ing the express company to pay the amount of the war revenue tax on business from one point to another in the state without endeavoring to collect the same from shippers, or requiring them to make the payment thereof before the issuing of receipts or bills of lading, was unconstitutional, null, and void; that the express company, its officers and agents, be restrained from voluntarily complying with the order of the commission of August 2d, 1898, and paying such tax; that the attorney general of the state be restrained from instituting any suit against the express company for the purpose of enforcing the provisions of the above order of the railroad commission; that a perpetual injunction, of the same purport, tenor, and effect be granted to complainants; and that the plaintiffs have such other and further relief in the premises as the nature of the case required and to a court of equity might

of 1898 relating to stamps to be attached to bills of lading, manifests, etc., was amended in important particulars by an act of Congress approved March 2d, 1901, chap. 806. One amendment, which took effect on and after July 1st, 1901, provided that the above part of the act of 1898 should be amended to read as follows:

"Freight: It shall be the duty of every railroad or steamboat company, carrier, or corporation, or person whose occupation is to act as such, except persons, companies, or corporations engaged in carrying on a local or other express business, to issue to the shipper or consignor, or his agent, or person from whom any goods are accepted for transportation, a bill of lading, manifest, or other evidence of receipt and forwarding for each shipment received for carriage and transportation, whether in bulk or in boxes, bales, packages, bundles, or not so inclosed seem meet. or included; and there shall be duly atThe railroad commissioners and the attached and canceled, as is in this act protorney general of the state severally de-vided, to each of said bills of lading, manimurred to the bill. The case having been argued upon the demurrers, Judge Speer delivered an opinion which is reported in 92 Fed. 714.

fests, or other memorandum, and to each duplicate thereof, a stamp of the value of one cent: Provided, That but one bill of lading shall be required on bundles or packThat opinion was accompanied by the fol- ages of newspapers when inclosed in one lowing order, entered March 7th, 1899: general bundle at the time of shipment. "It is now upon consideration ordered, ad- Any failure to issue such bill of lading, judged, and decreed that the prayer that manifest, or other memorandum, as herein the Southern Express Company be enjoined provided, shall subject such railroad or from voluntarily paying the war stamp tax steamboat company, carrier, or corporation, in question be, and the same is hereby, de- or person to a penalty of fifty dollars for nied; ordered, adjudged, and decreed fur- each offense, and no such bill of lading, ther that the defendants, the Railroad Com- manifest, or other memorandum shall be mission of Georgia, and each member there- used in evidence unless it shall be duly of, to wit, the individual defendants, Lean-stamped as aforesaid." 31 Stat. at L. 938, der N. Trammell, Thomas C. Crenshaw, Jr., 945, chap. 806. and Spencer R. Atkinson, be, and the same are hereby, enjoined from any and all order, direction, action, or legal steps instituting or tending to institute, and from any and all proceedings for the recovery of the penalties named in the statute of Georgia in that behalf to enforce compliance with its said order against the Southern Express Company, its officers or agents, as threatened in the order of said commission, dated August 2, 1898, for the reason that said order is null and void, and said commission has no jurisdiction to adjudge and designate the party who shall pay said tax." The court in its opinion said: "It is not deemed necessary to enjoin the Attorney General, for it is presumed that the eminent lawyer who is the official head of the bar of the state will, without such injunction, accord all appropriate respect to the decision of the court."

Upon appeal to the circuit court of appeals the decree of the circuit court was reversed, June 7th, 1900, with directions to dismiss the case, Judge McCormick deliver. ing the opinion of the court, Judge Shelby dissenting. 42 C. C. A. 623, 102 Fed. 794. The case was thereupon brought to this court upon writ of certiorari, and was submitted for decision at the last term.

After the submission of the case in this court the above part of the war revenue act

This change in the law renders it unnecessary to consider any of the important questions determined in the circuit court and circuit court of appeals under the act of 1898. The object of this suit was to prevent the enforcement of the order of the railroad commission based upon its construction of that act. But whatever might be now held as to the meaning and scope of the act of 1898 as applied to express companies, the amendatory statute of 1901, in declaring what companies, corporations, and persons shall attach the required stamp to bills of lading, manifests, and receipts for goods or other property to be transported, distinctly excludes express companies. So that no actual controversy now remains or can arise between the parties. The plaintiffs do not need any relief, because the act of 1901 accomplishes the result they wished.

