DAVIE V. HEYWARD.
of court or practice in C&.Ses at law that the plaintiff has the first three days of the'term to file his declaration, and the defendant two days thereafter to plead, etc. Now, often the plaintiff files his declaration before the term commences, and the defendant pleads immediately, or it is all done on the first day; and, surely, such a premature and voluntary acof removal under this act of contion cannot be said to close the gress, but the expiration Qf the two days allowed the defendant to plead would close it, perhaps, whether he actually did plead or did not. Hence, in this case, the iact that the defendant filed his answer did not terminate his right of removal; for we have seen that he had under the chancery rule 11, already cited, three days after the first Monday in June to file his answer, even concfding that the published notice was binding on him, which it was not, and he actually answered May 16, 1887. His petition for removal was not filed until July 18,1887, after the expiration of that three days; but at the very most it could not have been barred until those three days had expired, although the answer had been filed, unless we hold that the filing of the answer hastened the bar of the statute; and this would be to import an altogether new element of limitation into the statute, which we cannot do. The filing of the answer, therefore, has no effect upon the question. There being no order upon the rule docket fixing a rule-day, and no publication of a copy thereof requiring the defendant to appear and defend, there has been, in this case, by the provisions of the Code and rule 11 of the chancery rules, no three days fixed within which the defendant was required to answer or plead to the bill, and there can, therefore, no limitation arise out of those "laws of the state or rules of the state court,"and his petition was in time. If such a limitation upon the right of, removal. had been attempted by proper order and publication, whether it would have been effectual in view of the other provisions in the Code extending the time ()f defense we need not now inquire. Motion overruled.
South Oarolina. December, 1887.)
CoURTS-APPl!lAL TO UNITED STATES SUPREME COURT-JURISDICTIONAL AMOUNT.
Defendant applied for a citation for a writ of error to the supreme court. but did not state his affidavit the value of his interest in the jud)<ment from which he appealed. Plaintiff's affidavit in opposition showed the value. Held, that the citation must issue, and the question of jurisdictional amount must be left to the Supreme court.
Application for Citation for a writ of error to theUnited States supreme court. W. R. Davie and others, plaintiffs, sued J. B. Heyward and others, defendants, for the recovery of a tract of land, and recovered judgment for the land, Q.Ild five dollars damages,.in August, 1873. One of the
a minor at of the' December 21,1885, and appliedfpr':R,citation for the purposes of a writ of ,to'the United states supreme court. " , },fc(},.ady & Son and W. B; WilSon, for plaintiffs. 's. P: 'Hamilton, for defendantS. ' , SIMONTON, J. This is an application for a citation, fodhe purposes wi·it of errOr to the suprelne court. The cas'e 'Wastried in August, in the distriqt court of'the Westerri district, having circuit court p'clwetS,' The action was for thetecovery of a of land known as "Limclsford,"and for mesne profits, damages laidat'$50.000. Verdict, the land for plaintiffs, with five dollars judgment entered therebn; one of the defendants was Josiah Bedon; then. underage. He attained full age twenty-first December, 1885, and now files his petition stating this fact, and praying that a citation Two of the original to the record, represented by Mr. McCrady, who was an attorney on the record, resists the prayer of the petition. With him joins Mr.' Wilson, who represents persons who hold parcels of the land under pur- . dhases from certain of the plaintiffs. The record does not disclose the value of the land, nor the value of defendant's interest therein. It is insisted that he must show these before he can obtii1nthe citation. The'affidavitof defendant's mother, filed with his petition,shows that he came of age December 21, 1885. He is within the exceptions of section 1008, Rev. St. We must deal with his application as if it were made within two years from entry of the judgment. This would seem to exclude all persons not parties to the record 'in hearing theapplication. Any purchaser from these parties aftel' judgment purchased with notice of the right of defendant to appeal therefrom within two years after he came of age. As to him, then, the suit was lis pfYndenB, and they took pendente lite. The point however wlis reserved by thesupreme court in Zeigler v. Hopkins. 117 U. S. 683, 6 Sup. Ct. Rep. 919. Mr. Wilson has been heard. In order to entitle defendant to be heard in the supreme court, the .extent of his interest in the matter in dispute must exceed, exclusive of costs, the sum or value of $2.000. Rev. St. § 691. The act of July 15, 1875, amending this, applies to judgments thereafter relldered. As we have seen, the record discloses neither the value of the land, nor the value of the defendant's interest therein. The damages claillled by plaintiff are $50,000. But the verdict was five dollars. As defendant is appealing, this will not give jurisdiction to the 8upremecourt. Gordon v. Ogden, 3 Pet.33j Clifton v. Sheldon, 23 How. 481jTroy v ..Evans, 97 U. S. 1. To sustain the jurisdiction of the supreme court, ;the defendant must assume the burdett of proving that the sum or value of his interest in the matter in dispute (the land) exceeds the minimum: . Williamson v. Kincaid, 4 Dall. ·20jRush v. 5 Cranch. 287; W''Ilson v.Blair, 119 U. S. 387, 7 Sup. Ct. Rep. 230; Gib80n v. Shujeldi. 122 U. S. 27, 7 Sup. Ct. Rep. 1066. But the affidavits to establish this fact must be submitted to and be passed upon by the supreme court, and not by this court. It is true that the chief justice,
EX PARTE STOCKTON.
