Volume 195 — United States Reports

Held: as in England, in law, to be the owner of the fee, having the jus in re as well as ad rem, and entitled to all the rights and remedies which the law gives to such owner, and may, after condition broken, maintain ejectment against the mortgagor. The mortgagor or' his assignee,, however, is the legal owner of the mortgaged estate as against all persons excepting the mortgagee' or his assigns.

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

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR ' ' THE' NORTHERN DISTRICT OF ILLINOIS.</p> <p>The facts are stated in the opinion of the court.</p>

McCray v. United States, 195 U.S. 27 (1904), was a 1904 case decided by the Supreme Court of the United States that greenlighted the use of the federal taxing power for regulatory purposes. The Court upheld by a 6–3 vote a federal tax on colored oleomargarine, rejecting contentions that it exceeded Congressional authority. The decision, authored by Justice Edward Douglass White, effectively allowed Congress to regulate intrastate commercial activity by levying taxes on the activity. The justices in the majority refused to examine Congress's motives, instead ruling that the tax was valid because, regardless of the intent behind it, its effect was to raise revenue.

<p>• ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>The facts are stated in the opinion of the court.</p> <p>The proceedings are by way of criminal information to impose the penalty provided for violation of section 11,' of the oleomargarine act. They are directed against the persons and do not seek to forfeit their property. They are, therefore, not penal actions but criminal prosecutions..</p> <p>“Civil proceedings” would seem to include only those in which the object sought is the forfeiture of property, or the recovery of a judgment for the amount of the prescribed penalty. 16 Ency. Pl. & Pr. p. 231; Atcheson v. Everett, 1 Cowp. 382; Clifton v. United States, 4 How. 242; Henderson’s Distilled Spirits, 14 Wall. 33; Snyder v.. United States, 112 U. S. 216; Ex parte Wilson, 114 U. S. 417.</p> <p>The knowingly purchasing or receiving for sale of oleomargarine not stamped according to law is specifically denominated an “ offense/’ the penalty for which is $50. This being a petty offense, why may not a defendant waive his right to a trial by jury ? Callan v. Wilson, 127 U. S. 552; Brewater v. People, 183 Illinois, 143. Upon this point the decisions are not uniform. United States v. Shaw, 59 Fed. Rep. 110, distinctly asserts such a right. Also Bank of Columbia v. Okely, 4 Wheat. 244. As bearing upon the subject, see United States v. Anthony, 11 Blatch. 200; United States v. Taylor, 11 Fed. Rep. 470; In re Belt, 159 U. S. 95; Hallinger v. Davis, 146 U. S. 318; Thompson v. Utah, 170 U. S. 353.</p> <p>While the language of Art. 3 of the Constitution is that the trial of all crimes shall be by jury, the language of the Sixth Amendment is that the accused shall enjoy the right to a trial by jury; and similar language is used in the Seventh Amendment. If a trial by jury be imperative, then it cannot be waived, even though a statute authorizes such a waiver; for a statute cannot nullify a constitutional requirement. But it is the right to such a' trial that is preserved by these Amendments. And if it be only the right, why may not the accused waive- that right, even in the absence of a statute authorizing him to do so, especially in a petty case, where jury trial was not provided for under the common law ?</p> <p>Express written waiver of such right was filed in each of these cases. If that right did not exist, is not a trial by the court, after such an attempted waiver, at most only error ? And, not having been assigned as error below, or in this court, how can it be noticed here ? Maxwell v. Stewart, 21 Wall. 71; 22 Wall. 77; Humphreys v. District of Columbia, 174 U. S. 195.</p>

Held: against the peril of second punishment, but against being again tried for the same offense. We are not here dealing with those statutes which give to' the Government a right of review upon the steps merely preliminary to a trial an'd before the accused is legally put in jeopardy, as where a discharge is had upon motion to quash or a demurrer to the indictment is sustained before jeopardy *131 has attached.

<p>EEROR-'TO THE SUPREME COURT OE THE PHILIPPINE ISLANDS.</p> <p>The facts, which involved the question whether in the absence of a statute of Congress expressly conferring the right of trial by jury, when demanded by the accused, is a necessary incident of judicial procedure in the Philippine Islands, are stated in the opinion of the court.</p>

<p>Decided on authority of Kepner v. United States, ante, p. 100.</p>

<p>ERROR TO THE DISTRICT COURT OP THE UNITED STATES POR THE NORTHERN DISTRICT OP ILLINOIS.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL PROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.</p> <p>This was a bill filed by Stevenson and others, citizens and residents of New York and Rhode Island, against Fain and others,’ citizens and residents of North Carolina and Georgia, in the Circuit Court of the United. States for the Eastern District of Tennessee, to remove a cloud upon the title to a body of wild lands lying adjacent to the boundary between Tennessee and North Carolina.</p> <p>Complainants claimed- title under grants from the State of Tennessee, and alleged that the lands lay wholly in Monroe County, Tennessee. Defendants alleged that the lands lay wholly within the county of Cherokee, in the State of North Carolina, and that they were lawfully granted to their ancestor by that State.</p> <p>The issue involved the true boundary line between North Carolina and Tennessee. The Circuit Court held that the lands lay in the State of North Carolina, and that the title was in defendants, and dismissed the bill.</p> <p>Thereupon an appeal was taken to the Circuit Court of Appeals for the Sixth Circuit and, on hearing, 'the decree of the Circuit Court was affirmed. 116 Fed. Rep. 147.</p> <p>From the decree of the Circuit Court of Appeals this appeal was prosecuted.</p>