Although this cause was determined in the circuit court of appeals and was submitted here prior to July 1st, 1901, our judgment must have some reference to the act of 1901. In United States v. The Peggy, 1 Cranch, 103, 109, 2 L. ed. 49, 50, the Chief Justice, delivering the opinion of the court, said: "It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the ap

pellate court, a law intervenes and positive- | 3.
ly changes the rule which governs, the law
must be obeyed, or its obligation denied. If
the law be constitutional, and of that no
doubt in the present case has been expressed,
I know of no court which can contest its
obligation." Mills v. Green, 159 U. S. 651,
653, 40 L. ed. 293, 16 Sup Ct. Rep. 132;
New Orleans Flour Inspectors v. Glover,
160 U. S. 170, 40 L. ed. 382, 16 Sup. Ct. Rep.
321, 161 U. S. 101, 40 L. ed. 632, 16 Sup. Ct.
Rep. 492.

A sult brought in the state court to enjoin the threatened Importation of armed men into a county where a strike existed, on the ground that this would amount to a public nuisance and would endanger the health, morals, peace, and good order of the community, is not removable to a United States circuit court, under the act of March 3, 1887, as corrected by the act of August 13, 1888, as one arising under the Constitution and laws of the United States, since, even assuming that the bill shows upon its face that the relief sought would be inconsistent with the power to regulate commerce, or with regulations established by Congress, or with the 14th Amendment, it only demonstrates that the bill cannot be maintained, and not that the cause of action arose under the Constitution or laws of the United States.

[No. 42.]

cember 2, 1901.

If the cause had not been submitted in the circuit court of appeals until after the act of 1901 took effect, that court, we apprehend, would have dismissed the suit upon the ground that by the operation of that legislation the whole subject-matter of litigation had disappeared, and that the order of the railroad commission, even if originally valid, ceased to have any effect. The Submitted October 23, 1901. Decided Dequestion whether the express company or the shipper was required by the act of 1898 to furnish the required stamp, as well as the question whether the railroad commission had any power to make the order of Western District of Arkansas overruling a which complaint is made, would thus have motion to remand the cause to the state become immaterial, and the dismissal of the court. Reversed and remanded, with a disuit would have resulted without any refer-rection to remand to the state court. ence to the merits of the case as affected by See same case below, 96 Fed. 353. the act of 1898.

1.

state not a citizen-judicial notice-suit arising under Constitution and laws of

United States.

A sult in a state court between a state and foreign corporations is not removable to the United States circuit court as a controversy between citizens of different states, as a state is not a citizen.

2. A United States circuit court cannot, on a petition for removal from a state court of a sult to enjoin the importation of armed men Into Sebastian county, Arkansas, and the town

of Huntington therein, where a strike exists, take judicial notice, for the purpose of main taining jurisdiction, that such persons could only be brought to Huntington by way of the Indian territory, and that the word "import," as used in the bill, means to bring into from another state or foreign country, as the court

cannot make the complainant's case other than it made it by taking judicial notice of facts which it did not choose to rely on in its pleading.

APPEAL from an order of the Circuit

Court of the United States for the

Statement by Mr. Chief Justice Fuller: This was a bill filed in the circuit court of Sebastian county, for the district of kansas, on the relation of Jo Johnson, proseGreenwood, Arkansas, by "The state of Ar-* cuting attorney for the twelfth judicial circuit," against the Kansas & Texas Coal Company and the St. Louis & San Francisco Railroad Company, which "for her cause of action" alleged that the railroad company was "a corporation organized under the laws of the state of Missouri, owning and operat ing a railroad in the twelfth judicial circuit of Arkansas and more particularly in Sebastian county, of said circuit;" that the coal company was "a corporation duly organized under the laws of the state of Missouri, owning and operating a coal mine in Huntington, in the Greenwood district of excitement and condition of hot blood now Sebastian county." "That a high state of prevails between striking miners and their sympathizers in large numbers, on the one side, and said coal company and its employees, on the other. That said coal company is threatening and is about to import into said county and town of Huntington, over the line of their codefendant's railroad, a large number of armed men of the low and lawless type of humanity, to wit, about 200, to the great danger of the public peace, morals, and good health of said county, and more particularly of said town. That said threatened action on the part of said defendant, if permitted to be executed, would become a great public nuisance, and would destory the peace, morals, and good health of said county and town, and would lead to riot, bloodshed, and to the dissemination of contagious and infectious diseases."

The bill prayed "that the defendant Ransas & Texas Coal Company, its agents, serv

Messrs. Joseph M. Hill, James Briz-States, and put forward no ground of relief zolara, and Adiel Sherwood submitted the cause for appellees.

derived from either. There were no averments 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 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 orfliction 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 gov of certain persons by defendants. No stat- ernment, or directly restrained by the Conute of the state was referred to as appli- stitution. The 14th Amendment, in forbidcable, but the enforcement of the police pow-ding a state to make or enforce any law er was sought through the interposition of abridging the privileges or immunities of

•190

brought no controversy in this regard into court, in respect of which resort might be had to judicial knowledge." Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048, 16 Sup. Ct. Rep. 869; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34; Com. v. Wheeler, 162 Mass. 429, 38 N. E. 1115; Partridge v. Strange, 1 Plowd. 77.

citizens of the United States, or to deprive | rely on in their pleading. The averments any person of life, liberty, or property without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, did not invest Congress with power to legislate upon subjects which are within the domain of state legislation. Re Rahrer, 140 U. S. 554, sub nom. Wilkerson v. Rahrer, 35 L. ed. 574, 11 Sup. Ct. Rep. 865. It is true that when the police power and the commercial power come into collision, that which is not supreme must give way to that which is supreme. But how is such collision made to appear?

But even assuming that the bill showed upon its face that the relief sought would be inconsistent with the power to regulate commerce, or with regulations established by Congress, or with the 14th Amendment, as contended, it would only demonstrate that the bill could not be maintained at all, and not that the cause of action arose under the Constitution or laws of the United States.

Defendants argue that the circuit court might have properly taken judicial notice, or did so, of the fact that the persons whose advent was objected to as perilous to the community could only be brought to Huntington by way of the Indian territory, and also that the word "import" as used in the bili meant to bring into from another state or foreign country; that, therefore, "the question is fairly presented by the complaint whether the state of Arkansas has the authority to prevent the coal company and the 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.

When Federal questions arise in cases pending in the state courts, those courts arecompetent, and it is their duty, to decide; them. If errors supervene, the remedy by writ of error is open to the party aggrieved. Robb v. Connolly, 111 U. S. 624, 637, 28 L. ed. 542, 546, 4 Šup. Ct. Rep. 544.

Err.,

(183 U. S. 130)

The word "import" necessarily meant bringing into the county and town from out- SEWARD A. HASELTINE et al, Plffs. in side their boundaries, but we do not think, taking the whole bill together, that as here used its necessary signification was the bringing in from outside of the state.

And as to judicial knowledge, the principle applies "that the right of a court to act upon what is in point of fact known to it A must be subordinate to those requirements of form and orderly communication which regulate the mode of bringing controversies into court, and of stating and conducting them." Thayer, Ev. chap. 7, 281.

v.

CENTRAL NATIONAL BANK.

Appeal--final judgment.

judgment reversing a judgment of the trial court granting a recovery of usurlous interest under U. S. Rev. Stat. § 5198, upon the ground that the plaintiffs had neither paid nor tendered the principal sum due, and remanding the cause "for further proceedings to be had therein, in conformity with the opinion of this court herein delivered," is not a final judgment to which a writ of error will lle.

[No. 62.]

cember 2, 1901.

N ERROR to the Supreme Court of the

I State of Missouri to review a judgment reversing a judgment of the Circuit Court for Greene County in favor of plaintiffs in an action to recover usurious interest. Dismissed.

In Mountain View Min. & Mill. Co. v. McFadden, 180 U. S. 533, 45 L. ed. 656, 21 Sup. Ct. Rep. 488, which was a petition for removal, the suit was one brought in support of an adverse claim under the Revised Statutes, §§ 2325, 2326, and it had been previously decided that such a suit was not one aris- Submitted October 29, 1901. Decided Deing under the laws of the United States in such a sense as to confer jurisdiction on the Federal courts regardless of the citizenship of the parties. And we said: "It is conceded by counsel on both sides that those de cisions are controlling, unless the circuit court was entitled to maintain jurisdiction by taking judicial notice of the fact that the Mountain View lode claim was located upon what had been or was an Indian reservation,' and 'of the act of Congress declaring the north half of the reservation upon which the claim was located, to have been restored to the public domain;' notwithstanding no claim based on these facts was stated in the complaint. But the circuit court could not make plaintiffs' case other than they made it by taking judicial notice of facts which they did not choose to 22 S. C.-4.

See same case below, 155 Mo. 66, 56 S. W. 895.

Statement by Mr. Justice Brown:

This was an action brought originally in the circuit court for Greene county, Missouri, by the Haseltines against the Central National Bank, to recover double the amount of certain alleged usurious interest paid by the plaintiffs to defendant, and which they sought to recover under the 2d clause of

Rev. Stat. § 5198, providing that "in case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same."

