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(6) In such a case, while this court cannot take the place of a legislature
it must determine whether there any principle of law, and if any
what, on which the plaintiff State can recover.
(c) Every matter which would be cognizable in equity if between private
citizens in the same jurisdiction would not warrant this court in in-
terfering if such matter arose between States; this court should only
intervene to enjoin the action of one State at the instance of another
when the case is of serious magnitude, clearly and fully proved; and
in such a case only such principles should be applied as this court is
prepared deliberately to maintain.
(d) While a State may have relief in this court against another State to
prevent it from discharging sewage through an artificial channel into,
and thereby polluting the waters of, a river flowing through both
States and on 'which the complainant State relies for water supply,
if the alleged facts as to such pollution are not fully proved, and it
also appears that such pollution might result from the discharge of
sewage by cities of the complainant State into the same river the bill
should be dismissed,—but in this case without prejudice. Missouri
v. Ilinois, 496.
13. Of appeal from Supreme Court of Porto Rico.
A Porto Rican contracted, in 1894, to pay a certain amount of pesos in
money current in the commerce, whatever may be the coinage in cir-
culation, at the rate of one hundred centavos of the money in circula-
tion for each peso. Section 11 of the Foraker Act, passed April 12,
1900, provided for the retiring of Porto Rican coin and the substitu-
tion thereof of United States coin and for the payment of debts at
the rate of sixty cents per peso—and thereafter the debtor offered to
pay the obligation at that rate, but the Supreme Court of Porto Rico
held that he was entitled under the contract to one hundred cents
for each peso. The creditor also claimed the matter was res judicata
under a judgment which had been obtained for an instalment of in-
terest. In reversing this judgment held, that appellant having claimed,
and been denied, the right to pay the indebtedness at the rate fixed
by $ 11 of the act of April 12, 1900, this court has jurisdiction under
$ 35 of that act to review the judgment on appeal. Serralles v. Esbri,
14. Review of construction by state court of state statute.
The construction, by the highest court of a State, that a license tax im-
posed on meat packing houses was exacted from a foreign corpora-
tion doing both interstate and domestic business only by virtue of
the latter, is not open to review in this court. Armour Packing Co.
v. Lacy, 226.
See EQUITY, 3.
B. OF CIRCUIT COURTS.
1. Cognizance of suit to prevent inunicipality from improperly issuing honds
where neither Federal question nor direrse citizenship exists.
The Circuit Court cannot take cognizance of a suit to prevent a munici-
pality from improperly issuing bonds under the circumstances of this
case as it does not involve a controversy under the Constitution and
laws of the United States and diverse citizenship does not exist. Water-
works Company y. Owensboro, 38.
2. Sufficiency of averments of pleading to raise Federal question.
Where the bill properly sets forth the facts on which a corporation insists
that the agreement under which it erected, and is operating, its plant
constituted a contract whereby it acquired exclusive rights for a
given period and that the obligation of that contract will be impaired
by the threatened action of the municipality in erecting its own water-
works, the case is one arising under the Constitution of the United
States and of which the proper Circuit Court can take cognizance
without regard to the citizenship of the parties. Water Company v.
3. Sufficiency of pleading Federal question to confer jurisdiction in absence
of diversity of citizenship.
In order that the Circuit Court may have jurisdiction where diverse citizen-
ship does not exist it must appear, by a statement in legal and logical
form, such as good pleading requires, that there is a controversy really
involving the construction or application of the Federal Constitution
or that the validity or construction of a treaty or statute made under
its authority is drawn in question. Catholic Missions v. Missoula
4. Of action to recover taxes levied by State.
The Circuit Court has no jurisdiction of an action, where diverse citizen-
ship does not exist, to recover taxes where the right depends upon
statutes of the State and no claim to exemption is based on any pro-
vision in the Federal Constitution; or on any Federal statute or treaty
with Indians; nor can it be assumed from the complaint in this case
on any Federal ground that cattle, belonging to a religious organiza-
tion and roaming over an Indian reservation, are exempt from taxa-
tion by the State because the organization devotes its property to
purposes of charity among the Indians; nor can such exemption be
claimed on the ground that the property is one of the means and
instrumentalities of the Federal Government. Ib.
5. Of action by transferee to recover contents of promissory note or chose in
action–Of suit to foreclose mortgage—Pleading.
In construing $1 of the act of August 13, 1888, which provides that Circuit
and District Courts shall not have cognizance of suits to recover the
contents of any promissory note or chose in action in favor of an as-
signee or subsequent holder unless the suit could have been prose-
cuted in such court, if no assignment or transfer had been made, this
court has held, that:
A suit to recover the contents of a promissory note or other chose
in action is a suit to recover the amount due upon such note, or
the amount claimed to be due upon an account, personal contract
or other chose in action.
A suit to foreclose a mortgage is within the inhibition of the act,
and can only be maintained where the assignor was competent
to file the bill.
The bill or other pleading must contain an averment showing that
the suit could have been maintained by the assignor if the assign-
ment had not been made.
A suit may be maintained between the immediate parties to a prom-
issory note as indorser or indorsee, provided the requisite diversity
of citizenship appears as between them, or upon a new contract
arising subsequently to the execution of the original, notwith-
standing a suit could not have been maintained upon the original
contract, and in such case the original contract may be con-
sidered to ascertain the amount of damages.
Although an action of fraud might be sustained upon the facts involved in
an action where the requisite diversity of citizenship exists if the suit
is in substance one to foreclose a mortgage, and it appears by the bill
that the fraud is a mere incident, the suit is one within the meaning
of § 1 of the act of August 13, 1888, and will not lie in a Federal court
unless plaintiff's assignor might have maintained the bill had no trans-
fer been made. Kolze v. Hoadley, 76.
