consent under our Constitution, we think that on the question, whether this treaty ever been terminated, governmental action in respect to it must be regarded as of controlling importance." has logic or law, regard ourselves as free from, the obligation of surrendering our citizens, we laboring under no such legal inhibition regarding surrender as operates against the government of Italy. Therefore, since extradition treaties need not be reciprocal, even in the matter of the surrendering of citizens, it would seem entirely sound to consider ourselves as bound to surrender our citizens to Italy, even though Italy should not, by reason of the provisions of her municipal law, be able to surrender its citi That the political branch of the government recognizes the treaty obligation as still existing is evidenced by its action in this case. In the memorandum giving the reasons 475] *of the Department of State for determining to surrender the appellant, after stating the difference between the two gov-zens to us." ernments as to the interpretation of this clause of the treaty, Mr. Secretary Knox said: "The question is now for the first time presented as to whether or not the United States is under obligation under treaty to surrender to Italy for trial and punishment citizens of the United States fugitive from the justice of Italy, notwithstanding the interpretation placed upon the treaty by Italy with reference to Italian subjects. In this connection it should be observed that the United States, although as stated above, consistently contending that the Italian interpretation was not the proper one, has not treated the Italian practice as a breach of the treaty obligation necessarily requiring abrogation, has not abrogated the treaty, or taken any step looking thereto, and has, on the contrary, constantly regarded the treaty as in full force and effect, and has answered the obligations imposed thereby, and has invoked the rights therein granted. It should, moreover, be observed that even though the action of the Italian government be regarded as a breach of the treaty, the treaty is binding until abrogated, and therefore the treaty not having been abrogated, its provisions are operative against us. "The question would therefore appear to reduce itself to one of interpretation of the meaning of the treaty, the government of the United States being now for the first time called upon to declare whether it regards the treaty as obliging it to surrender its citizens to Italy, notwithstanding Italy has not and insists it cannot surrender its The Executive Department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recog nize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land, and as affording authority for the warrant of extradition. Judgment affirmed. (See S. C. Reporter's ed. 476–480.) Appeal - final decree. A decree enjoining a municipality from interfering with the operation of a telephone franchise until such municipality shall put in force an ordinance carrying out a compromise agreement between it and the telephone company, the decree reciting that, it being the intent to give the city the option of permitting the present status to remain, or else to enact the agreed-upon ordinance, the court reserves the right and power to make any orders needful to enforce the injunction, or to meet any emergency that may arise out of an attempt to exercise the option,-is not final for the purpose [For other cases, see Appeal and Error, I. d, of appeal. in Digest Sup. Ct. 1908.] [No. 246.] 1913. citizens to us. It should be observed, in Argued April 22, 1913. Decided June 10, the first place, that we have always insisted not only with reference to the Italian PPEAL from the Circuit Court of the extradition treaty, but with reference to A United States for the Western District the other extradition treaties similarly a municipality from interfering with the operation of a telephone franchise until such municipality shall put in force an or phrased, that the word 'persons' includes of Kentucky to review a decree enjoining citizens. We are therefore committed to that 476] interpretation. The fact that we have for reasons already given ceased generally to make requisition upon the government of Italy for the surrender of Italian subjects under the treaty would not require of necessity that we should, as a matter of NOTE-As to final judgments for purposes of review-see notes to Gibbons v. Ogden, 5 L. ed. U. S. 302; Schlosser v. Hemphill, 49 L. ed. U. S. 1001. dinance carrying out a compromise agree- | appeal was taken, and has moved that the ment between it and the telephone company. appeal be dismissed as premature. Dismissed for lack of final judgment. The motion must be granted. The facts are stated in the