Volume 219 — United States Reports

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>On March 4, 1909, upon the assumed authority of the second section of an act of Congress approved July 7, 1898, c. 576, 30 Stat. 717, a grand jury in the Circuit Court of the United States for the Southern District of New York found a true bill against the Press Publishing Company, charging the commission of alleged criminal libels, set out in an indictment composed of fourteen counts. The asserted libels were contained in six issues of The World, a newspaper printed in the city of New York, of which newspaper the defendant in error, a New York corporation, was publisher. The first seven counts dealt with the publication of the libels by circulating copies of the newspaper containing the same within the reservation and military post in Orange County, N. Y., known as West Point. The remaining counts dealt with the publication of each of the libels by the delivery of a copy of the issue of The World containing the same to a post office inspector at his office in the Post Office Building in the city of- New York. Both West Point and the Post Office Building were averred to be places within the exclusive jurisdiction of the United States. Those who were alleged jn each count to have been criminally libeled were at the time of the publications the President of the United States, the Secretary of War and certain private individuals. The alleged libelous articles related to the purchase by the United States of the Panama Canal. We need not state the contents of the articles, since in the view taken of the case we shall be only called upon to determine whether, conceding the publications to have been libelous as charged in the indictment, they constituted offenses against the United States within the purview of the act of 1898.</p> <p>The case went to trial upon a plea of not guilty. The circulation of the newspapers containing the alleged libels on the military reservation and their delivery to the inspector at the post office as charged in the indictment was admitted by the defendant. The Government on the other hand admitted that all of the issues of The World newspaper referred to in the indictment were printed in the defendant’s printing establishment in the city of New York and were circulated therefrom.</p> <p>At the close of the evidence introduced by the Government the defendant moved to quash the. indictment or to instruct a verdict of acquittal, upon the following grounds:</p> <p>“First. The court has no jurisdiction in this case because there is no statute of the United States authorizing the prosecution.</p> <p>“Second. The act of 1898 does not apply to the case as disclosed by the evidence.</p> <p>“Third. If construed so as to cover the acts shown by the evidence, the act is unconstitutional.</p> <p>“Fourth. The offense, if any, was committed wholly within' the jurisdiction of the State of New York and was punishable there.</p> <p>“Fifth. The defendant being a corporation is incapable of committing the offense charged in the indictment.”</p> <p>The 'court announced that it had concluded that the indictment was not authorized by the act of 1898, and therefore the motion to quash would be sustained. Before, however, any formal entry to that effect was made, in order to obviate any question of double jeopardy, upon motion of the attorney for the United States a juror was withdrawn, and. thereafter a judgment was duly entered quashing the indictment, it being expressly recited in the judgment that it was based upon a construction of the statute. To review the action of the trial court this writ of error is prosecuted by the United States, under the authority of the act of March 2, 1907, c. 2564, 34 Stat. 1246.</p> <p>For history and interpretation of the assimilative statute act of July 7, 1898, see first Federal crimes act of April 30, 1790; first assimilative statute of March 3, 1825, 4 Stat. 115, prepared by Justice Story, and construed in United States v. Paul, 6 Pet. 141, to the effect that “the laws of the State'.' were only those in force March 3,1825; second assimilative statute of April 5, 1866, c. 24, 14 Stat. 13; § 5391, Rev. Stat.; act of 1898, 30 Stat. 717, and of March 4, 1909, c. 321, 35 Stat. 1145; see also Franklin v. United States, 216 U. S. 559.</p> <p>A post office is “a place” within the meaning of the act of 1898. United States v. Andem, 158 Fed. Rep. 996; United States v. Tucker, 122 Fed. Rep. 518; Sharon v. Hill, 24 Fed. Rep. 726, 731.</p> <p>As to what constituted criminal libel under the New York statutes in 1898, see New York Penal Code of 1881, §§ 242-251. Except as thereby modified the general rule of the common law as to the place where one may be prosecuted for libel prevails in New York.</p> <p>The crime of libel does not consist in the mere composition of the article, or the physical production of the paper, but in exnosing or publishing the defamatory matter to the community. 