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Since the above case we have repeatedly held that the mere construction by a state court of a statute of another state, without questioning its validity, does not, with possibly some exceptions, deny to it the full faith and credit demanded by the statute in order to give this court jurisdiction. Glenn v. Garth, 147 U. S. 360, 37 L. ed. 203, 13 Sup. Ct. Rep. 350; Lloyd v. Matthews, 155 U. S. 222, 39 L. ed. 128, 15 Sup. Ct. Rep. 70; Banholzer v. New York L. Ins. Co. 178 U. S. 402, 44 L. ed. 1124, 20 Sup. Ct. Rep. 972; Johnson v. New York L. Ins. Co. 187 U. S. 491, 47 L. ed. 273, 23 Sup. Ct. Rep. 194; Finney v. Guy, 189 U. S. 335, 47 L. ed. 839, 23 Sup. Ct. Rep. 558.

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 necessarily involve a Federal question. The case is practically governed by that of the Chicago & A. R. Co. v. Wiggins Ferry Co. 119 U. S. 615, 30 L. ed. 519, 7 Sup. Ct. Rep. 398. In that case suit was brought in a state court by the ferry company against the railroad to recover damages for not employing the ferry company for the transportation of persons and property across the river, as by its contract it was bound to do. The defendant pleaded that it had no power to make the contract; that the same was in violation of the laws of Illinois, contrary to the public policy thereof, and was void. The statutes were put in evidence, 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 Illi- no 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 v. 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 operation on the contract now in suit, had any different effect in Illinois from what it would have, according to the principles of general law which govern like charters and like contracts in Missouri and elsewhere throughout the country, was, under this rule, a question of fact in the Missouri court, as to which no testimony whatever

was offered."

No proof. having been offered to support the averment that the contract was in violation of the laws of Illinois, the defense relying on the general claim that the contract was illegal, it was held that no Federal question was involved, and the case was dismissed. It was said that it should have appeared on the face of the record that the facts presented for adjudication made it necessary for the court to consider the act of incorporation, in view of the peculiar ju

Rep. 93.

With respect to the Pennsylvania statute, the court held that, although the Pennsyl vania courts had held that a contract made in violation of the Pennsylvania statute was void, yet that the third plea did not contain allegations which showed that the note ried on in Pennsylvania, and not in conwas given in pursuance of business carsummation of a single transaction; and although it was averred that plaintiff did business in that state, it was not averred that the note had any connection with the business carried on in Pennsylvania, or that it was given for goods sold in Pennsylvania. The admitted averments may be true, and yet the note may have been given for an obligation contracted out of the state of Pennsylvania, and consequently, not in violation of its laws. Construing the third plea most strongly against the pleader, the conclusion was that it disclosed no defense in the ac

tion. This was purely a local question, and is not assignable as error here.

Whether, aside from the Federal question discussed, the courts of New Jersey should have sustained this action upon principles of comity between the states, was also a question within the exclusive jurisdiction of the state court. Finney v. Guy, 189 U. S. 335, 47 L. ed. 839, 23 Sup. Ct. Rep. 558. The writ of error must, therefore, be dismissed.

(196 U. S. 553)

P. J. FLANIGAN, Petitioner,

v.

COUNTY OF SIERRA.

The action was brought to recover the amount of license ordained under an ordinance passed May 31, 1900, by the supervisors of the respondent county, under what is known as "the county government act." Cal. Stat. 1897, chap. 277. The act gave power to the boards of supervisors of counties as follows:

"To license for regulation and revenue, all and every kind of business not prohibited by law, and transacted and carried on in such county, and all shows, exhibitions, and lawful games carried on therein, to fix the rates of license tax upon the same, and to provide for the collection of the same, by suit or otherwise." § 25, subd. 25.

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.

1. The validity, under the state laws, of an ordinance adopted by a board of county supervisors, is settled, so far as the Federal courts are concerned, by a decision of the highest court of that state upholding a similar ordi

nance.

2. The decisions of the California supreme court that the repeal by Cal. act March 23,

1901, of the authority conferred on county and municipal legislative bodies to license for revenue abates a suit previously brought to recover a license fee imposed under an ordi

nance which, under the decisions of that court, must be deemed a revenue measure,

will be followed by the Federal courts.

[No. 121.]

Argued January 12, 1905.

ON

ary 20, 1905.

"Each and every person, copartnership, of raising, grazing, herding, or pasturing firm, or corporation engaged in the business sheep in the county of Sierra, state of California, must annually procure a license therefor from the license collector, and must pay therefor the sum of ten (10) cents for each sheep or lamb owned by, in the possession of, or under the control of such person, copartnership, firm, or corporation, and used in such business in said county."

