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Messrs. Herbert C. Smyth and Frederic C. Scofield, both of New York City, for defendant in error.

and by the New York courts. What the proper construction of the treaty is, is the only question argued in this court.

The only provisions of the act of September

Mr. Justice CLARKE delivered the opinion 6, 1916, applicable to the review of such a of the Court.

The Erie Railroad Company was sued in the state of New York by the defendant in error to recover damages for the claimed negligent causing of the death of Stephen Mistschook, who was a subject of the Emperor of Russia and who left surviving him a wife and three children resident in Russia. After denying negligence and liability, the company averred that it had settled the claim with the Russian consul resident at New York, who, acting under authority of the treaties between the United States and the Emperor of Russia, and in behalf of the widow and next of kin of the deceased, had executed in due form of law and, for the consideration of $400, had delivered a release of all claims and demands arising from the death complained of.

The claim at the trial was not, and it is not now, that the Russian treaty of 1832 (8 Stat. 444, 448, art. 8) in terms gave the consul the power to make the settlement relied upon, but that under the treaty of the United States with Spain, invoked through the "favored nation" paragraph of the Russian treaty, he had power to make it.

case as we have here are these:

"A final judgment * * * in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty 串 * * of * ** the United States, and the decision is against their (its) validity may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. *

*

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Since, as we have seen, the plaintiff in er ror has not assailed the validity of the Russian treaty but on the contrary has claimed under an asserted construction of it, which was denied, it is clear that the case cannot come into this court by writ of error, under The trial court held that the Russian conthe statute quoted. At most the railroad sul had no authority to make the settlement company asserted a right under the treaty pleaded or to give a valid release and the which was denied to it by the state courts judgment recovered by the plaintiff (the de- and this under the plain reading of the statfendant in error), affirmed by the proper Ap-ute could give it a right to review here only pellate Division of the Supreme Court (Hamilton v. Erie R. Co., 170 App. Div. 901, 154 N. Y. Supp. 1125) and by the Court of Appeals (219 N. Y. 343, 114 N. E. 399, Ann. Cas. 1918A, 928) is argued as if properly before us for review on writ of error.

by writ of certiorari.

The distinction between assailing the validity of a treaty or of a statute and relying upon a special construc*tion of either is patent and has been the subject of such full discussion by this court that it should not now be considered either doubtful or obscure. Baltimore & Potomac R. R. Co. v. Hopkins, 130 U.

Since the judgment which the plaintiff in error seeks to review was entered on December 12, 1916, the record presents the qués-S. 210, 9 Sup. Ct. 503, 32 L. Ed. 908; District tion whether writ of error or writ of certiorari was the appropriate remedy for bringing the case into this court under section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087), as amended by act of Congress, approved September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. 1916, § 1214).

of Columbia v. Gannon, 130 U. S. 227, 9 Sup. Ct. 508, 32 L. Ed. 922; Louisville & Nashville R. R. Co. v. Louisville, 166 U. S. 709, 715, 17 Sup. Ct. 725, 41 L. Ed. 1173; United States v. Lynch, 137 U. S. 280, 285, 11 Sup. Ct. 114, 34 L. Ed. 700; South Carolina v. Seymour, 153 U. S. 353, 358, 14 Sup. Ct. 871, 38 L. Ed. From the statement of the case which we 742; United States ex rel. Taylor v. Taft, have made it is clear that the railroad com- 203 U. S. 461, 464, 27 Sup. Ct. 148, 51 L. Ed. pany has relied throughout the litigation up-269: Stadelman et al. v. Miner et al., 246 U. on the validity of the treaty of the United S. 544, 38 Sup. Ct. 359, 62 L. Ed. 875. States with Russia and that it has claimed For want of jurisdiction the writ of errights under a construction of that treaty which were denied by the defendant in error

ror is

Dismissed.

*372

(248 U. S. 363)

MISSOURI, K. & T. RY. CO. v. SEALY et al. (Argued and Submitted Dec. 18, 1918. Decided

1. COURTS

Jan. 7, 1919.)

No. 90.

396(4)—Error to STATE COURT -FEDERAL QUESTION-TIME TO RAISE.

Claim that the case is governed by federal law, raised after the case had twice been passed on by state Supreme Court, is too late to allow of error to such court.

