able that, if the cost of draining the streets ment of 1874, limiting the power of the city "The city of New Orleans shall not hereafter increase her (its) debt in any manner or form or under any pretext. After the 1st of January, 1875, no evidence of indebtedness or warrant for the payment of money shall be issued by any officer of said city except against cash actually in the treasury; but this shall not be so construed as to prevent the issue of drainage war The argument is that the act of February 24, 1876, authorizing the purchase by the state of the drainage plant and franchise, is null and void, because it had the effect of increasing the debt of the city in violation of the supposed prohibition contained in said constitutional amendment of 1874. 141] *One thing in this connection is certain. No general system of drainage could be es-rants to the transferee of contract under act tablished that did not include streets and No. 30 of 1871, payable only from drainage public squares as a part of the territory to taxes, and not otherwise." be drained. Assuming that no provision was made as to how the proportion applicable to public property was to be assessed and paid for, but that elaborate provision was made for the assessment of private property for its proportion of such expense, and for the creation of a lien therefor, enforceable by the courts, what follows? That private property was to be assessed for its contributory portion of a public expense? Not at all. Private owners may be assumed to be interested in draining their own property, but in the absence of a special provision to that effect there is no presumption that they are also to be called upon to pay that which prima facie belongs to the public. Indeed, in view of a recent decision in Massachusetts, it may well be doubted whether the legislature could impose the cost of draining public property upon private lotowners. Sears v. Boston Street Comrs. 53 N. E. 876. The expense of keeping streets in order is a public charge, and the same may be said of all other expenses which are for the benefit of the public. It is true that the expense of paving may be assessed upon the adjoining property upon the theory that such property is specially benefited by the improvement, but a special provision is necessary to create such charge. At the time this amendment was adopted, the act of February 24, 1871, which provides for the drainage of New Orleans, was in force. This act authorized the ship canal company to undertake the drainage of the city under the general direction of the board of administrators, and to provide funds for the payment of the work, directed the boards of drainage commissioners to turn over to the board of administrators "all moneys, assessments, and claims of drainage in their hands," including all judgments in favor of the commissioners, authorized the board of administrators to collect from the holders of property within the draining districts the balance due on the assessments, as shown by the books, "which said assessments are hereby confirmed and made exigible, at such time and in such manner as the board of administrators may designate; provided, that the said board shall collect the said assessments herein authorized in time to *provide for the[143] payment of the warrants to be issued to the As the boards of drainage commissioners said company at the date of their issue," and assessed the city for the expense of draining place all collections to the credit of the canal its public property, and the legislature ap- company for the drainage of the city. The proved all these assessments in the act of Feb-ship canal company, having become embarruary 24, 1871, and the city subsequently as- rassed by the want of funds in the city treassented to the homologation of these assess-ury to pay the drainage warrants, on May ment rolls, except in the first district, and 22, 1872, made a contract with Van Norden, to judgments against itself for the amount by which he agreed to advance to the canal of the assessments, it is difficult to see upon what principle it can now, after a lapse of more than twenty years, raise the question of its liability. We know of no reason why these judgments should not be treated as conclusive. A judgment for taxes does not differ from any other in respect to its conclusiveness. United States v. New Orleans, 98 U. S. 381, 25 L. ed. 225; Driggers v. Cassady, 71 Ala. 533; Cadmus v. Jackson, 52 Pa. 295; Freem. Judgm. § 135; Mayo v. Foley, [142]40 Cal. 281; *Anderson v. Rider, 46 Cal. 134; Starns v. Hadnot, 42 La. Ann. 366, 7 So. company $150,000 to meet the expenses of doing the work, upon condition of being reimbursed out of the warrants and money which might be obtained from the city of New Orleans, and to secure the same the company assigned to him all moneys, profits, and benefits that were to be realized by the execution of the work, as well as all certificates and warrants to be received, with authority to collect them. Subsequently, and on November 22, 1872, the company assigned all its property to Van Norden, acknowledging an indebtedness of $161,962.86 for moneys advanced. At the time the constitutional 5. The only other assignment of error we amendment went into effect the work was beare required to notice is that the court erred ing carried on by Van Norden under the in holding that the constitutional amend-'above contracts with the ship canal company. 