Volume 227 — United States Reports

The facts, which involve the constitutionality under the commerce clause of.the Federal Constitution of certain rules of the Mississippi Railroad Commission relating., to delivery of cars for interstate shioments, are stated in the opinion.

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. .</p> <p>The facts, which involve the jurisdiction of this court of appeals under § 256 of the Bankruptcy Act, are stated in the opinion. s</p> <p>The appeal is properly taken under § 256. (1) of the Bankruptcy Act, Judicial Code, § 252. The present proceeding is one in bankruptcy as distinguished from a controversy arising in bankruptcy proceedings. Coder v.</p> <p>Arts, 213 U. S. 223; Hewitt v. Berlin Machine Works, 194 U. S. 296; Tefft, Weller & Co. v. Munsuri, 222 U. S. 114.</p> <p>By the filing of its petition the appellant instituted a proceeding in bankruptcy as to the appellee’s claim under §§ 2, 7 and 57k of the Bankruptcy Act. In re Mueller, 135 Fed. Rep. 711.</p> <p>All the subsequent steps in the proceeding were based directly upon this petition, and the decision appealed from is the final one upon such petition. It will be noted that Gaines, upon his own appeal to the Circuit Court of Appeals, invoked the jurisdiction of that court first by-taking an appeal from the decision of the District Court, procuring the allowance, of the same, and filing his assignment of errors within the ten days allotted for that purpose and it was only at a later date, and seemingly as an afterthought, that his petition for review was filed.</p> <p>No decision was ever made by the Circuit Court of Appeals as to whether the appeal or the petition to review was the proper method to reach that court. Both proceedings 'were taken by the appellee who was appellant in that court. Neither was the useless formality of a motion to dismiss resorted to, since in any event the controversy would have been adjudicated upon in the proper proceeding. Fisher v. Cushman, 103 Fed. Rep. 8.60; In re Worcester County, 102 Fed.. Rep. 808; Lockman v. Lang, 132 Fed. Rep. 1; In re Schoenfeld, 183 Fed. Rep. 219.</p> <p>Here the proceeding was directly to disallow the Gaines claim and his only proper method of invoking the jurisdiction of thé Circuit Court of Appeals was by appeal under § 25 of the act. Matter of Loving, 224 U. S. 183.</p> <p>The amount in controversy exceeds $2,000 within the definition of this requirement in Gray v. Grand Forks Mercantile Co., 138 Fed. Rep.,344.</p> <p>A Federal question is presented within § 709, Rev. Stat., since a construction of the Bankruptcy Act is involved - and the decisions below cannot be sustained without reference to its provisions. Fidelity Co. v. Bray, 225 U. S. 205.</p> <p>The appellee, in his brief, tacitly assumes that a Federal question is presented, since nothing is said upon this branch of the subject.</p> <p>The fact that an incidental question of rank or priority of the claim may be included in this proceeding does not defeat the right of appeal. Cunningham v. German Ins. Bank, 103 Fed. Rep. 932.</p>

Held: in this case, not to indicate a combination on the part of those parties to injure the defendant within the meaning of § 7 of the Sherman Anti-trust Act. A contract by which a manufacturer of a patented article appoints another who docs not manufacture or sell like articles, his exclusive agent for the output of the factory, held in this case not to violate the Sherman Act.

• • The facts, which involve the construction of §§ 4884 and 4887, Rev. Stat., as affected by the Treaty of Brussels of 1900 and the effect of prior patents in foreign countries on the duration of an American patent, are stated in the opinion.

Held: is deceptive; doubtless signers were deceived by believing that the petition only asked for a vote on the proposition, and that the time was opportune for them to vote on it so as to retain it at Lincoln. Lilly v. Lakin, 56 Alabama, 122; Tally -v. Grider', 66 Alabama, 122; Lanier v. Padgett, 18 Florida, 843-844; McKinley v. Commissioners, 26 Florida, 264 et seq.; Zeiler v. Chapman, 53 Missouri, 405-406; State ex rel.

The facts are stated in the opitn m. The decision in Mondou v. Railroad Company, 223 U. S. 1, did not deprive this court of its jurisdiction to pass upon other material and substantial questions raised on this record, its jurisdiction having once rightfully vested. For construction of the act of April 22, 1908, 35 Stat. 65; and the act of April 5, 1910, 36 Stat. 291, see Adams v. Nor. Pac. R. R., 116 Fed. Rep. 324; Alder v. Fleming, 159 Fed.

The facts are stated in the opinion. The finding of the court that Grant received the packages and box as a warehouseman is unsupported by the evidence. The title to the books and letters called for by the. subpoena, being in Burlingame personally, the case of Wilson v. United States, 221 U. S. 361, has no application to the case at bar.

The facts are stated in the opinion! The company proved no right to the relief prayed for. It was merely a receptacle for the property, a creature erected for the convenience of the syndicate. The syndicate instead of taking the property in their own name put it in a company, which company was themselves, and only themselves, and gave it back to themselves in the shape of a certain number of shares of stock.

The facts, which involve the construction of the Act to. Regulate Commerce in regard to the provisions of the Hepburn Act for fixing rates, are stated in the opinion.

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

Held: the corn had been carried to Texarkana upon a contract for interstate shipment, and-the reshipment five days later upon a new contract was an independent intrastate shipment.” Distinguishing the case, it was said (p. 109):. “It is evident from this statement of facts that the case is quite different from the one under consideration.

The facts, which involve, the extent of immunity granted under the act of February 25, 1903, c. 755, 32 Stat. 854, 904, are stated in the opinion. The immunity statute herein pleaded in bar is a grant of amnesty from the sovereign, operating by way of a pardon from the Government. It bears no analogy, either in conditions of acquirement or in mode of operation, to the constitutional privilege of the Fifth Amendment.

