case.

should be reduced to judgment before it | debts, must be read in connection with § could be set up in bar of a discharge. 17, limiting the operation of discharges, in

The intent of Congress in changing the which the provable character of claims for language of the act of 1867 seems to have fraud in general is recognized, by excepting been to restore the act of 1841, which, as from a discharge claims for frauds which already observed, extended the benefits of have been reduced to judgment, or which the law to every debtor who had not been were committed by the bankrupt while guilty of defalcation as a public officer or acting as an officer, or in a fiduciary capacin a fiduciary capacity, the act of 1898 addity. If no fraud could be made the basis of ing, however, to the excepted class those a provable debt, why were certain frauds ex. against whom a judgment for fraud had cepted from the operation of a discharge ! been obtained.

We are, therefore, of opinion that if a debt Some stress is laid by the supreme court originates or is "founded upon an open acof Illinois upon the punctuation of subd. count or upon a contract, express or im4, § 17, presumably upon the insertion of a plied,” it is provable against the bankrupt's comma after the word “misappropriation,” estate, though the creditor may elect to thereby indicating a severance of that which bring his action in trover, as for a fraudu. precedes from that which follows. While lent conversion, instead of in assumpsit, for we do not deny that punctuation may shed a balance due upon an open account. It some light upon the construction of a stat certainly could not have been the intention ute (Joy v. St. Louis, 138 U. S. 1, 32, 34 of Congress to extend the operation of the L. ed. 843, 852, 11 Sup. Ct. Rep. 243), we do discharge under § 17 to debts that were not think it is entitled to weight in this not provable under § 63a. It results from

In the enumeration of persons or the construction we have given the latter things in acts of Congress it has been the section that all debts originating upon an custom for many years to insert a comma open account or upon a contract, express or before the final “and” or “or” which pre- implied, are provable, though plaintiff elect cedes the last thing enumerated, apparently to bring his action for fraud. for greater precision, but without special In the case under consideration defendsignificance. So little is punctuation a part ants purchased, under the instructions of of statutes that courts will read them with the plaintiff, certain stocks, and opened an such stops as will give effect to the whole. account with him, charging him with comDoe ex dem. Willis v. Martin, 4 Term Rep. mission and interest, and crediting him with 65, 2 Revised Rep. 324; Hammock v. Farm- amounts received as margins. Subsequenters' Loan & T. Co. 105 U. S. 77, 84, 26 L. ly, and without the knowledge of the plained. 1111, 1113; United States v. Lacher, 134 tiff, they sold these stocks, and thereby conU. S. 624, 628, 33 L. ed. 1080, 1083, 10 Sup.verted them to their own use.

Without goCt. Rep. 625; United States v. Isham, 17 ing into the details of the facts, it is evi. Wall. 496, 21 L. ed. 728.

dent that the plaintiff might have sued them 2. But it is strenuously insisted by the in an action on contract, charging them with plaintiff that a claim for the conversion of the money advanced and with the value of personal property is not within the scope of the stock; or in an action of trover, based § 17, because it is not a "provable debt" upon their conversion. For reasons above within the definition of § 63a. Did the lat- given, we do not think that his election to ter section stand alone, there would be some sue in tort deprived his debt of its provable ground for saying that a claim, though character, and that, as there is nu evidence “founded upon an open account, or upon a that the frauds perpetrated by the defendcontract, express or implied,” would not be ants were committed by them in an official a provable debt, if plaintiff elected to treat or fiduciary capacity, plaintiff's

plaintiff's claim the conversion as fraudulent, and sue in tro against them was discharged by the prover, though he might have chosen to waive ceedings in bankruptcy. the tort, and bring an action for a balance The judgment of the Supreme Court of due on account. An early English case Illinois is therefore reversed, and the case (Parker v. Crole, 5 Bing. 63, 2 Moore & P. remanded to that court for further proceed. 150) is cited to the effect that the operation ingy not inconsistent with this opinion. of the discharge is determined by the election of the creditor to sue in assumpsit or

(195 U. S. 172) A like ruling was made in certain

RICARDO AMADO, Piff. in Err., cases under the bankruptcy acts of 1841 and 1867. Williamson v. Dickens, 27 N.

UNITED STATES. C. (15 Ired. L.) 259; Hughes v. Oliver, 8 Pa. 426; Bradner v. Strang, 89 N.. Y. Error to district court of the United States

for the district of Porto Rico. 299–307.