<p>APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.</p> <p>The facts are stated in the opinion.</p>

<p>The review of the final judgment of the District Court of the United States for Porto Rico by this court is' not-restricted to cases in which the Constitution or a treaty of the United States or an act of Congress is brought in question and the right claimed under it is denied. There may be cases, certainly civil, cases, which if determined in a Supreme Court of one of the Territories of the United States could be reviewed although not involving any right of a distinctly Federal nature.</p> <p>But a criminal case like this arising under § 3082 Rev. Stat., could not be reviewed by this court'in virtue of the words, in § 35 of the Porto Rico abt of April 12, 1900, “ in the same cases as from the Supreme Courts of the Territories of the United States.”</p> <p>Nor will the words in the same act, “ in all cases where the Constitution of . the United States, or a treaty thereof, or an act of Congress is brought in question and the right claimed thereunder is denied,” authorize this court to review a judgment of conviction-in a criminal case in the court below under § 3082 Rev. Stat., when the only claim at'the trial was that the indictment did not charge “ an offense under the statutes of the United States.” Such an objection was too indefinite.</p> <p>Unless a judgment in the United States District Court for Porto Rico can be reviewed here, then it is final; for no case determined in that court can be carried to a Circuit Court of Appeals.</p>

<p>ERROR TO THE SUPREME COURT OP THE STATE OP ILLINOIS.</p> <p>This was an action in trover instituted September 10, 1897, in the Circuit Court of Cook County, Illinois, by Burke against Crawford & Valentine, plaintiffs in error, to recover damages for the willful and fraudulent conversion of certain reversionary -interests of the plaintiff in 550 shares of Metropolitan Traction stock.</p> <p>There were ten counts in the declaration. In each of the first five counts it was alleged that the defendant •firm of Crawford & Valentine were stock brokers and dealers in investment securities; that plaintiff employed the defendants as his brokers and agents to buy, hold and carry stocks for him subject to his order; that defendants had in their possession, or under their control, certain shares of the capital stock of the Metropolitan Traction Company, which they were holding as a pledge and security for the amount due them from the plaintiff on said stock; that defendants wrongfully, willfully and fraudulently, and without his knowledge or consent, sold said shares of stock, and willfully and fraudulently, and with intent to cheat and defraud the plaintiff, converted plaintiff’s reversionary interest in said stock to their use, whereby it was wholly lost.</p> <p>.In each of the last five counts it was alleged that after defendants had wrongfully and fraudulently, and without plaintiff’s knowledge or consent, sold the plaintiff’s stock and converted the proceeds of such sales to their own use, they falsely and fraudulently represented to him that they still had the stock on hand and were carrying it for him; that their correspondents in Philadelphia, where the stock had been bought, were calling upon them for further demands or margins, and that it therefore became necessary to call upon the plaintiff to make further payments on the stock in order to comply with their correspondents’ demands and to be secured against loss. It was averred in each of said counts that such representations were false and fraudulent, and by means thereof defendants obtained from the plaintiff the aggregate sum of $10,800.</p> <p>To this declaration defendants pleaded not guilty, upon which issue was joined January 4, 1900, and on May 12, 1900, a jury trial was waived in writing. The case rested without action until January 3, 1901, when defendants filed their separate pleas of puis darrein continuance, setting up that on April 5, 1900, the defendants had received their discharge in bankruptcy, in the District Court for the Northern District of Illinois, and that plaintiff’s claims were provable and not excepted from the operation of such discharge. The plaintiff replied denying that his claim was provable', and averred that the same was excepted from such operation.</p> <p>Notwithstanding the plea of puis darrein continuance, the plaintiff introduced evidence and proved the allegations in his declaration and the amount of damages he had sustained. Defendants were found guilty upon all the counts and judgment entered against them.