Argued and Submitted January 25, 1899. | was no suggestion in the pleadings, or during Decided February 20, 1899. the trial, or, so far as appears, in the state supreme court, that any right the receiver possessed as receiver was contested, although

N ERROR to the Supreme Court of the

I State Washington a merits

ment of that court affirming a judgment of
the Superior Court of King County, Wash-
ington, in an action brought by Dixon to re-
cover damages for personal injuries sus-
tained by him by reason of the negligence of
one Backus, predecessor of the defendant,
Bausman, as receiver, etc. The judgment of
the trial court was rendered in favor of the
plaintiff upon a verdict for $10,000. Writ
of error dismissed.

See same case below, 17 Wash. 304.
The facts are stated in the opinion.
Mr. Frederick Bausman for plaintiff
in error.

Messrs. John E. Humphries, Edward
P. Edsen, William E. Humphrey, Harrison
Bostwick, and C. E. Remsberg for defendant
in error.

[113] *Mr. Chief Justice Fuller delivered the opinion of the court:

Dixon brought an action in the superior court of King county, Washington, against Bausman, receiver of the Ranier Power & Railway Company, to recover damages for injuries sustained by reason of defendant's negligence. The complaint alleged that the Ranier Power & Railway Company was a corporation organized under the laws of Washington, and engaged in operating a certain street railway in the city of Seattle; that June 13, 1893, one Backus was duly appointed by the circuit court of the United States for the district of Washington receiver of the company, and qualified and served [114]*as such until February 11, 1895, when he was succeeded by Bausman; and that the injury of which plaintiff complained was inflicted in the course of the operation of the railway, on June 15, 1893. The answer denied that Bausman's predecessor in office had employed Dixon, and that Dixon's injuries were caused by negligence; and set up contributory negligence as an affirmative defense. The action was tried by a jury and a verdict rendered in favor of Dixon, the jury also returning answers to certain questions of fact specially propounded. A motion for a new trial was overruled and judgment entered on the verdict, and the cause was carried to the supreme court of Washington, which affirmed the judgment (17 Wash. 304); whereupon this writ of error was allowed.

We are unable to find adequate ground on which to maintain jurisdiction. The contention of plaintiff in error seems to be that because of his appointment as receiver the judgment against him amounts to a denial of the validity of an authority exercised under the United States, or of a right or immunity specially set up or claimed under a statute of the United States. It is true that the receiver was an officer of the circuit court, but the validity of his authority as such was not drawn in question, and there

was denied, and defendant contended that plaintiff had assumed the risk which resulted in the injury, and had also been guilty of contributory negligence. The mere order of the circuit court appointing a receiver did not create a Federal question under section 709 of the Revised Statutes, and the receiver did not set up any right derived from that order, which he asserted was abridged or taken away by the decision of the state court. The liability to Dixon depended on principles of general law applicable to the facts, and not in any way on the terms of the order.

We have just held in Capital National Bank of Lincoln v. The First National Bank of Cadiz, 172 U. S. 425 [ante. 502], that where the receiver of a national bank was [115] party defendant in the state courts, contested the issues on a general denial, and set up no claim of a right under Federal statutes withdrawing the case from the application of general law, this court had no jurisdiction to revise the judgment of the highest court of the state resting thereon; and, certainly, an officer of the circuit court stands on no higher ground than an officer of the United States.

Defendant did not deny that he was amenable to suit in the state courts; he did not claim immunity as receiver from suit without previous leave of the circuit court, and could not have done so in view of the act of March 3, 1887, chap. 373 (24 Stat. at L. 552); all the questions involved were questions of general law, including the inquiry whether one person holding the office of receiver could be held responsible for the acts of his predecessor in the same office; and the judgment specifically prescribed that the "said amount and judgment is payable out of the funds held by said Bausman as receiver of said company, which come into the hands of said receiver and are held by him as receiver, and funds belonging to the receivership which are applicable for that purpose, which may hereafter come into the re

ceiver's hands or under direction of the court

appointing such receiver."

Section 3 of the act of March 3, 1887, provides that "every receiver or manager of any property, appointed by any court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was ap pointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was ap pointed, so far as the same shall be neressary to the ends of justice." It is not denied that this action was prosecuted and this judgment rendered in accordance there with.

The writ of error is dismissed.

