Volume 202 — United States Reports

IN EQUITY. The State of Louisiana by leave of court filed her bill against the 'State of Mississippi, October 27, 1902, to obtain- a decree determining a boundary line between the two States and requiring the State of Mississippi to recognize and observe the fine so determined.

<p>Defining the boundary line between the States of Louisiana and Mississippi under the opinion in this cáse. Ante, p. 1.</p>

<p>IN EQUITY.</p> <p>This cause came on for'final decree and was submitted on the following stipulation:</p> <p>“And now comes the State of Iowa, complainant in this cause, and also comes the State of Illinois, defendant in this cause, and severally and jointly move the court to vacate and set aside so much of the interlocutory order entered in this cause on the third day of January, A. D. 1893, as orders ‘ that a commission be appointed to ascertain and designate at said places the boundary line between the two States, said commission consisting of three competent persons to be named by the court, upon suggestion of counsel, and be required to make a proper examination and to delineate on maps prepared for that purpose the true fine as determined by this court and report the same to the court for its further action ’ ; and also the interlocutory order entered in this cause on the seventh-day of March, A. D. 1893; and also that part of the interlocutory order entered in this cause on the tenth day of April, A. D. 1893, which -was not set aside and vacated by the interlocutory order entered in this cause on the fifteenth day of January, A. D. 1894; and that that part of the interlocutory order entered in this cause on the third day of January, A. D. 1893, whereby it was 'ordered, adjudged, and decreed by this court that the boundary line between the State of Iowa and the State of Illinois is the middle of the main navigable channel of the Mississippi river at the places where the nine bridges mentioned in the pleadings cross said river, ’ be declared the final order, judgment, and decree of this court in this cause.</p>

IN EQUITY. By leave of court the State of Oregon filed an original bill against Ethan A. Hitchcock, Secretary of the Interior, and William A. Richards, Commissioner of the General Land Office, to restrain, the defendants from allotting or patenting to any Indians or other persons certain lands within the limits of the Klamath Reservation, which it is alleged were on March 12, 1860, swamp and overflowed lands, and praying a decree establishing the title of the State of Oregon…

Held: any rule of court to the contrary notwithstanding. ” The act of August 13, 1888, 25 Stat. 433 , provides that the. Circuit Courts of the United States shall have original jurisdiction concurrent with the courts of the several States in suits at common law and in equity.

<p>Under see. 68 of the Cherokee Act of July 1, 1902, 32 Stat. 726, ás construed by the act of March 3, 1903, 32 Stat. 996, and the agreement of</p> <p>' December 19, 1891, providing for the sale of-‘ the Cherokee outlet, the Court of Claims had jurisdiction of all claims of the Cherokee Indians against the United States, and the claims were to be reopened and reexamined de novo, and the court and the accountants were to go behind statutory and treaty bars and receipts in full, and were to consider any alleged and declared amount of money promised but withheld under any treaty or law.</p> <p>The United States, as stated in the Slade & Bender account made under the agreement of December 19,1891, and as found by the Court of Claims, is liable to the Cherokee Nation for $1,111,284.70, the amount paid for the removal of the Eastern Cherokee Indians to the Indian Territory, improperly charged to the treaty fund.</p> <p>The question whether interest should be allowed on this fund having been submitted, under the Eleventh Article of the Cherokee Treaty of 1846, to the Senate of the United States, and that body having by resolution found that interest should be allowed at five per cent from June 12,1838, until paid, the amount of interest was one of the subjects of difference referred to the.Court of Claims under the-act of July 1, 1902, and that court had jurisdiction, to allow interest, and correctly awarded it at the rate, and from the time specified, in the Senate resolution.</p> <p>The term, Cherokefe Tribe or any band thereof, as used in the act of July 1, 1902; means the Cherokee people as a people, and not the Cherokee Nation as a body politic, and the Court of Claims correctly decided that the amount awarded to the Cherokee Nation be paid to the Secretary of the Interior to be' by him received and, distributed to the persons entitled thereto, but such distribution should be made as to the Eastern Chérokees as, individuals whether East or West of the Mississippi, parties to the treaties of 1835, 1836 and 1846, exclusive of the Old Settlers.</p> <p>The Eastern and Emigrant Cherokees are not entitled to their demand of one-fourth of the entire sum awarded, but only to per capita payment with the Eastern Cherokees.</p>

<p>APPEAL FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>On May 16, 1905, the respondent in these two cases was convicted in the District Court of the United States for the District of Idaho, Northern Division, on the charge of unlawfully and feloniously introducing intoxicating liquors into the Nez Perce Indian Reservation, -«id sentenced to pay a fine of $100 and be confined in the penitentiary for the term of one year and ten days. On July 21, 1905, a bill of exceptions was duly prepared and signed. Thereafter, without suing out a writ of error, respondent applied to the Circuit Court of Appeals of the Ninth Circuit for writs of habeas corpus and of certiorari. It does not affirmatively appear that any writ of habeas corpus was issued, the record in the Court of Appeals reciting:</p> <p>“The petition in the above-entitled matter for a writ of habeas corpus and a writ of certiorari having been duly submitted to the court,' and the petition for a writ of certiorari therein having been granted and a writ of certiorari having been issued, directed to the honorable the United States District Court for the District of Idaho, and requiring the said District Court to certify to this court a transcript of the record and proceedings in the suit therein of the United States v. George Dick, and the return to the said writ of certiorari having been filed, the matter was duly argued and submitted to the court for consideration and decision upon the said return and upon the briefs of counsel for the respective parties.</p> <p>“ On consideration whereof, and the court being of the opinion that the United States District Court for the District of Idaho did not have jurisdiction of the offense charged in the indictment found against the petitioner .in the suit of the United States v. George Dick, it is ordered and adjudged that ihe petitioner, George Dick, be discharged from imprisonment.”</p> <p>From this order of discharge, Whitney, as Warden of the Idaho state penitentiary (the respondent named in the petition foír a habeas corpus), perfected an appeal to this court, and that appeal is case No. 494. Subsequently he applied for a writ of. certiorari, to review the decision of the Court of Appeals, which -was allowed, and that is case No. 557. The record in case No; 494 was directed to stand as the return to the writ of certiorari. ' Both the- appeal and the certiorari were taken by the Warden, appearing by the United States Attorney for the District of Idaho, under the direction of the Attorney General of the United States.</p> <p>The jurisdiction of the Federal courts to issue writs of habeas corpus, except so far as the original jurisdiction of this court is concerned, is purely statutory. Ex parte Bollmann, 4 Cranch, 93, 94; Ex parte Dorr, 3 How. 104, 1Ó5; Ex parte Parks, 93 U. S. 22; Ex parte Hung Hang, 108 U. S. 552; In re Burrus, 136 U. S. 586, 589 et seq.; Ex' parte Caldwell, 138 Fed. Rep. 487; 2 Story on Const. §1341; Cooley’s Const. Lim., *345, *349.</p> <p>The several statutes on the subject. have been embodied in ch. 13, Rev. Stat. .§§751, 752; Judiciary Act of 1891, 26 Stat. 826; §-716, Rev. Stat. The language of the act of 1891 is restrictive and § 716, Rev. Stat., cannot be regarded as authorizing the Circuit Court of Appeals to issue writs of habeas corpus: See 2 Foster’s Fed. Prac. § 366; In re Boles, 48 Fed. Rep. 75; In re Neviit, 117 Fed. Rep. 448. ■ -</p> <p>At any rate the writ was improvidently issued. Riggins v. ■ United States, 199 U. S. 547.</p> <p>The legislation embraced in §§ 716,751, 752, 753, Rev. Stat., is comprehensive and brings the writ of habeas corpus within the jurisdiction of every court and every judge of the United States. Ex parte McCurdle, 6 Wall. 318; Ex parte Caldwell, 138 Fed. Rep. 488. See also In re Heff, 197 U. S. 488; In re Levitt, 117 Fed. Rep. 448; In re Burkirk, 72 Fed. Rep. 14.</p>

■ CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. • This writ of certiorari was allowed to review an order of-the Circuit Court of Appeals affirming a decree of the District Court in favor of Staake, as trustee in bankruptcy of the estate of Chester R. Baird, bankrupt, subrogating him to the rights of certain creditors, and authorizing him to enforce their attachment liens with like force and effect as the attaching creditors, one of which was the First…

