Volume 179 — United States Reports

Held: That the owner could not recover for a constructive total loss, nor for an actual total loss of the whole. No right to abandon existed, and the insurers explicitly refused to accept *2 the abandonment tendered.

Held: That the name “ Hunyadi ” having become public property in Hungary, it also became, under our treaty with the Austro-Hungarian Empire in 1872, public property here; that the court could not take notice of the *20 law of Hungary of 1895 reinstating the exclusive right of Saxlehner, and that the name having also become public property here, his right to an exclusive appropriation was lost.

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. '</p> <p>The case is stated in the opinion.</p> <p>Counsel were the same as in No. 29.</p>

Held: That although the proof of laches on the part of plaintiff was notas complete as in the former case the same result must follow, and that the bill must be dismissed as to the word “Hunyadi” and sustained as to the infringement of the bottles and labels.

Held: that where the charter of a company provides a method of electing directors and there is no reservation of a power to. change, the legislature has no power to change such provisions in favor of minority representation. If this is true when the provision is embodied in a contract with the state, it must be more true when the contract is be *50 tween the corporators. Hays v. Commonwealth, 82 Penn.

<p>Proceedings to limit the liability of ship-owners are admiralty cases ; the decrees of the Circuit Courts of Appeal therein are made final by the sixth section of the judiciary act of March 3,1891 ; and appeals to this court therefrom will not lie.</p>

Held: unless he shall have been heretofore registered in conformity with the requirements of chapter 7 of the General Statutes of 1882, and acts amendatory thereof, or shall be registered as herein required.” Sections 133-136 provide for the appointment of a supervisor and two assistant supervisors of registration in each county, and establish registration precincts. “ Sec. 137.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE.</p> <p>This was a motion to retax the costs in this case.</p>

Held: independently of the Harter Act, that a stipulation that a contract should be governed by the law of England in tbis respect was void, and could not be enforced in a court of the United States; but the point has not been decided by this court.

On December 28,1878, William Wheeler Hubbell filed, in the United States Patent Office, an application for a patent for an improvement in metallic cartridges, and on February 18, 1879, letters .patent No. 212,313 were granted and is- • sued to. him. On April 19, 1883, Hubbell, the patentee, filed a petition in the Court of Claims against the United States, alleging that the latter were using his patented methods in circumstances that warranted a claim for compensation.

<p>certificate from the circuit court of appeals for the eighth CIRCUIT.</p> <p>The case is stated in the opinion.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.</p> <p>This was a petition filed in the Civil District Court for the Parish of Orleans by John Brewster, tax collector, against the American Sugar Refining Company, a corporation engaged in the business of refining sugar and molasses, to recover the sum of $3500 per year as a state license tax for the years 1892 to 1897, inclusive, alleged to be due under the act of July 9,1890, of the State of Louisiana, enacted in 1890, entitled “ An act to levy, collect and enforce payment of an annual license tax' upon all persons, associations of persons or business firms and corporations pursuing any trade, profession, vocation-, calling or business, except those who are expressly excepted from such license tax by articles 206 and 207 of the constitution.”</p> <p>By the ninth section it is enacted “ that for carrying on each business of . . . refining sugar and molasses . . . the license shall be based on the gross annual receipts of each person, association of persons, business firm or corporation engaged in said business, as follows: Provided, that this section shall not apply to planters and farmers grinding and refining their own sugar and molasses; . . . And provided further, that it shall not apply to those planters who granulate syrup for other planters during the rolling season.”</p> <p>First class. When the said gross actual receipts are $2,500,000 and over, the license shall be $3500.</p> <p>This act was passed in pursuance of Article 206 of the state constitution of 1879, which reads as follows:</p> <p>“ Art. 206. The general assembly may levy a license tax, and in such case shall graduate the amount of such tax to be collected from the persons pursuing the several trades, professions, vocations and callings.. All persons, associations of persons and corporations pursuing any trade, profession, business or calling, may be rendered liable to such tax, except clerks, laborers, clergymen, school teachers, those engaged in agricultural, horticultural, mechanical and mining pursuits, and manufacturers other than those of distilled alcoholic or malt liquors, tobacco and cigars and cottfon'seed oil. No political corporation shall impose a greater license tax than is imposed by the general assembly for state purposes.”</p> <p>Defence: First, that the business of refining sugar and molasses is exempt from the payment of any license tax, because it is one of those manufactures enumerated in Article 206 as entitled to exemption. Second, that the act of 1890 “ violates the Constitution of the United States, and is void in so far as it attempts to impose a license tax on this defendant, because said act denies to this defendant the equal protection of the laws of the State, inasmuch as said act does not impose equally a license tax on all persons engaged in the business of refining sugar and molasses, but discriminates in favor of planters who refine their own sugar and molasses, and in favor of planters who granulate syrups for other planters during the rolling season.”</p> <p>The court, being of opinion that the business carried on by the defendant company was that of a manufacture!’, dismissed the petition. On appeal to the Supreme Court, that court was of opinion that the defendant was not entitled to exemption under Article 207 of the constitution, (not now in question,) which exempted certain manufacturers, and ordered a judgment for $3500 with interest and costs for the license tax for the year 1897. But, upon the attention of the court being called by a petition for rehearing to Article 206 of the constitution, above quoted, that court delivered a new opinion to the effect that the defendant was not a manufacturer, and therefore not entitled to an exemption by Article 206, and that the exemption of planters who refine their own sugar did not deprive the defendant of the equal protection of the laws. It further revised its judgment, and held the State entitled to recover for each of the years from 1892 to 1897, and rendered judgment for the sum of $3500, for each of said years. Whereupon defendant sued out a writ of error from this court.</p>

