Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars, besides costs." It is the contention of the plaintiff in error that under section 241 the judgments of the Circuit Court of Appeals are not final and there is a right to a writ of error from this court, the matter in controversy exceeding $1,000, besides costs. The District Court of Alaska is a court with the jurisdiction of United States District Courts and general jurisdiction in civil, criminal, equity, and admiralty causes. 4 U. S. Comp. St. § 3564. In that court these suits were brought to recover the taxes in question. As already indicated, the answer in each of the cases raised an issue as to the constitutionality of the statute under which the taxes were levied, and the question which we are now to consider is: Are the judgments of the Circuit Court of Appeals final? In interpreting the sections of the statutes controlling this matter resort must be had to the language of the laws, to the history of the legislation, and the decisions of this court interpreting the Circuit Court of Appeals Act, now substantially carried into the Judicial Code, in so far as the same are applicable. *The sections of the Judicial Code pertaining to Alaska had their origin in prior federal legislation concerning the territory. The committee on revision of the laws in its report to Congress said of section 134: "This section is drawn from section 202 of the Criminal Code for Alaska (Act March 3, 1899, c. 429, 30 Stat. 1307), and from sections 504 and 505 of the Civil Code (Act June 6, 1900, c. 786, 31 Stat. 414, 415), and states what was the existing law on the subject. Those portions of the sections which authorize the taking of writs of error and appeals direct to the Supreme Court are revised in section 247. Formerly capital cases went direct to the Supreme Court. Section 247 was so modified as to take from the Supreme Court its jurisdiction of capital cases, the effect being to vest the right to review on a writ of error in the Circuit Court of Appeals. This is accomplished, so far as this section is concerned, by the omission of the words 'other than capital' after the words 'and in all criminal cases.'" Note by Committee on Revision, 5 Fed. Stat. Ann. p. 644, note to section 134. Sections 504 and 505 of the Alaska Civil Code, as they stood before the enactment of the Judicial Code, are found in 31 Statutes at Large, pp. 414, 415. These sections are as follows: "Sec. 504. Appeals and writs of error may be taken and prosecuted from the final judgments of the District Court for the district of Alaska or any division thereof direct to the Supreme Court of the United States in the following cases, namely: In prize causes and in all cases which involve the construction or application of the Constitution of the United States, or in 39 SUP.CT.-14 which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question, or in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States; and that in all other cases where the amount involved or the value of the subject-matter exceeds five hundred dollars the United States Circuit Court of Appeals for the Ninth Circuit shall have jurisdiction to review by writ of error or appeal the final judgments, orders, of the District Court. Court of Appeals shall be final in all cases com"Sec. 505. The judgments of the Circuit ing to it from the District Court, but whenever the judges of the Circuit Court of Appeals may desire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in any case pending before the Circuit Court of Appeals on writ of error to or appeal from the District Court, judges may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its instruction upon the questions and propositions certified to it, and its instruction shall be binding upon the Circuit Court of Appeals." A reading of these sections shows that two classes of cases were provided for: (1) Prize cases, and cases involving the Constitution and treaties; (2) other cases wherein the amount involved exceeds $500. In the first class of cases appeal or writ of error was to this court direct. In the second class of cases the writ of error or appeal was to the United States Circuit Court of Appeals for the Ninth Circuit. Under section 505 the judgments of the Circuit Court of Appeals were made final in all cases coming to it from the District Court, with the provision that the Circuit Court of Appeals might certify propositions of law to this court in any cases pending before it upon writs of error or appeals. The like provision as to the finality in the Circuit Court of Appeals was, we think, carried into the Judicial Code in section 134 thereof, and a writ of error or appeal to this court was allowed where the federal Constitution was involved, under the provisions of section 247. In section 134, as in the Alaska Code from which we have quoted, the judgment of the Circuit Court of Ap peals was made final "in all such cases"; that is, in cases in which the section permitted