The soundness of the definition, given in the Judiciary Act of 1789, of the cases coming within the original jurisdiction of this court by reason of a State being a party, as "controversies of a civil nature,' was again recognized by this court in Rhode Island v. Massachusetts, decided at January Term, 1838. 12 Pet. 657, 722, 731 [9:1233, 1259, 1263]. By the Judiciary Act of September 24, 1789, | supreme court cannot take original jurisdicchap. 20, 13, it was enacted that "the supreme tion." Pp. 398, 399 [289, 290]. court shall have exclusive jurisdiction of controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction." 1 Stat. at L. 80. That Act, which has continued in force ever since, and is embodied in § 687 of the Revised Statutes, was passed by the first Congress assembled under the Consti-State recovered in one of her own courts the tution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning. Ames v. Kansas, 111 U. S. 449, 463, 464 [28:482, 488]. In Chisholm v. Georgia, 2 Dall. 419 [1:440], decided at August Term, 1793, in which the judges delivered their opinions seriatim, Mr. Justice Iredell, who spoke first, after citing the provisions of the original Constitution, and of 13 of the Judiciary Act of 1789, said: "The Constitution is particular in expressing the parties who may be the objects of the jurisdiction in any of these cases, but, in respect to the subject matter upon which such jurisdiction is to be exercised, uses the word 'controversies' only. The Act of Congress more particularly mentions civil controversies, a qualification of the general word in the Constitution, which I do not doubt every reasonable man will think was well warranted, for it cannot be presumed that the general word 'controversies' was intended to include any proceedings that relate to criminal cases, which, in all instances that respect the same government only, are uniformly considered of a local nature, and to be decided by its particular laws." Pp. 431, 432 [445]. None of the other judges suggested any doubt upon this point; and Chief Justice Jay, in summing up the various classes of cases to which the judicial power of the United States extends, used demands" (a word quite inappropriate to designate criminal or penal proceedings) as including everything that a State could prosecute against citizens of another State in a national court. P. 475 [464]. The statute of Wisconsin, under which the judgment now and here sued on, was in the strictest sense a penal statute, imposing a penalty upon any insurance company of another State, doing business in the State of Wisconsin without having deposited with the proper officer of the State a full statement of its property and business during the previous year. Wis. Rev. Stat. § 1920. The cause of action was not any private injury, but solely the offense committed against the State by violating her law. The prosecution was in the name of the State, and the whole penalty, when recovered, would accrue to the State, and be paid, one half into her treasury, and the other half to her insurance commissioner, who pays all expenses of prosecuting for and collecting such forfeitures. Wis. Stat. 1885, chap. 395. The real nature of the case is not affected by the forms provided by the law of the State for the punishment of the offense. It is immaterial whether, by the law of Wisconsin, the prosecution must be by indictment or by action; or whether, under that law, a judgment there obtained for the penalty might be enforced by execution, by scire facias, or by a new suit. In whatever form the State pursues her right to punish the offense against her sovereignty, every step of the proceeding tends to one end, the compelling the offender to pay a pecuniary fine by way of punishment for the offense. This court, therefore, cannot entertain an original action to compel the defendant to pay to the State of Wisconsin a sum of money in satisfaction of the judgment for that fine. The original jurisdiction of this court is conferred by the Constitution, without limit of the amount in controversy, and Congress has never imposed (if indeed it could impose) any such limit. If this court has original jurisdiction of the present case, it must follow that any action upon a judgment obtained by a State in her own courts against a citizen of another State for the recovery of any sum of money, however small, by way of a fine for any offense, however petty, against her laws, could be brought in the first instance in the Supreme Court of the United States. That cannot have been the intention of the Convention in framing, or of the people in adopting, the Federal Constitution. In Cohens v. Virginia, 6 Wheat. 