Page

Page Wilson, In re, 140 U. S. 575, 11 Sup. Ct. Wood, In _re, 140 U. S. 278, 11 Sup. Ct. 870, 35 L, Ed. 513. 26 738, 35 L. Ed. 505..

460 Wilson v. Gaines, 103 U. S. 417, 26 L. Ed. Woodruff v. Parham, 8 Wall. 123, 19 L. 401 472 Ed. 382.

191 Wilson v. The Ohio, Gilpin, 505, Fed. Cas. Woods v. Freeman, 1 Wall. 398, 17 L. Ed. No. 17,825... 603 543

268 Wilson v. Standefer, 184 U. S. 399, 22 Woodworth v. Spring, 4 Allen, 321.

56 Sup. Ct. 384, 46 L. Ed. 612..

760 | Worcester v. Georgia, 6 Pet. 515, 541, 8 Winkler v. Railroad Co., 4 Penn. (Del.) 80, L. Ed. 483, 495.

130 53 Atl. 90.

410 | Worcester v. Railroad Co., 109 Mass. 112 595 Winnebago, The, 73 C. C. A. 295, 141 Fed. World's Columbian Exposition v. U. S., 56 945

512
Fed. 657, 6 C. C. A. 71.....

479 Winona & St. P. R. Co. v. Blake, 91 U. S. Wright v. Denn, 10 Wheat, 204, 239, 6 L. 180, 24 L. Ed. 99... 591 Ed. 303, 312.....

565 Wiscart v. Dauchy, 3 Dall. 321, 1 L. Ed. Wright v. Skinner, 136 Fed. 694.

395) 619

504 W. W. Montague & Co. v. Lowry, 193 U. Wiscomb v. Cubberly, 51 Kan. 580, 33 S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608. 66 Pac. 320...

81 Wyatt v. Wallace, 67 Ark. 575, 55 S. W. Wisconsin v. Insurance Co., 127 U. S. 265,

1105

.97, 99 8 Sup. Ct. 1370, 32 L. Ed. 239.

661 Wylie v. Coxe, 14 How. 1, 14 L. Ed. 301.. 52 Wisconsin C. R. Co. v. Forsythe, 159 U. Wyman v. Halstead, 109 U. S. 654, 3 Sup. S. 46, 54, 15 Sup. Ct. 1020, 40 L. Ed. 71, Ct. 417, 27 L. Ed. 1068...

715 73

252 Wisconsin C. R. Co. v. U. S., 164 U. S. Yaites v. Gough, Yelv. 33..

160 190, 17 Sup. Ct. 45, 41 L. Ed. 399...... 325 Yarbrough, Ex parte, 110 U. S. 651, 4 Wisconsin, M. & P. R. Co. v. Jacobson, 179

Sup. Ct. 152, 28 L. Ed. 274..

12 U. S. 287, 302, 21 Sup. Ct. 115, 120, 45 Yates v. Bank, 206 U. S. 158, 27 Sup. Ct. L. Ed. 194, 201,.

.592, 595 638, 51 L. Ed. (Neb.) 105 N. W. Wisconsin & M. R. Co. v. Powers, 191 U. 287 ..

....640, 646 S. 379, 24 Sup. Ct. 107, 48 L. Ed. 229... 23 Yates v. Milwaukee, 10 Wall. 497, 504, Wisner, Ex parte, 203 U. S. 449, 27 Sup. 505, 19 L. Ed. 984, 986, 987.

377 Ct. 150, 51 L. Ed. 150..

731 Yazoo & M. V. R. Co. V. Adams, 180 U. Witherspoon v. Duncan, 4 Wall. 217, 18 L. S. 1, 21 Sup. Ct. 240, 45 L. Ed. Ed. 312..

267 395

....475, 676 Wolcott v. Railroad Co., 5 Wall. 681, 18 L. York Mfg. Co. v. Cassell, 201 U. S. 341, Ed. 689...

252 352, 26 Sup. Ct. 481, 50 L. Ed. 782, Wolsey v. Chapman, 101 U. S. 755, 25 L.

