4. Deprivation of property —Exercise of police power by State.
Uncompensated obedience to a regulation enacted for the public safety
under the police power of the State is not taking property without due
compensation, and the constitutional prohibition against the taking
of private property without compensation "is not intended as a limita-
tion of the exercise of those police powers which are necessary to the
tranquillity of every well-ordered community, nor of that general power
over private property which is necessary for the orderly existence of
all governments. Chicago, B. & Q. Ry. Co. v. Drainage Commis-
sioners, 561.

See BRIDGES;

PRACTICE AND PROCEDURE, 2;
PUBLIC LANDS, 5.

5. Due process of law-Committal for contempt in refusing to appear before
legislative committee on ground of want of jurisdiction.

The objection of a person committed for contempt, for refusing to appear
before a legislative committee, that the subject which it had been
appointed to investigate was not within the jurisdiction of the legis-
lature, under a provision in the state constitution, that neither the
legislative, executive nor judicial departments should exercise powers
belonging to either of the others, does not present any question under
the due process clause of the Fourteenth Amendment. Carfer v.
Caldwell, 293.

6. Due process of law-Discharge of juror by court in murder case.

In discharging a juror in a murder trial before he was sworn, for cause
sufficient to the court, and after questioning him in absence of accused
and counsel but with the consent of his counsel, and substituting
another juror equally competent, held, that the accused was not denied
due process of law within the meaning of the Fourteenth Amendment.
Howard v. Kentucky, 164.

7. Due process of law-Impeachment of acts of municipal corporations because
of illegality under laws of State.
The acts of a municipal corporation are not wanting in the due process of
law ordained by the Fourteenth Amendment, if such acts when done
or ratified by the State would not be inconsistent with that Amend-
ment. Many acts done by an agency of a State may be illegal in their
character, when tested by the laws of the State, and may, on that
ground, be assailed, and yet they cannot, for that reason alone, be
impeached as being inconsistent with the due process of law enjoined
upon the States.
Waterworks Company v. Owensboro, 38.

8. Due process of law-Application of Fourteenth Amendment to acts of
States and their instrumentalities.

The Fourteenth Amendment was not intended to bring within Federal con-
trol everything done by the States or by its instrumentalities that is
simply illegal under the state laws, but only such acts by the States

or their instrumentalities as are violative of rights secured by the
Constitution of the United States. Ib.

See CONSTITUTIONAL LAW, 12;

JURY.

9. Equal protection of laws-Effect of action of appellate court on decision
of trial court not subject to exception.

The Criminal Code of Kentucky, § 281, provides that decisions of the trial
court upon challenges shall not be subject to exception, and as the
highest court of the State in deciding that even though the action of
the trial court in regard to the juror had been error it could not reverse
under § 281, followed the construction of that section established by
prior cases, it did not make a discriminating application of the section
against the accused and he was not therefore deprived of the equal
protection of the laws. Howard v. Kentucky, 164.

10. Full faith and credit to judgment rendered against and paid by garnishee.
Harris v. Balk, 198 U. S. 215, followed to the effect that full faith and
credit must be given to a judgment rendered against, and paid by,
defendant as plaintiff's garnishee in a State, other than that in which
plaintiff resides, and in which defendant does business and is liable
to process and suit. Louisville & Nashville Railroad v. Deer, 176.
Jury Trial-See JURY.

11. States; application of Fifth and Sixth Amendments to proceedings in

state courts.

The provisions of the Fifth and Sixth Amendments to the Federal Con-
stitution do not apply to proceedings in the state courts. Howard v.
Kentucky, 164.

12. States; provision as to due process of law in relation to.

While the words "due process of law," as used in the Fourteenth Amend-
ment, protect fundamental rights, the Amendment was not intended
to interfere with the power of the State to protect the lives, liberty
and property of its citizens, nor with the power of adjudication of its
courts in administering the process provided by the law of the State. Ib.
13. States-Effect of erroneous decision of highest court as violation of con-
stitutional obligation.

A State cannot be deemed guilty of violating its obligations under the
Constitution of the United States because of a decision, even if erro-
neous, of its highest court, if acting within its jurisdiction. Ib.

14. States; power to regulate and burden right to inherit.
The California inheritance tax law of 1893, as amended in 1899, which
imposed a tax on inheritances of and bequests to brothers and sisters,
and not on those of daughters-in-law or sons-in-law, was assailed as
repugnant to the Fourteenth Amendment, and having been sustained
by the highest court of the States a writ of error from this court was

prosecuted. After the record was filed a new inheritance tax law
was enacted in 1905, which amended and reënacted prior laws on the
subject and also repealed the acts of 1893 and 1899 without any clause
saving the right of the State in respect to charges already accrued
thereunder. Plaintiff in error contended that as this court had juris-
diction on the constitutional question, it should reverse the judgment,
on the ground that since the repeal of the acts of 1893 and 1899 the
State has no power to enforce any taxes levied thereunder. Held,
that the Fourteenth Amendment does not deprive a State of the power
to regulate and burden the right to inherit, but at the most can only
be held to restrain such an exercise of power as would exclude the con-
ception of judgment and discretion and would be so obviously arbitrary
and unreasonable as to be beyond the pale of governmental authority;
and the statutes of California, therefore, are not unconstitutional be-
cause near relatives by affinity are preferred to collateral relatives.
Campbell v. California, 87.