<p>iVhere the plaintiffs in an action under the Employers’ Liability Act are the sole beneficiaries under the statute, a general verdict in their favor, without instructions on this point, overcomes the objection of lack of capacity to sue.</p> <p>The Employers’ Liability Act extends to Porto Rico, as held in American Railroad Company v. Birch, 224 U. S. 547, and now held that the Safety Appliance Acts also extend to Porto Rico.</p> <p>While Porto Rico has not for all purposes been fully incorporated into the United States it is not foreign territory nor are its citizens aliens. Williams v. Gonzales, 192 U. S. 1. Its organization is in most essentials that of a Territory. Kopel v. Bingham, 211 U. S. 408.</p> <p>In view of the provisions of § 3 thereof, effect cannot be given to the Employers’ Liability Act of 1908 in Porto Rico unless the Safety Appliance Acts referred to in § 3 are in force there also.</p> <p>Under the Employers’ Liability Act of 1908 pecuniary damages only are recoverable and these do not include loss of society or companionship of a son to a parent. Michigan Central Railroad v. Vreeland, ante, p. 59.</p>

<p>ERROR TO THE SUPREME COURT. OF THE STATE OF OREGON.</p> <p>The facts, which involve the jurisdiction of this court to review judgments of the state courts under § 709, Rev. Stat., and What constitutes an ex post facto law, are stated in the opinion.</p> <p>Federal questions were duly raised in the state court. Beardsley v. N. Y., L. E. & W. R. R. Co., 162 N. Y. 230; Baker v. Williams & England Banking Co., 42 Oregon, 213; Blythe v. Hinckley, 180 U. S. 333; Forbes v. Stale-Council of Virginia, 216 U. S. 396; Gelpcke v. Dubuque, 1 Wall. 175; Harding v. Illinois, 196 U. S. 78; McCorquodale v. Texas, 211 U. S. 432; Muhlker v. Harlem R. R. Co., 197 XJ. 8. 544; Waler Power Co. v. Street Railway Co., 172 IT. 8. 475; Yazoo & Miss. Rd. Co. v. Adams, 180 U. 8. 41.</p> <p>The decision of a court .may constitute an ex post facto law. Bailey v. Alabama, 219 TJ. S. 219; Pendey v. Townsend, 109 IT. 8. 665; Bors v. Preston, 111U, S. 252; Boyd . v. United States, 116- U. S. 616; Browns. Maryland, 12 Wheat. 419; Bucher v. Cheshire Rd. Co., 125 U. S. 555; Burgess v. Shimon, 07 TJV S. 381; Butz v. City of Muscatine, 8 Wall. 575; Capital Traction Co. v. Hof , 174 TJ. S. 1; C., B. & Q. R. R. v. Chicago, 166 IT. -S. 226;. Cross Lake Club v. Louisiana, 224 TJ. S. 632;. Cummings v. Missouri, 4 Wall. 277; Douglass v. County of Pike, 101 IT S. 677;. 'Dreyer v. Illinois,, 187 U. S. 71; Ferris v. Higley, 20 Wall; 375; Fitzpatrick v, Simonson Bros. Mfg. .Co., 86' Minnesota, 140; Gelp'cke.Y. Dubuque, 1 Wall. 175; Hinde v. Vattier,-5 Pet. 398; Kringy. Missouri, 107 U. S. 221; Kuhn ■v. Fairmont Coal Co., 215 U., >S. 349; Lorings v. Marsh, 6 Wall. 337;■ Louisiana v. Pilsbury, 105-U. S. 278; Muhlker y. Harlem R. R. Co., 197 U. S. 544:;.Washua Savings Bank v. Anglo-American Co., 189 U. S. 221; Nelson v. Kerr, 2 T. &.C., 299; 59 N. Y. 224; People ex rel. Steward v. Railroad Commissioners, 160 N. Y. 202; Prentis v. Atlantic Coast Line, 211 U. S. 210; Raymond v. Chicago Traction Co., 207 TL S, 20; Scott v. McNeal, 154 U. S. 34; Smith v. United States, 1 Gall. 261; Soliah v. Heskin,-222 U. S. 522; State v. Clark, 9 Oregon, 466; State v. Dyer, 67 Vermont, 690; State v. O’Neil, 147 Iowa, 513; United States v. Wong Kim Ark, 169 U. S..649; Ex parte-Virginia, 100 U. S. 339; Virginia v. Rives, 100 U. S. 313;-Westinghouse Air Brake Co. y. Kansas City So'. Ry. Co., 137 Fed. Rep. 26; Wisconsin v. Pelican Ins. Co., 127 U. S. 265; Yick Wo v. Hopkins, 118 U. S. 356.</p> <p>There is no room for the construction of a statute if there be no reasonable ambiguity. Hamilton y. Rathbone, 175 U. S. 414; Sarlls v„. United States, 152 U. S. 570; State v. Mann, 2 Oregon,.238; The Ben R., 134 Fed. Rep. 784; United States v. Brewer, 139 U. S. 278; United States v.' Chase, 135 TJ. S. 255; United States v. Goldenberff, 168 IT, S. 95; United States v. Sharp, Peters C. C. 118; United States v. Wiltberger., 5 Wheat. 76.</p> <p>The facts show the arbitrary character of. the statutory construction and the ex post facto operation of the law enforced by the court below. Bank of the Republic v. Millard, 10 Wall. 152; Baker v. Williams & England Banking Co., 42 Oregon, 213; Henry County v. Salmon, 201 Missouri, 136; Leather Manufacturers’ Bank v. Morgan, 117 U. W. 00; Lloyd v. Matthews, 155 U. S. 222; Phoenix Bank v. Risley, 111 U. S. 125; State v. Bartley, 39 Nebraska, 353; State V. Minn. & St. L. Ry. Co., 88 Iowa, 689; State v. Vermont Cent. Rd. Co., 30 Vermont, 108; State V. Wabash Ry. Co., 115 Indiana, 466; Thompson v. Riggs, 5 Wall. 663.