Volume 212 — United States Reports

The facts, which involve the constitutional validity of an ordinance of the city of Knoxville fixing maximum. rates to be charged for water by the defendant water company, are stated in the opinion.

<p>Jurisdiction of this court to review judgments of conviction in criminal cases under clause 3 of § 5 of the act of March 3,1891, c. 517, 26 Stat. 827, as amended by the act of July 20, 1897, c. 68, 29 Stat. 492, depends on the sentence which can be imposed, and not on the crime charged in'the indictment; and where the Federal statute prescribes that the punishment shall be the same as that prescribed by the state law and under the state law the .punishment is less than capital a writ of erroy will not lie.</p> <p>The suggestion in the brief of counsel of the .unconstitutionality of the statute under which plaintiff in error was convicted, does not raise an issue involving the construction or application of the Constitution giving this court jurisdiction to review under § 5 of the act of March 3, 1891, c. 517, 26 Stat/ 827, when the-Contention presented has been heretofore adversely disposed of; nor does the assertion of errors of construction furnish a basis for jurisdiction under that statute.</p>

' The facts, which involve the validity of bonds issued by the petitioner, are stated in the opinion. The judgment of .'the District Court of Presidio County, rendered in March, 1893, and affirmed by the Supreme Court of Texas, in which the bonds in this case were held void, was a bar to plaintiff's action, and the court should have so instructed the jury. Lewis v. Brown Township, 109 U. S. 162, 168; Ball, Hutchings & Co. v. Presidio County, 88 Texas, 60.

Moyer v. Peabody, 212 U.S. 78 (1909), is a decision by the United States Supreme Court which held that the governor and officers of a state National Guard, acting in good faith and under authority of law, may imprison without probable cause a citizen of the United States in a time of insurrection and deny that citizen the right of habeas corpus.

The facts are stated in the opinion. By the proceedings in the Texas courts defendant has been subjected to the penalties of the act of 1899 by reason of an agreement made by another company, the old Waters-Pierce Company, with the Standard Oil Company, confining the business of those two companies to different parts of the IJnited States. This agreement wás made in 1878, many years before the act was passed.

<p>ERROR TO THE COURT OP CIVIL APPEALS POR THE THIRD SUPREME JUDICIAL DISTRICT OP THE STATE OP TEXAS.</p> <p>THE-facts are stated in the opinion.</p>

The facts are stated in the opinion. The receiver appointed by the state court was not in possession, and had no right to possession, of the property at the time when the order was made by the United States court for the appointment of a receiver. Shields v. Coleman, 157 U. S. 169; People’s Cemetery Association v. Oakland Cemetery Co., 24 Tex. Civ. App. 668; S. C., 60 S. W. Rep. 679; Hagan v. Lucas, 10 Pet. 400, discussed and distinguished.

. • The facts are stated in the opinion. So far as concerns interstate shipments of live stock, the whole matter is concluded by the judgment of the Federal court in the former litigation in Central Stock Yards Co. v. Louisville & Nashville R. R. Co., 192 U. S. 568, and that judgment is a bar to the relief sought in this case as to such interstate shipments.

Held: by the United-. States Circuit Court, in a case involving the same tax sale of the other half of the same unplatted tract. Ontario Land Co. v. Wilfong, 162 Fed.

Held: in regard to the Oklahoma Territory Oil Inspection Law, to be separable, and; even if. unconstitutional, not to affect the prohibitions contained in the statute against the use of oil not conforming to the standards fixed thereby. Under the circumstances of this case, this court will not hold that the Supreme Court of Oklahoma erred in judicially noticing a custom in the Territory to use coal oil in kindling fires.

Held: and said: “The intent of the defendant in obtaining possession of *203 the letters was material, and being material the defendant should have been permitted to testify as to his intent and motive.” The court, however, Mr. Chief Justice Shepard dissenting, held that the record showed that this error, in. excluding material evidence, did not harm the defendant, and should, therefore, be disregarded by the appellate…

<p>ERROR TO THE SUPREME COURT OF THE TERRITORY OF HAWAII.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. The defendant and the negligent winchman did not sustain. to each other the relation of master and servant in such a sense that the defendant is liable for the winchman’s negligence within the doctrine of respondeat superior.