2 Roscoe, Crim. Ev. 890, 897; Wharton, Crim. Law, 8th ed., 1618; 2 Bishop, Crim. Law, 6th ed., 905, 949; Townsend, Slander and Libel, 3d ed., 144:</p> <p>One who writes a libel in one county with intent to publish and who afterwards publishes it in another may be iridicted in both. 18 Am. & Eng. Ency. of Law, 1119, and cases cited; Commonwealth v. Blanding, 3 Pick. 304, approved in the Palliser Case, 136 U. S. 257, 266; and see In re Cook, 49 Fed. Rep. 833; Armour Packing Co. v. United States, 153 Fed. Rep. 1, 5; Commonwealth v. Macloon, 101 Massachusetts, 1; Commonwealth v. Pettes, 114 Massachusetts, 307, 311; In re Dana, 7 Ben. 1; In re Buell, 3 Dill. 116; Haskell v. Bailey, 25 U. S. App. 99; State v. Kountz, 12 Mo. App. 511; Burton v. United States, 202 U. S. 344, 388.</p> <p>The act of July 7, 1898, applies to a libel circulated in West Point or the Post Office Building, although printed outside. The same act or series of acts may constitute an offense'equally against the United States and the State, subjecting the guilty party to punishment under the laws of each government. Cross v. North Carolina, 132 U. S. 131, 139.</p> <p>West Point and the Post Office Building are places over which the United States has exclusive jurisdiction within the terms of § 2 of the act of 1898. The Constitution gives Congress plenary legislative, power over such places. Offenses committed therein are against the National sovereignty.</p> <p>The court below cited no direct authority and there is none to support its position. At different times Congress has passed assimilative acts without attempting to except libel from their general terms. The last was approved on March 4,1909. On the other hand, it has distinctly recognized that all crimes were intended to be included therein.</p> <p>The defense that'because the offense charged may be 'ffied in New York and therefore was not intended to be included in the act of 1898 is without merit; the State of New York cannot punish an offense committed at West Point against the United States. Such offense must be punished as here attempted, or be “dispunishable.” United States v. Davis, 5 Mason, 356.</p> <p>The Circuit Court properly entertained and passed upon the motion to quash on the trial. 1 Bishop’s New Cr. Proc., § 759; Reg. v. Heane, 9 Cox, Cr. C. 433; Justice v. State, 17 Indiana, 56; Bell v. Commonwealth, 8 Gratt. 600.</p> <p>This is not a moot case, since, should the judgment of the court below be reversed, the defendant may be placed on trial again.</p> <p>Even though the language of the act of July 7, 1898 were literally broad enough to cover the case at bar, it should not be so construed. If there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the accused. United States v. Clayton, 2 Dill. 219; United States v. Reese, 5 Dill. 405, 414; United States v. Whittier, 5 Dill. 35; United States v. Sheldon, 2 Wheat. 119; United States v. Wiltberger, 5 Wheat. 76; United States v. Garretson, 42 Fed. Rep. 22, 25.</p> <p>The general acquiescence of legal minds for nearly a century in the negative of the proposition, now asserted for the first time by the Government, forbids the interpretation of the statute in accordance with that proposition. United States v. Hudson, 7 Cranch, 32.</p> <p>. A literal construction of the statute would lead to injustice, oppression and absurd consequences. United States v. Kirby, 7 Wall. 482, 486.</p> <p>According to the theory of the Government, the publication of a single newspaper article might constitute as many distinct crimes as there are places under the- jurisdiction of the United States, in the whole country. It would thus be possible to crush an owner or editor, under an intolerable burden of crime. Such a construction will not be put upon the act if it can be avoided, for it contravenes the fundamental principle of criminal jurisprudence that crime is not divisible. Wharton, Crim. Law., 10th ed., §27; State v. Commissioners, 2 Murphy (N. C.), 371; State v. Cooper, 13 N. J. L. 361, 376.</p> <p>The constitutional objection is also grave, for such a law does, in substance, abridge the liberty of speech and of the press, — that is, if to abridge such liberty means to so curtail it that no owner or editor of a paper could with safety freely discuss public affairs.</p> <p>The construction contended for by the Government is not only unnecessary-to remedy the definite evil aimed at by Congress, but would create an evil which it was the intention of Congress to avoid. United States v. Palmer, 3 Wheat. 610, 630, 632; Holy Trinity Church v. United States, 143 U. S. 457.</p> <p>As to history of the assimilative acts see 1 Life of Joseph Story, Boston, 1851, pp. 244, 293, 297; The American Nation, Hart, 1819-1829; “Reaction toward State Sovereignty”, 299; Annals of Congress, 17th Cong., 2nd Sess. 1822-1823, 929; 1 Debates in Congress, Gales & Seaton, 1824-1825, 157, including debate of Mr. Wickliffe, of Kentucky, Daniel Wesbter and Mr. Barbour.</p> <p>The whole history and life of the country condemn the construction asserted by the Government. This is shown by the history of the sedition law of July 14, 1798, 1 Stat. 596. See McMaster’s Hist. of People of U. S. 397; Von Holst, Const. Hist, of U. S. 142; 3 Wilson, Hist, of Am. People, 167; 2 Curtis, Const. Hist, of U. S. 3; 7 Jefferson’s Writings, Putnam ed., 267, 295, 309.</p> <p>The offense charged in the indictment is not even within the letter of the statute.</p>

