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• 187

ants, and employees, and each of them, be a court of equity by way of prevention of restrained and prohibited from importing an impending public nuisance. The circuit or causing to be imported or brought into court was of opinion that the bill could not Sebastian county or the twelfth judicial cir- be maintained; but, without intimating any cuit of Arkansas, and that the St. Louis conclusion to the contrary, or criticising its & San Francisco Railroad Company, its formal susficiency, the question that meets agents, servants, and

employees, each, us on the threshold is whether the case both, and all of them,—be enjoined, re- ought to have been remanded to the state strained, and prohibited from importing, court. hauling, or bringing, or causing to be im. We need not spend any time on the conported, hauled, or brought, in the said coun. tention that this was a controversy between ty or circuit, and from unloading or at- citizens of different states. The circuit court tempting to unload from any of its cars in correctly held otherwise. The state of Arsaid county or circuit, any and all large kansas was the party complainant, and a bodies of armed, lawless, or riotous persons state is not a citizen. Postal Teleg. Cable Co. or persons affected with contagious or in- v. United States, 155 U. S. 482, sub nom. fectious diseases that might endanger the Postal Teleg. Cable Co. v. Alabama, 39 L. peace, good order, or good health of the ed. 231, 15 Sup. Ct. Rep. 192. state, or create a public nuisance in said We inquire, then, if the cause was removacounty or circuit, under the pains and penal. ble because arising under the Constitution ty of the law."

or laws of the United States. A preliminary injunction was granted and The general policy of the act of March 3, process issued. Defendants filed their peti- 1887, as corrected by the act of August 13, tion and bond for removal, and made appli- | 1888 (24 Stat. at L. 552, chap. 373; 25 Stat. cation therefor, which was denied by the cir. at L. 433, chap. $66), as is apparent on its cuit court of Sebastian county, whereupon face, and as has been repeatedly recognized defendants filed in the United States circuit by this court, was to contract the jurisdiccourt for the western district of Arkansas ation of the circuit courts. Those cases, and certified transcript of the record and of the those only, were made removable under § 2, pleadings and papers in the case.

in respect of which original jurisdiction was The petition for removal averred that Jo given to the circuit courts by § 1. Hence Johnson was a citizen of Arkansas, that de it has been settled that a case cannot be refendants were citizens of Missouri, and that moved from a state court into the circuit the controversy in suit was wholly between court of the United States on the sole citizens of different states; and also that, ground that it is one arising under the Con. treating the state of Arkansas as complain-stitution, laws, or treaties of the United ant, the suit was one arising under the Con- i States, unless that appears by plaintiff's stitution and laws of the United States be- statement of his own claim; and if it does cause defendants were engaged in interstate not so appear, the want of it cannot be supcommerce, and the action was an unlawful plied by any statement of the petition for interference therewith by reason of the com- removal or in the subsequent pleadings. merce clause of the Federal Constitution and And, moreover, that jurisdiction is not conof laws passed in pursuance thereof; and ferred by allegations that defendant intends which constituted a defense in the premises. to assert a defense based on the Constitution

Complainant moved to remand th cause, or a law or treaty of the United States, or and defendants moved to dissolve the injunc. under statutes of the United States or of a tion and that complainant be restrained state, in conflict with the Constitution. from the prosecution of the suit in the state Tennessee v. Union & Plantcrs' Bank, 152 court. The circuit court of the United U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; States overruled the motion to remand, and Chappell v. Waterworth, 155 U. S. 102, 39 sustained the motion to dissolve, but de- L. ed. 85, 15 Sup. Ct. Rep. 34; Walker v. clined to enjoin complainant. 96 Fed. 353. Collins, 167 U. S. 57, 42 L. ed. 76, 17 Sup. The cause came on subsequently for final Ct. Rep. 738; Sawyer v. Kochersperger, 170 hearing, the bill was dismissed, and this ap- U. S. 303, 42 L. ed. 1046, 18 Sup. Čt. Rep. peal was prosecuted.

946; Florida C. & P. R. Co. v. Bell, 176 U.