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA.</p> <p>The writ of error - in this case brings before this court a judgment of conviction of murder, rendered in the Circuit Court of the United States for the Eastern District of North Carolina.</p> <p>The plaintiffs in error were indicted at the fall term, 1905, of the United States District Court for the Eastern District of North Carolina, Wilmington -Division, for the murder, by shooting, on the twenty-eighth day of October, 1905, of E. R. Rumill,- captain; John T. Hall, mate; John Falbe, cook; C. L.' Smith, engineer, and John S. Coakley, seaman, committed on the high seas and within the jurisdiction of the court wherein the indictment was found, and on board of the American vessel called the Harry A. Berwin. The indictment alleged that after the.shooting the deceased were thrown into the sea. Upon the trial of the plaintiffs in error in November, 1905, in the United States Circuit Court for the Eastern District of North Carolina, to which court the indictment had been duly transferred for -trial, they were convicted of the murder of the first four named in the indictment. The court-told the jury that the defendants were not charged with killing Coakley, and if charged in the bill there was no evidence to support the charge.</p> <p>There is no question made as to the sufficiency of the indictment or of the jurisdiction of the court.</p> <p>It appeared on the trial that the plaintiffs in error were part of the crew, and, together with one Henry Scott, who was also one of the crew,' were the only living persons found on the Berwin, when they were arrested by the crew of a small boat, that was put off from a schooner called the Blanche'H. King, Which was then proceeding on a voyage up the coast from Brunswick,' Georgia, to Philadelphia, Pennsylvania, and had arrived at a point about thirty-two miles southwest from Cape Fear bar. The attention of Captain John W. Taylor of the schooner was directed about nine o’clock in the evening in the month of October, 1905, to a vessel just ahead of him, on account of the manner in which she was carrying her lights, and because she was right in the track of his own vessel. He sent a small boat, manned by several seamen, to the vessel (which proved to be the Berwin), and the boat brought back the plaintiffs in error and Scott, who, on being brought to the deck of the vessel and telling their story, were put in irons by direction of the captain, who then steered his vessel for the nearest port, which was Southport, ¡North Carolina, where the men were delivered to the Federal authorities. Upon the trial of the indictment which' was found against the plaintiffs in error, the man Scott was.called as a witness, and swore to the murder by the plaintiffs in error while the' vessel was at sea, and on or about October 28, 1905.</p> <p>Scott was subsequently indicted alone for the murders, and was also convicted, the plaintiffs in error being witnesses against him, and they testified that he committed the murders. He has been reprieved by the President, so that he may be again used as a witness against the plaintiffs in error, in case of a new trial being granted to them.</p> <p>If the English practice with respect to challenges was ever adopted in this country, it was not applicable after the passage of the acts of March 3, 1865, and June 8, 1872, in the United - States courts. United States ■v. Butler, 1 Hughes, 457; Seely v. State, 1 Georgia, 213.</p> <p>The practice in North -Carolina does not govern in the Federal courts under the crimes act. United States v. Shackelford, 18 How. 588.</p> <p>' The cross-examination was allowed upon subjects in no way connected with the examination-in-chief and the accused was prejudiced by the attempt to impeach his character. Greenleaf on Evidence, §445; Fitzpatrick v. United States, 178 U. S. 304.</p> <p>So long as the cross-examination is carried on with reasonable fairness, to test the credibility of the witness, it is permissible, but the moment questions are asked concerning facts touching the witness’s character, which are irrelevant to the facts in issue, for any other purpose than to affect his credir bility or which manifestly do not bear on the subject of credí-. bility, the right of cross-examination is abused, and on objection should be restrained within legitimate limits. Buel v. State, 104 Wisconsin, 132. See also Baüy v. State, 67 Mississippi, 133; State v. Carson, 66 Maine, 116; People v. Pinkerton, 78 Michigan, 110; State v. Gotfreedson, 24 Washington, 398; State v. Hale, 156 Missouri, 102; Saylor v. Commonwealth, 97 Kentucky, 184; Nix v. State, 74 S. W. Rep. 764; Thompson on Trials, § 653; Bullock v. State, 65 N. J. L. 557; State v. Barker, 68 N. J. L. 19.</p> <p>The latitude of cross-examination in North Carolina seems to be broader than in most other jurisdictions in America, State v.. Pancoast, 35 L. R. A. 518, 519, and yet in State v. Traille, 121 N. Car. 674, it is definitely stated that such questions as those which were put to Adams on cross-examination must be confined solely to contradiction or impeachment and are not to affect the guilt or innocence of the accused.</p> <p>It is error to allow the cross-examination of an accused who has taken the stand in his own behalf which could serve no other purpose than to prejudice him before the jury. Allen v. United States, 115 Fed. Rep. 3; Howard v. People, 96 Illinois, 492; Gifford v. People, 83 Illinois, 210; Buel v. State, 104 Wisconsin, 132; People v. Molineaux, '62 L. R. A. 345, 347, notes. Even if such questions which had been put to Adams on cross-examination were answered in the negative, it is still error to allow the questions to be propounded. Bates v. State, 60 Arkansas, 450; Gale v. People, 26 Michigan, 161; People v. Wells, 100 California, 459. It can hardly be controverted that any other witness would not be allowed to testify as to the matter concerning which Adams was cross-examined. Smith v. United States, 161 U. S. 85. See also Morrison v. Pettybone, 87 Fed. Rep. 320.</p> <p>The words of the district.attorney complained of were prejudicial to the defendants and the comments of the court only served to disparage counsel for defendant in the minds of the jury.</p> <p>The right of the prosecution to stand jurors aside temporarily has always been widely recognized. It originated with the Statute of 33d Edw. I, which took away the unlimited peremptory ■challenges by the Crown and required the prosecution to challenge for cause, although the cause need not be shown until the panel was gone through. If the panel is exhausted, before the jury is complete, jurors set aside must be called and must serve unless challenged .by either- side. United States v. Marchant, 12 Wheat. 480; United States v. Wilson, 1 Baldw. 82; United States v. Douglass, 2 Blatchf. 207.; State y. Benton, 19 N. Car. 196. The rule is not changed by the allowance • of peremptory challenge ito the prosecution. Warren v. Commonwealth, 1 Wright, 45; Haine§ v. Commonvjealth, 100 Pa. St. 317; Smith v. Commonwealth, 100 Pa. St. 324; Hudy v. Commonwealth, 128 Pa. St. 500; Commonwealth v. O’Brien,. 140 Pa, St. 555; State y. McNinch, 12 S. Car. 89; State v. Stephens, 13 S. Car. 285.’ The principle has been firmly established in North Carolina from an early day. State v. Craton, 6 Ired. 164; State v. Arthur, 13 N. Car. 217; Stale v. Benton, 19 N. Car. 196; State v. Bone, 52 N. Car. 121; State v. Jones, 88 N. Car. 1671; State v. Gooch, 94 N. Car. 982; State v. Hensley, 94 N. Car. 1021; State v. Sloan, 97 N. Car. 499. The Federal practice in this respect should conform to state law. United States v. Shackleford, 18 How. 588; Lewis v. United States, 146 U. S. 370, 379; Pointer v. United States, 151 U.. S. 396, 407.</p> <p>The rule is reasonable and is subject to the discretion of the court to prevent the right from being exercised unreasonably. It was not exercised unreasonably in this case; defendants were in no way prejudiced; neither the Government nor the defense had exhausted their peremptory challenges when the jury was impaneled; the prisoners obtained a trial by a fair and impartial jury from those who remained on the panel, which is all they were entitled to. Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, and cases cited; Hayes v. Missouri, 120 U. S. 68, 71; Brown v. New Jersey, 175 U. S. 172, 175.</p> <p>The challenge to the array came'too late. Such objections must be made before the jury is impaneled. United States v. Butler-, 1 Hughes, 457; Gropp v. People, 67 Illinois, 154; Mueller v. Rebhan, 94 Illinois, 147; Goodman v. Goetz, 36 N. Y. 731; Jackson v. State, 4 Tex. App. 292; State v. Douglass, 63 N. Car. 500; In cases where jurors have been summoned irregularly it has been held that challenge to the array is not tenable where there was a plea of not guilty, where defendants have not exhausted their peremptory challenges, and where no positive injury has resulted. United States v. Cornell, 2 Mason, 91; Commonwealth v. Seybert, 4 Pa. Co. Ct. Rep. 152; Goodland v. IjeClair, 78 Wisconsin, 176; People v. Burgess, 153 N. Y. 561; Wilhelm v. People, 72 Illinois, 468; People v. Madison Co., 125 Illinois, 334; State v. McElmurray, 3 Strobh. L. (S. Car.) 337; Franklin v. State, 34 Tex. App. 89; State v. Clyburn, 16 S. Car. 375; State v. Price, 10 Rich. (S. Car.) 356; State v. McQuaige, 5 S. Car. 429.</p> <p>The court performed its whole duty in the matter of the objectionable remarks of the district attorney by interposing and admonishing him. 1 Thompson on Trials, § 964; Graves v. United'Stales, 150 U. S. 118; Hall v. United States, 150 U. S. 76. There aré many cases showing the indulgence extended by courts to extravagant declamation and exaggeration by counsel in argument, and the rule is clear that to .justify reversal the remarks must be plainly improper and of a material character. Cross y. State, 68 Alabama, 476; Pier-son v. State, 18‘Tex. App. 524; House v. Stale, 19 Tex. App. 227; Shuler v. State, 105 Indiana, 289; State v. Griffin, 87 Missouri, 608; Polin v. State, 14 Nebraska, 540; Combs v. State, 75 Indiana, 215; State v. Stark, 72 Missouri, 37. See also State v. Horner, 139 N. Car. 606.</p> <p>The cross-examination of defendant Adams was proper on either of these grounds: it was clearly within the scope of the., direct examination; if tended to impeach his veracity, and to show general bad character. A defendant in his witness character is on the same footing-as any other witness. While in general the cross-examination of a defendant witness in a criminal- case is restricted to the matter of the examination-in-c'hicf and to matter affecting his credibility, there are authorities to the effect' that a witness who is a party subjects himself to especial latitude in cross-examination, the course and extent of such cross-examination being committed to the control of the court in the exercise of a sound discretion, which is not- reviewable on appeal. The rule appears to be applicable, both in civil and criminal cases. Storm v. United Stales, 94 U. S. 76; Rea- v. Missouri, 17 Wall. 532y Davis v. Coblens, 174 II. S. 719; Blitz v. United States, 153 U. S. 308; Allen v. United Slates, 115 Fed. Rep. 3, 11. The decisions are conflicting throughout the many jurisdictions in the United States, but the weight of authority commits the control and scope of cross-examination to the discretion of the court, and permits a witness to be impeached on cross-examination, always by questions going to his veracity, generally by questions directed at his reputation ,in allied respects, often by general character,' and sometimes by specific instances of misconduct. 2 Wigmore on Evidence,'§§ 889-891, 922-924; see also §§ 983, 987; vol. 3, § 2277; State ■ v. Pancoast, 35 L. R. A. 518, 527, 533. The law of North Carolina admits great latitude on cross-examination; bad character may be shown, and specific instances of miscondúct. State v. Efler, 85 N. Car. 585, citing State v. Boswell, 2 Dev. 209; State v. O’Nealc, 4 Ired. 88; State v. Dove, 10 Ired. 469; State v. Parks, 3 Ired. 296; State v. Thomas, 98 N. Car. 599; see also State v. Stallings, 2 HayW. 300; and the law in that State is important antb persuasive, if not controlling. Fitzpatrick v. United Slates, Í78 U. S. 304.</p> <p>But there are two reasons why the cross-examination here docs not constitute reversible error: the answers to the particular questions were all in the negative, and were Conclusive on the prosecution. State v. Pancoast, 35 L. R. A. 533, citing Rice on Ev. § 222. See also People v. Jackson, 3 Park. Cr. 391; Oxier v. United States, 38 S. W. Rep. 331; Newcomb v. Griswold, 24 N. Y. 298; l.Starkie bn Ev. 190. Counsel did not follow their objection to the questions by requesting the court to charge the jury, if the testimony were admitted, that it could only be considered by them on the question of veracity; defendants must be held to haVe waived further objection by not taking this course, and the court was not- bound to give instructions upon that particular: question since they were not requested. Commonwealth v. Kneeland, 20 Pick. 206, 222; Hodge v. Stale, 85 Indiana, 561; Powers v. State, 87 Indiana, 144, 153; Edwards v. State, 47 Mississippi, 581, 589; 2 Thompson on Trials, §§2339, 2341, 2343.</p>

Held: by this court in reversing the judgment on the merits: While reformation of. the contract is not an incident to an action at law; and can only be granted in equity; under § 1 of the act of.March 3,' 1887, 24 Stat. 505 , thé Court of Claims has jurisdiction to reform a contract, and of the money claim under the contract as it should have been drawn. ■ On the evidence in this case there was no mutual mistake…

<p>PETITION FOR A WRIT OF HABEAS CORPUS.</p> <p>The petitioner was convicted in the District Court for the District of Nebraska on an indictment charging that he did “wrongfully and unlawfully introduce into Indian country, to wit, into and upon the Winnebago" Indian Reservation, a res- ■ ervation set apart for the exclusive use and benefit of certain tribes of the Winnebago Indians, certain spirituous, vinous, malt and other intoxicating liquors."</p> <p>Upon this conviction he was sentenced to pay a fine of $100 and the costs of prosecution and to be imprisoned in the jail of Douglas County, Nebraska, for the term of sixty days and until said fine and costs were paid. The imprisonment commenced on February 19, 1906. Without pursuing his remedy by writ of error the petitioner on April 2, 1906, filed in this court his application for a writ of habeas corpus, alleging that the United States has no police power or jurisdiction over the Winnebago Reservation, and that the law under which the indictment was drawn is unconstitutional and void in so far as it applies to the said Winnebago Reservation, and that "the United States District Court was wholly without jurisdictioñ in the premises. The indictment was found under the act of Congress of January 30, 1897. 29 Stat. 506. April 30, 1906, the case was submitted on petition, return and a stipulation of facts.</p>

This was a petition under wbat is known as the Tucker Act, defining the jurisdiction of the Court of Claims, to recover salvage upon the duties on 1,883 bags of sugar, cargo of the lighter Bangor.

In June,. 1898, Philip A. Tracy died in the city of Washington, where he was domiciled. His will,, executed in Washington on March 2, 1894, was duly probated in August, 1898. The will directed the executors to build a family monument, to cause to be inscribed thereon the names and the dates of the birth and death of the deceased, of his father and mother and of a brother and sister, in accordance with minute directions contained in a memorandum accompanying the.will.

Held: in an opinion by Brewer, J., that the plaintiff was not entitled to recover. It is true that the only question discussed in the opinion was, whether or not the interstate act superseded the Texas statute, which prohibited a common carrier from charging or collecting from the owner or consignee of freight a greater sum than that specified in the bill of lading, and this question was decided in the affirmative. . . .

<p>A .writ of error having been dismissed, after full argument, as being a moot case, on .mistaken assumption of fact justified by the record, and the petitions for rehearing showing facts on which substantial relief can be granted the application for rehearing is allowed and the case decided on the merits on the arguments already made.</p> <p>A State has the power to prevent a foreign corporation from doing business at all within its borders unless such prohibition is so conditioned as to violate the Federal Constitution, and a state statute which, without requiring a foreign insurance company to enter into any agreement not to remove into the Federal courts cases commenced against it in the state court, provides that if the company does so remove such a case its license to do business within the State shall thereupon be revoked is not unconstitutional. Doyle, v. Continental Insurance Co., 94 U. S. 535, followed and held not to bo overruled by Barron v. Burnside, 121 U. S. T86, or any other decision of this court.</p>

<p>The absence of a formal order by the court need not necessarily prevail over its essential action.</p> <p>Where appellant’s only assignment of error on an appeal from the Supreme Court of a Territory is that the court had not acquired jurisdiction of the property in that suit because it was in its custody in another suit in which a receiver had been appointed,'and the receivership had not been extended or the actions consolidated, but the record clearly shows that the District Court considered the cases as consolidated and empowered the receiver appointed in the first suit to sell the property and apply the proceeds as directed in the second suit, and that such decree was ; affirmed by the Supreme Court of the Territory and by this court, the assignments are without foundation and the decree will be affirmed.</p>

<p>The mere claim in objections to confirmation of. a rule in a proceeding in the County Court to confirm an assessment for paving a street that the act under which the assessment was made was unconstitutional as depriving the objector of his process of law, never afterwards brought to the attention of the trial court or of the Supreme Court of the State, is not a sufficient compliance with § 709, Rev. Stat., in setting up a right ' under the Constitution of the United States to give this court jurisdiction to review the judgment on writ of error.</p> <p>According to the practice of Illinois an error not assigned is not open to review in the Supreme Court of the State, and if assigned but not noticed or relied on in the brief or argument of counsel it will be regarded as waived or abandoned, and this court will recognize that rule of practice.</p> <p>It is too late to raise the Federal question by a statement in the writ'of error and petition for citation that constitutional rights and privileges were involved and decided by the highest court of the State against plaintiff in error, even if the Chief Justice of that court allowed the writ.</p>

<p>WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. ’</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. A contract binding under the statute of frauds may be gathered from letters, telegrams and writings. Beckwith v. Talbot, 95 U. S. 289; Ryan v. United States, 136 U. S. 68; Bibb v. Allen, 149 U. S. 481. The contract is presumptive evidence .of''a consideration, and the burden of showing a want of consideration is upon the party seeking to avoid it. Ok,/Statutes of 1893, § 815. .

Held: liable for any of the debts of the firm. • A national bank which has taken such shares in satisfaction of a debt is not estopped either from denying that it was a partner or that it is liable for the debts of the firm. The facts are stated in the opinion. Mr. W. C. Herron for plaintiff in error: This’coürt has jurisdiction under a similar ruling in California Bank v. Kennedy, 167 U. S. 362 .

The facts are stated in the opinion. The purpose of Congress, clearly expressed in section 2899, Revised Statutes, is that all imports shall be held pending examination, except when the collector, upon the owner’s request, may decide, that sample packages can. be relied on to reveal the nature of all.

, that “an adjudication by the highest court of a State that certain proceedings before a Mexican tribunal prior to the treaty of Guadalupe Hidalgo were insufficient to effect a partition of a tract of' land before that time granted by the Mexican Government to three persons who were partners, which grant was confirmed by commissioners appointed under the provisions of the act of March 3, 1851, 9 Stat. 631 , to ascertain and settle the private land claims in the State of…

The facts are stated in the opinion. While the amount involved is not sufficient to give the court jurisdiction, there is a bona fide question based on the Federal law involved. Sec. 44 of the Civil Code was adopted by the Foraker Act and became in effect an act of Congress. United States v. Simms, 1 Cr. 252; Kendall v. United States, 12 Peters, 524; McCracken v. Hayward, 2 How. 608; Glboe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.</p> <p>The facts are stated in the opinion.</p> <p>The United States was not a party to nor interested in the proceedings set forth in the indictment. Inhabitants v. Smith, 11 Mete. (Mass.) 390; McGrath v. The People, 100 Illinois, 464; Evans v. Eaton, 7 Wheat. 356; State v. Sutton, 74 Vermont, 12; Foreman v. Marianna, 43 Arkansas, 324; Taylor v. Commissioners, 88 Illinois, 526; Railroad Company v. Kellog, 54 Nebraska, 138; Sauls v. Freeman, 24- Florida, 209; Bowman’s 76; Case, 67 Missouri, 146; United States v. Wiltberger, 5 Wheat. United States■ v. Sheldon, 2 Wheat. 119; United States v. Morris, 14 Pet. 464; United States v. Clayton, 2 Dill. 218.</p> <p>The indictment states no facts showing the pendency of any proceeding in the Postal Department. United States v. Hess, 124 U. S. 483; Post v. United States, 161 U. S. 583; Virginia v. Paul, 148 U. S. 107; American School &c. v. McAnulty, 102 Fed. Rep. 565; Dauphin v. Key, 11 D. C. App. 203; Enterprise Savings Assn. v. Zumstein, 64 Fed. Rep. 837; aff’d S. C., 67 Fed. Rep. 1000.; Bates & Guild v. Payne, 194 U..S. 106; Public Clearing House v. Coyne, 194 U. S. 497; United States v. Ju Toy, 198 U. S. 253; United States v. Eaton, 144 U. S. 677; Caha v. United States, 152 U. S. 211.</p> <p>There was a former indictment and trial for and acquittal of the offense. Placing the defendant on trial again for the offense alleged was in violation of the Sixth Amendment. Baldwin v. Bank, 1 Wall. 234; Mechanics’ Bank v. Bank, 5 Wheat. 236; Ford v. Williams, 21 How. 289; Navigation Co. v. Merchants’ Bank, 6 How. 381; Commercial Bank v. French, 21 Pick. 486; Dugan v. United States, 3 Wheat. 172. Cases in 2 Daniel on Negotiable Instr., 1st ed., §§ 1187-1189. State v. Cooper, 13 N. J. Law, 361; Hurst v. State, 86 Alabama, 604; Cooley, Const. Lim., 7th ed., 470; People v. McGowan, 17 Wend. 386; Monroe v. State, 111 Alabama, 15; United States v. Lee, 4 Cranch C. C. 446; Ball v. United States, 163 U. S. 662; United States v. Nickerson, 17 How. 204; Mitchell v. State, 42 Ohio St. 384;- Campbell v. State, 9 Yerger, 333; State v. Martin, 30 Wisconsin, 216; Stuart v. Comm., 28 Graft. 950; Gunther v. People, 24 N. Y. 100; Morris v. State, 8 S. & M. 762; Stale v. Kattleman, 35 Missouri, 105; Stale v. Kibble, 2 Tyler, 471; Dcaly v. United, Slates, 152 U. S. 539.</p> <p>'There was no evidence to go to the jury that Burton made any agreement 1o receive compensation for services to prevent the issuance; of a fraud order. Whatever agreement was made to receive compensation from the Rialto Grain and Securities Company for services, such agreement was not made in the State of Missouri, and the defendant was deprived of his constitutional right to be tried in the State and District where the agreement was made, contrary to § 2, art. Ill, of the Constitution and of the Sixth Amendment thereof. Tayloe v. Merchants’ Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 411; 12 Ency. Law and Prac. 239, 240; Burr’s Case, Marshall’s Const. Dec. 82,165; Palliser v. United States, 136 U. S. 256; Homer v. United States, 143 U. S. 212; Sands v. State, 26 Tex. App. 580; United States v. Fowkes, 53 Fed. Rep. 13; United States v. Dietrich, 126 Fed. Rep. 664; EKason v._Henshaw, 4 Wheat. 225; National Bank v. Hall, 101 U. S. 43; Railway Co. v. Rolling Mills,. 119 U. S. 151; Chitty on Contracts, 11 Am. ed., p. 15, note /; Christian Co. v. Bienville Co., 106 Alabama, 124; Tennessee Co. v. Pierce, 81 Fed. Rep. 814; Seitz v. Brewers’ &c. Co., 141 U. S. 510.</p> <p>The agreement of the defendant with the Rialto Company was for service by the month, and no service in the Department having been rendered during the period covered by the payment made March 26, there was no offense in the receipt of that payment. Davis v. Preston, 6 Alabama, 83; Matthews v. Jenkins, 80 Virginia,. 463; La Coursier v. Russell, 82 Wisconsin, 265; Benedict v. United States, 176 U. S. 357; In re 'Hans Nielsen, 131 U. S. 188.</p> <p>The defendant was not subject to trial and punishment as for separate offenses in agreeing to receive and receiving compensation for the services charged in the indictment to have been rendered by him. 2 Bishop’s New Criminal Procedure, §55; 1 Bishop’s New Criminal Procedure, § 436; State v. Jones, 106 Missouri, 802.</p> <p>The juror William V. Jones was disqualified because he had formed and still retained an opinion as to the guilt or innocence of the defendant, an opinion which was the result of reading the reports of the former trial, which reports he believed to be true, and the challenge to him should have been sustained. Lewis v. United States, 146 U. S. 370; Williams v. United States, 93 Fed. Rep. 396.</p> <p>The letters of Houts, Evans, Allen, Warner'-and Fravel, and the accompanying circulars and booklets, all of which were read in full, to the jury, were incompetent and irrelevant as against the defendant, as he had no knowledge of them whatever, and their contents were not necessary to show the fact that some matter was pending in the Department against the Rialto Grain and Securities Company. Tappan v. Beardsley, 10 Wall. 427.</p> <p>The endorsements on the jacket subsequent to March 26, 1903, the report of Inspectors Price and Piatt of August 20, 1903, and the letter of Assistant Attorney General Robb of September 9, 1903, were competent and material evidence for defendant to disprove the charges of the indictment that he had agreed to induce and had in fact induced the Postmaster General to issue no fraud order against the company and to stop investigation of it, and also to show that the investigation being' made by the Department was with reference to the indictment and prosecution of the officers of the Rialto Company.</p> <p>The evidence of .Francis C. Hubner should have been stricken out, as it established nothing and permitted the jury to conjecture that there had been an interview between the defendant and the Assistant Attorney General for the Post Office Department relative to the affairs of the Rialto Company.</p> <p>The instruction of the court as to what would constitute service by the defendant in the Department is not responsive to the charge of the indictment, and authorizes a conviction on account of matters not alleged in the indictment, and said charge is erroneous in other respects. The court also erred in refusing to give instructions -asked by defendant. Flachskanm v. United, States, 127 Fed. Rep. 674.</p> <p>The court at St. Louis had no jurisdiction to try counts three and seven, nor is such jurisdiction conferred by § 731, Rev. Stat. The District of Columbia is not a “judicial circuit” or “judicial district” within the meaning of §'731.</p> <p>The act of 1864, Rev. Stat. § 1782, under which the indictment was found, is unconstitutional. It is in conflict with the. fundamental idea on which our whole Federal Government is founded, viz: that the Federal Government is a government of limited powers, with duties defined and restrictions imposed, and no authority is lodged anywhere to change those duties or restrictions, except the power reserved by the people.</p> <p>.The framers of our Government, in order to prevent the concentration of power into the hands of one man or one body of men, created three departments, — not necessarily to work in harmony together, but each to act wholly independent of the other. It was the intention, as shown by the debates in the constitutional convention and the Constitution itself, to establish an impassable gulf separating these three great departments of the Federal Government. One department shall not encroach upon or in any way coerce the other. To that end there should be no blending of governmental functions, except where it was absolutely necessary, and then the Constitution clearly and zealously guarded the independence of each department, thus emphasizing the basic principle that the great powers of government were so eternally separated each from the other that there could be no conflict between them. The legislature should make, the judiciary interpret, and the executive should administer, the laws.</p> <p>The President, the members of Congress, and the judges of the Supreme Court are the only officers of the Federal Constitution. All other officers of those several departments aré creatures of the legislature, or what this court has styled congressional officers, as' distinguished from constitutional officers. The office of the legislative official may be enlarged, modified or abolished by Congress. This is not true of a constitutional office. It is permanent, fixed, and above and beyond the control of Congress. It is also above and beyond the power of the Executive or Judicial Departments, It gets its life from and can only be changed by the Constitution.</p> <p>Every citizen, be he official or in private station, is alike amenable to the law, but the constitutional official, acting as an official., cannot be called to an account, or punished for any official act, except in the mode as defined and prescribed in the Constitution creating him. The recognition of this principle is absolutely necessary to protect him in his independence as an official, and to protect the great constitutional bodies in their independence.</p> <p>The Constitution .defines how the President, a member of this court, and a member of Congress can be punished for any official misconduct, and by such constitutional provisions limits the manner of punishment; and Congress has no power to add to or take from the express provisions so made for that purpose. The denial of this proposition would place it in the power of Congress to destroy the independence of each Department, and nullify the' Constitution, and that is just the effect of the law under which this prosecution is brought.</p> <p>A member of Congress may .be punished in such manner as each House may determine as to its “own members,” and the right to-expel extends to all cases where the offense is such as, in the judgment of “each House,” is inconsistent with the trust and duty of “its own members.”</p> <p>It would be an anomaly in a constitutional government, with three coordinate branches of such government, as created by the Federal Constitution, if the legislative branch, under whatever pretext, could enact a law making any act of the President, or any act of a Justice of the Supreme Court, a misdemeanor, and delegate the jurisdiction and power to an inferior judicial tribunal to try the President, or a Justice of this court, for a violation of such law, and subject him to fine, imprisonment and removal from office as the result of a verdict of a jury. The mere statement of the proposition would seem to be sufficient to condemn'it as absurd, and the shield of the Constitution is no greater protection for the President, ■ — for the Justice of the Supreme Court,' — than for the Senator,^ — each and all of whom are created by the Constitution.</p> <p>The Government of the United States is one of enumerated powers, — The national constitution being the instrument which specifies them, — and in which authority should be. found for the exercise of any power which the National Government assumes to possess. Cooley, Const. Lim., 7th ecL, 11; Martin v. Hunter’s Lessee, 1 Wheat. 304, 343; Ablentan v. Booth, 21 How. 519.</p> <p>By the Constitution, there has been delegated express power to each House to punish its own members, in such manner as, in its wisdom, is just and proper, and, by “ the concurrence of two-thirds, may expel a member.” When the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied, prohibition against legislative interference to add to the condition, or to extend the penalty tó other cases. Cooley, Const. Lim., 7th ed., 99; Lowe v. Commonwealth, 3 Met. (Ky.) 241; Falloon v. Clark, 61 Kansas, 127; Brown v. Grover, 6 Bush. (Ky.) 3; Thomas v. Owens, 4 Maryland, 190; Commonwealth, v. Williams, 79 Kentucky, 42; Sheehan v. Scott, 145 California, 684. See also- Morris v. Powell, 125 Indiana, 287; McAfferty v. Guyer, 58 Pa. St. 109.</p> <p>The act of 1864 superadds disqualifications to those- expressly contained in the Constitution, and'prescribes a mode of procedure and a punishment not expressly authorized by the Constitution, or conferred by necessary implication. Indeed, the express power conferred is an implied prohibition against the exercise by Congress of that most extraordinary legislation, — the basis of this prosecution.</p> <p>No legislation is appropriate which should conflict with the implied prohibitions upon Congress. They are as obligatory as the express prohibitions. Ex parte Virginia, 100 U. S. 361.</p> <p>When Senator Burton was chosen Senator of the United States, he was chosen for six years. He had all of the qualifications prescribed by the Federal Constitution. He was only required to consult the organic laws as to his duties and obli- . gations as a Senator. He had the constitutional right to hold the office for six years, subject only to the delegated, enumerated and express power of the Senate to expel him, and subject to the disqualifications provided in section 6, article II, of the Constitution.</p> <p>The act of 1864 applies only to the conduct or. action of the Senator, as contradistinguished from the conduct or action of the citizen. It is a limitation and restriction upon the conduct and action of the Senator during his term of office, nowhere in the Constitution, expressly or by necessary implication, conferred upon Congress to create. The Senate, by and through the power delegated to it by the Constitution, might properly expel for doing of the things charged in the indictment, as a violation of senatorial dignity, but Congress had no power, by enactment, to make such acts and conduct of the Senator a crime, and delegate to the Judiciary the power to take from the Senator the rights and privileges guaranteed by the Constitution. The judgment of conviction not only imprisons him, but disqualifies him from holding the office for which he was chosen by the State of Kansas, for “six years.” United States v. Harris, 106 U. S. 636; 1 Story on Const. § 833; 1 Kent’s Com. 235; People v. Hall, 80 N. Y. 121.</p> <p>The act of 1864, and section 5, article I, of the Constitution, are wholly incompatible, and in irreconcilable conflict. It cannot be that the framers of the Constitution intended, by express grant, to confer upon each House- the power to be the sole judge of the qualification of its own members, and, by implication, to confer the power upon both House and Senate, by concurrent action, by statute, to disable .and disqualify each House from exercising the powers thus expressly conferred.</p> <p>In all of the debates in the .constitutional convention, such a contingency was not considered. Evidently by the express grant conferred by the Constitution, the intention was to lodge the power in each Plouse, to the exclusion of the other.</p> <p>The identical question was decided by Mr. Justice Brewer, when on the supreme bench of Kansas, in the case of State v. Gilmore, 20 Kansas, 554, in which was under consideration a section of the constitution of the State óf Kansas,, exactly similar to the first clause of section" 5, article I, Constitution of the United States. See also State v. Tomlinson, .20 Kansas, 703; Robertson v. State, 109 Indiana, 92; State v. Baxter, 28 Arkansas, 129.</p> <p>It is well settled that section 5, article I, providing that “Each House shall be the judge of.the elections, returns and qualifications’ of its own members,” confers upon “each House” powers of a judicial nature, — in the exercise of which its decision is conclusive, and not subject to review by .the courts. People v. Mahoney, 13 Michigan,. 482; Dalton v. State, 43 Ohio St. 680. Wherever the Constitution has prescribed the qualifications of electors, they cannot be changed or added to by the Legislature, or otherwise than by an amendment of the Constitution. .Cooley, Const. Law, 5th ed., 753; Allison v. Blake, 57 N. J. L. 8, 11; Kimball v. TIendee, 57 N. J. L. 207.</p> <p>The act of 1864 uses the words “under the Government of ’ the United States. ” The Senate is a part of the Government of the United States. Section 1, article I, of the Constitution; section 3, article I.</p> <p>The office of Senator is one of “ profit, ” under the Government of the United States. Section 6, article I, Constitution.</p> <p>A State cannot superadd qualifications of a Senator to t.hosé prescribed by the Constitution of the United States. In re Trumbull, Taft Elec. Cases, 148.</p> <p>If the Senator is a state officer, and the act of 1864 is constitutional, then Congress would have the power to make the same applicable to the Governor of each sovereign State and tins cannot be done. Kentucky v. Dennison, 24 How. 107.</p> <p>If, therefore, a Senator is not an officer of the United States in the sense of the Constitution, clearly he may not be coerced, •or punished for his refusal to obey the requirements of an act of Congress relative to the discharge of his duties as United States Senator. United States v. Germain, 99 U. S. 510; United States v. Mouat, 124 TJ. S. 307; U7iited States v. Smith, 124 TJ. S. 532; In re Greene, 134 U. S. 377; McPherson v. Blacker, 146 U. S. 35, 36. .</p> <p>The power of “each House” to judge of the qualifications of its own members, and to establish trules for its proceedings, — to punish members, and, “with the concurrencevof two-thirds, ” expel a member, is not strictly speaking a legislative, but a judicial function, and, unless the act of 1864 can be said to be “necessary and proper for carrying into execution” these functions, it is manifestly unconstitutional. Mr. ' Madison, The Federalist, vol. 1, p. 273, No. 48; Marbury v. Madison, 1 Cranch, 391; 1 Tucker on Constitution, 368.</p> <p>The nature of the implied power exercised as a means must be legitimate; in other words, no power will be implied as a means to 'an end which is not legitimate; that is, not within the powers granted by the Constitution. The ancillary legislation must be a necessary and proper means to accomplish an end which is clearly constitutional. See Anderson v. Duan, 6 Wheat. 233.</p> <p>. The express power conferred excludes the idea of any implied power not necessary and proper for carrying into execution the express power.</p> <p>There is still another view of the act of 1864 which would seem to be an unanswerable reason to sustain the contention that it is unconstitutional. It did not require the concurrence of two-thirds of either or both Houses to pass it. It might become a larv with the consent of a bare majority.of each House. While the act does not in terms provide for forfeiture of office, or expulsion, it requires a judgment, upon conviction, that the person convicted shall be “rendered forever' thereafter incapable of holding any office of honor, profit or trust' under the government of the United States.” The effect of the judgment, if the act is valid, is to expel the Senator from the Senate. Lowe v. Commonwealth, 3 Mete. (Ky.) 241; • 1 Tucker on Constitution, 429.</p> <p>By the act of 1864 Congress accomplishes a result which the Senate may only do “with the concurrence of two-thirds;” and by an act which is not consistent with the letter and spirit of the Constitution. See also Von Holst, Constitutional Law, 102.</p> <p>The act of 1864 defines a political offense. ' It is not an attempt to control the conduct of the citizen, but that of the Senator. See Story- on Constitution, § 797.</p> <p>The plea in bar was not well taken. Count three of the . former indictment charged receipt from Mahaney, whereas counts three and seven of the present indictment charged receipt from the corporation. But the effect of granting a new trial at the defendant’s instance was to nullify entirely the proceedings at the former trial, including the verdict of acquittal on the third count. Trono v. United States, 199 U. S. 521.</p> <p>No error was committed in limiting the number of peremptory challenges to three ; under § 819, Rev. Stat. Congress, having power to do so, denominated the offenses defined by § 1782, R. S., misdemeanors. Bannon v. United States, 156 U. S. 454; Reagan v. United States, 157 U. S. 301; Considine v. United States, 112 Fed. Rep. 342; S. C., 184 U. S. 699; Jewett v. United States, 100 Fed. Rep. 832; Tyler v. United States, 106 Fed. Rep. 137, 138; United States v. Coffersmith, 4 Fed. Rep. 198; United States v. Daubner, 17 Fed. Rep.794.</p> <p>It not appearing that defendant exhausted his three challenges, he cannot therefore complain. Insurance Company v. Hillman, 188 U. S. 208, 211; State v. Fournier, 68 Vermont, 262, 266; Allenv.Waddill, 26 S. W. Rep. 273; United Stales v. Marchand, 12 Wheat. 480; Hayes v. Missouri, 120 U. S. 68,71.</p> <p>There was sufficient evidence to go to the jury, the present record containing' additional evidence to that presented on -the former, trial. The court is not concerned with its conclusiveness.</p> <p>The unlawful agreement was made at St. Louis, where Burton’s offer was accepted. Taylor v. Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 424; Garrétson v. North Atchison Bank, 47 Fed. Rep. 867; Phenix Ins. Co. v. Schultz, 80 Fed. Rep. 343; Hammond on Contracts, § 42, n. 22.</p> <p>No error was committed in the admission or exclusion of evidence.</p> <p>The charge of the court set the entire case, as presented by the evidence, fairly and substantially before the jury. This was sufficient. Railway Co. v. Whitton, 13 Wall. 270, 290; Tweed’s Case, 16 Wall. 516.</p> <p>The agreement to receive, and the receipt of compensation constituted two offenses. Clure v. United States, 159 U. S. 590, 595; United States v. Rendskopf, 6 Biss. 259; Fed. Cas. 16, 165.</p> <p>Section 1782, Rev. Stat,, does not interfere with the constitutional rights of the Senate or’ of the individual Senator. It prescribes no new qualifications for a Senator, nor does it interfere with the constitutional control of the Senate over him. It merely makes it unlawful for a.Senator to do that which he has no moral nor constitutional right to do.</p> <p>' Senators have no constitutional right to appear for hire and against the interests of the Government before any Executive Department or bureau in any matter in which the United States is interested. In fact, that is plainly inconsistent with their Senatorial duties and obligations. With the performance of their constitutional duties as Senators no act of Congress could properly interfere. But when they forsake those duties and engage m matters plainly in conflict with their official obligations they must be amenable to law like other servants of the Government.</p> <p>The Constitution itself recognizes this amenability of Senators and Representatives. They are privileged from arrest' during' their attendance at the session of their respective Houses in all cases “ except treason, felony, and breach, of the peace. ” Art. I, sec. 6. These words, Mr. Justice Story said, are the same as those in which the privilege of members of the ' English Parliament was expressed, and, as all crimes are offenses against the peace, the phrase “breach of the peace” should be construed in accordance with the parliamentary-rule to extend to all indictable offenses. 1 Story on Const. §865.</p> <p>The provision of section 5 article II Which authorizes each House to compel the attendance of absent members must be construed in the light of the above provision, which recognizes that members may be arrested for crime and the Senate thereby deprived of their attendance.</p> <p>Plaintiff in error concedes that a Senator is not above the law — the criminal statutory law — but says that “Congress has no constitutional power, by legislation, to place any limitations or restrictions upon his official conduct as a Senator.”</p> <p>Section 1782 places no restriction upon the “official conduct” of a Senator. Section 1782 applies to individuals. It is aimed at all persons holding positions of trust or confidence in the service of the United States. The fact that it specifically refers to a Senator cannot invalidate it. A general law against bribery or other crime would, counsel admit, include a Senator. Would the enumeration of Senators among those included in such a law invalidate it?</p> <p>The provision of section 1782 that every person offending against the statute “shall, moreover, by conviction therefor,, be rendered forever thereafter incapable of holding any office of honor, trust, or profit under the Government of the United States,” is not open to constitutional objection. It does not interfere with the authority of the Senate over its members, because the position of Senator cannot be construed to be an office under the Government of the United States within the meaning of that section. Story on Const. § 793.</p> <p>The decisions of this court hold that those only are officers of the United States in a constitutional sense and in the sense in which those words are employed in the statutes, who hold their places by virtue of an appointment by the President or a court of law or the head of a Department. United States v. Germaine, 99 U. S. 508; United States v. Mouat, 124 U. S. 307; United States v..Smith, 124 U. S. 532.</p> <p>There is no distinction between “officers of the United States” and the language of the statute “office under the ' Government of the United States.”</p> <p>If Congress'had intended that the effect of conviction of violating section 1782 should be to unseat a Senator or Representative, it would have said so. Certainly the court will not twist the words used from their usual sense so as to render the statute unconstitutional. Properly read, the statute leaves the status of a convicted Senator as a member of the Senate to the determination of that body. They may or may not expel him, as they see fit. In this respect section 1782 is no different from any other statute. It was surplusage for the court to include this declaration of the statute in its sentence. The disqualification referred to attaches by virtue of the law ' itself .upon conviction.</p> <p>. If the sentence is defective in any respect, opportunity '-should be given to correct it. In re Bonner, 151 U. S. 242.</p>