in Wilson v. affirmed the practice of filing affidavits on this point. in the court below to be sent up with the record. But this is for con· venience only. The supreme 'court looks into such affidavits, others to be filed in Washington, and decides for itself upon its own ju.. risdiction. Street v. Ferry, 119 U. S. 385, 7 Sup. Ct. Rep. 231. This court will not presume to decide that the case is not within the jurisdic,tion of the supreme court, and refuse the citation. The defendant has not filed any affidavits as to the value. The plaintiffs have done so. Let these be filed as part of the record. The citation will issue.
,(Diatrict (Jourt, B. D. Texas. December 6, 1887.)
CoNSTlTUTION,u, LAw-INTERsTATE COlmERCE-DRUmt:ER'S
TAX. Rev. St. Tex. art. 4665, provides, under penalties, that every commerctal travelerilo!ieiting trade by sample or otherwise shall pay an annual occupation tax; andif he does not on demand exhibit to the proper officers the comptroller's receipt therefor, he shall be g,uilty of a misdemeanor. Held, that the la\V is, an unconstitutional regulation of commerce between the states as to a citizen of another state, selling goods by sample, and having no goods in the state.!
'Petition for Writ of Habea,f$ Oorpus. Robert C. Stockton, a citIzen ,of Missouri, was arrested for selling goods by sample as a having paid the tax as provided by the laws of Texas, and applied to the United States district court for a writ of habeaacorpUs. . SABIN, J. This is an application Qf :Robert C. Stockton, a citizen of Mjssouri, to be released from tbe custody and imprisonment of M. O. Meador, constable of precinct No.1, Smith county, Texas, who holds him unjustly and unlawfully, and, in .violation of the constitution of the United States, as it is alleged, upon a charge to the effect that the said Stockton, "on the first day of November, A. D. 1887, in the county of Smith, in,th El state of Texas,did then and there llnlawfully pursue and follow theocQupation of a commercial traveler, the said occupation being taxed by Robert Stockton did then and there unlawfully and and refuse to exhibit to M. O. Meador, a peace officer, to-wit, a ,constable in and for precinct No.1, Smith county, Texas, upon deII;l.aQ,d,therefor then and there duly made by said officer
1 A state statute l.inposing alicense tax on drummers and others selling eysa.m.ples within a certaiIi taxing' district is a regulation of interstate commerce and: therefore unconstitutional'8.s applied to citizens at other states, RObbins v. Taxing District, ,7 Sup. Ct. I!.ep. 592: Simmons Hardware Co. ..,.McGuire, (La..) 2 South. Rep. 592; Ex parte , Rosenblatt, (Nev.) 14 piro. <£tep. 298 j' and a statute requiring one who peddles articles gt'0"Wll or in a foreign OQuntry to have a license, is unconstitutional, State v. Pratt, (Vt.) 9 At!. Rep. 556. So, also, where the license is i:na.de. proportionate to the licensee's stock in trade: Corson v. :MArylaUd, 7 Sup. Ct. Rep. 655.
