Volume 200 — United States Reports

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

Held: on evidence taken in that regard, that the suit was not one for lobbying services, this court accepts that view of the case. This suit was brought in the Chancery Court of. Adams County, Mississippi, the plaintiff being S. Prentiss Knut, defendant in error, and the defendants being the administrator, heirs and devisees of Haller Nutt, deceased.

Held: within the meaning of § 709, to assert a right and immunity under such statutes, although the statutes may not give the party himself a personal or affirmative right that could be enforced by direct suit against his adversary. Such has been the view taken in many cases where the authority of this court to review the final judgment of the state courts was involved. Logan County Nat.

The facts are stated in the opinion. The city and the Water Company both had power to enter into the contract and no other reasonable or just interpretation can be placed upon said contract than that the city thereby agreed not to erect and maintain waterworks on its own account, in competition with appellant, during the continuance of said contract.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF KENTUCKY.</p> <p>The plaintiff in this suit, the Owensboro Waterworks Company, is a private corporation of Kentucky, while the defendant, the city of Owensboro, is a municipal corporation of the same Commonwealth.</p> <p>The bill was dismissed for want of jurisdiction in the court below to hear and determine the cause, the Circuit Court being of opinion that the suit was not one arising under the Constitution or laws of the United States, and the matter in dispute not of sufficient value to give that court jurisdiction.</p> <p>The case made by the bill was this:</p> <p>On the tenth day of October, 1900, the Cofnmon Council of Owensboro adopted an ordinance authorizing the' borrowing of money, upon the city’s bonds, for the purpose of erecting a system of waterworks for supplying the city of Owensboro and its inhabitants with water. The ordinance provided for a submission to the voters of the question of issuing city bonds to the amount of $200,000 with which to raise money for the pur- . pose just stated.</p> <p>The election was held and the proposition was carried, more than two-thirds of those voting approving the proposed issue, of bonds.</p> <p>By an ordinance of December 3,1900,'bonds to the amount of $200,000 were directed to be issued, and $14,666.66 was appropriated out of the revenues and public moneys of the city for the payment of the semi-annual interest on the bonds and the creation of a fund for the ultimate payment of the principal thereof, such fund to be designated as the Owensboro Water Bond Account.</p> <p>By an ordinance approved March 11, 1901, $14,666.66 was appropriated and set apart out of the revenues and funds of the city, to be raised by taxation or otherwise, each year until the bonds were paid, for the purpose of paying the interest on the bonds semi-annually and for creating a sinking fund for the payment of the principal of the bonds. And for the purpose of providing a fund for that purpose it was ordained, the bill alleged, that there should be, and that there was thereby, levied upon all the taxable property of said city subject by law to taxation for municipal purposes, a direct annual tax for the year 1901, and for each succeeding year up to and including the year 1931, sufficient to raise the said sum of $14,666.66, to be collected annually with other municipal taxes, licenses, revenues and public dues, and continuing from year to year until the ultimate payment of the bonds; and it was also, by the ordinance, ordained that no part of said funds should ever be used for,-or appropriated to, any other purpose or use, except the payment of the principal and interest of the bonds; further, that provision to, meet the requirements óf said section be made in the annual budget and appropriation ordinance.</p> <p>Pursuant to the ordinance of December 3,1900, the city executed 200 bonds of $i,000 each, bearing 41 per cent interest per annum from their date, January 1, 1901, payable semiannually, and transferable by delivery, and at the date of the bringing of this suit all of those bonds were, the bill alleged, in the possession or-.under the control of the city, “ready and'about to be immediately sold and delivered to purchasers, with the exception of seven bonds which the said Mayor and Council have already sold and have received therefor the sum of $7,000.”</p> <p>In each of the years 1901, 1902 and 1903 the city, proceeding under ordinances adopted by the Common Council, levied an ad valorem tax of $2 on each $100 worth of property in the city . subject to taxation, part of such tax, $14,666.66, to be appropriated annually for the payment of interest on the water bonds and for the creation of a sinking Jund for the ultimate payment of the principal. A similar tax was also levied for 1904, of which $14,666.66 was appropriated to pay interest and create a sinking fund — $8,000 to be paid on interest and $6,666.66 to go into the sinking fund. So that under the levies made in 1901, 1902 and 1903, $44,000 had been collected for interest and the sinking fund, and $14,666.66 was to be collected for 1904.</p> <p>. Of the 200 bonds actually signed, 193 remain in the hands of the city, its officers and agents, and after appiying the sum of $44,000, collected under the levies of 1901, 1902 and 1903, and the $14,666.66 to be collected under the levy of Í904; there will remain only $149,000 to be raised by the sale of bonds. Never- . theless, the city, by its agents and officers, claims to have authority and proposes immediately to sell and dispose of, and, unless restrained, will sell and dispose of the entire 193 bonds, amounting to $193,000. If that be done, then the city will have Collected and realized $244,000 on account of the erection of the waterworks; whereas it was only authorized to raise $200,000 for that purpose. Of the $44,000 collected by the city $20,000 has been expended for land on which the proposed water plant was to be erected, while $24,000 has been illegally expended for purposes other than those for which it was collected.</p> <p>The bill further alleges that for each of the years 1901, 1902 and 1903, taxes were levied on the taxable property of plaintiff, and other taxpayers of the city; that capitation, license and' franchise taxes were also assessed, levied and collected by it; that all the taxes so levied were collected each year, from all' sources, and for all purposes, were expended and exhausted each year, and none so collected, in either of said years, are now on hand; that no part of the $44,000 collected is on hand, nor has said city any means of replacing same, except by levying and collecting taxes from the taxpayers of said city for that purpose, and this it had no legal authority to do; that by the payment of the $44,000 the city paid and extinguished that amount of bonds, and bonds to that amount should be surrendered up and cancelled, and that by law complainant, and other taxpayers havé the right to have said bonds so' surrendered and cancelled.</p> <p>The bill proceeds: “Your orator says said bonds are negotiable by delivery, and are on the footing of commercial obligations, and if said 193 bonds, or any of them, shall be sold and' transferred for value, to innocent bona fide purchasers, then complainant and all other taxpayers of said city would be compelled to pay the full amount of all of said 200 bonds, and the full amount of all interest accrued, or to accrue thereon. It says defendant and its officers and- agents purpose and are now endeavoring to immediately sell arid transfer said 193 bonds, añd coupons attached, to some person for value, and are doing this without giving such persons any notice, or information of the facts herein stated, or of any facts pertaining to the collection or disposition of any part of said $44,000, and purpose to continue said efforts without giving to any person, to whom said bonds may be offered, any notice or information pertaining thereto, and said prospective purchasers have no notice, knowledge or information of any. of said facts, so far as complainant is advised or-«believes, and, unless restrained and prevented, defendant and its officers and agents will immediately sell said bonds and coupons to some person or persons, for value, who have no notice ór information in regard to said transaction, and will do so without giving such persons any notice or information as'to said facts, and thus complainant and its property, and said other taxpayers and their property, will be burthened with the pay-ment of said entire 200 bonds and interest, and, by the means aforesaid, and without due process of law, deprived of the right to have credit, on said debt, for said $44,000 heretofore paid by them, and be compelled to pay said 200 bonds and all interest accrued and to accrue thereon.