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

The Commonwealth of Kentucky, by Frank A. Lucas, revenue agent, commenced an action in the County Court of McCracken County to recover from the Ayer and Lord Tie Company alleged omitted state, county and municipal taxes for the years 1899, 1900 and 1901, claimed to be assessable upon two • steamboats and certain barges, and for the year 1901 upon one other steamboat, all the property of the company.

The facts are stated in the opinion. Taxes on land or the profits issuing from lands are taxes in the strict sense of the word: they are direct taxes within the meaning of the constitutional provision respecting the apportionment of representatives and direct taxes, and, therefore, ■ also necessarily, within the meaning of the provision that all bills for raising revenue shall originate in the House of Representatives.

<p>ERROR TO THE UNITED STATES OIROtJTT COURT OR APPEALS FOR THE NINTH CIRCUIT.</p> <p>Action brought in the Circuit Court of the United States for the Ninth Circuit, Southern District pf California, by defendant in error, j'or damages for injuries, received by him in a head-on collision of two trains, on one of which he was an, engineer. The answer alleged negligence upon the part of defendant In error, by disobeying the orders, rules and regulations of thi' company, anti also alleged that the collision was caused by the negligence of a fellow servant. The action was tried without a jury, and the Circuit Court found for defendant in error in the amount of $9,000, and entered judgment against the company for that sum. The judgment was affirmed by the Circuit Court of Appeals. 136 Fed. Rep. 66. The company, being a Federal corporation, then sued out this writ' of error.</p> <p>The colliding trains were regular passenger trains, and are denominated in the testimony as train No. 3 and train No. 4, the former being westbound and the latter eastbound. Defendant in error was the engineer, on No. 4, or rather one of the engineers, the train being hauled by two engines. He was the engineer of the second engine. Both trains were run on regular schedule ór time cards, when on time or slightly delayed, No. 4 having the right of track. On the morning of the collision, November. 20, 1901, train No.'3 was unusually delayed, and special orders became necessary for the operation of the trains on the Arizona division. The first order’was issued before train No. 4 had left Needles. The order was as follows: “No. 3 eng. 482 has right of track over No. 4 eng. 444 and 452 to Needles, but will run 1 hour 50 minutes late Kingman to Needles.”. The copy of the order was delivered to train No. 4 before 4.22 a. m., before its departure from Needles, and to No. 3 upon its arrival at Kingman at 4.21 or 4.22 a. m. Train No. 4 rán east to Mellen, a distance of 11.9 miles, where it stopped upon ..signal. In the meantime the second order (No. 23) was issued by the train dispatcher, train No. 3 having been more delayed in arriving at King-man than had been expected. This order was delivered to train No. 4 at Mellen. It read as follows: “No. 3 eng..482 'will run two (2) hours late Kingman to Needles. ” A, ffopy of the order was delivered to No. 3 at Kingman. The effect of these orders and the general rules of the company was that No. 3 was to run according to the time card, except that it was to run two hours late and was to have the right of track over No. 4, the latter to look out for No. 3, and run with referenee to its movement as provided for by the special orders in connection with the time-table. The orders and the timetable would have made Franconia the proper place of passing of the trains, No. 3 being due to arrive there at 5.17, ,No. 4 at 5.06, or eleven minutes ahead of No. 3. Train No. 3 should have left Kingman at 4.25. It left at 4.31, six minutes late. It passed Yucca, however, at 4.55 (this is disputed, but upon what evidence we shall presently consider), it should not have passed until 4.57and it passed Franconia six minutes ahead of time. The operator at Yucca (the only night telegraph office between Kingman and Franconia) at 4.58 or 59 reported to the train dispatcher that No. 3 had passed at 4.55.</p> <p>No. 4 left Mellen, which was the only night office between Needles and Franconia, between 4.45 and 4.47, and ran 6.8 miles to Powell, arriving-there at 5 o’clock. A stop was made of three or four minutes for the purpose of adjusting the flow of oil in the leading locomotive, and then proceeded towards Franconia. In the meantime No. 3 had arrived at .Franconia six minutes ahead of the schedule time under the special order, for leaving that station. On approaching the station the engineer signalled an inquiry for orders and received by semaphore signal from the operator the reply: “No orders from the train dispatcher. ” He did not stop at Franconia, and while the train was going at a speed of from sixty to seventy miles an hour, about one and one-quarter miles from Franconia it collided with No. 4, which was running from forty to fifty miles an hour. Both trains were wrecked, the engineer of the leading locomotive of No. 4 and several others were killed, and the defendant in error sustained serious injuries. The operator at Franconia had no orders that morning for either No. 3 or No. 4. But for the collision No. 4 would have reached and have been placed on the siding at Franconia, notwithstanding the delay at Powell, two or three minutes before No. 3 was due at Franconia. Plaintiff-in error’s rule No. 385 only requires the train not having the right of track to take a siding and be clear of the main track before the leaving time of the opposing train. Other facts are stated in the opinion. .</p>