2. COMMERCE 10-CARRIERS-STATE LAWS.
Prior to the Carmack Amendment (Comp.
St. 1916, §§ 8604a, 8604aa), rights of parties,
where carrier, without goods being delivered to
it for shipment, issued bills of lading to ship-
per's order, on which another made advances,
were governed by state law.
3. CARRIERS

23-CARMACK AMENDMENT— RETROACTIVE OPERATION.

The Carmack Amendment (Comp. St. 1916, 8604a, 8604aa) does not apply to any cause of action arising long before its passage.

ings v. Railway Co., 84 Kan. 479, 114 Pac. 1077, 41 L. R. A. (N. S.) 500. Thereafter, in 1913, the railroad presented the claim that the transaction was governed by the federal law, and that, by it, the defendant was not liable. The Supreme Court of Kansas, apParently as a matter of state practice, de

clared that the contention came too late to be

considered, and entered judgment for the plaintiff. Hutchings, Sealy & Co. v. Missouri, K. & T. R. Co., 98 Kan. 225, 158 Pac. 62. The case comes here on writ of error under section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156 [Comp. St. 1916, § 1214]).

[1-3] The federal question was not seasonably raised. Bonner v. Gorman, 213 U. S. 86, 91, 29 Sup. Ct. 483, 53 L. Ed. 709; Louisville & Nashville Railroad Co. v. Woodford, 234 U. S. 46, 51, 34 Sup. Ct. 739, 58 L. Ed. 1202. But it is also unsubstantial. Prior to the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 584, 595 [Comp. St. 1916, §§ 8604a, 8604aa]) the rights of the parties were governed by

In Error to the Supreme Court of the State state law (Boston & Maine Railroad v. Hookof Kansas.

er, 233 U. S. 97, 109-110, 34 Sup. Ct. 526, 58

1915D, 593; Pennsylvania R. R. Co. V.

Action by John Sealy and others, partners L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. as Hutchings, Sealy & Co., against the Mis-Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L souri, Kansas & Texas Railway Company. Judgment for plaintiffs was affirmed by the Supreme Court of Kansas (98 Kan. 225, 158 Pac. 62), and defendant brings error. missed.

Dis

Ed. 268; Chicago, Milwaukee & St. Paul Ry. Co. v. Solan, 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688), and the Carmack Amendment does not apply, as the cause of action, if any, arose six years before the passage of that

Mr. Joseph M. Bryson, of St. Louis, Mo., act. for plaintiff in error.

Messrs. Maurice H. Winger and Arthur Miller, both of Kansas City, Mo., for defendants in error.

*Mr. Justice BRANDEIS delivered the opinion of the Court.

The writ of error is dismissed.

(248 U, S. 289)

FLEXNER v. FARSON et al.
(Submitted Dec. 18, 1918. Decided Jan. 7,
1919.)
No. 101.

CONSTITUTIONAL LAW 309(3)—JUDGMENT
818(2)-PARTNERSHIP 204-DUE PRO-
CESS-SERVICE ON AGENT OF NONRESIDENT
PARTNER-LIEN.

A judgment against nonresident individuals,

In June, 1900, the Missouri, Kansas & Texas Railway Company issued bills of lading to shipper's order covering 27 carloads of grain to be shipped from Kansas City, Missouri, to Galveston, Texas. No grain was in fact delivered to it for shipment; but before the fraud was discovered, the alleged shipper transferred the bills of lading to Hutchings, Sealy & Co., who made advances thereon. The advances were not fully repaid, and in 1905 they brought suit against the railroad in a state district court of Kansas. The railroad defended on the ground that since the bills of lading had been delivered in Missourl, the transaction was governed by the Missouri law and that under the law of that state, the railroad was not liable. For more than eight years the record contained no suggestion of a federal question, the case having meanwhile been passed upon twice by the Supreme Court of Kansas. Railway Co. v. Action by Bernard Flexner against John Hutchings, 78 Kan. 758, 99 Pac. 230; Hutch- Farson, Jr., and others, partners as Farson,

though members of a partnership, doing business in the state, on service under Civ. Code Prac. Ky. § 51, authorizing summons on their agent in charge of the business, is void for want of due process; as citizens of one state cannot, like a foreign corporation, be prohibited from doing business in another state, and so do not impliedly consent to be bound by the prescribed

service.

