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Mandamus proceeding by the United States, on relation of Jennie Johnson and others, against John Barton Payne, Secretary of the Interior. A judgment dismissing the petition was affirmed by the Court of Appeals of the District of Columbia (48 App. D. C. 169), and the relators bring error. Affirmed.

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not lose his power to do the conclusive act, ordering and approving an enrollment, Garfield v. Goldsby, 211 U. S. 249, 29 Sup. Ct. 62, 53 L. Ed. 168, until the act was done. New Orleans v. Paine, 147 U. S. 261, 266, 13 Sup. Ct. 303, 37 L. Ed. 162; Kirk v. Olson, 245 U. S. 225, 228, 38 Sup. Ct. 114, 62 L. Ed. 256. The petitioners' names never were on the The Secretary was the final judge whether they should be, and they cannot be

*Mr. Charles H. Merillat, of Washington, rolls. D. C., for plaintiffs in error.

Messrs. Assistant Attorney General Nebe-ordered to be put on now, upon a suggestion that the Secretary made a mistake or that he came very near to giving the petitioners the rights they claim. Judgment affirmed.

ker, Charles D. Mahaffie, and C. Edward Wright, all of Washington, D. C., for defendant in error.

Mr. Justice HOLMES delivered the opinion of the Court.

(253 U. S. 212)

FIDELITY TITLE & TRUST CO. v. DU-
BOIS ELECTRIC CO.

(Argued March 25 and 26, 1920. Decided
June 1, 1920.)

No. 300.

ON REVERSAL OF JUDGMENT FOR PLAINTIFF NEW TRIAL SHOULD BE

GRANTED.

On reversing a judgment for plaintiff in an action for personal injury entered on a verdict, the Circuit Court of Appeals should have

This is a petition for a writ of mandamus to require the Secretary of the Interior to place the names of the petitioners upon the rolls of the members of the Creek Nation. The petition was dismissed by the Supreme Court of the District of Columbia and the judgment was affirmed by the Court of Appeals. We are not called upon to consider the antecedent facts of the petitioners' case 1. JURY 37 as all that is material can be stated in a few words. Rights as a member of the Nation depend upon the approved rolls. March 4, 1907, was fixed by statute as the time when the rolls were to be completed by the Secre-ordered a new trial. tary of the Interior and his previously existing jurisdiction to approve enrollment then 2. MUNICIPAL ceased. Act of April 26, 1906, c. 1876, § 2, 34 Stat. 137, 138. Before that date the petitioners had on file an application for enrollment, hearings had been had before the proper tribunal, a favorable report had been made to the Secretary and the Secretary had written a letter to the Commissioner to the Five Civilized Tribes, saying, "Your decision is hereby affirmed." But on the last day, March 4, 1907, the Secretary addressed another communication to the same official rescinding the

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former letter to him, and reversing his decision. It was ordered that if the petitioners' names were on the rolls they should be stricken off. The Secretary gave no reasons for his action but it is suggested that he acted under mistakes of law and fact, and it is argued that when the first letter was written the petitioners' rights were fixed.

[1, 2] The last is the only point in the case and with regard to that it is argued that this reversal of the first decision without a hearing was a denial of due process of law. It is not denied that the Secretary might have declined to affirm the decision below in the first instance, and that having been his power, the only question is when it came to an end. While the case was before him he was free to change his mind, and he might do so none the less that he had stated an opinion in favor of one side or the other. He did

CORPORATIONS

809 (1) PARTY SUSPENDING BANNER ABOVE STREET LIABLE TO TRAVELER, NOTWITHSTANDING ABSENCE OF CONTRACT.

A party suspending a political banner over a street by means of a wire cable fastened to a chimney, which was pulled down by the cable during a storm, was not relieved of liability to a traveler on the street injured by a falling brick because of the absence of any contract with him.

3. MUNICIPAL CORPORATIONS ~~ 809 (1)
PARTY SUSPENDING BANNER OVER STREET
CANNOT ESCAPE LIABILITY BY RELEASING
CONTROL.

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Where defendant suspended a banner above a street by means of a wire cable attached to a chimney on a hotel building, and handled the banner whenever it wanted to, and no one else touched it, and the party employing defendant to suspend the banner testified that he asked defendant to put it up and take it down and said he did not want to have anything to

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

DEFENDANT.

(40 Sup.Ct.)

In an action for injuries from the falling of brick from a chimney to which defendant attached a wire cable supporting a banner suspended over the street, under contract with a third party, an instruction that, even if the fall was due to negligence in putting up the banner, defendant would not be liable unless by arrangement it assumed a continuing duty to maintain the banner in a safe condition, held more favorable to defendant than it was entitled to.

do with it, it could not be said as a matter of correct the error and as it was not corrected law that defendant had stepped out of control the present writ of certiorari was granted. of the banner prior to an accident. 249 U. S. 606, 39 Sup. Ct. 290, 63 L. Ed. 799; 5. MUNICIPAL CORPORATIONS 822(2) IN Id., 249 U. S. 597, 39 Sup. Ct. 388, 63 L. Ed. ACTION FOR INJURIES FROM FALLING CHIM- 795. Of course if the judgment of the CirNEY, INSTRUCTION HELD TOO FAVORABLE TO cuit Court of Appeals was right on the merits a new trial should have been ordered. Slocum v. New York Life Insurance Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029; Myers v. Pittsburgh Coal Co., 233 U. S. 184, 189, 34 Sup. Ct. 559, 58 L. Ed. 906. But as it has been necessary to direct the record to be certified up, it is necessary also to consider the merits of the case and to determine whether the Circuit Court of Appeals was right with regard to them. Nothing turns upon the form of the plead6. LIMITATION OF ACTIONS 127(5)—OriG-ings. The evidence for the plaintiff was in INAL DECLARATION SUFFICIENT, AND AMEND- conflict with that for the defendant upon important points, but we shall state the case as the jury might have found it to be if they believed the plaintiff's evidence, as the verdict shows they did. A member of a political party requested the defendant to suspend a political banner, which he furnished, across one of the principal streets in the borough of Dubois, between the Commercial Hotel and the Deposit National Bank. He asked the defendant to put it up, take it down after the election and attend to it for him, saying that he did not want to have The defendant put anything to do with it. up the banner, at first suspending it by a

MENT DID NOT CHANGE CAUSE OF ACTION.

Where the original declaration alleged negligence in fastening a cable suspending a political banner to a chimney, and alleged that the fall of the chimney was due to such use, it was sufficient, and an amendment after the statute of limitations had run, alleging also that defendant maintained the banner, did not change the cause of action.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit.

Action by Vernon W. Pancoast against the Dubois Electric Company, which was continued by the Fidelity Title & Trust Company, ancillary administrator of the deceased plaintiff. A judgment for plaintiff was reversed by the Circuit Court of Appeals for the Third Circuit without ordering a new trial (253 Fed. 987, 165 C. C. A. 668), and plaintiff brings certiorari. Reversed, and judgment of the District Court affirmed.

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rope, but the rope breaking, substituted for it a wire cable of the defendant's, and, the plaintiff says, did so without further orders. This cable was fastened on the hotel side by taking two turns round a chimney and clamping the end. The chimney stood thirtyone inches from the edge of the cornice over the street, was twenty-one inches square at Messrs. Charles Alvin Jones and M. W. the base, and had a tin flashing from the Acheson, Jr., both of Pittsburgh, Pa., for roof inserted between the courses of brick petitioner. two or three courses above the roof. Ac

Mr. W. C. Miller, of Clearfield, Pa., for re- còrding to the plaintiff's evidence the cable spondent.

was attached above the flashing. The lower corners of the banner were attached to the buildings on their respective sides. Five *Mr. Justice HOLMES delivered the opin- days after the banner was suspended the ion of the Court.

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[1] This is an action begun by Pancoast, to recover for personal injuries, and continued after his death by the petitioner as ancillary administrator. At a former trial the plaintiff had a verdict but it was set aside and a new trial ordered by the Circuit Court of Appeals. Du Bois Electric Co. v. Fidelity Title & Trust Co., 238 Fed. 129, 132, 151 C. C. A. 205, L. R. A. 1917C, 907. At the new trial the plaintiff again got a verdict and judgment, but the Circuit Court of Appeals set them aside, this time simply reversing the judgment without ordering a new trial. 253 Fed. 987, 165 C. C. A. 668. An opportunity was allowed to that Court to

man who employed the defendant caused it to string electric lights along the wire, not otherwise interfering with the work. The same day in the afternoon, the weather being stormy, the banner dragged the chimney over and a brick struck Pancoast on the head, making a comminuted fracture of the skull. The defendant put up the banner a third time after this fall, again, the plaintiff says, without further direction, and when the election was over took it down.

