ed. 1036, 1038; Barbier v. Connolly, 113 | tiffs did not contradict this, but demurred U. S. 27, 30, 28 L. ed. 923, 924, 5 Sup. Ct. to the answer as insufficient in law, and Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 708, 28 L. ed. 1145, 1146, 5 Sup. Ct. Rep. 730; Lawton v. Steele, 152 U. S. 133, 136, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499; Gundling v. Chicago, 177 U. S. 183, 188, 44 L. ed. 725, 728, 20 Sup. Ct. Rep. 633; Williams v. Arkansas, 217 U. S. 79, 87, 54 L. ed. 673, 676, 30 Sup. Ct. Rep. 493, 18 Ann. Cas. 865; Cronin v. People, 82 N. Y. 318, 321, 37 Am. Rep. 564; Re Wilson, 32 Minn. 145, 148, 19 N. W. 723; St. Louis v. Russell, 116 Mo. 248, 253, 20 L.R.A. 721, 22 S. W. 470. The only debatable question arises from the contention that under the particular circumstances alleged in the complaint, viz., that plaintiffs in error have conducted the livery stable business for a long time in the same location, and at large expense for permanent structures, and the removal to another location would be very costly, and since (as the complaint alleges) their stables are in all respects properly conducted, this particular ordinance must be deemed an unreasonable and arbitrary exercise of the power of regulation. But these averments of fact are contradicted by the answer, and so we are confronted with the question: Upon what basis of fact is this matter to be determined? Plaintiffs in error insist that it is to be [178] decided upon the basis of the averments contained in their complaint, because the supreme court ordered the complaint to be dismissed for want of equity. But it seems that in the practice of the courts of Arkansas, as elsewhere, the expression "dismissed for want of equity" is employed to indicate a decision upon the merits, as distinguished from one based upon a formal defect or default; and that it applies as well where on final hearing it is found that the averments of the complaint are not true in fact, as where those averments do not upon their face show a sufficient basis of fact for the granting of the relief sought. Meux v. Anthony, 11 Ark. 411, 422, 424, 52 Am. Dec. 274; Smith v. Carrigan, 23 Ark. 555; McRae v. Rogers, 30 Ark. 272. the cause was heard in the trial court upon the complaint and exhibits, the answer, and the demurrer. The demurrer being sustained, and defendants declining to plead further, a perpetual restraining order followed in due course. Upon the removal of the cause to the supreme court on defendants' appeal, it was heard there, as appears from the decree rendered by that court, "upon the transcript of the record of the chancery court of Pulaski county." That record includes not only the complaint, but the answer and demurrer. The supreme court in its opinion made no statement of the facts upon which it proceeded [179] to judgment, and did not intimate that it ig nored the effect of the answer and confined itself to the averments of the bill alone. It is true that broad reasoning was employed; but, upon familiar principles, the opinion is to be interpreted in the light of the issue as framed by the pleadings. Besides, the petition for rehearing especially set up that the effect of the ruling of the supreme court was to deprive plaintiffs of the opportunity of presenting evidence to sustain those allegations of the complaint that were denied by the answer, that unless they were given an opportunity to introduce evidence the answer might be taken as conclusive against them, and that the cause ought to have been remanded to take evidence, etc. The fact that the supreme court denied the rehearing without giving reasons is at least consistent with the theory that plaintiffs had properly interpreted the meaning of the decree as entered, and that it correctly expressed the intent and the purpose of the court. By 25 of the judiciary act of 1789 (1 Stat. at L. 86, chap. 20) it was provided: "No other error shall be assigned or regarded as a ground of reversal . . than