The facts appear in the statement of Mr. Justice Harlan. Assuming, but not conceding, that the organization of the plaintiff was for the purpose of restraining competition, and enhancing prices, the defendants have no defense, under common-law considerations, to the action brought against them to recover for goods sold and- delivered.

<p>The bankruptcy court of the United: States is always open for the transaction of business whether the judge be personally present yr not; and, under §§ 574, 638, 828, Rev. Stat., and chap. II, § 2, of the Bankruptcy Act of July 1, 1898, c. 541, 30 Stat. 544, 545, clerks of the United States-courts are entitled to the per diem compensation for those days on which voluntary petitions in bankruptcy are referred to the referee during the absence of the judge. United States v. Finnell, 185 U. S. 236, followed; Owen v. United States, 41 C. Cl. 69; approved.</p>

Thomas was convicted of the murder of John Blair, and his punishment fixed at death.

<p>ERROR TO'THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL FROM AND IN ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.</p> <p>Plaintiffs filed their application for a trade-mark on June 12,1905,' in which it was recited that—</p> <p>“The trade-mark consists of a symbol composed of .the letters ‘AAA’ . . .. The tj'ade-mark is usually displayed on the goods, by. etching, stamping or otherwise marking the same úpon the blade of the saw, and by. inscribing same upon the packages containing such saws.”</p> <p>This .was amended August 30,1905, by adding the sentence—</p> <p>“The trade-mark is shown with the letters arranged in the form of a monogram.”</p> <p>The examiner suggested that the description of the trademark should be amended so as to read—</p> <p>“The trade-mark consists of a monogram composed of the letters ‘A.A.A.’”</p> <p>Plaintiffs declined to comply with the suggestion, and appealed from'the ruling of the examiner that such amendment should be made to the Commissioner of Patents, who, on February 20, 1906, overruled the decision of the examiner and held that the description was sufficient.</p> <p>April 27,1906, plaintiffs were notified, that their—</p> <p>“Application for the registration of a trade-mark for a symbol composed of the letters 'AAA/ for.saws of all kinds, filed June 12,1905, Ser. No. 7998, has been examined and passed for publication,' in compliance with section 6 of the act authorizing the registration of trade-marks, approved February 20, 1905. The mark will be published in the Official Gazette pf May 15, 1906.”</p> <p>The act of February 20,1905,. c. 592, § 1, 33 Stat. 724, provided that the applicant should file an application in writing, which should contain, among other things:'</p> <p>■ “A description of the trade-mark itself and a statement of the mode in which the same is applied and affixed to goods and the length of. time during which the trade-mark has been used. With this statement shall be filed a drawing of the trade-mark, signed by the. applicant or his attorney, and such number of specimens of the trade-mark, as actually used, as may be required by the Commissioner of Patents.”.</p> <p>.. This act was amended by the act of May 4, 1906, c. 2081, § 1, 34 Stat. 168, by inserting after the words “description of the trade-mark itself,” the words “ only when needed to express colors not shown in the drawing.”</p> <p>On June 21,1906, the Patent Office sent plaintiffs the following communication.:</p> <p>“Attention is directed to the act approved May 4,1906, providing for a description of the trade-mark itself only when needed to express colors not shown in the drawing.</p> <p>“Inasmuch as the trade-mark covered by this application cannot be registered until after July 1, 1906, when said act takes effect, applicant should direct the cancellation of the present description and of all of the- preamble to the statement following the words ‘have adopted for my use,’ and the substitution therefor of the following words: ‘the trade-mark shown in. the accompanying drawing</p> <p>’ “If colors form a material part of the mark, a brief reference thereto should follow.</p> <p>“Ah amendment as above indicated should be promptly filed to avoid, delay in the use of the certificate.”