has that good faith which enables him to plead prescription.' In Eastman v. Beiller we find this language: "A title defective in point of form cannot be a basis for prescription. By this the law means a title on the face of which some defect appears, and not one that may be proved defective by circumstances or evidence dehors the instrument." In Hall v. Mooring the title of the defendant was a patent from the United States and a deed from one apparently the agent of the heirs of the pat

matter we shall not stop to consider, as it does not seem to have been discussed by counsel. It is enough for the purposes of this case if it be only a "just title." Articles 3481, 3482, and 3484 of the Louisiana Code are as follows: "Article 3481. Good faith is always pre sumed in matters of prescription, and he who alleges bad faith in the possessor must prove it. "Article 3482. It is sufficient if the possession has commenced in good faith; and if the possession should have afterwards been held in bad faith, that shall not prevent the pre-entee. It was objected that the agent did not scription."

"Article 3484. By the term 'just title,' in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property." This matter has been frequently considered by the supreme court of that state. See, among other, the following cases: Carrel v. Cabaret, 7 Mart. O. S. 375, 406; Fort v. Metayer, 10 Mart. O. 8. 436, 439; Dufour v. Camfranc, 11 Mart. O. S. 675. 714, 13 Ain. Dec. 360; Frique v. Hopkins, 4 Mart. N. S. 212, 225; Eastman v. Beiller, 3 Rob. (La.) 220, 223; Hall v. Mooring, 27 La. Ann. 596; Giddens v. Mobley, 37 La. Ann. 417, 419; Barrow v. Wilson, 38 La. Ann. 209, 213; Pattison v. Maloney, 38 La. Ann. 885, 888.

in fact have authority, but, nevertheless, the deed made by him was held sufficient for the purposes of prescription, the court saying: The want of authority in Wright (the agent, to sell the lands is the only defect in defendant's title. If that defect did not exist, his title would be perfect without the help of prescription. The defendant's title is apparently perfect; so is the mandate of Wright. The defect complained of is dehors both acts, and was only made manifest on the trial of this[7 1 case.' In Giddens v. Mobley, a tax deed was shown, and it was held sufficient for the purpose of prescription, the court saying: "Where the deed is perfect in form, and the defense is want of right or authority in the officer to make it and not in the manner of making it, the knowledge that the officer had no right to make the sale is not brought home to the buyer." In Barrow v. Wilson the defendant claimed two tracts, and the title under which he claimed prescription was as to one, a patent from the state for land as swamp land, and the other, a tax deed, and the conclusions were as in the other cases, the court saying, in reference to the patent from the state: Upon its face that muniment of title is transferable of the ownership of the property which it pur

These authorities sufficiently disclose the rule of law recognized in the state of Louisi ana, and, of course, are controlling in the Federal courts. The learned circuit judge deemed that the principles sustained by these decisions were inapplicable on the ground that this land was swamp and overflowed land, and was also within the limits of an incorporated city, and that knowledge of these facts was chargeable to the parties in the chain of title. We quote from the bill of exceptions:

In the first of these cases the court said: "When the law says that a title defective in point of form shall not be the basis of prescription, what does it mean? A title, which, though apparently good, has some latent de fect? Certainly not. A title, which, though apparently clothed with all the formalities reports to convey." quired by law, may be proved defective by extensive evidence? No. It means a title on the face of which the defect is stamped. And 70]why? Because the holder of such a *title cannot pretend that he possesses in good faith; for he is supposed to know the defect of form which his title shows, and cannot plead ignorance of law. But admit latent nullities, unknown in point of fact to the possessor to prevent prescription, and what does good faith avail him? Or, rather, what becomes of the whole doctrine of prescription?" In the sec- "As to Wylie, I charged that his title was a ond: "He who alleges ill faith is bound to the nullity, and, under the undisputed facts in restrictest proof, for the presumption is against lation to the land lying within the city limits, him." In the third case the title relied on was and as to its character being that of swamp a sheriff's deed, and in respect to this the court and overflowed land in 1849 and continuously observed: "The title presented here is perfect afterwards, and under the law forbidding pub as it respects form; it pursues the very words lic lands to be sold when lying within a city's of the statute; the defect is a want of author-limits, and the law of Congress of 1849 donatity in the sheriff to make such a conveyance, not a defect in the manner he made it. As nothing, therefore, appears on the face of the deed which is defective, the knowledge of want of right in the person who sold is not brought home to the vendee, and his error was one of fact, not of law. It is difficult to see where is the difference between this case and an ordinary one of sale, where the purchaser acquires, from a person who has no title, by a regularly executed act before a notary public. In such case the buyer acquires none, but he

ing such swamp and overflowed lands to the state, Wylie is charged with knowledge of such facts and law, and the certificate given to him cannot be taken as a basis for the beginning or recurring in his favor of the prescription of ten years.

"I charged further in relation to testing the good faith of Wylie and vendees Hotchkiss & Tomkies, that they should be charged with such knowledge as is shown to have been in the common knowledge of the men and community of Shreveport, their place of residence,

For the error in these respects the judgment is

as to the land being swamp and overflowed would not be defeated by the subsequent act land in 1849 and continuously thereafter, unless of the state in incorporating the city. It fol72] *the jury from other evidence in the case lows, therefore, that as the receipt, which was should believe otherwise as to such knowledge upon its face sufficient to transfer the full in them; that they should be charged with equitable title to Wylie, did not disclose when knowledge of the fact that the land was in the his rights to the land were initiated, his vendees, city limits by the description of the land in the Hotchkiss & Tomkies, were not chargeable as certificate under which Wylie sold, and which matter of law with knowledge of the fact that was recited in the act of sale to them, and they the land was, at that time, not subject to prebe charged with knowledge of the act limiting emption or homestead. In other words, upon should the swamp and overflowed lands in 1849 the face of the papers a good title was transto the state and of the law forbidding public ferred to Wylie, and the matters upon which lands of the United States lying within city the learned judge relied were not such as of limits to be sold to any one under the home- law the purchasers were charged with knowlstead or general land laws.' edge of. Other circumstances must appear to We think there was error in these instruc-show knowledge and a want of good faith on tions. Neither the fact that this was swamp their part, or else the title presented must be and overflowed land, nor that it was within the held a "just title" upon which to rest the claim limits of the city of Shreveport, appears upon of prescription. the face of the receipt or patent. They are facts dehors those instruments. So far as re-reversed and a new trial ordered. spects the character of the land as swamp and overflowed land, it must be assumed from the statement made by the judge that the testimony but not in the reasons given therefor. showed that it was of such character in 1849 and continuously afterward. It must have been so in 1849 or no title passed to the state; but the fact that it was swamp and overflowed land in 1872 when Wiley entered it as a homestead does not prove that it was of similar character in 1849, nor that the title passed to the state under the Act of Congress. It is a well-known fact that land, by subsidence or elevation or through other causes, in a series of years may change its character, at one time being swamp and overflowed and at another dry upland. If it be conceded that Wylie was charged with knowledge of the fact that in 1872 it was swamp and overflowed, it does not follow that he is also chargeable with knowledge of the fact that twenty years before it was in like condition. No patent or conveyance had been made from the United States to

Mr. Justice White concurs in the judgment,

MASON P. GRAY, Plff. in Err.,

STATE OF CONNECTICUT.
(See S. C. Reporter's ed. 74-77.)

License law.

The imposition of a fine upon a licensed pharmacist under a state law requiring him to procure a druggist's license before he can use spirituous liquors in the preparation of pharmacist's compounds does not violate his rights under the Constitution of the state or the 14th Amendment to the United States Constitution.

Submitted April 4, 1895. Decided June 3, 1895. [No. 258.]

