assault, or a murder,—and subject the same | whether the offense for which an officer or person to a punishment, under the state soldier is being tried is, in every substanlaws, for a misdemeanor or felony. That tial respect, the same offense for which he either or both may (if they see fit) punish had been previously tried. We will not such an offender, cannot be doubted. Yet it therefore attempt to formulate any rule by cannot be truly averred that the offender which every conceivable case must be has been twice punished for the same of solved. But, passing by all other questions fense; but only that by one act he has com- discussed by counsel, or which might arise mitted two offenses, for each of which he on the record, and restricting our decision is justly punishable. He could not plead to the above question of double jeopardy, the punishment by one in bar to a convic- we adjudge that, consistently with the tion by the other; consequently, this court above act of 1902, and for the reasons stathas decided, in the case of Fox v. Ohio, 5 ed, the plaintiff in error, a soldier in the How. 432, 12 L. ed. 222, that a state may Army, having been acquitted of the crime punish the offense of uttering or passing of homicide, alleged to have been committed false coin, as a cheat or fraud practised on by him in the Philippines, by a military its citizens; and, in the case of the United court of competent jurisdiction, proceeding States v. Marigold, supra, that Congress, in under the authority of the United States, the proper exercise of its authority, may could not be subsequently tried for the punish the same act as an offense against same offense in a civil court exercising authe United States." thority in that territory. This is sufficient to dispose of the present case.

It is clear that the cases above cited are not in point here. The government of the United States and the governments of the several states, in the exercise of their respective powers, move on different lines. The government of the United States has no power, except as expressly or by necessary implication has been granted to it, while the several states may exert such powers as are not inconsistent with the Constitution of the United States nor with a republican form of government, and which have not been surrendered by them to the general government. An offense against the United States can only be punished under its authority and in the tribunals created by its laws; whereas, an offense against a state can be punished only by its authority and in its tribunals. The same act, as held in Moore's Case, may constitute two offenses, one against the United States and the other against a state. But these things cannot be predicated of the relations between the United States and the Philippines. The government of a state does not derive its powers from the United States, while the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount. So that the cases holding that the same acts committed in a state of the Union may constitute an offense against the United States and also a distinct offense against the state do not apply here, where the two tribunals that tried the accused exert all their powers under and by authority of the same government, that of the United States.

It may be difficult at times to determine

V.

MAX DREY, Charles D. Bernheimer, and
Meyer A. Bernheimer, Executors of the
Last Will and Testament of Isaac Bern-
heimer, Deceased, Plffs. in Err.,
THEODORE R. CONVERSE, Receiver of
the Minnesota Thresher Manufacturing
Company, Deft. in Err. (No. 279.)
Corporations-stockholder's liability.

1. A domestic corporation formed for the purchase of the capital stock, evidences of indebtedness, and assets of another domestic corporation, and for the further purments and machinery, is one organized for pose of manufacturing and selling implea purpose other than that of carrying on any kind of manufacturing or mechanical business, and is therefore not within the exception as to the liability of stockholders made by Minn. Const. art. 10, § 3, in favor of corporations of that kind. Constitutional law-impairing contract obligations-change of remedy.

2. The contractual obligations arising out of Minn. Gen. Stat. 1894, chap. 76, adopted to enforce the liability of stock

holders prescribed by Minn. Const. art. 10, The actions were brought (January 28, § 3, are not impaired by Minn. Gen. Laws 29, 1904) by Theodore R. Converse as re1899, chap. 272, enacted to make the rem-ceiver of the Minnesota Thresher Manufacedy more effectual, because, while under turing Company, a corporation of the state of Minnesota, to enforce an alleged stockholders' liability under the Constitution and laws of the state of Minnesota. The court below held the executors of Simon Bern

the old law stockholders who could not be reached by personal service were immune from liability, under the new law they need not necessarily be served with process in the action in which the assessment is made, or because the expenses incident to the en-heimer and Isaac Bernheimer, both having forcement of the liability in other states died before the suits were brought, liable and against other parties are taken into as such stockholders. consideration in estimating the amount of the assessment.

