dent representative to the Secretary of


By chap. 666 of the Laws of New York for 1915, the charter [130] of the company was amended so as to require the construction of a roadway for vehicles and a pathway for pedestrians upon the draw across Black Rock harbor, the company being allowed to charge tolls not exceeding specified sums. The company failed to comply with the requirement, and the time limit had expired before this suit was brought to recover penalties imposed by the act. It is found that the construction was necessary for the public interest and convenience; that the cost of the changes is insignificant in comparison with the assets and net earnings of the company, and that it does not appear that the investment would not yield a reasonable return.

It is argued that, the Canadian act governing only the Canadian side, its adoption by New York carried the obligation no farther. But it appears to us that it would be quibbling with the rational understanding of the duty assumed to say that the company could have supposed that it had a contract or property right to confine its building of the footpath and carriageway to the Canada side of the boundary line.

The New York legislature of course confined its command to the half of the bridge within its jurisdiction. It may be presumed that, if that command is obeyed, either Canada or the company will see the propriety of carrying the way and path across to the other shore. At all events, the power of New York to insist upon its rights is not limited by speculation upon that point. As we agree with the court of appeals that this amendment to the charter was within the power reserved to the state, the objection under the contract clause of the Constitution of course must fail, and, it would seem, that under the 14th Amendment also. But, as to the latter, we may add, as the court of appeals added, that there is nothing to show that the addition to the structure will not yield a reasonable return, if that be essential, in view of the charter. Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330; Chesapeake & O. R. Co. v. Public Service Commission, 242 U. S. 603, 61 L. ed. 520, 37 Sup. Ct. Rep. 234.

The first objections to the new requirement made by the state are that it impairs the obligation of the contract in the original charter and takes the company's property without due process of law. The argument is based partly upon a reduction of the tolls from those mentioned in the charter of 1857, made by the Act of 1915. Concerning this it is enough to say that the objection is premature. The clause relating to the construction of the roadway and pathway is distinct from and independent of that which fixes the maximum rates to be charged. The latter might be invalid and the former good. If the rates are too low, they can be changed at any time. The only question now before us is whether the additions shall be built. As to that, it would be going very far in the way of limiting the reserved right to amend such charters, if it should be held that the state had not power to require what originally was contemplated in permissive words as part of the scheme. But, however that might be, the New York act authorizing consolidation subjected this consolidated corporation to the duties of the Canadian as well as of the New York charter, and the Canadian act made the arrangement for foot passengers and carriages a duty. The words that we have quoted plainly impose one. The [131] opinion in Atty. Gen. v. International of New York. Bridge Co. 6 Ont. App. Rep. 537, 543, implies that they do so by speaking of the abandonment of a portion of the work as probably an abuse of the act of Parliament, and the same is clearly stated in Canada Southern R. Co. v. International Bridge Co. L. R. 8 App. Cas. 723, 729.

The only argument that impresses us, and the one that was most pressed, is that this is an international bridge, and that Congress has assumed such control of it as to exclude any intermeddling by the state. It is said that [132] the bridge as constructed was and is devoted wholly to international commerce, and that when Congress authorized it in that form in 1874, that authority must be regarded as the charter under which it was maintained. Without repeating the considerations urged in support of this conclusion we will state the reasons that prevail with us. The part of the structure with which we are concerned is within the territorial jurisdiction of the state There was no exercise of the power of eminent domain by the United States. The state was the source of every title to that land, and, apart from the special purposes to which it might be destined, of every right to use it. Any structure upon it, considered merely as a structure, is erected by the authority of New York. The nature and

qualifications of ownership are decided by the state, and although certain supervening uses consistent with those quali'fications cannot be interfered with by the state, still the foundation of a right to use the land at all must be laid by state law. Not only the existence of the company, but its right to build upon New York land, came from New York, as was recognized by the form of the original Act of Congress of 1870, which speaks of any bridge built "in pursuance of" the New York statutes. It did not, as perhaps the New York Consolidation Act did, refer to those statutes simply as documents, and incorporate them, it referred to them as the source of the company's power.