appeals or writs of error to the Circuit Court of Appeals. It is true that section 134 begins by reference to cases other than those which may come to this court, and might be construed to allow appeals to the Circuit Court of Appeals for the Ninth Circuit only in cases which could not be brought directly to this court. But, bearing in mind the sources of the legislation which was enacted into the Judicial Code and the interpretation which this court has placed upon the Circuit Court of Appeals Act of 1891, we are led to the conclusion that it was not the intention of #62 Appeals. By the terms of section 134 the judgment of that court is made final. The contention that the effect of this construction is to make the Circuit Court of Ap peals a court of final jurisdiction in cases involving questions of the construction and *application of the Constitution, is met by the suggestion that this court has ample power under the Judicial Code to review Judgments of the Circuit Court of Appeals, made final in that court, by writs of certiorari. Section 240 (Comp. St. § 1217). Reaching the conclusion that the judgments of the Circuit Court of Appeals were final in these cases, it follows that the writs of error must be Dismissed. Congress to give practically two appeals in the class of cases which we are now considering. Under section 5 of the Circuit Court of Appeals Act of 1891 (26 Stat. 826, c. 517), direct appeals might be taken from the District Courts or Circuit Courts to this court in cases which involved the construction or application of the Constitution of the United States, and where such was the only matter involved an appeal could not be taken to the Circuit Court of Appeals. Carolina Glass Co. v. South Carolina, 240 U. S. 305, 318, 36 Sup. Ct. 293, 60 L. Ed. 658. But in cases wherein issues were involved affecting the *construction and application of the Constitution, as well as others upon which the case might go to the Circuit Court of Appeals under the Circuit Court of Appeals Act, two appeals were not allowed, and the judgment of the Circuit Court of Appeals was final if the case was taken there, and the jurisdic- ALASKA SALMON CO. v. TERRITORY OF tion originally invoked rested solely upon grounds which by section 6 of the Circuit Court of Appeals Act (section 128, Judicial (Argued and Submitted Jan. 20, 1919. Decided Code [Comp. St. § 1120]) made its judgment final. Macfadden v. United States, 213 U. S. 288, 29 Sup. Ct. 490, 53 L. Ed. 801; Robinson v. Caldwell, 165 U. S. 359, 17 Sup. Ct. 343, 41 L. Ed. 745; Loeb v. Columbia Township Trustees, 179 U. S. 472, 21 Sup. Ct. 174, 45 L. Ed. 280; American Sugar Co. v. New Orleans, 181 U. S. 277, 21 Sup. Ct. 646, 45 L. Ed. 859; Boise Water Co. v. Boise City (No. 2), 230 U. S. 98, 33 Sup. Ct. 1003, 57 L. Ed. 1409. Under the original Alaska Act, cases involving the application of the Constitution were directly reviewable in this court, and those reviewable by the Circuit Court of Appeals for the Ninth Circuit, were by the terms of the act made final in that court. The Judicial Code, which is primarily a codification of former statutes, carried the provisions of these sections into that Code with the change which made all criminal cases, capital as well as others, final in the Circuit Court of Appeals. Itow v. United States, 233 U. S. 581, 34 Sup. Ct. 699, 58 L. Ed. 1102. We think Congress, in enacting the Judicial Code, contemplated no change as to the finality of the judgments of the Circuit Court of Appeals for the Ninth Circuit in cases taken to that court from the District Court of Alaska. The plaintiff in error might have taken a writ of error from this court to the District Court. Section 247. It did not choose to do so, and as the cases involved issues other than those relating to the Constitution, sued out a writ of error from the Circuit Court of ALASKA. March 3, 1919.) No. 151. (249 U. S. 62) Error to the United States Circuit Court of Appeals for the Ninth Circuit. Action by the Territory of Alaska against the To review a judgAlaska Salmon Company. 62, 149 C. C. A. 272), affirming a judgment of ment of the Circuit Court of Appeals (236 Fed. the District Court in favor of the Territory, defendant brings error. Writ dismissed. Messrs. Warren Gregory, of San Francisco, Cal., E. S. McCord, and W. H. Bogle, both of Seattle, Wash., and George H. Whipple, of San Francisco, Cal., for plaintiff in error. Mr. George B. Grigsby, of Juneau, Alaska, for the Territory. Memorandum by direction of the Court, by Mr. Justice DAY. This action was brought in the District Court of Alaska by the Territory of Alaska to recover license taxes from the Alaska Salmon Company. Judgment was rendered in the District Court in favor of the Territory. To review that judgment a writ of error was taken from the Circuit Court of Appeals for the Ninth Circuit. The Circuit Court of Appeals affirmed the judgment of the District Court. 236 Fed. 62, 149 C. C. A. 272. A petition for a rehearing was filed, and denied. Petition for writ of certiorari to the Circuit Court of Appeals was denied in this court. 242 U. S. 648, 37 Sup. Ct. 242, 61 L. Ed. 544. PANAMA R. CO. v. BOSSE. a crowded thoroughfare in the Canal Zone. The suit was brought in the District Court of the Canal Zone. The defendant, the plain (Submitted Jan. 31, 1919. Decided March 3, tiff in error, demurred to the declaration 1919.) No. 203. (219 U. S. 41) 1. APPEAL AND ERROR QUESTION OF FACT. 1001(1)-REVIEW-trial, at which, after the evidence was in, the defendant requested the Court to direct CANAL ZONE. R. Co. v. Toppin (C. C. A.) 250 Fed. 989. The rule of master's liability for negligence of servant in the scope of his employment can [1] The main question in the case is whethbe applied to accident in the Canal Zone, in viewer the liability of master for servant familiar of change of population and sovereignty; Civ. to the common law can be applied to this Code Republic of Panama, arts. 2341, 2347, accident arising in the Canal Zone. Subordi2349, not being necessarily inconsistent with the nate to that is the one already indicated, common-law rule; the President's order of whether there can be a recovery for physiMarch 8, 1904, continuing the law then in force, cal pain. There is some slight attempt also being merely an embodiment of the rule that a to argue that the defendant's negligence was change of sovereignty does not put an end to existing private law; and the ratification of that not the immediate cause of the injury, but as order by Act Aug. 24, 1912, c. 390, not fasten- that depended upon the view that the jury ing on the zone a specific interpretation of the might take of the facts and as there was eviformer Civil Code, and not overthrowing the dence justifying the verdict, we shall confine principle previously announced by the Supreme ourselves to the two above-mentioned quesCourt of the Zone, that it would look to the tions of law. common law in the construction of the Columbia statutes. Whether defendant's negligence was the immediate cause of the injury, depending on the view the jury might take of the facts, will not be considered; there being evidence justifying the verdict. 2. COMMON LAW 14-MASTER'S LIABILITY-INJURY TO THIRD PERSONS-RULE IN [2] By the Act of Congress of April 28, 1904, c. 1758, § 2, 33 Stat. 429, temporary 3. DAMAGES 32-PHYSICAL PAIN-CANAL powers of government over the Canal Zone ZONE. were vested in such persons and were to be exercised in such manner as the President should direct. An executive order of the President addressed to the Secretary of War on March 8, 1904, directed that the power of the Isthmian Commission should be exercised under the Secretary's direction. The order contained this passage, "The laws of In Error to the United States Circuit Court the land, with which the inhabitants are familiar, and which were in force on Febof Appeals for the Fifth Circuit. ruary 26, 1904, will continue in force in the canal zone until altered or annulled by the said commission"; with power to the Commission to legislate, subject to approval by the Secretary. This was construed to keep in force the Civil Code of the Republic of Panama, which was translated into English and published by the Isthmian Canal Commission in 1905. By the Act of Congress of August 24, 1912, c. 390, § 2, 37 Stat. 560, 561 (Comp. St. § 10038): Physical pain being a substantial and appreciable part of the wrong done, allowed for in the customary compensation which the people of the Canal Zone have been awarded in their native courts, was properly considered in fixing damages for personal injury from accident arising in Canal Zone. Action by Theodore Bosse against the Panama Railroad Company. Judgment for plaintiff was affirmed by the Circuit Court of Appeals (239 Fed. 303, 152 C. C. A. 291), and defendant brings error. Affirmed. generally, and also demurred specifically to that part that claimed damages for pain. The demurrer was overruled *and there was a *Messrs. Frank Feuille, of Ancon, Canal Zone, and Jackson H. Ralston and William E. Richardson, both of Washington, D. C., for plaintiff in error. Messrs. Theodore C. Hinckley, of Panama, Canal Zone, and Joseph W. Bailey, of Washington, D. C., for defendant in error. This is an action for personal injuries and consequent suffering alleged to have been caused, on July 3, 1916, by the Railroad Company's chauffeur's negligent driving of a motor omnibus at an excessive rate of speed in "All laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and Mr. Justice HOLMES delivered the opin- sanitation of the Canal Zone and the construcion of the Court. tion of the Panama Canal are hereby ratified and confirmed as valid and binding until Congress shall otherwise provide." On these facts it is argued that the defendant's liability is governed by the Civil Code alone as it would be construed in countries For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes where the civil law prevails and that so construed the code does not sanction the application of the rule respondeat superior to the present case. But there are other facts to be taken into account before a decision can be reached. On December 5, 1912, acting under the authority of the before-mentioned Act of August 24, 1912, § 3 (Comp. St. § 10039), the President declared all the land within the limits of the Canal Zone to be necessary for the construction, etc., of the Panama Canal and directed the Chairman of the Isthmian Commission to take possession of it, with provisions for the extinguishment of all adverse claims and titles. It is admitted by the plaintiff in error that the Canal Zone at the present time is peopled only by the employés of the Canal, the Panama Railroad, and the steamship lines and oil companies permitted to do business in the Zone under license. If it be true that the Civil Code I would have been construed to exclude the de fendant's liability in the present case if the Zone had remained within the jurisdiction of Columbia it does not follow that the liability is no greater as things stand now. The President's order continuing the law then in force was merely the embodiment of the rule that a change of sovereignty does not put an end to existing private law, and the ratification of that order by the Act of August 24, 1912, no more fastened upon the Zone a specific interpretation of the former Civil Code than does a statute adopting the common law fasten upon a territory a specific doctrine of the English Courts. Wear v. Kansas, 245 U. S. 154, 157, 38 Sup. Ct. 55, 62 L. Ed. 214, Ann. Cas. 1918B, 586. Probably the general ratification did no more than to supply any power that by accident might have been wanting. Honolulu Rapid Transit & Land Co. v. Wilder, 211 U. S. 137, 142, 29 Sup. Ct. 44, 53 L. Ed. 121. In the matter of personal relations and duties of the kind now before us the supposed interpretation would not be a law with which the present "inhabitants are familiar," in the language of the President's order, but on the contrary an exotic imposition of a rule opposed to the common understanding of men. For whatever may be thought of the unqualified principle that a master must answer for the torts of his servant committed within the scope of his employment, probably there are few rules of the common law so familiar to all, educated and uneducated alike. As early as 1910 the Supreme Court of the Canal Zone announced that it would look to the common law in the construction of the Columbia statutes. Kung Ching Chong v. Wing Chong, 2 Canal Zone Sup. Ct. Rep. 25, 30, and following that announcement, in January, 1913, held that "at least so far as the empresarios of railroads are concerned" the liability of master for servant would be maintained in the Zone to the same extent as recognized by the common law. Fitzpatrick v. Panama Railroad Co., 2 Canal Zone Sup. Ct. Rep. 111, 121, 128. The principle certainly was not overthrown by the Act of 1912. It is not necessary to dwell upon the drift toward the common law doctrine noticeable in some civil law jurisdictions at least, or to consider how far we should go if the language of the Civil Code were clearer than it is. It is enough that the language is not necessarily inconsistent with the common law rule. By article 2341, in the beforementioned translation: By article 2349: "Masters shall be responsible for the damage caused by their domestics or servants, on the occasion of a service rendered by the latter to the former; but they shall not be responsible if it be proved or appear that on such occasion the domestics or servants conducted themselves in an improper manner, which the masters had no means to foresee or prevent by the employment of ordinary care and the competent authority; in such case all responsibility for the damage shall fall upon said domestics or servants." The qualification in this last article may be taken to refer to acts outside the scope of the employment. It cannot refer to all torts, for that would empty the first part of meaning. A master must be taken to foresee that sooner or later a servant driving a motor will be likely to have a collision, which a jury may hold to have been due to his negligence, whatever care has been used in the employment of the man. We are satisfied that it would be a sacrifice of substance to form if we should reverse a decision, the principle of which has been accepted by all the judges accustomed to deal with the locality, in deference to the possibility that a different interpretation might have been reached if the Civil Code had continued to regulate a native population and to be construed by native Courts. It may be that they would not have distinguished between a negligent act done in the performance of the master's business and a malicious one in which the servant went outside of the scope of that for which he was employed. But we are by no means sure that they would not have decided as we decide. At all events we are of opinion that the ruling was correct. As we do not rely for our conclu- | against the Chicago Great Western Railsion upon a *Columbia act specially concern- road Company. From a judgment of the ing the empresarios of railroads, we do not Supreme Court of Iowa, affirming judgment discuss a suggestion, made only, it is said, for plaintiff (178 Iowa, 998, 154 N. W. 1019, to show that the act is inapplicable, to the rehearing denied 157 N. W. 192), defendant effect that the charter of the Railroad Com- brings error; a second petition to rehear pany did not grant the power to operate the having been denied. Writ dismissed. omnibus line. The company was acting under the authority and direction of General Goethals and we do not understand that the defence of ultra vires is set up or could prevail. Messrs. Thomas A. Cheshire and Howard fendant in error. [3] In view of our conclusion upon the J. Clark, both of Des Moines, Iowa, for demain point but little need be said with regard to allowing pain to be considered in fixing the damages. It cannot be said with certainty that the Supreme Court of the Zone was wrong in holding that under the Civil Code damages ought to be allowed for physical pain. Fitzpatrick v. Panama Railroad Co., 2 Canal Zone Sup. Ct. Rep. 111, 129, 130; McKenzie v. McClintic-Marshall Construction Co., 2 Canal Zone Sup. Ct. Rep. 181, 182. Physical pain being a substantial and appreciable part of the wrong done, allowed for in the customary compensation which the people of the Zone have been awarded in their native courts, it properly was allowed here. Judgment affirmed. *Mr. Justice PITNEY delivered the opinion of the Court. [1] This is a writ of error directed to the court of last resort of a state since the taking effect of the Act of September 6, 1916, c. 448, 39 Stat. 726, by the second section of which section 237, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156 [Comp. St. § 1214]), was so amended that the revisory jurisdiction of this Court over the decisions of state courts, exercisable by writ of error, was confined to cases involving the validity of a treaty or statute of, or an authority exercised under the United States, the decision being against their validity, or involving the validity of a statute of, or an authority exercised under a state, on the ground of repugancy to the Constitution, treaties, or laws of the United States, the decision being in favor of their validity; and by which the final judgment or decree of a state court of last resort based upon a decision adverse Decided March 3, to a right or immunity claimed under the Constitution or a statute of the United States, previously reviewable by writ of error, was (with other kinds specified) made reviewable only in case this court, in the exercise of its discretionary authority, should require, "by writ of certiorari or otherwise," that the judgment be certified to it for review. See Phila. & Reading C. & I. Co. v. Gilbert, 245 U. S. 162, 38 Sup. Ct. 58, 62 L. Ed. 221; Ireland v. Woods, 246 U. S. 323, 328, 38 Sup. Ct. 319, 62 L. Ed. 745. The words "or otherWise" add nothing of substance to the thought expressed by the new act. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 295, 22 Sup. Ct. 452, 46 L. Ed. 546. [2] In the case before us the questions raised by the record and assignments of error relate wholly to the alleged denial by the Supreme Court of Iowa of certain rights and immunities asserted by plaintiff in error under the Act of Congress approved April 22, 1908, commonly known as the Employers' In Error to the Supreme Court of the Liability Act (35 Stat. 65 c. 149 [Comp. St. State of Iowa. §§ 8657-8665]; Act April 5, 1910, 36 Stat. 291, c. 143). Hence, under the new system Action by L. W. Basham, administrator of established by the Act of 1916, the judgment the estate of John J. Spellman, deceased, is in the class *of those that are reviewable For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (249 U. S. 164) CHICAGO GREAT WESTERN R. CO. v. BASHAM. (Submitted Dec. 19, 1918. 1919.). No. 111. 1. COURTS 391(1)-CERTIORARI. Under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), allowing review in cases in which writ of error is not permissible by certiorari or otherwise, the words "or otherwise" add nothing of substance to the thought expressed by the new act. 2. COURTS 391(1)-STATE SUPREME COURTWRIT OF ERROR OR CERTIORARI SAVING CLAUSE. O. M. Brochett, all of Des Moines, Iowa, for Messrs. George H. Carr, Fred P. Carr, and plaintiff in error. A judgment of the Iowa Supreme Court, by its subject-matter not reviewable on writ of error, within Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), is not within section 7 of the act of 1916, which saved for six months right under existing law to review judgments entered before act took effect, where, though judgment was entered before act took effect, petition for rehearing was not decided until thereafter. $165 |
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