</p> <p>“Your orator says that by Article fourteen of the Amendments to tile Constitution of the United States it is .provided that no State shall ‘deprive any person of life, liberty or property, without due process of law, ’ but your orator says that if more than 149 of said bonds shall be sold to innocent purchasers, without notice, which defendant city is about to do, that it and the taxpayers, for whom it sues, will be forced to pay such excess, both principal and interest, without opportunity to plead, or to be heard as to the matters herein alleged, and so deprived of their property without due process of law, and the amount in controversy here exceeds $2,000.” ■</p> <p>The relief prayed was that the defendant, its officers and agents, be perpetually enjoined and restrained from selling or disposing of any of the bonds in excess of 149 in number, and •before selling them to detach and destroy all coupons for intér-est that have heretofore matured or that may mature before the date when the bonds may be sold, and be ordered and compelled to cancel and surrender all of the bonds, and all coupons pertaining thereto, in excess of 149, and that the bonds and coupons be destroyed, and if the $14,666.66 levied May 16, 1904, should be collected before the sale was made of the bonds, that said 'sum be applied to the extinguishment of the debt and interest, and the bonds and interest coupons be destroyed, and not sold, as prayed for in regard to the money heretofore collected; also that defendant be enjoined and restrained from levying and collecting from complainant, and all the other taxpayers, of-' the city, or their property, any taxes in excess of a sufficient amount to create a sinking fund with which to pay the 149 bonds, when sold, and the seven bonds, already sold, and’to pay the interest to accrue thereon, upon the seven bonds, heretofore sold, and to accrue upon the 149 bonds, after they were sold.</p> <p>The plaintiff further prayed that the sum of $44,000, paid by the taxpayers of the city, be adjudged-to have satisfied that amount of the bonds, and that it have such further or other relief in the premises as the nature of the case required.</p> <p>The Circuit Court of the United States has jurisdiction. The bill shows the taxpayers are about to be deprived of their property without due process of law. Complainant has the right, as a taxpayer,' to maintain this action in its own behalf and on behalf of all the other taxpayers, who are too numerous to be brought before the court, and thereds nothing in the record to show that it will not truly represent the interest of such other taxpayers.</p> <p>By the sale, of the entire issue of negotiable bonds, involved in‘this case, the officers of the, city, who are officers created by the state statute, and thus officers of the State, will place an unlawful encumbrance upon the property of the taxpayers by which they will be compelled' to pay $44,000 more than they agreed to pay, and thus be deprived of their property to that extent without due process of law. Dundee Mortgage Co. v. School District, 19 Fed. Rep, 359; Southern Railway Co. v. Corporation Commission, 97 Fed. Rep. 513; Ex parte Virginia, 100 U. S. 339; C., B. & Q. R. R. Co. v. Chicago, 166 U. S. 226.</p> <p>The Circuit Court has jurisdiction. Brown v. Trusdale, 138 U. S. 389;- Smith v. Swormstedt, 16 How. 302; Water Company v. El Paso, 152 U. S. 157; Colvin v. Jacksonville, 158 U. S. 456.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>This was a bill filed in the Circuit Courtrof the United States for the Northern District of Illinois by the Peoria Gas and Electric Company to restrain the enforcement of an ordinance passed by the defendant, fixing the price of gas. A decree was entered in the Circuit Court dismissing the bill, and the case was brought directly here, as involving a constitutional question.</p> <p>The facts are these: Prior to 1899 for a, period of many years, the Peoria Gaslight and Coke Coriipany had manufactured and furnished gas to the city of Peoria and its citizens. The business had been profitable and the stock was valuable. In 1899 the plaintiff company was organized to construct gas works in Peoria, and that city, by ordinance, granted to it a franchise permitting it to construct and operate a gas plant and lay mains along certain streets, etc. It is charged, that in order to obtain this franchise the promoters of the plaintiff company represented that it was to be a Peoria company and enterprise, and that it would furnish gas at a cheaper rate than the old company; that in fact it was a scheme of certain Chicago capitalists, who, as soon as the ordinance was passed and the plant constructed, appeared as owners of substantially^ the entire stock. After the new company was organized and its plant constructed the two companies became competitors, the competition being so sharp that in the early summer of 1900 the new company lowered its price to 30 cents per thousand cubic feet for both light and fuel gas. On July 31,1900, after á conference between the managers of the two companies, both raised the rate to $1.15 net for light and 75 cents net for fuel gas, to take effect August 1, 1900. The announcements.of this raise in the rates were published in the Peoria papers on the same day, each announcement being in precisely the same language. On September 4, 1900, the city passed an ordinance providing that the maximum price for gas should be 75 cents per thousand cubic feet, and that the gas to be furnished should not be less than eighteen candle power..</p> <p>On September 18, 1900,. the plaintiff filed this bill of complaint, setting forth its organization, the. ordinance under which it was given authority to occupy certain streets and that of September 4, 1900; alleged that the latter ordinance was invalid, as establishing a rate which was not remunerative and in effect confiscatory, and was thus taking private property for public use without just compensation and depriving the plaintiff of its property without due process of law. The city answered, narrating the circumstances attending the organization of the plaintiff and the passage of the ordinance authorizing it to occupy the streets and supply the city with gas, with the representation made at the time, and claimed an estoppel by reason thereof, showing also the rates which had been the result of competition, the raise in price by the two companies, charged that this was by agreement between the companies, alleged that the ordinance of September 4 was passed in good faith and to prevent extortion by the companies, and also that the rate fixed was reasonable. While the answer alleged that the fixing of the rates from the first of August was by agreement between the two corporations, it did not, in terms, plead that the agreement was in violation of any particular statute.</p> <p>By consent a special commissioner was appointed to take the proofs and report the same with his findings and conclusions thereon. He took an enormous amount of testimony, the printed record in this court amounting to 1,780 pages. From it he found and reported that the rate prescribed by the ordinance of September 4 did not furnish compensation, was confiscatory in its effect, and therefore unreasonable. Exceptions were taken by both sides to different portions of his findings and conclusions of law. On a hearing before the Circuit Court the question of the reasonableness of the rates prescribed was ignored, the court found that the increase in rates on August 1, 1900, was the result of an illegal combination between the two gas companies and in violation of the Illinois anti-trust law of 1891, that, therefore, the plaintiff was not entitled to any relief against the ordinance of September 4, and entered a decree dismissing the bill.