[2] If these were the facts, and, except with regard to the extent of the defendant's control, they could not be disputed, manifest ly the verdict was warranted. It did not leave the defendant free from any duty to

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

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one else touched it. The defendant's employer if he told the truth not only did not intermeddle but might be found to have expressly required the defendant to take the responsibility. All the probabilities are that

Pancoast and the other travelers in the by the law. Evidently the defendant hanstreet that they had no contract with it. An dled the banner when it wanted to, and no act of this kind that reasonable care would have shown to endanger life, might have made the actor guilty of manslaughter, if not, in an extreme case, of murder. Rigmaidon's Case, Lewin, 180. See Nash v. United States, 229 U. S. 373, 377, 33 Sup. Ct. 780, 57 L. Ed. 1232; Commonwealth v. Pierce, 138 Mass. 165, 178, 52 Am. Rep. 264. defendant. The defendant got more than it The same considerations apply to civil lia- was entitled to when the jury were instructbility for personal injuries from similar ed that even if the fall was due to neglicauses that would have been avoided by rea-gence in putting up the banner, the defendSee Gray v. Boston Gas Light ant would not be liable unless by arrange

sonable care.

Jo., 114 Mass. 149, 19 Am. Rep. 324. A man

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is not free to introduce a danger *into public places even if he be under no contract with the persons subjected to the risk.

[3] It hardly is denied that there was evidence of negligence, but it was held by the Circuit Court of Appeals that the defendant's relation to the work ceased when the banner was hung, that it had no further control over it and was not liable for what happened thereafter. Of course it is true that when the presence or absence of danger depends upon the subsequent conduct of the person to whom control is surrendered, the previous possessor may be exonerated when the control is changed. Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; Murphey v. Caralli, 3 Hurlst. & Colt. 462; Thornton v. Dow, 60 Wash. 622, 111 Pac. 899, 32 L. R. A. (N. S.) 968; Glynn v. Central R. R. Co., 175 Mass. 510, 56 N. E. 698, 78 Am. St. Rep. 507; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48, 15 N. E. 84, 4 Am. St. Rep. 279. But how far this principle will be carried may be uncertain. Union Stock Yards Co. v. Chicago, Burling

such control as there was remained with the

ment it had assumed a continuing duty to

maintain the banner in a safe condition. The testimony on the two sides was contrasted and it was left to the jury to say which they would believe.

[6] As we have implied, we regard it as too plain for discussion that the plaintiff's evidence if believed warranted a finding that the defendant undertook the care of the banner while it was up. An effort is made to establish an error in allowing an amendment to the declaration after the statute of limitations had run. The declaration originally alleged negligence in the use of the chimney and that the fall was due to the use of the chimney as alleged. The amendment alleged also that defendant maintained the banner. If any objection is open it is enough to say that the original declaration was sufficient and that the amendment plainly left the cause of action unchanged. Judgment reversed.

Judgment of the District Court affirmed.

(253 U. S. 345)

V. MOR. (Argued April 23, 1920. Decided June 1, 1920.) No. 728.

1. COURTS 438-ALIEN DOMICILED IN PORTO RICO NOT ENTITLED TO SUE IN UNITED STATES DISTRICT COURT.

ton & Quincy R. R. Co., 196 U. S. 217, 223, PORTO RICO RY., LIGHT & POWER CO. 25 Sup. Ct. 226, 49 L. Ed. 453, 2 Ann. Cas. 525. And when as here the danger had been called fully into existence by the defendant it could not escape liability for the result of conditions that it alone knew, had created and had arranged to have continue, by stepping out of the control a few days before the event came to pass. Harris v. James, 45 L. J., Q. B. 545; Todd v. Flight, 9 C. B. N. S. 377; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Godley v. Hagerty, 20 Pa. 387, 59 Am. Dec. 731; Joyce v. Martin, 15 R. I. 558, 10 Atl. 620; Jackman v. Arlington Mills, 137 Mass. 277, 283; Dalay v. Savage, 145 Mass. 38, 41, 12 N. E. 841, 1 Am. St. Rep. 429; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49, 15 N. E. 84, 4 Am. St. Rep. 279. [4, 5] But it could not be said as matter of law that the defendant had stepped out of control. The facts in their legal aspect probably were somewhat hazy. Presumably the tenant of the hotel simply permitted what was done and had no other relation to it than such as might be imposed upon hir

Under Act March 2, 1917, § 41 (Comp. St. 1918, § 3803qq), giving the United States District Court for Porto Rico jurisdiction of all side are citizens or subjects of a foreign state controversies where all of the parties on either or citizens of a state, territory, or district of the United States "not domiciled in Porto Rico," the quoted clause applies to aliens as well as American citizens, and a Spanish subject domiciled in Porto Rico cannot sue a Porto Rico corporation in such court; especially as an opposite construction would be inconsistent with the spirit of article 11 of the treaty of 1898 with Spain, guaranteeing to Spaniards residing in Porto Rico the right to appear before such courts and to pursue the same course as citizens of the country to which the courts belong.

