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justifying the findings made by the court concerning fraudulent purpose, injury to property, deception of the public, etc.

On examining the evidence we are compelled to say we do not think it has any tendency to prove an intent on the part of the defendant order by the adoption of the designation given to their body or the use of the emblems, insignia, etc., employed to make it appear that their order and that of the complainant is one and the same, or that it tends to show that the use of the corporate name or the distinctive words Knights of Pythias and the emblems, etc., of that order operated in any degree to deceive the public or to work pecuniary damage to the complainant order within or without the State of Georgia. But strong as are our convictions as to these subjects, we prefer not to rest our conclusion upon them, but rather to place the decree of reversal which we shall render, upon the application to the facts of the well-settled doctrine on the subject of laches. As we have observed, the court below in considering the facts on that subject made no reference to the evidence, but assumed that it must be that the findings of the jury were sustained by evidence and indulged in the assumption that it was natural to suppose that the long-continued existence and development of the defendant order had not been interfered with by the complainant corporation because not known until the defendants came into the open by making an application to be made a domestic corporation of Georgia. The facts, however, which we have stated concerning the establishment of the order, its lodgment in Georgia, its vast expansion, its years of duration and its volume of transactions were not disputed in any particular whatever, and therefore leave no room for any other but the legal conclusion of laches. This, we think, in the most conclusive way demonstrates the violation of the elementary principles of equity which would result from the enforcement of the in

225 U. S.

HOLMES and LURTON, JJ., dissenting.

junction which the court awarded. And the conclusion just stated renders it unnecessary to point out the incompatibility between the holding on the one hand that there was injury to the property rights of the plaintiff corporation and a deceit of the public arising from the existence of the defendant order and its activities, and the holding on the other hand that laches cannot be imputed to the plaintiff corporation as a result of its inaction during the many years in which the defendant corporation existed and exercised its attributes and functions, because the wrongs thus being publicly inflicted could not be presumed to have been known until the defendant order came out into the open by the application for incorporation under the law of the State of Georgia.

The judgment of the Supreme Court of Georgia is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

MR. JUSTICE HOLMES with whom concurred MR. JUusTICE LURTON dissenting:

When a Federal right is held by a state court to have been lost by subsequent conduct that of itself involves no Federal question I think we are not at liberty to reexamine the decision unless we can say that the state court in substance is denying the right. So it has been held or strongly intimated as to res judicata, Northern Pacific R. R. Co. v. Ellis, 144 U. S. 458, estoppel, Hale v. Lewis, 181 U. S. 473, the statute of limitations, Rector v. Ashley, 6 Wall. 142 and laches, Moran v. Horsky, 178 U. S. 205, 214, 215, Pierce v. Somerset Ry., 171 U. S. 641, and the principle was recognized only the other day in Gaar, Scott & Co. v. Shannon, 223 U. S. 468, 470 471. I do not see the distinction by which we can review the decision in the opposite case, where it is held that the right is not lost or that it cannot be interfered with because of laches on the other side. In a case where the state court held that there

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was no defense under the statute of limitations or estoppel, the writ of error was dismissed. Carothers v. Mayer, 164 U. S. 325. I will content myself with saying that I do not see how the decision can be reversed on the ground of laches.

MR. JUSTICE LURTON concurs in this view and is of opinion that the writ should be dismissed.



No. 962. Submitted April 8, 1912.-Decided June 10, 1912.

Although a State may not be named as a party in the original proceeding, if it was really begun and prosecuted on its behalf and the State is named in all the papers on appeal and the State's attorney appears in this court generally, even if inadvertently, a motion to dismiss on the ground that the State is not a party will not prevail. Where the highest court of the State refuses a writ of error because, in its opinion, the judgment below is plainly right, doubt exists as to whether it is a refusal to take jurisdiction or an exercise of jurisdiction and affirmance; under the circumstances of this case, however, the Chief Justice of the state court having allowed the writ of error for review by this court, held that the judgment was on the merits and the writ of error runs to the highest court. Western Union Telegraph Co. v. Crovo, 220 U. S. 364, distinguished.

Where the refusal of the highest court of the State to allow a writ of error is also a refusal to take jurisdiction the writ of error from this court runs to the lower court.

Hereafter this court will regard the refusal of the highest court of the State to allow a writ of error to review the judgment of a lower court as a refusal to take jurisdiction and not as an affirmance unless the contrary plainly appears on the face of the record.

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A State does not take property of a turnpike company by opening the gates when its road is out of repair; nor is the enforcement of a statute which makes the keeping of a toll road in repair a condition precedent to the right to collect tolls ar. unconstitutional taking of property without due process of law; and in this case so held as to the enforcement of such a statute which has been in force in the State of Virginia since 1817.

THE facts, which involve the jurisdiction of this court under § 709, Rev. Stat., and the power of a State under the Fourteenth Amendment to suspend tolls on a turnpike pending the making of repairs properly ordered by state authority, are stated in the opinion.

Mr. Samuel W. Williams, Attorney General of the Commonwealth of Virginia, with whom Mr. J. D. Hank was on the brief, for defendant in error, in support of the motion.

Mr. Nathaniel T. Green, for plaintiff in error, in opposition thereto.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

On April 24, 1911, as authorized by the laws of Virginia, the judge of the Circuit Court of Princess Anne County, Virginia, of his own motion, appointed three persons, styled viewers, to examine and report upon the condition of three turnpikes, situated in the county and owned by the plaintiff in error. The viewers reported the turnpikes to be in bad condition and made recommendations as to the work necessary to be done to put them in good order. The Turnpike Company appealed from the report of the viewers to the Circuit Court. On the hearing of the appeal various motions were made on behalf of the Turnpike Company, to the overruling of which exception was taken, and which will be hereafter referred to, and an order was

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entered as authorized by a statute suspending the taking of tolls on the turnpike until they were put in proper repair. The effect of the order, however, was suspended by the making of an application to the Supreme Court of Appeals of Virginia for the allowance of an appeal and a writ of error to the order of the Circuit Court. The application however was rejected by an order reading as follows:

"In the Supreme Court of Appeals, Held at the Library Building in the City of Richmond on Thursday, the 11th Day of January, 1912.

"The petition of the Norfolk & Suburban Turnpike Company, a corporation, for a writ of error and supersedeas to a judgment or order entered by the Circuit Court of Princess Anne County, on the 12th day of December, 1911, in certain proceedings, pending in said court, whereby the collection of tolls by the said petitioner on certain sections of a turnpike located in said county was suspended, having been maturely considered and the transcript of the record of the judgment or order aforesaid seen and inspected, the court being of opinion that the said judgment or order is plainly right, doth reject said petition."

A writ of error addressed to the Supreme Court of Appeals of Virginia was then allowed by the President of that court. It was therein recited that the Supreme Court of Appeals of Virginia had "refused a writ of error, thereby affirming said judgment of said Circuit Court of Princess Anne County, Virginia." The same judicial officer also approved the bond and signed the citation. The Commonwealth of Virginia, however, was named as the obligee in the bond, and the citation was directed to that State as the "defendant in error." The Attorney General of the State, who states in his brief that he inadvertently signed as "Commonwealth's attorney of Princess Anne County," acknowledged service of the citation and entered the appearance of the Commonwealth in this court "without ad

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