such as appears on the face of the record.” Under this act, it was uniformly held that in reviewing the judgments of state courts (in states other than Louisiana, where the opinion formed a part of the record), this court could not look into the opinion to Upon the face of this record it appears ascertain what was decided. In the amendthat all the material averments of the bill atory act of February 5, 1867 (14 Stat. were denied by the answer, and that the at L. 386, chap. 28, § 2), the words above latter pleading also showed particular rea- quoted were omitted, and because of this sons why it was proper for the city council it has since been held that this court is not to prohibit the further maintenance of liv- so closely restricted as before to the face ery stables within the limited district de- of the record to ascertain what was described in the ordinance. It was averred cided in the state court, and may examine that that district is in a densely populated the opinion, when properly authenticated, and busy part of the city of Little Rock, so far as may be useful in determining that and that the stables are conducted in a question. This is recognized in 2 of our careless manner, with offensive odors, and 8th rule. "But, after all," said Mr. Jus so as to be productive of disease. Plain- tice Miller, speaking for the court in Mur dock v. Memphis, 20 Wall. 590, 633, 634, 22 L. ed. 429, 443, 444, [180] "the record of the case, its pleadings, bills of exceptions, judgment, evidence,—in short, its record, whether it be a case in law or equity,-must be the chief foundation of the inquiry; and while we are not prepared to fix any absolute limit to the sources of the inquiry under the new act, we feel quite sure it was not intended to open the scope of it to any loose range of investigation." If the record, including the opinion, leaves it a matter of doubtful inference upon what basis of fact the state court rested its decision of the Federal question, it seems to us very plain, upon general principles, that we ought to assume, so far as the state of the record permits, that it adopted such a basis of fact as would most clearly sustain its judgment. Hence, in the present case, we ought to and do assume that the Arkansas Supreme Court acted upon the basis of the facts set up in the answer of the city, treating them as sufficiently substantiated by the effect of the demurrer in admitting them to be true so far as properly pleaded. This being so there is, as we have already remarked, no reasonable question of the validity of the ordinance, and the judgment of the Supreme Court is affirmed. JOE MALLOY, Plff. in Err., v. STATE OF SOUTH CAROLINA. (See S. C. Reporter's ed. 180-185.) Constitutional law ex post facto laws changing punishment for crime. The change in the punishment for murder, made by S. C. act Feb. 17, 1912, from death by hanging within the county jail or its inclosure, in the presence of specified witnesses, to electrocution within the penitentiary, in the presence of an increased number of invited witnesses, does not render the statute repugnant to U. S. Const. art. 1, § 10, as being ex post facto when applied to crimes previously committed. [For other cases, see Constitutional Law, 986 992, in Digest Sup. Ct. 1908.] [No. 172.] N ERROR to the Supreme Court of the State of South Carolina to review a judgment which affirmed a conviction of murder, had in the Court of General Sessions of Marlboro County in that state. Affirmed. See same case below, 95 S. C. 441, 78 S. E. 995. The facts are stated in the opinion. Mr. Charles L. Prince argued the cause, and, with Mr. W. F. Stevenson, filed a brief for plaintiff in error: offense committed before its passage is ex A law changing the punishment for an post facto and void under the Federal Constitution, unless the change consists in the remission of some separable portion of the punishment before prescribed, or it is referable to prison discipline or penal administration