Volume 217 — United States Reports

Maryland v. West Virginia, 217 U.S. 1 (1910), is a 9-to-0 ruling by the United States Supreme Court which held that the boundary between the American states of Maryland and West Virginia is the south bank of the North Branch Potomac River. The decision also affirmed criteria for adjudicating boundary disputes between states, which said that decisions should be based on the specific facts of the case, applying the principles of law and equity in such a way that least disturbs private rights and title to land.

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

Held: simply ‘ certificates of location. By Act 106 of 1888 (Laws La., 1888, p. 171) Act 23 of 1880 was repealed, and by § 2 of the repealing*act it was provided “that the act or agreement made between Louis A. Wiltz, governor of the State, and John : McEnery, made March 20, 1880, purporting to be under the authority of said Act No. 23, is hereby abrogated and terminated.” This repealing act took effect January 1, 1889.

<p>ERROR TO THE SUPREME COURT OE THE STATE OP ARKANSAS.</p> <p>The facts, which involve the constitutionality of the anti-drumming law of Arkansas of 1907, are stated in the opinion.</p> <p>The act is unconstitutional as it deprives appellant of the liberty and the equal protection of the laws guaranteed by the Fourteenth Amendment.</p> <p>It is an unlawful restriction upon the liberty of the citizen. The guaranty of life, liberty and the pursuit of happiness, secures to the citizen the right to pursue any calling not injurious to the public and to protect him against all interference with his business not in the lawful exercise of the police power. The police power is limited to those things essential to the safety, health, comfort and morals of the community, and any enactment seeking to restrict the liberty of a citizen in matters not falling within the scope of the police power as thus defined, is unconstitutional and void.</p> <p>The occupation of drumming or soliciting for legitimate forms of business is not merely a lawful, but a most important, calling.' In this particular instance, the appellant is earning his livelihood by drumming and soliciting for his own boarding house.</p> <p>This is not a case of an occupation tax. The drummers are not taxed; they are forbidden altogether to exercise their callings. As to the right to pursue any lawful business, see Butcheré’ línion Co. v. Crescent City Co., Ill U. S. 757; Mugler v. Kansas, 123 U. S. 623; Lawton v. Steele, 152 U. S. 137; Allgeyer v. Louisiana, 165 U. S. 589; Lochner v. New York, 198 U. S. 57. The principles announced by this court have frequently been applied by the state courts. See Bassett v. People, 193 Illinois, 334;-62 N. E. Rep. 219, 220; Bailey v. People, 190 Illinois, 28; People v. Gillison, 98 N. Y. 108; 17 N. E. Rep. 343; Ritchie v. People, 155 Illinois, 88; 40 N. E. Rep. 454; Ex parte Jacobs, 98 N. Y. 105; Ex parte Whitewell, 98 California, 73; 32 Pac. Rep. 872; People v. Beattie, 89 N. Y. Supp. 193; State v. Peel Splint Coal Co., 36 W. Va. 856; State v. Goodwill, 33 W. Va. 179; Bracewell v. People, 147 Illinois, 66; People v. Warden, 157 N.’ Y. 116; 51 N. E. Rep. 1006; 2 Hare’s Am. Law, 777; Cooley’s Const. Lim., 6th. ed., 738.</p> <p>The claim that this apt merely prevents appellant from soliciting custom for his boarding house, and does not interfere with his right to conduct it, begs the question. The right to advertise a business and to solicit custom is essentially an- incident to the right to do business. See Robbins v. Shelby Taxing District, 120 U. S. 489, which has been approved in Asher v. Texas, 128 U. S. 129; Stoutenburgh v. Hennick, 129 U. S. 143; Brennan v. Titusville, 153 U. S. 289; McCall v. California, 136 U. S.-104; Caldwell v. North Carolina, 187 U. S. 622; Gunn v. White Sewing Machine Co., 57 Arkansas, 24; Hurford v. State, 91 Tennessee, 673; 20 S. W.'Rep. 201; Coit v. Scott, 98 Tennéssee, 258; 39 S. W. Rep. 1; Clements v. Casper] 9 Wyoming, 497; 35 Pac. Rep. 473; Overton v. State, 70 Mississippi, 559; 13 So. Rep. 227; Pegues v. Ray, 50 La. Ann. 579; 23 So. Rep. 904; McLaughlin v. South Bend, 126 Indiana, 472; 26 N. E. Rep. 185; Bloomington v. Bourland, 137 Illinois, 536; 27 N. E. Rep. 692; Toledo Com. Co. v. Glenn Mfg. Co., 55 Ohio St. 222; 45 N. E. Rep. 197; Mershon v. Pottsville Lumber Co., 187 Pa. St. 16; 40 Atl. Rep. 1018; Simons Hdw. Co. v. McGuire, 39 La. Ann. 850; 2 So. Rep. 592; State v. Agee, 83 Alabama, 112; 3 So. Rep. 856; Stratford v. Montgomery, 110 Alabama, 626; 20 So. Rep. 129; State v. Braceo, 103 N. C. 350; 9 S. E. Rep. 404; Wrought Iron Range Co. v. Johnson, 84 Georgia, 758; 11 S. E. Rep. 233; Emmons v. Lewiston, 132 Illinois, 382; 24 N. E. Rep. 58; State v. Rankin, 11 S. Dak.’148; 76 N. W. Rep. 299; Ames v. People, 25 Colorado, 511; 56 Pac. Rep. 725; Ex parte Rosenblatt, 19 Nevada, 441; 14 Pac. Rep. 298; Fort Scott v. Pelion, 39 Kansas, 766; 18 Pac. Rep. 954; State v. Hickox, 64 Kansas, 654; 68 Pac. Rep. 35; Talbutt v. State, 39 Tex. Crim. 65; 44 S. W. Rep. 1091; French v. State, 42 Tex. Crim. .224; 58 S. W. Rep. 1015; State v. Hanaphy, 117 Iowa, 18; 90 N. W. Rep. 601; Adkins v. Richmond, 98 Virginia, 101; 34 S. E. Rep. 967; Stone v. State, 117 Georgia, 296; 43 S. E. Rep..740; Commonwealth, v. Pearl Laundry Co., 49 S. W. Rep. 28; Wagner v. Meakin, 92 Fed. Rep. 76; In re Tinsman, 95 Fed. Rep. 648; In re Kimmel, 41 Fed. Rep. 775; In re Houston, 47 Fed. Rep. 539; In re Mitchell, 62 Fed. Rep. 576; In re Hough, 69 Fed. Rep. 330; Ex parte Loeb, 72 Fed. Rep. 657; Louisiana v. Lagarde, 60 Fed. Rep. 186; Ex parte Green, 114 Fed. 959; Delamater v. South Dakota, 205 U. S. 100; People v. Armstrong, 73 Michigan, 288.</p> <p>The statute cannot be justified on the principle that it applies only- to persons traveling upon railroads. Passengers who avail themselves of their services do not surrender their liberty as citizens; nor can the act be justified on the ground that it tends to secure the comfort. of other passengers. Cooley’s Const. Lim., 6th ed., 510-518.</p> <p>Under the common law, to solicit a person’s patronage for a hotel or boarding house was not a crime, and therefore it is not within the power of the legislature to make such use of the right,, of free speech an offense.</p> <p>The act also deprives the citizen of the equal protection of the law. It applies only to the keepers of hotels, lodging, eating and bath houses, among pursuits open to all the world. It applies also to medical practitioners; but as their vocation is one which concerns the public health and which is not pursued as of right, but only by leave of the State, they are legitimately subject to police regulation, and for the purposes of this case, they may be dismissed from our consideration.