Volume 206 — United States Reports

Held: under the circumstances of this case, not to be so arbitrary or unreasonable as to transcend the limits of regulation and to be in effect either a denial of due process of law or a deprivation of the equal protection of the laws, or a taking of property without compensation.

Held: in substance, that the sale of the policies' was null and void, and that the value of the securities had not been ascertained according to the provisions of section 57h of the bankruptcy act, and refused to. allow either claim against the estate or estates.

Held: in this case proper and Hot to present any Federal question. Writ of error to review 92 S. W. Rep. 534 , .dismissed. THE- facts are stated in the opinion of -the court. *42 Mr. Henry D. Ashley, with whom Mr. Sanford B. Ladd, Mr. William S. Gilbert, Mr. Denton Dunn and Mr. Robert 3. Rodgers were on the brief, for plaintiff in error. Mr. N.-W. Norton for defendants in error. Me.

, which by statute (Compiled Laws, Kansas, p. 317, sec. 14) is prepared by the.justice writing the opinion, and states' the law of the case, are these paragraphs: “The use of the water of a running stream for irrigation, after, its primary uses- for quenching thirst and other domestic requirements have been subserved, is one of the common law rights of a riparian proprietor. .“The use of water by a riparian proprietor for. irrigation purposes must be reasonable under all the…

Held: that: In the absence of anything to the contrary, it will be assumed that the release which was executed was the one stipulated for in the original con *119 tract and was intended to include all matters which according to its terms were to be released by the company as a condition of final payment.

On February 17, 1904, a grand jury returned into the Circuit Court of Laurel County, Kentucky, an indictment against Joe Newland -and the Adams Express, Company, charging that “ thg said Joe Newland and the Adams Express Company, the latter being a partnership engaged in and carrying on the business of a common carrier of packages, goods, wares and merchandise, by the method known as express . . . did in Laurel County, Kentucky, on the seventeénth day of February, 1904,…

<p>Decided on authority of Adams Express Company v. Kentucky, ante, p. 129.</p>

<p>Decided on authority of Adams Express Company v. Kentucky, ante, p. 129..</p>

<p>APPEAL PROM THE CIRCUIT COURT OP THE UNITED' STATES FOR "THE SOUTHERN DISTRICT OF OHIO.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. If defendants acting in their official capacity as directors of the Capital National Bank mismanaged the bank and wasted its assets by reason of their neglect so that thereby the bank became insolvent, the damage resulting was an asset of the bank, and could not be recovered by the individual depositors who lost money in the failure of the bank, but only by. the bank or its receiver.' Conway v. Halsey, 44 N. J. Law, 463, 464; Kennedy v.…

<p>ERROR TO THE SUPREME COURT-OF THE'STATE OP NEBRASKA.</p> <p>The facts are stated in the opinion.</p>

The appellant herein filed his petition in the Court of Claims to obtain compensation for services performed by him- while a register of the United States land office at Humboldt, in the State of Kansas, during the time from- May 12, 1869, until November 20, 1871. His petition to recover for such services was filed" in the ' Court of Claims pursuant to the provisions of section 13 of the' Indian Appropriation Act -'(chapter 994), approved May 3, 1903 (32 Stat. 1010, 1011).

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND ' CIRCUIT. '</p> <p>This case comes here by virtue of a writ of certiorari issued from this court to the United States Circuit Court of Appeals for the Second Circuit, for the purpose of. reviewing the action of the courts and of the customs authorities in relation to an assessment of duty on certain importations made by the petitioner, appellant,'at the port of New. York.</p> <p>The merchandise on which duty was assessed was a growth upon certain skins of -the Mocha sheep, imported from Hodeida, Arabia, which growth was classified by the collector as wool on the skin of the third class and assessed for duty at three cents per pound, under the provisions of paragraph 360 of the tariff act of July 24, 1897 (30 Stat., pages 151,183). The importer duly protested against .the classification and insisted that the merchandise was entitled to entry free of duty under paragraph 571, 30 Stat., supra, page 198, or under paragraph 664 of such act. (Page 201.) Paragraphs 351, 358, 360, under which tibíe Government claims duty, and paragraphs 571 and 664, under which the importer claims free entry, are set forth in the margin.1</p> <p>The collector having returned the merchandise in question as wool of the third class, under paragraph 360, the importer appealed to the Board' of General Appraisers, where the ruling of the collector was sustained, and the importer then appealed to the Circuit Court and then to the Circuit Court of Appeals, each of' which courts sustained the ruling of the Board of General Appraisers and the collector.</p> <p>Before the Board of General Appraisers the importer produced six witnesses, who testified as to the. character, use and commercial designation of the merchandise. On the appeal to the Circuit Court a referee was there appointed, and the importer offered further evidence to sustain his claim that the merchandisé was entitled to free entry.</p> <p>No testimony was offered by the Government. It is not claimed by the Government that the merchandise in question comes under paragraph 351 as wool of the third class (except as it may be wool of like character), as it is not Donskoi, native South American, Cordova, Valparaiso, native Smyrna or Russian .camel’s hair, but it is asserted that the growth on the skins was wool on the skin under paragraph 360, or was a wool of like character as that above enumerated in paragraph 351, ■ .</p> <p>The evidence shows that- the hair or wool (whichever it is called), grows on the Mocha white sheep, imported from Ho-deida, Arabia. The growth to be found on- this breed of sheep is not bought or sold in this country as wool, but as hair. It would not be accepted as a delivery of wool of any grade by those dealing in that article. Although there might have been • a very small proportion of what might possibly be térmed very inferior wool, on these skins (not more than ten per centum in any case, and frequently less), yet there was n'o ■ substantial Use of any portion of the', growth on the skins for purposes for which wool is generally used. To some extent, but very little, it had been tried in mills to spin, and it might be used sometimes by carpet manufacturers in a small way, and efforts had been made to use it, .’mixed with wool, in spinning, but it was not practically successful, nor was it practicable to use it for other purposes for which wool is used. The chief, or prédomi-nant, and almost sole use of the substance is as hair for stuffing, and for the saddlery trade, and by bed; manufacturers for stuffing purposes. • It is bought and sold all over the country as Mocha-hair. The skin upon which the substance grows is the thing that is valuable. A large part of the skins imported into this country is used in- the manufacture of glove leather. One witness testified that his firm, so used from seventy-five to ninety per cent, of the skins imported, and the growth thereon was bought and sold as Mocha hair. It costs more to -remove the growth from the skin than it sells for after its removal. It. cannot be used for spinning purposes, because it would not hold together. It might be carded, but there would not be much left after carding. ■ The price of the skins on which this growth is found is not influenced by the quantity of the growth on them. The more of a growth there is, the less the skin will bring, or, as is said, .the more hair, the poorer the skin. The skins are’ sold by the importers to tanners of gloves and shoe leather,- just as they arrive. After the growth is washed and removed from the skin it may be. sold for from three to five cents per pound, which is less than the cost of removing it. In buying the skins no notice is taken of the growth, the only consideration bring the value of the pelt, and the pelts are worth no more with long hair on than short hair. The growth has never been accepted of sold as wool, but, on the contrary, prior, to July 24,1897, when the tariff act was passed, it was uniformly ’ regarded and bought arid'sold in the United States as hair. “Mocha hair” was the trade nomenclature prior to. 1899, and ás such the trade- name was definite and uniform throughout the United States, and dealers in it never knew it to be called, anything else than Mocha hair. . It has not the appearance of wool, does not feel like wool and has none of the qualities of wool. ' It is bought' from tanners after it has been taken from the skin by them, and it is thus sold and bought as Mocha hair, and the skins are used for leather by the tanners.</p> <p>One of the witnesses called on behalf of the importers was an examiner of wool fibres and skins at the port of New York, which position he had held for about fifteen years. He said that when he' first went into the government employ such skins as those in question were returned free, the hair as well as the skin, but 'that practice has since been changed. The witness further said, that if the growth in question were found on a goat he would return if as hair of a goat, and entitled to free entry; that wool could be run down, or deteriorate, to such a condition as the growth in question, but that it was, in fact, mostly “what they call dead hair or kemp;” that although it could possibly be'carded,, it was not commercially suitable, and there would not be much left after they got through carding it. • On cross-examination the witness said that he would return the article in question as,Mocha sheepskin with the wool on. On such a skin as the one in question the'witness said there was a substance which he would call wool, which was about ten per cent, only of the growth; that he examines such skins as the ones in question and throws out' those he considers dutiable when there is enough wool to call it dutiable, and lets the skins go not dutiable when you could not make anything out'of the growth in any way, although some use might possibly be made of it.</p> <p>The cross-examination of other witnesses was to the effect .that this growth had been tried in mills for the.purpose of spinning, but very little, being used with other stock to make into yarn, but it has not been successfully used for that purpose; it might be used sometimes by carpet manufacturers in a small way, and while it could not be- used or spun alone, it might be carded. It was also said on cross-examination of one of the witnesses that if such growth ran pretty white it is sometimes used in those low grade carpet yarns where they put in such stuff as jute packing is made of and some hair like the growth in question. The evidence is, however, overwhelming and the witnesses substantially unanimous that this substance is not known as wool, and is neither bought nor sold as such, and is commercially known as Mocha hair aiid is not used as wool.</p> <p>The growth of the skins must be classified according to its commercial designation. 'Hedden v. Richards, 149 U. S. 346, 348, 349; American Net and Twine Co. v. Worthington, 141 U. S. 468, 471; Arthur v. Morrison, 96 U. S. 108; Two Hundred Chests of Tea, 9 Wheat. 430, 438; In re Wise, 73 Fed. Rep. 183, 188, and cases cited.</p> <p>The evidence in this case is wholly uncontroverted that the substance of these Mocha whitehead sheepskins, according to the general and uniform trade understanding, is not wool, but, on the contrary, is hair, and it follows that the collector’s classification of the substance as wool of Class 3 was erroneous.</p> <p>The article has always been generally and uniformly bought and sold only under the name of “Mocha hair,” and is so known and recognized not only in commerce, but also according to common understanding; it is used for purposes other than those to which wool is applied — and this -Mocha hair would not be accepted as a good delivery under an order for even low-grade wool.</p> <p>Under this general and uniform commercial understanding and usage, excluding this article from the category of merchandise-regarded in trade as “wool,” and including it in that known as “hair,”'it was improperly classified by the collector under paragraph 358 of the tariff law of 1897, as “wool.” Chew Hing Lung v. Wise, 176 U. S. 156,161; Arthur v. Morrison, 96 U. S. 108, 110; Elliott v. Swartoui, 10 Peters, 137, 151; Hedden v. Richard, 149 U. S. 346, 349.</p> <p>It is not material that it is physically possible to use the article for some of the purposes for which wool is used, or that it occasionally may be used for such' purpose. An occasional or possible use is. not sufficient to affect the classification of an article for tariff purposes. Chew Hing Lung v. Wise, 176 U. S. 156, 162; Magone v. Wiederer, 159 Ü. S. 555; Hartranft v. Languid, 125 U. S. 128. '</p> <p>The evidence establishes the-fact that the growth on the skins is hair, and not wool. The substance- is commercially known as hair and dealt in under that designation, and never as wool'.</p> <p>The commercial designation is in accordance with the actual character 'of the article, because it has none of the characteristics of wool and it is not used as wool and is not suitable for the uses tb which wool is put.</p> <p>Under the wool paragraphs of the tariff act the word “wool” is manifestly used in a generic sense to describe- the fleece of the sheep, as distinguished from the word “hair,” which is used to describe the -coat of the camel and other like animals, and not in a technical and commercial sense as. referring only to that portion of the fleece of the sheep which possesses the specific qualities of wool as distinguished from those of hair.</p> <p>The rule of commercial designation is not applicable to the classification of wool.</p> <p>Where it appears from the statute itself that words in a tariff act are not used in a technical sense as a commercial designation or trade term, their meaning is not to be controlled by their commercial usage. Maillard v. Lawrence, 16 How. 250; Green-leaf v. Goodrich, 101 U. S. 278; Barber v. Schell, 107 U. S. 617; Newman v. Arthur, 109 U. S. 132; Reimer v. Schell, 4. Blatchf. 328; Roosevelt v. Maxwell, 3 Blatchf. 391; Carson y. Nixon, 90 Fed. Rep. 409; Patton v. United States, 159 U. S. 500; Cad-walader v. Zeh, 151 U. S. 171; United States v. Klumpp, 169 U. S. 209. -</p> <p>General words of similitude, such as “goods of a similar description,” are not words of commercial designation whose meaning can be controlled by proof, that goods which are in fact of similar description have a different commercial classification.</p> <p>The proof of commercial designation in the present case is in any event insufficient, for the reason that where an importer claims that certain specific articles are excluded by their commercial designation from a class mentioned in a tariff act, it is not sufficient for such purpose, even in those cases where the test of commercial designation' is applicable; to show negatively that these specific articles were commercially known by another name and were not commercially known by the name used in the act, but it must be affirmatively proven that the words .used in the act had at the time of its passage a definite and uniform meaning which excluded the specific articles in question. In other words, the proof of commercial meaning must not be addressed simply to the commercial designation of the particular article in question, as was done in the case at bar, but to the commercial meaning of the term used in the act. Greenleaf v. Goodrich, 101 CJ. S. 278; Schmieder v. Barney, 113 U. S. 645; Claftin v. Robertson, 38 Fed. Rep. 92; Carson .v. Nixon, 90 Fed. Rep. 409 (C. C. A.); Field v. United State's, 90 Fed. Rep. 412 (C, C. A.).</p> <p>The testimony offered by the importer in reference to the general' character of these fleeces and their commercial use is insufficient to overthrow the presumption in favor of a correct classification.</p> <p>As the test of classification under the statute is likeness of character to Donskoi and other enumerated wools of the third class, to be determined by the standard samples of wool of the third class deposited in the custom house, the importer’s testimony as to the qualities of this fleece and its conamercial use, which is entirely of an abstract and general character ¿nd not directed either to the point of its likeness to Donskoi and other enumerated wools or of conformity to the standard samples, is in any event immaterial.</p> <p>It is 'well- settled that where a wool or hair is of a species, coming within a particular class of. the wool schedule its • especial quality and commercial. use is immaterial and will not take it out of such class. Cooper v. Dobson, 157 U. S. 148.</p> <p>There was, furthermore, material evidence tending to show that’the fleece in question in fact has the qualities and is adapted to the uses of a low-grade third-class wool, and hence, under the settled rule of practice, the concurrent' finding of the Board of General Appraisers, the Circuit Qourt, and the Circuit Court of Appeals that it is a wool of this class, is now conclusive.</p> <p>In the Circuit Court of Appeals the judgment below was affirmed on the opinion of the Circuit Court...</p> <p>The case therefore calls for the application of “the settled doctrine of this court \ . . that the concurring decision of two courts on a question of fact will be followed unless shown to be clearly erroneous.” Dravo v. Fabel, 132 U. S. 487; Com-pañía La Flecha v. Brauer, 168 U. S. 104; Stuart v. Hayden, 169 U. S. 1; Baker v. Cummings, 169 U. S. 189, 198; Wupperman v. The Carib Prince, 170 U. S. 655; Workman v. New Work City, 179 U. S. 552, 555; Brainerd v. Buck, 184 U. S. 99; Beyer v. Le Fevre,' 186 U. S. 114; Shappirio v. Goldberg, 192 U. S. 232. .</p>

Held: in an action brought by the Mission to recover the $15,000, that, Extrinsic evidence,- as to what the parties did and the nature of the course of instruction when the agreement was made, and thereafter as continued . by -the government, was admissible to prove the intent of the parties as to what was meant by sound literature and solid science, and that under all the circumstances the agreement-was that religious…

<p>In construing a tariff act the court cannot disregard the condition upon which the law makes the duty depend. Under paragraph 408 of the tariff act of 1897, 30 Stat. 151, 189, metal beads strung on cotton cords or strings, although only temporarily strung to facilitate transportation, are subject to the higher duty of forty-five per cent, and not to the lower duty of thirty-five per cent, as'beads “not threaded or strung."</p>

<p>A court is not always confined to the written words' of a statute; construction is to be exercised as well as interpretation and a statute will not be construed as giving higher pay to the inferior officer. Under the Navy Personnel Act of March 3, 1898; 30 Stat. 1007, and § 1466, Rev. Stat., passed assistant surgeons of the navy, as well as assistant surgeons, rank with captains in the army and are entitled to the pay of a captain mounted.</p>

<p>BILL IN EQUITY.</p> <p>The facts are stated'in the opinion.-</p>

The facts are stated in the opinion. In the case at bar the officer, having been duly commissioned as an officer of a regiment of United States Volunteers, is prima facie a volunteer officer, and as such is eligible to sit at the trial of an officer or enlisted man of the volunteer forces.

