Volume 193 — United States Reports

• This was a suit brought by the.United States against the Northern Pacific Railroad Company and the Northern Pacific Railway Company , to cancel patents issued in May, 1895, by .the United States to the railroad company, to whose rights the railway company had ■ succeeded. The lands are situated in the State of-Washington, north of Portland, in the State of Oregon.

By Chap. 704 óf the Laws of Maryland, 1892, as amended by chap. 320, Laws, 1900, the general assembly of that State provided for the assessment and collection of taxes on liquors in bonded warehouses within the State. The .proprietors of such warehouses were required to pay the taxes and given a lien on the property therefor. This legislation Avas sustained by the Court of Appeals of the State, 95 Md. 488, to review Avhose judgment this Avrit of error was sued out. .

<p>Where the determination by the state court of an alleged ground of estoppel embodied in the ground of demurrer to an answer necessarily involves a consideration of the claim set up in the answer of a contract protected by the Constitution of the United States, a Federal question arises on the record which gives this court jurisdiction.</p> <p>Provisions in the railway law of Michigan of 1873, for the .creation of a new corporation upon the reorganization of a railroad by the purchaser at a foreclosure sale, did not constitute a contract within the impairment clause of the Constitution of the United States. New York v. Cook, 148-U. S. 397.</p> <p>Purchasers of a railroad, not having any right to demand to be incorporated under the laws of a State, but voluntarily accepting the privileges and benefits of an incorporation law, are bound by the provisions of existing laws regulating rates of fare and are, as well as the corporation formed, est.opped from repudiating the burdens attached by the statute to the privilege of becoming an incorporation.</p>

<p>The Fourteenth Amendment safeguards fundamental rights and not the mere form which a Stater may see proper to designate for their enforcement and protection; and where such rights are equally protected' and preserved they cannot be said to be denied because of the forum in which the State deems it best to provide for a'trial.</p> <p>The mere direction of a state law that the venue of a cause under given circumstances shall be transferred does not violate the equal protection of the laws where the laws are equally administered in both forums.</p> <p>Section 5030, Revised Statutes of Ohio, providing for a change of venue under certain conditions, where a corporation having more than fifty stockholders is a party, is not repugnant.to the provisions of the Fourteenth Amendment. .</p>