785

599, 685, 723 Ed. 915.

252 Young v. Amy, 171 U. S. 179, 18 Sup. Ct. 802, 43 L. Ed. 127.

278

CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES SUPREME COURT.

OCTOBER TERM, 1906.

V.

TERRITORY OF NEW MEXICO EX REL. , pute, where the validity of a treaty or stat. E. J. MCLEAN & COMPANY, Appt. ute of, or authority exercised under, the

United States is involved. I DENVER & RIO GRANDE RAILROAD | Commerce—duties on imports or exports. COMPANY.

4. Only articles imported from, or ex. Appeal—from territorial supreme court-ported to, foreign countries, are within the

purview of U. S. Const. art. 1, § 10, forbidFederal question.

1. A controversy as to the constitu- ding any state, without the consent of Con. tional right of a territorial legislature to gress to lay any imposts or duties on impass a specified law under the brc id legis- ports or exports except what may be absolative power conferred by U. S. Rev. Stat. lutely necessary for executing its inspection

laws. § 1851, involves the validity of an authority exercised under the United States within Evidence-judicial notice.

5. Judicial notice will be taken by the the meaning of the act of March 3, 1885 (23 Stat. at L. 443, chap. 355, U. S. Comp. Stat. Supreme Court of the United States of the 1901, p. 572), § 2, defining the appellate fact that, in the territory of New Mexico jurisdiction of the Supreme Court of the and in other similar parts of the West, United States over the supreme courts of cattle are required to be branded in order the territories. *

to identify their ownership, and that they Appeal—from territorial supreme court-run at large in great stretches of country,

with no other means of determining their amount in dispute. 2. Some sum or value must be in dis- separate ownership than by the brand or

marks upon them. pute in order to sustain the appellate juris

Commerce-territorial diction of the United States Supreme Court

regulation-inspec

tion law. over the supreme courts of the territories

6. The prohibition against the receipt which is conferred by the act of March 3, 1885 (23 Stat. at L. 443, chap. 355, U. S? | by common carriers for transportation beComp. Stat. 1901, p. 572), $ 2, without re- yond the limits of the territory of hides

which do not bear the evidence of inspection gard to the sum or value in dispute, in cases involving the validity of a treaty or statute required by N. M. act of March 19, 1901, is of, or authority exercised under, the United a valid exercise of the police power, and

does not—there being no congressional legis. States.

lation covering the subject and making a Appeal—from territorial supreme courtamount in dispute.

different provision-violate the commerce 3. A suit in which the matter in disclause of the Federal Constitution, although

hides not offered for transportation are not pute is the right of consignors to have a consignment shipped by a common carrier required to be inspected after thirty days in to its destination involves a valuable right, slaughterhouses, and not at all outside of measurable in money, and therefore satis the slar-ghterhouses, and although the incifies the requirements of the act of March dental effect of the statute may be to levy 3, 1885, conferring upon the Supreme Court a tax upon this class of property. of the United States appellate jurisdiction Commerce-territorial legislation-inspecover the supreme courts of the territories tion fee. without regard to the sum or value in dis- 7. The amount of the fee imposed by N. M. act of March 19, 1901, for the inspection, lowed from any judgment or decree of the of hides offered for transportation beyond supreme court of a territory unless the matthe limits of the territory, does not render ter in dispute, exclusive of costs, exceeds that statute-if otherwise valid-repugnant the sum of $5,000. Section 2 of the act to the commerce clause of the Federal Con: makes exception to the application of $ 1 stitution, where it is not so unreasonable and disproportionate to the services rendered as to the sum in dispute, in cases wherein as to challenge the good faith of the law. is involved the validity of a treaty or stat

ute of or authority exercised under the Unit[No. 18.]

ed States, and in all such cases an appeal Argued March 14, 15, 1906. Decided Octo- or writ of error will lie without regard to

the sum or value in dispute. ber 15, 1906.

