Volume 218 — United States Reports

The facts, which involve the liability of a national bank under a contract claimed by the receiver to be ultra vires, are stated in the opinion.

Held: that the Supreme Court of Indiana had construed the statute as applicable both to persons and corporations operating railroads.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.</p> <p>The facts, which involve the constitutionality of a statute of Minnesota regulating cutting timber on the public lands of the State and fixing penalties therefor, are stated in the opinion.</p> <p>Section 7 bf ehap. 163 must be considered in its entirety, if any provision is unconstitutional, the whole falling. The legislature would not have passed the statute without the clause making a trespass a felony, of the clausé allowing double damages -in case of a casual or involuntary trespass. , ,</p> <p>Where an invalid provision in a statute was the inducement to the act, or where the provisions of the act are so intimately connected with each other as to warrant the belief that the legislature intended them as a whole, then the whole- statute must fall. Pollock v. Farmers’ L. & T. Co., 158 U. S. 601, 635; Poindexter v. Greenhow, 114 U. S. 270, 304; Huber v. Martin, 127 Wisconsin, 412; Meyer y, Berlandi, 39 Minnesota, 438; Commonwealth v. Harra (Mass.), 11 L. R. A., N. S., 799; O. R. & N. Co. v. Smalley, 23 Pac. Rep. 1008; Texas & Pacific R. Co. v. Mahaffey, 84 S. W. Rep. 646; Sutherland, on Stat. Const., §§ 173-178. The Supreme Court of Minnesota treated the provisions' of § 7 as inseparable, apd considered the section as a whole, and this court is concluded by that construction of the statute. Gatewood v. North Carolina, 203 TJ. S. 531; Armour Packing Co. v. Lacy, 200- TJ. S. 226'; Smiley v. Kansas, 196 TJ. S. 447.</p> <p>In determining whether or- not an action is civil or criminal in its nature the form of action is immaterial. The test is whether it is to punish a public offense or to redress a private injury. United States v. McKee, 4 Dill. 128; S.C., Fed. Cas. No. 15, 688; Coffey v.United States, 116 TJ. S. 436; Boyd v. United States, 116 TJ. S. 616; Wisconsin v. Pelican Insurance Co., 127 TJ. S. 265; Huntington v. Attril, 146 TJ. S. 657; Lees v. United States, 150 TJ; S. 476; United States v. One Distillery, 43 Fed. Rep. 846, 852; United States v. Shapleigh, 54 Fed. Rep. 126; A., T. & S. F. Railway v. United States, 172 Fed. Rep. 194.</p> <p>The double damages imposed by § 7 upoii the trespasser are a punishment for an alleged public offense, and the provision is penal in its nature. Mo. Pac. Ry. v. Humes, 115 TJ. S. 512; Fay v. Parker, 53 N. IT. 342, and see State v. Buckman, 95 Minnesota, 272.</p> <p>This is a penal 'action, and is unconstitutional as to plaintiffs in error because they are also subject to a punishment for the same acts under the provisions of the statute imposing a fine or imprisonment, thereby being subject to be.put twice in jeopardy for the same offense.</p> <p>The plaintiffs in error may properly raise this objection.</p> <p>In the following cases the defendant had not yet been proceeded against criminally, yet the court refused to allow the imposition of punitive damages: Fay v. Parker, 53 N. H. 342, 390; Austin v. Wilson, 4 Cush. 273; Taber v. Hutson, -5 Indiana, 322, 325; Koerner v. Oberly, 56 Indiana, 284, 287; Shafer v. Smith, 63 Indiana, 226, 228.</p> <p>A statute which places persons twice in jeopardy for the same offense does not satisfy the requirements of due process of law and further deprives them of a privilege and immunity guaranteed under .the Federal Constitution. Ex parte Lang, 18 Wall. 163; Ex parte Ulrich, 42 Fed. Rep. 587; M’oore v. People, 14 How. 13.</p> <p>Although the denial by thé States of several of the rights secured by the first ten amendments has been held not to be a denial of due process of law the question whether the placing of a person twice in jeopardy for the same offense is a deprivation of a privilege and immunity under the Constitution has never been decided. Plaintiff in error maintains that it is such a deprivation. See cases cited supra.</p> <p>Where for the same offense a person is subject to two punishments which may be inflicted in different proceedings he is put twice in jeopardy, and it is.immaterial that one of the proceedings is civil in'form. Coffey v., United States, 116 U. S. 436; United States v. McKee, Fed. Cas. No. 15,688; United States v. Gates, Fed. Cas. Ño. 15,191; United States v. One Distillery, 43 Fed. Rep. 846; United States v. Shapleigh, 54 Fed. Rep. 133.</p> <p>Both the provision of § 7 making the casual and involuntary trespasser liable to the State in double damages, and that declaring his act a felony, violate the. provision of the Fourteenth Amendment that no person shall be' deprived of liberty or property without due process of law.</p> <p>The effect of the statute is to eliminate altogether the question of intent and this is a denial of due process of law. Calder v. Bull, 3 Dali. 386: Coffey v. Harlan County, 204 U. S. 659.</p> <p>That there are implied limitations upon the power of the legislature growing out of the essential nature of our Government — which are now embraced in the provisions of the Fourteenth Amendment?--is declared by many courts. See Bardwell v. Collins,, 44 Minnesota, 97; State v. Billings, 55 Minnesota, 467; State v. Foley, 30 Minnesota, 350; Minnesota Sugar Co. v. Iverson, 91 Minnesota, 30; Wilkinson v. Leland, 2 Pet. 627; Regent v'. Williams, 9 Gill. & J. 365; Powers v. Bergen, 6 N. Y. 358; Goshen v. Stonington, 4 Connecticut, 209; Young v. McKensie, 3 Kelly (Ga.), 31; Ex parte Martin, 13 Arkansas, 198; Henry v. Railway Co., 10 Iowa, 540, 543.</p> <p>These provisions cannot be justified nor saved from the operation, of the Fourteenth Amendment as a proper exercise of the police power of the State.</p> <p>The object of the statute was not a proper one for the exercise of the police power. Mo. Pac. Ry. Co. y. Humes, 115 U. S. 512; Colon v. Lisk, 153 N. Y. 188; Minn. Ry. Co. v. Beckwith, 129 U. S. 26; Gulf, C. & S'. F. Ry. y Ellis, 165 U. S. 150.</p> <p>Assuming that the object of the statute was one which might properly be effectuated by an exercise of the police power, nevertheless this statute cannot be upheld as a reasonable or appropriate exercise of the power. Mugler v. Kansas, 123 U. S. 623, 669; Welch v. Swazey, 214 U. S. 91; Denver & R. G. R. Co. v. Outcalt, 31 Pac. Rep. 177;. Cottrel v. Un. Pac. Ry. Co., 21 Pac. Rep. 416.</p>