ERROR to the Supreme Court of Errors

the state. No selection or identification of the land as swamp land had ever been made by the land department of the government, and when Wylie's application to enter it as a home-the State of Connecticut to review a stead was recognized in that department he had a right to assume that it was land which did not pass by the Act of 1849 to the state. At least, he is not chargeable as a matter of law with knowledge of its condition in 1849, or 73] that by reason *of such condition it was among the lands granted by Act of Congress

to the state.

With reference to its location within the limits of an incorporated town, even if it be true that Wylie, as the party entering, was charged with knowledge of the territorial limits of the town, and that this tract was within such limits at that time (a matter upon which we deem it unnecessary to express an opinion), it must be borne in mind that neither the receiver's receipt nor the patent disclosed when Wylie first entered upon the land for the purpose of mak ing it his homestead, or when he first initiated his rights in respect thereto. The city was incorporated in 1871, the receiver's receipt was issued in October, 1872. Wylie might have been in occupation of the land years before the incorporation of the city, might have made application to enter it as a homestead before such incorporation, and a right thus initiated

judgment of that court affirming the judg for New London County, in that State, adjudgment of the Criminal Court of Common Pleas ing Mason P. Gray, guilty of violating the statute of that state against the sale of intoxicating liquors without having a license therefor, and sentencing him to pay a fine. Affirmed.

Statement by Mr. Justice Field:

The plaintiff in error was charged before a justice of the peace for the county of New London, in the town of Groton, state of Connecticut, of keeping a place in that town, on the 1st day of January, 1890, and on divers days subsequently, previous to the time of making the complaint, where it was reputed that intoxicating and spirituous liquors were kept for sale; and also of selling on the 1st day of January, 1890, and at divers days between that date and the time of making the complaint, in that town and county, without having a license therefor, to persons to the prosecuting agent unknown, spirituous and

NOTE. As to constitutionality of laws regulating sale of liquors, see note to Foster v. Kansas, 28: 696.

intoxicating liquors, on the premises, in quan- | citizen of the United States, and deprived him tities less than one gallon to be delivered at one time; and also of keeping on the 1st day of January, 1890, and at divers days between that date and the time of making the complaint, at that town and county, without having a license therefor, spirituous and intoxicating liquors with intent to sell the same, all of which acts are alleged to have been done against the peace of the state, to be of evil example and contrary to the statute in such case made and provided.

The plaintiff in error, who was thus charged, 75] was arrested, *and on his plea of not guilty was tried and found guilty before the justice of the peace, and was ordered to pay a fine of eighty dollars and costs, and to stand committed until the judgment was paid.

The accused moved for an appeal from the judgment to the next session of the criminal court of common pleas for New London county, which was granted, to be held on the second Tuesday of September, 1890, at Norwich, the accused then and there to answer the complaint, at which time he appeared, and, a nolle prosequi being entered upon the first count, for his plea to the other counts he said "not guilty." After a full hearing of the cause on a new trial in the criminal court of common pleas the accused was found guilty and sentenced to pay a fine of fifty dollars and the costs of the prosecution, and to stand committed until the judgment was complied with.

Upon the trial in that court the counsel of the appellant contended that the court should charge the jury

1st. That if they found "that the defendant did not sell nor keep with intent to sell, spirituous and intoxicating liquors as such, but kept such liquors to be used in compounding medicines and in dispensing the prescriptions of physicians, it was their duty to acquit

him.'

2d. "That the defendant as a licensed pharmacist had the right to use in the compounding of his medicines and tinctures all ingredients necessary to their proper preparation, whether such ingredients or any of them were spirituous or intoxicating or otherwise."