The facts are stated in the opinion. The exemption from its general provisions of wines produced from domestic grapes, while in the hands of producers or manufacturers, renders the law obnoxious to the equal protection clause of the Fourteenth Amendment. Intoxicating liquors are recognized by the constitution and laws of Texas as legitimate articles of commerce.

Held: in effect, that they were not, is erroneous. Gas Lt. Co. v.. Hamilton, 146 U. S. 258 ; Norfolk v. Pendleton, 156 U. S. 667 ; Griffin v. Goldsboro (N. Car.), 41 L. R. A. 240 ; Redland v. Redland, 121 California, 365; Matthews v. Bd. of Corf. Comm., 97 Fed.

<p>A suit brought by a Chippewa Indian on behalf of himself and other members of his tribe against the Secretary of the Interior, to enjoin him from executing the act of June 27, 1902, and to compel him to account under the act of January 4, 1889, in regard to sale and disposition of lands, the title to which is still in the Government, is in effect a suit against the United States, and in the absence of any waiver on the part of the Government of immunity from suit, • the courts ■ have no jurisdiction of such a suit.' Oregon v. Hitchcock, 202 U. S. 60 followed; Minnesota v. Hitchcock, 185 U. S. 373 distinguished.</p>

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ALABAMA.</p> <p>The facts are stated in the opinion.</p>

COURT OF CLAIMS. The facts are stated in the opinion. The moneys exacted from the plaintiffs in error and appellants were unlawfully exacted and consequently are still their property. No change of title is operated by illegal seizure. That point is not open to reargument. Warner, Barnes & Co. v. United States, 197 U. S. 419; Dorr v. United States, 195 U. S. 138; Rassmussen v. United States, 197 U. S. 516;.

Held: the District Court had thereafter no power to set aside the decree of January 8, 1862, or to enter the decree of March 13, 1872.

Held: that: The gist.-of the shareholders’ liability is the fraud implied in selling with notice of insolvency and with intent to evade the double liability imposed by § 5139, Rev. Stat. The fact that the sale is made to an insolvent buyer is additional evidence of fraudulent intent but not sufficient to constitute fraud unless as in this case-with notice of the bank’s insolvency.

