V. (See S. C. Reporter's ed. 106-108.) Judgment-full faith and credit. act, May 2, 1890, chap. 182, § 9 (26 Stat. at *NORTHERN ASSURANCE COMPANY OF [106] L. 85, 86), this is provided for, and by § 10 LONDON, Plff. in Err., such offenses shall be tried in the county to which the territory "shall be attached." It GRAND VIEW BUILDING ASSOCIATION. is argued that there had been no law passed changing the place of trial or affecting the order of the supreme court attaching the territory to Canadian county. But the very words quoted from § 10 look to the state of things at the time of trial. At that time Comanche county had been organized, and a term of court fixed for it by the order of the supreme court dated January 15, 1902. The [105]meaning of this order, so far as the power of the supreme court went, is plain. The statute gave the petitioner no vested right to be tried in Canadian county, and his trial in Comanche county conformed to its intent. See Post v. United States, 161 U. S. 583, 40 L. ed. 816, 16 Sup. Ct. Rep. 611. The fourth ground is that, as the crime was committed on August 4, 1901, two days before the opening of the land for settlement, the place was still under the exclusive jurisdiction of the United States, and therefore the crime was punishable under Rev. Stat. § 5339, U. S. Comp. Stat, 1901, p. 3627, alone. The order of the President with regard to the conditions of settlement and entry are referred to as confirming the argument. But those orders were intended 1. A judgment of the Supreme Court of the United States to the effect that a policy of fire insurance could not be recovered upon as it stood nor be helped out by any doctrine and credit by an adjudication of a state of the common law is not denied full faith court that such judgment is not a bar to a suit in equity to reform the policy so that it will express consent to concurrent insurance, and to recover upon such policy as reformed. Election of remedies. 2. The prosecution of an action at law upon a policy of fire insurance to final judg that the policy could neither be recovered ment denying recovery, upon the ground upon as it stood nor be helped out by any doctrine of the common law, is not an elec tion which bars a suit in equity to reform the policy so that it will express consent to concurrent insurance, and to recover upon such policy as reformed. [No. 40.] vember 5, 1906. merely to carry out the acts of Congress Argued October 18, 19, 1906. Decided No- as settlement was concerned. But there is IN ERROR to the Supreme Court of the equally little doubt that the title to the territory had passed, that it had become part of the territory of Oklahoma, and, as such, no longer under the exclusive jurisdiction of the United States within Rev. Stat. § 5339. Act of May 2, 1890, chap. 182, $$ 1, 4, 6, 26 Stat. at L. 81; act of June 6, 1900, chap. 813, 31 Stat. at L. 677; act of March 3, 1901, chap. 846, 31 Stat. at L. 1093. See Bates v. Clark, 95 U. S. 204, 24 L. ed. 471; Buster v. Wright, 68 C. C. A. 505, 135 Fed. 947, 952; Ex parte Moran, 144 Fed. 594, 602. Therefore the application of the territorial statute was not excluded and the murder was a violation of the territorial law. Finally it is contended that the petitioner was compelled to be a witness against himself, contrary to the 5th Amendment, because he was compelled to stand up and walk before the jury, and because, during a recess, the jury was stationed so as to observe his size and walk. If this was an error, as to which we express no opinion, it did not go to the jurisdiction of the court. Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366. Rule discharged. Writs denied. State of Nebraska to review a decree which affirmed a decree of the District Court of Lancaster County in that state, reforming a policy of fire insurance so as to express forcing the policy as so reformed, notwithconsent to concurrent insurance, and enstanding a prior judgment of the Supreme Court of the United States in an action at NOTE. As to full faith and credit to be given to state records and judicial proceedings -see notes to Lindley v. O'Reilly, 1 L. R.A. 131; Rand v. Hanson, 12 L.R.A. 574; R.A. 79; Cummington v. Belchertown, 4 L. Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 578; Darby v. Mayer, 6 L. ed. U. S. 367; Mills v. Duryee, 3 L. ed. U. S. 411; D'Arcy v. Ketchum, 13 L. ed. U. S. 648; and Huntington v. Attrill, 36 L. ed. U. S. 1123. As to election of remedies generallysee notes to Fowler v. Bowery Sav. Bank, 693; Crossman v. Universal Rubber Co. 13 4 L.R.A. 145; Conrow v. Little, 5 L.R.A. L.R.A. 91; and Mills v. Parkhurst, 13 L. R.A. 472. law denying any recovery on the policy. | choice of remedies. There was but one Affirmed. See same case below (Neb.) 102 N. W. 246. The facts are stated in the opinion. Mr. Charles J. Greene argued the cause, and, with Mr. Ralph W. Breckenridge, filed a brief for plaintiff in error: remedy open, and this was misconceived. Peters v. Bain, 133 U. S. 670-697, 33 L. ed. 696-706, 10 Sup. Ct. Rep. 354; 7 Enc. Pl. & Pr. p. 366; State v. Bank of Commerce, 6! Neb. 25, 84 N. W. 406; Omaha v. Redick, 61 Neb. 1C3; 85 N. W. 46; Simons v. Fagan, 62 Neb. 287, 87 N. W. 21; Gayer v. Parker, 24 Neb. 643, 8 Am. St. Rep. 227, 39 N. W. 845; Pekin Plow Co. v. Wilson, 66 Neb. 115, 92 N. W. 178; Chicago, B. & Q. R. Co. v. Bigley, 1 Neb. (Unof.) 225, 95 N. W. 344; Pinkham v. Pinkham, 60 Neb. 600, 83 N. W. 837; Lansing v. Commercial Union In the present proceeding, the building association seeks to establish an agreement which conflicts with the agreement expressed in the written policy, and which we submit has, by the judgment of this court, been conclusively determined to have been in force at the time of the fire. Steinbach v. Relief F. Ins. Co. 77 N. Y. Assur. Co. 4 Neb. (Unof.) 140, 93 N. W. 756. 498, 33 Am. Rep. 655. Where a plaintiff brings an action upon a written contract in a law court, he elects to stand upon the contract as written; and if he prosecutes his action to final judgment, and is defeated, he cannot afterwards have his written contract reformed in chancery. Black, Judgm. § 518, p. 615, §§ 632, 678, p. 816; Sanger v. Wood, 3 Johns. Ch. 416; Thomas v. Joslin, 36 Minn. 1, 1 Am. St. Rep. 624, 29 N. W. 344; Gaffney v. Megrath, 23 Wash. 476, 63 Pac. 520; Ward v. Green, 88 Tex. 177, 30 S. W. 864; Kearney Mill. & Elevator Co. v. Union P. R. Co. 97 Iowa, 719, 59 Am. St. Rep. 434, 66 N. W. 1059; Thompson v. Howard, 31 Mich. 312; Thomas v. United Firemen's Ins. Co. 108 Ill. App. 278. Mr. Joseph R. Webster argued the cause, and, with Messrs. Halleck F. Rose and Wilmer B. Comstock, filed a brief for defendant in error: Judgments and decrees of the circuit courts of the United States, sitting in a particular state, are to be accorded in the courts of that state such effect, only, as would be accorded, in similar circumstances, to the judgments and decrees of a state tribunal of equal authority. Dupasseur v. Rochereau, 21 Wall. 130, 22 L. ed. 588; Crescent City L. S. L. & S. H. Co. v. Butchers' Union, S. H. & L. S. L. Co. 120 U. S. 146, 30 L. ed. 616, 7 Sup. Ct. Rep. 472; Pendleton v. Russell, 144 U. S. 644, 36 L. ed. 576, 12 Sup. Ct. Rep. 743; Metcalf v. Watertown, 153 U. S. 676, 38 L. ed. 863, 14 Sup. Ct. Rep. 947; Hancock Nat. Bank v. Farnum, 176 U. S. 645, 44 L. ed. 621, 20 Sup. Ct. Rep. 506. The opinion below, so far from being a departure from the rules giving effect to the judgments of the courts of the state, is definitely rested upon prior authority defining the effect which, in like circumstances, is given to the judgments of the state courts. The present record does not present a case for the application of the doctrine of election, because the plaintiff did not have a' The institution or the prosecution of a suit to judgment is not an essential or decisive fact in determining the applicability of the doctrine of election, as the law is administered in the forum where this suit was tried. Chicago, B. & Q. R. Co. v. Bigley, supra. The judgment here assailed merely involves the exercise of one of the exclusive powers of equity, under circumstances which meet with the express sanction of the rule of this court; and the pleas of res judicata and election were disposed of according to time-honored doctrines, borrowed from the decisions of this court. Parker v. Circuit Court Judges, 12 Wheat. 561, 6 L. ed. 729; Smith v. M'Iver, 9 Wheat. 