Volume 196 — United States Reports

Johnson v. Southern Pacific Co., 196 U.S. 1 (1904), was a case before the United States Supreme Court. It interpreted the words "any car" in the Railroad Safety Appliance Act, prohibiting common carriers moving interstate commerce from using any car that was not equipped with automatic couplers. In doing so, it overturned the Eighth Circuit in Johnson v. Southern P. Co., 117 F. 462 (8th Cir. 1902)

<p>Accretion is the gradual accumulation by alluvial formation and where a boundary river changes its course gradually the parties on either side hold by the same boundary — the center of the channel. Avulsion is the sudden and rapid change in the course and channel of a boundary river. It does not work any change in the boundary, which remains as it was in the center of the old channel although no water may be flowing therein. These principles apply alike whether the rivers be boundaries between private property or between States and Nations.</p> <p>The boundary line between Missouri and Nebraska in the vicinity of Island Precinct is the center line of the original channel of the Missouri River as it was before the avulsion of 1867 and not the center line of the channel since that time, although no water is now flowing through the original channel.</p> <p>Nothing in the acts of 1820 and 1836 relating to Missouri or the act admitting Nebraska into the Union indicates an intent on the part of Congress to alter the recognized rules of law fixing the rights of parties where a river changes its course by accretion or by avulsion.</p>

Held: that: Under the circumstances in this case the jury might properly draw the inference that the vice consul executed the certificates in the ordinary course of business and in presence of the testator.

Held: that: A deed of trust and a chattel mortgage with'power of sale are practically-one and the same instrument as understood in the District of Columbia. The rule that in case of attempted forfeiture if the policy be fairly susceptible of two constructions the one will be adopted which is more favorable to the insured was inapplicable to this case.

The facts are stated in the opinion. In every case before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing ft, upon whom the burden of proof.is imposed.

<p>Article IX, § 10, of the constitution of South Carolina of 1868, forbidding, except as specially authorized in the constitution, the issue of scrip or other evidence of state indebtedness except for the redemption of .existing indebtedness of the State, forbade the issue of scrip under an act passed in 1872 to take up the State’s guaranty of railroad bonds under an act passed in 1868 subsequent to the ratification of the constitution, notwithstanding that acts had been passed in 1852 and 1854 authorizing such guaranty, it appearing that the guaranty had not actually been endorsed on the bonds prior to the ratification of the constitution and that the act of 1868 was not an adjustment of an old debt but the granting of new aid to the railroad and the authorizing of an original issue of bonds.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.</p> <p>On June 12, 1890, an action for divorce and alimony was begun -by Annette B. W. Wetmore, wife of the plaintiff in error, in the Supreme Court of the State of New York, and on April 1, 1892, at special term, the plaintiff in error was found guilty of adultery as charged in the complaint, and a divorce was granted upon that ground to the defendant in error. The divorce was absolute, and awarded to the wife the custody and care of the three minor children of the marriage, and also, as alimony, the sum of $3,000 per annum so long as she should live, to be paid in quarterly instalments of $750 each on the first day of the months of July," October, January and April of each year. There was also granted to the wife the sum of $3,000 annually, being $1,000 for the education and maintenance of each of the three minor children, to be paid in quarterly instalments, until such children should arrive at the age of twenty-one years respectively. Plaintiff in error was also required to give security for the payment of the alimony awarded. The decree did not reserve any right of subsequent modification or amendment. On January 13, 1899, there was due to the wife from the plaintiff in error, for arrears in alimony and allowance under the decree, the sum of $19,221.60. Upon that day, upon application to the District Court of the United States for the Eastern District of Pennsylvania, thé plaintiff in error was adjudicated a bankrupt. The defendant in error made no proof of her claim for alimony in the bankrupt proceedings. On June 21, 1900, the plaintiff in error was granted a discharge from all debts and claims provable under the bankruptcy act. On December 12, 1901, plaintiff in error sued out a writ in the Supreme Court of the State of New York for an order enjoining and restraining all proceedings on behalf of the defendant in error for the collection of the arrears of alimony and allowance aforesaid. This application was denied, upon the ground, as it appears from the memorandum of the judge who rendered the decision, that the arrears of alimony were not discharged in bankruptcy. From the order denying the application an appeal was taken by the plaintiff in error to the Appellate Division of the Supreme Court of the State of New York, where the order below was affirmed. 72 App. Div. N. Y. 620. The plaintiff in error thereupon appealed to the Court of Appeals of the State of New York,'and on June 27, 1902, the appeal was dismissed for want of jurisdiction, without any judgment of affirmance or reversal upon the merits. 171 N. Y. 690. A writ of error Was sued out seeking in this court a reversal of the judgment of the Supreme Court of the State of New York.</p> <p>Under the statutes and decisions of the State of New York, the claim of the defendant in error for alimony and allowance was a fixed liability, evidenced by a judgment. The decree of divorce of April. 1, 1892, containing no provision by virtue of which it may be modified, altered or amended, became an absolute obligation, beyond the power or control of either the courts or the legislature to modify. Walker v. Walker, 155 N. Y. 77; Livingston v. Livingston, 173 N. Y. 377; § 1759 N. Y. Code of Civ. Pro., as it read in 1892.</p> <p>So absolute is it that it is not affected by the marriage of the wife. Shepherd v. Shepherd, 1 Hun, 240; S. C., affirmed 58 N. Y. 644. It is an obligation collectible by the levying of an execution. N. Y. Code Civ. Pro. § 1240; Miller v. Miller, 7 Hun, 208. She is regarded as a judgment creditor. Wet-more v: Wetmore, 149 N. Y. 520.</p> <p>The arrears of alimony which accrued prior to January 13, 1899, were a provable debt within the provisions of the United States Bankruptcy Act, and were released by the discharge in bankruptcy granted to the plaintiff in error. Re Houston, 94 Fed. Rep. 119; Re Van Orden, 96 Fed. Rep. 86.</p> <p>The cases on brief of defendant in error can be distinguished.</p> <p>The remedy of plaintiff in error was properly sought in the court in which the judgment was entered. Moore v. Upton, 50 N. Y. 593; Palmer v. Hussey, 119 U. S. 96.</p> <p>The Appellate Division of the Supreme Court is the highest court of the State of New York in which a decision could be had by the plaintiff in error. Bacon v. Texas, 163 U. S. 207; Mo. Kan. & Tex. v. Elliott, 184 U. S. 530.</p> <p>The alimony awarded to the defendant in error was not given as compensation for a willful and malicious injury to her person or property. An action for divorce is not an action of tort. Mangles v. Mangles, 6. Mo. App. 481; Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463; Matter of Ensign, 103 N. Y. 289.</p> <p>Neither the claim for alimony nor for maintenance and education of the infant children was a debt provable in bankruptcy, and the discharge in bankruptcy did not relieve the plaintiff in error from payment of arrears of alimony or arrears for the maintenance and education of the infant children. Audubon v. Shufeldt, 181 U. S. 575; Dunbar v. Dunbar, 190 Ü. S. 340; In re Nowell*, 99 Fed. Rep. 931; In re Shepard, 97 Fed. Rep. 187; In re Anderson, 97 Fed. Rep. 321; Turner v. Turner, 108 Fed. Rep. 785; In re Lachemeyer, 1 Nat. Bk. Rep. 270; In re Oarrett, 11 Bk. Rep. 493; Matter of Smith, 3 Am. Bk. Rep. 68; Maisner v. Maisner, 62 App. Div. N. Y. 286; Young v. Young, 35 Mise. N. Y. 335; Buckle v. Grell, 65 N. Y. Supp. 522; Bishop on Marriage and Divorce, § 837; Tinker v. Colwell, 193 U. S. 473.</p> <p>Under the law of New York alimony provided for by a decree of divorce is not regarded as a debt, or a fixed liability within the meaning of the Bankrupt Act, but as a legal determination of the duty owing from husband to wife. Romaine v. Chauncey, 129 N. Y. 566; Wetmore v. Wetmore, 79 Hun (N. Y.), 268; 8. C., affirmed 149 N. Y. 520; Maisner v. Mais-ner, 62 App. Div. N. Y. 286; Code Civ. Pro. N. Y. §§ 1759, 1772, 1773, 2286.</p> <p>If the effect of a decree containing provisions for alimony and for support and maintenance of children is to be regarded as making the husband and father debtor to the wife and children for such amounts, even then the discharge-in bankruptcy would not release the plaintiff in error from such obligation. . Colwell v. Tinker, 169 N. Y. 531; 2 Bishop on Mar. & Div. 220; 15 Am. & Eng. Ency. of Law, 2d ed., 857.</p>

The facts are stated in the opinion. The prohibitions of the Fourteenth Amendment refer to all the instrumentalities of the State, to its judicial as well as to its executive and legislative authorities. Chicago, Burlington & Quincy B. R. Co. v. Chicago, 166 U. S. 226, 233; Ex parte Virginia, 100 U. S. 339, 346; Yick Wo v. Hopkins, 118 U. S. 356.

