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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