the erection and maintenance of the poles | Com. Rep. 306, 7 Sup. Ct. Rep. 1126; Ratterand wires.

Taylor v. Postal Teleg. Cable Co. 202 Pa. 583, 52 Atl. 128.

It is a mistake to measure the reasonableness of the charge by the amount actually expended by the city for a particular year. Chester City v. Western Ū. Teleg. Co. 154 Pa. 466, 25 Atl. 1134.

Regulation under the police power is not an attempt to regulate the business of the telegraph company.

man v. Western U. Teleg. Co. 127 U. S. 411,
32 L. ed 229, 2 Inters. Com. Rep. 59, 8 Sup.
Ct. Rep. 1127; Leloup v. Port of Mobile, 127
U. S. 640, 32 L. ed. 311, 2 lnters. Com. Rep.
134, 8 Sup. Ct. Rep. 1380; Brennan v. Titus-
ville, 153 U. S. 289, 38 L. ed. 719, 4 Inters.
Com. Rep. 658, 14 Sup. Ct. Rep. 829.

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

It is conceded that the borough had the right, in the exercise *of its police power, tc [425] impose a reasonable license fee upon tele graph poles and wires within its limits, and that an ordinance imposing such fee is to be taken as prima facie reasonable. But it is insisted that on the evidence in this case the presumption of reasonableness is rebutted, and that the ordinance as administered is void because a regulation of interstate commerce. While in the exercise of its control over its streets, it is admitted that the borough may supervise the location of the poles erected to sustain the wires of the plaintiff in error, may require them to be marked, may make such inspection of them welfare, and may impose a reasonable license as may be necessary to protect the public fee for the cost of such regulation and supervision, and of the issuing of such permits thereof, yet it is contended that if the lias may be required for the enforcement cense fee turned out to be in excess of the

State Freight Tax Case, 15 Wall. 232, sub nom. Philadelphia & R. R. Co. v. Pennsylvania, 21 L. ed. 146; Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708; Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238; Western U. Teleg. Co. v. Teras, 105 U. S. 460, 26 L. ed. 1067; Moran v. New Orleans, 112 U. S. 69, 28 L. ed. 653, 5 Sup. Ct. Rep. 38; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Brown v. Houston, 114 U. S. 622, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091; Walling v. Michi gan, 116 U. S. 446, 29 L. ed. 691, 6 Sup. Ct. Rep. 454; Pickard v. Pullman Southern Car Co. 117 U. S. 34, 29 L. ed. 785, 6 Sup. Ct. Rep. 635; Wabash, St. L. & P. R. Co. V. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4; Robbins v. Shelby County Taxing Dist. 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592; Philadelphia & S. Mail S. S. amount necessary to reimburse the municiCo. v. Pennsylvania, 122 U. S. 326, 30 L. ed. pality the ordinance became unreasonable 1200, 1 Inters. Com. Rep. 308, 7 Sup. Ct. and invalid. The superior court in its opinRep. 1118; Western U. Teleg. Co. v. Pendle-ion referred to many decisions of the suton, 122 U. S. 347, 30 L. ed. 1187, 1 Inters. preme court of Pennsylvania as definitely in excess of the cost of inspection and regula- the company, it is clearly within the scope of tion. the decisions denying the right of a state to impose license or privilege taxes upon telegraph or telephone companies doing interstate business. See, on this point, note to Postal Teleg. Cable Co. v. Baltimore (Md.) 24 L. R. A. 161.

But on writ of error from the circuit court of appeals, this judgment was reversed because the lower court had refused to admit, upon the question of the reasonableness of the ordinance, evidence of the additional expense for fire apparatus rendered necessary by the suspension of electric wires in the streets, and of the necessity of extra meetings of the council for the purpose of regulating the suspension of poles and wires. Philadelphia v. Western U. Teleg. Co. 32 C. C. A. 246, 60 U. S. App. 398, 89 Fed. 454. The court said that a wide scope should be given to the admission of evidence upon the question of the reasonableness of a license fee imposed by municipal ordinance upon poles and wires of a foreign telegraph company.

A municipal ordinance which imposes a 11cense fee upon each telegraph or telephone pole within its limits is unconstitutional and invalid as discriminating, where it excludes from its operation all poles maintained by electric-light and street-railway companies. Athens v. New York & P. Teleg. & Teleph. Co. 9 Pa. Dist. R. 253. See also, supra, Postal Teleg. Cable Co. v. Baltimore, 79 Md. 502, 24 L. R. A. 161, 29 Atl. 819.

