Page images
PDF
EPUB

so deal with the controversy that the party will lose nothing by his
choice of tribunals. Ib.

See JQRISDICTION, B 3.

REPEAL.
See STATUTES, A 2.

RESIDENCE.
See Public LANDS, 5.

RES JUDICATA.
No foundation for plea where no formal judgment entered.
Where no formal judgment has been entered the plea of res judicata has

no foundation; neither the verdict of a jury nor the findings of a court
even though in a prior action, upon the precise point involved in a sub
sequent action and between the same parties constitutes a bar. Okla-
homa City v. McMaster, 529.

RESTRAINT OF TRADE.
See COMBINATIONS IN RESTRAINT OF TRADE;

CONSTITUTIONAL LAW, 8;
STATES, 2.

RULES OF COURT.
See JURISDICTION, B 2.

SEA DUTY.
See NAVAL OFFICERS.

SENATORS OF THE UNITED STATES.

See CRIMINAL Law;

JURISDICTION, A 6.

SERVICE OF PROCESS.

See PROCESS.

SET-OFF.
See BANKRUPTCY, 4.

SHERMAN ACT.
See COMBINATIONS IN RESTRAINT OF TRADE.

SHIPPING.
See CONTRACTS, 2;

MARITIME LAW.

STANDARD OF CONDUCT.

See MARITIME LAW.

STATES.
1. Police power under Constitution.
The police power of the State does not give it the right to violate any

provision of the Federal Constitution. Central of Georgia Ry. Co. v.
Murphey, 194.

2. Police power; extent of, where freedom of contract involved.
While there is a certain freedom of contract which the State cannot destroy

by legislative enactment, in pursuance whereof parties may seek to
further their business interests, the police power of the State extends
to, and may prohibit a secret arrangement by which, under penalties,
and without any inerging of interests through partnership or incor-
poration an apparently existing competition among all the dealers in
a community in one of the necessaries of life is substantially destroyed.
Smiley v. Kansas, 447.

3. Power to withdraw suit from cognizance of Federal court.
A State cannot by any statutory provisions withdraw'a suit in which there

is a controversy between citizens of different States from the cognizance
of the Federal courts. Traction Company v. Mining Company, 239.

4. Right to tax or prohibit sale of cigarettes.
A State may reserve to itself the right to tax or prohibit the sale of cigarettes,

and while this court is not bound by the construction given to a statute
by the highest court of the State as to whether a tax is or is not a license
to sell it will accept it unless clearly of the opinion that it is wrong.
Hodge v. Muscatine County, 276.
See Cases EXPLAINED, 2; INTERSTATE COMMERCE, 1, 4, 5;

CONSTITUTIONAL LAW, 1, 7; JURISDICTION, A 3;
CORPORATIONS, 2;

LOCAL LAW;
EMINENT DOMAIN, 2;

REMOVAL OF CAUSES, 3;
WATERS, 1.

STATUTES.

A. CONSTRUCTION OF.

1. Application of state court's construction of state statutesCalifornia license

ordinance held a revenue measure.
Whether a statute of a State is or is not a revenue measure and how rights

thereunder are affected by a repealing statute depends upon the con-
struction of the statutes, and where no Federal question exists this
court will lean to an agreement with the state court. Under the
California cases the county ordinance imposing licenses involved in
this case was a revenue and not a police measure. Flanigan v. Sierra
County, 553.

2. Repeal extinguishing power derived from statute-Doctrine applied to

other than penal statutes.
While the doctrine that powers derived wholly from a statute are extin-

guished by its repeal and no proceedings can be pursued under the
repealed statute, although begun before the repeal, unless authorized
under a special clause in the repealing act has been oftenest illustrated
in regard to penal statutes, it has been applied by the California courts
to the repeal of the power of counties to enact revenue ordinances and

will therefore in such a case be applied by this court. Ib.
3. Legislative intent, the main purpose of construction.
While the court may not add to or take from the terms of a statute, the

main purpose of construction is to give effect to the legislative intent
as expressed in the act under consideration. United States v. Crosley,

327.
4. Act of June 3, 1878, relative to use of timber on public lands.
In the act of June 3, 1878, 20 Stat. 88, c. 150, permitting the use of timber on

the public lands for “ building, agricultural, mining and other domestic
purposes," the word “domestic" is not to be construed as relating
solely to household purposes omitting "other" altogether but it ap-
plies to the locality to which the statute is directed and gives per-
mission to industries there practiced to use the public timber. To
enlarge or abridge a permission given by Congress to certain specified
industries to use the public timber would not be regulation but legis-
lation and under the provisions of the statute of June 3, 1878, 20 Stat.
88, the power given by the Secretary of the Interior to make regula-
tions cannot deprive a domestic industry from using the timber.