Merrit B. Atwater, a citizen of Wisconsin, and William C. Atwater, a citizen of Illinois, were partners, and in 1898 Merrit B. died testate, having appointed Louis A. Pradt, likewise a‘citizen of Wisconsin, his éxecutor. The/will was duly admitted to probate in Wisconsin, and Pradt duly qualified as executor, and has been and is acting as such. William C. Atwater was one of the legatees under the will.

This was an action of ejectment commenced in the Superior Court of Lincoln County, Washington, by A. F. Smalley and F. McLellan against George F. Laugenour and Jane Laugenour (with two others, who subsequently ceased to be parties) to recover possession of certain real estate situated in that county.

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA.</p> <p>The facts are stated in the opinion.</p>

On December 31, 1900, the plaintiffs, who are now appellants, filed their bill of complaint in the Circuit Court of the United States for.the■ Southern District of Florida, praying that the defendants, holding the legal title to a tract of land under patent from the United States, be decreed to hold that title in trust for them. A demurrer to the bill was sustained and a decree of dismissal entered.

<p>The payment referred to in § 5198, Rev. Stat. is an actual payment and not a further promise to pay and the mere discharge of the maker of a note by his giving .his own note in renewal thereof will not uphold a recovery against the bank on account of usurious interest in the former note.</p> <p>While a trustee inbankruptcy is not bound to accept property of an onerous or unprofitable character, and in case he declines to take it the bankrupt may assert title thereto, he is entitled to be informed of the property and have a reasonable time to elect whether he will accept it or not.</p> <p>If a claim owned by a bankrupt is of value his creditors are entitled to it, and he cannot, by withholding knowledge of its existence from the trustee, after obtaining a discharge of his debts, immediately assert title to and collect the claim for his own benefit.</p>

The facts are stated in the opinion. Congress cannot Relegate to a State the authority to legislate upon the sufficiency of records of location of mining claims, that being one of the steps in the disposition of public lands. Mares v. Dillon, 75 Pac. Rep. 963. Congress is vested with authority to regulate the disposal of the public lands. Sec. 3, Art. IV, Const.

<p>Where certain fatts from which a Federal question might arise were argued in the state court, but their Federal character was not indicated, they cannot be made the basis of a writ of error.</p> <p>Where a petition to transfer the case to the Supreme Court of the State, which contains a mere suggestion of the violation of a Federal right without any reference to the Constitution of the United States, is denied without opinion, this court may infer that the petition was denied because the constitutional point was not made in the courts below, and if it was considered, the burden to show it is on the plaintiff in error. •</p> <p>It is too late to set up a Federal question for the first time in the petition for writ of error to this court.</p> <p>Because plaintiff in error relied solely for title upon a decree of foreclosure and sale in a Federal court it does not necessarily follow that a Federal question was set up and decided adversely, no statute, state or Federal, or authority thereunder, being called in question.</p>

The American Express Company received at Rock Island, Illinois, on or about March 29,1900, four boxes of merchandise to be carried to Tama, Iowa, to be' there delivered to four different persons, one of the packages being consigned to each. The shipment was C. O. D., three dollars to be collected on each package, exclusive of thirty-five cents for carriage on each. On March 31 the merchandise reached Tama, and on that day was seized in the hands of the express agent.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.</p> <p>The facts am stated in the opinion.</p>

This is an appeal from a decree of the District Court of the United States for the Southern District of Alabama, sitting in bankruptcy, establishing and directing the enforcement of a lien upon the proceeds of two policies of insurance in the hands of the trustee in bankruptcy.

This is an action for damages for injury caused to plaintiff in error (who was also plaintiff below) by an alleged negligent omission of duty by the District of Columbia. On the twenty-seventh of October, 1895, about nine o’clock in the evening, plaintiff had occasion to visit Sangerbund Hall, a house on C street, in the city of Washington.

The facts are stated in the opinion. As the agreement was prepared by the Government it will be construed most strongly against it. Garrison v. United States, 7 Wall. '688, 690; Chambers v. United States, 24 C. Cl. 387, 392; Simpson & Co. v. United States, 31 C. Cl. 217, 243; Edgar & Thompson Works v. United States, 34 C. Cl. 205, 219.

Appellant filed a petition in the Court of Claims to have declared void his dismissal from the United States Military-Academy at West Point, and for judgment for his pay as a cadet from July 27, 1883, to July 1, 1889, amounting to $3,417.