The facts, which involve constitutional -rights of colored passengers on interstate trains in Kentucky, are stated in the opinion.

The facts are stated in the opinion. To entitle a plaintiff to go to the jury, the evidence offered in support of his pleadings must conform closely to the allegations thereof. 13 Ency. PL & Pr. 910, and cases cited; Hetzel v. Railroad Co., 7 App. D. C. 524; Arrick v. Fry, 8 App. D. C. 125. Where a plaintiff has charged particular negligence, proof of other and different acts or omissions as a ground of liability will constitute a fatal variance.

Held: that: The Interstate Commerce Commission did not base its order on an effort to apportion the country into zones tributary to trade centers and to build up new trade centers. The outlook of the Interstate Commerce Commission and its powers are greater than the interests of- the railroads, and are as comprehensive as the interests of the entire country.

The facts, which involve the validity of certain orders of the Interstate Commerce Commission reducing railroad freight rates, are stated in the opinion.

<p>Where the circuit judge certifies that he is satisfied that the suit involves a controversy within the jurisdiction of the Circuit Court, mandamus will not issue to compel him to dismiss the case even if this court differs with him in his conclusions of law.</p> <p>Jurisdiction does not depend on motive. Although shares of stock may have been transferred to a non-resident to enable him to bring suit in the Federal court, if it appears from the record that he is the absolute owner of properly issued shares, exceeding $2,000 in value, jurisdiction exists.</p> <p>Jurisdiction of a suit to wind up a corporation having once properly attached, a receiver appointed, and creditors, as. between whom and the corporation diverse citizenship exists and the requisite amount is involved, joined as parties, the jurisdiction cannot be subsequently defeated by denials in ex parte affidavits of the jurisdictional facts.</p>

The facts are stated in tne opinion. Congress has sole power to regulate commerce between the SW.es. Art. I, § S, Const. U. S. Section 17 No State has a right to abridge the privileges of citizens of other States or to discriminate in its laws against the rights and privileges of citizens of the other States, Art. XIV, § 1, Const. U. S., and § 17 does discriminate against the rights and privileges of citizens of the other States.

Held: in this case, not to have amounted to ratification of the bankrupt’s act or to an election not to pursue the assets transferred, but the bankrupt was entitled to also maintain a bill in equity to set aside, the transfer. 157 Fed. Rep. 669 , reversed. The facts are stated in the opinion.

The facts, which involve the constitutionality of certain statutes of the State of Missouri, are stated in the opinion. Statutes requiring trains to stop at the intersection of the track on which they are running with the tracks of other railroads are valid as police regulations. I. & St. L. R. R. Co. v. People, 91 Illinois, 455; Birmingham R. R. Co. v. Jacobs, 92 Alabama, 191;.R. & D. R. R. Co. v. Freeman, 97 Alabama, 297; P. & P. U. Ry. Co. v. P. & F. Ry.

