the proviso must be understood in the strict technicality of limiting or qualifying the preceding subject-matter, and to the carving out therefrom some special matter, and, it is insisted, giving the proviso that purpose, the specially carved-out matter "is the requirement of an auction sale in the case of †Sec. 252. "The commissioner of public lands or superintendent of public works, as the case may be, by and with the authority of the governor, shall have power to lease, sell, or otherwise dispose of the public lands and other property, in such manner as he may deem best for the protection of agriculture, and the general welfare of the territory, subject, however, to such restrictions as may, from time to time, be expressly provided by law.” Sec. 254. "The provisions of § 253 shall not extend or apply to cases where the gov ernment shall, by quitclaim, or otherwise, dispose of its rights in any land, by way of compromise or equitable settlements of the rights of claimants, nor to cases of exchange or sales of government lands in return for parcels of land acquired for roads, sites of government buildings, or other government purposes." therein as a defendant, but the writ was, gin,t*and also §§ 252 and 254, which must subsequently dismissed as to him, on mo- be considered in connection with it. The tion of his successor, the present governor. argument to support the contention is that The supreme court of Hawaii assumed, without definitely deciding, that the plaintiff had a right to maintain the suit. The question of the validity of the exchange it decided against the contention of the plaintiff, holding that the commissioner had the power to make the exchange. Of the right of plaintiff to sue, the court said that it had been adjudicated in that court that a citizen and taxpayer had a right to obtain an injunction against official acts involving unauthorized use of public funds. To sustain this view the court cited Castle v. Kapena, 5 Haw. 27; Lucas v. American Hawaiian Engineering & Constr. Co. 16 Haw. 80; Castle v. Atkinson, 16 Haw. 769. It is an implication, from the comment of the court, that the ground of those decisions was the pecuniary loss that would come to the taxpayer from the action sought to be restrained. But the court, however, went farther, and said that perhaps the right of the taxpayer to "restrain official acts affecting public property ought not to be based on the pecuniary loss, howsoever trivial or conjectural, but on the broad ground that any citizen may obtain a judicial inquiry into the validity of such acts, and an injunction against them if found to be unauthorized." The court remarked, however, that, on account of the view it entertained of the validity of the acts of the officers, it would not decide the question of the right of "And he may, with such consent, sell pubthe plaintiff to sue. On neither question lic lands not under lease in parcels of not are we called upon to pass, nor are we reover 600 acres, at public auction, upon part quired to decide whether the land laws credit and part cash, and deliver possession of the territory are Federal statutes by vir- under an agreement of sale containing contue of § 83 of its organic act, which provides ditions of residence on or improvement of that its laws "relating to public lands shall the premises sold, or of payment by instalcontinue in force until Congress shall other-ments or otherwise of the purchase price, wise provide," and that therefore a Federal question is involved in the case. We have held that the jurisdiction of this court can only be invoked by a party having a personal interest in the litigation. Smith v. Indiana, 191 U. S. 138, 148, 48 L. ed. 125, 126, 24 Sup. Ct. Rep. 51. The plaintiff has not such an interest. He sues as a property owner and taxpayer, and the relief he asks is an injunction against the commissioner of public lands, to restrain him from exchanging the lands described in the bill for other lands. It is contended that such action is illegal, because that officer has no power to exchange lands under lease, nor has he power to exchange lands except in parcels of not over 1,000 acres. The contention is based on the proviso of § 276 of the Revised Laws of Hawaii. We give the section in the mar29 S. C.-10. Sec. 276. "The commissioner may, with the consent of the governor, sell public lands not under lease, in parcels of not over 1,000 acres, at public auction for cash. Upon any such sale and the payment of the full consideration therefor, a land patent shall be issued to the purchaser. or all or any of such conditions. "And in case of default in the performance of such conditions, the commissioner may, with or without legal process, and without notice, demand, or previous entry, take possession of the premises and thereby determine the estate created by such agreement. In case of such forfeiture, such land shall be sold at auction, either as a whole or in parcels, for cash or on terms of time payments, in the discretion of the commissioner; and