iacts appearing in the record and the grounds
on which that court proceeded as disclosed
by its opinion.

Counsel asserts that the rights claired
under the Constitution of the United States
were the right to due process of law. and the
right to the equal protection of the laws.

The right to the equal protection of the laws was certainly not denied, for it is apparent that the same law or course of procedure which was applied to Tinsley would have been applied to any other person in the state of Texas, under similar circumstances and conditions; and there is nothing in the record on which to base an inference to the contrary.

Was the right to due process of law denied? If the committing court had jurisdiction of the subject-matter and of the person, and power to make the order for disobedience to which the judgment in contempt was rendered, and to render that judgment, then the court of criminal appeals could not do other wise than discharge the writ of habeas corpus and remand the petitioner. The writ cannot be availed of as a writ of error or an appeal, and if the commitment was not void petitioner was not deprived of his liberty without due process of law.

doubtedly competent for the district court to compel the surrender of the minute book and notes in Tinsley's possession, and that he could not be discharged on habeas corpus until he had performed or offered to perform so much of the order as it was within the power of the district court to impose, even though it may have been in some part invalid. Re Swan, 150 U. S. 637 [37: 1207].

The other objections suggested require no special consideration. It is said that the imprisonment for contempt was limited by the state statute to three days (art. 1101, Tex. Rev. Stat.), but the state court held that that statute had reference to a quasicriminal contempt as a punishment, and not to a civil contempt, where the authority of the court is exercised by way of compelling obedience. Rapalje, Contempt, § 21. This is not a Federal question, and we accept the ruling of the state court in its construction of the statute. It is urged that the order of commitment imposed an uncertain and indefinite term of imprisonment; but the order was that Tinsley should be confined until he complied, and the addition, "or *until he shall be discharged by the further order of the court," was merely intended to retain the power to discharge him if the court should thereafter conclude to do so, it being within his own power to obtain his discharge at any time by obeying the order. Nor is there any force in the objection that no trial by jury was awarded, for such trial was not demanded, and a jury trial is not necessary to due process of law on an inquiry for contempt. Walker v. Sauvinet, 92 Ú. S. 90 [23: 678]; Eilenbecker v. Plymouth County District Court, 134 U. S. 31 [33: 801]; Rapalje, Contempt, § 112.

The district court of Harris county, Texas, was a court of general jurisdiction, and had jurisdiction in the suit against the Cemetery Company and its officers, including Tinsley, who was not a stranger, but a party, to the litigation, after hearing had on due notice and appearance by the defendants, to enter the order appointing a receiver and directing the company's officers to deliver to him, on his demand therefor, the company's property in their custody, including the books, notes, and moneys on hand, and to determine on the facts that Tinsley was in contempt in refus ing to deliver such property, and assuredly to adjudge this as to so much of the property as he conceded belonged to the company, but [107]the possession of which he claimed the right CENTRAL NATIONAL BANK OF BOSto retain only in order to enforce an alleged lien.

The judgments of the Circuit Court and of the Court of Criminal Appeals are severally affirmed.

TON et al.



(See 8. C. Reporter's ed. 108, 109.)

Motion to amend mandate.

Where the motion to amend the mandate of this court proceeds on a misconception of the meaning of the judgment and mandate, the motion will be denied.

The court of criminal appeals held that, as Tinsley did not claim the legal title in the notes and in the minute book, but merely an equity or lien thereon to secure his debt; as the order to turn over the property to the receiver was by no means an adjudication as to his lien,which if it was a genuine lien would be preserved to him in the hands of the receiver; and as the effect of the order was merely to place the articles in the hands of the receiver for administration under the orders of the court,-the district court unquestionably had the power to make the order Submitted May 9, 1898. Decided May 31, as to these articles, and did not exceed its jurisdiction in so doing. So that even though the $492.52 was not a trust fund in his hands, IN ERROR to the Court of Appeals of the as the district court had decided, but a mere State of New York. On motion to amend the debt due from him, because, as he alleged, mandate in this cause (reported in 169 U. S. that sum had been taken by another, and he 432, 42 L. ed. 807) so as to command that the had simply agreed to make good, the ad- judgment be reversed only in the particulars judication of the district court was neverthe-described in the opinion of this court. Motion

less sustainable apart from that item.

We concur in the view that it was un 171 U. S. U. S.. BOOK 43.



[No. 38.]


See same case below, 144 N. Y. 50.


Mr. Edward Winslow Paige, for the NORTH AMERICAN COMMERCIAL COM110) defendants in error, in favor of motion:

The opinion of the court seems to show that the court intended to reverse the judgment in the two particulars only which are described in it. The mandate, however. commands the reversal of the whole judgment.

The defendants in error move to amend the mandate so that it conform to the opinion.

It is the opinion of the counsel who signs this brief that it is decidedly for the interest of the defendants in error that the motion be denied.

And for the following reasons:—

The whole judgment being reversed, there must inevitably, under the laws of New York, be a new trial of the whole action As the defendants in error might succeed in the new trial in all matters except those described in the opinion of the court-as to be reversed-there would be a general judgment in favor of the defendants in error like the present judgment, except that it would omit the injunction and the provision about the plaintiffs in error proving their certificates. Under that judgment there would of course be a new sale and the bondholders could then buy through the medium of a trustee other than Mr. Foster, thus relieving the case from the difficulty described in the opinion of the court.

It would also relieve the defendants in error from paying the costs of the court, since there is not any way under the laws of New York by which a successful plaintiff can be made to pay costs to the defendant.

And they can also show, although as we submit the present record shows, that not any of the proceeds of the certificates went into the property. Nevertheless we make the motion.

Mr. Charles E. Patterson for plaintiffs in error, in opposition to motion.

Per Curiam: The motion to amend the mandate in the above case seems to proceed on a misconception of the meaning of the judgment and mandate.

The judgment of this court does not undertake to affect or reverse the judgment of the

PANY, Plff. in Err.,



(See S. C. Reporter's ed. 110-137.) Lease by the government of the exclusive right to take fur seals-maximum number of seals-reduction of rental-Secretary of the Treasury-damages.





No reduction of the per capita amount to be

paid for each sealskin taken and shipped by a lessee of the government can be made on account of the limitation by the Secretary of the Treasury of the number of seals that may be killed, although by U. S. Rev. Stat. § 1962, a proportionate reduction of the rents reserved may be made, where the lease provides for an annual rental of $60,000 and in addition thereto for a certain sum for each skin taken and shipped, as this is in the nature of a bonus or addition to the stated consideration.

The original provision for a maximum number of seals to be taken by a lessee and a proportionate reduction of the fixed rental in case of a limitation, made by the act of Congress of 1870, is not done away with by implication by the act of May 24, 1874, which removes the restrictions imposed by U. S. Rev. Stat. §§ 1960, 1962, concerning the months during which seals may be taken and the number to be taken on or about each island respectively.

Assuming that the lessee took all the risk of a catch of seals reduced by natural causes, yet when the number that might be killed was limited by the act of the government or Its agent, the Secretary of the Treasury, the lessee was entitled to a reduction of the rental reserved in the same proportion as the number of skins permitted bore to the maximum.

In reducing the number of seals which may be taken by a lessee of the government in the Pribiloff islands, in the exercise of the power reserved to him, it is immaterial whether the Secretary of the Treasury acts on his own judgment, or in compliance with the will of the government as expressed by the treaty with Great Britain.

5. The right to take fur seals under a so-called lease from the government, which is expressly subject to such regulations of the business as the United States may make, does not entitle the lessee to any damages for a reduction of the catch allowed by the regulations, for which a reduction of rentals is provided. [No. 431.]


supreme court of the state of New York, ex-Argued April 18, 19, 1898. Decided May 31,
cept in so far as that judgment sought to re-
strain the Central National Bank of Boston
and the other plaintiffs in error from proceed-
ing under and in accordance with the decree
of the circuit court of the United States for
the northern district of New York, and to
compel them to again try in the supreme court
of New York matters tried and determined
in the circuit court. As between the other
parties the judgment of the supreme court
of New York was, of course, left undisturbed,
and it is not perceived that the terms of the
mandate signify anything else, or imply the
consequences suggested by counsel.

The motion is denied.

ON WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Second Circuit in an action brought by the United States in the Circuit Court of the United States for the Southern District of New York against the North American Commercial Company, to recover for rent under a lease made by the Secretary of the Treasury to the company of the right to engage in the

that of navigation, see note to Wright v. Mul

NOTE. As to right of fishery; subordinate to

vaney (Wis.) 9 L. R. A. 807.

As to prescriptive rights of fishery; in public navigable waters; in private waters, see note to Turner v. Hebron (Conn.) 14 L. R. A. 386.


business of taking fur seals on the islands of the business of taking fur seals on the IsSt. George and St. Paul, in the territory of lands of St. George and St. Paul, in the ter Alaska, and for royalties upon the seals ritory of Alaska, and to send a vessel or vestaken, and for the revenue tax on the skins, sels to said islands for the skins of such seals. the judgment of the Circuit Court being in "The said North American Commercial favor of the United States for $94,687.50, with Company, in consideration of the rights seinterest and costs amounting to $107,257.29. cured to it under this lease above stated, on Judgment of Circuit Court reversed, and its part covenants and agrees to do the cause remanded with direction to enter judg- things following, that is to say: ment in favor of the United States for $76,G87.50 with interest from April 1, 1894, etc. See same case below, 74 Fed. Rep. 145.

Statement by Mr. Chief Justice Fuller: This was an action brought by the United States against the North American Commercial Company to recover the sum of $132,187.50, with interest, for rent reserved for the year ending April 1, 1894, under a so-called lease, bearing date March 12, 1890, made by the Secretary of the Treasury to the company, and royalties upon 7,500 fur-seal skins taken and shipped by the company that year in virtue of that instrument, and for 111]the revenue tax of $2 on *each skin. The claim of the government consisted of these items:

Annual rental.

$60,000 00
15,000 00
57,187 50

Revenue tax on 7,500 skins at $2..
Per capita at $7.62% on 7,500 skins.
Total. . . .
$132,187 50
And interest thereon from April 1, 1894.
The case was tried by the circuit court
without a jury. The court found for the
United States in the sum of $94,687.50, with
interest, and judgment was entered in their
favor for $107,257.29, principal, interest, and
costs. 74 Fed. Rep. 145.

The company having taken a writ of error to the circuit court o: appeals for the second circuit, that court certified a certain question arising in the cause concerning which it desired the instructions of this court for its proper decision, whereupon this court ordered that the whole record and cause be sent up for consideration. A counterclaim of the company against the United States for breach of the lease was disallowed and dismissed by the circuit court, but not on the merits, and without prejudice to the right of the company to enforce the same by any other proper legal proceeding.

The agreement of lease out of which the cause of action arose is as follows:

"To pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars laid upon each fur seal skin taken and shipped by it from the islands of St. George and St. Paul, and also to pay to said Treasurer the iurther sum of seven dollars sixty-two and one half cents apiece for each and every fur seal skin taken and shipped from said islands, and also to pay the sum of fifty cents per gallon for each gallon of oil sold by it made from seals that may be taken on said islands during the said period of twenty years, and to secure the prompt payment of the sixty thousand dollars rental above referred to the said company agrees to deposit with the Secretary of the Treasury bonds of the United States to the amount of fifty thousand dollars, face value, to be held as a guarantee for the annual payment of said sixty thousand dollars rental, the interest thereon when due to be collected and paid to the North American Commercial Company, provided the said company is not in default of payment of any part of the said sixty thousand dollars rental.

"That it will furnish to the native inhabitants of said islands of St. George and St. Paul annually such quantity or number of dried salmon and such quantity of salt and such number of salt barrels for preserving their necessary supply of meat as the Secretary of the Treasury shall from time to time determine.

"That it will also furnish to the said inhabitants eighty tons of coal annually and a sufficient number of comfortable dwellings in which said native inhabitants may reside, and will keep *said dwellings in proper repair,and[113] will also provide and keep in repair such suitable school-houses as may be necessary, and will establish and maintain during eight months of each year proper schools for the education of the children on said islands, the same to be taught by competent teachers, who shall be paid by the company a fair compensation, all to the satisfaction of the Secretary of the Treasury, and will also provide and maintain a suitable house for religious worship, and will also provide a competent physician or physicians and necessary and proper medicines and medical supplies, and will also provide the necessaries of life for the widows and orphans and aged and infirm inhabitants of said islands who are unable to provide for themselves; all of which foregoing agreements will be done and performed by the said company free of all costs and charges to said native inhabitants of said islands or

"This indenture, made in duplicate this twelfth day of March, 1890, by and between William Windom, Secretary of the Treasury of the United States, in pursuance of chapter 3 of title 23, Revised Statutes, and the North American Commercial Company, a corporation duly established under the laws of the state of California, and acting by I. Liebes, its president, in accordance with a resolution of said corporation adopted at a meeting of its board of directors held January 4, 1890, witnesseth: That the said Secretary of the Treasury, in consideration of the agreements hereinafter stated, hereby leases to the said North American Commercial Company for a term of twenty years from the first day of [112] May, 1890, tne exclusive right to engage into the United States.