</p> <p>Acts which single out one class of citizens and iihpose upon them burdens or restraints not imposed upon others, can only be justified by inherent differences. If they are merely arbitrary, they deny to the citizen the equal protection of the law guaranteed by the Fourteenth Amendment. The equal protection of the laws is a pledge of the protection of equal laws. See Yick Wo v. Hopkins, 118 U. S. 368. The requirement of equal laws does not exclude classification, but the classification must not be arbitrary. It must be based on reason. Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U. S. 150; Atchison, Topeka & Kansas R. R. v. Mathews, 174 U. S. 96; Railroad Tax Cases, 13 Fed. Rep. 733; Walley’s Heirs v. Kennedy, 2 Yerger, 554; 24 Amer. Dec. 512; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Connolly v. Union Sewer Pipe Co., 184 U. .8, 555. See also State v. Conlon, 65 Connecticut, 478; 33 Ati. Rep. 521; Millett v. People, 117 Illinois, 284; 7 N. E. Rep. 635; Ritchie v. People, 155 Illinois, 88; 40 N. E. Rep. 456; Frorer v, People, 141 Illinois, 171; 31 N. E. Rep. 397; Bracer,We Coal Co. v. People, 147 Illinois, 66; 35 N. E. Rep. 63; Dobbins v. Los Angeles, 195 U. S. 236.</p> <p>This court has of late refused to set aside a number of state laws on the ground that they were in conflict with the equality clause; but it seems that the case now presented shows an oppressive and inexcusable violation of the equality clause, and that the act should be held unconstitutional in so far as it applies to keepers of boarding houses.</p> <p>The statute is a police regulation and clearly within the power of the State. The State has the inherent power to make all laws necessary for the protection of the health, safety, morals and comfort of its citizens and to promote the public convenience and general welfare.</p> <p>The rights of property and liberty even, guaranteed by the Constitution against deprivation without due process of law, are subject to such reasonable restraints under the police power as the common good or general welfare may require. It is within the province of the legislature to declare the public policy and it has broad discretion to determine what the public interests require and what measures are necessary for their protection.</p> <p>The purpose of the act is apparent. It was to promote the comfort of the public traveling upon railroad trains in the State, and especially of passengers journeying to Hot Springs, where the halt, the lame, the sick and diseased of the earth, pain-laden, come to seek relief from their burden of suffering, in the justly world-famed healing waters, and protect them from annoyance from the insistent, harassing, persistent and continuous solicitations and importunities of the pestiferous drummer.who made himself an insufferable nuisance.</p> <p>The act was necessary; was within the power of the lawmaking body and is a wholesome regulation. McLean v. Arkansas, 211 U. S. 546; Gundling v. Chicago, 177 U. S. 183; Jacobson v. Massachusetts, 197 U. S. 11; Adair v. United States, 208 U. S. 172; Lochner v.'New York, 198 U. S. 45, 53, 56; Mugler v. Kansas, 123 U. S. 623; In re Kemmler, 136 U. S.' 436; Crowley v. Christenson, 137 U. S. 86; In re Converse, 137 TJ. S. 624; Chicago, Burlington & Quincy By. v. Drainage Commissioners, 200 Ü. S. 584; Bacon v. Walker, 204 U. S. 311. See also Ohio Oil Co. v. Indiana, 177 TJ. S. 190; Clark v. Nash, 198 TJ. S. 361; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527; Offield v. N. Y., N. H. & H. R. R. Co., 203 TJ. S. 372; Plessy v. Ferguson, 163 TJ. S. 537.</p> <p>Railroads are vast enterprises, great highways of commerce, public highways, that are permitted to be organized and exist for the public convenience and benefit and are subject to such regulation as the public good may require. Donovan v. Pennsylvania Co., 199 TJ. S. 279, 293, 296; ■Cherokee Nation v. Southern Kansas Railway Co., 135 TJ, S- 641, 651.</p> <p>The hotel drummer and hackman have long bson regarded as belonging to that class of persons whose occupation or business may be regulated for the ; uNb good und the railroad companies themselves have too ■ >¡:,bx to pronibit drumming or soliciting for hotels. bo,.,roí op be fjses and hack lines Upon their trains and depot plat» or»w St. Lords, I. M. & S. Ry. v. Osborn, 67 .Arkansas, 399; ndñgan v. State, 31 Arkansas, 51; Lindsay v. é.rmiston. ?0~ <* i&hamu»; 261; Donovan v. Pennsylvcunia Co., 1© TJ. L. 272 i loQuliian on Municipal Ordinance, §§28; 1G4.'Eayr<:■. w NUNC,, B4 Arkansas, 552. ”</p> <p>The act does not deny plaintiff the equal protection of the law. The State has the power of classification in legislation, and as this court has said, “may distinguish, select and classify objects of legislation, and necessarily the power must have a wide range of discretion.” Magoun V. III. Trust & Savings Bank, 170 U. S. 283; Farmers’ & Merchants’ Ins. Go. v. Debney, 189 U. S. 301; Orient Ins. Co. v. Daggs, 172 U. S. 557; Bacon v. Walker, 204 U. S. 311; McLean v. Arkansas, 211 U. S. 546; Ozan Lumber Co. v. Union County Bank, 207 ü. S. 256; New York, N. H. & H. By. Co. v. New York, 165 U. S.. 268; Clark v. Kansas City, 176 U. S. 114; American Sugar Ref. Co. v. Louisiana, 179 U. S. 89; Pacific Ex-press Co.'y. Seibert, 142 U. S. 339; Mo., Kan. & Texas By. Go. v. May, 194 U. S. 276.</p> <p>This law operates alike upon all whom it affects and. equal protection is not denied where the law operates alike upon all persons similarly situated. McLean v. Arkansas, 211 U. S. 546; New York v. Van De Carr, 199 U.,S. 552; Western Turf Association v. Greenburg, 204 U. S. 359; Bacon v. Walker, 204 U. S. 311; Watson v. Nervin, 128 U. S. 578; State y. Schlemmer, 42 La. Ann. 8; State v. Moore, 104 N. C. 714; Ex parte Swann, 96 Missouri, 44; Barbier v. Connolly, 113 U. S. 32; Soon Hing v. Crawley/ 113 U. S. 709; Hayes v. Missouri, 120 U. S. 68; Minneapolis & St. Louis By. Co. v. Beckwith, 129. TJ. S. 26; Ky. By. Tax Cases, 115 U. S. 321; Magoun v. III. Trust A Savings Bank, 170 U. S. 282.</p> <p>Statutes are presumed .tó be constitutional and it is the duty, of the courts in testing their validity to resolve all ¿oubts in favor of legislative action. Mo., Kan. & Tex.' Ry. Co. v. May, 194 U. S. 267McLean v. Arkansas, supra.</p>

Held: within the meaning of the Fourteenth Amendment, to deprive the taxpayer of his property without due process of law or to deny him the equal protection of the laws; and that the Federal court cannot interfere with the enforcement .of the statute simply because it may disapprove its terms, or question the wisdom of its enactment, or because it cannot be sure as to the precise reasons inducing the State to enact it.