[116]J. K. MULLEN and Charles D. McPhee, | in that court was that "if the loss of the

Plffs. in Err.,



(See S. C. Reporter's ed. 116-123.)

plaintiff's cattle was in consequence of dis-[117]
ease communicated by the cattle of the de-
fendant, its liability depends upon its acts
with reference to rules and regulations
which it was legally bound to observe."

The regulations of the Secretary of Agri

Review of a state judgment-highest state culture were as follows:

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Regulations Concerning Cattle Transportation.

United States Department of Agriculture, Office of the Secretary,

Washington, D. C., February 5th, 1891. To the Managers and Agents of Railroad and Transportation Companies of the United States, Stockmen and Others:

In accordance with section 7 of the act of Congress approved May 29, 1884, entitled "An Act for the Establishment of a Bureau

Argued and Submitted January 18, 1899. of Animal Industry, to Prevent the ExportaDecided February 20, 1899.

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N ERROR to the Court of Appeals of the of that court which affirmed a judgment of the District Court of Arapahoe County, Colorado, in favor of the defendant, the Western Union Beef Company, in an action brought to recover damages for the loss of stock occasioned by the communication of an infectious disease from the cattle of the defendant to those of the plaintiff. Writ of error dismissed.

See same case below, 9 Colo. App. 497.

Statement by Mr. Chief Justice Fuller: This was an action brought by Mullen and McPhee against the Western Union Beef Company, in the district court of Arapahoe County, Colorado, to recover damages for loss of stock occasioned by the communication from cattle of defendant to cattle of plaintiff's of the disease known as splenetic or Texas fever, by the importation into Colorado of a herd of Texas cattle, in June, 1891, and suffering them to go at large, in violation of the quarantine rules, regulations, and orders of the United States Department of Agriculture, in accordance with the act of Congress approved May 29, 1884, entitled "An Act for the Establishment of a Bureau of Animal Industry," etc., 23 Stat. 31, chap. 60; and the act approved July 14, 1890, 26 Stat. 287, chap. 707; and in violation of the quarantine rules and regulations of the state of Colorado. The trial resulted in a verdict for defendant, on which judgment was entered. Plaintiffs sued out a writ of error from the court of appeals of the state of Colorado, and the judgment was affirmed, whereupon the present writ of error was allowed."

The court of appeals held that the question of violation by defendant of the quarantine rules and regulations of the state need not be considered because "upon sufficient evidence, it was settled by the jury in defendant's favor;" that "no question of negligence generally in the shipment and management of the cattle is presented by the record;" and that the theory on which the case had been tried below and was argued

tion of Diseased Cattle, and to Provide
Means for the Suppression and Extirpation
of Pluro-pneumonia and Other Contagious
among Domestic

the act of Congress approved July 14. 1890,
making appropriation for the Department
of Agriculture for the fiscal year ending
June 30, 1891, you are notified that a con-
tagious and infectious disease known a
splenetic or southern fever exists among
cattle in the following described area of the
United States:
From the 15th day

of February to the 1st day of December,
1891, no cattle are to be transported from
said area to any portion of the United States
north or west of the above-described line,
except in accordance with the following reg-

[Here followed a series of stringent rules concerning the method to be pursued in transporting cattle from the infected districts.]

United States Department of Agriculture,
Office of the Secretary,

Washington, D. C., April 23d, 1891. Notice is hereby given that cattle which have been at least ninety days in the area of country hereinafter described may be[118] moved from said area by rail into the states of Colorado, Wyoming, and Montana for grazing purposes, in accordance with the regulations made by said states for the admission of southern cattle thereto. Provided:

1. That cattle from said area shall go into said states only for slaughter or grazing, and shall on no account be shipped from said states into any other state or territory of the United States before the 1st day of December, 1891.

2. That such cattle shall not be allowed in pens or on trails or ranges that are to be occupied or crossed by cattle going to the eastern markets before December 1, 1891, and that these two classes shall not be allowed to come in contact.

3. That all cars which have carried cattle from said area shall, upon unloading, at once be cleaned and disinfected in the manner provided by the regulations of this department of February 5th, 1891.

4. That the state authorities of the states

of Colorado, Wyoming, and Montana, agree to enforce these provisions.

The court, after stating that the territory described in both orders included that from which the defendant's cattle were shipped, said: "It is the rules relating to the isolation of cattle moved from infected districts, and more particularly the second proviso of the second order, which were claimed to have been violated by the defendant."