as its primary object. Hartung v. People, 22 N. Y. 95; Shepherd 29 N. Y. 124; Kuckler v. People, 5 Park. v. People, 25 N. Y. 406; Ratzky v. People, Crim. Rep. 212; Kring v. Missouri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443; Keith, 63 N. C. 140; Murphy v. Com. 172 Green v. Shumway, 39 N. Y. 418; State v. Mass. 264, 43 L.R.A. 159, 70 Am. St. Rep. 280, 52 N. E. 445; Calder v. Bull, 3 Dall. 386, 1 L. ed. 648; Cummings v. Missouri, 4 Wall. 277, 18 L. ed. 356; Ex parte Garland, 4 Wall. 333, 18 L. ed. 366; Re Medley, 134 U. S. 160, 33 L. ed. 835, 10 Sup. Ct. Rep. 384; Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620; People v. Nolan, 115 N. Y. 660, 21 N. E. 1060; Garvey v. People, 6 Colo. 559, 45 Am. St. Rep. 531; Lindzey v. State, 65 Miss. 542, 7 Am. St. Rep. 674, 5 So. 99; Fletcher v. Peck, 6 Cranch, 138, 3 L. ed. 178; Carter v. Burt, 12 Allen, 424; People v. Hayes, 140 N. Y. 484, 23 L.R.A. 830, 37 Am. St. Rep. 572, 35 N. E. 951; United States v. London, 176 Fed. 976; McElvaine v. Brush, 142 U. S. 155, 35 L. ed. 971, 12 Sup. Ct. Rep. 156; Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Anderson v. O'Donnell, 29 S. C. 355, 1 L.R.A. 632, 13 Am. St. Rep. 728, 7 S. E. 523; State v. Cooler, 30 S. C. 105, 3 L.R.A. 181, 8 S. E. 692; State v. Richardson, 47 S. C. 166, 35 L.R.A. 238, 25 S. E. 220; State v. Loftis, 49 S. C. 443, 27 S. E. 451; Holden v. Minne Argued March 5, 1915. Decided April 5, sota, 137 U. S. 483, 34 L. ed. 734, 11 Sup. 1915. NOTE. As to what laws are er post facto -see notes to Anderson v. O'Donnell, 1 L.R.A. 632; State v. Cooler, 3 L.R.A. 181; Calder v. Bull, 1 L. ed. U. S. 648: Sturges v. Crowninshield, 4 L. ed. U. S. 529; Re Medley, 33 L. ed. U. S. 835; Otoe County v. Baldwin, 28 L. ed. U. S. 331; and Barnitz v. Beverly, 41 L. ed. U. S. 94. Ct. Rep. 143; Rooney v. North Dakota, 196 U. S. 326, 49 L. ed. 497, 25 Sup. Ct. Rep. 264, 3 Ann. Cas. 76. Mr. F. H. Dominick argued the cause, and Mr. Thomas H. Peeples, Attorney General of South Carolina, filed a brief for defendant in error: Any statute which mitigates the rigor of the law in force at the time a crime was committed cannot be regarded as ex post facto with reference to that crime. Rooney v. North Dakota, 196 U. S. 319, 49 L. ed. 494, 25 Sup. Ct. Rep. 264, 3 Ann. Cas. 76; Calder v. Bull, 3 Dall. 386, 1 L. ed. 648; Story, Const. 1345; Cooley, Const. Lim. 267; Com. v. Gardner, 11 Gray, 443; 1 Bishop, Crim. Law, 280; Kring v. Missouri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443; Holden v. Minnesota, 137 U. S. 483, 34 L. ed. 734, 11 Sup. Ct. Rep. 143. Electrocution is a more humane method of punishment than that by hanging. Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; 9 Enc. Britannica, 11th ed. 210. Mr. Justice McReynolds delivered the opinion of the court: At the summer term, 1912, court of general sessions, Marlboro county, South Carolina, Joe Malloy was found guilty without a recommendation to mercy under an indictment charging him with the murder of Moore, November 24, 1910, and sentenced to death by electrocution in conformity to the act of the legislature approved February 17, 1912 (S. C. Stat. at L. 1912, p. 702), [182] the pertinent portions of which are in the margin. 1 The judgment was affirmed by the supreme court of the state (95 S. C. 441, 78 S. E. 995); the cause is here by writ of error; and a reversal is asked solely upon the ground that the enact ment of 1912 materially changed the punishment for murder, and therefore in respect of Malloy's offense is [183] ex post facto and in contravention of art. 1, § 10, of the Federal Constitution. Under the South Carolina laws effective when the crime was committed the punishment for one found guilty of murder without recomendation to mercy was death by hanging within the county jail, or its inclosure, in the presence of specified witnesses. The subsequent act prescribed electrocution as the method of producing death instead of hanging, fixed the place therefor