Franklin v. South Carolina, 218 U.S. 161 (1910) appealed the conviction of Pink Franklin for the murder of South Carolina Constable Henry H. Valentine in 1907. Franklin was a sharecropper who wished to leave his employer although his employer had advanced Franklin wages under a contract based on the so-called "peonage laws". A warrant was obtained and when Valentine came to the house, a shootout occurred, killing Valentine and injuring Franklin, his wife Patsy, and another constable who was there. The defense included claims that Franklin acted in self-defense and that the peonage laws were unjust.

Held: was created solely by § 99 in broad and general language, without exceptions or qualification, and that for conviction under that section it was. not essential to prove the sending of the notice required by § 80. This construction of the Maryland statute is conclusive upon us.

Held: that the city of Omaha has such right, and that an appraisal of a water system is not bad, and hence not binding on the city, because it includes the entire system, parts, of which are beyond the city limits. .

The facts, which involve the construction of the act of April. 12, 1902, c. 500, 32 Stat. 96, repealing certain provisions of the war revenue act of 1898 relating to inheritance taxes, are stated in the opinion. The question was improperly certified and should not be answered because the' Circuit Court of Appeals does not require the instruction for a proper decision. Columbus Watch Co. v. Robbins, 148 U. S. 266, 269.

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.</p> <p>The facfh.are stated in the opinion.</p>

The facts, which involve the validity of a conviction for murder committed on a military reservation of the United States, are stated in the opinion.