opinion. Mr. James Campbell, Jr., argued the cause and filed a brief for appellant: The chief test of the finality of the judgment is that such judgment must have been rendered after a trial of the case upon its merits, and the rights of the respective litigants adjudicated according to the merits of the case, so that no further adjudication of such rights is necessary. We do not understand the law to be that the judgment, to be final, must completely and absolutely wind up the case so that no further orders or steps are necessary to be taken. Providence Rubber Co. v. Goodyear, 6 Wall. 155, 18 L. ed. 764; Forgay v. Conrad, 6 How. 203, 12 L. ed. 405; Beebe v. Russell, 19 How. 283, 15 L. ed. 668; Grant v. Phonix Mut. L. Ins. Co. 106 U. S. 429, 27 L. ed. 237, 1 Sup. Ct. Rep. 414; St. Louis, I. M. & S. R. Co. v. Southern Exp. Co. 108 U. S. 24, 27 L. ed. 638, 2 Sup. Ct. Rep. 6; Winthrop Iron Co. v. Meeker, 109 U. S. 180, 27 L. ed. 898, 3 Sup. Ct. Rep. 111; Thomson v. Dean (Dean v. Nelson) 7 Wall. 344, 19 L. ed. 94; Tuttle v. Claflin, 13 C. C. A. 281, 26 U. 8. App. 678, 66 Fed. 7. Messrs. A. Y. Martin, H. S. Corbett, James Campbell, Jr., and W. F. Bradshaw, Jr., also filed a brief for appellant. Mr. William L. Granberry argued the cause, and, with Mr. Hunt Chipley, filed a brief for appellee: This appeal is not from a final decree. Jones v. Craig (Barker v. Craig) 127 U. S. 213, 32 L. ed. 147, 8 Sup. Ct. Rep. 1175; Haseltine v. Central Nat. Bank, 183 U. S. 130, 46 L. ed. 118, 22 Sup. Ct. Rep. 50; Lea v. Kelly, 15 Pet. 213, 10 L. ed. 715; Martinez v. International Bkg. Corp. 220 U. S. 223, 55 L. ed. 443, 31 Sup. Ct. Rep. 408; Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. ed. 73, 1 Sup. Ct. Rep. 15; Clark v. Kansas City, 172 U. S. 334, 43 L. ed. 467, 19 Sup. Ct. Rep. 207; Missouri & K. I. R. Co. v. Olathe, 222 U. S. 185, 56 L. ed. 155, 32 Sup. Ct. Rep. 46. The decree not being final, this court is without jurisdiction to entertain the appeal. Canter v. American Ins. Co. 3 Pet. 319, 7 L. ed. 692; Beebe v. Russell, 19 How. 283287, 15 L. ed. 668-670; United States v. Girault, 11 How. 32, 13 L. ed. 592. From the bill it appears that a controversy had arisen concerning the legality of a "tax" in the nature of an annual rental streets the poles which had been placed for the privilege of maintaining upon the there by "permission" of the city, many years before, and also as to the character and duration of the "permission" under which the telephone company, or its predecessors, had placed and maintained the poles and wires upon the streets for the conduct of a telephone system. It also appeared from the bill and its exhibits that, for the purpose of settling every question at issue, an agreement was made between the parties, whereby the terms of a new ordinance were settled upon, under which ordinance the telephone company was to purchase a franchise at public sale, if *it[478 should be the highest bidder, the terms of which should be according to those arranged between the city and the company, which terms were to be enacted into an ordinance by the council. The company upon its part agreed to pay to the city in full settlement of the controversy as to the pole rentals which had been imposed and of all other questions, a certain sum, and to dismiss its litigation concerning the same. The company made the payment and it was accepted by the city. An ordinance was therethe right to maintain its poles and wires upon passed, which granted to the company upon the streets for a term of twenty years, and imposed conditions as to the maximum charge for telephone service which the company claims were radically different from those which had been agreed upon, and which, the bill avers, were so unreasonably low as to prevent a profitable conduct of its business. For this reason it refused to accept the ordinance, and reverted to its original rights under the permission heretofore referred to, and such other rights as had resulted from its long occupation of the streets with its poles and wires with the acquiescence of the city. Thereupon, the city council passed certain ordinances and resolutions and gave certain notices which the bill claims constituted an impairment of the company's contract and property rights in the streets, in contravention of the contract and due process clauses of the Constitution of the United States. A temporary injunction was granted against any action by the city interfering with the continuance of the company's Mr. Justice Lurton delivered the opinion poles and wires upon the streets and the of the court: The appellee has raised a question as to the finality of the decree from which this conduct of its business as it had theretofore been carried on. The city answered, denying, in substance, pealed. that