S. 321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399. Mr. Ben T. DuVal submitted the cause *In this case the state asserted no right for appellant.

under the Constitution or laws of the United Messrs. Joseph M. Hill, James Briz- States, and put forward no ground of relief zolara, and Adiel Sherwood submitted derived from either. There were no averthe cause for appellees.

ments on which the state could have invoked

the original jurisdiction of the circuit court Mr. Chief Justice Fuller delivered the under $ 1 of the act, and that is the test of opinion of the court:

the right of removal under $ 2. The gravamen of the bill was the injury The police power was appealed to, the to the health, morals, peace, and good order power to protect life, liberty, and property, of the people of the town and county, the in- to conserve the public health and good or. fliction of which was alleged to be threat- der, which always belonged to the states, ened by the* bringing within their precincts and was not surrendered to the general gove of certain persons by defendants. No stat- ernment, or directly restrained by the Con. ute of the state was referred to as appli- stitution. The 14th Amendment, in forbid. cable, but the enforcement of the police pow. I ding a state to make or enforce any law er was sought through the interposition of abridging the privileges or immunities of citizens of the United States, or to deprive rely on in their pleading. The averments any person of life, liberty, or property with brought no controversy in this regard into out due process of law, or to deny to any per court, in respect of which resort might be son within its jurisdiction the equal pro- had to judicial knowledge.” Oregon Short tection of the laws, did not invest Congress Line & U. N. R. Co. v. Škottowe, 162 U. S. with power to legislate upon subjects which 490, 40 L. ed. 1048, 16 Sup. Ct. Rep. 869; are within the domain of state legislation. Chappell v. Waterworth, 155 U. S. 102, 39 Re Rahrer, 140 U. S. 554, sub nom. Wilker. L. ed. 85, 15 Sup. Ct. Rep. 34; Com. v. son v. Rahrer, 35 L. ed. 574, 11 Sup. Ct. Rep. Wheeler, 162 Mass. 429, 38 N. E. 1115; 865. It is true that when the police power Partridge v. Strange, 1 Plowd. 77. and the commercial power come into colli- But even assuming that the bill showed sion, that which is not supreme must give upon its face that the relief sought would way to that which is supreme. But how is be inconsistent with the power to regulate such collision made to appear?

commerce, or with regulations established Defendants argue that the circuit court by Congress, or with the 14th Amendment, might have properly taken judicial notice, or as contended, it would only demonstrate that did so, of the fact that the persons whose the bill could not be maintained at all, and advent was objected to as perilous to the not that the cause of action arose under the community could only be brought to Hunt. Constitution or laws of the United States. ington by way of the Indian territory, and When Federal questions arise in cases also that the word "import” as used in the pending in the state courts, those courts are bili meant to bring into from another state competent, and it is their duty, to decide or foreign country; that, therefore, “the ques- them. If errors supervene, the remedy by tion is fairly presented by the complaint writ of error is open to the party aggrieved. whether the state of Arkansas has the uu. Robb v. Connolly, 111 U. S. 624, 637, 28 L. thority to prevent the coal company and the ed. 542, 546, 4 Sup. Ct. Rep. 544. railroad company from bringing into the Decree reversed and cause remanded, with state, over the line of this railroad, laborers a direction to remand to the state court. from other states or foreign countries;" and Costs of this court and of the circuit court hence that the circuit court had jurisdic- to be paid by the appellees and defendants. tion. We do not agree with either premise or conclusion. The word “import” necessarily meant

(183 U. S. 130) bringing into the county and town from out- SEWARD A. HASELTINE et ah, Piffs. in side their boundaries, but we do not think,

Err., taking the whole bill together, that as here used its necessary signification was the CENTRAL NATIONAL BANK. bringing in from outside of the state. And as to judicial knowledge, the princi.