But we think that § 63a, defining provable 1. The review if the Federal Supreme Court

case,

of final judgments of the district court of the iffs, customs, and duties shall be levied, colUnited States for the district of Porto Rico lected, and paid upon all articles imported is not necessarily confined, by the act of into Porto Rico from ports other than those April 12, 1900 (31 Stat. at L. 77, 85, chap. 191), $ 35, to the class of cases therein de- of the United States which are required by scribed as those where the Constitution of law to be collected upon articles imported the United States or a treaty thereof or an into the United States from foreign counact of Congress is brought in question and the tries ;” also, that "the statutory laws of right claimed thereunder is denied, in view of the prior clause of that section, author the United States not locally inapplicable, izing such review if the case be one which, if except as hereinbefore or hereinafter otherdetermined in a territorial supreme court, wise provided, shall have the same force and may be carried up to the Federal Supreme effect in Porto Rico as in the United States, Court.

except the internal revenue laws, which, in 2. The claim in a written motion in arrest of view of the provisions of section three, shall

judgment or sentence that the indictment did not have force and effect in Porto Rico." not set forth "an offense under the statutes of the United States” is too indefinite to give 31 Stat. at L. 77, 80, chap. 191, $$ 2, 14. the Federal Supreme Court jurisdiction of a These statutes being in force, the plainwrit of error to the district court of the tiff in error, Amado, was indicted in the disUnited States for the district of Porto Rico, trict court of the United States for Porto under the act of April 12, 1900 (31 Stat, at Rico, upon the charge of having, on May L. 77, 85, chap. 191), $ 35, as of a case where the Constitution of the United States or a 28th, 1901, unlawfully received, concealed, treaty thereof or an act of Congress was and facilitated the transportation, concealbrought in question and the right claimed ment, and sale of certain specified quantithereunder denied.

ties of Holland gin, vermouth, brandy, and

Danish beer, theretofore, as the accused well [No. 33.]

knew, fraudulently imported into Porto

,

Rico, contrary to law, without the payment Submitted October 25, 1904. Decided No-to the United States of the duties imposed vember 14, 1904.

upon such articles.

The accused was duly arraigned, and IN N ERROR to the District Court of the found guilty by a jury. A motion in arrest

United States for the District of Porto of judgment having been overruled, he was Rico to review a conviction of having unlaw- sentenced to confinement in the penitentiary fully received and concealed merchandise of Porto Rico for one year and one day, and which had been imported without the pay- to pay a fine of $500. A new trial was dement of the customs duties. Dismissed for nied, and the accused sued out the present want of jurisdiction.

writ of error. The facts are stated in the opinion.

In allowing the writ the judge of the disPlaintiff in error submitted the cause on trict court expressed some doubt whether the record.

error would lie, but he resolved the doubt Assistant Attorney General Purdy for de- in favor of the defendant. fendant in error.

The government insists that the writ of

error should be dismissed for want of juMr. Justice Harlan delivered the opinion risdiction in this court to review the judgof the court:

ment below; otherwise, that the judgment The Revised Statutes of the United States should be affirmed. provide that "if any person shall fraudu- It is provided by the above act of April lently or knowingly import or bring into 12th, 1900, that the district court of the the United States, or assist in so doing, United States for Porto Rico "shall have, any merchandise, contrary to law, or shall in addition to the ordinary jurisdiction of receive, conceal, buy, sell, or in any manner district courts of the United States, jurisfacilitate the transportation, concealment, diction of all cases cognizant in the circuit or sale of, such merchandise after importa- courts of the United States, and shall protion, knowing the same to have been im- ceed therein in the same manner as a circuit ported contrary to law, such merchandise court.” 31 Stat. at L. 77, 84, chap. 191, shall be forfeited, and the offender shall be 34.

The act also provides that writs of error dollars nor less than fifty dollars, or be im- and appeals from the final decisions of the prisoned for any time not exceeding two supreme court of Porto Rico and the disyears, or both.” § 3082, U. S. Comp. Stat. trict court of the United States shall be al1901, p. 2014.

lowed and may be taken to this court "in The act of April 12th, 1900, temporarily the same manner and under the same reguproviding revenues and a civil government lations and in the same cases as from the for Porto Rico, declares, among other things, supreme courts of the territories of the that on and after its passage “the same tar- United States; and such writs of error and

fined in any sum not exceeding five thousand

or

an

V.

appeal shall be allowed in all cases where sufficient under the statute prescribing the the Constitution of the United States, or offense charged, and the objections to it were treaty thereof, or an act of Congress, is too indefinite to meet the requirements of brought in question and the right claimed the act of 1900, and make the case one thereunder is denied.” Id. § 35.