<p>ERROR TO THE DISTRICT COURT OP THE UNITED STATES FOR-THE DISTRICT OP PORTO RICO.</p> <p>This is a writ of error bringing in review the proceedings of the District Court of the United States for the District of Porto Rico.</p> <p>The original action was in assumpsit brought by Adolfo Sixto, an- alien, and a subject of the King of Spain, against Laureano Sarria, a citizen of Porto Rico. The declaration set forth in substance:</p> <p>That on November 27, 1892, the defendant was indebted to one Manuel Sixto, since deceased, in the sum of $16,000, Spanish money, with interest from May 15 of the same year, which sum said Sarria had promised to pay in four annual installments, falling due respectively on the fifteenth day of May of each and every year from 1893 qntil 1896, inclusive. That the said Manuel Sixto departed this life on November 27, 1892, leaving two children, plaintiff and one Maria Belen Sixto 'Melendez, as his heirs at law. That as such heir the plaintiff was entitled to one-half of the indebtedness of $16,000, Spanish money, with interest at the rate of eight per cent from May 15, 1892. The declaration contained the usual averments in as-sumpsit of promise and default. The defendant filed a plea and amended plea to this declaration which set up the general issue, and for further plea averred :</p> <p>“ And for a further and second plea to the said declaration, the defendant says that on the fifteenth day of May, eighteen hundred and ninety-two, the defendant became indebted in the sum of sixteen thousand dollars (16,000) Mexican dollars, money then current in Porto Itico, to one Manuel Sixto, on account of the purchase price of a farm ■ situated in the island of Vieques, district of Porto Rico, and called ‘ Monte Santo *; that on the said fifteenth day of May, eighteen hundred and ninety-two, the defendant ■ made and constituted a mortgage upon the said farm in favor of the said Sixto, as security for the payment of the aforesaid amount of sixteen thousand (16,000) Mexican dollars, together with a certain interest as stipulated in the said instrument of mortgage; that thereafter the said mortgage was duly registered in the registry of property of Humacao, Porto Rico, on the eleventh day of July, eighteen hundred and ninety-two; that the payment of the aforesaid sum of sixteen thousand (16,000) Mexican dollars, as provided for in the said instrument of mortgage, was to be made in the manner following, to wit: four thousand (4,000) dollars on the fifteenth day of May, eighteen hundred and ninety-three, and four thousand (4,000) dollars on the fifteenth day of May, of the years eighteen hundred and ninety-four, eighteen hundred and ninety-five, and eighteen hundred and ninety-six. And the defendant further says that the aforesaid Emanuel Sixto departed this life on the twenty-seventh day of November, eighteen hundred and ninety-two, before any of the installments aforesaid had fallen due; that the said Sixto died intéstate, and soon after his death, to wit, in the year eighteen hundred and ninety-three, judicial proceedings touching and respecting the settlement and inheritance of the estate of the said Manuel Sixto, deceased, and which said proceedings are known in the law of Porto Rico as ‘ proceedings ab intestato,’ were instituted in the court of first instance of Humacao, Porto Rico, the said court being then and there a court - of record and of general jurisdiction, and the said court in said proceedings by a decree dated the fifteenth day of June, eighteen hundred and ninety-three, ordered the said defendant to pay into and deposit with the said court all sums of money then due by the said defendant to the said estate of the said Manuel Sixto, deceased, by virtue of the aforesaid mortgage, and the defendant thereupon and in obedience to the said order of the said court did on the twenty-second day of June, eighteen hundred and ninety-three, consign and deposit with the said court and did place at the disposal of the same the sum of four thousand (4,000) pesos of the money then current in Porto Rico, and the further sum of eight hundred twenty-two and fifty-two hundredths (822.52) dollars of the same kind of money, the first sum being the amount of the first installment due May fifteenth, eighteen hundred and riinety-three, and the second sum being the interest due on the aforesaid mortgage credit up to the first of June, eighteen hundred and ninety-three. And the said decree of the said court was duly entered before the commencement of this action and still is in full force and effect.</p> <p>“ And the defendant further says, as to the third installment above mentioned, that by judgment of the Supreme Court of Porto Rico, then known as the ‘audiencia territorial,’ dated the eighteenth day of February, eighteen hundred and ninety-six, rendered and entered in certain foreclosure proceedings had before the said court on appeal from the court of first instance of Humacao, in which proceedings the defendant and one Antonio- Roig y Torruellas were plaintiffs, and which said proceedings the said Roig, as owner of the third and fourth installments of the mortgage before mentioned, sought to foreclose the same to the extent of the third installment aforesaid, together with certain interest, the defendant was found to be indebted to the said plaintiff, Roig, in the amount of the third installment aforesaid, together with the corresponding interest, and was ordered to pay the amount of said indebtedness so found due by the said judgment to the said Roig within the period of thirty days thereof, and the said judgment further provided for execution to issue upon the non-compliance with the terms thereof by the defendant. Said judgment was duly entered before the commencement of this suit and is still in force and effect. And the said defendant thereupon and in compliance with the said judgment of the said court thereafter paid unto the said plaintiff, Roig, the amounts ordered to be paid by the said judgment, to wit, the amount of the third installment of the aforesaid mortgage, together with the corresponding interest. And all of this the defendant is ready to verify.”</p> <p>The additional or amended plea sets forth:</p> <p>“ And the defendant as to the second installment aforesaid says that he has paid the same, together with the corresponding interest, on the 4th day of April, 1894, to one Belen Sixto, who was then the record owner of said mortgage credit, and who had previously been declared heir ab intestato of said Manuel Sixto, deceased, by the order and decree of the proper court, to wit, the court off the first instance of Humacao, respectively on the 21st and 23d of the month of November, 1893.</p> <p>“ And as to the third and fourth installments the defendant says that on the 11th day of September, 1894, the aforesaid, Belen Sixto, for a valuable consideration, ceded and transferred the said two installments to one Antonio Roig y Tor-ruellas; that thereupon the said transfer was duly recorded and the said two installments appeared upon the record to be the property of the said Roig, and thereupon, to wit, on or about the 16th day of May, 1896, the defendant paid the said Roig the amount of said two installments, together with all interest due.”</p> <p>The bill of exceptions brings into the case the testimony and the rulings and charge of the court. The facts developed are: Manuel Sixto sold a farm to the' defendant Sarria for $16,000 Mexican money, payable in four equal installments with interest. A mortgage was taken upon the property to secure the payment of the purchase price. Manuel Sixto y Andino died November 27, 1892, leaving no issue except two natural children, a daughter by the name of Maria Belen Sixto y Melendez (hereafter called Maria Belen), who lived in Vieques, and the plaintiff in error, a son, who lived iri the island of St. Thomas. After the death of Manuel Sixto, the daughter, Maria Belen, filed her petition in the court of first instance of Humacao, Porto Rico, alleging that she was the only heir of Manuel Sixto, deceased, and praying the court to declare her heir ab intestato according to the provisions of section 980, and following, of the Code of Porto Rico then in force. Upon June 22, 1893, the defendant in error, Sarria,-paid into court, where the petition of Maria Belen was then pending, the first installment due, with interest. On November 21, 1893, Maria Belen, by decree of the court, was adjudged heir ab intestato. of Manuel Sixto, without prejudice to the rights of third parties. On the twenty-fifth of the same month the assets received by the administrator of Manuel Sixto, who had been appointed during the proceeding, and the money paid into court by defendant in error, by order of the court were made over to Maria Belen as sole heir ab intestato. On November 24, 1893, the plaintiff in error, Adolfo Sixto, presented to the same court of first instance his petition to be declared the heir of Manuel Sixto, deceased (jointly entitled with Maria Belen)) invoking-the exercise by the court of “voluntary jurisdiction” under the section of the code whereby Maria Belen had been adjudged heir. To this petition Maria Belen answered, alleging that she had been duly declared the only heir .of Manuel Sixto, and that the plaintiff in error could only contest her right by a “ contentious suit” (.expediente contensioso).</p> <p>, The court sustained this contention, and Sixto, appealed, but later abandoned the appeal, and on April 4, 1894, began a suit in the form of a contentious proceeding, making Mária Belen a party defendant, and praying the court to declare him (Adolfo Sixto) an equal heir with her in the estate of Manuel Sixto, and asking the court, to issue an order to the registrar of property, requiring him to make a cautionary entry in the register concerning the property affected by this suit, and also requiring the defendant' in error to retain, at the disposition of the court, the sums still owing to the estate of Manuel Sixto. On June 2, 1894, a notice was accordingly issued to Sarria and one to the registrar. The one to Sarria was issued on June 5, 1894, and the one to the registrar on June 4, 1894. The defendant, Maria Belen, being notified of these orders, on June 26, 1894, answered the plaintiff’s petition, and in her answer prayed that the interlocutory order of June 2, 1894, be vacated and • the notices canceled. On August 30,1894,, the prayer of defendant’s answer was granted by the court, and orders issued accordingly to the registrar and to Sarria, and notice was given to the solicitor of the plaintiff. On September 1, 189.4, the order reached the registrar, and the order of cancellation was made on the books on September 3, 1894. On September 3, 1894, the plaintiff filed a petition for an appeal from the court’s order of August 30, 1894, praying that it be allowed “ in both effects,” that is, (Code, sec. 383), with the effect of a review and stay of proceedings, but thfe judge granted the same with one effect only, that is, for a review of the judgment. In the appellate court, on November 17, 1894, that court held that the allowance of both effects had been wrongfully denied, and ordered that the appeal be considered as having been taken for both effects. On Recember 22, 1894, the appellate court granted a further order, that Sarria, the defendant in error, be notified of his obligation under the decree of June 2, 1894, which order was accordingly issued. On November 29, 1895, the appellate court (audiencia) rendered its decision on the merits of the appeal, and reversed the order of August 30, 1894, and reaffirmed the order of June 2, 1S94, in its validity and regularity. The court used the following language:</p> <p>“ That which was ordered in the decree appealed from regarding Mr. Laureano Sarria is hereby set aside, leaving in force the requisition ordered and directed to said Sarria on June 2 by the judge of first instance until the resolution of the pending appeal.”</p> <p>This decision was certified to the court below in January, 1896, and in March following the solicitor of the plaintiff requested the court to notify Sarria and the registrar that the order of June'2, 1894, was still in force, which was accordingly done, and the defendant in error made reply thereto as follows:</p> <p>“ Having received notice that the installment of the mortgage had been transferred to Mr. Antonio Roig, who has recorded said transfer in the registry of property, and supposing that he will proceed to collect the same judicially as he did the previous installment, he is unable to accept the notification, and he will appear before the audiencia in the premises.”</p> <p>The registrar refused tb' comply with the order for these reasons: “ First, because subsequent to the illegal cancellation of the cautionary notice the property as well as the encumbrance had been transferred on the registry; and, second, because the mortgage law contained no provision regarding the form of carrying into effect such an order.” Thereafter the plaintiff asked the court for a further order to the registrar, but this was denied.</p> <p>The case proceeded to proof and argument, and on December 15, 1896, a final decision was rendered, adverse to the plaintiff, from which decree he took an appeal, which was? allowed “ in both effects.” The appeal was also allowed from the order denying a further order to the registrar. On February 2, 1897, the appellate court consolidated the appeals and ordered the suspension of further proceedings until final decision.</p> <p>In the meantime, on April 26, 1896, by an order of the court of the first instance, Sarria was allowed to withdraw his deposit of the third installment. The order recited that one Roig had become the purchaser from Maria Belen of the third and fourth installments, and had recovered judgment in the audiencia against Sarria for the third installment, found that Maria Belen had the right to transfer these installments, and ordered' a copy of the decree to be placed in the records by the actuary.</p> <p>Thus the matter remained until after the conclusion of the war with-Spain, resulting in a change of sovereignty of Porto Rico.</p> <p>By the military government, an order was issued abolishing the territorial audiencia, the appellate court aforesaid, creating in its place the District Court of San Juan. On September 29, 1899, that court rendered its final decision upon both appeals, reversing the action of- the court below, and deciding thé plaintiff to be legally proved the heir of Manuel Sixto. The trial in the United States District Court in the present suit resulted in a verdict'and judgment for the defendant.</p>