</p> <p>Plaintiffs refused to comply with this suggestion, and, on July 16,1906, the examiner declined to pass the application for registration.</p> <p>A petition was thereupon presented by plaintiffs to the Commissioner, seeking the overruling of the action of the examiner, and, on November 22, 1906, the petition was denied.</p> <p>An appeal was prosecuted to the Court of Appeals, which affirmed the decision of the Commissioner of Patents, and directed the clerk to “certify this opinion to the Commissioner of Patents, according to law.”</p> <p>An appeal and a writ of error were allowed.</p> <p>This court has jurisdiction of this case, which is not governed by the cases of Gaines v. Knecht, post, p. 561, and Frasch v. Moore, 211 U. S. 1. In order that a case may be brought here from the Court of Appeals of the District of Columbia, two conditions must concurrently exist: There must be a final judgment or decree, and a subject-matter defined by the statute must exist. Both these conditions exist in the case at bar. They did not exist in .the cases above cited, which are clearly distinguishable. In the Gaines case and Frasch case there was no final judgment or decree upon the matter sought to be reviewed, and there was therefore no statutory authority for bringing the cases to this court.</p> <p>' • Those eases are not authorities in this case also, because the decision in this case was final, and there is no other means by which appellant-and plaintiff in error can secure relief if it be denied here. The decision of the Commissioner, sustaining the ruling of the examiner, as affirmed , by the Court of Appeals, was final, and' binding upon the applicant. There is no. other proceeding known to the law than that which-has been adopted in coming to this court by. which these-actions may be reviewed. • ’ "</p> <p>When.the appeal was taken and -the. writ of error sued out, it was supposed that the case of Steinmetz v. Allen, 192 U. S. 543, was sufficient authority for the' proceeding'. That was a case brought here from the same tribunal and under the same section' of the statute, and in that case this court expressly held that it had jurisdiction. See also: Bernardin v. Duell, 172 U. S. 576; Butterworth v. Hoe, 112 U. S. 50. The cases cited by appellee and defendant in error can be distinguished.</p> <p>■ This court is without" jurisdiction-for two reasons: First. The judgment of the Court of Appeals is not final within the meaning of §,8 of-the act of February-9, 1893, 27- Stat. 436; Code Dist. Col., §233, which specifies-what judgments of that court may be reviewed by this court, on appeal or writ of error. The. manifest purpose of § 9’of the-Trade-Mark Act of February 20, 1905, -.33 Stat. 727, "was to place appeals to the Court of Appeals from decisions of the Commissioner ■ of Patents in proceedings ¿rising under applications for trade-marks, and also the judgments of that court upon such appeals, upon the same footing with, such appeals to and judgments thereof in.applications for patents-. See Frasch v. Moore, 211 U. S. 1, and Gaines v. Knecht, post, p. 561. Second. Because the matter in dispute is of no certain value and there-is not drawn in question “the validity of ... a statute of, or an authority exercised under the United States.”</p>

This case on the merits is reported in sub nomine Morrison v. Burnette, 154 Fed. Rep. 617.

. The facts are stated in'the opinion. The war with Spain was not against Cuba nor against the Cuban people, nor against aliens domiciled or found within its borders and there engaged in the peaceful pursuits of commerce. It was a war solely against Spain, undertaken by the United States because of the abhorrent conditions which had been brought about in Cuba by Spain and which could not longer be endured.

Defendant in. error brought his action in the Circuit Court of Kenton County, Kentucky, against the plaintiff in error to recover the value of twenty packages of whisky which he had delivered to the company at Covington, Kentucky^ on March 10, 1904, to carry C. O. D. to Oswego, Labette County, Kansas. Each package was consigned tó a separate consignee.