which, by that act, could be brought to this The review of the final judgment of the dis- court for review. Unless the case was one trict court of the United States for Porto in which the judgment could be reviewed Rico is not restricted to those cases in which here, then such judgment would be final, the Constitution, or a treaty of the United and not subject to review; for no case deStates, or an act of Congress is brought in termined in the United States court for question and the right claimed under Porto Rico can be carried to a circuit court it denied. This construction is too nar- of appeals. We said, in Royal Ins. Co. v. row and technical. There may be cases Martin, 192 U. S. 149, 160, 48 L. ed. 385, -certainly civil cases-in the

United 388, 24 Sup. Ct. Rep. 247, 250, that “ConStates district court for Porto Rico gress did not intend that any connection that do not involve any question aris- should exist between the United States ing under the Constitution, or a treaty, court for Porto Rico and any circuit court

act of Congress; and yet if of appeals established under the act of the case be one which, if determined in a 1891 [26 Stat. at L. 826, chap. 517, U. S. supreme court of one of the territories of Comp. Stat. 1901, p. 547].” the United States, could be brought here for The writ of error must be dismissed for re-examination, the final judgment could be want of jurisdiction in this court, and it reviewed by this court, although no right is so ordered. of a distinctly Federal nature was involved. Royal Ins. Co. v. Martin, 192 U. S. 149–60, 48 L. ed. 385-388, 24 Sup. Ct. Rep. 247;

(195 U. S. 171) Hijo v. United States, 194 U. S. 315, 320, Mrs. BEULAH SCHWEER and J. C. Nor48 L. ed. 994, 995, 24 Sup. Ct. Rep. 727.

man, Appts., See Crowley v. United States, 194 U. S. 461, 18 L. ed. 1075, 24 Sup. Ct. Rep. 731. J. C. BROWN, Trustee for G. H. Schweer, But even this test, if applied here, will not

Bankrupt. avail the accused; for the statutes regulating the appellate jurisdiction of this court Direct appeal to Federal Supreme Courtdo not authorize a review of the final judg

when jurisdiction is in issue. ment in a supreme court of one of the territories of the United States in a criminal A direct appeal from a Federal district court case like this one.

to the Supreme Court cannot be maintained Can our jurisdiction be sustained by ref

under the act of March 3, 1891 (26 Stat. at

L. 827, chap. 517, U. S. Comp. Stat. 1901, erence to the words, in the Porto Rico act,

p. 549), § 5, because the jurisdiction of the “in all cases where the Constitution of the

lower court was questioned, unless it was United States, or a treaty thereof, or an act the jurisdiction of that court as a court of of Congress, is brought in question and the the United States that was in issue, and that right claimed thereunder is denied ?” We question is certified to the appellate court. must answer this question in the negative. The nearest approach to a claim of specific

[No. 162.] right under the Constitution or a treaty of the United States, or under an act of Con- Submitted October 31, 1904. Decided Nogress, was when the accused, in his writ

vember 9, 1904. ten motion to arrest the judgment or sentence, insisted that the indictment did not

A

PPEAL from the District Court of the set forth "an offense under the statutes of United States for the Eastern District the United States." But that language of Arkansas to review a decree requiring the amounted to nothing more, in legal effect, payment to the trustee in bankruptcy of a than a plea of not guilty, or a demurrer up- sum of money as a part of the assets of the on the general ground that the indictment bankrupt's estate. Dismissed for want of did not state enough to show an offense. jurisdiction. It was not an assertion of any particular The facts are stated in the opinion. right under the Constitution, or under any Messrs. Daniel W. Jones, Harry H. Mytreaty, or under an act of Congress, which ers, and U. 8. Bratton for appellants. would be denied to him if the prosecution Messrs. Robert E. Wiley and George B. was sustained.