</p> <p>Jurisdiction is an essential element of due process of law under the Fourteenth Amendment. Ex parte Bain, 121 U. S. 1; Ex parte Bergman, 130 S. W. Rep. 174; Bradley v. Union Bridge & Construction Co., 185 Fed. Rep. 544; Commonwealth v. Duane, 1 Binney, 601; Commonwealth v. Kimball, 21 Pick. 373; Dartmouth College v. Woodward, 4 Wheat. 518; Drinkall v. Spiegel, 68 Connecticut, 411; Garnsey v. State, 4 Okla. Cr. 547; Gibbons v. Ogden, 9 Wheat. 1; Hartung v. The People, 22 N. Y. 95; Matter of Hope, 7 Ñ. Y. Cr. 406; Howard v. State, 5 Indiana, 183; Hubbard v. State, 2 Tex. App. 506; Hurtado v. California, 310 U. S. 516; Keller v. State, 12 Maryland, 322; Kenyon v. State, 31 Texas Cr. 13; Montague v. State, 54 Maryland, 481; People v. Tisdale, 57 California, 104; Scott v. McNeal, 154 U. S. 34; Sheppard v.' Stale, 1 Tex. App. 522; Speckert v.- City of Louisville, 78 Kentucky, 287; State y. Allen, 14 Washington, 103; State v. Daléy, 29 Connecticut, 272; State, v. Ingersoll, 17 Wisconsin,-651; State v. Ju Nun, 53 Oregon, 1; State v. King, 12 La. Ann. 593; State v. Kingsly, 10 Montana, 537; State v. Lang-worthy, 55 Oregon, 303; State v. Mason, 108 Indiana, 48; State v. Schluer, 59 Oregon, 18; Tuton v. State, 4 Tex. App. 472; Twining v. New Jersey, 211 U. S. 78; United States y. London, 176 Fed. Rep. 976; Wall v. Htate, 18 Texas, 682; Ex parte Wilson, 114 XL S. 417.</p> <p>The Supreme Court has no jurisdiction to review the decision of a state court except upon a Federal question specially set up or claimed in the state court. Mutual Insurance Co. of New York v. McGrew, 188 U. S. 291; Michigan Sugar Co. v. Dix, 185 U. S. 112; Oxley Stave Co. v. Butler Co., 166 U. S. 648.</p> <p>The construction given to a statute or constitution of the State by the highest court of such State is regarded as part of the statute or constitution, and is as binding as the text upon the Supreme Court of the United States. Leffingwell v. Warren, 2 Black, 595; Russell v. Ely, 2 Black, 575; Oaks v. Mace, 165 U. S. 363; Stone v. Wisconsin, 94 U. S. 181; Sumner v. Hicks, 2 Black, 352; Adams v. Nashville, 95 U. S. 19; Nobles v. Georgia, 168 U. S. 398; New York, L. E. & W. R. Co. v. Pennsylvania, 158. U. S. 431; Baltimore Traction Co. v. Baltimore Belt R. Co., 151 U. S. 137; Olcott v. Fond du Lac Co., 16 Wall. 678; Missouri, K. &■ T. R. Co. v. McCann, 174 U. S. 586; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; Tullis v. Lake Erie & Western R. Co., 175 U. S. 348; Iacardi v. Alabama, 19 Wall. 635; Fairfield v. Gallatin Co., 100 U. S. 47; Morley v. Lake Shore & Michigan Southern R. Co., 146 U. S. 162; Louisiana v.' Pülsbwyj, 105 U. S. 294.</p> <p>The construction of the state court that-a statute under which a person has been convicted is prospective only will be followed in the Federal court on the question whether or not the statute is an ex post facto law. Jaehne v. New York, 128 U. S. 190; In re Jaehne, 35 Fed. Rep. 357.</p> <p>An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed. Calder v. Bull, 3 Dali. 386; Mallet v. North Carolina, 181 U. S. 590.</p> <p>The constitutional provision against ex post facto laws applies only to criminal or penal statutes. Ogden v. Sanders, 12 Wheat. 213; League v. Texas, 184 U. S. 161; Colder v. Bull, supra; Locke v. New Orleans, 4 Wall. 172.</p> <p>The constitutional provision that no State shall pass an ex post facto law refers to a legislative enactment and not to a judicial decision.</p> <p>A contract can only be impaired within the meaning of the United States Constitution so as to give this court jurisdiction on writ of error to a state court by some subsequent statute of the State which has been upheld or given effect by the state court. Bacon v. State of Texas, 163 U. S. 207; New Orleans Water Works Co. v. Louisiana Sugar Ref. Co., 125 U. S. 118; Central Land Co. v. Laidley, 159 U. S. 103, 109; Turner v. Board of Commissioners of Wilkes County, 173 U. S. 461. .</p> <p>The Federal Supreme Court will not hold a state statute void on the ground that it impairs the obligation of contracts unless it impairs the obligation of the particular contract which is involved in the controversy. Lehigh Water Co. v. Easton, 121 U. S. 388.</p>

APPEALS FROM THE COUíÍT OF CLAIMS. The facts, which involve the construction of a contract with the United States for use of a steel hardening process and the effect of the prior construction thereof by this court in a suit between the same parties, are stated in the opinion.

