⚫430

other commodities, but against mere options particular kind of business not inherently to sell or buy at a future time without any harmful or immoral. It must be assumed settlement between the parties upon the that the legislature was of opinion that an basis of differences, and therefore involving effectual mode to suppress gambling grain no element of gambling. The argument contracts was to declare illegal all options then is, that the statute directly forbids the to sell or buy at a future time. The court citizen from pursuing a calling which, in it is unable to say that the means employed self, involves no element of immorality, and were not appropriate to the end sought to therefore by such prohibition it invades his be attained and which it was competent for liberty as guaranteed by the supreme law the state to accomplish. of the land. Does this conclusion follow The supreme court of the state in this from the premise stated? Is it true that case said: "The practice of gambling on the legislature is without power to forbid the market prices of grain and other comor suppress a particular kind of business, modities is universally recognized as a perwhere such business, properly and honestly nicious evil, and that the suppression of conducted, may not, in itself, be immoral? such evil is within the proper exercise of We think not. A calling may not in itself the police power has been too frequently debe immoral, and yet the tendency of what clared to be open to discussion. The evil is generally or ordinarily or often done in does not consist in contracts for the purpursuing that calling may be towards that chase or sale of grain to be delivered in the which is admittedly immoral or pernicious. future, in which the delivery and acceptance If, looking at all the circumstances that at- of the grain so contracted for is bona fide tend, or which may ordinarily attend, the contemplated and intended by the parties, pursuit of a particular calling, the state but in contracts by which the parties intend thinks that certain admitted evils cannot be to secure, not the article contracted for, but successfully reached unless that calling be the right or privilege of receiving the difactually prohibited, the courts cannot interference between the contract price and the fere, unless, looking through mere forms market price of the article. The object to and at the substance of the matter, they be accomplished by the legislation under can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law. Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Minnesota v. Barber, 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862; Brimmer v. Rebman, 138 U. S. 78, 34 L. ed. 862, 3 Inters. Com. Rep. 485, 11 Sup. Ct. Rep. 213; Voight v. Wright, 141 U. S. 62, 35 L. ed. 638, 11 Sup. Ct. Rep. 855.

consideration is the suppression of contracts of the latter character, which are in truth mere wagers as to the future market price of the article or commodity which is the subject-matter of the wager. Clearly a contract which gives to one of the contracting parties a mere privilege to buy corn, but does not bind him to accept and pay for it, is wanting in the elements of good faith to be found in a contract of purchase and sale where both parties are bound, and offers a more convenient cover and disguise for mere wagers on the price of grain than contracts We cannot say from any facts judicially which create the relation of vendor and venknown to the court, or from the evidence in dee. Such contracts are in the nature of this case, that the prohibition of options to wagers, that contracted for being the mere sell grain at a future time has, in itself, no privilege to buy the grain should its mar reasonable relation to the suppression of ket value prove to be greater than the price gambling grain contracts in respect of which fixed in the contract for such privilege. The the parties contemplate only a settlement on prohibition of the right to enter into conthe basis of differences in the contract and tracts which do not contemplate the creation market prices. Perhaps the legislature of an obligation on the part of one of the thought that dealings in options to sell or contracting parties to accept and pay for buy at a future time, although not always the commodity which is the purported subor necessarily gambling, may have the ef-ject-matter of the contract, but only to infect to keep out of the market, while the vest him with the option or privilege to deoptions lasted, the property which is the mand, the other contracting party shall desubject of the options, and thus assist pur-liver him the grain if he desires to purchase chasers to establish, for a time, what are it, tends materially to the suppression of known as "corners," whereby the ordinary the very evil of gambling in grain options and regular sales or exchanges of such prop- which it was the legislative intent to extirerty, based upon existing prices, may be in-pate, for the reason such evil injuriously afterfered with and persons who have in fact no grain, and do not care to handle any, enabled to practically control prices. Or, the legislature may have thought that options to sell or buy at a future time were, in their essence, mere speculations in prices and tended to foster a spirit of gambling. In all this the legislature of the state may have been mistaken. If so, the mistake was not such as to justify the conclusion that the statute was a mere cover to destroy a

fected the welfare and safety of the public. The denial of the right to make such contracts tended directly to advance the end the legislature had in view, and was not an inappropriate measure of attack on the evil intended to be eradicated. So far as that point is concerned, the act must be deemed a valid law of the land, and as such must be enforced, though it infringe in a degree upon the property rights of citizens. To that extent private right must be deemed secon

dary to the public good." 186 Ill. 51, 50 L. R. A. 764, 57 N. E. 800.