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

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3. COURTS 438-LANGUAGE IN ACT RELATIVE TO JURISDICTION OF DISTRICT COURT IN PORTO RICO CONSTRUED TO EFFECTUATE GENERAL PURPOSE.

Any doubt as to whether the clause "not domiciled in Porto Rico," in Act March 2, 1917, § 41 (Comp. St. 1918, § 3803qq), relative to the jurisdiction of the United States District Court, applies to aliens, should be so resolved as to effectuate the general purpose of Congress to curtail the jurisdiction of such court.

On a Certificate from the United States Circuit Court of Appeals for the First Cir

cuit.

Action by Adalberto Diaz Mor against the Porto Rico Railway, Light & Power Company. Judgment for plaintiff, and defendant | took the case by writ of error to the Circuit Court of Appeals for the First Circuit, which certified the question of the District Court's jurisdiction to the Supreme Court. Certified question answered in the negative.

Mr. Carroll G. Walter, of New York City, for Porto Rico Ry., Light & Power Co.

Mr. Justice BRANDEIS delivered the opinion of the Court.

Mor, a subject of the King of Spain, domiciled in Porto Rico, brought in the United

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States District Court for *Porto Rico this action at law for an amount exceeding $3,000, exclusive of interest and costs, against the Porto Rico Railway, Light & Power Company, a Porto Rico corporation having its principal place of business there. Objection to the jurisdiction of the trial court was overruled and the plaintiff recovered judgment. The case came before the Circuit Court of Appeals for the First Circuit on writ of error and that court has presented to us by certificate the question whether the District Court had jurisdiction. The answer depends upon the construction to be given to the following provision contained in section 41 of the so-called Jones Act of March 2, 1917, c. 145, 39 Stat. 951, 965 (Comp. St. 1918, § 3803qq), which provides a civil government for Porto Rico:

"Said District Court shall have jurisdiction of all controversies where all of the parties ⚫ on either side of the controversy are citizens or subjects of a foreign state or states, or citizens of a state, territory, or district of the United States not domiciled in Porto Rico, wherein the matter in dispute exceeds, exclusive of interest or cost, the sum or value of $3,000.

[1] It is clear under this act that if Mor, instead of being a Spanish subject, had been a citizen of one of the United States, the court would not have had jurisdiction, since he was domiciled in Porto Rico. The precise question, therefore, is whether the restriction of jurisdiction to cases where all the parties on either side of the controversy are "not domiciled in Porto Rico" applies to aliens as well as to American citizens.

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The judicial system of Porto Rico prior to annexation to the United States comprised a Supreme Court and district trial courts of general jurisdiction and municipal courts. The proceedings in all of these courts were conducted in the Spanish language and according to the forms of the civil law. By section 33 of the Foraker Act, April 12, 1900, c. 191, 31 Stat. 77, 84 (Comp. St. § 3784), which established what was intended *as a temporary civil government for the island, these insular courts were continued, with the proviso that the judges of the Supreme Court should be appointed by the President, and the judges of the inferior courts by the Governor. By section 40 of the Jones Act (Comp. St. § 3803q) the jurisdiction of these courts and the forms of procedure in them were further continued.

for Porto Rico" provided for by section 41

The "District Court of the United States

of the Jones Act was, in effect, a continuation of the District Court of the United States provided for by section 34 of the Foraker Act, as amended by the Act of March 2, 1901, c. 812, sec. 3, 31 Stat. 953 (Comp. St. § 3786). Both acts conferred upon the court jurisdiction of all cases cognizable in Circuit or District Courts of the United States; the court is by both directed to proceed in the same manner as those courts; and in both there is an express provision that the pleadings and all proceedings shall be conducted in the English language. But the Jones Act greatly abridged the jurisdiction. The jurisdictional amount, which by the amendatory act of March 2, 1901, had been lowered to $1,000, was raised to $3,000. And, whereas by the amendment of 1901 the court had been given jurisdiction in case either party was a citizen of the United States, even if he was domiciled in Porto Rico, the Jones Act limited the jurisdiction dependent on American citizenship to the cases where the Americans were not domiciled in Porto Rico. Whether it likewise

1 Act of March 2, 1901, c. 812, § 3: "That the jurisdiction of the District Court of the United States for Porto Rico in civil cases shall, in addition to that conferred by the act of April twelfth, ninewhere the parties, or either of them, are citizens of teen hundred, extend to and embrace controversies the United States, or citizens or subjects of a foreign state or states, wherein the matter in dispute exceeds, exclusive of interest or costs the sum or

value of one thousand dollars."