<p>APPEAL AND CROSS APPEAL PROM THE CIRCUIT COURT OP THE UNITED STATES POR .THE EASTERN DISTRICT OP NORTH CAROLINA.</p> <p>The Southern Railway Company, a corporation organized under the laws of the State of Virginia, operates among others a line of railway passing through Greensboro, North Carolina. At that place the Greensboro Ice and Coal Company, during the times hereafter mentioned, had a coal and wood yard, located some distance from the main track and right of way of the railroad. From this main track, however, there was a private siding or spur track extending across the land of private persons to the establishment of the ice and coal company. In consequence of the views expressed in the opinion it is unnecessary to review the facts as to the construction of this spur track or to detail the course of dealing between the parties concerning it prior to.the origin of tliis controversy. Certain it is that at one time the railroad delivered cars consigned to the ice and coal company from its main track on to the spur track in question. A dispute arose between the .railway company and the ice and coal company concerning demurrage on thirteen cars containing coal and wood consigned to the latter company. In consequence of the refusal of the ice and coal company to pay these charges the railway, on October 12, 1903, notified the ice and coal company that after October 17, 1903, it would only deliver cars consigned to the ice and coal company on the public tracks of the railway company at a place known as the team track, set aside for the delivery to the public generally of merchandise of that character. After receiving this notice the ice and coal company ordered four cars of coal from points in the States of Pennsylvania, West Virginia and Tennessee. These cars reached Greensboro between October 18, 1903, and October 22, 1903, were placed .upon the team track, and delivery was' tendered to the ice and coal company. That company, however, declined to receive or unload the cars elsewhere than on the siding above referred to. An informal complaint on the subject was made by letter on October 20, 1903, to the North Carolina Corporation Commission, composed of the appellants, Franklin McNeill, Samuel L. Rogers and Eugene C. Beddingfield. After conversations had with officers of the railway company, the commission, on October 31, 1903, made an order requiring the railway company, upon payment of freight charges, to make delivery of the cars beyond its right of way and on the siding referred to. Hearing was had on exceptions filed on behalf of the railway company, and on December 10, 1903, the commission made an order overruling the exceptions. The railway company appealed to the . Circuit Court' of Guilford County.</p> <p>In the meantime, on November 2, 1903, after demurrage or car service charges had attached in respect to the four cars of coal, and to prevent unnécessary interference with its other business, the railway company removed the cars in question from the team track and placed them on a distant siding.</p> <p>By chapter 164 of the Public Laws of North Carolina for 1899, creating the corporation commission, and by the acts amendatory thereof, as contained in chapter 20, revisal of 1905, as amended in 1905, it was provided as follows:</p> <p>“1086. For violating rules. — If any railroad company doing business in this State by its agents or employés shall be guilty of a violation of the rules and regulations provided and prescribed by the commission, and if after due notice of such violation given to the principal officers thereof, if residing in the State, or, if not, to the manager or superintendent or secretary or treasurer if residing in the State, or if not, then to any local agent thereof, ample and full recompense for the wrong or injury done thereby to any person or corporation as may be directed by the commission shall not be made within thirty days from the time of such notice, such company shall incur a penalty for each offense of five hundred dollars. (1899, c. 164, s. 15.)</p> <p>“1087. Refusing to obey orders of commission. — Any railroad or other corporation which violates any of the provisions . of this chapter or refuses to conform to or obey any rule, order or regulation of the corporation commission shall, in addition to the other penalties prescribed in this chapter, forfeit and pay the sum of five hundred dollars for each offense, to be recovered in an action to be instituted in the Superior Court of Wake County, in the name of the State of North Carolina on the relation of the corporation commission; and each day such company continues to violate any provision of this chapter, or continues to refuse to obey or -perform any rule, order or regulation prescribed by the corporation commission shall be a separate offense. (1899, c. Í64, s. 23.)</p> <p>* * * * * *</p> <p>“1091. Violation of rules, causing injury; damages; limitation. — If any railroad company doing business in this State shall, in violation of any rule or regulation provided by the commission, inflict any wrong or injury on any person, such, person shall have a right, of action and recovery for such wrong or injury in any court having jurisdiction thereof, and the damages to be recovered shall be the same as in an action between individuals, except that in case of willful violation of law such railroad company shall be liable to exemplary damages: Provided, that all suits under this chapter shall be brought within one year after the commission of the alleged wrong or injury. (1899, c. 164, s. 16.)”</p> <p>On January 5, 1904, the bill in this case was filed in the Circuit Court of the United States for the Eastern District of North Carolina to perpetually enjoin the bringing of actions by the ice and coal company.and by the commission to recover penalties or damages under the authority of the aforesaid statutory provisions,' because of the noncompliance of the railway company with the order of the commission. As grounds for the relief prayed it was averred that the railway company had a common defense based upon the commerce clause of the Constitution of the United States, the provisions of the act of Congress to regulate commerce and the due process clause of the Constitution, and also because the corporation commission was an illegal body, as it was empowered to exercise judicial, executive and legislative functions contrary to the Constitutions of the State and of the United States. After the filing of answers the cause was referred to a master to report the testimony and findings of fact to the court. The court, concluding that the order of the corporation commission was repugnant to the commerce clause of the Constitution, entered a decree in favor of the railway company and perpetually enjoined the enforcement of the order of the corporation com-' mission‘and the bringing of actions to recover penalties or damages for a violation of that order. 134 Fed. Rep. .82. The corporation commission and the ice and coal company appealed and the railway company prosecuted a cross appeal upon the ground that the court below erred in not deciding that the corporation commission was an unconstitutional body because of the alleged mixed and peculiar character of the functions conferred upon it by the state statutes.</p> <p>The amount involved was less than ,$2,000, and the Circuit Court had no jurisdiction. The jurisdictional amount cannot be added to by reason of the probative force of the judgment in other cases. Elgin v. Marshall, 106 U. S. 578; Holt v. Indiana Mfg. Co., 176 XL ;S. .68;; United States v. Wanamaker, 147 U. S. 149; Washington &c. Ry. Co. v. District of Columbia, 146 U. S. 227; New England Mort. Security Co. v. Gay, 145 XJ. S. 123; Baltimore v. Postal Tel. Co., 62 Fed. Rep. 500, 502.</p> <p>The North Carolina Corporation Commission was made a court of record under article IV, section 12, of the state constitution. Chap. 164, Laws of 1899; amendment of 1903, c. 342, Pub. Laws.' Being a court of record, its record imports verity, and having jurisdiction of the parties and the subject matter of the proceedings before it, the Southern Railway Company was bound by its judgment. Caldwell v. Wilson, 121 N. Car. 423, at p. 453, citing: Jones v. Penland, 19 N. Car. 358; Hyatt v. Tomlin, 24 N. Car. 149; Duffey v. Averitt, 27 N. Car. 455; Middleton v. Duffey, 73 N, Car.. 72; Wheeler v. Cobb, 75 N. Car. 21; Etheridge v. Woodley, 83 N Car. 11; Penniman v. Daniel, 95 N. Car. 341; Roberts v. Allman, 106 N. Car. 391; State v. Jones, 88 N. Car. 683, 685. See 2 Eney. of PI. & Pr. 639.</p> <p>The “due process” clause of the Fourteenth Amendment to the Constitution of the United States does not control forms of procedure nor regulate practice therein. Its requirements are complied with if the party complaining has, had sufficient notice and opportunity to defend. Louisville and N. R. R. v. Schmidt, 177 U. S. 230; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; Hooker v. Los Angeles, 188 U. S. 314; Iowa Central Ry. Co. v. Iowa, 160 U. S. 389. This process is regulated by the state law, and the United States courts can only intervene when it is in conflict, with the Constitution and laws óf the United States. Walker v. Sauvinet, 92 U. S. 90; Leeper v. Texas, 139 U. S. 462, 467.</p> <p>The question in this case is, whether the order of the commission, made in pursuance of the powers conferred upon it by the state law violates the “commerce clause” of the. Federal Constitution.</p> <p>Neither the act of Congress of February 4, 1887, establishing the Interstate Commerce Commission, nor the amendments thereto, adopted in 1889, 1893, and 1903, have any provision with reference to side-tracks at stations of railway companies. State legislation not intended to impede or interfere with interstate commerce, but rather to aid its safe and prompt delivery to consignees after reaching its place of destination, is not in conflict with the Constitution of the United States. . Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Wetson v. Black Bird Creek Marsh Co., 2 Pet. 245; Mayor, cfee. of New York v. Miln, 11 Pet. 102; Mobile v. Kimball, 102 U. S. 691; Bagg v. Wilmington, C. & A. R. Co., 109 N. Car. 281; Leisy v. Hardin, 135 U. S. 100; Nashville, C. & St. L. R. R. v. Alabama, 128 U. S. 96; Western Union Tel. Co. v. James, 162 U. S. 650; Covington &c. Bridge Co. v. Kentucky, 154 U. S. 204.</p> <p>Under the police power the State can legislate for the public convenience, as well as for the public health, morals and safety. Lake 'Shore &c. R. R. Co. v. Ohio, 173 U. S. 285; Gilman v. Philadelphia, 3 Wall. 713; Wisconsin &c. R. R. Co. v. Jacobson, 179 U. S. 294; Olsen v. Smith, 195 U. S. 332; Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477; Railroad Commission Cases, 116 U. S. 307,335; Chicago,M. & N. R. R. v. Solon, 169 U. S. 133.</p> <p>The act of the general assembly of North Carolina constituting the corporation commission was not void as being in violation of the constitution of the State.</p> <p>The act under which- the North Carolina Corporation Commission was organized, and is exercising its functions for the ' benefit of the people of the State, is, in its essential particulars, so far as it relates to railway companies, but a rescript of the laws establishing the North Carolina Railroad Commission and making it a court of record .(Laws of 1891,'chapter 320 and chapter 498); and the acts establishing both the railroad commission and the corporation commission have been expressly declared to be constitutional by the Supreme Court. And like statutes, under which railroad commissions in other States have been organized, have been upheld by this court. Railroad, Commission Cases, 116 U. S. 307; Caldwell v: Wilson, 121 N. Car. 425; Express Co-, v. Railroad, 11 N. Car. '463; Railroad Company v.- Telegraph Co., 113 N. Car. 213; Leavell v. Telegraph Co., 116 N. Car. 211; Pate v. Railroad Co., 122 N. Car. -877; Abbott v. Bedding-field, 125 N. Car. 256; Corporation Com- ■ mission v. Railroad, 127 N. Car. 283; Corporation Commission v. Railroad, 139 N. Car. 126.</p> <p>This court is concluded by the decisions of the Supreme-Court of North Carolina upon this point. Duncan v. McCall, 139 U. S. 449; Leeper v. Texas, 139 U. S. 462; O’Neill v¡ Vermont, 144 U. S. 323; McNulty v. California, 149 U. S. 645; Bergemann v. Backer, 157 U. S. 655; Kohly. Lehlbach, 160 U. S. .293; Howard v. Fleming, 191 U. S. 126.</p> <p>It has been conclusively settled by this court that where th< master and the court both concur this court will not disturb the findings, and in the language of Mr. Justice Brown “ so far as there is any testimony consistent with the finding, it must be treated as unassailable.” Davis v. Schwartz, 155 U. S. 636; Wiscart v. D’Auchy, 3 Dali. 321; Bond v. Brown, 12 How. 254; Graham v. Bayne, 18 How. 60; Norris v. Jackson, 9 Wall. 125; Ins. Co. v. Folsom, 18 Wall. 237; The Abbotsford, 98 U. S. 440; Crawford v. Neal, 144 U. S. 585; Turner v. Ferris, 145 U. S. 132; Evans v. State Bank, 141 Ü. S. 107; Kimberly v. Anns, 129 U. S. 512; Morewood v. Enequist, 23 How. 491; The Ship Marcellus, 1 Black, 414; Dravo v. Fabel, 132 U. S. 487; Companie de Navigation v. Brauer, 168 U. S. 104; The Richmond, 103 U. S. 540; The Conqueror, 166 U. S. 110; Stuart v. Hayden, 169 U. S. 14; Baker v. Cummings, 169 U. S. 198.</p> <p>The necessary diversity of citizenship exists, all of defendants being citizens and residents of a different State from that of which the complainant is a citizen and resident. There are also questions arising under the Constitution of the United States.</p> <p>The amount or matter in dispute exceeds the sum or value of $2,000, exclusive of interest and costs, and is properly alleged. See Blackburn v. Portland Gold Mining Co., 175 U. S. 570, 574; Butchers’ & Drovers’ Stock Yards Co. v. Louisville & N. R. Co., 67 Fed. Rep. 35.</p> <p>The question of jurisdiction, not having been raised in the case at bar by any special plea to tire jurisdiction, it must be held under the rulings of this court that the facts sufficient to establish the jurisdiction are admitted when properly averred in the bill, as in the case here.</p> <p>Both the master and the Circuit Judge have held that this suit involves the right of Southern Railway Company to conduct and manage its interstate business at Greensboro, North Carolina, and to dispose of its rolling stock, and to distribute it, and to refuse or permit its cars to be placed on private sidings, according to its reasonable rules and regulations, and that said right is of incalculable valué to Southern Railway Company, and amounts to many thousands of dollars far in excess of the sum or value of $2,000 exclusive of interest and costs. Butchers' & Drovers’ Stock Yards Co. v. Louisville & N. R. R. Co., supra; Nashville, C. & St. L. Ry. v. McConnell, 82 Fed. Rep. 65; Scott v. Donald, 165 U. S. T07'; Louisville v. N. R. R. v. Smith, 128 Fed. Rep. 1.</p> <p>This is not a suit against the State of North Carolina. A bill to restrain the executive officers of a State, under alleged authority of an unconstitutional statute, is not a suit against the State. Scott v. Donald, 165 U. S. 107 and cases cited; Belknap v. Schild, 161 U. S. 10, 18.