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refused and still refuses to return to plain-quent taxes on other kinds of personal proptiff the amount so collected. erty."

13. The said taxes were assessed, levied, and collected by the defendant without the action, authority, or assistance of the board of county commissioners, or of any other officer or officers of Laramie county.

12. The time consumed in driving said The question to be determined, then, is sheep from the western boundary of the whether the stock of the plaintiff was state of Wyoming to Pine Bluffs station, in brought into the state for the purpose of Laramie county, was from six to eight being grazed at the time it was assessed for weeks, and by the route followed the dis- taxation. This question must be answered tance traveled was about 500 miles. by the agreed statement of facts. While this statement is binding upon this court, as well as the state courts, different inferences may be drawn from these facts as to the applicability of the state statute. Had the state court found directly the ultimate fact that these sheep were brought into the state for the purpose of being grazed, such finding might have bound us, but, under the facts actually found or agreed upon, we are at liberty to inquire whether they support the judgment. Harrison v. Perea, 168 U. S. 311, 42 L. ed. 478, 18 Sup. Ct. Rep. 129.

14. The said property so owned by the plaintiff had not been regularly assessed in any other county of the state for that year, and no taxes had been paid thereon in any other county in the state.

15. That for the purpose of shipping said sheep it was not necessary that they should be driven into the state of Wyoming, and that the railroad over which they were shipped could be reached from the point where the sheep were first driven by traveling a less distance than was necessary to travel from the place where they were first driven to any point in the state of Wyoming.

16. That at the time the $250 was paid to the defendant, it was paid without any protest other than appears in the other paragraphs of this agreed statement of facts.

Mr. Josiah A. Van Orsdel for plaintiff in error.

Messrs. Willis Van Devanter and W. B. Stoll for defendant in error.

The law upon this subject, so far as it concerns interference with interstate commerce, is settled by several cases in this court, which hold that property actually in transit is exempt from local taxation, although if it be stored for an indefinite time during such transit, at least for other than natural causes or lack of facilities for immediate transportation, it may be lawfully assessed by the local authorities. State, Detmold, Prosecutor, v. Engle, 34 N. J. L. 425; Standard Oil Co. v. Bachelor, 89 Ind. 1; Burlington Lumber Co. v. Willetts, 118 Ill. 559, 9 N. E. 254.

The first case in which the question arose is that of Brown v. Houston, 114 U. S. 622, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091, in which it was held that coal mined in Pennsylvania and sent by water to New Orleans to Mr. Justice Brown delivered the opin-be sold in the open market there on account ion of the court: of the owners in Pennsylvania, and lying at This case resolves itself into the single New Orleans in flatboats for sale, became question whether the property of the plain- intermingled, on its arrival there, with the tiff was engaged in interstate commerce to general property of the state, and was subsuch an extent as to be exempt from taxa-ject to taxation under the general laws of tion by the state of Wyoming, through which it was being transported.

The statute of the state upon this subject (Laws 1895, chap. 61) is as follows:

"Sec. 1. All live stock brought into this state for the purpose of being grazed shall be taxed for the fiscal year during which it shall have been brought into the state.

"Sec. 2. Assessors are, for the purpose of enforcing this act, hereby vested with the powers and charged with the duties vested in and conferred upon other officers for the collection of taxes.

"Sec. 3. It shall be the duty of the assessors in the several counties to levy and immediately collect the taxes as provided for in this act, as soon as live stock is brought into their counties to graze, and to pay without delay such sums to the treasurers of their respective counties.

Louisiana, although it might have been, after arrival, sold from the vessel on which the transportation was made, without being landed, and for the purpose of being taken out of the country by a vessel bound to a foreign port. The case was affirmed in Pittsburg & S. Coal Co. v. Bates, 156 U. S. 577, 39 L. ed. 538, 5 Inters. Com. Rep. 30, 15 Sup. Ct. Rep. 415, which differed from the former only in the fact that the coal did not reach New Orleans, the port of destination, but was still on the Mississippi river, 9 miles above Baton Rouge, where it was held for sale. It appeared that the boats were held subject to the orders of plaintiff to be navigated to such place or places as he might deem convenient or advantageous to the trade in which he was engaged.