it had entered into any such agree-, purpose not to enact the ordinance, apment as charged, and also its authority to make such an agreement. It admitted the receipt of the payment as charged and tendered its return, with interest. Upon a 479] final hearing the contention of the *telephone company was upheld. That part of the judgment appealed from is in these words: No time within which the city was to elect to pass the ordinance, carrying out the contract, which the court held it had made with the telephone company, was fixed by the decree. If that had been done, the mere failure to take action within that time might well be held as a conclusive "And the defendant, city of Paducah, rejection of the option to carry out the having, as shown by the record, failed to agreement, and would have the effect of carry out the agreement of compromise en- making final the decree maintaining the Tuttle v. Claflin, 13 tered into between it and the complainant, pre-contract status. though receiving parts of the proceeds of C. C. A. 281, 26 U. S. App. 678, 66 Fed. 7. said compromise, the said city of Paducah, This decree on its face is not final, and the its officers, agents, employees, and all other test of finality for the purposes of review persons, are hereby enjoined and restrained by this court by appeal is the face of the from interfering with or obstructing the decree appealed from. If the city had electcomplainant in operating a telephone ex- ed to carry out its agreement, and had change in said city, and in connection there- passed an ordinance in supposed accord with erecting poles and stringing wires with the decree, it must be accepted by the thereon until the defendant city shall duly court as a compliance. Judge Evans foreenact and put into force an ordinancé in saw that there might arise many questions the exact form and of the exact substance out of an attempt to exercise the option, agreed upon between the parties, as set and therefore reserved power to deal with An affirmforth in the bill of complaint, and also un- them when they should arise. til, under such ordinance, the franchise ance of the decree by this court would retherein referred to has been fairly and inquire that the cause be remanded for furgood faith offered at public sale, and has fairly and in good faith been sold in the way therein provided for; but nothing herein shall be deemed or taken to interfere with the power of the defendant, city of Paducah, in all reasonable and proper ways to regulate such setting of poles and stringing of wires in the legitimate exercise of the police power of said city as affecting said telephone exchange and its appliances, nor shall anything herein be construed as prohibiting the said city from making rates for telephone service lower than those named in said ordinance, if it shall hereafter result that said rates yield to the complainant, or any other person who may purchase the franchise at the sale made pursuant to such ordinance, more than a fair return upon the reasonable value of the property at the time it is being used. It is the intention of this judgment to give to the city of Paducah the option of permitting the present status to remain perpetually, or else to enact the agreed-upon ordinance and fairly to put it into force, and the court now reserves the right and the power to make any orders that may be need480]ful not only to enforce the injunction, but also to meet any emergency that may arise should the city, in the exercise of such option, enact and put into force the ordinance referred to; and the case is held open for these purposes." Thereupon the city, without exercising its option or making any declaration of a ther proceedings to make the decree final. This appeal must be dismissed as premature, and the cause remanded for further proceedings. *SINGER SEWING MACHINE COM-[481 PANY OF NEW JERSEY, Appt., V. JAMES F. BENEDICT, Treasurer, etc., et al. (See S. C. Reporter's ed. 481-488.) Equity objection to jurisdiction adequate legal remedy. 1. The objection made by demurrer and later by the answer to the bill, that a plain, adequate, and complete remedy may be had NOTE. As to what remedy at law will prevent remedy in equity-see note to Tyler v. Savage, 36 L. ed. U. Š. 83. As to injunction against illegal taxationsee notes to Dows v. Chicago, 20 L. ed. U. S. 65; and Ogden City v. Armstrong, 42 L. ed. U. S. 445. at law, is, if well founded, as available to | Mutual Fidelity Co. 123 Fed. 518; United the defendants in the circuit court of ap- States L. Ins. Co. v. Cable, 39 C. C. A. 264, peals to prevent a decree against them there 98 Fed. 761; Yonley v. Lavender, 21 Wall. as it was in the circuit court. 276, 22 L. ed. 536; Sheffield Furnace Co. v. [For other cases, see Equity, I. b, in Digest Sup. Ct. 1908.] enjoining il Equity-remedy at law legal taxes. 