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there" establish this military post. The I District of Columbia to review a judg

(196 U. S. 152) Fourth Infantry will remain at Canton- ABRAHAM WOLFF, Plff. in Err., ment Clinch, and, should Col. Clinch have

V. rejoined his regiment, on the receipt of this

DISTRICT OF COLUMBIA. order he will be charged with the duty of preparing Col. Brooke's command for the Highways-duty of municipality to keep expedition to Tampa.

sidewalks free from obstructionsduty to By order of Major Gen. Brown.

light streets. E. Kirby, Aide-de-Camp. 1. A stepping stone on a sidewalk, near the

curb, is not made an unlawful obstruction by

the provision of D. C. Rev. Stat. § 222, that It will be seen that the direction is to

no portion of the public streets and avenues "establish a military post.” It was for shall be occupied by any private person, or this "post" that the tract in controversy

for any private purpose whatever. was taken, and the statement in the report 2. The District of Columbia is not charged of Colonel Brooke, as one of the reasons

with the duty so to light a street as to show for its selection, that, some 2 miles in the

the presence of a stepping stone on the side

walk, near the curb, by D. C. Rev. Stat. & rear of the place, a ridge of piney lands 233, directing the proper authorities to incommences, to which the troops could retire crease, as the public good may require, the with their tents on the slightest manifes

number of street lamps in the city of Washtation of disease, does not alter the fact

ington, and to do any and all things perthat this tract was selected for the "post.”

taining to the well lighting of the city. The further fact that permanent headquar

[No. 62.] ters of the Fourth Infantry were to remain at Cantonment Clinch is entirely consistent Argued November 11, 1904. Decided Januwith the direction to Colonel Brooke to pro

ary 3, 1905. ceed with four companies to Tampa bay and

N of judgment of the War Department, whose action is presumed to be the action of the ment which affirmed a judgment of the SuPresident, was that, having reference to the preme Court of the District entered on a Florida Indians who were about to be re-directed verdict in favor of defendant in an moved to that vicinity, it was important to action for damages for personal injuries alhave a military post established. Its per- / leged to have been caused by defendant's manence would depend largely on the de- negligence. Affirmed. velopments of the future. It remained a See same case below, 21 App. D. C. 464. military post for half a century, and a very

The facts are stated in the opinion. large tract was, in 1830, set apart for a

Messrs. John C. Gittings and D. W. surrounding reservation. True, it has since Baker for plaintiff in error. been all abandoned, but, although it may

Messrs. E. H. Thomas and Andrew B. have been within the contemplation of the Duvall for defendant in error. authorities that a time would come when Mr. Justice McKenna delivered the opinthe necessity for this military post would ion of the court: cease, it was none the less for the time be- This is an action for damages for injury ing a post established by the proper de caused to plaintiff in error (who was also partment of the government. It was until plaintiff below) by an alleged negligent the post was abandoned an appropriation omission of duty by the District of Columof the land for military purposes. Quite bia. a number of reservations and posts in our On the 27th of October, 1895, about 9 western territory, once established, have o'clock in the evening, plaintiff had occaafterwards been abandoned; but, while so sion to visit Sangerbund hall, a house on appropriated they are excepted from the C street, in the city of Washington. On operation of the public land laws, and no coming out, and for the purpose of apright of an individual settler, attaches to, proaching a wagon which was standing in or hangs over, the land to interfere with the street, he walked rapidly across the such action as the government may there sidewalk and, by falling over a block of after see fit to take in respect to it. No stone called a stepping stone or carrlage cloud can be cast upon the title of the gov: curb, broke his leg. Some time subsequent

step, which was on the sidewalk near the ernment,- nothing done by an individual to embarrass it in the future disposition of ly he was compelled to submit to its ampu

tation. the land. Without considering, therefore, the ques

The charge against the city was that it

was a body corporate and municipal, and tion of laches or limitation, we are of opin- had the power, and it was its duty, to keep ion that the decision of the Court of Appeals was correct, and it is affirmed.

1. See Municipal Corporations, vol. 36, Cent, Dig. § 1631.

the sidewalks free of obstructions and nui- stones, such as the one described in this sances, one of which, it was alleged, said case, which cannot be held to constitute a stone was.

And further, that it was the nuisance. They are in some respects inciduty of the District of Columbia to keep dental to the proper use of the street as a the streets properly lighted. In neglect of public highway.