And it was then ruled that the regulations were not binding, as it was not shown that the state had agreed to them; that they were not authorized by the statute; that "the second provision undertakes to regulate the duties in relation to them [the cattle], of the persons by whom they might be removed after their arrival in the state, and it is upon this provision that the plaintiffs' reliance is chiefly placed. After becoming domiciled within the state their management would be regulated by its laws and not by the act of Congress. Any violation of the Federal law in connection with the cattle would consist in their removal. The dispo[119]sition of them afterwards was not within the scope of the statute. [9 Colo. App. 497],

49 Pac. 425.

Messrs. T. B. Stuart and W. C. Kingsley for plaintiffs in error.

Messrs. C. S. Thomas, W. H. Bryant,

and H. H. Lee for defendant in error. 19) *Mr. Chief Justice Fuller delivered the opinion of the court:

We are met on the threshold by the objection that the writ of error runs to the judgment of the court of appeals, and cannot be maintained, because that is not the judgment of the highest court of the state in which a decision could be had.

The supreme court of Colorado is the highest court of the state, and the court of appeals is an intermediate court, created by an act approved April 6, 1891 (Sess. Laws Colo. 1891, 118), of which the following are


"Section 1. No writ of error from, or appeal to, the supreme court shall lie to review the final judgment of any inferior court, unless the judgment, or in replevin the value found, exceeds two thousand five hundred dollars, exclusive of costs. Provided, this limitation shall not apply where the matter in controversy relates to a franchise or freehold, nor where the construction of a provision of the Constitution of the state or of the United States is necessary to the determination of a case. Provided, further, that the foregoing limitation shall not apply to writs of error to county courts."

"Sec. 4. That the said court shall have jurisdiction:

"First. To review the final judgments of inferior courts of record in all civil cases and in all criminal cases not capital.

"Second. It shall have final jurisdiction, subject to the limitations stated in subdivision 3 of this section, where the judgment, or in replevin the value found, is two thousand five hundred dollars, or less, exclusive of costs.

*"Third. It shall have jurisdiction, not[120] final, in cases where the controversy involves a franchise or freehold, or where the construction of a provision of the Constitution of the state, or of the United States, is necessary to the decision of the case; also, in criminal cases, or upon writs of error to the judgments of county courts. Writs of error from, or appeals to, the court of appeals shall lie to review final judgments, within the same time and in the same manner as is now or may hereafter be provided by law for such reviews by the supreme court."

respect of its jurisdiction under these secThe supreme court of Colorado has held in tions, that whenever a constitutional question is necessarily to be determined in the adjudication of a case, an appeal or writ of ters but little how such question is raised, error from that court will lie; that "it matwhether by the pleadings, by objections to evidence, or by argument of counsel, provided the question is by some means fairly brought into the record by a party entitled to raise it;" but "it must fairly appear from an examination of the record that a decision of such question is necessary, and also that the question raised is fairly debatable (Trimble it appears by the record that a case might v. People, 19 Colo. 187); and also that "when well have been disposed of without construing a constitutional provision, a construction of such provision is not so necessary to a determination of the case as to give this court jurisdiction to review upon that ground" (Arapahoe County Comrs. v. [McIntire] State Board of Equalization, 23 Colo. 137); and, again, that "unless a constitutional question is fairly debatable, and has been properly raised, and is necessary to the determination of the particular controversy, appellate jurisdiction upon that ground does not exist." Madden v. Day, 24 Colo. 418.

This record discloses that defendant insisted throughout the trial that the acts of Congress relied on by plaintiffs were unconstitutional if construed as authorizing the particular regulations issued by the Secretary.

When plaintiffs offered the rules and regulations in evidence, which they contended defendant had violated, defendant *objected to[121] their admission on the two grounds that they were not authorized by the acts of Congress, and that, if they were, such acts were unconstitutional. The objection was overruled and defendant excepted.

The regulations having been introduced in evidence, plaintiffs called as a witness, among others, a special agent of the Department of Agriculture, who was questioned in respect of their violation, to which defendant objected and excepted on the same grounds.

At the conclusion of plaintiffs' case, a motion for nonsuit was made by defendant, the unconstitutionality of the acts under which the regulations were made being again urged, and an exception taken to the denial of the motion.

