CASES ARGUED AND DETERMINED IN THE UNITED STATES SUPREME COURT. OCTOBER TERM, 1916. (242 U. S. 1) INTER-ISLAND STEAM NAVIGATION V. GEORGE E. WARD. COURTS 387(1) ERROR TO CIRCUIT favor of plaintiff in a personal-injury ac- Mr. Chief Justice White delivered the opinion of the court: On writ of error prosecuted from the court below to a judgment of the supreme court of Hawaii, rendered in a case where. there was no Federal question and no diversity of citizenship, the judgment was affirmed and the case was brought here. By a motion to dismiss, our jurisdiction is disputed, and to dispose of it requires a consideration of § 246 of the Judicial Code, as amended by the act of January 28, 1915 (38 Stat. at L. 803, chap. 22). The change in the provisions of the Judicial Code, § 246,1 specifically governing appeals from, and writs of error to, the Hawaiian supreme court which is made by the amendatory act of January 28, 1915 (38 Stat. at L. 803, chap. 22), taking from the Federal Supreme Court its existing jurisdiction to review any judgment of the Hawaiian supreme court if the amount involved exceeds a certain sum, and conferring such jurisdiction upon the circuit court of appeals for the circuit to which Hawaii belongs, compels the conclusion that the Federal Supreme Court may not, by virtue of the general provisions of the Judicial Code, 241,2 governing the appellate jurisdiction of that court over the circuit courts of ap: "writs of error and appeals from the final That amendment provides, first, that peals, review a final decision of the circuit court of appeals on writ of error to the judgments and decrees of the supreme court Hawaiian supreme court in a case in which of the territory of Hawaii and of the suthere was no Federal question and no diver-preme court of Porto Rico may be taken and sity of citizenship. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 1033-1036; Dec. Dig. 387(1).] [No. 638.] prosecuted to the Supreme Court of the United States . . in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of a state in which a decision Submitted October 9, 1916. Decided October in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States ." And this is im 30, 1916. IN ERROR to the United States Circuit mediately followed by a provision giving out review to review a judgment which affirmed a judgment of the Supreme Court of the territory of Hawaii, affirming on a second writ of er ror a judgment of the Circuit Court of the First Judicial Circuit of that territory, in For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 37 S. C.-1. Comp. St. 1913, § 1218. "in all other cases, civil or criminal, in the supreme court of the territory of Hawaii or the supreme court of Porto Rico." The next and separate sentence which follows these provisions and which concludes the amend 1 Comp. St. 1913, § 1223. ment is this: "Writs of error and appeals | the terms of the amendatory act of 1915. from the final judgments and decrees of the This is plain when it is considered that the supreme courts of the territory of Hawaii two classes of cases enumerated in the and of Porto Rico, wherein the amount in- amendment of 1915 were practically in volved, exclusive of costs, exceeds the same terms expressed in the prior acts, the value of $5,000, may be taken and pros- which conferred reviewing jurisdiction in ecuted in the circuit courts of appeals." both classes exclusively upon this court, and that the only substantial change made by the amendatory act was to take from this court the jurisdiction to review in the second enumerated class and confer it upon the circuit court of appeals to which Hawaii belonged. And, indeed, there is nothing in the context of the statute which countenances the view that the statute intended to merely take away the jurisdiction of this court in one class of cases, and, at the same time, to restore jurisdiction as to the same class by means of a power conferred or contemplated to exist to review on error or appeal the judgments and decrees of the circuit court of appeals. Besides, as the remedy intended to be afforded by the amendment of 1915 was evidently the restricting of the jurisdiction of this court, to the end that the burden on its docket might be lightened, we cannot construe that amendment as frustrating the purpose which it was adopted to accomplish. American Secur. & T. Co. v. District of Columbia, 224 U. S. 491, 495, 56 L. ed. 856, 857, 32 Sup. Ct. Rep. 553. The argument supporting jurisdiction is that as, by the general provisions of the judiciary act of 1891 [26 Stat. at L. 828, chap. 517], now embraced in § 241 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1218], power exists in this court to review by error or appeal the final decisions of the circuit courts of appeals in all cases where the jurisdiction of the trial court did not depend upon diversity of citizenship, or where the case was not otherwise by provisions of law expressly made final in