Volume 191 — United States Reports

Held: in an exhaustive opinion by Mr. Justice Gray, that the enforcement in rem of a lien upon a vessel for *25 repairs and supplies furnished in her home port, was exclusively within the admiralty jurisdiction of the courts of the United States. 'It is equally well established that for causes of action not cognizable in admiralty, either in rem or in 'personam, the States may not only grant liens, but may provide…

Held: that the title was not in the plaintiff. Semble, that the title was in the city, that it had power to convey the land and that the deed exécuted was sufficient so far as the question was open. The case is stated in the

) that-“the title of an amendatory act which gives the title of the original act in full and the number of the section in' its amended form is sufficient.” People v. Parvin, supra, was cited, and it was observed that that case was discussed in Lewis v. Dunne, “and distinguished but not overruled.” And it was also observed that the Panin case had been approved in Francais v. Somps, 92 California, 503. Order affirmed. Mandate forthwith.

<p>It is the duty of a railroad company to use due care to provide a reasonably safe place and safe appliances for the use of workmen in its employ. It is obliged to use the same degree of care to provide properly constructed roadbed, structures and track to be used in the operation of the road.</p> <p>The servant has a right to assume that the master has used due diligence in providing suitable appliances for the operation of his- business and does not assume the risk of the employer’s negligence in making such provision,</p> <p>While an employé who continues without objection in his master’s employ with knowledge of a defective apparatus assumes the hazard incident to the situation, unless the evidence plainly shows the assumption of the risk, it is a question properly left to the jury.</p>

Held: that in the absence of such stipulation the holders were not entitled to the remedies given only by the amending act.

<p>APPEAL .PROM THE CIRCUIT COURT OP THE UNITED STATES POR THE DISTRICT' OP UTAH.</p> <p>On August 25, 1899, appellants commenced this suit in the District Court of Salt Lake County, Utah. By it plaintiffs sought an accounting and the cancellation of a deed of trust „ executed by them to a trustee for the benefit of the defendant. The complaint alleged that “the defendant was and now is a corporation organized and existing under the laws of the State of Colorado.” The deed of trust (copied in the complaint) was executed November 22, 1890, and purports to be “between Antoinette B. Kinney and Clesson S. Kinney, her husband, of the county of Salt Lake and Territory of Utah, • parties of the first part; and Clyde J. Eastman” named as trustee. It was executed before a notary public in Salt Lake County.,</p> <p>' On September 2, 1899, the defendant filed a petition and bond for removal to the Circuit Court of the United States for the District of Utah. That petition alleged:</p> <p>“Your petitioner, The Columbia Savings and Loan Association, respectfully shows to this honorable court that the matter and amount in dispute in the above-entitled suit exceeds, exclusive of interest and costs, the sum or value of two thousand dollars.</p> <p>“That the .controversy in said suit is between citizens of different States, and that your petitioner, the defendant in the above-entitled suit, was, at the time of the commencement of the suit, and still is, a resident and a citizen of the city of Denver and State of Colorado.”</p> <p>On November 28, 1899, the plaintiffs filed a motion to remand the cause to the state court on the ground, that “the amount or matter in dispute therein does not, and at the time said cause was removed from the state court, did not, exceed the sum or value of $2,000, exclusive of interest and costs.” On the same day the defendant "filed in the Circuit Court an answer and cross complaint, by the latter seeking a foreclosure of the trust deed. In the cross complaint it alleged “ that it is a corporation, organized and existing under the laws of the State of Colorado, and is a citizen of said State, and that complainants herein are citizens and residents of Salt Lake City, State of Utah.”</p> <p>Oh December 30, 1899, the plaintiffs gave notice of a motion to amend their motion to remand, by adding as a further ground “ that the diverse citizenship of the parties at the time of the commencement of the suit, and at the time of the removal of said cause from the state court, does not appear upon the record.”</p> <p>On January 2-, 1900, the defendant gave notice of a motion to amend the paragraph heretofore quoted from its cross complaint to read as follows :</p> <p>“First. That your orator, at the time of the commencement of this suit,' was and ever since then, and now is, a corporation organized and existing under and by virtue of the laws of the State of Colorado, and a citizen and resident of the city of Denver and State of Colorado, and that the said plaintiffs, Antoinette B. Kinney and Clesson S. Kinney, at the time of the commencement of this suit, were, and ever since have been, and still are, citizens of the State of Utah, and residents thereof, residing at the city of Salt Lake in the said State of Utah,”</p> <p>And also notice of a motion to aménd the petition for removal by adding this allegation:</p> <p>“ That the plaintiffs, Antoinette B. Kinney and Clesson S. Kinney, and each of them, were, at the time of the commencement of this suit, and still are, citizens and residents of the city of Salt Lake and ’State of Utah.” .</p> <p>On January 6,1900, the motion to remand was denied, and leave given to amend the petition for removal and the cross complaint. Subsequently the case went to trial in the Circuit Court and a decree was rendered in favor of the defendant for the recovery of $4,003.45. and the foreclosure of the trust deed. From such decree an appeal was allowed to this court upon the single question of jurisdiction.</p>

<p>Where, in an action by the United States against a railroad corporation for the conversion of logs cut from government lands, the defendant admits the taking but justifies its action under a statute permitting it to take timber for construction and repair of its railway, the burden of proving that the logs were taken and used in accordance with the statute is upon the defendant. Northern, Pacific It. It. Go. v, lewis, 162 U. ¡3. m,</p> <p>This burden cannot be shifted to the plaintiff because the timber was cut by an agent of the defendant. The presumption attaching to public officers that they act within the scope of :their authority does not apply to agents of private persons sued for conversion.</p>

Ex parte Joins, 191 U.S. 93 (1903), was a case in which the Supreme Court of the United States held that a request for a writ of prohibition was moot, as the lower court case had already been completed prior to the petition being heard at the Supreme Court.

Held: That the instruction was not sufficiently guarded and was erroneous.

<p>•Appeals to this court from decrees of the Circuit Courts of Appeals revising proceedings of the inferior courts of bankruptcy under section 24& of the bankruptcy law, will not lie.</p>

<p>On every writ of error or appeal the first and fundamental question is that of jurisdiction, first of this court and then of the court from which the record comes, and such a question arising on the face of the record cannot be ignored.</p> <p>By the acts of July 12, 1882, March 3, 1887 and August 13, 1888, national banks are, for purposes of the jurisdiction of the United States courts in actions by or against them, to be deemed citizens of the States in which they are located.</p> <p>An action brought by a national banking association in a circuit court of the United States against citizens of another State, where no ground of jurisdiction appears in the record except diversity of citizenship, is not, owing to the mere fact that the plaintiff is organized under the national banking law, one arising under the laws of United States, and under the Judiciary Act of March 3, 1891, the'judgment of the Circuit Court of Appeals is final and, therefore, not subject to review by this court. •</p>

At the June term, 1901, of the Superior Court of Guilford County,. North Carolina, the three parties named as appellants in the first of these cases and as plaintiffs in error in the second were indicted, tried and convicted of the crime of conspiracy. Daly was sentenced to the penitentiary for seven years and Howard and Hawley' for ten years each.

Held: under the practice which disqualified interested witnesses, that a liability for costs was sufficient to render a witness incompetent. 1 Greenl.

Bill in equity to restrain the appellant from supplying its inhabitants with incandescent lights or other electric lighting in competition with the appellee.

Held: and it is not disputed, that the contract was within Rev. Stat. §3744, and not having been “reduced to writing, and signed by the contracting parties with their names at the end thereof,” could not have been sued upon if it had not been performed. Clark v. United States, 95 U. S. 539 ; South Boston Iron Co. v. United States, 118 U. S. 37 . See Monroe v. United States, 184 U. S. 524 .

The facts appear in the' opinion of the court. As to power to issue writs of mandamus and functions of writ, see § 3, Art. VI, Const., and § 4301, R. S. Missouri; State y. Weeks, 93 Missouri, 499; State v. Rombaner, 104 Missouri, 619; State v. Fraker, 166 Missouri, 130, 140; State v. Renick, 157 Missouri, 292, 298; State v. St. Louis, 145 Missouri, 551, 577; State- v.- Joplin Water Works, 52 Missouri App. 312; 19 Am. ■& Éng. Ene. 2d ed. 725, and cases cited.

Held: however, that when the business of the company, which is wholly within the State, is but a mere incident to its interstate business, such fact would furnish any-obstacle to the valid taxation by the State of the business of the company which is entirely local.

On the fourth day of January, 1898, the city of Defiance, a municipal corporation of the State of Ohio, ’ by its solicitor, filed a bill in equity against the Council of the city of Defiance and the Defiance Waterworks Company, in the Court of Common Pleas of Defiance County, Ohio, praying that future payments under an alleged contract of August 17, 1887, between the Council of the City and Bullock & Company, who had subsequently assigned it to the Water Company, for the…

Held: in effect, in Ryder v. Holt, 128 U. S. 525 , and we see no reason to depart from that ruling. , But the evidence m this record' does not show that defendant used the name of its preparation on merchandise intended to be so transported, while the sales proved were sales in the city of Chicago and'Northern District of Illinois, and there is nothing to indicate that the preparation was intended to be used in foreign or…

This case .involves the validity under the Constitution of the United States of the statute known as the eight-hour law of Kansas of 1891, p. 192, c. 114, being sections 3827, 3828 and 3829 of the General Statutes of 1901 of that State.

This case arises out of thé conflicting claims by the Circuit Court of the United States for the Western District of Kentucky, and the Circuit Court of Jefferson County, Kentucky, Chancery Branch, as to the right to administer the property and affairs of the.Evening Post Company, a corporation of Kentucky.

<p>ERROR TO THE SUPREME COURT OP THE STATE OP MINNESOTA.</p> <p>This was an action in ejectment commenced on February 15, 1900, by John P. O’Connor against Jacob Gertgens, in the District Court of the Sixteenth Judicial District of the State of Minnesota, to recover possession of the southwest! of section 9, township 125, range 45 west. The defendant appeared and' answered. A trial was had before the court without a jury, resulting in a judgment for the plaintiff, which was, on April 4, 1902, affirmed by the Supreme Court of the State, 85 Minnesota, 481,- and thereupon this writ of error was sued out.</p> <p>The facts are these: The tract was surveyed public land, situate in the county of Traverse, and lying within the twenty-mile indemnity limits of the grant to the St. Paul, Minneapolis and Manitoba Railway Company, as defined by acts of Congress dated respectivelj March 3, 1857,11 Stat. 195, c. 99, and March 3, .1865, 13 Stat. 526, c. 105. It, with other lands, was withdrawn from settlement and entry under the land laws of the United States by executive withdrawal, dated May 25, 1869. In April, 1885, the tract, being within the indemnity limits, was, with other tracts, selected by the railway company as indemnity for deficiencies claimed to exist within the place limits. There selections were all finally cancelled on October 23, 1896.</p> <p>Prior to April 15,1891, the land was‘unoccupied, -but at that time the defendant, being fully qualified as a homestead claimant, took possession with a view of claiming it as a homestead under the laws of the’United States, has ever since occupied it as his homestead and made improvements thereon of the value of $1,200. He made application at the lóqal land office for a homestead entry but it was refused by the local land officials, and such refusal sustained on appeal by the Commissioner of the General Land Office. The refusal was on the ground that the land was within the twenty-mile indemnity limits of the railway company, and had been selected by the company in 1885, long before the defendant went upon the land.</p> <p>In July, 1880, the railway company entered into a written agreement with the Rev. John Ireland, a citizen of the United States, by which the company gave him the sole and exclusive 'right and authority to place settlers upon and sell to them all the lands in the counties of Big Stone and Traverse, to which the railway company might be entitled by virtue of the land grants of March 3, 1857, and March 3, 1865, and which were included within the indemnity limits of said grants. This •-contract expired December 31, 1881. On March 30, 1883, the railway* company made a new agreement, which, after referring to the prior contract, contained this stipulation;</p> <p>“Now, therefore, the contract herein referred to having expired on the 31st day of December, A. D. 1881, and the R. R. Co. not yet having acquired title to the lands in question, it is now agreed between the R. R. Co. and the Rev. John Ireland that when title to these lands are acquired by the R. R. Co., and notice of the sáme is given to Rev. John Ireland, he shall have the privilege and the right at any time within sixty days of date of said notice of purchasing for himself or such parties as he may designate, due regard being had, as stated in supplement to said contract, for settlers who may have obtained any claim upon such lands previous to the date of said contract, any or all of the lands included in said contract, not to exceed the amount of ■ 50,000 acres at uniform price of four dollars per acre, ten per centum of all receipts from said lands at the above price to be furthermore paid to the said Rev. John Ireland according as the monies are received by the company, when such lands shall be purchased by Rev. John Ireland or those whom he may designate, the conditions of sale usual with the company shall be observed or at least the interest upon the purchase money shall be paid from the' date of purchase to the fifteenth day of December following, when the usual condition shall be enforced'.”</p> <p>This agreement was duly recorded in the office of the register of deeds of Traverse County, Minnesota. On February 8, 1896, Ireland made application to the Land Department for leave to purchase from the government the land in controversy under the provisions of the fifth section of the act of Congress of March 3, 1887, '24 Stat. 556, c. 376. This application was contested by the defendant, but the claim of Ireland was sustained bj'- all the officials of the Land Department, from the local officers up to the Secretary of the Interior. A patent was thereupon issued to Ireland, from whom the plaintiff obtained a conveyance. The act of March 3, 1887, was an act directing the Secretary of the Interior to adjust, in accordance with the decisions of the Supreme Court, the several railroad land grants made by Congress. Section 5, under which Ireland made his claim, is copied in the margin.1</p>