<p>ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>This action was brought under section 7 of the act of July 2, 1§90, 26 Stat. 209 ; 3 Comp. Stat. 3202, commonly called the Anti-Trust Act. The section reads as follows-;</p> <p>“ Sec. 7. Any person who shall be injured in his business or property by any other person .or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall ¿recover threefold the damages by him sustained, and the. costs of suit, in-.' eluding a reasonable attorney’s fee.”</p> <p>Plaintiffs in error (defendants below) seek to review the judgment of the Circuit Court of Appeals for the Ninth Cirr cuG, 115 Fed. Rep. 27, affirming a judgment for plaintiffs, entered in the Circuit Court for the Northern District of California, upon a verdict of a .jury. 106 Fed. Rep. 38.</p> <p>It appeared in evidence'on the trial in the United States Circuit Court that the plaintiffs for many years prior to the commencement of this action had been copartners, doing business as such in the city of San Francisco in the State of California, and dealing in tiles, mantels and grates, and that The Tile, Mantel and Grate Association of California, and the officers and members thereof, had since, on or about the — day of January, 1898, constituted under that' name an unincorporated organization composed of wholesale dealers in tiles, mantels and grates, who were citizens and residents of the city and county of San Francisco, or the city of Sacramento, or the city of San José in the State of California, and such organization was also composed of the manufacturers of tiles, mantels. and grates, who were residents of other States, and engaged in the sale of their manufactured articles (among others) to the various other defendants in the State of California. There were no manufacturers of. tiles within the State of California,' and all the defendants who were residents' of that State and who were also dealers in tiles, in the prosecution of their business, procured the tiles from outside the State of California and from among those manufacturers who Avere made defendants herein. The manufacturers and dealer's were thus engaged in the prosecution of a business Avhich, Avith reference to the sales of tiles, amounted to commerce between the States. Under these circumstances the dealers in tiles, living in San Franciso, or within a radius of 200 miles thereof, and being some of the defendants in this action, together with the Eastern manufacturers of tiles, who are named as defendants herein, formed an association called The Tile, Mantel a.nd Grate Association of California. The objects of the association, as stated in the constitution thereof, Avere to unite all acceptable dealers in tiles, fireplace fixtures and mantels in San Francisco and vicinity, (within a radius of 200 miles,) and all American manufacturers of tiles, and by frequent interchange of ideas advance the interests and promote the mutual welfare of its members.</p> <p>By its constitution, article I, section 1, it was provided that' any individual, corporation or firm engaged in or contemplating engaging in the tile, mantel or grate business in San Francisco, or within a radius of 200 miles thereof, (not manufacturers,) having an established business and carrying not less than $3,000 worth of stock, and having been proposed by a member in good standing and elected, should,- after having sighed the constitution and by-laAvs governing the association, and upon the. payment of an entrance fee as provided, enjoy • all the privileges of membership. ■ It was provided in the second section of the same article that all associated and individual manufacturers of tiles and fireplace fixtures throughout the. United States might become non-resident members of the association upon the payment of an entrance fee as provided, and after having signed the constitution ■and by-laws governing the association. Theinitiation fee was, for active members, $25, and for non-resident members $10, and each active'member of the association was to pay $10 per year as dues, but no dues were charged against non-residents.</p> <p>An executive committee was to be appointed, whose duty' it was'to examine all applications for membership in the-association and report on the same to the association. It does not appear what vote was necessary to elect a member, but. it is alleged in the complaint that it required the unanimous consent of the association to become a member thereof,' and it was further alleged .that by reason of certain business difficulties there were members of the association who were antagonistic to plaintiffs, and who "would not have permitted them to join, if they had applied; and that plaintiffs were not eligible to join the association for the further reason that they did not carry at all times stock of the value of $3,000.</p> <p>The by-laws, after providing for the settlement of disputes between the members and their customers, by reason of liens, foreclosure proceedings, .etc., enacted as follows, in- article III:.</p> <p>“ Sec. 'T. No dealer and activé member of this association shall purchase, directly or indirectly, any tile, or fireplace fixtures from any manufacturer or resident or traveling agent of any manufacturer not a- member of this association, neither shall they sell or dispose of, directly or indirectly, any unset tile for less than list prices to any person or persons not a member of this association-, under penalty of exnulsion from the association.</p> <p>■ “ Sec. 8. Manufacturers of tile or fireplace fixtures or resident or traveling agents or manufacturers selling or disposing, directly or indirectly, their products or wares to any person, •or persons not members of the Tile, Mantel and Grate Association of California, shall forfeit their membership in the association.”</p> <p>The term “ list prices,” referred to in the seventh section, was a list of prices adopted by the association, and when what are called “ unset” tiles were sold by a member to any one not a member, they were sold at the list prices so adopted, which were more than fifty per cent higher than when sold to a member of the association.</p> <p>The plaintiffs had established a profitable business and were competing with all the defendants, who were dealers and.engaged in the business of purchasing and selling tiles, grates and mantels in San ■ Francisco prior to the formation of this association. The plaintiffs had also before that time been accustomed to purchase all their.'tiles from tile manufacturers in Eastern States, (who were also named as parties defendants in this action,) and all of those manufacturers subsequently joined the association. The plaintiffs were not members of the association and had never been,, and had never applied for membership therein and had never been invited to join the same.</p> <p>The proof shows that by. reason of .the formation of this associátion the plaintiffs have been injured in their business, because they were unable to procure tiles from the manufacturers at any price, or from, the dealers in San Francisco, at less than-the price set. forth in the price list mentioned in the .seventh section of the'by-laws, supra, which was more than fifty per cent over the price at which members of the association could purchase the same. Before the formation of the association the plaintiffs could and did procure their tiles from the manufacturers at much less cost than it was possible for them to do from the dealers in San Francisco after its formation.</p> <p>There was proof on’the part of the defendants below that the condition of carrying $3,00ü worth of stock, as mentioned in the constitution, had not always been enforced, but there was no averment or proof that the article of the constitution on that subject had ever been altered or repealed.</p> <p>The jury-rendered a verdict for $500 for the plaintiffs, and, pursuant to the provisions of the seventh section of the act, judgment.-for treble that sum,-together with what the trial court decided .to be a reasonable attorney’s .fee, Was entered for the plaintiffs.</p> <p>.The association is not ■ obnoxious to the provisions of the Sherman Anti-Trust Act.</p> <p>This case can be distinguished from the Trans-Missouri Case, 166, U. S. 290, and the Joint Traffic Case, 171 U. S. 505. So far as the transactions between the dealers and the manufacturers are- concerned, -the association fixe-, no tariff or prices whatever; and it must be observed generally that .tbe association itself does'no business. It is lawful for a man to decline to- work for another man or class of men, or to do business with another man- or class of men, as he sees fit; and what is lawful for one man to do in this, regard, several men may agree -to act jointly in doing, and may make express and simultaneous declaration of their purpose. The lawfulness of a provision as between dealers and manufacturers, such as is contained in the constitution aiid by-laws of the plaintiffs in error, is impliedly recognized, in the Hopkins Case, 171 U. S. 578, and is aptly recognized, and approved in the Anderson Case, 171 U. S. 604. See also U. S. v. Greenhut, 51 Fed.- Rep. 205.; In re Greene, 52 Fed. Rep. 104; U. S. v. Nelson, 52 Fed. Rep. 646; Dueber Mfg. Co. v. Howard Co., 55 Fed. Rep. 851; S. C., 14 C. C. A. 14; Gibbs v. McNealy, 102 Fed. Rep. 594; Steamship Co. v. McGregor., L. R. 23 Q. B. 598; Bohn v. Hollis, 54 Minnesota, 223.</p> <p>Within these authorities and .on a view of' the constitution, and by-laws of the association in question, -it will appear that the provisions touching-transactions between dealers and manufacturers are not obnoxious to the act of Congress, and it will appear further that the association in question has none of the elements of a monopoly. Indeed, the object of the association' is said to be- to unite .all acceptable dealers and all American manufacturers. .</p> <p>An association cannot be in restraint of tradd when its doors are open to all in the trade, and it fixes no prices whatever. The only limitation was to have established homes with $3,000 worth of stock.</p> <p>The transactions'in unset tiles at list prices are local transactions, intra-state transactions, in no respect taking on the quality of interstate commerce and being purely local, are not within the purview of the act. Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211. Assuming, however, for argument, the transactions in unset tiles to be along the line of interstate commerce,- — they are so trifling, incidental and remote in their bearing upon interstate trade and commerce as to be what mathematicians call negligible quantities which may be left out of consideration without impairing the general result. Trans-Missouri case, the Joint Traffic case, and Hopkins case, supra.</p> <p>The attorney fee allowed was excessive. Plaintiffs below asked for $10,00(1 damages and were only allowed $500 and the fee is out of proportion.</p> <p>The Tile, Mantel and Grate Association of California is a combination declared to be illegal by the act of July 2, 1890, for it is in. restraint of trade or. commerce among the several States, and was formed to and does monopolize such trade or commerce. United States v. Freight Association, 166 U. S. 290, 323; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 241, 244; United States v. E. C. Knight Co., 156 U. S. 1, 16; United States v. Coal Dealers Association, 85 Fed. Pep. 252; Hopkins v. United States, 171 U. S. 578, and see p. 597; Anderson v. United States, 171 U. S. 604, distinguished.</p> <p>The' counsel fee was fair and reasonable.</p>