if such sale shall result in an advance on the original price, the original shall receive therefrom the purchaser amounts of his payments to the government on account of purchase, without the interest, and a pro rata share in such advance in proportion to the amounts of his payments. If such sale shall result, however, in a less price than the original, the amount returnable to him shall be charged with a pro rata amount of such decrease, proportioned to the amounts of his payments. The treais hereby authorized to pay the surer the exchange of land," leaving as applicable | fy this inference, for he avers that the exto such exchange all the other limitations. change is not proposed for settlement of The supreme court of the territory, as we have seen, decided against the contention. Let us grant,* arguendo, that the decision may be disputed, what injury has plaintiff shown that he must suffer by the exchange? What injury, indeed, has he shown, either to the teritory or to any taxpayer of the territory? rights or claims, nor for the use of roads, nor for the site or sites of the government building or buildings, nor for any other government purpose. Therefore, as plaintiff has no personal interest in the matter in litigation, the writ of error is dismissed. V. (211 U. S. 432) STATE OF TEXAS. COURTS (8 396*)-FEDERAL QUESTIONS— An order of the highest court of a state, on a motion for rehearing, which recites that the cause came on to be heard on such motion, and, "the same being considered by the court, said motion is overruled," does not show that the court passed on the Federal question first raised by such petition, so as to sustain a writ of error from the Supreme Court of the United States. The plaintiff alleges that he is a taxpayer, but does not allege anything from which WILLIAM MCCORQUODALE, Plff. in Err., it can be inferred that he will be injured as a taxpayer, subject to a burden as such. It is true it is alleged that the lands which are offered for exchange are under lease for terms varying from twenty-five to thirty-five years, at a rental of $1,600. But it is also alleged that the purpose formed by the governor and commissioner, and the purpose advertised by them, was to get for the lands other lands of equal value and of greater immediate service to the territorial government. The suit was brought to restrain the execution of that purpose. Benefit, therefore, not injury, apparently may result from the exchange, and, so far as we are informed by the record, it may be even a benefit to the policy which plaintiff declares it is the purpose of the land laws of the territory to promote, and upon which he, in part, bases his interpretation of them, the policy of encouraging "the settlement and homesteading of public lands," and the "parceling out" of them "in limited areas on favorable terms." The plaintiff takes pains to justi amount returnable to the outgoing tenant, upon the requisition of the commissioner, out of any funds available for such purpose. "Which agreement shall entitle the purchaser to a land patent of the premises upon the due performance of its conditions. "The commissioner shall have authority to fix any upset price for all such sales for cash or part credit and part cash. "All such sales shall be held in Honolulu, or in the district where the land to be sold is situated. Any person designated by the commissioner may act as auctioneer at such sales without taking out an auctioneer's license. "Provided, however, that land patents may be issued in exchange for deeds of private lands or by way of compromise upon the recommendation of the commissioner and with the approval of the governor without an auction sale, and further provided, that the governor may, in his discretion, upon such recommendation and approval. execute quitclaim deeds for perfecting the titles of private lands where such titles are purely equitable, or where such lands are suffering under defective titles, or in cases of claims to use of lands upon legal or equitable grounds." [Ed. Note.-For other cases, see Courts, Cent. Dig. 1080; Dec. Dig. 396.] [No. 38.] Argued and submitted December 3, 1908. I N ERROR to the Court of Criminal Appeals of the State of Texas to review a judgment which affirmed a conviction of murder in the District Court of Brazos County of that state. Dismissed for want of jurisdiction. See same case below (Tex. Crim. App.) 98 S. W. 879. The facts are stated in the opinion. Messrs. Sam Streetman, Thomas H. Ball, and Andrews, Ball, & Streetman for plaintiff in error. Messrs. R. V. Davidson and Felix J. McCord for defendant in error. Mr. Justice McKenna delivered the opin ion of the court: Plaintiff in error, on March 10, 1905, was indicted by the grand jury of the district court of Brazos county, Texas, for the mur der of one Henry Spell. He was brought to trial and convicted of murder in the first degree, the jury fixing his punishment at imprisonment for life in the penitentiary. The judgment, after stating the number and title of the case, the