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local municipal authority, however much such intercourse between the United States and forregulations may interfere with the movements eign countries. No sort of trade, he adds, can be of commerce. But independently of such carried on between this country and another to measures the State may prescribe regulations which the power does not extend; and what is for the government of vessels whilst in its har-true of foreign commerce is also true of combors; it may provide for their anchorage or merce between States over the waters separat mooring, so as to prevent confusion and col- ing them. Ferries between one of the States lision; it may designate the wharves at which and a foreign country cannot be deemed, therethey shall discharge and receive their passengers fore, beyond the control of Congress under the and cargoes, and require their removal from commercial power. They are necessarily govthe wharves when not thus engaged, so as to erned by its legislation on the importation and make room for other vessels. It may appoint exportation of merchandise and the immigration officers to see that the regulations are carried of foreigners-that is, are subject to its reguout, and impose penalties for refusing to obey | lation in that respect; and if they are not bethe directions of such officers; and it may im-yond the control of the commercial power of pose a tax upon vessels, sufficient to meet the Congress, neither are ferries over waters sepaexpenses attendant upon the execution of the rating States. Congress has passed various regulations. The authority for establishing laws respecting such international and interstate regulations of this character is found in the ferries, the validity of which is not open to [215] right and duty of the supreme power of the question. It has provided that vessels used exState to provide for the safety, convenient use clusively as ferry-boats, carrying passengers, and undisturbed enjoyment of property within baggage and merchandise, shall not be required its limits; and charges incurred in enforcing the to enter and clear, nor shall their masters be reregulations may properly be considered as com- quired to present manifests, or to pay entrance pensation for the facilities thus furnished to the or clearance fees, or fees for receiving or cervessels. Vanderbilt v. Adams, 7 Cow., 351. tifying manifests; "but they shall, upon arrival in the United States, be required to report such baggage and merchandise to the proper officer of the customs, according to law" (R. S., § 2792); that the lights for ferry-boats shall be regulated by such rules as the Board of Supervising Inspectors of Steam Vessels shall prescribe (R. S., § 4233, Rule 7); that any foreign railroad company or corporation whose road enters the United States by means of a ferry or tug-boat, may own such boat, and that it shall be subject to no other or different restrictions or regulations in such employment than if owned by a citizen of the United States (R. S., § 4370); that the hull and boilers of every ferry-boat propelled by steam shall be inspected, and provisions of law for the better security of life, which may be applicable to them, shall, by regulations of the supervising inspectors, be required to be complied with before a certificate of inspection be granted; and that they shall not be navigated without a licensed engineer and a licensed pilot (R. S., § 4426).

[216]

Should such regulations interfere with the exercise of the commercial power of Congress, they may at any time be superseded by its action. It was not intended, however, by the grant to Congress to supersede or interfere with the power of the States to establish police regulations for the better protection and enjoyment of property. Sometimes, indeed, as remarked by Mr. Cooley, the line of distinction between what constitutes an interference with commerce and what is a legitimate police regulation is exceedingly dim and shadowy, and, he adds, "it is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions if it shall be deemed advisable; and that to whatever extent ground shall be covered by those directions, the exercise of state power is excluded. Congress may establish police regulations, as well as the States, confining their operations to the subjects over which it is given control by the Constitution; but as the general police power can better be exercised under the provisions of the local authority, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the National Congress, the regulations which are made by Congress do not often exclude the establishment of others by the State covering very many particulars. Cooley, Const. Lim., 732.

