Volume 229 — United States Reports

Bauer & Cie. v. O'Donnell, 229 U.S. 1 (1913), was a 1913 United States Supreme Court decision involving whether a purchaser of a patented product bearing a price-fixing notice incurs guilt of patent infringement by reselling the product at a price lower than that which the notice commands. A divided Court (5–4) held that it was not. Bauer & Cie, a German company, was the assignee of U.S. Patent No. 601,995, covering Sanatogen, a water-soluble drug product (patent medicine), advertised as the "King of Tonics" and a strength-giving "concentrated scientific food." Bauer sold the patented product in the United States through its exclusive sales agent, Hehmeyer, under a license agreement. Sanatogen was sold with this notice on each bag: Notice to the Retailer.

The facts, which involve the right of a customer of a bankrupt brokerage firm to shares of stock purchased for him by the bankrupt and fully paid for by the claimant prior to the petition, notwithstanding the certificates in possession of the bankrupt are not the identical ones purchased, are stated in the opinion. .

The facts, which involve the constitutionality under the Fourteenth Amendment of the statute of Indiana prescribing the width of entries in bituminous coal mines, are stated in the opinion. The act of March 9, 1907, is in conflict with § 1 of the Fourteenth Amendment. It denies the equal protection of the law to the person or persons engaged in the mining of coal in certain districts of the State.

Held: that as Congress did not in the act of March 3,1887, as amended August 13, 1888, make any provision for service by publication,- the act will not be- construed as giving jurisdiction to Federal courls-to grant attachments in cases where the defendant cannot be served.

Held: among other things, that the franchises had expired and ordered the Railway to accept the terms of the resolution and comply with its provisions or to vacate the streets.

This is a petition by appellants, partners under the style of Henry W. Peabody & Company, for a balance alleged to be due on account of coal furnished the Quartermaster’s Department, Philippine Division of the Army.

Held: however, that the island had value in other ways, being those mentioned above.

The facts, which involve the rights of private owners to land under navigable waters within a State used for cultivation of oysters, and whether such parties are entitled to compensation from the Government of the United States for the destruction of the oyster beds therein by'reason of improvement of the channel for navigation pursuant to act of Congress, are stated in the opinion.

Held: but the gifts are to the children. The only function of the trustee is to lock the fund up and keep the legatees from any participation therein until the youngest reaches the age of 25. The law is that a trust -such as it was attempted to establish in this case is void, or if not void, voidable. For the English rule see Saunders v. Vautier, 4 Beav. Rep. 115; Wharton v. Masterman, App.

The facts, which involve the-construction of the Removal Act and what constitutes a separable controversy as to a non-resident defendant sued jointly with a resident defendant, are stated in the opiniQn. The petition for the removal of the suit to the United States court should have been allowed, as the controversy was separable. The'State of Kansas prohibited the joinder of the several causes of action. 3 Am. and Eng. Anno. Cases, pp. 283, 285; Atchison, T. & S. F. Ry.

The facts, which involve the liability of a railroad for personal injuries sustained by one of its employés while both were engaged, in interstate commerce, and tljue construction of the provisions of the Employers’ Liability Act of 1908 in regard to contributory negligence, are stated in' the opinion.

The facts, which involve various elements of a controversy between the City of Denver, Colorado, the Denver Union Water Company and the New York Trust Company, trustee of bonds of the said company, and the construction and validity of the contracts and ordinances and statutes relating to the water supply of Denver,' are stated in the opinion.

Held: that a railroad employé carrying bolts to be used in repairing an interstate railroad and who was injured by an interstate train is entitled to sue under the Employers’ Liability Act of 1908. A Federal court is without authority to reverse a judgment in favor of one party and direct a judgment in favor of the other non obstante veredicto. Slocum v. New York Life Ins. Co., 228 U. S. 364 . 197 Fed. Rep. 537 , reversed.

• The facts, which involve the construction of the Employers’ Liability Act of 1908, and its effect on actions for personal injuries of employés brought in the state courts, are stated in the opinion.