McComb v. Knox County Comrs. 91 U. &. 1, 23 L. ed. 185, is a case in point. That was a writ of error to the court of common pleas of the state of Ohio. The case had been taken to the supreme court of the state, where the judgment of the common pleas was reversed for error in sustaining a demurrer to the replies, and overruling that to the answer. Upon suggestion by defendant that he might ask leave to amend his answer, the case was remanded "for further proceedings according to law." Upon the mandate being filed, defendant did not ask leave to amend his answer, but elected to rely upon his defense already made. Thereupon the court gave judgment against him, and he sued out a writ of error from this court. We held that the judgment of the supreme court, being one of reversal only, was not final; that so far from putting an 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 amHaseltine submitted the cause for plain-ple power was left in the common pleas to

The trial court rendered judgment in favor of the plaintiffs for $831.70. From this judgment defendant appealed to the supreme court of the state, which reversed the judg. ment of the trial court upon the ground that the plaintiffs had neither paid nor tendered the principal sum due, and remanded the cause "for further proceedings to be had therein, in conformity with the opinion of this court herein delivered."

Defendant moved to dismiss the writ of error upon the ground that this was not a final judgment.

tiffs in error.

Mr. John Ridout submitted the cause for defendant in error.

*Mr. Justice Brown delivered the opinion

of the court:

The motion to dismiss must be granted. We have frequently held that a judgment reversing that of the court below, and remanding the case for further proceedings, is not one to which a writ of error will lie. The case of Mower v. Fletcher, 114 U. S. 127, 29 L. ed. 117, 5 Sup. Ct. Rep. 799, is not in point, as the judgment of the supreme court of the state remanded that case to the inferior court, with an order to enter a specified judgment, nothing being left to the judicial discretion of the court below. A like ruling was made in Atherton v. Fowler, 91 U. S. 143, 23 L. ed. 265, and Tippecanoe County Comrs. v. Lucas, 93 U. S. 108, 23

L. ed. 822.

To

permit the parties to make a new case by amendment; that the final judgment was that of the common pleas; that "it may have been the necessary result of the decision termination; but it is none the less, on that of the question presented for its dewas, when rendered, open to review by the account, the act of the common pleas," and supreme court. The writ was dismissed. A similar case is that of Great Western Teleg. Co. v. Burnham, 162 U. S. 339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850.

Dismissed.

Err.,

(183 U. S. 132)

This writ of error is therefore dismissed 4 How. 465, 11 L. ed. 1058; Pepper v. Dunupon the authority of Brown v. Union Bank, lap, 5 How. 51, 12 L. ed. 46; Tracy v. Hol combe, 24 How. 426, 16 L. ed. 742; Moore v. Robbins, 18 Wall. 588, 21 L. ed. 758; 8t. Clair County v. Lovingston, 18 Wall. 628, 21 L. ed. 813; Parcels v. Johnson, 20 Wall 653, 22 L. ed. 410; Baker v. White, 92 U. 8. 176, 23 L. ed. 480; Bostwick v. Brinkerhoff, While the judgment may dispose of the 15; Johnson v. Keith, 117 U. S. 199, 29 L 106 U. S. 3, 27 I. ed. 73, 1 Sup. Ct. Rep. case as presented, it is impossible to antici-ed. 888, 6 Sup. Ct. Rep. 669. pate its ultimate disposition. It may be voluntarily discontinued, or it may happen that the defeated party may amend his pleading by supplying some discovered de- SEWARD A. HASELTINE et al., Plffs. in fect, and go to trial upon new evidence. determine whether, in a particular case, this may or may not be done, might involve an examination, not only of the record, but even of the evidence in the court of original ju: risdiction, and lead to inquiries with regard to the actual final disposition of the case by the supreme court, which it might be diffi cult to answer. We have, therefore, always made the face of the judgment the test of its finality, and refused to inquire whether, in case of a new trial, the defeated party would stand in a position to make a better case. The plaintiffs in the case under consideration could have secured an immediate review by this court, if the court as a part of its judgment of reversal had ordered the circuit court to dismiss their petition, when, under Mower. Fletcher, they might have sued out Submitted writ of error at once.

v.

CENTRAL NATIONAL BANK.

National banks—usurious interest—set-off.

Usurious interest paid in cash upon renewals of a note given to a national bank, and of all other notes of which it was a consolidation, cannot be set off in an action upon the note, as the remedy provided by U. S. Rev. Stat. 5198, where such usurious interest has been actually paid,—vis., a recovery in an action In the nature of an action of debt, of twice the amount of the interest thus paid,—is ex« clusive.

[No. 63.]

October 29, 1901. Decided December 2, 1901.