</p> <p>The case was taken to the appellate court, where it appearing that one of the justices had taken part in the trial of the case below, and that the two remaining justices were unable to agree upon the case, the judgment of the Circuit Court was affirmed. The judgment of the appellate court was also affirmed by the Supreme Court of Illinois, 201 Illinois, 581, to review which judgment this writ of error was sued out.</p> <p>The claim of defendant in error is a provable debt in bankruptcy under the bankruptcy act of 1898. Bankruptcy Act, 1898, sec. 17; sec. 1 (11); sec. 63; In re Hirschman, 104 Fed. Rep. 69; T. W. & W. Ry. Co. v. Clews, 67 Illinois, 383; Elliott v. Jackson, 3 Wisconsin, 649; Sloat v. Evans, 35 Illinois, 455; Western Assurance Co. v. Towle, 28 N. W. Rep. 106 (Wis.); Dashaney v. Rogers, 21 Pac. Rep. 342 (Cal.); In re Filer, 125 Fed Rep. 261; In re Silverman, 101 Fed. Rep. 219; Collier on Bankruptcy, 338, 344; Beers v. Hamlin, 99 Fed. Rep. 695; In re Hilton, 104 Fed. Rep. 981; In re Graff, 117 Fed. Rep. 343.</p> <p>Being a provable debt, the claim is of such a character that it is barred by the discharge in bankruptcy of plaintiffs in error, it no"t. being within any of the exceptions of section 17 of the bankruptcy act. (1.) As stock-brokers, or factors, plaintiffs in error were not “acting in a fiduciary capacity.” Chapman v. Forsyth, 2 How. 202; Neal v. Scroggs, 95 U. S. 704; Keine v. Graff, 14 Fed. Cases, No. 7650; Hennequin v. Clews, 111 U. S. 565; Grover & Baker Co. v. Clinton, 11 Fed. Cases, No. 5845; Noble v. Hammond, 129 U. S. 68; Upshur v. Briscoe, 138 U. S. 375; Anstill v. Crawford, 7 Alabama, 340; Woolsey v. Cach, 54 Alabama, 383; Sanders v. Sanders, 56 Arkansas, 588; Chipley v. Frierson, 17 Florida, 642; Georgia R. Co. v. Cubbedge, 75 Georgia, 323; Dupont v. Beck, 81 Indiana, 274; Phillips v. Russell, 42 Maine, 361; Hyman v. Powl, 7 Met. 330; Halpin v. May, 100 Massachusetts, 499; Cronan v. Catting, 104 Massachusetts, 245; Woodward v. Towne, 127 Massachusetts, 42; Green v. Chilton, 57 Mississippi, 599; Gibson v. Gorman, 44 N. J. L. 327; Palmer v. Hussy, 87 N. Y. 308; Lawrence v. Harrington, 122 N. Y. 408; Mulock v. Byrns, 129 N. Y. 25; Bissell v. Couchine, 15 Ohio, 64; Curtis v. Waring, 92 Pa. St. 109; Scott v. Porter, 93 Pa. St. 40; Pankey v. Nolan, 6 Humph. 155; Hammond v. Noble, 57 Vermont, 200; Slayton v. Wells, 66 Vermont, 63; Wilson v. Kirby, 88 Illinois, 570; Straw v. Jurgens, 144 Illinois, 507; Shepherd v. Furness, 153 Illinois, 590; Pierce v. Shippee, 90 Illinois, 376; Am. & Eng. Ency. of Law, vol. 16, p. 781 (2d ed.); In re Basch, 97 Fed. Rep. 761; Bracken v. Milner, 104 Fed. Rep. 522.</p> <p>• The clause “fraud,” etcv used in subdivision four of section 17, is limited and restricted by the qualifying clause “ while acting in a fiduciary capacity.” \ There being no fiduciary relation between the parties, the debt is not within the exception, and hence is barred. In re Rhutassel, 96 Fed. Rep. 599; In re Hirschman, 104 Fed. Rep. 69; In re Lewinsohn, 99 Fed. Rep. 74; Hargadine-McKitrick Co. v. Hudson, 111 Fed. Rep. 361; Gee v. Gee, 87 N. W. Rep. 1116; In re Bullis, 73 N. Y. Supp. 1048; Allen v. Ferguson, 85 U. S. 1.</p> <p>“Fraud,” as used in the act, means positive fraud, involving moral turpitude — not constructive fraud, or fraud in law. Conversion by one in lawful possession of property is not “fraud” within the meaning of the bankruptcy act. Hence the claim of defendant in error does not fall within the meaning of the term “fraud” as there used. And on this point the entire evidence is properly before the court on the plea puis and the replication thereto. Chitty on Pleadings, 246; Clough v. Shepherd, 31 N. H. 490; Teel v. Fonda, 4 Johns. 304; Neal v. Scroggs, 95 U. S. 704; Hennequin v. Clews, 111 U. S. 565; Noble v. Hammond, 129 U. S. 68; Upshur v. Briscoe, 138 U. S. 138; Keime v. Graff, 14 Fed. Cas. No. 7650; Bracken v. Milner, 104 Fed. Rep. 522; Burnham v. Pidcock, 68 N. Y. Supp. 1009; In re Benedict, 75 N. Y. Supp. 165; In re Gaylord, 113 Fed. Rep. 131, 135; Scott v. Porter, 39 Am. Rep. 726; Watertown Carriage Co. v. Hall, 72 N. Y. Supp. 466; Crosby v. Miller, 25 R. I. 172 (55 Atl. Rep. 328); Western, etc., Co. v. Hunt, 116 Fed. Rep. 442. •</p> <p>The case made by defendant in error shows that there was no fraudulent intent or positive fraud on the part of plaintiffs, in error, and that the relations between the parties were purely contractual and therefore not responsive to the counts either for conversion or deceit. Markham v. Jourdain, 41 N. Y. 239; Wood v. Hayes, 15 Gray, 375; In re Swift, 105 Fed. Rep. 493; Coville v. Loud, 135 Massachusetts, 41; Weston v. Jordan, 168 Massachusetts, 501; Corbett v. Underwood, 83 Illinois, 324.