<p>It is too late to raise a Federal question by petition for rehearing in the Supreme Court of a State after that court has pronounced its final decision unless it appears that the court entertained the petition and disposed of the question.</p> <p>The certificate of the presiding judge of the Supreme Court of the State, made after the decision, to the effect that a Federal question was considered and decided adversely to plaintiff in error, cannot in itself confer jurisdiction on this court; and on the face of this record and from the opinions the reasonable inference is that the application for rehearing may have been denied in the mere exercise of discretion, or the alleged constitutional question was not passed an in terms because not suggested until too late;</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF GEORGIA.</p> <p>The plaintiff in error brings this case here to review the judgment of the Supreme Court of Georgia, affirming a judgment of the trial court, in favor of the defendants in error, for the damages sustained by them on the shipment of certain grapes, as hereinafter more particularly stated. (First reported, 113 Georgia, 514, and again on appeal from judgment on second trial, 116 Georgia, 863.)</p> <p>The trial court gave judgment for the shippers of the grapes, who were plaintiffs below, for the amount of the difference between the market price of the grapes as shipped in good order and the amount they actually received for the same in their damaged condition, being the sum of $434.55. The action was commenced in the Pike County Court, in the State of Georgia, and the petition averred that on July 31,1897, the petitioners shipped a carload of grapes from Barnesville, Georgia, consigned to' Rocco Brothers, Omaha, Nebraska, by way of the Central of Georgia Railway Company. The freight was to be conveyed by more than two common carriers, the initial carrier being the Central of Georgia Railway Company, and the freight was shipped under a contract of shipment in which it was provided that the responsibility of each carrier should cease upon delivery to the next "in good order.” The grapes were greatly damaged on the route between Barnesville and Omaha, and the damage resulted from the negligence of the common carriers on the route. The petitioners applied to the plaintiff in error, the initial carrier on the route, and served it with an application in writing August 20, 1897, in which they requested that the railway company should trace the freight and inform the petitioners, in writing, when, how and by which carrier the freight was damaged, and also that the company should furnish the petitioners the names of the parties and their official position, if any, by whom the truth of the facts set forth in the information could be established. The railroad company failed to trace the freight and give the information in writing within the thirty days required by law, wherefore the petitioners averred that the railroad company became indebted to the petitioners to the amount of the damage to the grapes as stated.</p> <p>The plaintiff in error demurred to the petition, the demurrer was overruled, and it then put in an answer denying many of the allegations of the petition. Upon the trial it appeared.that the grapes were shipped from Barnesville, Georgia, to Omaha, Nebraska, and they were “routed” by the shippers over'the Central of Georgia, then the Western and Atlantic, then the Nashville, Chattanooga and St. Louis, then the Louisville and Nashville, and then the Wabash Railroads. The initial carrier, the plaintiff in error, issued to the shippers, A. 0. Murphey and Hunt, a bill of lading for the carload of grapes, which showed the routing as above stated, and the bill was signed by Murphey and Hunt, as the contract between the plaintiff in error and themselves. It contained a promise “to carry (the grapes) to said destination, if on its road, or to deliver to another carrier on the route to said destination-, subject in either instance to the conditions named below, which are agreed to in consideration of- the rate named.” Omaha, Nebraska., is not on the road of the plaintiff in error. Paragraph 5 of the bill of lading, under which the shipment of grapes was made, reads as follows:</p> <p>“5. That the responsibility, either as common carrier or warehouseman, of each carrier over whose line the property shipped hereunder shall be transported, shall cease as soon as delivery is made to the next carrier or to the consignee; and the liability of the said lines contracted with is several and not joint; neither of the said carriers shall be responsible or liable for any act, omission or negligence of the other carriers over whose line said property is or is to be transported.”</p> <p>The grapes were carried under the contract contained in the bill of lading, and arrived at Omaha, in the State of Nebraska, in a damaged condition.</p> <p>The law under which the action was brought is found in sections 2317 and 2318 of the Code of Georgia of 1895. Those sections are set forth in full in the margin.1</p> <p>On the twentieth day of August, 1897, the shippers availed themselves of these provisions of the statute, and duly demanded of the plaintiff in error that it should trace the grapes and inform the shippers, in writing, when, how and by which carrier the grapes were damaged, and the names of the parties and their official position, if any, by whom the truth of the facts set out in the information could be established. They also demanded that the information should be furnished within thirty days from the date of the application. The plaintiff in error, although it endeavored so to do, failed to furnish the information within the time mentioned' in the statute. It offered to prove on the trial that the car in which the grapes were originally shipped at Barnesville, on the road of the plaintiff in error, reached Atlanta, Georgia, the end .of the line of. the plaintiff in error, in due time, and that the grapes were then in good order, and the car was promptly delivered to the next connecting line, that is, the Western and Atlantic Railroad, and by that road it was delivered to the Nashville, Chattanooga and St. Louis Railroad Company, at Nashville, Tennessee, with the grapes in like good order and condition. The evidence was rejected, the court holding that the plaintiff in error had failed to comply with the conditions of the statute, and that it was therefore liable for the amount of the damage sustained by the petitioners on whatsoever road the damage actually occurred.</p> <p>Section 2317 of the Civil Code of Georgia imposes a burden upon the carrier and interferes with its full freedom to contract with shippers with respect to confining its liability to its own line and is void when applied to interstate commerce. Under the Constitution any person, natural or artificial, may engage in interstate commerce. Vance v. Vandercook Co., 170. U. S. 438, 455. The freedom of interstate commerce cannot be affected by state legislation. Welton v. Missouri, 91 U. S. 282; Hall v. De Cuir, 95 U. S. 485; Wabash v. Illinois, 118 U. S. 558; Railroad Co. v. Husen, 95 U. S. 465, 472; W. U. Tel. Co. v. Pendleton, 122 U. S. 347; Fargo v. Michigan, 121 U. S; 230; Richmond R. R. Co. v. Tobacco Co., 24 S. E. Rep. 261, distinguished, and see S. C., 169 U. S. 311. Under § 2276, Civil Code of Georgia, 1895, a carrier may by express contract limit its liability to its own line. Central R. R. Co. v. Avant, 80 Georgia, 195; Richmond & Danville v. Shomo, 90 Georgia, 496. The requirements of the statute involved are unreasonable and as such interfere with interstate commerce and are void. C., C. & St. L. R. R. v. Illinois, 176 U. S. 514, and cases cited.</p> <p>The statute fixes a liability on the carrier without due process of law. Wallace v. Railway Co., 94 Georgia, 732. An act of legislature which arbitrarily makes one person liable for the debts or responsible for the acts of another would deprive him of due process of law. Camp v. Rogers, 44 Connecticut, 291; Colon v. Disk, 47 N. E. Rep. (N. Y.) 302; People v. O’Brien, 18 N. E. Rep. (N. Y.) 692; Towle v. H. Mann, 53 Iowa, 42; Ohio R. R. Co. v. Lackey, 78 Illinois, 55; Beilenberg v. Railway Co., 20 Pac. Rep. 314. ■ Nor does the statute permit any defense.</p> <p>Doubts are always resolved in favor of the constitutionality of the statute. The violation must be clear and palpable in order for the statute to be held unconstitutional. Cooley’s Constitutional Limitations, 6th ed., 216; Ogden v. Saunders, 12 Wheat. 213, 270; Munn v. Illinois, 94 U. S. 113, 125; Cooper v. Telfair, 4 Dali. 14, 19; Plumley v. Massachusetts, 155 U. S. 461, 479; Cary v. Giles, 9 Georgia, 253, 258.</p> <p>Under the facts in this case, the shipment of grapes was damaged by the negligence of one of the carriers, which handled the shipment. Central &c. Ry. Co. v. Murphey, 113 Georgia, 514, 520.</p> <p>The initial carrier having failed to trace the freight and give to the shipper the required information, it became "liable for the value of the freight lost, damaged or destroyed in the same manner, and to the same extent as if said loss, damage or destruction occurred on its own line.” The law under the facts in this case imputes .the negligence to the defendant company, and makes the same, in effect, its negligence. Code of Georgia of 1895, §2318; case below, 113 Georgia, 514, 520.</p> <p>This statute was before the state court in Southern Ry. Co. v. Ragsdale, 119 Georgia, 773, and the ruling made in this case was adhered to. A strong intimation was given in this last case to the effect that if the railroad company should prove that it was impossible for it to trace the freight and give the required information within the time'provided, such would be a defense to the action. In the case at bar, however, the court •held affirmatively that the facts offered in evidence by the defendant were not sufficient to make out such a defense.</p> <p>A railroad company is not compelled to make a contract to forward goods beyond its own line. . Coles v. Railroad Co., 86 Georgia, '251; A., T. cfee. R. R. Co. v. Railroad Co., 110 U. S. 668, 680. But when it receives goods consigned to a point beyond its own line, it undertakes to transport them to their destination, and if the goods are lost or damaged, it will be liable therefor, in the absence of a contract otherwise limiting its liability. . Falvey v. Railroad Co., 76 Georgia, 597; Hutchinson on Carriers, 2d ed., §§ 145, 152. However, it may by express contract,. limit its liability to its own line. Central Ry. Co. v. Avant, 80 Georgia, 195; R. & D. R'. R. Co. v. Shomo, 90 Georgia, 500.</p> <p>Such being the state of the law in Georgia, and the shipper not'being able to hold the carrier with which he dealt liable, on account of the limitations which were put in the contracts .of shipment in pursuance of the decisions cited supra and the shipper not being able to discover how dr where his goods were damaged, and being thus entirely helpless in the premises— all the avenues of information being closed to him — the legislature of Georgia came to his relief and gave him a remedy by enacting the statute under consideration.</p> <p>The contract under which the goods were shipped in this cgse was made in Georgia, and is governed by the laws of that State. Liverpool &c. Co. v. Insurance Co., 129 U. S. 397.</p> <p>The defendant railroad company “being affected with a public interest,” and being a Georgia, corporation, and being clothed with special'privileges, is therefore subject to legislative control in the interest of .the public. Munn v.- Illinois -, 94. U. S.T13; Gá. R. R. Co. v, Smith, 128 U. S. 174; Chicago &c. Ry. .Co. v. Pullman C-dr Co., 139 U. S. 79, 90; Smyth'v. Ames, 169 U. S. 466, 544..</p> <p>Thé' statute does not violate the commerce clause of the Federal Constitution, nor does it attempt to regulate interstate commerce. States may, in the exercise of their reserved powers, enact laws which, though they incidentally relate to and. affect commerce between the States, yet are not to be considered as regulations, of that commerce within the meaning of the Constitution Of the United States. Sherlock v. Ailing, 93 Ü. S. 99,103'; Peik v. Chicago &c., Ry. Co. et ¿l:.; 94 U. S. 164; Bagg v. Wilmington (fee. Ry. Co., 109 N. Car. 279; Kidd v. Pearson, 128 U. S. 1,'16; Fry v. State, 63 Indiana, 552; Williams v.'Fears, 179'U. S. 270; S.. C., affirming 110 Georgia, 584; Smith v. Alabama, 124 U. S. 465; Nashville &c. Ry: Co. v. Alabama, 128 IT. S. 96,100; Missouri &c. Ry. Co. v. Haber, 169 U. S. 613, 626; New York &c. R. R. Co. v. New York, 165 U. S. 628; Richmond &c. R. R. Co. v. Patterson Tobacco Co., 169 U. S. 311, affirming $. C., 24 S. E. Rep. (Va.) 261; St. Joseph &c. R. R. Co. v. Palmer (Neb.), 22 L. R. A. 335; Hart v. Railway Co., 69 Iowa, 485; McCann v. Eddy, 133 Missouri, 59; Missouri &c. Ry. Co. v. McCann, 174 U. S. 580.</p> <p>The statute in question comports with sound public policy and with responsibility placed upon carriers by the common law and the statutes and decisions of the various States and of the United States. The shipper and the carrier are on an unequal footing, and the carrier is therefore held to rigid responsibility. Code of Georgia of 1895, § 2264; Central Ry. Co. v. Hasselkus, 91 Georgia, 382; Penn. R. R. Co. v. Hughes, 191 U. S. 477, 489; Balt. & Ohio R. R. Co. v. Voigt, 176 U. S. 498, 505; New York &c. R. R. Co. v. Lockwood, 17 Wall. 357; Bank of Ky. v. Adams Ex. Co., 93 U. S. 174; Railway Co. v. Stevens, 95 U. Si 655;Missouri &c. R. R. Co. v. McCann, 174 U. S..580; Brockway v. Express Co., 168 Massachusetts, 257; Ohio &c. Ry. Co. v. Tabor, 98 Kentucky, 503;' Cent. R. R. Co. v. Lipp-man, 110 Georgia, 665.</p> <p>The United States Supreme Court will generally adopt the construction placed upon a statute of a State by the court of last resort of such State. Sioux City Trust Co. v. Trust Co., 172 U. S. 642; Postal Tel. Cable Co. v. Adams, 155 U. S. 688; Geer v. Connecticut, 161 U. S. 519; Railroad Tax Cases, 92 U. S. 575.</p> <p>The statute under consideration facilitates the safe transportation of goods, and is therefore constitutional. Chicago <&c. Ry. Co. v. Solan-, 169 U. S. 133.</p> <p>The regulation of the enjoyment of the relative rights and performance of the duties of all persons within the jurisdiction of a State, belongs primarily to such State under its reserved power to provide for the safety of all persons and property within its limits. Missouri &c. Ry. Co. v. Haber, 169 U. S. 613, 635; Lake'Shore &c. Ry. Co. v. Ohio, 173 U. S. 299, citing 7 Cush. 53, 85; Cooley’s Const. Lim., 6th ed., 715.</p> <p>Plaintiff in error’s contention that the statute deprives it of its property without due process of law, is not well taken. The railroad, company was duly served with notice and process and has had its-day in court. Chicago &c. Ry. Co. v. Zernicke, 183 U. S. 582, 587; Missouri Ry. Co. v. Mackey, 127 U. S. 205; Minneapolis &c. Ry. Co. v. Herrick, 127 U. S. 210; Mo.- Pac. Ry. Co. v. Humes., 115 U. S. 512; Walker v. Sauvinet, 92 U. S. 90; St. Louis &e. Ry. Co. v. Mathews, 165 U. S. 1; Jones v. Brim, 165 U. S. 180. . • •</p>

