164 U. S. 612-644

Notes on U. S. Reports.

916

Approved in Lee v. Mehew, 8 Okl. 141, 56 Pac. 1048, bare allegation that board had fraudulently contracted liabilities exceeding 4 per cent. of limit will not justify enjoining tax collectors.

164 U. S. 612–627, 41 L. 572, GONZALES v. CUNNINGHAM. Courts.- Appeal lies from territorial to Supreme Court in habeas corpus, p. 621.

Distinguished in Simms v. Simms, 175 U. S. 166, 20 S. Ct. 60, no appeal lies here from decree of territorial Supreme Court granting or refusing divorce.

Habeas corpus cannot perform office of writ of error, p. 621. Courts. Territorial legislature may provide for holding of court by one justice in absent justice's district, p. 622.

Courts. In New Mexico trial judge may continue Special Term until special proceeding concluded, p. 627.

164 U. S. 627-632, 41 L. 577, STARR v. UNITED STATES. Arrest. Warrant signed "commissioner U. S. Court, Western District of Arkansas," is sufficient, p. 680.

United States commissioner for District Court, acting after creation of Circuit Court, is de facto officer, p. 631.

Criminal law. It is error to charge that flight is always relevant evidence tending to show guilt, p. 632.

Not cited.

164 U. S. 633-635, 41 L. 579, IN RE ATLANTIC CITY R. R. Supreme Court may issue mandamus to lower court to compel It to assume jurisdiction, p. 635.

Approved in State v. Kellogg, 95 Wis. 679, 70 N. W. 302, issuing mandamus to compel board to revoke saloon license.

Supreme Court will not issue mandamus to compel Circuit Court to dismiss bill as against petitioner, p. 635.

Trial.- Objection to jurisdiction is not waived by answering after special demurrer is overruled, p. 635.

Approved in Donahue v. Calumet Fire-Clay Co., 94 Fed. 27, nonresident's answer, after overruling motion to quash service, made on special appearance, does not debar it from removal.

164 U. S. 636-644, 41 L. 580, TEXAS, ETC., RY. v. BLOOM. Railroad is liable to suit, after restoration of property, for injury caused during receivership, p. 640.

Approved in Texas, etc., Ry. v. Gay, 167 U. S. 745, 42 L. 1209, 17 S. Ct. 1000, and Houston, etc., R. R. v. Bowles, 168 U. S. 706, 42 L. 1213, 18 S. Ct. 943, both reaffirming rule; Archambeau v. Platt, 173 Mass. 252, 53 N. E. 817, after receiver has handed over funds

917

Notes on U. S. Reports. 164 U. S. 644-670

and been discharged he cannot be sued for injury occurring during receivership.

164 U. S. 644-649, 41 L. 584, MILLS v. UNITED STATES.

Rape.-Charge that all force that need be exercised is force incident to commission of act, is erroneous, p. 647.

Rape.- Mere non-consent does not constitute rape, unless resistance would be useless, p. 648.

Not cited.

164 U. S. 650-656, 41 L. 586, OSBORNE v. FLORIDA.

Federal courts will follow State court's construction of act imposing license tax on express companies, p. 654.

Commerce power is not infringed by State law imposing license tax on interstate express company, p. 656.

Approved in State v. Wagener, 77 Minn. 501, 77 Am. St. Rep. 690, 80 N. W. 637, upholding act defining and regulating business of selling agricultural products on commission; Railroad v. Harris, 99 Tenn. 712, 43 S. W. 122, upholding privilege tax on railroad's mileage in State; Ogden City v. Crossman, 17 Utah, 76, 53 Pac. 988, ordinance levying license fee of $5 for telephone used exclusively in city is valid; dissenting opinions in Adams Exp. Co. v. Ohio, 165 U. S. 251, 41 L. 706, 17 S. Ct. 321, arguendo; Lake Shore, etc., Ry. v. Ohio, 173 U. S. 337, 19 S. Ct. 485, majority upholding act requiring trains to stop at towns of certain size.

Supreme Court cannot declare State tax law void on ground that it is not sufficiently definite, p. 656.

164 U. S. 657-662, 41 L. 588, NOFIRE v. UNITED STATES. Marriage license carries with it presumption of compliance with statutory prerequisite, p. 660.

Cited in Ford v. Delta, etc., Land Co., 164 U. S. 673, 41 L. 594, 17 S. Ct. 234, arguendo.

Officers. One acting in office with consent of officer and deputy is de facto officer, p. 661.

Indians. One taking what he believes to be all necessary steps to become citizen of nation is such within statute as to jurisdiction of Indian courts, p. 662.

Approved in Raymond v. Raymond, 83 Fed. 723, 55 U. S. App. 94, marriage and adoption into Indian tribe ousts Federal courts of jurisdiction over party.

164 U. S. 662-676, 41 L. 590, FORD v. DELTA, ETC., LAND CO. Taxation. Exemption will not be presumed, p. 666.

Approved in Railroad v. Harris, 99 Tenn. 696, 43 S. W. 117, imposition of privilege tax is not invalid as an attempt to deprive

164 U. S. 676-686 Notes on U. S. Reports.

918

company of benefit of exemption from ad valorem tax; Western Union Tel. Co. v. Harris, Tenn. Ch. App. -, 52 S. W. 753, payment of statutory privilege tax does not create contract exempting company from imposition of additional privilege tax in same year. Distinguished in McHenry v. Alford, 168 U. S. 662, 42 L. 618, 18 S. Ct. 247, Dakota laws of 1883, providing for taxation of Northern Pacific lands, exempted property owned by company and not leased.