15. Suit against State within meaning of Eleventh Amendment.
A suit to compel county officers to levy and collect a tax on property
within the county to pay bonds of a municipality is not, under the
circumstances of this case, a suit against the State, either because
those officers are also state officers, or because the bonds were issued
under legislative authority. Graham v. Folsom, 248.

16. Suit against State within meaning of Eleventh Amendment.

A suit against state officers to enjoin them from enforcing a tax alleged
to be in violation of the Constitution of the United States is not a
suit against a State within the prohibition of the Eleventh Amend-
ment. Gunter v. Atlantic Coast Line, 273.

17. Suit against State; waiver of immunity to suit in Federal court.
While a State may not, without its consent, be sued in a Circuit Court
of the United States, such immunity may be waived; and if it vol-
untarily becomes a party to a cause and submits its rights for judicial
determination it will be bound thereby. Ib.

18. Suit against State-Appearance constituting waiver of immunity.
An appearance "for and on behalf of the State" by the Attorney General,
pursuant to statutory provisions, in an action brought against county
officers, but affecting state revenues, in this case amounted to a waiver
by the State of its immunity from suit; and such immunity could not
be invoked in an ancillary suit subsequently brought against the
successors of the original defendants to enforce the decree. Ib.

19. Suit against State-Binding effect on State of decree of Federal court in
cause in which State has appeared.

A decree of the Circuit Court of the United States, having jurisdiction of
the cause and in which the State appeared, that a charter exemption
existed in favor of a railroad company by virtue of a contract within
the meaning of the impairment of obligation clause of the Federal

Constitution is binding upon the State as to the existence and effect
of the contract during the period of exemption, and the rule that a
decree enjoining the collection of a tax is not res judicata as to the
right to collect for a subsequent year does not apply. Ib.

20. Suit against State-Enforcement by Federal court of decree in cause over
which it had jurisdiction.

Neither the Eleventh Amendment nor § 720, Rev. Stat., control a court
of the United States in administering relief where it is acting in a
matter ancillary to a decree rendered in a cause over which it had
jurisdiction; nor is a Circuit Court debarred from enforcing its decree
by ancillary suit in equity restraining improper prosecutions of ac-
tions in the state courts because there is an adequate remedy at law
by interposing defenses in those actions. Ib.

1. Contract relating to commerce within prohibitions of Sherman Act.
A contract is not to be assumed to contemplate unlawful results unless a
fair construction requires it; and where a contract relates to com-
merce between points within a State, both on a boundary river, it
will not be construed as falling within the prohibitions of the Sher-
man Act because the vessels affected by the contract sail over soil
belonging to the other State while passing between the intrastate
points. Cincinnati Packet Co. v. Bay, 179.

2. Interference with interstate commerce affecting validity of contract.
Even if there is some interference with interstate commerce, a contract is
not necessarily void under the Sherman Act if such interference is in-
significant and merely incidental and not the dominant purpose; the
contract will be construed as a domestic contract and its validity
determined by the local law. Ib.

3. Effect on validity of contract for sale of vessels engaged in interstate com-
merce of agreement against competition.

A contract for sale of vessels, even if they are engaged in interstate com-
merce, is not necessarily void because the vendors agree, as is ordinary
in case of sale of a business and its good will, to withdraw from busi-
ness for a specified period. Ib.

4. Options to purchase and options to rescind differentiated.

An option to purchase if the buyer likes the property is essentially differ-
ent from one to return the property and cancel the contract; in the
former case title does not pass until the option is determined, in the
latter it passes at once, subject to the right to rescind; and, as held
in this case, if the option to rescind is not exercised, and the property
returned according to its terms, the sale is complete, and the promise
to pay the balance of the purchase price becomes absolute. Guss v.
Nelson, 298.

1. Failure to elect trustees affecting corporate existence.

The franchise of a corporation is not taken away or surrendered, nor is the
corporation dissolved, by the mere failure to elect trustees. Speer v.
Colbert, 130.

2. Corporate powers of educational institution.

It is within the powers of an institution intended for the instruction of
youth in the liberal arts and sciences to take and use a fund for the
cultivation of historical research.

Ib.

3. Stock; allegations to establish fraud in contract of sale of—Action by mi-
nority stockholder to set aside contract-Admissibility of evidence.
This was a minority stockholder's suit to set aside a contract made for the
sale of a large block of stock of the corporation under an arrangement
made by the respective owners thereof with the party making the sale
who was also president of the corporation. The contract was ratified
by a majority of the stockholders and by the directors but against
complainant's protests. It contained provisions for payments to the
president for services. Complainant charged fraud, alleged a con-
spiracy between the president and the purchaser and asked for a re-
ceiver and an accounting. Other suits were brought in other courts
in which similar charges were made. Held, that: on the record of this
case the charges of fraud were not sustained and the complaint was
not established. Where the allegations in the suit in which fraud is
alleged are held to be untrue, records of other suits in which like charges
were made and sustained on ex parte statements cannot be regarded
as evidence of the fraud. Hallenborg v. Cobre Copper Co., 239.

4. Control by legislature-Effect of ordinance extending franchise.
Even though an ordinance extending a franchise may be construed as a
contract, it is still subject to the control of the legislature if the con-