The only question to be determined in this case relates to the ownership of fifty shares of preferred stock in the Philip Carey Manufacturing Company, a corporation of Ohio. On or about May 13th, 1905, Richard Fritz, the owner of such shares, placed the certificate for them in'the hands of a member of the partnership of Holzman & Co., brokers, with or through whom Fritz had some dealings.

The facts, which involve the constitutionality under the commerce clause of the Constitution of the United States of a regulation of the Railroad Commission of Arkansas as to delivery of freight cars, are stated in the opinion.

Held: That, differing from the ancient Spanish-law, the modern Spanish law did not deprive an owner of property of the right, because a suit was brought against him concerning the same, to dispose of the property pendente lite. Pp. 303, 364.

The facts, which involve the liability to attachment of cam used in interstate commerce, are stated in the opinion. The cars and funds were subject to attachment and garnishment. The rolling stock of railway corporations is personal property, over which they have the power of alienation, and is subject to seizure, when not in actual use, by attachment or execution, or other valid process, the saíne as other personal property. Boston C. M. Ry.

The facts, which involve the amount of compensation due for transportation of mail by a railroad company over a railroad constructed in part by grant of land from the Government, are stated in the opinion.

The facts are stated in the opinion. The market value of the “locus,” the land taken for this street at the time of the taking, was 160,000. Consequently, the owners n: fee simple of the land unencumbered were entitled to .;er in this proceeding $60,000. Boom Company v. Patterson, 08 U. S. 403.

. The facts, which involve the constitutionality of a statute of the ’State of Nebraska requiring railroad companies to make switch connections with grain elevators under certain conditions, are stated in the opinion. The Nebraska statute in terms, and "as construed by the state court, operated to take the property of- the railway company for a private use, without its consent, and without compensation, in violation of the Fourteenth Amendment.

EBROB TO TM,' i.'OÜBT Oí? APPEALS OF THE STATE OF GEORGIA. The feeta -are stated in the opinion. Ag to tin juBrsdiclion': Whether or not a case is made in the state court, fur removal, is a Federal question. Gordon v. Longest, 10 Pet. 97; B, & O. By.

Held: or authority exercised under, the Constitution. If the title of plaintiffs in error were protected by the treaty, still the suit did not arise thereunder, because the controversy in the state court did not involve the construction of the treaty, but the validity of the *231 title of Mexican and Spanish grants prior to the treaty.

The facts are stated in the opinion. The trial court was without jurisdiction of any act.alleged in the indictment, and of any act proved to have been committed.

The facts, which involve the construction of the decree of the Circuit Court in 29 Fed. Rep. 546, as affirmed by this court in the case of Joy v. St. Louis, 138 U. S. 1, are stated in the opinion.

<p>Á party who as defendant in an equity case has successfully asserted that his adversary’s claim is not cognisable in equity, cannot subsequently in an action at law brought by him against the plaintiff involving the same matter assert that the same claim set up as a defense is of an equitable character.</p> <p>The objection in an action at law in the Federal courts that a defense •is of equitable cognizance cannot be taken for the first time in the appellate court. Burbank v. Bigelow, 154 U. S. 558.</p> <p>On certiorari, granted under the provisions of the Court of Appeals Act of 1891 the entire record is before this court with power to decide the case- as presented to the Circuit Court of Appeals on the writ of error issued by it.</p> <p>The great purpose of the Court of Appeals Act to which all its provisions are subservient is to distribute jurisdiction of the Federal courts and to relieve the docket of this court by casting on the Circuit- Courts of Appeals the duty of deciding cases over which their jurisdiction is final.</p> <p>Although ordinarily the mandate of this court in cases coming to it on certiorari to the Circuit Court of Appeals goes directly to the Circuit Court, where certiorari is granted, solely on the ground that the Circuit Court of Appeals has failed to consider the case, the judgment will be reversed and the case remanded to that court with instructions to hear and decide it.</p>

Held: upon the question of jurisdiction, that there could be no appeal from the Circuit Court of Appeals in such a case, but that a writ of certiorari might issue to bring the case here from the Circuit Court of Appeals upon the authority of In re Chetwood, 165 U. S. supra.

<p>Where one has been tried in a state court for murder and convicted of manslaughter, and, on his own motion, obtains a reversal and new trial, on which he is convicted of a higher offense, and the constitution of the State provides that no . one shall be put in second jeopardy for the same offense save on his own motion for new trial ' or in case of mistrial, there is no question involved of twice in jeopardy under the Constitution of the United States.</p> <p>132 Georgia, 573, affirmed.</p>

