recovered in any such case. Nevertheless, despite the fact that the negligence of the District has been great and is almost confessed on the record, we can find no difference in principle between this case and that of Brewer v. District of Columbia, upon the authority of which the court below proceeded. See, also, the case of Kelly v. Doody, 116 N. Y. 575. “In pursuance of the decision in the Brewer case, and leaving the parties to their ultimate appeal to the Supreme Court of the United States, we must affirm, with costs, the judgment of the Supreme Court of the District of Columbia in the premises.” As the rule of law which the court deemed to be applicable was thus stated solely by reference to a prior case which the court had decided, that case must be examined to determine whether the extent of the duty which the court was of opinion rested upon the plaintiff in this case was correctly defined. District of Columbia v. Brewer—the case referred to—was decided in 1895. 7 App. D. C. 113. The case was this: The property owners on Brown street had constructed along a side of that street, where there was no paved sidewalk, a board walk. After the erection of this structure the District of Columbia graded the street, so that the bed of the street was lower than the board sidewalk by about ten inches. When this grading was done, at the request of the property owners the board walk was left undisturbed. One of the residents of t e street made a driveway from his premises to the street, cutting out for such purpose a space through the board walk en eet wide. On a winter night, snow being on the ground, rewer, the plaintiff in the case, was on his way to his home, which could have been reached by another street than the one on w ich the board walk was situated, Brewer knew the 256 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. situation of the board walk above the grade and the cut through it for the private roadway. As, however, the street upon which the board walk existed was lighted and the other street was not, and as there was less snow on the board walk than in the center of the street, Brewer chose to use the lighted street, and in doing so to walk along the board walk instead of going into the middle of the street. On arriving at the commencement of the board walk he stepped up thereon and on reaching the point where the board walk had been cut for the driveway, he fell and suffered the injury for which he sought compensation. There was a verdict in his favor. The appellate court, after saying that the proof clearly established negligence on the part of the District of Columbia, approached the question of the contributory negligence of the plaintiff. It pointed out that the plaintiff knew of the dangerous condition of the board walk when he chose to go along it, and the magnitude of the risk which was taken by him in using the board walk in the night time with the snow on it was referred to. The court, then, described what took place at the moment when Brewer suffered the fall at the place where the roadway had been cut, and observed (p. 116): “A similar accident might have befallen him had he slipped at any other point and fallen from the raised board walk.” This remark would tend to indicate that it was deemed that the board walk from its elevation above the grade with snow on it was equally dangerous at all points to the knowledge of Brewer as it was at the driveway. The statements previously referred to were, however, immediately followed by this: “But, be that as it may, he deliberately took the risk of walking along this dangerous sidewalk and received his injury in so doing. As this plainly appeared from the testimony of the plaintiff himself, who seems to have testified with perfect fairness, and there was no other evidence, the court should have instructed the jury to return a verdict for the defendant. From this analysis of the opinion in the Brewer case we find it difficult to say precisely upon what theory the ruling there MOSHEUVEL v. DISTRICT OF COLUMBIA. 257 191 U. S. Opinion of the Court. made was treated as decisive of this case. We say this for the reason that the conclusion of the court in that case would seem to have been placed upon the very dangerous condition of the street and the extreme hazard arising from its use under the circumstances, thus precluding every reasonable inference that Brewer could, consistently with ordinary prudence, have elected to use the street at the time and under the conditions shown by the undisputed proof. It is insisted, however, that the Brewer case was held by the court below to be applicable to this, because it was deemed that it had been decided in that case that where a defect existed in a highway, and was known to one who elected to use such highway, such election, even if it were justified by the dictates of ordinary prudence, nevertheless must be held, as a matter of law, to entail the consequences of a want of ordinary care and prudence. And this proposition substantially embodies the asserted principle of law which was relied upon at bar as sustaining the judgment below. We are of the opinion, however, that the rule as thus contended for is unfounded in reason and unsupported by the weight of authority. When analyzed the proposition comes to this, that no person can, as a matter of law, without assuming all the risk, use the streets of a municipality where he knows of a defect therein, even although it be that in the exercise of a sound judgment, it might be deemed that with ordinary care and prudence the street could be used with safety. The result of admitting the doctrine would be to hold that all persons in making use of the public streets assumed all risks possibly to arise from every known defect or danger. That this is the result of the proposition may be aptly illustrated. Take a street across which runs a railroad track, w ereon cars are moved by steam or other motive power. 11 persons knowing of this fact would know also that there was some danger in crossing. They, therefore, must either abstain altogether from crossing, or, if they do so, be subject as a matter of law to the consequence of the reckless opera-vol. cxci—17 258 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. tion of the railway, without reference to the care exercised in the use of the street for the purpose of crossing. Indeed, the proposition would imply that every one who used the public streets with the knowledge of a defect existing therein would be guilty, if an injury was by them suffered as a result of such defect, of contributory negligence without the existence of any neglect whatever; for this would necessarily result from saying that one who had made a careful use of the streets was yet guilty of neglect in doing so. Reduced to its last analysis, the principle contended for but asserts that the ordinary rules by which negligence is to be determined do not apply to the use of the public streets, since those who use such streets with a knowledge of a possible danger to arise from a defect therein must, as a matter of law, have negligence imputed to them, although in choosing to make use of the streets and in the mode of use the fullest possible degree of judgment and care was exercised. The result of this would be to relieve the municipality of all duty and consequent responsibility concerning defects in highways, provided only it chose to give notice of the existence of the defects. There may undoubtedly be found in some of the adjudged cases, concerning the right to recover for damage suffered from the neglect of a municipality to repair a highway, expressions which lend support to the proposition relied on, and it may be true to say, also, that there are some cases which seem to directly support the contention. But, as we have shown, such a doctrine is inconsistent with reason, and, as we shall now proceed to point out, is in conflict with what we $eem to be the weight of authority. In Dewire v. Bailey, 131 Massachusetts, 169, the action was brought to recover from the owner of a building for damages occasioned to one who had fallen on a plank sidewalk, covered with snow and ice, on his way out of the building. The proposition was that the injured person knew of the existence of the snow and ice on the walk, and, therefore, by electing to use it assumed the risk, and was, as a matter of law, conclusively presumed to be deemed guilty MOSHEUVEL v. DISTRICT OF COLUMBIA. 259 191 U. S. Opinion of the Court. of contributory negligence. In reviewing this contention, the court, through Field, J., said (p. 170): “The rulings of the justice presiding at the trial all rest upon the proposition that knowledge on the part of the plaintiff, at the time he entered upon the sidewalk, of the accumulation of snow and ice and of the unsafe condition of the sidewalk resulting therefrom, is in law conclusive evidence that he was not in the exercise of due care in attempting to pass over the sidewalk. “Looney v. McLean, 129 Massachusetts, 33, was an action by a tenant of a part of a building against the landlord to recover for injuries received in consequence of the giving way of one of the steps of a staircase used in common by the tenants, for the safe condition of which the landlord was responsible, and it was held 1 that the fact, if proved, that the plaintiff had previous knowledge that the stairs were in a dangerous condition, would not be conclusive evidence that the plaintiff was not in the exercise of due care;’ and Whittaker v. West Boylston, 97 Massachusetts, 273, and Reed v. Northfield, 13 Pick. 94, are cited. Other recent cases to the same effect are George v. Haver hill, 110 Massachusetts, 506; Whitford v. Southbridge, 119 Massachusetts, 564; Lyman v. Amherst, 107 Massachusetts, 339; Mahoney v. Metropolitan Railroad, 104 Massachusetts, 73; Thomas v. Western Union Telegraph, 100 Massachusetts, 156; Worden v. New Bedford, ante, 23.” The court further said: In Mahoney v. Metropolitan Railroad, ubi supra, it was held that the fact that the plaintiff saw the obstruction created by the defendant, and knew its dangerous character, is not conclusive proof that he was negligent in attempting to pass it. A person who, in the lawful use of a highway, meets with an obstacle, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party. In the case at bar, if the plaintiff had reasonable cause to believe that he could pass the 260 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. obstruction in safety, and used reasonable care in the attempt, he is entitled to recover.’ “It is evident that an obstruction may be of such a character that a court can say, as a matter of law, that no person in the exercise of reasonable prudence would attempt to pass over it; but the accumulation of snow and ice, such as is described in the exceptions in this case, does not in our opinion constitute such an obstruction. . . . “We think the law in a case of this kind is, that only when the nature of the obstruction is such that the court can say that it is not consistent with reasonable prudence and care that any person having knowledge of the obstruction should proceed to pass over it in the manner attempted, can the court rule that such knowledge prevents the plaintiff from maintaining his action; and that the nature of the obstruction in this case, as shown by the exceptions, was such that it ought to have been submitted to the jury to determine whether the plaintiff, even if he knew the condition of the sidewalk at the time he attempted to pass over it, was, under the circumstances, in the exercise of reasonable prudence and due care in attempting to pass over it in the manner he did.” And the principle announced in the cases just referred to was substantially reiterated in Pomeroy v. Westfield, 154 Massachusetts, 462; Fitzgerald v. Conn. River Paper Co., 155 Massachusetts, 155; Coffin v. Palmer, 162 Massachusetts, 192, and Shipley v. Procter, 177 Massachusetts, 498. Although in New York the burden in negligence cases is cast upon the plaintiff to show affirmatively his observance of due care, the rule for determining the existence of contributory negligence is like that which was declared in the Massachusetts cases just cited. In Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, the damage sued for was occasione by a fall sustained in attempting to pass over an embankment of snow and ice which had accumulated upon the sidewalk. The defendant requested the court in effect to charge the jury that if the plaintiff saw the obstruction and chose to attempt MOSHEUVEL v. DISTRICT OF COLUMBIA. 261 191 U. S. Opinion of the Court. to pass over it and not go around it, she could not recover. The action of the trial judge in refusing to give such instruction was approved by the Court of Appeals, that court saying (p.469): “The charge of the judge sufficiently laid down the rule of law as to plaintiff’s contributory negligence, and it would not have been proper for the judge to charge as matter of law that it was negligence for the plaintiff, under the circumstances disclosed in this case, to attempt to pass over the embankment. Evans v. City of Utica, supra; Brusso v. City of Buffalo, 90 N. Y. 679; McGuire v. Spence, 91 N. Y. 303; Bullock v. Mayor &c., 99 N. Y. 654.” The case just referred to was approved and followed in Shook v. City of Cohoes, 108 N. Y. 648. And, also, in Weston v. City of Troy, 139 N. Y. 281, it was declared by the court: “If she” (the plaintiff) “discovered the ridge, she was not required to leave the sidewalk, but she might, without being subjected to the charge of negligence, using due care, have kept on her way. But she could not heedlessly disregard the precaution which the obvious situation suggested, and proceed as though the sidewalk was free and unobstructed.” Quite recently, in a case decided October 6, 1903, and not yet officially reported, Walsh v. Central New York Telephone & Telegraph Co., 68 N. E. Rep. 146, the doctrine of the previous cases was recognized and applied. The cases which are stated in the margin1 enforce, in sub- Alabama City Counsel of Montgomery v. Wright, 72 Alabama, 411; Birmingham v. Starr, 112 Alabama, 98. Georgia—,Samples v. City of At-Georgia, 110. Illinois—City of Sandwich v. Dolan, 141 Illinois, • Indiana—-City of Columbus v. Strassner, 124 Indiana, 482; Bedford v. eal, 143 Indiana, 425; Pittsburgh &c. Ry. Co. v. Seivers, not yet officially reported, 67 N. E. Rep. 680. Iowa—Nichols v. Incorporated Town of aurens, 96 Iowa, 388; Graham v. Town of Oxford, 105 Iowa, 705. Kansas— au tby v. Leavenworth, 28 Kansas, 745; City of Emporia v. Schmidling, 33 Kansas, 485; Langan v. Atchison, 35 Kansas, 318; Kinsley v. Morse, 40 ansas, 577. Maryland—County Commissioners v. Broadwaters, 69 Maryan 533. Michigan Harris v. Township of Clinton, 64 Michigan, 447; M as v. City of Lansing, 75 Michigan, 499; Germaine v. Muskegon, 105 262 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. stance, the principle enunciated in the Massachusetts and New York cases just referred to. We take from a few of those cases some pertinent passages. In Gerdes v. Christopher &c. Foundry Co., 124 Missouri, 347, the rule was thus tersely stated: “It is the duty of a traveller on a public street to exercise reasonable care; but it is held that the use of a street known to be defective or obstructed cannot be charged as negligence inlaw.” In City of Sandwich v. Dolan, 141 Illinois, 430, the principle was thus stated: “These instructions were properly refused. They announce, in substance, the proposition that, where a party goes upon a sidewalk which he knows to be in a dangerous condition, he is thereby guilty of negligence per se. Such is not the law. City of Sandwich v. Dolan, 133 Illinois, 177; City of Flora v. Naney, 136 Illinois, 45; Bridge Co. v. Miller [Ill. Sup.], 138 Illinois, 465. The use of a sidewalk with knowledge of its dangerous condition may be evidence of negligence, but it is not negligence as a matter of law. Bridge Co. v. Miller, supra. In City of Bloomington v. Chamberlain, 104 Illinois, 268, an instruction was held to be erroneous which told the jury that ‘the law required the plaintiff to go out into the street, and pass around the walk, if she knew it was defective.’ Whether it is obligatory upon the plaintiff to pass over the walk known by her to be unsafe, or to pass around it upon the street, or to take the walk on the opposite side of the street, was a question which it was not the province of the court to determine as a matter of law. It is a question of fact for the jury whether, in passing over a walk known to be dangerous, instead of Michigan, 213. Minnesota—McKensie v. City of Northfield, 30 Minnesota, 456. Missouri—Maus v. City of Springfield, 101 Missouri, 613; Cohn v. City of Kansas, 108 Missouri, 387; Gerdes v. Christopher &c. Foundry Co., 124 Missouri, 347; Beauvais v. City of St. Louis, 169 Missouri, 500, and cases cited. Vermont—Coates v. Canaan, 51 Vermont, 131, 137. Washington —Jordan v. City of Seattle, not yet officially reported, 66 Pac. Rep. 114. MOSHEUVEL v. DISTRICT OF COLUMBIA. 191 U. S. Opinion of the Court. 263 inking some other route, the plaintiff is or is not in the exercise of ordinary care. City of Sandwich v. Dolan, supra. In Graham v. Town of Oxford, 105 Iowa, 705, 709, the court said: “It is not true that one who knows of a defect in a walk is necessarily guilty of negligence if he attempt to pass over it. Much depends upon the character of the defect, the occasion for passing over it, and the care used in doing so. If a person knows of a defect in a walk, but believes that it can be passed in safety by the exercise of ordinary care, and he is justified as a reasonably prudent man in holding that belief, he is not negligent in attempting to pass over it in an ordinarily careful and prudent manner.” And the rule was well settled in the District of Columbia prior to the decision in the Brewer case. Mr. Justice Cox, in delivering the opinion in Muller v. District of Columbia, 16 D. C. 286, 287, said: “The law on the subject throws on the defendant, in an action of this kind, the onus of proving contributory negligence, and that proof is not made out by merely showing the knowledge by the complainant of the defect complained of in the highway. ■ If the highway is wholly impassable and in such condition that no reasonable man would attempt to pass it, the plaintiff does it at his own risk. But if it is not, and especially if it is the only access to his dwelling, the only duty on his part is the exercise of proper care to avoid accidents, and the burden is upon the defendant, not only to show knowledge of the defect on the part of the plaintiff, but to show, affirmatively, negligence, or the omission to take the proper care.” The same view of the law was taken subsequently in Corts v. District of Columbia, 18 D. C. 277. The opinion of the court (p. 289) cites approvingly the following passage from the opinion in the case of Prince George’s County v. Burgess, 61 Maryland, 29: “The simple fact of its existence, with the knowledge of the 264 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. plaintiff, was not sufficient to bar recovery. It should appear that the hole rendered the bridge practically impassable to effect a bar because of knowledge. The hole might possibly have been avoided with ordinary care in driving, and the knowledge of its existence ought to have prevented carelessness on the part of the plaintiff, and naturally would have induced care on his part; but the onus of showing that such care and prudence were not exercised still rested on the defendants.” The principle laid down in all these authorities harmonizes with the English rule as announced in the case of Clayards v. Dethick, 12 Q. B. 439. That case is thus digested in Pollock on Torts (6th ed. p. 462): “The plaintiff was a cab owner. The defendants, for the purpose of making a drain, had opened a trench along the passage which afforded the only outlet from the stables occupied by the plaintiff to the street. The opening was not fenced, and the earth and gravel excavated from the trench were thrown up in a bank on that side of it where the free space was wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in leading out over the gravel, by the advice of one of the defendants then present. With the other he failed, the rubbish giving way and letting the horse down into the trench. Neither defendant was present at that time. The jury were directed ‘that it could not be the plaintiff’s duty to refrain altogether from coming out of the mews merely because the defendants had made the passage in some degree dangerous; that the defendants were not entitled to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger; though, if the plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained.’ This direction was approved. Whether the plaintiff had suffered by the defendants’ negligence, or by his own MOSHEUVEL v. DISTRICT OF COLUMBIA. 265 191 U. S. Opinion of the Court. rash action, was a matter of fact and of degree properly left to the jury; ‘the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt.’” Concluding, as we do, that the fact that the plaintiff, when she elected to descend the steps from her residence to reach the sidewalk, had knowledge of the existence of the uncovered water-box at the foot of the steps, was not alone sufficient to charge her with contributory negligence as a matter of law, it follows that the judgment below was erroneous if it rested upon such theory. But as the knowledge of the existence of the defective water-box would have been sufficient to impute contributory negligence per se, as a matter of law, if the hazard resulting therefrom to one seeking to pass over it from the steps was so great that no reasonably prudent person would have made the attempt, it remains only to consider the case in that aspect. Of course, from that point of view the question is, Did the facts proved as to the situation of the waterbox and the attempt of the plaintiff to step across it from the stoop so conclusively give rise to the inference of a want of ordinary care in making the attempt, that no reasonable mind could draw a contrary conclusion? This question is readily answered when it is seen that the undisputed fact was that the water-box at its outer edge was only ahopt four inches from a line drawn from the tread of the step nearest the sidewalk to the ground. Whilst it is true that the undisputed proof was that the plaintiff was aware of a danger from the box when she sought egress from her residence, and judged that a longer step than usual would be required to cross over it, it cannot be in reason said that all reasonable minds must draw the conclusion that contributory negligence, necessarily, as a matter of law, resulted from the act of attempting to step over the box to the sidewalk. This is especially so in view of the undisputed testimony given by the plaintiff that she was eeping the water-box in mind and was exercising all possi-le care, and had on previous occasions safely stepped over the 266 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. box. This condition of proof, we think, made a case proper to be passed upon by the jury. The conclusion just stated is not affected by the contention that when the plaintiff reached the tread of the last step she might by stepping to one side or the other have avoided the water-box, and, therefore, as she elected to cross over the box, she was guilty of contributory neglect. This but reiterates in another form, the proposition that by electing to use the steps to reach the sidewalk with knowledge of the existence of the water-box contributory negligence as a matter of law resulted. The act of attempting to step from the tread of the last step over the water-box is to be tested by the general principle governing the right to use a highway with knowledge of a defect therein. Coming to apply such principle, the question is this, Was the situation of the water-box and the hazard to result from an attempt to step over it so great that the plaintiff, with the knowledge of the situation, could not, as a reasonably prudent person, have elected to step across the box instead of stepping to the sidewalk from either side of the tread of the last step? And this, we think, was, under the undisputed proof, a question for the jury and not for the court. The judgment of the Court of Appeals of the District of Columbia is reversed, with instructions to that court to reverse the judgment of the Supreme Court of the District of Columbia, and to grant a new trial. Mr. Justice Brewer, Mr. Justice Brown and Mr. Justice Peckham, dissent. McLOUGHLIN v. RAPHAEL TUCK CO. 267 191 U. S. Opinion of the Court. McLOUGHLIN v. RAPHAEL TUCK CO. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 73. Argued November 11,12, 1903.—Decided November 30, 1903. The penal provisionsof §4693,R.S.,as amended bythe act ofMarch3,1891, had no extraterritorial operation and did not embrace the act of affixing in a foreign country to a publication, a false statement that it was copyrighted under the laws of the United States. Prior to the amendment of March 3, 1897, there was no provision in the copyright laws forbidding the importation into, or the sale after its importation within, the United States of an article falsely stamped with the copyright notice in a foreign country and the proviso in the amending act expressly saved the right to sell such an article if it had been imported prior thereto. The facts are stated in the opinion. Mr. A. Bell Malcomson for plaintiff in error. Mr. Harold Binney for defendant in error. Mr. Louis C. Raegener was on the brief. Mr. Justice White delivered the opinion of the court. Section 4963 of the Revised Statutes, as amended by the act of March 3, 1891, relating to the notice of copyright to be affixed to copyrighted articles, provided as follows: Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic, or musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States.” 268 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. On March 3, 1897, the foregoing provisions were amended, 29 Stat. 694, c. 392, by the following: “Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph or other article, whether such article be subject to copyright or otherwise, for which he has not obtained a copyright, or shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country; or shall import any book, photograph, chromo, or lithograph or other article bearing such notice of copyright or words of the same purport, which is not copyrighted in this country, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty and one-half to the use of the United States; and the importation into the United States of any book, chromo, lithograph, or photograph, or other article bearing such notice of copyright, when there is no existing copyright thereon in the United States, is prohibited; and the Circuit Courts of the United States sitting in equity are hereby authorized to enjoin the issuing, publishing, or selling of any article marked or imported in violation of the United States copyright laws, at the suit of any person complaining of such violation: Provided, That this act shall not apply to any importation of or sale of such goods or articles brought into the United States prior to the passage hereof.” The state of the law prior to 1897, pertinent to this case, was therefore this: A penalty was imposed of $100 for untruthfully impressing upon an article which was subject to be copyrighted in the United States the fact that the same had been copyrighted, but there was no provision or penalty concerning the importation from a foreign country of an article which was untruthfully stamped in such country as having been copyrighted in the United States, and no express provision or penalty concerning the sale of an article in the United States which was untruthfully stamped as copyrighted. The amendment McLOUGHLIN v. RAPHAEL TUCK CO. 269 191 U. S. Opinion of the Court. of 1897 caused the previous provision as to untruthfully stamping a notice of copyright to apply, although the article was not subject to copyright under the law of the United States, and prohibited the importation of an article untruthfully stamped from a foreign country, and also prohibited the sale of an article in the United States which was falsely stamped, the penalty previously provided being made applicable to the added prohibitions. The plaintiff in error in 1898 commenced this action in the Circuit Court of the United States against the defendant in error, to recover the $100 penalty, provided in the statute, for each of eighty-three alleged distinct violations of the statute. The basis of the first to the seventieth cause of action was asserted to be that on or about the first day of August, 1896, the defendant, “at the city of New York, in the State of New York, did publish and issue a certain picture book or booklet” (a distinct article being named in the statement of each of the seventy distinct causes of action) “and in and upon said book did knowingly insert and impress a false and fictitious notice that the same was copyrighted. . . . ” The seventy-first and seventy-second causes of action charged that the defendant on the eleventh day of June, 1897, in the city of New York, “did knowingly issue and sell a certain picture book,” described therein, with a false notice of copyright stamped on it. The seventy-third to the eighty-third and last cause of action charged the commission as to different publications, of like acts, in the city of New York on or about April 26, 1897. On the trial to a jury the defendant admitted that all the publications referred to had on them an untruthful statement that they had been copyrighted under the laws of the United States, which statement had been affixed in a foreign country at their request and for their account. It was also proved y the defendant, without conflict in the testimony, that all the publications having on them the untruthful statement of copyright were imported into the United States prior to the enactment of the amendment of 1897. Under this state of 270 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. the proof the trial court instructed a verdict for the defendant. Error was prosecuted by the plaintiff to the Circuit Court of Appeals and that court affirmed the judgment. 115 Fed. Rep. 85. The court held that the penal provisions of the law had no extraterritorial operation, and therefore did not embrace the act of affixing in a foreign country to a publication a false statement that it was copyrighted under the laws of the United States. Concerning the sales made after the passage of the amendment of 1897, the court held that the trial court had correctly instructed the jury that as the books so sold after the amendment of 1897 were imported into the United States prior thereto, the right to sell them in the United States was saved by the proviso of that amendment. The court below was clearly right in its conclusions as to the non-extraterritorial operation of the law as it stood prior to the amendment of 1897. Flash v. Conn, 109 U. S. 371, 376. In saying this we do not wish to be considered as holding that where an act done in a foreign country against a penal provision of the law of the United States is but the initial step in accomplishing a subsequent violation in the United States of other penal provisions, that the act done in the foreign country might not, under some circumstances, be treated as having been performed in the United States. On this question we intimate no opinion whatever, as the circumstances of the case do not require us to do so. Under the law as it stood prior to 1897 there was no provision forbidding the importation of an article falsely stamped in a foreign country, or prohibiting the sale in the United States of an article falsely stamped. There could, therefore, be no possible relation between subsequent lawful acts performed in the United States concerning the article falsely stamped in a foreign country. The court was also manifestly right concerning the articles falsely stamped which were imported into the United States prior to the amendment of 1897, but sold in the United States subsequent to that amendment. The proviso expressly excluded from the operation of that amendment “any importa- McLoughlin v. Raphael tuck co. 271 191 U. S. Opinion of the Court. tion of or sale of such goods or articles brought into the United States prior to the passage thereof.” Whilst this was not disputed in the argument at bar, it was insisted that the court below erred in affirming the act of the trial court in instructing a verdict on this subject, because the evidence did not unquestionably establish that the articles which were sold after March 3, 1897, were in fact imported prior to that date. To support this contention the evidence which is contained in the bill of exceptions is referred to. We are of opinion that the claim is without merit, and that from the testimony, as preserved in the bill of exceptions, it results that the trial court correctly instructed the jury on the subject. It is urged, however, that error was committed by the trial court in the admission of proof concerning the date of the importation of the articles sold after March 3, 1897. Whilst we think the contention is without merit, we shall not review the grounds upon which it is based, because it is not open to inquiry upon the record before us. No error concerning the admission or rejection of testimony was assigned in the Circuit Court of Appeals, and that court, in considering the case, treated it as involving only two issues, the extraterritorial operation of the provisions of the law, as it stood prior to March 3, 1897, and the effect of the proviso which formed a part of that amendment. And this upon the assumption that the correctness of the ruling of the lower court concerning the admission of testimony was unchallenged by the plaintiff in error. We say upon the assumption, since the opinion of the Court of Appeals makes no reference to any question concerning the admissibility of testimony, and because the assignment of errors made. for that court was directed to the adequacy of the admissions and testimony ” to sustain the action of the trial court in instructing a verdict. Affirmed. Mr. Justice Holmes did not hear the argument and took no part in the decision of this case. 272 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. PEOPLE’S NATIONAL BANK v. MARYE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA. No. 24. Argued October 14, 15, 1903.—Decided November 30,1903. This court will follow the ruling of the highest court of a State when it has held that a state statute does not violate the constitution of that State. While a State may only tax shares of a national bank in accordance with the Federal statute, a state law, which does not give the shareholders the benefit of all deductions to which they are entitled, is not necessarily void altogether but may be sustained as to the amount properly taxable. The mere lack of a provision in a tax law for notice does not take away the jurisdiction of the taxing officer to make an assessment under any circumstances. It the tax could be imposed for a certain amount it is not void but at most voidable for the illegal amount, if any. Where the amount of the tax which shareholders should pay if all the deductions they claimed were allowed, is ascertainable, neither they, nor the bank itself on their behalf, can maintain an action in equity to restrain the collection of the entire tax. They should, under the rule that he who seeks the interposition of a court in equity, must himself do equity, first offer to pay that part of the tax which under their contention is not illegal. This is an appeal, by the bank as complainant below, from a decree of the United States Circuit Court for the Eastern District of Virginia, dismissing its bill with costs. 107 Fed. Rep. 570. The complainant and three other national banks in Lynchburg, Virginia, each commenced a suit in the above-named court, against the auditor of public accounts of the State, to restrain the collection of certain taxes assessed upon the share owners of stock in the several banks, on the ground that such taxes were illegally laid. This particular complainant has brought the case here by appeal as a test case, the same questions arising in all the others. It is insisted upon the part of complainant that the laws under which these taxes were levied are unconstitutional and PEOPLE’S NATIONAL BANK v. MARYE. 273 191 U. S. Statement of the Case. void, and the prayer of the bill is that the stockholders may be relieved and discharged from all liability on account of such unpaid taxes. The original bill, which was filed July 22, 1896, seeks to enjoin the collection of taxes upon the stock of the shareholders in the complainant bank for the years 1891 to 1895, both inclusive, and a preliminary injunction order to that effect was granted. After the filing of the original bill and on February 10, 1900, a supplemental bill was filed by leave of the court, and it was therein sought to enjoin the collection of all taxes for the years 1891 to 1897, both inclusive. Both bills were demurred to and the Circuit Court sustained the demurrers and dismissed the bills. It was averred in the bills that the acts of the legislature of Virginia providing for the taxation of bank shares, both in national and state banks, were in violation of the Federal Constitution, as well as that of Virginia, and were also in violation of the act of Congress, Rev. Stat. sec. 5219, providing for the taxation of shares of national bank stock under state authority. The taxes referred to in the original bill were levied under the act of Virginia passed March 6, 1890. Acts of Virginia Assembly, 1890, p. 205, c. 244, sec. 17. That act prohibited any assessment upon the capital stock of banks, either state or national, and provided for assessing the stockholders on their shares in those banks upon the market value thereof, at the same rate as is assessed upon other moneyed capital in the hands of individuals residing in the State. It will be observed that this rate of assessment is the condition upon which Congress, in the section of the Revised Statutes above mentioned, permits the taxation of national banks by or under state authority. Under this Virginia act it was further made the duty of the banks to pay the amount of the tax, and if a bank failed to pay the same, its cashier and his sureties were made liable for the tax and twenty per centum in addition to be recovered by the auditor of public accounts upon notice. vol. cxci—18 274 OCTOBER TERM, 1903. 191U. S. Statement of the Case. An assessment upon the real estate of the bank was also to be made against the bank itself for the same taxes as other real estate was assessed for. The ground of the alleged illegality of the taxes is stated to be the want of any provision for notice of time and place of valuation of the shares in arriving at market value, and the failure to provide for deducting the value of real estate from such market value, and also the failure to permit deductions for the debts of the shareholders. The taxes spoken of in the original bill (1891-1895) were not paid, and no proceedings seem to have ever been taken to enforce their collection under that act against the cashier or his sureties. It might be surmised that they were not taken because of a doubt as to the constitutionality of that part of the act which provided for the liability of the cashier and his sureties, if the bank failed to pay the tax assessed upon its shareholders. However that may be, the authorities did not, in fact, take any proceedings to enforce the payment of the taxes until the passage of the act of March 3, 1896. Acts of Assembly of Virginia, 1896, c. 642, p. 700. That act provided a procedure for the collection of the taxes theretofore assessed against the stockholders of banks and then remaining unpaid. By its provisions the taxes were made a first lien upon the stock, no matter in whose hands found, and it was made the duty of the auditor of public accounts immediately to furnish the cashiers of banks with a list of their stockholders theretofore assessed with taxes upon their bank stock and who had not paid the same, and each bank so desiring and electing was authorized to pay to the auditor the taxes assessed upon the stock held by its stockholders, provided payment was made before the first day of July, 1896. If the bank did not choose to make such payment, it was made the duty of the auditor to give a copy of the lists to the attorney general, and it was made his duty to proceed by motion to collect the taxes from the individual stockholders. The motion was to be cognizable in the Circuit Court of Richmond city, after ten days’ notice to the stockholder, and might be served upon non-resident PEOPLE’S NATIONAL BANK v. MARYE. 275 191U. S. Statement of the Case. defendants in the mode provided by section 3208 of the Virginia code. By the supplemental bill the taxes for the years 1896-1897 were brought under review and a perpetual injunction was asked to restrain the collection of all taxes from 1891 to and including 1897. The assessments for the years 1896-1897 were assessed under another act of the legislature of Virginia, which was also passed March 3, 1896. Acts General Assembly of Virginia, 1895-1896, p. 726. The seventeenth section of that act provided for assessments upon the shares of state and national banks at the market value of the shares of stock held in the banks at the same rate that is assessed upon other moneyed capital in the hands of individuals residing in the State. The act provided, also, that the banks should make a report on the first day of February in each year, in which should be given the names of the shareholders, the number of shares owned or held or controlled by each, the market value of the stock, and the shareholders’ residences, and it was then made the duty of the commissioner of revenue, on or after the first day of February in each year, to assess each stockholder upon the shares of stock held or owned by him at the market value, on the first day of February in each year, as therein stated. The section then provided for the retention of all the dividends by the bank, and for the application of the same to the payment of the tax assessed upon such stockholders, and that each bank might, if it so elected, pay the tax so assessed against the stockholders. directly to the auditor of public accounts before the first day of June in each year. Provision was then made that if the bank failed to make such payment, the auditor of public accounts was to transmit a copy of the assessment list furnished him by the commissioner of revenue, and it was made the duty of the treasurer to collect the tax therein levied, and to that end to levy upon the stock of the taxpayer. Other provisions were made in regard to the transferring of the stock to the purchaser at the sale upon the levy made 276 OCTOBER TERM, 1903. Opinion of the Court. . 191 U. S. by the treasurer, and penalties were denounced upon the bank for a refusal to comply with its provisions. Soon after the passage of the acts of March 3, 1896, the public authorities were about to take proceedings for the purpose of enforcing the collection and payment of the taxes for the years mentioned, and thereupon this suit was brought and a preliminary injunction obtained restraining the collection of all taxes for those years upon the bank shares until the further order of the court. The shareholders in these four banks in the city of Lynchburg have paid no taxes on their shares of stock in those banks since 1890. Mr. John H. Lewis and Mr. John D. Horsley for appellant. Mr. William A. Anderson, Attorney General of the State of Virginia. Mr. Justice . Peckham, after making the foregoing statement of facts, delivered the opinion of the court. The complainant objects to the legality of the taxes upon the ground, among others, that the acts of the Virginia legislature, under which they were levied, violated the provisions of the constitution of that State, and were, therefore/entirely invalid. These objections are, as we think, untenable. They are technical, and relate to alleged defects in the titles of the acts, in not being sufficiently specific in stating the tax and the object to which it was to be applied, and also that the taxes were not equal and uniform. We think the objections are without merit, and we concur with what is stated upon this subject in the opinion of the Circuit Court herein. The state court has held the statutes do not violate any provision of the state constitution, and we follow that court upon such a question. Merchants’ Bank v. Pennsylvania, 167 U. S. 461Schaefer v. Werling, 188 U. S. 516. PEOPLE’S NATIONAL BANK v. MARYE. 277 191U. S. Opinion of the Court. The chief objections which are made to the taxes are three: 1. No notice is provided for in any of the acts as to when or where the valuation of the shares of the bank for purposes of taxation will be made, and hence the shareholder has no opportunity to be heard upon that question, and the whole tax is void for that reason. 2. That the acts provide for a valuation of the bank’s shares at the market value without providing for a proportionate reduction on account of the value of the real estate owned by the bank, which is also by the law of Virginia to be assessed for its value against the bank itself; that by reason of this omission, the shareholder is taxed once on the full market value of the stock, a part of which consists of the value of the real estate, and he is taxed again, indirectly, for his proportion of the amount of the tax paid by the bank on this same real estate, and the result is that he is taxed upon his bank shares, as he insists, at a greater rate than upon other moneyed capital, etc. 3. That no provision is made under these acts for permitting shareholders to deduct their indebtedness from the assessments upon their shares of stock, while it is alleged the holders of large amounts of other moneyed capital are by the laws of Virginia permitted to deduct their indebtedness from that capital and are called upon to pay taxes only upon the balance. On these grounds the complainant insists that the taxes were illegal and void, and upon such grounds it has based its prayer that the stockholders should be wholly freed from any liability to pay such taxes or any part thereof. The defendant under his demurrer argues that, properly construed, although notice is not in terms provided for, yet the acts do provide an opportunity for a hearing before the tax can be enforced, and also that there is no illegal discrimination in the scheme enacted by the legislature of Virginia against the holders of national bank shares and in favor of other moneyed capital in the hands of individual citizens of the State. He denies that, so far as relates to the alleged failure 278 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. to deduct the value of the real estate of the bank from the market price of the stock or the indebtedness of the shareholder from the amount upon which such shareholder is assessed, (when the provisions of the general law of Virginia upon the subject of taxation or other property are compared,) there was any violation of law or any illegality in the several taxes assessed on such shares. He also insists that the complainant could not legally represent the shareholders herein or maintain this action. He further urges that, as neither the original nor the supplemental bill showed any payment or tender of an amount which would be justly due, even under the objections of complainant, the suit could not be maintained. The Circuit Court held that, as to the taxes for 1891-1895, under the two acts already mentioned, (acts of 1890 and 1896,) the suit could not be maintained for the reason that the bank was under no obligation to pay the taxes for its shareholders, and there was no penalty or other inconvenience to the bank attending its refusal to pay, but that the case was different under the second act of 1896, as to the assessments made after 1895, and that as to those the bank was placed in such a position under that act as permitted it to maintain the suit. The court then examined the act with reference to the averments of the bill and supplemental bill, and with regard to the general laws of Virginia relating to the taxation of other property, and concluded that the act of 1896 was valid as construed by it, and that the assessments of 1896 and 1897, under it, were legal, and therefore dismissed the bill. In the view we take of this case, it is unnecessary to decide any other question than that which arises from the omission in either bill to aver payment, or at least a tender of the amount of taxes equitably and justly due as a condition of obtaining the interference of a court of equity by enjoining the collection of the balance. The prayer of the bill is “that the said defendant and all others may be perpetually enjoined from collecting taxes assessed on the stockholders by the State of Virginia for the PEOPLE’S NATIONAL BANK MARYE. 279 191 U. S. Opinion of the Court. years 1891, 1892, 1893, 1894, 1895, 1896 and 1897; that the said acts of the legislature of Virginia assessing the stockholders of your complainant with taxes may be declared unconstitutional and void, and that its stockholders, as well as your complainant, may be discharged and relieved from all liability growing out of the assessments.” From this it appears there has, in fact, never been any payment or tender of any part of the taxes assessed against the shareholders during the years above mentioned, and the omission of an averment of payment or tender of payment was therefore not a mere oversight. In our view of the facts set forth in this case in the original and supplemental bills, the complainant was not entitled to any injunction unless it paid the amount equitably due, and if it made such payment then the injunction would issue, rej straining the collection of the balance. This is of course upon the assumption that the objections taken to the acts as above set forth are well founded. Whether they are or not, it is not necessary for this purpose to decide. Taxation of shares of stocks in national banks is the universal rule, and probably there is no State in the Union in which such taxation is not provided for as a part of the property subject to taxation for the general support of the state government. The State of Virginia has by this legislation sought to provide for and enforce taxation of this kind of property. It is clearly shown that it intended to provide for a legal assessment; one that complied with the conditions of the Federal statute, for the language of the various acts above mentioned in providing for such taxation is substantially the same as that used in the Federal statute, as they provide that the assessments shall not be on the capital of any bank, but shall be upon the shares at the same rate as is assessed upon other moneyed capital in the hands of individuals residing in the State. This is the purpose of the laws and if in attempting to effect that purpose some slip is made or some details are provided for therein which may render assessments under them irregular or even illegal, 280 OCTOBER TERM, 1903. 191 U. S. Opinion of the Coui’t. that fact does not detract from the equitable duty of the shareholders in national banks to fulfill the plain demands of the laws, and pay a tax on their shares in like proportion as is assessed upon other moneyed capital, before they can establish any claim for interference in their behalf by a court of equity. To the extent (if any) that the assessment exceeds that amount, it may be assumed proper to ask a court of equity to enjoin its collection, but surely it offers no equitable foundation for an injunction restraining the collection of the whole tax, nine-tenths of which may be justly due on every equitable principle. The original and supplemental bills, taken together, show at least the amount that would be justly and equitably due on the theory of the complainant, for they show that if the two deductions (being all that are insisted upon by the complainant) had been made by the taxing officer, the complainant would not have had any ground of complaint as to the amount of the taxes. There are data in the original and supplemental bills from which it can be at once and definitely determined what the amount of the deductions claimed by complainant would be. The market value of the stock is stated for each year, as assessed by the taxing officer, and also the value of the real estate is stated for each year, and this last amount, complainant insists, should be deducted in arriving at the market value of the stock. The bills also show the different shareholders who had debts at the time the various assessments were made, and the amounts of the deductions they would, therefore, be entitled to for each of the years in controversy. These two classes of deductions being made, the complainant offers no equitable objection to taxes which might be assessed upon the balance. With these data thus appearing, from which the equitable amount of the taxes due by the shareholders is readily determined, we think this conceded amount should be paid before a court of equity ought to grant its aid by way of injunction. The universal rule of a court of equity is that he who seeks its equitable interposition must himself do equity. Is there any higher equity than that a citizen PEOPLE’S NATIONAL BANK v. MARYE. 281 191 U. S. Opinion of the Coui’t. should pay the amount of a tax which he concedes to be just and equitable before asking the aid of a court of equity to grant an injunction to enjoin the collection of any greater sum? The complainant, however, insists that the rule does not exist where the assessments are void and not merely irregular, and it asserts that these assessments are void because the acts under which they were laid do not provide for notice to the shareholder before determining the value of the share upon which the tax is to be laid, and also because the assessment violated the act of Congress in being at a greater rate than is assessed upon other moneyed capital. We are of opinion, however, that these assessments were not void within the meaning of the rule which absolves the taxpayer from the necessity of paying or tendering the amount equitably due from him. If there were no right to assess the particular thing at all, either because it is exempt from taxation, or because there is no law providing for the same, an assessment under such circumstances would be void, and, of course, no payment or tender of any amount would be necessary before seeking an injunction, because there could be no amount equitably due where there never had been a right to assess at all. Where, however, there is a statute which provides for an assessment and gives jurisdiction to the taxing officer, under some circumstances, to make one, but the particular assessment is invalid for want of a notice to the taxpayer, or some other kindred objection, the equitable duty still rests upon him to pay what would be his fair proportion of the tax as compared with that laid upon other property before he can ask the aid of the chancellor to enjoin the collection of the balance. This is the equitable rule, and it is good morals as well. To say that the act under which the tax is levied is unconstitutional, and therefore is the same as no law, and hence there is no duty to pay anything, because no tax can be levied without some law therefor, is to state the proposition too broadly. We concede that if the law were unconstitutional because, for instance, there was no constitu- 282 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. tional power to tax the particular property, there is no necessity to pay anything. But where some part of the law may be unconstitutional because of a failure to comply with some matter of detail, but the amount which the owner of the property ought to pay is perfectly clear under the provisions of law, then if the taxpayer desire to be exempted from paying more than his share, he must pay or offer to pay his proportion before equity will aid him in his effort to escape paying a disproportionate share. The statute herein provides for a tax and creates the equitable obligation to pay some amount by reason of the shares, and even though there may be some obstacle which prevents its entire legality, yet the person assessed should recognize his equitable obligation to pay the tax to the extent stated before he can base any claim for the assistance of equity to get rid of the balance of the tax. The mere lack of a provision in the statute for notice did not take away the jurisdiction of the taxing officer to make an assessment under any circumstances. What is the purpose of notice? Clearly that the person assessed may have an opportunity to show some reason, if any, why he should not be assessed at all, or else not so much as he has been in fact. But suppose that, although there was no notice provided for in the act, the taxpayer had nevertheless heard of the assessment, and in fact had appeared before the assessing officer and made his case, showing he should not be assessed more than a certain stated amount, and the officer had allowed his claim to its full extent. Should he be thereafter permitted to resist by means of an injunction the collection of the tax so imposed upon the ground that the statute provided for no notice to him, and none was officially given? Certainly not. So when he comes into a court of equity to ask its aid, should it appear on his own statement or otherwise, that if all the claims he makes were allowed he would still equitably owe the government a certain sum by reason of the statute providing for the assessment, and his ownership of the property assessed, will he be heard to insist that the court PEOPLE’S NATIONAL BANK v. MARYE. 283 191 U. S. Opinion of the Court. grant him an injunction preventing the collection of any tax because he had no notice of the assessment? He owes something to the government, as a tax upon his shares, and ought any court of equity to aid him in escaping all obligation because, while insisting that the whole assessment is illegal, it yet clearly appears that a portion thereof, even if uncollectible, is nevertheless equitably, and justly, due? Is the equitable obligation arising by reason of these statutes and under these circumstances, to pay some tax, completely obliterated because the particular tax cannot legally be collected, and may be called void? We think clearly not. This same reason applies not only to a lack of notice but also to the case of a claim that the tax is illegal because it did not allow the deductions which by the Federal statute should have been allowed. The tax under such circumstances is not void, but at most voidable for the illegal amount. Supervisors v. Stanley, 105 U. S. 305, 315. We refer to a few of the many authorities upon the subject. In State Railroad Tax Cases, 92 U. S. 575, 616, it was said by Mr. Justice Miller, in delivering the opinion of the court, as follows: “Before complainants seek the aid of the court to be relieved of the excessive tax, they should pay what is due. Before they ask equitable relief, they should do that justice which is necessary to enable the court to hear them. . . . It is not sufficient to say in the bill that they are ready and willing to pay whatever may be found due. They must first pay what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not, before the preliminary injunction should be granted. The State is not to be thus tied up as to that of which there is no contest, by lumping it with that which is really contested. If the proper officer refuses to receive a part of the tax, it must be tendered, and tendered without the condition annexed of a receipt in full for all the taxes assessed.” This language is used in relation to taxes which were claimed 284 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. to be too high with reference to other property in the State, but the principle of the rule exists even where the tax is averred to be too great, because certain deductions provided by law were not made, or because there was no notice given of the assessment, and hence the taxpayer never had an opportunity to be heard. If, after hearing, there would appear something to be equitably due from the taxpayer, he should pay it before seeking relief from the court. In Cummings v. National Bank, 101 U. S. 153, where the question was whether the rule adopted by the local boards of assessment was in conflict with the state constitution, the court held that it was, and that an assessment made under those circumstances was illegal, but that nevertheless the taxpayer was bound to pay the amount equitably due, and the opinion closes with the statement that “the complainant having paid to defendant, or into the Circuit Court for his use, the tax which was its true share of the public burden, the decree of the Circuit Court enjoining the collection of the remainder is affirmed.” In National Bank v. Kimball, 103 U. S. 732, the general rule was held to be that the owner of taxable property seeking to enjoin the collection of a tax thereon, which he alleges to be in excess of what is lawful, must first pay or tender so much thereof as is justly due. Mr. Justice Miller, speaking for the court, said: “The bill attempts to evade this rule by alleging that the tax is wholly void, and, therefore, none of it ought to be paid, and that by reason of the absence of all uniformity of values, it is impossible for any person to compute or ascertain what the stockholders of complainant bank ought to pay on the shares of the bank.” The State Railroad Cases, supra, were then referred to by the court and quotations therefrom made, and the principles therein announced were held to be sufficient to decide the case at bar, thus holding that the mere fact that a tax was void for some particular reason was not ground for the inter- PEOPLE’S NATIONAL BANK v. MARYE. 285 191 U. S. Opinion of the Court. position of a court of equity by injunction, where it could be seen there was an equitable obligation due from the taxpayer to pay a certain conceded amount, or an amount which could easily be ascertained, and which had not been paid. These cases in this court are sufficient to show the propriety of the rule, and that it has beep followed by us whenever the opportunity arose. The same principle has been, however, decided by many of the state courts. In Smith n. Humphrey, Auditor General, &c., 20 Michigan, 398, 409, Mr. Justice Cooley, delivering the opinion of the court, said: “He who comes into equity for relief must be willing to do equity; and there can be no ground upon which, in enjoining an excessive claim, the complainant can be discharged from that which is justly due. (Citing Story and Spence.) This is the rule even as between individuals; and there is at least equal reason for applying it in behalf of the State when it is seeking to collect its revenues. We have had occasion to apply it heretofore in suits to enjoin taxes. Conway v. Waverly, 15 Michigan, 257; Palmer v. Napoleon, 16 Michigan, 176. See also Hersey v. Supervisors of Milwaukee, 16 Wisconsin, 185; Bond v. Kenosha, 17 Wisconsin, 288.” This Michigan case was one on appeal from an absolute decree perpetually enjoining a sale for unpaid taxes because of a demand of interest by the proper authorities at a rate not allowed by law. The court held that it could not be sustained, and that the payment of the amount due, with interest at the lawful rate, must be made, and then the sale would be perpetually enjoined. In Merrill v. Humphrey, Auditor General, &c., 24 Michigan, 170, it was held that a property owner seeking to enjoin the collection of a tax on the ground that the amount is excessive s ould show by his bill, as near as may be practicable, what amount is just and what is excessive, and he should pay to the proper officer the amount which he concedes to be properly 286 OCTOBER TERM, 1903. Opinion of the Court. 191U. S. chargeable against himself. Mr. Justice Cooley, delivering the opinion of the court in that case, said (p. 175): “We have already said that the complainant should be required to do equity as a condition of relief. What is just to the public cannot be done unless he pays within due time such proportion of the tax assessed upon him as he concedes to be fair; and we think this payment should be required by the injunction master to be made to the proper officer as a condition to the allowance of injunction. To this extent, the case is within the principle of Conway v. Waverly, 15 Michigan, 257, and Palmer v. Napoleon, 16 Michigan, 176, heretofore decided by us, and of several Wisconsin cases,” etc. In Steuart v. Meyer, 54 Maryland, 454, where it appeared that the sale of certain property in the city of Baltimore for the non-payment of taxes was illegal in not complying with the statute, it was held (p. 468) that the complainant, as a condition of obtaining a decree setting aside the sale, must pay to the party entitled to receive it the full amount of the taxes in arrear at the time of the sale by the collector, together with the interest accrued thereon to the time of the payment, and also all taxes that had subsequently accrued and were due on the property with interest. In Alexander v. Merrick, 121 Illinois, 606, it was held that ’in accordance with the principle that a party seeking equity must do equity, a court of equity in setting aside a void tax sale as a cloud upon title, would still require the complainant to refund the taxes paid by the holders of the certificates of purchase on their purchase and also succeeding taxes to protect their purchase. In this case it was conceded that the tax sales were illegal and void, and that any deeds issued by the county clerk, based upon such sales, would also be unlawful and void, but nevertheless would, on their face, appear to be valid official acts of the clerk, and would cause a cloud upon the title to the lands. At page 614 the court said: “The complainant claims that the certificates of sale were clouds upon his title and obstacles in the way of its beneficial PEOPLE’S NATIONAL BANK v. MARYE. 287 191 U. S. Opinion of the Court. enjoyment. He asks a court of equity to dissipate these clouds and remove these obstacles. He, who seeks equity, must do equity. The court below by its decree should have required the complainant to refund the taxes paid by Reed and Forsythe as a condition to granting the relief prayed for. That such a requirement is proper in cases of this kind has been repeatedly held by this court.” In Morrison v. Hershire, Treasurer, &c., 32 Iowa, 271, 277, an assessment for local improvements, the court refused to interfere even if the assessments were, as to one of the fronts on the street, unauthorized unless the party complainant paid or tendered the portion legally due. The court said: “An elementary principle of equity is applicable to the objections here presented. It is not denied that under the rule of assessment as fixed by the council, if applied as contended for by plaintiffs, certain sums are due from the lot owners which are charges upon their lots. These sums the respective plaintiffs are bound by law and in equity to pay. Before plaintiffs can claim relief as to the sums which they insist are overassessed upon their property, they must pay or offer to pay the sums lawfully and justly due, according to their own theory of the assessment; for he who seeks equity must do equity; but this plaintiffs have not done.” And on page 278: We understand that it is a settled rule in equity that where a party is in conscience bound to pay a certain sum of money which, together with an amount that he is not legally bound pay, is brought as a legal claim against him, equity will not restrain the collection of the whole, unless he pay or offer to pay, by tender, the sum which he justly and legally owes.” The rule requiring payment of the sum equitably due cannot be too rigorously enforced in cases regarding payment of axes. This rule does not assume the validity of the assessment for that sum, but it simply says that under the circum-s ances. the taxpayer shall have no right to come into court an enjoin the payment of any tax when the amount which, 288 OCTOBER TERM. 1903. Syllabus. 191 U. 8. equitably, he ought to pay is easily and certainly determinable from the conceded facts in the case. In the case at bar because certain deductions were not made, although there was a large sum assessable even if the deductions were allowed, the injunction granted has prevented the collection of any part of the assessments, and for twelve years the stockholders in these Lynchburg banks have paid not one dollar of taxes by reason of their ownership of such shares. This is inequitable and unjust, and a court of equity should not be made the instrument by which such injustice is continued. Although we reach the conclusion above stated on the ground we have discussed, it is not to be inferred that we regard the other grounds untenable. We intimate no opinion in regard to them. To the end that complainant may, if it so elect, pay as provided in this opinion, and then commence further proceedings, the dismissal of the bill will be without prejudice, and as thus modified the decree of the Circuit Court is Affirmed. CABLE v. UNITED STATES LIFE INSURANCE COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 28. Argued October 16, 19, 1903.—Decided November 30,1903. A corporation created by one State can transact business in another State only with the consent of the latter, which may accompany its consent with such conditions as it thinks proper to impose, provided they are not repugnant to the Constitution and laws of the United States, orm consistent either with those rules of public law which secure the juris ic tion and authority of each State from encroachment by all others, or those principles of natural justice which forbid condemnation without opportunity for defense. Where an insurance company, citizen of one State, has voluntarily accepte CABLE v. UNITED STATES LIFE INS. CO. 289 191 U. S. Statement of the Case. a license from another State, and has been sued in a court of that State, the fact that the license is subject to be revoked if the company should remove the action to the Federal courts, furnishes no ground for appealing to a Federal court to take jurisdiction of a suit in equity to cancel the policy if otherwise the court would have no jurisdiction. The theory that a complainant has no adequate remedy at law because it would not have the same control over an action brought against it as defendant as it would have as plaintiff in a suit brought by it, does not lay the foundation for the jurisdiction of a Federal court in an action in equity to enjoin the prosecution of the suit against it. Equitable jurisdiction does not accrue to the Federal court because it is thought that the law as administered by it is more favorable to a party seeking its aid than the law as administered by the courts of a State in which it has been sued. This case comes here upon certiorari, applied for by the petitioner, who was the administratrix of the estate of Herman D. Cable, deceased. 186 U. S. 482. The suit was brought in the Circuit Court of the United States for the Northern District of Illinois by complainant, The United States Life Insurance Company, of the city of New York and a citizen of that State, against Alice A. Cable, a citizen of the State of Illinois, to have a certain policy of insurance for $50,000, payable as therein stated, upon the life of the said Herman D. Cable, delivered up for cancellation, on the ground that the same had been procured by the fraud of the agents of the deceased. The bill averred that the complainant was an insurance company of New York, lawfully engaged in doing business throughout the United States, and particularly in Illinois, under a permit or license duly granted therefor; that it had issued its policy upon the life of Herman D. Cable, and that it was procured by the fraud and fraudulent representations of his agents, such fraud and fraudulent representations being set forth at length; also that defendant had commenced a suit in the state court of Illinois to recover upon the policy, which suit was instituted about one and a half hours prior to the filing of complainant’s original bill. A supplemental and amended bill was filed, in which, among other things, it was alleged: vol. cxci—19 290 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. “10. Your orator further avers that the Constitution and laws of the United States of America confer upon your orator the right to remove into this court said action at law so begun against your orator; that, on the other hand, the State of Illinois, by legislative enactment, has sought to prevent the removal to this court by insurance companies of actions similar to said action so begun by said administratrix, and has practically destroyed such right or made its exercise impracticable, by providing, in substance, that an insurance company shall forfeit and lose its right to do business in the State of Illinois upon removing any such action into this court; that by removing said action to this court your orator might lose its right to transact business in the State of Illinois, and would certainly become involved in serious controversy with said State respecting the transaction of any subsequent business by your orator in said State; that the laws of said State upon certain questions of general insurance law, as interpreted by its highest legal tribunal, and applicable to the facts in this case, are somewhat different from the laws of the United States as interpreted by the Federal courts, upon the same questions, and from the standpoint of the laws of the United States, are unduly and erroneously adverse to insurance companies; that your orator is entitled to an application of the law according to the decisions of the Federal courts; and that under the facts and circumstances, hereinbefore set forth in this bill, your orator is without a due and proper remedy at law in respect to the claim of said administratrix under said policy of insurance, but is without any remedy at law whatever in this court.” To this bill the defendant interposed a demurrer, among other things, for want of equity, and that demurrer was sustained by the Circuit Court but upon appeal to the Circuit Court of Appeals for the Seventh Circuit the decree sustaining the demurrer was overruled and the case remanded to the Circuit Court. 98 Fed. Rep. 761; same case, 39 C. C. A. 264. An answer was then put in by the administratrix of Cable s CABLE v. UNITED STATES LIFE INS. CO. 291 191 U. S. Argument for Petitioner. estate denying any fraud, and averring that she had, before the suit in the Federal court was commenced, herself commenced an action upon the policy in a proper state court of Illinois, and that it was her intention and desire to push such action to a speedy conclusion if permitted by the Federal court. The suit herein was tried and a decree entered that the policy was procured on behalf of the deceased by constructive fraud, and that no actual fraud was intended or practiced in the delivery of the same, and it was thereupon decreed that the policy should be delivered up and cancelled. The defendant appealed from such decree to the Circuit Court of Appeals, and the complainant took a cross-appeal so as to bring up the findings of fact as to the constructive fraud, so that, as counsel said, “the case might be heard and considered in the Circuit Court of Appeals upon the whole evidence, regardless of the findings of the master and of the Circuit Court.” This was done for the reason that, in counsel’s belief, the evidence showed a deliberate and intentional concealment on the part of Lord, the agent of the deceased, and therefore a plain fraud perpetrated by such agent. The Circuit Court of Appeals affirmed the judgment and upon application this court granted the writ of certiorari as stated. Mr. W. S. Oppenheim, with whom Mr. H. H. C. Miller was on the brief, for the petitioner: Where a suit at law is brought against an insurance company for a loss sustained under an insurance policy, a court of chancery has no jurisdiction to cancel the policy, since every ground set forth in the bill of complaint can be set up and tried as a defence in the action at law. §723,U. S. Rev. Stat. A suit in equity will not lie to cancel an insurance policy after the death of the insured. Phoenix Life Ins. Co. v. Bailey, 13 Wall. 616. The Judiciary Act provides that suits in equity shall not be sustained in either of the courts of the United States many 292 OCTOBER TERM, 1903. 191 U. S. Argument for Petitioner. case where a plain, adequate and complete remedy may be had at law. Hipp n. Babin, 19 How. 271; Parker v. W. L. Cotton & Woolen Co., 2 Black, 545; Boyce n. Grundy, 3 Pet. 210; Graves v. Ins. Co., 2 Cranch, 444; 1 Stat, at L. 82; Foley n. Hill, 1 Philadelphia, 399; Fire Ins. Co. v. Delavan, 8 Paige Ch. R. 422', Alexander v. Murihead, 2 Desaus, 162; 5 Am. Law Rep. 564; Home Ins. Co. v. Stanchfield, 1 Dill. 424; ¿Etna Life Ins. Co. v. Smith, 73 Fed. Rep. 318; Thrale v. Ross, 3 Bro. Ch. 56; Arundel v. Holmes, 4 Beav. 325; Norris v. Day, 4 You. & C. 475. The respondent had complied with the provisions of the Illinois Statutes, 2 Hurd’s R. S. 1899, ch. 73, by filing its written application for a license and was regularly authorized to do business within the State of Illinois. A foreign insurance company has no right to do business in the State without license and contracts entered into by it are controlled by the statutes of the State. New York Life Ins. Co. v. Cravens, 178 U. S. 389. The statute of the State under which respondent was licensed does not forbid a removal to the Federal court of suits brought against it in the state court, but simply reserves the right to revoke the license issued under the written agreement given by respondent to the State, if it does not submit its controversies to the judgment of the state courts and stand upon the same footing as domestic companies. This statute is constitutional and the agreement made by the respondent under which it procured its license is valid and binding. Doyle v. Continental Insurance Co., 94 U. S. 535. The Circuit Court of the United States cannot enjoin an action in the state court. Prior to the filing of the bill of complaint an action at law had been instituted against the respondent in the state courts and a summons issued therein and placed in the hands of the sheriff for service. Under the law of the State of Illinois jurisdiction attaches by the filing of a praecipe and issuance of a summons thereunder. Colhns v. Manville, 170 Illinois, 614; Schroeder v. Merchants & Mechanics Ins. Co., 104 Illinois, 71; Farmers Loan & Trust Co. v. CABLE v. UNITED STATES LIFE INS. CO. 293 191 U. S. Argument for Petitioner. Lake St. Elevated R. R. Co., 177 U. S. 51, and see § 720, U. S. Rev. Stat.; Diggo v. Wolcott, 4 Cranch, 179; Riggs v. Johnson Co., 6 Wall. 195; Orton v. Smith, 18 How. 265; Haines v. Carpenter, 91 U. S. 267; In re Sawyer, 124 U. S. 219. The disclosure made to the agent of the company was sufficient to put him upon guard and was ample notice to the company of the then condition of Mr. Cable’s health and that the delivery of the policy with such knowledge was a waiver of its provision concerning the delivery of the same during the good health of the insured. Phoenix Life Insurance Co. v. Raddin, 120 U. S. 183; Marston v. Kennebec Ins. Co., 89 Maine, 266; German American Ins. Co. v. Morris, 100 Kentucky, 29; Joyce on Ins. sec. 1870; Manhattan Life Ins. Co. v. J. P. Willis & Bro., 60 Fed. Rep. 236. Under the facts the remedy at law of respondent is complete and adequate. The effect of a decree in the present case would not necessarily be a final adjudication as to the rights of the parties, should there be a dismissal of the bill. Every defence had by the insurance company can be made in the suit brought in the state court. The question then arises whether such a clear and uncontroverted case of fraud has been made as will authorize the court to sustain the bill. Southern Development Co. v. Silva, 125 U. S. 247; Farnsworth v. Duffner, 142 U. S. 207; Atlantic Delaine Co. v. James, 94 U. S. 207; Morse Arms Mfg. Co. v. Winchester Repeating Arms Co., 33 Fed. Rep. 184; As to § 912, 2 Pomeroy’s Equity, see § 914 same volume. See also in reply to cases on respondent’s brief: Wood v. Am. Fire Ins. Co., 149 U. S. 382; Firemen’s Ins. Co. v. Thomas, 92 Fed. Rep. 127; McMaster v. N. Y. Life Ins. Co., 183 U. S. 25; Sioux City v. N. A. Trust Co., 173 U. S. 99; N. Y. Life Ins. Co. v. Cravens, 178 U. S. 389; Mutual Benefit v. Higgenbotham, 95 U. S. 380. When the insurance company issues its policy and forwards it to its agent for delivery, the insured would have the right to compel the delivery of the policy to him upon payment of the premium notwithstanding the agent might refuse to deliver 294 OCTOBER TERM, 1903. Argument for Respondent. 191 U. S. the policy. New York Life Ins. Co. v. Babcock, 104 Georgia, 67; Newark Machine Co. v. Kenton Ins. Co., 50 Ohio St. 549. When the proposition contained in the application is accepted by the company and its policy issued, it becomes a complete contract and from thenceforward the insured is entitled to the benefits of his contract. Travis v. Nederland Life Ins. Co., 104 Fed. Rep. 486; 43 C. C. A. 653. Where the policy is dated as of a certain time, it goes into force as of that date, although the policy may not be delivered and the premium paid until a subsequent date. McMaster case, supra; Mutual Life v. Thomson, 94 Kentucky, 253; Yonge v.. Equitable Life Ins. Co., 30 Fed. Rep. 902. Mr. William G. Beale, with whom Mr. Buell McKeever, Mr. Gilbert E. Porter and Mr. Charles E. Patterson were on the brief, for the respondent: Whether or not there was a consummated contract on the 21st of February depends, obviously, upon the intent or agreement of the parties. By the application the parties agreed that the policy should not take effect until delivery; and acceptance by Cable was essential to make a binding delivery. Smith v. Provident Savings Life Assurance Society, 13 C. C. A. 284; 65 Fed. Rep. 765; Equitable Life Assurance Society v. Me* Elroy, 28 C. C. A. 365; 83 Fed. Rep. 631; Piedmont, etc., Life Assurance Co. v. Ewing, 92 U. S. 377; Giddings v. Ins. Co., 102 U. S. 108; Markey v. Mutual Benefit Life Ins. Co., 126 Massachusetts, 158. • The application provided that the policy should not take effect until payment of the first premium, and that only the president, together with the secretary or the actuary, should have power to waive any condition of the policy, while the policy further provided that agents could not modify or change the contract, of which the application was made a part. There could be no delivery without payment, for the agent could not waive the effect of these limitations. Davis v. Mass. Mut. L. Ins. Co., 13 Blatch. 462; 7 Fed. Cas. 141, case 3642; Paine CABLE v. UNITED STATES LIFE INS. CO. 295 191 U. S. Argument for Respondent. v. Pacific Mut. L. Ins. Co., 2 C. C. A. 459; 51 Fed. Rep. 689; United Firemen’s Ins. Co. v. Thomas, 27 C. C. A. 42; 82 Fed. Rep. 406; Kohen v. Mut. Reserve Fund Life Assn., 28 Fed. Rep. 705; Misselhorn v. Mut. Reserve Fund Life Assn., 30 Fed. Rep. 545; N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519, 530; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308. The equitable jurisdiction of the Circuit Court of the United States was properly invoked and exercised, under the special circumstances of this case, because respondent did not have a plain, adequate, and complete remedy at law as such remedy is understood in the Federal courts. It could not itself institute any legal proceeding there, nor could it freely remove to that court any legal proceeding brought against it in the state court. Its constitutional right to have, through removal, any controversy at law with petitioner adjudicated in a Federal court had been hampered, embarrassed, and practically destroyed by an Illinois statute. The remedy at law which is a bar to equitable relief in a Federal court must exist on the law side of the same court. Lewis v. Cocks, 23 Wall. 466, 470; Kilbourn v. Sunderland, 130 U. S. 505, 514; Root v. Railway Co., 105 U. 8. 189, 216; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310; Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 391; Davis v. Wakelee, 156 U. S. 680, 688; Watson v. Sunderland, 5 Wall. 74, 79; Rich v. Braxton, 158 U. S. 375, 406; Boyce’s Executors v. Grundy, 3 Pet. 210, 215; Sullivan v. Portland, etc., R- R. Co., 94 U. S. 806, 811; Drexel v. Barney, 122 U. S. 241, 252; Gormley v. Clark, 134 U. S. 338, 349; Allen v. Hanks, 136 U. 8. 300; Tyler v. Savage, 143 U. S. 79, 95; Walla Walla v. Walla Walla Water Co., 172 U. 8. 1, 12; Smith v. American Nat. Bank, 32 C. C. A. 368, 376; 89 Fed. Rep. 832; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310, 315. The Illinois statute against removals is doubtless repugnant to the Federal Constitution and void, along with the agreement not to remove required by it. Barron v. Bumside, 121 U. 8. 186; Southern Pacific Co. v. Denton, 146 U. S. 202; Gal 296 OCTOBER TERM, 1903. Argument for Respondent. 191 U. g. veston, etc., Railway v. Gonzales, 151 U. S. 496, 502; Barrow Steamship Co. v. Kane, 170 U. S. 100, 111; Blake v. McClung, 172 U. S. 239, 255; Chattanooga R. & C. R. Co. v. Evans, 14 C. C. A. 116, 120; 66 Fed. Rep. 809, 814; Metropolitan L. Ins. Co. v. M’Nall, 81 Fed. Rep. 888; Mut. L. Ins. Co. of N.- Y. v. Boyle, 82 Fed. Rep. 705; Commonwealth v. E. Tenn. Coal Co., 30 S. W. Rep. 608 (Kentucky); Commonwealth v. Jellico Coal Min. Co., 30 S. W. Rep. 611 (Kentucky); Dayton Coal & Iron Co. v. Barton, 183 U. S. 24, 25. Doubtless respondent might, upon learning of the action at law brought against it, have abandoned its bill and removed the action at law to the Federal court, but that course would have been fraught with danger, for a controversy with the state superintendent of insurance, and an attempted revocation of respondent’s license, would have been certain to follow. Lewis v. Cocks, 23 Wall. 466; Root v. Railway Co., 105 U. S. 189, 216; Kilbourn v. Sunderland, 130 U. S. 505, 514; Smith n. Am. Nat. Bank, 32 C. C. A. 368, 376; 89 Fed. Rep. 832; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310, 315; Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 391. As respondent did not have the proper remedy at law in the Federal court, it is immaterial whether respondent had such a remedy in a state court. The equitable jurisdiction of the Federal courts does not depend, and cannot be made to depend, upon the adequacy of proceedings at law in the state courts. Bean v. Smith, 2 Mason, 252; 2 Fed. Cas. 1143, 1150, case 1174; Breeden v. Lee, 2 Hughes, 484; 4 Fed. Cas. 50, case 1828; Mayer v. Foulkrod, 4 Wash. Cir. Ct. 349; 16 Fed. Cas. 1231, case 9341; Coler v. Board of Commissioners, 89 Fed. Rep. 257; Niagara Fire Ins. Co. v. Cornell, 110 Fed. Rep. 816; Nat. Surety Co. n. State Bank, 120 Fed. Rep. 593, 602; Mississippi Mills v. Cohn, 150 U. S. 202; Smyth v. Ames, 169 U. S. 466, 516. See, also, Stanton v. Embry, 46 Connecticut, 595. Jurisdiction and procedure of the Federal courts cannot be made to depend upon, nor be controlled by, state legislation and state procedure; otherwise state legislation, by extending legal CABLE v. UNITED STATES LIFE INS. CO. 297 191 U. S. Argument for Respondent. remedies, might destroy all equitable jurisdiction on the. part of Federal courts. The jurisdiction and procedure in the Federal courts of law and of equity depend upon essential principles and distinctions as understood and applied by the Federal courts themselves. Bean v. Smith, 2 Mason, 252; 2 Fed. Cas. 1143, case 1174; Mayer v. Foulkrod, 4 Wash. Cir. Ct. 349; 16 Fed. Cas. 1231, case 9341; Robinson v. Campbell, 3 Wheat. 