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nesses testified to the exact per cent of palm oil used in the preparation of the package. One said that "the article so manufactured was according to a formula used in the course of business, with the exception of the palm oil. It is what we call the 'Daisy grade,'-the lower grade. It is a substitute for butter." Another testified that "a very small proportion of palm oil is necessary only to produce what is considered a desirable color in oleomargarine. The color of palm oil is a reddish yellow. Its natural color is such that it may be used to make oleomargarine or white substances to look like butter." Further, the defendant offered quite an amount of testimony, which was received by the court, and afterwards, on motion, stricken out as irrelevant and immaterial. Included in this was that of the secretary of the manufacturer, who testified that "before July 1, 1902, we used only the Wells-Richardson improved butter color to produce an artificial coloration. Since that date we have used the same article. We have used some palm oil. We used that for a few days only, until the Commissioner of Internal Revenue ruled that its use would subject the product to the 10-cent tax.”
tion Congress included not only those sub- | stamp of of a cent a pound." Other witstances which, entering into the composition of oleomargarine, make it suitable for food, and, so to speak, form its body, but also others used only for coloring. After naming some it adds specifically, "and other coloring matter." The purpose in so including "coloring matter" is obvious. It was to prevent excluding from the operation of the statute anything in its nature oleomargarine by the addition of a substance not in reality an ingredient, but serving substantially only the purpose of coloring the product to cause it to look like butter. The fact that one of the ingredients of this compound is palm oil does not show that such oil does anything else than color the product composed of other ingredients, and if it does substantially only this, it is rightfully styled an artificial coloration. Otherwise the proviso practically nullifies the body of the section. For "other coloring matter" includes all coloring matter; at least, all of the nature of those named; and hence the addition of any coloring matter would produce only a natural, and not an artificial, coloration, and thus relieve the product from the 10-cent tax. It will be noted that the regular tax imposed upon oleomargarine by § 8 is 10 cents a pound, the exception thereto being stated in the proviso, and a party who claims the benefit thereof must make it clear that his oleomargarine is within its scope. That exception is "when oleomargarine is free from artificial coloration that causes it to look like butter of any shade of yellow." Bear-stantially only to color the product cannot ing in mind, also, that one of the purposes of this legislation was to prevent the sale of oleomargarine as and for butter, it must be held that when any substance, although named as a possible ingredient of oleomargarine, substantially serves only the function of coloring the mass, and so as to cause | judgment is affirmed. the product to "look like butter of any shade of yellow," it is an artificial coloration.
The verdict of a jury is conclusive upon a question of fact unless plainly against the evidence. The same weight, as we have said, must be given to the finding of a court, and upon the testimony received without objection a finding that this palm oil served sub
be disturbed. Indeed, the fact was made certain by the testimony offered by the defendant, although that testimony was afterwards stricken out by the court as immaterial.
We see no error in the record, and the
The CHIEF JUSTICE, Mr. Justice Harlan, and Mr. Justice Peckham dissented.
(195 U. S. 194) ANDREW J. AIKENS, Plff. in Err.,
STATE OF WISCONSIN. (No. 3.)
STATE OF WISCONSIN. (No. 4.)
Whether the Commissioner of Internal Revenue has all the authority which is in terms committed to him by § 14 need not be determined. The letter containing his ruling was admitted in evidence without objection. Irrespective of such ruling, and upon the other testimony, the judge who tried the case, and whose decision must be considered as equivalent to the verdict of a jury, could rightfully have found that this package of oleomargarine was artificially colored by the small amount of palm oil used in its manufacture. A witness testified that he called at the place of business of the defendant, "and found this 10-pound package of oleomargarine, which had been colored with palm oil to a very decided shade of yellow, like natural June butter, bearing a tax-paid' Rights under U. S. Const. 14th Amend. are
MELVIN A. HOYT, Plff. in Err.,
STATE OF WISCONSIN. (No. 5.)