. COURT OF APPEALS FOR THE EIGHTH' CIRCUIT. The facts, which involve the right of one filing an application for public lands based on a soldier’s claim, to keep it open after final 'rejection for substitution of the claim of another soldier, and departmental practice in regard thereto, are stated in the opinion.

The fact's, which involve the construction of a contract for sale of real estate in Porto Rico, are stated in the opinion.

.The facts, which involve the right of separate removal by a non-resident railway company sued jointly with a resident defendant by an employé for damages for negligence, áre stated in the opinion. The question for determination in this case is whether the petition for the removal of the suit to the United States court should have been allowed. The controversy between the plaintiff below and the removing defendant was separable..

The facts are stated in the opinion. Under the issues presented, and the findings of .both lower courts that no sale had been consummated of the West Brooklyn claim to-the United Verde Copper Company by defendants prior to January 1, 1908, the plaintiff was entitled to specific performance of the contract in suit, without regard to whether it prevented such consummation . or not. Beardsley v. Beardsley, 138 U. ■ S; 261; Columbia Nat. Bk. v. Ger. Nat. Bk.

The facts, which involve the construction of the Sherman Anti-trust Act, and determining'whether the combination charged in an indictment thereunder of various manufacturers of -patented shoe machinery constituted a violation thereof, are Stated :m the opinion.

The requirements of due process of law forbid that a corporation be held amenable to service of process in a foreign jurisdiction unless engaged in business therein of such character and in such a manner and to such an extent as to bring itself within the jurisdiction so that service of process upon an agent directly representing the authority of the corporation would constitute reasonable notice to the. corporation to appear and defend.

The facts, which involve the title to an island in a navigable river and whether it remained public land after the survey, are stated in the opinion. Public grants convey nothing by implication; they are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants. Nothing passes by a public grant but that which is necessarily or expressly embraced in its terms.

<p>The writ of habeas corpus is not intended^ to serve the office of a writ of error even after verdict, and for stronger reasons is not available before trial except in rare and exceptional cases.</p> <p>The orderly course of a trial should be pursued and usual remedies exhausted even where petitioner attacks the constitutionality of the act under which he is held. Glasgow v. Moyer, 225 U. S. 420.</p> <p>Where petitipnor bases his petition on the ground that excessive bail is required, and before decision on the writ furnishes the bail, as the court can only grant the same relief that the writ was intended to afford, the appeal from the judgment denying the writ must be dismissed.</p>

The facts, which involve the constitutionality- under the commerce clause of an ordinance of Hudson County, New Jersey, fixing rates of ferriage across the Hudson river to New York City on the ferry operated by. the New York Central &' Hudson River Railroad as lessee of the West Shore Railroad Company, are stated in the opinion.

The facts, which -involve the constitutionality Tinder the Commerce. clause of the Constitution of the United States of the Arkansas Demurrage Statute, are stated in the opinion. The act is an attempt to exercise jurisdiction over interstate commerce in matters which have been the subject of action by Congress and also by the Interstate Commerce Commission.

The facts, which involve the construction of § 7 of the Organic Act of Porto Rico and whether the Government of that Island can be sued without its consent, are stated in the opinion. Although this is an action at law, as it was not tried by jury it is rightly brought here by appeal, according to the provisions of § 35 of the act of April 12, 1900, 31 Stat. 85, and § 2 of the act of April 7,1874,18 Stat. 27.

<p>One, whose rights protected by a provision of the Federal Constitution which is identical with a provision of the state constitution are invaded by state officers claiming to act under a state statute,is not ■ debarred from seeking relief in the Federal court under the Federal Constitution until after the state court has declared that the acts were authorized by the statute.</p> <p>The provisions of the Fourteenth Amendment are generic in terms • and are addressed not only to the States but to every person, whether natural or judicial, who is the repository of state power. ■</p> <p>The reach of the Fourteenth Amendment is coextensive with any exercise by a State of power in whatever form exerted.</p> <p>Under the Fourteenth Amendment the Federal judicial power can redress the wrong done by a state officer misusing the authority of the State with which he is clothed; under such circumstances inquiry whether the State has authorized the vfaong is irrelevant. Ex parte Y'oung, 209 U. S. 123, followed. Barney v. New York, 193 U. S. 430, distinguished.</p> <p>Acts done under the authority of a municipal ordinance passed in virtue of power conferred by the State are embraced by the Fourteenth Amendment.</p> <p>The power which exists to enforce the guarantees of the Fourteenth Amendment is typified by the immediate and efficient Federal right to enforce the contract clause of the Constitution as against those violating or attempting to violate its provision.</p>

<p>While there are exceptions, especially in the case of remedial statutes, the general rule is that statutes are addressed to the future and not to the past; and, in the absence of explicit words to that effect, statutes are not retroactive in their application.</p> <p>The Employers’ Liability Act of 1908 introduced a new policy and radically changed existing law and will not be construed as a remedial statute having retrospective effect.</p> <p>An action brought under the Employers’ Liability Act of 1908 by the personal representative of the person who was killed prior to the passage óf the act cannot be sustained as stating a cause of action under the law of the State, where that law gives the action to the parents.</p> <p>Damages to the estate of one killed by negligence is a distinct cause of action, under the laws of the State of Washington, from, damages to the parents of the person so killed.</p>

The facts, which involve the constitutionality under the due process and equal protection clauses of the Fourteenth Amendment of a police ordinance of the City of Valdosta, Georgia, are stated in the opinion.

