Hall v. Chicago, R. I. & P. Ry. Co., 149 Fed. Rep. 564; Howerton v. Southern Ry. Co., 101 N. E. Rep. 121; Ill. Cent. R. R. Co. v. Kentucky, 218 U. S. 551; Jones v. C. & O. R. Co., 149 Kentucky, 566; Ky. Union Co. v. Kentucky, 219 U. S. 140; Kleps v. Bristol Mfg. Co., 189 N. Y. 516; Leathe v. Thomas, 207 U. S. 93; Mallett v. North Carolina, 181 U. S. 589; McKay v. Kalyton, 204 U. S. 458; Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1; Nor. Car. R. R. Co. v. Zachary, 232 U. S. 248; Nutt v. Knut, 200 U. S. 12; Payne v. N. Y. &c. R. Co., 201 N. Y. 436; Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436; Powell v. Brunswick County, 150 U. S. 440; St. Louis &c. R. Co. v. Seale, 229 U. S. 156; St. Louis &c. R. Co. v. McWhirter, 229 U. S. 265; Troxell v. Del., L. & W. R. Co., 227 U. S. 434; Vandalia R. Co. v. South Bend, 207 U. S. 359.

MR. JUSTICE Van Devanter delivered the opinion of the court.

This was an action against a railroad company to recover for a personal injury sustained by the plaintiff through the negligence of the company while he was employed as a switchman in its railroad yard in Cook County, Illinois. The action was brought in the Superior Court of that county, and a trial to the court and a jury resulted in a verdict and judgment for the plaintiff. The judgment was affirmed by the Appellate Court for that district (180) Ill. App. 511), which was the highest court of the State in which a decision of the case could be had, and this writ of error was then sued out by the company. By a motion to dismiss the writ our jurisdiction to review the judgment is challenged. Shortly stated, the facts bearing upon disposition of the motion are these:

the

The plaintiff's declaration alleged that the injury occurred while the defendant was engaged, and while the plaintiff was employed by it, in interstate commerce. The

other allegations were such that, with that one, they stated a good cause of action under the Federal Employers' Liability Act, April 22, 1908, 35 Stat. 65, c. 149, and, without it, they stated a good cause of action under the common law prevailing in the State. There was a plea of not guilty; and upon the trial, the proof failing to show that the injury occurred in interstate commerce, the court, at the defendant's request, instructed the jury that the Federal Employers' Liability Act had no application to the case. Then, over the defendant's objection, the court treated the allegation respecting interstate commerce as eliminated, and submitted the case to the jury as one controlled by the common law prevailing in the State. The plaintiff recovered under that law. In the Appellate Court the defendant contended that, even though the allegation that the injury occurred in interstate commerce proved unwarranted, the declaration could not be treated, consistently with the Federal act, as affording any basis for a recovery under the law of the State, common or statutory. But the court held otherwise and sustained the recovery under the state law. Whether that ruling operated as a denial of a right or immunity to which the defendant was entitled under the Federal act is the question, and the only question, sought to be presented by the assignments of error.

Had the injury occurred in interstate commerce, as was alleged, the Federal act undoubtedly would have been controlling and a recovery could not have been had under the common or statute law of the State; in other words, the Federal act would have been exclusive in its operation, not merely cumulative. Mondou v. New York, New Haven & Hartford Railroad Co., 223 U. S. 1, 53-55; St. Louis &c. Railway Co. v. Seale, 229 U. S. 156, 158; North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 256; Seaboard Air Line Railway v. Horton, 233 U. S. 492. On the other hand, if the injury occurred outside of interstate

commerce, the Federal act was without application and the law of the State was controlling. Illinois Central Railroad Co. v. Behrens, 233 U. S. 473. That the injury did occur outside of interstate commerce was declared in the court's instruction to the jury, and the defendant, having requested the instruction, is bound by it. It therefore must be taken as settled that the right of recovery arose under the state law.

