N WRIT OF CERTIORARI to the United | ified therein. They were consolidated and tried Circuit Appeals together, and a verdict of guilty returned as Sixth Circuit to review a judgment of that court affirming the judgment of the Circuit Court of the United States for the Middle District of Tennessee convicting Marcus A. Spurr for the violation of U. S. Rev. Stat. § 5208, in regard to certification of checks by an officer of a national bank. Judgment of the Circuit Court of Appeals and of the Circuit Court reversed, and cause remanded to the latter court for a new trial. See same case below, 59 U. S. App. 663, 87 Fed. Rep. 701, 31 C. C. A. 202. Statement by Mr. Chief Justice Fuller: 29] *Spurr was tried in the circuit court of the United States for the middle district of Tennessee on three indictments, each containing several counts, for the violation of section 5208 of the Revised Statutes, which provides: "It shall be unlawful for any officer, clerk, or agent of any national banking association to certify any check drawn upon the association unless the person or company drawing the check has on deposit with the association at the time such check is certified an amount of money equal to the amount specified in such check. Any check so certified by duly authorized officers shall be a good and valid obligation against the association; but the act of any officer, clerk, or agent of any association, in violation of this section, shall subject such bank to the liabilities and proceedings on the part of the Comptroller as provided for in section fifty-two hundred and thirty-four." By section 13 of the act of Congress approved July 12, 1882 (22 Stat. at L. 162, chap. 290), it is provided: "That any officer, clerk, or agent of any national banking association who shall wilfully violate the provisions of an act entitled 'An Act in Reference to Certifying Checks by National Banks,' approved March third, eighteen hundred and sixty-nine, being section fifty-two hundred and eight of the Revised Statutes of the United States, or who shall resort to any device, or receive any fictitious obligation, direct or collateral, in order to evade the provisions thereof, or who shall certify checks before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof in any circuit or district court of the United States, be fined not more than five thousand dollars, or shall be imprisoned not more than five years, or both, in the discretion of the court." The indictments charged that Spurr, being the president of the Commercial National Bank of Nashville, Tennessee, wilfully violated the provisions of section 5208 of the Revised Statutes by wilfully, unlawfully, and knowingly certifying certain checks drawn on 730]said bank by Dobbins and Dazey, well *knowing that Dobbins and Dazey did not have on deposit with the bank at the times when the checks were certified, respectively, an amount of money equal to the respective amounts spec follows: "Came the United States attor ney, and also the defendant in proper person, and came also the jury heretofore impaneled, and upon their oaths do say that they find the defendant guilty as charged in the indictment, and recommend him to the mercy of the court." Motions for new trial and in arrest of judgment were made and overruled, and judgment entered on the verdict in these words: "And thereupon the United States, by its district attorney, moved the court for sentence upon the verdict of the jury heretofore rendered, upon count No. 2 of indictment No. 7994, count No. 2 of indictment No. 8139, counts Nos. 1 and 4 of indictment No. 7994, count No. 3 of indictment No. 8139, count No. 2 of indictment 8078 and count No. 5 of indictment No. 8139. The defendant was thereupon called upon by the court to stand and was asked by the court if he had anything further to say why the sentence of the law should not be pronounced against him, and he replied that he had nothing further to say than he had already said; and the court, being cognizant of the facts attending said verdict and of the manner in which the issues found by said verdict were submitted to the jury, finds and so orders and adjudges that said verdict is applicable to indictment No. 7994, counts 1 and 4, and indictment No. $139, count 3, all of which are based upon a check certified by the defendant, dated January 3d, 1893, and upon said verdict upon said count of said indictments, the court orders and adjudges that the defendant be confined in the penitentiary of the state of New York, at Albany, New York, for two years and six months from this date." The several counts of the consolidated indictments charged the certification by defendant of four checks drawn by Dobbins and Dazey between December 9, 1892, and February 13, 1893, both inclusive, on the Commercial National Bank, aggregating $95,641.95. The bank was organized in 1884,, and defendant was its president and one[731] Porterfield its cashier from its organization to its failure, March 25, 1893. Dobbins and Dazey were engaged in the purchase, sale, and exportation of cotton, and their financial standing and credit were excellent. When the four checks in question were certified by defendant the accounts of Dobbins and Dazey were overdrawn, and the evidence was that their account was continuously and largely overdrawn during the period covered by these checks, except on one day, and that "this fact was known to Porterfield, the cashier, and all the employees of the bank under him in authority." But "there was also evidence tending to show that Porterfield misrepresented the real state of the Dobbins and Dazey account to the defendant and the committees and the directors of the bank, by statements made to them, and also in his sworn reports to the Comptroller of the Currency, wherein the overdrafts in the bank were very largely understated." There was also evidence on behalf of defendant to the effect "that he had no knowledge of the fact that the account of Dobbins and Dazey was overdrawn on the books of the bank at the time of the certification of any of the checks upon which he is indicted, nor at any time during the period covered by the