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

The facts- are stated in the opinion. Direct appeals have beén taken to this court upon the ground that treaty and constitutional questions were involved. Chin Bak Kan v. United States, 186 U. S. 193; United States v. Gue Lim, 176 U. S. 459; United States v. Wong Kim Ark, 169 U. S. 649; The treaty and constitutional questions were raised upon-the preliminary hearing before the Commissioner.

Held: may appear in court and set up -his claim. The notice was good a? against the'world,, and all that is necessary when the proceedings are inrem : “ Laws exist under which property is responsible for taxes imposed upon it. These same laws often authorize the obligation by them imposed upon the property, to be enforced by proceedings'in which no service of process is required except upon such property.

Held: that ‘ a railroad company cannot escape its respotosibilty for negligence by leasing its road to another company, unless its charter or a subsequent act of the legislature specially exempts it from liability in such case’— and it was made in an action to which the appellant herein was the party raising the question!

These are cross appeals from a decree of the Court of Claims, entered in a suit brought under an agreement between the United States and the Choctaw and the Chickasaw Indians, made March 21, 1902, and ratified and affirmed by the act of July 1, 1902. 32 Stat. 611, 619.

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>The facts are stated in the opinion of the court.</p>

Held: not to be such boundary, for the reasons stated in the opinion. Those reasons exist in' full force in this case, only hero the disparity between the amount of land conveyed and paid for and the amount now claimed is double.that stated in the case cited.

<p>ERROR TO THE SUPREME COURT OP THE STATE OP MINNESOTA.</p> <p>Argued simultaneously with, by the same counsel, and on the same briefs as, No. 127.</p>

<p>Federal questions cannot be raised in this court which did not arise below, and where no Federal question is otherwise raised, and the only provision of the Constitution referred to in the assignment of errors in the State Court has no application, an averment of its violation creates no real Federal question and the writ of error will be dismissed.</p>

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

Northern Securities Co. v. United States, 193 U.S. 197 (1904), was a case heard by the U.S. Supreme Court in 1903. The Court ruled 5-4 against the stockholders of the Great Northern and Northern Pacific railroad companies, which had essentially formed a monopoly, and to dissolve the Northern Securities Company.