Held: as a matter of law, to entail the consequences of a want of ordinary care and prudence. And this proposition substantially embodies the asserted principle of law which was relied upon at bar as sustaining the judgment ' below. We are of the opinion, however, that the rule as thus contended for is unfounded in reason and unsupported by the ■ weight of authority.

McLoughlin v. Raphael Tuck & Sons Co., 191 U.S. 267 (1903), was a United States Supreme Court ruling dealing with copyright. It dealt with the interpretation of Section 4963 of the Revised Statutes of the United States before and after the pertinent section's amendment in 1897.

This is an appeal, by the bank as complainant below, from a decree of the United Stages Circuit Court for the Eastern District of Virginia, dismissing its bill with costs. 107 Fed. Rep. 570.

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEARS FOR THE SEVENTH CIRCUIT.</p> <p>This ■ case comes here upon certiorari, applied for by the petitioner, who was the administratrix of the estate of Herman D. Cable, deceased. 186 U. S. 482. The suit was brought in the Circuit Court of the United States for the Northern District of Illinois by complainant, The United States Life Insurance Company, of the city of New York and a citizen of •that State, against Alice A. Cable, a citizen of the State of Illinois,'to have a certain policy of insurance for $50,000, payable as therein stated, upon the life of the said Herman D. Cable, delivered up for cancellation, on the ground that the same had been procured by the fraud of the agents of the deceased.. The bill averred that the complainant was an insurance- qompany of New York, lawfully engaged in doing business throughout the United States, and particularly in Illinois, under a^permit or license duly granted therefor; that it had issued its policy upon the life of Herman D. Cable, and that it was procured by the fraud and fraudulent representations of his agents, such fraud and fraudulent representations being set forth at length; also that defendant had commenced a suit in the state court of Illinois to recover upon the policy, which- suit was instituted about one and a half hours prior to the filing of complainant’s original bill. A supplemental and amended bill was filed, in which, among other things, it was alleged:</p> <p>“10. Your orator further avers that the Constitution and laws of the United States of America confer upon your orator the right to remove into this court said action at law so begun against your orator; that, on the other hand, the State of Illinois, by legislative enactment, has sought to prevent the removal to this court by insurance companies of actions similar to said action so begun by said administratrix, and has practically destroyed such right or made its exercise impracticable, by providing, in substance, that an insurance company shall forfeit and lose its right to do business in the State of Illinois upon removing any such action into this court; that by removing said action to this court, your orator might lose its right to transact business in the State of Illinois, and would certainly become involved in serious controversy with said State respecting the transaction of any subsequent business by your orator in said State; that the laws of said State upon certain questions of general insurance law, as interpreted by its highest legal tribunal, and applicable to the facts in this case, are-somewhat different from the laws of the United States-as interpreted by the Federal courts, upon the same questions, and from the standpoint of the laws of the United States, are unduly and erroneously adverse to insurance companies; that your orator is entitled to an application of the law according to the decisions of the Federal courts; and that under the facts and circumstances, hereinbefore set forth in this bill, your orator is without a due and proper remedy at law in respect to the claim of said administratrix under said policy of insurance, but is without any remedy at law whatever in this court.”</p> <p>To- this bill the defendant interposed a demurrer, among other things, for want of equity, and that demurrer was sustained by the Circuit Court but upon appeal to the Circuit Court of Appeals for the Seventh Circuit the decree sustaining the demurrer was overruled and the case remanded to the Circuit Court. 98 Fed. Rep. 761; same case, 39 C. C. A. 264.</p> <p>- An answer was then put in by the administratrix of Cable’s estate denying any fraud, and averring that she had, before the suit in the Federal court was commenced, herself commenced an action upon the policy in a proper state court of Illinois, and that it was her intention and desire to push such action to a speedy conclusion if permitted by the Federal court.</p> <p>The suit herein was tried and a decree entered that the policy was procured on behalf of the deceased by constructive fraud, and that no actual fraud was intended or practiced in the delivery of the same, and it was thereupon decreed that the policy should be delivered up and cancelled. The defendant appealed from such decree to the Circuit Court of Appeals, and the complainant took a cross-appeal so as to bring up the findings of fact as to the constructive fraud, so that, as counsel said, “the case might be heard and considered in the Circuit Court of Appeals upon the whole evidence, regardless of the fin flings ot the master and of the Circuit Court.” This was done for the reason that, in counsel’s belief, the evidence •showed a deliberate and intentional concealment on the part of Lord, the agent of the deceased, and therefore a plain fraud perpetrated by such agent. The Circuit Court of Appeals affirmed the judgment and upon application this court granted the writ of certiorari as stated.</p> <p>Where a suit at law is brought against an insurance company for a loss sustained under an insurance policy, a court of chancery has no jurisdiction to cancel the policy, since every ground set forth in the bill of complaint can be set up and tried as a defence in the action at law. § 723, U. S. Rev. Stat. A suit in equity will not lie to cancel an insurance policy after the death of the insured. Phoenix Life Ins. Co. v. Bailey, 13 Wail. 616.</p> <p>The Judiciary Act provides that suits in equity shall not be sustained in either of the courts of the United States iriany. case where a plain, adequate and complete remedy may be had at law. Hipp v. Babin, 19 How. 271; Parker v. W. L. Cotton & Woolen Co., 2 Black, 545; Boyce v. Grundy, 3 Pet. 210; Graves v. Ins. Co., 2 Cranch, 444; 1 Stat. at L. 82; Foley v. Hill, 1 Philadelphia, 399; Fire Ins. Co. v. Delavan, 8 Paige Ch. R. 422; Alexander v. Murihead, 2 Desaus, 162; 5 Am. Law Rep. 564; Home Ins. Co. v. Stanchfield, 1 Dill. 424; Mtna Life Ins. Co. v. Smith, 73 Fed. Rep. 318; Thrale v. Ross, 3 Bro. Ch. 56; Arundel v. Holmes, 4 Beav. 325; Norris v. Day, 4 You. & C. 475. The respondent had complied with the provisions of the Illinois Statutes, 2 Hurd’s R. S. 1899, ch. 73, by filing its written application for a license and was regularly authorized to do business within the State of Illinois.</p> <p>A foreign insurance company has no right to do business in the State without license and contracts entered into by it are controlled by the statutes of the State. New York Life Ins. Co. v. Cravens, 178 U..S. 389.</p> <p>The statute of the State under which respondent was licensed does not forbid a removal to the Federal court of suits brought against it in the state court, but simply reserves the right to revoke the license issued under the written agreement given by respondent to the State, if it does not submit its controversies to the judgment of the state courts and stand upon the same footing as domestic companies. This statute is constitutional and the agreement made by the respondent under which it procured its license is valid and binding. Doyle v. Continental Insurance Co., 94 U. S. 535.'</p> <p>The. Circuit Court of the United States cannot enjoin an action in the state court. Prior to the filing of the bill of complaint an action at law had been instituted against the. respondent in the state courts and a summons issued therein and placed in the hands of the sheriff for service. Under the law of the State’of Illinois jurisdiction attaches by the filing of a praecipe and issuance of a summons thereunder. Collins v. Manville, 170 Illinois, 614; Schroeder v. Merchants & Mechanics Ins. Co., 104 Illinois, 71; Farmers Loan & Trust Co. v. Lake St. Elevated B. B. Co., 177 U. S. 51, and see § 720, U. S. Rev. Stat.; Diggo v. Wolcott, 4 Cranch, 179; Biggs v. Johnson Co., 6 Wall. 195; Orton v. Smith, 18 How. 265; Haines v. Carpenter, 91 U. S. 267; In re Sawyer, 124 U. S. 219,</p> <p>The disclosure made to the agent of the company was sufficient to put him upon guard and was ample notice to the company of the then condition of Mr. Cable’s health and that the delivery of the policy with, such knowledge was 'a waiver of its provision concerning the delivery of the same during the good health of the insured. Phoenix Life Insurance Co. v. Baddin, 120 U. S. 183; Marston v. Kennebec Ins. Co., 89 Maine, 266; German American Ins. Co. v. Morris, 100 Kentucky, 29; Joyce on Ins. sec. 1870; Manhattan Life Ins. Co. v. J. P. Willis & Bro., 60 Fed. Rep. 236.</p> <p>Under the facts the remedy at law of respondent is complete and adequate. The effect of a decree in the present case would not necessarily be a final adjudication as to the rights of the parties, should there be a dismissal of the bill. Every defence had by the insurance company can be made in the suit brought in the state court. The question then arises whether such a clear and uncontroverted case of fraud has been made as will authorize jthe court to sustain the bill. Southern Development Co. v. Silva, 125 U. S. 247; Farnsworth v. Duffner, 142 U. S. 207; Atlantic Delaine Co. v. James, 94 U. S. 207; Morse Arms Mfg. Co. v. Winchester Bepeating Arms Co., 33 Fed. Rep. 184; As to § 912, 2 Pomeroy’s Equity, see § 914 same volume. See also in reply to cases on respondent’s brief: Wood v. Am. Fire Ins. Co., 149 U. S. 382;'Firemen’s Ins. Co. v. Thomas, 92 Fed. Rep. 127; McMaster v. N. Y. Life Ins. Co., 183 U. S. 25; Sioux City v. N. A. Trust Co., 173 U. S. 99; N. Y. Life Ins. Co. v. Cravens, 178 U. S. 389; Mutual Benefit v. Higgenhotham, 95 U. S. 380.</p> <p>When the insurance company issues its policy and forwards it to its agent for delivery, the insured would have the right to compel the delivery of the policy to him upon payment of the premium notwithstanding the agent might refuse to deliver the policy. New York Life Ins. Co. v. Babcock, 104 Georgia, 67; Newark Machine Co. v. Kenton Ins. Co., 50 Ohio St. 549.</p> <p>When the proposition contained in the application is accepted by the company and its policy issued, it becomes a complete contract and from thenceforward the insured is entitled to the benefits of his contract. Travis v. Nederland Life Ins. Co., 104 Fed. Rep. 486; 43 C. C. A. 653.</p> <p>Where the policy is dated as of a certain time, it goes into force as of that date, although the policy may not be delivered and the premium paid until a subsequent date. McMaster case, supra; Mutual Life v. Thomson, 94 Kentucky, 253; Yonge v. Equitable Life Ins. Co., 30 Fed. Rep. 902.</p> <p>Whether or not there was a consummated contract on the 21st of February depends, obviously, upon the intent or agreement of the parties. By the application the parties agreed that the policy should not take effect until delivery; and acceptance by Cable was essential to make a binding delivery. Smith v. Provident Savings Life Assurance Society, 13 C. C. A. 284; 65 Fed. Rep. 765; Equitable Life Assurance Society v. Me-Elroy, 28 C. C. A. 365; 83 Fed. Rep. 631; Piedmont, etc., Life Assurance Co. v. Ewing, 92 U. S. 377; Giddings v. Ins. Co., 102 U. S. 108; Markey v. Mutual Benefit Life Ins. Co., 126 Massachusetts, 158.</p> <p>The application provided that the policy should not take effect until payment of the first premium, and that only the president, together with the secretary or the actuary, should have power to waive any condition of the policy, while the policy further provided that agents could not modify or change the contract, of which the application was made a part. There could be no delivery without payment, for the agent could not waive the effect of these limitations. Davis v. Mass. Mut. L. Ins. Co., 13 Blatch. 462; 7 Fed. Cas. 141, case 3642; Paine v. Pacific Mut. L. Ins. Co., 2 C. C. A. 459; 51 Fed. Rep. 689; United Firemen’s Ins. Co. v. Thomas, 27 C. C. A. 42; 82 Fed. Rep. 406; Kohen v. Mut. Reserve Fund Life Assn., 28 Fed. Rep. 705; Misselhorn v. Mut. Reserve Fund Life Assn., 30 Fed. Rep. 545; N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519, 530; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308.</p> <p>The equitable jurisdiction of the Circuit Court' of the United States was properly invoked and exercised, under the special circumstances of this case, because respondent did not have a plain, adequate, and complete remedy at law as such remedy is understood in the Federal courts. It could not itself institute any legal proceeding there, nor could it freely remove to that court any legal proceeding brought against it in the state court. Its constitutional right to have, through removal, any controversy at law with petitioner adjudicated in a Federal court had been hampered, embarrassed, and practically destroyed by an Illinois’Statute. The remedy at law which is a bar to equitable relief in a Federal court must exist on the law side of the same court. Lewis v. Cocks, 23 Wall. 466, 470; Kilbourn v. Sunderland, 130 U. S. 505, 514; Root v. Railway Co., 105 U. S. 189, 216; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310; Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 391; Davis v. Wakelee, 156 U. S. 680, 688; Watson v. Sunderland, 5 Wall. 74, 79; Rich v. Braxton, 158 U. S. 375, 406; Boyce’s Executors v. Grundy, 3 Pet. 210, 215; Sullivan v. Portland, etc:, R. R. Co., 94 U. S. 806, 811; Drexel v. Berney, 122 U. S. 241, 252; Gormley v. Clark, 134 U. S. 338, 349; Allen v. Hanks, 136 U. S. 300; Tyler v. Savage, 143 U. S. 79, 95; Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 12; Smith v. American Nat. Bank, 32 C. C. A. 368, 376; 89 Fed. Rep. 832; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310, 315.