In Error to the Supreme Court of the State of Illinois.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 39 SUP.CT.-7

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Son & Co. Judgment for defendants was af- | sociation v. Phelps, 190 U. S. 147, 23 Sup. Ct. firmed by the Supreme Court of Illinois (268 707, 47 L. Ed. 987. But the consent that is Ill. 435, 109 N. E. 327, Ann. Cas. 1916D, 810), said to be implied in such cases is a mere and plaintiff brings error. fiction, founded upon the accepted doctrine

Affirmed.

Mr. J. S. Laurent, of Louisville, Ky., for that the States could exclude foreign corpora

plaintiff in error.

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tions altogether, and therefore could estab-
lish this obligation as a condition to letting
them in.
How. 404, 15 L. Ed. 451; Pennsylvania Fire
Lafayette Ins. Co. v. French, 18
Ins. Co. v. Gold Issue Mining & Milling Co.,
243 U. S. 93, 96, 37 Sup. Ct. 344, 61 L. Ed. 610.

*Mr. Justice HOLMES delivered the opinion The State had no power to exclude the deof the Court.

Judgment affirmed.

fendants and on that ground without going This is an action brought by the plaintiff farther the Supreme Court of Illinois rightly in error upon a judgment for money rendered held that the analogy failed, and that the by a Kentucky Court. The declaration alleges Kentucky judgment was void. If the Kenthat the transaction in respect of which the tucky statute purports to have the effect atjudgment was rendered took place at Louis-tributed to it, it cannot have that effect in the ville, Kentucky, and that at that time the de- present case. New York Life Ins. Co. v. Dunfendants were doing business there as part-levy, 241 U. S. 518, 522, 523, 36 Sup. Ct. 613, ners through Washington Flexner, who was 60 L. Ed. 1140. and continued to be their agent until the time of this suit. It further alleges that the defendants were non-residents and that the service of summons of the Kentucky suit was made upon Washington Flexner in accordance with a Kentucky statute (Civ. Code Prac. § 51) authorizing it to be made in that way. The defendant William Farson was the only one served with process in the present action and he pleaded that the defendants in the former suit did not reside in Kentucky, 1. COURTS 385(12)-REVIEW IN CRIMINAL were not served with process and did not appear; that Washington Flexner was not their agent at the time of service upon him; that the Kentucky statute relied upon was unconstitutional; that the Kentucky Court had no

(248 U. S. 349)

UNITED STATES v. COMYNS et al. (Argued Nov. 4 and 5, 1918. Decided Jan. 7, 1919.) No. 235.

CASE-CONSTRUCTION OF STATUTE.

Decision sustaining demurrer to indictment held based on a construction of Criminal Code, $ 215 (Comp. St. 1916, § 10385), as to using mails to execute a scheme to defraud, and so to allow review under Criminal Appeals Act

jurisdiction, and that its judgment was void (Comp. St. 1916, § 1704) by error to District

under the Constitution of the United States. The plaintiff demurred to the pleas, and stood upon his demurrer when it was overruled, whereupon judgment was entered for the defendants. There was an appeal to the Supreme Court of the State on the ground that the Court below did not give full faith and credit to the Kentucky judgment and erred in holding the Kentucky statute as to service unconstitutional. The Supreme Court affirmed the judgment below. 268 Ill. 435, 109 N. E. 327, Ann. Cas. 1916D, 810. The same errors are alleged here.

Court.

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3. POST OFFICE 35 - USE OF MAILS
"SCHEME TO DEFRAUD BY FRAUDULENT
PROMISES."

A scheme to get money by making promises which there is no intention to perform is one to defraud by fraudulent promises, within Criminal Code, § 215 (Comp. St. 1916, § 10385), as to using the mails to execute the scheme.

In Error to the District Court of the United

ton.

It is argued that the pleas tacitly admit that Washington Flexner was agent of the firms at the time of the transaction sued upon in Kentucky, and the Kentucky statute States for the Western District of Washingis construed as purporting to make him agent to receive service in suits arising out of the business done in that State. On this construction it is said that the defendants by doing business in the State consented to be bound by the service prescribed. The analogy of suits against insurance companies based upon such service is invoked. Mutual Reserve Fund Life As

Edward M. Comyns and another were indicted for violation of Criminal Code, § 215. Demurrer to the indictment was sustained, and the United States brings error.

versed.