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA.</p> <p>The facts, which involve the constitutionality and construction of the White Slave Act and validity of an indictment and conviction thereunder, are stated in the opinion.</p> <p>The "White Slave Act is unconstitutional, because it violates § 2, Art.. IV,.. of the- Constitution of the United States. Crandall v. State of Nevada, 6 Wall. 35; Joseph v. Randolph, 71 Alabama, 499; Paul v. • Virginia, 8 Wall. 168; 2 Tucker on the Constitution, 256, 530, paragraph D; United States v. Harris, 106 U. S. 629.</p> <p>Power to pass the White Slave Act is not granted to the Federal Congress by the commerce clause of the Constitution. See Tucker on the Constitution, p. 528.</p> <p>The "White Slave Act conflicts with the Ninth and Tenth Amendments to the Constitution and infringes on the reserved police powers of the State. City of New York v. Miln, 11 Pet. 102; Howard v. 7. C. R. Co., 207 U. S. 463; Keller v.. United States, 213 U. S. 138; Lottery Cases, 188 U. S. 22; State v. Ry. Co., 27 W. Va. 783.</p> <p>In their decisions sustaining the act, the lower Federal courts in Bennett v. United States, 194 Fed. Rep. -630; Kalen v. United States, 196 Fed. Rep. 888; United States v. Westman, 182 Fed. Rep. 1017; United States v. Warner, 188 Fed. Rep. 682, have misconstrued the commerce clause of the Constitution.</p> <p>As' to the errors assigned upon the charges given and refused by the court, see Anderson’s Law Diet. 314; 1 Abbott’s Law Diet. 348; 2 Lewis’ Suth. Stat. Const., 2d ed., § 442.</p>

The facts, which involve .the constitutionality and construction of the White Slave Act and the validity of an indictment and conviction thereunder, are stated in the opinion. The only authority that Congress could have to enact the statute in question is the commerce clause in Art. I, par. 2 of § 8 of the Constitution of the United States.

ERROI! AM) CERTIORARI,TO THE CIRCUIT COURT OF.APPEALS FOR THE SIXTH CIRCUIT. The facts, which involve the constitutionality and construction of the White Slave Act and the validity of an indictment and conviction thereunder, are- stated in the opinion."

EIGHTH CIRCUIT. The facts, which involve the title to certain portions of the right of way of the Kansas Pacific Railway How owned by the Union Pacific Railroad, are stated in the opinion.

The facts, which involve the validity of certain patents for land issued to the Northern Pacific Railroad Company and the construction of the treaty of 1855' with the Yakima Indians, are stated in the opinion.

<p>ERROR TO THE SUPREME COURT OR THE STATE OF LOUISIANA.</p> <p>■ The facts, which involve the construction of the Homestead Entry Law of the United States and the rights of an entryman and of his wife, , are stated in the opinion.</p>

<p>During the lifetime of the ancestor no heir has a vested right to inherit from him; and heirs only have such rights of inheritance as are given to them by the laws in force at their ancestor’s death.</p> <p>It is hot an interference with vested rights to prescribe the mode of procedure, or the time within which to enforce them, provided reasonable time be given therefor.</p> <p>Under the laws of Porto Rico, while Law Eleven of Toro as to effect of acts of recognition of rights of natural children may -be in force,' the provisions of §§ 133 and 137 of the Code of 1902 must be complied with in order to enforce such rights; and this applies to persons whose alleged parent died prior to the enactment of the Code.</p> <p>Decisions of the courts of Spain rendered after 1898, construing Spanish law applicable to possessions ceded to the United States, although entitled to great consideration, do not preclude the local court from reaching an independent judgment.</p>

The facts, which involve the construction of the recording act óf Arizona and what constitutes notice of lien to a purchaser of real estate, are stated in the opinion.

The facts, which involve the liability of a surety company on á bond given for faithful performance of a contract, are stated in the opinion.

The facts, which involve the constitutionality under the commerce clause of the Federal Constitution of a law of the State of Arkansas imposing a license on persons making sales within that State as applied to articles delivered from other States, are stated in the opinion.

The facts, which involve the constitutionality under the commerce clause of the Federal Constitution of a law of the 'State of Arkansas imposing a license on persons making sales within the State as applied to articles delivered from without the State, are stated in the opinion. The Arkansas statute, correctly construed, does not apply to an interstate commerce transaction such as the agreed statement of facts in this case shows.

The facts, which involve the jurisdiction of this court of appeals from orders granting or refusing discharges in bankruptcy proceedings, are stated in the opinion.

Held: does not give jurisdiction. The petition must assert grounds of recovery which involve a controversy concerning such laws. It is also asserted that this case shows not only diversity of citizenship giving jurisdiction to the Circuit ■ Court under § 23 of the Bankruptcy Act, but the bond itself gives consent that the suit may be brought in the Circuit Court, and that this is an independent ground of jurisdiction.

. The facts, which involve the construction of § 3893, Rev. Stat., and the validity of an indictment and conviction thereunder for depositing obscene matter in a post-office of the United States, are stated in the opinion.