</p> <p>The Illinois statute against removals is doubtless repugnant to the Federal Constitution and void, along with the agreement not to remove required by it. Barron v. Burnside, 121 U. S. 186; Southern Pacific Co. v. Denton, 146 U. S. 202; Galveston, etc., Railway v. Gonzales, 151 U. S. 496; 502; Barrow Steamship Co. v. Kane, 170 U. S. 100, 111; Blake v. McClung, 172 U. S. 239, 255; Chattanooga R. & C. R. Co. v. Evans, 14 C. C. A. 116, 120; 66 Fed. Rep. 809, 814; Metropolitan L. Ins. Co. v. M’Ndll, 81 Fed. Rep. 888; Mut. L. Ins. Co. of N. Y. v. Boyle, 82 Fed. Rep. 705; Commonwealth v. E. Tenn. Coal Co., 30 S. W. Rep. 608 (Kentucky); Commonwealth v. Jellico Coal Min. Co., 30 S. W. Rep. 611 (Kentucky); Dayton Coal & Iron Co. v. Barton, 183 U. S. 24, 25,</p> <p>Doubtless respondent might, upon learning of the action at law brought against it, have abandoned its bill and removed the action at law to the Federal court, but that coruse would have been fraught with danger, for a controversy with the state superintendent of insurance, and an attempted revocation of respondent’s license, would have been certain to follow. Lewis v. Cocks, 23 Wall. 466; Root v. Railway Co., 105 TJ. S. 189, 216; Kilbourn v. Sunderland, 130 TJ. S. 505, .514; Smith v. Am. Nat. Bank, 32 C. C. A. 368, 376; 89 Fed. Rep. 832; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310, 315} Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 391. ■</p> <p>As respondent did' not have the proper remedy at law in the Federal court, it is immaterial whether respondent had such a remedy in a state court. The equitable jurisdiction of the > Federal courts does not depend, and cannot be made to depend, upon the adequacy of proceedings at law in the state courts. Bean v. Smith, 2 Mason, 252; 2 Fed. Cas. 1143,1150, case 1174; Breeden v. Lee, 2 Hughes, 484; 4 Fed. Cas. 50, case 1828; Mayer v. Foulkrod, 4 Wash. Cir. Ct. 349; 16 Fed. Cas. 1231, case 9341; Coler v. Board of Commissioners, 89 Fed. Rep. 257; Niagara Fire Ins. , Co. v. Cornell, Í10 Fed. Rep. 816; Nat. Surety Co. v. State Bank, 120 Fed. Rep. 593, 602; Mississippi Mills v. Cohn, 150 TJ. S. 202; Smyth v. Ames, 169 TJ. S. 466, 516. See, also, Stanton v. Embry, 46 Connecticut, 595.</p> <p>Jurisdiction and procedure of the Federal courts cannot be made to depend upon, nor be controlled by, state legislation and state procedure; otherwise state legislation, by extending legal remedies, might destroy all equitable jurisdiction on the part of Federal courts. The jurisdiction and procedure in the Federal courts of law and of equity depend upon essential principles and distinctions as understood and applied by the Federal courts themselves. Bean v. Smith, 2 Mason, 252; 2 Fed. Cas. 1143, ease 1174; Mayer v. Foulkrod, 4 Wash. Cir. Ct. 349; 16 Fed. Cas. 1231, case 9341; Robinson v. Campbell, 3 Wheat. 212, 222; Mississippi Mills v. Cohn, 150 U. S. 202; Smyth v. Ames, 169 U. S. 466, 516.</p> <p>Nor if that were material did respondent have a plain, adequate and complete remedy in the state courts of Illinois, because it could not have its controversy with petitioner properly decided there in accordance with correct principles of general insurance law as understood and applied by this court, and because it might not have been able to interpose in an action at law the defence that the policy had been procured by fraud. This shows the peculiar value of the right to be in the Federal court. The substantial questions involved are questions of general law .upon which the Federal courts exercise their own - judgment, independently of state decisions. Carpenter v. The Providence Washington Ins. Co., 16 Peters, 495; 511; Burgess v. Seligman, 107 TJ. S. 20, 33; B. & O. R. R. Co. v. Baugh, 149 U. S. 368; Gloucester Ins. Co. v. Younger, 2-Cur. 338; 10 Fed. Cas. 495, 500, case 5487; Maier v. Fidelity Mut. Ufe Assn., 24 C. C. A. 239; 78 Fed. Rep. 566, 572; Wash-burn & Moen Mfg. Co. v. Reliance Marine Ins. Co., 27 C. C. A. 134; 82 Fed. Rep. 296.</p> <p>This court must consider its views of the principles of gen- ■ e'ral insurance law to be sound, and any contrary views of other courts to be erroneous. This court and the Supreme Court of Illinois appear to differ radically. One or the other must be wrong, and if the Illinois Supreme Court is wrong, then respondent could have had no remedy at all in tñe state court from the standpoint of this court. Bean v. Smith, 2 Mason, 252; 2 Fed. Cas. 1143, 1150, case 1174.</p> <p>.It is settled in this court that a mere solicitor or a local agent of a life insurance company cannot bind his company, affirmatively or by waiver, through his agreements or knowledge, when plain and appropriate limitations and restrictions upon his authority are brought to the attention of an applicant for insurance by being embodied in the application. Davis v. Mass. Mut. L. Ins. Co., 13 Blatch. 462; 7 Fed. Cas. 141, case 3642; Paine v. Pacific Mut. L. Ins. Co., 2 C. C. A. 459; 51 Fed. Rep. 689; United, Firemen’s Ins. Co. v. Thomas, 27 C. C. A. 42; 82 Fed. Rep. 406; Kohen v. Mut. Reserve Fund Life Assn., 28 Fed. Rep. 705; Misselhorn v. Mut. Reserve Fund Life. Assn., 30 Fed. Rep. 545; N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519, 530; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308.</p> <p>The Supreme Court of Illinois holds that any person who receives applications for life insurance, collects premiums, and delivers policies is authorized to waive a limitation or restriction upon his own authority contained in' a policy or in an application, and to waive other provisions of the contract, and to bind the company by agreement or waiver in connection with the act of manual delivery, without regard to the expressed limitations or restrictions; and that court has expressly indicated1 a disinclination to accept the rule enunciated in the Fletcher case, 117 U. S. 519, and repeated in the Grand View • Bldg. Association case, 183 U. S. 308. John Hancock Mutual Life Ins. Co..v. SchlinJc, 175 Illinois, 284, 289, 290; Royal Neighbors of America v. Boman, 177 Illinois, 27, 31.</p> <p>' Under a recent decision of the Supreme Court of Illinois question exists whether the defense of fraud in procuring an insurance policy, not affecting its manual execution, can be made available in an action at law, or can only be made available in a suit in equity to cancel the policy. Robinson v. Sharp, 201 Illinois, 86; 66- N. E. Rep. 299. The remedy of respondent in a.state court- of Illinois is, therefore, very far from being “plain” and “adequate” at law.</p> <p>There had been no final and conclusive election to take the commuted value of the policy, and the possibility of a multi-plieity of suits, or number of successive suits, against respondent for separate annual installments under the policy was additional ground for invoking the jurisdiction of a court of equity. Illinois Statutory Provisions- concerning the “Administration of Estates,” Washington v. L. & N. By. Co., 136 Illinois, 49, 56; Boyce’s Executors v. Grundy, 3 Pet. 210, 215; Buzará v. Houston, 119 U. S. 347, 352; Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 392; Town of Springport v. Teu-tonia Sav. Bank, 75 N. Y. 397.</p> <p>Resort to equity was further sustainable on the ground that respondent might lose important evidence through lapse of time. Boyce’s Executors v. Grundy, 3 Pet. 210, 215; Schmidt v. West, 104 Fed. Rep. 272; Fuller v. Percival, 126 Massachusetts, 381; 2 Story’s Eq. Juris. § 700.</p> <p>Under the circumstances the discretionary jurisdiction of a court of equity to cancel an instrument obtained by fraud was properly exercised. 2 Joyce on Insurance, §§ 1674-1680 ; 2 May on Ins. § 573; 2 Story’s Eq. Juris. §§ 693, 700; Pomeroy’s Eq. Juris. § 912; Bromley v. Holland, Coop. 9, 21; The Prince of Wales, etc., Assn. Co. v. Palmer, 25 Beav. 605; British Equitable Assur. Co. v. Great Western Ry. Co., 20 Law T. 422; S. C., 38 L. JT. (1869) N. S. 132, 314; Mutual Life Ins. Co. v. Pearson, 114 Fed. Rep. 395; Union Life Ins. Co. v. Riggs, 123 Fed. Rep. 312.</p> <p>See, also/cases cited by petitioner. Insurance Co. v. Bailey, 13 Wall. 616; Life Ins. Co. v. Bangs, 103 U. S. 780; Home Ins. Co. v. Stanchfield, 1 Dill. 424; 2 Abb. U. S. 1; 12 Fed. Cas. 449, case 6660.</p> <p>The power of the Federal court to take jurisdiction of the ease and the propriety of its doing so were not affected by the commencement of petitioner’s action at law in the state court, nor by the prayer for an injunction, which was not taken by the final decree. ‘There was neither actual nor attempted injunction of state court proceedings. The original restraining order was sought against a party, and was properly issued; but the final decree contains no injunction at-all, though the Federal court would have had power to order it. French v. Hay, 22 Wall. 250; Arrowsmiih v. Gleason, 129 U. S. 86, 98-101; Marshall v. Holmes, 141 U. S. 589, 599-600; Nat. Surety Co. v. State Bank, 120 Fed. Hep. 593. •</p> <p>Service of process was first had'in the equity suit and gave ■ the respondent the better right to proceed, if there were any question of priority involved. But there is no such question in the case, which shows two different suits, for different objects, proceeding, and capable of proceeding, concurrently in two different jurisdictions, the first judgment controlling if properly set up in the other proceeding. Buck v. Colbath, 3 Wall. 334, 345; Stanton v. Ernbrey, 93 U. S. 548, 553; Ins. Co. v. Bruñe’s Assignee, 96 U. S. 588, 592; Gordon v. Gilfoil, 99 TJ. S. 168,172, 178.</p> <p>Concurrent suits may proceed in different jurisdictions. Gates v. Bucki, 4 C. C. A. 116; 53 Fed. Rep. 961, 965; Short v. Hepburn, 21 C. C. A. 252; 75 Fed. Rep. 113; Appleton Water Works v. Central Trust Co., 35 C. C. A. 302, 305; 93 Fed. Rep. 286; Ogden City v. Weaver, 47 C. C. A. 485; 108 Fed. Rep. 564s 568; Nat. Foundry & Pipe Works v. Oconto City Water Supply Co., 51 C. C. A. 465 ;113 Fed. Rep. 793, 800; Martin v. Baldwin, 19. Fed. Rep. 340 ;/í&rsí v. Everett, 21 Fed. Rep. 218; Sharon v. Hill, 22 Fed. Rep. 28; Lehman v. Rosengarten, 23 Fed. Rep. 642; Hospes v. O’Brien, 24 Fed. Rep. 145; Ball v. Tompkins, 41 Fed. Rep. 486; Gilmour v. Ewing, 50 Fed. Rep. 656; First Nat. Bank v. Duel Co., 74 Fed. Rep. 373; Bank of Kentucky v.- Stone, 88 Fed. Rep. 383, 398. Farmers’ Loan & Trust Co. v. Lake Street El. R. R. Co., 177 TJ. S. 51, 60, 61, has no application to this case.</p> <p>This case was correctly decided upon the merits because:</p> <p>The testimony shows the concealment of material facts and this was in itself fraud vitiating the policy. 1 May on Ins. §§ 190,-209,212; 1 Joyce on Ins. § 643; 2 Joyce on Ins. §§ 1844-1849, 1855, 1869; 1 Story Eq. Jur. §§ 215, 216; M’Lanahan v.' Universal Ins. Co., 1 Pet. 170, 184, 185; Piedmont, etc., Life Ins. Co. v. Ewing, 92 TJ. S. 377; Sun Mvi. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 510; Equitable Life Assurance Co. V. McElroy, 28 C. C. A. 365; 83 Fed. Rep. 631; Manhattan Life Ins. Co. v. Carder, 27 C. C. A. 344; 82 Fed. Rep. 986; Barnes v. Fidelity Mut. Life Ins. Assn., 43 Atl. Rep. 341 (Penn.); Life Ins. Clearing Co. v. Bullock, 33 C. C. A. 365; 91 Fed. Rep. 487; ■ Ely v. Hallett, 2 Caines (N. Y.), 57.</p> <p>The defence being by way of confession and avoidance it was incumbent upon petitioner to show a full disclosure affirmatively. Underhill on Evidence, § 250; Elkin v. Jansen, 13 M. & W. 655; Carroll v. Malone, 28 Alabama, 521.</p> <p>Neither the disclosure pretended nor any disclosure could have affected the company because- of the circumstances surrounding the delivery of the policy, the conditions therein, and in the application, and the limitations upon the agent’s authority, of all which the petitioners were cognizant or are conclusively presumed to have been cognizant. Insurance Co. v. Lyman, 15 Wall. 664; Insurance Co. v. Wolff, 95 U. S. 326; Insurance Co. v. Mowry, 96 U. S. 544; Thompsons. Insurance Co., 104 U. S. 252, 259; Insurance Co. v'. Fletcher, 117 U. S. 519; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308; Paine v. Pacific Mut. Life Ins. Co., 2 C. C. A. 459; 51 Fed. Rep. 689; Union Nat. Bank v. German Ins. Co., 18 C. C. A. 203; 71 Fed. Rep. 473; Maier v. Fidelity Mut. Life Assn., 24 C. C. A. 239; 78 Fed. Rep. 566; United Firemen’s Ins. Co. v. Thomas, 27 C. C. A. 42; 82 Fed. Rep. 406 ;S.C., on rehearing, 34 C. C. A. 240; 92 Fed. Rep. 127; U. S. Life Ins. Co. v. Smith, 34 C. C. A. 506; 92 Fed. Rep. 503; Davis v. Mass. Mut. Life Ins. Co., 13 Blatch. 462; 7 Fed. Cas. 141, case 3642; Lee v. Guardian Life Ins. Co., 5 Ins. L. Jour. 26; 5 Bigelow Ins. Cas. 18; 15 Fed. Cas. 1-58, case 8190.</p> <p>Even if McCabe’s testimony were wholly untrue and Lord had made a full disclosure to McCabe, and McCabe for his own purpose cooperated with Lord in the perpetration of &■ fraud upon the respondent, the petitioner could derive no benefit thereform. New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 529; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308; Maier v. Fidelity Mut. Life Assn., 24 C. C. A. 239; 78 Fed. Rep. 566; U. S. Life Ins. Co. v. Smith, 34 C. C. A. 506; 92 Fed. Rep. '503; National Life Ins. Co. v. Minch, 53 N. Y. 144; Ryan v. World Mutual Life Ins. Co., 41 Connecticut, 168.</p> <p>As there was no substantial or material fact in controversy, nothing could properly have been submitted to a jury if an action at law had been instituted in the Federal court. It would have been proper to direct a verdict for respondent upon a trial at law. Pleasants v. Fant, 22 Wall. 116; Hendrik v. Lindsay et al., 93 U-. S. 143; Oscanyan v. Arms Co., 103 U. S. 261; People’s Savings Bank v. Bates, 120 U. S. 556.</p> <p>There having been no abuse or improper exercise of discretion in taking jurisdiction, and the case having been correctly decided upon the merits, this court, following its uniform practice, should not disturb the decree. Allis v. Ins. Co.; 97 U. S. 144; Lancaster v. Collins, 115 U. S. 222, 227; Rice v. Edwards, 131 U. S. clxxv, clxxvii; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556, 579, 580.</p>

