is not, owing to the mere fact that the plaintiff is organized under the
national banking law, one arising under the laws of United States,
and under the Judiciary Act of March 3, 1891, the judgment of the
Circuit Court of Appeals is final and, therefore, not subject to review
by this court. Continental National Bank v. Buford, 119.
8. First and fundamental question on writs of error and appeals.
On every writ of error or appeal the first and fundamental question is
that of jurisdiction, first of this court and then of the court from
which the record comes, and such a question arising on the face of
the record cannot be ignored. It must be answered by the court
whether propounded by counsel or not. Continental National Bank
v. Buford 119. Defiance Water Co. v. Defiance, 184.
9. Who may invoke-Personal interest of party essential.
The jurisdiction of this court can only be invoked by a party having a
personal interest in the litigation. Where a public officer of a State
who has no interest in the controversy except as such officer tests the
constitutionality of a state statute purely in the interests of third
parties, by a suit in the state courts and a judgment has been ren-
dered against him by the highest court of the State, a writ of error
from this court to revise such judgment will not lie. The fact that
costs were rendered against him personally in the state court will not
give this court jurisdiction in such case. Smith v. Indiana, 138.
See JURISDICTION, B.
B. OF CIRCUIT COURT OF APPEALS.
Where the jurisdiction of the Circuit Court is invoked on the ground of
diverse citizenship it will not be held to rest also on the ground that
the suit arose under the Constitution of the United States unless it
really and substantially involves a dispute or controversy as to the
effect or construction of the Constitution upon the determination of
which the result depends, and which appears on the record by a
statement in legal and logical form such as good pleading requires;
and where the case is not brought within this rule the decree of the
Circuit Court of Appeals is final. Arbuckle v. Blackburn, 405.
2. Where jurisdiction of the Circuit Court is rested on diverse citizenship
and plaintiff relies wholly on a common-law right, the fact that de-
fendant invokes the Constitution and laws of the United States does
not make the action one arising under the Constitution and laws of
the United States and the judgment of the Circuit Court of Appeals
is final. Spencer v. Duplan Silk Co., 526.
Equity-Power to maintain cause as involving Federal question.
The fact that the council of a city has passed a resolution providing for
payment of a pending bill of a water company claiming a franchise,
with a saving clause against the city, being estopped from denying
the existence of contract right, does not give the Circuit Court juris-
diction to maintain an action in equity to enjoin the city from appro-
priating money in the water fund to the payment of any indebtedness
other than the complainant on the ground that such resolution is a
law impairing the obligation of a contract within the purview of the
Federal Constitution. Defiance Water Co. v. Defiance, 184.
See CONSTITUTIONAL LAW, 3, 9;
Scope-Erie Canal within-Enforcement of lien for repairs to canal boat.
1. Although the Erie Canal is wholly within the State of New York, it
connects navigable waters and is a great highway of commerce be-
tween ports in different States and foreign countries, and is, there-
fore, a navigable water of the United States within the legitimate
scope of the admiralty jurisdiction of the courts of the United States.
2. The enforcement of a lien in rem for repairs made in a port of the State
to which it belongs to a canal boat engaged in traffic on the Erie
Canal and the Hudson River is wholly within the jurisdiction of the
admiralty courts and such lien cannot be enforced by any proceeding
in rem in the courts of the State of New York.
3. The contract for making such repairs is a maritime contract and its
nature as such is not affected by the fact that the repairs were made
in a dry dock or by the fact that the canal boat was engaged in traffic
wholly within the State of New York. (The Belfast, 7 Wall. 624.)
The Robert W. Parsons, 17.
E. OF FEDERAL COURTS GENERALLY.
1. Equity-Not invocable for relief of foreign corporation sued in state court,
where right of removal exists.
Where an insurance company, citizen of one State, has voluntarily accepted
a license from another State, and has been sued in a court of that
State, the fact that the license is subject to be revoked if the company
should remove the action to the Federal courts, furnishes no ground
for appealing to a Federal court to take jurisdiction of a suit in
equity to cancel the policy if otherwise the court would have no ju-
risdiction. The theory that a complainant has no adequate remedy at
law because it would not have the same control over an action brought
against it as defendant as it would have as plaintiff in a suit brought
by it, does not lay the foundation for the jurisdiction of a Federal
court in an action at equity to enjoin the prosecution of the suit
against it. Equitable jurisdiction does not accrue to the Federal
court because it is thought that the law as administered by it is more
favorable to a party seeking its aid than the law as administered by
the courts of a State in which it has been sued. Cable v. Life Insur-
ance Co., 288,
2. Act of March 3, 1881-Trade-marks used in foreign commerce.
It is the use without right of the registered trade-mark of another in
foreign or Indian commerce that gives jurisdiction to the Federal
courts under the act of March 3, 1881. The averments of the bill in
this case are treated as sufficiently asserting the use of the registered
trade-mark and the alleged imitation in foreign commerce to found
jurisdiction in the Circuit Court under the act as well as on diverse
citizenship. Warner v. Searle & Hereth Co., 195.
F. OF STATE COURTS.
See CONSTITUTIONAL LAW, 12;
JURISDICTION, D;
NATIONAL BANKS, 1.
Conclusiveness of decision.
The decision of the Land Department in a contest case is conclusive in the
courts upon all questions of fact. Gertgens v. O'Connor, 237.