The facts are stated in the opinion of the court. It appears plainly that testatrix intended the disposition of her property to become effectual only in .case of the happening of the contingency specified in- the will. Parsons v. Lanoe, 1 Ves. Sr. 190; S. C., Ambler, 557; Sinclair v. Hone, 6 Ves. Jr. 607; Estate of Winn, 2 Sw. & Tr. 47; Roberts v. Roberts, 8 Jur.

The facts are stated in the opinion of the court. The Circuit Court had jurisdiction of the bill. All it is necessary to show in order to secure a reversal of the decree is that the complainants claim a franchise and that all of their objections to the constitutionality of the Rapid Transit Act áre not so manifestly frivolous and without color of right as conclusively to prove bad faith upon their part. Swafford v. Templeton, 185 U. S. 487, 493, 494; Riverside & A. Ry.

<p>Where the jurisdiction of the Circuit Court is invoked on the ground of deprivation of property without due process of law in violation' of the Fourteenth Amendment, it must appear at the outset that the alleged deprivation was by act of the State.</p> <p>And where it appeared on the face of plaintiff’s own statement of his case • that the act complained of was not only unauthorized, but was forbidden, By the state legislation in question, the Circuit 'Court rightly declined to proceed further and dismissed the suit.</p>

<p>Decided on authority of Barney v. City of New York, ante, p. 430.</p>

Held: I. That passenger carriers are liable for the consequences of negligent acts to all passengers, gratuitous or otherwise. Steamboat New World v. King, 16 How. 469 ; Phila. & Reading R. R. Co. v. Derby, 14 How. 485 . II. That this liability cannot be evaded by private agreements, all such agreements being per se unreasonable in character and void as against public policy. Lockwood v. Railroad Co., 17 Wall. 363 .

<p>The inherent power which exists in a court to amend its records, and correct mistakes and supply defects and oipissions therein, is not a power to create a new record but presupposes an existing .record susceptible of correction or amendment.</p> <p>An order, entered nunc pro tunc -thirty-three years after an'unrecorded judgment naturalizing an alien is alleged to have been rendered, may be attacked collaterally on the ground that the court had no jurisdiction to enter such an order, when no. entry or memorandum appears in the record or files at the time alleged for the original entry of the judgment.</p> <p>In the absence of jurisdiction to make such an order, the fact that notice of the application therefor was given to the Attorney General does not give the court jurisdiction.</p>

The Cosmopolitan Mining Company was incorporated under the laws of the State of Maine in June, 1884, for the purposes 'of “buying, selling, leasing, working, developing and improving gold, silver, copper or other mines, and purchasing and holding such other property as may be necessary or convenient.” Soon after such incorporation the mining company — as we shall hereafter call the plaintiff in error — became the owner of mining claims, consisting of lodes and millsites,…

The plaintiff in error applied to the Supreme Court of the State of New York for an order discharging of record a certain judgment of that court obtained against him by the defendant in error: The application was denied, 6 Am. Bankruptcy Rep. 434, and the order denying it was affirmed by the appellate division of the Supreme Court, 65 App. Div.

The facts are stated in the opinion of the court. The constitutionality of the state law has beensustained but this suit involves whether in the practical administration of the law the taxing authorities are -not depriving express companies of rights secured by the Constitution.

The facts are stated in the opinion of the court. Í.. Under the constitution of the State of Texas, relating to the question of local option, the legislature of said State is deprived of all power to prohibit the sale of intoxicants in any locality, but such power is vested exclusively in the voting citizenship of each particular locality, town, city, justice precinct, county, or some subdivision thereof, to determine, by a majority vote at an election called for that…

Held: on error to a state court in a chancery case (as also in a case at law) when the facts are found by the court below, that the Supreme Court is concluded by such findings. Egan v. Hart, 165 U. S. 188 ; Dower v. Richards, 151 U. S. 658 ; Bartlett v. Lockwood, 160 U. S. 357 ; Stanley v. Schwalby, 162 U. S. 255 . Mr. Justice Day, after making the foregoing statement, delivered the opinion of the cohrt.

These cases were considered together and are appeals from an order entered in the District Court of the United. States for the Eastern District of New York, affirming an order made by a United States commissioner, directing the deportation of the appellants from the United States to China.upon the ground that they were found witliin this country without certificates of registration, as required by the act of May 5, 1892, as amended November 3, 1893. T Comp. Stat. 1901, 1322.