The facts are stated in the opinion. Rule 7 is within the authority granted to the. Secretary of the Interior by the act of June 3, 1878. Nor. Pac. R. R. Co. v. Lewis, 162 U. S. 376; United States v. Williams, 12 Pac. Rep. (Mont.) 851.

of the case being: “Where, therefore, a person has been compelled, by the judgment of a court having jurisdiction, to pay damages caused by the negligence of another, which ought to have been paid by the wrongdoer, he may recover of the latter the amount so paid, unless he was a party to the wrong which caused the damage.” In a case cited and much relied upon at the bar, Gray v. Boston Gas Light Co., 114 Massachusetts, 149, a telegraph wire was fastened to the plaintiff’s…

Held: as we think rightly, that the postmaster, having no power or authority to contract in respect to the mail messenger service, was not the agent of the Government for such service, and could not bind the Government by his knowledge or acts in respect thereto. Roberts v. United States, 92 U. S. 41 , 48; Hume v. United States, 132 U. S. 406 ; Whitsell v. United States, 34 C. Cl. 5.

<p>Li regard to the removal of eases the .following principles have been settled: If the case be a removable one,-that is, if the suit, in its nature, be one of which the' Circuit Court could rightfully take jurisdiction, thén upon the filing of a petition for removal, in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it is pending will lose jurisdiction to proceed further, and all subsequent proceedings in that court will be void»</p> <p>After the presentation of a sufficient petition and bond to the state court in a removable case, it is competent for the Circuit Court, by a proceeding ancillary in its nature — without violating §. 720,. Rev. Stat., forbidding a court of the United States from enjoining proceedings in a state court — to restrain the party against whom a cause has' been legally removed from taking further steps in the state court.</p> <p>If upon the face of the record, including the petition for removal, a suit does not appear to be a removable one,, then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made.</p> <p>Under the judiciary act of 1887, 1888, a suit cannot be removed from a state court unless it could originally have been brought in the Circuit Court of the United States.</p> <p>A State cannot by any statutory provisions withdraw a suit in which there is a controversy between citizens of different States from the cognizance of the Federal courts.</p> <p>A proceeding brought by a Kentucky railroad company in the County Court under §§ 835-839, Kentucky Statutes; to condemn lands fora public use, valued at over $2,000, belonging to a corporation which is a citizen of another State, is a suit involving a controversy to which the judicial power of the United States extends within the meaning of the judiciary clauses of the Constitution and of which the Circuit Court has original cognizance under § 1 of the judiciary act of 1887 and may be removed to the Circuit Court of the United States.</p> <p>■In the exercise of the jurisdiction conferred upon it of controversies between citizens of different States, a Circuit Court of the United States is for every practical purpose a court of the State in which it sits and will enforce the rights of the parties according to the law of that State taking care, as a state court must, not to infringe any right secured by the Constitution and the laws of the United States. And in a case of condemnation it would proceed under the sanction of, and enforce, the state law so far as it was not unconstitutional.</p> <p>It is fundamental in American jurisprudence that private property cannot be taken by the Government, National or state, except for purposes which are of a public character, although such taking be accompanied by compensation to the owner.</p> <p>.'it is for the State, primarily and exclusively, to declare for what local public purposes private property, within its limits, may be taken upon compensation to the owner, as well as to prescribe a mode in which it may be condemned and taken. But the State may not prescribe any mode of taking private property for a public purpose and of ascertaining the compensation to be made therefor, which would exclude from the jurisdiction of a Circuit Court of the United States a condemnation proceeding which in its essential features is a suit involving a controversy between citizens of different States.</p>

Held: to be invalid by reason of the exemption of agricultural productions or. live stohk while in the hands of the producer or raiser.