The fact that the expense to a municipality by reason of the presence of telegraph poles and wires in its streets is caused by the wires of other telegraph companies than defendant is no objection to the validity of an ordinance impos

In Kentucky a tax by the state of $1 for each mile of the first line of wire within the state, and 50 cents per mile for each additional wire, with a penalty of $500 imposed on any agent of the company for failure to pay the tax, hasing a license tax on such poles and wires. been held unconstitutional as an attempted reg ulation of commerce, on the ground that it was not a tax on the property of the company with In the state, but upon its business. Smith, 92 Ky. 38, 17 S. W. 187.

Com v.

Considering the fact that a state tax like that In the case last cited can hardly be claimed to be a charge for police supervision of the poles and wires, it would seem that this decision is not in conflict with that of the Supreme Court of the United States in St. Louis v. Western U. Teleg. Co. 148 U. S. 92, 37 L. ed. 380, 13 Sup. Ct. Rep. 485, supra. If the tax is in fact on the business, rather than on the property of

The

license charged must be uniform as to all such users of the streets, and fixed with reference to the general aggregate amount of expenses to the municipality resulting from the presence of all the poles and wires. Philadelphia v. Atlantic & P. Teleg. Co. 42 C. C. A. 325, 102 Fed. 254.

The St. Louis board of public improvements was held in State ex rel. Bell Teleph. Co. v. Flad, 23 Mo. App. 185, to have no power to impose upon a telephone company other conditions for the use of streets than those imposed by statutes and ordinances; and the board must issue a permit for poles in the streets on compli ance with these conditions.

establishing, among other propositions, | think it would be going much too far for us
"that in an action to recover the license fee to decide that the test set up by the plain-
for a particular year, the same being pay- tiff in error must be necessarily applied, and
able at the beginning of the year, the fact the ordinance held void because of failure to
that the borough or city did not expend meet it. As the supreme court pointed out,
money for inspection, supervision, or police the elements entering into the charge are
surveillance of the poles and wires in that various, and the court of common pleas, the
year is not a defense," and "that the courts superior court, and the supreme court of
will not declare such ordinance void because Pennsylvania have held it to be reasonable,
of the alleged unreasonableness of the fee and we cannot say that their conclusion is
charged, unless the unreasonableness be so so manifestly wrong as to justify our inter-
clearly apparent as to demonstrate an abuse position.
of discretion on the part of the municipal
authorities." And it was said that in many
of the cases cited the license fee was the
same as that imposed by this ordinance.
16 Pa. Super. Ct. 309. The supreme court
affirmed the judgment in a similar case on
the opinion given below in this. 202 Pa.
532, 52 Atl. 127.

In Chester City v. Western U. Teleg. Co. 154 Pa. 464, 25 Atl. 1734, in which it was averred in the affidavit of defense that the rates charged were at least five times the amount of the expense involved in the supervision exercised by the municipality, the supreme court said: "For the purposes of this case we must treat this averment as true, as far as it goes. The difficulty is it does not go far enough. It refers only to [426] the usual, ordinary, *or necessary expense

*This license fee was not a tax on the [427] property of the company, or on its transmission of messages, or on its receipts from such transmission, or on its occupation or business, but was a charge in the enforcement of local governmental supervision, and as such not in itself obnoxious to the clause of the Constitution relied on. St. Louis v. Western U. Teleg. Co. 148 U. S. 92, 37 L. ed. 380, 13 Sup. Ct. Rep. 485, 149 U. S. 465, 37 L. ed. 810, 13 Sup. Ct. Rep. 990. Judgment affirmed.

Mr. Justice White, Mr. Justice Peckham, and Mr. Justice McKenna dissented.

MANUFACTURING
Piff. in Err.,

บ.

COMPANY,

ACME FLEXIBLE CLASP COMPANY.

of municipal officers, of issuing licenses and CARY
other expenses thereby imposed upon the
municipality. It makes no reference to the
liability imposed upon the city by the erec-
tion of telegraph poles. It is the duty of
the city to see that the poles are safe, and
properly maintained, and should a citizen be
injured in person or property by reason of
a neglect of such duty, an action might lie
against the city for the consequences of such
neglect.
It is a mistake, therefore,
measure the reasonableness of the charge by
the amount actually expended by the city
for a particular year, to the particular pur-
poses specified in the affidavit."

to

(See S. C. Reporter's ed. 427, 428.)