</p> <p>The anti-trust act of Illinois, approved June 11, 1891 (Laws, 1891, p. 206), forbids the entering into any “ pool, trust, agreement, combination, confederation or understanding . . . to regulate or fix the price of any article of merchandise or commodity, ” and punishes the same by fine. Sections 5 and 6 are as follows:</p> <p>“5. Any contract or agreement in violation of any provision of the preceding sections of this hot shall be absolutely void.</p> <p>“6. Any purchaser of any article or commodity from any individual, company or corporation transacting business contrary to any provision of the preceding sections of this act shall not be liable for the price or payment of such article or commodity, and may plead this act as a defense to any suit for such price or payment.”</p> <p>Subsequently and in 1893 another act was passed, which was held by this court in Connolly v. Sewer Pipe Company, 184 U. S. 540, to constitute class legislation, and to be void. An amendment in 1897 to the act of 1891 was subject to the same objection. The Supreme Court of Illinois has since held that the act of 1891 was not repealed by the act of 1893 or the amendment of 1897, and is still in force. The People ex rel. v. Butter Street Foundry, 201 Illinois, 236, 257; Chicago, Wilmington & Vermilion Coal .Co. v. The People, 214 Illinois, 421, 454.</p> <p>The contract in question was entered into more than a year subsequent to the filing of the bill of complaint in this cause; it existed for a period of but ten months and was terminated more than a year before the court heard the arguments in this cause.</p> <p>A complainant who comes into court with clean hands cannot by a temporary act of business accommodation, performed more than a year after the pleadings have been settled —and fully completed and abandoned more than a year before the hearing of the cause, — be denied rights guaranteed to it by the Constitution of the United States.</p> <p>If the contract in question were vicious and pertinent to the issues in the case, the doctrine of locus poenitentice would apply. As a benign contract and wholly collateral to the issues, it cannot properly be made an excuse for denying to complainant its constitutional rights.</p> <p>The illegality of corporate acts cannot be raised collaterally, especially when the action is not one to enforce the illegal agreement, and no rights áre predicated upon it. Rector v. Hartford Deposit Co., 190 Illinois, 387; Gas Light Co. v. Memphis, 72 Fed. Rep. 952; Bridge Co. v. Streator, 105 Fed. Rep. 729; L. S. & M. S. Ry. Co. v. Smith, 173 U. S. 698; Gilbert v. Am. Surety Co., 121 Fed. Rep. 494; Connolly v. Union Sewer Pipe Co., 184 U. S. 450; Macginnis v. B. & M. Con. Co. (Mont.), 75 Pac. Rep. 89; Kinner v. L. S. & M. S. Ry. Co., 69 Ohio St. 376; Planters’ Bank v. Union Bank, 16 Wall. 483; Strait v. Nat. Harrow Co., 51 Fed. Rep. 819; Dennehy v. McNulta, 30 C. C. A. 422; S. C., .86 Fed. Rep. 825; Wiswall Co. v. Scott, 86 Fed. Rep. 671; Box and Paper Co. v. Robertson, 99 Fed. Rep. -985; Harrison v. Glucose Co., 116 Fed. Rep. 304.</p> <p>A fortiori, a collateral attack will not be permitted even under a special statute, if the statute is not pleaded or its inhibition challenged -by the issues in the case, especially where the remedy given by the statute is cumulative and differs from or is in addition to that given by the common law. Moreover, such defense must be set up by plea and not .by answer. Chicago & Alton Ry. 'Co. v. Dillon, 123 Illinois, 570; Haskins v. Alcott, 13 Ohio St. 210; Denton v. Moore’s Administrator, 2 Tennessée, 168; Neagle v. Kelley;, 146 Illinois, 465; Chambers v. Chambers, 4 G. & J. (Md.) 438; Tanning Co. v. Turner, 14 N. J. Eq. 329; Curtis v. Mastín,-11 Paige’s Ch. 15; Dyer v. Lincoln, 11 Vermont, 301; 1 Daniel’s Ch. PI. & Pr., 5th ed., 630; Farley v. Kittson, 120 U. S. 303, and cases cited; Sullivan v. Portland &c. R. R., 94 U. S. 806; Dey v. .Dunham, 2 Johnson Ch. (N.,Y.) 182; Crutcher v. Trabue 5, Dana (Ky.), 82; Hudson v. Hudson’s Admr., 6 Munford (Va.), 352; Prince y. Heylin, 1 Atkins, 494.</p> <p>See also casés in which foreign corporations seeking to recover or protect their property have been met by the defense that they had violated or failed to comply with, the provisions of some local statute in compliance with which only would they have the right to do business in such State. Smith v. Little, 67 Indiana, 549; St. L. &c. R: R. Co. V: Fire Association, 60 Arkansas,.325; Brewery Co. v. Ester; 86 Hun.(N. Y.), 22; Telephone Co. v. Pesauken Township, 116 Fed. Rep. 910.</p> <p>'Such collateral attack is expressly forbidden in the Federal courts. Blodgett v. Lanyon Zinc Co., 120 Fed. Rep. 893.</p> <p>A defense must either be' technically • pleaded or the facts constituting such defense must be properly alleged and relied upon on the. hearing of the cause in support of such defense. Eyre v. Potter,. 15 How. 42; French V. Shoerhaker, 14 Wall. 314; Babbitt v. Dotten, 14 Fed. Rep. 19; Spies v. Chicago &c. R. R. Co., 40 Fed. Rep. 34; Britton v. Brewster, 2 Fed. Rep. 160; S. C., aff’d, 4 Fed. Rep. 808; Price v. Berrington, 15 Jurist, 999; S. C., 7 Eng. L. & Eq. 254; Wilde v. Gibson, 1 H. L. Cases, 605; Ferraby v. Hobson, 2 Phillips, 255; Curson v. Belworthy, 3 H. L. Cases,. 742; Fire .Ins.- Co. v. Kavanaugh, 1892, A. C. 473; Harrison v-. Guest, 8-H. L. Cases 481; Hickson v. Lombard, 1H. L. Cases, 324; Tillinghast v. Champlin, 4 R. I. 173'; Fisher v. Boody, 1 Curtis, 206; Dashiell v-. Grosvenor, 66 Fed. Rep. 334; S. C-, aff’d 162 .U; S. 425; Leighton v. Grant, 20 Minnesota, 345. .</p> <p>Even -were it permissible to set up. 'the anti-trust act collaterally, and even though such act had been specifically set forth in the answer, it would not have been a proper defense, in this case.</p> <p>Fhe only possible purpose for -which a violation of the statute might be'urged would be for the purpose of inflicting úpon complainant the" criminal penalties of the act or to show that complainant was a criminal under the act. 1 Starr & Curtis, 2d ed., 1252.</p> <p>If complainant had violated the anti-trust law, or any other criminal statute, such fact would not bar its rights in this suit. Gilbert ,'v. Am. Surety Co., 121 Fed. Rep. 494; Brewery Co. v. Breweries Co., 121 Fed. Rep. 713; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Armstrong v. Am. Exch. Bank, 133 U. S. 433; Planters' Bank v. Union Bank, 16 Wall. 483; Armstrong v. Toler, 11 Wheat. 258; Brooks v. Martin, 2 Wall. 70; Sharp v. Taylor, 2 Phillips’ Ch. 801;- McBlain v. Gibbs, 17 How. 232. . " .</p> <p>When a court of equity is appealed to for. relief, it will not go outside of the subject matter of the controversy and make its interference depend upon the conduct of the.moving.party, as to matters in no way affecting the equitable., right’ which he asserts against the defendant or the relief which he demands. Pomeroy’s Eq ‘Jur. §.399; Lewis’ Appeal, 67 Pa. St. 166; Woodward v. Woodward, 41 N. J. Eq. 224; Insurance Co. v. Clunie, 88 Fed. Rep. 160; Bateman v. Fargarson, 4 Fed. Rep. 32; Chicago v. Union Stockyards Co., 164 Illinois, 224; Trice v.. Comstock, 121 Fed. Rep. 620; Bonsack Machine Co,, v. Smith, 70 Fed. Rep. 383; Mining Co. v. Miners Union, 51 Fed. Rep. 260; Knapp v. Jarvis Adams Co., 135 Fed. Rep! 1008; Yale Gas Stove Co. v. Wilcox, 64 Connecticut, 101; Delaware Surety Co. v. Layton (Del. 1901), 50 St. Rep. 378; Deering v. Earl of Winchelsea, 1 Cox Ch. 318; Barton v. Mulvane, 59 Kansas, 314; Foster v. Winchester, 92 Alabama, 497; Wiley v. National Wall Paper Co, -70 Ill. App. 543.</p> <p>The Illinois anti-trust law is valid and its constitutionality as it applies to this case has been upheld. The appellant entered into a combination unlawful under the act and the court will not aid it to reap the fruits thereof. Gibb v. Gas Company, 130 U. S. 396, 412; Russell v. De Grand, 15 Massachusetts, 35. ■</p> <p>by leave of the court and on behalf of Darius O. Mills, a party to another pending case involving the question of the power of cities of Illinois to fix the price of gas, submitted a brief contending that such power did not exist under existing statutes.</p> <p>by leave of the court and on behalf of the City of Chicago, a party to such other pending action, submitted a brief, in support of such power.</p>