From an early date the state has been recognized as the source of authority, in the absence of action by Congress. Willson v. Black Bird Creek Marsh Co. 2 Pet. 245, 7 L. ed. 412; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185. And this court has been slow to interpret such action as intended to exclude the source of rights from all power in the premises. In a case of navigable waters wholly within a state, over which a right of way had been conveyed to the United States, and which the United States was spending considerable [133] sums to improve, it was held that, whether or not Congress had power to authorize private persons to build in such waters without the consent of the state, an act making comprehensive regulations of work within them did not manifest a purpose to exclude the previously exist ing authority of the state over such work. Cummings v. Chicago, 188 U. S. 410, 413, 428, et seq., 47 L. ed. 525, 527, 530, 23 Sup. Ct. Rep. 472.

But it is said that a different rule applies to an international stream, and that Congress has recognized the distinction by the Act of March 3, 1899, chap. 425, § 9, 30 Stat. at L. 1151, Comp. Stat. § 9971, 9 Fed. Stat. Anno. 2d ed. p. 81. It is true that that statute makes a distinction, but the distinction is that bridges may be built across navigable waters wholly within the state, if approved by the Chief of Engineers and the Secretary of War, but, with regard to waters not wholly within the state, only after the consent of Congress has been obtained. The act does not make Congress the source of the right to build, but assumes that the right comes from another source; that is, the state. It merely subjects the right supposed to have been obtained from there to the

further condition of getting from Congress consent to action upon the grant.

No doubt, in the case of an international bridge the action of a state will be scrutinized in order to avoid any possible ground for international complaint, but the mere fact that the bridge was of that nature would not, of itself, take away the power of the state over its part of the structure if Congress were silent, any more than the fact that it was a passageway for interstate commerce, or crossed a navigable stream. When Congress has acted, we see no reason for not leaving the situation as Congress has seemed to leave it, if, on the most critical examination, we discover no intent to withdraw state control, but, on the contrary, an assumption that the control is to remain. We have adverted to the implications of the general Law of 1899, and have mentioned the statutes that deal specifically with [134] this bridge. The Act of 1874, declaring the existing bridge lawful, was a confirmation which it was natural to seek, but was not a repeal of the authority given to the company in 1870 to build subject to the approval of the Secretary of War. The superstructure has been rebuilt since 1874, and the Secretary of War twice has approved plans showing the carriage and footways. It is true that the company never has sought to execute that part of the plan, but, on the facts that we have stated, it appears to us a strange contention that it has contract or property rights not to be required to build the bridge, or that Congress by implication has forbidden the state to demand that the plan recognized by everyone from the beginning should at last be carried out.

The conveyance of a part of the land under the bridge to the United States for a public purpose not connected with the administration of the government did not affect the authority of New York over the residue within the state, and, taken in connection with the acts of the government before and after the grant, does not invalidate the Statute of 1915, even in part. See Cummings v. Chicago, 188 U. S. 410, 413, 47 L. ed. 525, 527, 23 Sup. Ct. Rep. 472; Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 Sup. Ct. Rep. 995; Omaechevarria v. Idaho, 246 U. S. 343, 346, 62 L. ed. 763, 767, 38 Sup. Ct. Rep. 323. Judgment affirmed.

The CHIEF JUSTICE, Mr. Justice McKenna, and Mr. Justice McReynolds dissent.

[135] GEORGE D. HORNING, Petitioner, especially upon his intention in the premises.



(See S. C. Reporter's ed. 135-140.)

Criminal law-intent -construction of statute.