Error to circuit court of appeals case involving constitutional rights.

A

judgment of the circuit court of appeals which is made final by the judiciary act of March 3, 1891, § 6 (26 Stat. at L. 28, chap. 517, U. S. Comp. Stat. 1901, pp. 549, 550), is not reviewable by the Supreme Court of the United States on writ of error, although the suit involves constitutional rights, and therefore might have been brought directly from the circuit court to the Supreme Court.

In Taylor v. Postal Teleg. Cable Co. 202 Pa 583, 52 Atl. 128, the supreme court said: "Clearly the reasonableness of the fee is not to be measured by the value of the poles and wires or of the land occupied, nor by the profits of the business. The elements which enter into the charge are the necessary or probable expense incident to the is- Submitted December 17, 1902. Decided Jansuing of the license and the probable expense of such inspection, regulation, and pofice surveillance as municipal authorities

[No. 122.]

uary 5, 1903.

N ERROR to the United States Circuit

District of New York, imposing a fine for contempt incurred by the violation of an injunction issued under a decree in favor of complainant in a suit for infringement of a patent. Dismissed.

may lawfully give to the erection and main-Court of Appeals for the Second Circuit
tenance of the poles and wires.
Whether or not the fee is so obviously ex- to review a judgment which affirmed a judg-
cessive as to lead irresistibly to the conclument of the Circuit Court for the Northern
sion that it is exacted as a return for the
use of the streets, or is imposed for revenue
purposes, is a question for the courts, and
is to be determined upon a view of the facts,
not upon evidence consisting of the opinions
of witnesses as to the proper supervision
that the municipal authorities might prop-
erly exercise and the expense of the same.'
And see Philadelphia v. Western U. Teleg.
Co. 32 C. C. A. 246, 60 U. S. App. 398, 89
Fed. 454.

Concurring in these views in general, we

See same case below, 48 C. C. A. 118, 108 Fed. 873.

The facts are stated in the opinion.

Mr. A. G. N. Vermilya submitted the cause for plaintiff in error.

No counsel for defendant in error.

187 U. S.

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

The Acme Flexible Clasp Company brought suit in the circuit court of the United States for the southern district of [428] *New York against the Cary Manufacturing

Company for alleged infringement of letters
patent No. 314,204, granted to W. O.
Swett, March 17, 1885, for a staple fastener
for wooden vessels, which went to a decree
sustaining the validity of the patent and

zenship-suit by guardian in his own

name.

The guardian, and not the ward, is the party plaintiff, so far as Federal jurisdiction invoked solely on the ground of diverse citizenship is concerned, where the guardian has, under the state laws, the right to bring the suit in his own name.

[No. 124.]

uary 5, 1903.

adjudging the Cary Manufacturing Com- Submitted December 17, 1902. Decided Jan-
pany to have infringed it. 96 Fed. 344.
Defendant appealed to the circuit court of
appeals for the second circuit, and the de-

cree was affirmed. 41 C. C. A. 338, 101
Fed. 269. Proceedings in contempt were
subsequently commenced by the Acme com-
pany to punish the alleged violation of the
injunction issued under the decree, and the
circuit court imposed a fine of $2,000 for
contempt, to be paid to the clerk of the
court, one half of the sum to be paid to the
Acme company and one half to be paid to
the United States. The Cary company sued
out a writ of error from the circuit court
of appeals to review this judgment, and the
judgment was affirmed. 48 C. C. A. 118,
108 Fed. 873. Thereupon this writ of error
was allowed.

United States for the Western District

ERROR to the Circuit Court of the

of Texas to review a judgment entered on a verdict in favor of plaintiff in an action brought by a guardian in his own name to recover damages for injuries sustained by the ward. Affirmed.