</p> <p>The evidence shows that the transactions out of which theV claim of defendant in error arises were of a gambling character and illegal and void at common law and under the statute. The court may, at any stage, when it appears that the matter involved is forbidden by public policy, or is against public morality, decline to consider a claim so founded* regardless of the pleadings. Lyon v. Culbertson, 83 Illinois, 38; Soby v. People, 31 Ill. App. 242; Cothran v. Ellis, 125 Illinois, 506; Schneider v. Turner, 130 Illinois, 39; Jameson v. Wallace, 167 Illinois, 396; Oscanyon v. Arms Co., 103 U. S. 261; Martin Emerich Outfitting Co. v. Siegel, Cooper & Co., 108 Ill. App. 364.</p> <p>The claims of defendant in-error were claims for unliquidated damages árising out of'-torts; they were claims for damages occasioned by positive fraud; they were not provable in ban-íb-. ruptcy, and therefore were not barred by the discharge of. plaintiffs in error.</p> <p>As to the proof of debts, under the provisions of the act of 1898, paragraph a of § 63 classifies all claims or “debts which may be proved,” while paragraph b provides for the precedent liquidation of such unliquidated claims only as come within the provisions of paragraph a, .-and, thereafter, for the proof and allowance of such claims.</p> <p>' Claims for unliquidated damages arising out of tort do not come within any of the provisions of paragraph a, and hence are not provable. Collier on Bankruptcy, 1900, 385; Lowell on Bankruptcy, 487; In re Yates, 114 Fed. Rep. 365; In re Big Meadows Co., 7 Am. Bank. Rep. 697; Old Colony Boot & Shoe Co. v. Parker, 183 Massachusetts, 557, 561; Watertown Carriage Co. v. Hall, 77 N. Y. Supp. 1028.</p> <p>The claims of the defendant in error were for unliquidated ...damages arising out of tort, and did not come within any of the provisions of paragraph a. Under Dunbar v. Dunbar, 190 U. S. 340, such claims cannot be liquidated or proved under the provisions of paragraph b.</p> <p>As to waiving the tort and effect in bankruptcy, see Bixby v. United States, 188 U. S. 405; Williamson v. Dickens, 27 N. Car. 259; Hughes v. Oliver, 8 Pa. St. 426; Graham v. C. M. & St. P. Ry. Co., 10 N. W. Rep. 609; Bradner v. Strang, 89 N. Y. 299, 306.</p> <p>A claim which could not be liquidated and proved under the act of 1867 certainly cannot be liquidated and proved under the act of 1898. Defendant in error did not file any claim with the receiver or receive any dividend.</p> <p>While the record does not show that the state Supreme Court passed upon the question as to whether the claims of plaintiff in error were provable,' yet, the question appears of record, and was raised and argued in each of the courts below, and calls into exercise the jurisdiction of this court. The question is involved in the main question: Was the' discharge in bankruptcy of plaintiffs in error a bar to the claims in controversy? If the claims were not provable, the discharge was not a bar, and the judgment should be affirmed. Collier v. Stanbrough, 6 How. 21; Dewey v. Des Moines, 173 U. S. 197, 198; Murdock v. Memphis, 20 Wall. 590, 636.</p> <p>The qualifying clause in subdivision 4 of § 17 of the act of 1898, “while acting as an officer or in any fiduciary capacity,” refers, both' grammatically and logically, to its next antecedent only, which is the term “defalcation,” and does not apply to or restrict the terms “fraud” or “ embezzlement.”</p> <p>As to grammatical construction and effect of punctuation, see City Safe Dep. Co. v. Lee, 107 Ill. App. 263; S. C., 204 Ill. Sup. Ct. 69; Endlich on Interpretation, § 2; 26 Am. & Eng. Ency. of Law (2d ed.), 613; Cushing v. Worrick, 9 Gray, 382, 385; State v. Jernigan, 3 Murphey, 12, 18; Dearborn v. Inhabitants of Brookline, 97 Massachusetts, 466, 469; Wetmore v. Wetmore, 17 Pa. County Rep. 11; Quinn v. Lowell Electric Light Co., 140 Massachusetts, 106; Price v. Price, 10 Ohio St. 316; Hamilton v. Steamboat, etc., 16 Ohio St. 428; Zimmerman v. Willard, 114 Illinois, 364; 45 Cent. Law J. 229, 236; Albright v. Payne, 1 N. E. Rep. 20; Joy v. St. Louis, 138 U. S. 1, 32.