<1f said Robert C. Stockton, the receipt of the comptroller of public acshowing the payment of the occupation tax due by said Robert C. Stockton to said state upon said occupation, against the peace and dignity of the state." Petitioner claims that he is a citizen. of the United States, and has been a citizen of the state of Missouri. for over five years, was such citizen at the time of the arrest complained of, and when arrested was only temporarily in Texas, and was engaged in selling goods by sample for the wholesale house of William A. Wilson & Co., of Kansas City, Missouri; that said William A. Wilson & Co. have no business house in the state of Texas; that each member of that firm is a resident and citizen of Kansas City, Missouri, and of the United States, and that applicant is engaged in what is commonly known as" drUIIlluing," and represents said William A. Wilson & Co., and no other firm, selling their goods and taking orders by sample, which he carries with him, and filling said orders by shipping goods from Missouri into Texas to those from whom he secures orders; that, on the said first day of November, he was so engaged in selling such goods, when he was approached by said M. O. Meador, and requested tQ exhibit to him a receipt of the <lomptroller of public accounts, showing the payment of occupation tax by him as a Oommercial traveler, and, upon his failure tb exhibit such receipt, he was then and there and thereafter arrested by said Meador, by virtue of a warrant upon the charge hereinbefore set forth. Petitioner daims that he has not now, nor ever had, the receipt referred to in the <lharge against him, and that he is unjustly and unlawfully detained by said Meador, in violation of the constitution of the United States, in that the law of the of Texas upon which such prosecution is founded, so far as it affects complainant, is in conflict with the constitution of the United States, which gives to congress the exclusive right to regulate <lommerce between the states, wherefore he prays to be relieved from said unlawful detention and imprisonment, and for a writ of habeas corpus, and the action of this court thereon. The prosecution was an information of the county attorney of I;lmith <lounty, based upon the affidavit of M. O. Meador, filed in the county <lourt of Smith county, Texas, upon which the warrant of arrest was issued by virtue of which the arrest was made. The writ of habeas corpus Was in this behalf from this court upon the application of Stockton, November 4, 1887, and served on Meador November 5,1887, and to which he made his return thereon November 7, 1887, in which he states that he now here brings into this court the body of the within-named Robert C. Stockton, and certifies that he holds said Stockton in duress by virtue of the affidavit, information, and capias, true copies 'of which are attached to the application for writ of habeas corpus herein. At the instance of the Hon. James S. Hogg, attorney general of the state of Texas, who had been at once furnished, by order of the court, , with a copy of the writ of habeas corpus, which embodied the application therefor, the hearing was deferred, with the consent of the applicant, and November 17; 1887, said attorney general appeared and claimed that 4'the state of Texas, by her attorney general, now here in open court,
EX PARTE STOCKTON·.
suggests that she is a proper party to this cause, for the reason that it involves (1) the right of her lawful officers to execute the lawful process under the laws of the state; (2) that it involves the constitutionality of one of her laws; .(3) that it assails her right to raise a revenue from a lawful source; wherefore she asks to be pennitted to appear and be . tered of record here as a party to this proceeding;" which was accordingly done and allowed, and thereupon the hearing was proceeded with; Robbert O. Stockton appearing .in person, and by his counsel, the Hon. John M. Duncan; M. o. Meador, in person; and the Hon. James S. Hogg, attorney general, in behalf of the state of Texas. The proof adduced amply and fully established the facts set forth .in the petition for habeaa corpus, and clearly exhibited the fact that merbusiness in Texas, chants and citizens of states other than Texas, through drummers,and selling by samples of goods without the state, and to be delivered, therein on sale, regarded the drummers' tax as without warrant of law, and as oppressive and unjust, and as opposed to the constitution of the United States, and the settled decisions thereunder by the supreme court of the United States, and had come to the firm determination to make resistance thereto by due course of law in an appeal to the courts, and which views and determination were likewise entertained by the drummers themselves; and Mr. Robert O. Stockton, the relator or herein, being the first party arrested, has sued out this writ, helbeing a drummer of William A. Wilson & 00., citizens of Missouri, having no goods in Texas, and doing business as citizens of Missouri, in the state of Texas, through the agency of said Stockton, in selling by sample their goods in Missouri, to be delivered in Texas on sale by sample to citizens of Texas or persons residing therein .... The clause of the constitution that the applicant, Stockton, claims. to have been violated by any state law, no matter what, which may have called for his arrest, is as follows, viz.: "Sec. 8. The congress shall have power * '" (3) to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; "' '" (18) to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officers thereof." The portion of the law complained of by the applicant as void, and insisted upon by the state as valid, is as follows, viz.: " Art. 4665. That there shall be levied on and collected from every person, firm, company, or association of persons, purr'1 ing any of the follOWing named occupations, annual tax, except when herein otherwise providej, 011 every Buch occupation or separate establishment as follows: '" * '" From every commercial traveler, drummer, salesman, or solicitor of trade, by sample or otherwise, an annual occupation tax of thirty-five dollars, payable in advance, provided, that the tax herein required to be paid by such commercial traveler, drummer, salesman, or solicitor shall be paid to the comptroller.of public accounts, whose receipts, under seal,shall be evidence of the payment of such tax; and provided, further, that no county, city,or town shall levy or collect any occupation tax upon such commercial traveler, drummer, salesman, 01 solicitor; provided, that nothing herein contained shall apply to anyone sov.i:l3F.no.2-7
tbtU"that,6'lJe1'1I commercial traveler, d1'ummer, salesman, or solicitor of trade shalt. ,on demand of the ta:lJ collecto1' of any county of the state, or of any peace oJficer of said county, ,exhibit .tosuch officer the compt1'oller's 1'eceipt above 'mentioned; and every commercial travele1', drummer, salesman, or solicitor 01 trade, who shg,ll fail or refuse to exhibit said receipt to such officer on demand by, him, shall be. guilty ofa misdemeanor, and fined in a sum not less than twentyi/lve. nor more thanonehund1:ed, dollars."