The trial then proceeded, and, at its close, defendant requested the court to give this instruction: "The court instructs the jury

that the act of Congress and the rules and
regulations made under the same which the
plaintiffs allege to have been violated, are
not authorized by the Constitution of the
United States, and are not valid subsisting
laws or rules and regulations with which
the defendant is bound to comply, and any
violation of the same would not, of itself,
be an act of negligence, and you are not to
consider a violation of the same as an act
of negligence in itself in arriving at a verdict
in this case."

This instruction was objected to and was
not given, though no exception appears to
have been thereupon preserved.

On behalf of plaintiffs the court was asked to instruct the jury as follows:

therewith would have constituted negligence per se, those courts would have been necessarily compelled to pass upon the constitutionality of the acts, which question was sharply presented by defendant. And it is also obvious that if the supreme court had been applied to and granted a writ of error, and that court had differed with the conclusions of the court of appeals, arrived at avart from constitutional objections, the validity of the acts and regulations would have been considered.

*The court of appeals seems to have been of[123] opinion that after the cattle arrived in Colorado, Congress had no power to regulate their disposition, and hence that the regulations were not binding. And the question of power involved the construction of a provision of the Constitution of the United States. At the same time its judgment may fairly be said to have rested on the view that the statutes did not assert the authority of the United States, but conceded that of the state, in this regard; and that the regulations were not within the terms of the statutes. But, if the case had reached the supreme court, that tribunal might have ruled that the judgment could not be sustained on these grounds, and then have considered the grave constitutional question thereupon aris

"If the jury are satisfied from the evidence
that the defendant company failed to com-
ply with paragraph two of the rules and reg.
ulations of the United States Department of
Agriculture of April 23, 1891, and that the
defendant company did not put its cattle in
pens or on trails or ranges that were to be
occupied or crossed by the plaintiffs' cattle
going to eastern markets before December,
1891, so that these two classes should not
come in contact, then that constitutes negli-
gence and want of reasonable care on the
part of the defendant, and you need not look
to any other evidence to find that the defend-ing.
[122]ant did not use reasonable care in this case,
and that the defendant was guilty of negli-

This was refused by the court and plain-
tiffs excepted. But the court charged the
jury that the rule promulgated by the Sec-
retary of Agriculture "would have the effect
to give to this defendant notice that the
United States authorities having in charge
the animal industries, so far as the govern-
ment of the United States may control it,
were of the opinion that it was unsafe to
ship cattle from Kimble county at the pe-
riod of the year into Colorado and graze them
upon lands that were being occupied by other
cattle intended for the eastern market, or to
allow them to commingle with them."
this modification of the instruction requested
plaintiffs saved no specific exception.


After the affirmance of the judgment by the court of appeals, plaintiffs filed a petition for a rehearing, the eighth specification of which was that

"This court erred in holding and deciding that the rules and regulations promulgated by the Secretary of Agriculture on April 23, 1891, as shown by the record herein, were not applicable to the herd of cattle which the defendant in error imported into Colorado in June, 1891, as shown by the record herein, for the reason, as this court held, that after said cattle were domiciled in Colorado their management must be regulated by the state laws, and not by the act of Congress, and that the disposition of said cattle afterwards was not within the scope of Federal authority."

It thus appears that if the trial court and the court of appeals had been of opinion that the Secretary's rules and regulations were within the terms of the authority conferred by the statutes, and that noncompliance

And although the supreme court might have applied the rule that where a judgment rests on grounds not involving a constitutional question it will not interfere, we cannot assume that that court would not have taken jurisdiction, since it has not so decided in this case, nor had any opportunity to do so.

We must decline to hold that it affirmatively appears from the record that a deci sion could not have been had in the highest court of the state, and, this being so, the writ of error cannot be sustained. Fisher v. Perkins, 122 U. S. 522 [30: 1192]. Writ of error dismissed.

PANY, Appt.,



(See S. C. Reporter's ed. 123-130.)

Arizona law as to attachment--time of issuing attachment-construction of stat ute.



The right to issue an attachment "at the commencement of the suit, or at any time during its progress," as given by Ariz. Rev. Stat. 1887, tit. 4, chap. 1, ¶ 42, is taken away by the provision of the act of March 6, 1891, authorizing attachment at the issuance of summons, or at any time afterward.

