or to comply with the lawful order of the Secretary of War in the premises, such person, corporation, or association shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding $5,000, and every month such person, corporation, or association shall remain in default as to the removal or alteration of such bridge, shall be deemed a new offence and subject the person, corporation, or association so offending to the penalties above described." (26 Stat., 426, 453, c. 907.) Proceeding under that act the Secretary of War gave notice to the county commissioners of Muskingum County, Ohio, to make on or before a named day certain alterations in a bridge over the Muskingum River, Ohio, at Taylorsville, in that State. The commissioners, although having control of the bridge, did not make the alterations required and were indicted under the act of Congress. Held, That however broadly the act of Congress may be construed, it ought not to be construed as embracing officers of a municipal corporation owning or controlling a bridge who had not in their hands, and under the laws of their State could not obtain, public moneys that could be applied in execution of the order of the Secretary of War within the time fixed by that officer to complete the alteration of such bridge.

Leovy v. The United States. (177 U. S., 621.)

In this case the court reversed a conviction of Leovy for building a dam across the Red Pass, claimed to be a navigable stream flowing into the Gulf of Mexico from the Jump, an outlet of the Mississippi into the Gulf. The defendant below claimed to have acted under authority of the State of Louisiana. The views of the court are sufficiently stated in the syllabus, which is as follows:

Subject to the paramount jurisdiction of Congress over the navigable waters of the United States, the State of Louisiana had, under the act of March 2, 1849, c. 87, and the other statutes referred to in the opinion of the court, full power to authorize the construction and maintenance of levees, drains, and other structures necessary and suitable to reclaim swamp and overflowed lands within its limits.

The dam constructed by the plaintiff in error at Red Pass was constructed under the police power of the State and within the terms and purpose of the grant by Congress.

The decision of the jury, to whom it had been left to determine whether the plaintiff in error was guilty, that the pass was in fact navigable, is not binding upon this court.

The term navigable waters of the United States has reference to commerce of a substantial and permanent character to be conducted thereon.

The defendant below was entitled to the instruction asked for, but refused, that the jury should be satisfied from the evidence that Red Pass was at the time it was closed substantially useful to some purpose of interstate commerce, as alleged in the indict

ment.

Upon the record now before the court it is held that Red Pass, in the condition it was when the dam was built, was not shown by adequate evidence to have been a navigable water of the United States actually used in interstate commerce and that the court should have charged the jury, as requested; that upon the whole evidence adduced the defendants were entitled to a verdict of acquittal.

Cruickshank v. Bidwell. (176 U. S., 73.)

This was a suit brought by Cruickshank, an importer of tea, against the collector of the port of New York, to enjoin the latter from retaining possession of certain teas which he had seized under the act of March 2, 1897, "to prevent the importation of impure and unwholesome tea." It was claimed that this act is unconstitutional. The court held that no sufficient ground for an injunction was shown; that the importer had an adequate remedy at law by a suit to recover from the collector the value of the teas seized, in case the act were unconstitutional. The following is the syllabus:

The mere fact that a law is unconstitutional does not entitle a party to relief by injunction against proceedings in compliance therewith, but it must appear that he has no adequate remedy by the ordinary processes of the law, or that the case falls under some recognized head of equity jurisdiction; and in this case the averments of the complainants' bill did not justify such an interference with Executive action.

The seizure of importations of teas purchased after the approval of the act of March 2, 1897, c. 358, entitled "An act to prevent the importation of impure and unwholesome tea," and the establishment of regulations and standards thereunder, publicly promulgated and known to complainants, because falling below the standards prescribed, could inflict no other injury than what it must be assumed was anticipated, and the interposition of a court of equity can not properly be invoked, under such circumstances, to determine in advance whether complainants, if they imported teas of that character, could escape the consequences on the ground of the invalidity of the law.

United States v. Harris. (177 U. S., 305.)

The original suit was brought against the receivers of the Philadelphia and Reading Railroad Company under sections 4386, 4387, 4388, and 4389 of the Revised Statutes to recover a penalty for confining horses, in the course of interstate transportation, in cars more than twenty-eight consecutive hours, without unloading them for rest, water, and food.

The court held that under the rule of strict construction applicable to a penal statute the receivers of a railroad company do not come within the terms of the law.

In view of this holding, it is a matter for the consideration of Congress whether the existing law ought not to be amended so as to apply to railroads when managed by their receivers as well as to railroads when managed by their directors and officers. Obviously, no reason can be suggested for preventing cruelty to animals by railroads operated by their officers which do not equally apply to such railroads when operated by receivers.

Ex Parte Baez. (177 U. S., 378.)

Baez, a native-born inhabitant of Porto Rico, applied for leave to file a petition for writs of habeas corpus and certiorari to secure his release from further imprisonment under the judgment of the United States provisional court of Porto Rico, sentencing him to be confined for thirty days at hard labor for illegal voting at a municipal election held under a military order. Interesting questions were raised by the petition, but the court declined to grant leave to file it on the ground that if the writs should issue, the term of imprisonment would expire before they could be served and returned.

Carter v. Roberts. (177 U. S., 496.)

