allowance of an appeal, the appeal ceases to have any operation or
effect, and the case stands as if it had never been allowed. Small v.
Northern Pacific Railroad, 514.
See DISTRICT OF COLUMBIA;
JURISDICTION, D, 3, 4.
An officer in the army or navy of the United States does not hold his office
by contract, but at the will of the sovereign power. Crenshaw v.
United States, 98.
See CONSTITUTIONAL LAW, 10, 11.
ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
See PARTNERSHIP, 2, 3.
BURNT RECORDS ACT.
See EQUITY, 5.
CASES AFFIRMED OR APPROVED.
1. Liverpool and London Insurance Co. v. Gunther, 116 U. S. 113, affirmed.
Gunther v. Liverpool and London Ins. Co., 110.
2. Pennsylvania Railroad v. Locomotive Truck Co., 110 U. S. 490, again
affirmed. Howe Machine Co. v. National Needle Co., 388.
3. The case of Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota,
134 U. S. 418, affirmed, on substantially the same state of facts.
apolis Eastern Railway Co. v. Minnesota, 467.
4. Gibson v. Shufeldt, 122 U. S. 27. Wheeler v. Cloyd, 537.
5. Austin v. Citizens' Bank, 30 La. Ann. 689, approved and applied to this
case. Mendenhall v. Hall, 559.
6. McCulloch v. Maryland, 4 Wheat. 316, 436; Weston v. City Council of
Charleston, 2 Pet. 449; Henderson v. Mayor of New York, 92 U. S.
259; and Brown v. Maryland, 12 Wheat. 419, in no wise conflict with
the points decided in this case; and the court fully assents to those
cases, and has no doubt of their correctness in any particular. Home
Ins. Co. v. New York, 594.
1. Van Ness v. Van Ness, 6 How. 62; and Brown v. Wiley, 4 Wall. 165,
distinguished. Ormsby v. Webbh, 47.
2. Robertson v. Bradbury, 132 U. S. 491, distinguished from this case. Lit-
tle v.
Bowers, 547.
1. Hart v. Sansom, 110 U. S. 151, explained. Arndt v. Griggs, 316.
2. The case of Bate Refrigerating Co. v. Hammond, 129 U. S. 151, explained.
Pohl v. Anchor Brewing Co., 381.
CASES QUESTIONED OR OVERRULED.
Chisholm v. Georgia, 2 Dall. 419, questioned.
CERTIFICATE OF DIVISION IN OPINION.
The court again declines to answer a certified question which contains no
clear and distinct proposition of law. United States v. Lacher, 624.
CIRCUIT COURTS OF THE UNITED STATES.
See AMENDMENT OF RECORD;
COMMISSIONERS OF CIRCUIT COURTS;
JURISDICTION, B.
COMMISSIONERS OF CIRCUIT COURTS.
1. The decision of a commissioner of a Circuit Court of the United States,
upon a motion for bail and the sufficiency thereof, and his decision
upon a motion for a continuance of the hearing of a criminal charge,
are judicial acts in the "hearing and deciding on criminal charges "
within the meaning of Rev. Stat. § 847, providing for a per diem com-
pensation in such cases. United States v. Jones, 483.
2. The approval of a commissioner's account by a Circuit Court of the
United States is prima facie evidence of its correctness, and, in the
absence of clear and unequivocal proof of mistake on the part of the
court, should be conclusive. Ib.
1. A State cannot, without its consent, be sued in a Circuit Court of the
United States by one of its own citizens, upon a suggestion that the
case is one that arises under the Constitution and laws of the United
States. Hans v. Louisiana, 1.
2. While a State cannot be compelled by suit to perform its contracts,
any attempt on its part to violate property or rights acquired under
its contracts may be judicially resisted; and any law impairing the
obligation of contracts under which such property or rights are held
is void, and powerless to affect their enjoyment. Ib.
3. This suit was commenced against the State of North Carolina and
against the auditor of that State, as defendants, to compel the levying
of a special tax for the benefit of certain holders of its bonds; Held,
(1) That the suit against the auditor was, under the circumstances,
virtually a suit against the State; (2) That on the authority of Hans
v. Louisiana, 134 U. S. 1, the suit could not be maintained against the
State. North Carolina v. Temple, 22.
4. The first eight of the Articles of Amendment to the Constitution of the
United States have reference only to powers exercised by the United
States, and not to those exercised by the States. Eilenbecker v.
Plymouth County, 31.
5. The provision in Article III of the Constitution of the United States
respecting the trial of crimes by jury relates to the judicial power of
the United States. Ib.
6. Article VI of the Amendments to the Constitution of the United States
respecting a speedy and public trial by jury; Articles V and VI re-
specting the right of persons accused of crime to be confronted with
the witnesses; Article VIII respecting excessive fines, and cruel and un-
usual punishments; and Article XIV respecting the abridgment of privi-
leges, the deprivation of liberty or property without due process of law,
and the denial of the equal protection of the laws, are not infringed
by the statutes of Iowa authorizing its courts, when a person violates
an injunction restraining him from selling intoxicating liquors, to
punish him as for contempt by fine or imprisonment or both. Ib.
7. Proceedings according to the common law for contempt of court are not
subject to the right of trial by jury, and are "due process of law," within
the meaning of the Fourteenth Amendment to the Constitution. Ib.
8. All the powers of courts whether at common law or in chancery may be
called into play by the legislature of a State, for the purpose of sup-
pressing the manufacture and sale of intoxicating liquors when they are
prohibited by law, and to abate a nuisance declared by law to be such;
and the Constitution of the United States interposes no hindrance. lb.
9. A District Court of a county in Iowa is empowered to enjoin and re-
strain a person from selling or keeping for sale intoxicating liquors,
including ale, wine, and beer, in the county, and disobedience of the
order subjects the guilty party to proceedings for contempt and pun-
ishment thereunder. Ib.
10. The provision in the naval appropriation act of August 5, 1882, c. 391,
§ 1, which directs, in certain cases, the honorable discharge of naval
cadets from the navy, with one year's sea pay, is not in conflict with
the contract clause of the Constitution of the United States. Crenshaw
v. United States, 99.
11. It is not within the power of a legislature to deprive its successor of
the
power of repealing an act creating a public office. Ib.
12. The auditor of the State of Louisiana was sued in his official capacity,
in order to compel him, in that capacity, to act to raise a tax, author-
ized by a former law, but contrary to subsequent legislation, and to
the present laws of the State; Held, it was a suit against the State.
New York Guaranty Co. v. Steele, 230.
13. The Fourteenth Amendment was not intended to compel the States to
adopt an iron rule of equal taxation. Bell Gap Railroad Co. v. Penn-
sylvania, 232.
14. The act of the legislature of Minnesota, approved March 7, 1887,
General Laws of 1887, c. 10, establishing a railroad and warehouse
commission, being interpreted by the Supreme Court of that State as
providing that the rates of charges for the transportation of property,
recommended and published by the commission, shall be final and con-
clusive as to what are equal and reasonable charges, and that there can
be no judicial inquiry as to the reasonableness of such rates, and a rail-
road company, in answer to an application for a mandamus, contending
that such rates, in regard to it, are unreasonable, and not being allowed
by the state court to put in testimony on the question of the reasonable-
ness of such rates; Held, that the act is in conflict with the Constitution
of the United States, as depriving the company of its property without
due process of law, and depriving it of the equal protection of the
laws. Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota, 418.
15. The State had made no irrepealable contract with the company that it
should have the right for all future time to prescribe its rates of toll,
free from all control by the legislature of the State. Ib.
16. The statutory provisions existing in the present case as to the fixing by
the railroad company of reasonable charges for the transportation of
property, did not constitute such a contract with it, as to deprive the
legislature of its power to regulate those charges. Minneapolis Eastern
Railway Co. v. Minnesota, 467.
17. A tax which is imposed by a state statute upon "the corporate fran-
chise or business" of all corporations incorporated under any law of
the State or of any other State or country, and doing business within
the State, and which is measured by the extent of the dividends of the
corporation in the current year, is a tax upon the right or privilege
to be a corporation and to do business within the State in a corporate
capacity, and is not a tax upon the privilege or franchise which, when
incorporated, the company may exercise; and, being thus construed,
its imposition upon the dividends of the company does not violate the
provisions of the statute exempting bonds of the United States from
taxation, 12 Stat. 346, c. 33, § 2, although a portion of the dividends
may be derived from interest on capital invested in such bonds.
Home Insurance Company v. New York, 594.
18. Such a tax is not in conflict with the last clause of the first section of
the Fourteenth Amendment to the Constitution of the United States
declaring that no State shall deprive any person within its jurisdiction
of the equal protection of the laws. lb.
19. A judgment by a state court of South Carolina that the will of a
resident in North Carolina, who was the donee of a power to appoint
by will to receive the fee of real estate in South Carolina, after the
expiration of a life estate, was properly admitted to probate in North
Carolina, was executed according to the laws of that State, and was
properly admitted to probate in South Carolina by proof of an
exemplified copy, though not executed according to the laws of that
State, but that the donor of the power intended that the appointment
should be made by a will valid under the laws of South Carolina,
which this will was not, does not refuse to give full faith and credit
to the judgment of the court of North Carolina, admitting the will to
probate. Blount v. Walker, 607.
20. The statute of Tennessee which provides that "not more than two new
trials shall be granted to any party in any action at law; or upon the
trial by a jury of an issue of fact in equity," Code of 1884, 735, § 3835,
having been construed by the courts of that State to refer to a state
of case where in the opinion of the court, the verdict should have
been otherwise than as rendered, because of the insufficiency of the
evidence to sustain it- and not to a case where there is no evidence
at all to sustain it is not in conflict with the Fourteenth Amendment
to the Constitution; while the Fifth Amendment has no application
to it. Louisville and Nashville Railroad Co. v. Woodson, 614.
JURISDICTION, C, 2; D, 1, 2;
EX POST FACTO LAW: TAX AND TAXATION, 1, 2, 3.
See CONSTITUTIONAL LAW, 7.
1. Time may be made of the essence of a contract, relating to the pur-
chase of realty, by the express stipulations of the parties; or it may
arise by implication from the very nature of the property, or the
avowed objects of the seller or the purchaser; and unless its provisions
contravene public policy, the court should give effect to them accord-
ing to the real intention of the parties. Cheney v. Libby, 68.
2. But even when time is made material by express stipulation, the fail-
ure of one of the parties to perform a condition within the particular
time limited will not in every case defeat his right to specific perform-
ance, if the condition be subsequently performed, without unreason-
able delay, and no circumstances have intervened that would render it
unjust or inequitable to give such relief. The discretion which the
court has to decree specific performance may be controlled by the con-
duct of the party who refuses to perform the contract because of the
failure of the other party to strictly comply with its conditions. Ib.
3. When a contract for the purchase of land provides that it shall be for-
feited if the vendee fails to pay any instalment of the purchase price
at the time limited, the failure of the latter to make a tender of pay-
ment, in lawful money, of a particular instalment on the very day it
falls due, will not deprive him of the right to have specific perform-
ance, if such failure was superinduced by the conduct of the vendor,
and if the vendee, without unreasonable delay, tenders payment, in law-
ful money, after the time so limited. Ib.
4. A provision in the contract forbidding its modification or change ex-
cept by entry thereon in writing signed by both parties, coupled with
a provision that no court should relieve the purchaser from a failure
to comply strictly and literally with its conditions, has no application
when the apparent cause of the failure to perform such conditions was
the conduct of the vendor. Ib.
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