Held: as held by the courts below, that the contractor must bear the loss caused by the typhoon. The facts, which involve the construction of a contract *18 for a public work with, the Government of the Philippine Islands, are stated in the opinion.

Held: in this case, that the suit had been properly brought, and that the United States was not necessarily a party, the suit being begun in the name of the United States to the real plaintiff’s use.

• The facts, which involve the constitutionality under the equal protection clause of the Fourteenth Amendment of certain provisions of the Code and of the constitution of the State of Mississippi, are stated in the opinion. Section 3559, Annotated Code, as now construed by the Supreme Court of Mississippi, violates the Fourteenth Amendment in that it denies to railroad corporations the equal protection of the laws.

<p>It is not the province of this court on'writ of error to reverse if dissatisfied with the verdict of the jury; if there was evidence proper for the consideration of the jury, objection that the verdict was against the weight of evidence or that excessive damages were allowed cannot be considered.</p> <p>An amendment to a bill of exceptions, after bond on appeal had been given and approved, so as to make the record conform to the fact as to the conditions under which certain testimony introduced by plaintiff in error on the trial was given, held not error, as it was not un- ■ justified or objected to and the exception related simply to the inclusion of such testimony in the record.</p> <p>A judgment cannot be set aside on an exception to the refusal of the trial court to allow an expert to testify where the record does not show what testimony the witness was expected to give or that he was qualified to give any.</p>

Held: whether that grant was from the State or from a private person.” The application of the doctrine of governmental power, as just stated, to a condition like the one here in question was aptly pointed out by the Supreme Court of' Illinois in Bertrand v. Taylor, 87 Illinois, 235, where, in considering the Illinois Burnt Record Act, the court said: ■ “It was demanded as a matter of safety in a great emergency.

<p>ERROR to THE DISTRICT COURT ' OF the united states FOR THE DISTRICT. OF IDAHO.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion.' Jurisdiction in a criminal case is never presumed,, but must always be shown, is never waived by a defendant, and want of jurisdiction can be attacked at-any stage of a criminal proceeding or even collaterally. In re Neilson, 131 U. S. 176; United States v. Rogers, 23 Fed. Rep. 662; In re Mills, 135 U. S. 270; In re Graham, 138 U. S. 451.

Held: following the decisions of the courts of Pennsylvania, that the statutes made unlawful business transactions within the State by a foreign corporation which had not complied with their provisions. And it was said: “Nor does the award of the engineer have any efficacy in this case.

Held: that, where public interests so demand; that Amendment does not prohibit a State placing the banking, business under legislative control and prohibiting it except under prescribed conditions.

The facts, which involve the constitutionality of the banking act of Nebraská, creating a depositors’ guaranty fund, are stated in the opinion. Banking is a proper subject of legislative control. State ex rel. Woodmansee, 1 N. Dak. 245; Morse on Banking, 1; People v. Barton, 6 Cow. 290; People v. Insurance Co., 15 Johns. 358; People v. Brewster, 4 Wend. 498; Nance v. Hemphill, 1 Alabama, 551; Austin v. State, 10 Missouri, 591.