2. A foreign corporation cannot maintain a suit in equity in the Federal courts to enjoin the collection of city and county taxes in Colorado, which it claims were il. legal and assessed without notice, where, under the Colorado law, the company could have recovered back from the county the money so paid if the taxes were illegal. [For other cases, see Equity, I. c: Courts, 859862 Injunction, I. k, in Digest Sup. Ct. 1908.] [No. 289.] Argued May 5, 1913. Decided June 9, 1913. PPEAL from the United States Circuit Witherow, 149 U. S. 574, 579, 37 L. ed. 853, 856, 13 Sup. Ct. Rep. 936. It is not enough that there may be a legal remedy in a state tribunal. Brun v. Mann, 12 L.R.A. (N.S.) 154, 80 C. C. A. 513, 151 Fed. 145; Atchison, T. & S. F. R. Co. v. Sullivan, 97 C. C. A. 1, 173 Fed. 456. The question of equity jurisdiction, if raised by the "plea," was not passed upon by the trial court, and was therefore (a) waived, and (b) cannot be revived by the respondents in the appellate court on the complainant's appeal. Simkins, Fed. Eq. Suit, p. 31; Warmath v. O'Daniel, 18 L.R.A. (N.S.) 414, 86 C. C. A. 277, 159 Fed. 87; Foltz v. St. Louis & S. F. R. Co. 8 C. C. A. 641, 19 U. S. App. 576, 60 A Court of Appeals for the Eighth Cir. Fed. 318; Less v. English, 28 C. C. A.o 276, cuit to review a decree which affirmed a decree of the Circuit Court for the District of Colorado, dismissing the bill in a suit to enjoin the collection of taxes. Affirmed. See same case below, 103 C. C. A. 186, 179 Fed. 628. The facts are stated in the opinion. Messrs. R. H. Gilmore and Henry A. Prince argued the cause and filed a brief for appellant: The trial court by overruling the demurrer adjudged the bill to be sufficient on its face. That was an adjudication. The respondents submitted to that adjudication, and answered to the whole bill. If defendants answered over, after the demurrer was overruled, instead of standing on the de murrer, which they had a right to do, they thereby waived all defects in the bill, covered by the demurrer. 56 U. S. App. 16, 85 Fed. 471; International Trust Co. v. Norwich Union F. Ins. Soc. 17 C. C. A. 608, 36 U. S. App. 277, 71 Fed. 81; Huntington v. Laidley, 79 Fed. 865; Bryant Bros. Co. v. Robinson, 79 C. C. A. 267, 149 Fed. 321; Adams v. Howard, 20 Blatchf. 38, 9 Fed. 347; Richardson v. Green, 9 C. C. A. 565, 15 U. S. App. 488, 61 Fed. 423; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; Gates v. Bucki, 4 C. C. A. 116, 12 U. S. App. 69, 53 Fed. 961. Fraud, accident, and mistake are acknowl. edged grounds of equity jurisdiction. Atchison, T. & S. F. R. Co. v. Sullivan, 97 C. C. A. 1, 173 Fed. 456. Injunction was the proper and only adequate remedy to prevent the collection of the tax. Cobban v. Meagher, 42 Mont. 399, 113 Great Northern R. Co. v. McLaughlin, 17 Pac. 293; Fargo v. Hart, 193 U. S. 490, 48 C. C. A. 333, 44 U. S. App. 189, 70 Fed. 669; L. ed. 781, 24 Sup. Ct. Rep. 498; Colorado Foltz v. St. Louis & S. F. R. Co. 8 C. C. A. Farm & Live Stock Co. v. Beerbohm, 43 641, 19 U. S. App. 576, 60 Fed. 316; Hunt-U. Teleg. Co. 218 U. S. 146, 184, 54 L. ed. Colo. 481, 96 Pac. 443; Ludwig v. Western ington v. Laidley, 79 Fed. 865; Mercantile Trust Co. v. Missouri, K & T. R. Co. 84 Fed. 383; Bryant Bros. Co. v. Robinson, 79 C. C. A. 259, 267, 149 Fed. 321; Richardson v. Green, 9 C. C. A. 565, 15 U. S. App. 488, 61 Fed. 423; Kilbourn v. Sunderland, 130 U. S. 505, 514, 32 L. ed. 1005, 1008, 9 Sup. Ct. Rep. 594; Tyler v. Savage, 143 U. S. 97, 36 L. ed. 89, 12 Sup. Ct. Rep. 340. The complainant's remedy at law, to be adequate, must be a remedy available in a Federal court, where the jurisdiction in equity is sought. Coler v. Stanley County, 89 Fed. 257; Smythe v. Ames, 169 U. 8. 466, 517, 42 L. ed. 819, 838, 18 Sup. Ct. Rep. 418; Jones ▼. 423, 430, 30 Sup. Ct. Rep. 280; Western U. Teleg. Co. v. Andrews, 216 U. S. 165, 54 L. ed. 430, 30 Sup. Ct. Rep. 286. and speedy remedy. It has a right to have The complainant is entitled to a prompt this lien canceled and its property relieved, and no other remedy is as efficient and adequate as a suit in equity. Schmidt v. West, 104 Fed. 274; Mutual L. Ins. Co. v. Pearson, 114 Fed. 397; United States L. Ins. Co. v. Cable, 39 C. C. A. 264, 98 Fed. 761; Bank of Kentucky v. Stone, 88 Fed. 383; Union L. Ins. Co. v. Riggs, 123 Fed. 317. There may be a legal remedy, and yet, if a Wylie v. Coxe, 15 How. 415, 420, 14 L. ed. 753, 755; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 12, 43 L. ed. 341, 346, 19 Sup. Ct. Rep. 77; Phoenix Mut. L. Ins. Co. v. Bailey, 13 Wall. 616, 621, 20 L. ed. 501, 503; Kilbourn v. Sunderland, 130 U. S. 505, 514, 32 L. ed. 1005, 1008, 9 Sup. Ct. Rep. 594; Tyler v. Savage, 143 