In 1909 complaint was made to the postal authorities that W. W. Degge and the Wellington corporations, of which he was president, were using the mails in furtherance of a fraudulent scheme. Notice was given'to Degge and the corporations and a hearing was had before the officer to whom, under the Postal Regulations, the disposition of this class of cases was committed.

The facts, which involve the validity of the removal of this cause from the state to the Federal court and the jurisdiction of the latter thereover, are stated in the opinion.

The facts, which involve the validity of a verdict and judgment against a. railroad company for personal injuries sustained by one of its employes, are stated in the opinion.

Held: however, that this mortgage, while- oldest in date and while good against Mayes, was inferior to the attachment and the other mortgages because of the failure of. Keys and Co. to re-record it at Yinita and transfer it to the index at Pryor Creek in pursuance of acts of May 27,1902, 32 Stat. 276 , c. 888, and 'February 19, 1903, 32 Stat. 842 , c. 707, successively creating recording offices at those two places.

The facts, which involve the construction of the Reclamation Act of 1902 and whether the purchaser was required thereunder to pay the annual charges for maintaining the irrigation -project by which his lands are irrigated, aré stated in the opinion.

The facts, which involve the jurisdiction of this court to review judgments of the state court under § 709, Rev., Stat., and Judicial Code, §.237, and whether a Federal question exists and was properly and specially set up in the state court, are stated in the opinion.

Held: respectively, at the time of their retirement.

The facts are stated in the opinion. The holder of papers deposited with a bank in escrow can redeliver the paper deposited by one of the parties, to him, after the other party to the escrow agreement is in default in the performance oi everything he was bound to perform, — without the consent of such other party in .default, or order of court. 16 Cyc. 576, 584; 11 Am. & Eng.

The facts, which involve the construction of the various acts relating to the introduction of intoxicating liquor into Indian country in Oklahoma, are stated in the opinion.

The facts, which involve the construction of provisions of § 36 of the McKinley Tariff Law in regard to the manufacture of opium, are stated in the opinion.

Held: in a criminal trial on an ijidictment' charging the same party with violating the penal provisions of the said act, to be res judicata and decisive of the question.

The facts, which involve'the right of a trustee in bankruptcy to convey real estate in a jurisdiction other than that in which he was appointed, are stated in the opinión.

Held: and erred in holding, that there was enough in the evidence to warrant a finding that the locomotive engineer was- negligent, so as to' make the carrier liable under the Employers’ Liability Act; or held; erroneously, that there was enough to show a causal relation between the working overtime of McWhirter and the disaster, so as to create a liability under the Hours of Service Act. "It still does not seem to me…

Held: that: Those provisions are intended simply to supplement existing legislation relative to second class mail matter, and not as ap exertion of legislative power to regulate the press, curtail its freedom or to deprive one not complying therewith of all right to use the mail service.

The facts, which involve the construction'of the Safety Appliance Acts and determination of what constitutes contributory negligence on the part of a switchman in a railway yard, are stated in opinion.