Re

Mr. Assistant Attorney General Kearful, for the United States.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

350

Messrs. C. A. Keigwin and William R. An- | whereas, as defendants and each of them drews, both of Washington, D. C., for de- knew, defendants could not locate said parfendants in error. ties and could not secure for them the preference right to purchase the land mentioned

*Mr. Justice PITNEY delivered the opinion for $2.50 per acre by filing said application, of the Court.

This is a review under Criminal Appeals Act March 2, 1907, 34 Stat. 1246, c. 2564 (Comp. St. 1916, § 1704), of a judgment of the District Court sustaining a demurrer to an indictment found under section 215 of the Criminal Code (Act March 4, 1909, 35 Stat. 1088, 1130, c. 321 [Comp. St. 1916, § 10385]). That section provides:

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"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * shall, for the purpose of executing such scheme or artifice, or attempting so to do, place, or cause to be placed, any letter * in any post office, or station thereof, * to be sent or delivered by the postoffice establishment of the United States * shall be fined, *" etc.

The indictment contains four counts, but a recital of the first will suffice, since the others adopt by reference that part of its averments upon which is raised the question we have to determine. Omitting formal matters, that count recites that Comyns and Byron had devised a scheme and artifice to defraud nine persons named and divers other persons to the grand jurors unknown, that is to say, to obtain from them and each of them their moneys and property by means of divers false and fraudulent pretenses and representations and to induce the victims to give to the defendants and each of them such moneys and property, with the intent on the part of the defendants and each of them to convert the same to their own use, which scheme was as follows: That defendants should represent that Comyns was a lawyer, admitted to practice before the United States Land Office, and that Byron was a locator, "and that they could locate said parties and secure for them the preference right to pur

"and the agreement, as to the land, to be performed in consideration of the payment of said fee was for the purpose of securing the payment of said initial fee and for the purpose of delaying the said parties to be defrauded from demanding the repayment of said initial fee and for the purpose of prerenting said parties to be defrauded from discovering the fact that they had been defrauded and disclosing said fact to others, and said defendants and each of them intended to appropriate to their own use and the use of each of said defendants said initial fee, and did not intend to refund said initial fee or any part thereof if said parties to be defrauded failed to get title to said land in accordance with said agreement." Then follows an averment that defendants made use of the mails for the purpose of executing the scheme by causing a letter inclosing a timber and stone application to be sent by mail to the Register of the Land Office.

At first the demurrer was overruled by the

District Court, but at the same time it was ordered that the government should furnish a bill of particulars "stating the reason why the land in question could not be secured by the applicants." A bill of particulars was filed setting up, in brief, that the lands could not be secured under the Timber and Stone Act (a) because they were covered by a list of selections made by the state of Washington in lieu of school sections 16 and 36; and (b) because the statements to be made in the application as to the character of the land were to be made on information and belief, and not from the applicant's personal knowledge after examination of the land as required by the rules of the general land office. The defendants moved to strike out the bill of particulars, and this was treated by the District Court as a petition for a rehearing of the demurrer to the indictment as amplified by the bill of particulars; and thereupon the demurrer was sustained.

[1] Notwithstanding a contention to the contrary, it seems to us that the decision was based upon a construction of section 215 of the Criminal Code, and hence that we have jurisdiction under the Criminal Appeals Act. United States v. Patten, 226 U. S. 525, 535, 33 Sup. Ct. 141, 57 L. Ed. 333, 44 L. R. A. (N. S.) 325; United States v. Nixon, 235 U. S. 231, 235, 35 Sup. Ct. 49, 59 L. Ed. 207.

chase from the United States of America under the Timber and Stone Act of June 3, 1878 [20 Stat. 89, c. 151], certain land within the Western district of Washington for the sum of $2.50 per acre, by filing an application to purchase under said act, and that the said property was worth more than that sum," and that they would agree with the parties to be defrauded that they would charge each of them a fee for locating them and securing for them the title to said land, a part of the fee, called the initial fee, to be paid at the time of making the agreement, and the [2] *In reviewing the judgment we shall balance when title to the land was secured, disregard the bill of particulars, since this "and that if said parties to be defrauded fail- | forms no part of the record for the purposes ed to get title to said land, then the said de- of the demurrer. Dunlop v. United States, fendants and each of them would refund to 165 U. S. 486, 491, 17 Sup. Ct. 375, 41 L. Ed. said parties to be defrauded the amount of 799. the fee already so paid to said defendants";

