In several cases we have held that the risprudence in Illinois, rather than the genconstruction of a statute of another state, eral law of the land. and its operation elsewhere, did not neces- Since the above case we have repeatedly sarily involve a Federal question. The case held that the mere construction by a state is practically governed by that of the Chi- court of a statute of another state, without cago & A. R. Co. v. Wiggins Ferry Co. 119 questioning its validity, does not, with posU. S. 615, 30 L. ed. 519, 7 Sup. Ct. Rep. sibly some exceptions, deny to it the full 398. In that case suit was brought in a faith and credit demanded by the statute in state court by the ferry company against order to give this court jurisdiction. Glenn the railroad to recover damages for not em- v. Garth, 147 U. S. 360, 37 L. ed. 203, 13 ploying the ferry company for the transpor- Sup. Ct. Rep. 350; Lloyd v. Matthews, 155 tation of persons and property across the U. S. 222, 39 L. ed. 128, 15 Sup. Ct. Rep. river, as by its contract it was bound to do. 70; Banholzer v. New York L. Ins. Co. 178 The defendant pleaded that it had no power U. S. 402, 44 L. ed. 1124, 20 Sup. Ct. Rep. to make the contract; that the same was 972; Johnson v. New York L. Ins. Co. 187 in violation of the laws of Illinois, con-U. S. 491, 47 L. ed. 273, 23 Sup. Ct. Rep. trary to the public policy thereof, and was 194; Finney v. Guy, 189 U. S. 335, 47 L. void. The statutes were put in evidence, ed. 839, 23 Sup. Ct. Rep. 558. but their construction and operative effect

The court of errors and appeals, concedwere disputed. The supreme court of the ing the general rule both in New Jersey and state held that the contract was interpreted New York to be that a contract, void by the correctly by the court below, and that it law of the state where made, will not be was not ultra vires, contrary to public enforced in the state of the forum (Columpolicy, or in restraint of trade. It was ar-bia F. Ins. Co. v. Kinyon, 37 N. J. L. 33, gued here by the railroad company that, by and Hyde v. Goodnow, 3 N. Y. 266), held law and usage of Illinois, the charter of the that the state statute of New York did not company in that state made the contract declare the contract void, and that there was ultra vires. We held that the law of Illino decision in that state holding it to be so. nois to that effect should have been proved In fact, the only case in the court of apas a fact, either by decisions of its courts peals in New York (Neuchatel Asphalt Co. or by law or usage in that state; that v. New York, 155 N. Y. 373, 49 N. E. 1043) state courts are not charged with a knowl. is the other way. The court of appeals in edge of the laws of another state; but they that case held that the purpose of the act have to be proved, and that, while Federal was not to avoid contracts, but to provide courts exercising their original jurisdiction effective supervision and control of the busiare bound to take notice of the laws of the ness carried on by foreign corporations; several states, yet this court, when exer

that no penalty for noncompliance was procising its appellate jurisdiction from state vided, except the suspension of civil remecourts, whatever was the matter of fact in dies in that state, and none others would be that court is matter of fact here (citing implied. This corresponds with our rulHanley v. Donoghue, 116 U. S. 1, 29 L. ed. ings upon similar questions. Fritts y. Palm.. 535, 6 Sup. Ct. Rep. 242). We said: “Whether, 132 U. S. 282, 33 L. ed. 317, 10 Sup. Ct. er the charter of this company, in its opera- Rep. 93. tion on the contract now in suit, had any

With respect to the Pennsylvania statute, different effect in Illinois from what it the court held that, although the Pennsyl. would have, according to the principles of vania courts had held that a contract made general law which govern like charters and in violation of the Pennsylvania statute was like contracts in Missouri and elsewhere void, yet that the third plea did not conthroughout the country, was, under this tain allegations which showed that the note rule, a question of fact in the Missouri ried on in Pennsylvania, and not in con

was given in pursuance of business carcourt, as to which no testimony whatever summation of a single transaction; and alwas offered.”

though it was averred that plaintiff did No proof. having been offered to support business in that state, it was not averred the averment that the contract was in vio- that the note had any connection with the lation of the laws of Illinois, the defense -business carried on in Pennsylvania, or that relying on the general claim that the con- it was given for goods sold in Pennsylvania. tract was illegal, it was held that no Federal The admitted averments may be true, and question was involved, and the case was yet the note may have been given for an obdismissed. It was said that it should have ligation contracted out of the state of Pennappeared on the face of the record that the sylvania, and consequently, not in violation facts presented for adjudication made it of its laws. Construing the third plea most necessary for the court to consider the act strongly against the pleader, the conclusion of incorporation, in view of the peculiar ju-' was that it disclosed no defense in the ac

tion. This was purely a local question, and The action was brought to recover the is not assignable as error here.