</p> <p>It cannot be held that the clause applies to some classes of debts created by positive fraud, but not to all. It has no. other or different meaning or application in the act of 1898' than it had in the acts of 1841 and 1867. Under the act of 1867 it was never held that “whi],e acting in any fiduciary character” applied to- or restricted the term “fraud.”</p> <p>Neither does it restrict the term “embezzlement,” which is a specific term and imports the violation of a trust. Moore v. United States, 160 U. S. 268; Grin v. Shine, 187 U. S. 181, 196; Central Nat. Bank v. Conn. Mut. Life Ins. Co., 104 U. S. 54. As to definition of “ defalcation,” see 9 Am. & Eng. Ency. of Law, 2d ed., 166; see Black’s Law Dictionary; Madison Twp. v. Dunkle, 114 Indiana, 262; Chapman v. Forsyth, 2 How. 202, 208; Frey v. Torrey, 75 N. Y. Supp., 40. Noth-, ing in the statute can be regarded- as superfluous but full effect must be given to every part of it. Endlich on Interpretation, §§ 23, 265; Montclair v. Ramsdell, 107 U. S. 152; Bishop on Stat. Crime, 3d ed., § 82; Opinion of Justices, 22 Pick. 571, 575; Commonwealth v. McCaughey, 9 Gray, 296; Wilmot v. Mudge, 106 U. S. 217.</p> <p>Section 33 of the act of 1867, was substantially a reenactment of the act of 1841, in that regard, with the additional provision that no debt created by fraud or embezzlement shall be discharged. See Noble v. Hammond, 129 U. S. 65, 69.</p> <p>As to the construction to be given to § 33 of the act of 1867, with reference to the release bf a bankrupt from debts or claims created by his positive fraud, see Strang v. Bradner, 114 U. S. 555; Ames v. Moir, 138 U. S. 306; Forsyth v. Vehmeyer, 177 U. S. 177, holding that a discharge in bankruptcy did not release a bankrupt from debts or claims which were created by his positive .fraud involving, moral turpitude or intentional wrong, while not acting as an officer or in any fiduciary capacity at the time he committed the fraud.</p> <p>Subd. 4 of § 17 of the act of 1898, is substantially a reenactment of a corresponding provision in the act of 1867, with the addition of the word “misappropriation.” Loveland on Bankruptcy, § 293, 295; Lowell on Bankruptcy, 395; In re Basch, 97 Fed. Rep. 761; Collier on Bankruptcy, 3d ed. 198; Frey v. Torrey, 73 N. Y. Supp. 201; S. C., 75 N. Y. Supp. 40.</p> <p>When an act, or part of an act, which has received a judicial construction, is reenacted in' substantially the same terms, that construction must be considered to. have the sanction of the legislature, unless the contrary appears. Mere change in the phraseology works no change in the established interpretation- thereof, unless it clearly appears that such was the intention of the legislature. Black on Interpretation, 161; Bradley v. State, 69 Alabama, 318; Huddleston v. Askey, 56 Alabama, 218; Posey v. Pressly, 60 Alabama, 243, 249; McDonald v. Hovey, 110 U. S. 619, 628; Potter’s Dwarris, 181, note 2; Yates’s Case, 4 Johns. 318, 358; Dominick v. Michael, 4 Sandf. (13 N. Y.) 374, 409; The Devonshire, 13 Fed. Rep. 39; Reiche v. Smythe, 13 Wall. 162; Willis v. Eastern Trust & Banking Co., 169 U. S. 295, 307; Commonwealth v. Hartnett, 3 Gray, 450; State v. Cornell, 75 Fed. Rep. 25.</p> <p>A discharge in bankruptcy, under the act of 1898, does not release a bankrupt from debts created by his positive fraud involving moral turpitude or intentional wrong. In re Wollock, 120 Fed. Rep. 912; In re Blumberg, 1 Am. Bk. Rep. 633; In re Black, 97 Fed. Rep. 493; In re Thomas, 92 Fed. Rep. 912; In re Basch, 97 Fed. Rep. 761; In re Lewensohn, 99 Fed. Rep. 73; In re Steed, 107 Fed. Rep. 682; Loveland on Bankruptcy, §§ 293, 295; Lowell on Bankruptcy, § 433, p. 488; Collier on Bankruptcy, 3d ed. 200; Bracken v. Milner, 104 Fed. Rep. 522; In re Cole, 106 Fed. Rep. 837; Frey v. Torrey, supra; Stevens v. Meyers, 76 N. Y. Supp. 332; Predmore v. Torrey, 77 N. Y. Supp. 86.</p> <p>The cases cited by plaintiffs in error can be distinguished: The history of bankruptcy legislation shows that no such law was ever enacted, either in this country or in England. It has been repeatedly declared by the highest, courts of both countries that bankrupt laws are enacted with the object and intention of relieving honest men, but not rascals, from the burden of their debts. In re Silverman, 22 Fed. Cas. 139; Cong. Rec. June 28, 1898; Re Dow’s Estate, 105 Fed. Rep. 889; In re Becker, 106 Fed. Rep. 54; Turner v. Turner, 108 Fed. Rep. 785; Lubke v. Thomas, 116 U. S. 606; In re Scott, 126 Fed. Rep. 981; McDonald v. Brown, 10 Am. Bank. Rep. 58; Dister v. McCauley, 71 N. Y. Supp. 949; Tinker v. Colwell, 193 U. S. 473.</p>