Application for a license is required to be made by affidavit, stating the number of sheep owned by and in possession of the applicant. "The license tax," it is provided, "shall be deemed a debt due to the county," which the district attorney of the county is Decided Febru- directed to sue for; and a judgment is authorized. In case of recovery by the county, $50 damages and costs must be added to the judgment. All money collected for license, less a fee of 10 per cent for collection, "shall be paid over to the county treasurer, as other moneys are, and be placed to the credit of the general funds of the county." Years, within the meaning of the ordinance, shall commence on the 1st day of January and end on the 31st day of De cember.

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Northern District of California, enforcing a license fee imposed by the board of supervisors of Sierra County, in that | State, on the business of raising, grazing, herding, and pasturing sheep. Reversed and 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.

The facts are stated in the opinion. Messrs. C. C. Cole, Joseph C. Campbell, and Thomas H. Breeze for petitioner.

Messrs. Frank R. Wehe, C. N. Post, and W. J. Redding for respondent.

business described in the ordinance, and had in his possession and under his control 25,000 sheep. He failed to apply for a license, and became, it is alleged, indebted to the county for the sum of $2,500, and became 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:

This action was brought by respondent against petitioner in the superior court of the county of Sierra, state of California, and removed on his motion to the United States circuit court.

Petitioner demurred to the complaint, which, being overruled, and he having declined to answer, answer, judgment was taken against him. It was affirmed by the circuit court of appeals. 58 C. C. A. 340, 122 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 25th day of June of that year. On March 23, 1901, by an amendment to the Political Code of the state of California (Cal. Stat. 1900, 1901, p. 635, § 3366), the authority of the board of supervisors to license for revenue was repealed. The repealing provision is as follows:

"Boards of supervisors of the counties of the state, and the legislative bodies of the incorporated cities and towns therein, shall, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise, have power to license all and every kind of business not prohibited by law, and transacted and carried on within the limits of their respective jurisdictions, and all shows, exhibitions, and lawful games carried on therein, to fix the rates of license tax upon the same, and to provide for the collection of the same by suit or otherwise."

It is contended that the ordinance imposing the license was a revenue measure, not a police regulation, and that the law under which it was enacted, having been repealed, the suit abated. And it is also contended that there was no power to pass the ordinance. The latter contention is certainly untenable. Ex parte Mirande, 73 Cal. 365, 14 Pac. 888. The former requires some discussion. There are two parts to it, the character of the ordinance, as being for revenue or regulation, and the effect of the repeal of the ordinance. Under the authority of the California cases, it must be regarded as a revenue measure. 72 Cal. 387, 14 Pac. 100; 73 Cal. 365, 14 Pac. 888; 119 Cal. 119, 51 Pac. 32; Santa Monica v. Guidinger, 137 Cal. 658, 70 Pac. 732; Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674.

In Merced County v. Helm, 102 Cal. 159, 36 Pac. 399, the court said, distinguishing between the taxing power and the police power, that the latter "is exercised in the enforcement of a penalty prescribed for the noncompliance with the law, or for the doing of some prohibited act." It was proIt was provided by the ordinance passed on that the license should be a "debt," payable in advance, and to be collected, in case of nonpayment, by suit. The absence of regulatory provisions has also been held to be an element in determining the character of an ordinance. Santa Monica v. Guidinger, 137 Cal. 658, 70 Pac. 732. The ordinance in controversy in the case at bar was, at least, assumed by the circuit court of appeals to be a revenue measure. This being its character, what was the effect of its repeal? It withdraws the power of collecting the tax, petitioner contends. The court of appeals did not take this view. The court regarded

of the imposition of the license, and that the liability of petitioner was so far contractual as to be unaffected by the repeal of the statute giving power to the county to enact the ordinance. We are unable to assent to this view. It is disputable under the authorities, and it is opposed to the decisions of the supreme court of the state of California.

The general rule is that powers derived wholly from a statute are extinguished by its repeal. Sutherland, Stat. Const. § 165. And it follows that no proceedings can be pursued under the repealed statute, though begun before the repeal, unless such proceedings be authorized under a special clause in the repealing act. 9 Bacon, Abr. 226. This doctrine is oftenest illustrated in the repeal of penal provisions of statutes. It has, however, been applied by the supreme court of the state of California to the repeal of the power of counties to enact ordinances for revenue.