Appcal--final judgment. ple applies "that the right of a court to act upon what is in point of fact known to it a judgment reversing a judgment of the trial must be subordinate to those requirenients court granting a recovery of usurious interest of form and orderly communication which

under U. 8. Rev. Stat. § 5198, upon the regulate the mode of bringing controversies

ground that the plaintiffs had nelther paid

nor tendered the principal sum due, and re into court, and of stating and conducting

manding the cause "for further proceedings them.” Thayer, Ev. chap. 7, 281.

to be had therein, in conformity with the In Mountain View Min. & Mill. Co. v. MC

opinion of tbis court herein delivered," is not Fadden, 180 U. S. 533, 45 L. ed. 656, 21 Sup. a final judgment to which a writ of error will Ct. Rep. 488, which was a petition for removal, the suit was one brought in support of an adverse claim under the Revised Stat

(No. 62.) utes, $$ 2325, 2326, and it had been previous. ly decided that such a suit was not one aris. Submitted October 29, 1901. Decided Deing under the laws of the United States in

cember 2, 1901. such a sense as to confer jurisdiction on thic Federal courts regardless of the citizenship

N ERROR to the Supreme Court of the of the parties. And we said: “It is conceded by counsel on both sides that those decisions are controlling, unless the circuit for Greene County in favor of plaintiffs in

reversing a judgment of the Circuit Court court was entitled to maintain jurisdiction

an action to

usurious interest. by taking judicial notice of the fact 'that Dismissed. the Mountain View lode claim was located

See same case below, 155 Mo. 66, 56 S. upon what had been or was an Indian reg- W. 895. ervation,' and 'of the act of Congress declar. ing the north half of the reservation

Statement by Mr. Justice Brown: upon which the claim

located, This was an action brought originally in to have been restored to the public domain;' the circuit court for Greene county, Misnotwithstanding no claim based on these souri, by the Haseltines against the Central facts was stated in the complaint. But the National Bank, to recover double the amount circuit court could not make plaintills' case of certain alleged usurious interest paid by other than they made it by taking judicial the plaintiffs to defendant, and which they notice of facts which they did not choose to sought to recover under the 2d clause of

22 S. C.-.





Rev. Stat. § 5198, providing that "in case McComb v. Know County Comr8. 91 U. & the greater rate of interest has been paid, 1, 23 L. ed. 185, is a case in point. That the person by whom it has been paid, or his was a writ of error to the court of common legal representatives, may recover back, in pleas of the state of Ohio. The case had an action in the nature of an action of debt, been taken to the supreme court of the stato, twice the amount of the interest thus paid where the judgment of the common pleas from the association taking or receiving the was reversed for error in sustaining a de same."

murrer to the replies, and overruling that to The trial court rendered judgment in fa- the answer. Upon suggestion by defendvor of the plaintiffs for $831.70. From this ant that he might ask leave to amend his anjudgment defendant appealed to the supreme swer, the case was remanded “for further court of the state, which reversed the judg: proceedings, according to*law.", Upon tho ment of the trial court upon the ground mandate being filed, defendant did not ask that the plaintiffs had neither paid nor ten. leave to amend his answer, but elected to dered the principal sum due, and remanded rely upon his defense already made. Therethe cause "for further proceedings to be had upon the court gave judgment against him, therein, in conformity with the opinion of and he sued out a writ of error from this this court herein delivered.”

court. We held that the judgment of the Defendant moved to dismiss the writ of supreme court, being one of reversal only, error upon the ground that this was not a was not final; that so far from putting an final judgment.

end to the litigation it purposely left it

open; that the law of the case upon the Messrs. James Baker and Seward A. pleadings as they stood was settled, but amPaseltine submitted the cause for plain-ple power was left in the common pleas to tiffs in error.

permit the parties to make a new case by Mr. John Ridout submitted the cause amendment; that the final judgment was for defendant in error.

that of the common pleas; that "it may have

been the necessary result of the decision * Mr. Justice Brown delivered the opinion termination; but it is none the less, on that

of the question presented for its deof the court:

The motion to dismiss must be granted. account, the act of the common pleas,” and We have frequently held that a judgment supreme court. The writ was dismissed. A

was, when rendered, open to review by the reversing that of the court below, and re similar case is that of Great Western Teleg. manding the case for further proceedings, Co. v. Burnham, 162 U. S. 339, 40 L. ed. is not one to which a writ of error will lie. 991, 16 Sup. Ct. Rep. 850. The case of Mower v. Fletcher, 114 U. S.