<p>ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD' CIRCUIT.</p> <p>The facts, which involve the construction-of the Employers’" Liability Acts of 1906 and 1908 and the validity of a judgment recovered thereunder, are stated in the opinion.</p> <p>The former action brought by plaintiff in error as widow for the benefit of herself and children, which she lost in the Circuit Court of Appeals, completely bars the present action brought by her as administratrix for the benefit of herself and children.</p> <p>The Circuit Court of Appeals had the right to consider the record of the former appeal because it was not only before them, without objection, but was a part of their own records. 3 Cyc. 179; Schneider v. Hesse, 9 Ky. L. R. 1814.</p> <p>An appellate court takes notice of its own records so far as they pertain to a case under Consideration. That court, therefore, would judicially know that the judgment appealed from was affirmed upon a former appeal to which all the parties to the present appeal were parties, and such judgment is consequently a bar to the prosecution of the present appeal. Thornton v. Webb, 13 Minnesota; 498; Butler v. Eaton, 141 U. S. 240; Aspen Mining Co. v. Billings, 150 U. S. 31; Craemer v. Washington, 108 XL S. 124; Thompson v. Maxwell Land Grant Co., 168'XJ. S. 451; In re Durrani, 169 XJ. S. 39; Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 217; ‘Dimmick v. Tompkins, 194 U. S. 540.</p> <p>Plaintiff in error must have tried the former action under the Federal Employers’ Liability Act, and as the administratrix was a mere formal party, she could have been substituted at any time as- nominal 'plaintiff, by amendment. St. Louis & S. F. R. R. v. Herr, 193 Fed. Rep. 950; Van Dorpn v. Pa. R. R., 93 Fed. Rep. 260, 268; Reardon v; Balaklala Con. Copper Co., 193 Fed. Rep. 189.</p> <p>The parties were identical or in privity.</p> <p>The Pennsylvania statutes give the right to a widow to sue in her own name, for the benefit of herself and children, for the wrongful death of her husband by violence or negligence. Act of April 26, 1855, § 1, P. L. 309.</p> <p>The Federal Employers’ Liability Act of 1908 provides that the action shall be brought by the administrator for the benefit of the widow and children.</p> <p>The former action was brought by plaintiff in error, under the- Pennsylvania acts, to recover damages against the defendant by reason of its alleged negligence causing. the death of her husband, for the benefit of herself and minor children.</p> <p>In the present action she sues as. administratrix under the Federal Employers’ Liability Act of 1908, to recover damages, for the same death, from the same accident and for the benefit of the same parties, viz., herself and minor children.</p> <p>These parties are the same in both actions, and in privity with each other. Butler v. Eaton, 141 .U. S. 240:</p> <p>The cause, of action is the same arid the parties are. the same. It conclusively follows, therefore, that' the first action is res judicata of the second.</p> <p>The two actions were brought by the same parties against the same defendant, in the same court, tried before the same judge, to recover damages for the same death in the same accident.</p> <p>If the matter was adjudicated, as to part, it was adjudicated entirely. MacDonald v. Grand Trunk R. Co., 71 N. H. 448; Colurnb v. Webster Mfg. Co., 84 Fed. Fep. 259.</p> <p>To'the same effect are the following cases: Marshall v. Bryant Electric Co., 185 Fed. Hep. 499; Hein v. Westinghouse Co., 172 Fed. Rep.. 524; Forsythe v. Hammond, 166 U. S. 506; Cromwell v. Sac, 94 U. S. 351; Clare v. 'N. Y. & N. E. R. R.,. 172 Massachusetts, 211; The 'New Brunswick, 125 Fed. Rep. 567; Hubbéll v. United States, 171 U. S, 203; 23 Cyc. 1170.</p> <p>The question of the negligence of a fellow-workman was adjudicated in the prior case, because even under the Pennsylvania statute recovery is permitted, against thé common employer whose alleged negligence (in the present instance in not furnishing a .derailing switch) concurred with the negligence of a fellow-sérvant to cause harm to the plaintiff.</p> <p>The fact as to whether or not the cars were left properly on the siding was directly in issue as a defense in the former suit and was directly decided. therein so as to be res judicata.</p> <p>The Federal Employers’ Liability Act is not exclusive in the case at bar. Second Employers’ Liability Cases, 223 U. S. 1. In this case the facts are entirely different and the Pennsylvania acts are not in conflict with the Federal act.</p> <p>The mere fact that in his train are some cars destined to points without the State does not make an employé engaged in interstate commerce so as to exclude the applicability of the state acts when he was also engaged in intrastate commerce.</p> <p>Plaintiff in error was not exclusively engaged in interstate commerce but only incidentally, and his employment was far more intrastate than interstate. M., K. & T. Ry. Co. v. Haber, 169 U. S. 613; Sinnott v. Davenport, 22 IIow. 227, 243. •</p> <p>There is no repugnance or conflict between the state act and the Federal act.</p>

The facts, which involve the construction of § 250 of the Judicial Code of 1911 and the jurisdiction of this court to review judgments of the Court of ¡Appeals of the District of Columbia, are stated in the opinion.

The facts, which involve the construction of §250 of the Judicial Code of 1911 and the jurisdiction of this •court to review judgments of the Court of Appeals of the District of Columbia, are stated in the opinion.

This bill was filed for the purpose of enjoining the bringing of actions in the state courts, in the name of the State, to recover penalties declared by the Railroad Commission of the State for the violation of'a statute requiring railroads to furnish cars upon the application of shippers, and forbidding discrimination between shippers in furnishing such cars.

The facts, which involve the liability of. an express company on goods of undeclared value and also the construction of the Carmack Amendment, are stated in the opinion. * The case was tried? below on the theory of a breach of contract and must therefore be determined in this court on the same theory. Having elected to.try. the case on one theory, a litigant is restricted to the same theory on appeal. Tex. &. Pac. Ry.

The facts, which involve the constitutionality under the due process and equal protection provisions of the Fourteenth Amendment of a license ordinance of the city of Richmond, Virginia, are stated in the opinion. The ordinances and the tax imposed on the plaintiff in error were void as in violation of the due process and equal protection provisions of the Fourteenth Amendment.

' The facts, which involve the construction, of the act of April 16,1908, and the amount of pay due thereunder to an officer in the Revenue-Cutter Service, are stated in the opinion.