Held: that one holding a purse net li- . cense from the Stale of Washington cannot be prosecuted for using such net on the Washington side of the Columbia River in the courts of Oregon for violating the statutes of that State prohibiting the use of such nets. ■ - Qucere, whether such person could be prosecuted in the courts of Oregon for using such nets on the Oregon side of the river; and quiere whether, where concurrent…

Held: had been illegally withdrawn, and the right to which was at issue in the suit. Merely because the power to strike out an answer and enter a default, which was exerted by the court below in this case, was authorized by the ninth section of the statute furnishes no ground for taking this case out of the ruling in Hovey v. Elliott, if otherwise controlling.

Held: negotiations had supervened between the bank and Fritzlen, having reference to the liability of the latter for the note or notes which the bank had acquired from Elmore & Cooper and the commission company.

This is an original appücátion to this court for a rule, directed to the District Judge of the United States for the Northern District of Texas, directing him, and also the Circuit Court of the United States for that district, .to show cause why a mandamus should not issue, commanding that judge and that court, and each of them, to remand a certain action at law to the District Court of Dallas County, Texas, and to desist from exercising any further jurisdiction in the…

This is an appeal from a judgment of the Supreme Court, of the Territory of Arizona, affirming a judgment of the District Court of Yavapai County, in that Territory, quieting the title to several mining claims involved in the action. The appellant brought the action for such purpose under the provision of a statute permitting it, against Morrison, thé appellee, together ¡with Elmer R. McDowell and Thomas D. Bennett.

■ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. The defendant in error, hereafter called,the plaintiff, commenced this action against the plaintiff in error, hereafter called the defendant, in the Supreme Court of the District of Columbia to' recover damages for the refusal of the defendant to perform a written agreement made between the plaintiff and the defendant and his. wife, by which the defendant agreed tó convey certain premises on Brightwood avenue, or…

Held: that it had not complied with the statutes of the State of Washington in regard to the building of such proposed boom,, and it therefore had no right to build it, and it enjoined the defendant from so doing, and directed judgment to be entered to that effect.

This case .comea here upon appeal by the railroad commission, which was defendant below, from a decree of the Circuit Court.of the United States for die Eastern District of Louisiana, enjoining the enforcement- of certain rates prescribed by the • railroad commission of that State, fór use by the appellee telephone company therein.

• The facts are stated in the opinion, The Circuit Court erred in holding that it had no jurisdiction because the complainants failed to prove.any joint act of two or more of the defendants tending to procure the fraudulent allowance of their claims. The gravamen of the charge in the bill was that the defendants conspired with the administrator and thereby procured the allowances which otherwise would not have been made.

Appellant and appellee were respectively plaintiff and defendant in the courts below, and wé shall so (designate them. Plaintiff brought this suit in the District Court of Kay County, Oklahoma, to be declared the owner of the legal title, to lots 1 and 2 and the E. \ of'the N. W. {, section 18, township .26 N., R. 2 E.‘, Indian Meridian, and to require a conveyance of the land to him by defendant.

<p>The time within which a writ of error may be brought to review an adjudication of bankruptcy of the District Court is two years as regulated by §,§ 4, 5, of the act of March 3,1891, c. 517, 26 Stat. 826, 827, and not thirty days, the time fixed for appeals by general order of this court' in bankruptcy, No. 36. Allen v. Southern Pacific Co., 173 ' U. S. 479.</p> <p>A bill of exceptions is not necessary when it adds nothing to the record. C. H. Nichols Lumber Co. v. Franson, 203 U. S. 278.</p> <p>The objections to a double resort to review decisions of the lower courts to both the Circuit Court of Appeals and this court do not apply where the proceeding in the Circuit Court of Appeals is merely revisory as it is under § 246 of the Bankruptcy Act; and a merely interlocutory decision in such a proceeding cannot prevent a case otherwise proper to be brought here, frotó being taken to this court after final judgment.</p> <p>Provable claims, on' which a petition to have the debtor adjudicated a bankrupt under § 596 of the Bankruptcy Act can be based, are claims that can be proved in the proceedings, and a liquidation may be ordered on the filing of the petition to ascertain whether the petition is based on a provable claim.</p> <p>A provable claim may be- based on the breach.of an express warranty. ■</p>

ISLANDS. The facts are stated in the. opinion. ---The Land Registration Court had jurisdiction of the subject-matter under act No. 496, §§ 2,19; and its decision was legal, just arid in conformity with the protection of private property provision of the Treaty of Paris. Public-Land Act, No. 926. This court has jurisdiction and writ of error is the proper method. The proceeding is one in rem and not in personam as it deals with titles to real estate.

