fund of the Treasury, but held as a separate fund to be used for the
government and benefit of Porto Rico, and were made subject to repeal
by the legislative assembly of that island, shows that the tax was not
intended as a duty upon exports, and that Congress was undertaking
to legislate for the island temporarily, and only until a local govern-
ment was put in operation. Ib.
7. The judgment of the state court in this case was based upon the con-
sideration given by it to all the asserted violations of the statutes
jointly, and hence no one of the particular violations can be said, when
considered independently, to be alone adequate to sustain the conclu-
sions of the court below that a judgment of ouster should be en-
tered. Capital City Dairy Co. v. Ohio, 238.
8. The contention that the statutes of Ohio in question are repugnant to the
commerce clause of the Constitution is without merit. Those statutes
were, the act of 1884, the act of 1886, and the act of 1890, all referred to
in the opinion, and all relating to the sale of drugs or articles of food,
and especially oleomargarine. Ib.
9. The Fifth Amendment of the Constitution operates solely on the Na-
tional Government, and not on the States. Ib.
10. The legislature of Ohio had the lawful power to enact the statutes in
question, and so far as they related to the manufacture and sale of
oleomargarine within the State of Ohio by a corporation created by the
laws of Ohio, they were not repugnant to the Constitution of the United
States. Ib.
11. The provisions of subdivision 5 of the tax law of the State of New York,
which became a law April 16, 1897, are not in violation of the Four-
teenth Amendment to the Constitution, nor of section 10 of article 1 of
the Constitution. Orr v. Gilman, 278.
12. The opinion in Carpenter v. Pennsylvania, 17 How. 456, although de-
cided before the adoption of the Fourteenth Amendment to the Consti-
tution, correctly defines the limits of jurisdiction between the state
and the Federal Governments, in respect to the control of the estates
of decedents, both as they were regarded before the adoption of the
Fourteenth Amendment, and have since been regarded. Ib.
13. The holding of the Court of Appeals of New York, that it was the ex-
ecution of the power of appointment which subjected grantees under
it to the transfer tax, is binding upon this court. Ib.
14. The Court of Appeals did not err when it held that a transfer or suc-
cession tax, not being a direct tax upon property, but a charge upon
a privilege, exercised or enjoyed under the laws of the State, does not,
when imposed in cases where the property passing consists of securi-
ties exempt by statute, impair the obligation of a contract within the
meaning of the Constitution of the United States. Ib.
15. The view of the Court of Appeals in this case must be accepted by this
court as an accurate statement of the law of the State. Ib.
16. There is nothing in the Federal Constitution which forbids a State
to reach backward and collect taxes from certain kinds of property
which were not at the time collected through lack of statutory provi
sion therefor, or in consequence of a misunderstanding as to the law, or
from neglect of administrative officials, without also making provision
for collecting the taxes, for the same years, on other property.
ida Central &c. Railroad v. Reynolds, 471.
17. The question of the validity of the Constitution and laws of Kentucky,
under which these proceedings were had, is properly before the court,
whose consideration of it must, however, be restricted to its Federal
aspect. Louisville & Nashville Railroad Co. v. Kentucky, 503.
18. This court must accept the meaning of the state enactments to be that
found in them by the state courts. Ib.
19. A state railroad corporation, voluntarily formed, cannot exempt itself
from the control reserved to the State by its constitution, and, if not
protected by a valid contract, cannot successfully invoke the interpo-
sition of Federal courts, in respect to long haul and short haul clauses
in a state constitution, simply on the ground that the railroad is prop-
erty. Ib.
20. A contract of exemption from future general legislation cannot be
deemed to exist unless it is given expressly or follows by implication
equally clear with express words. Ib.
21. A railroad charter is taken and held subject to the power of the State
to regulate and control the grant in the interest of the public. Ib.
22. Interference with the commercial power of the general government to
be unlawful must be direct, and not merely the incidental effect of en-
forcing the police power of a State. Ib.