Taxation.— General exemption of corporate property refers only to property necessary to business of corporation, p. 667.

Taxation.- Exemption does not release from liability to assessment for local improvements, p. 671.

Approved in Railroad v. Harris, 99 Tenn. 701, 43 S. W. 119, exemption from ad valorem does not bar imposition of privilege tax. Tax deed, reciting sale for "all State and county taxes," is not evidence of payment of levee taxes, p. 674.

Statutes. Punctuation is not decisive of meaning, p. 674. Federal courts will follow State court's construction of legislative contract, p. 675.

164 U. S. 676-683, 41 L. 595, FRANCE v. UNITED STATES. Criminal law.- Court must refuse to instruct to acquit where evidence, if believed, would sustain conviction, p. 681.

Lotteries.- Paper containing only figures relating to completed drawing is not within act of March 2, 1895, p. 682.

Statute highly penal will be strictly construed, p. 683.
Not cited.

164 U. S. 684-686, 41 L. 598, BUSHNELL v. LELAND.
Banks.- Comptroller may appoint receiver and call for assess-
ment without judicial determination of necessity, p. 685.

Approved in McCormick v. Market Bank, 165 U. S. 548, 41 L 821, 17 S. Ct. 436, In re Chetwood, 165 U. S. 458, 41 L. 787, 17 S. Ct. 391, and Church v. Ayer, 80 Fed. 543, all reaffirming rule; Columbia Nat. Bank v. Mathews, 85 Fed. 939, 940, 56 U. S. App. 649, 650, and Tillinghast v. Bailey, 86 Fed. 47, comptroller's certificate, approving increase of national bank's capital stock, is conclusive of existence of facts authorizing same; Wallace v. Hood, 89 Fed. 21, stockholder by purchase cannot defend against assessment on ground that original capital stock was never put in; Foster v. Row, 120 Mich. 7, 79 N. W. 698, under Michigan bank statutes court ap pointing receiver can determine ex parte necessity for enforcing Individual liability.

919

Notes on U. S. Reports.

164 U. S. 686-703

164 U. S. 686-691, 41 L. 599, UNITED STATES v. NORTHWESTERN, ETC., TRANSP. CO.

44

citi

Indians.- Corporation of State is embraced in designation zens in act of 1891, concerning depredation claims, p. 687. Approved in Cæsar v. Capell, 83 Fed. 426, and Ashley v. Quintard, 90 Fed. 87, corporation can have but one domicile as far as suits in Federal courts are concerned; Hammond Beef, etc., Co. v. Best, 91 Me. 438, 40 Atl. 341, 42 L. R. A. 531, corporations are “persons' within protection of fourteenth amendment.

164 U. S. 691-694, 41 L. 601, EX PARTE JONES.

Circuit Court of Appeals' decision in suit against national bank is final where Circuit Court's jurisdiction depends on citizenship, p. 693.

Circuit Court of Appeals' decision is final where diverse citizenship was basis, regardless of other ground, p. 693.

Approved in Third St., etc., Ry. v. Lewis, 173 U. S. 460, 19 S. Ct. 453, Federal courts have no jurisdiction of suits as involving Federal question unless same appears from plaintiff's statement; Pope v. Louisville, etc., Ry., 173 U. S. 578, 19 S. Ct. 502, reaffirming rule.

164 U. S. 694-699, 41 L. 602, CARVER v. UNITED STATES. Homicide. Evidence that deceased had received extreme unction is admissible with proof of dying declaration, p. 695.

Evidence. Where one party has put conversation in evidence other may explain, vary or contradict it, p. 697.

Reaffirmed in Stevenson v. United States, 86 Fed. 111, 52 U. S. App. 659; State v. O'Shea, 60 Kan. 780, 57 Pac. 973, dying declarations may be discredited by proof that deceased at time was in reckless, irreverent state of mind.

Homicide. It is error to exclude evidence of statements contradicting dying declaration already in evidence, p. 697.

164 U. S. 701, 41 L. 1180, TUCKER v. MCKAY.

Cited in Blythe Co. v. Blythe, 172 U. S. 644, 19 S. Ct. 873.

164 U. S. 701, 41 L. 1181, UNITED STATES v. LOCHREN.
Cited in Warner Valley Stock Co. v. Smith, 165 U. S. 31, United
States v. Butterworth, 169 U. S. 604, 42 L. 874, 18 S. Ct. 442, and
Lansing v. Hesing, 81 Fed. 242, 53 U. S. App. 290.

164 U. S. 703, 41 L. 1182, UNITED STATES v. KING.

Cited in United States v. Harsha, 172 U. S. 570, 19 S. Ct. 295.

164 U. S. 704-706

Notes on U. S. Reports.

920

164 U. S. 704, 41 L. 1183, CREMER v. WASHINGTON. Cited in Cræmer v. Washington, 168 U. S. 128, 42 L. 408, 18 S. Ct. 2.

164 U. S. 705, 41 L. 1183, NORDSTROM v. WASHINGTON.

Cited in Durrant v. Hale, 168 U. S. 705, 42 L. 1213, 18 S. Ct. 942, and Nordstrom v. Moyer, 170 U. S. 704, 42 L. 1218, 18 S. Ct. 944.

164 U. S. 706, 41 L. 1180, WALKER v. KEENAN.

Cited in Bosworth v. Chicago, etc., Ry., 87 Fed. 89, 56 U. § App. 304