Argued April 25, 26, 1907. Decided May 27, satisfied, the judgment creditor brought suit

against the thresher company for the appointment of a receiver and the enforcement WO WRITS of error to the Circuit Court of the individual liability of its stockholdof the United States for the Southerners in the district court of Washington District of New York to review judgments county, Minnesota. In that suit Theodore enforcing the liability of stockholders in a R. Converse, defendant in error in these foreign corporation. Affirmed. cases, was appointed receiver. On the petition of the receiver, for the purpose of providing funds for the payment of the expenses of the receivership in the enforce. ment of the stock liability and payment of indebtedness, an order was made, Decem

A former statute had been for some years in force in Minnesota and was the statute law of the state when the stock which concerns the controversy here was acquired by the Bernheimers. This statute was before this court in the cases of Hale v. Allinson, 188 U. S. 56, 47 L. ed. 380, 23 Sup. Ct. Rep. 244, and Finney v. Guy, 189 U. S. 335, 47 L. ed. 839, 23 Sup. Ct. Rep. 558. It was the act of 1894, General Statutes of Minnesota of that year, chap. 76, p. 1595, and is set forth in full in the margin (188 U. S. p. 60, 47 L. ed. p. 385, 23 Sup. Ct. Rep. p. 245).

ber 22, 1902, reciting, among other things, | been acquired before the passage of the that copies of an order of April 16, 1902 statute of 1899. General Laws of Minne(not in the record), had been published, sota, chap. 272, being "An Act to Provide mailed, and served as therein required, and for the Better Enforcement of the Liability that due notice of the hearing had been of Stockholders of Corporations." given to the defendant company and to each stockholder of record, as directed by the order, and, on a hearing duly had, an order of assessment of 36 per cent of the par value of each share of the capital stock of the thresher company, to wit, $18 per share, was assessed against each and every share of the capital stock, and against each and every person, corporation, or party liable as such stockholder, and each such person, corporation, or party was directed to pay to the said receiver, at his office in the city of Stillwater, Minnesota, within thirty days after the date of the order, the said sum of $18 a share; and, further, upon failure to pay said sums, the receiver was authorized to prosecute actions or proceedings against the persons liable in any court having jurisdiction in the state of Minnesota or elsewhere. On appeal to the suitor or creditors for the benefit of all credpreme court of the state of Minnesota this order was affirmed. 90 Minn. 144, 95 N. W. 767. Subsequently, as stated, these actions were brought and judgment rendered against the executors of the Bernheimers.

Mr. Laurence Arnold Tanzer for plaintiffs in error.

Messrs. William G. Wilson and C. A. Severance for defendant in error.

Mr. Justice Day delivered the opinion of

the court:

Before entering upon a discussion of the objections urged against the validity of the assessment upon stockholders which is the subject of controversy here, we may say we find no reason to disagree with the judgment of the supreme court of Minnesota in holding the Minnesota Thresher Manufacturing Company to be a corporation organized for other than the purpose of carrying on any kind of manufacturing or mechanical business, and therefore not within the exception as to stockholders' liability in favor of corporations of that kind. State ex rel. Clapp v. Minnesota Thresher Mfg. Co. 40 Minn. 215, 3 L.R.A. 510, 41 N. W. 1020; Merchants' Nat. Bank v. Minnesota Thresher Mfg. Co. 90 Minn. 144, 95 N. W. 767.

The questions made in these cases involve the right to recover upon a stockholder's liability in a Federal court in a state other than the one in which the original proceedings in liquidation were had, and under whose laws the corporation was formed, and wherein it carried on business, against stockholders in such corporate companies as the Thresher Company, where the stock had

Under that act it was held, in a series of decisions in the state of Minnesota, which were reviewed in Hale v. Allinson, that an action could only be maintained under the laws of Minnesota when brought Ly a cred

itors of the corporation, and the recovery was had for the purpose of making good any deficiency in the corporate assets for the payment of corporate debts; that the receiver could not maintain such an action outside of the jurisdiction of the court appointing him, and that the only remedy was, as stated, in a creditor's action, bringing in all the stockholders, for the realization of a fund to be proportionately distributed among the creditors in one suit.

The principal contentions in these cases are that the act of 1899, above referred to, works such a change in the contract theretofore existing by virtue of the acquisition of stock in a Minnesota corporation as to impair the obligation thereof, and, in ways to be hereafter noticed, undertakes to hold a stockholder by judgment rendered without due process of law.