</p> <p>The equities of this bill are to prevent irreparable injury and a multiplicity of suits to which Southern Railway Company has a common defense, involving' questions of law common to all said suits.</p> <p>Where a failure to obey an order made by. a state railroad commission, which was unáuthorized and void, would under the state statutes, subject the company, in its daily business, to large numbers of individual actions, and to heavy penalties, a court of equity has jurisdiction of a suit to enjoin enforcement of such order, on the ground that its decree will avoid a multiplicity of suits and afford a more efficacious remedy than can be had at law. Dinsmore v. So. Express Co., 92 Fed. Rep. 714, 715; Smyth v. Ames, 169 U. S. 517; Va.-Carolina Chem. Co. v. Home Ins. Co., 113 Fed. Rep. 1; Louisville & N. R. R. v. Smith, 128 Fed. Rep. 1.</p> <p>This is not a suit to restrain' cases already pending in state courts contrary to section 720, United States-Revised Statutes. Texas & P. R. Co. v. Kuteman, 54 Fed. Rep. 547. The corporation commission is not a “court” in the sense of the statuté. Gurnee v. Brunswick, 11 Fed. Cas. No. 5,872; People v. . Trustees, 39 N. Y. Supp. 607; People v. Van Allen, 55 N. Y. 31-; White County Com’rs v. Givin, 136 Indiana, 562; Johnston v. Hunter, 50 W. Va. 52; Upshur v. Rich, 135 U. S. 467; Fuller v. County of Colfax, 14 Fed. Rep. 177. See Western Union Tel. Co. v. Wyatt, 98 Fed. Rep. 335.</p> <p>The Supreme Court of North Carolina has directly held that the corporation commission of North Carolina is not a “judicial court.” State ex rel. Caldwell v. Wilson, 121 N. Car. 425; State v. Wilmington and Weldon R. R. Co., 122 N. Car. 877.</p> <p>The four cars of coal in question were and are articles of interstate commerce and beyond control of North Carolina Corporation Commission. Where the articles, are still in the cars and undelivered, they are subjects of interstate commerce, and the transfer of said articles from the car to the depot or station is a part of the interstate transportation. In the case at bar it will be noted that even such transfer had not taken place, and unquestionably the interstate transportation was uncompleted. Rhodes v. Iowa, 170 U. S. 412; Wall v. N. & W. R. R. Co., 52 W. Ya. 485; Connery v. Railroad Co., 92 Minnesota, 20.</p> <p>Furthermore, the act to regulate commerce, itself, provides that it shall.and does apply to the “ transportation of passengers or property” . . . “from one State or Territory of the</p> <p>United States or the District of Columbia, to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country,” etc. Congress having legislated no state regulations can apply. Gulf, C. & S. F. R. Co. v. Hefiey, 158 U. S. 98; Gulf, C. & S. F. R. Co. v. Miami S. S. Co., 86 Fed. Rep. 407. Switching and terminal charges are exclusively covered by act of Congress: Fielder v. M., K. & T. R. Co., 42 S. W. Rep. 362; Walker v. Keenan, C. C. A. 7th Cir. 73 Fed. Rep. 755; I. C. C. v. D. G. H. M. R. Co., 167 U. S. 633; /. C. C. v. C., B. & Q. Ry. Co., 186 U. S. 320.</p> <p>An article of interstate commerce remains wholly free from such state control, as long as it is in the original package. Leisy v. Hardin, 135 U. S. 100. Unquestionably coal stored in a car in which it originally started on its transit is still hi the original -package. £ustin ~vi Tennessee,. 179 U. S.,343.</p> <p>This is not only the law of the United States but the statutes of North Carolina themselves expressly disclaim any application to interstate commerce. Act of March 6,1899, c. 164, § 14. See also McGwigan v. Railroad Co., 95 N. Car. 428.</p> <p>The rules of the North Carolina Corporation Commission as to placing cars loaded with interstate freight, and its orders to place the four cars of interstate freight now in question are void because they interfere with interstate commerce; because they deal with a subject National in its character, requiring uniform treatment throughout the United States, and a subject over which the action of Congress is exclusive, the States being powerless to interfere at all; and because Congress has in fact,legislated on this particular subject, and the field is exclusively occupied by existing acts of the Federal Government.</p> <p>This court has never separated the cases into those which aid interstate, commerce and those which interfere with interstate commerce, and it has never held that the States may pass acts in aid of commerce, while they are forbidden to pass acts interfering with commerce. The only classification of cases ever made by this court were the three classes set forth in Bridge Co. v._Kentucky, 154 U. S. 204, 209, where it divides them as follows:</p> <p>First, those in which the power of the State is exclusive; second, those in which the States may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive and the States cannot interfere at all.</p> <p>The case of Bridge Co. v. Kentucky, 154 U. S. 204, has beeA cited and reaffirmed in the following cases. W. U. Tel. Co. v. James, 162 U. S. 650, 655; M. P. R. Co. v. Nebraska, 164 U. S. 403, 416; C. & L. Turnpike Co. v. Sandford, 164 U. S. 578,586; Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 153; Henderson Bridge Co. v. Henderson, 173 U.. S. 592, 623; K. & H. Bridge Co. vt Illinois, 175 U. S.~ 626, 632; Hanley v. Kansas City S. R. Co., 187 U. S. 617,.620; Champion v. Ames, 188 U. S. 321, 352; St. Clair County v. Interstate S. & C. T. Co.. 192 U. S. 454, 457. ‘</p> <p>See also Wabash &c. R. Co. v. Illinois, 118 U. S. 557, which has been cited and reaffirmed in many cases, holding that the times, and modes of delivery of interstate freight are not. the subject of state regulation.</p> <p>This court has never disturbed its rulings in the Wabash case, and while some state statutes indirectly affecting interstate commerce have been sustained it will be found that they in no way conflict with or modify the doctrine laid down, This will more clearly appear by reference to some of the cases decided by this court sustaining certain state statutes.</p> <p>Animals having contagious diseases may be excluded from a State: Mi, K. & T. R. Co. v. Haber, 169 U. S. 613;“Reid v. Colorado, 187 U. S. 137. A law requiring the erection of fences and cattle guards: Missouri Pac. R. Co. v. Humes, 115 U. S. 512; M. & St. L. R. Co. v. Beckwith, 129 U. S. 26; M. & St. L. R. Co. v. Emmons, 149 U. S. 364. A state law requiring engineers operating passenger and freight trains to have, their sight examined: Smith v. Alabama, 124 U.'S. 465; prohibiting the consolidation of parallel or competing lines: L. & N. R. Co. v. Kentucky, 161 U..S. 677; separating the white and colored races: L.- N. 0. & T. P. Ry. Co. v. Mississippi, 133 U. S. 587; Plessy v. Ferguson, 163 U. S. 537; prohibiting the running of freight trains on Sunday: Hénnington v. Georgia, 163 U. S. 299.</p> <p>In reference to the Hénnington case, Justices Brewer, White, Peckham and Shiras appear to have placed themselves on record in a dissenting opinion that they considered the Hennington case' erroneously decided. L. S. & M, S. Ry. Co. v. Ohio, 173 U. S. 285, 325. .</p> <p>A statute forbidding the use of stoves as means of heating cars has been upheld: N. Y., N. H. & H. R. R. v. New York, 165 U. S. 628; requiring trains to stop at county séats: Glad-:son v. Minnesota, 166 U. S. 427;. requiring a carrier to inform the shipper that a loss has not happened on its line: Railroad Company v. Patterson, 169 U. S. 311; requiring bills of lading to be signed by both parties has been upheld, as a rule of evidence: Railroad Co. v. Patterson, 169 U. S. 311.</p> <p>A law requiring a railroad company to stop three trains each way at cities containing 3,000 inhabitants, has been upheld:.. L. S. & M. S. R. Co. v. Ohio, 173 U. S. 285; requiring'a physical connection of tracks by two different railroads: Wisconsin &c. R. Co. v. Jacobson, 179 U. S. 287.</p> <p>See the following cases where the regulations are held invalid. I. C. R. R. Co. v. Illinois, 163 U. S. 142, where a statute of Illinois was declared void because it attempted to require an interstate express train from Chicago to New Orleans to go three and one half miles out of its way and deviaté from its course so as' to stop at Cairo, 111. Likewise a statute of .Illinois requiring all passenger trains to stop at stations. C. C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514.</p> <p>In Central Stock Yards Co. v. Louisville & Nashville R. R. Co., Í92 U. S. 568, an attempt to compel the cars and freight received from one State to.be delivered to another at a particular place and in a particular way was held an interference with interstate commerce and the constitution of Kentucky was impotent to produce any such result.</p> <p>The rules of the corporation commission governing loading and unloading interstate freight, are in conflict with the Interstate Commerce Law, and must yield. Gulf, C. & S. F. R. R. v. Hefley, 158 U. S. 98; L. & N. R. R. Co. v. Eubank, 184 U. S. 27; Interstate Com. Com. v. D. G. H. & M. Ry. Co., 167 U. S. 633; Interstate Com. Com. y. C., B. & Q. R. R. Co., 186 U. S. 320; Central Stock Yards Co. v. L. & N. R. R. Co., 118 Fed. Rep. 113.</p> <p>It was also held by the commission that the Commerce Act covers demurrage, storage, terminal charges, and the distribution of cars, in so far as interstate freight is concerned, in the following cases. Riddle et al. v. Pittsburg & L. E. R. R. Co., 1 I. C. R. 688; Riddle v. N. Y., L. E. W. R. R. Co., 1 I. C. R. 787; Heck v. R. R. Co., 1 I. C. R. 775; Cutting v. F. R. & N: Co., 11. C. R. 294; Rice et al. v. Western N. Y. & Penna. R. R., 3 I. C. R. 162; Independent Refiners’ Association v. W. N. Y. & P. R. R. Co., 4 I. C. R. 162; Cattle Raisers’ Association v. Fort Worth & D. C. Ry. Co. et al., 7 I. C. R. 513; American Warehousemen’s Association v. III. Central R. Co., 7 I. C. R. 556, 592; Pennsylvania Millers’ State Association v. P. & R. Ry. Co. et al., 8 I. C. R. 531, 553, 558; Palmer’s Dock H. & P. Board, of Trade v. Penn. R. R. Co., 9 I. C. R. 61. See also' opinion of Circuit Court of Appeals for the Fourth Circuit annouhced February 6, 1906, in United-States ex rel. Green-briar Coal & Coke Company v. Norfolk & Western Railway Company; Fielder v. Missouri, K. & T. Ry. Co., 42 S. W. Rep. 362.</p> <p>Railroads have the right to make reasonable rules and regulations for the conduct of their traffic in their own interests and that of the public. Harp v. Choctaw, 0. & G. R. R. Co., 125 Fed. Rep. 445; Robinson v. Baltimore & Ohio R. R., 129 Fed. Rep. 753; Stock Yards Co. v. Keith,..139 U. S. 128; Donovan v. Pennsylvania Co., 199 U. S. 279.</p> <p>No legislation can supersede the president, general managers, traffic officials and other officers of railway companies charged by the owners with the conduct of the company’s business, but the power of the legislature is limited solely to the' protection of the health, safety and convenience of the public, and the term “convenience” is not to be construed into the right of the legislature to usurp the management of the company. Lake Shore &c. Ry. Co. v. Smith, 173 U. S. 684.</p> <p>It would -be intolerable if a railway company should at any moment be subjected to orders by telegram from railway commissions. to take cars out of trains at any points designated by said commissions and place them upon' spur or side-tracks. Such action would disarrange the entire schedules of'the railway company throughout its system. It-would demoralize the service and endanger the safe conduct and movement of the trains, and would supersede the authority of the officers of the company and practically usurp the management of the railway.</p> <p>A carrier is not obliged to receive or deliver freight at a mere switch track. The switch of the Greensboro Ice and Coal Company was not built under any order of the corporation commission or any state authority, nor was there any contract requiring such delivery. Charnock v. Texas & Pacific Ry., '194 U. S. 432.</p> <p>A railway company is not a common carrier as to private sidings or spur tracks, and the State has no power to force a railroad company to deliver its cars thereon. Mann v. Pere Marquette R. Co., 135 Michigan, 210, 219; S. C., 97 N..W. Rep. 721, 724, and cases cited; Jones v. Newport Neivs &c. R. Co., 65 Fed. Rep. 136; Mercantile Trust. Co. v. Columbus S. & H. R. Co., 91 Fed. Rep. 148.</p> <p>The proceedings before the corporation commission were not due process of law. The statute creates a body combining the three functions of government — legislative, executive and judicial.</p> <p>The power to make rates is unquestionably a legislative function. Munn v. Illinois, 94 U. S. 113,144; Peik v. R. R. Co., 94 U. S. 164, 168; R. R. Co. v. Express Co., 117 U. S. 1; R. R. Co. v. Minnesota, 134 U. S. 418; Reagan v. Farmers’ L. & T. Co , 154 U. S. 362; R. R. Co. v. Gill, 156 U. S. 649; R. R. Co. v. I. C. C., 162 U. S. 184; I. C. C. v. R. R. Co., 167 U. S. 479; I. C. C. y. R. R. Co., 168 U. S. 144.</p> <p>Assessment of property for taxation is an executive function. County of Upshur v. Rich, 135 U. S. 467.</p> <p>It is clear that the legislative intent was not to create a body to exercise alone either the judicial, the executive or the legislative functions conferred upon North Carolina Corporation Commission, but the object of the entire legislation was to create a body that could exercise all of the functions conferred upon it, consequently it is impossible to separate one portion of the act from the other and declare that void, but the entire act must fall. Trade-mark Cases, 100 U. S. 82; United States v. Reese, 92 U. S. 214; Connolly v. Pipe Co., 184 U. S. 540, 565.</p> <p>It necessarily follows that an order of any such unconstitutional body is void for it has been settled beyond question that an unconstitutional law cannot create even a de facto officer and that no office at all exists under an unconstitutional statute. Norton v. Shelby County, 11SJJ. -S-. 425.</p>

The question in the case is whether certain sugars which were imported between the twelfth of June and the twenty-eighth of September, 1903, were chargeable "with full duties under the tariff act of July 24,1897, or were entitled to twenty per cent reduction of duties prescribed by that act, under the treaty between the United States and' Cuba of the date December 11, 1902, and an act of Congress of December 17, 1903.

The facts are stated in the opinion. There was also a separate brief by Mr. Edward S. Hatch and Mr. J. Stuart Tompkins in behalf of certain importers having similar interests.

<p>The question involved in the motion is stated in the opinion.</p>

Held: that: Negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw from them the inference that there was no negligence;, and if, from the facts admitted or conflicting testimony, such men m;ay honestly draw different conclusions as to the negligence charged, the question is not one of law but of fact, to be settled by the jury under proper…

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina.</p>

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

<p>Appeal from the Supreme Court of Porto Rico.</p>