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

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

The facts, which involve the validity of a conviction in the Philippine Islands and the construction of the act of July 1, 1902, are stated in the opinion. The defendants were .prosecuted under article 343 of the Penal Code and the act of the Philippine Commission of October 9, 1907, which e&pressly repealed article 343.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.</p> <p>The facts, which involve the validity of a transfer of real estate to a national bank, are stated in the opinion.</p> <p>The national banking act is an enabling act, and a national bank cannot exercise any powers except those expressly- granted by that act or such incidental powérs as are necessary to carry on the business of banking. First Nat. Bank v. Converse, 200 U. S. 425; Central Tramp. Co.,v. Pullman Car Co., 139 U. S. 24; California Nat. Bank v. Kennedy, 167 U. S. 363; First Nat. Bank v. Hawkins, 174 U. S. 363; Pacific R. R. Co. v. Seely, 45 Missouri, 212.</p> <p>The only power or authority for a national bank to acquire or hold real estáte is given by § 5137, Rev.'Stat., under which it has no power or authority to accept or hold the real estate for the purpose for .which it was attempted to be conveyed in this case. The effort to convey the real , estate in question being beyond the powers given to the bank tp accept and hold the same; the proceedings, therefore, were an absolute nullity; .there was no acceptance of the deed by it, and no title vested in it. See cases supra and Pittsburg & Cinn. Ry. Co. v. Keokuk & Hamilton Bridge Co., 131 U. S. 371; Merchants’ Nat. Bank v. Wehrmann, 202 U. S. 295; First Nat. Bank v. Am. Nat. Bank, 173 Missouri, 153, 159; Marble Co. v. Harvey, 92 Tennessee, 115;- Steele v. Fraternal Tribunes, 215 Illinois, 190; Ellett-Kendall Shoe Co. v. Western Stone Co., 112 S. W. Rep. 4; Anglo-Amer. Land-Co. v. Lombard, "132 Fed. Rep. 721, 737; Brown v. Needles’ Nat. Bank, 94 Fed. Rep. 925; Coleman v. San Rafael Road Co., 49 California, 517; Pacific Ry. Co. v. Seely, 45 Missouri, 212.</p> <p>Thé making of the deed and sending it to the cashier of the defendant national bank being absolutely void, the same can be taken advantage of by any person whose interests are involved.. National Bank v. Matthews, 98 U. S. 621; Union Gold Mining Co. v. National Bank, 96 U. S. 640, have no application^ the facts in this case. These and the cases of National Bank v. Whitney, 103 U. ,S. 99; Schuyler National Bank v. Gadsden, -191 U. S.' 451, and similar cases, relate to the taking of real estate security for loans made by national banks.</p> <p>This is not a question as to the power of a national b„ank to loan money on real estate security. It involves an entirely different principle which is clearly distinguishable. California Nat. Bank v. Kennedy, 167 U. S. 363; McCormick v. Market National Bank, 165 U. S. 538.</p> <p>Plaintiff in error is. neither a third person in law nor a stranger to the transaction, but is a privy of the maker of the deed, both in blood and in estate. Stacy v. Thrasher 6 How. (U. S.)-44; Subway Co. v. St. Louis, 145 Missouri, 551, 567.</p> <p>The transaction being ultra vires and void for want of authority in the defendant national bank, and of its cashier, to accept the deed or title to the property, either party to the transaction can avail himself of this want of authority.</p> <p>Plaintiff contends that said state court erred in deciding and holding that the cashier of the defendant bank had the authority to accept said deed from the original maker thereof.</p> <p>If the cashier had authority to accept the deed for the bank, it was by his general authority in his ordinary business as cashier, otherwise no title vested in the bank and the transaction was a nullity. United States v. City Bank of Columbia, 21 How. 356, 366; Bank of United States v. Dunn, 6 Pet. 51; Western Nat. Bank v. Armstrong, 152 U. S. 346; Norton v. Derby Nat. Bank, 61 N. H. 589; Bank of Commerce v. Hart, 37 Nebraska, 197; Bank of Healdsburg v. Bailhache, 65 California, 329.</p> <p>The fact that no loss resulted from this particular transaction affords, no jurisdiction or excuse for the illegal and unauthorized act. There could be no end to the loss or injury that might result from such a precedent.</p> <p>The accepting of this deed was not one of the incidental powers necessary to carry on the business of banking, nor was it accepted as a security for a past indebtedness or purchased under judgment in favor of the bank.Neither was it for the purpose of owning a banking house of its own for, as heretofore' stated, the bank continued to pay rent as a tenant to the grantor, and the cashier and vice-president immediately after receiving the deed attempted to convey the property away.</p> <p>There is no evidence that the defendant bank, its officers, except its vice president and cashier, or its board of directors ever knew of this attempted conveyance, much less ratified the same. There, could have been no ratification of the same. The act was unauthorized and beyond its powers-, illegal and void, and was incapable of ratification. . See cases supra; Western Nat. Bank v. Armstrong, 152 U. S£ 346.</p> <p>The attempted conveyance of the property by Kerfoot to the bank and the acceptance of the deed by the cashier of the bank being ultra Jtires no title to, the property passed from Kerfoot or vested in the bank, because the bank not only did riot, but could not accept, the deed, br the title to the property. There was neither a delivery ■nor an acceptance of the deed. Hall v. Hall, 107 Missouri, 101; Miller v. McCall, 208 Missouri, 562, 580; Armstrong. v. Morrill, 14 Wall. 120.</p> <p>This court will not review the findings of fact made in the state court as to consideration for the deed. Waters-Pierce Oil Co. v. Texas, 212 XT. S. 86; Quirnby v. Boyd, 128 U, S.-489.</p> <p>If a corporation take land by grant which by its charter it; cannot hold its title is good against third persons,' and the State only can interfere. ' National Bank v. Matthews, 98 U. S. 621; National Bank -v. Whitney, 103 U. S. 99; Thompson v. St. Nicholas National Bankf 146 U. S. 240; De Fritts -v. Parker, 132 U. S. ,282. See also Smith v. Shelley, 12 Wall. 358, -361; Myers v. Croft, 13 Wall.- 295; Fortier v. New) Orleans Nat. Bank-, 112 U. S. 439; Reynolds v. Cráwfordsville National Bank, 112 U. S. 405; Scott v. DeWeese, 181 U. S. 202.</p> <p>The cases cited by plaintiff in error are inapplicable .to the .issues involved in this case,- and are clearly differentiated in principle.</p> <p>The original maker of the-deed if living, could not questiori the power or authority of.the bank to receive the deed made by him to it, nor the authority of the bank' to act thereunder, and plaintiff in error stands in no more favorable position in regard to this matter. French v. Spencer, 21 How. 97; Broadwell v. Merritt, 87 Missouri, 95; Wherry v. Hale, 77 Missouri, 20; Insurance Co. v. Smith, 117 Missouri, 261-289; Weiss v. Heitkamp, 127 Missouri, 23; Henderson v. Henderson, 13 Missouri, 107; Reinhardt v. Lead Mining Co., 107 Missouri, 616; Reynolds v. Bank, 112 U. S. 495; Bank v. Flathers, 45 L. R. A. 75;. Bond v. Tenriell Mfg, Co., 82 Texas, 310; Herman on Estoppel, § 573, p. 577; 1 Morse on Banking, 3d ed., § 75; Perry on Trusts, 4th ed., §45; Bob v. Bob, 89 Missouri, 411; 7 Amer. & Eng. Ency. of Law, 29.</p>

The facts, which involve the title to land in Arizona, in the territory known as the Gadsden Purchase, are stated in the opinion.

The facts, which involve the construction of certain provisions of the Bankruptcy Law, and the jurisdiction of this court of appeals from the Circuit Court of Appeals, are stated in the opinion.

The facts, which involve the validity of the Philippine law prohibiting the exportation from the Philippine Islands of silver coin, are stated in the opinion. The Philippine Commission had no' power to enact law No. 1411.

All parties to the record who appear to have any interest in the challenged ruling must be given an opportunity to be heard on an appeal, and the decision of the Circuit Court of''Appeals reversing a decree of the Circuit Court applies only to the parties brought before that court.

The facts, which involve the validity of a claim for rent of premises occupied by a department of the United States, the power of an officer of the United States to make' contracts in excess of amount appropriated by Congress, and the jurisdiction of the Court of Claims, are stated in the opinion. The Government of the United States has the absolute power to take private property for public use, just compensation being made.