within the penitentiary, and permitted the presence of more invited witnesses than had theretofore been allowed. In response to the meticulous objection based upon change of place for execution and increased number of witnesses it suffices to refer to what this court said through Mr. Justice Harlan in Holden v. Minnesota, 137 U. S. 483, 491, 34 L. ed. 734, 736, 11 Sup. Ct. Rep. 143, and Rooney v. North Dakota, 196 U. S. 319, 325, 326, 49 L. ed. 494, 496, 497, 25 Sup. Ct. Rep. 264, 3 Ann. Cas. 76. The constitutional inhibition of ex post facto laws was intended to secure substantial personal rights against arbitrary and oppressive legislative action, and not to obstruct mere alteration in conditions deemed necessary for the orderly infliction of humane punishment. The contention in behalf of plaintiff in error most earnestly relied on is this: Any statute enacted subsequent to the commission of a crime which undertakes to change the punishment therefor is ex post facto and unconstitutional unless it distinctly modifies the severity of the former penalty. "The courts cannot and will not undertake to say whether or not a change from hanging to electrocution is an increase or mitigation of punishment;" and therefore the 1 An Act to Prescribe the Method of Capital | person to death according to the provisions Punishment in South Carolina. of this act, and to make such sentence in writing, which shall be filed with the papers Sec. 1. Be it enacted by the general as- in the case against such convicted person, sembly of the state of South Carolina, that and a certified copy thereof shall be transafter the approval of this act by the gov-mitted by the clerk of the court of general ernor all persons convicted of capital crime and have imposed upon them the sentence of death shall suffer such penalty by electrocution within the walls of the state penitentiary, at Columbia, under the direction of the superintendent of the penitentiary instead of by hanging. Sec. 2. The board of directors of the state penitentiary are authorized and required to provide a death chamber and all necessary appliances for inflicting such penalty by electrocution and pay the costs thereof out of any funds in their hands. The expense of transporting any such criminal to the state penitentiary shall be borne by the county in which the offense was committed. Sec. 3. Upon the conviction of any person in this state of a crime, the punishment of which is death, it shall be the duty of the presiding judge to sentence such convicted sessions in which said sentence is pronounced to the superintendent of the state penitentiary, at Columbia.. Sec. 4. At such execution there shall be present the executioner and at least two assistants, the penitentiary surgeon and one other surgeon, if the condemned person so desires, an electrician, the condemned person's counsel and relatives, if they so desire, ministers of the gospel, not exceeding three, if they so desire, and not less than twelve nor more than twenty-four respectable citizens of this state to be designated by the executioner. Sec. 5. Sec. 6. Sec. 7. That all acts or parts of acts inconsistent with this act are hereby repealed. Approved the 17th day of February, A. D. 1912. act of 1912 cannot apply in the circumstances presented here. Hartung v. People, 22 N. Y. 95. The often-quoted opinion of Mr. Justice Chase in Calder v. Bull, 3 Dall. 386, 390, 391, 1 L. ed. 648, 650, summarizes ex post facto laws within the intendment of the Constitution thus: "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, [184] criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive." Further expounding the subject, he adds: "But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or increase the punishment, or change the rules of evidence, for the purpose of conviction." And to the general doctrine thus announced this court has continued to adhere. In Mallett v. North Carolina, 181 U. S. 589, 597, 45 L. ed. 1015, 1019, 21 Sup. Ct. Rep. 