LIMITATIONS.
See ADVERSE POSSESSION;
FOREIGN STATE.
California. Title of statute (see Statutes, A 5). Ross v. Aguirre, 60.
District of Columbia. Negligence (see Negligence, 2). Mosheuvel v. Dis-
trict of Columbia, 247.
Illinois. Foreign Corporations (see Corporations). Cable v. United States
Life Insurance Co., 288.
Indiana. Assessment for taxation (see Constitutional Law, 7; Federal
Question, 4). Hibben v. Smith, 310.
Kansas. Eight hour law (see Constitutional Law, 8). Atkin v. Kansas,
207.
Municipal bonds (see Bonds). Hubbert v. Campbellsville
Lumber Co., 70.
Kentucky. Municipal ordinances (see Constitutional Law, 3). Owens-
boro v. Waterworks, Co., 358.
Louisiana. Tax law of 1898 (see Constitutional Law, 13). Board of As-
sessors v. Comptoir National, 388.
Michigan. Taxation of railroads (see Constitutional Law, 4). Wisconsin
& Mich. Ry. Co. v. Powers, 379.
Missouri. Municipal powers (see Constitutional Law, 2). Joplin v. South-
west Missouri Light Co., 150.
New Jersey. Practice in condemnation proceedings (see Evidence, 3).
Sharp v. United States, 341.
Tennessee. Tax laws of 1887 and 1889 (see Constitutional Law, 5). Al-
len v. Pullman Co., 171.
Utah. Limitations (see Adverse Possession). Toltec Ranch Co. v. Cook
and Babcock, 532, 542.
Virginia. Taxation of National Banks (see Equity; Taxation, 2). Peo-
ple's National Bank v. Marye, 272.
1. Contracts-" Dressed beef clause " a violation of Harter Act.
The Harter Act, 27 Stat. 445, expressly prohibits the insertion in bills of
lading of any covenant or agreement lessening, weakening or avoid-
ing the obligation of the owner to use due diligence to make the ves-
sel seaworthy and capable of performing her intended voyage. The
"dressed beef clause" inserted in bills of lading of a vessel engaged
in that trade releasing the vessel from damages even though caused
by defects in the refrigerating apparatus, whether existing at or prior
to the commencement of the voyage is in violation of this provision
of the Harter Act and will not relieve the vessel from such liability in
the absence of proof that the owner has used due diligence at the
commencement of the voyage to make the vessel including the re-
frigerating apparatus reasonably fit for the purposes and uses for
which it is intended and thus seaworthy. The Southwark, 1.
2. Contracts, for repairs to vessels in dry dock-Maritime nature of.
A contract for making repairs to a canal boat engaged in traffic on the
Erie Canal and Hudson River is a maritime contract and its nature as
such is not affected by the fact that the repairs were made in a dry
dock or by the fact that the boat was engaged in traffic wholly within
a State. The Robert W. Parsons, 17.
3. Seaworthiness, burden of proof as to.
The burden of proof as the seaworthiness of the vessel at the time of sail.
ing is on the owner. The sudden breakdown of the refrigerating
apparatus within three hours of sailing raises a presumption of un-
seaworthiness at the time of sailing, independently of the Harter Act.
The Southwark, 1.
4. Seaworthiness-Refrigerating plant included.
Seaworthiness of a vessel engaged in the dressed meat trade relates and
extends to the refrigerating apparatus necessary for the preservation
of the meat during transportation. Ib.
5. Seaworthiness, warranty of.
Before the passage of the Harter Act, 27 Stat. 445, there was, in the ab-
sence of special contract, an absolute warranty, on the part of the ship-
owner, which did not depend upon his knowledge or diligence, that
the vessel was seaworthy at the beginning of the voyage. Ib.
See JURISDICTION, D;
NAVIGABLE WATERS.
Railroad employe entitled to what degree of care-Right to presume use of
due diligence by employer-Assumption of risk by, a question for the
jury.
It is the duty of a railroad company to use due care to provide a reason-
ably safe place and safe appliances for the use of workmen in its em-
ploy. It is obliged to use the same degree of care to provide properly
constructed roadbed, structures and track to be used in the opera-
tion of the road. The servant has a right to assume that the master
has used due diligence in providing suitable appliances for the oper-
ation of his business and does not assume the risk of the employer's
negligence in making such provision. While an employé who con-
tinues without objection in his master's employ with knowledge of a
defective apparatus assumes the hazard incident to the situation, un-
less the evidence plainly shows the assumption of the risk, it is a
question properly left to the jury. Choctaw, Okla. & G. R. R. Co.
v. McDade, 64.
MEASURE OF DAMAGES.
See INSTRUCTIONS TO JURY, 2.
MUNICIPAL CORPORATIONS.
Relation to State-Limitation on power of legislature.
Municipal corporations are, in every essential, only auxiliaries of the
State for the purposes of local government. They may be created,
or, having been created, may be destroyed, or their powers may be
restricted, enlarged or withdrawn at the will of the Legislature, sub-
ject only to the fundamental condition that the collective and indi-
vidual rights of the people of the municipality shall not thereby be
destroyed. Atkin v. Kansas, 207.
CONSTITUTIONAL LAW, 2;
EJECTMENT.
1. Usury-Action against to recover usurious interest-Jurisdiction of state
court-Taking of real estate security by.
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