This was a petition in the District Court by the owner and tenant of - certain real estate in Muscatine, used for a tobacconist’s shop, to enjoin the defendants from assessing and collecting a tax of $240, upon the ground of the unconstitutionality of the law. ' Demurrers were interposed to the petition and to certain amendments thereto, which were sustained, the bill dismissed, and an appeal taken to the Supreme Court of Iowa, which affirmed the judgment of the court below.…

Burton v. United States is the name of two appeals to the Supreme Court of the United States by Senator Joseph R. Burton (R-KS) following his conviction for compensated representation of a party in a proceeding in which the United States was interested: Burton v. United States, 196 U.S. 283 (1905) and Burton v. United States, 202 U.S. 344 (1906). Burton was convicted of acting as counsel to Rialto Grain and Securities Company in the United States Postmaster General's investigation of Rialto for mail fraud. On Burton's first appeal, the Supreme Court reversed his convictions because venue and vicinage could not be proper in the Eastern District of Missouri on the sole ground that Burton's bank sent the check to St. Louis after he cashed it.

Held: that this defense was not open. . Held further, that under the circumstances of this case, the contract, properly construed, extended to the process actually used- even if it varied somewhat from that described in the patent.

Rooney v. North Dakota, 196 U.S. 319 (1905), was a United States Supreme Court case in which the court held that the adoption of private execution over public execution after sentencing does not violate the Ex Post Facto Clause.

Held: “Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant recover judgment of and from the United States in the sum of three hundred and ninety-four dollars ($394).” From the judgment of that court the United States appeals to this court.

<p>CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

This was a suit commenced in the Superior Court of Pierce County, Washington, by the plaintiff in error, praying that she be decreed to be the owner of the S.W. £ of the N.W. \ of' section 3, township 20 north, range 2 east, in said county, and that the defendants be adjudged to hold the legal title in trust for her. A decree of - the trial court in her favor was reversed by the Supreme Court of the State, and the cause dismissed. 31 Washington,-351.

ERROR' TO THÉ SUPREME COURT OF THE STATE OF NEW ' HAMPSHIRE. The facts are stated in the opinion. The record fails to show this relator a fugitive from justice as to all of .the several crimes with which she was charged, hence the rendition warrant was illegally issued. A person cannot be a fugitive from justice when not personally present in the State where the offense is alleged to be committed.

Swift & Co. v. United States, 196 U.S. 375 (1905), was a case in which the United States Supreme Court ruled that the Commerce Clause allowed the federal government to regulate monopolies if it has a direct effect on commerce. It marked the success of the Presidency of Theodore Roosevelt in destroying the "Beef Trust". This case established a "stream of commerce" (or "current of commerce") argument that allows Congress to regulate things that fall into either category. In particular it allowed Congress to regulate the Chicago slaughterhouse industry. Even though the slaughterhouse supposedly dealt with only intrastate matters, the butchering of meat was merely a "station" along the way between cow and meat.

The facts are stated in the opinion. The action of the officers of the land office was not conclusive and a court of equity may afford relief if proper cause is shown.

<p>The agreement of September 16, 1833, between New York and New Jersey, confirmed by act of Congress of June 28, 1834, 4 Stat. 708, did not vest exclusive jurisdiction in the Federal Government over the sea adjoining those States, neither of which abdicated any rights to the United States.</p> <p>Although when the charge of the state- court is not before this court, and the record contains no exception to any part of it, the verdict and judgment must be held to have been rendered according to law, nevertheless, if a provision of the Federal Constitution was properly invoked the motion to dismiss may be denied.</p> <p>The act of the legislature of New Jersey of March 12, 1846, under which the jurisdiction of the United States over Sandy Hook is derived ir merely one of cession and does not purport to transfer jurisdiction over the littoral waters beyond low water mark.</p>

This was a suit in equity instituted in the Circuit Court pf the United States for the Eastern District of Arkansas by the appellants, citizens of Arkansas, against the appellees,' more than thirty in number and respectively citizens, corporate and individual, of Tennessee, New York, Missouri, Illinois, New Jersey, Connecticut, Ohio and Georgia.

<p>This court will not inquire whether the finding of the jury in the state court is against the evidence; it will take the facts as found and consider only whether the state statute involved is violative of the Federal Constitution.</p> <p>The power in the state court to determine the meaning of a state statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined.</p> <p>Where the highest court of a State has held that the acts of a person convicted of violating a state statute defining and prohibiting trusts were clearly within both the statute and the police power of the State, and that the statute can be sustained as a prohibition of those acts irrespective of the question whether its language was broad enough to include acts beyond legislative control, this court will accept such construction although the state court may have ascertained the meaning, scope and validity of the statute by pursuing a rule of construction different from that recognized by this court.</p> <p>While there is a certain freedom of contract which the States cannot destroy by legislative enactment, in pursuance whereof parties may seek to further their business interests, the police power of the States extends to, and may prohibit a secret arrangement by which, under penalties, and without any merging of interests through partnership or incorporation an apparently existing competition among all the dealers in a community in one of the necessaries of life is substantially destroyed.</p> <p>The act of the legislature'of Kansas of March 8, 1S97, defining and prohibiting trusts, is not in conflict with the Fourteenth Amendment to the Federal Constitution as to a person convicted thereunder of combining with others to pool and fix the price, divide the net earnings and prevent competition in the purchase and sale of grain.</p>

<p>The mere construction by a state court of a statute of another State and its operation elsewhere, without questioning its validity, does not necessarily involve, a Federal question, or deny to the statute the full faith and credit demanded by § 709, Rev. Stat., in order to give this court jurisdiction to review.</p> <p>The statutes of New York and Pennsylvania prohibit foreign corporations from doing business in those States respectively unless certain specified conditions are complied with. In an action in New Jersey the state court held that contracts made in New York and Pennsylvania by a corporation which had not complied with the statutes of either State were not ipso facto void and might be enforced in New Jersey. On writ of error Held? that</p> <p>The writ must be dismissed as the validity of the New York and Pennsylvania statutes was not denied .but the case turned only upon their construction and the effect to be given them in another State.</p> <p>Whether, aside from a Federal question, the courts of one State should have sustained • the action upon principles of comity between the States is a matter within the exclusive jurisdiction of the. state court.</p>

Cornelius Vanderbilt died in the city of New York on September .12, 1899, leaving a will, which was admitted to probate, the seventeenth clause of which provides as follows:. “Seventeenth: .All the rest, residue and remainder of .'all .the property, and estate, real, personal and mixed, of every description, and wheresoever situated, of which- I may die seized or possessed, or to which I may be entitled at the time of my decease, including all lapsed legacies and the…

Held: that As the claim to set-off is controlled by and is necessarily based on the provisions of § 68 of the Bankrupt Act and its construction is necessarily involved, and the question is one which might have been taken to this court on appeal or writ of error from the highest court of a State, this court has jurisdiction of the appeal.

Somewhat condensing the facts below found, they are as follows: In February, 1897, Chief Engineer Albert C. Engard was performing duty as the chief engineer of the United States receiving ship Richmond, at League Island, Pennsylvania.

The plaintiff in error, by this writ, seeks to review á judgment of the Supreme Court of the State, of Vermont in favor of the defendant in error. 75 Vermont, 361.

The facts are stated in the opinion. The so-called findings and judgment of the District Court of Canadian County clearly did not constitute a judgment that could be set up as res judicata. Child v. Morgan, 52 N. W. Rep. 1127; Auld.v. Smith, 23 Kansas, 65; Massing v. Ames, 36 Wisconsin, 409; Taylor v. Runyan, 3 Iowa, 474, 480; Whilewell v. Hoover, 3 Michigan, 84; Lincoln v. Cross, 11 Wisconsin, 94; § 5, 24 Am. & Eng. Ency. of Law, 2d ed., 717; Masterman v. Mastérman, 51 Pac.

