may well make distinctions depend upon the degrees of evil without being arbitrary or unreasonable. Ozan Lumber Co. v. Union County National Bank et al., ante, page 251.

2. The argument which attacks the discrimination between mixed paints is an elaboration of paragraph 17 of the bill. It is able, circumstantial and variously illustrated. It has been given careful consideration, but it would extend this opinion too much to answer it in detail or review its specifications. It is ultimately grounded on the contention that the pigments enumerated in the statute, and hence denominated statutory pigments, are not more efficient-maybe not as efficient to the manufacture of paint, either in themselves or as depending upon the particular use to which paint may be put, the proportion of ingredients varying with such use, or even with the fancy or taste of the user, or the atmospheric conditions to which paint may be exposed, as the pigments mentioned in sub-paragraphs "A" and "B" of paragraph 17, and hence called class "A" and class "B" pigments. And, it is contended, that there is "neither a standard of purity nor a general or widely accepted standard of purity," and that the statute, by making a standard of some ingredients and excluding others "useful, efficient, harmless and in some cases most essential," is an arbitrary discrimination and an improper exercise of the police power of the State, not justified by the comparative newness of the excluded ingredients, or because they are not used by unprogressive manufacturers, or used by unscrupulous ones in excessive proportions to cheapen their products. And this, it is urged, is all that is established against such ingredients. Besides, it is further urged, the charge that they are used to cheapen paint is true of one of the statutory ingredients.

The claims for class "A" and "B" pigments are controverted, and if they are sustained at all are sustained upon the balancing of and the judgment between the testimony of experts, certain publications and exhibits. But a problem of a different kind was presented to the legislature of North Dakota. It was not what scientific men might find out by chemical and laboratory

tests, or progressive men might discover by practical experiments, but what the people of the State could find out or be justified in accepting as established. It was the experience of the people, not the acts of some progressive manufacturers, which directed the legislation, and it was to protect the people, when following the opinions formed from that experience, from deception, that the statute was enacted. It may be that the purpose could have been accomplished better in some other way. It may be that it would have been more entirely adequate, let us say, even more entirely just, to have required that all paint should be labelled, the statute nevertheless cannot be brought under the condemnation of the Fourteenth Amendment. Legislatures, as we have seen, have the constitutional power to make unwise classifications. But we may be going too far in concession to the argument of appellants. The legislature of North Dakota may have met the evils which exist as best it could, and there is a strong presumption that it did. At any rate, a fair question was presented, whether to take as a standard the ingredients that years of use had demonstrated as excellent or make regulation universal. We think it would be limiting the power of the State too much to say that a judgment exercised under such circumstances must be condemned as denying the equal protection of the laws or that the liberty assured by the Constitution of the United States in the Fourteenth Amendment gives a right to either progressive or conservative tendencies in legislation.

Appellants not only attack the standard adopted by the statute, but attack the use made of it. They assert that the standard is of "purely negative character," in that it fails to "require all allowable ingredients essential for efficiency to be used and its failure to prescribe maximum and minimum percentages," and, therefore, it is insisted, "permits of the manufacture and sale under the special sanction of the law of that which is inefficient, useless and a fraud upon the purchaser." It is besides asserted that the statute enumerates among the allowable ingredients a material which cannot be used, to wit,

pure carbonate of lead, and it is asked whether a statute having these effects can be a valid exercise of the police power of the State. The answer is ready enough. The enumeration of "pure carbonate of lead" may be corrected into commercial carbonate by a perfectly allowable exercise of construction; and as to the other charge, the inefficiency of the statutory ingredients on account of the failure to define the proportions in which they must be used, goes to the defect or incompleteness of the legislation, not to its legality. Were the proportions ever so exactly defined, the relation of mixed paints to the resultant product or its liberty of sale or power of competition would not be lessened.