23. The statute of Massachusetts of 1894, c. 522, sec. 98, imposing a fine on
"any person who shall act in any manner in the negotiation or trans-
action of unlawful insurance with a foreign insurance company not ad-
mitted to do business in this Commonwealth," is not contrary to the
Constitution of the United States, as applied to an insurance broker
who, in Massachusetts, solicits from a resident thereof the business of
procuring insurance on his vessel therein, and as agent of a firm in
New York, having an office in Massachusetts, secures the authority of
such resident to the placing of a contract of insurance for a certain
sum in pounds sterling upon the vessel, and transmits an order for
that insurance to the New York firm; whereupon that firm, acting ac-
cording to the usual course of business of the broker, of itself, and of
its agents in Liverpool, obtains from an insurance company in London,
which has not been admitted to do business in Massachusetts, a policy
of insurance for that sum upon the vessel; and the broker afterwards
in Massachusetts, receives that policy from the New York firm, and
sends it by mail to the owner of the vessel in Massachusetts. Nutting
v. Massachusetts, 553.
CONTRACT.
See ADMIRALTY, 6 to 14.
When a corporation is formed in one State, and by the express terms of its
charter it is created for doing business in another State, and business
is done in that State, it must be assumed that the charter contract was
made with reference to its laws; and the liability which those laws
impose will attend the transaction of such business. Pinney v. Nel-
son, 144.
1. The rule reiterated, that civil tribunals will not revise the proceedings
of courts martial, except for the purpose of ascertaining whether they
had jurisdiction of the person and of the subject-matter, and whether
though having such jurisdiction, they have exceeded their powers in
the sentences pronounced. Carter v. McClaughry, 365.
2. Where the punishment on conviction of any military offence is left to
the discretion of the court martial, the limit of punishment, in time
of peace, prescribed by the President, applies to the punishment of
enlisted men only. Ib.
3. Where the jurisdiction of the military court has attached in respect of
an officer of the army, this includes not only the power to hear and
determine the case, but the power to execute and enforce the sen-
tence. Ib.
4. Where the sentence is rendered on findings of guilty of several charges
with specifications thereunder, and the President, as the reviewing au-
thority, has disapproved of the findings of guilty of some of the speci-
fications, but approved the findings of guilty of a specification or
specifications under each of the charges, and of the charges, and the
President does not think proper to remand the case to the court martial
for revision, or to mitigate the sentence, or to pardon the accused, but
approves the sentence, the judgment so rendered cannot be disturbed
on the ground that the disapproval of some of the specifications vitiated
the sentence. Ib.
5. In this case, Charge I was "Conspiring to defraud the United States, in
violation of the 60th article of war." Charge II was "Causing false
and fraudulent claims to be made against the United States in viola-
tion of the 60th article of war." These are separate and distinct
offences and the military court was empowered to punish the accused
as to one by fine and as to the other by imprisonment. Ib.
6. Charge III was "Conduct unbecoming an officer and a gentleman, in
violation of the 61st article of war." This is not the same offence as
the offences charged under the 60th article of war. But in view of
articles 97 and 100, conviction of Charges I and II involves conviction
under article 61, and the officer may be dismissed on conviction under
either article. Ib.
7. Charge IV was Embezzlement, as defined in section 5488 of the Re-
vised Statutes, in violation of the 62d article of war." Held: (a) That
the specified crime was not mentioned in the preceding articles. That
the offences of which the accused was convicted under the 60th article
were distinct from the acts prohibited by section 5488. (b) That the
crime alleged in this charge was not covered by subdivision 9 of arti-
cle 60, because the embezzlement charged was not of money "furnished
or intended for the military service." (c) Nor was the money applied
to a purpose prescribed by law, and it was for the court martial to de-
termine whether the crime charged was "to the prejudice of good
order and military discipline.” Ib.
1. While desertion is not a crime provided for in our ordinary extradition
treaties with foreign nations, the arrest and return to their ships of de-
serting seamen is required by our treaty with Russia and by other trea-
ties with foreign nations. Query: Whether in the absence of a treaty,
courts have power to order the arrest and return of seamen deserting
from foreign ships? Tucker v. Alexandroff, 424.
2. While foreign troops entering or passing through our territory with the
permission of the Executive are exempt from territorial jurisdiction,
it is doubtful whether in the absence of a treaty or positive legislation
to that effect, there is any power to apprehend or return deserters. Ib.
3. The treaty with Russia containing a convention upon that subject, such
convention is the only basis upon which the Russian Government can
lay a claim for the arrest of deserting seamen. The power contained
in the treaty cannot be enlarged upon principles of comity to embrace
cases not contemplated by it. Ib.