This writ of error is therefore dismissed 127, 29 L. ed. 117, 5 Şup. Ct. Rep: 799, is not upon the authority of Brown v. Union Bank, in point, as the judgment of the supreme court of the state remanded that case to lap, 5 How. 51, 12 L. ed. 46; Tracy v, HOL

How. 465, 11 L. ed. 1058; Pepper v. Dun. the inferior court, with an order to enter a combe, 24 How. 426, 16 L. ed. 742; Moore specified judgment, nothing being left to the

v. Robbins, 18 Wall. 588, 21 L. ed. 758; 8t. judicial discretion of the court below. A Clair County v. Lovingston, 18 Wall. 628, like ruling was made in Atherton v. Fowler, 21 L. ed. 813; Parcels v. Johnson, 20 Wall. 91 U. S. 143, 23 L. ed. 265, and Tippecanoe 653, 22 L. ed. 410; Baker v. White, 92 U. 8. County Comts. v. Lucas, 93 U. 8. 108, 23170, 23 L ed. 430; Bostwick v. Brinkerhoff, L. od. 822.

106 U. S. 3, 27 I. ed. 73, 1 Sup. Ct. Rep. While the judgment may dispose of the 16; Johnson v. Keith, 117 U. 8. 199, 29 La case as presented, it is impossible to antici. ed. 888, 6 Sup. Ct. Rep. 669. pate its ultimate disposition. It may be Dismissed. voluntarily discontinued, or it may happen that the defeated party may amend his

(183 U. S. 182) pleading by supplying some discovered de SEWARD A. HASELTINE et al., Plffe. in fect, and go to trial upon new evidence. To

Err., determine whether, in a particular case, this may or may not be done, might involve an

CENTRAL NATIONAL BANK. examination, not only of the record, but even of the evidence in the court of original ju; National banks-usurious interest-set-off. risdiction, and lead to inquiries with regard to the actual final disposition of the case by Usurlous Interest pald in cash upon renewals the supreme court, which it might be diffi

of a note given to a national bank, and of all cult to answer. We have, therefore, always other notes of which it was a consolidation, made the face of the judgment the test of its cannot be set off in an action apon the noto, finality, and refused to inquire whether, in as the remedy provided by U. 8. Rev. Stat. i case of a new trial, the defeated party would 6198, where such usurious interest has been stand in a position to make a better case.

actually paid, -ple., a recovery in an action

in the nature of an action of debt, of twice The plaintiffs in the case under consideration

the amount of the lotorest thus paid,-uu could have secured an immediate review by

clusiva this court, if the court as a part of its judgment of reversal had ordered the circuit

[No. 63.] court to dismiss their petition, when, under Mower 4. Fletcher, they might have sued out Submitted October 29, 1901. Deoided Do • writ of error at once.

oomber 2, 1901.

• 133

N ERROR to the Supreme Court of the such note, and of all others of which it was. affirming a judgment of the Circuit Court In this case, defendants sought to show of Greene County in favor of plaintiff in that they had paid to the plaintiff bank an action on a promissory note. Affirmed. within two years prior to the execution of

See same casc below, 155 Mo. 58, 55 S. W. this note, upon other notes of which this was 1015.

a consolidation, and also upon this note,

usurious interest aggregating $580, which Statement by Mr. Justice Brown: they asked to have deducted from the prin*This was an action instituted in the cir. cipal sum of $2,240, represented by this note, cuit court of Greene county, Missouri, by thereby reducing the plaintiff's claim to $1,the Central National Bank, to recover of the 660. defendants the amount of a promissory note We understand it to be conceded that, as for $2,240, executed June 15, 1896, by two the note in question was given to a national of the defendants as principals and two oth- bank, the definition of usury and the penal. as as sureties.

ties affixed thereto must be determined by The answer was a general denial and a the national banking act, and not by the law special defense of usury in the original of the state. Farmers & M. Nat. Bank v. notes, and partial payments, as set up in Dearing, 91 U. S. 29, 23 L. ed. 196. In that the several paragraphs of the answer. case it was held that a law of New York for.