3d. "That the state having licensed the accused to pursue his business and occupation as a pharmacist, the board of commissioners for New London county could not by any action of theirs deprive him of the right to pursue his said business in all its branches."

of his property without due course of law. But the court refused so to charge the jury, and on the judgment rendered upon the verdict, the case was taken to the supreme court of errors of Connecticut, in which court it was insisted that the court below had erred in instructing the jury that the only question for them to determine was whether the prisoner had complied with the regulations of the law, and in conducting his business had used liquors in compounding prescriptions without having a license therefor from the board of pharmacy and the county commissioners; and that the court had erred in directing the jury that if it was necessary that a man should use liquor in compounding medicines in the state and could not practice the business of druggist without it, then the law made it a prerequisite to obtain, not only a license from the board of pharmacy, but also from the county commissioners; and that the court had erred in not charging that sections 3087 and 3067 were contrary to the provisions of the Constitution of the state and the 14th Amendment of the Constitution of the United States. The court affirmed the judgment, from which the case was brought to this court on writ of error, the plaintiff in error assigning the same errors which were assigned in the supreme court of errors of Connecticut.

Messrs. H. C. Robinson and S. H. Thresher for plaintiff in error.

Mr. Solomon Lucas for defendant in error.

Mr. Justice Field delivered the opinion of the court:

A license to pursue any business or occupation, from the governing authority of any municipality or state, can only be *invoked for[77 the protection of one in the pursuit of such business or occupation, so long as the same continues unaffected by existing or new conditions. The degree of care and scrutiny which should attend the pursuit of the business or occupation practiced will necessarily depend upon the safety and freedom from injurious or dangerous conditions attending the prosecution of the same.

The responsibility of the legal authority, municipal or state, cannot be stipulated or bartered away. Whatever provisions were prescribed by the law previous to 1890, in the use of spirituous liquors in the medicinal preparations of pharmacists, they did not prevent the subsequent exaction of further conditions which the lawful authority might deem necessary or useful.

In the preparation of medicinal compounds, intoxicating liquors and even still more dangerous ingredients are often properly used; but the protecting care of the government, municipal or state, in their use, should never be re4th. That section 3087 of the Revised Stat-laxed beyond the bounds of absolute safety. utes of Connecticut, which declares "that any person who, without having a license therefor, shall sell or exchange, or shall offer or expose for sale or exchange, or shall own or keep with intent to sell or exchange, any spirituous and intoxicating liquors, shall be fined," and section 76] *3067 of such Revised Statutes, which provides "that a license to a druggist shall not be granted unless upon application made in the manner prescribed, and that the granting of such license shall be discretionary with the county commissioners,"-were contrary to the provisions of the 14th Amendment of the Constitution of the United States, because they abridged his privileges and immunities as a

For reasons which were deemed sufficient after 1890 by the authorities of Connecticut, the use of spirituous liquors in the preparation of pharmacists' compounds required still further provisions than those previously existing, and it was provided that such liquors could

not be subsequently used in their preparation | Somerville delivering the opinion. *The [79 without the pharmacist first procuring a drug. importers appealed to the circuit court, and the gist's license from the county commissioners. return of the board was therein duly filed with The imposition by the court of a fine upon the record and evidence taken by them, tothe accused for a disregard of this require- gether with a certified statement of the facts ment trespassed in no way upon any of his involved in the case and their decision thereon. rights under the Constitution of the state or Evidence was taken in the circuit court before the 14th Amendment of the Federal Constitu- one of the general appraisers as an officer of tion. the court, as to the legislative history of the Act of August 28, 1894, from which it appeared:

Judgment affirmed.

Submitted May 20, 1895. Decided June 3, 1895.

Ostat
N A CERTIFICATE from the United
States Circuit Court of Appeals for the Sec
ond Circuit certifying certain questions to this
court for decision as to the Tariff Act of 1894,
on an appeal to that court from a judgment of
the circuit court, deciding that certain imported
merchandise was dutiable under the Tariff Act
of August 28, 1894. The first question answered
in the affirmative, and the second in the nega-

live.

See same case below, 66 Fed. Rep. 742.

"(a) That the bill was introduced in the House of Representatives on December 19, 1893, House bill H. R. 4864.

(b) That it passed the House of Representatives on February 1st, 1894.

(c) That as it then passed the House of Representatives the date in sections 1 and 2 was as follows: On and after the first day of June, 1894, unless otherwise specially provided for in this Act,' etc.

"(d) That the bill was laid before the Senate February 2, 1894, and referred to the Finance Committee.