<p>APPEAL FROM THE CIRCUIT COURT .OF. THE UNITED STATES FOR THE WESTERN DISTRICT ■ OF 'MICHIGAN.</p> <p>The facts, which involve the constitutionality under the Fourteenth Amendment of a statute - of Michigan taxing telephone companies and excepting therefrom certain classes thereof, are stated in the opinion. •</p> <p>An exemption of companies whose gross receipts do not exceed $500 per annum invalidates the act.</p> <p>Judicial construction' cannot enlarge or restrict the obvious meaning of the act.- Atty. Gen’l. v. Assessors, 143 Michigan, 73; Bate Refrigerator Co. v. Sulzberger, 157 U. S. 37; Denn v. Reed, 10 Pet. 527; Gibbons v. Ogden, 9 Wheat. 1; Leoni v. Taylor, 20 Michigan, 148, 154; People v. Plumstead, 2 Michigan, 465; Ry. Co. v. Phelps, 137 U. S. 528; Swartz v. Siegel, 117 Fed. Rep. 18; Whipple v. Saginaw Judge, 26 Michigan, 342; Wilt v. Cutler, 38 Michigan, 189.</p> <p>A law must operate equally and uniformly and the classification must be based upon some reasonable, ground. Am. Sugar Co. v. Louisiana, 179 U. S. 89, 92; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Cotting v. Stockyards Co., 183 U. S. 79, 112; Field v. Asphalt Co., 194 U. S. 618, 621; Kentucky R. R. Tax Cases, 115 U. S. 321, 337; McLean v. Arkansas, 211 U. S. 539; Railway Co. v. Ellis, 165 U. S. 150, 160; St. Louis Cons. Coal Co. v. Illinois, 185 U. S. 203; S. W. Oil Co. v. Texas, 217 U. S. 114; State v. Haun, 61 Kansas, 146.</p> <p>While the legislature has the right to make exemptions, as held in Supervisors v. Auditor Gen’l, 65 Michigan, 408; Loan Co. v. Detroit, 136 Michigan, 451; People v. Auditor Gen’l, 7 Michigan, 84, the power is not absolute and without limitation. 1 Cooley Taxation (3d ed.), 382; Cotting v. Stockyards Co., 183 U. S. 79; Gulf &c. Ry. v. Ellis, 165 U. S. 150; Railroad Co. v. Pennsylvania, 134 U. S. 237; Yick Wo v. Hopkins, 118 U. S. 369.</p> <p>The exemption does not operate to segregate any definite class of telephone companies to the exclusion of all others.</p> <p>The value of non-assessed properties is substantial.</p> <p>The object of the act is not expressed in the title and is in conflict with the Michigan constitution. Atty. Gen’l v. Bolger, 128 Michigan, 355; Bresler v. Delray Investment Co., 156 Michigan, 3; Callaghan v. Chipman, 59 Michigan, 614; Cooley’s Const. Lim. 143; Depot Co. v. Com’nr of Railroads, 118 Michigan, 340; Detroit v. Wayne Circuit Judge, 112 Michigan, 319; Fish v. Stockdale, 111 Michigan, 646; In re Hauck, 70 Michigan, 396; Pratt Food Co. v. Bird, 148 Michigan, 634; Wilcox v. Paddock, 65 Michigan, 24.</p>

The facts, which involve determining whether a shipment intended for export tó a foreign country, but shipped to the exporting seaport on local bills of lading, was interstate .or intrastate commerce and whether it was subject to Federal or state jurisdiction, are stated in the opinion.

The case is here on a question of jurisdiction. The appellants filed a bill in equity in the Circuit Court for the Eighth Circuit, District of Colorado, against the City and County of Denver and the other appellees, who constitute the Public Utilities Commission, to restrain them from paying out any moneys authorized by the provisions of. an amendment to the charter of the city, and likewise to restrain them and each of them from issuing or attempting to issue $8,000,000 of…

<p>ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.</p> <p>The facts, which involve the jurisdiction of this court to review a judgment of the state court which rests upon non-Federal as well as Federal grounds, are stated in the opinion.</p>

The facts, which involve the validity of an award in a proceeding for condemnation of land for the wáter supply system of New York City, are stated in the opinion.

' The facts, which involve the validity of a verdict and sentence for alleged • violations of the Sherman AntiTrust Act, are stated in the opinion.

The facts, which involve the question of whether a joint stock association is amenable to the anti-discrimination provisions of the Act, to Regulate Commerce, are stated in the opinion.

Held: in a suit by the bank against the broker that: Where one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. Stock certificates are a peculiar kind of property; although, strictly speaking, not negotiable paper, they are frequently the basis of commercial transaction and bought and sold in open market as negotiable securities are.