212, 222; Mississippi Mills v. Cohn, 150 U. S. 202; Smyth v. Ames, 169 U. S. 466, 516. Nor if that were material did respondent have a plain, adequate and complete remedy in the state courts of Illinois, because it could not have its controversy with petitioner properly decided there in accordance with correct principles of general insurance law as understood and applied by this court, and because it might not have been able to interpose in an action at law the defence that the policy had been procured by fraud. This shows the peculiar value of the right to be in the Federal court. The substantial questions involved are questions of general law upon which the Federal courts exercise their own judgment, independently of state decisions. Carpenter v. The Providence Washington Ins. Co., 16 Peters, 495; 511; Burgess v. Seligman, 107 U. S. 20, 33; B. & 0. R. R. Co. v. Baugh, 149 U. S. 368; Gloucester Ins. Co. v. Younger, 2 Cur. 338; 10 Fed. Cas. 495, 500, case 5487; Maier v. Fidelity Mut. Life Assn., 24 C. C. A. 239; 78 Fed. Rep. 566, 572; Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co., 27 C. C. A. 134; 82 Fed. Rep. 296. This court must consider its views of the principles of general insurance law to be sound, and any contrary views of other courts to be erroneous. This court and the Supreme Court of Illinois appear to differ radically. One or the other must be wrong, and if the Illinois Supreme Court is wrong, then respondent could have had no remedy at all in the state court from the standpoint of this court. Bean v. Smith, 2 Mason, 252; 2 Fed. Cas. 1143, 1150, case 1174. It is settled in this court that a mere solicitor or a local agent 298 OCTOBER TERM, 1903. 191 U. S. Argument for Respondent. of a life insurance company cannot bind his company, affirmatively or by waiver, through his agreements or knowledge, when plain and appropriate limitations and restrictions upon his authority are brought to the attention of an applicant for insurance by being embodied in the application. Davis v. Mass. Mut. L. Ins. Co., 13 Blatch. 462; 7 Fed. Cas. 141, case 3642; Paine v. Pacific Mut. L. Ins. Co., 2 C. C. A. 459; 51 Fed. Rep. 689; United Firemen’s Ins. Co. v. Thomas, 21 C. C. A. 42; 82 Fed. Rep. 406; Kohen v. Mut. Reserve Fund Life Assn., 28 Fed. Rep. 705; Misselhorn v. Mut. Reserve Fund Life Assn., 30 Fed. Rep. 545; A. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519, 530; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308. The Supreme Court of Illinois holds that any person who receives applications for life insurance, collects premiums, and delivers policies is authorized to waive a limitation or restriction upon his own authority contained in a policy or in an application, and to waive other provisions of the contract, and to bind the company by agreement or waiver in connection with the act of manual delivery, without regard to the expressed limitations or restrictions; and that court has expressly indicated a disinclination to accept the rule enunciated in the Fletcher case, 117 U. S. 519, and repeated in the Grand View Bldg. Association case, 183 U. S. 308. John Hancock Mutual Life Ins. Co. v. Schlink, 175 Illinois, 284, 289, 290; Royal Neighbors of America v. Boman, 177 Illinois, 27, 31. Under a recent decision of the Supreme Court of Illinois question exists whether the defense of fraud in procuring an insurance policy, not affecting its manual execution, can be made available in an action at law, or can only be made available in a suit in equity to cancel the policy. Robinson v. Sharp, 201 Illinois, 86; 66 N. E. Rep. 299. The remedy of respondent in a state court of Illinois is, therefore, very far from being “plain” and “adequate” at law. There had been no final and conclusive election to take the commuted value of the policy, and the possibility of a multi- CABLE v. UNITED STATES LIFE INS. CO. 299 191 U. S. Argument for Respondent. plicity of suits, or number of successive suits, against respondent for separate annual installments under the policy was additional ground for invoking the jurisdiction of a court of equity. Illinois Statutory Provisions concerning the “Administration of Estates,” Washington v. L. & N. Ry. Co., 136 Illinois, 49, 56; Boyce’s Executors v. Grundy, 3 Pet. 210, 215; Buzard v. Houston, 119 U. S. 347, 352; Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 392; Town of Springport v. Teutonia Sav. Bank, 75 N. Y. 397. Resort to equity was further sustainable on the ground that respondent might lose important evidence through lapse of time. Boyce's Executors v. Grundy, 3 Pet. 210, 215; Schmidt v. West, 104 Fed. Rep. 272; Fuller v. Percival, 126 Massachusetts, 381; 2 Story’s Eq. Juris. § 700. Under the circumstances the discretionary jurisdiction of a court of equity to cancel an instrument obtained by fraud was-properly exercised. 2 Joyce on Insurance, §§ 1674-1680; 2 May on Ins. § 573; 2 Story’s Eq. Juris. §§ 693, 700; Pomeroy’s Eq. Juris. § 912; Bromley v. Holland, Coop. 9, 21; The Prince of Wales, etc., Assn. Co. v. Palmer, 25 Beav. 605; British Equitable Assur. Co. v. Great Western Ry. Co., 20 Law T. 422; S. C., 38 L. J. (1869) N. S. 132, 314; Mutual Life Ins. Co. v. Pearson, 114 Fed. Rep. 395; Union Life Ins. Co. v. Riggs, 123 Fed. Rep. 312. See, also, cases cited by petitioner. Insurance Co. v. Bailey, 13 Wall. 616; Life Ins. Co. v. Bangs, 103 U. S. 780; Home Ins. Co. v. Stanchfield, 1 Dill. 424; 2 Abb. U. S. 1; 12 Fed. Cas. 449, case 6660. The power of the Federal court to take jurisdiction of the case and the propriety of its doing so were not affected by the commencement of petitioner’s action at law in the state court, nor by the prayer for an injunction, which was not taken by the final decree. There was neither actual nor attempted injunction of state court proceedings. The original restraining order was sought against a party, and was properly issued; but the final decree contains no injunction at all, though the Federal 300 OCTOBER TERM, 1903. Argument for Respondent. 191 U. S. court would have had power to order it. French v. Hay, 22 Wall. 250; Arrowsmith v. Gleason, 129 U. S. 86, 98-101; Marshall v. Holmes, 141 U. S. 589, 599-600; Nat. Surety Co. v. State Bank, 120 Fed. Rep. 593. Service of process was first had in the equity suit and gave the respondent the better right to proceed, if there were any question of priority involved. But there is no such question in the case, which shows two different suits, for different objects, proceeding, and capable of proceeding, concurrently in two different jurisdictions, the first judgment controlling if properly set up in the other proceeding. Buck v. Colbath, 3 Wall. 334, 345; Stanton v. Embrey, 93 U. S. 548, 553; Ins. Co. v. Brune's Assignee, 96 U. S. 588, 592; Gordon v. Gilfoil, 99 U. S. 168,172,178. Concurrent suits may proceed in different jurisdictions. Gates v. Bucki, 4 C. C. A. 116; 53 Fed. Rep. 961, 965; Short v. Hepburn, 21 C. C. A. 252; 75 Fed. Rep. 113; Appleton Water Works v. Central Trust Co., 35 C. C. A. 302, 305; 93 Fed. Rep. 286; Ogden City v. Weaver, 47 C. C. A. 485; 108 Fed. Rep. 564, 568; Nat. Foundry & Pipe Works v. Oconto City Water Supply Co., 51 C. C. A. 465; 113 Fed. Rep. 793, 800; Martin v. Baldwin, 19 Fed. Rep. 340; Hurst v. Everett, 21 Fed. Rep. 218; Sharon n. Hill, 22 Fed. Rep. 28; Lehman v. Rosengarten, 23 Fed. Rep. 642; Hospes v. O’Brien, 24 Fed. Rep. 145; Ball v. Tompkins, 41 Fed. Rep. 486; Gilmour v. Ewing, 50 Fed. Rep. 656; First Nat. Bank v. Duel Co., 74 Fed. Rep. 373; Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 398. Farmers’ Loan & Trust Co. v. Lake Street El. R. R. Co., 177 U. S. 51, 60, 61, has no application to this case. This case was correctly decided upon the merits because: The testimony shows the concealment of material facts and this was in itself fraud vitiating the policy. 1 May on Ins. §§ 190, 209, 212; 1 Joyce on Ins. § 643; 2 Joyce on Ins. §§ 1844-1849, 1855, 1869; 1 Story Eq. Jur. '§§ 215, 216; M’Lanahan v. Universal Ins. Co., 1 Pet. 170, 184, 185; Piedmont, etc., Life Ins. Co. v. Ewing, 92 U. S. 377; Sun Mut. Ins. Co. v. Ocean CABLE v. UNITED STATES LIFE INS. CO. 301 191 U. S. Argument for Respondent. Ins. Co., 107 U. S. 485, 510; Equitable Life Assurance Co. v. McElroy, 28 C. C. A. 365; 83 Fed. Rep. 631; Manhattan Life Ins. Co. v. Carder, 27 C. C. A. 344; 82 Fed. Rep. 986; Barnes v. Fidelity Mut. Life Ins. Assn., 43 Atl. Rep. 341 (Penn.); Life Ins. Clearing Co. v. Bullock, 33 C. C. A. 365; 91 Fed. Rep. 487; Ely v. Hallett, 2 Caines (N. Y.), 57. The defence being by way of confession and avoidance it was incumbent upon petitioner to show a full disclosure affirmatively. Underhill on Evidence, § 250; Elkin v. Jansen, 13 M. & W. 655; Carroll v. Malone, 28 Alabama, 521. Neither the disclosure pretended nor any disclosure could have affected the company because of the circumstances surrounding the delivery of the policy, the conditions therein, and in the application, and the limitations upon the agent’s authority, of all which the petitioners were cognizant or are conclusively presumed to have been cognizant. Insurance Co. v. Lyman, 15 Wall. 664; Insurance Co. v. Wolff, 95 U. S. 326; Insurance Co. v. Mowry, 96 U. S. 544; Thompson v. Insurance Co., 104 U. S. 252, 259; Insurance Co. v. Fletcher, 117 U. S. 519; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308; Paine v. Pacific Mut. Life Ins. Co., 2 C. C. A. 459; 51 Fed. Rep. 689; Union Nat. Bank v. German Ins. Co., 18 C. C. A. 203; 71 Fed. Rep. 473; Maier v. Fidelity Mut. Life Assn., 24 C. C. A. 239; 78 Fed. Rep. 566; United Firemen’s Ins. Co. v. Thomas, ‘¿I C. C. A. 42; 82 Fed. Rep. 406; N. C., on rehearing, 34 C. C. A. 240; 92 Fed. Rep. 127; U. S. Life Ins. Co. v. Smith, 34 C. C. A. 506; 92 Fed. Rep. 503; Davis v. Mass. Mut. Life Ins. Co., 13 Blatch. 462; 7 Fed. Cas. 141, case 3642; Lee v. Guardian Life Ins. Co., 5 Ins. L. Jour. 26; 5 Bigelow Ins. Cas. 18; 15 Fed. Cas. 158, case 8190. Even if McCabe’s testimony were wholly untrue and Lord had made a full disclosure to McCabe, and McCabe for his own purpose cooperated with Lord in the perpetration of a fraud upon the respondent, the petitioner could derive no benefit thereform. New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 529; Northern Assurance Co. v. Grand View Bldg. Assn., 183 302 OCTOBER TERM, 1903. Opinion of the Court. 191 U. s. U. S. 308; Maier v. Fidelity Mut. Life Assn., 24 C. C. A. 239; 78 Fed. Rep. 566; U. S. Life Ins. Co. v. Smith, 34 C. C. A. 506; 92 Fed. Rep. 503; National Life Ins. Co. v. Minch, 53 N. Y. 144; Ryan v. World Mutual Life Ins. Co., 41 Connecticut, 168. As there was no substantial or material fact in controversy, nothing could properly have been submitted to a jury if an action at law had been instituted in the Federal court. It would have been proper to direct a verdict for respondent upon a trial at law. Pleasants v. Fant, 22 Wall. 116; Hendrik v. Lindsay et al., 93 U. S. 143; Oscanyan n. Arms Co., 103 U. S. 261; People's Savings Bank v. Bates, 120 U. S. 556. There having been no abuse or improper exercise of discretion in taking jurisdiction, and the case having been correctly decided upon the merits, this court, following its uniform practice, should not disturb the decree. Allis n. Ins. Co., 97 U. S. 144; Lancaster v. Collins, 115 U. S. 222, 227; Rice v. Edwards, 131 U. S. clxxv, clxxvii; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556, 579, 580. Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. It is contended, upon the part of the administratrix of the estate of the assured, that the court below had no jurisdiction on the ground that there existed a complete and adequate remedy (or defence) at law when the company was sued upon the policy, and that the effect of allowing this jurisdiction in the Circuit Court is to improperly deprive the defendant herein of a trial by jury. It is conceded by the plaintiff in error that no cause of action existed in favor of the complainant herein upon the law side of the Federal court, the contention being that the company could set up, as a defence to any action brought against it in the Federal court, those allegations of fraud which, being proved, would constitute a perfect and complete defence to any action upon the policy. CABLE v. UNITED STATES LIFE INS. CO. 303 191 U. S. Opinion of the Court. The company, however,' avers that the administratrix has elected not to bring her action in the Federal court, although she might have done so on the gound of diversity of citizenship, but has, instead of so doing, brought it in the state court, and hence the company would have no opportunity of setting up its defence in a Federal court in an action brought on the policy, and it insists that on that account it has not that complete and adequate remedy or defence at law, in the same jurisdiction, which it contends is necessary in such case. It is true that the remedy or defence which will oust an equity court of jurisdiction must be as complete and as adequate, as sufficient and as final, as the remedy in equity, or else the latter court retains jurisdiction, and it must be a remedy which may be resorted to without impediment created otherwise than by the act of the party, and the remedy or defence must be capable of being asserted without rendering the party asserting it liable to the imposition of heavy penalties or forfeitures, arising other than by reason of its own act. It is also urged, as an answer to the claim of the company, as to jurisdiction, that even though the remedy or defence at law must exist in the same (Federal) jurisdiction, yet it is within the power of the company, if it see fit to do so, to remove the action in the state court to the Federal court, and thus its defence at law, while adequate, would also be within the same jurisdiction in which its suit in equity was commenced. It is further insisted by the administratrix that it is unnecessary that an action at law should have been commenced in the same jurisdiction, but it is sufficient that the defence would be available and complete if such an action should be commenced in a Federal court of law. As to the removal of the action from the state to the Federal court, the company avers that, even assuming it had the right so to remove, yet it insists that such removal would be too hazardous to the company by subjecting it to a possible revocation of its license to do business in the State to be of any adequate avail. 304 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. It is also argued upon the part of the company that the position of a defendant in an action is not so advantageous as that of a plaintiff, as the plaintiff has the conduct of a cause largely within his own control; and it is said that the law as administered in the state court is not so favorable to insurance companies as is the case in the Federal courts, and that the company had the right to an administration of the law by the Federal instead of the state court by reason of the diversity of citizenship. These objections are to be considered. . In Hurd’s Revised Statutes of Illinois, chap. 73, title “Insurance,” in relation to foreign insurance companies, it is provided: That any such company must first file a written application for a license, in which it shall state that it desires to transact the business of insurance, and that it will accept a license according to the laws of the State, “and that said license shall cease and terminate in case, and whenever, it shall remove or make application to remove into any United States court, any action or proceeding commenced in any of the state courts, of this State, upon any claim or cause of action arising out of any business transaction, in fact, done in this State,” etc. The statute also provides that if any company thereafter removes or applies to remove into the United States court any action commenced in a state court of the kind above mentioned, “it is hereby made the imperative duty of the auditor of public accounts, at once to revoke, cancel and annul the license issued to such incorporated company, association or partnership; and thereafter no such incorporated company, association or partnership shall transact within this State any business for which it was incorporated until again duly licensed. In case such revocation of license shall be made because of the removal of or the attempt to remove any action from a state court of this State to any United States court no renewal of such license shall be made within three years after such revocation.” Provision is also made that if the license is revoked, pubheation of the fact shall be made in the newspapers. CABLE v. UNITED STATES LIFE INS. CO. 305 191 U. S. Opinion of the Court. This court has held that, although there may be power in a Federal court of equity in a proper case to order the delivery up and cancellation of a policy of insurance obtained upon fraudulent representations and suppression of facts, yet it will not generally do so when those representations and suppressions can be perfectly well established in a defence at law in a suit upon the policy, and it, therefore, affirmed a decree which dismissed, without prejudice, a bill filed for obtaining the delivery up and cancellation of a policy so issued, although the evidences of the fraud were considerable and a suit on the policy had been begun in an action at law after the bill in equity was filed. Insurance Co. v. Bailey, 13 Wall. 616. That was a suit by the company to obtain the delivery up and cancellation of certain policies of life insurance after the death of the assured, on the ground that the policies had been procured by the defendant, the widow of the deceased, by fraudulent suppression of material facts, and by the misrepresentation of others of the same class. The answer denied the allegations made. It was held that the company would have a perfect defence at law in an action by the holder upon the policy of insurance, and for that reason equity would refuse to take jurisdiction of an action to compel the delivery up and cancellation of the policies. The court said: “By the death of the cestui que vie the obligation to pay, as expressed in the policies, became fixed and absolute, subject only to the condition to give notice and furnish proof of that event within ninety days. Notice having been given and the required proof furnished, the obligation to pay certainly became fixed by the terms of the policies and the sums insured became a purely legal demand, and if so, it is difficult to see what remedy, more nearly perfect and complete, the appellants can have than is afforded them by their right to make defence at law, which secures to them the right of trial by jury. nere a party, if his theory of the controversy is correct, has a good defence at law to ‘a purely legal demand,’ he should be left to that means of defence, as he has no occasion to resort vol. cxci—20 306 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. to a court of equity for relief, unless he is prepared to allege and prove some special circumstances to show that he may suffer irreparable injury if he is denied a preventive remedy.” To the same effect are Home Insurance Co. v. Stanchfield, 1 Dillon, 424; ¿Etna Life Insurance Co. v. Smith, 73 Fed. Rep. 318. Complainant insists that in this case special circumstances are shown that it may suffer irreparable injury if jurisdiction be denied. Those special circumstances have already been mentioned and the question is whether they are sufficient to furnish ground for a Federal court of equity to take jurisdiction herein. We start with the proposition that, to any action brought upon the policy in a Federal court, the company would have a complete and adequate defence by proving the fraud as alleged in the bill herein. That shows a defence in the same jurisdiction resorted to by the complainant herein. It is answered, however, that the action has not been commenced in the Federal court, but, on the contrary, the administratrix has commenced her action in the state court, and hence the defence, if made in the state court, is not in the same jurisdiction as that in which the bill in this case was filed. But the company may bring its defence within the same jurisdiction by removing the case from the state to the Federal court, which it has the right to do on account of the diversity of citizenship of the parties thereto. No stipulation or - agreement, founded on a state statute or otherwise, which the company may have entered into could prevent the removal of the case in the exercise of its constitutional right. This has been so held in Insurance Co. v. Morse, 20 Wall. 445, and that case has been repeatedly approved. See Doyle v. Continental Insurance Co., 94 U. S. 535; Barron v. Burnside, 121 U. S. 186. In Doyle v. Continental Insurance Co., supra, it was held that a State had the right to impose conditions not in conflict with the Constitution or the laws of the United States, to the transaction of business within its territory by a foreign insur- CABLE v. UNITED STATES LIFE INS. CO. 307 191 U. S. Opinion of the Court. ance company, and to exclude such company from its territory, or, having given a license, to revoke it, with or without cause, and it was further decided that an injunction to restrain a state officer from revoking and cancelling a license to a foreign company to do business within the State, because the company has, contrary to the state statute, removed a case from the state to the Federal court, would not be granted, and it was remarked that, as the State had the right to exclude a foreign insurance company, the means by which she caused such exclusion or the motives of her action were not the subject of judicial inquiry. Whether this case has been shaken by the subsequent cases of Barron v. Burnside, 121 U. S. 186, 199; Blake v. McClung, 172 U. S. 239, 254, and Dayton Coal & Iron Co. v. Barton, 183 U. S. 23, 25, it is not material here to discuss. It has from an early day been held that a corporation created by one State could transact business in another State only with the consent, expressed or implied, of the latter State, and that such consent might be accompanied by such conditions as the latter State might think fit to impose, provided they were not repugnant to the Constitution or laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State free from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defence. Lafayette Insurance Co. v. French, 18 How. 404, 407; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; New York Life Insurance Co. v. Cravens, 178 U. S. 389, 401; Hancock Mutual Life Insurance Co. v. Warren, 181 U. S. 73, 76. One thing is entirely clear, that the company could have removed this case from the state to the Federal court, notwithstanding the state statute or anything contained in its application for a license to do business within the State. Upon removal the company would have the full and adequate defence under the law as administered by the Federal courts that it would have in the equity case. Whether, as a result of such removal, the State would have the right by reason of the stat 308 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. ute to revoke the license given to the company, is not a question which it is necessary for us to here discuss or determine. But assuming the right of removal, the company says that it may thereby subject itself to a revocation of its license, or at least to litigation, to prevent the state authorities from revoking it, and it ought not to be put to any such litigation or possible injury or inconvenience. The embarrassment attaching to the complainant herein on account of a removal, if any, is one of its own creation. As a condition upon which it was admitted to do business in the State, it voluntarily signed the application, in which it promised to accept a license according to the laws of Illinois, and agreed that the license should terminate in case the company should remove any action commenced in the state court to the United States court, as already stated. We think the existence of these facts furnishes no ground for appealing to a Federal court of equity to take jurisdiction of a suit to cancel the policy, where otherwise the court would have none. The state statute could not prevent the removal. If, because of a removal, ground was furnished for the revocation of the license, that fact would not justify a resort to a Federal court and ought not to, because, as we have said already, the contingency is one of the complainant’s own creation, and it ought not, therefore, to be able to avail itself of an embarrassment which it has voluntarily created, as a foundation for jurisdiction in a Federal court which would not otherwise exist. It signed its application to do. business in order to come into the State and reap the profits which it thought it might earn by transacting its business in the State. There was no coercion upon it to make the application or to take the permit on the condition stated. Upon the whole, it chose to make such application and receive the license upon that condition. If the condition be illegal and no ground for a revocation of the license, any subsequent litigation which the company may have by reason of such removal with the state officials to prevent the revocation of the license on that account is still CABLE v. UNITED STATES LIFE INS. CO. 309 191 U. S. Opinion of the Court. matter caused by its own action, and cannot, in our judgment, furnish any ground for jurisdiction in the Federal courts. Still less do we think that any foundation is laid for that jurisdiction based upon the theory that the company would not have the same control of the case as a defendant that it would as plaintiff. That is not the case in modern practice. The defendant can urge the case to trial against the desires of the plaintiff, and its defence may be shown as well and conveniently by a defendant, as the cause of action may be shown by the plaintiff. The right of the plaintiff to discontinue the action does not furnish ground for equitable jurisdiction. If it did, then equity would always have jurisdiction and the rule would be worthless. The other ground stated as furnishing a special circumstance to show that complainant may suffer some irreparable injury if equity does not take jurisdiction, viz., that the law is more favorable to insurance companies as administered in the Federal than in the state court, and, therefore, equity ought to take jurisdiction in this case, upon the ground of the diversity of citizenship, cannot be regarded for a moment. It is immaterial whether the assertion be conceded or denied. It furnishes no ground for equitable jurisdiction in a case like this. Where a plaintiff in a state court, which has jurisdiction over the subject-matter, brings the defendant properly within such jurisdiction, he is entitled to a trial of his cause in that court, unless the case be removed to a Federal court upon some constitutional ground. If that ground exist, the removal can be made, but if it do not, equitable jurisdiction does not accrue to a Federal court because it is thought the law as administered by that court is more favorable to the party seeking its aid. We think that, within the rule in Insurance Co. v. Bailey, supra, the Circuit Court has no jurisdiction in this case. The judgment of the Circuit Court of Appeals for the Seventh Circuit and of the Circuit Court for the Northern District of Illinois must, therefore, be reversed, and the case remanded to 310 OCTOBER TERM, 1903. Statement of the Case. 191 u. S. the Circuit Court with directions to dismiss the bill, without prejudice. It is so ordered. Mr. Justice Harlan and Mr. Justice White, dissented. HIBBEN v. SMITH. ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA. No. 59. Argued November 5, 1903.—Decided November 30,1903. The amount of benefits resulting from an improvement, and assessed under a state statute which this court has declared to be constitutional is a question of fact, and a hearing upon it being assumed, the decision of the board making the assessment is final and no Federal question arises. In the apportionment of assessments for improvements due process of law is afforded to the taxpayer if he is given an opportunity to be heard before the body making the assessment; and, so far as the Federal Constitution is concerned, the state legislature may provide that such hearing shall be conclusive. Whether a judgment in a state court based on an assessment is void or only voidable because some of the members of the board were residents of, and taxpayers in, the assessment district is a proper question for the state courts to decide, and after the highest court of the State has held that the judgment is not void and cannot be attacked collaterally, this court will follow that determination. The plaintiff in error seeks by this writ to review the judgment of the Supreme Court of the State of Indiana, affirming a judgment in favor of one of the defendants in error, William C. Smith, foreclosing the lien of an assessment levied upon certain real estate in the town of Irvington, belonging to the plaintiff in error. The plaintiff Smith brought this action to foreclose the lien, and alleged in his complaint that he was the contractor for the doing of the work for a local improvement on Washington street in the town mentioned, and had complied with all the provisions of the statute and with his con- HIBBEN v. SMITH. 311 191U. S. Statement of the Case. tract, and had finished the work and was entitled to payment for the same; that an assessment to provide for such payment had been duly imposed by the board of town trustees, upon the property abutting on the portion of the street where the improvement was made, and that the defendant Sarah A. Hibben was the owner of lots abutting on that improved portion of the street, and her assessment amounted to over five thousand dollars, which she had not paid; that the assessment was then due with six per centum interest, and the plaintiff prayed that the lien might be foreclosed against her property, and that it might be sold for the satisfaction of the assessment, and for other proper relief in the premises. The defendant Hibben demurred to the complaint, and the same having been overruled, she filed an answer thereto. She also filed a cross complaint. The answer and cross complaint set up the same facts in substance and they both averred the unconstitutionality of the act of the legislature of Indiana providing for the improvement of streets under which the improvement in question was made, and also it was objected to the validity of the assessment that the alleged improvement was of no benefit to many of her lots, and that, on the contrary, the assessment upon such lots was greater than their value, and resulted in a substantial confiscation of her property in those lots; also that the assessment had been made by the front foot and without reference to the benefits received from the improvement, and that no hearing before the board of trustees was had and no consideration given to the question of whether or not the abutting property or any part thereof was specially benefited in an amount equal to, less than or in excess of the amounts fixed by the assessments which were confirmed by such board, but on the contrary that the assessments were made and confirmed upon the theory and belief that the statutes of the State established the rule of assessment at the same fixed price per lineal front foot on each side for the whole improvement, and that no change could be made therein by the board of trustees, and that the board refused at 312 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 U. S. such hearings to hear or consider any objection to the assessment based upon any inquiry into the amount of special benefit accruing to any abbutting lot or parcel of land. It was also averred in the answer and in the cross complaint that all the members of the board of trustees of the town of Irvington were residents of that town and taxpayers therein, and that two members of the board were owners of lots abutting upon said improvement and assessed therefor at the same rate per lineal front foot as the others, and it was averred that no assessment could legally be levied by such a board of trustees, and the assessment was for that reason wholly void. These defences contained in the answer and which were also set up in the cross complaint, were severally demurred to by the complainant Smith, and the demurrers sustained, and upon the refusal of the defendant Hibben to amend, judgment enforcing the lien was entered, which, upon appeal to the Supreme Court of Indiana, was affirmed. Mr. Russell T. McFall, with whom Mr. Mural W. Hopkins and Mr. Merrill Moores were on the brief, for plaintiff in error: I. In Indiana assessments for local street improvement are based upon and measured by the actual special benefits accruing to the land or lots assessed. City of New Albany v. Cook, 29 Indiana, 220; Adams v. City of Shelbyville, 154 Indiana, 467; McKee v. Town of Pendleton, 154 Indiana, 652; DeFrees v. Ferstl, 154 Indiana, 695; City of Indianapolis v. Holt, 155 Indiana, 222, 240; Taylor v. City of Crawfordsville, 155 Indiana, 403; Schaeffer v. Werling, 156 Indiana, 704; Shank v. Smith, 157 Indiana, 401; Leeds v. DeFrees, 157 Indiana, 392; Wray v. Fry, 158 Indiana, 92; Marion Bond Co. v. Johnson, 29 Ind. App. 294; Klein v. Nugent Gravel Co. (Ind. App.), 66 N. E. Rep. 486. II. The determination of the actual special benefits is a judicial function. Black on Judgts. §§ 290, 291; Cooley Const. Lim. (6th ed.) 108; Cooley on Taxation, 265, 266; Elliott on Mun. Corp. 130; Elliott Roads and Streets (2d ed.), §§ 281,564; Van Fleet, Coll. Att. § 16; Brown v. City of Denver, 7 Colorado, HIBBEN v. SMITH. 313 191 U. S. Argument for Plaintiff in Error. 305; S. C., 3 Am. & Eng. Corp. Cas. 630; Flournoy v. City of Jeffersonville, 17 Indiana, 169; City of Ft. Wayne v. Cody, 43 Indiana., 197; Campbell v. Dwiggins, 83 Indiana, 473; Anderson v. Baker, 98 Indiana, 587; Sunier v. Miller, 105 Indiana, 393; Harman v. Moore, 112 Indiana, 227; Garvin v. Daussman, 114 Indiana, 429; Kuntz v. Sumption, 117 Indiana, 1; Campbell v. Board of Com., 118 Indiana, 119; Barber, etc., Co. v. Edgerton, 125 Indiana, 455; Thompson v. Goldthwait, 132 Indiana, 20; Guckien v. Rothrock, 137 Indiana, 355; Adams School Twp. v. Irwin, 150 Indiana, 12; Kirsch v. Braun, 153 Indiana, 247; Town of Greenwood v. Lawson (Ind.), 64 N. E. Rep. 849, 850; Motz v. City of Detroit, 18 Michigan, 495; Thomas v. Gain, 35 Michigan, 155; Whiteford Tp. v. Probate Judge, 53 Michigan, 130; Overing v. Foote, 65 N. Y. 263; Stuart v. Palmer, 74 N. Y. 183; City of Phila. v. Miller, 49 Pa. St. 440; Santa Clara v. Southern Pacific R. R. Co., 13 Am. & Eng. R. R. Cas. 182; Meyers v. Shields, 61 Fed. Rep. 713, 728; Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 284; Hagar v. Reclamation District, 111 U. S. 701, 710; Dewey v. Des Moines, 173 U. S. 193. III. Due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States requires that the property of plaintiff in error be not taken away by an arbitrary act of the board of trustees of Irvington. The guarantee of “due process of law” or “the law of the land” is a guarantee against the exercise of arbitrary power. Freedom from arbitrary power is the chief and fundamental maxim of Anglo-Saxon and constitutional government. Audi alteram partem. No man shall be condemned unheard. Broom Max. (Sth Am. ed.) 113; In re Brook, 16 C. B. N. S. 416 (111 E. C. L. R.); In re Hammersmith Rent Charge, 4 Exch. 97; Reg. v. Archbishop of Canterbury, 1 E. & E. 559 (102 E. C. L. R.); Reg. v. Saddler’s Co., 10 H. L. Cas. 404; Boswell’s Case, 6 Rep. 52a; Graham v. Furber, 14 C. B. 134, 165 (78 E. C. L. B.); Prohibition del Roy, 12 Rep. 63; Capel v. Childs, 2 Cromp. & Jer. 558; Bonaker v. Evans, 16 Q. B. 162; Bagg’s Case, 11 314 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 U. S. Rep. 936, 99a; Rex v. Chancellor, etc., of Cambridge (Dr. Bentley's Case), 1 Strange, 557; Rex v. Beun, 6 T. R. 198; Harper v. Carr, 7 T. R. 270; Rex v. Geskin, 8 T. R. 209; Story on Const, vol. 2, § 1789; Cooley’s Const. Lim. 6th ed. 431, citing definition given by Mr. Webster in the Dartmouth College case, which has often been quoted; 4 Black. Com. 424; 2 Kent’s Com. (11th ed.) 2, note 3; Campbell v. Dwiggins, 83 Indiana, 473; Howard v. State, 66 Ohio, 249; Railroad Tax Cases, 13 Fed. Rep. 722, 751; State Tax on Foreign Held Bonds, 15 Wall. 300, 319; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation Dist., Ill U. S. 701, 708. It was against the arbitrary exercise of the taxing power that both the English people and the American colonies made their earliest and most vigorous claims to the protection of the law of the land. See Magna Charta; The Petition of Rights, 1 Car. I, c. 1; Bill of Right, 1 W. & M. sess. 2, c. 2; Stamp Act; Journal of Congress, vol. 1, p. 28, ed. Phil. 1800; Ordinance of 1787, art. 4; Journal Confederate Congress, vol. XII, p. 58; 2 Coke Inst. p. 46; 4 Black. Com. 424; Cooley Const. Lim. 35, 429, 599, 605, 606, 610, 612, 615, 617, 635,638; 2 Kent Com. (11th ed.) 3, note 6; McCullough v. State of Maryland, 4 Wheat. 316, 427; Freeland v. Hastings, 10 Allen, 570, 575; The Railroad Tax Cases, 13 Fed. Rep. 722, 734, 751, 757, 764. The statute gives to the board of town trustees exclusive judicial power, thus violating the fundamental principle of republican government that the three departments of government shall be kept separate. Cooley Const. Lim. (6th ed.) 104; People v. Chase, 165 Illinois, 527 (Torren’s Land Law Case); State v. Guilbert, 56 Ohio St. 575; Ex parte Logan Branch Bank, 1 Ohio St. 432; Whitcomb Case, 120 Massachusetts, 118, Sanborn v. Fellows, 22 N. H. 473; Langenberg v. Decker, 131 Indiana, 471; State v. Noble, 118 Indiana, 350, 366, 370; Kuntz v. Sumption, 117 Indiana, 1; Wilkins v. State, 113 Indiana, 514. As to due process of law, see, also, Cooper v. Board of Works, 108 E. C. L. R. 181; Zeigler v. S. & N. Ala. R. R. Co., 58 Ala HIBBEN v. SMITH. 315 191 U. S. Argument for Plaintiff in Error. bama, 594; Klein v. Nugent Gravel Co., 66 N. E. Rep. 486 (Ind. App.); Jones Co. v. Perry, 26 Ind. App. 554; Lipes v. Hand, 104 Indian«., 503, 507; Heick v. Voight, 110 Indiana, 279, 285; Paul v. Detroit, 32 Michigan, 108, 118; Sanborn v. Fellows, 22 N. H. 473; Stuart v. Palmer, 74 N. Y. 183; Harmon v. State, 66 Ohio St. 249; Calder v. Bull, 3 Dallas, 388; Bank of Columbia v. Okely, 4 Wheat. 235, 244; Van Ness v. Pacard, 2 Pet. 137, 144; Murray’s Lessee n. Hoboken Land, etc., Co., 18 How. 272; McVeigh v. United States, 11 Wall. 259; Galpin v. Page, 18 Wall. 350, 368; Windsor v. McVeigh, 93 U. S. 274; Pearson v. Yew-dall, 95 U. S. 294; Davidson v. New Orleans, 96 U. S. 97, 104; Hurtado v. California, 110 U. S. 516, 536; Hovey v. Elliott, 167 U. S. 409; French v. Barber Asphalt Paving Co., 181 U. S. 324. IV. Due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States requires that no man shall be judge in his own cause. Plaintiff claims while town trustees may apportion and determine the special benefits of a local assessment the benefits must be apportioned and determined by due process of law; and that among the certain established and recognized maxims of right that are guaranteed by the Federal Constitution, is that no man shall be a judge in his own cause. The old maxims show that this is essential. Coke, Litt. 141a; Broom Max. (8th Am. ed.) 116; Littleton, § 212; Earl of Derby’s case, 12 Coke, 114; Jenk. Cent. Cas. 40; Pandect’s Pass. II, lib. 5, 17. If the duty to be exercised is of such a judicial character that under the influence of his interest in the subject matter the judge may so decide as to give to himself an unjust or inequitable advantage and perforce impose upon other parties a corresponding inequity or disadvantage, it is a case where the constitutional guaranty of due process of law is applicable. North Bloomfield G. M. Co. v. Keyser, 58 California, 315; Hel-bron v. Campbell, 23 Pac. Rep. 122; Meyerv. City of San Diego, 121 California, 102; Inhabitants of North Hampton v. Smith, U Mete. (Mass.) 390; Taylor v. Williams, 26 Texas, 583. As to taxpayers being disqualified the disqualification does 316 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 U. S. not spring from the fact that the judge is a citizen, inhabitant and taxpayer of the city, but from the circumstance that he owns property within the city which may or may not be liable to taxation as he may decide. The authorities agree that in such a case the citizen and taxpayer is disqualified. City of Oakland v. Oakland Water Front Co., 118 California, 249; State v. Young, 31 Florida, 594; Peck v. Freeholders of Essex, 21 N. J. L. 656; Ex parte Harris, 26 Florida, 77 (23 Am. St. Rep. 548); City of Guthrie v. Shaffer, 1 Oklahoma, 459; Austin v. Nolle, 85 Texas, 520; State v. City of Cisco (Tex. Civ.), 33 S. W. Rep. 244; Jefferson Co., etc., v. Milwaukee Co., etc., 20 Wisconsin, 139. The disqualification is applicable to all officers and boards whose duties are judicial. Elliott on Muncp. Corporations, § 130; Markley v. Rudy, 115 Indiana, 533; Meyer y. Shields, 61 Fed. Rep. 713, 723; Stockwell v. Township Board of White Lake, 22 Michigan, 341; Conklin v. Squire, 29 Weekly Law Bull. 157. Had one of the appellees brought suit against the town to determine and collect the cost of paving the street crossings, and all the members of this town board had been on the jury, either plaintiff or defendant could have challenged them for cause, for the reason that they were residents and taxpayers of the town. Hern v. City of Greensburg, 51 Indiana, 119; Town of Albion v. Hetrick, 90 Indiana, 545, 549; City of Goshen v. England, 119 Indiana, 368; Gaff v. State, 155 Indiana, 277. Necessity does not cure this defect except in general and universal questions which do not apply to this case. Board of Com. of Fountain Co. v. Loeb, 68 Indiana, 29; State v. Crane, 36 N. J. L. 394, 400; Moses n. Julian, 45 N. H. 52; 84 Am. Dec. 114; Washington Ins. Co. v. Price, Hopk. Ch. 1; Anonymous, 1 Salk. 396. Nor is the legislature the final judge of this necessity. To say that the legislature is the final judge in all cases of what interest will disqualify, would be to repudiate all our constitutions, both written and unwritten, and to leave the citizen at the mercy of every legislative whim and caprice. HIBBEN v. SMITH. 317 191 U. S. Argument for Plaintiff in Error. Such a legislative act is unconstitutional. Cooley’s Const. Lim. (6th ed.) 506, et seq.; Conklin v. Squire, 29 Weekly Law Bull. 157; Day v. Savadge, Hob. 85; Hasketh v. Braddock, 3 Burr. 1847; Bonham Case, 8 Coke, 212, 219, 224; Great Charte v. Kensington, 2 Stra. 1173; State v. Castleberry, 23 Alabama, 85; Chamber v. Hodges, 23 Texas, 104. The judgment rendered under such circumstances is void —not voidable and can be attacked collaterally. Sanborn v. Fellows, 22 N. H. 473; Moses v. Julian, 45 N. H. 52; Stearns v. Wright, 51 N. H. 600; Bass v. City of Ft. Wayne, 121 Indiana, 389; Chicago & Atlanta Ry. Co. v. Summers, 113 Indiana, 10; Gay v. Minot, 3 Cush. 353; Hall v. Thayer, 105 Massachusetts, 219; Taylor v. County Com. of Worcester, 105 Massachusetts, 225; State v. Crane, 36 N. J. L. 394; Wetzel v. State, 5 Tex. Civ. App. 17; Donnelly v. Howard, 60 California, 291Galbreath v. Newton, 30 Mo. App. 380. The only reason given for denying the right to collaterally attack the judgment of interested tribunals is that the complaining party should either take a change of venue to an impartial tribunal or attack the judgment directly by appeal or writ of error. Bradley v. City of Frankfort, 99 Indiana, 417; Bass v. City of Ft. Wayne, 121 Indiana, 389; Board of Com. of Carroll Co. v. Justice, 133 Indiana, 89. For other cases on the point that no one can be a judge in his own case, see Bacon’s Abr. “Jury” M, 3; Bouvier Law Diet. tit. Judge; 1 Brook’s Abr. 177, tit. conusans, 27; Burns’s Justice, III, 132; C. 3, 5, 1; Com. Dig. 101, 4, Justices, I, 3; Cooley Const. Lim. (6th ed.) 506; Domat’s Public Law, lib. 2, tit. 1, sec. 2, 14; Elliott on Mun. Corp. § 130; 4 Inst. 71; Just. Code, lib. 1, tit. 1, 16; Pothier’s Pro. Civ. C. 2, sec. 5; Rolle, Abr. Judges, Pl. 11; Voet. ad. Pand. lib. 5, tit. 1, 43; Jenk. 40, case 76; 90, case 74; Bonham Case, 8 Coke, 212, 219, 224; Queen v. Com. for Cheltenham, 1 A. & E. N. S. 468; Reg. v. Canal Co., 14 Q. B. 853; 68 E. C. L. R.; Regina v. Justices, 14 Eng. L. & Eq. 93; Ranger v. Great Western Ry. Co., 5 H. L. Cas. 72,88, 89; State v. Castleberry, 23 Alabama, 85; Heydenfeldt v. Towns, 318 OCTOBER TERM, 1903. 191 U. S. Argument for Defendants in Error. 27 Alabama, 423; Lent v. Tillson, 72 California, 404, 428; Ramish v. Hartwell, 126 California, 443; Hadley v. Dague, 130 California, 207; Hawley v. Baldwin, 19 Connecticut, 585; Appeal of Nettleton, 28 Connecticut, 268; Ochus v. Shelden, 12 Florida, 138; Klein v. Tuhey, 13 Ind. App. 74; Hudson v. Wood, 52 N. E. Rep. 612 (Ind. App.); Shoemaker v. Smith, 74 Indiana, 71, 75; Fechheimer v. Washington, T7 Indiana, 366; Bradley v. City of Frankfort, 99 Indiana, 417; Block v. State, 100 Indiana, 357; Pearcy v. Mich. Mutual Life Ins. Co., Ill Indiana, 59; Zimmerman v. State, 115 Indiana, 129; Board v. Heaston, 144 Indiana, 583; Chicago &c. Co. v. City of Huntington, 149 Indiana, 518; Adams v. City of Shelbyville, 154 Indiana, 467; Clifford v. York Co. Com., 59 Maine, 262; Buckingham v. Davis, 9 Maryland, 324; Gay v. Minot, 3 Cush. 352, 354; Tolland v. County Com., 13 Gray, 12; Pearce v. Atwood, 13 Massachusetts, 324; Taylor v. County Com. of Worcester, 105 Massachusetts, 225; Hall v. Thayer, 105 Massachusetts, 219; Ames v. Port Huron Log Driving & Booming Co., 11 Michigan, 139; Paul v. Detroit, 32 Michigan, 108, 117; Russell v. Perry, 14 N. H. 152; State v. Newark, 1 Dutcher, 399, 405; Schroder n. Ehlers, 31 N. J. L. 44; Traction Co. v. Board of Works, 56 N. J. L. 431; Foster v. Cape May, 60 N. J. L. 78, 82; Oakley v. Aspinwall, 3 N. Y. 547; Converse v. McArthur, 17 Barb. 410, 411; Edwards v. Russell, 21 Wend. 64; Diveny v. City of Elmira, 51 N. Y. 506; White v. Connelly, 105 N. C. 65; Gregory v. Cleveland R. R. Co., 4 Ohio St. 675; Schroder v. Overman, 61 Ohio St. 1; Cleveland v. Tripp, 13 R. I. 50; Templeton v. Giddings, 12 S. W. Rep. 851 (Tex.); Barnett v. Ashmore, 5 Washington St. 163; Findley v. Smith, 42 W. Va. 299; Case v. Hoffman, 100 Wisconsin, 314, 351; Aultman & Taylor Co. v. Brumfield, 94 Fed. Rep. 423; Calder v. Bull, 3 Dallas, 386, 388; Pennoyer v. Neff, 95 U. S. 714, 733; Wight v. Davidson, 181 U. S. 371. Mr. Lawson M. Harvey, with whom Mr. William A. Pickens, Mr. Linton A. Cox and Mr. Sylvan W. Kahn were on the brief, for the defendants in error: HIBBEN v. SMITH. 319 191 U. S. Argument for Defendants in Error. That this statute of Indiana is not unconstitutional has been repeatedly decided in Indiana. Adams v. Shelbyville, 154 Indiana, 467; Leeds v. Dejrees, 61 N. E. Rep. 930; Shank v. Smith, 61 N. E. Rep. 932; Martin v. Willis, 60 N. E. Rep. 1021; Schaeffer v. Werling, 156 Indiana, 704, affirmed 188 U. S. 516. The decision of the state Supreme Court will be followed. French v. Barber Asphalt Co., 181 U. S. 328; Gilman v. Sheboygan, 2 Black. 510; Whitman Co. v. Buffalo, 118 Fed. Rep. 773; Gallup v. Schmidt, 183 U. S. 306, 307. This court will not again consider a question it has directly and specifically decided. Swope v. Lefingwell, 15 Otto, 3; Foster v. Kansas, 112 U. S. 201. The procedure of the trustees cannot render the statute unconstitutional. Cummings v. Bank, 101 U. S. 153. The decision of the state court rests on a ground of estoppel or waiver of rights which is broad enough to support the decision, hence a Federal question, if raised, will not be considered. Schaeffer v. Werling, supra; Gillis v. Stinchffeld, 159 U. S. 658; Pittsburg, etc., Co. v. Cleveland, etc., Co., 178 U. S. 280; Peirce v. Somerset Ry. Co., 171 U. S. 641, 648. The decision of the state court holds that plaintiff in error had a remedy under the laws of the State and failed to invoke the same. Smith v. Shank, 61 N. E. Rep. 932. In Indiana a remedy by injunction exists to prevent any action by interested trustees. Board v. Justice, 133 Indiana, 95. A petition for injunction before action is an adequate and direct remedy. A defence of the character here made after judgment or assessment is a collateral attack. Jackson v. Smith, 120 Indiana, 521; Johnson v. State, 116 Indiana, 375; Kiphart v. R. R. Co., 7 Ind. App. 124; Jackson v. State, 104 Indiana, 516. The state court construes such a judgment to be voidable only. Board v. Justice, supra. No Federal question is involved in the construction by the state court of a state judgment. Newport Co. v. Newport, 151 U. S. 527. 320 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. The rule that objection to the competency of an officer to pass on a question of a judicial nature must be made at the earliest opportunity or is waived, is a matter of state practice and local law, and as such does not infringe any right under the Federal Constitution. Dreyer v. Illinois, 187 U. S. 71. This is an established rule of practice in Indiana. Baldwin v. Runyon, 8 Ind. App. 348; Bradley v. Frankfort, 99 Indiana, 417, and cases cited therein. If it be found that the state court opinion does not cover the matter of alleged incompetency of trustees, then the court did not decide this question and committed no error. Schaeffer n. Werling, supra; Detroit Ry. Co. v. Guthard, 114 U. S. 133. This court has held that, under the circumstances shown of record here, an injunction is an adequate remedy and that a constitutional right may be waived by not resorting to a remedy in equity. Cummings v. Bank, 101 U. S. 153; Wight v. Dwiggins, 181 U. S. 371. Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. The Supreme Court of the State of Indiana has held the statute to be constitutional under which this lien was established and judgment entered for its foreclosure. That court has held that under the state constitution an assessment arbitrarily by the front foot is unconstitutional, but that the statute in question provides only a rule of prima facie assessment by the front foot, and that such assessments are subject to review and alteration by the common council or board of trustees upon the basis of special benefits received from the improvement, and the common council and board of trustees not only have the power, but it is their imperative duty to adjust an assessment to conform to the actual special benefits accruing to each of the abutting property owners. Adams v. City of Shelbyville, 154 Indiana, 467; Schaeffer v. Werling, 156 Indiana, 704; Martin v. Wills, 60 N. E. Rep. 1021; Leeds v. HIBBEN v. SMITH. 321 191 U. S. Opinion of the Court. De Frees, 61N. E. Rep. 930; Shank v. Smith, 61 N. E. Rep. 932. Schaeffer v. Werling, supra, has been affirmed upon writ of error by this court, 188 U. S. 516, where it was held that the statute in question was not in conflict with the Constitution of the United States, and the principle was reiterated in that case that the construction placed by the highest court of a State upon a statute providing for paving the streets and distributing the assessment therefor was conclusive upon this court. See also Merchants & Manufacturers’ Bank v. Pennsylvania, 167 U. S. 461. The amount of benefits resulting from the improvement is a question of fact, and a hearing upon it being assumed, the decision of the board is final. No constitutional question of a Federal nature arises therefrom. If the board of trustees refuse to hear the owners of property abutting the street improvement, in regard to the subject of benefits, and arbitrarily proceed to levy the assessment solely according to the front foot, the Supreme Court of Indiana has held that such lot owner was not without remedy, and that he could by mandamus or injunction compel a hearing as to the amount of the assessment upon each lot, or prevent the approval of the engineer’s report until such hearing had been accorded, and that the lot owner could not waive such a remedy and make the denial of a hearing available as a defence in an action to collect the assessment. Shank v. Smith, supra. Under the cases above cited this court follows the decision of the Supreme Court of Indiana upon this question of remedy. The claim set up on the part of the lot owner, that there can be no due process of law under which an assessment can be made which does not provide for a review of such assessment and. a hearing by a court, is not tenable. Assuming the necessity of a hearing before an assessment can be made conclusive, the law may provide for that hearing by the body which levies the assessment, and after such hearing may make the decision of that body conclusive. Although in imposing such vol. cxci—21 322 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. assessments the common council or board of trustees may be acting somewhat in a judicial character, yet the foundation of the right to assess exists in the taxing power, and it is not necessary that in imposing an assessment there shall be a hearing before a court provided by the law in order to give validity to such assessment. Due process of law is afforded where there is opportunity to be heard before the body which is to make the assessment, and the legislature of a State may provide that such hearing shall be conclusive so far as the Federal Constitution is concerned. In Fallbrook Irrigation District v. Bradley, 164 U. S. 112,168, it was said that— “Due process of law is not violated, and the equal protection of the laws is given, when the ordinary course is pursued in such proceedings for the assessment and collection of taxes that has been customarily followed in the State, and where the party who may subsequently be charged in his property has had a hearing, or an opportunity for one provided by the statute.” And it was also said in that case that whether a review is or is not given upon any of these questions of fact, (that is, as to benefits and the amounts of the assessments,) was a mere question of legislative discretion, so long as the tribunal created by the State had power to decide them, and the opportunity for a hearing was given by the act, and that it was not constitutionally necessary in such case to give a rehearing or an appeal. In Spring Valley Water Works v. Schottler, 110 U. S. 347, where the law provided for the fixing of water rates by a board of supervisors after a hearing, and without any right of review by any court, it was stated (at page 354) by Mr. Chief Justice Waite, giving the opinion of the court: “Like every other tribunal established by the legislature for such a purpose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted for their official deter- HIBBEN v. SMITH. 323 191 U. S. Opinion of the Court. mination. It is not to be presumed that they will act otherwise than according to this rule.” See Spencer v. Merchant, 125 U. S. 345. The sole remaining question arises upon the allegations contained in the answer and cross complaint, that all the members of the board of trustees were residents of the town and taxpayers therein, and that two members of the board were owners of lots abutting upon the improvement, and assessed therefor at the same rate as the others. The objection to the tribunal constituted by the legislature of Indiana, which the plaintiff in error makes in this particular instance, is that it results in making a person a judge in his own case, and that hence any judgment of a tribunal thus constituted is absolutely void, and may be attacked, as it is attacked in this case, collaterally. It is said that to impose an assessment, which is the same as a judgment under such circumstances is to take the lot owner’s property without due process of law, and violates thereby the Federal Constitution. We think the first objection, that all of the members of the board of trustees were residents of and taxpayers in the town, is wholly unimportant. We have not the slightest doubt of the power of a legislature of a State, unless hampered by some special constitutional provision, to create a tribunal in a city or town, such as the common council or board of trustees, to make an assessment, and that such assessment would be valid, notwithstanding the fact that every member of the board was a taxpayer of the city or the town. It is a matter of legislative discretion as to how such a board shall be constituted, and we hazard nothing in saying that it is quite common throughout the country for the legislatures of the States to create a tribunal for levying assessments for local improvements in a manner precisely like the case in question. It is not at all analogous, even m principle, to a judge of a court acting in a case in which he is personally interested. To say that no one who was a taxpayer in a city or town could act in imposing an assessment upon property therein is 324 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. to say that the legislature is wholly without power, by reason of the Federal Constitution, to constitute a tribunal to make an assessment where such tribunal is composed of taxpayers in the city or town. This we do not believe. It must frequently happen that a board of assessors for a city, to assess all property for general taxation, will be composed of men who themselves own property in the city and assess the same for purposes of such taxation. Can there be any doubt of the validity of the general assessments under such circumstances? And would not the assessment for taxation of the property of the individual members of the board of assessors, made by the board, be valid if authorized by the statute? See Brown v. Massachusetts, 144 U. S. 573, citing 147 Massachusetts, 585, 591; 150 Massachusetts, 334, 343. Then as to the averment that there were two members of the board who were owners of lots abutting upon the improvement and were assessed therefor at the same rate as other lot owners. Although it might have been more seemly for those two members, if they recollected the fact of such ownership, to have refused to act in the matter, yet there is nothing to show that their attention was called to the fact, nor does it appear that any objection was made by plaintiff in error or any one else to their acting, nor that the plaintiff in error was ignorant of their interest at the time when the proceedings were commenced. The state court has held that an assessment for improvements under this statute of Indiana is in the nature of a judgment, and the fact that members of the board who levied the assessment owned property, as stated, would not render the judgment void, but at most, voidable, and that it could not be attacked collaterally. The cases of Bradley v. City of Frankfort, 99 Indiana, 417; Jackson v. Smith, 120 Indiana, 520, and Board of Commissioners v. Justice et al., 133 Indiana, 89, are referred to. Whether a judgment obtained in a case like this, where two members of a general board created by statute for the purpose of making it, had some interest in some of the property subject HIBBEN v. SMITH. 325 191 U. S. Opinion of the Court. to the assessment, was a void or voidable judgment, is a proper question for the state court to decide. A state court has the right to place its own construction upon its own judgments, and where, as in a case like this, it holds that the judgment is not void and that it cannot be attacked collaterally, we ought to follow that determination. Newport Light Co. v. Newport, 151 U. S. 527, 539. In Lent v. Tillson, 140 U. S. 316, which was an assessment case, it was stated by Mr. Justice Harlan, in delivering the opinion of the court, (p. 333) as follows: “Other objections have been urged by the plaintiffs which we do not deem it necessary to consider. For instance, it is said that the mayor of the city of San Francisco, one of the Board of Commissioners, was himself the owner of a lot on Dupont street, and, for that reason, was incompetent to act as one of the board of street commissioners. ... In respect to all these and like objections, it is sufficient to say that they do not necessarily involve any question of a Federal nature, and so far as this court is concerned, are concluded by the decision of the Supreme Court of California.” The provisions of tjie Fourteenth Amendment do not cover such an objection as is now under consideration. The general system of procedure for the levying and collection of taxes which is established in this country is, within the meaning of the Constitution, due process of law. Kelly v. Pittsburgh, 104 U. S. 78. A provision made by the legislature of a State in relation to the manner of levying an assessment for a local improvement is within this principle a proceeding for the levying and collection of taxes, and unless it be in violation of some particular provision of the Federal Constitution, it will be upheld in this court. The Fourteenth Amendment, it has been held, legitimately operates to extend to the citizens and residents of the States the same protection against arbitrary state legislation, affecting life, liberty and property, as is offered by the Fifth Amendment against similar legislation by Congress; but that the Federal courts ought not to interfere when what 326 OCTOBER TERM, 1903. Syllabus. 191 U. S. is complained of amounts to the enforcement of the laws of a State applicable to all persons in like circumstances and conditions, and that the Federal courts should not interfere unless there is some abuse of law amounting to confiscation of property or a deprivation of personal rights, such as existed in the case of Norwood v. Baker, 172 U. S. 269. These principles have been reiterated in a series of cases reported in 181 U. S., commencing with French v. Barber As-phalt Paving Co., at page 324 of that volume. The facts contained in the objection now under discussion do not, in our judgment, constitute any violation of the Federal Constitution or result in the taking of the property of the plaintiff in error without due process of law, as that term is understood, when used in the Constitution of the United States. We see no error in the record in this case which we can review, and the judgment of the Supreme Court of Indiana is Affirmed. Mr. Justice White concurred in the result. CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. TENNESSEE. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 67. Submitted November 10,1903.—Decided November 30,1903. Where it appears by an examination of the entire charge to the jury that the court understood the true rule as to defendant’s liability and the jury were informed of the limitations thereon, no exceptions being taken except to a single detached remark, and no request being made to the court to restate the rule with his attention called to the defective portion of his charge, the judgment will not be reversed because in certain detached and incidental remarks made in regard to defendant’s liability the court failed to state the proper limitation of liability, it also appearing that the remarks were used under such circumstances as made it absolutely certain that the jury was not misled thereby. CHOCTAW, OKLAHOMA &c. R. R. CO. v. TENNESSEE. 327 191 U. S. Statement of the Case. The defendant in error commenced this action against the railroad company, plaintiff in error, in the Pulaski Circuit Court in the State of Arkansas, to recover damages for personal injuries sustained by him by reason of the alleged negligence of the company. He alleged in his complaint that on February 6, 1900, while engaged as head brakeman on a freight train of the defendant company, and while in the discharge of his duty as such, in the town of Argenta, near Little Rock, Arkansas, he attempted to jump upon the pilot of the engine of the train of which he was head brakeman, at a time when the engine was proceeding very slowly (about four miles an hour) in the freight yards. That in attempting to jump upon the pilot he stepped on an iron stirrup or step on the pilot or “cow-catcher” of the engine, and where in the performance of his duty he was accustomed to step, and by reason of its being in a weak and unstable condition it gave way and precipitated him to the ground, where he became entangled in the ties of the railroad track and the train ran over his left leg and bruised and mangled the same so that he was compelled to have it amputated near the knee. He alleged that the defendant was negligent in the construction of the step and was negligent in permitting it to stay in a faulty and infirm condition, and the condition of the step was unknown to the plaintiff; that he might have escaped uninjured but for the negligent construction of the track, the ties of which stood up above the ground, so that he was unable to get his foot out in time to prevent the engine from running over his leg and crushing it. The defendant is a corporation organized and incorporated under an act of Congress, and on that ground removed the case into the United States Circuit Court in Arkansas, and thereafter served its answer to the complaint. It denied all negligence, and alleged that the plaintiff was attempting to step upon the front end of the engine, which was unnecessary and which was careless and improper on his part, and that he was not required in the discharge of his duty, nor was it necessary for him to attempt to so ride, and in attempting to do 328 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. so he was violating the rules of the company. It denied that the step on the pilot was in a weak and unstable condition or that it gave way and thereby precipitated the plaintiff to the ground, and denied that the condition of the step had anything to do with thte precipitation of the plaintiff to the ground, which resulted in his injury, and it denied that the condition of the step was unknown to the plaintiff. Upon these issues the case came to trial and resulted in a verdict for the plaintiff, which, upon appeal to the Circuit Court of Appeals, was affirmed, 116 Fed. Rep. 23, and the railroad company then sued out this writ of error. Mr. Edward B. Peirce for plaintiff in error. Mr. John W. Blackwood for defendant in error. Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. This is quite a simple case, although counsel on both sides have exhibited very great industry in presenting in their briefs in the greatest detail the substance of all the evidence that was \ given upon the trial. After the evidence was in a motion was made on the part of the defendant company that the jury should be instructed to find a verdict for the defendant, for the reason that there was not sufficient evidence to sustain a verdict for the plaintiff. The denial of this motion brings up the question whether there was sufficient evidence upon which to base a recovery, and it is upon that question that the briefs of counsel have been so full. It is wholly unnecessary to follow counsel in their minute details of this evidence. It is sufficient for us to say that it tended to show the following among other facts: He was the head brakeman of the train, and as such his particular position, when running into freight yards like the one at Argenta, was on the front of the engine to enable him CHOCTAW, OKLAHOMA &c. R. R. CO. v. TENNESSEE. 329 191 U. S. Opinion of the Court. to attend to the switches promptly, as they were encountered, and to prevent the danger of running off the track; that the only rule of the company which was promulgated and which he ever saw in regard to the matter of riding on the pilot of the engine was one warning the employés not to jump on or off an engine when it was running at a “high rate of speed.” The plaintiff said that he had never received instructions not to ride on the front end of the engine, but on the contrary had often been commanded by conductors to do so; that on the occasion of the accident the engine was moving very slowly, not more than four miles an hour, and that when the plaintiff attempted to board the pilot of the engine and received the injury complained of he was discharging his duty in the proper and customary manner of a head brakeman under like circumstances. The accident occurred about ten o’clock on a dark night, and the plaintiff carried a lantern to enable him to see to properly discharge his duties in regard to switches; the pilots of freight engines are provided with a step or stirrup on which to place the foot, and where it is customary for the head brake-man to stand when coming into the freight yard under the circumstances detailed, and the engine in question had such a step or stirrup. When the plaintiff attempted on this occasion, after having attended to one of the switches, to get on the engine, then moving about four miles an hour, he placed his foot on the step mentioned, and it gave way or went down under him, and his foot came to the ground under one of the ties, the space between the ties not being filled in, and he was unable to get it out in time to prevent being run over. This step or stirrup had been in a defective condition for some time, and it was so loose three or four days prior to the accident that a witness and employé of the defendant had at that time warned a fellow brakeman not to step on it because of the condition it was then in. The plaintiff had no knowledge that the step was out of repair or defective before the accident occurred. This freight yard where the accident occurred had 330 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. been constructed a few months before and the company had but just commenced to use it in which to park and make up its trains; that the plaintiff, on account of some physical disability keeping him off the road for a short period before the accident, had run into this yard only once or twice before the accident occurred, and was not very familiar with its condition at the time in question. He had never been on track No. 3, where he was hurt, until the evening of the accident, and he had no information concerning the condition of that track prior to being injured. The plaintiff testified— “When I stepped on the engine, this step was on the pilot about as wide as my hand. I stepped up on it with the hollow of my foot and leaned over to catch hold of the top of the pilot and my foot went down with the step, and I hallooed as soon as it went down and fell, and I couldn’t get my foot out and the pilot run over my leg. My leg got in between the ties and I pulled with all my might to get it out, but I seen I couldn’t get it out and just give up and let it go. My foot got hung between the ties, between the bottom of the ties, and held it fast. ... I hallooed as loud as I could to make the engineer hear me, but he didn’t see me. He must have felt that the wheel of the engine hit something because he stopped the engine right where the engineer gets up into the engine. The step of the engine stopped right at me. I hallooed as loud as I could. When I got my foot caught in there the train ran over me and mashed my leg—mashed it all to pieces; broke the bone, mashed my knee cap all to pieces. I suffered just as near death as any man could suffer and not die. It wouldn t have been as hard to die.” Plaintiff testified that he thought that if the track had been filled in his foot would not have been caught and that he could have extricated himself when the stirrup on the pilot gave way. Other evidence was given on the part of plaintiff of the same general nature. On the other hand, the defendant gave evidence tending to show that although it was customary to surface up the tracks CHOCTAW, OKLAHOMA &c. R. R. CO. v. TENNESSEE. 331 191 U. S. Opinion of the Court. in depot yards by filling in between the ties, yet as this was a new yard it was in the condition in which newly constructed yards are usually left for some time to permit the water to drain off. Evidence was also given tending to show the impropriety of the plaintiff’s attempting to get on the engine while it was in motion and that it was a violation of the rules of the company. Taking all the evidence we are of opinion that there was enough to demand its submission to the jury, and if by that body found to be true, it was enough upon which to found a verdict for the plaintiff. The chief ground upon which the demand for a new trial is founded outside of the above rests upon certain portions of the charge of the court to the jury in speaking of the law relating to the responsibility of an employer to his servant to furnish proper machinery and applicances for his employé. In two or three places, in the course of his charge to the jury upon that subject, the court, in speaking of the testimony in regard to the facts occurring at the time of the accident, said that the company owed to its employés the duty of furnishing machinery in a reasonably safe condition and a reasonably safe place for the servant to work in the discharge of his duties, and a failure to do so makes the company liable in damages for any injuries sustained by the servant while in the discharge of his duties, if the servant’s own acts of negligence do not contribute to the accident. The fault found with this observation is that the court should have added that the company did not absolutely guarantee to furnish its employés a reasonably safe place to work and reasonably safe machinery with which to discharge their duties, but that it fulfilled its obligations if it observed reasonable care to furnish its. employés those reasonably safe places to work, etc. It need not be questioned that the charge of the court, without the limitation proposed, was an erroneous exposition of the law. Hough v. Railway Co., 100 U. S. 213; Union Pacific 332 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. Railway Co. v. O’Brien, 161 U. S. 451, 457, and cases cited. A careful reading of the charge, however, shows that upon the particular occasions when these remarks were made the judge was endeavoring to draw the attention of the jury more to the question whether the defendant had in fact furnished machinery in a reasonably safe condition than to the question of its obligation to use due diligence to furnish the same. An exception was taken to but one of the remarks of the court upon this particular subject, and if the defendant had felt that there was really any danger of any misunderstanding of the rule which should govern the jury, a request to the court to restate the rule, with his attention specially called to the defective portion of the charge, would without doubt have received the immediate attention of the court and obtained a charge upon the subject as requested. We say that, because in looking through this charge it is perfectly plain that the court understood the true rule that it was necessary to show that the company had been negligent in not taking reasonable precautions to furnish proper machinery and appliances in order to become liable for the injury sustained by the employe. The jury were told by the court that, in order to find the defendant liable, it must determine from the evidence whether the step or plate in front of the engine and attached to the pilot, and which plaintiff tried to step on at the time of the accident, was by reason of the defendant’s negligence insecurely fastened, and that by reason of its being insecurely fastened the plaintiff fell and was injured as alleged. The court also charged the jury that, unless it was shown by the evidence that the employer or master was guilty of negligence in its failure to provide such a safe place for the servant to perform his duties, as under like conditions others in similar businesses are in the habit of furnishing, the defendant would not be liable. He further said that it was left to the judgment of the jury to determine from the evidence whether the railroad company was guilty of negligence in allowing at that time and place the track to remain with the CHOCTAW, OKLAHOMA &c. R. R. CO. v. TENNESSEE. 333 191 U. S. Opinion of the Court. spaces between the cross ties unfilled, and that they were to consider the fact that this yard had but recently been made, and that was a pertinent fact in relation to the question of the negligence of the company. Again, the court at almost the end of his charge stated that if this plate had been properly fastened when the train left for its destination, and had been inspected at a proper and suitable time by the defendant, and was found to be in perfect condition, and that within a short time before the accident occurred something unknown or unforeseen had caused it to become loose, “Then, gentlemen of the jury, they would not be guilty of negligence, because then they would have exercised due diligence for the purpose of ascertaining whether everything was in perfect order.” And once more the court said : “Now then, that you are to consider: “If you find that it has exercised due diligence, such as any ordinary reasonable man would exercise in matters of that kind, then it would not be liable. “ But, on the other hand, if they had not, and it was loose, or if it was loose at such time that by the exercise of reasonable or ordinary diligence they could have discovered it and repaired it, and that was the cause of the accident, they have been guilty of such negligence as makes'them liable. “Of course, so far as the railroad company is concerned, it does not, in any event, become the insurer of its servants’ or employés’ safety, regardless of its own diligence; all it undertakes to do is to keep the machinery and its right of way and place where they work in good and proper order, and use such diligence as a prudent man and careful man would use. And the company is not liable for any defect of which an employé has knowledge at the time.” These observations were at the very conclusion of the charge. We think it clearly appears that the right directions were given to the jury in regard to the legal responsibility of the defendant, and that the detached and incidental remarks made 334 OCTOBER TERM, 1903. Syllabus. 191 u. S. in regard to such liability, where they failed to state the proper limitation of liability, were used under such circumstances as to make it absolutely certain that the jury were not misled thereby. Many exceptions were taken in regard to the admissibility of evidence during the trial of the cause and to the refusal of the court to charge as requested by the defendant. We have examined them all and are entirely satisfied that no error was committed by the court in the disposition it made of them. Many of the requests to charge were covered by the charge of the court actually given, and many others were but partially correct and so mingled with erroneous statements of the law as to warrant the court in rejecting them. The judgment of the Circuit Court of Appeals for the Eighth Circuit must, therefore, be Affirmed. CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. HOLLOWAY. ERROR TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 68. Submitted November 10, 1903.—Decided November 30,1903. If an employé can by the use of his eyes see that the machinery is defective he is bound by that fact, even though he has not actually observed the defect ; but a fireman who has only been six hours on an engine is not bound to have made a careful examination of the engine, in order to charge the company with negligence or to exonerate himself from contributory negligence. There is no necessity for the court to call the attention of the jury to the rule that a railroad company is only bound to exercise reasonable care to supply a reasonably safe engine, when it appears from uncontradicted evidence that the engine supplied was not equipped with brakes under circumstances which made the omission prima facie evidence of negligence. Where the company has negligently failed to equip an engine with brakes and it is derailed by striking an obstacle which was on the track without CHOCTAW, OKLAHOMA &c. R. R. CO. v. HOLLOWAY. 335 191 U. S. Opinion of the Court. negligence of the company, and there is evidence that the engine could have been stopped more quickly with than without brakes, it is for the jury to say whether there would have been an accident had the brakes been on and fit to use ; and if the obstacle caused the necessity for brakes the neglect of the company to furnish them constitutes the immediate and proximate cause of the accident rather than the existence of the obstacle. The facts are stated in the opinion. Mr. Edward B. Peirce for plaintiff in error. Mr. John W. Blackwood for defendant in error. Mr. Justice Peckham delivered the opinion of the court. Holloway, the plaintiff below, brought this action in a state court of Arkansas, against the railroad company, to recover damages for personal injuries alleged by him to have been sustained through the negligence of the company while he was in its employ and acting as fireman on one of its engines. The action was removed into the United States Circuit Court in Arkansas, on account of the company being incorporated under an act of Congress. Upon the trial the jury found a verdict for the plaintiff, and upon writ of error from the Circuit Court of Appeals the judgment entered upon the verdict was affirmed, 114 Fed. Rep. 458, and the company has brought the case here for review. The amended complaint alleged that the plaintiff was on October 27, 1900, in the employ of the defendant company as a fireman, and that on the night of October 31, 1900, while he was so engaged, the engineer of the engine on which he was employed received orders from his superior officer, directing him to back up his engine, (consisting of an engine and tank or tender,) from Brinkley east to Hulbert, a distance of about sixty miles, and that upon receiving the orders the engineer and the plaintiff requested that they be permitted to reverse or turn the engine so that the headlight would be in front and 336 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. the tender or tank in the rear, and they would thereby be enabled to run the same with greater safety, but this request was refused, and they were directed as stated; that, in obedience to the orders, they left Brinkley about 11 o’clock at night, and continued to run the engine backward until it reached a trestle about thirteen miles east of Brinkley, when they ran upon and collided with a horse upon the said trestle, without fault upon their part, and the switch engine was derailed and plaintiff caught between the tank or tender and the engine, and seriously and permanently injured. One ground upon which negligence of the defendant was founded was, as alleged in the complaint, the bad condition of the brakes on the engine, which it was alleged were not in a condition to work; that the same were out of repair, and that there were no brake shoes on the brakes of the engine, and as a consequence the engine brakes could not be worked, and therefore when the engineer discovered the horse on the track and applied the air brakes, those on the wheels of the tank or tender were successfully applied, while on account of the absence of shoe brakes on the engine, the brakes could not be worked, and the effect of applying the air brakes was to stop the tank or tender without having any effect on the engine, and the engine was therefore forced with all its weight and momentum against the tank or tender, thereby breaking the cast-iron connection between the engine and tank or tender and bringing the ends of the engine and tank close together, and as the plaintiff was attempting to escape by going out between the ends of the engine and tank he was caught between the same and thereby injured; that he had only been on the engine for a few hours and knew nothing of the dangerous condition of the engine brakes. These various allegations of the ignorance of the plaintiff and of orders given to back the engine were denied by the defendant. The company averred that the engine had no brakes whatever on it, and that the brakes on the tender or tank were in good working condition, and it denied that it was CHOCTAW, OKLAHOMA &c. R. R CO. v. HOLLOWAY. 337 191 U. S. Opinion of the Court. in anywise guilty of negligence which caused the injury. It also averred that if the defendant sustained any injury it was due to his own carelessness or negligence, and was the result of a risk assumed by him for which the defendant was not liable. The chief defence was founded on the allegation that the defendant assumed whatever risk there was in his occupation of fireman on the engine in question, and that he in fact knew perfectly well that the engine had no brakes, and that he could not but have observed that fact on a ride of fifty or sixty miles, which he had taken on the engine prior to going out on it the evening in question. The plaintiff, however, swore distinctly that he did not know of the absence of brakes on the engine. By the consent of the parties, the jury viewed the locomotive, and the court gave the jury instructions in relation to that matter, and told them that in examining the engine— “You will go inside and try to put yourselves only in the same place that the fireman would naturally occupy, and then, occupying that place, you are to determine whether the wheels of the engine on which the brakes would be can be seen from there without looking for them, while a man is employed for several hours doing work on the engine as a fireman—that is, whether he could easily see them by just keeping his eyes open.” And the court also stated: “A man cannot shut his eyes and say he don’t want to see anything which a reasonable man could not help but see if he keeps his eyes open. “Now, if for that reason—that is, if the fact that there were not any brake shoes on that engine was obvious to any reasonably prudent man who runs on it as a fireman for several hours, as the evidence shows that plaintiff did for six hours, from Hulbert to Brinkley, before he went back again before the accident happened, that is perfectly obvious to a man who is fireman and traveling for six hours, (without hunting for it,) vol. cxci—22 338 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. then the court will tell you that he had knowledge of, and ought to have known it, and he is chargeable with it as if he had known it.” Taking the whole charge together upon the subject of the knowledge by the plaintiff of the absence of brakes on the engine, we think there was no error in the judge’s charge. It amounted simply to a direction to the jury that the man was bound to use his eyes, and if by their use he could see that the machinery was defective, he was bound by that fact, even though in truth he had not observed it, but that he was not bound to make a careful examination of every particle of an engine upon which he was fireman in order to charge the defendant with negligence or to exonerate himself from the charge of contributory negligence. See Choctaw, O. & G. R. R. Co. v. McDade, ante 64. Upon the subject of the duty of the defendant to furnish safe machinery, the court said: “By the laws of the country the defendant was bound to furnish its employés working tools which were reasonably safe and a place to work in which was reasonably safe. If it does that, then it has discharged its duty, and in case of accident to one of its employés it is not liable for the injuries sustained by him.” Freed from the surrounding facts, and viewed simply as an abstract proposition, it might be maintained that the court erred in its charge that the company was bound to furnish its employés working tools which were reasonably safe and a place to work in which was reasonably safe, and when it has done that it has discharged its duty. The charge left out the condition that an employer is only bound to take ordinary and reasonable care, as applied to the circumstances under which the liability arises, to furnish reasonably safe appliances and machinery. Hough v. Railway Co., 100 U. S. 213, 218; Union Pacific Railway Co. v. O’Brien, 161 U. S. 451. But the fact that the company had failed to supply such a machine because of the absence of brakes had been fully proved by uncontradicted CHOCTAW, OKLAHOMA &c. R. R. CO. v. HOLLOWAY. 339 191 U. S. Opinion of the Court. evidence, and, indeed, was conceded by the company. The circumstances, unexplained, were such as to make the omission to furnish a brake for the engine prima facie negligence on the part of the company. It was unexplained by any evidence, and remained as a fact proving negligence. There was no occasion, therefore, to call attention to the fact that the company was only bound to exercise reasonable care to supply a reasonably safe engine, because the uncontradicted facts showed it had not furnished such an one, and there was no evidence that it had exercised ordinary or reasonable care to furnish it, but on the contrary there was evidence to show that it had not, and it was unexplained and uncontradicted. The failure of the court to call the attention of the jury to this limitation of liability was unimportant because of the evidence already given, which showed the defendant had not complied with the limitation. It is insisted, however, on the part of the defendant, that the court erred in not holding that the absence of brakes on the engine was not the proximate cause of the injury; that the presence of the horse on the trestle was the proximate cause of derailing the tender and engine, and that the company was not guilty of any negligence by reason of which the horse came upon the trestle. We think this claim is unfounded, and that the proximate cause of the injury within the meaning of the law was the absence of the brakes on the engine. At any rate, there was evidence which made it a question for the jury to say whether the accident would have happened if there had been brakes on the engine in good order and fit for use. It may be assumed that there was no negligence on the part of the defendant by reason of which the horse came upon the trestle, and that it was not, therefore, responsible for any damage of which the horse was the sole and proximate cause. e think one proximate cause of the accident was the absence of the engine brakes. The purpose of a brake is to stop the engine more promptly than can be done without it, and 340 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. if there had been a brake on the engine it would, if used, have probably prevented the accident. At any rate, there was evidence to that effect. The absence of a brake which, if present, would have prevented the accident was, therefore, a proximate cause thereof. If an obstacle on the track which necessitates the using of the brake is to be regarded as the sole proximate cause of an accident which occurs only because there was no brake on the engine, the result would be that the company would never be liable, no matter what its negligence in not providing effective brakes, so long as its own negligence did not cause the presence of the obstacle on the track. This cannot be true. The obstacle is one of the things which caused the necessity to use the brake, and it is the neglect of the company in not furnishing the brake which constitutes an immediate and prox-mate cause of the injury. The finding of the jury under the instructions of the judge must be regarded as finding that the accident would not have occurred if there had been a brake on the engine. These are the principal objections to the judgment under review. The other matters appearing in the record we have examined but do not find that they are of sufficient importance to require any further notice. The judgment of the Circuit Court of Appeals for the Eighth Circuit is, therefore, Affirmed. SHARP v. UNITED STATES. 341 191 U. S. Statement of the Case. SHARP v. UNITED STATES. ERROR TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 208. Argued October 29, 30,1903.—Decided November 30,1903. On condemnation proceedings it was not error, under the circumstances of this case, to exclude evidence offered by the owner as to offers received by him to purchase or lease the property. Evidence as to offers for real estate is entirely different from evidence as to prices offered and accepted or rejected for articles which are constantly dealt in and have a known and ready sale in the markets and exchanges. Where the government condemns part of a parcel of land the damage to the remainder of that parcel arising from the probable use which the government will make of the part taken is a proper subject of award, but where the entire parcel is taken the owner cannot recover for prospective damages, owing to such probable use, to separate and adjoining parcels owned by him. Where all the circumstances as to value, including prospective enhancement if projected railroads and trolleys were built, are left to the jury, which was also permitted to consider damages to adjoining parcels if by reason of the parcel taken, they were made too small to work profitably, this court will not reverse on the ground that the jury was not properly charged as to questions of value. Where on condemnation proceedings, under the practice in New Jersey, after a trial in the District Court there is a new trial in the Circuit Court with a jury, the trial is de novo and the only testimony to be considered is that received on the second trial supplemented by the personal view of the premises by the jury. The plaintiff in error has sued out this writ for the purpose of reviewing a judgment of the United States Circuit Court of Appeals for the Third Circuit, which affirmed a judgment of the District Court of New Jersey, awarding damages to plaintiff in error for the taking of certain property of his on the Delaware River, near Fort Mott, in that State. The award of the jury was, in the opinion of the plaintiff in error, entirely inadequate as just compensation to him as the owner of the land for its taking by the government. Pursuant to an act of Congress, approved August 18,1890, 26 Stat. 315, making appropriations for fortifications and 342 OCTOBER TERM, 1903. 191 U. S. Statement of the Case. other works of defence, and, also, under other acts of Congress and an enabling act of the State of New Jersey, the United States district attorney for that State commenced these condemnation proceedings. At the time of their commencement the plaintiff in error was the owner of three separate and independent, although adjoining, farms or tracts of land, known respectively as the “Dunham,” the “Gibbons” and the “White” farms. It is the Gibbons farm which is taken by these proceedings. Under the New Jersey practice in condemnation matters, the United States District Court for the District of New Jersey duly appointed three commissioners to appraise the value of the land in question, which they did, and made their report July 16, 1900, in which they reported that they had appraised the value of the 41.75 acres of land to be taken at the sum of $500 per acre, or a total sum of $20,875, and they fixed the damages sustained by reason of the taking of that land for the purposes stated, to the remaining tracts of land, at the sum of $12,953. An appeal from the award of the commissioners was duly taken in behalf of the United States to the United States Court for the District of New Jersey, and in accordance with the practice an issue was framed to be tried before the court and jury as a proceeding de novo. The issue as presented for trial was “Whether the sum of $500 per acre, in all, the sum of $20,875, is a just and equitable estimate or appraisement of the value of the said 41.75 acres of land required to be taken for the purposes aforesaid, and whether the damages sustained by reason of the taking of the said 41.75 acres, by the United States for the purposes aforesaid, to the remainder of the tracts of land from which the above-mentioned tract is taken, and its issues, and which the parties in interest will sustain by reason of the premises, amount to the sum of $12,953, and if not, what is a just and equitable estimate or appraisement of the value of same, and an assessment of damages to be paid by the said the United States of America, for such lands or minerals and damages aforesaid? ” SHARP v. UNITED STATES. 343 191 U. S. Argument for Plaintiff in Error. It was also ordered that a jury should be struck and a view of the premises and property described in the report of the commissioners and in the petition should be had by the jury. This was done and a trial subsequently had. Testimony was taken upon the trial, and by consent of counsel it was agreed that the jury might bring in a verdict stating such a lump sum for the value of the lands and the damages to the adjacent property, as they thought was fairly proven from the testimony produced before them. The jury found and assessed the value of the lands and the damages sustained at the sum of $12,000 to be paid the plaintiff in error by the United States. Judgment having been duly entered upon the award of the jury an appeal was taken to the Circuit Court of Appeals, where the judgment was affirmed, 112 Fed. Rep. 893, and the case is now before "us on writ of error sued out by the owner of the land. Mr. David J. Pancoast for plaintiff in error: On the trial counsel offered, and had a right to prove that the taking of the land and its use for military purposes would directly injure the remaining land of the claimant. U. S. Const. Art. V, amendts.; and similar provisions in Const, of N. J.; Act of April 2, 1873, referred to in petition; Acts of Legislature of New Jersey, April 22, 1886, p. 268, §4; April 21, 1887, p. 201, § 3; April 4, 1889, as amended by March 22, 1895, p. 452; March 17, 1891, p. 172, § 2; April 1, 1895, p. 769, § 1. All these acts give damages in addition to value of land taken. See also Cooley’s Principles Const. Law, 372; 2 Lewis Eminent Domain, 462; Currie v. R. R. Co., 23 Vroom, 392; Walker v. Old Colony Ry. Co., 103 Massachusetts, 14; Ency. of Law, 2d ed. vol. II, p. 1171; Lincoln v. Commonwealth, 164 Massachusetts, 378; City of Pasadena v. Stimson, 91 California, 259; Dodge v. Commissioners, 3 Metcalf, 382; Comstock v. Railway Co., 32 Atl. Rep. 431; Shano v. Fifth Ave. Bridge, 42 Atl. Rep. 128; Laflin v. Chicago, 43 Fed. Rep. 860; R. R. Co. v. Ball, 5 Ohio St. 576; Matter of Utica &c. R. R., 56 Barbour, 464 ; Newman v. 344 OCTOBER TERM, 1903. Argument for the United States. 191 U. S. M. E. R. Co., 118 N. Y. 623; Van Schoch v. D. & R. Canal, Spencer, 249; R. R. Co. v. Doughty, 2 Zabriskie, 495, 501; Western Pa. R. R. Co. v. Hill, 56 Pa. St. 464; Gilmore v. Pittsburg &c. R. R. Co., 104 Pa. St. 279; Omaha &c. R. R. Co. v. Beeson, 35 Nebraska, 365; Oregon &c. R. R. v. Barlow, 3 Oregon, 315; Snyder v. W. U. Tel. Co., 25 Wisconsin, 68; Little Rock &c. R. R. Co. v. Allen, 41 Arkansas, 435. Testimony as to offers received for the land should have been received. Cliquot’s Champagne, 3 Wall. 141; Whitney n. Thatcher, 117 Massachusetts, 523; Muller v. Railway Co., 83 California, 240; Harrison v. Glover, 72 N. Y. 455. Mr. Assistant Attorney General Purdy for the United States: Offers to purchase lands proved merely by the testimony of the owner are not competent and should not be received in evidence for the purpose of establishing the market value of such lands. Fowler v. Commissioners, 6 Allen, 96; Wood v. Firemen’s Ins. Co., 126 Massachusetts, 316; Winnismet Co. v. Grueby, 111 Massachusetts, 543; Davis v. Charles River Branch R. Co., 11 Cush. 506; Thompson v. Boston, 148 Massachusetts, 387; Anthony v. Railroad Co., 162 Massachusetts, 60; Cochran v. Commonwealth, 175 Massachusetts, 299; Hine v. Manhattan Ry. Co., 132 N. Y. 477; Keller v. Paine, 34 Hun, 167; Seale v. Metropolitan Ry., 15 Daly, 502; Young n. Atwood, 5 Hun, 234; Parke v. Seattle, 8 Washington, 78; Santa Anna v. Harlin, 99 California, 538, overruling Muller v. Railway Co., cited by plaintiff in error; Central Pacific R. R. Co. v. Pearson, 35 California, 247; Selma, etc., Railroad Co. v. Keith, 53 Georgia, 178; Lewis on Eminent Domain, § 446; Spring Valley W. Works v. Drinkhouse, 92 California, 528; St. Joseph and Denver City R. R-Co. v. Orr, 8 Kansas, 419, 424; Minn. &c. Co. v. Gluck, 45 Minnesota, 463; Louisville &c. R. R. Co. v. Ryn, 64 Mississippi, 399. Cases on appellant’s brief are inapplicable to this case; Hunter v. Manhattan Ry. Co., 132 N. Y. 477, distinguishes Harrison v. Glover, cited by plaintiff in error. SHARP v. UNITED STATES. 345 191 U. S. Argument for the United States. The offer of plaintiff in error to prove the probable use that the government would make of the lands sought to be taken, and the further offer to prove that the use of the land for military purposes would injure and diminish the value of his adjoining farms was properly overruled. The tract taken being a separate and independent holding, it would be improper to allow damages to the remaining and adjoining farms. Assuming that the land sought to be taken by the government is to be devoted to a perfectly harmless use, without causing any inconvenience or annoyance to neighboring land owners, to entitle an owner to recover damages to the whole tract, when a part of his lands has been taken, there must have been a unity of contiguous parcels. The land must have been together. All of it must have been used as a single tract. 10 Am. & Eng. Ency. Law, p. 1166; Keithsburg, etc., R. R. Co. v. Henry, 79 Illinois, 290; Hunter v. Wisconsin, etc., R. R. Co., 61 Iowa, 716; Hartshorn v. Burlington, etc., R. R. Co., 52 Iowa, 613; Kansas City R. R. Co. v. Merrill, 25 Kansas, 421; Cedar Rapids, etc., R. R. Co. v. Ryan, 36 Minnesota, 546; Peck v. Superior Short Line Ry. Co., 36 Minnesota, 343; Wilmes v. Minneapolis, etc., R. R. Co., 29 Minnesota, 242; Minnesota Valley R. R. Co. v. Doran, 15 Minnesota, 230; Wyandotte, etc., R. R. Co. v. Waldo, 70 Missouri, 629; Parks v. Wisconsin Central R. R. Co., 33 Wisconsin, 413; Bigelow v. West Wisconsin R. R. Co., 21 Wisconsin, 478; Lincoln v. Commonwealth, 164 Massachusetts, 368, 379. The rule for measuring damages in the State of New Jersey is that when the whole property is taken, it is its market value, and when a part only is taken, it is the difference in the value before and after such taking, to be ascertained by the use to which such untaken part can be put. Henderson v. Orange, 9 N. J. L. 71; Butler Rubber Co. v. Newark, 61 N. J. L. 32; Currie v. Waverly, etc., R. Co., 52 N. J. L. 381. The evidence as to the use by the government of the lands taken was too vague and speculative to be received. It was 346 OCTOBER TERM, 1903. Argument for the United States. 191 U. S. not founded upon any clear, certain, or avowed obnoxious uses to which the property in question was to be put. It has frequently been held in condemnation proceedings that the damages are to be assessed upon the basis that the work will be constructed and operated in a skillful and proper manner. Jones v. Chicago, etc., R. R. Co., 68 Illinois, 380; Jackson v. Portland, 63 Maine, 65; Fremont, etc., R. R. Co. v. Whalen, 11 Nebraska, 585; Seltzler v. Pennsylvania, etc., R. R. Co., 112 Pa. St. 56; Neilson v. Chicago, M. & St. P. R. Co., 58 Wisconsin, 516; Wichita & W. R. R. Co. v. Kuhn, 38 Kansas, 104; Leavenworth, etc., R. R. Co. v. Hurley, 45 Kansas, 535; Blakely v. Chicago, etc., R. R. Co., 25 Nebraska, 207; Stewart v. Rutland, 58 Vermont, 12; Lewis on Eminent Domain, vol. 2, 482, citing Union Springs v. Jones, 58 Alabama, 654; North Vernon v. Voegler, 103 Indiana, 314; Miller v. Keokuk & Des Moines Ry. Co., 63 Iowa, 680; Newgass v. St. Louis, etc., Ry. Co., 54 Arkansas, 140; Alloway v. City of Nashville, 88 Tennessee, 510; McGregor v. Equitable Gas Co., 139 Pa. St. 230; Denniston v. Philadelphia Co., 161 Pa. St. 41. The specific acts of users of the lands complained of not being actionable at common law if done by a neighboring landowner, damages could not be predicated upon such acts in these proceedings instituted by the government. Lincoln v. Commonwealth, 164 Massachusetts, 368; Titus v. Boston, 161 Massachusetts, 209; Bacon v. Boston, 154 Massachusetts, 100,102; Caledonian Railway v. Ogilvy, 2 Macq. 229, 235; Ricket v. Metropolitan Railway, L. R. 2 H. L. 175, 187; Burwell v. Commissioners, 93 N. C. 73; Wehn v. Commissioners, 5 Nebraska, 494; Adams v. R. R. Co., 39 Minnesota, 286; Cameron v. Chicago &c. R. R-Co., 42 Minnesota, 75. Evidence of such acts of user by the government would not establish a taking of private property for public use within the meaning of the Constitution. Kaje v. Chicago, etc., R. Co., 57 Minnesota, 422; Beseman v. Pennsylvania R. R. Co., 50 N. J. L. 235, 242; Decker v. Evansville, etc., Ry. Co., 133 Indiana, 493, Dunsmore v. Central Iowa Ry. Co., 72 Iowa, 182; Werges v. St. SHARP v. UNITED STATES. 347 191 U. S. Argument for the United States. Louis, etc., Ry. Co., 35 La. Ann. 641; Baltimore & Potomac Ry. Co. v. Fifth Baptist Church, 108 U. S. 317, 331. Although this court sustained an award for damages in United States v. Lynah, 188 U. S. 445, 472, it distinctly recognized in that case that there were many cases of injury resulting to adjacent property where no remedy exists against the United States. Transportation Co. v. Chicago, 99 U. S. 635; Pumpelly n. Green Bay Co., 13 Wall. 166; Eaton v. R. R. Co., 51 N. H. 504, 642; Chicago v. Taylor, 125 U. S. 161; Montana Co. v. St. Louis &c. Co., 152 U. S. 160; Gibson v. United States, 166 U. S. 269; Marchant v. Pennsylvania Railroad, 153 U. S. 380; Meyer n. Richmond, 172 U. S. 82; Mills v. United States, 46 Fed. Rep. 738; Baltimore & Potomac R. Co. v. Fifth Baptist Church, 105 U. S. 328. The rule of damages in condemnation proceedings to adjacent and independent tracts of land is that where the government condemns a tract of land in its entirety, the owners of adjacent and independent tracts cannot be permitted to make proof of any damage or depreciation in value of their lands, no part of which is taken, either by reason of the taking or on account of the future uses to which the lands taken may be put by the government. If, however, in the future the government should devote the land to certain obnoxious uses, or to such a purpose as would result in the actual taking of the lands the landowner would have his remedy when such injury actually occurred. The proceedings before the District Court was a trial de novo, upon which the findings and awards of the commissioners could not properly be considered by the jury in determining the amount of damages. The appeal supersedes the award of the commissioners. Metier v. E. & A. R. R. Co., 37 N. J. L. 223; Henderson v. Orange City, 9 N. J. L. 71; Browning v. Camden & Woodbury R. Co., 3 Gr. Ch. 47; Johnson v. Baltimore & N. Y. R. Co., 45 N. J. Eq. 454; Waite v. Port Reading R. Co., 48 N. J. Eq. 346; Ringle v. Freeholders, 56 N. J. L. 661; Coyner v. Boyd, 55 Indiana, 166; McKinsey v. Bowman, 58 Indiana, 88; 348 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. Bohr v. Neuenschwander, 120 Indiana, 449; Covey v. Swagger, 74 Indiana, 211; Winklemans v. Des Moines, etc., Ry. Co., 62 Iowa, 11; Seefeld v. Chicago Ry. Co., 67 Wisconsin, 96; Chicago Ry. Co. v. Broquit, 47 Kansas, 571; Daigneault v. Woonsocket, 18 R. I. 378. Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. The questions to be reviewed by this court arise upon exceptions appearing in the record taken upon the decisions of the court in relation to the admissibility of evidence, and also to the charge of the court as to the proper items to be considered by the jury in arriving at their verdict. The errors assigned and upon which the argument was had in the Circuit Court of Appeals were twelve in number. They are in substance the same here. The first seven refer to the rejection of evidence in regard to offers to purchase the lands from the plaintiff in error. It was held by the trial court, in response to the proposal to give such evidence, that the plaintiff in error could not testify to different offers he had received to purchase the property for hotel, residential or amusement purposes, or for a ferry, or a railroad terminal, or to lease the property for hotel purposes. Upon principle, we think the trial court was right in rejecting the evidence. It is, at most, a species of indirect evidence of the opinion of the person making such offer as to the value of the land. He may have so slight a knowledge on the subject as to render his opinion of no value, and inadmissible for that reason. He may have wanted the land for some particular purpose disconnected from its value. Pure speculation may have induced it, a willingness to take chances that some new use of the land might in the end prove profitable. There is no opportunity to cross-examine the person making the offer, to show these various facts. Again, it is of a nature entirely too uncertain, shadowy and speculative to form any solid SHARP v. UNITED STATES. 349 191 U. S. Opinion of the Court. foundation for determining the value of the land which is sought to be taken in condemnation proceedings. If the offer were admissible, not only is it almost impossible to prove (if it exist) the lack of good faith in the person making the offer, but the circumstances of the. parties at the time the offer was made as bearing upon the value of such offer may be very difficult, if not almost impossible, to show. To be of the slightest value as evidence in any court, an offer must, of course, be an honest offer, made by an individual capable of forming a fair and intelligent judgment*, really desirous of purchasing, entirely able to do so, and to give the amount of money mentioned in the offer, for otherwise the offer would be but a vain thing. Whether the owner himself, while declining the offer, really believed in the good faith of the party making it and in his ability and desire to pay the amount offered, if such offer should be accepted, or whether the offer was regarded as a mere idle remark, not intended for acceptance, would also be material upon the question of the bona fides of the refusal. Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side, as to cast no light upon the question of value. It is frequently very difficult to show precisely the situation under which these offers were made. In our judgment they do not tend to show value, and they are unsatisfactory, easy of fabrication and even dangerous in their character as evidence upon this subject. Especially is this the case when the offers are proved only by the party to whom they are alleged to have been made, and not by the party making them. There is no chance to cross-examine as to the circumstances of the party making the offer in regard to good faith, etc. Evidence of this character is entirely different from evidence as to the price offered and accepted or rejected for articles which have a known and ready sale in the market. The price at the stock exchange of shares of stock in corporations which are there offered for sale or dealt in is some evidence of the value of such shares. So 350 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S evidence of prices current among dealers in those commodities which are the subject of frequent sales by them would also be proper to show value. This evidence is unlike that of offers to purchase real estate, and affords no ground for the admissibility of the latter. A reference to the authorities shows them to be almost unanimous against receiving evidence of this kind. Counsel have cited many cases on this subject and they are contained in the margin.1 Most of them are clearly against the admissibility of the evidence, while some, which at first sight might be regarded as exceptional, will be found upon closer examination to recognize the general rule as already stated. The next four assignments of error relate to the proper items of damage to be included in the award. The owner offered to prove the probable use the government would make of the land for military purposes for which it was taken; also, that the use of the land for such military purposes would damage and depreciate the remaining and adjoining land; also, that if the land to be taken was used by the government for military purposes it would endanger the adjoining land of the owner for a long distance and make the removal of his buildings necessary. These offers were rejected, and the court held that the jury should not take into account prospective damages to the remaining and adjoining land of the owner arising from the future use of the land sought to be x Fowler v. County Commissioners, 6 Allen, 92, 96; Wood v. Firemen’s Fire Insurance Co., 126 Mass. 316, 319; Thompson v. Boston, 148 Mass. 387; Anthony v. Railroad Company, 162 Mass. 60; Cochrane v. Commonwealth, 175 Mass. 299; Hinev. Manhattan Railway Company, 132 N. Y. 477; Keller v. Paine, 34 Hun, 167 ; Lawrence v. Metropolitan Elevated Railway, 15 Daly, 502 ; Young v. Atwood, 5 Hun, 234 ; Parke v. City of Seattle, 8 Wash. 78 , Santa Ana v. Harlin, 99 Cal. 538 ; St. Joseph & Denver City R. R- v- Orr, 8 Kansas, 419, 424 ; Minnesota &c. Railway v. Gluek, 45 Minn. 463 ; Louisville &c. R. R. v. Ryan, 64 Miss. 399. As distinguished from the general rule, see Whitney v. Thacher, 117 Mass. 523 ; Cliquot’s Champagne, 3 Wall. 114, 141 ; Chaffee v. United States, 18 Wall. 516, 542, explaining Cliquot’s Champagne ; Muller v. Railway Company, 83 Cal. 240 ; overruled by Santa Ana v. Harlin, 99 Cal. 538 ; Harrison v. Glover, 72 N. Y. 451. SHARP v. UNITED STATES. 351 191 U. S. Opinion of the Court. taken from him for military purposes, although at the same time the court charged, if the evidence showed that by reason of the severance of the farms those which remained were made so small that it would be unprofitable to work them, whatever damage resulted therefrom should be given the owner. The question in this case arises in a somewhat peculiar way. Under the procedure provided for in the statute of New Jersey upon appeal to the court from the award made by the commissioners there is to be a new trial of the question as to the amount of damages to which the land owner shall be entitled, and that trial is to be had before a jury under the direction of the judge. For this purpose an issue is to be prepared by the judge in the presence of counsel for trial before the jury. Pursuant to that practice the court did present to the jury an issue for it to decide, which is set forth in the foregoing statement of facts. Counsel for the owner, therefore, contend that, under that issue, the court should have received all evidence offered by the land owner tending to show the damages sustained by him not only by the taking of the land in question, but also damages to the remaining tracts of land by reason of the use which the government would probably make of the land taken. We are of opinion that the court was not bound to receive evidence upon any subject which it held to be not a proper item to make up the award to the owner. Evidence of some damage to the remaining farms was permitted, as already seen, which might arise by reason of those farms being made so small that they might not be profitably worked, but what particular items of damage were proper to be considered in relation to the remaining tracts were questions primarily for the trial judge, subject to review in due course of procedure. The important question is as to the admissibility of evidence of damages to the remaining lands of the owner which would probably flow from any particular and probable use by the government of the land to be taken. It is said by the plaintiff in error that just compensation consists not only in an award of the value of the lands which are taken, but also of 352 OCTOBER PERM, 1903. 191 U. S. Opinion of the Court. any damage that may result to the portion of the tract which remains, on account of such taking and on account of the uses to which the land taken may, or probably, will be put, and he cites many cases to show the correctness of the rule which he asserts. Its correctness may be conceded, but what we have to decide is whether the facts in this case bring it within the rule itself. We must see, therefore, what those facts are in order to intelligently determine the applicability of the rule asserted by the plaintiff in error. It appears that long before the commencement of these proceedings there was a government reservation at this point on the Delaware River, upon which Fort Mott had been erected. This reservation had a frontage on that river, and ran back quite a number of feet, in some places nearly two thousand. Permanent fortifications had already been erected, and placements for heavy ordnance already built on this reservation, together with magazines and other appurtenances for the firing of large guns. The particular tract to be taken, namely, all of the Gibbons farm of 41.75 acres, lies on parts of three sides of the government reservation, and a portion of it fronts on the Delaware River, the same as the reservation itself. It was purchased in 1891 for $6000. The Dunham farm, of eighty acres, was purchased in 1880 for $5800, by the wife of, and subsequently conveyed by her to, the plaintiff in error; the White farm, also of eighty acres, was purchased in 1899, a little over a month before the commencement of these proceedings for $5200. These three tracts of adjoining land, one of which only was taken, thus appear to have come to the present owner by three separate titles at three distinct times, running over a period of about twenty years. The evidence returned in the bill of exceptions, which does not purport to contain all the evidence given on the trial, does not show very clearly the exact condition of these various tracts at the time of their purchase by the plaintiff in error, but the judge, in his charge to the jury, evidently referred to evidence on this subject SHARP v. UNITED STATES. 353 191 U. S. Opinion of the Court. which does not appear in the bill, and was not corrected by counsel, and no exception was taken to the statement. We may, therefore, properly regard his references to the testimony actually given, but part of which does not appear, as correct recitals of the same. The judge stated that the Dunham farm, which adjoins the one taken, has eighty acres in it and 600 feet front on the river. The farm had on it a dwelling house and barns and such buildings as ordinarily and, perhaps, necessarily go with a farm of that size and character in that neighborhood. The land that was purchased in 1891 (the farm to be taken) then had a dwelling house, a barn, a carriage house and such outbuildings as ordinarily go with a farm of that size and character. Then the White farm consisted of eighty acres, and had a farm house on it and buildings but no water front, and one had to go through a lane of some kind to get to it. The testimony was, as stated in the judge’s charge, that these farms, including the White farm up to 1899, when it was purchased by the plaintiff in error, were always worked separately, each having its separate dwelling house and outbuildings. It must be assumed that the statements of the court were correct statements of the testimony. If not, the bill of exceptions should have shown it, and some question made at the time in regard to the erroneous character of the charge upon the facts. Error must appear in the record and cannot be presumed. The map contained in the record shows a highway between these tracts. From all the evidence which can be gathered from the record it plainly appears to us that these tracts of land were absolutely separate and independent farms, having no necessary relation with each other, and the farming on each had been conducted separately, and each farm had its own house and outbuildings. It is these facts which form the foundation of the charge of the court to the jury. We are, therefore, not only permitted but bound to regard the evidence in the record as supplemented by the statement of the evidence by the court. Upon the facts which we have detailed, we think the plain-vol. oxoi—23 354 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. tiff in error was not entitled to recover damages to the land not taken because of the probable use to which the government would put the land it proposed to take. If the remaining land had been part of the same tract which the government seeks to condemn, then the damage to the remaining portion of the tract taken, arising from the probable use thereof by the government, would be a proper subject of award in these condemnation proceedings. But the government takes the whole of one tract. If the evidence were such as to leave it a matter of some doubt whether the land owned by the plaintiff in error were one tract or separated into three separate and distinct tracts, it would be proper to leave that question to the jury, with the instruction that if they found that it was one tract, then damages might be awarded, and refused if they were separate and independent tracts. Upon this subject it was well stated by Judge Gray, delivering the opinion of the Circuit Court of Appeals, as follows: “Depreciation in the value of the residue of such a tract may properly be considered as allowable damages in adjusting the compensation to be given to the owner for the land taken. It is often difficult, when part of a tract is taken, to determine what is a distinct and independent tract; but the character of the holding, and the distinction between the residue of a tract whose integrity is destroyed by the taking and what are merely other parcels or holdings of the same owner, must be kept in mind in the practical application of the requirement to render just compensation for property taken for public uses. How it is applied must largely depend upon the facts of the particular case and the sound discretion of the court. All the testimony in this case tends to show the separateness of this tract which was the subject of the condemnation proceedings. It had never been farmed or used in connection with either of the other farms owned by the plaintiff in error. It was in no way reasonably or substantially necessary to the enjoyment of the other two tracts. Separated from it by a public road, the ‘White’ farm, so called, had only been purchased by plaintiff SHARP v. UNITED STATES. 355 191 U. S. Opinion of the Court. in error ten days before the proceedings for condemnation were begun. The authorities cited by the defendant in error fully support their contention in this respect. In Currie v. Waverly &c. R. R. Co., 23 Vroom, 392, cited by counsel for plaintiff in error for the proposition that, where a part of a tract is taken for condemnation damages to the remaining land shall be given, the court also says: ‘It is an established rule in law, in proceedings for condemnation of land, that the just compensation which the land owner is entitled to receive for his lands and damages thereto must be limited to the tract a portion of which is actually taken. The propriety of this rule is quite apparent. It is solely by virtue of his ownership of the tract invaded that the owner is entitled to incidental damages. His ownership of other lands is without legal significance.’ It is enough to say that, in our opinion, the two other farms or tracts of land owned by plaintiff in error constituted such separate and independent parcels as regards the land in question that they cannot properly be spoken of as the residue of a tract of land from which the land in question was taken.” If A own a single house in a block in a city and the government proposes to take it, is it liable to the owner of the house adjoining for a depreciation in its value by reason of the taking of the house of A for the purposes proposed? In other words, would the government be liable to the owner of land not taken for damages which were incidental because of the use intended by the government of the property it took? In such case no property of the owner of the other land is taken, and although very great damage might be inflicted upon him by the use of the property taken, has he a constitutional right of recompense? It would be within the discretion of Congress to provide that this damage should be paid to the owner of the land not taken, yet still in proceedings to condemn a property for public use on payment of “just compensation,” under the Constitution, we cannot think (in the absence of Congressional action to that effect) that the government would be liable for consequential damages sustained by a party, no portion of 356 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. whose property was taken. Although the present is not exactly such a case, yet the illustration serves to somewhat bring out the principle under review. If again, the government seek to take the property of A, consisting of a single house in a city, and he has also acquired, through a separate title and at a different time, houses adjoining, would the government be liable to A for the damage sustained by that other property on account of the use the government proposes to make of the property taken? Or again, if A purchase a block of vacant lots in a city from one source and at one time and erect a row of buildings thereon, and one building the government seeks to take, would the government be liable for the damages sustained by the other houses by reason of the uses to which it would put the building taken? These are questions involving different facts which may possibly show the various difficulties inhering in the subject under some circumstances. See Lincoln v. Commonwealth, 164 Massachusetts, 368, and Wellington v. Boston & Maine Railroad, 164 Massachusetts, 380; but in the case before us those difficulties do not, in our judgment, exist. There are here separate and distinct farms conducted under the circumstances detailed, and we cannot see that the owner of those separate farms not taken established any right of payment for damages to them arising from the use which the government intended to make of the land it took. Although denying the right to recover certain alleged damages to the land remaining, the court was not illiberal in the rules it adopted for ascertaining the compensation due for the taking of the land. It permitted the jury to consider not only the purposes to which the land taken had been put, but also, as bearing upon its value, the jury was directed to consider evidence as to the adaptability of the land for other than merely agricultural purposes; that while no merely specula tive value was to be placed on the land, this possible adaptability was to be considered, and if in the judgment of the jury it was probable that the improvements which had been spoken of in SHARP v. UNITED STATES. 357 191 U. S. Opinion of the Court. the testimony would within some reasonable time be made, that was an element which might enter into their calculation in forming their estimate of the value of the land. Therefore the jury was permitted to take into consideration the future possible building of a railroad in the neighborhood which would pass within a mile or so of Fort Mott, although no steps had yet been taken to build it; still as there had been some talk of building it, and the railroad might thereafter be built, the jury were instructed that if they thought from the evidence it would be built within a reasonable time, and that if built it would enhance the value of the property, they might take that fact into consideration as giving the then present actual value beyond that of an ordinary farm. The same instructions were given in relation to a trolley road which it was supposed might be built to run near this land. The jury was also permitted to consider the adaptability of the land for a hotel or cottage sites, and in addition, as already stated, the court charged that if the evidence showed that by reason of the severance of these farms they were made so small that it would be unprofitable to work them, the jury ought to give the damages arising therefrom. The last assignment of error arose from the charge of the judge that the jury must be satisfied as to the value and damage by the testimony that was produced before it, without reference to any testimony that was produced before the commissioners, or influenced by the commissioners’ report. This instruction we think was clearly correct. The case was tried de novo upon the appeal before the court and a jury, and the only testimony to be considered was that which was received on that trial, supplemented by the knowledge obtained by the jury from a personal view of the premises. Upon a consideration of the whole record, we think, there was no error committed upon the trial of the case before the jury, and the judgment of the Circuit Court of Appeals for the Third Circuit, affirming the judgment of the District Court for the District of New Jersey, is, therefore, Affirmed. 358 OCTOBER TERM, 1903. Statement of the Case. 191 u. S. OWENSBORO v. OWENSBORO WATERWORKS CO. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF KENTUCKY. No. 58. Argued November 4,5,1903.—Decided November 30,1903. The power to regulate water rates is a governmental power continuing in its nature which, if it can be bargained away at all, can only be by words of positive grant and if any reasonable doubt exists in regard thereto it must be resolved in favor of the existence of the power. An ordinance of a city of Kentucky before it became a city of the third class giving a water company a right to make and enforce, as part of the conditions upon which it would supply consumers, all needful rules and regulations not inconsistent with the law must be construed as to the law, as it might be altered, and when the city becomes a city of the third class and thus has power under the general law to provide the city with water by contract or by works of its own and to make regulations for the management thereof and to fix prices to consumers, an ordinance subsequently enacted during the life of the franchise fixing the price of water is not void as against the water company under the impairment of contract clause of the constitution of the United States, and in the absence of other grounds the Circuit Court of the United States has no jurisdiction of a suit in equity to restrain the enforcement of such last enacted ordinance, no question of unreasonableness of the rates being involved. This is a bill in equity to enjoin the city of Owensboro, Kentucky, from regulating the rates of the appellee, the Owensboro Waterworks Company. Lawson Reno, police judge of the city, was made a party. The Circuit Court granted a temporary injunction. Before final hearing, a motion was made before Circuit Judge Lurton to dissolve the injunction, the motion was denied on the ground of the seriousness of the questions involved, and the propriety of following the previous ruling. On final hearing, the injunction was made perpetual against the city, and the bill dismissed as to Lawson Reno. The city then took an appeal to Circuit Court of Appeals. The appeal was dismissed on the ground that the jurisdiction of the Circuit Court having been invoked OWENSBORO v. OWENSBORO WATERWORKS CO. 359 191 U. S. Statement of the Case. on a constitutional question, the appeal should have been taken directly to this court. 115 Fed. Rep. 318. The city then brought the case here from the Circuit Court. The city asserts the right to regulate the rates of the appellee under a statute of the State. The construction of the statute is contested by the appellee. The appellee urges, besides, that the statute so interpreted violates its contract with the city, and that the rates as fixed deprive it (the appellee) of its property without due process of law. These contentions make the issues between the parties. The bill is voluminous. The allegations with which we are concerned are the following: The appellant was created a city by the general assembly of Kentucky in 1866. Its charter was amended in 1882, and it continued under this charter until June, 1893, when it was made a city of the third class under the general laws of the State. These laws provided that “the repeal of any law by the provisions of this law (the charter) shall not in anywise be so construed as to affect any right or liability acquired or assumed thereunder by or on the part of the city, or any persons or body corporate. This law shall not in any manner affect any right, lien or liability accrued, established or subsisting under and by virtue of previous charters or amendments thereto, or ordinances passed thereunder. But such rights, lien or liability shall be enforced, and such action or proceeding shall be carried on in all respects as if this law (defendant city’s present charter) had not taken effect; nor shall this law be in anywise so construed as to affect the right or liability acquired or assumed under previous charters or amendments thereto, or ordinances passed thereunder on the part of the city or any person or body corporate.” The Owensboro Water Company was incorporated in 1876, and its general business was to construct and operate a waterworks plant for the purpose of supplying the city and its inhabitants with water, and it constructed and operated such works under the privilege and authority of an ordinance of the city, passed September 10,1878. The ordinance had the usual 360 191 U. S. OCTOBER TERM, 1903. Statement of the Case. provision for the use of the streets, and made the duration of the grant identical with the duration of the company. It was provided that the ordinance should be binding upon the city “as a contract in the event” of its written acceptance within ten days after its passage, and “be the measure of the rights and liabilities of the said city and of the water company.” Section 9 of the ordinance was as follows: “Sec. 9. The said company shall have the power and authority to make and enforce, as part of the condition upon which it will supply water to its consumers, all needful rules and regulations, not inconsistent with the law or provisions of this ordinance.” In June, 1889, the appellee began negotiations with the Owensboro Water Company for the purchase of its franchise and plant, and of all of its contracts with the city, but did not and would not consummate said purchase until the city agreed to grant it (appellee) a franchise and license to maintain a system of waterworks in the city for a period of twenty-five years, and issue and grant to it in its own right all of the rights and privileges which had theretofore been granted to the water company by the ordinance and contracts of September 10, 1878. On the 3d of June, 1889, the city passed an ordinance approving such purchase, and granted a franchise and license to the appellee to maintain and operate a waterworks plant for supplying the city and its inhabitants with water, and accepted the appellee as the successor of the water company to the contracts between the latter and the city. The ordinance was expressed to be in consideration “of the purchase, by the Owensboro Waterworks Company of Owensboro, Kentucky, of the waterworks of the Owensboro Water Company.” On the 10th of June, 1889, relying upon the ordinance of the 3d, the appellee consummated the purchase from the water company of its works, franchises and contracts, and received them from that company, and it “has ever since then under the orders and directions” of the city, maintained and extended its system, on account of which it has expended large OWENSBORO v. OWENSBORO WATERWORKS CO. 361 191 U. S. Statement of the Case. sums of money, and its plant is now reasonably worth not less than $250,000, and could not be constructed for less than that sum. On the 19th of March, 1900, the city passed an ordinance providing “that hereafter every person, firm, company and corporation, engaged in the business of furnishing water to consumers thereof in the city of Owensboro, shall furnish the same to consumers thereof for domestic and manufacturing purposes and uses, and for all other purposes and uses, at rates and prices not exceeding the rates and prices herein named and fixed, which rates and prices are deemed reasonable and just; that is to say, water shall be furnished to all mills, laundries, saloons, distilleries, breweries, livery stables, ice factories and manufacturing establishments, hotels, street railway companies and all factories of every kind at the following named rates.” Then followed a statement of the rates fixed, graduated according to the amount of water consumed or kind or purpose of use. And it was provided (sec. 8), “that if any person, firm, company or corporation engaged in the business of furnishing water to consumers thereof in said city of Owensboro shall demand, charge, exact or receive, directly or indirectly, of or from any consumer or consumers of water in said city, as consideration or compensation for water furnished or supplied to such consumer, any money, property or other thing of value over and above or in excess of the rates and prices for water herein named and prescribed, or shall fail or refuse for ten days, without reasonable excuse, to supply water as prescribed and required in and by section seven (7) of this ordinance; or shall fail or refuse to keep the accounts, or the books required to be kept at Owensboro, or make the reports in writing to the common council, as required by section six (6) of this ordinance, such person, firm, company or corporation so offending shall be fined, upon conviction, in a sum not less than ten dollars and not exceeding fifty dollars, for each offense.” 362 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. The ordinance in full is inserted in the margin.1 It is alleged that the enforcement of the ordinance will cause appellee irreparable injury and in what manner that will be 1 An ordinance to fix and regulate rates, prices and charges for water furnished consumers in the city of Owensboro, and for other purposes. Be it ordained by the common council of the city of Owensboro: Sec. 1. That hereafter every person, firm, company and corporation engaged in the business of furnishing water to consumers thereof in the city of Owensboro, shall furnish the same to such consumers thereof for domestic and manufacturing purposes and uses, and for all other purposes and uses, at rates and prices not exceeding the rates and prices herein named and fixed, which rates and prices are deemed reasonable and just; that is to say, water shall be furnished to all mills, laundries, saloons, distilleries, breweries, livery stables, ice factories, hotels, street railway companies, and all factories and manufacturing establishments of every kind, at the following-named rates, subject to the exceptions contained in section two (2) of this ordinance, to wit: (1) In all cases where the amount of water consumed averages two thousand gallons per day, or less, estimated by the month, ten cents per thousand gallons; (2) where the daily consumption of water averages two thousand gallons, or more, and less than four thousand gallons, estimated by the month, nine cents per thousand gallons; (3) where the daily consumption of water averages four thousand gallons, or more, and less than ten thousand gallons, estimated by the month, eight cents per thousand gallons; (4) where the daily consumption of water averages ten thousand gallons, or more, and less than fifteen thousand gallons, estimated by the month, seven cents per thousand gallons; (5) where the daily consumption of water averages fifteen thousand gallons, or more, and less than twenty-five thousand gallons, estimated by the month, five cents per thousand gallons; (6) where the daily consumption of water averages twenty-five thousand gallons, or more, and less than forty thousand gallons, estimated by the month, four cents per thousand gallons; (7) where the daily consumption of water averages forty thousand gallons, or more, estimated by the month, three and one-half cents per thousand gallons. That for the purpose of ascertaining and estimating accurately the quantity of water consumed by consumers in the classification of this section and the compensation to be paid therefor, it is hereby made the duty of the persons, firms, companies and corporations, and they shall, on request made in writing, and within thirty days after such request is made, place a water meter, in good condition and repair, in connection with the pipe or main leading into and supplying water to such consumers, and the said meter shall be kept in good repair by the person, firms, company and corporation furnishing or supplying the water to such consumers, and the said meters shall be examined and read monthly, for the purpose of ascertaining its condition and the quantity of water consumed. OWENSBORO v. OWENSBORO WATERWORKS CO. 363 191 U. S. Statement of the Case. done is detailed, and that, appellee “could not under the most prudent management, earn any per cent upon its investment, but would be compelled to operate its plant at an actual loss.” Provided, that the minimum annual rate to be paid by all consumers of water described in the classifications thereof in this section, per annum, shall be twenty-four (24) dollars; and in no case shall the consumer of water who uses or consumes, annually, two hundred and forty thousand gallons of water, or less, be charged or pay more or less than twenty-four (24) dollars per annum. Sec. 2. That water furnished by said persons, firms, companies and corporations to consumers thereof for domestic purposes and uses where no njeter has been put in or attached for ascertaining the quantity of water used, shall be furnished at rates and charges not exceeding or above the following-named rates and charges, per year, to wit: (1) For each wash stand, wherein warm and cold water, or either, is used, two dollars; (2) for each kitchen sink, wherein warm and cold water, or either, is used, two dollars; (3) for each bath tub, wherein warm and cold water, or either, is used, two dollars; (4) for each water closet and urinal, two dollars; for sprinkling premises, lawn, pavement and street in front of or adjacent to the premises, per annum, two dollars and fifty cents for the first two hundred square yards or less, one cent for each additional square yard; (6) for private dwelling per annum where only one tap or faucet is used, containing four rooms or less, excluding hallways, garrets, bath rooms, water closets, two dollars, and for each additional room fifty cents; (7) for each cow, one dollar, for each horse, one dollar; and for each carriage, buggy and spring wagon, one dollar; (8) for filling cisterns, twenty cents each thousand gallons. Sub. Sec. 2. And for furnishing water for offices, banks, stores and other places than residences (above specified in this section), the rates and charges therefor shall be at rates not exceeding or above the following rates and charges, per year, to wit: For each wash stand, wherein warm and cold water, or either, is used, three dollars; (2) for each water closet and urinal, three dollars; (3) for hydrant, three dollars; (4) for barber shops, for first chair, three dollars, for each additional chair, one dollar; (5) for blacksmiths, for first forge, two dollars, and for each additional forge, one dollar; (6) for plasterers, one-fourth of one cent per square yard; (7) for bricklayers, six cents per one thousand brick, sprinkling and laying. * Provided, that any of the consumers embraced in the classification of this section may, in lieu of the above rates, require the person, firm, company or corporation furnishing the water to the' consumer, to attach to the pipe leading into the premises of the consumer, a water meter, and it shall be the duty of the person, firm, company or corporation furnishing the water to attach the said meter within thirty days after said request is made therefor in writing, and thereafter the said consumer shall be charged, and shall 364 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. For the reasons alleged the ordinance of March 19 violates the constitution of the State of Kentucky and the Fifth and Fourteenth Amendments of the Constitution of the United pay for the water furnished at the minimum rate of twelve dollars per annum, and for all water consumed in excess of one hundred and twenty thousand gallons per annum there shall be paid ten cents for each thousand gallons; but such meters shall not be attached except by the written request of the consumer. And, provided further, that before meters are attached to or connected with the pipes or mains leading into the premises of any consumer described in the classification of this section, by the person, firm, company or corporation supplying the water, consent of such consumer shall be first obtained, and if objection shall be made by the consumer, the mayor of the city, upon complaint by the person, firm, company or corporation furnishing the water, shall summon the consumer to appear before him, and shall hear and determine the matter, and decide whether the meter shall be attached, and his decision shall be final. If said persons, firms, companies or corporations furnishing water shall attach a meter in any case to the pipe leading into any consumer’s premises, without his consent, or against his objection, and the water annually consumed shall not be as much as one hundred and twenty thousand gallons, the consumer shall pay for the water actually consumed at the rate of ten cents per thousand gallons, and no more. Sec. 3. That water rates may be collected by said persons, firms, companies and corporations from all consumers falling within the provisions of sections one and two of this ordinance who have water meters attached, monthly, quarterly, or semi-annually, at the election of said persons, firms, companies or corporations furnishing the water, but water rates shall not be collected in advance except by voluntary consent of the consumer. Water may be shut off from any consumer for non-payment of water rates, or other sufficient reason, only after ten days’ written notice served upon said consumer or his wife, in his absence from home, or in case of absence from premises of both husband and wife, then the said notice shall be delivered by depositing same in the Owensboro post office addressed to said water consumer. Sec. 4. That if any person, firm, company or corporation shall be or become a consumer of water, and shall not be included in the classification made and contained in the second section of this ordinance, the quantity of water used or consumed by such consumer shall be ascertained by meter and compensation made therefor at the rates and charges specified in the first section of this ordinance. Sec. 5. That all persons, firms, companies or corporations furnishing water to consumers in the city of Owensboro, that shall have mains, pipes and conduits in the streets, alleys and public ways of the city, shall hereafter, during the months of April, May, June, July, August, September, October, OWENSBORO v. OWENSBORO WATERWORKS CO. 365 191 U. S. Statement of the Case. States. It is also alleged, with much amplification, that the passage of the ordinance was 11 ex parte and partisan,” without deliberation or investigation or knowledge, and, besides, the November in each year, cause all water mains of said persons, firms, companies and corporations to be washed and cleaned, and for this purpose shall cause all fire hydrants to be open to their full capacity and water discharged from each for at least five minutes once in every two weeks; and during the months of December, January, February and March shall, for said purpose, cause all fire hydrants to be open to their full capacity for at least five minutes once in each and every of said months last mentioned. Sec. 6. That' hereafter all persons, firms, companies and corporations engaged in the business of furnishing water to consumers shall keep an exact, complete and true account of all its incomes, gains and receipts from all and every source whatever, in detail, giving all the items thereof, and date of receipt of the same, and an exact, complete and true account of all expenditures, showing date and amount of each and every item of expense, costs and expenditure and the whole thereof; and the books containing said accounts shall be kept at Owensboro, and shall be open at any time to inspection and examination by the common council or a committee thereof appointed for that purpose, and shall make and return to the common council, at the end of each six months hereafter, on the first day of January and July of each year, a true and complete summary of the same, which shall be verified by the oath of the president, secretary or treasurer of said persons, firms, companies or corporations furnishing water, and the said report shall be spread on the journal and filed and preserved by the city clerk in his office. Sec. 7. That it shall be the duty of any person, firm, company or corporation engaged in the business of furnishing water to consumers thereof, in the city of Owensboro, through pipes, mains or conduits laid in the streets, alleys and ways of said city, to furnish water to all persons who may make application thereof in writing, and ■within ten days after the date fixed in such written application, and who desire the same furnished in houses or places situated on any of the streets, alleys or ways or places in the city, wherein any of the said mains, pipes or conduits are located or laid, and the said person, firm, company or corporation shall put down all necessary pipes therefor, at the expense of the person, firm, company or corporation furnishing the water to the boundary line of the lot or premises of the applicant for water or consumer, and the remainder of the pipes, machinery or appliances necessary for conveying the water into the houses or upon the premises shall be borne by the said applicant or consumer of water. Sec. 8. That if any person, firm, company or corporation engaged in the business of furnishing water to consumers thereof in said city of Owensboro shall demand, charge, exact, or receive, directly or indirectly, of or from any consumer or consumers of water in said city, as consideration or compensation for water furnished or supplied to such consumer, any money, property 366 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. city had no power to pass the ordinance, and that the latter violates the contract existing between appellee and the city. It is also alleged that financial injury will result to appellee from the enforcement of the ordinance in regard to meters (sec. 2), and from the prohibition to collect rates in advance, “except by voluntary consent of the consumer.” (Sec. 3.) Prosecutions are threatened under the ordinance which will result, it is alleged, in irreparable injury to appellee, and an injunction is hence prayed against the city. A demurrer to the bill was overruled. An answer was then filed, which denied the allegations of the bill and justified the action of the city. Mr. George W. Jolly for appellant. Mr. William T. Ellis and Mr. Robert W. Bingham for appellee. Mr. W. W. Davis was on the brief. Mr. Justice McKenna, after stating the case, delivered the opinion of the court. By the act of the general assembly of Kentucky, approved June 14,1893, the appellant was made a city of the third class, and was given, as a city of that class, the following powers expressed in section 3290: “The common council of said city shall, within the limitations of the constitution of the State and this act, have power by ordinance5th, to pro-or other thing of value over and above, or in excess of the rates and prices for water herein named and prescribed; or shall fail or refuse for ten days, without reasonable excuse, to supply water as prescribed and required, in and by section seven (7) of this ordinance, or shall fail or refuse to keep the accounts, or the books required to be kept at Owensboro, or make the reports in writing to the common council, as required by section six (6) of this ordinance, such person, firm, company or corporation so offending shall be fined, upon conviction, in a sum not less than ten dollars and not exceeding fifty dollars, for each offense. Sec. 9. This ordinance shall go into full force and effect on and after the first day of April, in the year of our Lord nineteen hundred. Approved, March 21st, 1900. OWENSBORO v. OWENSBORO WATERWORKS CO. 367 191 U. S. Opinion of the Court. vide the city and the inhabitants thereof with water, light, power, heat and telephone service, by contract, or by works of its own, located either within or beyond the boundaries of the city. To make regulations for the management thereof, and to fix and regulate the prices to consumers and customers.” Under this section the city passed the ordinance which prescribes the rates and regulations complained of. The Circuit Court decided that the city was not given the power to pass the ordinance, and considered it unnecessary to pass on the other issues. The court said: “ If the city of Owensboro had no lawful power or authority to pass the ordinance at all, then the enforcement of it would clearly be a taking from the complainant of its right to certain property. First, without compensation; second, without due process of law; third, without giving to it the equal protection of the law. “This makes it necessary to inquire whether the city had the statutory power and authority to pass the ordinance complained of. It does not seem to be needful to inquire whether the state constitution gives the general assembly power to delegate authority in the premises to the city. The initial proposition is, has the legislature done so in fact, whether it had the power or not? This must depend upon the proper interpretation and construction of section 3290 of the Kentucky Statutes, . . . ” Interpreting the section the court held that the word “thereof” in the last sentence of the section had for its antecedent the words “works of its own.” Substituting these words for the word “thereof,” the sentence would read, and the city’s power would be, “to make regulations for the management of its own works, and to fix and regulate the prices to consumers and customers.” But another ambiguity appears, viz., of what is the city to fix and regulate the prices ? Certainly of something, and it would seem from the context, the same thing, of which it was to regulate the management. But this leads to an absurdity, and we inust find a purpose (antecedent) to which 368 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. both powers can refer. The city might, indeed, make regulations for the management of its works, but it could not fix and regulate the price of them to consumers and customers. Besides, we cannot conceive that an explicit grant of power was necessary to enable the city to manage its own works. The power to construct would have implied the power to manage and operate. It must not be overlooked that the section was intended to apply not only to the appellant city but to all cities of the third class, and confer power not only to provide water, but other services, and it might have seemed necessary, or at any rate prudent, to the legislature to reserve to the cities the power over the management of works constructed by private persons, and as prudent to reserve a power to fix and regulate the prices to consumers of the services afforded. It is certainly not difficult to conceive the necessity of the exercise of those powers, and if attempted to be exercised without a reservation, the cities might be met (and there are examples of this) with the contention that the power had been bartered away and was precluded by the obligation of a contract. The construction urged by appellee must, therefore, be rejected. There is a more natural one. The purpose of section 3290 was to provide the inhabitants of cities of the third class with the services mentioned—water, light, power, heat and telephone. They could be provided by the cities directly or they could be provided by private persons; but whatever way provided, the power was given to regulate the management and fix the rates of the services, and this was but the endowment of a common governmental power. It is, however, contended that the ordinance is in violation of the contracts between the city and appellee, constituted by the resolutions and ordinance of the 3d of June, 1889. The argument is that the city had entered into contracts with the Owensboro Water Company, the predecessor of appellee, to which contracts and their obligations and rights, it is contended, the appellee succeeded by assignment from the water company, with the consent and approval of the city as ex- OWENSBORO v. OWENSBORO WATERWORKS CO. 369 191 U. S. Opinion of the Court. pressed in the resolutions and ordinance of June 3, 1889. To determine their legal effect, however, it will be necessary to consider the law which authorized them. At the time of the passage of the ordinance granting the Owensboro Water Company the right to construct waterworks the city existed and was exercising its powers under the charter of 1878, and the provision in that for supplying water to the inhabitants of the city was as follows: “To make, establish and regulate wells, cisterns, reservoirs and pumps, and to provide for the furnishing of the city and the inhabitants thereof with water and gas.” The same provision was carried into the charter of 1882, and constituted the authority of the city when the ordinance and resolutions of June, 1889, were passed. It is contended that this provision gave the city no power to fix the rates. And counsel say: “In such case and in the absence of an express contract the individual or corporation furnishing water for domestic purposes may charge whatever seems right and reasonable.” But counsel go further. They deny the right of the city to fix rates, and yet assert its power to enter into an irrevocable contract with the water company giving it such power, that is, giving it power to fix rates free from any regulation by the city, not only under any authority the city then possessed, but under any authority the city might be given by the legislature. In this contention there are several elements, but we pass their consideration, and determine what contracts, if any, the city entered into with the water company. Of course, it is implied in the grant to the company that it might charge some rates to consumers, but the question is, were those rates exempt from regulation by the city under any power it then had or might be given? An affirmative answer is contended for by the appellee under sections 9, 10 and 14 of the granting ordinance. Section 9 is the pivotal section. The others are complementary. By it the company was given “power and authority to make and enforce as a part of the condition [italics vol. cxci—24 370 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. ours] upon which it will supply water to its consumers, all needful rules and regulations [italics ours], not inconsistent with the law or provisions of this ordinance.” The section is concerned with the rules between the company and consumers alone. The company may enforce all needful rules and regulations as part of the condition upon which it will supply water. What is the other part of the condition? It must be the payment of rates, but to that part of the condition the power to make regulations does not apply. It would ignore the distinctions made by the section and give besides the words “rules and regulations” too large a meaning to make them include the power of fixing rates to consumers. They have adequate and useful signification without that. There were many things in the supply of water to consumers and in the orderly and prudent conduct of the business of the company which might need rules and regulations. And even so construed, the power conferred is not without limitation. The rules and regulations must not be inconsistent “with the law,” and this means not only as the law was when the ordinance was passed, but as the law might become. Ruggles v. Illinois, 108 U. S. 526; Railroad Commission Cases, 116 U. S. 307. In the latter cases a grant of power to the railroad company was “to make and prescribe such by-laws, rules, and regulations as they shall deem needful and proper touching ... all matters whatsoever which may appertain to the concerns of said company.” The company was also given the power “from time to time to fix, regulate, and receive the toll and charges by them to be received for transportation of persons and property on their railroad.” From this grant of power it was claimed that the company had “the right of managing its own affairs and regulating its charges for the transportation of persons and property, free of all legislative control.” Mr. Chief Justice Waite, speaking« for the court, replied: “This power of regulation is a power of government, continuing in its nature, and if it can be bargained away at all it can only be by words of positive grant, or something OWENSBORO v. OWENSBORO WATERWORKS CO. 371 191 U. S. Opinion of the Court. which is in law equivalent. If there is reasonable doubt, it must be resolved in favor of the existence of the power.” This doctrine has been affirmed numbers of times since. Freeport Water Co. v. Freeport City, 180 U. S. 587; Rogers Park Water Co. v. Fergus, 180 U. S. 624; City of Joplin v. Southwest Missouri Light Co., ante, p. 150. And the same doctrine prevails in Kentucky. Winchester &c. Turnpike Road Co. v. Croxton, 98 Kentucky, 739. From these views it follows that if the city had no power under the charters of 1866 and 1882 to fix rates, and we only assume this, not decide it, such power was conferred by section 3290 of the act of June 14, 1893, and the city is not precluded from the exercise of that power by sections 9, 10 and 14 of the original ordinance granting the Owensboro Water Company the right to construct waterworks, nor by the ordinance of June 3, 1889, approving the transfer of the rights and contracts of that company to the Owensboro Waterworks Company, the appellee herein. Nor is the city, by said ordinance, precluded from regulating the business of the appellee in the manner provided in the ordinance of March 9, 1900, which is the subject of the present controversy. It is true that it is contended that section 3 of the ordinance forbids the appellee from collecting rates in advance from all consumers. But the city does not contend for that construction. It claims only that the provisions in regard to the collection of rates in advance apply only to consumers using meters, and even as to those consumers appellee can make reasonable regulations to secure the payment of rates. The ordinance is not absolutely clear, and we may resolve its ambiguities in accordance with the concession of the city. It may be presumed that there was no intention to enact unreasonable and oppressive regulations. Two other contentions remain to be considered—one made by appellant* and the other made by the appellee. It is difficult to assign a place or purpose in the discussion of the issues to that made by the appellant. The contention is that the Owensboro Water Company had no power to transfer its prop 372 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. erty and rights and franchises to the appellee. To what consequence is the contention directed? Surely the city wants an object for its regulation. The appellee is in possession of the waterworks, and is supplying the inhabitants of the city with water. It is that service which the city djesires to regulate, and it is to “every person, firm, company and corporation” engaged in that service the ordinance of March 21, 1900, is addressed. No other person, firm or corporation than the appellee is so engaged in Owensboro, or has been so engaged for some years. We do not think that the legality of the ordinance can be questioned or measured by either the company or the city by the defects or perfections of the title of the company to its franchises or property. It may be, however, that it is not intended to press the contention so far, but to confine it to the denial of the exemption claimed by appellee as successor of the Owensboro Water Company. But, as we hold that the Owensboro Water Company had no such exemption, the contention becomes unimportant. The other contention made by appellee is that the rates fixed by the city are unreasonable. Upon this contention we shall not pass. It depends upon many questions of fact and of values to which the Circuit Court gave no attention and on which it expressed no judgment. It is better for a trial court to determine such questions in the first instance. Chicago, Milwaukee &c. Ry. v. Tompkins, 176 U. S. 167, 179. Decree of the Circuit Court is reversed, and the case remanded for further proceedings in accordance with this opinion. ANGrLO-AM. PROV. CO. v. DAVIS PROV. CO. No. 1. 373 191 U. S. Opinion of the Court. ANGLO-AMERICAN PROVISION CO. v. DAVIS PROVISION CO. No. 1. ERROR TO THE COURT OF APPEALS OF THE STATE OF NEW YORK. No. 64. Argued November 6, 9,1903.—Decided November 30,1903. Consistently with Article IV, § 1, of the Constitution of the United States a State may deny jurisdiction to the courts of the State over suits by a corporation of another State against a corporation of another State on a foreign judgment. The facts are stated in the opinion of the court. Mr. Henry Wilson Bridges for plaintiff in error. Mr. Frank E. Smith for defendant in error. Mr. Thomas F. Conway was on the brief. Mr. Justice Holmes delivered the opinion of the court. This is a writ of error to the Court of Appeals of New York. The parties are both Illinois corporations, and the plaintiff in error brought suit in the New York Supreme Court upon an Illinois judgment. By the New York Code of Civil Procedure, § 1780, it is provided that “an action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident, in one of the following cases only: . . . 3. Where the cause of action arose within the State, &c.” The other cases are immaterial. The complaint does not allege that the original cause of action arose within the State, if that would make any difference in the result. The complaint was dismissed by the Supreme Court on a demurrer setting up the above section, and the judgment was affirmed by the Appellate Division and by the Court of Appeals. 169 N. Y. 506. It was argued below that, under article IV, section 1, of the Consti- 374 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. tution of the United States, the State could not thus exclude foreign corporations from suing upon judgments obtained in another State, because to do so was to deny full faith and credit to those judgments. The decision to the contrary is the error assigned. The state court decides that the cause of action did not arise within the State in the sense of the words of the code, and, of course, we follow its construction, subject to the inquiry whether the statute as construed is consistent with the Constitution of the United States. See Northern Central Railway Co. v. Maryland, 187 U. S. 258, 267. The court also decides that the language quoted goes to the jurisdiction of the court. We are of opinion that the section of the code as construed is not unconstitutional. The precise point has not been decided by this court, but it has been laid down in cases which raise greater difficulties than the present, that this provision of the Constitution establishes a rule of evidence rather than of jurisdiction. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 291; Andrews v. Andrews, 188 U. S. 14, 36. The Constitution does not require the State of New York to give jurisdiction to the Supreme Court against its will. If the plaintiff can find a court into which it has a right to come, then the effect of the judgment is fixed by the Constitution and the act in pursuance of it which Congress has passed. Rev. Stat. § 905. But the Constitution does not require the State to provide such a court. See Missouri v. Lewis, 101 U. S. 22, 30. If the State does provide a court to which its own citizens may resort in a certain class of cases, it may be that citizens of other States of the Union also would have a right to resort to it in cases of the same class. Blake v. McClung, 172 U. S. 239, 256. But that right, even when the suit was upon a judgment of another State, would not rest on the first section of article IV, on which alone the plaintiff relies or can rely, but would depend on the second section, entitling the citizens of each State to all privileges and immunities of citizens in the several States. The plaintiff is not a citizen within this section, Paul v. Virginia, ANGLO-AM. PROV. CO. v. DAVIS PROV. CO. No. 1. 375 191 U. S. Opinion of the Court. 8 Wall. 168; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 45, and did not set it up. The general power of a State to restrict the right of a foreign corporation to sue in its courts is assumed in Bank of Augusta v. Earle, 13 Pet. 519, 589—591. As to discrimination against non-residents, see Chemung Canal Bank v. Lowery, 93 U. S. 72. The plaintiff lays great stress upon Christmas v. Russell, 5 Wall. 290. In that case suit was brought in Mississippi on a Kentucky judgment against a citizen of Mississippi upon a promissory note made in Mississippi and payable in New Orleans. A suit upon the note would have been barred by the Mississippi statute of limitations when the suit in Kentucky was begun, and the defendant set up a statute of Mississippi providing that no action should be maintained upon a judgment rendered in such circumstances without the State against a resident of the State. It was held that the statute was void, and that as the judgment was valid in Kentucky it could not be treated as invalid in Mississippi. It will be observed that this was a suit by a citizen. There was no suggestion that the statute went to the jurisdiction of the court. Obviously it did not. Indeed, the suit was brought in the United States Circuit Court. The statute made no discrimination in the right to come into court, according to the character of the plaintiff or of the cause of action, but attempted to create a defense against a plaintiff assumed to have a right to come into court and to invoke the jurisdiction. But when the plaintiff was in court and exhibited his judgment, it was too late for the State to interfere. In the case at bar the plaintiff had no right to come into the New York Supreme Court. What, if any, limits there may be to state restrictions upon the jurisdiction of state courts, when such restrictions do not encounter article IV, section 2, of the Constitution, it is unnecessary to discuss. But we think it too plain for further argument that the New York restriction upon suits by foreign corporations against foreign corporations is not affected by either section 1 or section 2 of article IV. It will be time 376 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. enough to consider the suggestion that the law is an interference with interstate commerce, within Cooper Manuf. Co. v. Ferguson, 113 U. S. 727, 734, when the record presents it. The question is one of degree, and it is obvious that the supposed interference is very remote. See Diamond Glue Co. v. United States Glue Co., 187 U. S. 611, 616. Judgment affirmed. ANGLO-AMERICAN PROVISION CO. v. DAVIS PROVISION CO. No. 2. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 63. Argued November 9,1903.—Decided November 30,1903. When the Circuit Court has decided the question of its jurisdiction and the alleged unconstitutionality of a state law in favor of the plaintiff, but has decided against him on the merits, the plaintiff cannot appeal directly to this court under the act of March 3, 1891, c. 517, § 5, for the purpose of a revision of the judgment on the merits. The facts are stated in the opinion. Mr. Henry Wilson Bridges for appellant. Mr. Frank E. Smith for appellee. Mr. Thomas F. Conway was on the brief. Mr. Justice Holmes delivered the opinion of the court. This is an appeal from a decree of the Circuit Court dismissing the plaintiff’s bill. The bill is founded on the matters stated in the preceding case. It alleges that the Davis Provision Company recovered a judgment against the plaintiff, in New York, about a year and a half after the judgment recovered by the plaintiff against the Davis Provision Company in Illinois. It shows the effort of the plaintiff to recover in New ANGLO-AM. PROV. CO. v. DAVIS PROV. CO. No. 2. 377 191 U. S. Opinion of the Court. York on the Illinois judgment, and the action of the New York courts which we have reviewed. It alleges that the two judgments arose out of the same transaction, and that by reason of the New York decision the plaintiff is unable to set off the judgment against that obtained in New York by the defendant. It sets up the unconstitutionality of the New York statute, alleges the insolvency of the Davis Provision Company, and prays for a set-off of judgments. A demurrer to the bill was overruled, 105 Fed. Rep. 536, but on final hearing the bill was dismissed on the ground that the judgment in favor of the Davis Provision Company had been assigned to the defendant Weed, for value, and under such circumstances that it was not subject to the set-off claimed. The plaintiff appealed to this court. It was admitted by the appellant, at the argument, that the plaintiff would fail on the merits if the preceding case should be decided as it has been. But we are precluded from an inquiry into the merits or even into the jurisdiction taken by the Circuit Court under Rev. Stat. §§ 1977, 1979, until the jurisdiction of this court to entertain the appeal is established. Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U. S. 379, 382. Under the act of March 3,1891, c. 517, § 5, 26 Stat. 827, this must be maintained either as a case in which the jurisdiction of the Circuit Court is in issue, or as a case in which the “law of a State is claimed to be in contravention of the Constitution of the United States.” With regard to the former ground, the Circuit Court sustained the jurisdiction, and the case is disposed of by United States v. Jahn, 155 U. S. 109, 114, 115. “If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the Circuit Court of Appeals, where, if the question of jurisdiction arises, the Circuit Court of Appeals may certify it.” With regard to the latter ground, the decision of the Circuit Court again was in favor of the plain- 378 191 U. S. OCTOBER TERM, 1903. Opinion of the Court. tiff, and it has nothing of which to complain. “Asa general rule the court will not allow a party to rely on anything as cause for reversing a judgment, which was for his advantage.” Cited from Mr. Justice Curtis’ dissent in the Dred Scott case, 19 How. 393, 566, in Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U. S. 379, 383. This remark, to be sure, is not strictly in point, as the plaintiff would not ask to have the judgment reversed on the ground that this New York law was constitutional. But it, with the quotation from United States v. Jahn, helps to indicate a principle to be applied to the construction of the words “in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.” Those words are general in form, but they do not mean that whenever a party makes a case of that sort he may appeal directly to this court whenever the decision is against him, no matter on what grounds, although his contention about the state law is sustained. If a party comes into the Circuit Court alleging that a state law is unconstitutional, and the Circuit Court decides for him on that point, the mere fact that there was such a question in the case does not authorize him to appeal to this court on grounds that otherwise would not support an appeal. See Lampasas v. Bell, 180 U. S. 276. The present case illustrates the prin-> ciple. The argument for the appellant is devoted not to any constitutional or jurisdictional point, but to an attempt to upset the decision of the Circuit Court upon the question, mainly of fact, as to the good faith, etc., of Weed in taking the assignment of the judgment. The provisions of § 5 of the act of 1891 were not intended to be made an instrument for such attempts. Appeal dismissed. WISCONSIN & MICHIGAN RY. CO. v. POWERS. 379 191 U. S. Argument for Appellant. WISCONSIN AND MICHIGAN RAILWAY CO. v. POWERS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. No. 77. Submitted November 13, 1903.—Decided November 30,1903. A provision in a general tax law that railroads thereafter building and operating a road north of a certain parallel shall be exempted from the tax for ten years, unless the gross earnings shall exceed a certain sum, is not addressed as a covenant to such railroads and does not constitute a contract with them, the obligations of which cannot be impaired consistently with the Constitution of the United States. The facts are stated in the opinion of the court. Mr. Jesse B. Barton for appellant: Under the constitution of the State of Michigan the Legislature has at all times had the power to exempt from taxation. This was expressly held by the Supreme Court of the State of Michigan in Board of Supervisors of Chippewa v. Auditor General, 65 Michigan, 408. The law which is attacked in this case was before the Supreme Court of the State of Michigan in the case of Manistee & N. E. R. R. Co. v. Comrs. of R. R., 118 Michigan, 349, in which it was attacked solely on the ground that it was a violation of the Constitutions of the United States and of the State of Michigan, prohibiting the passage of laws impairing the obligations of contracts; and while that court in that case held that the exemption was only a bounty and that it was, therefore, subject to repeal, it held that the exemption was good and that the right to it was vested until repealed and that the company was exempted from taxation until the act went into effect. Section three of article three of an act to revise “An act to revise the laws providing for the incorporations of railroad companies and to regulate the running and management and to fix the duties and liabilities of all railroad and other corpo 380 OCTOBER TERM, 1903. . Argument for Appellee. 191 U. S. rations owning or operating any railroad in this State,” as amended by the act of 1897, is in violation of the Constitution and laws of the United States relating to commerce. The act of 1897, if it repeals the act of 1893 so as to take away the right of exemption provided in the act of 1893, is in violation of the Federal and state constitutions prohibiting the impairment of the obligation of contracts. Binghamton Bridge case, 3 Wall. 51, 74; Salt Co. v. East Saginaw, 13 Wall. 377; Grand Lodge case, 166 U. S. 143; Morawetz on Private Corporations, 2d ed. § 318; Humphrey v. Pegues, 16 Wall. 249 ;E. T. V. G. R. Co. v. Pickerd, 24 Fed. Rep. 614^Berp,wan v. Building Association, 29 Minnesota, 275; Piqua v. Knoop, 16 How. 376; Corvin n. Board of Commissioners, 1 McCrary, 521 ; City Ry. Co. v. Citizen’s R. R. Co., 166 U. S. 557 ; Wellman v. C. & G. T. Ry. Co., 83 Michigan, 600; Travers v. St. P. M. & N. Ry. Co., 76 N. W. Rep. 217. The law of 1897 did not repeal the law of 1893 so as to take away from railroad corporations which had constructed their lines north of the forty-fourth parallel subsequent to the passage of the act of 1893 the right of exemption from taxation of the same for the period of ten years after construction when the gross earnings did not exceed $4,000 per mile. Com. v. P. & E. R. R., 164 Pa. St. 252-261; Detroit Street Ry. Co. v. Guthard, 16 N. W. Rep. 328; C. & O. R. R. Co. v. Miller, 114 U. S. 176; Travers County v. St. P. M. & N. Ry. Co., 76 N. W. Rep. 217; Colton v. Montpelier, 71 Vermont, 413; Binghamton Bridge case, 3 Wall. 51, 74; Sutherland on Statutory Construction, § 481 ; Endlich on Interpretation of Statutes, §§ 271 et seq. Mr. Charles A. Blair, Attorney General of the State of Michigan, and Mr. Roger Irving Wykes for appellee: The act of 1897 operated as a repeal of the act of 1893. Manistee &c. R. R. Co. v. Commissioners, 118 Michigan, 349, Northern Central v. Maryland, 187 U. S. 261; Gulf &c. Ry- C°-v. Hewes, 183 U. S. 66. The State had power to repeal the act of 1893. WISCONSIN & MICHIGAN RY. CO. v. POWERS. 381 191 U. S. Argument for Appellee. In considering whether a State has contracted away its sovereign powers, nothing is to be taken against the State by intendment. The right of taxation is a sovereign right, inherent in every sovereignty whose existence and exercise are essential to the existence and continuance of government, and although in certain instances it may be granted away, every presumption is against the grant, which is not to be extended beyond what is actually expressed. The exemption must be clearly made out, and doubt is fatal to the claim. Providence Bank v. Billings, 4 Peters, 561; Gilman v. Sheboygan, 67 U. S. 510; Ohio L. Ins. & T. Co. v. Debolt, 57 U. S. 435; Railroad Co. v. Maryland, 10 How. 393; Bank v. Skelley, 1 Black, 447; Railroad Tax, 18 Wall. 225; Railroad Co. v. Loftin, 98 U. S. 559; Newton v. Board of County Commissioners, 100 U. S. 561; Vicksburg, etc., R. Co. v. Dennis, 116 U. S. 665; Southwestern R. R. Co. v. Wright, 116 U. S. 231; Erie R. Co. v. Pennsylvania, 21 Wall. 492, 499; Memphis Gaslight Co. v. Shelby Taxing Dist., 109 U. S. 39, 401; Yazoo, etc., R. Co. v. Thomas, 132 U. S. 174, 185. The grant of exemption was a mere gratuity—a bounty— and had not the elements of, and cannot be construed as, a contract. The essential element of a binding contract, viz., a consideration, is wanting. East Saginaw Mfg. Co. v. City of East Saginaw, 19 Michigan, 259; 2 Am. Rep. 82; Welch v. Cook, 97 U. S. 541; Tucker v. Ferguson, 22 Wall. 527; Grand Lodge &c. v. New Orleans, 166 U. S. 143; West Wisconsin R. Co. v. Supervisors, 93 U. S. 595; 118 Michigan, 350; Christ Church v. Philadelphia, 24 How. 300; Salt Co. v. East Saginaw, 13 Wall. 377, 379. The constitution of the State, and the general railroad law of 1873 reserved the right of repeal and alteration and this right has been sustained by the courts. Detroit v. Detroit &c. Road Co., 43 Michigan, 140, 147; Detroit St. Ry. v. Guthard, 51 Michigan, 180, 182; Detroit v. Railway, 76 Michigan, 421, 426; Mason v. Perkins, 73 Michigan, 303, 318; Bissell v. Heath, 98 Michigan, 472, 478; Attorney General v. Looker, 111 Michigan, 382 OCTOBER TERM, 1903. Argument for Appellee. 191 U. S. 498, affirmed 179 U. S. 46; Smith v. Lake Share & M. S. Ry. Co., 114 Michigan, 460, 472. The construction by the Supreme Court of Michigan of the authority of the legislature under the reserved right to alter, amend or repeal corporate charters, contained in the state constitution, is final and conclusive, and will be followed by the Federal courts. Luther v. Barden, 1 How. 40; Bucher v. Cheshire R. Co., 125 U. S. 555; Pittsburg, etc., R. Co. v. Backus, 154 U. S. 421; McElvaine v. Brush, 142 U. S. 155; Miller's Exrs. v. Swann, 150 U. S. 132. There are numerous Federal cases upholding the right of a State to alter or amend a corporate charter where the right so to do is reserved in the Constitution, a prior general law, or the act of incorporation. The insertion of a clause reserving the right to alter, amend or repeal, indicates that such practice grew from a suggestion contained in the opinion of Mr. Justice Story in the Dartmouth College case, 4 Wheat. 712, to the effect that corporations and corporate charters might by such reservation be kept under control. Tomlinson v. Jessup, 15 Wall. 454, is a case on all fours with this. Where such right is reserved, the charter and all rights and privileges held thereunder are subject to legislative control, and may be repealed or taken away at the will of that body and the sole limitation upon the authority of the legislature, is that vested rights which can be held independently of the charter or the charter contract, cannot be interfered with. An exemption from taxation is not a vested right, and may be taken away or altered where the right to alter, amend or repeal is reserved. Spring Valley Waterworks v. Schottler, 110 U. S. 352; Hoge v. Railway Co., 99 U. S. 349; Greenwood v. Freight Co., 105 U. S. 13; Railroad Co. v. Maine, 96 U.S. 499; Louisville Water Co. v. Clark, 143 U. S. 1; Sinking Fund Cases, 99 U. S. 700; Pearsall v. Grand Northern Ry., 161 U. S. 663; Covington v. Kentucky, 173 U. S. 232; Citizens' Savings Bank V. Owensboro, 173 U. S. 636; United States v. Union Pacific Ry-, WISCONSIN & MICHIGAN RY. CO. v. POWERS. 383 191 U. S. Argument for Appellee. 160 U. S. 37, and cases cited; Miller v. Stale, 82 U. S. 478, 499; Holyoke Co. v. Lyman, 82 U. S. 500; Pennsylvania College Cases, 80 U. S. 190; Union Passenger Railway Co. v. Philadelphia, 101 U. S. 528. The right of repeal, alteration and amendment, reserved in fundamental law, is applicable to,' and gives right to withdraw, exemptions from taxation contained in acts of incorporation. Attorney General v. Preston, 56 Michigan, 177; Nelson v. McArthur, 38 Michigan, 204; Smith v. Railway Co., 114 Michigan, 472; Randall v. Schweikert, 115 Michigan, 386; Mason v. Perkins, 73 Michigan, 320; Northern Central v. Maryland, 90 Maryland, 447; >8. C., 187 U. S. 269. Immunity from taxation is not a property right. Citizens’ Savings Bank v. Owensboro, 173 U. S. 652, nor is it a franchise, Morgan v. Louisiana, 93 U. S. 221, but the exemption from taxation is a mere privilege, Wilson v. Gaines, 103 U. S. 417; Detroit Street Railway v. Guthard, 51 Michigan, 180; St. Louis & San Francisco Railway Co. v. Gill, 156 U. S. 649, which does not inhere in the property. Chesapeake & Ohio Railway v. Miller, 114 U. S. 176, 184; Louisville Water Co. v. Clark, 143 U. S. 1; Covington v. Kentucky, 173 U. S. 231, 238. It is questionable as to whether the Michigan legislature has authority to create an inviolable contract to exempt corporations from taxation. Walcott v. People, 17 Michigan, 68. Section 3 of article III of the general railroad law does not violate the commerce clause of the Federal Constitution. If the tax is not on the interstate receipts, the mode of determining the amount of such tax is immaterial, and the validity of the law fixing them is a matter of legislative policy and discretion, and is not open to criticism by the courts. Home Insurance Co. v. New York, 134 U. S. 594, 600; Maine v. Grand Trunk Railway Co., 142 U. S. 217, 228; W. U. Tel. Co. v. Massachusetts, 125 U. S. 530; Pullman P. Co. v. Pennsylvania, 141 U. S. 18; Pittsburgh &c. R. Co. v. Backus, 154 U. S. 421; W. U. Tel. Co. v. Taggart, 163 U. S. 1; Adams Bx. Co. v. Ohio, 165 U. S. 194. 384 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. Mr. Justice Holmes delivered the opinion of the court. This is an appeal from a decree of the United States Circuit Court dismissing the plaintiff’s bill on demurrer. The bill seeks to enjoin the auditor general of the State of Michigan from collecting a tax, on the ground that the law imposing the tax is contrary to the Constitution of the United States as impairing the obligation of contracts and interfering with interstate commerce. The alleged contract is contained in a law of May 27, 1893, § 3, which, after levying a specific tax on railroads, provided “that the rate of taxation fixed by this act or any other law of this State shall not apply to any railway or railroad company hereafter building and operating a line of railroad within this State north of parallel forty-four of latitude until the same has been operated for the full period of ten years, unless the gross earnings shall equal four thousand dollars per mile, except,” etc. Afterwards, on October 23, 1893, the Menominee and Northern Railroad Company was incorporated under the laws of the State, and forthwith conveyed all its property, rights and franchises to the plaintiff, a Wisconsin corporation, which is assumed to stand in the shoes of the Michigan company. The plaintiff thereupon constructed the road. This road is north of parallel forty-four, its gross earnings never have been equal to four thousand dollars per mile, and it would be entitled to the exemptions just stated if the law of 1893 still were in force. But on June 4, 1897, the State passed a law amending the act of 1893, and levying a “ specific tax upon the property and business of [every] railroad corporation operated within the State,” and enacted that “when the railroad lies partly within and partly without this State, prima facie, the gross income of said company from such road for the purposes of taxation shall be on the actual earnings of the road in Michigan, computed by adding to the income derived from the business transacted by said company entirely within this State, such proportion of the income of said company arising from the WISCONSIN & MICHIGAN RY. CO. v. POWERS. 385 191 U. S. Opinion of the Court. interstate business as the length of the road over which said interstate business is carried in this State bears to the entire length of the road over which said interstate business is carried.” This is the law which the plaintiff says is unconstitutional for the reasons above set forth. The demurrer to the bill was sustained on the ground that the act of 1893 made no valid contract of exemption from taxation, and that the act of 1897, repealing the exemption granted in 1893, was a constitutional law. The plaintiff makes a supplemental alternative argument that the later statute should not be construed to repeal the act of 1893 with regard to roads in the plaintiff’s position. If that were so the plaintiff would have no standing in this court. But the repeal is plain from the express words at the end of the section quoted from the act of 1897, repealing all acts or parts of acts contravening the provisions of that section, from the fact that it is an amendment of the section 'quoted from the act of 1893, and from the case of Manistee & Northeastern Railroad Co. v. Commissioner of Railroads, 118 Michigan, 349, 350. See also Welch v. Cook, 97 U. S. 541. On that question we follow the state court. Northern Central Railway Co. v. Maryland, 187 U. S. 258, 267. The first and main question, then, is whether the act of 1893 purported to make an irrevocable contract with such railroad as might thereafter comply with its terms. The question is pretty well answered by a series of decisions in this court. A distinction between an exemption from taxation contained in a special charter and general encouragement to all persons to engage in a certain class of enterprise, is pointed out in East Saginaw Manfg. Co. v. East Saginaw, 13 Wall. 373, (“Salt Go. v. East Saginaw”'); S. C., 19 Michigan, 259. In earlier and later cases it was mentioned that there was no counterobligation, service, or detriment incurred, that properly could be regarded as a consideration for the supposed contract. Rector, ^c"’ of Christ Church v. Philadelphia County, 24 How. 300; Tucker v. Ferguson, 22 Wall. 527; Grand Lodge, etc., of Louisiana vol. cxci—25 386 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. v. New Orleans, 166 U. S. 143. See Tomlinson v. Jesswp, 15 Wall. 454, 459. But whatever the ground, thus far attempts like the present to make a contract out of the clauses in a scheme of taxation which happen to benefit certain parties have failed. See further, Welch v. Cook, 97 U. S. 541, and Manistee & Northeastern Railroad Co. v. Commissioner of Railroads, 118 Michigan, 349, in which the state court deals with this very act. It may be that a State, by sufficient words, might bind itself ■without consideration, as a private individual may bind him-self by recognizance or by affixing a seal. A State might abolish the requirement of consideration altogether for simple contracts by private persons, and, it may be that it equally might dispense with the requirement for itself. But the presence or absence of consideration is an aid to construction in doubtful cases—a circumstance to take into account in determining whether the State has purported to bind itself irrevocably or merely has used words of prophecy, encouragement or bounty, holding out a hope but not amounting to a covenant. In the case at bar, of course the building and operating of the railroad was a sufficient detriment or change of position to constitute a consideration if the other elements were present. But the other elements are that the promise and the detriment are the conventional inducements each for the other. No matter what the actual motive may have been, by the express or implied terms of the supposed contract, the promise and the consideration must purport to be the motive each for the other, in whole or at least in part. It is not enough that the promise induces the detriment or that the detriment induces the promise if the other half is wanting. If we are to deal with this proviso in a general tax law as we should deal with an alleged simple contract, while no doubt in some cases between private persons the above distinctions have not been kept very sharply in mind, Martin v. Meles, 179 Massachusetts, 114, 117, it is clear that we should require an adequate ex- WISCONSIN & MICHIGAN RY. CO. v. POWERS. 387 191 U. S. Opinion of the Court. pression of an actual intent on the part of the State to set change of position against promise before we hold that it has parted with a great attribute of sovereignty beyond the right of change. See Vicksburg, Shreveport & Pacific Railroad v. Dennis, 116 U. S. 665, 668. Looking at the case in this way, then, we find no such adequate expression. No doubt the State expected to encourage railroad building, and the railroad builders expected the encouragement, but the two things are not set against each other in terms of bargain. See Covington v. Kentucky, 173 U. S. 231, 238, 239. But this is a somewhat narrow and technical mode of discussion for the decision of an alleged constitutional right. The broad ground in a case like this is that, in view of the subject matter, the legislature is not making promises, but framing a scheme of public revenue and public improvement. In announcing its policy and providing for carrying it out it may open a chance for benefits to those who comply with its conditions, but it does not address them, and therefor it makes no promise to them. It simply indicates a course of conduct to be pursued, until circumstances or its views of policy change. It would be quite intolerable if parties not expressly addressed were to be allowed to set up a contract on the strength of their interest in and action on the faith of a statute, merely because their interest was obvious and their action likely, on the face of the law. What we have said is enough to show that in our opinion the plaintiff never had a contract, and therefore makes it unnecessary to consider the usual power to alter, amend or repeal charters, etc., contained in the constitution of Michigan, Tomlinson v. Jessup, 15 Wall. 454; Covington v. Kentucky, 173 U- S. 231; Citizens’ Savings Bank v. Owensboro, 173 U. S. 636, or a similar power in the general railroad law of 1873, of which the above acts of 1893 and 1897 were amendments through intervening amending acts. We need say but a word in answer to the suggestion that the tax is an unconstitutional interference with interstate commerce. In form the tax is a tax on “the property and busi- 388 OCTOBER TERM, 1903. 191 U. S. Syllabus. ness of such railroad corporation operated within the State,” computed upon certain percentages of gross income. The prima facie measure of the plaintiff’s gross income is substantially that which was approved in Maine v. Grand Trunk Railway Co., 142 U. S. 217, 228. See also Western Union Telegraph Co. v. Taggart, 163 U. S. 1. Decree affirmed. Mr. Justice White, not having heard the arguments, took no part in the decision. STATE BOARD OF ASSESSORS v. COMPTOIR NATIONAL D’ESCOMPTE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. No. 157. Argued October 28, 29,1903.—Decided November 30,1903. There is no inhibition in the Federal Constitution against the right of a State to tax property in the shape of credits where the same are evidenced by notes or obligations held within the State, in the hands of an agent of the owner for the purpose of collection or renewal, with a view to new loans and carrying on such transactions as a permanent business. A foreign corporation, whose business in Louisiana was in the hands of an agent, furnished to customers sums of money and took from them collateral security; for reasons satisfactory to the parties, instead of taking the ordinary evidence of indebtedness, the customers drew checks, never intended to be paid in the ordinary way, but intended by the parties to be held as evidence of the amount of money actually loaned ; these loans could be satisfied by partial payments from time to time, interest being charged upon the outstanding amounts, and if not paid at maturity the collateral was subject to sale ; when paid, the money might be again loaned by the agent to other parties, or remitted to the home office, and the business was large and continuing in its character. Held, that as such checks were given for the purpose of evidencing interestbearing debts, they were the evidence of credit for money loaned, localized in Louisiana, protected by its laws, and properly taxable there under the provisions of the tax law of 1898 of Louisiana, which has already BOARD OF ASSESSORS v. COMPTOIR NATIONAL. 389 191 U. S. Statement of the Case. been sustained as constitutional by this court. New Orleans v. Stempel, 175 U. S. 309. The Comptoir National d’Escompte de Paris, a corporation organized under the laws of the republic of France, filed its bill in the Circuit Court of the United States for the Eastern District of Louisiana, seeking to enjoin collection of certain taxes and to cancel the assessment thereof. These taxes were undertaken to be collected under an assessment upon office furniture, $1000 ; money in possession, $20,000; “money loaned on interest, all credits, and all bills receivable for money loaned on interest or advanced for goods sold, $175,000.” There is no contest as to the taxes assessed upon the furniture or money in possession, but it is sought to enjoin the collection of the tax assessed upon the $175,000, which for the year 1891 is the sum of $4550. Complainant avers that it has no money loaned on interest, credits or bills receivable for money loaned on interest or advanced, or for goods sold within the State of Louisiana, subject to taxation; that its credits in said State are debts due to it, of which it has no legal evidence of indebtedness within the State, and that these debts have no legal situs in Louisiana, and can only be taxed at the domicile of the Comptoir in Paris. That the taxes assessed were in violation of the constitution and jurisprudence of Louisiana, and were also in violation of the Fourteenth Amendment to the Federal Constitution, inasmuch as the action complained of denied to the complainant the equal protection of the laws and deprived it of its property without due process of law. The respondent took issue upon these allegations, and avers that complainant has credits within the State, amenable to the taxing power, and the assessment upon the $175,000 was legal and valid. Testimony was taken by a special examiner under an order of court, and the case partially heard, and was then referred to a master, who made separate findings of fact and conclusions of law. 390 OCTOBER TERM, 1903. Statement of the Case. 191 U. 8. From the testimony adduced and the findings of the fact of the master, it appears that the complainant has had an average of $20,000 on deposit in money in the banks of New Orleans, upon which it has paid taxes annually. It has also paid an annual license tax upon business done. The assessment upon the $175,000 arises from moneys advanced by the local agent of the Comptoir in New Orleans upon transactions wherein customers draw checks, in the ordinary form, upon the Comptoir, and at the same time deposit collateral sufficient to secure the amount of money advanced, accompanying the check and collateral with a power of attorney, reciting, among other things, that, whenever the customer shall become indebted to the Comptoir for money lent or for any overdraft upon any check, the Comptoir is to have a lien upon the securities deposited, and upon failure to reimburse any overdraft, or to pay any indebtedness when due the Comptoir to have the right to sell the collateral and apply the proceeds upon such liabilities. The agent of the Comptoir testified that when the money was paid it was remitted back to Paris by an exchange transaction. It also appeared that the agent had authority to make loans as above without consulting the office in Paris, and that the transactions were continuing and large, and amounting to more than a million of dollars a year. The Comptoir also did a large business in the sale of exchange directly to customers, and relied largely for its gain upon the profits in exchange transactions between this country and Europe. The collateral deposited as security by customers is kept in New Orleans and is not remitted to the home office in Paris. The money needed for the transactions of the Comptoir arises from foreign exchange drawn from London, Paris, Berlin, etc. Speaking of the transactions from which the present controversy arises, the agent testifies: “ Q. Did you charge interest on your overdrafts? A. Yes, sir. “Q. Well, what evidence of indebtedness, besides the account on your books with your customers, have you that these BOARD OF ASSESSORS v. COMPTOIR NATIONAL. 391 191 U. S. Statement of the Case. people owe you anything at all? A. We have a regular settlement which we make every month. “Q. When you put $50,000, we will say, to the credit of one of your customers on your books, does he give you any receipt for your money previous to your crediting him with that on your books? A. I do not credit him; I pay him. “Q. You pay him----- A. Yes, sir; I pay him the money. “Q. What evidence have you that he owes you anything? A. I have got a check from him; he is overdrawn on my books. “Q. For the amount you have loaned him? A. Yes, sir. “By Mr. Zacharie: “Q. Suppose a man comes to you and says, Here, I have got certain securities, certain warehouse receipts or bills of lading, I want to borrow $50,000. You say to him, We will let you have it. Now he deposits with you these bills of lading or these warehouse receipts or these bonds, whatever you choose to accept as security for the loan. Do you give him a receipt for those? A. No. I am going to explain the business. Well, a client comes to me and says to me, and says I want $50,000, and I propose to give you such collateral, bills of lading for cotton or for grain or warehouse receipts or bonded warehouse receipts for cotton or for cake or cotton seed meal—any kind of those products. If I approve, ready to do the business, I say, Yes. Well, there are two ways, of letting him--that money; very often I open a credit in his favor on the Comptoir National d’Escompte de Paris in Paris or in London, then he draws against that credit—I mean to say, he sells his draft on the Comptoir to anybody he pleases, either in New Orleans or New York, if the loan is for a short period. Instead of asking him to draw I will draw it myself and hand him the money. “Q. You sell your own exchange? A. Then he is overdrawn on my books, and to show that he is overdrawn I tell him you draw a check on me and he gives me that check. And then I make him sign a general letter of hypothecation (which will 392 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. be shown to the attorney). Outside of that we have nothing of importance—I don’t see anything else. “Q. These securities and checks remain in your office here in New Orleans? A. Yes, sir; the checks are cash vouchers for the cashier, who has them to show that he paid the money. “Q. Suppose that the amount drawn by him does not come up to the amount of the value of this hypothecation, this hypothecated stuff, what is done there, at the close of the transaction? A. The general letter of hypothecation does not state any amount. It states simply it is a power of attorney. “Q. I say what is done when the transaction is concluded? He has got all of the money that you agreed to give him and the collaterals in your hands are worth more than that. What do you do there? A. We have a margin. You mean to say if the collateral is worth more than the money we give him? “Q. Yes. A. Then we have a margin; then we are protected if there is a fall in the price of the securities he gives us. “By Mr. DuPRi:: “Q. Does he take back the check he has given? A. No, sir. “ Q. When the transaction is concluded what becomes of that check that he has drawn against your bank? A. The check is a cash voucher; it stays among the cash vouchers of the day on which it is paid and remains perpetually in the custody of the Comptoir National d’Escompte de Paris for the cashier to show that he has paid that check. “Q. In other words, it is not returned to the man when he pays his debt? A. Because we keep an account current which varies each day. “Q. The agent of the Comptoir National d’Escompte de Paris in New Orleans has full authority to act for the Comptoir National d’Escompte de Paris in this city? A. Yes, sir. “Q. He does not have to confer by cable or otherwise with his principals in Paris or France as to whether he will make one loan or another, a particular loan? A. He has authority to loan certain amounts, or make certain transactions by exchange according to instructions he has from the other side. BOARD OF ASSESSORS v. COMPTOIR NATIONAL. 393 191 U. S. Statement of the Case. “Q. I mean, if I went in there he would not have to cable to ask about me? A. No, sir. “Q. When in answer to the fifth interrogatory you say the money was obtained by drawing foreign exchange on Europe, you mean to say that the cash which you lent in the city of New Orleans was obtained by drawing this foreign exchange on Europe and getting it cashed here in the banks? A. Getting it in New York. “Q. And the cash was forwarded to you from New York? A. Yes, sir. “Q. And that was the money that you lent? A. Yes, sir. “Q. Do you know, or can you state approximately, the amount of loans that you made during the year 1900? A. No, I cannot. “Q. About? A. Well, I made so many loans, you know, for a short period, and I can’t state the total amount; it would be too far away, the exact amount. “Q. Was it over a million dollars? A. Taken it altogether, yes. “ Q. How much over a million? A. I do not know. “Q. Was it ever two millions? A. No, sir. “Q. As I understand you, a great many of these loans were for short periods, so that you turned the money over and over again during the year? A. Yes, sir.” The master summarized his conclusion of fact as follows: “To sum up the facts: It is found that the complainant has paid its annual license tax on its exchange business, as provided by law, and has paid, or offered to pay, its annual tax on the average amount of $20,000 of money on deposit in Louisiana; and that the assessment, complained of, of $175,000 for the year 1901, is on the credits accruing to it from the advances made by it in New Orleans, through its agents here, on bills of lading and similar documents by way of collateral. These credits were either in the form of credits on Paris or London, giving 394 OCTOBER TERM, 1903. Argument for Appellants. 191U. S. the right to the Louisiana debtors to draw on the complainant in Paris or London, or they were transactions at short time by which the debtors were overdrawn on the books. In both cases, they amounted to overdrafts secured by collateral. In the previous year, which is not now in question, the complainant took non-negotiable notes to represent these credits, and these were considered in the case in the 52 Annual, which will be hereafter referred to again; but in the instant case, for the year 1901, the question is of these overdrafts.” Mr. H. G. Dupre and Mr. F. C. Zacharie, with whom Mr. E. K. Skinner was on the brief, for appellants: The right of the State to tax personal property within its limits has been upheld, even where the owner was neither a citizen nor a resident of the State imposing the tax. Tappan v. Merchants’ Bank, 19 Wall. 490; State R. R. Tax Case, 92 U. S. 575; Coe v. Errol, 116 U. S. 517; Pullman v. Pennsylvania, 141 U. S. 18. Neither fictions like mobilia sequuntur personam, nor yet sound legal principles like stare decisis, have availed to check this court in its evident determination to maintain the authority of the States in these matters of taxation. Savings Bank n. Multonomah County, 169 U. S. 421; New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; Blackstone v. Miller, 188 U. S. 205. See also Adams v. Colonial & U. S. Mtg. Co., 34 So. Rep. 460. The assessment complained of transgresses no provision of the constitution of the State of Louisiana, nor any law of that State. Article 225 of the Constitution of 1898 declares that “all property should be taxed in proportion to its value.” In obedience to that constitutional mandate the General Assembly, in the same year, adopted Act 170, which imposes a tax on the assessed valuation of all property within the State, except such as is expressly exempt by law. § 1, Act 170, defines “ property.’ Blue fields Banana Company Case, 49 La. Ann. 43. The only way in which foreign exchange figures in this matter BOARD OF ASSESSORS v. COMPTOIR NATIONAL. 395 191 U. S. Argument for Appellants. is that the complainant gets the money which he loans out in cash in New Orleans, by getting the cash which he gives the borrower which has been obtained by drawing complainant’s own exchange bills on Europe or New York. This constant introduction in the testimony of its dealing in foreign exchange, is a mere subterfuge to confuse the mind of the court, under the pretense that the complainant’s business is entirely in foreign exchange. This was the old subterfuge unsuccessfully attempted in 52 La. Ann. p. 1330. The following circumstances show that the change was an attempted evasion of taxation: 1st, the refusal of the witness to state the exact time when the change was made, although it was in his power so to state; 2d, the decisions of the Louisiana state courts as an incentive to the change; 3d, his excuse of his client’s demands for the change, uncorroborated by a single witness. The change is not such a device as will be recognized and given effect to by the court. As to evasions of taxation, see Cooley on Taxation, 2d ed. 415, 423; Welby on Assessments, p. 317, § 174; Greenhold on Public Policy, 48, 152; 12 Eng. & Am. Ency. 2d ed.; Mitchell v. Commissioners, 9 Kansas, 235, affirmed 91 U. S. 208; Shotwell v. Moore, 45 Ohio St. 632, affirmed 129 U. S. 590. These decisions show that the courts look upon such transactions as indefensible, and consider them improper evasions of the duty of the citizen to pay his share of the taxes necessary to support the government. This doctrine has been uniformly sustained by the Supreme Courts of the States, whenever the issue has been presented. Jones v. Seward, 4 N. W. Rep. 946; 10 Nebraska, 122; Dixon County v. Halstead, 23 Nebraska, 697; 37 N. W. Rep. 621; Drexler v. Tyrrell, 15 Nevada, 115; Holly Springs Sav. & Ins. Co. v. Supervisors of Marshall County, 52 Mississippi, 281; 24 Am. Rep. 668; Sheldon et als. v. Pruessner, 22 Lawyers’ Annot. Rep.709 (Kansas); Ogdens. Walker, 59 Indiana,460; Poppleton v. Yamhill Co., 8 Oregon, 340; Waller v. Jaeger et al., 39 Iowa, 228; Bellinger v. White, 5 Nebraska, 401. 396 OCTOBER TERM, 1903. 191 U. S. Argument for Appellee. Mr. Harry H. Hall for appellee: It is not within the power of a State to tax property unless the same is actually or by contemplation of law within its jurisdiction. St. Louis v. Ferry Co., 11 Wall. 429; State Tax on Foreign Held Bonds, 15 Wall. 300; McCulloch v. Maryland, 4 Wheat. 428; United States v. Erie R. R. Co., 106 U. S. 327; Hagar v. Reclamation District, 111 U. S. 701; Erie R. R. Co. v. Pennsylvania, 153 U. S. 628; Railroad Co. v. Jackson, 7 Wall. 262; Delaware R. R. Tax, 18 Wall. 206; Dewey v. Des Moines, 173 U. S. 193; Louisville & Jeffersonville Ferry Co. n. Kentucky, 188 U. S. 385; Railey v. Assessors, 44 La. Ann. 765. While tangible personal property, by a fiction of law, has been said to follow the domicile of its owner, it may be taxed at its actual“situs;” but it has never been held that an incorporeal thing, a mere abstraction, such as the naked obligation to pay a debt, could be so taxed. For an incorporeal thing, being an abstraction, can have no “ situs.” State Tax on Foreign Held Bonds, 15 Wall. 300. As to mortgages and bonds and negotiable notes, see Kirtland v. Hotchkiss, 100 U. S. 491; Dundee v. School District, 10 Sawyer, 52. A mortgage, so far as taxation is concerned, is a mere security. Hence, the question of the situs of notes and bonds is generally held not to be affected by the fact that the paper was or was not secured by mortgage, or, if so secured, by the location of the mortgaged premises. 15 Wall. 300; 51 N. J. Law, 140; 100 U. S. 491; 42 Connecticut, 426; 19 Am. Rep. 546; 12 Iowa, 539; 26 N. J.'Law, 564; 68 Indiana. 247; 3. Colorado, 349. Some courts, however, proceeding on the theory that a mortgage is an interest in land, have held it taxable in the State where the land lies, although held by a non-resident. 11 Oregon, 67; 50 Am. Rep. 462; 91 Michigan, 78; 1 Clarke Ch. N. Y. 42; 52 Pa. St. 140; 123 Pa. St. 594; 72 Pa. St. 72; 66 Pa. St. 73. The general rule is, that debts follow the person of the creditor, and are to be taxed at his domicile. 4 Woods (U. S.), BOARD OF ASSESSORS v. COMPTOIR NATIONAL. 397 191 U. S. Argument for Appellee. 206; 38 California, 461; 42 Connecticut, 426; 19 Am. Rep. 546; 43 Georgia, 336; 50 Georgia, 387; 108 Illinois, 113; 14 Indiana, 354; 59 Maryland, 472; 26 Am. Rep. 87; 68 Maryland, 247; 54 Iowa, 57; 65 Iowa, 110; 4 Bush (Ky.), 135; 8 B. Monroe (Ky.), 1; 41 La. Ann. 645; 41 La. Ann. 1015; 44 La. Ann. 760; 50 Maryland, 354; 25 Ohio St. 10; 3 Mo. C. S. C. 374; 27 Gratt. (Va.) 354; 25 California, 601; 33 Georgia, 113; 2 Oregon, 327; 13 S. W. Rep. 30; 75 Texas, 476. In the taxation of personal property, two inconsistent doctrines often come into conflict; the one mobilia sequuntur personam, commanding that the property shall be taxed at the owner’s domicile, on the theory that the personalty has no other situs; the other, that it shall be taxed like real property, where it is situated. Ordinarily, the first rule will prevail, and, as a general rule, personal property is taxable at the domicile of its owner. Cooley on Taxation, 2d ed. pp. 56-372; Burroughs on Taxation, par. 40; 14 Illinois, 163; 56 Am. Dec. 493; 12 Maryland, 464; 47 Connecticut, 477; 138 N. Y. 543; 10 Massachusetts, 514; 17 Massuchusetts, 461; 4 E. D. Smith (N. Y.), 675; 34 N. J. Law, 45; 23 N. J. Law, 532; 24 N. J. Law, 56; 30 N. J. Law, 13; 11 N. Y. 565; 15 N. Y. 316; 122 Pa St. 386; 14 Allen (Mass.), 366; 84 Iowa, 407; 17 Vermont, 609. In regard to assets evidenced by negotiable bills, notes and bonds, there are two lines of decisions. The view which is probably the more logical is, that the paper is mere evidence of indebtedness, and that the debt itself can have no actual situs wherever the paper may be; hence, the situs, in the eye of the law is, as in the case of ordinary debts, at the residence of the creditor. 131 Massachusetts, 24; 48 Ohio St. 648; 33 Iowa, 376; 16 Fed. Rep. 11; Cooley on Taxation, 2d ed.p. 15; 15 Wall. 300; 30 La. Ann. 876; 31 Am. Rep. 232; 106 Illinois, 25; 24 Pac. Rep. 182; 11 So. Rep. 393. Money, while a mere medium of exchange, is, so far as taxation questions are concerned, a form of tangible personal property. It may be taxed at the owner’s domicile, but is generally 398 OCTOBER TERM, 1903. 191 U. S. Argument for Appellee. taxed where it is actually situated. 1 Nevada, 397; 48 N. Y. 310; 2 McCrary (U. S.), 337; 44 La. Ann. 91; 66 How. Pr. (N. Y.) 190; 4 Blatchford, 263; Blackstone^. Miller, 188 U. S. 187. For Louisiana decisions, see Meyer v. Pleasant, Sheriff, 41 La. Ann. 645; Liverpool &c. v. Assessors, 44 La. Ann 760; Cla-son & Co. v. City, 46 La. Ann. 1; Parker v. Strauss, 49 La. Ann. 1173; State ex rel. v. Board of Assessors, 47 La. Ann. 1544; Comptoir National v. Board of Assessors, 52 La. Ann. 1319. In paying the tax upon this average balance in New Orleans, the Comptoir recognizes the correctness of the decisions that money sent by a foreign creditor to its local agent in another State, to be there employed in business and retained there for investment, under the protection of its laws, is liable to be taxed. Under such conditions the rule, mobilia sequuntur personam, does not apply. New Orleans v. Stempel, 175 U. S. 309, quoting from cases cited supra and Catlin v. Hall, 21 Vermont, 152; Goldcart v. People, 106 Illinois, 25; In re Jefferson, 35 Minnesota, 215; Blackstone v. Miller, 188 U. S. 189, citing Morley v. Railway Co., 146 U. S. 162; Kelly v. Rhoads, 188 U. S. 1; Diamond Match Co. v. Ontonagon, 188 U. S. 84; Walker v. Jack, 88 Fed. Rep. 580, and cases cited. A foreign corporation stands upon the same footing as an individual in respect to its credits arising from obligations incurred in another jurisdiction, nor does it by such loans bring its entire capital into that jurisdiction. Liverpool &c. n. Assessors, 44 La. Ann. 760; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196. While the State has not the power to localize an abstract credit, it may tax tangible personal property at the place of its location away from the domicile of its creditors. Tangible personal property is assessed sometimes at the domicile of the owner; sometimes at the place where it is situated. 25 California, 30; 39 California, 112; 21 Indiana, 335; 27 Indiana, 288; 92 Indiana, 222; 26 Illinois, 300; 79 Am. Dec. 377; 53 Illinois, 45; 80 Kentucky, 489; 3 Maryland, 259; 16 Gray (Mass.), 292; 60 Mississippi, 142; 15 N. J. Law, 320; 23 N.J- BOARD OF ASSESSORS ,v. GOMPTOIR NATIONAL. 399 191 U. S. Opinion of the Court. Law, 517; 17 Nevada, 383; 7 R. I. 317; 2 Spears (S. 0.), 719; 14 B. Monroe (Ky.), 521; 91 Alabama, 398; 114 U. S. 622. The State may, however, and often does, make it taxable at its actual situs. Dillon on Municipal Corporations, 4th ed. par. 786; Welty, Assessments, par. 34; 26 Illinois, 300; 79 Am. Dec. 377; 23 N. J. Law, 517; 23 N. Y. 224; 51 Barb. (N. Y.) 352; Tappan v. Bank, 19 Wall. 490; United States v. Bank, 8 Robinson La. Rep. 262. The cases cited show that the Legislature of Louisiana has never attempted to localize mere debts due to foreign creditors, for the purpose of taxation, and such attempt, if made, would be in violation of the constitution of the State. Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court. The constitution of the State of Louisiana of 1898, article 225, declares that all property shall be assessed in proportion to its value. Section 1 of the act of 1898, passed by the general assembly of the State, defines “property” to include “all personal property, ... all rights, credits, bonds and securities of all kinds, promissory notes, open accounts and other obligations, all cash. ... all money loaned at interest, • . . and all movable and immovable, corporeal and incorporeal articles or things of value, owned and held and controlled within the State of Louisiana by any person in any capacity whatsoever.” Section 7 of the act provides that it shall be the duty of the assessor to place upon the tax roll all property subject to taxation. “This shall apply with equal force to any person or persons representing in this State business interests that may claim a domicile elsewhere, the intent and purpose being that no non-resident, either by himself or through any agent shall transact business here without paying to the State a corresponding tax with that exacted of its own citizens; and all bills receivable, obligations or credits arising 400 OCTOBER- TERM, 1903. Opinion of the Court. 191 U. S. from business done in this State are hereby declared assessable within this State, and at the business domicile of said nonresident, his agent or representative.” This act undertakes to give to the State the right and authority to assess and collect taxes upon all bills receivable, obligations and credits within the State. This legislation was before this court in the case of New Orleans v. Stempel, 175 U. S. 309, in which it was sought to tax certain notes secured by mortgage on real estate in the city of New Orleans. The notes were owned in New York, but were in the hands of an agent of the owner in New Orleans, who collected the proceeds thereof and the interest as it became due and deposited the same in a bank at New Orleans. In that case, the decisions of the Supreme Court of Louisiana, construing its constitution and laws, particularly the act in question, were exhaustively reviewed by Mr. Justice Brewer, and the conclusion reached that thè act, as interpreted by the Supreme Court of the State, permitted the taxing of the notes in the hands of the agent, and that such action did not impair any right secured by the Federal Constitution. Since the decisions which were in review in the Stempel case, the Supreme Court of Louisiana, in a suit brought by the present complainant against the board of assessors, has had before it a case involving the right to tax credits and moneys of the complainant under a state of facts in most respects identical with that now before the court, the difference being that when the Comptoir loaned money upon bills of lading or other collateral security, it took the non-negotiable note of its customer, which note was can celled either by the payment of the amount due or the exhaustion of the collateral. Comptoir National d’Escompte de Pans v. Board of Assessors, 52 La. Ann. 1319. In the metho o doing business shown in the present case, instead of giving a non-negotiable note, the customer gives to the Comptoir s check, which check is not returned but held as an evidence-o the indebtedness, and is later sent to the office of the Comptoir at Paris. While called “ checks,” and so referred to in the BOARD OF ASSESSORS v. COMPTOIR NATIONAL. 401 191 U. S. Opinion of the Court. record and by the parties in their dealings, the instrument delivered to the Comptoir, in form an ordinary check as though drawn for payment on presentation from moneys deposited, had no such function. The money was paid to the customer upon the security of the collateral, and the so-called check taken and held as a memorandum of the indebtedness to the Comptoir. The exact question is whether these checks, secured by collateral held by the agent, are evidence of credits for money loaned upon interest having a local situs in New Orleans and constitutionally taxable within the meaning of the Louisiana statutes. In this case we are not dealing with that branch of the business of the Comptoir which relates to bills of exchange sold to its customers, but the assessment is sought to be made upon those credits which arise when money is loaned and advanced or paid in the State to the customer upon collateral security and the latter’s check is taken therefor. The transaction from which the alleged credits arise is briefly this: The customer applies for a loan of money and offers as security a bill of lading or other collateral and the money is paid to him. Instead of a note the Comptoir takes the check of the customer, which is regarded as an overdraft, upon which the customer can make payment from time to time and upon which he is charged interest, and upon the non-payment of the check the collateral is subject to sale. Is this a credit, for money lent on interest, taxable under the laws of Louisiana as interpreted by the Supreme Court of that State? The real transaction between the parties was intended to create and did create a debt held for the Comptoir by its agent in the State of Louisiana and evidenced by the check and secured by the collateral, which debt, when paid, created a fund in the hands of the agent subject to loan and reinvestment y him without consultation with the principal in such sense as to localize the credit for the purpose of taxation as effectually vol. oxoi—26. 402 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. as it would if a non-negotiable note had been taken as was done in the case decided in the 52 Louisiana Annual, supra. It is true that the agent testifies that the money when repaid was remitted by an exchange transaction to Paris, and the average balance in money in New Orleans banks was $20,000, which has been assessed without objection; but it is equally clear that the transactions of this kind were large and the funds subject to the control of the agent, who could lend them at will to customers. Whether this change, from notes to checks, was purposely made with a view to escaping taxation, as is argued by the respondents, or is a different method of evidencing the debt for the convenience of the customer, as is argued by the complainant, it is, in our judgment, equally a credit for money lent, localized in Louisiana, within the scope of the taxing laws of that State as construed by its Supreme Court. Was the attempted taxation in violation of the Federal Constitution? Speaking to this subject, in New Orleans v. Stempel, supra, Mr. Justice Brewer said: “When the question is whether property is exempt from taxation, and that exemption depends alone on a true construction of a statute of the State, the Federal courts should be slow to declare an exemption in advance of any decision by the courts of the State. The rule in such a case is that the Federal courts follow the construction placed upon the statute by the state courts, and in advance of such construction they should not declare property beyond the scope of the statute and exempt from taxation unless it is clear that such is the fact. In other words, they should not release any property within the State from its liability to state taxation unless it is obvious that the statutes of the State warrant such exemption, or unless the mandates of the Federal Constitution compel it. It may be taken as a general rule of the law of taxation of personal property that such property can only be taxed at the residence of the owner, or at such place as it has acquired a situs, which will subject it to the taxing power of the State BOARD OF ASSESSORS v. COMPTOIR NATIONAL. 403 191 U. S. Opinion, of the Court. where found. In its application to tangible property, there is little difficulty in applying this principle. The difficulty arises in determining whether a credit or chose in action has acquired a local situs in contemplation of law at a place other than the domicile of the owner in such sense as will permit the State to tax it in the place of its localization. The cases are numerous, both state and Federal, which recognize the right of the State, in view of the protection and remedial rights which its laws give to the owner of intangible property, such as notes and bills, to require from such property a contribution to the funds of the State, to be collected by taxation, for the purpose of maintaining and enforcing the laws which give force and effect to such obligations. This right has been the subject of such recent adjudication in this court that we will only notice some of the later decisions. We have already referred to New Orleans v. Stempel. The question came before the court in Bristol v. Washington County, 177 U. S. 133, in which case it was held that the personal property of a non-resident of the State of Minnesota, in the shape of notes payable at the office of the agent in Minnesota, where the mortgages securing the notes were retained by the agents, and the notes were returned from time to time when required for renewal, collection or foreclosure, the agents collecting the money and making loans in the name of the principal, generally on their own judgment, remitting to the principal the collections when required, or investing them in new loans, was properly taxable in Minnesota. Still later the subject was under consideration in Blackstone v. Miller, 188 U. S. 189, in which it was held that a deposit by a citizen of Illinois in a trust company in New York was within the taxing power of the latter State, even though the depositor intended to withdraw the money for further investment, and although the deposit had been subjected to taxation in Illinois as a part of an estate to which it belonged. From these cases it may be taken as the settled law of this court that there is no inhibition in the Federal Constitution against the right of the State to tax property in the shape of 404 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. credits where the same are evidenced by notes or obligations held within the State, in the hands of an agent of the owner for the purpose of collection or renewal, with a view to new loans and carrying on such transactions as a permanent business. The maxim, Mobilia sequuntur personam, which was applied in the court below as forbidding taxation of the checks in the hands of the agent in New Orleans, has been frequently held to be but a fiction of law, having its origin in considerations of general convenience and public policy, and not to be applied to limit and control the right of the State to tax property within the jurisdiction, it being intended to permit the owner to deal with his personalty according to the law of his domicile, and to make testamentary disposition of it according to the law where he is rather than that of the situs of the property. It was intended for convenience, and not to be controlling where justice does not demand it. Applying these principles to the facts in the case, we have no doubt that these checks, secured in the manner stated, and given for the purpose of evidencing an interest-bearing debt, were the evidences of credits for money loaned, localized in Louisiana, protected by its laws, and properly taxable there. The Comptoir was a foreign corporation; its business in Louisiana was in the hands of an agent; it furnished to the customer a sum of money and took from him a collateral security; for reasons satisfactory to the parties, instead of taking the ordinary evidence of indebtedness, the customer drew a check, never intended to be paid in the ordinary way, but intended by the parties to be held as evidence of the amount of money actually loaned; this loan could be satisfied by partial payments from time to time, interest being charged upon the outstanding amounts, and if not paid at maturity the collatera was subject to sale; when paid, the money might be again loaned by the agent to other parties, or remitted to the home office, and the business was continuing in its character. It is true the money to be paid to the customer was generally ARBUCKLE v. BLACKBURN. 405 191 U. S. Syllabus. obtained by the Comptoir drawing its draft upon New York or upon its home office, and a large part of the business of the Comptoir was in selling foreign exchange, but we cannot perceive that the transaction between the parties was any the less a loan because of the source from which the money was obtained. We find nothing in the requirements of the Federal Constitution or the statutes of the State of Louisiana, as construed by its Supreme Court, which should exempt such property from bearing its burden of taxation for the public benefit. It follows that the Circuit Court erred in holding otherwise and in granting a perpetual injunction. Decree reversed and cause remanded with instructions to dismiss the bill. ARBUCKLE v. BLACKBURN. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 66. Argued November 10,1903.—Decided December 7,1903. Where the jurisdiction of the Circuit Court is invoked on the ground of diverse citizenship it will not be held to rest also on the ground that the suit arose under the Constitution of the United States unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution upon the determination of which the result depends, and which appears on the record by a statement in legal and logical form such as good pleading requires; and where the case is not brought within this rule the decree of the Circuit Court of Appeals is final. ere the constitutionality of a police regulation of a State is conceded, e construction placed thereon, and prosecutions commenced in view of Sf Ch constJ’ucti°n thereunder, by an officer of the State in the discharge 0 is duty, do not in themselves constitute a deprivation of property without due process of law, a denial of equal protection of the law by the tate, or any direct interference with interstate commerce, and afford no ground for the jurisdiction of the Circuit Court as a Court of the United States. 406 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. This was a bill filed by Arbuckle Brothers against Joseph E. Blackburn, as Dairy and Food Commissioner of the State of Ohio, to restrain him from certain action on his part as such officer, including prosecutions for violation of pure food laws of the State. After a jurisdictional clause setting forth diversity of citizenship, the bill averred that by an act of the general assembly of the State of Ohio, passed in the year 1884, entitled “An act to provide against the adulteration of food and drugs,” as amended by an act passed in the year 1890, entitled “An act to amend section 3 of an act entitled ‘An act to provide against the adulteration of food and drugs,’ passed March 20, 1884,” which act was still in full force and virtue, it was provided that no person should, within the State of Ohio, manufacture for sale, offer for sale, or sell any article of food which was adulterated within the meaning of said act, and that the term “food” used therein should include all articles used for food or drink by man, whether simple, mixed or compound. That it was further provided that food should be deemed adulterated “(1) If any substance or substances have been mixed withit, so as to lower or depreciate, or injuriously affect its quality, strength or purity; (2) If any inferior or cheaper substance or substances have been substituted wholly or in part for it; (3) If any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; (4) If it is an imitation of, or is sold under the name of, another article; (5) If it consists wholly, or in part, of a diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable substance or article, whether manufactured or not—or, in the case of milk, if it is the product of a diseased animal, (6) If it is colored, coated, polished or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is, (7) If it contains any added substance or ingredient which is poisonous or injurious to health; provided, that the provisions of this act shall not apply to mixtures or compounds recog- ARBUCKLE v. BLACKBURN. 407 191 U. S. Statement of the Case. nized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, with the name and per cent of each ingredient therein, and are not injurious to health.” The bill alleged that for more than thirty years complainants and their predecessors had been engaged, and still were, in the manufacture and sale throughout the United States, including the State of Ohio, a certain compound or mixture known as Ariosa, composed of roasted coffee compounded and mixed with eggs and sugar, whereby the separate beans were coated, and to a large extent hermetically sealed after roasting with a compound of sugar and eggs, the original strength and aroma of the coffee being thus preserved and deterioration prevented; that the coffee, eggs and sugar were each “a common, healthy and unobjectionable article of food;” that Ariosa had acquired great reputation, and the good will of the business of its manufacture and sale had become very valuable; that it was sold in Ohio in packages, each of which, in compliance with the laws of Ohio in respect to the adulteration of food, was distinctly labeled with a printed statement of the precise composition and the proportion of each of the ingredients of the article. And it was charged that, notwithstanding these facts, defendant as dairy and food commissioner of Ohio had notified complainants that he considered Ariosa, as put up by them, an adulteration; that he had issued a circular letter to dealers and vendors wrongfully asserting that complainants in the manufacture and sale thereof refused to abide by the laws of Ohio in that behalf; and that he proposed to institute prosecutions to prevent and punish its sale or offer for sale in Ohio. By the sixteenth paragraph of the bill it was averred that # said statute, construed as respondent claims it should be, is in conflict with the Fourteenth Amendment to the Constitution of the United States, and void, in that it would deprive complainants of their aforesaid property,” and would deny them “equal protection of the law.” And by the seventeenth paragraph it was averred that Ariosa 408 OCTOBER TERM, 1903. Argument for Appellants. 191 U. S. was shipped to and sold in Ohio in original packages, “and said statute, if construed as the respondent herein claims it should be, is a regulation by the said State of Ohio of interstate commerce, and is repugnant to, and in violation of, the third clause of section eight of article one of the Constitution of the United States, and void.” That if “respondent be permitted to commit the threatened wrongs, the same will, as complainants are informed and believe, damage complainants to the extent of more than $100,000, an amount largely in excess of respondent’s ability to respond in judgment.” The prayer was that the commissioner be restrained from charging that Ariosa was an article of food adulterated within the meaning of the statute, and that the use of the process of coating and glazing the coffee with the preparation of sugar and eggs and the importation and sale constituted violations of the statute; from threatening dealers with prosecution; and from instituting or commencing prosecutions. The case came on to be heard on complainants’ application for a preliminary injunction and was submitted on pleadings and evidence, whereupon the Circuit Court entered a decree denying the injunction and dismissing the bill, which decree was affirmed by the Circuit Court of Appeals, 113 Fed. Rep. 616, and the case was then brought here by appeal. Mr. John DeWitt Warner, with whom Mr. Clarence Brown was on the brief, for appellants: The court had jurisdiction. § 720, Rev. Stat, does not apply as the threatened prosecutions had not been commenced when the bill was filed. Rhodes Co. v. New Hampshire, 70 Fed. Rep. 721; Live-Stock Dealers’ & Butchers’ Assn. v. Crescent City Live Stock Landing & Slaughterhouse Co., 1 Abb. (U. S.) 388, 404, 407; Fed. Cas. No. 8408; Fisk v. Railroad Co., 10 Blatchf. 518; Fed. Cas. No. 4830; Louisiana v. Lagarde, 60 Fed. Rep. 186, 193; Yick Wo v. Crowley, 26 Fed. Rep. 207. This suit is not against the State of Ohio within the intend- ARBUCKLE v. BLACKBURN. 409 191 U. S. Argument for Appellants. ment of the Eleventh Amendment to the Constitution of the United States. Scott v. Donald, 165 U. S. 58; Tindal v. Wesley, 167 U. S. 204; Western Union Tel. Co. v. Myall, 98 Fed. Rep. 335; Railway Co. v. Dey, 35 Fed. Rep. 866-871; Fitts v. McGhee, 172 U. S. 516; Union Pac. R. Co. v. Alexander, 113 Fed. Rep. 347; Smyth v. Ames, 169 U.’ S. 466; Prout v. Starr, 188 U. S. 537; CW. Trust Co. v. Citizens Street Ry. Co., 80 Fed. Rep. 218; 225; Louisiana v. Lagarde, 60 Fed. Rep. 186; L. & N. R. Co. v. Brown, 123 Fed. Rep. 946, and cases cited. In defence of property rights, and when justified by equitable considerations, courts of equity may enjoin criminal prosecution. Snell, Principles of Equity, 12th ed. 648 (Lond. 1898); High on Injunction, ed. 1890, § 68; Lord Auckland v. Westminster Local Board of Works, L. R. Ch. App. Cas. VII, 597; Atlanta v. Light Co., 71 Georgia, 106; Mobile v. L. & N. R. R. Co., 84 Alabama, 115; Birmingham v. Alabama, G. S. R. R. Co., 98 Alabama, 134; R. R. Co. v. Attala, 118 Alabama, 362; Dinsmore v. Board of Police, 12 Abb. N. C. 436; Manhattan Iron Works v. French, 12 Abb. N. C. 446. This jurisdiction has been frequently exercised by the Federal courts in restraint of state officials (as well as others) from both civil and criminal prosecutions in state’ (as well as other) courts. Central Trust Co. v. Citizens St. R. Co., 80 Fed. Rep. 218; Western Union Tel. Co. v. Myall, 98 Fed. Rep. 335; Minneapolis Brewing Co. v. McGillivray, 104 Fed. Rep. 258; U. P. R. R. Co. v. Alexander, 113 Fed. Rep. 347; L. & N. R. Co. v. Brown, 123 Fed. Rep. 946; Tindal v. Wesley, 167 U. S. 204; State of Louisiana v. Lagarde, 60 Fed. Rep. 186; Donald v. Scott, 67 Fed. Rep. 854; Scott v. Donald, 165 U. S. 58; Wong Wai v. Williamson, 103 Fed. Rep. 1; Jew Ho v. Williamson, 103 Fed. Rep. 10; Express Co. v. Mayor, 116 Fed. Rep. 756, and cases cited; Wallace v. R. R. Co., 118 Fed. Rep. 422; Smyth v. Ames, 169 U. S. 466. The bill sets forth causes of action justifying the relief asked. Defendant’s circulars and threats of prosecution are in themselves cause of action. Farquahar v. Nat. Harrow Co., 102 410 OCTOBER TERM, 1903. Argument for Appellants. 191 V. S. Fed. Rep. 714, and numerous cases cited on p. 715; Adriance v. Nat. Harrow Co., 121 Fed. Rep. 827; Hutchinson v. Beckham, 118 Fed. Rep. 399. The construction of a statute is not a matter of discretion. Defendant-respondent is left equally unprotected, whether by a void statute (if his construction is correct), or by the fact (if his construction is wrong) that the law is not such as he assumes it to be. Defendant is utterly mistaken in the construction he claims for the Ohio statute, under color of which his threats are made •—Ariosa being within the saving clause, and not within the prohibition of such statute. White v. Ohio, 12 Ohio N. P. 659. To justify acts thereunder as within the police powers of the State, the construction of the statute permitting or requiring such acts must be—(u) The proper and legal construction of such statute; and (b) Such as subserve some public end justifying the exercise of such police powers. As to the latter see Matter of Jacobs, 98 N. Y. 98; In re Marshall, 102 Fed. Rep. 323; Black on Interpretation, 304. (c) Properly construed, the Ohio statute in question is no protection to respondent; and (d) Respondent’s erroneous construction is as utterly futile as a defence here, as can possibly be the statute itself were its effect such as he claims. Pre-Digested Food Co. v. McNeal, Dairy Comm’r, 4 Ohio S. & C. P. Dec. 456. The statute in question, if construed as respondent claims— and in any case his such construction—is unconstitutional and of no protection to him. It interferes with interstate commerce. Schollenberger v. Pennsylvania, 171 U. S. 1. Where serious wrong cannot otherwise be righted, equity will neither hesitate to exercise its jurisdiction to the full extent of its scope, nor be nice to seek reasons why it should not do so. Exp. Co. v. Mayor &c., 116 Fed. Rep. 756; Niagara Ins. Co. V-Cornell, 110 Fed. Rep. 816, and cases cited supra. Eggs, sugar and coffee, each being an ordinary and healthful ingredient of food, any citizen of Ohio has a right to sell, pur- ARBUCKLE v. BLACKBURN. 411 191 U. S. Argument for Appellee. chase or use either, in any shape he sees fit. It is no business of the State how much he values each, the proportion in which he shall mix them, or the manner in which he shall prepare, drink, or otherwise use them. If he chooses to buy them, compounded or mixed, or, if the prosecution prefer, “ aggregated,” as Ariosa, he has a right to do so. Dorsey v. Texas, 40 L. R. A. (Texas) 201. Mr. Edmond B. Dillon, with whom Mr. Roscoe J. Mauck was on the brief, for appellee : There are but two cases exactly in point. Williams v. McNeal, 1 C. C. 280; PreDigested Food Co. v. McNeal, Commissioner, 1 Ohio N. P. 266, both sustain the appellee. This is really a suit against the State. Cunningham v. R. R. Co., 109 U. S. 446; Davis v. Gray, 16 Wall. 203. There is no distinction in this case between patented and unpatented articles. Palmer v. State, 39 Ohio St. 236, and cases cited; Patterson v. Kentucky, 7 Otto, 501. The statute is constitutional. Cooley’s Const. Lim. 3d ed. 168; Com. v. Huntley, 156 Massachusetts, 236; Powell v. Pennsylvania, 127 U. S. 678, reaffirmed in Schollenberger v. Pennsylvania, 171 U. S. 1 ; Plumley v. Massachusetts, 155 U. S. 461. The general food act of Ohio is copied verbatim from a New York statute which, in turn, is copied from a statute of Victoria. The law has stood the test of scores of courts in this country and in England. In Ohio this act has been approved by the Supreme Court in the following cases: State v. Cap. City Dairy Co., 62 Ohio St. 350; Palmer v. State, 39 Ohio St. 236; Meyer v. State, 54 Ohio St. 242 ; State v. Kelly, 54 Ohio St. 166 ; State v. Dreber, 54 Ohio St. 115; State v. Ruedy, 57 Ohio St. 224; Hutchinson. v. State, 56 Ohio St. 82. . See Gundling v. Chicago, 177 U. S. 183. The statute does not interfere improperly with interstate commerce. Cases cited, supra; Ferry Co. v. Pennsylvania, 114 U. S. 196 ; Kimmish v. Pennsylvania, 129 U. S. 217 ; Patterson 412 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. v. Kentucky, 7 Otto, 501; Hinson v. Lott, 8 Wall. 148; Turner v. Maryland, 107 U. S. 38. A court will not interfere in cases where the executive is merely exercising his judgment as to the guilt or innocence of a citizen by causing the arrest or refusing to cause the arrest of any citizen for alleged violation of a valid criminal statute. Perault v. Rand, 10 Hun, 222; Judges v. People, 18 Wendell, 79, 99. There are cases which hold that the legislature itself cannot invest the judicial department of the government with authority to assume jurisdiction over legislative or executive departments. Sterling v. Doake, 29 Ohio St. 457; State v. Nichols, 26 Arkansas, 74; State v. Sloss, 25 Missouri, 291; Attorney General v. Brown, 1 Wisconsin, 513; Haley v. Clark, 26 Alabama, 439; Smith v. Myers, 109 Indiana, 1; Cunningham v. R. R. Co., 109 U. S. 446; Davis v. Gray, 16 Wall. 103; Gaines v. Thompson, 7 Wall. 347; Comm, of Patents v. Whitiley, 4 Wall. 522. The interference of the courts with the performance of the ordinary duties of the executive department would be productive of nothing but mischief. United States v. Seaman, 17 How. 225; United States v. Guthry, 17 How. 284; United States v. Commissioner, 5 Wall. 563; Litchfield v. Register, 9 Wall. 576; Georgia v. Stanton, 6 Wall. 50; Mississippi v. Johnson, 4 Wall. 475; Cohen v. Commissioners, 77 N. Car. 2; Fickle v. Commissioners, 66 How. Pr. 318; Hinton v. Sheriff, 46 Georgia, 350; Chicago v. Wright, 69 Illinois, 318; R. R. Co. v. DeGraaf, 27 Minnesota, 1; Osborne v. Bank, 9 Wheat. 738; Spelling on Extraordinary Relief, §§ 625, 628. The action is forbidden by § 720, U. S. Rev. Stat. The cases cited by appellant are inapplicable and can be distinguished from this case. Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. We are of opinion that this appeal must be dismissed, because ARBUCKLE v. BLACKBURN. 413 191 U. S. Opinion of the Court. the jurisdiction of the Circuit Court was “ dependent entirely upon the opposite parties to the suit or controversy being . . . citizens of different States,” and the decree of the Circuit Court of Appeals was final. Act of March 3,1891, 26 Stat. 826, c. 517, §6. The Circuit Courts have “ original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand 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 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, . . . ” Act of March 3, 1887, 24 Stat. 552, c. 373; Act of August 13, 1888, 25 Stat. 433, c. 866. In the present case the Circuit Court had jurisdiction on the ground of diverse citizenship, but it is now contended that jurisdiction also rested on the ground that the suit was one arising under the Constitution of the United States. The rule is firmly established that a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution, upon the determination of which the result depends, and which appears on the record by a statement in legal and logical form such as is required in good pleading. Defiance Water Company v. City of Defiance, ante, p. 184, and cases cited. The averments of this bill did not bring the case within that rule for they put forward no existing controversy as to the effect or construction of the Constitution, on which the relief depended, and set up no right which might be defeated or sustained according to such construction. By the laws of Ohio the office of Dairy and Food Commissioner was created, and it was made the duty of that officer to attend to the enforcement of all the laws against fraud and 414 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. adulteration or impurities in food, drink, or drugs; to appoint assistant commissioners ; and to employ such experts, chemists, agents, inspectors and counsel as he might deem necessary for the proper enforcement of the laws; and it was also made his duty to inspect any articles made or offered for sale as articles of food or drink, and to prosecute, or cause to be prosecuted, any person or persons, firm or firms, corporation or corporations engaged in the manufacture or sale of any article of food or drink adulterated in violation of any laws of the State. 1 Bates’ Ohio Statutes (1897), p. 262, Tit. Ill, c. 18. By the act of 1884, as amended in 1890, and set out in the bill, it was provided, among other things, that food should be deemed adulterated “if it is colored, coated, polished or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is.” 2 Bates’ Ohio Statutes (1897), p. 2229,Tit. V, ch. A. The proviso excepted mixtures and compounds, recognized as ordinary articles of food, not injurious to health, and labeled as required. It is not asserted that this police regulation is in contravention of the Constitution of the United States, but it is said that when the commissioner, in the discharge of his duty under the law, reached the conclusion that the coating of Ariosa with a glaze of sugar and eggs was calculated to conceal damage or inferiority, and to make the article appear better or of greater value than it really was, and that the article was not a compound or mixture, and proposed to prosecute, he thereby construed the act in a way, which, if his construction were correct, would render it unconstitutional. But these were findings of fact which resulted in bringing the article within the prohibition and excluded it from the proviso, and neither findings nor prosecutions would in themselves constitute a deprivation of property, or a denial of the equal protection of the law, by the State, or any direct interference with interstate commerce, and the constitutionality of the statute was conceded. ARBUCKLE v. BLACKBURN. 415 191 U. S. Opinion of the Court. The suggested controversy was purely hypothetical and based the supposed constitutional objections on the contingency that, on issues of fact, it might be judicially determined that Ariosa came within the statute, which complainants denied. If the commissioner’s conclusions were erroneous, the courts were open for the correction of the error, and the possibility that they might agree with the commissioner could not be laid hold of as tantamount to an actual controversy as to the effect of the Constitution, on the determination of which the result of the present suit depended. Indeed, in the only case called to our attention by counsel involving the status of Ariosa, the Court of Common Pleas of Lucas County, Ohio, held that it was not within the prohibition of the statute. White v. Ohio, 12 Ohio Nisi Prius Decisions, 659. Reference to the Constitution to strengthen objections to a particular construction, or the pursuit of a certain course of conduct, is not sufficient to invoke jurisdiction. Whatever grounds of equity interposition may have existed here, and we express no opinion on that subject, the jurisdiction of the Circuit Court as a court of the United States depended alone on diverse citizenship. If the allegation of that fact had been omitted from the bill, the jurisdiction could not have been maintained. Appeal dismissed. Mr. Justice Day took no part in the disposition of the case. 416 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. GUARANTY CO. v. PRESSED BRICK CO.1 CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 39. Argued October 30,1903.—Decided December 7,1903. The taking by a materialman of thirty and sixty day notes for materials supplied to one contracting with the Government and who had given the bond of a surety company in pursuance of the act of August 13, 1894, 28 Stat. 278, to the effect, among other things that he would “promptly make payment to all persons supplying him labor or materials” will not necessarily relieve the surety company from obligation under the ordinary rule that exonerates a guarantor in case the time fixed for performance of the contract by the principal be extended without his consent, where it does not appear that such extension was unreasonable, or that the surety was prejudiced thereby. This was an action originally begun in the Circuit Court for the District of Colorado by the United States, for the use and benefit of the Golden Pressed and Fire Brick Company, (hereinafter called the Brick Company,) against John A. McIntyre and the United States Fidelity and Guaranty Company, (hereinafter termed the Guaranty Company,) upon a bond executed April 11,1898, in pursuance of an act of Congress of August 13, 1894, 28 Stat. 278, c. 280, to secure the performance of a contract theretofore entered into by McIntyre with the Secretary of the Treasury to furnish all the labor and materials and do all the work required for the foundation and superstructure of a mint in the city of Denver. The questions certified are founded upon the following facts: McIntyre, having agreed to erect the building, executed a bond to the United States, with the Guaranty Company as surety, conditioned not only upon the faithful performance of his work to erect the building according to his contract, and to any changes or additions made thereto, but to “ promptly make payment to all persons supplying him labor or material in 1 Docket title, United States Fidelity and Guaranty Company v. United States, for the use and benefit, etc., of the Golden Pressed and Fire Bnc Company. GUARANTY CO. v. PRESSED BRICK CO. 417 191 U. S. Statement of the Case. the prosecution of the work contemplated by said contract.” During the progress of the work the Brick Company furnished the contractor brick for the construction of the building to the amount of $6517.55, which had been reduced by payments to $2711.65, for which the action was brought. The defendant denied its liability upon the ground that on October 1, 1898, the Brick Company, without the knowledge or consent of the Guaranty Company, granted to McIntyre an extension of the time of payment of the balance then due on account of the purchase price of such brick, and accepted two promissory notes, one for thirty days after date, (October 1,) and another sixty days after September 15, 1898, the first one of which was paid. There was no allegation that, by reason of the extension of the time of payment of the sum so due on October 1, the Guaranty Company had sustained any loss or injury, but it was insisted that it was nevertheless thereby released and discharged from any further liability upon such bond. ’ • The Circuit Court held that the extension did not operate to discharge the Guaranty Company from its liability, and the Circuit Court of Appeals, to which the case was carried, certified to this court the following questions of law arising from these facts: “First. Did the action of the Brick Company on October 1, 1898, in taking two promissory notes, one for the sum of $1,275 and the other for the sum of $2,508.10, for the amount of the Brick Company’s account, then due and payable, one of said notes running for thirty days and the other for sixty days, and each bearing ten per cent interest per annum from date, operate to discharge the United States Fidelity & Guaranty Company from its liability, assumed under the provisions of the aforesaid bond, to p£y to the Golden Pressed & Fire Brick Company the amount of said indebtedness? Second. Did the extension of the time of payment of the balance due from said McIntyre, on October 1, 1898, by the taking of two notes in the manner and form aforesaid, operate vol. cxci—27 418 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 U. S. to discharge the United States Fidelity & Guaranty Company of its liability to pay the amount of said indebtedness to the Brick Company, irrespective of the question whether said Guaranty Company- did or did not sustain an actual loss or damage on account of such extension? ” Mr. Andrew W. Gillette for plaintiff in error. The obligation of the plaintiff in error is that of suretyship, and in determining its liability to the Brick Company the rules of law applicable to contracts of suretyship in general are to be applied. United States v. Am. Bonding and Trust Co., 32 C. C. A. 420 ; 89 Fed. Rep. 925, 929; United States v. McIntyre, 111 Fed. Rep. 590, 597. The terms and extent of this obligation are to be ascertained by reading the bond in the light of the contract between McIntyre and the Brick Company. The bond alone does not contain all the surety’s contract with the Brick Company. Brown v. Markland, 22 Ind. App. 652; 53 N. E. Rep. 295, and cases cited; Ulster County Savings Inst. v. Young, 161 N. Y. 23; 55 N. E. Rep. 483. The statutory bond in suit imposes upon the surety a dual obligation: (1) to the government, for the completion of the principal contract; (2) to laborers and materialmen, to see that they are promptly paid. These obligations are entirely separate and distinct. United States &c. v. Nat. Surety Co., 34 C. C. A. 526; 92 Fed. Rep. 549; United States &c. v. Rundle et al., 40 C. C. A. 450; 100 Fed. Rep. 400; Griffith v. Rundle, 23 Washington, 453; 63 Pac. Rep. 199; Omaha Bldg. & Const. Co. v. United States F. & G. Co., 116 Fed. Rep. 145; United States v. Freel, 92 Fed. Rep. 299; affirmed 99 Fed. Rep. 237; Dewey v. State, 91 Indiana, 173; Conn v. State, 125 Indiana, 514; 25 N. E. Rep. 443; Doll v. Crume, 41 Nebraska, 655; 59 N. W. Rep. 806; Kauffman v. Cooper, 46 Nebraska, 644; 65 N. W. Rep. 796; Lyman v. City of Lincoln, 38 Nebraska, 794; 57 N. W. Rep. 531, United States v. Stratford, 65 N. Y. Supp. 1051; Steffes v. Lemke, 40 Minnesota, 27; 41 N. W. Rep. 302. GUARANTY CO. v. PRESSED BRICK CO. 419 191 U. S. Argument for Plaintiff in Error. Any change whatever in the contract for which the surety is liable, made without his consent, will operate his discharge. United States v. Freel, 92 Fed. Rep. 299, 306, affirmed 99 Fed. Rep. 237; Reese v. United States, 9 Wall. 13, 21; Bethune v. Dozier, 10 Georgia, 235. Extension of time of payment, if made without his consent, is such a change as will release a surety. 2 Brandt on Suretyship and Guar. § 342; 1 Story’s Eq. Jur. § 326; New Hampshire Sav. Bank v. Colcord, 15 N. H. 119; 41 Am. Dec. 685; Winne v. Colo. Springs Co., 3 Colorado 155, 161; Martin v. Thomas, 24 How. 315; Smith v. United States, 2 Wall. 219. If a creditor take the note of a debtor, payable at a future date, for a debt then due, he thereby extends the time of payment of, and suspends his right of action upon, the debt until the maturity of such note, and thereby releases from further obligation any person who was bound as surety for the payment of such debt. United States v. Am. Bonding and Trust Co., 32 C. C. A. 420; 89 Fed. Rep. 925, 929; Rees v. Berrington, 2 Ves. Jun. 540; 2 White and Tudor’s Lead. Cas. Eq. 1867, 1869. See American cases cited to the same proposition in note Ibid., 1915; Chickasaw Co. v. Pitcher, 36 Iowa, 593, 598; Myers v. Wells, 5 Hill (N. Y.), 463; Appleton v. Parker, 15 Gray (Mass.), 175; Okie v. Spencer, 2 Whart. (Pa.) 253, 257; Hart v. Hudson, 6 Duer, 305; Norton v. Roberts, 4 T. B. Monroe (Ky.), 491; Fellows v. Prentiss, 3 Den. 512, 518; 45 Am. Dec. 484, and cases cited in note; Templeman v. Tex. Brewing Co. (Tex. 1896), 35 S. W. Rep. 935; Elyton Co. v. Hood, 121 Alabama, 373; 25 So. Rep. 745; Brooks v. Wright, 13 Allen (Mass.), 72; Benson v. Phipps, 87 Texas, 578; 29 S. W. Rep. 1061; Andrews v. Marrett, 58 Maine, 539. The implied agreement of the Brick Company for extension of time of payment of McIntyre’s indebtedness was based upon a sufficient consideration. Myers v. Wells, 5 Hill (N. Y.), 463, 64, St. Paul Trust Co. v. St. Paul Chamber of Com., 70 Minne-sota, 486; 73 N. W. Rep. 408; Benson v. Phipps, 87 Texas, 578; 9 S. W. Rep. 1061, and cases cited; Drescher v. Fulham, 11 Colo. App. 62. 420 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 U. S. A surety is discharged by a change, made without his consent, in the contract for the performance of which he is bound, regardless of whether or not he is damnified by such change. Miller v. Stewart, 9 Wheat. 680, 702; Rose’s Notes on U. S. Reports, 314; Reese v. United States, 9 Wall. 13, 21; Bethune v. Dozier, 10 Georgia, 235; Burley v. Hitt, 34 Mo. App. 272; Norton v. Roberts, 4 T. B. Monroe (Ky.), 491. Mr. T. J. O’Donnell for defendant in error: We contend that the obligation assumed by these so-called guaranty and surety companies, in cases of this kind, is that of insurers and that they should be and are being so treated by the courts, and that the law which governs those who for a premium paid assume a possible risk should be applied to them, rather than that they should be deemed “favorites of the law,” a term used (somewhat unhappily perhaps) with respect to that social surety, who from motives of kindness and friendship, without interest in the profit and without consideration, voluntarily assume liability for the performance of contracts by, and possible faults of, neighbors and friends. See United States &c.v. Rundle, 107 Fed. Rep. 227; 46 C. C. A. 251; United States &c. v. Kimpland, 93 Fed. Rep. 403; F. & G. Co. v. Omaha Bldg. & Const. Co., 116 Fed. Rep. 145; Griffith v. Rundle, 23 Washington, 453; United States &c. v. Hazzard, 53 N. Y. App. Div. 410; Mullin v. United States &c., 109 Fed. Rep. 817; 48 C. C. A. 677; United States n. Freel, 92 Fed. Rep. 299; 39 C. C. A. 491; 99 Fed. Rep. 237; 186 U. S. 39; Ludlow v. Simond, 2 Caine’s Cases, 1, 29; Blest v. Brown, 6 Law T. N. S. 620. That parties furnishing labor and materials protected by an undertaking such as that given in the case at bar, are not affected by a change in the contract made by the principals, is held not only in the Federal cases which we have cited, but to the same effect is, Doll v. Croom, 41 Nebraska, 655; Kauffman v. Cooper, 46 Nebraska, 644; Steffes v. Lemke, 40 Minnesota, 27; Cohn v. State, 125 Indiana, 514; Dewey v. State, 91 Indiana, 173; United States v. Stratford, 65 N. Y. Supp. 1051, cited in the brief GUARANTY CO. r. PRESSED BRICK CO. 421 191 U. S. Argument for Defendant in Error. of counsel for plaintiff in error, and see also Brown v. Markland, 22 Ind. App. 652. It is not attempted to be set forth in the certificate that the notes were taken in payment of the debt, and it will not be so presumed. A certificate of this kind is the same as with respect to the pleadings, with which the rule is that the pleading must definitely aver that the plaintiff accepted the notes in settlement, satisfaction and discharge of the debt. Homas v. McConnell, 3 McLean, 381; Blunt v. Williams, 27 Arkansas, 374-376; Taylor v. Purcell, 60 Arkansas, 606, 611; Hughes v. Wheeler, 8 Cow. 77-81; Loux v. Fox, 171 Pa. St. 68-71; McGwire v. Bidwell, 64 Texas, 43. And, besides, in a case where a. creditor has a lien or security, the taking of a note does not constitute a payment. Mehan v. Thompson, 71 Maine, 492; Cotton v. Atlas Nat. Bank, 145 Massachusetts, 43; Bunker v. Barrow, 79 Maine, 62; Machine Co. v. Brock, 113 Massachusetts, 194. Under mechanics’ lien laws the giving of credit, taking of notes or other security, does not waive or release the lien. Mehan v. Thompson, 71 Maine, 492; Western Brass Mfg. Co. v. Boyce, 74 Mo. App. 343; Mt. Electric Co. v. Miles, 56 Pac. Rep. 284; 9 N. M. 512; Cuchwa v. Improvement L. & B. Assn., 32 S. E. Rep. 259-263. This act gave by the bond a substitute for security given by the lien law on private buildings. Surety companies are to be treated as insurers, and contracts of this kind construed and governed by the law applicable to insurance policies rather than the strict rule of law in relation to suretyship. See Frost on Guaranty Insurance Companies citing under § 3; People ex rel. v. Rose, 174 Illinois, 310; Guaranty Co. v. Mechanics’ Savings &c., 80 Fed. Rep. 766; 26 C.C.A. 146; Am. Credit Indemnity Co. v. Athens Woolen Mills, 92 Fed. Rep. 581; 34 C. C. A. 161; Bank v. Fidelity & Dep. Co., 128 N. Car. 366; Jackson v. Fidelity & Cas. Co., 75 Fed. Rep. 359; 21 C. C. A. 394; Shackman v. U.S. Credit System Co., 92 Wisconsin, 366; Tebbets v. Mercantile Credit Guar. Co., 73 Fed. Rep. 95; 19 C. C. A. 281; 422 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. People ex rei. v. Fidelity & Cas. Co., 153 Illinois, 25 ; Eickoff v. Fidelity & Cas. Co., 74 Minnesota, 139; Fidelity & Cas. Co. v. Yoder, 64 Pac. Rep. 1027; 63 Kansas, 880; Seaton v. Heath, 1 L. R. Q. B. D. 1899, 782; Dane v. Mtg. Ins. Corp., 1 L. R. Q. B. D. 1894, 54; Finley v. Mex. Ins. Corp., 1 L. R. Q. B. D. 1897, 517; Fidelity & Cas. Co. v. Crays, IQ Minnesota, 450; Fidelity & Cas. Co. of N. Y. v. Eickoff, 63 Minnesota, 170;Statev.Hogan, 8 N. D. 301 ; Robertson v. U. S. Credit System Co., 57 N. J. L. 12; Claflin v. U. 8. Credit System Co., 165 Massachusetts, 501; Hayne v. Metropolitan Tr. Co., 67 Minnesota, 245; Strouse n. American Credit Ins. Co., 91 Maryland, 244; Trenton Potteries Co. v. Title Guar. & T. Co., 64 N. Y. Supp. 116; 50 N. Y. App. Div. 490 ; Minnesota Title Ins. & T. Co. v. Drexel, 70 Fed. Rep. 194; 17 C. C. A. 56; Wheeler v. Real Estate Title Ins. & T. Co., 160 Pa. St. 408. And see Frost on Guar. Ins. Cos. § 4, citing Walker v. Holt-zauer, 57 So. Car. 459; 35 S. E. Rep. 754; Com. v. Equitable Ben. Assn., 137 Pa. St. 412; Am. Surety Co. n. Pauly, 170 U. S. 133. The parties to a contract which has been executed by another party as surety may still deal with each other in matters outside of the contract of the surety with the same effect as if no such contract or suretyship existed, and such dealings do not release the surety. Benjamin v. Hillard, 23 How. 149 ; Roach v. Summers, 20 Wall. 165; Cross v. Allen, 141 U. S. 528, and cases cited; Stuts v. Strayer, 60 Ohio St. 384; Joyce v. Auten, 179 U. S. 591, and cases cited; Fertig v. Barties, 78 Fed. Rep. 866; Wood v. Brown, 104 Fed. Rep. 203; 43 C. C. A. 474; Mullin v. United States, 109 Fed. Rep. 817. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. This bond was given in pursuance of the act of 1894, 28 Stat. 278, c. 280, “for the protection of persons furnishing materials and labor for the construction of public works.” The act GUARANTY CO. v. PRESSED BRICK CO. 423 191 U. S. Opinion of the Court. requires, in substance, that persons contracting with the United States for the construction of any public building, etc., shall be required, before commencing such work, to execute the usual penal bond, “with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract,” with a right on the part of the materialman to bring suit in the name of the United States for his use and benefit against the contractor and his sureties. The bond in this case contained two entirely distinct and separate obligations: First, that McIntyre should fulfill all the conditions and covenants of his contract, whatever changes in or additions to such contract might thereafter be made; and, second, promptly make payment to all persons supplying him labor and materials in the prosecution of the work. Of course, these covenants are to be read together and the latter interpreted in the light of the former. The question involved is whether the ordinary rule that exonerates the guarantor, in case the time fixed for the performance of the contract by the principal be extended, applies to a bond of this kind executed by a Guaranty Company, not only for a faithful performance of the original contract, but for the payment of the debts of the principal obligor to third parties. It is conceded that, by the general law of suretyship, any change whatever in the contract for the performance of which the guarantor is liable, made without his consent, such, for instance, as an extension of time for payment, if made upon sufficient consideration, discharges the guarantor from liability. Miller v. Stewart, 9 Wheat. 680; Smith v. United States, 2 Wall. 219; Reese n. United States, 9 Wall. 13. Counsel for the Brick Company argued with much persuasiveness that this rule of strictissimi juris, though universally accepted as applicable to the undertaking of an ordinary guarantor, who is usually moved to lend his signature by motives of friendship or expectation of reciprocity, and without pecun 424 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. iary consideration, has no application to the Guaranty Companies, recently created, which undertake, upon the payment of a stipulated compensation and as a strictly business enterprise, to indemnify or insure the obligee in the bond against any failure of the obligor to perform his contract. It is, at least, open to doubt, however, whether any relaxation of the rule should be permitted as between the obligee and the guarantor, which may have signed the guaranty in reliance upon the rule of strictissimi juris, and with the understanding that it is entitled to the ordinary protection accorded to guarantors against changes in the contract or extensions of the time of payment. The government wisely protects itself in these cases by providing in the bond that the obligation of the surety shall extend to all changes in or additions to the contract, which may thereafter be made—a clause which we have held extends to such changes as might be found advantageous or necessary in the plans or specifications, but does not extend to a change in the location of the structure to be built. United States v. Fred, 186 U. S. 309. But no provision was made in the bond in that case with respect to the obligation of the principal and his surety to make payment to all persons supplying labor or material to the contractor in the prosecution of his work. We do not, however, deem it necessary to express an opinion upon this subject, as we prefer to rest our decision upon the perculiar character of the covenant upon which this action is brought. In an ordinary guaranty the guarantor understands perfectly the nature and extent of his obligation. If he becomes surety for the performance of a building contract, he is presumed to know the parties, the terms of their undertaking, the extent and feasibility of the work to be done, the character and responsibility of the principal obligor, and his ability to carry out the contract. If he guarantees the payment of a particular debt, he usually knows the exact amount of the debt, the time when it matures, and something of the ability of the principal to meet it. If he becomes responsible for the payment of the principal’s debts generally, or lends his credit GUARANTY CO. v. PRESSED BRICK CO. 425 191 U. S. Opinion of the Court. to a proposed purchaser of goods, he knows the amount of his liability and the means of his principal to meet them. In such cases he contracts in reliance upon the exact terms of his principal’s undertaking, and has a right to suppose that no change will be made without his consent; and the courts have gone so far as to hold that any change will exonerate him, though it really redound to his benefit. This covenant, however, is inserted for an entirely different purpose from that of securing to the government the performance of the contract for the construction of the building. Inasmuch as neither the contractor nor his sub-contractors can secure themselves by a mechanic’s lienupon the proposed building, the government, solely for the protection of the latter, requires a covenant for the prompt payment of their claims, and the same security that it requires for the performance of the principal contract. In this covenant the surety guarantees nothing to the principal obligee—the government—though the latter permits an action upon the bond for the benefit of the sub-contractors. The covenant is made solely for their benefit. The guarantor is ignorant of the parties with whom his principal may contract, the amount, the nature, and the value of the materials required, as well as the time when payment for them will become due. These particulars it would probably be impossible even for the principal to furnish, and it is to be assumed that the surety contracts with knowledge of this fact. Not knowing when or by whom these materials will be supplied, or when the bills for them will mature, it can make no difference to him whether they were originally purchased on a credit of sixty days, or whether, after the materials are furnished, the time for payment is extended sixty days, and a note given for the amount maturing at that time. If a person deliberately contracts for an uncertain liability he ought not to complain when that uncertainty becomes certain. Stress is laid upon the fact that the defendant company guaranteed that the principal obligor should “promptly” make payment to his materialmen, and that this, properly inter 426 OCTOBER TERM, 1903. Opinion of the Court. 191U. S. preted, required that the contractor should pay at once upon the maturity of the bills, and that as such bills became due October 1, 1898, the promptness guaranteed required their immediate payment. We are not impressed with the force of this contention. If the word “promptly” has any particular significance in this connection, it is satisfied by such payment as the sub-contractor shall accept as having been promptly made; or perhaps it was intended to give him an immediate action upon the bond, in case such payment be not made with sufficient promptness. It was not intended, however, that the want of an immediate payment should be set up as a defence by the surety. As these bills are rarely paid the very day they become due, the narrow construction claimed would destroy the principal value of the security. The facts of this case do not call for an expression of opinion as to whether, if an unusual credit were given, and in the meantime the principal obligor had become insolvent, or the surety were otherwise damnified by the delay, it might not be exonerated; since neither of these contingencies supervened in this case, we are remitted to the naked proposition whether the giving of a customary credit, with no evidence of loss thereby occasioned, is sufficient to discharge the surety. We find no difficulty whatever in answering this question in the negative. The rule of strictissimi juris is a stringent one, and is liable at times to work a practical injustice. It is one which ought not to be extended to contracts not within the reason of the rule, particularly when the bond is underwritten by a corporation, which has undertaken for a profit to insure the obligee against a failure of performance on the part of the principal obligor. Such a contract should be interpreted liberally in favor of the sub-contractor, with a view of furthering the beneficent object of the statute. Of course, this rule would not extend to cases of fraud or unfair dealing on the part of a sub-contractor, as was the case in United States v. American Bonding & Trust Co., 89 Fed. Rep. 921, 925, or to cases not otherwise within the scope of the undertaking. FRENCH REPUBLIC v. SARATOGA VICHY CO. 427 191 U. S. Syllabus. Bonds containing the covenant in question are not common, though they have sometimes appeared in the state courts, and the construction here given them has been generally adopted, United States v. Hazzard, 53 N. Y. App. Div. 410, although these cases have generally turned upon the question whether the rights of the materialmen were affected by a change made in the contract by the principals. Dewey v. State, 91 Indiana, 173; Conn v. State, 125 Indiana, 514; Steffes v. Lemke, 40 Minnesota, 27; Doll v. Crume, 41 Nebraska, 655; Kaufmann v. Cooper, 46 Nebraska, 644; Griffith v. Rundle, 23 Washington, 453. Both of the questions certified are answered in the negative. THE FRENCH REPUBLIC v. SARATOGA VICHY SPRING CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 53. Argued November 4,1903.—Decided December 7,1903. 1. Geographic names often acquire a secondary signification indicative not only of the place of manufacture but of the name of the manufacturer or producer, and the excellence of the thing manufactured or produced, which enables the manufacturer or owner to assert an exclusive right to such name as against every one not doing business within the same geographical limits; and even as against them, if the name be used fraudulently for the purpose of misleading buyers as to the actual origin of the thing produced or palming off the productions of one person as those of another. 2. One otherwise entitled to the exclusive use of a name may lose the right of enforcing it by laches and acquiescing for a period of nearly thirty years in its use and by allowing the name to become generic and indicative of the character of the article. The rule of nullum tempus cannot be invoked in our courts in favor of a foreign government suing for the benefit of an individual which is its lessee. Qucere, and not decided, whether the rule could be invoked by a foreign government even when suing in its sovereign capacity. 428 191 IL S. OCTOBER TERM, 1903. Statement of the Case. It was not intended by Article VIII of the Industrial Property Treaty of June 11, 1887, to put citizens of a foreign country on a more favorable footing than our own citizens or to exempt them from ordinary defences which might be made by the party prosecuting. Under Article II of such treaty, the rights of the French Republic are the same and no greater than those of the United States would be. 3. Where it does not appear that there has been any actual fraud or an attempt to foist an article upon the public as that of the complainant and the articles differ in many respects, the use of a name, the exclusive use whereof is claimed by complainant, accompanied by a descriptive word equally prominent which differentiates it from the original name on a label wholly dissimilar in style, language and form, will not, after a long continued use without protest, justify the interference of a court, of equity to restrain its use. This was a bill in equity brought in the Circuit Court of the United States for the Northern District of New York, by the French Republic, as owner, and La Compagnie Fermière de 1’Etablissement Thermal de Vichy, (hereinafter termed the Vichy Company,) as lessee, of the springs of Vichy, France, against the Saratoga Vichy Spring Company, for the unlawful use of the word “Vichy,” claimed by the plaintiffs as a commercial name or trade-mark, and appropriated for the waters of the defendant, which are drawn from a certain natural spring at Saratoga, New York. Defence: That for fifty years mineral water has been sold throughout the world under the name of “Vichy,” and that such name has come to denote a type of water, namely, alkaline, non-cathartic, carbonated water, and does not stand for the water of any one spring; that defendant has never sold Vichy as and for that of the plaintiffs, nor in resemblance thereto, but has so labelled its water that the purchaser shall know that it is a natural mineral water of Saratoga; and that plaintiffs claim is stale. The bill was dismissed by the Circuit Court upon the ground that plaintiffs had no exclusive right to the use of the word “Vichy,” and that defendant had never been guilty of an attempt to palm off its waters as the imported article. 99 Fed. Rep. 733. On appeal, the Court of Appeals reversed FRENCH REPUBLIC v. SARATOGA VICHY CO. 429 191 U. S. Argument for Appellants. the decision of the Circuit Court, and granted an injunction against the use of one particular label, or “any other label in which the place of the origin of the water is not as plainly and prominently made known as the fact that it is named ‘ Vichy.’ ” 107 Fed. Rep. 459. Plaintiffs thereupon applied for a writ of certiorari, which was granted. Defendant made no similar application, but acquiesced in the decree and discontinued the offending label. Mr. Charles Bulkley Hubbell and Mr. Archibald Cox for appellants : In the absence of the defence relating to the use by the public in the United States of the word “Vichy,” the complainants would be entitled to an injunction restraining the use of the word “Vichy” to describe, or as the name of, a water not drawn from the springs at Vichy. Congress & Empire Spring Co. v. High Rock Congress Spring Co., 45 N. Y. 291; Radde v. Norman; L. R. 14 Eq. 348; Raggett v. Findlater, L. R. 17 Eq. 29 ; Apollinaris Co. v. Norrish, 33 L. T. R. N. S. 242; Dunbar v. Glen, 42 Wisconsin, 118; Anhueser-Busch Brewing Assn. v. Piza, 23 Blatch. 245; 24 Fed. Rep. 149; Lever Bros., Ltd., v. Pasfield, 88 Fed. Rep. 484; City of Carlsbad v. Kutnow, 71 Fed. Rep. 167; Hill v. Lockwood, 32 Fed. Rep. 389, 395; Newman v. Alford, 51 N. Y. 189; Brahan v. Beachim, 7 Ch. D. 848; Seixo v. Provezende, L. R. 1 Ch. 192; Wotherspoon v. Currie, L. R. 5 H. L. 508; Thompson v. Montgomery, A. C. (1891) 217; Shaver v. Heller & Merz Co., 108 Fed. Rep. 821; Pillsbury &c. Co. v. Eagle, 86 Fed. Rep. 608. The defence based on the uses of the word “Vichy” in the United States is valueless: the fact that the principal complainant is a sovereign power renders the defence of laches inapplicable. The French government, being the owner of the springs and the name appurtenant thereto, is materially interested in the subject matter of the suit and a proper party. Waterman v. Mackensie, 138 U. S. 252; Birdsell v. Shaliol, 112 U. S. 485; Paper Box Cases, 105 U. S. 766; Otis Bros. Mfg. Co. 430 OCTOBER TERM, 1903. Argument for Appellants. 191 U. S. v. Crane Bros. Mfg. Co., 27 Fed. Rep. 550; Story’s Eq. Pl. § 72, quoted and approved in Gregory v. Stetson, 133 U. S. 579; Foster’s Fed. Prac., vol. 1, § 42, p. 110; Chadbourne’s Executors v. Coe, 10 U. S. App. 78; Williams v. Bankhead, 19 Wall. 563. If the government of the United States were a complainant in this case, as the government of France is a complainant, there could be no imputation of laches. United States v. Kirkpatrick, 9 Wheat. 720; Dor v-.. Postmaster-General, 1 Pet. 318; United States v. Knight, 14 Pet. 301; Gibbons v. United States, 8 Wall. 269; Gibbons v. Chouteau, 13 Wall. 92; People v. Gilbert, 18 Johnson’s Reports, 229; Steele v. United States, 113 U. S. 128; United States v. Nashville &c. Ry. Co., 118 U. S. 120; United States v. Beebe, 127 U. S. 338; United States v. Insley, 130 U. S. 263; San Pedro &c. Co. v. United States, 146 U. S. 120; United States v. Thompson, 98 U. S. 486, 489; United States v. Van Zandt, 11 Wheat. 184; Lindsey v. Miller's Lessee, 6 Pet. 666; Gaussen v. United States, 97 U. S. 584. The reasons which are good to preclude the imputation of laches in a suit by the United States apply with equal force to a suit by the French Republic. The testimony relating to the irresponsible and untruthful usage of the word “ Vichy” should not be considered because it tends only to show a custom or usage which, being unreasonable, uncertain and grounded upon fraud, should not be recognized. United States v. Buchanan, 8 How. (U. S.) 83, 102; Tilley v. County of Cook, 103 U. S. 155, 163; Allen v. St. Louis Bank, 120 U. S. 20, 39; Vaughan v. Holden, Cro. Jac. 80; Taylor v. Carpenter, 2 Wood. & M. 1, and cases cited; Broad Bent v. Wilkes, Willes, 360; 5 Q. B. 701; Codman v. Evans, 5 Allen (Mass.), 308; 82 Am. Dec. 258; Tantistry, Davis’s Report, p. 78; Viner’s Abridgement, Customs (H), 24. Mere laches in a case of this character will not defeat the right to injunctive relief. McLean v. Fleming, 96 U. S. 258, Menendez v. Holt, 128 U. S. 514; Law. Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 549; Brown Chemical Co. v. Meyer, 139 U. 8. 546; Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 186, 202, FRENCH REPUBLIC v. SARATOGA VICHY CO. 431 191 U. S. Argument for Appellee. Saxlehner v. Eisner, 179 U. S. 19; ActiengeseUschaftt &c. v. Amberg, 109 Fed. Rep. 151; Bissel Chilled Plow Works v. T. M. Bissel Co., 121 Fed. Rep. 357, 375; Rodgers v. Philp, 1 0. G. 29; Browne on Trade-marks, 2d ed. p. 661; Wolfe v. Barnett, 24 La. Ann. 97; Filley v. Fassett, 44 Missouri, 173; Cohn v. Gottschalk, 14 Daly, 542; Manhattan Medicine Co. v. Wood, 4 Cliff. 461; Amoskeag Man. Co. v. Garner, 54 How. Pr. 298; Gillott v. Esterbrook, 47 Barb. 455; 48 N. Y. 374; Coleman v. Crump, 70 N. Y. 573; Sanders v. Jacobs, 20 Mo. App. 96; Amoskeag Mfg. Co. v. Spear, 2 Sandf. 599, S.C., 128 U. S. 524; Consolidated Fruit Jar Co. v. Thomas, Cox’s Manual, Case 665; Julian v. Hoosier Drill Co., 75 Indiana, 408; 128 U. S. 524; Sawyer v. Kellogg, 9 Fed. Rep. 601; Williams v. Adams, 8 Biss. 452; Le Page v. Russia Cement Co., 51 Fed. Rep. 941. The intent, of article 8 of the treaty in force between the Republic of France and the United States was to prevent the loss of foreign commercial names resulting from anticipatory use, infringement or spoliation. It is submitted that it should not be reasoned that the protection guaranteed by the treaty can be defeated by showing the existence of the very abuses it was framed to prevent. Saxlehner v. Eisner, 179 U. S. 19; United States v. Rauscher, 119 U. S. 407; Geofroy v. Riggs, 133 U. S. 258. Mr. Edgar T. Brackett for appellee : Defendant did not act in bad faith; in all its labels and advertising it distinguished itself by name, and its water from that sold by appellant; there has been no deceit toward the public; the name Saratoga Vichy makes no claim to being Vichy imported from France, and the only conclusion deducible from the name is that the water comes from Saratoga and has certain qualities like the Vichy. This is perfectly legitimate. Brown Chemical Co. v. Steams, 37 Fed. Rep. 360; the test is whether the name or the package deceives the public. Centaur 'Co. v. Marshall, 97 Fed. Rep. 785, 790; Fisher v. Blank, 138 N. Y, 244, 252. Unless there is evidence of actual deception 432 OCTOBER TERM, 1903. 191 U. S. Argument for Appellee. relief will not be granted. Jennings v. Johnson, 37 Fed. Rep. 364; Cohn v. Hoffman House, 7 Misc. Rep. N. Y. 461. Defendant’s bottles and packages are not indentical with complainants. The defendant in connection with its water did not intend by the word Vichy, to defraud complainants, nor deceive the public; it has never sold its water as, or for, complainant’s Vichy, nor in resemblance thereto, but all its water has been, in proper manner, labelled and marked, so that the purchaser shall know that the goods sold by the defendant is a natural mineral water of Saratoga, and not the water of the complainants. Pope v. Hart, 35 Barb. (N. Y.) 630-636; Cortland v. Herkimer, 44 N. Y. 22; Bayliss v. Cockroft, 81 N. Y. 363-371; Davis v. Mar vine, 160 N. Y. 269-276; Lally n. Emery, 54 Hun (N. Y.), 517-520, 521, 522. The word Vichy has become a generic name, with the significance stated, and the complainants have no trade-mark, or trade name, therein, or any right to legal protection in the exclusive use of it; a generic name, one merely descriptive of an article, of its qualities, ingredients, or characteristics, cannot be employed as a trade-mark. Canal Co. v. Clark, 13 Wall. 311-323; Air Brush Mfg. Co. v. Thayer, 84 Fed. Rep. 640; Brown Chemical Co. n. Stearns, 37 Fed. Rep. 360; Clotworthy v. Schepp, 42 Fed. Rep. 62; Columbia Mill Co. n. Alcorn, 150 U. S. 460; Corbin v. Gould, 133 U. S. 308-314; Sterling Remedy Co. v. Gorey, 110 Fed. Rep. 372; Vitascope Co. n. U. S. Phonograph Co., 83 Fed. Rep. 30; N. Y. Asbestos Mfg. Co. v. Ambler Asbestos &c., 99 Fed. Rep. 85; Barrett Chemical Co. v. Stearns, 176 N. Y. 27. Complainants have been guilty of laches, they having stood by and permitted the defendant to build up a business, and establish a good will that has become valuable, so that the granting of present relief would wreck, and absorb to the complainants, a business, which it has permitted to become valuable without complaint, and this is intolerable. If the complainants here have allowed the defendant to build up a profitable FRENCH REPUBLIC r. SARATOGA VICHY CO. 433 191 U. S. Argument for Appellee. business, on every fair principle, they should be estopped from wrecking it. Amoskeag Mfg. Co. v. Garner, 55 Barb. 151; Leggett v. Standard Oil Co., 149 U. S. 287, 294; Sullivan v. P. & K. R. R. Co., 94 U. S. 806, 811; McKnight v. Taylor, 1 How. 161,167; Godden v. Kimmell, 99 U. S. 201, 210; Brown v. Buena Vista, 95 U. S. 157, 161; Lewis v. Chapman, 3 Beav. 133; Landsdale v. Smith, 106 U. S. 391; Saxlehner case, 179 U. S. 19, 35; McLaughlin v. People’s Ry. Co., 21 Fed. Rep. 574; McIntyre v. Pryor, 173 U. S. 38, distinguishing McLean v. Fleming, 96 U. S. 245. Complainants cannot escape from this rule, because against the French Republic, as a sovereign power, there is no prescription, and laches cannot be predicated upon any lapse of time. The principle has no application here. When a foreign government comes into our courts, it stands, and must stand, on the precise plane of a private litigant. No public policy demands anything different, and a holding as asked by the appellants would be well nigh intolerable. And the treaty between the French Republic and the United States requires the same result. Compilation of Treaties in Force, 1899, p. 684. The French Republic has no interest in the controversy here, is not a proper party to the record, and her presence on the record, without interest and without right, cannot save the case, in which only the appellant company has any interest, from the result of the laches existing here. There is no reason why the French Republic should be a party, Kernochan v. N. Y. Elevated R. R. Co., 128 N. Y. 559, 566, and as a nominal party it cannot save any rights to the company. Maryland v. Baldwin, 112 U. S. 490; United States v. Beebe, 127 U. S. 338, 346; Waterman v. Mackenzie, 138 U. S. 252. The name Vichy is a geographical name, and as such complainants cannot insist on its exclusive use as a trade-name. Canal Co.v. Clark, 13 Wall. 311, 324; Columbia Mill Co. v. Alcorn, 150 U. S. 460; Koehler v. Sanders, 122 N. Y. 65, holding vol. cxci—28 434 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. the word “International” could not be used as a trade name* Connell v. Reed, 128 Massachusetts, 477, holding “ East Indian” could not be so used; Glendon v. Uhler, 75 Pa. St. 467, as to right to use Glendon, after a borough was created by that name. Amoskeag Mfg. Co. v. Spier, 2 Sandf. 599; Barrett Chemical Co. v. Steam, 176 N. Y. 27; Levy v. Waitt, 61 Fed. Rep. 1008; IU. Watch Co. v. Elgin Watch Co., 94 Fed. Rep. 667; Hoyt v. Lovett, 71 Fep. Rep. 173; Republic v. Schultz, 94 Fed. Rep. 500; Luyties v. Hollander, 30 Fed. Rep. 623. The trade-mark label as registered essentially relied on other features and disclaimed the word Vichy. Richter v. Anchor Remedy Co., 52 Fed. Rep. 455; Richter v. Reynolds, 59 Fed. Rep. 577; Pittsburgh Crushed Steel Co. v. Diamond Steel Co., 85 Fed. Rep. 637; Browne on Tr. Mks. 2d ed. § 678. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. This suit is brought to vindicate the right of plaintiffs to the exclusive use of the word “Vichy” as against the defendant, and incidentally as against all persons making use of the word to denote a water not drawn from the springs of Vichy, now owned by the French Republic and leased to the Vichy Company. The title of the French Republic to the springs of Vichy, a commune of France, is clearly established. Known for their medicinal qualities since the time of the Roman Empire and originally belonging to the feudal lord of Vichy, they were sold by him in 1444, together with the castle and its dependencies, to Pierre, Duke of Bourbon, in whose family they remained until 1531, when, for the treason of the Constable of Bourbon, they were confiscated by Francis I, and became the property of the crown, in whose possession they remained until 1790, when they were united to the public domain and afterwards passed to the French Republic and its successors, and were operated directly by the officers of the state until June, 1853, when they FRENCH REPUBLIC v. SARATOGA VICHY CO. 435 191 U. S. Opinion of the Court. were leased for a fixed rental to a firm of which the Vichy Company is the successor. The bottling and exportation of the waters was commenced before 1716, and in 1853 they begun to be exported directly to this country, the shipments in 1893 amounting to about 300,000 bottles. For many years they have been bottled and sold all over the world. The rights of the defendant originated from a spring discovered in 1872 in the township of Saratoga Springs, New York, the waters of which, though differing from the water of the Vichy Spring both in ingredients and taste, have a certain resemblance to them which suggested the use of the word “Vichy.” The water began to be bottled and sold in 1873 by the owners of the spring, and in 1876 became the property of the defendant, which has since sold the water, using various bottles, circulars and labels, containing more or less conspicuously displayed the word “Vichy.” 1. As the waters of Vichy had been known for centuries under that name there is reason for saying the plaintiffs had in 1872 acquired an exclusive right to the use of the word “Vichy” as against every one whose waters were not drawn from the springs of Vichy, or at least, as observed by a French court, “from the same hydrographical region which may be called generally the basin of Vichy.” True the name is geographical; but geographical names often acquire a secondary signification indicative not only of the place of manufacture or production, but of the name of the manufacturer or producer and the excellence of the thing manufactured or produced, which enables the owner to assert an exclusive right to such name as against every one not doing business within the same geographical limits; and even as against them, if the name be used fraudulently for the purpose of misleading buyers as to the actual origin of the thing produced, or of palming off the productions of one person as those of another. Elgin -National Watch Co. v. Illinois Watch Co., 179 U. S. 665; Newman v. Alvord, 51 N. Y. 189; Lee v. Haley, 5 Ch. App. 155; Wotherspoon v. Currie, L. R. 5 H. L. 508; 436 191 U. S. OCTOBER TERM, 1903. Opinion of the Court. Braham v. Beachim, 1 Ch. Div. 848; Thompson v. Montgomery, 41 Ch. Div. 35; Seixo v. Provezende, L. R. 1 Ch. App. 192. In a French case arising in this connection, and brought by the Vichy Company against a rival company owning two springs in the same neighborhood, complaining that by the composition of its name and the arrangement of its labels, as well as by the tenor of its different appeals to the public, the company owning these springs had created a damaging confusion between the two companies and their product, it was held that, while the rival company had a right to the use of the word “Vichy,” it was bound to state the name of its springs, the place where they were located as “near Vichy” in letters identical in height and thickness as those of the word Vichy in their advertisements and labels, and also the name of their springs in letters at least half their size—in other words, it was bound to adopt such precautions as would fully apprise the public that it was not purporting to sell the waters of the original Vichy Company, though being in the same basin, they were entitled to use that designation. 2. A serious difficulty in the way of enforcing an exclusive right on the part of the plaintiffs to the use of the word Vichy is their apparent acquiescence in such use by others. For thirty years the defendant, the Saratoga Vichy Company, has been openly and notoriously bottling and selling its waters under the name of the “Saratoga Vichy” until its competition has become an extremely serious matter to the plaintiffs, whose importations began in 1853 with only 316 bottles, which by the year 1893 had increased to 298,500 bottles. The entire shipment of the Vichy Company amounted in 1896 to nearly ten millions of bottles. Under such circumstances, and in view of the further facts that other waters were openly manufactured and sold in this country under the name of Vichy, and that a manufactured water was dealt out by the glass under that name in innumerable soda water fountains throughout the country, as shown by the record in this case, it is impossible to suppose that the plaintiffs were not aware of these infringe- FRENCH REPUBLIC v. SARATOGA VICHY CO. 437 191 U. S. Opinion of the Court. merits upon their exclusive rights. It argues much more than ordinary indifference and inattention to suppose that the large amount of this rival water could be advertised and sold all over the country without the knowledge of their agents, who would naturally be active in the protection of their own interests, if not the interests of their principals. In fact, they had allowed the name to become generic and indicative of the character of the water. With all these facts before them, and with the yearly increasing sales and competition of the defendant company, no move was made against them for twenty-five years, and until 1898, when this bill was filed. A clearer case of laches could hardly exist. Saxlehner v. Eisner, 179 U. S. 19, 36. It is said, however, that the doctrine of laches has no application to the neglect of the government to pursue trespassers upon its rights, and that the French Republic is entitled to the benefit of that rule. It is at least open to doubt whether the maxim nullum tempus, applicable to our own government, can be invoked in behalf of a foreign government suing in our courts. The doctrine is one of public policy, and is based upon the assumption that the officers of the government may be so busily engaged in the ordinary affairs of state as to neglect a vindication of its interests in the courts. Whether this exemption can be set up by a foreign government in the prosecution of suits against our own citizens—in other words, whether the latter are not entitled to the benefit of the ordinary defences at law, is a question which does not necessarily arise in this case, and as to which we are not called upon to express an opinion. However this may be, it is clear that the rule of nullum tempus cannot be invoked in this case. While the French Republic is nominally the plaintiff, its interest in the litigation is little, if anything, more than nominal. For fifty years it has ceased to operate these springs through its own agents, since in 1853 the then Emperor of the French leased them to the predecessors of the Vichy Company, which has since that time bottled and sold the water under successive leases as its own, upon the payment of an annual rental of 100,000 francs 438 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. to the government. Its present lease does not expire until 1934. It thus appears that the French Republic has had no real interest in the product of the springs for fifty years, and that it can have no such interest for thirty years to come. Its only title to sue, then, is in a possible depreciation of the rental value of this property after the lapse of the present lease, caused by the unlawful use of the name Vichy by the defendant. This is quite too inappreciable to answer the defence of laches, and, indeed, it is doubtful whether it justifies its joinder as co-plaintiff in the suit. To hold that the French Republic appears in this litigation to be suing for the use and benefit of the Vichy Company would more accurately describe their relations. In such cases, either where the government is suing for the use and benefit of an individual, or for the prosecution of a private and proprietary instead of a public or governmental right, it is clear that it is not entitled to the exemption of nullum tempus, and that the ordinary rule of laches applies in full force. United States v. Beebe, 127 U. S. 338; New Hampshire v. Louisiana, 108 U. S. 76; Maryland v. Baldwin, 112 U. S. 490; United States v. Des Moines &c. Co., 142 U. S. 510, 538; Curtnerv. United States, 149 U. S. 662; United States v. American Bell Telephone Co., 167 U. S. 224, 264; Miller v. The State, 38 Alabama, 600; Moody v. Fleming, 4 Georgia, 115. The plaintiffs, then, are put in this dilemma: If the Republic be a necessary party to the suit here, as it sues in its private and proprietary capacity, the defence of laches is available against it. Upon the other hand, if it be an unnecessary party, the defence of laches may certainly be set up against the Vichy Company, its co-plaintiff. We do not think the position of the plaintiffs in this connection is affected or strengthened by the eighth article of the treaty of June 11,1887, with France and other nations, known as the Industrial Property Treaty, (Comp, of Treaties in Force 1899,684,) which declares that “ the commercial name shall be protected in all the countries of the Union without obligation of deposit, FRENCH REPUBLIC v. SARATOGA VICHY CO. 439 191 U. S. Opinion of the Court. whether it forms part or not, of a trade or commercial mark.” That article was evidently designed merely to protect the citizens of other countries in their right to a trade-mark or commercial name, and their right to sue in the courts of this country, as if they were citizens of the United States. It could never have been intended to put them on a more favorable footing than our own citizens, or to exempt them from the ordinary defences that might be made by the party prosecuting. This is made the more apparent from Art. II of the treaty, which reads as follows: “The subjects or citizens of each of the contracting States shall enjoy, in all the other States of the Union, so far as concerns patents for inventions, trade or commercial marks, and the commercial name, the advantages that the respective laws thereof at present accord, or shall afterwards accord to citizens or subjects. In consequence they shall have the same protection as these latter, and the same legal recourse against all infringements of their rights, under reserve of complying with the formalities and conditions imposed upon subjects or citizens by the domestic legislation of each State.” If there were any doubt about the rights of the plaintiffs under the eighth article they are completely removed by the wording of the second. The rights of the French Republic are the same, and no greater under this article than those of the United States would be. 3. But conceding that the defence of laches would not be available in a case of actual fraud, or an attempt to foist upon the public the waters of the defendant as those of the orginal Vichy spring, McIntire v. Pryor, 173 U. S. 38; Saxlehner v. Eisner &c. Co., 179 U. S. 19; Prevost v. Gratz, 6 Wheat. 481,497; McLean v. Fleming, 96 U. S. 245; Menendez v. Holt, 128 U. S. 514, we find but little evidence of such purpose in this record. The two waters not only differ in their ingredients and taste, but the French Vichy is a still, and the Saratoga Vichy, as well as the other American Vichies, an effervescing, water. There is no attempt made whatever by the defendant to simulate the 440 191 U. 8. OCTOBER TERM, 1003. Opinion of the Court. label of the plaintiffs upon the body of the bottle. The word Vichy is never used by the defendant alone, but always in connection with Saratoga. The two labels not only differ wholly in their design and contents, but even in their language, that of the plaintiffs being wholly in French. Plaintiffs’ label contains the word Vichy prominently displayed with a picture of the thermal establishment where it is bottled, and the name of the particular spring. Defendant’s label contains the two words, “Saratoga Vichy,” in type of the same size and displayed with equal prominence, and a statement that the Saratoga Vichy is far superior to the imported Vichy. It is true that in 1896 a small label was attached to the neck of the bottle upon which the name Vichy was more prominent than that of Saratoga. This label was printed upon a white background, with the word Vichy in prominent red letters, while the word Saratoga appeared in much smaller black letters included between the extended “V” and “Y” of the word Vichy. The Circuit Court considered this to be immaterial, and thought it inconceivable that any one of ordinary perception could be induced to buy this water as the imported Vichy. A majority of the Court of Appeals, however, while agreeing with the Circuit Court as to the total dissimilarity of the main labels, thought a purchaser might be deceived by the neck label into buying the Saratoga for the imported article, and in that particular reversed the Circuit Court, and enjoined the use of the neck label, or of any other label in which the place of the origin of the water was not as plainly and as prominently made known as the word Vichy. As the defendant did not apply for a certiorari, and has acquiesced in the decree of the Circuit Court of Appeals by changing the offending label, we are not called upon to express an opinion as to the deceptive character of this label. Hubbard v. Tod, 171 U. S. 474. It was said by this court in Canal Company v. Clark, 13 Wall. 311,322, “ In all cases where rights to the exclusive use of a trademark are invaded, it is invariably held that the essence of the wrong consists in the sale of goods of one manufacturer or vendor NORFOLK & WEST. RY. CO. v. SIMS. 441 191 U. S. Statement of the Case. as those of another; and that it is only when this false representation is directly or indirectly made that the party who appeals to a court of equity can have relief.” Applying this doctrine to the case under consideration we are clearly of the opinion that there is no such similarity in the labels as at present used, and that there is no such fraud shown in the conduct of the defendant as would authorize us to say that plaintiffs are entitled to relief. The decree of the Court of Appeals is therefore Affirmed. NORFOLK AND WESTERN RAILWAY CO. v. SIMS. ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CARO- LINA. No. 74. Argued November 12, 1903.—Decided December 7,1903. The States have no power to tax directly, or by license upon the importer, goods imported from foreign countries or other States, while in their original packages, or before they have become commingled with the general property of the State and lost their distinctive character as imports. In cases not arising under the police power, where an article is made in one State and shipped in its original package in pursuance of an order to a person in another State, to be there delivered on payment of the agreed price, the sale is actually made in the former State and the seller cannot by reason of the delivery of the article and passing of the title of the property in the latter State be subjected to a license tax imposed by it on persons engaged in the sale of similar articles within that State. This was a controversy between the sheriff of Person County, North Carolina, on the one part, and the Railway Company and Mrs. 0. L. Satterfield on the other, which might have been the subject of a civil action, and which the parties agreed to submit, under the code of North Carolina, to the judge of the Superior Court upon the following facts, and upon the question the liability of the defendants for a license tax under section 52 of “An act to raise revenue,” ratified March 15, 1901. 442 OCTOBER TERM, 1903. Statement of the Case. 191U. S. Laws of 1901, p. 116. The material part of the section reads as follows: “Every manufacturer of sewing machines, and every person or persons or corporation, engaged in the business of selling the same in this State, shall, before selling or offering for sale any such machine, pay to the state treasurer a tax of $350 and obtain a license, which shall operate for one year from the date of the issue.” The Norfolk and Western Railway Company, a Virginia corporation, operates a railroad from its main line at Lynchburg, Virginia, via Roxboro in Person County, North Carolina, to Durham, in the same State. This company had itself complied with the revenue act of 1901, and paid a license tax for the privilege of carrying on its business as a common carrier within the State of North Carolina. Sears, Roebuck & Company, (incorporated,) of the city of Chicago, are manufacturers and dealers in sewing machines at Chicago, Illinois. The defendant, Mrs. Satterfield, a resident of Person County, N. C., about November 1, 1901, sent an order by mail to Sears, Roebuck & Co., for a sewing machine, which was shipped by them as railroad freight from Chicago to Mrs. Satterfield at Roxboro, the railway company at Chicago issuing, on behalf of itself and its connecting railroad lines, a through bill of lading therefor, under which the sewing machine was to be delivered to Mrs. Satterfield on surrender of the bill of lading and payment of freight charges to the delivering carrier, the Norfolk and Western Railway Co. The bill of lading was sent by Sears, Roebuck & Co. by express, C. O. D., to the express agent at Roxboro, who received from Mrs. Satterfield the price of the sewing machine, and delivered the bill of lading to her. The express agent and the railway station agent were one and the same person. Mrs. Satterfield having paid the purchase price, presented the bill of lading to the station agent, tendered the freight charges, and demanded the delivery of the sewing machine. NORFOLK & WEST. RY. CO. v. SIMS. 443 191 U. S. Argument for Plaintiff in Error. The railway company was willing and would have delivered the same had not the plaintiff, the sheriff and ex officio tax collector of Person County, insisted that Sears, Roebuck & Co. could not sell the machine to Mrs. Satterfield without paying the license tax of $350, and forbade the delivery of the machine until the tax was paid, and thereupon levied upon the machine for such tax. He also insisted that the railway company would, by delivering the machine, be acting as the agent of Sears, Roebuck & Co., and would be liable to prosecution for misdemeanor in aiding and abetting them in an unlawful sale of the sewing machine. It also appears in the agreed statement of facts that other machines were sent by the same consignors to various purchasers in North Carolina, upon the lines of other interstate railroads, and were delivered upon the presentation of other bills of lading under the same conditions as above described. The court found that Sears, Roebuck & Co. were indebted to the State for $350 license tax; that the levy upon the machine, was lawful and valid, and plaintiff was ordered to sell the machine and apply the proceeds to the payment of the tax. The judgment was affirmed by the Supreme Court of the State. 130 N. C. 556. Mr. Theodore W. Reath and Mr. William A. Guthrie, with whom Mr. Joseph I. Doran was on the brief, for plaintiff in error. . The sale of a sewing machine by a citizen of Illinois to a citizen of North Carolina upon a mail order, the order being received in Illinois and the machine being sent from Illinois to North Carolina, C. 0. D.,.is commerce among the several States which cannot be regulated or taxed by the States. The power of Congress, under section 8, article I, of the Constitution, is exclusive to regulate such a transaction. The act is not a police regulation but one to raise revenue. 0 Neil v. Vermont, 144 U. S. 323, was under police power and oes not apply. Neither do Howe Machine Co. v. Gage, 100 • S. 676, or Emert v. Missouri, 156 U. S. 296, which involved 444 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 U. S. the state’s right to exact peddler’s licenses. Osborne v. Mobile, 16 Wall. 479, has practically been overruled by later decisions. This case is controlled by Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U. S. 100; Brennan v. Titusville, 153 U. S. 289; Caldwell v. North Carolina, 187 U. S. 622; Bowman v. Chicago & N. W. R. Co., 125 U. S. 465; Asher v. Texas, 128 U. S. 129; Lyng v. Michigan, 135 U. S. 161; McCall v. California, 136 U. S. 104; Crutcher v. Kentucky, 141 U. S. 47; Stockard v. Morgan, 185 U. S. 24. The latest well-considered decisions of the courts of last resort of the several States have adopted the rules settled by this court, and the state courts have themselves struck down, without the necessity of an appeal to this court, those revenue or alleged police measures of the several States which, as in the case at bar, impose a burden upon interstate commerce. State v. Hanaphy, 90 N. W. Rep. 601; State v. Hickox, 68 Pac. Rep. 35. Mr. Robert D. Gilmer, Attorney General of the State of North Carolina, and Mr. James E. Shepherd for defendant in error. The Chicago corporation sold or offered to sell sewing machines in North Carolina without a license as required by the laws of that State, and thereby became indebted to the State in the sum of $350, it being the amount of the license tax. The transactions amounted to a sale in North Carolina, and the sale was not made in Chicago, but was only an executory contract which was to be completed in North Carolina, and that until the compliance with the conditions imposed, to-wit, the payment of the purchase money evidenced by the bill of lading, the property Was still in and under the control of the said company. The sale was to be completed here through the agents of the said Chicago company. This is an attempt to evade the revenue law of the State, and the railroad and express agents concerned in all of these transactions (who were one and the same person) were the agents NORFOLK & WEST. RY. CO. v. SIMS. 445 191 U. S. Argument for Defendant in Error. of the Chicago company, and it was only through them as such agents of the said Chicago company, that a complete sale of machines was effected. The transaction is, in effect, as between these parties (the bill of lading not having been transferred to third parties), a “C. 0. D.” transaction. No matter what it is called, the agreement here was that the sale was not to be completed until the price was paid. Hutchins on Carriers, §§ 390 et seq.; Tiedeman on Sales, §§85 et seq. This case is controlled by O’Neil v. Vermont, 144 U. S. 324; and see also Dows v. Nat. Ex. Bank, 91 U. S. 631; Crook v. Cowan, 64 N. Car. 743; Ober v. Smith, 78 N. Car. 313; State v. Graves, 121 N. Car. 632; State v. Wernwag, 116 N. Car. 1061, distinguished. The Chicago corporation, having incurred the liability for taxes, its property was subject to levy by the defendant in error, and the machine in question was its property, the levy having been made by defendant in error before the terms had been complied with by payment and the delivery of the bill of lading. The machine in question was the property of the Chicago company at the time of the levy, because payment and delivery of the bill of lading had not been made and it was subject to levy for the taxes due by said owner to the State for previous similar violations of the law as well as for the violation in the present transaction. The levy was not a violation of the law as to interstate commerce. The levy upon a debtor’s property in the possession of a railroad company is not inhibited but can surely be made, and railroad companies, after the transit is ended, cannot make their warehouses places of refuge against the enforcement of legal process. The carrier is not obstructed; its duty has been performed, and it holds the machines in its warehouse as the agent of the Chicago company, and such agency concerns alone the completion of a sale by the receipt of the purchase money and delivery. It has nothing whatever to do with the carriage of 446 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. the goods and no interstate commercial element enters into the matter. 2 Shinn on Attachment, §578; Freeman on Executions, § 160 ; Schouler on Bailment and Carriers, § 498. As the goods were actually in North Carolina no Federal question arises. O'Neil v. Vermont, 144 U. S. 324; State v. Akers, 132 U. S. 554. Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. To the ordinary mind it seems a somewhat startling proposition that a manufacturing corporation, located and doing its main business in a distant city, having no manufactory in North Carolina, no stock in trade, no place for the sale of its goods there, and no agent authorized to sell them, can be compelled to take out a license required of all those “ engaged in the business of selling,” from the mere fact that it had done what hundreds of others were doing daily—sent a single machine there upon a written order of a customer and under an ordinary C. 0. D. consignment. If this may be done, the revenues of every State may be largely increased by adopting a similar system, since a large part of the business of retail shops in the principal cities is done by orders received, filled and the goods delivered in the same way. Of course, it is impossible to estimate the number of business houses in other States which are accustomed to collect their accounts in this manner. If this were the law it would also follow that the consignor of every cargo of wheat sent to New York for export under a bill of lading, accompanied by a draft for the payment of the money in the usual method, might be compelled to take out a license in the State of New York as a dealer in produce, notwithstanding that all the real business was done in Chicago or North Dakota. . So, too, what the State may do directly it may authorize its municipalities to do, and if, under legislative sanction, each o the large towns in the State of North Carolina saw fit to adopt NORFOLK & WEST. RY. CO. v. SIMS. 447 191 U. S. Opinion of the Court. a similar license tax, the consequence would be, not a simple interference with interstate commerce, but a practical destruction of one important branch of it. While it may be entirely true that the property in the thing sold does not pass under a C. 0. D. consignment until delivery of the goods and payment to the carrier, and hence it may be said that the sale is not completed until then, yet as matter of fact the bargain is made and the contract of sale completed as such, when the order is received in Chicago, and the machine shipped in pursuance thereof. A sale really consists of two separate and distinct elements: first, a contract of sale, which is completed when the offer is made and accepted; and, second, a delivery of the property which may precede, be accompanied by, or follow the payment of the price, as may have been agreed upon between the parties. The substance of the sale is the agreement to sell and its acceptance. That possession shall be retained until payment of the price may or may not have been a part of the original bargain, but in substance it is a mere method of collection', and we have never understood that a license could be imposed upon this transaction, except in connection with the prior agreement to sell, although in certain cases arising under the police power it has been held that the sale is not complete until delivery, and sometimes not until payment. Were it not for the opinion of the Supreme Court of North Carolina, we should have said that the words “ engaged in the business of selling the same within the State ” had reference to the word selling” in its popular and ordinary sense, of selling from a stock on hand or upon a special order to a manufacturer, and not to a mere method of collecting the money; but, however this may be, it is evident the state courts could not give it a construction which would operate as an interference with interstate comjnerce, and that upon this question the opinion of this court is controlling. The cases relied upon by the State do not support its contention. In Machine Co. v. Gage, 100 U. S. 676, a Connecticut 448 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. corporation, manufacturing sewing machines at Bridgeport, had an agency at Nashville, Tennessee, from which an agent was sent out to sell machines. It was held that he was subject to a license tax upon “all peddlers of sewing machines, without regard to the place of growth or produce of material or manufacture.” As it appeared that the sale was made, and wholly made, in the State of Tennessee, and apparently from a stock kept in that State, through an agent of the company, the case is not in point. This case was followed, upon a similar state of facts in Emert n. Missouri, 156 U. S. 296. The case most earnestly pressed upon attention, however, is that of O'Neil v. Vermont, 144 U. S. 323. This was a prosecution before a justice of the peace for selling, furnishing, and giving away intoxicating liquors. The defendant was a dealer in liquors at Whitehall, New York, and was in the habit of receiving at his store orders for liquor from Vermont, accompanied by a jug to contain the liquor; and the liquors, as in this case, were sent under a C. 0. D. consignment. It was held by this court that, as the only question considered by the Supreme Court in its opinion was whether the liquor was sold by O’Neil at Rutland, or at Whitehall, and the court arrived at the conclusion that the completed sale was in Vermont, that this conclusion did not involve any Federal question, and the writ of error was dismissed. Mr. Justice Blatch-ford took express pains to say that11 no point on the commerce clause of the Constitution of the United States was taken in the county court, ... or considered by the Supreme Court of Vermont.” The case was put by the Supreme Court of the State solely upon its police power. “If,” said that court, “an express company or any other carrier or person, natural or corporate, has in possession within this State an article in itself dangerous to the community, or an article intended for unlawful or criminal use within the State, it is a necessary incident of the police powers of the State that such article should be subject to seizure for the protection of the community.” NORFOLK & WEST. RY. CO. v. SIMS. 449 191 U. S. Opinion of the Court. It will thus be seen that the Supreme Court of Vermont disclaimed the decision of the very question involved in this case as to the power of the States to interfere with interstate commerce by taxation of the thing imported, and the writ of error was dismissed upon the ground that no Federal question was presented for its decision, and none was necessary to the determination of the case. Mr. Justice Field, in his dissenting opinion, thought the commerce clause of the Constitution was involved, and that the transaction was a clear interference with commerce between the States. Upon the other hand, for the past seventy-five years and ever since the original case of Brown v. Maryland, 12 Wheat. 419, we have uniformly held that States have no power to tax directly or by license upon the importer, goods imported from foreign countries or other States, while in their original packages, or before they have become commingled with the general property of the State and lost their distinctive character as imports. In that case a law of Maryland required importers to take out a license before they could be permitted to sell their imported goods. That was declared to be void not only as a tax upon imports, but as an infringement upon the power of Congress to regulate commerce. The case is one of the most important ever decided by this court, and has been adhered to by a uniform series of decisions since that time. In Robbins v. Shelby Taxing District, 120 U. S. 489, it was declared that a tax upon commercial agents not having a business house in the State, was unconstitutional as a regulation of commerce when applied to soliciting the sale of goods on behalf of individuals or firms doing business in another State, Mr. Justice Bradley remarking, apropos of what was subsequently decided in O’Neil v. Vermont, “that the only way in which commerce between the States can be legitimately affected by state laws, is when, by virtue of its police power, and its juris-iction over persons and property within its limits, a State provides for the security of the lives, limbs, health and comfort 0 persons and protection of property; or when it does those vol. oxci—29 450 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. things which may otherwise incidentally affect commerce, such as . . the imposition of taxes upon all property within the State, mingled with and forming part of the great mass of property therein. But in making such internal regulations a State cannot impose taxes . . . upon property imported into the State from abroad, or from another State, and not yet become part of the common mass of property therein, . . . and no regulations can be made directly affecting interstate commerce.” This case was affirmed in Asher v. Texas, 128 U. S. 129. The same rule was applied in Welton v. Missouri, 91 U. S. 275, and Walling v. Michigan, 116 U. S. 446, to a statute requiring the payment of a license from persons dealing in merchandise, not the growth, produce or manufacture of the State, and requiring no such license from persons selling goods grown, produced or manufactured within the State. In McCall v. California, 136 U. S. 104, a license tax imposed upon the agent of a railroad between Chicago and New York soliciting business in San Francisco, was held to be void. To the same effect are Crutcher v. Kentucky, 141 U. S. 47; Brennan v. Titusville, 153 U. S. 289, and Stockard v. Morgan, 185 U. S. 27. Finally, in Caldwell v. North Carolina, 187 U. S. 622, another of the same line of cases, it was held that a city ordinance imposing a license upon every person engaged in the business of selling or delivering picture frames, etc., was an interference with interstate commerce, so far as applied to picture frames made in other States and shipped to an agent in the State of North Carolina; and that the transaction was not taken out of the protection of the commerce clause by the fact that the agent placed the pictures in their proper frames, and delivered them to the persons ordering them. Most of the prior cases are noticed in this opinion. Indeed, the cases upon this subject are almost too numerous for citation, and the one under consideration is clearly con trolled by them. The sewing machine was made and sold in another State, shipped to North Carolina in its original pack SCHUYLER NATIONAL BANK v. GADSDEN. 451 191U. S. Syllabus. age for delivery to the consignee upon payment of its price. It had never become commingled with the general mass of property within the State. While technically the title of the machine may not have passed until the price was paid, the sale was actually made in Chicago, and the fact that the price was to be collected in North Carolina is too slender a thread upon which to hang an exception of the transaction from a rule which would otherwise declare the tax to be an interference with interstate commerce. The judgment of the Supreme Court of North Carolina is therefore reversed and the case remanded to that court for further proceedings not inconsistent with this opinion. Mr. Justice Holmes did not participate in the decision of this case. • SCHUYLER NATIONAL BANK v. GADSDEN. ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA. No. 50. Argued November 3,1903.—Decided December 7,1903. Where usurious interest has been paid to a national bank the remedy afforded by sec. 5198, U.S. Revised Statutes, is exclusive and is confined to an independent action to recover such usurious payment. Hazettine v. Central National Bank, 183 U. S. 118. A claim that usurious interest has been paid on a debt to a national bank secured by mortgage on real estate given by the debtors to an individual for the benefit of the bank cannot be asserted under the state law in foreclosure proceedings in the state courts. Where the state law does not forbid an agent from taking security for the benefit of a principal the taking of real estate security by the president of a national bank for a debt due to the bank is in legal effect the taking o such security by the bank itself. e provisions of the United States statutes forbidding the taking of real es ate security by a national bank for a debt coincidently contracted do not operate to make the security void but simply subject the bank to e called to account by the government for exceeding its powers. Bogan County v. Townsend, 139 U. S. 67. 452 191 U. S. OCTOBER TERM, 1903. Statement of the Case. On August 8, 1890, George Thrush, one of the defendants in error, being indebted to the Schuyler National Bank, one of the plaintiffs in error, for money then and theretofore lent, executed a note to the bank for the sum of $5000, payable six months after date. As collateral security for the payment of this note, Thrush and his wife executed a note and mortgage for $5000 to one Sumner, who was at that time the president of the bank. The collateral note and mortgage were delivered to the bank and by it retained. The note made to the bank was renewed by the bank from time to time, and various payments of interest and on account of the principal were made to the bank, the principal sum thereby being reduced in March, 1894, to $3000. In that month and year a new note was executed to the bank for the principal sum then due and interest, in all, $3229. No money dealings were had at any time between either Thrush and his wife and Sumner individually. James Gadsden, one of the defendants in error, sued Thrush and his wife in a Nebraska court to foreclose an asserted mortgage on real estate. Junior encumbrancers of record were made parties defendant, among them being Sumner, to whom the mortgage for $5000, securing the collateral note previously referred to, had been executed. He answered, and by crosspetition asserted the lien of the mortgage, which he alleged was made to him as trustee, for the benefit of the Schuyler National Bank; he prayed foreclosure of such lien and the payment of the indebtedness to the bank, stated to be $3229 and interest. The Schuyler National Bank was subsequently made a party defendant; and, by answer and cross-petition, claimed the benefit of the mortgage to Sumner, securing the indebtedness just stated, and joined in the prayer for foreclosure. Separate answers, similar in tenor, were filed on behalf of Thrush and his wife, in which were averred, in numerous paragraphs, many payments to the bank of usunou interest during a period of five years, and in substance it was prayed that the amount of such payments might be deducted SCHUYLER NATIONAL BANK v. GADSDEN. 453 191U. S. Statement of the Case. from the principal sum claimed by the bank to be due. In each of the answers was contained the following paragraph: “That the said note of $5000 of the defendants George Thrush and Mattie N. Thrush, together with the mortgage securing the same, were not executed and delivered to said William H. Sumner upon any consideration whatsoever, but the same are simply held by said defendant as collateral security to the amount owing by the defendant, George Thrush, on the said indebtedness now being evidenced by said $3229 note, in this, that the said note of $5000 and the mortgage securing the same were executed and delivered by this defendant and Mattie N. Thrush to said Sumner for the purpose that said Sumner might protect therewith said bank on account of the indebtedness of said George Thrush to said bank, and said note and mortgage were accepted by said Sumner with the knowledge and consent of said bank, and because said bank refused to take said mortgage and said Sumner in nowise protected said loan or advanced any money thereon and at the time of the maturity thereof, by virtue of the premises and the payments of usurious and illegal interest made thereon, as aforesaid, there was due and owing, after deducting the payments made upon the principal and the said payments of usurious interest, the small balance, to wit, of $252.20, and for the aforesaid balance the said defendant Sumner is entitled to a lien upon said premises under and by virtue of said mortgage and promissory note of $5000.” A reply was filed to these answers. It was therein stated in substance that most of the alleged usurious interest had been paid to the bank more than two years before the commencement of the action, and that the remaining interest payments were not in excess of the rate allowed by law to be contracted for. The pleading concluded with the claim “that this court 1 as no jurisdiction in this action to consider the question raised m.said answer to each and every item of interest mentioned in said answer as paid to said Schuyler National Bank; that said items are not proper items of set-off or counter-claim and can- 454 OCTOBER TERM, 1903. 191 U. S. Argument for Plaintiff in Error. not be adjudicated except in a suit brought expressly for that purpose under the provisions of section 5198 of the Revised Statutes of the United States.” A decree was entered determining the priority of liens between the respective lienholders and providing for a foreclosure. Among other things it was adjudged that the mortgage to Sumner was executed and delivered for the benefit of the bank, and that the bank was entitled to the proceeds of the note and mortgage. As to the defence of usury set up in the answers it was decided that, as the transaction was one with a national bank, it was governed by the laws of the United States, and, therefore, recovery by way of set-off of the usurious interest alleged to have been paid was refused. Recovery of the interest embraced in the claim of the bank was, however, denied, and judgment was entered only for the principal sum found to be due and owing to the bank. On appeal, the Supreme Court of Nebraska reversed the judgment of the District Court in the particular just noticed, and remanded the cause with directions “to ascertain the amount of money advanced to Thrush by the Schuyler National Bank, deduct therefrom all payments, whether of principal or interest, and award foreclosure for the remainder, if any.” 56 Nebraska, 565. On a rehearing, the appellate court reaffirmed its previous decision. 58 Nebraska, 340. Thereupon a writ of error was allowed from this court, which was subsequently dismissed for want of jurisdiction. 179 U. S. 681. Subsequently the state District Court entered a judgment in conformity with the mandate of the Supreme Court of Nebraska, and such judgment was affirmed on appeal. 63 Nebraska, 881. The present writ of error was thereupon allowed. Mr. Charles J. Phelps for plaintiff in error: The penalties imposed by §§ 5197, 5198, U.S.Rev. Stat., are exclusive. F. & M. Bank v. Deering, 91 U. S. 29. A national bank may take real estate for a past due debt; State Nat. SCHUYLER NATIONAL BANK v. GADSDEN. 455 191 U. S. Argument for Defendants in Error. Bank v. Flathers, 45 La. Ann. 75; or present or future debts; Winton v. Little, 94 Pa. St. 64. No one but the government can complain. Bank v. Whitney, 103 U. S. 99; Union Nat. Bank v. Matthews, 98 U. S. 621; Bank v. Haire, 36 Iowa, 443; Swope v. Lefling well, 105 U. S. 3; Reynolds v. National Bank, 112 U. S. 405; Fortier v. National Bank, 112 U. S. 439; Wheney v. Hale, 77 Missouri, 20. The debt is the claim, the mortgage is a mere incident. Webb v. Hoselton, 4 Nebraska, 318. Estoppel must be pleaded. B. & M. R. Co. v. Harris, 8 Nebraska, 140. To constitute equitable estoppel it must appear the facts were known to the party against whom it is urged and unknown to the party urging it. Nash v. Bakes, 58 N. W. Rep. 706; Bigelow on Estoppel, 570, 669 et seq. In Haseltine v. Bank, 183 U. S. 118, it was held that usurious interest could not be set off in an action on the note. Mr. George H. Thomas and Mr. Frank Dolezal for defendants in error submitted: There is no Federal question. Under the facts in this case the remedy for usury paid is not under the Federal but the state statute. Exeter National Bank v. Orchard, 39 Nebraska, 485. By the Federal statute, a national bank is forbidden to loan money on real estate security. While this inhibition will not invalidate a mortgage on lands given to such a bank nor prevent its foreclosure, and the Federal government alone may forfeit the charter of the bank, it certainly will not be questioned, however, that it is the duty of the bank to honestly observe this inhibition; that it is the duty of the courts to so construe the statute that an honest observance will be compelled. In addition to the plain legal phase of this case, it seems equally plain that the bank should be so held, that when the government brings process to enforce the statute the bank cannot evade it by proving that it took no mortgage on land, and where the State as to that very mortgage, attempts ^o enforce its remedy for usury say that it is protected by a privilege 45è 191 U. S. OCTOBER TERM, 190â. Opinion of the Court. given by the very statute which it violated, and under which it claimed as against the government it did not act. A construction of the statute which would permit such double dealing is not to be seriously considered as proper in a court of justice. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court. The question for decision is, Did the Supreme Court of Nebraska rightly decide that the controversy concerning usurious interest paid was to be governed by the statute of Nebraska on that subject and not by the laws of the United States on the same subject, as expressed in section 5198 of the Revised Statutes? We say this is the sole question, because it is undoubted that if the rights of the parties are to be determined by the laws of the United States, the ruling below was wrong. This results from the prior adjudications of this court holding that where usurious interest has been paid to a national bank, the remedy afforded by section 5198 of the Revised Statutes is exclusive, and is confined to an independent action to recover such usurious payments. Haseltine v. Central National Bank, 183 U. S. 132, and cases cited. If, on the other hand, the controversy is governed by the local law of Nebraska, then the construction and application of that law made by the court of last resort of the State is binding. In fact, this is not controverted and could not be, since the Supreme Court of Nebraska conceded that if the contention as to usurious interest ought to he determined by the laws of the United States, the conclusion which the court reached was erroneous. That court, however, held that the rights of the parties were to be measured by the law of the State instead of the law of the United States, because the collateral mortgage was not made, eo nomine, to the bank, but to an individual. This view was deemed to be fortified by the suggestion that, as the collateral note was secured by mortgage on real estate, Schuyler National bank v. gadsden. 457 191 U. S. Opinion of the Court. it could not under the laws of the United States have been lawfully made in favor of a national bank. The collateral note and mortgage, it was, therefore, intimated must be assumed to have been executed to an individual to avoid the effect of the laws of the United States and the consequent knowledge which would have been conveyed to the proper officers of the United States that the bank was violating the law. The reasoning by which the judgment of the Supreme Court of Nebraska was controlled is, in our opinion, erroneous. The court did not hold that, because the collateral mortgage was taken in the name of an individual, it could not be enforced by the bank under the law of Nebraska, but simply held that, although it was enforceable by the bank, the remedy as to the usurious interest was governed exclusively by the state law, upon the theory that the transaction was not with the bank. But the usurious interest had all been paid, not to the individual upon the collateral note, but to the bank upon the principal obligation held by it. It was this interest so paid to the bank on the principal note held by it which was in effect imputed so as to fix the amount due. The result of this was to treat the transaction as an individual one in order thereby to exclude the law of the United States, and then at once to treat it as a bank transaction for the purpose of ascertaining and imputing the sums of usurious interest which had been paid. This was to administer the rights of the parties upon distinct and wholly inconsistent theories. Either it was an individual transaction or it was not. It could not in reason have been at one and the same time both the transaction of the bank excluding the individual and a dealing between individuals excluding the bank. As the usurious interest for which a remedy was afforded had been paid to the bank, in dealings by the bank with its debtor, and as the necessary effect of the judgment below was to reduce the debt due to the bank by allowing the imputation of the sum of the usurious interest, we are of opinion that the controversy was governed by the laws of the United States and not by the law of the State of Nebraska. 458 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. Nor do we-think the suggestions made in the opinion of the court below respecting the power of a national bank under the laws of the United States to accept real estate security operate in any way to modify the conclusion we have just expressed. It is not contended that under the law of Nebraska an agent, acting in his own name, may not take security for the benefit of a principal, or that there is or could be any valid statute of the State of Nebraska discriminating against national banks, and depriving them of the benefit of transactions so consummated. This being true, it follows that the taking of real estate security by the president of the bank in his individual name, for the benefit of the bank, was in legal effect but the taking of security by the bank itself. Now it is no longer open to controversy that the provisions of the statutes of the United States forbidding the taking of real estate security by a national bank for a debt coincidently contracted do not operate to make the security void, and thus enable the individual who has contracted with the bank to defeat recovery, but simply subject the bank to be called to account by the government for exceeding its powers. In Logan County v. Townsend, 139 U. S. 67, the rule on this subject, as settled by the previous authorities, was thus stated by the court, speaking through Mr. Justice Harlan (p. 76): “In National Bank v. Matthews, 98 U. S. 621, it appeared that a national bank loaned money upon the security of a note and a deed of trust of lands, both of which were assigned to it. The statute declared that a national banking association could loan money ‘on personal security,’ and could purchase, hold and convey real estate for certain named purposes, ‘and for no others,’ among which was not included the securing of a present loan of money by a deed of trust or mortgage on rea property. The court, while assuming that the statute, by clear implication, forbade the bank from making a loan on real estate, refused to restrain the bank from enforcing the deed of trust. The decision went upon these grounds: That the bank parte with its money in good faith; that the question as to the vio a SCHUYLER NATIONAL BANK v. GADSDEN. 459 191 U. S. Justices Brown and Brewer, dissenting. tion of its charter, by taking title to real estate for purposes unauthorized by law, could be raised only by the government in a direct proceeding for that purpose; and that it was not open to the plaintiff in that suit, who had contracted with the bank, to raise any such question in order to defeat the collection of the amount loaned. If any doubt existed as to the scope of the decision in that case, it was removed by National Bankv. Whitney, 103 U. S. 99, where it was held that the right of a national bank to enforce a mortgage of real estate taken by it to secure indebtedness then existing, as well as future advances, could not be questioned by the debtor, and that a disregard by the bank of the provisions of the act of Congress upon that subject only laid the association open to proceedings by the government for exercising powers not conferred by law.” It follows from the foregoing reasons that the Supreme Court of Nebraska erroneously determined the rights of the parties by the rule of the state law, when it should have applied the law of the United States. The judgment of the Supreme Court of Nebraska is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Mr. Justice Brown, with whom was Mr. Justice Brewer, dissenting. I am constrained to dissent from the opinion of the court in this case. The facts, concisely stated, are as follows: George Thrush executed a note to the bank for $5000, payable in six months. At the same time Thrush and wife executed a collateral note and mortgage for the same amount to Sumner, president of the bank. This note and mortgage, given partly for an antecedent and partly for a contemporaneous debt, were delivered to the bank and retained by it. The note made to the bank was renewed from time to time, 460 191 U.S. OCTOBER TERM, 1903. Justices Brown and Brewer, dissenting. and various payments of interest and principal were made, and the principal sum thereby reduced, in March, 1894, to $3000. At that time a new note was executed to the bank for the principal sum due and interest, namely, $3229. No dealings were had at any time between Thrush and wife and Sumner individually. Suit having been begun by Gadsden to foreclose a prior mortgage, and Sumner having been made a party as junior encumbrancer, he answered, and by cross petition asserted the lien of the mortgage, which he alleged was made to him as trustee of the bank. The bank being also made defendant, filed an answer and cross-petition, claiming the benefit of the mortgage to Sumner. It is clear that there was but one actual debt. The question is, whether, in asserting its right to foreclose the mortgage made to Sumner individually, it must not submit itself to the laws of the State affecting usury; in other words, whether, in the foreclosure of a mortgage created under the laws of a State and executed by one citizen of a State to another, its obligations are to be determined by state law or Federal law. Congress forbids such a mortgage; the State permits it. There can be no doubt that the bank caused the mortgage to be given to Sumner on account of the law forbidding national banks from receiving security by way of mortgage upon real estate, and to obviate any difficulties which might be interposed either by the mortgagor or by the government, by taking the mortgage in the name of the bank. Had the mortgage expressed upon its face the exact truth, namely, that it was given for the benefit of a national bank, and partly, at least, for the security of a contemporaneous debt, it would have fallen within the ban of the Federal statute. It is true the state law permitted it, but accompanied it with a forfeiture of the entire interest if usury were taken. The question is whether, in enforcing this mortgage, which the bank was prohibited from taking in its own name, it may claim an exemption from the usury laws of the State. So long as the BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 461 191 U. S. Syllabus. dealings were solely between the bank and Thrush, and payments were made upon the bank note in question, the transaction with regard to usury was governed by the Federal law. But in case the bank elected to foreclose the mortgage, I think it took the benefit of it cum onere. He who seeks equity must do equity. It could not take the benefit of the mortgage to Sumner, and claim a right to foreclose for the amount due without at the same time admitting that the payments which had been made were made upon a debt secured by the mortgage, and subject to the disability of the state law. As was justly said by the Supreme Court of Nebraska: “It would be highly unconscionable to permit a person to give a contract a false form to evade the burdens which would follow from its true expression, and then permit him to show the truth as against the form to evade the burdens caused by a contract in the form which has been so chosen.” The bank ought not to be permitted to blow hot and cold in the same transaction. If it claimed the benefit of a mortgage made to an individual, it should take it with such burdens as would rest upon it if the transaction had originally been what it was represented to be upon its face. The opinion of the court suggests an easy method by which the prohibition of the Federal statute against the lending of money upon real estate security may be successfully evaded without the slightest danger to the bank. BALTIMORE & POTOMAC R. R. CO. v, LANDRIGAN. error to the court of appeals of THE DISTRICT OF COLUMBIA. No. 71.' Argued November 10,11,1903.—Decided December 7,1903. In the absence of evidence to the contrary there is a presumption that one who was killed while crossing a railroad track at night stopped, looked and listened before attempting to cross the track. Where it appears that it was customary to keep the gates at a railway crossing down during the night without regard to the approach or presence of cars, trains or locomotives, the fact that they are down is not of itself a 462 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. warning of the presence of danger to one acquainted with such custom, while crossing the track at a time when the gates were generally down. Where it is an issue in the case whether a man was killed at a crossing by a regular train which he should know was approaching at about that hour, or by a runaway car of which he had no knowledge, and there is evidence on such issue from which reasonable men might draw different conclusions, it is not error to leave it to the jury to determine whether or not it was a want of ordinary or reasonable care and prudence for deceased to attempt to cross the track at the time and under the circumstances, the jury being charged that their verdict should be for the defendant if they found that he had been killed by the regular train. This action was brought under the death statute of the District of Columbia for damages for the death of the husband and intestate of defendant in error. The death was the result of injuries alleged to have been caused by the negligence of the plaintiffs in error. The negligence is alleged to have consisted in the insufficient coupling of the cars of the plaintiffs in error, whereby one broke loose from the others and ran over the deceased, in not equipping the car with good brakes, and not having upon it a light sufficient to give warning of its approach. The answer was not guilty. The case was tried to a jury, which returned a verdict in favor of the ‘ defendant in error in the sum of $6500. This amount was agreed to as correct if the jury should find on the issues for the defendant in error. Judgment was entered for that amount and costs. It was affirmed on appeal to the Court of Appeals of the District. The testimony is somewhat long, and we think it is only necessary to give an outline of what it tended to prove to illustrate and determine the questions presented. The plaintiffs in error operated a steam railroad in the city of Washington, District of Columbia, and maintained four tracks on Virginia avenue southwest, crossing South Capitol street. The most northerly of the tracks, called “The Reservation” or “No. 1” track, was used for freight and shifting purposes. The two intermediate tracks were used for south bound and north bound passenger traffic. The most southerly track was called the “ladder” or “lead track.” It was so BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 463 191U. S. Statement of the Case. called because all the tracks in the railroad yard were connected with it, and all the switches lead into it. It extended west across South Capitol street to an alley, and terminated at what was known as the property yard, where coal, ties, iron and other commodities were stored. Gates and a gateman were maintained at the crossing. There was evidence tending to show that the portion of this track lying west of the crossing was used for storing freight cars, but not passenger coaches, and that no portion lying west was used for shifting or making up the trains; but there was also evidence tending to show that it was so used as occasion required. Landrigan’s body was found at the southwest crossing, south of the “lead track,” “but nearer the track than the gate,” and there was flesh and blood alongside of the track on its south side. There was also testimony tending to show that the gates were generally kept down (one witness testified that in his experience they were always down) from ten or eleven o’clock at night until next morning, whether trains were passing or not, and persons with vehicles sometimes found it necessary to request the gateman to raise the gates, and sometimes to wake him up out of sleep for that purpose. Preceding and at the time of the accident a switching crew was making up a train of cars for the transportation of troops to the south, and it became necessary to “cut out” a Pullman car, called the “Lylete,” which was standing on one of the tracks. Immediately next to it was a tourist car. It was equipped with a Miller coupler; the Pullman with a Janney coupler. Both couplers were of the automatic type, but of different patterns, and not designed to couple together, and in order to draw the cars out on the ladder” track they were coupled together with the ordinary link and pin coupling. There was considerable testimony, as to the manner in which the coupling was done, and of its efficiency, which testimony it is not necessary to detail. It went to the jury with the other testimony. It is enough to say that the couplers were of unequal height, and the link could not be put in the slot of 464 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. both couplers. It was put in the slot of the Janney coupler, and the other end laid on the top of the Miller coupler, “and the only thing to keep the link from slipping over the head of the pin was a shoulder around the head of the pin.” It came loose, and one of the employés, who had been in charge of the train, testified that “the couplings ‘slipped around,’ he supposed, when they were going around the curve, and that had the tendency to make them come apart ; that he supposed it was due to the slack caused by coming over the switch and ‘the ladder’ track.” The “ladder” track had a slight incline to the crossing, and when the car broke loose it started towards the crossing. An employé had tried the brake on the straight track, but when some one “hollared” that the car had broken off he “went to work on the brake again.” “It did not seem to catch hold,” he testified; and he then “dropped off the end of the car and caught the rear end of it—the head end—and at the same time Hottal (yardmaster) got on the end that he got off of ; the witness called for Wilber to help him to put the brake on, and they did all they could to stop the car, but the car had got too much start ; the brake seemed to work all right—he did not have any fault to find with the brake, only the car had gotten too much start; he first tried the rear brake and could not get that to work ; then went to the other one ; while witness and Wilber were working on the forward brake Hottal jumped on and tried to work the rear brake ; they did not succeed in stopping the car, because it had gotten too much of a start. He got off at South Capitol street on the southeast side, stood there for a second or two, and then ran after the car to see what damage it had done. There were some other cars down on the end of this track, that this car ran into, and it would not have been safe for the witness to have stayed on the car.” The witness testified that he “did not know Landrigan personally; had seen him a number of times; he saw him after e was hurt ; Landrigan’s legs were run over, but he could not say whether it was by the car or another train; train No. 78, whic BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 465 191 U. S. Statement of the Case. left the depot about 11:55 or 11:35, was passing there about the time of the accident; this train No. 78 is known as the midnight express for New York, and crossed South Capitol street, where Landrigan was hurt, going in an easterly direction; when witness saw Landrigan the latter was lying on the south side of the outside rail of the ‘ladder track,’ the most southerly track of the four tracks of the crossing; immediately before he saw Landrigan lying there the coach ‘ Lylete ’ passed over the crossing at South Capitol street and witness came right along behind this car, after train 78 passed, to see if the coach had done any damage down there and saw Landrigan lying there with some one around him; he went down where the car had stopped and came back and found out what the trouble was.” As to the position of the gates, he said: “He first noticed the gates when he came down there after he had jumped off the end of the car; the gates were down then on both sides of the street. He did not notice the gates before 78 passed, because he had not been down that far; he stood on the southeast side of South Capitol street until 78 passed, and then started to run down the main track, and as he ran down the track he noticed that the gates were down on both sides.” And further, “the runaway car passed the southwest crossing of South Capitol street before No. 78 reached there; it struck just the middle part of No. 78 as the train came by there; the runaway car had just about gotten across the crossing when the engine of No. 78 began to cross the crossing; it was almost at the same time.” There was a white light in the dome of the vestibule of the runaway car or on the platform, and the effect of the light was testified to as follows by one witness: The lamp in the dome of the vestibule of the Pullmap car had a white shade or globe underneath; it gave a bright light— you could see it all right; the lamp was inside of the door and the door was closed; the glass in the door extended about half way down, and the light shown through the glass in the door.” vol. cxci—30 466 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. By another witness: “That the light in the car was in the dome—in the vestibule —just on the outside of the door, over the platform; he knows there was a light in the west end of the car, the end going toward South Capitol street—which was the front end of the car the way it was moving; this light could be seen more plainly than a lamp; such lights contain two burners, are lighted by oil, and are more brilliant than a lantern; the reflector is over the top of the light; there is a kind of white shade over them; that the light in the vestibule of the car could be seen by people on the ground; it hung down low, and did not set right up in the dome; it had a shade over it, but he does not know whether you could call it a reflector or not; it was plain enough to be seen by anybody who. was on the ground.” By another witness: “That the light in the vestibule of a Pullman car is so located as to illuminate the platform only; that is the purpose of that light; that it does not throw the light more than a couple of feet beyond the end of the bumper of the car; it is not intended to illuminate the track. “And thereupon, on cross-examination, said witness further testified that such a light was not intended for a locomotive headlight; that if a man was standing on the track some distance from the advancing end of a car showing such a light he would not see the source of the light, but would see the reflected light on the platform on the car; he could see the illuminated end of the car; that if he was not looking exactly in that direction this light would not attract his attention away from something else; that if he were looking up the track he could see the light if he were not too far away.” And the evidence showed “that a Pullman car running along an ordinarily straight track at a rate of speed a little faster than a man ordinarily runs, or can run, does not make any noise.” Landrigan was employed as a machinist and assistant boss on the night force at the round house, which was situated be- BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 467 191 U. S. Argument for Plaintiffs in Error. tween H and I streets, on South Capitol street. He had been employed for eight years. His home was north of the railroad tracks on Virginia avenue, and the most usual and direct route to his home from the round house was up South Capitol street to the southwest crossing, “then right over to the north side of Virginia avenue; and it was the way Landrigan usually took.” On the night of the accident he left the round house about 11:50 o’clock, and about twelve o’clock was found in the place and condition described in the testimony. The night “was not a clear night, nor was it a real dark night—there was no moon and there were a few clouds.” The crossing was lighted up by street lamps located on each side of the four corners, and there was an electric light in the reservation north of the tracks, and another one south and east of the tracks near the signal tower. There was testimony to the effect that to a person outside of the gate the flagman’s box would “ obstruct the view of the ladder track to the east, but one standing on the inside of the gate on the open space, you could look straight up the track to the eastward, and there was nothing to break your view.” And also that two freight cars obstructed the view to the west. There was no eyewitness to the accident, and Landrigan, in response to the inquiry, “How did this thing happen?” replied, “I came under the gates and something struck me, and a whole train of cars ran over me.” He died about four o’clock without making further explanation. At the close of the testimony the plaintiffs in error moved the court to instruct the jury to find a verdict for them. The court refused, and this is assigned as error. The case was then submitted on the evidence of the defendant in error. Errors are also assigned upon the giving and refusing of certain instructions. Mr. Frederic D. McKenney and Mr. J. Spalding Flannery, with whom Mr. Wayne MeVeagh was on the brief, for plaintiffs in error; 468 OCTOBER TERM, 1903. Argument for Plaintiffs in Error. 191 u. S. The railroad company cannot, as to the backing up of the -Pullman car, be held liable for doing unintentionally what it had a right to do. Stewart v. Washington & Great Falls Ry. Co., decided Nov. 4, 1903, by Court of Appeals, Dist. Gol. There is a distinction between remote and proximate causes of an accident. The proximate cause was the passing over the tracks by the plaintiff below while the gates were down. Insurance Co. v. Boon, 95 U. S. 130; Scheffer v. Railroad Co., 105 U. S. 249; W. & G. R. R. v. Hickey, 166 U. S. 528; Cullen v. Railroad Co., 8 D. C. App. 69; Granger v. Boston & Albany, 146 Massachusetts, 276; Allerton v. R. R. Co., 146 Massachusetts, 241; Schmidt v. Phila. & Reading R. R. Co., 149 Pa. St. 337; Debbins v. R. R. Co., 154 Massachusetts, 402; Marden v. Boston & Albany, 159 Massachusetts, 393; Peck v. R. R. Co., 50 Connecticut, 379; B. & O. v. Colvin, 118 Pa. St. 230; Cleary v. R. R. Co., 140 Pa. St. 19; Sheehan v. R. R. Co., 166 Pa. St. 354; Duvall v. Michigan Central R. R. Co., 105 Michigan, 386; Douglass v. R. R. Co., 100 Wisconsin, 405; 76 N. W. Rep. 356; Railway Co. v. Schneider, 45 Ohio St. 678; Railway Co. v. Ehlert, 63 Ohio St. 320. Either plaintiff did not look or, having looked, he disregarded what he saw. In explaining the occurrence he made no mention of having looked up and down the tracks before venturing upon them, and if his statement is to be accepted at all, it should be accepted as conclusive, and the case should also have been taken from the jury on this ground, for by his reference to a 11whole string of cars” he must have meant the express train No. 78; it was conceded that if he was injured by that train he could not recover. If he did not look and listen before attempting to cross the tracks, or if he looked and failed to heed the warnings of his senses, he was guilty of such contributory negligence as will prevent plaintiff from recovery here. Northern Pacific R. R-Co. v. Freeman, 174 U. S. 384; Hook v. Mo. Pac. Ry. Co., 63 8, W. Rep. 360; 21 A. & E. R. R. Cas. (N. 8.) 787. BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 469 191 U. S. Argument for Defendant in Error. The true rule in cases of this character is that there is no presumption of law either way or in favor of either party. Beach on Contributory Negligence, § 182; Missouri Pacific v. Foreman, 73 Texas, 311; Phila., W. & B. R. R. Co. v. Stib-bing, 62 Maryland, 504; Texas & Pacific v. Gentry, 163 U. S. 353. One is not entitled to say that he was injured by the negligence of another if he, by the use of ordinary care, might have escaped the damage. Davey v. London & 8. W. Ry. Co., 12 Q. B. D. 70 (1883) ; WafceZin v. London & S. W. Ry. Co., 12 App. Cas. 41 (H. L. 1886) ; The Bernina, 12 Probate Div. 58 (1887) ; Sewdll v. N. Y., N. H. & H. R. Co., 171 Massachusetts, 302; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408; Patton v. Texas Pacific Ry. Co., 179 U. S. 658. Mr. J. J. Darlington and Mr. Charles A. Douglass, with whom Mr. Joseph D. Wright was on the brief, for defendant in error : Thetrial judge could not have directed a verdict for defendants below. As to respective functions of judge and jury, see Douglass v. Railroad Co., 100 Wisconsin, 407 ; Grand Trunk Railroad Co. v. Ives, 144 U. S. 408; Texas & Pacific v. Gentry, 163 U. S. 353, 369; Cowen v. Merriam, 17 App. D. C. 186. Defendants charge that this contributory negligence which they impute to deceased consisted of two distinct acts on his part: (1) going under the closed gates; (2) failing to look and listen. Appellants cite many authorities and quote in extenso from the opinions of the courts in support of the general proposition that to go under closed gates and on a railroad track constitutes negligence per se. The principle as stated, and when applied to the ordinary case, where the gates are used as signals of danger or safety danger when closed, and safety when opened—is obviously wholesome and sound. 470 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 U. S. The gates were kept down all night except when vehicles passed; this was a custom and plaintiff knew of the custom and was entitled to rely upon it as he did. This took plaintiff out of the general rule of what would otherwise have been negligence per se ; no testimony was offered by defendants below on this point. Their failure to do so, where the witnesses who operated the gates, and who knew and could have testified better than any one else as to the exact facts, were their own employés, whom they could readily have produced if those facts would have been to their advantage, of itself creates a case for the deduction of inferences that the facts were adverse to them, upon which the plaintiff was entitled to have the jury pass. Am. Bell Tel. Co. v. Nat. Tel. Mfg. Co., 109 Fed. Rep. 976,1018 ; In re Kellogg, 7 Am. Bank. Reg. 635; Graves v. United States, 150 U. S. 118, 120, 121; Runkle v. Burnham, 153 IT. S. 216, 225. As to the alleged negligence of passing under the gates, when a danger signal thus becomes no real signal of danger, no negligence is to be imputed to the traveler who knows the fact and acts upon it. Cessante ratione legis cessât et ipsa lex. A fortiori, when a signal ceases to be used for the object for which it was intended, it ceases to indicate that object. Da-shiell v. Market Company, 10 App. D. C. 81, 89; Douglass v. R. R. Co., 100 Wisconsin, 405, and Sheehan v. R. R. Co., 166 Pa. St. 354, distinguished. While it is the duty of one before attempting to cross a railroad track to look and listen for the approach of trains, it is equally well settled that in the absence of any evidence to the contrary, it is to be presumed in favor of the deceased that he did so look and listen. Continental Improvement Co. v. Stead, 95 IT. S. 161, 194; Texas & Pacific v. Gentry, 163 IT- S. 353, 366. It was not error for the court to refuse to charge in the exact language selected by counsel for defendants. Continental Imp. Co. v. Stead, 95 IT. S. 161, 194. BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 471 191 IT. S. Opinion of the Court. Mr. Justice McKenna, after stating the case, delivered the opinion of the court. The correctness of the ruling in denying the motion to instruct the jury to find a verdict for the plaintiffs in error depends upon the correctness of the ruling in granting or refusing the special instructions prayed. The principles embraced in them are but specifications of the legal propositions contained in the motion and upon which its soundness or unsoundness depended. If the ruling of the court was right on those instructions it was right on denying the motion. We proceed, therefore, to the consideration of the propositions embraced in the instructions. The charge of the defendant in error is that the railroad companies were guilty of negligence. The railroads deny this, and claim besides that the deceased came to his death by his own negligence, or by negligence which contributed to that result. As an element in the question of the entire innocence of the railroad companies there is involved the construction and effect of the evidence in regard to the coupling of the cars and the sufficiency of the light upon the Pullman car to give notice and warning of its approach. In regard, however, to that evidence the instructions of the court are not questioned in this court. No error is assigned on them here, and whatever of argument is addressed to them or to the evidence is intended to show that those acts, even if they were acts of negligence, were not effective causes of the injury of the deceased, but that his own negligence was such cause. The determination of the contentions of plaintiffs in error, therefore, depends upon the question of the negligence of the deceased, and the instructions given in relation thereto. At the request of the plaintiff in the action, defendant in error here, the court instructed the jury as follows: 1. In the absence of all evidence tending to show whether the plaintiff’s intestate stopped, looked and listened before attempting to cross the south track, the presumption would 472 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. be that he did. But that presumption may be rebutted by circumstantial evidence, and it is a question for the jury whether the facts and circumstances proved in this case rebut that presumption, and if they find that they do, they should find that he did not stop and look and listen, but if the facts and circumstances fail to rebut such presumption then the jury should find that he did so stop and look and listen. In order to justify them in finding that he did not, all the evidence tending to show that should be weightier in the minds of the jury than that tending to show the contrary. “2. The jury are instructed that if they believe from the evidence that the gates at the crossing where the deceased received his injury were generally kept down at night from 10:30 or 11 o’clock until the early morning, without regard to the approach or presence of a car, a train, or trains or locomotives, and shall further conclude from all the facts and circumstances of the case that the deceased had knowledge of that fact, then the circumstance that the gates at the intersection of South Capitol street were down at the time of the accident was not of itself a warning to him of the presence of danger, and contributory negligence cannot be imputed to him from that fact alone. “3. While knowledge by the deceased of the presence of the Fenton engine on the north track or partly upon the South Capitol street crossing and the approach of No. 78 upon one of the central tracks at or near the time of the accident might or would indicate the presence of danger on or near those tracks, it is for the jury to determine upon all the facts of this case whether it was a want of ordinary or reasonable care and prudence upon his part to be upon the south track, at the point upon said last-named track at which they shall find from the evidence the accident occurred.” The defendants, plaintiffs in error here, submitted instructions to the court which were emphatic contraries of the instructions given at the request of the plaintiff, and expressed the law to be-that the fact of the gates being down was of itself BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 473 191U. S. Opinion of the Court. a warning to the deceased; and further, if he disregarded the warning, he was guilty of contributory negligence; and that the gates being down, they were “closed or lowered for all trains, cars or engines which were moving or passing or which might move or pass upon all or any of said tracks at said crossing and were a warning of danger which the plaintiff’s intestate was bound to heed, and if the jury shall find that the plaintiff’s intestate met his death by going under said gates and upon or so near to one of said tracks as to be struck by a car moving on said track, he was guilty of negligence contributing to the accident, and the plaintiff cannot recover in this action.” The following instruction was also prayed: “It appearing from the uncontradicted evidence in the case that the defendants maintained at all hours of the night a gateman in charge of the gates at the crossing in question, who raised and lowered said gates as occasion might require, and it. further appearing from such evidence that such gateman was accustomed to open or raise said gates for the passage of pedestrians or vehicles when it was safe to do so, and it further appearing that the crossing in question being adjacent to the shifting, storage and engine yards of said defendants and between such yards and their passenger and freight stations in the city of Washington, and that the main tracks leading to and from said station also passed over the same, said crossing was an especially dangerous place, the jury are instructed that in the absence of any evidence tending to show that the plaintiff’s intestate, upon approaching said crossing and finding the gates between him and the tracks lowered or closed, made any request of the gateman to raise or open the same or submitted any inquiry as to whether any engines, cars or trains were approaching said crossing before he went under said gates and entered upon the crossing within the same and thereby received the injuries which resulted in his death, said intestate was guilty of negligence directly contributing to his own misfortune and the plaintiff cannot recover.” (1.) There was no error in instructing the jury that in the 474 191 U. S. OCTOBER TERM, 1903. Opinion of the Court. absence of evidence to the contrary, there was a presumption that the deceased stopped, looked and listened. The law was so declared in Texas & Pacific Railway Co. v. Gentry, 163 U. S. 353, 366. The case was a natural extension of prior cases. The presumption is founded on a law of nature. We know of no more universal instinct than that of self preservation—none that so insistently urges to care against injury. It has its motives to exercise in the fear of pain, maiming and death. There are few presumptions, based on human feelings or experience, that have surer foundation than that expressed in the instruction objected to. But notwithstanding the incentives to the contrary, men are sometimes inattentive, careless or reckless of danger. These the law does not excuse nor does it distinguish between the degrees of negligence. This was the ruling in Northern Pacific Railroad Co. v. Freeman, 174 U. S. 379, the case which plaintiffs in error oppose to Railway Co. v. Gentry. In the Freeman case a man thirty-five years old, with no defect of eyesight or hearing, familiar with a railroad crossing and driving gentle horses which were accustomed to the cars, approached the crossing at a trot not faster than a brisk walk, with his head down looking at his horses and drove upon the track, looking “straight before him without turning his head either way.” This was testified to by witnesses. There was direct evidence, therefore, of inattention. There is no such evidence in this case, and the instructions given must be judged accordingly. The court did not tell the jury that all those who cross railroad tracks, stop, look and listen, or that the deceased did so, but that, in the absence of evidence to the contrary, he was presumed to have done so, and it was left to the jury to say if there was such evidence. The instruction was a recognition of “the common experience of men, from which it was judged in the Freeman case that the deceased in that case had not looked or listened, and submitted to the jury that which it was their constitutional duty to decide. And there was enough evidence to justify dispute and from which different conclusions could be drawn. BALTIMORE & POTOMAC R. R. v. LANDRIGAN. 475 191 U. S. Opinion of the Court. (2.) We think there was no error in the instruction as to the effect of the gates as a notice of danger under the practice of the companies. Indeed, the instruction is so obviously right that argument advanced to support it drops into truisms. One thing or condition cannot be any certain evidence of another thing or condition unless they invariably co-exist. Of course, two things may occasionally co-exist, but this furnishes no argument for plaintiffs in error. It only raises the query, when do the things co-exist, and, making an application to the pending case, when did the closed gates and passing trains co-exist? When were the former a witness of the latter? Always? The testimony answers, no. Between 10:30 and 11 o’clock at night, until morning, the gates were generally kept down without regard to passing trains. During that time, therefore, they had no more relation to passing trains than the signal tower or any other inanimate object at or near the crossing. Gates at a railroad crossing have a useful purpose. Open, they proclaim safety to the passing public; closed, they proclaim danger; but, it is manifest, if they be open or closed, regardless of safety or danger, they cannot be notice of either. Counsel perceive this and extend their contention to urging that it is the duty of those who want to cross, be they pedestrians or those driving teams, to seek the gateman and not to attempt to cross until he raise the gates. Those driving teams must do so if they pass at all, and a controversy such as this record presents could not occur as to them. But there are more who walk than ride, and every time their way is stopped by gates at a railroad crossing must they awake a sleeping gateman, or seek an absent one, or be charged with negligence, and that despite the fact that the practice of the railroad company has made closed gates not necessarily an indication of danger? The contention makes the neglect of duty by the railroad as efficacious as the performance of duty. At times a railroad must have exclusive use of a crossing, but at such times it is its duty to close the gates. The use over it is its duty to open them, and it cannot 476 OCTOBER TERM, 1903. Opinion of the Court. 191 u. g. neglect that duty and claim the same consequence as if it had been performed. The instructions of the court were very guarded. It told the jury if the gates where the injury occurred were generally kept down at night from 10:30 or 11 o’clock, without regard to the presence or absence of trains, and that deceased had knowledge of that fact, then “the circumstance that the gates at the intersection of South Capitol street were down at the time of the accident was not of itself a warning to him of the presence of danger, and contributory negligence cannot be imputed to him from that fact alone.” The italics are ours, and the words italicized put a careful limitation upon the instruction, and, so limited, it was not erroneous. (3.) It was an issue in the case whether the deceased was struck and run over by the Pullman car or by the passenger express No. 78, and on that issue the court instructed the jury that if the deceased was struck and run over by the passenger express, their verdict should be for the plaintiffs in error. This instruction is complained of. Plaintiffs in error contend that there was no evidence from which it could be determined that it was the Pullman car and not the passenger express train which injured the deceased, and it was error, therefore, to submit.the issue to the jury. The action of the court was right. There was certainly evidence on the issue from which reasonable men might draw different conclusions. As we have already seen, the most direct evidence of the passing of the north bound express was to the effect that “the runaway car passed the southwest crossing before 78 (the passenger express) reached there; it struck just the middle part of No. 78 as the train came by there; the runaway car had just about gotten across the crossing when the engine of 78 began to cross the crossing; it was almost about the same time. If it be admitted that this leaves the issue in doubt, and justifies no inference, there are circumstances to be considered. If the deceased was struck by No. 78, it is difficult to understand how he got to the place and in the condition he was found. PENNSYLVANIA R. R. CO. v. HUGHES. 477 191U. S. Syllabus. Was he hurled there by the impact of the train? If that were possible, how came his legs to be crushed? Not by the runaway car, because that had passed j not by train 78, for he had been cast aside and away from that. The circumstances, therefore, seem to indicate that he was not struck by train 78, but was run over by the rimaway car, and, we think, there is nothing inconsistent with that conclusion in his statement. His situation was horrible. If in our different situation we may venture to judge of it at all, we may wonder that he had or could retain any preception of what had occurred. Certainly’ exact accuracy of statement could not have been expected of him, and to his shocked and almost overwhelmed senses it might well have seemed that not one car only, but a train of cars had run over him. Finding no error in the record, the judgment is Affirmed. PENNSYLVANIA R. R. CO. v. HUGHES. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. No. 56. Argued November 5,1903.—Decided December 7,1903. A bill of lading was given in New York State for transporting a horse to a point in Pennsylvania, containing a clause limiting the carrier’s liability to a stipulated value in consideration of the rate paid, the shipper having been offered a bill of lading without such limitation on payment of a higher rate signed a memorandum accepting the contract at the lower rate. The common law as interpreted by the courts of New York and the Federal courts permits a common carrier to limit by contract his liability for his own negligence; as interpreted by the courts of Pennsylvania he cannot so limit it. On writ of error to review a judgment recovered in a state court of Pennsylvania by the shipper for damages caused by the negligence of the carrier in excess of the limited amount: Held that the jurisdiction of this court to review a judgment of a state court under sec. 709, U. S. Revised Statutes, depends upon the assertion of a right, privilege or immunity under the Federal Constitution or laws set up and denied in the state courts. ew that the highest court of a State may administer the common law ac 478 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. cording to its own understanding and interpretation thereof, being only amenable to review in this court where some immunity or privilege created by the Federal power has been asserted and denied. Held that while Congress under its power may provide for contracts for interstate commerce permitting the carrier to limit its liability to a stipulated valuation, it does not appear that Congress has, up to the present time, sanctioned contracts of this nature; and, in the absence of Congressional legislation on the subject, a State may require common carriers, although in the execution of interstate business, to be liable for the whole loss resulting from their own negligence, a contract to the contrary notwithstanding. There is no difference in the application of a principle based on the manner in which a State requires a degree of care and responsibility whether enacted into a statute or resulting from the rules of law enforced in its courts. The defendants in error brought suit in the Court of Common Pleas of Philadelphia against the Pennsylvania Railroad Company, to recover for injuries to a horse shipped by them from Albany in the State of New York to Cynwyd, in the State of Pennsylvania. The shipment was under a bill of lading of the New York Central and Hudson River Railroad Company, bearing date of August 10, 1900. It recited the receipt of the horse— “for transportation from --------to destination, if on the said carrier’s line of railroad otherwise to the place where said live stock is to be received by the connecting carriers for transportation to or toward destination, -and that the same has been received by said carrier for itself and on behalf of connecting carriers, for transportation, subject to the official tariffs, classifications and rules of the said company, and upon the following terms and conditions, which are admitted and accepted by the said shipper as just and reasonable, viz: “That said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of — per —, which is the lower published tariff rate, upon the express condition that the carrier assumes liability on the said live stock to the extent only of the following agreed valuation, upon which valuation is based the rate charged for the transportation of the said animals, and beyond which valuation neither the said carrier PENNSYLVANIA R. R. CO. v. HUGHES. 4Y9 191 U. S. Statement of the Case. nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers, or their employés or otherwise. “If horses or mules—not exceeding one hundred dollars each.” The through rate of freight was not filled out in the blanks in the shipping receipt or the bill of lading, but was collected by the agent of the Pennsylvania Railroad Company at Cyn-wyd, and it appears was the reduced tariff rate usually charged on such shipments where the limited liability clause above recited is inserted. The shipper signed the bill of lading, which contained the following stipulations: “Thomas Grady does hereby acknowledge that he had the option of shipping the above-described live stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies, as common carriers of the said live stock, upon their respective roads and lines, but has voluntarily decided to ship the same under this contract at the reduced rate of freight above first mentioned.” The agreement further provided: “No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee. The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either or which events such lower value shall be the maximum price to govern such computation.” Upon the trial the jury returned a verdict in favor of the paintiff for $10,000 and judgment was rendered accordingly, he horse was transported in safety to the end of the line of the receiving carrier and delivered to the defendant company, 480 OCTOBER TERM, 1903. 191 U. S. Argument for Plaintiff in Error. and injured while the car in which he was shipped was standing on the track of the Pennsylvania Railroad Company in the city of Philadelphia, it being run into by heavily laden cars. Upon appeal to the Supreme Court of Pennsylvania, the judgment was affirmed. 202 Pa. St. 222. Mr. John G. Johnson for plaintiff in error: The common law of the United States as interpreted by this court permits carriers, in the course of interstate commerce, in consideration of making a reduced rate, to limit their liability to a designated valuation. Hart v. P. R. R. Co., 112 U. S. 331, and cases cited, in which the rule is laid down which has been sustained by later decisions. Phoenix Ins. Co. v. Erie & Western Transportation Co., 117 U. S. 312; Liverpool Steam Co. v. Phoenix Ins. Co., 129 U. S. 397; New York &c. R. R. Co. v. Estill, 147 U. S. 591; Primrose v. West. Un. Tel., 154 U. S. 1; Chicago, Milwaukee &c. Ry. Co. v. Solan, 169 U. S. 133; Calderon v. Atlas Steamship Co., 170 U. S. 272; and Queen of the Pacific, 180 U. S. 49. In reaching its conclusion, this court interpreted the common law of the United States as the same exists in every State, including the State of Pennsylvania. West. Un. Tel. Co. v. Call Pub. Co., 181 U. S. 101. A contract for an interstate transportation, especially one valid where made, is not subject to inconsistent public policies nor to any other public policy than that of the United States. Morgan v. New Orleans &c. R. R. Co., 2 Woods, 244; S. C., 17 Fed. Cas. 754, cited in Liverpool Co. v. Phoenix Ins. Co., 129 U. S. 397, and see Hale v. Navigation Co., 15 Connecticut, 538. There is no public policy such as was supposed to exist by the learned trial judge. This court has so held and the courts of Pennsylvania have refused to enforce contracts exclusively within the jurisdiction of the Federal laws, and which, undei such laws, are valid. If, therefore, a public policy in any State interferes with interstate commerce it must yield to the superior rights of those interested in the latter. Though such public PENNSYLVANIA R. R. CO. v. HUGHES. 481 191 U. S. Argument for Plaintiff in Error. policy may control commerce within the State, it is utterly inefficacious as regards commerce between the States. The bill of lading in the present case was an entire contract stipulating for an entire transportation from one State to another, though performable at different points by different connecting carriers. It could not be held valid in one part and invalid in another, inasmuch as one consideration was paid for the whole service. The shipper received in New York, for the transportation through New York, a benefit which, under the laws of New York, resulted from the contract. This consideration sustained the contract in all its parts. An entire contract is not subject to several inconsistent public policies. A state law or state policy which interferes with or regulates interstate commerce, is void because it is exclusively within the power of Congress to regulate such commerce and such power has been exercised by the Interstate Commerce Act of 1887. A State cannot interfere, whether by an act passed before the Interstate Commerce Act, or thereafter, or by its so-called common law, or by its so-called public policy. If there is any public policy of Pennsylvania which condemns the contract, it cannot be one found in the common law of the United States. This court has so said. It must be the result of something peculiar to the law of Pennsylvania. The purpose of the Interstate Commerce Act of 1887 and as amended was to compel the exaction of reasonable rates; to bring about shipments connectedly and continuously from one State to another; to bring about by agreements between the carriers the establishment of joint rates; to compel the publication of such joint rates for through traffic; and to prohibit departures from the rates as published. See original act 24 Stats. U. S. 379, 382, and amendments, 25 Stat. 855, 856. ' No State could prescribe to a common carrier engaged in interstate transportation its rates for such transportation. It can compel neither the raising nor the lowering of the same. It necessarily raises the rate of interstate carriage if it deprives vol. cxci—31 482 OCTOBER TERM, 1903. Argument for Defendants in Error. 191 U. S. the carrier and shipper of the ability to make bargains upon terms mutually satisfactory, which bring about a reduction of the cost of transportation. Hall v. DeCuir, 95 U. S. 485; Wabash &c. Ry. Co. v. Illinois, 118 U. S. 557, 572, and cases cited; C. C. C. & St. L. Ry. Co. v. Illinois, 177 U. S. 514. - A state statute, valid before an act of Congress, must yield to the latter. Kaukauna Co. v. Green Bay &c. Canal, 142 U. S. 254. The Federal question involved in this appeal is properly raised upon the record. M. K. & T. Ry. Co. v. Elliott, 184 U. S. 533, and cases cited; Sully v. Am. Nat. Bank, 178 U. S. 298; Erie R. R. Co. v. Purdy, 185 U. S. 153; Fire Assn. v. New York, 119 U. S. 110, 115; Jacobi v. Alabama, 187 U. S. 133; Home for Incurables v. New York, 187 U. S. 155; Detroit &c. Ry. Co. v. Osborn, 189 U. S. 383; Kaukauna Co. v. Canal, 142 U. S. 254, and cases cited p. 269. Mr. A. S. L. Shields for defendants in error: This court has no jurisdiction to review the judgment of the Supreme Court of Pennsylvania. The Federal question was not raised on the trial and the Supreme Court of the State never considers questions not raised on the trial. Walls v. Campbell, 125 Pennsylvania, 346; Hartley v. Decker, 89 Pennsylvania, 470; Bank v. Schuylkill Co., 190 Pennsylvania, 188. The jurisdiction of this court to review the judgment of the highest court of a State is purely statutory, and will in all cases be strictly confined to questions arising under the provisions of section 709 of the Revised Statutes of the United States. Beals v. Cone, 188 U. S. 184; Hamblin v. Western Land Co., 147 U. S. 531, and cases cited; New Orleans W. W. Co. v. Louisiana,, 185 U. S. 336 ; Equitable Life v. Brown, 187 U. S. 308 ; San José Land Co. v. San José Ranch Co., 189 U. S. 177; Onandago Nation v. Thacher, 189 U. S. 306. Nothing in the rule of Pennsylvania law applied in this case justifies the assumption that it interferes with or regulates interstate commerce. PENNSYLVANIA R. R. CO. v. HUGHES. 483 191 U. S. Argument for Defendants in Error. The rule of Pennsylvania law applied here is that the policy of her laws prohibits a corporation created by her and transacting the business of a common carrier within her borders from limiting its liability for negligence by any form of contract, and that this rule will be applied by Pennsylvania courts to a contract made by a Pennsylvania corporation through an agent in another State. Forepaugh v. Delaware &c. R. Co., 128 Pennsylvania, 217, 230; Fairchild v. Philadelphia &c. R. Co., 148 Pennsylvania, 527, as explained in the opinion of the Pennsylvania Supreme Court in the case at bar. Hart v. P. R. R. Co., 112 U. S. 331, not applicable. The Federal power to regulate interstate commerce, however absolute and exclusive, is not a complete denial of the power of a State to control its own corporations engaged in interstate commerce. Many state laws in the nature of police regulations of such corporations have been sustained, although it was admitted that such laws had an incidental effect upon interstate commerce. A state statute prohibiting a corporation from exempting itself from liability as a common carrier by any form of contract, has been sustained as not amounting to a regulation of interstate commerce, and as within the power of the State to adopt, in spite of its incidental effect upon interstate commerce. Chicago, Milwaukee &c. Ry. v. Solan, 169 U. S. 133, and cases cited. The case just cited has been affirmed several times. Richmond, etc., R. Co. v. Patterson Tobacco Co., 169 U. S. 311, 315; Missouri, etc., Ry. Co. v. Haber, 169 U. S. 613, 627; Calderon v. Atlas Steamship Co., 170 U. S. 272, 282; Lake Shore, etc., Ry. Co. v. Ohio, 173 U. S. 285, 296; Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 514, 517. The alleged right to sue out a writ or error in this court depended upon the existence of a Federal question, which was decided adversely to the appellant by the Pennsylvania Supreme Court. Since no such Federal question arose in the case, this court will decline to interfere with the policy of Pennsylvania law as declared by the highest court of that State. 484 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. Appellant only has succeeded in showing that a conflict exists in the policy of the law administered by two separate tribunals, each of which is supreme within its own sphere and has failed entirely in the effort to show that he has any standing in this court. The appellant cannot import a Federal question into the facts of this case by arguments drawn from “the common law of the United States’’ which is said to promulgate “the public policy of the United States.” The Supreme Court of Pennsylvania has respectfully asserted its right to an independent opinion upon the rule laid down in Hart v. P. R. R. Co., 112 U. S. 331; Grogan v. Adams Express Co., 114 Pennsylvania, 523, 528. Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court. The right to review the judgment of the Supreme Court of Pennsylvania herein depends upon the proper assertion of a right or privilege under the Federal Constitution or statutes which was denied to the plaintiff in error by the adverse holding of the state court. Upon the trial in the Common Pleas Court, it was contended that the special contract above recited limited the recovery of the plaintiff to the sum of one hundred dollars. The court refused to so charge, but, holding that the policy and law of Pennsylvania, as declared by her courts of last resort, did not permit such limitations on the liability of common carriers, left to the jury to determine the value of the horse and the question of the negligence of the defendant. In view of being carried to the Supreme Court of Pennsylvania, two errors were assigned to the refusal of the court to charge: “1. That it was lawful in the State of New York for the carrier to limit its liability by a special contract for an injury resulting from its negligence; that said contract having been PENNSYLVANIA R. R. CO. ». HUGHES. 485 191 U. S. Opinion of the Court. for a through consignment from Albany to Cynwyd, a place within this State, said contract must be considered in its entirety, and is incapable of divisibility; that said contract having stipulated for an agreed valuation of the stock shipped, the parties must be governed by its terms throughout the entire route, as said contract must be interpreted and enforced here by the law of the place where it was made, and within which State it is partly performed; and that consequently the plaintiff is not entitled to recover in excess of the valuation agreed upon by the parties at the time of shipment. “2. That the plaintiff is not entitled to recover in excess of $100.” Neither of these assignments of error presents a Federal question in such sense as to give this court jurisdiction to review the judgment of the state court under section 709 of the Revised Statutes of the United States. Nothing is better settled in Federal jurisprudence than that the jurisdiction of this court in such cases depends upon the assertion of a right, title, privilege or immunity under the Federal Constitution or laws set up and denied in the state courts. Beals v. Cone, 188 U. S. 184. The first error assigned in the Common Pleas Court raised the question as to the law of the contract. It does not assert that any Federal right was invaded or denied. It seems to have been conceded at the trial that the law of the State of New York where the contract was made permitted the making of a contract limiting the liability of the carrier to the agreed valuation in consideration of the lower freight rate for carriage, the shipper having the opportunity to have the larger liability for the value of the goods if the higher rate of freight for carnage was paid. This rule also prevails in the courts of the United States, Hart v. Railroad, 112 U. S. 331, wherein it was held that a contract fairly made and signed by the shipper, agreeing on a valuation of the property carried, with a rate of freight based on such valuation, on the condition that the carrier assume liability only to the extent of such agreed valua- 486 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. tion, in case of loss by the negligence of the carrier, will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier is responsible and the freight received, and of protecting the carrier against extravagant valuations. But this is not a question of Federal law wherein the decision of the highest Federal tribunal is of conclusive authority. In Grogan v. Adams Express Co., 114 Pa. St. 523, the Supreme Court of Pennsylvania expressly declined to follow the rule laid down in Hart v. Railroad, adhering to its own declared doctrine denying the right of a common carrier to thus limit its liability for injuries resulting from negligence. The cases are numerous and conflicting, different rules prevailing in different States. The Federal courts in cases of which they have jurisdiction will doubtless continue to follow the rule of the Hart case, but the highest court of Pennsylvania may administer the common law according to its understanding and interpretation of it, being only amenable to review in the Federal Supreme Court where some right, title, immunity or privilege, the creation of the Federal power, has been asserted and denied. BethellN. Dema-ret, 10 Wall. 537; Delmas v. Ins. Co., 14 Wall. 661; Ins. Co. v. Hendren, 92 U. S. 286; United States v. Thompson, 93 U. S. 587. In the Supreme Court of Pennsylvania a further assignment of error was made as follows: “III. The learned court below erred in entering judgment in conflict with the act of Congress of February 4, 1887, entitled ‘An act to regulate commerce.’ Section 1 of said act clearly provides that where the transportation is from one State to another, under a through bill of lading, its provisions shall be carried out, unless it be in conflict with a statute of the State in which it may be performed, or in conflict with the policy of the United States as laid down in the Federal courts, and that, as the contract was valid in the place where made, and, as there is no statute in Pennsylvania prohibitory of an agreed valuation to establish a rate, and as it is consistent with the policy of the United States as declared by the Federal PENNSYLVANIA R. R. CO. v. HUGHES. 487 191 U. S. Opinion of the Court. courts, the judgment should have been for the valuation mentioned in the contract.” Of this assignment of error, Mr. Justice Potter, delivering the opinion of the Supreme Court of Pennsylvania, said (p. 229): “The third assignment of error suggests that the entry of judgment is in conflict with the interstate commerce act of Congress. This seems to be an afterthought, as there is no indication in the record that this question was raised or considered in the court below. It is not apparent how the act can have any application to this case. It contains nothing bearing upon the validity of a contract limiting the liability of a railroad for loss or injury caused by negligence. The object of the act seems to be to secure continuous carriage, and uniform rates, and to compel the furnishing of equal facilities. We cannot see that the entry of judgment in this case interferes in any way with the legitimate exercise of interstate commerce.” Upon the authority of Missouri, Kansas &c. R. R. Co. v. Elliott, 184 U. S. 530, it may be admitted that the question of the decision of the state court being in contravention of the legislation of Congress to regulate interstate commerce, was sufficiently made, and the adverse decision to the party claiming the benefit of that act, gives rise to the right of review here. In refusing to limit the recovery to the valuation agreed upon, did the state court deny to the company a right or privilege secured by the interstate commerce law? It may be assumed that under the broad power conferred upon Congress over interstate commerce as defined in repeated decisions of this court, it would be lawful for that body to make provision as to contracts for interstate carriage, permitting the carrier to limit its liability to a particular sum in consideration of lower freight rates for transportation. But upon examination of the terms of the law relied upon we fail to find any such provision therein. The sections of the interstate commerce law relied upon by the learned counsel for plaintiff in error, 24 Stat, at L., 379, 382; 25 U. S. Stat, at L., 855, provide for equal 488 OCTOBER TERM, 1903. Opinion, of the Court. 191 U. 8. facilities to shippers for the interchange of traffic; for nondiscrimination in freight rates; for keeping schedules of rates open to public inspection; for posting the same in public places, with certain particulars as to charges, rules and regulations; for the publication of joint tariff rates for continuous transportation over one or more lines, to be made public when directed by the Interstate Commerce Commission; against advances in joint tariff rates except after ten days’ notice to the commission; against reduction of joint tariff rates except after three days’ like notice; making it unlawful for any party to a joint tariff to receive or demand a greater or less compensation for the transportation of property between points as to which a joint tariff is made different than is specified in the schedule filed with the commission; giving remedies for the enforcement of the foregoing provisions, and providing penalties for their violation; making it unlawful to prevent continuous carriage, and providing that no break of bulk, stoppage or interruption by the carrier, unless made in good faith for some necessary purpose without intention to evade the act, shall prevent the carriage of freights from being treated as one continuous carriage from the place of shipment to the place of destination. While under these provisions it may be said that Congress has made it obligatory to provide proper facilities for interstate carriage of freight, and has prevented carriers from obstructing continuous shipments on interstate lines, we look in vain for any regulation of the matter here in controversy. There is no sanction of agreements of this character limiting liability to stipulated valuations, and, until Congress shall legislate upon it, is there any valid objection to the State enforcing its own regulations upon the subject, although it may to this extent indirectly affect interstate commerce contracts of carriage? It is well settled that the State may make valid enactments in the exercise of its legislative power to promote the welfare and convenience of its citizens, although in their operation they may have an effect upon interstate traffic. PENNSYLVANIA R. R. CO. v. HUGHES. 489 191 U. S. Opinion of the Court. In M. K. & T. Ry. v. Hdber, 169 U. S. 613, 635, after reviewing previous cases in this court, Mr. Justice Harlan, delivering the opinion of the court, says: . “ These cases all proceed upon the ground that the regulation of the enjoyment of the relative rights, and the performance of the duties, of all persons within the jurisdiction of a State, belong primarily to such State under its reserved power to provide for the safety of all persons and property within its limits ; and that even if the subject of such regulations be one that may be taken under the exclusive control of Congress, and be reached by national legislation, any action taken by the State upon that subject that does not directly interfere with rights secured by the Constitution of the United States or by some valid act of Congress, must be respected until Congress intervenes.” In the absence of Congressional legislation upon the subject, an act of the legislature of Alabama, to require locomotive engineers to be examined and licensed by a board to be appointed by the governor for that purpose, was sustained in Smith v. Alabama, 124 U. S. 465. An enumeration of the instances in which this court has sustained the validity of local laws intended to promote the safety and comfort of passengers, employés, persons crossing railroad tracks and adjacent property owners, is given in the opinion by Mr. Justice Brown, in Cleveland &c. Ry. Co. v. Illinois, 177 U. S. 514,516. The case of Chicago, Milwaukee &c. Ry. Co. v. Solan, 169 U. S. 133, is, in our opinion, virtually decisive of the question made upon this branch of the case. In that case cattle were loaded at Rock Valley, Iowa, to be shipped to Chicago. The contract, as here, was for interstate transportation. An injury happened to the drover in charge of the cattle in Iowa, due to the negligence of the transporting company. The shipper had signed a contract providing: “That the company shall in no event be liable to the owner or person in charge of said stock for any injury to his person in any amount exceeding the sum of $500.00.” The company averred and offered to prove 490 OCTOBER TERM, 1903. , Opinion of the Court. 191 U. S. that, in view of this limited liability, it had agreed to transport the cattle at a reduced rate. The statute of Iowa provided: “No contract, receipt, rule or regulation shall exempt any corporation engaged in transporting persons or property by railway from liability of a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule or regulation been made or entered into.” Iowa Code of 1873, sec. 1308. The trial court charged that the limitation contained in the contract was void, and a verdict of $1000.00 damages was returned. A judgment on the verdict was affirmed in the Supreme Court of Iowa. In delivering the opinion of this court, Mr. Justice Gray said (pp. 137, 138): “A carrier exercising his calling within a particular State although engaged in the business of interstate commerce, is answerable, according to the law of the State, for acts of nonfeasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place, or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, the right of action for the consequent damage is given by the local law. It is equally within the power of the State to prescribe the safeguards and precautions foreseen to be necessary and proper to prevent by anticipation those * wrongs and injuries, which, after they have been inflicted, the State has the power to redress and to punish. The rules prescribed for the construction of railroads, and for their management and operation, designed to protect persons and property, otherwise endangered by their use, are strictly within the scope of the local law. They are not, in themselves, regulations of interstate commerce, although they control, in some degree, the conduct and the liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the State to regulate the relative rights and duties of all persons and corporations within its limits. . . . The statute now PENNSYLVANIA R. R. CO. v. HUGHES. 491 191 U. S. Opinion of the Court. in question, so far as it concerns liability for injuries happening within the State of Iowa—which is the only matter presented for decision in this case—clearly comes within the same principles. It is in no just sense a regulation of commerce. It does not undertake to impose any tax upon the company, or to restrict the persons or things to be carried, or to regulate the rate of tolls, fares or freight. Its whole object and effect are to make it more sure that railroad companies shall perform the duty, resting upon them by virtue of their employment as common carriers, to use the utmost care and diligence in the transportation of passengers and goods.” It is true that this language was used of a statute of Iowa enacting a rule of obligation for common carriers in that State. But the principle recognized is that in the absence of Congressional legislation upon the subject, a State may require a common carrier, although in the execution of a contract for interstate carriage, to use great care and diligence in the carrying of passengers and transportation of goods, and to be liable for the whole loss resulting from negligence in the discharge of its duties. We can see no difference in the application of the principle based upon the manner in which the State requires this degree of care and responsibility, whether enacted into a statute or resulting from the rules of law enforced in the state courts. The State has a right to promote the welfare and safety of those within its jurisdiction by requiring common carriers to be responsible to the full measure of the loss resulting from their negligence, a contract to the contrary notwithstanding, bis requirement in the case just cited is held not to be an unlawful attempt to regulate interstate commerce in the ab-r Kr ^On^ress^ona^ action providing a different measure of ia i ity when contracts, such as the one now before us, are ma e in relation to interstate carriage. Its pertinence to the case under consideration renders further discussion unnecessary. e judgment of the Supreme Court of Pennsylvania is Affirmed. 492 OCTOBER TERM, 1903. 191 U. 8. Argument for Appellant. BEASLEY v. TEXAS & PACIFIC RAILWAY CO. APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 79. Argued December 3,1903.—Decided December 14, 1903. A railroad company on receiving from the plaintiff a conveyance of ’and for its road agreed for itself and its assigns not to build a depot within three miles of one which it built on the land conveyed. Subsequently it sold its road to defendant which proposed to build a station within the three miles, in pursuance, as was admitted, of an order of the State Railroad Commission. Held that the injunction should not issue. Quaere whether the burden of the contract passed to the defendant. Whether a railroad station shall be built in a certain place is a question involving public interests. If it appears to the court that it would be against public policy to issue an injunction against a railroad corporation the court may properly refuse to be made an instrument for such a result whatever the pleadings in the case may be. The facts are stated in the opinion of the court. Mr. E. B. Kruttschnitt and Mr. W. P. Hall for appellant: The only question on this hearing is that of jurisdiction on the equity side of the court. Appellant has the right to be heard. Mashall v. Tex. & Pac. Ry. Co., 136 U. S. 393. This is a Louisiana contract affecting Louisiana property and is governed by Louisiana law under arts. 296, 298, Code, Slaughter House Co. v. Larrieux, 30 La. Ann. 799; Levy v. Waterworks Co., 38 La. Ann. 29. The injunction should be granted; also under Federal law. Boyce's Executors v. Grundy, 3 Pet. 215; Lewis v. Cocks, 23 Wall. 470; Kilbourn v. Sunderland, 130 U. S. 514; Pomeroy’s Eq. Jurisprudence, § 1357, vol. 3; Payne v. K. & A. V. R. R., 46 Fed. Rep. 553; The Walla Walla Case, 172 U. S. 1. See also Cam v. R. R. Co., 24 Pa. St. 159. There is no necessity for a depot at the place proposed. BEASLEY v. TEXAS & PACIFIC RAILWAY CO. 493 191 U. S. Opinion of the Court. Mr. William Wirt Howe, Mr. John F. Dillon and Mr. Walker B. Spencer for appellee: The decree of the Circuit Court of Appeals was not appealable to this court. Moore v. Robins, 18 Wall. 588; Greene v. Fisk, 103 U. S. 518; Rice v. Sanger, 144 U. S. 197; Chicago &c. Ry. Co. v. Osborne, 146 U. S. 354; Brown v. Baxter, 146 U. S. 619; Meagher v. Minn. &c. Co., 145 U. S. 608; Great Western Tel. Co. v. Burnham, 162 U. S. 339. The appellee is bound in the public interest, as well as its own, to build such stations along and near the railroad as the public convenience and the rapid and economical transportation of goods and passengers may require. It would be against public policy to enforce the contract sued upon in this case, as the complainant attempts to do, and the lower court properly reached the conclusion that the complainant at the bar can have no remedy in equity. Tex. & Pae. Ry. Co. v. Scott, 23 C. C. A. 424; Florida &c. R. R. Co. v. State, 31 Florida, 509; People v. Chicago & Alton R. R. Co., 130 Illinois, 175; Fuller v. Dane, 18 Pick. 472; St. Joseph &c. R. R. Co. v. Ryan, 11 Kansas, 602; Chicago R. R. Co. v. Seeley, 45 Missouri, 212; Curry v. Natchez &c. R. R. Co., 61 Mississippi, 725; Mobile & Ohio R. R. Co. v. People, 132 Illinois, 559; Holladay v. Patterson, 5 Oregon, 177. Mr. Justice Holmes delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of Appeals ordering a bill against a railway company incorporated under the laws of the United States to be dismissed. The bill seeks to enjoin the railway company from building a depot within three miles of one already built at Uni in Louisiana, and alleges the following facts: Mrs. Beasley, the first named P aintiff j conveyed to a Louisiana corporation, the Texarkana, reveport and Natchez Railway Company, a strip of land, one undred feet wide, for a railroad track through her plantain, habendum to the company and its assigns so long as the 494 OCTOBER TERM, 1903. 191 Ü. S. Opinion of the Court. railroad was maintained and operated over the strip. By the act of sale, which was executed by both parties, it was declared to be a part of the consideration for the transfer “that the grantee or its assigns shall not build ... or establish any other depot along the line of said railroad within three miles north or south of the one stipulated for.” The defendant purchased the road from the grantee “subject to the obligations and stipulations contained in” the act of sale. It now is constructing a depot on the road within a mile and a fraction of the one at Uni. The bill further alleges that there is no public necessity for a depot within the stipulated limits. There was a demurrer for the reason that there is an adequate remedy at law, and the demurrer was sustained by the Circuit Court, and the bill dismissed. This decree was reversed by the Circuit Court of Appeals, and the bill was ordered to be dismissed for want of equity without prejudice to an action at law. 115 Fed. Rep. 952. There is a motion to dismiss the appeal to this court on the ground that the decree was not final in form, but the decisions are the other way, and the case being one in which the decree of the Circuit Court of Appeals can be reviewed in this court under the act of March 3, 1891, we have jurisdiction and the motion must be overruled. Merrill v. National Bank of Jacksonville, 173 U. S. 131. See Great West' ern Telegraph Co. v. Burnham, 162 U. S. 339, 342. „ The act of sale gives its own definition of the word “depot, but no question is made that the depot intended to be built is within the prohibition of the instrument in that and other respects. We assume that if the plaintiff’s grantee had built the structure it would have broken its agreement. We also assume for the purposes of-the case, without deciding, that the contract as a contract is not void, although similar contracts have been pronounced void in some of the cases cited below. On these assumptions the question is how far the burden o that agreement passed to the defendant, and whether, at leas as against the defendant, equity will require it to be specifica y performed. BEASLEY v. TEXAS & PACIFIC RAILWAY CO. 495 191 U. S. Opinion of the Court. Such a liability, wherever asserted, would have to be worked out, if at all, in terms of easement, covenant running with the land, implied contract, or equitable restriction. Although the Louisiana Code recognizes such servitudes “ as the prohibition of building on an estate, or of building above a particular height,” Rev. Civil Code, Art. 728 (724) ; see Art. 718 (714), and although it has been held at common law that such a servitude for the benefit of neighboring land may be created within reasonable limits, and created by words of covenant, Ladd v. Boston, 151 Massachusetts, 585, 588; Brown v. O'Brien, 168 Massachusetts, 484, compare La. Rev. Civ. Code, Art. 743 (739), it was not argued that there was an easement in this case. It would be questionable whether the obligation was “not imposed on the person or in favor of the person, but only on an estate or in favor of an estate;” La. Rev. Civ. Code, Art. 709 (705); Code Nap. 686; whether it was not in the words of Marcadé, commenting on this article of the Code Napoléon, a servitude réelle entachée de personnalité.” 2 Marcadé, 627. “There can be no praedial servitude when the object is merely to satisfy the wants of the present owner.” Sohm, Inst. Roman Law, Ledlie’s transi. § 56, II, p. 262. Apart from the peculiarities of Louisiana law, there would be almost equal difficulty in regarding the agreement as a covenant the burden of which ran with the land according to the principles of the common law, and for substantially the same reason. It is true that the covenant is negative, but it does not benefit the use and occupation of the plaintiff’s land physically, and is not intended to. It is intended simply to improve the market value, of that land by giving to it a right not to be competed with in the way of railway conveniences. Norcross v. James, 140 Massachusetts, 188, 192. As to an implied contract, that would be a fiction, and the plaintiff’s rights, so far as the ques-ion of policy is concerned, would not be enlarged by adopting 38o" ^°rm ^ee Lincoln v- Burrage, 177 Massachusetts, 378, Whether the true theory of equitable restrictions is the same 496 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. as that of covenants running with the land, or different, as their historical antecedents are different in part, it would seem that the two must have somewhat similar limits. With regard to injunctions, we see in Art. 298, 3, of the Code of Practise cited by the plaintiff, no reason to suppose that the law of Louisiana is peculiar in any way affecting the present case. Whatever the form which the attempt to restrict may take, obviously it is not desirable to allow large tracts of land to be tied up and cut off from the ordinary incidents of ownership, according to the invention of the owner, in perpetuity, in favor of other large tracts which may come by division into many hands. La. Rev. Civ. Code, Art. 656 (652). See Parish v. Municipality No. 8 La. Ann. 145, 169. If such restrictions should be enforced without limit in equity as against all purchasers with notice, the practical result would be an unlimited extension of easements, since notice always can be secured by registration. Easements hitherto have been confined pretty narrowly both in quality and in space. Equitable relief has been refused upon a covenant by a grantee not to open or work a quarry upon his land adjoining the land conveyed, in a suit between assignees of the original grantor and grantee. It was a mere covenant against competition. Norcross v. James, 140 Massachusetts, 188. On the other hand, a covenant by a grantee not to sell sand from half an acre was enforced against the grantee’s son and grantee in favor of the grantor in Hodge v. Sloan, 107 N. Y. 244, and in old times it would seem that a covenant in connection with a gift of a mill in Tenbury not to raise another mill in Tenbury might have been enforced against the heir of the covenantor. Y. B. 5 ed. Ill, 57, pl. 71; 8. C., 7 ed. Ill, 65, pl: 6, 7. Of course, there are numberless cases in which contracts have been enforced which in a more immediate sense affected the occupation and enjoyment of the quasi dominant land. It is to be noted, too, that the restriction is confined to a narrow strip, which very likely might have been subjected to a servitude of way. We do not think it necessary to decide whether the foregoing BEASLEY v. TEXAS & PACIFIC RAILWAY CO. 497 191 U. S. Opinion of the Court. general considerations would be enough to prevent the burden of this agreement falling on the defendant, or whether the allegation which has been quoted, and which means no more than that the defendant bought with notice, is enough to establish a relation of contract or quasi contract between the parties. There are more specific obstacles in the way of the bill. Whether a railroad station shall be built in a certain place is a question involving public interests. Assuming that a contract like the present is valid as a contract, and making the more debatable assumption that the burden of the contract passed to a purchaser with notice, it does not follow that such a contract will be specifically enforced. Illegality apart, a man may make himself answerable in damages for the happening or not happening of what event he likes. But he cannot secure to his contractor the help of the court to bring that event to pass, unless it is in accordance with policy to grant that help. To compel the specific performance of contracts still is the exception, not the rule, and courts would be slow to compel it in cases where it appears that paramount interests will or even may be interfered with by their action. It has been intimated by this court that a covenant much like the present should not be enforced in equity, and that the railroad should be left at liberty to follow the course which its best interests and those of the public demand. Texas & Pacific Ry. v. Marshall, 136 U. S. 393, 405; Northern Pacific Railroad v. Territory of Washington, 142 U. S. 492, 509. See further Marsh v. Fairbury, Pontiac & Northwestern Ry., 64 Illinois, 414; People v. Chicago & Alton Railroad, 130 Illinois, 175, 184; St. Joseph & Denver City Railroad v. Ryan, 11 Kansas, 602; Pacific Railroad v. Seely, 45 Missouri, 212; Florida Central & Peninsular Railroad v. Florida, 31 Florida, 482, 508; Currie v. Natchez, Jackson & Columbus Railroad, 61 Mississippi, 725, 731; Holladay v. Pat-terson, 5 Oregon, 177; Texas & Pacific Ry. v. Scott, 23 C. 0. A. 424, 429. The difficulty is illustrated as well as made greater in the case at bar. There is in Louisiana a railroad commission hav-vol. oxer—32 498 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. ing authority to require all railroads to build and maintain depots. La. Const. 1898, Art. 384. That fact is enough to suggest the possibility of a conflict if an injunction were granted. But further, although it was not pleaded, it was admitted at the bar that the commission had ordered the erection of the station in dispute. It is true that this admission was coupled with charges of improper influence. But such imputations would not be tried or listened to in a collateral proceeding like this. It is apparent therefore that if the facts appeared of record an injunction would be denied, and that as soon as they do appear it must be denied, so that a trial would be an idle form. The bill alleges that there is no public necessity or demand for a depot within the stipulated limit. But this no more could be tried for the purpose of collaterally impeaching the decision of the railroad commission than could the purity of their motives. It is objected that the foregoing was not the ground of the demurrer. But as was observed by the court below, other grounds are open on demurrer ore tenus, and apart from that consideration, if it appears that an injunction would be against public policy, the court properly may refuse to be made an instrument for such a result, whatever the pleadings. The defendant may desire the relief to be granted. It is suggested that it does. But the very meaning of public policy is the interest of others than the parties and that interest is not to be at the mercy of the defendant alone. See Northern Pacific Railroad v. Territory of Washington, 142 U. S. 492, 509. Decree affirmed. Mr. Justice Brewer concurred in the result. Mr. Justice Brown took no part in the decision. DEPOSIT BANK v. FRANKFORT. 499 191U. S. Statement of the Case. DEPOSIT BANK v. FRANKFORT.. ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY. No. 33. Argued October 20, 21,1903.—Decided December 14,1903. A right claimed under the Federal Constitution, finally adjudicated in the Federal courts, can never be taken away or impaired by state decisions, refusing to give due weight to such Federal judgment properly invoked for the protection of the party in whose favor it was rendered. When a state court refuses to give effect to a judgment of a Federal court which adjudicates that one of the parties has a contract within the protection of the impairment clause of the Federal Constitution it denies a right secured by the judgment of the Federal court upon matters wherein its decision is final until reversed in an Appellate Court or modified or set aside in the court of its rendition. The adjudication of a Federal court establishing a contract exempting from taxation although based upon the judgment of a state court given as a reason therefor is equally effectual as res judicata between the parties as though the Federal court had reached its conclusion as upon an original question; and under the doctrine of res judicata such adjudication will estop either party in subsequent litigation between themselves from again litigating the question of contract determined in the former action, even though the judgment of the state court upon which the Federal court based its decision has meanwhile been reversed by the highest court of that State. Where it has been litigated and determined in a Federal Court that the state law under which the taxes were levied is unconstitutional within the impairment clause of the Constitution because of a contract which exempted from all taxation, including particular years then in controversy, the question is res judicata as to the right to levy the tax under such law in any other year although it may have been established by the highest court of that State that an adjudication concerning taxes for one year cannot be pleaded as an estoppel in suits involving taxes of other years. . This action was brought by the board of councilmen of the city of Frankfort in the Franklin Circuit Court for the recovery of certain ad valorem taxes under levies for the years 1892,1893 and 1894. The tax for the year 1892 has been eliminated from the controversy, and the matters now disputed include the taxes for the years 1893 and 1894 and interest. The bank in the first instance relied upon the provisions of a certain law of the State of Kentucky, known as the Hewitt law, as exempting it from 500 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. the taxes sought to be enforced. This law was passed in 1886, Session Laws of Kentucky, 1885-6, pp. 140, 144-147, 201, and provided: “Section 1. That shares of stock in state or national banks, and other institutions of loan or discount, and in all corporations required by law to be taxed on their capital stock, shall be taxed 75 cents on each share thereof, equal to $100, or on each $100 of stock therein owned by individuals, corporations or societies, and said banks, institutions and corporations shall, in addition, pay upon each $100 of so much of their surplus, undivided surplus, undivided profits, or undivided accumulations, as exceeds an amount equal to ten per cent of their capital stock, the same rate of taxation that is assessed upon real estate, which shall be in full of all tax, State, county and municipal. . . . “Sec. 4. That each of said banks, institutions and corporations, by its proper corporate authority, with the consent of a majority in interest of a quorum of its stockholders, at a regular or called meeting thereof, may give its consent to the levying of said tax, and agree to pay the same as herein provided, and to waive and release all right under the acts of Congress, or under the charters of the state banks to a different mode or smaller rate of taxation, which consent or agreement to and with the State of Kentucky shall be evidenced by writing under the seal of such bank and delivered to the governor of this Commonwealth; and upon such agreement and consent being delivered, and in consideration thereof, such bank and its shares of stock shall be exempt from all other taxation whatsoever so long as said tax shall be paid during the corporate existence of such bank. “Sec. 5. The said bank may take the proceeding authorized by section 4 of this act at any time until the meeting of the next general assembly: provided, they pay the tax provided in section 1 from the passage of this act. “Sec. 6. This act shall be subject to the provisions of sec tion 8, chapter 68, of the General Statutes. DEPOSIT BANK v. FRANKFORT. 501 191 U. S. Statement of the Case. “Sec. 7. If any bank, State or national, shall refuse or fail to pay the tax imposed by this act, or shall fail or refuse to make the consent and agreement as prescribed in section 4, the shares of stock of such bank, institution or corporation and its surplus, undivided accumulations and undivided profits, shall be assessed as directed by section 2 of this act, and the same taxes, State, county and municipal, shall be imposed, levied and collected upon the assessed shares, surplus, undivided profits, undivided accumulations, as is imposed on the assessed taxable property in the hands of individuals: Provided, that nothing herein contained shall be construed as exempting from taxation for county or municipal purposes any real estate or building owned and used by said banks or corporations for conducting their business, but the same may be taxed for county and municipal purposes as other real estate is taxed.” The Deposit Bank of Frankfort accepted the terms of the Hewitt law and made payment of the taxes as therein provided. The Circuit Court of Franklin County, by judgment upon the pleadings in this case, sustained the bank’s claim of exemption, holding the Hewitt law to be an irrevocable contract between the bank and the State. Upon appeal, this judgment was reversed by the Kentucky Court of Appeals, that court holding that the Hewitt act did not constitute an irrevocable contract, and had been repealed by the later act of 1892, under which act the bank was not exempt from payment of the taxes in controversy. After the case was remanded to the Circuit Court for a new trial the bank filed a supplementary answer, setting up as an estoppel a decree of the United States Circuit Court for the istrict of Kentucky rendered in 1898, in a case to which the bank and the complainant were parties. The decree in that case was rendered upon a bill filed by the bank, in which it set up, among other things, a certain judgment of the Franklin ircuit Court rendered in 1896, in which it was adjudged that e Hewitt law constituted an irrevocable contract exempting e bank from taxation. At the time of the rendition of the 502 OCTOBER TERM, 1903. Statement of the Case. 191 U. S. decree in the United States court the judgment of the state Circuit Court relied on was in full force although subsequently reversed by the Kentucky Court of Appeals. In the Federal court the following decree was rendered: “The court being sufficiently advised, files its opinion herein. “It is therefore adjudged, ordered and decreed as follows: “First. That the demurrer of the defendants Board of Councilmen of the City of Frankfort and Franklin County and of the defendants Samuel H. Stone, G. W. Long and Charles Finley be, and the said demurrers are, hereby overruled; to which the said defendants each except. “ Second. The plea of defendants Board of Councilmen of the City of Frankfort and Franklin County to the bill of complaint is overruled; to which the said defendants except. “Third. Thereupon came the complainant, by Frank Chinn, its counsel, and files its replication to the answer of the defendants, Board of Councilmen of the City of Frankfort and Franklin County. The defendants, County of Franklin and City of Frankfort, offered to file an amended answer; to which complainant objected, and the motion to file is overruled; to which said defendants except, and said amended answer is made a part of the record by the order of the court. “And by consent this cause came on to be heard for final decree. The complainant read upon hearing its bill of complaint and its amended bill of complaint herein, together with all the exhibits filed with said bills, to wit: “Exhibit‘A,’ being the record of the proceedings in the case of Deposit Bank of Frankfort against Franklin County and John W. Gaines, sheriff. “Exhibit ‘ B,’ being the records in the proceedings in the case of Deposit Bank of Frankfort against Franklin County and R. D. Armstrong, sheriff. “Exhibit ‘C,’ being judgment of Franklin Circuit Court, entered February 1,1896, in the suit of Deposit Bank of Fran fort against Franklin County. . . “ Exhibit ‘ D,’ being record of the proceedings in the case o DEPOSIT BANK v. FRANKFORT. 503 191 U. S. Statement of the Case. Board of Councilmen of City of Frankfort against Deposit Bank of Franklin. “The defendant, The County of Franklin, read on the hearing its answer, and the defendant Board of Councilmen of the City of Frankfort read on the hearing the record of the proceedings in the case of Board of Councilmen of City of Frankfort against L. C. Norman, auditor, etc., and also read its answer. “And it is now adjudged, ordered and decreed that the defendants, Samuel H. Stone, Charles Finley and George W. Long be, and they are hereby, perpetually enjoined and restrained from proceeding to value the franchise of the complainant under the act of November 11, 1892, for the years 1895, 1896, 1897, 1898, or for any other subsequent years until the expiration of the charter of the complainant, and are enjoined and restrained from certifying such value to the county clerk of Franklin County or to any officer of the board of councilmen of the city of Frankfort or the county of Franklin and the defendants, County of Franklin and Board of Councilmen of the City of Frankfort, are enjoined and restrained from endeavoring to collect any tax upon any such valuations; and the complainant, by making payments in accordance with the Hewitt law, is discharged in full from all taxes to be exacted from it under any form or by any authority. “It is further adjudged, ordered and decreed that by reason of the several pleas of res judicata, relied on by the complainant in its bill, and as shown by the exhibits therewith, the complainant has established a contract with the Commonwealth of Kentucky, under the provisions of article 2 of the act of the general assembly of the State of Kentucky, entitled ‘ An act to amend the revenue laws of the Commonwealth of Kentucky,’ approved May 17, 1886, and the acceptance of the same by the complainant, the terms of which contract the common-weath cannot alter or change without the consent of the complainant; that by the terms of this contract the complain-an and Ks shares of stock cannot, during its corporate existence, be assessed for taxation for State purposes in a different 504 OCTOBER TERM, 1903. 191 U. S. Argument for Plaintiff in Error. mode or at a greater rate of taxation than as prescribed in said act, and can be assessed for taxation and taxed for county and municipal purposes only upon its real estate used by it in conducting its business; that the provisions of the present constitution of the Commonwealth of Kentucky and the act of November 11, 1892, in so far as they are intended to provide or do provide for any assessment or taxation of the complainant’s property, rights of property, or franchise, or shares of stock, except to the extent and in the manner provided by sections 1, 2 and 3 of article 2 of the said act approved May 17, 1886, and except to assess and tax for county and municipal purposes upon its real estate used in conducting its business, are in violation of and repugnant to the Federal Constitution and void. “And it is further adjudged that the complainant recover of the defendant its costs in this action expended. “And came defendants and prayed an appeal in open court, and tendered their assignment of errors; whereupon the court allowed the appeal, and orders the assignment of errors to be filed and fixes the appeal bond at one thousand dollars.” This decree? of 1898 was afterwards affirmed in this court. Stone v. Deposit Bank, 174 U. S. 800. The Franklin Circuit Court in the case now before us dismissed the petition upon the ground that there had been no proper return of no property found, and did not pass upon the question as to whether the decree of the United States court was effectual as an estoppel between the parties. Upon appeal to the Court of Appeals of Kentucky, it was held by a majority of the court, three judges dissenting, that the decree relied upon was not an estoppel. By writ of error that judgment is brought here for review. Mr. Frank Chinn, "with whom Mr. D. W. Lindsey was on the brief, for plaintiff in error: The decree of the United States court relied on as a bar to this action having been rendered by a court having jurisdiction of the cause and of the parties, is conclusive upon the city in every other court so long as that decree stands unreversed. DEPOSIT BANK v. FRANKFORT. 505 191 U. S. Argument for Defendant in Error. Hollister v. Abbott, 64 Am. Dec. 342, and cases cited; Dupuy v. Johnson, 4 Bibb, 562; Garner’s Admr. v. Strode, 5 Litt. 314; Paul v. Smith, 82 Kentucky, 431; Davis v. McCorkle, 14 Bush, 751. And the fact that this action was begun before that in which the United States court suit was filed does not alter the rule. Am. & Eng. Ency. of Law, vol. 12, p. 149c, and cases there cited. The Court of Appeals was without jurisdiction to decide whether or not the United States court based its judgment upon one or all of the pleas of res judicata set up and relied on by the bank in that case, the rule being well settled that as between national and state courts, neither will undertake to grant relief from a judgment rendered by the other. One having equitable grounds for relief from a judgment rendered in courts of either must apply to the court of the sovereignty in which the judgment was rendered. Freeman on Judgments, sec. 485, p. 852, citing Riggs v. Johnson, 6 Wall. 166; United States v. Keokuk, 6 Wall. 514; Engles v. Miller, 2 Rich. Eq. 320; Strozen v.Hawes, 30 Georgia, 578; 1 U.S. Stats, at Large, 335. The Federal question is, that the rights and immunities which the Deposit Bank acquired under the decree of June, 1898, affirmed by this court, have been denied and disregarded by the state court by the judgment in error, in violation of section 709, Revised Statutes of the United States. Foster’s Fed. P. & p. vol. 2, p. 1180, note 1, citing Tex. & Pac. R. Co. v. Johnson, 151 U. S. 81-99; U. S. Rev. Stat. sec. 709; Pitts-burgh &c. Ry. Co. v. Trust Company, 172 U. S. 493; Dowell v. Appellate, 152 U. S. 327. Mr. W. H. Julian, with whom Mr. Ira Julian and Mr. T. H. Crockett were on the brief, for defendant in error: The sole ground relied on for reversal is that the United States Circuit Court for the District of Kentucky in Deposit Bank v. Stone, of 1898, held that the Hewitt law constituted 506 OCTOBER TERM, 1903. Argument for Defendant in Error. 191 U. S. an irrevocable contract between the Deposit Bank of Frankfort and the State of Kentucky. If that proposition were true, the bank’s plea of estoppel would not be available herein, because of the first judgment by the state court rendered in 1900, from which no writ or error was ever prosecuted or prayed. An estoppel against an estoppel sets the matter at large. Bigelow on Estoppel, 5th ed. p. 360, and authorities cited. The proposition, however, is unsound. The Federal court, in Bank v. Stone, did not hold that such law constituted an irrevocable contract between the bank and the State. The question of Hewitt law contract decided by the state court in June, 1900, is an entirely different question from the question of estoppel decided by the Federal court in 1898. The former is a Federal question. The latter is not a Federal question. Phoenix Insurance Co. v. Tennessee, 161 U. S. 184. All that this court has ever required of the courts of last resort of the States, in giving effect to Federal court judgments, is: That Federal court judgments be given the same effect that is given state court judgments, of the same character and rendered under similar circumstances, by the courts of the State in which they are rendered. Section 905, Revised Statutes U. S., as construed by this court in numerous cases, so requires. Mills v. Duryee, 7 Cranch, 484; Hampton v. McConnell, 3 Wheat. 234; Metcalf v. Watertown, 153 U. S. 676, and cases cited; McElmoyle v. Cohen, 13 Pet. 326; Christmas v. Russell, 5 Wall. 290; Thompson v. Whitman, 18 Wall. 457; Abraham v. Casey, 179 U. S. 218. As to the effect as an estoppel given to such judgments, as that relied on by appellee herein, “by the courts, laws and usage ” of Kentucky, see City of Newport v. Commonwealth, 21 Ky. L. Rep. 47, and cases cited; Nagley v. City of Henderson, 59 S. W. Rep. 19; Bell County C. & I- C°-v. City of Pineville, 23 Ky. L. Rep. 933; City of Frankfort v. Deposit Bank, 23 Ky. L. Rep. 1285 (1901), involved the same question. Exemption was claimed by the bank on the groun of a former adjudication of contract in a litigation as to taxes DEPOSIT BANK v. FRANKFORT. 507 191 U. S. Argument for Defendant in Error. for the years 1895, 1896, 1897, 1898. The plea of estoppel was held unavailable. See also Louisville Bridge Co. v. Louisville, 65 S. W. Rep. 814; Douglass v. Comm., 15 Ky. L. Rep. 581, affirmed Douglass v. Kentucky, 168 U. S. 488. The judgment from which this writ of error is prosecuted not only gives to the judgment relied on as an estoppel herein the same effect which that court has uniformly given to the same character of judgments rendered by the courts of Kentucky, but also the same effect which this court has uniformly given to such judgments. There are two classes of estoppel by res judicata—namely, 1st, “estoppel by former judgment,” and 2d, the claim of estoppel now relied on, “estoppel by former verdict.” Keokuk & Western R. R. v. Missouri, 152 U. S. 31. This character of estoppel is subject to very many restrictions. Unlike estoppels by former judgment (which apply to all matters both of law and fact, which were litigated and determined in the former suit, and also to all matters which might have been litigated and determined in the former suit) the estoppel by former verdict is restricted to issues of fact which were actually litigated and determined in the former suit and which arise in the second suit under substantially the same circumstances as in the first action. Cromwell v. Sac, 94 U. S. 315; New Orleans v. Citizens Bank, 167 U. S. 371. And see also Galpin v. Page, 18 Wall. 374; Freeman on Judgments, 4th ed. vol. 1, § 329, and authorities cited; C. & V. R. R. Co. v. Fosdick, 106 U. S. 47, in which the reversal of the decree on which the other decrees were based, were held ipso facto to vitiate the latter. See also Butler v. Eaton, 141 U. S. 243. There is no reason for the chancellor’s giving any other or further effect to a decree or order of injunction after the foundation thereof has been destroyed, and the purpose thereof has been fully accomplished, whatever the general language of injunction. Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. 421; Newport v. Newport Light Co., 14 Ky. L. Rep. 485. 508 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court. The so-called Hewitt law, set forth in the foregoing statement, has given rise to much litigation in the courts of Kentucky, as well as in those of the United States. At one time it was held by the Court of Appeals of Kentucky that its provisions, when complied with by the bank seeking to avail itself of its privileges, constituted a valid and binding contract. Commonwealth, to use of Franklin Co. v. Farmers’ Bank of Kentucky et al., 97 Kentucky, 590. In a later case the Court of Appeals of Kentucky held the law not to constitute an inviolable contract. Deposit Bank of Owensboro v. Daviess Co., 102 Kentucky, 174. When the law was before this court, the same conclusion was reached. Citizens’ Savings Bank of Owensboro v. Owensboro, 173 U. S. 636. It may be now regarded as the settled law that this enactment did not constitute a contract between the State and the banks as to taxation, but is subject to modification and repeal by subsequent laws of the State undertaking to tax bank property. In this case we have to deal with the effect of a decree of the Circuit Court of the United States which is unreversed and affirmed in this court, and in which, between the parties to the present action, it was held that the Hewitt law was a valid enactment and constituted a contract between the parties within the protection of the contract clause of the Constitution of the United States. A proper consideration of the question requires that it shall be distinctly understood just what this decree is. The bill which was the basis of the action of the court was broad in its terms, and sought not only to enjoin the collection of the taxes for the years 1895, 1896, 1897, 1898, which were involved, but to have it finally adjudicated that the Hewitt law constituted a contract between the parties which shielded the bank from taxation after complying with the provisions of that law. The decree not only provided for DEPOSIT BANK v. FRANKFORT. 509 191 U. S. Opinion of the Court. a perpetual injunction enjoining the taxation for the years specifically mentioned, but further: “It is further adjudged, ordered and decreed that by reason of the several pleas of res judicata, relied on by the complainant in its bill and as shown by the exhibits therewith, the complainant has established a contract with the Commonwealth of Kentucky under the provisions of article 2 of the act of the general assembly of the State of Kentucky, entitled ‘ An act to amend the revenue laws of the Commonwealth of Kentucky,’ approved May 17, 1886, and the acceptance of the same by the complainant, the terms of which contract the Commonwealth cannot alter or change without the consent of the complainant; that by the terms of this contract the complainant and its shares of stock cannot, during its corporate existence, be assessed for taxation for state purposes in a different mode or at a greater rate of taxation than as prescribed in said act, and can be assessed for taxation and taxed for county and municipal purposes only upon its real estate used by it in conducting its business; that the provisions of the present constitution of the Commonwealth of Kentucky and the act of November 11, 1892, in so far as they are intended to provide or do provide for any assessment or taxation of the complainant’s property, rights of property, or franchise, or shares of stock, except to the extent and in the manner provided by sections 1, 2 and 3 of article 2 of the said act approved May 17, 1886, and except to assess and tax for county and municipal purposes upon its real estate used in conducting its business, are in violation of and repugnant to the Federal Constitution and void.” The constitution of the Commonwealth of Kentucky, adopted after the passage of the Hewitt law, made provision for the enactment of laws for the taxation of the property of banks. Passed under the authority of these constitutional provisions, the act of November 11, 1892, referred to in the decree of the Federal Circuit Court of 1898, is the legislation subsequent to the Hewitt law under which it is sought to assess and collect taxes involved in the present suit. If this decree is to be given 510 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. force and effect, as having adjudicated the Hewitt law to be a binding contract covering the right to tax the bank, there can be no question that this subsequent legislation is violative of the constitutional inhibition against the States from enacting laws impairing the obligation of contracts. This legislation is in absolute conflict with the Hewitt law. Citizens’ Savings Bank of Owensboro v. Owensboro, 173 U. S. 636. The decree declares in terms, as direct and specific as it is possible to make them, that the act now sought to be enforced in the assessment and collection of taxes is in violation of the Federal Constitution, and therefore void. The judgment of the state court upon which the decree of the Federal court is predicated was equally broad in its terms, and covered not only the particular years of assessment then in question but the broader right of the parties to be protected under the Federal Constitution against state enactments in violation of the contract provision of that instrument. It is urged that the state judgment upon which the Federal decree of 1898 is based was afterward reversed by the highest court of Kentucky, and, therefore, the foundation of the decree has been removed and the decree itself must fall. But is this argument sound? When a plea of res judicata is interposed based upon a former judgment between the parties, the question is not what were the reasons upon which the judgment proceeded, but what was the judgment itself, was it within the jurisdiction of the court, between the same parties, and is it still in force and effect? The doctrine of estoppel by judgment is founded upon the proposition that all controversies and contentions involved are set at rest by a judgment or decree lawfully rendered which in its terms embodied a settlement of the rights of the parties. It would undermine the foundation of the principle upon which it is based if the court might inquire into and revise the reasons which led the court to make the judgment. In such case, nothing would be set at rest by the decree; but the matter supposed to be finally adjudicated, and concerning which the parties had had their day in court, could DEPOSIT BANK v. FRANKFORT. 511 191 U. S. Opinion of the Court. be reopened and examined, and if the reasons stated were in the judgment of the court before which the estoppel is pleaded insufficient, a new judgment could be rendered because of these divergent views and the whole matter would be at large. In other words, nothing would be settled, and the judgment, unreversed, instead of having the effect of forever settling the rights of the parties, would be but an idle ceremony. We are unable to find reason or authority supporting the proposition that because a judgment may have been given for wrong reasons or has been subsequently reversed, that it is any the less effective as an estoppel between the parties while in force. In Crescent City Live Stock Co. v. Butchers ’ Union Slaughter House Co., 120 U. S. 141, the question of what effect should be given to a decision of a eourt of the United States as proof of probable cause in a suit for a prosecution which was alleged to be malicious was before the court. It appeared that the judgment relied upon had been subsequently reversed, and it was held that this made no difference unless it was shown that the judgment was obtained by means of fraud. Mr. Justice Matthews, delivering the opinion of the court, said: "Its integrity, its validity, and its effect are complete in all respects between all parties in every suit and in every forum where it is legitimately produced as the foundation of an action, or of a defence, either by plea or in proof, as it would be in any other circumstances. While it remains in force it determines the rights of the parties between themselves, and may be carried into execution in due course of law to its full extent, furnishing a complete protection to all who act in compliance with its mandate, and even after reversal it still remains, as in the case of every other judgment or decree in like circumstances, sufficient evidence in favor of the plaintiff who instituted the suit or action in which it is rendered, when sued for a malicious prosecution, that he had probable cause for his proceeding.” The precise question was before the Court of Appeals of New . ork in Parkhurst v. Berdell, 110 N. Y. 386, in which case a judgment was relied upon as an estoppel in a suit between the 512 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. same parties. The first suit settled certain matters in controversy in the second suit, and was given force and effect as an estoppel, but was afterward reversed by the appellate court. The second suit, in which it was relied upon, came before the Court of Appeals, and it was claimed that the reversal of the judgment in the first suit would avoid its force as an estoppel between the parties. The court said (p. 392): “ If the judgment roll was competent evidence when received, its reception was not rendered erroneous by the subsequent reversal of the judgment. Notwithstanding its reversal, it continued in this action to have the same effect to which it was entitled when received in evidence. The only relief a party against whom a judgment which has been subsequently reversed has thus been received in evidence can have, is to move on that fact in the court of original jurisdiction for a new trial and then the court can, in the exercise of its discretion, grant or refuse a new trial, as justice may require.” It is to be remembered that we are not dealing with the right of the parties to get relief from the original judgment by bill of review or other process in the Federal court in which it was rendered. There the court may reconsider and set aside or modify its judgment upon seasonable application. In every other forum the reasons for passing the decree are wholly immaterial and the subsequent reversal of the judgment upon which it is predicated can have no other effect than to authorize the party aggrieved to move in some proper proceeding, in the court of its rendition, to modify it or set it aside. It cannot be attacked collaterally, and in every other court must be given full force and effect, irrespective of the reasons upon which it is based. Cooley on Const. Limitations, 7th ed. 83 et seq., and cases cited. Again, it is urged that the taxes herein involved are those for different years than were under consideration and covered by the decree of the Federal court relied upon. The vice of this argument consists in assuming that the taxes for specific years were alone involved and covered by the decree of the co DEPOSIT BANK v. FRANKFORT. 513 191 U. S. Opinion of the Court. The controversy was as to the force and effect of the Hewitt law as a contract; not for one year but for all years; not for one assessment, but for all assessments of taxes upon certain property of the bank. The contest was over the contract, and the consequent want of power to collect any and all taxes the assessment of which did violence to the contract rights of the bank. The court had jurisdiction of the parties and of the subject matter of the suit, and it was adjudicated that there was a contract which was entitled to protection against impairment by state legislation within the right guaranteed by the Federal Constitution. This adjudication necessarily included not only the taxes for specific years, but foreclosed the right to collect any taxes concerning which the contract afforded immunity to the bank. That a bank charter and laws having the effect of bank charters may constitute valid and binding contracts conclusive between the parties, is now so well settled by the adjudications of this court as not to be open to discussion. New Orleans v. Citizens Bank, 167 U. S. 371. In that case it was held that a judgment of the District Court of New Orleans, holding the charter of a bank to constitute a binding and conclusive contract between the parties, although involving the taxes of other years than those in suit, was res judicata and conclusive between the parties. In the course of the opinion, Mr. Justice White said: 1 The proposition that because a suit for a tax of one year is a different demand from the suit for a tax for another, therefore res judicata cannot apply, whilst admitting in form the principle of the thing adjudged, in reality substantially denies and destroys it. The estoppel resulting from the thing adjudged does not depend upon whether there is the same demand in both cases, but exists, even though there be different demands, when the question upon which the recovery of the second demand depends has under identical circumstances and conditions been previously concluded by a judgment between the parties or their privies. This is the elemental rule, stated in the text ooks and enforced by many decisions of this court. , . , vol. oxci—33 514 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. 11 It follows, then, that the mere fact that the demand in this case is for a tax for one year, and the demands in the adjudged cases were for taxes for other years, does not prevent the operation of the thing adjudged, if, in the prior cases, the question of exemption was necessarily presented and determined upon identically the same facts upon which the right of exemption is now claimed.” This case is cited with approval in Southern Pacific R. R. Co. v. United States, 168 U. S. 1, in which the decisions of this court upon the subject of res judicata are reviewed by Mr. Justice Harlan and the general doctrine thus stated: “A right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact, once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.” The thing established by the Federal decree relied upon here was the binding and conclusive character of the contract embodied in the Hewitt law and its acceptance. That it was such a contract was then adjudicated, and, irrespective of the reasons given for the decision, must remain concluded until the judgment constituting such adjudication is modified or reversed. But it is said that the question here is simply what force and effect the state court should give to the decree of the Federal court relied upon. It is argued that there should be given to a Federal judgment the same force and effect that the state court gives to a judgment of a court of the State, in which the Federal judgment is relied upon, neither more nor less. Cases are cited from the Kentucky Court of Appeals which may be said to establish that an adjudication concerning taxes for one year cannot be pleaded as an estoppel in suits in that State involving the taxes of other years. It is true that for some purposes and within certain limits it is only required that the judgments of DEPOSIT BANK v. FRANKFORT. 515 191 U. S. - Opinion of the Court. the courts of the United States shall be given the same force and effect as are given the judgments of the courts of the States wherein they are rendered; but it is equally true that whether a Federal judgment has been given due force and effect in the state court is a Federal question reviewable by this court, which will determine for itself whether such judgment has been given due weight or otherwise. Crescent City Live Stock Co. v. Butchers’ Union Slaughter Co., supra; Pittsburgh R. R. Co. v. Loan & Trust Co., 172 U. S. 493. In the latter case, Mr. Justice Harlan, after reviewing the cases upon this subject, thus states his conclusion: “ According to these decisions and in view of the statute giving this court authority to reexamine the final judgment of the highest court of a State denying a right specially set up or claimed under an authority exercised under the United States, it is clear that we have jurisdiction to inquire whether due effect was accorded to the foreclosure proceedings in the Circuit Courts of the United States under which the plaintiff in error claims title to the lands and property in question.” When is the state court obliged to give to Federal judgments only the force and effect it gives to state court judgments within its own jurisdiction? Such cases are distinctly pointed out in the opinion of Mr. Justice Bradley in Dupasseur v. Rochereau, 21 Wall. 130, where the learned justice says: “The only effect that can be justly claimed for the judgment in the Circuit Court of the United States, is such as would belong to judgments of the state courts rendered under similar circumstances. Dupasseur and Co. were citizens of France, and brought the suit in the Circuit Court of the United States as such citizens; and, consequently, that court, deriving its jurisdiction solely from the citizenship of the parties, was in the exercise of jurisdiction to administer the laws of the State, and its proceedings were had in accordance with the forms and course of proceeding in the state courts. It is apparent, therefore, that no higher sanctity or effect can be claimed for the judgment of the Circuit Court of the United States rendered 516 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. in such a case under such circumstances than is due to the judgments of the state courts in a like case and under similar circumstances.” The cases which, by clear inference, cannot come within this class are to be noticed. When it was said that no higher sanctity or effect can be given to a judgment of the Circuit Court of the United States than to state judgments, the learned judge is careful to say “in like case under similar circumstances.” What are these cases? Manifestly those just stated, wherein the court derives its jurisdiction from the citizenship of the parties and in the exercise of the jurisdiction to administer the laws of the State where the proceedings are had. Where language has been used in other cases to the effect that judgments of the Federal courts are to be given the effect given to domestic judgments, they will be found to be cases where questions of general law are under consideration, and coming within the class suggested by Justice Bradley in the opinion quoted. Such is the case of Crescent City Live Stock Co. v. Butchers’ Union Slaughter House Co., 120 U. S. 141. It was there held that a judgment of the United States court, relied upon as a ground of probable cause in a suit for malicious prosecution, was to be given the same force and effect as judgments in the state courts. But Mr. Justice Matthews, delivering the opinion, was careful to add: “Whatever deference may be due to the decisions of the state court of final resort in every cage in which it has spoken, and whatever may be the respect to which its decisions upon questions of purely local law established as rules of property may be entitled, they are not authority binding upon the courts of the United States, sitting even in the same State, where the questions involved and decided relate to rights arising under the Constitution and laws of the United States. In Embry v. Palmer, 107 U. S. 3, it was held that the Supreme Court of the District of Columbia is a court of the United States and its judgments conclusive in the courts of a State except for DEPOSIT BANK v. FRANKFORT. 517 191 U. S. Opinion of the Court. such cause as would be sufficient to set it aside in the courts of the District. Mr. Justice Matthews, who delivered „ the opinion, again stated the doctrine that the judgments of the courts of the United States are upon the same footing so far as concerns the obligation created by them with judgments of the States. Other cases are found in the reports stating the general proposition. In Union & Planters’ Bank v. Memphis, 189 U. S. 71, the question was as to the effect to be given to a state judgment as res judicata. It was held that the Federal courts were not required to give such domestic judgments any greater force and effect than was awarded them by the courts of the State where rendered. ' . But it is equally well settled that a right claimed under the Federal Constitution, finally adjudicated in the Federal courts, can never be taken away or impaired by state decisions. The same reasoning which permits to the States the right of final adjudication upon purely state questions requires no less respect for the final decisions of the Federal courts of questions of national authority and jurisdiction. This principle is now so thoroughly settled as to need but to be stated. It has been reiterated in a line of decisions following the great judgment of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, in which the principle was firmly established. As early as Ohio Life Insurance & Trust Co. v. Debolt, 16 How. 416, 432, Chief Justice Taney said: “Indeed, the duty imposed upon this comt to enforce contracts honestly and legally made, would be vain and nugatory, if we were bound to follow those changes in judicial decisions which the lapse of time and the change in judicial officers will often produce. The writ of error to a state comt would be no protection to a contract, if we were bound to follow the judgment which the state court had given, and which the writ of error brings up for revision here.” McCullough v. Virginia, 172 U. S. 102; Jefferson Branch Bank v. Skelly, 1 518 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. Black, 436; Douglas v. Kentucky, 168 U. S. 488, 501, and cases cited. In the last named case, Mr. Justice Harlan, delivering the opinion, deals with the question as follows: “The defendant insists that his rights having been acquired when these decisions of the highest court of Kentucky were in full force, should be protected according to the law of the State as it was adjudged to be when those rights attached. But is this court required to accept the principles announced by the state court as to the extent to which the contract clause of the Federal Constitution restricts the powers of the state legislatures? Clearly not. The defendant invokes the jurisdiction of this court upon the ground that the rights denied to him by the final judgment of the highest court of Kentucky, and which the state seeks to prevent him from exercising, were acquired under an agreement that constituted a contract within the meaning of the Federal Constitution. This contention is disputed by the State. So that the issue presented makes it necessary to enquire whether that which the defendant asserts to be a contract was a contract of the class to which the Constitution of the United States refers. This court must determine—indeed, it cannot consistently with its duty refuse to determine—upon its own responsibility, in each case as it arises, whether that which a party seeks to have protected under the contract clause of the Constitution of the United States is a contract the obligation of which is protected by that instrument against hostile state legislation.” Mobile & Ohio Railroad v. Tennessee, 153 U. S. 486; Knox County v. Ninth National Bank, 147 U. S. 91; McGahey v. Virginia, 135 U. S. 662. These cases thoroughly established the proposition that in no other way can the obligation of the Federal courts under the Constitution be discharged than by rigidly adhering to the right and duty to maintain the ultimate right of the Federal courts to protect the citizens of the United States, and of every State, in the enjoyment of rights and privileges guaranteed by the Federal Constitution. DEPOSIT BANK v. FRANKFORT. 519 191 U. S. Opinion of the Court. We suppose there is no question that if the state court had refused to give effect to the Hewitt law as a binding contract, and that question were presented here upon writ of error, and this court reached a different conclusion, holding the Hewitt law to constitute a contract, the judgment of the state court would be reversed for the denial of the right claimed under the Federal Constitution. In the present case we are asked to go further and sustain the judgment of the state court in the face of a judgment of a Federal Circuit Court, affirmed in this court, and duly invoked for the protection of the party in whose favor it was rendered in an action between the same parties. In Des Moines Navigation & Railroad Co. v. Iowa Homestead Co., 123 U. S. 552, a suit was brought in an Iowa court by the Homestead Company to recover taxes for the years 1864 to 1871. The right to recover the same taxes had been litigated between the same parties and decided adversely to the Homestead Company in the case of Homestead Co. v. Valley R. R., 17 Wall. 153. The railroad company set up the decree in its favor as a bar to the action. The Homestead Company replied: “That the decree or judgment referred to is null and void, for the reason that the courts of the United States had no jurisdiction of said suit, and no legal power or authority to render said decree or judgment.” The Supreme Court of Iowa held that the question of prior adjudication had not been properly raised before it, and decided the case without considering the point. This court held that the point was duly made and that the Federal court had jurisdiction in the suit relied upon, and decided in 17 Wallace; and held further that the Supreme Court of Iowa, in refusing to give effect to the prior judgment as an estoppel, had denied to the Navigation Company the Federal right set up. In delivering the opinion, Mr. Chief Justice Waite said: As the Circuit Court entertained the suit, and this court, on appeal, impliedly recognized its right to do so, and proceeded to dispose of the case finally on its merits, certainly our decree cannot, in the light of prior adjudications on the same 520 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. general question, be deemed a nullity. It was, at the time of the trial in the present case in the court below, a valid and subsisting prior adjudication of the matters in controversy, binding on these parties, and a bar to this action. In refusing so to decide, the court failed to give full faith and credit to the decree of this court under which the Navigation and Railroad Company claimed an immunity from all liability to the Homestead Company on account of the taxes sued for, and this was error.” This reasoning is applicable here. The decree of the Federal court of 1898 gave judgment that the bank had a contract absolving it from all taxes, including those sued for. When the state court refused to give that judgment effect it denied a right secured by the Federal court judgment upon matters wherein its decision was final until reversed in an appellate court, or modified or set aside in the court of its rendition. In our judgment the adjudication of the Federal court relied upon here, although based upon the judgment of a state court given as a reason therefor, is equally effectual as it would have been had the Federal court reached the conclusion, as upon the original question, that the Hewitt law constituted a binding contract between the parties. Any other conclusion strikes down the very foundation of the doctrine of res judicata, and permits the state court to deprive a party of the benefit of its most important principle, and is a virtual abandonment of the final power of the Federal courts to protect all who come before them relying upon rights guaranteed by the Federal Constitution and established by the judgments of the Federal courts. It is true that the final determination of the courts that the Hewitt law did not constitute a contract, and the reversal of the state court judgment which was the basis of the decree in the Federal court, renders this case one where a court might wish to avoid the application of rules which may seem technical. But the protection of the right of parties as well as the interest of the public to end litigation by a final judgment, and to preserve inviolate the safeguards of the Federal Constitution, should never be overlooked in view of the hardship of particular DEPOSIT BANK v. FRANKFORT. 521 191 U. S. Fuller, Ch. J., Brewer, Brown and Peckham, JJ., dissenting, cases. And we repeat that we are not dealing with any right of relief which the State may have in the Federal court wherein the original decree was rendered. Judgment reversed and cause remanded. Mr. Chief Justice Fuller, with whom concurred Mr. Justice Brewer, Mr. Justice Brown and Mr. Justice Peckham, dissenting: This was a petition in equity filed by defendant in error in the Circuit Court of Franklin County, Kentucky, seeking the recovery of certain taxes for the years 1893 and 1894, penalties and interest. To revise the judgment of the Court of Appeals of Kentucky rendered November 19, 1901, this writ of error was sued out, and the question is whether that court erred in declining to direct the Franklin Circuit Court to sustain a plea of former adjudication by the decree of the Circuit Court of the United States rendered June 25, 1898, in enforcement of a decree of the Franklin Circuit Court rendered in the same case February 1, 1896, and which was reversed by the state Court of Appeals, June 19, 1900. The plea or supplemental answer was filed in the Franklin Circuit Court, February 1, 1901, on the remanding of the case to that court. The case went off on other points, but, being again carried to the Court of Appeals, it was held that as the taxes involved in this case were those for 1893 and 1894, and those involved in the case in the United States court were the taxes for 1895, 1896, 1897 and 1898, and as it was the settled law of Kentucky that an adjudication in respect of the taxes of one year was not a bar to recovery in litigation in respect of the taxes of another year, the decree of the United States Circuit Court, based on the reversed decree in this case, could not be treated as a bar to the collection of the taxes for 1893 and 1894, on the view that the thing adjudged was the existence of a contract created by the Hewitt law, which exempted the banks from liability for such taxes during the lifetime of 522 OCTOBER TERM, 1903. Fuller, Ch. J., Brewer, Brown and Peckham, JJ., dissenting. 191 U. S. their charters; and that to decide otherwise would be to hold that the prior decree in this case, though reversed, was nevertheless made binding by the decree of another jurisdiction rested upon it, as having determined the invalidity of taxes of other years, notwithstanding the law of the State to the contrary. And the Court of Appeals was fortified in its conclusion by the fact that the Supreme Court of the United States, the Court of Appeals, and the Circuit Court of the United States in opinions delivered at the time of the rendition of the decree in question, had all held that the Hewitt law did not constitute an irrevocable contract. The case before us stands in the same situation as if the Franklin Circuit Court had overruled the plea of former adjudication and rendered decree for complainant, and the Court of Appeals had thereupon affirmed that decree; and it seems to me that the Franklin Circuit Court could not have done otherwise in view of the law of the State in respect of litigation as to taxes of different years. Moreover there is a distinction between estoppel by decree and estoppel by the findings on which the decree rests, in that the one operates as a bar to subsequent suits on the same cause of action, and the other to further litigation of the particular issuable facts found. And I submit that the thing adjudged by the Circuit Court of the United States was not that the Hewitt law constituted a contract between the State and the banks, which exempted the banks from this taxation, but was that the Board of Councilmen was estopped to deny the alleged contract because o the decree of the Franklin Circuit Court. This is explicitly stated in the decree as the ground of the decree, and the decree could have rested on no other ground, as the suit was in effect a suit to enforce the state court decree, and, conceding t e potency attributed to the doctrine of res judicata, the Circui Court of the United States could not have exercised an original judgment on the question of contract or not, but was com DEPOSIT BANK v. FRANKFORT. 523 191 U. S. Fuller, Ch. J., Brewer, Brown and Peckham, JJ., dissenting, pelled to accept the existence of the contract as “established” by the decree of the Franklin Circuit Court. I think it follows that when a decree rests on the establishment by a prior decree of a certain conclusion of law, such ground of the prior decree cannot be treated as merely reasons for the later decree, which as mere reasons may be ignored; and that this must necessarily be so when the court rendering the later decree is shut up to the single question of estoppel. This being so, I differ entirely from the view that the controversy in the Federal court was at large as to the force and effect of the Hewitt law as a contract exempting the banks from taxation not only for the specified years but for all other years. The decree cannot be treated as giving to the Franklin Circuit decree a wider scope than the law of the State allowed, and the law of the State was that the doctrine of res judicata is not applicable to taxes for years other than those under consideration in the particular case. See Union &c. Bank v. Memphis, 189 U. S. 71, 75, and cases cited. It is true that the decree of the United States Circuit Court enjoined the taxes involved in that suit, and also the taxes for subsequent years, but this was upon the express ground that the decree of the state Circuit Court had established a contract of exemption during the corporate existence of the bank; and whatever the terms of the latter decree, the state law permitted a renewal of the controversy in respect of taxes not directly involved. To apply the Federal decree to any other than the taxes enumerated is to hold that matters of public law can be placed by estoppel beyond the power of reconsideration, a doctrine not heretofore favored by this court. Boyd v. Alabama, 94 U. S. 645; Brownsville v. Loague, 129 U. S. 493; O’Brien v. Wheelock, 184 U. S. 450. It is the duty of the state courts as well as of the Federal courts to see to it that no act of a state legislature impairing the obligation of a contract is sustained, and it is the duty of the ederal courts as well as of the state courts to see to it that no act of a state legislature is avoided on the pretext of impair 524 OCTOBER TERM, 1903. Fuller, Ch. J., Brewer, Brown and Peckham, JJ., dissenting. 191 U. S. ment of the obligations of a contract, when in fact there is no contract to impair. Here this court and the highest court of the state of Kentucky agree that there is no contract, and yet a valid law of Kentucky is overthrown on the pretence of a contract which confessedly has no existence. The reason given is that the Federal court once held that there was a contract when in truth that court held that there was no contract, but that defendant in error was estopped to assert that fact by reason of a judgment of the state court, which has since been duly vacated. The decision is, therefore, not based upon any provision of the Federal Constitution, but upon a rule of general law as to the conclusiveness of a judgment.’ But that rule of general law is, like any other, subject to modification or change by the State, and it is as true of Kentucky as of Tennessee that the rule of res judicata as applied to taxes does not embrace other taxes than those immediately in litigation. Repeated decisions of this court are that a Federal judgment is entitled to the same consideration as a state judgment, “no more and no less,” and we held in Union Bank v. Memphis that what effect a judgment of a state court shall have as res judicata is a question of state law. In my judgment the state courts in rendering decree for the taxes of 1893 and 1894 did not refuse to give the Federal decree such effect as it was entitled to. Of course, I express no opinion as to the taxes for 1895,1896, 1897 and 1898, the immediate subject of the bill in the United States court. The situation of that case is peculiar. The decree of that court was affirmed in this court on appeal by an equal division, May 15, 1899. 174 U. S. 800. Leave was subsequently granted by this court to appellants to apply f° the Circuit Court for leave to file such bill as counsel might be advised. The present defendant in error (appellant there) accordingly applied to that court for leave to file a bill of re view, which was denied. 120 Fed. Rep. 165. The case was then carried to the Circuit Court of Appeals for the Sixth # cuit, and that court affirmed the order of the Circuit Co DEPOSIT BANK v. FRANKFORT. 525 191 U. S. Fuller, Ch.’ J., Brewer, Brown and Peckham, JJ., dissenting. 124 Fed. Rep. 18. The court stated that the judgment of the Franklin Circuit Court rested on a former decision of the Court of Appeals of Kentucky holding the revenue act of 1892 void as an impairment of the state’s contract with the banks, and that, after the decree of the United States Circuit Court, the Court of Appeals of Kentucky overruled its former decision; and the United States Court of Appeals then held that the consequent reversal of the Franklin Circuit judgment furnished no adequate ground for the revision of the decree of the United States Circuit Court. The prior decision of the Court of Appeals of Kentucky was rendered June 1, 1895, and is reported 97 Kentucky, 590. That decision was overruled by a decision rendered March 24, 1897, and reported 19 Ky. L. Rep. 248. The decree of the Circuit Court of the United States was rendered June 25, 1898. There were many cases under consideration in the state Court of Appeals, and it happened that the decree of the Franklin Circuit Court was not in fact reversed until June 19,1900. But as the ground on which that decree rested had been swept away in 1897, the Circuit Court of the United States might well have applied the rule laid down by Lord Redesdale, that where a party comes into a court of equity to have the benefit of a former decree, the court is at liberty to inquire whether the circumstances justified the relief. Mitf. Pl. 96; 138 U. S. 552, 561. This was not done, and the Federal decree has not, as yet, been set aside. But Lord Redesdale’s rule is applicable in this case, and that is in itself sufficient to require the affirmance of the judgment of the Court of Appeals of Kentucky. My Brothers Brewer, Brown and Peckham concur in this dissent. 526 OCTOBER TERM, 1903. Statement of the Case. 191U. S. SPENCER v. DUPLAN SILK COMPANY. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIR- CUIT. No. 83. Argued December 7, 1903.—Decided December 21,1903. A suit does not arise under the Constitution and laws of the United States unless a dispute or controversy as to the effect or construction thereof, upon the determination of which the result depends, appears in the record by the plaintiff’s pleading. Where jurisdiction of the Circuit Court is rested on diverse citizenship and plaintiff relies wholly on a common law right, the fact that defendant invokes the Constitution and laws of the United States does not make the action one arising under the Constitution and laws of the United States and the judgment of the Circuit Court of Appeals is final. Where a trustee in bankruptcy commences an action in the state court its removal on the ground of diverse citizenship places it in the Circuit Court as if it had been commenced there on that ground of jurisdiction and not as if it had been commenced there by consent of defendant under section 23 of the bankruptcy act. This was an action of trover commenced by plaintiff in error in the Court of Common Pleas for the County of Lehigh, Pennsylvania, October 18,1900, the declaration averring in substance that on January 13, 1900, certain lumber and building materials were the property of the firm of Bennett & Rothrock, and that by virtue of an adjudication in bankruptcy of that date plaintiff succeeded to the title of that firm to said lumber and materials, and that on January 15, 1900, defendant in error wrongfully converted the lumber and materials to its own use. November 19, 1900, defendant in error presented its bond and petition for the removal of the cause to the Circuit Court of the United States for the Eastern District of Pennsylvania, the petition alleging that the controversy in the suit was whol y between citizens of different States; that the plaintiff, trustee in bankruptcy of Bennett and Rothrock, and Bennett an Rothrock themselves, were at the time of the commencement SPENCER v. DUPLAN SILK CO. 527 191 U. S. Opinion of the Court. of the suit, and at the time the petition for removal was presented, citizens of the State of Pennsylvania; and that the defendant was at the time of the commencement of the suit, and at the time the petition for removal was presented, a citizen of New York; and thereupon the cause was removed. The cause having been docketed and the record filed, defendant filed a plea of not guilty, and a trial was had November 11, 1901, resulting in a verdict for plaintiff for $12,183. January 15, 1902, a motion by defendant for judgment non obstante veredicto was overruled and judgment entered in favor of plaintiff, 112 Fed. Rep. 638, to review which defendant prosecuted a writ of error from the United States Circuit Court of Appeals for the Third Circuit, and that court on May 7, 1902, reversed the judgment of the Circuit Court and remanded the cause with instructions to enter judgment for defendant on the verdict. 115 Fed. Rep. 689. This writ of error was then allowed. Mr. T. M. B. Hicks, with whom Mr. William H. Spencer and Mr. Clarence L. Peaslee were on the brief, for plaintiff in error. Mr. Richard C. Dale and Mr. William T. C. Anderson, with whom Mr. William J. Turner was on the brief, for defendant in error, Mr. Chief Justice Fuller delivered the opinion of the court. In our opinion the jurisdiction of the Circuit Court depended entirely on diverse citizenship, the judgment of the Circuit Court of Appeals was final, and the writ of error must be discussed. Colorado Central Consolidated Mining Company v. Turck, 150 U. S. 138; Borgmeyer, Admr., v. Idler, 159 U. S. 408; Dress Publishing Company v. Monroe, 164 U. S. 105. The views expressed in the latter case will suffice to indicate the governing rules. In that case the complaint in the Circuit 528 OCTOBER TERM, 1903. 191 U. S. Opinion, of the Court. Court showed that the parties were citizens of different States, and did not claim under the Constitution or laws of the United States. At the trial plaintiff relied wholly upon a common law right, but defendant invoked the Constitution and laws of the United States. Judgment having passed for plaintiff, which was affirmed by the Circuit Court of Appeals, we dismissed a writ of error to that court on the ground that its judgment was made final by the statute. Mr. Justice Gray, delivering the opinion, said: “Of suits of a civil nature, at law or in equity, the Circuit Courts of the United States have original jurisdiction, by reason of the citizenship of the parties, in cases between citizens of different States or between citizens of a State and aliens; and by reason of the cause of action, ‘in cases arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority,’ including, of course, suits arising under the patent or copyright laws of the United States. Act of August 13, 1888, c. 866, § 1; 25 Stat. 433; Rev. Stat. § 629, cl. 9. In order to give the Circuit Court jurisdiction of a case as one arising under the Constitution, laws or treaties of the United States, that it does so arise must appear from the plaintiff’s own statement of his claim. Colorado Company v. Turck, 150 U. S. 138; Tennessee v. Union & Planters’ Bank, 152 U. S. 454; Oregon &c. Railway v. Skottowe, 162 U. S. 490; Hanford v. Davies, 163 U. S. 273. “From final judgments of the Circuit Court in civil suits an appeal or writ of error lies to this court, or to the Circuit Court of Appeals. It lies directly to this court in any case in which the jurisdiction of the Circuit Court is in issue; and in such case the question of jurisdiction only is certified to and decided by this court. It also lies directly from the Circuit Court to this court in cases involving the construction or application of the Constitution, or the constitutionality of a law, or the vali -ity or construction of a treaty, of the United States, or in which the Constitution or a law of a State is claimed to be in contra- SPENCER v. DUPLAN SILK CO. 529 191 U. S. Opinion of the Court. vention of the Constitution of the United States; and in any of these cases the appellate jurisdiction of this court is not limited to the constitutional question, but extends to the determination of the whole case. Act of March 3, 1891, c. 517, section 5; 26 Stat. 827, 828; Horner v. United States, 143 U. S. 570; Chappell v. United States, 160 U. S. 499. “From final judgments of the Circuit Court in all other civil suits an appeal or writ of error lies to the Circuit Court of Appeals; and the judgments rendered thereon by the Circuit Court of Appeals are final (unless this court by writ of certiorari or otherwise, orders the whole case to be brought up for its decision) in all cases in which the jurisdiction of the Circuit Court ‘is dependent entirely upon the parties being aliens and citizens of the United States, or citizens of different States; ’ as well as in cases arising under the patent laws, or under the revenue laws. In all other civil actions (including those arising under the copyright laws of the United States), if the matter in controversy exceeds $1000, besides costs, there is, as of right, an appeal or writ of error to bring the case to this court. Act of March 3, 1891, c. 517, section 6. “This plaintiff in error, having been defeated in the Circuit Court, did not bring the case directly to this court, as one involving the construction or application of the Constitution of the United States, or upon any other of the grounds specified in section 5 of the act of 1891. But it took the case, under section 6, to the Circuit Court of Appeals, and having been again defeated in that court, now claims, as of right, a review by this court of the judgment of the Circuit Court of Appeals. “The judgment bf the Circuit Court of Appeals being made final in all cases in which the jurisdiction of the Circuit Court is dependent entirely upon the parties being citizens of different States, but not final in cases arising under the copyright laws of the United States, where the matter in controversy exceeds $1000, the test of the appellate jurisdiction of this court over the case at bar is whether it was one arising under the copyright laws of the United States, or was one in which vol. cxci—34 530 OCTOBER TERM, 1903. 191 U. S. Opinion, of the Court. the jurisdiction of the Circuit Court wholly depended upon the parties being citizens of different States. “The complaint, alleging that the plaintiff was a citizen of Illinois and the defendant a citizen of New York, and claiming damages in a sum of more than $2000, showed that the Circuit Court had jurisdiction of the case by reason of the parties being citizens of different States. The plaintiff, in her complaint, did not claim any right under the Constitution and laws of the United States, or in any way mention or refer to that Constitution or to those laws; and, at the trial, she relied wholly upon a right given by the common law, and maintained her action upon such a right only. It was the defendant, and not the plaintiff, who invoked the Constitution and laws of the United States. This, as necessarily follows from the foregoing considerations, and as was expressly adjudged in Colorado Co. v. Turck, above cited, is insufficient to support the jurisdiction of this court to review, by appeal or writ of error, the judgment of the Circuit Court of Appeals. “The jurisdiction of the Circuit Court having been obtained and exercised solely because of the parties being citizens of different States, the judgment of the Circuit Court of Appeals was final, and the writ of error must be dismissed for want of jurisdiction.” In the present case it is contended that the jurisdiction was not dependent entirely on the opposite parties to the suit being citizens of different States, because the suit arose under the laws of the United States, and that therefore jurisdiction rested also on that ground. But a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution, or validity or construction of the laws or treaties of the United States, upon the determination of which the result depends, and which appears in the record by plaintiff’s pleading. Arbuckle v. Blockbum, ante, p. 405; Western Union Telegraph Co. v. Ann Arbor Railroad Co., 178 U. S. 239; Muse v. Arlington Hotel Co., 168 U. S. 430. SPENCER v. DUPLAN SILK CO. 531 191 U. S. Opinion of the Court. Plaintiff’s declaration set forth no matter raising any controversy under the Constitution, laws or treaties of the United States. It is true that if the lumber and materials belonged to Bennett and Rothrock on January 13, 1900, plaintiff in error succeeded to the title of the firm on the adjudication, but the question of Bennett and Rothrock’s ownership on that day in itself involved no Federal controversy, and the mere fact that plaintiff was trustee in bankruptcy did not give jurisdiction. Bardes v. Bank, 178 U. S. 524. Indeed if the case had not been removed and had gone to judgment in the Court of Common Pleas, and that judgment had been affirmed by the Supreme Court of Pennsylvania on the same grounds as those on which the Circuit Court of Appeals proceeded, a writ of error could not have been brought under section 709 of the Revised Statutes, for the case would not have fallen within either of the classes enumerated in that section as the basis of our jurisdiction. The validity of the bankruptcy act was conceded, and no right specially set up or claimed under it was denied. Section 23 of the bankruptcy law does not enable us to maintain jurisdiction. The first two clauses read (before the amendment of February 5, 1903) as follows: “Sec. 23a. The United States Circuit Courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants. b. Suits by the trustee shall only be brought or prosecuted m the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them ff proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant.” Plaintiff brought his action in the state court, and its re- 532 191 U. S. OCTOBER TERM, 1903. Statement of the Case. moval on the ground of diverse citizenship placed it in the Circuit Court as if it had been commenced there on that ground of jurisdiction, and not as if it had been commenced there by consent of defendant under section 23 of the bankruptcy act. The right to removal is absolute and cannot be trammeled by such a consequence. Nor can this writ of error be sustained under section 25 of the bankruptcy law, for the section has no application. The reasons for that conclusion will be found in Holden v. Stratton, ante, p. 115. As to the suggestion that certiorari might now be issued, the judgment of the Circuit Court of Appeals was rendered May 7, 1902, and there is nothing to take the case out of the general rule. The Conqueror, 166 U. S. 110, 114; Ayres v. Polsdorfer, 187 U. S. 585, 595. Writ of error dismissed. TOLTEC RANCH COMPANY v. COOK. ERROR TO THE SUPREME COURT OF THE STATE OF UTAH. No. 48. Argued November 3, 1903.—Decided December 21,1903. Adverse possession gives a title to land together with the remedies which attach to the title as effectually as a conveyance from the owner. Adverse possession under claim of right for the period prescribed by the statute of limitations of the State of Utah after the act granting the land and before a patent has been issued by the United States to the Central Pacific Railroad Company for a part of its land grant within that State, and not within its right of way, will prevail against the patent. The Toltec Ranch Company, a California corporation, brought this action in 1901 in the District Court of the First Judicial District, Box Elder County, State of Utah, to quiet title to the S.E. of the S.E. | of section 27, township 8, north of range 2 west, Salt Lake meridian, United States survey. Title in fee was alleged. The defendants answered separately, TOLTEC RANCH CO. v. COOK. 533 191 U. S. Statement of the Case. claiming different portions of the land, and each alleged peaceable, continuous and adverse possession under claim of title in himself and grantors adversely to the plaintiff for more than thirty years, and that plaintiff’s cause was “barred by the statute of limitations as provided by sections 2856 and 2872, inclusive, of the Revised Statutes of Utah.” Under these sections to constitute a bar there must be an adverse holding for at least seven years. The title of plaintiff, it was admitted, was derived as follows: Patent from the United States dated January 20, 1900, to the Central Pacific Railroad Company; the railroad company by deed dated October 17, 1895, to D. P. Tarpey; the latter and wife to M. F. Tarpey by deed December 8, 1895; M. F. Tarpey to plaintiff, October 17, 1896. The patent to the company was issued in pursuance of the grant to the company made by the act of Congress approved July 1, 1862, as amended by the act of July 2, 1864, to aid in the construction of a railroad and telegraph line from the Missouri to the Pacific Ocean. 12 Stat. 489, c. 120; 13 Stat. 356, c. 216. It was admitted that the land in controversy was within the ten-mile limit of the grant to the company, and that the map of location of the railroad was filed in the office of the Secretary of the Interior on the 20th of October, 1868. It was also admitted that no claim of any right or title to or m the right of way of the Railroad Company across the lands m controversy was made by any or either of the defendants. The defendants introduced evidence to sustain the averments of their answers. The case was submitted to a jury on special interrogatories, and the jury found that the defendants had been in possession °f the land claimed by them, either by themselves or.their predecessors and grantors, from some time in 1868 to the commencement of the action. The jury also returned the following verdict: “We, the jury empanelled in the aboveentitled cause, find the issues joined herein in favor of the said defendants and against the plaintiff, no cause of action.” 534 OCTOBER TERM, 1903. Argument for Plaintiff in Error. 191 U. S. Judgment was entered upon the verdict. It was affirmed by the Supreme Court of the State. The court said, after discussing questions with which we are not concerned: “The next question for consideration is whether the statute of limitations can prevail as a bar to the action when it appears that the patent of the United States Government was not issued to the plaintiff until January 20, 1900.” The question was answered in the affirmative. The chief justice of the State granted this writ of error. Mr. Maxwell Evarts, with whom Mr. Lindsay R. Rogers and Mr. T. D. Johnson were on the brief, for plaintiff in error: Under the authority of Deseret Salt Co. v. Tarpey, 142 U. S. 241, and Tarpey v. Madsen, 178 U. S. 215, the lower court held that the statute of limitations ran in favor of the defendants, as well before as after the issuance of the patent to the Railroad Company and unless this were true the defendants must fail. Under the provisions of the statutes of the Territory and State of Utah, there must be an adverse holding of lands for at least a period of seven years by the defendants, before its provisions can be invoked. Comp. Laws, Utah, 1888, vol. 2, 220; Rev. Stat. Utah, 1898, 634. This action was commenced in the year 1901, the patent of the government was issued to the Railroad Company January 20, 1900. It is undoubtedly the' law that the statute of limitations has no application and cannot be invoked inJayor of a party claiming title thereunder, so long as the legal title remains in the government. Redfield v. Parks, 132 U. S. 239, Gibson v. Chouteau, 13 Wall. 92; Bagnell v. Broderick, 13 Pet. 436;.Lindsey v. Miller’s Lessee, 6 Pet. 666; Langdon v. Sherwood, 124 U. S. 74, 85. In Steele v. Boley, 7 Utah, 64, it was held that the statute of limitations of Utah did not run against a patentee of public land from the date of the final payment for the land, but from the date of the issuance of the patent therefor by the United States, reversing former decisions o TOLTEC RANCH CO. v. COOK. 535 191 U. S. Argument for Plaintiff in Error. the Utah courts on authority of Redfield v. Parks, supra. Salt Co. v. Tarpey, 124 U. S. 241, apparently overruled R. R. Co. v. Prescott, 16 Wall. 603, but the latter case was reaffirmed in Ankeny v. Clark, 148 U. S. 345, and Wisconsin R. R. Co. v. Price County, 133 U. S. 496, does not hold that the legal title to the land passed to the railroad company prior to a patent from the United States. See Northern Pacific Ry. v. Townsend, 190 U. S. 267, that mere filing of map is inconsistent with the power in an individual to acquire any part of the land granted until the patent has issued. Barden v. Northern Pacific R. R. Co., 154 U. S. 288, either overrules Salt Co. v. Tarpey, supra, or limits it to the particular case. And see Corrinne Co. v. Johnson, 156 U. S. 574. Langdeau v. Hanes, 21 Wall. 521, has no bearing on this case. Section 21, act of July 2, 1864, providing for payment of cost of surveying before the issuing of the patent has been construed in Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444; Northern Pacific Railroad v. Traill County, 115 U. S. 600; Ankeny v. Clark, 148 U. S. 345; and it has invariably been held that a railroad company, notwithstanding the fact that it has filed its map of definite location, does not acquire a legal title to the land until it has paid the cost of surveying, selecting and conveying the same. There is no evidence in this case that the survey has been paid for or that the land was ever surveyed. The cases supra are not limited by Cent. Pac. R. R. Co. v. Nevada, 162 U. S. 512. No title was acquired by simply filing its map of definite location. The 4th section of the act of July, 1862, provides that patents shall issue conveying the right and title to said land. The right to assert adverse possession against the grantee of the government prior to the issue of a patent was not in anyway considered or decided in the case of Deseret Salt Co. v. Tarpey, 142 U. S. 241. The title (if any) acquired by the Railroad Company at the 536 OCTOBER TERM, 1903. Argument for Defendants in Error. 191 U. S. time of filing its map of definite location was a conditional fee and of such a character that the defendants in error could not acquire the land by limitation, as the United States still had an interest therein. As to how a Federal question may be set up so as to enable this court to take jurisdiction, see Home for Incurables v. City of New York, 187 U. S. 155; Parmelee v. Lawrence, 11 Wall. 36; Dewey v. Des Moines, 173 U. S. 193; Meyer v. Richmond, 172 U. S. 82. Mr. B. H. Jones for defendants in error submitted: Defendants established their defence under the statutes of limitations proving that adverse possession for a period exceeding thirty years had operated to transfer the plaintiff in error’s title. No Federal question is presented. Carpenter v. Williams, 9 Wall. 785; no question is raised as to the validity or operative effect of an act of Congress, the defence being the statute of limitations only. McStay v. Friedman, 2 Otto, 723; Romie v. Casanova, 1 Otto, 379; Elmendorf v. Taylor, 10 Wheat. 153. The withdrawal of all odd sections between Wyoming and Monument taking effect in May, 1862, is evidence that the definite location had preceded it. Newhall v. Sanger, 92 U. S. 762; Moffatt v. United States, 112 U. S. 30. The recitals in the patent showed that the line of the railroad from Ogden to Sacramento had bee'n constructed and fully completed and equipped prior to November 3, 1869. The title to the lands in dispute vested in the Railroad Company by virtue of the Pacific Railroad grants. It is no longer an open question that it was a grant in presenti and that the title vested upon that date. No one but the government can raise the lien question. That a grant may be made by a law as well as a patent pursuant to a law has been settled by the repeated decisions of this court. Ryan v. Carter, 3 Otto, 78; Langdeau v. Hanes, 21 Wall. 521. In 1868 the sections granted became susceptible of identifica- TOLTEC RANCH CO. v. COOK. 537 191 U. S. Opinion of the Court. tion, and the title then attached as of the date of the grant. Salt Co. v. Tarpey, 142 U. S. 241. Ever since the definite location of this railroad ejectment suits have been brought upon the legal title to the land granted by the Pacific Railroad Acts without regarding the patent. Corrinne Mill Canal & Stock Co. v. Johnson, 156 U. S. 574; Deseret Salt Co. v. Tarpey, 142 U. S. 241; Tarpey v. Madsen, 178 U. S. 215. As a matter of history, the only title to all the lands covered by the cities and towns and homestead and preemption claims in Utah between Wyoming and Nevada is that which arises by virtue of the statute of limitations. Forrester v. Scott, 92 California, 398; Jatunn v. Smith, 95 California, 154; N. P. R. R. Co. v. Whitaker, 109 California, 268. This action for the land in dispute was commenced before the issuance of a patent. The property having been held and possessed adversely to such legal title for thirty-two years before the commencement of the action. Under section 2861 Rev. Stat. Utah, 1898, the burden of proof was on the plaintiff in error. Tyler on Ejectment, 867; Green v. Hawkins, 19 How. 69. There is no evidence in this case showing an ouster, or an entry, or seizin or possession in plaintiff or its grantors since October 20, 1868, as required by section 2859, Rev. Stat. Utah, 1898. United States v. Chaves, 159 U. S. 452; United States v. Devereaux, 90 Fed. Rep. 182. Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court. The case is in narrow compass. The question presented is whether adverse possession under claim of right for the period prescribed by the statute of limitations of Utah before patent was issued by the United States can prevail against the latter. It has been decided by this court that adverse possession of land gives title to it and all of the remedies which attach to the 538 OCTOBER TERM, 1903. Opinion of the Court. 191 U. 8. title. This was expressly ruled in Sharon v. Tucker, 144 U. S. 533. The suit was a bill in equity to establish as matter of record a title acquired by adverse possession, and it was brought against those who but for such acquisition would have been the owners. Mr. Justice Field, speaking for the court, said: “It is now well settled that by adverse possession for the period designated by the statute, not only is the remedy of the former owner gone, but his title has passed to the occupant, so that the latter can maintain ejectment for the possession against such former owner should he intrude upon the premises. In several of the States this doctrine has become a positive rule, by their statutes of limitations declaring that uninterrupted possession for the period designated to bar an action for the recovery of land shall, of itself, constitute a complete title. Leffingwell v. Warren, 2 Black, 599; Campbell v. Holt, 115 U. S. 620, 623.” See also Shelly v. Guy, 11 Wheat. 361. Adverse possession, therefore, may be said to transfer the title as effectually as a conveyance from the owner; it may be considered as tantamount to a conveyance. And the Central Pacific Railroad Company had the title. Salt Co. v. Tarpey, 142 U. S. 241. It would seem, therefore, an irresistible conclusion that it could have been transferred by any of the means which the law provided. It is, however, contended otherwise, and Ankeny v. Clark, 148 U. S. 345; Barden v. Northern Pacific R. R. Co., 154 U. S. 288, and Nelson v. Northern Pacific Ry. Co., 188 U. S. 108, are urged to support the contention. A comparison of those cases with Salt Co. v. Tarpey becomes necessary. Salt Co. v. Tarpey was an action of ejectment. Tarpey was the plaintiff in the trial court. He relied for his title upon a lease from the Central Pacific Railroad Company, and it became necessary to consider the nature of the Congressional grant to that company. The issue made was direct and unmistakable, and the decision was equally so. The plaintiff contended that the grant vested in the company the legal title. It was asserted on the other hand that the title to the land was TOLTEC RANCH CO. v. COOK. 539 191 U. S. Opinion of the Court.. retained until the cost of selecting, surveying and conveying all the granted lands was paid, and, also, that by other provisions of the granting act the title remained in the government until patent issued. Both contentions were rejected. The court said that the terms of the grant1 ‘ import the transfer of a present title, not one to be made in the future. They are that ‘ there be and is hereby granted ’ to the company every alternate section of the lands. No partial or limited interest is designated, but the lands themselves are granted, as they are described by the sections mentioned. Whatever interest the United States possessed in the lands was covered by those terms, unless they were qualified by subsequent provisions, a position to be presently considered.” Those provisions were considered, and it was determined that they did not qualify the terms of the grant conveying the title or essentially limit them. Anticipating the question that if such be the import of the act, what was the necessity of patents, it was said, there were many reasons why the issue of patents would be of great service to the patentees. “While not essential to transfer the legal right the patents would be evidence that the grantee had complied with the conditions of the grant, and to that extent the grant was relieved from the possibility of forfeiture for breach of its conditions. . . . They would thus be in the grantee’s hands deeds of further assurance of his title, and, therefore, a source of quiet and peace to him in its possession.” And the conclusion was that the title transferred was a legal title, as distinguished from an equitable and inchoate interest. The distinction expressed the completeness of the title conveyed. Ankeny v. Clark was an action for the recovery of the value of 12,767 bushels of wheat, which had been delivered by Clark to Ankeny in pursuance of a contract by which Ankeny agreed to sell and deliver to Clark two sections of land in Walla Walla County, in what was then the Territory of Washington. After the delivery of the wheat Clark demanded a deed for the land. Ankeny, after some delay on one pretext or another, informed Clark that he could have a warranty deed to a part of the land, 540 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. and a quitclaim deed to the part which was called railroad land, and informed him, as to the latter part, that if the Northern Pacific Railroad Company could not get title he would be obliged to procure title from the government. Ankeny promised to pay the necessary expenses of obtaining title in that way. Clark refused the offer and gave notice that, unless a good title was conveyed to him for the whole of the land within five days, he would abandon possession and claim compensation for the violation of the contract. Ankeny paid no attention to the notice, and Clark brought suit for the value of the wheat and recovered. The case came to this court from the Supreme Court of the Territory. In passing on the case this court said there were three principal matters of contention in the trial court. We are concerned with only one of them, and that is, “Did Ankeny have good title to the northeast quarter of section 19, being part and parcel of the lands which he agreed to sell to Clark?” Clark asserted the negative of the question; Ankeny contended for the affirmative, and cited Salt Co. v. Tarpey. The court did not find it necessary to decide the issue thus accurately presented. It followed Salt Co. v. Tarpey, to the effect that the government could enforce the payment of the costs and could withhold the patents until they were paid, and this, it was said, gave “the government a lien for said costs.” And it was hence held that Ankeny “did not hold such a title as it was obligatory on the plaintiff (Clark) to accept.” But Salt Co. v. Tarpey was not questioned. It was only decided that the land was subject to a lien and, so burdened, Clark was not compelled to receive it. Barden v. Northern Pacific R. R. Co., 154 U. S. 288, was an action by the Railroad Company for the recovery of certain lands containing veins or lodes of rock in place bearing gold, silver and other precious metals. The plaintiff relied for title upon its grant. The defendant contended that the lands were excepted by express words from the grant. This contention was sustained. It is manifest, therefore, that the case in no way militates with the decision in Salt Co. v. Tarpey, and the TOLTEC RANCH CO. v. COOK. 541 191 U. S. Opinion of the Court. court said so. Mr. Justice Field was the organ of the court in both cases, and he expressed the inapplicability of the Tarpey case and left it unimpaired. What was there said was affirmed, that the title passed at the date of the grant. Of what lands? Of those, it was held, which were not reserved as mineral. In other words, mineral lands were not conveyed, whether known or unknown to be such at the time of the grant. This was the main question decided. It was also held that the issue of patent would constitute a determination of the character of the land by reason of the power of the Land Department to determine and establish it. But it was not intimated, nor does it follow, that the conveyance of the title to the company was by the patent and not by the granting act. There was, therefore, nothing decided which detracts from Salt Co. v. Tarpey. Nelson v. Northern Pacific Railway was an action brought by the Railway Company to recover the possession of a quarter section of land claimed to be within the land grant of the Northern Pacific Railroad, and the company held a patent. Nelson claimed to have settled upon the land three years before the definite location of the road. He claimed, therefore, to be within the exceptions of the grant. The land when he settled upon it was unsurveyed, and the effect of this constituted one of the questions in the case. Upon the filing of a map by the Railroad Company of its general route, an order was made by the Land Department withdrawing from settlement the lands within the limits of the grant. The effect of this order was another question in the case. It was held “that the Railroad Company did not acquire any vested interest in the land here in dispute in virtue of its map of general route or the withdrawal order based on such map,” and it was further held that Nelson’s settlement upon and occupancy of the land was valid, and constituted a claim upon the land within the meaning of the Northern Pacific act of 1864. In other words, it was held that the land was excluded from the grant by express words. Thé operative words which produced that effect were expressed in the following provision of section 3 of the act: “And wherever, 542 OCTOBER TERM, 1903. Counsel for Parties. 191 U. S. prior to said time, [of definite location] any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof,” etc. This view was established in an elaborate opinion. The case, therefore, like Barden v. Northern Pacific R. R., decided only that lands did not pass by the grant which were reserved from it. An evident proposition, whatever might have been the difficulties in determining what lands were reserved. And there were difficulties. This court in consequence divided in opinion. But those difficulties do not confront us in the case at bar. They are settled, and in their settlement no doubts were cast upon the efficacy of the grants to convey title to all the lands they covered—to all that were not reserved from them. Judgment affirmed. Mr. Justice Brewer concurs in the judgment. TOLTEC RANCH COMPANY v. BABCOCK. ERROR TO THE SUPREME COURT OF THE STATE OF UTAH. No. 49. Argued November 3,1903.—Decided December 21,1903. Adverse possession under claim of right for the period prescribed by the statute of limitations of the State of Utah after the act granting the land and before a patent has been issued by the United States to the Central Pacific Railroad Company for a part of its land grant within that State, and not within its right of way, will prevail against the patent. The facts are stated in the opinion. Mr. Maxwell Evarts for plaintiff in error. Mr. Lindsay R-Rogers and Mr. T. D. Johnson were on the brief. Mr. B. H. Jones for defendant in error, submitted. TOLTEC RANCH CO. v. BABCOCK. 543 191 U. S. Opinion of the Court. Mr. Justice McKenna delivered the opinion of the court. Plaintiff in error is a corporation, and brought this action in 1899 in the District Court of the First Judicial District of the State of Utah, county of Box Elder, for the recovery of the possession of sixty-four acres of land in section 17, township 11, north of range 2 west. The plaintiff alleged title in fee. The answer alleged that defendant, William Babcock, held the land as agent of his wife Louisa Babcock, who settled upon it as a homesteader, having the qualifications thereof, in 1867, erected improvements of the value of $1500, and that the land was reserved from the grant of the Central Pacific Railroad Company. The answer also alleged continuous adverse possession for thirty years under the statutes of Utah. The replication admitted Louisa Babcock had been in exclusive possession for thirty years, neither admitted nor denied that the land was within the grant to the Railroad Company, denied the value of the improvements, and denied also that the action was barred by the sections of the statute of limitations cited by the defendant’s answer. Louisa Babcock intervened. She denied the allegations of the plaintiff, set up her settlement as a homesteader and the rights acquired by exclusive and adverse possession under sections 2858 to 2872, inclusive, of the Revised Statutes of Utah. She also alleged that “on the 5th day of September, 1896, under a mistake and entirely without authority of law, a patent of the United States was issued purporting to convey to the Central Pacific Railroad Company, under the acts of Congress granting lands to the Pacific railroads, the lands in controversy.” And she prayed that “said patent be annulled and set aside, and for such other and further relief as may be just.” The plaintiff, answering the complaint in intervention, admitted the issuance of the patent, but denied all other allegations. There was also an action brought by the Toltec Company 544 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. against Babcock for hay and alfalfa seed alleged to have been grown upon the land. The answer raised the issues presented in the ejectment case. The plaintiff depended for title upon a patent issued to the Central Pacific Railroad Company the 5th of September, 1896, in pursuance of the acts of Congress of July 1, 1862, and July 2, 1864,12 Stat. 489, c. 120; 13 Stat. 356, c. 216, and a conveyance from the company to it by deed dated November 4, 1897. Against this title adverse possession was claimed as we have seen. The cases were tried together and to a jury, which found “the issues in favor of the defendants and against the plaintiff, ‘no cause of action.’” Judgment was entered for defendants. It was affirmed by the Supreme Court of the State on appeal. 66 Pac. Rep. 876. The court concluded its opinion as follows: “From the foregoing considerations, and from a careful examination of the proof, we are of the opinion that the intervenor is entitled to hold the land in controversy, and the crops raised thereon, by adverse possession, and that, as against the plaintiff, she has the absolute title thereto. We see nothing in the record which justifies a reversal. The judgment is affirmed, with costs.” This writ of error was allowed by the Chief Justice of Utah. It presents the same questions which have been decided in Toltec Ranch Company v. Cook et al., ante, p. 532. On the authority of that case, therefore, the Judgment is affirmed. Mr. Justice Brown concurs in the judgment. WHITE v. UNITED STATES. 545 191 U. S. Argument for Appellant. WHITE v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 75. Argued November 11, 12,1903.—Decided Deeember 21,1903. Retrospective legislation is not favored. Unless the intention that a law is to have a retrospective operation is clearly evidenced in the law and its purposes the court will presume that it was enacted for the future and not for the past. The provisions of the Navy Personnel Act of March 3, 1899, 30 Stat. 1004, as to crediting officers appointed from civil life with five years’ service on the date of appointment for the purpose of computing their pay apply to the pay of officers theretofore appointed from the commencement of the then next fiscal year, when the act by its terms went into operation, and such provisions do not apply to readjusting compensation for any period prior thereto, thereby giving increased pay to officers who had reached maximum pay before the passage of the act. The case is stated in the opinion. Mr. George A. King and Mr. William B. King for appellant: The clause relied on in sec. 13, act of March 3, 1899, is the second clause of the third proviso, to the effect that all officers, including warrant officers, who have been or may be appointed to the Navy from civil life, be credited for computing their pay, with five years’ service. The natural meaning of the words is that the officer shall be treated as if he had been appointed five years before his actual appointment. For effects produced by length of service in the Navy, see Hawkins v. United States, 19 C. Cl. 618. As to rules for interpretation of a statute of this nature, see Jaeger v. United States, 27 C. Cl. 278; Dewey v. United States, 178 U. S. 510. It should be interpreted literally and the words given their natural meaning. Sturges v. Crowninshield, 4 Wheat. 122, 202; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 36; Hadden v. Collector, 5 Wall. 107; McCluskey v. Cromwell, 11 N. Y. 593, 601. There are precedents for appellant’s contention in decisions affecting the statute of March 3, 1883, 22 Stat. 473; Hawkins vol. cxci—35 546 OCTOBER TERM, 1903. 191 U. S. Argument for Appellant. v. United States, 19 C. Cl. 611; United States v. Rockwell, 120 U. S. 60; United States v. Green, 138 U. S. 293; United States v. Dunn, 120 U. S. 250; United States v. Hendee, 124 U. S. 309; Brown v. United States, 32 C. Cl. 379; United States v. Mullan, 123 U. S. 186 (involving act of July 15, 1870, 16 Stat. 330); United States v. Baker, 125 U. S. 646; Jordan v. United States, 19 C. Cl. 621, in which amounts were allowed to officers for previous services varying from 84.17 to 813,879. As to system of longevity pay, see Thornley v. United States, 18 C. Cl. 117. As to the rule against retroactive legislation, Black on Interpretation of Laws, p. 256; Ex parte Buckley, 53 Alabama, 42; Cooley’s Const. Lim. 369; Sedgwick on Statutes and Constitutional Law, 161; Society &c. v. Wheeler, 2 Gall. 139; Hine v. Pomeroy, 39 Vermont, 211; Stoddard v. Smith, 5 Binney, 355; Bolton v. Jones, 5 Barr, 145. In the present instance no vested rights are destroyed, no new penalties, forfeitures or disabilities are imposed. The granting of a gratuity by Congress is not of so extraordinary a character that all presumptions must be against it. The giving of gratuities to persons for present or past military and naval service is a common feature of Congressional legislation. For instance the act of July 19,1848, § 5,9 Stat, at L., 248, granted extra pay to the volunteers of the Mexican War, itself a gratuity. It was not granted to the Regular Army. United States v. Merrill, 9 Wall. 614. Thirty years later Congress passed an act by which the officers of the Regular Army who served in that war were entitled to extra pay. Emory v. United States, 19 C. Cl. 254; United States n. Emory, 112 U. S. 610. See also 20 Stat. 265, 470, providing for pensions. The additional bounty granted by the act of July 28, 1866, 12, 13, 14 Stat, at L., 32, was a pure gratuity of thousands of dollars from a depleted treasury. The credit to naval officers for volunteer service was a gratuity under the act of March 3, 1883, 22 Stat, at L., 473. See also United States v. Bowen, 100 U. S. 508; Adams v. United States, 20 C. Cl. Uh-These grants were made because in the judgment of Congress WHITE v. UNITED STATES. 547 191 U. S. Argument for Appellant. justice to soldiers of the Civil War demanded it, although its cost was millions. It is for Congress to decide what grants shall be made from the public treasury, and the responsibility rests with Congress and not with the courts. In United States v. Realty Co., 163 U. S. 441, a prospective sugar bounty law was directly held unconstitutional; in United States ex rel. Miles Company v. Carlisle, 5 D. C. App. 138, the same question was raised and seriously considered but not decided in Field v. Clark, 143 U. S. 695, as well as in United States v. Realty Co. itself, in which case it was held that the retrospective bounty was valid, although a gratuity, because it was for the payment of accrued moral obligations of the United States. A proviso carves special exceptions only out of the enacting clause. United States n. Dickson, 15 Pet. 165. As to other provisos, see Georgia Banking Co. v. Smith, 128 U. S. 174; Hadden v. Collector, 5 Wall. 110; act of July 2,1864, § 3,13 Stat, at L. 351; United States v. Ewing, 140 U. S.