Ellis v. United States, 206 U.S. 246 (1907), is a court case that was ultimately decided by the U.S. Supreme Court. The case, which was identified as case No. 567, was argued in conjunction with three cases entitled Eastern Dredging Company v. United States (Nos. 664, 665, and 666) and three cases entitled Bay State Dredging Company v. United States (Nos. 667, 668, and 669). All seven cases concerned the issue of whether the federal government had the power to limit the number of hours worked per day by federal workers or employees of federal contractors. In its judgment, the Supreme Court upheld a federal law limiting the hours worked by such persons. The cases were originally addressed by the District Court of the United States for the District of Massachusetts.

The facts are stated in the opinion. The laws of Congress governing the location-and limits of the bridge and approach in question are paramount. The defendant in error has no power to condemn that part of the land lying west of the 720-foot approach, as fixed by the Secretary of War, for the purpose of constructing and operating “terminal yards” and railroad terminals, or as part of the bridge.

<p>Whether the proceedings in the enactment of a state statute conform with the state constitution is to be determined by the state court and its judgment is final.</p> <p>A state statute directing the state treasurer to write certain bonds off the books in his office and no longer to carry them as a debt of the State does not impair any existing obligation of the State to pay the bonds nor affect . the remedy to recover upon them'; and-whére-the.state court has so construed the act, in refusing to enjoin the treasurer from making the entries required thereby, at the suit'of one claiming'to own the bonds, no Federal right of the plaintiff is deniedj obstructed, impaired or affected and the writ of error will be dismissed.</p>

The plaintiff in error, the State of Wyoming, on the relatipn of the Wyoming Agricultural College and its officers, filed a petition in the Supreme Court of that" State for a writ of mandamus against the-defendant in error, the state treasurer.

Kessler v. Eldred, 206 U.S. 285 (1907), was a United States Supreme Court case in which the Court defined some effects of a court decision that an inventor had not infringed on a patent.

Held: as security for the creditors as to one-third. We do not care to take up. and discuss" this legislation. We are satisfied that as we have jurisdiction, these questions ought not to be passed upon on demurrer. Kansas v. Colorado, 185 U. S. 125 , 144, 145. And this also furnishes sufficient ground for not considering at length the objection of multi *322 fariousness.

Grafton v. United States, 206 U.S. 333 (1907), was a United States Supreme Court case in which the court held that the Double Jeopardy Clause is not violated when the first conviction came from a court without jurisdiction to try the offense. Also, the separate sovereigns exception to the Double Jeopardy Clause does not apply in a U.S. territory because an insular area is not a sovereign state.

<p>Petition for rehearing in Love v. Flahive, 205 U: S. 195, denied.</p> <p>A sale made by a party who is in possession ef a tract of public land with an intent-thereafter to enter it as a homestead is equivalent to a relinquishment of thé right to enter, and the Department may properly treat the party making the sale as having no further claims upon the land. He may not sell and still have the rights of one who has not sold; nor does he- by .merely continuing in possession create a new right of entry against the party in whose favor he relinquished his right.</p>

The facts are stated in the opinion. Under the laws of Porto Rico a conveyance of real property can neither be attacked nor rescinded where such property is legally in the hands of a third party who has not acted in bad faith. Civil Code, Rev. Stat., 1902, § 1262. A bona .fide possessor is deemed to be a person who is not-aware that there exists in- his title or the manner of acquiring it, any flaw invalidating the same. ”' Civil'Code, Rev. Stat., ed. 1902, sec. 436. . .

