value, but according to their capacity, or, as was said, "solely and exclusively on the basis of their cubical contents as ascertained by the rules and admeasurement and computation prescribed by Congress." It was the nature of the tax or duty, coupled with the mode of assessing it, which made the law a violation of the Constitution. As stated, the vessels taxed were such as were plying in the navigable waters of the State. If not plying in those waters they were not taxed. The tax was, therefore, an impediment to navigation in those waters, which led the court to say that it was as instruments of commerce and not as property the vessels were required to contribute to the revenues of the State. The fact that the tax was proportioned to the tonnage of the vessels taxed was relied upon only as supporting the conclusion that they were not taxed as property but as instruments of commerce, and the court, in view of all these considerations, remarked: "Beyond all question the Act is an act to raise revenue without any corresponding or equivalent benefit or advantage to the vessels taxed, or to the ship-owners, and consequently it is not to be upheld by virtue of the rules applied in the construction of laws regulating pilot dues and port charges." Nothing in these cases justifies the assertion that port charges or charges for wharfage are duties of tonnage merely because they are proportioned to the actual tonnage or cubical capacity of vessels. It would be a strange misconception of the purpose of the framers of the Constitution were its provisions thus understood. What was intended by the provisions of the second clause of the tenth section of the first article was to protect the freedom of commerce and nothing more. The prohibition of a duty of tonnage should, therefore, be construed so as to carry out that intent. A mere adherance to the letter, without reference to the spirit and purpose, may in this case mislead, as it has misled in other cases. It can not be thought that the framers of the Constitution when they drafted the prohibition had in mind charges for services rendered, or for convenience furnished to vessels in port, which are facilities to commerce rather than hindrances to its freedom. And if such charges were not in mind, the mode of ascertaining their reasonable amount could not have been. In Cooley vs. The Board of Port Wardens, 12 How. 299, this court recognized a clear distinction between charges for wharfage and imports, or duties on imports or exports, or duties on tonnage. Referring to the second paragraph of section 10, article 1, of the Constitution, Curtis, J., speaking for the court, said: "This provision of the Constitution was intended to operate upon subjects actually existing and well understood when the Constitution was formed. Imposts, and duties on imports, exports, and tonnage, were then known to the commerce of the civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial states enforced their laws, as they were from charges of wharfage or towage, or any other local port charges for services rendered to vessels or cargoes, and to declare that such pilot-fees or penalties are embraced within the words imposts, or duties on imports or exports, or tonnage, would be to confound things essentially different, and which must have been known to be actually different by those who used this language. It is the thing, and not the name, that is to be

considered."

*

*

*

For these reasons we hold that the ordinance can not be considered as imposing a duty of tonnage, and what we have said is sufficient to show that most

of the other objections of the plaintiffs in error to its validity have no substantial foundation. It is in no sense a regulation of commerce between the States, nor does it impose duties upon vessels bound to or from one State to another, nor compel entry or clearance in the port of Keokuk, nor is it contrary to the compact contained in the ordinance of 1787, since it levies no tax for the navigation of the river, nor is it in conflict with the Act of Congress respecting the enrollment and license of vessels for the coasting trade. All these objections rest on the mistaken assumption that port charges, and especially charges for wharfage, are taxes, duties, and restraints of commerce.