The facts are stated in the opinion. The so-called Bank Guaranty Law is not a regulation" of either banks or banking. It is a law creating an insuratíce scheme to be conducted by the State, and the expenses raised by general taxation. 27 Opin. Attorney , General, 272. The insurer is the State. The fund for the payment of losses is derived5 from premiums paid by banks and the fund for the payment of expenses from general taxation.

<p>A state statute regulating the receipt of deposits of money is not a' burden on, or regulation of, interstate or foreign commerce simply because such deposits are likely to be transmitted to other States or. foreign countries; the deposit is an independent transaction preceding the transmission.</p> <p>The provisions of the private banking act of New York of 1910, considered in this case, are not unconstitutional as depriving persons engaged in the receiving and .transmitting of small sums of money of their property without due process of law or denying them the equal protection of the law either on account of the regulations to which such persons are subjected or by reason of the exception of other classes of banks and bankers therefrom. ‘</p>

The facts, which involve the constitutionality of certain provisions as to taxation and registration of land of the Revenue and Taxation Act of Kentucky of March, 1906, arq stated in the opinión.

- The facts, which involve the right of a grantee of lands under the act of June 4, 1898, 30 Stat. 430, are stated in the opinion. Defendants in error never acquired any vested interest in the right of way. The location of such right of way made and approved under the act of June 4, 1898, was rendered void for failure to commence grading or other work on such location within six months after the filing of the maps showing such location, as required by § 3 of the act.

The facts, which involve the jurisdiction of this court of a direct appeal under § 5 of the. Circuit Court of Appeals Act of 1891, are stated in the opinion.

The facts are stated, in the opinion. The closing of public highways, such as^ streets, roadways and alleys, when done under and pursuant to authority conferred by a valid act, and where there has been no want of reasonable care or skill in the execution of the power, does not constitute a taking of private property within the meaning of the Constitution. This is especially true where ingress and egress to and from land has been closed in but one direction.

This was an action to recover the value of goods received by the Atlantic Coast Line Railroad at a point on its line in the State of Georgia for transportation to points in other States. The agreed statement of facts showed that the goods were safely delivered by the Atlantic Coast lane Railroad to connecting carriers, and were lost while in the care of such carriers, and the question is whether the initial carrier is liable for such loss.

<p>Decided on authority of Atlantic Coast Line R. R. Co. v. Riverside Mills, ante, p. 186.</p>

The facts, which involve the constitutionality and construction of §§ 1176, 1177 of the Revised Statutes relating to the District of Columbia prohibiting and punishing gift-enterprises, and the validity of a conviction thereunder, are stated in the opinion.

Bailey v. Alabama, 219 U.S. 219 (1911), was a United States Supreme Court case that overturned the peonage laws of Alabama. Bailey challenged an Alabama law that effectively criminalized leaving a job after receiving an advance payment, arguing that it enforced involuntary labor, but he initially lost a case in the Fuller Court, despite support from the Roosevelt administration. When the case reached the Court again Bailey won in a 5-2 decision. Oliver Wendell Holmes dissented.

Held: however, that no other assessment than that made by the statute was necessary in order to determine the extent of the bank’s liability.

The facts, which involve the constitutionality of an act of the State of Missouri to prevent fraud in the purchase and sale of grain and other commodities, are stated in the opinión. The act denies to plaintiff in error the right to contract. Under the Fourteenth Amendment, freedom of contract is guaranteed. Allgeyer v. Louisiana, 165 U. S. 578, 589; Holden v. Hardy, 169 U. S. 366, 390; Lochner v. New York, 198 U. S. 45, 53; Adair v. United States, 208 U. S. 161, 172.

OF COLUMBIA. The facts, which involve the validity of an order honorably discharging an officer of the United States Army under the act of October 1,1890, are stated in the opinion.

The facts, which involve the constitutionality of certain provisions of the Code of Alabama, are stated in the opinion. The statute of Alabama (Cod.e of 1896, § 2619), attacked as unconstitutional, is not a condition to the doing of business in the State imposed on foreign corporations; neither is it a penalty put upon one class of litigants; neither is it a part of the costs of one class of cases.

Held: the liability of the sureties was enlarged beyond their undertaking. The effect of this was held to. discharge the sureties. In this we think the court erred. The plaintiff, to make out its case, introduced in evidence, together with other matters, the pleadings, the judgment, the return of the sheriff upon the execution for a return of the property unsatisfied, and the return bond.