<p>A partnership formed to run a-hotel for which a lease is obtained held in the absence-of any stipulation as to duration to be for thp term of the lease:</p> <p>Where partnerships' are regulated by statute, as In Porto Iti.co, the ' rights of one attempting to dissolve depend upon the statute rather than on general law applicable elsewhere.</p> <p>The right- to dissolve under § 1007; Civil Code Porto Rico, is confined to partnerships the duration of which has not been fixed; under 5: 1609- a partnership for fixed duration can only be dissolved for sufficient cause shown to the court, and one attempting to dissolve before the fixed termination and to exclude the other from participation must account to the. latter for his share of the profits until the court decrees a dissolution in a Suit brought to dissolve.</p> <p>Partnership property continues to be such after as well as before dissolution. ■</p> <p>■Where one party attempts to illegally-dissolve a partnership without, suit- and subsequently the other brings a suit for dissolution in accordance, with the statute the former must account for all profits until the final decree of dissolution.</p> <p>The doctrine of election is applicable as between inconsistent remedies; but. does not- apply to a partner .wrongfully excluded from participation. He does not lose Bis right to an accounting because he first starts an action at law which he subsequent & dismisses.</p> <p>There may be a recovery at law.for damages resulting from a breach of the partnership agreement, as well as an action for' accounting in equity for the same breach, and a partner wrongfully excluded from . management and profits need not wait for the end of the period but-may show in an action at law his probable profits.</p> <p>One who wrongfully excludes the other partner from management of the. partnership affairs'is not entitled to a salary for managing them during such period of exclusion.</p> <p>This court can only review’ an improper allowance of salary to a part rier where an exception has been filed to such allowance.</p> <p>Where the ease has been tried in an irregular maimer and items are allowed in the final decree which do not appear in the auditor’s or master’s report, this court cannot attempt to correct errors assigned here and will presume that the decree so far as it stands upon questions of fact is supported by evidence not objected to.</p>

The facts, which involve the constitutionality under the contract clause of the Federal Constitution of rstatute' of Tennesséé permitting the. court- to add certain amounts to the recovery on insurance policies where refusal.to pay was not in good faith, are stated in the. opinion. The- contract involved here was entered into in 1887. In-1901, the “addéd' liability’’ act was passed.

This is a writ of error to review a judgment of. the Supreme Court-of the-State of Illinois, which áffiriñed a-judgment for the amount .of á tax assessed against the plaintiff in error for personal property in the year 1907. The contention that the assessment was in violation of Art.-I, § 8,-clause 3, of the Federal Constitution in that it was laid upon a subject of interstate commerce, was.overruled by the state court. 243 Illinois, 313.

The facts, which involve the jurisdiction of this court to review judgments of the Court of Appeals The building regulations extend to all lands within the District of Columbia. Act of June 14, 1878, 20 Stat., p: 131. The regulation is constitutional and valid.

The facts, which involve questions of priority of right between a homestead settler and a railway company selecting lieu lands under a grant, are stated in the opinion.

The facts, which involve the title to land in a townsite of the Cherokee country and the power of the Townsite Commission to settle contests, are stated in the opinion.

The facts, which involve the construction of certain provisions of the Alaska Code of 1900 and the validity of a trial and conviction for murder in Alaska, are stated in the opinion.

Held: not from the city, but from the State which, however, did not confer upon the municipality any authority to withdraw that consen i, nor was there any attempt by the council to reserve such power in the ordinance itself.

It .appeared that the Oregon Central R. R. was chartered to build a road from Portland to the California line. The company thereupon purchased a block of land in the city on which to locate its terminals. and applied to the Council to designate the street on which the track should be laid.

The facts, which involve the determination of whether a payment by a bankrupt constituted an illegal preference, are stated in the opinion. At the' time of the transfers the bankrupts were insolvent, and knew it..

<p>APPEAL FROM THE SUPREME COURT OP PORTO RICO.</p> <p>The facts, which involve the jurisdiction of this court of appeals from the Supreme Court of Porto Rico.and whether the facts found support the judgment in a suit to determine title to real estate in Porto Rico, are stated in the opinion.</p>

<p>The Fifth Amendment is not obligatory upon the States or their judicial establishments, and regulates the procedure of Federal courts only. Twining v. New Jersey, 211 U. S. 78.</p> <p>A violation of defendant’s rights under a provision in the state constitution which is identical to one in the Federal Constitution which is only obligatory on the Federal courts, does not infringe a Federal right.</p> <p>The word “testimony” more properly refers to oral evidence than to documentary, and it is reasonable that a distinction should be made between the two. .</p> <p>The prohibition in § 9 of the Bankruptcy Act of 1898 against offering testimony given by the bankrupt in accordance with the prpvisions of that section as evidence in any criminal proceeding applies only to the testimony and not to the schedules referred to therein.</p> <p>Rev. Stat., § 860, prohibiting the use of a pleading of a party or discovery of evidence by judicial proceeding against him in a criminal proceeding, while in force, was limited 1 >y its own terms to proceedings in the Federal courts and docs not apply to one in the state court.</p> <p>Evidence showing the results of an expert examination of the bankrupt’s books is not “testimony” within the meaning of § 9 of the Bankruptcy Act of 1898.</p> <p>Qucere, and not necessary to determine in this case, whether the prohibition in § 9 of the Bankruptcy Act against using testimony of the bankrupt is not limited to criminal proceedings in the Federal courts . and does not apply to such proceedings in the state courts.</p>

Held: first, that the Hepburn Act does not forbid a carrier from giving free interstate transportation tó Railway Mail Service employes when not on duty and when .traveling for their own benefit or pleasure, and, secondly, "Though the construction which we have given the Hepburn Act should not be correct, and though it was unlawful for the appellant to give, and .the deceased to receive, free transportation on his…

Held: following Mission Indians v. Walsh, 13 L. D. 269, that the Executive Order of May 1, 1886, did not confer upon white men claiming under the preemption and homestead laws any right to -settle on, file upon, or enter lands that were in .the occupation of the Indians.