The plaintiff asserted only one right to recover for the injury, and in the nature of things he could have but one. Whether it arose under the Federal act or under the state law, it was equally cognizable in the state court; and had it been presented in an alternative way in separate counts, one containing and another omitting the allegation that the injury occurred in interstate commerce, the propriety of proceeding to a judgment under the latter count, after it appeared that the first could not be sustained, doubtless would have been freely conceded. Certainly, nothing in the Federal act would have been in the way.

Instead of presenting his case in an alternative way, the plaintiff so stated it as to indicate that he was claiming only under the Federal act. And when the proofs demonstrated that the injury arose outside of interstate commerce and therefore that no recovery could be had under the Federal act, the court was confronted with the question whether the declaration could be amended, or regarded as amended, to conform to the proofs. Holding that this could be done, the court treated the mistaken allegation that the injury occurred in interstate commerce as eliminated. Therein the court merely gave effect to a rule of local practice, the application of which was not in anywise in contravention of the Federal act. See Mondou v. New York, New Haven & Hartford Railroad Co., supra, pp. 56-57.

It follows that the contention that the defendant was denied a right or immunity to which it was entitled under

See

the Federal act is not only untenable but so devoid of color as to furnish no basis for this writ of error. Sawyer v. Piper, 189 U. S. 154.

As it is not claimed that by reason of the shifting from one law to the other the defendant was cut off from presenting any defense which was open only under the latter, or that the course taken by the plaintiff deprived the defendant of a right of removal otherwise existing, we intimate no opinion in either connection.

Writ of error dismissed.

OCAMPO v. UNITED STATES.

ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 270. Argued March 12, 13, 1914.-Decided May 25, 1914.

Section 2 of act No. 612 of the Philippine Commission of February 3, 1903, providing that in cases triable before the Court of First Instance in the City of Manila the accused should not be entitled as of right to a preliminary examination in any case in which the prosecuting attorney after due investigation shall have presented an information against him, necessarily operated to repeal inconsistent provisions previously in force in the City of Manila.

The Philippine Bill of Rights, as contained in § 5 of the act of July 1, 1902, contains no specific requirement, such as is contained in the Fifth Amendment, of a presentment or indictment by grand jury, nor is such a requirement included within the guaranty of due process of law.

The guaranty of equal protection of the law in the Philippine Bill of Rights does not require territorial uniformity. It is not violated if all persons within the territorial limits of their respective jurisdictions are treated equally.

Section 2 of Act No. 612 is not in conflict with that paragraph of § 5 of the act of July 1, 1902, which provides that no warrant shall issue but upon probable cause supported by oath or affirmation; a pre

Opinion of the Court.

234 U.S.

liminary investigation by the prosecuting attorney upon which he files a sworn information is a compliance with such provision. A finding of probable cause for arrest by a prosecuting attorney is only quasi-judicial; and a statute, otherwise valid, is not invalidated by delegating the duty of investigation to a prosecuting attorney. On the evidence in this case the trial court properly held that the defendant was, under the law of the Philippine Islands, the responsible proprietor of the newspaper which published the libel on which the prosecution was based.

The appellate jurisdiction of the Supreme Court of the Philippine Islands is not confined to errors of law but extends to a review of the whole case. It has power to reverse the judgment of the Court of First Instance in a criminal case and find the accused guilty of a higher crime and increase the sentence. Trono v. United States, 199 U. S. 521.

18 Philippine, 1, affirmed.

THE facts, which involve the validity of a judgment of the Supreme Court of the Philippine Islands in a prosecution for criminal libel and the validity of Act No. 612 of the Philippine Commission, are stated in the opinion.

Mr. William R. Harr, with whom Mr. Clement L. Bouve was on the brief, for plaintiffs in error.

The Solicitor General for the United States.

MR. JUSTICE PITNEY delivered the opinion of the court.

On November 5, 1908, an information was filed in the Court of First Instance of the City of Manila, charging plaintiffs in error, with others, as editors, proprietors, owners, directors, writers, managers, administrators, printers, and publishers of the newspaper "El Renacimiento," with publishing in that city a libel against Dean C. Worcester, then a member of the Philippine Commission. The information was subscribed and sworn to by the acting prosecuting attorney, and appended to it, and likewise sworn to by him, was the following declara