an important class of cases which it was intended to reach. The language of the statute affords no basis for the latter assertion, and the Reports of the Committees of Congress (Senate Report, No. 831, Sixty-first Congress, Second Session) show that it is unfounded. Those reports state that the purpose of the act was this: First, to do away with the artificial distinction by which a maritime lien was given for supplies furnished to a vessel in a port of a foreign country or state, but denied where the supplies were furnished in the home port or state. The General Smith, 4 Wheat. 438, 4 L. ed. 609. Second, to do away with the doctrine that when the owner of a vessel contracts in person for necessaries, or is present in the port when they are ordered, it is presumed that the materialmen did not intend to rely upon the credit of the vessel, and that hence, no lien arises. The St. Jago de Cuba, 9 Wheat. 409, 6 L. ed. 122. Third, to substitute a single Federal statute for the state statutes in so far as they confer liens for repairs, supplies, and other necessaries. Peyroux v. Howard, 7 Pet. 324, 8 L. ed. 700. The reports expressly declare that the bill makes "no change in the general principles of the law of maritime liens, but merely substitutes a single [12] statute for the conflicting state statutes." The act relieves the libellant of the burden of proving that credit was given to the ship when necessaries are furnished to her upon order of the owner, but it in no way lessens the materialman's burden of proving that the supplies in question were furnished to her by him upon order of the owner, or of someone acting by his authority. The maritime lien is a secret one. It may operate to the prejudice of prior mortgagees or of purchasers without notice. It is therefore stricti juris, and will not be extended by construction, analogy, or inference. Vandewater v. Mills, 19 How. 82, 89, 15 L. ed. 554, 556; The Cora P. White, 243 Fed. 246, 248.

The Coal Company relies strongly upon The Kiersage, 2 Curt. C. C. 421, Fed. Cas. No. 7,762, and Berwind-White Coal Min. Co. v. Metropolitan S. S. Co. 166 Fed. 782, 97 C. C. A. 477, 173 Fed. 471. The language of the state statutes there under consideration differs from that of the Federal act. Furthermore, the state legislation creating liens for work and materials furnished in the repair and supply,

v. Brian, 2 How. (Miss.) 874, 881; Montandon v. Deas, 14 Ala. 33, 44; Mochon v. Sullivan, 1 Mont. 470, 473.

as well as in the construction, of vessels, are largely extensions of the local mechanics' lien laws applicable to buildings.3

The Coal Company also urges upon our attention The Yankee, 147 C. C. A. 593, 233 Fed. 919, 925, 927. There the court, in sustaining a maritime lien, declared that the supplies were delivered not to the charterer, but to the vessel; holding that "a materialman may make actual delivery of supplies to a vessel in the maritime sense by causing them to be transported by rail and water carriers by interrupted stages from point of origin to the vessel side, when the transaction is begun by a valid order indicating that the supplies are for the vessel and are to be delivered to her, and is completed by an actual delivery to the vessel, [13] consistent with the instructions of the order and intentions of the parties giving and accepting it." And in respect to the coal supplied, the court there found specifically that "the quantity to be supplied to and daily consumed by the Yankee was mentioned and considered by the parties. . . In the case at bar there was no understanding when the contract made, or when the coal was delivered by the libellant, that any part of it was for any particular vessel, or even for the vessels then composing the fleet. And it was clearly understood that the purchasing corporation would apply part of the coal to a nonmaritime use. The difficulty here (unlike that presented in The Vigilancia, 58 Fed. 698; The Cimbria, 156 Fed. 378, 382; and The Curtin, 165 Fed. 271) is not in failure to show that the coal was furnished to the vessels, but in failure to prove that it was furnished by the libellant.

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It was also argued that the parties made an express agreement that the Coal Company should have a lien; that is, that they created by agreement a nonstatutory lien. The concurrent findings of fact by the lower courts, which we accept (Baker v. Schofield, 243 U. S. 114, 118, 61 L. ed. 626, 630, 37 Sup. Ct. Rep. 333; La Bourgogne (Deslions v. La Compagnie Générale Transatlantique) 210 U. S. 95, 114, 52 L. ed. 973, 983, 28 Sup. Ct. Rep. 664; The Germanic (Oceanic Steam Nav. Co. v. Aitken) 196 U. S. 589, 595, 49 L. ed. 610, 613, 25 Sup. Ct. Rep. 317), are to the contrary.


