Statutory construction.- Federal courts follow State courts' construction of State law, where not unreasonable or founded in clear mistake, p. 583.

Distinguished in Burgess v. Seligman, 107 U. S. 34, 27 L. 365, 2 S. Ct. 22, collecting authorities and refusing to follow State construction of State statute where decision was rendered subsequently to and contrary to Circuit Court construction.

Ejectment.— In case of doubt claim of party in possession ought to be maintained, p. 582.

Cited and rule applied in McKinney v. Daniel, 90 Va. 704, 19 S. E. 881, and Bradley v. Ewart, 18 W. Va. 606, holding plaintiff must recover on the strength of his own title, not on the weakness of the defendant's.

6 Wheat. 583-592, 5 L. 336, OTIS v. WALTER.

Under embargo act of 1808, if a vessel not actually arriving at port of original destination excites an honest suspicion that her demand of a permit to land was merely colorable, this is not a termination of the voyage so as to preclude the right of detention, pp. 590-592.

Landing of cargo is not necessarily a conversion, if collector thinks cargo can thus be best preserved, p. 592.

No citations.

6 Wheat, 593–598, 5 L. 339, GOSZLER v. GEORGETOWN.

Corporation can make only such contracts as are allowed by its charter, p. 597.

Cited and applied in dissenting opinion, Southern, etc., Co. v. Lanier, 5 Fla. 171, majority holding where charter authorized sale of stock for cash to be invested in bonds and mortgages, that a sale for bond and mortgage could not be avoided by purchaser; Welland Canal Co. v. Hathaway, 8 Wend. 484, 24 Am. Dec. 55, holding one entering into a contract with a corporation is not estopped from denying it to be a body corporate; Dow v. Northern R. R. Co., 36 Atl. 534, holding where corporation, chartered to operate a railroad, leased it, this lease is invalid against dissenting stockholders.

Municipal corporations.- Power to grade streets given to munielpality of Georgetown by act of Maryland, 1797, is a continuing power and corporation may, from time to time, alter the gradation so made, pp. 596-598.

This holding has been applied in the following citing cases and in making the following holdings: East Hartford v. Hartford B. Co., 10 How. 535, 13 L. 528, holding act discontinuing a ferry constitutional; Wabash R. R. Co. v. Defiance, 167 U. S. 98, 42 L. 92, 17 S.

Ct. 752, holding common council could change grade of streets; Charles River Bridge v. Warren Bridge, 11 Pet. 569, 9 L. 832, holding valid a grant of a second franchise, rendering first valueless; dissenting opinion, Baltimore T., etc., Co. v. Baltimore, 64 Fed. 163, majority holding ordinance giving leave to construct tracks on certain streets constituted a contract and was irrepealable; Winter v. Montgomery, 83 Ala. 594, 3 So. 238, holding municipal authorities can tear down and remove obstructions on sidewalks built under license of former council without giving compensation; Shaw v. Crocker, 42 Cal. 438, and Quincy v. Jones, 76 Ill. 243, 20 Am. Rep. 250, holding city has right to raise the grade of a street without being responsible for damages, if contractor does the work with proper skill; Reardon v. San Francisco, 66 Cal. 500, 56 Am. Rep. 111, 6 Pac. 321, holding municipality liable for such special consequential damage above the common injury to the other abutters on the street; Fellowes v. New Haven, 44 Conn. 251, 26 Am. Rep. 450, dismissing injunction to restrain city from working on street; Markham v. Atlanta, 23 Ga. 406, holding remedy for injury by re-grading of street is not by injunction; Wright v. Nagle, 48 Ga. 391, holding inferior County Court could not grant exclusive right to build a bridge; Bloomington v. Pollock, 141 Ill. 350, 31 N. E. 147, holding ordinances fixing grade of streets are not in the nature of contracts; Macy v. Indianapolis, 17 Ind. 269, holding consequential damage, resulting from change of grade of street, cannot be recovered from city; Kokomo v. Mahan, 100 Ind. 244, allowing city to collect assessment for a subsequent improvement of a street; Welch v. Bowen, 103 Ind. 257, 2 N. E. 725, holding power to regulate the running at large of animals, not exhausted by being exercised once; Commis sioners v. Fullen, 111 Ind. 413, 12 N. E. 299, holding commissioners can levy an additional assessment to pay for road, if necessary; Creal v. Keokuk, 4 G. Greene, 53, and Church v. Wyandotte, 31 Kan, 724, 3 Pac. 529, holding city not liable for prudent exercise of the power to change grade of street; Reynolds v. Shreveport, 13 La. Ann. 428, holding presumption is that a municipality executed a lawful power with propriety and good faith; Binney's Case, 2 Bland Ch. 128, holding power of condemnation given to company, not being a continuing one, was exhausted by being once exercised; Peddicord v. Railroad Co., 34 Md. 474, 483, holding railroad company not liable for change in grade of road; Mayor v. Willison, 50 Md. 148, 33 Am. Rep. 308, holding city not liable for injuries caused by obstructions to mill-race by acts done to improve streets; Green v. Railway Co., 78 Md. 302, 44 Am. St. Rep. 292, 28 Atl. 628; Pontiac v. Carter, 32 Mich. 167, and Hoffman v. St. Louis, 15 Mo. 654, holding established grade could be changed; St. Louis v. Gurno, 12 Mo. 424, holding corporation not liable for damages consequential upon the grading and paving of a street; Thurston v. St. Joseph, 51 Mo. 514, 11 Am. Rep. 466, overruling St. Louis v. Gurno, 12 Mo. 424,