<p>APPEALS PROM THE CIRCUIT COURT OP APPEALS POR THE SEVENTH CIRCUIT.</p> <p>PETITION FOR WRIT OF PROHIBITION.</p> <p>The facts are stated in the opinion.</p> <p>The right of the Government to the full measure of the relief- prayed in its bill in this cause, and granted to it by the decree of the Circuit Court of Appeals, depends primarily upon the sufficiency of the proof establishing the conspiracy bétween Oberlin M. Carter añd the contractors to defraud the United States as charged in the bill.</p> <p>The proof submitted established that in devising projects of improvement, drafting specifications, advertising, letting contracts, supervision and acceptance, large discretion and options were reserved to and exercised by Carter as engineer officer in charge.</p> <p>The proof establishes the fact that during the period in controversy, Carter’s discretion and options after the letting of the contracts were so exércised uniformly as. to create the largest possible profit to the contractors at the expense of the United States, and did in fact cause an advance, of-more than 300 per cent.</p> <p>The foregoing facts cannot be seriously disputed, but it is asserted thé exercise of the discretions which Carter claimed he had the right'to use in the manner in which they , were exercised, were either justified by special circumstances excusable for absence of corrupt motive.</p> <p>The Government claims that the element of corrupt motive is demonstrated by the proof especially by . the establishment of the system of division by currency deposits aggregating more than.$578,299.66 ,up to 1896 — which method of concealment raises an overwhelming presumption of the existence of the conspiracy. Wharton Criminal Evidence; §§32-38; The Slavers, 2 Wall. 401; Rea v. Missouri, 17 Wall. 543.</p> <p>The facts proved supply the corrupt motive in the acts of Carter by which the exorbitant profits were created, and establish the existence of the fraudulent relations between Carter and the contractors, as the. ultimate fact. Tiedeman on Equity Jhr., § 235; Eaton on Equity, § 135.</p> <p>Both the Circuit Court and . Circuit Court of Appeals in4 this ¡cause, having found as an ultimate fact that all of the profits of the contracts are fraudulent profits, and that the Government is entitled to recover all the investments made therewith in the hands of Carter or his agents, ór other persons taking with notice, this court will not disturb the finding unless shown to be clearly erroneous. Stuart v. Hayden, 169 TJ. S. 1-14; Brainard v. Buck, 184 U. S. 105; Towson v. Moore, 173 U. S. 17; Dravo v. Fabel, 132 U. S. 487; Baker v. Gumming, 169 U. S. 189; Smith v. Burnett, 173 U. S. 430, 436; Sabine v. The Richmond, 103 U. S. 540.</p> <p>The fundamental question of the guilt of Oberlin M. Carter of conspiracy with Benjamin D. Greene and John F. Gaynor to defraud the. United States in the river and harbor contracts under consideration has been passed upon affirmatively prior to the..decrees in the present suit, by numerous courts, notably in the following proceedings in ¿His and other courts:</p> <p>.. Verdict of guilty against Captain Carter by General Court- . Martial.</p> <p>Reviewed by Attorney General Griggs and affirmed by President McKinley, September 29, .1899. See Carter Case, 22 Opin. Atty. Geni., 589.</p> <p>Reviewed by this court and sentence affirmed on habeas corpus. Carter v. McClaughy, 183 U. S., 365.</p> <p>Verdict of guilty against Benjamin D. Gréene and John F. Gaynor, on trial by jury on indictment, April 12, 1906, U. S. Dist. Court, Southern Dist. Gá. United States v. Greene, 146 Fed. Rep. 803.</p> <p>Reviewed and affirmed on writ of error by U. S. Circuit Court of Appeals, Fifth Circuit. Greene v. Unite<i States, 154 Fed. Rep. 401-414;</p> <p>Petition of Greene and Gaynor for certiorari denied by this court. Greene v. United States, 207 U. S. 596.</p> <p>Although owing to Carter’s pleading the statute of limitations before the court-martial, barred criminal prosecution for acts done in connection with all the contracts let prior to 1896, the convictions in the criminal cases were for acts done under the contracts of 1896, alone, and the bulk of the assets sought to be recovered in the present suits are charged to have arisen from funds fraudulently diverted under contracts let from 1891 to 1895, the proof shows that the conspiracy was in continuous operation from 1891 to 1897 under all the contracts.</p> <p>When the object is to show system, subsequent as well as prior offenses when tending to establish identity or intent can be put in evidence. "Wharton, Grim. E.v., §§32, 38.</p> <p>As to tracing trust funds and trusts ex maleficio, see 2 Pomeroy’s Eq. Jr., 2d ed., 1053.</p> <p>As to elections which the cestui que trust may exercise in respect to the right to claim fraudulently diverted property or its proceeds, or to táke a money judgment for the trust assets dissipated, and also as to the election which may be exercised as to the remedy at common law or in equity, see May v. Claire, 11 Wall. 217; Smith v. Vodges, 92 U. S. 186; Moore v. Crawford, 130 U. S. 122; Oliver v. Piatt, 3 How. 333; 17 A. & E. Enc. Law, 475.</p> <p>Where the trustee commingles trust money with his own the right and lien of the beneficiary attaches to this entire combined fund. 2 Pomeroy’s Eq. Jr., § 1076; Eaton on Equity, § 210.</p> <p>If the trustee has withdrawn and dissipated a part of the commingled fund from a bank account, there will be a conclusive presumption that he dissipated his own fund and the balance not dissipated will be held to be the trust fund. The ordinary rule attributing the first withdrawals to the first payments into the account does not appíy. Nat. Bk. v. Ins, Co., 104 U. S. 68; Knatchball v. Haliett, 13 Ch. Div. 696.</p> <p>Where a trustee or bailee exchanges with himself the trust fund for other property or money of his own, the trust will attach to property taken in exchange, precisely ás if the exchange had been made with a third person. Van Allen v. Atrnr. Nat. Bk., 52 N. Y. 15; Nat. Bk. v. Ins. Co., 104 U. S. 70.</p> <p>The beneficiary has a right to elect to take a money judgment for such part of the assets which the person taking with notice may have dissipated, or to reject an improper investment and take a money judgment for the conversion, and to recover the profits of the trust fund. 17 A. & E. Enc. Law, 475; Oliver v. Piatt, 3 How. 333; May v. Claire, 11 Wall. 236. ,</p> <p>Neither the contractors, nor Carter or Westcott kept any regular books showing the division of the profits of the contracts, such as would be kept in the conduct qf a legitimate business, in which millions were divided between the parties interested. The proof of the facts has been (supplied by the Government through their accounts with banks and brokers and other documentary evidence. When therefore the system of the division of the profits between Carter, Greene and Gaynor month by month for a series of years is established, every "doubt, and difficulty bearing on the question as to whether any particular piece of property in Carter’s possession constitutes an investment óf the profits of the contracts, should be resolved against him. Rubber Company v. Goodyear, :9 Wall..788-803.</p> <p>After the Government closect the taking of evidence in its behalf, Carter undertook by his own testimony to set up a claim as to the origin of hisalleged title to a large part of the securities in controversy wholly different from the claim he had set up in his sworn answer filed Feb. 1,1902. It is impossible if his last position be true, that he did not know the facts when he filed his answer. He will' not be allowed to change his position under such'circumstances. Henderson v. Louisville & Nashville R. R., 123 th S. 64; The Santissima Trinidad, 7 Wheat, 339. Much less can such a right of Carter to the securities be sustained under a variance of the proof, where that offered'is totally inconsistent with his answer not amended. Garland v. Davis, 4 How. 131, 148; Boom v. Chiles, 10 Pet. 178,179.</p> <p>If a party attempts to impose upon this court by knowingly or fraudulently, claiming as his own, property belonging in part to others, he shall not be entitled to restitution of that portion which he may ultimately establish as his own. The Dos-Hermanos, 5 Wheat. 76, 96.</p> <p>On the direct appeal of the United States from allowance ■of fees to defendants, counsel, etc,, the government contends, besides the errors assigned as to the exorbitant character of the allowances to defendants’ counsel, that- defendants did not perform the stipulation under which it is claimed the allowances were made.</p> <p>The Government had already tied up in the hands of receivers on auxiliary bills in other districts some $288,346.92 of the assets in controversy, and rules for contempt of court were .pending in the present suit in the Northern District of Illinois against I. Stanton Carter, the brother, and Lorenzo D. Carter, the uncle of Óberlin M. Carter, for failure to turn over the assets described in the bill when the stipulation of Nov. 6, 1901,was entered into.