4. A treaty is to be interpreted liberally and in such manner as to carry out
its manifest purpose. Ib.
Section 761 of the Revised Statutes provides as to habeas corpus cases that
"the court'or justice or judge shall proceed in a summary way to deter-
mine the facts of the case by hearing the testimony and arguments, and
thereupon to dispose of the party as law and justice require;" and this
mandate is applicable to this court, whether exercising original or ap-
pellate jurisdiction. Storti v. Massachusetts, 138.
1. The Potomac Company insured Mitchell in a sum not exceeding five
thousand dollars on his stock of stoves and their findings, tins and tin-
ware, tools of trade, etc., kept for sale in a first-class retail stove and
tin store in Georgetown, D. C., with a privilege granted to keep not
more than five barrels of gasoline or other oil or vapor. The policy
also contained the following provisions: "It being covenanted as con-
ditions of this contract that this company . . . shall not be liable
for loss caused by lightning or explosions of any kind unless
fire ensues, and then for the loss or damage by fire only." "Or if gun.
powder, phosphorus, naphtha, benzine, or crude earth or coal oils are
kept on the premises, or if camphene, burning fluid, or refined coal or
earth oils are kept for sale, stored or used on the premises, in quanti-
ties exceeding one barrel at any one time without written consent, or
if the risk be increased by any means within the control . . . of
the assured, this policy shall be void." An extra premium was charged
for this gasoline privilege. A fire took place in which the damage to
the insured stock amounted to $4568.50. This fire was due to an ex-
plosion which caused the falling of the building and the crushing of
the stock. Mitchell claimed that there was evidence of a fire in the
back cellar which caused that explosion, and that the explosion was
therefore but an incident in the progress of the fire, and that the com-
pany was therefore liable on the policy. The court instructed the jury
that if there existed upon the premises a fire, and that the explosion,
if there was an explosion, followed as an incident to that fire, then the
loss to the plaintiff would be really occasioned by the fire, for the ex-
plosion would be nothing but an incident to fire; but if the explosion
were not an incident to a precedent fire, but was the origin and the
direct cause of the loss, then there was no destruction by fire, and the
plaintiff was not entitled to recover anything from the defendant.
Held: (1) That it was not important to inquire whether there was any
evidence tending to prove the existence of the alleged fire in the front
cellar because the submission of the question to the jury was all that
the plaintiff could ask, and the verdict negatives its existence. (2) That
there was no evidence of any fire in the back cellar preceding the light-
ing of the match in the front cellar. (3) That the instructions in re-
gard to gasoline as more fully set forth in the opinion of this court were
correct. Mitchell v. Potomac Insurance Co., 42.
2. The court further charged the jury: (1) That if the loss was caused
solely by an explosion or ignition of explosive matter, not caused by a
precedent fire, the plaintiff cannot recover; (2) that if an explosion oc-
curred from contact of escaping vapor with a match lighted and held
by an employé of the plaintiff, and the loss resulted solely from such
explosion, the verdict must be for the defendant; (3) that a match
lighted and held by an employé of the plaintiff coming in contact with
vapor and causing an explosion, is not to be considered as "fire" with-
in the meaning of the policy. Held, that each of these instructions was
correct. Ib.
3. There is no error in the other extracts from the charge set forth in the
opinion of this court. Ib.
4. Over insurance by concurrent policies on the same property tends to
cause carelessness and fraud; and a clause in a policy rendering them
void in case other insurance had been or should be made upon the prop-
erty and not consented to by the insurer, is customary and reasonable.
Northern Assurance Co. v. Grand View Building Association, 308.
5. In this case such a provision was expressly and in unambiguous terms
contained in the policy sued on, and it was shown in the proofs of loss
furnished by the insured, and it was found by the jury, that there was
a policy in another company outstanding when the one sued upon in
this case was issued; and hence the question in this case is reduced to
one of waiver. Ib.
6. It is a fundamental rule in courts both of law and equity, that parol con-
temporaneous evidence is inadmissible to contradict or vary the terms
of a valid written instrument, unless in cases where the contracts are
vitiated by fraud or mutual mistake. Ib.
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