<p>ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.</p> <p>The facts are stated in the opinion.</p>

Held: aithough the owners are not personally responsible on principles óf agency or otherwise, is carried further here than in England. The China, 7 Wall. 53 ; The Barnstable, 181 U. S. 464 , 467, 468; Homer-Ramsdell Transportation Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406 , 413, 414. See The Blackheath, 195 U. S. 361 , 366.

<p>ERROR TO THE CIRCUIT COURT OP APPEALS POR THE SECOND CIRCUIT.</p> <p>The. facts áre stated in thé opinion.</p>

Held: in this case, not to have been prejudicial error. The facts are stated in the opinion. Mr. Alisten G. Fox arid' Mr. John D. Lindsay, with whom Mr.-Albert H. Harris was on the-brief, for plaintiff in error: Congress cannot under the Constitution impute to plaintiff in error the commission of a criminal offense and subject- it to criminal prosecution and punishment by reason of the matters set forth in the indictment.

<p>New York Central R. R. Co. v. United States, ante, p. 481, followed as to constitutionality of the Elkins act of February 19, 1903, c. 708, 32 Stat. 847-, and as to when offenses of giving rebates in violation of the Interstate Commerce act are complete.</p> <p>The Elkins act applies to rebates paid after it went into effect although ■ paid in pursuance of ail agreement, and on shipments, made prior to that date,- the agreement being illegal when made.</p> <p>An indictment which definitely sets forth the elements of the offense of which it was intended to charge the accúsed is sufficient; and in this court only substantial defects in the indictment are available to reverse á judgment of conviction. Connors v. United States, 158 U. S. 408.</p>

<p>Under the Elkins Law of February 19, 1903, c. 708, 32 Stab. 847, a carrier can be prosecuted for the offense of rebating where it is a party to,a joint rate although it has not filed or published the same."</p> <p>While criminal statutes are not to be enlarged by construction, and a crime must be clearly defined in its terms, they are to be reasonably construed with a view to effecting the purpose of their enactment.</p>