The facts, which involve the constitutionality under the Fourteenth Amendment of proceedings of a street opening through a railway embankment, are stated in the opinion. A right was claimed under the United States Constitution and the highest court of Indiana in its opinion expressly denied that right, hence this'court has jurisdiction. Hair.e v. Rice, 204 U. S. 291; San Jose Land Co. v. San Jose Ranch Co., 189 U. S. 177; Green Bay &c. v. Patten, 172 U. S; 58.

Held: that assignments of such claims so made by' a bankrupt are null and void, not only as against the United States but also as against other creditors, and the claims pass by operation of law to the trustee in bankruptcy. Section 3477, Rev. Stat., does not embrace the transfer of unallowed claims against the United States when the iransfer is by operation of law.and not voluntary. • .

Ladew v. Tennessee Copper Company, 218 U.S. 357 (1910), was a United States Supreme Court case involving jurisdiction over a suit involving a citizen from another state beyond the Court's jurisdiction, suing a New Jersey Corporation, another out of state citizen. The Court asserted that under the statute jurisdiction was improper because neither party was a citizen in the jurisdiction of the Circuit Court. The Court followed the decision in Wetmore v. Tennessee Copper Company another case decided later that same year.

Wetmore v. Tennessee Copper Company, 218 U.S. 369 (1910), was a United States Supreme Court case involving jurisdiction over a suit involving a wealthy landowner from Rhode Island, U.S. Senator George P. Wetmore, suing a New Jersey Corporation for emitting toxic fumes onto land he owned in Tennessee. The Court followed its precedent in Ladew v. Tennessee Copper Company, in asserting that jurisdiction was improper because neither party was a citizen in the jurisdiction of the Circuit court, but jurisdiction was proper over the foreign British corporation that was joined to the suit.

<p>Where the trial court makes findings of facts and states conclusions of law thereon but certifies no rulings in respect of evidence, and the Supreme Court of the Territory enters a general judgment of affirmance, manifestly based upon the correctness of such findings of fact, they fumisñ a sufficient statement for' the appeal; and, in . this court, the question is whether they are sufficient 'to support the decree. Stringfellow v. Cain, 99.U. S. 610.</p> <p>Notwithstanding there may have been a prior appropriation of water, if the rights of appropriators were adjudicated in a suit of which the. ’ parties had notice, the judgment in that suit may be pleaded as res judicata in a subsequent suit to determine the rights of appropriators, and the amount awarded to an appropriator by judgment in the first suit cannot be reduced.</p> <p>The'fact that it is within the legislative power to provide administrative machinery to supervise the common use of water, does not render invalid the decree of a court providing such machinery to carry out a particular decree if the court deems it necessary and proper so to do.</p> <p>As the laws of Arizona authorize the Supreme Court to cause its judgments to be carried into execution, that court does not transcend its authority in appointing a commissioner to supervise the taking of water from a stream by the various appropriators to whom its common use is awarded and in apportioning the expense 'pro rata between them.</p>

The facts, which involve the right of a claimant to land in the Philippine Islands to register the title thereto, are stated in the opinion.

Jambs Moffitt was married in California in the year 1863 and there resided with his wife until his death on October 25, 1906. He left a large amount of property, all of which formed part of the community which existed between himself-and his wife. By a will, duly admitted to probate, Moffitt disposed of all his estate to his wife and children in the same proportions as if - he had died intestate.

This is an action for damages for failure to deliver a telegram given to the telegraph company at- Detroit, Michigan, to be delivered at Kansas City, Missouri. On August 15, 1904, the milling company was offered ten thousand bushels of wheat, of a certain kind, at $1.01 a bushel, for immediate acceptance. The telegram in controversy was sent to accept the offer.

<p>Where the prayer of a bill by a trustee is simply for permission to resign the trust and turn over the subject-matter thereof to another trustee in accordance with the terms of the ^agreement itself, the action cannot be treated as one of, or in the nature of, interpleader.</p> <p>Where the filing of a cross bill would tie up property pending determination of title, the court does not err in requiring the party filing it, to apply for an injunction and give a bond as reqfiired by the rules of the court; nor will this court assume that the amount of the bond was too large when such party did not invoke further action, but took an appeal before the expiration of the time allowed for complying with the provisions of the decree.</p>

The facts, which involve the validity of certain taxation on property claimed to be exempt under provisions of the constitution of the. State of Louisiana, are stated in the opinion. This court has jurisdiction. The Federal question was properly presented. Kansas City Power Co. v. Julian, 215 U. S. 589; Railway Co. v. Snell, 193 U. S. 30; Hammond Packing Co. v. Arkansas, 212 U. Si 322; Leathe v. Thomas, 207 U. S. 72; Southern R. R. Co. v. German National Bank, 207 TJ.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.</p> <p>The facts, which involve the constitutionality, under the contract clause, of certain provisions of the Louisiana constitution of 1898, -are stated in the opinion.</p>

Held: under .the circumstances shown, that a prisoner would be released upon habeas corpus where the proceedings were under § 1014 of the Revised Statutes.