We are unwilling to declare these views of the state court to be wholly without foundation, and therefore cannot adjudge that the legislature of Illinois transcended the limits of constitutional authority when enacting the statute in question. In reaching this conclusion we have recognized the principle, long established and vital in our constitutional system, that the courts may not strike down an act of legislation as unconstitutional, unless it be plainly and palpably so.

The statute here involved may be unwise. But an unwise enactment is not necessarily, for that reason, invalid. It may be, as suggested by counsel, that the steady, vigorous enforcement of this statute will materially interfere with the handling or moving of vast amounts of grain in the West which are disposed of by contracts or arrangements made in the Board of Trade in Chicago. But those are suggestions for the consideration of the Illinois legislature. The courts have nothing to do with the mere policy of legislation.

|

*Mr. Justice Harlan delivered the opinion of the court:

This suit presents a contest between the United States and the appellee corporations as to the right asserted by the latter to construct over and near the Rio Grande a certain dam and reservoir for the purpose of appropriating the waters of that river in their private business.

By the 7th article of the treaty of Febru ary 2d, 1848, between the United States and the Republic of Mexico, it is provided that "the river Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico, being, agreeably to the 5th article, divided in the middle between the two Republics, the navigation of

the Gila and of the Bravo below said boun

The judgment of the Supreme Court of Il-dary shall be free and common to the veslinois is affirmed.

Mr. Justice Brewer and Mr.

Peckham dissented.

(184 U. S. 416)

v.

UNITED STATES, Appt., RIO GRANDE DAM & IRRIGATION

PANY et al.

Appeal in equity-discretionary ordersreversal for absence of material evidence.

1.

2.

Error in the denial of a motion for the continuance of a cause and of an application for a rehearing does not constitute a ground

for the reversal of the final decree.

sels and citizens of both countries; and

Justice neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation. . . The stipulations contained in the present article shall not impair the territoCOM-rial rights of either Republic within its established limits." 9 Stat. at L. 928. And by the 4th article of the treaty of December 30th, 1853, between the same countries, it was further provided that "the several provisions, stipulations, and restrictions contained in the 7th article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo del Norte, below the initial of the said boundary provided in the 1st article of this treaty, that is to say, below the intersection of the 31° 47' 30" parallel of latitude, with the boundary lines established by the late treaty dividing said river from its mouth upwards, according to the 5th article of the treaty of Guadalupe." 10 Stat. at L. 1034. Again, by a convention between the United States and Mexico, concluded December 26th, 1899, provision was made for an international boundary commission, empow ered, upon application by the local authori ties, to inquire whether any works were being constructed on the Rio Grande which were forbidden by treaty stipulations. 20 Stat. at L. 1512.

A decree dismissing a suit by the United States, under the act of Congress of September 19, 1890, chap. 907 (26 Stat. at L. 426, 454, § 10), to enjoin the creation of an obstruction of a navigable stream, will be reversed in the exercise of the power, on an appeal in equity, to render such a decree as under all the circumstances may seem proper, and the cause will be remanded for further hearing, where material evidence is absent from the record because of the action of the trial court in not giving sufficient time to the government to prepare its case for the inquiry directed on a prior appeal to be made on the question whether the navigability of the stream would be substantially diminished by the creation of such obstruction.

[No. 239.]

Just before the last-named convention, Congress, by the act of September 19th,* Argued November 14, 15, 1901. Decided 1890, chap. 907, provided: "That the cre

March 3, 1902.

APPEAL from the Supreme Court of the
Territory of New Mexico to review a de-
cree which affirmed a decree of the District
Court for the Third Judicial District of
New Mexico dismissing a suit by the United

ation of any obstruction not affirmatively authorized by law, to the navigable capacity

of any waters, in respect of which the Unit ed States has jurisdiction, is hereby prohibited. The continuance of any such obstruc tion, except bridges, piers, docks, and wharves, and similar structures erected for

⚫419

business purposes, whether heretofore or hereafter created, shall constitute an offense, and each week's continuance of any such obstruction shall be deemed a separate offense. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment (in the case of a natural person) | not exceeding one year, or by both such punishments, in the discretion of the court; the creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any circuit court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney General of the United States." 26 Stat. at L. 426, 454, § 10.

tary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States, is a construction which cannot be tolerated. It ignores the spirit of the legislation and carries the statute to the verge of the letter and far beyond what under the circumstances of the case must be held to have been the intent of Congress." United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 708, 710, 43 L. ed. 1136, 1143, 1144, 19 Sup. Ct. Rep. 770, 777.

