Volume 228 — United States Reports

THE CIRCUIT COURT OF THE UNITED STATES FOR THE ■ DISTRICT OF KANSAS. The facts, which involve the constitutionality of the Kansas Bank Depositors’ Guaranty Act, are stated in the opinion., The Kansas Bank Depositors’ Guaranty Act discriminates against national banks as instrumentalities of the public service, and destroys their business success and efficiency. Farmers’ Natl.

The facts, which involve the construction of the act of Congress allotting Cherokee, lands in severalty and the power of the Secretary of the Interior thereunder to determine contests and to reconsider his decisions thereon, aré stated in the opinion. The execution by the principal chief of the Cherokee Nation of the patent in favor of Knight, under the circumstances of this case, rendered the issuance of an allotment certificate unnecessary.

The facts, which involve the construction of § 5392, Rev. Stat., and the validity of an indictment thereunder for perjury, are stated in the opinion. Sworn testimony from a homestead claimant himself as to residence and cultivation is authorized by‘law within the meaning- of Rev. Stat., § 5392, so that perjury may be predicated on the falsity of the testimony. The indictment is based on a regulation of the General Land Office.

The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913), was a United States Supreme Court case in which the court held that federal question jurisdiction is based on the affirmative pleadings of the plaintiff and their choices of what law to use, not on the federal defenses that the plaintiff anticipates the defendant might use or that the defendant actually uses.

The facts, which involve the right of a claimant who has accepted a dividend under .-a composition to recover against the bankrupt after the discharge on the ground of deceit prior to the bankruptcy, are stated-in the opinion. Talcott has had his day in court on the issue as to whether or not his claim is barred by the discharge of the bankrupts, and they ought not to be twice vexed with the same controversy.

The facts, which involve the right under the laws of the United States to purchase coal lands belonging to the United States, and the jurisdiction of the courts over the officers of the Land Department prior to issuing of the patent, are stated in the opinion. The rights of the appellants, as well as the duty of the appellees, are to be found in § 2347, Rev. Stat., fixing twenty dollars per acre. That statute is not ambiguous. Its language admits of but one interpretation.

The facts, which involve the construction of provisions in the Indian Appropriation Act of 1884 relative . to sale of cattle purchased by the Government for the Indians, are stated in the opinion. The transaction is within the letter of the act; that is, the cattle were really “purchased by the Government.” The cattle were purchased by the Secretary of the Interior pursuant to specific authority from Congress.

The State of Nebraska enacted a law requiring railroads conveying livestock to convey the same at a rate of speed so that the time consumed im a journey from the initial point of receiving the stock to the point of feeding or destination should not exceed one hour for each eighteen miles travel, including the time of stops at stations or other points.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.</p> <p>The facts, which involve the constitutionality of the Nebraska freight speed law, .are stated in the opinion.</p>

Held: therefore, that such act did not constitute restraint within the meaning of the Anti-trust Act. The right of a carrier to select its connections must be admitted (we state the right as absolute, without regard to the Interstate Commerce Act, for our present purposes), and if there were nothing else- in the case the conclusion of, the District Court , would have to be affirmed.

<p>A declaration in a deed of trust which clearly shows that the' sole object of the instrument is to provide for certain specifically named children of the grantor who has other children, so dominates the instrument that the word “ children ” when thereafter used will be construed as referring to those particular children and.not to include any other children of the grantor.</p> <p>While the word “ heirs ” if. used as a term of purchase in a will may signify whoever may be such at the, testator’s death, the word “•children ” as used in the deed involved in this ease should be construed as including only those persons answering the description at the time of execution. ></p> <p>Surviving children of the grantor in such an instrument held to include children of one of the children specifically mentioned who had died prior to the grantor.</p>

The facts, which involve the constitutionality of the Wisconsin syrup law and the construction of the Federal Pure Food and Drug law, are stated in the opinion.

The facts, which involve the jurisdiction of this court of direct appeals under § 5 of the Circuit Court of Appeals Act of 1891, are stated in the opinion. As to the jurisdiction of this court on direct appeal: The jurisdiction of the court was in issue in the Circuit Court, so that the appeal was properly taken directly to this court.

WASHINGTON. The facts, which involve the constitutionality under the Fourteenth Amendment of a statute of Washington in regard to damages for changing grade of streets, are stated in the opinion.

<p>APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.</p> <p>The facts are stated in the opinion.</p>

The facts, which involve the jurisdiction of the Circuit Court of Appeals to review facts in certain cases coining from the.Bankruptcy Court arid the construction of usury laws of New York, are stated in the opinion. The Circuit Court of Appeals having found that the court below had not committed any errors of law, should have affirmed the final order of the District Court.