730, 15 Am. Crim. Rep. 241, Mr. Justice Shiras, speaking for the court, after reviewing former opinions, applied the established principles and concluded that the impeached legislation was not ex post facto, since it "did not make that a criminal act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence, and require less or different evidence than the law required at the time of the commission of the offense; and did not deprive the accused of any substantial right or immunity possessed by them at the time of the commission of the offense charged." Considering the above-stated settled doctrine and well-known facts of which judicial notice is taken, we think the validity of the impeached act is clear. Impressed with the serious objection to executions by hanging, and hopeful that means might be found for taking life "in a less barbarous manner," the governor of New York brought the subject to the attention of the legislature [185] in 1885. A commission thereafter appointed to ascertain the most humane and practical method of inflicting the death sentence reported in favor of electrocution. This was adopted by the statute of 1888, and, with the approv al of the courts, has been in continuous use since that time. Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930, 119 N. Y. 569, 7 L.R.A. 715, 16 Am. St. Rep. 859, 24 N. E. 6. Influenced by the results in New York, eleven other states 2 have adopted the same mode for inflicting death in capital cases; and, as is commonly known, this result is the consequent of a well grounded belief than electrocution is less painful and more humane than hanging. Storti v. Com. 178 Mass. 549, 553, 52 L.R.A. 520, 60 N. E. 210; State v. Tomassi, 75 N. J. L. 739, 747, 69 Atl. 214. The statute under consideration did not change the penalty-death-for murder, but only the mode of producing this, together with certain nonessential details in respect of surroundings. The punishment was not increased, and some of the odious features incident to the old method were abated. In Hartung v. People, supra, the court had under consideration and condemned an act of the legislature which made a distinct addition to the penalty prescribed when the crime was committed; and the conclusion therein is not properly applicable in the circumstances of the present cause, where there has been no such change. The judgment of the court below is af firmed. (See S. C. Reporter's ed. 186-189.) Bankruptcy effect lien or attachment failure to file chattel mortgage. 1. The bankrupt act as it existed in February, 1903, did not operate as an atitself create a lien in favor of creditors who tachment of the bankrupt's property nor became such after the giving of a chattel 2 Ohio, 1896; Massachusetts, 1898; New Jersey, 1907: Virginia, 1908; North Caroina, 1909; Kentucky, 1910; South Carolina, 1912; Arkansas, Indiana, Pennsylvania, and Nebraska, 1913. NOTE.-As to relation of bankrupt law to assignments and insolvent proceedings under state laws--see note to State ex rel. Strohl v. Superior Ct. 45 L.R.A. 178. On necessity for filing chattel mortgagesee note to Herryford v. Davis, 26 L. ed. U. S. 160. mortgage by the bankrupt and before the 2. A lien upon the property covered by an unfiled chattel mortgage was not created in favor of creditors of the mortgagor who became such after the giving and before the filing of such mortgage, by Mich. Comp. Laws 1897, § 9523, under which every unfiled chattel mortgage which shall not be accompanied by an immediate delivery and followed by an actual and continued change of possession shall be absolutely void agains the creditors of the mortgagor, but such statute gives merely a right to a lien requiring a proceeding of some kind for its fastening. [For other cases, see Chattel Mortgage, III., in Digest Sup. Ct. 1908.] Bankruptcy lien rights of trustee of assignee for creditors. 