Constitutional law-validity of legislation punishing combining to effect malicious injury.
not infringed by the provisions of Wis. Stat. 1898, § 4466a, for the punishment of combining for the purpose of wilfully or maliciously injuring another in his business, as applied to a combination of newspaper managers maliciously to injure a rival paper by agreeing to refuse space to advertisers who should pay the increased rate fixed by such rival, except at a corresponding increase, but to permit those to advertise in their papers at the old rate who should refuse to pay their rival the new rate, whatever may be the force of the constitutional objection if the statute be construed to embrace combining to effect wilful, as distinguished from malicious, injury.
with unlawfully combining together with the intent of wilfully and maliciously injuring The Journal Company, a corporation, and certain persons named, stockholders and officers of the company, in their trade and business. It was alleged that the company was publisher of a newspaper in Milwaukee, and had notified an increase of about 25 per cent in its charges for advertising, and that thereupon the plaintiffs in error, who were managers of other newspapers in the same place, in pursuance of their combination, and with the intent of wilfully, maliciously, and unlawfully injuring The Journal Company and the others named, agreed as follows: If any person should agree to pay the increased rate to The Journal Company, then he should not be permitted to advertise in any of the other three newspapers except at a corresponding increase of rate; but if he should refuse to pay the Journal Company the increased rate, then he should be allowed to advertise in any of the other three papers at the rate previously charged. It was alleged that this conspiracy was carried out, and that much damage to the business of The Journal Company ensued.
The defendant Hoyt demurred to this information, setting up the 14th Amendment. Aikens and Huegin filed pleas which admitted the combination and intent of injuring The Journal Company, and the resulting damage, but alleged that the combination was entered into in trade competition, and that the parties had the right to make it under the 14th Amendment. The state demurred to the pleas. The demurrer of Hoyt was overruled; those of the state were sustained. The defendants were sentenced and the judgment of the trial court was affirmed by the supreme court of the state on the authority
Mr. Lafayette M. Sturdevant for de- of an earlier decision between the same parfendant in error in No. 5.
Mr. Justice Holmes delivered the opinion of the court:
ties, reported in 110 Wis. 189, 62 L. R. A. 700, 85 N. W. 1046.
The statute, it will be observed, punishes combining for the purpose of wilfully or maThese are three writs of error to the su- liciously injuring another in his business. preme court of Wisconsin, brought to set If it should be construed literally, the word aside convictions and sentences of the plain- "wilfully" would embrace all injuries intiffs in error, the defendants below, upon in- tended to follow from the parties' acts, alformations filed by the district attorney. though they were intended only as the neces113 Wis. 419, 89 N. W. 1135. The ground sary means to ulterior gain for the parties of the writs is that the proceedings violated themselves. Taken in that way the word the rights of the plaintiffs in error under would hit making a new partnership, if it the 14th Amendment of the Constitution of was intended thereby to hurt someone's else the United States. The informations were business by competition. We shall not conbrought under the Wisconsin statutes of sider whether that branch of the statute, so 1898, § 4466a, which impose imprisonment construed, could be sustained, and express or fine on "any two or more persons who no opinion about it. The supreme court of shall combine for the purpose of Wisconsin has intimated that a narrower inwilfully or maliciously injuring another interpretation will be adopted, and in the his reputation, trade, business, or profession, by any means whatever," etc. The plaintiffs in error were severally charged
present case we have to deal only with the other branch, depending on the word "maliciously," as we shall explain in a moment.
the last-quoted word we must take as in- | tended to add something to the word "wilfully," and we can do so only by taking it in its true sense. We interpret "maliciously injuring" to import doing a harm malevolently, for the sake of the harm as an end in itself, and not merely as a means to some further end legitimately desired. Otherwise the phrase would be tautologous, since a wilful injury is malicious in the sense familiar to declarations and indictments, where, indeed, the word means no more than foreseen, or even less than that. A death is caused of malice aforethought if, under the circumstances, known to the actor, the probability of its ensuing from the act done is great and manifest according to common experience. Com. v. Pierce, 138 Mass. 165, 178, 52 Am. Rep. 264; 1 East, P. C. 262. See also Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 613.
The informations alleged a combination for the purpose of wilfully and maliciously injuring others, and therefore brought the case within the latter branch of the statute, if there are two, and if "or" in the act is not taken to mean "and." It is true that the plan is set forth, and some argument was spent on whether that plan might or might not be an instrument of ultimate gain. But while that question may have been open when the state court was discussing the evidence warranting a commitment, in 110 Wis. 189, 62 L. R. A. 700, 85 N. W. 1046, none such is open here. The malevolent purpose is alleged, it is admitted by the demurrer, it is not sufficiently denied by the pleas, whatever we may conjecture would have been done if counsel had had this decision before them. A purely malevolent act may be done even in trade competition!
, A. C. 587), others may depend upon the end for which the act is done. Moran v. Dunphy, 177 Mass. 485, 487, 52 L. R. A. 115, 83 Am. St. Rep. 289, 59 N. E. 125; Plant v. Woods, 176 Mass. 492, 51 L. R. A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011; Squires v. Wason Mfg. Co. 182 Mass. 137, 140, 141, 65 N. E. 32. See cases cited in 62 L. R. A. 673. It is no sufficient answer to this line of thought that motives are not actionable, and that the standards of the law are external. That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen. Quinn v. Leathem , A. C. 495, 524, 70 L. J. P. C. N. S. 76, 85 L. T. N. S. 289, 50 Week. Rep. 139, 65 J. P. 708.