The facts, which involved the constitutionality of § 4466a of the statutes of Wisconsin, 1898, are stated in the opinion of the court. Section 1 of the Fourteenth Amendment of the Federal Constitution contains an express restriction against the State, through any of its governmental agencies, executive, legislative or judicial, depriving any person of liberty or property without ^ due process of law.

Held: insufficient to sustain the jurisdiction of the Circuit Court on the. ground of diverse citizenship.

<p>certiorari to the circuit court of appeals for the fifth CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

Held: to be void as against the holder of the permit as an arbitrary and discriminatory exercise of the police power which amounted to a taking of property without due process of law and an impairment of property rights protected by the Fourteenth Amendment. Where property rights will be destroyed unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a court of equity.

<p>Decided on authority of Dobbins v. Los Angeles, ante, p. 223.</p>

' This case is brought here on the following certificate: “This was an action of tort. . The plaintiff was a citizen of Tennessee, and the defendant a corporation organized under the laws of Virginia. The jurisdiction of the court below was wholly dependent upon diversity of citizenship.

Held: however, in Folsom v. United States, 160 U. S. 121 , that the intention was plain and that the statute must be taken as it read.

Held: proof both ways.' .Did the Ohio court have jurisdiction to render the judgment in question? It is a settled doctrine, Chief Justice Marshall said in Rose v. Himely, 4 Cr. 241, 269, that the effect of every judgment must depend upon the power of the court to render that judgment.

<p>In an action by a trustee in bankruptcy to recover a preferential payment the insolvency of the bankrupt at the time of payment and whether the payee had reasonable cause to believe that a preference was intended are questions of fact determined by the verdict of the jury.</p> <p>The commencement of an action by a trustee in bankruptcy to recover a preferential payment is a demand and he is entitled to interest from that time.</p> <p>One who after receiving a preferential payment from the bankrupt, loans him money in good faith without security and which actually passes into the bankrupt’s possession, is entitled to have the amount loaned set off from the amount recoverable by the trustee.</p>

The controlling question in these cases arises on pleas of res judicata. ' The essential facts are as follows: On October 6, 1884, Daniel B. Fayerweather, a citizen and resident of the State of New York, made a will, by the ninth article of which he gave to twenty colleges bequests amounting in the aggregate to $2,100,000.

Held: That persons having claims to mining property in the course of development are bound to the utmost diligence in enforcing them, and in such cases the doctrine of laches is relentlessly enforced.

Upon this record the Metropolitan Railroad Company seeks, both by appeal and writ of error, to obtain a review of the action of the Court of Appeals of the District of Columbia, affirming an order of the Supreme Court of the District, which order sustained an award against the company, contained in the verdict of a jury rendered in condemnation proceedings, under an act of Congress. 31 Stat. 668.

Held: however, that the provisions discriminating in favor of Texas ships and ports were separable from the remainder of the statutes, and therefore the general regulations concerning pilotage were valid, although the discriminating provisions were eliminated.