Held: legitimately operates to' extend to the citizens and residents of the States the same protection .against arbitrary state legislation, affecting life) liberty and propérty, as is offered by the Fifth Amendment against similar legislation by Congress; but that the Federal courts ought not to, interfere when what *326 is complained of amounts to the enforcement of the laws of a State applicable to all persons in like…

The defendant in error commenced this action against the railroad company, plaintiff in error, in the Pulaski Circuit Court in the State of Arkansas, to recover damages for personal injuries sustained by him by reason of the alleged negligence of the company.

<p>If an employe can by the use of his eyes see that the machinery is defective ho is bound by that fact, even though he has not actually observed the defect; but a fireman who has only been six hours on an engine is not bound to have made a careful examination of the engine, in order to charge the company with negligence or'to exonerate himself from contributory negligence.</p> <p>There is no necessity for the court to call the attention of the jury to the rule that a railroad company is only bound to exercise reasonable care to supply a reasonably safe engine, when it appears from uncontradicted evidence that the engine supplied was not equipped with brakes under .circumstances which made the omission prima facie evidence of negligence.</p> <p>Where the company has negligently failed to equip an engine with brakes and it is derailed by striking an obstacle which was on the track without negligence of the company, and there is evidence that the engine could have been stopped more quickly with than without brakes, it is for the jury to say whether there would have been an accident had the brakes been on and fit to use ; and if the obstacle caused the necessity for brakes the neglect of the company to furnish them constitutes the immediate and proximate cause of the accident rather than the existence of the obstacle.</p>

The plaintiff in error has sued out this writ for the purpose of reviewing a judgment of the United States Circuit Court of Appeals for the Third Circuit, which affirmed a judgment of the District Court of New Jersey, awarding damages to plaintiff in error for the taking of certain, property of his on the Delaware River, near Fort Mott, in that State.

This.is a bill in equity to enjoin the city of Owensboro, Kentucky, from regulating the rates of the appellee, the Owens-boro Waterworks Company. Lawson Reno, police judge of the city, was made a party. The Circuit Court granted a temporary injunction.

<p>Consistently with Article IV, § 1, of the Constitution of the United States a State may deny jurisdiction to the courts of the State over suits by a corporation of another State against a corporation of another State on a foreign judgment.</p>

<p>When the Circuit Court has decided the question of its jurisdiction and the alleged unconstitutionality' of a state law in favor of the plaintiff, but has decided against him on the merits, the plaintiff cannot appeal directly to this court under the act of March 3, 1891, c. 517, § 5, for the purpose of a revision of the judgment on the merits.</p>

. ' APPEAL FROM THE CIRCUIT COURT OP THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. The facts are stated in the opinion of the court. Under the constitution of the State of Michigan the Legislature has at all times had the power to exempt from taxation. This was expressly held by the Supreme Court of the State of Michigan in Board of Supervisors of Chippewa v. Auditor General, 65 Michigan, 408.

Held: that as such checks were given for the purpose of evidencing interest-bearing debts, they were the evidence of credit for money loaned, localized in Louisiana, protected by its laws, and properly taxable there under the provisions of the tax law of 1898 of. Louisiana, which has already *389 been, sustained as constitutional by this court. New Orleans v. Stempel, 175 U. S. 309 .

<p>APPEAL PROM THE CIRCUIT COURT OF APPEALS FOR THE' SIXTH CIRCUIT.</p> <p>This was a bill filed by Arbuckle Brothers against Joseph E. Blackburn, as Dairy and Food Commissioner of the State of Ohio, to restrain him from certain action on his part as such officer, including prosecutions for violation of pure food laws of the State.</p> <p>After a jurisdictional clause setting forth diversity of citizenship, the bill averred that by an act of the general assembly of the State of Ohio, passed in the year 1884, entitled “An act to provide against the adulteration of food and drugs,” as amended by- an act passed .in the year 1890, entitled “An act to amend section 3 of an act entitled 'An act to provide against the adulteration of food and drugs/ passed March 20, 1884,” which act was still in full force and virtue, it was provided that no person should, within the State of Ohio, manufacture for sale, offer for sale, or sell any article of food which was adulterated within the meaning of said act, and that the term “food” used therein should include all articles used for food or drink by man, whether simple, mixed or compound. That it was further provided that food should be deemed adulterated “ (1) If any substance or substances have been mixed with it, so as to lower or depreciate, or injuriously affect its quality, strength or purity; (2) If any inferior or cheaper substance or substances have been substituted wholly or in part for it; (3) If any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; (4) If it is an imitation of, or is sold under the name of, another article; (5) If it consists wholly, or in part, .of a diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable substance or article, whether manufactured or not — or, in the case of milk, if it is the product of a diseased animal; (6) If it is' colored, coated, polished or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; (7) If it contains any added substance or ingredient which is poisonous or injurious to health; provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or. ingredients of articles of food, if each, and every package sold or offered for sale be distinctly labeled as mixtures or compounds, with the name and per cent of each ingredient therein, and are not injurious to health.”</p> <p>The bill alleged that for more than thirty years complainants and their predecessors had been engaged, and still were, in the manufacture' and sale throughout the United States, including the State of Ohio, a certain compound or mixture known as Ariosa, composed of roasted coffee compounded and mixed with eggs and sugar, whereby the separate beans were coated, and to*a large extent hermetically sealed after roasting with a compound of sugar and eggs, the original strength and aroma of the coffee being thus preserved and deterioration prevented; that the coffee, eggs and sugar were each “a common, healthy and unobjectionable article of food;” that Ariosa had acquired great reputation, and the good will of the business of its manufacture and sale had become very valuable; that it was sold in Ohio in packages, each of which, in compliance with the laws of Ohio in respect to the adulteration of food, was distinctly labeled with a printed statement- of the precise composition and the proportion of each of the ingredients of. the article.</p> <p>And it was charged that, notwithstanding these facts, defendant as dairy and food commissioner of Ohio had notified complainants that he considered Ariosa, as put up by them, ’ an adulteration; that he had issued a circular letter to dealers and vendors wrongfully asserting that complainants in the manufacture and sale thereof refused to abide by the laws of Ohio in that behalf; and that he proposed to institute prosecutions to prevent and punish its sale or offer for sale in Ohio.</p> <p>By the sixteenth , paragraph of the bill it was averred that “said statute, construed as respondent claims it should be, is in conflict with the Fourteenth Amendment to the Constitution-of the United States, and void, in that it would deprive complainants of their aforesaid property,” and would deny them “equal protection of the law.”</p> <p>And by the seventeenth paragraph it was averred that Ariosa was shipped to and sold in Ohio in original packages, “ and said statute, if construed as the respondent herein claims it should be, is a regulation by the said State of Ohio of interstate commerce, and is repugnant to, and in violation of, the third clause of section eight of article one of the Constitution of the United States, and void.”</p> <p>That if “respondent be permitted to commit the threatened wrongs, the same will, as complainants are informed and believe, damage complainants to the extent of more than $100,000, an amount largely in excess of respondent’s ability to respond in judgment.”</p> <p>The prayer was that the commissioner be restrained from charging that Ariosa was an article of food adulterated within the meaning of the statute, and that the use of the process of coating and glazing the coffee with the preparation of sugar and eggs and the importation and sale constituted violations of the statute; from threatening dealers with prosecution; and from instituting or commencing prosecutions.</p> <p>The case came on’to be heard on complainants’ application for a preliminary injunction and was submitted on pleadings and evidence, whereupon the Circuit Court entered a decree denying the injunction and dismissing the bill, which decree was affirmed by the Circuit Court of Appeals, 113 Fed. Rep. 616, and the case was then brought here by appeal. -</p> <p>The court had jurisdiction. '§ 720, Rev. Stat. does not apply as the threatened prosecutions had not been commenced when the bill was filed. Rhodes Co'.y. New Hampshire, 70 Fed. Rep. 721; Live-Stock Dealers’ & Butchers’ Assn. v. Crescent City Live Stock Landing & Slaughterhouse Co., 1 Abb. (U. S.) 388, 404, 407; Fed. Cas. No. 8408; Fisk v. Wailroad Co,, 10 Blatchf. 518; Fed. Cas. No. 4830; Louisiana v. Lagarde, 60 Fed. Rep. 186, 193; Yicli Wo v. Crowley, 26 Fed. Rep. 207.</p> <p>This suit is not against the State of Ohio within the intendment of the Eleventh Amendment to the Constitution of the United States. Scott v. Donald, 165 U. S. 58; Tindal v. Wesley, 167 U. S. 204; Western Union Tel. Co. v. Myall, 98 Fed. Rep. 335; Railway Co. v. Dey, 35 Fed. Rep. 866-871; Fitts v. McGhee, 172 U. S. 516; Union. Pac. R. Co. v. Alexander, 113 Fed. Rep. 347; Smyth v. Ames, 169 U. S. 466; Prout v. Starr, 188 U. S. 537; Cent. Trust Co. v. Citizens Street Ry. Co., 80 Fed. Rep. 218; 225; Louisiana v. Lagarde, 60 Fed. Rep. 186; L. & N. R. Co. v. Brown, 123 Fed. Rep„ 946, and cases cited.</p> <p>In defence of property rights, and when justified by equitable considerations, courts of equity may enjoin criminal prosecution. Snell, Principles of Equity, 12th ed. 648 (Lond. 1898); High on Injunction, ed. 1890, § 68; Lord Auckland v. Westminster Local Board of Works, L. R. Ch. App. Cas. VII, 597; Atlanta v. Light, Có., 71 Georgia, 106; Mobile v. L. & N. R. R. Co., 84 Alabama, 115; Birmingham v. Alabama, G. S. R. R. Co., 98 Alabama, 134; R. R. Co. v. Attala, 118 Alabama, 362 ;Dins-more v. Board of Police, 12 Abb. N. C. 436; Manhattan Iron Works v. French, 12 Abb. N: C. 446.</p> <p>This'jurisdiction has been frequently exercised by the Federal courts in restraint of state officials (as well as others) from both civil and criminal prosecutions in state (as well as other) courts. Central Trust Co. v. Citizens St. R. Co., 80 Féd. Rep. 218; Western Union Tel. Co. v. Myall, 98 Fed. Rep. 335; Minneapolis Brewing Co. v. McGillivray, 104 Fed. Rep. 258; U. P. R. R. Co. v. Alexander, 113 Fed. Rep. 347; L. & N. R. Co. v. Brown, 123 Fed. Rep. 946; Tindal v. Wesley, 167 U. S. 204; State of Louisiana v. Lagarde, 60 Fed. Rep. 186; Donald v. Scott, 67 Fed. Rep. 854; Scott v. Donald, 165 U. S. 58; Wong Wai v. Williamson, 103 Fed. Rep. 1; Jew Ho v. Williamson, 103 Fed. Rep. 10; Express Co. v. Mayor, 116 Fed. Rep. 756, and cases cited; Wallace v. R. R. Co., 118 Fed. Rep. 422; Smyth v. Ames, 169 U.' S. 466.</p> <p>The bill sets forth causes of action justifying the relief asked. Defendant’s circulars and threats of prosecution are in themselves cause of action. Farquahar v: Nat. Harrow Co., 102 Fed. Rep. 714, and numerous cases cited on p. 715; Adriance v. Nat. Harrow Co., 121 Fed. Rep. 827; Hutchinson v. Beckham, 118 Fed. Rep. 399.</p> <p>The construction of a statute is not a matter of discretion. Defendant-respondent is left equally unprotected, whether by a void statute (if his construction is correct), or by the fact (if his construction is wrong) that the law is not such as he assumes it to be.</p> <p>Defendant is utterly mistaken in the construction he claims for the Ohio statute, under color of which his threats are made —-Ariosa being within the saving clause, and not within the prohibition of such statute. White v. Ohio, 12 Ohio N. P. 659.</p> <p>To justify acts thereunder as within the police powers of the ■ State, the construction of the statute permitting or requiring such acts must be — (a) The proper and legal construction of such statute; and (b) Such as subserve some public end justifying the exercise of such police powers. As to the latter see Matter of Jacobs, 98 N. Y. 98; In re Marshall, 102 Fed. Rep. 323; Black on Interpretation, 304.</p> <p>(c) Properly construed, the Ohio statute'in question is no protection to respondent; and (d) Respondent’s erroneous construction is .as utterly futile as a defence here, as can possibly be the statute itself were its effect such as he claims. PreDigested Food Co. v. McNeal, Dairy Comm’r, 4 Ohio S. & C. P. Dec. 456.</p> <p>The statute in question, if construed as respondent claims— and in any case his such construction — is unconstitutional and of no protection to him. It interferes with interstate commerce. Schollenberger v. Pennsylvania, 171 U. S. 1.</p> <p>Where serious wrong cannot otherwise be righted, equity will neither hesitate to exercise its jurisdiction to the full extent of its scope, nor be nice to seek reasons why it should not do so. Exp. Co. v. Mayor &c., 116 Fed.’ Rep. 756; Niagara Ins. Co. v. Cornell, 110 Fed.- Rep. 816, and cases cited supra.</p> <p>Eggs, sugar and coffee, each being an ordinary and healthful ingredient of food, any citizen of Ohio has a right to sell, purchase or use either, in any shape he sees fit. It is no business of the State how much he values each, the proportion in which he shall mix them, or the manner in which he shall prepare, drink, or otherwise use' them. If he 'chooses to buy them, compounded or mixed, or, if the prosecution prefer, “aggregated,” as Ariosa, he has a right to do so. Dorsey v. Texas, 40 L. R. A. (Texas) 201.</p> <p>There are but two cases exactly in point. Williams v. McN.eal, 7 C. C. 280; PreDigested Food Co. v. McNeal, Commissioner-1 Ohio N. P. 266, both sustain the appellee." ■</p> <p>. This is really a suit against the State. CunfSingham v. R. B. Co., 109 U. S. 446; Davis v. Gray, 16 Wall. 203.'</p> <p>There is no distinction in this case between patented and unpatented articles. Palmer v. State, 39 .Ohio St. .236, and cases cited; Patterson v. Kentucky, 7 Otto, 501.</p> <p>The statute is constitutional. _ Copley’s Const. Lim. 3d ed. 168; Com. v. Huntley, 156 Massachusetts, 236; Powell v. Pennsylvania, 127 U. S. 678, reaffirmed in Schollenberger v. Pennsylvania, 171 U. S. 1; Plumley v. Massachusetts, 155.U- S. 461.</p> <p>The general food act of Ohio is copied verbatim from a New York statute which, in turn, is copied from a statute o'f Victoria. The law has stood the test of scores of courts in this country and in England. In Ohio this act has been approved by the 'Supreme Court in the following cases: State v. Cap. City Dairy Co., 62 Ohio St. 350; Palmer v. State, 39 Ohio St. 236'; Meyer v. State, 54 Ohio St. 242; State v. Kelly, 54 Ohio St. 166; State v. Dreber, 54 Ohio St. 115; Stale v. Buedy, 57 Ohio St. 224; Hutchinson v. State, 56 Ohio St. 82. See Gundling v. Chicago, 177 U. S. 183,</p> <p>The statute (Joes not interfere improperly with interstate commerce. Cases cited,, supra; Ferry Co. v. Pennsylvania, 114 U. S. 196; Kimmish v. Pennsylvania, 129 U. S. .217; Patterson v. Kentucky, 7 Otto, 501; Hinson v. Lott, 8 Wall. 148; Turner v. Maryland, 107 U. S. 38. :</p> <p>A court will not interfere in cases where the executive is merely exercising his judgment as to the guilt or innocence of a citizen by causing the arrest or refusing to cause the arrest of any citizen for alleged violation of a valid criminal statute. Perault v. Band, 10 Hun, 222; Judges v. People, 18 Wendell, 79, 99. , v</p> <p>There are cases which hold that the legislature itself cannot invest the judicial department of the government with authority to assume jurisdiction over legislative or executive departments. Sterling v. Doake, 29 Ohio St. 457; State v. Nichols, 26 Arkansas, 74; State v. Sloss, 25 Missouri, 291; Attorney General v. Brown, 1 Wisconsin, 513; Haley v. Clark, 26 Alabama, 439; Smith v. Myers, 109 Indiana, 1; Cunningham v. R. R. Co., 109. U. S."446; Davis v. Gray, 16 Wall. 103; Gaines v. Thompson, 7 Wall. 347; Comm, of Patents v. Whitiley, 4 Wall. 522.</p> <p>The interference of the courts with the performance of the ordinary duties of the executive department would be productive of nothing but mischief. United States v. Seaman, 17 How. 225; United States v. Guthry, 17 How. 284; United States v. Commissioner, 5 Wall. 563; Litchfield v. Register, 9 Wall. 576; Georgia v. Stanton, 6 Wall. 50; Mississippi v. Johnson, 4 Wall. 475; Cohen v. Commissioners, 77 N. Car. 2; Fickle v. Commissioners, 66 How. Pr. 318; Hinton v. Sheriff, 46 Georgia, 350; Chicago v. Wright, 69 Illinois, 318; R. R. Co. v. DeGraaf, 27 Minnesota, 1; Osborne v. Bank, 9 Wheat. 738; Spelling on Extraordinary Relief, §§ 625, 628.</p> <p>The action is forbidden by § 720, IT. S. Rev. Stat. The cases cited by appellant are inapplicable and can be distinguished from this case.</p>