672. The assessments, both against the city and | ation of a new obligation. There can be no individuals, which constitute the debt from question that the amendment was not dewhich the warrants are to be paid, were all signed to impair the validity of a debt alin existence long prior to this amendment, ready legally incurred, and that if it had and were reduced to judgments at sundry attempted that, it would have been hostile to times from 1861 to 1873. It seems, however, the provision of the Federal Constitution that the city concluded to do this work itself, against impairing the obligation of a conand applied to the legislature for authority tract. to purchase of Van Norden his drainage plant and to undertake itself to do the drainage work. This authority was granted by the act of February 24, 1876, under which the contract was made with Van Norden to purchase the plant, and to pay therefor the sum of $300,000 in drainage warrants as a consideration for the property, and also in full settlement of all claims for damages which the canal company or Van Norden had against the city. To provide for the payer was appointed and appraised the dredge ment of these warrants the city agreed that the rights of the holders of such warrants should remain unimpaired, and that the drainage taxes should be administered and paid under certain conditions, and their col[144]lection assigned to an officer to be selected *by Van Norden,-the city agreeing, as heretofore stated, to put no obstacle in the way of such collections. *6. It is scarcely necessary to say the fact[145] that the city chose to pay $300,000 in 1876 for property which Van Norden bought in 1872 from the ship canal company for $50,000, is not one which can be considered here. The act of 1876, authorizing the purchase and the settlement of claims against the city, provided for the appointment of an appraiser to estimate the value of the rights and things to be purchased or settled for. This appraisboats and machinery at $153,750, being 25 per cent less than the original cost. He announced himself as unable to come to a conclusion with reference to the damages claimed. It must be borne in mind that the consideration of $300,000 was fixed upon, not only to cover the value of the property of the plant, but the exclusive franchise under the act of 1871, and the claims for damages against the city. We think it was the intention of the constitutional amendment to validate the issue It may be that the city made a bad barof the drainage warrants to the transferee of gain. It may be that it paid far more than the contract, not only for the work done, but the fair value of the property and claims for the property purchased by the city, in purchased. It may be that the action of the case it should elect to do the work itself. The common council was dictated by improper act of 1876 did not so much authorize an in- considerations, though this is rather hinted crease of the city's debt as a diversion of the at than asserted; but from the case of warrants to the purchase of the drainage Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162, plant instead of a payment to the transferee to the present time we have uniformly refor work done. We think the amendment fused to inquire into the motives of legisshould receive a construction commensurate lative bodies. In this case Mr. Chief Justice with the object intended to be accomplished, namely, the drainage of the city, whether such drainage were carried out by Van Norden or by the city itself, and that it should not be limited to such warrants as were to be issued for the work. The debt for the assessments had already been incurred and put in judgment, and the amendment was intended to recognize the existence of such debt, and to provide that the warrants issued in payment of the same should not be treated as within the scope of the amendment. Beyond this, however, these warrants were to be issued, not only in payment of the drainage plant, but in settlement of Van Norden's claims against the city for damages connect ed with the failure of the city to carry out its contract with the canal company and Van Norden, which, in view of the fact that the drainage plant had been purchased by him for $50,000, may be assumed to have been the greater part of the consideration. Indeed, it is open to serious consideration whether the reservation of drainage warrants in the constitutional amendment of 1874 was necessary, in view of the fact that the assessments had already been reduced to judgments against the city and the property owners, and that the further issue of drainage