and holding city liable for damages arising from negligent construction of sewer; dissenting opinion, Rychlicki v. St. Louis, 98 Mo. 508, 11 S. W. 1004, 4 L. R. A. 597, majority denying city's right to discharge accumulated water in a body upon adjacent lands; Radcliff v. Mayor, 4 N. Y. 204, 53 Am. Dec. 363, holding municipality not liable for change of grade of street not negligently done; Crawford v. Delaware, 7 Ohio St. 465, holding if erections are made on a lot in accordance with an established grade, city is liable for injury caused by change of grade; Gas, etc., Co. v. Columbus, 50 Ohio St. 71, 40 Am. St. Rep. 652, 33 N. E. 294, 19 L. R. A. 513, municipality not liable to gas company for damages for injury caused by change of grade; dissenting opinion, Parke v. Seattle, 5 Wash. St. 20, 32 Pac. 86, 34 Am. St. Rep. 848, n., 20 L. R. A. 74, municipality held liable for damages to abutting lands in grading street. See also valuable note, 66 Am. Dec. 438, on this subject; also, 26 Am. Rep. 457. Cited, arguendo, in dissenting opinion, Piqua Branch, etc. v. Knoup, 16 How. 403, 14 L. 991.

Municipal corporation cannot abridge its future legislative power, p. 598.

Principle applied in Illinois, etc., Co. v. St. Louis, 2 Dill. 89, F. C. 7,007, holding ordinance giving persons right to occupy a wharf for fifty years, void; State v. Graves, 19 Md. 354, 373, 81 Am. Dec. 646, holding city council could not pass an irrevocable ordinance; Lake, etc., Ry. v. Mayor, 77 Md. 375, 26 Atl. 514, 20 L. R. A. 132, ordinance authorizing laying of double tracks, may be repealed and company restricted to one track; State v. Murphy, 134 Mo. 575, 56 Am. St. Rep. 531, holding St. Louis has no power to grant privilege of constructing electrical subways for private gain of its grantee; State v. Hayes, 61 N. H. 332, holding provision that the sense of the voters shall be taken on a law, and if their decision is favorable it shall become a law, was a delegation of legislative power, and void; Milhau v. Sharp, 27 N. Y. 622, 84 Am. Dec. 318, holding municipal authorities could not give a franchise for an indefinite period to operate a railroad in the public streets; Johnson v. Philadelphia, 60 Pa. St. 452, holding a bond given to comply with existing regulations, cannot be construed to be binding engagement on part of the city to make no other regulations; Burroughs v. Peyton, 16 Gratt. 489, holding congress could not enter into a contract to exempt from subsequent calls to military service all those providing substitutes; Roanoke G. Co. v. Roanoke, 88 Va. 813, 814, 14 S. E. 666, 667, holding power to grade streets cannot be delegated by a municipality. Cited in Selma v. Muller, 46 Ala. 414, to point that a corporation can enter into a contract.

Distinguished in Armstrong v. St. Louis, 3 Mo. App. 158, holding a city may be enjoined from establishing a grade, where it would not be beneficial to the public and would render the street impass

able; Goodall v. Milwaukee, 5 Wis. 50, holding city liable for changing grade of street, when ordinance had been passed declaring grade would not be changed without compensating owners.

Miscellaneous.- Cited in Bauman v. Ross, 167 U. S. 568, 587, 42 L. 280, 287, 17 S. Ct. 974, 981, as an instance where the act of 1809 had been brought into court without a doubt of its constitutionality being expressed; In re Brinkman, 7 N. B. R. 426, 4 Fed. Cas. 146, apparently not in point.

6 Wheat. 598-605, 5 L. 840, McCLUNG v. SILLIMAN.

Mandamus.- State courts have no authority to issue a writ of mandamus to an officer of the United States, p. 604.