dates of the checks;" that when he certified these checks he inquired in every instance either of the cashier or of the exchange clerk, and in every instance received information that sufficient funds and credits of Dobbins and Dazey were then in the bank to cover the checks certified, and that he never at any time certified a check without receiving such information, and that he relied upon it as true; that if the cashier was in, he inquired of him; if not, he inquired of the exchange clerk; these being the appropriate sources of information. The evidence on this head is given in much detail in the bill of exceptions. The bill of exceptions also stated"After the jury were charged and had retired from the courtroom to consider their verdict, and had been deliberating for some hours, they returned to the courtroom and asked the following question, which was written out in pencil and handed to the court: [732] *" We want the law as to the certification of checks when no money appeared to the credit of the drawer.' "The court then said: The jury state that they want the law as to the certification of a check where there is no money to the credit of the drawer. 'I cannot better answer this question which the jury has put to the court, than by reading the section of the Revised Statutes which relates to that subject.' "Reads from sec. 5208, Rev. Stat.): It shall be unlawful for any officer, clerk, or agent of any national banking association to certify any check drawn upon the association unless the person or company drawing the check has on deposit with the association, at the time such check is certified, an amount of money equal to the amount specified in such check.' "Does this answer your question?' "FOREMAN OF THE JURY: Yes, sir.' "THE COURT: 'I read it again so that you may all understand it.' (The court read again that part of section 5208, Rev. Stat. quoted above, and added): be good. That is what is meant by false certification. It is the certifying by an officer of a bank that a check is good when there are no funds there to meet it. *"'You understand what I have said now[733) is to be taken in connection with what I have before instructed you.' "As the jury were retiring, counsel for defendant said to the court that he thought what the jury wanted was the act of 1882 making it a misdemeanor to wilfully violate the section of the Revised Statutes which the court had read to them, and that the court ought to read and explain that act to the jury; the court asked if counsel referred to the act prescribing the penalty for false certification, and on being answered in the affirmative, stated that the jury had nothing to do with that. "To this action of the court in reading twice section 5208 of the Revised Statute and in failing to read and explain the act of 1882, in response to the jury's question, and to the additional instructions given to the jury at this time beginning with the words "The $30,000' and ending with the words 'to meet it,' the defendant then and there excepted." Sentence having been pronounced as before stated, the case was taken on error to the circuit court of appeals for the sixth circuit, and the judgment was affirmed, 59 U. S. App. 663, whereupon the cause brought to this court on certiorari. was Messrs. John A. Pitts, Albert H. Horton, and Bailey P. Waggener for petitioner. Messrs. Edward Baxter and John G. Tompson, Assistant Attorney General, for respondent. *Mr. Chief Justice Fuller delivered the[733] opinion of the court: It was not denied that defendant certified the checks, and that the account of Dobbins and Dazey was overdrawn when the certifications took place. The questions for determination were defendant's knowledge of the state of Dobbins and Dazey's account when the checks were certified and his intent in the certifications. Section 5208 made it unlawful for any officer, clerk, or agent of any national banking[734) "Is that all, gentlemen? The $30,000 association to certify any check drawn upon was the credit allowed, and these overdrafts, it, unless the drawer of the check had on deas the court understands from the testimony posit at the time such check was certified an in the case, were in excess of that. The acamount of money equal to the amount specicount of Dobbins & Dazey-the overdrafts-fied therein, and provided the consequences were in excess of the amount which Dobbins & Dazey had as a limit of line of credit. "I charge you in addition to the instructions I gave you this morning, that a check drawn upon a bank, where the drawer has no funds, creates no obligation against the bank, and it does not create any obligation until it is certified as good by an officer of the bank, and that makes the check good as to the holder of it, and the bank then he comes estopped, although there was no warrant for the drawing of the check, as against the bona fide holder. So that the obligation of the bank to meet it in such case is made so by the act of the officer who certifies it to which should follow on a violation of the section. Then came section thirteen of the act of July 12, 1882, which made a wilful violation of section 5208 criminal, and denounced a penalty thereon. These sections were under consideration in Potter v. United States, 155 U. S. 438, 445 [39: 214, 217], and the court said: "The charge is of a wilful violation. That is the language of the statute. Section 5208 of the Revised Statutes makes it unlawful for any officer of a national bank to certify a cheque unless the drawer has on deposit at the time an equal amount of money. But this section carries with it no penalty against the wrongdoing officer. Section 13 of the act of 1882 imposes the penalty, and imposes it upon one 'who shall wilfully violate,' etc., as well as upon one 'who shall resort to any device,' etc., to evade the provisions of the act;' 'or who shall certify cheques before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association.' The word 'wilful' is omitted from the description of offenses in the latter part of this section. Its presence in the first cannot be regarded as mere surplusage; it means something. It implies on the part of the officer knowledge and a purpose to do wrong. Something more is required than an act of certification made in excess of the actual deposit, but in ignorance of that fact or without any purpose to evade or disobey the mandates of the law. The significance of the word 'wilful' in criminal statutes has been considered by this court. In Felton v. United States, 96 U. S. 699, 702 [24: 875, 876], it was said: 'Doing or omitting to do a thing knowingly and wilfully implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. The word "wilfully" says Chief Justice Shaw, in the ordinary sense in which it is used in statutes, means not merely "voluntarily," but with a bad pur- The record shows that then, "as the jury pose.' [Com. v. Kneeland] 20 Pick. 220. were retiring, counsel for the defendant said 1735] It is frequently understood,' says Bishop, to the court that he thought what the jury 'as signifying an evil intent without justifi- wanted was the act of 1882 making it a misable excuse.' Crim. Law, vol. 1, § 428. demeanor to wilfully violate the section of "And later, in the case of Evans v. United the Revised Statutes which the court had States, 153 U. S. 584, 594 [38: 830, 834], read to them, and that the court ought to there was this reference to the words 'wil- read and explain that act to the jury; the fully misapplied': 'In fact, the gravamen of court asked if counsel referred to the act prethe offense consists in the evil design with scribing the penalty for false certification, which the misapplication is made, and a and on being answered in the affirmative, count which should omit the words "wil-stated that the jury had nothing to do with fully," etc., and "with intent to defraud," would be clearly bad.'. belief was founded on information he received from the cashier or the exchange clerk, the proper sources of information, in response to inquiries which he made in each instance before he certified; that he honestly relied on that information, and that he had the right to do so. Defendant, was entitled to the full benefit of this defense, and in order to that, it was vital that the meaning of "wilful violation," as used in section 13 of the act of 1882, should be clearly explained to the jury. *It appears from this record that, after the[736] case had been committed to the jury, and they had had it under consideration for some hours, they returned to the courtroom, and asked the following question, which was written out: "We want the law as to the certification of checks when no money appeared to the credit of the drawer." The court then read to the jury the first part of section 5208 of the Revised Statutes, and inquired: "Does this answer your question?" To which the foreman replied: "Yes, sir." The court again read that part of the section, and made certain observations, among other things, that a false certification "is the certifying by an officer of a bank that a check is good when there are no funds to meet it." that." Exception was taken to the reading We think that the learned circuit judge "While it is true that care must be taken The wrongful intent is the essence of the The defense was that defendant had no 73 the penalty only, though, as the matter ap- 1153 in the court's instructions. In this connection, you will bear in mind what I have previously charged you, that if this was a general, and not a special, account of Dobbins and Dazey, that the exchange which came in was applicable in the first place to the liquidation of the previously existing overdraft before there could be said to be any funds to the account of Dobbins and Dazey to respond to the checks." violation of section 5208. We cannot accept the view that because when the court asked the jury whether the first part of section 5208 answered their question, the foreman replied in the affirmative, therefore there was no error in the failure to call their attention to section 13. If the court was satisfied that the law applicable to the case was embodied in the first part of section 5208, the jury were bound to be satisfied also; but we are of opinion that that was an insufficient "If the proof fails to satisfy your minds definition, and was therefore erroneous. clearly and beyond a reasonable doubt, that However the court went further, and said: the defendant did actually know, at the time "I charge you, in addition to the instruc- he certified the checks mentioned in the intions I gave you this morning, that a check dictment, that Dobbins and Dazey did not drawn upon a bank, where the drawer has no have on deposit in the bank sufficient funds funds, creates no obligation until it is certi- and credits to meet the checks so certified, fied as good by an officer of the bank, and then you should acquit him, unless you are that makes the check good as to the holder convinced by the proof beyond a reasonable of it, and the bank then becomes estopped, doubt that he wilfully, designedly, and in bad although there was no warrant for the draw-faith-these words mean substantially the ing of the check, as against the bona fide holder. So that, the obligation of the bank to meet it in such case is made so by the act of the officer who certified it to be good. That is what is meant by false certification. It is the certifying by an officer of a bank that a check is good when there are no funds there to meet it. "You understand what I have said now is to be taken in connection with what I have before instructed you." We fear that these instructions, following in direct connection with what had passed in reference to section 5208, may have led the jury to understand the law of the case to be that the false certification thus defined constituted a criminal offense under the statute, and that that impression was not rendered harmless by the admonition that what was then said was to be taken with what had been said before. same thing-shut his eyes to the fact and The court had also said that "in general, if the defendant acted in good faith in making these certifications, believing that the state of the account of Dobbins and Dazey justified it, he is not guilty of the offense