The stepping both, it was alleged, it did "allow and suf- stone in this case, located upon the sidefer" the stone to be securely fastened into walk in front of a private house, was a and remain upon the sidewalk, and did reasonable and necessary use of the street, "keep and continue” it there during the not only for the convenience of the owner nighttime of the 27th of October, without of the house, but for other persons who de. a light to show its presence or a watchman sired to visit or enter the house for busito notify wayfarers of its existence. Dam-ness or other lawful purposes. ages were laid at $25,000. The District of It was further remarked: “The question Columbia pleaded not guilty. A jury was involved in this class of cases is whether impaneled. At the conclusion of the tes- an object complained of is usual, reasontimony the District moved the court to in-able, or necessary in the use of the street struct a verdict for it on the ground that by the owner of the premises, or anyone the plaintiff had not made out a case. The else.” motion was granted, and a verdict in ac- Cincinnati v. Fleischer, 63 Ohio St. 229, cordance with the instructions. A motion 234, 58 N. E. 568, 569, also passed upon for a new trial was made and denied, and a city's liability for the existence of a the case was then taken to the court of ap- stepping stone upon a sidewalk. The court peals, which affirmed the judgment of the said: “It [the stone]

"It [the stone] was within that court below. 21 App. D. C. 464.

portion of the street by the curb, which, acThe first contention of plaintiff in error cording to common knowledge, is devoted to is that the stone was an unlawful obstruc- carriage blocks, lamps, hitching posts, and tion per se.

This is deduced as a conse- shade trees, which pedestrians of ordinary quence from § 222 of the Revised Statutes care observe and avoid.” And Elster v. of the District of Columbia, which reads as Springfield, 49 Ohio St. 82, 96, 30 N. E. 274, follows:

was quoted, to the effect that “the laying "No open space, public reservation, or of sewers, like that of gas and water pipes, other public ground in the city of Washing- beneath the soil, and the erection of lamps ton, nor any portion of the public streets and hitching posts, etc., upon the surface, or avenues in said city, shall be occupied by is a street use, sanctioned as such by their any private person or for any private pur- obvious purpose and long-continued usage.” pose whatever.

It was held in Macomber v. Taunton, 100 This section cannot be construed to pro- Mass. 255, that a hitching post was not a hibit putting upon a street any object with defect in the highway for which the city out regard to its effect on the use of the was liable for permitting it to remain. street. The sweeping character of such a Plaintiff in error citos Scranton v. Catconstruction need not be pointed out. There terson, 94 Pa. 203, and Davis v. Austin, 22 are objects which subserve the use of Tex. Civ. App. 460, 54 S. W. 927. streets, and cannot be considered obstruc- In the first case an iron water plug in tions to them, although some portion of the middle of a street, and projecting above their space may be occupied. This is illus- its surface, was held to be a nuisance. Obtrated by a number of cases.

viously, the case is not in point. The secIn Dubois v. Kingston, 102 N. Y. 219, 55 ond case sustains the contention of plaintiff Am. Rep. 804, 6 N. E. 273, a stepping stone in error, but cannot be followed against the 3 feet 4 inches in length and 20 inches wide authority and reasoning of the other cases. was placed on the edge of the sidewalk. The 2. The second contention of plaintiff in court observed that the stone was not of error is that it was the duty of the District unusual size or located in an improper of Columbia to so light the street as to place, and that it would be extending the show the presence of the stone thereon, the liability of cities too far to hold them lia- District having full knowledge thereof. ble for permitting stepping stones on the This duty is made to rest mainly upon g edge of sidewalks.

233 of the Revised Statutes of the District Robert v. Powell, 168 N. Y. 411, 55 L. of Columbia, which is as follows: R. A. 775, 85 Am. St. Rep. 673, 61 N. E. “The proper authorities are directed to 699, was also an action for injuries caused increase, from time to time, as the public by a stepping stone. The court said: good may require, the number of street “There are some objects which may be lamps on any of the streets, lanes, alleys, placed in, or exist in, a public street, such public ways, and grounds in the city of as water hydrants, hitching posts, tele- Washington, and to do any and all things graph poles, awning posts, or stepping | pertaining to the well lighting of the city." This, in one sense, is but another formgiven by the New Albany company in 1886, of the first contention. The duty of a city 1890, and 1894, which were foreclosed in the to especially illuminate a place where an United States circuit court, and through object is, or to put a policeman on guard which foreclosure and subsequent sale its by it to warn pedestrians, depends upon title became vested; defendants, through a the object being an unlawful obstruction. judgment recovered by McGuire September

The plaintiff in error can claim nothing 24, 1896, in the circuit court of White counfrom the general duty of the city under ty, against the New Albany company for the statute to light the streets. The exer- $2,416.30, upon which an execution was iscise of such duty was necessarily a matter sued October 16, 1897, to the sheriff of Puof judgment and discretion, depending laski county, and a levy made upon the real upon considerations which this record does estate in dispute. A sale was made Novemnot exhibit.

ber 13, 1897, to the defendant Hathaway, Judgment affirmed.

to whom a deed was executed by the sheriff November 23, 1898.

It was insisted by the plaintiff railroad (196 U. S. 128)

company that the property in controversy CHICAGO, INDIANAPOLIS, & LOUIS- was a part of the ground appurtenant to its

VILLE RAILWAY COMPANY, Plff. in station at Francesville, Indiana, and that Err.,

the foreclosure and sale of the property of

the New Albany road, through which it obPATRICK MCGUIRE et al.

tained its title, carried with it the title to

the premises in dispute. The judgment of Error to state court-Federal question, McGuire was obtained after the execution when raised in time.

of the mortgages through which the plain

tiff claimed its title. Defendants insisted The suggestion of a violation of a Federal right, that the disputed property was not embraced

first made in a petition for the review, in the within the mortgages under the after-achighest state court, of the judgment of an intermediate appellate court, is too late to quired property clause inserted therein, beserve as a basis for the exercise of the ap- cause entirely foreign to the operation of the pellate jurisdiction of the Supreme Court of railroad, and therefore could not have been the United States, where it does not afirma- embraced within the foreclosure and sale. tively appear that the state court passed up. on the Federal question, and the denial of their contention, held that the trial court

The appellate court of Indiana sustained ground that the question, not having been was right in instructing the jury to return suggested in the court below, could not be a verdict for the appellees, and affirmed its made available on appeal.

judgment. 31 Ind. App. 110, 99 Am. St.

Rep. 249, 65 N. E. 932. The supreme court [No. 69.]

denied a petition for review. Argued December 2, 5, 1904. Decided Jan

Messrs. H. R. Kurrie, G. W. Kretzinger, uary 3, 1905.

and E. O. Field for plaintiff in error. N ERROR to the Appellate Court of the IN

Messrs. W. H. H. Miller and Maurice State of Indiana to review a judgment Winfield for defendants in error. which affirmed a judgment of the Circuit Court for Pulaski County in that State en

Mr. Justice Brown delivered the opinion tered on a verdict in favor of defendants of the court: in a suit to quiet title and for an injunc- Motion is made to dismiss this writ of tion. Dismissed 'for want of jurisdiction. error upon two grounds: (1) That the

See same case below, 31 Ind. App. 110, supposed Federal question was not set up 99 Am. St. Rep. 249, 65 N. E. 932.

and claimed until too late; (2) that there

is no Federal question in the case. Statement by Mr. Justice Brown:

The motion must be sustained upon the This was a suit in the nature of a bill first ground. The Federal question now put in equity instituted in the circuit court for forward by the plaintiff is that the appellate Pulaski county, by the railroad company, to court failed to give full faith and credit quiet its title to certain land, and for an to the foreclosure decree made by the cirinjunction. The case was tried before a cuit court of the United States and the sale jury, and a verdict returned for the defend- in pursuance thereof, in refusing to hold ants, under instruction of the court.

that the mortgages foreclosed by said deBoth parties claimed title through the cree covered and included in their descripLouisville, New Albany, & Chicago Railway tion of the property therein conveyed the Company,-plaintiff in error, which was also real estate in controversy. This question, plaintiff below,—through certain mortgages ' however, never seems to have been presented either to the court of first instance or to True, the Federal question was set up at the court of appellate jurisdiction. It is length in the petition filed in the appellate true the question was argued at length as court for a writ of error from this court, to what was intended to be covered by the but that was clearly too late. Fowler v. description in the mortgages and by the Lamson, 164 U. S. 252, 41 L. ed. 424, 17 foreclosure and sale, but the Federal char. Sup. Ct. Rep. 112; Missouri P. R. 05. V. acter of this question was not indicated un- Fitzgerald, 160 U. S. 566, 575, 40 L. ed. 539, til after a petition for a rehearing in the 540, 16 Sup. Ct. Rep. 389; Ansbro V. appellate court had been overruled. Plain United States, 159 U. S. 695, 40 L. ed. 310, tiff then filed in the supreme court of the 16 Sup. Ct. Rep. 187. state a petition for the transfer of the cause In this connection the plaintiff in error to that court, and, as grounds for such urges upon us the proposition that, as it retransfer, insisted that the appellate court lied solely upon a title derived by a forecloserred in holding that the property in contro ure and sale in a Federal court, the state versy was after-acquired property not used court must necessarily have considered and for railway purposes, and on this account decided that question, and that in such cases was not within the mortgages upon which the Federal Constitution need not

not be appellant's title was based, and that the specially set up and claimed. This argucourt thereby "refused to give due effect to ment would necessarily not apply to the the judgment of the Federal court."

supreme court of the state, which, as above This petition appears to have been denied indicated, might have held, and probably by the supreme court without an opinion. did hold, that the Federal question, not havDoubtless, if that court had proceeded to ing been suggested in the court below, could pass upon this as a Federal question we not be made available on appeal. The apshould have held it sufficient, but it will be pellate court did not discuss it. There are observed that the petition contained a mere doubtless a few cases which hold that, where suggestion of a violation of a Federal right, the validity of a treaty or statute or aunot the distinct presentation of a Federal question, and that no reference was made to thority of the United States is raised, and the Constitution of the United States. F. th

the decision is against it, or the validity of G. Oxley Stave Co. v. Butler County, 166 a state statute is drawn in question, and U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. the decision is in favor of its validity, and 709. We are left to infer that the petition the Federal question appears in the record was denied because the point of constitu- and was decided, or such decision was nectionality was not made in either of the essarily involved in the case, the fact that courts below. The rule seems to be settled it was not specifically set up and claimed in Indiana, as in many other states, that is not conclusive against a review of such the matter assigned in the supreme court of question here. Columbia Water Power Co. the state as error must have been properly v. Street R. Light & P. Co. 172 U. S. 475– presented in the court below and there ad-488, 43 L. ed. 521–525, 19 Sup. Ct. Rep. 247. judicated. Coleman v. Dobbins, 8 Ind. 156– But as the validity of no statute, state or 164; Priddy v. Dodd, 4 Ind. 84; Wesley v. Federal, or authority thereunder, was called Milford, 41 Ind. 415; Selking v. Jones, 52 in question here, this rule does not apply. Ind. 409; Russell v. Harrison, 49 Ind. 97. The true and rational rule stated by this This is also the practice in this court. Cor-court in Bridge Proprietors v. Hoboken nell v. Green, 163 U. S. 75–80, 41 L. ed. 76- Land & Improv. Co. 1 Wall. 116-145, 17 L. 78, 16 Sup. Ct. Rep. 969; Ansbro v. United ed. 571-576, is clearly applicable: “That States, 159 U. S. 695, 40 L. ed. 310, 16 Sup. the court must be able to see clearly from Ct. Rep. 187; Pine River Logging & Improv. the whole record that a certain provision of Co. v. United States, 186 U. S. 279–289, 46 the Constitution or act of Congress was reL. ed. 1164-1169, 22 Sup. Ct. Rep. 920. If the supreme court did in fact consider the lied on by the party who brings the writ Federal question the burden was upon the of error, and that the right thus claimed plaintiff to show it. There is no presump-by him was denied.” This case is the not tion that the court considered such ques. infrequent one of an attempt to clutch at tion. Under such circumstances we decline the jurisdiction of this court as an afterto review the constitutional question here. thought, when all other resources of litigaThis was expressly held in Jacobi v. Ala- tion have been exhausted. bama, 187 U. S. 133, 47 L. ed. 106, 23 Sup.

The Federal question, if any such existed, Ct. Rep. 48; Layton v. Missouri, 187 U. S. -as to which we express no opinion,--was 356, 47 L. ed. 214, 23 Sup. Ct. Rep. 137; not set up or claimed at the proper time, Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, and the writ of error must therefore be dis8 Sup. Ct. Rep. 21.

missed.