1. The intention of the accused to keep within the law will not help him if in fact he violated such law.

[For other cases, see Criminal Law, I. d, in Digest Sup. Ct. 1908.] Pawnbrokers trict of Columbia.

doing business in Dis

2. A pawnbroker who stores his pledges in the city of Washington, and uses a Washington office as a collecting center, is doing a pawnbroking business within the District of Columbia, within the purview of the Act of February 4, 1913, forbidding the doing of business as a pawnbroker and

charging more than 6 per cent interest without a license, although care is taken to receive all applications for loans, and to make all examinations of pledges, at an office established by him in Virginia, just outside the District of Columbia. Appeal


reversible error verdict criminal case. 3. A Federal judge did not commit reversible error, in a criminal case in which the undisputed facts, as testified to by both the witnesses for the government and the

defendant, show the latter's guilt, in telling the jury in effect to find the defendant guilty, so long as the jury was allowed the technical right to decide against the law and the facts. If the defendant suffered any wrong, it was of such a purely formal character as not to afford, since the Act of February 26, 1919, a basis for reversing the judgment of the lower court.

[For other cases, see Appeal and Error, VIII. m, 6, in Digest Sup. Ct. 1908.]

[blocks in formation]

The facts are stated in the opinion. Mr. Henry E. Davis argued the cause and filed a brief for petitioner:

The question whether acts charged upon a defendant constitute an intentional but unsuccessful endeavor to avoid the operation of a law, or even to evade it, turns not only upon the acts done by the defendant, but also and

Swift v. Rounds, 19 R. I. 527, 33 L.R.A. 561, 61 Am. St. Rep. 791, 35 Atl.


The relation in law of defendant to pledges taken by him as security for loans made by him is clearly defined and accurately described in a work of accepted authority.

21 R. C. L. 651, 652, 663, 664.

What is meant by engaging in a business is clearly settled; it does not denote a single act or transaction, but the aggregation of acts or transactions pertaining to, and in fact constituting, such business; it is continuous in its character, and is synonymous with employment or occupation; signifying that which occupies the time, attention, and labor of a man for the purpose of gaining a livelihood or profit.

Hoagland v. Segur, 38 N. J. L. 237; Delaware & H. Canal Co. v. Mahlenbrock, 63 N. J. L. 281, 45 L.R.A. 538, 43 Atl. 978; Sterne v. State, 20 Ala. 46; Martin v. State, 59 Ala. 36, 3 Am. Crim. Rep. 287.

court in instructing the jury to assume, It was palpable error in the police as it did, that the suspicion or predetermination of the court below, on the mere specification of the acts, and in the absence of evidence, was conclusive of the matter, and forestalled and canceled the right and duty of the jury to determine for itself the question of defendant's good faith in the light of the evidence.

Masters v. United States, 42 App. D. C. 353, Ann. Cas. 1916A, 1243; Sparf v. United States, 156 U. S. 51, 39 L. ed. 343, 15 Sup. Ct. Rep. 273, 10 Am. Crim. Rep. 168.

Mr. Robert L. Williams argued the cause, and Messrs. F. H. Stephens and P. H. Marshall filed a brief for respondent.

[136] Mr. Justice Holmes delivered the opinion of the court:

certiorari granted to review a judgment This case comes here upon a writ of of the court of appeals that affirmed a conviction of the petitioner of doing business as a pawnbroker and charging more than 6 per cent interest, without a license, which is forbidden by the Act of Congress of February 4, 1913, chap. 26, 37 Stat. at L. 657. 48 App. D. C. 380.

The external facts are not disputed. The defendant had been in business as a pawnbroker in Washington; but, antici