charged. Mere negligence or carelessness unaccompanied by bad faith would not render him guilty." And other passages of similar purport might be quoted. But the jury desired further advice as to what constituted criminal certification, or wilful violation of section 5208, and preferred a request which required a comprehensive answer. The response was in the nature of a separate charge, and we are unable to conclude that the error in declining at that time to call attention to section 13 was cured by the bare reference to the original charge. Many other errors were assigned and pressed in argument, but, as the particular points may not arise in the same way on another trial, we prefer to refrain from expressing any opinion upon them. At all events, we think it would be going [788] too far to hold that that caution operated to obviate the error in failing to explain section 13 at this particular juncture. The jury had been considering their verdict for several hours, and had then in effect requested a more complete definition of the offense. This the court assumed to give, but it was incomplete, and what was omitted cannot properly be held to have been supplied, under the circumstances, by the reference to prior instructions. The court had indeed, in the original charge, used the words "wilfully" and "wilful" in the following instruc- Kenna dissented. tions: "If you find from the proof that the ac The judgment of the Circuit Court of Appeals is reversed; the judgment of the Circuit Court is also reversed, and the cause re manded to that court with a direction to set aside the verdict and grant a new trial. Mr. Justice Brown and Mr. Justice Mc Appt., v. count of Dobbins and Dazey, upon the books SAN DIEGO LAND & TOWN COMPANY, of the bank, was overdrawn continuously during the period covered by the dates of the checks certified by the defendant, and that the defendant was in fact ignorant of such overdraft; and that he certified the several checks mentioned in the indictment believing at the time that the exchange deposited by Dobbins and Dazey on the days upon which said checks were certified, was sufficient or more than sufficient to cover the amount of CITY OF NATIONAL CITY and John G. (See S. C. Reporter's ed. 739-760.) Formal notice of fixing water rates opportunity to be heard-judicial interference -basis of calculation—losses from distribution. 1. Formal notice as to the precise day upon 2. favorable conditions than are prescribed by law to similar corporations organized under the laws of this state." Art. 12, § 15; which water rates will be fixed by ordinance | transact business within this state on more and the statutes of the state requiring the An opportunity to be heard upon the ques- in conferences between the officers of the cor- ipal authorities, and such officers are heard, 8. Judicial interference should never occur of law. The losses from distribution of water to considered in fixing by ordinance the rates for consumers within the city. sumers outside of the city are not to be con [No. 25.] *That "the use of all water now appropri-[741] ated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public vse, and subject to the regulation and control of the state, in the manner to be prescribed by law; provided, that the rates or compensation to be collected by any person, company, or corporation in this state for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, annually, by the board of supervisors, or city or county, or city or town council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legislative acts or resolutions are passed by such body, and shall continue in force for one year, and no longer. Such ordinances or resolutions shall be passed in the month of February of each year, and take effect on the first day of July thereafter. Any board or body failing to pass the necessary ordinances or resolutions fixing water rates, where necessary, within such time, shall be subject to peremptory process to compel ac tion at the suit of any party interested, and shall be liable to such further processes and Any person, company, or corporation collectpenalties as the legislature may prescribe. ing water rates in any city and county, or city or town in this state, otherwise than as so established, shall forfeit the franchises and water works of such person, company, or corporation to the city and county, or city or Submitted October 11, 1898. Decided May town where the same are collected, for the 22, 1899. PPEAL from a decree of the Circuit A Court of the United States for the Southern District of California dismissing a suit brought by the San Diego Land & Town Company against the City of National City et al. to obtain a decree that the water rates fixed by the defendant city were void; that the Constitution and laws of California and the proceeding of the Trustees of the City were in violation of the Federal Constitution, and that the plaintiff should be entitled to reasonable water rates, etc. Affirmed. See same case below, 74 Fed. Rep. 79. Statement by Mr. Justice Harlan: [740] *This appeal brings up for review a decree of the circuit court of the United States for the southern district of California dismissing a bill filed in that court by the San Diego Land & Town Company, a Kansas corporation, against the city of National City, a municipal corporation of California, and John G. Routsan and others, trustees of that city and citizens of California. 74 Fed. Rep. 79. The nature of the cause of action set out In the bill is indicated by the following statement: The Constitution of California declaresThat "no corporation organized outside the limits of this state shall be allowed to 174 U. S. public use." Art. 14, § 1; and, pensation for the use of water supplied to passed March 7th, 1881, it was provided: "§ 1. The board of supervisors, town "§ 2. The board of supervisors, town council, board of trustees or other legislative body of any county, city, or town, are hereby authorized, and it is made their duty, at least thirty days prior to the 15th day of January of each year, to require, by ordinance or otherwise, any corporation, company, |