amount of license ordained under an ordiWhether, aside from the Federal questionnance passed May 31, 1900, by the superdiscussed, the courts of New Jersey should visors of the respondent county, under what have sustained this action upon principles is known as “the county government act." of comity between the states, was also a Cal. Stat. 1897, chap. 277. The act gave question within the exclusive jurisdiction of power to the boards of supervisors of counthe state court. Finney v. Guy, 189 U. S. ties as follows: 335, 47 L. ed. 839, 23 Sup. Ct. Rep. 558. “To license for regulation and revenue,

The writ of error must, therefore, be dis- all and every kind of business not prohibitmissed.

ed by law, and transacted and carried on in such county, and all shows, exhibitions, and

lawful games carried on therein, to fix the (196 U. S. 553)

rates of license tax upon the same, and to P. J. FLANIGAN, Petitioner,

provide for the collection of the same, by

suit or otherwise.” $ 25, subd. 25. COUNTY OF SIERRA.

In pursuance of the power conferred the

ordinance in controversy was enacted, § 1 Courts when Federal courts will follow de- of which is as follows: cisions of state courts.

“Each and every person, copartnership, 1. The validity, under the state laws, of an of raising, grazing, herding, or pasturing

firm, or corporation engaged in the business ordinance adopted by a board of county supervisors, is settled, so far as the Federal courts sheep in the county of Sierra, state of Caliare concerned, by a decision of the highest fornia, must annually procure a license court of that state upholding a similar ordi- therefor from the license collector, and must nance.

pay therefor the sum of ten (10) cents for 2. The decisions of the California supreme each sheep or lamb owned by, in the posses

by ;, 1901, of the authority conferred on county sion of, or under the control of such perand municipal legislative bodies to license for son, copartnership, firm, or corporation, and revenue abates a suit previously brought to used in such business in said county.” recover a license fee imposed under an ordinance which, under the decisions of that made by affidavit, stating the number of

Application for a license is required to be court, must be deemed a revenue measure, will be followed by the Federal courts.

sheep owned by and in possession of the ap

plicant. “The license tax,” it is provided, [No. 121.]

“shall be deemed a debt due to the county,”

which the district attorney of the county is Argued January 12, 1905. Decided Febru- directed to sue for; and a judgment is auary 20, 1905.

thorized. In case of recovery by the coun

ty, $50 damages and costs must be added to ON N WRIT of Certiorari to the United the judgment. All money collected for li.

States Circuit Court of Appeals for the cense, less a fee of 10 per cent for collecNinth Circuit to review a judgment which tion, “shall be paid over to the county treasaffirmed a judgment of the Circuit Court for urer, as other moneys are, and be placed to the Northern District of California, en the credit of the general funds of the counforcing a license fee imposed by the board ty.” Years, within the meaning of the orof supervisors of Sierra County, in that dinance, shall commence on the 1st day of State, on the business of raising, grazing, January and end on the 31st day of De. herding, and pasturing sheep. Reversed and cember. remanded for further proceedings.

The petitioner, between the 1st of May See same case below, 58 C. C. A. 340, 122 and the 25th of June, 1900, engaged in the Fed. 24.

business described in the ordinance, and The facts are stated in the opinion. had in his possession and under his control

Messrs. C. C. Cole, Joseph C. Campbell, 25,000 sheep. He failed to apply for a liand Thomas H. Breeze for petitioner. cense, and became, it is alleged, indebted

Messrs. Frank R. Wehe, C. N. Post, and to the county for the sum of $2,500, and beW. J. Redding for respondent.

came further indebted to the sum of $50 by

way of damages for his neglect. Payment of Mr. Justice McKenna delivered the opin both sums was demanded. ion of the court:

Petitioner demurred to the complaint, This action was brought by respondent which, being overruled, and he having deagainst petitioner in the superior court of clined to answer, judgment was taken the county of Sierra, state of California, and against him. It was affirmed by the cirremoved on his motion to the United States cuit court of appeals. 58 C. C. A. 340, 122 circuit court.

Fed. 24.