</p> <p>By paragraph “2” of that stipulation the brother and uncle were required forthwith, to. turn over to the receiver all the assets claimed by complainant in its bill as being a part of the trust funds, which were or might be in the possession, power, custody or control of the said defendants. By paragraph “4” the brother and uncle were required to file forthwith or simultaneously with the delivery of the' assets to the receiver, answers disclaiming all personal interest in the assets in controversy. By paragraph “9” the allowance of attorneys’ fees- to defendants’ counsel out of the fund to be turned over was made conditional upon the delivery of substantially all the assets referred to in paragraph “2.” The delivery to the receiver referred to in paragraph “9” was not simply the delivery in paragraph “2” but the delivery accompanied by the disclaimer of all personal interest in all the assets claimed and described in the bill, which by paragraph “4” the defendants were to forthwith file. The consideration to the Government was to get the assets at once into the hands of a receiver, and to relieve itself from the trouble, difficulties and expense of forcing the assets out of the hands of the brother and uncle, and to eliminate from the case any claims they might individually set up. The brother and uncle did not forthwith deliver $23,000, Kentucky Central bonds claimed and described in the bill, but in their answers did admit their possession and retention, and did set up personal claims or liens thereon for alleged salaries due them by Carter. The Government was therefore forced to conduct a long litigation before the master and the courts, until it overcame these personal claims set. up by the brother and uncle and forced the delivery of the bonds, and finally obtained deficiency judgments against the brother and uncir for assets not even yet turned over. It is contended therefore that the defendants’ counsel were not entitled to the allowances by reason of the failure of the Carters to perform that part of the stipulation upon which the right to the allowances were predicated.</p> <p>The United States is not entitled to a deficiency decree for any amount under the pleadings and the record in the ». ase.</p> <p>The theory of the complainant’s case is that certain property and securities being in the possession of the defendants, and the property and securities having been purchased with the fruits of fraud practiced upon the complainant, it is entitled to said property and securities. Such is the basis of the complainant’s claim and the specific prayer for relief is in harmony therewith.</p> <p>Thé specific prayer must be in consonance with the case made in the bill; and the relief grantable under the'.general ■ prayer must be in harmony with the facts in the bill and such as the proof will justify. Equity Rule XXI, 410 U. S.</p> <p>In many classes of cases in equity the general prayer will permit the granting of relief other than that specifically prayed for, but only that relief which is in harmony with .the theory of the case. See English v. Foxhall, 2 Pet. 595; Hob-son v. McArthur, 16 Pet. 182, 195; Street’s Fed. Eq. Prac., §§ 247, 252. And see United States v. E. C. Knight Co., 156 • U. S. 1.</p> <p>In cases alleging fraud, however, if proof of fraud be wanting, the complainant is not entitled to substituted relief. Eyre v. Potter, 15 How. 42.</p> <p>Even in cases where the general prayer is sufficient, the . special relief prayed at the bar'must essentially depend upon the proper frame and structure of the bill. Story, Eq. Plead., ' § 38; Cooper Eq. PI. 14; Jones v. Parishes of Montgomery, etc., 3 Swanst. 208; Lehal v. Miller, 2 Ves. 209; Lord Walpole v. Lord'Orford, 3 Yes. 416; Hiem y. Mill, 13 Ves. 119; 3 Wooddes Lect. 55, p. 372; Walker v. Devereaux, 4 Paige, 229; Scudder v. Young, 25 Maine, 153.</p> <p>The theory of this case is the same as one for the recovery of an ancient silver altar claimed as treasure trove; for a cabinet of family jewels; for a picture or statue of a particular artist; and for other objects of a like kind. See Adams’ Eq., p. 91, and Mitf., 117; Duke of Somerset v. Cookson, 3 P. W. 389; Earl of Macclesfield v. Davis, 3 Ves. & B. 16; Wood v. Row-cliff e, 3 Hare, 304.</p> <p>The claim in the bill is modified by the stipulation of November 6, 1901,. and particularly by paragraphs “2” and “9” thereof. The former provides for turning over of assets which have “not heretofore been bóna fide disposed of,” the ■ latter for turning over “substantially all” of the Paul, West-cott and Bragg securities, -not heretofore “bona fine paid out or pledged.”</p> <p>Prior to the stipulation of November 6, 1901, the claim of the. complainant was the specific property, real and personal, above set forth.</p> <p>By virtue of the stipulation, the claim of the Government was reduced by the amounts boria fide disposed of.</p> <p>The decree must conform to the prayers of the bill. Phipps v. Sedgwick, 95 U. S. 3; Clark v. Beecher, 154 U. S. 631; Hayward v. Eliot National Bank, 96 U: S.-611.</p> <p>In the present case, .the decree, did not. conform to the prayers of the bill, as it awarded to the complainant relief other than that prayed for, either specifically or'generally, . to wit, money other than that claimed by means of deficiency, money decrees against L. D. Carter for $7,577.04 and against I. S. Carter for $18,204.18.</p> <p>The bill herein sought to have, decreed to the complainant certain property and securities in specie, and the prayers asked for such relief. Story, Eq. PI., § 8, 42a and 42b; Hardin v. Boyd, 113 U. S. 756, citing Terry v. Rosewell, 32 Arkansas, 492; Colton v. Boss, 2 Paige, 396; Lloyd v. Brewster, 4 Paige, 540; Lingen v. Henderson, 1 Bland, 252; Murphy v. Clark, 1. Sm. & M. 236. The prayer for alternative relief may be by amendment. Hubbard v. Urton, 67 Fed. Rep. 419.</p> <p>Having elected to pursue the property and securities in specie the Government cannot now claim.any other thing, than the property and securities. ■</p> <p>The decree must conform to the pleadings; the relief granted must always be in conformity with the case made in the pleadings. Simms v. Guthrie, 9 Cranch, 19; Crockett v. Lee, 7 Wheat. 523; Cameal v. Banks, 10 Wheat. 181; Harding v. Handy, H Wheat. 103.</p> <p>Complainant cannot ask for relief by relying on the general prayer. Thé theory of the case is that the United States, was defrauded by means of a conspiracy, and the principle, that if one fails to make out a case for the special relief relief can be secured under the general prayer does not apply to cases alleging fraud. Brittan v. Brewster, 2 Fed. Rep. 160; Kent v. Lake Superior Ship Canal B. & I. Co., 144 U. S. 75; Hendryx v. Perkins, 114 Fed. Rep. 801. ■</p> <p>The decree entered by the Circuit Court on March 18, 1908, was not in accord with the allegations of the bill, was hot in conformity with the proof, was not in harmony with the relief prayed for, and was not proper under the rights of the litigants as defined by the stipulation of November 6, 1901.</p> <p>The United States was not entitled to an accounting as such from the defendants because: The bill is not framed upon such a theory as will justify an accounting; the prayers of the Bill did not ask such relief; there was no reference to a master for an accounting generally .but only particularly as hereafter stated; the right to general accounting was expressly waived by the complainant in the stipulation of November 6,1901.</p> <p>But even if harmony exists between the allegations of the bill; the relief prayed; the proof in the main case; and the decree, nevertheless the Government is not entitled on the facts to a deficiency decree against any of the defendants. ,</p> <p>The stipulation of November 6, 1901, did not require the defendants in the trial court to turn over to the receiver all of what remained of the property formerly in the hands of Paul, Westcott and Bragg, but only “substantially all” of it.</p> <p>' The right of the complainant below to a deficiency decree against the defendants, if any it had, is the same as to each.</p> <p>Thepresent déficiency decrees against L. D. Carter and I. S. Carter are predicated' in part upon the testimony of Robert F. Westcott in the Gaynor-Greene removal proceedings before Shields, Commissioner.</p> <p>This testimony, assuming that it may be used to give notice to the two defendants (which is denied), is not entitled to any weight for the reason that it is discredited by numerous false statements that were palpably made for the purpose, of misleading. •</p> <p>The contract of November 6, 1901, expressly exempted the Carters from turning over anything which had been bona fide disposed of or pledged. The complainant in writing conceded that payments, for salary were proper under that contract.</p>