264 [5:257], decided at October Term, 1821, Chief Justice Marshall, after showing that the Constitution had given jurisdiction to the courts of the Union in two classes of cases, in one of which, comprehending cases arising under the Constitution, laws and treaties of the United States, the jurisdiction depended on the character of the cause, and in the other, comprehending controversies between two or more States, or between a State and citizens of another State, the jurisdiction depended entirely on the character of the parties, said: "The original jurisdiction of the supreme court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases in which an original suit might not be instituted in a federal court. Of the last description is every case between a State and its citizens, and perhaps every case in which a State is enforcing Rights, its penal laws. In such cases, therefore, the Judgment for the defendant on the demurrer. ARKANSAS VALLEY SMELTING COM- v. BELDEN MINING COMPANY. (See S. C. Reporter's ed. 379-390.) when not assignable-contract to deliver ore, when not assignable. 1. Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided. 2. A contract by a mining company, to deliver dead ore from its mines, the ore to be assayed, after delivery, by the parties and, if they could not agree, by an umpire, and the price to be ascertained and paid according to the result of the assay, no security being given for payment except the character and solvency of the parties to whom the ore was to be delivered,-Held to be within the above rule; and that defendant could not be compelled to accept the liability of any other person or corporation as a substitute for the liability of those with whom it contracted. 3. Assignment by operation of law, as in the case of an executor, is quite different from assignment by act of the party." [No. 197.] Submitted April 2, 1888. Decided May 14, 1888. IN ERROR to the Circuit Court of the United States for the District of Colorado, to review a judgment for defendant in an action brought by a smelting company against a mining company to recover damages for the breach of a contract to deliver ore, made by defendant with other persons and assigned to plaintiff. Affirmed. Statement by Mr. Justice Gray: This was an action brought by a smelting company, incorporated by the laws of Missouri, against a mining company, incorporated by the laws of Maine, and both doing business in Colorado by virtue of a compliance with its laws, to recover damages for the breach of a contract to deliver ore, made by the defendant with Billing and Eilers, and assigned to the plaintiff. The material allegations of the complaint were as follows: On July 12, 1881, a contract in writing was made between the defendant of the first part and Billing and Eilers of the second part, by which it was agreed that the defendant should sell and deliver to Billing and Eilers at their smelting works in Leadville 10,000 tons of carbonate lead ore from its mines at Red Cliff, at the rate of at least 50 tons a day, beginning upon the completion of a railroad from Leadville to Red Cliff, and continuing until the whole should have been delivered, and that "all ore so delivered shall at once upon the delivery thereof become the property of the second party;" and it was further agreed as follows: "The value of said ore and the price to be paid therefor shall be fixed in lots of about one hundred tons each; that is to say, as soon as such a lot of ore shall have been delivered to said second party, it shall be sampled at the works of said second party, and the sample assayed by either or both of the parties hereto, and the value of such lots of ore shall be fixed by such assay; in case the parties hereto cannot agree as to such assay, they shall agree upon some third disinterested and competent party, whose assay shall be final. The price to be paid by said second party for such lot of ore shall be fixed on the basis hereinafter agreed upon by the closing New York quotations for silver and common lead, on the day of the delivery of sample bottle, and so on until all of said ore shall have been delivered. the following prices," specifying, by reference to the New York quotations, the price to be paid per pound for the lead contained in the ore, and the price to be paid for the silver contained in each ton of ore, varying according to the proportions of silica and of iron in the ore. The complaint further alleged that the railroad was completed on November 30, 1881, and thereupon the defendant, under and in compliance with the contract, began to deliver ore to Billing and Eilers at their smelting works, and delivered 167 tons between that date and January 1, 1882, when "the said firm of Billing and Eilers was dissolved, and the said contract and the business of said firm, and the smelting works at which said ores were to be delivered, were sold, assigned and transferred to G. Billing, whereof the defendant had due notice;" that after such transfer and assignment the defendant continued to deliver ore under the condelivered to Billing at said smelting works 894 tract, and between January 1 and April 21, 1882, tons; that on May 1, 1882, the contract, together with the smelting works, was sold and conveyed by Billing to the plaintiff, whereof the de fendant had due notice; that the defendant then ceased to deliver ore under the contract, and afterwards refused to perform the contract, and gave notice to the plaintiff that it considered the contract canceled and annulled; that all the ore so delivered under the contract was paid for according to its terms; that "the plaintiff and its said assignors were at all times during their respective ownerships ready, able and willing to pay on the like terms for each lot as delivered, when and as the defendant should deliver the same, according to the terms of said contract; and the time of payment was fixed on the day of delivery of the 'sample bottle,' by which expression was, by the custom of the trade, intended the completion of the assay or test by which the value of the ore was definitely fixed;" and that "the said Billing and Eilers, and the said G. Billing, their successor and assignee, at all times since the delivery of said contract, and during the respective periods when it was held by them respectively, were able, ready and willing to and did comply with and perform all the terms of the same, so far as they were by said contract required; and the said plaintiff has been at all times able, ready and willing to perform and comply with the terms thereof, and has from time to time, since the said contract was assigned to it, so notified the defendant." The defendant demurred to the complaint for various reasons, one of which was that the contract therein set forth could not be assigned, but was personal in its nature, and could not, by the pretended assignment thereof to the plaintiff, vest the plaintiff with any power to sue the defendant for the alleged breach of contract. The circuit court sustained the demurrer, and gave judgment for the defendant; and the plaintiff sued out this writ of error. Messrs. R. S. Morrison, T. M. Patterson and C. S. Thomas, for plaintiff in error: The court below erred in holding this agreement to be nonassignable. "Said second party shall pay said first party at said Leadville for each such lot of ore at once, upon the determination of its assay value, atv. Devlin v. Mayor of N. Y. 63 N. Y. 8; Hyde 379-390 SUPREME COURT OF THE UNITED STATES. Trott, Cowp. 371; Marshall v. Broadhurst, 1| Mr. Justice Gray delivered the opinion of the court: If the assignment to the plaintiff of the contract sued on was valid, the plaintiff is the real party in interest, and as such entitled, under the practice in Colorado, to maintain this acRev. Stat. § 914; Coltion in its own name. orado Code Civ. Pro. § 3; Albany & Rensselaer Iron & Steel Co. v. Lundberg, 121 U. S. 451 [30: 982]. The vital question in the case, therefore, is whether the contract between the defendant and Billing and Eilers was assignable by the latter, under the circumstances stated in the complaint. At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But everyone has a right to select and determine with whom he will contract, and cannot have another person In the thrust upon him without his consent. familiar phrase of Lord Denman, "You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract." Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305; Boston Ice Co. v. Potter, 123 Mass. 28; King v. Batterson, 13 R. I. 117, 120; Lansden v. McCarthy, 45 Mo. 106. The rule upon this subject, as applicable to the case at bar, is well expressed in a recent English treatise. "Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided." Pollock, Cont. 4th ed. 425. The contract here sued on was one by which the defendant agreed to deliver ten thousand tons of lead ore from its mines to Billing and Eilers at their smelting works. The ore was to be delivered at the rate of fifty tons a day and it was expressly agreed that it should be 248 come the property of Billing and Eilers as soon The fact that upon the dissolution of the The cause of action set forth in the complaint is not for any failure to deliver ore to Billing, before his assignment to the plaintiff (which might perhaps be an assignable chose in action), but it is for a refusal to deliver ore to the plaintiff since this assignment. Performance and readiness to perform by the plaintiff and its assignors, during the periods for which they respectively held the contract, is all that is alleged; there is no allegation that Billing is ready to pay for any ore delivered to the plaintiff. In short, the plaintiff undertakes to step into the shoes of Billing, and to substitute its liability for his. The defendant had a perfect right to decline to assent to this, and to refuse to recognize a party, with whom it had never contracted, as entitled to demand further deliveries of ore. The cases cited in the careful brief of the plaintiff's counsel, as tending to support this action, are distinguishable from the case at bar, and the principal ones may be classified as follows: First. Cases of agreements to sell and deliver goods for a fixed price, payable in cash on delivery, in which the owner would receive the price at the time of parting with his property, nothing further would remain to be done by 127 U.S. the purchaser, and the rights of the seller could not be affected by the question whether the price was paid by the person with whom he originally contracted or by an assignee. Sears v. Conover, 3 Keyes, 118, and 4 Abb. App. Dec. 179; Tyler v. Barrows, 6 Robt. 104. Second. Cases upon the question how far executors succeed to rights and liabilities under a contract of their testator. Hambly v. Trott, Cowp. 371, 375; Wentworth v. Cock, 10 Ad. & El. 42, and 2 Per. & Dav. 251; Williams, Exec. 7th ed. 1723-1725. Assignment by operation of law, as in the case of an executor, is quite different from assignment by act of the party; and the one might be held to have been in the contemplation of the parties to this contract, although the other was not. A lease, for instance, even if containing an express covenant against assignment by the lessee, passes to his executor. And it is by no means clear that an executor would be bound to perform, or would be entitled to the benefit of such a contract as that now in question. Dickinson v. Calahan, 19 Pa. 227. Third. Cases of assignments by contractors for public works, in which the contracts, and the statutes under which they were made, were held to permit all persons to bid for the contracts, and to execute them through third persons. Taylor v. Palmer, 31 Cal. 240, 247; St. Louis v. Clemens, 42 Mo. 69; Philadelphia v. Lockhardt, 73 Pa. 211; Devlin v. Mayor of N. Y. 63 N. Y. 8. IN ERROR to the Circuit Court of the United States for the Eastern District of Missouri, to' review a judgment for defendant, upon demurrer, in an action by a passenger against a railroad corporation for putting him off one of its trains. Affirmed. Reported below in 23 Fed. Rep. 826. See also 17 Fed. Rep. 880, and 5 McCrary, 462. Statement by Mr. Justice Gray: This was an action by a passenger against a railroad corporation for putting him off one of its trains. The allegations of the amended petition were in substance as follows: On April 9, 1883, the plaintiff purchased of the defendant at St. Louis a ticket expressed on its face to be "good for one first class passage to Hot Springs, Ark., and return, when officially stamped on back hereof and presented with coupous attached," and containing a "tourist's contract," signed by the plaintiff as well as by the ticket agent, by which, "in consideration of the reduced rate at which this ticket is sold," the plaintiff agreed, "with the several companies" over whose lines the ticket entitled him to be carried, upon certain terms and conditions, of which those material to be here stated were as follows: "1. That in selling this ticket the St. Louis, Iron Mountain and Southern Railway Company acts only as agent and is not responsible beyond its own line." 4. That it is good for going passage only five (5) days from the date of sale, as stampedon back and written below. Fourth. Other cases of contracts assigned by the party who was to do certain work, not by the party who was to pay for it, and in which the question was whether the work was of "5. That it is not good for return passage such a nature that it was intended to be per- unless the holder identifies himself as the origformed by the original contractor only. Rob-inal purchaser to the satisfaction of the authorson v. Drummond, 2 Barn. & Ad. 303; British Waggon Co. v. Lea, L. R. 5 Q. B. Div. 149; Parsons v. Woodward, 22 N. J. L. 196. Without considering whether all the cases cited were well decided, it is sufficient to say that none of them can control the decision of the present case. Judgment affirmed. JAMES MOSHER, Piff. in Err., v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY. (See S. C. Reporter's ed. 390-396.) Railroad passenger-contract on ticket-liability of railroad-demurrer. 1. The right of a passenger to be carried upon a railroad upon a "tourist's or round-trip "ticket depends upon the written contract signed by him thereon, and not upon representations made by an officer of the company. 2. Where, by the contract, a stamp upon the ticket made by an agent was a condition precedent to the right to a return passage, no agent or employee of the railroad company was authorized to waive the condition. ized agent of the Hot Springs Railroad at Hot Springs, Ark., within eighty-five (85) days from date of sale, and when officially signed and dated in ink and duly stamped by said agent this ticket shall then be good only five (5) days from such date. "6. That I, the original purchaser, hereby agree to sign my name and otherwise identify myself as such, whenever called upon to do so by any conductor or agent of the line or lines over which this ticket reads, and on my failure or refusal that this ticket shall become thereafter void." "12. And it is expressly agreed and understood by me that no agent or employee of any of the lines named in this ticket has any power to alter, modify or waive in any manner any of the conditions named in this contract." Attached to the ticket were various coupons, a portion of which entitled the plaintiff to be carried from Malvern to Hot Springs and back on the Hot Springs Railroad. The plaintiff was accordingly carried as a passenger from St. Louis to Hot Springs. On May 9, 1883, the plaintiff, desiring to return to St. Louis, "presented himself and said: ticket at the business and ticket office and depot of said Hot Springs Railroad, the said business and ticket office and depot being then and there the business office of the authorized agent of said Hot Springs Railroad at said Hot Springs, during business hours and a reasonable time before the time of departure of its train for St. Louis that the plaintiff desired to take and did Argued April 20, 1888. Decided May 14, 1888. take," and offered to identify himself as the 3. Where, by the contract contained on defendant's ticket, the defendant company is not to be responsible beyond its own line, it is not responsible to the plaintiff for the failure of another company to have an agent at the further end of the route. 4. A demurrer admits only the facts alleged, and not the conclusion of law inserted in the pleading demurred to. [No. 246.] It was the duty of the conductor of defendant to accept and act upon the statement of plaintiff in regard to his ticket, unless he had ascertained that his statement was untrue. original purchaser of the ticket to the satisfac- | v. Myrtle, 51 Ind. 566; Kansas Pac. R. Co. v. tion of said agent for the purpose of entitling Kessler, 18 Kan. 523; Pennsylvania R. R. Co. himself to return thereon to St. Louis, and of v. Connell, 112 Ill. 295. permitting the ticket to be officially signed, dated in ink and duly stamped by said agent; but the defendant and the Hot Springs Railroad Company failed to have said agent there at any time between the time when the plaintiff so presented himself and his ticket and the time of departure of the train "whereby," the petition averred, "said defendant and its agent and the agent of said Hot Springs Railroad at Hot Springs, Ark., failed and refused, without any just cause or excuse, to identify the plaintiff as the original purchaser of said ticket, or to officially sign, date in ink, and stamp said ticket." The plaintiff thereupon boarded the train of the Hot Springs Railroad at Hot Springs, and was carried thereby to Malvern, where, on the same day, he boarded a regular passenger train of the defendant for St. Louis, and, upon the conductor thereof demanding his fare, presented his ticket, informed him of his presentation of it at the office at Hot Springs, of his offer there to identify himself, and of the absence of the agent, as aforesaid, and offered to sign his name and otherwise identify himself to the conductor, and demanded to be carried to St. Louis by virtue of said ticket; but the conductor refused, and put him off the train, and left him at a way station, where he was obliged to remain without fire or other protection against the cold until he took the midnight train of the defendant for St. Louis, first paying fare; "by reason of each and all of which wrongful and unlawful acts aforesaid of defendant, its agents and employees, the plaintiff says he has been damaged in the sum of ten thousand dollars, for which he asks judgment." The circuit court sustained a demurrer to this petition, and gave judgment for the defendant. Its opinion, delivered upon sustaining this demurrer, and sent up with the record, is reported in 23 Fed. Rep. 326; and its opinion at a former stage of the case, in 5 McCrary, 462, and in 17 Fed. Rep. 880. Mr. Clinton Rowell, for plaintiff in error: Under the terms of the ticket plaintiff was not guilty of any negligence in failing to get it stamped, and he was entitled to be transported on it. Gregory v. Burlington & M. R. R. R. Co. 10 Neb. 250; Murdock v. Boston & A. R. R. Co. 137 Mass. 293; Moore v. Fitchburg R. R. Corp. 4 Gray, 465; Maroney v. Old Colony & N. R. Co. 106 Mass. 153; Lake Shore & M. S. R. Co. v. Greenwood, 79 Pa. 373; Pennsylvania R. R. Co. v. Spicker, 105 Pa. 142; Young v. Pennsylwania R. R. Co. 5 Cent. Rep. 848, 115 Pa. 112; Hufford v. Grand Rapids & I. R. R. Co. 7 West. Rep. 859; Burnham v. Grand Trunk R. Co. 63 Me. 298; Tarbell v. Northern Cent. R. Co. 24 Hun, 51; Hamilton v. Third Ave. R. R. Co. 53 N. Y. 25; Hicks v. Hannibal & St. J. R. R. Co. 68 Mo. 329; Yorton v. Milwaukee, L. S. & W. R. Co. 62 Wis. 367; Palmer v. Charlotte, C. & A. R. Co. 3 S. C. 580; Illinois Cent. R. R. Co. v. Johnson, 67 Ill. 312; Chicago & A. R. R. Co. N. Flagg, 43 Ill. 364; Evans v. Memphis & C. R. R. Co. 56 Ala. 246; Lake Erie & W. R. Co. 4. Fix, 88 Ind. 381; St. Louis & S. E. R. Co. Hufford v. Grand Rapids & 1. R. R. Co. 7 West. Rep. 859; Burnham v. Grand Trunk R. Co. 63 Me. 298; Young v. Pennsylvania R. R. Co. 5 Cent. Rep. 848, 115 Pa. 112. Mr. John F. Dillon and Winslow S. Pierce, Jr., for defendant in error: As between the conductor and passenger and the rights of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as the evidence of his right to the seat he claims. Frederick v. Marquette, H. & O. R. R. Co. 37 Mich. 342; Lake Shore & M. S. R. Co. v. Pierce, 47 Mich. 277; Swan v. Manchester & L. R. R. Co. 132 Mass. 116; S. C. 6 Am. & Eng. R. R. Cas. 332; Sherman v. Chicago & N. W. R. Co. 40 Iowa, 45; Dietrich v. Pennsylvania R. R. Co. 71 Pa. 432. Mr. Justice Gray, after stating the case, delivered the opinion of the court: The right of this plaintiff to be carried upon the defendant's train, without paying additional fare, does not depend upon his having been received as an ordinary passenger, or upon any representations made by a ticket seller, conductor or other officer of the Company as to his right to use a ticket, but wholly upon the construction and effect of the written contract, signed by him, upon the face of the ticket (of the kind called "tourist's" or "round-trip" tickets) sold him by the defendant for a passage to Hot Springs and back, by which, in consideration of a reduced rate of fare, he agreed to the following terms: By the fifth condition, the ticket "is not good for return passage unless the holder identifies himself as the original purchaser to the satisfaction of the authorized agent of the Hot Springs Railroad, at Hot Springs, Ark., within eightyfive days from date of sale, and when officially signed and dated in ink and duly stamped by said agent this ticket shall then be good only five days from such date." The clear meaning of this condition is that the ticket shall not be good for a return passage at all, unless, within eighty-five days from its original date, the holder not only identifies himself as the original purchaser to the satisfaction of the agent named, but that agent signs, dates and stamps the ticket; and that, upon such identification and stamping, the ticket shall be good for five days from the new date. The sixth condition, by which the ticket is to be void if the plaintiff does not sign his name and otherwise identify himself, whenever called upon so to do by any conductor or agent of either of the lines over which he may pass, is evidently intended as an additional precaution against the transfer of the ticket either in going or in returning, and not as an alternative or substitute for the previous condition to the validity of the ticket for a return trip. The twelfth condition states that the plaintiff understands and expressly agrees that no agent or employee of any of the lines has any power |