The ordinance was passed on the 31st day | the right of the county as vesting at the date of May, 1900, and suit was brought on the of the imposition of the license, and that 25th day of June of that year. On March

On March the liability of petitioner was so far con23, 1901, by an amendment to the Political tractual as to be unaffected by the repeal Code of the state of California (Cal. Stat. of the statute giving power to the county to 1900, 1901, p. 635, § 3366), the authority enact the ordinance. We are unable to asof the board of supervisors to license for sent to this view. It is disputable under revenue was repealed. The repealing provi- the authorities, and it is opposed to the desion is as follows:

cisions of the supreme court of the state of "Boards of supervisors of the counties of California. the state, and the legislative bodies of the The general rule is that powers derived incorporated cities and towns therein, shall, wholly from a statute are extinguished by in the exercise of their police powers, and its repeal. Sutherland, Stat. Const. § 165. for the purpose of regulation, as herein pro- And it follows that no proceedings can be vided, and not otherwise, have power to li- pursued under the repealed statute, though cense all and every kind of business not pro- begun before the repeal, unless such proceedhibited by law, and transacted and carried ings be authorized under a special clause in on within the limits of their respective ju- the repealing act. 9 Bacon, Abr. 226. This risdictions, and all shows, exhibitions, and doctrine is oftenest illustrated in the repeal lawful games carried on therein, to fix the of penal provisions of statutes. It has, rates of license tax upon the same, and to however, been applied by the supreme court provide for the collection of the same by of the state of California to the repeal of suit or otherwise."

the power of counties to enact ordinances It is contended that the ordinance impos- for revenue. ing the license was a revenue measure, not a

Santa Monica v. Guidinger, 137 Cal. 658, police regulation, and that the law under 70 Pac. 732, was an action for the recovery which it was enacted, having been repealed, of $50 for license imposed under an ordithe suit abated. And it is also contended nance of the town “for the license of busithat there was no power to pass the ordi- ness carried on in the town ... for nance. The latter contention is certainly the purpose of regulation and revenue.” The untenable. Ex parte Mirande, 73 Cal. 365, defendant was charged with two license 14 Pac. 888. The former requires some dis- taxes for $25 each for the year following cussion. There are two parts to it,—the the date of the ordinance, that being the character of the ordinance, as being for rev- annual date established by the ordinance, enue or regulation, and the effect of the re-for each person acting as agent or solicitor peal of the ordinance. Under the authority for any laundry without the corporate limof the California cases, it must be regard its of the town.” It was held that the lied as a revenue measure. 72 Cal. 387, 14 cense tax was repealed, and the right of Pac. 100; 73 Cal. 365, 14 Pac. 888; 119 Cal. action therefore extinguished, by § 3366 119, 51 Pac. 32; Santa Monica v. Guidinger, of the Political Code, added thereto. by the 137 Cal. 658, 70 Pac. 732; Sonora v. Cur- act of March 23, 1901. This is the same tin, 137 Cal. 583, 70 Pac. 674.

section relied upon in the case at bar. The In Merced County v. Helm, 102 Cal. 159, court said it was clear that the license tax 36 Pac. 399, the court said, distinguishing in question was imposed for the purpose of between the taxing power and the police raising revenue, and that the case was therepower, that the latter “is exercised in the fore substantially similar to that of Sonora enforcement of a penalty prescribed for the v. Curtin, 137 Cal. 583, 70 Pac. 674. The noncompliance with the law, or for the do-ordinance involved in the latter case coning of some prohibited act.” It was pro- tained penal provisions, but they manifestly vided by the ordinance passed on that the did not determine the decision. The court license should be a "debt,” payable in ad- observed: vance, and to be collected, in case of non- “The right is given by the ordinance to payment, by suit. The absence of regulatory bring a civil suit to recover the amount so provisions has also been held to be an ele- made a license tax. The civil remedy was ment in determining the character of an or- created by the ordinance, and the remedy is dinance. Santa Monica v. Guidinger, 137 repealed by the repeal of the ordinance as Cal. 658, 70 Pac. 732. The ordinance in to revenue. In speaking of the rule as to controversy in the case at bar was, at least, enforcements of rights under repealed statassumed by the circuit court of appeals to be utes, Endlich on the Interpretation of Stata revenue measure. This being its charac- utes, $ 480, says: "The same rule applies to ter, what was the effect of its repeal? It rights and remedies founded solely upon withdraws the power of collecting the tax, statute, and to suits pending to enforce such petitioner contends. The court of appeals remedies. If, at the time the statute is redid not take this view. The court regarded' pealed, the remedy has not been perfected

V.

or the right has not become vested, but still | The result of the contention indicates its remains executory, they are gone.'”

error. It is clear that the decision was not based Judgment reversed and cause remanded alone on the penal character of the ordi- for further proceedings in conformity with nance, but on the broader principle that, the this opinion. power to enact it having been taken away, the power to enforce it was also taken away.

