ence; by it is gainfully used without permission. If a legislature concluded (as at least one court has held, New York & C. Grain & Stock Exch. v. Board of Trade, 127 Ill. 153, 2 L.R.A. 411, 19 N. E. 855) that, under certain circum[266] Or legislators dealing with the stances, news-gathering is a business afsubject might conclude that the right to fected with a public interest, it might news values should be protected to the declare that, in such cases, news should extent of permitting recovery of dam- be protected against appropriation only ages for any unauthorized use, but that if the gatherer assumed the obligation protection by injunction should be de- of supplying it at reasonable rates and nied, just as courts of equity ordinarily without discrimination, to all papers refuse (perhaps in the interest of free which applied therefor. If legislators speech) to restrain actionable libels," 19 reached that conclusion, they would and for other reasons decline to protect probably go further, and prescribe the by injunction mere political rights; 20 conditions under which and the extent and as Congress has prohibited courts to which the protection should be affordfrom enjoining the illegal assessment or ed; and they might also provide the adcollection of Federal taxes.21 If a legis- ministrative machinery necessary for lature concluded to recognize property insuring to the public, the press, and the in published news to the extent of per- news agencies, full enjoyment of the mitting recovery at law, it might, with rights so conferred. a view to making the remedy more certain and adequate, provide a fixed measure of damages, as in the case of copyright infringement.22 Courts are ill-equipped to make the investigations which should precede a determination of the limitations which should be set upon any property right in news, or of the circumstances under which news gathered by a private agency should be deemed affected with a public interest. Courts would be powerless to prescribe the detailed regulations essential to full enjoyment of the rights conferred, or to introduce the machinery required for enforcement of such regulations. Considerations such as these Or again, a legislature might conclude that it was unwise to recognize even so limited a property right in published news as that above indicated; but that a news agency should, on some conditions, be given full protection [267] of its business; and to that end a remedy by injunction as well as one for damages should be granted, where news collected was apparently no attempt to include | Act of December 16, 1911, 1 and 2 Geo. V. news among the subjects of copyright. Ar- chap. 46. guments before the Committees on Patents of the Senate and House of Representatives on Senate Bill No. 6330 and H. R. Bill No. 19,853, 59th Congress, First Session, June 6, 7, 8, and 9, and December 7, 8, 10, and 11, 1906; Hearings on Pending Bills to Amend and Consolidate Acts Respecting Copyright, March 26, 27, and 28, 1908. 17 38 Stat. at L. 1785, 1789, art. 2. 18 Bowker, Copyright: Its History and its Law, pp. 330, 612, 613. See the similar provisions in the Berne Convention (1886) and the Paris Convention (1896). Id. pp. 612, 613. In 1898 Lord Herschell introduced in Parliament a bill, § 11 of which provides: "Copyright in respect of a newspaper shall apply only to such parts of the newspaper as are compositions of an original literary character, to original illustrations therein, and to such news and information as have been specially and independently obtained." (Italics ours.) House of Lords, Sessional Papers, 1898, vol. 3, Bill No. 21. Birrell, Copyright in Books, p. 210. But the bill was not enacted, and in the English law as it now stands there is no provision giving even a limited copyright in news as such. 19 Boston Diatite Co. v. Florence Mfg. Co. 114 Mass. 69, 18 Am. Rep. 310; Prudential Assur. Co. v. Knott, L. R. 10 Ch. 142, 44 L. J. Ch. N. S. 192, 31 L. T. N. S. 866, 23 Week. Rep. 249. 20 Giles v. Harris, 189 U. S. 475, 47 L. ed. 909, 23 Sup. Ct. Rep. 639. Compare Swafford v. Templeton, 185 U. S. 487, 46 L. ed. 1005, 22 Sup. Ct. Rep. 783; Green v. Mills, 30 L.R.A. 90, 16 C. C. A. 516, 25 U. S. App. 383, 69 Fed. 852, 859. 21 Revised Statutes, § 3224, Comp. Stat. 1916, § 5947; Snyder v. Marks, 109 U. S. 189, 27 L. ed. 901, 3 Sup. Ct. Rep. 157; Dodge v. Osborn, 240 U. S. 118, 60 L. ed. 557, 36 Sup. Ct. Rep. 275. 22 Act of March 4, 1909, § 25, chap. 320, 35 Stat. at L. 1075, 1081, Comp. Stat. 1916, §§ 9517, 9546, provides as to the liability "in the case of a newspaper reproduction of for the infringement of a copyright, that, shall not exceed the sum of two hundred a copyrighted photograph such damages dollars nor be less than the sum of fifty dollars;" and that in the case of infringement of a copyrighted newspaper the damages recoverable shall be $1 for every infringing copy, but shall not be less than $250, nor more than $5,000. should lead us to decline to establish a new rule of law in the effort to redress a newly disclosed wrong, although the propriety of some remedy appears to be clear. priate to the payment of courthouse warrants certain special tax moneys in his hands. Dismissed for want of jurisdiction. See same case below, 197 Ala. 384, 72 So. 550. The facts are stated in the opinion. Mr. Giles William Lawrence Smith [268] FARSON, SON, & COMPANY, submitted the cause for plaintiffs in Plffs. in Err., V. error: JOE S. BIRD, as County Treasurer of Shel- called upon, in the exercise of its