<p>error to the court of civil appeals for the third ^ SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.</p> <p>The facts, which involve the construction of the provisions of the Employers’ Liability Act of 1908 defining who are entitled to compensation for damages thereunder, are stated in the opinion.</p>

The facts, which involve the liability of a contractor fon personal injuries caused by negligence in operating an elevator, are stated in the opinion. It was error in the trial court to decide, as matter of law, under the evidence, that the elevator, boy was the servant of the Fuller Company. Standard Oil Co. v. Anderson, 212 U. S. 215; Byrne v. Kansas City R. R. Co., 61 Fed. Rep. 609; Powell v. Construction Co., 88 Tennessee, 692; The Elton, 142 Fed.

The facts, which involve the rights of the trustee in bankruptcy and others in a crop of rice grown by the bankrupt and the jurisdiction of the state and Federal courts of the controversies arising thereover, are stated in the opinion.

By the act of May 12,1864,13 Stat. 72, c. 84, Congress made a land grant to .the State of Iowa to aid in the construction of a railroad from Sioux City to the Minnesota line — a distance of about 80 miles. ' It was provided that the road should be completed within ten years, but that as each ten miles was completed, a patent for one hundred, sections should be issued by the Secretary of the Interior to the State, for the benefit of the company building the road.

<p>ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.</p> <p>John H. A. Wilson, of Washington County, District of Columbia, by his will, probated March 20, 1858, after providing for the payment of his debts, devised all of his property, real and personal, to his wife, Adelaide Wilson, during her life of widowhood for the support of herself and his five minor children. In case of her death or marriage the property was bequeathed to the testator’s brother, Thomas O. Wilson, in trust for the use of the children.</p> <p>“And I ‘ authorize and empower my said brother to exercise his own judgment and prudence in the discharge of the duties hereby confided to him, — and it is my wish and desire that my executrix and executor hereinafter named shall and may at any time they shall deem best and to the advantage of my said wife and children, sell and convey any part or all of my real and personal estate, and invest the proceeds in good stocks or otherwise, as they may consider, best, for the benefit of my said wife and children; in fact, to exercise a sound discretion in the management, disposition and investment of my said estate for the purpose aforesaid, to-wit, for my wife and children.”</p> <p>There was a provision requiring the executrix and executor to care for his servants; . ... “lastly, I do hereby constitute and appoint my dear wife, Adelaide Wilson executrix and tíiy affectionate brother Thomas O. Wilson executor of this my last will and testament.”</p> <p>The will was probated March 20, 1858. Thomas O. Wilson, one of the executors, died September 21, 1858. On March 8,1865, Adelaide Wilson made a deed, in which, after referring to the will and its probate and the authority conferred upon herself and her deceased brother-in-law as executrix and executor to sell for the benefit of the wife and children of the testator, she by virtue of the authority vested in her by said will, sold the land to Leonard Huyck, his heirs and assigns forever.</p> <p>After eight mesne conveyances, duly recorded, the property, in February, 1905, was sold to the defendant, Chester A. Snow, he and his predecessors in title having held continuous possession of the property since 1865. Adelaide Wilson died March 28, 1906, and on October 23, 1906, the children brought this action of ejectment against Snow. He claimed under the deed of the executrix, but was not able to prove that she had ever qualified as such. A witness who was familiar with the records in the Register of Wills’ Office, testified that he had found therein the will of John H. A. Wilson, with an endorsement that it had been approved by the Register of Wills and an entry in a book that the will had been approved and filed, but that he found no other entries or papers to indicate that either Adelaide Wilson or Thomas O. Wilson had ever qualified as executors or received letters testamentary; that the bond book for December 30, 1856, to April 20, 1861, was missing and that in that book the bond of the executors would have been recorded if one had been given; that the books containing the returns of executors from 1856 to 1861 are missing; that he is unable to say whether the qualification of executors would be shown by the bond book alone or not; that he finds no docket entry relating to the case. Another witness who had frequent occasion to examine the records of the Probate Office between 1857 and 1860 testified that during that period the Probate Office was conducted in a negligent manner; that the witness during that period, in searching for original papers which had not been recorded, found them in a mass of. others piled together in an empty fireplace in the building.</p> <p>There was a verdict for the defendant. A motion for a new trial was overruled. . The case was taken to the Court of Appeals, error being assigned on the refusal to charge that the burden was on the defendant to prove that the executrix had qualified; that there was no evidence that she had qualified; that the recitals in the deed were not evidence against the plaintiffs, and on the further ground that the court erred in refusing to direct a verdict for the plaintiffs. The judgment of the Supreme Court of the District was affirmed by the Court of Appeals of the District of Columbia and the case brought here by writ of error.</p>

The facts, which involve the validity of a conviction and sentence for murder in the Philippine Islands, are stated in the opinion. The Supreme Court of the Philippines erred in convicting the accused of the crime of murder since the complaint is so formed that it will not support a sentence for murder under the Spanish law. See article 403, Penal Code, Philippine Islands. , As to what “killing a person with alevosía” means, see par. 2, art. 10, Penal Code.

COLUMBIA. The facts, which involve the liability of a medical specialist for injuries caused by burns resulting from an X-ray operation performed by him on the patient of another physician, are stated in the opinion. Expert testimony was not essential in order to prpve negligence, as in cases against physicians , and surgeons. Vaughan v. Menlove, 3 Bing. N. C. 468, 475; Oceanic Steam Nav. Co. v. Aitken, 196 U. S. 589, 596.

Held: in Pollard’s Lessee v. Hagan, 3 How. 212 , that the State had the same rights, sovereignty,. and jurisdiction over the navigable waters as the original States, and could exercise all the powers of government which belong to and may be exercised by them, excepting with respect to control over public lands owned by the United States; and that the title of the navigable waters, and the; soil beneath them, was in the…

The facts, which involve the jurisdiction of this court under § 709, Rev. Stat., to review a decree of the state court denying a second petition for removal of the cause from the Federal court, are stated in the opinion.

CIRCUIT. ' ' The facts, which involve the construction of the provisions of the Corporation Tax Act as. to what constitutes doing business by a corporation so as to subject it to the tax, are stated in the opinion. The Minehill Company was “engaged in business” and was therefore subject to the Federal corporation tax. The Corporation Tax Law is intended to tax the privilege of doing business with the advantages of corporate organization.

The facts, which involve the construction of the provisions of § 250 of the Judicial Code regulating appeals to this court from judgments and decrees of the Court of Appeals of the District of Columbia, are stated in the opinion.

<p>ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.</p> <p>The facts, which involve the validity of a verdict against a railway company for damages for causing death of an employé, are stated in the the opinion.</p>

Certain facts essential to the presentation of- the questions of law upon which the judgment must turn will be preliminarily stated. The Consolidated Turnpike Company, a corporation of the State of Virginia, acquired and united two or more toll roads, extending from Norfolk to Ocean View, dn the seashore.

The facts, which involve conflicting claims to the estate of a Chinese merchant domiciled in the Philippine Islands and of the validity of his marriage, are stated in the opinion.

The facts, which involve the construction of the Circuit Court of Appeals Act as to disqualification of judges to sit on the trial of cases and as to what judgments are reviewable by the Circuit Court of Appeals, are stated in the opinion.

' The facts, which involve the degree of full faith and credit to be given by the courts of one State to a decree of the probate court of another State, .are stated in the opinion.

The facts, which involve the liability of a common carrier for injuries sustained by a passenger, are stated in the opinion. By the evidence in the case there is no negligence of the defendant -shown that was the proximate cause of the injury. Even if the steps of the car were wet and .slippery, that would be the direct result of the rain and- not on account of any negligence of the defendant.

Held: under the circumstances of this case, not to constitute a waiver of full and timely payment. The Federal courts cannot follow state statutes or practice in opposition to a provision of the Federal Constitution.

<p>Where this court finds nothing giving rise to a clear conviction that error has resulted from the action of the court below it should not reverse the judgment. Chicago Junction By. Co. v. King, 222 U. S. 215.</p> <p>The contention of plaintiff in error that the court below construed.a statute adversely to his interest in certain respects will not avail if it appears that as a matter of fact he was accorded the benefit he claimed under such statute in those respects, and the rights of the other party were made dependent on other questions involved.</p> <p>Where the record shows that there was evidence that the cars on which the accident occurred and which were being transferred by a switching-engine were loaded with merchandise destined for a port to be there transshipped to destination in another State, and the court instructs the jury that the plaintiff can only recover under the Employers’ Liability Act of 1908 in case it finds that he was engaged in interstate commerce,' this court will not, in the absence of clear conviction of error, disturb the judgment based on the verdict.</p>

The facts, which involve the liability of bay rum, imported from Porto Rico subsequent to the Foraker Act, to a tax equal to the internal revenue tax under §§ 3248 and 3254, Rev. Stat., on distilled spirits, are stated in the opinion. The act of February 4, 1909, taxing bay rum imported from Porto Rico, was a declaration by Congress that it was not subject to a tax under prior statutes. This act is in pari materia with § 3 of the Foraker Act and should be construed with it.

Suit in. the Court of Claims under the Tucker Act, so-called, to recover the sum of $15,791.92. The petition was dismissed upon demurrer. The facts, as alleged, are these: Appellant is the owner of tracts of land, each containing 160 acres, in the Parish of Ascension, State of Louisiana, which have been in his possession and ownership since, respectively, the tenth of October, 1898, fourteenth of September, 1901, and the twelfth of December, 1902.

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

The facts, which involve the construction of § 70a of the Bankruptcy Act and the ownership of policies of insurance on the life of a bankrupt, are stated in the opinion. The policies were assets of the bankrupt estate. They constituted property which the bankrupts, could have transferred. Matter of Slingluff, 105 Fed. Rep. 502. And this irrespective of their value. Re Brown, 196 Fed. Rep. 758.

The facts, which involve the construction of § 70a of the Bankruptcy Act and the ownership of policies of insurance on. the' life of a bankrupt, are stated. in the opinion. Life insurance policies having no surrender value at petition filed are property, and pass to a bankrupt’s trustee. Sec. 70a, subd. 5, Bankruptcy Act; In re Coleman, 136 Fed.

The facts, which involve the construction of § 70a of the Bankruptcy Act and the ownership of policies of insurance on the life óf a bankrupt, are stated in the opinion.

The Circuit Court of Appeals for the Ninth Circuit affirmed a decree subjecting the property of the Northern Pacific Railway Company to the payment of a judgment for $71,278 which Joseph H. Boyd had revived against the Coeur D’Alene Railway and Navigation Company. The record on this appeal is very lengthy and the transactions so overlap that any chronological statement would necessarily be confusing.

<p>Striking, from the record, for non-compliance with the rules of court, the bill of exceptions, after the case has been heard on its merits, is not a refusal to take jurisdiction or a refusal after taking jurisdiction to exercise it; if the action is erroneous it.is but an error committed in the exercise of judicial discretion, reviewable by writ of error and not by mandamus.</p> <p>Mandamus in this case to compel the Court of Appeals of the District of Columbia to reinstate a bill of exceptions which on motion it had stricken out for failure to comply with its rules, refused.</p>

' The facts, which involve the jurisdiction of this court directly to review the judgment of the Circuit. Court, are stated in the opinion.

TEXAS. The facts, which involve the construction of the joint resolution of March 14, 1912, 37 Stat. 630, relative to shipment of arms and munitions of war to other American countries during times of domestic violence therein and what constitutes an exportation under such resolution, aré stated in the opinion.

<p>Decided on authority of preceding case.</p>

Held: the court speaking through Mr. Justice Brown, to be clear that the debt of Burke was embraced within the provisions of paragraph a, as one “founded upon an open account, or upon contract, express or implied,” and might have been proven had he chosen to waive the tort and take his place with other creditors of the estate. The discharge in bankruptcy was held on other provisions of the act to be a defense.

The facts, which involve the power of the Philippine Government to deport aliens, are stated in the opinion. The Court of First Instance, at Manila had jurisdiction. The contention that the act was an act of the State or performed by the defendant Forbes in his executive capacity as Governor General did not oust the Court of First Instance of jurisdiction.

<p>ERROR TO THE APPELLATE COURT, FIRST DISTRICT, STATE OF ILLINOIS.</p> <p>The facts which involve the constitutionality of the statute of Indiana abolishing as to railroad companies the fellow-servant defense, are stated in the opinion.</p>

The. facts, which involve the jurisdiction of the Circuit. Court of actions brought on contractors’ bonds únder the act of August 13, 1894, and the construction of the act amendatory thereof of February 24, 1905, are stated in. the opinion.' The act of, February 24, 1905, governs the remedy of the plaintiff for having furnished material for the construction of a public work.

Adams v. Milwaukee, 228 U.S. 572 (1913), was a United States Supreme Court case in which the Court held that the local ordinance ordering the confiscation of tainted milk was constitutional.

The facts, .which involve the power of Congress to deport aliens and the construction of the acts of Congress relating to deportation of alien prostitutes, are stated in the opinion. This act deprives the “prisoner” of her liberty “without” due process of law and is contrary to the Fifth Amendment.

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

. The facts, which involve the constitutionality of the Carmack Amendment when applied to interstate ship-, ments on through routes where the connecting carriers are designated by the shipper, are stated in the opinion.

The facts, which involve the jurisdiction of this court, to review judgments of the state courts where the Federal question is so devoid of merit as to be frivolous, are stated in the opinion.

• The facts, which involve the right of a homesteader'to alienate the land he seeks to enter before .he has finally perfectedvcthe entry, are stated in the opinion.

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

The facts, which involve the construction of the Land Grant Adjustment Acts and the liability of the Southern Pacific Railroad Company thereunder for interest on amounts received by it for land erroneously patented to it, and the date from which such interest should be computed, are stated in the opinion.

The facts, which involve the power of the Trustee in Bankruptcy to use the funds of the estate on behaif of the general creditors to properly administer it and toconservé their rights, and the proportions in which the Trustee and creditors specially secured by a special fund shall share in such fund, are stated in the opinion.

The facts, which involve the construction of § 120 of the Judicial Code prohibiting the judge passing on the cause in the first instance from sitting in the Circuit Court of Appeals, and the procedure of this court in regard to a case here on petition for certiorari in which such a condition exists, are stated in the opinion.

<p>It is only in exceptional cases that this court will interfere by habeas ■ corpus with the course, or final administration, of the criminal justice of the States by their respective courts, Urquharl v. Brown, 205 TJ. S. 179, and this rule applies as well after, as before, sentence.</p> <p>Justice is satisfied by the opportunity given to defendants accused of and tried for crime in the state courts to set up their Federal rights in those courts, and the course of criminal justice will not be deranged and possibly defeated by permitting the defenses based on such rights to be 'faised for the first time by habeas corpus in the Federal courts after sentence in the state court.</p> <p>The writ of habeas corpus is not to be used as a writ of error.</p> <p>Where, as in Pennsylvania, the judgment of the trial court in criminal cases is subject to modification, as well as affirmance or reversal, by the appellate court, and a sentence partly legal and partly illegal under the state law can be modified by striking therefrom the illegal part, such sentence is erroneous and not void; this court will not, therefore, on habeas corpus pass upon the question of legality of the part of the sentence complained of. The proper procedure is to review the judgment on appeal. Ex parte Lange, 18 Wall. 163, distinguished.</p> <p>It is not the duty of this court to anticipate the decision of the state court as to the effect of one state statute upon an earlier one, or to declare which of two rules supported by conflicting decisions the state court will apply.</p>

The facts, which involve the right of the State to tax coal brought from another State while it is awaiting shipment to ports in other States and countries, are stated in 'the dpinion.

Held: following its former decisions on the same subject, that the plaintiff’s cause of action was barred by laches and res judicata, the judgment rests on non-Federal grounds sufficient to sustain it.. This court will not review the judgment of the highest state court in accepting its former decisions as determining the law of the State and give a different interpretation of that law.

The facts, which involve the constitutionality, under the equal protection clause of the Fourteenth Amendment, of provisions of an Illinois statute in regard to the protection of hoists and elevators in buildings under construction, are stated in the opinion. Section 7 of the act violates the equal protection clause of the Fourteenth Amendment because the classification it seeks to make is according to minute rather than general distinctions.

Held: in this ease, to be a fellow-servant of the driver of the conveyance.

<p>Whether or not the copartnership is an entity distinct from the members, partnership debts are debts of the members of the firm.</p> <p>The individual liability of partners for debts of the firm is primary and direct; it is not collateral like that of a surety.</p> <p>The business of a bankruptcy act is so far as may be to preserve, not to upset, existing relations based on fundamental rules of law.</p> <p>The Bankruptcy Act recognizes the firm as an entity for certain purposes, but does not alter the preexisting rule that the partnership can be in bankruptcy and the partners not.</p> <p>In this case an order directing that the separate estate of a member of a firm which had been adjudicated bankrupt be turned over to the trustee for administration is affirmed.</p>

The facts, which involve the construction of the Employers’ Liability Act of 1908 and the extent to which it superseded state statutes, are stated in the opinion.

<p>This court rarely disturbs local decisions of the territorial courts on question of local practice.</p> <p>The Supreme Court of the Territory, having held that under § 10 of ' Act 44 of 1899 of Arizona transferring cases from the District Court of one county to the corresponding court of another county newly organized, the former court retained ] urisdiction until the conditions of the transfer were fulfilled, this court follows that decision.</p>

<p>ON PETITION FOB, BEHEAEING.</p> <p>The facts are stated in the opinion.</p>