Section 1255 of the Code of North Carolina of 1883 reads: “Mortgages of incorpórate companies upon their property or earnings, whether in bonds or otherwise, hereafter, issued, shall not have power to exempt the property or earnings of such incorporations from execution for the satisfaction of any judgment obtained in the courts of the State against such incorporation, for labor performed [nor for material furnished such incorporation], nor for torts committed by such…

This action was commenced on. July 13, 1898, in the District Court, of Coconino County, Arizona, to recover possession of a quarter section of land, together with damages for it^ detention. The defendant, in addition to the denials in his answer of plaintiff’s title, filed a cross complaint, praying a decree, in his favor, on account of certain alleged water rights.

This was an appeál from a decree of the Circuit Court in favor of the -plaintiff, Charlotte E. Hoadley, a citizen of Massachusetts, • against Abraham L..

The facts are stated in the opinion, The act involved does not purport to regulate succession of estates. Estate of Cope, 191- Pa. St. If Re Magues’ Estate,' 77 Pac. Rep. 854; State ex.rel. v. Ferris, 53 Ohio St. 1. This case can be distinguished from the Magoun case, 170 U. S. 283, 303, and Billings v. Illinois, 188 U. S. 97, one of which upheld a classification on amount of property and the other on the character of the property.

Held: and its ruling on .this subject is not questioned, that prior to the adoption of this revision of the Arizona statutes there was no statute of limitations in that Térritory barring a right of action for the recovery of lands by *102 one claiming title against another holding merely by peaceable and adverse possession.

. The appellee, plaintiff below, commenced this action, called a “declaratory action of greater import,” (Law of Civil Procedure, Porto Rico, Arts. 480, 481, 482), to obtain payment of ' certain sums due on an indebtedness of the defendant (appellant), secured by mortgage, as stated in that instrument. ,She obtained judgment in her favor in the proper District Court of Porto Rico, which was affirmed by the Supreme Court of the island, and the defendant has appealed from that…