<p>ERROR TO THE SUPREME JUDICIAL AND THE SUPERIOR COURTS OP THE COMMONWEALTH OP MASSACHUSETTS.</p> <p>These five cases were brought here by writs of error, s,ued out by the city of Worcester, for the purpose of reviewing the several judgments of the Supreme and Superior Courts of the Commonwealth of Massachusetts, respectively, affirming the judgments of the trial courts in favor of the railroad company, the defendant in error. The five cases involve the same questions and were brought for the purpose of answering any possible objection to the particular mode adopted in any one case for the purpose of obtaining the relief sought by the plaintiff in error. 182 Massachusetts, 49. The first two cases were petitions for writs of mandamus against the railroad company, which petitions were demurred to, and the demurrers sustained. Of the three other cases, two were suits in equity, and were brought by the city against the railroad company, and were heard upon the bills and demurrers thereto, the court sustaining the demurrers; the fifth case was an action on contract originally brought by the city against the railroad company, in the Superior Court and heard upon demurrer to the complaint, which was sustained and judgment ordered for defendant from which judgment plaintiff appealed to the Supreme Judicial Court of the Commonwealth. •</p> <p>The defendant in error is a street railroad corporation, organized and doing business under the laws of the State of Massachusetts, and it owned and operated in the city of Worcester and in numerous outlying cities and towns a street railway system, parts of which had previously belonged to other similar corporations and had been acquired by the consolidated company in 1901, by the purchase of the franchises and properties of such other companies under the general provisions of the street railway laws of the Commonwealth. Under the general laws of the Commonwealth, as they existed, from 1891 to 1893, it was provided that a street railway company might apply to the board of aldermen of a city, or the selectmen of a. town, for the location of the tracks of the railway company in the streets of the city or town, and, after hearing, it was provided that the board might grant the petition “under such restrictions as they deem the interests of the public may require; and the location thus granted shall be deemed and taken to be the true location of the tracks of the railway, if an acceptance thereof by said directors in writing is filed with said mayor and aldermen or selectmen within thirty days after receiving notice thereof.” Section 7 of chap. 113 of the Massachusetts Public Statutes.</p> <p>The law also provided (section 21 of above act) that the board of aldermen or the selectmen might, from time to time, “under such restrictions as they deem the interests of the public may require, upon petition, authorize a street railway company whose charter has been duly accepted and whose tracks have been located and constructed, or its lessees and assigns, to extend the location of its tracks within their city or town, without entering upon or using the tracks of another street railway company; and such extended location shall be deemed to be the true location of the tracks of the company, if its acceptance thereof in writing is filed in the office of the clerk of the city or town within thirty days after receiving notice thereof.”</p> <p>Section 32 of the act made it the duty of every street railway company to keep in repair, to the satisfaction of the superintendent of streets, “the paving, upper planking or other surface material of the portions of streets, roads and bridges occupied by its tracks, and if such tracks occupy unpaved streets or roads, (the company) shall, in addition, so keep in repair eighteen inches on each side of the portion occupied by its tracks,” etc.</p> <p>■ As the law then stood,1 the railroad company, on several different occasions, between 1891 and 1893, made applications for and was granted the privilege of extending the location of its tracks. On the eleventh day of May, 1891, the defendant in error, upon application, was duly granted an extension of its location for its tracks in certain streets in the city of Worcester, which extension of location was stated in the order or decree of the board of aldermen to be granted “upon the following conditions;” eight different conditions then follow, among which is:</p> <p>“Second. That block paving shall be laid and ‘maintained between the rails of its track and for a distance of eighteen inches outside of said rails for the entire distance covered by this location.’ ”</p> <p>This order or decree was duly accepted in writing by the defendant in error, and its acceptance filed with the clerk of the. city of Worcester. Other extensions of locations Were applied for and granted during this time, some of which were upon the condition or restriction that the paving should be between the rails and outside thereof to the street curb, and these conditions were accepted and the acceptance duly filed in the city clerk’s office.</p> <p>Subsequently and in 1898, (chap. 578 of the Massachusetts Laws of that year), provision was made for a somewhat different system of taxation than that which prevailed at the time these several extensions of locations were granted and accepted by the railroad company. It was provided by section 11 of that act as follows:</p> <p>"Sec. 11. Street railway companies shall not be required to keep any portion of the surface material of streets, roads and bridges in repair, but they shall remain subject to all legal obligations imposed in original grants of locations, and may, as an incident to their corporate franchise, and without being subject to the payment of any fee or other condition precedent, open any street, road or bridge in which any part of their railway is located, for the purpose of making repairs or renewals of the railway, or any part thereof, the superintendent of streets or other officer exercising like authority, or the. board of aldermen or selectmen, in any city or town where such are required, issuing the necessary permits therefor.”</p> <p>After the passage of this act of 1898 the railroad company consented and conformed to its requirements, and thereafter .omitted to make the repairs in the streets which had been required of it at the time when its extended locations were granted during the period from 1891 to 1893. The city thereafter sought by these various.actions or proceedings to' coinpél the street railway company to repair and maintain .the surface of the streets, as provided for by the law in force when the extended locations were given and accepted. During the time that the railroad company had since the passage of the act of 1898, omitted to make the repairs provided for as a condition for the granting of its application for extended locations, the city had "incurred expenses in renewing and repairing various portions of the pavements, because of the omission and refusal of the railroad 'company to do so, and one of these actions was broúght to' recover the expenses thus incurred by the city in making such repairs and renewing such pavement.</p> <p>The conditions contained in the grants of extensions were, legally imposed, the city and the railroad company were empowered to enter into contracts and the acceptance of the location with the conditions constituted a contract and the obligation to pave assumed by the contract is a property right which cannot be taken from the city without due process of law.</p> <p>As to whát is a property right within the Fourteenth Amendment see. Campbell v. Holt, 115 U. S. 620. Restrictions constitute valuable property rights. Soulard. v. United, States, ' 4 Pet. 511; Metropolitan City Ry. Co. v. Chicago, 87 Illinois, 317. Under the Massachusetts laws the municipality has certain property rights with reference to highways and the repair thereof. Rev. Laws,' c. 51, §§ 1, 17,18, 23; Butman v. Newton, .179 Massachusetts, 1, 6; Perry v. Worcester, 6 Gray, 544; Deane v. Randolph, 132 Massachusetts, '475; Hill v. Boston, . 122 Massachusetts, 344; Pratt v. Weymouth, 147 Massachusetts, 245, 254; Brookfield v. Reed, 152 Massachusetts, 568; Collins V. Greenfield, 172 Massachusetts, 78, 81; Tindley v. Salem, 137 Massachusetts, 171. Under the laws of Massachusetts the municipality has-authority to arrange for the repair of streets. Morrison v. Lawrence, 98 Massachusetts, 219; Sampson v. Boston, 161 Massachusetts, 288; Cavanagh v. Boston, 139 Massachusetts, 426; Smith v. Rochester, 76 N. Y. 506; Anthony v. Adams, 1 Mete. 284.</p> <p>This property right cannot be. taken from the city by the legislature. Legislative power over the municipality is very extensive, but it is not universal and does not extend to property acquired for special purposes or to rights of immunity, in which respect the city has the same rights as the individual to his private property. Mt. Hope Cemetery v. Boston, 158 Massachusetts, 509, and- cases cited on p. 512; Commissioners v. Lucas, 93 U. S. 108; Mt. Pleasant v. Beckwith, 100 U. S. 514, 533; Broughton v. Pensacola, 93 U. S. 266; New Orleans, M. & T. R. Co. v. Ellerman, 105 U. S. 166, 172; Richmond v. .Telephone Co., 174 U. S. 761, 777.</p> <p>These property interests and pecuniary rights of a municipality as to a public way, when taken in conjunction with the contract power of the municipality with reference to the repair of streets, Brookfield v. Reed, 152 Massachusetts, 568, places the property rights of the city, in respect of highways, upon the same basis as its property rights in sewer systems and water works. Property rights of municipalities in sewers are recognized in a multitude of cases. Johnston v. District of Columbia,. 118 U. S. 19; Maxmilian v. Mayor, 62 N. Y. 164; Coan v. Marlborough, 164 Massachusetts, 206; Child v. Boston, 4 Allen, 41. As to water works see Hand v. Brookline, 126 Massachusetts, 324; Johnson v. Worcester, 172 Massachusetts, 122; Lynch v. Springfield, 174 Massachusetts, 430; Esberg Gunst Co. v. Berlin, 55 Pac. Rep. 961; S. C., 34 Oregon, 282; Walla Walla v. Walla Walla Water Co., 172 U. S. 1. As to wharves, Mersey Docks Board v. Cibbs, ll H. L. Cases, 686; Petersburg v. Applegarth, 28 Gratt. 321; Pittsburgh v. Grier, 22 Pa. St. 54. As to gas works, Western Savings Fund Society v. Philadelphia, 31 Pa. St. 183; San Francisco Gas Co. v. San Francisco, 9 California, 483; Middleborough v. N. Y., N. H. & H. R. R. Co., 179 Massachusetts, 520.</p> <p>The city of Worcester has a special proprietary right in the property of the defendant in error reserved to it in the original statute incorporating the railroad company, Chap. 148, Mass. Laws of 1861, in regard to its right of purchase of the railroad company’s property. This is property. Richardson v. Sibley, 11 Allen, 65; Cambridge v. Railroad Co., 10 Allen, 50; Boston & Albany R. R. Co. v. Cambridge, 159 Massachusetts, 283; Water Supply Co. v. Braintree, 146 Massachusetts, 482; Water Co. v. Rockport, 161 Massachusetts, 279.</p> <p>A municipal corporation is a “person” within the meaning of that word as used in the Fourteenth Amendment.</p> <p>The word “corporation” as used in certain statutes, includes a municipal corporation. Loeb v. Columbia Township, 179 U. S. 472, 486; Andes v. Ely, 158 U. S. 312; 1 Dillon on Mun. Corp., 4th ed., §§ 18, 19, 20; Mass. P. S., c. 3, § 3, cl. 16; Mass. R. L., c. 8, § 5, cl. 16; Covington & L. Turnpike R. R. Co. v. Sandford, 164 U. S. 578, 592; Pembina Consol. Mining Co. v. Pennsylvania, 125 U. S. 181.</p> <p>The act of the Massachusetts legislature should not be construed to have abrogated the municipality’s contract with the railroad company and this court can so hold notwithstanding the construction placed on the act by the state court.</p> <p>■ Where the validity of the state statute is attacked upon the very ground that it was in conflict with the contract clause of. the Federal Constitution this court examines de novo the meaning of the statute and places its own interpretation upon it. McCullough v. Virginia, 172 U. S. 102, 109; Yick Wo v. Hopkins, 118 U. S\ 356; Mobile & Ohio R. Co. v. Tennessee, 153 U. S. 486; Wilson v. Standefer, 184 U. S. 399, and-cases cited on p. 411. The legislative history of the act shows that it was not intended to abrogate the rights of the municipality.</p> <p>The board of aldermen cf "Worcester in imposing the so-called conditions, claimed by the city to amount to contracts, contained in the orders of location acted, so far as it was intrusted with any power in. relation to the location and construction of the defendant’s railway, not in the capacity of officers or representatives of the city of Worcester, but as public officers under authority delegated to them by the legislature. The city of Worcester, as a municipal corporation, had no power, whether acting by its board of aldermen, by its city government, or otherwise, with respect to street railway locations within its limits. Municipal corporations in Massachusetts possess only such powers and rights as are expressly or by implication granted by the State. Spaulding v. Peabody, 153 Massachusetts, 129; Opinion of Justices, 150 Massachusetts, 592; Swift v. Falmouth,. 167 Massachusetts, 115; Bangs v. Snow, 1 Massachusetts, 180, 189.</p> <p>Without- express legislative authority. a town cannot appropriate money for defense against an invading enemy, Stetson v. Kempton, 13 Massachusetts, 272, 279; nor to build a county highway, Parsons v. Goshen, 11 Pick. 396; nor to celebrate Cornwallis’s surrender, Tash v. Adams, 10 Cush. 252; nor to purchase company uniforms, Claflin v. Hopkinton, 4 Gray, 502; nor to celebrate the Fourth of July, Hood v.-Lynn, 1 Allen, 103; Gerry v. Stoneham, 1 Allen, 319; Morrison v. Lawrence, 98 Massachusetts, 219; nor to pay expenses incurred in promoting or opposing the annexation of one municipality to another. Minot v. West Boxbury, 112 Massachusetts, 1; Coolidge v. Brookline, 114 Massachusetts, 592.</p> <p>The powers of a municipality are only such as they can be clearly shown to possess. Minturn v. Lane, 23 How. 435;' Detroit v. Citizens’ Street By. Co., 184 U. S. 368, 388. Every reasonable doubt is against the power. This doctrine is vital to the public welfare. Pearsall v. Great Northern Bailway Co., 161 U. S. 646, 664; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 666; Citizens’ Street By. Co. v. Detroit By. Co., 171 U. S. 48, 54.</p> <p>Assuming that the board of aldermen impose the conditions in form and manner as they attempted to do, nevertheless they represented said city in its corporate capacity as a mere governmental agency, and not in its private corporate capacity, so that, if said city became the obligee in any contract to which the railway company was obligor, the rights of said city thereunder were held not as its private property, but in trust as a governmental agency for the public in general, and were, therefore, subject at all times to the control of the legislature. Cities have almost no private property. South Dakota v. North Carolina, 192 U. S. 286; 2 Dillon Mun. Corp., 656, 683; Brimmer v. Boston, 102 Massachusetts, 19; Agawan v. Hamp-den County, 130 Massachusetts, 528, and cases cited on p. 530’ citing Freeland v. Hastings, 10. Allen,' 570, 579; Raivson v. Spencer, 113 Massachusetts, 40, 45; Stone v. Charlestown, 114 Massachusetts, 214, 223; Cóolidge v. Brookline, 114 Massachusetts, 592; Hill v. Boston, 122 Massachusetts, 344, 349, 355; Laramie v. Albany, 92 U. S. 307; Tippecanoe Commissioners v. Lucas, 93 U. S.108, 114;.New Orleans v. Clark, 95 Ú. S. 644, 654; Meriwether v. Garrett, 102 U. S. ■ 472; Prince v. Crocker, 166 Massachusetts, 347; Browne v. Turner, 176 Massachusetts, 9.</p> <p>The burden of proof is strongly upon the party asserting such private ownership by a municipality. Proprietors of Mt. Hope Cemetery v. 'Boston, 158 Massachusetts, 509, as cited and. distinguished in Browne v. Turner, 176 Massachusetts, 9,' 13.</p> <p>Whatever may have been the state of the law at the time the extensions of location involved in these suits were granted, the legislature, by enacting c. 578 of the acts of 1898, relieved defendant from obligation to keep in repair any part of the surface material of the streets included in any of said extended locations.</p> <p>Assuming the statute abrogated the obligations (if they were such) set out in the five cases, the legislature of Massachusetts did not, in so abrogating the obligations, violate any provisions of the Constitution of the United States. .If such obligations were property such property was not private municipal property and was subject to legislative control. Fast Hartford v.' Bridge Co., 10 How. 511; Laramie County v.. Albany 'County, 92 U. S. 307; Meriwether v. Garrett, 102 U. S. 472; Browne v. Taylor, 176 Massachusetts, 9, and cases cited on p. 14; People v. Kerr, 27 N. Y. 188; Clinton v. Cedar Rapids R. Co., 24 Iowa, 455.</p>