This case originated in a complaint made by the municipal corporation of Milwaukie, in- the State of Oregon, before the Railroad Commission of -that State, seeking, an order restraining the Portland Railway, Light & Power Company, the plaintiff in error, operating a syátem of street railways in the City of Portland, Oregon, and certain suburban roads in connection therewith, from practicing certain alleged discriminations in rates of fare, and fixing reasonable fares between…

<p>ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.</p> <p>The facts are stated in the opinion.</p>

The appellant, William Stewart MacLeod, surviving partner of MacLeod & Company, brought suit in the Court of Claims to recover from the United States the amount of. certain duties paid by the firm under protest upon a cargo of rice imported into the Island of Cebu at the city and port of the same name, in the Philippine Islands, on January 29, 1899. The Court of Claims decided in favor of the United States and rendered judgment dismissing the petition.' 45' Ct. Cls. 339.

<p>APPEAL FROM THE CIRCUIT COURT OF ’APPEALS FOR THE SEVENTH CIRCUIT.</p> <p>The facts, which involve the construction of' certain provisions of the Bankruptcy Act of 1898, relating to preferential payments are stated in the opinion.</p> <p>As to preferences. The transfer of the bankrupt’s “ open trades” to Anderson was a transfer of property for the benefit of the bank. Nat. Bank of Newport v. Nat. Herkimer Bank, 225 U. S. 178; Bank Act, ch. 1, § 1.</p> <p>A preferential transfer includes every mode of disposing of property for the benefit of a creditor, and circuity of arrangement will not avail to save it. Nat. Bank v. Nat. Herkimer Co. Bank, supra; Western Tie Co. v. Brown, 196 U. S. 502; Hackney v. Hargraves, 99 N. W. Rep. 675.</p> <p>The endorsement and delivery of the margin certificate to the bank was a transfer^of the amounts of.the margin securities held by the bank as a'Board of Trade depository, to the bank as a creditor, and was a payment. Traders' Nat. Bank v. Campbell, 14 Wall. 87; Ridge Ave. Bank v. Studheim, 145 Fed. Rep. 798; Lowell v. Trust Co., 158 Fed. Rep. 781; Irish v. Citizens’ Trust Co., 163 Fed. Rep. 880.</p> <p>The deposit of more than enough to pay the specified checks under the special deposit arrangement was a preferential transfer. N. Y. County Bank v. Massey, 192 U. S. 138; Western Tie Co. v. Brown, 196 U. S. 502.</p> <p>As to the right of set-off. There was no right of set-off as to the margin securities, because the same were deposited, as security, with the bank in its capacity as a Board of Trade depository, and not according to the custom of banks. They were special or specific deposits, and not general deposits, and created a trust relation and not a relation of debtor and creditor. Bolles on Banking, § 3; Morse on-Banking, § 185; Woodhouse v. Crandall, 197 Illinois, 104; Montague v. Pacific Bank, 81 Fed. Rep. 602; Moreland v. Brown, 86 Fed. Rep. 257; Peck v. Ellicott, 30 Kansas, 156, 1 Pac. Rep. 499; People v. Bank, 96 N. Y. 92; Anderson v. Pacific Bank, 112 California, 598; Libby v. Hopkins, 104 U. S. 303; Collins v. State, 33 Florida, 439.</p> <p>A bank has no lien or right of set-off against special deposits or money deposited for a specific purpose, as for collateral security or for the payment' of a particular debt. 3 Am. & Eng. Ency., 2d Ed., 822, 837; 5 Cyc. 552; Morse on Banking, § 325; Reynes v. Dumont, 130 U. S. 390; Wagner v. Citizens’ Trust Co., 122 S. W. Rep. 245; Smith v. Sanborn State Bank, 126 N. W. Rep. 779; Dolph v. Cross, 133 N. W. Rep. 667; In re Davis, 119 Fed. Rep. 950; Germania Sav. Bk. v. Loeb, 188 Fed. Rep. 285; Western Tie Co. v. Brown, 196 U. S. 502; Scott v. Armstrong, 146 U. S. 499; Gray v. Rollo, 18 Wall. 632; Munger v. Albany City Bank, 85 N. Y. 589; Rawleigh v. Rawleigh, 35 Illinois, 512.</p> <p>There was no right of set-off as to the $575.79, because it was not treated by the parties as a general deposit, but was made “under special circumstances” amounting to a special deposit. N. Y. County Bank v. Massey, 192 U. S. 138; Western Tie Co. v. Brown, 196 U. S. 502; Germania Sav. Bank v. Loeb, 188 Fed. Rep. 285.</p> <p>The bank and bankrupt were in collusion to turn all the bankrupt’s available assets over for the benefit of the bank. The alleged right of set-off was acquired with a view to such use. Western Tie Co. v. Brown, 196 U. S. 502; National Security Bank v. Butler, 129 U. S. 223; Yardly v. Philler, 167 U. S. 344, 359.</p>

Charlton v. Kelly, 229 U.S. 447 (1913), is a case pertaining to extradition of a U.S. citizen to Italy. In 1910, Porter Charlton confessed in New York to having murdered his wife in Italy. The Italian vice consul requested Charlton's extradition. Hon. John A. Blair, one of the judges of the Circuit Court of the United States for the district of New Jersey, suspended Charlton's petition for a writ of habeas corpus and a warrant was issued for his arrest. This order for extradition was approved by Secretary of State Philander C. Knox.

The facts, which involve determining whether a decree of the Circuit Court of the United States is final and whether an appeal will lie therefrom to this court, are stated in the opinion.

Held: is plain, adequate and complete in the sense of the guiding rule before named, unless there be special circumstances showing the contrary. Dows v. Chicago, 11 Wall. 108 , 112; State Railroad Tax Cases, 92 U. S. 575 , 613-614; Shelton v. Platt, 139 U. S. 591 , 597; Allen v. Pullman’s Palace Car Co., Id. 658, 661 ; Indiana Manufacturing Co. v. Koehne, 188 U. S. 681 , 686.

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.</p> <p>The facts, which involve the title to a large tract of land in New Mexico, are stated in the opinion.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.</p> <p>The facts, which involve the liability of governmental agencies for payment of interest, are stated in the opinion.</p>

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>The facts, which involve the construction and interpretation of the various treaties, agreements and statutes relating to the Mille Lac Reservation, are stated in the opinion.</p>

Held: on the authority of Ingram v. Wilson, 125 Fed. Rep. 913 , that the Bankruptcy Court could determine that the property was exempt but had no jurisdiction to compel its payment. In view of that ruling Hall made a further application to have the $122 set off to him as exempt. An order to that effect, was passed by the Referee.

The facts, which involve, the right of a bank to cancél payments made on a bankrupt’s check on the ground of constructive knowledge of the bankruptcy on the part of the payee, are stated in the opinion. The Nashville Bank, at the time when it made the book entries and mailed the letter of'-advice,' was in total ignorance of the bankrupt’s insolvency, suspension and bankruptcy.

The facts, which involve the right of a bank to accept in good faith payments from an insolvent, are stated'in the opinion.

The facts, which involve the title, legal and equitable, to certain real estate in the City of Washington, District of Columbia, are stated in the opinion.

The facts, which involve the construction of contracts-relating to, and rights of co-adventurers in, a real estate enterprise in the District of Columbia, are stated in the opinion.

Held: the “due process of law” clause does not require the State to adopt the institution and procedure of a grand jury, we are unable to see upon what theory it can be held that an examination, or the opportunity for one, prior to the formal accusation by the district attorney, is obligatory upon the States. The matter is so clearly settled by our previous decisions that further discussion is unnecessary.

The facts, which involve questions of liability of sureties on a bond and what constitutes a variation of contract sufficient to release them, are stated in the opinion.

The facts, which involve the liability of sureties' on an official bond and the responsibility of a public officer for moneys other than public, are stated in the opinion.

Petition of The Journal of Commerce and Commercial Bulletin for restraining order.

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

<p>In error to the District Court of the Parish of Caddo, State of Louisiana.</p>

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

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

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

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

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

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

<p>Appeals from the Circuit Court of the United States for the Eastern District of Louisiana.</p>

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

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

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

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

<p>Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit.</p>