Whether, at common law combination would make conduct actionable which would be lawful in a single person, it is unnecessary to consider. Quinn v. Leathem , A. C. 495, 70 L. J. P. C. N. S. 76, 85 L. T. N. S. 289, 50 Week. Rep. 139, 65 J. P. 708. We are aware, too, that a prevailing opinion in England makes motives immaterial, although it is probable that in Allen v. Flood , A. C. 1, 94, 67 L. J. Q. B. N. S. 119, 77 L. T. N. S. 717, 46 Week. Rep. 258, 62 J. P. 595, the jury were instructed, as in Temperton v. Russell , 1 Q. B. 715, 719, 62 L. J. Q. B. N. S. 412, 4 Reports, 376, 69 L. T. N. S. 78, 41 Week. Rep. 565, 57 J. P. 676, in such a way that their finding of malice meant no more than that the defendant had acted with foresight of the harm which he would inflict, as a means to an end. Quinn v. Leathem , A. C. 495, 514. However these things may be, we have said enough to show that there is no anomaly in a statute, at least which punishes a combination such as is charged here. It has been held that even the free use of land by a single owner for purely malevolent purposes may be restrained constitutionally, although the only immediate injury is to a neighboring landowner. Rideout v. Knox, 148 Mass. 368, 2 L. R. A. 81, 12 Am. St. Rep. 560, 19 N. E. 390. Whether this decision was right or not, when it comes to the free
We come, then, to the question whether there is any constitutional objection to so much of the act as applies to this case. It has been thought by other courts as well as the supreme court of Wisconsin that such a combination, followed by damage, would be actionable even at common law. It has been considered that, prima facie, the intentional infliction of temporal damages is a cause of action, which, as a matter of sub-dom of the individual, malicious mischief is stantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 613, , A. C. 25, 61 L. J. Q. B. N. S. 295, 66 L. T. N. S. 1, 40 Week. Rep. 337, 7 Asp. Mar. L. Cas. 120, 56 J. P. 101. If this is the correct mode of approach, it is obvious that justifications may vary in extent, according to the principle of policy upon which they are founded, and that while some-for instance, at common law, those affecting the use of land-are absolute (Bradford v. Pickles' 326.
a familiar and proper subject for legislative repression. Com. v. Walden, 3 Cush. 558. Still more are combinations for the purpose of inflicting it. It would be impossible to hold that the liberty to combine to inflict such mischief, even upon such intangibles as business or reputation, was among the rights which the 14th Amendment was intended to preserve. The statute was assumed to be constitutional in Arthur v. Oakes, 25 L. R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 310, 325,
Mr. Justice White, dissenting:
But if all these general considerations be for which no justification could be offered admitted, it is urged, nevertheless, that the and those which were taken out of the jusmeans intended to be used by this particular tification by the motive with which they combination were simply the abstinence were made. We see no sufficient reason to from making contracts; that a man's right believe that the court will go farther, or so to abstain cannot be infringed on the construe the act in such a way as to raise ground of motives; and further, that it car- questions which we need not go into here. ries with it the right to communicate that Therefore it is unnecessary to consider intent to abstain to others, and to abstain in whether, on a more literal construction, the common with them. It is said that if the portion dealing with malicious intent could statute extends to such a case it must be be separated from that which deals with the unconstitutional. The fallacy of this argu- purpose of merely wilful injury, and saved, ment lies in the assumption that the stat- even if the latter were held to go too far. ute stands no better than if directed against Probably the two phrases will be read tothe pure nonfeasance of singly omitting together and the statute made unquestionable contract. The statute is directed against a as a whole. series of acts, and acts of several,-the acts of combining, with intent to do other acts. "The very plot is an act in itself." Mulcahy V. Queen, L. R. 3 H. L. 306, 317. But an act which, in itself, is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the WILLIAM FAIN, John Fain, Robert Fain, Constitution is sufficient to prevent the punishment of the plot by law.
It was urged farther that to make a right depend upon motives is to make it depend upon the whim of a jury, and to deny the right. But it must be assumed that the constitutional tribunal does its duty, and finds facts only because they are proved. The power of the legislature to make the fact of malice material we think sufficiently appears from what we already have said.