In nothing that we have said do we mean to be understood as affirming that a city can, by ordinance or otherwise, charge or collect wharfage for merely entering its port, or stopping therein, or for the use of that which is not a wharf, but merely the natural and unimproved shore of a navigable river. Such a question does not arise in this case. As we have noticed, the record shows that the wharfage charged to these plaintiffs in error was for the use of a wharf, built, paved and improved by the city at large expense. So far as the ordinance imposes and regulates such a charge it is not obnoxious to the accusation that it is in conflict with the Constitution. A different question would be presented had the steamboats landed at the bank of the river where no wharf had been constructed or improvement made to afford facilities for receiving and discharging cargoes. We adhere to all that was decided in Cannon vs. New Orleans. In that case the city ordinance imposed what were called "levee dues" on all steamboats that should moor or land in any part of the harbor of New Orleans. It was subsequently amended by the substitution of the words "levee and wharfage dues" for "levee dues," but even as amended it did not profess to demand compensation for wharfage. The plaintiff filed a petition for an injunction against the collection of the dues prescribed by it, and for the recovery of those he had been compelled to pay. It did not appear that he had ever made use of any wharf or improved levee, and what we decided was that the city could not impose a charge for merely stopping in the harbor. The case in hand is different. The ordinance of Keokuk has imposed no charge upon these plaintiffs which it was beyond the power of the city to impose. To the extent to which they are affected by it there is no valid objection to it. Statutes that are constitutional in part only will be upheld so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are severable. We think a severance is possible in this case. It may be conceded the ordinance is too broad, and that some of its provisions are unwarranted. When those provisions are attempted to be enforced a different question may be presented.

The judgment is affirmed.-Keokuk Northern Line Packet Company vs. City of Keokuk.-Central Law Journal.

Abstract of Decisions.

UNITED STATES SUPREME COURT.

October Term, 1877.

CONSTITUTIONAL LAW.

Law impairing obligation of contract: what is not.-A statute passed by a State Legislature prescribing a mode of service of judicial process upon a corporation different from that provided for in its charter: Held, not in conflict with the provision of the Federal Constitution forbidding laws impairing the obligation of a contract. Judgment below affirmed. Cairo and Fulton R. R. Co. vs. Hecht. Opinion by Waite, C. J.

DURESS.

1. What does not constitute.-To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary there must be some actual and threatened exercise of power possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another, from which the latter has no other immediate means of relief than by making payment. A payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid. (Brumagim vs. Tillinghast, 18 Cal. 266; Mayor of Baltimore vs. Jefferman, 4 Gill, 425; Muys vs. Cincinnati, 1 Ohio St. 268.) Judgment below affirmed. (Radich vs. Hutchins.) Opinion by Field, J.

EVIDENCE.

1. What presumptive evidence of ownership of stock in corporation: what conclusive evidence of ownership.-Where the name of an individual appears in the stock-book of a corporation as stockholder, the prima facie presumption is that he is the owner of the stock. In a case where there is nothing to rebut the presumption, and in an action against him as stockholder, the burden of proving him not such is cast upon the defendant. (Hoagland vs. Bell, 36 Barb. 56; Turnpike Road vs. Van Ness, 2 Cranch C. C. 451; Mudgett vs. Morell, 33 Cal. 29; Coffin vs. Collins, 17 Me. 442; Merrill vs. Walker, 24 id. 237; Plank Road vs. Rice, 7 Barb. 162.) The receipt of dividends is conclusive evidence of ownership. Decision below affirmed. (Turnbull vs. Payson.) Opinion by Clifford, J.

Judicial records: of bankrupt court: in United States District Court.--Records of a bankrupt court in the Northern District of Illinois authenticated in conformity with the provisions of the Bankrupt Act, held admissible in an action in the United States District Court in Maryland by the assignee of a bankrupt corporation against a stockholder for contribution to pay the debts of the company. It is not necessary that the record of a judgment should be authenticated as provided by the Act of Congress passed in pursuance of article 4, section 1, of the Federal Constitution to render it admissible in the courts of the United States; and the District Court of the United States, even out of the

State composing the district, is to be regarded as a domestic and not a foreign court, and the records of the court may be proved by the certificate of the Clerk with the seal of the court, without the certificate of the Judge. (Adams vs. Way, 33 Conn. 430; Michener vs. Payson, 13 N. B. R. 50; Mason vs. Lawrason, 1 Cranch, C. C. 190.) Ib.

FIRE INSURANCE.

Condition in policy: loss caused by petroleum.-In an insurance policy against fire issued to an express company upon goods transported by it over railroads, etc., was this clause: "It is a further condition of this insurance that no loss is to be paid arising from petroleum or other explosive oils. By a collision between a disabled train containing petroleum and an express train, upon which the express company had goods, the petroleum ignited and was burned, and with it the goods. The petroleum did not belong to the company, and was not under its control. Held, that the loss of the goods was caused by the petroleum, and the insurance company were, under the clause in the policy, exempted from liability therefor. Judgment below reversed. (Imperial Fire Ins. Co. vs. Fargo, President Am. Express Co.) Opinion by Strong, J.

JURISDICTION.

Cause transferred from State Court: amendment of pleading after transfer.— In this case the appellee, Sperry, brought suit in a California court against the appellants, who duly appeared and caused the suit to be removed into the Circuit Court of the United States for the District of California. In that court Sperry filed an amended or new complaint. On appeal to the Supreme Court one of the errors alleged as ground for reversing the decree in favor of Sperry was that this amended bill showed no jurisdlction in the Circuit Court. If nothing else was looked at but the bill, there was no jurisdiction shown. Held, that as the proceedings in the State court, which were properly here as part of the record of the case, showed that it was removed from the State court to the Federal court on account of the citizenship of the parties, and this of itself must have given jurisdiction to the United States court before the amended bill was filed, that jurisdiction was not lost because the facts upon which it arose were not set out in the old or the new complaint. (Railway vs. Ramsey, 22 Wallace, 322.) Decree below affirmed. (Malbec de Monjoc, etc., vs. Sperry.) Opinion by Miller J.

LIFE INSURANCE.

1. Condition against suicide: notice of death and "just claim:" construction of condition.-By a clause of a policy of life insurance, which was conditioned to be void if the one whose life was insured should die by his own hand, it was provided that before demanding payment in case of death due and satisfactory proof should be made to the company of death and of the just claim of the assured. Held, that the just claim of the assured had reference to the title or claim to the policy, and not to the justness of the cause of action thereon, and proof that the death had occurred by suicide did not render the proof unsatisfactory. Judgment below affirmed. (Charter Oak Life Insurance Co. vs. Rodel.) Opinion by Bradley, J.

2. What kind or degree of insanity will excuse suicide so as to make insurance

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company liable.—The judge, after stating that the burden of proving the insanity of the deceased was on the plaintiff, charged the jury as follows: It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable; to do this, the act of selfdestruction must have been the consequence of insanity, and the mind of the deceased must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act which he was about to do, the company is liable. On the other hand, there is no presumption of law, prima facie or otherwise, that selfdestruction arises from insanity, and you will remember a great many jurors were excused from the panel because they thought the law was otherwise; therefore, you will bear in mind that there is no presumption, prima facie or otherwise, that self-destruction arises from insanity; and if you believe from the evidence that the deceased, although excited or angry, or disturbed in mind, formed a determination to take his own life, because in the exercise of his usual reasoning faculties he preferred death to life, then the company is not liable, because he died by his own hand within the meaning of the policy. "If the insured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches and there can be no recovery; that is, he did die by his own act. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, and when his reasoning faculties are so far impaired that he shall not be able to understand the moral character or the general nature, consequence, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not in the contemplation of the parties to the contract, and the insurer is liable." Held, no error (following Life Ins. Co. vs. Terry, 15 Wall. 580). Ib.

3. Conditions avoiding policy: condition as to payment: as to residence: waiver.-By conditions in a life-insurance policy, the same was to become void in case of failure to pay the regular premium on the day it was due, and also if the insured, without the consent of the company, should reside within certain prohibited districts. It was, however, provided, that even after the day for the payment of the premium had passed, the company would waive the failure, upon being satisfied that the insured was still in health, and it was customary for an agent of the company to receive premiums after they were due, and his acts in doing so were sanctioned by the company, who furnished him with renewal receipts for the purpose. The agent had, however, no authority to waive the forfeiture arising from residence in the prohibited district. The insured, who had failed to pay a premium, when due, and was residing within the prohibited district, without consent, was taken sick with yellow fever, of which he shortly after died. While he was sick his agent called upon the insurance agent and paid the premium and received a receipt renewing the policy for one year, signed by the company and countersigned by its agent. The agent of the insured was asked nothing about the health of the insured,