pating the enactment of the present law,, a collecting center, it does not matter removed his headquarters to a place in that care is taken to complete every legal Virginia at the other end of a bridge transaction on the other side of the Poleading from the city. He continued to tomac. We cannot suppose that it was use his former building as a storehouse intended to allow benefits so similar to for his pledges, but posted notices on his those coming from business done wholly office there that no applications for loans in the city to be derived from acts done would be received or examination of there and yet go free. We are of opinion pledges made there. He did, however, that, upon the undisputed evidence, the maintain a free automobile service from defendant was guilty of a breach of the there to Virginia, and offered to intend- law, and turn at once to the question ing borrowers the choice of calling upon which seemed to warrant allowing the him in person or sending their applica- case to be brought to this court. tion and security by a dime messenger service not belonging to him, but established in his Washington building. If the loan was made, in the latter case the money and pawn ticket were brought back and handed to the borrower in Washington. When a loan was paid off, the borrower received a redemption certificate, presented it in Washington, and got back his pledge. The defendant estimated the number of persons applying to the Washington office for loans or redemption at fifty to seventy-five a day. His Washington clerk, a witness in his behalf, put it at from seventy-five to one hundred. We may take it that there was a fairly steady stream of callers, as is implied by the automobile service being maintained. It is said with reference to the charge of the judge, to which we shall advert, that there was a question [137] for the jury as to the defendant's intent. But we perceive none. There is no question that the defendant intentionally maintained his storehouse and managed his business in the way described. It may be assumed that he intended not to break the law, but only to get as near to the line as he could, which he had a right to do; but if the conduct described crossed the line, the fact that he desired to keep within it will not help him. It means only that he misconceived the law.

As to whether the conduct described did contravene the law, it is urged that a pledgee has a right to keep the pledged property where he likes and as he likes, provided he returns it in proper condition when redeemed. But that hardly helps the defendant. To keep for return, whatever latitude there may be as to place and mode, is part of the duty of a pledgee, and, in the case of one who makes a business of lending on pledges, is as much a part of his business as making the loan. As we read the statute, its prohibition is not confined to cases where the whole business is done in Washing ton. If an essential part of it is done there and a Washington office is used a

The question relates to the charge of the judge. The judge said to the jury that the only question for them to determine was whether they believed the concurrent testimony of the witnesses for the government and the defendant, describing the course of business that we have stated, and as to which there was no dispute. Those facts, [138] he correctly instructed them, constituted an engaging in business in the District of Columbia. This was excepted to and the jury retired. The next day they were recalled to court, and were told that there really was no issue of fact for them to decide; that they were not warranted in capriciously saying that the witnesses for the government and the defendant were not telling the truth; that the course of dealing constituted a breach of the law; that it was their duty to accept this exposition of the law; that, in a criminal case, the court could not peremptorily instruct them to find the defendant guilty, but that, if the law permitted, he would. The court added that a failure to bring in a verdict could only arise from a flagrant disregard of the evidence, the law, and their obligation as jurors. On an exception being taken, the judge repeated that he could not tell them in so many words to find the defendant guilty, but that what he said amounted to that; that the facts proved were in accord with the information, and that the court of appeals had said that that showed a violation of law.

This was not a case of the judge's expressing an opinion upon the evidence, as he would have had a right to do. Graham v. United States, 231 U. S. 474, 180, 58 L. ed. 319, 324, 34 Sup. Ct. Rep. 148. The facts were not in dispute, and what he did was to say so, and to lay down the law applicable to them. In such a case obviously the function of the jury, if they do their duty, is little more than formal. The judge cannot direct a verdict, it is true; and the jury has the power to bring in a verdict in the teeth

of both law and facts. But the judge
always has the right and duty to tell
them what the law is upon this or that
state of facts that may be found, and he
can do the same none the less when the
facts are agreed. If the facts are agreed,
the judge may state that fact also; and
when there is no dispute, he may say so,
although there has been no formal agree-
ment. Perhaps there was a regrettable
peremptoriness of tone, [139] but the
jury were allowed the technical right, if
it can be called so, to decide against the
law and the facts, and that is all there
was left for them after the defendant
and his witnesses took the stand. If the
defendant suffered any wrong, it was
purely formal, since, as we have said,
on the facts admitted, there was no
doubt of his guilt. Act of February 26,
1919, chap. 48, 40 Stat. at L. 1181, Comp.
Stat. § 1246, amending § 269 of the
Judicial Code; Act of March 3, 1911,
chap. 231, 36 Stat. at L. 1087.
Judgment affirmed.