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The power of the States to regulate matters of internal police includes the establishment of ferries as well as the construction of roads and bridges. In Gibbons v. Ogden [9 Wheat., 203], Chief Justice Marshall said that laws respecting ferries, as well as inspection laws, quarantine laws, health laws regulating the internal commerce of the States, are component parts of an immense mass of legislation, embracing everything within the limits of a State not surrendered to the General Government; but in this language he plainly refers to ferries entirely within the State, and not to ferries transporting passengers and freight between the States and a foreign country; for the power vested in Congress, he says, comprehends every species of commercial

It is true that from the earliest period in the history of the government the States have authorized and regulated ferries not only over waters entirely within their limits, but over waters separating them; and it may be conceded that in many respects the States can more advantageously manage such interstate ferries than the General Government; and that the privilege of keeping a ferry, with a right to take toll for passengers and freight, is a franchise grantable by the State, to be exercised within such limits and under such regulations as may be required for the safety, comfort and convenience of the public. Still the fact remains that such a ferry is a means--and a necessary means of commercial intercourse between the States bordering on their dividing waters, and it must therefore be conducted without the imposition by the States of taxes or other burdens upon the commerce between them. Freedom from such imposition does not of course imply exemption from reasonable charges as compensation for the carriage of persons, in the way of tolls or fares, or from the ordinary taxation to which other property is subjected, any

[217]

e freedom of transportation on →→ such exemption. Reasonable the use of property either on water an interference with the freedom tation between the States secured mmercial power of Congress. Akuk, 95 U. S., 80 [Bk. 24, L. Parit Co. v. St. Louis, 100 U. S., 423 L.]; Ficksburg v. Tobin, Id., Packet Co. v. Catlettsburg, 105 26, L. ed., 1170]; TransportaFriburg, 107 U. S., 691 [Bk. 27,

implies exemption from charges as are imposed by way of comthe use of the property employed, afforded for its use, or as ordiOn the value of the property. legislation of the two States of ferries on waters dividing Se met and treated is not a question for consideration. Pennsylvania has ed to exercise its power of establating ferries across the DelaAny one, so far as her laws are is free, as we are informed, to estabferries as he may choose. No license ed from ferrykeepers. She merely right to designate the places of she does the places of landing for d in commerce. The question, ting the tax in the present case ed by any action of that State -res. However great her power, on her part can impose a tax on - of interstate commerce which is the transportation of persons and ater be the instrumentality by

below, by the appellee, to secure the convey.
ance to him of the legal title to certain prem-
ises alleged to be held in trust by the defendant.

The court below having entered a decree for
the complainant, upon an agreed statement of
facts, the defendant appealed to this court.

The facts of the case are sufficiently stated by the court.

Messrs. Delinzo A. Walden, in person, John M. Thurston, L. M. Colby and Alfred Hazlett, for appellant.

Mr. J. M. Woolworth, for appellee.

Mr. Justice Field delivered the opinion of the court:

[373]

The questions presented in this case are similar to those considered and decided in Van Wyck v. Knevals, reported in 106 U. S. Reports [bk.27, L. ed. 2011. By the Act of Congress of July 23, 1866 [14 Stat. at L., 210], there was granted to the State of Kansas, for the use and benefit of the [374] St. Joseph and Denver Railroad Company, in the construction of a railroad from Ellwood in that State to its junction with the Union Pacific Railroad or a branch thereof, not further west than the 100th meridian of west longitude, every alternate section of land designated by odd numbers, for ten sections in width on each side of the road, to the point of intersection. The grant was accompanied, however, with this qualification-that in case it should appear that the United States had, when the line or route of the road was "definitely fixed," sold any section or part thereof thus granted, or that the right of preemption or homestead settlement had attached to the same, or that it had been reserved by the United States for any purpose whatever, then it should be the duty of the Secretary of the Interior to cause an equal upon the case stated the tax quantity of other lands to be selected from the the Ferry Company was illegal odd sections nearest to those designated, in lieu The rudgment of the Supreme Court of the lands thus appropriated. The main ques* of Pennsylvania must therefore be tion here, as in the case mentioned, is, When and the can remanded for further pro- was the route of the road to be considered as w in confrmity with this opinion. "definitely fixed" so that the grant attached to McKenney, Clerk. Sup. Court, U. S. we held that the route must be considered as the adjoining sections. In the case mentioned

carmed on.

DELINZO A WALDEN, Appt.,

BERMAN W. KNEVALS.
See A. C. Reporter's ed., 373–376.)
to railway, attach when-route
y and when subsequent entry, void.

Art of July 23, 1968, the land-grant
Denver Railroad Company
sections when the route
and a map designat
the secretary of the Interior

try by one without notice
te to him, and the patent issued
one. Van Wyck v. Knevals,

"definitely fixed" when it had ceased to be the
subject of change at the volition of the compa-
ny; that until the map designating the route of
the road was filed with the Secretary of the In-
terior the company was at liberty to adopt
such a route as it might deem best after an ex-
amination of the ground had disclosed the ad-
vantages of different routes. But it was held
that when the route was adopted by the com-
pany and a map designating it was filed with
the Secretary of the Interior and accepted by

that officer, the route was established. In the
language of the Act, it was "definitely fixed"
and could not be the subject of further change
so as to affect the grant except by legislative
consent; and that no further action was re-
the route. It then became the duty of the Sec-
quired on the part of the company to establish
retary to withdraw the lands granted from
market, and the court said: "If he should neg-
lect this duty, the neglect would not impair the
rights of the company however prejudicial it
might prove to others. Its rights are not made
the Circuit Court of the Unit-dependent upon the issue of the Secretary's or-
for the Dirtnet of Nebraska.
der or upon notice of the withdrawal being
atha case was filed in the court given to the local land officers. Congress,

(No. 2201
Apr 1, lass Decided Apr. 13, 1885.

[375]

[376]

All other questions presented in this case ar fully considered in Van Wyck v. Knevals, an we see no ground to change the conclusion then reached. For the reasons there stated, t decree of the court how must therefore be aj firmed.

True copy. Test:

which possesses the absolute power of aliena- | wards created no interest in him, and the pater
tion of the public lands, has prescribed the issued upon that entry passed none.
period at which other parties than the grantee
named shall have the privilege of acquiring a
right to portions of the lands specified, and
neither the Secretary nor any other officer of
the Land Department can extend the period by
requiring something to be done subsequently,
and until done continuing the right of parties
to settle on the lands as previously." 106 U. S.,
366 [Bk. 28, L. ed. 203]. Since the decision of
that case the court, in R. Co. v. Dunmeyer, 113
U. S., 629 [Bk. 28, L. ed. 1122], has reconsid-
ered the question and come to the same con-
clusion, the receipt of the map in the land-of-
fice without objection being considered as
equivalent to its acceptance.

It appears from the agreed statement of facts that previous to the 21st of March, 1870, the engineers of the railway company surveyed and staked out upon the ground the proposed line of the road, made a topographical map of the country through which the line ran, showing the government surveys and the proposed route with reference to the section lines, and the towns, counties and rivers; that such map was on that day approved by the board of directors, and on the 25th of the same month was filed, together with a certificate of the approval indorsed thereon, with the Secretary of the Interior, who approved the same, and on the 28th of the same month transmitted it to the Commissioner of the General Land-Office, with directions to instruct the proper local land officers to withdraw from sale or other disposal all the odd-numbered sections falling within the limits of twenty miles on each side of the line

James H. McKenney, Clerk, Sup. Court, U. {

PENN NATIONAL BANK, Appt.,

v.

JAMES T. FURNESS, FRANCIS BRIN
LEY, Administrator of EDWARD L. BRIN
LEY, Deceased, et al.

(See S. C., Reporter's ed., 376-381.)

Partnership—neither retiring member nor of firm liable for loans to new firm used in pay ment of his capital and debts of old firm.

Certain members of a copartnership agreed t pay a retiring member a fixed amount as his cap tal, all erroneously believing the firm to be solvent plied the proceeds in payment of part of the capita The new firm borrowed on its own notes and ap so agreed upon and of some of the debts of the ol firm. Upon the failure of the new firm the holder of its notes cannot charge the old firm or the retin ing partner with the money loaned on said notes although it was thus applied. [No. 221.]

Argued Mar. 31 and Apr. 1, 1885. Decided Apr

1885.

of the route. On the 8th of April following the APPEAL from the Circuit Court of the Uni

ed States for the Eastern District of Penn sylvania.

The bill in this case was filed in the court be low by the appellant, to charge the defendant with certain moneys upon an accounting.

The court below having entered a decree dis missing the bill the complainant appealed to this court.

The facts of the case are stated by the court Mr. Nathan H. Sharpless, for appellant Mr. Charles Hart, for Furness et al., ap pellees.

Messrs. Samuel Dickson and E. G. Platt for Francis Brinley, appellee.

Mr Justice Field delivered the opinion of the court:

Commissioner transmitted by mail a copy of
the map to the register and receiver of the lo-
cal land office at Beatrice, in Nebraska, but it
was not received by them until the 15th of that
month. On the 8th of April, 1870, one Clark
Irvin entered the lands in question at the land
office in Beatrice, and on the 1st of November,
1871, a patent was issued to him. At the time
of his entry no instructions had been received
from the Land Department of the Government
that the lands were withdrawn from market,
and he made his entry without any actual
knowledge of the filing of the company's map
with the Secretary, or of his order to withdraw
the lands from market. Subsequently the com-
pany applied to the Land Department for a
patent of the lands, and tendered the necessary
fees and charges. The application was refused
on the ground that Irvin's right of entry had at-
tached to the lands and a patent for them had
been issued to him. The plaintiff deraigned title
from the railroad company, and the defendant
deraigned title from Irvin, by deed, for which he
paid a valuable consideration, without notice of
the claim of the plaintiff. It thus appears that
the defendant made his entry and therefore ac-
quired whatever rights he possesses after the
map of the company designating its route had It appears from the record that for many
been filed with the Secretary of the Interior, years preceding January 1, 1878, the firm of
March 25, 1870, and the route had thereby be- Furness, Brinley & Co. was engaged in busi
come definitely established. The title of the ness as auctioneers in the City of Philadelphia,
company to the adjoining odd sections was then and was in good standing and credit. It con
fixed. No rights could be initiated subsequent-sisted, up to October 1, 1878, of James T.
ly which could affect that title. The entry of Furness, Edward L. Brinley, Joshua P. Ash,
the defendant being on the 8th of April after- William H. Ash, Henry Day and Dawes E. Fur

This is a suit by the Penn National Bank to charge the firm of Furness, Brinley & Co., o Philadelphia, with moneys obtained from the Bank by the firm of Furness, Ash & Co., of that city, in a discount of its paper, and used in payment of the debts of the first firm; and also to charge the defendant Edward L. Brin ley with the moneys thus obtained by Furness, Ash & Co., which were used to pay its debt to him.

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at time Henry Day and Dawes E. Fur-bers of the copartnership agreed to pay another from the firm. Soon afterwards member a fixed amount as his capital, on his Brinley expressed a desire also to withdrawal from the concern, all parties believ An agreement was accordingly ing at the time in the firm's solvent condition. to between him and James T. Furness The member accordingly withdraws and a new P. Ash to the effect that he should partnership is thereupon formed between the ement to take place as of the first remaining members. The new firm, on its own bat not to be announced until responsibility, borrows money on its notes from January, 1878, and that he was to different parties-among others from the plaintais capital in the firm, $25,000, to iff-who were acquainted with its members, and Donthly payments of $5,000, com- pays part of the capital as agreed upon to the the first of December, 1877. For retiring member and also some of the debts of of this amount James T. Furness the old firm. Soon afterwards the new firm P. Ash made themselves individu- fails, and the plaintiff Bank now seeks to charge On the first of January, 1878, Brin- the old firm with the moneys thus loaned, was accordingly announced, which were used to pay its debts, and the retirarm was then formed under the ing member for the amount due to him. We Fress Ash & Co., consisting of are clear that this cannot be done. The disJoshua P. Ash and William count was a transaction entirely between the cue the same business at the new firm and the plaintiff. No credit was given as successors of Furness, Brinley & to the old firm or to the retired partner. It was - rm existed only till the 15th of not a matter between the Bank and either of when it failed. During its them. It is simply a common instance of ined large discounts of its credit given to an insolvent firm without knowlPen National Bank and from edge by the lender, of its insolvency; and in the and the money derived from them course of business the loss is to be ascribed to among other purposes, to pay overconfidence in the firm's responsibility, of $5,000 each month to Ed- whilst in ignorance of its true condition. ty, the retired partner. Of the $30,000 were thus paid. ent of Edward L. Brinley from te formation of the new firm, tion of the old firm was unembers; but upon an examinabas after the failure of the new that the old firm was in fact rst of July, 1877, and on the Jary, 1878. The bill in the ares that this agreement for the Brinley and the payment to him sade with knowledge of the the old firm and upon a corrupt en the partners to enable Briny withdraw his capital from cape liability for its debts. It at the discounts of the paper of ere promoted by false stateSe part of Edward L. Brinley to inwho discounted the paper; and re made to carry out the corrupt All the allegations of fraud explicitly and emphatically ers of the defendants, and sustained by the proofs. Alof the old firm for the last e was loosely conducted, test evidence that any of ***Perhaps James G. Furness, its insolvent condition. He ed its condition, but if so he to himself, in no way intithe other members of the firm. that any other member knew | of the partnership, and it Its clear that they believed bly sound, and not only all its debts but that there It also appears that the time it discounted the pa&Co, knew who composed entirely upon its solvency

