Dissenting Opinion: Brown, Harlan, JJ.

England and in this country to be longer a question of doubt, although the practice was formerly the other way. There is no disagreement upon this point. That there must be a common danger in which ship, cargo, and crew all participate; that the sacrifice must be necessary, or at least made in the exercise of a reasonable judgment that it was necessary; and that it must be voluntary, is also admitted. But whether the water be pumped in by the crew, or by a fire-engine stationed on shore, is quite immaterial, as was held in Nelson v. Belmont, 5 Duer, 10; S. C. 21 N. Y. 36; Gregory v. Orrall, 8 Fed. Rep. 287; The Roanoke, 46 Fed. Rep. 297; S. C. 53 Fed. Rep. 270, and 59 Fed. Rep. 161; Stewart v. West India &c. Steamship Co., L. R. 8 Q. B. 88.

But if the master be engaged in extinguishing a fire by pumping in water, and the damage thereby done subjects the property saved to a general average contribution, I fail to see why he should lose his right to such contribution, if the port authorities, acting under a local ordinance, interfere and take possession of the vessel, and do exactly what he was engaged in doing, but more efficiently and expeditiously. It was for the interest of all parties that the fire should be extinguished as quickly as possible, and if the port authorities had more efficient means for such purposes than the master, and therefore interfered to assist him, it seems to me he should not lose his right to contribution. His loss was no greater than it would have been, if the port authorities had not interfered. The damage to the cargo was evidently much less, so that the shippers were obviously benefited by such interference. Under such circumstances it appears highly inequitable that they should set up a defence which they would not have been able to assert, if their loss had been greater.

If it be true, as assumed in the opinion of the court, that the right to a general average contribution arises, not from the contract of the parties, but from operation of law and upon principles of natural justice, it seems an anomaly to say that one who is in possession of the vessel by act of law is not in a position to make a sacrifice, out of which a right of contribution shall arise. The consequences of the rule an

Dissenting Opinion: Brown, Harlan, JJ.

nounced by the court might, under certain circumstances, be so inequitable as at once to challenge its soundness. Suppose, for instance, the master had nearly succeeded in extinguishing the fire before the port authorities had arrived, and, against his protest, had assumed charge of the vessel. Under such circumstances, he would clearly be entitled to contribution from such of the cargo as he had already saved, but how would it be possible to distinguish between that and such as might have been saved after the port authorities took possession? In saying that the sacrifice must have been made by the act of the master, the law evidently intends not that the word "master" shall be taken in its technical sense, but that the act must be that of one in authority, and must be the result of the judgment of some one competent to judge and with authority to act, as distinguished from the hasty and arbitrary or timorous action of the crew or of a passenger, who have no authority to bind the vessel.

Suppose, for instance, a vessel and cargo be discovered abandoned at sea and derelict, and be taken possession of by salvors, who, for the purpose of saving the property, throw overboard a portion of the cargo. Can it be possible that the value of the property so jettisoned should not be estimated in the salvage expenses, and be contributed for by the property thus saved? There can be no question that, under such circumstances, the salving vessel would be entitled to remuneration, but the logical result of the opinion of the court in this case is that the owner of the property thrown overboard would lose its entire value, because the salvors are not agents of the owners of the vessel, and are strangers to the adventure.

In this case there is no finding that the port authorities took charge of the fire against the will of the master or mate, but upon his return on board the master found them in charge. There is no finding that he made objection to this. The only disagreement between him and the port authorities seemed to arise from the fact that the master, after having "removed 552 bales of jute from the barque, desired to remove more; but the port authorities objected and forbade it,

Syllabus.

because of the danger of increasing the fire." But this was evidently a disagreement as to a minor particular, and there is an express finding that "the measures taken by the mate before the port authorities took charge of the ship, and those subsequently taken by the port authorities, were the best available to extinguish the fire and to save greater loss upon the cargo." There seems to have been no objection at the time to the port authorities moving the ship and putting her aground, although the master subsequently incorporated an objection to such action in his protest. In fact, the District Judge states that "the master did not object to the scuttling," and that the chief difference between them was with respect to keeping the hatches open longer for the purpose of removing more of the cargo, to which the officials objected, in consequence of the increased draft of air serving as fuel to the flames.