U. S. 79, 95, 36 L. ed. 82, 88, 12 Sup. Ct. Rep. 340. Mr. J. A. Marsh argued the cause, and, with Mr. W. H. Bryant, filed a brief for appellees: more complete remedy can be had in chan-erty within the city and county other than cery, it is a sufficient ground for jurisdic- that returned by it; that the additional tion. assessment and the taxes levied thereon were illegal because of the assessor's failure to give the required notice; and that to enforce the collection of such taxes would be violative of designated provisions of the Constitution of the United States. The defendants demurred on the ground that the bill did not state a case for equitable relief, but the demurrer was overruled. The defendants then answered, repeating the objection made in the demurrer, and be noticed now. Upon the hearing a decree interposing other defenses which need not was entered dismissing the bill, and the company appealed to the circuit court of appeals. That court held that there was an adequate remedy at law, and affirmed the decree. 103 C. C. A. 186, 179 Fed. 628. The company then took the present The bill, when considered alone or in connection with the testimony, presents no case within the jurisdiction of a court of equity. State R. Tax Cases, 92 U. S. 575, 23 L. ed. 663; Milwaukee v. Koeffler, 116 U. S. 219, 29 L. ed. 612, 6 Sup. Ct. Rep. 372; Union P. R. Co. v. Cheyenne (Union P. R. Co. v. Ryan) 113 U. S. 516, 28 L. ed. 516, 5 Sup. Ct. Rep. 601; Pittsburgh. C. C. & St. L. R. Co. v. Board of Public Works, 172 U. S. 33, 43 L. ed. 354, 19 Sup. Ct. Rep. 90; Cruickshank v. Bidwell, 176 U. S. 73, 44 L. ed. 377, 20 Sup. Ct. Rep. 280; Indiana Mfg. Co. v. Koehne, 188 U. S. 681, 47 L. ed. 651, 23 Sup. Ct. Rep. 452; Odlin v. Woodruff, 31 Fla. 160, 22 L.R.A. 699, 12 So. 227. Mr. Justice Van Devanter delivered, the opinion of the court: This is a suit by the Singer Company, a New Jersey corporation, to enjoin the collection of taxes levied by the city and county of Denver, in the state of Colorado. The company made a return of taxable personal property at a valuation of $3,800, to which the assessor added other personalty at a valuation of $62,500, making a total assessment of $66,300, appeal. In the courts of the United States it is a guiding rule that a bill in equity does and complete remedy may be had at law. not lie in any case where a plain, adequate, The statute so declares, Rev. Stat. § 723, U. S. Comp. Stat. 1901, p. 583, and the decisions enforcing it are without number. If it be quite obvious that there is such a remedy, it is the duty of the court to interpose the objection sua sponte, and in other cases it is treated as waived if not presented by the defendant in limine. Reynes v. Dumont, 130 U. S. 354, 395, 32 L. ed. 934, 945, 9 Sup. Ct. Rep. 486; Allen v. Pullman's Palace Car Co. 139 U. S. 658, 35 L. ed. 303, 11 Sup. Ct. Rep. 682. There was no waiver here. The objection was made by the demurrer and again by the answer; and so, if it was well grounded, it was as available to the defendants in the circuit court of appeals to prevent a decree against them there as it was in the circuit court. Boisé Artesian Hot & Cold Water Co. v. Boisé City, 213 U. S. 276, 53 L. ed. 796, 29 Sup. Ct. Rep. 426. which was afterwards embodied in a tax list delivered to the treasurer for collection. The company tendered payment of $126.50, the amount of taxes due on the *In the last case it was said of the[485 property returned by it, and refused to pertinency of the guiding rule in cases such pay the amount attributable to the addi- as this (p. 281): "A notable application tional assessment. The treasurer declined of the rule in the courts of the United to accept the tender, and was threatening States has been to cases where a demand to enforce the entire tax, when the suit was has been made to enjoin the collection of brought. The bill charged that the as- taxes or other impositions made by state sessor, although required by law to give authority, upon the ground that they are the company timely notice of the additional illegal or unconstitutional. The decisions assessment, had failed to give it any notice, of the state courts in cases of this kind and that it was thereby prevented from pre- are in conflict and we need not examine 484]senting objections to the increase and them. It is a mere matter of choice of obtaining a hearing and ruling thereon by convenient remedy for a state to permit the assessor and by the proper reviewing its courts to enjoin the collection of a state authority, to which it was entitled by the tax because it is illegal or unconstitutional. local law. There were also allegations to Very different considerations arise where the effect that the company had no prop-courts of a different, though paramount, |