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

<p>APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>The facts are stated in the opinion.</p> <p>The custom of express companies to issue such passes as are herein in question was one of long standing and presumably known to Congress. There is no. record of any protest against it to or by the Interstate Commerce Commission, or to Congress, nor any suggestion in any speech or report that it was supposed to be detrimental to the public interest, or that it Was intended to be prohibited. There is no direct or express prohibition in the statute. On the contrary, the Interstate Commerce Act recognizes, and always has recognized that the granting of similar privileges to the officers and employés of railroad companies is consistent with sound public policy. See § 22- of the act. And § 1, as amended June 29, 1906, expressly exempts officers and employés of common carriers and their families, from the prohibition against free passenger transportation, and declares that the provision shall not prohibit the interchange of passes for officers, agents and. employés of common carriers and their families. The same section declares that the term common carrier shall include express companies.</p> <p>The reason for making these exemptions in favor .of the employés of common carriers, and members of their families, is obvious. Steamboat New World v. King, 16 How. 469, 473; Express Cases, 117 U. S. 1; B. & O. S. W. Ry. Co. v. Voigt, 176 U. S. 498.</p> <p>The proviso in § 1 for “the interchange of passes for the officers, agents and employés of common carriers, and their families," relates not only to passenger passes, but was evidently used as an introduction to an amendment offered after the bill was reported, for the purpose of extending the privilege of interchanging employés’ passes to all common carriers subject to the act. If not it was unnecessary, for § 22 already covered the case of railroad passes for officers and employés.</p> <p>As to the office of a proviso, see: Georgia Banking Co. v. Smith, 128 U. S. 174, 181; Interstate Commerce Commission v. Baird, 194 U. S. 25, 36, 37; Chesapeake & Potomac Tel. Co. v. Manning, 186 U. S. 238, 242; Baggaley v. Pittsburg & Lake Superior Iron Co., 90 Fed. Rep. 638.</p> <p>The failure to specifically mention express companies in § 22 does not opérate to exclude them from the privilege of carrying the personal packages of their employés, free or of exchanging employés’ passes with other common carriers. That section is only illustrative and riot exclusive. When that section was adopted'express companies were not subject to the act and were therefore not named, but when they were brought in' by the1 amendment of June 29, 1906, they came within the spirit and principle of § 22, and also within the spirit and principle of the proviso in § 1, that this provision should not'prohibit the interchange of passes for the officers, agents and employés of common carriers, and their families, and within the spirit of the exemption.in that section of the employés of railroad companies, and their families, from the prohibition against free passenger transportation. Interstate Commerce Commission v. Baltimore & Ohio Railroad Company, 145 U. S. 263, 278.</p> <p>The Interstate Commerce Act does not purport to regulate all common carriers nor the carriers that are subject to the act in all of their relations. Section 6 declares that wherever the word “ carrier ” occurs in this act, it shall be held to mean common carrier. But the service which the express companies perform for the holders of employés’ passes is not that of common carrier, because it is gratuitous, and the holder is required to assume all risk of loss or damage from whatever cause, to the property carried. Schouler on Bailments (3d ed.), §343; Northern Pacific Ry. Co. v. Adams, 192 U. S. 440; Baltimore & Ohio S. W. Ry. Co. v. Voight, 176 U. S. 498; Quimby v. Boston & Maine R. R., 150 Massachusetts, 365.</p> <p>The free carriage of persons or property may be a- cloak for a rebate, or, under certain circumstances, an unlawful discrimination, in violation of the statute. But it is impossible, for the Government to maintain that the issuing of employes’ passes in good faith by express companies is unjust discrimination or unreasonable advantage, within the prohibition of the statute, in the face of its explicit declarations concerning passes issued by railroad companies to the same class of persons, for the same reasons, and under similar circumstances.</p> <p>• The case of the express companies is not substantially different from that of the railroad companies, for they are engaged in “a sort of partnership relation in carrying on a common carrier business,” and the court should not make a distinction between them in the absence of clear and specific language in the statute, especially as the practice which the Circuit Court has enjoined was lawful at common law, is beneficial to the fexpress companies in the conduct of their business, and is not injurious to the public.</p> <p>The spirit as well as the letter of a statute must be respected, and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent. Durousseau v. United States, 6 Cranch, 307, 314. See also Paquete Habana, 175 U. S. 677, 685; Glover v. United States, 164 U. S. 297; C., N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184, 197; Interstate Commerce Commission v. Baltimore & Ohio Railroad Co., 43 Fed. Rep. 37.