His contention was only Pugh for appellee. that he was not subject to criminal prosecution by reason of anything set forth in the THE CHIEF JUSTICE: This was a sumindictment. The indictment was plainly 'mary proceeding in the district court of the

United States for the eastern district of authority levying the tax, and shall be levied Arkansas, in bankruptcy, requiring the pay

and collected under general laws,” which is ment to the trustee in bankruptcy of the

carried out in Ga. Laws 1898, No. 150, 88 1, 2,

authorizing a tax on all the taxable property sum of $2,000 as part of the assets of the

of the state, and § 16, which requires tax. bankrupt's estate. In return to a rule, one payers to return the number of shares of of the respondents alleged that he had paid stock in foreign corporations which they the money over to the other, and denied the jurisdiction of the court. The other, Mrs. Schweer, denied that she had or ever had

[No. 20.] had any money belonging or due to the estate, and denied jurisdiction. The matter Argued October 25, 1904. Decided November was heard before a referee, who made find

14, 1904. ings of fact and conclusions of law, and ordered the return of the money. It was then ON.WRIT. of. Certiorari to the United earried to the district court and there heard States Circuit Court of Appeals for the de novo.

The district court sustained the Fifth Circuit to review a decree which afreferee, and entered decree for the payment firmed a decree of the Circuit Court for the of the money to the trustee. Thereupon an Northern District of Georgia enjoining the appeal was taken directly to this court on comptroller general of that state from colthe ground that the case fell within the lecting a tax on shares of stock in a foreign first of the classes of cases enumerated in 8 corporation. Reversed. 5 of the judiciary act of March 3, 1891 See same case below, 54 C. C. A. 672, 117 [26 Stat. at L. 827, chap. 517, U. S. Comp. Fed. 1007. Stat. 1901, p. 549]. But that class only in- The facts are stated in the opinion. cludes cases where the question is as to Messrs. Boykin Wright and John C. the jurisdiction of courts of the United Hart for petitioner. States as such, and the question has to be Messrs. Joseph B. Cumming, Alexancertified. That was not the question raised der C. King, Bryan Cumming, and King, here, and none such was certified. And it Spalding, & Little for respondents. is settled that the district court had jurisdiction to determine whether any adverse Mr. Justice Holmes delivered the opinion claim to the money was asserted at the time of the court: the petition was filed. Mueller v. Nugent, This case comes here on certiorari to the 184 U. S. 1, 46 L. ed. 405, 22 Sup. Ct. Rep. circuit court of appeals, that court having 269; Louisville Trust Co. v. Comingor, 184 affirmed, per curiam, a decree of the circuit U. S. 18, 46 L. ed. 413, 22 Sup. Čt. Rep. court enjoining the comptroller general of 293.

Georgia from collecting a tax for the year If the court erred in retaining jurisdic- 1900. 116 Fed. 669, 54 C. C. A. 672, 117 Fed. tion on the merits, the remedy was by peti- 1007. In view of the conclusion to which we tion to the circuit court of appeals, under have been driven, it is enough to say that the § 246 of the bankruptcy law [30 Stat. at question presented is whether shares of stock L. 553, chap. 541, U. S. Comp. Stat. 1901, p. in the Western Railway of Alabama, an Ala3432). Holden v. Stratton, 191 U. S. 115, bama corporation, held by the Georgia Rail48 L. ed. 116, 24 Sup. Ct. Rep. 45.

road & Banking Company, a Georgia corporaAppeal dismissed.

tion, are taxable as property of the latter, by the state of Georgia, under its Constitution

and statutes. The defendants in error, the (195 U. S. 219)

plaintiffs below, are lessees of the Georgia WILLIAM A. WRIGHT, Comptroller Gen- corporation, and are bound to reimburse the eral, Petitioner,

latter for the tax, if it has to be paid. Tak

ing into account the decision in Kidd v. AlaLOUISVILLE & NASHVILLE RAILROAD bama, 188 U. S. 730, 47 L. ed. 669, 23 Sup.

COMPANY and Atlantic Coast Line Com. Ct. Rep. 401, the power of the state to tax pany.

the shares is not denied, so far as the Consti

tution of the United States is concerned, but Taxation—of shares of stock in foreign cor- it is argued that the state has not attempted poration.

to use that power by its present Constitu

tion and laws. Shares of stock in a foreign corporation, held The Constitution of Georgia provides that

by a domestic corporation, are taxable as the “all taxation shall be uniform upon the same property of the latter, under the mandate of class of subjects, and, ad valorem on all the Georgia Constitution that "all taxation shall be uniform upon the same class of sub-property subject to be taxed within the terjects, and ad valorem on all property subject ritorial limits of the authority levying the to be taxed within the territorial limits of the 'tax, and shall be levied and collected under

v.