The facts, which involve the validity of an express promise by the bankrupt to pay a provable debt made after the petition and before the discharge, are stated in the opinion.,

<p>ERROR TO THE COURT OF APPEALS OF THE DISTRICT Oi-COLUMBU.</p> <p>The' facts, .which involve the ‘ -ights, of the purchaser • of a ticket to a race track, and liability for his ejection therefrom, are stated in the opinion.</p> <p>A conspiracy, for the purposes of a civil action, is a combination of two or more persons by some concerted action to accomplish any purpose by unlawful means or an unlawful purpose by any means. Karges Furniture Co. v.. Amalgamated Woodworkers’ Union, 105 Indiana, 421.</p> <p>It may be a verbal agreement or undertaking, or a .scheme evidenced by the action of the parties. Franklin-Union v. People., 220 Illinois, 355.</p> <p>Any conspiracy the object of which is to wrongfully or maliciously injure another in business, trade, or reputation, is actionable. Although in criminal conspiracy the combination is the gist of the offense, in civil conspiracy damage is the gist and not the combination itself. Eddy on Combinations, §§ 253, 371, 373.</p> <p>The evidence of conspiracy is,generally, from the nature of the case, circumstantial. It is not necessary to prove that the defendants came together and actually agreed, in terms. Greenl. Ev. (Redf. Ed.), § 93; 8 Cyc. G85.</p> <p>The record here shows the defendants acted in concert in ruling off the plaintiff and also in asserting, as grounds for ruling him off, that the horse was stimulated, thereby implying that he was responsible for it, which assertion was wholly false and the defendants had no reason even to suspect it to be true. J</p> <p>In an action for conspiracy to wrongfully expel plaintiff from the society, whether the members acted fairly and in good faith in finding that a letter written by plaintiff was in violation of the constitution and laws of the order, was for the jury. St. Louis & S. W. Ry. Co. v. Thompson. 113 S.’ W. Rep. 144.</p> <p>The third and fourth assignments of error are based on the fifth exception to the action of the court in taking the case from the jury and present several questions of law.</p> <p>As to the rights acquired by the plaintiff by the purchase of his ticket, see Taylor v. Waters, 7 Taunt. 374, decided in 1817; Wood v. Leadbitter, 13 M. & W. 838; McCrm v. Marsh, 12 Gray, 211; Burton v. Sckerpf, i Allen, 133; Drew v. Peer, 93 Pa. St. 234.</p> <p>The New Yprk courts emphatically repudiate the doctrine of Wood v. Leadbitter. McGoverney V; Staples, 7 Alb. L. J. 219, holds that an action for assault and battery lies for forcible expulsion of a season ticket holder from the fair grounds of an agricultural society. And see also MucGowan v. Duff, 12 N. Y. 680; Cremore v. Huber, 18 App. Div. 231; -Smith v. Leo, 92 Hun, 242; Collision v. Hayman, 183 N. Y. 260; Wandell’s Law of the Theater, 221; Blackett’s Theatrical Law, 166; People v. King, 110 N. Y. 418, 428; Pearce v. Spalding, 12 Alo. App. 141; Dreenberg v. Western'Turf Assn., 140 California, 357.</p> <p>The. establishment of the doctrine referred to demonstrates the fallacy of the theory of revocability for which Brackett and Wandell contend. People v. King, 110 N. Y. 4 IS; Baylies v. Curry, 128 Illinois, 287; Joseph v. Bird-well, 28 La. Ann. 382; and see Article in 12 Cent. L.. J. 390.</p> <p>A license, founded upon a valuable consideration, to enter the land of another, is not revocable at the will, of the licensor. Ditch Co. v. Ditch Co., 10 Colo. App. 276; Burrow v. Terre Haute R. Co., 107 Indiana, 432; 28 A. & E. Enc. 124.</p> <p>The condition printed on the ticket, that the decision of an officer of the association shall be conclusive is inapplicable in this case, in which the decision was ex parte- and in flagrant disregard of the plaintiff's right to have an inquiry as requested by him.</p> <p>The conditions upon which the defendants could refuse to admit plaintiff are specified on the back of the ticket. The good faith of the stewards in their decision is directly impeached and put in issue in this suit and, upon all the evidence, was a question of fact for the jury. St. Louis & S. W. Ry. Co. v. Thompson, 113 S. W. Rep. 144.</p>

<p>The decree in a case is the dominant act and cannot be given a greater effect than it purports to haw ana than would be warranted by the opinion that the court finally reached.</p> <p>The fact that a court iri dismissing a libel without prejudice to a new suit expressed a decision on the merits, which it afterwards, o,n motion, excluded, does hot make-the decree as finally entered .a decision on the merits.</p> <p>While a matter is still in its breast, the court may change its opinion and do so by changing the decree.</p>

Action by the holder of a bill of lading issued by the Chicago, Rock Island and Pacific Railway for two boxes and one barrel containing “household goods” received at Lawton, in what was then the Indian Territory, a station on the line-of the railway company, for transportation to Gentry, Arkansas, a station on the line of railway of plaintiff in error. One of the boxes was never delivered, and the shipper sued to recover its value.

The facts, which involve the validity u,nder the Car-mack Amendment of .a contract for'interstate shipment of live stock and a provision therein fixing the valuation of the shipment in case of loss in consideration of a lower rate, are stated in the opinion.

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

<p>In error to the County Court of Sabine County, State of Texas.</p>