United States v. United l'erde Copper Co., 207.
5. Meaning of wordsAssociation of words.
An apt and sensible meaning must be given to words as they are used in a

statute and the association of words must be regarded as designed and
not as accidental, nor will a word be considered an intruder if the

statute can be constried reasonably without eliminating that word. Ib.
6. Of statutes in derogation of common law and penal statutes; strictness of

construction.
Statutes in derogation of the common law and penal statutes are not to

be construed so strictly as to defeat the obvious intention of Congress
as found in the language actually used according to its true and ob-
vious meaning. Johnson v. Southern Pacific Co., l.
See AU'TOMATIC COUPLERS;

Navy PERSONNEL Act;
BANKRUPTCY;

PRACTICE, 1, 2;
COMBINATIONS IN RESTRAINT PUBLIC LANDS; .
OF TRADE;

TAXATION, 9;
FEDERAL QUESTION, 1;

War REVENUE ACT;
WATERS, 2.

B. OF THE UNITED STATES.

See Acts OF CONGRESS.

C. OF THE STATES AND TERRITORIES.

See Local Law.

STOCKHOLDERS.
See CORPORATIONS;

JURISDICTION, B 2.

STREETS AND HIGHWAYS.
Obstructions; stepping-stones asDuty of municipality as to illumination.
An object which subserves the use of streets need not necessarily be con-

sidered an obstruction although it may occupy some part of the space
of the street. The duty of a city to specially illuminate and guard
the place where an object is depends upon whether such object is an
unlawful obstruction. Under ff 222 and 233, Rev. Stat., District
of Columbia, the District is not prohibited from permitting a stepping-
stone on any part of the street because it is an obstruction per se nor
is the District required to specially illuminate and guard the place
where such stepping-stone is located. Wolff v. District of Columbia,
152.

See CONSTITUTIONAL LAW, 2;

MUNICIPAL CORPORATIONS, 2

STREET RAILWAYS.
See ConstituTIONAL LAW, 2;

MUNICIPAL CORPORATIONS.

SUBSTITUTION OF PARTIES.

See Parties.

SUMMONS.
See PROCESS.

SURVEYS.
See Public LANDS, 6.

TAXATIOX.
1. Effect of failure, by taxpayer, to present defense.
If the taxpayer be given an opportunity to test the validity of a tax at any

time before it is made final, either before a board having quasi judicial
character, or a tribunal provided by the State for that purpose, due
process is not denied, and if he does not avail himself of the opportunity
to present his defense to such board or tribunal, it is not for this court
to determine whether stich defense is valid. Hodge v. Muscatine

County, 276.
2. State's right to tar cigarettes.
A State may reserve to itself the right to tax or prohibit the sale of cigarettes,

and while this court is not bound by the construction given to a statute
by the highest court of the State as to whether a tax is or is not a license

to sell it will aceept it unless clearly of the opinion that it is wrong. Ib.
3. Validity of section 5007, lova Code.
Section 5007, lowa ('ode, imposing a tax against every person and upon the

real property and the owner thereof whereon cigarettes are sold does
not give a license to sell cigarettes, nor is it invalid as depriving the
owner of the property of his property without due process of law,
because it does not provide for giving him notice of the tax, $8 2441,
2442, Iowa Code, providing for review with power to remit by the
board of supervisors. Ib.

1. Question of validity of state statute not a Federal one.
Whether or not a state statute violates the state constitution in not stating

distinctly the tax and the object to which it is to be applied is a local
and not a Federal question. Ib.

5. Lien on realty for tax on business conducted thereon.
A tax to carry on a business may be made a lien on the property whereon

the business is carried and the owner is presumed to know the business
there carried on and to have let the property with knowledge that it
might be encumbered by a tax on such business. Ib.

6. Government bonds subject to seizure for taxes due.
There is nothing in the exemption of Government bonds from taxation

which prevents them from being seized for taxes due upon unexempt
property. Scottish Union & Nat. Ins. Co. v. Bowland, 611.

7. Enjoining suit for collection of taxes.
Where there is no personal liability for taxes the defense can be set up

in an action at law and there is no necessity to resort to equity to
enjoin prosecution of suits therefor. It will be presumed that if the
claim of the party taxed is right no personal judgment will be entered.
Ib.

8. Ohio tax law construedMunicipal bonds owned and deposited by foreign

insurance company as prerequisite to conducting business in State, sub-

ject to taxation.
While technically municipal bonds deposited with the insurance commis-

sioner under the laws of Ohio regulating the right of foreign companies
to do business within the State are investments in bonds, they are also
a part of the capital stock of the company invested in Ohio and re-
quired to be so invested for the security of domestic policy holders,
and for the purposes of taxation to be considered as part of the capital
stock of the company and included within the statutory definition of
personal property required to be returned by foreign and domestic
corporations for taxation. Ib.

9. Ohio tax law construedConstitutionality of law.
While no tax can be levied without express authority of law statutes are

to receive a reasonable construction with a view to carrying out their
purpose and intent, and the collection hy disiraint of goods to satisfy
taxes lawfully levied is one of the most ancient methods known to
the law and in this case the law of Ohio authorizing it does not violate

« PreviousContinue »