Held: owned or employed by the United States, or by any department thereof, for any public use, or as waiving any objection to any proceeding instituted to enforce any such claim.” Section 3754 provides for the protection of persons asserting claims against such property, and that after final judgment given in the court of last resort, to which the Secretary of the Treasury may deem proper to carry *464 the proceedings,…

The facts, which involve the right of recovery in the Philippixie Islands of damages caused by alleged criminal acts of defendant, in a civil action after the defendant’s acquittal in a criminal action, are stated in the opinion. There was no determination in the criminal action of the matter in controversy in this actiori such as to warrant the application of the principle of res judicata.

Held: and the members of Congress were, in November, 1908, elected under the apportionment act of 1900. They were, as we may judicially know, admitted to their respective seats, and, as we may also take notice, their successors have been elected according to the' same scheme of apportionment. The thing sought to be prevented has been done, and cannot be undone by any' judicial action.

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.</p> <p>The facts are stated in the opinion.</p>

The facts, which involve the validity of indictments for embezzlement. against a clerk of the District Court of the United States and the construction of statutes relating to' the fees, salaries and accounts of clerks of United States courts, are stated in the opinion.

<p>Where the Circuit Court held the indictment insufficient because the facts alleged did not constitute a crime under the statute as it held that the latter should be construed, this court has jurisdiction of an appeal by the Government under the act of March 2, 1907, c. 2564, 34 Stat. 1246.</p> <p>Where the indictment charges an officer of a national bank with willful misapplication of funds of the bank, induced by, and resulting in, his advantage, with the illegal intent to injure and defraud the bank by receiving and discounting with its moneys an absolutely unsecured promissory note of a named party whereby the proceeds of the discount of the note were wholly lost to the bank, it sufficiently charges a violation of § 5209, Rev. Stat. It is not necessary to allege conversion by the officer of the bank and also by the recipient of the proceeds of the discount.</p> <p>A charge that a note for an amount was received for discount which was wholly unsecured and which sum was lost to. the bank amounts to a direct allegation that the loss was caused by the discounting.</p> <p>A right of appeal is not essential to due process of law, Reetz v. Michigan, 188 U. S. 505, and neither due process of law nor equal protection of the law is denied to the accused by the act of March 2, 1907, c. 2564, 34 Stat. 1246, giving the Government an appeal to this court under certain conditions from judgments sustaining demurrers to, or motions to quash, indictments because the same, appeal is not allowed to the accused in case the demurrer or motion to quash is overruled.</p> <p>Even if, and not now decided, the equal protection provision of the Fourteenth Amendment apply to the. United States, it can have no broader.meaning when so applied than when applied to the States; and even if Congress may not discriminate in legislation, it has the power to classify and the classification in, the act of March 2, 1907, is well within such power.</p>

The facts, which involve the validity of an indictment for misapplication of funds of a national bank, are stated in the opinion. The trial court dismissed counts numbered 1-7 in the exercise of its discretion.

<p>If the law of the State permits it, the fact that the making of an assessment is delayed does not detract from the authority or the duty of the assessing power to make it.</p> <p>The fact that the assessment is.made by memoranda on the assessment envelope or jacket, does not render it ineffectual as lacking in due process of law because not recorded in a permanent book, and where the state court has held that an assessment so made is good under the law of the State, this court will not hold that it denied the party assessed due process of law or equal protection of the law.</p> <p>A construction by the -state court that aii assessment made by the board of assessors cannot enter into an arrangement' with the parties assessed contemplating the non-payment of the tax based thereon' does not deprive those parties of any constitutional rights where no ground is shown for impugning the assessment so made.</p> <p>The Federal Constitution does not preclude a State from requiring a corporation actually controlling and exercising a franchise to pay the tax legally assessed thereon, although not the actual owner of the franchise.</p> <p>When the record does not show that others similarly situated escaped the taxation imposed on the plaintiff in error, and the state court has declared that if any escaped they are still liable, this court regards the contention of denial of equal protection of the law as without merit.</p>

Upon a prosecution originating in the Police Court óf the city of Hartford, in Hartford County, Connecticut, the plaintiff in error was tried and convicted in the Superior Court of the county upon an information alleging, in six counts, the commission of offenses against chapter 238 of the Public Acts of Connecticut of 1907.

<p>Decided on authority of Griffith v. Connecticut, ante, p. 563.</p>

Held: on the au *587 thority of the Spratley case, that the association was doing business in the State. These general words must be qualified, as we have seen, like words in the cited case should be qualified, to protect transactions which had been entered into and to give them the benefit of the law in view of which they were made.