Materialmen's Liens on Vessels," 21 Harvard
L. Rev. 332, and "The New Federal Statute
Relating to Liens on Vessels," 24 Harvard

3 See "Confusion in the Law Relating to L. Rev. 182, both by Fitz-Henry Smith, Jr.


[14] STATE


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(See S. C. Reporter's ed. 14-16.)

[No. 13, Original.]

commission to


MOTION for the appointment of a the boundary line submitted October 5, 1920. Granted October 11, 1920.

Mr. H. C. Fulton for the motion.

Order announced by Mr. Chief Justice White:

This cause came on to be heard by this court, on the motions and sugges tions of counsel for the respective parties, for the appointment of a commission to run, locate, and designate the boundary line between the state of Minnesota and the state of Wisconsin, as indicated in the opinion of this court, delivered on the 8th day of March, A. D. 1920 [252 U. S. 273, 64 L. ed. 558, 40 Sup. Ct. Rep. 313], and thereupon and on consideration thereof

It is ordered, adjudged, and decreed as follows:

1. That the true boundary line between the complainant and the defendant in and through Lower St. Louis bay, Upper St. Louis bay, and the St. Louis river, from Upper St. Louis bay to the "falls" in the said river, is as hereinafter specified.

2. That said boundary line must be ascertained upon a consideration of the situation existing in 1846, and accurately described by the Meade chart, more specifically hereinafter referred


4. A commission, consisting of Samuel S. Gannett, of Washington, District of Columbia, William B. Patton, of Duluth, Minnesota, and John G. D. Mack, of Madison, Wisconsin, competent persons, is here and now appointed by the court to run, locate, and designate the boundary line between said states along

that portion of said bay and river heretofore described in this decree, and to locate said boundary line by proper monuments, courses, and distances, as fixed by the court in this decree.


5. Before entering upon the discharge of their duties each of said commissionto perform ers shall be duly sworn faithfully, impartially, and prejudice or bias, the duties herein imposed, said oaths to be taken before the clerk of this court, or before the clerk of any district court of the United States, or before an officer authorized by law to administer an oath in the state of Minnesota or the state of Wisconsin, and returned with their report. Said commissioner is authorized and empowered to make examination of the territory in question, and to adopt all ordinary and legitimate methods of survey in the designation of the true location of said boundary line fixed by the decree, to examine and consider carefully the opinion of this court delivered on March 8, 1920, the said Minnesota's Exhibit 1, being the Meade chart, or a certified copy thereof; and said commission shall do all other matters necessary to enable it to discharge its duties and to obtain the end to be accomplished conformably to this de



[16] 6. It is further ordered that should any vacancy or vacancies occur in said board of commissioners by rea3. That said boundary line runs from son of death, refusal to act, or inability a point midway between Rice's point to perform the duties required by this and Connor's point, through the middle decree, the Chief Justice of this court is of Lower St. Louis bay to and with the thereby authorized and empowered to deep channel leading to Upper St. Louis appoint another commissioner or bay, and to a point therein immediately missioners to supply such vacancy or south of the southern extremity of vacancies, the Chief Justice acting upGrassy point, thence westward along on such information in the premises as the most direct [15] course through may be satisfactory to him. 7. It is further ordered that said water not less than 8 feet deep eastcommissioners proceed with all ward of Fishermen's island, as indicated by the red trace A-B-C on Minne-venient despatch to discharge their dusota's Exhibit No. 1 (said Exhibit 1 beties conformably to this decree. ing the Meade chart offered and received in evidence in this suit, and now a part of the record), approximately 1 mile to the deep channel, and immediately west of the bar therein, thence with such channel north and west of Big island up stream to the "falls."


8. It is further ordered that the

clerk of this court shall forward at once to the governor of each of said states of Minnesota and Wisconsin, and to each of the commissioners hereby appointed, a copy of this decree and of


the opinion of this court, delivered in a suit against a telegraph company to herein March 8, 1920, duly authenti-recover for mental suffering due to a mistake in the transmission of a telegram to cated. show the motive, if material, of the telegraph company in transmitting the message between two points in the same state over a route passing through another state. [For other cases, see Evidence, 11. e, 5, in Digest Sup. Ct. 1908.] Telegraphs mission.

9. Said commissioners shall make a report of their proceedings under this decree as soon as practicable on or before the 1st day of May, 1921, and shall return with their report an itemized statement of services performed and expenses incurred by them in the performance of their duties.

10. All other matters are reserved until the coming in of said report, or until such time as matters pertaining to this cause shall be properly presented to this court for its consideration.




(See S. C. Reporter's ed. 17-19.)

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mental anguish


Damages telegram. 1. The transmission of a telegram between two points in the same state over a route passing out of the state was none the less interstate, so as to prevent the application of the rule of the local law permitting a suit to recover damages for mental anguish because of a mistake in delivery, although it would have been physically possible to send the message over a route lying wholly within the state, the course adopted being more convenient and less expensive for the telegraph company. [For other cases, see Damages, VI. q; Com. merce, I. b. in Digest Sup. Ct. 1908.] Evidence-burden of proof


2. The burden rests upon the plaintiff

Note. As to routing of telegramsee note to Western U. Teleg. Co. v. Alford, 50 L.R.A. (N.S.) 94.

As to damages against telegraph company for error in sending message, or for not delivering the same-see note to Primrose v. Western U. Teleg. Co. 38 L. ed. U. S. 883.

As to recovery of damages for mental anguish in telegraph cases-see note to Western U. Teleg. Co. v. Chouteau, 49 L.R.A. (N.S.) 206.

On transportation or transmission between points in the same state over a route part of which is in another state, as interstate commerce-see notes to Missouri, K. & T. R. Co. v. Leibengood, 28 L.R.A.(N.S.) 985; Bateman v. Western U. Teleg. Co. L.R.A.1918A, 805; Campbell v. Chicago, M. & St. P. R. Co. 17 L.R.A. 443; and Hanley v Kansas City S. R. Co. 47 L. ed. U. S. 333.

messages-mode of trans

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Argued October 12, 1920. Decided October 25, 1920.

ON WRIT of Certiorari to the Supreme

Court of the State of North Carolina to review a judgment which, reversing a judgment of the Superior Court for Halifax County, in that state, directed the entry of a judgment for plaintiff in a suit against a telegraph company to recover damages for mental anguish due to a mistake in the transmission of a telegram. Reversed.

See same case below, 178 N. C. 146, 100 S. E. 351.

The facts are stated in the opinion.

Mr. Rush Taggart argued the cause, Walter E. Daniel, Charles W. Tillett, and and, with Messrs. Francis R. Stark, Thomas C. Guthrie, filed a brief for petitioner:

The question raised in this case has already been foreclosed in this court in favor of the petitioner.

Western U. Teleg. Co. v. Texas, 105 U. S. 460, 26 L. ed. 1067; Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214; Western U. Teleg. Co. v. Boegli, 251 U. S. 315, 64 L. ed. 281, 40 Sup. Ct. Rep. 167; Kirmeyer v. Kansas, 236 U. S. 568, 59 L. ed. 721, 35 Sup. Ct. Rep. 419.

However, if we should disregard all of these decisions of this court, and ask this court to consider the question in the case at bar de novo, the conclusion in favor of the petitioner's contention is equally irresistible.

Western U. Teleg. Co. v. Mahone, 120 Va. 422, 91 S. E. 157; Western U. Teleg. Co. v. Lee, 174 Ky. 210, 192 S. W. 70,

Ann. Cas. 1918C, 1026, 15 N. C. C. A. 1; Berg v. Western U. Teleg. Co. 110 S. C. 169, 96 S. E. 248; Davis v. Western U. Teleg. Co. 198 Mo. App. 692, 202 S. W. 292; Western U. Teleg. Co. v. Bowles, 124 Va. 730, 98 S. E. 645; Taylor v. Western U. Teleg. Co. 199 Mo. App. 624, 204 S. W. 818; Kirmeyer v. Kansas, 236 U. S. 568, 59 L. ed. 721, 35 Sup. Ct. Rep. 419; Western U. Teleg. Co. v. Kaufman, Okla. 162 Pac. 708; Klippel v. Western U. Teleg. Co. 106 Kan. 6, 186 Pac. 993; Western U. Teleg. Co. v. Bushnell, Ind. App. 128

N. E. 49.

Where a Federal right is brought in question, and it is contended that this Federal right is supported by the undisputed evidence in the case, it then becomes the duty of the court to examine into the evidence.

Creswill v. Grand Lodge, K. P. 225 U. S. 246, 56 L. ed. 1074, 32 Sup. Ct. Rep. 822; North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914E, 159, 9 N. C. C. A. 109; Kinzell v. Chicago, M. & St. P. R. Co. 250 U. S. 130, 63 L. ed. 893, 39 Sup. Ct. Rep. 412; Philadelphia, B. & W. R. Co. v. Smith, 250 U. S. 101, 63 L. ed. 869, 39 Sup. Ct. Rep. 396.

No brief was filed for respondent.

Mr. Justice Holmes delivered the opin

ion of the court:

that the message was sent out of North Carolina into Virginia for the purpose of fraudulently evading liability under the law of North Carolina, and gave the plaintiff a verdict. The presiding judge then set the verdict aside "as a matter of law," and ordered a nonsuit. But, on appeal, the supreme court of the state set aside the nonsuit, and directed that a judgment be entered on the verdict.

We are of opinion that the judge presiding at the trial was right, and that the supreme court was wrong. Even if there had been any duty on the part of the Telegraph Company to confine the transmission to North Carolina, it did not do so. The transmission of a message through two states is interstate commerce as a matter of fact. Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214. The fact must be tested by the actual transaction. Kirmeyer v. Kansas, 236 U. S. 568, 572, 59 L. ed. 721, 724, 35 Sup. Ct. Rep. 419.

As the line was arranged and had been arranged for many years, ever since Roanoke Rapids had been an independent office, Richmond was the relay point from [19] Greenville to the latter place. The message went through Weldon, North Carolina, and was telegraphed back back from Richmond, Weldon business also was. It would have


been possible, physically, to send direct from Weldon, but would have required a rearrangement of the wires and more operators. The course adopted was more convenient and less expensive for the company, and there was nothing to show motives except the facts. As things were,



The court below did not rely primarily message was sent in the quickest way. upon the finding of the jury as to the that when, as here, the termini were in of the arrangement, but held the same state, the business was intrastate unless it was necessary to cross the territory of another state in order to reach the final point. This, as we have said, is not the law. It did, however, lay down that the burden was on the "was not done to evade the jurisdiction company to show that what was done

This is a suit brought in a state court by the respondent against the petitioner, the Telegraph Company, to recover [18] for mental suffering caused by a mistake in delivering a telegraphic message. The message handed to the defendant was, "Father died this morning. Funeral tomorrow, 10:10 A. M.," and was dated January 24. As delivered to the plaintiff on January 24, it was dated January 23, and thus caused her to fail to attend the funeral, which otherwise she would have done. The message was from Greenville, North Carolina, to Rosemary, in the same state, and was transmitted from Greenville through Richmond, Virginia, and Norfolk, to Roanoke Rapids, the delivery point for Rosemary. This seems to have been the route ordinarily terial, as to which we express no opinused by the company for years, and the company defends on the ground that the ion, this again is a mistake. The burden message was sent in interstate comwas on the plaintiff to make out her merce, and that therefore a suit could case. Moreover, the motive would not not be maintained for mental suffering have made the business intrastate. alone. Southern Exp. Co. v. Byers, 240 the mode of transmission adopted had U. S. 612, 60 L. ed. 825, L.R.A.1917A, 197, been unreasonable as against the plain36 Sup. Ct. Rep. 410. The jury found tiff, a different question would arise; but

of the state." If the motive were ma


court of appeals local statute.

in that case the liability, if it existed, | Appeal from District of Columbia would not be a liability for an intrastate constitutionality of transaction that never took place, but for the unwarranted conduct and the resulting loss.

Judgment reversed.

of the District of Columbia in a case in 2. A judgment of the court of appeals which the constitutional power of Congress to enact a local statute is drawn in question is reviewable in the Federal Supreme

Mr. Justice Pitney concurs in the re- Court on writ of error or appeal under the sult.

[20] JOHN C. HEALD, George E. Hamilton, and Wilton J. Lambert, Committee of the Person and Estate of Eugene Peters, Petitioners,



(See S. C. Reporter's ed. 20-–23.)

Cases certified

lumbia courts

from District of Coother remedy.