APPEALS FROM THE CIRCUIT COUR't. OF APPEALS FOR THE SECOND CIRCUIT. The facts, which involve the construction of certain provisions of the Bankruptcy Act of 1898, are stated in the opinion. The bankruptcy law forbids the allowance of interest on provable debts after the date of the filing of the petition. Sections. 57, 57h, 63; and see corresponding provision,. § 19, law of 1867; Collier on Bankruptcy, 7th edi, 701.

Muskrat v. United States, 219 U.S. 346 (1911), was a landmark United States Supreme Court case in which the Court delineated the authority of United States federal courts to hear certain kinds of cases under the Case or Controversy Clause of the United States Constitution.

Held: that the company’s rights to lieu lands embraced in a selection were superior to those of a purchaser under the Timber and Stone Act who filed pending final decision by the Secretary and between the time of decision of the Secretary holding that the selections were unlawful and the subsequent reversal of that decision; and that the final decision related back to the date of the original selection.

<p>Decided, on authority of Weyerhaeuser v. Hoyt, ante, p. 380.</p>

<p>Decided on authority of Weyerhaeuser v. Hoyt, anteojo. 380.</p>

Held: That the advance was unreasonable and that the rate ought not for the future to exceed $3.40 per ton.

The facts, which involve the constitutionality of a law of Arkansas relating to equipment of railway trains, are stated in the opinion. The full crew act of Arkansas is unconstitutional because it undertakes to regulate interstate commerce and is repugnant to § 8, Art. I of the Constitution of the United States. Sherlock v. Alling, 93 U. S. 102; Hall v. DeCuir, 95 U. S. 487; Railway Co. v. Husen, 95 U. S. 465; Gibbons v. Ogden, 9 Wheat. 1; Atl.

• . The facts, which involve the construction of provisions of the Interstate Commerce Act relating to payrnent of fares on railways, are stated in the opinion. The object of the act of Juné 29, . 1906, was to prevent discrimination, and to place all passengers and shippers on the same level, with equal rights and privileges.

<p>Louisville & Nashville Railroad Company v. Mottley, ante, p. 467, followed to effect that under the act of June 29, 1906, c. 3591, 34 Stat. 584, amending the act of February' 4, 1887, c. 104, § 2, 24 Stat. 379, a carrier cannot accept any compensation other than cash for interstate transportation, and. the delivery of such transportation in exchange for advertising is a violation..of the act; and it is no defense that such a transaction is permitted hv a state statute.</p> <p>No state enactment can aVail when the subject has been covered by an act of Congress acting within its constitutional powers. In such a case the act of Congress is paramount and the state law must give way.</p>

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911), was a United States Supreme Court decision that held that while normally, in order for the court to hear a case, there must still be a controversy outstanding, when the issue was such that it would be of short duration, and would most likely become moot before appellate review could take place, and that the issue was likely to reoccur, then the court could hear the issue.

The facts, which involve questions of contempt for violation of injunction after decision of this court and before issuing of the mandate, are stated in the opinion. This court is possessed of . the power to so deal with the property as to make its final decision and judgment effectual.

The facts, which involve rights of a patentee under the forest law acts of Jun^ 4, 1897, and March 3, 1905, are stated in the opinion. Title passed to the United States upon the recording of the deed of relinquishment. Moses Land Co., 34 L. D. 458, holding that title did not pass to the United States by the recording of the deed and delivery of the same to the local land officers, does pot reach, the gist of the question.

The facts, which involve, the constitutionality of a law, of the State of Iowa, are stated in the opinion. The statute is void as in violation of the due process provision of the Fourteenth Amendment. Freedom to enter into contracts is both a liberty and a property right, secured alike to all and not to be encroached upon by the State under guise of its police power.

The facts are stated in the opinion. Counsel hardly presumes to expect this court to reconsider a conclusion reached by unanimous agreement, but respectfully suggests that the opinion is based on an erroneous assumption of fact and on a principle of law not supported by former decisions. The erroneous assumption of fact is that the property taken by the law under consideration is-a comparatively insignificant portion of the bank’s capital.

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

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

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

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

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