There is a special and earnest criticism of the provision of the statute requiring varnish when used as a thinning material to be specified, and a like criticism of the term "pure colors." to designate one of the statutory ingredients. "The exclusion of varnish," it is said, "from the list of allowable ingredients is indefensible and undefended." The bill alleges, and it is not denied, that there is very large demand for certain mixed paints, which are enumerated, that are capable of producing a high gloss for decorative purposes and have high resisting power to moisture, and that varnish is the "only thinning material now known which may appropriately be used as an ingredient of mixed paint to produce said effects." "Notwithstanding these admitted facts," counsel's comment is. "varnish is branded as an adulterant by the statute."

The term "pure colors," it is alleged, is intended to refer to coloring material used by paint manufacturers in powdered form, and is known in the trade as "dry colors;" that the term "pure colors" neither has a definite meaning nor is "it capable of an exact or even approximately exact definition;" that some dry colors are regarded as "pure" and others "impure" by individual manufacturers, but there is "nothing approaching a consensus of opinion," and "no rational classification on the subject has ever been attempted." The standard "applied to dry colors is not purity but efficiency."

We regard these criticisms answered by our general discussion, and we have specially noticed them that it may not be thought we have overlooked them. They may emphasize what we have already said as to the possible imperfection of the classification of the statute. It must not be forgotten, however, that inaccuracies of definition may be removed in the administration of the law. And it must be borne in mind that the use of the non-enumerated ingredients is not forbidden nor the advantages of the practical tests and scientific research made by appellants taken away from them. The sole prohibition of the statute is that those ingredients shall not be used without a specific declaration that they are used-a burden maybe, but irremediable by the courts-maybe, inevitable, in legislation directed against the adulteration of articles or to secure a true representation of their character or composition.

Decree affirmed.

VANDALIA RAILROAD COMPANY v. INDIANA ex rel. THE CITY OF SOUTH BEND.

ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA.

No. 26. Argued October 18, 1907.-Decided December 16, 1907.

The construction of a pleading, the meaning to be given to its various allegations, the determination of the validity of a contract in reference to real estate within the State, and whether the form of remedy sought is proper, are, as a general rule, local questions.

If the judgment of the state court is based on a decision placed upon a sufficient non-Federal ground this court has no jurisdiction to review it. While this court is not concluded by the judgment of the state court and must determine for itself whether a Federal question is really involved, and may take jurisdiction if the state court has in an unreasonable manner avoided the Federal issue, the writ of error will be dismissed where no intent to so avoid the Federal question is apparent. Writ of error to review 166 Indiana, 219, dismissed.

THE facts are stated in the opinion.

Argument for Plaintiff in Error.

207 U.S.

Mr. Samuel Parker, with whom Mr. John G. Williams was on the brief, for plaintiff in error:

There was a denial by the state Supreme Court of an authority exercised under the United States, in that such court refused to consider and thereby, in effect, decided against the title and right of plaintiff in error, specially set up and claimed under such authority. That court refused to consider, and by so doing decided against, the title and right of the plaintiff in error to the free and unincumbered use of that part of its right of way and railroad over which it is claimed said Calvert street exists, its title and right to said right of way and railroad having been acquired under and by force of the judgment and decree of the Circuit Court of the United States, all as specially set up and claimed. Sec. 709, Rev. Stat.; Dupasseur v. Rochereau, 21 Wall. 130; Crescent City &c. Association v. Butcher's Union &c. Co., 120 U. S. 141; Pittsburg &c. Ry. Co. v. Long Island &c. Co., 172 U. S. 493.

The return of the railway company to the alternative writ of mandamus, after averring the facts constituting the first ground for the assertion that this court has jurisdiction, makes the direct and positive allegation of the existence of a Federal right in the following words: "And this defendant says that in this action it is sought to appropriate its property acquired by virtue of the decree aforesaid rendered in the Circuit Court of the United States, for the District of Indiana, without due process of law and without compensation, in violation of the Fourteenth Amendment of the Constitution of the United States, and this defendant now claims immunity under said Fourteenth Amendment from having its property taken from it by means of this action without compensation and without due process of law." This would seem to meet even the stringent requirements of the earlier cases in this court, of which Maxwell v. Newbold, 18 How. 511, is an example. Upon this ground, viz.: That the state court decided against the immunity claimed under the constitution, the return leaves nothing to inference but the averments are so