decree, in accordance with the settled practice. It is only necessary to refer to the case of Insurance Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. Rep. 193, where it was said, citing numerous cases: "It was settled at a very early day that the facts on which the jurisdiction of the circuit court rest must, in some form, appear on the face of the record of all suits prosecuted before them;" and that "it is error for a court to proceed without its jurisdiction is shown." It was also said in the same case, citing Morgan v. Gay, 19 Wall. 81, and Robertson v. Cease, 97 U. S. 646, that, if the party in regard to whom the necessary citizenship was not shown actually possessed such citizenship, the record could not be amended in this court so as to show the fact, but that the court below might, in its discretion, allow that to be done when the case should get back there. In accordance with these views the decree of the circuit court is reversed, with costs, and the case is remanded to that court for further proceedings.

DEWOLF et al. v. HAYS.

(April 9, 1888.)


Plaintiff in 1872 purchased from D. an undivided half of a tract of land for $23,425, paying part cash, and giving her note and a mortgage on the land for the balance, $10,135. In 1876 she brought an action to rescind the purchase on the ground of false representations as to the value of the land; and shortly afterwards foreclosure proceedings were begun by the assignee of the mortgage. While both actions were pending, plaintiff's husband, who was in ill health, and extremely nervous and sensitive, strongly advised her to settle all the matters in dispute, and thereby avoid the danger of expensive litigation; whereupon, with the advice and approval of her counsel, she dismissed her action, received back her note and mortgage, procured D. to pay debts of hers to the amount of $1,200, and executed to the assignee of the mortgage a deed of the land, the value of the undivided half of which did not at that time exceed the amount of her mortgage. The land was subsequently reconveyed to D. by the assignee, who had acted merely as his agent, and by him to B. În a suit by plaintiff, in 1884, against D. and B., to set aside the latter conveyance, and compel a conveyance to her in pursuance of the original purchase, on the ground that her settlement and deed were made under the influence of her husband, and were not her free and voluntary act, held, that the above facts did not support her claim.

Appeal from the Circuit Court of the United States for the District of California.

This was a bill in equity, filed May 7, 1884, by Florence W. Hays, the widow of John J. Hays, against Frank E. De Wolf and wife and Horace M. Barnes, to set aside a deed of real estate from De Wolf and wife to Barnes, and to compel a conveyance to the plaintiff. Upon a hearing on pleadings and proofs, the circuit court entered a decree for the plaintiff, and the defendants appealed. The case is stated in the opinion.

Benj. F. Thurston, for appellants. W. Hallett Phillips and Ben Morgan, for appellee.

GRAY, J. The question upon which the decision of this case turns is one of fact; and upon full consideration of the evidence, we are unable to adopt the conclusion of the circuit court. Hays and wife and DeWolf and wife, connections by marriage, and intimate friends, took up their residence in California in 1871. Hays was in ill health, and DeWolf had the confidence of Hays and wife, and often transacted business for them. In 1872, DeWolf and wife owned a ranch of 4,160 acres in Fresno county, Cal., and at his suggestion Mrs. Hays purchased an undivided half of the tract for the price of $23,425, part of which she paid out of her separate funds, and for the rest of which she gave them her promissory note for $10,135, secured by mortgage of the land. It is alleged in the bill, and shown by the evidence, that afterwards DeWolf and wife, without consideration, assigned the note and mort

gage to one Haggin, and he commenced an action of foreclosure, which was dismissed upon the plaintiff's executing and delivering to Haggin a deed of the land; that in 1877 tne same was conveyed, without consideration, by Haggin to one Dimmock, and by him to Mrs. DeWolf; and that in all these transactions Haggin, as well as Dimmock, acted as agent of the DeWolfs. The bill alleges, and the answers deny, that the plaintiff executed and delivered the deed to Haggin "at the urgent solicitation of her husband, who was at the time an invalid, unable to attend to business, and who importuned the plaintiff to make said deed, urging as a reason that he was unwilling to die and leave her involved in a litigation which might result in her pecuniary ruin, and the plaintiff, yielding to his entreaties and persuasions, consented to and did make said deed;" and that De Wolf and wife, at the time of the execution of that deed, "well knew that the same was made by the plaintiff under the influence of her said husband and because of his persuasion and solicitation, and was not her free and voluntary act." In March, 1884, De Wolf and wife conveyed the land to Barnes. The bill alleges that this conveyance was made "for the purpose of covering up and concealing their title to the same, the better to cheat and defraud the plaintiff." The answers deny that it was made with that or any other fraudulent or wrongful purpose.