In Coe v. Errol, 116 U. S. 517, 29 L. ed. 715, 6 Sup. Ct. Rep. 475, it was held that "Sec. 4. Whenever the owner of any live logs cut in New Hampshire, which were stock upon which a tax has been levied, as hauled down to the town of Errol, on the provided in this act, shall refuse to immedi- Androscoggin river in that state, to be ately pay the amount of such tax to the as- thence floated down the river to Lewiston, sessor who levied it, such assessor shall pro-Maine, and were awaiting a convenient opceed forthwith to collect such tax, as pro-portunity for such transportation, were vided by law for the collection of delin- still a part of the general mass of property

of the state, liable to taxation, if taxed in | of Wyoming to Pine Bluffs station for the the usual way in which such property was purpose of shipment, and that the same taxed in that state. It was a stipulated were not brought into the state for the purfact that the timber thus cut had lain over pose of being maintained permanently one season, being about a year, in the And-there." (12) "The time consumed in drivroscoggin river in that state, either in Er- ing said sheep from the western boundary rol, Dummer, or Milan; and that other tim- of the state of Wyoming to Pine Bluffs staber referred to in the petition as having tion, in Laramie county, was from six to been cut in Maine had lain over in Errol eight weeks and by the route followed the since the spring or summer before the taxa-distance traveled was about 500 miles." tion. The question is thus stated by Mr. Justice Bradley: "Are the products of a state, though intended for exportation to another state, and partially prepared for that purpose by being deposited at a place or port of shipment within the state, liable to be taxed like other property within the state?" Said he: “There must be a point of time when they cease to be governed exclusively by the domestic law, and begin to be governel and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement for transportation from the state of their origin to that [the state] of their destination. Until then it is reasonable to regard them as not only within the state of their origin, but as a part of the general mass of property of that state, subject to its jurisdiction, and liable

It thus appears that the only purpose found for which this herd of sheep was being driven across the state was for shipment, and the agreed statement wholly fails to show that they were detained at any place within the state for the purpose of grazing, or otherwise. As they consumed from six to eight weeks in traveling about 500 miles, or, as the supreme court found, at the rate of about 9 miles per day, it does not even appear that they loitered unnec essarily on the way. As they required sustenance on the journey, and could obtain it only by grazing, it would appear, though there is no testimony upon that point, that they could hardly have been driven more rapidly without a loss of flesh during the transit. The only evidence as to the manner in which such grazing was conducted is contained in the fourth stipulation: "In driving said sheep in such manner it was the practice of the person in charge to perThe substance of these cases is that, while mit them to spread out at times in the the property is at rest for an indefinite time neighborhood of a quarter of a mile, and awaiting transportation, or awaiting a sale while being so driven the sheep were perat its place of destination, or at an inter-mitted to graze over land of that width. mediate point, it is subject to taxation. But They were driven, in some instances, if it be actually in transit to another state, through large pastures, in other instances it becomes the subject of interstate commerce, and is exempt from local assessment. We place no reliance upon the fact in this case that plaintiff's sheep had been duly returned for taxation, and assessed for the taxes of 1895 in the territory of Utah, since, although this may have some bearing upon the equities of the case, it was declared in Coe v. Errol to have no significance as a matter of law.

to taxation there."

through the public domain, and in other instances through pastures inclosed by fences." Considering that the herd numbered about 10,000 sheep, and were moved eastward at the rate of 9 miles a day, it does not seem as though the fact that they were permitted to graze over a width of a quarter of a mile was evidence of any unnecessary delay; and while the owner would undoubtedly be liable for any damage done The question turns upon the purpose for to pasturage en route, there is no evidence which the sheep were driven into the state. at all that the transit of the sheep was de If for the purpose of being grazed, they are layed for the purpose of grazing while goexpressly within the 1st section of the act. ing through the state. Bearing in mind But if for the purpose of being driven that the weight of all the previous cases in through the state to a market, they would this court has been laid upon the fact of an be exempt as a subject of interstate com- indefinite delay, awaiting transportation merce, though they might incidentally have at the commencement of the journey, or supported themselves in grazing while ac- awaiting sale or delivery at its termination tually in transit. We think the question is the facts of this case fail completely to sufficiently answered by the statement of bring it within those authorities. The fact facts, from which it appears (3) that the that the sheep may not have lost flesh, or sheep were in charge of plaintiff's agent, may even have gained flesh, during their "who was driving and transporting said sheep through said state of Wyoming, from the then territory of Utah to the state of Nebraska." (4) "While being driven from It is true that the sheep might have been the western boundary of the state to Pine transported by rail from Utah to Pine Bluffs station, on the eastern boundary, they Bluffs, but the statement fails to show were maintained by grazing along the route whether that course would have been more of travel." (7) "It was a fact, and de- or less expensive than the one adopted. It fendant had knowledge of the fact and was is clear that the owner had the right to notified by plaintiff's agent, that said herd avail himself of such means of transporta of sheep were being driven across the state' tion as he preferred, and in estimating the

transit through the state, is impertinent, unless the primary purpose of their being driven there was for grazing.

state court, where it is first suggested upon application for a rehearing after the final decision of the highest state court.

probable cost he was at liberty to consider the fact that he was licensed to make use of the public lands of the United States, without charge, for the sustenance of his sheep. Buford v. Houtz, 133 U. S. 320, 33 L. ed. 618, 10 Sup. Ct. Rep. 305. Why he Submitted December 1, 1902. Decided Janshipped them by rail from Pine Bluffs is not explained, but it seems quite probable

[No. 107.]

uary 19, 1903.

IN ERROR to the Supreme Court of the

that it was due to the fact that the public State of Texas to review a decree which

refused a writ of mandamus to compel the commissioner of the general land office of that state to award to the petitioner certain sections of the public school lands. Dismissed.

See same case below, 94 Tex. 62, 54 S. W. 1016, 55 S. W. 559, 57 S. W. 940.

lands in Nebraska had been so far taken up that the sheep would not be able to obtain sufficient nourishment if they were driven through that state. We do not deny that it may have been plaintiff's intention not only to graze, but to fatten, his sheep while en route to Wyoming. Indeed, we may suspect it, but there is nothing in the agreed statement of facts to justify that inference. While the 15th finding states that for the Statement by Mr. Justice Brown: purpose of shipping said sheep it was not This was an original petition filed in the necessary that they should be driven into supreme court of Texas by the plaintiff in the state of Wyoming, and that they might error, Weber, against Charles Rogan, comhave been shipped on the railroad much far-missioner of the general land office of the ther west than Pine Bluffs station, that state, praying for a writ of mandamus difinding really resolves itself back to the recting such commissioner to award to the proposition already stated, that the owner or his shepherd was at liberty to choose his own method of transportation, and as he took a direct route through the state, deviating neither to the right nor to the left, and traveled as rapidly as a due regard for the condition of his flock permitted, we think there could be no fair inference from these facts that the sheep were introduced into the state for the purpose of grazing.

petitioner two isolated and detached sec tions of the public school lands, situated respectively in Polk and Jefferson counties, in the state of Texas.

The petitioner alleged in substance that' on August 11, 1899, being desirous of pur. chasing such lands, he applied to the commissioner for the same at the price fixed by law, $1 per acre, and otherwise fully complied with the terms of sale offered by law authorizing him to become the purchaser; There is another consideration worthy of that the commissioner refused and rejected attention, and that is that the right which his applications, for the reason that the two the state of Wyoming had to tax this prop-sections applied for had theretofore been erty might have been exercised in every classified, the first as timber land, and the state through which the sheep were driven. second as grazing land, to neither of which In this particular case it would appear the law was applicable, and could not be that they were shipped at Pine Bluffs, but they might with equal propriety have been driven through Nebraska and Iowa before reaching their final destination. Indeed, § 3 of the act, which provides "it shall be the duty of the assessors in the several counties to levy and immediately collect taxes as provided for in this act, as soon as live stock is brought into their counties to graze," leaves it an open question whether these taxes may not have been assessed in every county through which these sheep were driven.

purchased under the law in force at the date of the application for $1 per acre, though such grazing and timber lands were isolated and detached from other public lands, and were situated in counties organized prior to January 1, 1875, and that there was no law under which the petitioner could have lawfully awarded to him the two said sections at $1 per acre. Petitioner admitted that said two sections were classified by the commissioner,-one as timber land and the other as grazing land,— but averred that such classification was of The judgment of the Supreme Court of no force or effect because the provisions of Wyoming is therefore reversed, and the case the law requiring lands belonging to the remanded to that court for further proceed-public school fund to be classified did not ings not inconsistent with this opinion.

(188 U. S. 10)

PAUL O. WEBER, Piff. in Err.,

บ.

CHARLES ROGAN.

relate or apply to isolated and detached sections, or fractions of sections of such lands, situated in counties organized prior to January 1, 1875, but that the price of said lands was at that time fixed by law at $1 per acre, irrespective of any classification made of said lands either before or after

Error to state court-Federal question the time they became isolated and detached.

when raised in time.

That by application to the commissioner and depositing with the treasurer of the A Federal question is raised too late to confer state the amount due therefor, he became Jurisdiction on the Supreme Court of the the purchaser of said two sections, and the United States to review the judgment of a commissioner was without authority to

11. See Courts, vol. 13, Cent. Dig. § 1080.

withhold from him said lands.

Upon this petition the case was sub-was used in the sense of "shall;" that no mitted upon briefs and oral arguments to discretion was vested in the commissioner; the supreme court, which awarded a man- that the general provisions regulating the damus (94 Tex. 62, 54 S. W. 1016), subse-sale of public school lands did not apply to quently granted a rehearing (94 Tex. 67, isolated and detached sections and frac 55 S. W. 559), and upon such rehearing tions of sections; that they required no filed an opinion refusing the writ (94 Tex. classification or appraisement; that the law 67, 57 S. W. 940). of 1897 fixed their purchase price absolutely at $1 per acre; and that all that was necessary to acquire an inchoate title was to make application to the commissioner and tender the proportion of the purchase money, required by law to be paid in cash, together with the statutory obligations for the balance. Upon rehearing, the opinion of the court was changed, and the majority came to the conclusion that the word "may," as used in the statute, ought to be construed in its literal sense, and as merely conferring the power upon the commissioner to sell land at $1 per acre, but not making it obligatory upon him to do so. The mandamus was denied. Another rehearing was also denied.

Whereupon petitioner applied and was granted a writ of error from this court, and assigned as error that the state had offered to sell all isolated and detached sections and fractions of sections of public school lands situated in counties organized prior to January 1, 1875, at $1 per acre; that this offer by the state was accepted by the petitioner, and that such acceptance constituted a contract between the state and the purchaser, and that, by holding that the commissioner of the land office might decline to award the petitioner the lands applied for, the court gave a construction to the statue which impaired the obligation of such contract.

There is hardly a semblance of a Federal Messrs. F. Charles Hume and M. E. question in this case. None such was noKleberg for plaintiff in error.

Mr. C. K. Bell for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

At the time the petitioner made his applications to the commissioner of the land office for the purchase of these lands, the following law was in force (2 Batt's Rev. Stat. art. 4218y):

"The commissioner of the general land of fice may withhold from lease any agricultural lands necessary for the purpose of settlement, and no agricultural lands shall be leased if, in the judgment of the commissioner, they may be in immediate demand for settlement, but such lands shall be held for settlement and sold to the actual settlers only, under the provisions of this chapter; and all sections and fractions of sections, in all counties organized prior to the 1st day of January, 1875, except El Paso, Presidio, and Pecos counties, which sections are isolated and detached from other public lands, may be sold to any purchaser, except to a corporation, without actual set tlement, at $1 per acre, upon the same terms as other public lands are sold under the provisions of this chapter." Acts 1897, chap. 129.

The supreme court held that the determination of the case depended upon the question whether it was made by this law the imperative duty of the commissioner of the land office to sell all isolated and detached sections and parts of sections of the public free school lands to the first applicant without regard to their classification; and that that construction depended upon the question whether the words "may be sold to any purchaser" implied a discretion in the commissioner to refuse, or was to be understood as equivalent to "shall," which would imply a duty upon the part of the commissioner to sell to any purchaser at the price fixed, of $1 per acre. At first the court was of opinion that the word "may"

ticed in the original petition or in either opinion of the court; and it was not until after an application was made for a rehear ing that petitioner discovered that the act of the legislature of 1895, as amended by the act of 1897 (Rev. Stat. 4218y), above cited, constituted a contract on the part of the state to sell all isolated and detached sections and fractions of sections of public school lands to any purchaser who would offer $1 per acre therefor, which had been impaired by the supreme court of the state in holding that the commissioner of the land office might refuse to execute such contract by declining to award the lands applied for, and therefore violated its obliga tion.

* We agree with the supreme court of the* state that no contract was created by this statute. Hence, there was none to be impaired. We had occasion to hold in Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80, that we have no jurisdiction of a writ of error to a state court upon the ground that the obligation of a contract has been impaired, when the validity of the statute under which the contract is made is admitted, and the only question is as to the construction of the statute by that court; and in the same case, as well as in Hanford v. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Rep. 1051, we held that the constitutional inhibition applies only to the legislative enactments of the state, and not to judicial decisions or the acts of state tribunals or officers under statutes in force at the time of the making of the contract, the obligation of which is alleged to have been impaired.

In addition to this, however, the question was not made until after the final decision of the state court, and upon applica tion for a rehearing. This was clearly too late. Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874.

The writ of error is dismissed.

*105

(188 U. S. 104) AMERICAN

COLORTYPE

Appt.,

v.

COMPANY,pose of consolidating the three. Among the

CONTINENTAL COLORTYPE COMPANY,
William J. Maas, Baxter J. Fierlein,
Henry Freese, Henry E. Schultz, O. H.
Quetsch, and J. O. M. Seibert.

Courts-jurisdiction diverse citizenship assigned claim.

The jurisdiction of a circuit court of the United States, on the ground of diverse citizenship, of a suit by a foreign corporation against residents of the state, is not defeated on the theory that plaintiff is suing as the assignee of a domestic corporation, where the bill, although emphasizing the existence of certain contracts between defendants and its assignor, and alleging that it became substituted for such assignor as a party thereto, contains allegations which show that the parties, having the old contracts before them, entered Into new agreements determined by reference

to the terms of the old contracts, but none the less personal and immediate.

[No. 440.]

Submitted December 22, 1902. Decided
January 19, 1903.

APPEAL from the Cir Northern

United States for the Northern District of Illinois to review a judgment which dismissed for want of jurisdiction a bill in a suit sought to be maintained therein on the ground of diverse citizenship. Reversed.

The facts are stated in the opinion.
*Messrs. A. M. Pence, Otto C. Butz,
Amos C. Miller, and Messrs. Lackner,
Butz, & Miller for appellant.

Mr. John C. Mathis and Messrs. Shope,
Mathis, Zane, & Weber for appellees.

Mr. Justice Holmes delivered the opin

ion of the court:

This is a bill in equity brought in the circuit court for the northern district of Illinois by a

more important contracts which purported to be transferred were two between the National Colortype Company and Maas and Fierlein respectively. By the former, Maas was employed as superintendent of the plat making department, and agreed to remain in the company's employment and not to accept employment from others in the business of three-color printing for five years from December 1, 1901, and not to become interested in any way in that business in the United States, east of the Rocky Mountains, or divulge any secrets or processes relating to that business, for ten years from the day mentioned. By the other contract Fierlein was employed as salesman, and agreed to devote his whole time and attention to the interest and business of the company for two years from the same date. There was a similar contract with the defendant Freese, expiring May 1, 1903, but containing a promise by him never to divulge any of the secrets, methods, or practices of the company, and agreeing that his going to work for any others engaged in similar business should be considered breach of the promise just set forth.

The bill alleges that Maas, knowing of the transfer, consented to it, announced his intention of holding the plaintiff to the con

tract with him, remained in its
the same capacity, accepted the stipulated
salary, and was instructed in valuable se-
crets, and that the complainant, by the con-
sent of all parties, became substituted as a
party to the contract in place of the Na-
shorter but similar allegations concerning
tional Colortype Company. There a.re
Fierlein and Freese. An independent con-
which has expired, but it is alleged that by
tract with the defendant Schultz is alleged,
virtue of his employment he also has be
cesses belonging to plaintiff.
come possessed of trade secrets and pro-

Fierlein, while in the plaintiff's employment The bill goes on to allege that Maas and and pay, conspiring with the defendants New Jersey corporation Quetsch and Seibert, got up the defendant against an Illinois corporation and private corporation as a rival to the plaintiff, inpersons, citizens of Illinois. Upon demur- duced the defendants Freese and Schultz rer the bill was dismissed for want of ju- to enter its service, have taken over their risdiction, on the ground, as is certified, that it was a bill to recover the contents own special skill and knowledge of the of a chose in action in favor of an assignee, plaintiff's secrets to the hostile camp, and, the assignors being citizens of Illinois. in short, will ruin the plaintiff if they are The case comes here by appeal. The praypermitted to go on. ers of the bill are for injunctions to pre vent the defendants Maas, Fierlein, Freese, and Schultz assisting the defendant com pany or the defendants Quetsch and Seibert in the three-color printing business, revealing secret processes, etc., until different specified dates. The main ground of the prayers is the contracts to be mentioned, and the question is whether the claim stated by the plaintiff is a claim as assignee.

within the jurisdiction of the court. It is We are of opinion that a case is stated true that the starting point for the relations between the plaintiff and its employees was what purported to be an assignment. It is true that the bill emphasizes this aspect of the case, and states the evidence more accurately than the result. But those cir cumstances do not change the legal conclusion from the facts set forth. The allegaThe plaintiff is the assignee of the assets tions show that, having the old contract beand good will of the National Colortype fore them, the parties came together under Company, the American Three-Color Com- a new agreement, which was determined by pany, Illinois corporations, and the Osborne reference to the terms of that contract, but Company, a New Jersey corporation, and which none the less was personal and imwas formed on March 1, 1902, for the pur- mediate. Maas, Fierlein, and Freese, who

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