the circuit courts of appeals, therefore power to review exists, since this case is not in one of the excepted classes. But the contention overlooks the fact that from the beginning and continuously up to the adoption of the amendment of 1915, appeals and writs of error to the supreme courts of Hawaii and of Porto Rico were not left to be controlled by the law generally applicable to courts of the United States, as expressed in the judiciary act of 1891, or as found in the provisions of the Judicial Code, re-adopting that act, but were governed by special provisions controlling the subject, a purpose which is exemplified by Dismissed for want of jurisdiction. (242 U. S. 7) PORTUGUESE-AMERICAN BANK OF V. 389, 215 Fed. 81. The subject-matter is the fourth progress payment, which, on December 5, 1910, had been authorized by the PAUL I. WELLES, John Daniel, Trustee of board of public works of the city. On that Metropolis Construction Company, Bank-day the Construction Company applied to rupt, and Thomas F. Boyle. CORPORATIONS ~373(1) ASSIGNMENT-BY PUBLIC CONVALIDITY AS AGAINST SUBCONTRACTOR-PROGRESS PAYMENT. TRACTOR An assignment of a progress payment for work done under a contract for a public improvement is valid-the municipality not objecting as against any rights of a subcontractor who thereafter served notice on the municipality to withhold payment. as permitted by Cal. Code, Civ. Proc. § 1184, although such assignment did not receive the consent of the board of public works, and the contract expressly provided that without such consent the contractor shall not "either legally or equitably assign any of the moneys payable under the contract or his claim thereto." the appellant bank for a loan of $30,000, secured by an order on the auditor of the city, authorizing the bank to draw from the city for the above and other amounts not in controversy here. The bank declined until the order should be accepted by the auditor, whereupon, on the next day, the order was presented to the auditor's office and stamped as received on December 6. The order was intended and taken as an assignment, and, after it had been stamped, was accepted by the bank as security and the money was advanced. The next day $5,000 more was advanced on the same security, notes being given for each sum. The appellee Welles was a subcontractor, and on December 12 and 16 served Cor-notice on the city to withhold payment, as 373 (1).1 permitted by § 1184 of the Code of Civil Procedure of the state of California. It is admitted by Welles that if the assignment was valid, his rights are subordinate to it (Newport Wharf & Lumber Co. v. Drew,, 125 Cal. 585, 58 Pac. 187); and the only question argued on his behalf is whether the terms of the contract between the bankrupt and the city made the assignment void. [Ed. Note.-For other cases, see Municipal porations, Cent. Dig. § 913; Dec. Dig. [No. 45.] Argued October 27, 1916. Decided Novem- A of the District Court for the Northern Dis- See same case below, 128 C. C. A. 161, 211 Fed. 561; on rehearing, 131 C. C. A. 389, 215 Fed. 81. The facts are stated in the opinion. Messrs. William R. Harr, George A. Knight, Charles J. Heggerty, James B. Feehan, and Joseph W. Beretta for appel lant. Messrs. Harold Remington, F. H. Dam, R. T. Devlin, W. H. Devlin, A. F. Morrison, P. F. Dunne, W. I. Brobeck, Milton J. Green, and George J. Hatfield for appellees. The contract provided that the contractor should keep the work under his personal control, and should not assign or sublet the whole or any part thereof without the consent of the board of public works. It further declared that no subcontract should relieve the contractor of any of his obligations, and that he should not, "either legally or equitably, assign any of the moneys payable under the contract or his claim thereto unless with the like consent." The city has made no objection to the assignment to the bank, and the money now awaits the decision of this court as between the claimant of the lien and the prior assignee. There is a logical difficulty in putting another man into the relation of the. covenantee to the covenantor, because the facts Mr. Justice Holmes delivered the opin- that give rise to the obligation are true only ion of the court: This is a suit brought by the appellee Welles to establish a lien upon a debt of $6,830.85, due under a construction contract from the city of San Francisco, represented by the appellee Boyle, to the bankrupt, Metropolis Construction Company. The district court approved the report of the referee against the claim and in favor of the appellant, but this decree was reversed by the circuit court of appeals. 