"The annual rental, together with all other |
payments to the United States provided for
in this lease, shall be made and paid on or
before the first day of April of each and every
year during the existence of this lease, be-
ginning with the first day of April, 1891.
"The said company further agrees to em-
ploy the native inhabitants of said islands
to perform such labor upon the islands as
they are fitted to perform, and to pay therefor
a fair and just compensation, such as may be
fixed by the Secretary of the Treasury; and
also agrees to contribute, as far as in its
power, all reasonable efforts to secure the
comfort, health, education, and promote the
morals and civilization of said native inhabi-

"The said company also agrees faithfully to obey and abide by all rules and regulations that the Secretary of the Treasury has heretofore or may hereafter establish or make in pursuance of law concerning the taking of seals on said islands, and concerning the comfort, morals, and other interests of said inhabitants, and all matters pertaining to said islands and the taking of seals within the possession of the United States. It also agrees to obey and abide by any restrictions or limitations upon the right to kill seals that [114]the Secretary of the Treasury shall judge necessary, under the law for the preservation of the seal fisheries of the United States; and it agrees that it will not kill or permit to be killed, so far as it can prevent, in any year a greater number of seals than is authorized by the Secretary of the Treasury.

"The said company further agrees that it will not permit any of its agents to keep, sell, give, or dispose of any distilled spirits or spirituous liquors or opium on either of said islands or the waters adjacent thereto to any of the native inhabitants of said islands, such person not being a physician and furnishing the same for use as a medicine.

"It is understood and agreed that the number of fur seals to be taken and killed for their skins upon said 'slands by the North American Commercial Company during the year ending May 1, 1891, shall not exceed sixty thousand.

ing of one male or bull and many females or
cows; that the young or male seals, or bache-
iors as they are called, are not admitted to
the breeding ground, but are driven off by
the older males and oftentimes destroyed by
them; that until such bachelor seals arrive
at the age of three or four years they occupy
other portions of the islands and can be
driven away from the breeding ground and
killed without disturbing the seals on the[115]
breeding grounds; that a large proportion of
these young bachelor seals may be so killed
without diminishing the birth rate of the
herd, and their skins are a valuable article of
commerce and are more valuable than the
skins of the females or older males; that by
protecting the females and restricting the
capture to the bachelors the fisheries are ca-
pable of a permanent and annual supply of
skins which would afford a valuable source
of revenue.

"Seventh. That after the making of the said lease by the said plaintiff and the said defendant, the said defendant entered upon the enjoyment of the right thereby granted it; but on account of the enforcement by the said plaintiff of the provisions of a convention or agreement made and entered into by the said plaintiff with the government of Great Britain it prohibited and prevented the said defendant, during the years 1890, 1891, and 1892, from taking on the said islands as many seals as might have been taken without diminution of the herd, and far less in each year than the number mentioned in the said lease for the first year; the numbers taken in those years being in 1890, 20,995; in 1891, 13,482; and in 1892, 7,547.

"Eighth. That for the said years of 1890, 1891, and 1892, it was agreed between the Secretary of the Treasury and the said defendant that the said defendant should pay to the said plaintiff for the seal skins taken by it on the said islands the tax and such proportionate part of the rental of $60,000 and the per capita sum of seven dollars sixty-two and one half cents, as the number of seals taken bore to one hundred thousand, except that for 1890 the per capita of seven dollars sixty-two and one half cents was not so reduced.

"The Secretary of the Treasury reserves the right to terminate this lease and all rights "Ninth. That by a convention or agreement of the North American Commercial Company with the government of Great Britain, comunder the same at any time on full and satis-monly called the modus vivendi, the United factory proof that the said company has violated any of the provisions and agreements of this lease, or in any of the laws of the United States, or any Treasury regulation respecting the taking of fur seals or concerning the islands of St. George and St. Paul or the inhabitants thereof."

The circuit court made eighteen findings, including the following:

States promised, during the pendency of the
arbitration between those two governments
relating to the Behring Sea controversy and
the preservation of the seals resorting to
those waters, to prohibit seal killing on the
said islands in excess of 7,500 to be taken
from the islands for the subsistence of the
natives, and to use promptly its best efforts
to insure the enforcement of the prohibition.