Held: although there are decisions the other way, that a landowner cannot recover for the obstruction of a public water course, the discontinuance of a public way, or the like. The ground of such decisions is that the plaintiff’s rights are subject to superior public rights, or that he has no private right, and that his damage, though greater in'degree than that of the rest of the public, is the sanie in kind.

Weems v. United States, 217 U.S. 349 (1910), was a decision of the United States Supreme Court. It is primarily notable as it pertains to the prohibition of cruel and unusual punishment. It is cited concerning the political and legal relationship between the United States and the Philippines, which at that time was considered a U.S. colony (see Philippine–American War for more information). The decision stated that the definition of what constitutes a "cruel and unusual" punishment is not tied to narrow historic interpretations.

EREOR TO THE SUPREME• COURT OF THE STATE OF TENNESSEE. The facts, which involve the constitutionality of certain ' provisions of - the anti-trust statute of Tennessee of 1903, are stated in the opinion.

Held: so far as we know, to give a right of review before final judgment. ,In the case of Rankin v. The State, 11 Wall. 380 , an attempt was made to bring .to this court a judgment of a stat'e court upon a plea in bar of former conviction in a capital cáse.

E$ROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI. ■ This is a writ of error to the Supreme Court of the.

<p>ERROR TO THE CIRCUIT COURT O.P THE UNITED STATES FOR THE •SOUTHERN DISTRICT .OP WEST VIRGINIA'.'</p> <p>The facts are stated in the opinion.</p>

The facts, which involve the jurisdiction of this court of an appeal from the Circuit Court of Appeals in a suit brought under the Trade-mark Act of 19Ü5, are, stated in the opinion. On the question-of jurisdiction of the appeal by this court: This is the first appeal based on the fact that the jurisditv tion of the Circuit Court was founded on the Trade-mark Act of February 20, 1905. .

The facts, which involve the constitutionality of the Sales-in-Bulk Act of 1905 óf Michigan, are stated in the opinion. The enforcement of the act deprives a merchant of his property without due process of law, by making it extremely' difficult, if not impossible, whenever he may be in- debt, as he usually is when he makes such a sale, to sell his stock otherwise than in the ordinary course of trade, even though he may desire to make the sale-for honest purposes.

The facts are stated in the opinion. • Those who acquire a title before any suit brought by the vendors or former owners are not to be considered as privies to such suit or a judgment thereon. Freeman on Judgments, 1st ed., § 162; Dull v. Blackman, 169 Ü. S. 248; Kerr v. Watts, 6 Wheat. 560; Canon River Mfg..A$sn. v. Rogers, 43 N.’W. Rep. 792; Sessions v. Johnson, 95 U.' S. 347; Graham v. La Crosse M. R. Company, 3 Wall. 704.

Held: that as the attorney of record had coliooted without legislation the entire fee originally contemplated and allowable he must account for the amount so collected by him and pay the associate counsel the amount agreed under the contract. 31 App. D. C. 177 , affirmed. • The facts, which involve the construction of a contract for legal fees, are stated in the opinion: Mr. William H. Robeson for plaintiff in error.

<p>ERROR TO THE CIRCUIT COURT OP THE UNITED STATES POE THE DISTRICT OP CONNECTICUT.</p> <p>The facts are stated in the opinion.</p>

<p>One committing a fraud does not become an outlaw and caput lupinum. Although one by reason of. fraud may have no standing to rescind his transaction, if it is rescinded 'by one having the right to do so the court should do such justice as is consistent with adherence to law.</p> <p>. Although one holding a unortgage may have fraudulently endeavored to prevent another from acquiring the fee of the property, he may still •be entitled to'Lave bis mortgage paid if the other finally gets the '' property.</p> <p>■ Deeds' and discharges of.mortgages although different instruments may be parts of one transaction; and one setting aside the deed may also be required to give up the discharge so as to restore other parties to the condition in which they stood prior to the transaction.</p> <p>18 Arizona, 151, reversed '</p>