V.

(196 U. S. 157) JOHN J. MOORE, Trading under the Firm | price obtained for the same upon the sale in Name of J. J. Moore & Company, Appt.,

open market.

The causes of action rested on two conUNITED STATES.

tracts entered into by appellant with the

United States through the proper officer of Contracts-effect of usage--performance.

the Quartermaster's Department, United

States Army, by which appellant agreed to 1. A custom existing in San Francisco between furnish and deliver to that department,

shippers and shipowners, requiring a con. Honolulu, Hawaiian islands, “at the wharf," signee to designate a berth for the discharge about 3,900 tons of the best merchantable of cargo, cannot prevail over the terms of contracts requiring the delivery of certain “Wallsend” Australian steam coal, at the quantities of coal respectively “at the wharf” rate of not less than 100 tons a day, at and won wharf as customary," to the Quar-2,240 pounds to the ton, dangers of the sea termaster's Department of the United States and any causes beyond appellant's control Army at Honolulu, at which place the custom excepted, the deliveries to commence on the is to discharge freight upon the wharves, so as to render the government liable for the arrival of the Hawaiian ship Euterpe at delay in reaching a berth, which was caused Honolulu, on or about July 23, 1898, for by the conditions existing in Honolulu har- and in consideration of which appellant bur to the ships chartered by the vendor to was to be paid at the office of the Quartercarry out his contract.

master, United States Army, at San Fran2. The delivery and receipt of 4,634 tons of cisco, California, at the rate of $9 per ton,

coal, under a contract for the delivery and
acceptance of “about 5,000 tons," does not in gold coin of the United States.
so complete the contract as to entitle the

And by the second contract appellant was vendee for that reason to refuse a tender of to deliver "on wharf, as customary,” about the remaining 366 tons.

5,000 tons of the best merchantable Aus

tralian, Seaham, Wallsend, or Pacific Co(No. 71.]

operative steam coal, deliveries to commence Argued December 6, 1904. Decided Janu- The other facts were found by the court of

at Honolulu on or about October 1, 1898. ary 3, 1905.

claims as follows:

“III. That at the respective times these view a judgment denying reimburse contracts were made it was the custom at

: ment from the United States of demurrage,

San Francisco between shippers and shipand refusing a recovery of the difference be

owners to insert in their charter parties a tween the contract price of coal which the stipulation to the effect that cargoes were United States refused to receive, and the to be discharged as customary, in such cusprice obtained therefor upon sale in open

tomary berth or place as consignee shall market. Reversed and remanded, with di-direct, ship being always afloat, and at an rections to enter judgment for appellant for average specified number of tons per weather the difference between contract and market working days (Sundays and holidays exprice.

cepted), to commence when ship is ready to See same case below, 38 Ct. Cl. 590.

discharge, and notice thereof has been given The facts are stated in the opinion.

by the captain in writing, and, if detained Messrs. L. T. Michener and W. W. Dud-over and above the said laying days, demurley for appellant.

rage to be at 4d. register ton per day; which Mr. Philip M. Ashford and Assistant stipulation was duly inserted in the conAttorney General Pradt for appellee.

tract of the claimant with the ships em

ployed by him to transport the coal menMr. Justice McKenna delivered the opin- tioned in the contracts. It does not appear ion of the court:

that the officers and agents of the defendant, The appellant is a general commission who were authorized to make, and did make, merchant and shipper at San Francisco. He the contracts for the defendant, had knowlfiled his petition in the court of claims, con- edge or notice of such custom, nor that the sisting of two paragraphs, in the first of contracts, or either of them, were made in which he claimed reimbursement from the view of such custom. United States of the sum of $1,053.36, de- "IV. The claimant [appellant] discharged murrage paid by him for the deterition over his said contracts as follows: The first lay days of two ships chartered by him to contract: By the arrival at Honolulu of the transport coals to Honolulu, and there to be ship Euterpe with 1,543 tons of coal, July delivered to the United States. By the 31, 1898, which was placed in berth at the second paragraph he prayed the recovery of wharf by the harbor master of said port the sum of $1,120.87, the difference between August 8, 1898, at 2.15 P. M. and commenced the contract price of 366 tons of coal, which discharging coal at 3 P. M. same day, and the United States refused to receive, and the finished August 29, 1898, consuming eigh

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