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limited jurisdiction dependent on alienage the civil law. This might not only prove is the question submitted to us.

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very inconvenient to Spanish residents, but would be inconsistent with the spirit of article 11 of the treaty of 1898 between Spain and the United States (30 Stat. 1754, 1760), under which Spaniards residing in Porto Rico were guaranteed "the right to appear before such courts and to pursue the same course as citizens of the country to which the courts belong."

while denying under similar circumstances jurisdiction where a domiciled American is a party.

[2, 3] *No reason appears why the clause "not domiciled in Porto Rico" should not be read as applying to the entire phrase "citizens or subjects of a foreign state or states, or citizens of a state, territory, or district of the United States." When several words are followed by a clause which is applicable as much to the first and other words as to Congress could not have intended to give the last, the natural construction of the lan- the District Court jurisdiction of any controguage demands that the clause be read as ap-versy to which a domiciled alien is a party plicable to all. United States v. Standard Brewery, 251 U. S. 210, 218, 40 Sup. Ct. 139, 64 L. Ed. -; Johnson v. Southern Pacific Co., 196 U. S. 1, 18-19, 25 Sup. Ct. 158, 49 L. Ed. 363, and cases cited. Furthermore, special reasons exist for so construing the clause in question. The act manifests a general purpose to greatly curtail the jurisdiction of the District Court. If the application of the clause were doubtful, we should so construe the provision as to effectuate the general purpose of Congress. American Se-NORTH AMERICAN TRANSPORTATION & curity & Trust Co. v. District of Columbia, 224 U. S. 491, 32 Sup. Ct. 553, 56 L. Ed. 856; Inter-Island Steam Navigation Co. v. Ward, (Argued April 30, 1920. Decided June 1, 1920.)

242 U. S. 1, 37 Sup. Ct. 1, 61 L. Ed. 113. But it seems to us clear that it applies alike to aliens and to American citizens.

Suit may be brought in the District Court if either party has the jurisdictional qualifications; that is, the act confers upon such party not merely the right to sue but the liability to be sued. In the population of Porto Rico there are many aliens and these are largely Spaniards.2 If the limitation "not

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domiciled in Porto Rico" were *inapplicable to aliens the result would work peculiar hardship and assuredly unintended discrimination against these Spaniards. A Spanish subject domiciled in Porto Rico might be sued by an American domiciled in Porto Rico or a Porto Rican in the District Court, where the proceedings are conducted in the English language and according to the forms of Anglo-American law; whereas an American domiciled in Porto Rico could be sued only in the insular courts where the proceedings are conducted in the Spanish language and according to the procedure and processes of

The question submitted is answered
No.

(253 U. S. 330)

UNITED STATES v. NORTH AMERICAN
TRANSPORTATION & TRADING CO.

TRADING CO. v. UNITED STATES.

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2. UNITED STATES 60-ONLY SECRETARY OF WAR IS AUTHORIZED TO TAKE LAND FOR MILITARY RESERVATION.

The power to take lands for barracks and troop quarters under Appropriation Act March 3, 1899, May 26, 1900, was conferred on the Secretary of War, in view of Act Aug. 1, 1888, § 1 (Comp. St. § 6909), and Act Aug. 18, 1890, 1 (Comp. St. § 6911), so that the right to recover for private property taken for such purposes accrued, not when physical possession of the property was taken by an army officer not authorized by the Secretary of War, but only when the Secretary of War first approved the action.

"It is somewhat surprising to find that 886,442 of the actual population are classed as Spaniards, and only 4,324 as foreigners." Report on the Island of Porto Rico by Henry C. Carroll, Special Commis-3. sioner, October 6, 1899, p. 11.

"Spanish-born were 7,690, or 55 per cent. of the total foreign born. The United States contributed 1,069." Commercial Porto Rico, Department of Commerce and Labor, April, 1907, p. 11.

"Of the total number of males 21 and over in 1910, 238,685 were of Porto Rican citizenship, 4,112 were of Spanish citizenship, 1,836 were citizens of the United States, and 2,385 were citizens of other foreign countries." Statistics for Porto Rico, 13th Census, p. 24.

UNITED STATES 69-SAVING OF PRIVATE RIGHTS IN ORDER TAKING MILITARY LAND GIVES RIGHT TO COMPENSATION.

A statement in the President's order that land taken for military purposes was reserved, subject to any legal rights existing to any of the land, refers only to the right to compensation of owners of private property within the reservation, which had already been taken by the army officers.

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