arraignment of the defendant (plaintiff in error), his plea, the impaneling of the jury, the trial of the case, the presence of the defendant throughout all of the proceedings, the retirement of the jury to consider of their verdict, recites that the jury "afterwards, on April 1st, were brought into open court by the proper •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 434 officers, the defendant and his counsel being | transferred from Tyler to the Austin branch present, and in due form of law returned in of the court, to the end that this court may open court the following verdict: determine its jurisdiction of this appeal, and whether or not the judgment should be reformed and affirmed, or whatever action this court deems necessary. 66 'We, the jury, find the defendant guilty of murder in the first degree, and assess his punishment at confinement in the state penitentiary for life. J. H. White, Foreman.'" The following is the sentence: "Respectfully submitted." The motion to transfer was granted. The defendant, by his counsel, excepted, and op"April 15th, 1905. posed the state's motion to reform and af"This day this cause being again called, the firm the judgment, on the following state appeared by her district attorney, and grounds: (1) The motion was not disposed the defendant, William McCorquodale, was of at the term at which it was filed; (2) brought into open court in person, in charge It was not such a motion as is contemplated of the sheriff, his counsel also being present, by law, is not a motion for rehearing, nor a for the purpose of having the sentence of the motion for the court to correct its own judglaw pronounced against him in accordance | ment, but it is a motion to enter an originwith the verdict and judgment herein renal judgment, which the lower court alone dered and entered against him on a former day of this term; and thereupon the defendant, William McCorquodale, was asked by the court whether he had anything to say why sentence should not be pronounced against him, and he answered nothing in bar thereof, whereupon the court proceeded, in the presence of the said defendant, William McCorquodale, to pronounce sentence against him, as follows: "It is the order of the court that the de'fendant, William McCorquodale, who has been adjudged to be guilty of murder in the first degree, and whose punishment has been assessed by the verdict of the jury at confinement in the penitentiary for life, be delivered by the sheriff of Brazos county, Texas, immediately to the superintendent of the penitentiaries of the state of Texas, or other person legally authorized to receive such convicts, and the said William McCorquodale shall be confined in said penitentiaries for life, in accordance with the provisions of the law governing the penitentiaries of said state, and the said William McCorquodale is remanded to jail until said sheriff can obey the direction of this sentence.' The judgment was affirmed by the court of criminal appeals. 98 S. W. 879. A motion for rehearing was made by plaintiff in error and denied. Subsequently a motion was made by the state as follows: "Now comes the state, by the assistant attorney general, and would show the court that the judgment in this cause was affirmed at Tyler, and the appellant's motion for rehearing was overruled at the Dallas term; "That since which time it has been discovered, and this court's attention is now called to the fact, that the transcript does not contain a complete judgment against appellant, though the sentence is contained in the transcript: "Wherefore, the state prays that the court order the transcript and all papers has the power to do at the proper time, and that the court of criminal appeals has no power to so do. The latter ground was repeated in many ways, and it was alleged, with much repetition, that the court had no jurisdiction to grant the motion of the state, and it was prayed that the motion be denied in so far as it sought to have a judgment entered, or supplied, or to supply the want of the property judgment in the court below, and in so far as it sought to have the court criminal appeals make any other order than to issue its mandate in accordance with its opinion theretofore rendered. The court granted the motion of the state, holding that the judgment was in the ordinary form and complete, so far as it went, but that it did not comply with certain requirements of the Code of Criminal Procedure of the state, in that it did not declare, as provided in subdivisions 9 and 10 of art. 831, that it was considered by the court that the defendant be adjudged guilty of the offense as found by the jury, and that the defendant be punished as determined by the jury. The court further held that it had the power to reform and correct the judgment so as to bring it into accordance with the provisions of the Code of Criminal Procedure. The court, after reciting the proceedings and reviewing prior cases, concluded its opinion as follows: "Reform' means to correct; to make