Confessedly, $5,000 is not involved; and PPEAL from the Supreme Court of the in order to be appealable to this court the

Territory of New Mexico to review a case must involve the validity of an author. judgment which affirmed a judgment of the ity exercised under the United States, and District Court of Santa Fe County, in that also be a controversy in which some sum or territory, sustaining a motion to quash an value is involved. This court, in the case alternative writ of mandamus to compel of United States v. Lynch, 137 U. S. 280– a common carrier to receive for transporta- 285, 34 L. ed. 700-702, 11 Sup. Ct. Rep. tion beyond the limits of the territory hides 114-116, laid down the test of the right to which did not bear the evidence of inspec- appeal under the statute in the following tion required by the territorial laws. Af.

terms: firmed.

"The validity of a statute, or the validity See same case below (N. M.) 78 Pac. 74. of an authority, is drawn in question when The facts are stated in the opinion.

the existence or constitutionality or legality Messrs. William B. Childers and T. B. of such statute or authority is denied, and Catron for appellant.

the denial forms the subject of direct inMessrs. Charles A. Spiess, A. C. Camp- quiry.”

, bell, and D. J. Leahey for appellee.

The right to legislate in the territories

is conferred, under constitutional authority, Mr. Justice Day delivered the opinion of by the Congress of the United States, and the court:

the passage of a territorial law is the exerThis is an appeal from the judgment of tion of an authority exercised under the the supreme court of New Mexico, afiirming United States. While this act was passed the judgment of the district court of Santa in pursuance of the authority given by the Fe county, sustaining a motion to quash an United States to the territorial legislature, alternative writ of mandamus issued on the it is contended by the relators below, aprelation of E. J. McLean & Company against pellants here, that it violates the Constituthe Denver & Rio Grande Railroad Com- tion of the United States, and is therefore pany.

invalid, although it is an attempted exerFrom the allegations of the writ it ap- cise of power conferred by Congress upon pears that the relators, the appellants here, the territory. The objection of the relator to had delivered to the railroad company at the law raises a controversy as to the right Santa Fe, New Mexico, a bale of hides con- of the legislature to pass it under the broad signed to Denver, Colorado, a point on the power of legislation conferred by Congress line of the defendant's railroad. The rail- upon the territory. In other words, the road company refused to receive and ship validity of an authority exercised under the the hides for the reason that they did not United States in the passage and enforcebear the evidence of inspection required by ment of this law is directly challenged, and the act of the legislature of New Mexico, the case does involve the validity of an auapproved March 19, 1901, which act, to be thority exercised under the power derived more fully noticed hereafter, made it an from the United States. It is not a case offense for any railroad company to receive merely involving the construction of a leghides for shipment beyond the limits of the islative act of the territory, as was the territory which had not been inspected with fact in Snow v. United States, 118 U. S. in the requirements of the law.

346, 30 L. ed. 207, 6 Sup. Ct. Rep. 1059. An objection is made to the jurisdiction The power to pass the act at all, in view of of this court upon the ground that the case the requirements of the Constitution of the is not appealable under the act of Congress United States, is the subject-matter of conof March 3, 1885. 23 Stat. at L. 443, chap. troversy, and brings the case in this aspect 355 (U. S. Comp. Stat. 1901, p. 572). within the 2d section of the act.