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MONTANA.</p> <p>The plaintiff in error commenced this action in the Circuit Court of the United States for the District of Montana, to recover from the defendant the amount of certain back taxes, which it alleged had been illegally assessed and'which it had been compelled to pay in order to prevent the seizure and sale' of the property owned by it, and upon which the taxes were levied. Both parties to the action were residents of the State of Montana at the time it was commenced. The defendant demurred to the complaint upon the ground, among others, that the court had no jurisdiction of the person of the defendant or of the subject matter of the. action. The demurrer was sustained by the court, and the complaint dismissed on the sole ground that it had no jurisdiction, and the court has certified the question of jurisdiction directly to- this court, as provided for in the fifth section of the act of 1891. 26 Stat. 826, 827; 1 Comp. Stat. U. S. 549.</p> <p>The following is the complaint: ■</p> <p>The plaintiff above named complains to the court, and alleges:</p> <p>I. That it is and since prior to the year 1890 has been a cor- - poration organized and existing under the ’provisions .of chapter 34, fifth division of the Compiled Statutes of the State of' Montana, relating to.the incorporation of religious, benevolent .and other like societies, and that its purposes are set forth in its articles of incorporation, as follows: -</p> <p>The particular business or object of said corporation shall be to hold the legal title to real estate in the Territory of Montana, for the use and in trust for the Society of Jesus, also to hold and in trust for said society all funds, property and effects of said society, or any members thereof, or any person or persons, corporation or corporations, conveyed, transferred, delivered or assigned to the said coporation, for the use and benefit of said society; to conduct, erect, govern and maintain churches, colleges, schools and libraries, and all other such necessary and useful enterprises as may be properly connected with the society and corporation. The general business and. object of said corporation shall be to inculcate and further the interests of Christian education among the inhabitants of the Territory of Montana, including the Indians and other residents on reservations within the said Territory, and also to advance the interests of the Christian religion through the erection and maintenance of churches, colleges and schools and the preaching of the gospel.</p> <p>II. The Society of Jesus referred to in the said articles of incorporation is an association or order of ministers of the gospel, none of the members of which can, under the rules of the said order, hold or does hold any property in his own right.</p> <p>III. 'Plaintiff further avers that about the year 1854 the said Society of Jesus established a mission among the Flathead Indians, then residing in the western portion of what is now the State of Montana, and stationed among them members of the said order, with directions to teach, educate, enlighten and care for 'the said Indians. That the said mission being so established, members of the said order so deputed went among the said Indians, and from about the year 1854 to the present, time have continued in the work of teaching, educating and enlightening the said Flathead Indians.</p> <p>IV. The plaintiff further avers that-since the creation of the Flathead Indian reservation in the State of Montana, members of the said order, commonly known a's Jesuit Fathers, have, by the direction of said order and by permission of the Indians living and entitled to live within the same, and the Government of the United States, been permitted to reside within the said reservation for the purpose of teaching and educating the Indians residing thereon, and that they have been, during all of said period, continuously engaged in the work of teaching and educating the said Indians.</p> <p>Y. That with the permission of the Indians inhabiting and entitled to inhabit the said reservation and the Government of the United States, the said JesuitTathers have constructed on the said reservation, at great expense, extensive school buildings, with dormitories, and in connection therewith, for the. purpose of teaching the said Indians the manual arts, a blacksmith shop, wagon shop, printing office, saddlery shop, shoe shops, bakeries, and other shops of like character, and with the same purpose cultivate fields and gardens.</p> <p>VI. That for the more successful conduct of the training and education of the Indians, the said Jesuit Fathers take into their care and custody at tender ages the children of the said Indians, and keep them at the said schools, and clothe, feed and house them until they arrive at mature years, and that they now have and for more than ten years last past have had in their charge and care upwards of two hundred and fifty of the children of the Indians residing on and entitled to reside on the said reservation.</p> <p>VTI. That for many years the Government of the United States, in recognition of the value of the work of the said Jesuit. Fathers in the training and education of the said Indians, appropriated and paid to them large sums of money for the purpose of carrying on the said work of educating the said Indians and caring for their children, but that such contributions are no longer made by the Government.</p> <p>VIII. That with a view to provide means for the carrying on of the said work of educating the-said Indians the said Jesuit Fathers have acqüired a large band of neat cattle, which roam over and feed.upon the said reservation. That the right to keep and graze the said cattle upon the lands included within the said reservation was, long prior to the year 1895, granted to the Jesuit Fathers by the Indians residing upon the said reservation and'entitled to reside thereon, which right w-as confirmed by the acquiescence and permission of the Government of the United States, and that the cattle now owned by them or by the plaintiff herein, as hereinafter set out, now graze upon the lands included within the said reservation by the express permission of the Indians residing arid entitled to reside thereon, and of the Government of the United States.</p> <p>IX. That a large number of the said cattle are annually killed and consumed as food by the children of the Indians so residing on and entitled to reside on the said reservation, and who are under the care of the said Jesuit Fathers, as aforesaid, and by the fathers in charge of the said children and assistants employed by them in the work of educating the said Indians,- and that others of said cattle are annually shipped to Eastern markets, and the income derived from the sale of the same is devoted to, and used exclusively for, the work carried on by the said Fathers on the said reservation, of educating the said Indians, as hereinbefore set out, and that all the said income is consumed in the said work.</p> <p>X. That a large portion of the work of rounding up the said cattle, branding and otherwise caring for them, slaughtering and shipping the same, is done by the Indians residing on the said reservation, under the direction of the said Fathers, and that the said Indians are enabled by this employment to earn in part a livelihood, and are instructed and gain experience in the business and occupation of cattle raising and are encouraged themselves to engage in it, a business for the conduct of which the said reservation is particularly adapted.