anew; to rectify. Rapalje, Law Dict. p. 1083. Here we have all of the foundation of the judgment, including the verdict of the jury, which is the basic rock on which the judgment is formulated. We have, following this, the final judgment of the court, which is the sentence. This itself adjudicates the guilt of appellant and sentences him, in accordance with the verdict and judgment. From this data certainly we can do that which the court a quo, in due order, should have done. We accordingly hold that the judgment of the court below should be | 714, 17 Sup. Ct. Rep. 322. It is true that reformed and corrected, so as to make it read, in connection with the judgment as entered, and following the verdict, as follows, to wit: "It is therefore considered, ordered, and adjudged by the court that the defendant, William McCorquodale, is guilty of the of fense of murder in the first degree, as found by the jury, and that he, the said William McCorquodale, be punished, as has been determined by the jury, by imprisonment for life in the penitentiary; and it is further ordered, adjudged, and decreed by the court that the state of Texas do have and recover of and from the defendant, William McCorquodale, all costs of this prosecution, for which execution may issue; and that the said defendant is now remanded to jail to remain in custody to await the further or der of the court.' "The state's motion to reform is accordingly granted; the judgment is reformed and corrected, as above indicated, and, as reformed and corrected, the judgment is affirmed in accordance with the previous opinion of this court." In answer to the motion of the state, the defendant did not set up that the action invoked by the state would, if granted, contravene the 14th Amendment of the Constitution of the United States. He, how ever, presented a petition for, to quote from the petition, "a rehearing upon the state's motion to 'reform and affirm," and urged as one of the grounds thereof the following: "This court's said opinion is further erroneous in that it, in effect, deprives appelant of that due process of law guaranteed him by the Constitution of the state of Texas, and that of the United States, in this: that it is in effect the rendering of a judgment against him in his absence, and the authorization of sentence against him without a judgment." The other grounds of the motion for rehearing were repetitions of the grounds urged in the answer to the state's motion and other grounds based on the local procedure, the basis of all being the want of jurisdiction in the court. So. we have also decided that, if the court en- (212 U. S. 1) MAYOR AND ALDERMEN OF THE CITY OF KNOXVILLE, Appt., v. KNOXVILLE WATER COMPANY. COURTS (§ 339*)-SUPREME COURT-REVIEW OF FACTS-FINDINGS BY MASTER. 1. The general rule respecting the conclusiveness of a master's findings of fact when confirmed by the court will not be applied by the Federal Supreme Court on an appeal from a decree enjoining the enforcement of a municipal ordinance fixing maximum water rates, on the ground that the ordinance is invalid under U. S. Const., 14th Amendment, as confiscatory. [Ed. Note.-For other cases, see Courts, Cent. Dig. 1090; Dec. Dig. § 399.*] 2. A deduction for depreciation from age and use must be made from the estimated cost of reproducing a waterworks plant when determining the present value of the tangible property for the purpose of testing the reasonableness of the rates fixed by a municipal ordinance. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 292; Dec. Dig. § 203.] The order of the court on the motion for WATERS AND WATER COURSES (§ 203*)— a rehearing was as follows: "This cause came on to be heard on appellant's motion for a rehearing, and, the same being considered by the court, said motion is overruled." This court has decided many times that it is too late to raise a Federal question for the first time in a petition for rehearing in the court of last resort of a state after that court has pronounced its final de cision. Loeber v. Schroeder, 149 U. S. 580, 585, 37 L. ed. 856, 859, 13 Sup. Ct. Rep. 934; Pim v. St. Louis, 165 U. S. 273, 41 L. ed. For other cases see same topic & § NUMBER in WATER RATES REASONABLENESS-VALUATION OF TANGIBLE PROPERTY. 3. Capitalization affords no guide to the present value of the tangible property of a waterworks company which is objecting to the rates fixed by municipal ordinance as confiscatory, where substantially all the common and preferred stock was issued uncontracts entered into der construction with persons who controlled the corporate action, and was greatly in excess of the true value of the property furnished under the contracts. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 292; Deo. Dig. § 203.j Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *437 WATERS AND WATER COURSES (§ 203*)- | from a decree of the circuit court of the -IN 4. The absence of any requirement in a municipal ordinance fixing water rates, that the waterworks company shall continue to give a discount for prompt payment, must be taken into consideration when determining, for the purpose of testing the reasonableness of such rates, the reduction in the company's income which will be produced by the enforcement of such ordinance. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 292; Dec. Dig. § 203.] WATERS AND WATER COURSES (§ 203*)WATER RATES - REASONABLENESS-VALUATION. United States for the eastern district of Tennessee. The appellee is a public service corporation, chartered for, and engaged in, the business of supplying that city and its inhabitants with water for domestic and other uses. The cause in which the decree was rendered is a suit in equity which was brought by the company on December 7, 1901, against the city to restrain the enforcement of a city ordinance fixing in detail the maximum rates to be charged by the company. This ordinance was enacted on March 30, 1901. The bill contained many allegations, which have become immaterial by the decision of this court in Knoxville Water Co. v. Knoxville, 189 U. S. 434, 47 L. ed. 887, 23 Sup. Ct. Rep. 531, in which the validity of the ordinance was sustained, except so far as it might confiscate the property of the company by fixing rates so low as to have that effect. The latter contention alone was left open to the company, and to it the remainder of the bill is mainly directed. The allegations in that regard are, that the rates fixed by the ordinance were so low that they denied to the 6. The net income of a waterworks com- company a reasonable return upon the proppany during the years succeeding the pass erty employed in the business, and thereby age of a municipal ordinance fixing maximun took it for public use without compensawater rates, which has never been enforced, tion, in violation of the 14th Amendment to should be considered by the courts in de the Constitution of the United States. Aft-* termining the reasonableness of such rates. er answer by the respondent and replication [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 292; Dec. Dig. § 203.1 by the complainant the cause was referred WATERS AND WATER COURSES (§ 203*)— to a special master, whose report was conFIXING OF RATES-ENJOINING ENFORCE-firmed by the court. The master found and 5. Depreciation represented by the destruction or obsolescence of parts of the original plant and by impairment in value of those parts which remain in existence and continue in use cannot be added to the present value of the surviving parts when determining the value of the tangible property of a waterworks company for the purpose of testing the reasonableness of the rates fixed by municipal ordinance. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 292; Dec. Dig. § 203.] WATERS AND WATER COURSES (§ 203*)WATER RATES REASONABLENESSCOME. MENT. - IN 7. The courts should not enjoin the enforcement of a municipal ordinance fixing maximum water rates on the ground that such ordinance is invalid under U. S. Const., 14th Amendment, as confiscatory, unless the confiscation is clearly apparent. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dis. § 293; Dec. Dig. § 203.*] [No. 17.] reported that the value of the plant and property employed in the business at the date of the passage of the ordinance was $608,427.95; that the gross income from the company's business was $88,481.39, and that the operating expenses were $34,750.91. The figures of income and expense are those of the fiscal year ending March 31, 1901, and the valuation was made as of that date. The master found and reported that the Decided January diminution of income which would have resulted from the enforcement of the ordinance during that fiscal year was $17,623.64, and that the gross income would have been reduced thereby to $70,857.75, leaving a net income of $36,106.84. This net income was less than 6 per cent on the valuation. In the opinion of the master 8 per cent, which included 2 per cent to provide for deprecia PPEAL from the Circuit Court of the United States for the Eastern District of Tennessee to review a decree enjoining the enforcement of a municipal ordinance fix ing maximum water rates. Reversed and remanded with directions to dismiss the bill without prejudice. The facts are stated in the opinion. tion, was the minimum net return which the company was entitled to earn. The T. Kennerly, and J. Pike Powers, Jr., for judge of the circuit court, in his opinion confirming the master's report, adopted the appellant. master's valuation of the whole plant and Messrs. Joshua W. Caldwell, R. E. L. Mountcastle, Charles T. Cates, Jr., and property at $608,427.95 (although he held 'S. G. Shields for appellee. Mr. Justice Moody delivered the opinion of the court: This is an appeal by the city of Knoxville that it ought to be increased by about $3,000), and the master's finding that the gross income was $88,481.39; that the expenses were $34,750.91; that the effect of the reduction made by the ordinance would For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |