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an important class of cases which it was, as well as in the construction, of vessels, intended to reach. The language of the are largely extensions of the local mestatute affords no basis for the latter as-chanics' lien laws applicable to buildsertion, and the Reports of the Committees ings.3 of Congress (Senate Report, No. 831, The Coal Company also urges upon our Sixty-first Congress, Second Session) attention The Yankee, 147 C. C. A. 593, show that it is unfounded. Those reports 233 Fed. 919, 925, 927. There the court, state that the purpose of the act was this: in sustaining a maritime lien, declared First, to do away with the artificial dis- that the supplies were delivered not to the tinction by which a maritime lien was charterer, but to the vessel; holding that given for supplies furnished to a vessel “a materialman may make actual delivin a port of a foreign country or state, ery of supplies to a vessel in the maribut denied where the supplies were fur- time sense by causing them to be transnished in the home port or state. The ported by rail and water carriers by General Smith, 4 Wheat. 438, 4 L. ed. interrupted stages from point of origin to 609. Second, to do away with the doc- the vessel side, when the transaction is betrine that when the owner of a vessel con- gun by a valid order indicating that the tracts in person for necessaries, or is pres- supplies are for the vessel and are to be ent in the port when they are ordered, it delivered to her, and is completed by an is presumed that the materialmen did not actual delivery to the vessel, [13] conintend to rely upon the credit of the ves- sistent with the instructions of the sel, and that hence, no lien arises. The order and intentions of the parties St. Jago de Cuba, 9 Wheat. 409, 6 L. giving and accepting it." And in ed. 122. Third, to substitute a single Fed- respect to the coal supplied, the court eral statute for the state statutes in so there found specifically that "the quanfar as they confer liens for repairs, sup-tity to be supplied to and daily conplies, and other necessaries. Peyroux v. sumed by the Yankee was mentioned Howard, 7 Pet. 324, 8 L. ed. 700. The and considered by the parties. reports expressly declare that the bill In the case at bar there was makes "no change in the general prin- understanding when the contract ciples of the law of maritime liens, but made, or when the coal was delivered by merely substitutes a single [12] stat- the libellant, that any part of it was for ute for the conflicting state statutes." any particular vessel, or even for the vesThe act relieves the libellant of the sels then composing the fleet. And it was burden of proving that credit was clearly understood that the purchasing given to the ship when necessaries corporation would apply part of the coal are furnished to her upon order of to a nonmaritime use. The difficulty here the owner, but it in no way lessens (unlike that presented in The Vigilancia, the materialman's burden of proving that 58 Fed. 698; The Cimbria, 156 Fed. 378, the supplies in question were furnished to 382; and The Curtin, 165 Fed. 271) is her by him upon order of the owner, or not in failure to show that the coal was of someone acting by his authority. The furnished to the vessels, but in failure to maritime lien, is a secret one. It may prove that it was furnished by the libeloperate to the prejudice of prior mort- lant. gagees or of purchasers without notice. It was also argued that the parties made It is therefore stricti juris, and will not an express agreement that the Coal Combe extended by construction, analogy, or pany should have a lien; that is, that they inference. Vandewater v. Mills, 19 How. created by agreement a nonstatutory lien. 82, 89, 15 L. ed. 554, 556; The Cora P. The concurrent findings of fact by the White, 243 Fed. 246, 248.

lower courts, which we accept (Baker v. The Coal Company relies strongly upon Schofield, 243 U. S. 114, 118, 61 L. ed. The Kiersage, 2 Curt. C. C. 421, Fed. | 626, 630, 37 Sup. Ct. Rep. 333; La Cas. No. 7,762, and Berwind-White Coal Bourgogne (Deslions v. La Compagnie Min. Co. v. Metropolitan S. S. Co. 166 Générale Transatlantique) 210 U. S. 95, Fed. 782, 97 C. C. A. 477, 173 Fed. 171. 114, 52 L. ed. 973, 983, 28 Sup. Ct. Rep. The language of the state statutes there 664; The Germanic (Oceanic Steam Nav. under consideration differs from that of Co. v. Aitken) 196 U. S. 589, 595, 49 the Federal act. Furthermore, the state L. ed. 610, 613, 25 Sup. Ct. Rep. 317), legislation creating liens for work and ma- are to the contrary. terials furnished in the repair and supply, Affirmed. v. Brian, 2 How. (Miss.) 874, 881; Mon- Materialmen's Liens on Vessels," 21 Harvard tandon v. Deas, 14 Ala. 33, 44; Mochon v. L. Rev. 332, and "The New Federal Statute Sullivan, 1 Mont. 470, 473.

Relating to Liens on Vessels,” 24 Harvard 3 See “Confusion in the Law Relating to L. Rev. 182, both by Fitz-Henry Smith, Jr.

V.

(14) STATE OF MINNESOTA, Com 4. A commission, consisting of Samplainant,

uel S. Gannett, of Washington, District

of Columbia, William B. Patton, of DuSTATE OF WISCONSIN, Defendant. luth, Minnesota, and John G. D. Mack,

of Madison, Wisconsin, competent per(See S. C. Reporter's ed. 14-16.)

sons, is here and now appointed by the [No. 13, Original.]

court to run, locate, and designate the

boundary line between said states along M OTION for the appointment of a

that portion of said bay and river herecommission to run the boundary | tofore described in this decree, and to line submitted October 5, 1920. Grant- locate said boundary line by proper ed October 11, 1920.

monuments, courses, and distances, as

fixed by the court in this decree. Mr. H. C. Fulton for the motion,

5. Before entering upon the discharge

of their duties each of said commissionOrder announced by Mr. Chief Jus- ers shall be duly sworn to perform tice White:

faithfully, impartially, and without This cause came on to be heard by prejudice or bias, the duties herein imthis court, on the motions and sugges- posed, said oaths to be taken before tions of counsel for the respective par- the clerk of this court, or before the ties, for the appointment of a commis- clerk of any district court of the Unitsion to run, locate, and designate the ed States, or before an officer authorboundary line between the state of Min-ized by law to administer an oath in nesota and the state of Wisconsin, as the state of Minnesota or the state of indicated in the opinion of this court, Wisconsin, and returned with their redelivered on the 8th day of March, A. D. port. Said commissioner is authorized 1920 (252 U. S. 273, 64 L. ed. 558, 40 and empowered to make examination of Sup. Čt. Rep. 313], and thereupon and the territory in question, and to adopt on consideration thereof,

all ordinary and legitimate methods of It is ordered, adjudged, and decreed survey in the designation of the true loas follows:

cation of said boundary line fixed by 1. That the true boundary line be- the decree, to examine and consider tween the complainant and the defend- carefully the opinion of this court deant in and through Lower St. Louis bay, livered on March 8, 1920, the said MinUpper St. Louis bay, and the St. Louis nesota's Exhibit 1, being the Meade river, from Upper St. Louis bay to the chart, or a certified copy thereof; and “falls” in the said river, is as herein- said commission shall do all other matafter specified.

ters necessary to enable it to discharge 2. That said boundary line must be its duties and to obtain the end to be ascertained upon a consideration of the accomplished conformably to this desituation existing in 1846, and accurately described by the Meade chart,

[16] 6. It is further ordered that more specifically hereinafter referred should any vacancy or vacancies occur to.

in said board of commissioners by rea3. That said boundary line runs from son of death, refusal to act, or inability a point midway between Rice's point to perform the duties required by this and Connor's point, through the middle decree, the Chief Justice of this court is of Lower St. Louis bay to and with the thereby authorized and empowered to deep channel leading to Upper St. Louis

appoint another commissioner or bay, and to a point therein immediately missioners to supply such vacancy or south of the southern extremity of vacancies, the Chief Justice acting upGrassy point, thence westward along

on such information in the premises as the most direct (15) course through may be satisfactory to him. water not less than 8 feet deep east

7. It is further ordered that said ward of Fishermen's island, as indi. cated by the red trace A-B-C on Minne. commissioners proceed with all sota's Exhibit No. 1 (said Exhibit 1 be. venient despatch to discharge their du

ties conformably to this decree. ing the Meade chart offered and received in evidence in this suit, and now

8. It is further ordered that the a part of the record), approximately 1 clerk of this court shall forward at once mile to the deep channel, and immedi- to the governor of each of said states ately west of the bar therein, thence of Minnesota and Wisconsin, and to with such channel north and west of each of the commissioners hereby apBig island up stream to the "falls." pointed, a copy of this decree and of

eree.

com

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the opinion of this court, delivered in a suit against a telegraph company to herein March 8, 1920, duly authenti- recover for mental suffering due to a miscated,

take in the transmission of a telegram to 9. Said commissioners shall make a graph company in transmitting the mes

show the motive, if material, of the telereport of their proceedings under this sage between two points in the same stato decree as soon as practicable on or be- over a route passing through another state. fore the 1st day of May, 1921, and shall (For other cases, see Evidence, II. e. 5. in return with their report an itemized

Digest Sup. Ct. 1908.) statement of services performed and

Telegraphs messages - mode of trans

mission. expenses incurred by them in the per

3. Any liability to the addressee of a formance of their duties.

telegram which might arise because of the 10. All other matters are reserved motive with which the telegraph company until the coming in of said report, or transmitted the message between two points until such time as matters pertaining to in the same state over a route passing this cause shall be properly presented through another state would not be a liato this court for its consideration.

bility for an intrastate transaction that never took place, but for the unwarranted conduct of the company and the resulting loss.

[For other cases, see Telegraphs, II. In Digest (17) WESTERN UNION TELEGRAPH Sup. Ct. 1908.) COMPANY, Petitioner,

[No. 241.) ADDIE SPEIGHT.

Argued October 12, 1920. Decided October (See S. C. Reporter's ed. 17-19.)

25, 1920. Damages - mental anguish - interstate ON

N WRIT of Certiorari to the Supreme telegram.

Court of the State of North Carolina 1. The transmission of a telegram be- to review a judgment which, reversing a tween two points in the same state over a judgment of the Superior Court for Haliroute passing out of the state was none fax County, in that state, directed the the less interstate, so as to prevent the ap. entry of a judgment for plaintiff in a plication of the rule of the local law per: suit against a telegraph company to remitting a suit to recover damages for mental anguish because of mistake in cover damages for mental anguish due to delivery, although it would have been phys. a mistake in the transmission of a teleically possible to send the message over a gram. Reversed. route lying wholly within the state, the See same case below, 178 N. C. 146, course adopted being more convenient and 100 S. E. 351. less expensive for the telegraph company. The facts are stated in the opinion. [For other cases, see Damages, "VI. 9: Com. merce, 1. 6. in Digest Sup. ct. 1908.j

Mr. Rush Taggart argued the cause, Evidence - burden of proof motive. 2. The burden rests upon the plaintiff Walter E. Daniel, Charles W. Tillett, and

and, with Messrs. Francis R. Stark, Note.-As to routing of telegram- Thomas C. Guthrie, filed a brief for pesee note to Western Ŭ. Teleg. Co. v. titioner: Alford, 50 L.R.A.(N.S.) 94.

The question raised in this case has As to damages against telegraph already been foreclosed in this court in company for error in sending message, favor of the petitioner. or for not delivering the same-see note Western U. Teleg. Co. v. Texas, 105 to Primrose v. Western U. Teleg. Co. U. S. 460, 26 L. ed. 1067; Hanley v. 38 L. ed. U. S. 883.

Kansas City Southern R. Co. 187 U. S. As to recovery of damages for mental 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214; anguish in telegraph cases-see note to Western U. Teleg. Co. v. Boegli, 251 U. Western U. Teleg. Co. v. Chouteau, 49 S. 315, 64 L. ed. 281, 40 Sup. Ct. Rep. L.R.A.(N.S.) 206.

167; Kirmeyer v. Kansas, 236 U. S. 568, On transportation or transmission be- 59 L. ed. 721, 35 Sup. Ct. Rep. 419. tween points in the same state over a However, if we should disregard all route part of which is in another state, of these decisions of this court, and as interstate commerce-see notes to ask this court to consider the question Missouri, K. & T. R. Co. v. Leibengood, in the case at bar de novo, the conclu28 L.R.A.(N.S.) 985; Bateman v. West- sion in favor of the petitioner's contenern U. Teleg. Co. L.R.A.1918A, 805; tion is equally irresistible. Campbell v. Chicago, M. & St. P. R. Co. Western U. Teleg. Co. v. Mahone, 120 17 L.R.A. 443; and Hanley v Kansas Va. 422, 91 S. E. 157; Western U. Teleg. City S. R. Co. 47 L. ed. U. S. 333. Co. v. Lee, 174 Ky. 210, 192 S. W. 70,

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Ann. Cas. 1918C, 1026, 15 N. C. C. A. 1; that the message was sent out of North Berg v. Western U. Teleg. Co. 110 S. C. Carolina into Virginia for the purpose 169, 96 S. E. 248; Davis v. Western U. of fraudulently evading liability under Teleg. Co. 198 Mo. App. 692, 202 S. W. the law of North Carolina, and gave the 292; Western U. Teleg. Co. v. Bowles, plaintiff a verdict. The presiding judge 124 Va. 730, 98 S. E. 645; Taylor v. then set the verdict aside “as a matter Western U. Teleg. Co. 199 Mo. App. of law," and ordered a nonsuit. But, on 624, 204 S. W. 818; Kirmeyer v. Kan- appeal, the supreme court of the state sas, 236 U. S. 568, 59 L. ed. 721, 35 Sup. set aside the nonsuit, and directed that Ct. Rep. 419; Western U. Teleg. Co. v. a judgment be entered on the verdict. Kaufman, Okla. 162 Pac. 708; We are of opinion that the judge preKlippel v. Western U. Teleg. Co. 106 siding at the trial was right, and that the Kan. 6, 186 Pac. 993; Western U. Teleg. supreme court was wrong. Even if there Co. v. Bushnell,

Ind. App.

128 had been any duty on the part of the N. E. 49.

Telegraph Company to confine the transWhere a Federal right is brought in mission to North Carolina, it did not do question, and it is contended that this so.

The transmission of a message Federal right is supported by the undis- through two states is interstate computed evidence in the case, it then be- merce as a matter of fact. Hanley v. comes the duty of the court to examine Kansas City Southern R. Co. 187 U. S. into the evidence.

617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214. Creswill v. Grand Lodge, K. P. 225 The fact must be tested by the actual U. S. 246, 56 L. ed. 1074, 32 Sup. Ct. transaction. Kirmeyer v. Kansas, 236 Rep. 822; North Carolina R. Co. v. U. S. 568, 572, 59 L. ed. 721, 724, 35 Sup. Zachary, 232 U. S. 248, 58 L. ed. 591, Ct. Rep. 419. 34 Sup. Ct. Rep. 305, Ann. Cas. 1914E, As the line was arranged and had been 159, 9 N. C. C. A. 109; Kinzell v. Chi- arranged for many years, ever since cago, M. & St. P. R. Co. 250 U. S. 130, Roanoke Rapids had been an independ63 L. ed. 893, 39 Sup. Ct. Rep. 412; ent office, Richmond was the relay point Philadelphia, B. & W. R. Co. v. Smith, from [19] Greenville to the latter 250 U. S. 101, 63 L. ed. 869, 39 Sup. Ct. place. The message

went through Rep. 396.

Weldon, North Carolina, and was telNo brief was filed for respondent.

egraphed back from Richmond, as

Weldon business also was. It would have Mr. Justice Holmes delivered the opin- been possible, physically, to send direct ion of the court:

from Weldon, but would have required a This is a suit brought in a state court rearrangement of the wires and more by the respondent against the petitioner, operators. The course adopted was more the Telegraph Company, to recover (18) convenient and less expensive for the for mental suffering caused by a mistake company, and there was nothing to show in delivering a telegraphic message. The

motives except the facts. As things were, message handed to the defendant was, The court below did not rely primarily

the message was sent in the quickest way. "Father died this morning. Funeral tomorrow, 10:10 A. m.," and was dated upon the finding of the jury as to the January 24. As delivered to the plain that when, as here, the termini were in

purpose of the arrangement, but held tiff on January 24, it was dated January the same state, the business was intra23, and thus caused her to fail to attend state unless it was necessary to cross the the funeral, which otherwise she would territory of another state in order to have done. The message

was from

reach the final point. This, as we have Greenville, North Carolina, to Rosemary, in the same state, and was transmitted said, is not the law. It did, however,

lay down that the burden was on the from Greenville through Richmond, Virginia, and Norfolk, to Roanoke Rapids, “was not done to evade the jurisdiction

company to show that what was done the delivery point for Rosemary. This

of the state." If the motive were maseems to have been the route ordinarily used by the company for years, and the terial

, as to which we express no opincompany defends on the ground that the ion, this again is a mistake. The burden message was sent in interstate com- was on the plaintiff to make out her merce, and that therefore a suit could case. Moreover, the motive would not not be maintained for mental suffering have made the business intrastate. If alone. Southern Exp. Co. v. Byers, 240 the mode of transmission adopted had U. S. 612, 60 L. ed. 825, L.R.A.1917A, 197, been unreasonable as against the plain36 Sup. Ct. Rep. 410. The jury found tiff, a different question would arise; but

V.

ment.

in that case the liability, if it existed, | Appeal from District of Columbia would not be a liability for an intrastate court of appeals - constitutionality of transaction that never took place, but

local statute. for the unwarranted conduct and the re- of the District of Columbia in a case in

2. A judgment of the court of appeals sulting loss.

which the constitutional power of Congress Judgment reversed.

to enact a local statute is drawn in ques.

tion is reviewable in the Federal Supreme Mr. Justice Pitney concurs in the re- Court on writ of error or appeal under the sult.

Judicial Code, $ 250, which in express terms confers power on the latter court to review

judgments of the District of Columbia court [20] JOHN C. HEALD, George E. Ham- in cases involving the construction or ap:

ilton, and Wilton J. Lambert, Commit- plication of the Constitution of the United tee of the Person and Estate of Eugene States, or the constitutionality of any law Peters, Petitioners,

of the United States."
(For other cases, see Appeal and Error, III. c,

5, in Digest Sup. Ct. 1918 Supp.)
DISTRICT OF COLUMBIA.

Statutes construction re-enact(See S. C. Reporter's ed. 20-23.)

3. Where provisions of a statute had,

previous to their re-enactment, a settled Cases certified from District of Co

significance, that meaning will attach to lumbia courts other remedy.

1. The court of appeals of the District them in the absence of plain implication to of Columbia is without power to certify (For other cases, see Statutes, iv. in Digest questions to the Federal Supreme Court in Sup. Ct. 1908.) a case in which the judgment or decree of such court of appeals would be reviewable

[No. 300.) by the Federal Supreme Court on writ of error or appeal.

Argued October 18, 1920. Decided Novem(For other cases, see Cases Certified, 1. in Digest Sup. Ct. 1908.)

ber 8, 1920. Note.-On cases certified in the Fed-, 326; Anthony v. State, 29 Ala. 27; eral courts-see note to Webster v. Bank of Mobile v. Meagher, 33 Ala. 622; Cooper, 13 L. ed. U. S. 325.

O'Byrnes v. State, 51 Ala. 25; Ex parte On sending up case to Federal Su- Matthews, 52 Ala. 51; Woolsey v. Cade, preme Court by certificate-see note to 54 Ala. 378, 25 Am. Rep. 711; HuddlesBaltimore & O. R. Co. y. Interstate ton v. Askey, 56 Ala. 218; Barnewall v. Commerce Commission, 54 L. ed. U. S. Murrell, 108 Ala. 366, 18 So. 831; 164.

White v. The State, 134 Ala. 197, 32 So. On appellate jurisdiction of Federal 320; Bruce v. Sierra, 175 Ala, 517, 57 Supreme Court over District of Colum- So. 709, Ann. Cas. 1914D, 125; Reybia courts-see note to United States ex nolds v. Lee, 180 Ala. 76, 60 So. 101; rel. Taylor v. Taft, 51 L. ed. U. S. 269. Mobile County v. Williams, 180 Ala. Construction of re-enacted statute.

639, 61 So. 963; Ex parte Pepper, 185

Ala. 284, 64 So. 112; Brown v. GayThe rule seems to be well settled that Padgett Hardware Co. 186 Ala. 561, 65 the re-enactment in the same or sub- So. 333; Donahoo Horse & Mule Co. v. stantially the same terms, of a statute Durick, 193 Ala. 456, 69 So. 545; Harwhich has received a judicial construc- rington v. State, 200 Ala. 480, 76 So. tion, amounts to a legislative adoption 422; Moragne v. State, 201 Ala. 388, 78 of such construction. United States v. So. 450; Compton v. Marengo County Falk, 204 U, S. 142, 51 L. ed. 411, 27 Bank, 203 Ala. 129, 82 So. 159; Dawsey Sup. Ct. Rep. 191; Copper Queen Consol. v. Kirven, 203 Ala. 446, 7 A.L.R. 1658, Min. Co. v. Territorial Bd. of Equaliza- 83 So. 338; McKenzie v. State, 11 Ark. tion, 206 U. S. 474, 51 L. ed. 1143, 27 | 594; State Commission in Lunacy v. Sup. Ct. Rep. 695; Bruce v. Tobin, 245 Welch, 154 Cal. 775, 99 Pac. 181; U. S. 18, 62 L. ed. 123, 38 Sup. Ct. Rep. Lightner Min. Co. v. Lane, 161 Cal. 689, 7; The Devonshire, 13 Fed. 39; Stevir- 120 Pac. 771, Ann. Cas. 1913C, 1093; mac Oil & Gas Co. v. Smith, 259 Fed. Lindsay-Strathmore Irrig. Dist. v. Su650; United States v. Southern P. Co. perior Ct. Cal. 187 Pac. 1056; 230 Fed. 270; Lincoln v. United States, Western Lumber & Pole Co. v. Golden, 49 Ct. Cl. 300; Hope v. State, 5 Ala. , 22 Colo. App. 209, 124 Pac. 584; Harvey App. 123, 59 So. 326; Jones v. State, v. Travelers’ Ins. Co. 18 Colo. 354, 32 10 Ala. App. 152, 65 So. 411; Goldberg Pac. 935; Hoxie v: New York, N. H. & & Lewis v. Stone, 10 Ala. App. 485, 65 H. R. Co. 82 Conn. 352, 73 Atl. 754, 17 So. 454; Duramus v. Harrison, 26 Ala. Ann. Cas. 324; Wilmington City R. Co. v.

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