The case was referred to a referee, who re feiting the entire debt for usury was super. ported the note sued upon to be a renewal seded by the national banking law, and that note, and a consolidation of five original such law was only to be regarded in deternotes, the first of which was for $800, given inining the penalty for usury. July 27, 1891; the second for $100, of the That part of the original national bank. Bame date; the third for $500, dated Janu. ing act which deals with the subject of usury ary 24, 1892, and credited by $100 payment and interest is now embraced in 88 5197 and thereon; the fourth for $340, dated Janu- 5198 of the Revised Statutes, the first one ary 16, 1893, and the fifth and last for $600, of which authorizes national banks to chargo dated May 29, 1893.

interest "at the rate allowed by the laws of The referee further found that the defend the state," and, when no rate is fixed by ants had received on this note $2,240 (or such laws, a maximum rate of 7 per cent. rather out of the notes constituting that The next section is as follows: note) the sum of $2,199.35 in cash, making

"5198. The taking, receiving, reserving, or the amount reserved out of the note when it charging a rate of interest greater than is was made $40.65. That there had been paid allowed by the preceding section, when know. cash discounts upon the several renewals of ingly done, shall be deemed a forfeiture of the notes which constituted the $2,240 note the entire interest which the note, bill, or sued upon, down to October 24, 1894, exclu- other evidence of debt carries with it, or sive of the amounts reserved out of the which has been agreed to be paid thereon. notes at the time they were originally given, In case the greater rate of interest has been the sum of $566.70, which cash discounts paid, the person by whom it has been paid, a were paid in advance at the dates of the sev. or his legal representatives, may recover eral renewals. That the whole amount of back in an action, in the nature of an action discounts and interest paid, as well as those of debt, twice the amount of the interest thus deducted by the bank, upon all said loans paid from the association taking or receivfrom the beginning to the end down to and ing the same; provided such action is comincluding the note sued on, was $947.50. menced within two years from the time the That these payments were made in excess of surious transaction occurred.” the legal rate for said loans.

Two separate and distinct classes of cases Upon this report the court entered judg. are contemplated by this section; first, those ment in favor of the plaintiff for $2,199.35 wherein usurious interest has been taken, re(or, apparently, by mistake $2,199), that beceived, reserved, or charged, in which case ing the face of the note sued on after de there shall be "a forfeiture of the entire in. ducting the discount of $40.65, reserved terest which the note, bill, or other evidenco when the note was executed. Upon appeal of debt carries with it, or which has been to the supreme court this judgment was af- ugreed to be paid thereon;" second, in case firmed (155 Mo. 58, 55 S. W. 1015), and de- usurious interest has been paid, the person fendants sued out this writ of error.

paying it may recover back twice the

amount of the interest “thus paid from the Messrs James Baker and Seward A. association taking or receiving the same.” Haseltine submitted the cause for plain. While the first class refers to interest takHiffs in error.

en and received, as well as that reserved or * Mr. John Ridout submitted the cause charged, the latter part of the clause apfor defendant in error.

parently limits the forfeiture to such inter

est as the evidence of debt carries with it, Mr. Justice Brown delivered the opin- or which has been agreed to be paid, in con. ion of the court:

tradistinction to interest actually paid, The only question involved in this case is which is covered by the second clause of the whether, in an action upon a note given to section. Carrying this perfectly obvious e national bank, the maker may set off usu- distinction in mind, the cases in this court rious interest paid in cash upon renewals of 'are entirely harmonious.