It appears by the evidence that, at and before the time of the making of the deed to Haggin, Mrs. Hays and her husband had very little other property, while Haggin and DeWolf were wealthy; and that her husband was very ill of consumption, complicated with other diseases, (of which he died a year afterwards,) and was, as his attending physician testified, "extremely nervous and sensitive, and easily affected by almost everything surrounding him," and less fit to transact business than he had previously been. Mrs. Hays testifies that she was induced to make the deed by the persuasions and and entreaties of her husband, who was greatly worried by the fear of leaving her without means in a network of legal trouble. But the other circumstances, preceding and attending the execution of the deed, which are clearly established by the evidence, give a different color to the matter. In May, 1876, Mrs. Hays brought an action in a court of the state against DeWolf and wife, alleging that she had been induced to make her original purchase by their fraudulent representations as to the value of the property, and demanding damages for the fraud, as well as that the note and mortgage might be declared void. Haggin's action to foreclose the mortgage was brought in November, 1876.

Mr. Rearden, a counselor at law, whose integrity and veracity are not impugned, and who had long been acquainted with Hays and wife and their affairs, and was one of her counsel, testifies that while those two suits were pending the question of a compromise and settlement was discussed between himself and the opposing counsel, by which of them first suggested he did not remember; that he had conversations on the subject at his office in San Francisco with Hays alone, and afterwards with him in the presence of his wife at their residence in Redwood; that "they stated a number of facts which, if proved, might possibly be defenses to the note and mortgage;" that the reasons Hays gave him for wanting to settle the matter were that "they were practically without means to carry on any extensive litigation, which seemed to be opening up, and his health was bad, and he did not want to risk his labor and time on the great uncertainties of this business;" and that he carefully suggested to Hays various items of the possible expenses of the litigation, and, among other things, that one of the pending suits "would possibly cost him all the way from $1,500 to $2,500." It was after Hays had talked with Rearden that, as Mrs. Hays testifies, he entreated her and she consented "to wipe out the whole thing,-the DeWolf suit and the Haggin suit and everything,—if they could just get out of it, and not continue in it at all." Mrs. Hays further testifies that, at Rearden's request, she went without her

husband to San Francisco, "to see the DeWolfs in relation to this matter of the deed and the suit;" and negotiations were had at Rearden's office between Mrs. Hays and Rearden on the one side, and De Wolf and his counsel on the other, lasting a great part of two days, before a settlement was effected. The only evidence of any knowledge on the part of the defendants that Mrs. Hays was acting under the influence of her husband is her testimony that she then told DeWolf "that she wanted to wipe out the whole thing on account of her husband's ill health, and that she did it because it was a wife's duty; in other words, to do what he told her to do." The terms of the settlement, as then agreed upon, and some days afterwards carried out, were that the mortgage note was delivered up to Mrs. Hays, two debts of hers of about $1,200 were paid by DeWolf, and Hays and wife executed the deed conveying the land to Haggin, and a deed of release of all claims against the DeWolfs. These deeds were dated January 16, 1877; and annexed to each of them was a certificate of a notary public to its acknowledgment by Hays and wife, and that she, upon being examined apart from her husband, and made acquainted with its contents, acknowledged her execution, and did not wish to retract it. The plaintiff, in her present bill, filed in 1884, does not allege any fraud or undue influence in the original transaction in 1872, by which she purchased the property, and gave the note and mortgage for part of the price; but, on the contrary, claims title under that purchase, and offers to pay the amount of the mortgage note and interest, deducting any rents and profits received by the defendants. The uncontradicted testimony of well informed witnesses proves that at the time of the settlement in 1877 the value of the undivided half of the land did not exceed the amount of the mortgage, although it has since greatly increased because of the introduction of irrigation. In the state of facts then existing, the settlement appears to have been a prudent and fair one, made deliberately and under advice of competent counsel. Independently of any question of laches, therefore, no ground is shown for maintaining this suit.