Statement by Mr. Chief Justice Fuller:

This was an action brought in the circuit court of the United States for the western district of Texas by J. W. Eckman, a citizen and resident of that district, as guardian of Alfonso Huesselmann, a minor, against the Mexican Central Railway Company, a corporation of Massachusetts, to reIt is apparent that the writ of error can-cover damages for injuries sustained by him not be maintained, as the judgment of the in the Republic of Mexico through the negcircuit court of appeals was final. Judg.ligence of the company, in whose employments and decrees of those courts in all cases ment he then was. The complaint set out arising under the patent laws and under the criminal laws are made final by § 6 of the judiciary act of March 3, 1891. [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, pp. 549, 550.] Although it is insisted that the judgment imposing the fine was a final judgment in a criminal matter, it is argued that it involved the denial of constitutional rights, and hence that this court has jurisdiction under § 5 of that act; but it is set tled that even if a party might be entitled to come directly to this court under that section, yet if he does not do so, and carries his case to the circuit court of appeals, he must abide by the judgment of that court. Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745, 17 Sup. Ct. Rep. 343; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 46 L. ed. 546, 22 Sup. Ct. Rep. 452; Ayres v. Polsdorfer, 187 U. S. 585, post 314, 23 Sup. Ct. Rep. 196. Writ of error dismissed.

[429]*MEXICAN CENTRAL RAILWAY PANY, Limited, Plff. in Err.,

v.

J. W. ECKMAN, Guardian of Alfonso

selmann.

(See S. C. Reporter's ed. 429-436.)

Federal courts-jurisdiction—diverse

certain sections of the Constitution, of the Penal and Civil Codes, and acts of Congress and regulations thereunder, of Mexico, and averred that, "by virtue of the general principles of right and justice, and by virtue of the laws of Mexico hereinbefore set forth," *plaintiff had a right of action in Mexico, [430] and that the same existed in the United States; and also that the acts of negligence complained of were wrongful and actionable in the United States and in the state of Texas, as well as in the Republic of Mexico. Defendant filed a plea in abatement to the effect that Huesselmann was not then, or at the time of the infliction of the injuries, a citizen or resident of the state of Texas, but that he and his parents were citizens and residents of the state of Illinois; and that defendant was a resident and citizen of Massachusetts, and had not waived its right to be sued there, which right it pleaded, and asked that the action be dismissed. The plea was overruled, and defendant filed an answer containing seven exceptions or pleas to the jurisdiction, an exception to the complaint for insufficiency, and a general denial. COM-All of the pleas were overruled, and the case was tried before a jury, a verdict rendered in plaintiff's favor, and judgment enHues-tered thereon. Thereupon a writ of error was allowed from this court on a certificate that the following questions of jurisdiction

NOTE. As to diverse citizenship as ground of | 108, and note; and Myers v. Murray, N. & Co.
Federal jurisdiction-see Shipp v. Williams, 10 (C. C. S. D. Iowa) 11 L. R. A. 216, and note.
C. C. A. 247, and note; Mason v. Dullagham, 27 And see note to Roberts v. Lewis, 36 L. ed. U.
C. C. A. 296, and note; Seddon v. Virginia, T. & S. 579.
C. Steel & I. Co. (C. C. W. D. Va.) 1 L. R. A.

"Fourth. Where plaintiff's cause of ac tion arose in the Republic of Mexico, and the rights are to be determined by the laws of said republic, and where defendant has continuously kept its property and operated Susquehanna & W. Valley R. & Coal Co. its road in said republic, has this court juv. Blatchford, 11 Wall. 172, 20 L. ed. 179; risdiction to hear and determine this cause Continental L. Ins. Co. v. Rhoads, 119 U. in the absence of any reason shown in the S. 237, 30 L. ed. 380, 7 Sup. Ct. Rep. 193; pleading or proof why plaintiff did not Pennington v. Smith, 24 C. C. A. 145, 45 U. bring his suit in the Republic of Mexico? S. App. 409, 78 Fed. 399; Harper v. Norfolk & W. R. Co. 36 Fed. 102; Popp v. Cincinnati, H. & D. R. Co. 96 Fed. 465; Seccomb v. Wurster, 83 Fed. 860.

It is admitted that Eckman was duly ap pointed guardian of both the person and estate of Huesselmann by the proper court of Texas thereto empowered, and that he was a citizen and resident of the western district of Texas.

866, actions may be brought in any district in which either the plaintiff or the defendant resides. We have held that a corporation incorporated in one state only cannot be compelled to answer in a circuit court of the United States held in another