This case and the decision of the court are sufficiently stated in the syllabus, which is as follows:

Captain Carter, of the Corps of Engineers in the Army of the United States, was duly and regularly tried before a legally convened court-martial, was found guilty of the charges made against him, and was sentenced to dismissal; to be fined; to be imprisoned, and to publication of crime and punishment; and the sentence was duly approved and confirmed. On a motion in his behalf the United States circuit court for the second circuit issued a writ of habeas corpus to inquire into the matter, which resulted in the dismissal of the writ and the remanding of Carter to custody. He took an appeal to the circuit court of appeals for the second circuit, which affirmed the judgment below, and this court denied an application for a writ of certiorari to review that judgment. An appeal and writ of error was allowed on the same day by a judge of the circuit court to this court.

Held, that the appeal and writ of error could not be maintained, as they fall directly within the ruling in Robinson v. Caldwell (165 U. S., 359), where it was held that the judiciary act of March 3, 1891, does not give a defeated party in a circuit court the right to have his case finally determined both in this court and in the circuit court of appeals on independent appeals.

When cases arise which are controlled by the construction or application of the Constitution of the United States, a direct appeal lies to this court, and if such cases are carried to the circuit courts of appeals those courts may decline to take jurisdiction, or where such construction or application is involved with other

questions may certify the constitutional question and afterwards proceed to judgment, or may decide the whole case in the first instance; but when the circuit court of appeals has acted on the whole case, its judgment stands unless revised by certiorari to or appeal from that court in accordance with the act of March 3, 1891.

Fitzpatrick v. The United States. (178 U. S., 304.)

Fitzpatrick, jointly indicted with two others, was convicted in the district court of Alaska of the crime of murder, but the jury qualified their verdict by finding him guilty "without capital punishment.' The judgment was affirmed. A number of interesting questions respecting the sufficiency of the indictment and the relevancy of testimony were passed upon by the court. Probably the most important finding was that a conviction for murder is a conviction of a capital crime, although the jury qualify their verdict of guilty by adding the words "without capital punishment." The following is the syllabus:

Under the court of appeals act of March 3, 1891, a conviction for murder is a "conviction of a capital crime," though the jury qualify their verdict of guilty by adding the words "without capital punishment." The test of a capital crime is not the punishment which is imposed, but that which may be imposed under the

statute.

Under the statute of Oregon requiring the offense to be stated "in ordinary and concise language and in such manner as to enable a person of common understanding to know what was intended,” an indictment for murder charging that the defendant feloniously, purposely, and of deliberate and premeditated malice inflicted upon the deceased a mortal wound of which he instantly died is a sufficient allegation of premeditated and deliberate malice in killing him.

Evidence that one jointly indicted with the defendant was found to have been wounded in the shoulder, and his accompanying statement that he had been shot, were held to be competent upon the trial of the defendant.

Any fact which had a bearing upon the question of defendant's guilt, immediate or remote, and occurring at any time before the incident was closed, was held proper for the consideration of the jury, although statements made by other defendants in his absence implicating him with the murder would not be competent.

The prisoner, taking the stand in his own behalf and swearing to an alibi, was held to have been properly cross-examined as to the clothing worn by him on the night of the murder, his acquaintance with the others jointly indicted with him, and other facts showing his connection with them.

Where an accused party waives his constitutional privilege of silence and takes the stand in his own behalf and makes his own statement, the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness as to the circumstances connecting him with the alleged crime.

H. Doc. 9-2

Evidence in rebuttal with respect to the effect of light from the flash of a revolver was held to be competent where the defense put in a calendar, apparently for the purpose of showing the time the moon rose that night.

Knowlton v. Moore. (178 U. S., 41.)

In this case the court sustained the constitutionality of the Federal tax on legacies and distributive shares of personal property imposed by the war-revenue act of June 13, 1898. The act was assailed on many grounds:

1. It was insisted that it was a direct tax, within the decision in the income-tax cases, because it falls ultimately upon the property inherited, and being unapportioned among the States was invalid.

2. It was urged if not a tax on property, but a tax upon the privilege of transmitting or receiving property, it is invalid because the privilege of inheritance is conferred and regulated by the States. To permit the General Government to tax this privilege would be to allow it to abridge or destroy a right lawfully conferred by the States.

3. Moreover, it was contended that if an excise the tax violated the rule of uniformity laid down by the Constitution, more especially in the graded feature, which raises the rate as the value of the legacy increases.

The court, in a most able and elaborate opinion by Mr. Justice White, overruled all these contentions and vindicated in the amplest manner the authority of the General Government to raise its revenues by taxing valuable privileges however obtained, and in so doing to apportion the burdens of government equitably, keeping in mind “the ability of the person on whom the burden is placed to bear the same." The following is the syllabus:

The plaintiffs in error were the executors of the will of Edwin F. Knowlton, of Brooklyn, N. Y. The defendant in error was the United States collector of internal revenue for the first collection district for the State of New York. Mr. Knowlton died at Brooklyn in October, 1898, and his will was duly proved. Under the portion of the act of Congress of June 13, 1898, which is printed at length in a note to the opinion of the court in this case, the United States collector of internal revenue demanded of the executors a return, showing the amount of the personal estate of the deceased and the legatees and distributees thereof. This return the executors made under protest, asserting that the act of June 13 was unconstitutional. This return showed that the personal estate amounted to over two and a half millions of dollars, and that there were several legacies ranging from under $10,000 each to over $1,500,000. The collector levied the tax on the legacies and distributive shares, but for the purpose of fixing the rate of the tax considered the whole of the personal estate of the deceased as