Mr. Justice McReynolds dissents.

N. S. 40, 18 L. T. N. S. 152, 16 Week.
Rep. 544.

[140] The character of the charge in this case is illustrated by the following paragraph:

"In conclusion I will say that a failure to bring in a verdict in this case can arise only from a wilful and flagrant disregard of the evidence and the law as I have given it to you, and a violation of your obligation as jurors. Of course, gentlemen, I cannot tell you in so many words to find defendant guilty, but what I say amounts to that."

In my opinion, such a charge is a moral command; and, being yielded to, substitutes the will of the judge for the conviction of the jury. The law, which, in a criminal case, forbids a verdict directed "in so many words," forbids such a statement as the above.1

230. The offense here in question is punishable by imprisonment. Congress would have been powerless to provide for imposing the punishment except upon the verdict of the jury. Callan v. Wilson, 127 U. S. 540, 32 L. ed. 223, 8 Sup. Ct. Rep. 1301; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. I find nothing in the act to indicate that it sought to do so.

It is said that if the defendant suffered any wrong, it was purely formal; and that the error is of such a character as not to afford, since the Act of February 26, 1919, chap. 48, 40 Stat. at L. 1181, Comp. Stat. § 1246, a basis for reversing the judgment of the lower court. Mr. Justice Brandeis, dissenting: Whether a defendant is found guilty by It has long been the established prac- a jury, or is declared to be so by a tice of the Federal courts that, even in judge, is not, under the Federal Consticriminal cases, the presiding judge may tution, a mere formality. Blair v. Unitcomment freely on the evidence and ex-ed States, 154 C. C. A. 137, 241 Fed. 217, press his opinion whether facts alleged have been proved. Since Sparf v. United States, 156 U. S. 51, 39 L. ed. 343, 15 Sup. Ct. Rep. 273, 10 Am. Crim. Rep. 168, it is settled that, even in criminal cases, it is the duty of the jury to apply the law given them by the presiding judge to the facts which they find. But it is still the rule of the Federal courts that the jury in criminal cases renders a general verdict on the law and the facts; and that the judge is without power to direct a verdict of guilty although no fact is in dispute. United States v. Taylor, 3 McCrary, 500, 11 Fed. 470; Atchison, T. & S. F. R. Co. v. United States, 27 L.R.A. (N.S.) 756, 96 C. C. A. 646, 172 Fed. 194. What the judge is forbidden to do directly, he may not 1 Compare People v. Sheldon, 156 N. Y. do by indirection. Peterson v. United 268, 41 L.R.A. 644, 66 Am. St. Rep. 564, States, 130 C. C. A. 398, 213 Fed. 920.50 N. E. 840, 11 Am. Crim. Rep. 545; State The judge may enlighten the under- v. Bybee, 17 Kan. 462, 2 Am. Crim. Rep. standing of the jury, and thereby influence their judgment; but he may not use undue influence. He may advise; he may persuade; but he may not command or coerce. He does coerce when. without convincing the judgment, he overcomes the will by the weight of his authority. Compare Hall v. Hall, L. R. 1 Prob. & Div. 481, 482, 37 L. J. Prob.

Because the presiding judge usurped the province of the jury, I am unable to concur in the judgment of the court.

The CHIEF JUSTICE and Mr. Justice Day concur in this dissent.

449; Meadows v. State, 182 Ala. 51, 62 So. 737, Ann. Cas. 1915D, 663; Randolph v. Lampkin, 90 Ky. 551, 10 L.R.A. 87, 14 S. W. 538; McPeak v. Missouri P. R. Co. 128 Mo. 617, 30 S. W. 170, 4 Am. Neg. Cas. 806; State v. Tulip, 9 Kan. App. 454, 60 Pac. 659; Lively v. Sexton, 35 Ill. App. 417. See Starr v. United States, 153 U. S. 614, 626, 38 L. ed. 841, 845, 14 Sup. Ct. Rep. 919.

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