3. The mere fact that the assignee under a statutory assignment for the benefit of creditors is given a lien upon the propety which did not before exist does not give such a lien to a trustee in bankruptcy. For other cases, see Bankruptcy, VII., in Digest Sup. Ct. 1908.] [No. 173.] Argued and submitted March 5, 1915. cided April 5, 1915. ton, 158 U. S. 423, 39 L. ed. 1040, 15 Sup Ct. Rep. 868; Dempsey v. Pforzheimer, 86 Mich. 652, 13 L.R.A. 388, 49 N. W. 465; Kennedy v. Dawson, 96 Mich. 79, 55 N. W. 616; Lord v. Wirt, 96 Mich. 415, 56 N. W. 7; Vining v. Millar, 116 Mich. 144, 74 N. W. 459; Heineman v. Schloss, 83 Mich. 153, 47 N. W. 107; Baker v. Parkhurst, 119 Mich. 542, 78 N. W. 643. Any necessity for having a lien upon the property or its proceeds is merely a matter of remedy, and not of right. Skilton v. Codington, 185 N. Y. 80, 113 Am. St. Rep. 885, 77 N. E. 790; Knapp v. Milwaukee Trust Co. 216 U. S. 545, 54 L. ed. 610, 30 Sup. Ct. Rep. 412; Security Warehousing Co. v. Hand, 206 U. S. 415, 51 L. ed. 1117, 27 Sup. Ct. Rep. 720, 11 Ann. Cas. 789; Re Beckhaus, 100 C. C. A. 561, 177 Fed. 141; Re Gerstman, 85 C. C. A. 211, 157 Fed. 549; Re Standard Teleph. & Electric Co. 157 Fed. 106. It is clear from the Michigan authorities that had not bankruptcy proceedings been brought, the creditors who extended credit while the mortgage was off the file might have sued Coates and brought garnishment against the Pontiac Savings Bank and recovered. Or, had they chosen to do so, they De-could have taken judgments against Coates, had executions issued and returned unsatisfied, and thereupon filed creditors' bills and PPEAL from the United States Circuit had a receiver appointed for Coates, which Court of Appeals for the Sixth Circuit | action, under all the authorities, would to review a decree which, reversing a decree have given an equitable lien upon any propof the District Court for the Eastern Dis-erty transferred by him under an instrutrict of Michigan, directed the dismissal of ment void as to such creditors. the complaint in a suit by a trustee in bankruptcy to recover from a chattel mortgagee of the bankrupt the amount of claims of creditors who became such between the giving and filing of the mortgage. Affirmed. See same case below, 115 C. C. A. 663. 196 Fed. 29. A Metcalf Bros. v. Barker, 187 U. S. 165, 47 L. ed. 122, 23 Sup. Ct. Rep. 67. The adjudication in bankruptcy and the appointment of a trustee by which all of the assets of the debtor are sequestered has the same effect as the obtaining of a judgment and the returning of an execution un Mr. Bernard B. Selling argued the satisfied, so far as the right to file equitable proceedings thereafter is concerned. cause and filed a brief for appellant: Firestone Tire & Rubber Co. v. Agnew, The chattel mortgage given by Coates to 194 N. Y. 165, 24 L.R.A. (N.S.) 628, 86 N. E. the Pontiac Savings Bank was and is absolutely void against all creditors who extend-1116, 16 Ann. Cas. 1150; Skilton v. Codinged credit while the mortgage was unfiled. ton, 185 N. Y. 80, 113 Am. St. Rep. 885, 77 and who had no knowledge of its existence. N. E. 790. Mr. Harrison Geer submitted the cause for appellees. Mr. Elmer R. Webster was on the brief: While the chattel mortgage in question may have been void as to the creditors of Coates, whom the trustee claims to represent in this suit, who claim to have sold goods and extended credit to Coates between the time of the making and the filing of the Fearey v. Cummings, 41 Mich. 376, 1 N. W. 946; Cooper v. Brock, 41 Mich. 488, 2 N. W. 660; Putnam v. Reynolds, 44 Mich. 113, 6 N. W. 198; Wallen v. Rossman, 45 Mich. 333, 7 N. W. 901; Waite v. Mathews. 50 Mich. 392, 15 N. W. 524; Crippen v. Jacobson, 56 Mich. 386, 23 N. W. 56; Root v. Harl, 62 Mich. 420, 29 N. W. 29: Brown v. Brabb, 67 Mich. 17, 11 Am. St. Rep. 549, 34 N. W. 403; Buhl Iron Works v. Teuton.chattel mortgage, assuming that these cred67 Mich. 623, 35 N. W. 804; Cutler v. Steele, 85 Mich. 627, 48 N. W. 631; Cutler v. Hus itors actually did sell goods and extend credit to Coates during that period, still, as |