Decree reversed, and case remanded to the circuit court, with directions to dismiss the bill.


(April 9, 1888.)

1. CONSTITUTIONAL LAW-DUE PROCESS OF LAW-PENNSYLVANIA OLEOMARGARINE ACT. Act. Pa. May 21, 1885, provides "that no person, firm, or corporate body shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk, or cream from the same, * * * nor shall sell, or offer for sale, or have in his, her, or their possession, with intent to sell, the same as an article of food." The act declares void all contracts made in violation of it, and subjects the offender to a penalty recoverable in an action of debt, and also to a criminal prosecution. Held, that the act is a valid exercise of the police power, and does not deprive any one of rights of liberty or property without due process of law, nor of the equal protection of the laws, as guarantied by the fourteenth amendment of the federal constitution. 2. SAME TAKING PROPERTY WITHOUT COMPENSATION.

Nor is the act in conflict with the fourteenth amendment on the ground that it deprives the citizen of his property acquired prior to its passage, without compensation. Following Mugler v. Kansas, ante, 273.

In Error to the Supreme Court of the State of Pennsylvania.

D. T. Watson, for plaintiff in error. Wayne MacVeagh and W. S. Kirkpatrick, Atty. Gen., for defendant in error.

HARLAN, J. This writ of error brings up for review a judgment of the supreme court of Pennsylvania, sustaining the validity of a statute of that

1 Affirming 7 Atl. Rep. 913.

commonwealth relating to the manufacture and sale of what is commonly. called "oleomargarine butter." That judgment, the plaintiff in error contends, denies to him certain rights and privileges specially claimed under the fourteenth amendment to the constitution of the United States. By acts of the general assembly of Pennsylvania, one approved May 22, 1878, and entitled "An act to prevent deception in the sale of butter and cheese," and the other approved May 24, 1883, and entitled "An act for the protection of dairymen, and to prevent deception in sales of butter and cheese," provision was made for the stamping, branding, or marking, in a prescribed mode, manufactured articles or substances in semblance or imitation of butter or cheese, not the legitimate product of the dairy, and not made exclusively of milk or cream, but into which oil, lard, or fat, not produced from milk or cream, entered as a component part, or into which melted butter, or any oil thereof, had been introduced to take the place of cream. Laws Pa. 1878, p. 87; 1883, p. 43. But this legislation, we presume, failed to accomplish the objects intended by the legislature. For, by a subsequent act approved May 21, 1885, and which took effect July 1, 1885, entitled "An act for the protection of the public health, and to prevent adulteration of dairy products, and fraud in the sale thereof," it was provided, among other things, as follows:

"Section 1. That no person, firm, or corporate body shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell, or offer for sale, or have in his, her, or their possession, with intent to sell, the same as an article of food.

"Sec. 2. Every sale of such article or substance which is prohibited by the first section of this act, made after this act shall take effect, is hereby declared to be unlawful and void, and no action shall be maintained in any of the courts in this state to recover upon any contract for the sale of any such article or substance.

"Sec. 3. Every person, company, firm, or corporate body who shall manufacture, sell, or offer or expose for sale, or have in his, her, or their possession with intent to sell, any substance the manufacture and sale of which is prohibited by the first section of this act, shall, for every such offense, forfeit and pay the sum of one hundred dollars, which shall be recoverable, with costs, by any person suing in the name of the commonwealth, as debts of like amount are by law recoverable; one-half of which sum, when so recovered, shall be paid to the proper county treasurer for the use of the county in which suit is brought, and the other half to the person or persons at whose instance such a suit shall or may be commenced and prosecuted to recovery.

"Sec. 4. Every person who violates the provision of the first section of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars, nor more than three hundred, or by imprisonment in the county jail for not less than ten nor more than thirty days, or both such fine and imprisonment, for the first offense, and imprisonment for one year for every subsequent offense."