[3] In brief, the indictment avers that

*353

the scheme of defendants was to induce their intended victims to part with their money by representing to them that certain land (not described except generally as being located in the Western district of Washington) could be purchased from the United States under the Timber and Stone Act for less than its real value if the victims would employ defendants to secure such land and would pay a part of the proposed fee in advance; the defendants agreeing at the same time that in case of nonsuccess the money thus prepaid would be refunded; whereas in truth, as defendants well knew, for some reason not specified they could not carry out the agreement, and the purpose of making it was to secure the payment of the initial fee by the intended victims, which defendants intended to appropriate to their own use and did not intend to refund in case of a failure to secure title in accordance with the agreement. In our opinion such a scheme is a "scheme or artifice to defraud by means of false or fraudulent pretenses, representations, promises" within the meaning of section 215 of the Criminal Code. To use the mails in order to carry out a scheme for getting money by the making of promises or agreements which, whether known to be impossible of performance or not, there is no intention to perform, is a forbidden use of the facilities of the post office department. Durland v. United States, 161 U. S. 306, 313, 16 Sup. Ct. 508, 40 L. Ed. 709. The District Court erred in holding otherwise, and its judgment is

Reversed.

(248 U. S. 294)

or

CITY OF ENGLEWOOD v. DENVER & S.
P. RY. CO.
(Submitted Dec. 19, 1918.

1919.)

No. 106.

Mr. L. F. Twitchell, of Denver, Colo., for plaintiff in error.

Mr. Fred Farrar, of Denver, Colo., for defendant in error.

*Mr. Justice HOLMES delivered the opinion of the Court.

This is a bill to compel the defendant to arrange for passengers on its road to be transported without extra fare over the line of the Denver City Tramway Company from a point of connection and in like manner for *passengers on that company's line to be carried over the defendant's line without additional charge. The defendant operates a street railway under a franchise granted by the plaintiff while a town. By section 6 of the ordinance making the grant the grantees were allowed to charge certain fares provided that they should make the arrangement stated above. The defence pleaded against being required to comply with these terms is that the Denver City Tramway Company charges five cents, the maximum fare allowed, for its part of the service, so that the defendant gets nothing, and that the defendant filed a schedule of rates with the State Public Utilities Commission which now are the defendant's established rates and charges. On demurrer the Supreme Court of the State held that this town, at least, deriving its powers from legislative grant, could make no contract of this sort that was not subject to control by the legislature, that the Public Utilities Commission had been authorized by the legislature to regulate the matter in controversy, that it had done so, and that this proceeding should be dismissed.

Of course we do not go behind the decision of the Court that the matter in controversy was subject to regulation by the Commission and was regulated by it in due form if the State could confer that power. The plaintiff Decided Jan. 7, says that the State could not conter it since to do so would impair the obligation of a contract. Upon that point we agree with the Court below that clearer language than can

CARRIERS 12(9)-CONSTITUTIONAL LAW be found in the State laws and this ordinance 135-IMPAIRING OBLIGATION OF CONTRACTCARRIER'S FRANCHISE.

Though a town ordinance, granting, under a law of Colorado, a street railway franchise, allowed certain fares on condition that transfers

were given to the line of another company, held, the state, without impairing the obligation of contract, could empower the Public Utilities Commission to regulate the matter of fares.

must be used before a public service is withdrawn from public control. Milwaukee Electric Ry. & Light Co. v. Railroad Commission of Wisconsin, 238 U. S. 174, 180, 35 Sup. Ct. 820, 59 L. Ed. 1254. The cases generally are cases where the railroad or other company sets up contract rights against the city. Whether when the railroad consents a legislature would not have all the power that the

In Error to the Supreme Court of the State city could have to modify even a constitu

of Colorado.

Suit by the City of Englewood against the Denver & South Platte Railway Company. Judgment for plaintiff was reversed by the Supreme Court of Colorado (62 Colo. 229, 161 Pac. 151), and plaintiff brings error. Dismissed.

tionally protected contract need not be considered here. If we deal with the present case on the merits there seems to be no sufficient reason why the writ of error should not be dismissed. It is giving the plaintiff the benefit of a very great doubt if we assume that the question on the merits was saved. Writ of error dismissed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

206

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