liciting subscriptions for religious, literary, or historical books or maps, or to p81'8011S soliciting for nurseries, newspapers, and grave-stones; provided fur-
'It isfhisp(jrtion of the stattite that the relator, Stockton, claims is v9id" by reason of"being obnoxious to the provisions of the constitution of the United. States quoted,and therefore void. The state of Texas claims that it is a valid law, and that she is entitled to have it enforced, and that it is not so void. rhis law it'nposes atit'x, in the first place, upon ell drummers, whether acting as agents fOl'citizens of other states, in selling 'their goods therein to citizens or! people of this state, in this state, by samples of such goods, or not, and' then proVides a pennlty for not produCing a receipt showing thepayment theteofto the' comptroller, when demanded by the proper offii:ier,artd,; failing'to, pay snch fine or penalty, he may be arrested, and by other laws be thrown into jail, and set to work on the county farm until he can extinguish the same through enforced labor at the rates fixed b),law.The object of the penalty is to enforce the payment of an unlll-wful tax, declared in direct violation of the constitution of the United and' that faiFng, the pElIJ'alty for its disobedience also fails; or, in otherwords,t1;le entire section is null and void, and the same being in direct violation of the constitution ofthe United States. The statesmen, soldiers, 'a.nd patriots who cast their lives, liberties, and sacred honors for and indefensaofAmerican liberties, and for the foundation of a free ahd representa1ivegovernment for a free people, upon the hazard of successful revolution, have passed away; but the sacred principle of no taxation without representation; for which they struggled, still survives, liIld to-day c;me of the grand corner-stones of our government, and 3 and18 in section 8 above referred to of the, constitution of the United States. What representation has the citizen of one state in the laws of another state affecting his commerce therein.? Precisely none. Bntthe congress alone represents the people of the United States/as welIas the states, in their mutual affairs. Neither, state can say for itself what taxes it will place upon the lawful commerce ofcitifl!ens of another state within its borders; the property of such other citizens not being therein. This is simply a question of power. If'a state can makeu tax at all UpCIn: interstate commerce, it can do alrnostanything in tbM'line.: What would be thought of New York or the, New'EnglandstateEl if they were to, tax the <:itizens of Texas or other s9\1thern !ltntes for t4e, sale of all cotton, bides, wool; pecans, and moss, or other article of..commerce sought to besold,them by their agents, drummers,or factors, by levying a tax on such sales by sample therein? Why, it ·w6uld be'claimed, by every citizen· of· the United States, who adheres to 'the doctrine of no taxation withotltrepresentation, that the
citizens of Texas and other states were not represented in the making of such laws, and that they were void as to them and their agents, as a tax on their agents was a practical tax on their business, and, if carried out or tolerated, would· allow anyone state virtually to lay an embargo on the commerce of anyone or more states, which would be preposterous. The idea of a citizen· of the United States being challenged anywhere in this nation by any power other than national, in the conduct of his lawful business in states other than his own, is decidedly absurd and ridiculous. He never has had a chance to vote in the state not his own upon that subject. He has voted in his congressional district, no doubt, for his representative in congress; and it is not unlikely that citizens of other states have voted in their respective congressional districts fOf their representatives; and when all meet in congress, whatever they may lawfully determine therein will be obeyed and observed by each and every citizen in this broad land. The people of this nath;m, 110 matter of what state citizenship, bow to nothing save the will of heaven and their own. In domestic affairs they express that will through their legislatures, and it is observed by all good people; in interstate matters, they express