532, 6 L. ed. 152; Tilton v. Cofield, 93 U. S. 167, 23 L. ed. 859; Phelps v. Harris, 101 U. S. 370-383, 25 L. ed. 855-860; McComb v. Frink, 149 U. S. 629-644, 37 L. ed. 876-882, 13 Sup. Ct. Rep. 993; Brady v. Daly, 175 U. S. 148, 44 L. ed. 109, 20 Sup. Ct. Rep. 62. General authority also supports the doctrines of this court and those of the judg ment under review. Commercial Union Assur. Co. v. New Jer sey Rubber Co. 64 N. J. Eq. 338, 51 Atl. 451; Jenkins v. Harrison, 66 Ala. 345; Scully v Lowenstein, 56 Miss. 652; Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71; Hawley v. Simons, 102 Ill. 115; Schrepfer v. Rockford Ins. Co. 77 Minn. 291, 79 N. W. 1005; Conyers v. Mericles, 75 Ind. 443; Cramer v. Moore, 36 Ohio St. 347; Hill v. Combs, 92 Mo. App. 243; Re Van Norman, 41 Minn. 496, 43 N. W. 334; Bunch v. Grave, 111 Ind. 351, 12 N. E. 514; Fifield v. Edwards, 39 Mich. 266; Marsh v. Masterton, 101 N. Y. 407, 5 N. E. 59; Stowell v. Chamberlain, 60 N. Y. 272; Snow v. Alley, 156 Mass. 193, 30 N. E. 691; Kelsey v. Murphy, 26 Pa. 78; Morris v. Rexford, 18 N. Y. 557; McLaughlin v. Austin, 104 Mich. 489, 62 N. W. 719; Gould v. Blodgett, 61 N. H. 115; Smith v. Bricker, 86 Iowa, 285, 53 N. W. 250; Madden v. Louisville, N. O. & T. R. Co. 66 Miss. 258, 6 So. 181; Standard Oil Co. v. Hawkins, 33 L.R.A. 739, 20 C. C. A. 468, 46 U. S. App. 115, 74 Fed. 395; White v. Whiting, 8 Daly, 23; Bowdish v. Page, 81 Hun, 170, 30 N. Y. Supp. 691; Kittredge v. Holt, 58 N. H. 191. Mr. Justice Holmes delivered the opinion of the court: This is a bill to reform a policy and to recover upon it as reformed. An action at law upon the same instrument, between the same parties, has come before this court heretofore. 183 U. S. 308, 46 L. ed. 213, 22 Sup. Ct. Rep. 133. In that case it was held that the plaintiff could not recover. The question before us at the present time is whether the supreme court of Nebraska failed to give full faith and credit to the judgment in the former case by holding that it was no bar to the relief now sought. (Neb.) 102 N. W. 246. The policy was conditioned to be void in [107] case of other *insurance, unless otherwise provided by agreement indorsed or added; and it stated, in substance, that no officer or agent had power to waive the condition except by such indorsement or addition. There was other insurance and there was no indorsement. The plaintiff alleged a waiver and an estoppel. The jury found that the agent who issued the policy had been informed on behalf of the insured and knew of the outstanding insurance. But this court held that the attempt to establish a waiver was an attempt to contradict the very words of the written contract, which gave notice that the condition was insisted upon and could be got rid of in only one way, which no agent had power to change. The judgment based upon this decision is what is now relied upon as a bar. Metcalf v. Watertown, 153 U. S. 671, 676, 38 L. ed. 861, 863, 14 Sup. Ct. Rep. 947; Hancock Nat. Bank v. Farnum, 176 U. S. 640, 645, 44 L. ed. 619, 621, 20 Sup. Ct. Rep. 506. Whether sufficient grounds were shown for the relief which was granted is a matter with which we have nothing to do. But the state court was right in its answer to the question before us. The former decision, of course, is not an adjudication that the contract cannot be reformed. It was rendered in an action at law, and only decided that the contract could not be recovered upon as it stood, or be helped out by any doctrine of the common law. If it were to be a bar it would be so, not on the ground of the adjudication as such, but on the ground of election, expressed by the form in which the plaintiff saw fit to sue. As an adjudication it simply establishes one of the propositions on which the plaintiff relies, that it cannot recover upon the contract as it stands. The supposed election is the source of the effect attributed to the judgment. If that depended on matter in pais it might be a ques tion, at least, as was argued, whether such a case fell within either U. S. Const. art. 4, § 1, or Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677. It may be doubted whether the election must not at least necessarily appear on the face of the record as matter of law in order to give the judgment a standing under Rev. Stat. § 905. *We pass such doubts, because we are of[108] opinion that, however the election be stated, it is not made out. The plaintiff in the former action expressed on the record its reliance upon the facts upon which it now relies. It did not demand a judgment without regard to them and put them on one side, as was done in Washburn v. Great Western Ins. Co. 114 Mass. 175, where this distinction was stated by Chief Justice Gray. Its choice of law was not an election, but an hypothesis. It expressed the supposition that law was competent to give a remedy, as had been laid down by the supreme court of Nebraska and the circuit Home F. court of appeals for the circuit. Ins. Co. v. Wood, 50 Neb. 381, 386, 69 N. W. 941; Fireman's Fund Ins. Co. v. Norwood, 16 C. C. A. 136, 32 U. S. App. 490, 69 Fed. 71. So long as those decisions stood the plaintiff had no choice. It could not, or at least did not need to, demand reformation, if a court of law could effect the same result. It did demand the result, and showed by its pleadings that the path which it did choose was chosen simply because it was supposed to be an open way. Snow v. Alley, 156 Mass. 193, 195, 30 N. E. 691. A question argued as to the obligation of the contract having been impaired by a statute as construed was not taken below, and is not open here. Decree affirmed. IN IN ERROR to the Circuit Court of the 538, an action by the Interstate Commerce Mr. N. B. Hays submitted the cause for defendant in error. Messrs. John W. Ray and C. H. Morris were on the brief. by the act to regulate interstate commerce. Mr. Justice Day delivered the opinion of courts to entertain original suits in manthe court: In this case an original action in mandamus was begun in the circuit court of the United States for the eastern district of Kentucky. It was brought by the bridge company to compel the auditor of public accounts for the state to issue his warrant on the state treasury for the amount of a franchise tax collected under authority of §§ 4079 and 4080 of the Kentucky statutes. The return of the tax was asked upon the ground that it levied a burden on the interstate commerce business of the bridge company, pertaining exclusively to commerce between Kentucky and Ohio, and was therefore repugnant to the Federal Constitution. damus. The contention was rejected and the We deem it settled beyond controversy, until Congress shall otherwise provide, that circuit courts of the United States have no power to issue a writ of mandamus in an original action brought for the purpose of securing relief by the writ, and this result is not changed because the relief sought concerns an alleged right secured by the Constitution of the United States. It follows that the circuit court should have dismissed the case for want of jurisdiction instead of determining it upon the merits. The judgment dismissing the petition is therefore modified so as to show that the case was dismissed for want of jurisdiction, and, as thus modified, the judgment is affirmed. The auditor appeared by counsel, and, by general demurrer, raised the question of the sufficiency of the allegations of the petition, and by special demurrer challenged the ju- *COUNTY COMMISSIONERS OF WICO-[112] risdiction of the court to entertain the action. The circuit court, passing the question of jurisdiction, held that levying the tax in question did not violate the commerce clause of the Federal Constitution, as it was a tax upon property, and not upon the business of the company, sustained the general demurrer, and dismissed the petition. We are of opinion that the court below had no jurisdiction of this action. It has been too frequently decided in this court to require the citation of the cases that the circuit courts of the United States have no jurisdiction in original cases of mandamus, and have only power to issue such writs in aid of their jurisdiction in cases already pending, wherein jurisdiction has been acquired by other means and by other process. [111] *Many of the cases are caollected in 4 Fed. Stat. Annotated, 503. The question was before this court recently in Knapp v. Lake Shore & M. S. R. Co. 197 U. S. 536, 49 L. ed. 870, 25 Sup. Ct. Rep. MICO COUNTY V. SAMUEL BANCROFT, JR. (See S. C. Reporter's ed. 112-119.) Courts-following decisions of state courts. 1. Whether a repealable exemption from NOTE. As to state decisions and laws as rules of decision in Federal courts-see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553; Griffin v. Overman Wheel Co. 9 C. C. A. 548; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Clark v. Graham, 5 L. ed. U. S. 334; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Mitchell v. Burlington, 18 L. ed. U. S. 351. On repeal of statutes by implicationsee notes to State v. Massey, 4 L.R.A. 309; First Nat. Bank v. Weidenbeck, 38 C. C. A. 136: and United States v. 356 Caddies of Tobacco, 20 L. ed. U. S. 235. state taxation has been in fact repealed by a subsequent state statute is a question of state law, upon which the decisions of the highest courts of the state, in the absence of any contract rights, are binding on the Federal courts. Taxes-exemption-repeal. 