<p>APPEAL FROM THE -DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.-</p> <p>The facts are stated in the opinion.</p> <p>The burden of showing that the Central Eureka referred .to in the contract was not the project known as the Swiio Eureka Central was -not on the defendants below but such ’burden as to the identity of the projected Central Eureka referred to was on the plaintiffs below.-</p> <p>1 There was not, nor is there now, any presumption that the Central Eureka referred to was the Swift project.' The burden of proof of a fact is upon him who asserts it. Complainants (defendants in error here) allege,'and to recover must prove, that defendants entered into a combination or conspiracy to enable them to violate á contract; that this violation was to be committed by pretending that a certain proposed sugar mill known by the name of “Eureka”, was not, in fact, the Eureka project which the complainants alleged it .to be, and in order to make proof to justify.a decree in its favor it must prove by a preponderance of the testimony, in view of defendants’ denial, that the Swift Eureka was. the project, actually intended and referred to in the said contracts Mutual Reserve Fund v..Powell, 79 Ill-. App. 3.64; Piper v...WatMns, 8 Kan. App. 215; Rupp v. Sarpy County, 71 Nebraska, 382; Vertrees v. Gaffe County, 75 Nebraska, 332; Simonton v. Winter, 5 Pet. 141; Adams v. Adams, 21 Wall.. 185; Knox v.-Smith, . 4 How; 298; Lems v. Cocks, 23. Wall. 470.</p> <p>Fraud and conspiracy, when alleged as the basis of action, must be clearly proven in order to warrant a recovery. Far-rar v. Churchill, 135 U. S. -609; -Gaines v. Nicholson, 9 How;' 356'¡..United States v. Arredondo, 6 Pet. 691; Jones v. Simpson, 116 U. S. 609; Jacobs v. Van Sickel, 123. Fed. Rep. 341; Chees-man v. Hart', 42 Fed. Rep. 98, distinguished;</p> <p>.- This case does not present in any event, any ground for equitable relief, or the issuance ■ of an injunction. The only consistent relief which could be applied for would be'in-the nature of specific performance. . Grape Creek Company v. Spellman, 39 Ill. App. 630.</p> <p>Equity should not intervene. An action at law for damages is equally, or even more, effective for complainant. There is no- allegation in the complaint of. defendants’ insolvency.</p> <p>The court erred in granting ahy relief to appellee, because the contract was wholly unilateral and incapable of enforcement by a court of equity, either by way off-specific performance or by injunction. .</p> <p>Appellee’s mill was neither constructed nor enlarged upon • any consideration- moving from- this contract. There was no consideration.</p> <p>Appellants were not in anywise dependent upon appellee for a 'market for their sugar cane, tor they were dealing with other mills before appellee’s factory was started, and the bill of complaint shows that there are more mills in the vicinity than the supply of sugar cane would justify. The remedy mitet be mutual. Ross v. U. P. R. R. Co,, Fed. Cas. 12,080; Pullman Pal. Car'Co. v. Texas & Pac. it. R. Co., 11 Fed. Rep. 625.,</p> <p>Where a contract is harsh the court will leave the parties to their remedy at law. King v. Hamilton, 4 Pet.,311; Red-man v. Zilley, 1 N. J. Eq. 320; Appeal o/Weise, 72 Pa. St. 351. Even though the contract be valid at law, if it be harsh or unjust, equity will not relieve. .¡Leigh v. Crump, 36 N. C. 299; Friend v. Lamb, 152 Pa. St. 529.</p> <p>Relief was properly given by injunction instead of by specific performance.</p> <p>The bill of complaint prayed for an injunction and not for specific performance. Defendants in a suit cannot complain that only partial relief has been granted. .The bill is not strictly to decree a performance of a contract, but, by injunction, to prevent the destruction of contractual obligations. Hendricks v. Hughes, 117 Alabama, 591.</p> <p>This doctrine seems to be an extension of that maintaining the right to enjoin the violation of contracts for personal services so well established and often applied since Lumky v. Wagnér, 1 De G., M. & G. B04.</p> <p>. The fundamental basis of jurisdiction to enjoin the violation of the contract instead of leaving a complainant to his action at law for damages is the impracticability of ascertaining with any definiteness the real extent of such damage; hence the inadequacy of the remedy. Whem performance is to continue through a series of years in the future, that fact alone renders definite ascertainment of damages impossible.’ See the following English oases more or less analogous in their' reasoning to the case at bar: Jones v. North, 44 L. J. Ch. 388; Donnell v. Bennett, 22 Ch. Div. 835; Whitwood Chem. Co. v. Hardman, L. R. [1891] 2 Ch. 416; Catt v. Tourle, L. R. 4 App. Ch. 654; and also see the following American cases: W. U. Tel. Co. v. U. P. Ry. Co., 3 Fed. Rep. 423,429; C. & A. Ry. Co. v. N. Y., L. E. & W. R. R. Co., 24 Fed. Rep. 516, 521; Alpers v. City t)f San Francisco, 32 Fed. Rep. 503; General Elec. Co. v. Westinghouse Co., 151 Fed. Rep. 664,672, 677; Manhattan <&c. v. N. J. &c., 23 N. J. Eq. 161; St. Regis Co. v. Lumber Co., 173 N. Y. 149,161.</p> <p>The same principles have been applied in cases involving contracts wherein public interests were involved. Walla Walla v. Water Co., 172 U. S. 1, 11; Joy v. St. Louis, 138 U. S. 1, 46.</p> <p>Defense of appellants upon question of meaning of . disputed clause of contract is affirmative.. The burden of proof under such a proviso is clear. United States v. Cook, 17' Wall. 168, 176; and see Steel v. Smith, 1 B. & A. 99, in which a proviso, exactly as in the case at bar, was construed. ■</p> <p>In equity where an answer which is put in issue admits a fact, and insists upon a distinct fact by way of avoidance, the fact admitted is established, but the fact insisted upon must be proved. Clements v. Moore, 6 Wall. 299, 315;' and see to the same effect, Bour v. Kimball, 40 Ill. App. 327; Nelson v.' United States, 30 Fed. Rep. 116; Lake Shore Co. v. Felton, 43 C. C. A. 189,193; Miller v.- Shields, 124 Indiana, 170; Rowell v. Janvrin, 151 N. Y. 60, 67.,</p> <p>Even had the proviso allowing the cancellation of the contract been absolute, and self-operative in its terms, thus importing-a condition,- it would still have been a condition subsequent, of which the'burden of proof would still be upon the party to be relieved by its fulfillment. Den v. Steelman, 10 N. J. L. 193, 204; Hotham v. East India Co., 1 Term Rep. 638, 645.</p> <p>The unilateral character of the contract is not open for consideration in this court, but even could the court consider that question, the mutuality of consideration and obligation is plainly apparent on its face.</p>

•The facts, which involve the validity'of a conviction for perjury under § 5395, .'Rev. Stat:,' for false swearing in a naturalization proceeding in a state, court; are. stated in the opinion. The offense, if any, was committed in a- state court.

Held: not to be a regulation of interstate commerce, although they may affect the transaction' of such commerce among the. States. In Smith v. Alabama, 124 U. S. 465 , it was held to be within the police power of the State to require locomqtivu engineers to be examined and licensed.

. . The facts, which, involve the validity of a conviction for embezzlement under § 535 of the Philippine Code, are stated , in the opinion.

<p>Under the act of February 9, 1893, c. 74, § 8, -27 Stat. 436, appeals from and writs of error to the Court of Appeals of the District of Columbia are governed by § 705, Rev. Stat., as to procedure, and by ■ §§ &97 and 1012, Rev. Stat., as to filing the transcript and assignment of error as from a Circuit Court.</p> <p>Rule 35 refers in terms only to writs of error and appeals under §5 of the Court of Appeals Act of March 3, 1891, but by Rule 21, it is in effect extended to every writ, of error and appeal; and, although errors may not be assigned on a writ of error to the Court of Appeals' of the District of Columbia, the cqurt is not under obligation to dismiss the writ in ease the assignment of errors.is not filed as re- . quired by§§ 997 and 1012, Rév. Stat., having by its rules reserved the option to notice plain error, whether assigned or not. ■ ..</p> <p>In this case the-court exercises the option reserved under Rules 35 and.21 to examine the record to ascertain if there are errors not' assigned as required by §§ 997, 1012, Rev. Stat., but so plain as to demand correction.</p> <p>Under the complete jurisdiction which the United States exercises</p> <p>■ over the District of Columbia it is within the power of Congress to arbitrarily fix a minimum amount to be assessed for benefits on property within the assessment district of a street opening proceeding, and so held as to act of June 6, 1900, c. 810, 31 Stat. 663, as to the opening of extension of Elevehth Street.</p> <p>' Where Congress passes an act superseding a former act in regard to condemnation proceedings and providing for' ¡i reassessment of benefits, the reassessment is a continuance of the proceeding .under the former act and not a new proceeding; and the assessment for benefits is not barred by the statute of limitations if the proceeding was commenced in time under’ the original act.</p> <p>Objections to qualifications of jurors and their examination and oath in condemnation proceedings must be taken at the time.'</p> <p>That counsel was not present when they were accepted and sworn does not invalidate the impaneling of the jury if the statute does not so provide.</p> <p>On condemnation proceedings where the statute directs the court to follow’ the procedure prescribed for other proceedings, the . court will properly vary the oath so as to relate to the property involved, and not to . the property in the other proceedings; and if the bill of exceptions does not’ show that the essential matters were omitted from the oath, the presumption is that the statutory oath Was complied with as. far as applicable to the proceeding in which it was ' administered.</p> <p>Where a verdict 'of: damages and benefits is set aside as to benefits and a reassessment ordered, the remainder of the verdict as to damages alone does not stand as res. judicata that the property is damaged and theré are no benefits that can be assessed under a subsequent act as to procedure for reassessment of benefits;</p> <p>Where, doubt as to meaning óf one part of the. charge is eliminated by other parts of the charge, there is no' reversible error.</p> <p>Where the.jury in a condemnation proceeding exercises its own judgment derived from personal knowledge from viewing the premises and from expert opinion evidence not taken in presence of the court, the power of the court to review the award is limited to plain errors of law, misconduct or grave error of fact indicating partiality or corruption, and the court is not required to review all the evidence taken before the jury in order to’determine whether.the. award is unreasonable or unjust where no specific wrong or injustice is pointed ' out.. . .</p> <p>Where the evidence in a condemnation proceeding is not before this court and there is no agreed' statement of facts this court cannot determine, that the trial court erred' in'holding the award of the jury made on viewing the premises and expert evi'dence not so unreasonable or unjust as to'require a new trial before another jury.</p> <p>31App. D. C. 112, affirmed. . ' • '</p>