.

general laws.” Code of 1895, $ 5883. The which the property is taxed within the state, words "within the territorial limits” plainly and it hardly would be contended that this qualify “subject to be taxed." The Consti- wise moderation is unconstitutional. It even tution further makes void all laws exempt has been thought that a similar constitution ing property from taxation, other than the forbade taxation of both capital and stock. property therein enumerated, which does People ex rel. Burke v. Badlam, 57 Cal. 594, not include this stock. $ 5886. Following 601. But, from the point of view of the tax. these requirements the general tax act for payer, it does not matter whether all of his 1899 and 1900, Laws of 1898, No. 150, $$ 1, double taxation is done in one state or half in 2, p. 22, authorizes a tax on all of the taxable one and half in another. He suffers the same property of the state.

injustice. And, as manifestly the clearest The natural inference from the foregoing right to tax belongs to the state where the language is that the comptroller general was railroad has its tracks, every principle of bound to collect this tax. It is true that it justice and patriotism would require the was said, in a case decided before the date of same abstinence from taxing stocks of the the present Constitution, that stock in rail. railroads of neighboring states that is pracroads outside the state was not taxable in tised with regard to those of the taxing state Georgia, the reason offered being that such -in this case Georgia-itself. stock is really but so many shares of the The difficulty with this argument is that railroad's property, and that that property the Georgia Constitution requires the taxais real estate, for the most part at least, and tion of all property subject to be taxed in taxable by the state in which the road lies. Georgia. And while it may be that the conWright v. Southwestern R. Co. 64 Ga. 783, stitutional requirement is sufficiently com799. This reason is shown by later decisions plied with when the land and chattels which to be an insufficient ground for a claim of give value to the stock pay a tax, without anconstitutional right, and the language of the other tax on the stock, there is much more case probably does not represent adequately difficulty in saying that the words are satisthe present opinion of the supreme court, al fied if stock is left untaxed when the land though the passage is cited in the later of and chattels cannot be reached. Probably the the two following cases : Georgia State Constitution does not go further than to reBldg. & L. Asso. v. Savannah, 109 Ga. 63, 69, quire one tax on all attainable sources of 35 S. E. 67; People's Nat. Bank v. Cleveland, value, even if it permits more. People eso 117 Ga. 908, 913, 915, 44 S. E. 20.

rel. Burke v. Badlam, 57 Cal. 594, 601. But If we look to the construction adopted by it certainly seems intended to tax once, at the legislature, there is no doubt as to that. least, all property which can be come at in The Code, after defining personalty as prop- any way. San Francisco v. Fry, 63 Cal. 470. erty movable in its nature, continues: A tax in another state is no tax for the pur"Stocks representing shares in an incorposes of the state of Georgia. Kidd v. Alaporated company holding lands, or a fran- bama, 188 U. S. 730, 732, 47 L. ed. 669, 672, chise in or over lands, are personalty.” § 23 Sup. Ct. Rep. 401; Dwight v. Boston, 12 3070. The act of 1884–1885, touching re- Allen, 316; Seward v. Rising Sun, 79 Ind. turns of property for taxation, No. 457, § 2,351; Dyer v. Osborne, 11 R. I. 321, 23 Am. p. 30, enacted in terms “that personal prop- Rep. 460; McKeen v. Northampton, 49 Pa. erty shall be construed, for purposes of tax- 519, 88 Am. Dec. 515. ation, to include

all stocks and se- Putting the case at the lowest, the abovecurities, whether in corporations within this cited section of the Constitution was adopted state or in other states, owned by citizens of in the interest of the state as a tax-collector, this state, unless exempt," etc. It is argued and authorizes, if it does not require, a tax on one side and denied on the other that this on the stock. In pursuance of the Constitusection was repealed by the Code; but wheth- tion, the law of 1898, under which this tax er it was or not, it equally may be invoked is demanded, contains the following: “In for the purpose of interpretation, at least. addition to the questions now propounded to We do not understand and cannot believe that taxpayers by the tax-receivers, questions the supreme court of the state would deny shall be framed by the comptroller general the power of the legislature under the pres to reach all property upon which a tax is im. ent Constitution to tax stock.

posed by this act, and especially the followThe argument against the tax is that the ing questions: • Thirtieth-How many Constitution of Georgia is satisfied if all the shares of stock did you own on the day fixed lands and goods in the state are taxed once, for the return of property for taxation issued and that the appearance of the same capital by corporations located without this state? in two forms, technically distinct, ought not Thirty-first-What was the gross nominal to be laid hold of as an excuse for two taxes. value thereof? Thirty-second-What was It is admitted that no such double taxation the fair market value thereof?” Laws of is enforced with regard to corporations of 1898, No. 150, $ 16, p. 36. This plainly con