The act of 1899 was before this court in the case of the First Nat. Bank v. Converse, 200 U. S. 425, 50 L. ed. 537, 26 Sup. Ct. Rep. 306, and its principal parts are set forth in the margin of the report of that case on page 428, L. ed. page 538, Sup. Ct. Rep. page 307. The act, for our purposes, may be summarized as follows:

Section 2 provides that upon the petition of the assignee or receiver, or any creditor of the corporation who has filed his claim, the district court shall appoint a time for hearing not less than thirty days nor more than sixty days from the time of filing said petition, and direct notice of the hearing to be given by publication or otherwise, in the discretion of the court; but if the petition be filed by a creditor, other than the assignee or receiver, the court shall direct notice of the hearing to be personally served on the assignee or receiver.

levied shall be conclusive upon and against all parties liable upon or on account of any shares of said stock of such corporation, whether appearing or having notice thereof or not, as to all matters relating to the amount of and the necessity for said assessment, which provision shall also apply to any subsequent assessment levied by order of the court.

Section 6 makes it the duty of the assignee or receiver, upon failure to pay as required by the order, to institute and maintain an action against any party liable upon or on account of any such shares of stock, and that actions may be maintained against each stockholder in Minnesota or in any other state or country where such stockholder or any property subject to attachment, garnishment, or other process may be found, and provides that if the assignee or receiver shall believe any such stockholder to be insolvent, or that the expense of prosecuting such action will work to the disadvantage of the estate, he shall not be required to prosecute the same, unless specifically directed so to do by the court.

Section 7 provides for further assessments in case the first proves inadequate. Section 8 extends the provisions of the act to such subsequent assessments.

Section 9 provides where two or more assessments are levied or directed, the assignee or receiver may join the causes of action against any stockholder on two or

more such assessments.

Section 10 provides that if the assignee or receiver fails to institute or prosecute the action, the creditors may petition the court to compel him to proceed under cer

Section 3 provides that the court shall consider the proofs offered by the assignee or receiver, or by any creditor or stockholder who may appear in person or by attorney as to the probable indebtedness of the corporation and the expenses of the assignment or receivership and the probable amount of assets available for the payment of such indebtedness and expenses; also as to what parties are or may be liable as stockholders, and the nature and extent of such liability. And if it shall appear to the satisfaction of such court that the ordinary assets, or such amount as may be real-tain conditions. ized therefrom in a reasonable time, will not be sufficient to pay the expenses of such assignment or receivership and the indebtedness, and it is necessary to resort to the liability of stockholders, the court shall, by order, direct and levy a ratable assessment upon all parties liable as stockholders, or upon or on account of any stock or shares of such corporation for such amount as the court, in its discretion, may deem proper, taking into account the probable solvency or insolvency of stockholders, and the probable expenses of collecting the assessment, and shall direct the payment of the amount so assessed to the assignee or receiver within such time as the court may specify in said order.

Section 11 provides for the return of the surplus, if any remain, in the hands of the assignee or receiver after paying the expenses of the assignment or receivership and the claims of the creditors, and that stockholders who have paid assessments shall, in addition to the remedy provided in the statute, be entitled to enforce contributions from stockholders who have not paid assessments.

Section 12 provides for additional judgments in case of the inadequacy of former assessments.

Section 13 excludes certain stockholders in pending actions from the operation of the act.

This statute came before the supreme court of Minnesota in Straw & E. Mfg. Co. v. L. D. Kilbourne Boot & Shoe Co. 80 Minn. 125, 83 N. W. 36. In that case it was given full consideration and its constitutionality sustained, and it was held that while the assessments upon the outstanding shares of Section 5 provides that the assessment stock in an amount necessary to meet the

Section 4 provides for an order to the assignee or receiver to proceed to collect the amount so assessed, unless it be paid within the time specified in the order, and, in default of payment, the receiver is to bring suit.

deficiency in the assets of the corporation In pursuance of that power the legislawas conclusive upon the stockholders as ture passed the act of 1894, which remained members of the corporation, yet the statute, in force until the passage of the act of properly construed, did not have the effect 1899. to deprive a person, when sued for the amount assessed on shares of stock under the visions of the act, from showing that he was not a stockholder, or that he was not the holder of so large an amount of stock as was alleged, or that he had a claim against the corporation which, in law or equity, he might be enabled to set off as against a claim for assessments, or from making any other defense personal to himself; and that the order of assessment was conclusive upon stockholders only in so far as it decided the amount of assets or liabilities of the insolvent corporation and the necessity of making an assessment upon the stock to the extent and in the amount ordered.