"Sixth. The said islands of St. George and *"Tenth. That pursuant to such agreement[116] St. Paul in the territory of Alaska are the the United States prohibited and prevented breeding ground of a herd of seals which in the said defendant from taking any seals the early spring moves northward to Behring whatever from the said islands during the Sea, and are the habitat of that herd during year 1893, and thus deprived the said defendthe summer and fall of each year; that the ant of the benefit of its said lease. seals land in great numbers upon the said "Eleventh. That the Secretary of the Treasislands and divide into families, each consist-ury did not exercise the discretion conferred

upon him by section 1962 of the Revised Stat-skins could have been sold, namely, $300,000, utes to limit the right of killing seals when leaves as the net loss sustained by the said necessary for the preservation of such seals, defendant in consequence of the breach of its and did not so limit or restrict the right of the said lease by the said plaintiff, the sum of said defendant to take seals under its said $142,187.50, which is due and owing to the lease for the year 1893, and that during that said defendant by the said plaintiff; and year it was not necessary or even desirable that its claim therefor would he a proper matfor the preservation of such seals to limit the ter of counterclaim or credit in this action, killing of the seals upon the said islands to if the conditions prescribed by § 951 of the the said number of 7,500 specified in the said United States Revised Statutes had been complied with by the said defendant."

modus vivendi.

"Twelfth. That in the year 1893 the United States government itself, through the agents of the Treasury Department, took up on the said islands 7,500 seals; that the said defendant was permitted to co-operate in selecting the seals so killed, and to take, and it did take and retain the skins of those seals, and in this way, and in this way only, the defendant received those 7,500 skins.

The circuit court made these conclusions of law:

"Eighteenth. The defendant did not present to the accounting officers of the Treas ury for their examination any claim for damages by reason of the losses alleged to have been incurred by the defendant by reason of the action of the United States in entering into the said convention or modus vivendi with Great Britain and limiting the catch of seals upon the said islands to 7,500; and such "In accordance with the power reserved to claim was not disallowed by the accounting him in said contract, the Secretary of the officers of the Treasury in whole or in part, Treasury at the commencement of the seal- and it was not proved to the satisfaction of[118] killing season for the year ending April 1, the court that the defendant was at the time 1894, fixed the compensation of the natives of the trial of this action in possession of upon the islands of St. Paul and St. George vouchers not before in its power to procure, to be paid to them by the defendant for kill- or that the defendant was prevented from ing the seals, sorting the skins, and loading exhibiting its said alleged claim at the Treasthem on board the defendant's steamer, at 50 ury by absence from the United States or by cents for each skin taken from the islands dur- unavoidable accident." ing the said season; and defendant paid to the natives said compensation, to wit, the sum of $3,750. "First. That the said defendant, having "Thirteenth. That 20,000 bachelor seals received the said 7,500 seal skins taken from could have been killed upon the said islands the said islands during the year 1893, is liable during the year 1893 in the customary way, to pay the said plaintiff therefor the said without injury to or diminution of the herd, and the said defendant would have taken that number had it been permitted so to do. "Fourteenth. That if the said defendant had been allowed to and had taken in the year 1893. under its said lease, 20,000 seal "Second. That by reason of the breach of 117]*skins, there would have been due to the said the said lease by the said plaintiff, prohibitplaintiff the $60,000 rental and for the per ing the said defendant from taking any seal capita of seven dollars and sixty two and skins during the year 1893, the said plainone half cents and the revenue tax of two dcl-tiff is liable to the said defendant for the said lars per skin, the sum of $192,500, making sum of $142,187.50, with interest thereon together the sum of $252.500-that is, twelve from the first day of December, 1894. dollars and sixty-two and one half cents for each seal skin taken; that for the 7,500 rereived by the said defendant, as above set forth, it owes to the said plaintiff the said sum of twelve dollars and sixty-two and one half cents apiece, amounting to the sum of $94,687.50.

"Fifteenth. The defendant could have sold 12,500 more seal skins if it had been allowed to take the same cn the said islands during the year 1893, at the average market price of twenty-four dollars for each skin; which for the said number of 12,500 which it might have taken, but was prevented from taking by the act of the government of the United States, would amount to $300,000; that for such 12,500 seal skins the said defendant would have been liable to pay, according to the terms of its lease if it had taken 20,000 seal skins during that year, the sum of twelve dollars and sixty-two and one half cents each, amounting to $157,812.50, which, being deducted from the price at which such

sum of $94,687.50, with interest thereon from the first day of April, 1894; and the said plaintiff is entitled to recover in this action said sum, with interest as aforesaid, from the said defendant.

"That on account of the same claim of the said defendant against the said plaintiff for damages for breach of the said lease not having been presented to and disallowed by the accounting officers of the Treasury, it cannot be allowed as a counterclaim or credit in this action, and the said counterclaim is therefore dismissed, but not on the merits thereof, and without prejudice to the right of the said defendant to enforce the same by any other proper legal proceeding."

Mr. James C. Carter for plint in error.

Mr. John W. Griggs, Attorney General, for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

By the act of July 27, 1868 (15 Stat. at L 240, chap. 273), the laws of the United States relating to customs, commerce, and navigation were extended over all the mainland, is

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