The plaintiff in error was indicted, under the last statute, in the court of quarter sessions of the peace in Dauphin county, Pa. The charge in the first count of the indictment is that he unlawfully sold, "as an article of food, two cases, containing five pounds each, of an article designed to take the place of butter produced from pure, unadulterated milk, or cream from milk, the said article so sold, as aforesaid, being an article manufactured out of certain oleaginous substances, and compounds of the same, other than that produced from unadulterated milk, or cream from milk, and said article so sold, as aforesaid, being an imitation butter." In the second count the charge is that he unlawfully had in his possession, "with intent to sell the same, as an arv.8s.c.-63

ticle of food, a quantity, viz., one hundred pounds, of imitation butter, designed to take the place of butter produced from pure, unadulterated milk, or cream from the same, manufactured out of certain oleaginous substances, or compounds of the same, other than that produced from milk, or cream from the same." It was agreed, for the purposes of the trial, that the defendant on July 10, 1885, in the city of Harrisburg, sold to the prosecuting witness, as an article of food, two original packages of the kind described in the first count; that such packages were sold and bought as "butterine," and not as butter produced from pure, unadulterated milk, or cream from unadulterated milk; and that each of said packages was, at the time of sale, marked with the words, "Oleomargarine Butter," upon the lid and side in a straight line, in Roman letters half an inch long. It was also agreed that the defendant had in his possession 100 pounds of the same article, with intent to sell it as an article of food. This was the case made by the commonwealth. The defendant then offered to prove by Prof. Hugo Blanck that he saw manufactured the article sold to the prosecuting witness; that it was made from pure animal fats; that the process of manufacture was clean and wholesome, the article containing the same elements as dairy butter, the only difference between them being that the manufactured article contained a smaller proportion of the fatty substance known as "butterine;" that this butterine existed in dairy butter in the proportion of from 3 to 7 per cent., and in the manufactured article in a smaller proportion, and was increased in the latter by the introduction of milk and cream; that, this having been done, the article contained all the elements of butter produced from pure, unadulterated milk, or cream from the same, except that the percentage of butterine was slightly smaller; that the only effect of butterine was to give flavor to the butter, and that it had nothing to do with its wholesomeness; that the oleaginous substances in the manufactured article were substantially identical with those produced from milk or cream; and that the article sold to the prosecuting witness was a wholesome and nutritious article of food, in all respects as wholesome as butter produced from pure, unadulterated milk, or cream from unadulterated milk. The defendant also offered to prove that he was engaged in the grocery and provision business in the city of Harrisburg, and that the article sold by him was part of a large and valuable quantity manufactured prior to the 21st of May, 1885, in accordance with the laws of this commonwealth relating to the manufacture and sale of said article, and so sold by him; that for the purpose of prosecuting that business large investments were made by him in the purchase of suitable real estate, in the erection of proper buildings, and in the purchase of the necessary machinery and ingredients; that in his traffic in said article he made large profits; and, if prevented from continuing it, the value of his property employed therein would be entirely lost, and he be deprived of the means of livelihood. To each offer the commonwealth objected upon the ground that the evidence proposed to be introduced was immaterial and irrelevant. The purpose of these offers of proof was avowed to be (1) to show that the article sold was a new invention, not an adulteration of dairy products, nor injurious to the public health, but wholesome and nutritious as an article of food, and that its manufacture and sale were in conformity to the acts of May 22, 1878, and May 24, 1883; (2) to show that the statute upon which the prosecution was founded was unconstitutional, as not a lawful exercise of police power, and also because it deprived the defendant of the lawful use "of his property, liberty, and faculties, and destroys his property without making compensation." The court sustained the objection to each offer, and excluded the evidence. An exception to that ruling was duly taken by the defendant. A verdict of guilty having been returned, and motions in arrest of judgment and for a new trial having been overruled, the defendant was adjudged to pay a fine of $100 and costs of prosecution, or give bail to pay the same in 10 days, and be in custody until the

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