</p> <p>Transportation under franks by express companies constitutes an unjust discrimination and subjects other shippers to an:unreasonable prejudice within the meaning of §§ 2 and 3 of the Interstate Commerce Act. The term “under substantially similar circumstances and conditions” in § 2 refers to the circumstances and conditions, relating to the carrriage of the goods and not to the person of the sender. Re Persons Free or at Reduced Rates by B. & M. R. R. Co., 5 I. C. C. Rep. 69; Harvey v. Louisville & Nashville R. R. Co., 5 I. C. C. Rep. 153. The effect of the Interstaté Commerce Act was to prohibit the granting of free transportation except as provided by § 22. Ex parte Koehler, 31 Fed. Rep. 315; Re Charqe to Grand Jury; 66 Fed. Rep. 146.</p> <p>The portions of §§ 2 and 3 relating to unjust discrimination were modeled from the English tariff act, and in construing them our courts have followed the interpretation of the English courts. Interstate Comm. Comm. v. Baltimore & O. R. R. Co., 145 U. S. 263; I. C. C. v. Alabama Midland R. Co., 168 U. S. 144; Texas & Pacific Ry. v. I. C. C., 162 U. S. 197. Construing similar sections of the English act, the English courts have unanimously held that the differences in circumstances and conditions relate only- to the carriage of goods and the nature and character of the service rendered by the shipper. Gt. Western R. Co. v. Sutton, L. R. & H. L. 226; Denaby Main Colliery Co. v. Manchester Ry. Co., 11 App. Cas. 97.</p> <p>The provisions of the Interstate Commerce Act require absolute and uniform adherence to the published schedule, and when a carrier has once established, published and filed a rate there can be no departure therefrom which has resulted to the extent of granting free transportation to their own officers and employés and to the officers and employes of other carriers in. exchange for like favors from those carriers. See § 6, act June 29,1906; § 1, Elkins act as amended by act June 29,1906; Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Armour Packing Co. v. United States, 209 U. S. 56.</p> <p>The only section of the Interstate Commerce Act which relates in terms to the carriage of property at free or reduced rates is § 22, 25 Stat. 857, 862, and there is nothing in it which by any possible construction can be taken as covering the granting and interchanging of franks by the express companies charged here. The prohibition of the Elkins act is directed at discriminations and advantages of every kind. The .original act of 1887 prohibited “unjust” discriminations and “undue” and “unreasonable” prejudices and disadvantages. The change in language in the amendatory legislation' shows that Congress was intentionally .broadening the scope of .the prohibitions against the granting of advantages and discriminations. This ■ is. shown by the history of the interstate commerce legislation, and of the times and the evil which the amendatory legislation -was intended to remedy. N. Y., N. H. & H. R. R. Co. v. I. C. C., 200 U. S. 361; Armour Packing Co. v. United States, 209 U. S. 56. In passing the Elkins act Congress' undoubtedly had in mind decisions of the courts holding that a criminal prosecution could not be maintained under a statute defining with such uncertainty the offense prohibited, — the original statute being *o drawn as to leave for a determination of fact in every.' case whether or not the discrimination was an unjust one. C. & N. W. Ry. v. Dey, 35 Fed. Rep. 866; Tozer v. United States, 52 Fed. Rep. 917; I. C. C. v. B. & O. R. R. Co., 145 U. S. 263. When Congress drew the provision requiring adherence to established rates and prohibiting the giving of advantages and discriminations, and omitted the words, “undue,” “unreasonable” and “unjust,” its intention was to make the stat-' ute definite and certain and capable of practical enforcement, and to put an end to favoritism and all evasions.</p> <p>There is no justification of the acts complained of to be found in the anti-pass provision oí § 1 of the Hepburn act, 34 Stat. 584. That section relates manifestly to the transportation of persons alone and not to the carriage of goods. The term ‘ ‘ frank, ’ ’ applies to the transportation of property, while ‘ ‘ pass, ’ ’ ‘ applies to the transportation of passengers. The proviso manifestly related only to railroads, and when, later, express companies were. included in the law, the proviso remained unchanged and escaped attention; but this’is not a manifestation of án intention on the part of Congress to extend the pass interchange to franks for the carriage of property beyond the plain meaning and limitation of all the rest of the .section. This is a proviso which must be construed as carving something out of the previous enactment and restraining its generality. The exception carved out is an exception from a proviso which is limited to the transportation of passengers and therefore the same limitation must be placed upon the proviso. United States v. Dickson, 15 Pet. 141; Savings Bank v. United States, 19 Wall. 227; Georgia Banking Co. v. Smith, 128 U. S. 174; White v. United States, 191 U. S. 545.</p>