appelWhen the Federal Supreme Court is by County, Alabama. (See 8. C. Reporter's ed. 268-272.) Error to state court - Federal question decision on non-Federal ground. A judgment of a state court which, upon grounds of procedure and the powers of the county treasurer as limited and defined by the state law, refused a writ of mandamus to require that official to appropriate to the payment of courthouse warrants certain special tax moneys in his hands, alleged to be dedicated by the state law to the payment of such warrants, rests upon considerations of state law broad enough to sustain it without reference to the Federal question whether the diversion of such moneys by the direction of the county board of revenue, to the detriment of the holders of the courthouse warrants, impaired contract obligations. [For other cases, see Appeal and Error, 14651528, in Digest Sup. Ct. 1908.] [No. 54.] Submitted November 15, 1918. Decided January 7, 1919. IN ERROR to the Supreme Court of the State of Alabama to review a judgment which affirmed a judgment of the County Court of Shelby County, in that state, refusing a writ of mandamus to require the county treasurer to appro Note. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998. On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513. On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33. late jurisdiction over the state courts, to decide whether state legislation impairs the obligation of a contract, it is required to determine upon its independent judgment: (1) Was there a contract? (2) If so, what obligation arose from it? (3) Has that obligation been impaired by subsequent legislation↑ Detroit United R. Co. v. Michigan, 242 U. S. 238, 61 L. ed. 268, P.U.R. 1917B, 1010, 37 Sup. Ct. Rep. 87. The judgment of a state court in mandamus proceedings is subject to review by the Supreme Court of the United States if a Federal question is involved. McPherson v. Blacker, 146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct. Rep. 3; American Exp. Co. v. Michigan (American Exp. Co. v. Maynard) 177 U. S. 404, 44 L. ed. 823, 20 Sup. Ct. Rep. 695. A Federal question may be decided in passing on a demurrer. Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106. A Federal question is raised by an unsuccessful contention in a state court that the obligations of a contract have been impaired by a state statute and ordinances. 170 U. S. 57, 42 L. ed. 948, 18 Sup. Ct. Chicago, B. & Q. R. Co. v. Nebraska, Rep. 513; Furman v. Nichol, 8 Wall. 44, 19 L. ed. 370. It should appear that the plaintiff had a legal contract which was subject to impairment. New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142. The claim in a state court that a state statute (or ordinance of a county) is invalid because it impairs the obligation of a contract presents a Federal ques tion. Bridge Proprs. v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571. The state court judgment, by its necessary operation, gave effect to the provisions of the legislative enactment of the county which is claimed by us to impair the particular contract in ques-, tion. Lehigh Water Co. v. Easton, 121 U. S. 388, 30 L. ed. 1059, 7 Sup. Ct. Rep. 916. A decision of the Federal question in terms by the state court is not essential. If a decision of such question is necessarily involved in the judgment rendered, it is not a matter of importance that the state court avoided all reference to the question. Chapman v. Goodnow. (Chapman v. Crane) 123 U. S. 540, 31 L. ed. 235, 8 Sup. Ct. Rep. 211; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777. A refusal to consider a Federal question which is controlling in a case is equivalent to a decision against the Federal right involved therein. Des Moines Nav. & R. Co. v. Iowa Homestead Co. 123 U. S. 552, 31 L. ed. 202, 8 Sup. Ct. Rep. 217. Where the state court did not in terms pass upon the claim distinctly made there, that the statutes of the state under which the proceedings were had were in derogation of rights secured to appellant by the Constitution of United States, but the final judgment of that court necessarily involved an adjudication of that claim, this court has jurisdiction to review the case. Chicago L. Ins. Co. v. Needles, 113 T. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Rep. 681. The decision of a state court denying the validity of a statute, the founding of a contract, and in reality giving effeet to subsequent statutes which impair the contract, presents a Federal question for the purposes of a writ of error, although the state court considers only the act it holds void, and does not discuss the later acts. McCullough v. Virginia, 172 U. S. 102, 43 L. ed. 382, 19 Sup. Ct. Rep. 134. A judgment avoiding all reference to a Federal question, a decision as to which is actually necessary to determine the case, is as much against the right or claim as though it had been directly refused. Chapman v. Goodnow (Chapman v. Crane) 123 U. S. 540, 31 L. ed. 235, 8 Sup. Ct. Rep. 211. A Federal question sufficiently appears although the complaint does not mention the Constitution of the United States, where the whole theory of the case is the impairment by statute of a contract created by a prior statute, and the presentation and decision of this question appear from the record and opinion of the state court. Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 172 U. S. 475, 43. L. ed. 521; 19 Sup. Ct. Rep. 247. The title of the successful party must have been dependent upon the statute claimed to be contrary to the Constitution by the unsuccessful party. Williams v. Norris, 12 Wheat. 