These treaties with the above and other acts of Congress being in force, the present suit was brought, May 24th, 1897, in the district court for the third judicial district of New Mexico-the plaintiff being the United States of America, and the original defendant being the Rio Grande Dam & Irrigation Company, a corporation of that territory. By an amended bill, the Rio Grande Irrigation & Land Company-a British corporation doing business in the territory of New Mexico was also made defendant. The latter corporation, it is alleged, was organized as an adjunct and agent of the New Mexico corporation.

The bill and amended bill show that the object of the suit was to obtain a decree en joining the defendants from commencing or attempting to construct or build a certain dam and reservoir or any other dam, breakwater, reservoir or other structure, or obstruction of any character whatsoever, "across the Rio Grande or the waters there of, or from maintaining such dam or obstruction in the territory of New Mexico, and especially at Elephant Butte in said territory, or any other point on. said river in said territory of New Mexico, as shall affect the navigable capacity of said Rio Grande at any point throughout its course, whether in the territory of New Mexico or elsewhere." The court of original jurisdiction said it was a fact of which it could take judicial notice, and it adjudged, that the Rio Grande was not navigable within the territory of New Mexico, and it dissolved the injunction theretofore granted against the defendants, and dismissed the suit. Upon appeal to the supreme court of the territory that decree was aflirmed, August 24th, 1890.

The case was then brought here by appeal. This court in its opinion rendered May 22d, 1899, among other things said that to assert that Congress intended by its legislation "to confer upon any state the right to appropriate all the waters of the tribu

Referring especially to the above act of September 19th, 1890, the court also said: "It is urged that the true construction of this act limits its applicability to obstruc tions in the navigable portion of a navigable stream, and that as it appears that although the Rio Grande may be navigable for a certain distance above its mouth, it is not navi. gable in the territory of New Mexico, this statute has no applicability. The language is general, and must be given full scope. It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States, which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of that prohibition. Evidently Congress, perceiving that the time had come when the growing interests of commerce required that the naviga ble waters of the United States should be subjected to the direct control of the National government, and that nothing should be done by any state tending to destroy that navigability without the explicit assent of the National government, enacted the statute in question. And it would be to improperly ignore the scope of this language to limit it to the acts done within the very limits of navigation of a navigable stream.

The question always is one of fact, whether such appropriation substantially interferes with the navigable capacity with. in the limits where navigation is a recog. nized fact." 174 U. S. 690, 708, 43 L. ed. 1136, 1143, 19 Sup. Ct. Rep. 770, 777.

The decree of the supreme court of the territory was reversed by this court, and the cause was remanded "with instructions to set aside the decree of dismissal, and to order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and in appropriating the waters of the Rio Grande will substantially diminish the navigability of that stream within the limits of present navigability, and if so, to enter a decree restraining those acts to the extent that they will so dimin ish."

The mandate of this court, based upon its final order of May 22d, 1899, was issued June 24th, 1899. On the 14th of July, 1899, the supreme court of the territory remanded the cause to the court of original jurisdiction to be there proceeded with in accordance with our mandate.

On the 5th day of August, 1899, the Dis

⚫421

trict court heard, at chambers, an applica- The motion for rehearing was denied, and tion of the defendants, based on notice to by a final order, entered January 9th, 1900, the United States, to set the cause for final the bill was dismissed. From that order hearing upon evidence taken under the man- the present appeal was prosecuted. date of the supreme court of the territory. That application was sustained, and the cause was set for final hearing on the 1st day of November, 1899.

⚫424

stances may be proper. Ridings v. John-|ord, great wrong may be done to the United son, 128 U. S. 212, 218, 32 L. ed. 401, 403, States, as well as to all interested in pre9 Sup. Ct. Rep. 72. If it appears that in-serving the navigability of the Rio Grande. justice may be done by proceeding to a final As the record does not show that the repredecree upon the record as it is presented to sentatives of the government were chargeaus, we have the power to forbear a determi-ble with want of diligence in their preparanation of the merits and remand the cause tion of the cause, we think that the decree for further preparation. should be reversed and the cause remanded, with liberty to both parties to take further evidence.

In Estho v. Lear, 7 Pet. 130, 131, 8 L. ed. 632, 633, involving the validity of a certain paper purporting to be and which had been We are the better satisfied with this disrecorded as the last will and testament of position of the case because the questions Kosciuszko, the bill charged that the paper presented may involve rights secured by was not a will. The bill made no reference treaties concluded between this country and to any other will. The answer insisted that the Republic of Mexico. As the latter counthe will referred to in the bill was a valid try cannot be indifferent to the "result of instrument and operative. Chief Justice this litigation, and is not a party to the Marshall, speaking for the court, said: record, the court ought not to determine the "Before the court can decide the intricate important question before us in the absence questions which grow out of this will, we of material evidence, which we are not at think it necessary to possess some informa- liberty upon this record to doubt would be tion which the record does not give." It in the record but for the somewhat precipappearing that the testator had made an-itate action of the trial court. other will, which was not in the record, the court said that "since we are informed of its existence, it would be desirable to see it. We do not think the case properly prepared for decision; and therefore direct that the decree be reversed and the cause remanded, with liberty to the plaintiff to amend his bill." In United States v. Galbraith, 22 How. 89, 96, 16 L. ed. 321, 323, the question was as to the validity of a claim for five leagues of land. The Board of Land Commissioners decided against the United States, upon the ground that there was an absence of any rebutting testimony that would overcome the prima facie case made by the claimant. Speaking by Mr. Justice Nelson, this court said that it was "of opinion that, in consideration of the doubtful THOMAS CONNOLLY and William E.

Without considering the merits the decree must be reversed, and the cause remanded to the Supreme Court of New Mexico, with directions to reverse the decree of the District Court and to remand the case with direction to grant leave to both sides to adduce further evidence.

It is so ordered.

Mr. Justice Gray and Mr. Justice MoKenna did not sit in this case nor partici pate in its decision.

Mr. Justice Brewer and Mr. Justice Shiras dissented.

(184 U. S. 540)

Dee, Plffs. in Err.,

บ.

UNION SEWER PIPE COMPANY.

Appeal-contracts—illegal

character of the claim, and entire want of
any merits upon the testimony, the decree
of the court below should be reversed, and
the case remitted for further evidence and
examination." In Illinois C. R. Co. v. Illi-
nois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup.
Ct. Rep. 110, one of the questions arising
in the pleadings was whether the Illinois
Central Railroad Company was entitled to 1.
maintain certain docks, piers, and wharves
on the lake front at Chicago. The circuit
court decided that question in favor of the
railroad company. But this court was of
opinion that the evidence in the record was
not adequate for the determination of that
question, and upon its own motion reversed
the decree and remanded the cause with di-
rections for further investigation, so as to
enable the court to determine whether the
structures in question extended into the lake
beyond the point of practical navigability,
having reference to the manner in which
commerce was conducted on the lake.

2.

3.

In the present case it is quite clear that the record does not contain evidence of a material character, and that the absence of such evidence is due to the action of the trial court in not giving sufficient time to the government to prepare its case. We cannot resist the conviction that if we pro- 4. ceed to a final decree upon the present rec

anti-trust laws-set-off
law-invalid portion of statute.

The jurisdiction of the Supreme Court of the United States on writ of error to a circuit court, under the circuit court of appeals act, when the constitutionality of a state statute is in question, extends to all cases in which such a question is decided against the claim of either party, and therefore includes a case in which the writ of error is taken by a defendant who set up in defense of the action a statute which the court held unconstitutional.

The Illegality, at common law, of a combl nation formed by corporations and persons In restraint of trade, does not preclude it from recovering the purchase price of goods sold in the course of business.

A violation of the Sherman anti-trust act of July 2, 1890 (26 Stat. at L. 209, chap. 647), by the formation of a combination in restraint of trade, by which a penalty is incurred under the statute, does not preclude the company thus illegally formed from recov. ering on collateral contracts for the purchase price of goods.

A recovery of the treble damages authorized by the Sherman anti-trust act of July 2, 1890,