This was a controversy between the sheriff of Person County, North Carolina, on the one part, and the Railway Company and Mrs. O. L. Satterfield on the other, which might have been the subject of a civil action, and which the parties agreed’to submit, under the code of North Carolina, to the judge of the Superior Court upon the following facts, and upon the question of the liability of the defendants for a license tax under section 52 of “An act to raise revenue,” ratified…

Held: that when the government brings process to enforce the statute the bank cannot evade it by proving that it took no mortgage on land, and where the State as to' that very mortgage, attempts to enforce its remedy for usury say that it is protected by a privilege *456 given by the very statuté which it violated, and under'which it claimed as against the government it did not act. ‘ A construction of the statute which…

<p>ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.</p> <p>This action was Brought under the death, statute of the District of Columbia for damages for the death of the husband and intestate of defendant in error. The death was the result of injuries alleged to have been caused by the negligence of the plaintiffs in error. The negligence is alleged to have consisted in the insufficient coupling of the cars of the plaintiffs in error, whereby one broke loose from the others and ran over the deceased, in not equipping the’ car with good brakes, and not having upon it a light sufficient to give warning of its approach. The answer was not guilty.</p> <p>The case was tried to a jury, which returned a verdict in favor of the defendant in error in the sum of $6500? This’ amount was agreed to as correct if the jury should find on the issues for the defendant in error. -</p> <p>Judgment was entered for that amount and costs. It was affirméd on appeal to the Court of Appeals of the District.</p> <p>The testimony is somewhat long, and we think it is only necessary to give an outline of what it tended to prove to illustrate and determine the questions presented.</p> <p>The plaintiffs in error operated a steam railroad in the city of Washington, District of Columbia,- and maintained four tracks on Virginia avenue southwest, crossing South Capitol street. The most northerly of the tracks, called “The Reservation” or “No. 1” track, was used for freight and shifting purposes. The two intermediate tracks were used for south bound and north bound passenger traffic. The most southerly track was' called the “ladder” or “lead track.” It was so called because all the tracks in the railroad yard were connected with it, and all the switches lead into it. It extended west across South Capitol street to an alley, and terminated at what was known as the property yard, where coal, ties, iron and other commodities were stored. Gates and a gateman were maintained at the crossing. There was evidence tending to show that the portion of this track lying west of the crossing was used for storing freight cars, but not passenger coaches, and that no portion lying west was used for shifting or making up the trains; but there was also evidence tending to show that it was so used as occasion required. Landrigan’s body was found at the southwest crossing, south of the “lead track,” “but nearer the track than the gate,” and there was flesh and blood alongside of the track on its south side. There was also testimony tending to show that the gates were generally kept down (one witness testified that in his experience they were always down) from ten or eleven o’clock at night until next morning, whether trains were passing or not, and persons with vehicles sometimes found it necessary to request the gateman to raise the gates, and sometimes to wake him up out of sleep for that purpose. Preceding and at the time of the accident a switching crew was making up a train of cars for the transportation of troops to the south, and it became necessary to “cut out” a Pullman car, called the “Lylete,” which was standing on one of the tracks. Immediately next to it was a tourist car. It was equipped with a Miller coupler; the Pullman with a. Janney coupler. Both couplers were of the automatic type, but of different patterns, and not designed to couple together, and in order to draw the cars out on the “ladder” track they were coupled together with the ordinary link and pin coupling.</p> <p>There was considerable testimony as to the manner in which the coupling was done, and of its efficiency, which testimony it is not necessary to detail. It went to the jury with the other testimony. It is enough to say that the couplers were of unequal, height, and the link could not be put in the slot of both couplers. It was put in the slot of the Janney coupler, and the other end laid on the top of the Miller coupler, “and ■ the only thing to keep the link from slipping over the head of the pin was a shoulder around the head of the pin.” It came . loose, and one of the employés, who had been in charge of the train, testified that “the couplings ‘slipped around/ he supposed, when they were going around the curve, and that had ; the tendency to make, them come apart/that he supposed it was due to the slack- caused by coming over the' switch and ‘the ladder' track.” The “ladder” track had a slight incline to the crossing, and when the car broke loose it started towards the crossing. An employé had tried the brake on the straight track, but when some one “hollared” that the car had broken off he “went to work on the brake again.” “It did not seem to catch hold,” he testified; and he then “dropped off the end of the car and caught the rear end of it — the head end — and at the same time Hottal (yardmaster) got on the end that he got off of; the witness called for Wilber to help him to put the brake on, and they did all they could to stop the car, but the car had got too much start; the brake seemed to work all right — he did not have any fault to find with the brake, only the car had gotten too much start; he first tried the rear brake and could not get that to work; then went to the other one; while witness and Wilber were working on the forward brake Hottal jumped ' on and tried to work the rear brake; they did not succeed in stopping the car, because it had gotten too much of a start. He got off at South Capitol street on the southeast side/ stood there for.a second or two, and then ran after the car to see what damage it had done. There were some other cars down on the end of this track, that this car ran into, and it would not have been safe for the .witness to .have stayed on the car.”</p> <p>The witness testified that he “did not know Landrigan personally; had seen him-a number of times; he saw him after 1/ w¿s hurt; Landrigan's legs were run over, but he could not say whether it was by the car or another t (fin; train No. 78, which left the depot about 11:55 or 11:35, was passing there about the time of the accident; this train No. 78 is known as the midnight express for New York, and crossed South Capitol street, where Landrigan was hurt, going in an easterly direction; when witness saw Landrigan the latter was lying on the south side of the outside rail of the ‘ladder track,’ the most southerly track of the four tracks of the crossing; immediately before he saw Landrigan lying there the coach ‘Lylete’ passed over the crossing at South Capitol street and witness came right along behind this car, after train 78 passed, to see if the coach had done any damage down there and saw Landrigan lying there with some one around him; he went down where the car had stopped and came back and found out what the trouble was.” As to the position of the gates, he said: “He first noticed the gates when he came down there after he had jumped off the end of the car; the gates were down then on both sides of the street. He did not notice the gates before 78 passed, because he had not been down that far; he stood on the southeast side of South Capitol street until 78 passed, and then started to run down the main track, and as he ran down the track he noticed that the gate's were down on both sides.” And further, “the runaway car passed the southwest crossing of South Capitol street before No. 78 reached there; it struck just the middle part of No. 78 as the train came by there; the runaway car had just about gotten across the crossing when the engine of No. 78 began to cross the crossing; it was almost at the same time.”</p> <p>There was a white light in the dome of the vestibule of the runaway car or on the platform, and the effect of the light was testified to as follows by one witness:</p> <p>“The lamp in the dome of the vestibule of the Pullman car had a white shade or globe underneath; it gave a bright light— you could see it all right; the lamp' was inside of the door and the door was closed; the glass in the door extended about, half way down, and the light shown through the glass in the door.”</p> <p>By another' witness:</p> <p>“That the light in the car was in the dome — in the vestibule —just on the outside of the door, over the platform; he knows .there was a light in the west end of the car, the end going toward South Capitol , street — which was the front end of the car the way it was moving; this light could be seen more plainly than a lamp; such lights contain two burners, are lighted by oil, and are more brilliant than a lantern-; the reflector is over the top of the light; there is a kind of white shade over them; that the light in the vestibule of the car could be seen by people on the ground; it hung down low, and did not set right up in the dome; it had a shade over it, but he does not know whether you could call it a reflector or not; it was plain enough to be seen by anybody who was on the ground.”</p> <p>By another witness:</p> <p>“That the light in the vestibule of a Pullman car is so located as to illuminate the platform only; that is the purpose of that light; that it does not throw the light more than a couple of feet beyond the end of the bumper of the car; it is not intended to illuminate the track.</p> <p>“And thereupon, on cross-examination, said witness further testified that such a light was not intended for a locomotive headlight; that if a man was standing on the track some distance from the advancing end of a car showing such a light he would not see the source of the light, but would see the reflected light on the platform on the car; he could see the illuminated end of the car; that if he was not looking exactly in that direction this light would not attract his attention away from something else; that if he were looking up the track he could see the light if he were not too far away.”</p> <p>And the evidence showed “that a Pullman car running along an ordinarily straight track at a rate of speed a little faster than a man ordinarily runs, err can run, does not make any noise.”</p> <p>(Landrigan was employed as a machinist and assistant bo>s on the night force at the. round house, ^which was situated between H and I streets, on South Capitol street. He had been employed for eight years. His home was north of the railroad tracks On Virginia avenue, and the most usual and direct route to his home from the round house was up South Capitol street to the southwest crossing, “then right over to the north side of Virginia avenue; and it was the way Landrigan usually took.” On the night of the accident he left the round house about 11:50 o’clock, and about twelve o’clock was found in the place and condition described in the testimony. The night “was not a clear night, nor was it a real dark night — there was no móon and there were a few clouds.” The crossing was lighted up by street lamps located on each side of the four corners, and there was an electric light in the reservation north of the tracks, "and another one south and east of the tracks near the signal tower.</p> <p>There was testimony to the effect that to a person outside of the gate the flagman’s box would “obstruct the view of the i ladder track to the east, but one standing on the inside of the gate on the open space, you could look straight up the track to the eastward, and there was nothing to break your view.” ' And also that two freight cars obstructed the view to the west.</p> <p>There was no eyewitness to the accident, and Landrigan, in response to the inquiry, “ How did this thing happen? ” replied, “I came under the.gates and something struck me, and a whole train of cars fan over me.” ' He died about four o’clock without making further explanation.</p> <p>At the close of the testimony the plaintiffs in error moved the court to instruct the jury to find a verdict for them. The court refused, and this is assigned as error. The case was then submitted on the evidence of the defendant in error.</p> <p>Errors are also assigned upon the giving and refusing of certain instructions. ■</p> <p>The railroad company cannot, as to the backing up of the Pullman car, be held liable for doing unintentionally what it had a right to do. Stewart v. Washington & Great Falls ■Ry. Co., decided Nov. 4, 1903, by Court of Appeals, Dist. Col.</p> <p>There is a distinction between remote and proximate causes of an accident. The proximate cause was the passing over the tracks by the plaintiff below while the gates were down. Insurance Co. v. Boon, 95 U. S. 130; Scheffer v. Railroad Co.,</p> <p>. 105 U. S. 249; W. & G. R. R. v. Hickey, 166 U. S. 528; Cullen v. Railroad Co., 8 -D. C. App. 69; Granger v. Boston & Albany, 146 Massachusetts, 276; Allerton v. R. R. Co., 146 Massachusetts, 241; Schmidt v. Phila. & Reading R. R: Co., 149 Pa. St. 337; Debbins v. R. R. .Co., 154 Massachusetts, 402; Marderi v. Boston & Albany, 159 Massachusetts, 393; Peck v. R. R. Co., 50 Connecticut, 379; B. & O. v. Colvin, 118 Pa. St. 230; Cleary v. R. R. Co., 140 Pa. St. 19; Sheehan v. R. R. Co., 166 Pa. St. 354; Duvall v. Michigan Central R. R. Co., 105 Michigan, 386; Douglass v. R. R. Co., 100 Wisconsin,.405; 76.N. W. Rep. 356; Railway Co. v. Schneider, 45 Ohio St. 678; Railway Co. v. Ehlert, 63 Ohio St. 320.</p> <p>Either plaintiff did not look or,, having looked, he disregarded what he saw. In explaining the occurrence he made no mention of having looked up and down the tracks before venturing upon them, and if his statement is to be accepted at all, it should be accepted as conclusive, and the case should also have been taken from the jury on this ground, for by his reference to a “whole string of cars” he must have meant the express train No. 78; it was conceded that if he was injured by that train he could not recover.</p> <p>If he did not look and listen before attempting to cross the tracks, or if he looked and failed to heed the warnings of his senses, he was .guilty of such contributory negligence as will prevent plaintiff from recovery here. Northern Pacific R. R. Co. v. Freeman, 174 U. S. 384; Hook v. Mo. Pac-, Ry. Co., 63 S. W. Rep. 360; 21 A. & E, R. R. Cas. (N. S.) 787,-</p> <p>The true rule in cases of this character is that there is no presumption of law either way or in favor of either party. Beach on Contributory Negligence, § 182; Missouri Pacific v. Foreman, 73 Texas, 311; Phila., W. & B. R. R. Co. v. Stib- ■ bing, 62 Maryland, 504; Texas & Pacific v. Gentry, 163 U. S. 353.</p> <p>One is not entitled to say that he was injured by the negligence of another if he, by the use of ordinary care, might have escaped the damage. Davey v. London & S. W. Ry. Co., 12 Q. B. D. 70 (1883); Wakelin v. London & $. W. Ry. Co., 12 App. Cas. 41 (H. L. 1886); The Bernina, Í2 Probate Div. 58 (1887); Bewail v. N. Y., N. H. & H. R. Co.,' 171 Massachusetts, 302; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408; Patton v. Texas Pacific Ry. Co., 179 U. S. 658.</p> <p>The trial judge could not have directed a verdict for defend-antsbelow. As to respective functions of judge and jury, ses ■ Douglass v. Railroad Co., 100 Wisconsin," 407; Grand Trunk Railroad Co. v. Ives, 144 TJ. S. 408; Texas & Pacific v. Gentry, 163 U. S. -353, 369; Cowen v. Merriam, 17 App. D. C. 186.</p> <p>Defendants charge that this contributory negligence which they impute to deceased consisted of two distinct acts on his part: (1) going under the closed gates; (2) failing to look and listen.</p> <p>•Appellants cite many authorities and quote in extenso from the opinions of the courts in support of the general proposition that to go under closed gates and on a railroad track constitutes negligence per se. .</p> <p>The principle as stated, and when applied to the ordinary case, where tL j gates are used as signals of danger or safety —danger when closed, and safety when opened — is obviously wholesome 'and sound.</p> <p>The gates- were kept down all night except when vehicles passed; this was a custom and plaintiff knew of 'the custom and was entitled to rely upon it as he did. This took plaintiff out of the general rule of what would otherwise have been negligence per se; no testimony was offered by defendants below on this point.</p> <p>Their failure to do so, where the witnesses who operated the gates, and. who knew and could have testified better than any one else as to the exact facts, were their own employes, whom they could readily have produced if those facts would have been to their advantage, of itself creates a case for the deduction of inferences that the facts were adverse to them, upon which the plaintiff was entitled to have the jury pass. Am. Bell Tel. Co. v. Nat. Tel. Mfg. Co., 109 Fed. Rep. 976,1018; In re Kellogg, 7 Am. Bank. Reg. 635; Graves v. United States, 150 U. S. 118, 120, 121; Bunkle v. Burnham, 153 U. S. 216, 225.</p> <p>As to thé alleged negligence of passing under the gates when a danger signal thus becomes no real signal of danger, no negligence, is to be imputed to the traveler who knows the fact and acts upon it. Cessanté ratione legis cessat et ipsa lex. A fortiori, when a signal ceases to be used for the object for which it was intended, it ceases to indicate that object. Da-shiell v. Market Company, 10 App. D.' C. 81, 89; Douglass v. R. R. Co., 100 Wisconsin, 405, and Sheehan v. R. R. Co:, 166 Pa. St. 354, distinguished.</p> <p>While it is the duty of one before attempting to cross a railroad track to look and listen for the approach of trains, it is equally well settled that in the absence of any evidence to the contrary, it is to be presumed in favor of the deceased that he did so look and listen. Continental Improvement Co. v.' Stead, 95 IT. S. 161, 194; Texas & Pacific v. Gentry, 163 U. S. 353, 366.</p> <p>It was not error for the court to refuse to charge in the exact language- selected by counsel for defendants. Continental Imp. . Co. v. Stead, 95 U. S, 161, 194. '</p>