117, 6 L. ed. 571. Though the formal raising of a Federal question is not essential, it must necessarily have been involved in the cause. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256; Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760. No spirit of evasion for defeating the claim of Federal right must be shown by the state court. Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532, 61 L. ed. 476, 37 Sup. Ct. Rep. 188. No brief was filed for defendant in error. Mr. Chief Justice White delivered the opinion of the court: But a single question is required to be decided. We state the case only to the extent essential to make this clear and to elucidate the issue to be considered. In 1905 and 1907 the county of Shelby contracted to build and furnish a courthouse. It was stipulated that the price for the work should be evidenced by interest-bearing warrants, maturing during a series of years. By the Constitution and laws of Alabama the power of taxation [269] of the county for general purposes was limited, but, in addition, the Constitution and laws authorized counties to levy annually a special tax of of 1 per cent, to be applied to the erection or repair of county buildings, the construction of roads, bridges, etc. The warrants under the contract were in terms secured by an agreement of the county to levy this of 1 per cent tax annually and apply it to the payment of the warrants. The state law contained a provision authorizing the registry of county warrants and making such registration operate as a lien on the proceeds of the taxes dedicated to the payment of the warrants. The courthouse was completed, furnished, and accepted, and the warrants were issued in conformity with the contract and according to law. In 1916 Farson, Son, & Company, al-, were necessary to pay said warrants, leging themselves to be holders of war- void as an impairment of the obligation rants issued under the contract as of a contract forbidden both by the state above stated, filed their suit for man- Constitution and that of the United damus against the county treasurer. States. But from these premises it neverThe petition alleged the contract for theless decided that there was no right the courthouse, and averred that the to the mandamus against the county board of revenue of the county, the treasurer. It rested its conclusion on governing body which had succeeded to provisions of the state Constitution and the county commissioners previously in laws, which it held defined the duty of authority, while continuing the levy of that officer and absolutely deprived him the of 1 per cent tax, had, in impair- of all power to apply or pay money comment of the obligation of the court- ing into his hands by taxation levied for house contract, dedicated the proceeds a particular purpose to another and difof that tax, as collected, to roads or ferent purpose. It decided, therefore, bridges, thus depriving the warrant that, under the theory that the board holders under the courthouse contract of revenue had wrongly directed the apof the means of payment to which they propriation of the of 1 per cent tax, were entitled. It was alleged that, in action [271] against that body, and not consequence of such action, the county merely against the county treasurer, was treasurer had refused to pay any of the appropriate and necessary under the proceeds of the of 1 per cent tax to state law. The court said: the courthouse warrant holders, and had, "If the facts alleged in this petition in further violation of his duty, cred- are true, they [the courthouse warrant ited the same to other funds and paid holders] ought to have relief, and the them out accordingly. It was moreover county ought to be required to carry out charged that the treasurer had in his its contract, or to answer in damages for hands, despite such wrongful payments the breach thereof, if the contract was to others, the sum of about $7,000, de- valid and binding; but the relief must rived from the of 1 per cent tax col- be had by different proceedings and lected in 1915, which it was [270] his against different officers, or the county duty to apply as far as necessary to the itself, and not against the county treasdischarge of a sum of $1,565, with inter-urer. Mandamus may be petitioners' est, due on the courthouse warrants, remedy, but under the facts alleged it and which he had refused to pay, al- must be against different officers than though demand had been made on him the county treasurer." 197 Ala. 384, 72 to do so. The petition expressly count- So. 550. ed upon the protection of the contract Thus resting its decision exclusively rights which it asserted, not only by the upon the question of procedure and the Constitution of the state, but also by power of the particular officer against the contract clause of the Constitution whom the mandamus was asked, as limof the United States, alleging impair-ited and defined by the state law, we see ment thereof by action of the board of no basis for the contention that the acrevenue, legislative in character; and tion of the state court gave effect to the the prayer was that the county treas-impairment of the obligation of a conurer be mandamused to pay out of the tract, in violation of the contract clause of 1 per cent tax for 1915 in his hands the sum of $1,565, with interest. A demurrer to the petition, as stating no cause for relief, was sustained, and the case is before us upon the ground of the deprivation of Federal right which arose from the action of the court below in affirming the trial court. The court below conceded that, under the state law, mandamus was appropriate if the county treasurer had capacity to stand in judgment. It moreover conceded that, if the contract had been entered into as alleged, the attempt to violate it by dedicating the proceeds of the of 1 per cent tax to any purpose other than to the payment of courthouse warrants was, in so far as such proceeds of the Constitution. On the contrary, we are of opinion that, when correctly tested, it becomes apparent that the action of the court below involved only a ruling upon a question of remedy resting upon considerations of state law broad enough to sustain the conclusion reached without any reference to the Federal questions which were raised and relied upon. And any possible doubt on this subject, we are of opinion, is removed by the subsequent action of the court below in the case of Board of Revenue v. Farson, 197 Ala. 375, L.R.A.1918B, 881, 72 So. 613, cited in the brief of the plaintiff in error. In that case, which was an action against the board of revenue of Shel by county to compel the levy of the of 1 per cent tax, as provided in the courthouse contract, for the purpose of paying, not only certain warrants which were past due in 1916, but to provide for the warrants falling due in 1917, the court [272] awarded the mandamus sought. In doing so, it not only held that the courthouse contract was valid and that the agreement to levy the tax as therein stipulated was lawful, but, moreover, that the subsequent action of the board of revenue in diverting the fund to the detriment of the courthouse warrant holders was an impairment of the obligations of the contract and was void because of repugnancy to the Constitution of the state and to the contract clause of the Constitution of the United States. It is true, indeed, that in that case the court referred to its ruling in this case with approval, but the relief which was denied in the one and afforded in the other leaves no support upon which to rest the contention that contract rights secured by the Constitution were impaired by the ruling which was made in this case. ployee, founded on the Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, the Boiler Inspection Act of February 17, chap. 149, Comp. Stat. 1916, § 8657), and 1911 (36 Stat. at L. 913, chap. 103, Comp. Stat. 1916, § 8630), comes within the generic class of cases as to which the power of the Federal Supreme Court to review by writ of error was taken away by the Act of September 6, 1916 (39 Stat. at L. 726, chap. 448, Comp. Stat. 1916, § 1207), and authority to review by certiorari substi tuted. 2. Only from the date of the refusal of the highest court of a state to exercise its discretionary power to review a judg ment at the trial court did that latter judgment become final for the purpose of applying the provision of the Act of September 6, 1918 (39 Stat. at L. 726, chap. 448, Comp. Stat. 1916, § 1207), taking judg out of the reach of the terms of that act, ments rendered before it became operative by which discretionary authority to review judgments of state courts by certiorari was substituted in certain cases for the existing power to review by writ of error. [For other cases, see Appeal and Error, I. d, 24, in Digest Sup. Ct. 1908.] [No. 82.] As our conclusion is that the Federal question relied upon as the basis for the Argued December 16 and 17, 1918. Decided writ of error had no foundation, it follows that our decree must be, and it is, writ of error dismissed for want of ju risdiction. MAUDE L. ANDREWS, Administratrix of A. W. Andrews, Deceased, Plff. in Err., V. VIRGINIAN RAILWAY COMPANY. (See S. C. Reporter's ed. 272-276.) Certiorari - to state court-suit founded on Federal statute. 1. A suit in a state court against a carrier for the wrongful death of an em Note.-As to what judgments of state, courts are final for the purpose of a review in the Federal Supreme Court-see note to Schlosser v. Hemphill, 49 L. ed. U. S. 1001. Certiorari to state courts. Since the amendment of September 6, 1916, to the Judicial Code, § 237, cases brought within its effect, involving alleged denials of Federal rights, cannot be brought up to the Federal Supreme Court by writ of error to a state court unless there is drawn in question the validity of a statute of or an authority January 7, 1919. IN ERROR to the Roanoke County Circuit Court of the State of Virginia to review a judgment in favor of defendant in an action for wrongful death. Dismissed for want of jurisdiction. See same case below in court of appeals on first writ of error, 118 Va. 482, 87 S. E. 577. Statement by Mr. Chief Justice White: To recover for the wrongful death of Andrews, a locomotive engineer in the employ of the defendant in error, the plaintiff in error, the representative of exercised under the state, on the ground of their being repugnant to the Federal Constitution, treaties, or laws. Other cases can be reviewed only upon writ of certiorari. Dana v. Dana, 250 U. S. 220, post, 39 Sup. Ct. Rep. 449; Chicago G. W. R. Co. v. Basham, 249 U. S. 164, post, 534, 39 Sup. Ct. Rep. 213. A question respecting a right, privilege, or immunity claimed under the Federal Constitution or the treaties made thereunder will not, since the amendment of September 6, 1916, to the Judicial Code, § 237, afford the basis of a writ of error from the Federal Supreme Court |