The old firm remains liable for its debts contracted whilst it was in existence, and unpaid, and the retired member, as a partner in that firm, is liable with the other partners; and it seems from the record, that since the failure of the new firm he has himself discharged outstand ing liabilities of the old firm amounting to over $37,000, exceeding by about $17,000 the sums paid to him by the new firm. The new firm is alone liable for the dests of its own contracting. They cannot be transferred to others with whom the plaintiff never dealt.

The case is different from those where a retiring partner draws out a portion of the capital of the concern with an agreement that the other members will pay the debts, and it turns out that the firm was at the time insolvent. There the retiring party will be held to restore the capital, so far as may be necessary to pay the debts of the concern existing at the time, and this, too, whether there was any fraud designed in the transaction or not. He cannot be permitted to remove any portion of the capital of the insolvent concern beyond the reach of its existing creditors, if necessary to satisfy their demands, nor, if there be any scheme of future fraud in the removal, beyond the reach of its future creditors. Here the defendant Brinley has paid, as already mentioned, in the discharge of the debts of the old firm, several thousand dollars more than he received as his capital in that concern from the new firm. There has been no attempt at any time on his part to avoid the liabilities falling upon him as one of the partners in that firm.

The case of Anderson v. Maltby, 2 Ves. Jr., 244, to which counsel of appellant refers as a beacon-light for nearly a hundred years in this branch of the law, differs from the one at bar in essential particulars. There, upon the retirement of a partner in the firm of Maltby & Sons, a fictitious account was made up, showing indebtedness to him of several thousand pou which was entered upon the books of the

, stands thus: Certain mem- This was done witho" "ny examination

[380]

[381]

[381]

IN ERROR to the Supreme Court of the Stat

of California.

The petition in this case was filed in th Third District Court, County of Alameda California, by the plaintiff in error, to hold th defendant, who had the legal title to certain premises, to be a trustee for the plaintiff.

The court sustained a demurrer and rendered judgment for the defendant. This judgmen having been affirmed on appeal, by the cour below, the complainant sued out this writ of error.