1. The court of appeals of the District of Columbia is without power to certify questions to the Federal Supreme Court in a case in which the judgment or decree of such court of appeals would be reviewable by the Federal Supreme Court on writ of error or appeal.

[For other cases, see Cases Certified, I. in Digest Sup. Ct. 1908.]

Note.-On cases certified in the Federal courts-see note to Webster v. Cooper, 13 L. ed. U. S. 325.

On sending up case to Federal Supreme Court by certificate-see note to Baltimore & O. R. Co. v. Interstate Commerce Commission, 54 L. ed. U. S. 164.

On appellate jurisdiction of Federal Supreme Court over District of Columbia courts-see note to United States ex rel. Taylor v. Taft, 51 L. ed. U. S. 269. Construction of re-enacted statute.

The rule seems to be well settled that the re-enactment in the same or substantially the same terms, of a statute which has received a judicial construction, amounts to a legislative adoption of such construction. United States v. Falk, 204 U. S. 142, 51 L. ed. 411, 27 Sup. Ct. Rep. 191; Copper Queen Consol. Min. Co. v. Territorial Bd. of Equalization, 206 U. S. 474, 51 L. ed. 1143, 27 Sup. Ct. Rep. 695; Bruce v. Tobin, 245 U. S. 18, 62 L. ed. 123, 38 Sup. Ct. Rep. 7; The Devonshire, 13 Fed. 39; Stevirmac Oil & Gas Co. v. Smith, 259 Fed. 650; United States v. Southern P. Co. 230 Fed. 270; Lincoln v. United States, 49 Ct. Cl. 300; Hope v. State, 5 Ala. App. 123, 59 So. 326; Jones v. State, 10 Ala. App. 152, 65 So. 411; Goldberg & Lewis v. Stone, 10 Ala. App. 485, 65 So. 454; Duramus v. Harrison, 26 Ala.

Judicial Code, § 250, which in express terms confers power on the latter court to review judgments of the District of Columbia court "in cases involving the construction or application of the Constitution of the United States, or the constitutionality of any law

of the United States."

[For other cases, see Appeal and Error, III. c, 5, in Digest Sup. Ct. 1918 Supp.] Statutes



- re-enact

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Argued October 18, 1920. Decided November 8, 1920.

326; Anthony v. State, 29 Ala. 27; Bank of Mobile v. Meagher, 33 Ala. 622; O'Byrnes v. State, 51 Ala. 25; Ex parte Matthews, 52 Ala. 51; Woolsey v. Cade, 54 Ala. 378, 25 Am. Rep. 711; Huddleston v. Askey, 56 Ala. 218; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; White v. The State, 134 Ala. 197, 32 So. 320; Bruce v. Sierra, 175 Ala. 517, 57 So. 709, Ann. Cas. 1914D, 125; Reynolds v. Lee, 180 Ala. 76, 60 So. 101; Mobile County v. Williams, 180 Ala. 639, 61 So. 963; Ex parte Pepper, 185 Ala. 284, 64 So. 112; Brown v. GayPadgett Hardware Co. 186 Ala. 561, 65 So. 333; Donahoo Horse & Mule Co. v. Durick, 193 Ala. 456, 69 So. 545; Harrington v. State, 200 Ala. 480, 76 So. 422; Moragne v. State, 201 Ala. 388, 78 So. 450; Compton v. Marengo County Bank, 203 Ala. 129, 82 So. 159; Dawsey v. Kirven, 203 Ala. 446, 7 A.L.R. 1658, 83 So. 338; McKenzie v. State, 11 Ark. 594; State Commission in Lunacy v. Welch, 154 Cal. 775, 99 Pac. 181; Lightner Min. Co. v. Lane, 161 Cal. 689, 120 Pac. 771, Ann. Cas. 1913C, 1093; Lindsay-Strathmore Irrig. Dist. v. Superior Ct. Cal. 187 Pac. 1056; Western Lumber & Pole Co. v. Golden, 22 Colo. App. 209, 124 Pac. 584; Harvey v. Travelers' Ins. Co. 18 Colo. 354, 32 Pac. 935; Hoxie v. New York, N. H. & H. R. Co. 82 Conn. 352, 73 Atl. 754, 17 Ann. Cas. 324; Wilmington City R. Co. v.

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