An attachment issued before the issuance of a summons is void under Ariz. Rev. Stat. 1887, 40, as amended by the act of March 6, 1891, allowing attachment "at the time of Issuing the summons, or at any time afterward."

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[No. 140.]

of the territory, or is a foreign corporation, or is acting as such; or,

"3. That he is about to remove permanently cut of the territory, and has refused to

Argued January 16, 1899. Decided Febru- pay or secure the debt due the plaintiff; or, 4. That he secretes himself, so that the ordinary process of law cannot be served on him; or,


ary 20, 1899.

N APPEAL from a judgment of the Supreme Court of the Territory of Arizona affirming a judgment of the District Court of the Fourth Judicial District in and for Yavapai County, in said Territory, in favor of James I. Gardner, appellee, against the Henrietta Mining & Milling Company, in an action in which an attachment was issued and property sold upon the judgment. Reversed, and cause remanded for further proceedings.

The facts are stated in the opinion.
Messrs. Frank Asbury Johnson and
William H. Barnes for appellant.

Messrs. S. M. Stockslager and George C.
Heard for appellee.

[124] *Mr. Justice McKenna delivered the opinion of the court:

This is an appeal from a judgment of the supreme court of the territory of Arizona, affirming a judgment of the district court of the fourth judicial district in and for Yavapai county, for $12,332.08 in favor of appelfee and against appellant, who was plaintiff

in error below. The action was upon an open account and a large number of assigned accounts. An attachment was sued out and the mines and mining property of appellant company were seized. Judgment was rendered by default, and the property attached ordered sold.

The judgment is attacked on two grounds: (1) That there was no personal service on appellant; (2) that the attachment was void because the writ was issued before the issuance of summons.

It is conceded that the appellant is an Illinois corporation, and that there was no per sonal service upon it. Was the attachment issued in accordance with the statutes of Arizona? If it was not, the judgment must be reversed. Pennoyer v. Neff, 5 U. S. 714 [24:565].

"5. That he has secreted his property, for the purpose of defrauding his creditors; or, "6. That he is about to secrete his property for the purpose of defrauding his credit

ors; or,

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"11. That he is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or,

"12. That the debt is due for property obtained under false pretenses.

"41 (Sec. 2). The affidavit shall further state:

"1. That the attachment is not sued out

for the purpose of injuring or harassing the defendant; and,

*"2. That the plaintiff will probably lose[126] his debt unless such attachment is issued.

"42 (Sec. 3). No such attachment shall issue until the suit has been duly instituted, but it may be issued in a proper case either at the commencement of the suit or at any time during its progress.

"43 (Sec. 4). The writ of attachment above provided for may issue, although the plaintiff's debt or demand be not due, and the same proceeding shall be had thereon as in other cases, except that no final judgment shall be rendered against the defendant until such debt or demand shall become due."

The record shows that the complaint was Paragraph 649 provides that "all civil filed December 4, 1894; that on the 24th of suits in courts of record shall be commenced that month affidavit and bond for attach- by complaint filed in the office of the clerk of ment were filed and the writ was issued. such court." Therefore, if paragraph 42 The return shows the seizure of the proper- (section 3) was in force at the time the ty on the 26th of December, the day sum-writ of attachment was issued, to wit, on the

mons was issued.

[125] *The Revised Statutes of Arizona of 1887, chapter 1 of title 4, provided for attachments and garnishments as follows:

"40 (Sec. 1). The judges and clerks of the district courts and justices of the peace may issue writs of original attachment returnable to their respective courts, upon the plaintiff, his agent, or attorney, making an affidavit in writing, stating one or more of the following grounds:

"1. That the defendant is justly indebted to the plaintiff, and the amount of the demand; and,

"2. That the defendant is not a resident

24th of December, 1894, there is no doubt of

the validity of the writ. But it is contended that the paragraph was not in force, because, it is claimed, it had been repealed by an act passed by the legislative assembly of the territory, approved March 6, 1891.

This act is entitled "An Act to Amend Chapter 1, Title 4, Entitled 'Attachments and Garnishments."" Revised Statutes of Arizona, 1887. Section 1 is as follows:

"Sec. 1. Paragraph 40, being section 1, chapter 1, title 4, Revised Statutes of Arizona. 1887, is hereby amended so as to read as follows:

"The plaintiff at the time of issuing the

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