2. The withdrawal of a repealable exemption from state taxation of the property of a reorganized railway company, if any such exemption existed, was effected by Md. Acts 1896, chap. 120, which directs a new assessment for taxation of the property in the state, and expressly declares that the property of every railroad shall be assessed for county and municipal purposes, and contains a proviso that nothing therein contained shall be held to discharge, release, or impair any irrepealable contract or obligation then existing, which sufficiently evidences the legislative intent to repeal exemptions from taxation which were not protected by binding contracts beyond legislative control, and to bring all property within the taxing power of the state. [No. 129.] Mr. Nicholas P. Bond submitted the cause for respondent. Messrs. Ralph Robinson and Edward Duffy were on the brief: The organization of the Baltimore, Chesapeake, & Atlantic Railway Company and the contracts between the railway and its bondholders had been entered into, and the rights of the bondholders thereon and arising therefrom, had accrued, at a time when the decisions in question had not been made. It is, we submit, the right of a complainant, under this state of facts, to have the independent judgment of this court upon his rights. It is to that very end that the courts of the United States are given authority to administer the laws of the state in controversies between citizens of different states. Mercantile Trust Co. v. Texas & P. R. Co. 51 Fed. 536. We fully admit the doctrine that where a state statute has been construed, or a rule of property established, at the time a transaction is entered into, or rights accrued, such construction or rule will bind the parties as Argued and submitted October 9, 1906. De- fully as though written into the transac ON cided November 5, 1906. N WRIT of Certiorari to the Circuit Court of Appeals for the Fourth Circuit to review a decree which affirmed a decree of the Circuit Court for the District of Maryland, enjoining state taxation of certain railway property. Reversed and remanded to the Circuit Court with directions to dismiss the bill. See same case below, 70 C. C. A. 287, 135 Fed. 977. The facts are stated in the opinion. Mr. James E. Ellegood argued the cause and filed a brief for petitioners: Is not the rule of construction adopted by the court of appeals of Maryland the rule of construction for this court? Commercial Bank v. Buckingham, 5 How. 342, 12 L. ed. 181; Baltimore & P. R. Co. v. Hopkins, 130 U. S. 223, 32 L. ed. 913, 9 Sup. Ct. Rep. 503; Central Land Co. v. Laidley, 159 U. S. 110, 40 L. ed. 94, 16 Sup. Ct. Rep. 80; State Railroad Tax Cases, 92 U. S. 575617, 23 L. ed. 663-674; Fairfield v. Gallatin County, 100 U. S. 47, 25 L. ed. 544; Wilson v. Standefer, 184 U. S. 412, 46 L. ed. 618, 22 Sup. Ct. Rep. 384; Gulf & S. I. R. Co. v. Hewes, 183 U. S. 68, 46 L. ed. 87, 22 Sup. Ct. Rep. 26. The repugnancy between the exemption in the statute, and the statute which was intended as a revision of the laws upon the subject of taxation, repeals the exemption. Columbia Mfg. Co. v. Vanderpoel, 4 Cow. 556; State v. Northern C. R. Co. 90 Md. 472, 45 Atl. 465, 187 U. S. 266, 47 L. ed. 170, 23 Sup. Ct. Rep. 02. | tion; but, where no such construction was then in force, we are entitled to have this statute construed by the independent judgment of this court. Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Carroll County v. Smith, 111 U. S. 556, 28 L. ed. 517, 4 Sup. Ct. Rep. 539; Anderson v. Santa Anna Twp. 116 U. S. 356, 29 L. ed. 633, 6 Sup. Ct. Rep. 413. This respondent is entitled to have his rights determined according to the law as it existed on September 1, 1894, at which time the rights of bondholders accrued. Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334, 47 U. S. App. 36, 76 Fed. 296. The part of § 2, chap. 120, of the Acts of 1896, relied upon by the petitioners to show a clear intention on the part of the legislature to repeal the exemption conferred by the act of 1886, chap. 133, is not sufficient for that purpose. 1st. Because this language is no broader than that to be found in § 155 of art. 81, which was in force at the time the exemption secured by chapter 133 of the Acts of 1886 was granted the Baltimore & Eastern Shore Railroad Company, and, in so far as it can be held to imply a repeal of this exemption, is copied word for word from 8 155. 2d. Because this part of § 2 of chap. 120 of the Acts of 1896 is unconstitutional, being an attempt to incorporate into an amendment of § 2 a distinct section of article 81, which is not named in the title of the act. Davis v. State, 7 Md. 151, 61 Am. Dec. 331; Stiefel v. Maryland Inst. 61 Md. 144. |