<p>Congress in dealing with the Philippine Islands may delegate legislative authority to such agencies as it may select and may 'ratify the acts of agents as fully as if such acts had been specially authorized by a prior act of Congress.</p> <p>The act of June 30, 1906, 34 Stat. 636, legalizing and ratifying the imposition and collection of duties by the authorities of' the United States in the. Philippine Islands prior to March 8, 1902, was within the power of Congress and can be given effect without depriving persons who had paid such duties of their property without.due process of law or taking their property for public use without compensation in violation of the Fifth Amendment.</p> <p>The mere commencement of a suit does not affect the right of Congress to ratify executive acts and the fact that at the time the ratifying statute was enacted actions were pending for the recovery of sums paid does not cause the statute to be repugnant to the Constitution. References in De Lima v. Bidwell, 182 U. S., as to want of power to ratify after suit brought are to be regarded as obiter dicta.</p>

COURT OF THE STATE ÓF INDIANA. Judgment against the plaintiff in error (who was defendant below) was recovered in a state Circuit Court in Indiana, which was affirmed by the Supreme Court of the State (164 Indiana,-37), and the plaintiff in error brings the case here to review that judgment, The predecessor of the defendant in error, being at the time treasurer of Tippecanoe County, in the State of Indiana, brought this action in 1897 against the plaintiff in error to…

The above-named appellants have appealed from a judgment of the-Circuit Court of Appeals of the Seventh Circuit, affirming a decree of the United States District Court for the Eastern District of Wisconsin dismissing certain petitions of the appellants for want of equity. 143 Fed.

Appeal prom the UNIted states circuit court op appeals FOR THE FIFTH CIRCUIT. The' facts are stated in the opinion. The “findings of fact”, made by the Corrimission in the case at bar are not conclusive. The inquiry made by the Commission in this case was not conducted on a proper basis; it was not made upon a full consideration of. all the circumstances and conditions' upon which a legitimate order could be founded; and it was unduly restricted-in its scope.

This case involves the validity of an order- of the Interstate Commerce Commission requiring the appellants “to cease and desist on or before the first day of April, 1905, from further maintaining or enforcing the unlawful advance of two cents per hundred pounds, or the said unlawful rates resulting therefrom, for the transportation of lumber from shipping points on defendants’ respective lines in the State of Louisiana east of the Mississippi River and in the States of…

Held: citing Johnson v. McIntosh, 8 Wheat. 574 , that the right of the Indians in the land from which the tags were taken was that of occupancy only.

The facts are stated in the opinion. The Territorial Board of 'Equalization may, for the purpose of adjusting and equalizing, increase the aggregate value of one county and decrease that of another, but it has no power to increase the aggregate valuation of property in the Territory above the valuations returned by the Boards of Supervisors of the several counties. It is wholly a creature of statute and is of 'special and limited jurisdiction.

This is a writ of error'.to the Supreme Court of the State of Iowa, seeking reversal, of its judgment affirming the decree of the District Court of Woodbury County, quieting the land title of Claude F. Blumer, defendant in error,- as against the Iowa Railroad Land Company, plaintiff in error. 129 Iowa, 32.

Held: so far as we have been able to ascertain, that a charter thus obtained prior to the constitution of -1890 was subject to repeal or amendment unless such right was especially reserved in the act, and the provision of the constitution of 1890 which vested the power- in the legislature to -repeal or amend corporate charters expressly exempts from • its operation any charter *506 then existing and irrevocable, and was…

Held: in a series of decisions in. the. State of Minnesota, which were reviewed in Hale v. Allinson, that an;action could only-be maintained under, the laws of *525 Minnesota when brought by a creditor or creditors for the benefit of all creditors of the corporation, and the recovery was had for the purpose of making good any deficiency in the corporate assets for the payment of corporate debts; that the receiver could…

Held: that the erection of the viaduct therein was merely 3. change.of grade and that he ivas not thereby deprived of his property ; without due process of law nor was^the obligation of any contract impaired by the judgment of the Court of Appeals holding that the rule of the Elevated Railroad Cases did not apply in such a case. ■Muhlker v. Harlem, ' R. R. Co., 197 U. S. 544 , distinguished.' George W. Sauer, the…