<p>Under the Criminal Appeals Act of .March 2, 1907, c. 2564, 34 Stat. 1246, when the indictment is quashed this court is confined to a consideration of the grounds of decision mentioned in such statute, United States v. Keitel, 211 U. S. 370, .and there is- á similar limit when the case comes up from a judgment sustaining a special plea in bar.</p> <p>Although mere continuance of result of a crime does not continue the crime itself, if such continuance of result depends upon continuous cooperation of the conspirators, the conspiracy continues until the time of its abandonment or success.</p> <p>A conspiracy in restraint of trade is -more than a contract in restraint of trade; the latter is instantaneous, but the former is a partnership in criminal purposes and as such may have continuance in time; and so held in regard to a conspiracy made' criminal by the Anti-trust Act of July 2, 1890.-</p> <p>Whether the indictment in this case charges a continuing conspiracy with technical sufficiency is not before the court on the appeal taken under the Criminal Appeals Act of March 2, 1907, from a judgment sustaining special pleas of limitation in bar.</p> <p>Allegations in the indictment consistent with other facts alleged that • a conspiracy continued until the date of filing must be denied under the general issue and cannot be met by special plea in bar. •</p> <p>This court, having on an appeal under the Criminal Appeals Act of; March 2, 1907, held that allegations as to continuance of a conspiracy cannot be met by special plea in bar, all defenses, including that of limitations by the ending of the conspiracy more than. chr.ee years before the finding of the indictment, will be open under the general issue and unaffected by this decision.</p>

Held: although the general rule is that the raising of a Federal question in a petition for rehearing in the highest court of the State is too late, yet when a question is thus raised, and it is actually considered and decided by the state court the right to review exists.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.</p> <p>The facts, which involve the constitutionality of certain ordinances of the city of Columbus, Georgia, are stated in the opinion.</p> <p>The contract conferred upon the Water Works Company-no exclusive right to furnish the city and its inhabitants with water; and hence the construction by the city of its own water system would offend no constitutional principle.</p> <p>The source of supply selected having proven deficient, and having been practically abandoned, the Water Company has no exclusive right to supply the city with water derived from another source. The city was therefore at liberty to seek-another source in order to remedy these deficiencies. Stein v. Bienville Water Supply Co., 141 U. S. 67.</p> <p>Even if the contract, was in all respects valid and binding the city has .been absolved from its obligations thereunder by reason of the failures and defaults on the part of the Water Company.</p> <p>Under conditions existing at the time, the city not only had the right, but was under the imperative duty in the exercise of its police power to make provision for an adequate supply of wholesome water. Walla Walla v. Wafer Co., 172 U. S. 1; Boston Beer Co. v. Massachusetts, 97 U. S. 28; Butchers’ Union Co. v. Crescent City Co., Ill U. S. 746.</p> <p>In this exercise of the police power of the' city there was no injustice to the stockholders of the Water Company. Nor. Pac. Ry. Co. v. Duluth,'208 U. S. 583.</p> <p>The opinion and order of the court that the decree in favor of the city should be made conditional upon the purchase of any part of thé present water, system is not founded upon the pleadings, and is. beyond the jurisdiction of the court, as "being in violation, of the right of private contract. Burke v. Davis, 81 Fed. Rep. 907; Rejall v. Green-hood, 92 Fed. Rep. 945.</p> <p>The inconvenience or loss to the bondholders which may result from the decree to which the city is entitled cannot be considered by the court.. Woodruff v. Gravel Co., 18 Fed. Rep. 753; Attorney General v. Birmingham, 4 Kay & J. 539; Weaver v. Ureka Lake Co., 15 California, 274; Hamilton Gas Light Co. v. Hamilton, 146 U. S. 258; In re Brooklyn, 143 N. Y. 596; S. C., 166 U. S. 681.</p> <p>It is only when the relief sought is discretionary that the court may impose conditions. Fosdick v. Scholl, 99 U. S. '235; Kneeland v. American Loan & Trust Co., 136 XJ. S. 89. The city was not under obligations to purchase, and the mere fact that it had an option to do so gives no equity to the other party if it refuses to exercise such option. Farmers’ Loan & Trust Co. . v.. Galesburg, 133 U. S. 156, does not apply.</p> <p>There is no contractual relation or privity of contract between the city and the bondholders; so far as the city is concerned they are mere volunteers seeking to protect their own interests, and to preserve the value of their security. If the city had the legal right to a rescission of the contract as against the-Water Company there is no superior equity of the bondholders. Farmers’ L. & T. Co, v. Galesburg, 133 U. S. 159.</p> <p>There is no such diversity of citizenship as will support the jurisdiction on that ground. Dawson v. Columbia Ave. &c. Co., 197 U. S. 178; Mercantile Trust & Deposit Co. v. Columbus, 203 U. S. 198. Whenever the want of jurisdiction becomes apparent in the progress of the cause, the bill should be dismissed. ’ Morris;v. Gilmer, 129 U. S. 315.</p> <p>The contract in. this case has .been violated by the city of Columbus rather than by the Water Company; but the whole question is settled by the acceptance by the city of the modifications of the contract. Gas Co. v. San Francisco, 9 California, 453, 475; Allegheny City v. Mc-Clurkan, 14 Pa. St. 81; Water Co. v. Neosho, 136 Missouri, 498; Waterworks Co. v. Crestón, 101 Iowa, 687; Water Supply Co. v. Ludington, 119 Michigan, 480; Waterworks Co. v. Joplin, 76 S. W. Rep. 969; Owensboro Water Co. v. Duncan, 32 S. W. Rep. 478; National Waterworks Co. v. Kansas City, 62 Fed. Rep. 853, 866; Illinois Trust and Savings Bank v. Arkansas City, 76 Fed. Rep. 271; Beadles v. Smyser, 209 U. S. 403.</p> <p>The police power of a municipality cannot be invoked to modify or abrogate its contractual obligations; nor can it contravene the Constitution of the United States or infringe any right granted or secured by that instrument. Jacobson v. Massachusetts, 197 U. S. 25; Russell’s Police Power of the State, §§ 53, 54, 66, 71, 86. Hume v. Laurel Hill Cemetery, 142 Fed. Rep. 552; West Street B. R. Co. v.. Chicago, 201 U. S. 506; N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 567; Nor. Pac. Ry. Co. v. Duluth, 2Ó8 U. S. 583, 596; C., B. & Q. Ry. v. Drainage Commrs., 200 U,. S. 561; Si. Paul, Minneapolis &c. Ry. Co. v. Minnesota, .214 U. S. 497, do not apply to this case.</p> <p>Police power cannot be exercised unless, it has some fair tendency to accomplish, or aid in the accomplishment of, some purpose for which that power can be used. Welch v. Swasey et al., 214 U. Si 91.</p> <p>A court of equity has power to so mould its decree as to grant relief upon such terms as in its' judgment satisfy the equities of the particular case. The equitable character of an option to purchase in a contract of this kind has been distinctly recognized. Indianapolis v. Consumers’ Gas Trust Co., 144 Fed. Rep. 640; and see, where a similar option to purchase was upheld in favor of the city as against the water company, Fayetteville v. Water,. L. & P. Co., 135 Fed. Rep. 400; Castle Creek Water Co. v. Aspen, 146 Fed. Rep. 8; Bristol v. Waterworks Co., 19 R. I. 413; Water Supply Co. v. Braintree, 146 Massachusetts, 482; Water Co. v. Cherryvale, 65 Kansas, 219; Los Angeles v. Water Co., 177 TJ. S. 558, 583.</p> <p>Where a case for relief is made in the bill, it may be given by imposing conditions on the complainant consistently with the rules of. equity, in the discretion of the court. Walden v. Bodley, 14 Pet. 164; Buchannon v. Upshaw, 1 How. 56, 84; Knéeland v. American Loan &c. Co., 136 TJ. S. 89; Thomas v. Brównville &c. B. B. Co., 109 TJ. S. 522; Bourke v. Hefter, 202 Illinois, 321; Lock-hart v.. Leeds, 195 TJ. S. 437; Knoxville v. Water Co., 212 TJ. S. 1, 18.</p> <p>The legislation impaired the obligation of the contract in this case; see 203 TJ. S. 311. Water Co. v. Defiance, 191 TJ. S. T84; Dawson v. Columbia Ave. &c. Co., 197 U. S. 178, have no application' to this case.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p>