128 C. C. A. 161, 211 Fed. 561; 131 C. C. A. of the covenantee,-a difficulty that has been met by the fiction of identity of person and in other ways not material here. Of course, a covenantor is not to be held beyond his undertaking, and he may make that as narrow as he likes. Arkansas Valley Smelting Co. v. Belden Min. Co. 127 U. S. 379, 32 L. ed. 246, 8 Sup. Ct. Rep. 1308. But when he has incurred a debt, which is property in the hands of the creditor, it is a different thing to say that, as between the creditor and a third person, the debtor can re For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes It is enough to say that we are of opinion that, upon the facts stated, the assignment was not absolutely void, that therefore the bank got a title prior to that of Welles, and consequently that the decree must be reversed. See Hobbs v. McLean, 117 U. S. 567, 29 L. ed. 940, 6 Sup. Ct. Rep. 870; Burnett v. Jersey City, 31 N. J. Eq. 341; Fortunato v. Patten, 147 N. Y. 277, 41 N. E. 572. Decree reversed. strain his alienation of that, although he against assignment is inserted only for the could not forbid the sale or pledge of other benefit of the city. Whether that form of chattels. When a man sells a horse, what expression is accurate or merely is an inhe does, from the point of view of the law, i direct recognition of the principle that we is to transfer a right, and a right being re- | have stated hardly is material here. garded by the law as a thing, even though a res incorporalis, it is not illogical to apply the same rule to a debt that would be applied to a horse. It is not illogical to say that the debt is as liable to sale as it is to the acquisition of a lien. To be sure, the lien is allowed by a statute subject to which the contract was made, but the contract was made subject also to the common law, and if the common law applies the principle recognized by the statute of California that a debt is to be regarded as a thing, and therefore subjects it to the ordinary rules in determining the relative rights of an assignee and the claimant of a lien, it does nothing of which the debtor can complain. See further, Cal. Civ. Code, $$ 954, 711. The debtor does not complain, but stands indifferent, willing that the common law should take its course. Mr. Justice McKenna dissents for the reasons stated by the circuit court of appeals. (242 U. S. 13) LOUISVILLE & NASHVILLE RAILROAD V. NATHAN PARKER, as Administrator of the Estate of Edward Parker. ITY WHEN SERVANT IS ENGAGED IN "INTERSTATE COMMERCE." 1. A railway fireman on a switching engine, who was killed by striking a caboose on the main track while his engine was transferring an empty car from one switch track to another, was employed in interstate commerce, although the car was not itself moving in such commerce, if this movement was simply for the purpose of reaching and moving an interstate car. [Ed. Note.-For other cases, see Commerce, Dec. Dig. 27(7). For other definitions, see Words and Phrases, APPEAL AND ERROR 213-QUESTION NOT RAISED BELOW. The circuit court of appeals relied largely upon Burck v. Taylor, 152 U. S. 634, 38 L. ed. 578, 14 Sup. Ct. Rep. 696, some ex-COMMERCE ~27(7) — EMPLOYERS' LIABILpressions in which, at least, seem to warrant the conclusion reached. But that case, as understood by the majority of the court, was quite different from this. A contract for the building of the Capitol of Texas was made not assignable without the consent of the governor and certain others. The contractor assigned an undivided three-fourths interest to Taylor, Babcock, & Company, with the required assent, and then three sixteenths without assent to three others severally, one of whom conveyed one thirty-First and Second Series, Interstate Commerce.] second to the plaintiff. The contractor made another conveyance of all his rights under the contract to Taylor, Babcock, & Company, and Taylor, Babcock, & Company made what purported to be a transfer of the entire contract to Abner Taylor, the defendant. Both of these transfers were as sented to. In the latter, Taylor purported to bind himself to the state to perform the original contract, and, in the assent to the same, the governor and other authorities stated that they recognized Taylor as the contractor, bound as the original contractor was bound. The court held that there was a novation (p. 650), and that Taylor acted without notice of the plaintiff's claim (p. 653). Upon those facts it would be hard to make out any right of the plaintiff to proceeds of the new contract that Taylor had performed. The assignability of a debt incurred under a contract like the present sometimes is sustained on the ground that the provision 2. A judgment against a railway company, in favor of the administrator of a deceased employee, will not be reversed because of the erroneous assumption below that a railway fireman, who was killed by his engine was transferring from one switch striking a caboose on the main track while track to another, for the ulterior purpose of interstate commerce, an empty car, not itself moving in interstate commerce, was not engaged in such commerce, although it is admitted that there could be no recov ery For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |