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107.US.433

1. Where, in an action brought in a court of Virginia against an indorser of promissory notes, payable August, 1861, at Alexandria in that State, the point in controversy being as to tile sufficiency of the notices of dishonor, and tile court decided in substance that by the general principles of commercial law, if, during the late civil war, he abandoned his residence in loyal territory and went to reside permanently within the Confederate lines before the note matured, a notice left at his former residence was not sufficient to charge him, if his change of residence was known, or by the exercise of reasonable diligence might have been knovn, to the holder of the note when it matured, - Hed, that no Federal question was raised by the decision. 2. Where the plaintiff's prayer for instructions relates also to tile Virginia ordinance of secession and the proclamations of the President of April, 1861, and Aug. 16, 1861, but, as the case stood upon the evidence, neither of them was involved, and no title, right, privilege, or immunity thereunder was claimed by either party, -Held, that the prayer was properly refused; and, the only Federal question thereby sought to be raised having been correctly disposed of, this court cannot consider the other errors assigned.

This is a suit against William N. McVeigh, as indorser of two promissory notes, and the matter in dispute is as to the sufficiency of the notices of dishonor. The notes fell due, one on the second, and the other on the twenty-third of August, 1861, at the Exchange Bank of Virginia, in Alexandria. The notary, in his certificate of protest, stated that he had delivered 'a notice of protest to William N. McVeigh by leaving it at his dwelling in the hands of his white servant,' and the issue on the trial was as to whether the house at which the notice was left was in fact the dwelling of McVeigh at the time. Upon this point McVeigh testified, in substance, that at some time previous to the twenty-fourth of May, 1861, he sent his family to his farm in Culpeper county, Virginia; that he remained at his home in Alexandria until after the military forces of the United States took possession of the city, which was the twenty-fourth of May; that on the thirtieth of May, under a pass from the United States authorities, he left his home and went within the confederate lines to join his family, with the intention of not returning so long as the city remained in the possession of the United States, which he supposed would be but a short time; that he left in his house a white woman about 70 years of age, who had been for many years his servant, and three colored servants, who were slaves; that he did not discharge his white servant, but advised her to go to the country; that on leaving he had great doubts whether he would ever see his property in Alexandria again; that he remained with his family in Culpeper until the fall of 1861, when he removed to Richmond and engaged in business there, and that he remained in Richmond until 1874, when he returned with his family to Alexandria. At the close of the testimony, the court, at the request of McVeigh, charged the jury that 'if, on or about the thirtieth of May, 1861, and prior to the maturity of the notes sued on, William N. McVeigh, having previously sent his family, went himself within the confederate military lines with the intention of not returning to Alexandria during its occupation by the United States forces, and accordingly remained with his family continuously within the confederate military lines throughout the whole period of the war, and did not return to Alexandria with his family until the year 1874; that such absence at the maturity of said notes, respectively, was known, or, by the exercise of reasonable diligence, must have been known, to the Exchange Bank of Virginia at Alexandria; that at the time of said maturity the armed forces of the United States and of the confederate states confronted each other on lines immediately intervening between the city of Alexandria and the said William N. McVeigh, so as to cut off and prevent actual intercourse between the two, and such intervention continued down to the end of the war,—the notice of dishonor shown by the notarial certificates of protest is not sufficient to fix the liability of William N. McVeigh as indorser, and the jury must find for him.' This instruction is substantially the same as that considered in the Bank of the Old Dominion v. McVeigh, 98 U. S. 332, and which we held did not present a federal question. The only difference, even in language, between the instructions in the two cases consists in what is said in this about the establishment and maintenance of the opposing lines of military forces and the prevention of actual intercourse, which was not in the other. No importance was given in the argument, however, to this difference, and it may as well be said now, as it was before, that 'all the court below decided was that, by the general principles of commercial law, if, during the late civil war, an indorser of a promissory note abandoned his residence in loyal territory, and went to reside permanently within the confederate lines before the note matured, a notice of protest left at his former residence in the loyal territory was not sufficient to charge him, if his change of residence was known, or by the exercise of reasonable diligence might have been known, to the holder of the note when it matured.' Under the question raised by the charge as given, therefore, we have no jurisdiction. But the plaintiff asked of the court certain instructions, which were not given, and error is assigned for this. The fourth of these requests presents all the questions relied on, and was as follows: 'If the jury believe from the evidence that the notes sued on were discounted by the Exchange Bank of Virginia at Alexandria before their maturity, or that they were renewals of notes theretofore discounted; that at the time of discount the makers, indorser, and indorsee were residents of said city; that before the maturity of the said notes the federal forces had taken permanent possession of said city; that after such possession the indorser, William N. McVeigh, left his residence in said city, with the intention of returning thereto, and went within the confederate lines to join his family, at the time visiting in the county of Culpeper; that the said indorser, at the time the said notes respectively became due, was within the confederate lines in adherence of the southern confederacy in obedience to the Virginia ordinance of secession,—the court instructs the jury that the said ordinance of secession was of no binding force or obligation; that neither the proclamations of the president of the United States, issued in April, 1861, and August 16, 1861, nor the existence of the war, nor the ordinance of secession of the state of Virginia, obliged the said indorser to be absent from his residence in Alexandria, nor relieved the holder of said notes from giving him notice of the dishonor and protest thereof; that such absence was voluntary, and did not affect the rights and duties of the parties to said notes. And if the jury believe from the evidence that at the time the said notes respectively fell due the said indorser had not abandoned his intention to return to Alexandria, and had not acquired a domicile elsewhere, and that the notes sued on were duly dishonored and protested, and on the day thereof notice of such dishonor and protest was left at the residence of the indorser in Alexandria with his white servant in charge of the same, such notice was sufficient to bind the indorser, and the jury must find for the plaintiff, if they further believe from the evidence that he is the bona fide holder of said notes.' The only point presented by this request, not disposed of by the charge as actually given, is that which relates to the ordinance of secession and the proclamations of the president. The plaintiff claimed no 'title, right, privilege, or immunity,' either under the ordinance or the proclamations. Neither did the defendant. The issue in the case was as to the fact of a change of residence by the defendant, not as to his power to make a change. The plaintiff did not claim that by reason of the ordinance or the proclamation, or even the existence of actual war, the defendant was prevented from abandoning his home in Alexandria and taking up another inside the confederate lines. Neither did the defendant claim that the ordinance, the proclamation, or the war, of themselves made the notice left at his former home insufficient. The ultimate fact to be determined was whether, when the notice was left at the house formerly occupied by the defendant, it was left at his place of residence. As the case stood upon the evidence, the ordinance of secession and the proclamations were in no way involved. The plaintiff claimed nothing under them, neither did the defendant. The charge in respect to them, as requested, was therefore immaterial, and was properly refused. As this presented the only federal question in the case, and it was correctly disposed of, we cannot consider the other errors assigned. Murdock v. Memphis, 20 Wall. 590. The judgment of the supreme court of appeals of Virginia is affirmed.

107.US.20

1. By a statute of Missouri, stockholders of a corporation at its dissolution are liable for its debts; but it is provided that no person holding stock as executor, administrator, guardian, or trustee, and no person holding stock as collateral security, shall be personally subject to such liability, but the persons pledging such stock shall be considered as holding the same, and liable; and the estates and funds in the hands of executors, &c., shall be liable. Held, 1. That persons to whom a corporation pledges its stock as collateral security are within the exemption of the statute. 2. That certificates of the stock absolute on their face, issued in trust or as collateral security to a creditor, may be shown to be so held by evidence in pail. 3. That the person holding such stock in trust, or as collateral security, is not, by his voting thereon, estopped from showing that it belongs to the company, and that he holds it as collateral security. 2. The Supreme Court of Missouri, after the Circuit Court had decided this case, made a contrary decision against the same stockholders, at the suit of another plaintiff, holding that the clause of exemption in the statute does not extend to persons receiving from the corporation itself stock as collateral security. Held, that this court is not bound to follow the decision. 3. The courts of the United States, in the administration of State laws in cases between citizens of different States, have an independent jurisdiction coordinate with that of the State courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. 4. Where, however, by the course of the decisions of the State courts, certain rules are established which become rules of property and action in the State, and have all the effect of law,- especially with regard to the law of real estate and the construction of State constitutions and statutes, - the courts of the United States always regard such rules as authoritative declarations of what the law is. But where the law has not been thus settled, it is their right and duty to exercise their own judgment; as they also always do in reference to the doctrines of commercial law and general jurisprudence: and when contracts and transactions have been entered into and rights have accrued thereon under a particular state of the decisions of the State tribunals, or when there has been no decision, the courts of the United States assert the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be given by the State courts after such rights have accrued. courts of the United States will lean towards an agreement of views with the State courts, if the question seems to them balanced with doubt. 6. Acting on these principles of comity, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well-considered decisions of the State courts. 7. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the States in controversies between citizens of different States was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views, it is their duty to exercise an independent judgment in cases not foreclosed by previous adjudication. 8. A judgment entered by consent for a specific amount, subject to any credits which the defendant may produce vouchers for, is good as between the parties themselves and their privies.

This is an action brought by the plaintiff, Burgess, against J. & W. Seligman & Co., as stockholders of the Memphis, Carthage & Northwestern Railroad Company, under a statute of the state of Missouri, to recover a debt due to him by the company. The plaintiff, in his petition, alleges that on the fifth on November, 1874, judgment was rendered in his favor against the corporation by the district court of Cherokee county, Kansas, for $73,661, which remains unsatisfied; that in December, 1874, the corporation was dissolved; and that the defendants, at the date of the dissolution and of the judgment, were, and still are, stockholders of the corporation to the amount of $6,000,000, on which there is due and unpaid $1,000,000; and he demands judgment for the amount of his debt. Joseph Seligman, the principal defendant, answered, denying that the defendants were ever stockholders, or subscribers to the stock, of the corporation, and setting forth certain facts and circumstances (stated in the findings) under which the stock alleged to be theirs was merely deposited in their hands by the corporation in trust for a temporary purpose by way of collateral security, to be returned when that purpose was accomplished. The cause was tried by the court, and judgment was rendered for the defendants on certain findings of fact; and the question here is whether the facts as found are sufficient to support the judgment. The principal facts upon which the case must turn are substantially the following: The Memphis, Carthage & Northwestern Railroad Company was a corporation organized under the general laws of missouri, with an authorized capital of $10,000,000. On the tenth of March, 1872, a contract in writing was entered into between the corporation and J. & W. Seligman & Co., (the defendants,) which is set forth in the findings. In the recitals of this contract it was stated that certain municipal subscriptions, in the shape of bonds, to the amount of $645,000, had been obtained in aid of its construction; and that a portion of the road (27 miles) was already graded, bridged, and tied, and the right of way obtained, and all paid for by the proceeds of said subscriptions; and that the company now sought additional capital for procuring iron and equipment for the road by the sale of its first-mortgage bonds. It was, therefore, agreed that the railroad company should furnish the capital necessary to completely prepare the road for the iron, and would execute and deposit with the defendants their entire issue of first-mortgage bonds, to-wit, $5,000,000, and a majority of their capital stock authorized to be issued; 'said stock to remain in the control of said party of the second part [J. & W. Seligman & Co.] for the term of one year at least.' The latter agreed to purchase 2,000 tons of railroad iron under the railroad company's direction, and from time to time to make advances of cash during the completion of the road, not exceeding $200,000, (including the amount paid for iron,) and to receive interest thereon at the rate of 7 per cent. per annum until reimbursed by sale of the bonds. They were to have the privilege for the term of 12 months of calling any portion of the five millions of bonds at the rate of 70 cents currency and accrued interest, less 2 1/2 per cent., and if more bonds were sold than enough to iron the road, they should advance funds to purchase rolling stock, $2,000 per mile, the balance to remain with them on deposit, on interest at the rate of call loans, to pay any deficiency in net earnings of the road to meet demands for interest on the bonds. If the bonds, or part of them, could not, for any unforeseen cause, be negotiated during the next 12 months, the company were to repay to J. & W. Seligman & Co. all moneys advanced by them, with interest at the rate of 7 per cent. per annum, and a commission of 2 1/2 per cent. on all bonds returned. This is the purport of the written agreement. On the first of May, 1872, a trust deed was executed by the company on its railroad and appurtenances to Jesse Seligman and John H. Stewart, trustees, to secure the company's bonds. On the eleventh of May, 1872, the following resolution of the directors was passed: 'It is ordered by the board of directors that in making negotiations for money with J. & W. Seligman & Co., certificates for a majority of the capital stock of this company be issued to the said J. & W. Seligman & Co., to hold in turst for the period of 12 months, and that such certiflcates be signed by the president and secretary, with the corporate seal of this company affixed.' A stock certificate for 60,000 shares, or $6,000,000, was accordingly issued in the usual form to J. & W. Seligman & Co. This certificate was delivered to the defendants, but the court finds that they never subscribed for the stock, nor agreed to do so, and obtained it only in the manner set forth. The list of stockholders on the stock-book of the company, required by law to be kept, contains the names of certain townships which contributed aid to the road, and several individuals, including J. & W. Seligman, but not the amount of shares held. The stock transfer-book (also required by law) contained the same list, with date, number of shares, and amount carried out opposite to each name. The name of J. & W. Seligman appeared therein as follows: NAMES. RESIDENCE. DATE. NO. OF SHARES. AMOUNT IN DOLLARS. * * * * * * * * * * * * * * * * * * * * * J. & W. New York, Dec. 20, 60,000, 6,000,000, Seligman. N.Y. 1872. sixty thousand, six millions. (held in escrow.) * * * * * * * * * * * * * * * * * * * * * The court further found that shortly after the contract of March 14, 1872, Joseph Shippen, an attorney of St. Louis, saw and examined its provisions, and a few days after told Burgess (the plaintiff) of the contract, and that thereby the Seligmans were to have control of the road, and of the stock and bonds, and told Burgess it would be well for him to have a talk with Joseph Seligman before entering into contract with the railroad for its construction. Burgess accordingly saw Seligman, and testifies that the following conversation ensued: 'I told him I had been constructing on that Carthage road, and that I understood he was interested in the road now, and I would like to talk to him on that matter; that this company owed me—or Cunningham, who was the president of the corporation—that he owed me then some money for work I had done between there and Pierce City, and I wanted to know what the prospect was for pushing the work forward, the means of getting the iron, and so on, and he said: 'I think the best thing you can do is to go on with the work westward, and we will have ample means to get hold of the local bonds.' It seems Cunningham had represented to him that there was local means enough to grade the road, and he suggested to me then that I would be safe in going on and entering into such a contract, and then he mentioned that he thought it would be better for all parties if the road was built and the work prosecuted westward.' Afterwards, on June 14, 1872, Burgess entered into a contract with the railroad company for the construction of the road from Carthage, Missouri, to Independence, Kansas. He immediately began work under the contract, and so continued until the fall of 1873. The bonds of the company to the amount of $864,000 were issued, and were negotiated and sold by J. & W. Seligman & Co., they themselves becoming holders of over $400,000 thereof. The stock issued to them was voted on by proxy at two successive annual meetings for election of directors. The company being unable to meet its interest on the bonds, the road and property were delivered to the trustees of the mortgage and sold in December, 1874, and Joseph Seligman and Josiah Macy, as a bondholders' committee, became purchasers thereof, and the railroad corporation was dissolved, in conformity with the laws of Missouri, about the same time. On the fifth of November, 1874, Burgess obtained judgment in the district court of Cherokee county, Kansas, against the railroad corporation for work and materials under his contract, for the sum of $73,661, which judgment recited that it was entered by agreement, with a stipulation that it would be entitled to a credit of the amount which had been paid by the railroad company to subcontractors and laborers of the plaintiff, when the exact amount thereof should have been ascertained and proper vouchers furnished. No credits, however, were claimed. The present action was brought to recover the amount of this judgment. The findings also set out the contract made by Burgess and his associate with the railroad company, fourteenth June, 1872, for constructing the road, by which it appeared that they agreed to take their pay in township bonds, so far as the same should be furnished. Upon these facts the court gave judgment in favor of the defendants. Burgess brings the case here by writ of error. The statutory provision upon which the action is founded is the twenty-second section of article 1 of the act of Missouri relating to private corporations, (1 Wagner's St. c. 37,) which declares as follows: 'If any company, formed under this act, dissolve, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution without joining the company in such suit, and if judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of dissolution for the recovery of the portion of such debt for which they were liable.' By section 9 of article 2 of the same chapter, it is enacted as follows: 'No person holding stock in any such company as executor, administrator, guardian, or trustee, and no person holding such stock as collateral security, shall be personally subject to any liability as a stockholder of such company, but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly, and the estates and funds in the hands of such executor, administrator, guardian, or trustee shall be liable, in like manner and to the same extent, as the testator or intestate, or the ward or person interested in such fund, would have been if he had been living and competent to act, and held the stock in his own name.' The first question for consideration is whether the plaintiff's claim was established. He relied on the judgment recovered by him against the corporation in Kansas. It is contended by the defendants that this judgment does not establish any debt due to the plaintiff. But we think that the objection is not sound. The judgment, as against the corporation and its privies, does establish the debt named therein as due to the plaintiff, but subject to a defeasance for such an amount as might be shown to have been paid to subcontractors and laborers by the corporation. The defendants, as well as the corporation, were at liberty to show any credits which, by the stipulation, were properly applicable in reduction of the amount of the judgment. None such were shown, or attempted to be shown. Until such credits were shown the judgment stood valid for the whole amount. It was not for the plaintiff, but for the defendants, to show that any such credits existed. The next and principal question is whether J. & W. Seligman & & Co., or J. & W. Seligman, were stockholders of the Memphis, Carthage & Northwestern Railroad Company within the meaning of the law. Did the 60,000 shares of stock belong to them? or did they hold it by way of trust or as collateral security for the fulfillment of the company's obligations in relation to the bonds? The courts in England, and some in this country, have gone very far in sustaining a liability for unpaid subscriptions to stock against persons holding the same in any capacity whatever, whether as trustees, guardians, or executors, or merely as collateral security. It cannot be denied that, in some cases, the extreme length to which the doctrine has been pushed has operated very harshly; and in cases in which the corporation itself has no just right to enforce payment, and where no bad faith or fraudulent intent has intervened, it may be doubted whether creditors have any better right, unless by force of some express provision of a statute. The Missouri statute recognizes the justice of making a discrimination between those who hold stock in their own right, and those who hold it merely in a representative capacity, or as trustees, or by way of collateral security. Upon a careful examination of the facts found in this case we do not see how a reasonable doubt can exist that the Seligmans held the stock in question as trustees and custodians by way of collateral security for themselves and the purchasers of the bonds. That was clearly the intent of the parties, declared in almost so many words; and that intent must prevail, unless, by some inadvertency in carrying it our, the Seligmans have been unwittingly caught in some legal snare of which the creditors can take advantage. By the contract exccuted between them and the corporation they were to act as its financial agents in the disposal of its bonds, and to make advances of maney from time to time to enable the company to get the necessary iron for completing its road and equipment for running it. The company were to prepare the superstructure and procure the ties, and everything necessary by way of preparation for laying the iron down; and was to do this by means of the resources it had already secured, and expected to obtain, fron the township subscriptions, in order that the mortgage to be given as security for the bonds might be good and valid for that purpose; and the company further agreed to deposit with Seligman & Co. a majority of its capital stock, to remain in their control for the term of one year at least. The reasonable inference is that this deposit of stock was to be made for the purpose alleged in defendant's answer, namely, as security for the payment of the bonds, and to enable Seligman & Co. to control the corporation, and see that its affairs were honestly conducted and the earnings properly applied. The resolution of the directors, adopted for carrying out this agreement, is to the same purport and effect: it directs that, in making negotiations for money with Seligman & Co., certificates for a majority of the capital stock should be issued to them to hold in trust for the period of 12 months; and when the stock was entered upon the transfer-book in the name of J. & W. Seligman, it was characterized as being 'held in escrow.' The terms used may not have been strictly technical. The issuing of the stock in their names may not have been a 'deposit' or an 'escrow' in the strict sense of those words; but the intent is very clear that the stock was not to be regarded as their stock, but as belonging to the company, though in their names, and that it was to be held by them simply as a security. They never subscribed for the stock; they never became indebted to the company for it; the company never acquired any right to demand from them a single dollar on account of it. Though issued in form, it was only issued in a qualified sense, to subserve a specific purpose by way of collateral security for a limited period, and was returnable to the company when that purpose should be accomplished. It seems to us that the Seligmans, in taking and holding the stock, held it merely in trust by way of collateral security for themselves and others, and that they were, therefore, within the express exception made by the law in favor of those holding stock in that way. It is urged, however, that they are estopped from claiming the benefit of this exemption by their conduct in being represented and voting at stockholders' meetings. But if the law allows stock to be held in trust, or as collateral security, without personal liability, and if, as we suppose, the clear effect of the contract was to create such a holding in this case, we do not see how the doctrine of estoppel can apply. The only parties to complain would be the other stockholders, who might, perhaps, complain that stock held merely in trust, or as collateral security, is not entitled to participate with them in the privilege of voting. But from them no complaint is heard. Creditors could not complain, for, on the hypothesis that stock may lawfully be held at all in trust, or as collateral security, without incurring liability to them, the act of voting on the stock cannot injure or affect them. In the absence of such a law the case might be very different. Undoubtedly it has been held, in cases innumerable, that acting as a stockholder binds one as such; but that is where the law does not allow stock to be held at all without incurring all the liabilities incident to such holding. The present is an action at law based upon the supposed liability of the defendants under a statute which makes the distinction referred to, and which does not make all stockholders liable indiscriminately. We think that this makes a material difference. If the defendants can show, as we think they have shown, that they are within the exception of the statute, the statutory liability does not apply to them. It is by no means clear, however, that J. & W. Seligman did not have a right to vote on the stock, even as against the stockholders. When the law provides that if a person holds stock as a trustee, or by way of collateral security only, he shall not be personally liable for the company's debts, it supposes that the stock shall be holden, and that the pledgee or trustee shall be the holder. If, then, the law is to have any force or effect, the mere fact of holding cannot be set up as a bar or estoppel against proof of the manner and character of such holding. And if such pledgee or trustee may be a holder of the stock in that character, is he bound to be perfectly passive in his holding? He will not be entitled to any dividends or profits, it is true, or, if he receives dividends or profits, he must account therefor; but is it certain that he may not lawfully vote on the stock? An executor administrator, guardian, or trustee certainly may vote; and where is the rule to be found that a holder for collateral security, under a law which permits such holding, may not vote on the stock so held without losing his character as a mere pledgee? But, as before said, if the pledgee in voting the stock exceeds his rights as such pledgee, it cannot have the effect of making the stock his own. No one is injured, and no one can complain except the other stockholders whose rights are invaded. The line of authorities usually quoted to show that those who actually hold stock, and who manifest a voluntary or intentional holding by voting on it, or receiving dividends or other benefit from it, consists mainly of cases in which parties have been held as corporators or associates as between themselves and the corporation or joint-stock association, and as such incidentally liable to the creditors of such companies. Sir Nathaniel Lindsley, in his able Treatise on Partnership, has amply discussed the whole subject upon the platform of the English decisions. His fundamental prosposition is this: 'The type, then, of a member or shareholder of a company is a person who has agreed to become a member, and with respect to whom all conditions precedent to the acquisition of the rights of a member have been duly observed. * * * In practice, difficulties are only prewsented where this standard is not reached; and the important question really is to what extent it can be departed from, and membership be nevertheless constituted.' Volume 1, p. 128. He then devotes many pages to show, by adjudged cases, how a man may be held as a corporator by the company itself, by holding himself out as such, as by taking dividends, etc. Now, in the present case, the relation of J. & W. Seligman & Co. to the corporation is expressly settled and fixed by the written contract between them. We have already examined that contract, and have shown that the stock issued by the corporation to J. & W. Seligman & Co. was issued to them only as trustees and by way of collateral security. The proposition that the corporation could hold them as subscribers to its stock would be in flat defiance of the contract in whole and in every part. We do not know of any iron rule of law which would prevent them from showing this contract relation between them and the company. It is the origin and foundation of their whole connection with it. The sufficiency of the evidence to control their status towards the company is another thing. Its competency seems to us free from doubt. When examined, it shows, as before stated, that as between them and the company the latter has no claim whatever against them in relation to the stock except to have it returned when properly required, after the purpose of its issue had been accomplished. It belongs to the company, and to it alone. J. & W. Seligman are mere trustees or custodians of it for a special purpose, that purpose being collateral security. In this connection we may properly refer to the decision of the court of appeals of Maryland in the case of Matthews v. Albcrt, 24 Md. 527, which was a case arising upon the Maryland statute from which that of Missouri was copied, so far as relates to the exception of those holding stock in trust or as collateral security. That was a suit in equity brought against stockholders to render them liable for the company's debts. One of them, by the name of Tieman, had loaned money to the corporation, and, as security for its payment, a certificate of stock had been issued to him. After its issue an indorsement was made on it by the president of the corporation to the effect that it had been deposited with Tieman as collateral security for the loan. The court said: 'The claim of W. H. Tieman is for $2,000, money alleged to be loaned to the company on the eighth of January, 1859. But it is insisted by the appellees lees that Tieman, instead of being a non-stockholding creditor, is, according to the evidence, a stockholder, and as much liable as the Alberts. We do not concur in this view of the relation of Tieman to the company. In our opinion his claim is for money loaned, and the stock transferred to him was held by him as collateral security for his loan, and, so holding it, he is not personally subject to any liability as stockholder, but is protected by the provision of the twelfth section of the act of 1852, c. 338.' A similar decision in a case arising upon a like statute in New York was made by the commissioners of appeal of that state in the case of MacMahon v. Macy, 51 N. Y. 155. The New York railroad act of 1850, as amended by the act of 1854, made stockholders liable to creditors of the company for the amount unpaid on their stock: but the eleventh section of the act contained precisely the same provision as that in the ninth section of the Missouri law, that no person holding stock as executor, administrator, guardian, or trustee, and no person holding stock as collateral security, should be personally subject to any liability as stockholders, imposing the liability, how ever, as the Missouri law does, on the pledgeor or cestui que trust. Macy was sued as a stockholder, and it was shown on the trial that the stock held by him was transferred to him as collateral security. The referee refused to give any effect to this evidence, holding that parol evidence could not be received to contradict or vary the written assignments or transfers, which were absolute in form. The commissioners of appeal, on this branch of the case, said: 'In this he erred. It is always competent to show that an assignment or conveyance absolute in form, was only intended as a security. There is nothing in any statute which makes the books of the company incontrovertible evidence of ownership of stock. A person may be the absolute legal and equitable owner of stock without any transfer appearing upon the books.' All the judges of the commission concurred in this opinion. We do not well see how any different conclusion could logically have been arrived at. If the law declares that stock held as collateral security shall not make the holder liable, surely it must be competent to show that it is so held. And when this fact is once established, there is an end of the application of estoppel, unless it can be invoked by some party who has been specially misled by the conduct of the defendants. It is urged by the plaintiff in this case that the defendants are estopped as to him, because of a certain conversation between Joseph Seligman and himself before he entered into the contract for construction. We have carefully examined the account given of this conversation by the plaintiff himself, and we see nothing in it which at all compromits the defendants on the question of their actual status and position in the affairs of the company. Especially may this be said in view of the fact that, prior to that conversation, an attorney, who had inspected the contract of Seligman & Co., told him of it, and that it would be well for him to have a talk with Joseph Seligman before entering into contract with the railroad company for its construction. The general purport of the conversation which he afterwards had with Seligman was that Seligman advised him to take the contract and go on with the work, as the best thing for all parties, as there would be ample means to get hold of the local bonds, which would be sufficient to grade the road. Surely there was nothing in this conversation to estop the defendants from showing what their real position was with regard to the stock which they held. But the appellant's counsel, with much confidence, press upon our attention the decisions of the supreme court of Missouri on the questions involved in this case, and on the very transactions which we are considering. That court, since the determination of this case by the circuit court, has given judgment in two cases adversely to the judgment in this, and to the views above expressed. The first case was that of Griswold v. Seligman, decided in November, 1880; the other, that of Fisher v. Seligman, decided in February, 1882, in which the former case was substantially followed and confirmed. The case of Griswold v. Seligman seems to have been very fully and carefully considered. We have read the opinion of the court and the dissenting opinion of one of the judges with much attention, but we are unable to come to the conclusion reached by the majority. We do not consider ourselves bound to follow the decisions of the state court in this case. When the transactions in controversy occurred, and when the case was under the consideration of the circuit court, no construction of the statute had been given by the state tribunals contrary to that given by the circuit court. The federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deferonce. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate, and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment; as they also always do in reference to the doctrines of commercial law and general jurisprudence. So, when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt. Acting on these principles, founded as they are on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well-considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute independent tribunals, which, it might be supposed, would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication. As this matter has received our special consideration, we have endeavored thus briefly to state our views with distinctness, in order to obviate any misapprehensions that may arise from language and expressions used in previous decisions. The principal cases bearing upon the subject are referred to in the margin, but it is not deemed necessary to discuss them in detail.a In the present case, as already observed, when the transactions in question took place, and when the decision of the circuit court was rendered, not only was there no settled construction of the statute on the point under consideration, but the Missouri cases referred to arose upon the identical transactions which the circuit court was called upon, and which we are now called upon, to consider. It can hardly be contended that the federal court was to wait for the state courts to decide the merits of the controversy and then simply register their decision; or that the judgment of the circuit court should be reversed merely because the state court has since adopted a different view. If we could see fair and reasonable ground to acquiesce in that view, we should gladly do so; but in the exercise of that independent judgment which it is our duty to apply to the case, we are forced to a different conclusion. The cases of Pease v. Peck, 18 How. 598, and Morgan v. Curtenius, 20 How. 1, in which the opinions of the court were delivered by Mr. Justice GRIER, are precisely in point. The cardinal position assumed by the state court is that, inasmuch as certificates of stock were in fact issued to and accepted by J. & W. Seligman, and they voted on the stock, they are absolutely estopped from denying that they are the owners of the stock, subject to all the liabilities incident to that relation; and that they cannot have the benefit of the exception accorded by the law to those who hold stock as collateral security, because, as the court holds, that exemption only appelies to those who have received stock in that way from some stockholder who can be made liable as a stockholder, and not to those who have received stock from the corporation itself by way of collateral security. The first position, that the acceptance of the stock, and voting upon it, absolutely precluded the defendants from denying that they are owners of the stock, has been already considered. The great mass of authorities relied on by the supreme court of Missouri, on this part of the case, English as well as American, are cases in which parties have been held as corporators or associates as between themselves and the corporation, and upon that footing have been held responsible to creditors when the rights of creditors have been in question. We think that we have sufficiently shown that these authorties cannot govern the case in hand if any effect is to be given to the law of Missouri, exempting from personal liability those who hold stock in a ficuciary character or by way of collateral security. We will, therefore, briefly examine the other position, that this law does not apply to those who receive stock as collateral security from the corporation itself. The argument that the exemption from liability in cases of stock held as collateral security applies only to those who have received it from third persons who were stockholders, and who can be proceeded against as such, seems to us unsound, and contrary both to the words and the reason of the law. It takes for granted that stock cannot be received as collateral security from the corporation itself and still belong to the corporation, and yet we know that such transactions are very common in the business of this country. The words of the statute are positive, and relate to all holders of stock for collateral security. They are as follows: 'No person holding stock in any such company as executor, administrator, guardian, or trustee, and no person holding such stock as collateral security, shall be personally subject to any liability as stockholder of such company.' The reason of this law is derived from the gross injustice of making a a person liable as the owner of stock when he only holds it in trust or by way of security, and from the inexpediency of putting a clog upon this species of property, which will have the effect of making it unavailable to the owner, or of deterring prudent and responsible men from accepting positions of trust where any such property is concerned. It seems to us that not only the law, but the reason upon which it is founded, applies to the holders of stock as collateral security, whether received from an individual or from the corporation itself. It is argued, however, that the remaining words of the law are repugnant to this view. These words are as follows: 'But the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly, and the estates and funds in the hands of such executor, administrator, guardian, or trustee shall be liable, in like manner and to the same extent, as the testator or intestate, or the ward or person interested in such fund, would have been if he had been living and competent to act, and held the stock in his own name.' The argument is that these words imply that there must always be some person or estate to respond for the stock, or else the exemption cannot take effect. The obvious answer is that this clause fixes the liability upon the pledgeor as a stockholder, where there is a pledgeor who can be made liable in that character. When the corporation pledges its own stock as collateral security, though it cannot be proceeded against as a stockholder eo nomine, the reason is because it is primary liable, before all stockholders, for all its debts. In such a case the clause last quoted would not strictly apply to it; but the holder of its stock as collateral security would be within both the letter and the spirit of the first clause. It is supposed that some flagrant injustice would ensue if there was not some one who could be reached as a stockholder in every case of stock pledged as collateral security; hence, stock pledged by the corporation itself must be regarded as belonging to the pledgee, though no other pledgee of stock is treated in this way. Where is the justice of this? Why should the stock be necessarily considered as belonging to some one besides the corporation itself? Is any one harmed by considering the corporation as its true owner? If the stock had not been issued as collateral security, it would not have been issued at all; it would not have been in existence. Would the creditors have been any better off in such case? They are better off by the issue of the stock as collateral, because the general assets of the company have received the benefit of the moneys obtained by means of the pledge. The more closely the matter is examined, the more unreasonable it seems to deny to a pledgee of the corporation the same exemption which is extended to the pledgee of third persons. We think that the one equally with the other is protected by the express words and true spirit of the law. We might pursue the subject further, and examine in detail the suggestions and authorities adduced by the learned court which decided the cases of Griswold v. Seligman and Fisher v. Seligman, but it is unnecessary. What we have said is sufficient to indicate substantially the grounds on which we feel obliged to dissent from its conclusions. In our judgment the facts found by the court below make out a clear case of stock held in trust and by way of collateral security only, and the judgment rendered thereon was correct. Judgment affirmed.

107.US.466

1. A cemetery company was incorporated in 1854 by an act of Congress which authorized it to purchase and hold ninety acres of land in the District of Columbia, and to receive gifts and bequests for the purpose of ornamenting and improving the cemetery; enacted that its affairs should be conducted by a president and three other managers, to be elected annually by the votes of the proprietors, and to have power to lay out and ornament the grounds, to sell or dispose of burial lots, and to make by-laws for the conduct of its affairs and the government of lot-holders and visitors; fixed the amount of the capital stock, to be divided among the proprietors according to their respective interests; and provided that the land dedicated to the purposes of a cemetery should not be subject to taxation of any kind, and Congress thereafter to alter, amend, modify or repeal the act. Presently afterwards thirty of the ninety acres were laid out as a cemetery, the cemetery was dedicated by public religious services, and a pamphlet was published, containing a copy of the charter, a list of the officers, an account of the proceedings at the dedication, describing the cemetery as "altogether comprising ninety acres, thirty of which are now fully prepared for intermnts," and the by-laws of the corporation, which declared that all lots should be held in pursuance of the charter. No stock was ever issued. But the owner of the whole tract, named in the charter as one of the original associates, and in the list published in the pamphlet as the president and a manager of the corporation, knowing all the above facts, and never objecting to the appropriation of the property as appearing thereby, for more than twenty years managed the cemetery, sold about two thousand burial lots, and gave to each purchaser a copy of the pamphlet, and a deed of the lot, signed by himself as president, bearing the seal of the corporation, and having the by-laws printed thereon. In 1877 Congress passed an act, amending the charter of the corporation, providing that its property and affairs should be managed, so as to secure the equitable rights of all persons having any vested interest in the cemetery, by a board of five trustees to be elected annually, three by the proprietors of lots owned in good faith upon which a burial had been made, and two by the original proprietors; and that of the gross receipts arising from the future sale of lots one-fourth should be annually paid by the trustees to the original proprietors and the rest be devoted to the improvement and maintenance of the cemetery. Hed, that the act of 1877 was a constitutional exercise of the power of amendment reserved in the act of 1851; that the owner of the land was estopped to deny the existence of the corporation, the setting apart of the whole ninety acres as a cemetery, and the right of the lotholders to elect a majority of the trustees; and that he was in equity bound to convey the whole tract to the corporation in fee, and to account to the corporation for three-fourths of the sums received by him from sales of lots since the act of 1877; and the corporation to pay him one-fourth of the gross receipts from future sales of lots. 2. Pending a bill in equity against the owner of land to compel a conveyance of the title, subject to certain rights of his in the rents and profits, a receiver appointed in another suit against him, and to whom lie had by order of court in that suit assigned his interest in the land, applied to be and was made a defendant, and answered, and also filed a cross-bill against both the original parties, which was afterwards ordered to be stricken from the files, with leave for him to apply for leave to file a cross-bill; but lie never. applied for such leave. The case was heard upon pleadings and proofs, and a final decree entered ordering the original defendant to convey to the complainant, and the complainant to account to him or his assigns for part of the rents and profits, and that this decree be without prejudice to the rights of the receiver. Held, that the receiver was.not aggrieved.

This is a bill in equity, filed on the twenty-fifth of October, 1877, by the Glenwood Cemetery, claiming to be a corporation extablished by act of congress, against Joseph B. Close, William S. Humphreys, Randolph S. Evans, and George Clendenin, praying for a conveyance of the legal title in a tract of land containing 90 acres, situated in the District of Columbia, known as the Glenwood Cemetery; and for an account. The bill was afterwards dismissed by consent as against Humphreys and Evans. The material facts, as shown by the proofs, are as follows: In June, 1852, Humphreys, for the sum of $9,000, bought of Junius J. Boyle the tract of land in controversy, and took from him a deed of it, and immediately set about preparing it for use as a cemetery. He inclosed with a high fence and laid out with drives and walks, and improved and embellished, 30 acres of it, leaving the other 60 acres in their original unimproved condition; and in March, 1853, put Clendenin in charge as superintendent. Humphreys conveyed to Close an undivided half of the premises in April, 1853, and the whole tract in June, 1854. The two deeds were absolute in form, but were, in fact, intended as security: the first for the repayment of $20,000, advanced to Humphreys by Close, for the purpose, as Close knew, of converting the estate into a cemetery; and the second for the repayment of other advances to the amount of $7,000, already made to him by Close, for the same purpose, and of subsequent like advances, of the amount of which there is no evidence but Close's own vague and unsatisfactory testimony, unsupported by books or vouchers; and the parties agreed in writing that if Humphreys should meet his obligations, he should have back one-half of the land. Humphreys thenceforward managed the property, acting for himself and Close, through Clendenin as superintendent, until September, 1859, when, having failed to meet his engagements, he relinquished all his interest in the property to Close, and Close became sole owner, and assumed control of the property, retaining Clendenin as his superintendent to manage the cemetery. On the twenty-seventh of July, 1854, congress passed an act entitled 'An act to incorporate the proprietors of Glen wood Cemetery,' by which 12 persons named, eight of them residents of the District of Columbia, and the other four being Close and William Phelps, (since deceased,) residents of New Jersey, and Humphreys and Evans, residing in New York, were created a corporation by the name of 'The Proprietors of Glenwood Cemetery, in the District of Columbia,' and were empowered 'to purchase and hold not exceeding 100 acres of land in the District of Columbia, north of the limits of the city of Washington; to sell and dispose of such parts of said land as may not be wanted for the purpose of a cemetery, provided that at least 30 contiguous acres shall be forever appropriated and set apart as a cemetery; with authority to said corporation to receive gifts and bequests for the purpose of ornamenting and improving said cemetery;' and it was enacted that the affairs of the corporation should be conducted by a president and three managers, to be 'elected annually by a majority of the votes of the proprietors,' and 'each proprietor entitled to one vote for each share held by him,' and that until the first election the four last-named persons should be managers; that the president and managers should have power, among other things, 'to lay out and ornament the grounds,' 'to lay out and sell or dispose of burial lots,' and 'to make such by-laws, rules, and regulations as they may deem proper for conducting the affairs of the corporation, for the government of lot-holders and visitors to the cemetery, and for the transfer of stock and the evidence thereof;' that 'the capital stock of said company shall be represented by 2,000 shares of $50 each, divided among the proprietors according to their respective interests, and transferable in such manner as the by-laws may direct;' that 'no streets, lanes, alleys, roads, or canals of any sort shall be opened through the property of said corporation, exclusively used and appropriated to the purpose of a cemetery: provided, that nothing herein contained shall authorize said corporation to obstruct any public road or street or lane or alley now actually opened and used as such;' that any person willfully destroying, injuring, or removing any tomb, monument, gravestone, fence, railig, tree, or plant within the limits of the cemetery, should be considered guilty of a misdemeanor; that 'each of the stockholders in the said company shall be held liable in his or her individual capacity for all the debts and liabilities of the said company, however contracted or incurred;' that 'burial lots in said cemetery shall not be subject to the debts of the lot-holders thereof, and the land of the company dedicated to the purposes of a cemetery shall not be subject to taxation of any kind;' that a certificate, under seal of the corporation, of the ownership of any lot, should have the same effect as a conveyance of real estate; and that 'it may be lawful for congress hereafter to alter, amend, modify, or repeal the foregoing act.' 10 St. 789. On the second of August, 1854, the ceremony of dedicating the cemetery by appropriate religious services and addresses was performed on the spot, in the presence of a number of people. Immediately afterwards a pamphlet was published and generally circulated, containing a copy of the charter, a list of the officers, including Close, Phelps, Humphreys, and Evans, managers; Close, president; Humphreys, treasurer; and Clendenin, superintendent; a full account of the proceedings at the dedication in which the property was spoken of as set apart and consecrated for the burial of the dead, and as 'altogether comprising 90 acres, 30 of which are now fully prepared for interments;' and the by-laws of the cemetery, of which the first was, 'All lots shall be held in pursuance of 'An act to incorporate the proprietors of Glenwood cemetery,' approved July 27, 1854, and shall be used for the purposes of sepulture alone.' Close soon after received a copy of this pamphlet from Humphreys, and from that time to the filing of the bill never objected to the appropriation of the property in the manner appearing thereby. In the course of the next 20 years about 2,000 lots were sold, and each purchaser was given a copy of the pamphlet, and a certificate or deed of his lot, signed by Close, as president, bearing the seal of the company, and having the by-laws printed thereon. The gross receipts from the time of the opening of the cemetery to 1876 were $160,000. No stock was ever issued as provided in the charter. No taxes were ever paid on any part of the 90 acres. At different times from 1871 to 1876 taxes were assessed, or proposed to be assessed, by the municipal authorities upon the 60 acres which had not been improved. But Close and Clendenin, by representing to the assessors and collector that the whole tract had been dedicated to burial purposes in accordance with the charter, and by exhibiting to them the charter and the pamphlet containing the account of the dedication, induced them to recognize the exemption of the whole tract from taxation. On the twenty-eighth of February, 1877, congress passed an act amending the act of the twenty-seventh of July, 1854; changing the name of the corporation to 'The Glenwood Cemetery;' providing that its property and affairs should be under the control of a board of five trustees, any three of whom should be a quorum, to be elected annually, 'three by the proprietors of lots in said cemetery' (each to be 'entitled to one vote for each lot owned by him in good faith, upon which a burial has been made') 'and two by the original proprietors,' and to have authority to fill temporary vacancies in the board; that these trustees should so conduct the affairs of the cemetery 'as to secure the equitable rights of each and every person having in any way any vested interest in the said cemetery; and the cemetery shall be amenable and subject to the jurisdiction of the equity courts of the District of Columbia for any disregard of the rights or interests of any person whatsoever;' that 'the words 'the proprietors,' where they occur in the original act of incorporation hereby amended, shall be interpreted and construed to mean and shall signify the proprietors of lots in said cemetery, and which is hereby now declared by this amendment to be the true intent and meaning of said words;' and that, of the gross receipts arising 'from the sale of lots hereafter sold of the ground now dedicated to burial purposes,' one-fourth should be annually paid by the trustees to the original proprietors, and the rest be devoted to the improvement and maintenance of the cemetery. 19 St. 266. Pursuant to this act, the owners of lots chose three trustees, who, on the refusal of Close to recognize the corporation as existing, or to appoint two other trustees, filled up the vacancies in the board, and, on the refusal of Close, and of Clendenin as his agent, to deliver up possession to them, filed this bill to compel a conveyance of the legal title and a delivery of possession of the whole tract, and an account of the proceeds of any lots sold since the organization under the act of 1877. The defenses set up by Close and Clendenin, in their answers and at the argument, are that there never was any acceptance of the act of 1854, or formal organization of the corporation under it, but the property remained the private property of Close, except such lots as had been sold, for which he was ready to give a legal title to the holders; that the act of 1877 was unconstitutional and void, as depriving him of his property without adequate compensation; and that no part of the 60 acres not inclosed was ever dedicated to the purposes of a cemetery in such a way as to interfere with his absolute control over it. After Close and Clendenin had put in their answers, Charles Borcherling filed a petition to be admitted as a defendant to the bill, alleging that he had been appointed receiver under a decree for alimony rendered in a suit for divorce brought against Close by his wife in the court of chancery of New Jersey, and that, in obedience to an order of that court, Close had executed to him, as such receiver, an assignment of all his personal estate, the rents and profits of his real estate, and 'especially the capital stock of the Glenwood Cemetery in Washington, in the District of Columbia, and all profits, dividends, or other moneys to me coming therefrom, or from any office thereof.' This petition of Borcherling was granted, and he filed an answer to the original bill, setting up these facts. He also filed a cross-bill, praying that Close convey the title in the cemetery to the corporation, and that the corporation issue and deliver to Borcherling, as receiver as aforesaid, stock to the amount of $100,000. On motion of Close and Clendenin, the court afterwards ordered the cross-bill of Borcherling to be stricken from the files, with leave to him to apply for leave to file a cross-bill. He never applied for such leave. But the corporation filed a general replication to the answers of Close, Clendenin, and Borcherling, proofs were taken, and the case was heard and decided upon the merits. By the final decree of the court below, it was adjudged that Close convey the whole tract of 90 acres to the plaintiff corporation in fee-simple; that Close and Clendenin deliver to the plaintiff all books, plans, records, and personal property belonging to or used in connection with its business, and be perpetually enjoined from interfering with or obstructing the plaintiff in the possession and management of the cemetery, and the court being further of opinion that Close was entitled to be compensated for the transfer of his title in the land as the original proprietor thereof, and that the provision made for this object by the act of congress of 1877 was an equitable adjustment of the rights of Close, and a reasonable compensation for his title and interest in the property, both in amount and in mode of payment, regard being had to the needs of the cemetery, it was further adjudged that the plaintiff annually hereafter account for and pay to him or his assigns one-fourth of the gross receipts from sales to be made of lots in the cemetery; and that an account be taken of his receipts from the cemetery since the act of 1877 took effect, and that he be charged in favor of the plaintiff with all sums over and above one-fourth of the gross receipts from sales of lots, which had been applied to his own use and not properly disbursed on account of the cemetery, and that he pay the costs of suit; and that this decree be without prejudice to the claims of Borcherling, as receiver as aforesaid. From that decree appeals have been taken and argued by Close and Clendenin, and by Borcherling. The appeal of Borcherling may be briefly disposed of. The order striking his cross-bill from the files reserved leave to him to apply to the court for leave to file a cross-bill. He never made any such application, but, after replication filed to the answers of himself and of the other defendants, suffered proofs to be taken upon the issues so made up, and the case to proceed to a final decree; and the final decree is expressed to be made without prejudice to his rights as receiver. Under these circumstances, there is nothing in the proceedings of the court below prejudicial to those rights, or which entitles him to a reversal of the final decree and to a reopening of the whole case. Upon the merits of the case, as presented by the appeal of Close and Clendenin, it will be convenient to consider first the question whether, assuming that the charter granted by congress in 1854 must be held to have been duly accepted by the corporation, and the corporation to have been legally organized under it, the act of 1877 is within the power of alteration, amendment, and repeal reserved to congress in the original charter. The terms of that charter show that it was not intended to create a mere land company, for the exclusive benefit of the original associates and their successors holding shares in the stock of the corporation; but that the ultimate and principal object was to establish and permanently maintain a cemetery for the burial of the dead, which, if not a strictly charitable use, is in some aspects a pious and public use, and was evidently so regarded by congress. If the corporation were to be exclusively a private business corporation, created for the sole benefit of the original associates and their successors as holders of shares, congress would hardly have inserted in the charter the provision authorizing the corporation to receive gifts and bequests for the purpose of ornamenting and improving the cemetery, or the provisions exempting the property from all taxation, and prohibiting the future laying out of any public ways through it. At first, indeed, the whole immediate benefit derived from the property would be that resulting to the shareholders from the sale of lots, by way of dividend out of so much of the moneys received as might not be needed to be expended or reserved for the laying out, ornamenting, and maintenance of the cemetery. But, as fast as lots are sold, the property and interest of those purchasing and holding the land for its ultimate use of the permanent burial of the dead would increase, and the interest of the original associates would diminish. The profits to be derived from the sale of the land would cease, as to each parcel, as soon as it was sold for a burial lot. When the lots were all sold, the pecuniary interest of the associates or shareholders would disappear, but the duty to keep up the cemetery would remain, and the owners of lots would be the only persons having a peculiar interest in keeping it up. The corporation, in short, was established to secure and maintain, not merely the right of sale, but the right of burial, and was the representative, not only of the original proprietors of the land, but also of the subsequent purchasers of lots therein. At the beginning, before any lots were sold, the owners of shares, divided among the proprietors according to their respective interests, would necessarily be the only persons concerned, or who could elect the officers of the corporation and managers of the cemetery. But with the gradual change of interest, resulting from the sale of lots, it was in full accord with the provisions of the charter, and best tended to carry out the main purpose of permanently maintaining a cemetery for the burial of the dead, that the holders of lots should take part in the election and so have a voice in the management. After the cemetery had been laid out, improved, and used for the burial of the dead for more than 20 years, and 2,000 burial lots had been sold, it was a reasonable exercise of the reserved power of congress to authorize the owners in good faith of lots upon which burials had been made, to elect a majority of the trustees, in whom should be vested the control and management of the cemetery, with a due regard to the equitable rights of all persons having any vested interest therein; and to provide that a portion only of the receipts arising from the future sale of lots should be paid to the original proprietors, and the rest be devoted to the improvement and maintenance of the cemetery. Every legislative act is to be presumed to be a constitutional exercise of legislative power until the contrary is clearly established; and there is nothing in the record before us to show that the proportion of one-fourth of the gross receipts from future sales of lots, which is fixed by the act of congress of 1877 and by the decree of the court below, as a compensation for the title and interest of the original proprietors and associates, is not a reasonable one. It follows that the act of congress of 1877 must be deemed constitutional and valid, within the principle affirmed by this court in the case of The Holyoke Dam, that a power reserved to the legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right. Com'rs on Inland Fisheries v. Holyoke Water-power Co. 104 Mass. 446, 451; Holyoke Co. v. Lyman, 15 Wall. 500, 522. In the exercise of such a power by the United States, as was observed by the chief justice in delivering the opinion of the court in the Sinking Fund Cases, 'it is not only their right, but their duty, as sovereign, to see to it that the current stockholders do not, in the administration of the affairs of the corporation, appropriate to their own use that which in equity belongs to others.' 99 U. S. 700, 725. The question, then, recurs whether, as against Close, the corporation must be held to have been duly organized under the act of congress of 1854. Upon this question the facts are these: Close knew that the act of incorporation had been granted by congress, in which he was named as one of the original associates; that the cemetery had been dedicated and set apart by public religious ceremonies for the burial of the dead; that a pamphlet had been published, containing a full account of those ceremonies, the names of a full board of officers, including himself as president and one of the managers, and Clendenin as superintendent, and a code of by-laws, by the very first of which all the lots were to be held in pursuance of the act of incorporation and to be used for the purposes of sepulture alone. With full knowledge of these facts, Close, for more than 20 years, exercised through Clendenin the sole management of the cemetery, and issued deeds and certificates of burial lots to the number of more than 2,000, bearing the corporate seal, and his own signature as president of the corporation, and having the by-laws printed on them. Being himself the owner of the whole land, he dealt with it in all respects as if it belonged to the corporation, and so represented it to the purchasers of lots. As no other person owned any part of the land or was entitled to a share in the corporation, the fact that no stock has been issued or divided is immaterial. One who deals with a corporation as existing in fact, is estopped to deny as against the corporation that it has been legally organized. And in a court of equity, at least, the owner of land, who stands by and sees it conveyed as belonging to another, cannot afterwards set up his own title against the grantee. The present case is yet stronger. Close did not merely deal with the corporation, and permit the corporation to convey parts of his land to purchasers of lots. But he himself assumed to act as the corporation, and himself made the conveyance, and the accompanying representations, to every purchaser. By his acts he represented to the purchasers of lots that the cemetery had been created and the land was owned by the corporation under the charter of 1854, and, as a necessary consequence, that the corporation, and all rights derived from it, were subject to the provisions of that charter, including the reservation to congress of the power of alteration, amendment, or repeal. It is upon these representations that the purchasers of lots have acquired their title and have parted with their money; and the corporation, whose existence he, at least, cannot deny, has the right and the duty, as the representative and in behalf of all the purchasers of lots, to enforce against him the obligation which he has thereby assumed. He holds the fee of the cemetery in trust for the corporation, and is entitled to nothing, as against the corporation and those whom it represents, but such compensation for his interest as original proprietor or stockholder as is consistent with the state of things which he has represented to exist. It is argued by the learned counsel for the appellants that the estoppel and the obligation of Close cannot extend beyond the 30 acres which had been actually laid out. This argument appears to us to be fully met and answered in the able and thorough opinion of the court below, delivered by Mr. Justice Cox, who says: 'It was held out to the lot-holders, not only that the ground immediately available for burial should remain set apart for that object, but that the cemetery should be forever under the protection of a perpetual corporation, charged with the duty of laying out and ornamenting the grounds, capable of receiving gifts and bequests, and empowered to make by-laws for the regulation of the affairs of the corporation; and the whole property was described as dedicated to the purposes of the cemetery, not necessarily that the whole should be laid out into lots, but that it should all belong to the institution and be available for its general objects. This was not to be a mere grave-yard in which each lot-holder acquired a piece of ground in which to bury his dead, and at the same time become chargeable with the sole care of his particular lot; but the lot-holders themselves became subject to by-laws and regulations having reference to the institution as an entirety, and the perpetual preservation of the cemetery as an ornamental and convenient place for interment, and for resort by the relatives of the dead.' Glenwood Cemetery v. Close, 7 Washington Law Rep. 214, 218. Decree affirmed.

107.US.162

The jury may be controlled in their determination of a question by a peremptory instruction, if the testimony is of such a conclusive character as would compel the court, in the exercise of a sound legal discretion, to set aside a verdict if one were returned in opposition to such testimony.

The bonds in suit are of the same issue as those involved in Township of Montclair v. Ramsdell, just decided, [ante, 391.] The cases do not materially differ, except in the circumstances under which the respective plaintiffs became the holders of the township bonds. In this, as in the other case, the township was denied the opportunity to establish certain facts which, it claimed, tended to show fraud or illegality in the inception of the bonds, apart from any question of legislative authority. If it be conceded that the evidence offered and excluded was admissible under the plea of non est factum—which was the only plea to the special counts on the bonds and coupons—and, also, that such evidence tended to show fraud or illegality in their inception, still there was no error in the ruling of the court. For if, as counsel contend, proof of such fraud or illegality WOULD SHIFT THE BURDEN OF PROOF UPON PLAintiff to show how and upon what consideration he came by the bonds, that exigency was met by proof that plaintiff was, in every sense, a bona fide holder for value. That he purchased the bonds for value and without notice of any fraud or illegality upon the part of the commissioners in the exercise of the power conferred by the statute, was so clearly shown that the court below was justified in saying to the jury—as, in effect, it did—that the evidence left no room to dispute the fact. The action of the court, in that respect, was consistent with the rule frequently announced that the jury may be controlled in their determination of a question by a peremptory instruction, if the testimony is of such a conclusive character as would compel the court, in the exercise of a sound legal discretion, to set aside a verdict if one were returned in opposition to such testimony. Phoenix Mut. Life Ins. Co. v. Doster, 1 SUP. CT. REP. 18; Hendricks v. Lindsay, etc., 93 U. S. 146. All other questions raised by the assignments of error, and which are deemed of any moment, are concluded by the decision in the Ramsdell Case. The judgment is affirmed.

107.US.478

1. By a trust deed, duly recorded, land was conveyed to the trustees in fee, and they were authorized to release it to the grantor upon payment of the negotiable promissory note thereby secured. Before that note was paid or payable, and after it had been negotiated to an indorsee in good faith for full value, a deed of release, reciting that it had been paid, was made to the grantor by the trustees and by the payee of the note, and recorded; and the grantor executed and recorded a like trust deed to secure the payment of a new note for money lent to him by another person, who had no actual notice that the first note had been negotiated and was unpaid, and who, before he would make the loan, required and was furnished with a conveyancer's abstract of title, showing that the three deeds were recorded and the land free from incumbrance. Held, that the legal title was in the trustee, under the second trust deed, and that the note thereby secured was entitled to priority of payment out of the land. 2. Upon a bill in equity by the holder of a debt secured by deed of trust, to set aside a release negligently executed by the trustee to the grantor, the complainant cannot have a decree for the payment of his debt by the trustee personally.

This is a bill in equity, filed by Benjamin L. Jackson and others, partners under the name of Jackson, Brother & Co., and heard on the pleadings and proofs, by which the material facts appear to be as follows: On the first of January, 1875, Edwin J. Sweet and his wife purchased and took a deed from Augustus Davis of a house and land in Washington, and executed and acknowledged a trust deed thereof, in which they recited that they were indebted to Augustus Davis in the sum of $8,000 for deferred payments of the purchase money, for which they had given him their four promissory notes of the same date and payable to his order,—three for the sum of $1,833.33 each, and payable in one, two, and three years respectively, and one for the sum of $2,500, payable in three years, and all bearing interest at 8 per cent.,—and by which deed, in order to secure the payment of those notes as they matured, they conveyed the land to Charles T. Davis and William Stickney, and the survivor of them, their and his heirs and assigns, in trust to permit the grantors to occupy the premises until default in payment of principal or interest of the notes; and upon the full payment of all the notes and interest, and all proper costs, charges, and commissions, to release and convey the premises to Mrs. Sweet, her heirs and assigns, with a power of sale upon default of payment, and a provision that the purchaser at the sale should not be bound to see to the application of the purchase money. That deed of trust was recorded on the fourteenth of January, 1875. The notes secured by that deed were indorsed by Augustus Davis and Charles T. Davis, had on the margin the printed words, 'Secured by deed of trust,' and were, soon after their date, transferred by the indorsers for full value and before maturity to the plaintiffs, and have since been held by them, except the one due at the end of the first year, which was paid by the indorsers. Charles T. Davis was a son and a partner of Augustus Davis, and was a broker and real estate agent. On the fifteenth of September, 1876, before any of the other notes fell due, and without the plaintiffs' knowledge, the trustees, Davis and Stickney, executed a deed of release of the land to Mrs. Sweet, reciting that the debt secured by the trust deed had been fully paid and discharged, as appeared by the signature of Augustus Davis, who joined in the execution of the release. At or before the same time, Sweet and wife employed Charles T. Davis to make some arrangement by which they could take up those notes and give others running for a longer time. He went to Samuel T. Williams, and offered him the land unincumbered, as security for a loan of $5,000, payable in four years, and bearing 9 per cent. interest; and Williams agreed to make the loan if satisfied by a conveyancer's abstract of title that the land was free of all incumbrance, but not otherwise. On the twenty-seventh of September, 1876, a deed of trust, containing provisions like those in the first deed of trust, was executed by Sweet and wife to Robert K. Elliott and Charles T. Davis, to secure the payment of a note for $5,000 in four years to Williams, with interest at the rate of 9 per cent. On the twenty-eighth of September, the deed of release and the second deed of trust were recorded. Charles T. Davis furnished Williams with certificates of a conveyancer that he had examined the title on the fourteenth of September and found it good, subject to the first trust deed, and again on the 28th, when the only changes were the release and the second deed of trust; and Williams thereupon gave to Davis his check, payable to Davis' order, for $5,000, (which Davis applied to his own use,) and received from him the note of Sweet and wife for the same amount, and the trust deed to secure its payment. Neither Williams nor Sweet and wife then knew that, at the time of the execution of the release, Augustus Davis was not the holder of the notes secured by the first trust deed. On the twenty-ninth of September, Sweet and wife executed another trust deed to Charles T. Davis to secure the payment of six promissory notes to Augustus Davis for $530.26 each, payable at intervals of six months from their date. the note to Williams not having been paid, the trustees, Elliot and Davis, sold the land by auction for the sum of $6,325 to Eli S. Blackwood, who paid them $1,325 in cash, (which was applied to the payment of the interest and of other charges,) and gave them his note for $5,000, secured by a trust deed of the land. The bill, which was against Williams, Sweet and wife, Augustus Davis, and Blackwood in their own right, against Charles T. Davis and Stickney in their own right and as trustees, and against Elliott as trustee only, prayed that the release by Stickney and Charles T. Davis, as well as all the subsequent conveyances, might be declared void as against the first trust deed, and the trust created by that deed be declared to have priority over all subsequent incumbrances; that Charles T. Davis be removed from his trust and a new trustee be appointed in his stead; that the land be sold and the proceeds applied, under order of the court, to the payment of the notes held by the plaintiffs and of any other lawful claims; and for an injunction, a discovery, an account, and further relief. The judge before whom the case was first heard made a decree declining to set aside the release or to declare that the first deed of trust had priority over the second; adjudging that the first deed of trust was fraudulently and negligently released by Augustus Davis and Charles T. Davis, and wrongfully and negligently released by Stickney, and therefore ordering that the plaintiffs recover against Augustus Davis, Charles T. Davis, Stickney, and Sweet and wife, the amount due on the notes held by them, with interest; declaring that the note for $5,000, held by Williams, was the first charge on the land; and ordering the land to be sold, and the proceeds to be distributed in paying off the incumbrances in the order thus established. The court at general term reversed those parts of the decree which declined to set aside the release, and which declared that Williams was entitled to priority; and also that part which adjudged that the plaintiffs recover against Stickney the amount of their debt; affirmed it in other respects; and ordered the proceeds to be first applied to the payment of the plaintiffs' debt. Williams appealed from so much of this decree as gave priority to the plaintiffs' claim; and the plaintiffs appealed from so much as reversed the decree against Stickney. By the statutes regulating the conveyance of real estate in the District of Columbia, all deeds of trust and mortgages, duly acknowledged, take effect and are valid, as to all subsequent purchasers for valuable consideration without notice, and as to all creditors, from the time of their delivery to the recorder for record; whereas other deeds, covenants, and agreements take effect and are valid, as to all persons, from the time of their acknowledgment, if delivered for record within six months after their execution. Any title-bond or other written contract in relation to land may be acknowledged and recorded in the same manner as deeds of conveyance; and the acknowledgment duly certified, and the delivery for record, of such bond or contract, shall be taken and held to be notice of its existence to all subsequent purchasers. Rev. St. D. D. §§ 446, 447, 449. The first deed of trust from Sweet and wife did not give the trustees merely a power to release the land on payment of the notes secured thereby, and to sell on default of payment; but it vested the legal title in them. A release of the land before payment of the notes would be a breach of their trust, and would be unavailing in equity to any one who had knowledge of that breach. Ins. Co. v. Eldredge, 102 U. S. 454. But it would pass the legal title. Taylor v. King, 6 Munf. 358; Canoy v. Troutman, 7 Ired. 155. The legal title in the land, being in the trustees under the first deed of trust, passed by their deed of release to Mrs. Sweet, and from her by the second deed of trust to the trustees for Williams. The first deed of trust having been made to the trustees therein named for the benefit of Augustus Davis, and to secure the payment of the notes from the grantors to him, and the plaintiffs, upon the transfer and indorsement to them of those notes, having taken no precaution to obtain and put on record an assignment of his rights in such form as would be notice to all the world, the recorded deed of release, executed by him as well as by the trustees, reciting that the notes had been paid, and conveying the legal title, bound the plaintiffs, as well as himself, in favor of any one acting upon the faith of the record and ignorant of the real state of facts. If the plaintiffs wished to affect subsequent purchasers with notice of their rights, they should have obtained a new conveyance or agreement, duly acknowledged and recorded, in the form either of a deed from the original grantors, or of a declaration of trust from the trustees, or of an assignment from Augustus Davis of his equitable interest in the land as security for the payment of the notes. The record not showing that any person other than Augustus Davis had any interest in the notes, or in the land as security for their payment, an innocent subsequent purchaser or incumbrancer had the right to assume that the trustees, in executing the release, had acted in accordance with their duty. Williams is admitted to have had no actual knowledge that the notes secured by the first trust deed were held by the plaintiffs, or that they were unpaid. The knowledge of those facts by Charles T. Davis, through whom Williams made the loan, does not bind him, because upon the evidence Charles T. Davis appears not to have been his agent, but the agent of Sweet and wife. Williams took every reasonable precaution that could have been expected of a prudent man, before advancing his money to Charles T. Davis for Sweet and wife. He declined to lend his money until after he had been furnished with a conveyancer's abstract of title, showing that the deed of release from the trustees under the first deed of trust, and from the original holder of the notes secured thereby, as well as the second deed of trust to secure the repayment of the money lent by Williams, had been recorded, and that the land was not subject to any incumbrance prior to the second deed of trust. It was suggested in argument that as the first deed of trust showed that the notes secured thereby were negotiable and were not yet payable, and that the land was not intended to be released from this trust until all the notes were paid, Williams was negligent in not making further inquiry into the fact whether they were still unpaid. But of whom should be have made inquiry? The trustees under the first deed and the original holder of the notes secured thereby having expressly asserted under their own hands and seals that the notes had been paid, and Sweet and wife having apparently concurred in the assertion by accepting the deed of release and putting it on record, he certainly was not bound to inquire of any of them as to the truth of that fact; and there was no other person to whom he could apply for information, for he did not know that the notes had ever been negotiated, and he had no reason to suppose that they had not been canceled and destroyed. To charge Williams with constructive notice of the fact that the notes had not been paid, in the absence of any proof of knowledge, fraud, or gross or willful negligence on his part, would be inconsistennt with the purpose of the registry laws, with the settled principles of equity, and with the convenient transaction of business. Hine v. Dodd, 2 Atk. 275; Jones v. Smith, 1 Hare, 43, and 1 Phill. 244; Agra Bank v. Barry, Irish R. 6 Eq. 128, and L. R. 7 H. L. 135; Wilson v. Wall, 6 Wall. 83; Norman v. Towne, 130 Mass. 52. The equity of Williams being at least equal with that of the plaintiffs, the legal title held for Williams must prevail, and he is entitled to priority. The decree appealed from is in this respect erroneous, and must be reversed. But that decree, so far as it refuses relief against Stickney personally, is right. The main purpose of the bill is to set aside the deed of release and to satisfy the plaintiffs' debt out of the land. The attempt to charge Stickney with the amount of that debt, by reason of his negligence in executing the release, is wholly inconsistent with this. The one treats the release as void; the other assumes that it is valid. In the one view Stickney is made a party in his capacity of trustee only; in the other, it is sought to charge him personally. The joinder of claims so distinct in character and in relief is unprecedented and inconvenient. Shields v. Barrow, 17 How. 130, 144; Walker v. Powers, 104 U. S. 245. The result is that the decree appealed from must be reversed, and he case remanded with directions to enter a decree in conformity with this opinion, and without prejudice to an action at law or suit in equity against Stickney. Decree reversed. HARLAN, J., did not sit in this case, and took no part in the decision.

107.US.454

I. This court will not re-examine the order of the Circuit Court, refusing to set aside the verdict upon the ground that the jury awarded excessive damages. 2. The same degree of care which a railroad company should take in providing and maintaining its machinery must be observed in selecting and retaining its employds, including telegraphic operators. Ordinary care on its part implies, as between it and its employds, not simply the degree of diligence which is customary among those intrusted with the management of railroad property, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed. It is such care as, in view of the consequences that may result from negligence on the part of employds, is fairly commensurate with the perils or dangers likely to be encountered.

That we are without authority to disturb the judgment upon the ground that the damages are excessive cannot be doubted. Whether the order overruling the motion for new trial, based upon that ground, was erroneous or not, our power is restricted to the determination of questions of law arising upon the record. Railroad Co. v. Fraloff, 100 U. S. 31. We also remark, before entering upon the consideration of the matters properly presented for determination, that it is unnecessary to express any opinion upon the question whether the plaintiff and McHenry were fellow-servants, within the meaning of the general rule that the servant takes the risks of dangers ordinarily attending or incident to the business in which he voluntarily engages for compensation, including the carelessness of his fellow-servants. The plaintiff took no exception to the instructions, which proceeded upon the ground that plaintiff and McHenry were fellow-servants, and that in accepting employment from the company they risked the negligence of each other in the discharge of their respective duties. As no such question can arise upon the present writ of error, we pass to the examination, as well of the instructions to which the defendant excepted, as of those asked by it which the court refused to give. At and before the time of the accident the plaintiff was a brakeman in the service of the defendant. When injured he was at his post of duty on one of the colliding trains. The collision, it is conceded, was the direct result of negligence on the part of McHenry, one of defendant's telegraphic night-operators, who was assigned to duty at a station on the line of its road. He was asleep when one of the trains passed his station, and ignorant, for that reason, that it had passed, he misled the train dispatcher at Fort Wayne as to its locality at a particular hour of the night. In consequence of the erroneous information thus conveyed to the train dispatcher, the trains were brought into collision, whereby the plaintiff lost his leg, and was otherwise seriously and permanently injured. The court charged the jury, in substance,—— That the position of a telegraphic night-operator upon the line of a railroad was one of great responsibility, the lives of passengers and employes on trains depending upon his skill and fidelity; that the company 'was bound to exercise proper and great care to get a person in all respects fit for the place;' that while the defendant did not guaranty to its servants the skill and faithfulness of their fellow-servants, its duty was 'to use all proper diligence in the selection and employment of a night-operator,' and to discharge him, after being employed, if it learned or had reason to believe he was incompetent or negligent; that the plaintiff had a right to suppose that the company 'would use proper diligence in the selection of its telegraphic operators and all other employes whose incapacity or negligence might expose him to dangers, in addition to those which were naturally incident to his employment;' that 'what will amount to proper diligence on the part of the master in the selection of a servant for a particular duty will in part depend on the character and responsibility of that duty;' that 'the same degree of diligence which is required in the employment of a locomotive engineer would not be required in the employment of a fireman;' that 'sound sense and public policy require that railroad companies should not be exempt from liability to their employes for injuries resulting from the incompetency or negligence of co-employes, when, by the exercise of proper diligence, such injuires might be avoided;' that the presumption is that the defendant 'exercised proper diligence in the employment of McHenry, and the burden of proof of showing the contrary is upon the plaintiff;' but 'if from any cause McHenry was not a fit person to be intrusted with the responsible duties of night-operator, and the defendant knew that fact, or by reasonable diligence might have known it, it is liable, for it is admitted that the plaintiff's injuries were the direct result of McHenry's negligence, and there is no proof that the plaintiff contributed to the accident by his own negligence. To each of these instructions the defendant excepted at the time, and in proper form. Among those asked by the company, and for the refusal to give which error is assigned, is one which presents the distinction between the propositions of law presented to the jury for its guidance, and those which the railroad company requested to be given. It is as follows: 'Although McHenry may have been and was guilty of negligence, and that negligence may have caused and did cause the collision which resulted in the injury to the plaintiff complained of, still the plaintiff cannot recover in this action unless it appears from the evidence that the defendant was guilty of negligence, either in the appointment of said McHenry, or in retaining him in his position; and to establish such negligence on the part of the defendant, not only the incompetency of said McHenry must be shown, but it must be shown that defendant failed to exercise ordinary care or diligence to ascertain his qualifications and competency prior to his appointment, or failed to remove him after his incompetency had come to the notice of the defendant, or to some agent or officer of defendant having power to emove said McHenry.' The court modified this instruction by striking out the word 'ordinary' in the only place where it occurred, and inserting in lieu thereof the word 'proper.' Thus modified the instruction was granted; the defendant excepting, at the time, to the refusal to give the instruction in the form presented. The main contention of the defendant is that the jury were instructed that the duty of the company was to observe 'proper and great care,' when they should have been instructed that only ordinary care was required in the appointment and retention of its employes. The former degree of care, it is contended, is matter of opinion upon a question of law, while the latter is a question of fact. And the argument of counsel is that the question of ordinary care is to be determined by the usages or custom which obtain in railroad management, and therefore the proper inquiry is not what ought to be, but what is, the general practice in that business; that what the servant is presumed to know, and to have accepted as the basis of his employment, is the practice or custom as it is when, in hiring his services, he risks the dangers incident to his employment; that the law presumes that master and servant alike contract with reference to that which is equally within their observation and inquiry. Consequently, the company was required, in the selection of plaintiff's fellow-servants, whose negligence might endanger his personal safety, not to observe 'proper and great' (which counsel insists mean peculiar) care, but only that degree of diligence which the general practice and usage of railroad management sanctioned as sufficient. In Hough v. Ry. Co. 100 U. S. 213, it was decided that among the established exceptions to the general rule as to non-liability of the common employer to one employe for the negligence of a co-employe in the same service, is one which arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master; that the master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter; and that it is implied in the contract between the master and the servant that, in selecting physical means and agencies for the conduct of the business, the master shall not be wanting in proper care. It was further said that the obligation of a railroad company, in providing and maintaining, in suitable condition, machinery and apparatus to be used by its employes, is the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered; and that 'its duty in that respect to its employes is discharged when, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care as well in their purchase originally, as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employes.' These observations, as to the degree of care to be exercised by a railroad corporation in providing and maintaining machinery for use by employes, apply with equal force to the appointment and retention of the employes themselves. The discussion in the adjudged cases discloses no serious conflict in the courts as to the general rule, but only as to the words to be used in defining the precise nature and degree of care to be observed by the employer. The decisions, with few exceptions, not important to be mentioned, are to the effect that the corporation must exercise ordinary care. But according to the best-considered adjudications, and upon the clearest grounds of necessity and good faith, ordinary care, in the selection and retention of servants and agents, implies that degree of diligence and precaution which the exigencies of the particular service reasonably require. It is such care as, in view of the consequences that may result from negligence on the part of employes, is fairly commensurate with the perils or dangers likely to be encountered. In substance, though not in words, the jury were so instructed in the present case. That the court did not use the word 'ordinary' in its charge is of no consequence, since the jury were rightly instructed as to the degree of diligence which the company was bound to exercise in the employment of telegraphic night-operators. The court correctly said that that was a position of great responsibility, and, in view of the consequences which might result to employes from the carelessness of telegraphic operators, upon whose reports depended the movement of trains, the defendant was under a duty to exercise 'proper and great care' to select competent persons for that branch of its service. But that there might be no misapprehension as to what was in law such care, as applicable to this case, the court proceeded, in the same connection, to say that the law presumed the exercise by the company of proper diligence, and unless it was affirmatively shown that the incapacity of McHenry when employed, or after his employment and before the collision, was known to it, or by reasonable diligence could have been ascertained, the plaintiff was not entitled to recover. Ordinary care, then,—and the jury were, in effect, so informed,—implies the exercise of reasonable diligence, and reasonable diligence implies, as between the employer and employe, such watchfulness, caution, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful, prudent officers ought to exercise. These observations meet, in part, the suggestion made by counsel, that ordinary care in the employment and retention of railroad employes means only that degree of diligence which is customary, or is sanctioned by the general practice and usage which obtains among those intrusted with the management and control of railroad property and railroad employes. To this view we cannot give our assent. There are general expressions in adjudged cases which apparently sustain the position taken by counsel. But the reasoning upon which those cases are based is not satisfactory, nor, as we think, consistent with that good faith which, at all times, should characterize the intercourse between officers of railroad corporations and their employes. It should not be presumed that the employe sought or accepted service upon the implied understanding that they would exercise less care than that which prudent and humane managers of railroads ought to observe. To charge a brakeman, when entering the service of a railroad company, with knowledge of the degree of care generally or usually observed by agents of railroad corporations in the selection and retention of telegraphic operators along the line traversed by trains of cars,—a branch of the company's service of which he can have little knowledge, and with the employe specially engaged therein he can ordinarily have little intercourse,—is unwarranted by common experience. And to say, as matter of law, that a railroad corporation discharged its obligation to an employe—in respect of the fitness of co-employes whose negligence has caused him to be injured—by exercising, not that degree of care which ought to have been observed, but only such as like corporations are accustomed to observe, would go far towards relieving them of all responsibility whatever for negligence in the selection and retention of incompetent servants. If the general practice of such corporations in the appointment of servants is evidence which a jury may consider in determining whether, in the particular case, the requisite degree of care was observed, such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised. A degree of care ordinarily exercised in such matters may not be due or reasonable or proper care, and therefore not ordinary care, within the meaning of the law. It is further objected to the charge that the court below confounded the degree of care owed as a duty to passengers with the degree of care to be observed in the case of employes. This objection necessarily rests upon the assumption that the instruction as to the exercise of 'proper and great care' in the selection of telegraphic night-operators, accurately stated the degree of diligence to be observed as between the railroad company and passengers. But, clearly, the statement in the charge that the lives both passengers and employes depended upon the skill and fidelity of telegraphic operators employed by the corporation in connection with the movement of its trains, was not for the purpose of indicating, with legal precision, the degree of care upon which passengers could rely in all matters affecting their safety. They, at least, have the right to expect the highest or utmost; not simply a great degree of diligence on the part of passenger carriers and all persons employed by them. The reference, therefore, to passengers, in the instructions alluded to, was not calculated to make the impression that employes could count upon the same degree of care that is required by law towards passengers. Whether, in the selection and retention of telegraphic operators, upon whose capacity and watchfulness largely depends the personal safety of employes on trains, a corporation should or not exercise the same degree of care which must be observed in the case of passengers, it is not necessary now to consider or determine. It is sufficient to say that the corporation was bound, in the appointment and retention of such operators, to observe, as between it and its employes, at least the degree of care indicated in the charge to the jury. Among the instructions asked in behalf of the company, the refusal to give which is the basis of one of the assignments of error, is the following: 'To render the carelessness of said McHenry the carelessness of the defendant, or to render the defendant liable for the same, it is incumbent on the plaintiff to prove that said McHenry was appointed to or retained in his position as telegraph operator with knowledge on the part of the company, or some officer or agent of the company having the power of appointment or removal. that he was incompetent, or that such knowledge might have been obtained by the use of reasonable diligence on the part of the defendant, or of such officer or agent of the defendant.' It is now complained that the refusal to give this instruction was practically a declaration to the jury that the company was responsible for knowledge which it had through any of its agents or through its agents generally; whereas it was liable only for the negligence or omission of those of its agents who were charged with the duty of selecting and controlling its employes and its general business. It is sufficient to say that this point—assuming the instruction in question to be correct—was covered by the last clause of the instruction to which our attention was first directed, and in terms quite as favorable to defendant as it was entitled to under the law. The court, in that instruction, expressly said that to establish the alleged negligence, not only the incompetency must be shown, 'but it must be shown that the defendant failed to exercise proper care or diligence to ascertain his qualifications and competency prior to his appointment, or failed to remove him after his incompetency had come to the notice of defendant, or to some agent or officer of defendant having power to remove said McHenry.' It is not necessary to further extend the discussion of the questions pressed upon our consideration. We are of opinion that the case, in all of its aspects, was fairly placed before the jury in the instructions given by the court. No substantial error of law was committed to the prejudice of the company, and the judgment must be affirmed.

106.US.668

1. The charter of the Kankakee and Illinois River Railroad Company does not limit the operation and effect of the general laws of Illinois, which confer power upon counties to subscribe for stock in railroad companies and issue bonds in payment therefor. 2. The county of Kankakee, in that State, having been organized under the act of April 1, 1851, to provide for township organization, it was the duty of its board of supervisors to discharge the duties enjoined by the general laws upon the county courts in those counties which did not adopt that organization. 3. The bonds issued by that board to pay for the subscription to the stock of that company are valid obligations of the county.

The judgment sought to be reviewed by this writ of error was rendered upon coupons attached to municipal bonds purporting to be issued by the plaintiff in error. The cause was tried by the court without the intervention of a jury, and the facts appear in a bill of exceptions. Each bond of the issue contains a recital that it 'is issued under and pursuant to orders of the board of supervisors of Kankakee county, Illinois, for subscription to the capital stock of the Kankakee & Illinois River Railroad Company, as authorized by virtue of the laws of the state of Illinois authorizing cities and counties to subscribe capital stock to aid and construct railroads; also in accordance with the provisions of an act of said state of Illinois entitled 'An act to fund and provide for paying the railroad debt of counties, townships, cities, and towns,' in force April 16, A. D. 1869.' The bonds were sealed with the county seal, signed by the chairman of the board of supervisors, and countersigned by the clerk of the county court, under the order of the board of supervisors of the county, September 20, 1870. The defendant in error is a bona fide holder for value, having purchased before due in the open market, and without notice of any defense. The defense made, however, and overruled in the court below, is matter of law, and alleges that the bonds are void, in whosesoever hands—First, because the county had no power under the law to issue them at all; and, second, because they were issued by the board of supervisors of the county, who were not representatives of the county empowered to bind it. The charter of the Kankakee & Illinois River Railroad Company, in force April 15, 1869, contained a provision (section 16) that 'to further aid in the construction of said railroad, townships, corporate towns, and cities on or along the line of said railroad may subscribe to the capital stock of said company in sums not exceeding $100,000, respectively:' provided, that such subscription shall have been authorized by a majority of the legal voters at an election called and held for that purpose; in which event, bonds of such township, corporate town, or city should be issued in payment thereof to the railroad company. The same act (section 17) provides that 'nothing herein contained shall prevent counties and cities from taking and voting for subscriptions in the stock of said company, under the general laws of the state.' The general laws of the state referred to include 'An act supplemental to an act entitled 'An act to provide for a general system of railroad incorporations," which took effect November 8, 1849. Laws 1849, (2d Sess.) p. 33. That statute authorizes every county in the state to subscribe for stock in any railroad company, already or thereafter to be organized or incorporated, to the extent of $100,000, and, for the payment of the same, expressly empowers them to borrow money, at a rate of interest not exceeding 10 per cent. per annum, and to pledge the faith of the county for the annual payment of the interest and the ultimate redemption of the principal, or, if the judges of the county court should deem it most advisable, they are authorized to pay for such subscription in bonds of the county, bearing interest not exceeding the rate aforesaid; and the railroad company are also authorized, by a separate section of the act, to receive such bonds in payment of such subscriptions. The contention now is, on the part of the plaintiff in error, that the language quoted from the seventeenth section of the charter of the Kankakee & Illinois River Railroad Company is a reservation merely of the power given by the general laws of the state to counties to subscribe for stock; and as the power to issue bonds in payment therefor is a distinct power, it is not included in the reservation, and therefore ceased to exist on the passage of the act, so far as the present transaction is concerned. But the obvious meaning of the clause relied on to accomplish that result is merely that the general laws of the state authorizing counties to subscribe for stock in that railroad company shall remain unaffected by the charter, which conferred similar power on townships, corporate towns, and cities on the line of the road, and not in any manner to limit the operation and application of those general laws upon the subject. The very purpose of the proviso seems to us to have been to exclude the very conclusion now sought to be drawn from it. Indeed, if the argument be good for anything at all, it results that, under the operation of this reservation, the naked power to subscribe for stock remains in the counties, without any authority, and therefore without any obligation, to pay for it; for, if the power to issue bonds is taken away, so also is the power to pledge the faith of the county for the annual payment of the interest and the ultimate redemption of the principal,—a pledge which means, of course, that payment shall be made out of the revenues of the county derived from taxation. As such a construction of law confesses its own absurdity, it is not necessary to make any formal refutation of it. It is further contended, on the part of the plaintiff in error, that if at the date of these bonds Kankakee county had corporate power to execute and issue them, it could only be done by the county court, according to the terms of the statute conferring that power. Such, in fact, is the language of the general law of 1849, from which the power is derived. But the county of Kankakee, it is admitted, was organized under the act to provide for township organization of April 1, 1851. Laws 1851, p. 35. Under that mode of organization the corporate powers of counties, otherwise exercised by the judges of the county court, are devolved upon a board of supervisors, such as, in the present instance, executed and issued the bonds in question. Article 15, § 4, of that act declares that 'the powers of a county as a body politic can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted.' And article 16, § 4, provides that 'the board of supervisors of each county in this state shall have power at their annual meetings, or at any other meeting, * * * to perform all other duties not inconsistent with this act which may be required of or enjoined on them by any law of this state to the county courts.' In Green v. Wardwell, 17 Ill. 278, it was said that the board of supervisors were the legal successors to the county commissioners' court, as had been previously decided in People v. Thurber, 13 Ill. 554. In Prettyman v. Sup'rs of Tazewell Co. 19 Ill. 406, the very point here raised was decided, and it was held that under the act of 1851 it was the duty of the board of supervisors to act instead of the county court in calling an election to vote on the question, in making the subscription for the stock, and in issuing county bonds in payment therefor. The act of April 1, 1861, 'to reduce the act to provide for township organization and the several acts amendatory thereof into one act, and to amend the same,' (Sess. Laws Ill. 1861, pp. 216-237,) removes all doubt on the subject. It confers (article 14, § 6, cl. 8) upon the board of supervisors authority 'to perform all other duties, not inconsistent with this act, which may be required of or enjoined on them by any law of this state, or which are enjoined upon county courts, when holding terms for the transaction of county business in those counties not adopting township organization.' This act was in force when the bonds sued upon in this case were issued, and they are governed by it. The case of Gaddis v. Richland Co. 92 Ill. 119, relied upon by counsel for plaintiff in error in this point, is not inconsistent with this result in the present case, because that decision is based on the words of the charter of the railroad company conferring the authority to subscribe to its capital stock, which, in the opinion of the court, expressly limited the exercise of the power to the county court. The same comment may be made upon the case of Sup'rs Schuyler Co. v. People, 25 Ill. 181. We find no error in the record, and the judgment of the circuit court is accordingly affirmed.

109.US.258

1. When an administrator duly rappointed in the District of Columbia, is removed, and an administrator de bona non appointed in his place, the administrator de bonis non is not entitled to demand of the administrator so removed the proceeds of a claim against the United States due the intestate and collected by the former administrator ; and cannot maintain suit against a surety of the former administrator to recover damages for failure by the former administrator to pay such sum to the administrator d bonia non. 2. A decree by the Supreme Court of the District of Columbia, directing an administrator who has been removed to pay over to an administrator de bonis non appointed in his place a sum collected -by the former from the United States for a claim due to the intestate, is vid for want of jurisdiction, and furnishes no ground for maintaining an action against a surety of the former administrator for failure of that administrator to comply with the decree.

The first question presented by the record is whether it was competent for the administrator de bonis non of the estate of Ames to sue on the bond of the principal administrator to recover money collected by him from the United States and not paid over or accounted for. It is well settled at common law that 'the title of an administrator de bonis non extends only to the goods and personal estate, such as leases for years, household goods, etc., which remain in specie and were not administered by the first executor or administrator, as also to all debts due and owing to the testator or intestate.' Bac. Abr. tit. 'Executors and Administrators, B 2, 2;' citing Packman's Case, 6 Coke, 19. In illustration of this rule the same authority says: 'It is holden that if an executor receives money in right of the testator, and lays it up by itself and dies intestate, that this money shall go to the administrator de bonis non, being as easily distinguished as part of the testator's effects, as goods in specie. But if A. dies intestate, and his son takes out administration to him and receives part of a debt, being rent arrear to the intestate, and accepts a promissory note for the residue, and then dies intestate, this acceptance of the note is such an alteration of the property as vests it in the son; and therefore, on his death, it shall go to his administrator, and not to the administrator de bonis non.' An administrator de bonis non derives his title from the deceased, and not from the former executor or administrator. To him is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money received by thf former executor or administrator, in his character as such, and kept by itself, will be so regarded; but if mixed with the administrator's own money, it is considered as connected, or as, technically speaking, 'administered.' Beall v. New Mexico, 16 Wall. 535; Wernick's Adm'r v. McMurdo, 5 Rand. 51; Bank of Penn. v. Haldeman, 1 Pen. & W. 161; Kendall v. Lee and Potts v. Smith, 3 Rawle, 361; Bell v. Speight, 11 Humph. 451; Swink's Adm'r v. Snodgrass, 17 Ala. 653; Slaughter v. Froman, 5 T. B. Mon. 19; Gamble v. Hamilton, 7 Mo. 469; Wiggin v. Swett, 6 Metc. 194; State v. Johnson, 7 Blackf. 529. In the case of Beall v. New Mexico, supra, it was said by Mr. Justice BRADLEY, speaking for this court, that 'by the English law, as administered by the ecclesiastical courts, the administrator who is displaced, or the representative of a deceased administrator or executor intestate, are required to account directly to the persons beneficially interested in the estate,—distributees, next of kin, or creditors,—and the accounting may be made or enforced in the probate court, which is the proper court to supervise the conduct of administrators and executors. To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered.' Such was the law of Maryland before the organization of the District to be in the district, unless changed by statute. In the case of Hagthorp v. Hook's Adm'rs, 1 Gill & J. 270, it was held by the court of appeals of Maryland that the authority conferred by the letters of administration de bonis non, issued under the act of 1798, No. 101, c. 14, § 2, was 'to administer all things described in the act of assembly as assets not converted into money, and not distributed, delivered, or retained by the former executor or administrator under the direction of the orphans' court. Such an administrator can only sue for those goods, chattels, and credits which his letters authorize him to administer.' To the same effect are the cases of Sibley v. Williams, 3 Gill & J. 52; Hagthorp v. Neale, 7 Gill & J. 13; and Lemmon v. Hall, 20 Md. 171. In the case of Ennis v. Smith, 14 How. 400, it was said by this court: 'We understand by the laws of Maryland, ad they stood when congress assumed jurisdiction over the District of Columbia, that the property of a deceased person was considered to be administered whenever it was sold or converted into money by the administrator or executor, or in any respect changed from the condition in which the deceased left it. It did not go to the administrator de bonis non unless, on the death of the executor or administrator, it remained in specie or was the same then that it had been when it came to his hands. When the assets have been changed, it is said in Maryland that they have been administered.' But counsel for appellant contend that this rule applies only to the case where an executor or administrator has died, and not to the case where he had been removed; that while the words 'not administered,' in the commission of an administrator de bonis non, still frequently mean not changed in form, yet, as applied to an administrator de bonis non in place of a living administrator, they have come to mean almost invariably not fully and legally administered, and it is said that this distinction appears in the laws of Maryland in force before the organization of the District of Columbia, and continuing in force until the passage of the act of February 20, 1846, 'to enlarge the powers of the several orphans' courts held in and for the District of Columbia.' 9 St. 4. In support of this view we are referred to chapter 101 of the Maryland act of 1798, (2 Kilty, Laws,) by which it is provided, in subchapter 5, § 5, that where letters testamentary have been granted in a case of the discovery of a will, and consequent revocation of letters of administration, it shall be the duty of the administrators to file their accounts and 'to deliver to the executor, on demand, all the goods, chattels, and personal estate in their possession belonging to the deceased,' and on failure their administration bonds shall be liable to be put in suit; and to subchapter 6, § 13, of the same statute, where it is provided that if an executor or administor shall not file his inventory within 30 days, his letters may be revoked and other letters granted, and thereupon the power of such executor or administrator shall cease, and he shall deliver up to the person obtaining such letters all the property of the deceased in his hands. These statutes do not tend to support the distinction relied on by plaintiff in error, for, it is well established by the authorities we have cited, that the goods and chattels, personal estate, and property of the deceased are such only as remain unchanged and in specie. When a debt due the deceased is collected, or a chattel of his estate is sold, the money received becomes the property of the administrator, and he is accountable therefor to those beneficially interested in the estate, and, under the acts referred to, the removed executor or administrator was not bound to turn it over to his successor. It may be conceded that the words 'unadministered assets,' as used in statutes, have sometimes been construed to include the proceeds of assets sold or collected and not accounted for or paid over; and that an administrator de bonis non might call a removed administrator to account for such proceeds. But whatever may have been the rule elsewhere upon this question, we think that the provisions of the act of congress of February 20, 1846, to enlarge the power of the several orphans' courts held in and for the District of Columbia, (9 St. 4,) reproduced in sections 975, 976, 977, 978 of the Revised Statutes relating to the District of Columbia, the common law is not changed, and that the statute applies the same rule to the case of a removed, as has been applied to the case of a deceased, executor or administrator. Section 974 provides that if the security on the bond of an executor or administrator shall become, for any cause, insufficient, the court may order him to give further security. Section 975 provides that if he fails to comply with such order the court may remove him and appoint a new administrator. 'The court shall further have power to order and require any assets or estate of the decedent which may remain unadministered to be delivered to the newly-appointed administrator de bonis non, and to enforce a compliance with such order by fine and attachment, or any other legal process.' We think the meaning of this act is plain. When it was passed the words 'assets or estate of the decedent which remain unadministered,' had a uniform and well-settled meaning in the statute law of Maryland, in force in the District of Columbia, and that meaning, as we have seen, was assets or estate remaining in specie and unchanged in form. The act of 1846 must be construed as using the words in this well-settled signification unless the contrary appears. But there is not a word in the act of 1846 to indicate that congress intended to give any new or different meaning to these words. Independently of this consideration the meaning of the law is not doubtful. It would be an unnatural construction to say that the law required the removed executor or administrator to deliver to his successor assets which had been converted or wasted and which no longer existed, and when there remained only a right to sue for their value. When assets have been turned into money by an executor or administrator, and the money mingled with his own, the assets have ceased to exist as assets or estate of the decedent. It is the assets and estate of the decedent that are to be delivered. The authorities we have referred to all concur in the proposition that where personal property of an estate under administration has been sold or a debt collected, the proceeds are not property of the decedent, but are the individual property of the executor or administrator, and he is liable to an action for not accounting. When assets have been turned into money by an executor or administrator he is bound to account, not for the identical money received, but for an equal amount, and if he fails to account for and pay over this equal amount he is liable in damages, which are measured by the proceeds of the assets so turned into money. The statute surely cannot mean that the removed administrator must 'deliver' damages to his successor. Our conclusion is therefore that the act of February 20, 1846, does not apply a different rule to the case of an administrator de bonis non succeeding a removed administrator from that applied to one succeeding a deceased administrator, and that no action lies on the bond sued on in this case in favor of the administrator de bonis non to recover money collected by Mrs. Ames from the United States on a claim belonging to the estate of the decedent. On the contrary, the defendant as surety on the bond of the removed administrator is liable only at the suit of creditors, distributees and legatees entitled to the funds. The next point taken by the plaintiff in error, that the decree of the justice of the supreme court of the district directing the administratrix to pay over the fund to her successor, was conclusive in this suit. We are of opinion that, in making the order referred to, the supreme court of the district exceeded its jurisdiction, and that its order is for that reason void. Its authority, and its sole authority for making the order, is to be found in section 976, above referred to, of the Revised Statutes relating to the District of Columbia: 'The court shall have further power to order and require any assets or estate of the decedent which may remain unadministered to be delivered to the newly-appointed administrator de bonis non.' It appears from the pleadings in the case that the money ordered to be paid was the proceeds of a debt due the decedent which his administratrix had collected. It was not, therefore, as we have seen, assets or estate of the decedent. It was the property of the removed administrator. The court was therefore without power to direct the payment of the money to the administrator de bonis non. Although a court may have jurisdiction over the parties and the subject-matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization its decree is void. The limitation was well expressed by Mr. Justice SWAYNE in Cornett v. Williams, 20 Wall. 226, when he said: 'The jurisdiction having attached in this case, everything done within the power of that jurisdiction when collaterally questioned is held conclusive of the rights of the parties unless impeached for fraud.' The case of Bigelow v. Forrest, 9 Wall. 339, is in point. It was an action of ejectment. Bigelow, who was defendant in the court below, relied for title on a sale made under a decree of the United States district court rendered in a proceeding for the confiscation of the premises sued for under the act of July 17, 1862. Referring to this decree, Mr. Justice STRONG, speaking for this court, said: 'Doubtless a decree of a court having jurisdiction to make the decree cannot be collaterally impeached, but under the act of congress the district court had no power to order a sale which should confer on the purchaser rights outlasting the life of French Forrest.' And the judgment of the court was, that so much of the decree of the district court as was in excess of its powers was void. In Ex parte Lange, 18 Wall 163, Mr. Justice MILLER, delivering the opinion of the court, after stating that the circuit court had exceeded its authority in pronouncing sentence upon Lange, and that its judgment was therefore void, said: 'It is no answer to this to say that the court had jurisdiction of the person of the prisoner and of the offense under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such case.' In the case of Windsor v. McVeigh, 93 U.S. 274, Mr. Justice FIELD, after a review of the cases bearing upon this subject, announces their result as follows: 'The doctrine invoked by counsel, that when a court has once acquired jurisdiction it has a right to decide every question which arises in the case, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but is subject to many qualifications in its application. It is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to established modes governing the class to which the case belongs, and does not transcend in the extent or character of its judgment the law which is applicable to it.' In this case the statute gave the court power, on the removal of an executor or administrator, to order the assets of the decedent, which might remain unadministered, to be delivered to the administrator de bonis non. The court made an order directing the delivery of the proceeds of administered assets. This was beyond the power conferred by the statute, and not within the jurisdiction of the court The order was therefore void. The result of these views is, that the judgment of the supreme court of the District of Columbia was right, and must be affirmed.

108.US.106

Under Schedule B of § 2504 of the Revised Statutes, which imposes a duty of 30.per cent. ad valorem on "glass bottles or jars filled with articles not otherwise provided for," such duty is chargeable on bottles filled with natural mineral water, although, by § 2505, mineral water, not artificial, is declared to be exempt from duty.

In the opinion of this court delivered at this term in Schmidt v. Badger, [1 SUP. CT. REP. 530,] the foregoing provision as to a duty on 'glass bottles or jars filled with articles not otherwise provided for,' was under consideration. It was held that the duty of 30 per cent. ad valorem was not a duty on the articles contained in the bottles and on the bottles also, and was not a duty on the contents of the bottles, but was a duty merely on the bottles, leaving the articles imported in the bottles to be subject to such duty, if any, as was elsewhere imposed on them. If the contents were ale or beer, the duty on the ale or beer was 35 cents per gallon, and the duty on the bottles was 30 per cent. ad valorem. If the contents were natural mineral water, or mineral water not artificial, the water was free and the duty on the bottles was 30 per cent. ad valorem. The duty on the bottle was independent of the duty on its contents, and was chargeable even though the contents were free. The statute does contain any provision that the bottle shall be free when its contents are free, while it does contain a distinct provision that there shall be a duty of 30 per cent. ad valorem on bottles, not otherwise provided for, filled with articles. The mineral water, not artificial, is free. By Schedule M of section 2504, artificial mineral water is made dutiable thus: 'For each bottle or jug containing not more than one quart, three cents, and, in addition thereto, 25 per centum ad valorem; containing more than one quart, three cents for each additional quart, or fractional part thereof, and, in addition thereto, 25 per centum ad valorem.' Thus, as to artificial mineral water, the water and the bottles containing it are both charged with duty, while as to natural mineral water it is free, and the bottles containing it are dutiable. By section 13 of the act of June 30, 1864, (13 St. at Large,) 214, the provision as to a duty 'on mineral or medicinal waters, or waters from springs impregnated with minerals,' was as follows: 'For each bottle or jug containing not more than one quart, three cents, and, in addition thereto, 25 per centum ad valorem; containing more than one quart, three cents for each additional quart, or fractional part thereof, and, in addition thereto, 25 per centum ad valorem.' By section 5 of the act of June 6, 1872, (17 St. at Large, 236,) mineral waters, not artificial, were made free on and after August 1, 1872. The act of 1872 (section 46) repealed all prior inconsistent provisions. From this it is argued that after the act of 1864 was passed, prior provisions, which might have embraced mineral water bottles, were annulled, and that, as the act of 1872 repealed the provisions of the act of 1864 as to such bottles, and made mineral waters, not artificial, free, there was no law in force imposing a duty on the bottles containing such free waters. The answer to this view is that the duty imposed by the act of 1864 was a duty on the article composed of bottle and water, the specific duty and the ad valorem duty being each of them a duty on the bottle and the water considered as one article. When the water was made free, the whole provision as to a duty on the aggregated bottle and water disappeared, leaving existing applicable general provisions to apply to the bottle. The provisions so existing after the act of 1872 took effect were those found in the acts of 1861 and 1864, and transferred into Schedule B of section 2504 of the Revised Statutes, and applied in this case. They were in force as express enactments when the importation in this case was made. Schmidt v. Badger, ubi supra. The judgment of the circuit court is reversed, and the case is remanded to that court, with directions to grant a new trial.

109.US.371

1. The liability created by a provision in a general act of the State bf New York for the formation of corporations, that all the stockholders of every company incorporated under it shall be severally individually liable to creditors of the company until the whole amount of the capital stock shall be paid in and certified, is in contract, and not a penalty; and can be enforced by an action sounding in contract against a stockholder found in another State. 2. The courts of New York having held that a liability of a stockholder to creditors arising under one of its general statutes for forming corporations was in contract, when the attempt was made to enforce it in New York, this court follows that interpretation in a suit to enforce such a liability in another State. 3. The liability of a stockholder to a creditor under the 10th section of the general act of the State of New York for forming corporations for manufacturing purposes is a liability in contract, which may be enforced by an action at law. It is not necessary to resort to equity.

The only question arising upon the record is whether the declaration presents a cause which entitles the plaintiffs to recover in this action. This was the question considered by the court below, and upon what it deemed the insufficiency of that declaration its judgment was based. The sufficiency of the pleas and rejoinder were not considered, for, if the declaration was bad, the question whether the pleadings of the defendant were good was an immaterial one. If the pleas and rejoinder of the defendant had been adjudged good, that would not have been a final judgment to which a writ of error would lie, but the plaintiffs would have had leave to reply and surrejoin. We are therefore limited to the consideration of the sufficiency of the declaration. The liability which this suit was brought to enforce arises, as the plaintiffs contend, on the tenth section of the act mentioned in the declaration, namely, the act of the legislature of New York passed February 17, 1848, entitled 'An act to authorize the formation of corporations for manufacturing, etc., purposes.' The tenth section of the act, and the eleventh and twenty-fourth, which also have reference to the liability of stockholders of the company, were as follows: 'Sec. 10. All the stockholders of every company incorporated under this act shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof shall have been made and recorded as prescribed in the following section: 'Sec. 11. The president and a majority of the trustees, within thirty days after the payment of the last installment of the capital stock so fixed and limited by the company, shall make a certificate stating the amount of the capital so fixed and paid in, which certificate shall be signed and sworn to by the president and a majority of the trustees; and they shall, within the said thirty days, record the same in the office of the county clerk of the county wherein the business of said company is carried on. 'Sec. 24. No stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act, which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due; and no suit shall be brought against any stockholder * * * until an execution against the company shall have been returned unsatisfied in whole or in part.' Section 12 of the act will also throw some light on the present controversy. It provided that within 20 days from January 1st in every year every company organized under the act should make a report, which should be published, which should state the amount of the capital of the company, the proportion paid in, and its existing debts, and which should be signed by the president and a majority of the trustees, and verified by the oath of the president, and filed in the office of the clerk of the county where the business of the company was carried on; and if any of said companies should fail to do so, all the trustees of the company so failing should be jointly and severally liable for its debts then existing. The defendant contended on several grounds that the declaration set out no cause of action on which the suit could be maintained against him. The first ground was that the liability of the stockholders under section 10 of the act under which the company was organized, and which the suit was brought to enforce, was in the nature of a penalty, and could not be enforced in any court sitting beyond the limits of the state by which the law was passed. It is well settled, and is not denied by plaintiff's counsel, that the penal laws of one state can have no operation in another. They are strictly local, and affect nothing more than they can reach. The Antelope, 10 Wheat. 66; Scoville v. Canfield, 14 Johns. 338; Western Transp. Co. v. Kilderhouse, 87 N. Y. 430; Lemmon v. People, 20, N. Y. 562; Henry v. Sargeant, 13 N. H. 321; Story, Confl. Laws, (8th Ed.) § 621. Upon this branch of the case the question for solution is, therefore, whether the individual liability of stockholders provided for by section 10, above quoted, is in the nature of a penalty, or whether it is, as plaintiffs contend, based on a contract between the stockholders and the creditors of the company. We think the liability imposed by section 10 is a liability arising upon contract. The stockholders of the company are by that section made, severally and individually liable within certain limits to the creditors of the company for its debts and contracts. Every one who becomes a member of the company by subscribing to its stock assumes this liability, which continues until the capital stock is all paid up and a certificate of that fact is made, published, and recorded. The fact that the liability ceases when these events take place does not change its nature and make that a penalty which would, without such limitation, be a liability founded on contract. Such has been the construction given to section 10 by the court of appeals of New York. In the case of Wyles v. Suydam, 64 N. Y. 173, that court had under consideration sections 10 and 12 of the act under which the Pensacola Lumber Company was organized. The complaint alleged the liability of the defendant, both as a stockholder under section 10 and as a trustee under section 12. The complaint was demurred to, on the ground that two causes of action were improperly joined. The court sustained the demurrer. In giving the reasons for its judgment it said: 'The cause of action against the defendant as a stockholder consists of the debt and the liability created by statute against stockholders where the stock has not been paid in and a certificate of that fact recorded. In effect the statute in such a case withdraws the protection of the corporation from the stockholders, and regards them liable to the extent of the amount of their stock as copartners. Corning v. McCullough, 1 N. Y. 47. The allegations in the complaint are sufficient to establish a perfect cause of action against the defendant as a stockholder, primarily liable for the debts to the amount of his stock. 'The allegations against the defendants as trustee also constitute a distinct and perfect cause of action, but of an entirely different character. Here the liability is created by statute, and is in the nature of a penalty imposed for neglect of duty in not filing a report showing the situation of the company. The object of the action is the same, viz., the collection of a debt; but the liability and the grounds of it are entirely distinct and unlike. That there are two causes of action in this complaint seems too clear to require much argument. The first cause of action against the defendant as a stockholder is an action on contract. The six-years' statute of limitation applies. 1 N. Y. supra. The defendant is entitled to contribution. But in respect to the action against defendant as trustee, this court held, in Merchants' Bank v Bliss, 35 N. Y. 412, that the three-years' statute of limitations applied under the following provision of the Code: 'An action upon a statute for a penalty or forfeiture when the action is given to the party aggrieved." This decision is upon the precise point of the controversy in this case. It declares that the liability such as that which the plaintiffs in this action seek to enforce is one arising upon contract, and is not in the nature of a penalty. This decision has never been modified or overruled by the court of appeals of New York. We think this is a case where the construction of the state court is entitled to great, if not conclusive, weight with us. It is the settled construction of a law of the state, upon which the rights and liabilities of a large number of its citizens must depend. If the viability of a stockholder under section 10 arises upon contract, the six-years limitation applies to it; if the liability is in the nature of a penalty, the three-years' limitation applies. It is clear that confusion and uncertainty would result should the state and federal courts place different constructions on the section. Such a result ought, if possible, to be avoided. It is true that this decision was made after the defendant had become a stockholder in the Pensacola Lumber Company, but there had been no previous contrary decision. As said by this court in Burgess v. Seligman, 107 U. S. 20, [S. C. 2 SUP. CT. REP. 10,] 'even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt.' If this were a case arising in the state of New York we should therefore follow the construction put upon the statute by the courts of that state. The circumstance that the case comes here from the state of Florida should not leave the statute open to a different construction. It would be an anomaly for this court to put one interpretation on the statute in a case arising in New York and a different interpretation in a case arising in Florida. Our conclusion, therefore, is that this action was not brought to enforce a liability in the nature of a penalty. The right of the plaintiffs to sue upon this liability in any court having jurisdiction of the subject-matter and the parties is therefore clear. Dennick v. Railroad Co. 103 U. S. 11. The next contention of the defendant is that the recovery of a judgment against the company in the state of New York on the debt due the plaintiffs, and the issue of an execution thereon, returned unsatisfied, is a necessary condition to the liability of the defendant; and as the declaration only avers the recovery of a judgment in the state of Florida it is insufficient. It appears from the declaration that before the year allowed by section 24 of the statute for bringing suits against the company on the debts due the plaintiffs had expired, the company had been adjudicated a bankrupt by the district court of the United States for the southern district of New York; that all its property had been sold, and the proceeds thereof were insufficient to pay the costs and expenses of the bankruptcy proceedings. Although it has been held by the court of appeals in the case of the Rocky Mountain Bank v. Bliss, 89 N. Y. 338, that a judgment in a court of the state of New York was necessary to fix the liability of a stockholder under section 10 of the act under consideration, yet the same court, in the case of Shellington v. Howland, 53 N. Y. 371, held that in an action brought to charge a defendant as stockholder in a company organized under the same law, an adjudication in bankruptcy of the company excused a compliance with the condition, which required a suit to be brought against the company within a year after the maturity of the debt, and a judgment to be recovered and an execution to be issued thereon and returned unsatisfied. We see no reason why we should not follow this decision, and it is conclusive of the question under consideration. The object of section 24 was to compel the creditor to exhaust the assets of the company before seeking to enforce the liability of the stockholder. When the declaration shows that this was done, and that a literal performance of the condition would have been vain and fruitless, the performance of the condition may well be held to have been excused. Lastly, it is objected that the declaration sets out a case which should have been prosecuted in equity and not at law. There is no ground for this objection to rest on. In the cases of Pollard v. Bailey, 20 Wall. 520, and Terry v. Tubman, 92 U. S. 156, to which we are referred in its support, the liability of the stockholders was in proportion to the stock held by them. Each stockholder was, therefore, only liable for his proportion of his debts. This proportion could only be ascertained upon an account of the debts and stock, and a pro rata distribution of the indebtedness among the several stockholders. This, the court held, could only be done by suit in equity. But in this case the statute makes every stockholder individually liable for the debts of the company for an amount equal to the amount of his stock. This liability is fixed, and does not depend on the liability of other stockholders. There is no necessity for bringing in other stockholders or creditors. Any creditor who has recovered judgment against the company and sued out an execution thereon, which has been returned unsatisfied, may sue any stockholder, and no other creditor can. Such actions are maintained without objection in the courts of New York under section 10 of the statute relied on this case. Shellington v. Howland, supra; Weeks v. Suydam, 64 N. Y. 173; Handy v. Draper, 89 N. Y. 334; Rocky Mountain Nat. Bank v. Bliss, Id. 338. We have considered all the objections made to the declaration. In our opinion none of them are well founded. Our conclusion is, therefore, that the declaration was sufficient, and it follows that the judgment of the circuit court declaring it insufficient must be reversed, and the cause remanded for further proceedings in conformity with this opinion.

109.US.103

In a serious conflict of testimony, a bill in equity may be dismissed on the ground that the complainant fails to establish the facts on which he claims relief.

Counsel for appellant states the theory of the bill to be that Campbell was not the bona fide purchaser of the lots described, or of either of them, although he holds them by conveyances absolute upon their face; that he was only the broker of Burgess; and that the conveyances were made to him in that capacity, for the purpose of enabling him to raise money upon them for the use of Burgess, less reasonable charges for any services in that behalf rendered. The bill was dismissed by the court below in special term, and that order was affirmed in general term. The record discloses a serious conflict in the testimony of witnesses, and the court below might well have dismissed the bill upon the sole ground that the complainant had failed to establish the facts upon which he based his claim for relief, and which must have been established lished before any relief could be granted. The decree must, therefore, be affirmed. It is so ordered.

107.US.251

1. Where the holder of shares of stock in a national bank, who is possessed of information showing that there is good ground to apprehend the failure of the bank, colludes with an irresponsible person, with the design of substituting the latter in his place, and thus escaping the individual liability imposed by the provisions of sect. 12 of the act of June 3, 1864, c. 106, and transfers his shares to such person, the transaction is a fraud on the creditors of the bank, and the liability of the transferrer to them is not thereby affected. 2. A bill in equity filed by the receiver of the bank against the transferrer and transferee to enforce such liability will le where it is for discovery as well as relief, the transfer being good between the parties, and only voidable at the election of the complainant. 3. A letter of the Comptroller of the Currency, addressed to the receiver, directing him to bring suit to enforce the personal liability of every person owning stock at the time the bank suspended, is sufficient evidence that the decision of the Comptroller touching such personal liability preceded the institution of the suit. The liability bears interest from the date of the letter. 4. The decree below, dismissing the bill, was entered after a new receiver had been appointed. An appeal to this court was taken in the name of the old receiver, as the complainant, the new receiver becoming a surety in the appeal bond. In this court the new receiver was, on his motion, substituted as the complainant and appellant, without prejudice to the proceedings already had; and the motion of the appellees to dismiss the appeal was denied.

George E. Bowden, as receiver of the First National Bank of Norfolk, Virginia, brought this suit in equity against Jacob C. Johnson and Mrs. B. Valentine, alleging, in the bill, that Johnson, owning 130 shares of the capital stock of the bank, of $100 each, in order to exonerate himself from liability to the creditors of the bank, transferred said shares to Mrs. B. Valentine, on the books of the bank; that the transfer was made without legal consideration, and with a view to such exoneration; that Mrs. B. Valentine is, and was known by Johnson, at the time of the transfer, to be, utterly insolvent; that the transfer was made with a view of defrauding the creditors of the bank, and therefore was and is void; and that the plaintiff had been appointed, by the comptroller of the currency, receiver of the bank, and had been directed by said comptroller to proceed to enforce the personal liability of all persons owning the capital stock of the bank on the twenty-sixth day of May, 1874, the day on which the bank failed to redeem one of its circulating notes, and was in default in the payment of its circulating notes generally. The bill alleges that Johnson visited Norfolk for the purpose of examining into the condition of the affairs of the bank, and, becoming satisfied from such examination, and from other information in relation to the bank, that its affairs were in a critical condition, as in fact they were, and that a suspension of the bank was inevitable, returned to New York and immediately thereafter made said transfer. The prayer of the bill is that Johnson and Mrs. B. Valentine answer it on oath; that the transfer of the stock be set aside; and that Johnson be decreed to pay to the plaintiff, as such receiver, the par value of the 130 shares. The joint answer of the defendants admits that Johnson became the owner of the 130 shares in 1869. It avers that Johnson visited Norfolk in November, 1873, but not for the purpose of examining into the condition and affairs of the bank. It denied that Johnson, on said visit, became satisfied that the affairs of the bank were in a critical condition, and that a suspension of the bank was inevitable. It avers that Johnson went to Norfolk, at that time, to inspect a farm which it was proposed to exchange with him for said stock. It denies that Johnson 'then, during that visit, or at any other time, saw anything in the condition of the said bank,' except that William Lamb, who was at that time the president of the said bank, and who went with Johnson to inspect said farm, at the same time proposed that Johnson should lend to the bank $25,000, and proposed to secure the loan by mortgage on the real estate of the bank, which loan Johnson declined to make. Johnson admits that he, on December 5, 1873, sent his said stock to the bank, with too power and direction to have the same transterred to Mrs. Valantine, but he denies expressly that such transfer was madern order to oxonerate himself from liability to the creditors of the bank. The answer avers that the actual transfer of the stock, on the books of the bank, was delayed for some time, without the knowledge and against the will of the defendants. It denies that the transfer of the stock was made without legal consideration, or with any view to exonerate Johnson from liability as stockholder. It denies that the defendant Valentine is, or was, at the time of said transfer, known by Johnson 'to be utterly insolvent, or that such transfer was made with a view of detrauding the creditors' of the bank. It avers that it is not true that Mrs. Valentine was, at the time of said transfer, insolvent, or that said transfer was made for any such purpose as is alleged in the bill, but avers that it was made in good faith and for a valuable and lawful consideration. The principal question in this case is as to the circumstances attending the transfer of the stock to Mrs. Valentine. This question divides itself into two branches: (1) The information which Johnson had in regard to the affairs of the bank; (2) the real nature of the transaction between Johnson and Mrs. Valentine. 1. Lamb, the president of the bank, gives the following testimony: In the latter part of 1873, Lamb, owing to the straitened condition of the bank, was anxious to make a loan on its real estate, and wrote to Mr. Cole, the former president, then living in New York, to assist him in doing so. Cole wrote to Lamb that he had a friend, Johnson, who he thought was able to make the loan, and would do so if proper representation could be made to him, and that he would bring Johnson down to Norfolk. Some time in November, 1873, Johnson went to Norfolk with Cole, when Lamb endeavored to get Johnson to make a loan on the banking building of the bank. Lamb told Johnson that the need of a loan was urgent; that he thought the security was good; and he appealed to Johnson as a stockholder to make the loan. Johnson promised, when he returned, to look into his affairs, and to make the loan if he could conveniently do so. Lamb says. 'I cannot remember any of the details of the conversation, nor the full extent given him by me as to the condition of the bank, but my impression is that I called attention to the fact that our capital had been seriously impaired by the Elkton suit, and other litigation, and that the panic had caused us to lose business and be very hard up, and the necessity of having ready money to retain our business and to recover our position. I think I asked for a loan of $25,000 on the building. My conversation was of such a confidential character as I would have only had with one largely interested in the bank. * * * I don't remember whether he examined the books and papers of the bank.' Lamb says that the Elkton suit was one in which a bank obtained a judgment against his bank, after long and expensive litigation, for $30,000; and that the result destroyed about one-half of the capital stock of his bank, which was $100,000. Chamberlain, who was cashier of the bank, says that Johnson visited Norfolk the latter part of November or about the first of December, 1873. Hunter, who was bookkeeper of the bank and remembers Johnson being at the bank, says that he believes the reports and statements showing the condition of the bank, made up by the witness as bookkeeper, were taken into the president's room which John on was in it, but he cannot state whether they were exhibited to Johnson. The foregoing is all the direct evidence there is as to Johnson's knowledge of the condition of the bank at the time he returned from Norfolk. Within a very few days after his return he wrote a letter to Lamb, dated December 5, 1873, saying: 'I regret to say that I will be unable to comply with your wishes in letting the First National Bank have $25,000. I cannot raise the money. I was depending for the greater part of it on my folks in San Francisco, and they send me word that they cannot let me have the money, as they need all they can lay their hands on to get through the winter. The bulk of my means is in real estate and cannot readily be converted into cash. I have disposed of my stock in the First National Bank of Norfork, and inclose certificate of my shares, with power of attorney etc., to transfer. Please have the stock transferred to Mrs. B. Valentine, and send the certificate to her at Belleville, Essex county, New Jersey.' This letter contained the certificate of stock, with the power of attorney to transfer it Lamb, instead of transferring the stock, wrote as follows to Cole, inclosing Johnson's letter: 'I send you the inclosed to show you Mr. Johnson. Please let me know who Mrs. B. Valentine is. I shall make an assessment on our stockholders of 50 per cent. If she is not able to pay it I will not transfer the stock. Please return this letter.' 'Mrs. Valentine is the sister of Johnson, the wife of a poor man that Johnson employs on his farm. I would not transfe the stock, but notify him at once that you have made an assessment of 50 per cent.' These letters were written, Lamb says, in December, 1873. Lamb also says that he was not satisfied from Cole's reply, but found, after obtaining legal advice, that he had no right to refuse the transfer, and therefore he made it, on January 15, 1874. On the fourteenth of February, 1874, Lamb wrote as follows to Johnson: 'I find the inclosed certificate has not been forwarded to Mrs. Valentine, although issued a month ago; please hand it to her. I regret not hearing from you in regard to the proposition made by the directors. Something must be done at once. The bank cannot go on as affairs are now, and if I surrender it to a receiver I know our stock will be worthless; the margin is too small. If I could have gotten the refusal of all the stock I might have induced some capitalists to come in, but I am afraid it is too late now. With $4,000 cash I could have infused new life into our stock and built it right up. Please let me hear from you, as I suppose you must feel an interest in Mrs. Valentine's stock.' Johnson did not offer himself as a witness. 2. Mrs. Valentine was called as a witness by the plaintiff. Her deceased daughter was the wife of Johnson. She herself was divorced from her husband, and he was not dead that she knew of. Johnson had no children. Her daughter died in 1864. She herself lived in California with her husband for 13 years. She came from California in 1865 or 1866, and went to live at Mr. Johnson's house in Kearney township, New Jersey, in 1871. She was examined as a witness in August, 1877. She endeavors to make out a consideration for the transfer of the stock to her, in this way: 'Mr. Johnson owed me for services rendered after we came to live where we are. He was to pay me $1,000 a year for my services. He was away a great deal of the time, and I took care of everything while he was gone. He went away two winters to California, and I had the care and responsibility of everything—the entire place—while he was gone. * * * We have been at the place six years. He was away the second winter; then two winters intervened, and he was away another winter. * * * Question. Please explain why Mr. Johnson should have paid you by the assignment of the Norfolk Bank stock instead of money, if he was indebted to you and wished to make payment? Answer. Because I preferred that. He would have paid money if I had wished it. I thought it would be less trouble for me in that way, already invested, and I had to pay Q. Did Mr. Johnson's engagement gagement to pay you one thousand per year for services commence at the time you moved to Kearney township, six years ago, as you have said? A. It did. Q. Mr. Johnson has not been indebted to you, has he, for any other matter or thing except such service for the last six years? A. Since my daughter's death I have had all the charge of Mr. Johnson's clothes, and of his house at San Francisco, and here also. There was no agreement between us for compensation till we came here to Kearney. I always supposed he would compensate for these. Q. What price were you to allow Mr. Johnson in payment for that stock? A. Fifty cents on the dollar; that was the price Mr. Lamb, the president of the bank, offered for it at the time Mr. Johnson transferred it to me. Q. Did you suggest to him or he to you the purchase of this stock? A. I really can't tell. I think I proposed to him to take it instead of money. I am not positive. I think that was the way. Q. Please explain, if you call, how you came to the knowledge that he was the owner of the Norfolk Bank stock? A. He told me that he had the stock before he went to Norfolk to see the land that he then thought of exchanging the stock for. I think that was the first I knew of it. Q. And when he came back, or soon after, he proposed to you to take the stock, did he not? A. It was a long time after he came back; several months, I think. Q. Are you not mistaken in saying it was several months? A. It may not have been several months after; it was some time after. Q. Really, Mrs. Valentine, on reflection, was it more than one month? A. Perhaps not. I cannot remember. Q. When Mr. Johnson proposed that you should purchase the stock, what did he propose? Please give me, as near as you can, the language he used in relation thereto. A. I cannot remember the language used. Q. Have you now, or had you at the time you took the assignment of this stock from Mr. Johnson, any money, or any property, to purchase the stock, other than the alleged indebtedness for annual services rendered by you to Mr. Johnson? A. I am not dependent entirely; I am not destitute; have enough to keep me from want. Q. Did you give any money or other valuable thing to Mr. Johnson for the transfer of the stock other than his alleged indebtedness to you for services? A. I told him at the time he might consider all my jewelry his for part compensation. Q. He did not accept of the jewelry, did he? A. Well, it remained in the house, as it always had. Q. The stock that Mr. Johnson transferred to you was not paid for by either your obligation or promise of payment further than the alleged indebtedness to you, was it? A. It was not. Q. Had you, at that time, any other stock, bonds, bank account, or money in hand, or on deposit in any bank or banks, or in anywise invested for you or for your use? A. I had no bank account, no stock. I am never without any money to use. I have no bonds. Q. The money that you had were merely pocket funds, of small amount, were they nor? A. Yes, sir. Q. In what month was the arrangement made between you and Mr. Johnson about the stock? A. In December, 1873. Q. You stated, in reply to the thirty-second direct question, that you thought you proposed to Mr. Johnson to take the stock instead of money. Did you mean to be understood, by any subsequent answer, that the proposition for you to take the stock arose with Mr. Johnson? A. No.' The circuit court dismissed the bill, taking, as we think, an erroneous view of Mrs. Valentine's testimony in one important particular. It was assumed that she testified that she had had charge of Johnson's house and family since the death of Mrs. Johnson in 1864, at the fixed compensation of $1,000 per year; that is, that the compensation was for taking charge of Johnson's house and family from 1864 until the stock was transferred, in 1873, and that the compensation of $1,000 a year was fixed in 1864. Whereas, what Mrs. Valentine says expressly is that the engagement to pay her $1,000 a year for her services commenced in 1871, when she moved to Kearney township, and not till then; and that what Johnson owed her for was for services rendered after that. The winters Johnson was away were the winters of 1872 and 1875. At most, according to Mrs. Valentine's own story, less than three years' services, at $1,000 a year, had been rendered by her when she took this stock at $6,500. No alleged indebtedness accruing subsequently to the transfer of the stock in December, 1873, can be looked at. Mrs. Valentine says she supposed Johnson would compensate her for what she had done before she went to Kearney in 1871, but she does not pretend that there was any such obligation recognized by Johnson, or any debt for the same. That Mrs. Valentine, knowing that the alleged indebtedness to her did not amount to the alleged price of the stock, was conscious that the transaction was not an honest one, is shown by her admission that the stock was not paid for by her to Johnson, by either her obligation or promise of payment, further than the alleged indebtedness to her. This was less than $3,000 in December, 1873. To make up the difference between the indebtedness and the $6,500, she resorts to the bald suggestion that she told Johnson at the time that he might consider all her jewelry as his, 'for part compensation' for the transfer of the stock, the jewelry remaining in the house as it always had. Equally bald is the suggestion that she was saving trouble in making an investment in a stock that was worth only 50 cents on the dollar. The conclusion of the circuit court was that there was no bad faith or fraud in the transfer. But what are the facts proved? Johnson, being a stockholder, goes to Norfolk and has interviews with the officers of the bank in regard to making a loan of $25,000 to the bank. He is appealed to as a stockholder to make the loan. His position as a stockholder involved not merely the value of his stock, but his liability for $13,000 more. The urgency of the needs of the bank is prossed upon him. The facts that the capital of the bank had been impaired, and that it had lost business, are brought to his attention. The bank had made a dividend in July, 1870, and one in February, 1873, and none since. Can it be doubted, from the foregoing testimony and Johnson's subsequent action, that he examined into the affairs of the bank sufficiently to satisfy himself that the failure of the bank, and the loss of its entire capital stock, and the attaching of the statutory liability of the stockholders, were impending in the near future. He was at Norfolk the last of November or the first part of December. Mrs. Valentine says that the arrangement between her and Johnson about the stock was made in December. He sends the certificate and the power to Lamb on the fifth of December. He loses no time in assigning his stock. Lamb understood what Johnson was doing. He sent to Cole the letter from Johnson, and directed Cole to inquire as to Mrs. Valentine's responsibility. He received information that she had none, and that she was Johnson's sister. With that knowledge he acted as Johnson's attorney in transferring the stock. He evidently thought there was no bona fides in the transfer, for, in his letter sending the certificate to Johnson, although Johnson had instructed him to send it to Mrs. Valentine at a given address, he addresses Johnson as if he were still a stockholder. He refers to the future, and to the necessity of doing something at once, and to the prospective worthlessness of the stock, and winds up with the sarcastic remark that he supposes Johnson must feel an interest in Mrs. Valentine's stock. Mrs. Valentine was wholly unable to respond for any liability as a stockholder. This was known to her and to Johnson. Johnson, notwithstanding all the testimony on the part of the plaintiff, is not sworn as a witness for himself. It is worthy of note that the answer does not set forth what the consideration was for the transfer to Mrs. Valentine. The bill alleges that there was no legal consideration. The answer merely avers that the transfer was not without legal consideration, and that it was made in good faith and for a valuable and lawful consideration. It is manifest that, at the very best, on Mrs. Valentine's evidence, supposing it to be entitled to credit, and on her statement of the price at which she took the stock, there was only $2,500 of consideration, at the rate of $1,000 a year for two years and a half, leaving the transfer as to 80 shares of the stock without consideration. The entire theory of the defense is that there was a sale, and not that there was any gift. The provisions of section 12 of the act of June 3, 1864, (13 St. at Large, 102,) which govern the present case, are as follows: 'The capital stock of any association formed under this act shall be divided into shares of $100 each, and be deemed personal property and transferable on the books of the association in such manner as may be prescribed in the by-laws or articles of association; and every person becoming a shareholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder of the shares, and no change shall be made in the articles of association by which the rights, remedies, or security of the existing creditors of the association shall be impaired. The shareholders of each association formed under the provisions of this act, and of each existing bank or banking association that may accept the provisions of this act, shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in said shares.' The answer sets forth that Johnson became the purchaser and owner of the 130 shares in 1869. As such shareholder, he became subject to the individual liability prescribed by the statute. This liability attached to him, until without fraud as against the creditors of the bank, for whose protection the liability was imposed, he should relieve himself from it. He could do so by a bona fide transfer of the stock. But where the transferrer, possessed of information showing that there is good ground to apprehend the failure of the bank, colludes and combines, as in this case, with an irresponsible transferee, with the design of substituting the latter in his place, and of thus leaving no one with any ability to respond for the individual liability imposed by the statute, in respect of the shares of stock transferred, the transaction will be decreed to be a fraud on the creditors, and the transferrer will be held to the same liability to the creditors as before the transfer. He will be still regarded as a shareholder quoad the creditors, although he may be able to show that there was a full or a partial consideration for the transfer, as between him and the transferee. The appellees contend that the statute does not admit of such a rule, because it declares that every person becoming a shareholder by transfer succeeds to all the liabilities of the prior holder, and that, therefore, the liabilities of the prior holder, as a stockholder, are extinguished by the transfer. But it was held by this court in National Bank v. Case, 99 U. S. 632, that a transfer on the books of the bank was not in all cases enough to extinguish liability. The court, in that case, defined as one limit of the right to transfer, that the transfer must be out and out, or one really transferring the ownership as between the parties to it. But there is nothing in the statute excluding, as another limit, that the transfer must not be to a person known to be irresponsible, and collusively made, with the intent of escaping liability, and defeating the rights given by statute to creditors. Mrs. Valentine might be liable as a shareholder succeeding to the liabilities of Johnson, because she has voluntarily assumed that position, but that is no reason why Johnson should not, at the election of creditors, still be treated as a shareholder, he having, to escape liability, perpetrated a fraud on the statute. This is the view enforced by the decision of the Chief Justice in Davis v. Stevens, 17 Blatchf. C. C. 259. It is urged that, as the bill prays that Johnson may answer its allegations on oath, the answer is evidence in his favor, and is to be taken as true, unless it is overcome by the testimony of one witness and by corroborating circumstances equivalent to the testimony of another witness. Under the view we have taken of the case, the only material questions which are controverted are the knowledge and intent of Johnson, and the insolvency of Mrs. Valentine, and the knowledge of the latter fact by Johnson at the time. Although Johnson executed the transfer and power of attorney on December 5th, he did not deliver it to Mrs. Valentine. He sent it to Lamb for him to act as attorney. Mrs. Valentine had no agency in it. When the transfer had been made on the books of the bank, and the new certificate was made out, it was sent to Johnson on February 14th, for him to deliver it to Mrs. Valentine. The letter of that date from Lamb to Johnson, which inclosed it, was full notice to Johnson that the condition of the bank was growing worse. His contract with Mrs. Valentine, if there was one, was not fully consummated on his part till after that. There was no delivery of anything by him to her till after that. On the whole evidence, the intent of Johnson, though denied in the answer, is abundantly proved, because the facts from which the conclusion as to such intent flows are satisfactorily established, to an extent sufficient to satisfy the rule of equity. As to Mrs. Valentine's insolvency, she herself proves it conclusively, and she states facts which show that Johnson must have known it. She could give him nothing, according to her story, to answer for the $4,000 balance due him on the stock and was reduced to telling him he might consider her jewelry his, for part compensation. Under all these circumstances, the omission of Johnson to testify as a witness for himself, in reply to the evidence against him, is of great weight. This case, on the whole, is brought within the principle asserted by Chief Justice MARSHALL, speaking for this court, in Clark v. Reimsdyke, 9 Cranch 153, as a case where the evidence arising from circumstances is stronger than the testimony of any single witness. In 3 Greenl. Ev. § 289, it is stated as a rule that the sufficient evidence to outweigh the force of an answer may consist of one witness, with additional and corroborative circumstances, which circumstances may sometimes be found in the answer itself, or it may consist of circumstances alone, which, in the absence of a positive witness, may be sufficient to outweigh the answer even of a defendant who answers on his own knowledge. It is contended for the appellees that this is not a case of equitable cognizance, because a plain, adequate, and complete remedy may be had at law. But the case is one of a transfer of the legal title to the stock, made to defraud the creditors of the bank. The evidence of title to the stock is the formal assignment on the books of the bank. This being a bill for discovery as well as relief, and the fraudulent transfer being good between the parties, and only voidable at the election of the plaintiff, it is clear that equity has jurisdiction to set it aside and enforce the liability of the transferrer. Objection is taken here, by the appellees, to the sufficiency of the proof that the comptroller of the currency decided, before this suit was brought, that it was necessary to enforce the personal liability of the stockholders. The plaintiff, as a witness, testified that he received written instructions from the comptroller of the currency to enforce the whole of the personal liability of the stockholders. The defendant Johnson objected that the written evidence referred to must be produced. The record states that the plaintiff reserved the right to file the paper, or a duly-certified copy of it, with the deposition, before the same should be closed. Before the deposition was closed the witness was recalled and produced, as the record states, the original letter addressed to him and signed by the comptroller, and it was filed with the deposition. No objection was made to it, and no requirement of further proof was made. It directs the receiver to institute legal proceedings to enforce against every stockholder of the bank owning stock at the time the bank suspended, his or her personal liability as such stockholder under the statute. This was sufficient. The liability of the defendant bears interest from the date of said letter, August 13, 1875. Casey v. Galli, 94 U. S. 677. In June, 1878, Orson Adams was appointed receiver of the bank, in place of Bowden, the plaintiff. The decree of the circuit court was not made till January, 1879. The appeal to this court was taken in the name of Bowden, Adams not having been substituted as plaintiff. Adams became surety in the appeal bond, and thus treated the decree as valid and adopted the appeal. Adams now moves to be substituted as plaintiff and appellant in place of Bowden, without prejudice to the proceedings heretofore had. The appellees and their counsel first heard of the appointment of Adams from the papers served on the motion for substitution, and the appellees now move to dismiss the appeal, on the ground that none was ever lawfully taken. We think that the motion of Adams should be granted, and that of the appellees should be denied. Adams prosecuted the appeal in the name of Bowden, who was and is in life, and had a representative capacity. The power of amendment to this extent is authorized by section 954 of the Revised Statutes. It is of the same character as that exercised by this court in Gates v. Goodloe, 101 U. S. 612, where a writ of error was sued out by two bankrupts after their discharge in bankruptcy, and this court, on a motion to dismiss the writ, and a counter-motion by the assignee in bankruptcy to be substituted as plaintiff in error, denied the former motion and granted the latter. The motion of Adams is granted, and that of the appellees is denied, and the decree of the circuit court is reversed, with costs, and the cause is remanded to that court, with directions to enter a decree in favor of the substituted plaintiff as receiver, setting aside, as against him, the transfer of the 130 shares of stock by Johnson to Mrs. Valentine, and decreeing that Johnson pay to said receiver the sum of $13,000, with interest thereon, at the lawful rate in the state of New Jersey, from August 13, 1875, with costs.

109.US.74

If, through fault of the party prosecuting a cause in this court, printed copies of the record are not furnished to the justices or parties, the writ on appeal will be dismissed for want of prosecution, unless good cause be shown to the contrary. The fees of the clerk of this court must be paid in advance when demanded.

West Steever and Wm. S. Abert, for appellant. W. O. Dodd, for appellee. WAITE C. J. By the act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1884, c. 143, (St. 1882-3, p. 631,) the clerk of this court is required to pay into the treasury the fees and emoluments of his office over and above his own compensation as fixed by law, and his necessary clerk hire and incidental expenses. It is proper, therefore, that, for his protection, his fees should be paid in advance, if demanded. Under rule 10, it is the duty of the clerk to have the record printed, and a fee has been fixed for preparing the record for the printer, indexing the same, and supervising the printing. Ordinarily this fee is to be paid, in the first instance, by the party who prosecutes the cause. If he fails to make the payment when demanded, in time to enable the clerk to cause the printing to be done in due course, he fails in the orderly prosecution of his suit, and may be dealt with accordingly. Consequently, if, through the fault of a plaintiff in error or appellant, printed copies of the record are not furnished to the justices or the parties when required in the due prosecution of the cause, the writ or appeal will be dismissed for want of prosecution, unless sufficient cause be shown to the contrary. In the present case the record has been printed, but the clerk has not furnished the necessary copies to the justices because his fee for preparing the record for the printer, etc., has not been paid by the appellant, although demanded. As this is the first time the question has arisen, and the practice has not heretofore been authoritatively announced, it is ordered that, unless the appellant pay to the clerk, within 20 days from the entry hereof, what is due him for this fee, the appeal be dismissed for want of prosecution. If the payment is made, the clerk shall at once notify the opposite party, and the cause may thereafter be brought on for hearing under paragraph 7 of rule 26, as a case that has been passed under circumstances which do not place it at the foot of the docket.

107.US.546

The Circuit Court cannot take jurisdiction of a suit removed from a State court under the third subdivision of sect. 639 of the Revised Statutes, on account of "prejudice or local influence," unless all the necessary parties on one side of the suit are citizens of different States from those on the other.

This is a writ of error brought under the act of March 3, 1875, c. 137, to reverse an order of the circuit court remanding a cause removed from a state court under the third subdivision of section 639 of the Revised Statutes, on account of 'prejudice and local influence.' At the time the application for removal was made in the state court, the suit was being prosecuted by citizens of North Carolina, as plaintiffs, against George Myers, then in life, a citizen of New York, and certain other persons, all citizens of North Carolina, to recover the possession of a lot in Wilmington, occupied by Myers, and to obtain a conveyance of the legal title held by the other defendants. The suit was originally begun on the nineteenth of May, 1873, against Myers alone, to recover the possession and damages for the detention, but on the twenty-ninth of May, 1877, an amended complaint was filed, not changing the action as against Myers, but bringing in the other defendants, who, it was alleged, held the legal title, and asking for a conveyance from them. Myers alone answered the amended complaint on the eighth of September, 1877, and on the twelfth of March, 1878, petitioned for a removal, filing an affidavit to the effect that he had reason to believe, and did believe, that from prejudice or local influence he would not be able to obtain justice in the state court. The state court of original jurisdiction refused to allow a removal, but on appeal to the supreme court this was overruled, on the ground that the new defendants were merely nominal parties as trustees, and thereupon the cause was docketed in the circuit court of the United States on the eighteenth of November, 1878. In November, 1879, the circuit court, 'being of opinion that the action in its present form' could not be maintained in that court, remanded the suit to the state court, and from that order this writ of error was taken. As the suit was pending in the state court against Myers from 1873 to 1878, his application for removal was too late to secure the benefit of the separate-controversy provision in the act of 1875. Such an application should have been made at or before the term at which the cause could be first tried; or, rather, as this suit was begun before the act of 1875 was passed, it should have been at or before the term at which the cause could be first tried after that act went into operation. Removal Cases, 100 U. S. 473. Under the local-prejudice act there can be no removal unless all the necessary parties on one side of the suit are citizens of different states from those on the other. This was decided in Vannevar v. Bryant, 21 Wall. 41. It is not enough that there be a separable controversy between parties having the necessary citizenship, nor that the principal controversy is between citizens of different states. If there are necessary parties on one side of the suit, citizens of the same state with those on the other, the circuit court cannot take jurisdiction. There is no doubt that in this case the principal controversy is between Myers and the plaintiffs, but the relief that is asked cannot be granted without the presence of all the defendants. The possession of the land is in Myers or his heirs, but the legal title is thought to be in the other defendants. It is true that the other defendants are mere trustees, who may be compelled to convey if they do have the title, but one of the objects of the suit is to get such a conveyance. This part of the relief asked for cannot be had unless the trustee defendants are parties. The record shows that they refused to join as plaintiffs. This implies that they deny the trust and leave the plaintiffs to their remedies. In effect they have put themselves on the record as contending that the conveyance made by their ancestor passed the title to Myers and discharged the trust. This also is claimed by Myers. Consequently it appears that under the ruling in Gardner v. Brown, 21 Wall. 41, the plaintiffs required the presence of the trustee defendants in order to get Myers out of possession even. Without the legal title they could not recover in ejectment against him. The trustee defendants were unwilling to join with the plaintiffs. Therefore the plaintiffs had to make them defendants in order to recover at all. It follows that the trustee defendants were not only not nominal parties, but, if they actually did hold the legal title, as is assumed, necessary parties. The order remanding the cause was right, and it is affirmed.

107.US.132

1. Claims 1, 8, 9, 11, 12, 14,16, and 19 of reissued letters-patent No. 2224, granted April 10, 1866, to Reuben Hoffheins, for an "improvement in harvesters," the original, No. 35,315, having been granted to him May 20, 1862; and claims 1, 2, 6, 7, and 9 of reissued letters-patent No. 2490, granted Feb. 19, 1867, to him, for an "improvement in harvesters," the original, No. 40,481, having been granted to him Nov. 3, 1863, and reissued in two divisions, one, No. 1888, Feb. 28, 1865, and the other, No. 2102, Nov. 7, 1865; and No. 2490 having been issued on the surrender of No. 2102, - considered; and the difference between the specifications and the drawings of No. 35,315 and those of No. 2224, and that between the raking apparatus and rake-support of No. 2224 and those of the defendants, pointed out. 2. There is no warrant in No. 35,315 for locating the rake-support, or any part of it, on the finger-beam, and as each of the above-named claims of No. 2224 has, as an element, either a rake, or a rake and reel, mounted on, or attached to, the cutting apparatus or the finger-beam, No. 35,315 could not lawfully be reissued with those claims. 3. The defendants devised a new arrangement of rake, which made it possible to mount a rake-support on the heel of the finger-beam, where the rakesupport of No. 2224 could not be mounted. The difference between the yielding belt-tightener of No. 2224 and their arrangement for driving the equivalent for the former. 4. No. 40,481 negatives the idea of mounting the rake-post on the finger-beam, while an element in claim 1 of No. 2490 is the mounting of the raking mechanism on the finger-beam. In No. 2490, a driver's seat mounted on the main frame, so as to enable the driver to ride on the machine while the rake is in operation, is an element in claims 1 and 9, while the driver's seat in No. 40,481 is not, and cannot be, in such a position that the driver can ride on the seat while the rake is in operation. 6. The raking apparatus is an element in claims 2, 7, and 9 of No. 2490, and, in view of the differences between the two machines, in the construction of the raking mechanism and the arrangement and location of the rake-post, the rake of claims 2, 7, and 9 is to be construed to be such a rake, and one so arranged, on a rake-post so mounted, as is shown and described in the specification, and thus does not include the defendants' raking mechanism or rake-post. 6. The driving device in claims 6 and 7 of No. 2490 held not to include the defendants' driving device, the former being an extensible tumbling shaft and the latter a chain belt with open links, and patentability or invention inhering only in the device and not in its location. 7. No cause of action is established against the defendants on either of the patents sued on.

This suit is brought for the infringement of two reissued letters patent granted to the appellant. One, No. 2,224, was issued April 10, 1866, for an 'improvement in harvesters;' the original patent, No. 35,315, having been issued to him May 20, 1862. The other, No. 2,490, was issued February 19, 1867, for an 'improvement in harvesters;' the original patent, No. 40,481, having been issued to him November 3, 1863, and reissued in two divisions, one, No. 1,888, February 28, 1865, and the other, No. 2,102, November 7, 1865,—and No. 2,490 having been issued on the surrender of No. 2,102. No. 2,224 contains 19 claims, and No. 2,490 contains 9 claims. In No. 2,224 claims 1, 8, 9, 11, 12, 14, 16, and 19, and in No. 2,490 claims 1, 2, 6, 7, and 9, are alleged to have been infringed. The circuit court rendered a decree that the appellees had not infringed any invention of which the appellant was the original and first inventor, recited in the two reissues sued on; that No. 2,224 'contains inventions different from that contained' in No. 35,315; that No. 2,490 contains inventions different from that embraced in No. 40,481; that the said reissues respectively are, therefore, void; and that the bill be dismissed. From this decree this appeal is taken. In No. 2,224 the claims in question are these: '(1) A sweep-rake, which is mounted upon the heel of the finger-beam proper, or upon the inner front corner of the platform of a harvester which has its cutting apparatus and platform hinged to the draft-frame, all in such manner that the rake-arm sweeps the platform from front to inner side, and maintains a correct position in relation to the finger-beam and platform during the rising or falling movements thereof on the joint or joints by which the finger-beam is connected to the draft-frame, substantially as set forth.' '(8) In a harvesting machine which has its cutting apparatus hinged or jointed to the main frame in such manner as to allow it to conform at both ends to the undulations of the ground, and a rake mounted upon the said cutting apparatus, or upon the platform thereof, I claim so constructing and arranging the several parts that the support of the rake can occupy a position outside of the inner drive-wheel, B, or a position which is between the point of suspension, pension, h, and the outer divider, G, and can also be hung or be suspended below the draft-frame, substantially as described.' '(9) Effecting a combination of a rake and reel, located substantially as described, and a finger-beam and platform, with the main frame, by means of a hinged draw-bar, b, and hinged brace, I, or hinged suspender,f, and an extension bracket, 2, or their equivalents, substantially as and for the purposes described.' '(11) Preventing a too sudden or abrupt deflection of a rake and reel mounted upon a hinged-joint cutting apparatus, by carrying the point of suspension beyond the rake-support towards the center of the draft-frame, by means substantially as described.' '(12) A continuously-revolving rake, which is mounted directly and wholly upon the platform or finger-beam, so as to rise and fall therewith independently of the draft-frame, when said rake is located between the center of the draft-frame and the outer divider, and passes in at the front of the machine upon the platform and sweeps around to the inner side of the platform, substantially as described.' '(14) The combination of a suspended hinge-joint cutting apparatus of harvesters, and a combined rake and reel, which is mounted directly and wholly upon the suspended platform or hinged finger-beam, substantially as and for the purpose described.' '(16) The combination of a combined rake and reel, mounted upon a hinged-joint cutting apparatus, and a yielding belt-tightener, substantially as and for the purpose described.' '(19) Providing, in a harvester with the rake attached to its hinged finger-beam or platform, an extensible means for driving the rake, which will permit the platform and rake to rise and fall together, and accommodate themselves independently of the draft-frame to the undulations of the ground, substantially as described and for the purpose set forth.' The original patent, No. 35,315, in stating what the invention is, says that it consists of certain improvements 'in the manner of mounting and operating a revolving rake.' There were three features set forth in the specification of No. 35,315: (1) the peculiar construction of the reel and rake; (2) the peculiar form and location of the rake-post; (3) the peculiar manner of operating the rakes. There were only three claims in No. 35,315, one covering each of said three features, as follows: '(1) A combined reel and rake, rotating upon a vertical axis, and having its arms successively turned up into an inverted position to pass over the main frame, substantially as explained.' '(2) The inclined standard, I, rigidly mounted upon a loosely-hinged platform, and employed to support a revolving reel and rake in an unchangeable position in relation to the said platform, without obstructing the free motion of the latter.' '(3) The yielding and swiveled rod, Q, operating in combination with the band, P, and pulleys, O and R, in the manner and for the purposes herein shown and explained.' A copy of the model filed in the patent-office with the original application for No. 35,315 is in evidence. The invention shown in the specification of No. 35,315 consists, in general terms, in mounting a rake upon a quadrant-shaped platform, said platform being hinged to the frame of a two-wheeled machine in such manner that the raking-arms will maintain at all times a proper working position relatively to the surface of the platform and at the same time receive motion from driving mechanism mounted on the main frame; the result being accomplished by constructing the raking apparatus in a peculiar manner, and mounting it in a peculiar manner upon the platform of the machine, and also by connecting the driving mechanism of the rake with the driving mechanism on the main frame by a belt mounted in a peculiar manner, so that the varying changes in the position of the platform and the raking apparatus, relatively to the main frame and the gearing therein, will not affect the driving mechanism of the rake. The specification says: 'D is a segmental platform, provided with a divider, E, at its outer end, and resting upon a roller, e. F is a draw-bar connected at front by a universal joint to the frame, A, and attached at back to a shoe, f, upon which the inner side of the platform may rest. G is a lateral brace-rod, hinged at one end beneath the right-hand rear corner of the main frame, and at the other to the draw-bar, F, or shoe, f. H is a link by which the inner end of the platform is suspended from the back of the main frame.' This language describes the parts which relate to the platform and the devices by which it is attached to the main frame, and by which it is permitted to vary its movement relatively to the main frame, to conform to the unevenness of the ground, and there is nothing else on the subject in the text of the specification. In the drawings of No. 35,315, the suspending link, H, by which the inner side of the platform is suspended from the main frame, so as to keep it on a level with the wheel at the outer shoe, at the opposite side of the platform, is attached at its lower end to an arm which extends out from the platform nearly to, but short, of, the middle of the width of the tread of the left-hand driving-wheel, B, but the drawing represents the central line of the link, H, as in the vertical plane of the left-hand edge of the tread of the wheel, B, so as to put the point of suspension in a vertical line with the left-hand edge of the tread of the wheel, B. The model referred to shows the link as being suspended at a point on the frame to the right of the vertical plane of the left-hand edge of the tread of the wheel, but not to the right of the vertical plane of the middle of the width of the tread. In the reissue great stress is laid upon this point of suspension. In the specification of the reissue it is said: 'From the inner corner of the finger-beam or platform, or from the metal foot-piece of the rake and reel-support, by which the support is screwed to and braced on the platform and finger-beam, a strong bracket, 2, is extended beyond the left-hand side-beam of the draft-frame. To the extremity of this arm a swinging link or chain, f, is loosely connected or jointed, as at g, and by means of this link or chain the finger-beam, platform, and rake, though arranged at the left of the left-hand drive-wheel, B, can be suspended from a point which is to the right of the said left-hand side-beam. The suspension is effected by hanging the upper end of the link or chain to the rear beam of the draft-frame, as represented at h.' In the drawings of the reissue the point of suspension of the link is located a little to the right of the vertical plane of the middle of the width of the tread of the left-hand driving-wheel, and the arm or bracket to which the lower end of the link is attached extends to a point beyond, and at the right hand of the middle of the width of such tread. In the specification of No. 35,315 the word 'finger-beam' is not found, nor is a finger-beam described in it or shown in the drawings. As to the method of mounting the rake, the specification of No. 35,315 says: 'I is a post rigidly secured to the inner side of the platform, and inclining over the rear of the main frame; i is a brace-rod extending from the draw-bar to the said post, to support the latter at top; J is a box mounted on the top of the post, I, and constituting the bearing in which the disk, K, rotates. The rakes or reel-arms, L, L', are mounted in couples upon the ends of horizontal shafts, M, M', which are journaled at right angles across the rotating disk, K.' This is all that is found in that specification as to the location of the axis of the rake. On the other hand, the specification of the reissue says: 'Figure 9 is a rear elevation of a portion of the machine, showing the manner of suspending the rake and reel-support upon the hinge-joint finger-beam or platform thereof.' The drawings of the reissue show a finger-beam, and it is lettered, and referred to by letter in the text. The specification of the reissue further says: 'It is also important to have the suspension of the rake made in such a manner that the base of the support of the axis of the rake is wholly upon the hinged finger-beam, or the platform thereof, and also that the rake, the finger-beam, and the platform shall be rigidly connected together.' Here the word 'finger-beam' is again introduced, as important in connection with the support of the axis of the rake. The expert for the defendants states that the drawings of No. 35,315 show the base of the support of the rake so far back, or to the rear of the front edge of the platform, that it cannot, in his opinion, be brought in contact with the finger-beam, without changing its locality very materially, or the mode of its construction or attachment. But the specification of the reissue says: 'D is the finger-beam and E the platform of the harvester, the cutting apparatus and guard-fingers being left off. F is a support for a combined rake and reel. This support is mounted rigidly upon the inner front corner of the platform and heel of the finger-beam, but it may be mounted either wholly on the finger-beam or wholly on any part of the platform, which is to the left of the left-hand drive-wheel, B, or to the right of said drive-wheel, if it is a right-hand machine.' There is no warrant in the original patent for locating the rake-support, or any part of it, on the finger beam. As to claim 1 of the reissue, the finger-beam is made an element of the combination, while in the specification and drawings of No. 35,315 there is no reference to a finger-beam. Moreover, the raking apparatus of the appellant is so constructed that when one of the arms has descended to force the grain towards the platform and to sweep across the platform, the opposite arm must be raised to such a point as to clear the wheel of the machine. The arms are in pairs, and the motion of one arm of a pair is controlled by the motion and operation of the opposite arm of that pair. The inclination of the two to each other is such that when one is sweeping across the platform the other forms an exactly opposite angle to the axis on which they both revolve. Therefore, the support of the rakes must be so mounted that they can descend to the grain at the proper point in front of the cutters to press in the grain and sweep across the platform form and deliver the gavels and then rise out of the way of the frame. To effect this, the point of vibration of the pair of arms must be raised so high and carried over towards the frame so far, that the descending arm may reach its proper position to do its work, while the other arm of that pair shall clear the frame in rising. Therefore, the support of the raking apparatus was required to be of such form and character, and so placed relatively to the platform and frame, that one arm of a pair would not interfere with the working of the other arm of the same pair. Now, the arms of the raking apparatus are diametrical arms, the centers of which are axes mounted on a horizontal head, which head is so fastened on a vertical shaft that, the opposite ends of the arms being inclined to the axis of rotation, one end of one arm will descend and sweep across the platform, while the other will be carried in an exactly opposite direction, with its rake teeth turned up, while the teeth of its opposite arm are turned down. In such an arrangement, the bearing point or axis of rotation of the arms must be carried up a considerable distance above the platform and reach over in a diagonal direction from the front edge of the cutters to the delivery edge of the platform, so that the rake at its end next the base of the rake-support may be brought close enough to the platform to do its work. Hence, the inclined post of No. 35,315, described as so inclined and thus claimed in claim 2 of that patent. But in the specification of the reissue, though the drawings show the same sort of inclined post or standard, it is said: 'From the platform or finger-beam the support may extend in an inclined position as high as the top of the draft-frame, and then take a turn over towards the center of said frame, as represented, so as to form a support for the rake and reel which shall be somewhat higher than the frame and between the two drive or supporting wheels. The particular shape and height of this support is not very material, so long as the base of it is affixed at some point between the center of the main frame, A, and the outer shoe or divider, G.' The special kind of support described and shown in the patents, original and reissued, is essential to the operation of the special kind of raking apparatus there described. But the appellees' machine has a raking apparatus differently organized. In it each arm moves independently of every other arm, the arms are not coupled in pairs, and each does its work without reference to the movement of any other. Therefore, it is unnecessary to raise the supporting porting point of the rake-amrs to any considerable height, or to carry it over to a location between the drive-wheels, and in the appellees' machine the pivot on which the rakes revolve is at a considerable distance towards the outer shoe and is not all between the drive-wheels. The appellees' sweep-rake is not substantially such a sweep-rake as is referred to in claim 1 of the reissue, nor is it mounted in such a manner as to perform the functions of the appellant's rake. The rake-post in the appellees' machine is vertical and not inclined, and is mounted on the shoe or inner end of the finger-beam. In analyzing the two machines, in view of the state of the art, it appears that the appellant adapted a continuously-revolving gathering and discharging rake to a two-wheeled loosely-jointed finger-bar machine. To do this he employed a peculiar rake and a peculiar rake-support. The appellees employ an entirely different rake. They have a series of radial arms pivoted each independently of every other in a head, which has a double cam guideway for each arm, and the arms are thereby elevated vertically so as not to strike the frame in passing up. This makes it possible for the appellees to place the support for their rake on the finger-beam by the side of the frame and in the line of the cutters, instead of behind the frame. No such organization is possible with the appellant's arrangement of rakes. The center of movement of his rakes must be brought in line with the cutters by having an inclined rake-post, the base of which is not in a vertical line with the line of the cutters. He shows no mode of placing the base of the post on the finger-beam. If it were placed there, with his arrangement of rake-arms, and his inclined post, the center of motion of the arms would be so far out of its proper position that the arms would not do their work. Having independent radial arms, the appellees can have a vertical and not an inclined rake-post, and can bring the center of motion of the arms in a line with the cutters by mounting the vertical post on the finger-beam. They do this, and for that purpose they have a bridge over the inner shoe of the finger-beam for the foot of the rake-post to rest on, while at the same time the cutters can vibrate under the bridge. The post is hollow and supports the cam guideway, and the vertical shaft which revolves the rakes passes up in and through the hollow post. The appellees have not borrowed from the appellant. They devised a new arrangement of rake which made it possible for them to mount their rake-support on the heel of the finger-beam proper, where the appellant can never mount his, and where that of the appellees is mounted. The theory of the reissue appears to be that, as the original patent shows a special device for supporting a special arrangement of rakes, such device being located on a particular part of the platform other than, and not possible to be, a part of the finger-beam, he can claim in a reissue any device for supporting a revolving rake, even one located on the finger-beam. To carry out this view, the word 'finger-beam' is interpolated in the specification, in this connection, as an addition to the word 'platform,' and the rake-post is described as being attached to the finger-beam or the platform. But there is an entire absence in the original specification, and in the reissued specification, of any description of any means by which the rake-support can be attached to or mounted on the finger-beam, or by which the rakes can be made to work with the rake-support in that location, or by which the connecting-rod of the cutters can be free to work with the support so placed. The law of reissues never at any time, or under any construction, allowed that to be done which has been thus attempted in this case. The foregoing views apply also to claims 8, 9, 11, 12, 14, 16, and 19, being all the other claims alleged to have been infringed, and each of which has, as an element, either a rake, or a rake and reel, mounted on or attached to the cutting apparatus or the finger-beam. In the reissue claim 2 is substantially the same as claim 1 of the original, claim 5 (with the interpolation of the finger-beam) is intended to take the place of claim 2 of the original, and claim 18 corresponds with claim 3 of the original. Yet the appellees' machine is not alleged to infringe either claim 2, claim 5, or claim 18 of the reissue; nor does it embrace what was covered by any one of the three claims of the original. As to the yielding belt-tightener of the appellant, which is the subject of claim 3 of the original patent and is an element in claim 16 of the reissue, the appellees' machine does not employ any device which performs the function of tightening a belt. It uses, to communicate motion from the main axle to the raking apparatus, an old form of chain belt, composed of square open links, connected by loops of metal between the links, and the links arranged to run over sprocket-wheels, which have teeth on them corresponding to openings in the links of the chain, and which prevent the chain from slipping on the wheels. As the links of the chain engage positively with the teeth on the sprocket-wheels, there is no need of a belttightener, as no slackness in the chain can interfere with the driving action. The only function of the appellees' device which holds up, by a yielding pressure, the under part of the chain-belt, is to so guide that part, when slack, that the teeth on the sprocket-wheels may readily enter the links of the chain. The appellant's belt could not, in the same position, drive the raking apparatus so as to make it work properly. The appellees, by the use of sprocket-pulleys and a chain, dispense with a tight friction-band, and with a pulley around which the platform vibrates, and with a tightening pulley. Their arrangement is not an equivalent, in mechanism or functions, for that of the appellant. It is made an element of claim 11 of the reissue that the point of suspension of the platform to the main frame is carried beyond the rake-support towards the center of the draft-frame, by means described in the specification, so as to prevent a too sudden or abrupt deflection of the rake and reel. The specification of the reissue says that 'it is important that the great weight of the rake, finger-beam, and platform shall not cause the draft-frame to tilt over on its right-hand drive-wheels by sudden and abrupt motions, but shall tend to insure a square run of the draft-frame upon the ground during the pitching or rising and falling motions of the finger-beam, platform, and rake, and thus an even and easy draft for the beam be secured.' But the reissue shows the point of suspension of the platform to the main frame as being nearly under the axis on which the rake-arms revolve, and said point is near the vertical plane of the middle of the width of the tread of the drive-wheel which is next to the cutters, so that the inner end of the platform is subject to all the vertical motions of such drive-wheel. The point of suspension being in the pathway of the wheel, the rising or falling motion of the wheel must be communicated to that end of the cutters which is next to such wheel. In the appellees' machine the suspension of the platform is made by an arm extending out from the finger-bar or inner shoe to a point about opposite the center of the main frame, and which arm is there suspended by a chain to a hook on the frame, so that the weight of the cutting apparatus and rake and inner part of the platform is transferred to nearly a center point between the drive-wheels. The appellant's structure shows no such organization, and does not involve what the appellees have done. For the foregoing reasons, without considering the many other questions raised in the case, it must be held that the appellant has not established any cause of action against the appellees on reissue No. 2,224. In No. 2,490 the claims in question are these: '(1) The combination, in a two-wheeled hinge-joint machine of a driver's seat mounted upon the main frame, with a raking mechanism mounted upon the finger-beam, and rotating around a vertical axis, or one nearly so, substantially in the menner described, for the purpose of enabling the driver to ride on the machine while the rake is in operation.' '(2) The combination, in a two-wheeled hinge-joint machine, of a shoe with a hinged joint in it, with a rake and platform having an extension, J2, and with a draft-frame which sustains the weight of the cutting apparatus and raking apparatus, with platform attached, at a point between the two drive-wheels.' '(6) Driving a revolving rake, or a combined revolving rake and reel, which move about a vertical or nearly vertical axis, by a device arranged on the grain side of the inner drive-wheel or inner side of the draft-frame.' '(7) Making a direct driving connection between a revolving rake, or a combined rake and reel, which move about a vertical or nearly vertical axis, and the inner end of the main frame axle of the draft-frame.' '(9) The combination of a quadrant platform, hinged finger-beam, revolving rake, and a driver's seat supported by the main frame.' The original patent, No. 40,481, says that the improvements covered by it consist (1) in a peculiar construction and combination of frame, gearing, and double driving-wheels; (2) in a device for affording protection to the main crank-shaft and strengthening the main frame; (3) in the use of a movable tongue; (4) in a device for permitting the finger-beam to turn freely on its own axis. There were only four claims in No. 40,481, one covering each of said four features, as follows: '(1) The main frame and gear-frame A, A, constructed as described, open at each end, when used in combination with shafts, gearing, and double driving-wheels, arranged and operating substantially as and for the purpose specified.' '(2) The flange, a, cast or formed upon the gear-frame for the combined purpose of strengthening the latter and protecting the crank-shaft, E. as hereinbefore explained.' '(3) The movable tongues, K, adapted to be attached to the frame on either side of the wheel, B', and employed to support or raise the inner end of the beam.' '(4) Attaching the shoe to the drag-bar by a transverse swivel-joint, to permit the finger-beam to turn its axis to elevate or depress the joints of the fingers, or to fold the beam against the frame for transportation, when combined with bracing-guides, h', substantially as herein described.' Every one of the four claims of No. 40,481—the iron frame cast in one piece, the flange, the movable tongue, and the transverse swivel-joint—is omitted from the reissue, and there are no corresponding claims. The rake-support is of the same form and in the same location as in No. 35,315, inclined and mounted on the platform, and not on the finger-beam, and the inner end of the platform is suspended on the main frame in the same way as in No. 35,315. The specification of No. 40,481 says: 'On the inner side of the grain platform, near the heel of the finger-beam, is firmly mounted a post, R, which may incline over towards the main frame, as shown in figure 1.' This passage negatives the idea of mounting the post on the finger-beam, and draws a distinction between the platform and the finger-beam as a location for the attachment of the post. The only mention of a driver's seat in No. 40,481 is this: 'W represents the driver's seat.' In the specification of the reissue the following language is found: 'My first improvement consists in the combination, in a two-wheeled hinged-joint machine, of a driver's seat mounted upon the main frame, with a raking mechanism mounted upon the finger-beam, and rotating on a vertical axis, or one nearly so, substantially as hereinafter described, for the purpose of enabling the driver to ride upon the machine while the rake is in operation.' Again, after describing the construction and arrangement of the rake or reel-arms, which are the same as in No. 35,315: 'By this means the rake and reel-arms will stand high enough above the draft-frame on the inner side of the machine to move clear of the driver, who sits upon the machine in a seat, W, which is mounted upon the main frame, as shown, or in any other position on the frame that will give the greatest convenience and advantage from his weight and use of his hands in the management of the machine.' 'From the foregoing description it will be seen that my invention enables one to combine in a self-raking harvester all the advantages derived from the two-wheeled hinged-joint machine, and still use a rake that turns about an axis, or revolves entirely about the same, and at the same time have the driver or manager ride upon the main or draft-frame in such a position that his weight may aid in counterbalancing the weight of the rake and platform, and his hands may be conveniently employed for controlling the machine.' As to claim 1 of the reissue, although there is in No. 40,481 a driver's seat mounted on the main frame, it is not in such a position, nor can it be placed on the frame described in such a position, that the driver can ride on the seat while the appellant's rake is in operation. The appellees' raking apparatus has been above described. The appellant's raking apparatus is like that of No. 35,315 and of reissue No. 2,224. If the appellant's raking apparatus were substituted in the appellees' machine for their raking apparatus, no person could ride on the driver's seat located anywhere on the frame of the appellees' machine, as it is constructed, with the rake in operation. The seat shown in the drawings of No. 2,490 is mounted on a portion of the frame which extends to the rear of the main axle, and the seat itself is shown as placed in the rear of said axle. Consequently, a driver located on said seat would add his weight on the same side of the main axle on which the raking apparatus is mounted, so that the idea of any counterbalancing weight from the position of the driver is negatived by the arrangement. In the appellees' machine the organization of the raking mechanism, before described, is such that the driver's seat may be located towards the front of the main frame, where he cannot be struck by the rake-arms, and where his weight will aid in counterbalancing that of the rake and the platform. No such organization of raking mechanism is shown or described in No. 2,490, nor any such arrangement of seat relatively thereto. Moreover, claim 1 of No. 2,490 requires that the raking mechanism be mounted on the finger-beam. Such a construction is not shown or described in No. 2,490, or in No. 40,481. The raking apparatus in the appellees' machine is mounted directly on the finger-beam, The views hereinbefore expressed in connection with No. 2,224 apply to No. 2,490, so far as the mounting of the rake-post on the finger-beam and the arrangement of the raking mechanism are concerned. As to claim 2, the raking apparatus is made an element in it, and the differences, before pointed out, between the two machines, in the construction of the raking mechanism and the arrangement and location of the rake-post, lead to the conclusion that the rake mentioned in claim 2 must be construed to be such a rake, and one so arranged, on a rake-post so mounted, as is shown and described in the specification, and thus does not include the appellees' raking mechanism or rake-post. As to claim 6, the driving device must be limited to one substantially the same as that of the appellant. He has an extensible tumbling-shaft. The appellees have a chain belt, with links, before described. Their arrangement requires that the axis of the driving-wheel and the driven-wheel shall be substantially parallel, while No. 2,490 requires that in the appellant's structure the axis of the two wheels, or the ends of the axes, shall incline towards each other at a considerable angle. The tumbling-shaft, if used, must be used in such a location that the chain belt would not work in the same place. The two devices are not mechanical equivalents for each other. One could not be substituted for the other without a rearrangement of parts. Their only resemblance is that both communicate motion. The place where the device is arranged, namely, as the claim says, on the grain side of the inner drive-wheel or inner side of the draft-frame, imparts no patentable or inventive quality in this case. That inheres only in the device. In regard to claim 7, the appellant's raking apparatus and driving device are elements in it, and the observations before made apply, so that the appellees' raking apparatus and driving device are not covered by this claim. Claim 9 includes the rake and the driver's seat, and under the views before stated the appellees' machine cannot be held to infringe that claim. These conclusions make it unnecessary to consider any other question. The decree of the circuit court is affirmed, in so far as it dismisses the bill.

108.US.66

1. Where a wife lends to her husband money which is her separate property, upon his promise to repay it, it creates an equity in her favor which a court of equity will enforce in the absence of fraud. 2. If the husband, being insolvent, mortgages real estate to secure such a debt to his wife, previously incurred, a court of equity will not set aside the mortgage as fraudulent against the assignee in bankruptcy if the wife was ignorant of the insolvency and if there was no fraud. 8. One of two partners files a voluntary petition in bankruptcy, alleging that the other partner will not join him, and praying to have him declared a bankrupt: Held, that this, as to the other partner, is a case of involuntary bankruptcy within the meaning of the act of June 22d. 1874, ch. 130, § 10, 18 stat. 180. 4. On a reference in equity to a master, the findings of the master are prinu facie correct. Only such matters are before the court as are excepted to, and the burden of sustaining the exception is on the objecting party.

This is a bill in chancery, brought by Bonebrake as assignee in bankruptcy of John R. Metsker, against said Metsker and his wife. The object of the bill is to subject to administration, as part of the assets of the bankrupt, a farm of 162 acres of land, on which Metsker and his wife were living, the legal title of which was in Mrs. Metsker. It appears that on August 2, 1876, Metsker and wife conveyed this land to McCole, who, on the fourth day of the same month, conveyed it to Mrs. Metsker, the consideration in each deed being recited as $8,000. On December 1, 1876, one Poe, with whom Metsker was in partnership in the hardware business, filed his petition in bankruptcy, alleging that Metsker would not join him, and making him a party, and praying that he be adjudged a bankrupt. On the twenty-ninth of that month Metsker came in and confessed himself a bankrupt, and was so adjudged. The charging part of the bill, as regards the invalidity of the title conveyed to Mrs. Metsker by these two deeds, reads as follows: 'On that day, to-wit, August 2, 1876, within four months of the time of filing said petition in bankruptcy, the said John R. Metsker, being the owner, in his own right, of the real estate above described, and being indebted as aforesaid, with the fraudulent intention of defeating the operation and effect of the bankrupt law; and with the fraudulent intention of preventing his property from being distributed and applied in payment of his debts, as provided for in the bankrupt law; and with the intention of defrauding and cheating his creditors; and with the intention of preferring, in violation of the provisions of the bankrupt law, a pretended claim of the defendant Elizabeth Metsker, which claim, your orator says, was unjust and incorrect, and not a valid and legal claim against said John R. Metsker,—the said John R. Metsker, together with his wife, the defendant Elizabeth Metsker, did execute, without any consideration whatever, to one C. J. McCole, who was a party to such fraudulent purpose, a deed of conveyance of said real estate; and the said grantee, C. J. McCole, in pursuance of the previous understanding and agreement, and for the purpose of carrying out the fraudulent intent before expressed, did convey said real estate to the defendant Elizabeth Metsker, wholly without any consideration, on the fourth day of August, 1876. 'And your orator states that said Elizabeth Metsker was fully cognizant of the fraudulent and wrongful intention of said John R. Metsker, and participated in the same, and joined in the deed to McCole for the purpose of carrying out the same, and accepted said fraudulent conveyance from C. J. McCole with full knowledge of its purpose, and with the intention of carrying out said fraudulent purpose.' To this bill Metsker and his wife filed their answer, under oath, in which they admit the conveyances and the bankruptcy proceedings, but denying all fraud in the transaction, and that Metsker was in failing circumstances when the deeds were made, or that they knew or believed he was unable to pay his debts. They aver that after said conveyances were made a large part of the indebtedness of Poe & Metsker was paid off in the ordinary course of business. They further allege that the conveyances mentioned were made in order and for the express purpose, and for no other purpose, of paying a debt of $5,700 which Metsker owed his wife, and the interest accumulated thereon, for money loaned by her to him, which he had promised to repay to her on demand. It is evident that the bill is framed upon the idea that section 5128 of the Revised Statutes was in force, and that the periods within which such conveyances by an insolvent could be assailed as void under the bankrupt law were four and six months, and all its allegations seemed aimed at such acts as would be unassailable after those periods. But the act of 1874 has shortened these periods to four and two months in cases of involuntary bankruptcy. 18 St. 180, § 10. We do not doubt that Metsker's was a case of involuntary or compulsory bankruptcy, within the meaning of this amendment. The distinction intended by this language is clearly between the cases in which the bankrupt himself and of his own volition initiates proceedings in bankruptcy, and those in which they are commenced by some one else against him. In the one case it is voluntary and in the other compulsory. It is not a voluntary bankruptcy if the man is forced into it against his will by his partner, any more than by any one else, and it is compulsory and involuntary if he refuses to join in such case and is forced into it, as much as in any other enforced bankruptcy. These deeds cannot be impeached, therefore, on the grounds of preference or payment in violation of the bankrupt law. But, whatever may have been the case in the mind of the pleader who drew the bill, there is language which, if liberally construed, may be held to charge that these conveyances were void or voidable as being made with the intention of defrauding and cheating creditors generally, and without any valuable consideration. In this view the bill was very loosely drawn, but as issue was taken on it and testimony produced, we will inquire into its effect as proof of the charge. When the pleadings were made up an order was entered, without objection, referring the case to a master to take the evidence and report his finding thereon. He reported that Metsker had received, at various times during the 10 years preceding his bankruptcy, moneys belonging to his wife, mostly proceeds of land inherited from her father, amounting in the aggregate to $5,600; and that he had agreed to return it to her, and that she had alway claimed that he was her debtor to that amount. He therefore finds she was a creditor at the time of the conveyance. He also finds that Metsker was insolvent at that time, and that his wife did not know it; and, on the whole, that the allegations of the bill are not sustained. Exceptions to this report were filed, which were sustained by the court, and a decree rendered for the assignee. The evidence taken by the master was reported with his findings, and the case seems to have been treated by the court below without much regard to the finding of the facts by the master or any special regard to the exceptions made to his report. This is not correct practice in chancery cases in the circuit courts of the United States, whatever may be the rule in the state courts. The findings of the master are prima facie correct. Only such matters of law and of facts as are brought before the court by exceptions are to be considered, and the burden of sustaining the exception is on the objecting party. In the case before us we are inclined, after a careful examination of the testimony, to concur with the master's report. It is altogether a matter of the weight of evidence. 1. It is denied that the money was received of the wife by the husband, and, if received, that it was a loan. The testimony leaves no doubt that there was received from the estates of the wife's deceased father and brother, at different times, the aggregate sum of $5,700. The wife swears positively that she loaned these sums to ner husband, who repeatedly promised to pay her; that at one time, more than a year before the bankruptcy, they had sharp words or ill feeling about it, and he told her he had nothing but the farm and would convey that to her, and that the conveyances finally made were in pursuance of his repeated promise to do so. All this is wholly uncontradicted. 2. Much testimony is taken to prove that the price was so inadequate as to show fraud, though no such charge is made in the bill. The fair result of all the testimony on this point is that the land was worth about $8,000, the sum recited in the conveyance, and if interest be computed on the $5,700 from the periods at which the various sums were received, it will amount to the full value of the land, if not more, at the time the deeds were made. 3. There is no reason to disbelieve Mrs. Metsker when she swears positively that she did not know nor suspect her husband's insolvency until bankrupt proceedings were commenced. Her statement is confirmed by the allegation, undisputed, that between the time of the conveyance and the petition in bankruptcy $4,000 of their debts were paid, and the bill alleges that their debts were only $5,000 in excess of their assets. 4. The master who was present and heard Mrs. Metsker testify, and could see her manner, and is, therefore, better able to determine the weight due to her testimony, says he has no doubt she was a creditor, and was in ignorance of Metsker's insolvency. Dean v. Pearson, 102 Mass. 101. 5. The conveyance first to McCole, who paid nothing, but took the title in trust for Mrs. Metsker, and from him to her, was to satisfy the common-law inability to make a strict conveyance from husband to wife, and is no evidence of fraud. In the case of the Atlantic Nat. Bank v. Taverner, 130 Mass. 409, that court says: 'The question whether a loan by the wife to the husband of money, which is her separate property, upon his promise to repay it, creates an equity in her favor, which a court of equity will enforce, has not been decided in this commonwealth. But it has generally, if not uniformly, been decided in the affirmative in other courts,' for which numerous cases are cited. It is added: 'That the jury in this case having found that the money delivered by the wife to the husband was by way of loan and not of gift, and that his subsequent conveyance of land through a third person to her in repayment of that loan was not made with the purpose of hindering, delaying, or defrauding creditors, that conveyance, to satisfy his equitable obligation to his wife, was not a voluntary conveyance, and was valid against his creditors. Bullard v. Briggs, 7 Pick. 533; Forbush v. Willard, 16 Pick. 42; Stetson v. O'Sullivan, 8 Allen, 321; French v. Motley, 63 Me. 326; Grabill v. Mayer, 45 Pa. St. 530; Babcock v. Eckler, 24 N. Y. 623; Steadman v. Wilbur, 7 R. I. 481.' Such is precisely the case here, as reported by the master, and, as we think, supported by the evidence; and the decree of the circuit court is, therefore, reversed, and the case remanded, with directions to dismiss the bill.

107.US.625

1. Where a collector of customs brings a writ of error to review a judgment recovered against him for moneys exacted by and paid to him on entries, this court will, if it affirms the judgment, allow interest on it, under rule 23. 2. In such a case, the "final judgment," the amount whereof is payable under sect. 989 of the Revised Statutes, is that rendered by the court below pursuant to the mandate of this court.

These writs of error were brought to review a judgment rendered by the circuit court of the United States for the southern district of New York, October 14, 1882, nunc pro tunc as of October 7, 1882, in favor of Thomas Cochran and William Barbour, surviving partners of S. Cochran & Co., against Augustus Schell, late collector of customs, for the sum of $1,892.83, composed of $1,734.80 damages and $158.03 costs. The damages were for excessive fees exacted at the custom-house on entries, and the writ of error brought by Schell was brought to review the judgment in respect to the recovery for such fees. The writ of error brought by S. Cochran & Co. was based on their failure to recover in the suit for duties paid under protest. The writs of error were heard together at this term, and the judgment was affirmed; the recovery for the fees and the failure to recover for the duties being both of them sustained. The judgment of this court, as set forth in the mandate, was rendered March 19, and covered both writs of error, and directed that the judgment of the circuit court be affirmed, 'with interest until paid, at the same rate per annum that similar judgments bear in the courts of the state of New York.' The mandate was sent to the court below on the fourth of April, and now the solicitor general, representing the United States, moves, on behalf of Schell, to correct the judgment and the mandate by striking out the direction as to interest, so that the judgment rendered October 14, 1882, shall not carry interest up to the time a new judgment is rendered by the court below on the mandate. This application appears to be based on the construction given to a decision made by the circuit court for the southern district of New York, in January, 1882, in White v. Arthur, 10 Fed. Rep. 80. That was a suit against a collector of customs to recover duties paid, in which the circuit court rendered a judgment for the plaintiffs, March 1, 1881, for $2,295.90, and where at the trial of the action the court had made a certificate of probable cause, under section 989 of the Revised Statutes. The judgment being presented for payment out of the treasury, under that section, the amount of the face of it was paid, without any interest on it after its rendition. The court being applied to by the attorney for the United States to direct satisfaction of the judgment to be entered of record, it was held that the government was not liable for any interest on the amount of the judgment after its entry. This decision was founded on a consideration of the statutory provisions on the subject of the payment out of the treasury of the amount of a judgment recovered against a collector of customs or other officer of the revenue, for money paid to him and by him paid into the treasury in the performance of his official duty, where a certificate of probable cause is granted. The result reached was that, under the language of the appropriation bills of 1878, 1879, 1880, and 1881,—Act June 14, 1878, § 3, (20 St. at Large, 128;) Act March 3, 1879, § 1, (Id. 414;) Act June 16, 1880, § 1, (21 St. at Large, 242;) Act March 3, 1881, § 1, (Id. 418,)—interest accruing after the entry of such a judgment, on its amount, or on the money so paid to the officer, is not to be paid by the government; and that, under section 989, the officer is not personally liable for such interest. This court has never made any decision on the points thus ruled on in White v. Arthur. The case of Erskine v. Van Arsdale, 15 Wall. 75, was a suit to recover back an internal-revenue tax illegally exacted. The court below had instructed THE JURY THAT THEY MIGHT, IN THEIR VERDICT, ADD INTEREST TO THE Tax paid. this court held that instruction to be correct, but the only decision was that interest might be added from the time of the illegal exaction to the verdict. Nothing was decided as to interest on the judgment when the government should come to pay it. The interest included in the verdict is put in before there is any certificate of probable cause, and, if there is no such certificate, the government assumes no part of the liability of the defendant. In U. S. v. Sherman, 98 U. S. 565, all that was decided was that there must be a certificate of probable cause, under section 989, before the liability of the government to pay a judgment against a revenue officer can attach, and that, where a certificate of probable cause is made after the judgment is rendered, there is no liability of the government for the interest which accrues on the judgment before the making of the certificate. In that case the government had voluntarily paid the interest which accrued after the making of the certificate. It is provided by section 1010 of the Revised Statutes that 'where, upon a writ of error, judgment is affirmed in the supreme court, or a circuit court, the court shall adjudge to the respondent in error just damages for his delay.' Rule 23 of this court provides that where a judgment is affirmed on a writ of error, 'the interest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the states where such judgment is rendered.' This statute and rule, and the practice under them, followed in the mandate in the present case, of allowing interest on the affirmance of a judgment where a collector is plaintiff in error, were urged by the counsel for the defendant in White v. Arthur, as showing that in that case interest on the judgment should be paid; but the court held that such practice could not affect the question there raised, because the allowance of such interest belonged solely to the putting the judgment in shape, as one in a private suit. The interest allowed in the present case, in the judgment of this court, was allowed under rule 23, which, in its provisions as to interest, is in harmony with section 966 of the Revised Statutes, originally enacted August 23, 1872,c. 118, § 8, (5 St. at Large, 518.) Such interest, for the time a writ of error is pending, is really damages for delay. When the mandate of this court goes to the court below, it is necessary that that court, with a view to execution, should enter a further judgment in accordance with the mandate, covering the direction of this court as to interest and as to costs in this court on the writ of error. A writ of error in a case of this kind, being brought by a direction of a department of the government, operates as a supersedeas, under sections 1000 and 1001 of the Revised Statutes, without out any bond to answer in damages being given. The plaintiff in the judgment being stayed as to execution while the case is in this court, and there being a new judgment rendered by this court in the suit, 'the final judgment' referred to in section 989 is the judgment as it stands after its affirmance by this court, and after the court below has rendered such judgment as the mandate of this court requires. Therefore, the interest allowed in this case is interest before final judgment, and is of the same character as the interest allowed before judgment in a suit against a collector where there is no writ of error. In both cases, when there is a final judgment, the principle applies, declared by this court in Erskine v. Van Arsdale, ubi supra, that it is to be presumed the government is always ready and willing to pay its ordinary debts. But where there is a judgment and a certificate of probable cause, and thus a case for payment out of the treasury under section 989, and then, by direction of the government, a writ of error is taken which operates as a stay, interest on the judgment during the stay ought to be allowed, and the statutes not only do not forbid such allowance but permit it. The expression 'interest and costs in judgment cases,' in the appropriation bills before referred to, clearly includes the interest in the present case, it being interest before final judgment. The application is denied.

107.US.711

1. By force of the act of the legislature of Louisiana, known as Act No. 3 of 1874, and the constitutional amendment adopted in that year, which provided that bonds should be issued under that act in exchange for valid outstanding bonds and warrants at the rate of sixty cents in the new bonds for one dollar of the old bonds and warrants, the State entered into a formal contract, the obligation of which it was forbidden by the Constitution of the United States to impair, and thereby stipulated with each holder of the new bonds so issued that an annual tax of five and one-half mills on the dollar of the assessed value of all the real and personal property in the State should be levied and collected, and the income therefrom applied solely to the payment of the bonds and coupons; that the tax levied by the act and confirmed by the Constitution should be a continuing annual tax until the bonds, principal and interest, were paid in full; that the appropriation of the revenue derived therefrom should be a continuing annual appropriation; and that no further authority than that contained in the act should be required to enable the taxing officers to levy and collect the tax, or the disbursing officers to pay out the money as collected in discharge of the coupons and bonds. 2. After the said act of 1874 was passed, and the constitutional amendment sanctioning it was adopted, sundry parties, citizens of another State, exchanged their old bonds for new coupon bonds executed pursuant to the requirements of that act, and demanded of the proper State officers payment of the coupons which fell due Jan. 1, 1880, and the application thereto of the funds collected under the levy imposed by the act. Payment was refused solely on the ground that it was forbidden by the third article of the State Debt Ordinance of the-new Constitution adopted July 23, 1879, post, p. 715; and the treasurer claimed to hold the funds only for the purposes for which they were appropriated by the terms of that Constitution. The parties then brought in the State court of Louisiana a suit for a mandamus against the auditor and treasurer of state and the other members of the board of liquidation, requiring them to apply the funds in the treasury derived from the taxes levied or to be levied to the retirement of the bonds, and to execute the said act according to its intent and purpose. They also brought in the Circuit Court against the same defendants a suit praying for an injunction forbidding them to recognize as valid said ordinance, and to oppose the full execution of said act and the constitutional amendment. The suit for mandamus was removed to the Circuit Court. Rdd, 1. That the ordinance forbade the payment of the interest due January, 1880, and withdrew from the officers of the State the means of carrying her contract into effect. 2. That the execution of the contract cannot be enforced, nor the relief sought be awarded, in a suit to which she is not a party, but which is brought against officers, who are merely obeying the positive orders of the supreme political power of the State. 3. That at the time the bonds were issued or since no statute or judicial decision authorized a suit against Louisiana in her own courts, nor can she be sued in the courts of the United States by a citizen of another State. 4. That the money in her treasury is her property, held by her officers, not in trust for her creditors nor as their agents, but as her servants, and that the courts cannot control them in the administration of her finances, and thus oust the jurisdiction of the political power of the State.

The legislature of Louisiana, at its session of 1874, by an act known as act No. 3 of 1874, provided for an issue of bonds, to be designated as consolidated bonds of the state, for the purpose of consolidating and reducing the floating and bonded debt. The bonds were to be payable to the bearer 40 years from January 1, 1874, and bear interest at the rate of 7 per cent. per annum, payable on the first day of July and the first day of January in each year. The amount was not to exceed in the aggregate $15,000,000. The governor, lieutenant governor, auditor, treasurer, secretary of state, speaker of the house of representatives, and a person to be elected by these officers as a fiscal agent of the state, were created a board of liquidation, with power to issue the bonds and exchange them for all valid outstanding bonds, and certain valid warrants on the treasury, at the rate of sixty cents in the new bonds for one dollar of old bonds and warrants. The bonds were to be signed by the governor, auditor, and secretary of state, and the coupons by the auditor and treasurer. Section 7 of the act was as follows: 'That a tax of five and a half mills on the dollar of the assessed value of all real and personal property in the state is hereby annually levied, and shall be collected, for the purpose of paying the interest and principal of the consolidated bonds herein authorized, and the revenue derived therefrom is hereby set apart and appropriated to that purpose, and no other; and that it shall be deemed a felony for the fiscal agent or any officer of the state or board of liquidators to divert the said fund from its legitimate channel as provided, and upon conviction the said party shall be liable to imprisonment for not more than ten years nor less than two, at the discretion of the court. If there shall during any year be a surplus arising from said tax after paying all interest falling due in that year, such surplus shall be used for the purchase and retirement of bonds authorized by this act; said purchases to be made by the said board of liquidation from the lowest offers, after due notice: provided, that the total tax for interest and all other state purposes, except the support of public schools, shall never hereafter exceed twelve and a half mills on the dollar. The interest tax aforesaid shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest; and the said appropriation shall be a continuing annual appropriation during the same period, and this levy and appropriation shall authorize and make it the duty of the auditor and treasurer, and the said board, respectively, to collect said tax annually, and pay said interest and redeem said bonds until the same shall be fully discharged.' By other sections it was provided that any judge, tax-collector, or any other officer of the state obstructing the execution of the act, or any part of it, or failing to perform his official duty, should be deemed guilty of a misdemeanor, and on conviction thereof punished; that each provision of the act should be, and was declared to be, a contract between the state of Louisiana and each and every holder of such consolidated bonds; that the tax-collectors should not pay over any moneys collected by them to any other person than the state treasurer; and that no court, or judge thereof, should have power to enjoin the payment of principal or interest of any of the bonds, or the collection of the special tax therefor. Immediately after the passage of this act the state adopted an amendment to its constitution, as follows: 'The issue of consolidated bonds authorized by the general assembly of the state, at its regular session in the year 1874, is hereby declared to create a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in no wise impair. The said bonds shall be a valid obligation of the state in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof or the levy and collection of tax therefor; to secure such levy, collection, and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury.' Under this authority, consolidated bonds to the amount of about $12,000,000 were issued. John Elliott, Nicholas Gwynn, and Henry S. Walker are the holders and bearers of these bonds to the amount of $20,000, and of unpaid coupons due January 1, 1880, to the amount of $78,900. The bonds, in accordance with the requirements of the act under which they were issued, are signed by the governor, auditor, and secretary of state, and the coupons by the auditor and treasurer. On the first day of January, 1880, a new constitution of Louisiana went into effect. A portion of that constitution, called the 'Debt Ordinance,' is in these words: 'STATE DEBT. 'Article 1. Be it ordained by the people of the state of Louisiana, in convention assembled, that the interest to be paid on the consolidated bonds of the state of Louisiana be and is hereby fixed at 2 per cent. per annum for 5 years from the first day of January, 1880, 3 per cent. per annum for 15 years, and and 4 per cent. per annum thereafter, payable semi-annually; and there shall be levied an annual tax sufficient for the full payment of said interest, not exceeding three mills, the limit of all state tax being hereby fixed at six mills: provided, the holders of consolidated bonds may, at their option, demand, in exchange for the bonds held by them, bonds of the denomination of five dollars, one hundred dollars, five hundred dollars, one thousand dollars, to be issued at the rate of 75 cents on the dollar of bonds held, and to be surrendered by such holders; the said new issue to bear interest at the rate of 4 per cent. per annum, payable semi-annually. 'Art. 2. The holders of consolidated bonds may at any time present their bonds to the treasurer of the state, or to an agent to be appointed by the governor,—one in the city of New York and the other in the city of London,—and the said treasurer or agent, as the case may be, shall indorse or stamp thereon the words, 'interest reduced to 2 per cent. per annum for five years from January 1, 1880, 3 per cent. per annum for 15 years, and 4 per cent. per annum thereafter: provided, the holder or holders of said bonds may apply to the treasurer for an exchange of bonds,' as provided in the preceding article. 'Art. 3. Be it further ordained, that the coupon of said consolidated bonds falling due the first day of January, 1880, be and the same is hereby remitted, and any interest taxes collected to meet said coupon are hereby transferred to defray the expenses of the state government.' Article 209 of the same constitution provides that 'the state tax on all property for all purposes whatever, including expenses of government, schools, levees, and interest, shall not exceed in any one year six mills on the dollar of its assessed valuation.' Elliott, Gwynn, and Walker demanded of the proper state officers payment of their coupons which fell due January 1, 1880, but such payment was refused, the auditor and treasurer stating 'that they could not comply with the request made of them, owing to the prohibition contained in article 3, state-debt ordinance of the constitution of the state of Louisiana, adopted twenty-third July, 1879, and recently promulgated.' All the taxes allowed by the new constitution have been levied for the year 1880, but no proceedings have been taken to levy and collect the five-and-a-half mill tax under the act of 1874. About $300,000 is in the treasury of the state, collected under the levy imposed by the act of 1874 to meet the coupons falling due January, 1880, but the treasurer refuses to apply it to the payment of the coupons, and claims to hold it only for the purposes to which it was to be appropriated by the terms of the new constitution. There are also taxes levied for former years under the act of 1874 which remain uncollected, and which are subject to future collection and payment into the treasury under the operation of the collection laws. In this condition of things, the appellants Elliott, Gwynn, and Walker, on the sixteenth of January, 1880, commenced a suit in equity in the circuit court of the United States for the eastern district of Louisiana, against the several officers of the state composing the board of liquidation, and the prayer of the bill is that it may be—— 'Ordered, adjudged, and decreed' that the act No. 3, of 1874, 'so far as your orator's interests hereinabove declared are concerned, was all the time from its passage, has been, and, at the time of the rendition of the decree herein prayed for, is a valid and subsisting law of the state of Louisiana; that the act aforesaid, the constitutional amendment of 1874, and the several bonds and coupons of interest held and owned by your orators as aforesaid, separately and together, constituted, were, and are good, valid, subsisting, and binding contracts between the state aforesaid and the bearers and holders of the consolidated bonds and coupons, the obligation of which contract cannot be lawfully or constitutionally impaired; and that, under and by virtue of such contract, your orators were and are entitled to take and enjoy all the rights, privileges, taxes, and moneys particularly set forth and mentioned in act No. 3, and the constitutional amendment of 1874, aforesaid; that so much of the aforesaid constitution of 1879 as alters, varies, modified, or changes, or assumes, purports, or attempts to alter, vary, modify, or change, the provisions of the said act of 1874, and the constitutional amendment of that year, especially article 208 of the constitution of the year 1879, and that portion of such constitution known and distinguished as the ordinance on 'state debt,' do impair the obligation of the contract hereinabove referred to; that the said parts and portions of such constitution are, therefore, violative of the constitution of the United States, and are absolutely null and void, and without the slightest force or effect whatever against complainants; and afford and offer no authority or warrant for the defendants, or any one or more of them, to make such disposition or application of any part or portion of the aforesaid taxes, and the proceeds thereof, collected and to be collected, as to enable the state, therewith, to defray the expenses of the state government, or to accomplish any purpose or purposes other than those prescribed in the aforesaid funding act, and constitutional amendment of 1874; that the defendants, and each of them, may be adjudged and decreed to replace and reinstate to the credit of said interest fund any moneys or funds that may have been diverted therefrom; * * * and that said defendants, and each and every one of them, may be peremptorily enjoined and restrained from recognizing as valid, against your orators, article 208 of the constitution of Louisiana,' and the 'debt ordinance,' and 'from ignoring the funding act and constitutional amendment of 1874, and from doing, and causing to be done, any act or thing whatsoever obstructing, preventing, or impeding, or tending, directly or indirectly, to obstruct, prevent, or impede, in the slightest degree, the prompt, full, and complete execution and enforcement of the act and constitutional amendment aforesaid; and, finally, that the said defendants, and each and every one of them, may be enjoined and restrained to such other and further extent, and in such additional way and manner, as the court may deem right and proper.' On the twenty-sixth of January, 1880, the same parties as relators filed a petition in a state court of Louisiana against the auditor and treasurer of state and the several members of the board of liquidation, being Louis A. Wiltz, the governor, Samuel McEnery, lieutenant governor, Allen Jumel, auditor, Edward A. Burke, treasurer, William A. Strong, secretary of state, Robert N. Ogden, speaker of the house of representatives, and the State National Bank of New Orleans, fiscal agent, for a mandamus requiring them—— 'To apply and pay to the extinguishment of the interest now due and payable upon the consolidated bonds of the state of Louisiana, or becoming due and payable upon said bonds, and to the redemption and retirement of such consolidated bonds, as are provided for and required by the aforesaid act No. 3 of the year 1874, any and all moneys and proceeds of the tax levied or fixed by said act now in the hands or subject to the control of the said defendants, or either one of them, or which have been in the hands or subject to the control of the said defendants, or either one of them, or which may come into their hands or become subject to the control of either of them, not already applied to the payment of interest upon the aforesaid bonds, or to the redemption and retirement of the bonds themselves, as provided for and required in and by said act No. 3;' and that they 'may furthermore be commanded and required to proceed, without delay, to collect the tax fixed or levied in and by the aforesaid act No. 3 of the year 1874, in the manner and to the extent contemplated by that statute, and to apply and pay all moneys realized from such tax to the discharge of the interest and redemption of the bonds issued under and by virtue of the aforesaid funding act No. 3, * * * until the principal and interest of such bonds be fully extinguished and discharged; and, finally, that the said defendants may severally be commanded and required to enforce the act herein above last referred to, and particularly to carry out, perform, and discharge each and every one and all the ministerial acts, things, and duties respectively required of them by the aforesaid act No. 3, according to the full and true intent and purport of that act.' This suit was afterwards removed into the circuit court of the United States for the eastern district of Louisiana. Upon final hearing the circuit court denied the relief prayed for in each of the suits, because, as stated in the conclusions of law which were filed in connection with the findings of fact, it appeared that the respondents were constitutional officers of the state, and had no relation to the funds collected, or to be collected, except as such officers; that they were clothed with no authority and charged with no duty to pay over or collect said funds to or in behalf of the relators and complainants, but, on the contrary, by the organic law of the state, under which their offices were created and exist, the provisions of which constitute their sole mandate, are prohibited from so doing. For these reasons it was concluded that the state was the party which, by its action in its original capacity through the people, had rendered the execution of its contract with the relator impossible through the instrumentality of its officers or functionaries, and that the question presented was political rather than judicial, and could not be adjudicated without calling the state to the bar of the court and subverting its entire financial basis, no matter how unjustly adopted and ordained. From a judgment and decree to that effect a writ of error and appeal were taken to this court. The two suits may properly be considered together here, as they were below, because they present substantially the same questions. We have no doubt it was the intention of the state of Louisiana to enter into a formal contract with each and every holder of bonds issued under the act of 1874, to levy and collect an annual tax of five and one-half mills on the dollar of the assessed value of all the real and personal property in the state, and to apply the revenue derived therefrom to the payment of the principal and interest of the bonds, and to no other purpose. By the obligation so entered into it was also agreed that the tax levied by the act and confirmed by the constitution should be a continuing annual tax until the bonds, principal and interest, were paid in full; that the appropriation of the revenue derived therefrom should be a continuing annual appropriation; and that no further authority than that contained in the act should be required to enable the taxing officers to levy and collect the tax, or the disbursing officers to pay out the money as collected in discharge of the obligation of the bonds. Whatever may be ordinarily the effect of a promise or a pledge of faith by a state, the language employed in this instance shows unmistakably a design to make these promises and these pledges so far contracts, that their obligations would be protected by the constitution of the United States against impairment. It is equally manifest that the object of the state in adopting the 'Debt Ordinance' in 1879 was to stop the further levy of the promised tax, and to prevent the disbursing officers from using the revenue from previous levies to pay the interest falling due in January, 1880, as well as the principal and interest maturing thereafter. The bonds and coupons which the parties to these suits hold, have not been reduced to judgment, and there is no way in which the state, in its capacity as an organized political community, can be brought before any court of the state, or of the United States, to answer a suit in the name of these holders to obtain such a judgment. It was expressly decided by the supreme court of the state in State v. Burke, 33 La. Ann. 498, that such a suit could not be brought in the state courts, and under the eleventh amendment of the constitution no state can be sued in the courts of the United States by a citizen of another state. Neither was there when the bonds were issued, nor is there now, any statute or judicial decision giving the bondholders a remedy in the state courts or elsewhere, either by mandamus or injunction, against the state in its political capacity, to compel it to do what it has agreed should be done, but which it refuses to do. These, then, are suits by creditors at large, of the class provided for in the act of 1874, to compel the officers of the state by judicial process to enforce the provisions of the act, when the state, by an amendment to its constitution, has undertaken to prohibit them from doing so, and when the court, if it requires an officer to proceed, cannot protect him with a judgment to which the state is a party. The persons sued are the executive officers of the state, and they are proceeded against in their official capacity. The money in the treasury is the property of the state, and not in any legal sense the property of the bond or coupon holders. If lost or destroyed, the loss will fall alone on the state or its agents, and the bondholders will be entitled to payment in full from other sources. True, the money was raised to pay this particular class of debts, and the agreement was it should not be used for any other purpose; but, notwithstanding this, the state has undertaken to appropriate it to defray the expenses of the government. In this way the state has violated its contract, and, if it could be sued, might perhaps be made to set aside its wrongful appropriation of the money already in hand, and raise more by taxation, if necessary. That the constitution of 1879 on its face takes away the power of the executive officers to comply with the terms of the act of 1874 cannot be denied. As against everything but the outstanding bonds and coupons, this constitution is the fundamental law of the state, and it is only invalid so far as it impairs the obligation of the contract on the faith of which the bonds and coupons were taken by their respective holders. The question, then, is whether the contract can be enforced, notwithstanding the constitution, by coercing the agents and instrumentalities of the state, whose authority has been withdrawn in violation of the contract, without having the state itself in its political capacity a party to the proceedings. The relief asked will require to officers against whom the process goes to act contrary to the positive orders of the supreme political power of the state, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared it shall not be done. The parties prosecuting the suits do not, in direct terms, ask for the payment of the bonds and coupons they hold. In fact, this seems to have been purposely avoided, for in the suit for mandamus the petition was amended before the hearing by striking out all that would have the effect of confining the command of the writ to such a payment, and left the prayer for an order requiring the use of the money raised under the act of 1874 for the redemption and retirement generally of all the bonds and coupons of the issue. In the suit in equity, while it was asked that the debt ordinance of 1879 might be declared invalid as against the complainants, payment of the amount due was only sought through the general administration of the finances in accordance with the provisions of the act of 1874. In neither of the suits was any inquiry to be instituted in respect to the particular bonds and coupons held by the plaintiffs, or any special relief afforded as to them. All that is asked will inure as much to the benefit of the other holders of similar obligations as to the particular parties to these suits. So that the remedy sought implies power in the judiciary to compel the state to abide by and perform its contracts for the payment of money, not by rendering and enforcing a judgment in the ordinary form of judicial procedure, but by assuming the control of the administration of the fiscal affairs of the state to the extent that may be necessary to accomplish the end in view. It is insisted, however, that the money in the treasury collected from the tax levied for the year 1879 constitutes a trust fund of which the individual defendants are ex officio trustees, and that they may be enjoined as such trustees from diverting it from the purposes to which it was pledged under the contract. The individual defendants are the several officers of the state, who, under the law, compose the board of liquidation. That board is, in no sense, a custodian of this fund. Its duty was to negotiate the exchange of the new bonds for the old on the terms proposed. It has nothing to do with levying the tax, collecting the money, or paying it out, further than by purchasing the bonds with any surplus there might be from time to time in the treasury over what was required to meet the interest. The provision in the law that it shall be the duty of the auditor, treasurer, and the board, respectively, to collect the tax, pay the interest, and redeem the bonds, evidently means no more than that the auditor and treasurer shall perform their respective duties under the general laws in the assessment and collection of the tax, and shall pay in the usual manner the interest and principal of the bonds as they respectively fall due, and that the board shall purchase and retire the bonds whenever there is a surplus that, under the law, is to be used for that purpose. The treasurer of the state is the keeper of the treasury, and in that way is the keeper of the money collected from this tax just as he is the keeper of other public moneys. The taxes were collected by the tax-collectors and paid over to the state treasurer,—that is to say, into the state treasury,—just as other taxes were when collected. The treasurer is no more a trustee of these moneys than he is of all other public moneys. He holds them, but only as the agent of the state. If there is any trust, the state is the trustee, and unless the state can be sued the trustee cannot be enjoined. The officers owe duty to the state alone, and have no contract relations with the bondholders. They can only act as the state directs them to act, and hold as the state allows them to hold. It was never agreed that their relations with the bondholders should be any other than as officers of the state, or that they should have any control over this fund except to keep it like other funds in the treasury and pay it out according to law. They can be moved through the state, but not the state through them. In this connection there is much that is instructive in the case of The Queen v. Lords Commissioners of the Treasury, L. R. 7 Q. B. 387. There money had been appropriated by parliament for the payment of costs of a particular character, and an application was made for a mandamus to compel the lords commissioners of the treasury to pay certain bills which had been properly taxed, but although the court was emphatic in its declaration that payment ought to be made, the writ was refused because the lords commissioners held 'the money as the servants of the crown, and no duty was imposed upon them as between them and the persons to whom the money was payable.' Lord Chief Justice COCKBURN, in his opinion, said, (page 394:) 'Though I quite agree that according to the appropriation act they (the lords commissioners) were bound to apply the money upon the vouchers being produced, and had no authority to retax these bills, still I cannot say that there is any duty which makes it incumbent upon them to do what I cannot hesitate to say they ought to have done, except as servants of the crown; because in that character they have received the money, and in no other.' And BLACKBURN, J., (page 399:) 'It seems to me that the obligation, such as it is, is upon her majesty, to be discharged through her servants, and you cannot proceed therefor against the servants.' So, here, the obligation is all on the state, to be discharged through its servants, and the money is held by the officers proceeded against in their character as servants of the state, and no other. There is nothing in any of the cases in this court that are relied on, which, to our minds, authorizes any such relief as is asked. In Osborn v. Bank of U. S. 9 Wheat. 738, which is the leading case and cited as authority in all the others, the object was to prevent money which had been unlawfully taken out of the bank by the officers of the state from getting into the treasury. The money was, in legal effect, stopped while passing from the bank to the treasury. The controlling facts are thus stated by Chief Justice MARSHALL in the opinion, (page 868:) 'But when we reflect that the defendants Osborn and Harper are incontestably liable for the full amount of the money taken out of the bank; that the defendant Currie is also responsible for the sum received by him, it having come to his hands with the full knowledge of the unlawful means by which it was acquired; that the defendant Sullivan is also responsible for the sum specifically delivered to him, with notice that it was the property of the bank, unless the form of having made an entry on the books of the treasury can countervail the fact that it was, in truth, kept untouched, in a trunk, by itself, as a deposit, to await the event of the pending suit respecting it,—we may lay it down as a proposition, safely to be affirmed, that all the defendants in the case were liable in an action at law for the amount of this decree. If the original injunction was properly awarded, for the reasons stated in the preceding part of this opinion, the money, having reached the hands of all those to whom it afterwards came with notice of that injunction, might be pursued, so long as it remained a distinct deposit, neither mixed with the money of the treasury, nor put into circulation. * * * The money of the bank had been taken, without authority, by some of the defendants, and was detained by the only person who was not an original wrong-doer, in a specific form; so that detinue might have been maintained for it, had it been in the power of the bank to prove the facts which are necessary to establish the identity of the property sued for.' Under this state of facts the order for its return involved no question of power to interfere with what was actually in the treasury. The officers stood in the place of a sheriff who had levied an execution on goods and was sued to test his right to keep them, and the principle applied in the decision is thus stated in the head-note of the report: 'A court of equity will interpose by injunction to prevent the transfer of a specific thing, which, if transferred, will be irretrievably lost to the owner, such as negotiable stocks and securities.' Thus the money seized was kept out of the treasury, because if it got in, it would be irretrievably lost to the bank, since the state could not be sued to recover it back. No one pretended that if the money had been actually paid into the treasury, and had become mixed with the other money there, it could have been got back from the state by a suit against the officers. They would have been individually liable for the unlawful seizure and conversion, but the recovery would be against them individually for the wrongs they had personally done, and could have no effect on the money which was held by the state. Certainly no one would ever suppose that by a proceeding against the officers alone, they could be held as trustees for the bank, and required to set apart from the moneys in the treasury an amount equal to that which had been improperly put there, and hold it for the discharge of the liability which the state incurred by reason of the unlawful exaction. In Davis v. Gray, 16 Wall. 203, the receiver of a land-grant railroad obtained an injunction against the governor and commissioner of the land-office of Texas to restrain them from incumbering, by patents to others, lands which had been contracted to the railroad company. The legal title was in the state, but the equitable title in the company. The specific tracts of land in dispute were, by the contract which had been made, segregated from the public domain and set apart for the company. The case rests on the same principle it would if patents had been actually issued to the company, and the state, through its officers, was attempting to place a cloud on the title by granting subsequent patents to others. In Board of Liquidation v. McComb, 92 U. S. 531, which arose under the same act of 1874 that we are now considering, the board of liquidation was enjoined, at the instance of bondholders, from admitting to the privileges of the compromise proposed by the state certain persons other than those originally provided for and on different terms. And this clearly because the board of liquidation was, by the very terms of the law, charged with the duty of exchanging the bonds specifically set apart by the contract for a particular purpose, and every bona fide bondholder, by accepting the compromise offered, became personally interested in securing the due administration of the trust which had thus been committed to the board. In fact, the board held the new issue of bonds in trust, and every one who gave up his old obligations and accepted the new in settlement became a beneficiary under the trust, and might act accordingly. In this case, however, there is no such trust. As has already been said, the board is charged with no duty in respect to the taxes, except in connection with the purchase of bonds whenever there are funds which can be used in that way. The auditor and treasurer are required to audit and pay the coupons as they are presented, but that does not make them trustees for the bondholders of the money in the treasury out of which the payment is to be made. They may draw on the fund raised to make the payment, but that is the extent of their official control over it. The law has never made it a part of their official duty to separate from the other moneys in the treasury that which was realized from the taxes in question, and hold it in trust for the bondholders. The state has contracted not to use this money in any other way than to pay the debt, but, as against the state, the officers have no right to say they will keep it for that purpose only. It may be, without doubt, easily ascertained from the accounts how much of the money on hand is applicable to the payment of this class of debts, but the law nowhere requires the setting apart of this fund any more than others from the common stock. In the treasury all funds are mingled together, and kept so until called for to meet specific demands. In the Arlington Case, decided at this term,* it was held that the officers of the United States, holding in their official capacity the possession of lands to which the United States had no title, could be required to surrender their possession to the rightful owner, even though the United States were not a party to the judgment under which the eviction was to be had. Here, however, the money in question is lawfully the property of the state. It is in the manual possession of an officer of the state. The bondholders never owned it. The most they can claim is that the state ought to use it to pay their coupons, but until so used it is in no sense theirs. Little need be said with special reference to the suit for mandamus. In this no trust is involved, but the simple question presented is whether a single bondholder, or a committee of bondholders, can, by the judicial writ of mandamus, compel the executive officers of the state to perform generally their several duties under the law. The relators do not occupy the position of creditors of the state demanding payment from an executive officer charged with the ministerial duty of taking the money from the public treasury and handing it over to them, and, on his refusal, seeking to compel him to perform that specific duty. What they ask is that the auditor of state, the treasurer of state, and the board of liquidation may be required to enforce the act of 1874, and 'carry out, perform, and discharge each and every one of the ministerial acts, things, and duties respectively required of them, * * * according to the full and true intent and purport of that act.' Certainly no suit begun in the circuit court for such relief would be entertained, for that court can ordinarily grant a writ of mandamus only in aid of some existing jurisdiction. Bath Co. v. Ames, 13 Wall. 247; Davenport v. Dodge Co. 105 U. S. 242. Our attention has been called to no case in the state courts of Louisiana in which such general relief has been afforded, and the jurisdiction of the circuit court was, therefore, in no way enlarged through the operation of the removal acts, even if this is a case which was properly removed,—a question we do not deem it necessary now to decide. The remedy sought, in order to be complete, would require the court to assume all the executive authority of the state, so far as it related to the enforcement of this law, and to supervise the conduct of all persons charged with any official duty in respect to the levy, collection, and disbursement of the tax in question until the bonds, principal and interest, were paid in full, and that, too, in a proceeding to which the state, as a state, was not and could not be made a party. It needs no argument to show that the political power cannot be thus ousted of its jurisdictian, and the judiciary set in its place. When a state submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the state has by its act of submission allowed to be done; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the courts, when a state cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power in their administration of the finances of the state. In our opinion to grant the relief asked for in either of these cases would be to exercise such a power. The decree in the suit in equity and the judgment in that for mandamus are affirmed. FIELD, J., dissenting. I am not able to concur in the judgment in these cases, and I will briefly state my reasons. I admit that the rule of the common law, that the sovereign cannot be held amenable to process in his own courts without his consent, is applied in this country to the state, under which designation are included the people within its territorial limits, in whom resides whatever sovereignty the state possesses. But they act and speak in this country, at least in times of peace, only through the constitution and laws. For their will we must look to these manifestations of it. If in that way they consent to suits, either directly against themselves by name, or against any of their authorized agents, there can be no reasons of policy or of law against issuing process in proper cases to bring them or their agents before the court. And if, in that way, that is, by their constitution or laws,—they direct their officers to do or omit certain things, in the doing or omission of which individuals are interested, and they provide appropriate remedies to compel or enjoin the performance of those things, there can be no reason why such remedies should not be resorted to when private rights are involved. And such is the case with respect to the subjects of the present suits. The state of Louisiana entered into certain engagements with her creditors; she embodied them in the most solemn form in a statute and in her organic law; she provided for the levying of a tax to pay those creditors; she prescribed certain duties for designated officers to perform in its collection and disbursement; she made it a felony for those officers to divert the fund thus raised to other purposes; she declared that no further legislation should be necessary for the collection of the tax or the appropriation of the proceeds, and that for the collection and payment of the tax the judicial power of the state should be exercised when necessary. The plaintiffs in these suits seek the enforcement of these engagements, and they are resisted merely because the engagements are repudiated by the state, and this court holds that it has no power to stay the repudiation. That the character and object of these suits may more clearly appear I will briefly give the history of the action of the state. Prior to 1874 Louisiana had contracted an indebtedness amounting to about $18,000,000. She asserted that a large portion of it had been fraudulently contracted; while the holders contended that their claims were valid, and that she was legally and equitably bound therefor. Under these circumstances, and with a view to determine the conflicting claims of the parties, and to liquidate and settle her indebtedness, she proposed to issue new bonds for 60 per cent. of the alleged indebtedness, upon the surrender of the claims; and to induce the surrender offered to make various enactments to secure the principal and interest of the new bonds. In 1874 she passed an act, known as act No. 3 of the laws of that year, entitled: 'An act to provide for funding obligations of the state by exchange for bonds; to provide for principal and interest of said bonds; to establish a board of liquidation; to authorize certain judicial proceedings against it; to define and punish violations of this act; to prohibit certain officers diverting funds, except as provided by law, and to punish violations therefor; to levy a continuing tax and provide a continuing appropriation for said bonds; to make a contract between the state and holders of said bonds; to prohibit injunctions in certain cases; to limit the indebtedness of the state and to limit state taxes; to annul certain grants of state aid; to prohibit the modification, novation, or extension of any contract heretofore made for state aid; to provide for the receipt of certain warrants for certain taxes; and to repeal all conflicting laws.' By this act the governor, lieutenant governor, auditor, treasurer, secretary of state, and speaker of the house of representatives, and a seventh person to be selected by them, called a fiscal agent, were constituted a board of liquidation, and were authorized to issue bonds of the state, to be called consolidation bonds, payable in 40 years, with interest at 7 per cent., and to exchange them for valid outstanding bonds and auditor's warrants at the rate of 60 cents on the dollar. The interest was to be payable semi-annually, on the first of January and July of each year, and for it coupons were to be annexed to the bonds. The act levied an annual tax of five and a half mills on the dollar of the assessed value of all real and personal property in the state, and declared that it should be collected for the purpose of paying the principal and interest of the consolidated bonds, and that the revenue derived therefrom was thereby 'set apart and appropriated to that purpose, and no other,' and that it should be a felony for the fiscal agent, or any officer of the state or of the board of liquidation, to divert the fund from its legitimate channel. It also declared that this tax, which is called an interest tax, 'shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest; and the said appropriation shall be a continuing annual appropriation during the same period, and this levy and appropriation shall authorize and make it the duty of the auditor and treasurer, and the said board respectively, to collect said tax annually, and pay said interest and redeem the said bonds until the same shall be fully discharged.' One section also provided 'that any judge, tax-collector, or any officer of the state obstructing the execution of this act, or any part of it, or failing to perform his official duty thereunder, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment not exceeding five years, and by fine not exceeding $2,000, at the discretion of the court.' *Another section enacted that each provision of the act should be, and it was declared to be, 'a contract between the state of Louisiana and each and every holder of the bonds' issued under the act. But, as though this act was not of itself a sufficient assurance of the unalterable purpose of the state to fulfill the promise it contained, an amendment to her constitution was proposed and adopted, of which the following is the first section: 'The issue of consolidated bonds, authorized by the general assembly of the state, at its regular session in the year 1874, is hereby declared to create a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in no wise impair. The said bonds shall be a valid obligation of the state in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor; to secure such levy, collection, and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury.' It would puzzle the wit of man to find anywhere in the legislation of the world a more perfect assurance of the fixed purpose of a state to keep faith with her creditors, or of a pledge of a portion of her revenues for their payment, or of the submission of her officers to the compulsory process of the judicial tribunals, if necessary, to carry out her engagements. With the knowledge that the federal constitution ordains 'that no state shall pass any law impairing the obligations of contracts,' Louisiana proclaims that each provision of the act shall be and is thereby declared to be a contract between her and each and every holder of the bonds issued under the act. And the constitutional amendment reiterates substantially the same thing by declaring that the issue of the consolidated bonds created a valid contract between the state and each and every holder of said bonds, 'which the state shall by no means and in no wise impair.' Under this act and the constitutional amendment, obligations of the state, amounting to over $12,000,000, were surrendered, and bonds taken for 60 per cent. of their amount, which are held all over the country. The complainants in the injunction suit, and the petitioners for the mandamus, hold for themselves and others, whom they represent, $900,000 of the bonds. The interest on them has not been paid, and yet a portion of the tax levied to meet such interest has been collected and is now in the hands of the treasurer of the state, one of the board of liquidation. The amount is admitted to be about $300,000, and as collections were being made when this admission was given, there is now, probably, a much larger amount in his hands. In both suits it is alleged that the treasurer and other officers of the state intend to use the funds thus collected for other purposes than the payment of the interest. In one of them an injunction is asked against such a perversion of the funds. In the other a mandamus is asked to compel the application of the funds to the payment of the interest, and also the collection of the taxes authorized by the act of 1874, and the constitutional amendment of that year, to meet further interest as it shall become due. Why should not both of these prayers be granted? The only answer offered is that in 1879 Louisiana adopted a new constitution, which reduced the interest on the consolidated bonds to 2 per cent. per annum for five years, to 3 per cent. for fifteen years afterwards, and to 4 per cent. thereafter, with a proviso that the holders of the bonds might take new bonds for 75 per cent. on the dollar, drawing 4 per cent. interest. The new constitution also directed that the coupon of the consolidated bonds falling due January 1, 1880, should be remitted, and that the interest taxes collected for its payment should be transferred to defray the expenses of the state government. The change in the rate of interest and the remission of the coupon falling due January 1, 1880, were made without the consent of the bondholders, or any consultation with them. Of course the new constitution, in these provisions, is a repudiation of the engagements of the act of 1874 and of the constitutional amendment of that year, and is a direct violation of the inhibition of the federal constitution against the impairment of the obligation of contracts. Is this inhibition against the repudiation by the state of her engagements of any efficacy? The majority of the court answer 'No.' I answer, adhering to the doctrines taught by a long line of illustrious judges preceding me, 'Yes, it is;' and, though now denied, I feel confident that at no distant day its power will be reasserted and maintained. In that faith I dissent from the judgment of my associates, and I shall continue to do so on all proper occasions, until the prohibition inserted in the constitution as a barrier against the agrarian and despoiling spirit, which both precedes and follows a breach public faith, is restored to its original vigor. The question whether the court will restrain the diversion of the funds in the hands of the treasurer, a member of the board of liquidation, is to be considered precisely as though the new constitution had never been adopted. The inhibition of the federal constitution is upon the state and not merely upon her legislature. All the authority which her people can confer, whether by constitutional enactment or legislative provision, is subject to the inhibition. Her people are at all times, under the constitution of the United States, subject to its restrictions, as they are entitled to its privileges. They cannot lawfully insert in any constitution or organic law provisions contravening that instrument. They cannot authorize their legislature to pass a bill of attainder, or an ex post facto law, or a law impairing the obligation of contracts, nor can they embody in their constitution clauses amounting to or operating as such enactments. Any such authority or clauses would be treated as nugatory and futile by all tribunals holding that the constitution of the United States is, what on its face it is declared to be, the supreme law of the land. Therefore, the new constitution of Louisiana stands before us, with respect to her past constracts, with no greater weight than would a legislative enactment containing similar provisions; and what the state authorizes to be done by her judicial tribunals against her officers, in the collection of the tax and the application of the moneys raised for the payment of the interest on the bonds, can be done by the judicial tribunals of the federal government when a case is transferred to them from a state court. If the new constitution had never been adopted there could be no question as to the power of the state courts to require that the moneys collected be applied to the payment of the interest. It would not only have been the duty of the board of liquidation to thus apply them, but it would have been a felony to refuse to do so. Now, whatever enactment, constitutional or legislative, impairs the obligation of the contract with the bondholders—that is, abrogates or lessens the means of its enforcement—is void. Therefore, the new constitution, as to that contract, is to be treated as though it never existed. As said by this court, without a dissenting voice, only two years ago, in Wolf v. New Orleans: 'Legislation producing this latter result, (impairment of the obligation of a contract, by abrogating or lessening the means of its enforcement,) not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the constitution, and must be disregarded, treated as though never enacted, by all courts recognizing the constitution as the paramount law of the land.' 103 U.S. 365. 'The prohibition of the constitution against the passage of laws impairing the obligation of contracts applies to the contracts of the state, and to those of its agents acting under its authority, as well as to contracts between individuals. And that obligation is impaired, in the sense of the constitution, when the means by which a contract at the time of its execution could be enforced—that is, by which the parties could be obliged to perform it—are rendered less efficacious by legislation operating directly upon those means.' Id. 367. No reason in law, therefore, any more than in morals, can be given why the mandates of the act of 1874 and the constitutional amendment of that year should not be carried out. There is nothing in the fact that the defendants are officers of the state. The books are full of cases where executive and administrative officers of a state have been required by the judiciary to do certain acts or been enjoined from doing them. And it has not been deemed an answer to the proceeding that the state was interested in the controversy. In Osborn v. Bank of U. S., decided in 1824, an injunction was sustained against the treasurer and auditor of Ohio to prevent the seizure of moneys belonging to the bank in payment of taxes levied under an unconstitutional law of the state. It was urged with much zeal that the state of Ohio, though not nominally a defendant, was the real party in interest, and that the suit was in fact against the state, which it was conceded could not be sued directly. But the court said, Chief Justice MARSHALL delivering the opinion: 'If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that as the real party cannot be brought before the court a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties; but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best-established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be enjoined in the suit.' 9 Wheat. 738, 842. These views, as was said in the opinion in the Arlington Case, lately before us, [1 SUP. CT. REP. 240,] have never been overruled; and the case is cited with approval in Davis v. Gray, decided in 1872, as establishing, among other propositions, that—— 'Where the state is concerned, the state should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were a party to the record. In deciding who are parties to the suit, the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind him as the real party in interest.' 16 Wall. 220. In Davis v. Gray the governor of Texas was enjoined from executing patents of certain lands, the sale of which her constitution had authorized, upon the supposition that the title of a corporation to them had been lost. In considering the right of a private party to maintain suit against the executive officer of the state, inasmuch as a suit could not be brought directly against the state, the court reaserted the doctrine announced in Osborn v. Bank of U. S. The objection suggested was also considered and disposed of in Board of Liquidation v. McComb, a case against these very officers, decided in 1875. There the board undertook to liquidate a debt contracted in reconstructing and keeping in repair levees on the Mississippi river, with consolidated bonds issued under the act of 1874, pursuant to the authority of a subsequent statute of the legislature. A citizen of Delaware holding some of the consolidated bonds contended that the levee debt was not one of the debts to fund which these bonds had been issued, and that the use of them for that purpose would defeat one of the benefits of the funding scheme. He therefore applied to the circuit court of the United States for an injunction to restrain the board from funding the levee debt with those bonds, and obtained it. On final decree the injunction was made perpetual, and this court affirmed the decree. 'In our judgment, therefore,' said this court, speaking by Mr. Justice BRADLEY, 'the court below was right in granting the injunction as to the consolidated bonds, if the defendants, occupying the official position they do, are amenable to such process. On this branch of the subject, the numerous but well-considered cases heretofore decided by this court leave little to be said. The objections to proceeding against state officers by mandamus or injunction are—First, that it is in effect proceeding against the state itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual, and a court cannot substitute its own discretion for that of executive officers, in matters belonging to the proper jurisdiction of the latter. But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an uncconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void.' 92 U. S. 541. Nor is there any force in the objection that the funds which the complainants and petitioners seek to reach are in the treasury of the state. They are appropriated by the law of 1874, and by the constitutional amendment of that year, to the payment of the interest on the consolidated bonds. The statute declares that the revenue derived from the taxes levied to pay the interest and principal of the bonds is 'set apart and appropriated to that purpose, and no other;' that 'the said appropriation shall be a continuing annual appropriation' until the bonds are paid or redeemed, principal and interest; and that 'it shall be deemed a felony for the fiscal agent, or any of ficer of the state or board of liquidation, to divert the fund from this channel.' The constitutional amendment declares that no further legislation than that specified therein shall be requisite for the appropriation of the proceeds of the taxes levied. Nothing more could be expressed to render the appropriation of the fund for the interest and principal of the bonds absolutely complete. The fund could not afterwards be diverted to any other purpose. The ministerial duty alone remained with the officer of the state having charge of the fund, wherever it might be, to apply it. There would seem to be an impression that to constitute a valid appropriation there must be some segregation of the amount appropriated from the general mass of money in the treasury, by which it is placed in packages, bags, or boxes, separate from the rest and set one side. But nothing of the kind is done, nor is it required to take the amount appropriated from the control of the fiscal officers of the state for other purposes. The appropriation is the legalization of the use of a designated amount in the treasury for a specific object, and an inhibition of its use in any other way. That is all. Henceforth, to meet the appropriation, the fiscal officers must retain the designated amount in the treasury, but not necessarily separated in packages, bags, or boxes from other funds. Their duty is purely ministerial—to hold it and pay it when called for. Were this not so there could be no appropriations of moneys before their collection, which it is the constant practice of legislative bodies to make, in view of anticipated revenue. When the moneys are collected and passed into the treasury, the appropriation is complete. They are, in the eye of the law, dedicated to a specific purpose, and the party in whose behalf the appropriation is made can compel its payment by mandamus, as in the case of appropriations for the salaries of judges, heads of departments, and others. That writ is the common and appropriate remedy to enforce such payment. Nor is there any weight in the objection that the officers of the state are called upon to enforce the collection of the tax. They are simply called upon to obey the mandates of the law and constitution of the state; both levy the tax, and designate its amount and the officers to collect it. The statute declares that the tax shall be a 'continual annual tax' until the bonds are paid or redeemed. The constitutional amendment declares that 'the tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the SAID ASSESSMENT AND COLLECTION, AND FOR SUCH PAYMENT FROM THe treasury.' here are provisions for levying, collecting, and appropriating, sufficient for these purposes, or language is incapable of expressing them. Whatever doubts might be entertained as to the authority of the legislature to make a levy and an appropriation to take effect in subsequent years, to meet the interest then accruing, they are removed by the constitutional amendment. There is nothing in the reason of the thing why the levy of taxes and the appropriations for all purposes should be made annually. They may be made for years in advance, if the constitution of the state so permits, in order to provide for a sinking fund, or to meet an expenditure for a work which may take years for its completion, or to meet, as in this case, future interest on its indebtedness. In some of the states the sessions of the legislature are biennial. The interval between the sessions might be increased, and there would be quite as much objection, so far as power is concerned, to the levy of taxes and the appropriations for those periods as for one year. The tax provided and the appropriation of its proceeds were made for many years by the amendment to the constitution, which expressed at the time the will of the people of the state. Nothing is to be done by the court, and nothing is asked of it, but to require that this will be obeyed. There is another reason suggested against the maintenance of the suits, not, as appears to me, very potential, but which affects the judgment of some able men—that the obligations of states are purely honorary, and cannot, therefore, be the subject of judicial cognizance. What is meant by honorary, so far as I can understand it, is that the obligations may or may not be fulfilled as the states will; in other words, that they are matters of convenience and not of duty, to be performed if the caprice of the hour approve, to be disregarded if the caprice of a subsequent hour disapprove. Or, to use other terms of explanation, as there is no mode of compelling a state, by suit directly against her, to observe her obligations, they must be deemed honorary; that is, just so far as they may be dishonored without redress to those who trusted to her good faith, they are to be deemed honorary obligations. Whatever merit this suggestion may possess, it can have no place for consideration here. When a state enters into the markets of the world as a borrower, she, for the time, lays aside her sovereignty and becomes responsible as a civil corporation. And although suits against her, even then, may not be allowed, her officers can be compelled to do what she then contracts that they shall do. And, as to these consolidated bonds, Louisiana has declared in her organic law that they created a valid contract between her and each and every holder, which she 'shall by no means and in no wise impair,' and that no court 'shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor,' but that, to secure them, her judicial power shall be exercised when necessary. These engagements are not imperfect obligations, mere honorary promises, which she can keep or break without accountability. If a state can successfully repudiate her solemn obligations, can obtain the surrender of a large portion of the demands of her creditors upon pledges for the more prompt payment of the remainder, and then set aside as worthless the pledges given, with no possibility of redress to the creditors, either by enforcement of the pledges or by a return of the surrendered demands, what confidence can be reposed anywhere? Public faith will be the synonym of public dishonesty; and, as I stated on a former occasion: 'If the government will not keep its faith, little better can be expected from the citizen. If contracts are not observed, no property will in the end be respected, and all history shows that rights of persons are unsafe when property is insecure. Protection to one goes with protection to the other, and there can be neither prosperity nor progress where this foundation of all just government is unsettled.' Sinking-fund Cases, 99 U. S. 767. On he argument much weight was placed upon the decision of the supreme court of Louisiana in State v. Burke and Hart v. Burke, and they are cited as authority to the point that no remedy by mandamus exists in the courts of the state to compel her officers to carry out her engagements; stated, however, in the opinion as deciding that there is no remedy by mandamus or injunction against the state in its political capacity,—a proposition which no one controverts. The cases were similar in their character and objects to those now under consideration; and it was there held that the courts of Louisiana have no jurisdiction to entertain any judicial proceeding, the object of which is to enforce the performance of a contract or obligation of the state against her will; that they have no authority to declare that a provision of her constitution does not express her will; and that they cannot annul a provision of that constitution on the ground that it impairs the obligation of a contract with the state, because such a contract can never become the subject of judicial enforcement against her will. In these conclusions the court gave no force to the constitutional inhibition as against the state. It would seem as though it was of opinion that, in all matters of contract, the inhibition applies only to legislative action. It says: 'We have been referred to authorities to the effect that where an officer pleads the authority of an unconstitutional law as a justification for the nonperformance or violation of his duty, this will not prevent the issue of the writ. 9 Wheat. 859; 16 Wall. 220. This may be so when the authority invoked is a statute under the state constitution; but it is different when the authority is an article in the constitution itself.' And the court proceeds to lay down the doctrine that clauses of the state constitution, though violative of the constitution of the United States, express the will of the state, and, as such, must be respected by her courts. In thus holding, the court would seem to have lost sight of two provisions of the federal constitution,—one, which declares that 'the constitution, and the laws of the United States which shall be made in pursuance thereof, * * * shall be the supreme law of the land;' and the other, which declares that 'the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.' These provisions, which govern in Louisiana as well as in other states, being overlooked, and the inhibition against the impairment of the obligation of contracts being limited to legislative action only on the part of the state, so far as concerns her own contracts, it is not surprising that the court held that the ordinance of repudiation and shame embodied in the new constitution was to be obeyed; that its conflict with the federal constitution was to be disregarded; and that what the state was prohibited from doing should be deemed the legal expression of her will, and enforced as such. The decision rests upon the theory that a proceeding against the officers of the state to compel them to do their duty is a suit against the state; and that her consent to suit against them has been withdrawn by clauses of the new constitution. But if those clauses never lawfully became a part of the new constitution—because the state under the federal constitution was incapable of enacting them—then her consent remains, and the present suits are simply attempts to compel her officers to do her lawful bidding. The state cannot speak through an enactment which contravenes the federal constitution. There can be no doubt that, but for the debt ordinance in the constitution of 1879, a mandamus or other compulsory process could have been issued by the courts of Louisiana to compel officers of the state, and of the board of liquidation, to execute the provisions of the act of 1874, and of the constitutional amendment of that year. The Code of Procedure of the state declares that the object of the writ 'is to prevent a denial of justice or the consequence of defective police, and it should, therefore, be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever,' (section 830;) and that 'it may be directed to public officers to compel them to fulfill any of the duties attached to their office, or which may be legally required of them,' (section 834.) These provisions are sufficiently comprehensive to embrace the present cases, and authorize compulsory process against the defendants to enforce the performance of the duties with which they are charged under the act and constitutional amendment of 1874. But, independently of them, the constitutional amendment of 1874 of itself invests the courts of the state with jurisdiction to issue such compulsory process, by the clause which declares that to secure the levy, collection, and payment stipulated, 'the judicial power shall be exercised when necessary;' and that means such power as properly belongs to judicial tribunals, to enforce the performance by public officers of duties imposed upon them by law. In Marbury v. Madison, 1 Cranch, 137, the conditions under which the writ will be issued are stated as clearly and happily as anywhere in the reports; and though the case is familiar to all, some of the observations of the great chief justice, who there spoke for the court, may properly be repeated. The The relator there, as is well known, had been appointed a justice of the peace for the District of Columbia; his commission was signed by the president and sealed by the secretary of the state, but its delivery to the relator was refused by a new secretary succeeding to the one who had signed the commission. The court held that the relator was entitled to his commission, and to withhold it was an act not warranted by law, but in violation of a vested right, and then proceeded to consider whether the laws of the country gave him a legal remedy. 'The very essence of civil liberty,' said Chief Justice MARSHALL, 'certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.' 'The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.' He then shows that there was nothing in the character of the case or the nature of the transaction which exempted it from legal investigation, or prevented the injured party from having redress; and, among other instances, he referred to the act of congress of 1794, concerning invalids, as one where the performance of duties imposed upon the heads of departments might be enforced. 'By the act concerning invalids, passed in June, 1794,' he said, 'the secretary of war is ordered to place on the pension list all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that when the law in precise terms directs the performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law.' 'If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.' If the act be one which involves discretion, the officer only conforms to the law in exercising that discretion. If it be one which calls for the consideration of evidence and the exercise of judgment, he must be left free to act upon his own conclusions. If, however, the act does not rest in his discretion; if it does not call for the exercise of judgment, but is a specific duty, imposed by the law, ministerial in its character, such as the delivery of a commission, the issue of a patent, the drawing of a warrant, or the payment of moneys appropriated, (the subject to which the appropriation is made not calling for the exercise of judgment in its selection,) and individuals have a direct pecuniary interest in the performance of that duty, the officer is as much subject to the compulsory process of the judicial tribunals as a private citizen. If it were not so our government would cease to be a government of laws, and the obloquy to which MARSHALL refers would be cast on the jurisprudence of the country. It is not, then, the office of the defendants which can preclude an inquiry into the propriety of calling upon the courts to enforce the performance of duties imposed by law upon them. The propriety of issuing the writ must be determined by the nature of the act to be done; whether it is one which they, under the law, are required to do. No interference is sought with the general financial affairs of the state. These she may manage as she chooses. What is sought is an injunction to prevent her officers from diverting to other purposes funds collected for the payment of her creditors, and a direction to them to proceed and carry out her command as to the collection hereafter of the specific tax levied by herself, and the disbursement of its proceeds. The fact that she subsequently made an unconstitutional attempt to rescind that command cannot affect its character or efficacy. In Woodruff v. Trapnall, 10 How. 190, decided in 1850, this court enforced a contract of the state of Arkansas in a proceeding by mandamus against one of her officers, compelling him to receive certain bills in satisfaction of a judgment recovered by the state, in the face of a subsequent statute prohibiting their receipt. In Hartman v. Greenhow, 102 U. S. 672, decided only two years since, this court, with but a single dissenting voice, enforced a contract of the state of Virginia in a proceeding by mandamus against one of her officers, compelling him to receive coupons of certain bonds for taxes, pursuant to the law under which the bonds were issued, although a subsequent law of the state had forbidden their receipt. And the supreme court of appeals of Virginia has, in similar cases, after mature consideration, asserted a like authority over officers of the state, never apparently imagining that the sovereignty of the commonwealth was at all assailed by judicial process compelling them to do their duty. The commonwealth has required no reminder from a federal tribunal to awaken her attention to the invasion of any of her rights of sovereignty. A number of other cases in this court and in the circuit courts might be cited to the same purport; and if the law respecting contracts with states, and rights of property acquired from states, is not to be subject to continual change, that law should remain undisturbed, having been recognized as sound for more than a third of a century. The doctrine of stare decisis is deemed of great importance on questions affecting private rights. Much more ought it to be respected and resolutely adhered to in determinations touching the limits of the powers of the federal and state governments, and the authority of each over the contracts of states with individuals. Nor can I perceive in what way the law, as thus pronounced, encroaches here upon any of the powers of the state. It is undoubtedly a matter of great importance, indeed of absolute necessity to wise government in this country, that there should be no interference with the rights of the states in the management of their local affairs, including in these the collection and disbursement of their revenues. But if a state contracts to do certain things, and in order that they may be performed subjects her officers to the control of the courts, and makes their refusal to carry out her pledges a felony, it cannot be justly contended that her reserved rights are at all invaded if her officers are judicially commanded to do what she says they shall do. No doctrine is here asserted in conflict with the exercise of any rightful authority of the state. All that is claimed is simply a right to compel her officers to obey her own enactments, such as were constitutionally passed, and thus became laws, and to disregard such as she had no power to pass. If the state is above the constitution of the United States; if the protection of that instrument does not extend to her engagements with individuals; if her power is as absolute as that of the parliament of England; if the theory of the federal constitution, that it binds states as well as individuals, is unsound; if it is not, as it declares itself to be, the supreme law of the land, then my position falls; but otherwise there is no answer to it; at least, none that I have been able to see. HARLAN, J., dissenting. Having a deep conviction that the decision of the court is in conflict with the spirit and tenor of its former decisions, subversive of long-established doctrines, and dangerous to the national supremacy as defined and limited by the constitution, I deem it my duty to dissent from it. That the bonds and coupons issued by Louisiana, in pursuance of the statute and constitutional amendment of 1874, are contracts within the meaning of that clause of the federal constitution which declares that no state shall pass any law impairing the obligation of contracts; that the provisions in its new constitution, known as the debt ordinance of 1879, were intended to impair, and, if enforced, do impair, the obligation of those contracts; and that such ordinance is, therefore, a nullity as against bondholders who do not accept its terms,—are propositions so manifestly correct as not to require argument in their support. Indeed, I understand the court, substantially, to concede them to be sound. As the constitution of the United States is the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding,' I had supposed that all state action, whether by legislative provision or constitutional enactment, must be disregarded when in conflict with that law. Yet this court holds that it cannot enforce nor restrain the agents of a state from destroying the obligations of her contract with citizens, upon the ground, mainly, that such relief will require them, in the discharge of their official duties, to disobey the orders of what is denominated the supreme political power of that state. The court, it seems to me, in effect, adjudges that the defendants cannot be coerced by the courts of the Union to disregard unllifying enactments of their state, although such coercion, if employed, would only be for the purpose of enforcing the rightful authority of the constitution, It appears upon the very face of these proceedings, and is not to be disguised, that those officers refuse to perform purely ministerial duties, solely because the will of the state is, with them, paramount, and to be obeyed, although thereby they destroy rights guarantied by the supreme law of the land. To state the proposition in another from: Here are contract rights which, but for the nullifying provisions in the new constitution of Louisiana, the courts (as I will presently show) would unquestionably protect by the process of injunction, and also by mandamus against the officers of the state compelling them to discharge plain official duties, requiring in their performance no exercise of discretion. Now, however, it is determined—if I do not misapprehend the decision that the judicial arm of the nation is hopelessly paralyzed in the presence of an ordinance destructive of those rights, and passed in admitted violation of the constitution of the United States. A state—which 'cannot be viewed as a single, unconnected, sovereign power,' but is a member of the Union under a constitution, the supremacy of which all must acknowledge—assumes to release its officers from the duty of obeying important provisions of that constitution; and this court, it would seem, holds that it has no power, as against such hostile action of the state, and in cases like these, to require those officers to respect private rights guarantied by such provisions. 1. What are the terms of the admitted contract between Louisiana and the holders of the consolidated bonds? By the statute of 1874 a fixed annual tax is levied for the purpose of paying the principal and interest of the bonds authorized to be issued; the revenue therefrom is thereby 'set apart and appropriated to that purpose and no other;' it is made a felony for any officer to divert it from that purpose; the interest tax is declared to be a continual annual tax until the bonds, principal and interest, are paid or redeemed; the appropriation is made a continuing annual one during the same period; and the levy and appropriation, it is declared, shall authorize and make it the duty of the auditor and treasurer and the board of liquidation, respectively, to annually collect the tax, pay the interest, and redeem the bonds until they are fully discharged. Each provision of the act is declared to be a contract between the state and each holder of bonds; it is made a misdemeanor for any judge, tax-collector, or other officer to abstruct the execution of any part of it, or to fail to perform his official duty; tax-collectors are inhibited from paying over moneys so collected to any other person than the state treasurer; and it is provided that no court or judge of the state shall have power to enjoin the payment of the principal or interest of the bonds or the collection of the special tax therefor. These provisions were embodied in the constitution of Louisiana, by an amendment adopted in 1874, and, with a view of facilitating the sale of the bonds, provided for in the act of that year, it declares that such issue creates 'a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in nowise impair;' that 'no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the taxes therefor;' that 'to secure such levy, collection, and payment, the judicial power shall be exercised when necessary;' that the tax required for the payment of the principal and interest of such bonds 'shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due; and, lastly, 'that no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury.' With these statutory and constitutional provisions in force, the state issued bonds to the amount of about $12,000,000, and taxes were assessed, collected, and paid over to the state treasurer solely for the purpose of meeting their interest. Of the amount collected to pay coupons maturing January 1, 1880, about $300,000 are in the state treasury. The state officers refuse to apply the mony for that purpose, or to take any steps towards further collections, as enjoined by the statute and constitution of 1874. 2. What has the state done that impairs the obligation of her contracts? By her debt ordinance the coupons falling due the first of January, 1880, are 'remitted' without the consent of creditors, and the interest tax already collected is therein directed to be used exclusively for the payment of the expenses of the state government. Unless the holders of consolidated bonds are paid out of this money, raised for their benefit exclusively, and unless future collections are made as required by the contract, they will be wholly without remedy, and their bonds will cease to have any value. Plainly that ordinance is a breach of the plighted faith of the state. The financial world, as we have seen, was assured by legislative provision and constitutional enactment that what the state officers now propose to do should never be done; that those who took these bonds might rely upon a fixed annual levy to meet the principal and interest; that all money thereby raised should be applied exclusively to that purpose; and that not only the officers of the state should assess, collect, and pay as the contract stipulates, but that the power of the judiciary should be exercised, whenever necessary, to enforce its obligation. These laws, in their substantial provisions, are as binding on the state, and are as much a part of the contract, as if those provisions had been set forth in its stipulations. McCracken v. Hayward, 2 How. 613; Bronson v. Kinzie, 1 How. 311; Walker v. Whitehead, 16 wall. 317; Planters' Bank v. Sharp, 6 How. 327; Edwards v. Kearney, 96 U. S. 607; Louisiana v. New Orleans, 102 U. S. 206. It cannot be said that the state has any more right by law it impair the obligation of its contracts than it has, by law, to impair the obligation of contracts between individuals. It has long been the settled doctrine of this court that contracts with states are as fully protected by the constitution against impairment by state law as contracts between individuals. Providence Bank v. Billings, 4 Pet. 514; Green v. Biddle, 8 Wheat. 1; Woodruff v. Trapnall, 10 How. 190; Wolff v. New Orleans, 103 U.S. 358. 3. If the debt ordinance of Louisiana is in violation of the constitution of the United States and therefore a nullity as against the holders of consolidated bonds,—if the latter are entitled by the terms of their contract to be paid out of the moneys collected for their benefit and to have further collections made,—is there any mode, known to the law, by which their rights can be protected? My brethren of the majority answer this question in the negative when they adjudge that no relief whatever can be given in either of these suits. One is a suit in equity commenced in the circuit court of the United States by holders of consolidated bonds to prevent, by injunction, officers of the state from using the proceeds of taxes already raised under the statute and constitution of 1874, for any purpose other than that for which they were collected and paid to the state treasurer. In the other suit, the plaintiffs, holders of consolidated bonds, and citizens of New York, ask a mandamus against the state officers compelling the application of the moneys so collected to the payment of their coupons, and also the collection of taxes to meet future interest as it becomes due. Some comment is made upon the extended nature of the relief asked by plaintiffs. It is sufficient to remark that the court is never bound to give relief to the full extent demanded; and all relief is not to be denied because more is asked than the court will grant under any circumstances, or in the particular case. And there is no ground, I submit, for the suggestion that granting relief would require the administration, by the court, of the general finances of the state. What should be done, if properly it may be, is, by necessary orders, to prevent the officers of the state from depriving creditors of moneys which by express contract have been set apart and appropriated exclusively to the payment of their claims. There is no obstacle to the payment out of that fund, except the prohibition in the void debt ordinance of 1879. It is admitted that it can be easily ascertained from the accounts how much of the money in the treasury is applicable to this class of debts. Indeed, it appears from the opinion in Newman v. Burke, hereafter referred to, that the treasurer and fiscal agent of Louisiana held within their control, when these suits were commenced, all the moneys raised under the statute and constitution of 1874 to meet the interest falling due January 1, 1880. They have in their hands more than enough to pay the coupons of January 1, 1880, held by the parties now before the court. Further,—a fact most significant in view of the suggestion that these moneys are mingled with other moneys in the state treasury, the interest fund created to pay coupons maturing January 1, 1880, were, by an act of the general assembly of Louisiana, approved January 4, 1882, directed to be invested in United States bonds. Acts La. 1881, p. 50. And it is not pretended that payment from that fund will produce the slightest confusion in the treasurer's accounts, or involve the use of moneys raised for other and distinct purposes. If any confusion ensues from such an application of these moneys, it would be only of that kind which arises when the law prevents a repudiating debtor from misappropriating funds, in his hands, that have been dedicated to a specific purpose. It is apparently urged, as an obstacle in the way of relief, that plaintiffs do not seek to have the proceeds of these taxes applied specially to the payment of their claims, but ask such orders as will enable all holders of consolidated bonds to participate in the distribution of the moneys raised under the statute and constitution of 1874. Had the application for mandamus sought the application of the moneys solely to pay the coupons held by the plaintiffs, it might, perhaps, have been urged as ground for its refusal that each bondholder had an interest in the fund so created. Boyer v. State Treas. 32 La. Ann. 177. If the relief asked cannot be given for the benefit of all holders of consolidated bonds, there would seem to be no difficulty in restricting payments to such as are actually before the court in person or by representation. It is, however, proper to say that notwithstanding the criticisms made by the court upon the nature and extent of the relief asked, I do not feel authorized to infer from its opinion that relief would be given to the parties before it, had they asked payment only of their coupons. The opinion seems to proceed upon the broad ground that, as Louisiana is not directly suable in its corporate capacity, the courts of the Union cannot reach its agents employed, under its orders, in the work of destroying the contract rights of plaintiffs. 4. The these suits forbidden by the eleventh amendment of the federal constitution, which declares that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state? I understand the court, in effect, if not in terms, to hold that they cannot be maintained without violating that amendment. The first authority cited in support of that view is The Queen v. Lords Com'rs of the Treasury, L. R. 7 Q. B. 387. It appears that by an act of parliament a round sum was appropriated to the crown to be used in paying costs incurred in prosecutions at assizes and quarter sessions in England, formerly paid out of county rates. Bills of costs having been passed by local officers, certain items were disallowed and others reduced by the lords of the treasury. Subsequently a rule went against the latter to show cause why a writ of mandamus should not issue compelling them to pay these bills out of the funds appropriated to the crown for such purposes. The judges, although of opinion that the defendants should be governed by the taxation of the local officers, declined to grant the writ. The question, said COCKBURN, C. J., was 'whether the lords commissioners of the treasury, when this money got into their hands, are bound to apply it as servants of the crown, or as the servants of the parliament who voted the money.' Said BLACKBURN, J.: 'The question remains whether there is any statutable obligation cast upon the lords of the treasury to do what we asked to compel them to do by mandamus, namely, to issue a minute to pay that money; because, it seems to me clear that we have a right to grant a mandamus if there is such a statutory obligation, particularly when the application is made on behalf of persons who have a direct interest in the matter,' etc. Similar declarations were made by the other judges. They all concurred in denying the writ upon the ground that the money was voted, not to named officers to be by them applied to a designated purpose, but as 'a supply to the crown;' that the officers who distributed it for the purposes named acted as servants of the crown, not as servants of parliament; that a suit against those officers was therefore one against the sovereign, whom, said Chief Justice COCKBURN, the court of queen's bench had no power, even in appearance, to command. It seems to me that case furnishes no support for the suggestion that these are suits against the state, simply because they are brought against its officers. It does not conflict with the proposition that the state treasurer can be compelled to apply the proceeds of these taxes as stipulated in the statute and constitution of 1874, which were his sole authority to receive them. Here there is a statutable obligation upon him to pay the coupons as they matured. And to that is added the obligation imposed by that constitution, which, in terms, declares that the proceeds of taxes collected under the act of that year 'shall be paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due,' without further legislative authority. These obligations remain upon the officer, unless it be that the debt ordinance, although unconstitutional and void, has discharged them. Had parliament, instead of the act involved in the case cited, passed one directly imposing upon the defendants the duty of paying out of moneys appropriated for that purpose a certain class of claims, it is manifest that the court of queen's bench would have compelled them, by mandamus or other process, to perform that duty. In the case supposed there would have been a statutable obligation which the court would not have permitted the defendants to evade on the pretext that they were officers under the crown. This distinction is well illustrated in Grenville-Murray v. Farl of Clarendon, L. R. 9 Eq. 20. There the plaintiff sought a decree for the value of certain services alleged to have been rendered by him in the diplomatic service. He claimed that he was entitled to be paid out of certain money voted by parliament to the foreign office. Lord ROMILLY, M. R., said: 'It [the money so voted] is not paid in trust for any particular person. The case that was cited was to this effect: that if parliament votes a sum of £1,000 to John Smith, and the treasury devote in their books the payment of that sum to other purposes, then a mandamus will lie to the treasury in order to pay that £1,000 to John Smith. But there is nothing of the sort here. Parliament has merely voted certain sums to her majesty, and of these sums £600,000 are to be applied to the foreign office. The distribution of that amount is left to the officers of the foreign office, to apply in such a manner as is most subservient to her majesty's service and to the due support of the foreign office, and there is nothing whatever to connect the plaintiff with a penny of this money in any aspect. It is impossible for me, therefore, in that state of things, to say that there is any trust for him.' There is another consideration which strengthens this position; that is, the supremacy of the constitution of the United States over state constitutions and state laws. To the duty imposed by the statute and constitution of 1874 upon its officers, there is superadded the duty imposed by the supreme law of the land not to regard as binding any state enactment which impairs the obligation of contracts. If the case cited from the queen's bench were susceptible of a different construction, it should not have controlling influence. Here no such relations exist between the executive and judicial departments as exist in England between the crown and the courts. This was shown in the elaborate opinion of Mr. Justice MILLER, speaking for the court in the Arlington Case. That was ejectment to recover real estate in the actual possession of officers who claimed it, not in any personal right, but for the United States—property used and occupied as a cemetery for the dead soldiers of the Union. It was contended that a suit against officers of the United States, having for its object to disturb their possession, was a suit against the government. In support of that position numerous cases were cited from the English courts which held that a suit could not be maintained against officers of the crown. But we held that upon such a question but little weight should be given to those adjudications; that there is a vast difference in the essential character of the two governments in reference to the source and depositaries of power; that while in England the crown, the fountain of honor, cannot be disturbed in its possession of property by process directed against its officers or agents, 'under our system the people, who are their subjects, are sovereign;' that 'their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch;' that 'the citizen here knows no person, however near to those in power, or however powerful in himself, to whom he need yield the rights which the law secures to him when it is well administered;' that 'when he, in one of the courts of competent jurisdiction, has established his right of property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.' Said the court further in that case: 'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who, by accepting office, participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.' In that case the court reaffirms the doctrines of Osborn v. Bank of U. S. 9 Wheat. 738. The latter was a suit to recover moneys which officers of the state of Ohio, in conformity with its statutes, had illegally taken from a bank of the United States. The suit being against the officers of the state, the objection was taken that it could not be sustained without the state itself being a party; that the state could not be sued; consequently, it was argued, the relief prayed—the restoration of the money—could not be granted. But to that objection the court, speaking by Chief Justice MARSHALL—and this language is quoted approvingly in the Arlington Case, [1 SUP. CT. REP. 240,]—said: 'If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested by made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real plaintiff, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversice of the bestestablished principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit.' The decision in that case has not been heretofore questioned in this court. It seems to establish, upon grounds which cannot well be shaken, that a suit against state officers, to prevent a threatened wrong to the injury of the citizen, is not necessarily a suit against the state within the meaning of the eleventh amendment of the constitution; for, said the chief justice, 'the eleventh amendment, which stitution; for, said the chief justice, 'the eleventh amendment, which restrains the jurisdiction granted by the constitution over suits against states, is, of necessity, limited to those suits in which a state is a party to the record.' Here the state is not a party to the record. Here, only officers of Louisiana are parties defendants; and the relief asked is that they be required to perform purely ministerial duties imposed upon them by the statute and constitution of 1874, whose provisions, as respects the matters now in issue, are still in force and obligatory, because never affected, modified, or repealed, otherwise than by a debt ordinance, subsequently adopted, conceded to be in conflict with the constitution, and therefore absolutely void. There are other decisions of this court still more directly in point. The leading one is Davis v. Gray, 16 Wall. 204. In that case it appears that the state of Texas made a grant of lands to a railroad company, upon the basis of which bonds were issued known as landgrant mortgage bonds. They were sold in large numbers, both in this country and Europe. Subsequently the state, by provisions of its statutes and constitution, attempted to repudiate and nullify its contract; and, in pursuance thereof, its officers proposed to issue patents to others for a part of the lands embraced in this grant. Thereupon a suit in equity was instituted in the circuit court of the United States against the governor and land-office commissioner of Texas, to prevent them from issuing patents for the lands or any part of them. The state was, of course, not made a party on the record. The bill was demurred to upon the ground that she could not be sued, and that the suit, being against her officers, was one, within the meaning of the constitution, against the state. The demurrer was overruled, and the relief asked was given. Touching the question of jurisdiction, the court, speaking by Mr. Justice SWAYNE, stated these principles as having been announced in Osborn v. Bank of U.S.: (1) That a circuit court of the United States, in a proper case in equity, may enjoin a state officer from executing a state law in conflict with the constitution, or a statute of the United States, when such execution will violate the rights of the complainant. (2) Where the state is concerned, the state should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were a party to the record. (3) That in deciding who are parties to the suit the court will not look beyond the record. Making a state officer a party, said the court, does not make the state a party, although her laws prompt his action, and the state stands behind him as the real party in interest. It was in conformity with those doctrines that the relief asked in Davis v. Gray was given. See, also, Vattier v. Hinde, 7 Pet. 263-4; Louisville R. Co. v. Letson, 2 How. 551; 2 Story, Const. § 1685; 1 Kent, Comm. 351. In part upon the authority of Davis v. Gray and Osborn v. Bank of U. S., this court, in Board of Liquidation v. McComb, 92 U. S. 538, maintained the right of a holder of consolidated bonds to a decree against the officers of the state of Louisiana, who are here defendants, constituting the board of liquidation, preventing the use of such bonds for the payment of a debt due from the state to a levee company. The proposed action of the board was based upon a statute passed March 2, 1875. So that the suit had for its object to prevent state officers, charged with the execution of the latter act, from carrying out its provisions. It never occurred to this court that the suit was, for that reason, one against the state within the meaning of the constitution. Upon the general question whether the defendants, being officers of the state, were amenable to process from a federal court, Mr. Justice BRADLEY, speaking for this court, observed: 'On this branch of the subject the numerous and well-considered cases heretofore decided by this court leave little to be said. The objections to proceeding against state officers by mandamus or injunction are—First, that it is, in effect, proceeding against the state itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such case, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void. Osborn v. Bank of U. S. 9 Wheat. 859; Davis v. Gray, 16 Wall. 226.' Upon these grounds the decree of the circuit court was affirmed, so far as it prohibited the debt due the levee company from being funded in consolidated bonds. Such use of them was deemed an impairment of the contract rights of those who were entitled to receive them. It seems to me impossible, in view of our decision in McComb's Case, apart from previous decisions upon which it was founded, to hold that these suits are forbidden by the eleventh amendment of the federal constitution. In that case we have adjudged that there is power in the courts of the Union, in a suit by an individual against state officers, to prevent them, in execution of an unconstitutional statute, from using these consolidated bonds for purposes inconsistent with the contract under which they were issued. In these cases it is determined that those courts are powerless, in suits against such officers, to prevent the misapplication of moneys collected for the purpose of meeting the interest on those bonds; and this, in part, upon the ground that the relief asked will require the officers, who have charge of those moneys, to disregard the confessedly void orders of the supreme political power of the state. It may be asked, when before has this court found the unconstitutional mandate of a state to be an obstacle in the way of compelling her officers to respect rights of contract, the obligations of which are protected against impairment by any law of the state? Of what value is the contract clause of the federal constitution if it cannot be enforced against hostile provisions of a state constitution? This court said, in Dodge v. Woolsey, 18 How. 360, that 'a change of constitution cannot release a state from contracts made under a constitution which permits them to be made;' in Jefferson Branch Bank v. Skelly, 1 Black, 448, that a contract between Ohio and a bank in that state 'was entitled to the protection of the constitution of the United States against any law of the state of Ohio impairing its obligation;' in Railroad Co. v. McClure, 10 Wall. 515, that 'the constitution of a state is undoubtedly a law,' within the meaning of the contract clause of the constitution, and that 'a state can no more do what is thus forbidden by one than by the other—there is the same impediment in the way of both;' in White v. Hart, 13 Wall. 652, that 'it is well settled by the adjudications of this court that a state can no more impair the obligation of a contract by adopting a constitution than by passing a law—in the eye of the* constitutional inhibition they are substantially the same thing;' and in Gunn v. Barry, 15 Wall. 625, that the constitution of the United States 'is above and beyond the power of congress and the states, and is alike obligatory upon both; a state can no more impair an existing contract by a constitutional provision than by a legislative act; both are within the prohibition of the national constitution.' Why should these established doctrines of the court be overruled, as, for all practical purposes, they are, by the judgment this day rendered? The constitution declares that it shall be the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding.' Its mandate, in that respect, is addressed alike to the judges of the federal and state courts, for it declares that 'the judges in every state shall be bound thereby.' And, as is said in Dodge v. Woolsey, 'to make its supremacy more complete, impressive, and practical, that there should be no escape from its operation, and that its binding force upon the states and the members of congress should be unmistakable, it is declared that 'the senators and representatives, before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by an oath or affirmation to support this constitution.' Nor can I agree that the officers of the state—if the relief here asked be granted—cannot be protected against any subsequent action of the state. If proceeded against because of their compliance with the judgments of the courts of the Union, the suit can ultimately be brought here for review. Upon the general question of the power of a circuit court to grant a mandamus against state officers, there are some propositions announced by the court which should be examined. The fact is mentioned that the coupons held by plaintiffs have not been reduced to judgment, and it is said that a circuit court, in exercising its original jurisdiction, can ordinarily grant a writ of mandamus only in aid of some existing jurisdiction. As the state cannot be sued as a party defendant, to say that a judgment for the amount of the coupons is a condition precedent to a mandamus is only another form of saying that there is no remedy whatever to prevent the misapplication of the moneys raised under the contract and by virtue of the statute and constitution of 1874. The demands of the plaintiffs are not disputed, except upon the ground that the debt ordinance has assumed, without the consent of the state's creditors, to remit the interest falling due January 1, 1880, and to divert the funds raised to meet it. The genuineness of the bonds and coupons is not questioned. The case, therefore, comes within the rule, explicitly laid down in McComb's and other cases, that mandamus will lie to compel the performance by a public officer of a plain ministerial duty, requiring no exercise of discretion. Such a remedy is absolutely essential for the protection of the rights here claimed. Upon this question, reference is made by the court to Bath Co. v. Amy, 13 Wall. 247, and Davenport v. Dodge Co. 105 U. S. 242. In the first of those cases it was decided that a circuit court had no power, under the act of 1789, to issue a writ of mandamus except where necessary or ancillary to the exercise of its jurisdiction. And that doctrine was reaffirmed in Davenport v. Dodge Co., upon the authority of Bath Co. v. Amy, but without any question being raised in the former case as to the power of a circuit court to issue writs of mandamus since the act of March 3, 1875. It will be found that the decision in Bath Co. v. Amy was based upon McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 601; and Kendall v. U. S. 12 Pet. 584. In McIntire v. Wood a circuit court was held to have authority to issue such writs only when necessary to the exercise of its jurisdiction. But it was said: 'Had the eleventh section of the judiciary act [the one declaring what suits shall be within the original cognizance of circuit courts] covered the whole ground of the constitution, there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising under the laws of the United States, and the fourteenth section of the same act would sanction the issuing of the writ for such a purpose. But although the judicial power of the United States extends to cases arising under the laws of the United States, the legislature have not thought proper to delegate the exercise of that power to its circuit courts, except in certain specified cases.' In Kendall v. U. S. the previous cases were held to decide that the writ was appropriate to compel the performance of a ministerial act, necessary to the completion of an individual right arising under the laws of the United States. 12 Pet. 616, 617. In all the cases prior to Bath Co. v. Amy the want of power in a circuit court to issue the writ, in the first instance, and in advance of a judgment establishing the rights of the parties, was put distinctly upon the ground that the whole judicial power of the United States had not been delegated to the circuit courts. In Kendall's Case, however, the power of the circuit court, in the District of Columbia, to compel the postmaster general by mandamus to perform a duty enjoined by an act of congress, was sustained, because, differently from the circuit courts in the several states, its jurisdiction then extended to all cases in law or equity arising under the laws of the United States. Now, it is apparent that the act of March 3, 1875, supplies what was said in McIntire v. Wood and McClung v. Silliman to be wanting. It substantially 'covers the whole ground of the constitution.' It invests the circuit courts of the United States with original jurisdiction, and with jurisdiction by removal from the state courts, of all suits at law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority; or in which the United States are plaintiffs or petitioners; or in which there is a controversy between citizens of different states; or a controversy between citizens of a state and foreign states, citizens, or subjects; or a controversy between citizens of the same state claiming lands under grants of different states. It seems to me entirely clear that since the enlargement, by the act of March 3, 1875, of the jurisdiction of the circuit courts, they have power, in the first instance, and in advance of a judgment to issue a writ of mandamus, to compel the performance of purely ministerial acts, requiring no exercise of discretion, and which are necessary to the protection or completion of an individual right arising under the constitution or laws of the United States. Unless the circuit court can interfere, by injunction, to prevent the officers of the state from doing what they propose to do, and, by mandamus, to compel them to perform the ministerial acts required by the statute and constitution of 1874, then its new and enlarged jurisdiction is of no practical value in any case where a state determines to repudiate its contracts and to enforce ordinances impairing their obligation. The power has always existed in those courts to issue such writs, not specifically provided by statute, as 'may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' 1 St. 81, 334; Rev. St. § 716. Jurisdiction to hear and determine a suit arising under the constitution and laws of the United States carries with it the power to issue either a writ of mandamus or a writ of injunction, or both, when essential to the protection and enforcement of rights involved in that suit. In such cases the writ is, in every legal sense, not simply necessary, but vital to the exercise of the jurisdiction granted. It must also be observed that the mandamus suit was commenced in an inferior court of the state, and thence removed into the circuit court of the United states. If the power of the latter depended upon the question whether the state court could, by mandamus, compel a state officer to perform plain official duties imposed by law, the writ should go. This court, I submit with great confidence, is in error if it means to say that Hart v. Burke, 33 La. Ann. 498, decides, or that the supreme court of Louisiana has ever decided, that the courts of that state cannot, under any circumstances, compel the officers of the state, by mandamus, to perform plain official duties requiring no discretion. The state Code of Procedure expressly declares that the writ 'may be directed to public officers to compel them to fulfill any of the duties attached to their office, or which may be legally required of them.' Section 834. It is, I think, clear that, but for the debt ordinance that court would have sustained the writ in Hart v. Burke, and compelled the state officers to obey the statute and constitution of 1874. What that court adjudged was that while an* officer could not plead the authority of an unconstitutional statute as a justification for the non-performance or violation of his duty, it was different where the authority is an article in the state constitution. Upon that ground alone the writ was refused in Hart v. Burke. That I do not misinterpret that case is clear from Newman v. Burke, etc., determined in April, 1882. Newman, holding warrants on the general fund of the state for 1880 and 1881, claimed that by virtue of the debt ordinance he was entitled to be paid out of moneys in the hands of state officers, collected under the statute and constitution of 1874, and by that ordinance directed to be transferred to the general fund. He obtained by the judgment of the supreme court of the state an order for a mandamus against the state treasurer and fiscal agent, directing them to conform their books to the requirements of the debt ordinance, subject, however, to the right and duty of those officers 'to retain in statu quo so much of the fund in controversy as may be necessary to satisfy the pending claims of S. J. Hart and John Elliott et al., * * * in case judgment should be rendered in their favor in the judicial proceedings instituted by them, and now pendin the supreme court of the United States.' So that they only await the final determination of these suits to ascertain whether they can safely execute a state ordinance in conflict with the federal constitution. The state court, affirming the doctrines of Hart v. Burke, said: 'Inasmuch as no court can ever acquire jurisdiction over a state, or to enforce a contract of a state against her will, it follows that no court can ever have power to decree the invalidity of any provision of the state constitution, on the ground that it impairs the obligation of such a contract. But unless the court may decree the nullity of such a provision, on such a ground, it follows that it cannot compel the officers of the state to do anything in violation thereof, because the constitution of the state is their exclusive mandate, and absolutely binding on them.' This language needs no interpretation. While the federal constitution declares that it shall be the supreme law of the land, anything in the constitution of any state to the contrary notwithstanding, the supreme court of Louisiana holds that, in the matter of state contracts, her constitution is the exclusive mandate to, and absolutely binding upon, her officers, anything in the constitution of the United States to the contrary notwithstanding. And I take leave to say, with all respect for my brethren, that the decision this day rendered can be sustained upon no other ground. But in vain has this court repeatedly adjudged that a suit against the officers of a state or enforce the performance of plain official duties is not necessarily one against the state, within the meaning of that constitution; in vain has it often decided that contracts with states are as fully protected by that constitution as are those between individuals, and that a state can no more impair an existing contract by constitutional provision than by a legislative act; in vain have the circuit courts of the United States been invested with jurisdiction of all suits arising under the constitution and laws of the United States; in vain does that constitution declare that it shall be the supreme law of the land, binding upon the judges in every state, if it be true, as determined by the supreme court of Louisiana, that no court can ever have power to decree a provision of a state constitution invalid on the ground that it impairs the obligation of contracts with that state, or to compel state officers to disregard such invalid provision. As further evidence that the state court recognizes the right to a mandamus compelling, state officers to discharge ministerial duties, imposed by provisions of the debt ordinance, I refer to Eucyer v. Burke, reported in the same volume with Hart v. Burke, 33 La. Ann. 969. Eucyer was the owner of certain consolidated bonds, issued under the act of 1874. He concluded to accept the provisions of the debt ordinance of 1879, and, in conformity therewith, applied to the state treasurer to have his bonds stamped, so as to show that he acceded to the reduction of interest made by that ordinance. The state treasurer declining to comply with this request, an application was made to an inferior state court to compel him to stamp the bonds. His refusal to comply with the relator's demands was based in part upon a statute passed in 1880, (after the debt ordinance went into operation,) which declares that no bond shall be stamped until the coupons of January, 1880, were surrendered. That the relator did not do. Mandamus was refused by the inferior court, but the supreme court of Louisiana, after deciding that the act of 1880 was inoperative, because in conflict with the debt ordinance, said: 'In his answer defendant alleges that the service required of him by relator is not a ministerial duty, and that the judiciary has no control over the executive and co-ordinate branches of the government, except as regards purely ministerial duties of executive officers. As regards the first proposition, we decide that the service required in this case is the performance of a purely ministerial duty, and this is too plain to require argument. As to the second proposition, it is elementary; but, while fully recognizing the independence and all the rights of the co-ordinate branches of the government, it is only necessary to say that it is the province and duty of the judiciary, whenever the question is properly brought before it in judicial proceedings, to decide whether duties sought to be enforced at the hands of officers are or are not ministerial, and it is of the essence of the judiciary to adjudge such questions, as otherwise those officers would themselves, by their own decision, be judge of their legal and constitutional powers.' The judgment of the lower court was reversed, and the mandamus ordered to be issued, at the cost of the state treasurer in both courts. Thus it is shown that the same court which determined Hart v. Burke has decided that the courts of Louisiana have power, by mandamus, to compel an officer of the state to discharge ministerial duties, requiring in their performance no discretion upon his part; especially when necessary to enforce a provision in the state constitution in conflict with the constitution of the United States. It would seem, then, the holders of the consolidated bonds of Louisiana are in this anomalous condition: While the state courts, because of the debt ordinance in the new constitution, will not, by mandamus, compel its officers to perform the purely ministerial duties imposed by the statute and constitution of 1874, but will, by using that writ, require those officers to execute the provisions of that ordinance, although it is in conflict with the federal constitution, the courts of the United States, though now invested with jurisdiction of all suits arising under the constitution and the laws of the United States, are, it seems, without power to compel those officers to respect the inhibition in the supreme law of the land against state laws impairing the obligation of contracts. Such are the results which follow from the action of the supreme political power of a state whose officers, sworn to support the constitution of the United States, are required by the state court to look to the state constitution as their 'exclusive mandate and absolutely binding on them.' My own conclusions are: That the officers of Louisiana cannot rightfully enforce provisions of its constitution which conflict with the supreme law of the land, and the courts of the Union should not permit them to do so; that but for the adoption of the unconstitutional debt ordinance of 1879, and whether the suits were in a state court or in the circuit court of the United States, these state officers would have been restrained by injunction from diverting the funds collected to meet the interest on the consolidated bonds, and would have been compelled, by mandamus, to perform the purely ministerial duties enjoined by the statute and constitution of 1874; that if by existing laws the circuit court of the United States has no power to issue such writs, still, upon the removal of the mandamus suit from the state court, the former had power to do what the state court could legally have done had there been no removal, viz., make peremptory the alternative mandamus granted at the beginning of the suit by the inferior state court; that the debt ordinance being void because in conflict with the constitution of the United States, furnishes no reason whatever—least of all in the courts of the Union—why the relief asked should not be granted by any court of proper jurisdiction as to parties; that to refuse relief because of the command of a state to its officers to do that which is forbidden, or refrain from doing which is enjoined, by the supreme law of the land; or to give effect, for any purpose, in the courts of the Union, to the orders of the supreme political power of a state, made in defiance of the constitution of the United States,—is, practically, to announce that, so far as judicial action is concerned, a state may, by nullifying provisions in its fundamental law, destroy rights of contract, the obligations of which the constitution declares shall not be impaired by any state law. To such a doctrine I can never give my assent. I am, therefore, unable to concur in the opinion and judgment of the court.