<p>Actual knowledge of the proceedings contemplated by section 17 of the Bankruptcy Act is a knowledge in time to avail a creditor of the benefits of the law and to give him an equal opportunity with other creditors, and not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends. •</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WASHINGTON.</p> <p>The facts are stated in the opinion.</p> <p>The intention to dedicate and the acceptance of the city appear and constituted a valid common law 'dedication. Elliott on Roads and Streets, Ch. V, 85; Dillon on Mun. Corp., 4th ed., vol. 2, 737; 5 Am. & Eng. Ency. of Law, 395; New Orleans v. United States, 10 Peters, 662; City of Cincinnati v. White, 6 Peters, 431; Godfrey v. City of Alton, 12 Illinois, 29; Surgeant v. Bank, 4 McLean, 339. An incomplete statutory dedication may become one at comjnon law by acceptance by the public. Fulton v. Mehrenfeld, 8 Ohio St. 440; Maywood Co. v. Village of Maywood, 6 N. E. Rep. 866.</p> <p>The owner is precluded from revoking such dedication. 61 Am. Dec. 221; Heirs of David v. New Orleans, 79 Am. Dec. 586; People v. Jones, 6 Michigan, 176. Privies in estate are bound to the.same extent as grantors. Warren v. Town of Jackson, 15 Illinois, 236; see also Kenyon v. Knipe, 2 Washington, 394; Tilzie v. Haye, 8 Washington, 187; Schettler v. Lynch, 64 Pac. Rep. 955.</p> <p>Even if some work was improperly done or an improper item included, the entire assessment would not be vitiated. Cincinnati v. White Lead Co., 44 Ohio St. 243; Dyer v. Scalmanini, 69 California, 637. The act provides a method of objection and appeal and that procedure must be followed or the right lost. Tumwater v. Pix, 18 Washington, 153; New Whatcom v. Bellingham Bay Imp. Co., 16 Washington, 131; Annie Wright Seminary v. City of Tacoma, 23 Washington, 109.</p> <p>A reassessment can be made by a different method from that in force when the original assessment was made. Wilson v. Seattle, 2 Washington, 543.</p> <p>The question of adopting a method of levying assessments for local improvements lies purely in legislative' discretion, and so long as that discretion is exercised in a reasonable manner, and gives parties interested an opportunity to be heard with the right to appeal to the courts from the determination of the city council, it cannot be said that there is a violation of the Fourteenth Amendment. Norwood v. Baker, 172 U. S. 269; Tonawanda v. Lyon, 181 U. S. 389; Wright v. Davidson, 181 U. S. 371; French v. Asphalt Paving Co., 181 U. S. 325.</p> <p>There is nothing in the front-foot method repugnant either to the Constitution of the United States, to the state constitutions and laws, to the decisions of the courts or to the conclusions of practical experience. Walston v. Nevin, 128 U. S. 582 ; Davidson v. New Orleans, 96 U. S. 97, 104.</p> <p>So the determination of the taxing district and the manner of the apportionment are all within the legislative power. Spencer v. Merchant, 125 U. S. 345; Stanley v. Supervisors, 121 U. S. 535, 550; Mobile v. Kimball, 102 U. S. 591; Hagar v. Reclamation District, 111 U. S. 107; United States v. Memphis, 97 U. S. 284; Laramie v. Albany Co., 92 U. S. 307; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 176; Parsons v. Dist. of Col., 170 U. S. 51; Kidd v. Parsons, 128 U. S. 1; People &c. v. Brooklyn, 55 Am. Dec. 276; 24 Am. & Eng. Ency. Law, 1st ed., 71; Mattingly v. Dist. of Columbia, 97 U. S. 687; Shoemaker v. United States, 147 U. S. 282; Paulsen v. Portland, 149 U. S. 30; Bauman v. Ross, 167 U. S. 590; Lexington v. McQuillan, 35 Am. Dec. (Ky.) 161; Dorgan v. Boston, 12 Allen, 238; Cooley’s’ Const. Lim., 6th ed., 623; Baltimore v. University, 56 Maryland, 499; Northern Ind. R. R. Co. v. Connelly, 10 Ohio St. 159; 2 Dillon Municipal Corporations, 2d ed., § 761; Elliott on Roads and Streets, 391; Cooley on Taxation, 2d ed., 644; Whiting v. Townsend, 57 California, 515; Emory v. San Francisco Gas Co., 28 California, 345; Hayden et al. v. City of Atlanta, 70 Georgia, 817; Bacon v. Mayor of Savannah, 32 A. & E. Corpn. Cas. 244; Springfield v. Green, 120 Illinois, 269; Palmer v. Stumph, 29 Indiana, 337; Amery v. Keokuk, 72 Iowa, 701; Sheley v. Detroit, 45 Michigan, 431; Farrar v. St. Louis, 80 Missouri, 379; Sigler v. Fuller, 34 N. J. L. 232; O'Reilly v. Kingston, 114 N. Y. 439; Roberts v. First Nat. Bank, 8 North Dakota, 504; Upington v. Treasurer, 24 Ohio St. 232; King v. City of Portland, 2 Oregon, 147; Harrell v. Storrie, 47 S. W. Rep. 838; Davi's v. Lynchburg, 84 Virginia, 861; Austin v. Seattle, 2 Washiñgton, 669; Weeks v. City of Milwaukee, 10 Wisconsin, 243.</p> <p>After a person has signed a petition for an improvement, which can only be paid for by means of an assessment on contiguous property, he is estopped from contesting- the validity of the assessment, especially after the work hás been completed and accepted by the proper authorities. Cooley, Tax’n, 819; Ball v. Tacoma, 9 Washington, 592; Motz v. City of Detroit, 18 Michigan, 495; Wood v. Norwood Twp., 52 Michigan, 32; Ricketts v. Spraker, 77 Indiana, 371; Patterson v. Baumer, 43 Iowa, 477; Ferson’s Appeal, 96 Pa. St. 140; Evansville v. Pfisterer, 34 Indiana, 36; Elliot, 420; Tash v. Adams, 10 Cush. 252; Wright v. Tacoma, 19 Pac. Rep. 45; Powers v. New Haven, 120 Indiana, 185; 11 Am. & Eng. Ency. Law, 2d ed., 429; Taber v. Ferguson, 109 Indiana, 227; Ross v. Stackhouse, 114 Indiana, 200; Jenkens v. Stetler, 118 Indiana, 275; Johnson v. Allen, 62 Indiana, 57.</p> <p>Due process of law is afforded where there is opportunity to be heard before the body which is to make the assessment, and the legislature of a State may provide that such hearing shall be conclusive so far as the Federal Constitution is concerned.</p> <p>The former owner could have opposed the reassessment. Inviting the municipality to open a highway he did so according to the statute. Howell v. Tacoma, 3 Washington, 715; Grant v. Bartholomew, 58 Nebraska, 839; Birdseye v. Clyde, 61 Ohio St. 27; Smith v. Minto, 30 Oregon, 351; Terre Haute v. Mack, 139 Indiana, 99.</p> <p>When a man’s land is assessed unlawfully or in an uncon. stitutional manner for street improvements, he may contest the validity of the assessment, although he was a petitioner for the improvement.</p> <p>As to the planking, see Session Laws, Washington Territory, 238, § 7.</p> <p>Leaving out the violation of plain statutes involved here, there is such inequality as amounts to confiscation. It was grossly unnecessary and unjust to include this vacant, unoccupied tract in a district which was to bear the expense of planking when that planking was extended only along the. settled portion of the street, and was to stop a thousand feet from our own tract, vacant and wild. Norwood v. Baker, 172 U. S. 269; Sears v. Boston, 173 Massachusetts, 71; Cooley, Tax’n, 1209.</p> <p>Even if the original owner could not avoid the reassessment his grantee could. The reassessment was by a subsequent law against an innocent purchaser. Richards v. Shingle Co., 41 Michigan, 860; Smith v. Allen, 18 Washington, 1; Tallman v. Janesville, 17 Wisconsin, 51; Cross v. Milwaukee, 19 Wisconsin, 509, distinguished.</p> <p>The lien resisted was a secret one. This seems to us not true of liens reassessed under laws existing before the new purchaser comes in. There he buys with the knowledge that the State has already asserted the right, though it has not yet exercised the intention. As against subsequent laws, the purchaser may well protest that at the time he bought, the State had not even asserted a right. The State should be estopped. Curnen v. New York, 79 N. Y. 511.</p> <p>There should be notice of some kind in a district assessment. Scott v. Toledo, 36 Fed. Rep. 385; Paulsen v. Portland, 149 U. S. 30.</p>

The facts are stated in the opinion. The national banking act authorizes the taking of the highest rate allowed by the State. The State allowed eight per cent and the bank never took over seven and a half per cent.. The interest on the overdraft at twelve per cent only amounted to $14.51 and the principle of rde minimis applies. The question of what is compound interest is one for the court.