The facts, which involve the validity of certain assessments in the District of Columbia, and the jurisdiction of this court to review judgments of the Court of Appeals of the District of Columbia, are stated in the opinion.

<p>This court accepts the construction by the highest court of the State that the tax imposed by the state statute in this ease is not a property tax, but a license tax, imposed on the doing of a business which is subject to the regulating power of the State.</p> <p>The function of taxation is fundamental to the existence of the governmental power of the States, and the restriction against denial of equal protection of the law does not compel an iron rule of equal taxation, prevent variety in methods, or the exercise of a wide discretion in classification.</p> <p>A classification which is not capricious or arbitrary and rests upon reasonable consideration of difference or policy does not deny equal protection of the law, and so held that the classification in the Ken-</p> <p>. tucky act of 1906, imposing a license tax on persons compounding, rectifying, adulterating, or blending distilled spirits, is not a denial of equal protection of the law because it discriminates in favor of the distillers and rectifiers of straight distilled spirits.</p> <p>A State cannot impose an occupation tax on.a business conducted outside of the State, and a license tax imposed on those doing a specified business within-the State is not unconstitutional as denying equal protection of the law or violating the commerce clause because not imposed on those who carry on the same business beyond the jurisdiction of the State and who ship goods into the State.</p> <p>While taxation, discriminating in favor of residents and domestic products,- and against non-residents and foreign products, might be in valid, under the commerce clause, that objection does not apply to uniform taxation on a business which does not discriminate' in favor of residents or domestic products.</p> <p>While a state tax on.goods which discriminates arbitrarily against the products of that State and in favor of other States denies equal protection of the law, as both classes of goods are within the taxing power of the State, where the license tax for the business of pro-dueing the product cannot be imposed on the business beyond the State, it is not discriminatory. State v. Hoyt, 71 Vermont, 59, distinguished.</p> <p>125 Kentucky, 402, affirmed.</p>

The facts involved in this case are stated in the opinion of the court delivered February 21, 1909, ante, p„ 1; the particular facts involved in the settlement of the decree are stated in the opinion following.

<p>Where the Circuit Court has jurisdiction to determine questions presented on a motion to remand a case to the state court and denies the motion mandamus will not lie to compel it to remand the case. In re Pollitz, 206 U. S. 323.</p> <p>In this ease diverse citizenship éxisted but plaintiff moved to remand-because the suit was not of a civil nature but for a penally, because -the record did not show that plaintiff or defendant resided in the District to which removal was sought, and because defendant did not specifically pray for removal of cause; held that the Circuit Court had jurisdiction to determine whether the ease was removable and that mandamus would not lie to compel the Circuit Judge to remand the cause.</p>

The facts involve the claim of title to property in the State of Minnesota based on a patent of the United States. The state court found the facts as contended by the defendants, and also that the patent itself was not attacked, but that the question was: Who was the person entitled to the lands under the patent?

This was a motion for leave to file a petition for a writ of mandamus to require the Circuit Judge to remand a case which had been removed from the state court and which involved the validity of a sale of a vessel by a United States marshal under execution.

Plaintiff in error, having been convicted and sentenced, asserted that the law under which the jury was drawn was unconstitutional under the Fourteenth Amendment. Ch. 90, Laws of Wisconsin for 1903 and §§ 2524, 2530, 2533, Wisconsin statutes. The trial court sustained the demurrer of the State to this plea.

This case involved the question whether a corporation principally or solely engaged in carrying on a general restaurant business comes within those classes of corporations which are subject to the provisions of the Bankruptcy Act of 1898 as engaged in manufacturing, printing, publishing, trading or mercantile pursuits.

Appellee contended that the decision appealed from is not in itself of a reviewable character being merely an order dismissing an appeal and not a determination on the merits.

The plaintiffs and appellants brought this case as minority stockholders of the Highland Gold Mines Company, a private corporation organized and existing under the laws of the State of Oregon, against the Highland Gold Mines Company,. said corporation, and its officers •and directors. . , It is charged in the bill of complaint that the defendant Crawford, who was the attorney and legal advisor of the company, conspired with defendants Diehl, Grabill and Sorrensen, officers…

<p>A judgment of ouster rendered in quo warranto proceeding, 241 Illinois, 155, affirmed without opinion.</p>

The state court entered orders requiring plaintiffs in error to turn over property to defendant in error received of a corporation and adjudging them in’ and committing them for contempt for failure to comply. Plaintiffs in error sued out writs of error assigning as error that they were denied rights secured by the Fourth, Fifth and Fourteenth Amendments to the Federal Constitution.

Judgment against plaintiff in error for damages for personal injuries sustained by defendant in error by reason of plaintiff in error’s negligence. Plaintiff in error sued out this writ of error on ground that it had been denied the right to remove the case to the Federal Court. Defendant in error moved to dismiss or affirm.

Held: without opinion, that the Circuit Court of the United States • had no jurisdiction of this action to enjoin the collection of a judgment entered against appellant in the state court.' . *600 The railroad company removed a suit brought against it and some of its employés for damages for personal injuries from the state court into the Federal court; the state court declined to surrender jurisdiction and the plaintiff…

This case was dismissed for want of jurisdiction. In its brief plaintiff in error contended that this suit was properly brought in the Circuit Court upon the ground that it is one arising under the laws of the United States, there being two reasons for so classifying it.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY.</p>