The facts are stated in the opinion. The ordinance under which this action -was commenced was repealed by the act of the legislature of the State of California of March 23, 1901, and hence the action is abated. Garrison v. New York, 21 Wall. 196; Louisiana v; New Orleans, 109 U. S. 285.; Freeland v. Williams, 131 II. S. 417; United States v. Tynexu,'ll Wall. 88; Norris v. Crocker, 13 How.„429; Maryland v. B. '& O. R; R. Co., 3 How. 534.

<p>CERTIORARI,TO THE- CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

' . The question involved in this case is the construction of the will of Hugh McCaffrey, .deceased. It was duly admitted to probate and recorded in the Supreme Court of the District.

Action by the United States against the Montana Lumber Company and the other defendants for the recovery of $15,000, for the value of 2,000,000 feet of lumber which had been cut by the lumber company on unsurveyed lands within the District of Montana, and converted by the defend a,nts to their own use. It is alleged that the land from which the lumber was cut when surveyed will be in township 26 N.; of range 34 W., of the Montana meridian.

The bill in this case was dismissed by the Circuit Court on the ground that it had no jurisdiction upon the fact alleged, and certified' to this court the. question of jurisdiction.

Held: that: The court will not intervene merely on the ground of a mistake in judgment on the part of the officer to whom the duty of assessment was entrusted by the law. It is not beyond the power of a State, so far as the Federal Constitution is concerned, to tax the franchise of a corporation at a different rate from I the tangible property in the State.

These cases are cross-appeals from a decree rendered in the Circuit Court upon bill and demurrer.

<p>Appeal from the Supreme Court of the Territory of Oklahoma.</p>

<p>Appeals from the District Court of the United States for the Northern District of Ohio.</p>

<p>Appeal from the District Court' of the United States for the Eastern District of New York.</p>

<p>In error to the United States Circuit Court of Appeals for the Ninth Circuit.</p>

<p>In error to the Supreme Court of the State of Nebraska.</p>

<p>In error to the Supreme.Court of the State of Louisiana.</p>