Bi-R.-R.n-R. TO THE SUPREME COURT ON THE STATE-OP PENNSYLVANIA. The defendants in error brought suit in the Court of Common Pleas of Philadelphia against the Pennsylvania Railroad Company, to recover for injuries to a horse shipped by them from Albany in the State'of New York to Cynwyd, in the State of Pennsylvania. The shipment was under a bill of lading of the New York Central and Hudson River Railroad Company, bearing date of August 10, 1900.

The facts are stated in the opinion of the' court, The only question on this hearing is that of jurisdiction on • the equity side of the court. Appellant has the right to be heard. Mashall v. Tex. & Pac. Ry. Co., 136 U. S. 393. This is a Louisiana contract affecting Louisiana property and is governed by Louisiana law under arts. 296, 298, Code; Slaughter House Co. v. Larr'ieux, 30 La. Ann. 799; Levy v. Waterworks Co., 38 La. Ann. 29.

<p>ERROR TO THE COTJRT OP APPEALS OF THE STATE OP KENTUCKY.</p> <p>This action was brought by the board of cóuncilmen of the city of Frankfort in the Franklin Circuit Court for the recovery of certain ad valorem taxes under levies for the years 1892,1893 and 1894. The tax for the year 1892 has been eliminated from the controversy, and the matters now disputed include thé taxes for the years. 1893 and 1894 and interest. The bank in the first instance relied upon the provisions of a certain law of the State of Kentucky, known as the Hewitt law, as exempting it from the taxes sought to be enforced'. This law was passed in 1886, Session La^s of Kentucky, 1885-6, pp. 140, 144-147, 201, and provided:</p> <p>“Section 1. That shares of stock in state or national banks, and other institutions, of loan or discount, and in all corporations required by law to be taxed on their capital stock, shall be taxed 75 cents on each share thereof, equal to $100, or on each $100 of stock therein owned by individuals, corporations or societies, and said banks, institutions and corporations shall, in addition, pay upon each $100 of so much of their surplus, undivided surplus, undivided profits, or undivided accumulations,. as exceeds an amount equal to ten per cent of their capital stock, the same rate of taxation that' is assessed upon real estate, which shall be in full of all tax, State, county and municipal.</p> <p>“Sec. 4. That each of said banks, institutions and corporations, by its proper corporate authority, with the consent of a majorityin interest of a quorum of its stockholders, at a regular or called meeting' thereof, may give its consent to the levying of said tax, and agree to pay the same as herein provided, and to waive and release all right under the acts of Congress, or under the charters of the state banks to a different mode of smaller rate of taxation, which consent or agreement to and with the State of Kentucky shall be evidenced by writing under the seal of such bank and delivered to the governor of this' Commonwealth; and upon such agreement and consent being-delivered, and in consideration thereof, such bank and its shares of stock shall be exempt from all. other taxation whatsoever so long as said tax shall be paid during the corporate existence of such bank. - • ■</p> <p>“Sec. 5. The said bank may take the proceeding authorized by section 4 of this act at any time until the meeting of the next general assembly-: provided, they pay the tax provided in section 1 from the passage of this act.</p> <p>“Sec. 6. This act shall be subject'to the provisions of section 8, ’chapter 68, of the General Statutes.</p> <p>“Sec. 7. If any bank, State or national, shall refuse or fail to pay the tax imposed by this act, or shall fail or refuse to make the consent and agreement as prescribed in section 4, the shares of stock of such bank, institution or corporation and its surplus, undivided accumulations and undivided profits, shall be ás-sessed as directed by section 2 of this act, and the same taxes, State, county and municipal, shall be imposed, levied and collected upon the assessed shares, surplus, undivided profits, undivided accumulations, as is imposed on the assessed taxable property in the hands of individuals: Provided, that nothing herein contained shall be construed as exempting from taxation for county or municipal purposes any-real estate or building owned and used by said banks or corporations for conducting their business, but the same may be taxed for county and municipal purposes as other real estate is taxed.”</p> <p>The Deposit Bank of Frankfort accepted the terms of the Hewitt law and made payment "of the taxes as therein provided.</p> <p>The Circuit Court of Franklin County, by judgment upon the pleadings in this case, sustained the bank’s claim of exemption, holding the Hewitt law to be an irrevocable contract between the bank and the State. ' Upon appeal, this judgment was reversed by the Kentucky Court of Appeals, that court holding that the Hewitt act did not constitute an irrevocable contract, and had'been repealed by the later act of 1892, under which act the bank was not exempt from payment of the taxes in controversy.</p> <p>After the case was remanded to the Circuit Court for a new ’ trial the bank filed a supplementary answer, setting up as an estoppel a decree of the United States Circuit Court for the District of Kentucky rendered in 1898, in a case to which the bank and the complainant were parties. The decree in that case was rendered upon a bill filed by the bank, in which it set up, among other things, a certain judgment of the Franklin Circuit Court rendered in 1896, in which it was adjudged that the Hewitt law constituted an irrevocable contract éxempting the bank from taxation. At the time of the rendition of the decree in the United States court the judgment of the state Circuit Court relied on was in full force although subsequently reversed by the Kentucky Court of Appeals.</p> <p>. In the Federal court the following decree was rendered:</p> <p>“The. court being sufficiently advised, files its opinion herein.</p> <p>“It is therefore adjudged, ordered and decreed'as follows:</p> <p>“First. That the demurrer of the defendants Board of Councilmen of the City of Frankfort and Franklin County and of the defendants Samuel H. Stone, G. W. Long and Charles Finley be, and the said demurrers are, hereby overruled; to which the said defendants each except.</p> <p>“Second. The plea of defendants Board of Councilmen of the City of Frankfort and Franklin County to the bill of complaint is overruled; to which the said defendants except.</p> <p>' “Third. Thereupon came the complainant, by Frank Chinn, its counsel, and files its replication to the answer of the defendants, Board of Councilmen of the City of Frankfort and Franklin County. The defendants, County of Franklin and City of Frankfort, offered tó file an amended answer; to which complainant objected, and the motion to file is overruled; to which said defendants except, and said amended answer is made a part of the record by the order of the court.</p> <p>“And by consent this cause came on to be heard for final decree. The complainant read upon hearing its bill of complaint ánd its amended bill of cómplaint herein, together with all the exhibits filed with said bills, to wit:</p> <p>“Exhibit ‘A,’ being the record of the proceedings in the' case of Deposit Bank of Frankfort against Franklin County and John .W. Gaines, sheriff.</p> <p>“ Exhibit ‘ B/ being’dhe records in the proceedings in the case . of Deposit Bank of Frankfort against Franklin County and R. D. Armstrong, sheriff. . • ,</p> <p>“Exhibit ‘C,’ being judgment of Franklin- Circuit Court, entered February 1,1896, in the suit of Deposit Bank of Frank- • fort against Franklin County. •</p> <p>“Exhibit ‘D,’ being record of the proceedings in.the case o’f ' Board of Councilmen of City of Frankfort against Deposit Bank of Franklin.</p> <p>“The defendant, The County of Franklin, read on the hearing its answer, and the defendant Board of Councilmen of the City of Frankfort read on the hearing the record of the proceedings in the case of Board of Councilmen of City of Frankfort against L. C. Norman, auditor, etc., and also read its answer.</p> <p>“And it is now adjudged, ordered and decreed that the defendants, Samuel H. Stone, Charles Finley and George W. Long be, and they are hereby, perpetually enjoined and restrained from proceeding to value the franchise of the complainant under the act of November 11, 1892, for the years 1895, 1896; 1897, 1898, or for any other subsequent years until the. expiration of the charter of the complainant, and are enjoined and restrained from certifying such value to the county clerk of Franklin County or to any officer of the board of councilmen of the city of Frankfort or the county of Franklin and the defendants, County of Franklin and Board of Councilmen of the City of Frankfort, áre enjoined and restrained from endeavoring to collect any tax upon any such valuations; and the complainant, by making payments in accordance with the Hewitt law, is discharged in full from all taxes to be exacted from it under any form or by any authority. '</p> <p>“It is further adjudged, ordered and decreed that by reason of the several pleas of res judicata, relied on by the complainant in its bill, and as shown by the exhibits therewith, the complainant has estáblished a contract with the Commonwealth of •.Kentucky, under the'provisions of article 2 of the act of the general assembly of the State of Kentucky, entitled ‘An act to amend the revenue laws of the Commonwealth of Kentucky,' approved May 17, 1886, and the acceptance of the same by the complainant, the terms of which contract the commonwealth cannot' alter or change without the consent of the complainant; that by the terms of this contract the complainant and its shares of stock cannot, during its corporate existence, be assessed for taxation for State purposes in a different mode or at a greater rate of taxation than as prescribed in said act, and can be assessed for taxation and taxed for county and municipal purposes only upon its real estate used by it in conducting its business; that the provisions of the present constitution of the Commonwealth of Kentucky and the act of November 11, 1892, in so far as they are intended to provide or do provide for any assessment or taxation- of the complainant’s property, rights of property, or franchise, or shares of stock, except to the extent and in the manner provided by sections 1, 2 and 3 of article 2 of the said act approved May 17, 1886, and except to assess and tax for county and municipal purposes upon its real estate used in conducting its business, are in violation of and repugnant to the Federal Constitution and void.