109.US.185

The idea of regularity, as to route or time, or both, is involved in the words "express business," under § 104 of the act of June 30th, 1864, c. 173, 13 Stat. 276, and those words do not cover what is done bya person who carries goods solely on call and at special request, and does not run regular trips or over regular routes. In the absence of a statutory rule to the contrary, the defence of a statute of limitations, which is not raised either in pleading, or on the trial, or before judgment, cannot be availed of. In a suit to recover back internal revenue taxes, tried by the circuit court, without a jury, the court having found the facts, and held that the taxes were illegally exacted, but that the suit was barred by a statute of limitation, rendered a judgment for the defendant. On a writ of error by the plaintiff, the record not showing that the question as to the statute of limitations was raised by -the pleadings, or on the trial or before judgment, and the conclusion of law as to the illegality of the taxes being upheld, this court reversed the judgment, and directed a judgment for the plaintiff to be entered below.

We are of opinion that the plaintiff was not liable to this tax, because he did not carry on or do an 'express business,' within the meaning of the statute. Although he carried goods between New York and Brooklyn, and from one place to another in either city, he did so solely on call and at special request. He did not run regular trips or over regular routes or ferries. He was no more than a drayman or truckman, doing a job when ordered. The fact that he had a place in Brooklyn where orders could be left on a slate made no difference. The words 'express business,' in the statute, must have the meaning given them in the common acceptation. An 'express business' involves the idea of regularity, as to route or time, or both. Such is the definition in the lexicons. Whether, if the plaintiff had held out to the world, at any place of business, that he was carrying on an 'express,' or was doing an 'express business,' or had so designated himself by inscription on his vehicle or vehicles, that would have made any difference, it is not necessary to inquire, because no such thing was shown. As to the defense of the statute of limitations, it was not pleaded, nor brought to the attention of the court, as a defense, at the trial. It was not within the issue raised by the plea of the general issue, which was the only issue to which the stipulation for a trial by the court extended. It is well settled that, in the absence of a contrary rule established by statute, a defendant who desires to avail himself of a statute of limitation as a defense must raise the question either in the pleading, or on the trial, or before judgment. Storm v. U. S. 94 U. S. 76, 81; Upton v. McLaughlin, 105 U. S. 640. Such was always the law in New York, and no contrary rule was in force in New York, by statute, at any time after this suit was brought. When the testimony at the trial closed, and the plaintiff asked for a judgment in his favor, he was entitled to it. It is proper that the circuit court should be directed to enter such a judgment. The conclusion of law, by the circuit court, that the tax was illegally exacted being a correct conclusion, and its conclusion that the suit was barred by limitation being an incorrect conclusion, it follows that the plaintiff was entitled to judgment on the facts found. The special findings of fact were equivalent to a special verdict, and the question thereon was whether they required a judgment for the plaintiff or the defendant. This was a matter of law, the ruling on which can be reviewed by this court. Norris v. Jackson, 9 Wall. 125. The defendant in error asks that, if the judgment be reversed, the case be remanded, so that the statute of limitations may be pleaded. Without passing on a question as to whether the statute invoked would furnish a defense in this case, we are of opinion that no ground exists for the course suggested. The record shows that the defendant's attorney had notice, by the declaration, that the plaintiff's claim accrued before a date more than eight years prior to the filing of the plea. Under such circumstances it would not be a fair exercise of discretion not to hold the defendant to his legal status. The judgment is reversed, and the case is remanded to the circuit court, with directions to enter a judgment for the plaintiff for $61.30, with interest according to the law of the state of New York.

106.US.594

A. was appointed occasional weigher and measurer, at a fixed compensation per annum when employed. He rendered accounts for his services each month, Sundays being deducted; was paid on that basis, and gave his receipts therefor. He subsequently brought suit to recover pay for the Sundays excepted from those accounts. Held, that he is not entitled to recover.

According to the finding of facts in this case, the claimant received, on the first day of March, 1867, a written instrument appointing him occasional weigher and measurer, with a compensation fixed at $2,000 per annum when employed. He held the place and performed the duties of occasional weigher and measurer at Portland, Maine, under that appointment until November 30, 1877. A further finding is this: For each month during the period of said service the claimant was paid his compensation upon bills made out in the following form: 'The United States Dr. to F. E. Pray, occasional Weigher of the Customs for the Port of Portland. 'For my services as occasional weigher of the customs from _____ to _____, inclusive, Sundays excepted, one month, at $2,000 per annum.' Each bill so made out was for the sum due for the month named in it, after deducting the Sundays, and to each was subjoined a receipt, signed by the claimant, in the following form: 'Received payment for the above services, $_____, of _____, collector of customs for the port of Portland.' The present suit is brought to recover compensation for the Sundays excepted out of these monthly payments during the entire period of service. This demand is founded on the law which gives to the weighers and measurers, holding office as such by the usual appointment, a salary of $2,000 per annum, in which, of course, Sundays are disregarded. Counsel for the government contends that his letter of appointment, naming him as 'occasional weigher and measurer,' to be paid at the rate of $2,000 per annum 'when employed,' justified payment at that rate only for the days when he was in actual service. Whatever might have been said in opposition to this view, if claimant had asserted it during the early time of his service, it is clear that by the form of the bill for service for each month, he expressed his own understanding of the contract to be the same as that with the collector who employed and paid him. He makes out in his own name, 'for [his] my services as occasional weigher' 'for one month, Sundays excepted,' his bill, with the sum fixed on that basis, and accepts and signs a receipt for it, and this he does every month for 10 years. He cannot be permitted now to say, after he is out of that employment, that his contract was for $2,000 a year as an absolute salary. If this was the case of a person employed by a bank, a railroad company, or in any large business requiring many persons for its service, the case would admit of no argument. We think it equally plain in the present case. U. S. v. Adams, 7 Wall. 463; Same v. Child, 12 Wall. 241; Same v. Justice, 14 Wall. 535; Mason v. U. S. 17 Wall. 75. The judgment of the court of claims, dismissing the petition, is affirmed.

109.US.205

1. The cause was submitted to the court below without the intervention of a jury. No error in law can be predicated of a finding of fact by the court. 2. It being proved that a deed had been lost, and not intentionally destroyed or disposed of for the purpose of introducing a copy, it is competent under the statute of Illinois to use in evidence a certified copy of the deed from th proper recorder's office in the place of the original, although it was admitted that there was an error in the copy. 8. It is competent to prove the error in such case by evidence of witnesses who bad read the original deed ; or by a copy of the registry of the original deed as entered in the file book.

This was an action of ejectment brought by the defendant in error against the plaintiffs in error to recover the title and possession of a tract of land in Grundy county, Illinois, described as the north-east quarter of section twenty-nine, (29,) in township thirty-two, (32,) north of the base line, and in range eight, (8,) east of the third principal meridian. By stipulation the intervention of a jury was waived by the parties, and the cause was submitted upon the evidence to the circuit court. One of the defenses relied on was the statute of limitations of Illinois, being section 4 of chapter 83 of the Revised Statutes of that state, providing that possession for seven years, by actual residence thereon by any person having a connected title in law or equity, deducible of record from the state or United States, etc., should be a bar to an action brought for the recovery of lands, etc. Evidence was introduced on the part of the defendant below, the ancestor of the plaintiffs in error, tending to prove, as was claimed, that he had possessed the premises in controversy, by actual residence, for seven years next preceding the commencement of the action; but the finding of the court was that he had not been possessed, by actual residence thereon, of the land in controversy for that period. This finding, although excepted to and alleged as error, is a conclusion of fact which we cannot review. No exceptions appear on the record to the rulings of the court upon any questions relating to the evidence upon this point, and it cannot be claimed that the evidence, as stated in the bill of exceptions, was not legally sufficient to justify the conclusion reached by the court. No error in law can therefore be predicated of this conclusion of fact. On the trial it was admitted that Ibzan Lacey, the common source of title, derived title to the premises in controversy from the United States in 1839, and a power of attorney from Lacey and wife, dated April 20, 1839, to Joel Wicks, authorizing him to sell and convey the premises, was proved. It was further admitted that an original deed from Lacey and wife by Wicks, their attorney in fact, to Alva Newman, dated May 6, 1840, had been lost, and it was proved that it was not in the power of the plaintiffs to produce it, and that it had not been intentionally destroyed or disposed of for the purpose of introducing a copy thereof in place of the original. The plaintiffs below then offered in evidence a certified copy from the proper recorder's office of the record of said original deed, which, however, described the land conveyed as the south-east quarter of section 29, etc., instead of the north-east quarter of that section; but counsel for the plaintiffs stated in connection with the offer that there would be offered other evidence tending to show that there was a clerical error in the description of the land as entered upon the record and contained in the copy, and that it should be the north-east instead of the south-east quarter of the section. To the introduction of this certified copy objection was made, because it did not describe the land in controversy, and because no evidence was admissible to prove and correct any alleged mistake. The ground of this objection is stated to be that the statute of Illinois, (Laws 1861, p. 174, § 1,) in force at the time, authorizing the record of a deed or a certified transcript from the record to be used as evidence on a trial in place of a lost original, provided that it might be read in evidence 'with like effect as though the original of such deed, conveyance, or other writing was produced and read in evidence,' and that, as in this case, if the original had been produced, no evidence would be admitted to prove and correct the alleged mistake in the description of the premises conveyed, none can be admitted to prove and correct such a mistake in the record or transcript. The court overruled the objection and admitted the certified copy of the deed in evidence, reserving the question upon the subsequent evidence to be offered, for the purpose of proving and correcting the alleged mistake. Such evidence was, in the further progress of the trial, admitted, on which, as a conclusion of fact, the court found that the land actually described in the lost deed was that in controversy; and thereon judgment was given for the plaintiffs below. Exceptions were taken to the rulings of the court admitting the evidence subsequently offered as to the mistake in the description, upon the ground of its competency, which will be hereafter considered. The general question raised by the exception to the introduction of the certified copy from the record, is whether evidence of any description is admissible for such a purpose. The ruling of the circuit court on this point was correct. The language of the statute was intended merely to declare that the record of a deed, or a transcript from the record, though a copy only, and therefore in its nature merely secondary evidence, should nevertheless have the same effect, when competent as evidence at all, as the original itself, if it had been produced, upon the determination of the issues to be tried. It was not intended to declare that the record or a copy from it should, in law, be an original instrument for all purposes. The presumption is that as public officers generally perform their prescribed duties accurately, that the record, and all certified transcripts from it, will be true copies of the original; but they are none the less copies on that account, and are made evidence only in lieu of the original, and on the grounds on which secondary evidence is permitted to be given. And there is nothing in the statute, either expressed or implied, which forbids the party from showing by extrinsic proof, otherwise legitimate, what the contents of the lost original really were, where it is shown that the record itself, or a copy from it, is not a true copy. By the very terms of the statute, the record of a deed is not original evidence, for it can be used only on proof of the loss of the original deed, or that the latter cannot be produced by the party offering the proof; and the object of the statute evidently was to require recording, in the first place, as notice to subsequent purchasers, and in the second, to supply a convenient statutory mode and instrument of secondary evidence. Its whole effect can be accomplished, without in any manner displacing or superseding the common-law principles which authorized other modes of proving the contents of lost deeds and other instruments. It is in this light that the statute has been viewed and treated by the supreme court of Illinois. Bowman v. Wettig, 39 Ill. 416. In Nattinger v. Ware, 41 Ill. 245, it was decided that a deed, properly executed and acknowledged, but recorded with a misdescription of the premises, would protect the grantee against subsequent purchasers and incumbrancers. But how could this be, unless the party were at liberty to prove the mistake in the record, either by the production of the original, or, in case of its loss, by other competent secondary evidence? This is what happened in Nixon v. Cobleigh, 52 Ill. 387. There the plaintiff in ejectment, to prove his title, relied on a deed, signed, as he claimed, 'Samuel H. Turrill.' The original not being in his power to produce, he offered a certified copy from the record. It purported, however, to be signed by 'James H. Turrill.' Against the objection of the defendant he was allowed to prove by parol evidence that the original was signed 'by the name of Samuel H. Turrill.' The court said: 'This renders it morally certain that the recorder made a mistake in transcribing the original upon his records.' The same construction was given to a statute of Alabama, the meaning of which cannot be distinguished from the statute of Illinois, by the supreme court of that state in Harvey v. Thorpe, 28 Ala. 250, where the very point was ruled that parol evidence was admissible to show that a deed was not correctly recorded. And the same principle was adjudged in Wisconsin, in Sexsmith v. Jones, 13 Wis. 631, and in New Hampshire, in Wells v. Iron Co. 48 N. H. 534. The next question relates to the competency of the evidence admitted by the court to prove the mistake in the record of the deed, and the correct description of the property as contained in the original. This was, in substance, as follows: First, the testimony of certain persons tending to prove that they had seen the original deed, and that it described the land conveyed as identical with that in controversy; second, a certified copy from an entry or file book, kept by the recorder of La Salle county, in which the land was situate at the time the conveyance was made by the attorney of Lacey to Newman, of a memorandum made by the recorder, showing the date of the receipt of the deed for record, the names of the grantor and grantee, the hour of its receipt, the nature of the conveyance, the date of its execution, and the location of the land conveyed, under which head the premises are described as the 'N. E. 1/4 S. 29, T. 32 N., R. 8 E., 3d P. M;' third, a transcript from the land-office at Springfield, Illinois, in which office was contained the records of the entry of the land in controversy, showing Jeddiah Wooley entered the N. E. 1/4 29, 32, 8, on August 8, 1935, and that he did not enter the S. E. 1/4 of said section; also a receipt from the land-office at Chicago, Illinois, in which office the land in controversy was sold, dated August 8, 1835, for $200, from Jeddiah Wooley, Jr., in full payment of the N. E. 1/4 section 29, township 32 N., range 8 E. of the third principal meridian, being the land in controversy, upon which receipt was a memorandum indorsed in the handwriting of Joel Wicks, who was dead at the time of the trial, as follows: 'Sold this to Alva Newman, May 6, 1840.' But it is recited in the bill of exceptions that the court did not decide that the last-mentioned memorandum and a memorandum on the copy of the deed of May 6, 1840, from Lacey to Newman, that 'this land was entered by Jeddiah Wooley, August 8, 1835,' were either of them competent evidence. The evidence offered and objected to was, we think, competent. The testimony of witnesses who had read the original deed, as to their recollection of its contents, was direct evidence of the fact; and the copy of the registry of the deed, as entered in the file-book, was a copy of an official entry, made in a book of public records required to be kept by the recorder, and which constitutes the first step in the process of recording. The statute requires that every recorder shall keep 'an entry book, in which he shall, immediately on the receipt of any instrument to be recorded, enter, in the order of its reception, the names of the parties thereto, its date, the day of the month, hour, and year of filing the same, and a brief description of the premises, indorsing upon such instrument a number corresponding with the number of such entry.' Rev. St. Ill. 1845, p. 432, § 7; Laws 1847, p. 69, § 1; Laws 1869, p. 2, § 7. All these items of evidence tended to prove the alleged mistake, and what was the correct description of the premises conveyed in the lost original deed, and were entitled to be considered, in connection with the certified copy of the record of the deed itself, as secondary evidence of its contents. In admitting and considering them the circuit court committed no error; what effect should be given to them, singly or together, was for that court, to whom the cause had been submitted, alone to determine. We find no error in the record, and the judgment is affirmed.

109.US.329

Previous decisions of this court have settled: 1. That the grant of lands in 1846 to Iowa Territory for the improvement of the Des Moines River did not extend above the Raccoon Fork. 2. That the odd numbered sections within five miles of the river above Raccoon Fork and below the east branch, to which Indian title had been extinguished, did not pass under the act of 1856, granting lands to Iowa to aid in the construction. of railroads. 3. That the act of 1862 transferred the title from the United States and vested it in Iows. for the use of its grantees under the river grant. The court now decides: 4. That when the act of 1862 took effect, there was no Indian title in the way of the grant, and the title ofthe defendants in error in this suit was perfected. 5. That the reservation made by the executive under the act of 1846 is to have effect according to its terms, and not according to any mistaken interpretation which may at some time have been given to it.

The following are no longer open questions in this court: (1) That the grant of lands to the territory of Iowa for the improvement of the Des Moines river, made by the act of August 8, 1846, c. 103, (9 St. 77,) did not extend above the Raccoon Fork. Dubuque & P. R. Co. v. Litchfield, 23 How. 66. (2) That, notwithstanding this, the odd-numbered sections within five miles of the river, on each side above the Raccoon Fork, and below the east branch, to which the Indian title had been extinguished, were so far reserved, 'by competent authority,' for the purpose of aiding in the improvement of the Des Moines, that they did not pass under the act of May 15, 1856, c. 28, (11 St. 9,) granting lands to the state of Iowa to aid in the construction of certain railroads; and—— (3) That the act of July 12, 1862, c. 161, (12 St. 543,) 'transferred the title from the United States and vested it in the state of Iowa, for the use of its grantees under the river grant.' Wolcott v. Des Moines Co. 5 Wall. 681; Will- iams v. Baker, 17 Wall. 144; Homestead Co. v. Valley R. Co. Id. 153; Wolsey v. Chapman, 101 U. S. 767. The lands involved in this suit are odd-numbered sections, located in Iowa, within five miles of the Des Moines, above the east fork, and it is insisted that they did not pass under the act of 1862, because (1) when the reservation for the river improvement was made the Indian title had not been extinguished, and they were not then part of the public lands of the United States; and (2) the reservation, as in fact made, was along the east branch and not the main river, where these lands are. These objections present the only questions we have now to consider. 1. As to the Indian title. It is conceded that when the act of 1846 was passed all Indian titles had been extinguished, except such as belonged to certain bands of the Sioux. By a treaty between the United States and the Sacs and Foxes, the Medawah-Kanton, Wahpacoota, Wahpeton, and Sissetong bands or tribes of the Sioux, and the Ottowas, Iowas, Ottoes, and Missourias, concluded on the fifteenth of July, 1830, and proclaimed on the twenty-fourth of February, 1831, (7 St. 328,) certain lands were ceded and relinquished to the United States, 'to be assigned and allotted, under the direction of the president of the United States, to the tribes now living thereon, or to such other tribes as the president may locate thereon for hunting and other purposes.' The north line of this cession is described in the treaty as follows: 'Beginning at the upper fork of the Des Moines river and passing the source of the Little Sioux and Floyds rivers to the fork of the first creek, which falls into the Big Sioux or Calamet on the east side.' The lands north of this line were occupied by the Sioux, and those south were held by the United States for the purposes set forth in the treaty. Whether the lands in controversy in this suit are situated north or south of this boundary line depends on whether the east branch or the Lizard made the upper fork of the Des Moines, as understood by the parties when the treaty was concluded. If the Lizard, then all are north of the line; if the east branch, all, or nearly all, are south. On the twenty-eighth of July and the fifth of August, 1851, treaties were negotiated with the Sioux, by which they surrendered all their title to lands in Iowa. The ratification of these treaties, in the form they were originally made, was not advised by the senate, but on the twenty-third of June, 1852, certain amendments were proposed, on the acceptance of which the president was authorized to conclude the treaties 'as amended.' The amendments were agreed to by the Indians on the fourth and eighth of September, 1852, and the ratification of the treaties was duly proclaimed on the twenty-fourth of February, 1853. The grant to Iowa under the act of 1846 was of 'one equal moiety, in alternate sections, of the public lands, (remaining unsold and not otherwise disposed of, incumbered, or appropriated,) in a strip five miles in whdth on each side of said river, to be selected,' etc., and the odd-numbered sections were afterwards selected. A question arose as to the extent of this grant, and as early as February 23, 1848, the commissioner of the general land-office certified to the officers of the state that, in the opinion of 'his office,' the state was 'entitled to the alternate sections within five miles of the Des Moines river throughout the whole extent of that river within the limits of Iowa.' The state claimed that the grant extended from the mouth of the river to its source. Notwithstanding the opinion of the land-office and the claim of the state, a proclamation was issued by the president on the nineteenth of June, 1848, ordering into market some of the lands which lay above the Raccoon Fork. This led to a protest on the part of the officers of the state, and a correspondence between the representatives of the state in congress and the secretary of the treasury, whose department then had charge of the public lands, which resulted in the announcement by the secretary, on the second of March, 1849, of his opinion that the grant extended from the mouth to the source of the river, not, however, including any lands in the state of Missouri. In accordance with this opinion, instructions were issued from the general land-officers to the landofficers in Iowa, on the first of June, 1849, 'to withhold from sale all the lands situated in the odd-numbered sections within five miles on each side of the river above the Raccoon Fork.' This, however, did not settle the matter, and conflicting opinions were announced at various times by different officers of the executive departments of the government. Finally, on the twenty-second of February, 1851, the state officers formally notified the secretary of the interior, to whose department the charge of the public lands had before that time been assigned, of the demand by the state of 'all the odd sections of land within five miles of the Des Moines river above the Raccoon Fork.' After this the whole matter was brought before the president and cabinet, and the decision arrived at by them is indicated in the following letter of the secretary of the interior: 'DEPARTMENT OF THE INTERIOR, 'WASHINGTON, October 29, 1851. 'SIR: I herewith return all the papers in the Des Moines case, which were recalled from your office about the first of the present month. 'I have considered and carefully reviewed my decision of the twenty-sixth July last, and in doing so find that no decision which I can make will be final, as the question involved partakes more of a judicial than an executive character, which must ultimately be determined by the judicial tribunals of the country, and although my own opinion on the true construction of the grant is unchanged, yet in view of the great conflict of opinion among the executive officers of the government, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construction contended for by the state, I am willing to recognize the claim of the state, and to approve the selections without prejudice to the rights, if any there be, of other parties, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary. You will please, therefore, as soon as may be practicable, submit for my approval such lists as may have been prepared, and proceed to report for like approval lists of the alternate sections claimed by the state of Iowa above the Raccoon Fork, as far as the surveys have progressed or may hereafter be completed and returned. 'Very respectfully, etc., etc., 'A. H. H. STUART, Secretary. 'The Commissioner of the General Land-Office.' In obedience to these instructions, lists were made out as the surveys progressed, and submitted to the secretary for his approval. His last approval, before the passage of the railroad grant of 1856, was on the seventeenth of December, 1853. The lands now in controversy were not surveyed at that time, and were not included in this or any of the lists previously made. It is undoubtedly true, as was said in Leavenworth, etc., R. Co. v. U. S. 92 U. S. 743, that, 'in the absence of words of unmistakable import,' it will not be presumed that congress has made a grant of lands to which the Indian title has not been extinguished; but there are, nevertheless, instances, as in the case of the Pacific railroads, where this has been done. Confessedly, however, in this case the congressional grant of 1846 did not include the lands now in controversy. Whatever reservation there was to interfere with the railroad grant of 1856 grew out of what was done by the executive officers of the government after the act of 1846 was passed, and while its effect was in doubt. That the state claimed all the alternate sections within five miles of the river, on each side, and as far north as the state line, is not denied. That the intention of the president and his cabinet was to make the reservation as broad as the claim, is, to our minds, perfectly apparent from the language of the instructions of the secretary of the interior to the commissioner of the general land-office in his communication of the twenty-ninth of October, 1851. His words are: 'I am willing to recognize the claim of the state, and approve the selections without prejudice to the rights, if any there be, of others, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary.' He then directed lists of selections to be prepared, and submitted for his approval, as the surveys were completed and returned. At this time all the Indian title that could, by any possibility, interfere with the grant, as claimed by the state, was in the process of extinguishment. Treaties which were to have that effect had already been negotiated with the Indians, and were waiting ratification by the United States. There could hardly have been a doubt in the minds of any of the parties that long before any judicial determination of the matters in dispute every vestige of Indian title would be gone. Hence, to leave 'the question of the construction of the statute'—that is to say, the effect of the grant—'entirely open,' all the lands within the limit, surveyed or unsurveyed, and, as we think, incumbered by an Indian title or unincumbered, were reserved from sale until the 'action of the judiciary.' This reservation was in force when the act of 1856 was passed, and it is the reservation which this court had held prevented the grant under that act from attaching to the lands within the limits of the river grant, as claimed by the state. The act of 1862 afterwards, in express terms, granted to the state, for the use of its grantees, 'the alternate sections, designated by odd numbers, lying within five miles of said river, between the Raccoon Fork and the northern boundary of the state.' At this time there was no Indian title in the way of the grant, and if the reservation was good as against the railroad companies in 1856, the title of the Des Moines Valley Railroad Company, the grantee of the state, was perfected. 2. As to the east branch. Much of what has been said about the Indian title applies to this objection. The state claimed the lands along the river, and the reservation as promulgated was of what was claimed. No one now supposes the east branch was in fact the Des Moines river. It is undoubtedly true that at some time some officers of the government, as well as some officers of the state, supposed the branch was the main river, and acted accordingly, but that does not change the geographical fact that what was taken for the river was only a branch. The lists of selections along the branch, and their approval by the secretary, were mistakes, which the record shows were corrected in the final settlements between the state and the United States by allowances in account. The same may be said of the marks on the plats sent out from the general land-office to the local land-officers. They were clerical mistakes, growing out of an imperfect knowledge of the geography of the country. They did not change the reservation, but only gave wrong information as to what it was. There is no question of estoppel as a consequence of the mistake involved. The railroad grant of 1856 was subject to the reservation for the river grant. There is no pretense of fraud anywhere, and the record does not show that the conduct of the appellants or their grantors has been in any way influenced by the plats or the unauthorized selections and certificates. They knew, or ought to have known, that the reservation was confined to the river lands, and that the branch was not the river. Hence the reservation is to have effect according to its terms, and not according to any mistaken interpretation which may at some time have been given to it. We find no error in the record, and the judgment is affirmed.

108.US.292

A decree, in a suit in equity, set forth a hearing on pleadings and proofs, and awarded relief, but it ordered that a bill of exceptions signed by the court be filed as a part of the record. The bill of exceptions showed that the judge who held the court refused to permit the counsel for plaintiff to argue the cause, and allowed the counsel for the defendant to determine whether the case fell within a prior decision of another judge, and refused to determine that question himself, and then directed that the decree be entered, which was in favor of the defendant. On a bill of review, filed by the plaintiff : field, that the decree must be held for naught. A decree was made by a circuit court, in December, 1873, against two plaintiffs. In January, 1874, they appealed to this court. In December, 1875, the appeal was dismissed for the failure of the appellants to file and docket the cause in this court. In September, 1876, a bill of review was filed for errors in law: Hfeld, that the bill was filed in time, though not within two years from the making of the decree, because the control of the circuit court over the decree-was suspended during the pendency of the appeal. A lot of land, part of the navy yard at Memphis, Tennessee, not under lease to a private party, being exempt from State and county taxation by section 9 of the act of the legislature of Tennesee, which took effect February 20th, 1860, ch. 70, Private Acts of 1859-260, 284, was, by section 13 of the act of Congress of August 5th, 1861, ch. 45, 12 Stat. 297, exempt from taxation under the direct tax on land authorized by that act.

In May, 1867, a bill in equity was filed by the board of mayor and aldermen of the city of Memphis and Bridget Powers against Marmaduke L. Ensminger and J. J. Sears, in the circuit court of the United States for the western district of Tennessee. The bill was sworn to by John C. Powers as agent for Bridget Powers. The substantial allegations of the bill were that the city then owned in fee 75 acres of land in Memphis, known as the navy-yard, which land, after having been dedicated by its owners, in 1844, to the government of the United States, in fee, for naval purposes, was ceded to said city by the government, in fee; that the city, in February, 1866, leased lot 10, part of said land, to said Bridget Powers, for 20 years, and she took possession of it; that Ensminger, and Sears as his agent, were setting up a claim to said lot, as having been purchased by Ensminger at a sale of it by the United States direct-tax commissioners in June, 1864, and had procured said commissioners to issue a writ of possession on April 30, 1867, to put Ensminger in possession of said lot; that the tax sale was void because (1) the act of congress under which the sale was made was unconstitutional; (2) the assessment was excessive and unauthorized; (3) the enforcement of the act was premature in time; (4) the act was not followed as to advertising the sale in a newspaper, or as to the length of time of the advertisment; (5) the sale was made on a day subsequent to that for which it was advertised. The bill prayed for a decree declaring the sale void, and for an injunction restraining the issuing or execution of any writ dispossessing the plaintiffs. A temporary injunction was issued. Ensminger answered, setting up his tax title, as evidenced by a certificate of sale, alleging the validity of the sale and denying the allegations of the bill. The cause was heard on pleadings and proofs, and on the twenty-seventh of December, 1873, the court entered a decree that the injunction be dissolved; that lot 10 was duly sold to Ensminger, and the acquired thereby a title to it in fee-simple; that he should have a writ to the marshal to put him in possession; that there be a reference to a master to take an account of the damages to Ensminger from the injunction, for which purpose only the bill should be retained; and that the plaintiffs pay the costs of the suit. The city and Bridget Powers appealed to this court. John C. Powers signed the appeal bond for costs as surety. There was no supersedeas bond. On the thirteenth of December, 1875, the cause came on for hearing in this court, and, it appearing that the appellants had failed to file and docket the cause in this court in conformity with its rules, the appeal was docketed and dismissed by this court with costs, execution was awarded against the plaintiffs for the costs of the defendants in this court, and the cause was remanded to the circuit court for execution and further proceedings. The mandate of this court was filed in the circuit court, and on the nineteenth of June, 1876, that court made a decree that the reference as to the damages from the injunction proceed, and that the referee also report the damages to Ensminger from the loss of rents and profits of the land; and under its order an alias writ of possession was issued by it, on July 8, 1876, to the marshal to put Ensminger in possession of lot 10. On the ninth of September, 1876, the said John C. Powers, describing himself as the husband of the said Bridget Powers, and the said Bridget Powers filed a bill in equity against the said Ensminger and the said Sears and the said city in the said circuit court. The bill prays for a decree that the plaintiffs, or the plaintiff Bridget, have a right to the leased premises for the term of the lease; that the sale to Ensminger be declared void; that the said decrees of December, 1873, and June, 1876, be reviewed and set aside; and that Ensminger and Sears be enjoined from collecting rent from the plaintiffs, or either of them, for said lot, and from interfering with their possession of it. Ensminger and Sears having demurred to the bill, the court gave leave to the plaintiffs to file said bill as a bill of review, and then the demurrer was heard and overruled, with leave to the defendants to embody in their answer the matters of the demurrer, and a temporary injunction was granted according to the prayer of the bill, and the bill was dismissed as to the city, and the other defendants were allowed to answer the bill. They answered, there was a replication, the case was heard on pleadings and proofs, and in December, 1878, the court rendered a decree adjudging that the said decrees of December, 1873, and June, 1876, in the first suit be reversed, vacated, set aside, and canceled, and the plaintiffs, as against the defendants, be restored to all they had lost under and by virtue of said decrees and the process which had been issued thereunder; that the plaintiff Bridget has a good title as against the defendants for the term of her lease from the city to said lot 10, subject only to said lease; that Ensminger be perpetually enjoined from setting up any title to said lot under said tax-sale certificate; that the said temporary injunction be made perpetual; that a writ issue to put the plaintiffs in possession of said lot; and that the plaintiffs recover from the defendants the costs of both of the suits, and have execution therefor. Sears having died after the cause was submitted, the suit was ordered to be abated as to him, and Ensminger took an appeal to this court from said decree. The bill in this suit sets forth that the land for the navy-yard, after having been dedicated by its original proprietors, in 1828, for a landing for public purposes of navigation or trade forever, was conveyed to the government by the city of Memphis, in 1844, for a navy-yard, without lawful authority, because it had been dedicated to public purposes by the original proprietors, and the city had accepted the dedication; that in 1854, by an act of congress, the government ceded the land to the city, for the use and benefit of the city, and after that the rights of the public remained the same as before the conveyance to the government; that the city leased lot 10 to the plaintiff Bridget for the term from February 28, 1866, to December 31, 1886, for a yearly rent of $127.19, payable half-yearly; that the lot was vacant and she agreed with the city to put buildings on it, with the right to her to remove them as her own property at the end of the lease; that Ensminger and Sears had compelled John C. Powers to take a lease of the lot from Ensminger in order to enable the plaintiffs to avoid being turned out of possession, and also, as a condition of remaining, to give his five notes for $25 each as rent for five months from July 19, 1876, one of which notes he had paid; that the plaintiff Bridget had put buildings on the lot, which were now on it, at a cost to her of $9,000 or $10,000; that after the plaintiffs had constructed much the larger part of the buildings they learned of the claim of Ensminger, and the plaintiff John C. applied to the city attorney to protect the plaintiffs, and he filed the bill in the first suit, not making John C. a party; that Ensminger answered, setting up his tax title; that no cross-bill was filed, nor was the answer made a cross-bill, nor was any affirmative relief prayed in the answer; that some proof was taken and the cause was treated as at issue, though no replication was filed; that the decree entered was not entered on a hearing of the case by the judge who held the court, although the plaintiffs in the suit asked for a hearing, but the judge allowed the counsel for the defendants to enter the decree at his peril, subject to the right of the plaintiffs to bring a bill of review; that the plaintiffs excepted to such ruling and the judge signed a bill of exceptions; that the appeal to this court was dismissed because the city refused to pay the necessary money for filing the transcript of the record which had been made, and docketing the appeal; that the marshal was proceeding to execute the alias writ of possession when the plaintiff John C. accepted said lease and gave said notes, and the plaintiffs remain in possession; and that the said decree and proceedings did not bind either of the plaintiffs, because Bridget was a married woman and her husband was not a party. The bill alleges that the former decrees, so far as they undertook to decree the validity of the title of Ensminger to the premises, or to award a writ of possession to him, or to do anything more than dismiss the bill of the plaintiffs, departed from the established practice of the court, and were void or erroneous; and that the decree was erroneous, if not void, because it was not the deliberate judgment of the court upon the facts in the record, and because the cause was not at issue or ready for hearing. The bill then sets forth various reasons why the purchase and title of Ensminger were invalid. Among other things the bill says: 'These plaintiffs further state and show that in the year 1861, and from thence up to the date of the lease aforesaid, the said premises were not and had not been leased by the city of Memphis to any one, or, if any such lease had been made, the same had been abandoned and forfeited, and was not for any part or period of the same time in force or subsisting as a valid and effectual contract. The plaintiffs further state and show that, by a special act of the general assembly of the state of Tennessee, in force in the year 1861, the said premises were not taxable by the state of Tennessee, or the United States of America, the same not being under a lease from the city, and, for that reason, that the said sale was void. And the plaintiffs further state and show that the title to the said premises in 1861, and before and since that time, was in the city of Memphis, which held the same as public property, for municipal or public purposes, as provided by law, and, therefore, by the law of the state of Tennessee, the said premises were not, in the year 1861, or before or since, liable to a direct tax by the government of the United States, and for that reason the said sale was void.' The bill also prays that the lease taken and the notes given by John C. be canceled. The decree granted this relief also. The answer of Ensminger and Sears asserts the validity of the title of Ensminger under the tax sale; that the decree in the first suit was an adjudication in his favor as to all the allegations in this bill; that none of the alleged objections to the tax sale proceedings are tenable; that, although the lease to Bridget was not made until 1866, the property had been divided into lots and offered for lease by the city before the assessment of said tax in 1864, and at one time before that date a lease of lot 10 had been made by the city, which was not carried into operation because of the failure of the lessee to comply with it; that the property was not exempt from taxation under any act of the legislature of Tennessee, and was not in 1861, or before or since, held for municipal purposes; that the said Bridget has no right to the improvements she put on the land; that the former suit was commenced at the instance and request of John C., and he swore to the bill and prosecuted it in conjunction with Bridget; that said suit, under which all of the plaintiffs' rights were fully considered and passed upon by the court, was a final adjudication of all of the questions and rights therein set up, and the decision, being upon the same facts and rights as are claimed by the plaintiffs in this suit, and between the same parties, is res adjudicata as to this suit; and that the defendants plead the same as a complete bar to this suit. The answer then sets up as a defense most of the matters which had been so set up in the demurrer. After the decree of June, 1876, in the former suit, the reference as to the damages from the injunction in that suit proceeded, and in November, 1876, a report was made awarding to Ensminger, as damages, $12,962.10. The city of Memphis excepted to the report, and on the eleventh of January, 1878, the court made a decree that it had no jurisdiction to assess the damages from the injunction, and that the bill be dismissed without prejudice to a suit at law on the injunction bond. The first question to be considered is as to whether the decree of December, 1873, can be considered as a decree of the court for any purpose. The bill in the present suit sets forth certain facts as having occurred in court when the case came up for hearing, and refers to a bill of exceptions embodying such matters as having been signed by the judge who was holding the court, and ordered to be filed and to form a part of the record of the cause, and alleges that the decree was erroneous because it was not the deliberate judgment of the court upon the facts in the record. The decree states that the case was heard on the bill, answer, exhibits, agreement of counsel, and proof, and had been fully argued, and the court had duly deliberated thereon, but it also says: 'It is further ordered that the bill of exceptions tendered and signed by the court be filed as part of the record, which is done accordingly.' There is in the record a bill of exceptions filed the same day the decree was made. This bill of exceptions states that the cause came on to be heard before the judge holding the court—— 'Under the following circumstances, to which counsel for the city of Memphis excepted, and prayed a bill of exceptions to, upon the record of the facts below, stated as they occurred: First. Duncan K. McRae, Esq., of counsel for the claimants of the tax titles, stated that he had been instructed by his honor H. H. EMMONS, lately presiding at this term of said court, but who had then left the city of Memphis, where said court is held, to enter decrees in the series of causes in said court known as the United States Tax-title Cases, in all such of these cases as fell within the purview of the decision of his honor, rendered in certain of those cases tried before the said Judge EMMONS before that time, and that said decrees were to be entered in those cases which the said counsel thought came within his decision aforesaid, but to be so entered at the peril of said parties, because said judge would, upon a bill of review, set aside said decrees if it appeared to him by such bill of review that the case did not properly fall within his said decision; that he had, at the further suggestion of said judge, published a notice in the city papers that on Saturday, the twentieth of December aforesaid, he would proceed to take such decrees, when the counsel interested in the several cases could appear; which said newspaper notice is hereto attached. Secondly. The said counsel then proceeded to read from a list the cases, and to designate such as he desired to enter decrees in and such as he would pass or continue. When the above-entitled cause was called, the counsel for the city objected, and stated that the city attorney would insist that this cause did not come within the class of causes to which Judge EMMONS referred, and stated that the city would contend that the property of its municipality was not liable to taxation; that it was exempt under an act of the legislature; that the proof showed the city was entitled to a decree. The counsel for the claimants of the tax titles, the said McRae, insisted that he was to be the judge of the cases in which he was entitled to take decrees, and was to take them at his peril, subject to a bill of review, and that if the city attorney would convince him, before the decree was entered, that the case was not one proper for a decree, he would not enter it. The counsel for the city insisted that the presiding judge here present was to determine that question. Wherepon the presiding judge remarked 'that he did not know what Judge EMMONS decision was, nor the scope of it; that he had promised said justice to have entered decrees in such cases as fell within the decision, and that he understood that it was left to counsel for the claimants of the tax titles to determine which were such cases; and that he would enter decrees in such cases as the said counsel should designate, with the understanding that such proceedings were at his peril.' Thereupon counsel for the city inquired if Judge EMMONS' decree or decision, or the order under which these proceedings were had, were of record, and the counsel for the tax-title claimants informed the court that such order was not of record, but that it would be entered of record before the decrees were entered. 'And thereupon B. M. Estes, Esq., who was of counsel and argued the cases in opposition to the tax titles, stated to the court that Judge EMMONS' written opinion had been lost or mislaid, having been rendered some time ago and then withdrawn for revision, since which time it could not be found; that in it he had only decided that the acts of congress under which the sales were made were constitutional, and the proceedings of the commissioners thereupon regular; that prior to the final determination of the case by the judge, and while he had it under advisement, the case had been compromised, and hence no decree had ever been entered. Counsel for the city then objected to a decree in this case, because it involved other questions than the constitutionality of the acts of congress and the regularity of the proceedings of the commissioners appointed under them, and asked to have those other questions argued. Whereupon counsel for the tax-title claimants insisted that if the case contained other questions the city could show it on bill of review and the decree would be set aside under Judge EMMONS' order; to which counsel for the city objected that a bill of review would not lie, and insisted on a determination of the question by the court, whether this case came within Judge EMMONS's order for the entry of decrees. And thereupon the court decided that the counsel for the claimants should enter decrees in such cases, as he designated, as, under the undertaking with his brother EMMONS, he had only to direct such decrees to be entered as the counsel should determine. To all of which counsel for the city excepted, and prayed that by bill of exceptions the city should be allowed to show the proceedings in court as they occurred and its exceptions thereto. And now, accordingly, the said city here tenders this bill of exceptions, and objects to the said decree and all said proceedings as heretofore on the hearing they were objected to, and prays that said bill of exceptions may be signed and sealed by the judge presiding and made a part of the record, which is done accordingly.' Under this state of facts the bill of exceptions must have the same effect as if the narration it contains of what occurred were incorporated in the body of the decree. Thus considered, it appears that, against the objection and exception of the counsel for the city, who represented both of the plaintiffs in the suit, the plaintiffs were denied by the court a hearing of the case on the merits, and the judge holding the court refused to decide whether the case fell within the prior decision or order of Judge EMMONS, and allowed the counsel for the defendant to determine that question. Notwithstanding the statements in the decree that the case was heard on the pleadings and proofs and fully argued, and that the decree was the decree of the court, these statements are contradicted by the bill of exceptions, forming virtually part of the same decree. It is quite apparent that the judge intended that what occurred should be spread before this court on an appeal, so that its effect on the validity of the decree might be considered. There can be no doubt that it could be so considered; and, if on appeal, it must have a like effect on a bill of review, as it is to looked at as forming a part of the decree. What, then, does it show, except that the proper forms of the administration of justice were disregarded, the functions of the judge were abnegated, there was no hearing or decision by the court, and the counsel for the defendant was allowed to prepare and enter such a degree as he chose? Words need not be multiplied to argue that a decree rendered under such circumstances must, on a bill of review, by held for naught and as if it did not exist. Though not the case of actual fraud practiced on the court or on the opposite party, what was done operated as a legal fraud in respect of the rights of such party, through the illegal co-operation of the judge with one of the parties. In McVeigh v. U. S. 11 Wall. 259, an information had been filed by the United States against certain property belonging to McVeigh, to forfeit it. He appeared and put in a claim and answer. The district court struck it out because McVeigh resided within the confederate lines and was a rebel, and condemned the property by default. This court, on a writ of error, reversed the judgment, on the ground that McVeigh was denied a hearing and the first principles of the due administration of justice were violated. Equally in the present case, the plaintiffs in the suit were denied a hearing, and their answer might as well have been stricken out. In addition to this, there was no judicial action by the court, and the defendant was allowed virtually to decide the cause in his own favor. For these reasons it must be held that the decree in question cannot, in this suit, be regarded as a decree adjudicating any rights between the parties to the former suit, and that it forms no obstacle to the consideration of the issues raised in the present suit, provided the bill was filed in time, as a bill of review. It was not filed within two years after the decree of December, 1873, was rendered. But the plaintiffs in that decree appealed from it to this court, it being a final decree. A bill of review must ordinarily be brought within the time limited by statute for taking an appeal from the decree sought to be reviewed, where, as here, the review sought is not founded on matters discovered since the decree. Thomas v. Harvie's Heirs, 10 Wheat. 146; Whiting v. Bank of U. S. 13 Pet. 15; Kennedy v. Georgia State Bank, 8 How. 609; Clark v. Killian, 103 U. S. 766. But the appeal to this court was perfected by the giving of a bond for costs in January, 1874, and, although this court, in December, 1875, dismissed the appeal for the failure of the appellants to file and docket the cause in this court, yet the cause was out of the court below, and in this court until within two years before the bill in this suit was filed. The pendency of the appeal by Bridget Powers would have been a valid objection to the filing of a bill of review by her for the errors in law now alleged; and, inasmuch as the appeal was not heard here on its merits, but the prosecution of it was abandoned, we are of opinion that the bill of review was filed in time. While the appeal was pending here, although there was no supersedeas, the circuit court had no jurisdiction to vacate the decree, in pursuance of the prayer of a bill of review, because such relief was beyond its control The time during which that control was suspended to await the orderly conduct of business in this court in regard to hearing the appeal, is not to be reckoned against Bridget Powers in this case, although she joined in the appeal. She was exercising a right in doing so; and, as the city of Memphis was the principal plaintiff and appellant, and was endeavoring to protect its title in fee, and thus her right as a lessee, it may very well have been, as is alleged in the bill, that the appeal fell because the city refused to pay the necessary money for filing the transcript of the record. Being thus left to the protection of her own rights, she may well have concluded that a bill of review was preferable to the further prosecution of the appeal, when she had such good cause for that course, as now appears, although the same error might have been corrected if the appeal had been heard on the merits. This bill of review is properly brought, therefore, because of the error on the face of the decree which has been considered, and, the decree being set aside, as it must be we are free to examine the question as to the validity of the tax title set up by Ensminger. Although the sale of the lot for taxes preceded the lease to Bridget Powers, the sale was invalid as to her if the lot was not subject to be sold for taxes. By section 13 of the act of congress of August 5, 1861, (12 St. at Large, c. 45, p. 297,) providing for a direct tax and for its assessment on land, there was exempted from tax all land permanently or specially exempted from taxation by the laws of the state wherein it was situated, at the time of the passage of that act. The same section provided that, in making such assessment, due regard should be had to the latest valuation under the authority of the state. The exemption of land exempted from taxation by the laws of the state is repeated in section 1 of the act of June 7, 1862, (Id. c. 98, p. 422,) and it is there provided that the direct taxes shall be charged on lands and lots of ground as the same were enumerated and valued under the last assessment and valuation thereof made under the authority of the state before January 1, 1861. Section 7 of that act, which makes the certificate of the sale of the land for the tax prima facie evidence of the regularity and validity of the sale, and of the title of the purchaser, provides that the certificate may be affected, as evidence of the regularity and validity of the sale, by establishing the fact that the property was not subject to taxes. These acts of 1861 and 1862 governed the sale in question. By section 9 of the act of the legislature of Tennessee, which took effect February 20, 1860, (Priv. Acts 1859-60, c. 70, p. 284,) it was enacted 'that all buildings and grounds owned by said city of Memphis and used exclusively for public purposes, such as for fire companies and fire engines, city water-works, markets, and market houses, and their grounds, and such parts of the navy-yard as are not leased to private parties, be and the same are hereby declared free and exempt from all state and county taxes so long as owned by the city, and so used for public purposes.' The lot in question is shown by the testimony in the present suit to have been part of the navy-yard, and to have been the property of the city of Memphis from before the passage of the act of 1861 until after the sale of it for taxes. It is not shown to have been leased to any private party between those dates. The decree in the first suit and the tax-sale certificate refer to the lot as 'assessed to G. McLean in 1860,' and the evidence shows that it was assessed to G. W. McLean in 1860, 1865, 1866, and 1867. The lease to Bridget Powers provides that she shall save the city harmless from any damages 'to be claimed by the original lessees of said lot.' But there is no legal evidence whatever of any subsisting lease during the period named. The bill alleges that there was none, and the answer substantially admits this averment, by saying that at one time before the assessment of the tax in 1864 a lease of the lot by the city had been made, 'which was not carried into operation by failure of the lessee to comply.' This is equivalent to saying that there was no subsisting lease when the tax was assessed for which the lot was sold. There is the evidence of a witness for the plaintiff familiar with the premises, and residing near them, that he never knew of any assertion of any claim to the lot by any lessee, and the case is one where, on all the facts, and in the absence of affirmative proof by the defendant of the existence of such lease, the evidence that there was none must be held sufficient. We do not perceive that any of the objections set up by demurrer and repeated in the answer are tenable. The decree of the circuit court is affirmed in all respects, except in so far as it erroneously gives the date of July 19, 1876, to the decree of June 19, 1876, and recites erroneously the contents of said decree; and except in so far as it may be construed as enjoining the defendant Ensminger from setting up any title to said lot 10 as against the city of Memphis, or as quieting or confirming the possession of the plaintiffs as against the city of Memphis under the said lease from said city; and except in so far as it adjudges that the lease made by the defendants to the plaintiff John C. Powers, and the five notes executed by him, be delivered up and canceled. As to this last-named lease, the plaintiff John C. Powers, having voluntarily entered into it, no ground is shown for setting it aside. It was correct to charge Ensminger with the costs of both suits. The decree of this court in the first suit imposed on the plaintiffs herein only the costs of the appeal to this court. The costs of the present appeal must be paid by the appellant.

109.US.189

A bill in equity will not lie to enjoih a collector of internal revenue from collecting a tax assessed by the commissioner of internal revenue against a manufacturer of tolecco, although the tax is alleged in the bill to have been illegally assessed. The remedy of a suit to recover back the tax after it is paid, which the statute provides, is exclusive.

The sole object of the suit is to restrain the collection of a tax which purports to have been assessed under the internal revenue laws. A decree adjudging the tax to be void as against the appellant is sought for only as preliminary to relief by injunction, and would be futile for any purpose of this suit, unless followed by an injunction. The internal revenue act of July 13, 1866, c. 184, (14 St. at Large, 152,) provided, section 19, as follows: 'No suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue according to the provisions of law in that regard, and the regulations of the secretary of the treasury, established in pursuance thereof, and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision, or within six months from the time this act takes effect: provided, that if said decision shall be delayed more than six months from the date of such appeal, then said suit may be brought at any time within twelve months from the date of such appeal.' By section 10 of the act of March 2, 1867, c. 169, (14 St. at Large, 475,) it was enacted that section 19 of the said act of 1866 be amended 'by adding the following thereto:' 'And no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court.' In the Revised Statutes this amendment of and addition to section 19 of the act of 1866 is made a section by itself, (section 3224,) separated from that of which it is an amendment, and to which it is an addition, and reads thus: 'No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' The word 'any' was inserted by the revisers. This enactment in section 3224 has a no more restricted meaning than it had when, after the act of 1867, it formed a part of section 19 of the act of 1866, by being added thereto. The first part of section 19 related to a suit to recover back money paid for a 'tax alleged to have been erroneously or illegally assessed or collected,' and the section, after thus providing for the circumstances under which such a suit might be brought, proceeded, when amended, to say that 'no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court.' The addition of 1867 was in pari materia with the previous part of the section, and related to the same subject-matter. The 'tax' spoken of in the first part of the section was called a 'tax' sub modo, but was characterized as a 'tax alleged to have been erroneously or illegally assessed or collected.' Hence, when, on the addition to the section, a 'tax' was spoken of, it meant that which is in a condition to be collected as a tax, and is claimed by the proper public officers to be a tax, although on the other side it is alleged to have been erroneously or illegally assessed. It has no other meaning in section 3224. There is therefore no force in the suggestion that section 3224, in speaking of a 'tax,' means only a legal tax; and that an illegal tax is not a tax, and so does not fall within the inhibition of the statute, and the collection of it may be restrained. The statute clearly applies to the present suit, and forbids the granting of relief by injunction. It is distinctly alleged in the bill that the appellee claims that the appellant owes to the United States the amounts assessed for taxes,—both the tax assessed against the appellant and that assessed against Irwin & Snyder. The bill also shows sufficiently that the assessment had relation to the business of the appellant as a manufacturer of tobacco, and to his liability to tax, under the internal revenue laws, in respect to such business. The instructions of the internal revenue department in regard to the preparation of assessment lists provided that where an assessment was reported against a manufacturer of tobacco for having removed any taxable articles from his manufactory without the use of the proper stamp, or for not having duly paid such tax by stamp at the time and in the manner provided by law, the entry in the column headed 'article or occupation' should be 'Stamp Tax, Tob.,' with liberty to use the initials 'S. T.' as an abbreviation for 'stamp tax.' The instructions stated that 'Tob.' is an abbreviaton for 'tobacco.' Resort may be had to these instructions to show the meaning of the abbreviations in the assessment list. Read by the light of the instructions, the list shows a tax which the appellant might be liable to pay, and one which the commissioner had general jurisdiction to assess against him. The inhibition of section 3224 applies to all assessments of taxes, made under color of their offices, by internal revenue officers charged with general jurisdiction of the subject of assessing taxes against tobacco manufacturers. The remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the current of decisions in the circuit courts of the United States, and we are satisfied it is a correct view of the law. Howland v. Soule, Deady, 413; Pullan v. Kinsinger, 2 Abb. (U. S.) 94; Robbins v. Freeland, 14 Int. Rev. Rec. 28; Delaware R. Co. v. Prettyman, 17 Int. Rev. Rec. 99; U. S. v. Black, 11 Blatchf. C. C. 543; Kissinger v. Bean, 7 Biss. 60; U. S. v. Pacific Railroad, 4 Dill. 69; Alkan v. Bean, 23 Int. Rev. Rec. 351; Kensett v. Stivers, 18 Blatchf. C. C. 397.1 In Cheatham v. U. S. 92 U. S. 85, 88, and again in State Railroad Tax Case, Id. 575, 613, it was said by this court that the system prescribed by the United States in regard to both customs duties and internal revenue taxes, of stringent measures, not judicial, to collect them, with appeals to specified tribunals, and suits to recover back moneys illegally exacted, was a system of corrective justice intended to be complete, and enacted under the right belonging to the government to prescribe the conditions on which it would subject itself to the judgment of the courts in the collection of its revenues. In the exercise of that right it declares, by section 3224, that its officers shall not be enjoined from collecting a tax claimed to have been unjustly assessed, when those officers, in the course of general jurisdiction over the subject-matter in question, have made the assessment and claim that it is valid. The decree of the circuit court is affirmed.

109.US.477

a deputy, seized them on March 29th, 1878. Ma x Schott, on the 6th of April, commenced an action of trespass in the Circuit Court for Saginaw County, Michigan, against Matthews and Wells, to recover $25,000 damages for the acts of the defendants in breaking and entering the store at East Saginaw, and taking therefrom and carrying away goods of the plaintiffs of the value of $20,000, and coinverting the same to their own use, and preventing the plaintiffs from carrying on their lawful business in the store. After the defendants in the trespass suit had appeared therein by attorney, and demanded a trial, and given the like notice of defence as was given in the suit for trespass brought by J. Leroux & Co., nothing further was done in the suit. In October, 1878, Hudson (the assignee), Matthews (the marshal), and Wells filed a bill in equity, in the Circuit Court of the United States for the Easteni District of Michigan, -against Max Schott, making the like allegations, mutati8 mutandis, as to the goods taken from Max Schott, as were made in the bill filed by J. Leroux & Co., in regard to the goods taken from them, and containing a like prayer for relief and for an injunction. Like proceedings took place, except that a demurrer was embodied in the answer instead of beigm filed separately. The answer was of a like -character, the proofs and protest were identical, and a like decree was entered, from which the defendant appealed. The same questions are involved as in Leroux v. Ibdson, the facts are substantially the same, and the same conclusions are reached. Tie decree of the circuit court is reversed, and Mhe cause is remanded to that court, with direction to dismiss the i11.

The facts in this case differ from those in Leroux v. Hudson, herewith decided, [ante, 309,] as set forth in the opinion in that case, only in the following immaterial respects: The goods seized were in the hands of Max Schott, in his store at East Saginaw, Saginaw county, Michigan, and had been transferred to him by the debtors. The marshal, Matthews, assisted by John E. Wells, a deputy, seized them on March 29, 1878. Max Schott, on the sixth of April, commenced an action of trespass in the circuit court for Saginaw county, Michigan, against Matthews and Wells, to recover $25,000 damages for the acts of the defendants in breaking and entering the store at East Saginaw, and taking therefrom and carrying away goods of the plaintiffs of the value of $20,000, and converting the same to their own use, and preventing the plaintiffs from carrying on their lawful business in the store. After the defendants in the trespass suit had appeared therein by attorney and demanded a trial, and given the like notice of defense as was given in the suit for trespass brought by J. Leroux & Co., nothing further was done in the suit. In October, 1878, Hudson, (the assignee,) Matthews, (the marshal,) and Wells filed a bill in equity in the circuit court of the United States for the eastern disirict of Michigan against Max Schott, making the like allegations, mutatis mutandis, as to the goods taken from Max Schott, as were made in the bill filed by J. Leroux & Co. in regard to the goods taken from them, and containing a like prayer for relief and for an injunction. Like proceedings took place, except that a demurrer was embodied in the answer instead of being filed separately. The answer was of a like character, the proofs and protest were identical, and a like decree was entered, from which the defendant appealed. The decree of the circuit court is reversed, and the cause is remanded to that court, with direction to dismiss the bill. The same questions are involved as in Leroux v. Hudson, the facts are substantially the same, and the same conclusions are reached. The decree of the circuit court is reversed, and the cause is remanded to that court, with direction to dismiss the bill.

107.US.320

1. A claim for the appraisement of goods and the reduction of the duty thereon, by reason of the damage which they sustained during the voyage of importation, may be allowed, although not made until after they were entered at the custom-house at their full invoice value and the estimated duties thereon paid. Shelton v. The Collector, 5 Wall. 113, so far as it conflicts with this ruling, is overruled. 2. Section 2928, Rev. Stat., has exclusive reference to goods taken from a wreck.

tion 2928 of the Revised Statutes, a re-enactment of section 21 of the act of March 1, 1823, c. 21, relates alone to merchandise taken from a wreck, and does not in any manner affect the proceedings under section 2927, a re-enactment of section 52 of the act of March 2, 1799, c. 22, to obtain an appraisement for an abatement of duties on account of damages to goods during a voyage. What was said in Shelton v. The Collector, 5 Wall. 118, to the contrary of this is disapproved. The subject is so fully and carefully considered in the opinion of the court below that we deem it unnecessary to do more than to refer to the report of the case in 17 Blatchf. 312. The judgment is affirmed.

106.US.523

The value of the matter in dispute, when the jurisdiction of this court depends thereon, must be such as can be ascertained in money, and, if not disclosed by the record, may be shown by affidavits.

Affidavits can only be used to furnish evidence of value not appearing on the face of the record when the nature of the matter in dispute is such as to admit of an estimate of its value in money. The motion to dismiss is, therefore, granted.

109.US.108

A brought suit against B upon bonds aggregating $24,000, on which over $5,000 interest was claimed as overdue. Before trial A, by leave of court, amended so as to include only 90 of the coupons originally sued on. He took judgment for less than $5,000. Held, that the amendment was within the discretion of the Court below, and this court has no jurisdiction.

The action below was brought originally upon 119 interest coupons cut from 24 bonds of the city of Opelika. The bonds were in the aggregate for $24,000, and the amount claimed to be due on the coupons was more than $5,000. At first a demurrer was filed to the complaint. This being overruled, the validity of the bonds was put in issue by various pleas. Before trial, the plaintiff, Daniel, asked and obtained leave to amend his complaint so as to include only 90 of the coupons originally sued for. After the amendment a jury was impaneled, and on the trial the 90 coupons only were put in evidence. The verdict was for $4,755.64, and a judgment was entered thereon for that amount and no more. To reverse that judgment this writ of error was brought. At a former term Daniel moved to dismiss because the value of the matter in dispute did not exceed $5,000. That motion was continued for hearing with the case on its merits. We decided at the last term in Elgin v. Marshall, 106 U. S. 579, [S. C. 1 SUP. CT. REP. 484], that our jurisdiction depends on 'the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered,' and that we are not permitted, 'for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.' That, like this, was a suit on coupons, and the judgment was for less than $5,000, although the bonds from which they were cut amounted to much more, and the validity of the bonds was one of the questions in dispute. The two cases cannot be distinguished in this particular. It was clearly within the discretion of the court to permit the amendment of the complaint before trial. In Thompson v. Butler, 95 U. S. 694, we declined to take jurisdiction where the verdict was for more than $5,000, but the plaintiff before judgment, with leave of the court, remitted the excess, and actually took judgment for $5,000 and no more. In that case it was said, page 696: 'Undoubtedly, the trial court may refuse to permit a verdict to be reduced by a plaintiff on his own motion; and if the object of the reduction is to deprive the appellate court of jurisdiction in a meritorious case, it is to be presumed the trial court will not allow it to be done. If, however, the reduction is permitted, the errors in the record will be shut out from our re-examination in cases where our jurisdiction depends upon the amount in controversy.' That case was stronger in favor of jurisdiction than this. There the reduction was made after verdict; here, before trial. The plaintiff, in effect, discontinued his suit as to part of the coupons. He certainly could have discontinued as to all, and it is difficult to see why he might not as to a part. The writ is dismissed for want of jurisdiction.

107.US.3

1. The Supreme Court of the District of Columbia is a court of the United States, and its judgment, when suit is brought thereon in any State of the Union, is, under the legislation of Congress, conclusive upon the defendant, except for such cause as would be sufficient to set it aside in the courts of the district. 2. A. recovered judgment in that court against B. and C., who, when sued thereon in a State court, filed their bill to enjoin the collection of so much thereof as they claimed was in excess of the amount due on the original cause of action, and alleged, as a ground of relief, matter available as a defence in the action at law, which they were not prevented from setting up by accident, or by the fraud of A., unconnected with the negligence of themselves or agents. The court perpetually enjoined A. from suing on the judgment on their paying into court that amount. They did so, and A. received it. The decree was affirmed by the court of last resort in the State. .Udd, 1. That, according to the law then in force in the District of Columbia, the give the required effect to the judgment, and this court has jurisdiction to re-examine it on a writ of error. 2. That A., by accepting the amount so' paid, is not estopped from prosecuting that writ.

A suggestion is made in argument that the plaintiff in error is estopped to prosecute this writ to the reversal of the decree below, because it appears that the amount of money ordered by it to be paid to him as a condition of relief granted has been accepted by him. It is said that this is a release of errors. Without entering upon a discussion of the general question, it is sufficient for the present purpose to say that no waiver or release of errors, operating as a bar to the further prosecution of an appeal or writ of error, can be implied, except from conduct which is inconsistent with the claim of a right to reverse the judgment or decree which it is sought to bring into review. If the release is not expressed, it can arise only upon the principle of an estoppel. The present is not such a case. The amount awarded, paid, and accepted constitutes no part of what is in controversy. Its acceptance by the plaintiff in error cannot be construed into an admission that the decree he seeks to reverse is not erroneous; nor does it take from the defendants in error anything, on the reversal of the decree, to which they would otherwise be entitled; for they cannot deny that this sum, at least, is due and payable from them to the plaintiff in error. But in every point of view the objection is met and answered by the decision of this court in the case of the U. S. v. Dashiel, 3 Wall. 688. The jurisdiction of the court invoked by this writ of error is conferred by section 709, Rev. St., it being a case in which a title or right is claimed under an authority exercised under the United States, and the decision of the state court being in denial of the title or right so asserted. It was decided in Dupasseur v. Rochereau, 21 Wall. 130, that such a question is undoubtedly raised whenever 'a state court refuses to give effect to the judgment of a court of the United States rendered upon the point in dispute, and with jurisdiction of the case and of the parties.' The judgment, which is the subject-matter of the litigation, is that of the supreme court of the District of Columbia, which is a court of the United States. The question we have to determine is whether the supreme court of errors of the state of Connecticut, in the decree complained of, gave to that judgment its due effect. Section 905, Rev. St., which embodies the original act of 1790, and the supplement thereto of 1804, provides that the records and judicial proceedings, not only of the courts of any state, but also of any territory or of any country subject to the jurisdiction of the United States, authenticated as therein prescribed, 'shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the state from which they are taken;' which, by supplying the ellipsis, must be taken to mean, such faith and credit as they are entitled to in the courts of the state, territory, or other country subject to the jurisdiction of the United States from which they are taken. So far as this statutory provision relates to the effect to be given to the judicial proceedings of the states, it is founded on article 4, § 1, of the constitution, which, however, does not extend to the other cases covered by the statute. The power to prescribe what effect shall be given to the judicial proceedings of the courts of the United States is conferred by other provisions of the constitution,—such as those which declare the extent of the judicial powers of the United States,—which authorize all legislation necessary and proper for executing the powers vested by the constitution in the government of the United States, or in any department or officer thereof, and which declare the supremacy of the authority of the national government within the limits of the constitution. As part of its general authority, the power to give effect to the judgment of its courts is co-extensive with its territorial jurisdiction. That the supreme court of the District of Columbia is a court of the United States, results from the right which the constitution has given to congress of exclusive legislation over the district. Accordingly, the judgments of the courts of the United States have invariably been recognized as upon the same footing, so far as concerns the obligation created by them, with domestic judgments of the states, wherever rendered and whereever sought to be enforced. Barney v. Patterson, 6 Har. & J. 182; Niblett v. Scott, 4 La. Ann. 246; Adams v. Way, 33 Conn. 419; Womack v. Dearman, 7 Porter, 513; Pepoon v. Jenkins, 2 Johns. Cas. 119; Williams v. Wilkes, 14 Pa. St. 228; Turnbull v. Payson, 95 U.S. 418; Cage's Ex'rs v. Cassidy, 23 How. 109; Galpin v. Page, 3 Sawy. 93-109. The rule for determining what effect shall be given to such judgments is that declared by this court, in respect to the faith and credit to be given to the judgments of state courts in the courts of other states, in the case of McElmoyle v. Cohen, 13 Pet. 312, 326, where it is said: 'They are record evidence of a debt, or judgments of record, to be contested only in such a way as judgments of record may be; and, consequently, are conclusive upon the defendant in every state, except for such causes as would be sufficient to set aside the judgment in the courts of the state in which it was rendered.' The question then arises, what causes would have been sufficient in the District of Columbia, according to the law then in force, to have authorized its courts to set aside the judgment recovered there by Embry against Stanton and Palmer? This is answered by the decision of this court, upon the point, in the case of Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch, 332. That was a bill in equity, filed in a court of the District of Columbia, perpetually to enjoin the collection of so much of a judgment at law recovered in the district as was in excess of an amount claimed to be the sum equitably due. The grounds of relief alleged were that a fraud had been practiced upon the underwriters in a valued policy of marine insurance, by an overvaluation of the ship, and that the complainant had been prevented from making the defense at law. Chief Justice MARSHALL, delivering the opinion of the court, affirming the decree of the court below dismissing the bill, stated the rule as follows: 'Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. On the other hand, it may with equal safety be laid down as a general rule that a defense cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at law. In the case under consideration the plaintiffs ask the aid of this court to relieve them from a judgment, on account of a defense, which, if good anywhere, was good at law, and which they were not prevented, by the act of the defendants, or by any pure and unmixed accident, from making at law.' This was held to be the law prevailing in the District of Columbia, not by reason of any local peculiarity, but because it was a general principle of equity jurisprudence. It was repeated in Hendrickson v. Hinckley, 17 How. 443, where the rule was condensed by Mr. Justice CURTIS into the following statement: 'A court of equity does not interfere with judgments at law, unless the complainant has an equitable defense, of which he could not avail himself at law, because it did not amount to a legal defense, or had a good defense at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agents.' Creath v. Sims, 5 How. 192; Walker v. Robbins, 14 How. 584. It was reaffirmed in Crim v. Handley, 94 U. S. 652, and in Brown v. Co. of Buena Vista, 95 U. S. 157. This is the doctrine recognized and applied by the supreme court of errors of Connecticut in the case of Pearce v. Olney, 20 Conn. 544. That was a bill in equity to restrain the collection of a judgment recovered in New York, upon the ground that the complainant had a good defense at law to the action, which he was prevented from making by the fraud of the defendant. It was there said by that court: 'It is well settled that this jurisdiction will be exercised, whenever a party, having a good defense to an action at law, has had no opportunity to make it, or has been prevented by the fraud or improper management of the other party from making it, and by reason thereof a judgment has been obtained which it is against conscience to enforce.' Then stating that the action was founded on an alleged contract, on which the complainant was not personally liable, having been made by him as agent for a corporation, and that this was known to the party suing, the court continue: 'If this was all, the plaintiff would have no remedy, however unjust it might be to compel him to pay that judgment. Still, as he was duly served with process in that suit, it was his duty to make defense in it; and an injunction ought not to be granted to relieve him from the consequences of his own neglect.' The court then proceeds to show that he not only had a good defense, but that it was his intention to make it, which he would have done had he not been led by the assurances of the attorney for the plaintiff in the action to believe that it had been abandoned, so that its subsequent prosecution, without further notice, operated as a surprise, tantamount to a fraud; and that, consequently, there was no ground on which to impute laches to the complainant in not defending himself at law. A subsequent action was brought in New York upon the same judgment by an assignee of the plaintiff, to which the defendant set up as a bar the Connecticut decree perpetually enjoining its execution, which, by the judgment of the court of appeals of New York, was sustained. Dobson v. Pearce, 12 N. Y. 156. The court said, (page 167:) 'The decree of the court of chancery of the state of Connecticut, as an operative decree, so far as it enjoined and restrained the parties, had and has no extraterritorial efficacy, as an injunction does not affect the courts of this state; but the judgment of the court upon the matters litigated is conclusive upon the parties everywhere, and in every forum where the same matters are drawn in question. It is not the particular relief which was granted which affects the parties litigating in the courts of this state; but it is the adjudication and determination of the facts by that court—the final decision that the judgment was procured by fraud—which is operative here, and necessarily prevents the plaintiff from asserting any claim under it.' The same rule, as to the jurisdiction in equity to enjoin the enforcement of judgments at law, was declared by the supreme court of errors of Connecticut in the case of Carrington v. Holabird, 17 Conn. 530, in these words: 'This jurisdiction will be exercised where to enforce a judgment recovered is against conscience, and where the applicant had no opportunity to make defense, or was prevented by accident, or the fraud or improper management of the opposite party, and without fault on his own part.' To the same effect is the case of Borland v. Thornton, 12 Cal. 440, where the subject is discussed and the authorities cited. These, then, are the principles which should have governed the supreme court of errors of Connecticut in the proceedings and judgment now under review. It remains to ascertain whether they were in fact applied in its dealing with the judgment sought to be enforced by the plaintiff in error. No question is made of the right of that court to entertain the jurisdiction to enjoin proceedings upon the judgment, notwithstanding it was the judgment of a court of the United States. It had jurisdiction of the person of the plaintiff in error, who was himself seeking the aid of the courts of that state in his suit at law upon the judgment for the purpose of enforcing it. Nor is any inquiry opened, upon this writ of error, as to any matter of fact found in the record before us. The facts, as ascertained and acted upon by the state court, are assumed to be true. They are contained in the report of the committee appointed to hear the evidence and report his conclusions of fact, which were accepted by the court, and they are not the subject of any exception. The supreme court of errors of Connecticut state the grounds of their judgment in the report of the case, (Stanton v. Embry, 46 Conn. 595,) and hold that upon its circumstances it comes within the rule laid down in Pearce v. Olney, 20 Conn. 544, already noticed. The conduct of the plaintiff in error, alleged as the ground for granting the relief decreed, is that he 'unintentionally gave them [the complainants] every reason for thinking that he did not believe that he had any right to ask for a judgment for a larger sum, and, of course, that he would not; he unintentionally led them to believe, and act upon the belief, that the only loss which could possibly ensue from either a partial or a total omission of preparation for trial would be the sum of $2,296.25.' The solitary fact upon which these inferences rest is that the plaintiff in error originally presented an account for payment, claiming that sum as a commission at the rate of 5 per cent. upon the amount collected, and the complainants refusing to pay any part of it, on the ground of defenses which applied to the whole of it, brought his first suit in Connecticut against them, and in his declaration joined a special count on an agreement for this rate of compensation, with a general count upon a quantum meruit. The declaration in the action, in which judgment was rendered by the supreme court of the District of Columbia, contained two similar counts. It is argued from this that the claim for $10,000 damages, appropriate to the quantum meruit count, could only have been regarded as a form of pleading, not calculated to remove from the minds of the defendants sued 'the effect produced by the precise and explicit statement of the bill of particulars;' which, regarding as obtained presumptively from the papers of the decedent, they had a right to treat as 'equivalent to a declaration that those papers furnished positive evidence that there was a contract calling for payment at that rate;' that the plaintiff in error by 'no act or word gave any intimation that he considered himself entitled to or intended to claim more;' and that all this was 'calculated to and did in fact produce the belief on their part that no more would in any event be asked of the court than to assess the damages according to the terms of the contract.' It is admitted, however, that the plaintiff in error did not know of the alleged special contract; that he did not intent to give to the defendants in error any assurances on the subject and that he did not know that they were relying upon what they now allege has misled them. In all this there is certainly no fraud; in fact, there is not enough to suggest a fault on the part of the plaintiff in error. He presented an account, which, it is now confessed, for them, if not by them, that the defendants in error ought at the time to have paid. This they refused to do, denying all liability for any amount, on the ground that no legal claim could arise for services, such as were rendered, no matter how valuable they had been. Suit was then brought upon the claim, both upon an express and an implied contract. It was contested at every point. The parties were adversaries, and there is no ground whatever for any claim on the part of the defendants in error that they were relying upon assurances of any character upon the part of Embry. If they took anything for granted, it was upon their own responsibility and at their own risk. They neither expected nor feared a recovery against them for any excess beyond the contract rate, because they were confident they would defeat it altogether. Embry was an administrator. He had sought to obtain payment without litigation, and failed. It was his duty to sue for and recover whatever the law would give him. He owed no duty to his adversaries, except the opportunity of defense. That they have enjoyed, if not improved; and if it has not been as available as it would have been in case they had limited themselves, as they claim their opponent should have done, to the special contract, which they now insist was binding upon both him and them, it was, as found in this record, in part at least, 'because their counsel had undue confidence in legal defenses against the entire demand, and therefore did not apprehend the full importance to the interests of his clients of being prepared with proof of the special agreement.' That agreement they sought to avoid, on the ground that it was illegal and immoral to contract for any compensation for the services rendered; and having deliberately staked their case upon that single issue, they seek to impute to their adversaries the responsibility of their own mistake. The laches of the defendants in error is equally manifest. One of them was absent from the trial; the report of the committee states that 'his attendance might have been secured by reasonable diligence, if such attendance had been deemed very important.' The other was in Washington, but too ill to attend the trial. His counsel asked a postponement on that account, but, as the report continues, 'no affidavit was offered in support of the motion, and it was denied. The petitioners' counsel appears to have been content to proceed with the trial in the absence of his clients. He had full and, as it turned out, undue confidence in the legal defenses which appeared by the record to have been set up at the trial, and took it for granted that in no event could more be recovered than $2,296.29.' There were two letters from Mr. Atkinson to the defendants in error in their possession, and not known to the plaintiff in error, expressly referring to the special agreement as fixing the rate of compensation, which might have been produced on the trial, but were not. They had escaped the recollection of the active partner, Stanton, who, for the preparation of the defense, had placed in the hands of his counsel in Washington all the papers which he supposed related to the subject of the suit. The letters referred to were not found by him until after the trial and disposition of the case in the supreme court of the District of Columbia. It is entirely clear from this statement that the defendants in error are chargeable with carelessness and want of diligence in not making and sustaining the defense on the ground of an express agreement for a fixed rate of compensation. It is fully accounted for by the other facts in the case. The report of the committee states that they were 'not alive to the importance of being prepared at the trial in Washington with the proof of the special agreement which the letters furnished;' and for the reason that they took it for granted, without sufficient grounds, as we have already seen, that no recovery could be had for a larger amount, and this was based chiefly on their overweening confidence in wheir ability to defeat the recovery altogether. But this is not all. The question whether there was not a special agreement limiting the compensation, as appears by the record in the case, was left to the jury upon evidence submitted. It was one of the points of the issue, and was so regarded by both parties. The counsel for the defendants in error asked an instruction to the jury on the subject, and the court did instruct the jury in reference to it. After the verdict, a motion for a new trial was made on the two grounds—First, that the damages were excessive; and, second, 'that since the trial evidence vital to the case has been discovered.' That motion was overruled and an appeal was taken to the general term, where the judgment was affirmed. The motion for a new trial does not disclose what new evidence had been discovered, nor was any affidavit filed setting out its materiality, the circumstances of its discovery, and the reasons why it could not have been produced at the trial. There is no reason to doubt but that the evidence in question consisted of the very letters referred to. It thus appears that after the trial, and after the consequences of the failure of the defendants in error to make good the defense now relied on had become manifest, they had the opportunity to bring the very matter to the attention of the supreme court of the district, and did in fact appeal to its discretionary power to grant a new trial for reasonable and sufficient cause. The motion for a new trial was made March 17, 1873, was not overruled at special term till April 19, 1873, and the appeal to the general term was not disposed of until October 27, 1873; and, in fact, owing to an irregularity in the entry of judgment, the verdict was under the control of the court until September 28, 1874. During this interval there was ample time in which to present the facts and the application, and all illusions as to the intentions of the plaintiff in error had been dispelled by the trial and verdict. If it was not brought forward it was from pure neglect. If it was, as it appears to have been, a court of competent jurisdiction has passed upon the very matter sought to be again litigated in the courts of Connecticut. The judgment of the supreme court of the District of Columbia refusing to grant a new trial was final. It was not, for that cause, subject to be reviewed on an appeal or a writ of error in any superior jurisdiction, and, for the same cause, it is not to be reviewed elsewhere. In the case of Marine Ins. Co. v. Hodgson, supra, the court had refused (6 Cranch, 206) to permit the defendant to file the additional pleas raising the defense which was the basis of the application for relief in equity. 7 Cranch, 332. In the former case the court said, (6 Cranch, 217:) 'This court does not think that the refusal of an inferior court to receive an additional plea, or to amend one already filed, can ever be assigned for error. This depends so much on the discretion of the court below, which must be regulated more by the particular circumstances of every case, than by any precise and known rule of law, and of which the supreme court can never become fully possessed, that there would be more danger of injury in revising matters of this kind than what might result now and then from an arbitrary or improper exercise of this discretion.' In Crim v. Handley, 94 U. S. 652-659, it was said: 'Nor does the allegation that one of his witnesses was sick during the examination, that it impaired his recollection and rendered him incapable of stating material facts within his knowledge, afford any sufficient support to the present application. Accidents of the kind occasionally occur in the course of the trial; but the plain remedy for such an embarrassment is an application to the court to postpone the trial or continue the case, as the circumstances may require. Applications of the kind, if well founded, are seldom or never refused; but if a party elects to proceed and take his chance of success, he cannot, if the verdict and judgment are against him, go into equity and claim to have the judgment enjoined. If a witness is too unwell to testify understandingly, the proper remedy for the party is to move for a postponement of the trial; and if he elects to proceed and is unsuccessful, his only remedy is a motion for new trial to the court where the accident occurred.' The supreme court of errors of Connecticut rest their judgment upon another ground, which it is proper to examine and consider. It may be stated as follows: That Atkinson himself, if alive, could not have obtained a judgment, except upon his special contract, without such a suggestion of a falsehood as would have made it unconscionable for him to retain it; that the administrator, representing him, stands in no different position, as he is seeking to enforce a judgment, which his intestate could not equitably do; and that his having 'failed to come to the knowledge of the truth as to the debt, and in ignorance misled the court into the rendition of a wrongful judgment, does not destroy the right of the petitioners to have the wrong corrected now that it is pointed out.' But, in our opinion, this view cannot be maintained. It seems to constitute the plaintiff the guardian, not only of his own rights, but also of his adversary, and to relieve the latter from the obligation of taking any care of himself. We are not prepared to say that if Atkinson in his life-time had presented his account for the amount now admitted to be due upon the contract, and had been told by Stanton and Palmer that they repudiated all liability, on the ground that his services were illegal and against public policy, and therefore not entitled to compensation at all, he would have been guilty of any breach of law or morals in insisting upon whatever the law would award for their actual value. Certainly, he was not bound after that to confine his claim to the limits of a contract which the other parties refused either to recognize or perform; and if, on suit brought, he left them to use it as a defense, if they saw fit, or to waive it for the chance of defeating his recovery altogether, we know of no principle of equity which would forbid it. It is to be remembered that there is nothing unconscionable or oppressive in the judgment itself which is the subject of the present complaint. It represents, by the adjudication of a competent judicial tribunal, having full jurisdiction of the parties and the controversy, the reasonable, actual value of beneficial services rendered by Atkinson to the defendants in error. No fraud or unfairness was practiced by the plaintiff in error in procuring it. The defendants in error had abundant opportunity to make the defense they now urge, and if they failed to do so it was altogether their own fault. The judgment is conclusive between the parties, upon all the points made in the present suit, in the jurisdiction where it was rendered, and was entitled to be so regarded in the courts of Connecticut. In restraining further proceedings upon it, in the terms of the decree under review, the supreme court of errors of that state have not given it that due effect to which, under the authority of the constitution and laws of the United States, it is entitled. In that respect there is manifest error in its decree to the prejudice of the plaintiff in error, for which it must be reversed. It is accordingly so ordered, and the cause remanded to the supreme court of errors of the state of Connecticut, with instructions to reverse the decree of the superior court within and for the county of New London, and to direct that court to render a decree dismissing the bill.

107.US.323

The indorsee of "a promissory note negotiable by the law merchant," which the maker secured by a mortgage of land to the payee, is not precluded from maintaining a foreclosure suit in a court of the United States by the fact that the maker and the payee are citizens of the same State.

There is but a single question presented by this appeal, to-wit, whether, if a promissory note, negotiable by the law-merchant, is made by a citizen of one state to a citizen of the same state, and secured by a mortgage from the maker to the payee, an indorsee of the note can, since the act of March 3, 1875, c. 137, (1 Supp. Rev. St. 173,) sue in the courts of the United States to foreclose the mortgage, and obtain a sale of the mortgaged property. It was held in Sheldon v. Sill, 8 How. 441, that such a suit could not be maintained under the eleventh section of the judiciary act of 1789, because in equity the mortgage was but an incident of the debt, and as the indorsee could not sue on the note, he could not sue to enforce the mortgage. The language of Mr. Justice GRIER, speaking for the court in that case, is this, (p. 450:) 'The complainant in this case is the purchaser and assignee of a sum of money, a debt, a chose in action, not of a tract of land. He seeks to recover by this action a debt assigned to him. He is, therefore, the 'assignee of a chose in action,' within the letter and spirit of the act of congress under consideration, and cannot support this action in the circuit court of the United States, where his assignor could not.' This clearly implies that if a suit could be brought on the note, it could for the foreclosure of the mortgage, should there be no other objection to the jurisdiction than the citizenship of the payee and maker. In the judiciary act of 1789 it was expressly provided that the circuit courts could not take cognizance of a suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the contents, if no assignment had been made, except in cases of foreign bills of exchange. The act of 1875, however, removes this restriction in suits on 'promissory notes negotiable by the law-merchant;' and now the jurisdiction in such suits is made to depend on the citizenship of the parties as in other cases. Since, therefore, the indorsee could have sued in the circuit court on the note now in question, it follows that, as there is no objection to the jurisdiction other than the citizenship of the original payee, the suit to foreclose the mortgage was properly brought. The decree is affirmed.

109.US.485

1. When an heir at law brings a suit in equity to set aside the probate of a will in Louisiana as null and void, and to recover real estate ; and prays for an accounting of rents and profits by an adverse party in possession, who claims under the will, this court will refuse to entertain the prayer for recovery of possession, if Ahe complainant has a plain, adequate, and complete remedy at the common law. Hipp v. Babin, 19 Howard, 271, affirmed. 2. Circuit courts, as courts of equity, have no general jurisdiction for annulling or affirming the probate of a will. Broderick's Will, 21 Wall. 603, affirmed. 3. Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States. So far as it is exparte and merely administrative, it is not conferred, and it cannot be exercised by them at all, until, in a case at law or in equity, its exercise becomes necessary to settle a controversy of which a court of the United States may take cognizance by reason of the citizenship of the parties. 4. If by the law obtaining in a State, a suit whose object is to annul and set aside the probate of a will of real estate can be maintained, it may be maintained in a federal court, when the parties are on one side citizens of the State in which the will is proved, and on .the other citizens of other States. Gaines v. -uentes, 92 U. S. 18, approved. 5. By the laws of Louisiana an-action of revendication is the proper one to be brought for the purpose of asserting the legal title and right of possession of the heir at law to the succession, when another is in possession nuider claim of title by virtue of a -will admitted to probate. In a proper case as to parties this action can be brought in the Circuit Court of the United States. And as it furnishes a plain, adequate and complete remedy at law, it is a bar to the prosecution of a suit in chancery. 6. In regard to the transfer of the Beauvoir estate to the defendant by the testatrix in her lifetime, no fraud is shown to warrant the interference of a court of equity.

The appellants, who were complainants below, are alleged in the bill of complaint to be, respectively, citizens of New York or Missouri, or British subjects and aliens, the defendant being a citizen of Mississippi. It is set forth in the bill that Sarah Ann Dorsey died on July 4, 1879, seized in fee-simple of certain real estate, consisting of two plantations in Tensas parish, in Louisiana, an estate called Beauvoir and other property in Harrison county, Mississippi, and real estate, not described, in Arkansas, besides a large amount of movable and personal property, rights and credits, also not described; that she died, leaving no heirs in the ascending or descending lines, the appellants being her next of kin and sole legal heirs in the collateral line, entitled to succeed, in case of intestacy, to the whole of her estate; that during her life-time, on May 10, 1878, Mrs. Dorsey, by a notarial act of procuration, constituted the defendant her agent and attorney in fact, with full and special powers to take exclusive control, charge, and management of all her property and estate, and all transactions and business in any manner connected therewith, including the power 'for and in her name to sue and to be sued, to purchase, lease, alienate, or incumber real estate situate anywhere, to borrow money, execute notes, or other evidences of indebtedness; that, in virtue of said agency, the defendant entered upon and assumed the exclusive management of said property and business, and took possession of all account-books, title deeds, and papers thereto appertaining, and continued in the exclusive control, management, and possession as said agent to the time said agency expired by the death of the principal, and since her said death has still continued in said exclusive possession, management, and control, that though, on the expiration of said agency, it was incumbent on and the duty of said defendant to render to said heirs, all of whom, and their respective rights, were well known to him, a full, fair, and correct account of his administration of said agency, and to surrender to them, all and singular, the said property, account-books, title deeds, papers, etc., which had then come into his possession, and which your orators had well hoped he would have done, yet, on the expiration of his said agency, said defendant, notwithstanding amicable demand, refuses still so to do.' It is further alleged in the bill that the defendant claims that the said Sarah Ann Dorsey, by her last will and testament, bequeathed to him all her property, for his own sole use and benefit, and thereby constituted him her sole heir and executor, and that, by virtue thereof, he is entitled in his own right to said estate; and the bill admits that on July 15, 1879, the defendant caused to be filed in the second district court for the parish of Orleans an instrument written and signed by Sarah Ann Dorsey, of which the following is a copy: 'BEAUVOIR, HARRISON CO., MISS, Jan. 4, 1878. 'I, Sarah Ann Dorsey, of Tensas parish, La., being aware of the uncertainty of life, and being now in sound health in mind and body, do make this my last will and testament, which I write, sign, and seal with my own hand, in the presence of three competent witnesses, as I possess property in the states of Louisiana, Mississippi, and Arkansas. I own no obligation of any sort whatever to any relation of my own; I have done all I could for them during my life; I therefore give and bequeath all my property, real, personal, and mixed, wherever located and situated, wholly and entirely, without hindrance or qualification, to my most honored and esteemed friend, Jefferson Davis, ex-president of the confederate states, for his own sole use and benefit, in fee-simple, forever; and I hereby constitute him my sole heir, executor, and administrator. If Jefferson Davis should not survive me, I give all that I have bequeathed to him to his youngest daughter, Varina. 'I do not intend to share the ingratitude of my country towards the man who is, in my eyes, the highest and noblest in existence. 'In testimony whereof I sign this will, written with my own hand, in the presence of W. T. Watthall, F. S. Hewes, and John C. Craig, subscribing witnesses, resident in Harrison county, Mississippi. [Signed] 'SARAH ANN DORSEY. 'At Mississippi City, on the fourth day of January, eighteen hundred and seventy-eight, the above-named Sarah Ann Dorsey signed and sealed this instrument, and published and declared the same as and for her last will, and we, in her presence and at her request, and in the presence of each other, have hereunto subscribed our names as witnesses. 'W. T. WATTHALL. 'F. S. HEWES. 'JOHN C. CRAIG.' But it is charged that the pretended will is not valid, but is void, because at the time of writing and signing the same Sarah Ann Dorsey was not of sound and disposing mind, because the same was written and signed by her when under the undue influence of the defendant, which undue influence excited and aggravated the causes depriving her of a sound and disposing mind, rendering her more susceptible to such undue influence, and because the motive and object inducing and controlling the testatrix to make the same were contrary to law. The bill then proceeds to recite in detail a narrative of facts alleged in support of these charges affecting the testamentary capacity of Mrs. Dorsey and the integrity of the execution of the instrument as her testament; and alleges further that the defendant, 'though in nowise ignorant of the premises hereinbefore set forth touching the nullity of said alleged will,' nevertheless resorted to proceedings before the second district court for the parish of Orleans for the probate thereof, 'ex parte and without any previous notification thereof, judicial or extrajudicial.' And it is thereupon further alleged: 'That by said proceedings it appears that on the fifteenth July, 1879, defendant, through his attorneys, filed his certain petition, in which he alleges that by the tenor of the last will and testament of Mrs. Sarah Ann Dorsey, dated forth January, 1878, he is made the legatee and executor of the deceased; that said will had been on said day filed, and which he prays might be duly proved according to law; that thereupon an order was obtained that said will should be proved before the judge of said court forthwith; that in accordance with said order, and on proof that said instrument was wholly written, dated, and signed in the handwriting of the testatrix, (the only proof essential under the laws of Louisiana and the practice of its courts for an ex parte probate of an olographical will,) and on the further (and unusual in such ex parte probate) sworn statement of two of the subscribing witnesses that 'the testatrix, Mrs. Sarah Ann Dorsey, at the time of the execution of the aforesaid will, was of sound and disposing mind, a decree of probate, in usual form, was rendered, decreeing the probate and registry of the will and execution of its provisions, including the issuing of letters of executorship, on defendant's complying with the provisions of law. 'That by said proceedings it further appears that without previously qualifying as excutor, or applying for an order of inventory, or in any manner showing to the court the amount of the indebtedness of the succession; without tendering any security to creditors, or deferring his application for a reasonable time within which creditors might, should they desire, demand of him security, or heirs might contest the validity of the will, or any of its provisions, or the sufficiency of the testimony of its probate,—proceedings not only usual, but, as to most of them, essential prerequisites to any demand by a testamentary heir or universal legatee to be put in possession of an estate; yet, notwithstanding this, said defendant, on the said fifteenth July, by representing to the court that the testatrix left no forced heirs and owed no considerable debts, that he was willing to accept and take the succession pure and simple, and that in his opinion 'there is no necessity of further administration,' obtained an order 'that, as the sole and universal legatee of the late Sarah Ann Dorsey, petitioner, Jefferson Davis, be put in possession of all the property, real, personal, and mixed, left by her, and whereever situated.' 'That by said proceedings and decrees said second district court ceased to have jurisdiction over or regarding the administration of said succession, and, owing to his citizenship and the limited jurisdiction of said court, defendant in the premises ceased to be in any manner further amenable or subject to its jurisdiction. 'That although said proceedings and decrees, as your orators are advised, are not res adjudicata against them, yet, nevertheless, in virtue thereof, said will and its order of probate are and will remain a muniment of title in defendant to all and singular the estate of said Sarah Ann Dorsey so long as said will and order of probate shall remain unannulled and unrevoked through judicial proceedings had contradictorily with said defendant.' And it is further alleged that this decree of probate was unadvisedly rendered, and should be revoked, canceled, and recalled, for the reasons rendering said will, of which it is the probate, null and void, and because the testimony given in support of the probate was false and erroneous, and because, even if uncontradicted, it would be insufficient. It is further charged in the bill that the defendant also claims title to the estate in Mississippi called 'Beauvoir,' by virtue of a sale to him of said property, and a conveyance thereof made by Sarah Ann Dorsey, February 19, 1879, a copy of which is set out, which the appellants aver, however, to be null and void, for the same reasons on which they allege the will to be void, and because at the time the defendant occupied towards the said Sarah Ann Dorsey such a relation of trust and confidence as that he had no right to purchase the property, and that his consent to the sale thereof to himself, without security for the payment of the price, which was below its value, was a violation of his trust, for which reasons, it is claimed, said sale should be canceled and annulled. It is also alleged in the bill, 'that, owing to the complicated character of the said agency thus held by defendant, an account thereof, as herein demanded, cannot properly be taken except in a court of equity.' 'And that it may be decreed that the said alleged will of the said Sarah Ann Dorsey, dated 'Beauvoir, Harrison county, Mississippi, January 4, 1878,' and filed in the second district court for the parish of Orleans in the record of her succession, under No. 41,376 of the docket, on the fifteenth July, 1879, be canceled and annulled as absolutely void and of no effect in law; and that the decree of probate of said alleged will, and the decree recognizing said defendant to be the sole and universal legatee of said Sarah Ann Dorsey, and as such ordered to be put in possession of all the property left by her, whereever situated, both rendered on said fifteenth July, 1879, and in extenso set forth in Exhibit B, be revoked, canceled, and recalled as absolutely void and of no effect in law, and that the alleged sale and conveyance of property situate in Harrison county, Mississippi, by said Mrs. Dorsey to defendant, on the nineteenth February, 1879, and in extenso set forth in Exhibit C, be canceled and annulled as absolutely void and of no effect in law, in so far as either said will, decree of probate, decree of possession, or sale, in any manner to be pleaded by defendant as recognizing him as testamentary heir and universal legatee of said Sarah Ann Dorsey, or as a muniment of title or legal bar against your orators or their coheirs as her legal and sole heirs, and as such entitled to the ownership and possession of all and singular the property belonging to her estate, and which in any manner has come into the possession of said defendant, either as agent or trustee. 'And that it be further decreed that said defendant come to a full and fair account of all and singular his acts and doings of his agency under the said act of procuration of May 10, 1878; and that it be decreed the defendant furnish to this honorable court a full and detailed statement of all properties, real and personal, of said Sarah Ann Dorsey, which came into his possession or under his control and management as her agent, or of which he has taken possession undeer and by virtue of said alleged will or said decrees of the second district court of July 15, 1879, or said alleged sale of February 19, 1879. 'And that it be further decreed that said defendant at once surrender unto orators, and, if so desired by them, jointly with their coheirs, the possession of all said property, including all books, papers, evidences, title-deeds, etc., which, belonging to said estate, at any time since May 10, 1878, has come into his possession. 'And that defendant be perpetually enjoined and restrained by the decree of this court from setting up or pleading said alleged will, said decree of probate, said decree of possession, and said act of sale, or any title, right, or claim thereunder, against your orators as next of kin and legal heirs of said Mrs. Sarah Ann Dorsey. 'And that it be further decreed that defendant make a full and true discovery and disclosure of and concerning all and singular the transactions and matters appertaining to or connected with his said agency, as well during the life-time as since the death of his principal. And that defendant may be decreed to come to an account with your orators, to be taken by and under the direction and decree of this honorable court, of all his dealings and transactions under the agency assumed by him under the act of procuration of May 10, 1878, or as trustee since Mrs. Dorsey's death, and to pay over to orators what shall be found due to them by defendant upon the taking of said account.' To this bill the defendant below filed a demurrer, which demurrer was sustained, and a decree rendered dismissing the bill without prejudice, to reverse which this appeal is prosecuted. One of the main objects of this bill is to obtain from the defendant an account of the rents and profits received by him of the estate formerly belonging to Sarah Ann Dorsey, and, in order thereto, a declaration that the legal title to that estate is vested in them as her heirs at law and next of kin, in a decree that the alleged will under which the defendant claims, and the probate thereof, are null and void. It is admitted that the defendant is in possession, and that he holds adversely to the appellants; and there is a prayer in the bill for a recovery of the possession. In no respect does it differ from the frame of the bill in Hipp v. Babin, 19 How. 271. In that case the complainants sought by a bill in equity to recover possession of real estate to which they claimed title, as against a judicial sale, alleged to be void as against them, under which the defendants were in possession, and also for an account of rents and profits. The court refused to entertain the prayer for the recovery of the possession, on the ground that the remedy of the complainants at law was plain and adequate. It was urged that the bill would, nevertheless, lie for the account. To this Mr. Justice CAMPBELL, delivering the opinion of the court, replied as follows: 'Nor can the court retain the bill under an impression that a court of chancery is better adapted for the adjustment of the accounts for rents, profits, and improvements. The rule of the court is that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds have been stated to show that courts of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been successful at law has been allowed to file a bill for an account of rents and profits during the tortious possession held against him, or in which the complexity of the account has afforded a motive for the interposition of a court of chancery to decide the title and to adjust the account.' This case was cited, and its doctrine approved and applied, in the recent case of Root v. Ry. Co. 105 U. S. 189-219. In the present bill no circumstances are alleged to except the case from the general rule. The defendant did not sustain towards the complainants at any time any relation of trust and confidence; he was not their agent; and any right which they can assert against him for the rents and profits of the estate is altogether dependent upon their title to that estate, and cannot arise until that has been established. The title which they assert to that is not an equitable, but a legal title, as heirs at law and next of kin of Sarah Ann Dorsey, and is to be established and enforced by a direct proceeding at law for the recovery of the possession which they allege the appellee illegally withholds. There is no ground, therefore, on which the bill can be supported for the account as prayed for. It is contended, however, for the appellants that the bill ought to have been maintained, for the purpose of decreeing the invalidity of the will of Mrs. Dorsey and annulling the probate; so far, at least, as it gave effect to the will as a muniment of title. It is well settled that no such jurisdiction belongs to the circuit courts of the United States as courts of equity; for courts of equity, as such, by virtue of their general authority to enforce equitable rights and remedies, do not administer relief in such cases. The question in this aspect was thoroughly considered and finally settled by the decision of this court in the case of Broderick's Will, 21 Wall. 503. It was elaborately considered and finally determined in England by the house of lords in the case of Allen v. McPherson, 1 H. L. Cas. 191. In that country it was undoubtedly the practice of the courts of chancery to entertain bills to perpetuate the testimony of the witnesses to a will devising lands, at the suit of the devisee against the heir at law, it being alleged that the latter disputed its validity; and this, as Blackstone says, (3 Bl. Comm. 450,) 'is what is usually meant by proving a will in chancery.' It is also true that a bill in equity, in the nature of a bill of peace, or quia timet, would lie at the suit of a devisee against the heir at law, in which the validity of the will having been sustained by the verdict of a jury on the trial of an issue, devisavit vel non, a decree might be passed establishing the will and the title of the devisee under it, and perpetually enjoining the heir at law from setting up any claim of title against it. Story, Eq. Jur. § 1447. The heir at law, it was formerly held, was not entitled to file such a bill, for he could bring his action of ejectment and thus had his remedy at law; although such a bill would be entertained, if not objected to, or if there were any impediments to the proper trial of the merits on such an action. Bootle v. Blundell, 19 Ves. 494. The modern rule is 'that the usual and generally more convenient practice is to enable the heir to proceed by ejectment, but that it is open to the court to direct an issue, if from any cause that course appears desirable.' Boyse v. Rossborough, 6 H. L. Cas. 1-42. The manifest ground on which courts of equity in England proceeded in declining the jurisdiction in question was that, as to wills of personalty, the jurisdiction of courts of probate was exclusive, and that as to devises the remedy at law was plain, adequate, and complete. In this country, from a time anterior to the adoption of the constitution, the same distinction of jurisdiction has existed, all probate and testamentary matters having been confided either to separate courts of probate, under different denominations, or a special jurisdiction over them having been vested in courts having jurisdiction also over other subjects. For reasons growing out of our policy, which subjected real estate equally with personalty to the payment of debts, and in other respects freed it from feudal fetters, the probate jurisdiction was extended, but with varying effect in different states over wills of land, as well as of personal chattels, preserving, however, in some form, the rights and remedies of heirs at law to contest their validity. But it was almost universally recognized that no will could have effect, for any purpose, until admitted to probate and record by the local authority, although in some states, while the original probate was conclusive until set aside, for all purposes and as to all persons, in others it was conclusive, while in force at all, only as to personalty and for the purposes of administration, and not as a muniment of title as to devises. In states where it is held to have a conclusive force, formal modes are prescribed of contesting the validity of the instrument as a will, and of the regularity and legality of the probate, by suits regularly instituted solely for that purpose, and inter partes; but such proceedings are generally regarded as the exercise of probate jurisdiction, even if administered in courts other than that of original probate, but the judgment, as in other cases inter partes, binds only parties and privies. In those states where the probate, although conclusive while in force as to personalty and for the purposes of administration merely, is only prima facie evidence where the will is relied on as a muniment of title to real estate, its validity may become a question to be tried whenever and wherever a litigation arises concerning real property, the title to which is affected by it, just as in England, in actions of ejectment between the heir and the devisee, or those claiming through them. In a state, of which New York is an example, where, by its law, its own courts of general civil jurisdiction are authorized thus incidentally and collaterally to try and determine the question of the validity of a will and its probate in a suit involving the title to real property, there can be no question but that the circuit courts of the United States might have jurisdiction of such a suit by reason of the citizenship of the parties, and in exercising it would be authorized and required to determine, as a court administering the law of that state, the same questions. And where provision is made by the laws of a state, as is the case in many, for trying the question of the validity of a will already admitted to probate, by a litigation between parties in which that is the sole question, with the effect, if the judgment shall be in the negative, of rendering the probate void for all purposes as between the parties and those in privity with them, it may be that the courts of the United States have jurisdiction, under existing provisions of law, to administer the remedy and establish the right in a case where the controversy is wholly between citizens of different states. The judicial power of the United States extends, by the terms of the constitution, 'to controversies between citizens of different states;' and on the supposition, which is not admitted, that this embraces only such as arise in cases 'in law and equity,' it does not necessarily exclude those which may involve the exercise of jurisdiction in reference to the proof and validity of wills. The original probate, of course, is mere matter of state regulation, and depends entirely upon the local law; for it is that law which confers the power of making wills, and prescribes the conditions upon which alone they may take effect; and as, by the law in all the states, no instrument can be effective as a will until proved, no rights in relation to it, capable of being contested between parties, can arise until preliminary probate has been first made. Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States. So far as it is ex parte and merely administrative, it is not conferred, and it cannot be exercised by them at all until, in a case at law or in equity, its exercise becomes necessary to settle a controversy of which a court of the United States may take cognizance by reason of the citizenship of the parties. It has been often decided by this court that the terms 'law' and 'equity,' as is used in the constitution, although intended to mark and fix the distinction between the two systems of jurisprudence as known and practiced at the time of its adoption, do not restrict the jurisdiction conferred by it to the very rights and remedies then recognized and employed, but embrace as well not only rights newly created by statutes of the states, as in cases of actions for the loss occasioned to survivors by the death of a person caused by the wrongful act, neglect, or default of another, (Ry. Co. v. Whitton, 13 Wall. 287; Dennick v. Railroad Co. 103 U. S. 16,) but new forms of remedies to be administered in the courts of the United States, according to the nature of the case, so as to save to suitors the right of trial by jury in cases in which they are entitled to it, according to the course and analogy of the common law. Ex parte Boyd, 105 U. S. 647; Boom Co. v. Patterson, 98 U. S. 406. In Hyde v. Stone, 20 How. 170-175, it was said by Mr. Justice CAMPBELL, delivering its opinion, that 'the court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the states, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power.' In Payne v. Hook, 7 Wall. 425, it was decided that the jurisdiction of the circuit court of the United States, in a case for equitable relief, was not excluded because by the laws of the state the matter was within the exclusive jurisdiction of its probate courts; but, as in all other cases of conflict between jurisdictions of independent and concurrent authority, that which has first acquired possession of the res, which is the subject of the litigation, is entitled to administer it. Williams v. Benedict, 8 How. 107; Bank of Tennessee v. Horn, 17 How. 160; Yonley v. Lavender, 21 Wall. 276; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 454; Hook v. Payne, 14 Wall. 255. It was said by this court in Gaines v. Fuentes, 92 U. S. 10-18, Mr. Justice FIELD delivering its opinion, that 'the constitution imposes no limitation upon the class of cases involving controversies between citizens of different states, to which the judicial power of the United States may be extended; and congress may, therefore, lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the federal judiciary.' And, referring to the nature of suits which, as in that case, sought to annul the probate of a will and adjudge it to be invalid, the court further said, (page 20:) 'And if by the law obtaining in the state, customary or statutory, they can be maintained in a state court, whatever designation that court may bear, we think they may be maintained by original process in a federal court, where the parties are, on the one side, citizens of Louisiana, and, on the other, citizens of other states.' As that was a case in which the sole question decided was the right of the defendant to remove the cause from the state court to the circuit court of the United States, under the act of March 2, 1867, (14 St. 558,) it was assumed, and not decided, that the said suit brought in the state court was one which, under the laws of the state, its courts were authorized to entertain for the purpose of granting the relief prayed for. The point decided was, that if it were it might properly be transferred to a court of the United States. It remains, therefore, in the present case to inquire whether the complainants are entitled, under the laws of Louisiana, to draw in question, in this mode and with a view to the decree sought, the validity of the will of Sarsah Ann Dorsey and the integrity of its probate. An examination of the decisions of the supreme court of Louisiana on the subject will disclose that a distinction is made in reference to proceedings to annul a will and its probate, according to the objects to be accomplished by the judgment and the relation of the parties to the subject. If the administration of the succession is in complete and in fieri, and the object is to alter or affect its course, the application must be made to the court of probates, which, in that case, has possession of the subject and exclusive jurisdiction over it. If, on the other hand, the succession has been closed, or has proceeded so far that the parties entitled under the will have been put in possession of their rights to the estate, then the resort of adverse claimants must be to an action of revendication in the courts of general jurisdiction, in which the legal title is asserted as against the will claimed to be invalid, making an issue involving that question. In O'Donogan v. Knox, 11 La. 384, the supreme court of Louisiana said: 'It appears, then, that the jurisdiction of the courts of probate is limited to claims against successions for money, and that all claims for real property appertain to the ordinary tribunals and are denied to courts of probate. The plaintiff in this case was therefore compelled, in suing for the property of the succession, to seek redress in the district court, and whether she attacked the will, or the defendant set it up as his title to the property, the court having cognizance of the subject must of necessity examine into its legal effect. And although the will may have been admitted to probate and an order given for its execution, yet these are only preliminary proceedings necessary for the administration of the estate, and not a judgment binding on those who are not parties to them. When, therefore, in an action of revendication a testament with probate becomes a subject of controversy, it will surely not be contended that a court of ordinary jurisdiction, having cognizance of the principal mattr, shall suspend its proceedings until another court of limited power shall pronounce upon the subject; for in that case the ordinary courts would submit to another tribunal the decision of the main question in the cause, without right of trial by jury, and would have little else to do than to comply with its decree.' In Robert v. Allier's Agent, 17 La. 4, the same court said: 'On the question of jurisdiction arising from the state of the case we understand the distinction repeatedly made by this court to be that whenever the validity or the legality of a will is attacked and put at issue, (as in the present case,) at the time that an order for its execution is applied for, or after it has been regularly probated and ordered to be executed, but previous to the heirs or legatees coming into possession of the estate under it, courts of probate alone have jurisdiction to declare it void, or to say that it shall not be excuted. This is the purport and extent of the decision in the case of Lewis' Heirs v. His Executor, 5 La. 387; Code Prac. art. 924, § 1. But when an action of revendication is instituted by an heir at law against the testamentary heir or universal legatee who has been put in possession of the estate, and who sets up the will as his title to the property, district courts are the proper tribunals in which such suits must be brought. 6 Mart. (N. S.) 263; 2 La. 23; 11 La. 388.' In Rachal v. Rachal, 1 Rob. (La.) 115, it is also said: 'We cannot consider the question of jurisdiction as an open one. The doctrine is now well settled that in a suit for property, whether the plaintiff attacks the will under which it is held or the defendant sets it up as his title to the property claimed, the courts of ordinary jurisdiction before whom the principal matter, to-wit, the action of revendication, is brought, must of necessity pronounce on the validity of the will which is thus drawn in question. The proceedings had in the court of probate for the settlement of the estate, such as the probate of the will and the order given for its execution, cannot have the effect contended for by the appellant; they cannot be considered as a judgment binding on the plaintiffs, who were not parties to them.' In Succession of Duplessis, 10 Rob. 193, it is said: 'This court has often held that the admission of a will to probate, and the order given of its execution, are only preliminary proceedings, necessary for the administration of the estate, and do not amount to a judgment binding on those who are not parties thereto.' To the same effect are Succession of Dupuy, 4 La. Ann. 570; Sophie v. Duplessis, 2 La. Ann. 724; Abston v. Abston, 15 La. Ann. 137. 'The petitioner himself shows that the defendant holds the property claimed from him under a will and confirmatory act, which she seeks to set aside. This she cannot effect except in a court of ordinary jurisdiction; i. e., in the district court.' In Hoover's Succession v. York, 30 La. Ann. 752, the suit was simply to annul a will and the probate of a will, and to have certain persons plaintiff declared heirs and entitled to take as such. This, it was declared, was purely a probate proceeding, and cognizable alone by the parish court in which the succession was opened. 'It was a matter incidental to the opening and settlement of the succession.' And the same principle governed the decision in Blasini v. Blasini's Succession, Id. 1388. That was an application in the probate court on the part of forced heirs, demanding that their rights as such, known under the law of Louisana as their legitime, of which their ancestor could not deprive them by his testament, should be recognized, so that they might receive their share of the succession. The effect of allowing it would be, not to annul or invalidate the will, but merely to displace it, in the administration of the succession, to the extent required by their indefeasible interest in it. It was objected to the jurisdiction of the court that the succession had been closed by a previous judgment sending the widow and testamentary heir into possession; but the exception was overruled on the ground that the suit was of probate jurisdiction. In Gibson v. Dooley, 32 La. Ann. 959, an action to annul a will, it was held, might be brought in the parish court, although the succession had been closed by a delivery of the property to the instituted heir. The rule, as laid down in Robert v. Allier's Agent, 17 La. 15, was cited and approved, but was held not to apply. The reason was given in these words: 'Here no action of revendication was instituted, but simply a suit for the nullity of the will. There is no prayer for ejectment, or that plaintiffs may be put into or quieted in their possession of property claimed under the will.' By the law of Louisiana (Code Prac. art. 4) a real action is given, which relates to claims made on immovable property, or to the immovable rights to which they are subjected, the object of which is the ownership or the possession of such property, and, when prosecuted by one having the title against the person in possession, is called the petitory action, and is the proper action for the recovery of an universality of things, such as an inheritance. Code Prac. art. 12. It is an action of revendication, (Id. art. 43,) and it is the proper one to be brought for the purpose of asserting the legal title and consequent right of possession of the heir at law to the succession, when another is in possession under claim of title by virtue of a will admitted to probate, as is abundantly shown by the citations already made from the decisions of the supreme court of Louisiana. We entertain no doubt that this action can be brought in a proper case as to parties in the circuit court of the United States. The Louisiana Code of Practice, art. 556 et seq., provides for an action of nullity, whereby definitive judgments may be revised, set aside, or reversed, which may proceed either on the ground of vices of from or upon the merits, as that the judgment was obtained through fraud, and is a separate action, commenced by petition, the adverse parties being cited as in other suits. This action, with reference to the jurisdiction of the courts of the United States, was the subject of consideration in Barrow v. Hunton, 99 U. S. 80; but the present is not an action of that description, for the relief prayed for is recovery of the possession of the inheritance, which, we have seen, must be prosecuted in an action of revendication. Whether the probate of a will is a definitive judgment which can be the subject of an action of nullity under these provisions of the Code of practice, is a question, therefore, which we are not called upon to discuss or decide. The case of Gaines v. Fuentes, 92 U. S. 10, was such an action of nullity; but, as before remarked, the point decided in that case was not that it would lie, according to the law of Louisiana, but that if it would lie in the state court it was removable to the circuit court of the United States, because it presented a controversy wholly between citizens of different states. The present suit is not an action of nullity, because it prays for the recovery of possession of the inheritance, to which the appellants claim the legal title as heirs at law of Sarah Ann Dorsey. That claim, as has been shown, is properly the subject of an action of revendication, which furnishes a plain, adequate and complete remedy at law, and consequently constitutes a bar to the prosecution of a bill in chancery. There is nothing left, therefore, as a ground of support for the present bill, except so much of the case made by it as rests upon the prayer for the cancellation of the sale and conveyance of the Beauvoir estate by Mrs. Dorsey in her life-time. That relief is claimed in part on the ground of a constructive fraud, growing out of the defendant's relation to her at the time as a confidential agent; but we see nothing in the circumstances as detailed to forbid such a transaction between the parties, and the charges of actual fraud and undue influence applicable to this sale, considered as detached from the rest of the case, are not of such character, even when admitted by the demurrer, as in law would justify a rescission. And as the case for relief as to this sale is not made independently, but only as part of the whole case intended to be presented by the bill, we conclude that it must fail with the rest. The demurrer was rightly sustained and the bill properly dismissed. The decree is affirmed.

107.US.123

jurisdiction erred in overruling the motion to set aside the indictment, and, consequently, that the Court of Appeals of Kentucky erred in affirming its judgment. The judgment of the Court of Appeals of Kentucky is reversed, and the cause remanded to that court, to'be thence remanded to the Fayette Circuit Court, with directions to set aside the indictment.

It is provided by the act of March 3, 1863, amending that of February 24, 1855, establishing the court of claims, 'that every claim against the United States, cognizable by the court of claims,'—that is, such as the government permits to be asserted against it by suit in that tribunal,—'shall be forever barred, unless the petition, setting forth a statement of the claim, be filed in the court or transmitted to it under the provisions of this [that] act within six years after the claim first accrues.' After providing that claims which had accued six years before the passage of that act shall not be barred if the petition be filed in, or transmitted to, the court within three years after the passage of that act, and after declaring that the claims of married women, first accrued during marriage, of persons under the age of 21 years, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in court or transmitted within three years after the disability has ceased, the statute proceeds: 'But no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively.' 12 St. p. 767, § 10. The same statute also provides that, in order to authorize a judgment in favor of any citizen of the United States, it shall be set forth in the petition that the claimant, and the original and every prior owner thereof, where the claim has been assigned, has at all times borne true allegiance to the government of the United States, and, whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to the rebellion against the government, which allegation may be traversed by the government; and if on trial such issue shall be decided against the claimant, his petition shall be dismissed. Id. 767. Appellant's claim arose on or about the last day of December, 1865. His petition was not filed within six years from that date, and not until November 22, 1872. The government pleaded limitation, and the petition was dismissed upon the ground that the claim was barred. Claimant was engaged in the service of the insurgent government, but he insists that in virtue of the amnesty proclamation of December 25, 1868, his disabilities were removed, and his rights, privileges, and immunities, under the constitution, restored. His specific contention is that, within the true meaning of the statute, his claim was not cognizable by the court of claims, and did not accrue, until he was in such position that he could invoke its jurisdiction. That, it is asserted, was impossible before the promulgation of the amnesty proclamation of December 25, 1868. We said in McElrath v. U. S. 102 U. S. 440, that the government could not be sued except with its consent, and that it may restrict the jurisdiction of the court of claims to certain classes of demands. The acts in question do contain restrictions which that court may not disregard. For instance, where it appears in the case that the claim is not one for which, consistently with the statute, a judgment can be given against the United States, it is the duty of the court to raise the question whether it is done by plea or not. To that class may be referred claims which are declared barred if not asserted within the time limited by the statute. What claims are thus barred? The express words of the statute leave no room for contention. Every claim—except those specially enumerated—is forever barred unless asserted within six years from the time it first accrued. And that there might be no misapprehension as to the intention of congress, the statute, after enumerating the cases to which the limitation of six years should not apply, declares that 'no other disability than those enumerated shall prevent any claim from being disbarred.' The court cannot superadd to those enumerated a disability arising from the claimant's inability to truthfully take the required oath. It has no more authority to ingraft that disability upon the statute than a disability arising from sickness, surprise, or inevitable accident, which might prevent a claimant from suing within the time prescribed. Appellant's claim, if any he has or had, accrued, within the meaning of the statute, when the government came under a legal obligation to pay the amount thereof. In other words, it accrued against the government when, had the transaction recited in the petition occurred with a citizen, it would have accrued against that citizen. That the claimant was, at that time, or any time prior to December 25, 1868, unable by reason of his connection with the rebillion—a circumstance for which the United States was in nowise responsible—to comply with the terms upon which the government had consented to be sued in the court of claims, is his misfortune, and cannot have the effect of enlarging the time fixed by the statute of limitations. His remedy, if the claim be a valid one, is to apply to the legislative department of the government. The courts cannot, in view of the language of the statute, exclude from computation, on the issue of limitation, the time intervening between the accruing of the claim in 1865 and the promulgation of the amnesty proclamation. The judgment must be affirmed. It is so ordered.

109.US.168

1. When it is within the discretion of the court below to grant or to refuse leave to file a cross-bill, the refusal to grant such leave is no ground of appeal. 2. The court will not review an alleged error respecting the proof in a railroad foreclosure suit and the allowance of amounts due to kolders of mor gage bonds, if "thee vidence presented before the master is not before it and if no objection to the Proof was taken below. 3.W hen mortgage creditors take no appeal from a decree of foreclosure, the court will not, in an appeal by the debtor, inquire whether the creditor should not have had more.

These are appeals from the final decree in a suit brought by the Liverpool, London & Globe Insurance Company to foreclose a mortgage given by the Indiana Southern Railroad Company to William H. Swift and Samuel J. Tilden, trustees, to secure an issue of bonds, 1,500 of which, amounting in the aggregate to $1,500,000, are held by the insurance company. The suit was begun in a state court on the thirteenth of June, 1868, but on the twenty-fourth of November, 1871, it was removed to the circuit court of the United States for the district of Indiana. Among the defendants when the removal was made, were the Ohio & Mississippi Railway Company, and the Fort Wayne, Muncie & Cincinnati Railroad Company. The Indiana Southern Company acquired its title to the mortgaged property in January, 1866, by purchase at a foreclosure sale of the property of the Fort Wayne & Southern Railroad Company. When this purchase was made the railroad was in an unfinished condition, and the Indiana Southern Company itself abandoned all work upon it early in 1867. A part only of the line was graded by these companies, and no ties or rails were ever laid by either of them. The Indiana Southern Company is confessedly insolvent. After the proceedings for the foreclosure of the mortgage of the Fort Wayne & Southern Company had been finished, after the mortgage by the Indiana Southern Company to Swift and Tilden had been executed, and after the commencement of this suit for its foreclosure, the Ohio & Mississippi Company, and the Fort Wayne, Muncie & Cincinnati Company, each purchased from the Fort Wayne & Southern Company a part of the line of that company, the purchasing companies intending to use the property purchased in the construction of their respective roads. They claimed that the proceedings for the foreclosure of the mortgage of the Fort Wayne & Southern Company were invalid, and that their title by purchased from that company was superior to the title of the Indiana Southern Company and its mortgagees. Upon their purchase they each entered into the possession of their respective portions of the old line, and proceeded to construct and finish their several roads thereon. On the twelfth of September, 1872, Swift and Tilden, the trustees of the Indiana Southern mortgage filed a cross-bill in the cause, the object and purpose of which was to foreclose the mortgage for the benefit of all bondholders, and to quiet their title as against the adverse claims of the Ohio & Mississippi, and Fort Wayne, Muncie & Cincinnati Companies. The Indiana Southern Company has never answered either the bill or the cross-bill, and on the twenty-fourth of September, 1872, an order was entered in due form that the bill and cross-bill be taken as confessed by that company. On the fourteenth of November, 1873, a reference to a master was ordered to ascertain and report the amounts due to bondholders on the Indiana Southern mortgage. On the eighteenth of December, 1873, the Ohio & Mississippi and Fort Wayne, Muncie & Cincinnati Companies each filed answers to the bill and cross-bill, setting up their respective titles, and what they had done pending the suit in the construction of their roads upon and over a part of the original right of way and grading of the Fort Wayne & Southern Company. Before this time an agreement of compromise had been entered into between the insurance company and the two purchasing railroad companies, to take effect if all the other parties in interest should give their assent. This assent does not appear to have been obtained. On the twenty-first of April, 1877, the master made a report, stating the amounts due the several bondholders who had proven their claims before him, and on the seventeenth of May the Indiana Southern Company filed exceptions to all his allowances. On the second of January, 1878, the same company appeared and moved to set aside the order referring the case to the master, and also for leave to file a cross-bill, the prayer of which was: (1) That the insurance company be required to take issue on the answers of the two railroad companies; (2) that the Indiana Southern Company might have leave to do the same thing; and (3) that a receiver be appointed to take the possession of the property from the two companies and hold it pending the suit. Leave to file this cross-bill was refused, but no action was taken directly on the motion to set aside the order of reference. On the second of July, 1879, William H. Guion, claiming to have an interest in the bonds held by the insurance company, filed a petition to be admitted as a party to the suit for his own protection. This petition was denied. On the twenty-eighth of January, 1880, both the trustees and the insurance company filed replications to the answers of the two rialroad companies, and the cause was thereupon submitted to the court, by all the parties who had appeared and pleaded, on the original and cross-bills, the answers thereto, the replications and proofs, and on consideration a decree was entered, finding due to the insurance company the full amount of the bonds held by it, principal and interest, being more than $2,000,000, and to the other parties who had presented their claims the sums reported in their favor respectively by the master. It then rodered a sale of the mortgaged property, subject 'to the right of the Ohio & Mississippi Railway Company, and the Fort Wayne, Muncie & Cincinnati Railroad Company, to remove from said right of way or real estate any ties, rails, and other structures by them respectively placed thereon, or, by proceedings under their power of eminent domain, to appropriate such portions of said right of way used and possessed by them respectively, on making compensation therefor in accordance with law.' From this decree the Indiana Southern Company took an appeal, giving security for costs only. Guion was also allowed an appeal on giving bond and security for costs, but the transcript does not show that he ever gave the bond. The objections made to the decree by the Indiana Southern Company are: (1) Because leave was refused the company to file its cross-bill; (2) because the amounts found due the respective bondholders were not supported by sufficient evidence; and (3) because of the reservations in favor of the Ohio & Mississippi and Fort Wayne, Muncie & Cincinnati Companies. The objection of Guion is that he was refused leave to become a party to the suit. As to the first objection of the railroad company, it is sufficient to say that it was, under the circumstances, clearly within the discretion of the court to refuse leave to file the cross-bill. The object of the railroad company a was to get replications to the answers of the two intervening, or, as they are called in the argument, intruding railroad companies, and the appointment of a receiver. The replications were afterwards filed by the insurance company and the trustees, and the case was clearly not one in which the appointment of a receiver would have been proper. If it had been, no cross-bill was necessary to get the appointment. The Indiana Southern Company was a party to the suit, and could move in that particular as well without as with the cross-bill. As to the second objection, while this point is made in the assignment of errors, it was not mentioned in the argument. The evidence presented to the master in support of the claims of the several appearing bondholders has not been set up. The master says they each presented sworn statements of their title, and also presented and filed with him their bonds and coupons. As no objections were made to any of the proof, the claims were allowed as presented. Under these circumstances, we cannot review the decree in this particular. As to the third objection, the railroad company has alone appealed. The bondholders and trustees under the mortgage are satisfied with the decree as it has been entered. The railroad company has no other property which can be subjected to the payment of the balance of the mortgage debt remaining due after the mortgage is exhausted, and if the mortgagees are satisfied with the security as it has been adjudged to them, we see no reason for inquiring, on the suggestion of the railroad company only, at this late day, whether they might not have had more. The petition of Guion was for leave to appeal from a decree in a suit to which he was not a party. We decided in Ex parte Cutting, 94 U. S. 14, that such an appeal could not be taken. He had applied for relief to become a party, but this leave was not given. So he is not a party to the decree from which he appeals. But if he is, he has never perfected an appeal by giving the necessary security. Under the appeal of the railroad company, the decree is affirmed, and the appeal of Guion is dismissed for want of jurisdiction.

109.US.522

A railway company contracted with paities associated together as a constructiqn. company for the construction of a portion of its road, the payment to be made in mortgage bonds. Two of the directors were also parties in the construction contract. As part of the transaction the other parties in the construction contract agreed to assume subscriptions by all individual directors of the railroad company to the capital stock of that company (which was worthless), and relieve them from all liability under it : Held, that the contract could not be enforced in equity when resisted by stockholders in the corporatirn ; and that mortgage bonds issued under it to the construction company were voidable at election of the parties affected by the fraud, while in the hands of parties who took from the construction company not in the ordinary course of business, but under circumstances which threw doubt upon their being holders for value or without notice: also, Held, that, notwithstanding the inyalidity of the contract, the holders of the bonds in a suit for the foreclosure of the mortgage were entitled to a decree for the payment of the sums actually'expended for construction under the contract, and remaining unpaid, which were payable and paid in bonds dedared void.

This is an appeal from a decree of the circuit court for the district of Nebraska dismissing appellant's bill for a foreclosure of a railroad mortgage. The mortgage was made by the Brownville, Fort Kearney & Pacific Railroad Company to secure the payment of bonds issued by said company to certain persons who had contracted to build its road, and to whom 610 of said bonds of $1,000 each had been delivered. There was a default in the payment of these bonds. After they were executed and delivered the Brownville & Fort Kearney Railroad Company became consolidated under the laws of Nebraska with the Midland Pacific Railroad Company, under the new name of the Nebraska Railway Company. In the bill of foreclosure both these companies—that is, the Brownville Company and the Nebraska Company are made defendants, and an answer confessing plaintiff's right to relief being filed, the court rendered a decree of foreclosure, and apparently a sale was had. But at this stage of the proceedings certain parties interested as stockholders of the original Brownville & Fort Kearney Company were permitted to make themselves defendants, and the first decree was vacated. These parties set up by way of answer and cross-bill that the contract for the construction of the road, on account of which the bonds were issued, was fraudulent and void, and so were the bonds issued under it, and they resisted the foreclosure of the mortgage on that account. The fraud charged in this answer and cross-bill is founded on two allegations: First. It is alleged that two of the board of directors who took part in making the construction contract were interested with the other parties in the contract. Second. That the other contractors besides these two made an agreement, at the same time that the construction contract was made, with 12 of the shareholders of the railroad company, that they would relieve them, as subscribers to the stock of said company, from the payment of any further assessments upon the stock which they had subscribed for, by paying out said stock and having same assigned to them; in all, not to exceed $16,500 of the $41,000 of individual subscriptions to said company. The names of the persons thus relieved by the construction company included all the directors of the railroad company at the time the contract for construction was made. As the stock was worthless, and these parties were liable to be called on to pay up this $16,500, the effect upon the directors in making a construction contract with the men who relieved them of their liability, two of them being also parties in the construction contract, is readily seen. These allegations are proved beyond question, and the circuit court held the contract void, and the bonds issued in fulfillment of it also void, and dismissed the bill. We concur with the circuit judge that no such contract as this can be enforced in a court of equity where it is resisted and its immorality is brought to light. But as this court said in the case of Twin Lick Oil Co. v. Marbury, 91 U. S. 587, such contracts are not absolutely void, but are voidable at the election of the parties affected by the fraud. It may often occur that, notwithstanding the vice of the transaction,—namely, the directors or trustees, or a majority of them, being interested in opposition to the interest of those whom they represent, and in reality parties to both sides of the contract,—that it may be one which those whose confidence is abused may prefer to ratify or submit to. It is therefore at the option of these latter to avoid it, and, until some act of theirs indicates such a purpose, it is not a nullity. In the present case the stockholders of the corporation, whose officers accepted those benefits at the hands of the parties, with whom they were, in the name of the corporation, making a contract for over a million of dollars, do denounce and repudiate that contract. The conduct of these directors is utterly indefensible. The case of Wardell v. Union Pac. R. Co. 103 U. S. 651, is in precise analogy to this. See, also, same case in 4 Dill. 330. The original contract being such that the contractors can maintain no suit on it, the bonds which they received are affected with the same vice, and cannot be enforced unless they are negotiable instruments in the hands of innocent holders for value. This principle is set up and relied on to reverse the decree, on the ground that the bonds are in the hands of the Burlington & Missouri River Railroad Company. This company is no party to the suit, but it appears in evidence that, while it has possession of these bonds, it did not receive them by any purchase in the ordinary course of business. They came into their possession as part of a transaction in which they purchased the consolidated Nebraska Company's railroad, and these bonds were probably taken as security against their being used to injure the title. It is also shown that, as further security in the same direction, the Burlington & Missouri Railroad Company yet retains $400,000 of the price of the road, which they agreed to pay. Under these circumstances we do not see that that company is in condition to avail itself of the doctrine of bona fide holders for value. But we are asked to reverse the decree so far as to permit the trustee in this case to recover such a sum as the construction company actually earned in building the road. The matter was referred to a master, who, on this hypothesis, reported that the contractors had done work for the railroad company, which it had accepted, to the value of $205,947.66 beyond what they had received payment for, except as it was paid by these bonds. He also reported that this work was of that much advantage to the company, and its value or cost is estimated as on a quantum meruit, without regard to the prices fixed by the contract. We are of opinion that appellant's view of this part of the transaction is sound. The bonds and mortgage in the hands of the trustee were issued in payment for this work. To the extent of $205,947.66 the consideration is good, and no sound principle is seen on which they cannot to that extent be enforced. To this extent they do not rest on the original contract, but on work, labor, and material actually furnished to the company and received by it. These services and materials are not estimated by the prices named in the contract, but by their real value to the company. In the analogous case of Wardell v. Union Pac. R. Co. 4 Dill. 339, the circuit court, after rejecting the fraudulent contract on the same grounds that we reject this one, said: 'By what rule shall we measure Mr. Wardell's rights? He has spent time and labor and money in discovering the mines, and in placing them in condition to be profitably worked. * * * Apart from the contract, and if it had never existed, he is entitled to a fair and reasonable compensation for his labor and time and skill. The fraud gives the railroad company no right to these without just compensation.' This ruling was affirmed in this court on appeal in the same case. 103 U. S. 659. See, also, Gardner v. Butler, 30 N. J. Eq. 702. There is another principle of equity jurisprudence which leads to the same conclusion. The stockholders who have resisted complainant's claim were not parties to the original suit for foreclosure, nor were they either necessary or proper parties as the case then stood. The decree and sale were made in a suit where all the usual parties to such a suit were agreed. These stockholders had no legal right to interfere. It was only by permission of the court that they were allowed to come in and contest the validity of the mortgage. In doing this they became actors. They filed their cross-bill. In this condition of the case they are amenable to the rule that they who seek equity must do equity. It is just that they should pay a fair price for what they have received; that this mortgage, given for the construction of the road, though excessive by reason of the fraud in the contract, should stand for the reasonable value of what the company actually received in the way of construction. To permit these intervenors to defeat the mortgage on any other terms would be unjust, and would make the court the instrument of this injustice. The decree of the circuit court must therefore be reversed, and the case remanded to that court, with directions for a decree in favor of the plaintiff for the sum of $205,947.66, with interest. If a sale becomes necessary this sum must be paid out pro rata on the bonds secured by the mortgage, on their being produced and canceled, or surrendered for cancellation, provided the road sells for so much. Mr. Justice FIELD and Mr. Justice MATTHEWS took no part in the hearing or decision of this case.

106.US.644

1. The loss of a draft is not sufficiently proved, to support a suit in equity thereon against the drawer or acceptor, by evidence that it was left with a referee appointed by order of court to examine and report claims against an estate in the hands of a receiver, and that unsuccessful inquiries for it have been made of the referee, the receiver, and the attorney for the pres. ent defendant in those proceedings, without evidence of any search in the files of the court to which the report of the referee was returned, or any application to that court to obtain the draft. 2. A decree of the Circuit Court, dismissing upon the merits a bill of which this court on appeal holds that there is no jurisdiction in equity, will be reversed, and the cause remanded with directions to dismiss the bill without prejudice to an action at law, and with costs in the court below, and each party to pay his own costs on the appeal.

L. L. Coburn and H. C. Whitney, for appellant. C. B. Lawrence, for appellee. GRAY J. This is a bill in equity, by which Rogers seeks to recover of Durant and seven others, as copartners under the name of James W. Davis & Associates, the amount due upon several drafts, some drawn, and some accepted or promised to be accepted, by that firm, and all alleged to have been held by the plaintiff and lost without his tault after maturity. The defense of Durant is twofold First, to the jurisdiction, because there is no sufficient proof of the loss of the drafts; second, to the merits, because he was never a member of the firm of James W. Davis & Associates. The court below, while inclining to the opinion that it had no jurisdiction, did not decide the case upon that ground, but upon the merits, and dismissed the bill generally. The testimony introduced to show the loss of the drafts, construing it most favorably for the plaintiff, proves no more than this: In a former suit in the supreme court of New York to wind up the affairs of the firms of James W. Davis & Associates and of Davis, Sprague & Co., a receiver was appointed, and the claims of creditors, including the plaintiff's, were presented to a referee appointed by the court, and by him reported to the court, and a dividend ordered and paid in part thereof. The drafts in question were handed by the plaintiff to Steiger, his attorney in New York, to be filed before the referee, and were so filed, and were afterwards delivered by the referee to the receiver. Neither the plaintiff nor Steiger had since seen them or known where they were; and Steiger had applied for them to the receiver, to his clerk, to the referee, and to Bell, Durant's attorney in New York, and believed, without any foundation beyond his own suspicion, that they were in Bell's possession. The original papers presented to the referee would properly be returned with his report to the files of the court which appointed him. Yet no search appears to have been made in those files, nor any application presented to that court for the delivery of the drafts of the plaintiff or his attorney. The plaintiff, having made no inquiry in the place in which the drafts would be most likely to be found utterly fails in his attempt to prove their loss. There being no sufficient evidence of loss, there can be no doubt that the case is one within the exclusive jurisdiction of a court of law; and it becomes unnecessary to consider the varying decisions in England and in this country upon the question under what circumstances a court of equity has jurisdiction of a suit upon a lost bill or note; or the voluminous proofs contained in the record upon the question whether Durant was a member of the firm of James W. Davis & Associates,—a question of which, for the reason already given, we have no jurisdiction in this case, and which, being a pure question of fact, can never be brought to this court in any future action at law. The decree of the circuit court, dismissing the bill generally, might be considered a bar to an action at law, and should therefore be reversed, and the cause remanded with directions to enter a decree dismissing the bill for want of jurisdiction, without prejudice to the right of the plaintiff to sue at law. Horsburg v. Baker, 1 Pet. 232; Barney v. Baltimore, 6 Wall. 280; Kendig v. Dean, 97 U. S. 423. In accordance with the spirit of the twenty-fourth general rule of this court, and under the discretionary power therein reserved, costs should not be allowed to the plaintiff, because, so far as concerns the present suit, the decree is wholly against the relief that he seeks; but the dismissal is to be with costs in the court below, and each party is to pay his own costs on this appeal. Decree accordingly.

107.US.215

1. Dutiable goods cannot lawfully be imported in the foreign mail under the International Postal Treaty of Berne of Oct. 9, 1874. 19 Stat. 577. 2. Such goods are, in the hands of the receiver of them from the post-office, subject to seizure; and the fact that there was no intent on the part of the sender or the receiver of them to defraud the United States of the duty, does not render the customs officer liable to an action for making the seizure.

This was a suit commenced before a justice of the peace by the plaintiff in error against the defendants for seizing and converting to their own use a flexible woolen scarf or shawl of the value of four dollars. It was removed into the circuit court of the United States by a writ of certiorari on the ground that Nazro was collector of customs of the United States for the port of Milwaukee, and that what was done in seizing the shawl was in the performance of his duty as such collector. On the trial in that court it appeared that the article in question came in a closed or sealed envelope by foreign mail from Germany, and the proper officer of the customs at Milwaukee, being notified to be present when the letter was delivered to and opened by plaintiff, seized it as forfeited under the customs laws of the United States. The jury being requested to make a special verdict, answered the questions propounded to them by the court as follows: 'Question 1. Was the article in question sent from a foreign country by mail, inclosed in a sealed envelope addressed to the plaintiff at Milwaukee, and was it transmitted by mail, thus inclosed, to its point of destination? Answer. Yes. Q. 2. Were the contents of the package disclosed by any writing placed upon it by the sender? A. Yes. Q. 3. Was the package received at the post-office in Milwaukee, and, if so, was the collector of customs for this district notified of its receipt? A. Yes. Q. 4. Was the package placed in the hands of the plaintiff by a clerk in the post-office, in the presence of the deputy collector, and did she open it? A. Yes. Q. 5. Did the deputy collector of customs then seize the article in question after it was opened? A. Yes. Q. 6. Did the collector thereafter cause said article to be appraised by the appraiser for this collection district, and did he refuse to surrender it to the plaintiff without payment of the amount of such appraisal? A. Yes. Q. 7. Was the article sent by mail for the purpose or with intent on the part of the sender or the plaintiff to avoid the payment of duties thereon. A. No. Q. 8. What was the value of said article on the twenty-first day of May, 1877? A. Four dollars.' And on this verdict the circuit court rendered a judgment for defendants, with costs. A bill of exceptions is signed embodying all the evidence in the case, from which it appears that there was no little ill-feeling in the case on the part of plaintiff and her attorneys, who refused to make application to the secretary of the treasury for a remission of the penalty, and that the seizure was reported to him and to the proper law officers by the collector. But as no ruling of the court was made on the admission or rejection of this evidence, and as no instructions of the court were given or asked, and no exceptions taken to any ruling of the court at the trial, the bill of exceptions is of no value here. The plea to the action was the general issue, and we must look alone to the special verdict to see if it justified the judgment of the court. The letter containing this scarf came from Germany to the United States under the international postal system, established by the treaty of Berne of October 9, 1874. The twenty-fifth article of the protocol to that treaty, which, under the signatures of the plenipotentiaries who negotiated it, is declared to be of the same force as if it was inserted in the treaty, provides that 'there shall not be admitted for conveyance by the post any letter or other packet which may contain either gold or silver money, jewels, precious articles, or any article whatever liable to custom duties.' 19 St. 604, art. 25. While some attempt in argument is made to show that, either by treaty or by act of congress, books, patterns of merchandise, and perhaps other articles, may come through the foreign mail without liability to forfeiture, it is sufficient to say that the article seized in this case was not sent as a sample, nor is it a book or other article asserted to be admissible. Its introduction into the United States in this manner is, therefore, forbidden by the express provisions of the postal treaty under which it came, which is the law of the land, and is unauthorized by any act of congress. No question is made in this case that the shawl was dutiable, or that the amount of the duty claimed on it was the proper duty. Being dutiable, its introduction by mail into the United States was forbidden by the treaty. The revenue laws of the United States require that every owner or consignee of property imported from other countries shall report the same to the customs officers before it is landed from the vessel, and shall furnish an invoice of its character and purchase price, for valuation, or that it may be seen if it is duty free, and all the vexatious and annoying machinery of the custom-house, and the vigilance of its officers, are imposed by law to prevent the smallest evasion of this principle. Of what avail would it be that every passenger, citizen and foreigner, without distinction of country or sex, is compelled to sign a declaration before landing, either that his trunks and satchels in hand contain nothing liable to duty, or, if they do, to state what it is, and even the person may be subjected to a rigid examination, if the mail is to be left unwatched, and all its sealed contents, even after delivery to the person to whom addressed, are to be exempt from seizure, though laces, jewels, and other dutiable matter of great value may thus be introduced from foreign countries. It is a violation of the law to introduce dutiable articles at all in that mode, and articles so introduced are liable to seizure for such violation. But the jury found that the shawl was not sent by mail for the purpose or with the intent, on the part of the sender or the plaintiff, to avoid the payment of duties thereon; and it is said that, under section 3082 of the Revised Statutes, the goods cannot be seized or forfeited unless fraudulently or knowingly imported contrary to law. 'If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited, and the offender shall be fined in any sum not exceeding $5,000, nor less than $50, or be imprisoned for any time not exceeding two years, or both.' The language of this section is that if a person fraudulently or knowingly brings into the United States, or assists in so doing, any merchandise contrary to law, the goods shall be forfeited, and the offender punished by fine and imprisonment; and while the jury negative the fraudulent intent, they do not negative the knowledge of the sender that the goods were sent in violation of law, or that they were dutiable goods. This fraudulent and guilty knowledge, however, relates mainly to the punishment of the offender by fine and imprisonment; and other sections, as 3061, authorize and direct the seizure of any property imported contrary to law, and the officer is to open envelopes for that purpose, and, on reasonable ground to believe it subject to duty or to have been unlawfully imported, he shall seize and secure the same for trial. In this case the article was unlawfully imported in a sealed envelope, and it was discovered and seized by the proper officer in the hands of the owner after she had opened it. There is no finding by the jury as to what he did with it, except that he had it appraised. But the presumption is that he did his duty, by notifying the officers whose business it was to institute proceedings for condemnation, and though we may not properly look at the bill of exceptions, which shows what he did with it, this is unnecessary, for if the seizure was rightful, there is no evidence whatever of a wrongful conversion. It has been suggested that by reason of section 16 of the act of June 22, 1874, (Supp. Rev. St. 80,) and the finding of the jury that there was no intention to defraud in this case, the defendants are liable. But that section relates to actions brought by the government to enforce the revenue laws by fine, forfeiture, and penalty, and declares that in such cases, unless there is a verdict of the jury or finding of the court that the alleged acts were done with an actual intention to defraud the United States, no fine, penalty, or forfeiture shall be imposed. If the plaintiff in this case shall, in any proceeding in court for its condemnation, appear and claim this property, or any suit shall be instituted against her personally for a violation of the revenue law, she can have the full benefit of this statute. Or, if she is impatient of the delay of the officers in instituting such proceeding, she can, under section 3076 of the Revised Statutes, cause such proceedings to be instituted, in which she can have the same relief. But if the present action be sustained on the ground of absence of fraudulent intention on her part, the officer making the seizure is held liable in the absence of such a proceeding though in such case the court might have protected him by a certificate of probable cause, and though he may have done his duty and been guilty of no conversion. Such a construction of the statute requires him to know the guilty or innocent intent of a party violating the law at the hazard of personal liability for the result. It is to be observed, also, that all the trouble, cost, and vexation of this suit could have been avoided by an application to the secretary of the treasury under section 5293, and the rules prescribed by that officer for such cases, when he would undoubtedly have remitted the forfeiture, on what were the undisputed facts of the case, on payment of the small sum assessed as the duty. We think that in making the seizure the defendants only did their duty, and, whatever the hardship to plaintiff, they are not liable in this action on the facts found in the verdict of the jury. The judgment of the circuit court is, therefore, affirmed. FIELD, J., did not sit on the hearing of this case, and took no part in its decision.

108.US.92

was not lawful prize, and that the capture was without probable cause, these questions were no longer opefi. Supervisors v. Hennicott, 94 U. S. 498, followed. 2. The capture being made by the army, the vessel was not subject to condemnation as prize. 3. The executive could, without legislative authority, submit to the determination of a judicial tribunal the question of the amount of damages for the capture. 4. A captor who does not institute judicial proceedings for the condemnation of his prize without unnecessary delay is subject to demurrage in case a decree of restitution is made after proceedings are begun. 5. The United States are liable to demurrage in the present case from the date when the surrender for adjudication might have been made until the date of the surrender, at the rate fixed by the charter party.

'I avail myself of this occasion to offer to you assurances of my very high consideration. J. C. BANCROFT DAVIS, 'Acting Secretary of State.' *On the second of June following, the cause was referred to one of the commissioners of the court to ascertain the amount of damages the claimant had sustained by the seizure and detention of the vessel. The commissioner made his report on the twentieth of May, 1871, fixing the damages for the detention at the rate of $200 a day from November 29, 1861, to June 20, 1863, the date of the decree for restoration, with interest at 6 per cent. per annum, amounting to $167,370.66 3/2, and allowing for the expenses and services of an agent, remaining with and attending to the vessel, $5,680; for counsel fee in defending the proceedings, $5,000; and for the value of the vessel at the date she should have been restored, with interest added, $36,833.33 1/3; or a total of $214,884. Exceptions were taken to this report by the United States, but they were overruled, and a decree rendered for the full amount allowed by the master, with interest added. From that decree an appeal was taken to this court, where, at the October term, 1872, it was decided 'that the vessel was not lawful prize of war or subject of capture, and the corporation which owned her is doubtless entitled to fair indemnity for the losses sustained by the seizure and employment of the vessel; but it may be well doubted whether it is not more properly a subject of diplomatic adjustment than determination by the courts.' It was also said in the opinion: 'The decree of the district court included the sum of $5,000 for counsel fees. We think that the amount was greatly excessive, and the allowance for counsel fees wholly unwarranted.' For the errors thus indicated the decree was reversed. The Nuestra Senora de Regla, 17 Wall. 31. The case was then remanded for further proceedings in accordance with the opinion. On the twenty-second of July, 1873, after the mandate was filed, a second reference was made to the commissioner 'to assess the damages of the claimant of the vessel sustained by him in consequence of the seizure and detention of the vessel, and that on such reference all the proofs already taken in the cause or before the referee be used, together with such other proofs as may be put in by either party.' Under this reference the commissioner again reported that the United States continued to use the vessel after she was taken possession of by the navy department pursuant to the order of August 22, 1862, until the twentieth of June, 1863, the date of the decree for her restoration, and that she had never been restored to the owners, or her value paid. He therefore allowed—— For detention from November 29, 1861, to June 20, Interest at 6 per cent. to date of report,. 81,698 00 For value of vessel, ascertained to be. 30,000 00 For expenses of agent, 568 days at $10,. 5,680 00 ------------ $252,527 00 To this report exceptions were filed on behalf of the United States, but they were overruled by the court, and a decree entered March 8, 1879, for the amount found due, with interest from the date of the report, or in all $308,932.38. From that decree this appeal was taken. Asst. Atty. Gen. Maury, for the United States. Wm. Allen Butler and W. R. Beebe, for appellee. [Argument of Counsel from pages 99-100 intentionally omitted] WAITE, C. J. The facts to be considered on this appeal are as follows: That the steamer was not lawful prize or the subject of capture was expressly decided on the former appeal. It was also impliedly settled that the capture was without probable cause, for it was said the owner was undoubtedly entitled to a fair indemnity for the losses sustained, the only difficulty being as to the amount. These questions are, therefore, no longer open. Clark v. Keith, decided at the present term, [1 SUP. CT. REP. 568;] Sup'rs v. Kennicott, 94 U.S. 499. The first of the remaining questions to be considered is whether & decree can be entered against the United States for damages. As the capture was made by the army, or by the army and navy operating together, it inured exclusively to the benefit of the United States. There is no distribution of prize money in such a case. U. S. v. Steam Vessels of War, decided at this term, [1 SUP. CT. REP. 539;] The Siren, 13 Wall. 394. The United States were, therefore, in legal effect the captors, and they came voluntarily into court to secure for themselves the benefit of what had been done. They deliberately adopted the acts of the military and naval officers as their own, and came, as captors, to condemn their prize. Offers to purchase the vessel were made and declined before she was seized, and soon after the seizure she was chartered and put into actual use without any attempt at securing an adjudication. It is evident, also, that the capture must have been the subject of diplomatic correspondence between the government of Spain and the United States before the vessel was brought in for adjudication, because on the sixth of May, 1862, after the vessel got to New York, and before the libel was filed, Mr. Seward, the then secretary of state, wrote the district attorney for the southern district of New York as follows: 'SIR: Noticing the arrival at New York of the Spanish steamer Nuestra Senora de la Regla, which was seized at Port Royal by General Sherman for an alleged illegal breach of neutrality, I now transmit the papers found on board of her, and an abstract of them which I caused to be prepared and which you may find useful.' Although the libel was filed on the ninth of June, 1863, and the elaim was promptly put in, the adjudication was not had until June of the following year, when all further proceedings were stayed with the consent of both parties to await an adjustment of damages by the two governments. Nothing further was done until nearly seven years afterwards, when the secretary of state informed the Spanish government of the wish of the United States that the parties interested should apply to the court, which still retained jurisdiction, for such relief as justice demanded, and in the mode that tribunal should deem most proper and convenient. Thereupon, on motion of the claimant, and with the consent of the United States district attorney, the reference was ordered to ascertain the damages. Under these circumstances we cannot but think the United States have voluntarily submitted themselves to the court at the instance of the Spanish government, and with the consent of the claimant, for the purpose of having the questions of damages growing out of the capture judicially settled according to the rules applicable to private persons in like cases. It is objected, however, that the executive department of the government had no power, in the absence of express legislative authority, to make such a submission. It was the duty of the United States, under the law of nations, to bring all captured vessels into a prize court for adjudication. If that had not been done in this instance, the Spanish government would have had just cause of complaint, and could have demanded reparation for the wrongs that had been done one of its subjects. The executive department had the right to bring the suit. In that suit it had been determined that the capture was unlawful. Necessarily, therefore, the question of damages to the owner of the captured vessel arose. Since, without the consent of the United States, no judgment for damages could be rendered against them in the pending suit that could be enforced by execution, the Spanish government had the right to assume the prosecution of the claim, and it did. Necessarily the negotiations on the part of the United States under this claim were conducted by the executive. After long delay no agreement was reached, and as a last resort for ending the controversy it was determined to refer the whole matter to the court for judicial inquiry and determination. We see no reason why this might not be done in such a case. It is true, any judgment that may be rendered cannot be judicially enforced, but the questions to be settled are judicial in their character, and are incidents to the suit which the United States were required to bring to enforce their rights as captors. It is too late now to insist that the case is not one of prize, because in the libel it is expressly alleged that the vessel was captured as lawful prize, and condemnation was asked on that account. When, therefore, the United States, through the executive of the nation, waived their right to exemption from suit, and asked the prize court to complete the adjudication of a cause which was rightfully begun in that jurisdiction, we think the government is bound by the submission, and that it is the duty of the court to proceed to the final determination of all the questions legitimately involved. The next inquiry is as to the amount of damages. The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. 2 Wheat. App. 11; The Appollon, 9 Wheat. 377; The Lively, 1 Gall. 327; The Corier Maritimo, 1 Rob. 287. Upon the facts in this case there can be no doubt of the propriety of such an allowance for the extraordinary detention of the vessel before she was delivered up for adjudication, especially since she was detained for the express purpose of use by the United States. And as to the amount of the allowance there is no opportunity for discussion. The United States were willing and actually contracted to pay $200 a day for her use if she was not in fact lawful prize, and that is shown to have been a reasonable price for her charter at the time. She was seized on the twenty-ninth of November, and it is fair to assume that if due diligence had been used she might have been surrendered for adjudication by the sixteenth of December, when her charter began to run. She was not actually surrendered until the ninth of June—a delay of 175 days beyond what was necessary. It is not disputed that her value at that time was $30,000. She cost when built $50,000, and was new when captured. As she has never been restored under the order to that effect, there can be no doubt of the liability of the United States for her value, when at their request she was delivered into their possession by the court. It is not a matter of any importance that the certificate of deposit in the treasury of the amount of her appraised value was not filed. By taking the vessel on the terms imposed by the court, the United States impliedly agreed to restore her in as good condition as she was when taken, or pay her value in money. By the surrender of the vessel for adjudication, the United States relieved themselves from any further liability for damages in the way of demurrage, and became bound for the vessel instead. The allowance for demurrage includes reasonable compensation for the pay and expenses of an agent to look after the interests of the owners up to the time of the delivery of the vessel to the navy department by the court. After that no agent was necessary. From that time the case stood as though a sale had been made and the proceeds paid into the registry of the court. Our conclusion is that damages should be allowed as follows: For unnecessary and unusual delay in proceeding to adjudication, 175 days, at $200,... $35,000 For value of vessel,................ 30,000 ----------- To which add interest, at the rate of 6 per cent. per annum, from the time of the order of restitution, June 20, 1863, until the decree. The decree of the district court is reversed, and the cause remanded with instructions to enter another decree in accordance with this opinion.

106.US.620

Certificates of indebtedness issued by a person or a corporation are not taxable as "circulation," under sect. 8408, IRev. Stat., unless they were calculated or intended to circulate or to be used as money.

We are not satisfied that the certificates of indebtedness, on account of which the United States have assessed the taxes petitioned for, were calculated or intended to circulate or to be used as money. They were not, therefore, taxable as 'circulation' under the third clause of section 3408 of the Revised Statutes. The decree dismissing the petition of intervention is affirmed.

106.US.536

An officer charged with the disbursement of public moneys is not liable for interest thereon, if he has not converted them to his own use, nor neglected to disburse them pursuant to law, nor, when thereunto required, failed to account for or transfer them.

The United States recovered a judgment in the circuit court for the district of Massachusetts against Denvir, on his bond, given as surety for the faithful performance by David F. Power of all his duties as acting assistant paymaster in the navy of the United States. No service on Power or appearance for him and no defense by Denvir being made, judgment was rendered for the sum of money found to be in the hands of the paymaster, with interest from the service of the original writ in this suit, in March, 1875. The United States asserted a right to interest from the date of the last receipt of money by the paymaster, namely, August, 1865, and excepted because the court overruled this proposition. No evidence was given of any demand on the paymaster, or any refusal to pay or transfer the fund in his hands, or to comply with any lawful order on the subject. Though the condition of the bond is not exactly the same as in the case of U.S. v. Curtis, 100 U. S. 119, the principle of that case must control this. That principle is that where an officer of the government has money committed to his charge, with the duty of disbursing or paying it out as occasion may arise, he cannot be charged with interest on such money until it is shown that he has failed to pay when such occasion required him to do so, or has failed to account when required by the government, or to pay over or transfer the money on some lawful order. The mere proof that the money was received by him raises no obligation to pay interest, in the absence of some evidence of conversion or some refusal to respond to a lawful requirement. The obvious reason for this is that the government places the money in the hands of this class of officers and all others who are disbursing officers that it may remain there until needed for use in the line of that officer's duty, and until that duty requires such payment, or a return of the money to the proper department of the government, he is in no default, and cannot be required to pay interest. The judgment of the circuit court is affirmed.

107.US.617

1. By schedule D of the act of July 30, 1846, c. 74, a duty of twenty-five per cent ad valorem was imposed on "cotton laces, cotton insertings," and "manufactures composed wholly of cotton, not otherwise provided for." By sect. 1 of the act of March 3, 1857, c. 98, the duties on the articles enumerated in schedules C and D of the act of 1846 were fixed at twenty-four and nineteen per cent, respectively, "with such exceptions as are hereinafter made." By sect. 2 of the act of 1857, "all manufactures composed wholly of cotton, which are bleached, printed, painted, or dyed, and delaines," were transferred to schedule C. Held, that laces and insertings composed wholly of cotton, and bleached or dyed, were dutiable at twenty-four per cent, under the act of 1857. 2. The designations qualified by the word "cotton," in the act of 1846, are designations of articles by special description, as contradistinguished from designations by a commercial name or a name of trade, and are designations of quality and material. 3. Under the act of March 2, 1799, c. 23, the collector of customs is not entitled to a fee for putting on an invoice a stamp or certificate as to the presentation of the invoice, or for an oath to an entry or for a jurat to such oath, or for his order to the storekeeper to deliver examined packages.

This is a suit commenced in 1863, by the members of the firm of S. Cochran & Co., against the collector of the port of New York. As tried in the circuit court it involved the recovery back of duties paid on cotton laces and cotton insertings imported from abroad in 1857, 1858, 1859, 1860, and 1861, and of fees paid at the custom-house. The laces and insertings were composed wholly of cotton, and were 'either bleached or dyed.' The collector charged a duty on them of 24 per cent. ad valorem, the importers claiming that the proper duty was 19 per cent. ad valorem. At the trial the court instructed the jury that the duty was correctly assessed and that the plaintiffs could not recover. The question as to the fees involved four items. On the presentation of an invoice and an entry, the collector, before he would receive them as collector, impressed on each invoice, for the convenience and security of himself and the government, a stamp or certificate, certifying in the name of a deputy collector that the invoice was presented 'on entry' on such a day. On each entry, one of the plaintiffs' firm was required to make and subscribe before the collector or his deputy the owner's or consignee's oath. For each of such stamps the collector exacted 20 cents, and for each of such oaths 20 cents. He also exacted a fee of 20 cents for each permit to land the merchandise embraced in each entry on which the duties had been paid or secured, such permit being signed by the collector and the naval officer. Said three fees of 20 cents were paid with the duties, and otherwise no permit for the landing and delivery of the goods could be obtained. The permit to land covered all the goods embraced in the entry, but at least one package of each invoice, and one package in every ten packages of each invoice, were, by order of the collector, designated on each invoice, and each entry, and also on the permit, to be sent, and were sent, to the public store for examination and appraisement; and, after they had been examined and appraised and reported on, an order was required by the plaintiffs' firm, signed by the collector alone, to the storekeeper, to deliver such examined packages to the plaintiffs' firm. For every such order, without which the examined packages could not be obtained, the collector exacted a fee of 20 cents. At the trial, the plaintiffs conceded that the fee for the permit was legal. The court directed a verdict for the plaintiffs for the amounts exacted for the other three fees, with interest, being $1,734.80, and, after a judgment for the plaintiffs therefor, with costs, the plaintiffs sued out a writ of error based on their failure to recover the alleged excess of duty exacted on the laces and insertings, and the defendant sued out a writ of error based on the recovery for the three alleged illegal fees. By Schedule D of the act of July 30, 1846, (9 St. at Large, 46,) a duty of 25 per cent. ad valorem was imposed on 'cotton laces, cotton insertings, cotton trimming laces, cotton laces and braids,' and 'manufactures composed wholly of cotton, not otherwise provided for.' By section 1 of the act of March 3, 1857, (11 St. at Large, 192,) it was enacted that after July 1, 1857, ad valorem duties should be imposed in lieu of those then imposed on imported goods, as follows: 'Upon the articles enumerated in Schedules A and B' of the tariff act of 1846, a duty of 30 per cent., 'and upon those enumerated in Schedule, C, D, E, F, G, and H of said act,' the duties of 24, 19, 15, 12, 8, and 4 per cent., respectively, 'with such exceptions as are hereinafter made.' The schedules above mentioned respectively imposed duties of 100, 40, 30, 25, 20, 15, 10, and 5 per cent. Thus far cotton laces and cotton insertings, being in Schedule D of the act of 1846 at 25 per cent., were reduced by the act of 1857, with the other articles in schedule D, to 19 per cent. But section 2 of the act of 1857 provided 'that all manufactures composed wholly of cotton, which are bleached, printed, painted, or died, and delaines, shall be transferred to Schedule C.' Under this provision it would seem very plain that the goods in the present case were subject to a duty of 24 per cent., and not of 19 per cent. If section 1 of the act of 1857 had merely reduced from 25 per cent. to 19 per cent. the duty on the articles specially mentioned in Schedule D of the act of 1846, without exception, the duty on the goods in question would have been reduced to 19 per cent. But the enactment was distinct that there should be excepted out of the reduction 'all manufactures composed wholly of cotton, which are bleached, printed, painted, or dyed, and delaines,' and that they should go into Schedule C, the 24 per cent. schedule. The contention for the plaintiff is that, as cotton laces and cotton insertings were made dutiable by those names in the act of 1846, they are not to be affected by the subsequent general provision as to manufactures composed wholly of cotton. Schedule C of the act of 1846 imposed a duty of 30 per cent. on 'cotton cords, gimps, and galloons,' and on 'manufactures of cotton, * * * if embroidered or tamboured in the loom, or otherwise, by machinery, or with the needle, or other process.' Schedule E imposed a duty of 20 per cent. on 'caps, gloves, leggins, mits, socks, stockings, wove shirts, and drawers, made on frames, composed wholly of cotton, worn by men, women, and children,' and on 'velvet, in the piece, composed wholly of cotton.' These provisions, and the one in Schedule D as to cotton laces, etc., relate to goods made of cotton entirely. Those goods are all of them goods to which, as 'manufactures composed wholly of cotton,' section 2 of the act of 1857 applies, transferring them, when bleached, printed, painted, or dyed, to the 24 per cent. schedule, Schedule C. The duty on them had been 30, 25, and 20 per cent. respectively. But for such transfer the new duty on those in Schedules D and E would have been 19 and 15. A new uniform rate of 24 was imposed, and while the 30 was reduced by 6 per cent., the 25 was reduced by only 1, and the 20 was increased by 4. This indicates an intention, in the act of 1857, to impose, in general, on manufactures composed wholly of cotton, when bleached, printed, painted, or dyed, a relatively higher duty as compared with other articles named in the act of 1846. The expression 'manufactures composed wholly of cotton' is not found in the act of 1846. It is in that act qualified by the words 'not otherwise provided for.' In the act of 1857 the expression is 'all manufactures composed wholly of cotton, which are bleached,' etc. If the words 'manufactures composed wholly of cotton,' unqualified, and the words 'cotton laces,' and 'cotton insertings,' had all of them been found in the act of 1846, as the general expression would not have embraced the specific terms in that act, for dutiable purposes, though including them in general language, it would be reasonable to say that the general expression in a later act would not include the specific terms, for dutiable purposes. But the fact that the general expression, as used in Schedule D of the act of 1846, is qualified by the words 'not otherwise provided for,' shows that there were manufactures composed wholly of cotton otherwise provided for; that is, in other items in that act. Thus, besides the embroidered and tamboured manufactures of cotton provided for in Schedule C of that act, there are cords, gimps, galloons, laces, insertings, trimming laces, laces and braids, each with the word 'cotton' prefixed, indicating manufactures composed wholly of cotton, and there are also the articles composed wholly of cotton named in Schedule E. The material 'cotton' is the thing of special mark, as the sole material in the manufacture. In this view it cannot properly be said that these manufactured articles, manufactures of cotton composed wholly of cotton, designated in the act of 1846 always by the epithet 'cotton' applied to them, are not embraced, for dutiable purposes, in the terms 'all manufactures composed wholly of cotton,' in section 2 of the act of 1857. The designations qualified by the word 'cotton,' in the act of 1846, are designations of articles by special description, as contradistinguished from designations by a commercial name or a name of trade. They are designations of quality and material. The articles referred to, named in Schedules C, D, and E of the act of 1846, are all of them manufactures wholly of cotton; but under that act they were not all subject to the same duty, and so that act designates them substantially as manufactures wholly of cotton which are gimps at 30 per cent., manufactures wholly of cotton which are laces or insertings at 25 per cent., manufactures wholly of cotton which are stockings, made on frames and worn by human beings, at 20 per cent., and so on. But for the exceptions provided for by section 1 of the act of 1857 the duties on those articles, if bleached, printed, painted, or dyed, would have been reduced to 24, 19, and 15 per cent., respectively, but section 2 of that act says, in substance, that manufactures wholly of cotton which are gimps, or laces, or insertings, or stockings, and so on, shall, all of them, be subject to 24 per cent. duty. This was the view applied by Mr. Justice NELSON, in Reimer v. Schell, 4 Blatchf. C. C. 328, in 1859, to colored cotton hosiery, under the provisions in question, and we think it a sound one. It was the view adopted by the circuit court in this case. There is no question of commercial designation. Hence, the cases cited and relied on by the importers are not cases in their favor. Homer v. The Collector, 1 Wall. 486, in 1863, was a case in which Mr. Justice NELSON delivered the opinion of this court. It was a case under these same statutes. Almonds were dutiable, by that name, at 40 per cent. in Schedule B of the act of 1846. Under the act of 1857 the duty on the articles in said Schedule B was reduced to and fixed at 30 per cent., and the collector exacted that duty on almonds. It was contended that as, by section 2 of the latter act, 'fruits, green, ripe, or dried,' were transferred to Schedule G, and so made subject to only 8 per cent. duty, almonds were so transferred, as being 'fruits, green, ripe, or dried.' An attempt was made, at the trial, to show that at the time the act of 1857 was passed, almonds were fruit, green, ripe, or dried, according to the commercial understanding of those terms in the markets of this country, and questions were certified to this court, on a division of opinion in the circuit court, as to the proper duty on almonds, and as to the admissibility of such evidence. It was contended, for the importer, that the term 'dried fruits,' in popular meaning, included almonds. The government claimed that the term 'almonds' was a specific name, and, therefore, commercial nomenclature had no application. This court held that inquiry as to whether, in a commercial sense, almonds were dried fruit, had nothing to do with the question, as a duty had been imposed on almonds, eo nomine, almost immemorially; and that, as almonds were charged specifically with a duty of 40 per cent. in the act of 1846, and were not named as almonds in the changes in the act of 1857, and full effect could be given to the term 'fruit, dried,' without including almonds in it, it followed that almonds were dutiable at 30 per cent. There is nothing in this decision that overrules that in Reimer v. Schell, or that aids the importers in the present case. The act of 1846, in substance, mentions manufactures wholly of cotton which are laces or insertings, bleached or dyed, and section 2 of the act of 1857 mentions them in naming manufactures composed wholly of cotton, bleached or dyed. Nor does the case of Reiche v. Smythe, 13 Wall. 162, as to birds, apply. That case was decided on the ground that the word 'animals,' in the act of 1861, did not include 'birds,' and so could not include them in the act of 1866. There is nothing in Smythe v. Fiske, 23 Wall. 374, or in Arthur v. Morrison, 96 U. S. 108, which applies to this case. The case of Movius v. Arthur, 95 U. S. 144, was decided on the same view as that of Homer v. The Collector. 'Patent leather' had been dutiable by that name in the acts of 1861 and 1862. The act of 1872 imposed a less duty on 'skins dressed and finished, of all kinds.' This court held that patent leather continued subject to the former duty, on the view that, although patent leather was a finished skin, something was done to it after it could be called a finished skin to make patent leather of it, and that it could not have been intended to include patent leather in the general designation of 'finished skins.' In Arthur v. Lahey, 96 U. S. 112, the subject of duty was laces, manufactures of silk, on which a duty of 60 per cent. was exacted, under the act of 1864, as 'silk laces.' It was contended that they were dutiable at 30 per cent. as 'thread laces,' under the act of 1861, as amended by the act of 1862. The question being submitted to the jury whether they were commercially known as 'thread laces,' although made of silk, it was found that they were, and the plaintiffs had a verdict. This court held that the question was one of commercial designation, and that the prior specific designation of 'thread laces' must prevail over the words 'silk laces,' it appearing that there were thread laces of cotton and thread laces of silk, and articles commercially known as silk laces, the designation of 'thread lace' depending on the mode of manufacture. The principle of that case and of kindred cases, such as Arthur v. Rheims, 96 U. S. 143, is that the specific designation of an article by a commercial name will prevail over a general term in a later act, and has no application to the present case, which is not, as to cotton laces and cotton insertings, one of designation by a commercial name. The bill of exceptions in the present case states that previously to about 1879 there was no cotton laces printed or dyed, and that from 1850 to 1861 there were many goods composed wholly of cotton, and bleached, printed, painted, colored, or dyed, such as calicoes, (prints,) lawns, handkerchiefs, velvets, and velveteens, and cotton piece goods generally. If, when section 2 of the act of 1857 was enacted, the words 'printed' and 'painted' were not applicable to laces, it does not follow that the provision is to be limited to such cotton articles as were then printed or painted as well as bleached or dyed. It includes any article which, as then known, satisfied any one of the conditions. We see no warrant for the view that the act of 1857 applies only to piece goods. It results from these views that the goods in question were subject to the duty imposed. As to the three disputed fees, we are of opinion that they were none of them allowed by the law in force. Section 2 of the act of March 2, 1799, (1 St. at Large, 706.) The stamp or certificate on the invoice was one for the convenience and security of the collector and the government, and was not an 'official certificate,' in the sense of the statute. It was not an offical document required by the merchant, nor was it given to him. It was a memorandum between officers in the custom-house, as a part of their system of checks and authentications. The fee for the oath to the entry, as a fee for its administration, was not named in the statute. As a fee for the jurat to the oath, although the oath was required by the statute, and its form was prescribed, and it was to be taken before the collector, the jurat was not an official document required by the merchant or given to him. The bill of exceptions states that the order to the storekeeper to deliver examined packages was an order required by the plaintiffs' firm from the collector. But we do not think it was an official certificate, or an official document required by the merchant, in the sense of the statute. The permit to land the goods having been issued and paid for, and the duties paid or secured, it was the duty of the officers of the customs to deliver the goods, when examined. The order to the storekeeper was a memorandum between officers. It was 'required' by the merchant, in one sense, because without it, according to the course of business, the storekeeper would not deliver the examined packages, but it was not an official document passing from the custom-house to the merchant. The judgment of the circuit court is affirmed.

108.US.466

1. The doctrine reaffirmed that the earlier printed and published description of a subject of a patent which is put in evidence to invalidate a patent must be in terms that would enable a person skilled in the art or science to which it appertains to make. construct and practise the invention as completely as he could do by the aid of information derived from a prior patent; and that unless it is sufficiently full to enable such person to comprehend it wfthout assistance from the patent, or to make it or repeat the process claimed, it is insufficient to invalidate the patent. 2. Applying the doctrine to this case, the appellant's patent held to be void.

A grain of wheat may be described generally as follows: It consists of a pellicle or outside covering known as bran, an inner envelop consisting of cells and their contents of gluten and phosphates, the most nutritious portion of the berry, and an interior white mass composed mainly of starch and albuminoid matter, extending to the heart of the berry. At one end of the berry, under an irregularly curved surface-layer of bran, technically called the shield, is the embryo, or germ. The germ is a yellow, waxy substance, and the bran is consistent and tough. It has always been the aim of good milling to separate as completely as possible the bran and germ from the other contents of the berry, because they not only gave color to the flour, but rendered it more liable to sour. The main purpose of the improvement described in appellant's letters patent was to accomplish this result by removing the bran and germ from the coarse middlings, leaving only those parts of the grain from which pure white flour could be produced. The improvement consisted in a process, and did not cover the several devices by which the process was carried on. The process was as follows: Coarse middlings, from which the fluffy matter had been eliminated by a well-known contrivance known as a purifier, were passed between one or more sets of rolls, which reduced the large middlings to a greater degree of fineness, but flattened out the tough and waxy germs and bran. After the middlings, with the intermixed germs and bran particles, had been passed between the rolls, they were carried to a bolting-cloth. This allowed the comminuted middlings to pass through its meshes, whence they were carried to the stones, 'to be reground as usual,' but the germs and bran particles having been flattened, and their surfaces enlarged, by the rolls, could not get through the bolting-cloth, and were carried to the end of the bolt, and then run off into suitable receptacles. It will be observed that all the separate parts of this process are old. The use of purifiers on middlings to take out the fluffy particles, the use of rolls to comminute middlings, the use of bolthing-cloths to separate the bran and germs from the flour, and the use of stones to regrind middlings, all long antedate the patent of the appellant. The only field left for invention, therefore, was either a new order in which the different parts of the process were to be applied, or some new method of rsing some one or more of the devices by which the process was accomplished, or both these combines, so as to produce some new product, or some old product in a cheaper or otherwise more advantageous method. It is claimed for the appellant that his invention consists 'in interjecting in the old modes, after the purifier, a pair of smooth rolls of equal diameter, and running at equal speed, and then rebolting the product, and regrinding the middlings' which pass through the bolting-cloth. We are to inquire whether the defense relied on in this case, that the invention claimed as his own by the appellant had been described in a printed publication before his invention thereof, had been made out. By section 24 of the act of 1870 it was provided that any person who had invented any new and useful art, machine, manufacture, or composition of matter not known or used by others in this country, 'and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof,' might obtain a patent therefor. In construing the words 'described in any printed publication in this or any foreign country,' as they were used in reference to the same subject in section 7 of the act of 1836, (5 St. 117,) this court, in the case of Seymour v. Osborne, 11 Wall. 516, said: 'Patented inventions cannot be superseded by the mere introduction of a foreign publication of the kind, unless the description and drawings contain and exhibit a substantial representation of the patented improvement in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, and practice the invention as they would be enabled to do if the information was derived from a prior patent.' So in Cohn v. U. S. Corset Co. 93 U. S. 366, Mr. Justice STRONG, speaking for the court, said: 'It must be admitted that unless the earlier printed and published description does exhibit the later patented invention in such a full and intelligible manner as to enable persons skilled in the art to which the invention is related to comprehend it without assistance from the patent, or to make it, or repeat the process claimed, it is insufficient to invalidate the patent.' Applying strictly the rule thus laid down, we are of opinion that the defense of prior publication has been made out. After a careful consideration of the evidence in the record, we are forced to the conclusion that the method of making flour set forth in the specification of appellant's patent was fully and clearly described in a printed publication before the invention thereof by the appellant, and that his patent therefor is consequently void. We refer to a German work put in evidence by the defendant, entitled Die Mahlfabrication, by Frederick Kick, published at Leipsic in 1871. We take the following extracts from a translation of this book. 'Part IV., Rough Grinding with Roll Mills:' 'In the successive process of grit or high milling, the grain is crushed in its first passage through between the stones; that is, broken into parts of different sizes—groats. 'In the disintegrating process, which follows next, flour, dust, middlings, partings, and breakings are obtained. With each of these substances, classified according to size, particles of the hull of the same size are mixed, or still adhere to the particles of the grist. By this method of crushing with stones a partial splitting up of the hull is unavoidable, and the flour obtained from such rough grinding is mixed with particles of bran, even from decorticated wheat, and is, therefore, discolored. 'If one were able wholly to prevent the disintegrating of the particles of the hull, the flour produced by rough grinding would be white. 'This, however, is never fully accomplished; but there is, on the one hand, a way to diminish the friability of the hull—by moistening; on the other hand, many sorts of wheat, under similar treatment, exhibit this difficulty to a less extent, and therefore produce white flour, viz., soft wheat; or, finally, machines are employed which, in the process of rough grinding, break up the hull to a less degree, as is the case with roll mills. 'The roll mills operate partly by crushing and partly by grinding. They produce breakings, which then pass to the stones for grinding into flour. The surface of the rolls are smoother than those of the stones, and the hull is, therefore, less torn. Of course the disintegrating by means of rolls is not appropriate for every kind of wheat. If soft, mild wheat is passed through the rolls, it leaves the rolls in a flat, compressed condition; whereas, with the same treatment, hard (Hungarian) wheat is reduced to fragments, and so regularly broken. 'The action of the rolls evidently depends upon their relative position, (their distance apart;) it also depends on the condition of their surfaces, (whether smooth or chaneled;) and then again on their relative motion, viz., whether both rolls have like or different velocities. 'If the rolls are so far apart that the wheat sustains only a moderate pressure, and if they are smooth, then only a breaking of the grain occurs in the direction of the crease. The berry is thereby divided into two longitudinal halves, of which many still cohere at the back, thus resembling an open book. 'In case the rolls are closer together, then, with soft wheat, a flattening takes place, and the middlings obtained therefrom are very clean or free from bran. Hard wheat is much more considerably reduced, and a proper breaking is effected. * * * Rolls with smooth surfaces operate more by compression; those with fluted surfaces more in a cracking or breaking manner. In order to give the rolls at the same time a triturating effect, they are made to revolve with different velocities. 'Two, three pairs of rolls may be arranged one above another. By the first pair 'coarse breakings' are produced; by the second, 'first breakings,' etc. Hence, the application of three pairs of rolls permits a gradual disintegration during a single passage of the grain through the roll mill. * * * There are (as we shall explain hereafter) certain varieties of middlings in which the but partially broken germs constitute thirty or forty per cent. of the entire mass, and which, being yellow granules, give to the entire mass of grit, with which they are intermixed, a yellowish appearance. 'Now, if this kind of middlings is passed through properly adjusted rolls, the tough germs are only flattened, while the other granules are broken and can be easily separated by sifting. Instead of a pair of rolls, a single roll operating against an adjustable segment of stone or iron may be used. By this latter method the substance ground is much more subjected to trituration. The particles already reduced continue to rub against each other and against the working parts of the machine until they finally pass out, in consequence whereof the advantages above mentioned of the roll mills are greatly neutralized.' We have, in this publication, an accurate description of the process covered by appellant's patent. We have the rolls used for the identical purpose therein set forth; namely, to reduce the middlings and to flatten out the germs, so that they can be separated by bolting or sifting, thus preparing the middlings to be again ground and reduced to middlings flour. Appellant insists, however, that the process described by Kick is not applied to purified middlings, and therefore differs from his. But it appears, from the well-known state of the art, that ever since purifiers were invented it has been the practice to purify middlings before reducing them, so that whenever the grinding of middlings is mentioned, graded and purified middlings are understood. The process of purifying, in case of gradual reduction, is as elementary as bolting, and follows every reduction of the material. When, therefore, Kick speaks of passing middlings through the rolls for another reduction, he must be understood to mean purified middlings. But the evidence in the record clearly shows that the action of the rolls, and their effect upon the product of the mill, would be the same whether purified or unpurified middlings, or even wheat, were used. Appellant further insists that his process differs from that described by Kick, because the rolls mentioned in the latter run with unequal speed. This contention is founded on a misapprehension. The extract from Kick's work expressly says that 'the action of the rolls evidently depends * * * on their relative motion, viz., whether both rolls have like or different velocities.' Rolls, therefore, with the same or different velocities could be used in the process described by Kick. His method included both. We are also of opinion that the process which appellant claims as his invention was also clearly described as early as the year 1847 in a publication called Anglo-American and Swiss Science Milling, by Christian Wilhelm Fritzsch, published at Leipsic by Gustav Brauns. This description of the process of manufacturing flour is illustrated by drawings, which make it perfectly clear that the different parts of the process of the appellant were anticipated and publicly printed more than 25 years before the appellant, according to his own story, conceived the improvement described in his patent. 'The advantages to be derived from the roll mill consist chiefly in this: that in operating them a considerable saving of power is achieved as compared with stone mills. Furthermore, the flour produced is of excellent quality, both in whiteness and fineness. 'Inasmuch as the wheat is ground in a dry state, the flour produced is especially adapted, with respect to durability, for transportation and storing. 'The principle on which all said improvements turn, centers wholly and exclusively in a desire to effect the grinding of wheat so that not only the largest possible quantity of good middlings flour is obtained, but also that this may be separated from the hull or bran in its original purity; or, to express it in plainer words, to obtain the mealy interior substance without admixture of any part of the hull.' Then follows a description of the mill by which the reduction of the wheat to coarse middlings is effected: 'The rough-ground product discharged from the mill (in which, besides middlings, flour has been produced) is thereupon most conveniently carried into the upper stories of the mill building by means of an elevator, and is then first transferred to a flour cylinder for the purpose of separating the flour. The remainder then goes upon a grit cylinder, where the material is assorted and separated from the hull in four different grades of middlings. The middlings thus obtained are thereupon likewise eleaned in the manner already described, and prepared for flouring. 'The grinding of midelings takes place by a manipulation varying but little from the process of rough grinding, by means of a flouring mill, which, together with the crushing mill above mentioned, constitutes a set or run. We see this flouring mill upon our plate, (fig. 8.) Its construction is in the main like that of the other, only the difference that the upper pairs of rolls are not fluted, like those in figure 7, but have smooth turned surfaces, and consequently no under layers, (wedges.) This under layer (wedge) is only used with the under pair of rolls, which are finely fluted. 'The middlings ready for grinding are here also put into the hopper, as shown, and carried to the first, second, and third pairs of rolls, in the manner described. The upper two pairs of rolls crush and triturate the middlings to the utmost degree; therefore, it remains for the last lower pair of rolls to shake up the flour. 'This product, thus finely ground, is now transferred to the cylinder bolt for separating the flour. The bran-like surplus is carried with the bolts to a stone mill, to be completely ground out. 'The grinding of middlings in the manner above described has many advantages in its favor, especially in this: that the hull particles still contained in the middlings are, by this process, not any longer decomposed or torn up, whereby the possibility of transfer of them into the flour is avoided.' In this description we have the purifying of the middlings by a purifier, which is shown in the cut, then the passing of them between two pairs of smooth revolving rolls of equal diameter, which are in all respects like the rolls described in the specification of appellant's patent, and which necessarily perform the same function. Then the disintegration, or shaking up, as it is called, of the ribbons or sheets of the material which come from the second pair of rolls, by passing them through the third pair, which are fluted, but are not allowed to touch each other, and then their transfer to the bolting cylinder, by which the flour is separated from the bran and germs. The only difference between this process and that described in appellant's patent is that the last two sets of rolls but one, mentioned in the process described by Fritzsch, completely reduce the middlings to flour, while in the process under appellant's patent the middlings, after passing between the rolls, being separated from the germs and bran, are again ground between stones; but the great fature of appellant's process, the flattening of the germs and pellicle, by passing the middlings between rolls, is found in the method described by Fritzsch. The advantages from the process described by Fritzsch are identical with those claimed for the process described in appellant's patent: First, a saving of power; second, the hull of the wheat (and necessarily the germ) is not disintegrated and torn up in passing between the rolls as it would be between the ordinary millstones, and can, therefore, be eliminated by the bolt; and, third, the yield of high-grade flour is increased, and the flour produced is of excellent quality, both in whiteness and fineness, and fitness for transportation and storing. The printed publications relied on to defeat the appellant's patent describe the process covered thereby so fully and clearly as to enable persons skilled in the art to which the invention relates to carry on the process. In fact, the description of the process in the printed publications is, to say the least, quite as precise, clear, and intelligible as in the specification and claim of the patent. The earliest date at which the appellant claims to have invented his improvement is stated by him as in 1872 or 1873. These publications, therefore, which antedate his invention,—one by at least one year, and the other by 25 years,—are fatal to the validity of the patent. The decree of the circuit court, which dismissed the bill, must therefore be affirmed; and it is so ordered. This case was decided at the October term, 1882, but owing to the inability of the clerk to furnish a corrected copy, its publication was delayed until this number.

106.US.519

The creditor of a corporation organized under the general laws of Oregon cannot, to recover his debt against it, enforce, by an action at law, the liability of a stockholder upon an unpaid subscription to its capital stock.

The only question we deem it necessary to consider in this case is whether a creditor of a corporation, formed and organized under the general laws of Oregon 'in relation to the formation of private corporations,' can maintain an action at law against a stockholder to recover, out of an unpaid balance of subscription to the capital stock, the debt due to him from the corporation. The constitution of Oregon, art. 11, § 3, provides that 'the stockholders of all corporations and joint-stock companies shall be liable for the indebtedness of said corporation to the amount of their stock subscribed and unpaid, and no more.' Section 14 of the statute 'in relation to the formation of private corporations' is as follows: 'Sec. 14. All sales of stock, whether voluntary or otherwise, transfer to the purchaser all rights of the original holder or person from whom the same is purchased, and subject such purchaser to the payment of any unpaid balance due or to become due on such stock. But if the sale be voluntary, the seller is still liable to existing creditors for the amount of such balance, unless the same be duly paid by such purchaser.' Since this case was decided below, the supreme court of Oregon has passed on the same question, and in Bush v. Cartwright, 7 Or. 329, determined that the individual liability of stockholders for the indebtedness of the corporation is limited to the amount of their stock subscribed and unpaid, and that the remedy of the creditor to enforce this liability is in equity, where the rights of the corporation, the stockholder, and all the creditors can be adjusted in one suit. Of the correctness of this decision we have no doubt. The liability of the stockholder is upon his subscription; that is to say, upon his obligation to contribute to the capital stock, which is a trust fund for the benefit of those to whom the corporation, as a corporation, becomes liable. Sawyer v. Hoag, 17 Wall. 620. The constitution of Oregon created no new right in this particular; it simply provided for the preservation of an old one. The liability under this provision is not to the creditors, but for the indebtedness. That is no more than the liability created by the subscription. The subscription is part of the assets of the corporation, at least so far as creditors are concerned. The liability of the stockholder to the creditor is through the corporation, not direct. There is no privity of contract between them, and the creditor has not been given, either by the constitution or the statute, any new remedy for the enforcement of his rights. The stockholder is liable to the extent that the subscription represented by his stock requires him to contribute to the corporate funds, and when sued for the money he owes, it must be in a way to put what he pays, directly or indirectly, into the treasury of the corporation for distribution according to law. No one creditor can assume that he alone is entitled to what any stockholder owes, and sue at law so as to appropriate it exclusively to himself. The judgment of the circuit court is affirmed.

108.US.361

Several insurance companies having policies on the same property agreed together to defend against claims for insurance, by a written instrument of which the following is the material part: the said companies will unite in resisting the claim made upon said policies, and on each thereof, and in the defence of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies, and will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings pro rata; that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement. The management and conduct of said resistance to said claims and defence of said suits and proceedings shall be and is fully entrusted to and devolved upon a committee to be composed of W. H. Brazier and James R. Lott, of the city of New York, Charles W. Sproat, of the city of Boston, L. S. Jordan, of the city of Boston, which committee shall have full power and authority to employ counsel and attorneys to appear for said companies and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto, and to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defence of said suits as said committee shall deem necessary and expedient; such assessment upon and payment by each of said companies to be pro 'rata, as above mentioned. The committee named in the agreement communicated it to the defendaftt in error, and employed him as counsel in resisting the suits. On a suit for professional service brought by him against the companies jointly : Held, That any contract there may have been between him and the companies was several not joint.

This action was brought by the defendant in error to recover compensation for professional services as an attorney and counselor at law, rendered, as alleged, at the instance and request of the defendants in error, and each of them, as well as of sundry other corporations not inhabitants of the southern district of New York or of the state of New York, nor found therein, and therefore not joined, as defendants below, in and about the defense of certain suits brought against several of them in Massachusetts, but in which all had a common interest, and for which it is alleged these companies, including the plaintiffs in error, jointly and severally promised to pay what said services were actually worth. The cause was tried by a jury, and resulted in a verdict and judgment for the plaintiff below, to reverse which, for errors of law alleged to have occurred in the rulings of the court during the trial, and presented in a bill of exceptions, this writ of error is prosecuted. The plaintiff below put in evidence an agreement in writing, signed by 15 insurance companies, including the defendants, a copy of which is as follows: 'In re Taylor, Randall & Company versus The St. Paul Fire & Marine Insurance Company et als. 'The undersigned insurance companies, having policies outstanding issued to Taylor, Randall & Company, upon property at Central wharf, Boston, upon which claims have been made against said companies, do, in consideration of one dollar, by each paid to the other, and divers other good and valuable considerations, mutually covenant and agree to and with each other as follows; that is to say: the said companies will unite in resisting the claim made upon said policies, and on each thereof, and in the defense of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies, and will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings pro rata; that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement. The management and conduct of said resistance to said claims and defense of said suits and proceedings shall be and is fully intrusted to and devolved upon a committee to be composed of W. H. Brazier and James R. Lott, of the city of New York, Charles W. Sproat, of the city of Boston, L. S. Jordan, of the city of Boston, which committee shall have full power and authority to employ counsel and attorneys to appear for said companies and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto, and to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defense of said suits as said committee shall deem necessary and expedient, such assessment upon and payment by each of said companies to be pro rata, as above mentioned. 'Each and every of said companies shall fully and faithfully adhere to this agreement, and shall refrain from any act or proceeding in reference to such claims or suit, or the defense thereof, that can or may in anywise defeat, obstruct, or interfere with the acts or proceedings of said committee relative thereto, and shall at all times furnish to said committee any and all papers information, and assistance in and about such management and conduct of such resistance and defense as may be in the possession or power of said companies respectively, and as may be desired by said committee. 'In witness whereof the said insurance companies have subscribed this agreement, this twenty-fourth day of April, eighteen hundred and seventy-four.' Prior to the execution of this agreement, suits had been commenced against some of the companies, other than the plaintiffs in error, in Boston, in one of which the agreement itself is entitled; and the defendant in error had been employed to defend them. After the agreement had been signed, the committee named in it employed the defendant in error on behalf of all the companies parties to it. He testified that the agreement was shown to him and that he accepted the invitation to become the attorney of the companies. The employment was general, no special terms being fixed, and it is not questioned that it was with full knowledge of the agreement between the companies, and according to the authority conferred by it upon the committee. The plaintiff below having proved the fact and value of the services rendered, rested his case, at the conclusion of which and afterwards again, after all the evidence had been put in, the defendants below requested the court to instruct the jury to find a verdict for the defendants, on the ground 'that the agreement was not one under which any joint liability could be created; that the provisions of the agreement were specific,—the parties to the agreement were only to pay severally and pro rata any amount that should become due under the agreement.' This instruction the court refused to give, and that refusal is now assigned for error. The committee appointed by the agreement between the insurance companies were special agents only for the purposes and within the limits declared in it. They had no authority to bind their principals beyond its import, and the limits of that authority were made known to the defendant in error when he accepted employment from them. Whatever authority to bind the companies in making that employment had been conferred upon them by the agreement, they in fact exerted. So that the question to be determined is, whether that agreement conferred upon the committee authority to bind the companies jointly, or jointly and severally, to pay the expenses of the litigation; or whether they became liable, severally only, each for its proper proportion. The contract, it will be observed, is between the companies. No other person is a party. The promises are between them severally. Each binds itself to each of the others. There is no joint undertaking or promise, on the part of all, to any one else. They 'mutually covenant and agree to and with each other.' They do agree, indeed, that they 'will unite in resisting the claim made upon said policies, and on each thereof, and in the defense of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies;' but, as to the obligation of payment on that account, its nature and extent, the agreement is that they 'will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings pro rata; that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement.' These expressions leave no doubt as to the intention of the parties in regard to the limit of their several liabilities as between themselves. The management and conduct of this common defense were intrusted to and devolved upon a committee of named persons; and the powers and rights of that committee are expressly defined. They are given full power and authority to employ counsel and attorneys to appear for said companies, and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto. They are thus constituted the agents, for the purposes named, of the parties to the contract, and whatever they do within the terms of that agency, which, of course, is not general, but special, binds the parties according to their agreement. The committee is not a party to the agreement, but derives its powers from it and has rights under it, chiefly the right of reimbursement for expenses and indemnity for obligations legitimately incurred. This right would be implied, if it were not expressed; but if the mode and measure of it are expressly declared, no implication can enlarge its limits. It is in fact expressly defined. The committee have, by the further provisions of the agreement, also full power and authority 'to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defense of said suits, as said committee shall deem necessary and expedient; such assessment upon and payment by each of said companies to be pro rata, as above mentioned.' It is very clear, we think, from this language, that for any advances made by the committee for the expenses of the defense, or for any indemnity against any personal liability they may have incurred in conducting it, they could have no personal recourse upon the companies except by way of assessment upon them severally, each for his own proportion, according to the ratio fixed by the agreement. Such proportion could be enforced by action against each delinquent company. There is no ground on which the companies could be made jointly responsible, so that any one or more could be required to make good the default of any of the rest. The fund for the payment of all the obligations contemplated by the agreement is limited, in express terms, to be raised in the mode pointed out in it by a pro rata assessment upon each for its individual share. Such being the relation between the several companies and the committee, those employed by the latter for the purposes of the agreement can have no greater rights than such as grow out of it. The agency being special, those who claim under it are bound by its limitations; and in the present case the defendant in error, it is admitted, had actual knowledge of them. So that, though the employment by the committee established a privity between him and the parties to the contract, giving him a right to treat the companies directly as his principals and employers, nevertheless, it must be taken to be only to the extent of the authority of the committee under the agreement, and subject to the limitations imposed by it upon the liability of the companies. He must be considered as relying, if he did not stipulate for the individual liability of the members of the committee, upon their power to raise the fund for the payment of his compensation by the assessment under the agreement; which, being made, he would have a right to enforce; or which, if denied to him wrongfully, would entitle him to his action, as if it had been made, or against the committee for not making it. But there is no ground on which he can claim that the employment of the committee imports a joint promise of compensation from the companies, in the face of the express restrictions upon the power of the committee to bind them otherwise than severally, each in proportion to its interest. The defendant in error is and can be in no better position by reason of the employment by the committee under the agreement between the companies, than the committee would have been if they had made the advances required, or than he would have been if he had been a direct party to that agreement, employed by the companies according to its terms. There is not only nothing in the agreement from which it could be inferred that the companies were to be sureties for each other, but that inference is expressly negatived by the declaration, according to which each is to be liable for its own separate and proportionate part. Similar reasoning, leading to like conclusions upon analogous facts, is to be found in many reported cases. We select, as illustrations, the following: Peckham v. North Parish in Haverhill, 16 Pick. 274; Ludlow v. McCrea, 1 Wend. 228; Ernst v. Bartle, 1 Johns. Cas. 319; Howe v. Handley, 25 Me. 116; Gibson v. Lupton, 9 Bing. 297; Fell v. Goslin, 21 Law. J. Rep. (N. S.) Exch. 14. In our opinion, the court below should have instructed the jury, as requested by the plaintiffs in error, to render a verdict for the defendants below, on the ground that no joint liability had been proven; and its declining to do so was error, for which the judgment is reversed, with directions to grant a new trial. And it is so ordered.

108.US.164

In a suit involving title to real estate the court will not dismiss an appeal for want of jurisdiction solely because, where there are conflicting affidavits respecting the value of the property, it may possibly reach the conclusion that the estimates acted on below were too high.

This motion is denied. Many of the affidavits sent up with the transcript state distinctly that the value of the property, which is the matter in dispute, exceeds $5,000. When an appeal has been allowed, after a contest as to the value of the matter in dispute, and there is evidence in the record which sustains our jurisdiction, the appeal will not be dismissed simply because, upon an examination of all the affidavits, we may be of the opinion that possibly the estimates acted upon below were too high. There is no such decided preponderance of the evidence in this case against jurisdiction as to make it our duty to dismiss the appeal which has been allowed.

109.US.216

1. A writ issuing from a court of competent jurisdiction, with power to compel ifs enforcement, and in a case where the cause of action and the parties to it are before the court and within its jurisdiction, is not void by reason of mistakes in the preliminary acts which precede its issue. 2. If not avoided by proper proceedings, it is in all other courts a sufficient protection to the officer executing it. 3. The marshal for the Eastern District of Michigan seized the goods of the defendants in error, under a writ of attachment issued from the circuit court of that district, on a defective affidavit: Hdd, That in proceedings in the State courts of Michigan against the marshal, the process is sufficient to protect him if the property seized under it was liable to be attached in that suit.

This is a writ of error to the supreme court of the state of Michigan. The plaintiff in error was marshal of the United States for the eastern district of that state, and under a writ of attachment from the circuit court levied on a stock of goods which was the subject of controversy. The defendants in error, who were not the parties named in the writ of attachment, sued Matthews, the marshal, in trespass, on the ground that they were the owners of the goods, and that the goods were not liable to the attachment under which the marshal acted. To this action the defendant pleaded the general issue, with notice that he should rely on the writ of attachment, and should prove that the goods were subject to be seized under it. When the defendant, who was admitted to be the marshal, as he had alleged, offered in evidence the writ of attachment, the court refused to receive it, on the ground that it did not appear by the affidavit on which it was issued that the debt claimed by the plaintiff in the writ was due. As the plaintiffs in the present action were in possession of the goods when they were seized under the writ, this ruling of the court was decisive of the case, for, however fraudulent might have been that possession, the defendant here, in the absence of any valid writ, was a mere trespasser, and could have no right to contest the lawfulness of that possession. The whole case turned, therefore, on the trial in the local state court, as it did on the writ of error in the supreme court, which affirmed the judgment of the lower court, on the question of the validity of the writ of attachment in the hands of the marshal, and its sufficiency to protect him if the property seized under it was liable to be attached in that suit. Don M. Dickinson and Julien G. Dickinson, for plaintiff in error. O. M. Barnes, for defendants in error. It is to be observed that this does not present a case where the validity of the writ is assailed by any proceeding in the court which issued it, either by a motion to set it aside as improvidently issued, or to discharge the levy and return the property, or by appeal to a higher court of the same jurisdiction to correct the error of issuing it on in insufficient affidavit, but it is a proceeding in a court of another jurisdiction to subject an officer of the United States to damages as a trespasser for executing a writ of the court to which he owes obedience. The supreme court of Michigan, whose judgment we are reviewing, says of this writ, in answer to the argument that, being regular on its face, it should protect the officer: 'No doubt the writ in this case must be regarded as fair on its face. Under the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it; and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer of whom the writ is issued is supposed to know nothing of it. Comp. Laws, § 643. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provisions shows that the writ contains all the recitals that the statute requires.' 5 N. W. Rep. 671. Here, then, we have a writ which is fair on its face, issued from a court which had jurisdiction both of the parties and of the subject-matter of the suit in which it was issued, and which was issued in the regular course of judicial proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate. We do not think this is law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States, and of other courts of general jurisdiction. It had been supposed by many sound lawyers, after the case of Freeman v. Howe, 24 How. 450, that no action could be sustained against a marshal of the United States in any case in a state court where he acted under a writ of the former court; but in Buck v. Colbath, 3 Wall. 334, where this class of cases was fully considered, it was held that though the writ be a valid writ, if the officer attempt to seize property under it which does not belong to the debtor against whom the writ issued, the officer is liable for the wrongful seizure of property not subject to the writ. In the present case the officer is sued for that very thing, and offered to prove that the property attached was the property of the defendant in the attachment, and was liable to be seized under that writ, and that plaintiff in the present suit had no valid title to it, at least no title paramount to the mandate of the writ, but the state court refused to permit him to make that proof. The ground of this ruling is that because there is a defect in the affidavit on which the attachment issued, that writ is absolutely void, and the officer who faithfully executed its commands stands naked before his adversary as a willful trespasser. It would seem that the mandatory process of a writ of general jurisdiction, with authority to issue such a process and to compel its enforcement at the hands of its own officer, in a case where the cause of action and the parties to it are before the court and are within its jurisdiction, cannot be absolutely void by reason of errors or mistakes in the preliminary acts which precede its issue. It may be voidable. It may be avoided by proper proceedings in that court. But when in the hands of the officer who is bound to obey it, with the seal of the court and everything else on its face to give it validity, if he did obey it, and is guilty of no error in this act of obedience, it must stand as his sufficient protection for that act in all other courts. The precise point as to the validity of this writ of attachment was under consideration in this court in the case of Cooper v. Reynolds, 10 Wall. 308, in which the effect of an insufficient affidavit for a writ of attachment was set up to defeat the title to land acquired by a sale under the attachment. The case has been often quoted since, and is conclusive in the federal courts in regard to the validity of their own process when collaterally assailed, as in the present case. The court, after discussing the nature of the jurisdiction in cases of attachment, their relation to suits in rem and in per- sonam the court in that class of cases depend? answers it thus: 'It seems to us that the seizure of the property, or that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in a proceeding purely in rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper office levied upon property liable to the attachment, when such writ is returned into the court the power of the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer whose duty it is to issue the writ may have failed in some manner to observe all the requisite formalities, but the writ being issued and levied, the affidavit has served its purpose; and though a revising court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon the defendant's property.' See Voorhies v. Bank of U. S. 10 Pet. 449; Grignon's Lessee v. Astor, 2 How. 319. If in a case where the title to land is to be divested by a proceeding in which its owner is not within the jurisdiction, and is never served with process nor makes any appearance, the writ on which the whole matter depends is held valid, though there be no sufficient affidavit to support it, how much more should the writ be held to protect the officer in a case where the defendant is in court and makes no objection to it, nor seeks to set aside to correct it, and where the court before it issues the writ has jurisdiction of the parties to the suit? We think that when the writ is offered in a collateral suit against the officer who executed it as evidence of the authority of the court to command him to attach the property of defendant in that suit, it is not void, though it might be avoided on a proper proceeding; and in the contest for the value of the goods seized, with a stranger who claims them, it is sufficient to raise the issue of the liability of those goods to the exigency of the writ. The judgment of the supreme court of Michigan is reversed, with directions for further proceedings in conformity to this opinion.

107.US.512

1. Under the act of Feb. 16, 1875, c. 77, a finding in a case of admiralty and maritime jurisdiction on the instance side of the Circuit Court has the effect of a special verdict in an action at law, and although no exceptions are filed, its sufficiency in connection with the pleadings to support the decree rendered is open to consideration on appeal. 2. A sailing-vessel meeting a steamer should keep her course, unless it is manifest that she would thereby occasion a collision. Where, therefore, as in this case by her unnecessary changes of course, she misled and embarrassed an approaching steamer that was laboring to keep out of her way, and a collision occurred whereby she was sunk, whereas had she kept on the course she was sailing when first seen by the steamer, or adhered to her first new course afterwards taken, a collision would not have happened, Hdd, that the steamer is not liable.

This case comes before us on appeal from a decree of the circuit court, with a finding of facts upon which it was rendered. We are, therefore, relieved of much of the embarrassment experienced on the trial, both by that court and the district court, from the difficulty of determining from the evidence the exact position of the vessels immediately preceding the collision. Here we must take the facts as found and apply the law to them. In cases of admiralty and maritime jurisdiction, on the instance side of the court, under the act of congress of 1875, the finding has the effect of a special verdict in an action at law. There is, it is true, a bill of exceptions in the record, but it contains exceptions only to the finding, and to the refusal of the court to find otherwise. It presents no question for our consideration except such as arises upon the facts as found. There is no occasion in any case to except specially to a finding, as its sufficiency, in connection with the pleadings, to support the decree rendered, is always open to consideration on appeal. On the evening of December 30, 1875, the ship Harvest Queen, an American vessel, sailed from the harbor of Queenstown, Ireland, for the port of Liverpool, England. She was 187 feel long, of 1,626 tons burden, and had at the time a cargo of grain on board. On the same day the steamer Adriatic, a British vessel, left Liverpool for New York, and proceeded down the Irish channel. She was 450 feet long, and of over 3,000 tons burden. Her forward deck was roofed with what is termed a turble-back, so called from its shape. The spray of the sea dashed over this roof, and the lookouts of the steamer were, therefore, stationed on a house just abaft of it. The wheel-house was on deck, and above and a little forward of it was the bridge on which the officer on watch usually took his position. Adjoining the wheel-house, and opening into it, was the chartroom. At a quarter past 2 on the morning of December 31st, the captain, who had been on duty all the time after leaving Liverpool, went into that room and lay down on a sofa, giving orders to be called at 4, or sooner if any vessels came in sight. The first officer was then on watch, standing on the bridge, most of the time on the starboard side. Three seamen were on the lookout,—one on each side of the house mentioned, and one on the port side of the bridge. At 35 minutes past 2 the first officer, looking through a night-glass, saw a green light about two points on his starboard bow. It could not be seen by the naked eye. It proved afterwards to be a light on the Harvest Queen. At this time the sky was clear, with scattering clouds, but on the water the night was dark; the wind was blowing a fresh breeze from the S. W., and the sea was running high. The steamer was going about 12 knots an hour, having all her lights in their proper places and burning brightly. Soon afterwards the light on the Harvest Queen was seen by one of the lookouts, and two strokes were given to the bell on the turtle-deck as a signal that a light was seen on the starboard bow. Four minutes after that—at 39 minutes past 2—the green light of the ship, which had broadened to three and a half points, changed to red. Up to this time the steamer had not altered her course. The character of the approaching vessel was not known, nothing but her light being seen. But, whether she was propelled by wind or steam, the steamer pursued the proper course to prevent the danger of collision. Her green light must have been equally visible from the Harvest Queen; and when two vessels keep the same colored lights in view of each other, collision is impossible, for they are them moving on parallel lines. The lights on vessels are required to be so placed as not to be seen across their bows. The red light coming in sight indicated that the ship had changed her course, and was no longer running on a parallel line, but in a direction which, if continued, would bring her across the bow of the steamer. The first officer, therefore, at once gave an order to port the helm, and signaled the engineer to stand by the engine, following this with a further order to slow the engine. Both these orders were promptly obeyed, and the steamer slowly swung to the right. As already stated, the steamer was going at the rate of 12 knots an hour. The Harvest Queen—judging from the time she occupied in passing over the distance from Queenstown—must have been sailing at the rate of eight knots an hour; that is, the two vessels were approaching each other at a speed equal to about 20 miles an hour. The light on the Harvest Queen could not have been seen that night further than two miles and a half, and over this distance the steamer with her speed had passed four-fifths of a mile, and the Harvest Queen a little more than one-half of a mile. So that, at this time, when the red light was seen, the vessels must have been about a mile and a quarter apart. At the rate they were moving they would come together or pass each other in four minutes. The first officer of the steamer at once perceived the necessity of an immediate change in her course so as to bring her on a parallel line with the approaching ship. To accomplish this it was necessary to port the helm of the steamer, which was at once done. The order to do this was, under the circumstances, the proper one to be given. The slowing of the speed of the steamer, by reason of the proximity of the other vessel, was also a proper proceeding. When a steamer is nearing another vessel, and there is danger of collision from continuing the rate of speed at which she is going, it is the duty of her captain to slacken her speed, and, if necessary, to reverse her engines and move her backwards. Such is the express language of rule 21, adopted by congress for the prevention of collisions on the water, which is as follows: 'Every steam-vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse; and every steam-vessel shall, when in a fog, go at a moderate speed.' Rev. St. § 4233. Had there been no other change in the course of the Harvest Queen, the new direction taken by the steamer would have carried her past that vessel without collision. But about a minute afterwards, or 40 minutes past 2, the red light of the Harvest Queen changed again to green. The steamer had then yielded to her helm and gone off a point to the starboard, and was swinging further in that direction. The first officer, seeing the reappearance of the green light, at once gave an order to stop the engine, and, as soon as it could be done, to back the steamer at full speed. This order was obeyed, and the engine was put in a reverse motion at about 41 minutes past 2. The captain was then called and immediately came on deck. Looking ahead he saw a green light not far away, about two points off the starboard bow; then green and red lights appeared together, and then the red alone. He noticed also that the helm was to the port side, and that the engine was under reversed action. Thereupon he gave the order from the deck, 'hard a-starboard,' which was obeyed. He then went on the bridge. Had the steamer been then going astern there could be no question as the propriety of this order; it would have turned her to the right and she would have passed on the left side of the Harvest Queen, showing red light to red light, the two vessels in that event moving on parallel lines. The effect of a starboard helm when a vessel is going astern is directly the opposite of that produced when she is going ahead. But at the time the order was given, the forward motion of the steamer had not been entirely overcome, and she was still moving ahead slowly. It appears, however, that, while thus moving with the reversed action of her engine, the steamer did not yield to her helm so as to materially change her forward direction. The order could not, therefore, have contributed to the collision. But, were it otherwise, we cannot say that the captain could be justly blamed. In considering his action, the question is not whether the order given was the best when viewed in the light of subsequent events, but whether under the circumstances in which he was placed it was that of a prudent and skillful commander. The nearness of the approaching ship and the frequent change in her light, while calling for prompt action on his part, were well calculated to embarrass and confuse him. Delay in acting was full of danger; there was no time for deliberation and consultation with others; and seeing the reversed movement of the engine he would naturally conclude that the ship had yielded or would soon yield to it and pass the approaching ship in safety. Soon after he reached the bridge the Harvest Queen appeared through the darkness under full sail and bore down directly on the steamer. Before anything could be done her jib-boom ran over the turtle-back of the steamer, and was broken in two, one part falling into the water. The engines of the steamer were then backing at full speed, and if she was not in fact going astern, she was, according to the finding of the circuit court, 'not going ahead much, if any.' She continued backing after the collision; and when the vessels separated the Harvest Queen passed across the bow her sails atic from port to starboard. Her masts were standing and her sails were all set. The first officer of the steamer hailed her, but received no answer from any one; no hail came from her. She gave no signs of serious injury, yet she was in some way injured so severely that soon afterwards she sank with all on board. Immediately after the separation of the vessels, the captain of the steamer gave orders to clear away the boats; but, the Harvest Queen keeping in sight, the orders were countermanded, and the Adriatic steamed slowly towards her until she became lost to view. It was about that time that cries for help were heard in the water, in the direction where the ship was last seen. The engines were stopped and an order to lower the boats was immediately given. Two boats, under command of officers of the steamer, put out in search of the parties from whom the cries were heard. They were rowed in the direction whence the cries came; but after remaining out for half an hour to an hour they were recalled by a signal from the steamer. Nothing was ever afterwards heard of any of the ship's crew, and only a few fragments of the vessel were ever found. The vessel and cargo were a total loss. The present libel was filed to recover their value in damages, alleged to be $225,000. The libelants charge that the collision was caused by the negligence and improper conduct of those on board the steamer (1) in not having a good and sufficient lookout; (2) in running at too great a speed; (3) in not keeping out of the way of the Harvest Queen; and (4) in not stopping and backing in time to avoid the collision. From the narrative we have given of the facts of the case, which is but a summary of the findings of the circuit court, stating the facts with much greater detail and particularity, it is evident that these allegations are not sustained in any essential particular. While the vessels were over two miles apart, the green light on the Harvest Queen was distinctly seen. A similar light on the Adriatic could easily have been seen, and, if the lookouts were attending to their duty, probably was seen, from the ship. Those light being visible, it was only necessary for the vessels to keep in their course, and collision would have been impossible. The subsequent changes made by the steamer were caused by previous changes in the course of the ship, as indicated by the showing of her lights. While it was the duty of the steamer to keep out of the way of the ship, being more under control, it was no less the duty of the ship to avoid anything tending to mislead and embarrass the steamer in the performance of this duty. That she did thus mislead and embarrass the steamer is plain from the statement already made. To one at a distance her changing lights were confusing—indicating either doubt on the part of her officers as to the course to be taken, or, what is more likely to have been the case, the absence of a good and sufficient lookout on board of the ship to report the sight and approach of the steamer. The continued appearance of the green light for the first four minutes after it was seen, answers the suggestion that the change of lights on the Harvest Queen was the result of the swinging of the vessel from the wind and sea, and not from an alteration in her course. The general rule as to the conduct of a ship under circumstances like those presented in this case in much stronger against the course the Harvest Queen pursued than we have stated. That rule is for a sailing vessel meeting a steamer to keep her course, while the steamer takes the necessary measures to avoid collision. In Crockett v. Newton this court said that 'though the rule should not be observed when circumstances are such that it is apparent its observance must occasion a collision, while a departure from it will prevent one, yet it must be a strong case which puts the sailing vessel in the wrong for obeying the rule,' (18 How. 583;) and in New York & Liverpool U. S. Mail Steam-ship Co. v. Rumball, that 'under the rule that a steamer must keep out of the way, she must of necessity determine for herself and upon her own responsibility, independently of the sailing vessel, whether it is safer to go to the right or left or to stop; and in order that she may not be deprived of the means of determining the matter wisely, and that she may not be defeated or baffled in the attempt to perform her duty in the emergency, it is required, in the admiralty jurisprudence of the United States, that the sailing vessel shall keep her course, and allow the steamer to pass either on the right or left, or to adopt such measures of precaution as she may deem best suited to enable her to perform her duty and fulfill the requirement of the law to keep out of the way.' 21 How. 384. Here, so far from observing this rule the ship, by her frequent changes, embarrassed the action of the steamer, and prevented her from continuing in a course which would have avoided the disastrous result. If the ship had kept on the course she was sailing when first seen, or had adhered to the first new course afterwards taken, no collision would have happened. It seems to us plain, upon the facts found by the circuit court, that whatever fault there was which caused the collision it originated with the ship and not the steamer. The decree is therefore affirmed.

109.US.527

1. The Parliament of Canada has authority to grant to an embarrassed railway corporation within the Dominion power to make an arrangement with its mortgage creditors for the substitution of a new security-in the place of the one they hold, and to provide that the arrangement shall be binding on all the holders of obligations secured by the same mortgage when it shall have received the assent of the majority, provision being made for the protection of the minority in the enjoyment of rights and privileges in the new security identical with those of the majority. 2. When the Parliament of the Dominion of Canada authorizes a corporation, existing under its authority, to enforce upon its mortgage creditors a settlement by which they are to receive other securities of the corporation in place of their mortgage bonds, and the scheme is assented to by a large majority of bondholders, and goes into effect, and the right of citizensof the United States who are bondholders to participate in the reorganization on the same terms as Canadians or other British subjects is preserved and recognized, the settlement is binding upon bondholders who are citizens of the United States, and who sue in courts of the United States to recover on their bonds. Statement of Facts.

1. There is no constitutional prohibition in Canada against the passage of laws impairing the obligation of contracts, and the parliament of the dominion had, in 1878, exclusive legislative authority over the corporation, and the general subjects of bankruptcy and insolvency in that jurisdiction. As to all matters within its authority, the dominion parliament has 'plenary legislative powers as large and of the same nature as those of the imperal parliament.' City of Fredericton v. The Queen, 3 Can. Sup. Ct. 559. On the twentieth of August, 1867, the parliament of Great Britain passed the 'railway companies act, 1867.' 2 St. 1332; 30, 31, Vict. c. 127. This act provides, among other things, for the prepara ion of 'schemes of arrangement' between railway companies unable to meet their engagements and their creditors, which can be filed in the court of chancery, accompanied by a declaration in writing, under the seal of the company and verified by the oaths of the directors, to the effect that the company is unable to meet its engagements with its creditors. Notice of the filing of such a scheme must be published in the Gazette, and the scheme is to be deemed assented to by the holders of mortgages. bonds, debenture stock, rent-charges, and preference shares, when assented to in writing by the holders of three-fourths in value of each class of security, and by the ordinary shareholders when assented to at an extraordinary general meeting specially called for that purpose. Provision is then made for an application to the court by the company for a confirmation of the scheme. Notice of this application must be published in the Gazette, and, after hearing, the court, if satisfied that no sufficient objection to the scheme has been established, may confirm it. 'The scheme, when confirmed, shall be enrolled in the court, and thenceforth the same shall be binding and effectual to all intents, and the provisions thereof shall, against and in favor of the company and all parties assenting thereto or bound thereby, have the like effect as if they had been enacted by parliament.' This act, it is apparent, was not passed to provide, for the first time, a way in which insolvent and embarrassed railway companies might settle and adjust their affairs, but to authorize the court of chancery to do what had before been done by parliament. Lord CAIRNS, L. J., said of it in Cambrian Railways Company's Scheme, L. R. 3 Ch. 294: 'Hitherto such companies, if they desired to raise further capital to meet their engagements, have been forced to go to parliament for a special act enabling them to offer such advantages, by way of preference or priority, to persons furnishing new capital as would lead to its being obtained. And parliament, in dealing with such applications, has been in the habit of considering how far the arrangements proposed, as to such new capital, were assented to or dissented from by those who might be considered as the proprietors of the existing capital of the company, either as shareholders or bondholders. The object of the present act * * * appears to be to dispense with a special application to parliament of the kind I have described, and to give a parliamentary sanction to a scheme filed in the court of chancery, and confirmed by the court, and assented to by certain majorities of shareholders, and of holders of debentures and securities ejusdem generis.' And even now in England special acts are passed whenever the provisions of the general act are not such as are needed to meet the wants of a particular company. A special act of this kind was considered in London Financial Ass'n v. Wrexham, M. & C. Q. Ry. Co. L. R. 18 Eq. 566. In Canada no general statute like that in England has been enacted, but the old English practice of passing a special act in each particular case prevails, and OSLER, J., said in Jones v. Canada Cent. Ry. Co. 46 U. C. Q. B. 261, 'our statute books are full' of legislation of the kind. The particular question in that case was whether, after the establishment of the dominion government, the provincial parliaments had authority to pass laws with reference to provincial corporations which would operate upon debentures payable in England, and held by persons residing there, but it was not suggested, either by the court or counsel, that a statute of the kind, passed by the dominion parliament in reference to a dominion corporation, would not be valid as a law. So far as we are advised, the parliamentary authority for such legislation has never been doubted either in England or Canada. Many cases are reported in which such statutes were under consideration, but in no one of them has it been intim ted that the power was even questionable. In Gilfillan v. Union Canal Co., [ante, 304,] at the present term, it was said that holders of bonds and other obligations issued by large corporations for sale in the market, and secured by mortgages to trustees, or otherwise, have, by fair implication, certain contract relations with each other. In England, we infer from what was said by Lord CAIRNS in Cambrian Railways Company's Scheme, supra, they are considered as in a sense part proprietors of the existing capital of the company, and dealt with by parliament and the courts accordingly. They are not there, any more than here, corporators, and thus necessarily, in the absence of fraud or undue influence, bound by the will of the majority as to matters within the scope of the corporate powers, but they are interested in the administration of a trust which has been created for their common benefit. Ordinarily their ultimate security depends in a large degree on the success of the work in which the corporation is engaged, and it is not uncommon for differences of opinion to exist as to what ought to be done for the promotion of their mutual interests. In the absence of statutory authority, or some provision in the instrument which establishes the trust, nothing can be done by a majority, however large, which will bind a minority without their consent. Hence, it seems to be eminently proper that where the legislative power exists some statutory provision should be made for binding the minority in a reasonable way by the will of the majority; and unless, as is the case in the states of the United States, the passage of laws impairing the obligation of contracts is forbidden, we see no good reason why such provision may not be made in respect to existing as well as prospective obligations. The nature of securities of this class is such that the right of legislative supervision for the good of all, unless restrained by some constitutional prohibition, seems almost necessarily to form one of their ingredients, and when insolvency is threatened, and the interests of the public as well as creditors are imperiled by the financial embarassments of the corporation, a reasonable 'scheme of arrangement' may, in our opinion, as well be legalized as an ordinary 'composition in bankruptcy.' In fact such 'arrangement acts' are a species of bankrupt acts. Their object is to enable corporations, created for the good of the public, to relieve themselves from financial embarassments by appropriating their property to the settlement and adjustment of their affairs, so that they may accomplish the purposes for which they were incorporated. The necessity for such legislation is clearly shown in the preamble to the Grand Trunk arrangement act, 1862, passed by the parliament of the province of Canada on the ninth of June, 1862, before the establishment of the dominion government, and which is in these words: 'Whereas, the interest on all the bonds of the Grand Trunk Railway Company of Canada is in arrear, as well as the rent of the railways leased to it, and the company has also become indebted, both in Canada and in England, on simple contract, to various persons and corporations, and several of the creditors have obtained judgment against it, and much litigation is now pending; and whereas, the keeping open of the railway traffic, which is of the utmost importance to the interests of the province, is thereby imperiled, and the terms of a compromise have been provisionally settled between the different classes of creditors and the company, but in order to facilitate and give effect to such compromise the interference of the legislature of the province is necessary.' The confirmation and legalization of 'a scheme of arrangement' under such circumstances is no more than is done in bankruptcy when a 'composition' agreement with the bankrupt debtor, if assented to by the required majority of creditors, is made binding on the non-assenting minority. In no just sense do such governmenta regulations deprive a person of his property without due process of law. They simply require each individual to so conduct himself for the general good as not unnecessarily to injure another. Bankrupt laws have been in force in England for more than three centuries, and they had their origin in the Roman law. The constitution expressly empowers the congress of the United States to establish such laws. Every member of a political community must necessarily part with some of the rights which, as an individual, not affected by his relation to others, he might have retained. Such concessions make up the consideration he gives for the obligation of the body politic to protect him in life, liberty, and property. Bankrupt laws, whatever may be the form they assume, are of that character. 2. That the laws of a country have no extraterritorial force is an axiom of international jurisprudence, but things done in one country under the authority of law may be of binding effect in another country. The obligor of the bonds and coupons here sued on was a corporation created for a public purpose; that is to say, to build, maintain, and work a railway in Canada. It had its corporate home in Canada, and was subject to the exclusive legislative authority of the Dominion parliament. It had no power to borrow money or incur debts except for completing, maintaining, and working its railway. The bonds taken by the defendants in error showed on their face that they were part of a series amounting in the aggregate to a very large sum of money, and that they were secured by a trust mortgage on the railway of the company, its lands, tolls, revenues, etc. In this way the defendants in error, when they bought their bonds, were, in legal effect, informed that they were entering into contract relations, not only with a foreign corporation created for a public purpose, and carrying on its business within a foreign jurisdiction, but with the holders of other bonds of the same series, who were relying equally with themselves for their ultimate security on a mortgage of property devoted to a public use, situated entirely within the territory of a foreign government. A corporation 'must dwell in the place of its creation, and cannot migrate to another sovereignty,' (Bank of Augusta v. Earle, 13 Pet. 588,) though it may do business in all places where its charter allows and the local laws do not forbid. Railroad v. Koontz, 104 U. S. 12. But wherever it goes for business it carries its charter, as that is the law of its existence, (Relf v. Rundle, 103 U. S. 226,) and the charter is the same abroad that it is at home. Whatever disabilities are placed upon the corporation at home it retains abroad, and whatever legislative control it is subjected to at home must be recognized and submitted to by those who deal with it elsewhere. A corporation of one country may be excluded from business in another country, (Paul v. Virginia, 8 Wall. 168,) but, if admitted, it must, in the absence of legislation equivalent to making it a corporation of the latter country, be taken, both by the government and those who deal with it, as a creature of the law of its own country, and subject to all the legislative control and direction that may be properly exercised over it at the place of its creation. Such being the law, it follows that every person who deals with a foreign corporation impliedly subjects himself to such laws of the foreign government, affecting the powers and obligations of the corporation with which he voluntarily contracts, as the known and established policy of that government authorizes. To all intents and purposes, he submits his contract with the corporation to such a policy of the foreign government, and whatever is done by that government in furtherance therance of that policy, which binds those in like situation with himself, who are subjects of the government, in respect to the operation and effect of their contracts with the corporation, will necessarily bind him. He is conclusi ely presumed to have contracted with a view to such laws of that government, because the corporation must of necessity be controlled by them, and it has no power to contract with a view to any other laws with which they are not in entire harmony. It follows, therefore, that anything done at the legal home of the corporation, under the authority of such laws, which discharges it from liability there, discharges it everywhere. No better illustration of the propriety of this rule can be found than in the facts of the present case. This corporation was created in Canada to build and work a railway in that dominion. Its principal business was to be done in Canada, and the bulk of its corporate property was permanently fixed there. All its powers to contract were derived from the Canadian government, and all the contracts it could make were such as related directly or indirectly to its business in Canada. That business affected the public interests, and the keeping of the railway open for traffic was of the utmost importance to the people of the dominion. The corporation had become financially embarrassed, and was and had been for a long time unable to meet its engagements in the ordinary way as they matured. There was an urgent necessity that something be done for the settlement of its affairs. In this the public, the creditors, and the shareholders were all interested. A large majority of the creditors and shareholders had agreed on a plan of adjustment which would enable the company to go on with its business, and thus accommodate the public, and to protect the creditors to the full extent of the available value of its corporate property. The dominion parliament had the legislative power to legalize the plan of adjustment as it had been agreed on by the majority of those interested, and to bind the resident minority creditors by it terms. This power was known and recognized throughout the dominion when the corporation was created, and when all its bonds were executed and put on the market and sold. It is in accordance with and part of the policy of the English and Canadian governments in dealing with embarrassed and insolvent railway companies, and in providing for their reorganization in the interest of all concerned. It takes the place in England and Canada of foreclosure sales in the United States, which in general accomplish substantially the same result with more expense and greater delay, for it rarely happens in the United States that foreclosures of railway mortgages are anything else than the machinery by which arrangements between the creditors and other parties in interest are carried into effect, and a reorganization of the affairs of the corporation under a new name brought about. It is in entire harmony with the spirit of bankrupt laws, the binding force of which, upon those who are subject to the jurisdiction, is recognized by all civilized nations. It is not in conflict with the constitution of the United States, which, although prohibiting states from passing laws imparing the obligation of contracts, allows congress 'to establish * * * uniform laws on the subject of bankruptcy throughout the United States.' Unless all parties in interest, wherever they reside, can be bound by the arrangement which it is sought to have legalized, the scheme may fail. All home creditors can be bound. What is needed is to bind those who are abroad. Under these circumstances the true spirit of international comity requires that schemes of this character, legalized at home, should be recognized in other countries. The fact that the bonds made in Canada were payable in New York is unimportant, except in determining by what law the parties intended their contract should be governed, and every citizen of a country, other than that in which the corporation is located, may protect himself against all unjust legislation of the foreign government by refusing to deal with its corporations. On the whole we are satisfied That the scheme of arrangement bound the defendants in error, and that these actions annot be maintained. The same result was reached by the court of queen's bench in the province of Ontariowhen passing on a similar statute in Jones v. Canada Cent. Ry. Co., supra. The judgments are reversed and the causes remanded, with instructions to enter judgment on the facts found in favor of the railway company in each of the cases. The Canada Southern Railway Company is a corporation created and organized under the laws of the dominion of Canada. It was given, by its charter, power to borrow in Canada or 'elsewhere,' at a rate of interest not exceeding 8 per cent. per annum, such sums of money as might be necessary to complete, maintain, or work its railway; to issue bonds therefor, payable either in currency or in sterling, at such place, within Canada 'or without,' as might be deemed advisable; to sell the same at such prices or discount as might be deemed expedient or necessary; and to hypothecate, mortgage, or pledge the lands, tolls, revenues, and other property of the company for the payment of the said sums and the interest thereon. In pursuance of the authority thus conferred, the company, in 1871, issued its bonds in the customary form of negotiable securities, and made them payable in the year 1906, at the office of the Union Trust Company in the city of New York, with interest at the rate of 7 per cent. per annum, coupons being given for such interest. These bonds, with their interest, were secured by a deed of trust to William L. Scott and Kenyon Cox, citizens of the United States, conveying to them, and their successors in the trust, the railway of the company, its lands, tolls, revenues, present and future, property, effects, franchises, and appurtenances. That deed declared that the bonds, and also the rights and benefits arising therefrom, should pass by delivery. In 1873 the company issued certain bonds, of the denomination of $105 each, for the purpose of funding unpaid coupons. They were made payable, principal and interest in gold, at the office of the Union Trust Company in the city of New York. In order to effect this arrangement for funding, the latter company was made a trustee to deliver the bonds of $105 each to the parties surrendering the unpaid coupons. Of some of these bonds defendants in error, who are citizens of New York, became the holders. They were delivered to them at the city of New York. Upon their non-payment at maturity, the present suits at law were brought in one of the courts of that state, and judgment asked for the amount of the bonds. The railway company appeared, and upon its petition the suits were removed into the circuit court of the United States for the southern district of New York. In the latter court an answer was filed, to which the plaintiff demurred. The demurrer being sustained and the company declining to answer further, judgment was rendered for the amount due on the bonds in suit. What is the defense which my brethren have declared to be sufficient to deprive the plaintiffs of their right to judgment? That the company had paid the bonds in suit, in whole or in part? That the That, by the terms of the contract, it was discharged from liability to pay them? By no means. Its defense is placed wholly upon an act of the parliament of Canada, ratifying a certain scheme or arrangement, which is inconsistent with the contract between the parties, and to which a large minority of the bondholders and stockholders have never given their assent. That scheme provided for the surrender of the old bonds, bearing 7 per cent. interest, and the substitution of other bonds, maturing at a later date, and bearing a less rate of interest—3 per cent. for the first three years, and 5 per cent. thereafter, the interest on the new bonds being guarantied by the New York & Hudson River Railroad Company. To this scheme the circuit court finds as a fact that the pl intiffs never assented. They stood, as they had the right to do, upon their contract with the company. But the parliament of Canada declares that this scheme 'shall be deemed to have been assented to by all the holders of the original first mortgage bonds of the company,' and that this arrangement 'shall be binding upon all the holders of the first and second mortgage bonds and coupons and bonds for interest thereon respectively, and upon all the shareholders of the company.' This defense, asserting the power of a foreign government, by its legislation, to destroy the contract rights of citizens of the United States, was well characterized, as it seems to me, by the learned circuit judge who tried this case, as a most extraordinary one to be made in a country where the obligation of contracts against impairment by legislative enactment, as well as the rights of persons and property, are carefully guarded by constitutional provisions. In this country, no state can pass any law impairing the obligation of contracts; the constitution of the United States forbids such legislation. And the principle is founded in justice, independently of this constitutional provision. The statute of Canada here relied on disregards this principle, and openly and in terms impairs the obligation of the contract which each holder of these bonds has with this foreign railway company. It assumes, without a hearing and without the consent of those who hold its bonds, to discharge the railway company from all liability thereon. If any state in this Union should assume to pass a law with reference to a railway corporation she had created, requiring the holders of its bonds, for which they had paid value, to surrender them and take in their place others of less value, and payable at a different time, our courts, federal and state, would be constrained, by their obligation to support the constitution of the United States, to declare such legislation to be in conflict with that instrument. More than that, a citizen of Canada, or even a railway corporation of that dominion, could have the benefit, in our courts, of the constitutional inhibition upon state laws impairing the obligation of contracts. In the Sinking-fund Cases, 99 U. S. 718, we said that while the United States are not included within the constitutional prohibition which prevents states from passing laws impairing the obligation of contracts, yet 'equally with the states they are prohibited from depriving persons or corporations of property without due process of law. They cannot legislate back to themselves, without making compensation, the lands they have given this corporation to aid in the construction of its railroad. Neither can they by legislation compel the corporation to discharge its obligations in respect to the subsidy bonds otherwise than according to the laws of the contract already made in that connection. The United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a state, or a municipality, or a citizen. No change can be made in the title created by the grant of the lands, or in the contract for the subsidy bonds, without the consent of the corporation.' But the laws of Canada, by the judgment now rendered, are given effect here, to the injury of our own citizens, notwithstanding those laws arbitrarily deprive them of their contract rights. This railroad company, under express authority conferred by its charter, executed bonds payable, as we have seen, in New York, and secured them by mortgage executed to citizens of the United States. It sent them to this country for sale and our people invested their money in them. Intrenched behind the arbitrary edict of a foreign government, it now says to American holders of its bonds that it will not comply with its contract; that if they do not surrender those securities and take others of less value they shall not receive anything. It is claimed by my brethren that the Canada statute provides a scheme which, in its practical effect, resembles a composition in bankruptcy. It seems to me that there are several answers to this suggestion: (1) It does not purport to be a scheme of bankruptcy in the sense of the word 'bankruptcy' as used either in England or America. (2) It is unlike a composition in bankruptcy in this: that whereas a composition is never had except upon notice, so that creditors may have their day in court, with opportunity to show that the proposed composition should not be made, here, no such opportunity was given to the holders of this company's bonds, in any court or other tribunal, to show that the arrangement which the Canadian parliament sanctioned ought not, in justice, to be made; but the arrangement was, by legislative enactment, made absolutely binding upon every bondholder and stockholder, even those who are citizens of other countries. It is said that the Canadian scheme is practically nothing more than might be accomplished in foreclosure proceedings instituted in one of our own courts by or at the instance of the assenting bondholders. My answer is that all bondholders and stockholders have their day in court in such proceedings; and when, upon the judicial sale of a railway and its appurtenances, they fail to realize the full amount of their claims, they are not deprived of their property without due process of law. Reference is made by the court to the act of the English parliament WHICH AUTHORIZES SUCH ARRANGEMENTS TO BE effected through courts of chancery. But, in such proceedings, all interested have their day in court, with opportunity to show that the proposed scheme should not receive judicial sanction. In my judgment, the discharge in Canada, by statute, of this foreign railway company from all obligation to pay these bonds according to their terms—whatever may be the binding force of such legislation upon persons resident in that country, or upon those who may assert their rights under the original contract in the courts of Canada—can have no extraterritorial effect; certainly none as to persons who reside in a different state or country, where the contract is to be performed, and in the courts of which it becomes the subject of litigation. In Baldwin v. Hale, 1 Wall. 223, it was held that a discharge obtained under the insolvent law of one state of the Union is not a bar to an action on a note, even when given in and payable in the same state, the party to whom the note was given having been and being of a different state. Story, in his Conflict of Laws, says that should a state provide that the discharge of an insolvent debtor under her own laws was a discharge of all his contracts, even of those made in a foreign country, such a discharge, although binding upon the courts of that state, would, or might be, mere nullities in other countries. Section 348. Chancellor KENT, referring to state insolvent laws, in operation when there is no national bankrupt statute, says: 'The discharge under a state law is no bar to a suit on a contract existing when the law was passed, nor to an action by a citizen of another state in the courts of the United States, or of any other state than that where the discharge was obtained. The discharge under a state law will not discharge a debt due to a citizen of another state who does not make himself a party to a proceeding under the law. It will only operate upon contracts made within the state between its own citizens or suitors, subject to state power. The doctrine of the supreme court of the United States, in Ogden v. Saunders, 12 Wheat. 213, is that a discharge under the bankrupt law of one country does not affect contracts made or to be executed in another.' 2 Kent, 392, 393. Such is the unvarying current of authority in this country. If a discharge by an insolvent law of one of the United States does not affect the contract rights of citizens of another state, how much stronger is the case where, by the terms of the contract, it is to be performed in a state or country other than that in which the discharge is granted. My brethern suggest, if I do not misapprehend their opinion, that the parties here suing must be understood to have purchased these bonds with reference to the power which the Canadian government has over corporations of its own creation. But this view, it seems to me, overlooks the principle, founded, says Story, in natural justice—and applicable here, even if the bonds in suit had been purchased and delivered in Canada—that 'where the contract is, either expressly or tacitly, to be performed in another place than where made, the rule is, in conformity with the presumed intention of the parties, that the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance.' Confl. Laws, § 280; Andrews v. Pond, 13 Pet. 65; Cook v. Moffat, 5 How. 307. Why should it not be presumed that the parties to these contracts made them with reference as well to that principle as to another principle which is thus forcibly stated by Kent: 'The laws of other governments have no force beyond their territorial limits; and if permitted to operate in other states, it is upon a principle of comity and only when neither the state nor its citizens would suffer any inconvenience from the application of the foreign law.' 2 Kent, 406. Story announces the same doctrine in the following language: 'And even in relation to a discharge according to the laws of the place where the contract is made, there are (as we have seen) some necessary limitations and exceptions ingrafted upon the general doctrine which every country will enforce, whenever those laws are manifestly unjust, or are injurious to the fair rights of its own citizens. It has been said by a learned judge with great force: 'As the laws of foreign countries are not admitted ex proprio vigore, but merely ex comitate, the judicial power will exercise a discretion with respect to the laws, which they may be called upon to sanction; for should they be manifestly unjust, or calculated to injure their own citizens, they ought to be rejected. Thus, if any state should enact that its citizens should be discharged from all debts due to creditors living without the state, such a provision would be so contrary to the common principles of justice that the most liberal spirit of comity would not require its adoption in any other state." In 1 Burg. Col. & For. Laws, 5, the author says: 'It is established as a principle of international jurisprudence that effect should be given to the laws of another state whenever the rights of a litigant before its tribunals are derived from, or are dependent on, those laws, and when such recognition is not prejudicial to its own interests or the rights of its own subjects.' The same view is thus expressed by another American author: 'It [the state] must consult sound morals and the interests and public policy of its own people, and if to enforce the laws of another state or country would lead to their infringement, it would be treacherous to its own duties to lend aid to their execution.' 1 Daniel, Neg. Inst. § 866. In Smith v. Buchanan, 1 East, 6, 11, the question was whether a discharge of an English contract under an insolvent act of the state of Maryland, where the debtor resided, was a bar to a suit upon that contract in the courts of England. The point was there made that the discharge under the laws of Maryland was analagous and equivalent to a certificate of bankruptcy in England; and having been issued by a competent jurisdiction in the case of subjects of Maryland residing there at the time, though it had not the binding force of law in England, yet the courts there should give effect to it 'by adoption and the courtesy of nations.' But to that argument the court, speaking by Lord KENYON, said: 'This is the case of a contract lawfully made by a sub ect in this country, which he resorts to a court of justice to enforce; and the only answer is that a law has been made in a foreign country to discharge these defendants from their debts on condition of their having relinquished all their property to their creditors.' 'But how,' said he, 'is that an answer to a subject of this country, suing on a lawful contract made here? How can it be pretended he is bound by a condition to which he has given no assent, either express or implied?' 'In America,' adds Story, referring to that case, 'the same doctrine has obtained the fullest sanction.' Story, Confl. Laws, § 342. So also in Bartley v. Hodges, 1 Best & S. 375, where the defendant pleaded, in a court of England, an insolvent discharge under the laws of Victoria, a British colony. The court said: 'No case has been cited to show that a discharge under the insolvent laws of Victoria is an answer to an action here, brought by an English subject on a bill of exchange drawn and payable in England. * * * It is true that the colony of Victoria is not a foreign country in one sense of the word, yet its laws are the laws of that colony only. * * * It might as well be said that the laws of the state of Maryland would apply here.' So also in Phillips v. Allan, 8 Barn. & C. 477, it was held that an insolvent discharge under the laws of Scotland was no bar to an action brought by an English subject in a court in England on a debt contracted in England, although it appeared that the English creditor had appeared in the Scottish proceedings for the purpose only of opposing the discharge. The case, then, before us, is one in which a foreign railway corporation pleads in discharge of its liability to pay its negotiable securities held by citizens of the United States, and which were delivered and are payable in this country, not that it had paid such securities; not that there had been a composition in bankruptcy embracing these claims; not that any court had given its sanction to the scheme in question; but that a statute of a foreign country, without the consent of those who did not approve such scheme, and without giving an opportunity before any authorized tribunal to show that such scheme ought not to be ratified, had absolved it from liability to meet its contract engagements. This defense my brethren feel obliged, upon grounds of international comity, to sustain. Thus, an American court denies to American holders of foreign railway securities what an English court would not deny to English holders of American railway securities. An English court would not permit the rights of Englishmen, growing out of a contract between them and a foreign corporation, which is to be performed in England, to be injuriously affected by foreign laws in violation of the terms of that contract. I fully concur in what the circuit judge said: 'If any of our own states had passed such an act as the one under consideration, it would have been the duty of the courts of that state to treat it as an unlawful exercise of power; and certainly it cannot be expected that this court will tolerate legislation by a foreign state which it would not sanction if passed here, and which, if allowed to operate, would seriously prejudice the rights of a citizen of this state. Comity can ask no recognition of such unjust foreign legislation, and the case falls under the qualifications of a general rule, which prescribes that when the foreign law is repugnant to the fundamental principle of the lex fori, it will be ignored.' The principles for which I contend are not affected, in their application to this case, by the circumstance that the legislation of Canada relates to the contracts of a quasi public corporation and not to contracts wholly between individuals. For, in determining whether a statute impairs the obligation of a contract, within the meaning of our constitution, it must be conceded that that instrument protects such obligation against legislative impairment as well in cases of c ntracts with railway corporations as of contracts between individuals. It is equally clear that debts held against such corporations are property of which the citizen may not be deprived without due process of law. We said in Pritchard v. Norton, 106 U. S. 132, [1 SUP. CT. REP. 102,] that 'a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the principles of the common law, it is not competent for the legislature to take it away.' Railway corporations are, undoubtedly, public instrumentalities employed by government to accomplish public purposes. But in this country the legislative department may not, under the guise of regulating such corporations, arbitarily deprive creditors of the benefit of their claims against them, or impair the obligation of contracts which individuals have with them. This, perhaps, would not be disputed were this a contest between American citizens, or even citizens of Canada, and an American railway corporation. As I do not think that a foreign railway corporation is entitled, upon principles of international comity, to have the benefit, in our courts—to the prejudice of our own people and in violation of their contract and property rights—of a foreign statute which could not be sustained had it been enacted by congress or by any one of the United States, with reference to the negotiable securities of an American railway corporation; and, as I do not agree that an American court should accord to a foreign railway corporation the privilege of repudiating its contract obligations to American citizens, when it must deny any such privilege, under like circumstances, to our own railway corporations, I dissent from the opinion and judgment of the court. Mr. Justice Field not being present at the argument of this case took no part in the decision.

108.US.510

In a suit brought by a District Attorney of the United States to set aside a patent conveying public lands, objection was taken in this court that it does not sufficiently appear that the suit was brought under authority from the Attorney-General Hedd, That, the objection not having been taken below, the fact of such authority could be inquired into and shown here. On the evidence it appeared that the lands in question were mineral lands, and were known to be such by the applicant for the patent, and agent for the railroad company, at the time of the application. The patent was set aside.

John M. Coghlan, district attorney of the United States for the District of California, on behalf of the United States, brought the bill in this case in the circuit court of that district against the Western Pacific Railroad Company and Charles McLaughlin to set aside a patent of the United States conveying to the railroad company the northeastern quarter of section 29, township one (1) north, range one (1) east, of Mount Diabolo meridian. This patent was made under the acts of Congress granting lands to the Union Pacific, Central Pacific, and Western Pacific Railroad Companies, to aid in building a road from the Missouri River to the Pacific Ocean. The acts of Congress granted to each company the alternate sections within certain limits on each side of its road, and authorized the issue of patents for the same when the work was done and the sections ascertained. But they excepted out of this grant, among others, such sections or parts of sections as were mineral lands. The bill in this case alleges, as the reason for vacating and setting aside the patent, that the quarter-section in question is mineral land, that it was so at the time of the grant, and was known to be so when the patent was issued, which was so issued without authority of law by inadvertence and mistake. The patent itself is not in the record as an exhibit, or as part of the evidence. The Western Pacific Railroad Company, to whom it was issued, though made defendant in the bill, was not served with the subpoena and did not appear. McLaughlin, the only defendant who did appear, defends as purchaser two degrees removed from the company. Instead of a general replication to McLaughlin's answer, the reply is an amendment to the original bill. The whole record is so imperfect and the case so obscurely presented, that we feel tempted to dismiss it. Waiving, however, these objections, there is enough to enable us to consider the two principal errors assigned by appellant. The first of these is that there is no sufficient evidence that the suit was instituted under the authority of the Attorney-General, according to the principle established in the case of United States v. Throckmorton, 98 U.S. 61. To this it may be answered that the objection was not raised in this case in the court below, as it was in that; that the case is argued in this court on behalf of the government by the Assistant Attorney-General, who files in the court, a certified copy of the order of the Attorney-General directing the district attorney to bring the suit in the circuit court, as requested by the Secretary of the Interior. We think the decree of that court, under these circumstances, can hardly be reversed now, on this ground, taken here for the first time. The other objection to the decree in favor of the United States is that the evidence does not establish as a fact that the land in controversy was mineral land when the patent issued. An examination of the evidence on this subject convinces us that the circuit judge was right in holding that it was. It is satisfactorily proven, as we think, that cinnabar, the mineral which carries quicksilver, was found there as early as 1863, that a man named Powell resided on the land and mined this cinnabar at that time, and in 1866 established some form of reduction works there; that these were on the ground when application for the patent was made by defendant McLaughlin, as agent of the Western Pacific Railroad Company, and that these facts were known to him. He is not, therefore, an innocent purchaser. Concurring as we do with the circuit court in the result arising from the evidence, we do not deem it necessary to give in this opinion a detailed examination of it. This being the first case of the kind in this court, a class of cases which may possibly be indefinitely multiplied, it is to be regretted that it was not more fully presented in the circuit court. Many interesting questions might arise in this class of cases not proper to be considered in this case. For instance, the nature and extent of mineral found in the land granted or patented which will bring it within the designation of mineral land in the various acts of Congress, in which it is excepted out of grants to railroad companies and forbidden to be sold or pre-empted as ordinary or agricultural lands are. Suppose that when such land has been conveyed by the government it is afterwards discovered that it contains valuable deposits of the precious metals, unknown to the patentee or to the officers of the government at the time of the conveyance, will such subsequent discovery enable the government to sustain a suit to set aside the patent or the grant? If so, what are the rights of the innocent purchasers from the grantee, and what limitations exist upon the exercise of the government's right? We can answer none of these questions here, and can only order that the decree below be affirmed.

107.US.205

1. An assignee of a chose in action, or any other cestui que trust, cannot, merely on the ground that his interest is an equitable one, proceed in a court of equity to recover his demand. Hayward v. Andrews, 106 U. S. 672, cited upon this point and approved. 2. The courts of the United States especially, in view of the act of Congress declaring that suits in equity shall not be sustained where there is a plain, adequate, and complete remedy at law, should enforce this rule. 3. Certain parties holding bonds secured by a mortgage filed their bill to recover moneys alleged to be due on a contract which the city of Memphis made with the mortgagor, and which was assigned in the mortgage as part of the security for the bonds. Hdd, that the bill will not lie, the demand against the city being cognizable at law in the name of the mortgagor, and no special circumstances shown for a resort to equity.

This case was commenced by a bill in equity filed by the New York Guaranty & Indemnity Company and others, holders of bonds of the Memphis Water Company, against said water company, the city of Memphis, the trustees of a mortgage given to secure said bonds, and certain others of the bondholders and persons interested. The principal object of the bill was to have declared valid a certain contract made between the city and the water company, and to compel the city to comply with its terms, in order that the moneys alleged to be due thereon from the city might be applied to the payment of the bonds held by the complainants and others, the said contract being included in the mortgage. There was also a prayer for a sale of all the property and privileges of the water company under the mortgage, and an alternative prayer that the said contract might be cancelled if the court should hold it to be void, and that then the city might be compelled to pay up a subscription it had made to the stock of the water company, or else that the stock might be cancelled. The circumstances of the case on which the bill was founded may be briefly stated as follows: The charter of the city of Memphis, among other things, conferred upon its corporate authorities the power of supplying the city with water for all purposes. But on the twenty-eighth of February, 1870, an act was passed chartering the Memphis Water Company, and giving to it the exclusive privilege of laying down water-pipes and extending aqueducts and conductors through all or any of the streets, lanes, and alleys of the city, and of supplying to the inhabitants water by public works. Under this charter the company commenced operations for laying pipes and erecting works without the acquiescence of the city authorities. The city undertook to carry out a counter scheme, which had been under consideration for several years. A litigation ensued, which resulted in June, 1871, in a judgment of the supreme court of Tennessee, confirming the water company's exclusive right, and enjoining the city from interfering therewith, the court holding in substance that the exclusive right given to the water company suspended that of the city for the period named in the former's charter. Thereupon, on the eighteenth of January, 1872, the city and the water company entered into a contract, whereby, among other things, the water company agreed to erect water-works in the city, including a certain number of street hydrants of a peculiar construction, which the city agreed to hire for the purpose of extinguishing fires, and to pay therefor a certain annual rent; and it was mutually agreed that the city should receive one-half of the company's capital stock, amounting to $100,000. Immediately after this contract was executed the water company took measures to raise money by an issue of bonds to the amount of $600,000. For this purpose they executed a deed of trust in the nature of a mortgage to F. S. Davis, T. R. Farnsworth of Memphis, and J. L. Worth of New York, whereby they conveyed all their franchises, lands, wells, pumps, machinery, pipes, and other property then held and thereafter to be acquired, and all the income which they might thereafter 'receive, acquire, or become entitled to, including all sums of money which the party of the first part may become entitled to receive from the city of Memphis under and by virtue of a contract made and entered into between the said city of Memphis and the said party of the first part hereto, on the eighteenth day of January, A. D. 1872.' This deed was declared to be given for the purpose of securing the payment of 600 bonds of $1,000 each, payable to bearer, with interest at 7 per cent. per annum semi-annually. In case default should be made in payment of principal or interest, power was given to the trustees to take possession of the property and books of the company, and to collect all moneys due to it, including all sums due or coming due from the city of Memphis under the said contract, and to apply the same to the payment of unpaid interest on the bonds; and, if two successive installments of interest should be unpaid, the principal to become due, and, at the request of a majority in interest of the bondholders, the trustees should take possession, given notice, and sell the entire property, for cash, and apply the same to the payment of principal and interest on the bonds. The bonds provided for by this mortgage were duly issued and disposed of, and the complainants represent themselves as holding nearly all of them; those supposed to hold the remainder being made defendants. It is alleged and not denied that on or prior to the first of April, 1873, the water-works were completed and in operation, and the hydrants stipulated for in the contract of January, 1872, were used by the city. But, the city refusing to pay the rent therefor, a suit was brought by the water company against the city to recover the first installment of rent due. After the pleadings were filed, the writ and declaration were amended by consent, so as to be in the name of the water company, to the use of Davis, Farnsworth, and Worth, trustees of the mortgage. The cause was tried in April, 1874, and a verdict was given and judgment rendered for the plaintiffs. The supreme court of Tennessee, on a writ of error, reversed this judgment in December, 1876, and awarded a new trial, the court holding that the contract between the city and the water company was ultra vires of the city and absolutely void. In the mean time, in May, 1875, while the writ of error was pending, at the request of the requisite number of bondholders, the trustees of the mortgage took possession of the property of the water company, and proceeded to advertise the same for sale. Thereupon one T. W. Yardley, a holder of some of the bonds, filed a bill in equity in the chancery court of Shelby county, Tennessee, alleging that the New York Guaranty & Indemnity Company had obtained the bonds held by it for an usurious and corrupt consideration, which made it inequitable for that company to hold the said bonds, or at least for the full amount thereof; and that said company was urging the trustees to make said sale, which would at that time be at a sacrifice of the property; and he prayed for an injunction to prevent the sale, and for an investigation of the true amount due, if anything, to said New York Guaranty & Indemnity Company. All the bondholders, as well as the water company itself, were made parties to the suit. A temporary injunction was granted. On the twenty-fifth of May, 1875, a decree was made, by consent of all parties, that the property should be exposed for sale by the trustees on 60 days' notice, whenever the court, in its discretion, should so order, on the demand of the requisite number of bondholders, and that the mutual rights of the parties to a distribution of the proceeds should be ascertained by the further litigation in the cause; the trustees in the mean time to keep possession of the property and account for all receipts and expenditures. An amendment to the bill was afterwards filed, which prayed an account to be taken of the amount justly due to all parties, and for a foreclosure and sale of the mortgaged premises. Answers and cross-bills were filed, nearly all the bondholders appearing to assert their respective interests. In January, 1876, the cause was removed to the circuit court of the United States, and further proceedings took place in that court. On the fifteenth of May, 1876, the trustees, at their own request, and with the assent of all parties, were by decree discharged from the custody of the water-works, and the president and secretary of the water company were placed in charge; but it was stated in the decree that the property was not thereby restored to the company itself, but to be operated in the interest of the bondholders, and at all times subject to the supervision and control of the court. In March, 1877, a few days after the filing of the bill in the present case, a decree was made dismissing Yardley's bill and the several cross-bills. An appeal was taken to this court, but was dismissed for want of prosecution. On the second of June, 1879, (after the final decree was made in the present case,) the circuit court, on the application of the New York Guaranty & Indemnity Company and others, holding a majority of the bonds, made a decree in the Yardley suit, in pursuance of the consent decrees of May 28, 1875, and May 15, 1876, ordering a sale, by a commissioner appointed for that purpose, of all the franchises, rights, privileges, and property conveyed by the deed of mortgage, and authorizing the commissioner to receive the bonds and coupons secured by the mortgage as cash in payment of the property, and foreclosing the equity of redemption. In answer to an application of the appellants here, it is now shown by the appellees that the said decree for sale was carried into effect in 1880, and the purchase money paid, and that in June of that year, pending this appeal, the circuit court made a decree confirming said sale. In the present case, the principal defense set up by the city of Memphis, by answer and demurrer, was the alleged illegality of the contract, as adjudged by the supreme court of Tennessee. It was also insisted that there was a complete and adequate remedy at law; that if there was any cause of action or complaint, it was vested in the water company and the trustees of the mortgage, all of whom reside in Tennessee; and that the complainants, if they have any claim, acquired it through the assignment of the water company, which, itself, could not maintain a suit in the United States court. The circuit court concurred in the view taken by the supreme court of the state, and held that the contract on the part of the city was ultra vires and void, and dismissed the bill by a final decree rendered May 27, 1879. From this decree the present appeal was taken. The main object of the bill was to enforce the performance of the contract made between the city of Memphis and the water company; to have it declared binding, and to compel the city to pay the rents due under it, in order that they might be applied in satisfaction of the bonds held by the complainants and others. There was added, it is true, a prayer for the foreclosure and sale of the mortgaged property, and the application of the proceeds to the payment of the debts received. But this latter relief was already provided for by the consent decrees entered in the Yardley suit, which, as we are now informed, have been carried into effect at the instance of the appellants themselves, pending this appeal. The important question to be considered is, whether the principal relief prayed for can be granted in this suit. The contract sought to be enforced was not made with the complainants; nor has it ever been assigned to them. It was made with the water company, and its interest therein was assigned to the trustees of the mortgage, as part of the security for the payment of the bonds held by the complainants. Whatever interest the complainants have therein they derive as beneficiaries under the mortgage, through the assignment which it contained. They stand in no better plight for the maintenance of the suit than the trustees would if they had brought it. There seems to be no reason, indeed, why the suit was not brought by the trustees. No allegation is made that they were even unwilling to bring it. The legal interest of the mortgage was in them, and they were the proper representatives of all the bondholders, and the most proper persons to protect the trust in their hands. Indeed, they did bring a suit to enforce the contract. The action at law brought in the name of the water company against the city for the recovery of the first installment of rent was prosecuted for the use of the trustees; and this was really the proper mode of proceeding. Had the judgment in that case been a final one, the questions raised in this cause would have been res judicata; but a new trial being ordered it failed to have this effect. Thereupon, shortly after the decision of the supreme court was rendered, the principal bondholders, without, so far as appears, making any effort to have that suit further prosecuted, brought this suit in the federal court in their own names as complainants, and seek in this indirect way to accomplish the same purpose which was attempted to be obtained by the direct proceeding in the state court. It is a manifest attempt to evade the decision of the case by that court, which had full and adequate jurisdiction of the subject. It was objected in limine, by the demurrer to the bill, that as the complainants claim under the assignment of the contract made to the trustees, the circuit court had no jurisdiction, because the water company, with which the contract was made, and which made the assignment, is a citizen of Tennessee. This objection is insisted on here, and would seem to be conclusive, if the citizenship of the parties were the only ground of jurisdiction of the circuit court. The act of March 3, 1875, declares that no circuit or district court shall have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made. This suit is founded on the contract between the city and the water company. The whole claim of the bondholders to any benefit therefrom depends upon the assignment thereof contained in the mortgage deed; and although the trustees of the mortgage are the real assignees, the bondholders, as cestui que trusts, claim under them, and stand on no higher plane, as regards the right to sue, than the trustees themselves. The complainants, however, insist that this suit is cognizable by the circuit court by reason of that court's having judicial possession and control of the mortgaged property in the Yardley suit. The bill and cross-bills in that suit, it has been seen, were dismissed; but the parties regarded the consent decrees entered therein as giving the court authority to keep the property under its control, and to cause it to be sold. Therefore, so far as relates to the water-works themselves, and all the property comprised in the mortgage which is susceptible of actual possession, the position of the appellants may be correct. But the claim against the city does not lie in possession, but in contract alone. The contract itself may be subject to sale as part of the mortgage assets; but the proceeds of the contract, the money alleged to be due from the city to the water company under it, has never been reduced to possession, and the city of Memphis denies its liability to pay it. In order to reduce to possession the money claimed to be due, and subject it to the control of the court, the ordinary mode of enforcing the contract must be resorted to. It may be that the circuit court had the power to direct such a proceeding to be had as ancillary to its administration of the mortgage fund; but it must be a proper proceeding, adapted to the nature of the demand. If a promissory note were included in the mortgage fund, and the parties liable upon it should refuse to pay it, the circuit court might probably order the trustees of the mortgage to bring an action on the note; but a bill in equity would hardly be considered a proper proceeding for enforcing its collection. The view we have taken with regard to the propriety of the proceeding in this case, for enforcing the contract against the city, renders it unnecessary to determine the question raised on the assignment of it by a citizen of Tennessee. Whether the contract is or is not a valid one, and, if valid, what are the obligations of the city under it, and the damages for the breach thereof, are pure questions of law, which the city cannot, under ordinary circumstances, be compelled to litigate with any other party than the water company or its legal assigns. If the parties having the legal interest refuse to sue, those having the beneficial interest will be authorized to use their names on giving them proper indemnity against costs. The city has a right to be confronted with those who have the legal interest in the contract, unless they absolutely refuse the use of their names, or special circumstances exist which would prevent or greatly embarrass the prosecution of the suit. It does not lose its right to a trial at law by any pledges or assignments which the water company may make of its interest in the contract. Such pledges or assignments may create equitable rights in regard to that interest, as between the water company and the assignees; but the contract, so far as the city is concerned, remains a matter of legal cognizance. If a merchant should pledge his bills receivable as security for a loan, any equitable rights which arise between him and his pledgees may be adjudged in equity; but the makers and acceptors of the bills must be sued thereon at law. And so, here, while the equities between the water company as mortgagor and the mortgagees, or those claiming under them, (such as the right of redemption, etc.,) may be determined by a court of equity, the legal demand against the city on the contract is cognizable at law, and should be prosecuted in the ordinary courts of law, as was done in the action brought in the name of the water company against the city. Every question arising on the contract in this suit is determinable in an action at law, and was determined in the action referred to. Recurring for a moment to the leading facts, how does the case really stand? The trustees of the mortgage, on default of the water company in payment of interest, took possession of its works, and carried them on. In performing this duty they found, or supposed they had found, that certain rents had accrued and were accruing from the city for the use of the hydrants, under the contract in question, which rents the city refused to pay. To establish the contract and recover these rents, their remedy was clear and adequate by an action at law in the name of the water company. They brought such an action and failed by the adverse decision of the supreme court of Tennessee. Then the bondholders, dissatisfied with this result, brought this suit in equity in the federal court for the purpose of raising the same questions anew. It is difficult to see how they acquired any right to transfer the controversy from a court of law to a court of equity. The fact that they have only a beneficial interest is not of itself sufficient. Whether the legal interest in the contract remained in the water company or became vested in the trustees, an action at law could have been brought in the name of the party having it. There is no allegation in the bill that either of these parties were applied to, or that they refused to allow such an action to be brought in their names. We have lately decided, after full consideration of the authorities, in the case of Hayward v. Andrews, 5 Morr. Trans. 629, [S. C. 1 SUP. CT. REP. 544,] that an assignee of a chose in action on which a complete and adequate remedy exists at law, cannot, merely because as such assignee his interest is an inequitable one, bring a suit in equity for the recovery of the demand. He must bring an action at law in the name of the assignor to his own use. This is true of all legal demands standing in the name of the trustee, and held for the benefit of cestuis que trust. Besides the authorities cited in Hayward v. Andrews, reference may be made to Mitf. Pl. 123, 125; Willis, Eq. Pl. 435, note g; Adair v. Winchester, 7 Gill & J. 114; Moseley v. Boush, 4 Rand. 392; Doggett v. Hart, 5 Fla. 215; Smiley v. Bell, Martin & Y. 378; and Eng. & Am. Notes to Ryall v. Bolles, 2 White & T. Lead. Cas. Eq. 1567, 1670, (Ed. 1877.) In view of the early enactment by congress in the sixteenth section of the judiciary act, (Rev. St. § 723,) declaring 'that suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law,' the rule laid down in Hayward v. Andrews is entitled to special consideration from the courts of the United States. This enactment certainly means something; and, if only declaratory of what was always the law, it must, at least, have been intended to emphasize the rule, and to impress it upon the attention of the courts. We think that the present case clearly falls within the rule. The bill alleges no special circumstances which can properly take it out of its operation. The fact that there are many beneficiaries entitled to a distribution of the fund is not sufficient for that purpose. All the property covered by the mortgage deed constitutes one fund, and is to be brought together and administered as such by first discharging the expenses of the trust, and distributing the residue among the bondholders pro rata. There is no such division and separation of interests into distinct parcels as existed in the case of Field v. Mayor of New York, reported in 6 N. Y. 179. The whole beneficiary interest is a unit, and is represented by the trustees of the mortgage; and the case presents no difficulty or embarrassment in the way of an action at law. We think, therefore, that the bill could have been properly dismissed on this ground alone; and this renders it unnecessary for us to consider the other questions in the case. The decree of the circuit court is affirmed.

108.US.109

The decision of this court, in Schmidt v. Badger, 107 U. S. 85, that, under the statutory provisions in question in this case, the proper duty on the importation of glass bottles containing beer, was a duty of 80oper cent. ad valorem on the bottles, in addition to a specific duty of 85 cents a gallon on the beer, confirmed and applied to this case.

This is a suit to recover back duties exacted by the plaintiff in error, as collector of the port of New York, on glass bottles imported in March, 1879, from London. The bottles contained beer, and the defendant exacted a specific duty of 35 cents a gallon on the beer and also a duty of 30 per cent. ad valorem on the bottles. The bottles were the ordinary ale bottles of commerce. The circuit court directed a verdict for the plaintiffs, and they had a judgment, to review which the collector brought this writ of error. The question involved is the same, and arose under the same statutory provisions, as in the case of Schmidt v. Badger, decided by this court at this term, [1 SUP. CT. REP. 530.] It was there held that such duty on the bottles, in addition to such duty on the beer and ale contained in them, was a lawful duty. That decision governs the present case, and the judgment of the circuit court is reversed, and the case is remanded to that court, with directions to grant a new trial.

107.US.636

1. Reissued letters-patent No. 6673, granted to Mrs. P. Duff, E. A. Kitzmiller, and R. P. Duff, Oct. 5, 1875, for an "improvement in wash-boards," on the surrender of original letters-patent No. 111,585, granted to Westly Todd, as inventor, Feb. 7, 1871, are not infringed by a wash-board constructed in accordance with the description contained in letters-patent No. 171,568, granted to Aaron J.H ull, Dec. 28, 1875. 2. In view of prior inventions, the claims of the letters-patent granted to Todd must be limited to the form which he shows and describes, namely, projections bounded by crossing horizontal and vertical grooves. They do not cover diamond-shaped projections bounded by crossing diagonal grooves. . In the field of wash-boards made of sheet metal, with the surface broken into protuberances formed of the body of the metal so as to make a rasping surface, and to strengthen the metal by its shape, and to provide channels for the water to run off, Todd was not a pioneer. He merely devised a new form to accomplish those results; and his letters-patent do not cover a form which is a substantial departure from it.

This is a suit in equity brought for the alleged infringement of reissued letters patent No. 6,673, granted to Mrs. P. Duff, E. A. Kitzmiller, and R. P. Duff, October 5, 1875, for an 'improvement in wash-boards,' on the surrender of the original letters patent No. 111,585, granted to Westly Tood, as inventor, February 7, 1871. The specification of the reissue says: 'The nature of my invention consists in the construction of a sheet-metal wash-board with a rubbing face longitudinally and transversely corrugated or ribbed, whereby such rubbing surface shall be made up of a series of projections, bounded by a series of horizontal, vertical, and angularly-shaped grooves. The rubbing face somewhat resembles the face of a rasp or file in general appearance, though the projections are less sharp and angular.' 'In the accompanying drawing A represents the the frame of the wash-board, and is of ordinary construction. The rubbing surface is formed of sheet-zine or other suitable sheet-metal, corrugated or provided with a series of raised portions, B, alternating, along the line of the corrugation or rib which forms them, with depressions or unraised portions, a, the corrugations and depressions extending in either direction across the sheet, so that a series of horizontal and vertical and also angularly-shaped grooves are formed between the projections. Each projection, B, represents four inclined surfaces, sloping from the apex of the projection into the grooves which surround and bound it. The grooves between the corrugations are also broken or interrupted at intervals by small projections or raised portions, C, each of which presents two lateral surfaces. In a wash-board thus longitudinally and transversely ribbed or corrugated, the inequalities of the rubbing surfaces are such that the desired effect is more readily and effectively attained, whereby the labor of washing is greatly diminished, and is accomplished with ease and facility, and with less than the usual wear on the clothes.' There are three claims in the patent, as follows: '(1) A sheet-metal wash-board having a series of raised projections, B, each bounded by longitudinal and transverse grooves or depressions, substantially as set forth. (2) In a sheet-metal wash-board the projections, B, each bounded by grooves or depressions, in combination with raised projections, C, in the bottoms of the interlying grooves, substantially as set forth. (3) As a new article of manufacture, a sheet-metal wash-board, having a rubbing face both longitudinally and transversely ribbed or corrugated, substantially as set forth.' The wash-board of the defendant is made in accordance with the description contained in letters patent No. 171,568, granted December 28, 1875, to Aaron J. Hull. That description shows a sheet-metal wash-board provided with diamond-shaped projections, each bounded by diagonal grooves or depressions. The metal-plate is described as being crimped to form oblong diamond-shaped projections, having the largest diameter running transversely across the board, each projection being bounded by a diagonal groove or depression, the upper corner of each diamond, where the grooves cross each other, being raised higher than any other part of the same, and the corresponding lower corner being the lowest part of the diamond. The claim of the patent is this: 'A wash-board of sheet-metal, formed with a series of raised diamond-shaped projections, B, and a series of narrow diagonal grooves, b, between the projections, which cross each other, substantially as set forth.' The case was heard on pleadings and proofs in the circuit court. That court entered a decree declaring that the equities were with the defendant and dismissing the bill. It is entirely clear that the specification of the Todd patent decribes the grooves in the metal as being horizontal and vertical, and gives no other meaning to the words 'transverse' and 'longitudinal.' It describes the transverse and longitudinal corrugating or ribbing as producing projections which are bounded by horizontal and vertical grooves. From the evidence, Todd took the old zinc wash-board corrugated into horizontal grooves, and corrugated or ribbed it again, by vertical grooves crossing the horizontal grooves at right angles. Nothing is said in the specification as to the method of producing the corrugating or ribbing, nor does the patent claim any process or machinery. In the Galusha and Safford patent of December, 1857, there is shown a wash-board formed of corrugated sheet-metal. The specification states that the corrugations are formed of a series of elevations and depressions, the elevations and depressions being in parallel rows, and in alternate positions with respect to each other; that the corrugations are oblong, their ends and sides inclined, and their edges somewhat rounded; that each elevation forms a figure approximating to a semi-cylinder pointed at each end, the ends of the elevations in one row overlapping the ends of those in the adjoining rows; that thus channels are formed for the escape of water downward; and that the form of the corrugations stiffens the board, as compared with the old form of parallel flutes extending entirely across the plate. In the Crihfield patent of October, 1870, there is shown a zinc wash-board, composed of a series of irregularly-placed, diamond-shaped raised pieces, arranged in rows crosswise of the board from top to bottom, each alternate row being composed of more elevations than the adjacent row, the elevations in one row being opposite the spaces between the elevations in the two adjacent rows, and a series of oblique channels being thus formed up and down the board from either side. The specification states that the boards can be stamped out by dye plates. Nothing is shown is evidence to defeat the novelty of the claims of the Todd reissue, but, in view of the structures shown in the patents of Galusha and Safford and of Crihfield, the claims of the Todd reissue must be so limited as not to extend to a structure such as is described in the Hull patent. We do not perceive that in the wash-boards made by the defendant there is any substantial departure from the description in the Hull patent. The case is one where, in view of the state of the art, the invention must be restricted to the form shown and described by the patentee. In the field of wash-boards, made of sheet-metal, with the surface broken into protuberances formed of the body of the metal, so as to make a rasping surface and to strengthen the metal by its form and to provide channels for the water to run off, Todd was not a pioneer. He merely devised a new form to accomplish these results. Ry. Co. v. Sayles, 97 U. S. 554. The defendant adopts another form. Under such circumstances the Todd patent cannot be extended so as to embrace the defendant's form. The latter is not a mere colorable departure from the form of Todd, but is a substantial departure. These views are in accordance with those heretofore announced by this court in Merrill v. Yeomans, 94 U. S. 568; Keystone Bridge Co. v. Phoenix Iron Co. 95 U. S. 274; and Burns v. Meyer, 100 U. S. 671. The decree of the circuit court is affirmed.

242.US.394

The rule that the personal estate of an intestate has its situs at his domicile, and is subject to be administered and distributed according to the domiciliary laws, is merely a rule of the common law, which the States may adopt, modify or reject, as their policies dictate. Each State has the power to control and administer the personal assets qf an intestate found within her borders, such as debts due from a local corporation or the shares of its stock, to satisfy the rights of her own citizens in the distribution of such assets. No State, therefore, has the power, by probate or other proceedings in rem, to fix the status as to .administration, pnd determine the course of devolution, of personal property of an intestate situate beyond her borders and within the domain of another State. Under the Fourteenth Amendment, the courts of one State are without power to determine by an action in personam the domicile of a decedent or the devolution of his personal assets situate in another State, as against persons, residents of the latter, who do not appear in the proceedings and are notified by publication only. The full faith and credit clause of the Constitution and the act of Congress passed pursuant to it do not entitle a judgment in personam to extra-territorial effect, if it be shown that it was rendered without jurisdiction over the person sought to be bound. 162 Kentucky, 683, affirmed.

The Federal question presented in this record is whether the court of appeals of Kentucky gave such faith and credit to certain judicial proceedings of the state of Tennessee as were required by art. 4, § 1, of the Constitution, and the act of Congress passed in pursuance thereof (Act of May 26, 1790, chap. 11, 1 Stat. at L. 122, Rev. Stat. § 905, Comp. Stat. 1913, § 1519). The facts are as follows: Charles Baker died in September, 1912, the owner of certain real and personal property in Hardin county, Tennessee, and of 270 shares of stock of Baker, Eccles, & Company, a Kentucky corporation, of the par value of $27,000, and a claim of several thousand dollars against that corporation for surplus profits. He left a widow, Josie C. Baker, now plaintiff in error, and a mother, Augusta H. Baker, one of the defendants in error. He appears to have left no children or descendants, nor any considerable indebtedness, and the personal estate, if distributable according to the laws of Tennessee, would go entirely to the widow; if distributable according to the laws of Kentucky, it would go one half to the widow, the other half to the mother. The place of his domicil, admittedly determinative of the law of distribution, was in controversy. Shortly after his death the widow applied to the county court of Hardin county, Tennessed, for letters of administration. The proceedings were ex parte, and her application was granted, the order of the court appointing her administratrix reciting that at the time of his death the residence of Charles Baker was in that county. Afterwards, and in December, 1912, the widow presented to the same court a settlement of her accounts as administratrix, and an order was made reciting that it appeared from proof that Charles Baker died intestate, and at the time of his death was a resident of Hardin county, Tennessee, and that he left no children or descendants of such surviving, but left surviving his widow, the said Josie C. Baker, and under the laws of Tennessed she, as widow, was entitled to all of the surplus personal property; whereupon it was ordered that she, as administratrix, transfer and deliver to hereself, as the widow of the deceased, all of the personal estate in her possession, including the stock in the Kentucky corporation, the certificates for which she held. Subsequently, and on December 28, 1912, the widow, individually and as administratrix, filed in the chancery court of Hardin county, Tennessee, her bill of complanint against Mrs. Augusta H. Baker, the mother, as a nonresident of Tennessee and a resident of the state to Kentucky, and also against several persons who were residents of Tennessee, setting up her appointment as administratrix, averring that her husband died intestate, a resident of and domiciled in Tennessee, leaving his widow as his sole heir and distributee, and his mother and a brother his only heirs at law. The bill further set up the widow's ownership of the stock in Baker, Eccles, & Company, and averred that the mother was asserting an interest in one half of the personal estate left by the intestate, upon the theory that he died a resident of Kentucky and that, under the laws of that state, the mother was entitled to one-half of his surplus personal estate. The prayer was (inter alia) that the mother be brought before the court in the manner provided for nonresidents and be required to assert whatever claim she might have to the estate left by the deceased; and that it might be adjudged that Charles Baker died a resident of Tennessee, and that complainant, as his widow, was the sole distributee and entitled to all of his personal estate. Upon the filing of the bill an order of publication was made, citing Augusta H. Baker as a nonresident to make defense upon a day named, and, she having failed to appear, the bill was taken for confessed against her, and eventually a decree was made 'that the said Charles Baker at the time of his death was a citizen of and had his domicil at Savannah, Tennessee, and that the complainant, as his widow, is his sole distributee, and as such entitled to all of the personal estate of the said Charles Baker, after payment of such debts as were owed by him at the time of his death,' and also that the title to the stock of Baker, Eccles, & Company was in complainant, and that she was entitled to have a new certificate or certificates in her own name issued by the corporation in lieu of the certificates issued to said Charles Baker, and was entitled to receive from the corporation the amount of the accumulated profits and surplus and other amounts due from it to the decedent. Meanwhile, the county court of McCracken county, Kentucky, had granted letters of administration to Mrs. Augusta H. Baker, the mother, and she, as such administratrix, filed a petition in the McCracken circuit court for a settlement of the estate, making the widow and Baker, Eccles, & Company defendants. The widow did not appear, and a judgment was rendered that Charles Baker died a resident of McCracken county, Kentucky, and that under the law of that state, the mother and the widow were each entitled to one half of the surplus of the personal estate. The corporation was directed to cancel the 270 shares of stock issued to decedent, and reissue one half of these to the widow, the other half to the mother. This judgment has only historical importance, since the Kentucky court of appeals in the present case held it invalid as against the widow because of failure to comply with the local law respecting notice to her. In June, 1913, the widow, individually and as administratrix of Charles Baker, began a suit in equity in the McCracken county circuit court, which resulted in the judgment now under review. Baker, Eccles, & Company was made defendant. The widow's petition, after setting up the orders and judgments of the Tennessee courts and alleging her sole ownership of the personal estate of the deceased by virtue thereof, prayed that the corporation be required to transfer to her individually the 270 shares of stock adjudged to her by the Tennessee chancery decree, and also prayed judgment for $11,429.17, the alleged indebtedness due from the corporation to her husband at the time of his death. Baker, Eccles, & Company filed an answer putting in issue all the averments of the petition. Mrs. Augusta H. Baker, the mother, came into the suit by an intervening petition, in which she averred that Charles Baker died a resident of the state of Kentucky, and that, under the laws of that state, she was entitled to one half of the shares of stock and of the debt sued for, invoking the McCracken circuit court judgment as an adjudication to that effect. She further put in issue the validity of the orders and judgments in both the Tennessee courts, averring that so far as they determined that Charles Baker died a resident of that state, and that his widow was entitled to the whole of his personalty after payment of his debts, they were void, because neither of the Tennessee courts had jurisdiction to make such orders or judgments. The pleadings having been made up, evidence was taken on the issue of fact as to the domicil of Charles Baker at the time of his death. Upon this evidence, the records of the judicial proceedings above mentioned, and a showing of the pertinent Tennessee law, the case was submitted for hearing, and it was adjudged that the widow's petition be dismissed. The widow appealed to the Kentucky court of appeals, and that court, having determined the judgment of the McCracken circuit court in the mother's administration suit to be invalid as against the widow, held that the judgments of both Tennessee courts were invalid as against the mother because entered without process of law as against her; and then, passing upon the question of fact as to the domicil of Charles Baker, found upon the evidence that he was domiciled in the state of Kentucky and his personalty was distributable according to the laws of that state, and affirmed the judgment, with a modification directing the lower court to enter a judgment that Charles Baker died a resident of Kentucky, that his mother and his widow were each entitled to one half of his personal estate situate in Kentucky at the time of his death, after the payment of his debts, that Baker, Eccles, & Company should cancel all certificates of stock issued to Charles Baker, and reissue one half of these to the widow and the other half to the mother, and that the lower court embody in the judgment such other matters as would, after the payment of debts, distribute equally between the widow and the mother all other personal estate situate in Kentucky of which Charles Baker died possessed. 162 Ky. 683, L.R.A. 1917C, 171, 173 S. W. 109. To review this judgment upon the Federal question, the widow brings the case here upon writ of error. No question is made by defendants in error but that the Tennessee courts had general jurisdiction over the subject matter, nor that the proceedings were in conformity with the Tennessee statutes respecting practice. The sole question is whether they were entitled, under the Constitution of the United States and the act of Congress, to recognition in the courts of Kentucky as adjudicating adversely the mother's asserted right to share as distributee in the personal property situate in Kentucky, or as conclusively determining the fact of the domicil of the decedent as affecting that right, in view of the failure of the Tennessee courts to acquire jurisdiction over her person or over the corporation, Baker, Eccles, & Company. It is the fundamental contention of plaintiff in error that the personal estate of an intestate decedent is a legal unit, having its situs at the owner's domicil; that the title to the whole of it, wherever situate, is vested in the duly qualified domiciliary administrator, and not in the distributees, and that its distribution is governed by the law of the domicil of the deceased owner. Wilkins v. Ellett, 9 Wall. 740, 19 L. ed. 586, 108 U. S. 256, 27 L. ed. 718, 2 Sup. Ct. Rep. 641. Conceding that such is the general rule of law, it is so not because of any provision of the Federal Constitution, but only because the several states, or most of them, have adopted it from the common law into their respective systems. And the question remains, How is the fact of decedent's domicil to be judicially ascertained as a step in determining what law is to govern the distribution? Obviously, if fundamental principles of justice are to be observed, the ascertainment must be according to due process of law; that is, either by a proceeding in rem in a court having coutrol of the estate, or by a proceeding in personam after service of process upon the parties to be affected by the judgment. We have no concern with the effect of the Tennessee judgments upon the distribution of so much of decedent's personalty as was situate within that state. The present action affects only the ownership of shares of stock in a Kentucky corporation having no situs outside of its own state, so far as appears, and a claim of indebtedness against the same corporation. For the purpose of founding administration, it is commonly held that simple contract debts are assets at the domicil of the debtor, even where a bill of exchange or promissory note has been given as evidence. Wyman v. Halstead (Wyman v. United States) 109 U. S. 654, 656, 27 L. ed. 1068, 1069, 3 Sup. Ct. Rep. 417. The state of the debtor's domicil may impose a succession tax. Blackstone v. Miller, 188 U. S. 189, 205, 47 L. ed. 439, 444, 23 Sup. Ct. Rep. 277. It is equally clear that the state which has created a corporation has such control over the transfer of its shares of stock that it may administer upon the shares of a deceased owner and tax the succession. See Re Bronson, 150 N. Y. 1, 9, 34 L.R.A. 238, 55 Am. St. Rep. 632, 44 N. E. 707; Re Fitch, 160 N. Y. 87, 90, 54 N. E. 701; Greves v. Shaw, 173 Mass. 205, 208, 53 N. E. 372; Kingsbury v. Chapin, 196 Mass. 533, 535, 82 N. E. 700, 13 Ann. Cas. 738; Dixon v. Russell, 79 N. J. L. 490, 492, 76 Atl. 982; Hopper v. Edwards, 88 N. J. L. 471, 96 Atl. 667; People v. Griffith, 245 Ill. 532, 92 N. E. 313. The rule generally adopted throughout the states is that an administrator appointed in one state has no power virtute officii over property in another. No state need allow property of a decedent to be taken without its borders until debts due to its own citizens have been satisfied; and there is nothing in the Constitution of the United States aside from the full faith and credit clause to prevent a state from giving a like protection to its own citizens or residents who are interested in the surplus after payments of debts. All of which goes to show, what plaintiff in error in effect anknowledged when she brought her present action in a Kentucky court, that the Tennessee judgments had no effect in rem upon the Kentucky assets now in controversy. She invokes the aid of those judgments as judgments in personam. But it is now too well settled to be open to further dispute that the 'full faith and credit' clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound. This rule became established long before the adoption of the 14th Amendment, as a result of applying fundamental principles of justice and the rules of international law as they existed among the states at the inception of the government. Notwithstanding that Mills v. Duryee (1813) 7 Cranch, 481, 484, 3 L. ed. 411, 413,——where, as the opinion shows, the defendant had full notice of the suit, was arrested, and gave bail,—was by some courts interpreted as holding that, irrespective of such notice, the act of Congress required a judgment under all circumstances to receive the same faith and credit in every other state that it had in the state of its origin (Field v. Gibbs (1815) Pet. C. C. 155, 158, Fed. Cas. No. 4,766; Com. v. Green (1822) 17 Mass. 515, 546), the view soon came to prevail in the state courts that the case was not authority for so broad a proposition, and that whenever a judgment of a state court was produced as evidence, the jurisdiction of the court rendering it was open to inquiry; and if it appeared that the court had no jurisdiction, the judgment was entitled to no faith or credit.1 Mr. Justice Story, who wrote the opinion in Mills v. Duryee, in his treatise on the Conflict of the Laws, published in 1834 (§ 609), declared that the 'full faith and credit' clause and the act of Congress did not prevent an inquiry into the jurisdiction of the court to pronounce the judgment, and this view was adopted and made the basis of decision by this court in D'Arcy v. Ketchum (1850) 11 How. 165, 13 L. ed. 648, which was followed by Thompson v. Whitman, 18 Wall. 457, 459, 21 L. ed. 897, with a review of many cases. During the same period, however, it occasionally was intimated, if not held by some of the state courts, that a personal judgment, effective within the territory of the state, could be rendered against a nonresident defendant who did not appear and submit himself to the jurisdiction, provided notice of the suit had been served upon him in the state of his residence, or had been published in the state within which the court was situate, pursuant to the provisions of a local statute. See Smith v. Colloty, 69 N. J. L. 365, 371, 55 Atl. 805. As was said by Mr. Justice Field, speaking for this court in Pennoyer v. Neff, 95 U. S. 714, 732, 24 L. ed. 565, 572, it is difficult to see how such a judgment could legitimately have force even within the state. But until the adoption of the 14th Amendment (1868) this remained a question of state law; the effect of the 'due process' clause of that amendment being, as was held in the case just mentioned, to establish it as the law for all the states that a judgment rendered against a nonresident who had neither been served with process nor appeared in the suit was devoid of validity within as well as without the territory of the state whose court had rendered it, and to make the assertion of its invalidity a matter of Federal right. The fundamental requisite of due process of law in judicial proceedings is the opportunity to be heard. Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 236, 44 L. ed. 747, 750, 20 Sup. Ct. Rep. 620; Simon v. Craft, 182 U. S. 427, 436, 45 L. ed. 1165, 1170, 21 Sup. Ct. Rep. 836; Grannis v. Ordean, 234 U. S. 385, 394, 58 L. ed. 1363, 1368, 34 Sup. Ct. Rep. 779. To hold one bound by the judgment who has not had such opportunity is contrary to the first principles of justice. And to assume that a party resident beyond the confines of a state is required to come within its borders and submit his personal controversy to its tribunals upon receiving notice of the suit at the place of his residence is a futile attempt to extend the authority and control of a state beyond its own territory. So far as the case for plaintiff in error depends upon the adjudication of domicil by the county court of Hardin county, Tennessee, for the mere purpose of appointing an administratrix, it is controlled by Thormann v. Frame, 176 U. S. 350, 44 L. ed. 500, 20 Sup. Ct. Rep. 446, and Overby v. Gordon, 177 U. S. 214, 227, 44 L. ed. 741, 746, 20 Sup. Ct. Rep. 603. But, it is pointed out, in this case the county court went beyond the bare appointment of an administratrix, and proceeded to a settlement and distribution of the estate. Moreover, plaintiff in error relies not merely upon this judgment, but upon the decree in the chancery court of the same county, which in form specifically determined her exclusive right to the Kentucky personalty. It results, however, from what we have already said, that this right could not be conclusively established by any Tennessee court as against a resident of Kentucky who was not served with process and did not appear therein, and that the Kentucky courts did not go counter to the Federal Constitution and the act of Congress in refusing to give faith and credit to the Tennessee judgments. In many forms, and with much emphasis, the plaintiff in error preses the argument ab inconvenienti. Starting from the proposition that the entire personalty of an intestate decedent, wherever in fact located, is a unit, having its legal situs at the owner's domicil, and that its distribution ought to be in accordance with the law of that domicil, it is argued: How is it possible to judicially determine that domicil under the theory of the Kentucky court of appeals in the case of an intestate entitled to personalty in several states having different laws of distribution, and with parties claiming to be distributees residing in different jurisdictions? Assuming a lawful grant of administration in each state wherein part of the personalty is located and some of the possible distributees reside, how, it is asked, is any one of these administrators, or any one of the claimants of a share in the whole estate, to have the place of the intestate's domicil settled authoritatively and the lawful distributees ascertained? The answer is clear: Unless all possible distributees can be brought within the jurisdiction of a single court having authority to pass upon the subject matter, either by service of process or by their voluntary appearance, it must in many cases be impossible to have a single controlling decision upon the question. In some cases, the ideal distribution of the entire personal estate as a unit may thus be interfered with; but whatever inconvenience may result is a necessary incident of the operation of the fundamental rule that a court of justice may not determine the personal rights of parties without giving them an opportunity to be heard. Judgment affirmed.

246.US.227

Under § 7 of the At of May 27, 1902, c. 888, 32 Stat. 275, an Indian allotment held under trust patent and subject to the restrictions on alienation imposed by the Act of March 2, 1889, § 11, c. 405, 25 Stat. 888, may, upon the death of the allottee, be conveyed by his heirs with the approval of the Secretary of the Interior, and the approved deed passes the full title. Where such a conveyance was made in 1908, and the Secretary approved it in 1909, held, that there was no law then in force making an adjudication of heirship, either by a federal court or by the Secretary, a condition precedent to the validity of the conveyance. McKay v. Kalylon, 204 U. S. 458, distinguished. Upon error to a state court in a case where a vendee sued to recover back earnest money paid his vendor, upon the ground that the title tendered by the latter was not merchantable, and where the vendor proved a conveyance of the land 'by certain heirs of the Indian allottee thereof, which recited that they were the only heirs and was approved by the Secretary of the Interior, held, that whether the burden was upon the plaintiff to establish that there were other heirs, and whether the suggestion that there may have been such rendered the title unmerchantable, were questions of state law not reviewable by this court. Whether the mere approval of such conveyance by the Secretary would operate to convey a good title if it had appeared that the deed was executed by a part of the heirs only-not decided. 36 S. Dak. 92, affirmed.

Egan agreed to buy of McDonald a parcel of land in South Dakota and paid $1,000 to bind the bargain. McDonald agreed to furnish a merchantable title. After examining the abstract, Egan asserted that the title was not merchantable, demanded back his money, and, upon refusal, brought an action in a state court to recover it. Upon substantially undisputed facts judgment was entered for defendant and was affirmed on appeal by the Supreme Court of South Dakota. 36 S. D. 92, 153 N. W. 915. The case comes here on writ of error under section 237 of the Judicial Code (Act March 3, 1911, c. 321, 36 Stat. 1156 [Comp. St. 1916, § 1214]). McDonald's title was this: (1) A 25-year trust patent dated December 12, 1895, for an Indian allotment issued to Weasel, under section 11 of Act of Congress March 2, 1889, c. 405 (25 Stat. 888, 891). (2) Deed to R. J. Huston dated October 9, 1908, from Plays and two others therein described as 'sole and only heirs of Weasel, deceased, a Crow Creek Sioux Indian,' approved by the Secretary of the Interior, March 2, 1909, and thereafter duly recorded in the Department of the Interior and the Registry of Deeds. (3) A final decree of distribution of the estate of Weasel in the county court making distribution of the land to Plays and two others as only heirs. (4) Deed from Huston to McDonald, dated November 3, 1910. (5) A decree of the state circuit court entered in 1912 in a suit brought by McDonald to quiet title and declaring him to be the owner in fee of the land. Egan contends that this title was not merchantable, both because there was no power in the heirs of Weasel to alienate the property and because there had been no adjedication in any federal court that the three persons purporting to convey to Huston were the only heirs of Weasel. First. As to the power of Weasel's heirs to convey: The trust patent was issued under section 11 of the Act of Congress of March 2, 1889. Under the provisions of that statute and the terms of the trust patent, the heirs, as well as Weasel, were without power to convey title before the expiration of the 25 years. But, by section 7 of the Act of Congress May 27, 1902 (32 Stat. 275, 888 [Comp. St. 1916, § 4223]), adult heirs were given power to convey with the approval of the Secretary of the Interior; and it is declared that 'such conveyances * * * when so approved shall convey a full title to the purchaser, the same as if a final patent without restriction upon the dlienation had been issued to the allottee.' Congress had, of course, power to remove the restrictions originally imposed upon alienation by heirs. Williams v. johnson, 239 U. S. 414, 420, 36 Sup. Ct. 150, 0 L. Ed. 358. Second. As to the lack of federal adjudication: Neither in 1908 when the deed to Huston was executed, nor in 1909 when it was approved by the Secretary of the Interior, was there any provision of law that heirs of an Indian allottee under a trust patent could make a valid conveyance only if some federal court should first have established that they were the heirs. Nor was there then a provision, like that prescribed by Act of June 25, 1910, c. 431 (36 Stat. 855 [Comp. St. 1916, § 4226]), that the Secretary of the Interior shall determine in such case who the legal heirs are. Hallowell v. Commons, 239 U. S. 506, 36 Sup. Ct. 202, 60 L. Ed. 409. Plaintiff relies upon McKay v. Kalyton, 204 U. S. 458, 468, 27 Sup. Ct. 346, 51 L. Ed. 566; but the case does not decide that adjudication of heirship in a federal court is a condition precedent to a valid conveyance by heirs. It decides merely that the Act of August 15, 1894, c. 290 (28 Stat. 286), which gave to Indians, who claimed to be entitled to an allotment the right to litigate their claim in a federal court, did not confer the right to litigate in state courts. Third. The case at bar is not a suit to establish who are the heirs of a deceased Indian allottee, nor a suit to establish the right to an allotment, nor a suit to quiet title. It is an action at law upon an implied promise to return the earnest money, if the vendor fails to furnish Egan a merchantable title. It was admitted that the persons who joined in the deed to Huston were heirs of Weasel and that they were adults. The state court held that, McDonald having shown a deed to Huston approved by the Secretary of the Interior and executed by three persons who declared themselves to be the only heirs, the burden was upon the plaintiff to establish the fact, if it was such, that there were other heirs; and that the mere suggestion in argument that there may have been some additional heirs does not cast such a suspicion upon the title as to render it unmerchantable. This is a matter of state law with which we have no concern. Nor have we occasion to consider whether, as held in Daugherty v. McFarland (S. D.) 166 N. W. 143, decided January 18, 1918, the mere approval by the Secretary of the Interior would have operated to convey to the grantee a good title, even if it had appeared that the deed was executed by a part of the heirs only. The decision of the Supreme Court of South Dakota is Affirmed.

242.US.559

The South Dakota "Blue Sky Law," Laws of 1915, c. 275, is the sange in principle as the laws of Ohio and Michigan involved in Hall v. Geiger-Jones Co., ante, 539, and Merrick v. Halsey & Co., post, 568, and is sustained over constitutional objections, for the reasons assigned in those cases, as applied to a Colorado corporation seeking to raise capital by sales of its own shares, and to individuals dealing in such shares. When a statute regulating complainant's business is alleged to be unconstitutional and its effect, if the business be continued in disregard of it, will be to visit him with repeated criminal prosecutions involving heavy fines and imprisonment, the remedy at law is not adequate. A suit to enjoin state officials from instituting criminal proceedings in enforcement of such a statute is not a suit against the State. Reversed. For decree below see 230 Fed. Rep. 236, note.

This case was argued and submitted with Nos. 438, 439, and 440, just decided [242 U. S. 539, 61 L. ed. 480, 37 Sup. Ct. Rep. 217], and with No. 413 [242 U. S. 568, 61 L. 498, 37 Sup. Ct. Rep. 227], which concerns a statute of Michigan of like kind, the opinion in which is to follow. It involves the same general questions as those cases, and is presented to review a decree of the district court enjoining appellants from enforcing a statute of the state of South Dakota relating to the sale of securities. The act ([Sess. Laws 1915, chap. 275] § 23) makes violations of its provisions a misdemeanor, and criminal prosecutions under the act were the particular actions of the officers of the state that the appellees prayed to be enjoined. After a consideration of the pleadings and argument the court, consisting of three judges, expressed the view that the statute violated the Constitution of the United States, and cited in confirmation Alabama & N. O. Transp. Co. v. Doyle, 210 Fed. 173; William R. Compton Co. v. Allen, 216 Fed. 537; and Bracey v. Darst, 218 Fed. 482. The court decreed that the appellants be enjoined from instituting and prosecuting any actions, civil or criminal, against complainants (appellees) under the statute for alleged violations thereof, and from taking any proceedings for its enforcement except such as might be deemed proper by them in the criminal actions already pending. The Sioux Falls Stock Yards Company is a Colorado corporation, having its principal place of business at the city of Denver, and the Morleys are residents and citizens of Iowa. The Stock Yards Company was at the times mentioned in the bill engaged in building and constructing a stock yard in Sioux Falls, South Dakota, and in selling a certain amount of its capital stock for raising sufficient capital for that purpose. The Morleys, at such time, were engaged in the buying and selling of stock and especially in selling the stock of the Stock Yards Company to various farmers and other purchasers, such sales being necessary to complete the construction of the stock yard, and also necessary to enable the Morleys to earn a livelihood. Six informations were filed against appellees at the instigation of appellants for violations of the statute, and it is alleged that appellees will be prosecuted immediately under such informations and will be further prosecuted. The statute, it is alleged, is an infraction of the 14th Amendment of the Constitution of the United States, and imposes a burden upon and practically amounts to a prohibition of interstate commerce, and hence offends the commerce clause of the Constitution of the United States; and 'that it attempts to vest in and delegate to the State Securities Commission judicial powers unauthorized by law.' Against the bill appellants urge, besides asserting the validity of the statute, three defenses: (1) That complainants have a plain, speedy, and adequate remedy at law; (2) the suit is one against the state; (3) that the plea of the unconstitutionality of the statute was made in the criminal actions. The three defenses are without merit. Six informations have already been filed against appellees and as many more may be brought as there may be violations of the statute, and a conviction of each may bear a fine of $1,000 or imprisonment, or both. The suit manifestly is not one against the state, and the decree appealed from does not enjoin criminal actions commenced before the filing of the bill. We therefore pass to the merits. A summary of the statute is all that is necessary. Its purpose as declared in its title is to prevent fraud in the sale and disposition of stocks, bonds, or other securities sold or offered for sale within the state. It creates a commission, called the State Securities Commission, of which the appellants—except Hanson, who is prosecuting attorney of Turner county—are members. Those dealing in securities—and they may be persons, corporations, copartnerships, companies, or associations, incorporated or unincorporated—shall be known, it is provided, 'as a domestic investment company.' Those resident of or organized in any other state, territory, or government shall be known 'as a foreign investment company.' Certain securities are exempt from the provisions of the act, and information as to those to which it applies must be furnished to the Commission as follows: If the securities are of the dealer's own issue, a statement must be filed with the Commission, showing in full detail (1) the plan upon which it proposes to transact business; (2) a copy of all contracts, stocks, and bonds which it proposes to make with or sell to contributors or customers, together with a copy of its prospectus and of the proposed advertisements of its securities; which statement shall also show the names and location of its main office; (3) the names and addresses of its officers and an itemized account of its financial condition and the amount of its assets and liabilities; (4) such other information as the Commission may require; (5) if a foreign corporation, a copy of the law under which it was incorporated; (6) a copy of its charter and certain other papers relating to its constitution and organization. A filing fee is provided for of not less than $10 nor more than $100. The described papers are to be verified, and, if of record, certified to. If a foreign corporation, the applicant must file its irrevocable consent to suits against it by service of summons upon the public examiner. The Commission is authorized to require further information than that mentioned above, and to make an appraisal of the property of the applicant at the expense of the applicant. If the Commission find from the statements filed and the reports of the investigations conducted by it that the securities or investment contracts offered for sale would, in its opinion, work a fraud upon the purchaser, the Commission shall disapprove of their sale and notify the company by registered mail of its findings and disapproval, and it shall be unlawful for the company to sell such securities, and they shall not be sold in the state. If, however, the proposed plan of business and the securities are not of that character their sale shall be approved and a certificate issued of permission to sell. The person who is authorized to sell the securities designated in the act is termed a 'dealer' in them, and he shall not sell or offer them for sale until he shall have filed a list of the same in the office of the Commission. The term 'dealer,' it is provided, shall not include an owner nor issuer of securities when the sale of them is not made in the course of continued and successive transactions of a similar nature, nor one who, in a trust capacity created by law, lawfully sells securities 'impressed with such trust.' A 'dealer' is required to furnish practically the same information as that required of corporations. All authorized agents of a 'dealer' or investment company shall be registered with the Commission, and if the 'dealer' be a nonresident or a corporation other than a domestic corporation, he shall, at the time he registers with the Commission, file with it a written, duly authenticated appointment of the public examiner of the state as his or its agent in the state upon whom process or pleadings may be served for or on behalf of the 'dealer,' which appointment shall be irrevocable. Upon compliance with the terms of the act, the Commission shall issue to such 'dealer' a license which shall be good until revoked by the Commission for good cause upon notice to the 'dealer,' and after a hearing duly had. There is a provision for keeping accounts, payment of fines, and other details, and it is provided that if, after permission has been issued authorizing the sale of the designated securities, it shall be made to appear to the Commission, from an examination of an investment company, that the further sale of the securities would work a fraud upon the purchaser, the Commission may make an order revoking the license of the company, and, pending the hearing, suspend the right of the company. It is unlawful for a dealer or investment company to sell or offer for sale securities other than those approved by the Commission, or to transact business on any other plan than that set forth in the statements and papers required to be filed with the Commission; or to circulate advertisements or other documents in the state differing in any way from the copy filed with the Commission; or until the same has been approved by the Commission. And no dealer shall sell or offer for sale securities of an investment company until such company has complied with the act. He may, however, if such investment company has not itself complied with the act, make application for a license. Records of the Commission shall be public records, and they shall be so arranged and preserved as to facilitate their examination, except that the Commission may, in its discretion, withhold information relating to the private affairs of persons or corporations when, in its judgment, the same shall not be required for the public welfare, or any information relative to any matter that may be at issue in any court, unless upon an order of the court. Except as so provided, the Commission may furnish to those who may apply therefor any information regarding any investment company or its affairs. Annual statements are required to be filed by investment companies, domestic or foreign, in such form and containing such information as the Commission may demand; and failure to do so forfeits its permit. The supreme court of the state, upon petition of any person aggrieved, may review by certiorari any final order or determination of the Commission. The issue of the writ shall not, however, unless specifically ordered by the court, operate as a stay of proceedings. Violations of the act are made misdemeanors punishable by a fine of not more than $1,000 or imprisonment for not more than one year, or both fine and imprisonment. And it is provided that if any section of the act be declared unconstitutional or unauthorized, the other sections shall not be vacated thereby. The statute of South Dakota differs in some details from the statute of Ohio, but in its purpose and general provisions it is the same. There is urged against it, as was urged against the Ohio statute, that it violates the 14th Amendment and the commerce clause of the Constitution of the United States. The argument to support these contentions, while affluent in citation of cases, is not so circumstantial as that which is presented against the Michigan statute. Therefore, we shall rest this case upon our opinion in Nos. 438, 439, and 440 [242 U. S. 539, 61 L. ed. 480, 37 Sup. Ct. Rep. 217], reserving to the Michigan case our reply to the more specific objections. Decree reversed and cause remanded for further proceedings in conformity with this opinion. Mr. Justice McReynolds dissents.

246.US.457

In a proceeding before the Interstate Commerce Commission to establish through routes and joint rates over the Manufacturers Railwaya company operating terminals at St. Louis and held by the Commission to be a common carrier, though controlled and principally used by the intervening Brewery,--and certain trunk lines at St. Louis, the contention was that the latter, in canceling tariffs wherein they had applied their St. Louis rates to industries on the Railway and had absorbed its switching charges, and in continuing this practice as to another terminal-St. Louis Terminal Railroad Association-whose shares they owned, were guilty of unlawful discrimination, in avoidance of which the absorptions should be regstablished. Held: (1) That the finding of the Commission, based upon differences of location, ownership and operation, that there was not undue discrimination was not without evidentiary support and not an abuse of discretion. (2) That the Commission was justified by the evidence in holding that not more than $2.50 per car should be added to the trunk line rates for the Railway terminal, upon the ground that such limitation was necessary to avoid undue preferences or indirect rebates to the Brewery. (3) That, as the controversy was not directed to the reasonableness of the trunk line rates, the Commission, in fixing the maximum joint rate, properly assumed them to be reasonable per se; the "increased rate clause" of the Commerce Act, as amended (c. 309,36 Stat. 552), does not lay upon the carrier the burden of proving a new rate reasonable when that question is not involved in the hearing. (4) That the decision of this court, respecting the St. Louis Terminal Association (224 U. S. 383, 412; 236 U. S. 194, 207-209), left untouched the powers of the Commission, and complainants were entitled at most to have the Commission consider the nature and objects of the Association as circumstances bearing upon the question of discrimination and questions pertinent thereto. In fixing joint rates it is within the discretion of the Commission to allow the carriers to arrange the divisions, as contemplated by the first paragraph of § 15 of the Commerce Act (36 Stat. 551), subject to review by the Commission. Whether a discrimination is undue or unreasonable or unjust is a question of fact confided by the Commerce Act, as amended (§§ 15, 16), to the judgment and discretion of the Commission, and upon which its decisions, made the basis of administrative orders operating infuturo,a re not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or for some other reason amount to an abuse of power. A court cannot substitute its judgment for that of the Commission upon a purely administrative matter. Common use of the facilities of the St. Louis Terminal by fourteen trunk lines owning its capital stock, under a single arrangement by which they absorbed the terminal charges, held not as a matter of law to entitle another terminal company, having no trunk line and doing terminal switching alone, to precisely the same treatment. The District Court has no jurisdiction under the Commerce Acts to exercise administrative authority where the Commission has failed or refused to exercise it, or to annul orders of the Commission not amounting to an affirmative exercise of its powers. So held where the Commission fixed maximum joint rates for trunk lines and a terminal company, and the gravamen of the latter's suit was the failure to fix the divisions. A proper foundation for reparation was not laid in the evidence submitted to the Commission in this case. Pending a proceeding. before the Commission involving an inquiry as to how much could properly be allowed to a terminal as divisions or absorptions by trunk line carriers, one of the latter, which was and remained a party, filed and published a tariff providing for absorptions of the terminal's switching charges up to a certain rate per car which it had previously allowed and retracted and was in the position of attacking in the proceeding as illegal and excessive. The Commission suspended the proposed absorption for 120 days from the effective date, and then for 6 months, to await its decision in the pending inquiry, treating the one as ancillary to the other and as involving no different question on the merits, and, upon deciding the original matter within the 6 months, canceled the tariff without having given it a separate hearing. Held, proper, and not inconsistent with the provisions of § 15, second paragraph, of the Commerce Act, as amended June 18, 1910, c. 309, 36 Stat. 552, respecting suspensions of new rates. Although a rate-fixing order is not conclusive against attack upon the constitutional ground of confiscation, correct practice requires that the objection be made, and all evidence pertinent thereto adduced, before the Commission in the first instance if practicable. Where the Commission, after full hearing, sets aside a rate as unreasonably high, only a clear case would justify a court, upon evidence newly adduced but not newly discovered, in annulling the Commission's action upon the ground that the same rate was so unreasonably low as to deprive the carrier of its constitutional right of compensation. The evidence produced and relied on in the District Court by the complaining terminal,--consisting of expert valuation of its leasehold and other property, calculations of revenue and expenses, with allocations to its interstate business,--examined and held largely speculative, inconsistent with other evidence, in part based on erroneous theories, and, as a whole, insufficient to establish that a rate of $4.50 per car for interchange movements would be confiscatory. The voluntary adoption of a rate by a carrier is some evidence against the carrier that it is remunerative. In estimating the value of a leasehold to the lessee, taxes paid by the lessor should not be deducted from the annual cost as measured by the gross rental. A finding by the Commission that a railway is a common carrier does not mean that all of its property must be treated as employed in the public service; portions used as a private plant facility should not be considered in determining the adequacy of a rate. A city leased for railway purposes land, which in considerable part constituted a public wharf. Held, that, if the rental was less than the fair annual value, it must be presumed the excess was granted to the public, and not to the private interest of the carrier, in capitalizing its assets for the purpose of testing the adequacy of a

It will be convenient to dispose first of No. 25. The scope of the order of July 10, 1914, under I. C. C. Docket No. 3151, is simple and limited; the grounds of attack upon it are many and diverse, and based rather upon what it does not, than upon what it does, require to be done. As is pointed out in the prefatory statement, the complaint before the Commission was made by the Railway, the Brewery, and certain other shippers served by the Railway. The respondents were the trunk lines. The complaint charged that the then recent tariff cancellations were in effect a refusal to continue through routes and joint rates from and to points on the line of the Railway; alleged that this constituted unreasonable discrimination between shippers on the line of the Railway and other shippers in the city of St. Louis, and subjected the former to undue prejudice and disadvantage, contrary to section 3 of the Commerce Act (24 Stat. 379, 380, c. 104); and prayed that the trunk lines be required to re-establish the through routes and joint rates as they existed before the cancellations, that the reasonable divisions of the rates be determined, and that due reparation be awarded to the complainants, with such other relief as the Commission might deem necessary. The order under consideration, recognizing through routes as being already in effect (a fact about which there is no dispute), required the Railway and the trunk lines to establish, and for at least two years to maintain, rates not exceeding by more than $2.50 per car the trunk line rates contemporaneously in effect between St. Louis and points in other states. It is urged that the cancellation of the absorption tariffs on March 1, 1910, constituted an increase of the former rates because it curtailed the service to be rendered under those rates; that the former absorptions presumably resulted in reasonable rates (Interstate Com. Com. v. Chicago, B. & Q. R. R. Co., 186 U. S. 320, 336, 22 Sup. Ct. 824, 46 L. Ed. 1182); that by the 'increased rate clause' of section 15 of the Commerce Act as amended in 1910 (36 Stat. 552, ch. 309),1 the burden was upon the trunk lines to show the reasonableness of the new rates; and that, there being no evidence to sustain their reasonableness per se, the Commission erred in law in failing to set them aside by restoring the former absorptions. But this clause of section 15, by the fair import of tis terms, imposes upon the carrier the burden of proving the new rate to be just and reasonable, only where that question is involved in the hearing; it does not call for proof as to matters not in controversy. As the Commission pointed out in its several reports (21 I. C. C. 308; 28 I. C. C. 100, 101, 103, 105, 110; 32 I. C. C. 102, 105), the complaint was not directed to the reasonableness of the separate rates either of the Railway (one of the complainants) or of the trunk lines. The effort was to require the reestablishment of the former absorptions on the ground that without them the continued practice of absorbing the charges of the Terminal constituted a discrimination as against shippers on the line of the Railway. And w en the question of discrimination was finally decided against the contention of the complainants, and the claim of the Railway to be regarded as a common carrier was decided in their favor (both conclusions being supported by adequate evidence), it appearing that through routes actually were in effect after as before the cancellations, the Commission deemed it unnecessary to do more at that time than to fix a maximum for the joint rates, and then await the voluntary action of the Railway and the trunk lines about establishing joint rates within the maximum, and agreeing between themselves respecting divisions. The question of the reasonablencess of the allowances or divisions made and to be made to the Railway came into the case incidentally, but inevitably, because of the heavy shipments to and from the Brewery and the community of interest between it and the Railway. Upon this point there was abundant evidence to support the conclusion of the Commission that in making up the joint rates not more than $2.50 per car should be added to the trunk line rates to St. Louis, and the intimation (not final, and not carried into the order) that any division to the Railway out of the joint rate in excess of $2.50 per car would amount to an undue preference or indirect rebate to the Brewery. Beyond this, no question of separate rates was involved, and the Commission did not err, in view of the issues, in assuming the trunk line rates to be reasonable per se. Althouth it might have dealt with the divisions in the same order, so far as necessary to prevent undue favoring of the Brewery (O'Keefe v. United States, 240 U. S. 294, 300-302, 36 Sup. Ct. 313, 60 L. Ed. 651), it was within the discretion of the Commission to allow the carriers to make their own agreement upon the subject, as contemplated by the first paragraph of section 15 of the act (36 Stat. 551), subject to its review. It is insisted that the 'advanced rates' resulting from canceling the absorptions were presumptively unreasonable because not established by free competition but by concerted action in furtherance of the aims of the Terminal Railroad Association of St. Louis, held by this court to be an unlawful combination in restraint of interstate commerce. United States v. St. Louis Terminal, 224 U. S. 383, 32 Sup. Ct. 507, 56 L. Ed. 810. But our decision in that case (224 U. S. 412, 32 Sup. Ct. 507, 56 L. Ed. 810; 236 U. S. 207-209, 35 Sup. Ct. 408, 59 L. Ed. 535) left untouched the powers of the Interstate Commerce Commission. Besides, appellants sought no special relief because of the Anti-Trust Act. Hence at the utmost they were only entitled to have the Commission consider the nature and objects of the Terminal Association as circumstances bearing upon the question of discrimination and other questions to which they were pertinent; and this the Commission did. 21 I. C. C. 308, 314; 28 I. C. C. 98, 104-106, 109-110; 32 I. C. C. 102. It is insisted, however, that the finding to the effect that it was not an undue or unjust discrimination for the trunk lines to refuse to absorb the Railway's charges and thereby extend their flat St. Louis rates to the territory served by the Railway, while doing so with respect to the territory served by the Terminal, is contrary to the indisputable character of the testimony and inconsistent in law with the very facts found by the Commission. To this we cannot accede. It is not any and every discrimination, preference, and prejudice that are denounced by the Commerce Act. Section 3 (Act of February 4, 1887, c. 104, 24 Stat. 379, 380) renders unlawful any 'undue or unreasonable' preference or advantage, prejudice or disadvantage. In the same section the requirement of 'all reasonable, proper, and equal facilities for the interchange of traffic' is qualified so as not to require one carrier to give the use of its tracks or terminal facilities to another. And in the first paragraph of amended section 15 (36 Stat. 551) it is rates, regulations, or paracties that in the opinion of the Com ission are 'unjustly discriminatory, or unduly preferential or prejudicial,' etc., to which the prohibition is to be applied. Whether a preference or advantage or discrimination is undue or unreasonable or unjust is one of those questions of fact that have been confided by Congress to the judgment and discretion of the Commission (Interstate Comm. Comm. v. Alabama Midland Ry., 168 U. S. 144, 170, 18 Sup. Ct. 45, 42 L. Ed. 414), and upon which its decisions, made the basis of administrative orders operating in futuro, are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or for some other reason amount to an abuse of power. This results from the provisions of sections 15 and 16 of the Commerce Act as amended in 1906 and 1910 (34 Stat. 589-591, c. 3591; 36 Stat. 551-554, c. 309), expounded in familiar decisions. Interstate Comm. Comm. v. Illinois Central R. R., 215 U. S. 452, 469, 470, 30 Sup. Ct. 155, 54 L. Ed. 280; Interstate Comm. Comm. v. Union Pacific R. R., 222 U. S. 541, 547, 32 Sup. Ct. 108, 56 L. Ed. 308; Procter & Gamble v. United States, 225 U. S. 282, 297-298, 32 Sup. Ct. 761, 56 L. Ed. 1091; Interstate Comm. Comm. v. Louisville & Nashville R. R., 227 U. S. 88, 91, 33 Sup. Ct. 185, 57 L. Ed. 431. In the present case the negative finding of the Commission upon the question of undue discrimination was based upon a consideration of the different conditions of location, ownership, and operation as between the Railway and the Terminal. 28 I. C. C. 104, 105; 32 I. C. C. 102. The conclusions were reached after full hearing, are not without support in the evidence, and we are unable to say that they show an abuse of discretion. It may be conceded that the evidence would have warranted a different finding; indeed, the first report of the Commission was to the contrary; but to annul the Commission's order on this ground would be to substitute the judgment of a court for the judgment of the Commission upon a matter purely administrative, and this cannot be done. United States v. Louisville & Nashville R. R., 235 U. S. 314, 320, 35 Sup. Ct. 113, 59 L. Ed. 245; Pennsylvania Co. v. United States, 236 U. S. 351, 361, 35 Sup. Ct. 370, 59 L. Ed. 616. The common use of the St. Louis Terminal by the fourteen trunk lines under a single arrangement as to absorption of the terminal charges does not, as matter of law, entitle the Railway which has no trunk line and does terminal switching alone, to precisely the same treatment. United States v. St. Louis Terminal, 224 U. S. 383, 405, 406, 32 Sup. Ct. 507, 56 L. Ed. 810; Louisville & Nashville R. R. v. United States, 242 U. S. 60, 37 Sup. Ct. 61, 61 L. Ed. 152. Criticism is directed to the somewhat abstruse distinction drawn by the Commission between allowances or absorptions made by trunk lines in compensation for services rendered to them and divisions out of joint rates as for services rendered for the shippers (28 I. C. C. 101-106; 32 I. C. C. 102); but we deem it unnecessary to discuss the point. See Tap Line Cases, 234 U. S. 1, 28, 34 Sup. Ct. 741, 58 L. Ed. 1185. United States v. Butler County R. R. Co., 234 U. S. 29, 35-36, 34 Sup. Ct. 748, 58 L. Ed. 1196; O'Keefe v. United States, 240 U. S. 294, 302, 36 Sup. Ct. 313, 60 L. Ed. 651. It hardly can have escaped attention that the real complaint of appellants respecting the order now under consideration is directed not to what the order requires to be done, but to what it does not require. It granted a part of the relief for which appellants had applied to the Commission. Recognizing the Railway as a common carrier to which allowances and divisions might be accorded by the trunk lines, and that through routes were in operation between the Railway and those lines, it fixed the maximum joint rates, and went no further for the present. The real ground for resorting to the courts in this case is the failure to fix divisions. In effect the District Court was asked to perform a function specifically conferred by law upon the Commission. But that court has only the same jurisdiction that formerly was vested in the Commerce Court (Act of June 18, 1910, c. 309, 36 Stat. 539; Act of October 22, 1913, c. 32, 38 Stat. 208, 219); and it is settled that this does not permit the court to exercise administrative authority where the Commission has failed or refused to exercise it, or to annul orders of the Commission not amounting to an affirmative exercise of its powers. Procter & Gamble v. United States, 225 U. S. 282, 292, et seq., 32 Sup. Ct. 761, 56 L. Ed. 1091. Complaint is made because reparation was not awarded. But we are unable to see that proper foundation was laid for this in the evidence submitted to the Commission. Nothing more need be said concerning No. 25. The first question raised in No. 24 is based upon the language of the second paragraph of section 15 of the Commerce Act, inserted by the amendment of June 18, 1910, c. 309, 36 Stat. 539, 552.2 It is said that the tariff published by the Cotton Belt December 7, 1913, was a new tariff within the meaning of this provision, and while the Commission was authorized, either upon complaint or on its own initative, to suspend its operation pending a hearing, this suspension must not be for a longer perod than 120 days beyond the time when the tariff would otherwise go into effect unless the hearing could not be concluded within that period, in which case alone the Commission might extend the time of suspension of a further period not exceeding six months. It is contended that no hearing on the matters involved in the suspended tariff was begun within the 120 days, and therefore the second order of suspension, and also the order canceling this tariff, were arbitrary and unlawful; the argument being that the issues involved in I. C. C. Docket No. 3151 were not the same as those presented in the matter of the suspended tariff, I. & S. Docket No. 355, and hence there was no hearing whatever on the latter. The form of the orders made by the Commission in I. & S. Docket No. 355 lends color to this argument. The order of December 19, 1913, makes no reference to the proceedings then pending in I. C. C. Docket No. 3151, treats the tariff recently filed as 'stating new individual regulations and practices affecting rates and charges,' declares that the Commission will enter upon a hearing concerning their propriety, and directs that their operation be postponed until the seventh of May; while the order of April 20 refers to the former one, recites that 'such hearing cannot be concluded within the period of suspension above stated,' and orders a further suspension until the 7th of November. But it is not suggested, and there is no ground for supposing that the parties were misled by the form of these orders. They were parties to I. C. C. Docket No. 3151, then pending. The Cotton Belt was one of the carriers which had canceled the former tariffs authorizing allowances averaging $4.50 per car to the Railway, and the Railway having complained to the Commission of its action, it answered declaring among other things that it canceled the tariff for the reason that it was advised that the allowances theretofore made to the Railway were illegal because the Railway was merely an industrial or tap line and under the law not entitled to any part of the through rate, and further that if the Railway was entitled to compensation as a carrier it was not entitled to receive from the Cotton Belt any allowance out of the through rate, that if entitled to any it was not entitled to the allowance theretofore paid to it under the canceled tariff, and that the allowance given to the Railway was unreasonable, excessive, and unjust. The issues raised by this answer and by the answers of the other defendant trunk lines, which are briefly recited in the first report (21 I. C. C. 307) but need not be here repeated necessarily involved, and were treated by the Commission as involving, the question how uch could be allowed by the trunk lines to the Railway out of the through rate without amounting to an undue preference or indirect rebate to the Brewery because of the common control of the Brewery and the Railway. Special attention was called to this in the first report, as appears from what has been recited in the statement prefacing this opinion. And it is obvious that the same consideration was inherent in the case, whether the payments by the trunk lines to the Railway were considered as divisions of joint rates for services rendered for the shippers served by the Railway, or absorptions in compensation for services rendered by the Railway for the trunk lines. In either case, if the allowances to the Railway were made unduly large, the Brewery's share of the profit accruing from them would amount to an indirect preference to the Brewery. Tap Line Cases, 234 U. S. 1, 28, 34 Sup. Ct. 741, 58 L. Ed. 1185; O'Keefe v. United States, 240 U. S. 294, 301-302, 36 Sup. Ct. 313, 60 L. Ed. 651. Accordingly, in the second report (28 I. C. C. 107), the Commission said: 'Complainant railway itself concedes that this question of the amount of the allowance to the Railway, but not the question of whether a reasonable allowance should be made, is a matter for closer investigation owing to the common ownership of the stock of the Railway and of the Brewery, its statement in this respect, however, being based of course upon the understanding that the allowance was to come from the trunk lines.' And in the concluding part of its report, the Commission stated (page 111): 'Should one or more of the trunk lines attempt to pay to the Railway [more than] the $2 per car which we suggest herein as being in our opinion reasonable for the latter's shippers to pay for its service, another question would be presented in which would figure the fact, much discussed in the record, of the common ownership of the stock of the Railway and of the Brewery. That question would not arise primarily under section 15 of the act, but under those sectionswhich seek to prohibit the giving of unlawful concessions by any device whatsoever. It follows from what we have said herein that we regard the present allowances which, as stated, average slightly above $4.50 per car, as effecting unlawful results.' This was on June 21, 1913; pursuant to the report the criticized allowances were canceled; and on November 13 in the same year the case was submitted to the Commission upon a rehearing at the instance of the Railway. The Cotton Belt remained a party to the proceeding. The issues raised by its answer had not been finally disposed of, nor its answer withdrawn. Since it involved the public interests, and not merely those of the Cotton Belt, this particular issue hardly could be withdrawn. The question of the validity of the previous allowances, approximately $4.50 per car, or of any allowance greater than $2 per car, being thus bound up in the pending controversy under I. C. C. Docket No. 3151, the Cotton Belt tariff published December 7, 1913, while the Commission had that controversy under advisement, manifestly was an attempt to forestall the decision. There was no error in suspending it pending the decision. And, there being nothing further to be submitted to the Commission in the way of evidence or argument, it was natural, and not inconsistent with the substantial rights of the parties, for the Commission to treat the suspension of the Cotton Belt tariff as a proceeding ancillary to the other, involving no different question on the merits. The final order setting this tariff aside necessarily rested upon a finding that the proposed absorption was was so unduly large as to amount to a preference or indirect rebate to the Brewery. In orders of this kind, not including an award of damages, formal and precise findings no longer are necessary; section 14 having been amended in this respect by Act of June 29, 1906, c. 3591, 34 Stat. 584, 589. See House Report No. 591, 59th Congress, 1st Sess. p. 4, explaining this provision of the bill. What we have said disposes at the same tim of the only objection raised against the order of April 20, 1914. The Railway makes the additional contention that the order of July 10, 1914 (I. & S. Docket No. 355), prohibited the Cotton Belt from paying to the Railway as much as $4.50 per car for its services, and that it amounted to a taking of the Railway's property without due process of law in violation of the Fifth Amendment, because any rate less than that named would be confiscatory. That the order has the effect of prohibiting the Cotton Belt from paying to the Railway as much as $4.50 per car is alleged in the petition of the appellants and admitted in the answer of the United States, and we take it for granted that this is so. It is argued that it was operative upon all the trunk lines, and it is contended that payments by all of these lines upon all interstate car interchanges of any rate less than $4.50 per car would not yield in the aggregate a reasonable return upon the fair value of the Railway's property devoted to the use of interstate commerce. As a part of the argument, it is urged that the decision of the Commission actually limits the earnings of the Railway to $2.50 per car, alleged to be wholly inadequate. But the order under attack in this suit has no such effect; and the contemporaneous order under I. C. C. Docket No. 3151 merely limits the joint rates to not exceeding $2.50 in advance of the St. Louis rates, and does not deal with the divisions; the opinion expressed upon this point being only tentative. Appellees contend that the finding of the Commission upon the subject of confiscation is conclusive; or at least that it is not subject to be attacked upon the evidence not presented to the Commission, as is attempted here. We cannot sustain this objection in its entirety. It is true that so long as the Commission proceeds in accordance with the requirements of the Commerce Act and its amendments, and with proper regard for constitutional restrictions, its administrative orders, not calling for the payment of money, if made after due hearing and supported by evidence, are not subject to attack in the courts. This, as we have seen, results from the provisions of sections 15 and 16 of the act as amended. Interstate Comm. Comm. v. Illinois Central R. R., 215 U. S. 452, 469-470, 30 Sup. Ct. 155, 54 L. Ed. 280; interstate Comm. Comm. v. Union Pacific R. R., 222 U. S. 541, 547, 32 Sup. Ct. 108, 56 L. Ed. 308; Procter & Gamble v. United States, 225 U. S. 282, 297-298, 32 Sup. Ct. 761, 56 L. Ed. 1091; Interstate Comm. Comm. v. Louisville & Nash. R. R., 227 U. S. 88, 91, 33 Sup. Ct. 185, 57 L. Ed. 431. But these cases recognize that matters of constitutioal right are not to be conclusively determined by the Commission; and we are not prepared to say that a party is debarred from attacking an order of the Commission upon constitutional grounds even though they were not taken in the hearing before that body. Nevertheless, correct practice requires that, in ordinary cases, and where the opportunity is open, all the pertinent evidence shall be submitted in the first instance to the Commission, and that a suit to set aside or annul its order shall be resorted to only where the Commission acts in disregard of the rights of the parties. This was recognized before the amendment of 1906, and when by sections 14, 15, and 16 of the original Act of February 4, 1887, c. 104, 24 Stat. 379, 384, as amended by Act of March 2, 1889, c. 382, 25 Stat. 855, the findings made by the Commission upon questions of fact were limited in their effect to that of prima facie evidence in all cases and not only, as now, in reparation cases. Concinnati, N. O. & Texas Pac. Ry. v. Interstate Comm. Comm., 162 U. S. 184, 196, 16 Sup. Ct. 700, 40 L. Ed. 935; Texas & Pacific Ry. Co. v. Interstate Comm. Comm., 162 U. S. 197, 235, 238, 16 Sup. Ct. 666, 40 L. Ed. 940; Louisville, etc., R. R. Co. v. Behlmer, 175 U. S. 648, 675, 20 Sup. Ct. 209, 44 L. Ed. 309; East Tennessee, etc., Ry. Co. v. Int rstate Comm. Comm., 181 U. S. 1, 27, 21 Sup. Ct. 516, 45 L. Ed. 719; Illinois Central R. R. v. Interstate Comm. Comm., 206 U. S. 441, 454, 27 Sup. Ct. 700, 51 L. Ed. 1128. The 1906 amendment, in modifying section 14 so as to dispense with the necessity of formal findings of fact except in cases where damages (or reparation) are awarded, and sections 15 and 16 so as to give a greater effect than before to the orders of the Commission other than those requiring the payment of money, renders it not less but more appropriate that, so far as practicable, all pertinent objections to action proposed by the Commission and the evidence to sustain them shall first be submitted to that body. Hence, we cannot approve of the course that was pursued in this case, of withholding from the Commission essential portions of the evidence that is alleged to show the rate in question to be confiscatory. Certainly, where the Commission, after full hearing, has set aside a given rate on the ground that it is unreasonably, high it sould require a clear case to justify a court, upon evidence newly adduced but not in a proper sense newly discovered, in annulling the action of the Commission upon the ground that the same rate is so unreasonably low as to deprive the carrier of its constitutional right of compensation. However, the issue is in the case and must be dealt with. In order to show that any rate less than $4.50 would be noncompensatory, the Railway undertook to demonstrate that the full $4.50 would not pay the cost of transportation and yield a just return upon the value of its property. Yet the rates voluntarily established by the Railway prior to the commencement of the present controversy averaged about $4.50 per car, a $4.50 rate was provided for in a tariff issued by the Railway in February, 1913, a uniform allowance of this amount was asked for by it upon the second hearing before the Commission, and the Railway concurred in, and now seeks to maintain, the Cotton Belt tariff which contemplated payment of that rate for its services. Besides, the rate may be compared with $3 per car charged by the Terminal for similar services, $2 per car fixed by city ordinance as the Railway's maximum charge for local shipments between any points on its line, the charge of $1 per car voluntarily established by the Railway for intra-plant movements, 25 cents per car for weighing movements, and the special charge of $1 per car on limited liability, obtaining between the Railway and the Cotton Belt and offered to other carriers. The evidential effect of the Railway's voluntary action is obvious. Interstate Comm. Comm. v. Chicago, B. & Q. R. R. Co., 186 U. S. 320, 336, 22 Sup. Ct. 824, 46 L. Ed. 1182. Moreover, upon the second hearing before the Commission (January, 1912), Mr. Moore, the President of the Railway, testifying in its behalf upon the very point and from a full knowledge of the operations of the company and its property and expense accounts, stated: 'The revenue which we are now receiving for all kinds of service performed by the Manufacturers' Railway Company is sufficient to pay operating expenses, taxes, rentals, and other fixed charges and 7 per cent. on the investment.' The evidence produced by the Railway before the District Court, while quite inconsistent with these concessions, is adduced as a mathematical demonstration that the $4.50 rate is confiscatory. The principal witnesses were an expert in the valuation of railways, two real estate experts, and Mr. Moore, the President of the Railway. Opinion evidence was relied upon, basing values on estimated cost of reproduction less depreciation, it being stated that the records of the Railway had been kept in such a way as not to show the actual cost. A table was presented ('Summary D') stating the entire value of the property of the Railway on January 1, 1915, at $2,215,353.78, and deductions were made of capital expenditures during the previous eighteen months, in order to show the value as of June 30, 1913, and June 30, 19 4. It was attempted to assign to the interstate business a proportion of the total value corresponding to the extent of its employment in that business. Minnesota Rate Cases, 230 U. S. 352, 461, 33 Sup. Ct. 729, 57 L. Ed. 1551, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18. The value of the property as of June 30, 1913, according to the estimates, was $2,086,474.98; and it being found that the interstate car movements during the preceding fiscal year were 79.58 per cent. of the total traffic, an application of this percentage to the total value gave $1,659,227.08 as the proportion of the value of the property, based on use, assigned to interstate traffic for the fiscal year 1913. Operating expenses, taxes, and rentals for the same year were said to amount to $195,628.80, of which 79.58 per cent., or $155,681.39, was apportioned to interstate business. The gross revenue from interstate business for the same year, on the assumed basis of $4.50 per car from all trunk lines on all car interchanges, was calculated to be $217,309.25. Deducting from this the apportioned expenses ($155,681.39) would leave a net revenue of $61,627.86, or only 3.7 per cent. of $1,659,227.08, the value of the property assigned on the basis of use to interstate traffic as of June 30, 1913. Similar processes showed apparent net earnings of only 1.86 per cent. for the fiscal year ending June 30, 1914, and .77 per cent. for the six months ending December 31, 1914. The calculations are complex, and we need not reproduce them in detail. We have indicated the outlines, and will analyze the figures only far enough to show that they do not amount to a demonstration. By way of contrast to the results deduced from opinion evidence concerning values, it should be remarked that Mr. Moore testified in the District Court that at the commencement of his connection with the company in February, 1909, he could only find an apparent book value amounting to $300,899.65, which he believed, however, did not reflect the value of the railway property at that time; and that down to January 31, 1915, there had been improvements and additions to the equipment amounting to $560,008.75, and additions to real estate amounting to $525,349, making a total book value of $1,386,257.40. By deducting $128,878.80 for capital expenditures subsequent to June 30, 1913, we get $1,257,378.60 as the total value on that date, of which 79.58 per cent., or $1,000,621.89, would represent the value assigned to the interstate business according to the formula; and upon this amount the calculated net revenue of $61,627.86 would yield over 6 per cent. Returning to the calculation relied upon by the Railway, Summary D includes an item 'Present Value of Leases, $757,102.' This is the sum of two items, explained as follows: The Railway holds under lease from the Brewery all the lands occupied by its tracks and certain tracks owned by the Brewery within what is described as the 'Brewery Zone,' bounded by Lynch Street on the north, First street on the east, Utah Street on the south, and Thirteenth Street on the west, the rental being $24,000 per annum, and the lease having seventeen years to run from January 1, 1915. The real estate experts valued this according to its area in square feet, and by this process arrived at $1,377,853 as its market value. The rental value on a 5 per cent. basis would be $68,892.65. Since by the terms of the lease the lessor was required to pay the taxes, estimated at about $6,000, reducing the net income to about $18,000, this sum was deducted from $68,892.65, leaving $50,892.65 as the annual value of the lease to the Railway for the unexpired term of seventeen years; and the cash value of an annuity of the amount for that term, said to be $573,767, was taken as the capital value of the lease.3 Again, the Railway holds certain property in its River Yard under lease from the City of St. Louis at an annual rental of $4,000, expiring October 7, 1934. This property was estimated by the witnesses to be worth $376,309, 5 per cent. of which is $18,815.45, and this amount less $4,000 was taken to be the annual value of the lease, which, capitalized for 19 years 9 months and 7 days, the unexpired term from January 1, 1915 (date of valuation), gave $183,335 as the value of this lease to the lessee. We are not convinced that these somewhat speculative valuations of the leaseholds, even if the calculations were otherwise correct, ought to be included in the value of the Railway's property for the present purpose. The lease from the Brewery includes sidings, tracks, and yards some of which are of special value to the Brewery, but either are inaccessible to the general public served by the tracks of the Railway or are practically monopolized for plant use by the Brewery. The Commission, in its Second Report, 28 I. C. C. 96, described the conditions.4 The original lease from the Brewery to the Railway, dated December 31, 1908, drew a distinction between tracks and sidings, leasing the former and excluding the latter, as to which, however, it contained this clause: 'Said Association further gives and grants to said Railway the right and privilege to use and operate the aforesaid sidings, for railway purposes, upon condition, however, that such use will never interfere with the reasonable use thereof by said Association, of which said Association shall be the sole and only judge.' This was made the subject of criticism at the first hearing before the Commission, and in consequence the lease was amended before the second hearing so as to omit this limitation (28 I. C. C. 97). But the evidence tends to show, if it does not render it clear, that certain years and tracks representing more than one-third of the aggregate value of the leased lands are used almost if not quite exclusively by the Brewery; and raises a question whether some of the other yards, or portions of them, are not, like those mentioned, actually used rather as parts of the Brewery plant than as parts of the transportation system of the Railway. The finding of the Commission that the 1 ailway is for the purposes of its decision a common carrier (a finding not now in question), does not have the necessary effect of impressing all of its property with the character of property employed in the service of the public. The Commission recognized that there was a question whether a part of the service performed by the Railway was not a plant-facility service rather than that of a common carrier. 21 I. C. C. 316. And under the peculiar circumstances of the case we prefer to accept the reserved rental of $24,000, voluntarily fixed by the parties most concerned at a time antedating the present controversy, as more reliable evidence of the annual value of the rights conferred upon the Railway as a carrier than the opinions of the experts based upon the theory that by the lease the entire value of the property was devoted to the public use. The lease from the city to the Railway is not in the printed transcript, but the substance of the ordinance authorizing it is stated. It granted authority to construct, maintain, and operate tracks upon land of which a considerable part constituted a public wharf. If the stipulated rental is less than the fair annual value of the property it is to be presumed that the grant of the excess was to the public, not to the private interest of the Railway. We are at a loss to see upon what principle a presumed annual value of the leasehold in excess of the stipulated rent can be capitalized as assets of the Railway for the use of which in commerce the public is required to pay tolls. This would give to the lease the effect of converting public property, pro tanto, into private property. Deducting the value of leases, $757,102, from $2,086,474.98, the estimated value of the Railway's property as of June 30, 1913, would leave $1,329,372.98, of which 79.58 per cent., or $1,057,915.02, would represent the value assigned to the interstate business according to the formula; and upon this amount the calculated net revenue of $61,627.86 would yield over 5.8 per cent. The calculations of revenue and expenses also require revision. The gross revenue from interstate business as stated includes not merely that derived from car interchanges at $4.50 per car, of which in the fiscal year ending June 30, 1913, there were 45,602 cars, producing $205,209; but in addition there was short-haul interchanges, 4,975 cars at the city rate of $2 per car, producing $9,950; interplant and intra-plant movements, 1,206 cars at $1 per car, producing $1,206; and weighing movements, 3,777 cars at 25 cents, producing $944.25, making a total of $217,309.25. The evidence renders it clear that the cost of these different movements is not and cannot be segregated; and Mr. Moore himself testified in effect that it costs the same to the Railway to weigh a car upon which 25 cents revenue is received, as to make an intra-plant switch of a car for which $1 is received, or a city movement limited by ordinance to $2, or an interchange delivery for which $4.50 is the rate assumed for the purposes of the test. The plant movements are for the benefit of the Brewery alone, that being the only industry having need for such service; weighing movements likewise appear to be independent of transportation in commerce. The limit of $2 fixed by the ordinance for the city movements seems to have been a part of the consideration for the grant to the Railway of rights in the streets; and on this theory any deficiency of revenue is properly apportionable to the traffic participating in these movements. But as to the other movements, the method of calculation adopted apportions the cost between the different classes according to the revenue derived from each, rather than according to the cost or value of the service. If the plant and weighing movements—all of the former and three-fourths of the latter being performed for the Brewery—were charged at (say) $2.50 per car instead of the rates voluntarily adopted, the gain of revenue would be more than $10,000—approximately 1 per cent. upon the entire $1,057,915.02. The evidence submitted upon the issue of confiscation suggests other questions that need not be discussed or even mentioned; but we must not be understood as accepting what we have not particularly criticized. It is sufficient to say there is a failure to prove that the rate is unremunerative. Decrees affirmed. Mr. Justice HOLMES took no part in the consideration or decision of these cases.

246.US.552

The provision in the Act of March 3, 1891, § 8, 26 Stat. 1099, that "suits by the United States to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents," was designed for the security of patent titles and does not apply to an action at law to recover the value of patented land as damages for deceit practiced by the defendant in procuring the patent. A statute of limitations should be strictly construed in favor of the Government. Where there are two remedies for the protection of the same right, one may be barred and the other not. The provision in the Act of March 2, 1896, limiting the Government's money recovery to the minimum government price (see 29 Stat. 42, § 2), when patents have been "erroneously issued under a railroad or wagon road grant" and the lands have been sold to bona fide purchasers, does not apply to a case in which the Government seeks money damages because of deceit practiced in procuring a patent under the Homestead Law. 232 Fed. Rep. 139, reversed.

This is a suit to recover from the liquidating commissioners and the former president of a dissolved corporation the value of public lands described in a patent which it is alleged was procured from the government by the fraudulent conduct of the company and of its president. A demurrer to the petition was sustained by the District Court, and this judgment was affirmed by the Circuit Court of Appeals on the ground that the cause of action stated was barred by the statute of limitations, which reads as follows: 'That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.' Act March 3, 1891, c. 561, § 8, 26 Stat. 1099 (Comp. St. 1916, § 5114). The patent involved was issued on December 12, 1898, and if this case, commenced on December 29, 1914, were one 'to vacate and annul' the patent, plainly it would be barred. But this being a suit to recover damages from the fraudulent procurers of the patent, the question presented for decision is: 'Does the statutory bar to a suit to annul the patent also bar a suit for the value of the land fraudulently procured to be patented?' The chief argument in support of the judgment of the lower court is that while the government before the period of the statute had expired had two remedies, one to annul the patent and one, affirming the patent, to recover the value of the land, yet they were both based on one right, and that when the statute barred the suit to annul, thereby the patent became as valid for the future as if it had been properly issued and that this cuts off the right, and leaves the government without further remedy. This is begging the question. The statute of limitations did not create the right of action in the government or either of the remedies for enforcing that right. It relates to the remedy, and in terms applies only to one remedy, that for annulling the patent. The right of the government, asserted in this case, really springs from the fraudulent obtaining of the patent, not from the patent itself, and this right continues until it is satisfied or cut off by statute, and therefore to say that the barring of one remedy smothers the right to pursue the other is mere assertion, and does not advance us toward a conclusion as to the effect, if any, which such bar may have upon the other remedy, and the question we are considering remains unanswered, but becomes: What was the intention of Congress, confessedly not clearly expressed, with respect to this issue, when it enacted this limitation statute? Fundamental to the interpretation of the statute which the answering of this question renders necessary, lies the rule of law settled 'as a great principle of public policy' that the 'United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations, unless Congress has clearly manifested its intention that they should be so bound' (United States v. Nashville, Chattanooga & St. Louis Ry. Co., 118 U. S. 120, 125, 6 Sup. Ct. 1006, 30 L. Ed. 81), and also the fact that this principle has been accepted by this court as requiring not a liberal, but a restrictive, a strict, construction of such statutes when it has been urged to apply them to bar the rights of the government. Thus, in Northern Pacific Ry. Co. v. United States, 227 U. S. 355, 367, 33 Sup. Ct. 368, 57 L. Ed. 544, the limitation in the Act of March 2, 1896 (29 Stat. 42, c. 29), was hold not applicable to a patent erroneously issued for In ian lands under a railroad grant, and in La Roque v. United States, 239 U. S. 62, 68, 36 Sup. Ct. 22, 60 L. Ed. 147, the general language of the very act we are considering was held not applicable to a trust patent for Indian reserved lands. With this rule of interpretation and of practice under it in mind, let us consider the scope of the limitation provision relied upon, which is found in section 8 of the Act of March 3, 1891 (26 Stat. 1099, c. 561) entitled 'An act to repeal timber culture laws and for other purposes.' This act is a very considerable amendment to and revision of laws relating to public lands and, as House Report No. 253, 54th Congress, 1st Session, shows, it grew out of the insecurity and loss of confidence of the public in the integrity and value of patent titles to public lands, which had been occasioned by conflicting claims, chiefly between land grant railroad companies and the government, which had resulted in many suits being commenced to cancel patents. The statute was passed to promote prompt action for annulling patents where cause therefor was believed to exist and to make titles resting upon patents dependably secure when the period of limitation should expire. As might well be anticipated, therefore, this statute, originating in such conditions, was limited in its terms to suits 'to vacate and annul' patents, without any reference being made to suits to recover the value of the land when patents were fraudulently obtained, so that only by extravagant interpretation can its bar be made applicable to such suits—and such interpretation we have seen is forbidden. To this we add that when the Congress really intended to bar by limitation statute the right to recover the value of lands, as well as the lands themselves, such intention found clear expression in the Act of March 2, 1896 (29 Stat. 42), which modified, and in a measure is a substitute for, the section we are considering, by declaring: 'That no suit shall be brought or maintained, nor shall recovery be had for lands or the value thereof, that were certified or patented in lieu of other lands,' etc. And, finally, the decisions of this court furnish clear confirmation of the reality and substantial character of the contention of the government, by holding that when by mistake public officers executed a patent to a railroad company for lands which had afterwards been conveyed to purchasers dealing in good faith, the right of the government to recover such lands was barred, but nevertheless the right remained to sue for and recover the value of the lands so wrongfully received and conveyed. Southern Pacific R. R. Co. v. United States, 200 U. S. 341, 353, 26 Sup. Ct. 296, 50 L. Ed. 507. Thus the rule and practice for interpreting the act, its language, as well that which is omitted from it as that which is contained in it, and the action of Congress in dealing with a kindred subject-matter, all impel to the conclusion that the omission of language barring the right of the government to recover the value of lands to which a patent had been fraudulently obtained, was intentional and deliberate, to the end that patent titles might be made secure but that persons who had defrauded the government should not be protected by the act in the enjoyment of their ill-gotten gains. The support for the contention of the defendants in error, contrary to this conclusion, which they claim to find in United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 28 Sup. Ct. 579, 52 L. Ed. 881, is based upon the statement that by the statute 'the patent is * * * to have the same effect against the United States that it would have had if it had been valid in the first place.' But that is merely an emphatic way of saying that the title is made good. It does not import that the collateral effects of fraud in obtaining the patent are purged. The element of bad faith or fraud was expressly excluded. While the Circuit Court of Appeals, as we have stated, rested its de ision wholly upon the limitation statute, yet, under warrant of the claim in the demurrer that the petition does not state a cause of action, it is further argued in this court, that if it be conceded that the right of recovery by the government is not barred, nevertheless such recovery is limited by section 2 of the Act of March 2, 1896 (29 Stat. 42), to the minimum government price for the land, and since the petition shows that this amount was paid to the government when the patent was issued, there can be no recovery. But the act of 1896 deals only with patents 'erroneously issued under a railroad or wagon-road grant' and the limited recovery allowed is restricted to cases where it shall appear that such erroneously patented lands have been sold to bona fide purchasers. That such a statute can have no application to such a case as we are considering is too obvious for comment. This doctrine, that where there are two remedies for the protection of a right one may be barred and the other not, is no novelty in the law. So long ago as 5 Pickering, in Lamb v. Clark, pages 193, 198, it was tersely stated as then familiar doctrine that 'If an injured party has a right to either of two actions, the one he chooses is not barred, because the other, if he had brought it, might have been.' And the principle has frequently been recognized by this and other courts. Lewis v. Hawkins, 23 Wall. 119, 127, 23 L. Ed. 113; Hardin v. Boyd, 113 U.S. 756, 765, 5 Sup. Ct. 771, 28 L. Ed. 1141; Kirkman v. Philips' Heirs, 7 Heisk. (Tenn.) 222, 224; Ivey's Administrator v. Owens, 28 Ala. 641, 649; Ganley v. Troy City Nat. Bank, 98 N. Y. 487, 494. The conclusions we are here announcing are in entire accord with well-considered opinions by two Circuit Courts of Appeal, that of the Eighth Circuit, in United States v. Koleno, 226 Fed. 180, 141 C. C. A. 178, and in Union Coal & Coke Company v. United States (C. C. A.) 247 Fed. 106, and that of the Ninth Circuit in Bistline v. United States, 229 Fed. 546, 144 C. C. A. 6. The judgment of the Circuit Court of Appeals is Reversed.

244.US.100

In a suit 'to enjoin defendant from using or disclosing secret processes of plaintiff's business, defendant, while in effect conceding that he learned them through his former confidential employment by plaintiff, denied that they were secret and insisted on his right to use them as processes well known to the trade and to reveal them to expert witnesses in making his defense. Held, that, during the taking of proofs, defendant might properly be enjoined from disclosing the processes to experts or other Witnesses, the restraint not extending to his own counsel, and that the trial judge in his discretion might reveal them to such persons, at such times, and under such precautions as he might deem necessary in the progress of the case. In such a case the right of the defendant to make a full defense is limited by his duty to abstain from any fraudulent abuse of the trust which was reposed in him by the plaintiff. The word "property," as applied to trade-marks and trade secrets, is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. 224 Fed. Rep. 689, reversed.

This is a bill to prevent the defendant Walter E. Masland from using or disclosing secret processes the knowledge of which was acquired by the defendant while in the plaintiffs' employ. The defendant admits that he intends to manufacture artificial leather, to which some of the plaintiffs' alleged secret processes relate, but denies that he intends to use any inventions, trade secrets, or secret processes of the plaintiffs that he may have learned in any confidential relation, prefacing his denial, however, with the averment that many of the things claimed by the plaintiffs are well known to the trade. A preliminary injunction was refused at first. 216 Fed. 271. But before the final hearing the defendant proposed to employ one or more experts and to make such disclosures to them as the preparation of the defense might require. Thereupon the district court issued a preliminary injunction against disclosing any of the plaintiffs' alleged processes to experts or witnesses during the taking of proofs, but excepting counsel, with leave to move to dissolve the injunction if occasion to consult experts arose. Later a motion to dissolve was denied and the hearing was continued for a decision by the appellate court. 222 Fed. 340. The circuit court of appeals reversed the decree. 140 C. C. A. 229, 224 Fed. 689. Before any further order was entered the writ of certiorari was granted by this court. The case has been considered as presenting a conflict between a right of property and a right to make a full defense; and it is said that if the disclosure is forbidden to one who denies that there is a trade secret, the merits of his defense are adjudged against him before he has a chance to be heard or to prove his case. We approach the question somewhat differently. The word 'property' as applied to trademarks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. Whether the plaintiffs have any valuable secret or not the defendant knows the facts, whatever they are, through a special confidence that he accepted. The property may be denied, but the confidence cannot be. Therefore the starting point for the present matter is not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs, or one of them. These have given place to hostility, and the first thing to be made sure of is that the defendant shall not fraudulently abuse the trust reposed in him. It is the usual incident of confidential relations. If there is any disadvantage in the fact that he knew the plaintiffs' secrets, he must take the burden with the good. The injunction asked by the plaintiffs forbade only the disclosure of processes claimed by them, including the disclosure to experts or witnesses produced during the taking of proofs, but excepting the defendant's counsel. Some broader and ambiguous words that crept into the decree, seemingly by mistake, may be taken as stricken out and left on one side. This injunction would not prevent the defendant from directing questions that should bring out whatever public facts were nearest to the alleged secrets. Indeed, it is hard to see why it does not leave the plaintiffs' rights somewhat illusory. No very clear ground as yet has been shown for going further. But the judge who tries the case will know the secrets, and if, in his opinion and discretion, it should be advisable and necessary to take in others, nothing will prevent his doing so. It will be understood that if, in the opinion of the trial judge, it is or should become necessary to reveal the secrets to others, it will rest in the judge's discretion to determine whether, to whom, and under what precautions, the revelation should be made. Decree reversed and case remanded for further proceedings in conformity with this opinion.

242.US.591

The performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it but as an incident of other entertainment for which the public pays, infringes the exclusive right of the owner of the copyright to perform the work publicly for profit, under the Act of March 4, 1909, c. 320, § 1 (e), 35 Stat. 1075. 221 Fed. Rep. 229; 229 Fed. Rep. 340, reversed.

These two cases present the same question: whether the performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it infringes the exclusive right of the owner of the copyright to perform the work publicly for profit. Act of March 4, 1909, chap. 320, § 1(e), 35 Stat. at L. 1075, Comp. Stat. 1913, § 9517. The last-numbered case was decided before the other and may be stated first. The plaintiff owns the copyright of a lyric comedy in which is a march called 'From Maine to Oregon.' It took out a separate copyright for the march and published it separately. The defendant hotel company caused this march to be performed in the dining room of the Vanderbilt Hotel for the entertainment of guests during meal times, in the way now common, by an orchestra employed and paid by the company. It was held by the circuit court of appeals, reversing the decision of the district court, that this was not a performance for profit within the meaning of the act. 136 C. C. A. 639, 221 Fed. 229. The other case is similar so far as the present discussion is concerned. The plaintiffs were the composers and owners of a comic opera entitled 'Sweethearts,' containing a song of the same title as a leading feature in the performance. There is a copyright for the opera and also one for the song, which is published and sold separately. This the Shanley Company caused to be sung by professional singers, upon a stage in its restaurant on Broadway, accompanied by an orchestra. The district court, after holding that by the separate publication the plaintiffs' rights were limited to those conferred by the separate copyright,—a matter that it will not be necessary to discuss,—followed the decision in 136 C. C. A. 639, 221 Fed. 229, as to public performance for profit. 222 Fed. 344. The decree was affirmed by the circuit court of appeals. 143 C. C. A. 460, 229 Fed. 340. If the rights under the copyright are infringed only by a performance where money is taken at the door, they are very imperfectly protected. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly. The defendants' performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation, or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal. If music did not pay, it would be given up. If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough. Decree reversed.

243.US.97

Section IV, paragraph J, subsection 7, of the Tariff Act of October 3, 1913, c. 16, 38 Stat. 114, 196, after declaring that a discount of five per centum on all duties imposed by the act shall be allowed on such goods as shall be imported in vessels admitted to registration under the laws of the United States, adds, by way of proviso, "that nothing in this subsection shall be so construed as to abrogate or in any manner impair or affect the provisions of any treaty concluded between the United States and any foreign nation." Held, that the grant of the discount is confined to goods in American bottoms, and the effect of the proviso is to respect the treaty privileges with which such a grant would be in conflict, not by extending the grant to goods borne in foreign vessels, but by suspending the grant entirely while such privileges exist. 6 Cust. App. Rep. 291, reversed.

Mr. Thomas M. Lane for respondents in Nos. 149 and 160. Messrs. Albert H. Washburn, George J. Puckhafer, and John A. Kratz for respondents in Nos. 150, 151, and 152. Messrs. Henry J. Webster and John G. Duffy for respondent in No. 153. Mr. Frederick W. Brooks, Jr., for respondents in Nos. 154 and 159. Mr. B. A. Levett for respondents in Nos. 155 and 161. Messrs. Rufus W. Sprague, Jr., Edward P. Sharretts, and Homer S. Cummings for respondents in Nos. 156 and 162. Messrs. James L. Gerry and Edwin R. Wakefield for respondent in No. 157. Mr. Allan B. Brown for respondent in No. 158. [Argument of Counsel from pages 100-105 intentionally omitted] Mr. William L. Wemple as amicus curiae. Messrs. Edward S. Hatch and Walter F. Welch in behalf of interested importers. Mr. Justice Holmes delivered the opinion of the court: In these cases the court of customs appeals has held that by § IV, J, subsec. 7, of the Act of October 3, 1913, chap. 16, 38 Stat. at L. 114, 196, Comp. Stat. 1913, §§ 5291, 5311, merchandise imported in the registered vessels of the United States, or in the registered vessels of other nations entitled by treaty to pay no higher duties than those levied upon vessels of the United States, is granted a discount of 5 per cent upon the duties imposed by the act. Following an enactment that, except as otherwise specially provided in the statute, duties should be levied upon all articles imported from any foreign country at the rates prescribed in the schedules, the above-mentioned subsec. 7 is as follows: 'That a discount of 5 per centum on all duties imposed by this act shall be allowed on such goods, wares, and merchandise as shall be imported in vessels admitted to registration under the laws of the United States: Provided, That nothing in this subsection shall be so construed as to abrogate or in any manner impair or affect the provisions of any treaty concluded between the United States and any foreign nation.' More or less complete reciprocity is established by treaty with nearly all the commercial countries of the world, and the discount of 5 per centum was extended by the court of customs appeals to goods imported in vessels of Belgium, the Netherlands, Great Britain, Austria-Hungary, Germany, Italy, Spain, and Japan. The government contends that while the subsection may indicate a reversal of the policy of reciprocity that has prevailed more or less for the better part of a century (Rev. Stat. § 4228, Comp. Stat. 1913, § 7825), it relies upon future negotiations to make the change effective, and suspends action while the present treaties remain in force, since it could not give the discount to merchandise in American bottoms alone without breaking the numerous treaties to which we have referred. The argument on the other side is that the words of the subsection are satisfied by extending the discount to goods from all the treaty countries; whereas, by the construction contended for by the government, they are emptied of meaning, or at least of present effect. We are of opinion that the government is right; and, as the meaning of the words seems to us to be intelligible upon a simple reading, and to be fortified by the facts preceding their adoption, we shall spend no time upon generalities concerning the principles of interpretation. We have a clear opinion as to what the subsection means if the words are taken in their natural, straightforward, and literal sense. It grants a discount only to goods imported in vessels registered under the laws of the United States, and conditions even that grant upon its not affecting treaties. There is a strong presumption that the literal meaning is the true one, especially as against a construction that is not interpretation, but perversion; that takes from the proviso its ostensible purpose to impose a condition precedent, in order to universalize a grant that purports to be made to a single class, and to do so notwithstanding the express requirement of the statute that specified rates should be paid. Nobody would express such an intent in such words unless in a contest of opposing interests, where the two sides both hoped to profit by an ambiguous phrase. But the section is not ambiguous on its face, and there is no sufficient ground for creating an ambiguity from without, when it is considered that the purpose to favor American shipping was the manifest inducement for putting the subsection in. The tariff bill as it first passed the House granted an exemption in favor of American shipping without the proviso. The clause was struck out by the Senate, and after it had been pointed out that such an enactment would violate many treaties, there was a conference which led to the passage of the subsection in its present form. It seems to us obviously more reasonable to suppose that Congress was content to indicate a policy to be pursued when possible than that, by circuitous and inapt language, it enacted that there should be a general discount from the rates specifically directed to be charged. That the subsection means what it says and no more seems to us still plainer when it is considered that, without going into nice calculation, the benefit to American shipping of such a general discount would be at least problematical and certainly would be relatively small. A grant in present terms, subject to a condition precedent, is familiar to the law, and is not unknown in grants of the present kind. Dunlap v. United States, 173 U. S. 65, 43 L. ed. 616, 19 Sup. Ct. Rep. 310. There was some discussion at the bar and in the court below upon the question whether the treaties operated as laws or were simply executory contracts, but it seems to us superfluous. If the statute bore the meaning attributed to it below, it granted the discount to the nations having treaties of reciprocity, even if those treaties were only contracts. As, in our opinion, the subsection means what it says, it grants the discount to none. Judgments allowing the discount of 5 per centum reversed. Mr. Justice Day is of opinion that the statute was interpreted correctly by the Court of Customs Appeals, and therefore dissents.

243.US.66

For review in this court of a final judgment of the Circuit Court of Appeals directing that an action be dismissed, the writ of error should .go to that court; and its efficacy is not impaired by the circumstances that, before allowance of the writ by that court, the trial court, obeying the mandate, has entered judgment of dismissal and has adjourned for the term before any application has been made to recall its action., When parties in the Circuit Court of Appeals, desiring to shorten the litigation by bringing the merits directly to this court, consent that a final judgment may be made against them in lieu of one remanding the cause for a re-trial, the consent is not a waiver of errors relied on, and a final judgment entered as requested is reviewable here. Foreign owners of steamship lines, common carriers between New York and ports in South Africa, formed a combination, or "conference," to end competition among themselves and suppress it from without. They adopted uniform net tariff rates, and, for the purpose of constraining shippers to use their ships and avoid others, exacted deposits ("primage") of ten per cent. of and in addition to the net freight charges, to be repaid as rebates or "commissions" in. each ca upon the lapse of a period of many moniths, but then only if the shipper, up to the date set for repayment, had used the vessels of the coalition to the exclusion of all competitors. In respect of particular consignments the shipper's right to the refund was made similarly dependent on the "loyalty" of his consignee to vessels of the combination. The hold thus gained on shippers, through the accumulation of their deposits, enabled the coalition to maintain its tariff and custom, in general, while cutting rates with competitors in particular cases by means of "fighting ships." Several important rivals were gathered into the combination from time to time, and a virtual monopoly was effected. Held, that the combination violated the Sherman Act. Common carriers are under a duty to compete, and are subject in a peculiar degree to the policy of the Sherman Act. A combination is not excusable upon the ground that it was induced by good motives and produced good results. The conduct of property embarked in the public service is subject to the policies of the law. The fact that the participants might have withheld the commercial service they rendered, i. e., stayed'out of the business, can not justify an unlawful combination. A combination affecting the foreign commerce of this country and put in operation here, is within the act although formed abroad; and Those who actively participate in managing the affairs of the combination in this country are liable under § 7 although they are not the principals. When more than a reasonable rate is exacted as a result of an unlawful combination, the excess over what was reasonable affords a basis for the damages recoverable under § 7, and whether, and to what extent, such rate was unreasonable are questions determinable by the jury, on proper evidence and instructions. When claims for damages for loss of custom are definitely stated, a charge advising the jury that the burden of proof is on the plaintiff, that they must not allow speculative damages, and that they are not required to guess at amounts but should be able to calculate them from the evidence, sufficiently guards against the danger of supposititious profits being considered as an element of the verdict. Semble, that a general verdict for an amount which equals a particular claim of damages and interest may be assumed to have been responsive to that claim alone, although there were others which were submitted to the jury. Failure to give an instruction upon the burden of proving rates unreasonable, held, at most a harmless error, in view of a painstaking trial and careful instructions upon the estimation of damages. The trial court in its sound discretion may allow a new cause of action to be set up by amendment of the complaint. 190 Fed. Rep. 536, reversed.

A motion to dismiss the writ of error is made, two grounds being urged: (1) The circuit court of appeals was without jurisdiction to allow the writ on March 15, 1912, for the reason that its judgment had become executed and the judgment entered thereon in the circuit court November 24, 1911, had become final and irrevocable before the petition for the writ was filed and the order allowed. (2) The judgment of the circuit court was entered in the form finally adopted at the request of plaintiffs and by their consent, and the errors assigned by plaintiffs were waived by such request and consent. The argument to support the motion is somewhat roundabout. It gets back to the circuit court and charges that because that court had entered judgment on the original mandate and had adjourned for the term without any application having been made to recall that judgment, and because no writ of error to review it was sought, the judgment became a final disposition of the case. We are not concerned with what the circuit court might have done, but only with what the circuit court of appeals did and the jurisdiction it possessed. It received and granted a petition for rehearing, ordered a recall of the mandate previously issued, set aside the judgment of the circuit court, and remanded the case with directions to dismiss the complaint. The plaintiffs did not consent to a judgment against them, but only that, if there was to be such a judgment, it should be final in form instead of interlocutory, so that they might come to this court without further delay. Subsequently a petition for the writ of error was filed and allowed and all further proceedings upon the part of the defendants for the enforcement of the judgment were suspended and stayed until the final determination by this court upon the writ of error, in return to which the record was properly furnished. Atherton v. Fowler, 91 U. S. 143, 23 L. ed. 265. The motion to dismiss is denied. The case in the courts below had a various fate, victory alternating between the parties, but finally resting with defendants. The plaintiffs, dissatisfied, have brought the case here. We are confronted at the outset, in view of the proceedings in the courts below, with contentions as to what questions of law or fact are before us. Notwithstanding two trials and two appeals and reviews in the circuit court of appeals, defendants insist the facts are yet in controversy. We cannot assent. It will be observed from the exerpts from the opinions of the circuit court of appeals that the case was decided upon the proposition of law that the combination charged against defendants was not in unreasonable restraint of trade, and that such character was necessary to make it illegal under the Federal Anti-trust Act. As to the fact of combination and restraint and the means employed both trial and appellate courts concurred, and their conclusion is not shown to be erroneous. There is a contention that 'there is not in the record any direct proof whatever of the terms of any conference or agreement All that appears is that certain steamship All that appears is that certain stamship owners consisting of firms, the identity of whose members is not established, operated steamers in the trade to South African ports without competing with one another.' But more than that appears, and it cannot be assumed that the circulars that were issued and the concerted course of dealing under them were the accidents of particular occasions having no premeditation or subsequent unity in execution. The contention did not prevail with the courts below and we are brought to the consideration of the grounds upon which the circuit court of appeals changed its ruling; that is, that it was constrained to do so by Standard Oil Co. v. United States, 221 U. S. 1, 55 L. ed. 619, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734, and United States v. American Tobacco Co. 221 U. S. 106, 55 L. ed. 663, 31 Sup. Ct. Rep. 632. It is not contended that the facts of those cases or their decision constrained such conclusion, but only that they announced a rule which, when applied to the case at bar, demonstrated the inoffensive character of the combination of defendants. In other words, it is contended that it was decided in those cases that 'the rule of reason' must be applied in every case 'for the purpose of determining whether the subject before the court was within the statute,' to quote the words of the opinion, and, as explained in subsequent cases, it is the effect of the rule that only such contracts and combinations are within the act as, by reason of their intent or the inherent nature of the contemplated acts, prejudice the public interest by unduly restricting competition or unduly obstructing the course of trade. Nash v. United States, 229 U. S. 373, 376, 57 L. ed. 1232, 1235, 33 Sup. Ct. Rep. 780; Eastern States Retail Lumber Dealers Asso. v. United States, 234 U. S. 600, 609, 58 L. ed. 1490, 1498, L.R.A.1915A, 788, 34 Sup. Ct. Rep. 951. But the cited cases did not overrule prior cases. Indeed, they declare that prior cases, aside from certain expressions in two of them,2 or asserted implications from them, were example of the rule and show its thorough adequacy to prevent evasions of the policy of the law 'by resort to any disguise or subterfuge of form,' or the escape of its prohibitions 'by any in direction.' And we have since declared that it cannot 'be evaded by good motives,' the law being 'its own measure of right and wrong, of what it permits or forbids, and the judgment of the courts cannot be set up against it in a supposed accommodation of its policy with the good intention of parties, and, it may be, of some good results.' Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 49, 57 L. ed. 107, 117, 33 Sup. Ct. Rep. 9; International Harvester Co. v. Missouri, 234 U. S. 199, 58 L. ed. 1276, 52 L.R.A.(N.S.) 525, 34 Sup. Ct. Rep. 859. The rule condemns the combination of defendants, indeed, must have a stricter application to it than to the combinations passed on in the cited cases. The defendants were common carriers and it was their duty to compete, not combine; and their duty takes from them palliation, subjects them in a special sense to the policy of the law. Their plan of evasion was simple and as effective as simple. They established a uniform freight rate, including in it what they called a primage charge. This charge was refunded subsequently, but only to shippers who shipped exclusively by the lines of the combining companies, and who had not, directly or indirectly, made or been interested in any shipment by other vessels. And there was the further condition that the rebate was not payable on the goods of any consignee who directly or indirectly imported goods by vessels other than those of the 'conference,'—to use the word employed by the witnesses to describe the combining companies. This loyalty on the part of the consignees was subsequently excused, but loyalty upon the part of shippers was continued to be exacted, and its reward was the refunding of the primage charge. That the combination was effective both the lower courts agreed. Upon its extent they differed, the court of appeals considering that while it was in restraint of trade, the restraint was reasonable and therefore not obnoxious to the law. The court of appeals has not given us its reason for its conclusion. Counsel for defendants say that the Standard Oil and Tobacco Cases furnished the explanation, and that they support what the history of the act establishes, that it was the 'clear intent upon the part of Congress not to condemn contracts and combinations merely because they are in restraint of competition, or merely because they operate to raise the cost of commodities to consumers.' The argument that is employed to sustain the contention is one that has been addressed to this court in all of the cases and we may omit an extended consideration of it. It terminates, as it has always terminated, in the assertion that the particular combination involved promoted trade, did not restrain it, and that it was a beneficial, and not a detrimental, agency of commerce. We have already seen that a combination is not excused because it was induced by good motives or produced good results, and yet such is the justification of defendants. They assert first that they are voluntary agencies of commerce, free to go where they will, not compelled to run from New York to Africa, and that, 'unlike railroads, neither law nor any other necessity fixes them upon particular courses;' and therefore, it is asked, 'who can say that otherwise than under the plan adopted, any of he ships of the defendants would have supplied facilities for transportation of commodities between New York and South Africa during the time referred to in the complaint?' The resultant good of the plan, it is said, was 'regularity of service, with steadiness of rates;' and that 'the whole purpose of the plan under which the defendants acted was to achieve this result.' We may answer the conjectures of the argument by the counter one that if defendants had not entered the trade, others might have done so and been willing to serve shippers without construing them,—been willing to compete against others for the patronage of the trade. And it appears from the testimony that certain lines so competed until they were taken into the defendants' combination. Nor can it be said that under defendants as competitors, or that under competing lines, service would not be regular or rates certain, or, if uncertain, that they would be detrimentally so. That the combination was intended to prevent the competition of the lines which formed it is testified, and it cannot be justified by the conjectures offered by counsel; nor can we say that the success of the trade required a constraint upon shippers or the employment of 'fighting ships' to kill off competing vessels which, tempted by the profits of the trade, used the free and unfixed courses of the seas, to paraphrase the language of counsel, to break in upon defendants' monopoly. And monopoly it was; shippers constrained by their necessities, competitors kept off by the 'fighting ships.' And it finds no justification in the fact that defendants' 'cotributions to trade and commerce' might 'have been withheld.' This can be said of any of the enterprises of capital, and has been urged before to exempt them from regulation even when engaged in business which is of public concern. The contention has long since been worn out and it is established that the conduct of property embarked in the public service is subject to the policies of the law. It is contended that the combination, if there was one, was formed in a foreign country and that, therefore, it was not within the act of Congress; and that, besides, the principals in the combination, and not their agents, were amenable to the law. To this we do not assent. As was said by the circuit court of appeals, the combination affected the foreign commerce of this country and was put into operation here. United States v. Pacific & A. R. & Nav. Co. 228 U. S. 87, 57 L. ed. 742, 33 Sup. Ct. Rep. 443. It, therefore, is within the law, and its managers here were more than simply agents—they were participants in the combination. It is, however, contended that even if it be assumed the facts show an illegal combination, they do not show injury to the plaintiffs by reason thereof. The contention is untenable. Section 7 of the act gives a cause of action to any person injured in his person or property by reason of anything forbidden by the act, and the right to recover threefold the damages by him sustained. The plaintiffs alleged a charge over a reasonable rate and the amount of it. If the charge be true that more than a reasonable rate was secured by the combination, the excess over what was reasonable was an element of injury. Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 436, 51 L. ed. 553, 557, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075. The unreasonableness of the rate and to what extent unreasonable was submitted to the jury, and the verdict represented their conclusion. The next contention is that the fact of combination should have been submitted to the jury, and not decided as a matter of law by the court. We are unable to assent. There was no conflict in the evidence, nothing, therefore, for the jury to pass upon; and the court properly assumed the decision of what was done and its illegal effect. It is next contended that the jury was permitted to consider as elements of damage supposititious profits. The record does not sustain the contention. The profits were not left to speculation. There were different sums stated, resulting from the loss of particular customers, and the fact of their certainty was submitted to the judgment of the jury. They were told that they 'ought not to allow any speculative damages,' that they were not 'required to guess' as to what damages 'plaintiff claimed to have sustained.' And further, that the burden of proof was upon plaintiffs and that, from the evidence, the jury should be able to make a calculation of what the damages were. Besides, plaintiffs alleged an overcharge, and the verdict of the jury was for its amount and interest. Two other contentions are made: (1) The court should have charged the jury that the burden was on the plaintiffs to show that the rates on their shipments were excessive and unreasonable. (2) The court erred in permitting plaintiffs to amend their complaint so as to set up a new cause of action. (1) If there was error in this, its effect is not appreciable. The record shows a most painstaking trial of the case on the part of counsel and the court, a full exposition of all of the elements of judgment, and careful instructions of the court for their estimate. It would be going very far to reverse a case upon the effect of the bare abstraction asserted by the contention, even granting it could be sustained. (2) Permitting the amendment of the complaint was not an abuse of the discretion which a court necessarily possesses. The above are the main contentions of defendants. They make, besides, a contention comprehensive of all of the rulings against them; but to give a detailed review of such rulings would require a reproduction of the record, and we therefore only say that they have been given attention and no prejudicial error is discovered in them. Judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed.

243.US.247

A judgment of the.District Court refusing the writ of habeas corpus is appealable directly to this court under § 238 of the Judicial Code if the petition raises constitutional or treaty questions. A judgment of the Circuit Court of Appeals affirming a judgm ent of the District Court refusing habeas corpus is not appealable to this court under § 241 of the Judicial Code on the ground that constitutional and treaty questions are involved, since no pecuniary value is in*c ontroversy. The provision made by Rev. Stats., § 764, as amended by the Act of March 3, 1885, c. 353, 23 Stat. 437, for review in this court of the appellate judgments of the Circuit Courts in habeas corpus cases, was necessarily repealed by the Judiciary Act of March 3, 1891 (see §§ 4, 5, 6 and 14), and § 289 of the Judicial Code abolishing the Circuit Courts. Appeal to review 232 Fed. Rep. 819, dismissed.

Appellant, being in the custody of the United States marshal for the district of Massachusetts, under an indictment found in that district for a violation of the Act of May 30, 1908, chap. 234, 35 Stat. at L. 554, now §§ 232-235 of the Criminal Code (chap. 321, 35 Stat. at L. 1088, 1134, Comp. Stat. 1913, §§ 10,165, 10,402), in unlawfully transporting explosives from New York through Massachusetts to Vanceboro, Maine, petitioned the district court for a writ of habeas corpus upon the ground that the order of commitment was in violation of his rights under the Constitution and laws of the United States and existing treaties between the United States and the German Empire and the Kingdom of Prussia, for that (among other reasons) appellant is an officer of the army of the German Empire; that a state of war, recognized by the President of the United States in an official proclamation, exists between Great Britain and Germany; that appellant is accused of destroying a part of the international bridge in the township of McAdam, Province of New Brunswick, and Dominion of Canada; that the charge of carrying explosives illegally, upon which he is held in custody, is, if true, inseparably connected with the destruction of that bridge; and that 'he is a subject and citizen of the Empire of Germany and domiciled therein, and is being held in custody for the aforesaid act, which was done under his right, title, authority, privilege, protection, and exemption claimed under his commission as said officer.' After a hearing, the district court refused the writ of habeas corpus and dismissed the petition (223 Fed. 549), and an appeal to the circuit court of appeals for the first circuit resulted in an affirmance of the judgment (147 C. C. A. 13, 232 Fed. 819). An appeal from the judgment of affirmance to this court was then allowed. There is a motion to dismiss the appeal, and this must be granted. Assuming, as we do, that the petition for habeas corpus raised questions involving the application of the Constitution of the United States or the construction of a treaty made under its authority, appellant might have taken a direct appeal from the district court to this court under § 238, Judicial Code (Act of March 3, 1911, chap. 231, 36 Stat. at L. 1087, 1157, Comp. Stat. 1913, §§ 968, 1215), Frank v. Mangum, 237 U. S. 309, 59 L. ed. 969, 35 Sup. Ct. Rep. 582; Kelly v. Griffin, 241 U. S. 6, 60 L. ed. 861, 36 Sup. Ct. Rep. 487; Bingham v. Bradley, 241 U. S. 511, 60 L. ed. 1136, 36 Sup. Ct. Rep. 634. Having appealed to the circuit court of appeals, he cannot bring his case here except under some provision of law allowing an appeal from that court to this. Appeals of this character are regulated by § 241, Judicial Code (36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1218), and are confined to cases 'where the matter in controversy shall exceed one thousand dollars, besides costs.' It long has been settled that the jurisdiction conferred by Congress upon any court of the United States in a case where the matter in controversy exceeds a certain sum of money does not include cases where the rights of the parties are incapable of being valued in money, and therefore excludes habeas corpus cases. Kurtz v. Moffitt, 115 U. S. 487, 498, 29 L. ed. 458, 460, 6 Sup. Ct. Rep. 148; Lau Ow Bew v. United States, 144 U. S. 47, 58, 36 L. ed. 340, 344, 12 Sup. Ct. Rep. 517; Cross v. Burke, 146 U. S. 82, 88, 36 L. ed. 896, 898, 13 Sup. Ct. Rep. 22; Whitney v. Dick, 202 U. S. 132, 135, 50 L. ed. 963, 964, 26 Sup. Ct. Rep. 584; Healy v. Backus, 241 U. S. 655, 60 L. ed. 1224, 36 Sup. Ct. Rep. 726. Appellant seeks to sustain his appeal under §§ 763 and 764 of the Revised Statutes.1 They gave a right of appeal from the district court to the circuit court in two classes of habeas corpus cases, and an appeal from the circuit court to this court in cases of a class that includes the present case. Section 764 was amended by act of March 3, 1885, chap. 353, 23 Stat. at L. 437, by extending the right of appeal from the circuit courts to this court so as to include the remaining cases described in the preceding section. But by § 4 of the Act of March 3, 1891, establishing circuit courts of appeals (26 Stat. at L. 827, chap. 517, Comp. Stat. 1913, § 1646), all appellate jurisdiction was taken from the circuit courts, and by §§ 5 and 6 it was distributed between this court and the circuit courts of appeals. By § 14, all acts and parts of acts relating to appeals or writs of error, inconsistent with the provisions for review in §§ 5 and 6, were repealed. Section 5 preserved a direct appeal from the district court to this court in cases involving the construction or application of the Constitution of the United States, or the validity or construction of any treaty made under its authority. In Cross v. Burke, 146 U. S. 82, 88, 36 L. ed. 896, 898, 13 Sup. Ct. Rep. 22, it was pointed out that the effect of this was that appeals from the decrees of the circuit court on habeas corpus could no longer be taken to this court except in cases of the class mentioned in the 5th section of that act. And it was so held in Re Lennon, 150 U. S. 393, 399, 37 L. ed 1120, 1122, 14 Sup. Ct. Rep. 123. Even were it otherwise, an appeal from the circuit court to this court was not the same as an appeal from the circuit court of appeals to this court. And the abolishment of the circuit courts by § 289, Judicial Code [36 Stat. at L. 1167, chap. 231, Comp. Stat. 1913, § 1266], removed the last vestige of authority for an appeal to this court under § 764, Rev. Stat. Appeal dismissed.

246.US.128

ors of the use of the large type of button-head upon an oil-burning engine. Nor can we agree with the contention of the plaintiff in error that so long as the large button-head had not been disapproved by the government inspector such fact is conclusive of the sufficiency of the type in use. We find nothing in the Boiler Inspection Act to warrant the conclusion that there is no liability for an unsafe locomotive, in view of the provisions of § 2 of the act, because some particular feature of construction, which has been found unsafe, has not been disapproved by the federal boiler inspector. Other errors are assigned; so far as they are open here we have examined these assignments and find in none of them reason for the reversal of the judgment of the Supreme Court of Washington, and that judgment is Affirmed. the registry be distributed among several solicitors in proportion to their respective services in the cae, past payments to be considered, and retained control of the suit and fund to make and carry out the apportionment. Held, that the death of one of the solicitors suspended the proceedings until someone legally capable of asserting and defending his interest could be substituted. Substitution, formerly effected by a bill of revivor, or a bill of that nature, is now ordered upon motion under new Equity Rule 45. Petition dismissed.

It now appears that the petition gives an inadmissible coloring to the matter in respect of which it seeks relief. We say this because the petition implies that the court did not consider but summarily rejected the public administrator's motion for a revivor in his name, whereas in fact the court heard oral argument on the motion, gave time for filing and received briefs thereon, and ultimately denied the motion for reasons given in a memorandum opinion. The petition makes no reference to this; neither does it mention the conflicting motion by the temporary administratrix which was heard at the same time, dealt with in the same memorandum opinion and granted by the same order that denied the public administrator's motion. These matters and the subsequent proceedings are all brought to our attention by the return, the accuracy of which is not questioned. When the unwarranted coloring of the petition is put aside and what actually was done is considered in its true light, it is manifest that the situation is not one in which a writ of mandamus will lie. Of course, the death of one of the parties having an interest in the fund operated to suspend the proceedings for its apportionment until some one legally capable of asserting and defending that interest should either come or be brought into the suit in the place of the deceased. Formerly such a substitution was effected through a bill of revivor or a bill of that nature (210 U. S. 526, 33 Sup. Ct. xxxiv, rule 56; Story's Equity Pleadings [9th Ed.] §§ 354, 356, 364); but the new equity rules provide that the court may, 'upon motion, order the suit to be revived by the substitution of the proper parties' (226 U. S. 661, 33 Sup. Ct. xxx, rule 45). Whether a particular applicant for substitution is the proper party is a question for the court to determine, just as is the question whether a particular suit is brought by or against the proper party. In either case the question is to be resolved by applying recognized legal and equitable principles to the facts in hand; in other words, by an exercise of the judicial function. If the suit be one which may be revived, as where the cause of action or claim in controversy survives, revivor in the name of the proper party is a matter of right, and, if it be denied, the denial may be reviewed and corrected upon appeal. Clarke v. Mathewson, 12 Pet. 164, 9 L. Ed. 1041; Terry v. Sharon, 131 U. S. 40, 46, 9 Sup. Ct 705, 33 L. Ed. 94; Credits Commutation Co. v. United States, 177 U. S. 311, 315-316, 20 Sup. Ct. 636, 44 L. Ed. 782; Mackaye v. Mallory, 79 Fed. 1, 2, 24 C. C. A. 420; Minot v. Mastin, 95 Fed. 734, 739, 37 C. C. A. 234; United States Trust Co. v. Chicago Terminal Co., 188 Fed. 292, 296, 110 C. C. A. 270; Western Union Telegraph Co. v. United States & Mexican Trust Co., 221 Fed. 545, 552, 137 C. C. A. 113. When the two conflicting motions for revivor were presented it devolved upon the court to consider and decide which, if either, of the applicants was entitled to substitution. A full hearing was had and in regular course the court ruled that one applicant was and the other was not the proper party, and then entered an order reviving the suit accordingly. That was a judicial act done in the exercise of a jurisdiction conferred by law, and even if erroneous, was not void or open to collateral attack, but only subject to correction upon appeal. 'The accustomed office of a writ of mandamus, when directed to a judicial officer, is to compel an exercise of existing jurisdiction, but not to control his decision. It does not lie to compel a reversal of a decision, either interlocutory or final, made in the exercise of a lawful jurisdiction, especially where in regular course the decision may be reviewed upon a writ of error or an appeal.' Ex parte Roe, 234 U. S. 70, 73, 34 Sup. Ct. 722, 723 (58 L. Ed. 1217); In re Rice, 155 U. S. 396, 403, 15 Sup. Ct. 149, 39 L. Ed. 198; In re Key, 189 U. S. 84, 23 Sup. Ct. 624, 47 L. Ed. 720; Ex parte Park Square Automobile Station, 244 U. S. 412, 37 Sup. Ct. 732, 61 L. Ed. 1231. Upon the present petition therefore we cannot consider the merits of the ruling upon the conflicting motions or the relative bearing of the subsequent proceedings whereby the widow in her individual right was substituted as the successor in interest and title of the deceased. Rule discharged; petition dismissed.

244.US.147

The liabilities and obligations of interstate railroad carriers to make compensation for personal injuries 'suffered by their employees while engaged in interstate commerce are regulated both- inclusively and exclusively by the Federal Employers' Liability Act; and, Congress having thus fully covered the subject, no room exists for state regulation, even in respect of injuries occurring without fault, as to which the federal act provides no remedy. Therefore, an award made under the New York Workmen's Compensation Act for injuries not attributable to negligence, which were received by an employee of an interstate railroad carrier while both were engaged in interstate commerce, cannot be upheld. 168 App. Div. 351; 216 N. Y. 284, reversed.

While in the service of a railroad company in the state of New York, James Winfield sustained a personal injury whereby he lost the use of an eye. At that time the railroad company was engaging in interstate commerce as a common carrier and Winfield was employed by it in such commerce. The injury was not due to any fault or negligence of the carrier, or of any of its officers, agents, or employees, but arose out of one of the ordinary risks of the work in which Winfield was engaged. He was a section laborer assisting in the repair of the carrier's main track, and while tamping across ties struck a pebble which chanced to rebound and hit his eye. Following the injury he sought compensation therefor from the carrier under the Workmen's Compensation Law of the state1 and an award was made to him by the state Commission, one member dissenting. The carrier appealed and the award was affirmed by the appellate division of the supreme court, two judges dissenting (168 App. Div. 351, 153 N. Y. Supp. 499), and also by the court of appeals (216 N. Y. 284, L.R.A. ——, —, 110 N. E. 614, Ann. Cas. 1916A, 817, 10 N. C. C. A. 916). Before the Commission and in the state courts the carrier insisted that its liability or obligation and the employee's right were governed exclusively by the Employers' Liability Act of Congress (chap. 149, 35 Stat. at L. 65, Comp. Stat. 1916, § 8657; chap. 143, 36 Stat. at L. 291), and therefore that no award could be made under the law of the state. That insistence is renewed here. It is settled that under the commerce clause of the Constitution Congress may regulate the obligation of common carriers and the rights of their employees arising out of injuries sustained by the latter where both are engaged in interstate commerce; and it also is settled that when Congress acts upon the subject all state laws covering the same field are necessarily superseded by reason of the supremacy of the national authority.2 Congress acted upon the subject in passing the Employers' Liability Act, and the extent to which that act covers the field is the point in controversy. By one side it is said that the act, although regulating the liability or obligation of the carrier and the right of the employee where the injury results in whole or in part from negligence attributable to the carrier, does not cover injuries occurring without such negligence, and therefore leaves that class of injuries to be dealt with by state laws; and by the other side it is said that the act covers both classes of injuries and is exclusive as to both. The state decisions upon the point are conflicting. The New York court in the present case and the New Jersey court in Winfield v. Erie R. Co. 88 N. J. L. 619, 96 Atl. 394, hold that the act relates only to injuries resulting from negligence, while the California court in Smith v. Industrial Acci. Commission, 26 Cal. App. 560, 147 Pac. 600, and the Illinois court in Staley v. Illinois C. R. Co. 268 Ill. 356, L.R.A.1916A, 450, 109 N. E. 342, hold that it has a broader scope and makes negligence a test,—not of the applicability of the act, but of the carrier's duty or obligation to respond pecuniarily for the injury. In our opinion the latter view is right and the other wrong. Whether and in what circumstances railroad companies engaging in interstate commerce shall be required to compensate their employees in such commerce for injuries sustained therein are matters in which the nation as a whole is interested, and there are weighty considerations why the controlling law should be uniform and not change at every state line. Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 378, 379, 37 L. ed. 772, 777, 778, 13 Sup. Ct. Rep. 914. It was largely in recognition of this that the Employers' Liability Act was enacted by Congress. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 51, 56 L. ed. 327, 346, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. It was drafted and passed shortly following a message from the President advocating an adequate national law covering all such injuries, and leaving to the action of the several states only the injuries occurring in intrastate employment. Cong. Rec., 60th Cong., 1st Sess., 1347. And the reports of the congressional committees having the bill in charge disclose, without any uncertainty, that it was intended to be very comprehensive, to withdraw all injuries to railroad employees in interstate commerce from the operation of varying state laws, and to apply to them a national law having a uniform operation throughout all the states. House Report No. 1386 and Senate Report No. 460, 60th Cong. 1st Sess. Thus, in the House Report it is said: 'It [the bill] is intended in its scope to cover all commerce to which the regulative power of Congress extends. . . . by this bill it is hoped to fix a uniform rule of liability throughout the Union with reference to the liability of common carriers to their employees. . . . A Federal statute of this character will supplant the numerous state statutes on the subject so far as they relate to interstate commerce. It will create uniformity throughout the Union, and the legal status of such employer's liability for personal injuries, instead of being subject to numerous rules, will be fixed by one rule in all the states.' True, the act does not require the carrier to respond for injuries occurring where it is not chargeable with negligence, but this is because Congress, in its discretion, acted upon the principle that compensation should be exacted from the carrier where, and only where, the injury results from negligence imputable to it. Every part of the act conforms to this principle, and no part points to any purpose to leave the states free to require compensation where the act withholds it. By declaring in § 1 that the carrier shall be liable in damages for any injury to the employee 'resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track' [35 Stat. at L. 65 chap. 149, Comp. Stat. 1916, § 8657], etc.,3 the act plainly shows, as was expressly held in Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 501, 58 L. ed. 1062, 1068, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 638, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834, that it was the intention of Congress to make negligence the basis of the employee's right to damages, and to exclude responsibility of the carrier to the employee for an injury not resulting from its negligence or that of its officers, agents, or other employees. The same principle is seen also in § 3, which requires that where the carrier and the employee are both negligent, the recovery shall be diminished in proportion to the employee's contribution to the total negligence; and in § 4, which regards injuries arising from risks assumed by the employee as among those for which the carrier should not be made to respond. The committee reports upon the bill show that this principle was adopted deliberately, notwithstanding there were those within and without the committees who looked with greater favor upon a different principle which puts negligence out of view and regards the employee as entitled to compensation wherever the injury is an incident of the service in which he is employed. A few years after the passage of the act a legislative commission drafted and the Committees on the Judiciary in the two Houses of Congress favorably reported a bill substituting the latter principle for the other (Senate Report No. 553, 62d Cong., 2d Sess., House Report No. 1441, 62d Cong., 3d Sess.), but that bill did not become a law. That the act is comprehensive and also exclusive is distinctly recognized in repeated decisions of this court. Thus, in Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 576, 57 L. ed. 355, 363, 33 Sup. Ct. Rep. 135, Ann. Cas. 1914B, 134, and other cases, it is pointed out that the subject which the act covers is 'the responsibility of interstate carriers by railroad to their employees injured in such commerce;' in Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 66, 67, 57 L. ed. 417, 419, 420, 33 Sup. Ct. Rep. 192, Ann. Cas. 1914C, 176, it is said that 'we may not piece out this act of Congress by resorting to the local statutes of the state of precedure or that of the injury;' that by it 'Congress has undertaken to cover the subject of the liability of railroad companies to their employees injured while engaged in interstate commerce,' and that it is 'paramount and exclusive;' in North Carolina R. Co. v. Zachary, 232 U. S. 248, 256, 58 L. ed. 591, 594, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159, 9 N. C. C. A. 109, it is held that where it appears that the injury occurred while the carrier was engaged and the employee employed in interstate commerce, the Federal act governs to the exclusion of the state law; in Seaboard Air Line R. Co. v. Horton, supra, pp. 501, 503, it is said not only that Congress intended 'to exclude responsibility of the carrier to its employees' in the absence of negligence, but that it is not conceivable that Congress 'intended to permit the legislatures of the several states to determine the effect of contributory negligence and assumption of risk, by enacting statutes for the safety of employees, since this would in effect relegate to state control two of the essential factors that determine the responsibility of the employer;' and in Wabash R. Co. v. Haynes, 234 U. S. 86, 89, 58 L. ed. 1226, 1230, 34 Sup. Ct. Rep. 729, 6 N. C. C. A. 224, it is said: 'Had the injury occurred in interstate commerce, as was alleged, the Federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the state; in other words, the Federal act would have been exclusive in its operation, not merely cumulative [citing cases]. On the other hand, if the injury occurred outside of interstate commerce, the Federal act was without application and the law of the state was controlling.' The act is entitled, 'An Act Relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Cases,' and the suggestion is made that the words 'in certain cases' require that the act be restrictively construed. But we think these words are intended to do no more than to bring the title into reasonable accord with the body of the act, which discloses in exact terms that it is not to embrace all cases of injury to the employees of such carriers, but only such as occur while the carrier is engaging and the employee is employed in 'commerce between any of the several states, etc. See Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141. Only by disturbing the uniformity which the act is designed to secure and by departing from the principle which it is intended to enforce can the several states require such carriers to compensate their employees for injuries in interstate commerce occurring without negligence. But no state is at liberty thus to interfere with the operation of a law of Congress. As before indicated, it is a mistake to suppose that injuries occurring without negligence are not reached or affected by the act, for, as is said in Prigg v. Pennsylvania, 16 Pet. 539, 617, 10 L. ed. 1060, 1089, 'if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it.' Thus the act is as comprehensive of injuries occurring without negligence, as to which class it impliedly excludes liability, as it is of those as to which it imposes liability. In other words, it is a regulation of the carriers' duty or obligation as to both. And the reasons which operate to prevent the states from dispensing with compensation where the act requires it equally prevent them from requiring compensation where the act withholds or excludes it. It follows that, in the present case, the award under the state law cannot be sustained. Judgment reversed. I dissent from the opinion of the court; and the importance of the question involved induces me to state the reasons. By the Employers' Liability Act of April 22, 1908 [35 Stat. at L. 65, chap. 149, Comp. Stat. 1916, § 8657], Congress provided, in substance, that railroads engaged in interstate commerce shall be liable in damages for their negligence resulting in injury or death of employees while so engaged. The majority of the court now holds that by so doing Congress manifested its will to cover the whole filed of compensation or relief for injuries suffered by railroad employees engaged in interstate commerce; or, at least, the whole field of obligation of carriers relating thereto; and that it thereby withdrew the subject wholly from the domain of state action. In other words, the majority of the court declares that Congress, by passing the Employers' Liability Act, prohibited states from including within the protection of their general Workmen's Compensation Laws employees who, without fault on the railroad's part, are injured or killed while engaged in interstate commerce; although Congress itself offered them no protection. That Congress could have done this is clear. The question presented is: Has Congress done so? Has Congress so willed? The Workmen's Compensation Law of New York here in question has been declared by this court to be among those which 'bear so close a relation to the protection of the lives and safety of those concerned that they properly may be regarded as coming within the category of police regulations.' New York C. R. Co. v. White, 243 U. S. 188, 207, 61 L. ed. 667, 37 Sup. Ct. Rep. 247. And this court has definitely formulated the rules which should govern in determining when a Federal statute regulating commerce will be held to supersede state legislation in the exercise of the police power. These rules are: 1. 'In conferring upon Congress the regulation of commerce, it was never intended to cut the states off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.' Sherlock v. Alling, 93 U. S. 99, 103, 23 L. ed. 819, 820. 2. 'If the purpose of the act cannot otherwise be accomplished,—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect, the state law must yield to regulation of Congress within the sphere of its delegated power. . . . 'But the intent to supersede the exercise by the state of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state.' Savage v. Jones, 225 U. S. 501, 533, 56 L. ed. 1182, 1194, 32 Sup. Ct. Rep. 715. 3. 'The question must, of course, be determined with reference to the settled rule that a statute enacted in execution of a reserved power of the state is not to be regarded as inconsistent with an act of Congress passed in the execution of a clear power under the Constitution, unless the repugnance or conflict is so direct and positive that the two acts cannot be reconciled or stand together.' Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 623, 42 L. ed. 878, 881, 18 Sup. Ct. Rep. 488. Guided by these rules and the cases in which they have been applied4 we endeavor to determine whether Congress, in enacting the Employers' Liability Act, intended to prevent states from entering the specific field of compensation for injuries to employees arising without fault on the railroad's part, for which Congress made no provision. To ascertain the intent we must look, of course, first at what Congress has said; then at the action it has taken, or omitted to take. We look at the words of the statute to see whether Congress has used any which in terms express that will. We inquire whether, without the use of explicit words, that will is expressed in specific action taken. For Congress must be presumed to have intended the necessary consequences of its action. And if we find that its will is not expressed, or is not clearly expressed, either in words or by specific action, we should look at the circumstances under which the Employers' Liability Act was passed; look on the one hand, at its origin, scope, and purpose; and, on the other, at the nature, methods, and means of state Workmen's Compensation Laws. If the will is not clearly expressed in words, we must consider all these in order to determine what Congress intended. First: As to words used: The act contains no words expressing a will by Congress to cover the whole field of compensation or relief for injuries received by or for death of such employees while engaged in interstate commerce; or the whole field of carriers' obligations in relation thereto. The language of that act, so far as it indicates anything in this respect, points to just the contrary. For its title is: 'An Act Relative to the Liability of Common Carriers by Railroad in Certain Cases.'5 Second: As to specific action taken: The power exercised by Congress is not such that, when exercised, it necessarily excludes the state action here under consideration. It would obviously have been possible for Congress to provide in terms, that wherever such injuries or death result from the railroad's negligence, the remedy should be sought by action for damages; and wherever injury or death results from causes other than the railroad's negligence, compensation may be sought under the Workmen's Compensation Laws of the states. Between the Federal and the state law there would be no conflict whatsoever. They would, on the contrary, be complementary. Third: As to origin, purpose, and scope of the Employers' Liability Act and the nature, methods, and means of state Workmen's Compensation Laws: The facts are of common knowledge. Do they manifest that, by entering upon one section of the field of indemnity or relief for injuries or death suffered by employees engaged in interstate commerce, Congress purpose to occupy the whole field? (A) The origin of the Federal Employers' Liability Act. By the common law as administered in the several states, the employee, like every other member of the community, was expected to bear the risks necessarily attendant upon life and work, subject only to the right to be indemnified for any loss inflicted by wrongdoers. The employer, like every other member of the community, was in theory liable to all others for loss resulting from his wrongs; the scope of his liability for wrongs being amplified by the doctrine of respondeat superior. This legal liability, which, in theory, applied between employer and employee as well as between others, came, in course of time, to be seriously impaired in practice. The protection it provided employees seemed to wane as the need for it grew. Three defenses—the doctrines of fellow servant's negligence, of assumption of risk, and of contributory negligence, rose and flourished. When applied to huge organizations and hazardous occupations, as in railroading, they practically abolished the liability of employers to employees; and in so doing they worked great hardship and apparent injustice. The wrongs suffered were flagrant; the demand for redress insistent; and the efforts to secure remedial legislation widespread. But the opponents were alert, potent, and securely entrenched. The evils of the fellow-servant rule as applied to railroads were recognized as early as 1856, when Georgia passed the first law abolishing the defense. Between the passage of that act and the passage of the first Federal Employers' Liability Act (Act of June 11, 1906, 34 Stat. at L. 232, chap. 3073), fifty years elapsed. In those fifty years only four more states had wholly abolished the defense of fellow servant's negligence. Furthermore, in only one state had a statute been passed making recovery possible where the employee had been guilty of contributory negligence.6 Meanwhile, the number of accidents to railroad employees had become appalling. In the year 1905-06 the number killed while on duty was 3,807, and the number injured 55,524.7 The promoters of remedial action, unable to overcome the efficient opposition presented in the legislatures of the several states, sought and secured the powerful support of the President.8 Congress was appealed to and used its power over interstate commerce to afford relief. The promotion of safety was, of course, referred to in the committee's report as justifying congressional action; but the moving cause for the Federal Employers' Liability Act was not the desire to promote safety or to secure uniformity, as in standardizing equipment by the Safety Appliance Acts.9There was, in the nature of things, no more reason for providing a Federal remedy for negligent injury to employees, than there would have been for providing such a remedy for negligent injury to passengers or to other members of the public. The Federal Employers' Liability Act was, in a sense, emergency legislation. The circumstances attending its passage were such as to preclude the belief that thereby Congress intended to deny to the states the power to provide for compensation or relief for injuries not covered by it. (B) The scope of the Federal Employers' Liability Act. (1) The act leaves uncovered a large part of the injuries which result from the railroads' negligence. The decision of this court in the first Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141, had declared that Congress lacked power to legislate in respect to any injuries occurring otherwise than to employees engaged in interstate commerce. Later decisions disclose how large a part of the injuries resulting from the railroads' negligence are thus excluded from the operation of the Federal law. For the act was held to apply only to those directly engaged in interstate commerce. This excludes not only those engaged in intrastate commerce, but also the many who—while engaged on work for interstate commerce, as in repairing engines or cars—are not directly engaged in it. Likewise it excludes employees who, though habitually engaged directly in interstate commerce, happen to be injured or killed through the railroads' negligence, while performing some work in intrastate commerce.10 (2) The act leaves uncovered all of the injuries which result otherwise than from the railroad's negligence, though occurring when the employee is engaged directly in interstate commerce. The scope of the act is so narrow as to preclude the belief that thereby Congress intended to deny to the states the power to provide compensation or relief for injuries not covered by it. (C) The purpose of the Employers' Liability Act. The facts showing the origin and scope of the act discussed above indicate also its purpose. It was to end the denial of the right to damages for injuries due to the railroads' negligence,—a right denied under judicial decisions through the interposition of the defenses of fellow servant, assumption of risk, and contributory negligence. It was not the purpose of the act to deny to the states the power to grant the wholly new right to protection or relief in the case of injuries suffered otherwise than through fault of the railroads. The Federal Employers' Liability Act was, in no respect, a departure from the individualistic basis of right and of liability. It was, on the contrary, an attempt to enforce truly and impartially the old conception of justice as between individuals. The common-law liability for fault was to be restored by removing the abuses which prevented its full and just operation. The liability of the employer under the Federal act, as at common law, is merely a penalty for wrongdoing. The remedy assured to the employee is merely a more efficient means of making the wrongdoer indemnify him whom he has wronged. This limited purpose of the Employers' Liability Act precludes the belief that Congress intended thereby to deny to the states the power to provide compensation or relief for injuries not covered by the act. (D) The nature of Workmen's Compensation Acts. In the effort to remove abuses, a study had been made of facts, and of the world's experience in dealing with industrial accidents. That study uncovered as fiction many an assumption upon which American judges and lawyers had rested comfortably. The conviction became widespread that our individualistic conception of rights and liability no longer furnished an adequate basis for dealing with accidents in industry. It was seen that no system of indemnity dependent upon fault on the employers' part could meet the situation, even if the law were perfected and its administration made exemplary. For, in probably a majority of cases of injury, there was no assignable fault; and in many more it must be impossible of proof. It was urged: Attention should be directed, not to the employer's fault, but to the employee's misfortune. Compensation should be general, not sporadic; certain, not conjectural; speedy, not delayed; definite as to amount and time of payment; and so distributed over long periods as to insure actual protection against lost or lessened earning capacity. To a system making such provision, and not to wasteful litigation, dependent for success upon the coincidence of fault and the ability to prove it, society, as well as the individual employee and his dependents, must look for adequate protection. Society needs such a protection as much as the individual; because ultimately society must bear the burden, financial and otherwise, of the heavy losses which accidents entail. And since accidents are a natural, and in part an inevitable, concomitant of industry as now practised, society, which is served thereby, should in some way provide the protection. To attain this end, co-operative methods must be pursued; some form of insurance,—that is, some form of taxation. Such was the contention which has generally prevailed. Thus, out of the attempt to enforce individual justice grew the attempt to do social justice. But when Congress passed the Employers' Liability Act of April 22, 1908 [35 Stat. at L. 65, chap. 149, Comp. Stat. 1916, § 8657], these truths had gained little recognition in the United States. Not one of the thirty-seven states or territories which now have Workmen's Compensation Laws had introduced the system. Yet the conception and value of compensation laws was not unknown to Congress. It then had under consideration the first Compensation Law for Federal Employees which was enacted in the following month (Act of May 30, 1908, 35 Stat. at L. 556, chap. 236). The need of its speedy passage had been called to the attention of Congress by the President in the same special message which urged the passage of this Employers' Liability Act. Can it be contended that Congress, by simply passing the Employers' Liability Act, prohibited the states from providing in any way for the maintenance of such employees (and their dependents) for whose injuries a railroad, innocent of all fault, could not be called upon to make indemnity under that act? It is the state which is both primarily and ultimately concerned with the care of the injured and of those dependent upon him, even though the accident may occur while the employee is engaged directly in interstate commerce. Upon the state falls the financial burden of dependency, if provision be not otherwise made. Upon the state falls directly the far heavier burden of the demoralization of its citizenry and of the social unrest which attend destitution and the denial of opportunity. Upon the state also rests, under our dual system of government, the duty owed to the individual, to avert misery and promote happiness so far as possible. Surely we may not impute to Congress the will to deny to the states the power to perform either this duty to humanity or their fundamental duty of self-preservation. And if the states are left free to provide compensation, what is there in the Employers' Liability Act to show an intent on the part of Congress to deny to them the power to make the provision by raising the necessary contributions, in the first instance, through employers? (E) Methods and means of Workmen's Compensation Laws. The principle underlying Workmen's Compensation Laws is the same in all the states. The methods and means by which that principle is carried out vary materially. The principle is that of insurance, the premiums to which are contributed by employers generally. How the insurance fund shall be raised and administered; what the scale of compensation or relief shall be; how the contributing groups of employers shall be formed; whether or not a state fund shall be created; whether the individual employer shall be permitted to become a self-insurer: whether he shall be permitted to deal directly with the employee in making settlement of the compensation to be awarded; on all these questions the laws of the several states do and properly may differ radically. What methods and means the state shall adopt in order to provide compensation for injuries to citizens or residents where Congress has left it free to legislate rests (subject to constitutional limitations) wholly within the judgment of the state. It might conclude, in view of the hazard involved, that no one should engage in the occupation of railroading without providing against the financial consequences of accidents through contributing an adequate amount to an accident insurance fund. It might conclude that it was wise to make itself the necessary contributions to such a fund, out of moneys raised from general taxation. Or it might conclude, as the state of Washington did, that the fairest and wisest form of taxation for the purpose was to impose upon the employer directly the duty of making the required contributions,—relying upon the laws of trade to effect, through the medium of transportation charges, an equitable distribution of the burden. The method last suggested is pursued in substance also by the state of New York. In its essence the laws of the states are the same in this respect, as is shown in Mountain Timber Co. v. Washington, 243 U. S. 219, ante, 260, 37 Sup. Ct. Rep. 260. It is misleading to speak of the new obligation of the employer to contribute to compensation for injuries to workmen as an increase of the 'employer's liability.' It is not a liability for a violation of a duty. It is a direct—a primary obligation in the nature of a tax. And the right of the employee is as free from any suggestion of wrong done to him as the new right granted by Mothers' Pension Laws. (F) Federal and state legislation are not in conflict. The practical difficulty of determining in a particular case, according to presence or absence of railroad fault, whether indemnity is to be sought under the Federal Employers' Liability Act or under a state compensation law, affords, or course, no reason for imputing to Congress the will to deny to the states power to afford relief through such a system. The difficulty and uncertainty is, at worst, no greater than that which now exists in so many cases where it is necessary to determine whether the employee was, at the time of the accident, engaged in interstate or intrastate commerce.11 Expedients for minimizing inherent difficulties will doubtless be found by experience. All the difficulties may conceivably be overcome in practice. Or they may prove so great as to lead Congress to repeal the Federal Employers' Liability Act and leave to the states (which alone can deal comprehensively with it), the whole subject of indemnity and compensation for injuries to employees, whether engaged in interstate or intrastate commerce, and whether such injuries arise from negligence or without fault of the employer. We are admonished also by another weighty consideration not to impute to Congress the will to deny to the states this power. The subject of compensation for accidents in industry is one peculiarly appropriate for state legislation. There must, necessarily, be great diversity in the conditions of living and in the needs of the injured and of his dependents, according to whether they reside in one or the other of our states and territories, so widely extended. In a large majority of instances they reside in the state in which the accident occurs. Though the principle that compensation should be made, or relief given, is of universal application, the great diversity of conditions in the different sections of the United States may, in a wise application of the principle, call for differences between states in the amount and method of compensation, the periods in which payment shall be made, and the methods and means by which the funds shall be raised and distributed. The filed of compensation for injuries appears to be one in which uniformity is not desirable, or at least not essential to the public welfare. The contention that Congress has, by legislating on one branch of a subject relative to interstate commerce, pre-empted the whole field, has been made often in this court; and, as the cases above cited show, has been repeatedly rejected in cases where the will of Congress to leave the balance of the field open to state action was far less clear than under the circumstances here considered. Tested by those decisions and by the rules which this court has framed for its guidance, I am of opinion, as was said in Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 294, 58 L. ed. 1312, 1319, 34 Sup. Ct. Rep. 829, that 'the intent to supersede the exercise of the state police power with respect to this subject cannot be inferred from the restricted action which thus far has been taken.' The field covered by Congress was a limited field of the carrier's liability for negligence, not the whole field of the carrier's obligation arising from accidents. I find no justification for imputing to Congress the will to deny to a large class of persons engaged in a necessarily sarily hazardous occupation12 and otherwise unprovided for, the protection afforded by beneficent statutes enacted in the long-deferred performance of an insistent duty and in a field peculiarly appropriate for state action. Mr. Justice Clarke concurs in this dissent.

242.US.434

At the date of the Treaty of Greenville, August 3, 1795, 7 Stat. 49, the right of the Pottawatomie Nation in lands on and near the shore of Lake Michigan now in Illinois was no more than a right of occupation. If the occupancy ever extended to lands formerly submerged in the lake such as are the subject of this litigation, the. court notices historically that it was long ago abandoned and that for more than half a century no pretense of such occupancy has been made by the tribe. The treaty did no more than'confirm the tribal right of occupancy, and when that was abandoned all interest of the tribe and its members was terminated.

The claim set up in this cause is without merit, and the amended bill was properly dismissed, upon motion, for want of equity. Complainants are eight Pottawatomie Indians, members of the Pokagon Band, and residents of Michigan. They undertake to sue 'on behalf of themselves and of all members of the Pokagon Band of Pottawatomie Indians, and of all other members of the Pottawatomie Nation of Indians, if any are entitled to join herein with them, and of all others, if any, who are entitled to join herein with them.' Defendants are the city of Chicago and certain corporations now occupying valuable lands within the geographical limits of Illinois, which have been reclaimed from Lake Michigan. That from time immemorial, on August 3, 1795, and thereafter, the Pottawatomie Indians were the owners and in possession as a sovereign nation, as their country, of large tracts of land around and along the shores of Lake Michigan, south of a line running from Milwaukee river, Wisconsin, to Grand river, Michigan, and extending 'east and west of said two points and including all of Lake Michigan which is south of said line,'—a stretch of a hundred miles. That by the Treaty of Peace entered into at Greenville, Ohio, August 3, 1795, the United States relinquished to the Pottawatomie and other tribes their claims to Indian lands westward of a designated line passing through the state of Ohio, and lying 'northward of the River Ohio, eastward of the Mississippi, and westward and southward of the Great Lakes and the waters uniting them, according to the boundary line agreed on by the United States and the King of Great Britain in the Treaty of Peace made between them in the year of 1783 [8 Stat. at L. 80].' [7 Stat. at L. 51.] That by later treaties the Pottawatomie Nation receded to the United States all such lands up to the shores of Lake Michigan, but those within the geographical limits of Illinois which were formerly beneath the waters of Lake Michigan, 'whether reclaimed, artificially made, or now or formerly submerged . . . have remained and still are the property of these complainants . . . and any attempts on the part of any persons, firms, and corporations to appropriate same, or any part thereof, were and are in violation of said treaties and the rights of these complainants.' That in 1833, with the exception of the Pokagon Band, in pursuance of a treaty with the United States, the Pottawatomie Nation migrated west of the Mississippi river, leaving that band in possession, occupation, control, and sovereignty of so much of the Nation's original country as remained unceded. That the United States has refused to purchase the reclaimed lands and consequently complainants are at liberty to occupy, sell, lease, or dispose of the same as their own in fee simple. The bill prays that defendants be enjoined from occupying or building upon the specified land, or from asserting any claim, title, or interest therein; that they be required to pay a reasonable compensation for its use; and that the complainants' title thereto be quieted, established, and confirmed. The only possible immemorial right which the Pottawatomie Nation had in the country claimed as their own in 1795 was that of occupancy. Johnson v. M'Intosh, 8 Wheat. 543, 5 L. ed. 681. If, in any view, it ever held possession of the property here in question, we know historically that this was abandoned long ago, and that for more than a half century it has not even pretended to occupy either the shores or waters of Lake Michigan within the confines of Illinois. By the Treaty of Greenville the United States stipulated with the Pottawatomies and other Indians that generally, in respect of a large territory westward of a line passing through Ohio, 'the Indian tribes who have a right to those lands are quietly to enjoy them, hunting, planting and dwelling thereon so long as they please, without any molestation from the United States; but when those tribes, or any of them, shall be disposed to sell their lands, or any part of them, they are to be sold only to the United States; and until such sale, the United States will protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude upon the same.' We think it entirely clear that this treaty did not convey a fee-simple title to the Indians; that under it no tribe could claim more than the right of continued occupancy; that under this was abandoned, all legal right or interest which both tribe and its members had in the territory came to an end. Johnson v. M'Intosh, 8 Wheat. 543, 584, 586, 588, 5 L. ed. 681, 691, 692; Mitchel v. United States, 9 Pet. 711, 745, 9 L. ed. 283, 295; United States v. Cook, 19 Wall. 591, 592, 22 L. ed. 210, 211; Beecher v. Wetherby, 95 U. S. 517, 525, 24 L. ed. 440, 441. It is unnecessary to consider other reasons suggested by counsel in support of the decree below. Affirmed.

244.US.202

It being settled that in the absence of congressional legislation the commerce clause does not forbid a State to legislate concerning the relative rights and duties of employers and employees within her borders although engaged in interstate commerce, a contention to the contrary will not afford jurisdiction to this court to review a state judgment. So held where an Ohio elective Workmen's Compensation Law, in withdrawing the defenses of contributory negligence, negligence of fellow servant and assumption of risk from employers not accepting provisions of the act, was claimed to contravene the commerce clause, as applied to a company engaged in interstate transportation by steamship. The objection that the Ohio Compensation Act, as applied to a steamship company engaged in interstate commerce, would be an unconstitutional invasion of the federal maritime jurisdiction cannot be considered in this case, since the jurisdiction of the court below is confined to review of the trial court's judgment for errors appearing on the record, and this objection was neither made in the trial court, nor, clearly, in the petition in error before the court below, nor definitely mentioned in the latter court's opinion. Mutual Life Insurance Co. v. McGrew, 188 U. S. 291. Dismissed.

Number 469. Seeking damages under the laws of Ohio, defendant in error, Wattawa, brought this action in the common pleas court of Cuyahoga county. He alleged that, by reason of the Steamship Company's negligence, he suffered personal injuries in September, 1913, while employed by it as a deck hand on the Edwin N. Ohl, then lying at Sandusky, Ohio; and that although an employer of more than five men, the company was not a subscriber or contributor to the state insurance fund provided for by the Act of May 31, 1911, the first Ohio Workmen's Compensation Act. In defense the company elaimed that, although employing more than five men, it was engaged in interstate commerce, and therefore was not required to subscribe to the state insurance fund; denied negligence; and alleged that the accident resulted wholly from the employee's want of care; and moreover, that he had assumed the risk. Upon motion the allegation as to assumption of risk was stricken out. The court charged that as the company had not accepted the Compensation Act, it could not rely upon common-law defenses based on the fellow-servant rule, assumption of risk, or contributory negligence. Judgment upon a verdict for $5,200 was affirmed by the court of appeals, and petitions in error and for certiorari were denied by the supreme court. We are asked to reverse the action of the court of appeals upon two grounds: First, because the company was engaged in interstate commerce and therefore could not be subjected to the Compensation Act without burdening such commerce, contrary to the commerce clause of the Federal Constitution. Second, because article 3, § 2 of the Constitution extended judicial power to all cases of admiralty and maritime jurisdiction, and thereby rendered the general maritime law part of the Federal laws not subject to alteration by state statutes. The first point relied upon is entirely without merit, and inadequate to support our jurisdiction. In the absence of congressional legislation the settled general rule is that, without violating the commerce clause, the states may legislate concerning relative rights and duties of employers and employees while within their borders, although engaged in interstate commerce. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 297, 43 L. ed. 702, 706, 19 Sup. Ct. Rep. 465; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 408, 57 L. ed. 1511, 1545, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18. The second reason for reversal now set up was not presented to the trial court in any form. It was not pointed out clearly, if at all, by the petition in error before the court of appeals, and was not definitely mentioned in the opinion of that court, whose powers only extend to a review of the trial court's judgment for errors appearing on the record. Section 12,247 Ohio General Code, as amended by 103 Ohio Laws, pp. 405, 431. The question, therefore, is not properly before us. Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 308, 309, 47 L. ed. 480, 484, 485, 63 L.R.A. 33, 23 Sup. Ct. Rep. 375. The writ of error must be dismissed for want of jurisdiction. Number 470. Counsel for the Steamship Company have admitted of record here that this cause involves the same state of facts and questions of law as those presented in Number 469. They were heard together and the same judgment will be entered in each of them. Dismissed.

242.US.386

Of two qualified applicants for anallotment under § 11 of the Cherokee Agreement of 1902 (Act of July 1, 1902, c. 1375, 32 Stat. 716), the .one owning the improvements on the tract in question, though junior in time of application, is entitled to prevail. In such case a substantial equity in the improvements will suffice to hold the tract against a claimant whose interest in them is nil. A decision of the Secretary of the Interior that one of two contesting claimants of an allotment under § 11 of the Cherokee Agreement, supra, was the owner of the improvements on the land, is conclusive, unless made without evidence to support it or otherwise the result of an error of law. Where a community of interest in the possession and improvements of a tract of land existed among several members of a Cherokee family, an agreement among them that one should have a specific part of the land for her allotment, held, operative to pass an interest in the improvements on that parcel sufficient to give a preferential right to select it under § 1.1 of the Cherokee Agreement of 1902. Section 18 of the Cherokee Agreement of 1902 recognized in terms the right of a tribal member to hold possession by his agent as well as by himself of land not exceeding the allottable quantity. Certain proceedings before the Commissioner to the Five Civilized Tribes, and others in the United States Court for the Indian Territory, for the sale of the improvements upon the allotment here in question, held, ineffectual against one who was not a party to those proceedings and who made application for the allotment, based on ownership of the improvements, before they were instituted. 40 Oklahoma, 341, affirmed.

This was an equity action involving the right to an allotment of land in the Cherokee Nation, containing about 77 acres. The plaintiff in error Harnage and the defendant in error Martin are members of the Cherokee Tribe, and rival claimants to the allotment. The other parties are two oil companies that claim under Harnage and Martin respectively, and admittedly have no higher rights than theirs. Harnage brought an action in one of the district courts of Oklahoma for the purpose of charging the legal title to the lands in question, which stood in Mrs. Martin, with a trust in his favor, upon the ground that the Secretary of the Interior, through a gross misapprehension of the facts or an error of law, had awarded the land to her, when, under the provisions of the Cherokee Agreement and other acts of Congress pertaining to the subject, it should have been awarded to him. By the Agreement (Act of July 1, 1902, chap. 1375, 32 Stat. at. L. 716, 717) it was provided as follows: 'Sec. 11. There shall be allotted by the Commission to the Five Civilized Tribes and to each citizen of the Cherokee Tribe, . . . land equal in value to one hundred and ten acres of the average allottable lands of the Cherokee Nation, to conform as nearly as may be to the areas and boundaries established by the government survey, which land may be selected by each allottee so as to include his improvements. * * * * * 'Sec. 18. It shall be unlawful after ninety days after the ratification of this act by the Cherokees, for any member of the Cherokee Tribe to inclose or hold possession of, in any manner, by himself or through another, directly or indirectly, more lands in value than that of one hundred and ten acres of average allottable lands of the Cherokee Nation, either for himself or for his wife, or for each of his minor children, if members of said tribe; and any member of said tribe found in such possession of lands, or having the same in any manner inclosed, after the expiration of ninety days after the date of the ratification of this act shall be deemed guilty of a misdemeanor.' By §§ 74 and 75 (p. 727) the act was to take effect upon ratification by a majority of the legal voters of the Nation. It was thus ratified on August 7, 1902. On May 13, 1904, Harnage made application to the Dawes Commission to have the land in controversy allotted to him, and his application was granted. Thirteen days later Mrs. Martin made a similar application, and this was refused on the ground of the prior allotment to Harnage; thereupon she instituted a contest before the commission against the Harnage allotment. It came to trial before the Dawes Commissioner in September, 1907, and resulted in a decision in favor of Mrs. Martin. Harnage appealed to theCommissioner of Indian Affairs, who rendered a like decision, and this, on appeal to the Secretary of the Interior, was affirmed; and deeds for the land in contest were made to Mrs. Martin pursuant to the act. Upon the trial of the equity case plainttffs in error introduced a certified transeript of all proceedings and evidence in the contest proceeding, and this was the only evidence offered that was at all pertinent to the question we have to decide. Defendants in error demurred to the evidence, and the demurrer was sustained and the bill of complaint dismissed. This judgment was affirmed by the supreme court of Oklahoma (40 Okla. 341, 136 Pac. 154). Harnage having admittedly filed first upon the land in controversy, Mrs. Martin was entitled to prevail in the contest only by showing that at the time of the Harnage filing she was the owner of the improvements, within the meaning of § 11 of the Agreement, and for that reason entitled, under the provisions of the same section, to take this particular land for her allotment. It was found by the Commissioner to the Five Civilized Tribes who heard the contest, and by the Commissioner of Indian Affairs and the Secretary of the Interior who heard the successive appeals, that Mrs. Martin was the owner of the improvements; and the only question for our determination is whether this decision was without evidence to support it, or was otherwise the result of some error of law on the part of those officers. Ross v. Stewart, 227 U. S. 530, 535, 57 L. ed. 626, 629, 33 Sup. Ct. Rep. 345; Ross v. Day, 232 U. S. 110, 117, 58 L. ed. 528, 530, 34 Sup. Ct. Rep. 233; Johnson v. Riddle, 240 U. S. 467, 474, 60 L. ed. 752, 756, 36 Sup. Ct. Rep. 393. Each of the departmental decisions was made in writing, but the findings are somewhat informal, each appeal having resulted in adding something to what had been found before,—a fact not surprising, since the testimony is very voluminous, occupying more than 500 pages of the printed transcript in this court. The following is an outline of the facts found: Mrs. Martin was the granddaughter of an Indian woman known as Mary Anderson, or Anson, afterwards Mary Thursday, and was the daughter of William Bob Anson, otherwise known as Wild Bill. She had a brother known as Sam Bob. All these parties were Delaware Indians, adopted into the Cherokee Tribe, and as such were entitled to certain Delaware payments from the government. During Mrs. Martin's childhood, she and her brother and their parents resided with the grandmother, who was the head of the family, upon an improved tract of land known as the 'old home place,' located south and west of the land in controversy. Wild Bill died in 1889, and his wife about the same time; and, after this, such payments as were due to Wild Bill as a Delaware were paid to Mary Thursday, and also certain small payments that were due to the contestant. About the year 1891, contestant, then a child of about ten years, was removed by force or undue influence to the home of a Delaware named Frenchman, and kept there until the Delaware payments of 1891 and 1893, averaging over $500 each, were paid to the members of the tribe. The payments due to contestant were collected by Frenchman, who appropriated them to his own use, this having been his object in assuming control over the child. Later she was sent away to school at the expense of the government, and afterwards returned to the vicinity of her home, where she supported herself by her labor. In November, 1898, when she was about eighteen years of age, she was married to George Martin, and shortly after this she and her husband visited Mary Thursday, and the latter then ascertained that contestant had not secured any land for future allotment. (This was after the establishment of the Dawes Commission, and after the passage of the Curtis Act of June 28, 1898 [chap. 517, § 11, 30 Stat. at L. 495-497], when the allotment of the Indian lands in the then territory was in contemplation; Woodward v. De Graffenried, 238 U. S. 284, 291, 59 L. ed. 1310, 1317, 35 Sup. Ct. Rep. 764.) During contestant's absence the original home place had been added to by the purchase in 1893 of the improvements on about 90 acres of land lying immediately north of it for $800, the purchase price having been paid by Mary Thursday and Sam Bob from the proceeds of the Delaware payments, and the bill of sale for the improvements having been made to them. The entire place then comprised about 200 acres of improvements. Mrs. Thursday, recognizing an indebtedness to contestant on account of having received Delaware payments due to her and to her father, and there being sufficient land for herself and Sam Bob and contestant, gave to contestant a right to select the land in controversy, or at least to take as an allotment some portion of the home place, with the understanding that she, Mary Thursday, would hold it until the time for allotment, which was done. From the time of the making of this arrangement Mrs. Martin was recognized by her grandmother and her brother as having an interest in the place; that is, a right to share in the improvements to the extent necessary to entitle her to an allotment out of the land, notwithstanding her involuntary absence from home during her childhood. It was contended that Mary Thursday, at the time of the transaction referred to, was of unsound mind, but this was overruled as unsupported by the evidence. It appears that before Mrs. Martin filed her allotment selection Mrs. Thursday had located her own allotment in the southern part of the home place, and Sam Bob had located his in the northern part, and the land lying between these was left for Mrs. Martin. This, in view of the previous agreement of Mrs. Thursday, was found to be equivalent to a transfer to Mrs. Martin of the specific improvements upon the intervening tract. The Department found that after the northern and southern portions of the farm were merged into one place there was a recognized community of interest among the members of the family growing out of their relationship and the commingling of their funds, whereby Mrs. Martin had an interest in every part of the family holdings, and that when Sam Bob elected to take his allotment in the northern part of the place and Mary Thursday to take hers in the southern part they impliedly relinquished to the contestant as the remaining member of the family their interest in the tract of land lying between. An agreement that Mrs. Martin should have a part of the Thursday place for her allotment might fairly be held to be equivalent to giving her a sufficient interest in the improvements to support a preferential right to the allotment, for, by Cherokee law, ownership of improvements entitled the owner to possession of the land; and in § 11 of the Curtis Act there was a proviso 'that whenever it shall appear that any member of a Tribe is in possession of lands, his allotment may be made out of the lands in his possession, including his home, if the holder so desires.' The same general policy was afterwards carried into § 11 of the Cherokee Agreement, with more particular recognition of ownership of the improvements as the decisive point. The contention that the findings were unsupported by evidence cannot be sustained. The evidence is to some extent circumstantial, but it is sufficient. It was contradicted by Wallace Thursday, the husband of Mary, but his unreliability was clearly shown. It is argued that, under § 18 of the Agreement, Mrs. Thursday's possession, after November 5 of that year (ninety days after date of ratification), of all lands in excess of the value of 110 acres of average allottable lands for herself and a like amount for each of her minor children, if any was unlawful, and that because Mrs. Martin reached the age of twenty-one before the ratification of the Agreement, Mrs. Thursday could not lawfully hold for her any part of the surplus lands. This is based upon a clear misinterpretation of § 18, the very terms of which permitted Mrs. Martin, as a member of the Cherokee Tribe, to hold possession, by herself or 'through another,' of lands not exceeding in value 110 acres of average allottable lands, and thus authorized her to hold the lands by her grandmother as her agent. There is no question that the improvements upon the allotment in question, as well as upon the adjoining lands, were substantial in value, and were such as, under the tribal law, carried a right of occupancy, and such as were recognized in § 11 of the Curtis Act and § 11 of the Agreement. There is nothing inconsistent with the policy of the latter act in giving to Mrs. Martin, as owner of a substantial equitable interest in the improvements that were upon the tract in question when the act was passed, a preferential right to select that as her allotment. The policy was to give recognition to the established laws and customs of the Cherokees (Const. art. I., § 2; Laws 1892, §§ 706, 761, 762), under which citizens of the Nation might and did inclose and improve portions of their common domain and thereby establish a prior right to the possession of those lands, transferable to another citizen by a sale of the improvements. The Agreement substituted a system of allotments with ownership of the soil in the place of a mere possessory right, and its provisions were intended to limit the quantity of land that might be held by or for a single citizen, but they recognized the superior equity of an owner of improvements over that of citizen who had no such ownership, and the precise character of the ownership was of little consequence as against a party having none at all. Among the records that were introduced in evidence in the equity suit was an application made in the year 1905 to the Commissioner to the Five Civilized Tribes by Wallace Thursday, acting as guardian of the person and estate of Sam Bob, a minor and of Mary Thursday, an insane person, for the sale of the improvements upon the allotment in controversy as surplus holdings of those Indians, and certain orders made in the same year by the United States court for the northern district of the Indian Territory upon the application of Wallace Thursday, authorizing him in the same capacity to sell the improvements to Harnage. But as Mrs. Martin was not a party to these proceedings, and they were taken long after the filing of her application for allotment, they can have no effect as against her. Since we are convinced that the decision of the Supreme Court of Oklahoma deprived plaintiffs in error of no right to which they were entitled under the laws of the United States, it results that the judgment must be and it is affirmed.

244.US.103

In an action against a carrier for breach of a contract to furnish an interstate train, the defendant objected when the tria! opened that no rate for such trains had been filed with the Interstate Commerce Commission and, while the trial was in progress. offered an amendment to the answer, setting up this defense. Under the state practice the defense was not cognizable unless pleaded, and the amendment, not having been suggested until months after the commencement of the action while other defenses had been interposed, was rejected by the state trial court as coming too' late, and this ruling was affirmed by the State Supreme Court as a proper exercise of the trial court'i discretion. It being evident that the decision merely enforced the state *practice with no purpose to evade the claim of federal right, Held, that a writ of error from this court must be dismissed. In the trial of an action against a carrier upon a contract for interstate transportation the plaintiff may be entitled to the presumption that the carrier filed such rates as were requisite to sustain the contract, the pleadings being silent on the subject. Writ of error to review 38 Nevada, 156, dismissed.

This is an action for breach of a contract to furnish plaintiff (defendant in error) a special train to carry him from Reno, Nevada, to Doyle, California, where his son was ill, and to bring the two back from that place. The plaintiff got a judgment, and the only question before us is whether any rights of the defendant under the Act to Regulate Commerce have been infringed. The ground on which such an infraction is alleged is that the trial court, after the trail had been going on for more than a day, refused to allow the answer to be amended so as to set up that no tariff rate for special trains had been filed by the defendant and that therefore the contract was illegal. The defendant had mentioned the point at the beginning of the trial, but this was the first time that it was presented in proper form under the state practice, although some months had elapsed since the beginning of the suit, and demurrers and other defenses had been interposed without suggesting this one. The supreme court of the state declined to overrule the discretionary judgment of the court below. 38 Nev. 156, L.R.A.——, ——, 145 Pac. 926, 8 N. C. C. A. 777. Upon the question whether a claim of immunity under a statute of the United States has been asserted in the proper manner under the state system of pleading and practice 'the decision of the state court is binding upon this court, when it is clear, as it is in this case, that such decision is not rendered in a spirit of evasion, for the purpose of defeating the claim of Federal right.' Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532, 535, 61 L. ed. 476, 37 Sup. Ct. Rep. 188. The most that could be said in this case was that the supreme court was influenced in its judgment by the fact that the railroad, after treating the plaintiff very badly, was trying to escape liability by an afterthought upon a debatable point of law,—not at all by the fact that the law involved was Federal. The plaintiff had tried the case relying upon the presumption which was sufficient as the pleading stood. Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 60 L. ed. 1022, L.R.A.1917A, 265, 36 Sup. Ct. Rep. 555. The court reasonably might decline to put him to procuring other evidence from a distance, on the last day of the trial, upon a new issue presented after his evidence was in. We perceive no reason why this court should interfere with the practice of the state. Writ of error dismissed. The CHIEF JUSTICE and Mr. Justice Clarke dissent.

245.US.170

Article 7 of the treaty with Denmark of April 26, 1826, 8 Stat. 340, (renewed April 11, 1857, 11 Stat. 719,) places no limitation upon the right of either government to deal with its own citizens and their property, within its dominion. Therefore, where a native of Denmark, who became a naturalized citizen of the United States, died a resident and property owner in the State of Iowa, and in the settlement there of his estate inheritance taxes were imposed in respect of legacies to subjects and residents of Denmark, the treaty affords the legatees no basis for complaining of the discrimination of the Iowa law (1907 Supp. Code, § 1467), which taxes legacies to nonresident aliens higher than those given under similar conditions to residents of the State without regard to the residence or nationality of the testator. The favored nation clause in Article 1 of the above cited treaty with Denmark is applicable only "in respect of commerce and navigation;" it does not apply where the discrimination complained of is in the rates of state inheritance taxes. 166 Iowa, 617, affirmed.

Anna M. Anderson, a native of Denmark, but a naturalized citizen of the United States, died in the state of Iowa where she resided and owned property. By her will she gave money legacies to her nephews and nieces who were subjects of the Kingdom of Denmark and resided therein. By the death duties imposed by the law of the state of Iowa a higher rate was imposed on legacies made to nonresident aliens than was payable on those given under similar conditions to residents of Iowa whether made by a citizen or by resident or nonresident aliens, Section 1467, 1907 Supplement to the Code of Iowa. The representative of the estate of Anderson in filing his accounts having credited himself with the sum due to the state on the legacies, which he had paid, the foreign legatees opposed the allowance of such credit on the ground that the charge of a greater sum to them because they were aliens and nonresidents than would have been charged against them had they been residents was illegal because in conflict with a treaty between the United States and Denmark. The case is here to review the action of the court below rejecting such contention and upholding the validity of the charge. In re Anderson's Estate, 166 Iowa, 617, 147 N. W. 1098, 52 L. R. A. (N. S.) 686. The court, conceding that if the treaty were applicable it would be controlling, based its conclusion solely on the ground that the treaty when rightly considered did not apply, and in the argument at bar the error of this conclusion is the sole ground relied upon. The treaty is that of April 26, 1826 (8 Stat. 340) renewed in 1857 (11 Stat. 719), and the particular clauses invoked are article 1, the favored nation clause, and article 7, dealing more directly with the subject under consideration. We postpone momentarily the first to come at once to the latter. The article is as follows: 'The United States and his Danish Majesty mutually agree, that no higher or other duties, charges or taxes of any kind, shall be levied in the territories or dominions of either party, upon any personal property, money, or effects, of their respective citizens or subjects, on the removal of the same from their territories or dominions reciprocally, either upon the inheritance of such property, money, or effects, or otherwise, than are or shall be payable in each state, upon the same, when removed by a citizen or subject of such state respectively.' It is obvious that the article places restrictions upon the authority of the respective countries to impose taxes, duties or charges under the circumstances and conditions for which it provides. Conceding that it requires construction to determine whether the prohibitions embrace taxes generically considered, or death duties, or excises, on the right to transfer and remove property, singly or collectively, we are of the opinion that the duty of interpretation does not arise since in no event would any of the prohibitions be applicable to the case before us. We are constrained to this conclusion because the case here presented concerns only the power of the state of Iowa to deal with a citizen of that state and her property there situated, while the prohibitions of the treaty, giving to them their widest significance, apply only to a citizen of Denmark and his right to dispose of his property situated in the state of Iowa. This is undoubted because there is no controversy as to the first, the citizenship in Iowa, and there is not room for substantial doubt as to the latter, since on the face of the treaty the contractual limitations which it provides are manifestly intended not to control or limit the right of either of the governments to deal with its own citizens and their property within its borders, but were solely intended to restrict the power of both of the governments to deal with citizens of the other and their property within its dominions. But if the mere letter of portions of the article when separately considered would leave room for any doubt on the subject, it would be dispelled by the context and by the consideration that the foundation of the provision is the recognition of the plenary power of each country to legislate according to its conceptions of public welfare as to its own citizens and their property within its jurisdiction. Indeed that which is contracted against is merely a departure by discrimination by either one of the countries against the citizens of the other and their property therein from the legislation governing their own citizens. In other words, the right of the citizens of each of the contracting countries reciprocally to own, dispose of or transmit their property situated in the other country, free from provisions or restrictions discriminating because of alienage, is in the largest possible sense that which is protected by the treaty. And conversely this being true it follows also that the treaty did not protect the right of the citizens of either country to acquire by transfer or inheritance property situated in the other belonging to its own citizens free from the restraints imposed by the law of such country on its own citizens even although such restraints would not have been applicable in case the property had been disposed of or transmitted to a citizen. The ruling in Frederickson v. Louisiana, 23 How. 445, 16 L. Ed. 577, while it concerned a treaty with a different country, is here aptly illustrative and persuasively controlling. In that case the contention was that limitations contained in a treaty between the United States and the King of Wurtemburg forbidding discrimination as to the disposal or transmission of their property by subjects of the King of Wurtemburg were applicable to property in the state of Louisiana of a citizen of that state because of the accidental circumstance that the property had passed by the death of such citizen to subjects of the King of Wurtemburg, nonresidents in the United States. In holding the contention to be unfounded it was said (23 How. 447, 16 L. Ed. 577): 'But we concur with the Supreme Court of Louisiana in the opinion that the treaty does not regulate the testamentary dispositions of citizens or subjects of the contracting powers, in reference to property within the country of their origin or citizenship. The cause of the treaty was, that the citizens and subjects of each of the contracting powers were or might be subject to onerous taxes upon property possessed by them within the states of the other, by reason of their alienage, and its purpose was to enable such persons to dispose of their property, paying such duties only as the inhabitants of the country where the property lies pay under like conditions. The case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other, was not in the contemplation of the contracting powers, and is not embraced in this article of the treaty.' And this view disposes of the elaborate argument concerning the right of the foreign legatees to remove the property as there is here no question of a burden placed by the state of Iowa on the right to remove other than that which the argument assumes may have indirectly resulted from the payment of the lawful duty imposed by the state of Iowa upon its own citizens and as to their property within its own borders. The duty to pay on such property which preceded and accompanied the right of such foreign legatees was not a burden upon their right to remove their property, as such right of property on their part was dependent on the payment and could not and did not arise until the payment was made. United States v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073, 41 L. Ed. 287. This leaves only the contention as to the favored nation clause contained in the first article of the treaty. But as to that it suffices to say that the argument does not take into view, but disregards the words by which the clause is limited and which expressly make it applicable only 'in respect of commerce and navigation,' a limitation which it has been settled does not embrace the subject we are now dealing with. Mager v. Grima, 8 How. 490, 494, 12 L. Ed. 1168. Affirmed.

244.US.134

The clause in the Sundry Civil Appropriation Act of March 4, 1909, c. 299, 35 Stat. 945, 987, appropriating money to enable the Secretary of the Interior to complete unfinished work pertaining to surveys in Louisiana and other States "caused by the discontinuance of the offices of surveyors-general in those States," abolished the office of surveyor general in Louisiana, repealing by necessary implication § 2207 of the Revised Statutes creating that office. In determining the effect of the later enactment it must be assumed that Congress was familiar with action whereby the Interior Department had already undertaken to terminate the office, which the act recognizes as discontinued. In view of § 1765, Rev. Stats., which fixes the compensation of federal officers at the salaries established by law with only such additional compensation as is by law authorized and explicitly appropriated, the surveyor general of Louisiana was not entitled to the fees for furnishing copies of plats and transcripts of records which the Act of March 3, 1831, § 5, c. 116, 4 Stat. 492, required him to collect but did not undertake to dispose of. 50 Ct. Cis. 226, affirmed.

Section 2207 of the Revised Statutes (Comp. Stat. 1916, § 4435) provided for the appointment of a surveyor general for the surveying district of Louisiana; § 2208 fixed his salary at the sum of $2,000 a year; § 2217 (Comp. Stat. 1916, § 4450) fixed the term of office at four years from the date of the commission unless the incumbent should resign, die, or be removed from office within that period. The claimant insists that Lewis was entitled to the salary of the office for the year ending June 10, 1910, notwithstanding the facts found by the court of claims as to the discontinuance of the office, as it was not until that date that the state of Louisiana duly provided for the reception and safekeeping of the papers and records of the office, which were delivered by the custodian to the state on June 30, 1910. Sections 2218, 2219, 2221, and 2222 of the Revised Statutes (Comp. Stat. 1916, §§ 4451, 4452, 4454, 4456), provided as follows: '2218. The Secretary of the Interior shall take all the necessary measures for the completion of the surveys in the several surveying districts for which surveyors general have been, or may be, appointed, at the earliest periods compatible with the purposes contemplated by law; and whenever the surveys and records of any such district are completed, the surveyor general thereof shall be required to deliver over to the secretary of state of the respective states, including such surveys, or to such other officer as may be authorized to receive them, all the field notes, maps, records, and other papers appertaining to land titles within the same; and the office of surveyor general in every such district shall thereafter cease and be discontinued. '2219. In all cases where, as provided in the preceding section, the field notes, maps, records, and other papers appertaining to land titles in any state are turned over to the authorities of such state, the same authority, powers, and duties in relation to the survey, resurvey, or subdivision of the lands therein, and all matters and things connected therewith, as previously exercised by the surveyor general, whose district included such state, shall be vested in and devolved upon, the Commissioner of the General Land Office.' '2221. The field notes, maps, records, and other papers mentioned in section twenty-two hundred and nineteen shall in no case be turned over to the authorities of any state, until such state has provided by law for the reception and safe-keeping of the same as public records, and for the allowance of free access to the same by the authorities of the United States. '2222. Every surveyor general, register, and receiver, except where the President sees cause otherwise to determine, is authorized to continue in the uninterrupted discharge of his regular official duties, after the day of expiration of his commission, and until a new commission is issued to him for the same office, or until the day when a successor enters upon the duties of such office; and the existing official bond of any officer so acting shall be deemed good and sufficient, and in force, until the date of the approval of a new bond to be given by him, if recommissioned, or otherwise, for the additional time he may so continue officially to act, pursuant to the authority of this section.' It is the contention of the government that the action of the Secretary of the Interior with the approval of the President had the effect to discontinue the office as of July 1, 1909, and that in fact the office of surveyor general was discontinued after June 30, 1909. In the Sundry Civil Appropriation Act of March 4, 1909 (35 Stat. at L. 945, 987, chap. 299), it was provided: 'To enable the Secretary of the Interior to complete the unfinished drafting and field note writing pertaining to surveys in the states of Minnesota, North Dakota, and Louisiana, caused by the discontinuance of the offices of the surveyors general in those states, six thousand five hundred dollars.' And in the appropriation bill for that year Congress made no provision, such as had been customary in former years, for salaries of these officials. The court of claims held that this act was effectual to abolish the office of surveyor general for Louisiana. We deem that a correct conclusion. It is true that repeals by implication are not favored. The repugnancy between the later act upon the same subject and the former legislation must be such that the first act cannot stand and be capable of execution consistently with the terms of the later enactment. As we view it, such conflict does appear in this instance. It must be assumed that Congress was familiar with the action of the executive department undertaking to terminate the office, and when Congress acted upon the assumption that the office was abolished, and provided for the unfinished work pertaining to the surveys, 'caused by the discontinuance' of the office, such action was tantamount to a direct repeal of the act creating the office and had the effect to abolish it. As to the part of Lewis's claim which is for fees, it is alleged in his petition, and found to be a fact by the court of claims, that during the entire period of his service as surveyor general he furnished copies of plats of surveys and transcripts from the records of his office to various individuals requiring them, receiving therefor compensation as authorized by § 5 of the Act of Congress of March 3, 1831 (4 Stat. at L. 492, chap. 116), which is as follows: 'The surveyor general . . . shall be allowed an annual salary of two thousand dollars . . . and that the fees heretofore authorized by law for examining and recording surveys be, and the same are hereby, abolished; . . . and for every copy of a plat of survey, there shall be paid twenty-five cents, and for any transcript from the records of said office, there shall be paid at the rate of twenty-five cents for every hundred words by the individuals requiring the same.' It had been the custom of Lewis and his predecessors in office to retain these fees as their personal property; but by virtue of an order from the Commissioner of the General Land Office, the amounts realized from these fees between May 1, 1907, and June 30, 1909, being $2,287.80, were paid into the Treasury of the United States. It is appellants' contention that this amount is now due and owing Lewis's estate, under the terms of § 5 of the Act of March 3, 1831, above quoted, interpreted in the light of established custom. Section 1765 of the Revised Statutes (Comp. Stat. 1916, § 3234) provides: 'No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.' Claimant contends that this section shows no intention to interfere with the enjoyment of any emoluments already fixed by law, as the additional compensation, the receipt of which it prohibits, is compensation additional to 'salary, pay or emoluments . . . fixed by law or regulations.' To establish that these fees were emoluments fixed by law, the claimant points to the Act of April 21, 1806 (2 Stat. at L. 391, chap. 39), by § 9 of which it is provided: 'The surveyor of the public lands, south of Tennessee, be, and he is hereby directed to appoint a principal deputy for each of the two land districts of the territory of Orleans . . . and each of the said principal deputies shall receive an annual compensation of five hundred dollars, and in addition thereto, the following fees, that is to say: for examining and recording the surveys executed by any of the deputies, at the rate of twenty-five cents for every mile of the boundary line of such survey; and for a certified copy of any plat of a survey in the office, twenty-five cents.' This, read in connection with the Act of March 3, 1831, is the foundation of this claim. The Act of 1831 provides that the surveyor general of the state of Louisiana shall have the same authority, and perform the same duties, as are vested in and required of the surveyor of the lands of the United States, south of the state of Tennessee, or of the principal deputy surveyors in the said state. We are of opinion that § 1765 of the Revised Statutes (Comp. Stat. 1916, § 3234), above quoted, prevents the allowance of the claim for fees. This section is general in its application, and fixes the compensation of officers of the United States at the salary established by law, unless the additional compensation is authorized and explicitly appropriated for. No such law or appropriation is shown in this case. The Act of March 3, 1831, made no disposition of the fees. After May, 1907, the Department required them to be paid into the Treasury. The Court of Claims correctly ruled that § 1765 (Comp. Stat. 1916, § 3234) controlled this part of the claim of appellant. Judgment affirmed. Mr. Justice McReynolds took no part in the consideration and decision of this case.

243.US.219

The Washington Workmen's Compensation Act, as originally enacted, Laws 1911, c. 74, establishes a state fund for the compensation of' workmen injured, and the dependents of workmen killed, in employments classed as hazardous; abolishes, except in a few specified cases, the action at law by employee against employer for damages due to negligence, and deprives the courts of jurisdiction over such controversies. 'It is obligatory upon both employers and employees. The fund is made the sole source of compensation, and is supplied by assessments upon each employer of definite percentages of his total pay-roll. It classifies industries in groups, and aims to adjust the percentage for each group, according to hazard, declaring this the most accurate and equitable method and promising future readjustments by the legislature of both classification and percentages to fit experience. The contributions of each group form a separate account or sub-fund, applicable to no other demands for compensation than those arising in the industries composing that group. Contributions, after the first, are not to exceed what is necessary to meet actual losses in the group for which they are exacted. The act expressly saves all actions and causes existing when it took effect, as between employers and employees, some months after its passage. Held: (1) The act not being valid against employers if not valid as against employees, an employer may question its constitutionality in both aspects. (2) Viewed from the standpoint of employees, the act is the same in principle as the act sustained in New York CentralR . R. Co. v. White, ante, 188. (3) The act is not objectionable upon the ground that, in violation of the Seventh Amendment, it does away with trial by jury in the federal courts, since it does not undertake to interfere with that mode of tri~l in respect of private rights of action which are preserved, but abolishes for the future all right of recovery as between employer and employee in the cases which it covers, leaving nothing for trial by jury either in the state or in the federal courts. (4) Taking effect in futuro and expressly preserving intervening causes of action, the act disturbs no vested rights. (5) In requiring employers to make payments to the state fund for the compensation of injured employees and the dependents of those killed, without regard to fault, the act does not deprive employers of their property, or of their liberty to acquire it, in violation of the Fourteenth Amendment, provided the compensation be not excessive and unreasonable, and provided the burden be fairly distributed among the employers included in the industries affected. (6) In the absence of any showing to the contrary, the compensation provided by the act may be regarded as not unreasonable; this is not to say, however, that any scale of compensation, however insignificant on the one hand or onerous on the other, would be supportable; any question of that kind may be met when it arises. (7) As for the scheme for distributing the burden among employets, the method of applying percentages to pay-rolls, in view of the legislative declaration of its accuracy and fairness, cannot be deemed arbitrary if the percentages be fair; and although in this act the percentages seem high, it is plain that, as to each group of industries, the assessments, after the initial payments, will be limited to the amounts necessary to meet the losses arising in and chargeable to that group. (8) The declarations of the act should be accepted as further evidence of an intelligent effort to limit the burden to the requirements of each industry. (9) Since the question whether a state law deprives of a right secured by the Constitution depends not upon how the law is characterized but upon its practical operation and effect, and since the Constitution does not require a separate exercise of the state powers of regulation and taxation, the crucial question is whether this legislation, be it regarded as an exercise of the power of regulation, or a combination of regulation and taxation, clearly appears to be not a fair and reasonable exertion of governmental power but so extravagant or arbitrary as to constitute abuse of power. A State in the exercise of its power to pass such legislation as reasonably is deemed necessary to promote the health, safety and general' welfare of its people, may regulate the carrying on of all those industrial occupations that frequently and inevitably produce personal injuries and disability with consequent loss of earning power among employees, and occasional loss of life of those upon whom others are dependent for support, and may require that these human losses be charged against the industry, either directly, or by publicly administering the compensation and distributing the cost among the industries affected by means of a reasonable system- of occupation taxes. In the absence of any particular showing of erroneous classification, the evident purpose of an act to classify various occupations according to the respective hazard of each is sufficient answer to any contention that the act improperly distributes the burdens among the several industries. One Who is engaged in the business of logging timber, operating a logging railroad, and operating a saw-mill with power-driven machinery, is not in a position to question the validity of a classification of other businesses as hazardous. The provision in § 4 of the Washington Worlkmen's Compensation Law making it a misdemeanor for any employer to deduct any part of the premium from the wages or earnings of his employees will not be construed, in the absence of any constraining state construction, so broadly as to prohibit employers and employees, in agreeing upon terms of employment, from taking into consideration the fact that the employer is a contributor to the state fund and the resulting effect of the act upon the rights of the parties. Quwre: Whether, if so construed, the act would not be objectionable as an unconstitutional interference with the freedom of contract. Whether the constitutional guaranty of republican form of government (Art. IV, § 4) has been violated, is not a judicial question, but a political question addressed to Congress. 75 Washington, 581, affirmed.

This was an action brought by the state against plaintiff in error, a corporation engaged in the business of logging timber and operating a logging railroad and a sawmill having power-driven machinery, all in the state of Washington, to recover under chap. 74 of the Laws of 1911, known as the Workmen's Compensation Act, certain premiums based upon a percentage of the estimated pay roll of the workmen employed by plaintiff in error during the three months beginning October 1, 1911. Plaintiff in error by demurrer raised objections to the act, based upon the Constitution of the United States. The supreme court of Washington overruled them, and affirmed a judgment in favor of the state (75 Wash. 581, L.R.A. ——, ——, 135 Pac. 645, 4 N. C. C. A. 811), following its previous decision in State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 37 L.R.A.(N.S.) 466, 117 Pac. 1101, 2 N. C. C. A. 823, 3 N. C. C. A. 599; and the case comes here under § 237, Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214]. The act establishes a state fund for the compensation of workmen injured in hazardous employment, abolishes, except in a few specified cases, the action at law by employee against employer to recover damages on the ground of negligence, and deprives the courts of jurisdiction over such controversies. It is obligatory upon both employers and employees in the hazardous employments, and the state fund is maintained by compulsory contributions from employers in such industries, and is made the sole source of compensation for injured employees and for the dependents of those whose injuries result in death. We will recite its provisions to an extent sufficient to show the character of the legislation. The 1st section contains a declaration of policy, reciting that the common-law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions, and in practice proves to be economically unwise and unfair; that the remedy of the workman has been uncertain, slow, and inadequate; that injuries in such employments, formerly occasional, have become frequent and inevitable; and that the welfare of the state depends upon its industries, and even more upon the welfare of its wage workers. 'The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.' The 2d section, declaring that while there is a hazard in all employment, certain employments are recognized as being inherently constantly dangerous, enumerates those intended to be embraced within the term 'extra hazardous,' including factories, mills, and workshops where machinery is used, printing, electrotyping, photoengraving and stereotyping plants where machinery is used; foundries, blast furnaces, mines, wells, gas works, waterworks, reduction works, breweries, elevators, wharves, docks, dredges, smelters, powder works, logging, lumbering, and shipbuilding operations, logging, street, and interurban railroads, steamboats, railroads, and a number of others; at the same time declaring that if there be or arise any extra hazardous occupation not enumerated, it shall come under the act, and its rate of contribution to the accident fund shall be fixed by the department created by the act upon the basis of the relation which the risk involved bears to the risks classified, until the rate shall be fixed by legislation. The 3d section contains a definition of terms, and, among them: 'Workman means every person in this state, who, after September 30, 1911, is engaged in the employment of an employer carrying on or conducting any of the industries scheduled or classified in § 4, whether by way of manual labor or otherwise, and whether upon the premises or at the plant, or, he being in the course of his employment, away from the plant of his employer;' with a proviso giving to a workman injured while away from the plant through the negligence or wrong of another not in the same employ, or, if death result from the injury, to his widow, children, or dependents, an election whether to take under the act or to seek a remedy against the third party. 'Injury' is defined as an injury resulting from some fortuitous event, as distinguished from the contraction of disease. Section 4 contains a schedule of contribution, reciting that industry should bear the greater portion of the burden of the cost of its accidents, and requiring each employer prior to January 15th of each year to pay into the state treasury, in accordance with the schedule, a sum equal to a percentage of his total pay roll for the year, 'the same being deemed the most accurate method of equitable distribution of burden in proportion to relative hazard.' The application of the act as between employers and workmen is made to date from the 1st day of October, 1911, the payment for that year to be made prior to that date and upon the basis of the pay roll of the last preceding three months of operation. At the end of each year an adjustment of accounts is to be made upon the basis of the actual pay roll. The schedule divides the various occupations into groups, and imposes various percentages upon the different groups, the lowest being 1 1/2 per cent, in the case of the textile industries, creameries, printing establishments, etc., and the highest being 10 per cent, in the case of powder works. The same section establishes forty-seven different classes of industry, and declares: 'For the purpose of such payments accounts shall be kept with each industry in accordance with the classification herein provided and no class shall be liable for the depletion of the accident fund from accidents happening in any other class. Each class shall meet and be liable for the accidents occurring in such class. There shall be collected from each class as an initial payment into the accident fund as above specified on or before the 1st day of October, 1911, one fourth of the premium of the next succeeding year, and one twelfth thereof at the close of each month after December, 1911: Provided, any class having sufficient funds credited to its account at the end of the first three months or any month thereafter, to meet the requirements of the accident fund, that class shall not be called upon for such month. In case of accidents occurring in such class after lapsed payment or payments said class shall pay the said lapsed or deferred payments commencing at the first lapsed payment, as may be necessary to meet such requirements of the accident fund. The fund thereby created shall be termed the 'accident fund' which shall be devoted exclusively to the purpose specified for it in this act. In that the intent is that the fund created under this section shall ultimately become neither more nor less than self-supporting, exclusive of the expense of administration, the rates in this section named are subject to future adjustment by the legislature, and the classifications to rearrangement following any relative increase or decrease of hazard shown by experience.1 . . If, after this act shall have come into operation, it is shown by experience under the act, because of poor or careless management, any establishment or work is unduly dangerous in comparison with other like establishments or works, the department may advance its classification of risks and premium rates in proportion to the undue hazard. In accordance with the same principle, any such increase in classification or premium rate, shall be subject to restoration to the schedule rate. . . . If, at the end of any year, it shall be seen that the contribution to the accident fund by any class of industry shall be less than the drain upon the fund on account of that class, the deficiency shall be made good to the fund on the 1st day of February of the following year by the employers of that class in proportion to their respective payments for the past year.' Section 5 contains a schedule of the compensation to be awarded out of the accident fund to each injured workman, or to his family or dependents in case of his death, and declares that except as in the act otherwise provided, such payment shall be in lieu of any and all rights of action against any person whomsoever. Where death results from the injury, the compensation includes the expenses of burial, not exceeding $75 in any case, a monthly payment of $20 for the widow or invalid widower, to cease at remarriage, and $5 per month for each child under the age of sixteen years until that age is reached, but not exceeding $35 in all, with a lump sum of $240 to a widow upon her remarriage; if the workman leaves no wife or husband, but a child or children under the age of sixteen years, there is to be a monthly payment of $10 to each child until that age is reached, but not exceeding a total of $35 per month; if there be no widow, widower, or child under the age of sixteen years, other dependent relatives are to receive monthly payments equal to 50 per cent of the average monthly support actually received by such dependent from the workman during the twelve months next preceding his injury, but not exceeding a total of $20 per month. For permanent total disability of a workman, he is to receive, if unmarried, $20, or, if married, $25 per month, with $5 per month additional for each child under the age of sixteen years, but not exceeding $35 per month in all. (Section 7 provides that the monthly payment, in case of death or permanent total disability, may be converted into a lump sum payment, not in any case exceeding $4,000, according to the expectancy of life.) For temporary total disability there is a somewhat different scale, compensation to cease when earning power is restored. For permanent partial disability the workman is to receive compensation in a lump sum equal to the extent of the injury, but not exceeding $1,500. By § 6, if injury or death results to a workman from his deliberate intention to produce it, neither he nor his widow, child, or dependents shall receive any payment out of the fund. If injury or death results to a workman from the deliberate intention of the employer to produce it, the workman or his widow, child, or dependent shall have the privilege to take under the act, and also have a cause of action against the employer for any excess of damage over the amount receivable under the act. By § 19 provision is made for the adoption of the act by the joint election of any employer and his employees engaged in works not extra hazardous. By § 21, the Industrial Insurance Department is created, consisting of three commissioners. By § 20, a judicial review is given, in the nature of an appeal to the superior court, from any decision of the department upon questions of fact or of the proper application of the act, but not upon matters resting in the discretion of the department. Other sections provide for matters of detail, and § 11 renders void any agreement by employer or workman to waive the benefit of the act. From this recital it will be clear that the fundamental purpose of the act is to abolish private rights of action for damages to employees in the hazardous industries (and in any other industry, at the option of employer and employees), and to substitute a system of compensation to injured workmen and their dependents out of a public fund established and maintained by contributions required to be made by the employers in proportion to the hazard of each class of occupation. While plaintiff in error is an employer, and cannot succeed without showing that its constitutional rights as employer are infringed (Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 59 L. ed. 364, 368, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570), yet it is evident that the employer's exemption from liability to private action is an essential part of the legislative scheme and the quid pro quo for the burdens imposed upon him, so that if the act is not valid as against employees, it is not valid as against employers. However, so far as the interests of employees and their dependents are concerned, this act is not distinguishable in any point raising a constitutional difficulty from the New York Workmen's Compensation Act, sustained in New York C. R. Co. v. White, decided this day [243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247]. It is true that in the Washington act the state fund is the sole source from which the compensation shall be paid, whereas the New York act gives to the employer an option to secure the compensation either through state insurance, insurance with an authorized insurance corporation, or by a deposit of securities with the state Commission. But we find here no ground for a distinction unfavorable to the Washington law. So far as employers are concerned, however, there is a marked difference between the two laws, because of the enforced contributions to the state fund that are characteristic of the Washington act, and it is upon this feature that the principal stress of the argument for plaintiff in error is laid. Two of the constitutional objections may be disposed of briefly. It is urged that the law violates § 4 of article 4 of the Constitution of the United States, guarantying to every state in the Union a republican form of government. As has been decided repeatedly, the question whether this graranty has been violated is not a judicial but a political question, committed to Congress, and not to the courts. Luther v. Borden, 7 How. 1, 39, 42, 12 L. ed. 581, 597, 599; Pacific States Teleph. & Teleg. Co. v. Oregon, 223 U. S. 118, 56 L. ed. 377, 32 Sup. Ct. Rep. 224; Kiernan v. Portland, 223 U. S. 151, 56 L. ed. 386, 32 Sup. Ct. Rep. 231; Marshall v. Dye, 231 U. S. 250, 256, 58 L. ed. 206, 207, 34 Sup. Ct. Rep. 92; Ohio ex rel. Davis v. Hildebrandt, 241 U. S. 565, 60 L. ed. 1172, 36 Sup. Ct. Rep. 708. The 7th Amendment, with its provision for preserving the right of trial by jury, is invoked. It is conceded that this has no reference to proceedings in the state courts (Minneapolis & St. L. R. Co. v. Bombolis, 241 U. S. 211, 217, 60 L. ed. 961, 963, L.R.A. 1917A, 86, 36 Sup. Ct. Rep. 595), but it is urged that the question is material for the reason that if the act be constitutional it must be followed in the Federal courts in cases that are within its provisions. So far as private rights of action are preserved, this is no doubt true; but, with respect to those, we find nothing in the act that excludes a trial by jury. As between employee and employer, the act abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be tried by jury. The only serious question is that which is raised under the 'due process of law' and 'equal protection' clauses of the 14th Amendment. It is contended that since the act unconditionally requires employers in the enumerated occupations to make payments to a fund for the benefit of employees, without regard to any wrongful act of the employer, he is deprived of his property, and of his liberty to acquire property, without compensation and without due process of law. It is pointed out that the occupations covered include many that are private in their character, as well as others that are subject to regulation as public employments, and it is argued that, with respect to private occupations (including those of plaintiff in error), a compulsory compensation act does not concern the interests of the public generally, but only the particular interests of the employees, and is unduly oppressive upon employers, and arbitrarily interferes with and restricts the management of private business operations. The statute, although approved March 14, 1911, took effect as between employers and workmen on October 1 in that year, actions pending and causes of action existing on September 30 being expressly saved. It therefore disturbed no vested rights, its effect being confined to regulating the relation of employer and employee in the hazardous occupations in futuro. If the legislation could be regarded merely as substituting one form of employer's liability for another, the points raised against it would be answered sufficiently by our opinion in New York C. R. Co. v. White, 243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247, where it is pointed out that the common-law rule confining the employer's liability to cases of negligence on his part or on the part of others for whose conduct he is made answerable, the immunity from responsibility to an employee for the negligence of a fellow employee, and the defenses of contributory negligence and assumed risk, are rules of law that are not beyond alteration by legislation in the public interest; that the employer has no vested interest in them nor any constitutional right to insist that they shall remain unchanged for his benefit; and that the states are not prevented by the 14th Amendment, while relieving employers from liability for damages measured by common-law standards and payable in cases where they or others for whose conduct they are answerable are found to be at fault, from requiring them to contribute reasonable amounts and according to a reasonable and definite scale by way of compensation for the loss of earning power arising from accidental injuries to their employees, irrespective of the question of negligence, instead of leaving the entire loss to rest where it may chance to fall; that is, upon particular injured employees and their dependents. But the Washington law goes further, in that the enforced contributions of the employer are to be made whether injuries have befallen his own employees or not; so that, however prudently one may manage his business, even to the point of immunity to his employees from accidental injury or death, he nevertheless is required to make periodical contributions to a fund for making compensation to the injured employees of his perhaps negligent competitors. In the present case the supreme court of Washington (75 Wash. 581, 583) sustained the law as a legitimate exercise of the police power, referring at the same time to its previous decision in the Clausen Case (65 Wash. 156, 203, 207), which was rested principally upon that power, but also (pp. 203, 207) sustained the charges imposed upon employers engaged in the specified industries as possessing the character of a license tax upon the occupation, partaking of the dual nature of a tax for revenue and a tax for purposes of regulation. We are not here concerned with any mere question of construction, nor with any distinction between the police and the taxing powers. The question whether a state law deprives a party of rights secured by the Federal Constitution depends not upon how it is characterized, but upon its practical operation and effect. Henderson v. New York (Henderson v. Wickham) 92 U. S. 259, 268, 23 L. ed. 543, 547; Stockard v. Morgan, 185 U. S. 27, 36, 46 L. ed. 785, 794, 22 Sup. Ct. Rep. 576; Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 227, 52 L. ed. 1013, 1037, 28 Sup. Ct. Rep. 638; Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 28, 30, 54 L. ed. 355, 366, 367, 30 Sup. Ct. Rep. 190; Ludwig v. Western U. Teleg. Co. 216 U. S. 146, 162, 54 L. ed. 423, 429, 30 Sup. Ct. Rep. 280; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 362, 59 L. ed. 265, 271, 35 Sup. Ct. Rep. 99. And the Federal Constitution does not require a separate exercise by the states of their powers of regulation and of taxation. Gundling v. Chicago, 177 U. S. 183, 189, 44 L. ed. 725, 729, 20 Sup. Ct. Rep. 633. Whether this legislation be regarded as a mere exercise of power of regulation, or as a combination of regulation and taxation, the crucial inquiry under the 14th Amendment is whether it clearly appears to be not a fair and reasonable exertion of governmental power, but so extravagant or arbitrary as to constitute an abuse of power. All reasonable presumptions are in favor of its validity, and the burden of proof and argument is upon those who seek to overthrow it. Erie R. Co. v. Williams, 233 U. S. 685, 699, 58 L. ed. 1155, 1160, 51 L.R.A.(N.S.) 1097, 34 Sup. Ct. Rep. 761. In the present case it will be proper to consider: (1) Whether the main object of the legislation is, or reasonably may be deemed to be, of general and public moment, rather than of private and particular interest, so as to furnish a just occasion for such interference with personal liberty and the right of acquiring property as necessarily must result from carrying it into effect. (2) Whether the charges imposed upon employers are reasonable in amount, or, on the other hand, so burdensome as to be manifestly oppressive. And (3) whether the burden is fairly distributed, having regard to the causes that give rise to the need for the legislation. As to the first point: The authority of the states to enact such laws as reasonably are deemed to be necessary to promote the health, safety, and general welfare of their people carries with it a wide range of judgment and discretion as to what matters are of sufficiently general importance to be subjected to state regulation and administration. Lawton v. Steele, 152 U. S. 133, 136, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499. 'The police power of a state is as broad and plenary as its taxing power.' Kidd v. Pearson, 128 U. S. 1, 26, 32 L. ed. 346, 352, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6. In Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357, the court, by Mr. Justice Field, said: 'Neither the [14th] Amendment—broad and comprehensive as it is—nor any other Amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits,— for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the Amendment.' It seems to us that the considerations to which we have adverted in New York C. R. Co. v. White, supra, as showing that the Workmen's Compensation Law of New York is not to be deemed arbitrary and unreasonable from the standpoint of natural justice, are sufficient to support the state of Washington in concluding that the matter of compensation for accidental injuries with resulting loss of life or earning capacity of men employed in hazardous occupations is of sufficient public moment to justify making the entire matter of compensation a public concern, to be administered through state agencies. Certainly the operation of industrial establishments that, in the ordinary course of things, frequently and inevitably produce disabling or mortal injuries to the human beings employed, is not a matter of wholly private concern. It hardly would be questioned that the state might expend public moneys to provide hospital treatment, artificial limbs, or other like aid to persons injured in industry, and homes or support for the widows and orphans of those killed. Does direct compensation stand on a less secure ground? A familiar exercise of state power is the grant of pensions to disabled soldiers and to the widows and dependents of those killed in war. Such legislation usually is justified as fulfilling a moral obligation, or as tending to encourage the performance of the public duty of defense. But is the state powerless to compensate, with pensions or otherwise, those who are disabled, or the dependents of those whose lives are lost, in the industrial occupations that are so necessary to develop the resources and add to the wealth and prosperity of the state? A machine as well as a bullet may produce a wound, and the disabling effect may be the same. In a recent case, the supreme court of Washington said: 'Under our statutes the workman is the soldier of organized industry, accepting a kind of pension in exchange for absolute insurance on his master's premises.' Stertz v. Industrial Ins. Commission, 91 Wash. 588, 158 Pac. 256, 263. It is said that the compensation or pension under this law is not confined to those who are left without means of support. This is true. But is the state powerless to succor the wounded except they be reduced to the last extremity? Is it debarred from compensating an injured man until his own resources are first exhausted? This would be to discriminate against the thrifty and in favor of the improvident. The power and discretion of the state are not thus circumscribed by the 14th Amendment. Secondly, is the tax or imposition so clearly excessive as to be a deprivation of liberty or property without due process of law? If not warranted by any just occasion, the least imposition is oppressive. But that point is covered by what has been said. Taking the law, therefore, to be justified by the public nature of the object, whether as a tax or as a regulation, the question whether the charges are excessive remains. Upon this point no particular contention is made that the compensation allowed is unduly large; and it is evident that, unless it be so, the corresponding burden upon the industry cannot be regarded as excessive if the state is at liberty to impose the entire burden upon the industry. With respect to the scale of compensation, we repeat what we have said in New York C. R. Co. v. White, that, in sustaining the law, we do not intend to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable, and that any question of that kind may be met when it arises. Upon the third question,—the distribution of the burden, there is no criticism upon the act in its details. As we have seen, its 4th section prescribes the schedule of contribution, dividing the various occupations into groups, and imposing various percentages evidently intended to be proportioned to the hazard of the occupations in the respective groups. Certainly the application of a proper percentage to the pay roll of the industry cannot be deemed an arbitrary adjustment, in view of the legislative declaration that it is 'deemed the most accurate method of equitable distribution of burden in proportion to relative hazard.' It is a matter of common knowledge that, in the practice of insurers, the pay roll frequently is adopted as the basis for computing the premium. The percentages seem to be high; but when these are taken in connection with the provisions requiring accounts to be kept with each industry in accordance with the classification, and declaring that no class shall be liable for the depletion of the accident fund from accidents happening in any other class, and that any class having sufficient funds to its credit at the end of the first three months or any month thereafter is not to be called upon, it is plain that, after the initial payment, which may be regarded as a temporary reserve, the assessments will be limited to the amounts necessary to meet actual losses. As further rebutting the suggestion that the imposition is exorbitant or arbitrary, we should accept the declaration of intent that the fund shall ultimately become neither more nor less than self-supporting, and that the rates are subject to future adjustment by the legislature and the classifications to rearrangement according to experience, as plain evidence of an intelligent effort to limit the burden to the requirements of each industry. We may conveniently answer at this point the objection that the act goes too far in classifying as hazardous large numbers of occupations that are not in their nature hazardous. It might be sufficient to say that this is no concern of plaintiff in error, since it is not contended that its businesses of logging timber, operating a logging railroad, and operating a sawmill with power-driven machinery, or either of them, are nonhazardous. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359. But further, the question whether any of the industries enumerated in § 4 is nonhazardous will be proved by experience, and the provisions of the act themselves give sufficient assurance that if in any industry there be no accident, there will be no assessment, unless for expenses of administration. It is true that, while the section as originally enacted provided for advancing the classification of risks and premium rates in a particular establishment shown by experience to be unduly dangerous because of poor or careless management, there was no corresponding provision for reducing a particular industry shown by experience to be included in a class which imposed upon it too high a rate. This was remedied by the amendment of 1915, quoted in the margin, above, which, however, cannot affect the decision of the present case. But in the absence of any particular showing of erroneous classification,—and there is none,—the evident purpose of the original act to classify the various occupations according to the respective hazard of each is sufficient answer to any contention of improper distribution of the burden amongst the industries themselves. There remains, therefore, only the contention that it is inconsistent with the due process and equal protection clauses of the 14th Amendment to impose the entire cost of accident loss upon the industries in which the losses arise. But if, as the legislature of Washington has declared in the 1st section of the act, injuries in such employments have become frequent and inevitable, and if, as we have held in New York C. R. Co. v. White, the state is at liberty, notwithstanding the 14th Amendment, to disregard questions of fault in arranging a system of compensation for such injuries, we are unable to discern any ground in natural justice or fundamental right that prevents the state from imposing the entire burden upon the industries that occasion the losses. The act in effect puts these hazardous occupations in the category of dangerous agencies, and requires that the losses shall be reckoned as a part of the cost of the industry, just like the pay roll, the repair account, or any other item of cost. The plan of assessment insurance is closely followed, and none more just has been suggested as a means of distributing the risk and burden of losses that inevitably must occur, in spite of any care that may be taken to prevent them. We are clearly of the opinion that a state, in the exercise of its power to pass such legislation as reasonably is deemed to be necessary to promote the health, safety, and general welfare of its people, may regulate the carrying on of industrial occupations that frequently and inevitably produce personal injuries and disability, with consequent loss of earning power, among the men and women employed, and, occasionally, loss of life of those who have wives and children or other relations dependent upon them for support, and may require that these human losses shall be charged against the industry, either directly, as is done in the case of the act sustained in New York C. R. Co. v. White, 243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247, or by publicly administering the compensation and distributing the cost among the industries affected by means of a reasonable system of occupation taxes. The act cannot be deemed oppressive to any class of occupation, provided the scale of compensation is reasonable, unless the loss of human life and limb is found in experience to be so great that, if charged to the industry, it leaves no sufficient margin for reasonable profits. But certainly, if any industry involves so great a human wastage as to leave no fair profit beyond it, the state is at liberty, in the interest of the safety and welfare of its people, to prohibit such an industry altogether. To the criticism that carefully managed plants are in effect required to contribute to make good the losses arising through the negligence of their competitors, it is sufficient to say that the act recognizes that no management, however careful, can afford immunity from personal injuries to employees in the hazardous occupations, and prescribes that negligence is not to be determinative of the question of the responsibility of the employer or the industry. Taking the fact that accidental injuries are inevitable, in connection with the impossibility of foreseeing when, or in what particular plant or industry, they will occur, we deem that the state acted within its power in declaring that no employer should conduct such an industry without making stated and fairly apportioned contributions adequate to maintain a public fund for indemnifying injured employees and the dependents of those killed, irrespective of the particular plant in which the accident might happen to occur. In short, it cannot be deemed arbitrary or unreasonable for the state, instead of imposing upon the particular employer entire responsibility for losses occurring in his own plant or work, to impose the burden upon the industry through a system of occupation taxes limited to the actual losses occurring in the respective classes of occupation. The idea of special excise taxes for regulation and revenue, proportioned to the special injury attributable to the activities taxed, is not novel. In Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A.(N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann Cas. 1912A, 487, this court sustained an Oklahoma statute which levied upon every bank existing under the laws of the state an assessment of a percentage of the bank's average deposits, for the purpose of creating a guaranty fund to make good the losses of depositors in insolvent banks. There, as here, the collection and distribution of the fund were made a matter of public administration, and the fund was created not by general taxation, but by a special imposition in the nature of an occupation tax upon all banks existing under the laws of the state. In Hendrick v. Maryland, 235 U. S. 610, 622, 59 L. ed. 385, 390, 35 Sup. Ct. Rep. 140, and Kane v. New Jersey, 242 U. S. 160, 169, 61 L. ed. 222, 37 Sup. Ct. Rep. 30, we sustained laws, of a kind now familiar, imposing license fees upon motor vehicles, graduated according to horse power, so as to secure compensation for the use of improved roadways from a calss of users for whose needs they are essential, and whose operations over them are peculiarly injurious. And see Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 394, 395, 35 L. ed. 1051, 1054, 1055, 12 Sup. Ct. Rep. 255, and cases cited. Many of the states have laws protecting the sheep industry by imposing a tax upon dogs in order to create a fund for the remuneration of sheep owners for losses suffered by the killing of their sheep by dogs. And the tax is imposed upon all dog owners, without regard to the question whether their particular dogs are responsible for the loss of sheep. Statutes of this character have been sustained by the state courts against attacks based on constitutional grounds. Morey v. Brown, 42 N. H. 373, 375; Tenney v. Lenz, 16 Wis. 566; Mitchell v. Williams, 27 Ind. 62; Van Horn v. People, 46 Mich. 183, 185, 186, 41 Am. Rep. 159, 9 N. W. 246; Long-year v. Buck, 83 Mich. 236, 240, 10 L.R.A. 42, 47 N. W. 234; Cole v. Hall, 103 Ill. 30; Holst v. Roe, 39 Ohio St. 340, 344, 48 Am. Rep. 459; McGlond v. Womack, 129 Ky. 274, 283, et seq., 17 L.R.A.(N.S.) 855, 111 S. W. 688. We are unable to find that the act, in its general features, is in conflict with the 14th Amendment. Numerous objections are urged, founded upon matters of detail, but they call for no particular mention, either because they are plainly devoid of merit, are covered by what we have said, or are not such as may be raised by plaintiff in error. Perhaps a word should be said respecting a clause in § 4 which reads as follows: 'It shall be unlawful for the employer to deduct or obtain (sic) any part of the premium required by this section to be by him paid from the wages or earnings of his workmen or any of them, and the making or attempt to make any such deductions shall be a gross misdemeanor.' If this were to be construed so broadly as to prohibit employers and employees, in agreeing upon wages and other terms of employment, from taking into consideration the fact that the employer was a contributor to the state fund, and the resulting effect of the act upon the rights of the parties, it would be open to serious question whether, as thus construed, it did not interfere to an unconstitutional extent with their freedom of contract. So far as we are sware, the clause has not been so construed, and on familiar principles we will not assume in advance that a construction will be adopted such as to bring the law into conflict with the Federal Constitution. Bachtel v. Wilson, 204 U. S. 36, 40, 51 L. ed. 357, 359, 27 Sup. Ct. Rep. 243; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 546, 58 L. ed. 713, 720, 34 Sup. Ct. Rep. 359. Judgment affirmed. The CHIEF JUSTICE, Mr. Justice McKenna, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissent.

243.US.210

As an incident to the establishment of an elective Workmen's Compensation System which (by admission in this case,) is free from constitutional objection, it is not violative of due process for a State to withdraw the common-law defenses of assumption of risk, contributory negligence and negligence of fellow servants from those employers who voluntarily reject the system so established. New York Central R. R. Co. v. White, ante, 188. In such case, also, the State may constitutionally provide that, in an action against an employer who has rejected the Compensation Act, the injury shall be presumed to have resulted directly from his negligence and that the burden of rebutting the presumption shall rest upon him. The provisions in § 3 of the Iowa Workmen's Compensation Law, Laws of Iowa, 35 G. A., c. 147; Iowa Code Supp., 1913, § 2477m, requiring employees who reject the act to state by affidavit who, if anyone, requested or suggested that course, and providing that where an employer or his agent has made such request or suggestion, the employee shall be conclusively presumed to have been unduly influenced and his rejection of the act shall be void. Held, permissible regulation in aid of the general scheme of the act. A Workmen's Compensation Act, which, prescribing the measure of compensation and the circumstances under which it is to be made, establishes a method of applying the measure to the facts of each case by due hearings before an administrative -tribunal, whose action upon all fundamental and jurisdictional questions is subject to judicial review, is not open to objection upon the ground that it clothes the administrative body with an arbitrary and- unbridled discretion in violation of due process of law. Trial by jury is not one of the rights secured by the Fourteenth Amendment. Iowa was not part of the Northwest Territory, nor subject to the Ordinance of July 13, 1787, enacted for the government of that Territory (1 Stat. 51). The act establishing Iowa Territory (June 12, 1838, c. 96, 5 Stat. 235) was but a regulation of territory belonging to the United States, and such provision as it adopted from the Ordinance of 1787 respecting the right of trial by jury, though declared to be unalterable without common consent, was but a part of that regulation, was subject to -repeal, and was superseded by the state constitution when Iowa was admitted into the Union "on an equal footing with the original States in all respects whatsoever." Iowa is as much at liberty as any other State to abolish or limit the right of trial by jury, or to provide for a waiver of that right, as is done by the Workmen's Compensation Act, supra. The Iowa Workmen's Compensation Act, supra, is held not to deprive the employer of equal protection of the laws in allowing him the common-law defenses of assumption of risk, contributory negligence and negligence of fellow servants only when he has accepted the act and the employee has not, while it withdraws them if employer and employee both, or employer alone, have rejected it. 220 Fed. Rep. 378, affirmed.

This is a suit in equity, brought by appellant in the United States district court, to restrain the enforcement of an act of the general assembly of the state of Iowa, approved April 18, 1913, relating to employers' liability and workmen's compensation; it being chap. 147 of Laws of Iowa, 35 G. A.; embraced in Iowa Code, Supp. of 1913, § 2477m. The bill sets forth that complainant is an employer of laborers within the meaning of the act, but has rejected its provisions, alleges that the statute is in contravention of the Federal and state Constitutions, etc., etc. A motion to dismiss was sustained by the district court (220 Fed. 378), and the case comes here by direct appeal, because of the constitutional question, under § 238, Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215]. Since the decision below, the supreme court of Iowa, in an able and exhaustive opinion, has sustained the act against all constitutional objections, at the same time construing some of its provisions. Hunter v. Colfax Consol. Coal Co. 175 Iowa, 245, L.R.A. ——, ——, 154 N. W. 1037, 157 N. W. 145, 11 N. C. C. A. 886. Hence no objection under the state Constitution is here pressed, and we, of course, accept the construction placed upon the act by the state court of last resort. As to private employers, it is an elective workmen's compensation law, having the same general features found in the recent legislation of many of the states, sustained by their courts. See Opinion of Justices, 209 Mass. 607, 96 N. E. 308, 1 N. C. C. A. 557; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Borgnis v. Falk Co. 147 Wis. 327, 37 L.R.A.(N.S.) 489, 133 N. W. 209, 3 N. C. C. A. 649; State ex rel. Yaple v. Creamer, 85 Ohio St. 349, 39 L.R.A.(N.S.) 694, 97 N. E. 602, 1 N. C. C. A. 30; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 59 L. ed. 364, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570; Sexton v. Newark Dist. Teleg. Co. 84 N. J. L. 85, 86 Atl. 451, 3 N. C. C. A. 569, 86 N. J. L. 701, 91 Atl. 1070; Deibeikis v. Link-Belt Co. 261 Ill. 454, 104 N. E. 211, Ann. Cas. 1915A, 241, 5 N. C. C. A. 401; Crooks v. Tazewell Coal Co. 263 Ill. 343, 105 N. E. 132, Ann. Cas. 1915C, 304, 5 N. C. C. A. 410; Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173; Matheson v. Minneapolis Street R. Co. 126 Minn. 286, L.R.A. 1916D. 412, 148 N. W. 71, 5 N. C. C. A. 871; Shade v. Ash Grove Lime & Portland Cement Co. 92 Kan. 146, 139 Pac. 1193, 5 N. C. C. A. 763, 93 Kan. 257, 144 Pac. 249; Sayles v. Foley, 38 R. I. 484, 96 Atl. 340; Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648; Middleton v. Texas Power & Light Co. ——Tex. ——, 185 S. W. 556, 11 N. C. C. A. 873. The main purpose of the act is to establish, in all employments except those of household servants, farm laborers, and casual employee a system of compensation according to a prescribed schedule for all employees sustaining injuries arising out of and in the course of the employment, and producing temporary or permanent disability, total or partial, and, in case of death resulting from such injuries, a contribution towards the support of those dependent upon the earnings of the employee; the compensation in either case to be paid by the employer in lieu of other liability, and acceptance of the terms of the act being presumed unless employer or employee gives notice of an election to reject them. To this main purpose no constitutional objection is raised, the attack being confined to particular provisions of the law. Some of appellant's objections are based upon the ground that the employer is subjected to a species of duress in order to compel him to accept the compensation features of the act, since it is provided that an employer rejecting these features shall not escape liability for personal injury sustained by an employee, arising out of and in the usual course of the employment, because the employee assumed the risks of the employment, or because of the employee's negligence, unless this was wilful and with intent to cause the injury, or was the result of intoxication, or because the injury was caused by the negligence of a coemployee. But it is clear, as we have pointed out in New York C. R. Co. v. White, No. 320, decided this day, 243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247, that the employer has no vested right to have these so-called common-law defenses perpetuated for his benefit, and that the 14th Amendment does not prevent a state from establishing a system of workmen's compensation without the consent of the employer, incidentally abolishing the defenses referred to. The same may be said as to the provision that, in an action against an employer who has rejected the act, it shall be presumed that the injury was the direct result of his negligence, and that he must assume the burden of proof to rebut the presumption of negligence. In addition, we may repeat that the establishment of presumptions, and of rules respecting the burden of proof, is clearly within the domain of the state governments, and that a provision of this character, not unreasonable in itself, and not conclusive of the rights of the party, does not constitute a denial of due process of law. Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 42, 55 L. ed. 78, 79, 32 L.R.A.(N.S.) 226, 31 Sup. Ct. Rep. 136, Ann. Cas. 1912A. 463, 2 N. C. C. A. 243. Objection is made to the provision in § 3, that where an employee elects to reject the act he shall state in an affidavit who, if anybody, requested or suggested that he should do so, and if it be found that the employer or his agent made such a request or suggestion, the employee shall be conclusively presumed to have been unduly influenced, and his rejection of the act shall be void. Passing the point that appellant is an employer, and will not be heard to raise constitutional objections that are good only from the standpoint of employees (New York ex rel. Hatch v. Reardon, 204 U. S. 152, 160, 51 L. ed. 415, 422, 27 Sup. Ct. Rep. 188, 9 Ann. Cas. 736; Rosenthal v. New York, 226 U. S. 260, 271, 57 L. ed. 212, 217, 33 Sup. Ct. Rep. 27, Ann. Cas. 1914B, 71; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 59 L. ed. 364, 368, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570; Hendrick v. Maryland, 235 U. S. 610, 621, 59 L. ed. 385, 390, 35 Sup. Ct. Rep. 140), it is sufficient to say that the criticized provision evidently is intended to safeguard the employee from all influences that might be exerted by the employer to bring about his dissent from the compensation features of the act. The lawmaker no doubt entertained the view that the act was more beneficial to employees than the common-law rules of employer's liability, and that it was highly improbable an employee would reject the new arrangement of his own free will. The provision is a permissible regulation in aid of the general scheme of the act. It is said that there is a denial of due process in that part of the act which provides for the adjustment of the compensation where the employer accepts its provisions. In case of disagreement between an employer and an injured employee, either party may notify the Industrial Commissioner, who thereupon shall call for the formation of an arbitration committee consisting of three persons, with himself as chairman. The committee is to make such inquiries and investigations as it shall deem necessary, and its report is to be filed with the Industrial Commissioner. If a claim for review is filed, the Commissioner, and not the committee, is to hear the parties, may hear evidence in regard to pertinent matters, and may revise the decision of the committee in whole or in part, or refer the matter back to the committee for further findings of fact. And any party in interest may present the order or decision of the Commissioner, or the decision of an arbitration committee from which no claim for review has been filed, to the district court of the county in which the injury occurred, whereupon the court shall render a decree in accordance therewith, having the same effect as if it were rendered in a suit heard and determined by the court, except that there shall be no appeal upon questions of fact or where the decree is based upon an order or decision of the Commissioner which has not been presented to the court within ten days after the notice of the filing thereof by the Commissioner. With respect to these provisions, the supreme court of Iowa held (154 N. W. 1064): 'Appeal is provided from the decree enforcing the award on which all save pure questions of fact may be reviewed. . . . We hold that though the act does not in terms provide for judicial review, except by said appeal, the statute does not take from the courts all jurisdiction in the premises. . . . We are in no doubt that the very structure of the law of the land, and the inherent power of the courts, would enable them to interfere, if what we have defined to be the jurisdiction conferred upon the arbitration committee were by it exceeded—could inquire whether the act was being enforced against one who had rejected it, whether the claiming employee was an employee, whether he was injured at all, whether his injury was one arising out of such employment, whether it was due to intoxication of the servant, or self-inflicted, or, acceptance being conceded, into whether an award different from the statute schedules had been made, into whether the award were tainted with fraud on part of the prevailing party, or of the arbitration committee, and into whether that body attempted judicial functions, in violation of or not granted by the act.' Thus it will be seen that the act prescribes the measure of compensation and the circumstances under which it is to be made, and establishes administrative machinery for applying the statutory measure to the facts of each particular case; provides for a hearing before an administrative tribunal, and for judicial review upon all fundamental and jurisdictional questions. This disposes of the contention that the administrative body is clothed with an arbitrary and unbridled discretion, inconsistent with a proper conception of due process of law. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 545, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359. Objection is made that the act dispenses with trial by jury. But it is settled that this is not embraced in the rights secured by the 14th Amendment. Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Frank v. Mangum, 237 U. S. 309, 340, 59 L. ed. 969, 35 Sup. Ct. Rep. 582; New York C. R. Co. v. White, 243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247. It is elaborately argued that, aside from the 14th Amendment, the inhabitants of the state of Iowa are entitled to this right, because it was guaranteed by the Ordinance of July 13, 1787, for the government of the Northwest Territory (1 Stat. at L. 51, note), in these terms: 'The inhabitants of the said territory shall always be entitled to the benefits of . . . the trial by jury.' The argument is rested, first, upon the ground that Iowa was a part of the Northwest Territory. This is manifestly untenable, since that territory was bounded on the west by the Mississippi river, and Iowa was not a part of it, but of the Louisiana Purchase. But, secondly, it is contended that the guaranties contained in the ordinance were extended to Iowa by the act of Congress approved June 12, 1838, establishing a territorial government (chap. 96, § 12, 5 Stat. at L. 235, 239), and by the act for the admission of the state into the Union. Acts of March 3, 1845, chaps. 48 and 76, 5 Stat. at L. 742, 789; Act of August 4, 1846, chap. 82, 9 Stat. at L. 52; Act of December 28, 1846, chap. 1, 9 Stat. at L. 117; 1 Poore, Charters & Const. 331, 534, 535, 551. This is easily disposed of. The Act of 1838 was no more than a regulation of territory belonging to the United States, subject to repeal like any such regulation; and the act for admitting the state, so far from perpetuating any particular institution previously established, admitted it 'on an equal footing with the original states in all respects whatsoever.' The regulation, although embracing provisions of the ordinance declared to be unalterable unless by common consent, had no further force in Iowa after its admission as a state and the adoption of a state Constitution, than other acts of Congress for the government of the territory. All were superseded by the state Constitution. Permoli v. New Orleans, 3 How. 589, 610, 11 L. ed. 739, 748; Coyle v. Smith, 221 U. S. 559, 567, 570, 55 L. ed. 853, 858, 859, 31 Sup. Ct. Rep. 688; Cincinnati v. Louisville & N. R. Co. 223 U. S. 390, 401, 56 L. ed. 481, 484, 32 Sup. Ct. Rep. 267. The state of Iowa, therefore, is as much at liberty as any other state to abolish or limit the right of trial by jury; or to provide for a waiver of that right, as it has done by the act under consideration. Section 5 is singled out for criticism, as denying to employers the equal protection of the laws. It reads: 'Where the employer and employee elect to reject the terms, conditions and provisions of this act, the liability of the employer shall be the same as though the employee had not rejected the terms, conditions and provisions thereof.' As we have shown, if the employer rejects the act, he remains liable for personal injury sustained by an employee, arising out of and in the usual course of the employment, and is not to escape by showing that he had exercised reasonable care in selecting competent employees in the business, or that the employee had assumed the risk, or that the injury was caused by the negligence of a coemployee, or even by showing that the plaintiff was negligent, unless such negligence was wilful and with intent to cause the injury, or was the result of intoxication on the part of the injured party. This is the result whether the employee on his part accepts or rejects the act. But where the employee rejects it and the employer accepts it, then, by § 3b, 'the employer shall have the right to plead and rely upon any and all defenses including those at common law, and the rules and defenses of contributory negligence, assumption of risk and fellow servant shall apply and be available to the employer as by statute authorized unless otherwise provided in this act;' with a proviso not material to the present point. We cannot say that there is here an arbitrary classification within the inhibition of the 'equal protection' clause of the 14th Amendment. All employers are treated alike, and so are all employees; and if there be some difference as between employer and employee respecting the inducements that are held out for accepting the compensation features of the act, it goes no further than to say that, if neither party is willing to accept them, the employer's liability shall not be subject to either of the several defenses referred to. As already shown, the abolition of such defenses is within the power of the state, and the legislation cannot be condemned when that power has been qualifiedly exercised, without unreasonable discrimination. Section 42 of the act provides: 'Every employer, subject to the provisions of this act, shall insure his liability thereunder in some corporation, association or organization approved by the state department of insurance. . . . And if such employer refuses, or neglects to comply with this section, he shall be liable in case of injury to any workman in his employ under part one (1) of this act.' The supreme court of Iowa, in the Hunter Case, said of § 42 (154 N. W. 1056): 'This clearly shows that no employer is compelled to insure unless he has accepted, and thus become subject to, the act;' proceeding, however, to discuss the case further upon the hypothesis that all employers named in the act were compelled to maintain insurance. In view of the construction adopted, it is unnecessary for us to pass upon the question of compulsory insurance in this case, appellant not having accepted the act. Other contentions are advanced, but they are without merit and call for no particular mention. Decree affirmed.

246.US.388

The Auditor for the Canal Zone has no authority to make deductions for rent of quarters, and because of absence, from the salary of the District Judge of the Zone, as fixed and appropriated for by Congress. Intimated that, but for the character of the proceeding (mandamus) and doubt as to intent, damages would have been inflicted on the Auditor under Rule 23, for plain abuse of administrative discretion in prosecuting this writ of error after being advised by an opinion of the Attorney General and two decisions of the courts below of his manifest duty under the statute respecting the payment of the judge's salary. 241 Fed. Rep. 747, affirmed. Tnn case is stated in the opinion.

Congress provided for a district court of the Canal Zone, the appointment of a judge, and the salary attached to the office. Act of August 24, 1912, c. 390, 37 Stat. 565, § 8 (Comp. St. 1916, § 10044). In due course the salary fixed was definitely appropriated for. It is apparent that some controversy arose as to whether the Auditor of the Canal Zone had the power to refuse to give effect to the act of Congress fixing and appropriating the salary by withholding such sum as he might think was due from the judge as rent for quarters in property belonging to the United States in the Canal Zone. We say this is to be inferred, because in 1915 the Secretary of War submitted to the Attorney General two questions: First, whether the district judge was entitled to the same privilege as to quarters in the Canal Zone there enjoyed by other employes of the government; and second, if not, whether the Auditor had authority to deduct from the salary of the judge before paying it the sum which he considered due for rent of such quarters. Reversing the order in which the questions were asked, the Attorney General came first to reply to the second question and said: '* * * Without specific authority no portion of the salary of an officer of the United States may be withheld. See 20 Ops. 626 (1893); Benedict v. United States, 176 U. S. 357, 20 Sup. Ct. 458, 44 L. Ed. 503 (1900). * * *' While it is apparent that this ruling should have put the subject at rest, obviously the misconception of the Auditor as to the nature of his powers prevented that result from being accomplished and the Auditor refused to carry out the act of Congress and deducted from the salary of the judge, fixed by Congress, not only a charge for rent of quarters, but a sum which he considered due because of the absence of the judge from the Canal Zone during a certain period. The judge thereupon commenced the proceeding which is before us to compel the Auditor to perform his plain duty under the law and pay the salary without the deductions. As the result of the action of the Auditor and the necessity for bringing the suit, the expense was occasioned the United States of calling a judge from the United States to hear the cause and Judge Clayton of the Middle and Northern Districts of Alabama proceeded to the Canal Zone to discharge that duty. He did so, stating the reasons which controlled him in an elaborate and careful opinion making perfectly manifest the error of the action of the Auditor and his wrong in refusing to observe the ruling of the Attorney General in the premises. 241 Fed. 747, 154 C. C. A. 449. From the consequent judgment directing the payment of salary to be made without the deductions the Auditor prosecuted error to the Circuit Court of Appeals for the Fifth Circuit, in which court the judgment below was affirmed, and it is a further writ of error prosecuted by the Auditor from this court to that ruling which brings the subject-matter before us now. The expense of printing a voluminous record has been occasioned and the views of the Auditor have been pressed before us in a printed argument of more than one hundred pages. We think, however, that we need not follow or discuss that argument, as we are of opinion hat it is obvious on the face of the statement of the case that the Auditor had no power to refuse to carry out the law and that any doubt which he might have had should have been subordinated, first, to the ruling of the Attorney General and, second, beyond all possible question to the judgments of the courts below. It follows, therefore, that the prosecution of the writ of error from this court constituted a plain abuse by the Auditor of his administrative discretion. In an ordinary case the situation would be one not only justifying but making it our duty to direct the enforcement of Rule 23, (29 Sup. Ct. xix) as to damages. As, however, the judgment is not one for money but relates solely to the obligation to perform a manifest public duty, and plain as may have been the abuse of discretion committed, we are fain to believe it involved no intentional disregard of official duty, we pass that subject by and our order will be. Judgment affirmed.

242.US.333

An order of a state commission fixing a rate for transportation in purely intrastate commerce will not be disturbed upon the grounds that it produces discrimination against interstate commerce, interferes with administrative provisions of the Interstate Commerce Act, and intrudes upon the jurisdiction of the Interstate Commerce Commission, where the relations of the rate fixed to interstate commerce have not been determined by the Interstate Commerce Commission and are not established by the evidence, and where the certainty that it will operate to the injury of those engaged in such commerce is not made to appear. 268 Illinois, 49, affirmed.

Error to review a judgment of the supreme court of Illinois sustaining an order of the State Public Utilities Commission, made in a proceeding brought by Poehlmann Brothers Company against plaintiff in error, here called the railway company. Poehlmann Brothers Company is an Illinois corporation engaged in growing and selling flowers, and has its greenhouse at Morton Grove, Cook county, Illinois, a station on the railway company's line, 3 miles northeast of Chicago. Poehlmann Brothers Company uses in its greenhouse about 30,000 tons of coal each year, 95 per cent of which is mined in Illinois, and 500 cars of manure which comes from places in and around Chicago. The coal and manure move to Morton Grove over the railway, which receives them at Galewood, a station inside of Chicago. The distance from Galewood to Morton Grove is about 12 miles and is the haul involved in this case. There are no joint or through rates on coal to Morton Grove from points in Illinois or from points in other states, the rate from Galewood to Morton Grove being a separate rate. The rates on cars of coal to Chicago vary according to point of origin, but in all cases the charge of the railway company from Galewood to Morton Grove is 40 cents a ton, and is published as such, for which the railway company is alone responsible. July 18, 1913, Poehlmann Brothers Company filed a petition with the Warehouse Commission of Illinois, predecessor of defendant in error, charging that such rate of 40 cents a ton on coal and manure from Galewood to Morton Grove was unjust and unreasonable. After a hearing the Commission so found, and that 20 cents a ton on coal and 25 cents on manure were just and reasonable rates, and should be put into effect by the railway company. The order was affirmed by the circuit court of Sangamon county and subsequently by the supreme court of the state. 268 Ill. 49, P.U.R.1915D, 133, 108 N. E. 729. The error assigned against the order of the Commission and the judgment sustaining it is that so far as the order relates to coal, the rates on manure not being involved, it violates the commerce clause of the Constitution of the Uited States in that: (1) The order assumes to regulate a feature of commerce in which interstate and intrastate commerce are commingled, and after jurisdiction of that feature had been taken by the Interstate Commerce Commission, and regulates such feature of commerce differently from and inconsistently with the regulation of the Interstate Commerce Commission. (2) It requires the railway company to discriminate against localities outside of Illinois and give preference to those inside of the state in the charges that the company makes for the same service. (3) It violates § 3 of the Interstate Commerce Act as amended (Comp. St. 1913, § 8565) by requiring the company to give unreasonable preference and advantage to producers and shippers of coal in the state, and subject those outside of the state to unreasonable prejudice and disadvantage by obliging the company to charge a less rate for the transportation of coal in carload lots between specified points on its rails when the coal originates within the state than it is lawfully permitted to charge and does charge for the same service on interstate shipments of coal. (4) It violates § 6 of the Interstate Commerce Act as amended (section 8569) by requiring the railway company to charge a less compensation on carloads of coal between certain points named in tariffs on file with the Interstate Commerce Commission than the rates and charges specified in such tariffs. (5) It violates § 13 of the Interstate Commerce Act (section 8581) by disregarding the right of the railway company to have the Interstate Commerce Commission investigate any complaint of the Railroad Commission of any state and obtain such relief as the complaint might merit. (6) It violates § 15 of the Interstate Commerce Act (section 8583), which gives the Interstate Commerce Commission power over through rates and joint rates and transportation participated in by two or more carriers, the order under review seeking to regulate one factor of such through or joint rate without regard to the other. (7) The order is unreasonable and unlawful in that the Commission, without finding the through rate excessive or discriminatory, or having facts before it on which to make such finding, made the order to reduce solely for the benefit of Illinois shippers and producers, the transportation charges being a factor of the transportation service involved that is common to interstate and intrastate commerce, and over which factor the Interstate Commerce Commission had previously assumed jurisdiction. The case, we think, is in small compass, although on its face and in the argument of counsel for plaintiff in error it concerns such relation between state and interstate rates as to make the order an interference with the latter. The facts remove the order from such effect. The coal that the order regulates has its point of shipment and its point of destination in Illinois, and was for transportation for 12 miles on the lines of the railway company in the state. But counsel say that the rate for those 12 miles, that is, for the haul from Galewood to Morton Grove, is part of the through rate from the coal-producing districts to Galewood, which is a station in Chicago, that such producing districts may be inside or outside of the state, and that the rate, therefore, may be a part of interstate commerce as well as intrastate commerce. There hence comes into the case, counsel contends, 'a feature of commerce in which interstate and intrastate commerce are commingled;' and that, the interstate element dominating, the State Commission had no jurisdiction to make its order, and it is asserted that discriminations and preferences between shippers and localities will result from it. The contention based upon an interstate commerce element in a rate, that is, the relation of interstate and intrastate rates and their reciprocal effect, was at one time quite formidable, but since the Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18, its perplexity, arising from a conflict of powers, has been simplified. In those cases it was decided that there is a field of operation for the power of the state over intrastate rates and the power of the nation over interstate rates. In other words, and in the language of Mr. Justice Hughes, who delivered the opinion of the court: 'The fixing of reasonable rates for intrastate transportation was left where it had been found; that is, with the states and the agencies created by the states to deal with that subject (Missouri P. R. Co. v. Larabee Flour Mills Co. 211 U. S. 612, 53 L. ed. 352, 29 Sup. Ct. Rep. 214),' until the authority of the state is limited 'through the exertion by Congress of its paramount constitutional power where there may be a blending of interstate and intrastate operations of interstate carriers.' But it was decided that Congress had not exerted its power by the enactment of the Interstate Commerce Act. It is, however, said that the Interstate Commerce Commission had assumed jurisdiction of the rates at the instance of Poehlmann Brothers Company, and had rendered a decision sustaining the rates that the order under review adjudges unreasonable. There was such a complaint and the testimony taken was introduced in the present case. But the complaints are different. That before the Interstate Commerce Commission concerned coal from West Virginia. The complaint in the present case concerns coal shipped from a place in Illinois to another place in Illinois, the latter place being Morton Grove, and the rate to it from Galewood being involved. The testimony taken before the Interstate Commerce Commission happened to have material relevancy to such rate and hence was admitted in evidence. The rulings were different. It was proper for the Interstate Commerce Commission to consider the rate as part of a through rate from points outside of the state. It was equally proper for the State Commission to consider it as part of the intrastate haul, and we do not think the rates were so related as to exclude the exercise of jurisdiction by the State Commission. The order of the Interstate Commerce Commission is not in the record. It is, however, quoted in the briefs of counsel, and it appears therefrom that neither the through rate nor the carriers responsible for and participating in it were before the Commission. The Commission said: 'Considering the absence of evidence as to the reasonableness of the through rate, and the unsatisfactory evidence as to the separately established rates under attack, we must refrain from expressing any conclusion upon the reasonableness of either rate.' But a relation is asserted between the state and interstate haul because it is said to be manifest that the order of the State Commission gives commercial advantages to shippers and producers of coal in Illinois over shippers and producers outside of the state. But there is nothing in the record that justifies the confidence of the assertion. There are too many factors to be considered for such offhand declarations to be accepted. Some relation we may admit between the state and interstate service, but the evidence does not bring it within that certainty and precision of influence that induced the decision in Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833, but leaves it controlled by the Minnesota Rate Cases, supra; Oregon R. & Nev. Co. v. Campbell, 230 U. S. 525, 57 L. ed. 1604, 33 Sup. Ct. Rep. 1026; and Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. Rep. 48. Therefore, the order is not subject to the charges against it, and §§ 3, 13, and 15 of the Interstate Commerce Act have no application. The motion to dismiss is denied. The judgment is affirmed.

244.US.630

The court has jurisdiction by writ of error to review this judgment of the Court of Appeals of the District of Columbia in a case arising under the Federal Employers' Liability Act of April 22, 1908, 35 Stat. 65, as amended April 5, 1910, 36 Stat. 291. Defendant was incorporated as an ordinary railway company (as distinguished from a street railway company), with full powers of eminent domain, and owned a line of electric railway built largely on a private right of way from a terminus in the District of Columbia to a terminus in Maryland, which it operated as a common carrier of passengers for hire between those termini. Held that it came within the Federal Employers' Liability Act. If the declaration alleges that the injuries charged to defendant's negligence caused plaintiff's intestate to "suffer intense pain," an amendment at trial adding that deceased endured "conscious pain and suffering" is but an elaboration of the existing statement, and is not open to the objection that it introduces a new cause of action barred by the two year limitation of the Federal Employers' Liability Act. Maintaining a trolley pole closer to the track than others on the line, and so close that a conductor can not safely discharge his duties, affords ample ground for a finding of negligence by the jury. 45 App. D. C. 484, affirmed.

This case is before us on writ of error to the court of appeals for the District of Columbia, and we shall refer to the parties as they appeared in the trial court, the defendant in error as plaintiff and the plaintiff in error as defendant. On July 8, 1913, the plaintiff's decedent was a conductor in the employ of the defendant, a common carrier of passengers by an electric railroad, with termini as hereinafter described, and when standing or moving along the 'running or stepping board' of an open summer car, in the evening, after dark, his body in some manner struck against one of the poles supporting the overhead wires and he was so injured that he died within an hour. The negligence charged in the third and fourth counts of the declaration on which the case was tried is the placing of the poles so close to the track that the decedent did not have a reasonably safe place in which to discharge the duties required of him, and the allegations of these counts bring the case within the Federal Employers' Liability Act, approved April 22, 1908 (35 Stat. at L. 65, chap. 149), as amended April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1916, § 8662). A motion by the defendant in error to dismiss the writ of error for want of jurisdiction and a petition filed by the plaintiff in error for a writ of certiorari, both of which were postponed to the hearing on the merits, are denied. Coming to the merits of the case we are confronted with eighteen claims of error, which, however, resolve themselves into but three of substance sufficient to call for attention, viz.: (1) That the defendant at the time of the accident was not a 'common carrier by railroad' within the meaning of the Federal Employers' Liability Act of April 22, 1908. (2) That the trial court erred in permitting the plaintiff to amend her declaration on the trial, after all the testimony had been introduced, and at a time more than two years after the accident had occurred, by inserting a claim for 'conscious pain and suffering' of the deceased. This amendment, it is claimed, in effect allowed a recovery on a second and new cause of action after it was barred by the two years' limitation of the act. (3) That the court erred in submitting the case to the jury, for the reason that no substantial evidence of engligence was introduced on the trial. Four acts of Congress, the first providing for the incorporation of the defendant company and the other three amending the first, were introduced in evidence on the theory that they were private acts and otherwise would not be before this court. With these acts and the evidence and admissions shown in the record before us, it is clear that the defendant was incorporated as, and at the time of the accident complained of was, a railway company, not a street railway company; that it had full powers of eminent domain; that at the time of the accident complained of it owned and operated a line of electric railway extending from a terminus within the District of Columbia to a terminus at Cabin John creek, in the state of Maryland, a large part of the line being constructed on a private right of way, and that it was at that time a common carrier of passengers for hire between its termini. It is argued that under the decision in Omaha & C. B. Street R. Co. v. Interstate Commerce Commission, 230 U. S. 324, 57 L. ed. 1501, 46 L.R.A.(N.S.) 385, 33 Sup. Ct. Rep. 890, the railway of the defendant was a street railroad, and that therefore the defendant was not a 'common carrier by railroad' within the terms of the Act of 1908 as amended. That case dealt with a purely street railway in the streets of two cities, and the decision was that it was not a 'railroad' such as was intended to be placed under the jurisdiction of the Interstate Commerce Commission by the Interstate Commerce Act of 1887 [24 Stat. at L. 379, chap. 104, Comp. Stat. 1916, § 8563]. The case is of negligible value in determining either the construction of the act we are considering in this case, or the classification of the defendant, which clearly enough is a suburban railroad common carrier of passengers within the scope of the Federal Employers' Liability Act, as is sufficiently decided by United States v. Baltimore & O. S. W. R. Co. 226 U. S. 14, 57 L. ed. 104, 33 Sup. Ct. Rep. 5; Kansas City Western R. Co. v. McAdow, 240 U. S. 51, 60 L. ed. 520, 36 Sup. Ct. Rep. 252, 11 N. C. C. A. 857; Spokane & I. E. R. Co. v. United States, 241 U. S. 344, 60 L. ed. 1037, 36 Sup. Ct. Rep. 668; and Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497, 60 L. ed. 1125, 36 Sup. Ct. Rep. 683, 12 N. C. C. A. 1083. This first claim of error of the defendant must be denied. Seven days before the case came on for trial, the court granted leave to the plaintiff, no objection being noted, to amend the fourth count of her declaration by adding the allegation that the injuries received by the deceased caused him to 'suffer intense pain.' After all of the evidence had been introduced on the trial, the court, immediately before charging the jury, permitted the plaintiff to further amend the third and fourth counts of her declaration by adding to each the allegation that the negligence of the defendant resulted in 'conscious pain and suffering' to the deceased. To the allowing of this last amendment the defendant objected, and, the objection being overruled, excepted, and it thereupon answered the declaration as thus amended, pleading 'not guilty and the statute of limitations of two years.' The death of plaintiff's decedent occurred on July 8, 1913. This amendment was allowed on October 29, 1915, and it is urged that the effect of it was to allow the plaintiff to recover upon a claim that the deceased endured 'conscious pain and suffering,' which would not have been allowed without the amendment, and that such claim was barred by the provision of the Employers' Liability Act, that no action shall be maintained under it unless commenced within two years from the time the cause of action accrued. Before this last amendment the third and fourth counts of the declaration stated a case of negligence plainly within the terms of the Employers' Liability Act, and claimed damages for the death of deceased from injuries which the prior amendment alleged caused him to 'suffer intense pain.' Under these two counts as they then stood, testimony was admitted, without objection, tending to prove that the deceased suffered pain during the comparatively short interval between the time he was injured and when he lapsed into the period of unconsciousness which preceded his death. As we have seen, the fourth count, before the amendment objected to, alleged that the injuries received caused the deceased to suffer 'intense pain,' and the added allegation is that the injuries caused him 'conscious pain and suffering.' The difference between the two, if there is any difference at all, is too elusive for application in the practical administration of justice, and the claim that this amendment added a new cause of action to the declaration is too fanciful for discussion. At most it was a slight elaboration of a probably sufficiently claimed element of damage, and the allowance of the amendment was well within the authority and the effect of Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 57 L. ed. 355, 33 Sup. Ct. Rep. 135, Ann. Cas. 1914B, 134; Illinois Surety Co. v. United States, 240 U. S. 214, 60 L. ed. 609, 36 Sup. Ct. Rep. 321; and Seaboard Air Line R. Co. v. Renn, 241 U. S. 290, 60 L. ed. 1006, 36 Sup. Ct. Rep. 567. A word will suffice for the claim remaining. The trolley pole against which plaintiff's decedent struck was shown to be considerably closer to the track than the other poles on the line, and it is sufficient to say that the trial and appellate courts both found that the maintaining of such pole so close to the track that a conductor could not safely discharge the duties required of him constituted evidence of negligence sufficient to justify submitting the case to the jury, and with this conclusion we cordially agree. The record shows that the case was submitted to the jury in a comprehensive charge sufficiently favorable to the defendant, and the judgment of the Court of Appeals of the District of Columbia is affirmed. The CHIEF JUSTICE did not take part in the consideration or decision of this case.

245.US.319

The filing of a certificate of arrival, as provided in § 4, subdivision 2, of the Naturalization Act, is an essential prerequisite to a valid order of naturalization. The court of naturalization having assumed to dispense with this requirement upon proof of reasons why the certificate of arrival could not be obtained, held, that the certificate of naturalization was subject to be set aside, in a suit by the United States under § 15 of the act, as a certificate "illegally procured." Sections 11 and 15 of the Naturalization Act afford cumulative protection against fraudulent or illegal naturalization. In a suit under the latter to set aside a certificate granted in disregard of an essential requirement of the statute, the United States is not estopped by the order of naturalization, although, pursuant to the former section, it entered its appearance in the naturalization proceedings and there unsuccessfully raised the same objection. 230 Fed. Rep. 950, reversed.

This suit was brought under Section 151 of the Naturalization Act (June 29, 1906; 34 Stat. 596) in the District Court of the United States for the Northern District of Iowa, to cancel a certificate of naturalization issued to Ness by a state court of Iowa on May 21, 1912. The naturalization is alleged to have been 'illegally procured,' because the petitioner failed to file with the clerk the certificate from the Department of Commerce and Labor 'stating the time, place and manner' of arrival as provided in Section 4, subdivision Second.2 Ness admitted this failure; but contended that on the facts hereinafter stated he was nevertheless entitled to naturalization, and that, in any event, his right thereto had become res judicata for the following reason: The United States entered its appearance under Section 113 (by the chief naturalization examiner of the Department of Commerce and Labor) 'in opposition to the granting' of naturalization and submitted a motion that the petition be dismissed on the ground that the certificate of arrival was not attached. The motion was duly considered by the court and denied. Then, after hearing the petitioner and his witnesses, the order of naturalization was granted. This bill was filed within six months thereafter. The facts relied upon by Ness as entitling him to naturalization, although he had not filed the certificate of arrival, were as follows: He emigrated from Norway and arrived at the port of Buffalo by rail via Canada in August, 1906. Ignorant of the requirements of the immigration and naturalization laws of the United States and unobserved by officials of the government and of the railroad, he entered this country without submitting himself to physical examination, without paying the alien head tax, and without having his entry registered. After filing his petition for naturalization he learned that it was defective for failure to file the certificate of arrival and immediately applied to the Bureau of Immigration and Naturalization for such certificate, but found it could not be furnished, because no registry of his entry had been made. After receiving his certificate of naturalization, he offered to pay the head tax and to submit himself to medical examination; but his offer was refused. He possessed the personal qualifications which entitle aliens to admission and to citizenship. The District Court dismissed the bill (D. C.) 217 Fed. 169. Its decree was affirmed by the Circuit Court of Appeals, 230 Fed. 950, 145 C. C. A. 144, Ann. Cas. 1917C, 41, and this court granted a writ of certiorari, 242 U. S. 634, 37 Sup. Ct. 18, 61 L. Ed. 538. The case presents questions of importance in the administration of the Naturalization Act. First: Whether filing the certificate of arrival as provided in Section 4, subdivision Second is an essential prerequisite to a valid order of naturalization. It is urged that the certificate of arrival is merely a form of proof which the naturalization court has power to dispense with for cause. The uses served by the certificate, the history of the provision and its relation to other parts of the act show that this contention is unsound. Section 1 requires that a registry be made of certain facts concerning each alien arriving in the United States; and that 'a certificate of such registry with the particulars thereof be granted' to each alien.4 Section 5 (Comp. St. 1916, § 4353) requires clerks of court to give public notice of each petition for naturalization filed. Section 6 prohibits courts from taking final action upon any petition until 90 days after such notice has been given. That period is provided so that the examiners of the Bureau of Naturalization and others may have opportunity for adequately investigating whether reasons exist for denial of the petition. The certificate of arrival is the natural starting point for this investigation. It aids in ascertaining (a) whether the petitioner was within any of the classes of aliens who are excluded from admission by Sections 2 and 38 of the Immigration Act of February 20, 1907 (c. 1134, 34 Stat. 898, Comp. St. 1916, §§ 4244, 4287); (b) whether he is among those who are excluded from naturalization under Section 7 of the Naturalization Act (Comp. St. 1916, § 4363) for political beliefs or practices; (c) whether he is the same person whose declaration of intention to become a citizen is also attached to the petition under Section 4, subdivision Second; (d) whether the minimum period of five years' continuous residence prescribed by Section 4, subdivision Fourth, has been complied with. The certificate of arrival is in practice deemed so important that in the regulations issued by the Secretary of Labor under Section 28 (Comp. St. 1916, § 4383) 'for properly carrying into execution the various provisions' of the act, the clerk of court is advised that he 'should not commence the execution of the petition until he has received the certificate of arrival.'5 Filing the certificate of arrival being a matter of substance, it is clear that no power is vested in the naturalization court to dispense with it. Section 4 declares: 'That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise.' Section 27 declares: 'That substantially the following forms shall be used in the proceedings to which they relate'; and the form of petition therein prescribed recites: 'Attached hereto and made a part of this petition' is 'the certificate from the Department of Labor required by law.' Experience and investigation had taught that the widespread frauds in naturalization, which led to the passage of the Act of June 29, 1906, were, in large measure, due to the great diversities in local practice, the carelessness of those charged with duties in this connection, and the prevalence of perjured testimony in cases of this character. A 'uniform rule of naturalization,' embodied in a simple and comprehensive code under federal supervision, was believed to be the only effective remedy for then existing abuses. And in view of the large number of courts to which naturalization of aliens was intrusted and the multitude of applicants6—uniformity and strict enforcement of the law could not be attained unless the Code prescribed also the exact character of proof to be adduced. The value of contemporary documentary evidence was recognized; and the certificate of arrival was, therefore, specifically included among the prerequisites to naturalization.7 Naturalization granted without the certificate having been filed, is, therefore, 'illegally procured';8United States v. Ginsberg, 243 U. S. 472, 37 Sup. Ct. 422, 61 L. ed. 853; and it may, at least where the proceedings were exparte, be set aside under Section 15. Second: Whether an order entered in a proceeding to which the United States became a party under Section 11 is res judicata as to matters actually litigated therein, so that the certificate of naturalization cannot be set aside under Section 15, as having been 'illegally procured.' This question, discussed and left undecided, in Johannessen v. United States, 225 U. S. 227, 238, 32 Sup. Ct. 613, 56 L. Ed. 1066, is, in effect: Do Section 11 and Section 15 afford the United States alternative or cumulative means of protection against illegal or fraudulent naturalization under the Act of June 29, 1906? The remedy afforded by Section 15 for setting aside certificates of naturalization is broader than that afforded in equity, independently of statute, to set aside judgments, United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Kibbe v. Benson, 17 Wall. 624, 21 L. Ed. 741; but it is narrower in scope than the protection offered under Section 11. Opposition to the granting of a petition for naturalization may prevail, because of objections to the competency or weight of evidence or the credibility of witnesses, or mere irregularities in procedure. A decision on such minor questions, at least of a state court of naturalization, is, though clearly erroneous, conclusive even as against the United States if it entered an appearance under Section 11. For Congress did not see fit to provide for a direct review by writ of error or appeal.9 But where fraud or illegality is charged, the act affords, under Section 15, a remedy by an independent suit 'in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit.' If this suit is brought in the federal District Court, its decision will also be subject, under the general law, to review by the Circuit Court of Appeals, and, on certiorari, by this court. Such an independent suit necessarily involves considerable delay and expense; and it may subject the individual to great hardship. On the other hand, a contest in the court of naturalization is usually disposed of expeditiously and with little expense. The interest of all concerned is advanced by encouraging the presentation of known objections to naturalization at the earliest possible stage of the proceedings; so that the petitioner may, if the defects are remediable, remove them, and if not, may adopt, without delay, such course, if any, as will ultimately entitle him to citizenship. It would have defeated this purpose to compel the United States to refrain from presenting any objection, or the objection of illegality, in the court of naturalization, unless it is willing to accept the decision of that court as final. It was the purpose of Congress, by providing for appearances under Section 11, to aid the court of naturalization in arriving at a correct decision and so to minimize the necessity for independent suits under Section 15. In most cases this assistance could be given best by an experienced examiner of the Bureau of Naturalization familiar with the sources of information. Section 11, unlike Section 15, does not specifically provide that action thereunder shall be taken by the United States district attorneys; and if appearance under Section 11 on behalf of the government should be held to create an estoppel, no good reason appears why it should not arise equally whether the appearance is by the duly authorized examiner or by the United States attorney.10 But in our opinion Section 11 and Section 15 were designed to afford cumulative protection against fraudulent or illegal naturalization. The decision of the Circuit court of appeals is therefore Reversed.

244.US.1

When an applicant for a patent admits that the invention shown in his. application was made at a date subsequent to the date upon which another application for the same invention was filed, and by amendment of his application adopts the prior applicant's claims, he thereby concedes the priority of the other's invention, its utility and the sufficiency of the claims. In such a case the Commissioner of Patents can not be required by mandamus to declare an interference. Under Rev. Stats., § 4904, the duty of the Commissioner to declare an interference arises only when, in the exercise of his judgment upon the facts presented, he is of opinion that a senior application will be interfered with by a junior one; the mere fact that the junior application covers the same ground or that the junior applicant asserts an interference is not enough to require the Commissioner to act. The judicial remedy for determining priority of invention is by suit in equity between the parties, not by mandamus against the Commissioner in an attempt to control the administrative discretion conferred upon him by Rev. Stats., § 4904. 45 App. D. C. 185, reversed.

The case is not in broad compass. It depends upon a few simple elements. Section 4904, Rev. Stat. Comp. Stat. 1913, § 9449, provides: 'Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with an unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be, and shall direct the primary examiner to proceed to determine the question of priority of invention. And the Commissioner may issue a patent to the party who is adjudged the prior inventor, unless the adverse party appeals from the decision of the primary examiner, or of the board of examiners-in-chief, as the case may be, within such time, not less than twenty days, as the Commissioner shall prescribe.' The duty prescribed by this section and the other duties of the Commissioner, it was provided (Rev. Stat. § 483, Comp. Stat. 1913, § 745), might be regulated by rules established by the Commissioner, subject to the approval of the Secretary of the Interior. And rules were established. They define an interference to be a proceeding instituted for the purpose of determining the question of priority of invention between two or more parties claiming the same patentable invention (rule 93), and provide that an interference shall be declared between two or more original applications containing conflicting claims (rule 94). Before the declaration of an interference all preliminary questions must be settled by the primary examiner, the issue clearly defined, and the claims put in such condition that they will not require alteration (rule 95). Whenever the claims of the co-pending applications differ in phraseology they must be brought to expression substantially in the same language, and claims may be suggested to the applicants, and, if not followed, the invention covered by them shall be considered as disclaimed. The declaration of an interference will not be delayed by the failure of a party to put his claim in condition for allowance (rule 96). Each party to the interference will be required to file a concise statement, under oath, showing (1) the date of original conception of his invention, (2) the date upon which a drawing of it was made, (3) the date of its disclosure to others, (4) the date of its reduction to practice, (5) the extent of its use, and (6) the date and number of any foreign application. If a drawing has not been made or the invention has not been reduced to practice or disclosed to others or used to any extent, the statement must specifically disclose these facts (rule 110). Priority of invention is necessarily the essential thing, and to determine it, interference proceedings are provided. But are they considered as a matter of course on the mere assertion or appearance of a conflict? Upon the answer to the question the controversy here turns. The Commissioner contends for a negative answer and supports the contention by the language of § 4904 (Comp. Stat. 1913, § 9449), reinforced by the assertion that there is no necessity for proceedings to determine what is already apparent, as in the pending case, by the admission of respondent. The mere fact of asserted antagonism does not put the proceedings in motion, is the contention. There must be the precedent and superintending judgment of the Commissioner. The law requires, it is said, his opinion to be exercised upon the effect of a conflict in applications, and such, indeed, is the language of § 4904 (Comp. Stat. 1913, § 9449). It provides that 'whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application . . . he shall give notice thereof . . . and shall direct the primary examiner to proceed to determine the question of priority of invention.' In opposition to this view petitioner replies that the only fact upon which the Commissioner is to exercise an opinion is the fact of the conflict in the applications; and, that fact ascertained, the duty is imperative upon the Commissioner to declare an interference. 'Interference, it is said, is a question of fact; it exists or it does not exist. If it exists, then priority must be determined in the way pointed out by the statute and rules.' Other conditions than priority in time determine priority of invention, it is insisted; that the rules of the Patent Office and the motions for which they provide contemplate such conditions; and that in twenty-five years of practice under them 'the question of interference, in fact, the question of seniority of the parties, the patentability of the claim to one or the other, and a number of other questions became inter partes, and it often happens that the interference is dissolved because of mistake in declaring it, or the burden of proof shifted on the ground that the senior party is not entitled to his original filing date as his effective date for the reason that he did not disclose the invention in his case as originally filed, or that his application discloses an inoperative embodiment of the invention, or that he was not entitled to make the claims, or that the junior party had an earlier filed case disclosing the invention, or that the issues as formed did not apply to the structures of the two parties.' The result of the practice is declared to be that it 'provides a judgment of record based solely upon an ex parte consideration by the Commissioner, and affords each of the parties an opportunity to contest the right of the other party to a judgment.' If there are such possibilities in some interferences, they are precluded in petitioner's case. Seven claims of a prior application were adduced by the Commissioner as making a conflict with the invention claimed by petitioner. The latter, through its attorney, adopted six of the claims and directed that they be inserted in its application. It did not intimate the existence of any circumstances which would overcome the priority of invention as determined by the difference in times of the conceptions of the contending applicants. The conceptions were thus established to be identical and that that of Fowler did not come to him until some months after the filing of the other application. And it is to be observed that the priority was complete. There was not only the precedent conception, but there was its expression in claims; and that it was practical, a useful gift to the world, petitioner concedes by adopting the claims. There were, therefore, all of the elements of a completed invention, —one perfected before the filing of petitioner's application, —all that the preliminary statement required by rule 110 could disclose. This, then, was the situation presented to the Commissioner. There was nothing shown to change it, there is nothing alleged in the petition for mandamus to change it, and there is only urged that an experience of twenty-five years has demonstrated that, in interference proceedings, circumstances may be shown that determine against the date of filing or the claim of invention. If it could be conceded that there is antagonism between § 4904 (Comp. Stat. 1913, § 9449) and the rules, the former must prevail. United States ex rel. Steinmetz v. Allen, 192 U. S. 543, 565, 48 L. ed. 555, 563, 24 Sup. Ct. Rep. 416. But there is no antagonism. The former provides that 'whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application . . . he . . . shall direct the primary examiner to proceed to determine the question of priority of invention.' The section, therefore, commits to the opinion (judgment) of the Commissioner the effect of an application upon a pending one,—whether it will interfere with a pending one; something more, therefore, than the fact of two applications,—something more than the mere assertion of a claim. The assertion must be, in the opinion of the Commissioner, an interference with another. And it is this other that is first in regard, not to be questioned except at the instance of the Commissioner by an exercise of judgment upon the circumstances. And there is no defeat of ultimate rights; there may be postponement of their assertion remitted to a suit in equity under § 4918 (Comp. Stat. 1913, § 9463). But, anterior to such relief, petitioner contends that 'there is a fundamental and basic right of opposition on the part of any applicant, whether junior or senior, to prevent the wrongful grant of a patent to his opponent.' It is further contended that the declaration of an interference and the motions which are permitted to be made under the rules 'provide a judgment of record based solely upon an ex parte consideration by the Commissioner, and affords each of the parties an opportunity to contest the right of the other party to a judgment.' There indeed seems to be a less personal right claimed,—the right of opposition in the interest of the public, displacing the superintendency of the Commissioner constituted by the law. It is to be remembered that the law gives the Commissioner both initial and final power. It is he who is to cause the examination of an asserted invention or discovery and to judge of its utility and importance;1 it is he who is to judge (be of opinion) whether an application will interfere with a pending one;2 and it is he who, after an interference is declared and proceedings had, is the final arbiter of its only controversy, priority of invention.3 The contentions of petitioner put these powers out of view, put out of view the fact that the so-called 'judgment of record' is, as the action of the Commissioner may be said to be, but a matter of administration. A suit in equity may follow and be instituted by either party, and even in it nothing can be determined but priority of invention. 'There is but one issue of fact in an interference suit. That issue relates to the dates wherein the interfering matter was respectively invented by the interfering inventors. If the complainant's invention is the older, the defendant's interfering claim is void for want of novelty. And the complainant's interfering claim is void for want of novelty if the defendant's invention is found to antedate the other.' Walker, Patents, 3d ed. § 317. Such suit, therefore, is the judicial remedy the law provides. Section 4904 (Comp. Stat. 1913, § 9449) concerns and regulates the administration of the Patent Office, and the utility of the discretion conferred upon the Commissioner is demonstrated by his answer in this case. Judgment reversed and case remanded with instructions to reverse the judgment of the Supreme Court of the District of Columbia, and direct it to discharge the rule and dismiss the petition.

244.US.416

By the principles fully settled in McCulloch v. Maryland and Osborn v. Bank, and other cases, the implied power of Congress to confer a particular function upon a national bank is to be tested, not by the nature of the function viewed by itself, but by its relations to all the functions and attributes of the bank considered as an entity; the necessity or appropriateness of the function .should be considered with reference to the situation to which it relates; and, as to what is necessary or appropriate, a court should not substitute its judgment for the judgment of Congress. As settled also by those cases, the circumstance that a function is of a class subject to state regulation does not prevent Congress from authorizing a national bank to exercise it; nor would it lie with the state power to forbid this. A business not inherently such that Congress may emppwer national banks to engage in it may nevertheless become apprQpriate to their functions if, by state law, state banking corporafions, trust companies, or other rivals of national banks are permitted to carry it on. Section 11 (k) of the Act of December 23, 1913, establishing the Federal Reserve Board, in authorizing the board "To.grant by special permit to national banks applying therefor, when not in contravention of state or local law, the right to act as trustee, executor, administrator, or registrar of stocks and bonds under such rules and regulations as the said board may prescribe," is, as here construed, a valid exercise of the power of Congress. The section authorizes the specified functions to be exercised by national banks when the right to perform them is given by state law, or is deducible therefrom through being sd conferred on state banks or corporations whose business in some degree rivals that of national banks; and it gives administrative power to the Reserve Board as a means of co6rdinating.such functions,' in their exercise by national banks, with the reasonable and nondiscriminating provisions of state law regulating their exercise as to state corporations. The section is not open to the objection that it confers legislative power on the Reserve Board. In proiding that the specified. functions may be exercised "when not in contravention of state or local law," Congress impliedly, if not expressly, authorized the institution and conduct in the state supreme court of proceedings in the nature of quo warranto to test whether the exercise of such finctions by a national bank is consistent with the state law. 192 Michigan, 640, reversed.

We are of opinion that the procedure resorted to was appropriate and that the state court was competent to administer relief, but we postpone stating our reasons on the subject until the merits have been passed upon. The court below held that an act of Congress conferring on national banks additional powers was in excess of the authority of Congress, and was hence repugnant to the Constitution. ——Mich. , 159 N. W. 335. The correctness of this conclusion is in substance the sole question for decision on the merits. Although the powers given were new, the principles involved in the right to confer them were long since considered and defined in adjudged cases. We shall first consider the leading of such cases and then, after stating this case, determine whether they are controlling, causing the subject not to be open for original consideration. In M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579, the bank had been incorporated by Congress with powers to transact business of both a governmental and of a private character. The question which was decided was the authority of Congress to grant such charter. Without undertaking to restate the opinion of Mr. Chief Justice Marshall, it suffices for the purpose of the matter now before us to say that it was held that although Congress was not expressly given the power to confer the charter, authority to do so was to be implied as appropriate to carry out the powers expressly given. In reaching this conclusion it was further decided that to recognize the existence of the implied power was not at all in conflict with article I., § 8, clause 18 of the Constitution, providing that Congress should have power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,' since that provision did not confine the implied authority to things which were indispensably necessary, but, on the contrary, gave legislative power to adopt every appropriate means to give effect to the powers expressly given. In terms it was pointed out that this broad authority was not stereotyped as of any particular time, but endured, thus furnishing a perpetual and living sanction to the legislative authority within the limits of a just discretion, enabling it to take into consideration the changing wants and demands of society and to adopt provisions appropriate to meet every situation which it was deemed required to be provided for. In fact, the rulings which we have stated were all summed up in the following passage, which ever since has been one of the principal tests by which to determine the scope of the implied power of Congress over subjects committed to its legislative authority: 'We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.' p. 421. In Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204, where substantially the subject was presented in the same form in which it had been passed upon in M'Culloch v. Maryland, Yielding to the request of counsel, the whole subject was reexamined M'Culloch v. Maryland, yielding to the request and upheld. Considering more fully, however, the question of the possession by the corporation of private powers associated with its public authority, and meeting the contention that the two were separable, and the one, the public power, should be treated as within, and the other, the private, as without, the implied power of Congress, it was expressly held that the authority of Congress was to be ascertained by considering the bank as an entity possessing the rights and powers conferred upon it, and that the lawful power to create the bank and give it the attributes which were deemed essential could not be rendered unavailing by detaching particular powers and considering them isolatedly, and thus destroy the efficacy of the bank as a national instrument. The ruling in effect was that although a particular character of business might not be, when isolatedly considered, within the implied power of Congress, if such business was appropriate or relevant to the banking business, the implied power was to be tested by the right to create the bank and the authority to attach to it that which was relevant, in the judgment of Congress, to make the business of the bank successful. It was said: 'Congress was of opinion that these faculties were necessary, to enable the bank to perform the services which are exacted from it, and for which it was created. This was certainly a question proper for the consideration of the national legislature.' p. 864. As the doctrines thus announced have been reiterated in a multitude of judicial decisions, and have been undeviatingly applied in legislative, and enforced in administrative, action, we come at once to state the case before us to see whether such doctrines dispose, without more, as a mere question of authority, of the subject under consideration. Section 11(k) of the Act of Congress approved December 23, 1913, establishing the Federal Reserve Board (38 Stat. at L. 251, 262, chap. 6, Comp. Stat. 1916, §§ 9785, 9794), gives to that board authority 'to grant by special permit to national banks applying therefor, when not in contravention of state or local law, the right to act as trustee, executor, administrator, or registrar of stocks and bonds under such rules and regulations as the said board may prescribe.' The First National Bank of Bay City, having obtained the certificate required, began the exercise of the powers stated. Thereupon certain trust companies which, under the laws of Michigan, had the authority to do the same character of business, petitioned the attorney general of the state to test the right of the national bank to use the functions, on the ground that its doing so was contrary to the laws of the state of Michigan, and that the action of the Federal Reserve Board, purporting to give authority, was in contravention of the Constitution of the United States. The attorney general then, on the relation of the trust companies, commenced in the supreme court of the state a proceeding in the nature of quo warranto to test the right of the corporation to exercise the functions. The bank, in defense, fully stated its Federal charter, the rights given by the act of Congress, and the action of the Federal Reserve Board taken thereunder. The attorney general demurred to this defense, first, because Congress had no power to confer the authority which was called in question; second, because if it had the power, it was without right to delegate to the Reserve Board the determination of when it should be used; and third, because the exercise of the powers was in contravention of the laws and authority of the state, and the Reserve Board, therefore, under the act, had no power to grant the certificate. The case was heard by the full court. In an opinion of one judge, which, it would seem, was written before the opinion of the court was prepared, it was elaborately reasoned that the exercise by a national bank of the functions enumerated in the section of the act of Congress under consideration would be contrary to the laws of the state, and therefore the Reserve Board, under the terms of the act of Congress, had no power to authorize their exertion. The opinion of the court, however, fully examining the grounds thus stated and disagreeing with them, expressly decided that corporations were authorized by the state law to perform the functions in question, and that the mere fact that national banks were Federal corporations did not render them unfit to assume and perform such duties under the state law, because the mere difference existing between the general administrative rules governing national banks and state corporations afforded no ground for saying that it would be contrary to state law for national banks to exert the powers under consideration. The authority conferred by the act of Congress and the rights arising from the certificate from such point of view were therefore upheld. Looking at the subject, however, from a consideration of the legislative power of Congress in the light of the decisions in M'Culloch v. Maryland and Osborn v. Bank of United States, and recognizing that it had been settled beyond dispute that Congress had power to organize banks and endow them with functions both of a public and private character, and in the assumed further light of the rule that every reasonable intendment must be indulged in in favor of the constitutionality of a legislative power exercised, it was yet decided that Congress had no authority to confer the powers embraced in the section of the act under consideration, and hence that the section was void. The court, following its reference to M'Culloch v. Maryland and Osborn v. Bank of United States, and to passages in the opinions in those cases, upholding the rightful possession by the bank of both public functions and private banking attributes, stated the grounds which led it to conclude that the rulings in the decided cases were distinguishable and therefore not controlling. It said: 'But in the reasoning of the judges, in the opinions to which I have referred, I find, I think, a conclusive argument supporting the proposition that Congress has exceeded its constitutional powers in granting to banks the right to act as trustees, executors, and administrators. If for mere profit it can clothe this agency with the powers enumerated, it can give it the rights of a trading corporation, or a transportation company, or both. There is, as Judge Marshall points out, a natural connection between the business of banking and the carrying on of Federal fiscal operations. There is none, apparently, between such operations and the business of settling estates, or acting as the trustee of bondholders. This being so, there is in the legislation a direct invasion of the sovereignty of the state which controls not only the devolution of estates of deceased persons and the conducting of private business within the state, but as well the creation of corporations and the qualifications and duties of such as may engage in the business of acting as trustees, executors, and administrators. Such an invasion I think the court may declare and may prevent by its order operating upon the offending agency.' [——Mich. ——, 159 N. W. 339.] But we are of opinion that the doctrine thus announced not only was wholly inadequate to distinguish the case before us from the rulings in M'Culloch v. Maryland and Osborn v. Bank of United States, but, on the contrary, directly conflicted with what was decided in those cases; that is to say, disregarded their authority so as to cause it to be our duty to reverse for the following reasons: 1. Because the opinion of the court, instead of testing the existence of the implied power to grant the particular functions in question by considering the bank as created by Congress as an entity, with all the functions and attributes conferred upon it, rested the determination as to such power upon a separation of the particular functions from the other attributes and functions of the bank, and ascertained the existence of the implied authority to confer them by considering them as segregated; that is, by disregarding their relation to the bank as component parts of its operations,—a doctrine which, as we have seen, was in the most express terms held to be unsound in both of the cases. 2. Because while, in the premise to the reasoning, the right of Congress was fully recognized to exercise its legislative judgment as to the necessity for creating the bank, including the scope and character of the public and private powers which should be given to it, in application the discretion of Congress was disregarded or set aside by exercising judicial discretion for the purpose of determining whether it was relevant or appropriate to give the bank the particular functions in question. 3. Because even under this mistaken view the conclusion that there was no ground for implying the power in Congress was erroneous because it was based on a mistaken standard, since, for the purpose of testing how far the functions in question which were conferred by the act of Congress on the bank were relevant to its business, or had any relation to discrimination by state legislation against banks created by Congress, it considered not the actual situation, that is, the condition of the state legislation, but an imaginary or nonexisting condition; that is, the assumption that, so far as the state power was concerned, the particular functions were in the state enjoyed only by individuals or corporations not coming at all, actually or potentially, in competition with national banks. And the far-reaching effect of this error becomes manifest when it is borne in mind that, plainly, the particular functions enumerated in the statute were conferred upon national banks because of the fact that they were enjoyed as the result of state legislation, by state corporations, rivals in a greater or less degree of national banks. 4. In view of the express ruling that the enjoyment of the powers in question by the national bank would not be in contravention of the state law, it follows that the reference of the court below to the state authority over the particular subjects which the statute deals with must have proceeded upon the erroneous assumption that, because a particular function was subject to be regulated by the state law, therefore Congress was without power to give a national bank the right to carry on such functions. But if this be what the statement signifies, the conflict between it and the rule settled in M'Culloch v. Maryland and Osborn v. Bank of United States is manifest. What those cases established was that although a business was of a private nature and subject to state regulation, if it was of such a character as to cause it to be incidental to the successful discharge by a bank chartered by Congress of its public functions, it was competent for Congress to give the bank the power to exercise such private business in co-operation with or as part of its public authority. Manifestly this excluded the power of the state in such case, although it might possess in a general sense authority to regulate such business, to use that authority to prohibit such business from being united by Congress with the banking function, since to do so would be but the exertion of state authority to prohibit Congress from exerting a power which, under the Constitution, it had a right to exercise. From this it must also follow that even although a business be of such a character that it is not inherently considered susceptible of being included by Congress in the powers conferred on national banks, that rule would cease to apply if, by state law, state banking corporations, trust companies, or others which, by reason of their business, are rivals or quasi rivals of national banks, are permitted to carry on such business. This must be, since the state may not by legislation create a condition as to a particular business which would bring about actual or potential competition with the business of national banks, and at the same time deny the power of Congress to meet such created condition by legislation appropriate to avoid the injury which otherwise would be suffered by the national agency. Of course, as the general subject of regulating the character of business just referred to is peculiarly within state administrative control, state regulations for the conduct of such business, if not discriminatory or so unreasonable as to justify the conclusion that they necessarily would so operate, would be controlling upon banks chartered by Congress when they came, in virtue of authority conferred upon them by Congress, to exert such particular powers. And these considerations clearly were in the legislative mind when it enacted the statute in question. This result would seem to be plain when it is observed (a) that the statute authorizes the exertion of the particular functions by national banks when not in contravention of the state law; that is, where the right to perform them is expressly given by the state law; or, what is equivalent, is deducible from the state law because that law has given the functions to state banks or corporations whose business in a greater or less degree rivals that of national banks, thus engendering from the state law itself an implication of authority in Congress to do as to national banks that which the state law has done as to other corporations; and (b) that the statute subjects the right to exert the particular functions which it confers on national banks to the administrative authority of the Reserve Board, giving besides to that board power to adopt rules regulating the exercise of the functions conferred, thus affording the means of coordinating the functions when permitted to be discharged by national banks with the reasonable and nondiscriminating provisions of state law regulating their exercise as to state corporations,—the whole to the end that harmony and the concordant exercise of the national and state power might result. Before passing to the question of procedure we think it necessary to do no more than say that a contention which was pressed in argument, and which it may be was indirectly referred to in the opinion of the court below, that the authority given by the section to the Reserve Board was void because conferring legislative power on that board, is so plainly adversely disposed of by many previous adjudications as to cause it to be necessary only to refer to them. Marshall Field & Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495; Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349; United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480; Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. ed. 435, 30 Sup. Ct. Rep. 356; Intermountain Rate Cases (United States v. Atchison, T. & S. F. R. Co.) 234 U. S. 476, 58 L. ed. 1408, 34 Sup. Ct. Rep. 986. The question of the competency of the procedure and the right to administer the remedy sought then remains. It involves a challenge of the right of the state attorney general to resort in a state court to proceedings in the nature of quo warranto to test the power of the corporation to exert the particular functions given by the act of Congress because they were inherently Federal in character, enjoyed by a Federal corporation, and susceptible only of being directly tested in a Federal court. Support for the challenge in argument is rested upon Ableman v. Booth, 21 How. 506, 16 L. ed. 169; Tarble's Case, 13 Wall. 397, 20 L. ed. 597; Van Reed v. People's Nat. Bank, 198 U. S. 554, 557, 49 L. ed. 1161, 1162, 25 Sup. Ct. Rep. 775, 3 Ann. Cas. 1154; State ex rel. Wilcox v. Curtis, 35 Conn. 374, 95 Am. Dec. 263. But, without inquiring into the merits of the doctrine upon which the proposition rests, we think when the contention is tested by a consideration of the subject-matter of this particular controversy it cannot be sustained. In other words, we are of opinion that, as the particular functions in question, by the express terms of the act of Congress, were given only 'when not in contravention of state or local law,' the state court was, if not expressly, at least impliedly, authorized by Congress to consider and pass upon the question whether the particular power was or was not in contravention of the state law, and we place our conclusion on that ground. We find no ambiguity in the text, but if it be that ambiguity is latent in the provision, a consideration of its purpose would dispel doubt; especially in view of the interpretation which we have given the statute, and the contrast between the clause governing the subject by the state law and the provision conferring administrative power on the Reserve Board. The nature of the subject dealt with adds cogency to this view, since that subject involves the action of state courts of probate in a universal sense, implying from its very nature the duty of such courts to pass upon the question, and the power of the court below, within the limits of state jurisdiction, to settle, so far as the state was concerned, the question for all such courts by one suit, thus avoiding the confusion which might arise in the entire system of state probate proceedings and the very serious injury to many classes of society which also might be occasioned. And our conclusion on this subject is fortified by the terms of § 57, chap. 106, 13 Stat. at L. 116, making controversies concerning national banks cognizable in state courts because of their intimate relation to many state laws and regulations, although, without the grant of the act of Congress, such controversies would have been Federal in character. As it follows from what we have said that the court below erred in declaring the section of the act of Congress to be unconstitutional, the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion. And it is so ordered. I dissent from the conclusion that this proceeding could be brought and maintained in the state court. It is an information in the nature of a quo warranto against a Federal corporation,—a national bank. It calls in question the bank's right to exercise a privilege claimed under an act of Congress, the privilege, under the terms of the act, being conferred only when 'not in contravention of the state or local law.' The information was brought by the attorney general of the state in his own name, and charges that the bank's exercise of the privilege is 'in contempt of the people of the state,' by which it is meant, as the record discloses, first, that the exercise of the privilege by the bank is in contravention of the law of the state, and, second, that the act of Congress under which the privilege is claimed transcends the power of Congress and is void. The state court dealt with both grounds. The first was overruled and the second sustained. The judgment rendered enjoins and excludes the bank from exercising the privilege. The writ of quo warranto was a prerogative writ, and the modern proceeding by information is not different in that respect. When it is brought to exclude the exercise of a franchise, privilege, or power claimed under the United States, it can only be brought in the name of the United States and by its representative, or in such other mode as it may have sanctioned. Wallace v. Anderson, 5 Wheat. 291, 5 L. ed. 91; Nebraska v. Lockwood, 3 Wall. 236, 18 L. ed. 47; Newman v. United States, 238 U. S. 537, 59 L. ed. 1446, 35 Sup. Ct. Rep. 881. As is said in the Lockwood case: 'The right to institute such proceedings is inherently in the government of the nation.' This is particularly true of national banks, for they not only derive all their powers from the United States, but are instrumentalities created by it for a public purpose, and 'are not to be interfered with by state legislative or judicial action, except so far as the lawmaking power of the government may permit.' Davis v. Elmira Sav. Bank, 161 U. S. 275, 283, 40 L. ed. 700, 701, 16 Sup. Ct. Rep. 502; Van Reed v. People's Nat. Bank, 198 U. S. 554, 557, 49 L. ed. 1161, 1162, 25 Sup. Ct. Rep. 775, 3 Ann. Cas. 1154. Indeed, they are upon much the same plane as are officers of the United States, because their conduct can only be controlled by the power that created them. M'Clung v. Silliman, 6 Wheat. 598, 605, 5 L. ed. 340, 342. If it were otherwise, the supremacy of the United States and of its Constitution and laws would be seriously imperiled. Ableman v. Booth, 21 How. 506, 16 L. ed. 169; Tarble's Case, 13 Wall. 398, 20 L. ed. 597; Tennessee v. Davis, 100 U. S. 257, 25 L. ed. 648; State ex rel. Wilcox v. Curtis, 35 Conn. 374, 95 Am. Dec. 263. Thus much, as I understand it, is conceded in this court's opinion, the conclusion that the state court could entertain the information and proceed to judgment thereon, as was done, being rested upon an implied authorization by Congress. This authorization is thought to be found in the provision stating that the privilege claimed is given only 'when not in contravention of state or local law,' and in the provision in the Act of June 3, 1864, chap. 106, § 57, 13 Stat. at L. 116, now in Rev. Stat. § 5198, Comp. Stat. 1916, § 9759, which makes suits against national banks cognizable in certain state courts. I do not find any such authorization in either provision. The first does no more than to withhold the privilege in question from national banks located in states whose laws are opposed to or not in harmony with the possession and exercise of such a privilege on the part of the banks. It says nothing about judicial proceedings,—nothing about who shall bring them or where they shall be brought. There is in it no suggestion that quo warranto proceedings were in the mind of Congress. Had there been a purpose to do anything so unusual as to authorize a state officer to institute and conduct such a proceeding in a state court against a Federal corporation, is it not reasonable to believe that Congress would have given expression to that purpose? As before indicated, it said nothing upon the point,—just as it would have done had no such purpose been in mind. But if the words 'when not in contravention of state or local law' could be regarded as giving any warrant for a quo warranto proceeding by a state officer in a state court, I should say they would do no more than to permit such a proceeding to determine whether the privilege was in contravention of the state law. There is nothing in them which points even remotely to a purpose to sanction a proceeding to determine the power of Congress under the Constitution to clothe a national bank with the privilege indicated. That would be without any precedent in the legislation relating to Federal corporations, and I submit that it is most improbable that Congress either did or would entertain such a purpose. The provision cited from the Act of 1864 has been in the statutes for fifty-three years, and no one seems ever to have thought until now that it was intended to authorize a proceeding such as this against a national bank. I think its words do not fairly lend themselves to that purpose. They have hitherto been regarded, and in practice treated, as referring to ordinary suits such as may be conveniently prosecuted against a bank in its home town and county. Besides, the terms of the provision show that it can have no application here. After providing for suing a national bank in the Federal or territorial court of the district in which it is established, the provision adds, 'or in any state, county or municipal court in the county or city in which said association is located.' This bank, as the record discloses, is located in Bay City, Bay county. The proceeding was begun and had in the supreme court of the state at the capital, which is Lansing, Ingham county. Therefore the provision can give no support to the proceeding. For these reasons I think the judgment should be reversed, with a direction to dismiss the information for want of jurisdiction. Mr. Justice Day authorizes me to say that he concurs in this dissent.

245.US.18

The remedy by certiorari which, in certain classes of cases, is substituted by the Act of September 6, 1916, c. 448, 39 Stat. 726, for the remedy by writ of error previously allowed by Rev. Stats., § 709, Jud. Code, § 237, is confined to final judgments, and finality, in the one case as in the other, is determined by the face of the record and the formal character of the judgment rendered by the state court. In an action by a father to recover a share of a fund collected by his deceased son's administrator as damages under the Employers' Liability Act, the state trial court rejected the father's claim entirely. The state supreme court, upholding his right but not specifically fixing the amount to which he was entitled, directed a new trial to accomplish that result. Assuming the judgment final in the sense that it determined the ultimate right and the general principles by which it was to be measured, Held, nevertheless, that it was not final in the sense of the Act of September 6, 1916, supra, and that an application for certiorari under that statute was premature. Petition for a writ of certiorari to review 39 S. Dak. 64, denied.

A railroad in whose service Tobin lost his life while actually engaged in carrying on interstate commerce, admitting liability under the act of Congress, paid the conceded loss to his administrator. A father and mother, but no widow or children, survived. The father, the respondent, sued in a state court to recover half the amount as his share of the loss. Setting aside the action of the trial court rejecting the claim, but not specifically fixing the amount of the father's recovery, the Supreme Court of South Dakota directed a new trial to accomplish that result. Application for certiorari was then made by the petitioner on the ground that such decision involved questions under the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]) reviewable by certiorari under the Act of Congress of September 6, 1916, c. 448, 39 Stat. 726. The act in question, although it deprived of the right of review by writ of error which had hitherto obtained in certain cases and substituted as to such cases the right of petitioning for review by certiorari subjected this last right to the same limitation as to the finality of the judgment of the state court sought to be reviewed which had prevailed from the beginning under section 709, Rev. Stat. (section 237, Judicial Code [Comp. St. 1916, § 1214]). Finality, therefore, continues to be an essential for the purposes of the remedy by certiorari conferred by the act of 1916. It may be indeed said that although the case was remanded by the court below for a new trial, the action of the court was in a sense final because it determined the ultimate right of the father to recover and the general principles by which that right was to be measured. But that contention is not open as it was settled under section 709, Rev. Stat. (section 237, Judicial Code), that the finality contemplated was to be determined by the face of the record and the formal character of the judgment rendered—a principle which excluded all conception of finality for the purpose of review in a judgment like that below rendered. Haseltine v. Bank, 183 U. S. 130, 22 Sup. Ct. 49, 46 L. Ed. 117; Schlosser v. Hemphill, 198 U. S. 173, 25 Sup. Ct. 654, 49 L. Ed. 1000; Louisiana Navigation Co. v. Oyster Commission of Louisiana, 226 U. S. 99, 33 Sup. Ct. 78, 57 L. Ed. 138; Coe v. Armour Fertilizer Works, 237 U. S. 413, 418, 419, 35 Sup. Ct. 625, 59 L. Ed. 1027. The reenactment of the requirement of finality in the act of 1916 was in the nature of things an adoption of the construction on the subject which had prevailed for so long a time. There being then no final judgment within the contemplation of the act of 1916, the petition for a writ of certiorari is denied.

243.US.316

The servitude to the interests of navigation of privately owned lands forming the banks and bed of a stream is a natural servitude, confined to such streams as in their ordinary and natural condition are susceptible of valuable public use in navigation, and confined to the natural condition of such streams. When navigable streams affording ways of commerce between States are improved by the federal government by means of locks and dams which raise the water above its natural level, the streams as thus improved remain navigable waters of the United States for all purposes of federal jurisdiction ana regulation. The power of the federal government to improve navigable streams in the interest of interstate and foreign commerce must be exercised, when private property is taken, in subordination to the Fifth Amendment. In improving the navigation of the Cumberland River, in Kentucky, under the commerce power, the federal government by means of a lock and dam raised the water above the natural level so that lands on a non-navigable tributary, not normally invaded thereby, were subjected permanently to periodical overflows substantially injuring, though not destroying, their value. Held, in an action for damages under § 24 of the Judicial Code (derived from the Tucker Act): (1) That this amounted to a partial taking of the property. (2) That the United States was liable ex contractu to compensate the owner to the extent of the injury. (3) That, upon payment, the Utkited States would acquire an easement to overflow the land as often as would necessarily result from the use of the lock and dam for navigation, the fee, however, remaining in the private owner. (4) That the riparian owner also Was entitled to compensation for.impairment of the value of his land caused by the destruction of a ford over the tributary used in connection with a private way appurtenant to the land. A like improvement of the Kentucky River, in Kentucky, by raising its water above natural level raised in like manner the water in a non-navigable tributary on which were a privately owned mill and mill-site, thus ending the usefulness of the~mill by doing away with the head of water necessary to run it. Held, that the mill-owner, to whom also, under the law of Kentucky, belonged the bed of the tributary with the right to have the water flow there free from artificial obstruction, was entitled ex contractu to recover from the United States an amount equal to the depreciation of the mill property resulting from the loss of water-power. The right to have the water of a non-navigable stream flow away from riparian land without artificial obstruction is not a mere easement or appurtenance, but exists by the law of nature as an inseparable part of the land itself. Section 152 of the Judicial Code, permitting costs against the United States in claims cases, although appearing in the chapter entitled "The Court of Claims," is not confined to cases in that court but applies also when the District Court is exercising concurrent jurisdiction under § 24. This conclusion results from a consideration of the Tucker Act, of March 3, 1887, c. 359, 24 Stat. 505, and §§ 294 and 295 of the Code, read in connection with the repealing section, 297.

These cases were argued together, involved similar questions, and may be disposed of in a single opinion. They were actions brought in the district court by the respective defendants in error against the United States under the 20th paragraph of § 24, Judicial Code (Act of March 3, 1911, chap. 231, 36 Stat. at L. 1087, 1093, Comp. Stat. 1913, §§ 968, 991(20)), to recover compensation for the taking of lands and water rights by means of backwater resulting from the construction and maintenance by the government of certain locks and dams upon the Cumberland and Kentucky rivers, respectively, in the state of Kentucky, in aid of the navigation upon those rivers. In No. 84 the findings of the district court are, in substance, that at the time of the erection of lock and dam No. 21 in the Cumberland river, the plaintiff was the owner of 189 acres of land on Whiteoak creek, a tributary of the Cumberland, not far distant from the river; that by reason of the erection of the lock and dam 6 6/10 acres of this land are subject to frequent overflows of water from the river, so as to depreciate it one half of its value, and a ford across Whiteoak creek and a part of a pass way are destroyed; that the 6 6/10 acres were worth $990, and the damage thereto was $495; that the damage to the land by the destruction of the ford was $500; and that plaintiff was entitled to recover the sum of $995. It may be supposed that Whiteoak creek was not a navigable stream, but there is no finding on the subject. In No. 718 the findings are to the effect that at the time of the erection by the government of lock and dam No. 12 in the Kentucky river the plaintiffs, together with another person who was joined as a defendant, were the owners and in possession of a tract of land situate on Miller's creek, a branch of the Kentucky, containing 5 1/2 acres, upon which there were a mill and a mill seat; that by reason of the erection of the lock and dam the mill no longer can be driven by water power; that the water above the lock and dam, when it is at pool stage, is about 1 foot below the crest of the milldam, and this prevents the drop in the current that is necessary to run the mill; that no part of the land or mill is overflowed or covered by pool stage of water, nor is the mill physically damaged thereby; that Miller's creek is not a navigable stream; that the damages sustained by the owners of the mill, representing depreciation of the value of the mill property by cutting off the water power, amount to $1,500. Judgments were entered in favor of the respective landowners for the sums mentioned in the findings, together with interest and the costs of the suits, and the United States appealed to this court. (1) A fundamental contention made in behalf of the government, and one that applies to both cases, is that the control by Congress, and the Secretary of War acting for it, over the navigation of the Cumberland and Kentucky rivers, must also include control of their tributaries, and that, in order to improve navigation at the places mentioned in the findings, it was necessary to erect dams and back up the water, and the right to do this must include also the right to raise the water in the tributary streams. In passing upon this contention we may assume, without, however, deciding, that the rights of defendants in error are no greater than if they had been riparian owners upon the rivers, instead of upon the tributary creeks. The states have authority to establish for themselves such rules of property as they may deem expedient with respect to the streams of water within their borders, both navigable and non-navigable, and the ownership of the lands forming their beds and banks (Barney v. Keokuk, 94 U. S. 324, 338, 24 L. ed. 224, 228; Packer v. Bird, 137 U. S. 661, 671, 34 L. ed. 819, 821, 11 Sup. Ct. Rep. 210; Hardin v. Jordan, 140 U. S. 371, 382, 35 L. ed. 428, 433, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U. S. 1, 40, 58, 38 L. ed. 331, 346, 352, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. Water Comrs. 168 U. S. 349, 358, 42 L. ed. 497, 501, 18 Sup. Ct. Rep. 157), subject however, in the case of navigable streams, to the paramount authority of Congress to control the navigation so far as may be necessary for the regulation of commerce among the states and with foreign nations (Shively v. Bowlby, 152 U. S. 1, 40, 38 L. ed. 331, 346, 14 Sup. Ct. Rep. 548; Gibson v. United States, 166 U. S. 269, 272, 41 L. ed. 996, 1000, 17 Sup. Ct. Rep. 578; Scott v. Lattig, 227 U. S. 229, 243, 57 L. ed. 490, 496, 44 L.R.A.(N.S.) 107, 33 Sup. Ct. Rep. 242); the exercise of this authority being subject, in its turn, to the inhibition of the 5th Amendment against the taking of private property for public use without just compensation (Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Lynah, 188 U. S. 445, 465, 471, 47 L. ed. 539, 546, 549, 23 Sup. Ct. Rep. 349. The state of Kentucky, like most of the states of the Union, determines the navigability of her streams, so far as the public right is concerned, not by the common-law test of the ebb and flow of the tide,—manifestly inapplicable in a state so wholly remote from the sea,—but by the test of navigability in fact (Thurman v. Morrison, 14 B. Mon. 367; Morrison v. Thurman, 17 B. Mon. 249, 66 Am. Dec. 153; Goodin v. Kentucky Lumber Co. 90 Ky. 625, 14 S. W. 775; Murray v. Preston, 106 Ky. 561, 564, 90 Am. St. Rep. 232, 50 S. W. 1095; Banks v. Frazier, 111 Ky. 909, 912, 64 S. W. 983; Ireland v. Bowman, 130 Ky. 153, 161, 113 S. W. 56, 17 Ann. Cas. 786), while sustaining private ownership of the beds of her streams, both navigable and non-navigable, according to the common-law rule (Berry v. Snyder, 3 Bush, 266, 273, 277, 96 Am. Dec. 219; Miller v. Hepburn, 8 Bush, 326, 331; Williamsburg Boom Co. v. Smith, 84 Ky. 372, 374, 1 S. W. 765; Wilson v. Watson, 141 Ky. 324, 327, 35 L.R.A.(N.S.) 227, 132 S. W. 563; Robinson v. Wells, 142 Ky. 800, 804, 135 S. W. 317), with incidental rights to flow of the stream in its natural state (Anderson v. Cincinnati Southern R. Co. 86 Ky. 44, 48, 9 Am. St. Rep. 263, 5 S. W. 49). The general rule that private ownership of property in the beds and waters of navigable streams is subject to the exercise of the public right of navigation, and the governmental control and regulation necessary to give effect to that right, is so fully established, and is so amply illustrated by recent decisions of this court, that a mere reference to the cases will suffice. Scranton v. Wheeler, 179 U. S. 141, 163, 45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48; Philadelphia Co. v. Stimson, 223 U. S. 605, 634, 56 L. ed. 570, 582, 32 Sup. Ct. Rep. 340; United States v. Chandler-Dunbar Water Power Co. 229 U. S. 53, 62, 57 L. ed. 1063, 1075, 33 Sup. Ct. Rep. 667; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S. 82, 85, 88, 57 L. ed. 1083-1085, 33 Sup. Ct. Rep. 679, Ann. Cas. 1915A, 232; Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251, 268, 59 L. ed. 939, 947, 35 Sup. Ct. Rep. 551; Willink v. United States, 240 U. S. 572, 580, 60 L. ed. 808, 810, 36 Sup. Ct. Rep. 422. But this rule, like every other, has its limits, and in the present cases, which require us to ascertain the dividing line between public and private right, it is important to inquire what are 'navigable streams' within the meaning of the rule. In Kentucky, and in other states that have rejected the common-law test of tidal flow and adopted the test of navigability in fact, while recognizing private ownership of the beds of navigable streams, numerous cases have arisen where it has been necessary to draw the line between public and private right in waters alleged to be navigable; and by an unbroken current of authorities it has become well established that the test of navigability in fact is to be applied to the stream in its natural condition, not as artificially raised by dams or similar structures; that the public right is to be measured by the capacity of the stream for valuable public use in its natural condition; that riparian owners have a right to the enjoyment of the natural flow without burden or hindrance imposed by artificial means, and no public easement beyond the natural one can arise without grant or dedication save by condemnation, with appropriate compensation for the private right. Cases exemplifying these propositions are cited in a marginal note.1 We have found no case to the contrary. An apparent but not a real exception is the New York case of Canal Appraisers v. People (1836) 17 Wend. 571, where the decision was rested (pp. 609, 612, 624) upon the ground that the bed of the Mohawk river was the property of the state; the authority of the case having been limited accordingly by later decisions of the court of last resort of that state. Canal Fund Comrs. v. Kempshall, 26 Wend. 404, 416; Child v. Starr, 4 Hill, 369, 372; Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44, 63; Smith v. Rochester, 92 N. Y. 463, 482, 44 Am. Dec. 393; Fulton Light, Heat, & P. Co. v. State, 200 N. Y. 400, 413, 37 L.R.A.(N.S.) 307, 94 N. E. 199. Many state courts, including the court of appeals of Kentucky, have held, also, that the legislature cannot, by simple declaration that a stream shall be a public highway, if in fact it be not navigable in its natural state, appropriate to public use the private rights therein without compensation. Morgan v. King, 18 Barb. 277, 284, 35 N. Y. 454, 459, 461, 91 Am. Dec. 58; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 185, 38 Am. Rep. 407; Murray v. Preston, 106 Ky. 561, 563, 90 Am. St. Rep. 232, 50 S. W. 1095; Stuart v. Clark, 2 Swan, 9, 17, 58 Am. Dec. 49; Walker v. Board of Public Works, 16 Ohio, 540, 544; Olive v. State, 86 Ala. 88, 92, 4 L.R.A. 33, 5 So. 653; People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co. 107 Cal. 221, 224, 48 Am. St. Rep. 125, 40 Pac. 531. And see Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 345, 18 Am. Rep. 184; Koopman v. Blodgett, 70 Mich. 610, 616, 14 Am. St. Rep. 527, 38 N. W. 649. This court has followed the same line of distinction. That the test of navigability in fact should be applied to streams in their natural condition was in effect held in The Daniel Ball, 10 Wall. 557, 19 L. ed. 999,—a case which turned upon the question whether Grand river, in the state of Michigan, was one of the 'navigable waters of the United States' within the meaning of acts of Congress that regulated vessels carrying merchandise and passengers upon such waters. Mr. Justice Field, speaking for the court, after showing that the tidal test was not applicable in this country, said (p. 563): 'A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' The point was set forth more clearly in The Montello, 20 Wall. 430, 22 L. ed. 391, where the question was whether Fox river, in the state of Wisconsin, was a navigable water of the United States within the meaning of the acts of Congress. There were rapids and falls in the river, but the obstructions caused by them had been removed by artificial means so as to furnish uninterrupted water communication for steam vessels of considerable capacity. It was argued (p. 440) that although the river might now be considered a highway for commerce conducted in the ordinary modes, it was not so in its natural state, and therefore was not a navigable water of the United States within the purview of The Daniel Ball decision. The court, accepting navigability in the natural state of the river as the proper test, proceeded to show that, even before the improvements resulting in an unbroken navigation were undertaken, a large and successful interstate commerce had been carried on through this river by means of Durham boats, which were vessels from 70 to 100 feet in length, with 12 feet beam, and drawing, when loaded, from 2 to 2 1/2 feet of water. The court, by Mr. Justice Davis, declared (p. 441) that it would be a narrow rule to hold that, in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. 'The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.' And again (p. 443): 'There are but few of our freshwater rivers which did not originally present serious obstructions to an uninterrupted navigation. In some cases, like the Fox river, they may be so great while they last as to prevent the use of the best instrumentalities for carrying on commerce, but the vital and essential point is whether the natural navigation of the river is such that it affords a channel for useful commerce. If this be so the river is navigable in fact, although its navigation may be encompassed with difficulties by reason of natural barriers, such as rapids and sand bars.' Numerous decisions of state courts were cited as supporting this view, including some of those to which we have referred. Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557, involved the right to compensation for land overflowed with backwater from a dam erected and maintained in the Fox river, under authority of the state of Wisconsin, for the improvement of navigation. (A permissible exercise of state power, in the absence of action by Congress, although it was an interstate navigable water. Willson v. Black Bird Creek Marsh Co. 2 Pet. 245, 251, 7 L. ed. 412, 414; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96.) The raising of the river above its natural stage, by means of an artificial structure, was the gravamen of the complaint. It was argued (p. 174) that the state might, in the interest of the public, 'erect such works as may be deemed expedient for the purpose of improving the navigation and increasing usefulness of a navigable river, without rendering itself liable to individuals owning land bordering on such river, for injuries to their lands resulting from their overflow by reason of such improvements.' This court overruled the contention, and held there was a taking without compensation, contrary to the applicable provision of the Constitution of Wisconsin. In United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349, the same principle was applied in the case of an operation by the government of the United States. For the improvement of the navigation of the Savannah river certain dams and other obstructions were placed and maintained in its bed, with the result of faising the water above its natural height and backing it up against plaintiff's embankment upon the river and interfering with the drainage of their plantation. This was held (pp. 465, 471) to be a taking of private property, requiring compensation under the 5th Amendment, notwithstanding the work was done by the government in improving the navigation of a navigable river. The raising of the water above its natural level was held to be an invasion of the private property thereby flowed. In several other cases the limitation of the public right to the natural state of the stream has been recognized. Packer v. Bird, 137 U. S. 661, 667, 34 L. ed. 819, 820, 11 Sup. Ct. Rep. 210; United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 698, 43 L. ed. 1136, 1139, 19 Sup. Ct. Rep. 770; Leovy v. United States, 177 U. S. 621, 631, 44 L. ed. 914, 918, 20 Sup. Ct. Rep. 797. It follows from what we have said that the servitude of privately-owned lands forming the banks and bed of a stream to the interests of navigation is a natural servitude, confined to such streams as, in their ordinary and natural condition, are navigable in fact, and confined to the natural condition of the stream. And, assuming that riparian owners upon non-navigable tributaries of navigable streams are subject to such inconveniences as may arise from the exercise of the common right of navigation, this in like manner must be limited to the natural right. The findings make it clear that the dams in question, constructed by the government in the Cumberland and Kentucky rivers, respectively, are for raising the level of those streams along certain stretches by means of backwater, so as to render them, to the extent of the raising, artificial canals instead of natural waterways. In the language of engineering, the government has 'canalized' the rivers. We intimate no doubt of the power of the United States to carry out this kind of improvement. Nor do we doubt that, upon the completion of the improvements, these rivers: the Cumberland, because it is an avenue of communication between two states; the Kentucky and also the Cumberland, because, in connection with the Ohio and Mississippi rivers, they furnish highways of commerce among many states (Gilman v. Philadelphia, 3 Wall. 713, 725, 18 L. ed. 96, 99; The Daniel Ball, 10 Wall. 557, 563, 19 L. ed. 999, 1001; South Carolina v. Georgia, 93 U. S. 4, 10, 23 L. ed. 782, 783),—remained navigable waters of the United States for all purposes of Federal jurisdiction and regulation, notwithstanding the artificial character of the improvements (Ex parte Boyer, 109 U. S. 629, 632, 27 L. ed. 1056, 1057, 3 Sup. Ct. Rep. 434; The Robert W. Parsons (Perry v. Haines) 191 U. S. 17, 28, 48 L. ed. 73, 78, 24 Sup. Ct. Rep. 8). But the authority to make such improvements is only a branch of the power to regulate interstate and foreign commerce, and, as already stated, this power, like others, must be exercised, when private property is taken, in subordination to the 5th Amendment. Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Lynah, 188 U. S. 445, 465, 471, 47 L. ed. 539, 546, 549, 23 Sup. Ct. Rep. 349. And we deem it clear that so much of the properties of the respective defendants in error as was unaffected by the flow of the rivers or their tributaries prior to the construction of the locks and dams in question was private property, and not subject to be overflowed, without compensation, in the raising of the level of the rivers by means of artificial dams. These cases have no proper relation to cases such as Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578, where no water was thrown back on claimant's land, and the damage was confined to an interference with the access thence to the navigable portion of the river; Scranton v. Wheeler, 179 U. S. 141, 153, 45 L. ed. 126, 133, 21 Sup. Ct. Rep. 48, which likewise had to do with the interruption of access from riparian land to a navigable channel; Bedford v. United States, 192 U. S. 127, 225, 48 L. ed. 414, 417, 24 Sup. Ct. Rep. 238, where the damage to claimant's land resulted from operation conducted by the government 6 miles farther up the river; Jackson v. United States, 230 U. S. 1, 23, 57 L. ed. 1363, 1374, 33 Sup. Ct. Rep. 1011, where owners of lands on the east bank of the Mississippi claimed compensation as for a taking of their property by reason of the effect of levees built on the west bank opposite their lands as a part of a system of levees designed to prevent crevasses, retain the water in the river, and thus improve the navigation. In each of these, there was no direct invasion of the lands of the claimants, the damages were altogether consequential, and the right to compensation was denied on that ground. (2) It is contended, in No. 84, that the damage to Cress's land by the overflow of 6 6/10 acres, because it depreciated its value only to the extent of one half, does not measure up to a taking, but is only a 'partial injury,' for which the government is not liable. The findings, however, render it plain that this is not a case of temporary flooding or of consequential injury, but a permanent condition, resulting from the erection of the lock and dam, by which the land is 'subject to frequent overflows of water from the river.' That overflowing lands by permanent backwater is a direct invasion, amounting to a taking, is settled by Pumpelly v. Green Bay & M. Canal Co. 13 Wall 166, 177, 20 L. ed. 557, 560; United States v. Lynah, 188 U. S. 445, 468-470, 47 L. ed. 539, 547-549, 23 Sup. Ct. Rep. 349. It is true that in the Pumpelly Case there was an almost complete destruction, and in the Lynah Case a complete destruction, of the value of the lands, while in the present case the value is impaired to the extent of only one half. But it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking. As the court said, speaking by Mr. Justice Brewer, in United States v. Lynah, 188 U. S. 445, 470, 47 L. ed. 539, 548, 23 Sup. Ct. Rep. 349: 'Where the government by the construction of a dam or other public works so floods lands belonging to an individual as to substantially destroy their value, there is a taking within the scope of the 5th Amendment. While the government does not directly proceed to appropriate the title, yet it takes away the use and value; when that is done it is of little consequence in whom the fee may be vested. Of course, it results from this that the proceeding must be regarded as an actual appropriation of the land, including the possession, the right of possession, and the fee; and when the amount awarded as compensation is paid, the title, the fee, with whatever rights may attach thereto,—in this case those at least which belong to a riparian proprietor,—pass to the government and it becomes henceforth the full owner.' There is no difference of kind, but only of degree, between a permanent condition of continual overflow by backwater and a permanent liability to intermittent but inevitably recurring overflows; and, on principle, the right to compensation must arise in the one case as in the other. If any substantial enjoyment of the land still remains to the owner, it may be treated as a partial instead of a total devesting of his property in the land. The taking by condemnation of an interest less than the fee is familiar in the law of eminent domain. Where formal proceedings are initiated by the party condemning, it is usual and proper to specify the precise interest taken, where less than the fee. But where, as in this case, the property owner resorts to the courts, as he may, to recover compensation for what actually has been taken, upon the principle that the government, by the very act of taking, impliedly has promised to make compensation because the dictates of justice and the terms of the 5th Amendment so require (United States v. Great Falls Mfg. Co. 112 U. S. 645, 656, 28 L. ed. 846, 850, 5 Sup. Ct. Rep. 306; United States v. Lynah, 188 U. S. 445, 465, 47 L. ed. 539, 546, 23 Sup. Ct. Rep. 349), and it appears that less than the whole has been taken and is to be paid for, such a right or interest will be deemed to pass as is necessary fairly to effectuate the purpose of the taking; and where, as in this case, with respect to the 6 6/10 acres, land is not constantly but only at intervals overflowed, the fee may be permitted to remain in the owner, subject to an easement in the United States to overflow it with water as often as necesarily may result from the operation of the lock and dam for purposes of navigation. (3) In No. 84 some question is made about the allowance for the damage to the land by the destruction of the ford across Whiteoak creek and the pass way, but we deem the objection unsubstantial. It is said there is nothing to show how Cress acquired ownership of the ford, and that it does not appear that he had a right to pass over the adjoining land of one Brown. It seems to us, however, that the findings, while meager, sufficiently import that Cress had a right to a private way and ford as appurtenant to his land, and that the damage to the land by the destruction of the ford was $500. This brings the case squarely within United States v. Welch, 217 U. S. 333, 339, 54 L. ed. 787, 789, 28 L.R.A. (N.S.) 385, 30 Sup. Ct. Rep. 527, 19 Ann. Cas. 680, and United States v. Grizzard, 219 U. S. 180, 184, 185, 55 L. ed. 165-167, 31 L.R.A.(N.S.) 1135, 31 Sup. Ct. Rep. 162. (4) In No. 718 there is a contention that, because the backwater is confined to Miller's creek, it does not amount to a taking of land. But the findings render it plain that it had the necessary effect of raising the creek below the dam to such an extent as to destroy the power of the milldam that was essential to the value of the mill; or, as the findings put it: 'The water above the lock and dam, when it is at pool stage, is about 1 foot below the crest of the milldam, which prevents the drop in the current which in necessary to run the mill.' Under the law of Kentucky, ownership of the bed of the creek, subject only to the natural flow of the water, is recognized as fully as ownership of the mill itself. The right to have the water flow away from the milldam unobstructed, except as in the course of nature, is not a mere easement or appurtenance, but exists by the law of nature as an inseparable part of the land. A destruction of this right is a taking of a part of the land. Gardner v. Newburgh, 2 Johns. Ch. 162, 166, 7 Am. Dec. 526; Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312; Johnson v. Jordan, 2 Met. 234, 239, 37 Am. Dec. 85; Wadsworth v. Tillotson, 15 Conn. 366, 373, 39 Am. Dec. 391; Parker v. Griswold, 17 Conn. 288, 299, 42 Am. Dec. 739; Harding v. Stamford Water Co. 41 Conn. 87, 92; Holsman v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335, 343; Beach v. Sterling Iron & Zinc Co. 54 N. J. Eq. 65, 73, 33 Atl. 286; Scriver v. Smith, 100 N. Y. 471, 480, 53 Am. Rep. 224, 3 N. E. 675; Crook v. Hewitt, 4 Wash. 749, 754, 31 Pac. 28; Rigney v. Tacoma Light & Water Co. 9 Wash. 576, 583, 26 L. R. A. 425, 38 Pac. 147; Benton v. Johncox, 17 Wash. 277, 281, 39 L.R.A. 107, 61 Am. St. Rep. 912, 49 Pac. 495; Lux v. Haggin, 69 Cal. 255, 390, 10 Pac. 674; Hargrave v. Cook, 108 Cal. 72, 77, 30 L.R.A. 390, 41 Pac. 18; Pine v. New York, 103 Fed. 337, 339, 50 C. C. A. 145, 112 Fed. 98, 103; Wood v. Waud, 3 Exch. 748, 775, 154 Eng. Reprint, 1047, 18 L. J. Exch. N. S. 305, 13 Jur. 472, 10 Eng. Rul. Cas. 226; Dickinson v. Grand Junction Canal Co. 7 Exch. 282, 299, 155 Eng. Reprint, 953, 21 L. J. Exch. N. S. 241, 16 Jur. 200; Stokoe v. Singers, 8 El. & Bl. 31, 36, 120 Eng. Reprint, 12, 26 L. J. Q. B. N. S. 257, 3 Jur. N. S. 1256, 5 Week. Rep. 756 (Erle, J.). (5) In both cases it is urged that there was error in allowing costs against the government. Section 24(20) of the Judicial Code, 36 Stat. at L. 1093, chap. 231, Comp. Stat. 1913, § 991(20), under which the suits were brought, originated in the provisions of the so-called Tucker Act of March 3, 1887, chap. 359, 24 Stat. at L. 505, Comp. Stat. 1913, § 991(20), and the argument of the government is that while, under § 15 of that act, costs were recoverable against the United States, in the district court as in the court of claims, yet that § 297, Judicial Code, repealed all of the Tucker Act with the exception of §§ 4, 5, 6, 7, and 10, which relate to matters of procedure, and that there is no longer any authority of law for allowing costs against the United States in suits brought in the district court. The fact is that § 297, Judicial Code, besides the clause repealing the Tucker Act, with the exceptions mentioned, contains in its final paragraph a repeal of 'all other acts and parts of acts, in so far as they are embraced within and superseded by this act.' Now, not only is the provision of § 2 of the Tucker Act, conferring upon the district courts concurrent jurisdiction with the court of claims over certain claims against the United States, carried into § 24(20) of the Code, but the provision of § 15 of the Tucker Act for the allowance of costs against the government is carried in as § 152. It is true that § 24 (20) is a part of chapter 2 of the Code, entitled 'District Courts—Jurisdiction,' while § 152 is a part of chapter 7, entitled, 'The Court of Claims.' But by §§ 294 and 295 it is declared and enacted as follows: 'Sec. 294. The provisions of this act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no implication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest. Sec. 295. The arrangement and classification of the several sections of this act have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legislative construction is to be drawn by reason of the chapter under which any particular section is placed.' From this it is plain that § 152 of the Code applies to suits in the District Courts, as well as to those in the Court of Claims. Judgment affirmed. Mr. Justice McReynolds took no part in the consideration or decision of these cases.

245.US.210

A party against whom a default judgment had been rendered in the District Court eighteen months previously, applied there to have it set aside for lack of personal jurisdiction, alleging that there was no service and that the return of service, upon which the default was based, was unauthorized and false. After hearing the application and affidavits, the court sustained its jurisdiction to enter the judgment and overruled the application. Held, that the proceeding to set aside the judgment amounted to an independent action, and that the question of jurisdiction, as it related only to the power of the court in the original action, could not be made the basis of a direct writ of error, under Judicial Code, § 238, to determine the correctness of the order overruling the application. Writ of error dismissed.

On October 4, 1913, the defendants in error brought suit in the United States District Court for the Eastern District of Oklahoma against the Stevirmac Oil & Gas Company and Virgil Hicks to recover a money judgment. Process was issued naming November 3, 1913, as answer date. On October 15, 1913, the marshal made return certifying that he had delivered a copy of the summons to Virgil Hicks, treasurer, in person, and that the other defendant named was not served. On November 25, 1913, the court ordered the marshal to amend the return to conform to the facts, and thereupon the marshal amended his return so as to certify that he had served the Stevirmac Oil & Gas Company by leaving a copy of the summons with Virgil Hicks personally and as treasurer of the company at Sapulpa, Oklahoma, in said district, on October 13, 1913, the president, chairman of the board of directors, or other chief officer not being found in the district, and Virgil Hicks being in charge of the place of business of the corporation. On December 1, 1913, the court rendered judgment by default against the Stevirmac Oil & Gas Company. Under the laws of Oklahoma service can be made upon a corporation's treasurer only when the president, chairman of the board of directors, or other chief officer cannot be found in the jurisdiction, and this fact must be stated in the return. Cunningham Commission Co. v. Rorer Mill & Elevator Co., 25 Okl. 133, 105 Pac. 676. About eighteen months after the default judgment the Stevirmac Oil & Gas Company filed an application to set aside the default judgment; it was averred that the Stevirmac Oil & Gas Company, a corporation, was named in the summons issued with Virgil Hicks; that on October 13, 1913, the United States Marshall delivered to said Virgil Hicks at Sapulpa, Oklahoma, a copy of the summons; that at that time H. H. McFann was the president of the corporation and was in the town of Sapulpa, was well known therein and had a regular place of business and residence in said town; that Virgil Hicks was not in charge of the place of business of the defendant corporation; that at the time of the delivery of the copy of the summons to him the marshal did not tell or inform him in any way that the copy was for the defendant, the Stevirmac Oil & Gas Company, or that said delivery was intended for service upon said defendant corporation, and that Virgil Hicks understood and believed that the service was upon him individually; that the United States Marshal inquired of Virgil Hicks for the name of the president of the defendant corporation and where he could be found, and was told that H. H. McFann was the president of the corporation, was then in Sapulpa, Oklahoma, wherein he could be found; that this constituted all the service of summons made in the case; that no service was ever made on McFann or upon the Stevirmac Oil & Gas Company; that on October 15, 1913, the marshal made return certifying that he had delivered a copy of the return to Virgil Hicks, treasurer, in person at Sapulpa, Oklahoma, the other defendant named 'not served'; that on November 25, 1913, without notice to the Stevirmac Oil & Gas Company the court made an order requiring or directing the marshal to amend the return to conform with the facts; that thereafter the return was amended so as to certify that the summons had been served upon the Stevirmac Oil & Gas Company by handing to and leaving a true and attested copy with Virgil Hicks personally, treasurer of said corporation, at Sapulpa, Oklahoma, on October 13, 1913, the president, chairman of the board of directors, or other chief officers not being found in the district; that the said Virgil Hicks was the person in charge of the place of business of the defendant corporation; that the said marshal had not at any time served the said summons on the Stevirmac Oil & Gas Company; that plaintiff in the original suit caused and procured said false amended return to be made by the said marshal; that the Stevirmac Oil & Gas Company had no notice nor knowledge of the said order of the court amending said return until long after the judgment was rendered; that the record does not show that the marshal asked leave of court, or that the court granted leave to make such amended return; that it is true that the court ordered the marshal to amend the original return; that said return was complete upon its face, and that the court had no power to order the marshal to make another or different return; that, therefore, said judgment was obtained without service of process upon the Stevirmac Oil & Gas Company as required by law, and is void. The Stevirmac Oil & Gas Company filed certain affidavits in support of this application. Upon hearing the application, with accompanying affidavits, the court refused to set aside the former judgment and overruled the application of the Stevirmac Oil & Gas Company. The court made a certificate setting forth that the order refusing to set aside and vacate the judgment rendered December 1, 1913, involved and determined the question whether the court had jurisdiction over the person of the Stevirmac Oil & Gas Company; it being contended that the court had no jurisdiction to render said judgment on account of lack of jurisdiction of the person of the defendant, and that the order entered was a denial of that contention. The case is brought here solely upon the question of the jurisdiction of the District Court. It was submitted upon briefs which argue the question of the authority of the court to order the amendment of the return and thereby acquire jurisdiction over the Stevirmac Oil & Gas Company. The plaintiff in error contends that the proceeding to vacate the judgment was in effect a separate proceeding, and as it resulted in a judgment refusing to vacate the former judgment, the latter is final and reviewable here. We agree that it is a final judgment, reviewable in the proper court. The question now presented is whether it can be reviewed by direct writ of error from this court to the District Court. This court looks after its own jurisdiction, whether the point is raised by counsel or not. Mansfield, Cold Water & Lake Michigan R. R. Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. ed. 462. Section 5 of the Court of Appeals Act of 1891, now Judicial Code, § 238, 36 Stats. 1157, provides for direct appeals to and writs of error from this court in cases in which the jurisdiction of the District Court is in issue, in which case the question of jurisdiction only must be certified here for decision. Such appeals or writs of error do not bring here the merits of the controversy, and impose upon this court the single duty of determining whether the District Court had jurisdiction of the case. In the present case while it is certified that the jurisdiction of the court rendering the original judgment was presented and decided against the contention of the plaintiff in error, it is apparent that no question is made concerning the jurisdiction of the court to entertain the proceeding to set aside the former judgment, and that the real controversy arises from the attack upon the authority of the court to order an amendment of the marshal's return, and to render the original judgment. In such cases we are of opinion that former decisions of this court have settled the construction of the statute to be against the right to entertain direct appeals or writs of error upon the question of jurisdiction. Carey v. Houston & Texas Central R. R. Co., 150 U. S. 170, 14 Sup. Ct. 63, 37 L. Ed. 1041, presents an action upon a bill in equity to impeach and set aside a decree of foreclosure in the Circuit Court on the ground of fraud. It was held that no question of jurisdiction over that suit could be availed of to sustain a direct appeal to this court under section 5 of the Court of Appeals Act. In that case Mr. Chief Justice Fuller, speaking for the court, expounding the fifth section of the act of March 3, 1891, said: 'But the fifth section of the act of March 3, 1891, does not authorize a direct appeal to this court in a suit upon a question involving the jurisdiction of the Circuit Court over another suit previously determined in the same court. It is the jurisdiction of the court below over the particular case in which the appeal from the decree therein is prosecuted, that, being in issue and decided against the party raising it and duly certified, justifies such appeal directly to this court. This suit to impeach the decree of May 4, 1888, and to prevent the consummation of the alleged plan of reorganization, was a separate and distinct case, so far as this inquiry is concerned, from the suit to foreclose the mortgages on the railroad property; and no question of jurisdiction over the foreclosure suit or the rendition of the decree passed therein can be availed of to sustain the present appeal from the decree in this proceeding. 'The collusion and fraud charged in the institution and conduct of the prior litigation, and in the procurement of the decree against the railroad company, and in the other transactions in respect of which relief was sought against the defendants, seem to form the gravamen of the case; but whether the bill be treated as a bill of review, an original bill of the same nature, or an original bill on the ground of fraud, it was a distinct proceeding in which the moving parties were shifted, and the fact that it put in issue the jurisdiction in the proceedings it assailed would not change the appeal from this, into an appeal from the prior decree.' That case was followed and approved in Re Lennon, 150 U. S. 393, 14 Sup. Ct. 123, 37 L. Ed. 1120, wherein Lennon filed a petition in habeas corpus in the Circuit Court of the United States for the Northern District of Ohio seeking to be relieved from punishment for contempt because of violation of an injunction issued in the same court, upon the ground that the court had no jurisdiction in the original case in which the order had been issued, and had no jurisdiction over the person of Lennon because he was not a party to the original suit, not having been served with process. This court held that while the proceeding in habeas corpus undertook to attack the jurisdiction of the court to make the order, the right to entertain the petition for habeas corpus was not in issue, but on the contrary, jurisdiction had been entertained, and conceding that the jurisdiction to discharge the prisoner would depend upon want of jurisdiction to commit in the original case, still that would not present a question reviewable by direct appeal in the habeas corpus suit. See, also, Empire State-Idaho Mining & Developing Co. v. Hanley, 205 U. S. 225, 232, 27 Sup. Ct. 476, 51 L. Ed. 779. The plaintiff in error correctly contends that the proceeding to set aside the original judgment is in effect an independent action, and the judgment therein final and reviewable. The proceeding to set aside the original judgment is based upon the theory that no jurisdiction was acquired over the Stevirmac Oil & Gas Company by the service of the process as amended by the court's order, and hence the company was never properly subject to the jurisdiction of the court in the original suit. No contention is made that the court could not entertain the proceeding to set aside that judgment, indeed it did entertain jurisdiction and decided against the contention of the plaintiff in error. In such case we have no doubt that in view of the nature of the attack made upon the original judgment, the judgment in the present proceeding was final, and reviewable in the Court of Appeals. Rust v. United Waterworks Co., 70 Fed. 129, 17 C. C. A. 16. But the attempt now made is to convert the writ of error into a means of reviewing the question of the jurisdiction of the court to render the original judgment. For the reasons stated, and following the construction of the statute already given, the writ of error must be dismissed, and it is so ordered. Dismissed.

242.US.448

Plaintiff consigned goods from Michigan to New York City over a "lake and rail" route constituted of defendant's steamship line as far as Buffalo and the line of a railway' company thence onward. Plaintiff paid the freight, obtaining a reduced rate allowed in the tariff for this route by agreeing in.the bill of lading to a maximum valuation and release of larger dayages. A separate tariff, filed by defendant pursuant to § 6 of the A6,t to Regulate Commerce, entitled plaintiff to have the goods stored for a time at Buffalo without extra charge before forwarding to New York and to divert them to some other destination upon readjustment of. rates. By direction of plaintiff, defendant was holding the goods stored under this arrangement when a part was stolen. Held (1) That defendant was liable as carrier and not as warehouseman. (2) That the damages could not exceed the maximum value agreed in the bill of lading and upon.which the freight rate was based. (3) That a letter written by defendant to plaintiff while the goods were so stored, acknowledging their custody, and 4tating that they would be held subject to a circular enclosed with the letter and which but described the terms of the storage as they were stated in the separate tariff, did not operate to create a contract of warehousing independent of the contract of carriage. Every shipper is charged with notice of terms of the interstate tariffs governing his shipments. A shipper by his bill of lading valued several tons of goods at not to exceed $100 per ton, and agreed that this as a maximum should govern the computation of any loss or damage for which the carrier might become liable. Held, that the maximum liability of the carrier for the loss of a part was not the total valuation so fixed, but the value, at the ratio of $100 per ton, of the part lost. 165 App. Div. 947, reversed.

The Western Transit Company, operating steamers between Buffalo and other points on the Great Lakes, formed, with the New York Central Railroad, a 'lake and rail' line between Michigan and New York city. Among the privileges and facilities offered by this line was the right 'in transit of free storage and diversion at Buffalo.' That is, the shipper, instead of sending his goods from Michigan through to New York city, was entitled, without the payment of any extra charge, to have them stored at Buffalo for a period, to await further orders, and be forwarded later to New York. The shipper was also given the privilege of 'diversion,' that is, of changing the ultimate destination of the stored goods upon proper adjustment of the rate. On September 23, 1908, A. C. Leslie & Company, Limited, the plaintiff below, delivered to the Western Transit Company, the defendant below, at Houghton, Michigan, for shipment over this line to New York city, 25 tons of copper ingots, with direction to store the same upon arrival at Buffalo to await further shipping directions. The copper arrived there September 30, and was placed in the Transit Company's warehouse. Nearly four months later about one ton of it was stolen from the warehouse. An action was brought by the shipper in the city court of Buffalo to recover its value. The Transit Company denied all liability; but the court found that the loss was due to its negligence, and held the company liable for the full value of the copper lost. The judgment of the city court was affirmed by the supreme court of New York at special term, and also by the appellate division of that court. (165 App. Div. 947, 150 N. Y. Supp. 1073.) Applications for an appeal to the court of appeals of New York having been denied, both by the appellate division and by the chief judge of the court of appeals, a writ of error to this court was granted on the ground that the decision below involved a Federal question, namely: the construction and effect of the bill of lading and of tariffs filed under the Act to Regulate Commerce as amended. (Act June 29, 1906, chap. 3591, 34 Stat. at L. 584, Comp. Stat. 1913, § 8563.) The question before this court relates solely to the measure of damages. The shipper contends that it is entitled to the full value of the copper lost, which was $271.38. The carrier contends that the damages recoverable are limited to $94.10; that is, the value not to exceed $100 a ton. In support of this limitation it relies upon the fact that freight was paid at the rate of 18 cents per ton under a bill of lading and a tariff which names the following rates from Houghton, Michigan, to New York city: 'Copper ingots . . . value not to exceed $100 a ton, 18¢ per ton. Copper ingots . . . value not expressed . . . 30¢ per ton.' The shipper insists that it is enforcing the liability of the Transit Company not as carrier, but as warehouseman; and that the terms of its obligation as warehouseman are fixed, not by the bill of lading and the tariff provision quoted above, but wholly by the letter of November 26, 1908, and the circular therein referred to, which are copied in the margin.1 The Transit Company filed with the Interstate Commerce Commission, in addition to its general tariffs covering 'lake and rail' rates, a separate tariff known as I. C. C. No. 236, covering specifically storage and diversion privileges at Buffalo, as set forth in the circular copied in the margin. The filing of this tariff was required by the act (see Goldenberg v. Clyde S. S. Co. 20 Inter. Com. Rep. 527), since the general tariff did not specify the detail of the storage and diversion privileges. The Act to Regulate Commerce, as amended, provides vides expressly (§ 1) that the term 'transportation' includes storage. And § 6 (Comp. St. 1913, § 8569) provides that a carrier must file with the Interstate Commerce Commission tariffs 'showing all the rates, fares, and charges for transportation,' and 'shall also state separately all . . . storage charges, . . . all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates.' The bill of lading, in a form similar to that approved and recommended by the Interstate Commerce Commission (14 Inters. Com. Rep. 346), contains the following, among other provisions: 'It is mutually agreed in consideration of the rate of freight hereinafter named, as to each carrier of all or any of said property over all or any portion of said route to destination and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained, and which are hereby agreed to by the shipper, and by him accepted for himself and his assigns as just and reasonable.' * * * * * 'To be held at Bflo. for orders. 'Value not to exceed $100 per net ton. Limited by written agreement. 'The consignor of this property has the option of shipping same at a higher rate without limitation as to value in case of loss or damage from causes which would make the carrier liable, but agrees to the specified valuation named in case of loss or damage from causes which would make the carrier liable, because of the lower rate thereby accorded for transportation.' * * * * * Conditions. * * * * * '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 of which events such lower value shall be the maximum price to govern such computation.' The release valuation clause in an interstate state bill of lading when based upon a difference in freight rates is valid. Adams Exp. Co. v. Croninger, 226 U. S. 491, 509, 57 L. ed. 314, 321, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148. The limitation of liability by means of such valuation contained in the bill of lading continues although the service of carrying has been completed and the goods are held by the carrier strictly as warehouseman. Cleveland, C. C. & St. L. R. Co. v. Dettlebach, 239 U. S. 588, 60 L. ed. 453, 36 Sup. Ct. Rep. 177. The provisions of the bill of lading govern even where the goods are allowed to remain in the carrier's warehouse after giving receipt therefor and payment of freight. The carrier and the shipper can make no alteration of the terms upon which goods are held under a tariff, until there has been an actual delivery of the goods to the consignee. Southern R. Co. v. Prescott, 240 U. S. 632, 60 L. ed. 836, 36 Sup. Ct. Rep. 469. The reasons are even more persuasive for holding that the terms of a bill of lading govern storage in transit, like that at Buffalo. The contention of the shipper that the letter of November 26, inclosing the circular, created a contract of warehousing wholly independent of the contract of carriage, is contrary to fact. The Transit Company's circular states 'that free storage is furnished on shipments in transit,' and that shipments 'will not be accepted for storage unless arrangements are made with the undersigned previous to forwarding from western lake ports.' Obviously, free storage in transit was granted only to those who shipped over this 'lake and rail' line. The shipper had enjoyed nearly two months' storage when the circular was received in answer to a letter of inquiry. It stated only what was contained in the tariff filed, which every shipper was bound to take notice of. The contention was also made that the judgment below was correct, even if the bill of lading be held to govern the warehousing at Buffalo; because the agreed valuation clause, properly construed, fixes an amount far greater than the actual value for which judgment was rendered. The 'released' or agreed valuation is '$100 per net ton.' There were 25 tons in this shipment. It is insisted that, as the 25 tons constituted a single lot, $2,500 is recoverable for loss of or damage to the whole or to any part of the lot. This construction does violence to the language used and is unreasonable. The valuation clause fixes not an arbitrary limit of recovery, but a ratio. In Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 656, 57 L. ed. 683, 689, 33 Sup. Ct. Rep. 391, where the released valuation clause was applied to a shipment consisting of two boxes and a barrel, and one box was lost, this court said the consignor and carrier must have understood the agreed valuation to mean that the package contained 'household goods of the average value per hundredweight of $5.' The ratio is more naturally applied where the whole shipment is homogeneous. Under this bill of lading the shipper is entitled to recover not more than $100 a ton for each or any ton damaged or lost. Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.

244.US.205

The Federal Employers' Liability Act applies only where the injury occurs in railroad operations or their adjuncts, and cannot be extended to interstate maritime transportation merely because the vessel in the case is owned and operated by an interstate carrier by railroad. The word "boats" in the statute refers to vessels which may be properly regarded as but part of a railroad's extension or equipment as understood and applied in common practice. Under Art. III, § 2, of the Constitution, extending the judicial power of the United States "to all cases of admiralty and maritime jurisdiction," and Art. I, § 8, conferring on Congress power to make all laws which may be necessary and proper for executing the powers vested in the general government or in any of its departments or officers, Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. In the absence of controlling statutes, the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction. The power of the States to change, modify or affect the general maritime law, while existing to some extent under the Constitution and the Judiciary Act of 1789, § 9, Judicial Code, §§ 24, 256, may not contravene the essential purposes of an act of Congress, work material prejudice to the characteristic features of the general maritime law or interfere with the proper harmony and uniformity of that law in its international and interstate relations. Work performed by a stevedore on board a ship in unloading her at wharf in navigable waters is maritime; his employment for such work and injuries suffered in it are likewise maritime, and the rights and liabilities arising from such work, employment and injuries are clearly within the admiralty jurisdiction. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52. A stevedore engaged on an interstate ship in unloading her at wharf in navigable waters in New York was accidentally injured and killed, and an award of compensation was made against the shipowner by the New York Workmen's Compensation Commission under the New York Workmen's Compensation Act (New York Central R. R. Co. v. White, 243 U. S. 188), and affirmed by the courts of that State. Held, that the act as applied to such a case was in conflict with the Constitution and to that extent invalid. The remedy of the New York Workmen's Compensation Act (it provides compensation upon a prescribed scale for injuries and deaths of employees, without regard to fault, to be administered and awarded primarily through a state administrative commission), is a remedy unknown to the common law and incapable of enforcement by the ordinary processes of any court, and hence is not among the common-law remedies which are saved to suitors from the exclusive admiralty jurisdiction by Judiciary Act of 1789, § 9; Judicial Code, §§ 24, 256. The remedy of the New York Workmen's Compensation Act is inconsistent with the policy of Congress to encourage investments in ships, manifested by the Acts of 1851 and 1884 (Rev. Stats., §§ 42834285; c. 121, 23 Stat. 57), which declare a limitation upon the liability of their owners. 215 N. Y. 514, reversed.

Upon a claim regularly presented, the Workmen's Compensation Commission of New York made the following findings of fact, rulings, and award, October 9, 1914: 1. 'Christen Jensen, the deceased workman, was, on August 15, 1914, an employee of the Southern Pacific Company, a corporation of the state of Kentucky, where it has its principal office. It also has an office at Pier 49, North river, New York city. The Southern Pacific Company at said time was, and still is, a common carrier by railroad. It also owned and operated a steamship, El Oriente, plying between the ports of New York and Galveston, Texas. 2. 'On August 15, 1914, said steamship was berthed for discharging and loading at Pier 49, North river, lying in navigable waters of the United States. 3. 'On said date Christen Jensen was operating a small electric freight truck. His work consisted in driving the truck into the steamship El Oriente, where it was loaded with cargo, then driving the truck out of the vessel upon a gangway connecting the vessel with Pier 49, North river, and thence upon the pier, where the lumber was unloaded from the truck. The ship was about 10 feet distant from the pier. At about 10:15 A. M., after Jensen had been doing such work for about three hours that morning, he started out of the ship with his truck loaded with lumber, a part of the cargo of the steamship El Oriente, which was being transported from Galveston, Texas, to New York city. Jensen stood on the rear of the truck, the lumber coming about to his shoulder. In driving out of the port in the side of the vessel and upon the gangway, the truck became jammed against the guide pieces on the gangway. Jensen then reversed the direction of the truck and proceeded at third or full speed backward into the hatchway. He failed to lower his head and his head struck the ship at the top line, throwing his head forward and causing his chin to hit the lumber in front of him. His neck was broken and in this manner he met his death. 4. 'The business of the Southern Pacific Company in this state consisted at the time of the accident and now consists solely in carrying passengers and merchandise between New York and other states. Jensen's work consisted solely in moving cargo destined to and from other states. 5. 'Jensen left surviving him Marie Jensen, his widow, twenty-nine years of age, and Howard Jensen, his son, seven years of age, and Evelyn Jensen, his daughter, three years of age. 6. 'Jensen's average weekly wage was $19.60 per week. 7. 'The injury was an accidental injury and arose out of and in the course of Jensen's employment by the Southern Pacific Company, and his death was due to such injury. The injury did not result solely from the intoxication of the injured employee while on duty, and was not occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or another. 'This claim comes within the meaning of chapter 67 of the Consolidated Laws as re-enacted and amended by chapter 41 of the Laws of 1914, and as amended by chapter 316 of the Laws of 1914. 'Award of compensation is hereby made to Marie Jensen, widow of the deceased, at the rate of $5.87 weekly during her widowhood, with two years' compensation in one sum in case of her marriage; to Harold Jensen, son of the deceased, at the rate of $1.96 per week, and to Evelyn Jensen, daughter of the deceased, at the rate of $1.96 per week until the said Harold Jensen and Evelyn Jensen respectively shall arrive at the age of eighteen years, and there is further allowed the sum of one hundred ($100) dollars for funeral expenses.' In due time the Southern Pacific Company objected to the award 'upon the grounds that the act does not apply, because the workman was engaged in interstate commerce on board a vessel of a foreign corporation of the state of Kentucky, which was engaged solely in interstate commerce; that the injury was one with respect to which Congress may establish, and has established, a rule of liability, and under the language of § 1141 [copied in the margin], the act has no application; on the ground that the act includes only those engaged in the operation of vessels other than those of other states and countries in foreign and interstate commerce, while the work upon which the deceased workman was engaged at the time of his death was part of the operation of a vessel of another state, engaged in interstate commerce, and hence does not come within the provisions of the act; further, that the act is unconstitutional, as it constitutes a regulation of and burden upon commerce among the several states, in violation of article 1, § 8, of the Constitution of the United States; in that it takes property without due process of law, in violation of the 14th Amendment of the Constitution; in that it denies the Southern Pacific Company the equal protection of the laws, in violation of the 14th Amendment of the Constitution, because the act does not afford an exclusive remedy, but leaves the employer and its vessels subject to suit in admiralty; also that the act is unconstitutional in that it violates article 3, § 2, of the Constitution, conferring admiralty jurisdiction upon the courts of the United States.' Without opinion, the appellate division approved the award and the court of appeals affirmed this action (215 N. Y. 514, L.R.A.1916A, 403, 109 N. E. 600, Ann. Cas. 1916B, 276), holding that the Workmen's Compensation Act applied to the employment in question and was not obnoxious to the Federal Constitution. It said: 'The scheme of the statute is essentially and fundamentally one by the creation of a state fund to insure the payment of a prescribed compensation based on earnings for disability or death from accidental injuries sustained by employees engaged in certain enumerated hazardous employments. The state fund is created from premiums paid by employers based on the pay roll, the number of employees, and the hazards of the employment. The employer has the option of insuring with any stock corporation or mutual association authorized to transact such business, or of furnishing satisfactory proof to the Commission of his own financial ability to pay. If he does neither, he is liable to a penalty equal to the pro rata premium payable to the state fund during the period of his noncompliance, and is subject to a suit for damages by the injured employee, or his legal representative in case of death, in which he is deprived of the defenses of contributory negligence, assumed risk, and negligence of a fellow servant. By insuring in the state fund, or by himself or his insurance carrier paying the prescribed compensation, the employer is relieved from further liability for personal injuries or death sustained by employees. Compensation is to be made without regard to fault as a cause of the injury, except where it is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or another, or results solely from his intoxication while on duty. Compensation is not based on the rule of damages applied in negligence suits, but, in addition to providing for medical, surgical, or other attendance or treatment and funeral expenses, it is based solely on loss of earning power. Thus, the risk of accidental injuries occurring with or without fault on the part either of employee or employer is shared by both, and the burden of making compensation is distributed over all the enumerated hazardous employments in proportion to the risks involved.' See also Walker v. Clyde S. S. Co. 215 N. Y. 529, 109 N. E. 604, Ann. Cas. 1916B, 87. In New York C. R. Co. v. White (decited March 6th), 243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247, we held the statute valid in certain respects; and, considering what was there said, only two of the grounds relied on for reversal now demand special consideration. First. Plaintiff in error, being an interstate common carrier by railroad, is responsible for injuries received by employees while engaged therein under the Federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. chap. 149, p. 65, Comp. Stat. 1916, § 8657), and no state statute can impose any other or different liability. Second. As here applied, the Workmen's Compensation Act conflicts with the general maritime law, which constitutes an integral part of the Federal law under art. 3, § 2, of the Constitution, and to that extent is invalid. The Southern Pacific Company, a Kentucky corporation, owns and operates a railroad as a common carrier; also the steamship El Oriente, plying between New York and Galveston, Texas. The claim is that therefore rights and liabilities of the parties here must be determined in accordance with the Federal Employers' Liability Act. But we think that act is not applicable in the circumstances. The First Federal Employers' Liability Act (June 11, 1906, 34 Stat. at L. 232, chap. 3073) extended in terms to all common carriers engaged in interstate or foreign commerce, and, because it embraced subjects not within the constitutional authority of Congress, was declared invalid. Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141, Jan. 6, 1908. The later act is carefully limited and provides that 'every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representatives, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.' Evidently the purpose was to prescribe a rule applicable where the parties are engaging in something having direct and substantial connection with railroad operations, and not with another kind of carriage recognized as separate and distinct from transportation on land and no mere adjunct thereto. It is unreasonable to suppose that Congress intended to change long-established rules applicable to maritime matters merely because the ocean-going ship concerned happened to be owned and operated by a company also a common carrier by railroad. The word 'boats' in the statute refers to vessels which may be properly regarded as in substance but part of a railroad's extension or equipment as understood and applied in common practice. The fundamental purpose of the Compensation Law, as declared by the court of appeals, is 'the creation of a state fund to insure the payment of a prescribed compensation based on earnings for disability or death from accidental injuries sustained by employees engaged in certain enumerated hazardous employments,' among them being 'longshore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other products or materials, or moving or handling the same, on any dock, platform or place, or in any warehouse or other place of storage.' Its general provisions are specified in our opinion in New York C. R. Co. v. White, supra, and need not be repeated. Under the construction adopted by the state courts no ship may load or discharge her cargo at a dock therein without incurring a penalty, unless her owners comply with the act, which, in order to secure payment of conpensation for accidents, generally without regard to fault, and based upon annual wages, provides (§ 50) that—'an employer shall secure compensation to his employees in one of the following ways: '1. By insuring and keeping insured the payment of such compensation in the state fund, or 2. By insuring and keeping insured the payment of such compensation with any stock corporation or mutual association authorized to transact the business of workmen's compensation insurance in this state. If insurance be so effected in such a corporation of mutual association the employer shall forthwith file with the Commission, in form prescribed by it, a notice specifying the name of such insurance corporation or mutual association together with a copy of the contract or policy of insurance. 3. By furnishing satisfactory proof to the Commission of his financial ability to pay such compensation for himself, in which case the Commission may, in its discretion, require the deposit with the Commission of securities of the kind prescribed in section thirteen of the Insurance Law, in an amount to be determined by the Commission, to secure his liability to pay the compensation provided in this chapter.' 'If an employer fail to comply with this section, he shall be liable to a penalty during which such failure continues of an amount equal to the pro rata premium which would have been payable for insurance in the state fund for such period of noncompliance to be recovered in an action brought by the Commission.' Article 3, § 2, of the Constitution, extends the judicial power of the United States 'to all cases of admiralty and maritime jurisdiction;' and article 1, § 8, confers upon the Congress power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.' Considering our former opinions, it must now be accepted as settled doctrine that, in consequence of these provisions, Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. Butler v. Boston & S. S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612; Re Garnett, 141 U. S. 1, 14, 35 L. ed. 631, 634, 11 Sup. Ct. Rep. 840. And further, that, in the absence of some controlling statute, the general maritime law, as accepted by the Federal courts, constitutes part of our national law, applicable to matters within the admiralty and maritime jurisdiction. The Lottawanna (Rodd v. Heartt) 21 Wall. 558, 22 L. ed. 654; Butler v. Boston & S. S. S. Co. 130 U. S. 527, 557, 32 L. ed. 1017, 1024, 9 Sup. Ct. Rep. 612; Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212. In The Lottawanna, Mr. Justice Bradley, speaking for the court, said: 'That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' . . . One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states.' By § 9, Judiciary Act of 1789 (1 Stat. at L. 76, 77, chap. 20), the district courts of the United States were given 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, . . . saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.' And this grant has been continued. Judicial Code, §§ 24 and 256 [36 Stat. at L. 1091, 1160, chap. 231, Comp. Stat. 1916, §§ 991(1), 1233]. In view of these constitutional provisions and the Federal act it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation. That this may be done to some extent cannot be denied. A lien upon a vessel for repairs in her own port may be given by state statute (The Lottawanna (Rodd v. Heartt) 21 Wall. 558, 579, 580, 22 L. ed. 654, 663, 664; The J. E. Rumbell, 148 U. S. 1, 37 L. ed. 345, 13 Sup. Ct. Rep. 498); pilotage fees fixed (Cooley v. Port Wardens, 12 How. 299, 13 L. ed. 996; Ex parte McNiel, 13 Wall. 236, 242, 20 L. ed. 624, 626); and the right given to recover in death cases (The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 52 L. ed. 264, 28 Sup. Ct. Rep. 133; La Bourgogne (Deslions v. La Compagnie Generale Transatlantique) 210 U. S. 95, 138, 52 L. ed. 973, 993, 28 Sup. Ct. Rep. 664). See The City of Norwald, 55 Fed. 98, 106. Equally well established is the rule that state statutes may not contravene an applicable act of Congress or affect the general maritime law beyond certain limits. They cannot authorize proceedings in rem according to the course in admiralty (The Moses Taylor, 4 Wall. 411, 18 L. ed. 397; American S. B. Co. v. Chase, 16 Wall. 522, 534, 21 L. ed. 369, 372; The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930); nor create liens for materials used in repairing a foreign ship (The Roanoke, 189 U. S. 185, 47 L. ed. 770, 23 Sup. Ct. Rep. 491). See Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212. And plainly, we think, no such legislation is valid if it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations. This limitation, at the least, is essential to the effective operation of the fundamental purposes for which such law was incorporated into our national laws by the Constitution itself. These purposes are forcefully indicated in the foregoing quotations from The Lottawanna. A similar rule in respect to interstate commerce, deduced from the grant to Congress of power to regulate it, is now firmly established. 'Where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the states, such as transportation between the states, including the importation of goods from one state to another, Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free.' Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 507, 508, 31 L. ed. 700, 714, 715, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; Vance v. W. A. Vandercook Co. 170 U. S. 438, 444, 42 L. ed. 1100, 1103, 18 Sup. Ct. Rep. 674; Clark Distilling Co. v. Western Maryland R. Co. 242 U. S. 311, 61 L. ed. 326, L.R.A. 1917B, 1218, 37 Sup. Ct. Rep. 180, decided January 8, 1917. And the same character of reasoning which supports this rule, we think, makes imperative the stated limitation upon the power of the states to interpose where maritime matters are involved. The work of a stevedore, in which the deceased was engaging, is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59, 60, 58 L. ed. 1208, 1211, 1212, 51 L.R.A.(N.S.) 1157, 34 Sup. Ct. Rep. 733. If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other states may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish; and freedom of navigation between the states and with foreign countries would be seriously hampered and impeded. A far more serious injury would result to commerce than could have been inflicted by the Washington statute authorizing a materialman's lien, condemned in The Roanoke. The legislature exceeded its authority in attempting to extend the statute under consideration to conditions like those here disclosed. So applied, it conflicts with the Constitution and to that extent is invalid. Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested in the Federal district courts, 'saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.' The remedy which the Compensation Statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court, and is not saved to suitors from the grant of exclusive jurisdiction. The Hine v. Trevor, 4 Wall. 571, 572, 18 L. ed. 456; The Belfast, 7 Wall. 624, 644, 19 L. ed. 266, 272; American S. B. Co. v. Chase, 16 Wall. 522, 531, 533, 21 L. ed. 369, 371, 372; The Glide, 167 U. S. 606, 623, 42 L. ed. 296, 302, 17 Sup. Ct. Rep. 930. And finally, this remedy is not consistent with the policy of Congress to encourage investments in ships, manifested in the Acts of 1851 [9 Stat. at L. 635, chap. 43] and 1884 (Rev. Stat. 4283-4285, Comp. Stat. 1916, §§ 8021-8023; § 18, Act of June 26, 1884, 23 Stat. at L. 57, chap. 121, Comp. Stat. 1916, § 8028), which declare a limitation upon the liability of their owners. Richardson v. Harmon, 222 U. S. 96, 104, 56 L. ed. 110, 113, 32 Sup. Ct. Rep. 27. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. The Southern Pacific Company has been held liable under the statutes of New York for an accidental injury happening upon a gang-plank between a pier and the company's vessel, and causing the death of one of its employees. The company not having insured as permitted, the statute may be taken as if it simply imposed a limited but absolute liability in such a case. The short question is whether the power of the state to regulate the liability in that place and to enforce it in the state's own courts is taken away by the conferring of exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction upon the courts of the United States. There is no doubt that the saving to suitors of the right of a common-law remedy leaves open the common-law jurisdiction of the state courts, and leaves some power of legislation, at least, to the states. For the latter I need do no more than refer to state pilotage statutes, and to liens created by state laws in aid of maritime contracts. Nearer to the point, it is decided that a statutory remedy for causing death may be enforced by the state courts, although the death was due to a collision upon the high seas. American S. B. Co. v. Chase, 16 Wall. 522, 21 L. ed. 369; Sherlock v. Alling, 93 U. S. 99, 104, 23 L. ed. 819, 820; Knapp, S. & Co. Co. v. McCaffrey, 177 U. S. 638, 646, 44 L. ed. 921, 925, 20 Sup. Ct. Rep. 824; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 409, 57 L. ed. 1511, 1545, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A. 18. The misgivings of Mr. Justice Bradley were adverted to in The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 52 L. ed. 264, 28 Sup. Ct. Rep. 133, and held at least insufficient to prevent the admiralty from recognizing such a statecreated right in a proper case, if indeed they went to any such extent. La Bourgogne (Deslions v. La Compagnie Generale Transatlantique) 210 U. S. 95, 138, 52 L. ed. 973, 993, 28 Sup. Ct. Rep. 664. The statute having been upheld in other respects (New York C. R. Co. v. White, 243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247), I should have thought these authorities conclusive. The liability created by the New York act ends in a money judgment, and the mode in which the amount is ascertained, or is to be paid, being one that the state constitutionally might adopt, cannot matter to the question before us if any liability can be imposed that was not known to the maritime law. And as such a liability can be imposed where it was unknown not only to the maritime but to the common law, I can see no difference between one otherwise constitutionally created for death caused by accident and one for death due to fault. Neither can the statutes limiting the liability of owners affect the case. Those statutes extend to nonmaritime torts, which, of course, are the creation of state law. Richardson v. Harmon, 222 U. S. 96, 104, 56 L. ed. 110, 113, 32 Sup. Ct. Rep. 27. They are paramount to but not inconsistent with the new cause of action. However, as my opinion stands on grounds that equally would support a judgment for a maritime tort not ending in death, with which admiralty courts have begun to deal, I will state the reasons that satisfy my mind. No doubt there sometimes has been an air of benevolent gratuity in the admiralty's attitude about enforcing state laws. But of course there is no gratuity about it. Courts cannot give or withhold at pleasure. If the claim is enforced or recognized it is because the claim is a right, and if a claim depending upon a state statute is enforced, it is because the state had constitutional power to pass the law. Taking it as established that a state has constitutional power to pass laws giving rights and imposing liabilities for acts done upon the high seas when there were no such rights or liabilities before, what is there to hinder its doing so in the case of a maritime tort? Not the existence of an inconsistent law emanating from a superior source, that is, from the United States. There is no such law. The maritime law is not a corpus juris—it is a very limited body of customs and ordinances of the sea. The nearest to anything of the sort in question was the rule that a seaman was entitled to recover the expenses necessary for his cure when the master's negligence caused his hurt. The maritime law gave him no more. The Osceola, 189 U. S. 158, 175, 47 L. ed. 760, 764, 23 Sup. Ct. Rep. 483. One may affirm with the sanction of that case that it is an innovation to allow suits in the admiralty by seamen to recover damages for personal injuries caused by the negligence of the master, and to apply the common-law principles of tort Now, however, common-law principles have been applied to sustain a libel by a stevedore in personam against the master for personal injuries suffered while loading a ship. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 58 L. ed. 1208, 51 L.R.A.(N.S.) 1157, 34 Sup. Ct. Rep. 733, and The Osceola recognizes that in some cases, at least, seamen may have similar relief. From what source do these new rights come? The earliest case relies upon 'the analogies of the municipal law' (The Edith Godden, 23 Fed. 43, 46),—sufficient evidence of the obvious pattern, but inadequate for the specific origin. I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say, 'I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court.' No more could a judge, exercising the limited jurisdiction of admiralty, say, 'I think well of the common-law rules of master and servant, and propose to introduce them here en bloc.' Certainly he could not in that way enlarge the exclusive jurisdiction of the district courts and cut down the power of the states. If admiralty adopts common-law rules without an act of Congress, it cannot extend the maritime law as understood by the Constitution. It must take the rights of the parties from a different authority, just as it does when it enforces a lien created by a state. The only authority available is the common law or statutes of a state. For from the often-repeated statement that there is no common law of the United States (Wheaton v. Peters, 8 Pet. 591, 658, 8 L. ed. 1055, 1079; Western U. Teleg. Co. v. Call Pub. Co. 181 U. S. 92, 101, 45 L. ed. 765, 770, 21 Sup. Ct. Rep. 561), and from the principles recognized in Atlantic Transport Co. v. Imbrovek having been unknown to the maritime law, the natural inference is that, in the silence of Congress, this court has believed the very limited law of the sea to be supplemented here as in England by the common law, and that here that means, by the common law of the state. Sherlock v. Alling, 93 U. S. 99, 104, 23 L. ed. 819, 820. Taylor v. Carryl, 20 How. 583, 598, 15 L. ed. 1028, 1033. So far as I know, the state courts have made this assumption without criticism or attempt at revision from the beginning to this day; e. g., Wilson v. MacKenzie, 7 Hill, 95, 42 Am. Dec. 51; Gabrielson v. Waydell, 135 N. Y. 1, 11, 17 L.R.A. 228, 31 Am. St. Rep. 793, 31 N. E. 969; Kalleck v. Deering, 161 Mass. 469, 37 N. E. 450, 42 Am. St. Rep. 421, 15 Am. Neg. Cas. 672. See Ogle v. Barnes, 8 T. R. 188, 101 Eng. Reprint, 1338; Nicholson v. Mounsey, 15 East, 384, 104 Eng. Reprint, 890, 13 Revised Rep. 501. Even where the admiralty has unquestioned jurisdiction the common law may have concurrent authority and the state courts concurrent power. Schoonmaker v. Gilmore, 102 U. S. 118, 26 L. ed. 95. The invalidity of state attempts to create a remedy for maritime contracts or torts, parallel to that in the admiralty, that was established in such cases as The Moses Taylor, 4 Wall. 411, 18 L. ed. 397, and The Hine v. Trevor, 4 Wall. 555, 18 L. ed. 451, is immaterial to the present point. The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact. It always is the law of some state, and if the district courts adopt the common law of torts, as they have shown a tendency to do, they thereby assume that a law not of maritime origin, and deriving its authority in that territory only from some particular state of this Union, also governs maritime torts in that territory,—and if the common law, the statute law has at least equal force, as the discussion in The Osceola assumes. On the other hand, the refusal of the district courts to give remedies coextensive with the common law would prove no more than that they regarded their jurisdiction as limited by the ancient lines,—not that they doubted that the common law might and would be enforced in the courts of the states as it always has been. This court has recognized that in some cases different principles of liability would be applied as the suit should happen to be brought in a common law or admiralty court. Compare The Max Morris, 137 U. S. 1, 34 L. ed. 586, 11 Sup. Ct. Rep. 29, with Belden v. Chase, 150 U. S. 674, 691, 37 L. ed. 1218, 1224, 14 Sup. Ct. Rep. 269. But hitherto it has not been doubted authoritatively, so far as I know, that even when the admiralty had a rule of its own to which it adhered, as in Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212, the state law, common or statute, would prevail in the courts of the state. Happily such conflicts are few. It might be asked why, if the grant of jurisdiction to the courts of the United States imports a power in Congress to legislate, the saving of a common-law remedy, i. e., in the state courts, did not import a like if subordinate power in the states. But leaving that question on one side, such cases as American S. B. Co. v. Chase, 16 Wall. 522, 21 L. ed. 369; The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 52 L. ed. 264, 28 Sup. Ct. Rep. 133, and Atlantic Transport Co. v. Imbrovek, supra, show that it is too late to say that the mere silence of Congress excludes the statute or common law of a state from supplementing the wholly inadequate maritime law of the time of the Constitution, in the regulation of personal rights, and I venture to say that it never has been supposed to do so, or had any such effect. As to the specter of a lack of uniformity, I content myself with referring to The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 406, 52 L. ed. 264, 270, 28 Sup. Ct. Rep. 133. The difficulty really is not so great as in the case of interstate carriers by land, which, 'in the absence of Federal statute providing a different rule, are answerable according to the law of the state for nonfeasance or misfeasance within its limits.' Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 408, 57 L. ed. 1511, 1545, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18, and cases cited. The conclusion that I reach accords with the considered cases of Lindstrom v. Mutual S. S. Co. 132 Minn. 328, L.R.A.1916D, 935, 156 N. W. 669; Kennerson v. Thames Towboat Co. 89 Conn. 367, L.R.A.1916A, 436, 94 Atl. 372; and North Pacific S. S. Co. v. Industrial Acci. Commission, Cal. ——, 163 Pac. 199, as well as with the New York decision in this case. 215 N. Y. 514, L.R.A.1916A, 403, 109 N. E. 600, Ann. Cas. 1916B, 276, 9 N. C. C. A. 286. While concurring substantially in the dissenting opinion of Mr. Justice Holmes, I deem it proper, in view of the momentous consequences of the decision, to present some additional considerations. This dissent is confined to that part of the prevailing opinion which holds that the Workmen's Compensation Act of New York, as applied by the state court to a fatal injury sustained by a stevedore while engaged in work of a maritime nature upon navigable water within that state, conflicts with the Constitution of the United States and the act of Congress conferring admiralty and maritime jurisdiction in civil cases upon the district courts of the United States, and is to that extent invalid. Except for the statute, an action might have been brought in a court of admiralty. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 62, 58 L. ed. 1208, 1212, 51 L.R.A.(N.S.) 1157, 34 Sup. Ct. Rep. 733. No question is raised respecting the jurisdiction of the state court over the subject-matter. But plaintiff in error contends, and the prevailing opinion holds, that it was a violation of a Federal right for the state court to apply the provisions of the local statute to a cause of action of maritime origin, because, by the Constitution of the United States, admiralty jurisdiction was conferred upon the Federal courts. It should be stated, at the outset, that the case involves no question of penalties imposed by the New York act, but affects solely the responsibility of the employer to make compensation to the widow, in accordance with its provisions, which are outlined in New York C. R. Co. v. White, 243 U. S. 188, 192-195, 61 L. ed. 667, 37 Sup. Ct. Rep. 247. The argument is that, even in the absence of any act of Congress prescribing the responsibility of a shipowner to his stevedore, the general maritime law, as accepted by the Federal courts when acting in the exercise of their admiralty jurisdiction, must be adopted as the rule of decision by state courts of common law when passing upon any case that might have been brought in the admiralty; and that, just as the absence of an act of Congress regulating interstate commerce in some cases is equivalent to a declaration by Congress that commerce in that respect shall be free, so nonaction by Congress amounts to an imperative limitation upon the power of the states to interpose where maritime matters are involved. This view is so entirely unsupported by precedent, and will have such novel and farreaching consequences, that it ought not to be accepted without the most thorough consideration. Section 2 of article 3 of the Constitution reads as follows: 'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens of Subjects.' Acting under the authority of article 1, § 8, which empowers Congress to make all laws necessary and proper for carrying into execution the powers vested in the government or in any department or officer thereof, the first Congress, in the original Judiciary Act (Act of September 24, 1789, chap. 20, § 9, 1 Stat. at L. 73, 77), conferred upon the Federal district courts 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, . . . saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.' The saving clause has been preserved in all subsequent revisions. Rev. Stat. § 563(8), Judicial Code, § 24(3), 36 Stat. at L. 1087, 1091, chap. 231, Comp. Stat. 1916, §§ 968, 991(3). From the language quoted from the Constitution, read in the light of the general purpose of that instrument and the contemporaneous construction found in the Judiciary Act, with regard also to the mischiefs that called for the establishment of a national judiciary, and from what I believe to be the unbroken current of decisions in this court from that day until the present, I draw the following conclusions: (1) That the framers of the Constitution intended to establish jurisdiction, the power to hear and determine controversies of the various classes specified,—and not to prescribe particular codes or systems of law for the decision of those controversies; (2) that the civil jurisdiction in admiralty was not intended to be exclusive of the courts of common law, at least not until Congress should deem it proper so to enact; (3) that by the law of England, and by the practice of the colonial governments, the courts of common law, of equity, and of admiralty, were controlled in their decisions by separate, and, in a sense, independent systems of substantive law, and the constitutional grant of judicial power in 'all cases in law and equity,' and in 'all cases of admiralty and maritime jurisdiction,' was no more intended (in the absence of legislation by Congress) to make the rules of maritime law binding upon the Federal courts of common law when exercising their concurrent jurisdiction, than to make the rules of the common law binding upon the courts of admiralty; (4) that, if not binding upon the Federal courts, it results, a fortiori, that the rules of maritime law were not intended to be made binding upon the courts of the states; (5) that it is not necessary, in order to give full effect to the grant of admiralty and maritime jurisdiction, to imply that the rules of decision prevailing in admiralty must be binding upon common-law courts exercising concurrent jurisdiction in civil causes of maritime origin, and to give such a construction to the Constitution is to render unconstitutional the saving clause in § 9 of the Judiciary Act, and also to trench upon the proper powers of the states by interfering with their control over their water-borne internal commerce; and (6) that, in the absence of legislation by Congress abrogating the saving clause, the states are at liberty to administer their own laws in their own courts when exercising a jurisdiction concurrent with that of admiralty, and at liberty to change those laws by statute. That the language of § 2 of art. 3 of the Constitution speaks only of establishing jurisdiction, and does not prescribe the mode in which or the substantive law by which the exercise of that jurisdiction is to be governed, seems to me entirely plain; and upon this point I need only refer to the language itself, which I have quoted. That this view is in harmony with the general purpose of the Constitution seems to me equally plain. At this late date it ought not to be necessary to repeat that the object of the framers of that instrument was to lay the foundations of a government, to set up its framework, and to establish merely the general principles by which it was to be animated; avoiding, as far as possible, any but the most fundamental regulations for controlling its operations, and these usually in the form of restrictions. Vanhorne v. Dorrance, 2 Dall. 304, 308, 1 L. ed. 391, 393, Fed. Cas. No. 16,857; Martin v. Hunter, 1 Wheat. 304, 326, 4 L. ed. 97, 102. The object was to enumerate, rather than to define, the powers granted. Gibbons v. Ogden, 9 Wheat. 1, 189, 194, 6 L. ed. 23, 68, 69; Passenger Cases, 7 How. 283, 549, 12 L. ed. 702, 813; Lottery Case (Champion v. Ames) 188 U. S. 321, 346, 47 L. ed. 492, 497, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561. To delineate only the great outlines of the judicial power, leaving the details to Congress, while providing for the organization of the legislative department and the mode in which and the restrictions under which its authority should be exercised. Rhode Island v. Massachusetts, 12 Pet. 657, 721, 9 L. ed. 1233, 1259. The reason for adopting general outlines only was well expressed by Mr. Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 316, 407, 4 L. ed. 579, 601: 'A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language.' The adoption of any particular system of substantive law was not within the purpose of the Constitutional Convention; and the clause establishing the judicial power was ill-adapted to the purpose, had it existed. So far as they intended to prescribe permanent rules of substantive or even procedural law in connection with the establishment of the judicial system, the framers employed express terms for the purpose, as appears from other provisions of article 3, including the definition of treason, the character of proof required, the limitation of the punishment, and the requirement of a jury trial for this and other crimes. In a somewhat exhaustive examination of various sources of information, including Elliot's Debates, Farrand's Records of the Federal Convention, and The Federalist, Nos. 80-83, I have been unable to find anything even remotely suggesting that the judicial clause was designed to establish the maritime code or any other system of laws for the determination of controversies in the courts by it established, much less any suggestion that the maritime code was to constitute the rule of decision in common-law courts, either Federal or state. Certainly, there is nothing in the mere provision establishing jurisdiction in admiralty and maritime causes to have that effect, unless the jurisdiction so established was in its nature exclusive. But, in civil causes, the jurisdiction was not exclusive by the law of England and of the colonies, and it was not made an exclusive jurisdiction by the Constitution. In discussing this point, the distinction between the instance court and the prize court of admiralty must be observed. It was held in England that the question of prize or no prize, and other questions arising out of it, were exclusively cognizable in the admiralty, because that court took jurisdiction owing to the fact of possession of a prize of war, and the controversy turned upon belligerent rights and was determinable by the law of nations, and not the particular municipal law of any country. Le Caux v. Eden (1781) 2 Dougl. K. B. 594, 602-613, 99 Eng. Reprint, 375, 379-385; Lindo v. Rodney, reported in a note to Le Caux v. Eden, 2 Dougl. K. B. 613, 99 Eng. Reprint, 385; Smart v. Wolff (1789) 3 T. R. 323, 340, et seq., 100 Eng. Reprint, 600; Camden v. Home (1791) 4 T. R. 382, 393, et seq., 100 Eng. Reprint, 1076, 6 Bro. P. C. 203, 2 Eng. Reprint, 1028, 2 H. Bl. 533, 126 Eng. Reprint, 687. But of civil actions in personam the instance court exercised a jurisdiction concurrent with that of the courts of common law. As Ld. Mansfield said in Lindo v. Rodney, 2 Dougl. K. B. 614: 'A thing being done upon the high sea don't exclude the jurisdiction of the court of common law. For seizing, stopping, or taking a ship, upon the high sea, not as prize, an action will lie; but for taking as prize, no action will lie. The nature of the question excludes; not the locality.' And again, referring to the effect of certain statutes (p. 615): 'The taking a ship upon the high sea is triable at law to repair the plaintiff in damages; but a taking on the high sea as prize is not triable at law to repair the plaintiff in damages. The nature of the ground of the action—prize or no prize—not only authorizes the prize court, but excludes the common law. These statutes don't exclude the common law in any case, and they confine the admiralty by the locality of the thing done, which is the cause of action. It must be done upon the high sea.' So, with respect to actions ex contractu, Mr. Justice Blackstone says, 3 Bl. Com. 107: 'It is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the royal exchange, or other inland place, in order to draw the cognizance of the suit from the courts of admiralty to those of Westminster Hall.' The concurrent jurisdiction of the courts of common law was affirmed by Dr. Browne, the first edition of whose work was published in 1797-1799. 2 Browne, Civil & Admiralty Law, 1st Am. ed. 112, 115. The declaration of Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 390, 12 L. ed. 465, 485, that the lodging by the Constitution of the entire admiralty power in the Federal judiciary, and the 9th section of the Judiciary Act, with its saving of common-law remedies, left the concurrent power of the courts of common law and of admiralty where it stood at common law, was not a chance remark. It has been so ruled in many other cases, to which I shall refer hereafter. The principles and history of the common law were well known to the framers of the Constitution and the members of the first Congress; it was from that system that their terminology was derived; and the provisions of the Constitution and contemporaneous legislation must be interpreted accordingly. The statement that there is no common law of the United States (Wheaton v. Peters, 8 Pet. 591, 658, 8 L. ed. 1055, 1079; Smith v. Alabama, 124 U. S. 465, 478, 31 L. ed. 508, 512, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564) is true only in the sense that the Constitution neither of its own force imposed, nor authorized Congress to impose, the common law or any other general body of laws upon the several states for the regulation of their internal affairs. As was pointed out in Smith v. Alabama (p. 478): 'There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' As was well expressed by Shiras, District Judge, in Murray v. Chicago & N. W. R. Co. 62 Fed. 24, 31: 'From them [citations of the decisions of this court] it appears beyond question, that the Constitution, the Judiciary Act of 1789, and all subsequent statutes upon the same subject, are based upon the general principles of the common law, and that, to a large extent, the legislative and judicial action of the government would be without support and without meaning if they cannot be interpreted in the light of the common law. When the Constitution was adopted, it was not the design of the framers thereof to create any new systems of general law, nor to supplant those already in existence. At that time there were in existence and in force in the colonies or states, and among the people thereof, the law of nations, the law admiralty and maritime, the common law, including commercial law, and the system of equity. Upon these foundations the Constitution was erected. The problem sought to be solved was not whether the Constitution should create or enact a law of nations, of admiralty, of equity, or the like, but rather how should the executive, legislative, and judicial powers and duties based upon these systems, and necessary for the proper development and enforcement thereof, be apportioned between the national and state governments.' And it is not to be supposed that the framers of the Constitution, familiar with the institutions and the principles of the common law, by which the admiralty jurisdiction was allowed on sufferance, and with a degree of jealousy born of the fact that the courts of admiralty were not courts of record, that they followed the practice of the civil law, allowed no trial by jury, and administered an exotic system of laws (3 Bl. Com. 69, 86, 87, 106-108),—it is not to be supposed, I say, that the framers of the Constitution, in granting judicial power over cases of admiralty and maritime jurisdiction, along with like power over all cases in law and equity arising under the laws of the United States, intended to exclude common-law courts, state or national, from any part of their concurrent jurisdiction in cases of maritime origin, or to deprive them of the judicial power, theretofore existing, to decide such cases according to the rules of the common law. It is matter of familiar history that one of the chief weaknesses of the Confederation was in the absence of a judicial establishment possessed of general authority. Except that the Continental Congress, as an incident of the war power, was authorized to establish rules respecting captures and the disposition of prizes of war, and to appoint courts for the trial of piracies and felonies committed on the high sea, and for determining appeals in cases of capture, and except that the Congress itself, through commissioners, was to exercise jurisdiction in disputes between the states and in controversies respecting conflicting land grants of different states, there was no provision in the Articles of Confederation for establishing a judicial system under the authority of the general government. The result was that not only private parties, in cases arising out of the laws of the Congress, but the United States themselves, were obliged to resort to the courts of the states for the enforcement of their rights. Many cases of this character are reported, some even antedating the Confederation. Respublica v. Sweers (1779) 1 Dall. 41, 1 L. ed. 29; Respublica v. Powell (1780) 1 Dall. 47, 1 L. ed. 31; Respublica v. De Longchamps (1784) 1 Dall. 111, 1 L. ed. 59. Even treason was punished in state courts and under state laws. See cases of Molder, Malin, Carlisle, and Roberts (1778) 1 Dall. 33-39, 1 L. ed. 25-27. Before the Revolution, courts of admiralty jurisdiction were a part of the judicial systems of the several colonies. Waring v. Clarke, 5 How. 441, 454-456, 12 L. ed. 226, 232-234, Benedict, Admiralty, §§ 118-165. Upon the outbreak of the war questions of prize law became acute, and the colonial Congress, by resolutions of November 25, 1775, passed in the exercise of the war power (Penhallow v. Doane, 3 Dall. 54, 80, 1 L. ed. 507, 518), made appropriate recommendations for the treatment of prizes of war, but remitted the jurisdiction over such questions to the courts of the several colonies, reserving to itself only appellate authority. This system continued until the year 1780 (after the submission of the Articles of Confederation, but before their final ratification), when the Congress established a court for the hearing of appeals from the state courts of admiralty in cases of capture. The opinions of this court are reported in 2 Dall. 1-42, 1 L. ed. 263-281, and numerous cases decided without opinion, as well as some of those decided by committees of the Congress prior to the establishment of the court, are referred to in the late Bancroft Davis's 'Federal Courts Before the Constitution,' 131 U. S. xix.—xlix., Appx. The weak point of this system was the want of power in the central government to enforce the judgment of the appellate tribunal when it chanced to reverse the decree of a state court. There were some curious cases of conflicting jurisdiction, illustrated by Doane v. Penhallow (1787) 1 Dall. 218, 221, 1 L. ed. 108, 109; Penhallow v. Doane (1795) 3 Dall. 54, 79, 86, 1 L. ed. 507, 517, 520; and United States v. Peters (1809) 5 Cranch, 115, 135, 137, 3 L. ed. 53, 59, 60. It was under the influence of numerous experiences of the inefficiency of a general government unendowed with judicial authority that the Constitutional Convention assembled in the year 1787. The fundamental need, to which the Convention addressed itself in framing the judiciary article, was to set up a judicial power covering all subjects of national concern. There was no greater need to establish jurisdiction over admiralty and maritime causes than over controversies arising under the Constitution and laws of the Union. There was no purpose to establish a system of substantive law in any of the several classes of cases included within the grant of judicial power. The language employed makes it plain that, with the few express exceptions already noted (treason, etc.) the rules of decision were to be sought elsewhere. The entire absence of a purpose to establish a maritime code is manifest not only from the omission of any reference to the laws of Oleron, the laws of Wisbuy, or any other of the maritime codes recognized by the nations of Europe, but further from the fact that the colonies differed among themselves as to maritime law and admiralty practice, and that their system in general differed from that which was administered in England. The evident purpose, in this as in the other classes of controversy, was that the courts of admiralty should administer justice according to the previous course and practice of such courts in the colonies, just as the courts of common law and equity jurisdiction were to proceed according to the several systems of substantive law appropriate to courts of their respective kinds; subject, of course, to the power of Congress to change the rules of law respecting matters lying within its appropriate sphere of action. Undoubtedly the framers of the Constitution were advised of the ancient controversy in England between the common-law courts and the courts of admiralty respecting the extent of the jurisdiction of the latter. They were aware of the dual function of the admiralty courts as courts of instance and as prize courts, and of the established rule that in civil causes the jurisdiction of the instance court was concurrent with that of the courts of common law. They must have known that, whatever question had existed as to the territorial limits of the jurisdiction of the admiralty, it never had been questioned that in suits for mariners' wages and suits upon policies of marine insurance, and in other actions ex contractu having a maritime character, and also in actions of tort arising upon the sea, the courts of common law exercised, and long had exercised, concurrent jurisdiction. Whatever early doubts may have existed had been based not upon any inherent incapacity of the common-law courts to deal with the subject-matters, but upon the ancient theory of the venue, and disappeared with the recognition of the fictitious venue. The grant of judicial power in cases of admiralty and maritime jurisdiction never has been construed as excluding the jurisdiction of the courts of common law over civil causes that, before the Constitution, were subject to the concurrent jurisdiction of the courts of admiralty and the common-law courts. The first Congress did not so construe it, as the saving clause in the Judiciary Act conclusively shows. And, assuming that the states, in the absence of legislation by Congress, would be without power over the subject-matter, this saving clause, still maintained upon the statute book, is a sufficient grant of power. Jurisdiction in prize cases, as has been shown, springs out of the possession of a prize of war. Civil proceedings in rem, to be mentioned hereafter, are based upon the maritime lien, where possession in the claimant is neither necessary nor usual as is the case with common-law liens. With these exceptions, both resting upon grounds peculiar to the forum of the admiralty, concurrent jurisdiction of the courts of common law in civil cases of maritime origin always has been recognized by this court. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 390, 12 L. ed. 465, 485; The Genesee Chief v. Fitzhugh, 12 How. 443, 458, 13 L. ed. 1058, 1065; The Belfast, 7 Wall. 624, 644, 645, 19 L. ed. 266, 272; New England Mut. M. Ins. Co. v. Dunham, 11 Wall. 1, 32, 20 L. ed. 90, 99; Leon v. Galceran, 11 Wall. 185, 187, 188, 20 L. ed. 74, 75; American S. B. Co. v. Chase, 16 Wall. 522, 533, 21 L. ed. 369, 372; Schoonmaker v. Gilmore, 102 U. S. 118, 26 L. ed. 95; Manchester v. Massachusetts, 139 U. S. 240, 262, 35 L. ed. 159, 166, 11 Sup. Ct. Rep. 559. Nor is the reservation of a common-law remedy limited to such causes of action as were known to the common law at the time of the passage of the Judiciary Act. It includes statutory changes. American S. B. Co. v. Chase, 16 Wall. 522, 533, 534, 21 L. ed. 369, 372, 373; Knapp, S. & Co. v. McCaffrey, 177 U. S. 638, 644, 44 L. ed. 921, 924, 20 Sup. Ct. Rep. 824. Those remedies which were held not to be common-law remedies, within the saving clause, in The Moses Taylor, 4 Wall. 411, 427, 431, 18 L. ed. 397, 400, 402; The Hine v. Trevor, 4 Wall. 555, 571, 572, 18 L. ed. 451, 456; The Belfast, 7 Wall. 624, 644, 19 L. ed. 266, 272; American S. B. Co. v. Chase, 16 Wall, 522, 533, 21 L. ed. 369, 372, and The Glide, 167 U. S. 606, 623, 42 L. ed. 296, 302, 17 Sup. Ct. Rep. 930, provided for imposing a lien on the ship by proceedings in the nature of admiralty process in rem, and it was for this reason only that they were held to trench upon the exclusive admiralty jurisdiction of the courts of the United States. The distinction was noticed in Leon v. Galceran, 11 Wall. 185, 189, 20 L. ed. 74, 75, and again in Knapp, S. & Co. v. McCaffrey, 177 U. S. 638, 642, 44 L. ed. 921, 923, 20 Sup. Ct. Rep. 824. In the latter case it was pointed out (p. 644) that the reservation of a common-law remedy where the common law is competent to give it was not confined to common-law actions, but included remedies without action, such as a distress for rent or for the trespass of cattle; a bailee's remedy by detaining personal property until paid for work done upon it or for expenses incurred in keeping it; the lien of an innkeeper upon the goods of his guests, and that of a carrier upon things carried; the remedy of a nuisance by abatement, and others. The most recent definition of the rule laid down in The Hine v. Trevor and other cases of that class is in Rounds v. Cloverport Foundry & Mach. Co. 237 U. S. 303, 59 L. ed. 966, 35 Sup. Ct. Rep. 596. I have endeavored to show, from a consideration of the phraseology of the constitutional grant of jurisdiction and the act of the first Congress, passed to give effect to it, from the history in the light of which the language of those instruments is to be interpreted, and from the uniform course of decision in this court, from the earliest time until the present, these propositions: first, that the grant of jurisdiction to the admiralty was not intended to be exclusive of the concurrent jurisdiction of the common-law courts theretofore recognized; and, secondly, that neither the Constitution nor the Judiciary Act was intended to prescribe a system of substantive law to govern the several courts in the exercise of their jurisdiction, much less to make the rules of decision, prevalent in any one court, obligatory upon others, exercising a distinct jurisdiction, or binding upon the courts of the states when acting within the bounds of their respective jurisdictions. In fact, while courts of admiralty undoubtedly were expected to administer justice according to the law of nations and the customs of the sea, they were left at liberty to lay hold of common-law principles where these were suitable to their purpose, and even of applicable state statutes, just as courts of common law were at liberty to adopt the rules of maritime law as guides in the proper performance of their duties. This eclectic method had been practised by the courts of each jurisdiction prior to the Constitution, and there is nothing in that instrument to constrain them to abandon it. The decisions of this court show that the courts of admiralty in many matters are bound by local law. The doubt expressed by Mr. Justice Bradley in Butler v. Boston & S. S. S. Co. 130 U. S. 527, 558, 32 L. ed. 1017, 1024, 9 Sup. Ct. Rep. 612, as to whether a state law could have force to create a liability in a maritime case at all, was laid aside in The Corsair (Barton v. Brown) 145 U. S. 335, 36 L. ed. 727, 12 Sup. Ct. Rep. 949, and definitely set at rest in The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 404, 52 L. ed. 264, 269, 28 Sup. Ct. Rep. 133. The fact is that, long before Butler v. Boston & S. S. S. Co., it had been recognized that state laws might not merely create a liability in a maritime case, but impose a duty upon the admiralty courts of the United States to enforce such liability. Thus, while it was recognized that by the general maritime law a foreign ship, or a ship in a port of a state to which she did not belong, was subject to a suit in rem in the admiralty for repairs or necessaries, the case of a ship in a port of her home state was governed by the municipal law of the state, and no lien for repairs or necessaries would be implied unless recognized by that law. The General Smith (1819) 4 Wheat. 438, 443, 609, 611; The Lottawanna (Rodd v. Heartt) 21 Wall. 558, 571, 578, 22 L. ed. 654, 660, 663. Conversely, it was held in the case of Peyroux v. Howard (1833) 7 Pet. 324, 341, 8 L. ed. 700, 706, that a libel in rem in the admiralty might be maintained against a vessel for repairs done in her home port where a local statute gave a lien in such a case. To the same effect, The J. E. Rumbell, 148 U. S. 1, 12, 37 L. ed. 345, 347, 13 Sup. Ct. Rep. 498. As elsewhere pointed out herein, where a state statute conferred a lien operative strictly in rem, it was uniformly held not enforceable in the state courts, but only because it trenched upon the peculiar jurisdiction of the admiralty, and therefore was not a 'common-law remedy' within the saving clause of the Judiciary Act of 1789. The Moses Taylor, 4 Wall. 411, 427, 431, 18 L. ed. 397, 400, 402; The Hine v. Trevor, 4 Wall. 555, 571, 572, 18 L. ed. 451, 456; The Belfast, 7 Wall. 624, 644, 19 L. ed. 266, 272; American S. B. Co. v. Chase, 16 Wall. 522, 533, 21 L. ed. 369, 372; The Glide, 167 U. S. 606, 623, 42 L. ed. 296, 302, 17 Sup. Ct. Rep. 930. Under these decisions, and others to the same effect, the substance of the matter is that a state may, by statute, create a right to a lien upon a domestic vessel, in the nature of a maritime lien, which may be enforced in admiralty in the courts of the United States; but a state may not confer upon its own courts jurisdiction to enforce such a lien, because the Federal jurisdiction in admiralty is exclusive. The J. E. Rumbell, 148 U. S. 1, 12, 37 L. ed. 345, 347, 13 Sup. Ct. Rep. 498, and cases cited. But a lien imposed not upon the rem, but upon defendant's interest in the res, may be made enforceable in the state courts. Rounds v. Cloverport Foundry & Mach. Co. 237 U. S. 303, 307, 59 L. ed. 966, 968, 35 Sup. Ct. Rep. 596, and cases cited. The Roanoke, 189 U. S. 185, 194, 198, 47 L. ed. 770, 772, 774, 23 Sup. Ct. Rep. 491, while approving The General Smith, Peyroux v. Howard, The Lottawanna, and The J. E. Rumbell, supra, gave a negative answer to the very different question whether a state could, without encroaching upon the Federal jurisdiction, create a lien against foreign vessels to be enforced in the courts of the United States. In the present case there is no question of lien, and, I repeat, no question concerning the jurisdiction of the state court; the crucial inquiry is, to what law was it bound to conform in rendering its decision? Or, rather, the question is the narrower one: Do the Constitution and laws of the United States prevent a state court of common law from applying the state statutes in an action in personam arising upon navigable water within the state, there being no act of Congress applicable to the controversy? I confess that until this case and kindred cases submitted at the same time were brought here, I never had supposed that it was open to the least doubt that the reservation to suitors of the right of a common-law remedy had the effect of reserving at the same time the right to have their common-law actions determined according to the rules of the common law, or state statutes modifying those rules. This court repeatedly has so declared, at the same time recognizing fully that the point involves the question of state power. In United States v. Bevans, 3 Wheat. 336, 388, 4 L. ed. 404, 416, the court, by Mr. Chief Justice Marshall, said: 'Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise? This is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction. It is obviously designed for other purposes. . . . In describing the judicial power, the framers of our Constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction. It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction is in the government of the Union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of the sovereignty not yet given away.' In American S. B. Co. v. Chase, 16 Wall. 522, 533, 21 L. ed. 369, 372, the court, by Mr. Justice Clifford, said (p. 534): 'State statutes, if applicable to the case, constitute the rules of decision in common-law actions, in the circuit courts as well as in the state courts.' In Atlee v. Northwestern Union Packet Co. 21 Wall. 389, 395, 396, 22 L. ed. 619, 621, the court, by Mr. Justice Miller, said: 'The plaintiff has elected to bring his suit in an admiralty court, which has jurisdiction of the case, notwithstanding the concurrent right to sue at law. In this court the course of proceeding is in many respects different and the rules of decision are different. . . . An important difference as regards this case is the rule for estimating the damages. In the common-law court the defendant must pay all the damages or none. If there has been on the part of plaintiffs such carelessness or want of skill as the common law would esteem to be contributory negligence, they can recover nothing. By the rule of the admiralty court, where there has been such contributory negligence, or, in other words, when both have been in fault, the entire damages resulting from the collision must be equally divided between the parties. . . . Each court has its own set of rules for determining these questions, which may be in some respects the same, but in others vary materially.' And see The Max Morris, 137 U. S. 1, 10, 34 L. ed. 586, 588; Belden v. Chase, 150 U. S. 674, 691, 37 L. ed. 1218, 1224, 14 Sup. Ct. Rep. 269; Benedict, Admiralty, § 201. In the prevailing opinion, great stress is laid upon certain expressions quoted from The Lottawanna (Rodd v. Heartt) 21 Wall. 558, 574, 22 L. ed. 654, 661; but it seems to me they have been misunderstood, because read without regard to context and subjectmatter. That was an admiralty appeal, and involved the question whether, by the general maritime law, as accepted in the United States, there was an implied lien for necessaries furnished to a vessel in her home port, where no such lien was recognized by the municipal law of the state. In the course of the discussion, the court, by Mr. Justice Bradley, said: 'That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it. It does not declare whether it was intended to embrace the entire maritime law as expounded in the treatises, or only the limited and restricted system which was received in England, or lastly, such modification of both of these as was accepted and recognized as law in this country. Nor does the Constitution attempt to draw the boundary line between maritime law and local law; nor does it lay down any criterion for ascertaining that boundary. It assumes that the meaning of the phrase 'admiralty and maritime jurisdiction' is well understood. It treats this matter as it does the cognate ones of common law and equity, when it speaks of 'cases in law and equity,' or of 'suits at common law,'without defining those terms, assuming them to be known and understood.' In this language there is the clearest recognition that the Constitution, in establishing and distributing the judicial power, did not intend to define substantive law, or to make the rules of decision in one jurisdiction binding proprio vigore in tribunals exercising another jurisdiction. The courts of common law were to administer justice according to the common law, the courts of equity according to the principles of equity, and the courts of admiralty and maritime jurisdiction according to the maritime law. The expression on page 575 respecting the uniform operation of the maritime law was predicated only of the operation of that law as administered in the courts of admiralty, for it is not to be believed that there was any purpose to overrule Atlee v. Northwestern Union Packet Co. 21 Wall. 389, 395, 22 L. ed. 619, 621, decided at the same term and only about two months before The Lottawanna by a unanimous court, including Mr. Justice Bradley himself, in which it was held that where there was concurrent jurisdiction in the courts of common law and the courts of admiralty, each court was at liberty to adopt its own rules of decision. Moreover, the principal question at issue in The Lottawanna was whether the case of The General Smith, 4 Wheat. 438, 4 L. ed. 609, should be overruled, in which it had been held that, in the absence of state legislation imposing the lien, a ship was not subject to a libel in rem in the admiralty for repairs furnished in her home port. The general expressions referred to relate to that state of the law,—the absence of state legislation, as well as of legislation by Congress,—and upon this the decision in The General Smith was upheld (p. 578). But in proceeding to discuss the subordinate question whether there was a lien under the state statute, it was held (p. 580): 'It seems to be settled in our jurisprudence that so long as Congress does not interpose to regulate the subject, the rights of materialmen furnishing necessaries to a vessel in her home port may be regulated in each state by state legislation.' And again (p. 581): 'Whatever may have been the origin of the practice, and whether or not it was based on the soundest principles, it became firmly settled, and it is now too late to question its validity. . . . It would undoubtedly be far more satisfactory to have a uniform law regulating such liens, but until such a law be adopted (supposing Congress to have the power) the authority of the states to legislate on the subject seems to be conceded by the uniform course of decisions.' Again, in Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212, which, like The Lottawanna, was a proceeding in admiralty, the court, in quoting the declarations contained in that case respecting the general operation of the maritime law throughout the navigable waters of the United States, was dealing only with its application in the courts of admiralty. This is plain from what was said as a preface to the discussion (p. 557): 'In examining the first question, that is, whether the local law of New York must prevail, though in conflict with the maritime law, it must be borne in mind that the issue is not—as was the case in Detroit v. Osborne (1890) 135 U. S. 492, 34 L. ed. 260, 10 Sup. Ct. Rep. 1012,—whether the local law governs as to a controversy arising in the courts of common law or of equity of the United States, but does the local law, if in conflict with the maritime law, control a court of admiralty of the United States in the administration of maritime rights and duties, although judicial power with respect to such subjects has been expressly conferred by the Constitution (art. 3, § 2) upon the courts of the United States.' In the argument of the present case and companion cases, emphasis was laid upon the importance of uniformity in applying and enforcing the rules of admiralty and maritime law, because of their effect upon interstate and foreign commerce. This, in my judgment, is a matter to be determined by Congress. Concurrent jurisdiction and optional remedies in courts governed by different systems of law were familiar to the framers of the Constitution, as they were to English-speaking peoples generally. The judicial clause itself plainly contemplated a jurisdiction concurrent with that of the state courts in other controversies. In such a case, the option of choosing the jurisdiction is given primarily for the benefit of suitors, not of defendants. For extending it to defendants, removal proceedings are the appropriate means. Certainly there is no greater need for uniformity of adjudication in cases such as the present than in cases arising on land and affecting the liability of interstate carriers to their employees. And, although the Constitution contains an express grant to Congress of the power to regulate interstate and foreign commerce, nevertheless, until Congress had acted, the responsibility of interstate carriers to their employees for injuries arising in interstate commerce was controlled by the laws of the states. This was because the subject was within the police power, and the divergent exercise of that power by the states did not regulate, but only incidentally affected, commerce among the states. Sherlock v. Alling, 93 U. S. 99, 103, 23 L. ed. 819, 820; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 54, 56 L. ed. 327, 347, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. It required an act of Congress (Act of April 22, 1908, 35 Stat. at L. 65, chap. 149, Comp. Stat. 1916, § 8657) to impose a uniform measure of responsibility upon the carriers in such cases. So, it required an act of Congress (the so-called Carmack Amendment to the Hepburn Act of June 29, 1906, 34 Stat. at L. 584, 595, chap. 3591, Comp. Stat, §§ 8563, 8604a, 8604aa) to impose a uniform rule of liability upon rail carriers for losses of merchandise carried in interstate commerce. Adams Exp. Co. v. Croninger, 226 U. S. 491, 504, 57 L. ed. 314, 319, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148. In a great number and variety of cases state laws and policies incidentally affecting interstate carriers in their commercial operations have been sustained by this court, in the absence of conflicting legislation by Congress. Among them are: Laws requiring locomotive engineers to be examined and licensed by the state authorities (Smith v. Alabama, 124 U. S. 465, 482, 31 L. ed. 508, 513, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564); requiring such engineers to be examined for defective eyesight (Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 100, 32 L. ed. 352, 354, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28); requiring telegraph companies to receive despatches and transmit and delivery them diligently (Western U. Teleg. Co. v. James, 162 U. S. 650, 40 L. ed. 1105, 16 Sup. Ct. Rep. 934); forbidding the running of freight trains on Sunday (Hennington v. Georgia, 163 U. S. 299, 304, 308, etc. 41 L. ed. 166, 169, 170, 16 Sup. Ct. Rep. 1086); regulating the heating of passenger cars (New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 41 L. ed. 853, 17 Sup. Ct. Rep. 418); prohibiting a railroad company from obtaining by contract an exemption from the liability which would have existed had no contract been made (Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 136, 137, 42 L. ed. 688, 691, 692, 18 Sup. Ct. Rep. 289); a like result arising from rules of law enforced in the state courts in the absence of statute (Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 488, 491, 48 L. ed. 268, 272, 273, 24 Sup. Ct. Rep. 132); statutes prohibiting the transportation of diseased cattle in interstate commerce (Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 630, 635, 42 L. ed. 878, 884, 885, 18 Sup. Ct. Rep. 488; Reid v. Colorado, 187 U. S. 137, 147, 151, 47 L. ed. 108, 114, 115, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506); statutes requiring the prompt settlement of claims for loss or damage to freight, applied incidentally to interstate commerce (Atlantic Coast Line R. Co. v. Mazursky, 216 U. S. 122, 54 L. ed. 411, 30 Sup. Ct. Rep. 378); even since the passage of the Carmack Amendment (Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412, 417, 420, 58 L. ed. 1377, 1381, 1382, L.R.A.1915E, 942, 34 Sup. Ct. Rep. 790); statutes regulating the character of headlights used on locomotives employed in interstate commerce (Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 58 L. ed. 1312, 34 Sup. Ct. Rep. 829; Vandalia R. Co. v. Public Service Commission, 242 U. S. 255, 61 L. ed. 276, 37 Sup. Ct. Rep. 93). All these cases affected the responsibility of interstate carriers. Until now, Congress has passed no act concerning their responsibility for personal injuries sustained by passengers or strangers, or for deaths resulting from such injuries, so that these matters still remain subject to the regulation of the several states. We have held recently that even the anti-pass provision of the Hepburn Act (34 Stat. at L. 584, 585, chap. 3591, § 1, Comp. Stat. 1916, § 8563) does not deprive a party who accepts gratuitous carriage in interstate commerce with the consent of the carrier, in actual but unintentional violation of the prohibition of the act, of the benefit and protection of the law of the state imposing upon the carrier a duty to care for his safety (Southern P. Co. v. Schuyler, 227 U. S. 601, 612, 57 L. ed. 662, 669, 43 L.R.A.(N.S.) 901, 33 Sup. Ct. Rep. 277). In the very realm of navigation, the authority of the states to establish regulations effective within their own borders, in the absence of exclusive legislation by Congress, has been recognized from the beginning of our government under the Constitution. As to pilotage regulations, it was recognized by the first Congress (Act of August 7, 1789, chap. 9, § 4, 1 Stat. at L. 53, 54, Rev. Stat. § 4235, Comp. Stat. 1916, § 7981), and this court, in many decisions, has sustained local regulations of that character (Cooley v. Port Wardens, 12 How. 299, 320, 13 L. ed. 996, 1005; Pacific Mail S. S. Co. v. Joliffe, 2 Wall. 450, 459, 17 L. ed. 805, 807; Ex parte McNiel, 13 Wall. 236, 241, 20 L. ed. 624, 626; Wilson v. McNamee, 102 U. S. 572, 26 L. ed. 234; Olsen v. Smith, 195 U. S. 332, 341, 49 L. ed. 224, 229, 25 Sup. Ct. Rep. 52; Anderson v. Pacific Coast S. S. Co. 225 U. S. 187, 195, 56 L. ed. 1047, 1051, 32 Sup. Ct. Rep. 625). It is settled that a state, in the absence of conflicting legislation by Congress, may construct dams and bridges across navigable streams within its limits, notwithstanding an interference with accustomed navigation may result. Wilson v. Black Bird Creek Marsh Co. 2 Pet. 245, 252, 7 L. ed. 412, 414; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 683, 27 L. ed. 442, 445, 2 Sup. Ct. Rep. 185; Cardwell v. American River Bridge Co. 113 U. S. 205, 208, 28 L. ed. 959, 960, 5 Sup. Ct. Rep. 423; Hamilton v. Vicksburg, S. & P. R. Co. 119 U. S. 280, 30 L. ed. 393, 7 Sup. Ct. Rep. 206; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8, 31 L. ed. 629, 631, 8 Sup. Ct. Rep. 811; Lake Shore & M. S. R. Co. v. Ohio, 165 U. S. 365, 41 L. ed. 747, 17 Sup. Ct. Rep. 357; Manigault v. Springs, 199 U. S. 473, 478, 50 L. ed. 274, 277, 26 Sup. Ct. Rep. 127. So, as to harbor improvements (Mobile County v. Kimball, 102 U. S. 691, 697, 26 L. ed. 238, 239); improvements and obstructions to navigation (Huse v. Glover, 119 U. S. 543, 548, 30 L. ed. 487, 490, 7 Sup. Ct. Rep. 313; Leovy v. United States, 177 U. S. 621, 625, 44 L. ed. 914, 916, 20 Sup. Ct. Rep. 797; Cummings v. Chicago, 188 U. S. 410, 427, 47 L. ed. 525, 530, 23 Sup. Ct. Rep. 472); inspection and quarantine laws (Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71); wharfage charges (Keokuk Northern Line Packet Co. v. Keokuk, 95 U. S. 80, 24 L. ed. 377; Cincinnati, P. B. S. & P. Packet Co. v. Catlettsburg, 105 U. S. 559, 563, 26 L. ed. 1169, 1171; Parkersburg & O. River Transp. Co. v. Parkersburg, 107 U. S. 691, 702, 27 L. ed. 584, 588, 2 Sup. Ct. Rep. 732; Ouachita & M. River Packet Co. v. Aiken, 121 U. S. 444, 447, 30 L. ed. 976, 977, 1 Inters. Com. Rep. 379, 7 Sup. Ct. Rep. 907); tolls for the use of an improved waterway (Sands v. Manistee River Improv. Co. 123 U. S. 288, 295, 31 L. ed. 149, 151, 8 Sup. Ct. Rep. 113). So, of provisions fixing the tolls for transportation upon an interstate ferry (Port Richmond & B. P. Ferry Co. v. Hudson County, 234 U. S. 317, 331, 58 L. ed. 1330, 1336, 34 Sup. Ct. Rep. 821), or upon vessels plying between two ports located within the same state (wilmington transp. co. v. Railroad Commission, 236 U. S. 151, 156, 59 L. ed. 508, 517, P.U.R.1915A, 845, 35 Sup. Ct. Rep. 276). In each of these cases, except the last, which related to intrastate transport, the state regulation had an incidental effect upon the very conduct of navigation in interstate or foreign commerce. If in such cases the states possess the power of regulation in the absence of inconsistent action by Congress, much more clearly do they possess that power where Congress is silent, with respect to a liability which arises but casually, through the accidental injury or death of an employee engaged in a maritime occupation. Indeed, with respect to injuries that result in death, it already is settled that although the general maritime law, like the common law, afforded no civil remedy for death by wrongful act (The Harrisburg, 119 U. S. 199, 30 L. ed. 358, 7 Sup. Ct. Rep. 140; The Alaska, 130 U. S. 201, 209, 32 L. ed. 923, 925, 9 Sup. Ct. Rep. 461), yet a right of action created by statute is enforceable in a state court although the tort was committed upon navigable water (American S. B. Co. v. Chase, 16 Wall. 522, 533, 21 L. ed. 369, 372; Sherlock v. Alling, 93 U. S. 99, 104, 23 L. ed. 819, 820), and the liability arising out of a state statute in such a case will be recognized and enforced in the admiralty (The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 52 L. ed. 264, 28 Sup. Ct. Rep. 133), although not by proceeding in rem unless the statute expressly creates a lien (The Corsair (Barton v. Brown) 145 U. S. 335, 347, 36 L. ed. 727, 731, 12 Sup. Ct. Rep. 949). In Sherlock v. Alling, supra, which was an action in a state court and based upon a state statute to recover damages for a death by wrongful act occurring in interstate navigation, it was contended that the statute could not be applied to cases where the injury was caused by a marine tort, without interfering with the exclusive regulation of commerce vested in Congress. The court, after declaring that any regulation by Congress, or the liability for its infringement, would be exclusive of state authority, proceeded to say, by Mr. Justice Field (93 U. S. 104): 'But with reference to a great variety of matters touching the rights and liabilities of persons engaged in commerce, either as owners or navigators of vessels, the laws of Congress are silent, and the laws of the state govern. The rules for the acquisition of property by persons engaged in navigation, and for its transfer and descent, are, with some exceptions, those prescribed by the state to which the vessels belong; and it may be said, generally, that the legislation of a state, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit. In our judgment, the statute of Indiana falls under this class. Until Congress, therefore, makes some regulation touching the liability of parties for marine torts resulting in the death of the persons injured, we are of opinion that the statute of Indiana applies,' etc. I deem The Hamilton, supra, to be a controlling authority upon the question now presented. It was there held, not only that the constitutional grant of admiralty jurisdiction, followed and construed by the Judiciary Act of 1789, leaves open the common-law jurisdiction of the state courts over torts committed at sea, but also that it leaves the states at liberty to change the law respecting such torts by legislation, as by a statute creating a liability for death by wrongful act, which was the particular legislation there in question. To what extent uniformity of decision should result from the grant of jurisdiction to the courts of the United States concurrent with that of the state courts is a subject that repeatedly has been under consideration in this court, but it never has been held that the jurisdictional grant required state courts to conform their decisions to those of the United States courts. The doctrine clearly deducible from the cases is that, in matters of commercial law and general jurisprudence, not subject to the authority of Congress, or where Congress has not exercised its authority, and in the absence of state legislation, the Federal courts will exercise an independent judgment and reach a conclusion upon considerations of right and justice generally applicable, the Federal jurisdiction having been established for the very purpose of avoiding the influence of local opinion; but that where the state has legislated, its will, thus declared, is binding, even upon the Federal courts, if it be not inconsistent with the expressed will of Congress respecting a matter that is within its constitutional power. The doctrine concedes as much independence to the courts of the states as it reserves for the courts of the Union. Burgess v. Seligman, 107 U. S. 20, 33, 34, 27 L. ed. 359, 365, 2 Sup. Ct. Rep. 10; East Alabama R. Co. v. Doe, 114 U. S. 340, 353, 29 L. ed. 136, 140, 5 Sup. Ct. Rep. 869; Gibson v. Lyon, 115 U. S. 439, 446, 29 L. ed. 440, 442, 6 Sup. Ct. Rep. 129; Anderson v. Santa Anna, 116 U. S. 356, 362, 29 L. ed. 633, 635, 6 Sup. Ct. Rep. 413; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 372, 37 L. ed. 772, 775, 13 Sup. Ct. Rep. 914; Folsom v. Township 96, 159 U. S. 611, 625, 40 L. ed. 278, 283, 16 Sup. Ct. Rep. 174; Stanly County v. Coler, 190 U. S. 437, 444, 47 L. ed. 1126, 1131, 23 Sup. Ct. Rep. 811; Kuhn v. Fairmont Coal Co. 215 U. S. 349, 357, 360, 54 L. ed. 228, 233, 234, 30 Sup. Ct. Rep. 140. In Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 372, 37 L. ed. 772, 775, 13 Sup. Ct. Rep. 914, the court had under review the judgment of a circuit court of the United States in an action by a locomotive fireman injured through negligence of the engineer. The cause of action arose in the state of Ohio, and the question presented was whether the engineer and the fireman were fellow servants. Under the decisions of the Ohio courts they were, but this court held that, as there was no state statute, the question should not be treated as a question of local law, to be settled by an examination merely of the decisions of the state court of last resort, but should be determined upon general principles; the courts of the United States being under an obligation to exercise an independent judgment. The court, by Mr. Justice Brewer, said (149 U. S. 378): 'There is no question as to the power of the states to legislate and change the rules of the common law in this respect, as in others; but, in the absence of such legislation, the question is one determinable only by the general principles of that law. Further than that, it is a question in which the nation as a whole is interested. It enters into the commerce of the country. Commerce between the states is a matter of national regulation, and to establish it as such was one of the principal causes which led to the adoption of our Constitution.' In other words, the general effect of the question upon interstate commerce rendered it one of the class that called for the application of general principles; nevertheless, state legislation would be controlling—in in the absence of valid legislation by Congress, of course. In Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 136, 137, 42 L. ed. 688, 691, 692, 18 Sup. Ct. Rep. 289, the doctrine was concisely stated by Mr. Justice Gray, speaking for the court, as follows (169 U. S. 136): 'The question of the right of a railroad corporation to contract for exemption from liability for its own negligence is, indeed, like other questions affecting its liability as a common carrier of goods or passengers, one of those questions not of merely local law, but of commercial law or general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the state in which the cause of action arises. But the law to be applied is none the less the law of the state, and may be changed by its legislature, except so far as restrained by the Constitution of the state or by the Constitution or laws of the United States.' I freely concede the authority of Congress to modify the rules of maritime law so far as they are administered in the Federal courts, and to make them binding upon the courts of the states so far as they affect interstate or international relations, or regulate 'commerce with foreign nations, and among the several states, and with the Indian tribes.' What I contend is that the Constitution does not, proprio vigore, impose the maritime law upon the states except to the extent that the admiralty jurisdiction was exclusive of the courts of common law before the Constitution; that is to say, in the prize jurisdiction, and the peculiar maritime process in rem; and that as to civil actions in personam having a maritime origin, the courts of the states are left free, except as Congress, by legislation passed within its legitimate sphere of action, may control them; and that Congress, so far from enacting legislation of this character, has from the beginning left the state courts at liberty to apply their own systems of law in those cases where, prior to the Constitution, they had concurrent jurisdiction with the admiralty, for the saving clause in the Judiciary Act necessarily has this effect. Surely it cannot be that the mere grant of judicial power in admiralty cases, with whatever general authority over the subject-matter can be raised by implication, can, in the absence of legislation, have a greater effect in limiting the legislative powers of the states than that which resulted from the express grant to Congress of an authority to regulate interstate commerce, the limited effect of which, in the absence of legislation by Congress, we already have seen. The prevailing opinion properly holds that, under the circumstances of the case at bar, although plaintiff in error was engaged in interstate commerce, and the deceased met his death while employed in such commerce, the provisions of the Federal Employers' Liability Act (April 22, 1908, 35 Stat. at L. 65, chap. 149, Comp. Stat. 1916, § 8657) do not apply, because they cover only railroad operations and work connected therewith, whereas the deceased was employed upon an ocean-going ship. In effect it holds also that, in the absence of applicable legislation by Congress, the express grant of authority to regulate such commerce, as contained in the Constitution, does not exclude the operation of the state law. It seems to me a curious inconsistency to hold, at the same time, that the rules of the maritime law exclude the operation of a state statute without action by Congress, although the Constitution contains no express grant of authority to establish rules of maritime law, and the authority must be implied from the mere constitutional grant of judicial power over the subject-matter; and most remarkable that this result is reached in the face of the fact that the judicial power in cases of admiralty jurisdiction has been put into effect by Congress subject to an express reservation of the previous concurrent jurisdiction of the courts of law over actions of this character. This, besides ignoring the reservation, gives a greater potency to an implied power than to a power expressly conferred. The effect of the present decision cannot logically be confined to cases that arise in interstate or foreign commerce. It seems to be thought that the admiralty jurisdiction of the United States has limits coextensive with the authority of Congress to regulate commerce. But this is not true. The civil jurisdiction in admiralty in cases ex contractu is dependent upon the subjectmatter; in cases ex delicto it is dependent upon locality. In cases of the latter class, if the cause of action arise upon navigable waters of the United States, even though it be upon a vessel engaged in commerce wholly intrastate, or upon one not engaged in commerce at all, or (probably) not upon any vessel, the maritime courts have jurisdiction. The Genesee Chief v. Fitzhugh, 12 How. 443, 452, 13 L. ed. 1058, 1062; The Commerce (Commercial Transp. Co. v. Fitzhugh) 1 Black, 574, 578, 579, 17 L. ed. 107, 109; The Belfast, 7 Wall. 624, 636, 638, 640, 19 L. ed. 266, 269-271; Ex parte Boyer, 109 U. S. 629, 632, 27 L. ed. 1056, 1057, 3 Sup. Ct. Rep. 434; Re Garnett, 141 U. S. 1, 15, 17, 35 L. ed. 631, 634, 635, 11 Sup. Ct. Rep. 840. It results that if the constitutional grant of judicial power to the United States in cases of admiralty and maritime jurisdiction is held by inference to make the rules of decision that prevail in the courts of admiralty binding proprio vigore upon state courts exercising a concurrent jurisdiction in cases of maritime origin, the effect will be to deprive the several states of their police power over navigable waters lying wholly within their respective limits, and of their authority to regulate their intrastate commerce so far as it is carried upon navigable waters. The following additional consideration is entitled to great weight: The same Judiciary Act which, in its 9th section, conferred upon the district courts of the United States original cognizance of civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, in its 25th section allowed a writ of error from this court to review the final judgment or decree of a state court of last resort resulting from a decision overruling any special claim of right, privilege, or exemption based upon the construction of any clause of the Constitution or statutes of the United States. By later legislation the review was broadened (Act of February 5, 1867, chap. 28, § 2, 14 Stat. at L. 385, 386, § 709, Rev. Stat., § 237, Judicial Code, 36 Stat. at L. 1156, chap. 231, Comp. Stat. 1916, § 1214), and by recent legislation the writ of certiorari has been substituted for the writ of error in many cases (Act of September 6, 1916, chap. 448, 39 Stat. at L. 726, Comp. Stat. 1916, § 1207). But, at all times, the right to review in this court the decisions of the state courts upon questions of Federal law has existed, so that if, by the true construction of art. 3, § 2, of the Constitution, or of § 9 of the Judiciary Act of 1789, it had been the right of parties suing or sued in state courts upon causes of action of a maritime nature to insist that their cases should be determined according to the rules of decision found in the law maritime, this right or immunity might have been asserted as a Federal right, and its denial made the ground of a review of the resulting judgment, under a writ of error (or, now, a writ of certiorari) from this court to the state court of last resort. Yet, until the present case, and others submitted at the same time, the reported decisions of this court show not a trace of any such question raised. I can conceive of no stronger evidence to prove that from the foundation of the government until the present time it has been the opinion of the bar and of the judiciary, in the state courts as well as in the courts of the United States, that it was not the right of parties suing or sued in state courts of law or equity upon causes of action arising out of maritime affairs, to have them decided according to the principles that would have controlled the decision had the suits been brought in the admiralty courts. There is no doubt that, throughout the entire life of the nation under the Constitution, state courts not only have exercised concurrent jurisdiction with the courts of admiralty in actions ex contractu arising out of maritime transactions, and in actions ex delicto arising upon the navigable waters, but that, in exercising such jurisdiction, they have, without challenge until now, adopted as rules of decision their local laws and statutes, recognizing no obligation of a Federal nature to apply the law maritime. State courts of last resort, in several recent cases, have had occasion to consider the precise contention now made by plaintiff in error, and upon full consideration have rejected it. Lindstrom v. Mutual S. S. Co. 132 Minn. 328, L.R.A.1916D, 935, 156 N. W. 669; North Pacific S. S. Co. v. Industrial Acci. Commission, ——Cal. ——, 163 Pac. 199; Kennerson v. Thames Towboat Co. 89 Conn. 367, 373, L.R.A.1916A, 436, 94 Atl. 372. See also Walker v. Clyde S. S. Co. 215 N. Y. 529, 531, 109 N. E. 604, Ann. Cas. 1916B, 87; Jensen v. Southern P. Co. 215 N. Y. 514, L.R.A.1916A, 403, 109 N. E. 600, Ann. Cas. 1916B, 276, 9 N. C. C. A. 286 (this case). I have found no case to the contrary except a decision by the United States district court for the northern district of Ohio in Schuede v. Zenith S. S. Co. 216 Fed. 566, now under consideration by this court. The reasoning is unsatisfactory, and it was repudiated in Keithley v. North Pacific S. S. Co. 232 Fed. 255, 259. I may remark, in closing, that there is no conflict between the New York Workmen's Compensation Act and the acts of Congress for limiting the liability of shipowners (Rev. Stat. §§ 4283-4285, Comp. Stat. 1916, §§ 8021-8023; Act of June 26, 1884, chap. 121, § 18, 23 Stat. at L. 53, 57, Comp. Stat. 1916, §§ 7707, 8028). So long as the aggregate liabilities of the owner, including that under the New York law, do not amount to as much as the interest of the owner in the vessel and freight pending, the act of Congress does not come into play. Where it does apply, it reduces all liabilities proportionally, under whatever law arising; the liability under the New York law along with the others. Butler v. Boston & S. S. S. Co. 130 U. S. 527, 552, 558, 32 L. ed. 1017, 1022, 1024, 9 Sup. Ct. Rep. 612; The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 406, 52 L. ed. 264, 270, 28 Sup. Ct. Rep. 133; Richardson v. Harmon, 222 U. S. 96, 104, 105, 56 L. ed. 110, 113, 114, 32 Sup. Ct. Rep. 27. Mr. Justice Brandeis and Mr. Justice Clarke concur in the dissent, both upon the grounds stated by Mr. Justice Holmes and upon those stated by Mr. Justice Pitney.

244.US.456

The foundation of jurisdiction is physical power. Appearance in answer to a citation issued upon a libel in personam does not empower the court to introduce new claims of new claimants into the suit without service on the defendant and against his will. After defendant had appeared in a suit against it for causing the death of one person, the court allowed to be filed an amended libel introducing 373 new libellants, each alleging a distinct cause of action based on as many other deaths due to the same accident. Defendant excepted to the amended libel upon the ground that it was contrary to law (1) because it joined 373 new libellants who had separate causes of action, and (2) because it could not "in law, in this case, be called upon to answer the said amended libel as to 373 additional libellants." Held that this was not a general appearance and that want of service upon the defendant was sufficiently set up by the second ground of exception. Qua're: Whether the principles of waiver and appearance are not modified in a case where the defendant is already in court and the objection to jurisdiction relates to the introduction of new complainants? When objections to the jurisdiction have been overruled, the defendant does not waive them by pleading to the merits. Prohibition granted.

The suit in which this writ of prohibition is sought was originally a libel in personam against the petitioner, an Indiana corporation, and others, for causing the death of one Dawson through the capsizing of the steamer Eastland in the Chicago river. The libel was filed on August 21, 1915. A citation was served upon an agent of the petitioner within the district, and the petitioner filed exceptions to the libel. On July 24, 1916, leave was granted 'to certain parties' to intervene as libellants, and a citation to respondents not served was ordered, returnable the first Monday in September. At this time the petitioner was not subject to service in the district and was not served with process. The 'certain parties' mentioned in the order seem to have been 373 other libellants, each alleging a distinct cause of action for death due to the same accident. The petitioner excepted that the amended libel was contrary to law because it joined 373 other libellants who had separate causes of action, and also because the petitioner could not in law be called on to answer the amended libel as to 373 additional libellants. The exceptions were overruled and the petitioner directed to answer in twenty days from the date of the order, September 18, 1916. Thereupon the petitioner, not waiving its previous exceptions, on October 7 again excepted that the court had not jurisdiction over it in respect of the additional libellants, and that the libel did not state a cause of action against it. On October 25 this petition was filed. The foundation of jurisdiction is physical power. If a defendant's body were in custody by arrest, or a vessel were held by proceedings in rem, it well might be that new claims would be entertained against the person or against the ship, in addition to those upon which the arrest was made. The Oregon, 158 U. S. 186, 210, 39 L. ed. 943, 953, 15 Sup. Ct. Rep. 804. But appearance in answer to a citation does not bring a defendant under the general physical power of the court. He is not supposed, even by fiction, to be in prison. Conventional effect is given to a decree after an appearance because when power once has been manifested, it is to the advantage of all not to insist upon its being maintained to the end. Michigan Trust Co. v. Ferry, 228 U. S. 346, 353, 57 L. ed. 867, 874, 33 Sup. Ct. Rep. 550. That, however, is the limit of the court's authority. Not having any power in fact over the defendant unless it can seize him again, it cannot introduce new claims of new claimants into an existing suit simply because the defendant has appeared in that suit. The new claimants are strangers and must begin their action by service just as if no one had sued the defendant before. The Oregon, 158 U. S. 186, 205, 210, 39 L. ed. 943, 952, 953, 15 Sup. Ct. Rep. 804. We may repeat with more force concerning defendants what was said alio intuitu in a New Jersey case cited in Reynolds v. Stockton, 140 U. S. 254, 268, 35 L. ed. 464, 468, 11 Sup. Ct. Rep. 773. 'Persons by becoming suitors do not place themselves for all purposes under the control of the court.' The only question is whether the petitioner lost its rights by its mode of asserting them; the argument for the respondent being that the exceptions above mentioned amounted to an appearance and plea to the merits, and that thus the absence of service was cured. But it is to be remembered that the motion for leave to intervene was a motion in the cause in which petitioner already had appeared. We should not be astute to treat recognition that it was in court as the case stood before the motion, to let in upon it an avalanche of new claims, as waiving what it was the prime and only purpose of the exceptions to prevent. The language of the first exceptions was not as explicit as it might have been, but the absence of service seems to us sufficiently covered by the words: 'Because the abovenamed respondent cannot in law, in this case, be called upon to answer the said amended libel as to 373 additional libellants.' The second exception, still insisting on the petitioner's denial that the court had jurisdiction of it in respect of the new claims set up, pleaded further, upon the rule to answer, that the amended libel did not state a cause of action. But if the principles of waiver and appearance by pleading to the merits are not modified in a case where the defendant already is in court, it is true at least that when objections to the jurisdiction have been overruled the defendant does not lose its rights by pleading to the merits. Harkness v. Hyde, 98 U. S. 476, 26 L. ed. 237. The District Court attempted to exceed its jurisdiction and the writ of prohibition should be granted. Rule absolute.