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That of Brovon v. Marion Nat. Bank, 169 by way of offset or payment of the bill in U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. suit, and that the same rule applied to the 390, arose under the first clause. The facts payment of interest upon other bills of exo are not stated in the report of the case, but change which the defendants sought to rereferring to the original record, it appears cover back. that plaintiff sued the bank to recover twice The case of Driesbach V. Second Nat. the amount of certain usurious interest paid Bank, 104 U. S. 52, 26 L. ed. 658, was a liker to it. Another action was consolidated with suit by a bank upon a note, upon several rethis, in which plaintiff sought to enjoin de newals of*which usurious interest had been fendant from proving certain notes against paid. It was said that, as the claim was the estate of which he was assigneo, in which not for interest stipulated for and included a large amount of usurious interest had been in the note sued on, but for the application included.

of what had been actually paid as interest In the opinion a distinction is drawn be to the discharge of principal, there could be tween usurious interest carried with the evi- | no set-off against the face of the notes. dence of debt or which has been agreed to be In Stephens v. Monongahela Nat. Bank, paid, and interest which has actually been 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. paid, and it was said that interest included 336,-a similar case of interest actually in a renewal note, or evidenced by a sepa- paid, -the averments of the defense were rate note, does not thereby cease to be inter-made under the first clause of the section; est within the meaning of $ 5198, and become that “the bank knowingly took, received, and principal; and that, in a suit by a national charged” usurious interest, but as it elsebank upon the note, the debtor may insist where appeared that the interest stipulated that the entire interest, legal and usurious, had not been included in the note, but that included in his written obligation and agreed interest had been actually paid at the time to be paid, but which has not been actually of the discount and renewals, which it was paid, shall be either credited on the note sought to apply to the discharge of the prin. or eliminated from it, and judgment given cipal, the defense was held insufficient. only for the original principal debt, with The construction of both clauses of this interest at the legal rate from the com section having been thus settled by this mencement of the suit; and that the forfeit- court, it only remains to determine to which ure declared by the statute is not waived or class of cases the one under consideration avoided by giving a separate note for the properly belongs. As to this there can be interest, or by giving a renewal note in no room for doubt. The referee finds that which is included the usurious interest. It there was paid cash discounts on the several was further held that interest included in a renewals of the notes which constitute the renewal note is not interest paid, since, if $2,240 note, as well as the renewal of said it were so, the borrower could, under the sec-note as executed, down to October 24, 1894, ond clause of the section, sue the lender and exclusive of the amounts reserved out of the recover back twice the amount of the inter- notes at the time they were originally given, est thus paid, when he had not, in fact, paid the sum of $566.70, which cash discounts the debt nor any part of the interest as such. were paid in advance at the date of the seve The words, “in case the greater rate of in- eral renewals. He further found that the terest has been paid,” in $ 5198, refer to in- defendants in their answer are only asking terest actually paid, as distinguished from credit for the payments down to and includ. interest included in the note and “agreed to ing October 29, 1894, which aggregate the be paid.”

sum of $540.40.” Under the rulings last The cases under the second clause of the above cited the person making these cash section

Barnet v. payments can only recover them back by a Muncie Nat. Bank, 98 U. S. 555, 25 L. ed. direct action against the association taking 212, was an action by a national bank upon or receiving the same. a bill of exchange. Defendants set up that The supreme court of Missouri was corthe acceptors had been constant borrowers rect in holding that the defendants could from the bank for several years, and that it not be allowed set-off or credit for the usuhad taken from then a large amount of usu- rious interest thus paid, the remedy providrious interest; that the bill in suit was the ed by the statute being exclusive, and its last of eight renewals, and that illegal inter- judgment is therefore affirmed. est had been taken upon the series to the amount of $1,116, which it was insisted

(183 U. S. 144) should be applied as a payment upon the bill in question. It was also insisted that illegal H. L. PINNEY, C. L. Pinney, W. C. Patter.

son, and Thomas Brooks, Piffs. in Err., interest had been taken upon other bills of exchange to the amount of $6,363.24, and that the defendants were entitled to recover

R. T. NELSON. dounle this amount from the bank. It was Impairing obligation of contractlar enact. held that the state statutes upon the subject

ed after making of contract-personal liaof usury should be laid out of view, and that

bility of stockholder in foreign corporawhere a statute created a new right or of.

tion, fense and provided a specific remedy or punishment, that remedy alone could apply; 1. The obligation of the contract of the stock. that the payment of usurious interest being holders in a foreign corporation cannot be distinctly averred, it could not be recovered deemed to be impaired by the provision of





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