books at the time, or valuation of the property | claims under the invalid selection made by th
State.
of the firm, or calculation of its debts, and no
The case of Huffy v. Doyle, bk. 23, p. 975, affirme
public notice was given of the retirement of the
[No. 703.]
partner except by changing the title of the firm Submitted Jan. 5, 1885. Decided Apr. 13, 1885
in the books of the Bank of England, and other
books, from Maltby & Sons to Maltby & Son,
The other members continued the partnership
and failed. On a bill filed by its assignee, an
account was decreed in favor of the new part-
nership against the retiring partner for the mon-
eys thus received, owing to the circumstances
of fraud attending the transaction. In decid-
ing the case the Chancellor, after observing that
when partners make up an account of profits
which do not exist it is colorable, said: "If at
the close of the former partnership he (the re-
tiring partner) was bona fide entitled, all the
payments were just and legal; if he was not
bona fide entitled to any demand on account of
the former partnership as against the two about
to form a new partnership, but that, to the
knowledge and conviction of all three, was mere
color and not a real but a nominal transaction,
all the payments were made not merely with-
out consideration but upon a bad considera-
tion, and such as a court of equity, and, I think,
a court of law, equally, ought to condemn."
page 256. This is nothing more than declaring
that a suit will lie by the assignee of a bankrupt
concern to compel a retired partner to account
for moneys paid to him by the firm upon a
fraudulent claim.

In the case at bar there was no fraudulent claim advanced. The amount to be paid Brinley was for the capital put by him into the firm of Furness, Brinley & Co., all the partners, except perhaps one of them. supposing at the time of his retirement that the firm was not ouly solvent, but in possession of a large surplus; and the plaintiff is neither the new company nor its assignee, but the Bank which lent the money to that company upon its supposed solvency, and now seeks to charge the parties to whom the company paid it in discharge of its obligations. Equity does not follow money thus lent into the hands of persons to whom it has been paid in discharge of obligations to them and with whom the lender had no relations.

Decree affirmed.

True copy. Test:

Messrs. Edward J. Pringle and H. F Crane, for plaintiff in error.

Mr. A. Chester, for defendant in error.

Mr. Justice Miller delivered the opinion of the court:

This is a writ of error to the Supreme Cour of California.

The case relates to the title to lands in tha State and was decided on a demurrer, which was sustained, to a petition of plaintiff in er ror. This petition was in the nature of a bill in chancery seeking to hold the defendant, who had the legal title to the land, by a patent from the United States, to be a trustee for the plaint iff, on the ground that in a contest between the two before the Land Department the officer of that department had, by the decision in favor of the defendant, deprived plaintiff of his superior right by a misconstruction of the law.

The land in controversy was within the exterior limits of a claim under a Mexican grant. The validity of this grant was established by proceedings under the Act of Congress on tha subject. But when the survey was made and finally confirmed which ascertained the locali ty of this grant, it was found that the land in suit was not within it. This fact was estab lished on June 6, 1871, by the confirmation of the final survey of that grant.

On July 1, 1871, the map of the congression al survey of the township, which included the land and which was completed by subdivision

James H. McKenney, Clerk, Sup. Court, U. S. into sections and quarter sections, was filed in

JOSE AURRECOECHEA, Plff. in Err.,

JOSEPH L. BANGS, Admr. of Amos S.
BANGS, Deceased.

(See S. C. Reporter's ed., 381-387.)
Public lands-suit to have legal holder declared
to be a trustee-grant of school lands to Cali-
fornia-Act of July 23, 1866.

1. Under the Act of July 23, 1866, passed to rem-
edy the effects of the unauthorized survey and se-
lection, by the State of California, of school lands
granted by the Act of March 3, 1853, land claimed
to be within a valid Mexican grant is within the
excepting clause of section 1.

2. After the survey, the land thus restored to the

public domain is open to preemption, and the pre-
emptor acquire a valid title as against one who

the local land office of the district of San Francisco.

Bangs, the defendant, who had been residing on the land for some time, made and filed with the register and receiver his declaratory statement asserting an intention to preempt the land June 26, 1871. Under this claim the defendant, having complied with the require ments of law, received the patent of which plaintiff claims the benefit.

10

Plaintiff's superior equity, as he sets it out in his petition, arises under the Act of Congress of March 3, 1853, granting to the State of California every sixteenth and thirty-sixth section of the public lands for school purposes. Stat. at L., 244. As none of the public lands in California had been surveyed, it could not then be known where these school sections would be located; and in view of the fact that tions before they could be ascertained by sur many settlements would be made on those secvey, the seventh section of the Act, while vali

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