Section 1 of the act provides, in substance, Is there any sum or value in dispute in that no appeal or writ of error shall be al. | this case? While the act does not prescribe the amount, some sum or value must be in to the effect of this law upon interstate dispute. Albright v. New Mexico, 200 U. commerce, and it is urged that it is in violaS. 9, 50 L. ed. 346, 26 Sup. Ct. Rep. 210. tion of the Constitution, because it underThe matter in dispute is the right to have takes to regulate interstate commerce, and the goods which were tendered for shipment lays upon it a tax not within the power of transported to their destination. As a the local legislature to exact. It has been common carrier, the railroad was bound to too frequently decided by this court to rereceive and transport the goods. Its refus-quire the restatement of the decisions, that al so to do was based upon the statute in the exclusive power to regulate interstate question because of the noninspection of the commerce is vested by the Constitution in goods tendered. The relators claimed the Congress, and that other laws which unright to have their goods transported be- dertake to regulate such commerce or imcause the statute was null and void, being pose burdens upon it are invalid. This docan unconstitutional enactment. The con- trine has been reaffirmed and announced in troversy, therefore, relates to the right of cases decided as recently as the last term the appellants to have their goods trans- of this court. Houston & T. C. R. Co. v. ported by the railroad company to the Mayes, 201 U. S. 321, 50 L. ed. 772, 26 place of destination. We think this was a Sup. Ct. Rep. 491; McNeill v. Southern R. valuable right, measurable in money. At Co. 202 U. S. 543, 50 L. ed. 1142, 26 Sup. common law, a cause of action arose from Ct. Rep. 722. While this is true, it is the refusal of a common carrier to trans- equally well settled that a state or a terriport goods duly tendered for carriage. Or-tory, for the same reasons, in the exercise dinarily, the measure of damages in such of the police power, may make rules and case is the difference between the value of regulations not conflicting with the legislathe goods at the point of tender and their tion of Congress upon the same subject, and value at their proposed destination, less not amounting to regulations of interstate the cost of carriage. We are of the opin-commerce. It will only be necessary to refer ion that this controversy involves a money to a few of the many cases decided in this value within the meaning of the statute, court holding valid enactments of legislaand the motion to dismiss the appeal will tures having for their object the protection, be overruled.

welfare, and safety of the people, although Passing to the merits of the controversy, such laws may have an effect upon interCongress has conferred legislative power state commerce. Missouri, K. & T. R. Co. upon the territory to an extent not incon- v. Haber, 169 U. S. 613-635, 42 L. ed. 878– sistent with the Constitution and laws of 885, 18 Sup. Ct. Rep. 488; Chicago, M. & the United States. U. S. Rev. Stat. § 1851. St. P. R. Co. v. Solan, 169 U. S. 133, 42 L. It is contended that the act under considered. 688, 18 Sup. Ct. Rep. 289; Pennsylvania ation contravenes that part of article 1, R. Co. v. Hughes, 191 U. S. 477, 48 L. ed. § 10, of the Constitution of the United 268, 24 Sup. Ct. Rep. 132. The principle States, which reads: "No state shall, with decided in these cases is that a state or out the consent of the Congress, lay any territory has the right to legislate for the imposts or duties on imports or exports, safety and welfare of its people, and that except what may be absolutely necessary for this right is not taken from it because of executing its inspection laws.” And also the exclusive right of Congress to regulate that part of the 8th section of article 1 of interstate commerce, except in cases where the Constitution of the United States, which the attempted exercise of authority by the gives to Congress the power to regulate com- legislature is in conflict with an act of merce with foreign nations, and among the Congress, or is an attempt to regulate instates, and with the Indian tribes.

terstate commerce. In Patapsco Guano Co. As to the objection predicated on § 10 v. Board of Agriculture, supra, it was diof article 1, that section can have no ap- rectly recognized that the state might pass plication to the present case, as that provi- inspection laws for the protection of its sion directly applies only to articles im- people against fraudulent practices and for ported or exported to foreign countries. the suppression of frauds, although such Patapsco Guano Co. v. Board of Agriculture, legislation had an effect upon interstate 171 U. S. 345-350, 43 L. ed. 191-193, 18 commerce. The same principle was recog. Sup. Ct. Rep. 862, and cases cited. More- nized in Neilson v. Garza, 2 Woods, 287, over, that paragraph of the Constitution Fed. Cas. No. 10,091,-a case decided by Mr. expressly reserves the right of the states Justice Bradley on the circuit and quoted to pass inspection laws, and if this law is from at length with approval by Mr. Chief of that character it does not run counter Justice Fuller in the Patapsco Case. to this requirement of the Constitution. Applying the principles recognized in

The question principally argued is as these cases to the case at bar, does the act.

in question do violence to the exclusive | whom each of said cattle was bought, the right of Congress to regulate interstate brands and marks upon each hide, and any commerce? We take judicial notice of the information that may be obtained touchfact that, in the territory of New Mexico, ing the violation by the owner of any such and in other similar parts of the West, slaughterhouse, or any other person, of the cattle are required to be branded in order provisions of an act entitled "An Act for to identify their ownership, and that they the Protection of Stock, and for Other Pur. run at large in great stretches of country poses," approved April 1, 1884. For the with no other means of determining their purpose of making the inspection authorseparate ownership than by the brands or ized by this act, any inspector employed by marks upon them. In view of these con- the said sanitary board shall have the right siderations, and for the purpose of pro- to enter, in the day or nightime, any tecting the owners of cattle against fraud slaughterhouse or other place where cattle and criminal seizures of their property, are killed in this territory, and to carethe territory of New Mexico has made pro- fully examine the same, and all books and vision, by means of a system of laws en records required by law to be kept therein, acted for the purpose, for the protection of and to compare the hides found therein with the ownership of cattle and the prevention such records' ($ 213). In 1893 it was proof fraudulent appropriations of this kind of vided that the cattle sanitary board might property. The legislation upon the subject fix fees for the inspection of cattle and in the territory is thus summarized in the hides ($ 221) (repealed in 1899 [Laws 1899 opinion, in this case, of the supreme court chap. 53, p. 107]) and that such fees shall of New Mexico (78 Pac. 74):

be paid to the secretary of the board and “The first act relating to inspection of placed to the credit of the cattle sanitary hides was passed in 1884, and provided board ($ 222), and shall be used, together that all butchers should keep a record of with funds realized from taxes levied and all animals slaughtered, and keep the hides assessed, or to be levied and assessed, upand horns of such animals for thirty days on cattle only, to defray the expenses of after slaughter, free to the inspection of all the board ($220). Chapter 44, p. 94, of persons (Comp. Laws, $ 84); and provided the Laws of 1899, makes no changes in the a penalty for failure to keep the record and law material to the consideration of this the hides and horns (ß 86), and a penalty case. Section 2, chap. 53, p. 107, of the for refusal of inspection of the record or Laws of 1899, provides a fee of 3 cents for hides (8 87). In 1891 all persons were re-inspection of cattle.” quired to keep hides for thirty days for the In pari materia with this legislation the inspection of any sheriff, deputy sheriff, or act of 1901, now under consideration, was any constable, or any board or inspector, passed. Sections 3 and 4 of that act are or any officer authorized to inspect hides as follows: ($ 89), and provided a penalty ($90). “Sec. 3. Hereafter it shall be unlawful In 1889, amended in 1895 (Laws 1895, for any person, firm, or corporation to offer, chap. 29, § 4, p. 70), a cattle sanitary board or any railroad company or other common was created (§ 183), with power to adopt carrier to receive, for the purpose of shipand enforce quarantine regulations and reg-ment or transportation beyond the limits of ulations for the inspection of cattle for sale this territory, any hides that have not been and slaughter (184), and pay inspectors inspected and tagged by a duly authorized not to exceed $2.50 per day and their ex- inspector of the cattle sanitary board of penses ($ 190). In 1891 the cattle sani- New Mexico, for the district in which such tary board was authorized and required to hides originate. For each hide thus inmake regulations concerning inspection of spected there shall be paid by the owner cattle for shipment, and hides and slaughter- or holder thereof a fee or charge of 10 houses ($ 208), and there was provided the cents, and such fee or charge shall be a lien details of arrangement for inspection of upon the hides thus inspected, until the cattle ($ 212), and the duties of cattle in same shall have been paid. Each inspector spectors were enlarged by providing: 'Every of hides shall keep a complete record of all slaughterhouse in this territory shall be inspections made by him, and shall at once carefully inspected by some one of the in- forward to the secretary of the cattle sanispectors aforesaid, and all hides found in tary board, on blanks furnished him for that such slaughterhouses shall be carefully com- purpose, a complete report of each inspecpared with the records of such slaughter- tion, giving the names of the purchaser and houses, and a report in writing setting forth shipper of the hides, as well as all the the number of cattle killed at any such brands thereon, which said report shall be slaughterhouse since the last inspection, preserved by the secretary as a part of the

. the names of the persons from | records of his office.