</p> <p>XI. That prior to the year 1895 all property, so a,s aforesaid acquired by the said Jesuit Fathers, was conveyed to the plaintiff herein, to hold the same in trust for the said Jesuit Fathers, and that by such conveyance it now has the legal title to all of the cattle acquired by the said Jesuit Fathers on the said reservation and the increase thereof. And plaintiff avers that it is and at all times since its organization has been an institution of purely public charity, and that all of- the cattle now owned by it, or which have been owned by it since the year 1895, or at any time, have been and are used exclusively for educational purposes, as hereinbefore set forth.</p> <p>XII. And plaintiff further avers that it is its purpose in the future to devote all cattle now on the said reservation, or which it may acquire thereon, and any income derived from the sale of the same, to the same purposes to which they have heretofore been devoted, as hereinbefore set out,' and that it has no purpose now, nor has it had at any time any purpose, to devote any portion of said cattle or any income derived from the sale of the same to any purpose other than the education and training of the Indians residing or entitled to reside on the said reservation, and that it never has made and does not contemplate making ariy profit out of the raising of the said cattle, with the intent to devote the same to any other purpose.</p> <p>XIII. And plaintiff avers that, notwithstanding the facts aforesaid, the defendant, County of Missoula, which is one of the counties of the State of Montana, through its treasurer, annually since the year 1897 has demanded of the plaintiff that it pay to the said county taxes upon all cattle owned by it and being upon the said reservation, and threatened to seize and sell the said- cattle or so much thereof as might be necessary to satisfy the taxes demanded unless the same should be paid..</p> <p>XIY. That pursuant to such demand and to prevent the seizure and sale of the said cattle, or so many thereof as might be necessary, the plaintiff, under protest, on of about November 23, 1898, paid to the said county and to its treasurer, who turned the same over to'the said county as taxes claimed by it to be due on account of cattle owned by the said plaintiff on the said reservation for the years 1897 and 1898, the sum of $1,257.48; that the plaintiff, under protest, on or about No-veipber 22, 1899, paid to the said county and to its treasurer,. who turned the same over to the said county, as taxes claimed by it to be due on account of cattle owned by the said plaintiff on said reservation for the year 1899, the sum of $867.82; that the plaintiff, under protest, on or about November 26, 1900, -paid to the said county and its treasurer, who turned the same over to the said county, as taxes claimed by it to be due on account of cattle owned by the said plaintiff, on the said reservation for .the yea,r 1900, the sum of $661.20; and that plaintiff, under protest, on or. about November 26, 1901, paid to the said county and to its treasurer, who turned the same over to said county, as taxes claimed by it to be due on account of cattle owned by the said plaintiff on the said reservation for the year 1901, the sum of $321.95,.and plaintiff avers that it neither had nor owned any cattle “at any time since 1895,” in the county of Missoula, State of Montana, except such cattle as it held on the said reservation as hereinbefore set out,, and that the said taxes were exacted of it upon the said cattle. “ All of which were reared on the said reservation and fed on grasses and herbage grown thereon.” '</p> <p>XV. And now plaintiff avers that the defendant is indebted to it on account of said payments, by it made, as hereinbefore set out, in the sum of three thousand one hundred and eight and 45/100 dollars ($3,108.45), with interest op the sum of $1,257.48 from the 23d day of November, 1898, amounting to $345.66; for interest on $867.82 from the 22d day of November, 1899, amounting to $169.35; for interest on the sum pf $661.20 from the 26th day of November, 1900, amounting to $75.55; and for interest on the sum of $321.95 from the 26 th day of November, 1901, amounting to-the sum of $11.03.</p> <p>Wherefore plaintiff demands judgment for said amounts, together with interest as above set forth, and for its costs.</p> <p>The Circuit Court had jurisdiction as the case was one arising under the Constitution and laws of the United States, Osborn v. Bank, 9 Wheat. 821; New Orleans v. Mississippi, 102 U. S. 135; Gold .Washing' Co. v. Keyes, 96 U. S. 199; Briscoe v. So. Kansas By., 40 Fed. Rep. 277; Manigault v. Ward, 123 Fed. Rep. 707; Illinois v. Adams, 180 U. S. 28; Illinois Central v. Chicago, 176 U. S. 646; Railway Co. v. Railroad Co., 68 Fed. Rep. 2; Railroad■ Co. v. Davis, 132 Fed. Rep. 629.</p> <p>The case comes under the rule that property of Indians is not ’ taxable by the State. Kansas Indians, 5 Wall. 757although, it is conceded that-the right to taxation extends to property of people other than Indians on the reservations. Thomas v. Gay, 169 U. S. 26; Wagoner v. Evans, 170 U, S. 588; Truscott v. Land & Cattle Co., 73 Fed. Rep. 60. With ^regard to property on the reservations in which the Indians are interested the power does not exist.' Cosier v. McMillan, 22 Montana, 489. The Indians are interested in' the cattle; they are used to support them, and to tax them would be equivalent to taxing the income of the land, which would be the same as taxing the land itself. Income Tax Case, .157 U. S. 259; State v: Colleclor, 20 Atl. Rep. 292.</p> <p>The property is a part of the means used by the General Government to carry out its powers. As to what the mission has accomplished and what it does to aid and assist the Gov-. ernment, which has appropriated money to carry on the work, see Treaty with Flathead Indians of July 16, 1855; Revision of Indian Treaties, 383;' Smead’s Report of September, 1898; Part I, Ann. Rep, Secy. Interior, 1901, Indian Aff. 260; Yol. 18, House Doc. 56th Cong. 1st Sess. p. 22Ó; Rep. Commissioner Ind. Aff. 1892, p.'294.</p> <p>The State can do nothing that will destroy or impair, the efficiency of the guardianship of the United States over the In- • dians, State v. Cooney, 80 N. W. Rep. 696; United States v. Richert, 188 U. S. 431, or to tax any means or instrumentality of the Government. McCulloch v. Maryland, 4. Wheat. 316; Page v. Pierce County, 64 Pac. Rep. 801; Van Allen v. Assessors, 3 Wall.-573.</p> <p>The cattle are property devoted to educational purposes. Book Agents v. Hinton, 19 L. R. A. 289; Slate v. Fisk, .87 Tennessee, 233; Nexo Haven v. Trustees, 22 Atl. Rep. 156;- Hospital v. Birdsall, 42 Atl. Rep. 853; Sisters of Charity v. Chattam, 9 L. R, A. 198; .Slate v. Johnson, 43 Atl.. Rep..573; Casiano v. Academy, 64 Texas, 673; People v. Barton, 63 App. Div. N. Y. 581. •'</p> <p>. The property being vested in a purely charitable association is under all the circumstances of this case impressed with a public character. Mormon Church Case,' 136 U. S. 1.</p> <p>When Federal jurisdiction is invoked on account of legislation claimed to impair the obligation of a contract, it is not necessary to prove the existence of a contract, but only that the Indians claim to have an interest in the cattle. ‘ Railroad Co. v. Citizens’ Co., 166 U. S. 557; nor is it necessary to point out the specific provision, of the Constitution or the treaty or statute under which the claim is made. -Crystal Springs Co. v. City, 76 Fed. Rep. 153; Bridge v. Hoboken, 1 Wall. 116, 143; McCullough v. Commonwealth, 176 U. S. 102, 118.</p>