<p>The question of jurisdiction which the act of March 3, 1891, provides maybe certified direct to this court must be one involving the jurisdiction of the Circuit Court as a Federal Court and not in respect of its general authority as a judicial tribunal. Louisville Trust Co. v. Knott, 191 U. S. 225.</p>

<p>CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE . SIXTH CIRCUIT.</p> <p>The facts are stated in the opinion of the court.</p> <p>cited Pirie v. Trust Co., 182 U. S. 443; 5 Am. Bk. Rep. 814; McKey v. Lee, 105 Fed. Rep. 923; 45 C. C. A. 127; 5 Am. Bk. Rep. 271; Morey Mer. Co. v. Schiffer, 7 Am. Bk. Rep. 670; Gans v. Ellison, 8 Am. Bk. Rep. 153; Kahn v. Exp. & Commission Co., 8 Am. Bk. Rep. 157; Re William Bothwell, 8 Am. Bk. Rep. 213. The date of payment of a check is when it is paid by the bank and not when it is given out by the bankrupt. Re Amasa Lyon, 7 Am. Bk. Rep. 412.</p>

The facts are stated in the opinion of the court. cited in addition to the cases cited iii the opinion of the court, United States v. Shields, 153 U. S. 88, 91; United States v. Patterson, 150 U. S. 65, 69; United States v. King, 147 U. S. 676, 679; United States v. Van Duzee, 185 U. S. 278; United States v. Dundy, 76 Fed. Rep. 357; United States v. Taylor, 147 U. S. 695; Singleton v. United States, 22 C. Cl. 118.

) “a lien on the property of the owner to subcontractors, laborers and those who furnish machinery, material or tile to the contractor;” that “all to whom the contractor becomes indebted in the performance of his contract, are bound by the terms of the contract between him and the owner.” 55 Ohio St. 423 .

On April 28, 1886, George D. Hill, at Seattle, Washington, signed a written application to the Mutual Life Insurance Company of New York (hereinafter called the.insurance company) for a policy of $20,000. The application was forwarded to the home office. The insurance company accepted the application, executed a policy , and forwarded it to its local agent at Seattle, who there, on June 12, 1886, received the first .premium and delivered the policy to Hill.

The Newburyport Water Company, appellant, is a Massachusetts corporation created by. special act on April 23, 1880, ' which act was subject to alteration, amendment or repeal at the pleasure of the legislature. As authorized by its charter, the water company established,. a water supply system in the city of Newburyport.

<p>Dismissed for want of jurisdiction on the authority of the preceding case.</p>

The Third National Bank of Buffalo, spoken of hereafter as the bank, was organized on the ninth of February, 1865, and its articles of association contained the following: “That the board of directors shall have-power to make all by-laws that may be proper and convenient for them to make'under said act for the general regulation of the business of the association and the management and administration of its affairs,' which by-laws may prohibit, if the directors shall-so…

This suit was commenced by the Government to recover an amount alleged to be due on a bond to secure the performance of a contract to carry mail. The defendants-were McCoy, the contractor and principal- in the bond, and his sureties. The cause was put at issue by a general denial and was tried in November, 1899. The Government prosecuted error from' a judgment of non-suit which was entered against it.

Plaintiff in error brings the case here to review the judgment of the United States Circuit Court of Appeals for the Second Circuit, which affirmed the judgment of the Circuit Court for the Northern District of New York, dismissing the plaintiff’s- complaint upon the merits.

Held: but the President of the United States may hereafter assign to any of the said half-breeds, to be held by him or them in fee simple, any portion of said tract not exceeding a section, of six hundred and forty acres to each individual. And this provision shall extend to the cession made by the Sioux in the preceding article. 2 Treaty op 1865. Article IV.

The facts are stated in the opinion of the court. Thefacts found by the court below do not support the judgment rendered.

Held: that it is not every change in the charter of a corporation that will work such a departure from the purposes of its creation as to, forfeit obligations incurred to it, or prevent its carrying on the modified business. . , • Held, that there was no vested right in a policy holder to have the original plan continued, that constituted a contract, nor did the state statute impair or operate to impair the obligation of…

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

<p>Appeal from the Circuit Court of the United States for the Western District of Kentucky.</p>

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

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

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

<p>In error to the District Court of the United States for the District of Porto Rico.</p>

<p>Street Commissioners of Boston. In error to the Supreme Judicial Court of the State of Massachusetts.</p>

<p>In error to the Court of Civil Appeals for the Fifth Supreme Judicial District of th'e State of Texas.</p>

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

<p>Appeal from the District Court of the United States for the Northern District of California.</p>

<p>Appeal from the Circuit Court of the United States for the District of Connecticut;</p>