The facts are stated in the opinion. Congress authorized the'conveyance of the property to the Dry Dock Company on several conditions, and upon the happening of any one of the contingencies the property, with all its privileges and appurtenances, will revert to and become the property of the United States. Any possible' right of state taxation would thereby be destroyed. For a description of such an estate and incidents see Nor. Pac. R. R. Co. v. Townsend, 190 U. S. 267.

This was a.suit in equity commenced in the Circuit Court of'Douglas County, Wisconsin, by Warren E. McCord to obtain a decree adjudging the defendant, now plaintiff in error, John F. Hill, the holder of the legal title to the northwest quarter of section seventeen, in- township forty-eight notth, óf range eight west, in Bayfield County, Wisconsin, in trust for the plaintiff.

. This was a bill originally filed February 1, 1888, in the Superior Court of Cook County by the plaintiff in error, Cramer, under her then name of Fannie N. Dresser, against her sister, Lilly B. Dresser, Henry H. Gage, Julia Wilson and two others, for the partition of certain real estate in Chicago, for a settlement of equities or liens thereon, for a receiver and for the removal of certain clouds upon complainant’s .title.

■. This was a petition for certain allowances claimed to be due petitioner as a captain in the United States Navy, under act of-March 3, 1899, 30 Stat. 1004, equalizing the pay of army and "navy officers, and known as the Navy Personnel Act. The findings of fact are too long to be here reproduced, but the several items claimed by petitioner, and from the disposition of which these appeals are taken, are cited by counsel in their brief and by the Court of Claims as follows: 1.

The appellant filed his bill in this suit in the proper court of New Mexico for the purpose of obtaining relief against the defendants mentioned therein. The defendants demurred on' several grounds, among which was that the complainant’s remedy, if any, was at law, and that the ■ bill did not state a case for a court of equity.

Held: under the circumstances of.that case, the mere acceptance-of a'bill of lading did not alter a previously made oral contract in relation to the shipment.

This action was brought in the Court of Claims on October 24, 1891, to recover damages against the United States and the Ute tribe of Indians in the sum of fourteen hundred dollars, the value of certain sheep alleged to have been taken, and destroyed or used in June, 1873, by the said Indians, The petition was filed under the provisions,of the act of March 8(/ 1891, entitled “An act to provide for the adjudication and payment of claims arising from Indian depredations.” 26…

Held: That the act embraces land patented as well as unpatented, to which the right of the grantee or its lawful successor is claimed to have attached by •definite location or selection, and which has been purchased directly from ■ the United States or settled upon or claimed in good faith by any qualified settler under color of title or claim of right under any law of the United States or any ruling of the Interior…

The gas company, defendant in error, an English corporation, sued the city of San .Juan, the plaintiff in error, to recover $14,600.60, alleged to be due for services in lighting 485 street lamps from November, 1899, to September 16, 1900. Annexed to the petition was an account showing the items from which the balance resulted.

■The United States on the sixth day of March, 1893, filed this bill in the Circuit Court of the United States for the District of Minnesota for the purpose of setting aside the certification, under the land grant of Congress, 14 Stat. 87, made by the Sécretary of the Interior, of the land' described in the bill, to the State of Minnesota,' for the benefit of the railroad company, and also to set aside the conveyance thereof by the State to the railroad company,.and by the…

Held: therefore, that the act was not a grant of rights only in the public domain, and the character of the rights was made unmistakable. The statute, the court said, “in effect amounts to a prohibition of all state monopolies” in commercial intercourse by telegraph. This is expressed more than once as the fundamental idea and sole purpose of the statute.

Held: however, that the Atlantic and Ohio Telegraph Company was not authorized under its charter to appropriate to its use a railroad right of way, even within the limitations imposed — to wit, that the use should not interfere with the common use' of such highway, or incommode the public use thereof.

<p>Nothing in the decree of this court in Colombia v. Cauca Co., 190 U. S. 524, prohibits the Circuit Court from allowing interest on the amount of the items allowed.</p>

Held: reviewing the former cases in this court, that, under the act of 1867, the fraud referred to meant positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, which may exist without an imputation of bad faith. 'Such a construction of the statute,' it was said in Neal v. Clark , 95 U. S. 704, 709 , 24 L. ed. 586, 587, 'is consonant with equity, and consistent with the…

<p>In error to the United States Court of Appeals for the Indian Territory.</p>

<p>In error to the Supreme CourtN of the State of California.</p>

<p>Appeal from the Supreme Court of the Territory of New Mexico.</p>

<p>In error to the Supreme Court of the State of New York.</p>

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

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

<p>Appeal from the United States Circuit Court of Appeals for the Third Circuit.</p>

<p>In error to the Circuit Court of Franklin County, State of Mississippi.</p>

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

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

<p>Appeal from the District Court of the United' States for the' Southern District of Texas.</p>

<p>In error to the Court of Appeals of the District of Columbia.</p>

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

<p>Appeal from the Supreme Court of the Territory of Arizona.</p>