(196 U. S. 562) The cases cited by the court illustrate this. D. E. WHEELER and D. W. Ridenour, Among others, Napa State Hospital v. Flah- Partners, Doing Business under the Firm erty, 134 Cal. 315, 66 Pac. 322, was cited.

Name and Style of Wheeler & Ridenour, In that case the right given by a statute of

Petitioncrs, the state to maintain an action against the father of an insane adult son was held to

COUNTY OF PLUMAS. be taken away by the repeal of the statute conferring the right.

Courts—when Federal courts will follow But if the ordinance passed on in Sonora

decisions of state courts. v. Curtin was penal, the ordinance involved in the case at bar may be so characterized This case is governed by the decision in Flant within the limits of the principle we are

gan v. Sierra County, ante, 314. now discussing, as applied by the supreme

[No. 122.] court of the state of California. What it might be under broader considerations, see submitted January 12, 1905. Decided FebHuntington v. Attrill, 146 U. S. 657, 36 L.

ruary 20, 1905. ed. 1123, 13 Sup. Ct. Rep. 224. That there is a conflict between the su

ON

N WRIT of Certiorari to the United preme court of the state and the circuit States Circuit Court of Appeals for the court of appeals respondent does not deny. Ninth Circuit to review a judgment which Counsel, howerer, say the conflict "does not affirmed a judgment of the Circuit Court arise out of a construction of a statute of for the Northern District of California, enthe state," but (we quote the language of forcing a license fee imposed by the board counsel) “as to the effect of the new statute, of supervisors of Plumas County, in that construed by each court to be a repeal of State, on the business of raising, grazing, a prior statute, upon the rights of the liti- herding, and pasturing sheep. Reversed and gant granted under the prior statute, the remanded for further proceedings. circuit court of appeals first assuming, but See same case below, 58 C. C. A. 683, 122 not deciding, that the ordinance may have Fed. 1022. been a revenue measure, and the supreme The facts are stated in the opinion. court of California deciding that, in its cases, Messrs. Joseph C. Campbell, C. C. the ordinance was a revenue measure. This Cole, and Thomas H. Breeze for petitioners. question did not involve the construction of Messrs. U. S. Webb, C. N. Post, and L. the statute; it was merely the determination N. Peter for respondent. of a question that depended upon the principle of general law, and not upon a positive Mr. Justice McKenna delivered the opin. statute of the state.” The counsel further ion of the court: say: "In such cases the courts of the United This case was submitted with Flanigan v. States are not required to follow the deci- Sierra County, 196 U. S. 553, 25. Sup. Ct. Rep. sion of state courts." The distinction made 314, 49 L. ed. 597. It is also an action for by counsel we cannot adopt. Whether a stat- the recovery of a sum of $2,100, alleged to ute of a state is or is not a revenue measure be due for license tax, and $50 damages. certainly depends upon the construction of The taxes were imposed under an ordinance that statute. Besides, if in any case we of the county of Plumas, substantially simishould lean to an agreement with the state lar to the ordinance passed on in Flanigan court, this is such a case. There is no Fed-v. Sierra County. The action was brought eral right involved. The question is one in the superior court of Plumas county, and strictly of the state law, and the power of removed, upon the petition of the petitioners one of the municipalities of the state under herein, to the circuit court for the northern that law. If we should yield to the conten- district of California. In that court petition of counsel, we should give greater power tioners demurred to the complaint, which, to one of the municipalities of the state being overruled, and they declining to anthan the law of the state, as construed by swer, judgment was taken against them by the supreme court of the state, would give default. It was affirmed by the circuit court it. We should enforce against petitioner a of appeals. tax which the supreme court of the state, The questions are identical with those construing a state law, would not enforce. 'passed on in Flanigan v. Sierra County, and

v.

on the authority of that case the judgment | writers to recover for water damage done is reversed, and cause remanded for further to goods on board the steamship Germanic. proceedings.