Plaintiff’s injury was not due to. any negligence .on the part of the railway company. A plaintiff, in the first instance, must show negligence on, the part of the defendant. Thenegligence of a defendant, as stated in that' case, cannot be inferred from a presumption of care on the part of the person injured. A presumption in the performance of duty attends the defendant as well as the person injured. It must be overcome "by direct evidence.

The facts are stated in the opinion. - The statute under which the petitioner was prosecuted applies only to murders committed by Indians upon reservations within States. The Federal courts have no jurisdiction of offenses committed' by citizen Indians. United States v. Kagama, 118 U. S. 375; State v. Smokalen, 79 Pac. Rep. 603; United States v. Thomas, 151 U. S. 585; State v. Campbell, 55 N. W. Rep. 553.

<p>WRIT OP ERROR TO THE SUPREME COURT OP TEXAS.</p>

<p>Appeal from judgment of the Court of Claims fixing amounts to be paid ■ from an Indian fund dismissed for want of jurisdiction. .</p>

<p>ERROR TO THE SUPREME COURT OF THE CANAL ZONE.</p>

<p>APPLICATION FOB WBIT OF HABEAS COBPUS.</p>

<p>Leave to file petition for mandamus to compel Circuit Court to retain jurisdiction of a condemnation proceeding refused.</p>

<p>Appeal from decision of the Circuit Court denying a petition for habeas corpus when petitioner was detained under power of a state court dismissed for want of jurisdiction. There was no certificate of probable cause for allowing the appeal in conformity with the act of March 10, 1908, c. 76, 35 Stat. 40.1</p>

<p>WRIT OP ERROR TO THE CIRCUIT COURT OP THE UNITED STATES POR THE DISTRICT OP MONTANA.</p>

<p>WRIT OP ERROR TO THE SUPREME COURT OP THE PHILIPPINE ISLANDS.</p>

<p>Judgment of the state court to effect that surety on bond of the depositary of a receiver in bankruptcy which ran, as required by law, to the United States, was not entitled to priority in distribution of assets of the depositary, affirmed without opinion.</p>

<p>The judgment of the admiralty court dismissing for want of jurisdiction a libel against a vessel for damages to a pipe on the bottom of the Hudson River, affirmed without opinion.</p>

<p>Appeal dismissed for want of jurisdiction on authority of Kansas City Northwestern Railroad Co. v. Zimmerman, 210 U. S. 336.1</p>

<p>ERROR TO THE SUPREME COURT OF MISSISSIPPI.</p>

<p>APPPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR ■ THE SOUTHERN DISTRICT OF NEW YORK.</p>

<p>PETITION FOR MANDAMUS AND MOTION FOR LEAVE TO FILE THE SAME.</p> <p>Thére was no appearance for any of the other parties.</p>

<p>Writ of error to review decision of Court of Appeals of the District of Columbia on appeal from Commissioner of Patents, 27 App. D. C. 530, dismissed on authority of Frasch v. Moore, 211 U. S. 1.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.</p>

<p>Judgment of the Circuit Court sustaining demurrer to indictment for conspiracy in alleged violation of §§ 5508, 5509, Rev. Stat., affirmed, without opinion, on the authority of Hodges v. United States, 203 U. S. 1.</p>

<p>Writ of error to review a judgment of conviction for liquor selling without having first paid the special Federal tax therefor, dismissed for ' want .of jurisdiction. Plaintiff in error contended that the indictment was found on evidence improperly obtained.</p>

<p>A judgment of the District Court of the United States, affirming , an . order of deportation of a Chinese person, affirmed without opinion. Plaintiff in error claimed to be entitled to trial by jury and that he had been denied due process of law.</p>

<p>ERROR TO THE DISTRICT COURT OP THE UNITED STATES POR PORTO RICO.</p>

<p>Petition for leave to file petition for mandamus tp the Circuit Court of Appeals directing it to reinstate an appeal from the Circuit Court which had already been decided by such Court of Appeals, denied.</p>

<p>ERROR TO THE SUPREME COURT OP THE TERRITORY OP HAWAII.</p>