</p> <p>“And it is further adjudged that the complainant recover of the defendant its costs in this action expended.</p> <p>“And came defendants and prayed an appeal in open court, and tendered their assignment of errors; whereupon the court allowed the appeal, and orders the assignment of errors to be filed and fixes the appeal bond at one thousand dollars.”</p> <p>This decree of 1898 was afterwards' affirmed in this court. Stone v. Deposit Bank, 174 U. S. 800. The Franklin Circuit Court in the case now before us dismissed the petition upon the ground that there had been no proper return of no property found, and did not pass upon the question as to whether the decree of the United States court was effectual as an estoppel between the parties. Upon appeal to the Court of Appeals of, Kentucky, it was held by a majority of the court, three judges dissenting, that the decree relied upon was not an estoppel.-By writ of error that judgment is brought here for reviéw.</p> <p>The decree of the United States court relied bn as a bar to this action having been rendered by a court having jurisdiction of the cause and of the parties, is conclusive upon the city in every other court so long as that decree stands unreversed. Hollister v. Abbott, 64 Am. Dec. 342, and cases cited; Dupuy v. Johnson, 4 Bibb, 562; Garner’s Admr. v. Strode, 5 Litt. 314; Paul v. Smith, 82 Kentucky, 431; Davis v. McCorkle, 14 Bush, 751.</p> <p>And the fact that this action was begun before that in which the United States court suit was filed does not alter the rule. Am. & Eng. Ency. of Law, vol. 12, p. 149c, and cases there cited.</p> <p>' The Court of Appeals was without júrisdiction to decide 'whether or not the United States court based its judgment upon one or all of the pleas of res judicata set up.and relied on by the bank in that case, the rule being well settled that as between national and state courts, neither will undertake to grant relief 'from a judgment rendered by the other.. One having equitable grounds for relief from a judgment rendered in courts of' either must apply to the court of the sovereignty ■ in which the judgment was rendered. Freeman on Judgments, sec. 485, p. 852, citing Biggs v. Johnson, 6 Wall. 166; United States v. Keokuk, 6 "Wall. 514; Engles v. Miller, 2 Rich. Eq. 320; Strozen v. Hawes, 30 Georgia, 578; 1 U. S. Stats, at Large, 335.</p> <p>The Federal question is, that the rights and immunities which the Deposit Bank acquired under the decree of June, • 1898, affirmed by this court, have been denied and disregarded by the state court by the judgment in error, in violation of section 709, Revised Statutes of the United States. Foster’s ■ Fed. P. & P. voi. 2, p. 1180, note 1, citing Tex. & Pac. R. Co. • V. Johnson, 151 U. S. 81-99; U. S. Rev. Stat. sec. 709; Pittsburgh &c. By. Co. v. Trust Company, 172 U. S. 493; Dowell v. Appellate,. 152 U.. S. 327.</p> <p>The sole ground relied on for reversal is'that the United States Circuit Court for the District of Kentucky in- Deposit Bank v. Stone, of 1898, held that the Hewitt law constituted an irrevocable contract between the Deposit Bank of Frankfort and the State of Kentucky. If that proposition were true, the bank's plea of estoppel would not be available herein, because of the first judgment by the state court rendered in 1900, from which no writ or error was ever prosecuted or prayed. An estoppel against an estoppel sets the matter at large. Bigelow on Estoppel, 5th ed. p. 360, and authorities cited. The proposition, however, is unsound. The Federal court, in Bank v. Stone, did not hold that such law constituted an irrevocable contract between the bank and the State.</p> <p>The question of Hewitt law contract decided by the state court in June, 1900, is an entirely different question from the question of estoppel decided by the Federal court in 1898.</p> <p>The former is a Federal question. The latter is not a Federal question. Phcenix Insurance Co. v. Tennessee, 161 U. S. 184. .</p> <p>All that this court has ever required of the courts of last resort of the States, in giving effect to Federal court judgments, is: That Federal court judgments be given the same effect that is given state court judgments, of the same character and rendered under similar circumstances, by the courts of the State .in which they are rendered. Section 905, Revised Statutes U. S., as construed by this court in numerous cases, so requires. Mills v. Duryee, 7 Cranch, 484; Hampton v. McConnell, 3 Wheat. 234; Metcalf v. Watertown, 153 U. S. 676, and cases cited; McElmoyle v. Cohen, 13 Pet. 326; Christmas v. Russell, 5 Wall. 290; Thompson -v. Whitman, 18 Wall. 457; Abraham v. Casey, 179 U. S. 218., As to the effect as an estoppel given to such judgments, as that relied on by appellee herein, “by the courts, laws and usage” of Kentucky, see City of Newport v. Commonwealth, 21 Ky. L. Rep. 47, and cases cited; Nagley v. City of Henderson, 59 S. W. Rep.. 19; Bell County C. & I. Co. v. City of Pineville, 23 Ky. L. Rep. 933; City of Frankfort v. Deposit Bank, 23 Ky. L. Rep. 1285 (1901), involved the same question. Exemption was claimed by the bank on the ground of a former adjudication of contract in a litigation as to taxes for the years 1895,1896, 1897,1898. The plea of estoppel was held unavailable. See also Louisville■ Bridge Co. v. Louisville, 65 S. W. Rep. 814; Douglass v. Comm., 15 Ky. L. Rep. 581, affirmed Douglass v. Kentucky, 168 U. Sr 488.</p> <p>The judgment from which this writ of error is prosecuted not only gives to the judgment relied on as an estoppel herein the same effect which that court has uniformly given to the same character of judgments rendered by the courts of Kentucky, but also the same effect which this court has uniformly given to such judgments.</p> <p>There are two classes of estoppel by res judicata — namely, 1st, “estoppel by former judgment,” and 2d, the claim of estoppel now relied on, ' ‘ estoppel by former verdict.” Keokuk & Western R. R. v. Missouri, 152 U. S. 31.</p> <p>This character of estoppel is subject to very many restrictions. • • .</p> <p>Unlike estoppels by former judgment (which apply to all ■ matters both of law and fact, which were litigated and determined in the former suit, and'also.to all matters which might •have been litigated and determined in the former suit) the estoppel by former verdict is restricted to issues of fact which were actually litigated and■ determined, in the former suit and which arise in the second suit under substantially the same circumstances as in the first action. Cromwell v. Sac, 94 U. S. 315; New Orleans v. Citizens-Bank, 167 U. S. 371.</p> <p>And see also Galpin v.. Page, 18 Wall. 374; Freeman on Judgments, 4th ed. vol. 1, § 329, and authorities cited; C. & V. R-. R. Co. v. Fosdick, 106 U. S. 47, in which the reversal of the decree on which the other decrees were based, were held ipso facto to vitiate the latter. See also Butler v. Eaton, 141 U. S. 243.</p> <p>There is no reason for the chancellor’s giving any other or . further effect to a decree or order of injunction after the foundation thereof has been destroyed, and the purpose thereof has been fully accomplished, whatever the general language of injunction. Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. 421;,Newport v. Newport Light Co., 14Ky. L. Rep. 485.</p>

This was an action of trover commenced by plaintiff in error in the Court of Common Pleas for the County of Lehigh, Pennsylvania, October 18,1900, the declaration averring in substance that, on January 13,1900, certain lumber and building materials were The property of the firm of Bennett & Rothrock, and that by virtue of an adjudication in bankruptcy of that date, plaintiff succeeded to the title of that firm" to said lumber, and materials, and that on January 15, 1900,…

Held: which were-not reserved as mineral. In other words, minerallands were not conveyed, whether known. or unknown to be such at the) time; ©f the grant. This was the-main question decided. It was also held that- the issue of patent would constitute a. determination, of the character of the land'by reason of the- power of the Land Department to determine andiestablish it..

<p>ERROR TO THE SUPREME COURT OP THE STATE OP UTAH.</p> <p>The facts are stated in the opimon.</p>

<p>Retrospective legislation is not favored. Unless the intention that a law is to have a retrospective operation is clearly evidenced in the law and its purposes the court will presume that it was enacted for the future and not for the past.</p> <p>The provisions of the Navy Personnel Act of March 3, 1899, 30 Stat. 1004, as to crediting officers appointed from civil life with five years’ service on the date of appointment for the purpose of computing their pay apply to the pay of officers theretofore appointed from the commencement of the then next fiscal year, when the act by its terms went into operation, and such provisions do not apply to readjusting compensation for any period prior thereto, thereby giving increased pay to officers who had reached maximum pay before the passage of the act..</p>

<p>APPEAL PROM THE UNITED STATES CIRCUIT COURT POR THE DISTRICT OP MINNESOTA.</p> <p>Motion for leave to file brief as amicus curias denied.</p>