warrants was rather in the nature of the payment of a debt already incurred than the cre Marshall, speaking for the court, observed: Continental Ins. Co. 94 U. S. 535, 24 L. ed. | specified in the contract. It is true, the 7. The objection that the decree finds the city a debtor to the complainant in the amount of the warrants is more apparent than real, since it also declares that he is entitled to be paid out of the drainage assessments, refers it to a master to state an account of such assessments, and provides for an absolute decree against the city only if the fund established by the accounting shall be sufficient, and for a pro rata decree if such fund be not sufficient, to pay all the warrant holders in full. There was no error in allowing interest except as to amount. The act of 1876, authorizing the city to purchase the drainage plant, declared that the consideration should be paid in drainage warrants, issued in the same form and manner as those theretofore issued under the act of 1871 for work done. This act of 1871 provided that if there should not be sufficient funds to cash the warrants when issued, the administrator of finance was required to indorse upon them the date of presentation, after which such warrants should bear interest at the rate of 8 per cent until paid. The warrants also made this provision upon their face. But there was no presentation for payment as the statute and warrants required, and there was no waiver of such presentation. In 1876, it is true, the city abandoned the work, but the whole of complainant's case rests upon the theory that there was no repudiation of the trust, or of the obligation to do whatever was possible in the collection of the assessments. If, then, the trust continued so as to charge the city as trustee, the [147]obligation of the complainant to take *such measures as were necessary to charge the city with interest also continued. But the liability of the city to pay interest was conditioned upon the presentation of the warrants and the indorsement upon them of the date of such presentation. While refusal to indorse the date, upon a proper presentation of the warrants, would not prevent the collection of interest, there must have been a presentation, or something equivalent thereto, before interest would begin to run. If the eity had wholly denied the right of complainant, or distinctly refused to perform its obligation, or had wholly disabled itself from complying with its contract, a different question might have arisen, but the mere abandonment of the work was not sufficient to obviate the necessity of a demand. Berard v. Boagni, 30 La. Ann. 1125. cases of Brewster v. Wakefield, 22 How. 118, 16 L. ed. 301; Burnhisel v. Firman, 22 Wall. 170, 22 L. ed. 766; and Holden v. Savings Trust Co. 100 U. S. 72, 25 L. ed. 567.-hold that, where there is a promise to pay upon a certain day with interest at an exorbitant rate, the creditor is only entitled to interest after that time by operation of law, and not by any provision in the contract; although if the local law be different, this court will follow it. Cromwell v. Sac County, 96 U. S. 51, 61, 24 L. ed. 681, 687; Ohio v. Frank, 103 U. S. 697, 26 L. ed. 531. These very cases, however, recognize the principle that, if the parties themselves have fixed a rate to be paid up to the time of payment, that rate will be respected. In this case both the statute and the warrants provided that such warrants shall bear interest at the rate of 8 per cent "until paid," and we are therefore of opinion that complainant is entitled to that rate from November 26, 1894, the date of filing the bill and issuing the subpœna. While this opinion does not cover all the assignments of error, it disposes of all questheir briefs, tions raised by counsel in and our conclusion is that the decree of the Court of Appeals be modified in respect of the date from which interest is to be calculated, 148) and as so modified affirmed, with costs of this court equally divided, and that the case be remanded to the Circuit Court for the Eastern District of Louisiana, with a direction to comply with the decree of the Court of Ap peals as modified. So ordered. Mr. Justice White and Mr. Justice Peckham did not sit in this case, and took no part in its decision. WILLIAM A. BRADY, Plff. in Err., v. JOSEPH F. DALY and Richard Dorney, Executors, and Mary Daly, Executrix, of Augustin Daly, Deceased. (See S. C. Reporter's ed. 148-161.) Damages for violation of copyright act— not penalty or forfeiture-conclusiveness of decree in equity. 1. An action at law to recover damages for infringement of copyright under U. S. Rev. Stat. § 4966, is not one to recover either a penalty or a forfeiture, so as to make the jurisdiction of a district court of the United States exclusive, but is within the provision of U. S. Rev. Stat. § 629, subd. 9, giving to the circuit courts jurisdiction of suits at law or in equity arising under the patent or copyright laws. 2. A decree establishing the validity of a copyright, and determining that a railroad NOTE.-That a right question of fact put in issue and determined in a suit cannot be dis But the commencement of suit was a suffi-puted in a subsequent suit between the same parties or their privies, although the second cient demand to charge the defendant the in-suit is for a different cause of action, see note terest from that day (Fuller v. Hubbard, 6 to Southern P. R. Co. v. United States, 42 L. ed. Cow. 13, 22, 16 Am. Dec. 423), at the rate U. S. 355. 109 scene in a play, apart from the dialogue, is a dramatic composition and entitled to protection under the copyright laws, is conclusive on the parties in a subsequent action at law for damages for the infringement. 8. A suit for an injunction against infringement of a copyright, in which an accounting of profits is asked, but in which no evidence of profits is offered, or any decree or finding made concerning them, but in which a decree is made for an injunction only, does not constitute such an election of remedy as will preclude a subsequent action for the recovery of damages for the infringement. [No. 52.] Argued October 18, 1899. IN accounting for all money and profits received The complainant moved for a preliminary N ERROR to the United States Circuit Court of Appeals for the Second Circuit affirming a decision of the Circuit Court in an action at law for damages for violation of a dramatic copyright. Affirmed. See same case below, 51 U. S. App. 621, 83 Fed. Rep. 1007, 28 C. C. A. 253. Statement by Mr. Justice Peckham: This was an action at law brought by Augustin Daly, and prosecuted since his [149]death by the executors of his will, for the violation of a dramatic copyright. In 1867 Daly was the owner of a dramatic composition entitled "Under the Gaslight," and in that year he took out a copyright therefor in the United States. Pursuant to the mandate of the circuit court of appeals, a decree for a perpetual injunction was entered by the circuit court The play was produced by Daly and his li- November 5, 1892, and it was referred to a censees, and became quite popular, and he master to take proof of the number of unauderived considerable profit from its produc- thorized performances of the play "After tion by himself and from the royalties he re- Dark," with the railroad scene, which had ceived. The chief value of the play and its been given by the defendant. The court did popularity depended upon an incident in the not direct the master, either in the decree or third scene of the fourth act, commonly de- in the order of reference, to ascertain anyscribed as the railroad scene, where one of thing in regard to profits; no evidence was the characters is laid helpless upon a rail-offered before him upon that subject, and no road track upon which a railroad train is finding was made thereon. A final decree in momentarily expected that will run him the case. accepting the master's report and down and kill him, and just at the last mo-making his findings the findings of the court, ment another of the characters contrives to was entered on April 1, 1893, but no decree reach the intended victim and drag him from for profits was asked or rendered. the track as the train rushes in and passes over the spot. After the play was produced, Dion Boucicault prepared a play called "After Dark," in which he introduced a railroad scene dif Another appeal was taken to the circuit court of appeals, and the decree affirmed, with costs, June 7, 1893. 11 U. S. App. 791, 8 C. C. A. 681. The mandate of the circuit court of apfering but slightly and only colorably from peals on this second appeal was filed in the that which appeared in "Under the Gas-circuit court June 14, 1893, and a decree in light." The plaintiff in error, defendant below, without the consent of Daly, produced fendant attempted to obtain a review of the conformity therewith duly entered. The deand procured to be publicly performed on the stage in divers cities the play "After Dark," including the railway scene. On the 20th of May, 1889, Daly brought a suit in equity against the plaintiff in error herein, in the circuit court of the United States for the southern district of New York, in which he prayed that the defendant might be perpetually enjoined from the further performance of the play "After Dark," upon the ground that the performance was an infringement of the copyright of his play "Under the Gaslight," and he asked for an judgment against him by appealing to this The present action was commenced July Mr. David Gerber argued the cause and, with Mr. A. J. Dittenhoefer, filed a brief for plaintiff in error. 4966 of the Revised Statutes, while the sec- sued out a writ of error from this court, and ond alleged that the defendant had infringed the case is now here for review. his copyright in violation of the provisions of that section, and that "by virtue of the provisions of said act of Congress (the copyright act) and of said § 4966 of the Revised Statutes of the United States the defendant then and there became liable to pay to said plaintiff the sum of $13,700, lawful money of the United States, as damages." The answer of the defendant denied the infringement and set up various defenses which are noticed in the following opinion. A jury trial was waived, and the court found the facts as above stated, and held that the copyright obtained by Daly was good and valid and covered and protected the railway scene already described; that the acts of the defendant were in disregard of the copyright and of plaintiff's exclusive rights therein. Mr. Stephen H. Olin argued the cause and filed a brief for defendant in error. Contentions of counsel sufficiently appear in the opinion. *Mr. Justice Peckham, after stating the[152] facts, delivered the opinion of the court: The first objection made by the plaintiff in error to the judgment in this case is that the circuit court had no jurisdiction of the action because it was brought to recover a penalty or forfeiture under § 4966 of the Revised Statutes, and it was contended that the district courts of the United States have by law exclusive jurisdiction over that class Whether the district courts still have ex ture, and the circuit court had jurisdiction of the action by virtue of § 629 of the Revised Statutes, subdivision 9, which grants jurisdiction to the circuit courts "of all suits at law or in equity arising under the patent or copyright laws of the United States." Section 4966 of the Revised Statutes reads as follows: "Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just." It was also found by the court that the evidence did not authorize an increase of the damages above the minimum amount provided for by § 4966 of the Revised Statutes, and clusive jurisdiction over an action to recover that it had no power to establish a rule of for a forfeiture or a penalty arising from a damages below the minimum amount pro- violation of the copyright act, it is not necesvided for therein, and that such section sary to *here determine, because we think that[153] should be construed as penal rather than § 4966 of the Revised Statutes, upon which remedial in its character. The only testi-this suit is founded, is not a penal statute, mony in this action on the hearing before the and therefore the action in this case is not master as to the number of representations one to recover either a penalty or a forfeiwhich the defendant Brady had given that were infringements of the plaintiff's copy right, and upon which a judgment for damages could be based, was the evidence of the defendant in the equity suit above mentioned, and introduced before the master in this action, and such evidence the court decided was inadmissible for that purpose, up on the ground that evidence obtained from a party by means of judicial proceedings could not be used against him for the enforcement of a penalty; and because of the absence of all legal evidence as to the number of representations the defendant was entitled to judgment, refusing any recovery for damages. [152] *Subsequently, upon application to the court, the cause was opened, and testimony, entirely independent of that of the defendant in the plaintiff's examination of him in the The act of 1856 (11 Stat. at L. 138, chap. accounting before the master in the equity 169) was the first Federal statute which suit, was presented as to the number of times conferred upon the author or proprietor of the play of "After Dark" had been produced any dramatic composition designed or suited by the defendant, with the railroad scene in for public representation, "along with the it, and upon that evidence a finding was sole right to print and publish the said commade that the plaintiff was entitled to judg-position, the sole right also to act, perform, ment against the defendant of $50 for each or represent the same, or cause it to be acted, performance falling within the period of two performed, or represented, on any stage or years prior to the commencement of the ac-which the copyright is obtained." The same public place during the whole period for tion; that is to say, for 126 performances, or the sum of $6,300 with costs. The court restricted the plaintiff's right to damages to two years, because it held that the action was brought to recover a penalty, and that the two years' statute of limitations applied. The defendant brought the case by writ of error before the circuit court of appeals for the second circuit, where the judgment was affirmed Brady v. Daly, 51 U. S. App. 621, 83 Fed. Rep. 1007, 28 C. C. A. 253), and he then act further provided that any "manager, actor, or other person acting, performing, or representing the said composition, without or against the consent of the said author or proprietor, his heirs or assigns, shall be liable for damages to be sued for and recovered by action on the case or other equivalent remedy, with costs of suit in any court of the United States, such damages in all cases to be rated and assessed at such sum not less than one hundred dollars for the first, and |