that will, if any, through congress, and it is the pride of all good citizens as well as states to observe and respect it. If the power by the constitution has been lodged in congress, as in this case, and congress shall not have acted, both states and people must wait until congress legislates upon the subject. '1'here is no state or cOmmunity ofindividuals that can make any law at all upon that subject. The law in question is utterly void so far as it affects the commerce of citizens of other states, having no goods herein, but selling herein by sample, and particularly Robert C. Stockton, the applicant for habeas COrpU8 herein, as drummer or commercial traveler for William A. Wilson & Co., of Kansas City, Missouri, and he mnst be discharged and released from custody, and have and recover all coslB herein. The following are the authorities relied upon as settling the law in this case, viz.. Robbins v. Shelby Co. Taxing !Jist., 120 U. S. 489 et seq., 7 Sup. Ct. Rep. 592; Fargo v. Michigan, 121 U. S. 230 et seq., 7 Sup. Ct. Rep. 857; Steam-Ship Co. v. Pennsylvania, 122 U. S. 326 et 8eq., 7 Sup. Ct. Rep. 1118. A judgment and order will be entered herein in accordance with the foregoing opinion.
FEDERAL REPORTER. .
(Oircuit Oourt, W. D. North Oarolina. November Term, 1887.)
Plaintiff sued to recover certain land, claiming that it was comprised in the description of a tract conveyed to him. Held, that the burden of proof was on the plaintiff to esta,blish the boundary for which he contended.
LIMITATION OF ACTIONS-COLOR OF TITLE-ADVERSE POSSESSION.
CONVEYED-BVRDEN OF PROOF.
Certain defendants, in a suit to recover lands, showed a duly registered deed for the land, and that 20 years ago they built some houses on it for tenants, which were at times vacant, and the land was not cultivated, when the houses were not leased. Held, that the deed was good color of title; and if the defendants kept the houses under their control, even if at times unoccupied, they must constitute notice of adverse possession. 1 ·
At Law. Action to recover possession of realty. Alex Hill, plaintiff, sued S. O. Weir and others, defendants, to recover certain lands. Jones & Shuford, for plaintiff. Davidson & Martin, Moore & Cummings, and O. M. McLoud, for defendnnts.
DICK, J., (charging jury.) 'rhe qocumentary evidence in this case is vi>luminous, and the oral testimony is extensive, varied, and somewhat conflicting. The general practice of this court requires all questions of law involved in a case to be settled before arguments are made to the jury. In federal courts the jury have nothing to do with determining questions of law, and counsel cannot properly argue such questions before the jury; but, as this is an action' for tl;1e recovery of land, and our state statute authorizes counsel to argue both questions of law and fact to the jury, I have in this case conformed to the state practice. You must, however, take the law aslaid down by the court, and not adopt the opinions of counsel 'in forming your verdict. There is no United States statute that prevents a federal judge from expressing an opinion on questions of fact, and he is not controlled by a state statute that prohibits a state judge from so doing. I have no 0isposition in this case to express an opinion. as to the material evidence offered, as the evidence is conflicting, and has been fully and ably presented by counsel. I can properly express an opinion as to the relevapcy of testimony, and may do so, in some instances, in my charge. A jury is not bound to adopt the opinion of a judge as to the weight of testimony on isolated questions of fact, but may form, and be governed in their verdict by, their own opinions. When the decided preponderance of the evidence is in favor of one side of the case, then a federal
1 Color is not every pretense or claim of title, but consists in a writing or conveyance of some kind purporting to convey the land under which the claim of title is asserted. Armijo v. Armijo, (N. M.) 13 Pac. Rep. 92. Any instrument purporting upon its face to convey title to the grantee is sufll.cient to constitute color of title. Swift v. Mulkey, (Or.) 12 Pac. Rep. 76, and note; Webberv. Clarke, (Cal.) 15 Pac. Rep. 431. SeeWeineg V'. Holcomb, (Iowa,) 34 N. W. Rep. 787.