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

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

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

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

<p>In error to the Court of Civil Appeals for the Fifth Supreme Judicial District of the State of Texas.</p>

<p>Appeal from the Court of Appeals of the District of Columbia.</p>

<p>In error to the Circuit Court of the United States for the District of South Carolina.</p>

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

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

<p>In error to the Circuit Court of the United States for the District of Rhode Island.</p>

<p>In error to the District Court of the United States for the Eastern District of Pennsylvania.</p>

<p>In error to the District Court of the United States for the Eastern District of Pennsylvariia.</p>

<p>In error to the District Court of the United States for the District of Colorado.</p>

<p>In error to the District Court of the United States for the District of Colorado.</p>

<p>In error to the District Court of the United States for the District of Colorado.</p>

<p>In error to the Circuit Court of the United States for the Eastern District of New York.</p>

<p>Appeal from the District Court of the United States for Porto Rico.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>In error to the District Court of the United States for the District of Colorado.</p>

<p>In error to the Court of Civil Appeals for the Third Supreme Judicial District of the State of Texas.</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of California.</p>

<p>In error to the Court of Appeals of the State of Maryland.</p>

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

<p>In error to the Circuit Court of the United States for the Eastern District of Missouri.</p>

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

<p>In error to the District Court of the United States for the Northern District of California.</p>

<p>In error to the District Court of the United States for Porto Rico.</p>

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

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

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

<p>Appeal from the Court of Appeals of the District of Columbia.</p>