One of the appellants, Mrs. Speer, on the fifth of March, 1901, filed this bill in her own behalf and by her husband and next friend, Emory Speer, in the Supreme Court of the District of Columbia to obtain a judicial construction of the will of her deceased brother, Ethelbert Carroll Morgan, who died, testate, on May 5, 1891, a resident of the District of Columbia.

Held: that: While the interpretation of a local ordinance by the highest court of the State is not indisputable, and, even though it'.may conflict with other decisions of the courts of the State, if it does not conflict with any decision made prior to the inception of the rights involved this court will lean to an agreement with the state court. Burgess v. Seligman, 107 U. S. 20 .

Held: that the accused was not denied due process of law within the meaning of the Fourteenth Amendment.

The facts are stated in the opinion. Full faith and credit should have been given by the Alabama courts tq the judicial proceedings of said Florida court. The garnishment judgment and its payment in-Florida constituted a complete defense to the suit in Alabama. The failure to so .recognize it was a violation of § 1, Art. IV., Con-, stitution of the United States, and act of Congress, May 26„ 1790, Rev. Stat., § 905. See Chi., R. I. & P. Ry.

The facts are stated in the opinion. The contract is void under the Sherman act. Repeated attempts have been made to restrict the broad and general language of the statute, but the Federal courts and especially this court have uniformly held that the act means just what it says and cannot be confined to unreasonable restraints nor such as were condemned by the common law before its passage. United States v. Freight &.ssn:, 166 U..

The facts are stated in the opinion. The appeal was properly taken to this court under § 5, act of March 3, 1891.

The facts are stated-'in. the opinion. Parties cannot be. guilty of a joint tort unless each has contributed to the harmful result. In the present case the company, itself, has not been an actor in that which caused the injury. Its sole responsibility is because in law it is surety for the conduct of these servants. On that account alone it is sued. Such responsibility does not make it proper to join them with the company in an action.

<p>Alabama Southern Railway v. Thompson, ante, p: 206, followed to effect that a railroad corporation, sited jointly with its servant, for negligence of the latter for which the former is responsible, may not remove the case into the Federal court unless diversity of citizenship also exists as to the other defendants.</p> <p>A State has the right by its constitution and laws to regulate actions for negligence; and where it provides, as has been done by § 241 of the constitution and § 6 of the statutes of Kentucky, that a plaintiff may proceed jointly or severally against those liable for the injury, nothing in the Federal removal, statute converts such an action into a separable controversy for the purposes of removal, because of the presence of a nonresident defendant therein properly joined under the law of the State wherein it is conducting .operations and is duly served with process.</p>

Held: the State has the right to classify occupations and to impose different taxes upon different occupations. Such has been constantly the practice of Congress under the internal revenue laws. Cook v. Marshall County, 196 U. S. 261 , 275. What the necessity is for such tax,' and upon what occupations it shall be imposed, as well as the amount of the imposition, are exclusively within the control of the state legislature.

Held: that: On the record of this case the charges of fraud were not sustained and the complaint was not established. Where the allegations in the suit in which fraud is alleged are held to be • untrue, records of other suits in which like charges were made and sustained on ex parte statements cannot be regarded as. evidence of the fraud. This, is a minority stockholder's suit.

<p>The power of the State .to alter or destroy its municipal corporations is .not,so far as the impairment of the obligation clause of the Federal Constitution is concerned, greater than the power to repeal its legislation; and the alteration or destruction of subordinate governmental divisions is not the proper exercise of legislative power when it impairs the obligations of contracts previously entered into.</p> <p>Courts cannot permit themselves to be deceived; and while they will not inquire too closely into the motives of the State they will not ignore the effect of its action, and will not permit the obligation of a contract to be impaired by the abolition or change of the boundaries of a -municipality. Where a tax has been provided for and there are >officers. to collect it the court will direct those officers to lay the tax and collect it from the property .within the boundaries of the territory that constituted the municipality.</p> <p>A suit to compel county officers to levy and collect a tax on property within the county to pay bonds of a municipality i? not, under the circumstances of this case, a suit against the State, either because those officers are also state officers, pr because the bonds were issued under legislative authority.</p>

<p>ERROR TO THE SUPREME COURT OF THE TERRITORY OF HAWAII.</p> <p>The facts are stated in the opinion.</p>

Held: that: Although an easement for light and air may, not have been created by implication, still, under the wording of. the conveyances and the circumstances of the case, an easement was created in favor of the mortgagees of-the parcel built on against the original .owner, and also, against his grantee who took with notice, in the ten-foot strip adjoining the parcel on which the building was erected. *258 It was not…

The facts are stated in the opinion. Conferring the powers, rights and privileges of the Northeastern Railroad Co., upon the Cheraw and Darlington Railroad Co. did not confer an exemption from taxation enjoyed by the former on the latter. Phoenix Ins. Co. v. Tennessee, 161 U. S. 171, and cases cited; Tucker v. Ferguson, 22 Wall. 527,.

<p>As the jurisdiction of courts of the United States to .issue writs of habeas corpus is limited to cases of persons alleged to be restrained of their liberty in violation of the Constitution or of some law or treaty of the United States, and eases arising under the law of nations, a Circuit Court cannot issue the writ to release a citizen from imprisonment by another ' citizen of the State merely because the imprisonment is illegal.</p> <p>The objection of a person committed for contempt, for refusing to appear before a legislative committee, that the subject which it had been appointed to investigate w:as not within the jurisdiction of the legislature, under a provision in the state constitution, that neither the legislative, executive nor judicial departments should exercise powers belonging to either of the others, does not present any question under the due process elause~of the Fourteenth Amendment.</p>

<p>Oklahoma City v. McMaster, 196 U. S. 529, followed, to effect that the review by this court of final judgments in civil cases of the Supreme Court of Oklahoma is by writ of error under § 9 of the act of May 2, 1890, 26 Stát. 81, and not by appeal. The act of 1874 in regard to territorial courts does not apply.</p> <p>An option to purchase if the buyer likes the property is essentially different from one to return the property and cancel the contract; in the former case title does not pass until the option is determined, in the latter it passes at once, subject to the right to rescind; and, as held in this case, if the option to rescind is not exercised, and the property returned according to its terms) the sale is complete, and the promise to páy the balance of the purchase price becomes absolute.</p>

■ This was a petition by Altgelt, suing by his next friend, originally filed in the District Court of- Bexar County, for a peremptory mandamus, against the Traction Company, a Texas corporation operating a street railway system, commanding it to issue to -the plaintiff twenty half-fare street car tickets upon the payment’ of fifty cents, the same being at the rate of two and a half cents per ticket. .