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>The case is. stated in the opinion.</p>

Held: That the cesser clause did not affect the liability of the charterers to the ship owners for demurrage according to the charter-party.

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.</p> <p>The case is stated in the opinion of the court.</p>

<p>ORIGINAL.</p> <p>No Number.</p>

<p>An assignment of error in this court that the decision of a state Supreme. Court was inconsistent with certain paragraphs of an alleged brief putting forward a Federal question, does not amount to a compliance with the requirements of § 709 of the Eevised Statutes.</p> <p>Where a Federal question is raised in the state courts, the party who brings the case to this court cannot raise here another Federal question, which was not raised below,</p>

October 19, 1894, Lucy Dixon, as administratrix of Alexander Dixon, brought her action against the Chesapeake and Ohio Railway Company, R. H. Chalkey and William Sidles in the circuit court of Boyd County, Kentucky, by petition, which alleged— “ That Alexander Dixon departed this life intestate on the 22d day of September, 1894, while a resident of and domiciled in Boyd county, Kentucky; that by an order of the Boyd county court, made and entered on the-day of September,…

Held: “ That an officer of the *145 United States could be sued in ejectment by one claiming the title and the right of possession; that the case was properly removed to the Circuit Court for trial; that the Circuit Court of Appeals had jurisdiction under the act of March 3, Í891, c. 517, 26 Stat. 826 , to .review the judgment of the Circuit Court; and that as “ an incident to ownership of lands on the margins of…

Appellant filed his petition in the Court of Claims, alleging that on October 20, 1861, a band of Apache Indians raided the settlement at San Xavier, near Tucson, Arizona Territory, and stole from his ranch certain cows, horses and mules of the value of $10,330 ; that these Indians were in amity and under treaty relations with the United States at that date; and “ that petitioner is a naturalized citizen of the United States, and has at all times borne true allegiance to the…

On January 1,1889, the Wheeler Lode mining claim, a claim 1500 feet in length by 600 feet in width, was duly located on mineral lands situated in the Tintic mining district, Juab County, Utah. The title to the claim passed to the defendant in error, and its right thereto was kept alive by regular performance of the prescribed annual work.

<p>ERROR TO THE SUPREME,COURT OP THE STATE OE ARKANSAS.</p> <p>The case is stated in the opinion of the court.</p>

<p>Tbe fourth subdivision of section 13 of the act establishing the Court of Private Land Claims, which provides that “no claim shall be allowed for any land the right to which has hitherto been lawfully acted upon and decided by Congress or under its authority” applies to this case, and the claimant has no right to ask that court to pass upon its claim.</p>

This was a cause brought to this court on a certificate from the judges of the Circuit Court of Appeals of the Eighth Circuit. A statement of the facts and the questions put will be found in the opinion of the court.

A statement somewhat in detail of the admitted facts concerning this protracted and involved litigation is essential in order to simplify and make clear the issues which arise for decision on this record. Jean Baptiste Cavailhez, a native of France, took up his residence about 1849 in what is now known as the parish of Yermilion, Louisiana. He married Earnestine Diaz, and they there lived together as man and wife, where a daughter, Marcelline, was born.

The facts are these: Prior to 1880 certain residents of Maryland died, leaving property to Columbus C. Baldwin, a minor. After the settlement of the estates of the decedents a guardian of the estate of said minor was appointed by the Orphans’ Court of Washington County, Maryland.

Held: that, in this legislation a valid contract was created, providing for the taxation of all railroad property (lands included) on the basis of a per cent of the gross earnings, which contract was impaired by the legislation of 1896, withdrawing the lands from the arrangement, and directing their taxation according to their actual cash value; that as to the St. Paul & Duluth Railroad Company a contract was made, and…

On June 10,1885, the petitioner delivered to Alexander Cohen, in the State of Montana, a life insurance policy for $3000, conditioned upon the annual payment of a premium of $89.61. Upon it the insured paid premiums up to and including June 10, 1892. No subsequent premiums were paid. On September 21, 1897, he died. His wife, Tine Cohen, was the beneficiary named in the policy.

Held: in Nathan v. Louisiana, 8 How. 73 , that a broker dealing in foreign bills of exchange was not engaged in commerce, but in supplying an instrument of commerce, and that a state tax on all money or exchange brokers was not void as to him as a regulation of commerce.

<p>In this record there is no averment and no proof of any violation of law by the assessors of New York. The mere fact that the law gives the assessors in the case of corporations two chances to arrive at a correct valuation of the real estate of corporations when they have but one in ■the case of individuals, cannot be held to be a denial to the corporation of the equal protection of the laws, so long as the real estate of the corporation is, in fact, generally assessed at its full value.</p> <p>This court cannot, with reference to the action of the public and sworn oficiáis of New York city, assüme, without evidence, that they have violated the laws of their State, when the highest court of the State refuses, in the absence of evidence, to assume such violation.</p>

This case comes here .by writ of error to the Supreme Court of Minnesota to review the judgment of that court, affirming the judgment of the District Court, directing the plaintiff in error and the WilLmar and Sioux Falls Railway Company to make track connections with each other at Ilanley Falls, in the State of Minnesota, where their respective tracks intersect.

<p>EBBOE TO THE SUPBEME COUET OF THE STATE OF MINNESOTA.</p> <p>The case is stated in the opinion of the court..</p>

This was an action originally instituted in the District Court of Hunt County, Texas, by Ignats.Popper and Edward Popper, (doing business under name of I. Popper & Brother,) to recover upon a certain promissory note executed May 26,1891, by John H. Cooke and.

<p>ORIGINAL.</p> <p>The case is stated in the opinion of the court.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.</p> <p>The cage is stated in the opinion of the court.</p>

By an act of the general assembly of the State of Missouri,approved on May 31, 1895, provision was made for the regis: tration of voters in cities which then had or thereafter might have a population of over one hundred thousand inhabitants. This law became operative in the cities of St. Louis, Kansas City and St. Joseph.

The certificate in this case was as follows : “ This action was brought originally in the superior court for Yanderburg County, in the State of Indiana, on the- 28th of August, Í897,-by the plaintiff in error, a citizen of Indiana, against the defendants in error, to recover damages for personal injuries said to have been sustained by the plaintiff in error, in March, 1897, through the negligence of the defendants in error in the operation of a railway train, and the failure…

Held: that such paper parcels were not original packages within-the meaning of the law, and that such importations were evidently made for the purpose of evading the law of the State prohibiting the sale of cigarettes.

This was a writ of error to review the conviction of the Railway Company for failing to furnish separate coaches for the transportation of white and colored passengers on the line of its road, in compliance with a statute of Kentucky enacted May 24, 1892, c. 40, the first section of which reads as follows: “ § 1.

This was an action of tort instituted by Snell in the Court of Common Pleas of Hamilton County, Ohio, against the Street Railway Company, to recover damages for personal injuries alleged to have been caused by its negligence.

Held: That before applying to a Circuit Court of the United States for a writ of habeas corpus he should have exhausted his remedy in the- state court, either by setting up the Federal question on his appeal to the Supreme Court, or by applying to the state court for a writ of habeas corpus.

This was a petition by Tyler uO the Supreme Judicial Court of Massachusetts for a writ of prohibition to be directed to the Judges of the Court of Registration to prohibit them from further proceeding under what is known as the Torrens Act in the registration of a certain parcel of land described in the application, or in the determination of the boundary between such parcel of land and land of petitioner.

Held: not as a carrier, but for the benefit of the owners and to aid them in the transaction of their business, as their bailee; and that the Peoria Company was hence not responsible as a carrier under any view, and under the proof was not liable as a warehouseman. In effect, all the contentions of the intervenor rest upon a denial of these propositions.

<p>This case having been argued with No. 12, ante, 415, at the same time and by the same counsel, the decision of the court in that case is followed in this.</p>

Held: awaiting orders for further movement, the cars and contents were destroyed by the fire in question. The Circuit Court of Appeals reversed a decree which had been entered by the Circuit Court in favor of the claimant.

<p>certiorari to the circuit court of appeals for the seventh CIRCUIT.</p> <p>The case is stated in the opinion of the court.</p>

On January 13, 1898, the Reymann Brewing Company, a corporation of the State of West Virginia, with its principal office in the city of Wheeling, filed a bill of complaint in the Circuit Court of the United States for the Southern District of the State of Ohio, against Harry Brister, treasurer of the county of Jefferson, State of Ohio, seeking to restrain and enjoin the said Brister from retaining the possession of certain personal property belonging to the brewing company,…

Held: that if the act of 1890 did not as specifically provide for beads as prior acts, glass beads as such were in the legislative mind and their várious conditions contemplated. It was impossible to have in contemplation glass beads, loose, unthreaded and unstrung (445), and not have the exact opposite in contemplation — beads not loose, beads threaded and strung, and made provision for them. What provision ?

<p>It is the meaning of the tariff act of July 24, 1897, to subject to different rates of duty the leaves of tobacco suitable for cigar wrappers and those not suitable when mixed in the same commercial bale or package.’</p> <p>It is the meaning of said act to subject to the duty of one dollar and eighty-five cents per pound the leaves of tobacco suitable for cigar wrappers intermingled in the bales or packages of tobacco (unstemmed) of the description which, in their entirety at the date of the enactment, were commercially known in this country as “ filler tobacco,” and bought and sold by that name, notwithstanding such leaves constitute less than fifteen per centum of the contents.</p>

in Hibbs v. Commissioners, (which under the statutes of Ohio is to be regarded as presenting the point adjudged,) stating that “ an act providing for the improvement of a designated county road is… Held: that the rights of parties arising under contracts not involving questions of a Federal nature are to be determined in accordance with the settled principles of local law as maintained by the highest court of the State at the time such rights accrued.

Held: that for the reasons given the decree must be reversed with directions to dismiss the petition of the Choctaw and Chickasaw Nations, and to make a decree in behalf of the Wichita and Affiliated Bands of Indians fixing the amount of compensation to be made to them on account of such lands in the Wichita Reservation as are not needed in order to meet the requirements of the act of Congress of March 2, 1895, c. 188,…

Held: restrains a seizure of property used for public purposes by such corporation. The Fidelity, (1879) 16 Blatchford, 569. This conclusion, however, is but the application of the exception as to the,mode of execution of a judgment or decree against such a corporation, to which we have referred, and its existence in the admiralty law in all cases has also been denied. The Oyster Police Steamers of Maryland, (1887) 31 Fed.

CIRCUIT. On March 20, 1893, the plaintiff in error, as a shrety, executed with his principal the following note: “ Three years after date, we, or either of us, promise to pay to the order of C. H. Whittemore, as receiver of the McCarthy & Joyce Company, the sum of nine thousand ($9000.00) dollars, with interest at six per cent per annum from date till paid.

Two indictments were found by the grand jury of Independence County, Arkansas, against Schlierholz, appellee herein, for alleged violations of the statutes of Arkansas. One indictment charged the taking possession, unlawfully, .of certain timber; the other, the unlawful marking of timber. Upon such indictments Schlierholz was taken into custody by the appellant John A. Hinkle, as sheriff of Independence County.

This was an action commenced in the District Court of Bastrop County, Texas, on January 31, 1899, by the defendants in error, as plaintiffs, to recover damages sustained by the death of their father, charged to have been occasioned through the negligence of the railway company.

This was a proceeding for the settlement of the final account of Mary Louise Kenaday, as executrix of Alexander M. Kenaday, in the Supreme Court of the District of Columbia, holding a special term for orphans’ court business. Alexander M. Kenaday died in the District of Columbia, March 25, 1897, leaving a will, which was probated in the orphans’ court of the District at the April term, 1897, and was as follows: “Tn the name of God, Amen.

Held: did not and could not arise, inasmuch.as the bonds which the constitution provided should be sold would be, when issued by the Board of Liquidation, subordinate to all the contract rights above stated.

This was a proceeding commenced by the Postal Telegraph-Cable Company (hereinafter called the telegraph company) against the Southern Railway Company (hereinafter called the railway company) to acquire by condemnation the right to construct its telegraph line along and over the railway company’s right of way through the State of North Carolina.

Held: that the decree of the Circuit Court of Appeals, in so far as it reversed the decree of the Circuit Court, should be reversed, and the decree of the Circuit Court, dismissing the bill of complaint, should be affirmed. In July, 1895, Harold F. Hádden and James E.' S. Hadden brought an action in the New York Supreme Court for the city and county of New York, against the Natchaug Silk Company, Michael F..

Plaintiff in error, plaintiff below, brought his action against the defendant to recover for injuries sustained while in its employ as fireman. A judgment in his favor was reversed on April 10,1894, by the Circuit Court of Appeals. 23 U. S. App. 319; 9 C. C. A. 487. On a second trial in the Circuit Court the judge directed a verdict for the defendant, upon which judgment was rendered.

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.</p> <p>This was a bill filed in the Circuit Court of the United States for the Northern District of Illinois by the Elgin National Watch Company, a corporation organized under the laws of the State of Illinois, having its principal place of business at Elgin and its office in Chicago, in that State, against the Illinois Watch Case Company, also a corporation of Illinois, with its principal place of business at Elgin, and certain other defendants, citizens of Illinois.</p> <p>The bill alleged:</p> <p>“.That prior to the 11th day of April, A. D. 1868, your orator was engaged in the business of manufacturing watches at Elgin, Illinois, which was then a small town containing no other manufactory of watches or watch cases; that your orator had built up at said town a very large business in the manufacture of watches and watch movements, and that said watches and watch movements, so made by your orator, had become known all over the world, and had been largely sold and used not only in this but in foreign countries.</p> <p>“ . . . That at and before said 11th day of April, A. D. 1868, your orator had adopted the word ‘ Elgin ’ as a trade mark for its said watches and watch movements; that said trade mark was marked upon the watches and watch movements made by your orator, both upon those which entered into commerce in this country and those which were exported to and sold in foreign countries ; that your orator’s watches became known all over the world as Elgin watches, and their origin and source, as a product of your orator’s manufacture, were distinguished from those of all other watches manufactured in any part of the world by said distinguishing word or trade mark, ‘Elgin’; that from said 11th day of April, A. D. 1868, to the present time, your orator, both in the'goods manufactured and sold by it in this country and those exported by it to and sold in foreign countries, has continued to use said trade mark upon its watches and watch movements, and is still using it, and that said trade mark has always served and still serves to distinguish your orator’s product from that of all other manufacturers.</p> <p>“ . . . That at the time of its adoption of said trade mark no other person, firm or corporation engaged in the manufacture or sale of watches was using the word ‘Elgin’ as a trade mark or as a designation to designate its goods from those of other manufacturers, and' that your orator had the legal right to appropriate and use the said word as its lawful trade mark for its watches and watch movements.</p> <p>“ . . . . That the watches and watch movements made by your orator have achieved a very great reputation throughout the world, and that such reputation is of great commercial value to your orator in its business aforesaid.”</p> <p>It was further averred “that on the 19th day of July, A. D. 1892, under the act of Congress relating to the registration of trade marks, your orator caused said trade mark to be duly registered in the' Patent Office of the United States according to law, as by the certificate of said registration, or a copy thereof, duly certified by the Commissioner of Patents, here in court to be produced, will more fully and at large appear.”</p> <p>The bill charged that defendants had infringed the rights of complainant by engraving or otherwise affixing the word “Elgin” to the watch cases made and sold by them; that such watch cases were adapted to receiving watch movements of different construction from those made by complainant; that inferior watch movements were liable to be and often were encased in them, and that when so encased the entire watch, including both movement and case, appeared upon the market with the word “ Elgin ” upon it, théreby leading the public to believe that' the watch as an entirety was made by complainant, and enabling parties wrongfully using complainant’s trade mark to profit by the great reputation of complainant, to palm off other and inferior goods as goods made by complainant, to injure the reputation of complainant as a watchmaker, and to deprive it of a portion of the business and patronage which it would otherwise réceive from the public, to the irreparable damage of complainant.</p> <p>The'prayer was for damages and for an injunction to restrain defendants “ from directly or indirectly making or selling any watch case or watch cases marked with your orator’s said trade mark, and from using your orator’s said trade mark in any way upon watches or watch cases or in the defendants’ printed advertisements, circulars, labels, or the boxes or packages in which their said watch cases are put or exposed for sale.”</p> <p>A demurrer having been overruled, defendants answered denying the legality of the registration of the alleged trade mark, and any attempt on their part to deceive the public or the doing of anything they did not have the legal right to do; and asserting that they had never manufactured or offered for sale watches or watch movements; that they manufactured at Elgin watch cases only; that complainant had never manufactured or sold watch cases with the word “ Elgin ” on them; that the business of the two companies was separate and distinct, and that whenever the defendant company had used the w;ord “ Elgin ” it had usually, if not invariably, been done in connection with some other word, as “ Elgin Giant,” or “ Elgin Commander,” or “Elgin Tiger,” or some other word in combination with the word “ Elgin ”; that defendant company had never tised the word “ Elgin ” alone, or separately, as registered by complainant, upon goods exported to foreign nations or used in foreign commerce, but only in domestic commerce, and to inform the public of the place where watch cases of the defendant company were manufactured; that such watches were sold upon a guarantee running for a number of years, so that it was necessary to-indicate the name of the location where; defendant company \Vas carrying on its business, that purchasers might be able to find the company in case it became necessary to call , upon it to make good its guarantees; “ and that, owing to the distinct lines of business in which the complainant and the defendant company are engaged, no misunderstanding or confusion has arisen or. can arise, as these defendants are informed and believe.”</p> <p>It was further alleged “ that the word ‘ Elgin,’ being a geographical name or word indicating the name of a prominent manufacturing city in which any manufacturer of watches, watch movements or watch cases is at liberty to locate and carry on his business, is not appropriable by any single manufacturing person, firm or corporation, but is open as of common right to the use of any person, firm or corporation carrying on business at the city of Elgin.”</p> <p>Replication was filed, proofs taken, and a hearing had. By leave of court complainant amended its bill, alleging that the watch cases so manufactured and marked by defendants in violation of complainant’s rights were' intended by defendants to be sold in foreign countries, and were in fact exported to and sold in foreign countries.</p> <p>The Circuit Court decreed that the use of the-word “Elgin,” whether alone or in connection with other words, was a violation and infringement of complainant’s exclusive rights in the premises, and that an injunction issue restraining the use of the word alone or in connection with other words or devices, upon watches, or watch cases, or packages containing watches or watch cases, going into commerce with foreign nations or with the Indian tribes, in such a way as to be liable to cause purchasers or others to mistake said watches or the watch movements encased in said watch cases for watches or watch movements manufactured by complainant. 89 Fed. Rep. 487. The case having been carried to the Court of Appeals, that court reversed the decree of the Circuit Court, and. remanded the cause with instructions to dismiss the bill. 94 Fed. Rep. 667.</p>