See CONSTITUTIONAL LAW, 17, 19;
JURISDICTION, C 2.
C. OF FEDERAL COURTS Generally.
1. Power over state instrumentalities.
When a Federal court acquires jurisdiction of a controversy by reason of the
diverse citizenship, it may dispose of all the issues in the case, deter-
mining the rights of parties under the same rules or principles that
control when the case is in the state court. But, as between citizens
of the same State, the Federal court may not interfere to compel
municipal corporations or other like state instrumentalities to keep
within the limits of the power conferred upon them by the State, unless
such interference is necessary for the protection of a Federal right.
Waterworks Company v. Owensboro, 38.
2. Habeas corpus; limitation of jurisdiction to issue writs of.
As the jurisdiction of courts of the United States to issue writs of habeas
corpus is limited to cases of persons alleged to be restrained of their
liberty in violation of the Constitution or of some law or treaty of the
United States, and cases arising under the law of nations, a Cirevit
Court cannot issue the writ to release a citizen from imprisonment by
another citizen of the State merely because the imprisonment is illega!.
Carfer v. Caldwell, 293.
See CONSTITUTIONAL LAW.
D. OF STATE COURTS.
E. OF EQUITY.
See CONSTITUTIONAL LAW, 6, 9.
Right of accused person as to racial composition of jury.
Wbile an accused person of African descent on trial in a state court is en-
titled under the Constitution of the United States to demand that in
organizing the grand jury, and empanelling the petit jury, there shall
be no exclusion of his race on account of race and color, such dis-
crimination cannot be established by merely proving that no one of
his race was on either of the juries; and motions to quash, based on
alleged discriminations of that nature, must be supported by evidence
introduced or by an actual offer of proof in regard thereto. Smith.
v. Mississippi, 162 U. S. 592, 600, followed. An accused person can-
not of right demand a mixed jury some of which shall be of his race,
nor is a jury of that kind guaranteed by the Fourteenth Amendment
to any race. Martin v. Texas, 316.
See PUBLIC LANDS.
LIMITATION OF ACTIONS.
See Local Law (ARIZ.).
Arizona. Limitation of actions—Rev. Stat. Arizona, 1901, $ 2938. There
was no statute of limitations in Arizona prior to 1901 barring a right
of action for the recovery of lands by one claiming title against another
holding merely by peaceable and adverse possession, and paragraph 2938,
Rev. Stat. Arizona, 1901, requiring such an action to be instituted
within ten years after the cause of action accrues has no retroactive
effect making it applicable to an action commenced prior to its enact-
ment and under the circumstances of this case. Herrick v. Boquillas
Cattle Co., 96.
Public lands, Rev. Stat. $ 891 (see Public Lands. 2), Howard v. Perrin, 71.
Public Waters, Rev. Stat. $ 3199, sec. 1 (see Waters). Ib.
California. Inheritance tax (see Constitutional Law, 14). Campbel v.
District of Columbia. Bequests to sectarian institutions (see Wills, 1).
Kentucky. Effect of absence of accused from trial. It is the law of Kentucky
that occasional absence of the accused from the trial from which no
injury results to his substantial rights is not reversible error. Howard
v. Kentucky, 164.
Criminal Code, $ 281 (see Constitutional Law, 9). Ib.
Constitution, $ 241, and Statutes of Kentucky, $ 6 (see Removal of
Causes, 2). Cincinnati & Texas Pacific Ry. v. Bohon, 221.
Minnesota. Corporations; liability of stockholders. A Minnesota manu-
facturing corporation having failed, the creditors, a national bank
among them, organized a new corporation under the laws of Minne-
sota for the purchase of the capital stock, evidences of indebtedness
and assets of the corporation and for the manufacture of the same
articles that it had manufactured. The bank and other creditors
exchanged their claims against the old corporation for stock in the
new corporation. After the incorporation, and prior to the failure,
of the new corporation the laws of Minnesota imposing double lia-
bility on stockholders of certain corporations were amended and a
new method of procedure for enforcing them was provided. Stock-
holders of corporations organized exclusively for manufacturing pur-
poses are not subject to double liability. Proceedings having been
taken under the statute to enforce the double liability of the stock-
holders, a receiver was appointed, an assessment determined, and a
judgment for the pro rata amount obtained against the national bank,
which denied liability, claiming that the corporation was organized
for manufacturing purposes only, and therefore the stockholders were
exempt from double liability; that the provisions in the statute pro-
viding for enforcing double liability were unconstitutional under the
impairment of obligation clause of the Federal Constitution; and that
the original taking of the stock by it as a national bank was ultra vires.
Held, that under the construction given by the Supreme Court of Minne-
sota to its articles of association the corporation was organized to
engage in a purely speculative business in buying and selling the stock
and assets of another corporation with power, but without any obli-
gation, to engage independently in a manufacturing business and did
not fall within the class of corporations whose stockholders were ex-
empted from liability. First Vational Bank v. Converse, 125.
North Carolina. Subjection of mortgaged property of corporations to execu-
tion on judgments for tort. Section 1255 of the Code of lorth Carolina
of 1883 provides that mortgages of corporations shall not exempt the
property mortgaged from execution for judgments obtained in the
state courts against the corporation for torts and certain other causes.
A corporation constructed a plant for supplying a city with water,
having received exclusive authority therefor from the city. It executed
two mortgages, under the foreclosure of the second of which its plant
was sold, subject to the first mortgage, to a new corporation, which
then executed a further mortgage. Subsequently judgments were
rendered in actions brought by property-owners against the new cor-