107 Fed. 294, 59 C. C. A. 521, 124 Fed. l.

The steamer reached ber pier in New York (196 U. S. 589)

at about noon, Saturday, February 11, 1899. OCEANIC STEAM NAVIGATION COM- She was heavily coated with ice, estimated by

PANY (Limited), Claimant of the Steam- the courts below at not less than 213 tons, ship “Germanic," etc., Petitioner,

and this weight was increased by a heavy

fall of snow after her arrival. She was thir. JOHN W. AITKEN et al. and The Insur-ty-six hours late, and, in order to sail at her ance Company of North America et al.

regular time on the following Wednesday, Certiorari-adoption of concurrent findings hatches at once. At the same time she was

began to discharge cargo from all of her five of lower courts-negligence—standard of taking in coal from coal barges on both

-conduct of eopert-carriers-damage to sides, to that end being breasted off from cargo while unloading-Harter act.

the dock 25 or 30 feet on her port side. At

about 4 p. m. on Monday, February 13, she 1. The concurrent findings of the two lower

courts that water damage to cargo was caused had discharged about 1,370 out of her 1,650 by hurried and imprudent unloading will be tons of cargo, including all but about 155 accepted by the Federal Supreme Court, on tons in the lower hold, the other 125 tons certiorari, unless clearly incorrect.

being on the orlop and steerage decks. She 2. Even an expert may be guilty of negligence then had a starboard list of about 8o. At

In doing what, at the time, his judgment ap- that moment she suddenly rolled over from

proves. 3. Damage to cargo from the sinking of a ship starboard to port and kept a port list of go

after arriving in port, due to hurried and im- or more. As she rolled over, the open cover prudent unloading, which brought the center of an aft coal port, about 33 inches by 22, of gravity of the ship too high for safety, does not result from “faults or errors in navigation was knocked off, leaving the bottom of the or in the management of said vessel," within coal port about a foot above the water line. the meaning of the Harter act of February 13, Thereupon the master, who previously 1893 (27 Stat. at L. 445, chap. 105, U. s. had given no attention to the discharge of

. ) owner of the vessel from liability, but arises cargo and loading of coal, ordered that coalfrom “negligence, fault, or failure in proper ing should be stopped on the port side, but loading, storage, custody, care, or proper de continued on the starboard, that no more livery" of merchandise, under § 1 of that act, cargo should be taken from the lower hold, so as to preclude any stipulation of exemption. and that some sugar in bags should be shift

ed to the starboard side. [No. 128.]

When 10 tons of sugar had been shifted,

at 4.45 p. m., the steamer rolled back to Argued January 13, 16, 1905. Decided Feb. starboard with a list of 8o, as before. Coalruary 20, 1905.

ing was resumed on the port side, but at 6

was stopped on the starboard side. Between N WRIT of Certiorari to the United 6 and 9 p. m. all her side pockets were filled

States Circuit Court of Appeals for the with coal up to the main deck, except one Second Circuit to review two decrees affirm on the starboard, which lacked about 30 ing decrees of the District Court for the tons of being full. Some 20 or 25 tons were Southern District of New York in favor of run into her cross bunkers in the lower part libellants upon libels filed by cargo owners of the ship, which previously were about and underwriters to recover for water dam- half full. About 50 tons of goods were disage done to goods on board a vessel while charged from the orlop and steerage decks, unloading in port. Affirmed.

and about 60 tons of bacon were put on See same case below, 59 C. C. A. 521, 124 board and distributed evenly in the bottom Fed. 1.

of the hold. From 4.45 to 9 the starboard The facts are stated in the opinion. list was increasing constantly. At a little Messrs.

Everett P. Wheeler, and after 9 the steamer suddenly rolled over Wheeler, Cortis, & Haight for petitioner.

again to port, carrying the lower part of Messrs. Wilhelmus Mynderse, Walter the open coal port below the water line. The F. Taylor, Edmund L. Baylies, and Butler, pumps could not control the inflowing water Notman, & Mynderse for respondents. and the ship sank before relief could be got.

The damage to the goods was caused in this Mr. Justice Holmes delivered the opinion way. of the court:

The petitioner argues that the danger This writ of certiorari brings up the rec- could not have been foreseen, and that there ord of two cases which were tried together was no negligence, attributing the loss to an upon libels filed by cargo owners and under- 'unusual gale and special circumstances. But

0 0