subdivision of the 5th section of the judiciary act of March 3, 1891 [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549], providing that that may be done "in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified Under the act of March 3, 1887, 24 Stat. to the Supreme Court from the court below at L. 552, chap. 373 [U. S. Comp. Stat. for decision." It must be regarded as set-1901, p. 514], as corrected by that of Autled that the jurisdiction here referred to is gust 13, 1888, 25 Stat. at L. 433, chap. the jurisdiction of the circuit or district courts of the United States as such (Smith v. McKay, 161 U. S. 355, 40 L. ed. 731, 16 Sup. Ct. Rep. 490; Blythe v. Hinckley, 173 U. S. 501, 43 L. ed. 783, 19 Sup. Ct. Rep. 497); that the whole case is not open to us, but only the question of jurisdiction (Horn-state, to a civil suit, at law or in equity, er v. United States, 143 U. S. 570, 576, 36 I. ed. 266, 12 Sup. Ct. Rep. 522; United States v. Jahn, 155 U. S. 112, 39 L. ed. 89, 15 Sup. Ct. Rep. 39); and that review by certificate is limited to the certificates by the circuit or district courts, made after final judgment, of questions made as to their own jurisdiction, and to the certificates by the circuit court of appeals of questions of law in relation to which the advice of this court is sought as therein provided. United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983.

brought by a citizen of a different state. Shaw v. Quincy Min. Co. 145 U. S. 444, sub nom. Ex parte Shaw, 36 L. ed. 768, 12 Sup. Ct. Rep. 935. But that is not this case, as here the action was brought by a citizen of Texas in the district of his residence.

of Texas a guardian can sue in his own The question is whether under the laws name to recover damages for injuries sustained by the ward, and it is unaffected by the permanent domicil of the ward. Hoyt v. Sprague, 103 U. S. 613, 26 L. ed. 585; New Orleans v. Gaines, 138 U. S. 595, 600, Defendant's counsel condenses the propo- sub nom. New Orleans v. Whitney, 34 L. ed. sitions relied on into these: (1) That "the 1102, 1106, 11 Sup. Ct. Rep. 428, 431; citizenship of the ward, the actual plaintiff, Delaware County v. Diebold Safe & Lock not that of the guardian, the nominal plain-Co. 133 U. S. 473, 488, 33 L. ed. 674, 680, tiff, controls;" (2) that "the laws of Mex- 10 Sup. Ct. Rep. 399. ico as pleaded and proved, and which are relied on to support this case, are so vague and indefinite, and so dissimilar to the laws of Texas, as to be incapable of enforcement in our courts, and are inconsistent with the statutes and public policy of Texas;" and (3) that these laws "are penal in their character, and such as should be given no

extra-territorial effect."

But, apart from the question of jurisdiction in respect of citizenship, it is apparent that the jurisdiction of the circuit court as a court of the United States was not put in issue, for the other contentions were matters on the merits, and this judgment to the contrary is not void, but is only open to be attacked for error, while, in any aspect, the objections applied to all courts of this country, and not particularly to the Federal

courts.

[433] *And if the jurisdiction of the circuit court was invoked solely on the ground of diverse citizenship, the case should have been taken to the circuit court of appeals for the fifth circuit, to which court previous similar cases have been carried, and by which the questions suggested here have been dealt with. Evey v. Mexican C. R. Co. 38 L. R. A. 387, 26 C. C. A. 407, 52 U. S. App. 118, 81 Fed. 294; Mexican C. R. Co. v. Marshall, 34 C. C. A. 133, 91 Fed. 933.

These matters, however, are not properly before us in this case, and we intimate no opinion upon them.

The question for us to determine is whether the jurisdiction of the circuit court can be sustained through the citizenship of the guardian.

It is true that where a state or one of its officials is a party, to a suit on a sheriff's or administramere figurehead, a nominal tor's bond, or an action is instituted in the name of a United States marshal on an attachment bond, the real party in interest is taken into account on the question of citizenship, notwithstanding the general rule[434] depends, not on the relative situation of the that the jurisdiction of the Federal courts parties concerned in interest, but on the relative situation of the parties named in the record. But those are instances of merely formal parties, whose names are used from necessity, and, as said in New Orleans have repeatedly held that representatives v. Gaines, by Mr. Justice Bradley, "we Federal courts irrespectively of the citizenmay stand upon their own citizenship in the such as executors, administrators, guardship of the persons whom they represent,ians, trustees, receivers, etc. The evil which the law was intended to obviate was the voluntary creation of Federal jurisdiction by simulated assignments. But assignments by operation of law, creating legal representatives, are not within the mischief or reason of the law."

If in the state of the forum the general guardian has the right to bring suit in his own name as such guardian, and does so, he is to be treated as the party plaintiff so far as Federal jurisdiction is concerned, even though suit might have been instituted in the name of the ward by guardian ad litem or next friend. He is liable for costs in the event of failure to recover and for attor