The opinion of the court tends, in every such emergency, to put the master and local authorities in antagonism, to give rise to unseemly conflicts between them, and to prevent the master from availing himself of their superior facilities for extinguishing fires. It seems to me there is no distinction in principle between a sacrifice made by a master and one made by authority of law, provided the common safety of the ship and cargo be the object of their action.

I am authorized to state that MR. JUSTICE HARLAN concurs in this dissent.

LUTCHER v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS.

No. 271. Submitted April 5, 1895. -Decided April 8, 1895.

For the reasons stated in the opinion of the court it is held, (1) that this court has no jurisdiction to review the judgment of the Circuit Court in this case, and (2) that the writ of error was brought too late.

Opinion of the Court.

THE case is stated in the opinion.

Mr. J. L. Bradford for plaintiffs in error.

Mr. Solicitor General for defendants in error.

THE CHIEF JUSTICE: This was an action brought by the United States in the Circuit Court of the United States for the Eastern District of Texas against the firm of Lutcher & Moore of that district, doing a milling and manufacturing business at Orange, Texas, to recover damages for cutting, carrying away, and converting to their own use certain timber, the property of the United States. Judgment was rendered in favor of the United States March 11, 1891. April 3, 1891, a writ of error was allowed from the Circuit Court of Appeals for the Fifth Circuit. The record does not disclose what proceedings were had thereon in that court. July 2, 1891, a writ of error from this court was sued out and filed, the bond thereon being approved and the citation signed July 10, 1891. The petition for the allowance of the writ states that the Circuit Court of Appeals refused to allow the cause to be docketed and the transcript of record to be filed therein, on the ground that the cause should have been taken to this court and not to that court. But the last clause of section six of the Judiciary Act of March 3, 1891, refers to the Circuit Court of Appeals and not to the Circuit Court, and this writ of error is to the Circuit Court and not to the Circuit Court of Appeals, and does not, therefore, reach the proceedings in the latter court. We perceive no ground on which this court has jurisdiction to review the judgment of the Circuit Court on this writ, and, moreover, it was brought too late. Cincinnati Safe and Lock Co. v. Grand Rapids Deposit Co., 146 U. S. 54. Either objection is fatal.

Writ of error dismissed.

Syllabus.

POLLOCK v.

FARMERS' LOAN AND TRUST
COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

་

No. 893. Argued March 7, 8, 11, 12, 18, 1895. — Decided April 8, 1895.

A court of equity has jurisdiction to prevent a threatened breach of trust in the misapplication or diversion of the funds of a corporation by illegal payments out of its capital or profits.

Such a bill being filed by a stockholder to prevent a trust company from voluntarily making returns for the imposition and payment of a tax claimed to be unconstitutional, and on the further ground of threatened multiplicity of suits and irreparable injury, and the objection of adequate remedy at law not having been raised below or in this court, and the question of jurisdiction having been waived by the United States, so far as it was within its power to do so, and the relief sought being to prevent the voluntary action of the trust company and not in respect to the assessment and collection of the tax, the court will proceed to judgment on the merits.

The doctrine of stare decisis is a salutary one, and is to be adhered to on proper occasions, in respect of decisions directly upon points in issue; but this court should not extend any decision upon a constitutional question, if it is convinced that error in principle might supervene. In the cases referred to in the opinion of the court in this case, beginning with Hylton v. United States, 3 Dall. 171, (February Term, 1796,) and ending with Springer v. United States, 102 U. S. 586, (October Term, 1880,) taxes on land are conceded to be direct taxes, and in none of them is it determined that a tax on rent or income derived from land is not a tax on land.

A tax on the rents or income of real estate is a direct tax, within the meaning of that term as used in the Constitution of the United States. A tax upon income derived from the interest of bonds issued by a municipal corporation is a tax upon the power of the State and its instrumentalities to borrow money, and is consequently repugnant to the Constitution of the United States.

So much of the act" to reduce taxation, to provide revenue for the government, and for other purposes," 28 Stat. 509, c. 349, as provides for levying taxes upon rents or income derived from real estate, or from the interest on municipal bonds, is repugnant to the Constitution of the United States and is invalid.

Upon each of the other questions argued at the bar, to wit: 1, Whether the void provision as to rents and income from real estate invalidates