"(e) That the bill was reported by the Finance Committee on March 20, 1894.

"(f) That sections 1 and 2 of said bill, when so reported, contained the date of the 30th day of June, 1894, instead of the 1st day of June,

1894.

"(g) That said bill as amended by the Senate passed the Senate on July 3, 1894.

(h) That when it passed the Senate the date contained in the first and second sections thereof was August 1, 1894, instead of the 30th day of June, 1894.

finally passed the House on August 13, 1894, (2) That the bill as amended in the Senate without change, after a long discussion and deliberation by the committees of conference.

Statement by Mr. Chief Justice Fuller: Burr & Hardwick, importers, made an importation of cotton laces, per The La Na-ident of the United States. varre, from Havre. The vessel arrived on August 7, 1894, and the goods were entered by them for consumption at the port of New York on August 8, 1894. Duty thereon was levied and assessed by the collector of customs at sixty per cent ad valorem under the pro visions of schedule J, paragraph 373, of the Tariff Act of October 1, 1890, which was then in force. The duty was paid by the importers on August 8. and the goods were delivered to them on August 11, 1894. On August 28, 1894, the entry of the merchandise was liquidated at the customhouse as entered, that is to say, without any change of the duties from those assessed at the time of entry.

") That on August 15, 1894, having reof both Houses, the bill was sent to the Presceived the signatures of the presiding officers

"(k) That on August 28, 1894, the bill was sent by the President to the Secretary of State, and the following indorsement was made thereon:

On that day the Tariff Act of that year became a law, and on September 7, 1894, the importers filed their protest, claiming that said cotton laces were dutiable at fifty per cent ad valorem under paragraph 276 of schehule J of the Act of August, 1894, and were not duti able under the Act of October 1, 1890.

The board of general appraisers affirmed the decision of the collector, General Appraiser

NOTE.-As to lien of United States for duties, see As to action to recover back duties paid under protest; protest, how made, and its effect, see note to Greely v. Thompson, 13: 397.

note to United States v. 350 Chests of Tea, 6: 702.

82

foregoing Act, having been presented to the "Note by the Department of State.-The President of the United States *for his ap [80 the House of Congress in which it originated proval, and not having been returned by him to within the time prescribed by the Constitution of the United States, has become a law without his approval.

ation, to Provide Revenue for the Government, and for Other Purposes.

"H. R. No. 4864.-An Act to Reduce Tax

'August 28, 1894.'"

It was stipulated in the circuit court that tho persons composing the firm of Burr & Hardwick, the importers, were James M. Burr and Charles C. Hardwick; that the merchandise in controversy consisted of "cotton laces;" that October 1, 1890, was dutiable at sixty per cent the merchandise, if dutiable under the Act of ad valorem under the provision for cotton laces that Act; and that if the merchandise was ducontained in paragraph 373 of schedule J of tiable under the Act of August 28, 1894, it was dutiable at fifty per cent ad valorem under the provision for cotton laces in paragraph 276 of

schedule J of the latter Act. The cause thereafter came on to be tried in the circuit court, and the judge holding that court, after hearing the argument, gave an opinion Jan uary 15, 1895, 66 Fed. Rep. 742, reversed the decision of the board of general appraisers, and entered judgment January 16, 1895, hold ing that there was error in the decision of the board of general appraisers, and that the mer-utes as amended by the Act approved Febchandise was properly dutiable as cotton laces at fifty per cent ad valorem under paragraph 276 of schedule J of the Act of August 28, 1894, and that the entry be reliquidated accordingly. From this judgment or decree an appeal was taken to the circuit court of appeals for the second circuit, and thereupon that court, desiring the instruction of this court, made its certificate, embodying the foregoing facts, and submitting the following questions:

"(1) Should the assessment for duty of the merchandise described in the foregoing state ment of facts, under paragraph 373 of the Act of October 1st, 1890, be sustained, notwith-tion, and delivered after August 1 and before standing the provisions of the Tariff Act of August 28, 1894?