245.US.54

A person domiciled in Kentucky carried on a business in Missouri and deposited in bank in the latter State moneys derived from the business, but not used in it, and belonging absolutely to him. The resulting credits-ordinary bank accounts not represented by certificates and subject to his order only-were included by Kentucky authorities in assessing his taxes in that State. Held, that the tax, whether considered as a tax on property or as a tax on the individual measured by property, was within the power of the State imposing it. A state court's decision does not deprive the complaining party of the equal protection of the laws merely because it departs from decisions made by the court in earlier cases. 168 Kentucky, 71; 171 Kentucky, 509; 172 Kentucky, 451, affirmed.

This is a suit brought by the City of Louisville, Kentucky, to recover annual taxes for the years 1907 and 1908 in respect of personal property omitted from the original assessments to the owner L. P. Ewald in his lifetime. The facts as simplified for the purposes of argument here are that Ewald was domiciled in Louisville but continued to carry on a business in St. Louis, Missouri, where he formerly had lived. Deposits coming in part if not wholly from this business were made and kept in St. Louis banks subject to Ewald's order alone. They were not used in the business and belonged absolutely to him. The question is whether they could be taken into account in determining the amount of his Louisville tax. It would seem that some deposits were represented by certificates of deposit but it was stated at the argument that no point was made of that. See Wheeler v. Sohmer, 233 U. S. 434, 438, 34 Sup. Ct. 607, 58 L. Ed. 1030. We are to take it that all the sums are to be dealt with as ordinary bank accounts. The decision of the State Court upheld the tax. 168 Ky. 71, 181 S. W. 1095; 171 Ky. 509, 188 S. W. 652; 172 Ky. 451, 189 S. W. 438. So far as the present decision is concerned we may concede without going into argument that the Missouri deposits could have been taxed in that State, under the decisions of this Court. Liverpool & London & Globe Ins. Co. v. Orleans Assessors, 221 U. S. 346, 354, 31 Sup. Ct. 550, 55 L. Ed. 762, L. R. A. 1915C, 903. Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395, 27 Sup. Ct. 499, 51 L. Ed. 853. But liability to taxation in one State does not necessarily exclude liability in another. Kidd v. Alabama, 188 U. S. 730, 732, 23 Sup. Ct. 401, 47 L. Ed. 669. Hawley v. Malden, 232 U. S. 1, 13, 34 Sup. Ct. 201, 58 L. Ed. 477, Ann. Cas. 1916C, 842. The present tax is a tax upon the person, as is shown by the form of the suit, and is imposed, it may be presumed, for the general advantages of living within the jurisdiction. These advantages, if the State so chooses, may be measured more or less by reference to the riches of the person taxed. Unless it is declared unlawful by authority we see nothing to hinder the State from taking a man's credits tnto account. But so far from being declared unlawful, it has been decided by this Court that whether a State shall measure the contribution by the value of such credits and choses in action, not exempted by superior authority, is the State's affair, not to be interfered with by the United States, and therefore that a State may tax a man for a debt due from a resident of another State. Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. Ed. 558. See also Tappan v. Merchants' Nat. Bank, 19 Wall. 490, 22 L. Ed. 189. It is true that the decision in Kirtland v. Hotchkiss, concerned Illinois bonds, and that if they were physically present in the taxing State, Connecticut, a special principle might apply, as explained in Wheeler v. Sohmer, 233 U. S. 434, 438, 34 Sup. Ct. 607, 58 L. Ed. 1030. See Commissioner of Stamps v. Hope, [1891] A. C. 476, 486; Dicey, Confl. of Laws, (2d Ed.) 312. But the decision was not made to turn upon such considerations; indeed its reasoning hardly is reconcilable with them or with anything short of a general rule for all debts. It is argued that in a later case this Court has held the power of taxation not to extend to chattels permanently situated outside the jurisdiction although the owner was within it; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. 36, 50 L. Ed. 150, 4 Ann. Cas. 493; and that the power ought equally to be denied as to debts depending for their validity and enforcement upon a jurisdiction other than that levying the tax. But this Court has not attempted to press the principle so far and there is opposed to it the long established practise of considering the debts due to a man in determining his wealth at his domicile for the purposes of this sort of tax. The notion that a man's personal property upon his death may be regarded as a universitas and taxed as such, even if qualified, still is recognized both here and in England. Bullen v. Wisconsin, 240 U. S. 625, 631, 36 Sup. Ct. 473, 60 L. Ed. 830. Eidman v. Martinez, 184 U. S. 578, 586, 22 Sup. Ct. 515, 46 L. Ed. 697. Attorney General v. Napier, 6 Exch. 217. It has been carried over in more or less attenuated form to living persons, and the general principle laid down in Kirtland v. Hotchkiss, supra, has been affirmed or assumed to be law in every subsequent case. Bonaparte v. Appeal Tax Court, 104 U. S. 592, 26 L. Ed. 845. Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 29, 31, 11 Sup. Ct. 876, 35 L. Ed. 613. Savings & Loan Society v. Multnomah County, 169 U. S. 421, 431, 18 Sup. Ct. 392, 42 L. Ed. 803. New Orleans v. Stempel, 175 U. S. 309, 321, 20 Sup. Ct. 110, 44 L. Ed. 174. Liverpool & London & Globe Ins. Co. v. Board of Assessors for the Parish of Orleans, 221 U. S. 346, 355, 356, 31 Sup. Ct. 550, 55 L. Ed. 762, L. R. A. 1915C, 903. It was admitted to apply to debts in Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 205, 26 Sup. Ct. 36, 50 L. Ed. 150, 4 Ann. Cas. 493. It is unnecessary to consider whether the distinction between a tax measured by certain property and a tax on that property could be invoked in a case like this. Flint v. Stone-Tracy Co., 220 U. S. 107, 146, 162, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312, et seq. Whichever this tax technically may be, the authorities show that it must be sustained. It is said that the plaintiff in error has been denied the equal protection of the laws because, if the argument is correct, which we have not considered, the decision in this case is inconsistent with earlier decisions of the Kentucky Court. But with the consistency or inconsistency of the Kentucky cases we have nothing to do. Lombard v. West Chicago Park Commission, 181 U. S. 33, 44, 45, 21 Sup. Ct. 507, 45 L. Ed. 731. We presume that like other appellate courts the Kentucky Court of Appeals is free to depart from precedents if on further reflection it thinks them wrong. Judgment affirmed. The CHIEF JUSTICE dissents.

244.US.383

Under the Carmack Amendment, the bill of lading issued by the initial carrier governs the entire transportation; the liability of each paiticipating carrier is fixed by its valid, applicable terms; and new conditions can not be introduced by a connecting carrier through a second bill of lading. Without there being anybreak in the transportation or readjustment of rates, a connecting carrier issued a second bill of lading containing a stipulation, not in the original bill, by which its liability for daniages was made conditional on service of a written claim within a certain time. Held, that the shipper's acceptance of the new bill was without effect upon the rights of the parties. Under the Carmack Amendment, acceptance by the shipper without consideration of a second bill of lading governing a part of the through transportation and which contains new terms more favorable to the carrier is without effect. 169 S. W. Rep. 1035, affirmed.

This is an action to recover damages for injuries to cattle in the course of an interstate shipment. The cattle were delivered on August 23, 1912, by J. R. Ward to the Houston & Texas Central Railroad Company at Llano, Texas, for transportation by it to Elgin, Texas, and over connecting lines, the Missouri, Kansas, & Texas Railway Company of Texas, and the Missouri, Kansas, & Texas Railway Company, to Winona, Oklahoma. The Houston Company issued a through bill of lading in the form of the 'live-stock contract' in common use, and charged a through rate, which was paid by the shipper, as agreed. The cattle arrived at destination in a crippled and debilitated condition, alleged to have resulted from the delay, rough handling, and other negligence of the carriers. Plaintiffs brought this suit for damages in the district court for Llano county, joining the three carriers as defendants. The petition contained no reference to the Carmack Amendment (June 29, 1906, chap. 3591, 34 Stat. at L. 584, 595, Comp. Stat. 1916, §§ 8563, 8604a, 8604aa).1 The Houston Company answered, setting up a provision in the bill of lading limiting liability to injuries occurring on its own line; and alleging that the cattle were transported to Elgin with ordinary care and there delivered in good condition to the connecting carrier. The Missouri, Kansas, & Texas Railway Company of Texas, in its answer, denied the allegations of the complaint, and, in addition, alleged that it had accepted the cattle at Elgin under a second bill of lading or live-stock contract, executed by it and by one E. A. Barrer, as agent of the shipper; that the plaintiff had failed to comply with a stipulation therein, requiring, as a condition precedent to liability, that a written claim for damages be filed within thirty days after the happening of the injuries complained of; and that 'the said shipment constituted and was an interstate shipment, originating in Llano, Llano county, Texas, and destined to Wynona, in the state of Oklahoma, . . . and the said provisions of said bill of lading were and are, each and all binding upon [under?] the laws of Congress relating to interstate commerce in force at the time said bill of lading was executed and said shipment made.' The record is silent as to the circumstances under which this second bill of lading was executed; and although it is alleged to have been issued in consideration of a special reduced rate theretofore duly filed with the Interstate Commerce Commission, there is nothing to indicate that it affected the through rate already agreed upon in the original bill of lading. This lower rate referred to appears to have been merely the customary special rate offered in consideration of an agreed maximum valuation on the cattle per head. The same agreed value was stipulated in the original bill of lading, which expressly 'limits the liability of carriers in consideration of a lower rate being granted.' The Missouri, Kansas, & Texas Railway Company set up the same defense, alleging that it had accepted the shipment under the second bill of lading. A jury trial having been waived, the case was heard by the court, and judgment rendered in favor of the Houston Company, but against the other two defendants in amounts which were found to represent the damage suffered in the course of the transportation through the negligence of their respective agents. Upon appeal by these defendants, the court of civil appeals of the third supreme judicial district affirmed the judgment, on the ground that the liability of the connecting carriers must be governed by the provisions of the bill of lading issued by the initial carrier, (which did not require a written claim in thirty days),—and that the second bill of lading was void under the Carmack Amendment ( Tex. Civ. App. ——, 169 S. W. 1035). Upon denial of a petition for rehearing the case was brought here on writ of error. The purpose of the Carmack Amendment has been frequently considered by this court.2 It was to create in the initial carrier unity of responsibility for the transportation to destination. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. ed. 167, 31 L.R.A.(N.S.) 7, 31 Sup. Ct. Rep. 164; Northern P. R. Co. v. Wall, 241 U. S. 87, 92, 60 L. ed. 905, 907, 36 Sup. Ct. Rep. 493. And provisions in the bill of lading inconsistent with that liability are void. Norfolk & W. R. Co. v. Dixie Tobacco Co. 228 U. S. 593, 57 L. ed. 980, 33 Sup. Ct. Rep. 609. While the receiving carrier is thus responsible for the whole carriage, each connecting road may still be sued for damages occurring on its line; and the liability of such participating carrier is fixed by the applicable valid terms of the original bill of lading.3 The bill of lading required to be issued by the initial carrier upon an interstate shipment governs the entire transportation. The terms of the original bill of lading were not altered by the second, issued by the connecting carrier. As appellants were already bound to transport the cattle at the rate and upon the terms named in the original bill of lading, the acceptance by the shipper of the second bill was without consideration and was void. The railway companies contend that while the Carmack Amendment makes the receiving carriers pay for all liability incurred by the connecting lines, the question of whether there is any such liability or not must be determined by reference to the separate contracts of each participating carrier, and not to the contract of the initial carrier alone. If, as contended, a shipper must, in order to recover, first file his 'verified claim' with the connecting carrier who caused the injury, as provided in a separate bill of lading issued by such carrier, the shipper would still rest under the burden of determining which of the several successive carriers was at fault. Such a construction of the Carmack Amendment would defeat its purpose, which was to relieve shippers of the difficult, and often impossible, task of determining on which of the several connecting lines the damage occurred. For the purpose of Fixing the liability, the several carriers must be treated, not as independent contracting parties, but as one system; and the connecting lines become in effect mere agents, whose duty it is to forward the goods under the terms of the contract made by their principal, the initial carrier. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 206, 55 L. ed. 167, 182, 31 L.R.A.(N.S.) 7, 31 Sup. Ct. Rep. 164; Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 491, 56 L. ed. 516, 523, 32 Sup. Ct. Rep. 205. The railway companies also contend that the acceptance of the second bill of lading operated as a waiver of all rights thereafter accruing under the first. The record discloses no evidence of intention to make such a waiver and there was no consideration for it. Furthermore, as stated in Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 197, 60 L. ed. 948, 952, 36 Sup. Ct. Rep. 541, 'the parties could not waive the terms of the contract under which the shipment was made pursuant to the Federal act. . . . A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed.' Judgment affirmed.

246.US.621

As to cases existing at the time of its enactment, the Philippine Code of Civil Procedure did not displace the system of parental control and usufructuary interest defined by the Civil Code, respecting the property of minor children. Held, therefore, that the right of a parent to emancipate minor children and thus endow them with capacity to make a valid mortgage of their real estate persisted notwithstanding the Code of Civil Procedure. Section 581 of the Code of Civil Procedure, providing that "all pro. ceedings in cases of guardianship pending . at the time of the passage of this Act, shall proceed in accordance with the existing Spanish procedure under which the guardians were appointed," is construed broadly as relating not merely to court proceedings, but as expressly preserving existing powers and usufructuary rights of parents over the property of minor children, existing under the Civil Code. 30 Phil. Rep. 228, affirmed.

Suit by appellants, Joaquin Ibanez de Aldecoa and Zoilo Ibanez de Aldecoa, brought in the Court of First Instance of Manila, to have declared null and void a mortgage executed by them in favor of appellees on the ground that when they executed the mortgage they were unemancipated minors. After some preliminary procedure and upon answer filed and hearing had, the Court of First Instance dismissed the suit as to Joaquin Ibanez, but granted relief in favor of Zoilo Ibanez. Upon appeal the Supreme Court of the Philippine Islands affirmed the judgment so far as it sustained the validity of the mortgage as to Joaquin Ibanez, and reversed it, the judgment, so far as it declared the nullity of the mortgage as to Zoilo Ibanez, and declared the mortgage binding upon the latter; that is, decl red the mortgage valid as to both. This appeal was then prosecuted. The facts are not in dispute. The appellants were born in the Islands, their parents being natives of Spain. Their father's domicile was in Manila, where he died October 4, 1895. After his death the firm of Aldecoa & Co., of which he had been a regular member, was reorganized and his widow became one of the general or 'capitalistic' partners of the firm, and she appeared as such in the articles of partnership. On July 31, 1903, the mother of the appellants, they then being over the age of 18 years, went before a notary public and executed two instruments wherein and whereby she emancipated them with their consent. No guardian of the person or property of appellants has ever been applied for or appointed under the Code of Civil Procedure of the Islands since its promulgation; instead appellants had continued from the death of their father under the custody of their mother until the execution of the instruments of emancipation. February 23, 1906, the firm of Aldecoa & Co. was heavily indebted to the appellee bank and the bank was pressing for payment or security. In consequence the mortgage, which is the subject of this suit, was executed February 23, 1906. On December 31, 1906, the firm expired by limitation and went into liquidation. The question presented is whether the mother of appellants could legally emancipate them and thus confer upon them capacity to execute a valid mortgage of their real property, they consenting. The solution of the question, the Supreme Court said, 'involves an inquiry as to the effect of the provisions of the New Code of Civil Procedure relating to guardianship upon certain provisions of the Civil Code relating to the control by parents over the persons and property of their minor children.' In other words, the question in the case turns upon the accommodation or conflict between certain provisions of the Civil Code and certain provisions of the Code of Civil Procedure, the latter being later in enactment. If its provisions did not repeal or supersede the provisions of the other, the mother of appellants had power to emancipate them and their mortgage was a valid instrument. On this question the courts below are in dissonance. The Court of First Instance considered that the codes were irreconcilable and gave a repealing strength to the Code of Civil Procedure. The Supreme Court rejected this conclusion and gave accommodation to the provisions of the codes by excluding those of the Code of Civil Procedure from operation upon parents who had assumed charge of the property of their minor children and were enjoying its usufruct prior to the adoption of that code. In other words, the rights and duties of such parents with respect to their children, including the right of emancipation, continued to be regulated by the Civil Code. The court deduced this conclusion from the explicit language of the Civil Code conferring parental authority, the absence of a repealing, or modifying or superseding, word in the Code of Civil Procedure, and the declaration of the latter that guardianships pending at the time of its passage should 'proceed in accordance with Spanish law,' with certain exceptions, which emphasized the declaration. It, the declaration, is important, and we therefore quote it. It is section 581 and is as follows: 'Pending guardianships to proceed in accordance with Spanish law, with certain exceptions. All proceedings in cases of guardianship pending in the Philippine Islands at the time of the passage of this act, shall proceed in accordance with the existing Spanish procedure under which the guardians were appointed: Provided, nevertheless, that any guardian appointed under existing Spanish law may be removed in accordance with the provisions of section 574 of this act, and his successor may be appointed as therein provided, and every successor to a guardian so removed shall, in the administration of the person or estate, or either, as the case may be, of his ward, be governed by the provisions of this act.' The construction by the Supreme Court is vigorously assailed by appellants. It was so assailed in the Supreme Court and the court answered it and other contentions of appellants by a discussion at once minute and comprehensive. It is not possible to reproduce it or even epitomize it. Its basis is the customs and habits of a people with resulting rights which found expression and sanction in the Civil Code and of which there is no repeal, it was held, or displacement in the Code of Civil Procedure. And the abruptness of the change and disorder of rights which the contentions of appellants involve the court felt and declared. The change, if change there was, was certainly abrupt and quite radical. Under the Civil Code parents had general control over the property of their children. 'The father, or, in his absence, the mother, is the legal administrator of the property of the children who are under their authority' (article 159), and by subsequent articles a usufruct in the property was given to the parents. 'Filiation', the court said, 'stood in lieu of those legal safe-guards' with which the 'Code of Civil Procedure envelops the property of a minor child.' And the court pointed out that there were certain restrictions upon the parent but they 'did not make the parent a guardian.' It was further held that the Civil Code drew a sharp and clearly distinguishable line between guardianship properly so called, and the patria potestas, or parental authority, and confined the former to guardianship contained in article 199 of that Code which defined it as 'the custody of the person and property or only of the property of those who, not being under the parental authority, are incapable of taking care of themselves.' It was upon these considerations that the court based its judgment, and if it be granted there are counter considerations of strength we are disposed to defer to the tribunal 'on the spot.' It has support in the principles of our jurisprudence which are repellant to retrospective operation of a law and the repeal by implication of one law by another. These principles have urgency in the present case. The change contended for is not only abrupt but fundamental. It is not change of procedure merely but of systems, disturbing rights, devesting or imposing obligations. Indeed, the present case is an example. The mother of appellants, in confidence of her right to do so, emancipated the appellants, and the appellees in equal confidence accepted it as legal, and that many are in like situation under like confidences may be conjectured. It is in effect urged, however, that such disorder was foreseen and accepted as a consequence of existing laws which the legislators with ability and care made a study of, and 'finding the law of guardianship and the law of parental authority, as they stood then, repugnant to the American idea of justice, 'ruthlessly brushed aside' the old order and inaugurated 'the new in the form which had withstood the test of time in the United States." In other words, displaced the parental authority and all that it meant of power of administration and enjoyment by the parents of the estates of their minor children. We concede the care and ability of the legislators but deduce a conclusion different from that of counsel. We are convinced that neither would have been exercised to displace abruptly a system so fixed in the habits and sentiments of a people as parental authority was in the habits of the Islands, and certainly not without explicit declaration, and leave without warning so radical and important a change to be collected from disputable implications. We concur, therefore, with the Supreme Court that section 581, supra, was intended to save 'from the operation of the new act all proceedings in cases of guardianship pending in the Philippine Islands at the time of its passage.' And guardianship and the administration of an estate did not mean, as contended by appellants, something procedural in a court, but they meant what the laws recognized as such and, we have seen, article 159 of the Civil Code provides that 'the father, or, in his absence, the mother, is the legal administrator of the property of the children who are under their authority.' The right is a valuable one and it has as an incident a right as valuable, the usufruct of the estate administered. The value and extent of both rights this court has had occasion to declare in Darlington v. Turner, 202 U. S. 195, 230, et seq., 26 Sup. Ct. 630, 50 L. Ed. 992, and in view of that case we are forced to think that, however our habits may induce us to approve the American system of the relation of parent and child and that there should be interposed between them when property interests are involved the order of a court and the security of bonds, there are other peoples—including a state of this Union—who have found that they could rely with confidence on other than material considerations for the performance of duty and that 'filiation' could stand in lieu of 'those legal safeguards' with which the new Code of Procedure 'envelops the property of a minor child.' There are other contentions of appellants which are either mixed with questions of fact or depend upon an appreciation of local matters and procedure the decision of the local court upon which we accept. Judgment affirmed.

244.US.376

The purpose of the Act of February 24, 1905, 33 Stat. 811, is to provide security for the claims of all persons who furnish labor or material on public works of the United States; the act, and bonds gi~ien under it, are to be construed liberally to effectuate this purpose; and the release of sureties through mere technicalities is not to be encouraged. S, while conducting his business under supervision of a creditors' committee, entered into a contract with the United States for the doing of certain work, and gave bond with surety to secure claims for labor and materials under the Act of February 24, 1905, supra. After part performance of the contract, he and the creditors formed a corporation to take over his affairs, which, without the consent of the United States or the surety, received a transfer of all his business and assets, and thereafter under the management of S, as president, and the control of the creditors through the board of directors, continued for a time to perform the contract. Held: (1) That in view of § 3737, Rev. Stats., the transfer could not effect an assignment of the contract but amounted at most to a subletting. (2) That as the responsibility of the contractor under the contract and the actual management of the business were not changed, nor the surety prejudiced, the transfer did not operate to discharge the surety from past or future liability. (3) That labor and materials furnished in the prosecution of the work under the contract, after the transfer of the contractor's business to the corporation, were to be regarded as furnished to him, within the meaning of the Act of February 24, 1905, supra, as well as to the corporation, and that the latter, besides, might be deemed the successor of the contractor within the condition of the bond, binding him "his heirs, successors," etc. Questions of liability to pay interest under a bond given to secure payment for labor and materials, furnished under a construction contract with the United States, are determinable by the law of the State in which the contract and bond were made and to be performed. Under the law of Illinois the liability of a surety on a bond is extended beyond the penalty by way of interest from the date when the liability on the bond accrued. Where claims are all liquidated and amounts are not disputed, but only liability under the bond, the surety, which has not elected to pay into court, is properly chargeable with interest from commencement of suit upon the aggregate of the claims allowed as reduced to the penal amount of the bond. Acts of creditors upon which the surety neither acted nor relied, which did not affect it and which are not inconsistent with a resort to the security of the bond, afford no basis for an equitable estoppel in favor of the surety. The renting of a plant of cars, track and equipment actually used in the construction of public work for the United States is a furnishing of "materials "within the meaning of the Act of February 24, 1905; and the rent reserved, together with the loading and freight expenses incident to bringing the plant to and from the place of use, are liabilitif covered by the contractor's bond. 226 Fed. Rep. 653, affirmed.

This is an action against the Illinois Surety Company on a bond given by one Schott under Act of Congress, February 24, 1905 (33 Stat. at L. 811, chap. 778, Comp. Stat. 1916, § 6923), to secure performance of his contract for work on the Naval Training Station at Chicago.1 It is brought for the benefit of persons who furnished labor or materials. The bond provides: 'The condition of the above bond is such, that if the said above bounden principal, W. H. Schott, his or their heirs, successors, executors or administrators . . . shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in the aforesaid contract, then this obligation to be void and of no effect, otherwise to remain in full force and virtue.' The bond was given on August 3, 1908. Schott was then heavily indebted, and his business was being conducted under the supervision of a creditors' committee. Later, on the advice of that committee, the Schott Engineering Company was incorporated to take over the business; and on January 2, 1909, all the assets were transferred to it. Schott became president, the members of the creditors' committee directors. Substantially all the capital stock was issued to Schott, and all was retained by him except $36,000 preferred stock which was later sold—the proceeds being used to pay debts. Neither the government nor the Surety Company was advised of the transfer, which left the management and the conduct of the business unchanged; and the work was proceeded with continuously from the execution of the bond until January 14, 1910, when both Schott and the company were adjudicated bankrupt. After a short interruption, the work was resumed by the receiver under authority of the court; and settlement was made with the government. Twenty-seven creditors, six of whom furnished labor or materials prior to January 2, 1909, the rest of whom had claims arising between that date and the bankruptcy, sought to recover on the bond. The district court allowed recovery on five of the claims, aggregating $15,333.24, which accrued prior to the transfer of the business to the Schott Engineering Company. The circuit court of appeals reversed that judgment and allowed the claims of all who joined in the writ of error to that court—nineteen, aggregating $38,121.02; but it reduced them pro rata to make the aggregate equal the penalty of the bond,—$31,047.18. It then allowed interest on all from the date of the commencement of the suit. 141 C. C. A. 409, 226 Fed. 653. The Surety Company appealed to this court and contends: (1) As to each claim that it was released from liability by the transfer of the business to the Schott Engineering Company during the progress of the work. (2) As to each claim that interest should not begin to run before the date when the amount payable on all claims was ascertained by the judgment of the circuit court of appeals. (3) As to certain claims, that the creditors are estopped by specific acts from enforcing the liability upon the bond. (4) As to the claim of the United States Equipment Company, that rental for cars, track, and equipment is not a claim for 'labor and materials' recoverable on bond. These contentions will be considered in their order. First: The purpose of the act was to provide security for the payment of all persons who provide labor or material on public work. This was done by giving a claim under the bond in lieu of the lien upon land and buildings customary where property is owned by private persons. Decisions of this court have made it clear that the statute and bonds given under it must be construed liberally, in order to effectuate the purpose of Congress as declared in the act. In every case which has come before this court, where labor and materials were actually furnished for and used in part performance of the work contemplated in the bond, recovery was allowed, if the suit was brought within the period prescribed by the act. Technical rules otherwise protecting sureties from liability have never been applied in proceedings under this statute.2 As the basis of recovery is supplying labor and material for the work, he who has supplied them to a subcontractor may claim under the bond, even if the subcontractor has been fully paid. Mankin v. United States, 215 U. S. 533, 54 L. ed. 315, 30 Sup. Ct. Rep. 174. If Schott had formally sublet the contract to the Engineering Company, the Surety Company would clearly be liable. But the transfer of the business was, at most, a subletting; since under Rev. Stat. § 3737, Comp. Stat. 1916, § 6890, Schott could not assign a contract with the United States. It is urged that the bond referring to Schott provides protection only to those 'supplying him or them labor and materials.' But the claims in question were in a very practical sense furnished him—as well as the Engineering Company. He remained liable on the contract; and no one else was known to United States. Furthermore, if the attention is to be directed to the precise wording of the bond, it should be noted that it refers to Schott, 'his or their heirs, successors, executors or administrators;' and the Engineering Company may properly be deemed a successor. The argument that the surety's risk ought not to be increased by holding it liable for the default of strangers to the original contract is of no greater force in the case of an assignee than it is in that of the subcontractor. The Surety Company could protect itself by insisting that the contractor require a bond from all subcontractors and assignees. The Surety Company was in nowise prejudiced by the transfer of the business, since the management remained unchanged; and no reason is shown for applying the rule of strictissimi juris. United States Fidelity & G. Co. v. Golden Pressed Fire Brick Co. (United States Fidelity & G. Co. v. United States) 191 U. S. 416, 426, 48 L. ed. 242, 246, 24 Sup. Ct. Rep. 142. Second: The contract and bond were made in Illinois and were to be performed there. Questions of liability for interest must therefore be determined by the law of that state. Scotland County v. Hill, 132 U. S. 107, 117, 33 L. ed. 261, 265, 10 Sup. Ct. Rep. 26. Under the law of Illinois the liability of a surety on a bond is extended beyond the penalty by way of interest from the date when the liability on the bond accrued. Holmes v. Standard Oil Co. 183 Ill. 70, 55 N. E. 647. See United States v. United States Fidelity & G. Co. 236 U. S. 512, 530, 531, 59 L. ed. 696, 704, 705, 35 Sup. Ct. Rep. 298. The liability here accrued at least as early as the commencement of the suit. The Surety Company contends that the amount each claimant was to receive was not made definite until it was actually decided by the court of appeals. But the claims were all for liquidated amounts; and in no instance was the amount in dispute. The controversy was merely as to which of the claimants should be entitled to share in the liability under the bond. The Surety Company might have paid into court at the commencement of the suit an amount equal to the penalty of the bond. It did not elect to do so; and as the aggregate liability on the claims exceeds the penalty, it was properly held for an additional amount equal to interest from the commendment of the suit. Third: The contention of the Surety Company that certain of the claimants are estopped from enforcing liability on the bond rests upon different acts in respect to the several creditors. As to some it is because they filed against the estates in bankruptcy of both Schott and the Engineering Company the whole of their claims for material delivered in part to each. As to one creditor the estoppel is predicated upon the fact that, in answer to an inquiry, he recommended that the receiver in bankruptcy complete the contract. As to another creditor the estoppel is predicated upon the fact that he filed his claim in bankruptcy against the Engineering Company while the materials had been furnished to Schott. As to still another, the contention rests upon the fact that having claims against both Schott and the Engineering Company, he had stated to the Engineering Company a single account covering all the items, and had accepted part payment; and furthermore had participated in the activities of the creditors' committee which supervised the business throughout the whole period. Such acts lack all the elements of an equitable estoppel. The Surety Company was not led thereby to do or to omit to do anything. It did not rely upon, nor was it affected by, any of the acts it now calls attention to. Dickerson v. Colgrove, 100 U. S. 578, 580, 25 L. ed. 618, 619. There is in fact no inconsistency between the claimants' earlier acts and their attempt to recover on the bond. The Surety Company's contention is without merit. Fourth: The specific objection made to the claim of the United States Equipment Company, for rental of cars, track, and equipment used at the Naval Training Station, and the expense of loading the plant and freight thereon to and from the station, is also unfounded. The Surety Company contends that this is not supplying 'labor and materials.' The equipment was used in the prosecution of the work. Material was thus supplied, although a loan serving the purpose, no purchase of it was made. The expense of loading and freight was properly included with the fixed rental as recoverable under the bond. Title Guaranty & T. Co. v. Crane Co. 219 U. S. 24, 34, 55 L. ed. 72, 77, 31 Sup. Ct. Rep. 140. Judgment affirmed. Mr. Justice Van Devanter and Mr. Justice McReynolds dissent.

243.US.464

In the exercise of its guardian powers over tribal Indians through allotment of lands of their reservation and conversion of surplus lands into tribal funds, Congress is free to adjust its action to meet new and changing conditions so long as no fundamental right is violated. Having enrolled a white man as an adopted member of an Indian tribe, and authorized and directed the Secretary of the Interior to issue him a patent in fee for a designated tract of the tribal land as his allotment, to be in lieu of all claim on his part to allotment or to money settlement in lieu thereof, Congress had power to recall the direction before the fee had passed, upon finding that the tract designated had been lawfully devoted to a special use (e. g., school purposes) from which it could not be withdrawn with due regard for the tribe, or that in situation and value it exceeded a fair distributive share of the common property-this without prejudice to the right of the allottee to obtain another allotment in the usual way. An act of Congress directing the Secretary of the Interior "to issue a patent in fee" to a designated member of an Indian tribe for a designated tract of land set apart as his allotment, but containing no other words indicative of an intention to pass title by the act itself, Held, not a grant in prcesenti. Such, a provision calls for no acceptance other than such as would be implied from taking the patent when issued, A direction by Congress that a patent be issued an individual for land assigned him as an Indian allotment is to be regarded, not as a proposal by the Government which upon acceptance makes a'c ontract, but as a law amendable and repealable at the will of Congress, subject to the qualification that rights created by the execution of such provision can not be divested or impaired. Levey v. Stackslager, Commissioner, 129 U. S. 470.

This is an action in ejectment, brought by the United States against James F. Rowell and two others. The land in controversy is a quarter section—160 acres—in an Indian school reserve in Comanche county, Oklahoma. Three statutes, all enacted in the same year, must be noticed. The first of these is a provision in the Act of April 4, 1910, chap. 140, 36 Stat. at L. 269, 280, authorizing and directing the Secretary of the Interior 'to enroll and allot' James F. Rowell as an adopted member of the Kiowa Tribe of Indians. The second is the following provision in the Act of June 17, 1910, chap. 299, § 3, 36 Stat. at L. 533: 'That the Secretary of the Interior is hereby authorized and directed to issue a patent in fee for' the tract in controversy 'to James F. Rowell, a full member of the Kiowa, Comanche and Apache Tribes of Indians of Oklahoma, who has heretofore received no allotment of land from any source; this to be in lieu of all claims to any allotment of land or money settlement in lieu of an allotment.' And the third is the express repeal of the provision just quoted by the Act of December 19, 1910, chap. 3, 36 Stat. at L. 887. The controversy turns chiefly upon the true construction and effect of the provision of June 17 and the constitutional validity of the repealing provision of December 19. These questions are to be solved in the light of the following facts: A patent was not issued to Rowell. He asked for one, but, at the suggestion of the chairman of the Committees on Indian Affairs in the Senate and House of Representatives, the President, in whose name such patents are issued, withheld his signature from the patent and directed that nothing be done until Congress could further consider the matter. Congress was not then in session, and when it reconvened the matter was again considered, with the result that the provision in the Act of June 17 was repealed. The tract in controversy was part of a large reservation established by treaties in 1868 as a permanent home for the Kiowa, Comanche, and Apache Indians. 15 Stat. at L. 581, 589. In 1901 the members of these tribes were given allotments in severalty in this reservation and the greater part of the remaining lands was disposed of by the United States,—what was deemed to be their fair value being credited to the Indians as a trust fund. 31 Stat. at L. chap. 813, § 6, p. 676. At that time a portion of the reservation, embracing the tract in controversy, was set apart for school purposes for these Indians, and this school reserve is still maintained and used for their benefit. The tribal relation of these Indians has not been terminated. They are still in a state of pupilage and under the control of the United States. It retains the title to their allotments and administers their tribal affairs and property. James F. Rowell is a white man who went to the large reservation as an Indian trader in 1899 and has since lived with these Indians. He is a physician and has practised among them. In 1903 he married a Kiowa woman and in 1909 was adopted as a member of the tribe. His wife received an allotment from the tribal lands in 1900, and some of their children received allotments in 1906 or 1908. 34 Stat. at L. chap. 2580, § 6, p. 214; 35 Stat. at L. chap. 216, § 24, p. 456. But no allotment had been made to him when the provision of June 17, 1901, was enacted. It was enacted at his solicitation, and the Committees on Indian Affairs in the Senate and House of Representatives, in recommending its repeal, reported that it was enacted in the belief that the tract described was of no greater value than the average of those allotted to other members of the tribe, or than other tracts still subject to allotment, when in truth it was of vastly greater value, and that misrepresentation and deception were practised by Rowell in securing the legislation. Senate Report No. 924 and House Report No. 1741, 61st Cong. 3d Sess. About two years before, the south half of the same section—320 acres—had been sold for town-site purposes under the Act of March 27, 1908, chap. 106, 35 Stat. at L. 49, for upwards of $250,000. In June, 1911, six months after the date of the repealing act, Rowell entered upon the tract in controversy and since then his remained in possession, although promptly notified, through the Indian agent, that he was a trespasser and must vacate the premises. One of the defendants is Rowell's wife and another is the wife of a lawyer who assisted him in securing the passage of the provision which Congress felt called upon to repeal. She holds a deed from Rowell, made after the date of the repealing act, and purporting to convey to her an undivided one-half interest in the tract for a recited consideration of $50,000. The three defendants had come to be in possession when the action was begun. In the district court there was a directed verdict and a judgment for the defendants. Congress was here concerned with the affairs of Indians whose tribal relation had not been dissolved,—Indians who were still wards of the United States and entitled to look to it for protection. The plan of giving them individual allotments in the reservation theretofore established as a tribal home, and of converting the surplus lands into interest-bearing funds, was not theirs. But it was obligatory on them, because it was adopted by Congress in the exercise of its control over them. As in other instances, the wish of the ward had to yield to the will of the guardian. And Congress was free to exert this guardianship in any manner which it deemed appropriate, and to adjust its action to new or changing conditions, so long as no fundamental right was violated.1 In view of the scope of this power, as reflected by over a century of practice and by the decisions of this court, we think it was quite admissible for Congress to give effect to Rowell's status as an adopted member of the tribe, to recognize his claim to an allotment out of the tribal lands, to designate the land which he should receive, and to direct that it be conveyed to him by a patent in fee without awaiting the expiration of the usual trust period of twenty-five years. And if, before that direction was complied with, it was discovered that the land designated was lawfully devoted to a special use from which it could not be withdrawn with due regard for the tribe in general, or that its situation and value were such that to allot or to convey it to him would invest him with much more than a fair distributive share of the common property of the tribe, we think it was equally admissible for Congress to recall that direction in the interest of the tribe as a whole. At most, that direction was but an exertion of the administrative control of the government over the tribal property of tribal Indians, and was subject to change by Congress at any time before it was carried into effect. Gritts v. Fisher, 224 U. S. 640, 648, 56 L. ed. 928, 933, 32 Sup. Ct. Rep. 580. If the rule were otherwise and the quarter section upon which the Indian school buildings are situate had been inadvertently designated as the land which he should receive, the situation might have been one of great embarrassment. See United States v. Des Moines Nav. & R. Co. 142 U. S. 510, 544, 35 L. ed. 1099, 1109, 12 Sup. Ct. Rep. 308; United States v. Old Settlers, 148 U. S. 427, 466, 37 L. ed. 509, 523, 13 Sup. Ct. Rep. 650; Cooley, Const. Lim. 7th ed. 257-259. But it is insisted that the provision of June 17, 1910, was a grant in praesenti and operated in itself to pass the full title to Rowell, and therefore that he had a vested right in the land which the repealing act could not affect. If the premise be right the conclusion is obviously so. But is the premise right? Of course, a grant may be made by a law as well as by a patent issued pursuant to a law, but whether a particular law operates in itself as a present grant is always a question of intention. We turn, therefore, to the provision relied upon to ascertain whether it discloses a purpose to make such a grant; that is to say, a purpose to pass the title immediately without awaiting the issue of a patent. We find in it no words of present grant, but only a direction to the Secretary of the Interior 'to issue a patent in fee' to Rowell for the tract described. Only through this express provision for a patent do we learn that a grant is intended, and, if it were eliminated, nothing having any force would remain. This, we think, shows that a present statutory grant was not intended, but only such a grant as would result from the issue of a patent as directed. The cases cited as making for a different conclusion are plainly distinguishable in that they deal with laws or treaties making grants, and either containing no provision for a patent, or providing for one merely by way of further assurance. It is also insisted that, by applying for a patent before the provision therefor was repealed, Rowell accepted that provision, and thereby acquired a right to have it carried into effect of which he could not be devested by the repealing act, consistently with due process of law. But the provision did not call for an acceptance and it is evident that none was contemplated, other than such as would be implied from taking the patent when issued. Besides, statutes of this type are not to be regarded as proposals by the government to enter into executory contracts, but as laws which are amendable and repealable at the will of Congress, save that rights created by carrying them into effect cannot be devested or impaired. Gritts v. Fisher, supra; Choate v. Trapp, 224 U. S. 665, 671, 56 L. ed. 941, 944, 32 Sup. Ct. Rep. 565; Sizemore v. Brady, 235 U. S. 441, 449, 59 L. ed. 308, 311, 35 Sup. Ct. Rep. 135. A case much in point is United States ex rel. Levey v. Stockslager, 129 U. S. 470, 32 L. ed. 785, 9 Sup. Ct. Rep. 382. The facts out of which it arose are these: By an Act of March 2, 1867 [14 Stat. at L. 635, chap. 208], Congress confirmed to the widow and children of a deceased claimant the one-sixth part, amounting to 75,840 acres, of an old land claim, and then, after reciting that the government had appropriated the land to other purposes, directed the Commissioner of the General Land Office to issue to the widow and children certificates of location in 80-acre lots locatable upon public lands at any land office, in lieu of their asserted interest in the old claim. Four days later the widow and children requested the Commissioner to issue the certificates, but the request was not complied with. On the 30th of the same month Congress by a joint resolution [15 Stat. at L. 353] approved by the President, directed that the execution of the act be suspended, and the suspension was not subsequently removed. The widow and children contended that, in view of what was done, they were entitled, in a contractual sense, to the certificates, and had acquired a vested right to them of which they could not be deprived by the joint resolution without denying them due process of law. But both phases of their contention were denied, it being said in the course of the opinion that 'the whole thing remained in fieri and subject to the control of Congress;' that 'there was here no contract between the United States and the widow and children' in the sense contended, that the joint resolution 'did not deprive the widow and children of any property, or right of property, in violation of the Constitution,' and that 'the transaction was merely the ordinary one of a direction by statute to a public officer to perform a certain duty, and a subsequent direction to him by statute, before he had performed that duty or had entered upon its performance, not to perform it.' For these reasons we conclude that the repealing provision was valid, and that while it did not affect Rowell's status as an adopted member of the tribe, or his right to obtain in the usual way an allotment from the tribal lands not specially reserved, it did revoke the special provision made in his behalf in the Act of June 17, 1910. It results that the verdict, instead of being directed for the defendants, should have been directed for the government, as was requested. This requires that the judgment be reversed and the cause remanded for a new trial. Judgment reversed.

242.US.600

When the highest state,court has refused to exercise its discretion to' review.a judgment of an intermediate appellate tribunal, it is to the latter that the writ of error under Judicial Code, § 237, should be directed. Stratton v. Stratton, 239 U. S. 55; Valley Steamship Co. v. Wattawa, 241 U. S. 642. The Ohio Court of Appeals affirmed a judgment of the Superior Court of Cincinnati, upon the record coming from the latter, and ordered that a special mandate be sent to that court "to carry this judgment into effect," without directing it to enter any judgment of its own. Held, that the writ of error under § 237 should have been directed to the Court of Appeals and not to the Superior Court.

This writ of error must be dismissed. It appears from the record that the action was commenced in the superior court of Cincinnati to recover the sum of $5,000 for money which, it was alleged, the Cincinnati Bank was to loan for the First National Bank of Okeana. Issues were made up and a trial had in the superior court, which resulted in a verdict and judgment against the Cincinnati Bank. Petition in error was filed and the case taken to the court of appeals, wherein it was heard upon the record, and the judgment of the superior court of Cincinnati was affirmed. After a general judgment of affirmance, the court of appeals ordered 'that a special mandate by sent to the superior court of Cincinnati to carry this judgment into execution.' An application by motion was made to the supreme court of Ohio to direct the court of appeals to certify its record to the supreme court for review. That motion was overruled. Thereupon a petition for the allowance of a writ of error from this court was presented, which recited that the Constitution and laws of the state of Ohio and the decision of the supreme court in Akron v. Roth, 88 Ohio St. 456, 103 N. E. 465, show that the supreme court of Ohio has no jurisdiction of the case, in view of its refusal to direct the court of appeals to certify its record to that court, and that on February 1, 1916, the record of the case was returned to the superior court of Cincinnati with the mandate of the court of appeals, affirming the judgment of the superior court of Cincinnati, and a writ of error was asked to bring up for review the order and judgment of the superior court. A writ of error was allowed and issued, running to the superior court of Cincinnati, reciting that it was the highest court of record in the state in which a decision in the cause could be had. In pursuance of that writ the record was certified from the superior court of Cincinnati to this court. The Judicial Code, § 237 [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214], provides that a final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity, etc., may be re-examined and reversed or affirmed in this court upon writ of error. We are of opinion that in this case the writ of error should have been directed to the court of appeals, as that, under the Constitution and laws of the state of Ohio, is the highest court in which a final judgment could be rendered in this case, in view of the refusal of the supreme court of Ohio to grant the motion to certify to it the record of the court of appeals. Stratton v. Stratton, 239 U. S. 55, 60 L. ed. 142, 36 Sup. Ct. Rep. 26; Valley S. S. Co. v. Wattawa, 241 U. S. 642, 60 L. ed. 1217, 36 Sup. Ct. Rep. 447. By the new Constitution of Ohio and subsequent legislation, a system of court of original and appellate jurisdiction was established in that state. Section 1576, General Code, as amended, 103 Ohio Laws, 415, provides, among other things, that 'the superior court of Cincinnati, in respect to the form and manner of all pleadings therein, and the force and effect of its judgments, orders, or decrees, is a court of general jurisdiction.' Section 12,247 provides that 'a judgment rendered or final order made by a court of common pleas or by the superior court of Cincinnati, or by a judge of either of such courts, may be reversed, vacated or modified, by the court of appeals having jurisdiction in the county wherein the common pleas or superior court is located, for errors appearing on the record.' Section 1684 provides that 'the supreme court or the court of appeals may remand its final decrees, judgments, or orders, in cases brought before it on error or appeal, to the court below, for specific or general execution thereof, or to the inferior courts for further proceedings therein.' Reference to the record in this case shows that the court of appeals ordered 'that a special mandate be sent to the superior court of Cincinnati to carry this judgment into execution;' that is, to carry into effect the judgment of the court of appeals. There was no direction that the superior court enter any judgment in the case; on the contrary, its judgment was specifically affirmed upon the record sent to the court of appeals, and the only mandate directed was to carry into effect in the superior court, by execution, the judgment of the court of appeals. In this state of the record, it is clear that the writ of error in this case, when allowed, should have been directed to the court of appeals, requiring it to certify to this court its proceeding and judgment for review here, that court being the highest court of the state in which a judgment in the case could be rendered. It follows that the writ of error in this case must be dismissed. Dismissed.

243.US.302

An order of a District Judge allowing a writ of error from this court and containing a recital that the judgment was based solely upon lack of jurisdiction supplies the place of the certificate required by § 238, Judicial Code. An allegation in a petition for removal that the plaintiff's motive in joining resident and nonresident defendants is to prevent removal to the federal court is not in itself sufficient ground for removal, but specific facts supporting the charge of fraud must be alleged. When the plaintiff's petition states a case of joint liability in tort under the state law against a resident and a nonresident defendant and the petition to remove the case on the ground that it contains a separable controversy fails to aver facts showing that the joinder is fraudulent, the' District Court must remand. Under the law of Kentucky a railroad company, though not required by speed laws, must nevertheless take notice of the places where numerous people are accustomed to cross or otherwise to be upon its tracks, and, by moderating speed, maintaining proper look-out, and giving proper signals, must exercise due care to save them from injury by trains. Failure to observe this duty resulting in injury or death is actionable negligence. Under the law of Kentucky lessor and lessee railroad companies are jointly liable for injury or death inflicted on persons on the tracks, not trespassers, by the negligence of the lessee in operating trains. A petition averring that plaintiff's decedent, while at or near a public crossing in a town where fiumerous people were accustomed to be and travel, as lessor and lessee companies well knew, and while in plain view of their agents and servants, was negligently and wantonly run down and killed, without fault on his part, by a train operated by the lessee, and specifying that the negligence consisted in excessive speed-fifty miles an hour,-failure to keep proper look-out for travelers at such a place, and failure to give adequate signals or warnings of the approaching train-states a cause of action against both companies under the law of Kentucky. 198 Fed. Rep. 660, reversed.

On March 26, 1902,—fifteen years since,—the plaintiff filed her petition in the circuit court of Greenup county, Kentucky, against the Chesapeake & Ohio Railway Company, a corporation organized under the laws of Virginia, hereinafter called the Virginia company, lessee, and the Maysville & Big Sandy Railroad Company, a corporation organized under the laws of Kentucky, hereinafter called the Kentucky company, the owner and lessor of the railway on which plaintiff's decedent, on March 15th, 1902, was run down by a passing train and so injured that he soon thereafter died. In due time, the Virginia company filed a petition for removal of the cause to the circuit court of the United States for the eastern district of Kentucky, in which petition it is alleged: that there is in the case a separable controversy which is wholly between citizens of different states, the petitioner, a corporation of Virginia, and the plaintiff, a citizen of Kentucky; that the Kentucky corporation is not a necessary or proper party to the cause, which can be determined between the Virginia company and the plaintiff without reference to the Kentucky company; and that the Kentucky company is 'wrongfully, fraudulently, and falsely' made a party for the sole purpose of preventing removal to the Federal court, without any intention on the part of the plaintiff of proving against it any of the acts of negligence alleged in the petition. It is charged that no cause of action is stated in the amended petition against the Kentucky company. On May 24, 1905, the plaintiff filed a motion to remand the case to the state court, on the ground that the Federal court 'is without jurisdiction to hear and determine the cause,' which motion was overruled on the same day. Various consent continuances carried the case over for two and one-half years, until December 27, 1907, when the plaintiff filed a motion to set aside 'the order heretofore made denying her motion to remand the case,' and in support of this motion, on the same day, she filed an answer to the petition for removal which is, in substance, a detailed denial of all of the allegations of that petition. On the 25th of the following May (1908) plaintiff's motion to reconsider the court's ruling denying her motion to remand the case was submitted, and thirty days given for filing a brief, but it was not decided until a year later, when, on May 24th, 1909, it was overruled. Again various continuances by consent caused the case to go over for three years more, until May 27th, 1912, when the plaintiff's motion to reconsider the court's action in overruling her motion to remand was again overruled. Then follow other continuances, aggregating two years more, until, on May 25th, 1914, on motion of the defendant, the case was dismissed for want of prosecution, in an order which, four days later, was set aside, and again nothing was done for eighteen months, until December 15th, 1915, when the case was a second time dismissed for want of prosecution, in an order which was revoked on the 24th of the following July, at which time the former action of the court in overruling plaintiff's motion to remand the case was reaffirmed, and the plaintiff, having elected to stand on her motion to remand, and 'refusing to recognize the jurisdiction of the United States court or to proceed with the prosecution of her case therein,' upon motion, it was dismissed at plaintiff's costs. On the next day the district judge allowed a writ of error to this court in an order reciting that plaintiff's petition 'had been dismissed by the judgment of this court upon consideration solely of the question of this court's jurisdiction of the action.' The case is properly in this court, the order of the district judge being sufficient to take the place of the certificate required by § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215]. Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 282, 46 L. ed. 910, 22 Sup. Ct. Rep. 681; Herndon-Carter Co. v. James N. Norris, Son & Co. 224 U. S. 496, 498, 56 L. ed. 857, 858, 32 Sup. Ct. Rep. 550. The validity of the denial of the plaintiff's motion to remand the case, which is thus brought before us, must be determined upon the allegations of the amended petition and of the petition for removal (Madisonville Traction Co. v. St. Bernard Min. Co. 196 U. S. 239, 245, 49 L. ed. 462, 464, 25 Sup. Ct. Rep. 251), when tested by the laws of Kentucky (Illinois C. R. Co. v. Sheegog, 215 U. S. 308, 54 L. ed. 208, 30 Sup. Ct. Rep. 101; Chesapeake & O. R. Co. v. Cockrell, 232 U. S. 146, 153, 58 L. ed. 544, 547, 34 Sup. Ct. Rep. 278). Fully recognizing this rule, the district court decided the motion on the face of the pleadings, and its reasons for refusal to remand the case, as stated in McAllister v. Chesapeake & O. R. Co. 85 C. C. A. 316, 157 Fed. 741, 744, 13 Ann. Cas. 1068, are, that the Kentucky company had lawful authority to lease its railroad to the Virginia company (McCabe v. Maysville & B. S. R. Co. 112 Ky. 861, 66 S. W. 1054), that the allegation of plaintiff's amended petition that plaintiff's decedent was injured 'at or near a public crossing' is an admission that he was a trespasser on the railroad track at the time (Davis v. Chesapeake & O. R. Co. 116 Ky. 144, 75 S. W. 275); and that the lessor company is not liable for injury to a trespasser by the negligence of its lessee. These reasons were restated at length by the district judge when he denied the motion to reconsider his refusal to remand. This conclusion of the district court, that the allegation of the amended petition that the deceased, 'at the time of the injuries complained of, was at or near a public crossing in the town of Fullerton,' is an admission that he was a trespasser at the time, is based, we think, upon an insufficient statement of the allegations of the amended petition, and upon much too narrow a view of the effect of the decisions of the Kentucky court of appeals as applied to the facts pleaded in this case. The allegations of the amended petition are: That since before the year 1890 the Virginia company had been operating the line of railway owned by the Kentucky company under a lease 'which in no wise relieves the lessor from liability for the torts of the operating lessee,' and that, on March 15th, 1902, when plaintiff's decedent 'was at or near a public crossing, . . . a place in the town of Fullerton where numerous people were accustomed to be and travel,' as the defendants well knew, without fault on his part, and while in plain view of the agents and servants of the defendants, he was 'negligently and wantonly' run down and killed by a train operated by the defendant, the Virginia company. The negligence alleged is excessive speed of the train, 50 miles an hour,—failure to keep proper lookout for travelers at such a place, and failure to give adequate signals or warnings or the approaching train. In the case cited by the court in its opinion (Davis v. Chesapeake & O. R. Co. supra), the petition alleged that 'the intestate was run over and killed at or near a private crossing over the railroad track, between her garden and her home;' that it was 'not far' from public crossings to the east and west of her; and that the train was negligently running at 50 miles an hour, without any appropriate lookout being kept or signals given. In considering this petition the court of appeals, saying that it must be taken most strongly against the pleader, decided that the allegation that the deceased was killed 'at or near a private crossing' must be construed as meaning that she was killed at a place on the track other than at the crossing, and that it is only at a public crossing that reckless speed or any failure to give signals amounts to negligence. The differences between this decided case and the case at bar are obvious and vital,—a private crossing in the one, a public crossing in the other, and 'a place where numerous people were accustomed to be and travel' in the one case, and silence as to the extent of use in the other. We shall see the court of appeals laying sharp hold upon both of these distinctions when determining what the state law applicable to such cases is. Whatever doubt there may have been before, as to what duty the operating railroad company owed to the plaintiff's decedent, was settled by the decision in Illinois C. R. Co. v. Murphy, 123 Ky. 787, 11 L.R.A.(N.S.) 352, 97 S. W. 729, in which the court of appeals, in a comprehensive survey of its prior decisions, formulates in two 'principles' or rules, the duty of the operating railroad company to persons crossing or walking along its tracks. The first of these is that in sparsely-settled districts, or where few people cross or walk along railroad tracks, such users are to be regarded as trespassers, to whom no duty is owed by the company, except to keep from injuring them if it reasonably can, after their presence and peril shall have been discovered. The second principle, and it is the one applicable to the case stated in the amended petition, is, that in more populous communities, or where many people are accustomed to cross or otherwise use railroad tracks, the duty of the company is 'to operate the train with the fact of the trespassers' presence in mind,—that is, at a speed which has the train under control, and keeping such a lookout as will enable the operatives to give timely warnings of its approach, as well as to stop it in case of necessity before injury has been inflicted upon the trespasser.' Legislation has not regulated the speed of trains in such (smaller) communities, and until it does each case must rest upon its own facts. 'Whether the speed is so great as to amount to negligence will be a fact to be determined by the jury, for the circumstances will necessarily vary, according to the population, the use of the track for passage by foot or vehicle travelers, the obstruction to the view, and so forth. . . . 'If the railroad company knows that the public habitually uses its tracks and right of way in a populous community as a foot pass way, so that it knows that at any moment people may be expected to be found thereon, such knowledge is treated as equivalent to seeing them there, and their presence must be taken into consideration by the train operatives in the movement of their trains.' Six years later, in Chesapeake & O. R. Co. v. Warnock, 150 Ky. 74, 150 S. W. 29, and, oddly enough, in a case growing out of an accident which occurred in this same village of Fullerton, the court of appeals again reviews its decisions, approves the statement of the law in the Murphy Case, as we have quoted it, and concludes with the statement that: 'Although Fullerton was not an incorporated town, it was a town in fact; and the place where the accident occurred [described as 60 feet from any public crossing] was such a locality that the presence of persons on the track might be anticipated at any time.' Again recurring to the subject, the same court in Corder v. Cincinnati, N. O. & T. P. R. Co. 155 Ky. 536, 159 S. W. 1144, restates the rule, saying: 'It is not so much whether the accident occurs in the city or village as it is that there was evidence of such long and continued use of the footpath by a large number of people as to impose upon the railroad the duty of giving warning of the approach of its trains to this point. . . . It is the nature and use of the crossing by the public that is to determine the applicability of the rule which requires the lookout.' And yet again, in Willis v. Louisville & N. R. Co. 164 Ky. 124, 175 S. W. 18, the same court concludes another discussion of its decisions with the approval of the Warnock and Corder Cases, and adds: 'Running through all these opinions will be found the thought that it is the habitual use of the track by large numbers of persons, rather than the location of the track, that creates the distinction between trespassers and licensees.' Watson v. Chesapeake & O. R. Co. 170 Ky. 254, 185 S. W. 852, the last decision dealing with this subject, plainly is not intended to modify the rule we have thus seen so long established. While these decisions of the court of appeals of Kentucky leave something to be desired in the definition of the distinction between 'trespassers' and 'licensees,' there can be no doubt that, regardless of the terms of designation used, the result of them is that the allegations of the amended petition in the case under consideration, if supported by appropriate testimony, would require that the case be sent to a jury under a proper charge of the court, and that it was error for the trial court to hold that they did not state a cause of action as against the lessee (operating) company. There remains only the question whether the amended petition states a cause of action against the lessor, the Kentucky company, and it is very clear that the decisions of the highest court of that state answer this question in the affirmative. In McCabe v. Maysville & B. S. R. Co. (this same Kentucky corporation) 112 Ky. 861, 66 S. W. 1054, the court of appeals of Kentucky expressly decides that, under the lease of its line to the Virginia company, which was in effect when the action complained of occurred, the lessor company, notwithstanding the lease, continued liable to the public for the torts of its lessee in operating the leased railroad, holding that where both lessor and lessee were joined as defendants in a suit for causing the wrongful death of a man killed by an engine operated by the lessee, the liability was joint, and that a removal petition, not to be distinguished in substance and scarcely in form from the one filed by the Virginia company in this case, did not state a case of a separable controversy, justifying removal to the United States court. To this same effect, construing the Constitution and statutes of Kentucky, as applied to leases by other corporations, are Illinois C. R. Co. v. Sheegog, 126 Ky. 252, 103 S. W. 323, affirmed in 215 U. S. 308, 54 L. ed. 208, 30 Sup. Ct. Rep. 101, and Louisville Bridge Co. v. Sieber, 157 Ky. 151, 162 S. W. 804. The plaintiff's decedent was not an employee of the Virginia company, and the rule of the cases cited is not modified by Swice v. Maysville & B. S. R. Co. 116 Ky. 253, 75 S. W. 278. Since the amended petition states a joint cause of action against the Kentucky company and the Virginia company, the claim that there is a separable controversy in the case, justifying removal by the latter company, must fail, and since no facts are alleged in support of the charge that the joinder of the two companies is fraudulent, except that it was made for the purpose of preventing removal to the Federal court, this claimed reason for removal must also fail (Illinois C. R. Co. v. Sheegog, supra, and Chesapeake & O. R. Co. v. Cockrell, 232 U. S. 146, 153, 58 L. ed. 544, 547, 34 Sup. Ct. Rep. 278), and therefore the decision of the District Court is reversed and the case must be remanded to the state court. The petition for removal of this case was filed on the 21st day of July, 1902, and now, fifteen years after, in directing that the case be remanded, we cannot fail to notice the many seemingly needless delays to which it has been subjected, and we direct that appropriate action be take to return it as promptly as possible to the state court. Reversed.

245.US.176

A naturalized citizen of the United States, residing in Iowa, died there intestate, leaving property which passed under its laws to collaterals, some of whom were naturalized citizens residing in other States of the Union, and others natives and subjects of Sweden, residing there. Under the Iowa law, the inheritance taxes upon the portion of the estate accruing to the nonresidents were higher in rate than those upon the portions accruing to the residents. Held, following Petersen v. Iowa, ante, 170, that such discrimination was not violative of either Article VI, or Article II (the favored nation clause), of the treaty with Sweden of April 3, 1783, 8 Stat. 60, renewed and revived by later treaties. 168 Iowa, 511, affirmed.

John Peterson, a native of Sweden, but a naturalized citizen of the United States and a resident of Iowa, there died unmarried and intestate. His property in the state passed under the laws of Iowa to his heirs who were his nephews and nieces or their representatives, some of whom were naturalized citizens of the United States residing in states other than Iowa and the remainder were natives and citizens of the Kingdom of Sweden and there resided. The property in Iowa was administered under the laws of that state and the administrator paid upon the portion of the estate accruing to the nonresident alien heirs the death duties provided by the law of Iowa which were higher than those provided by that law upon the portion accruing to the resident heirs. Section 1467, 1907 Supplement to the Code of Iowa. This controversy arose from a contest over the right of the state to make that charge and the duty of the administrator to pay it, the contention being that the duties in so far as they discriminated against the nonresident alien heirs were void because in conflict with a treaty between the United States and the King of Sweden. Treaty of April 3, 1783, 8 Stat. 60, renewed by article 12 of the Treatry of September 4, 1816, 8 Stat. 240, and revived by article 17 of the Treaty of July 4, 1827, 8 Stat. 354. The case is here to review the judgment of the court below holding that contention to be unsound. In re Peterson's Estate, 168 Iowa, 511, 151 N. W. 66, L. R. A. 1916A, 469. Two clauses of the treaty are relied upon: Article 6, which it is asserted directly prohibited the discriminating charge, and article 2, which by the favored nation clause accomplished a like result. Article 6 is in the margin1 and from its text it plainly appears that it embraces only citizens or subjects of Sweden and their property in Iowa and therefore as we have just pointed out in Petersen v. Iowa, 245 U. S. 170, 38 Sup. Ct. 109, 62 L. Ed. ——, has no relation whatever to the right of the state to deal by death duties with its own citizens and their property within the state. And from the same case it also appears that the favored nation clause has also no application, since that clause in the treaty relied upon, as was the case in the Treaty of Denmark which came under consideration in the previous case is applicable only 'in respect to commerce and navigation.' For the reasons stated in the Petersen Case and in this, it follows that the judgment must be and it is Affirmed.

245.US.1

Where a defendant, under indictment for defrauding the United States of money, deposited stocks with a representative by whom another person was induced to execute the defendant's bail bond on the faith of the deposit as indemnity, and neither surety nor depositary had notice of any defect in the depositor's title, the surety's equity in the deposit was superior to that of the United States, though the stocks were procured with the proceeds of the fraud. In such case, where, after the first bond, the surety executed several renewals in removal and habeas corpus proceedings, the parties repeatedly treating the proceedings and the indemnity agreement as continuing matters, held, by inference that the same understanding attached to a further bond for appearance at trial, and that the depositary's conduct in retaining only shares constituting the deposit, while settling with the defendant for others, confirmed such intention. During the proceedings the shares originally deposited were sold by the depositary, with others belonging to the defendant, and, of new shares purchased with the proceeds, some were selected and retained by the depositary in lieu of those first deposited. Held, that the equity of the surety attached to them. Upon an issue of fact as to whether stock claimed by plaintiff was held by defendant as indemnity for interveners, defendant's sworn answer, filed before the intervention and averring that he so held the (1) stock, was evidence for the interveners as an act, if not as a statement of facts. Whether defendant should have an allowance as trustee is left to the trial court. 229 Fed. Rep. 660, affirmed.

This proceeding began as a suit by the United States to charge the defendant Kellogg with a trust in respect of funds alleged to have been received by him from Greene and to have been obtained from the plaintiff by Greene through his participation in the well-known Carter frauds. United States v. Carter, 217 U. S. 286, 30 Sup. Ct. 515, 54 L. Ed. 769, 19 Ann. Cas. 594. After the evidence had been taken, leave to intervene was granted, on terms, to the administratrix of the estate of James D. Leary, predecessor of the present Leary appellees. 224 U. S. 567, 32 Sup. Ct. 599, 56 L. Ed. 889, Ann. Cas. 1913D, 1029. The fund now in question is four hundred shares of the stock of the Norfolk and Western Railway Company, which the Learys and Kellogg say were held by Kellogg as security to their intestate against his liability upon a bail bond for Greene. A judgment upon the bond has been paid by them. The Circuit Court of Appeals has sustained the Learys' claim and the United States appeals. 229 Fed. 660, 144 C. C. A. 70. Although Kellogg argues the contrary, it may be assumed for the purposes of decision that the United States traces its money into the stock, since Kellogg makes no personal claim to it. On the other hand it appears that before the intestate Leary became bondsman for Greene on December 14, 1899, Kellogg wrote to him on the same day, stating that Greene had placed in his hands three hundred shares of stock of the Delaware, Lackawanna and Western Railroad Company 'as indemnity to you for becoming his bondsman in the matter of the United States against Greene, Gaynor and others, now pending in the district court' to hold until Leary was released from the said bond or to apply in payment of the obligation. We agree with the Circuit Court of Appeals that neither Kellogg nor Leary had notice of any defect in Greene's title. The only question requiring discussion is whether the present stock is held upon the same terms against a later bond that Leary signed. The proceedings in which the bond of December, 1899, was given were for the removal of Greene from New York to Georgia. On February 20, 1900, the United States Commissioner found that there was probable cause. Greene was committed to the marshal and the bond was cancelled. On the same day another bond seems to have been given by Leary that was satisfied on May 28, 1901, when the district judge issued a warrant for removal. On May 21 Kellogg wrote to Leary that it would be necessary 'to renew the bail given by you for Captain Greene, and for which I hold security for your protection,' fixing a time, and adding 'This new bond is to take the place of the old one without additional liability.' The bond was given on May 28 and Greene was enlarged. On June 8 Greene was surrendered into the custody of the marshal in New York and a new bail bond was executed by Leary after having received a letter from Kellogg, dated June 6, saying 'I am obliged to trouble you again to renew the bond in the Greene and Gaynor matter' fixing the time and adding 'The reason for the matter is not that you have to incur any additional liability, but simply to enable them to carry their case to the United States Supreme Court.' The case was taken to this Court and an order of the Circuit Court refusing a writ of habeas corpus was affirmed on January 6, 1902. Greene v. Henkel, 183 U. S. 249, 22 Sup. Ct. 218, 46 L. Ed. 177. Thereafter, on January 20, Leary signed, as surety for Greene, the bond for $40,000, conditioned for Greene's appearance in Georgia, which was forfeited and which the Learys have paid. More words could not make it plainer than it is made by the letters that the 'matter' was regarded by the parties as a continuing one and that the bond of June 8, 1901, was executed on the agreement that the security also should continue. The only natural inference as to the later one of 1902 that took its place is that the understanding remained in force without the requirement of a repetition of the already repeated assurance. This inference is confirmed by the conduct or Kellogg. He had held stocks and bonds for Greene and settled with him, retaining only this stock. Even if his original answer under oath filed before the Learys intervened is not evidence for them as a statement of facts, it was an act as well as a statement and showed that at that time he asserted that the stock was security given by Greene. It is true that the stock was not the same that was mentioned in the first letter. Greene was allowed to make changes and substitutions. But this and other purchases were made with the proceeds of the sale of the first and other stocks before the letters of May and June 1901 were written, and without considering whether in the interest of good faith the stock retained should or should not be attributed to the portion of the funds coming from that previously pledged, the selection and retention of it in place of the other is enough when taken with the agreement disclosed. See National Bank v. Insurance Co., 104 U. S. 54, 68, 26 L. Ed. 693; In re Hallett's Estate, 13 Ch. D. 696. It seems to us unnecessary to add more to the discussion by the Circuit Court of Appeals. Whether Kellogg should receive an allowance as trustee may be left to the District Court. Decree affirmed.

245.US.102

Appellant having brought a number of actions against appellee in the District Court, all cognizable there because arising under a law of the United States, appellee filed in that court a bill ancillary and dependent in form setting up a partial equitable defense to all the actions and other partial defenses to some, and praying that the whole matter be tried in equity and the legal proceedings enjoined. The bill also showed diversity of citizenship. Relief was decreed accordingly in the District Court and Circuit Court of Appeals. Held, that the bill was dependent and ancillary, that the jurisdiction to entertain it was referable to that invoked in the actions at law, and that the decree of the Circuit Court of Appeals was therefore reviewable by appeal. Jud. Code, §§ 128, 241. In a much litigated case, presenting only questions of fact and wellsettled questions of general law, unaffected by any ruling on any federal question, where the federal courts of two circuits had reached the same conclusions of fact independently, this court, being satisfled from the record and assignments, examined in the light of the opinions below, that the rulings were so clearly right that the appeal seemed to be taken without reasohable justification, and therefore for delay, sustained a motion to affirm the decree. 241 Fed. Rep. 357, affirmed.

A motion to dismiss or affirm is presented. In its simplest form the case is this: Laura Eichel as use plaintiff began 18 separate actions at law against the guaranty company in the District Court for the Western District of Pennsylvania, all being cognizable in that court because arising under a law of the United States. The guaranty company, conceiving that it had a partial equitable defense, not admissible at law, which was common to all the cases, and other partial defenses in particular cases, exhibited in that court a bill describing the actions at law, setting forth the defenses, showing that nothing was in controversy beyond the defenses, and praying that the entire matter be examined and adjudicated in a single proceeding in equity and further proceedings at law enjoined. Although showing that the parties were citizens of different states, the bill was framed as a dependent and ancillary bill and the court was asked to entertain it as such in virtue of the jurisdiction already acquired. The court did entertain it and ultimately sustained the equitable defense, partly sustained some of the others, ascertained the amount of the liability of the guaranty company upon the claims set forth in the actions at law, and ordered that this amount, with interest, be paid in satisfaction of those claims. The Circuit Court of Appeals made a small reduction in the amount of the company's liability, made provision for subrogating the company to the rights of Mrs. Eichel against a bankrupt's estate in process of administration, and affirmed the decree as so modified. 241 Fed. 357. Plainly the bill was dependent and ancillary and the jurisdiction to entertain it was referable to that invoked and existing in the actions at law out of which it arose. Jones v. Andrews, 10 Wall. 327, 333, 19 L. Ed. 935; Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329, 333, 8 Sup. Ct. 148, 31 L. Ed. 179; Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633, 17 L. Ed. 886; Krippendorf v. Hyde, 110 U. S. 276, 281, 4 Sup. Ct. 27, 28 L. Ed. 145; Johnson v. Christian, 125 U. S. 642, 645, 8 Sup. Ct. 989, 1135, 31 L. Ed. 820; Carey v. Houston & Texas Central Ry. Co., 161 U. S. 115, 16 Sup. Ct. 537, 40 L. Ed. 638; Cortes Co. v. Thannhauser (C. C.) 9 Fed. 226; Hill v. Kuhlman, 87 Fed. 498, 31 C. C. A. 87. This being so, the decree of the Circuit Court of Appeals is open to review here. See Jud. Code, §§ 128, 241. The motion to dismiss the appeal is therefore denied. The decree, as the record shows, turned upon questions of fact and of general law, unaffected by any ruling upon any federal question. The case is part of a prolonged litigation which is now brought to our attention for the fourth time. Bray v. U. S. Fidelity & Guaranty Co., 225 U. S. 205, 32 Sup. Ct. 620, 56 L. Ed. 1055; Id., 239 U. S. 628, 36 Sup. Ct. 164, 60 L. Ed. 475; Eichel v. U. S. Fidelity & Guaranty Co., 239 U. S. 629, 36 Sup. Ct. 165, 60 L. Ed. 475. It has engaged the attention of the courts of two circuits on several occasions, some of the decisions being reported and others not. Bray v. U. S. Fidelity & Guaranty Co., 170 Fed. 689, 96 C. C. A. 9; U. S. Fidelity & Guaranty Co. v. Bray, 218 Fed. 987, 133 C. C. A. 669; U. S. Fidelity & Guaranty Co. v. Eichel, 219 Fed. 803, 135 C. C. A. 473; Id., 233 Fed. 991, 147 C. C. A. 665; Id. (C. C. A.) 241 Fed. 357. Upon the questions of fact the courts in the two circuits, proceeding independently, have reached identical conclusions. The questions of law are few and well settled. After examining the record in the light of the opinions below and the assignments of error here we are convinced that the rulings were right, so clearly so that the appeal seems to be without reasonable justification, and therefore to have been taken for delay. The motion to affirm is accordingly sustained. Decree affirmed.

244.US.82

An order of the interstate Commerce Commission assigning a cause for hearing upon an issue of reparation is not an order in the sense of § 1 of the Commerce Court Act, 36 Stat. 539; Judicial Code, § 207; and the District Court has no jurisdiction to enjoin the Commission from proceeding with such hearing. Procter& Gamble Co. v. United States, 225 U. S.2 82. Reversed. THE case is stated in the opinion.

Appeal from a decree canceling an order of the Interstate Commerce Commission fixing a hearing of certain complaints made to it by certain coal companies for damages for alleged failure to furnish cars upon demand, and enjoining proceedings upon the complaints. The decree was granted, three judges sitting, upon the petition of appellee, herein referred to as the railroad company. The railroad company is an intrastate and interstate carrier of freight and passengers, and, among other commodities, transports coal on its line, which, during the years 1911, 1912, and 1913, was shipped in interstate commerce by producers thereof on through rates established by the railroad company. Certain coal companies, shippers over the lines of the railroad company, filed petitions before the Interstate Commerce Commission, asking that damages be assessed against the railroad company for an alleged failure to supply a sufficient number of coal cars for their respective shipping needs. The petitions were received by the Commission and were by it treated as substantially presenting but a single complaint, were so numbered as to indicate the fact, and were thereafter in all proceedings treated and disposed of together by one report and order. The railroad company filed an answer to each complaint in which it denied the jurisdiction of the Commission to award damages for failure to furnish coal cars, and averred that, in actions of such character, exclusive jurisdiction is in the courts. In due course a hearing was had by the Commission, and the railroad company objected to any further proceeding before it on the ground of want of jurisdiction, at least as to so much of the complaints of the coal companies as dealt only with damages, and moved that so much of the complaints as dealt with the demand for damages be dismissed. At the argument of the motion counsel for the coal companies expressly declared that so much of the complaints as charged any undue and unlawful discrimination by the railroad company in the distribution of its cars was dismissed, and it was stipulated that the complaints should be considered as so amended as to omit such charges. Thereafter the matter proceeded upon the sole issue of damages for alleged failure to furnish cars upon demand. On January 30, 1915, four members of the Commission filed a report holding that the Commission had jurisdiction to consider the complaints and award whatever damages might be proved. Three members dissented. The reports are attached to the petition. A petition for rehearing was made and denied, and on August 18, 1915, the Commission entered its order assigning the cause for further hearing upon the issue of reparation. The following is the order entered: 'No. 6128—Vulcan Coal & Mining Company v. Illinois Central Railroad Company. No. 6128, Sub-No. 1—St. Louis-Coulterville Coal Company v. Illinois Central Railroad Company. No. 6128, Sub-No. 2—Groom Coal Company v. Illinois Central Railroad Company. 'The above-entitled cases are assigned for hearing October 1, 1915, 10 o'clock A. M., at Hotel Jefferson, St. Louis, Mo., before Examiner Wilson. 'By the Commission.' In the appellee's petition in the district court it alleged that the hearing would be proceeded with unless restrained, that the railroad company would be compelled to attend such hearing, would be put to great expense, and that in all probability an order of reparation would be made; that the railroad company would be forced to defend at great trouble and expense three separate and several suits at law, based on such awards, all which would depend upon the same facts and principles of law, thereby subjecting the railroad company to a multiplicity of suits; and that if reparation should be awarded, it would be placed at great disadvantage in defending suits based on the awards, since the Commission's finding of the ultimate facts is by statute made prima facie correct, and no opportunity is given for a judicial review of the strength and competency of the evidence upon which such a finding rests. A subpoena against the United States was prayed, and an order annulling the order of the Commission, and, pending the hearing, restraint of the Commission and its members from action. The United States, appearing by its counsel, moved to dismiss the petition on the grounds that—(1) The action of the Commission did not constitute an order within the meaning of § 1 of the act entitled 'An Act to Create a Commerce Court,' and that the court, therefore, was without jurisdiction to enjoin or annul or suspend the same in whole or in part. (2) The petition is an attempt in advance of any action or order of the Commission to enjoin it from acting and proceeding on a complaint brought and pending before it. (3) The Act to Regulate Commerce makes an order for the payment of money only prima facie evidence, cuts off no other defense, takes no question from court or jury, nor in any wise denies due process of law; that 'such an order is merely a rule of evidence, and notice of a hearing at which such an order may be entered is not an order within the meaning of § 1 of the act entitled 'An Act to Create a Commerce Court,' etc., approved June 18, 1910 [36 Stat. at L. 539, chap. 309], and the court has no jurisdiction to enjoin, set aside, annul, or suspend the same in whole or in part.' The motion to dismiss was denied and the United States, without waiving it, moved to dismiss the petition on the ground that it was without equity and did not state a cause of action. It was decreed that the Commission had no jurisdiction to hear and determine the complaints of the coal companies, that its order be canceled, and it be permanently enjoined from further proceeding with the hearing of the complaints. The Interstate Commerce Commission appeared in the suit and also moved to dismiss the petition on the grounds—(1) That the order of the Commission was merely a notice of a hearing, and not a reviewable order. (2) That the principal office of the Commission is in Washington, and suit to enjoin any of its proceedings must be brought in the District of Columbia, and not in the eastern district of Illinois. (4) That irreparable injury was not shown. After certain admissions and denials of the petition, the Commission asserted its jurisdiction. In support of the decree the contention of the railroad company is that the Interstate Commerce Commission has no jurisdiction to award damages for failure to furnish cars, and that this was the only issue submitted to the Commission and the only issue decided by it. The Commission having no jurisdiction, the further contention is that the railroad company can restrain its order because it will subject the company to the trouble and expense of the hearing, the probability of an order of reparation against it, and a multiplicity of suits, in which suits it will be confronted by the order of reparation as evidence, without opportunity for judicial review of the strength and competency of the evidence. The contentions and the recited consequences of the order of the Commission are met by opposing ones. The United States asserts that the action of the Commission fixing a day for the hearing of the complaints of the coal companies is not an order within the meaning of § 1 of the Act of June 18, 1910, creating the commerce court (36 Stat. at L. 539, chap. 309), and the subsequent Act of October 22, 1913, abolishing that court and transferring the jurisdiction conferred upon it to the several district courts of the United States (38 Stat. at L. 208, 219, chap. 32, Comp. Stat. 1916, §§ 992, 993). It is only by virtue of those acts, it is said, that the United States can be sued, and it is provided by them that the United States can only be sued in 'cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission.' The Commission makes the same contention and some others, and both it and the United States insist that the action of the Commission was not an order within the meaning of the cited provision. Procter & G. Co. v. United States, 225 U. S. 282, 293, 56 L. ed. 1091, 1095, 32 Sup. Ct. Rep. 761, is adduced as authority for the insistence. The Procter & Gamble Company was the owner of 500 railroad tank cars used for the transportation of its products over the lines of certain railroads, and the company filed a complaint before the Interstate Commerce Commission, complaining of demurrage rules of the railroad companies, which had been approved by the Commission, as unjust and oppressive, and alleging that to enforce them would create preferences and discriminations forbidden by the Interstate Commerce Act The complaint was not sustained and an award of relief was denied. Thereupon the Procter & Gamble Company filed a petition in the commerce court in which the company repeated its accusations against the demurrage rules and charged also that the order of the Commission, dismissing its complaint, was null and void and beyond the power of the Commission, in that it sustained the validity of the rules. The commerce court held that it had jurisdiction of the cause, and that, for the purpose of jurisdiction, the refusal of the Commission to afford the relief prayed for was the exact equivalent of an order granting affirmative relief, and, as a corollary of this power, it was further decided that there was jurisdiction to award pecuniary relief for demurrage if any was illegally exacted. On the merits the court decided against the Procter & Gamble Company. This court reversed the ruling and held that the commerce court had no jurisdiction, as the order of the Commission neither compelled 'the doing or abstaining from doing of acts embraced by a previous affirmative command of the Commission.' The reasoning of the court explored the whole act and omitted no circumstance which could bear on its construction and its efficacy for the purpose for which it was enacted. Considering the first and second subdivisions of § 207 [36 Stat. at L. 1148, chap. 231, Comp. Stat. 1916, § 993], which deals with the jurisdiction of the commerce court, it was said that the first 'provides for the enforcement of orders; that is, the compelling of the doing or abstaining from doing of acts embraced by a previous affirmative command of the Commission;' and that the second, 'dealing with the same subject from a reverse point of view, provides for the contingency of a complaint made to the court by one seeking to prevent the enforcement of orders of the Commission such as are contemplated by the first paragraph. In other words, by the co-operation of the two paragraphs, authority is given, on the one hand, to enforce compliance with the orders of the Commission, if lawful, and, on the other hand, power is conferred to stay the enforcement of an illegal order.' Other provisions of the act were said to be as convincing. It will thus be observed, as said by counsel for the Commission: 'The power of a court 'to stay the enforcement of an illegal order' is, in a sense, reciprocal to its power to enforce compliance with an order of the Commission, 'if lawful.' . . . And just as the district court would have been powerless, in the instant case, to compel the appellee to attend the hearing with respect to which the notice had been given, so also was it without lawful authority to annul that notice or to enjoin the Commission from proceeding in the premises.' And again, as other counsel say, the alleged order was nothing more than notice of a hearing which the railroad company might attend or not, as it saw fit. The notice, therefore, had no characteristic of an order, affirmative or negative. It was a mere incident in the proceeding, the accident of the occasion,—in effect, and, it may be contended, in form, but a continuance of the hearing. The fact that the continuance was to another day and place did not change its substance or give it the character described in Procter & G. Co. v. United States,—one which constrained the railroad company to obedience unless it was annulled or suspended by judicial decree. It is not necessary to pass upon the other contentions of appellants. Decree reversed and cause remanded, with directions to grant the motions to dismiss the petition.

246.US.606

A transgression of its statutory power by an administrative board is subject to judicial restraint, although guised as a discretionary decision within its jurisdiction. In testing the right of injunction against administrative officers, the presumption that they will follow the law, though set up" in their answer, cannot be indulged where an intention to obey an illegal regulation of their superior is not directly disclaimed by them and is admitted by their counsel. The only grounds recognized by the Act of March 2, 1897, c. 358, 29 Stat. 604, as amended, c. 170, 35 Stat. 163, for excluding tea from import, are inferiority to the standard in purity, quality and fitness for consumption; and, where the tea offered is otherwise superior to the standard in value and purity, the fact that it contains a minute and innocuous quantity of coloring matter not found in the sample will not justify shutting it out, notwithstanding a regulation of the Secretary of the Treasury, purporting to be based on the stathte, declares the presence of any coloring matter an absolute ground for exclusion. In the absence of other adequate remedy for the importer, the Tea Board constituted under the Act of 1897, supra, may be enjoined from excluding tea upon a test prescribed by the Secretary of the Treasury but not sanctioned by the statute. 224 Fed. Rep. 359, affirmed.

This is a bill brought by importers of tea to prevent the appellants, a board of general appraisers known as the Tea Board, from applying to tea imported by the plaintiffs tests which, it is alleged, are illegal and if applied will lead to the exclusion of the tea. The bill was dismissed by the District Court, 215 Fed. 456, but the decree was reversed and an injunction ordered by he Circuit Court of Appeals, 224 Fed. 359, 140 C. C. A. 45. The case is within a narrow compass. The Act of March 2, 1897, c. 358, 29 Stat. 604, amended by the Act of May 16, 1908, c. 170, 35 Stat. 163, provides for the establishment of standards 'of purity, quality, and fitness for consumption, of all kinds of teas imported,' etc., § 3 (Comp. St. 1916, § 8788), and makes it 'unlawful * * * to import any merchandise as tea which is inferior in purity, quality and fitness for consumption to the standards' referred to. Section 1 (section 8786). When the tea is entered at the custom house it is compared with the standards by an examiner and if found equal to them in the above particulars it may be released by the custom house; if found inferior it is to be retained. Section 5 (section 8790). But either side may protest and have the matter referred to a board of three general appraisers such as the appellants are. If upon a final re-examination by the board 'the tea shall be found inferior in purity, quality and fitness for consumption to the said standards' the tea must be removed from the country within six months. Section 6 (section 8791). The tea is to be tested in the particulars mentioned 'according to the usages and customs of the tea trade; including the testing of an infusion of the same in boiling water, and, if necessary, chemical analysis.' Section 7 (section 8792). The Secretary of the Treasury is given power to enforce the provisions of the act by appropriate regulations. Section 10 (section 8795). A regulation has adopted a test for the discovery of artificial coloring matter which in brief consists in rubbing tea leaves reduced to dust upon semi-glazed paper with a spatula and examining the smear with a lens. If particles of coloring matter are found a test sheet is submitted to chemical analysis for identification of the coloring matter and as soon as it is identified the tea is to be rejected. It was said below to be undisputed that if the tea in question contains any coloring matter, whether present through design or accident, the appellants pursuing the regulation will keep it out. The standard samples of this tea contain no coloring matter but contain a far greater amount of other foreign substances than does this. This tea is worth nearly four times as much a pound as the standard and the sole cause for rejecting it is the presence of from nine to nineteen parts of Prussian blue in a million of elements otherwise not objected to. It is not contended that the Prussian blue is deleterious. These facts are found by both Courts below. Upon them the plaintiffs (the appellees) say that the Government is attempting to apply criteria not allowed by the law. The Government says that the bill is an attempt to control a board in the performance of its statutory duty and to substitute the judgment of a court for that of the board. No doubt it is true that this Court cannot displace the judgment of the board in any matter within its jurisdiction, but it is equally true that the board cannot enlarge the powers given to it by statute and cover a usurpation by calling it a decision on purity, quality or fitness for consumption. Morrill v. Jones, 106 U. S. 466, 1 Sup. Ct. 423, 27 L. Ed. 267. United States v. United Verde Copper Co., 196 U. S. 207, 215, 25 Sup. Ct. 222, 49 L. Ed. 449. United States v. George, 228 U. S. 14, 21, 33 Sup. Ct. 412, 57 L. Ed. 712. Again, it is true that Courts will not issue injunctions against administrative officers on the mere apprehension that they will not do their duty or will not follow the law. First National Bank of Albuquerque v. Albright, 208 U. S. 548, 28 Sup. Ct. 349, 52 L. Ed. 614. But in this case the superior of the appellants had promulgated a rule for them to follow which is alleged to be beyond the power of the Secretary to make. It is said that the appellants are independent of the Secretary and that it is to be presumed that they will decide according to law, as they say in their answer. But if the avoidance of a direc statement as to their intent did not of itself warrant a presumption that they would obey orders, the admissions of their counsel were enough to make their intent to do so plain. We are brought then to the merits, and we are of opinion that the rule cannot be sustained, notwithstanding that since a former board refused to follow it as it then stood, there have been added clauses intended to save it as a chemical analysis. The regulation makes the presence of any coloring matter an absolute ground for exclusion. But the only grounds recognized by the statute are inferiority to the standard in purity, quality and fitness for consumption, words repeated over and over again in the act. It cannot be made a rule of law that any tea that has an infinitesimal amount of innocuous coloring matter is inferior in those respects to a standard that has a much greater amount of other impurities and is worth only a quarter as much. All extraneous substances are impurities, and the presence of any may be detected in any way found efficient. But one such substance cannot be picked out and accorded supremacy in evil by an absolute rule irrespective of any harm that it may do. We go one step further and add that in view of the facts as to the standard and this tea, the presence of the Prussian blue affords no adequate ground for keeping the tea out. The Secretary and the board must keep within the statute, Merritt v. Welsh, 104 U. S. 694, 26 L. Ed. 896, which goes to their jurisdiction, see Interstate Commerce Commission v. Northern Pacific Ry. Co., 216 U. S. 538, 544, 30 Sup. Ct. 417, 54 L. Ed. 608, and we see no reason why the restrictions should not be enforced by injunction, as it was, for instance, in Bacon v. Rutland R. R. Co., 232 U. S. 134, 34 Sup. Ct. 283, 58 L. Ed. 538. Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 32 Sup. Ct. 340, 56 L. Ed. 570. Santa Fe Pacific R. R. Co. v. Lane, 244 U. S. 492, 37 Sup. Ct. 714, 61 L. Ed. 1275. We are satisfied that no other remedy, if there is any other, will secure the plaintiff's rights. Decree affirmed.

243.US.6

A controversy in a state court involving the power of the United States Court of the Indian Territory to authorize and approve a lease of an Indian allotment subject, however, to the condition that it be approved also by the Secretary of the Interior before becoming operative; and involving also the validity and effect of such a lease so judicially authorized and approved but disapproved by the Secretary, and the power of the SeCretary to disapprove it, Held, reviewable in this court, as concerning matters inherently federal. The United States Court for the Indian Territory in authorizing the guardian of a Cherokee minor to lease her allotment, conditioned the authority upon the approval of the lease by the Secretary of the Interior and ordered the guardian to report the lease when executed to the court and furnish a new bond to secure moneys contemplated to be collected under it. So authorized, the guardian and -ward executed a form of lease containing provisions which conferred upon the Secretary broad power to control its performance, with a discretion to cancel it without legal proceedings, and stipulating that, after approval by him, the lease should be void if an additional bond subject to his approval were not furnished. This instrument was reported to and approved by the court, but some months later was expressly disapproved by the Secretary. Held, (1) That the approval by the court was not absolute but was merely a prerequisite and preliminary to the submission of the lease to the Secretary as required by the original order. (2) That this conclusion was corroborated by the terms of the lease itself and by an allegation made by the plaintiff in-error (the lessee) in its petiA on in this case to the effect that the court in granting authority to make the lease acquiesced in the Secretary's claim that approval by him was prerequisite. (3) That failure to give effect to the lease did not deny full faith and credit to the order of the court authorizing the guardian to make it. (4) That if the Secretary had no power of approval no authority to lease was conferred by the order. 44 Oklahoma, 493; 150 Pac. Rep. 186, affirmed.

The Wellsville Oil Company sued to protect its alleged rights as lessee under an oil and gas lease and to set aside a conflicting lease held by the Alpha Oil Company. Upon demurrer the petition was dismissed for want of cause of action, and the judgment to that effect was affirmed by the court below. To state the undisputed facts which led to the bringing of the suit, and upon which its determination depends, will make clear the issues. Martha Miller, born Everett, owned land which had been allotted to her as a Cherokee of the full blood, and which, through her guardian, under authority of court, approved by the Secretary of the Interior, had been leased in 1905 for the term of her minority for oil and gas purposes, the lease having by assignment passed to the Wellsville Oil Company, also with the approval of the Secretary of the Interior. In 1907 the guardian filed in the United States court, northern judicial district of the Indian Territory, a request for authority to make a new lease to the Wellsville Oil Company for fifteen years. It was stated that the minor was then within one year of majority, that the existing lease would expire at that time, and that the Oil Company, in view of the short time which the lease had yet to run, was engaged in pumping oil night and day and would probably extract all of the oil before the expiration of the lease, to the great detriment and injury of the minor and her property, as the price of oil was very low and the royalties would amount to very little. It was averred that the Oil Company had agreed that it would abandon the 'excessive and damaging pumping' in which it was engaged if it could get a new lease for fifteen years, and proposed to pay a bonus and an additional royalty. The court, after a reference, entered an order authorizing the lease, expressly, however, causing the authority to make it to depend upon the approval of the Secretary of the Interior, and providing that only when the lease was so approved should it take the place of the old and existing lease, which had yet a year to run. The order directed the guardian to report the lease by him made, and to furnish a new bond to secure the bonus and the additional sums to be paid. Acting under this authority, on the form of lease prepared and exacted by the Interior Department, the parties executed the fifteen-year lease. This in the fullest way gave the Secretary of the Interior control over the parties in performing the obligations of the lease, delegated to the Secretary authority to cancel the lease without resort to legal proceedings if he deemed the situation required it, and expressly exacted that, after approval by the Secretary, the lease should be void unless an additional bond, subject to his approval, was given. The lease thus drawn was reported to the court, and was by it approved on July 24, 1907. It was forwarded by the Indian agent in October of that year to the Commissioner of Indian Affairs for submission to the Secretary of the Interior, and was by the Secretary in the same month expressly disapproved. A little more than three years later, the petition to which we have at the outset referred was filed, and some months thereafter, in September, 1911, there was an amended petition. This petition was divided into two counts. The first, after reciting the facts which we have stated as to the making of the new lease and the disapproval of the same by the Secretary, charged that the plaintiff had remained in possession of the property under the new lease; that it worked and developed the same, producing oil therefrom, but that it was unable to dispose of the oil, as the only means for its outlet was through the pipe line of the Prairie Oil Company, and that company, under the influence of the Secretary of the Interior, had refused to pay for the oil on the ground of the nonexistence of the lease. It was further charged that some time after Martha Miller, the lessor, had become of age, she had leased the property to the Alpha Oil Company for gas and oil purposes, that that company had fraudulently interfered with the exercise of the rights of plaintiff under its lease and had ousted the plaintiff of possession and had wrongfully held possession until 1910, in which year it had abandoned the property. It was alleged that, following this abandonment, the plaintiff had retaken possession and continued to produce oil and transmit it through the pipes of the Prairie Oil Company without pay, as in the previous period. It was charged that the fifteen-year lease was valid, that the Secretary of the Interior was wholly without authority of law to disapprove the same, that while the court, in sanctioning the lease, had acquiesced in his claim of authority to do so, that acquiescence was nothing worth, and the lease, as made, was valid notwithstanding the disapproval of the Secretary. There was an inconsistent claim in the petition that the court, by approving the lease as presented by the guardian prior to its transmission to the Secretary of the Interior for his action, had virtually sanctioned the lease, upon the theory that the approval of the Secretary was not necessary. The second count asserted, under the theory of the validity of the lease, the right to the proceeds of the oil in the hands of the Prairie Oil Company, and even upon the hypothesis that the lease was invalid, the right to be reimbursed a very large amount of expenses and costs of improvements which it was alleged had been made in working and developing the property. The prayer was for a judgment upholding the validity of the fifteen-year lease, and annulling the lease to the Alpha Oil Company, and awarding the proceeds of oil in the hands of the Prairie Oil Company to the plaintiff. It was further prayed, under the hypothesis that the fifteen-year lease should not be upheld, that there be a judgment for the costs and expenses, as averred in the second count. The petition was demurred to on the ground that it stated no cause of action. The demurrer was sustained, and as the plaintiff elected to stand upon its pleading, a judgment was entered dismissing the petition on the merits. By order of court and consent of parties it came to pass that the proceeds of the oil which had been hitherto received by the Prairie Oil Company were subjected to the order of the court for ultimate distribution, and an agreement was had concerning the right of the Prairie Oil Company to retain the proceeds of the oil produced by the operations under the lease until it became possible to distribute the smae by a final disposition of the cause. The case was then taken to the court below. It was there decided: (a) That the plaintiff was not in a position to invoke the equitable powers of the court for the purpose of enforcing the fifteen-year lease because it appeared that the lease had been procured by the wrongdoing of the petitioner in excessively exercising its right to pump as a means of forcing the making to it of a new lease for a long period; and (b) that in any event, as the new lease had, by the order of the court, been in express terms subjected, as a condition precedent, to the approval of the Secretary of the Interior, the failure of that officer to so approve, indeed, his express disapproval, had prevented the power to make the lease from taking being, and therefore there was no foundation whatever upon which to base the claim that the lease had been lawfully executed, and it was held that there was hence no necessity for passing upon the question of legal power in the Secretary to approve or disapprove. In other words, it was decided that if the Secretary had power, the failure to approve was an end of the controversy; if he had not the power, the same result followed, since the court which granted the right had, in express terms, permitted it to be exercised only upon the precedent condition that its exertion was approved by the Secretary. In addition the court held that the contention that because the form of lease as drawn was reported to the court, which had given the authority to make it, subject to the approval of the Secretary of the Interior, and received its approval before action by the Secretary, therefore the condition of precedent action of the Secretary was waived or withdrawn, was without foundation. The court did not pass upon the question raised upon the second count concerning the right to recover costs and expenses if the lease were held not to exist, upon the ground that, as the petitioner was in possession, that question might be reserved for ulterior consideration. 44 Okla. 493, 145 Pac. 344. Following this judgment the trial court distributed the money which had accumulated in its custody by virtue of the agreement previously made as well as a further sum derived from the delivery of oil from the leased property which was in the hands of the Prairie Oil Company. This distribution was made upon the basis of the nonexistence of the fifteen-year lease, of the right of Martha Miller to possession subject to the lease by her made to the Alpha Oil Company, on a ratio which was agreed upon between the two interested parties, and there was a judgment against the Wellsville Oil Company for costs. The appeal of that company, taken from this order, was dismissed by the court below on the ground that the order substantially embraced only a distribution of funds which had been virtually directed to be distributed by the previous judgment. In thus disposing of the case it was held that the assignment of error made by the Wellsville Oil Company concerning the failure to allow it costs and expenses, as urged in the second count of its petition, was not foreclosed because, being in possession, as previously held, that subject might be litigated when an attempt to oust the possession was made. In this connection the court observed that while it was true a recital was contained in the order of distribution that Martha Miller was entitled to possession as owner, as no process was directed to issue giving effect to this decree, it was a mere surplusage, which left the question open. ——Okla. ——, 150 Pac. 186. All consideration of error committed in refusing, in either judgment, to allow the costs and expenses asserted in the second count of the petition, may be at once put aside, as it is declared in the argument for the plaintiff in error that this particular phase of the case is not urged. Moreover, before coming to consider the merits of the errors relied upon, we observe that because of the Federal nature of the court which authorized the lease whose validity was involved, the subject-matter with which the case dealt (Indian land), and the asserted want of power in the Secretary of the Interior to disapprove the lease, and the further assertion that the court had no authority in any event to subject the lease to the approval of the Secretary, we think the issues involved so concern matters of inherently Federal nature as to afford jurisdiction. Swafford v. Templeton, 185 U. S. 487, 46 L. ed. 1005, 22 Sup. Ct. Rep. 783; Fritzlen v, Boatmen's Bank, 212 U. S. 364, 53 L. ed. 551, 29 Sup. Ct. Rep. 366; Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 60 L. ed. 1172, 36 Sup. Ct. Rep. 708. We therefore overrule the motion to dismiss. Without following the elaborate argument of the plaintiff in error and the various propositions which that argument advances, we content ourselves with saying that every proposition relied upon will be embraced and disposed of by these considerations: First. The contention that the court which authorized the lease retracted the condition precedent of approval by the Secretary of the Interior which it had previously imposed because it approved the executed lease before it had been presented to the Secretary, when it was reported to the court by the guardian in conformity with previous directions to that effect, is plainly without merit: (a) Because, as pointed out by the court below, the report of the lease and its approval were mere prerequisite and preliminary steps to the submission of the lease to the Secretary for his action in order that the condition precedent which the court had established might be brought into play; (b) because the contention is directly in conflict with the express terms of the lease which was submitted and approved, every condition of which made it manifest that it was drawn with reference to the power of the Secretary to approve or disapprove the same, and that its execution was subject to all the conditions, limitations, and restrictions resulting from that situation; (c) because the contention is directly in conflict with the petition which, as we have already pointed out, in express terms alleged that the Secretary asserted the power to approve, and that the court, in giving the authority, acquiesced in such assertion of authority as a prerequisite. Second. The contention that the failure to give effect to the lease was a denial of full faith and credit to the order of the court authorizing the guardian to make the lease involves on its face a misconception and comes to saying that because the condition precedent which was imposed by the order of authorization, that is, the approval of the Secretary, was enforced, thereby there resulted a failure to give effect to the order. In other words, the argument is, that because the court gave full effect to the judgment, it failed to carry it out. In fact, on the very face of the petition, of the assignments of error, and of all the arguments, it is apparent that they rest upon the plainly erroneous assumption which we thus point out, since they all but assert that the power to execute the lease, which was given only upon the precedent condition of approval by the Secretary, should have been upheld despite the fact that such approval was never obtained. As the petition averred that, acquiescing in the possession by the Secretary of legal authority to approve the lease, the court gave the right to make it, only conditioned upon such approval, it follows that the averment that there was no legal power in the Secretary to approve was negligible, since it but asserted that the power to make the lease never arose. Affirmed.

244.US.276

Under the doctrine established by Railroad Company v. Lockwood, 17 Wall. 357, and many cases decided since, a person traveling by railroad as a caretaker of live stock on a "free" or "drover's" pass is a passenger for hire as to whom a stipulation that the carrier shall not be liable for personal injuries caused by its negligence is void. As applied to caretakers of live stock, § 1 of the Hepburn Act of June 29, 1906, uses the term "free pass" in the sense which established custom had given it and judicial determination had sanctioned long before the act, viz., as meaning not a gratuitous pass but one issued for a consideration constituting the caretaker a passenger for hire, within the doctrine of the Lockwood Case. Charleston & Western Carolina Ry. Co. v. Thompson, 234 U. S. 576, distinguished. Where a connecting carrier, sued for personal injuries by a person traveling on a drover's pasg, based its defense on a release of liability for negligence contained in the contract of carriage issued by, and in accordance with the tariffs of, the initial carrier, under the Carmack Amendment, Held that it was estopped from claiming also that under its own tariff the issuance of such passes was forbidden and unlawful and that therefore such traveler was unlawfully upon its train. A provision in a tariff that "free or reduced transportation shall not be issued for shippers or caretakers in charge of live stock shipments, and such shippers or caretakers shall pay full fare returning," is construed as implying that such transportation will be allowed to the destination of the shipment, but not for tho return trip of the caretaker. When connecting interstate carriers, in accordance with tariffs-of the initial carrier duly filed and published, contract to carry a shipment of live stock with a caretaker for a specified rate in money, the carriage quoad the caretaker is a carriage for money, part of the total rate, and the mere fact that the part attributable to the caretaker is not stated separately in a passenger tariff does not render the contract to carry him invalid under the Act to Regulate Commerce. Separation of the rate in such a case is an administrative matter affecting the form of tariffs, which is committed to the Interstate Commerce Commission by § 6 of the Commerce Act, as amended, and concerning which the courts will not interfere in advance of application to the Commission. 222 Fed. Rep. 802, affirmed.

The judgment obtained in this case by the plaintiff in the district court, W. C. Chatman, and affirmed by the circuit court of appeals for the fourth circuit, is here for review on writ of error. On December 1, 1911, the plaintiff below (hereinafter designated as the plaintiff) delivered to the Pennsylvania Railroad Company at Jersey City a carload of horses to be carried to Hertford, North Carolina, and was tendered by an agent of the company for his signature the customary 'uniform live stock contract' of the Pennsylvania Company, the essential provisions of which are printed in the margin.1 This contract was retained by the company, but from it was detached a 'coupon' which was given to Chatman, containing in substance an acknowledgment that he had delivered live stock of the kind and nature therein described, consigned to W. C. Chatman, destination Port Norfolk, Virginia, for Hertford, North Carolina, 'W. C. Chatman, man in charge.' Without other pass or ticket than this 'coupon,' and without other payment than the published tariff on the carload of stock, the Pennsylvania Railroad Company carried the plaintiff, with his carload of horses, on a freight train to Norfolk, Virginia, where the car was delivered to and accepted by the defendant company for transportation to its destination. The plaintiff testifies that defendant's conductor saw him and knew he was on the car up to the time the accident complained of occurred. The car in which the horses and the plaintiff were being carried was derailed on defendant's line, and the plaintiff, being injured, sued for damages and secured the judgment which we have before us. The negligence of the defendant is not disputed. On this record the defendant claims two defenses, the first of which is: That the plaintiff is not entitled to recover, because when injured, he was traveling on a free pass issued pursuant to the terms of the live-stock contract in which he had released the carriers from all liability for any personal injury which he might sustain, thus bringing his claim within the authority of Northern P. R. Co. v. Adams, 192 U. S. 440, 48 L. ed. 513, 24 Sup. Ct. Rep. 408. In New York C. R. Co. v. Lockwood, 17 Wall. 357, 384, 21 L. ed. 627, 641, it was decided that a person traveling on a 'drover's pass,' issued upon a live-stock contract precisely similar in its terms to that which we have in this case, was a passenger for hire, and that a release from liability for injuries caused by the carrier's negligence was void because a common carrier could not lawfully stipulate for such exemption. This decision was rendered in 1873, and has been frequently approved: Grand Trunk R. Co. v. Stevens, 95 U. S. 655, 24 L. ed. 535, 10 Am. Neg. Cas. 638; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana), 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469; Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 505, 44 L. ed. 560, 564, 20 Sup. Ct. Rep. 385; Santa Fe, P. & P. R. Co. v. Grant Bros. Constr. Co. 228 U. S. 177, 184, 57 L. ed. 787, 791, 33 Sup. Ct. Rep. 474; George N. Pierce Co. v. Wells, F. & Co. 236 U. S. 278, 283, 59 L. ed. 576, 581, 35 Sup. Ct. Rep. 351. This court continues of the opinion expressed by it in 1899, in Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 505, 44 L. ed. 560, 564, 20 Sup. Ct. Rep. 385, that the Lockwood Case 'must be regarded as establishing a settled rule of policy.' But the plaintiff in error claims that this rule is no longer applicable to such a case as this we are considering, for the reason that, while the plaintiff, as the shipper of the stock, was within the exception of § 1 of the amendment to the Act 'to Regulate Commerce' of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1916, § 8563), prohibiting the issuance of any 'interstate . . . free pass . . . except . . . to necessary caretakers of live stock, poultry, and fruit,' yet this exception permitted him to travel free of charge upon a 'free pass or free transportation,' and not as a passenger for hire on a free pass, which would be a contradiction in terms. The Lockwood Case shows that live-stock contracts such as we have here, providing for the transportation of caretakers of stock on free passes, were in use by carriers as early as 1859 (17 Wall. 357, 365), and that they have continued in use up to this time is apparent from the decisions hereinbefore cited, from the cases at bar, and from many cited, from the case at bar, and from many C. R. Co., 238 Fed. 449. Notwithstanding the fact, as we have seen, that such transportation has been declared by a long line of decisions not to be 'free' in the popular sense, but to be transportation for hire, with all of the legal incidents of paid transportation, the carriers of the country have continued to issue it and to designate it as 'free.' With this legal and commercial history before us we must conclude that the designation 'free pass,' as applied to transportation issued or given by railroad companies to shippers and caretakers of stock, had acquired a definite and well-known meaning, sanctioned by the decisions of this court and widely by the decisions of the courts of the various states, long prior to the enactment of June 29, 1906, and that, therefore, Congress must be presumed to have used the designation 'free pass' in the sense given to it by this judicial determination when, in § 1 of that act, by specific exception, it permitted the continuance of the then long established custom of issuing free transportation or passes to shippers or caretakers of live stock. Kepner v. United States, 195 U. S. 100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797, 1 Ann. Cas. 655; Lawder v. Stone, 187 U. S. 281, 293, 47 L. ed. 178, 183, 23 Sup. Ct. Rep. 79; Sutherland, Stat. Constr. § 333. It results that the 'settled rule of policy' established by the Lockwood Case, and the decisions following it, must be considered unmodified by the Act to Regulate Commerce; that the plaintiff in charge of his stock, traveling upon a pass permitted to be issued by that act, was a passenger for hire, and that defendant's first claim must therefore be denied. The claim of the defendant that the plaintiff was unlawfully upon its train because its published tariff did not allow the issuing of such a pass as that which the plaintiff was using when injured is without merit. The extract from the defendant's tariff, relied upon to sustain this claim, reads: 'Free or reduced transportation shall not be issued for shippers or caretakers in charge of live-stock shipments, whether carloads or less, and such shippers or caretakers shall pay full fare returning.' It is sufficient answer to this claim to say that the railroad company is here defending under the release from liability contained in a contract of carriage, issued as required by law (§ 7 of the Act of June 29, 1906, 34 Stat. at L. 595, chap. 3591), pursuant to the published tariffs of its connecting, the initial, carrier, the Pennsylvania Railroad Company, and it will not be heard in the courts to urge the inconsistent defense that its own tariff made unlawful this contract on which, in the alternative, it relies. To this we add that passes for caretakers, not only to destination, but returning to point of shipment, were formerly general (Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362), and in some parts of the country are still issued (Kirkendall v. Union P. R. Co. 118 C. C. A. 383, 200 Fed. 197, 200), and that, in our opinion, the language of the notice quoted, while obscurely worded, implies that such passes will be issued by the defendant to destination of the shipment, and was intended as notice to shippers that return passes would not be allowed. The meaning now claimed for this notice would have been unmistakably expressed without the final clause, 'and such shippers or caretakers shall pay full fare returning.' Why 'returning' if full fare were also to be paid 'going?' Tariffs must not be made cunningly devised nets in which to entangle unsuspicious or inexperienced shippers. The second defense of the railroad company is in the alternative, and must be considered because its first defense has failed. This claim is that, under the Interstate Commerce Law, payment for the transportation of passengers for hire could be made only in money, and at a rate stated in a tariff filed and published in the manner required by law; that no separate payment for plaintiff's transportation was made in money, and the consideration for it must be found, if at all, incorporated in the rate charged for the stock, or in the service which he was to render in caring for it in transit; and that, as neither of these was separately stated in any filed and published tariff, the plaintiff's presence upon the car was unlawful and he should not recover for injuries sustained. In the consideration of this second claim of the defendant these facts, appearing of record, are decisive: The defendant relies for its defense upon the terms of the live-stock contract entered into between its connecting carrier, the Pennsylvania Company, and the plaintiff; and, averring in its answer that it received the shipment of horses 'in accordance with the terms of said contract,' it claims immunity from liability for damages to the plaintiff under the declaration of that contract that: 'In consideration of the carriage of the undersigned (plaintiff) upon a freight train of the carrier or carriers named in the contract without charge other than the sum paid or to be paid for the carriage . . . of the live stock . . . the plaintiff assumed the risk of accident and released said carrier or carriers from all liability to him for any injury which he might sustain.' While the record is not as clear as could be wished, the excerpts which it contains from the filed tariffs of the Pennsylvania Company and the live-stock contract, both introduced in evidence by the defendant, justify the conclusion, certainly as against the defendant, that the contract was a part of the tariffs of the Pennsylvania Company, filed and published according to law, and that the defendant is bound by its terms. Treating this live-stock contract as a part of the lawfully published tariffs of the Pennsylvania Company, under which the contract for the carriage of the plaintiff was made, and by which the defendant confesses itself bound, it is clear that such tariffs show the two carriers declaring that, for the published rate, payable in money, the plaintiff's carload of stock and the plaintiff himself, as a caretaker, would be carried on freight trains from Jersey City to the North Carolina destination; and, as we have seen, the law declares that a caretaker so carried is a passenger for hire, against whom the release of liability on which the defendant relies must be treated as unreasonable and void. The objection that the published tariff of the Pennsylvania Company did not specify how much of the stipulated payment by the plaintiff should be treated as payment for the transportation of the stock, and how much for the transportation of the caretaker, and that the payment for the carriage of the plaintiff was not separately stated in a passenger tariff, cannot be considered in this case, for the reason that the Act to Regulate Commerce (§ 6, as amended June 29, 1906, June 18, 1910 [36 Stat. at L. 548, chap. 309, § 9], and August 24, 1912 [37 Stat. at L. 568, chap. 390, § 11, Comp. Stat. 1916, § 8569]) commits to the Interstate Commerce Commission the determining and prescribing of the form in which tariff schedules shall be prepared and arranged, and this is an obviously administrative function with which the courts will not interfere in advance of a prior application to the Interstate Commerce Commission. Atchison, T. & S. F. R. Co. v. United States, 232 U. S. 199, 221, 58 L. ed. 568, 577, 34 Sup. Ct. Rep. 291; Texas & P. R. Co. v. American Tie & Timber Co. 234 U. S. 138, 58 L. ed. 1255, 34 Sup. Ct. Rep. 885. It results that the second claim of the defendant must be rejected because the fare of the plaintiff was paid in money, pursuant to published tariffs, which clearly showed the terms of the shipment of the stock, with transportation for the plaintiff included, in a form which, in the state of this record, must be considered as having been satisfactory to the Interstate Commerce Commission, to which the determination of such form was committed by law. The claim that Charleston & W. C. R. Co. v. Thompson, 234 U. S. 576, 58 L. ed. 1476, 34 Sup. Ct. Rep. 964, rules this case, cannot be allowed, for the sufficient reason that the plaintiff in that case was found to be traveling upon a gratuitous pass, issued without consideration, to a member of the family of an employee. Behind such a pass there lay no such background of court decision and of railroad practice as we have here, giving definite interpretation to the statute as applied to 'caretakers' passes,' and therefore that case fell without the scope of the Lockwood decision and within the principle of Northern P. R. Co. v. Adams, 192 U. S. 440, 48 L. ed. 513, 24 Sup. Ct. Rep. 408, and Boering v. Chesapeake Beach R. Co. 193 U. S. 442, 48 L. ed. 742, 24 Sup. Ct. Rep. 515. The judgment of the Circuit Court of Appeals is affirmed.

245.US.48

Decided on the-authority of Smith v. Interstate Commerce Commission, ante, 33. Affirmed.

This case was submitted with Smith v. Interstate Commerce Com'n, 245 U. S. 33, 38 Sup. Ct. 30, 62 L. Ed. ——, and Id., 245 U. S. 47, 38 Sup. Ct. 34, 62 L. Ed. ——(Nos. 337 and 339). Like them it is a proceeding to compel appellant to* answer certain questions asked him by the Interstate Commerce Commission. It was based on a petition like the petitions in those cases to which there was a like reply. The court entered an order requiring appellant to answer the following questions asked by counsel for the Commission: 'I will ask you if you distributed in the state of Alabama on behalf of the Louisville & Nashville Railroad, campaign funds favoring the election of a certain candidate? 'I show you Ledger H, folio 454, from the records of the Louisville & Nashville Railroad, showing certain vouchers sent you in Alabama for various amounts, and will ask you how you expended the money represented by these vouchers, taking the first voucher as a beginning. 'I will ask you whether or not you have personal knowledge of funds of the Louisville & Nashville Railroad and of the Nashville, Chattanooga & St. Louis Railway used to the extent of thousands of dollars for political campaign purposes in the state of Alabama. 'I will ask you do you know of any campaign funds being expended by the Louisville & Nashville Railroad and the Nashville, Chattanooga & St. Louis Railway in the state of Alabama through any attorney under a subterfuge of paying the attorney a bill for professional services? 'Do you know of any funds of the Louisville & Nashville Railroad expended in the state of Alabama for political purposes and charged on the books of the carrier to operating expense? 'I will ask you if you know of any funds of the Louisville & Nashville Railroad or the Nashville, Chattanooga & St. Louis Railway expended in the state of Alabama for political purposes and charged on the books of these carriers or on the books of either carrier to construction. 'I will ask you if you have any knowledge of funds of the Louisville & Nashville Railroad or the Nashville, Chattanooga & St. Louis Railway used for political campaign purposes in the state of Tennessee. 'Do you know of any funds of the Louisville & Nashville Railroad expended in the state of Tennessee for political campaign purposes and charged on the books of that carrier to operating expense or construction account?' The questions are similar to those passed on in the other two cases, and the order is Affirmed.

244.US.397

The decision of the Supreme Court of Louisiana in State v. Tensas Delta Land Co., 126 Louisiana, 59, that the State had no interest or authority entitling it to intervene in a suit brought by the Tensas .Basin Levee Board for the recovery of lands which the Board had conveyed after receiving title from the State, is conclusive on this court, in the absence of any later state decision or statute modifying its effect. The Act of Louisiana of August 19, 1910, making it the duty of the Attorney General, upon the request of the Governor, to represent the State, or any political agency or subdivision thereof, in suits involving land belonging to the State or any such agency or subdivision, etc., did not operate to divest the Levee Board of its authority over suits to recoverland and confer it, through the Governor, upon the Attorney General; as concerns the Board, its effect was merely to authorize the Attorney General, at request of the Governor, to represent the Board in the litigation. This construction of the Act of August 19, 1910, agrees with the practical, contemporary construction placed upon it by two Attorneys General of the State, which the court regards as persuasive authority as to its true meaning. Generally speaking, the authority of a court to make new parties to a suit, especially after decree, rests in its sound discretion, which, except for abuse, can not be reviewed upon appeal or error, or indirectly, by mandamus. With exceptions not here applicable, no person may review a judgment . by appeal or writ of error who is not a party or privy to the record. Article 571 of the Code of Practice of Louisiana, pr6viding: "The right of appeal is given not only to those who ar'- parties to a cause in which a judgment has been rendered against them, but also to third persons not parties to said suit when such third persons allege that they have been aggrieved by the judgment," can have no application to an equity suit in the federal courts. 217 Fed. Rep. 757, affirmed.

By act of its general assembly in 1886, amended in 1888, the state of Louisiana created the Tensas Basin Levee District for the purpose of providing a system of levees and other works to aid in protecting the lands within its boundaries from floods and overflow. The act provided for the appointment of a levee board of commissioners to have charge of the affairs of the district, and constituted this board a corporation, with power to sue and be sued, and to sell, mortgage, pledge, and otherwise dispose of lands which the state donated and caused to be conveyed to the board. In 1898 the levee board sold to the Tensas Delta Land Company, Limited, a large acreage of the land thus acquired, and executed conveyances for it. Eleven years later, in 1909, suit was brought by the attorney general of Louisiana, in the name of the state, claiming that the sale of 1898 was fraudulent and void, and praying that it should be set aside and that the state should be decreed to be the owner of the property. Such proceedings were had in the case that the supreme court of Louisiana held (State v. Tensas Delta Land Co. 126 La. 59, 52 So. 216) that the only proper party plaintiff in such a suit was the levee board, and that, the state being without authority to maintain it, the case must be dismissed. After the dismissal of the suit of the state, the levee board brought suit against the Tensas Basin Land Company, Limited, in a district court of Louisiana, upon the same cause of action stated in the prior petition, which case was removed to the United States district court for the appropriate district. The petition was there given the form of a bill in equity, and, as amended, a demurrer to it by the defendant was sustained. On appeal this decision was reversed and the case was remanded for further proceedings, but before the time allowed for answer had expired, the defendant appeared and informed the district court that $100,000 had been paid in settlement of the case agreed upon between the parties, and moved the court to dismiss the suit. This motion was filed on July 22, 1913, and a rule was forthwith issued to the plaintiff to show cause on the first day of the next term of the court (October 20th) why the motion should not be granted. The return of service of this rule shows personal service on the attorney general as solicitor for the levee board, and acknowledgment of service by the board itself. On August 5 the board, appearing by its president, answered the rule to show cause, averring that it had 'apprised its attorney of record' (the attorney general of the state) 'of the said settlement,' and, admitting the allegations of the motion, prayed that the suit be forthwith dismissed at its cost. The attorney general for the state, not satisfied with the settlement, on October 6th filed a motion, which he signed 'R. G. Pleasant, Attorney General, State of Louisiana, and Attorney of Record for Complainant.' In this quite anomalous paper he averred somewhat rhetorically that the settlement made by the levee board for which he was attorney, was a 'condoning and compromising' of a fraud to which the court should not assent, that he was acting in the case under authority of an act of the general assembly of the state and by order of the governor, to whom alone he was responsible, and 'that the complainant could not compromise this suit, nor dismiss it without the governor's consent.' He prayed that the motion to dismiss be denied, the agreement of settlement disregarded, and that the case be set down for early trial. The motion to dismiss came on for hearing on October 20th, but the court deferred consideration of it until the next day, and caused a telegram to be sent to the attorney general in order that he might have full opportunity to be present and be heard, but he did not appear in person or by representative, and thereupon the court heard the evidence and 'ordered, adjudged, and decreed that said compromise' . . . 'be and the same is recognized by this court as having the effect of the thing adjudged and as settling all the issues in this case,' and dismissed the suit. It cannot escape notice that there is no allegation contained in any paper filed by the attorney general that the levee board, in compromising the controversy and suit, did not act in perfect good faith, nor is there any challenge of the character or competency of the members of the board. After this entry of dismissal no further action was taken by the attorney general until on the 6th day of the following April, when he presented to the district court a 'petition of the United States of America on the relation of the state of Louisiana,' praying that the state be permitted to intervene and appeal from the judgment ratifying the compromise and dismissing the suit. The district court denied this petition for leave to intervene and appeal, and thereupon the attorney general filed in the circuit court of appeals for the fifth circuit a 'petition for writs of mandamus and certiorari,' in which he prayed that court to order that the state of Louisiana be allowed to intervene in the district court and to appeal the case, and that it order that a transcript of all records be sent up to it for review. The circuit court of appeals denied this petition, assigning two reasons for its action, viz.: (1) Because the supreme court of Louisiana, on full consideration, had decided that the state was without real or beneficial interest in the lands in controversy, which decision must be controlling in that court; and (2) Because the state was not a party to the record in the district court, 'and one who is not a party to a record and judgment is not entitled to an appeal therefrom.' This decision is now here for review on certiorari. This plain statement of the history of this litigation so argues against the claims of the petitioner as to make them in appearance, at least, unsubstantial to the point of being frivolous. The supreme court of Louisiana, considering the statutes of its own state, held, in the case in which the state sought to set aside for fraud the same sale of the same lands involved in this litigation (126 La. 59, 52 So. 216), that the 'legislature vested the absolute title to the lands in controversy in the board of commissioners of the Tensas Levee District, with full power to sell the same on such terms as the board might deem proper [and], also vested in said board full power to sue and be sued, and to stand in judgment in all matters relating to their gestion and trust.' 'Most assuredly,' also says the court, 'the legislature has devested the state absolutely of all beneficial interest in said lands, and transferred same to the said board of levee commissioners.' And as it 'has vested the power to sue and be sued in the board of commissioners of the Tensas Levee District, and has vested no such co-ordinate power in the governor or attorney general, we are of the opinion that the institution of this suit in the name of the state is unauthorized.' This decision determining the effect of the state statutes, where no claim of Federal right was involved, is accepted as conclusive by this court, and unless it has been modified by statute (there has been no modifying decision) the application of the state to intervene and to appeal was properly denied. To the seemingly insurmountable barrier to the claims of the petitioner presented by this supreme court decision we must add that the state was not at any time a party to this record, and that its first application for leave to intervene and to appeal was long after the term at which the decree of dismissal was rendered, and within a few days of the expiration of the time within which even 'a real party in interest' would have been allowed an appeal. With exceptions not even remotely applicable to a case such as we have here it has long been the law, as settled by this court, that 'no person can bring a writ of error (an appeal is not different) to reverse a judgment who is not a party or privy to the record' (Bayard v. Lombard, 9 How. 530, 551, 13 L. ed. 245, 254); and in Re Leaf Tobacco Board of Trade, 222 U. S. 578, 56 L. ed. 323, 32 Sup. Ct. Rep. 833, it was announced, in a per curiam opinion, as a subject no longer open to discussion, that 'one not a party to a record and judgment is not entitled to appeal therefrom,' and that a refusal after decree to permit new parties to a record cannot be reviewed by this court directly on appeal, or indirectly, by writ of mandamus, under circumstances such as were there and are here presented. Two statutes of Louisiana are relied upon by counsel for petitioner to avoid the obvious and seemingly conclusive result of these decisions by this court and by the supreme court of Louisiana. The first of these statutes is article 571 of the Code of Practice of Louisiana, which reads: 'The right of appeal is given not only to those who are parties to a cause in which a judgment has been rendered against them, but also to third persons not parties to said suit, when such third persons allege that they have been aggrieved by the judgment.' It is urged in argument that in suits in the United States courts which originate in Louisiana, this statute permits an appeal by strangers to the record 'who may allege that they have been aggrieved by the judgment,' and the decision of the supreme court of Louisiana in 126 La. 59, 52 So. 216, supra, holding that the state cannot 'be aggrieved' by this judgment because it is without beneficial interest in the lands which are the subject-matter of this litigation, and is without authority to institute a suit for their recovery, is disposed of by saying that it is the practice in Louisiana courts to allow appeals by strangers to the record upon mere allegation of interest, leaving the validity of such allegation to be examined by the appellate court. This claim cannot be seriously entertained in the face of the long time perfectly settled law that equity suits in Federal courts and the appellate procedure in them are regulated exclusively by Federal statutes and decisions, unaffected by statutes of the states. Textbook citations will suffice: Street, Fed. Eq. Pr. §§ 97 and 98; Simkins, Fed. Eq. Suit, chap. 1. The other statute relied upon by the petitioner was enacted by the general assembly of Louisiana on August 19, 1910, after the decision by the supreme court referred to, and reads: 'Be it enacted by the general assembly of the state of Louisiana, that it is hereby made the duty of the attorney general of the state, upon the request to the governor, to represent the state or any political agency or subdivision thereof, in any suit in any court involving title to any land or real property belonging to the state of Louisiana or any of its political agencies or subdivisions, whether the title to said land or real property is vested in or appears in the name of the state, or in the name of any of its political agencies or subdivisions.' The claim made by the attorney general for the state now is that this act 'withdrew the authority theretofore granted to the levee board by § 3 of the Act of 1886 to sue in such cases as this, with all of the rights appurtenant to the right to sue, and delegated it, through the governor, to the attorney general.' This is a large repealing effect by implication to be asserted for a statute so worded and apparently so simple, and that such meaning was not given to it by the present attorney general's predecessor in office, who was charged with the execution of the statute at the time this litigation was commenced and almost immediately after its enactment, is clear from these facts appearing of record: The suit by the levee board as petitioner was commenced after this Act of August 19, 1910, was passed, and yet the petition, signed by the attorney general as one of the solicitors of the board, alleges that it was commenced by virtue of a resolution adopted by the board on the 14th day of the preceding July (thus reciting an authority adopted pursuant to power which it is now claimed had been withdrawn from the board). The petition also recites that the attorney general (predecessor of the present incumbent) appears in the suit pursuant to the authority and direction of the governor, 'to represent said board of levee commissioners . . . in the prosecution of said suit;' that the board is a corporation with power to sue and be sued, to take title to and to sell lands under the same laws which had been construed by the Louisiana supreme court (126 La. 59, 52 So. 216), and it prays for a decree recognizing your petitioner (the levee board) to be the owner of all of said lands so fraudulently and illegally conveyed.' The attorney general, with another, signs the petition as attorney 'of the board of levee commissioners of the Tensas Basin Levee District,' and when the case was removed to the United States district court the petition was recast into a bill in equity in which, after repeating the allegations and prayer of the original bill, the then attorney general adds that the levee board has, 'in compliance with the law as laid down by the supreme court of the state of Louisiana in the opinion and judgment rendered by it as aforesaid' (126 La. 59, 52 So. 216), 'brought this suit, as it understands it is its duty to do.' Even in his protest to the district court against the settlement, the attorney general appeared 'as attorney of record for the complainant,' the levee board, and it was long after term, and not until six months, lacking sixteen days, after the decree of the district court approving the settlement had been entered, that he left off the character of solicitor for the board, and, appearing for the state, petitioned for leave for it to intervene and appeal from the decision affirming the settlement approved by his former client. Even in this petition no claim is made that the board had been deprived of its powers by the Act of August 19, 1910, or that it had acted otherwise than in the utmost good faith in making the compromise. The first time that this astonishing assertion of a repeal by implication by the Act of August 19, 1910, appears in the record, so far as we can discover, is in the brief filed by a third attorney general on April 30, 1917. This summary of the proceedings in the case out of which the petition we are considering grew shows that the predecessor of the present attorney general, who was in office when the act of 1910 was passed, and also the attorney general who succeeded him, both contended, until nearly six months after the entry of the settlement decree, that the supreme court had settled as the law of the case that the state was without title or beneficial interest which would enable it to maintain a suit to set aside the sale alleged to be fraudulent; that the proper plaintiff in such a case was the levee board to which the state had committed the title, custody, and power of disposition of the lands in controversy, and also, apparently, that the purpose of the Act of August, 1910, was simply to authorize the attorney general, on the request of the governor, to take charge (in this case with another solicitor) of a suit to be instituted by the levee board, and thereby to place his professional learning and the weight of his official character at the service of this plaintiff, an 'agency or subdivision' of the state. Both attorneys general assumed that the powers of the state and of the levee board over the subjectmatter continued as the supreme court had defined them to be before the Act of August, 1910, was passed, and, as we have seen, it was not until long after the entry of the settlement decree that the contention first appeared that the act took away from the levee board and gave to the state the authority to conduct the required litigation. This contemporary construction of the act by the two law officers of the state charged with acting under it is persuasive authority as to its true meaning, and, upon full consideration, we think it is the correct interpretation of it. To this we add that, except in a class of cases to which this case does not belong, the authority of a court to make new parties to a suit, especially after judgment or decree, rests in its sound discretion, which, except for abuse, cannot be reviewed upon an appeal or writ of error. No claim is made of abuse of discretion by the district court, and plainly, if made, it would be groundless, since the judge refusing to permit the state to intervene had before him at the time of his refusal the decision of its own supreme court that the state was without title, legal or beneficial, qualifying it to litigate the questions involved. In the original bill the not uncommon allegation of fraud is made, which is denied in the answer. It was entirely proper for the parties to such a litigation, in good faith 'balancing the hope of gaining with the danger of losing,' to compromise the case and make an end of the controversy, and, as we have said, it is not claimed anywhere in the record that the members of the levee board, which settled the suit, were not men of character and probity, or that they did not act in perfect good faith in concluding the settlement. To these men the state law committed the care of the interests of the inhabitants of the district, and, within the bounds of their authority, honestly exercised, their action was conclusive upon the state. It results that the decree of the Circuit Court of Appeals must be affirmed.

244.US.25

In an action on a sister state judgment a state court may inquire whether there was personal jurisdiction in the prior proceedings, notwithstanding the question was raised by the judgment defendant and affirmatively decided against him after full hearing both in the trial court which rendered the judgment and in the appellate courts of the same State to which he took the case for review. The claim that a money judgment by a state court violates due process for want of jurisdiction over the defendant's person is not sustainable if the jurisdiction was questioned by him by plea in abatement and by proceedings in the state courts of review, and sustained after fair hearings before the judgment became finally effective. A judgment rendered in such circumstances, being sued upon in the courts of another State, was sustained upon the ground that the matter of personal jurisdiction could not be reopened. Held, that no violation of due process was involved, since the original judgment satisfied due process and the reason assigned for upholding it, if erroneous, amounted only to a mistake concerning the law of the State in which the judgment was rendered. A decision of a state court upholding a judgment of another State raises no question in this court under the Full Faith and Credit Clause. What documentary matter should be filed with the declaration in an action in a state court upon a sister state judgment is P, local question not reviewable by this court. 190 Ill. App. 70, affirmed.

This is a suit in Illinois upon a judgment recovered in Tennessee against the Insurance Companies, plaintiffs in error. They pleaded and set up at the trial that there never was a valid service upon them in Tennessee and that the judgment was void. The defendant in error (the plaintiff) showed in reply, without dispute, that the defense was urged in Tennessee by pleas in abatement; that, upon demurrer to one plea and upon issue joined on the other, the decision was for the plaintiff; and that the judgment was affirmed by the higher courts. The plaintiff had judgment at the trial in Illinois, the judgment was affirmed by the appellate court, and a writ of certiorari was denied by the supreme court of that state. The Insurance Companies say that the present judgment deprives them of their property without due process of law. Other sections of the Constitution are referred to in the assignments of error, but they have no bearing upon the case. The ground upon which the present judgment was sustained by the appellate court was that, as the issue of jurisdiction over the parties was raised and adjudicated after full hearing in the former case, it could not be reopened in this suit. The matter was thought to stand differently from a tacit assumption or mere declaration in the record that the court had jurisdiction. A court that renders judgment against a defendant thereby tacitly asserts, if it does not do so expressly, that it has jurisdiction over that defendant. But it must be taken to be established that a court cannot conclude all persons interested by its mere assertion of its own power (Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897), even where its power depends upon a fact and it finds the fact (Tilt v. Kelsey, 207 U. S. 43, 51, 52 L. ed. 95, 99, 28 Sup. Ct. Rep. 1). A divorce might be held void for want of jurisdiction although the libellee had appeared in the cause. Andrews v. Andrews, 188 U. S. 14, 16, 17, 38, 47 L. ed. 366, 367, 372, 23 Sup. Ct. Rep. 237. There is no doubt of the general proposition that, in a suit upon a judgment, the jurisdiction of the court rendering it over the person of the defendant may be inquired into. National Exch. Bank v. Wiley, 195 U. S. 257, 49 L. ed. 184, 25 Sup. Ct. Rep. 70; Haddock v. Haddock, 201 U. S. 562, 573, 50 L. ed. 867, 871, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1. But when the power of the court in all other respects is established, what acts of the defendant shall be deemed a submission to its power is a matter upon which states may differ. If a statute should provide that filing a plea in abatement, or taking the question to a higher court, should have that effect, it could not be said to deny due process of law. The defendant would be free to rely upon his defense by letting judgment go by default. York v. Texas, 137 U. S. 15, 34 L. ed. 604, 11 Sup. Ct. Rep. 9; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 272, 273, 59 L. ed. 220, 224, 225, 35 Sup. Ct. Rep. 37. If, without a statute, a court should decide as we have supposed the statute to enact, it would infringe no rights under the Constitution of the United States. That a party that has taken the question of jurisdiction to a higher court is bound by its decision was held in Forsyth v. Hammond, 166 U. S. 506, 517, 41 L. ed. 1095, 1099, 17 Sup. Ct. Rep. 655. It can be no otherwise when a court so decides as to proceedings in another state. It may be mistaken upon what to it is matter of fact, the law of the other state. But a mere mistake of that kind is not a denial of due process of law. Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill. Co. 243 U. S. 93, 96, 61 L. ed. 610, 37 Sup. Ct. Rep. 344. Whenever a wrong judgment is entered against a defendant, his property is taken when it should not have been; but whatever the ground may be, if the mistake is not so gross as to be impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights. The decision of the Illinois courts, right or wrong, was not such a denial. If the Tennessee judgment had been declared void in Illinois, this court might have been called upon to decide whether it had been given due faith and credit. National Exch. Bank v. Wiley, 195 U. S. 257, 49 L. ed. 184, 25 Sup. Ct. Rep. 70. But a decision upholding it upon the ground taken in the present case does not require us to review the Tennessee decision or to go further than we have gone. An objection that a copy of the document sued upon should have been filed with the declaration is a matter of state procedure, and not open here. Judgment affirmed.