- 142. The decision of this case rests upon the plain meaning of the words under discussion. The fundamental error of the Court of Claims is that after seeing the result of this meaning, it resorted to considerations outside the words used to modify this natural meaning. Appellants insist: That all exterior presumptions are inadmissible, the language of the act being plain. That the presumption against retroactive legislation does not apply to laws not affecting vested rights. That there can be no presumption against a grant of back pay to officers or men in the military service. That the date in the opening clause cannot be brought into the clause under discussion because: This is the kind of proviso described in Georgia Banking Co. v. Smith, 128 U. S. 181, a piece of independent legislation; this clause relates to a different class of persons; to credit and not to pay; it already contains a date fixing the time of its predicate verb. The preceding and subsequent clauses of the same pro 548 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. viso not being interpreted as requiring this date, the date cannot be capriciously selected for this clause. That the clause can be read harmoniously with the act of March 3, 1883, only when read like that act, retrospectively. Mr. Assistant Attorney General Pradt for the United States. Mr. Special Attorney John Q. Thompson was on the brief. Mr. Justice Day delivered the opinion of the court. This is an appeal from the judgment of the Court of Claims dismissing the petition of the claimant. Upon hearing, that court made the following findings of fact, 37 C. Clms. 365: “I. The claimant, Ulysses S. G. White, was on the 9th day of January, in the year 1877, appointed a civil engineer in the Navy from civil life. He remained such civil engineer and was such at the time of the passage of the Navy Personnel Act of March 3, 1899. “II. The claimant, by reason of service in the Army, amounting to six years, seven months and twenty-one days, previous to his entry into the Navy, reached the maximum pay of his grade, $3500, May 19, 1885, under Revised Statutes, sections 1478, 1556. Thus the amount of pay received by him between the 9th of January, 1877, and the 19th of May, 1885, was as follows: Three years and 130 days, at $2700 per annum... $ 9061 64 Five years, at $3000 per annum............... 15,000 00 Total..................................... $2^06114 “If he were, upon the date of his appointment, credited for computing his pay with five years’ service, and entitled to be paid from that date, he would receive pay at the following rates: Three years and 130 days, at $3000 per annum... $10,068 49 Five years, at $3500 per annum............... 17,500 00 Total:.................................. $27^68^9 or $3506.85 more than he has previously received.” The claim arises under the act of March 3, 1899, commonly WHITE v. UNITED STATES. 549 191 U. S. Opinion of the Court. known as the Navy Personnel Act. The act is entitled “Chapter 413. An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States.” 30 Stat. 1004. Section thirteen of the act provides: “That, after June thirtieth, eighteen hundred and ninety-nine, commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army: Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty; but this provision shall not apply to warrant officers commissioned under section twelve of this Act: Provided further, That when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places: Provided further, That naval chaplains, who do not possess relative rank, shall have the rank of lieutenant in the Navy; and that all officers, including warrant officers, who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited, for computing their pay, with five years’ service. And all provisions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed: And provided further, That no provision of this Act shall operate to reduce the present pay of any commissioned officer now in the Navy; and in any case in which the pay of such an officer would otherwise be reduced he shall continue to receive pay according to existing law: And provided further, That nothing in this Act shall operate to increase or reduce the pay of any officer now on the retired list of the Navy.” The part of the statute particularly under consideration in 550 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. this case, and upon the interpretation of which the right of the claimant depends, is contained in the third paragraph: “And that all officers, who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited, for computing their pay, with five years’ service.” It is the contention of the claimant that he comes within the terms of this proviso, and, as an officer appointed to the Navy from civil life, is entitled, as of the date of his appointment, to be credited with five years’ service, having been appointed January 1, 1887, and by previous service in the Army entitled, under another statute, 22 Stat. 472, c. 97, to a credit of six years, seven months and twenty-one days, reaching the maximum pay of $3500 on May 19, 1885. The reading of the statute is not altogether clear, and we are to arrive at the meaning of Congress by such aids as may be legitimately resorted to in order to determine the effect and purpose of the lawmaking power in the language used. The statute is part of a voluminous act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States. In the title, the language used looks to the future; it contemplates a readjustment of rank and pay. It is true that the title of the act may not control the plain language of the enacting clauses, but nevertheless we may look to the declared scope and purpose of the act as evidenced by its title whenever it becomes necessary, in view of the use of language, incapable by itself of exact construction. Holy Trinity Church v. United States, 143 U. S. 457, 465. Chief Justice Marshall, in United States v. Fisher, 2 Cranch, 358, 386, said: “Where the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case, the title claims a degree of notice, and will have its due share of consideration.” Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 563; Holy Trinity Church v. United States, 143 U. S. 457, 462. WHITE v. UNITED STATES. 551 191 U. S. Opinion of the Court. The part of the statute relied upon by the claimant is incorporated by means of a proviso. Through the diligence of the learned counsel representing the claimant, it is exhibited in the appendix to their brief, that in this statute as originally reported, section 16 of the Navy Personnel Act (H. R. 10,403, 53d Congress, third session,) there was no such proviso. As reported in the Senate, January 1, 1899, the first proviso was added. The other provisos were added as the bill was reported to the Senate, February 2, 1899, and included the one now under consideration; and it is argued that not only does this proviso contain independent matter, but that it was introduced into the bill and intended to be enacted as such. It is undoubtedly true that in Congressional legislation provisos have been included in statutes which are really independent pieces of legislation, but this is a misuse of the usual purpose and effect of a proviso, which is to make exception from the enacting clause, to restrain generality and to prevent misinterpretation. Minis v. United States, 15 Pet. 423. If possible, the act is to be given such construction as will permit both the enacting clause and the proviso to stand and be construed together with a view to carry into effect the whole purpose of the law. 1 Kent, 463. The purview of the act and the words of the proviso must be reconciled if may be, and the operation of the proviso may be limited -by the scope of the enacting clause. The object of interpretation being to ascertain the purpose of the lawmakers as expressed in the terms used in the law, we have a right to look to other laws upon the same subject matter, and to consider the purpose intended to be carried into effect by the operation of the new law considered with the old and as a part of a general provision. It is true that if the language used is free from ambiguity it is the best evidence of the thing intended, and it is the duty of the courts to find, if possible, within the four corners of the act, and from the language used, the scope and meaning of the law. Lake County v. Rollins, 130 U. S. 662, 671. It is equally true that it is the business of courts to decide what the law is, 552 OCTOBER TERM, 1903. Opinion of the Court. 191 U. S. and not by consideration or surmises as to the policy of the Government have the effect to adjudge that to be law which has not been so enacted by the legislature. Dewey v. United States, 178 U. S. 510, 521. But, after all, the main purpose of interpretation is to ascertain and carry into effect the object and purpose of the legislature in making the given law as expressed in the language used. Where it is claimed that a law is to have a retrospective operation, such must be clearly the intention, evidenced in the law and its purposes, or the court will presume that the lawmaking power is acting for the future only and not for the past; that it is enacting a rule of conduct which shall control the future rights and dealings of men, rather than review and affix new obligations to that which has been done in the past. While it is undoubtedly within the power of Congress to provide for bounties or gratuities to those in the naval or military service of the United States, we should hardly look for such legislation in an act having the declared purpose and scope of the one now under consideration. Retrospective legislation is not favored. Cooley on Constitutional Limitations, 529. Retrospective laws which have been sustained in the courts have ordinarily had the effect to remedy irregularities in legal procedure, assessment of property for taxation, and the like. Cooley on Const. Lim. 530, 531. But it is urged that the plain meaning of this statute includes officers in the situation of the claimant and requires a readjustment of their pay for years past. The language used is “ all officers that have been or may be appointed to the Navy from civil life,” and it is claimed that unless this construction is given to the act, violence is done to its terms, and to the rights intended to be conferred upon the claimant and other officers similarly situated. The proviso directs credit on the date of appointment. It is argued that this means as of the date of appointment. If this be true, it is in conflict with the first clause of the act, which makes increased pay begin on June thirtieth. The effect of this construction of the proviso when read with the first clause of the act is thus perti- WHITE v. UNITED STATES. 553 191 U. S. Opinion of the Court. nently pointed out in the majority opinion of the Court of Claims : “The subject matter of the proviso in question pertains to the rank of chaplains and to the basis for computing the pay of ‘ all officers, including warrant officers, who have been or may be appointed to the Navy from civil life;’ and the purview or body of the section refers to the pay of ‘ commissioned officers of the line of the Navy and of the Medical and Pay Corps,’ many of whom—nearly all from the Medical Corps—were appointed from civil life, while the chaplains, the majority of the professors of mathematics, nearly all the civil engineers, and other officers were appointed from civil life. “So that the language of the proviso, 1 all officers . . . who have been or may be appointed to the Navy from civil life,’ clearly includes those officers mentioned in the body of the section who were appointed from civil life. “If, therefore, the claimant’s contention should prevail, those officers so appointed whose pay was increased after June 30, 1899, by assimilation to Army pay, would, in addition thereto, be entitled to receive from the date of appointment a gratuity of five years’ additional pay, thereby fixing in the same section two distinct dates for the beginning of the pay of the same officers.” But quite as important, in our view, is the declared purpose for which the credit is to be given “computing their pay.” Boes it not do violence to this expression of purpose to give the law a retrospective effect? The purpose for which the five years’ service is to be credited cannot be ignored. It is thus that the object of the act is to be accomplished, and it is not declared to be with a view of readjusting the pay of officers within the classes named, or giving to them, as Congress might, a gratuity for past services, but the credit is solely given for the purpose of “computing their pay,” and this is to be read in the light of the purview of the statute wherein its operation is declared to be effective from the beginning of thé coming fiscal year. 554 OCTOBER TERM, 1903. Opinion of the Court. 191 U. 8. But it is said that the declared policy of the act includes not only those to be hereafter appointed, but also those who have been appointed to the Navy from civil life. It will be presumed that Congress, in passing this legislation, had in mind the law already in force regulating the subject, and we find in section 1556, Rev. Stat. 267, that civil engineers in the Navy are to be paid according to the length of their service, with increase of pay through three periods of five years each, and after fifteen years of service they are to receive the maximum amount of pay. If the act under consideration is to be read, as we think it should be, to have reference to the pay of naval officers beginning with the next fiscal year “on and after June thirtieth,” it would increase the pay of those who had not reached the maximum pay by continuous service by giving to such officers, for the purpose of computing their pay thereafter, a credit for the five years’ service or so much thereof as would enable such officer to reach the maximum pay. This construction gives force to the declared purpose of the act to begin its operation at the beginning of the coming fiscal year and benefits those officers named in the proviso who have not already, by continuous service, been advanced in pay to the maximum compensation fixed by law. Congress must be presumed to have had before it in framing this legislation the statute already in force, fixing the pay of naval officers by advancing them every five years through three such periods to maximum pay. It enacted, in the statute under consideration, that the officers named, appointed or to be appointed from civil life, should have such credit on the date of appointment for one purpose—“computing their pay.” In the light of the operation of the act as declared in the first clause to begin on the 30th of June following, we think this was meant, so far as it applied to officers theretofore appointed, and who were not receiving maximum pay, to give them a credit of the term of five years’ advancement toward full pay for the purpose of computing compensation after the beginning of the coming fiscal year. NORTHERN SECURITIES CO. v. UNITED STATES. 555 191 U. S. Opinion of the Court. While the question is not free from difficulty, we cannot escape the conclusion that had Congress intended that this credit should be given not only for the purpose of computing future pay, but with a view to readjusting past compensation, and giving gratuities for years past, it would have declared its purpose in more distinct terms. The construction here given is consistent with the declared purpose of the act; it gives to the law a future, not a retrospective operation, and, in our judgment, carries out the expressed purpose of Congress in passing the law. Judgment of the Court of Claims affirmed. NORTHERN SECURITIES COMPANY v. UNITED STATES. APPEAL FROM THE UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF MINNESOTA. No. 277. Submitted November 16,1903.—Decided November 30,1903. Motion for leave to file brief as amicus curiae denied. Mr. A. A. Hoehling, Jr., for Mr. Charles Fisk Beach, applicant. The Chief Justice: In support of this motion certain letters were presented showing that request was made of counsel for the respective parties for their consent to the application, and that they withheld direct consent, leaving the matter entirely to the court to determine. When the motion was submitted objection to the granting of leave was made by counsel for appellees. Where in a pending case application to file briefs is made by counsel not employed therein, but interested in some other 556 OCTOBER TERM, 1903. 191 U. S. Opinion of the Court. pending case involving similar questions, and consent is given, the court has always exercised great liberality in permitting this to be done. And doubtless it is within our discretion to allow it in any case when justified by the circumstances. Green v. Biddle, 8 Wheat. 1, 17; Florida v. Georgia, 17 How. 478, 491; The Gray Jacket, 5 Wall. 370. It does not appear that applicant is interested in any other case which will be affected by the decision of this case; as the parties are represented by competent cotinsel, the need of assistance cannot be assumed; and consent has not been given. . Leave to file must, therefore, be Denied. OCTOBER TERM, 1903. 557 191 U. S. Opinions Per Curiam, Etc. OPINIONS PER CURIAM, ETC., FROM OCTOBER 12, 1903, TO JANUARY 3, 1904. No. 10. Douglas Company, Appellant, v. A. F. Stone, Late Treasurer, etc. Appeal from the Circuit Court of the United States for the Western District of Virginia. Argued October 13, 1903. Decided October 19, 1903. Per Curiam. Decree affirmed with costs, on the authority of Holt v. Indiana Manufacturing Company, 170 U. S. 68; Fishback v. Western Union Telegraph Company, 161 U. S. 96, and cases cited. Mr. Daniel Trigg and Mr. J. H. Gilmore for appellant. Mr. William A. Anderson for appellee. No. 11. James U. Hughes, Plaintiff in Error, v. R. B. Kepley et al. In error to the Supreme Court of the State of Kansas. Submitted October 13,1903. Decided October 19, 1903. Per Curiam. Dismissed for the want of jurisdiction, on the authority of Turner v. Richardson, 180 U. S. 87; Erie Railroad Company v. Purdy, 185 U. S. 148; Mutual Life Insurance Company v. McGrew, 188 U. S. 291, and cases cited. Mr. T. F. Garver for plaintiff in error. Mr. N. H. Loomis for defendants in error. No. 37. James L. Gates, Plaintiff in Error, v. Samuel P. Parmly et al., Executors, etc. In error to the Circuit Court of Clark County, State of Wisconsin. Argued October 22, 1903. Decided October 26, 1903. Per Curiam. Dismissed for the want of jurisdiction. Knox v. Exchange Bank, 12 Wall. 379; Central Land Company v. Laidley, 159 U. S. 103; New Orleans Water Works Co. v. Louisiana, 185 U. S. 336; California Powder Works v. Davis, 151 U. S. 389; Louisville and Nashville Railroad Company v. Louisville, 166 U. S. 709; Morley v. Lake Shore &c. Railway Company, 146 U. S. 162; Bacon 558 OCTOBER TERM, 1903. Opinions Per Curiam, Etc. 191 U. 8. v. Texas, 163 U. S. 207. Mr. Rublee A. Cole for plaintiff in error. Mr. A. B. Browne and Mr. Alexander Britton for defendants in error. No. —. Original. Ex parte. In the Matter of City of Palatka, Petitioner. November 2,1903. Motion for leave to file petition for writ of certiorari denied. Mr. H. Bisbee and Mr. George C, Bedell for petitioner in support of motion. Mr. Charles T. Cates, Jr., Mr. Henry Strunz and Mr. R. E. L, Mountcastle opposing. No. 226. The New York, New Haven and Hartford Railroad Company, Plaintiff in Error, v. Benjamin Weisberg. In error to the Circuit Court of the United States for the District of Rhode Island. Motion to dismiss submitted October 26, 1903. Decided November 2, 1903. Per Curiam. Dismissed for the want of jurisdiction. Maynard v. Hecht, 151 U. S. 324; The Bayonne, 159 U. S. 687, 692; Chappell v. United States, 160 U. S. 499, 507. Mr. David S. Baker for plaintiff in error. Mr. Donald G. Perkins for defendant in error. No. 52. Woey Ho, Appellant, v. United States. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. Argued November 3, 1903. Decided November 9, 1903. Per Curiam. Dismissed for the want of jurisdiction. Lau Ow Bew v. United States, 144 U. S. 47, 58; Cross v. Burke, 146 U. S. 82, 88; In re Lennon, 150 U. S. 393; Perrine v. Slack, 164 U. S. 452; The Paquete Habana, 175 U. S. 677, 683. Mr. Franklin H. Mackey for appellant. The Attorney General and Mr. Assistant Attorney General McReynolds for appellee. No. 55. Clemens Herold et al., Plaintiffs in Error, Joseph Frank et al. In error to the Court of Errors and OCTOBER TERM, 1903. 559 191 U. S. Opinions Per Curiam, Etc. . Appeals of the State of New Jersey. Argued and submitted November 4, 1903. Decided November 9, 1903. Per Curiam. Dismissed for the want of jurisdiction. Oxley Stave Company v. Butler County, 166 U. S. 648; Chapin v. Fye, 179 U. S. 127; Capital City Dairy Company v. Ohio, 183 U. S. 238, 248; Mutual Life Insurance Company v. McGrew, 188 U. S. 291; McKane v. Durston, 153 U. S. 684. Mr. James G. Blauvelt for plaintiffs in error. Mr. John W. Harding for defendants in error. No. 72. Mollie S. Battle, Plaintiff in Error, v. Robert G. Atkinson. In error to the Circuit Court of the United States for the Eastern District of Arkansas. Argued for plaintiff in error November 11, 1903. Decided November 16, 1903. Per Curiam. Decree affirmed with costs. Willis v. Eastern Trust and Banking Company, 167 U. S. 76; Harris v. Barber, 129 U. S. 366; McClung v. Penny, 189 U. S. 143. Mr. John M. Taylor for plaintiff in error. No appearance for defendant in error. No.—. Original. Ex parte. In the Matter of The Johnstown Mining Company, Petitioner. December 7, 1903. Motion for leave to file petition for a writ of certiorari denied. Mr. Robert B. Smith, Mr. Frederick W. Whitridge, Mr. Willard Parker Butler, Mr. Edwin T. Rice and Mr. Sanford Robinson for petitioner in support of motion. Mr. James M. Beck and Mr. John A. Garver opposing. No. 14. Czarnikow, MacDougall & Co. (Limited), Plaintiff in Error, v. George R. Bidwell, Collector, etc. In error to the Circuit Court of the United States for the Southern District of New York. Submitted December 4, 1903. Decided December 14, 1903. Per Curiam. Judgment affirmed with costs, on the authority of Downes v. Bidwell, 182 U. S. 244, 287. (The Chief Justice, Mr, Justice Harlan, Mr. Justice 560 OCTOBER TERM, 1903. Opinions Per Curiam, Etc. 191 U. S. Brewer and Mr. Justice Peckham dissent.) Mr. Frederic R. Coudert, Jr., Mr. Paul Fuller and Mr. Henry M. Ward for plaintiff in error. The Attorney General and Mr. Solicitor General Hoyt for defendant in error. No. 331. Warner, Barnes & Co. (Limited), Plaintiff in Error, v. Nevada N. Stranahan. In error to the Circuit Court of the United States for the Southern District of New York. Argued December 4, 1903. Decided December 14, 1903. Per Curiam. Judgment affirmed with costs, on the authority of Downes v. Bidwell, 182 U. S. 244, 287. (The Chief Justice, Mr. Justice Harlan, Mr. Justice Brewer and Mr. Justice Peckham dissent.) Mr. Frederic R. Coudert, Jr., Mr. Paul Fuller and Mr. Henry M. Ward for plaintiff in error. The Attorney General and Mr. Solicitor General Hoyt for defendant in error. No. 97. The Town of Weston, Appellant, v. Sallie E. Tierney. Appeal from the Circuit Court of the United States for the Northern District of West Virginia. Argued for appellant December 16, 1903. Decided December 21, 1903. Per Curiam. Decree reversed with costs, and cause remanded with directions to dismiss the bill for want of jurisdiction. Town of Weston v. Tierney, 184 U. S. 695; Holt v. Indiana Manufacturing Company, 176 U. S. 68, 73, and cases cited. Mr. E.A. Brannon for appellant. No counsel appeared for appellee. No. 257. S. A. Weltmer et al., Plaintiffs in Error, v. C. M. Bishop. In error to the Supreme Court of the State of Missouri. Motions to dismiss or affirm submitted December 14, 1903. Decided December 21, 1903. Per Curiam. Dismissed for the want of jurisdiction on the authority of OCTOBER TERM, 1903. 561 191 U. S. Cases Disposed of Without Consideration by the Court. Egan v. Hart, 165 U. S. 188; New Orleans Water Works Company v. Louisiana, 185 U. S. 336; Spies v. Illinois, 123 U. S. 131; Miller v. Texas, 153 U. S. 535; Missouri Pacific Ry. Company v. Fitzgerald, 160 U. S. 556. Mr. William C. Scarritt in support of motions. Mr. James H. Harkless opposing. CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM OCTOBER 12, 1903, TO JANUARY 3, 1904. No. 439. Jeung Juen Ho, Plaintiff in Error, v. United States. In error to the United States Circuit Court of Appeals for the Ninth Circuit. October 13, 1903. Docketed and dismissed, on motion of Mr. Solicitor General Hoyt for the defendant in error. No counsel opposing. No. 1. T. Walter Beam et al., Appellants, v. Gustav H. Schwab. On certificate from the United States Circuit Court of Appeals for the Eighth Circuit. October 13, 1903. Dismissed. Mr. Edmund F. Richardson for appellants. Mr. Henry T. Rogers and Mr. L. M. Cuthbert for appellee. No. 131. William Van Pelt, Plaintiff in Error, v. People of the State of Michigan. In error to the Supreme Court of the State of Michigan. October 13, 1903. Dismissed, per stipulation. Mr. Henry M. Duffield for plaintiff in error. Mr. Horace M. Oren for defendants in error. No. 3. Freida Schradsky, Plaintiff in Error, v. Board of County Commissioners of the County of Lake. In error to the Circuit Court of the United States for the District vol. cxci—36 562 OCTOBER TERM, 1903. Cases Disposed of Without Consideration by the Court. 191 U. S. of Colorado. October 13, 1903. Dismissed with costs, on authority of counsel for plaintiff in error. Mr. H. B. Johnson for plaintiff in error. Mr. C. S. Thomas, Mr. W. H. Bryant and Mr. H. H. Lee for defendant in error. No. 15. Veeder B. Paine, Appellant, v. John Foster et al., Trustees, etc. Appeal from the Supreme Court of the Territory of Oklahoma. October 13, 1903. Dismissed with costs, pursuant to the tenth rule. Mr. James R. Keaton and Mr. 8. D. Luckett for appellants. No appearance for appellees. No. 22. J. F. Hardeman et al., Plaintiffs in Error, v. Katie Turner et al. In error to the United States Circuit Court of Appeals for the Eighth Circuit. October 14, 1903. Dismissed with costs, pursuant to the nineteenth rule. Mr. W. H. Ledbetter and Mr. 8. T. Bledsoe for plaintiffs in error. No appearance for defendants in error. No. 29. Arsene L. Arpin et al., Appellants, v. Ramon Valdez y Cobian et al. Appeal from the District Court of the United States for the District of Porto Rico. October 19, 1903. Dismissed with costs, on motion of counsel for the appellants. Mr. N. T. M. Melliss for appellants. Mr. A. A. Hoehling, Jr., for appellees. No. 40. United States, Appellant, v. Edward G. Pierson. Appeal from the Court of Claims. October 26, 1903. Dismissed, on motion of Mr. Solicitor General Hoyt for the appellant. The Attorney General for appellant. Mr. George A. King and Mr. William B. King for appellee. No. 47. H. L. Kahn, Trustee, Appellant, v. Cone Export OCTOBER TERM, 1903. 563 191 U. S. Cases Disposed of Without Consideration, by the Court. and Commission Company. Appeal from the United States Circuit Court of Appeals for the Fifth Circuit. October 26, 1903. Dismissed with costs per stipulation. Mr. W. H. Robeson and Mr. Charles D. Hill for appellant. Mr. Alex. C. King for appellee. No. 114. Yee Ngoy, Appellant, v. United States. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. November 2,1903. Dismissed per stipulation, on motion of Mr. Solicitor General Hoyt for the appellee. Mr: Lyman I. Mowry for appellant. The Attorney General for appellee. No. 78. Texas and Pacific Railway Company, Plaintiff in Error, v. William L. Smith. In error to the United States Circuit Court of Appeals for the Fifth Circuit. November 9, 1903. Dismissed with costs, on motion of Mr. D. D. Duncan for the plaintiff in error. Mr. John F. Dillon, Mr. Winslow S. Pierce and Mr. David D. Duncan for plaintiff in error. No appearance for defendant in error. No. 99. Missouri Pacific Railway Company, Plaintiff in Error, v. Robert Eccles et al. In error to the Supreme Court of the State of Missouri. November 9,1903. Dismissed with costs, on motion of Mr. D. D. Duncan in behalf of counsel for the plaintiff in error. Mr. Martin L. Clardy for plaintiff in error. No appearance for defendants in error. No. 69. Texas and Pacific Railway Company, Plaintiff in Error, v. Mrs. Frank S. Smith et al. In error to the United States Circuit Court of Appeals for the Fifth Circuit. November 9, 1903. Dismissed with costs, pursuant to the tenth rule. Mr. John F. Dillon, Mr. Winslow S. Pierce and 564 OCTOBER TERM, 1903. Cases Disposed of Without Consideration by the Court. 191 U. S. Mr. David D. Duncan from plaintiff in error. Mr. F. E. Albright for defendants in error. No. 70. Armour Packing Company et al., Appellants, v. B. T. Adams et al. Appeal from the United States Circuit Court of Appeals for the Fifth Circuit. November 9, 1903. Dismissed with costs, pursuant to the tenth rule. Mr. Marion W. Harris for appellants. Mr. Olin J. Wimberly for appellees. No. 82. John M. Clapp, Appellant, v. Henry B. F. Mac-FARLAND ET AL., COMMISSIONERS OF THE DISTRICT OF COLUMBIA. Appeal from the Court of Appeals of the District of Columbia. November 11, 1903. Dismissed with costs, pursuant to the tenth rule. Mr. M. J. Colbert for appellants. No appearance for appellees. No. 167. James D. Dewell et al., etc., Plaintiffs in Error, v. John W. Mix. In error to the Circuit Court of the United States for the District of Connecticut. November 30, 1903. Dismissed with costs, per stipulation, on motion of Mr. Solicitor General Hoyt for the defendant in error. Mr. James D. Dewell, Jr., for plaintiffs in error. The Attorney General for defendant in error. No. 495. Ensenada Estate, Plaintiff in Error, v. Francis H. Dexter. In error to the District Court of the United States for the District of Porto Rico. November 30, 1903. Docketed and dismissed with costs, on motion of Mr. Frederic D. McKenney for the defendant in error. No counsel opposing. No. 123. Ezra Eshelby et al., Plaintiffs in Error, v. William Watts, Judge, etc.,et al. In error to the Supreme OCTOBER TERM, 1903. 565 191 U. S. Cases Disposed of Without Consideration by the Court. Court of the State of Minnesota. November 30, 1903. Dismissed with costs, on authority of counsel for plaintiffs in error. Mr. Frank B. Kellogg for plaintiffs in error. Mr. H. Steenerson for defendants in error. No. 113. Jeung Lin Heung, Appellant, v. United States. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. December 3,1903. Dismissed, per stipulation, on motion of Mr. Solicitor General Hoyt for the appellee. Mr. Lyman I. Mowry for appellant. The Attorney General for appellee. No. 129. Trustees of Macalester College, Plaintiffs in Error, v. State of Minnesota. In error to the Supreme Court of the State of Minnesota. December 7, 1903. Dismissed per stipulation. Mr. John E. Stryker for plaintiffs in error. Mr. James E. Markham for defendant in error. No. 95. Lindley E. Sinclair, Plaintiff in Error, v. District of Columbia. In error to the Court of Appeals of the District of Columbia. December 14, 1903. Dismissed with costs, on motion of Mr. C. C. Cole for the plaintiff in error. Mr. C. C. Cole and Mr. J. J. Darlington for plaintiff in error. Mr. A. B. Duvall and Mr. Edward H. Thomas for defendant in error. No. 116. Hawaiian Tramways Company (Limited), Plaintiff in Error, v. Honolulu Rapid Transit and Land Company (Limited). In error to the Supreme Court of the Territory of Hawaii. December 14, 1903. Dismissed with costs, on motion of Mr. J. J. Darlington for the plaintiff in error. Mr. J. J. Darlington and Mr. R. D. Silliman for plaintiff in 566 OCTOBER TERM, 1903. Cases Disposed of Without Consideration by the Court. 191 U. S. error. Mr. A. B. Browne, Mr. Alexander Britton, Mr. T. M. Patterson and Mr. E. F. Richardson for defendant in error. No. 105. J. D. Spreckels, Appellant, v. George W. Wittman, Chief of Police, etc. Appeal from the Circuit Court of the United States for the Northern District of California. December 14, 1903. Dismissed with costs, on authority of counsel for appellant. Mr. J. C. Campbell, Mr. W. H. Metson and Mr. E. F. Preston for appellant. Mr. Henry C. McPike for appellee. No. 106. W. S. Leake, Appellant, v. George W. Wittman, Chief of Police, etc. Appeal from the Circuit Court of the United States for the Northern District of California. December 14, 1903. Dismissed with costs, on authority of counsel for appellant. Mr. J. C. Campbell, Mr. W. H. Metson and Mr. E. F. Preston for appellant. Mr. Henry C. McPike for appellee. No. 107. Donald McPherson, Appellant, v. Henry B.F. Macfarland et al., Commissioners of the District of Columbia. Appeal from the Court of Appeals of the District of Columbia. December 14, 1903. Dismissed with costs, pursuant to the tenth rule. Mr. Chapin Brown for appellant. No appearance for appellees. No. 111. Peter J. Heinz, Substituted for Anna M. Heinz, Deceased, Appellant, v. Henry B. F. Macfarland et al., Commissioners of the District of Columbia. Appeal from the Court of Appeals of the District of Columbia. December 15, 1903. Dismissed with costs, pursuant to the tenth rule. Mr. Chapin Brown for appellant. No appearance for appellees. 567 191 U. S. OCTOBER TERM, 1903. Decisions on Petitions for Writs of Certiorari. Decision^ on Petitions for Writs of Certiorari, from October 12, 1903, to January 3, 1904. No. 271. Exchange Bank of Macon, Petitioner, v. E. L. Clayton et al., Trustees. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Olin J. Wimberly and Mr. A. 0. Bacon for petitioner. Mr. Frederick C. Foster for respondents. No. 291. J. Overton Dickinson et al., Petitioners, v. Consolidated Traction Company et al. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. M. I. Southard, Mr. Joseph A. Duffy and Mr. Charles J. Roe for petitioners. Mr. John G. Johnson and Mr. Joseph Coult for respondents. No. 297. Gavin Reid et al., Petitioners, v. Keene Five Cent Savings Bank et al. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. T. F. Garver for petitioners. Mr. W. F. Guthrie for respondents. No. 300. H. F. Whitcomb et al., Receivers, etc., Petitioners, v. Ohio Coal Company. October 19,1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. William F. Vilas for petitioners. Mr. P. J. McLaughlin for respondent. No. 302. Henry Raeder et al., Petitioners, v. John W. Kauffman. October 19, 1903. Petition for a writ of cer- 568 OCTOBER TERM, 1903. Decisions on Petitions for Writs of Certiorari. 191 U. S. tiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. William E. Garvin for petitioners. Mr. James E. McKeighan, Mr. Shepard Barclay and Mr. M. F. Watts for respondent. No. 304. Alfred N. Treece et al., Petitioners, v. American Association et al. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Jerome Templeton for petitioners. Mr. Jesse L. Rogers for respondents. No. 363. Supreme Council American Legion of Honor, Petitioner, v. Joseph C. Black, Administrator, etc.; and No. 364. Supreme Council American Legion of Honor, Petitioner, v. William H. Henderson. October 19, 1903. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Frank P. Prichard and Mr. Murdock Kendrick for petitioner. Mr. George Henderson and Mr. Charles H. Sayre for respondents. No. 391. John W. Warren, Petitioner, v. Central Trust Company of New York et al. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. Mr. T. J. Walsh for petitioner. Mr. Adrian H. Joline and Mr. Arthur H. Van Brunt for respondents. Nos. 393 and 394. Wilcox & Gibbs Sewing Machine Company, Petitioner, v. Thomas B. Sherborne, Jr., et al. October 19, 1903. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Hubert Howson, Mr. Preston K. Erdman and Mr. 569 191 U. S. OCTOBER TERM, 1908. Decisions on Petitions for Writs of Certiorari. George Tucker Bispham for petitioner. Mr. John G. Johnson and Mr. Frank P. Prichard for respondents. No. 402. Berwind-White Coal Mining Company, Petitioner, v. John C. Martin. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Frank P. Prichard for petitioner. Mr. Rudolph M. Schick for respondents. No. 403. Alexis M. Salliotte, Petitioner, v. King Bridge Company. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. George William Moore and Mr. George Whitney Moore for petitioner. Mr. John C. Donnelly and Mr. Michael Brennan for respondent. No. 404. George Whitney Moore et al., Petitioners, v. A. B. Hammond et al. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. Mr. George William Moore and Mr. George Whitney Moore for petitioners. Mr. John H. Mitchell for respondents. No. 411. Mutual Reserve Life Insurance Company, Petitioner, v. Thomas Ferrenbach, Executor, etc. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. James C. Jones for petitioner. No appearance for respondents. No. 416. Julius George Hocke et al., Petitioners, v. New York Central and Hudson River Railroad Company. October 19,1903. Petition for a writ of certiorari to the United 570 OCTOBER TERM, 1903. Decisions on Petitions for Writs of Certiorari. 191 U. S. States Circuit Court of Appeals for the Second Circuit denied. Mr. Arthur von Briesen for petitioners. Mr. Robert J. Fisher for respondent. No. 420. United States ex rel. Regina Music Box Company, Petitioner, v. Frederick I. Allen, Commissioner of Patents. October 19, 1903. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Antonio Knauth for petitioner. The Attorney General and Mr. Solicitor General Hoyt for respondent. No. 425. Caroline G. Roth, Executrix, etc., Petitioner, v. Mutual Reserve Life Insurance Company. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Frederick H. Bacon and Mr. J. E. McKeighan for petitioner. Mr. James C. Jones for respondent. No. 430. Reading Company, Petitioner, v. Walter D. Munson. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the First Circuit denied. Mr. Robert M. Morse, Mr. Henry M. Rogers and Mr. William M. Richardson for petitioner. Mr. Eugene P-Carver and Mr. E. E. Blodgett for respondent. No. 436. Jane Bryson, Administratrix, etc., et al., Petitioners, v. Ocean Steamship Company. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Henry Galbraith Ward and Mr. J. J. Macklin for petitioners. Mr. Julien T. Davies for respondent. No. 437. James Arthur, Petitioner, v. Baron de Hirsch OCTOBER TERM, 1903. 571 191 U. S. Decisions on Petitions for Writs of Certiorari. Fund. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Henry Galbraith Ward for petitioner. Mr. Julius J. Frank and Mr. George W. Wickersham for respondent. No. 417. Harry Donovan et al., Petitioners, v. Pennsylvania Company. October 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit granted. Mr. James R. Ward for petitioners. Mr. Edgar A. Bancroft, Mr. F. J. Loesch and Mr. G. F. Loesch for respondent. No. 426. P. L. Flanigan, Petitioner, v. County of Sierra; and No. 427. D. E. Wheeler et al., Petitioners, v. County of Plumas. October 19, 1903. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit granted. Mr. J. C. Campbell and Mr. W. H. Metson for petitioners. No appearance for respondent in No. 426. Mr. U. S. Webb and Mr. C. N. Post for respondent in No. 427. No. 398. E. W. H. Lake, Petitioner, v. S. H. Rush, Trustee, etc. October 26, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. Mr. George Turner and Mr. W. T. Stoll for petitioner. Mr. Adolph G. Wolf for respondent. No. 413. Patrick Clark et al., Petitioners, v. Buffalo Hump Mining Company et al. October 26, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. Mr. W. T. Stoll for petitioners. Mr. W. B. Heyburn for respondents. No. 431. William Chisholm et al., Petitioners, v. Mary OCTOBER TERM, 1903. Decisions on Petitions for Writs of Certiorari. 191 U. S. H. Hall et al., Executors, etc. October 26,1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Harvey D. Goulder, Mr. S. H. Holding and Mr. Frank S. Masten for petitioners. Mr. T. E. Tarsney for respondents. No. 432. Boston Tow Boat Company, Petitioner, v. Chase Machine Company. October 26, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Harvey D. Goulder for petitioner. Mr. T. W. Bakewell and Mr. Albert E. Lynch for respondent. No. 442. Southern Electric Railway Company, Petitioner, v. Cora Hageman. October 26, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. W. F. Boyle, Mr. F. W. Lehmann and Mr. Walter H. Saunders for petitioner. Mr. Seneca N. Taylor for respondent. No. 443. Oceanic Steam Navigation Company, Limited, etc., Petitioner, v. John W. Aitkin et al., etc. October 26, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit granted. Mr. Everett P. Wheeler for petitioner. Mr. Wilhelmus Mynderse and Mr. Edmund L. Baylies for respondent. No. 386. JEtna Life Insurance Company, Petitioner, v. Board of County Commissioners of Hamilton County, Kansas. November 16,1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Oliver J. Bailey and Mr. Frank P. Lindsay for petitioner. Mr. George Getty for respondent. OCTOBER TERM, 1903. 573 191 U. S. Decisions on Petitions for Writs of Certiorari. No. 423. National Surety Company of Kansas City, Missouri, Petitioner, v. United States. November 16, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Heber J. May and Mr. Robert T. Hough for petitioner. The Attorney General and Mr. Solicitor General Hoyt for respondent. No. 429. James Haggart et al., Petitioners, v.Lucetta B. Boynton et al. November 16, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Edward Mayes for petitioners. Mr. G. B. Rose for respondents. No. 452. Henry W. Watson, Owner, etc., Petitioner,??. St. Clair Steamship Company, Owner, etc., et al. November 16, 1903. Petitions for writ and cross writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. F. H. Canfield and Mr. William J. Gray for petitioner. Mr. John C. Shaw, Mr. Harvey D. Goulder and Mr.-Harrington Putnam for respondents. No. 449. Florida McGuire et al., Petitioners, v. William A. Blount et al. November 16, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit granted. Mr. Hilary A. Herbert and Mr. Benjamin Micou for petitioners. Mr. W. A. Blount for respondent. No. 445. Howe Scale Company of 1886 et al., Petitioners, v. Wyckoff, Seamans & Benedict. November 30, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit granted. Mr. Austen G. Fox, Mr. James H. Peirce, Mr. George P. Fisher, Jr., 574 OCTOBER TERM, 1903. Decisions on Petitions for Writs of Certiorari. 191 U. S. and Mr. William Henry Dennis for petitioners. Mr. Edmund Wetmore and Mr. Henry D. Donnelly for respondent. No. 479. First National Bank of Chicago et al., Petitioners, v. Chicago Title and Trust Company, Trustee, etc. November 30, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit granted. Mr. Wallace Heckman and Mr. Henry S. Robbins for petitioners. Mr. Joseph E. Paden and Mr. Newton Wyeth for respondent. No. 434. Vacuum Oil Company, Petitioner, v. Climax Refining Company. December 7, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Howard L. Osgood for petitioner. Mr. Frederick L. Taft for respondent. No. 492. William H. Slaughter et al., Petitioners, v. La Compagnie Française Des Cables Télégraphiques. December 7, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. C. Walter Artz for petitioner. Mr. Edward K. Jones for respondent. No. 482. Winfield S. Gregg, Petitioner, v. Metropolitan Trust Company et al. December 7, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit granted. Mr. Harlan Cleveland for petitioner. Mr. Herbert Parsons for respondent. No. 498. Walter N. Dimmick, Petitioner, v. United States. December 14,1903. Petition for a writ of certiorari OCTOBER TERM, 1903. 575 191 U. S. Decisions on Petitions for Writs of Certiorari. to the United States Circuit Court of Appeals for the Ninth Circuit denied. Mr. George D. Collins for the petitioner. No. 500. Eugene Hughes et al., Petitioners, v. A. Harrison, Master, etc. December 14, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit, denied. Mr. Anthony Higgins and Mr. Henry Galbraith Ward for petitioners. Mr. John F. Lewis for respondents. No. 502. American Bonding and Trust Company, Petitioner, v. Baltimore and Ohio Southwestern Railroad Company. December 14, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Walter L. Granger and Mr. Wm. L. Marbury for petitioner. Mr. Judson Harmon for respondent. ________ No. 477. Jacob E. Jacobsen et al., Petitioners, v. ~Dal-les, Portland and Astoria Navigation Company. December 21, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. Mr. T. J. Geisler and Mr. W. W. Cotton for petitioners. Mr. Franklin P.Mays and Mr. Rufus Mallory for respondent. No. 494. J. D. Nordlinger, Petitioner, v. United States. December 21, 1903. Petition for a writ of certiorari.to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Wheeler H. Peckham and Mr. Albert Comstock for petitioner. The Attorney General and Mr. Solicitor General Hoyt for respondent. No. 505. The City of Wooster, Petitioner, v. The Eastern Trust and Banking Company. Deceniber 21, 1903. 576 OCTOBER TERM, 1903. Cases Dismissed in Vacation. 191 U. S. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. 0. W. Aldrich and Mr. Alfred J. Thomas for petitioner. Mr. William B. Sanders for respondent. No. 506. Isaac N. Kinney et al., Petitioners, v. The Eastern Trust and Banking Company. December 21,1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. 0. W. Aldrich and Mr. Alfred J. Thomas for petitioners. Mr. William B. Sanders for respondent. No.* 509. John Brislin et al., Petitioners, v. Carnegie Steel Company (Limited). December 21, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. James I. Kay, Mr. James N. Cook and Mr. James S. Young for petitioners. Mr. John R. Bennett for respondent. No. 510. Frank A. Pouppirt, Petitioner, v. Elder Dempster Shipping (Limited). December 21, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. Floyd Hughes for petitioner. Mr. Robert M. Hughes for respondent. CASES DISMISSED IN VACATION. No. 206. Ida McClung, Plaintiff in-Error, v. William A. Penny. In error to the Supreme Court of the Territory of Oklahoma. June 27, 1903. Dismissed pursuant to the 28th rule. Mr. S. H. Harris for plaintiff in error. Mr. A. G. G. Bierer for defendant in error. 577 191 U. S. OCTOBER TERM, 1903. Cases Dismissed in Vacation. No. 359. Western Electric Supply Company, Plaintiff in Error, v. Abbeville Electric Light and Power Company. In error to the Supreme Court of the State of South Carolina. July 15, 1903. Docketed and dismissed on motion of Mr. W. N. Gray don for defendant in error. No counsel opposing. No. 130. Union Pacific Railroad Company, Plaintiff in Error, v. The Colorado Postal Telegraph-Cable Company. In error to the Supreme Court of the State of Colorado. August 31, 1903. Dismissed pursuant to the 28th rule. Mr. Winslow S. Pierce, Mr. Willard Teller and Mr. W. R. Kelly for plaintiff in error. Mr. J. R. McIntosh for defendant in error. vol. cxoi—37 INDEX ACTION. See Constitutional Law, 1,12. Foreign States; Equity; Jurisdiction A 7; B; E 1; Evidence, 1; National Banks, 2; Removal of Causes. ACTS OF CONGRESS. Bankruptcy (see Jurisdiction, A 1): Holden, v. Stratton, 115—(see Removal of Causes): Spencer v. Duplan Silk Co., 526. Copyrights, Sec. 4963, Rev. Stat., amended by act of March 3, 1891 (see Statutes, Al): McLoughlin v. Raphael Tuck Co., 267;—29 Stat. 694, ch. 392, amended by act of March 3, 1897 (see Copyrights): McLoughlin v. Raphael Tuck Co., 267. Judiciary Act of March 3, 1891 (see Jurisdiction, A 7): Continental National Rank v. Ruford, 119. Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826 (see Jurisdiction, A 2): Louisville Trust Co. v. Knott, 225. Judiciary Act of March 3, 1891, c. 517, sec. 5 (see Jurisdiction, A 3): Anglo-American Provision Co. v. Davis Co., 376. Judiciary, Sec. 709, U. S. Rev. Stat, (see Jurisdiction, A 6): Pennsylvania R. R. Co. v. Hughes, 477. Judiciary, Sec. 709 Rev. Stat, (see Federal Question, 5): Defiance Water Co. v. Defiance, 184. National Banks, Acts of July 12,1882, and August 13,1888 (see National Banks, 2): Continental National Rank v. Ruford, 119. National Banks, Sec. 5198, Rev. Stat, (see National Banks, 1): Schuyler National Rank v. Gadsden, 451. National Banks, state taxation of (see Taxation, 2): People's National Rank v. Marye, 272. Navy Personnel Act of 1899 (seeStatutes, A3): WTiiie v. United States, 545. Public Lands, Act of March 3, 1887, 24 Stat. 556 (see Statutes, A 2): Gertgens v. O'Connor, 237. Public Lands, enabling city of Denver to purchase (see Ejectment): Wright v. Morgan, 55. Public Lands, enabling railroad to take timber from (see Evidence, 1): United States v. Denver & Rio Grande R. R. Co.’, 84. Shipping, Harter Act (see Maritime Law, 1): The Southwark, 1. Surety Bond, Act of August 13, 1894, 28 Stat. 278 (see Sureties): Guaranty Co. v. Pressed Rrick Co., 416. 579 580 INDEX. Trade-marks, Act of March 3, 1881 (see Jurisdiction, E 2): Warner v. Searle and Hereth Co., 195. ADMIRALTY. See Jurisdiction, D; Maritime Law; Navigable Waters. ADVERSE POSSESSION. Title acquired by—Superiority over patent. Adverse possession gives a title to land together with the remedies which attach to the title as effectually as a conveyance from the owner. Adverse possession under claim of right for the period prescribed by the statute of limitations of the State of Utah after the act granting the land and before a patent has been issued by the United States to the Central Pacific Railroad Company for a part of its land grant within that State, and not within its right of way, will prevail against the patent. Toltec Ranch Co. v. Cook, 532; Toltec Ranch Co. v. Babcock, 542. AGENTS. See Evidence, 1. AMICUS CURIAS. See Practice, 1. APPEAL AND WRIT OF ERROR. See Federal Question; Jurisdiction. BANKS. See National Banks. BANKRUPTCY. See Jurisdiction, A 1; Removal of Causes. BENEFITS. See Constitutional Law, 7. BONDS. Municipal—Omission of stipulation as to remedies conferred by statute affecting rights of holders. A statute authorizing an issue of municipal bonds was amended by an ac increasing the amount authorized and also giving special remedies in addition to, and not in lieu of, those given by the original act, but directing that the bonds “ shall on their face stipulate” that the holdeis are entitled to the remedies contained in the amending as well as in the original act. The bonds were issued after the amending act was INDEX. 581 passed, and contained a statement that they were issued in pursuance of the original act and only for the amount authorized thereby. They did not contain any reference to the amending act or stipulation that the holders were entitled to the remedies given thereby. Held, that in the absence of such stipulation the holders were not entitled to the remedies given only by the amending act. Hubbert, v. Campbellsville Lumber Co., 70. See Sureties ; Writ and Process. BURDEN OF PROOF. See Evidence. CANALS. See Jurisdiction, D. CARRIERS. See Interstate Commerce; Jurisdiction, A 6; D; Maritime Law. CASES FOLLOWED. Hazeltine v. Central National Bank, 183 U. S. 118, followed in Schuyler National Bank v. Gadsden, 451. Huntington v. Worthen, 120 U. S. 101, followed in Smith v. Indiana, 138. Logan County v. Townsend, 139 U. S. 67, followed in Schuyler National Bank v. Gadsden, 451. New Orleans v. Stempel, 175 U. S. 309, followed in Board of Assessors v. Comptoir National, 388. Northern Pacific B. B. Co. v. Lewis, 162 U. S. 366, followed in United States v. Denver & Bio Grande B. B. Co., 84. Osborne v. Florida, 164 U. S. 650, followed in Allen v. Pullman Co., 171. Pickard v. Pullman Co., 117 U. S. 34, followed in Allen v. Pullman Co., 171. Pullman Co. v. Adams, 189 U. S. 420, followed in Allen v. Pullman Co., 171. The Belfast, 7 Wall. 624, followed in The Bobert W. Parsons, 17. United States n. More, 3 Cranch, 159, 172, followed in Louisville Trust Co. v. Knott, 225. CITIZENSHIP. See National Banks, 2; Jurisdiction. COMMERCE. See Interstate Commerce; Jurisdiction, E 2. Ô8â ÎNDËX, COMMERCIAL NAME. See Trade Name. COMMON CARRIERS. See Carriers; Maritime Law; Railroads. COMMON LAW. See Jurisdiction, A 5, 6. CONDEMNATION OF LAND. See Damages; Evidence, 2, 3; Instructions to Jury, 1. CONGRESS, POWERS OF. See Interstate Commerce. CONGRESS, ACTS OF. See Acts of Congress. CONSPIRACY. See Constitutional Law, 6. CONSTITUTIONAL law. 1. Action under constitution, etc., defined. A suit does not arise under the Constitution and laws of the United States unless a dispute or controversy as to the effect or construction thereof upon the determination of which the result depends appears in the record by the plaintiff’s diverse pleading. Arbuckle v. Blackburn, 405; Spencer v. Duplan Silk Co., 526. 2. Contracts, impairment of. Restraints upon governmental agencies will not be readily implied. There are presumptions against the granting of exclusive rights and against limitations upon the powers of the government. By the statute of 1891, cities in Missouri may erect and operate then’ own electric light plants, or they may grant the right to persons or corporations to erect and operate such plants for not exceeding a period of twenty years. The city of Joplin by ordinance adopted subsequent to the statute, granted such right for twenty years to a corporation which erected and has ever since operated the plant. The ordinance conferred rights, exacted obligations, fixed rates and provided for its written acceptance and the corporation so accepted it. By a later ordinance the city provided for the issue of bonds to build its own plant. In an action brought by the Light Company to restrain the erection of the plant during the continuance of the twenty year term, on the ground that INDEX. 583 the ordinance violated the Federal Constitution in that it impaired the obligation of the contract existing under the ordinance granting the franchise, held that as such ordinance did not provide that the city would not erect its own plant no such provision could be implied: that the fact that cities could elect under the statute of 1891 either to erect their own plants or grant franchises, could not in case of their election to grant the franchise be construed as an implied contract not to erect their own plants during the period for which the franchise was granted. Joplin v. Southwest Missouri Light Co., 150. 3. Contracts—Impairment of—Conflicting city ordinances. An ordinance of a city of Kentucky before it became a city of the third class giving a water company a right to make and enforce, as part of the conditions upon which it would supply customers, all needful rules and regulations not inconsistent with the law must be construed as to the law, as it might be altered, and when the city becomes a city of the third class and thus has power under the general law to provide the city with water by contract or by works of its own and to make regulations for the management thereof and to fix prices to consumers, an ordinance subsequently enacted during the life of the franchise regulating the management of the waterworks and fixing prices of the water which are not unreasonable, is not void as against the water company under the impairment clause of the Constitution of the United States. Owensboro v. Waterworks Co., 358. 4. Contracts—Provision of tax law exempting corporation not a contract. A provision in a general tax law that railroads thereafter building and operating a road north of a certain parallel shall be exempted from the tax for ten years, unless the gross earnings shall exceed a certain sum, is not addressed as a covenant to such railroads and does not constitute a contract with them, the obligations of which cannot be impaired consistently with the .Constitution of the United States. Wisconsin & Michigan Ry. Co. v. Powers, 379. 5. Commerce clause—Repugnancy of state tax law. The provision of the tax law of the State of Tennessee of 1887, that sleeping car companies doing business in the State pay a certain sum per annum per car and which by its terms applies to cars running through the State as well as to those operated wholly within the State, is repugnant to the commerce clause of the Federal Constitution. (Pickard v. Pullman Co., 117 U. S. 34.) The provision of the tax law of the State of Tennessee of 1889, that sleeping car companies pay a tax of $3000 per annum in lieu of all other except ad valorem tax for one or more passengers taken up at one point within the State and delivered at another and transported wholly within the State and which does not refer to or affect the interstate business of the companies, is not repugnant to the commerce clause of the Federal Constitution. (Osborne v. Florida, 164 U. S. 650.) Such tax will not be regarded as a disguised attempt to tax the privilege of engaging in 584 INDEX. interstate commerce if, under the laws of the taxing State, it is not compulsory for a corporation engaged in interstate commerce to carry on that part of its business which is wholly within that State. (Pullman Co. v. Adams, 189 U. S. 420); Allen v. .Pullman Co., 171. 6. Cruel and unusual punishment—Diversity of sentence in similar cases. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one, and where the highest court of a State has sustained the sentences of ten years each, imposed on two men convicted with a third of a conspiracy to defraud, and such punishment does not from the record appear unreasonable considering the nature of the offense, this court will not set aside the judgment as imposing a cruel and unusual punishment either on the facts or because the other person convicted was only sentenced to seven years. Howard v. Fleming ; Howard v. North Carolina, 126. 7. Due process—Hearing before assessment board. In the apportionment of assessments for improvementsdue process of law is afforded to the taxpayer if he is given an opportunity to be heard before the body making the assessment; and, so far as the Federal Constitution is concerned, the state legislature may provide that such hearing shall be conclusive. Hibben v. Smith, 310. 8. Due process—Equal protection—Rights unimpaired by eight hour law. In the exercise of its power a State may by statute provide that eight hours shall constitute a day’s work for all laborers employed by or on behalf of the State or any of its municipalities and making it unlawful for anyone thereafter contracting to do any public work to require or permit any laborer to work longer than eight hours per day except under certain specified conditions and requiring such contractors to pay the current rate of daily wages. And one who after the enactment of such a statute contracts for such public work is not by reason of its provisions deprived of his liberty or his property without due process of law nor denied the equal protection of the laws within the meaning of the Fourteenth Amendment even though it appear that the current rate of wages is based on private work where ten hours constitute a day’s work or that the work in excess of eight hours per day is not dangerous to the health of the laborers. Qwoere, whether a similar statute applicable to laborers on purely private work would be constitutional, not decided. Atkin v. Kansas, 207. 9. Due process—Equal protection—Commerce clause.— Construction of ana prosecution under constitutional police regulation. Where the constitutionality of a police regulation of a State is conceded, the construction placed thereon, and prosecutions commenced in view of such construction thereunder by an officer of the State in the discharge of his duty do not in themselves constitute a deprivation of property without due process of law, a denial of equal protection of the law by the State, or any direct interference with interstate commerce, and afford no ground for the jurisdiction of the Circuit Court as a court of the United States. Arbuckle v. Blackburn, 405. INDEX. 585 10. Due process—Omission in charge to jury of statement of presumption of innocence. When the highest court of the State has decided that in a criminal trial it is sufficient to charge the jury correctly in reference to reasonable doubt and that an omission to refer to any presumption of innocence does not invalidate the proceedings, such an omission cannot be regarded by this court as a denial of due process of law. Howard v. Fleming; Howard v. North Carolina, 126. 11. Equal protection—Infringement of right by State in exemption law. The rights of an individual under the Fourteenth Amendment turn on the power of the State. A State does not infringe his rights under that amendment by exempting a corporation from a tax either wholly or in part, whether such exemption results from the plain language of a statute or from the conduct of a state official under it. Missouri v. Dockery, 165. 12. State—Power to limit jurisdiction of state courts. Consistently with Article IV, §1, of the Constitution of the United States, a State may deny jurisdiction to the courts of the State over suits by a corporation of another State against a corporation of another' State on a foreign judgment. Anglo-American Provision Co. v. Davis Co., 373. 13. State—Taxation of evidence of credits in hands of agent. There is no inhibition in the Federal Constitution against the right of a State to tax property in the shape of credits where the same are evidenced by notes or obligations held within the State, in the hands of an agent of the owner for the purpose of collection or renewal, with a view to new loans and carrying on such transactions as a permanent business. A foreign corporation, whose business in Louisiana was in the hands of an agent, furnished to customers sum of money and took from them collateral security; for reasons satisfactory to the parties, instead of taking the ordinary evidence of indebtedness, the customers drew checks, never intended to be paid in the ordinary way, but intended by the parties to be held as evidence of the amount of money actually loaned; these loans could be satisfied by partial payments from time to time, interest being charged upon the outstanding amounts, and if not paid at maturity the collateral was subject to sale; when paid, the money might be again loaned by the agent to other parties, or remitted to the home office, and the business was large and continuing in its character. Held, that as such checks were given for the purpose of evidencing interest bearing debts, they were the evidence of credit for money loaned, localized in Louisiana, protected by its laws, and properly taxable there under the provisions of the tax law of 1898 of Louisiana, which has already been sustained as constitutional by this court. (New Orleans v. Stempel, 165 U. S. 309.) Board of Assessors n. Comptoir National, 388. See Res Judicata. Ö86 INDEX. CONTRACTS. 1. Breach by government of contract for supplies. The United States bought hay for a camp, providing that the quantity bought be decreased at its option, not exceeding twenty per cent, and if the troops should be wholly or in part withdrawn the contract should become inoperative to the extent of such reduction, and that deliveries were to begin within five days and proceed at daily rates of at least one sixtieth of the amount, or in such quantities and in such times afterward as might be designated by the quartermaster. The troops were withdrawn, orders were delayed beyond sixty days and a little less than the whole amount was ordered. The claimant protested and claimed damages but accepted payment for the whole without reserving any rights at the time. Held that there was no breach of contract by the United States even if it was still open to the claimants to demand damages in case of a breach, and if the setting up of the invalidity of the contract by the United States in answer to the demand would have opened the way to a quantum valebat. St. Louis Hay & Grain Co. v. United States, 159. 2. Executed—Recovery on a quantum valebat precluded. When a void but not illegal contract of sale has been performed on both sides, the vendor cannot recover on a quantum valebat less the amount already paid. Ib. See Constitutional Law, 2, 3, 4; Maritime Law,* Instruction to Jury, 2; Railroads, 1; Interstate Commerce; Res Judicata; Jurisdiction, A 6; D; Sureties. CONTRIBUTORY NEGLIGENCE. See Negligence. COPYRIGHT. Notice—False impressment in foreign country—Sale of article in United States. Prior to the amendment of March 3, 1897, there was no provision in the copyright laws forbidding the importation into, or the sale after its importation within, the United States of an article falsely stamped with the copyright notice in a foreign country and the proviso in the amending act expressly saved the right to sell such an article if it had been imported prior thereto. McLoughlin v. Raphael Tuck Co., 267. See Statutes, A, 1. CORPORATIONS. Foreign—Power of State as to. A corporation created by one State can transact business in another State only with the consent of the latter, which may accompany its consent with such conditions as it thinks proper to impose, provided they are INDEX; 587 hot repugnant to the Constitution and laws of the United States, or inconsistent either with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or those principles of natural justice which forbid condemnation without opportunity for defense. Cable v. Life Insurance Co., 288. See Constitutional Law, 13; Taxation, 3. COURTS. See Constitutional Law, 12; National Banks, 1; Federal Question, 5; Practice; Jurisdiction; Railroads, 1; Land Department; Removal of Causes; Res Judicata. COURT AND JURY. Question for jury—Care in crossing railroad tracks. Where it is an issue in the case whether a man was killed at a crossing by a regular train which he should know was approaching at about that hour, or by a runaway car of which he had no knowledge, and there is evidence on such issue from which reasonable men might draw different conclusions, it is not error to leave it to the jury to determine whether or not it was a want of ordinary or reasonable care and prudence for deceased to attempt to cross the track at the time and under the circumstances, the jury being charged that their verdict should be for the defendant if they found that he had been killed by the regular train. Baltimore & Potomac B. JR. Co. v. Landrigan, 461. See Instructions to Jury. CRIMINAL LAW. See Constitutional Law, 6. DAMAGES. Condemnation of land—Prospective damages. Where the government condemns part of a parcel of land the damage to the remainder of that parcel arising from the probable use which the government will make of the part taken is a proper subject of award, but when the entire parcel is taken the owner cannot recover for prospective damages, owing to such probable use, to separate and adjoining parcels owned by him. Sharp v. United States, 341. See Instructions to Jury, 2. DISTRICT OF COLUMBIA. See Negligence, 2 (Mosheuvel v. District of Columbia, 247); Presumption, 1 (Baltimore & Potomac B. B. Co. v. Landrig an, 461); Railroads, 2. 588 INDEX. DUE PROCESS OF LAW. See Constitutional Law. EJECTMENT. Alienable title—Power of municipality to convey land acquired under patent. An act of Congress entitled “An act to enable the City of Denver to purchase certain lands for a cemetery” authorized the mayor to enter the lands at a minimum price “ to be held and used for a burial place for said city and vicinity.” A patent was issued conveying the land to the “ mayor in trust for said city and to his successors ” which was confirmed by a later act. The Catholic Bishop of Denver petitioned the common council for a conveyance of a part of the land to him and his successors on the ground that it had been bought by him and used as a burial place. The petition was granted and the mayor made a deed in the name of the city, the grantee being described as Bishop of Colorado, habendum to him and his heirs. Subsequently the bishop conveyed a part of the land so conveyed to him which had not been used for burial purposes to defendant’s predecessor in title. A later mayor brought ejectment for this part. Held that the title was not in the plaintiff. Semble that the title was in the city, that it had power to convey the land and that the deed executed was sufficient so far as the question was open. Wright v. Morgan, 55. See Adverse Possession. EMINENT DOMAIN. See Damages; Evidence, 2, 8; Instructions to Jury, 1. EQUITY. He who seeks equity must do equity—National Banks and state taxation. Where the amount of a State tax which shareholders of a National Bank should pay if all the deductions they claimed were allowed, is ascei-tainable, neither they, nor the bank itself on their behalf, can main tain an action in equity to restrain the collection of the entire tax. They should, under the rule that he who seeks the interposition of a court in equity, must himself do equity, first offer to pay that part o the tax which under their contention is not illegal. People s Nationa Bank v. Marye, 272. See Jurisdiction, E, 1; Railroads, 1; Trade-Name. ERIE CANAL. See Jurisdiction, D. INDEX. 589 ESTOPPEL. See Res Judicata. EVIDENCE. 1. Burden of proof of lawful taking of logs in an action by United States for conversion—Cannot be shifted. Where, in an action by the United States against a railroad corporation for the conversion of logs cut from government lands, the defendant admits the taking but justifies its action under a statute permitting it to take timber for construction and repair of its railway, the burden of proving that the logs were taken and used in accordance with the statute is upon the defendant. Northern Pacific B. B. Co. v. Lewis, 162 U. S. 366. This burden cannot be shifted to the plaintiff because the timber was cut by an agent of the defendant. The presumption attaching to public officers that they act within the scope Of their authority does not apply to agents of private persons sued for conversion. United States v. Denver & Bio Grande B. B. Co., 84. 2. Competency—Condemnation proceedings—Offers received. On condemnation proceedings it was not error, undei- the circumstances of this case, to exclude evidence offered by the owner as to offers received by him to purchase or lease the property. Evidence as to offers for real estate is entirely different from evidence as to prices offered and accepted or rejected for articles which are constantly dealt in and have a known and ready sale in the markets and exchanges. Sharp v. United States, 341. 3. Competency—Condemnation poceedings on new trial de novo. Where on condemnation proceedings, under the practice in New Jersey, after a trial in the District Court there is a new trial in the Circuit Court with a jury, the trial is de novo and the only testimony to be considered is that received on the second trial supplemented by the personal view of the premises by the jury. Ib. See Maritime Law, 3. FEDERAL QUESTION. 1. Essentials for bringing Federal question before Supreme Court. When a suit does not really and substantially involve a dispute or controversy as to the effect or construction of the Constitution or laws of the United States, upon the determination of which the result depends, it is not a suit arising under the Constitution or laws; and it must appear on the record, by a statement in legal and logical form, such as is required in good pleading, that the suit is one which does really and substantially involve a dispute or controversy as to a right which depends on the construction of the Constitution or some law or treaty of the United States, before jurisdiction can be maintained on this ground. Defiance Water Co. v. Defiance, 184. 2. State not Federal—Amount of benefits—Decision of assessment board. The amount of benefits resulting from an improvement, and assessed under 590 INDEX. a state statute which this court has declared to be constitutional is a question of fact, and a hearing upon it being assumed, the decision of the board making the assessment is final and no Federal question arises. Hibbenv. Smith, 310. 3. State not Federal—Question of public officer's power. The extent of the power of a public officer to question the constitutionality of a state statute as an excuse for refusing to enforce it is purely a local question. (Huntington v. Worthen, 120 U. S. 1.) Smith v. Indiana, 138. 4. State not Federal—Validity of judgment of state court. Whether a judgment in a state court based on an assessment is void or only voidable because some of the members of the board were residents of, and taxpayers in, the assessment district is a proper question for the state courts to decide, and after the highest court of the State has held that the judgment is not void and cannot be attacked collaterally, this court will follow that determination. Hibben n. Smith, 310. 5. State courts competent to decide—Interposition of Federal courts in case involving. State courts are competent to decide .Federal questions arising before them; it is their duty to do so, and the presumption is that they will do what the Constitution and laws of the United States require. If error intervenes the remedy is found in § 709 of the Revised Statutes, and the Federal courts cannot be called on to interpose in a controversy properly pending in the state courts on the ground that the state court might so decide as to render their final action unconstitutional. Defiance Water Co. v. Defiance, 184. See Jurisdiction. FOREIGN CORPORATION. See Constitutional Law, 13; Corporations. FOREIGN STATE. Action by, on behalf of lessee—Fule of nullum tempus. The rule of nullum tempus cannot be invoked in our courts in favor of a foreign government suing for the benefit of an individual which is its lessee. Quaere, and not decided, whether the rule could be invoked by a foreign government even when suing in its sovereign capacity. French Republic v. Saratoga Vichy Co., 427. See Treaties. GEOGRAPHICAL NAME. See Trade-Name. INDEX. 591 GOVERNMENTAL POWER. Regulation of water rates—Alienable only by grant. The power to regulate water rates is a governmental power continuing in its nature which, if it can be bargained away at all, can only be by words of positive grant and if any reasonable doubt exists in regard thereto it must be resolved in favor of the existence of the power. Owensboro v. Waterworks Co., 358. GUARANTY. See Sureties. HARTER ACT. See Maritime Law, 1, 3, 5. HIGHWAYS. See Negligence, 2; Public Works. IMPORTS. See Taxation, 1. INDICTMENT. See Jurisdiction, A 5. INJUNCTION. See Railroads, 1. INSTRUCTIONS TO JURY. 1. Condemnation proceedings—Question of value. Where all the circumstances as to value, including prospective enhancement if projected railroads and trolleys were built, are left to the jury, which was also permitted to consider damages to adjoining parcels if by reason of the parcel taken, they were made too small to work profitably, this court will not reverse on the ground that the jury was not properly charged as to questions of value. Sharp v. United States, 341. 2. Sufficiency, as to measure of damages. Plaintiff (below) contracted with defendant street railway company to convey to it a right of way through her land and to pay five hundred dollars in five years, it to construct extension over such right of way and operate same, running cars at certain designated hours. The right of way was conveyed, the note given, the extension constructed and operated for several years, after which the railroad company ceased and refused to run its cars at the times designated, whereupon, her note being then overdue and unpaid, plaintiff demanded the removal of the tracks which was done. In an action to recover damages for breach of contract the trial court instructed the jury that 592 INDEX. the measure of damages was the excess, if any, in the market value of the land at the time the defendant entirely ceased to run its cars upon that part of the line which exte.nded to and through the plaintiff’s land with the cars running in accordance with the terms of the contract of the parties in evidence, and the expectation of their continuing so to run in the future, over the market value of the said land at the same time without any cars running on said part of said line and without any expectation that they would ever run thereon. Held that the instruction was not sufficiently guarded and was erroneous, that what might have been made by selling the land at a value enhanced by the operation of the extension in perpetuity was too dependent on uncertain contingencies to justify peremptorily instructing the jury that such anticipated gains were probable and contemplated consequences of the breach. Eckington & Soldiers' Home Ry. Co. v. McDevitt, 103. 3. Sufficiency—Failure to state in detached remarks proper limitation of liability. Where it appears by an examination of the entire charge to the jury that the court understood the true rule as to defendant’s liability and the jury were informed of the limitations thereon, no exception being taken except to a single detached remark, and no request being made to the court to restate the rule with his attention called to the defective portion of his charge, the judgment will not be reversed because in certain detached and incidental remarks made in regard to defendant’s liability the court failed to state the proper limitation of liability, it also appearing that the remarks were used under such circumstances as made it absolutely certain that the jury was not misled thereby. Choctaw, Okla. & G. R. R. Co. v. Tennessee, 326. 4. Sufficiency—Omission as to reasonable care immaterial. There is no necessity for the court to call the attention of the jury to the rule that a railroad company is only bound to exercise reasonable care to supply a reasonably safe engine, when it appears from uncontradicted evidence that the engine supplied was not equipped with brakes under circumstances which made the omission prima facie evidence of negligence. Choctaw, Okla. & G. R. R. Co. v. Holloway, 334. See Constitutional Law, 10; Court and Jury. INSURANCE COMPANIES. See Jurisdiction, E 1. INTERSTATE COMMERCE. Contracts for limiting liability of carrier—Powers of State in absence oj Congressional legislation. While Congress under its power may provide for contracts for interstate commerce permitting the carrier to limit its liability to a stipulated valuation, it does pot appear that Congress has, up to the INDEX. 593 present time, sanctioned contracts of this nature; and, in the absence of Congressional legislation on the subject, a State may require common carriers, although in the execution of interstate business, to be liable for the whole loss resulting from their own negligence a contract to the contrary notwithstanding. There is no difference in the application of a principle based on the manner in which a State requires a degree of care and responsibility whether enacted into a statute or resulting from the rules of law enforced in its courts. Pennsylvania R. R. Co. v. Hughes, 477. See Constitutional Law, 9; Taxation, 1, 3. JUDGMENT. Validity not affected by omission of recital of reasons for. This court will not hold that the omission of the recital of reasons which justify the peculiar form of a sentence will invalidate a judgment which is warranted by the statute and which has been sustained by the highest court of the State. Howard n. Fleming; Howard v. North Carolina, 126. See Federal Question, 4; Jurisdiction, A 7. JURISDICTION. A. Of This Court. 1. Appeals in bankruptcy. Appeals to this Court from decrees of the Circuit Courts of Appeals revising proceedings of the inferior courts of bankruptcy under section 24 b of the bankruptcy law, will not lie. Holden v. Stratton, 115. 2. Direct certification from Circuit Court; question of jurisdiction of Cir- cuit Court as Federal court. The question of jurisdiction which the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, permits to be certified directly to this court must be one involving the jurisdiction of the Circuit Court as a Federal court, and not simply its general authority as a judicial tribunal to proceed in harmony with established rules of practice governing courts of concurrent jurisdiction as between themselves. Where the Circuit Court has jurisdiction and appoints a receiver the question of jurisdiction under the above act cannot, on the intervention of a receiver appointed by the state court, be decided and certified directly to this court to ascertain whether the Circuit Court or the state court had prior authority over the trust estate involved in the litigation. This court need not consider itself bound as to a question of jurisdiction because it may have exercised jurisdiction in a case where the question might have been raised but passed sub silentio. (United States v. More, 3 Cranch, 159, 172.) Louisville Trust Co. v. Knott, 225. 3. Direct appeal from Circuit Court for revision of judgment on merits. When the Circuit Court has decided the question of its jurisdiction and VOL. CXCI—38 594 INDEX. the alleged unconstitutionality of a state law in favor of the plaintiff, but has decided against him on the merits, the plaintiff cannot appeal directly to this court under the act of March 3, 1891, c. 517, § 5, for the purpose of a revision of the judgment on the merits. Anglo-American Provision Co. v. Davis Co., 376. 4. Error to state court—Effect of discussion of Federal question by state court. Where no claim to protection under the Federal Constitution was presented to the Supreme Court of the State, a writ of error will not lie from this court even though Federal questions were discussed in the opinions of the state court. Howard v. Fleming ; Howard v. North Carolina, 126. 5. Error to state court—Common-law offense cognizable by state court—Suffi- ciency of indictment. The decision of the highest court of a State that conspiracy to defraud is a common-law offense and as such cognizable in the courts of that State, although there be no statute defining or punishing such a crime, is not a Federal question, nor reviewable by this court. Nor can this court inquire whether the indictment sufficiently charged the offense. Howard v. Fleming ; Howard v. North Carolina, 126. 6. Error to state court—Review of judgment of state court. A bill of lading was given in New York State for transporting a horse to a point in Pennsylvania, containing a clause limiting the carrier’s liability to a stipulated value in consideration of the rate paid, the shipper having been offered a bill of lading without such limitation on payment of a higher rate signed a memorandum accepting the contract at the lower rate. The common law as interpreted by the courts of New York and the Federal courts permits a common carrier to limit by contract his liability for his own negligence; as interpreted by the courts of Pennsylvania he cannot so limit it. On writ of error to review a judgment recovered in a state court of Pennsylvania by the shipper for damages caused by the negligence of the carrier in excess of the limited amount: Held that the jurisdiction of this court to review a judgment of a state court under section 709, U. S. Rev., depends upon the assertion of a right, privilege or immunity under the Federal Constitution or laws set up and denied in the state courts. Held that the highest court of a State may administer the common law according to its own understanding and interpretation thereof, being only amenable to review in this court where some immunity or privilege created by the Federal power has been asserted and denied. Pennsylvania R. R. Go. v. Hughes, £Tl. 7. Judgment of Circuit Court of Appeals in action by National Bank, final- ity of . . An action brought by a national banking association in a circuit court o the United States against citizens of another State, where no groun of jurisdiction appears in the record except diversity of citizenship INDEX. 595 is not, owing to the mere fact that the plaintiff is organized under the national banking law, one arising under the laws of United States, and under the Judiciary Act of March 3, 1891, the judgment of the Circuit Court of Appeals is final and, therefore, not subject to review by this court. Continental National Bank v. Buford, 119. 8. First and fundamental question on writs of error and appeals. 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, and such a question arising on the face of the record cannot be ignored. It must be answered by the court whether propounded by counsel or not. Continental National Bank v. Buford 119. Defiance Water Co. v. Defiance, 184. 9. Who may invoke—Personal interest of party essential. The jurisdiction of this court can only be invoked by a party having a personal interest in the litigation. Where a public officer of a State who has no interest in the controversy except as such officer tests the constitutionality of a state statute purely in the interests of third parties, by a suit in the state courts and a judgment has been rendered against him by the highest court of the State, a writ of error from this court to revise such judgment will not lie. The fact that costs were rendered against him personally in the state court will not give this court jurisdiction in such case. Smith v. Indiana, 138. See Jurisdiction, B. B. Of Circuit Court of Appeals. 1. Finality of judgment. Where the jurisdiction of the Circuit Court is invoked on the ground of diverse citizenship it will not be held to rest also on the ground that the suit arose under the Constitution of the United States unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution upon the determination of which the result depends, and which appears on the record by a statement in legal and logical form such as good pleading requires ; and where the case is not brought within this rule the decree of the Circuit Court of Appeals is final. Arbuckle v. Blackburn, 405. 2. Where jurisdiction of the Circuit Court is rested on diverse citizenship and plaintiff relies wholly on a common-law right, the fact that defendant invokes the Constitution and laws of the United States does not make the action one arising under the Constitution and laws of the United States and the judgment of the Circuit Court of Appeals is final. Spencer v. DupZan Silk Co., 526. See Ante A 7. C. Of Circuit Courts. Equity—Power to maintain cause as involving Federal question. The fact that the council of a city has passed a resolution providing for 596 INDEX. payment of a pending bill of a water company claiming a franchise, with a saving clause against the city, being estopped from denying the existence of contract right, does not give the Circuit Court jurisdiction to maintain an action in equity to enjoin the city from appropriating money in the water fund to the payment of any indebtedness other than the complainant on the ground that such resolution is a law impairing the obligation of a contract within the purview of the Federal Constitution. Defiance Water Co. v. Defiance, 184. See Constitutional Law, 3, 9 ; Removal of Causes. D. Of Admiralty Courts. Scope—Erie Canal within—Enforcement of lien for repairs to canal boat. 1. Although the Erie Canal is wholly within the State of New York, it connects navigable waters and is a great highway of commerce between ports in different States and foreign countries, and is, therefore, a navigable water of the United States within the legitimate scope of the admiralty jurisdiction of the courts of the United States. 2. The enforcement of a lien in rem for repairs made in a port of the State to which it belongs to a canal boat engaged in traffic on the Erie Canal and the Hudson River is wholly within the jurisdiction of the admiralty courts and such lien cannot be enforced by any proceeding in rem in the courts of the State of New York. 3. The contract for making such repairs is a maritime contract and its nature as such is not affected by the fact that the repairs were made in a dry dock or by the fact that the canal boat was engaged in traffic wholly within the State of New York. (The Belfast, 1 Wall. 624.) The Robert W. Parsons, 17. E. Of Federal Courts Generally. 1. Equity—Not invocable for relief of foreign corporation sued in state court, where right of removal exists. Where an insurance company, citizen of one State, has voluntarily accepted a license from another State, and has been sued in a court of that State, the fact that the license is subject to be revoked if the company should remove the action to the Federal courts, furnishes no ground for appealing to a Federal court to take jurisdiction of a suit in equity to cancel the policy if otherwise the court would have no jurisdiction. The theory that a complainant has no adequate remedy at law because it would not have the same control over an action brought against it as defendant as it would have as plaintiff in a suit brought by it, does not lay the foundation for the jurisdiction of a Federal court in an action at equity to enjoin the prosecution of the sui against it. Equitable jurisdiction does not accrue to the Federa court because it is thought that the law as administered by it is more favorable to a party seeking its aid than the law as administered by the courts of a State in which it has been sued, Cable v. Life Insur