Cited and applied in dissenting opinion, Ex parte Crane, 5 Pet. 206, 207, 210, 8 L. 98, 99, 100, majority holding Supreme Court can issue writ of mandamus to judge of Circuit Court, commanding him to sign a bill of exceptions; dissenting opinion, Kendall v. United States, 12 Pet. 633, 646, 647, 649, 652, 9 L. 1224, 1229, 1230, 1231, 1232, 13 Pet. 608, App., 10 L. 317, majority holding Circuit Court of District of Columbia could issue a writ of mandamus to the postmastergeneral, compelling him to do a ministerial act; Territory v. Lockwood, 3 Wall. 239, 18 L. 49, holding proceeding in the nature of quo warranto to test the right of a judge of the Supreme Court of a territory to exercise the power, must be in the name of the United States, and not in the name of the territory; Rigg v. Johnson County, 6 Wall. 189, 198, 18 L. 774, 777, holding writ of mandamus from Circuit Court will lie against the county officers to levy a tax; Bath Co. v. Amy, 13 Wall. 249, 20 L. 541, holding mandamus does not lie from Circuit Court in favor of a holder of county bonds to make the county levy a tax; Rosenbaum v. Bauer, 120 U. S. 454, 30 L. 745, 7 S. Ct. 634, holding Circuit Court cannot acquire jurisdiction by removal from a State court of original proceedings to obtain a mandamus; Ex parte Van Orden, 3 Blatchf. 169, F. C. 16,870, holding District Court has no power to issue a writ of certiorari to court commissioner to review proceedings before him; Van Antwerp v. Hulburd, 7 Blatchf. 433, F. C. 16,826, holding this court has no jurisdiction of a suit in equity to control the administration of the duties of the comptroller of currency of the United States; United States v. Pearson, 24 Blatchf. 454, 32 Fed. 310, holding District Court cannot, by mandamus, compel a postmaster to transmit through mails a certain publication as second-class matter; The Celestine, 1 Biss. 12, F. C. 2,541, holding when jurisdiction of State court has attached, creditors cannot in Federal court obtain any control of the property; United States v. Plumer, 3 Cliff. 61, F. C. 16,056, holding Circuit Court has no authority to re-examine by writ of error rulings of District Court in criminal cases; Wheeling v. Baltimore, 1 Hughes, 94, F. C. 17,502, and Smith v. Jackson, 1 Paine, 456, F. C. 13,064, holding power of Circuit Courts to issue mandamus is

confined to cases in which it is necessary to the exercise of their jurisdiction; Ladd v. Tudor, 3 Wood. & M. 332, F. C. 7,975, query. whether mandamus lies from Federal courts to judges of State courts; Litchfield v. The Register, Woolw. 312, F. C. 8,388, refusing to interfere by injunction with executive officers in the exercise of discretionary power; In re Forsyth, 78 Fed. 301, holding District Court has no power to issue mandamus in an original proceeding; United States v. Judges, 85 Fed. 179, 56 U. S. App. 35, 36, collecting authorities and holding mandamus may not be invoked to direct a court or officer to reverse a judicial decision; Ex parte Hill, In re Willis v. Confederate States, 38 Ala. 438, holding State courts cannot, on writ of habeas corpus, discharge enrolled conscript from custody of Confederate officer; Ex parte Hill, In re Armistead v. Confederate States, 38 Ala. 461, 462, 464, 471, holding State court has jurisdiction to determine, whether placing a substitute in his stead exempted petitioner from liability to service; dissenting opinion of same case, p. 485; State v. Curtis, 35 Conn. 383, 95 Am. Dec. 268, holding an information in the nature of quo warranto will not lie in State court to try right to the office of director of a national bank; dissenting opinion, Swift v. Richardson, 7 Houst. (Del.) 365, 32 Atl. 148, majority holding that a stockholder of a private corporation may procure an inspection of the books by mandamus; Commissioner v. Smith, 5 Tex. 478, and Meyer v. Carolan, 9 Tex. 253, declaring mandamus will not issue to an officer to perform a discretionary duty; Bledsoe v. Railroad Co., 40 Tex. 556, holding court had no power to compel an officer of the government to perform an official duty; dissenting opinion, Kuechler v. Wright, 40 Tex. 665, majority holding mandamus will lie to compel commissioner of land office to perform a ministerial duty; State v. Cunningham, 81 Wis. 503, 51 N. W. 736, 15 L. R. A. 574, same as to ministerial acts of secretary of State. Cited in Decatur v. Paulding, 14 Pet. 601, 606, 10 L. 610, 613, and In re Brinkman, 7 N. B. R. 426, 4 Fed. Cas. 147; Baker v. Biddle, Bald. 403, 406, F. C. 764, but without special application of the rule.

Distinguished in Kendall v. United States, 12 Pet. 615, 617, 624, 9 L. 1217, 1218, 1221, holding Circuit Court of District of Columbia could issue a writ of mandamus to the postmaster-general, compelling him to do a ministerial act; Heine v. Commissioners, 19 Wall. 660, 22 L. 226, holding mandamus may be issued after judgment to compel levy of tax to pay bonds; United States v. Schurz, 102 U. S. 393, 26 L. 170, holding Supreme Court of District of Columbia can issue mandamus as an original process, where at common law the petitioner would be entitled to it; dissenting opinion, Louisiana v. Jumel, 107 U. S. 762, 763, 27 L. 466, 2 S. Ct. 170, 171, maintaining under act of 1875 that Circuit Court can by mandamus compel the performance of a purely ministerial act; United States v. Kendall, 5 Cr. C. C. 172, 243, 245, 246, 247, 250, 255, F. C. 15,517, holding