Finally, it is argued that the supreme court of Wisconsin would hold that the statute extends to acts. of which the motives were mixed, and which were done partly from disinterested malevolence and partly from a hope of gain. If so, it is said, the statute would be open to all the objections at which we have hinted in dealing with the word "wilfully." The supreme court did use some language which looked that way, but we consider it to have decided that the statute would be confined to combinations with intent to do wrongful harm. 110 Wis. 193, 260, 62 L. R. A. 700, 85 N. W. 1046. Thus limited, on whatever ground, the statute would punish only combinations of a kind
Not being able to concur in the conclusion of the court that the opinion of the supreme court of Wisconsin has affixed to the statute of that state a much narrower meaning than the text of the statute imports, and thinking, on the contrary, that not only such text, but the construction of the statute adopted by the supreme court of Wisconsin, operates to deprive the citizen of a lawful right to contract, protected by the 14th Amendment, I dissent.
(195 U. S. 165)
HUGH STEVENSON, Matilda C. Alloway,
Appeal-finality of decree of circuit court of appeals.
The jurisdiction of a Federal circuit court over
a controversy between citizens of different states, claiming under grants from different states, depends entirely upon the diversity of citizenship, withing the meaning of the rule that makes the decrees of a circuit court of appeals final in cases in which diversity of citizenship is the sole ground of original jurisdiction, since Congress, in the various judiciary acts, has only conferred original jurisdiction on the circuit courts over controversies of this character when the parties are citizens of the same state.
move a cloud upon the title to real property which the parties claimed under grants respectively from the states of Tennessee and North Carolina. Dismissed for want of jurisdiction.
the Congress may, from time to time, ordain and establish." And by § 2 that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties
See same case below, 53 C. C. A. 467, 116 made, or which shall be made, under their Fed. 147.
Statement by Mr. Chief Justice Fuller: This was a bill filed by Stevenson and others, citizens and residents of New York and Rhode Island, against Fain and others, citizens and residents of North Carolina and Georgia, in the circuit court of the United States for the eastern district of Tennessee, to remove a cloud upon the title to a body of wild lands lying adjacent to the boundary between Tennessee and North Carolina.
authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects. 2. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be
Complainants claimed title under grants from the state of Tennessee, and alleged that the lands lay wholly in Monroe county, Ten-party, the Supreme Court shall have original nessee. Defendants alleged that the lands lay wholly within the county of Cherokee, in the state of North Carolina, and that they were lawfully granted to their ancestor by that state.
The issue involved the true boundary line between North Carolina and Tennessee. The circuit court held that the lands lay in the state of North Carolina, and that the title was in defendants, and dismissed the bill. Thereupon an appeal was taken to the circuit court of appeals for the sixth circuit, and, on hearing, the decree of the circuit court was affirmed. 53 C. C. A. 467, 116 Fed. 147.
From the decree of the circuit court of appeals this appeal was prosecuted.
jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make."
The Supreme Court alone "possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it" (United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259), but the jurisdiction of the circuit courts depends upon some act of Congress (Turner v. Bank of North America, 4 Dall. 8, 10, 1 L. ed. 718, 719; M'Intire v. Wood, 7 Cranch, 504, 506, 3 L. ed. 420, 421).
The use of the word "controversies" as in contradistinction to the word "cases," and the omission of the word "all" in respect of Messrs. T. S. Webb, Hu. L. McClung, controversies, left it to Congress to define Charles Seymour, and L. M. G. Baker for the controversies over which the courts it appellants. was empowered to ordain and establish Messrs. John W. Green and Samuel G. might exercise jurisdiction, and the manShields for appellees. ner in which it was to be done. By the 11th section of the judiciary act Mr. Chief Justice Fuller delivered the of September 24, 1789, it was provided that opinion of the court:
If the jurisdiction of the circuit court was dependent entirely on diversity of citizenship, the decree of the circuit court of appeals was final, and this appeal cannot be maintained. The contention of appellants is that it was not so dependent because jurisdiction also existed in that the parties claimed under grants from different states, to which it is replied that, under the Constitution and laws, the circuit courts are not vested with jurisdiction on that ground except when the parties are citizens of the same state.
By 1 of article 3 of the Constitution it is provided that "the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as
the circuit courts of the United States should "have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state." [1 Stat. at L. 78, chap. 20.]
In Bank of United States v. Deveaux, 5 Cranch, 61, 85, 3 L. ed. 38, 44, Mr. Chief Justice Marshall said:
"The judicial power of the United States, as defined in the Constitution, is dependent, 1st, on the nature of the case; and, 2d, on