Santa Monica v. Guidinger, 137 Cal. 658, 70 Pac. 732, was an action for the recovery of $50 for license imposed under an ordinance of the town "for the license of business carried on in the town. . . for the purpose of regulation and revenue." The defendant was charged with two license taxes for $25 each for the year following the date of the ordinance, that being the annual date established by the ordinance, "for each person acting as agent or solicitor for any laundry without the corporate limits of the town." its of the town." It was held that the license tax was repealed, and the right of action therefore extinguished, by § 3366 of the Political Code, added thereto by the act of March 23, 1901. This is the same section relied upon in the case at bar. The court said it was clear that the license tax in question was imposed for the purpose of raising revenue, and that the case was therefore substantially similar to that of Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674. The ordinance involved in the latter case contained penal provisions, but they manifestly did not determine the decision. The court observed:

"The right is given by the ordinance to bring a civil suit to recover the amount so made a license tax. The civil remedy was created by the ordinance, and the remedy is repealed by the repeal of the ordinance as to revenue. to revenue. In speaking of the rule as to enforcements of rights under repealed statutes, Endlich on the Interpretation of Statutes, § 480, says: "The same rule applies to rights and remedies founded solely upon statute, and to suits pending to enforce such remedies. If, at the time the statute is repealed, the remedy has not been perfected

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

It is clear that the decision was not based alone on the penal character of the ordinance, but on the broader principle that, the power to enact it having been taken away, the power to enforce it was also taken away. The cases cited by the court illustrate this. Among others, Napa State Hospital v. Flaherty, 134 Cal. 315, 66 Pac. 322, was cited. In that case the right given by a statute of the state to maintain an action against the father of an insane adult son was held to be taken away by the repeal of the statute conferring the right.

error.

Judgment reversed and cause remanded for further proceedings in conformity with this opinion.

(196 U. S. 562)

D. E. WHEELER and D. W. Ridenour,
Partners, Doing Business under the Firm
Name and Style of Wheeler & Ridenour,
Petitioners,

v.

COUNTY OF PLUMAS.

Courts when Federal courts will follow decisions of state courts.

But if the ordinance passed on in Sonora v. Curtin was penal, the ordinance involved in the case at bar may be so characterized This case is governed by the decision in Flani gan v. Sierra County, ante, 314.

within the limits of the principle we are now discussing, as applied by the supreme court of the state of California. What it

[No. 122.]

might be under broader considerations, see Submitted January 12, 1905. Decided FebHuntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224.

ruary 20, 1905.

N WRIT of Certiorari to the United

ON

States Circuit Court of Appeals for the Ninth Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Northern District of California, enforcing a license fee imposed by the board of supervisors of Plumas County, in that State, on the business of raising, grazing,

remanded for further proceedings.

See same case below, 58 C. C. A. 683, 122 Fed. 1022.

The facts are stated in the opinion. Messrs. Joseph C. Campbell, C. C. Cole, and Thomas H. Breeze for petitioners. Messrs. U. S. Webb, C. N. Post, and L. N. Peter for respondent.

Mr. Justice McKenna delivered the opinion of the court:

That there is a conflict between the supreme court of the state and the circuit court of appeals respondent does not deny. Counsel, however, say the conflict "does not arise out of a construction of a statute of the state," but (we quote the language of counsel) "as to the effect of the new statute, construed by each court to be a repeal of a prior statute, upon the rights of the liti-herding, and pasturing sheep. Reversed and gant granted under the prior statute, the circuit court of appeals first assuming, but not deciding, that the ordinance may have been a revenue measure, and the supreme court of California deciding that, in its cases, the ordinance was a revenue measure. This question did not involve the construction of the statute; it was merely the determination of a question that depended upon the principle of general law, and not upon a positive statute of the state." The counsel further say: "In such cases the courts of the United States are not required to follow the decision of state courts." The distinction made by counsel we cannot adopt. Whether a statute of a state is or is not a revenue measure certainly depends upon the construction of that statute. Besides, if in any case we should lean to an agreement with the state court, this is such a case. There is no Federal right involved. The question is one strictly of the state law, and the power of one of the municipalities of the state under that law. If we should yield to the contention of counsel, we should give greater power to one of the municipalities of the state than the law of the state, as construed by the supreme court of the state, would give it. We should enforce against petitioner a tax which the supreme court of the state, construing a state law, would not enforce.

This case was submitted with Flanigan v. Sierra County, 196 U. S. 553, 25 Sup. Ct. Rep. 314, 49 L. ed. 597. It is also an action for the recovery of a sum of $2,100, alleged to be due for license tax, and $50 damages. The taxes were imposed under an ordinance of the county of Plumas, substantially similar to the ordinance passed on in Flanigan v. Sierra County. The action was brought in the superior court of Plumas county, and removed, upon the petition of the petitioners herein, to the circuit court for the northern district of California. In that court petitioners demurred to the complaint, which, being overruled, and they declining to answer, judgment was taken against them by default. It was affirmed by the circuit court of appeals.

The questions are identical with those passed on in Flanigan v. Sierra County, and

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. 1. The steamer reached her pier in New York at about noon, Saturday, February 11, 1899. She was heavily coated with ice, estimated by the courts below at not less than 213 tons, and this weight was increased by a heavy fall of snow after her arrival. She was thir

(196 U. S. 589)

OCEANIC STEAM NAVIGATION COMPANY (Limited), Claimant of the Steamship "Germanic," etc., Petitioner,

v.

JOHN W. AITKEN et al. and The Insurance Company of North America et al. Certiorari-adoption of concurrent findings of lower courts-negligence-standard of conduct of expert-carriers-damage to cargo while unloading-Harter act.

1. The concurrent findings of the two lower courts that water damage to cargo was caused by hurried and imprudent unloading will be accepted by the Federal Supreme Court, on certiorari, unless clearly incorrect.

2.

Even an expert may be guilty of negligence in doing what, at the time, his judgment ap

proves.

3. Damage to cargo from the sinking of a ship after arriving in port, due to hurried and imprudent unloading, which brought the center of gravity of the ship too high for safety, does not result from "faults or errors in navigation or in the management of said vessel," within the meaning of the Harter act of February 13, 1893 (27 Stat. at L. 445, chap. 105, U. S. Comp. Stat. 1901, p. 2946), § 3, exempting the owner of the vessel from liability, but arises from "negligence, fault, or failure in proper loading, storage, custody, care, or proper delivery" of merchandise, under § 1 of that act, so as to preclude any stipulation of exemption.

[No. 128.]

ty-six hours late, and, in order to sail at her regular time on the following Wednesday, began to discharge cargo from all of her five hatches at once. At the same time she was king in coal from coal barges on both sides, to that end being breasted off from the dock 25 or 30 feet on her port side. At about 4 p. m. on Monday, February 13, she had discharged about 1,370 out of her 1,650 tons of cargo, including all but about 155 tons in the lower hold, the other 125 tons being on the orlop and steerage decks. She then had a starboard list of about 8°. At that moment she suddenly rolled over from starboard to port and kept a port list of 9° or more. As she rolled over, the open cover of an aft coal port, about 33 inches by 22, was knocked off, leaving the bottom of the coal port about a foot above the water line. Thereupon the master, who previously had given no attention to the discharge of cargo and loading of coal, ordered that coaling should be stopped on the port side, but continued on the starboard, that no more cargo should be taken from the lower hold, and that some sugar in bags should be shifted to the starboard side.

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 8°, as before. Coal

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ruary 20, 1905.

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Second Circuit to review two decrees affirming decrees of the District Court for the Southern District of New York in favor of libellants upon libels filed by cargo owners and underwriters to recover for water damage done to goods on board a vessel while unloading in port. Affirmed.

See same case below, 59 C. C. A. 521, 124 Fed. 1.

The facts are stated in the opinion. Messrs. Everett P. Wheeler, and Wheeler, Cortis, & Haight for petitioner.

Messrs. Wilhelmus Mynderse, Walter F. Taylor, Edmund L. Baylies, and Butler, Notman, & Mynderse for respondents.

ing was resumed on the port side, but at 6 was stopped on the starboard side. Between 6 and 9 p. m. all her side pockets were filled with coal up to the main deck, except one on the starboard, which lacked about 30 tons of being full. Some 20 or 25 tons were run into her cross bunkers in the lower part of the ship, which previously were about half full. About 50 tons of goods were discharged from the orlop and steerage decks, and about 60 tons of bacon were put on board and distributed evenly in the bottom of the hold. From 4.45 to 9 the starboard list was increasing constantly. At a little after 9 the steamer suddenly rolled over again to port, carrying the lower part of the open coal port below the water line. The pumps could not control the inflowing water 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:

This writ of certiorari brings up the record of two cases which were tried together upon libels filed by cargo owners and under

The petitioner argues that the danger could not have been foreseen, and that there was no negligence, attributing the loss to an unusual gale and special circumstances. But

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