This was an action by the plaintiff in error, begun in the state Superior Court to recover certain taxes paid under protest upon two checks or orders for $120,000' and $1,875, respectively, signed by the Treasurer of the United States and addressed to the Treasurer or an Assistant Treasurer of the United States, for interest accrued upon certain registered bonds of the United States, owned by the plaintiff.

The facts are stated in the opinion. Whenever by any action of a State, whether through its legislature, courts, executive or administrative officers, all persons of the African race are excluded, solely because of race and color, from serving as grand jurors in the criminal prosecution of a person of that race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment.

United States v. Detroit Timber & Lumber Company, 200 U.S. 321 (1906), is a decision of the Supreme Court of the United States. Although the primary issue to the parties of the case was to determine ownership of 44 tracts of timberland, the case has become the standard reference to warn attorneys not to rely on the syllabus of a reported case. Prior to Detroit Timber, the Reporter of Decisions had mischaracterized the holding of Hawley v. Diller (1900) in its syllabus for that case. The attorneys representing the United States in Detroit Timber relied on the Hawley syllabus (which incorrectly reported the case) rather than the text of the actual decision (which actually represents the results).

<p>Although a suit in equity cannot 'be maintained where there is an adequate remedy at law, and this objection may be taken for the first time in the appellate court, still, if not raised until then, the court need not, if the subject matter of the suit is of a class over which it has jurisdiction, dis-’. miss the bill; and so held in regard to a suit brought by the Government, under an act of Congress, to recover from a railroad company the value of lands erroneously patented to and sold by it to numerous persons, some' of whom were made defendants as representatives of the class, the-bill, also praying for cancellation of patents, quieting of titles, discovery-and-, accounting. ?</p> <p>Discovery, although now seldom the object of a suit in-equity, and not always sufficient to uphold a suit when the full information is obtainable by proceedings at law, was a well-recognized ground of equity jurisdiction.-</p> <p>When by mistake a tract of land is conveyed, and the vendee, prior to discovery of the mistake, conveys to a bona fide purchaser, the original owner is not limited to a suit to cancel the conveyances and reestablish his own title, but may elect to confirm the title of the innocent purchaser and recover of his own vendee the value of the land up to at least the sum received by him. The conveyance to the innocent purchaser is equivalent, to a conversion of personal property.</p> <p>The acts of March 3, 1887, 24 Stat. 556, of February 12, 1896^’ 29 Stat.'6, and of March 2, 1896, 29 Stat. 42, do not, in providing .for adjustment of railroad land grants, amount to a taking of the railroad companies’ property without compensation because they confirm sales made to bona fide purchasers of lands erroneously patented to railroad' companies and ' require such companies to account for and pay to the Government the amounts received by them from such purchasers up to the-regular Gov- - emment price.</p>

Held: also that: Lands which at the time a railroad grant attached by the filing and approval of the map of definite location were within the claimed but undetermined limits of a Mexican grant did not pass to the railroad company although within the place limits of its grant, and this notwithstanding the fact that by the final survey and patent they were excluded from the Mexican grant.

The facts are stated in the opinion of the court. The petition charges the defendants with violating the Interstate Commerce Act by carrying out the verbal agreement of 1903, involving a carriage of coal for less than the published rates on file and ‘a discrimination forbidden by law. That contract is justified on two grounds: It does not involve a violation of the act, and if there is a seeming violation • of the act, it is only a seeming one.

Held: as the property of that firm, the proceeds of the checks on other banks which that firm had sent for clearing on that morning. The statements of the manager as to what was done with the clearing house check which had been put in the clearings by the City Deposit Bank are not perfectly clear.

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

Held: that: , Under the construction given by the Supreme Court of Minnesota to its articles of association the corporation was organized to engage in a'purely speculative business in buying and selling the stock and assets of another corporation with power, but without any obligation, to engage independently in a manufacturing business and did not fall within the class of corporations whose stockholders were exempted…

' The plaintiff in error seeks by this, writ to review the judgment of the Court of Appeals of Kentucky, ueversi-ng the judgment of the court below and dismissing the petition of plaintiff in error. The trial court granted such petition, which was to cancel the revocation,, by the state Insurance Commissioner, of the permit granted by- him t.o the -plaintiff in error to do business in the State.

<p>Security-Life.Ins. Co. v. Preioitt, ante, p. 446, followed.</p>

Held: at which time it was voted to extend the term of existence of said corporation for forty' years from the date of its original incorporation, and at that meeting it appeared that Marcus Daly, either in his own person or as trustee or as a proxy, controlled nearly seven *458 hundred thousand (700,000) shares of the million shares of the capital stock of said company, and in less than six months thereafter the capital…

<p>In an action for damages for personal injuries while the defendant has the burden of proof of contributory negligence, the plaintiff must establish the grounds of defendant’s liability; and to hold a master responsible a servant must show by substantive proof that the appliances furnished were defective, and knowledge of the defect or some omission in regard thereto. Negligence of defendant will not be inferred from the mere fact that the injury occurred, or from the presumption of care on the part of the plaintiff. There is equally a presumption that the defendant performed his duty.</p>

Held: that: This court has jurisdiction and authority to deal with a question of this nature between two States, which, if it arose between'two independent ' sovereignties, might lead to war. In such a ease, while this court cannot take the place of a legislature it must determine whether there is ’ any principle of law, and if any what, on which the plaintiff State can recover.

The facts are stated in the opinion. The construction of this tramway was not a matter of public necessity, but it was constructed solely for the purpose of reducing to a minimum the cost of transporting the defendant in error’s ores from its mines to the depot. The only use to which this tramway is put is for the transportation of the ores of the defendant in error. The public is in no manner interested in it, nor does the public derive any benefit from the same.

The facts are stated in the opinion. The burdén- of proof as to claims against a bankrupt estate is upon the claimant, and he is not relieved of it by the ex parte statements in his proof of claim.

Held: error and that: As the general purpose of the act was to facilitate commerce and prevent discrimination it will not be construed so as to make illegal- a salutary rule to prevent the violation of the act in regard to obtaining rebates.

The facts are stated in the opinion. In this case the fact is established that the sole purpose which induced each one of the entrymen and entrywomen named in the bill of Complaint to take up a timber claim was that they might sell it-to Cobban and receive from him $100. The qual'ity.of the label and quantity of the timber thereon were immaterial.